[Federal Register Volume 64, Number 67 (Thursday, April 8, 1999)]
[Proposed Rules]
[Pages 17222-17227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8274]
[[Page 17221]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Coast Guard
_______________________________________________________________________
Environmental Protection Agency
_______________________________________________________________________
33 CFR Part 154
Response Plans for Marine Transportation-Related Facilities Handling
Non-Petroleum Oils; Proposed Rule
40 CFR Part 112
Oil Pollution Prevention and Response; Non-Transportation-Related
Facilities; Proposed Rule
Federal Register / Vol. 64, No. 67 / Thursday, April 8, 1999 /
Proposed Rules
[[Page 17222]]
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 154
[USCG-1999-5149]
RIN 2115-AF79
Response Plans for Marine Transportation-Related Facilities
Handling Non-Petroleum Oils
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to amend its regulations requiring
response plans for marine transportation-related facilities that
handle, store, or transport animal fats or vegetable oils.
Specifically, the proposal downgrades the initial classification of
affected facilities, clarifies planning and equipment requirements, and
further harmonizes our regulations with the Environmental Protection
Agency's response planning regulations. This proposal addresses a
statutory mandate and an industry petition.
DATES: Comments must reach the Docket Management Facility on or before
July 7, 1999.
ADDRESSES: You may mail your comments to the Docket Management
Facility, (USCG-1999-5149), U.S. Department of Transportation, room PL-
401, 400 Seventh Street SW., Washington DC 20590-0001, or deliver them
to room PL-401 on the Plaza level of the Nassif Building at the same
address between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. The telephone number is 202-366-9329. The Docket
Management Facility maintains the public docket for this rulemaking.
Comments, and documents as indicated in this preamble will become part
of this docket and will be available for inspection or copying at room
PL-401 on the Plaza level of the Nassif Building at the same address
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also access this docket on the Internet at http://
dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: For questions on this proposed rule,
contact Mr. Mark Meza, Project Manager, Office of Response (G-MOR)
Coast Guard, telephone 202-267-0304; email [email protected]. For
questions on viewing, or submitting material to, the docket, contact
Dorothy Walker, Chief, Dockets, Department of Transportation, telephone
202-366-9329.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages you to participate in this rulemaking by
submitting written data, views, or arguments. You should include your
name and address, identify this rulemaking (USCG-1999-5149) and the
specific section of this document to which each comment applies, and
give the reason for each comment. Please submit all comments and
attachments in an unbound format, no larger than 8\1/2\ by 11 inches,
suitable for copying and electronic filing to the Docket Management
Facility at the address under ADDRESSES. You should enclose a stamped,
self-addressed postcard or envelope, if you want acknowledgment that we
received your comments.
The Coast Guard will consider all comments received during the
comment period. It may change this proposed rule in view of the
comments.
The Coast Guard plans no public hearing. Persons may request a
public hearing by writing to the Docket Management Facility at the
address under ADDRESSES. The request should include the reasons why a
hearing would be beneficial. If it determines that the opportunity for
oral presentations will aid this rulemaking, the Coast Guard will hold
a public hearing at a time and place announced by a later notice in the
Federal Register.
Background and Purpose
On October 21, 1998, Congress passed the Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277).
Section 343(b) of that act mandates the Coast Guard to amend, by March
31, 1999, 33 CFR part 154 to comply with the Edible Oil Regulatory
Reform Act (EORRA) (Pub. L. 104-55).
On March 14, 1997, the National Oil Processors Association (NOPA)
petitioned the Coast Guard to change response plan regulations for
marine transportation-related (MTR) facilities to more fully
differentiate animal fat and vegetable oil facilities from other oil
facilities.
This notice of proposed rulemaking (NPRM) addresses the mandate
from Congress and the petition from NOPA. This NPRM proposes amendments
only to response plan requirements for MTR facilities that handle,
store, or transport animal fats and vegetable oils.
Legislative and Regulatory History
On August 18, 1990, Congress passed the Oil Pollution Act of 1990
(OPA 90) (Pub. L. 101-380) in response to several major oil spills. OPA
90 amended section 311(j) of the Federal Water Pollution Control Act
(FWPCA) (33 U.S.C. 1321(j)) establishing requirements, and an
implementation schedule, for facility response plans. The FWPCA, as
amended by OPA 90, directs the President to issue regulations requiring
response plans for MTR facilities transferring oil.
