30532 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 96–15267 Filed 6–14–96; 8:45 am]

BILLING CODE 6712–01–P

47 CFR Part 15

[ET Docket No. 95–144; FCC 96–219]

UHF Noise Figure Performance

Measurements

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: By this action, the

Commission modified its rules to

eliminate the requirement that parties

who manufacture, import or market

television receivers file reports

concerning the UHF noise figure

performance of recently-introduced

models. We found that the requirement

for the filing of UHF television noise

figure performance measurements had

become obsolete and burdensome. By

eliminating this requirement we

anticipate that the administrative

burden on industry as well as on the

Commission will be greatly reduced

without any deterioration of the

television receiver compliance rate.

EFFECTIVE DATE: August 16, 1996.

FOR FURTHER INFORMATION CONTACT:

Raymond A. LaForge at (202) 418–2417,

Office of Engineering and Technology.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order, adopted May 14, 1996, and

released June 3, 1996. The full text of

this Commission decision is available

for inspection and copying during

regular business hours in the FCC

Reference Center (Room 239), 1919 M

Street, NW, Washington, DC. The

complete text of this decision also may

be purchased from the Commission’s

duplication contractor, International

Transcription Service, Inc., (202) 857–

3800, 2100 M Street, N.W., Suite 140,

Washington, D.C. 20037.

Summary of Report and Order

1. The Electronics Industry

Association Consumer Electronics

Group, now known as the Consumer

Electronics Manufacturers Association

(‘‘CEMA’’), petitioned the Commission

to eliminate the requirement that parties

who manufacture, import or market

television receivers file reports

concerning the UHF noise figure

performance of television receivers. On

September 5, 1995, the Commission

issued a Notice of Proposed Rule

Making (‘‘NPRM’’), 60 FR 49421,

September 22, 1995, proposing to

eliminate the requirement that parties

who manufacture, import, or market

television receivers file UHF television

noise figure measurement reports.

2. CEMA, the only entity to file

comments and reply comments

supported the Commission’s proposal to

eliminate the UHF noise figure reporting

requirements stating that this initiative

furthers the Administration’s regulatory

reinvention goals by minimizing the

reporting burdens on business. It stated

that both industry and Commission

resources could be redeployed for other

business if the UHF noise figure

reporting requirement is eliminated.

3. CEMA also noted that the UHF

noise figure reporting requirement is

inconsistent with the Commission’s

verification process. It states that under

this process manufacturers and

importers of television receivers must

maintain records of the results of their

tests, although they are not required to

submit sample products or test reports

to the Commission unless specifically

requested by the Commission. However,

the UHF noise figure reporting

requirement obligates manufacturers

and importers to compile test

measurement data on UHF noise figures

for each model during the first year of

its introduction and to file these

performance measurements with the

Commission. CEMA maintained that the

requirement for filing this data is

inconsistent with the concept of selfapproval, which is the heart of the

verification process. CEMA argued that

the verification process and market

forces are therefore sufficient to ensure

compliance with the UHF noise figure

requirement. Based on the record, we

agree with CEMA that the filing of

performance measurement data is no

longer necessary to ensure compliance

with our UHF noise figure requirement.

Thus, we are amending our rules to

eliminate Section 15.117(g)(3).

4. Accordingly, it is ordered, that Part

15 of the Commission’s Rules and

Regulations ARE AMENDED as

specified below, effective August 16,

1996. The authority for issuance of this

Report and Order is contained in

Sections 4(i), 302, 303 (c), (f), (g), and

(r), and 309(a) of the Communications

Act of 1934, as amended, 47 U.S.C.

Sections 154(i), 302, 303 (c), (f), (g), and

(r).

Final Regulatory Flexibility Analysis

Pursuant to 5 U.S.C. § 603, an Initial

Regulatory Flexibility Analysis was

incorporated in the NPRM in ET Docket

No. 95–144, FCC 95–389, 60 FR 49421,

September 22, 1995. Written comments

on the proposal in the NPRM, including

the Regulatory Flexibility Analysis,

were requested. Only one comment and

one reply comment were submitted by

the petitioner, CEMA.

1. Need for and Objective of Rules.

Our objectives are to decrease the

administrative burden on manufacturers

and importers by eliminating the

requirement for submission of

performance data to demonstrate

compliance with the Commission’s UHF

noise figure requirement. We believe

this requirement is no longer necessary

to ensure compliance. Therefore, by

eliminating the requirement for

manufacturers and importers to develop

and file this data with the Commission,

we expect to greatly reduce the

administrative burden on industry as

well as on the Commission.

2. Issues Raised by the Public in

Response to the Initial Analysis. The

petitioner was the only party to offer

comments to the proposal raised in the

NPRM, but the Initial Regulatory

Flexibility Analysis was not raised as an

issue.

3. Any Significant Alternative

Minimizing Impact on Small Entities

and Consistent with Stated Objectives.

The alternative to amending Part 15 of

the Commission’s Rules is to continue

the requirement that performance data

be filed with the Commission to

demonstrate compliance with the UHF

noise figure requirement. However, this

would result in a missed opportunity to

remove an unnecessary administrative

burden on industry.

List of Subjects in 47 CFR Part 15

Radio, Reporting and recordkeping

requirements.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Title 47 of the Code of Federal

Regulations, Part 15, is amended as

follows:

PART 15—RADIO FREQUENCY

DEVICES

1. The authority citation for Part 15

continues to read as follows:

Authority: Secs. 4, 302, 303, 304, 307 and

624A of the Communications Act of 1934, as

amended, 47 U.S.C. 154, 302, 303, 304, 307

and 544A.

2. Section 15.117 is amended by

removing and reserving paragraph (g)(3).

[FR Doc. 96–15210 Filed 6–14–96; 8:45 am]

BILLING CODE 6712–01–P
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations 30533

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Part 130

[Docket Nos. HM–214 and PC–1; Amdt. No.

130–2]

RIN 2137–AC31

Oil Spill Prevention and Response

Plans

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Final rule.

SUMMARY: This final rule implements

the Federal Water Pollution Control Act,

as amended by the Oil Pollution Act of

1990, and amends requirements that

RSPA issued as an interim final rule on

June 16, 1993. This rule adopts

requirements for packaging,

communication, spill response planning

and response plan implementation

intended to prevent and contain spills

of oil during transportation. It requires

comprehensive response plans for oil

shipments in bulk packagings (i.e., cargo

tanks (tank trucks), railroad tank cars,

and portable tanks) in a quantity greater

than 42,000 gallons and less detailed

basic response plans for petroleum oil

shipments in bulk packagings of 3,500

gallons or more.

DATES: Effective: June 17, 1996.

Applicability: Incorporation by

reference of the publication listed in

§ 130.5 was authorized by the Director

of the Federal Register on June 17, 1996.

FOR FURTHER INFORMATION CONTACT:

Thomas Allan, Office of Hazardous

Materials Standards, RSPA, Department

of Transportation, 400 Seventh Street

SW, Washington, DC 20590–0001,

Telephone (202) 366–8553 or Nancy

Machado, Office of the Chief Counsel,

RSPA, Department of Transportation,

400 Seventh Street SW, Washington, DC

20590–0001, Telephone (202) 366–4400.

I. SUPPLEMENTARY INFORMATION:

A. Background

Statutory Authority and Delegations.

This final rule implements two separate

mandates under the Federal Water

Pollution Control Act (FWPCA). Section

311(j)(1)(C) of the FWPCA, 33 U.S.C.

1321(j)(1)(C), directs the President to

issue regulations ‘‘establishing

procedures, methods, and equipment

and other requirements for equipment to

prevent discharges of oil and hazardous

substances from vessels and from

onshore facilities and offshore facilities,

and to contain such discharges.’’

Section 311(j)(5), 33 U.S.C. 1321(j)(5),

added to the FWPCA by the Oil

Pollution Act of 1990 (OPA), Pub. L.

101–380, § 4202, directs the President to

issue regulations requiring owners and

operators of certain vessels and onshore

and offshore oil facilities to develop,

submit, update and in some cases obtain

approval of oil spill response plans.

On October 22, 1991, the President

delegated to the Secretary of

Transportation his authority to regulate

transportation-related onshore facilities

(among others) under §§ 1321(j)(1)(C)

and 1321(j)(5). E.O. 12777, 56 FR 54757,

§§ 2(b)(2), 2(d)(2). The terms

‘‘transportation-related facility’’ and

‘‘non-transportation-related facility’’ are

defined in a December 18, 1971

Memorandum of Understanding (MOU)

between the Department and the U.S.

Environmental Protection Agency (EPA)

establishing jurisdictional guidelines for

implementing § 1321(j)(1)(C). 36 FR

24080; reprinted at 40 CFR part 112

App. ‘‘Transportation-related facilities’’

include:

Highway vehicles and railroad cars which

are used for the transport of oil in interstate

or intrastate commerce and the equipment

and appurtenances related thereto . . . .

Excluded are highway vehicles and railroad

cars and motive power used exclusively

within the confines of a nontransportation

related facility or terminal facility and which

are not intended for use in interstate or

intrastate commerce.

36 FR at 24081.

In 1992, the Secretary delegated to the

RSPA Administrator his prevention

authority under § 1321(j)(1)(C), 57 FR

8581 (Mar. 11, 1992), and his response

plan authority under § 1321(j)(5), 57 FR

62483 (Dec. 31, 1992), with respect to

motor carriers and railways.

