[Federal Register Volume 65, Number 127 (Friday, June 30, 2000)]
[Rules and Regulations]
[Pages 40820-40827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16079]



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Part IV





Department of Transportation





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Coast Guard



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33 CFR Part 154



Response Plans for Marine Transportation-Related Facilities Handling 
Non-Petroleum Oils; Final Rule

  Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules 
and Regulations  

[[Page 40820]]


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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: Final rule.

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SUMMARY: This final rule amends Coast Guard regulations requiring 
response plans for marine transportation-related (MTR) facilities that 
handle, store, or transport animal fats or vegetable oils. 
Specifically, the new rule downgrades the initial classification of 
affected facilities and clarifies planning and equipment requirements. 
This final rule addresses a statutory mandate.

DATES: This final rule is effective December 27, 2000.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at the Docket Management Facility, (USCG-1998-
4469), U.S. Department of Transportation, room PL-401, 400 Seventh 
Street SW., Washington, DC 20590-0001. You may also access docket 
materials over the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For questions on this rule, contact 
Lieutenant Claudia Gelzer, Project Manager, Office of Response (G-MOR) 
Coast Guard, telephone 202-267-1983. For questions on viewing, or 
submitting material to the docket, contact Dorothy Beard, Chief, 
Dockets, Department of Transportation, telephone 202-366-9329.

SUPPLEMENTARY INFORMATION:

Background and Purpose

    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.
    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 mandated 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).
    These regulations address the mandate from Congress and the 
petition from NOPA. This final rule amends only response plan 
requirements for marine transportation-related (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 through 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 required 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 
required 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, the Coast Guard published its final rule (FR) 
on response plans for MTR facilities in the Federal Register (61 FR 
7890). In developing the final rule, the Coast Guard fully complied 
with EORRA by differentiating between oils of animal or vegetable 
origin and other oils based upon physical, chemical, biological and 
other properties. The Coast Guard carefully considered all comments to 
the IFR, including those from the animal fats and vegetable oils 
industry. At the industry's request, Coast Guard officials also met 
with industry representatives to hear their views. The Coast Guard also 
considered the views and comments of other Federal agencies with 
expertise, including the U.S. Environmental Protection Agency and the 
U.S. Fish and Wildlife Service. These regulations have been codified in 
33 CFR part 154, subparts F through I. In meetings with Coast Guard 
officials, animal fat and vegetable oil industry representatives stated 
their main request was that animal fats and vegetable oils be separated 
from petroleum oils and other oils in the regulations. The industry 
representatives stated that this was largely a public relations issue 
due to the bad publicity petroleum oil spills had received. The Coast 
Guard concluded, based upon all comments to the docket and its own 
research, that separate subparts were in keeping with both the letter 
and spirit of EORRA. Therefore, The final rule added two new subparts 
to the response plan regulations (subparts H and I). Subpart H 
contained planning requirements for animal fat and vegetable oil 
facilities, while subpart I contained planning requirements for other 
non-petroleum oil facilities. The final rule also allowed 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 required the 
Secretary of Transportation to submit to Congress an annual report 
describing how new Coast Guard regulations have met 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 have met the 
EORRA requirements.
    In a letter dated March 14, 1997, NOPA filed a petition with the 
Coast Guard requesting amendments to the MTR facility response plan 
regulations. The petition requested separate and appropriate 
regulations for facilities that handle animal fats and vegetable oils.
    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 required that not later than March 31, 1999, the Coast Guard 
issue regulations amending 33 CFR part

[[Page 40821]]

