Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-03-134.

     Title of Rule and Other Identifying Information: The department of ecology is proposing to:

     1. Create new chapter 173-180 WAC, Facility oil handling standards, to consolidate four existing chapters (chapters 173-180A, 173-180B, 173-180C, and 173-180D WAC). In addition to this consolidation, ecology is also proposing new requirements for oil transfer operations.

     2. Amend chapter 317-40 WAC, Bunkering operations, to update existing requirements and incorporate new oil transfer requirements for vessels transferring oil. The new title for this chapter will be vessel oil transfer standards.

     Hearing Location(s): Columbia Basin College, Gjerde Center, 2600 North 20th Avenue, Pasco, WA 99301, (509) 547-0511 ext. 2240, on July 11, 2006, at 1:00 p.m.; at the Washington State University-Vancouver Campus, Student Services Building, Room 129-130, 14204 N.E. Salmon Creek Avenue, Vancouver, WA 98686, (360) 546-9588, on July 13, 2006, at 1:00 p.m.; at the City Council Chambers, Main Chamber Room, 321 East 5th Street, Port Angeles, WA 98362, (360) 457-0411, on July 15, 2006, at 1:00 p.m.; at the Hampton Inn, Fox Hall, 3985 Bennett Drive, Bellingham, WA 98225, (360) 676-7700, on July 18, 2006, at 1:00 p.m.; and at the Highline Community College, Building 7, 2400 South 240th, Des Moines, WA 98198, (206) 878-3710, on July 19, 2006, at 1:00 p.m.

     Date of Intended Adoption: September 25, 2006.

     Submit Written Comments to: Jason Reichert, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, e-mail oiltransferrule@ecy.wa.gov, phone (360) 407-7390, fax (360) 407-7288, received by 5 p.m. on July 26, 2006.

     Assistance for Persons with Disabilities: Contact Susanne McLemore by July 5, 2006, TTY (800) 833-6388.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposal is to implement the oil transfer requirements of RCW 88.46.160 and the related changes reflected in chapter 316, Laws of 2006 by:

•     Creating new chapter 173-180 WAC, Facility oil handling standards, that sets new requirements for Class 1, 2, 3, and 4 facilities. The four existing chapters will be repealed at a later date.

•     Amending chapter 317-40 WAC to add new requirements for nonrecreational vessels delivering and receiving oil.

     The two rules will set new oil spill prevention, response, and recovery standards for oil transfer operations that occur "over the water" to or from vessels operating in state waters.

     The proposed rules would require advance notice of oil transfers, increased communications, personnel training, and other oil spill prevention measures. In addition, certain persons delivering oil would be required to deploy spill containment equipment prior to the transfer of oil, as well as employ alternative measures if prebooming is not safe and effective.

     The new rules affect certain businesses that transfer oil in bulk to or from nonrecreational vessels. These businesses may include mobile facilities (tank truck or rail cars), marinas, small waterfront facilities, oil tank vessels, and any other entity delivering oil over waters of the state.

     Reasons Supporting Proposal: The legislature adopted a zero spill goal and established oil transfer requirements in RCW 88.46.160 and chapter 316, Laws of 2006. This rule making implements this legislative direction to prevent, contain, and recover spills from oil transfer operations.

     Statutory Authority for Adoption: RCW 88.46.160 and chapter 90.56 RCW and chapter 316, Laws of 2006.

     Statute Being Implemented: RCW 88.46.160 and chapter 90.56 RCW and chapter 316, Laws of 2006 (which adds new sections to chapter 88.46 RCW).

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of ecology, spill prevention, preparedness and response program, governmental.

     Name of Agency Personnel Responsible for Drafting: Jason Reichert, Department of Ecology, 300 Desmond Drive, Lacey, WA 98503, (360) 407-7390; Implementation and Enforcement: Dale Jensen, Department of Ecology, 300 Desmond Drive, Lacey, WA 98503, (360) 407-7450.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

     Executive Summary: The spill prevention, preparedness and response program of the Washington state department of ecology is proposing revisions to the rules governing oil transfer operations that occur over state waters. The proposed rule changes will create standards for safe oil transfer operations as a strategy to meet a zero spill goal established by the Washington state legislature. The rules proposed in chapters 173-180 and 317-40 WAC introduce new oil transfer standards that focus on (1) preventing spills first and foremost, (2) the spread of product in the event of a spill, and (3) standardizing the response capability of the delivering facility or vessel in the event of a spill.