Subsequently, the authority to issue

response plan requirements for motor

carriers and railways transporting oil

incident to transfer to or from vessels

was redelegated by the Secretary to the

Coast Guard Commandant. 58 FR 6193

(Jan. 27, 1993).

Accordingly, the jurisdiction of Part

130 extends to all oil transport by motor

carriers and railways, with two

exceptions. First, the rule does not

apply to transportation exclusively

within the confines of a nontransportation-related facility in a motor

vehicle or railroad car dedicated to

transportation within that facility. These

motor vehicles and rail cars are

considered non-transportation-related

facilities under the 1971 DOT-EPA

MOU, and are not within DOT

jurisdiction. Response plan

requirements applicable to these

facilities have been promulgated by EPA

under 40 CFR part 112. See 59 FR 34070

(July 1, 1994), (pet. for reconsideration

filed August 12, 1994). Second, solely as

to the § 1321(j)(5) ‘‘comprehensive’’

response plan requirements, set forth at

§ 130.31(b), the rule does not apply to

motor vehicles and rail cars engaged in

transportation incident to the transfer of

oil to or from vessels. The term

‘‘transportation incident to’’ is to be

read narrowly as encompassing only

transportation that (1) is distinct from

transportation on public ways and (2)

solely facilitates transfer of the oil cargo

to or from a vessel. Response plan

requirements under 33 U.S.C. 1321(j)(5)

for these transportation operations are

within the authority of the Coast Guard

and were promulgated by the Coast

Guard under 33 CFR part 154. See 61 FR

7890 (Feb. 29, 1996).

RSPA’s delegated authority under

§§ 1321(j)(1)(C) and 1321(j)(5) for certain

on-shore facilities (i.e., motor vehicles

and rolling stock) is solely the authority

to promulgate regulations. Spill

response plans, when required to be

submitted, are submitted to the Federal

Highway Administration or the Federal

Railroad Administration for motor

carriers and railways, respectively. 57

FR 62483. Because RSPA’s delegated

authority does not provide for the

review of response plans for portable

tanks, the requirement in § 130.31(b)(6)

to submit such plans to the Associate

Administrator for Hazardous Materials

Safety is removed.

The Coast Guard holds a delegation of

authority to inspect motor carrier and

rail operations, investigate potential

violations of Part 130 (including

determinations of whether a carrier’s

basic response plan conforms to

requirements in § 130.31(a)), and

enforce the regulations through

administrative and civil penalties. See

33 U.S.C. 1321(b)(6), 1321(b)(7),

1321(m)(2); and 49 CFR 1.46(l); 57 FR

8581. Also, authority to seek an

injunction to compel compliance with

any provision of Part 130 has been

delegated to the Coast Guard. E.O.

12777, 56 FR 54766, § 6(b); and 49 CFR

1.46(m), 57 FR 8581.

Section 1321(j)(5), as amended by

OPA, also mandates the issuance of

regulations requiring response plans for

on-shore facility discharge of hazardous

substances. RSPA will address this

mandate in a future rulemaking.

Procedural History. On February 2,

1993, RSPA published an interim final

rule (IFR–1) with a request for

comments. IFR–1 implemented the

mandates of 33 U.S.C. 1321(j)(1)(C) and

1321(j)(5) with respect to motor vehicles

and railways by designating oil

transported in bulk (i.e., in a packaging

of greater than 119 gallons) as a

‘‘hazardous material’’ under section 104
30534 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations

of the Hazardous Materials

Transportation Act, 49 App. U.S.C. 1803

(now codified at 49 U.S.C. 5103). This

designation caused this category of oil

transport to be subject to the Hazardous

Materials Regulations (HMR), 49 CFR

parts 171–180, and met the

§ 1321(j)(1)(C) mandate by subjecting

bulk oil transport to the packaging,

transportation and emergency response

requirements of the HMR. Additional

response plan requirements applicable

to oil transported in bulk packagings in

a quantity greater than 42,000 gallons

were incorporated into the HMR to meet

the specific mandate of 33 U.S.C.

1321(j)(5).

Most oils, notably flammable and

combustible petroleum oils, already are

classed as hazardous materials. The

greatest impact of IFR–1 was on those

materials defined as oils under 33

U.S.C. 1321 but not already designated

as hazardous materials, notably

petroleum oils not meeting HMR criteria

of flammability or combustibility (e.g.,

lube and cooling oils) and nonpetroleum oils, including edible oils.

Regulation of these previously

undesignated oils was mandated not for

their acutely hazardous properties, but

for the environmental harm that their

release into the environment could

cause. Regulating transportation of

environmentally sensitive materials by

incorporating them into the HMR

framework has its precedents in (1) the

statutory designation of ‘‘hazardous

substances’’ as hazardous materials at

42 U.S.C. 9656(a); and (2) the

designation of ‘‘marine pollutants’’ as

hazardous materials to implement treaty

obligations under Annex III of the 1973

International Convention for the

Prevention of Pollution from Ships, as

modified by the Protocol of 1978, 57 FR

52930 (Nov. 5, 1992). These regulatory

actions address the environmental

hazards of certain materials when

transported in bulk by all modes of

transportation.

Pursuant to 5 U.S.C. 553(b)(3)(B),

RSPA issued an interim final rule (IFR–

1) rather than a notice of proposed

rulemaking on the basis of a finding that

notice and public comment were

impracticable and contrary to the public

interest. Under § 4202(b)(4)(B) of the

OPA, no facility required to prepare a

response plan under the statute was

permitted to handle, store or transport

oil on or after February 18, 1993, unless

the facility owner or operator had

submitted its plan to the President.

RSPA determined that an interim final

rule was necessary in advance of the

statutory deadline to establish response

planning thresholds by regulation and

provide guidance to facility owners and

operators as to the applicability of the

response plan requirements, so that they

might avoid the prohibition of

§ 4202(b)(4)(B).

In the rule, RSPA requested

comments and provided for a comment

period that closed on April 5, 1993. On

the basis of requests submitted to the

docket, RSPA, on April 20, 1993,

published an interim final rule

reopening the comment period until

June 3, 1993, and scheduling a public

hearing for May 13, 1993. 58 FR 21260.

Twenty-two representatives of

interested parties presented their views

at the public hearing. As of June 3, 1993,

approximately 250 comments had been

received from interested members of the

public, governmental agencies and

members of Congress.

After review of public comments,

RSPA determined that significant

changes in IFR–1 were warranted.

Foremost, the comments revealed that a

number of State and local jurisdictions

use the Federal hazardous materials

transportation law (Federal hazmat law)

‘‘hazardous material’’ designation as a

‘‘trigger’’ for a variety of legal

requirements, many of which pertain to

health and safety hazards, and do not

logically apply to the types of hazards

(specifically environmental hazards)

posed by oils not already regulated

under the HMR. In addition, the

comments indicated that the hazardous

material designation is a criterion in the

transportation industry that determines

arrangements concerning insurance,

transportation rates, rail interlining and

other matters. The comments suggested

that designating bulk quantities of oil

not already designated as a hazardous

material potentially would cause the

bulk transport of those oils to be subject

to insurance unavailability and

increased costs and dislocations not

justified by the types of risks posed.

Public comment also supported changes

to the substance of the prevention

regulations, including those concerning

basic response plans.

Accordingly, on June 16, 1993, RSPA

published a second interim final rule

(IFR–2), removing the regulations from

the HMR and placing them in Title 49

of the CFR under a newly established

part 130. 58 FR 33302. In publishing

IFR–2, RSPA sought to continue the

timely and uninterrupted

implementation of the FWPCA and

avoid creating an undue hardship on the

regulated community, with the potential

to disrupt the sale and delivery of oil.

For high flashpoint petroleum oils,

and those non-petroleum oils that were

not previously subject to the HMR, IFR–

2 also reduced the scope and

complexity of the prevention

requirements from that stipulated in

IFR–1 by eliminating shipping paper,

marking, labeling, operational,

hazardous materials training and

registration requirements. In addition, it

raised the threshold for the application

of prevention requirements from that

established in IFR–1. Whereas under

IFR–1 prevention requirements applied

to all bulk oil transport, under IFR–2,

those requirements only applied to

transport of petroleum oil in packagings

of 3,500 gallons or greater, and transport

of non-petroleum oil in packagings

containing a quantity greater than

42,000 gallons.

Spill response plan requirements

pursuant to 33 U.S.C. 1321(j)(5) did not

change. They continued to apply to

transportation of both petroleum and

non-petroleum oil in packagings

containing a quantity greater than

42,000 gallons.

IFR–2 provided for a third comment

period, which ended on July 30, 1993.

A public meeting, allowing for dialogue

between RSPA and interested members

of the public, was held on June 28,

1993. All comments submitted to the

docket through IFR–1 and IFR–2

comment periods, the public hearing

and the public meeting have been

considered in developing this final rule.

Effective Dates. As indicated above,

OPA mandates that no facility required

to prepare a comprehensive response

plan may handle, store or transport oil

on or after February 18, 1993, unless the

facility owner or operator has submitted

its plan to the President. Regulatory

requirements in IFR–1 implementing

this mandate were contained in

§ 171.5(c), but now appear in

§ 130.31(b). The current requirements

pertaining to the comprehensive

response plan are essentially unchanged

from those published in IFR–1. No

facility has requested regulatory relief

from the deadline to prepare and file a

comprehensive spill response plan, and

the February 18, 1993 mandatory

compliance date appears to have had no

effect on routine operations of shippers

or carriers. The requirements specified

in § 130.31(b) remain effective since

February 18, 1993.