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 contained 
a similar requirement for the Environmental Protection Agency (EPA) to 
amend its regulations to comply with EORRA. On January 16, 1998, NOPA 
filed, with EPA, a petition similar to the one filed with the Coast 
Guard. In a separate notice of proposed rulemaking (NPRM), EPA proposed 
modifications to its response plan rules for animal fat and vegetable 
oil facilities.
    On April 8, 1999, we published a notice of proposed rulemaking 
entitled ``Response Plans for Marine Transportation-Related Facilities 
Handling Non-Petroleum Oils'' in the Federal Register (64 FR 17222). We 
have received ten industry letters commenting on the proposed 
rulemaking. No public hearing was requested, and none was held.
    The Coast Guard and EPA were each given the same mandate to amend 
the regulations pertaining to facilities that handle, store and 
transport animal fats and vegetable oils. The two agencies have worked 
together to develop this final rule, and ensure harmonization in the 
rules wherever possible. Each agency regulates a distinct community of 
facilities, that while sharing similarities, have different physical 
activities and different response schemes to fit their environments. 
Each of the agencies' rules addresses the most probable activities for 
the facilities under its jurisdiction. One significant difference 
between MTR facilities and non transportation-related facilities is in 
the volume of worst case discharges. EPA facilities generally have a 
significantly greater potential for large discharges than do Coast 
Guard-regulated facilities. EPA-regulated facilities tend to have a 
larger number of oil transfers, with a significant potential for small 
and medium discharges. The worst case discharge from an EPA-regulated 
facility is determined by the capacity of the largest bulk storage 
tank; Coast Guard-regulated facilities calculate worst case discharge 
by estimating the amount of oil in the pipeline from the first valve 
inside the secondary containment to the dock, and determining flow rate 
for loading and unloading a vessel. Thus, each agency's final rule is 
tailored to meet the needs of the types of facilities it regulates.
    In developing this final rule, the Coast Guard researched and 
identified a total of 61 MTR facilities that handle, store, or 
transport animal fats or vegetable oils throughout the nation. Of these 
facilities, 26 handle animal fat/vegetable oils exclusively. The Coast 
Guard determined that this regulation impacts only these 26 facilities 
as those that also handle petroleum products must also comply with 
response plan requirements in 33 CFR 154, Subpart F.
    In evaluating the worst case discharges from these 26 facilities, 
the Coast Guard identified a range from 2,136 gallons to 152,628 
gallons. Among the 26 facilities' worst case discharges, 50 percent 
were less than 10,000 gallons, and 77 percent were less than 25,000 
gallons.

Discussion of Comments

    In the preamble of the NPRM, we specifically requested public 
comment on the appropriateness of providing planning volume tables in 
the amended regulations for animal fat and vegetable oil facilities. 
The tables were developed by the EPA to calculate planning volumes. We 
requested comment on whether these tables, similar to existing tables 
in both agencies' petroleum oil regulations, would be useful to the 
animal fat/vegetable oil industry. We received no comments from 
industry to indicate support or opposition to the tables.
    To afford maximum flexibility to the regulated community, we have 
decided to allow use of planning tables as an option, but not require 