     Since the proposed rules will impose more than minor costs on businesses, a small business economic impact statement (SBEIS) is required by law (RCW 19.85.030). This study has been developed to analyze the compliance costs of the proposed rule to small and large businesses, in order to determine whether small businesses will bear a disproportionate share of these costs.

     The analysis in this SBEIS compares the cost of compliance per employee between large and small businesses that are involved in over-the-water oil transfers. Based on the number of employees, five oil refineries classified as Class 1 facilities provide a cost basis for the analysis. The number of employees in each of these operations is over 300. Establishments within Class 2, Class 3, and Class 4 facilities make up the small business category, with an average employment of about eight employees.

     The average annual statewide compliance costs for the five largest companies is close to $6 million, with a cost per employee of $3,520. The compliance cost per employee for small businesses is $1,188, or about 34% of the per employee cost of refineries. Therefore, since the potential compliance cost per employee in the small facilities is 66% less than those in the five large refineries, the impact of the proposed rule is not likely to impose a disproportionate burden on small businesses compared to large companies.

Section I Introduction

     Background: The spill prevention, preparedness and response program of the Washington state department of ecology (DOE) is proposing revisions to the rules governing oil transfer operations that occur over state waters. The proposed rule changes will create standards for safe oil transfer operations as a strategy to meet a zero spill goal established by the Washington state legislature. Since the proposed rules will impose more than minor costs on businesses, an SBEIS is required by law (RCW 19.85.030). This study has been developed to analyze the compliance costs of the proposed rule to small and large businesses, in order to determine whether small businesses will bear a disproportionate share of these costs.

     Objective of the SBEIS: The objective of the SBEIS, as established in RCW 19.85.040, is to identify and evaluate the various requirements and costs that the rule might impose on businesses. In particular, the purpose is to determine whether a disproportionate impact of the compliance costs is borne by the state's small businesses. The legislative purpose of the Regulatory Fairness Act (chapter 19.85 RCW) is set out in RCW 19.85.011:

     "The legislature finds that administrative rules adopted by state agencies can have a disproportionate impact on the state's small businesses because of the size of those businesses. This disproportionate impact reduces competition, innovation, employment, and new employment opportunities, and threatens the very existence of some small businesses. The legislature therefore enacts the Regulatory Fairness Act with the intent of reducing the disproportionate impact of state administrative rules on small business."

     The specific purpose of the SBEIS is identified in RCW 19.85.040:

     "A small business economic impact statement must include [1] a brief description of the reporting, recordkeeping, and other compliance requirements of the proposed rule, and [2] the kinds of professional services that a small business is likely to need in order to comply with such requirements. [3] It shall analyze the costs of compliance for businesses required to comply with the proposed rule adopted pursuant to RCW 34.05.320, including costs of equipment, supplies, labor, and increased administrative costs. [4] It shall consider, based on input received, whether compliance with the rule will cause businesses to lose sales or revenue. [5] To determine whether the proposed rule will have a disproportionate impact on small businesses, the impact statement must compare the cost of compliance for small business with the cost of compliance for the ten percent of businesses that are the largest businesses required to comply with the proposed rules using one or more of the following as a basis for comparing costs:

          (a) Cost per employee;

          (b) Cost per hour of labor; or

          (c) Cost per one hundred dollars of sales.

     (2) A small business economic impact statement must also include:

     (a) [6] A statement of the steps taken by the agency to reduce the costs of the rule on small businesses as required by RCW 19.85.030(3), or reasonable justification for not doing so, addressing the options listed in RCW 19.85.030(3);

     (b) [7] A description of how the agency will involve small businesses in the development of the rule; and

     (c) [8] A list of industries that will be required to comply with the rule. However, this subsection (2)(c) shall not be construed to preclude application of the rule to any business or industry to which it would otherwise apply."

     For purposes of the SBEIS, the terms "business," "small business," and "industry" are defined by RCW 19.85.020:

     (1) "Small business" means any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, and that has fifty or fewer employees.

     (2) "Small business economic impact statement" means a statement meeting the requirements of RCW 19.85.040 prepared by a state agency pursuant to RCW 19.85.030.

     (3) "Industry" means all of the businesses in this state in any one four-digit standard industrial classification as published by the United States department of commerce.