RSPA has not granted requests from

several commenters for an extension of

the mandatory compliance date for oil

spill prevention and containment

requirements. Those requests ranged

from a 60-day extension to give fleet

operators ample time to prepare

response plans to a one-year extension

to give sufficient time for businesses to

identify materials subject to Part 130

and comply with the requirements. The

essential elements of this final rule are

unchanged from the requirements
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations 30535

specified in IFR–2. In addition, the

scope of requirements in IFR–2 is

significantly less than that prescribed in

IFR–1.

In consideration of the above, RSPA is

denying all requests for an extension of

the effective date.

B. Definitions and Scope of

Requirements

The following discussion is provided

in response to commenters’ requests for

clarification of the scope of Part 130:

‘‘Onshore Facility’’. In accordance

with the definition of ‘‘onshore facility’’

at 33 U.S.C. § 1321(a)(10), § 130.2

(Scope) is revised to clearly except

transportation of oil by aircraft or vessel.

For consistency with the 1971 EPA–

DOT MOU, § 130.2 is revised also to

except oil transportation occurring

exclusively within the confines of nontransportation-related or terminal

facilities in vehicles not intended for

use in interstate or intrastate commerce.

‘‘Persons’’. In this final rule, the

definition of ‘‘person’’ at § 130.5 is

revised for consistency with the

FWPCA, 33 U.S.C. 1321(a)(7), 1323 and

1362(5). One commenter asked whether

the rule applies to States. This change

affirms that these rules apply to

agencies of the Federal Government, as

well as to those of States and their

political subdivisions, and to noncommercial enterprises that offer oil for

transportation or transport oil.

‘‘Oil’’ Includes Non-Petroleum Oil.

Several commenters that ship or

transport non-petroleum oil asserted

that Congress, in enacting the OPA, did

not intend that non-petroleum oil be

included within the definition of ‘‘oil’’

subject to response planning

requirements under the OPA.

The response planning requirements

of the OPA were enacted as

amendments to the FWPCA at 33 U.S.C.

1321(j). The meaning of the term ‘‘oil’’

as it appears in those requirements,

accordingly, is governed by the FWPCA

definition of oil applicable to § 1321(j):

[O]il means oil of any kind or in any form,

including, but not limited to, petroleum, fuel

oil, sludge, oil refuse, and oil mixed with

wastes other than dredged spoil.

33 U.S.C. 1321(a)(1). This definition was

added to the FWPCA in 1972, Pub.L.

92–500, § 2, 86 Stat. 862, and has not

been amended. In applying the

definition for purposes of oil spill

prevention, containment and removal

programs under § 1321(j)(1), see 40 CFR

112, 33 CFR parts 153–156, EPA and the

Coast Guard consistently have

interpreted the term to encompass both

petroleum and non-petroleum oil. See

40 FR 28849 (July 9, 1975) (EPA notice

that it interprets ‘‘oil’’ under § 1321 to

include non-petroleum oil, stating that

the interpretation ‘‘is neither a

departure from prior agency views, nor

a previously undisclosed position’’).

Non-petroleum oils fall within the plain

meaning of the statutory language, and

regulation of non-petroleum oils under

33 U.S.C. 1321 is in accord with the

statutory purpose of affording broad

protection to the navigable waters,

shorelines and natural resources under

Federal control.

‘‘Oil’’ Does Not Include Hazardous

Substances. The definition of ‘‘oil’’ in

§ 130.5 is amended so as to be identical

to the definition at § 1321(a)(1) of the

FWPCA. A note is added to make clear,

consistent with the FWPCA, that the

requirements in Part 130 do not apply

to materials that are hazardous

substances as defined at 40 CFR part

116. The list of hazardous substances

appears at 40 CFR part 116, Appendix.

‘‘Petroleum Oil.’’ Commenters

suggested that the phrase ‘‘derivatives

thereof’’ in the definition of ‘‘petroleum

oil’’ is ambiguous and could be too

broadly interpreted to include materials

(such as ethylene glycol) that do not

possess the properties of oil. RSPA

agrees and has changed the definition of

‘‘petroleum oil’’ accordingly. The term

‘‘fractions’’ means oils produced by

distillation or their refined products.

Requirements Limited to

Transportation of ‘‘Oil’’ as Cargoes.

Comments submitted by the U.S.

Department of the Interior (DOI)

contained a recommendation that the

scope of these rules explicitly include

oil contained in fuel tanks of diesel

locomotives. The DOI cited two spills

that resulted from train derailments and

posed a potential threat of significant

impact to natural resources. RSPA has

not adopted this recommendation.

RSPA notes that every railroad

transporting oil in a tank car is required

to prepare and maintain at least a basic

spill response plan that may be

employed to adequately address

potential threats posed by oil contained

in fuel tanks. Also, the limited scope of

rules specified in Part 130 does not

negate a railroad’s responsibility for

cleanup and liability, under the

FWPCA, of oil discharged from a fuel

tank.

Applicability to Oil in Liquid Form. In

response to the numerous comments

asking for clarification as to the

applicability of these regulations to oil

in its various forms, RSPA is amending

§ 130.2 (Scope) to provide that this rule

applies to oil in the liquid form only.

This provision is adopted so as to apply

requirements for prevention,

containment, and response planning in

Part 130 to that form of oil which poses

the greatest threat to the marine

environment.

To assist shippers in determining if a

material is a liquid, RSPA is adopting in

this final rule a relatively simple test

developed by the American Society for

Testing and Materials in its standard

ASTM D 4359–84, ‘‘Standard Test

Method for Determining Whether a

Material is a Liquid or a Solid.’’ Under

this standard, many viscous materials,

like number six diesel fuel and some

grades of asphalt, are included in the

definition of liquid. Conversely, on the

basis of this standard, solidified tars and

other oils having a relatively high

melting point may not be subject to Part

130, nor will oil-containing materials

like soybean meal and cotton seeds.

Mixtures and Solutions Containing

Oil. A number of comments suggested

that the rule exclude materials

containing only a small proportion of oil

in mixture or solution. RSPA’s proposal

at the June 28, 1993 public meeting to

exclude mixtures and solutions in

which oil is in a concentration by

weight of less than 10 percent drew

broad support from many persons

commenting on IFR–2. This exclusion

considers that the volume of oil

contained in many products is at levels

which pose no serious harm to the

marine environment within the meaning

of 33 U.S.C. 1321(j). This exception

considers numerous comments to the

docket, under IFR–1, that support

adoption of an exception for oil in

mixtures and solution.

RSPA’s determination to apply a

mixtures rule that uses a threshold

value of 10 percent oil parallels its

regulation under Federal hazmat law of

hazardous substances that pose a threat

to the marine environment. Since 1980,

RSPA has provided an exception from

application of the HMR for mixtures and

solutions containing, in a concentration

by weight of less than 10 percent,

hazardous substances with an EPAdesignated ‘‘reportable quantity’’ value

of 5,000 pounds. This determination is

specific to prevention, containment, and

response planning requirements under

Part 130. As noted above concerning

application of the requirements in Part

130 to oil contained in integral fuel

tanks of a locomotive, this action does

not provide carriers with a general

exception from responsibility for

cleanup and liability under the FWPCA

for the discharge of dilute mixtures

containing oil. Therefore, we

recommend that all carriers incorporate

within their operations plans effective

measures to prevent oil spills and to

mitigate the effects of discharges of oil

which do occur.
30536 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations

Container Residue. One commenter

requested an exception for bulk

packagings containing oil residue on the

basis that the amount remaining in the

packaging may be less than an

unregulated quantity of oil in a nonbulk packaging. RSPA has not adopted

that suggestion. The empty return of

most bulk packagings is accomplished

by the same carrier that transported the

filled container. Thus, the relief

available to the carrier is negligible,

particularly when it would necessitate a

requirement to determine and document

the amount of residue. In addition,

RSPA believes that an exception is not

warranted because it is important that

all closures remain properly secured, as

required by § 130.21, even after

unloading, as long as oil residue

remains present.

C. Prevention and Containment

Requirements

General. The bulk of oils transported

by motor vehicle and railway, including

petroleum oils like gasoline and fuel oil

and some non-petroleum oils like

turpentine, already are classed as

hazardous materials under Federal

hazmat law because of their threats to

health and safety. RSPA’s

implementation of the § 1321(j)(1)(C)

mandate to issue regulations to prevent

and contain oil discharges in motor

vehicle and railway transport proceeds

from the fact that these oils, which also

are the oils of greatest environmental

concern, are subject to the

comprehensive regulatory framework of

the HMR. Transportation of these oils

must meet detailed requirements in the

HMR pertaining to specification

packaging, hazard communication

(marking, placarding, 24-hour

emergency response telephone numbers,

shipping papers, etc.), loading and

unloading operations, and routing. See

generally 49 CFR parts 171–180. In

addition, each employee of a person

offering for transportation or

transporting an oil that is a hazardous

material must receive training specific

to the hazardous materials-related

functions he or she performs. 49 CFR

172.700. Basic spill response planning

and response plan implementation

under § 1321(j)(1)(C) (in addition to

comprehensive planning under

§ 1321(j)(5)) appropriately supplement

these requirements. The record of safe

transportation of these oils supports the

conclusion that no additional spill

prevention or containment requirements

are necessary.

The volume of petroleum oil shipped

by highway and rail not subject to the

HMR is small by comparison with the

total volume. Most of this oil is

lubricating oil and includes an

increasing amount of used oil intended

for recycling. As noted by commenters,

petroleum oil has toxic, solvent and

physical properties that pose a threat to

the marine environment which RSPA

seeks to minimize through the

prevention and containment

requirements specified in Part 130.