The President delegated the authority to issue these regulations to
the Commandant, U.S. Coast Guard via the Secretary of the Department of
Transportation. On February 5, 1993, the Coast Guard published an
interim final rule (IFR) in the Federal Register entitled ``Response
Plans for Marine Transportation-Related Facilities''(58 FR 7330).
On November 20, 1995, Congress passed the Edible Oil Regulatory
Reform Act (EORRA). This Act requires Federal agencies to differentiate
between fats, oils, and greases of animal, marine, or vegetable origin,
and other oils and greases, in issuing regulations. The Act also
requires Federal agencies to consider the environmental effects and the
physical, chemical, biological, and other properties of the different
classes of fats, oils, and greases.
On February 29, 1996, having met the requirements of the EORRA and
based on comments received to the IFR, the Coast Guard published its
final rule (FR) on response plans for MTR facilities in the Federal
Register (61 FR 7890). These regulations are codified in 33 CFR part
154, subparts F through I. The final rule added two new subparts to the
response plan regulations (subparts H and I). Subpart H contains
planning requirements for animal fat and vegetable oil facilities and
subpart I contains planning requirements for other non-petroleum oils
facilities. The final rule also allows animal fat and vegetable oil
facilities to propose needed response equipment and personnel for worst
case discharges (WCD), rather than the specific equipment and personnel
required for petroleum oil facilities.
On October 19, 1996 Congress passed the Coast Guard Authorization
Act of 1996 (Pub. L. 104-324). Section 1130 of that act requires the
Secretary of Transportation to submit to Congress an annual report
describing how new Coast Guard regulations meet EORRA requirements. The
Secretary of Transportation submitted reports on April 11, 1997, and
March 3, 1998. The reports, available in the public docket for this
proposed rule, describe how the Coast Guard's regulations meet the
EORRA requirements.
In a letter dated March 14, 1997, NOPA filed a petition with the
Coast Guard requesting amendments to the
[[Page 17223]]
MTR facility response plan regulations. The petition requested separate
and appropriate regulations for facilities that handle animal fats and
vegetable oils. A detailed listing of the petitioners' requests follows
this section.
On October 27, 1997, Congress passed the Department of
Transportation and Related Agencies Appropriations Act of 1998 (Pub. L.
105-66). Section 341 of that Act stated that the Coast Guard could not
use any of the available funds to issue, implement, or enforce a
regulation or to establish an interpretation or guideline under the
EORRA that did not recognize and provide for differences in--
Physical, chemical, biological, and other relevant
properties; and
Environmental effects.
On October 21, 1998, Congress passed the Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1999. Section 343(b) of
that act states that not later than March 31, 1999, the Coast Guard
shall issue regulations amending 33 CFR part 154 to comply with the
requirements of the EORRA.
On October 21, 1998, Congress also passed the Departments of
Veterans Affairs and Housing and Urban Development, and Independent
Agencies Appropriations Act of 1999 (Pub. L. 105-276), which contains a
similar requirement for EPA to amend, not later than March 31, 1999,
its regulations to comply with EORRA. On January 16, 1998, NOPA filed,
with EPA, a petition virtually identical to the one filed with the
Coast Guard. In a separate notice of proposed rulemaking (NPRM), EPA
proposes modifications to its response plan rules for animal fat and
vegetable oil facilities. Each agency's NPRM accounts for the
characteristics of facilities in its jurisdiction. To further harmonize
requirements, the two agencies have worked together to develop their
respective NPRMs. The Coast Guard and EPA will continue to work
together to draft their respective final rules.
Petition to the Coast Guard
The petition filed by NOPA requests the following changes to our
existing regulations.
(a) Downgrading the initial classification of affected facilities
from significant and substantial harm to substantial harm. The Coast
Guard proposes this change. A detailed justification for downgrading
the initial classification of animal fat and vegetable oil facilities
follows this section.