     Summary of Proposed Rule Changes: The proposed rule changes will affect both facilities and vessels that transfer oil over navigable waters of Washington state. Costs of compliance will vary for each of five different affected business types: Facilities, marine fueling terminals, mobile facilities, marine fuel outlets, and vessels. Most of these sectors are currently complying with federal regulations enforced by the United States Coast Guard, and with existing state regulations. The federal regulations (46 U.S. Code) were strengthened by the Oil Pollution Act of 1990 requiring greater numbers of personnel for oil transfers, and 33 Code of Federal Regulations (C.F.R.) requiring more and stronger steps be taken to prevent oil spills by commercial handlers and shippers of oil products. Parts 154, 155, and 156 of 33 C.F.R. apply to vessels and facilities that conduct bulk oil or hazardous material transfers. These rules provide flexibility for the Coast Guard captain of the port to impose additional requirements depending on port-specific needs. These regulations define the standards for safe oil transfer that include topics such as transfer procedures, emergency shutdown, transfer restrictions, communication, watch-standers, recordkeeping, personnel qualifications, advance notice of transfers, and transfer containment and response standards.

     In general, all oil transfers that will occur at greater than five hundred gallons per minute (gpm) are termed Rate A transfers, while lower speed transfers are termed Rate B. For all Rate A transfers, prebooming will newly be required as long as it is both safe and effective to do so. This will include a majority of the transfers at Class 1 facilities and most vessel to vessel transfers. If it is not safe and effective to do so, different vessel and facility classes will need to be ready to deploy boom in the event of a spill, and are required to have additional boom available and on the scene within one hour. In all cases, personnel conducting transfers will need to have appropriate training in oil transfer safety, hold pretransfer conferences, and ensure that loading procedures and adequate communication between vessel and facility is established prior to and during a transfer. Furthermore, Rate A deliverers must develop and submit for approval to ecology the threshold environmental determining factors at each location. This threshold analysis will be used to determine whether or not it is safe and effective to preboom.

     Rate B transferors will need to either comply with the prebooming as described in the new regulation, or with the alternative measures outlined therein. In general, the alternative measures involve having boom available to be deployed, and all equipment needed to deploy and clean up a spill if one occurs.

     All affected parties will also have the option to develop their own alternatives to compliance with regard to the alternative measures used when prebooming is not safe and effective. A plan for alternative compliance may be submitted to DOE for approval if it is either impractical or economically infeasible to comply with the regulations as is.

     Industries Required to Comply: The only industries to which these rules will apply are those involved in over-the-water oil transfers. The rule proposed for facilities in chapter 173-180 WAC categorizes facilities engaged in over-the-water transfers into four classes. Table 1 identifies these classes and provides brief descriptions of the kinds of industries that comprise each class. A brief description of firms affected by the proposed vessel rule (chapter 317-40 WAC) is also shown in the table.

     Contents of the Document: The proposed oil transfer rules developed through this rule-making process are evaluated further in the following sections as required in chapter 19.85 RCW. Section II discusses the compliance costs for businesses in Washington. The section provides [1] a brief description of the reporting, record keeping, and other compliance requirements, [2] the kinds of professional services that a small business is likely to need in order to comply, [3] the costs of compliance for businesses required to comply with the proposed rules, including costs of equipment, supplies, labor, and increased administrative costs, and [4] whether compliance with the rules will cause businesses to lose sales or revenue. Section III evaluates [5] whether the proposed rules will have a disproportionate impact on small businesses. Section IV considers [6] actions taken to reduce the impact of the rules on small businesses, [7] how small businesses were involved in the development of these rules, and provides [8] a list of industries required to comply with the rules.

Section II Compliance Costs for Washington Businesses

     The majority of costs associated with the proposed regulations will be borne by the largest firms, those that operate oil refineries within the state (Class 1 "Refineries"). In most cases (but not all), the initial costs are associated with establishing a full-circle permanent boom at the dock that can be operated on a regular basis. Costs include such associated items as boats to maintain the boom, dock lighting, and other equipment. The boom operation will also incur additional costs to these companies due to the labor required to conduct prebooming. In subsequent years, this extra labor plus equipment maintenance comprise the majority of additional costs.

     Nonrefinery facilities within Class 1 include large industrial plants such as fuel distributors, and some marine fueling terminals that receive fuels via pipelines. These facilities are expected to respond to the regulations in one of three ways depending on a variety of factors. The first way to respond is to reduce the pumping rate below five hundred gallons per minute which would avoid the requirement to preboom. This action would require the facility to provide response containment and recovery equipment and the personnel in-house at the facility in case of a spill. The next way is to provide prebooming equipment and personnel in-house at the facility. The last expected way to respond is to contract an oil spill response organization (OSRO). If an OSRO is used, it is assumed that a typical transfer would cost approximately $2,500 on average for the services of the OSRO to preboom.