These regulations apply to petroleum

oils offered for transportation or

transported in bulk packagings having a

capacity of 3,500 gallons or more. RSPA

believes these requirements provide an

adequate degree of protection for the

marine environment at a cost

commensurate with the risk posed by

this class of oils.

The prevention requirements apply to

non-petroleum oils, both because

§ 1321(j)(1)(C) mandates reasonable

measures to prevent and contain

discharges of these oils, and because

their physical properties can harm the

environment. On the basis of its review

of reported incidents involving spills of

non-petroleum oils on rail lines and

public highways, RSPA determined that

the frequency and volume of such

discharges, generally does not support

application of the rules and regulations

in Part 130 to the same extent as

required for petroleum oils. Thus, while

the same prevention and containment

requirements specified in Part 130 for

petroleum oils pertain to non-petroleum

oils, RSPA applies those rules at a

higher threshold value (i.e., quantities

greater than 42,000 gallons in a single

packaging). These prevention and

containment requirements complement

the comprehensive response plan

requirement triggered at the same

quantity threshold.

Comments submitted to the docket

suggest that some non-petroleum oil

such as turpentine and tung oil

possesses toxicity, solvent and physical

properties warranting that its

transportation be subject to spill

prevention and containment

requirements at the lower, 3,500-gallon

threshold applicable to petroleum oil.

While it may be appropriate to make

regulatory distinctions among

petroleum or non-petroleum oils to

account for the different risks that

particular oils present to the marine

environment, the docket does not

contain sufficient information on the

properties of specific oils for RSPA to

make substantive regulatory distinctions

other than between petroleum and nonpetroleum oil.

The rule adopts general definitions

that establish three categories of nonpetroleum oil: ‘‘animal fat,’’ ‘‘vegetable

oil’’ and ‘‘other non-petroleum oil.’’ The

last group includes, for example,

synthetic oils, essential oils such as

turpentine, and oils otherwise meeting

the definition of an animal fat or a

vegetable oil but specifically excluded

from that category through rulemaking.

This subcategorization of non-petroleum

oils has no practical significance at this

time, as all non-petroleum oils are

subject to the same prevention and

response planning requirements. It may

provide an initial framework, however,

for future RSPA rulemaking to refine the

prevention and response planning

regulations in Part 130.

Packaging. A number of commenters

requested clarification regarding the

packaging requirement for oil in bulk

transport vehicles. Specifically, they

questioned whether RSPA interprets

§ 130.21 to require DOT specification

cargo tanks, such as the MC–306

commonly used for gasoline and other

volatile liquids. Section 130.21 does not

require specification containers. For

those oils not subject to the HMR, a nonspecification cargo tank that conforms to

the basic requirements of § 130.21 is

acceptable.

Basic Response Planning as an

Element of Prevention Standards. Part

130 contains basic response plan

requirements applicable to

transportation of petroleum oil in a bulk

packaging with a capacity of 3,500

gallons or more. The 3,500-gallon

capacity threshold is the same threshold

used to subject shippers and carriers to

the registration requirement under

Federal hazmat law, 49 U.S.C. 5108.

Also, the Federal Highway

Administration’s financial

responsibility requirement, 49 CFR part

387, applies to motor carriers that

transport hazardous substances in cargo

tanks, portable tanks, or hopper-type

vehicles with capacities in excess of

3,500 water gallons.

In IFR–1, RSPA prescribed

requirements for preparation of basic

response plans as part of prevention and

containment requirements applicable to

shipments of oil in bulk packagings

having a capacity greater than 119

gallons. Comments to the docket

suggested that the 119-gallon threshold

was unnecessarily low since, under

conditions normally incident to

transportation, a discharge of oil in that

volume will not threaten the marine

environment to an extent warranting

mandatory spill response plan

preparation.

On the basis of its review of those

comments, RSPA revised the threshold

for applying prevention and

containment requirements, including

the requirement to prepare a basic

response plan, from all bulk packagings

to those having a capacity of 3,500
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations 30537

gallons or more. The 3,500-gallon

threshold was selected, in part, because

of its use in related programs for

emergency response and carrier

liability. Specifically, registration

requirements under Federal hazardous

materials transportation law, 49 U.S.C.

5108, and Federal Highway

Administration financial responsibility

requirements for the transportation of

hazardous substances, 49 CFR part 387,

are keyed to the 3,500-gallon threshold.

Response Plan Implementation. With

respect to the prevention, containment

and cleanup of oil discharges, the scope

of 33 U.S.C. 1321 extends to discharges

into the navigable waters of the United

States, the shorelines of those waters,

and natural resources belonging to,

appertaining to, or under the exclusive

management authority of the United

States. 33 U.S.C. 1321(c)(1)(A); see also

33 U.S.C. 1321(b)(3) (prohibiting

discharges to navigable waters,

shorelines and natural resources).

‘‘Navigable waters’’ under this rule has

the meaning given to it at 40 CFR 110.1.

One commenter stated that response

planning requirements should apply

only to transportation where a discharge

could reach one of these three areas.

Because virtually all transportation of

oil poses a potential risk to these areas,

the response planning requirements of

§ 130.31 apply to the full range of

transportation indicated in § 130.2. The

§ 130.33 requirement that the

transporter implement its response plan

to contain and remove a discharge,

however, applies only when the

discharge falls within the jurisdiction of

§ 1321, as described above and set forth

at § 130.33.

RSPA recognizes that when a

discharge has occurred, it may be

difficult to determine immediately and

with certainty that the discharge has not

reached, or does not substantially

threaten to reach, navigable waters,

shorelines, or Federally controlled

natural resources. Because the

determination, for practical purposes,

will be made by the Coast Guard (in the

coastal zone) or EPA (in the inland

zone), the operator is advised to begin

to implement its response plan

wherever a discharge occurs. In

addition, Part 130 does not affect the

applicability of other Federal, State,

local or Indian tribe requirements that

may impose response obligations on the

transporter. Accordingly, while § 130.33

is binding only with respect to

discharges that reach or threaten to

reach navigable waters, shorelines or

Federally controlled natural resources,

RSPA strongly encourages transporters

to take all appropriate response actions

regardless of the location of a spill.

With respect to the comprehensive

response plan at § 130.31(b), applicable

to the transportation of more than

42,000 gallons of oil in a single

packaging, § 1321(j)(5)(C)(i) mandates

that a response plan shall be consistent

with the National Contingency Plan

(NCP). The requirement for a basic

response plan for transportation of

petroleum oil in bulk packagings of

3,500 gallons or greater (but in an

amount not exceeding 42,000 gallons),

is issued as a prevention and

containment rule pursuant to

§ 1321(j)(1)(C). Nevertheless, 33 U.S.C.

1321(c)(3)(B) states that any action taken

by a transporter in response to a

discharge that reaches or threatens to

reach navigable waters, shorelines or

Federally controlled natural resources

must be consistent with the NCP, or as

directed by the President. (The

President’s authority is delegated,

through the EPA Administrator and the

Secretary of Transportation, to the

Federal on-scene coordinator. E.O.

12777, 56 FR 54757, § 3.) Section 130.33

emphasizes that the transporter’s

obligation to implement its response

plan does not excuse it from compliance

with 33 U.S.C. 1321(c)(3)(B) or any

other legal response obligations.

D. Response Planning Requirements

Mandated by the OPA (33 U.S.C.

1321(j)(5))

Section 130.31(b) contains

requirements for comprehensive

response plans for oil transportation in

bulk packagings in a quantity greater

than 42,000 gallons (1,000 barrels) per

packaging. Bulk packagings include

cargo tanks (tank trucks), railroad tank

cars and portable tanks. This section

fulfills the FWPCA mandate for

regulations requiring response plans to

be prepared by an owner or operator of

an onshore facility that, ‘‘because of its

location, could reasonably be expected

to cause substantial harm to the

environment by discharging into [or] on

the navigable waters or adjoining

shorelines.’’ 33 U.S.C. 1321(j)(5). The

comprehensive response plan is more

extensive than the basic response plan

under § 1321(j)(l)(C); the comprehensive

plan must meet the content and

submission requirements of

§ 1321(j)(5)(C).

RSPA’s identification of 42,000

gallons as the threshold for so-called

‘‘substantial harm’’ facilities received

many comments. Those comments

suggested alternate thresholds ranging

from 10,000 to 1,000,000 gallons, as

well as a finding that no motor vehicle

or railway facility meets the ‘‘substantial

harm’’ standard. Ten thousand gallons

defines a major inland zone spill under

the NCP. 40 CFR 300.5 (‘‘Size classes of

discharges’’). The EPA selected one

million gallons as the threshold for

fixed ‘‘substantial harm’’ facilities under

certain circumstances. 33 CFR

112.20(f)(1)(ii) (published at 59 FR

34099) (July 1, 1994).

None of the alternative thresholds

suggested by commenters was

accompanied by objective data that

would support the threshold any

commenter proposed. At the low end of

the range, a standard of 250-barrel

(10,500 gallon) vessel oil cargo capacity

is applied by the U.S. Coast Guard for

transfers of oil between vessels and

mobile or fixed transfer facilities. The

Coast Guard designated mobile transfer

facilities as ‘‘substantial harm’’

facilities. It designated fixed facilities as

facilities that could reasonably be

expected to cause ‘‘significant and

substantial harm’’ to the environment in

the event of a discharge. 33 U.S.C.