their use. The tables may allow certain facilities to provide a more 
appropriate level of response resources to mitigate an oil spill. If 
you believe that your facility will benefit from using the tables as a 
planning tool, they can be found in EPA regulations, 40 CFR part 112, 
Appendix E, Section 10.0, Tables 6 and 7.
    We received ten industry comment letters in response to our notice 
of proposed rulemaking. The following discussion summarizes the 
comments received and our response to proposed changes.
    Eight comment letters include specific statements of support for 
the changes we proposed in the NPRM. The letters also included 
additional suggestions for changes to the regulation. All comments 
received are outlined in this section.
    We received four comments recommending that we reconsider our 
proposal to require planning for an average most probable discharge 
(AMPD). We received one comment in support of this proposed 
requirement. The Coast Guard's decision to require AMPD planning came 
from the evaluation of spills from animal fat/vegetable oil facilities. 
An analysis of data from the Coast Guard's Marine Safety Information 
System (MSIS), (spill history between 1992 and 1998) revealed a pattern 
of relatively small spill volumes (82 percent of the animal fat/
vegetable oil discharges were less than 100 gallons). These volumes 
meet the average most probable discharge criteria as defined in 33 CFR 
part 154.1020. The Coast Guard finds that requiring animal fat/
vegetable oil facilities to plan for average most probable discharge 
will better prepare them to respond to more realistic scenarios in 
addition to assisting them in planning for worst case discharges, as 
required by OPA 90.
    The Coast Guard received five comments requesting that we 
reconsider the proposed requirement for animal fat/vegetable oil 
facilities to have at least 1,000 feet of boom on scene within an hour 
of spill detection. Current Coast Guard regulations require at least 
1,000 feet of boom for significant and substantial harm facilities that 
handle Group I through Group IV petroleum oils. We expect that fixed 
animal fat and vegetable oil facilities already have access to this 
quantity of boom through existing worst case discharge (WCD) volume 
planning. Furthermore, under the Environmental Protection Agency 
regulations on facility response plans in 40 CFR 112, we expect that 
facilities currently regulated by this final rule would already have at 
least 1,000 feet of containment boom that can be deployed within one 
hour. In responding to the Notice of Proposed Rulemaking, four 
commenters simply requested reconsideration of the proposal and one 
commenter stated that the additional requirement for 1,000 feet of boom 
is unnecessary. Without further explanation, we presume the commenter 
is suggesting that the requirement is unnecessary because the EPA 
regulations already include this requirement. We disagree and formally 
make this requirement a part of Coast Guard regulations to help ensure 
that all animal fat/vegetable oil facilities can quickly provide at 
least this minimum amount of response equipment in the event of a 
spill. Also, any marine transportation-related animal fat/vegetable oil 
facility that may come into existence would be required to have this 
response equipment.
    Current regulations require a minimum of 200 feet of boom for 
substantial harm facilities handling petroleum oils under Subpart F. 
This same requirement will still apply for animal fat/vegetable oil 
mobile facilities, and fixed animal fat/vegetable oil facilities that 
are part of a non-transportation-related onshore facility

