40820 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

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.

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

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 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 Guardregulated 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 nontransportation-related onshore facility

40822 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

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 semiannual 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, welldefined 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 HResponse 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.

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

40824 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

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:

§ 154.1220 and § 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

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

§ 154.545 [Amended]

2. In § 154.545(e), add the words ‘‘and

subpart H’’ after the words ‘‘of subpart

F’’.

§ 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

§ 154.1015(c)’’ and add, in their place,

the words ‘‘and § 154.1216.’’

4. In the definition for Facility that

could reasonably be expected to cause

substantial harm, remove all words after

‘‘under § 154.1015(b)’’ and add, in their

place, the words ‘‘and § 154.1216.’’

5. Revise § 154.1210 to read as

follows:

§ 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 § 154.1216 to read as follows:

§ 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 § 154.1220 to read as

follows:

§ 154.1220 Response plan submission

requirements.

(a) The owner or operator of an MTR

facility identified in § 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

§§ 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

§ 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 §§ 154.1015,

40826 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations

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

§ 154.1041 subpart F.

8. In § 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:

§ 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

§ 154.1240, that are available by contract

or by a method described in

§ 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 § 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, inland, nearshore, and offshore areas ................................................................ 12 N/A N/A.

(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 § 154.1228(a), or through a

cooperative agreement with public firefighting 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 § 154.1020 or an appropriate

individual located at the facility.

(f) For a fixed facility, except for

facilities that are part of a nontransportation-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 § 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 sitespecific 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 nontransportation-related onshore facility

with a storage capacity of less than

42,000 gallons, the owner or operator

must meet the requirements of

§ 154.1041, and ensure and identify,

through contract or a method described

in § 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 sitespecific 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

§ 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

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Rules and Regulations 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 § 154.1240 to subpart H to read

as follows:

§ 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 § 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

§ 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 § 154.1035(b)(3)(iii).

(c) The owner or operator must ensure

and identify, by contract or a method

described in § 154.1228, that the

response resources required under

§ 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