1321(j)(5)(D). The response plan for a

facility in this category, under

§ 1321(j)(5)(D), must be submitted to the

Coast Guard for review and approval. A

lower threshold is justified for these

facilities by the fact that the probability

of an oil spill to the marine environment

is greater during oil transfer between

land and a vessel than during

transportation over railways and

highways.

Conversely, the 1,000,000-gallon

threshold adopted by EPA is contingent

on several factors, including restrictive

provisions that the facility may not

transfer oil over water to or from vessels

and that the facility’s proximity to a

public drinking water intake must be

sufficiently distant to assure that the

intake would not be shut down in the

event of a discharge. Further, the EPA

threshold refers to the capacity not of a

single fixed storage tank, but of the

entire facility, including barrels and

drums stored at the facility. In

summary, this example also is not

analogous to hazards routinely

encountered during transportation by

railway and highway.

During the June 28, 1993 public

meeting, the ‘‘substantial harm’’

threshold was discussed at length, but

participants did not agree on what

volume of oil reasonably could cause

substantial harm to the marine

environment. Also, the 42,000-gallon

threshold is supported by a number of

comments to the docket citing its use by

the EPA in related sections of the Code

of Federal Regulations. Consequently,

RSPA believes its determination to use

a threshold value of 42,000 gallons in a

single packaging is appropriate and

reasonable.
30538 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations

Regarding use of 42,000 gallons as the

threshold for the comprehensive

response plan requirement, the

Association of American Railroads

suggested that the rule discriminates

against the railroad industry, as only it,

and not the trucking industry, has the

potential to transport that quantity of oil

in a single packaging. The rule does not

discriminate against the railroad

industry. Rather, it operates differently

as between the two industries due to the

fact that the railroad industry is capable

of transporting a larger quantity of oil in

a single bulk packaging. The risk to the

marine environment posed by oil in

transport is proportional to the quantity

of oil that could be discharged in an

accident, and the rule, reasonably,

regulates on that basis. Where other

factors such as proximity to navigable

waters gain in importance, both motor

vehicle and railway transport are subject

to comprehensive planning

requirements. See 58 FR 7330 (Coast

Guard interim final rule). RSPA notes

again that, on the basis of available

information, no rail carrier is

transporting oil in a quantity greater

than 42,000 gallons in tank cars.

E. Contents of Comprehensive and

Basic Response Plans

Several commenters requested

guidance for preparing spill response

plans under § 130.31(a) and (b). The

purposes of the response plan are to

ensure: (1) that personnel are trained

and available and equipment is in place

to respond to an oil spill; and (2) that

procedures are established before a spill

occurs so that required notifications and

appropriate response actions will follow

expeditiously when there is a spill. The

response plan, whether the basic plan

under § 130.31(a) or the comprehensive

plan under § 130.31(b), should be a

complete and practical document that

serves these purposes.

Neither the basic nor the

comprehensive plan is required to

address response on a vehicle- or

location-specific basis. A nationwide,

regional or other generic plan is

acceptable, provided that it covers the

range of spill scenarios that the owner

or operator foreseeably could encounter.

Thus, scenarios ranging from a minor

discharge to a ‘‘maximum potential

discharge,’’ § 130.31(a)(2), or a ‘‘worst

case discharge,’’ § 130.31(b)(4), should

be addressed, as well as the range of

topographical and climatological

conditions the owner or operator may

face. The plan also should describe the

response when the discharge results

from, or is accompanied by, a

complicating condition, such as

explosion or fire.

The comprehensive plan should, at a

minimum, specify and discuss the

following:

(1) The range of response scenarios

that foreseeably could occur.

(2) The qualified individual, the

alternate qualified individual, and all

other personnel with a role in spill

response.

(3) The training, including drills,

required for each of these persons.

(4) The equipment necessary for

response to the maximum extent

practicable in each of the identified

scenarios.

(5) The means by which the

availability of personnel and equipment

will be ensured to respond to a spill to

the maximum extent practicable.

(6) Governmental officials and others

to be notified in the event of a spill, and

the notification procedure to be

followed.

(7) The means for communicating

among responsible personnel and

between personnel and officials during

a response.

(8) The procedures to be followed

during a response.

The basic response plan should

address the same topics, with the

exceptions that training and drills are

not required for identified personnel

and the owner or operator need not

demonstrate by ‘‘contract or other

means’’ the assurance of personnel and

equipment availability. In this final rule,

RSPA reiterates its intent that a basic

response plan must identify private

sector resources (personnel and

equipment) that the carrier may

immediately call upon to respond to a

discharge of oil. This regulatory intent

is clarified by amending § 130.31(a)(3)

to require identification of ‘‘private

personnel and equipment available to

respond to a discharge.’’

The Independent Lubricant

Manufacturers Association asked RSPA

to provide model plans. RSPA does not

believe this is necessary, but is allowing

owners and operators the flexibility to

develop plans that best address their

circumstances. Following issuance of

IFR–1, RSPA undertook an effort to

develop a model plan, but subsequently

learned that two industry associations

were developing models that would be

available to a large segment of the

affected industries. Consequently, RSPA

decided not to duplicate the private

sector effort, and the project to develop

a model plan was terminated. Owners

and operators may wish to refer to the

model plans developed by industry

associations or they may refer to the

model plan included by EPA at

Appendix F of its July 1, 1994 final rule.

59 FR 34122.

Many owners and operators required

to prepare and maintain a response plan

under this rule also will be subject to

EPA response plan requirements for

fixed facilities, or Coast Guard response

plan requirements for marine-related

facilities. As RSPA stated in the

preamble to the February 2, 1993

interim final rule, 58 FR 6866, it is

intended that owners and operators

subject to response planning

requirements of both RSPA and another

Federal agency be able to use response

planning activities to fulfill both sets of

requirements, with appropriate

modification or supplementation as

differences in spill scenarios dictate.

Accordingly, RSPA will seek to

maintain consistency with other

agencies in its interpretation of terms

and concepts contained in 33 U.S.C.

1321(j)(5). In addition, RSPA is

including, in § 130.5, the following

definitions:

Qualified individual is an individual

familiar with the response plan, trained

in his or her responsibilities in

implementing the plan, and authorized,

on behalf of the owner or operator, to

initiate all response activities identified

in the plan, to enter into responserelated contracts and obligate funds for

such contracts, and to act as a liaison

with the on-scene coordinator and other

responsible officials. The qualified

individual must be available at all times

the owner or operator is engaged in

transportation subject to Part 130 (alone

or in conjunction with an equally

qualified alternate), must be fluent in

English, and must have in his or her

possession documentation of the

required authority.

By contract or other means means (1)

a written contract with a response

contractor identifying and ensuring the

availability of the necessary personnel

or equipment within the shortest

practicable time; (2) a written

certification by the owner or operator

that the necessary personnel or

equipment can and will be made

available by the owner or operator

within the shortest practicable time; or

(3) documentation of membership in an

oil spill response organization that

ensures the owner’s or operator’s access

to the necessary personnel or equipment

within the shortest practicable time.

Maximum extent practicable means

the limits of available technology and

the practical and technical limits on an

owner or operator conducting response

activities under a particular set of

circumstances.

Worst-case discharge for an onshore

facility is defined at 33 U.S.C.

1321(a)(24) as ‘‘the largest foreseeable

discharge in adverse weather
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations 30539

conditions.’’ The largest foreseeable

discharge from a motor vehicle or rail

car is the capacity of the cargo

container. The term ‘‘maximum

potential discharge,’’ used in

§ 130.31(a), is synonymous with ‘‘worstcase discharge.’’

F. Federal Preemption

RSPA received two comments

concerning the effect that the RSPA rule

will have on the existing and future

regulation of oil transportation by States

and localities. Part 130 is issued under

authority of 33 U.S.C. 1321(j)(1) (C) and

1321(j)(5). For this reason, it is subject

to 33 U.S.C. 1321(o)(2), which states:

Nothing in this section shall be construed

as preempting any State or political

subdivision thereof from imposing any

requirement or liability with respect to the

discharge of oil or hazardous substance into

any waters within such State, or with respect

to any removal activities related to such

discharge.

This provision indicates that Federal

regulation under 33 U.S.C. 1321 does

not preempt, but rather accommodates,

regulation by States and political

subdivisions concerning the same

subject matter. Thus, the establishment

of oil spill prevention and response plan

requirements in this rule will affect

neither existing State and local

regulation in the area, nor State and

local authority to regulate in the future.

RSPA has not received any comments

from State or local governments on this

issue.

The American Trucking Associations

(ATA) requested that RSPA return to the

approach abandoned in IFR–2 of

designating oil transported in the

relevant bulk quantity as a hazardous

material, and issuing the final rule

under joint authority of the FWPCA and

Federal hazmat law. The ATA seeks in

this way to give the rule the preemptive

effect over non-Federal regulation that

Federal hazmat law provides. Unlike the

preservation of State and local authority

under 33 U.S.C. 1321, Federal hazmat

law provides for extensive preemption

of non-Federal requirements. 49 U.S.C.

5125.

Promulgation of oil spill prevention

and response planning regulations

under both the FWPCA and Federal

hazmat law would not necessarily result

in the preemptive effect the commenter

desires. Section 5125 provides for

preemption of non-Federal requirements

only to the extent those requirements

are not otherwise authorized by Federal

law. As cited above, 33 U.S.C.