[[Page 40822]]

with a storage capacity of less than 42,000 gallons.
    We received five comments indicating that the NPRM inappropriately 
applies the response requirements for Higher Volume Port areas to 
animal fat/vegetable oil facilities, and that the Tier 1 response for 
these facilities should be relaxed from 6 to 12 hours. We disagree. 
Relaxing the requirements could double the response time in the event 
of a spill, which would significantly reduce the effectiveness of the 
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. Furthermore, the commenters suggested that because 
we designated higher volume port areas based on the location of 
petroleum oil facilities, this requirement should not apply to animal 
fat and vegetable oil facilities. The designation of higher volume port 
areas is not based on the location of petroleum oil facilities. Rather, 
the areas were selected because of the availability of response 
resources. Facilities located in higher volume port areas have a higher 
density of response contractors and resources nearby. Data on animal 
fat/vegetable oil facilities provided by Coast Guard field units 
suggest that about 25 percent of animal fat/vegetable oil facilities 
are in higher volume port areas, and we believe those facilities can 
achieve more rapid response times than facilities in other areas.
    We received four comments requesting that we relax the requirements 
for equipment exercises for animal fat/vegetable oil facilities from 
semiannual to annual. We consider the current requirements appropriate. 
The current regulations require semi-annual equipment deployment 
exercises for facility owned or operated equipment and annual equipment 
deployment exercises for OSRO equipment. These standards are in 
accordance with the requirements of the National Preparedness for 
Response Exercise Program (PREP).
    We received five comments recommending that we revise the 
regulations to permit the ``no action'' response alternative under 
certain, well-defined circumstances. We do not consider it appropriate 
to specify ``no action'' as a response alternative for planning 
purposes, and we are not revising the regulations in this way. The 
Federal On-Scene Coordinator (FOSC) has the authority to decide on the 
appropriate level of response action to an oil spill, ranging from 
taking no action to taking vigorous and extensive action. Such 
decisions are made on a case-by-case basis and after evaluating a range 
of factors such as: Spill amount; proximity to threatened areas; type 
of oil; weather conditions; and tides and currents.
    We received seven comments requesting that the section of the 
regulation addressing ``other appropriate equipment'' as specified in 
33 CFR part 154.1240(4) be modified to specifically identify mechanical 
dispersal equipment. We disagree. The Coast Guard, as Federal On-Scene 
Coordinator (FOSC), has the authority to determine whether a specific 
response technique is appropriate for any given spill response in the 
coastal zone. It is not appropriate to limit that authority by 
prescribing specific response techniques within the regulations. Under 
the current regulations, such techniques may be used under certain 
conditions, as decided by the Federal On-Scene Coordinator (FOSC). 
Response to an oil spill will take into account a range of factors and 
variables as listed in the preceding paragraph.
    We received five comments requesting that facilities be permitted 
to plan for the use of public fire-fighting resources. The current 
regulations permit facilities to use public resources that are 
supported by local municipal, county, city, or state organizations, as 
well as other public resources. There must be a cooperative agreement 
between the facility and the public resource indicating that both 
parties understand all expectations. However, under a separate 
regulatory project (USCG-1998-3497), we are reviewing the possible 
conditions under which the industry as a whole needs fire-fighting 
resources, and we may propose further planning criteria based on that 
review. Therefore, we have revised the wording in subpart H for 
clarification.
    We received four comments requesting that we allow a facility to be 
the lead exercise developer and final decision authority on exercise 
design, as a condition of participating in Area Exercises. The current 
exercise guidelines allow for this opportunity. The Coast Guard 
strongly encourages each MTR facility to participate in PREP, and 
volunteer to assume the lead plan holder's role in industry-led area 
exercises. When this happens, the lead facility does have the primary 
voice and final decision authority in the exercise design. Likewise, in 
government-led PREP area exercises or non-PREP area exercises, the 
Federal On-Scene Coordinator (FOSC) is the lead plan holder and has 
final decision authority in exercise design. In all cases, exercise 
design should be conducted as a cooperative effort of the entire design 
team, including the State government, the Coast Guard, and the 
industry.
    We also received four comments recommending that we eliminate the 
requirement for annual plan reviews while retaining the requirement to 
report changes to plans as they occur. We disagree with this 
recommendation. Thorough and regular review of plans is critical to 
plan viability. Formal plan review ensures that plan holders keep 
crucial response information such as phone contacts, reporting 
requirements and equipment inventories up-to-date. We are retaining 
both requirements.
    We received five comments requesting that regulations be modified 
to require animal fat/vegetable oil facilities to include, as part of 
the spill mitigation procedures, those procedures to be taken by the 
facility personnel in the event of a discharge resulting from fire or 
explosion. We have considered this request and decided not to impose 
this additional requirement. Historical spill data does not indicate a 
high risk of fire or explosion in connection with animal fat/vegetable 
oil spills to justify such a requirement. Plus, fires at MTR facilities 
fall within the response jurisdiction of local municipal, county or 
city fire departments that are charged with protection of public health 
and safety. We encourage facilities to closely coordinate with Local 
Emergency Planning Committees to ensure a safe and effective response 
in the event of fire or explosion.
    We also received several comments requesting changes that were not 
proposed in our Notice of Proposed Rulemaking. Those suggestions are 
beyond the scope of this rulemaking and therefore not included in this 
rule.
    We received one comment requesting that we further differentiate 
the regulation of facilities that handle other classes of non-petroleum 
oils in addition to animal fats and vegetable oils, such as 
polydimethylsiloxane, (PDMS). These changes are outside the scope of 
this rulemaking, which amends only 33 CFR part 154 subpart H-Response 
Plans for Animal Fats and Vegetable Oils Facilities. Facilities that 
handle PDMS are regulated by 33 CFR part 154 subpart I, ``Response 
Plans for Other Non-Petroleum Oil Facilities.''
    We also received one comment that referred to Executive Order 
13101, ``Greening the Government through Waste Prevention, Recycling, 
and Federal Acquisition,'' signed on September 14, 1998. (63 FR 49641-
49651) Executive Order 13101 directs all government agencies to make 
efforts to purchase environmentally preferable products and services.