     Mobile tank trucks (Class 2 facilities) are expected to pool resources and share the costs of equipment purchases, so that boom will be available at docks where mobile trucks fuel ships. Some firms are expected to comply via in-house provision of a "runner" truck that will carry boom to the transfer dock, and have the driver of the runner truck be trained to meet the new requirements. The latter is a more expensive option.

     Facilities that meet Class 3 standards are expected to experience additional costs associated with either prebooming or having boom readily available. These facilities provide fueling services to fishing vessels and other smaller commercial vessels. There are four firms identified so far in this category in the state of Washington. Class 4 facilities are the many marinas that typically fuel recreational vessels and some smaller commercial and public boats.

     The primary compliance costs of the vessel regulation are associated with prebooming during vessel to vessel bunkering and lightering operations. Compliance costs to tugs and barges that transport oil products to and from terminals and refineries are primarily covered in part through the costs estimated for facilities, as most transfers in this industry are between a facility and a tank barge or tank ship. It is assumed that a firm that conducts a large number of bunkering operations at sea will provide compliance in-house at a significant cost. However, most firms that bunker or lighter infrequently are expected to comply with the new regulations via the assistance of an OSRO.

     In accordance with chapter 19.85 RCW, a discussion of required cost categories is provided below:

     Reporting and Recordkeeping: The additional recordkeeping/reporting rules are not expected to incur additional costs to facility or vessel businesses.

     Additional Professional Services: Some businesses that will be required to preboom all transfers will contract firms that specialize in oil spill recovery and response (OSRO) for compliance. OSROs perform all necessary measures for a business to be in compliance during a transfer.

     Compliance Costs: All facility and vessel businesses are expected to incur new costs in equipment compliance. Some facilities, except Class 4 facilities, may require additional employees to operate in compliance. Additional labor represents the greatest cost for all facility and vessel businesses. No additional administrative costs are anticipated for any facility or vessel business.

     Loss of Revenues: It is possible that several types of businesses could lose sales as result of the regulation. For example, within the Class 2 and Class 3 sectors, fueling may become more desirable in other locations such as Oregon or Canada. Also, these facilities service the resident fishing boat fleet in Puget Sound. Typically, these fishing vessels are all small family businesses and are already vulnerable to a great deal of economic variability due to the uncertainty in fish populations and weather.

     The vessel to vessel bunkering industry may also lose revenue if container ships and others elect to refuel in other states or countries rather than pay the additional costs. In the Columbia River, it is quite possible that Oregon water bunkers will be preferred to Washington waters not only due to additional costs, but additional time associated with prebooming. In Puget Sound, many of the large ships have fuel capacities such that they may opt to refuel in Asia as opposed to paying additional costs.

     Average costs for each sector described are presented in Table 2 below.

Table 2 Summary of Expected Costs to State of Washington from Proposed Oil Transfer Regulations
Affected Group	Number in State	Average Annual Cost per Firm (over 20 years in 2006 dollars)	Average Annual Statewide Costs (over 20 years in 2006 dollars)
Class 1 Facilities Refineries	5	$1,196,892	$5,984,461
Class 1 Facilities Other Large Facilities	12	$79,187	$950,240
Class 2 Facilities (Mobile Tank Trucks)	35	$29,423	$1,029,821
Class 3 Facilities (Marine Fueling Terminals)	3	$72,204	$216,612
Class 4 Facilities (Marine Fueling Outlets)	50-200	$2,079	$259,830
Vessels	5*	$297,291	$1,486,454
*Other companies operating vessels may be affected by the new regulations, but compliance costs are anticipated to occur at the facilities where these vessels conduct transfers. Therefore, just five companies are included in this analysis.

Section III Analysis of Proportionate Impact on Small Businesses

     An analysis of proportionate impact is based on the costs of compliance relative to the number of employees at the facility. The largest businesses affected by the oil transfer rules are the five Class 1 oil refineries. These refineries each employ an average of three-hundred employees. The same companies representing the refineries also own some of the other Class 1 nonrefinery facilities, and the rest of the firms in this sector are also expected to be large firms. Four of the five vessel companies are also expected to be large firms, employing more than fifty people each.

     Firms within Class 2, Class 3, and Class 4 make up the small business category. The mean number of employees among all small operations is eight. Within the Class 2 facilities, one quarter, or nine of the thirty-five firms are assumed to be integrated with large companies, and so just twenty-six firms are included in the analysis. Among the vessel companies, one is a small business and included.

     Table 3 presents the average cost per employee for the large refineries and other small businesses involved in over the water oil transfers. The average annual statewide compliance costs for the five largest companies is close to $6 million, with a cost per employee of $3,520. The compliance cost per employee for small businesses is $1,188, about 34% of the per employee cost for refineries.