1321(o)(2) explicitly preserves the

authority of non-Federal jurisdictions to

regulate oil spill prevention and

response. Whether this constitutes

Federal authority sufficient to insulate

non-Federal requirements regulating in

this area from Federal hazmat law

preemption is a question that has not

been decided and, as noted below, is not

decided here.

More importantly, Federal oil

transportation regulations should carry

the preemptive force of Federal hazmat

law only when they are issued to

implement the mandate of that law.

As explained above, RSPA has

determined not to exercise its authority

under Federal hazmat law to regulate oil

that does not meet the definition of any

hazard-specific class under the HMR,

and is not an elevated temperature

material, a hazardous substance or a

hazardous waste. Accordingly, Part 130

is issued solely under FWPCA

authority, and the preemption standards

of 49 U.S.C. 5125 do not apply.

The Chemical Waste Transportation

Institute asks RSPA to clarify the extent

to which 33 U.S.C. 1321(o)(2) authorizes

non-Federal regulation of hazardous

materials different from or additional to

the HMR with respect to emergency

response training, equipping vehicles

with personal protective equipment,

incident reporting, emergency drills,

insurance, or response plan

maintenance. Under 49 U.S.C. 5125, a

non-Federal requirement that otherwise

would be preempted is not preempted if

it is otherwise authorized by Federal

law. The commenter requests a finding

that § 1321(o)(2) does not ‘‘otherwise

authorize’’ non-Federal regulation of

oils that are designated hazardous

materials.

The commenter, in short, asks

whether 33 U.S.C. 1321(o)(2)

constitutes, under 49 U.S.C. 5125, an

‘‘authorization’’ of non-Federal

regulation that otherwise would be

preempted by the HMR. This question

will become pertinent when a nonFederal requirement concerning oil spill

prevention or response is challenged as

contrary to the HMR. The rule issued

today neither limits nor expands nonFederal authority to regulate oil

transportation, and has no bearing on

how § 1321(o)(2) is interpreted. The

question the commenter poses,

accordingly, is outside the scope of this

rulemaking, and it is not appropriate for

RSPA to decide it here.

Section 5125 provides for a formal

administrative determination of

preemption, on application of a party

directly affected by a specific

requirement of a State, State subdivision

or Indian tribe. When an application is

filed with RSPA concerning a specific

non-Federal requirement regulating the

transportation of oil designated as a

hazardous material, and the jurisdiction

maintaining that requirement claims

that it is authorized by 33 U.S.C.

1321(o)(2), RSPA will examine the

relationship between § 1321(o)(2) and

49 U.S.C. 5125.

G. Other Substantive Issues Addressed

by Commenters

Linking FWPCA and Federal Hazmat

Authority for Oils That Are Hazardous

Materials. One commenter, a State

agency, suggested that as to oils that

already are designated hazardous

materials, Part 130 be incorporated by

reference into the HMR. According to

the commenter, this would allow the

State to enforce Part 130, with respect

to oils designated as hazardous

materials, directly through its existing

regulatory structure. In addition, it

would place the responsibility for

enforcing Part 130, with respect to those

oils, with the State agency responsible

for enforcing the HMR as to those oils.

RSPA is not adopting this suggestion.

Significant confusion could result from

issuing Part 130 under the FWPCA as to

certain oils and under both the FWPCA

and Federal hazmat law as to certain

other oils. In addition, the Federal

authority to enforce oil transportation

regulations under Federal hazmat law

and those under the FWPCA lies with

different agencies— in the former case,

the Federal Railroad Administration, the

Federal Highway Administration and

RSPA and, in the latter, the Coast Guard

and EPA. Incorporation by reference of

some portion of Part 130 into the HMR

would result in duplicative and

potentially inconsistent enforcement, to

the detriment of the regulated

community. Under 33 U.S.C. 1321(o)(2),

a State may adopt Part 130 verbatim, or

may enact other laws with respect to oil

spill prevention and response. The rule

does not constrain the State’s ability to

regulate in this area or to determine

what State body is to implement the

regulations that are enacted.

Documentation to Accompany

Shipments of Oil. Section 130.11(b)

prohibits transporting oil subject to this

part unless a readily available document

indicating that the shipment contains

oil is in the possession of the transport

vehicle operator during transportation.

This section drew comments from the

Association of American Railroads and

several railroad companies, contending

that the requirement is burdensome and

serves no purpose. They state that the

predominant practice in the railroad

industry is to generate commodity

descriptions from a computerized

Standard Transportation Commodity

Code, but that system does not easily

accommodate unique shipping paper

information, especially for shipments
30540 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations

handled by several carriers. These

commenters suggest that their response

to any incident involving oil will be just

as timely and appropriate absent the

specific identification of each

commodity that meets the definition of

oil.

RSPA is retaining this requirement. It

does not agree that the requirement is

unnecessarily burdensome. Train crews

currently carry a manifest that

specifically identifies each car and its

contents. Frequently the manifest is the

only source of information available to

first responders to an incident, and

RSPA believes it is important that

responders be able to immediately

identify shipments of oil that potentially

threaten the environment. RSPA

emphasizes that this requirement can be

met by an appropriate notation on

currently used transportation

documents. Thus, there is no need to

create a new document.

The Association of American

Railroads requests that the word

‘‘knowingly’’ be added between the

words ‘‘may’’ and ‘‘transport’’ in

§ 130.11(b), so that a carrier would not

be held responsible for identifying oil

shipments unless the shipper has

informed the carrier that the cargo

presented for transport includes oil. The

commenter states that the carrier

depends on the shipper for commodity

identification.

RSPA is not adopting this request.

Sections 1321(b) (6) and (7) of 33 U.S.C.

set forth the circumstances under which

administrative and civil penalties may

be levied for violation of Part 130. These

sections do not provide that a carrier is

subject to penalties for violating Part

130 only when it has knowledge of facts

that bring it within the compass of the

regulations. Rather, the statute imposes

a strict liability standard, placing the

burden on the carrier affirmatively to

determine whether it is carrying cargo

that subjects it to requirements under

Part 130. Indeed, the change the

commenter proposes, by excusing

compliance with the regulation absent

actual carrier knowledge that it was

transporting oil, would encourage the

carrier to remain ignorant of its cargo.

This would not further the statutory

goal of improving oil spill prevention

and containment. Under § 130.11, the

shipper must provide the carrier a

document indicating that the shipment

includes oil; at the same time, the

carrier independently must take

whatever steps it finds reasonable to

satisfy itself that it either is or is not

accepting oil for shipment.

In response to a question from a

commenter, RSPA acknowledges that a

shipper may use a Material Safety Data

Sheet (MSDS) to notify a carrier that a

shipment contains oil, and a carrier may

use an MSDS to accompany a shipment

during transportation. This

acknowledgement presumes that the

MSDS accurately and clearly identifies

the material as an oil.

Several commenters requested

clarification as to placing the ‘‘oil’’

notation on a hazardous materials

shipping paper. If the proper shipping

name or technical name of a hazardous

material that meets the definition of

‘‘oil’’ does not reflect that it is an oil,

then the word ‘‘oil’’ may be separately

added or appear with the product name,

trade name or other information

associated with that material on the

shipping paper in addition to required

descriptions, consistent with 49 CFR

172.201(a)(4).

Finally, RSPA is adding a list of

common shipping descriptions that it

believes effectively communicate that

the materials are oil, thereby precluding

the need to specifically add the word

‘‘oil’’ to shipping documents. The list of

common shipping names is added at

§ 130.11.

Requirements Based on Packaging

Capacity vs. Those Based on Volume.

Several comments suggested that the

rule is inconsistent in applying basic

response planning requirements and

prevention and containment

requirements to shipments of petroleum

oil in packagings with a capacity of

3,500 gallons or larger and applying

comprehensive response plan

requirements, and prevention and

containment requirements for nonpetroleum oils, to shipments in a

volume of more than 42,000 gallons in

a single packaging.

Applying prevention and containment

requirements for petroleum oil on the

basis of the container capacity is

warranted by the practical problems that

would result from applying them on the

basis of actual volume of oil present.

Vehicles transporting petroleum oil in

the volume range of 3,500 gallons

typically make more than one stop in

delivering the full cargo they are

carrying. Determining the actual volume

of oil present at any given time would

require accurate flow metering devices

capable of accounting for temperature

variations. Further, Federal, State and

local authorities conducting on-the-road

enforcement inspections would be

unable to determine whether the

regulations applied to a given shipment

absent a means to measure the volume

of the cargo. RSPA expects that most

petroleum oil cargo tanks and tank

trucks with a capacity of 3,500 gallons

or larger at some time will be used to

transport 3,500 gallons or more of

petroleum oil, so that the owner or

operator will be required to prepare a

basic response plan in any event. The

burden of these vehicles’ complying

with packaging and communication

requirements in those cases when they

are carrying less than 3,500 gallons is

small enough to justify the

administratively simpler approach of

basing the applicability of prevention

and containment requirements on

vehicle cargo capacity.

Conversely, oil shipments in single

packagings of more than 42,000 gallons

will be few and limited to railroad tank

cars. Any shipment of this volume that

does occur likely would be to a single

consignee, so that in-transit volume

measurements would not be necessary.

Further, comprehensive response plan

requirements under 33 U.S.C. 1321(j)(5)

are addressed to oil transport that meets

a specified (‘‘substantial harm’’)

environmental risk threshold. RSPA’s

conclusion that oil volume is the

relevant criterion in determining

environmental risk makes it reasonable

that the applicability of comprehensive

response plan requirements depend on

the volume of oil being transported in

the tank car.