(b) Relaxing the current response time for response resources to be
at a spill site from 12 hours to 24 hours. The petitioners also
requested that we relax response time in high volume ports (HVPs) from
6 hours to 12 hours. The Coast Guard does not propose relaxing response
times. The request could have the effect of doubling the response time
in the event of a spill. This change would significantly reduce the
effectiveness of a response. Immediate action is critical when
mitigating a spill. A quick response prevents problems with controlling
and collecting oil. Control and collection are more difficult when the
oil has dispersed or combined with water. Relaxing the times for
delivery of dispersants limits their usefulness because dispersants,
when needed, must be applied before significant emulsification and
distribution of the oil.
(c) Revising the regulations to explicitly state the alternative of
taking no action if mitigation activity is more harmful to the
environment. The Coast Guard does not propose this change. Stating no
action in the regulations may lead industry to conclude that no action
is an option in any circumstance. The Federal On-Scene Coordinator
(FOSC) already has the authority to decide on the appropriate level of
response action, ranging from taking no action to taking vigorous and
extensive action. Response levels are based on factors such as--
Spill amount;
Proximity to threatened areas;
Type of oil;
Weather conditions; and
Currents and tides.
(d) Relaxing the requirement for equipment exercises from
semiannual to annual. The Coast Guard does not propose this change.
Such action would reduce by half the number of exercises for an animal
fat or vegetable oil facility. Such action would make these exercises
too infrequent. Semiannual equipment exercises ensure facilities
maintain their ability to respond to spills.
(e) Clarifying the provision that facilities may use public fire
fighting resources under the terms of cooperative agreements. The
current wording in the regulations permits public resources that are
supported by local municipal, county, city, or state organizations, as
well as other resources, which may be supported by industry. However,
under a separate regulatory project (USCG-1998-3497), the Coast Guard
is reviewing the possible conditions under which the industry as a
whole needs fire fighting resources, and may propose further guidelines
based on that review. Therefore, the Coast Guard will retain the
current wording in subpart H because it is sufficiently clear to meet
the intent of the petitioner's request. We may revise the regulations
in the future based on our ongoing review.
(f) Allowing a facility, as a condition of participating in Area
Exercises, be the lead exercise developer and final decision authority
on exercise design. The Coast Guard does not propose this change. The
Coast Guard anticipates that the facility would, of necessity, be a key
participant, and often the lead, in planning for an Area Exercise.
However, to require their leadership and final approval would unduly
limit the authority of the FOSC and constrain the Area Committee in
fulfilling its statutory responsibilities.
(g) Eliminating the requirement for annual plan reviews while
retaining the requirement to report changes to plans as they occur. The
Coast Guard does not propose this change. The Coast Guard concluded
that thorough and regular review of plans is desirable and necessary.
Formal plan reviews ensure plan holders keep critical information such
as phone contacts, reporting requirements, and equipment inventories
up-to-date.
Discussion of Proposed Rule
The Coast Guard proposes the following three changes to our
existing regulations.
(a) Downgrading the initial classification of affected facilities
from significant and substantial harm to substantial harm. Initially,
the Coast Guard would consider all animal fat and vegetable oil
facilities as substantial harm facilities and the Captain of the Port
(COTP) would have the authority to upgrade each facility to a
significant and substantial harm based on the criteria in our proposed
33 CFR 154.1216(b). The Coast Guard's Marine Safety Information System
(MSIS) database collects information on various marine activities. By
using MSIS to review facility spill history between 1992 and 1998, we
found that 28 of 31 spills (90%) of animal fats and vegetable oils were
less than 1,000 gallons; 23 of 28 (82%) were less than 100 gallons.
While animal fats and vegetable oils are just as damaging to the
environment as other oils, when spilled in bulk, we propose to
reclassify animal fat and vegetable oil facilities from significant and
substantial harm to substantial harm taking into account this history
of spills of very small amounts.
(b) Requiring planning for an average most probable discharge
(AMPD). The spill history used to justify downgrading animal fat and
vegetable oil facilities shows a pattern of relatively small spill
volumes. These volumes meet the criteria for AMPD volumes defined in 33
CFR 154.1020. Accordingly, we
[[Page 17224]]
propose requiring AMPD planning. By proposing AMPD planning, the Coast
Guard will further harmonize our regulations with EPA's. The Coast
Guard does not think requiring AMPD planning will increase planning
burdens for animal fat and vegetable oil facilities. Under 33 CFR
154.545, we already require oil facilities to plan for AMPD volumes.