[[Page 40823]]

``Environmentally preferable'' refers to products or services that have 
a lesser or reduced effect on human health and the environment when 
compared with competing products or services. In addition to promoting 
environmentally preferable purchasing, the Executive Order encourages 
agencies to purchase bio-based products, such as animal fats and 
vegetable oils. The comment suggests that our regulations should 
recognize the same differences in characteristics that the government 
used to promote the use of bio-based products as environmentally 
preferred products. Executive Order 13101 applies to government 
procurement of products and services, not planning requirements for 
effective response to oil spills. We have found that animal fats and 
vegetable oils have many properties similar to petroleum oils and 
produce many of the same environmental effects when discharged into the 
environment. The properties of these bio-based products do not affect 
the probability that they might be discharged when they are handled, 
stored, or transported. If the result of the Executive Order is to 
increase use of these products, it will be even more important that 
facilities are prepared to respond to a spill.

Discussion of Rule

    We are making the following three changes to our existing 
regulations.
    (a) Downgrading the initial classification of affected facilities 
from significant and substantial harm to substantial harm. This 
regulation downgrades the initial classification of all animal fat/
vegetable oil facilities to substantial harm. The Captain of the Port 
(COTP) has the authority to upgrade a facility to significant and 
substantial harm based upon factors such as: type and quantity of oil; 
spill history of the facility; the age of the facility; the proximity 
to water supply intakes; and proximity to navigable waters; as outlined 
in 33 CFR part 154.1216(b). The Coast Guard's Marine Safety Information 
System (MSIS) database collects information on various marine 
activities. We used MSIS to review facility spill history of marine 
transportation-related facilities between 1992 and 1998, and we found 
that 31 animal fat or vegetable oil spills were reported during that 
time, ranging from 1 to 7,500 gallons. Of those 31 spills, 28 (90 
percent) were less than 1,000 gallons; of those 28 spills, 23 were less 
than 100 gallons. While animal fats and vegetable oils may be just as 
damaging, or more so, as other oils when discharged into the 
environment, we reclassified animal fat and vegetable oil facilities 
from significant and substantial harm to substantial harm, taking into 
account this history of small volume spills.
    (b) Requiring planning for an average most probable discharge 
(AMPD). The spill history we have 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 part 154.1020. Accordingly, we will now require AMPD planning 
in addition to worst case planning. By requiring AMPD planning, we will 
further harmonize our regulations with EPA's. We do not anticipate that 
requiring AMPD planning will increase planning burdens for animal fat 
and vegetable oil facilities. Under 33 CFR part 154.545, we already 
require all oil facilities to plan for responses to operational 
discharges. Animal fat or vegetable oil facilities may use the planning 
done to meet the requirements under 33 CFR part 154.545 to help satisfy 
the AMPD planning requirements. The new 33 CFR part 154.545(e) 
explicitly allows this option.
    (c) Requiring at least 1,000 feet of boom for fixed facilities. 
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 part 
154.1017.) We expect that fixed animal fat and vegetable oil facilities 
already have access to this quantity of boom through existing worst 
case discharge (WCD) volume planning, and in planning for responses to 
operational discharges under 33 CFR part 154.545. Furthermore, EPA 
regulations in 40 CFR part 112 require the facilities currently 
regulated by this final rule to have at least 1,000 feet of containment 
boom that can be deployed within one hour. Therefore, this requirement 
is not expected to add an additional burden on the industry. This 
requirement is made to ensure that any marine transportation-related 
animal fat/vegetable oil facility that may come into existence, and 
that may not otherwise be required to have this response equipment, be 
required to do so. The requirement for 200 feet of boom will still 
apply for animal fat/vegetable oil mobile facilities and fixed animal 
fat/vegetable oil facilities that are part of a non-transportation-
related onshore facility with a storage capacity of less than 42,000 
gallons.
    (d) We have made several non-substantive changes from the NPRM to 
further clarify the regulations.
    (1) We moved the paragraphs that were 33 CFR part 154.1240(d) and 
(e) in the NPRM to 33 CFR part 154.1225(f) and (g) in the final rule. 
This clarifies that our intent is to require at least 1,000 feet of 
boom for all fixed animal fats and vegetable oil facilities (except 
those with a storage capacity of less than 42,000 gallons), whether 
classified as substantial harm or as significant and substantial harm 
facilities.
    (2) In 33 CFR part 154.1220(a), we removed section 154.1035 from 
the list of sections that do not apply to substantial harm MTR 
facilities. 33 CFR part 154.1035 applies to petroleum oil facilities 
classified as significant and substantial harm. Animal fat and 
vegetable oil facilities that are classified as substantial harm 
facilities must comply with 33 CFR part 154.1035 as modified by 33 CFR 
part 154.1240. Animal fat and vegetable oil facilities that are 
upgraded to significant and substantial harm must comply with all of 33 
CFR part 154.1035.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that order. The 
Office of Management and Budget (OMB) has not reviewed it under that 
Order. It is ``significant'' under the regulatory policies and 
procedures of the Department of Transportation (DOT) (44 FR 11040, 
February 26, 1979). A final Regulatory Evaluation under paragraph 10e 
of the regulatory policies and procedures of DOT is available in the 
docket as indicated under ADDRESSES. A summary of the Regulatory 
Evaluation follows:

Summary of Costs

    This regulation includes three measures that impact industry. The 
first measure, downgrading animal fat or vegetable oil facilities from 
significant and substantial harm to substantial harm will not result in 
any additional costs to the industry. The second measure, requiring 
average most probable discharge planning, might result in minor 
additional costs to the industry by increasing the amount of 
information a facility has to report. We estimate that owners or 
operators of facilities will spend 4 hours amending their response 
plans. The additional cost per response plan would be $140 ($35 per 
hour x 4 burden hours). We have conducted research and found that the 
Coast Guard regulates 26 fixed and mobile marine transportation-related 
facilities that handle, store, or transport animal fats and vegetable 
oils