H. Interagency Coordination

In addition to RSPA’s rulemakings in

this docket (PC–1) and Docket PS–130,

Response Plans for Onshore Oil

Pipelines, three other Federal agencies

recently have completed or presently

are engaged in rulemaking to implement

the spill response planning mandate of

33 U.S.C. 1321(j)(5) within their areas of

jurisdiction. These Federal agencies are

the U.S. Coast Guard (vessels and

marine transportation-related facilities);

the EPA (non-transportation-related

onshore facilities); and the Department

of the Interior’s Minerals Management

Service (DOI/MMS) (offshore oil

production facilities). RSPA believes

that the five sets of regulations should

be consistent to the extent practicable,

recognizing that the risk of and damage

from spills from different types of

facilities and vessels require that

distinctions be made.

The importance of consistency among

the regulations of the different agencies

implementing § 1321(j) generally has

been expressed in a September 10, 1993

letter to RSPA’s Acting Administrator

from the National Response Team

(NRT). The NRT is responsible under

the NCP for national coordination of oil

spill response planning. 40 CFR

300.110. RSPA is the DOT

representative on the NRT, and RSPA’s

Associate Administrator for Hazardous

Materials Safety chaired the NRT

Prevention Committee.
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations 30541

RSPA has met to discuss these issues

with representatives of the USCG, EPA

and MMS. The meetings have included

participation by representatives of the

trustees for natural resources managed

or protected by the Departments of the

Interior, Agriculture and Commerce.

These meetings were informal sessions

in which staff members of the interested

agencies came together to discuss

differences in regulations issued under

the authority of 33 U.S.C. § 1321(j).

RSPA will continue to coordinate

with the Coast Guard, EPA and MMS, as

well as other member agencies of the

NRT. In the future, RSPA may

undertake rulemaking to consider

modifications of the rule as a result of

this coordination. In addition, RSPA

may evaluate the adequacy of these

rules and regulations in light of Area

Contingency Plans (ACP’s) prepared by

representatives of Federal, State and

local agencies. Under 33 U.S.C.

1321(j)(4)(C)(ii), each ACP shall describe

the area covered by the plan, including

the areas of specific economic or

environmental importance that might be

damaged by a discharge. Should it be

determined that any of these specific

environments may be inadequately

protected against the threats posed by

the transportation of oil in a motor

vehicle or rail car, RSPA may reopen

this docket to consider additional

requirements for response planning, or

spill prevention and containment, to

address those threats. For example,

RSPA could, through rulemaking,

establish criteria and procedures for

case-by-case designation of facilities

subject to response planning

requirements.

II. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT

Regulatory Policies and Procedures

This final rule is considered a

significant regulatory action under

section 3(f) of Executive Order 12866

and was reviewed by the Office of

Management and Budget. The rule is

considered significant under the

Regulatory Policies and Procedures of

the Department of Transportation (44 FR

11034) because of public and

congressional interest. A regulatory

evaluation is available for review in the

docket.

B. Regulatory Flexibility Act

I certify that this final rule will not

have a significant economic impact on

a substantial number of small entities.

While this rule applies to numerous

shippers and carriers of oil in bulk,

some of whom are small entities, the

spill prevention and response planning

requirements contained herein will not

result in a significantly adverse

economic impact.

C. Executive Order 12612

This final rule has been analyzed in

accordance with the principles and

criteria in Executive Order 12612

(‘‘Federalism’’) and does not have

sufficient federalism impacts to warrant

the preparation of a federalism

statement.

D. Paperwork Reduction Act

Information collection requirements

applicable to written oil spill response

plans are unchanged in substance and

amount of burden from those previously

approved under Office of Management

and Budget (OMB) control number

2137–0591 (extended to: June 30, 1996).

RSPA will request reinstatement and

revision of this approval from OMB and

will display, through publication in the

Federal Register, the valid control

number upon approval by OMB. Public

comment on this request was invited

through publication of a Federal

Register notice on March 5, 1996 (61 FR

8706). Under the Paperwork Reduction

Act of 1995, no person is required to

respond to a requirement for collection

of information unless the requirement

displays a valid OMB control number.

E. Regulation Identifier Number (RIN)

A regulation identifier number (RIN)

is assigned to each regulatory action

listed in the Unified Agenda of Federal

Regulations. The Regulatory Information

Service Center publishes the Unified

Agenda in April and October of each

year. The RIN contained in the heading

of this document can be used to crossreference this action with the Unified

Agenda.

List of Subjects in 49 CFR part 130

Incorporation by reference, Oil,

Response plans, Reporting and

recordkeeping requirements,

Transportation.

In consideration of the foregoing, 49

CFR part 130 is revised to read as

follows:

PART 130—OIL SPILL PREVENTION

AND RESPONSE PLANS

Sec.

130.1 Purpose.

130.2 Scope.

130.3 General requirements.

130.5 Definitions.

130.11 Communication requirements.

130.21 Packaging requirements.

130.31 Response plans.

130.33 Response plan implementation.

Authority: 33 U.S.C. 1321.

§ 130.1 Purpose.

This part prescribes prevention,

containment and response planning

requirements of the Department of

Transportation applicable to

transportation of oil by motor vehicles

and rolling stock.

§ 130.2 Scope.

(a) The requirements of this part

apply to—

(1) Any liquid petroleum oil in a

packaging having a capacity of 3,500

gallons or more; and

(2) Any liquid petroleum or nonpetroleum oil in a quantity greater than

42,000 gallons per packaging.

(b) The requirements of this part have

no effect on—

(1) The applicability of the Hazardous

Materials Regulations set forth in

Subchapter C of this chapter; and

(2) The discharge notification

requirements of the United States Coast

Guard (33 CFR part 153) and EPA (40

CFR part 110).

(c) The requirements of this part do

not apply to—

(1) Any mixture or solution in which

oil is in a concentration by weight of

less than 10 percent.

(2) Transportation of oil by aircraft or

vessel.

(3) Any petroleum oil carried in a fuel

tank for the purpose of supplying fuel

for propulsion of the transport vehicle

to which it is attached.

(4) Oil transport exclusively within

the confines of a non-transportationrelated or terminal facility in a vehicle

not intended for use in interstate or

intrastate commerce (see 40 CFR part

112, appendix A).

(d) The requirements in § 130.31(b) of

this part do not apply to mobile marine

transportation-related facilities (see 33

CFR part 154).

§ 130.3 General requirements.

No person may offer or accept for

transportation or transport oil subject to

this part unless that person—

(a) Complies with this part; and

(b) Has been instructed on the

applicable requirements of this part.

§ 130.5 Definitions.

In this subchapter: Animal fat means

a non-petroleum oil, fat, or grease

derived from animals, not specifically

identified elsewhere in this part.

Contract or other means is:

(1) A written contract with a response

contractor identifying and ensuring the

availability of the necessary personnel

or equipment within the shortest

practicable time;

(2) A written certification by the

owner or operator that the necessary
30542 Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations

personnel or equipment can and will be

made available by the owner or operator

within the shortest practicable time; or

(3) Documentation of membership in

an oil spill response organization that

ensures the owner’s or operator’s access

to the necessary personnel or equipment

within the shortest practicable time.

EPA means the U.S. Environmental

Protection Agency.

Liquid means a material that has a

vertical flow of over two inches (50 mm)

within a three-minute period, or a

material having one gram or more liquid

separation, when determined in

accordance with the procedures

specified in ASTM D 4359–84,

‘‘Standard Test Method for Determining

Whether a Material is a Liquid or a

Solid,’’ 1990 edition, which is

incorporated by reference.

Note: This incorporation by reference has

been approved by the Director of the Federal

Register in accordance with 5 U.S.C. 552(a)

and 1 CFR part 51. A copy may be obtained

from the American Society for Testing and

Materials, 1916 Race Street, Philadelphia, PA

19103. Copies may be inspected at the

Dockets Unit, Room 8421, DOT headquarters

building, 400 7th St. SW, Washington, DC

20590 or at the Office of the Federal Register,

800 North Capitol St. NW, Room 700,

Washington, DC.

Maximum extent practicable means

the limits of available technology and

the practical and technical limits on an

owner or operator of an onshore facility

in planning the response resources

required to provide the on-water

recovery capability and the shoreline

protection and cleanup capability to

conduct response activities for a worstcase discharge of oil in adverse weather.

Non-petroleum oil means any animal

fat, vegetable oil or other non-petroleum

oil.

Oil means oil of any kind or in any

form, including, but not limited to,

petroleum, fuel oil, sludge, oil refuse,

and oil mixed with wastes other than

dredged spoil.

Note: This definition does not include

hazardous substances (see 40 CFR part 116).

Other non-petroleum oil means a nonpetroleum oil of any kind that is not an

animal fat or vegetable oil.

Packaging means a receptacle and any

other components or materials

necessary for the receptacle to perform

its containment function in

conformance with the packaging

requirements of this part. A

compartmented tank is a single

packaging.

Person means an individual, firm,

corporation, partnership, association,

State, municipality, commission, or

political subdivision of a State, or any

interstate body, as well as a department,

agency, or instrumentality of the

executive, legislative or judicial branch

of the Federal Government.

Petroleum oil means any oil extracted

or derived from geological hydrocarbon

deposits, including fractions thereof.

Qualified individual means an

individual familiar with the response

plan, trained in his or her

responsibilities in implementing the

plan, and authorized, on behalf of the

owner or operator, to initiate all

response activities identified in the

plan, to enter into response-related

contracts and obligate funds for such

contracts, and to act as a liaison with

the on-scene coordinator and other

responsible officials. The qualified

individual must be available at all times

the owner or operator is engaged in

transportation subject to part 130 (alone

or in conjunction with an equally

qualified alternate), must be fluent in

English, and must have in his or her

possession documentation of the

required authority.