Animal fat or vegetable oil facilities may use the requirements under
33 CFR 154.545 to satisfy our proposed AMPD planning requirements. Our
proposed 33 CFR 154.545(e) explicitly allows this option.
(c) Requiring at least 1,000 feet of boom. Current regulations
require at least 1,000 feet of boom for Group I through Group IV
petroleum oils. Groups of oils are explained in the definitions for
persistent and non-persistent oils under 33 CFR 154.1020. Current
regulations also require a minimum of 200 feet of boom for mobile and
fixed substantial harm animal fat or vegetable oil facilities. We
consider 200 feet inadequate for fixed animal fat or vegetable oil
facilities. The Coast Guard proposes requiring, to be on scene within
one hour, the greater of 1,000 feet of boom or twice the length of the
longest vessel that regularly conducts operations at a fixed facility.
The Coast Guard estimates that fixed animal fat and vegetable oil
facilities already have access to at least 1,000 feet of boom through
existing worse case discharge (WCD) volume planning. We do not propose
any changes to the minimum requirement of 200 feet of boom for mobile
facilities.
Changes Proposed by EPA
In its NPRM, EPA proposes tables to calculate planning volumes for
animal fat or vegetable oil facilities. EPA's proposed tables are
similar to existing tables in both agencies' regulations. Current Coast
Guard and EPA regulations allow animal fat and vegetable oil facilities
to determine how to calculate planning volumes. The Coast Guard and EPA
allowed this self-determination because, when drafting the final rules,
neither the Coast Guard nor EPA had the necessary data on animal fats
and vegetable oils to create such tables. In addition, the agencies
determined that current guidelines and practices provided the regulated
industry with flexibility in meeting required planning criteria. Since
then, EPA has obtained scientific studies and information on the
behavior of animal fats and vegetable oils, and has used these studies
to develop the proposed tables. These tables are based on the behavior
of animal fats and vegetable oils and on their chemical and physical
properties. The tables separate oils based on their specific gravity.
Oils with a specific gravity greater than one generally sink below the
water surface. As proposed by EPA, the owner or operator of a facility
handling, storing, or transporting an oil with a specific gravity
greater than one, is responsible for determining appropriate resources
to mitigate such an oil spill. Proposed resources should include:
Equipment to locate oil on the bottom or suspended in the
water;
Containment boom or other equipment to contain any oil
floating on the surface; and
Dredges, pumps or other equipment to recover oil from the
bottom and shoreline.
At this time, the Coast Guard does not propose the tables. The
Coast Guard seeks public comment on the appropriateness of the tables
for the Coast Guard's distinct regulated community and geographic
areas.
EPA has documents containing information used to create their
proposed tables. EPA has provided copies of these documents to us to
include in the Coast Guard docket. EPA has cited these documents in the
notice of denial of petition to amend the facility response plan rule
[62 FR 54508 (October 20, 1997)] and in their NPRM on Oil Pollution
Prevention and Response at Non-Transportation-Related Facilities
published elsewhere in today's Federal Register.
Table 1.--Removal Capacity Planning
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Spill location Rivers and canals Nearshore/inland Great Lakes
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Sustainability of on-water oil recovery 3 days 4 days
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Percent Percent Percent Percent
Specific gravity (S.G.) of AF/VO oil Percent recovered recovered Percent recovered recovered
natural loss floating oil onshore natural loss floating onshore
--------------------------------------------------------------------------------------------------------------------------------------------------------
S.G.<0.8................................................ 40 15 45 50 20 30
0.8S.G.<1.0.................................. 20 15 65 30 20 50
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2.--Emulsification Factors
------------------------------------------------------------------------
Specific gravity (S.G.) of AF/VO oil Factor
------------------------------------------------------------------------
S.G.<0.8................................................ 1.0
0.8S.G.<1.0.................................. 2.0
------------------------------------------------------------------------
Planning Volume = WCD x T1 x T2;
Where
WCD = Worst case discharge volume defined in 33 CFR 1029.
T1 = Value from Table 1.
T2 = Value from Table 2.