Section IV Small Business Involvement and Impact Reduction Efforts

     Actions Taken to Reduce the Impact of the Rule on Small Businesses: By separating facilities into four classes with different regulations, the structure of the proposed rules reduces impacts on small businesses. The rules use a scaled, risk-based prevention and response approach that sets standards on those facilities and vessels with a higher risk of transfer spills. Additionally, the rules incorporate flexibility to reduce the cost of compliance for smaller businesses; some requirements are only applicable if the facility is doing a larger volume Rate A transfer, and do not apply during Rate B transfers. During Rate B transfers, smaller facilities do not have to preboom, and have lower equipment and response capability requirements. Additional flexibility is incorporated into the proposed regulations as facilities have the option to submit an alternative plan to DOE, enabling them to achieve the objectives of the rules through other means.

     Involvement of Small Business in the Development of the Proposed Rules: During the development of the transfer rules, DOE communicated regularly with affected small businesses. Electronic correspondence with interested parties was established early in the rule development process in order to maintain communication. DOE remained in regular contact with Class 3 facilities owners, and met individually with several of these businesses. Through the process, Class 4 facilities were informed about the proposed regulations and were given the opportunity to comment on these. Additionally, representatives of small businesses as well as business owners themselves were members of the oil transfer rule advisory committee that provided input into the development of the rules.

     A copy of the statement may be obtained by contacting Washington State Department of Ecology, Attn: Jason Reichert, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-7390, fax (360) 407-7288, e-mail oiltransferrule@ecy.wa.gov.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Washington State Department of Ecology, Attn: Jason Reichert, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-7390, fax (360) 407-7288, e-mail oiltransferrule@ecy.wa.gov.

June 6, 2006

Polly Zehm

Deputy Director

OTS-8875.3

     (3) Requiring vessel owners and operators to adopt company policies that improve the safety of bunkering.)) (1) Except as provided in subsection (2) of this section, this chapter applies to the following bulk oil transfers occurring on or over waters of the state. Any bulk oil transfer to or from a:

     (a) Tank vessel;

     (b) Cargo vessel;

     (c) Passenger vessel;

     (d) Facility; or

     (e) A lightering operation (WAC 317-40-110 only).

     (2) This chapter does not apply to:

     (a) An oil spill recovery vessel that is engaged in spill response activities;

     (b) A vessel's internal oil transfers.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-010, filed 7/29/94, effective 10/29/94.]

     (a) Using a scaled approach that sets standards for safe oil transfer operations to protect people and the environment;

     (b) The importance of proper procedures, communication, and monitoring before, during and after oil transfer operations;

     (c) That the duties of each person involved in an oil transfer operation are clearly defined; and

     (d) It is the vessel owners and operators obligation to adopt company policies that improve the safety of oil transfer operations.

     (2) The purpose of this chapter is to implement chapter 88.46 RCW Vessel oil spill prevention and response to regulate the transfer of oil on or over waters of the state.

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     (2) The owner or operator of a vessel must allow ecology on board the vessel for the purposes of ensuring compliance with the oil transfer operation requirements of this chapter.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-020, filed 7/29/94, effective 10/29/94.]

     (1) "Boom" means flotation boom or other effective barrier containment material suitable for containment of oil that is discharged onto the surface of the water.

     (2) "Bulk" means material that is stored or transported in a loose, unpackaged liquid, powder, or granular form capable of being conveyed by a pipe, bucket, chute, or belt system.

     (3) "Bunkering" means a bulk oil transfer operation to replenish a self-propelled covered vessel with fuel or lubricating oil.

     (4) "Cargo vessel" means a self-propelled ship in commerce, other than a tank vessel or a passenger vessel, three hundred gross tons or more, including, but not limited to, commercial fish processing vessels and freighters.

     (5) "Covered vessel" means a tank vessel, cargo vessel, or passenger vessel.

     (6) "Director" means the director of the department of ecology.

     (7) "Discharge" means any spilling, leaking, pumping, pouring, emitting, emptying, or dumping regardless of quantity.

     (8) "Ecology" means the department of ecology.

     (9) "Facility" means:

     (a) Any structure, group of structures, equipment, pipeline, or device, other than a vessel, located on or near the navigable waters of the state that both:

     (i) Transfers oil in bulk to or from a tank vessel or pipeline; and

     (ii) Is used for producing, storing, handling, transferring, processing, or transporting oil in bulk.