[[Page 40824]]

exclusively. The total estimated annual cost for all 26 facilities 
would be $3,640 (26 facilities x $140 per response plan). Finally, we 
do not expect that requiring a minimum amount of boom for fixed 
facilities will add any cost to the proposed rule. When planning for a 
WCD under current regulations, it is expected that 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, we estimate that 100 percent of the regulated, 
fixed facilities already meet this requirement.
    The amended regulation is expected to decrease costs to the 
government. Those facilities downgraded from significant and 
substantial harm to substantial harm will no longer need Coast Guard 
approval of their response plans. Therefore, the workload of Coast 
Guard field units will decrease.

Summary of Benefits

    The rule will reduce regulatory burden, further harmonize federal 
agency regulations, formalize discharge planning for smaller spills, 
and ensure that an adequate quantity of boom is maintained at the 
facilities. Downgrading the classification of animal fat/vegetable oil 
facilities to substantial harm eliminates the need for these facilities 
to obtain Coast Guard approval, which saves time for both the industry 
and the Coast Guard. Facilities will still be required to submit plans, 
but will not need Coast Guard approval. Requiring facilities to plan 
for the average most probable discharge further aligns these 
regulations with those of EPA and better prepares facilities to respond 
to smaller, more common spills. Requiring a minimum amount of boom--
1,000 feet or twice the length of the longest vessel--ensures that 
facilities are in a better position to immediately prevent the spread 
of oil in the event of a spill.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises 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 final rule on small entities is available in the docket for 
inspection or copying where indicated under ADDRESSES.
    Although this rule will reduce the regulatory burden on the 
affected facilities, it will also slightly increase their record-
keeping requirement. The additional level of response planning will 
result in only minor additional informational reporting burdens. Each 
of the 26 affected facilities will incur 4 additional hours of 
information reporting burden. This will result in an additional cost of 
$140 per facility (4 hours x $35 per hour). We decided to require 
facilities to plan for AMPD spills because the spill history of these 
facilities shows a pattern of relatively small spill volumes. Our 
research indicated that most of the 26 facilities affected by this rule 
are not small entities. We did not receive any comments from small 
entities during this rulemaking indicating that the additional record-
keeping cost would present a significant economic impact on them. The 
Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not 
have a significant economic impact on a substantial number of small 
entities.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking. 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 202-267-6819.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

Collection of Information

    This rule calls for an additional collection of information, under 
an already approved collection, 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: Vessel Response Plans, Facility Response Plans, Shipboard 
Oil Pollution Emergency Plans, and Additional Response Equipment 
Requirements for Prince William Sound.
    Summary of Collection: This additional collection of information 
will be included under the current, approved Office of Management and 
Budget (OMB) collection numbered 2115-0595 entitled Vessel Response 
Plans, Facility Response Plans, Shipboard Oil Pollution Emergency 
Plans, and Additional Response Equipment Requirements for Prince 
William Sound. This rulemaking will add 104 hours to the already 
approved collection of information. The new total number of annual 
hours requested will be 188,733, which includes the facility response 
plans, vessel response plans, shipboard oil pollution emergency plans 
and additional equipment requirements for Prince William Sound. The new 
collection of information requirements for this rule are described in 
sections: Sec. 154.1220 and Sec. 154.1225.
    Need for Information: This rule will 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: We will use this information to ensure 
that such facilities are prepared to respond in the event of a spill 
incident. The information will 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: 26 facilities.
    Frequency of Response: Annual.
    Burden of response: 4 hours per respondent.
    Estimated Total Annual burden: 104 hours.
    As required by 44 U.S.C. 3507(d), we submitted a copy of this rule 
to the Office of Management and Budget (OMB) for its review of the 
collection of information. OMB approval of the collection is pending. 
You are not required to respond to a collection of information unless 
it displays a

[[Page 40825]]

currently valid OMB control number. We will announce when OMB grants 
approval for this collection of information, by separate notice in the 
Federal Register.
    We solicited public comment on the 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 submission of responses by electronic means or the 
use of other forms of information technology. There were no comments 
submitted.