Regulatory Evaluation
The Office of Management and Budget (OMB) has informally reviewed
the proposed rule and has made a preliminary determination that the
rule is not a significant regulatory action under section 3(f) of
Executive Order 12866. OMB may reassess the significance depending on
the comments received. This proposed rule is not significant under the
regulatory policies and procedures of the Department of Transportation
(44 FR 11040; February 26, 1979). A draft assessment is available in
the docket for inspection or copying where indicated under ADDRESSES. A
summary of the assessment follows:
Summary of Costs
As a result of research conducted by the Coast Guard Marine Safety
Offices, the Coast Guard estimates that there are 80 fixed facilities
affected by this proposed rule. This proposed rule includes three
measures that impact industry. The first measure, downgrading animal
fat or vegetable oil facilities from significant and substantial harm
to substantial harm would not result in any additional costs to the
industry. The second measure, requiring average most probable discharge
planning, could result in minor additional costs to the industry by
increasing the amount of information a facility has to report. The
Coast Guard estimates that owners or operators of facilities will spend
4 hours changing their response plans. The additional cost per response
would be $140 ($35 per hour x 4 burden hours). The total estimated
annual cost for all 80 facilities would be $11,200 (80 facilities x
$140 per response plan). Finally, the Coast Guard does not expect that
requiring a
[[Page 17225]]
minimum amount of boom for fixed facilities will add any cost to the
proposed rule. When planning for a WCD under current regulations, we
estimate fixed animal fat and vegetable oil facilities, regardless of
their classification, already identify in their response plans the
greater of 1,000 feet or twice the length of the longest vessel that
regularly conducts operations at the facility of boom, that can be
deployed on scene within one hour of an incident. Therefore, the Coast
Guard estimates that 100 percent of the regulated, fixed facilities
already meet this requirement.
The proposed rule would decrease costs to the government. Those
facilities downgraded from significant and substantial harm to
substantial harm would not need Coast Guard approval of their response
plans. Therefore, the workload of Coast Guard field units would
decrease.
Summary of Benefits
The proposed rule would further harmonize Federal agency
regulations, formalize discharge planning for smaller and more common
spills, and maintain an adequate quantity of boom at the facilities.
The downgrade in classification of affected facilities to substantial
harm further harmonizes Coast Guard and EPA regulations. The Coast
Guard found that 28 of 31 spills (90%) of animal fats and vegetable
oils were less than 1,000 gallons; 23 of 28 (82%) were less than 100
gallons. Planning for the average most probable discharge would address
these smaller, more frequent spills. Finally, the Coast Guard proposes
that fixed facility owners and operators have ready access to 1,000
feet of boom or twice the length of the longest vessel that regularly
conducts operations at the facility. This requirement ensures that
adequate boom is readily available for most discharges and that
existing levels of boom are maintained.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast
Guard considers whether this proposed rule, if adopted, will have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.
An Initial Regulatory Flexibility Analysis discussing the impact of
this proposed rule on small entities is available in the docket for
inspection or copying where indicated under ADDRESSES.
The Coast Guard has identified 80 fixed animal fat and vegetable
oil facilities that would be affected by this proposed rule. The
proposed additional level of response planning would result in only
minor additional informational reporting burdens. Each of the 80
affected facilities would incur 4 additional hours of information
reporting burden. This would result in an additional cost of $140 per
facility
(4 hours x $35 per hour). The Coast Guard chose to require facilities
to plan for AMPD spills because the spill history of these facilities
shows a pattern of relatively small spill volumes.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this proposed rule, if adopted, will not have a significant economic
impact on a substantial number of small entities. If, however, you
think that your business or organization qualifies as a small entity
and that this proposed rule will have a significant economic impact on
your business or organization, please submit a comment to the Docket
Management Facility at the address under ADDRESSES explaining why you
think it qualifies and in what way and to what degree this proposed
rule will economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist
small entities in understanding this proposed rule so that they can
better evaluate its effects on them and participate in the rulemaking
process. If your small business or organization is affected by this
rule and you have questions concerning its provisions or options for
compliance, please contact the Project Development Division (G-MSR-1)
at 202-267-0756.
The Small Business and Agriculture Regulatory Enforcement Ombudsman
and 10 Regional Fairness Boards were established to receive comments
from small businesses about Federal agency enforcement actions. The
Ombudsman will annually evaluate the enforcement activities and rate
each agency's responsiveness to small business. If you wish to comment
on the enforcement actions of the Coast Guard, call 1-888-REG-FAIR (1-
888-734-3247).
