[Federal Register Volume 61, Number 117 (Monday, June 17, 1996)]
[Rules and Regulations]
[Pages 30532-30543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14611]
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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.
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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 Sec. 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,
Sec. 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 Secs. 1321(j)(1)(C) and 1321(j)(5).
E.O. 12777, 56 FR 54757, Secs. 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 Sec. 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 Sec. 1321(j)(1)(C), 57 FR 8581 (Mar. 11,
1992), and his response plan authority under Sec. 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 non-transportation-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 Sec. 1321(j)(5) ``comprehensive'' response
plan requirements, set forth at Sec. 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 Secs. 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 Sec. 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 Sec. 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, Sec. 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
[[Page 30534]]
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 Sec. 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 non-petroleum 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 Sec. 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 Sec. 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
Sec. 171.5(c), but now appear in Sec. 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 Sec. 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
[[Page 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. Sec. 1321(a)(10), Sec. 130.2 (Scope)
is revised to clearly except transportation of oil by aircraft or
vessel. For consistency with the 1971 EPA-DOT MOU, Sec. 130.2 is
revised also to except oil transportation occurring exclusively within
the confines of non-transportation-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
Sec. 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 non-commercial 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 Sec. 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, Sec. 2, 86 Stat. 862, and has not been amended. In
applying the definition for purposes of oil spill prevention,
containment and removal programs under Sec. 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 Sec. 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 Sec. 130.5 is amended so as to be identical to the
definition at Sec. 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 Sec. 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 EPA-designated ``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.
[[Page 30536]]
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 non-bulk 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 Sec. 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 Sec. 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 Sec. 1321(j)(1)(C) (in addition to
comprehensive planning under Sec. 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 Sec. 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 non-petroleum oil.
The rule adopts general definitions that establish three categories
of non-petroleum 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 Sec. 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 non-specification cargo tank that conforms to the basic
requirements of Sec. 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
[[Page 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 Sec. 130.31 apply to the full range
of transportation indicated in Sec. 130.2. The Sec. 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 Sec. 1321, as described above and set forth at
Sec. 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 Sec. 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 Sec. 130.31(b),
applicable to the transportation of more than 42,000 gallons of oil in
a single packaging, Sec. 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 Sec. 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, Sec. 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 Sec. 1321(j)(l)(C); the comprehensive plan
must meet the content and submission requirements of
Sec. 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 Sec. 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.
[[Page 30538]]
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 Sec. 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 Sec. 130.31(a) or the comprehensive plan under
Sec. 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,'' Sec. 130.31(a)(2), or a ``worst case
discharge,'' Sec. 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 Sec. 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
Sec. 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 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.
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
[[Page 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 Sec. 130.31(a), is synonymous with
``worst-case 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 Sec. 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 non-Federal requirement concerning oil
spill prevention or response is challenged as contrary to the HMR. The
rule issued today neither limits nor expands non-Federal authority to
regulate oil transportation, and has no bearing on how Sec. 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 Sec. 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
[[Page 30540]]
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
Sec. 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 Sec. 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 Sec. 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 non-
petroleum 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 Sec. 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.
[[Page 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. Sec. 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 cross-reference 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.
Sec. 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.
Sec. 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 non-petroleum 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-
transportation-related 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 Sec. 130.31(b) of this part do not apply to
mobile marine transportation-related facilities (see 33 CFR part 154).
Sec. 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.
Sec. 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
[[Page 30542]]
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 worst-case
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 non-petroleum 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 Sec. 130.31(a), is synonymous with ``worst-case
discharge.''
Sec. 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.
Sec. 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.
Sec. 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
[[Page 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)
Sec. 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 Sec. 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