     (b) A facility does not include any:

     (i) Railroad car, motor vehicle, or other rolling stock while transporting oil over the highways or rail lines of this state;

     (ii) Underground storage tank regulated by ecology or a local government under chapter 90.76 RCW;

     (iii) Motor vehicle motor fuel outlet;

     (iv) Facility that is operated as part of an exempt agricultural activity as provided in RCW 82.04.330; or

     (v) Marine fuel outlet that does not dispense more than three thousand gallons of fuel to a ship that is not a tank covered vessel, in a single transaction.

     (10) "Gross ton" means a vessel's approximate volume as defined in Title 46, United States Code of Federal Regulations (CFR), Part 69.

     (11) "Innage" means the difference from the surface of the liquid to the tank bottom.

     (12) "Navigable waters of the state" means those waters of the state, and their adjoining shorelines, that are subject to the ebb and flow of the tide and/or are presently used, have been used in the past, or may be susceptible for use to transport intrastate, interstate, or foreign commerce.

     (13) "Nonrecreational vessel" means any vessel that is not a recreational vessel as defined in this section.

     (14) "Oil" or "oils" means any naturally occurring liquid hydrocarbons at atmospheric temperature and pressure coming from the earth, including condensate and natural gasoline, and any fractionation thereof, including, but not limited to, crude oil, petroleum, gasoline, fuel oil, diesel oil, oil sludge, oil refuse, and oil mixed with wastes other than dredged spoil. Oil does not include any substance listed in Table 302 adopted August 14, 1989, under section 101(4) of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by P.L. 99-499.

     (15) "Oil transfer" means a transfer of oil in bulk on or over waters of the state.

     (16) "Oil transfer procedure" means the document required under 33 CFR 155.720 that contains information required under 33 CFR 155.750 including bunkering procedures.

     (17) "Owner" or "operator" means:

     (a) In the case of a vessel, any person owning, operating, or chartering by demise, the vessel;

     (b) In the case of an onshore or offshore facility, any person owning or operating the facility; and

     (c) In the case of an abandoned vessel, onshore, or offshore facility, the person who owned or operated the vessel or facility immediately before its abandonment.

     "Operator" does not include any person who owns the land underlying a facility if the person is not involved in the operations of the facility.

     (18) "Passenger vessel" means a ship of three hundred or more gross tons with a fuel capacity of at least six thousand gallons carrying passengers for compensation.

     (19) "Person" means any political subdivision, government agency, municipality, industry, public or private corporation, co-partnership, association, firm, individual, ship, or any other entity whatsoever.

     (20) "Personnel" means individuals employed by, or under contract with a facility or vessel.

     (21) "Person in charge" or "PIC" means a person qualified and designated as required under 33 CFR 155, for vessels, 33 CFR 154 for Class 1, 2, or 3 facilities, or the person with overall responsibility for oil transfer operations if not otherwise designated.

     (22) "Proficient in English" means the ability to clearly speak the English language so personnel from other vessels and facilities understand and may safely complete an oil transfer operation.

     (23) "Recreational vessel" means a vessel operated for pleasure, which when leased, rented, or chartered to another is used for pleasure.

     (24) "Ship" means any boat, ship, vessel, barge, or other floating craft of any kind.

     (25) "Spill" means an unauthorized discharge of oil into the waters of the state.

     (26) "State" means the state of Washington.

     (27) "Tank barge" means a tank vessel without a means of self-propulsion, and a self-propelled tank vessel less than forty meters (one hundred and thirty feet) in overall length.

     (28) "Tank ship" means a self-propelled tank vessel forty or more meters in overall length.

     (29) "Tank vessel" means a ship that is constructed or adapted to carry, or that carries, oil in bulk as cargo or cargo residue, and that:

     (a) Operates on the waters of the state; or

     (b) Transfers oil in a port or place subject to the jurisdiction of this state.

     (30) "Training" means instructional materials and procedures, including, but not limited to, materials, practical exercises, and drills.

     (31) "Topping off" means the receipt of oil into the last ten percent of available tank capacity in any tank.

     (32) "Ullage" means the depth of space above the free surface of the fluid to the reference datum of that tank.

     (33) "Waters of the state" includes lakes, rivers, ponds, streams, inland waters, underground water, salt waters, estuaries, tidal flats, beaches and lands adjoining the seacoast of the state, sewers, and all other surface waters and watercourses within the jurisdiction of the state of Washington.

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     (13) "Ullage" or "outage" means the depth of space above the free surface of the fluid to the tank top.)) (1) Any person with oil transfer duties must comply with applicable provisions of federal law and regulations governing licensing, documentation, equipment, operations, and oil transfers.