Collection of Information
This proposed rule provides for a collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined
in 5 CFR 1320.3(c) ``collection of information'' includes reporting,
recordkeeping, monitoring, posting, labeling, and other, similar
actions. The title and description of the respondents, and an estimate
of the total annual burden follow. Included in the estimate is the time
for reviewing instructions, searching existing sources of data,
gathering and maintaining the data needed, and completing and reviewing
the collection.
Title: Response Plans For Marine-Transportation-Related Facilities
Handling Non-petroleum Oils.
Summary of Collection: This proposed rule contains collection-of-
information requirements in the following section: Sec. 154.1220 and
Sec. 154.1225.
Need for Information: This proposed rule would require owners or
operators of each facility to modify their facility response plans to
plan for an AMPD of animal fats and vegetable oils.
Proposed Use of Information: The proposed use of this information
is to ensure that such facilities are prepared to respond in the event
of a spill incident. The information would be reviewed by the Coast
Guard to assess the effectiveness of the facility response plans.
Description of the Respondents: An owner or operator of a facility
that handles, stores or transports animal fats and vegetable oils.
Number of respondents: 80 facilities.
Frequency of Response: Annual.
Burden of response: 4 hours per respondent.
Estimated Total Annual burden: 320 hours.
As required by section 3507(d) of the Paperwork Reduction Act of
1995, the Coast Guard has submitted a copy of this proposed rule to the
Office of Management and Budget (OMB) for its review of the collection
of information.
The Coast Guard solicits public comment on the proposed collection
of information to (1) evaluate whether the information is necessary for
the proper performance of the functions of the Coast Guard, including
whether the information would have practical utility; (2) evaluate the
accuracy of the Coast Guard's estimate of the burden of the collection,
including the validity of the methodology and assumptions used; (3)
enhance the quality, utility, and clarity of the information to be
collected; and (4) minimize the burden of the collection on those who
are to respond, as by allowing the submittal of responses by electronic
means or the use of other forms of information technology.
Persons submitting comments on the collection of information should
submit
[[Page 17226]]
their comments both to OMB and to the Docket Management Facility where
indicated under ADDRESSES by the date under DATES.
Persons are not required to respond to a collection of information
unless it displays a currently valid OMB control number. Before the
requirements for this collection of information become effective, the
Coast Guard will publish a notice in the Federal Register of OMB's
decision to approve, modify, or disapprove the collection.
Federalism
The Coast Guard has analyzed this proposed rule under the
principles and criteria contained in Executive Order 12612 and has
determined that this proposed rule does not have sufficient
implications for federalism to warrant the preparation of a Federalism
Assessment.
Environment
The Coast Guard considered the environmental impact of this
proposed rule and concluded that under figure 2-1, paragraph (34)(a)
and (e), of Commandant Instruction M16475.lC, this proposed rule is
categorically excluded from further environmental documentation. This
rule will not result in--
(a) Significant cumulative impacts on the human environment;
(b) A substantial controversy or substantial change to existing
environmental conditions;
(c) Impacts which are more than minimal on properties protected
under 4(f) the DOT Act, as superseded by Public Law 97-449 and section
106 of the National Historic Preservation Act; or
(d) Inconsistencies with any Federal, State, or local laws, or
administrative determinations relating to the environment.
``Categorical Exclusion Determination'' is available in the docket for
inspection or copying where indicated under ADDRESSES.
Other Executive Orders on the Regulatory Process
In addition to the statutes and Executive Orders already addressed
in this preamble, the Coast Guard considered the following Executive
Orders in developing this NPRM and reached the following conclusions:
E.O. 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights. This proposed rule will not
effect a taking of private property or otherwise have taking
implications under this Order.
E.O. 12875, Enhancing the Intergovernmental Partnership. This
proposed rule will not impose, on any State, local, or tribal
government, a mandate that is not required by statute and that is not
funded by the Federal government.
E.O. 12988, Civil Justice Reform. This proposed rule meets
applicable standards in sections 3(a) and 3(b)(2) of this Order to
minimize litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks. This proposed rule is not an economically significant
rule and does not concern an environmental risk to safety
disproportionately affecting children.
