Oil Spill Prevention and Response Plans

[[Page 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.

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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

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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

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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

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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