Transports or Transportation means

any movement of oil by highway or rail,

and any loading, unloading, or storage

incidental thereto.

Vegetable oil means a non-petroleum

oil or fat derived from plant seeds, nuts,

kernels or fruits, not specifically

identified elsewhere in this part.

Worst-case discharge means ‘‘the

largest foreseeable discharge in adverse

weather conditions,’’ as defined at 33

U.S.C. 1321(a)(24). The largest

foreseeable discharge from a motor

vehicle or rail car is the capacity of the

cargo container. The term ‘‘maximum

potential discharge,’’ used in

§ 130.31(a), is synonymous with ‘‘worstcase discharge.’’

§ 130.11 Communication requirements.

(a) No person may offer oil subject to

this part for transportation unless that

person provides the person accepting

the oil for transportation a document

indicating the shipment contains oil.

(b) No person may transport oil

subject to this part unless a readily

available document indicating that the

shipment contains oil is in the

possession of the transport vehicle

operator during transportation.

(c) A material subject to the

requirements of this part need not be

specifically identified as oil when the

shipment document accurately

describes the material as: aviation fuel,

diesel fuel, fuel oil, gasoline, jet fuel,

kerosene, motor fuel, or petroleum.

§ 130.21 Packaging requirements.

Each packaging used for the

transportation of oil subject to this part

must be designed, constructed,

maintained, closed, and loaded so that,

under conditions normally incident to

transportation, there will be no release

of oil to the environment.

§ 130.31 Response plans.

(a) After September 30, 1993, no

person may transport oil subject to this

part unless that person has a current

basic written plan that:

(1) Sets forth the manner of response

to discharges that may occur during

transportation;

(2) Takes into account the maximum

potential discharge of the contents from

the packaging;

(3) Identifies private personnel and

equipment available to respond to a

discharge;

(4) Identifies the appropriate persons

and agencies (including their telephone

numbers) to be contacted in regard to

such a discharge and its handling,

including the National Response Center;

and

(5) For each motor carrier, is retained

on file at that person’s principal place

of business and at each location where

dispatching of motor vehicles occurs;

and for each railroad, is retained on file

at that person’s principal place of

business and at the dispatcher’s office.

(b) After February 18, 1993, no person

may transport an oil subject to this part

in a quantity greater than 1,000 barrels

(42,000 gallons) unless that person has

a current comprehensive written plan

that:

(1) Conforms with all requirements

specified in paragraph (a) of this

section;

(2) Is consistent with the requirements

of the National Contingency Plan (40

CFR part 300) and Area Contingency

Plans;

(3) Identifies the qualified individual

having full authority to implement

removal actions, and requires

immediate communications between

that individual and the appropriate

Federal official and the persons

providing spill response personnel and

equipment;

(4) Identifies, and ensures by contract

or other means the availability of,

private personnel (including address

and phone number), and the equipment

necessary to remove, to the maximum

extent practicable, a worst case

discharge (including a discharge

resulting from fire or explosion) and to

mitigate or prevent a substantial threat

of such a discharge;

(5) Describes the training, equipment

testing, periodic unannounced drills,

and response actions of facility

personnel, to be carried out under the

plan to ensure the safety of the facility
Federal Register / Vol. 61, No. 117 / Monday, June 17, 1996 / Rules and Regulations 30543

and to mitigate or prevent the discharge,

or the substantial threat of such a

discharge; and

(6) Is submitted, and resubmitted in

the event of any significant change, to

the Federal Railroad Administrator (for

tank cars), or to the Federal Highway

Administrator (for cargo tanks) at 400

Seventh Street SW, Washington, DC

20590–0001.

(Approved by the Office of Management and

Budget under control number 2137–0591)

§ 130.33 Response plan implementation.

If, during transportation of oil subject

to this part, a discharge occurs— into or

on the navigable waters of the United

States; on the adjoining shorelines to the

navigable waters; or that may affect

natural resources belonging to,

appertaining to, or under the exclusive

management authority of, the United

States—the person transporting the oil

shall implement the plan required by

§ 130.31, in a manner consistent with

the National Contingency Plan, 40 CFR

part 300, or as otherwise directed by the

Federal on-scene coordinator.

Issued in Washington, DC on June 3, 1996,

under authority delegated in 49 CFR part 1.

D.K. Sharma,

Administrator, Research and Special

Programs Administration .

[FR Doc. 96–14611 Filed 6–14–96; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Chapter VI

[Docket No. 960606161–6161–01; I.D.

051796E]

RIN 0648–XX63

Limit on Fishery Management Plan

Development; Public Law 104–134;

Interpretation

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Interpretation.

SUMMARY: NMFS is issuing this

document to provide its interpretation

of the limitations placed on the use of

appropriated funds by the Department

of Commerce and Related Agencies

Appropriations Act of 1996 (Act) for

fiscal year 1996. The Act states that no

appropriated funds may be used to

develop or implement new fishery

management plans (FMPs), FMP

amendments, or regulations that create

new individual fishing quota (IFQ),

individual transferable quota (ITQ), or

new individual transferable effort

allocation programs, until offsetting fees

to fund such programs are authorized

under the Magnuson Fishery

Conservation and Management Act

(Magnuson Act). The purpose of this

interpretation is to provide guidance to

the regional fishery management

councils and the public on the programs

for which funds may not be expended

through the end of the fiscal year.

EFFECTIVE DATE: June 17, 1996.

FOR FURTHER INFORMATION CONTACT:

Margaret F. Hayes, Assistant General

Counsel for Fisheries, 301–713–2231.

SUPPLEMENTARY INFORMATION:

Background

The President signed the Act (Public

Law 104–134) on April 26, 1996. The

Act provides funds for the Department

of Commerce through September 30,

1996. Section 210 of the Act states the

following:

None of the funds appropriated under this

Act or any other Act may be used to develop

new fishery management plans, amendments

or regulations which create new individual

fishing quota, individual transferable quota,

or new individual transferable effort

allocation programs, or to implement any

such plans, amendments or regulations

approved by a Regional Fishery Management

Council or the Secretary of Commerce after

January 4, 1995, until offsetting fees to pay

for the cost of administering such plans,

amendments or regulations are expressly

authorized under the Magnuson Fishery

Conservation and Management Act (16 U.S.C.

1801 et seq.). This restriction shall not apply

in any way to any such programs approved

by the Secretary of Commerce prior to

January 4, 1995.

This provision is intertwined with

bills currently pending in both Houses

of Congress to reauthorize and amend

the Magnuson Act. The House-passed

bill, H.R. 39, would establish fees to be

used to administer individual quota

systems. The term ‘‘individual quota’’ is

defined in section 16(b) of the House

bill as ‘‘a grant of permission to harvest

or process a quantity of fish in a fishery,

during each fishing season for which the

permission is granted, equal to a stated

percentage of the total allowable catch

for the fishery.’’

The Senate bill, S. 39, which has not

yet passed the Senate, also would

establish fees to fund an IFQ program.

The bill (section 103) defines

‘‘individual fishing quota’’ to mean ‘‘a

revocable Federal permit under a

limited access system to harvest a

quantity of fish that is expressed by a

unit or units representing a percentage

of the allowable catch of a fishery that

may be received or held for exclusive

use by a person.’’

Congress’ intent in section 210 of the

Act apparently was to halt the

development and implementation of

any individual quota system—whether

the quotas are transferable or not—

pending passage of a law amending the

Magnuson Act to establish fees to

finance such systems. The Senate added

the term ‘‘new individual transferable

effort allocation program,’’ to section

210 of the Act although that sort of

effort control is not mentioned in either

bill to amend the Magnuson Act.

Interpretation

NMFS interprets the term ‘‘individual

fishing quota’’ as it is defined in S. 39.

That definition is functionally similar to

the definition of ‘‘individual quota’’ in

H.R. 39. NMFS believes ‘‘individual

transferable quota’’ is the same as an

IFQ, with the additional aspect of

transferability of quota among those

eligible to hold ITQs. Neither term

encompasses ‘‘community development

quotas,’’ allocations to western Alaska

communities that are treated separately

in both bills.

NMFS interprets ‘‘individual

transferable effort allocation program’’

to mean systems allowing fishermen to

transfer among themselves or

consolidate units of effort, such as days

at sea (DAS) or number of traps.

Proposals for such programs have been

discussed by the New England Fishery

Management Council for the Atlantic

sea scallop and American lobster

fisheries.

Programs Affected

Because they are funded through

Federal appropriations, the regional

fishery management councils must

suspend work until the end of the fiscal

year on portions of FMPs, amendments,

or regulations that relate to new IFQs,

ITQs, or individual transferable effort

allocation programs. NMFS has notified

each council of pending proposals it

believes are within the scope of this

restriction, as follows:

North Pacific Council: (1) IFQs for the

Alaska pollock fishery, whereby a vessel

owner would be allocated annually a

certain percentage of the pollock total

allowable catch. (2) Vessel bycatch

accounts, allocations of an allowable

take of prohibited species bycatch to an

individual vessel owner or to groups of

vessel owners.

Pacific Council: Cumulative trip

limits in the non-trawl sablefish fishery,

whereby an allowable catch would be

divided among a fixed number of permit

holders, based either on historic harvest

of the vessel or on an equal allocation