List of Subjects in 33 CFR Part 154
Fire prevention, Hazardous substances, Oil pollution, Reporting and
record keeping requirements.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 154 as follows:
PART 154--FACILITIES TRANSFERRING OIL OR HAZARDOUS MATERIALS IN
BULK
1. The authority citation for part 154 continues to read as
follows:
Authority: 33 U.S.C. 1231, 1321(j)(1)(C), (j)(5), (j)(6) and
(M)(2); sec. 2, E.O. 12777, 56 FR 54757; 49 CFR 1.46.
Subpart F is also issued under 33 U.S.C. 2735.
Sec. 154.545 [Amended]
2. In Sec. 154.545(e), add the words ``and subpart H'' after the
words ``of subpart F''.
Sec. 154.1020 [Amended]
3. In Sec. 154.1020, in the definition for Facility that could
reasonably be expected to cause significant and substantial harm,
remove all words after ``under Sec. 154.1015(c)'' and add, in their
place, the words ``and Sec. 154.1216.''.
4. In Sec. 154.1020, in the definition for Facility that could
reasonably be expected to cause substantial harm, remove all words
after ``under Sec. 154.1015(b)'' and add, in their place, the words
``and Sec. 154.1216.''.
5. Revise Sec. 154.1210 to read as follows:
Sec. 154.1210 Purpose and applicability.
(a) The requirements of this subpart are intended for use in
developing response plans and identifying response resources during the
planning process. They are not performance standards.
(b) This subpart establishes oil spill response planning
requirements for an owner or operator of a facility that handles,
stores, or transports animal fats and vegetable oils including--
(1) A fixed MTR facility capable of transferring oil in bulk, to or
from a vessel with a capacity of 250 barrels or more; and
(2) A mobile MTR facility used or intended to be used to transfer
oil to or from a vessel with a capacity of 250 barrels or more.
6. Add Sec. 154.1216 to read as follows:
Sec. 154.1216 Facility classification.
(a) The Coast Guard classifies facilities that handle, store, or
transport animal fats or vegetable oils as ``substantial harm''
facilities because they may cause substantial harm to the environment
by discharging oil.
(b) The COTP may change the classification of a facility that
handles, stores, or transports animal fats or vegetable oils. The COTP
will consider the following factors, and any other relevant factors,
before changing the classification of a facility:
(1) The type and quantity of oils handled.
(2) The spill history of the facility.
(3) The age of the facility.
(4) The public and commercial water supply intakes near the
facility.
(5) The navigable waters near the facility. Navigable waters is
defined in 33 CFR 2.05-25.
(6) The fish, wildlife, and sensitive environments.
7. Revise Sec. 154.1220 to read as follows:
Sec. 154.1220 Response plan submission requirements.
(a) The owner or operator of an MTR facility identified in
Sec. 154.1216 as a substantial harm facility, shall prepare and submit
to the cognizant COTP a response plan that meets the requirements of
this subpart and all sections of subpart F of this part, as
appropriate, except Secs. 154.1015, 154.1016, 154.1017, 154.1028,
154.1035, 154.1045 and 154.1047.
(b) The owner or operator of an MTR facility classified by the COTP
under Sec. 154.1216(b) as a significant and substantial harm facility,
shall prepare and submit for review and approval of the cognizant COTP
a response plan that meets the requirements of this subpart and all
sections of subpart F of this part, as appropriate, except
Secs. 154.1015, 154.1016, 154.1017, 154.1028, 154.1045 and 154.1047.
(c) In addition to the requirements in paragraph (a) of this
section, the response plan for a mobile MTR facility must meet the
requirements of Sec. 154.1041 subpart F.
8. In Sec. 154.1225, revise the section heading and paragraphs (a)
introductory
[[Page 17227]]
text, (a)(1), (b), (c), (d), and (e) to read as follows:
Sec. 154.1225 Specific response plan development and evaluation
criteria for fixed facilities that handle, store, or transport animal
fats and vegetable oils.