Federalism

    We have analyzed this rule under E.O. 13132 and have determined 
that it does not have implications for federalism under that Order.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their regulatory 
actions not specifically required by law. In particular, the act 
addresses actions that may result in the expenditure by a State, local, 
or tribal government, in the aggregate, or by the private sector of 
$100,000,000 or more in any one year. This rule will not result in such 
an expenditure.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under E.O. 13045, Protection of Children 
from Environmental Health Risks and Safety Risks. This rule is not an 
economically significant rule and does not concern an environmental 
risk to health or risk to safety that may disproportionately affect 
children.

Environment

    We considered the environmental impact of this final rule and 
concluded that under figure 2-1, paragraph (34)(a) and (e), of 
Commandant Instruction M16475.lC, this 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. A 
``Categorical Exclusion Determination'' is available in the docket for 
inspection or copying where indicated under ADDRESSES.

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 amends 
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 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 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 or 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 
may 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 part 2.05-25.
    (6) The fish, wildlife, and sensitive environments near the 
facility.
    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 complies with 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.
    (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 complies with this subpart and all sections of 
subpart F of this part, as appropriate, except Secs. 154.1015,

[[Page 40826]]

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 text, (a)(1), (b), (c), (d), and (e); redesignate 
paragraph (f) as paragraph (h) and revise it; and add paragraphs (f) 
and (g) to read as follows:


Sec. 154.1225  Specific response plan development and evaluation 
criteria and other requirements for fixed facilities that handle, 
store, or transport animal fats or 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 ensure 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 that are specified in 
Sec. 154.1240, that are available by contract or by a method described 
in Sec. 154.1228(a). The owner or operator is not required, but may at 
their option, refer to the tables in Environmental Protection Agency 
regulations, 40 CFR 112, Appendix E, Section 10.0, Tables 6 and 7, to 
determine necessary response resources.
    (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), or through a cooperative agreement with public fire-
fighting resources, 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.
    (f) For a fixed facility, except for facilities that are part of a 
non-transportation-related fixed onshore facility with a storage 
capacity of less than 42,000 gallons, the owner or operator must also 
ensure and identify, through contract or a method described in 
Sec. 154.1228, response resources for an average most probable 
discharge, including--
    (1) 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 the discovery 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 the discovery of an 
incident; and
    (4) Other appropriate equipment necessary to respond to an incident 
involving the type of oil handled.
    (g) For a mobile facility or a fixed facility that is part of a 
non-transportation-related onshore facility with a storage capacity of 
less than 42,000 gallons, the owner or operator must meet the 
requirements of Sec. 154.1041, and ensure and identify, through 
contract or a method described in Sec. 154.1228, response resources for 
an average most probable discharge, including--
    (1) At least 200 feet of containment boom and the means of 
deploying and anchoring the boom within 1 hour of the discovery 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 the 
discovery of an incident;
    (2) Adequate sorbent material capable of being at the site of an 
incident within 1 hour of its discovery;
    (3) Oil recovery devices and recovered oil storage capacity capable 
of being at incident's site within 2 hours of the discovery of an 
incident; and
    (4) Other equipment necessary to respond to an incident involving 
the type of oil handled.
    (h) The response plan for a facility that is located in any 
environment with year-round preapproval for use of dispersants and that 
handles, stores, or transports animal fats and vegetables oils may 
request a credit for up to 25 percent of the worst case planning volume 
set forth by subpart F of this part. To receive this credit, the 
facility owner or operator must identify in the plan and ensure, by 
contract or other approved means as described in Sec. 154.1228(a), the 
availability of specified resources to apply the dispersants and to 
monitor their effectiveness. The extent of the credit for dispersants 
will be based on the volumes of the dispersants available to sustain 
operations at the manufacturers' recommended dosage rates. Other spill 
mitigation techniques, including

[[Page 40827]]

mechanical dispersal, may be identified in the response plan provided 
they are in accordance with the NCP and the applicable ACP. Resources 
identified for plan credit should be capable of being on scene within 
12 hours of a discovery of a discharge. Identification of these 
resources does not imply that they will be authorized for use. Actual 
authorization for use during a spill response will be governed by the 
provisions of the NCP and the applicable ACP.

    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 be expected 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 for a worst case 
discharge.

    Dated: June 21, 2000.
James M. Loy,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 00-16079 Filed 6-29-00; 8:45 am]
BILLING CODE 4910-15-P