     (2) The following Code of Federal Regulations (CFR) in effect on the effective date of this rule are incorporated by reference:

     (a) 33 CFR 155.310, 155.700, 155.780, 155.720, and 155.750.

     (b) 33 CFR 156.120 and 156.150.

     (c) 46 CFR Part 16.

     (3) All federal regulations incorporated in this chapter are available through the National Archive and Records Administration web site located here: http://www.gpoaccess.gov/cfr/index.html.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-030, filed 7/29/94, effective 10/29/94.]

     (2) To demonstrate compliance with this chapter, ecology may ask for the following documents, as they relate to oil transfers, to be made available for review:

     (a) Official, deck, cargo operations, and engineering logs;

     (b) Written company policies, procedures, and checklists;

     (c) Standing orders;

     (d) Preloading plans or cargo transfer plans;

     (e) Declaration of inspections (DOI);

     (f) Oil transfer procedures;

     (g) Training materials related to oil transfer operations; and

     (h) Any wind speed and direction information and swell height information if it is recorded independently of the deck log book.

     (3) Ecology may require the vessel to demonstrate the ability to meet transfer containment and recovery standards in WAC 317-40-110.

     (4) Ecology may provide a preliminary inspection report to the owner or operator at the conclusion of the inspection.

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     (2) Federal law and regulations applicable to bunkering on the effective date of these rules are hereby incorporated. Any amendment or recodification of an applicable federal law or regulation is also hereby incorporated unless expressly stated otherwise.)) (1) Records required by this rule must be maintained and made available to ecology for a minimum of three years, except for the following: Preload plans or cargo transfer plans and declaration of inspection (DOI) kept on the vessel for at least thirty days from date of the oil transfer operation.

     (2) A vessel's owner or operator must maintain, and, if requested by ecology provide records such as log book entries, maintenance records or other records required in this chapter.

     (3) All records required in this chapter must be available to ecology for photocopying upon request.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-040, filed 7/29/94, effective 10/29/94.]

     (2) Ecology may:

     (a) Issue an administrative order that may require immediate suspension of oil transfer operations;

     (b) Specify each condition requiring immediate action to eliminate the condition; and

     (c) Notify the PICs that oil transfers may resume once ecology is satisfied the threat has been addressed.

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     (b) The person in charge shall ensure that bunkering personnel know and use English phrases and hand signals to communicate the following instructions during bunkering: "stop," "hold," "okay," "wait," "fast," "slow," and "finish.")) (1) Personnel involved with the oil transfer must immediately stop an oil transfer operation whenever oil could originate from the current oil transfer operation and is:

     (a) Observed in the water or on the shoreline adjoining the transfer area;

     (b) Discharged into oil spill containment or on the deck; or

     (c) Spilled into the water or onto the shoreline adjoining the transfer area.

     (2) The deliverer must immediately stop the oil transfer at the request of any person on the receiving vessel.

     (3) The PICs must make notifications as required in RCW 90.56.280.

     (4) Before the oil transfer operation may resume:

     (a) The source of the spill is controlled, contained, and a proper response is underway;

     (b) The PICs must agree there is no significant threat to waters of the state or public health; and

     (c) The PICs must receive approval from the state on-scene coordinator in coordination with the federal on-scene coordinator.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-050, filed 7/29/94, effective 10/29/94.]

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     Lacey, WA 98503

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-060, filed 7/29/94, effective 10/29/94.]

     (2) The delivering vessel's personnel shall immediately activate the emergency shutdown device at the request of any person on the receiving vessel.)) Owners and operators of vessels conducting oil transfer operations must ensure that the requirements in this chapter are implemented and followed.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-065, filed 7/29/94, effective 10/29/94.]

     (4) If the delivering vessel's person-in-charge is not satisfied with the receiving vessel's representative's English proficiency, he or she shall request an interpreter.)) If any provision of this chapter is held invalid, the remainder of the chapter is not affected.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-070, filed 7/29/94, effective 10/29/94.]

     (2) Owners and operators shall ensure that records are kept as required by this chapter and federal regulations.)) (1) The delivering vessel involved in an oil transfer must notify ecology at least twenty-four hours prior to an oil transfer operation; except: If the delivering vessel cannot meet the notification requirements of this subsection, notice must be provided as soon as possible.