(a) The owner or operator of a fixed facility that handles, stores,
or transports animal fats or vegetable oils must include information in
the response plan that identifies--
(1) The procedures and strategies for responding to a worst case
discharge and to an average most probable discharge of an animal fat or
vegetable oil to the maximum extent practicable; and
* * * * *
(b) The owner or operator of a fixed facility must make sure the
equipment listed in the response plan will operate in the geographic
area(s) where the facility operates. To determine if the equipment will
operate, the owner or operator must--
(1) Use the criteria in table 1 and section 2 of appendix C of this
part; and
(2) Consider the limitations in the area contingency plan for the
COTP zone where the facility is located, including--
(i) Ice conditions;
(ii) Debris;
(iii) Temperature ranges; and
(iv) Weather-related visibility.
(c) The owner or operator of a facility that handles, stores, or
transports animal fats or vegetable oils must name the personnel and
list the equipment, including those specified in Sec. 154.1240, that
are available by contract or by a method described in Sec. 154.1228(a).
(d) The owner or operator of a facility that handles, stores, or
transports animal fats or vegetable oils must ensure that the response
resources in paragraph (c) of this section are able to effectively
respond to an incident within the amount of time indicated in the
following table, unless otherwise specified in Sec. 154.1240:
------------------------------------------------------------------------
Tier 1
(hrs.) Tier 2 Tier 3
------------------------------------------------------------------------
Higher volume port area........ 6 N/A.......... N/A
Great Lakes.................... 12 N/A.......... N/A
All other river and canal, 12 N/A.......... N/A
inland, nearshore, and
offshore areas.
------------------------------------------------------------------------
(e) The owner or operator of a facility that handles, stores, or
transports animal fats or vegetable oils must--
(1) List in the plan the personnel and equipment that the owner or
operator will use to fight fires.
(2) If there is not enough equipment or personnel located at the
facility, arrange by contract or a method described in Sec. 154.1228(a)
to have the necessary personnel and equipment available to fight fires.
(3) Identify an individual located at the facility who will work
with the fire department on fires, involving an animal fat or vegetable
oil. The individual--
(i) Verifies that there are enough trained personnel and operating
equipment within a reasonable distance to the incident to fight fires.
(ii) Can be the qualified individual defined in Sec. 154.1020 or an
appropriate individual located at the facility.
* * * * *
9. Add Sec. 154.1240 to subpart H to read as follows:
Sec. 154.1240 Specific requirements for animal fats and vegetable oils
facilities that could reasonably be expected to cause substantial harm
to the environment.
(a) The owner or operator of a facility, classified under
Sec. 154.1216 as a facility that could reasonably expect to cause
substantial harm to the environment, must submit a response plan that
meets the requirements of Sec. 154.1035, except as modified by this
section.
(b) The plan does not need to list the facility or corporate
organizational structure that the owner or operator will use to manage
the response, as required by Sec. 154.1035(b)(3)(iii).
(c) The owner or operator must ensure and identify, by contract or
a method described in Sec. 154.1228, that the response resources
required under Sec. 154.1035(b)(3)(iv) are available.
(d) For a fixed facility, the owner or operator must also
identify--
(1) By contract, at least 1,000 feet of containment boom or two
times the length of the longest vessel that regularly conducts
operations at the facility, whichever is greater, and the means of
deploying and anchoring the boom within 1 hour of an incident. Based on
site-specific or facility-specific information, the COTP may require
the facility owner or operator to make available additional quantities
of containment boom within 1 hour of an incident;
(2) Adequate sorbent material located at the facility;
(3) Oil recovery devices and recovered oil storage capacity capable
of being at the incident's site within 2 hours of an incident; and
(4) Other appropriate equipment necessary to respond to an incident
involving the type of oil handled.
(e) For a mobile facility, the owner or operator must also--
(1) Meet the requirements of Sec. 154.1041;
(2) Have at least 200 feet of containment boom and the means of
deploying and anchoring the boom within 1 hour of an incident. Based on
site-specific or facility-specific information, the COTP may require
the facility owner or operator to make available additional quantities
of containment boom within 1 hour of an incident;
(3) Have adequate sorbent material capable of being at the site of
an incident within 1 hour of its discovery;
(4) Oil recovery devices and recovered oil storage capacity capable
of being at incident's site within 2 hours of an incident; and
(5) Other equipment necessary to respond to an incident involving
the type of oil handled.
Dated: March 24, 1999.
J.C. Card,
Vice Admiral, U.S. Coast Guard, Acting Commandant.
[FR Doc. 99-8274 Filed 4-2-99; 12:33 pm]
BILLING CODE 4910-15-P