     (2) The notice of transfer must be submitted to ecology on the Advanced Notice of Transfer form provided by ecology or a facsimile, and must contain the following information in the order provided:

     (a) Company name, address, contact person and telephone number of organization delivering the oil;

     (b) Date of transfer operation, estimated starting time, and duration of the oil transfer operation;

     (c) Name of delivering vessel and receiving vessel or facility involved in the oil transfer, including LR/IMO or official number if available;

     (d) City name and either the address or location/anchorage where the oil transfer operation will occur;

     (e) Oil product type and quantity in gallons; and

     (f) Whether or not prebooming will take place? (yes or no).

     (3) Notification may be made by the delivering vessel's agent or other contracted representative.

     (4) The notification form may be submitted via internet web site established by ecology, e-mail, or facsimile. The notification form and contact information is found on ecology's web site here:

     http://www.ecy.wa.gov/programs/spills/spills.html.

     (5) Compliance schedule: All delivering vessels must begin submitting advance notice within thirty calendar days of the effective date of this chapter.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-100, filed 7/29/94, effective 10/29/94.]

     (c) Within two hours of being made aware of a spill, the deliverer must have an additional five hundred feet of boom available for containment, protection, or recovery.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-110, filed 7/29/94, effective 10/29/94.]

     (2) If the delivering vessel determines that the ladder is inaccessible or unsafe, another means of access must be provided that meets the standards established in the International Convention for the Safety of Life at Sea, 1974, as consolidated in 1986 (SOLAS).

     (3) If the vessel master or PIC determines access is not safe due to winds, sea state, currents or other environmental conditions, the master or PIC may allow communication by radio or other means described in WAC 317-40-140.

     (4) The entire ladder and the portion of the ship's deck where access is provided must be illuminated during low light situations and without glare to the persons using the ladder.

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     (b) The persons in charge determine that there is no threat of subsequent oil spills.)) (1) Before the start of an oil transfer operation, the PICs must hold a face to face pretransfer conference unless the receiving vessel's master/officer-in-charge determines it is unsafe under WAC 317-40-120. If it is determined unsafe to board the vessel, the conference may take place via phone or VHF radio.

     (2) The PICs must discuss and agree upon:

     (a) The preloading or cargo plan;

     (b) The contents of the declaration of inspection (DOI) required under 33 CFR 156.150;

     (c) Procedures for communicating soundings, changing over tanks, and beginning topping off;

     (d) Shift change procedures;

     (e) Emergency shutdown procedures and identify all means to shut down the oil transfer operation in an emergency; and

     (f) Expected weather and/or sea conditions and threshold values for weather and sea conditions above which oil transfer operations must cease.

     (3) The receiving vessel PIC, if taking bunkers, must identify the point-of-transfer watch and deck-rover watch to the delivering PIC.

     (4) An oil transfer will not begin unless a person proficient in both English and a language common to the vessel's officers and crew is present at the pretransfer conference.

     (a) If the vessel or facility PIC is not satisfied with the vessel representative's English proficiency, he or she must request an interpreter.

     (b) If requested by ecology, the U.S. Coast Guard, the delivering vessel, or the facility, the owner or operator of the receiving vessel must provide an interpreter proficient in English and a language common to the officers and crew.

     (5) The master/officer-in-charge or his designee must record in the vessel's deck log immediately upon completion, the date and time of the pretransfer conference.

     If the receiving vessel is not in service and does not have a deck watchstander on duty, the PIC may alternatively enter the required information in the engine room log.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-130, filed 7/29/94, effective 10/29/94.]

     (3) The PICs must ensure personnel involved in the oil transfer know and use English phrases and hand signals to communicate the following instructions during the oil transfer: "Stop," "hold," "wait," "fast," "slow," and "finish."

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-140, filed 7/29/94, effective 10/29/94.]

     (4) Take other appropriate actions to address the violation.)) (1) All oil transfer operations must be supervised by a PIC designated in writing by the owner or operator.

     (2) A receiving vessel's oil transfer procedures (OTPs) must have, in addition to the information required under 33 CFR 155.720, the following:

     (a) Each person assigned oil transfer duties must be equipped with two-way communications to communicate with the PIC's and the covered vessel's master or officer-in-charge.

     (b) If the deck-rover or point-of-transfer watch identifies a spill or a threat of a spill, he/she must report it to the PIC immediately.

     (c) Except for the deck-rover watch, personnel assigned oil transfer responsibilities must perform only those duties assigned while the oil transfer is underway, and that all personnel assigned to oil transfer duties remain at their workstations during topping off.

     (3) The receiving vessel PIC must notify the delivering PIC immediately before topping off begins and confirm the transfer rate.

     (4) When a PIC is relieved, he or she must:

     (a) Discuss the preloading or cargo transfer plan and the transfer status with the relieving PIC;

     (b) Notify the PIC at the other side of the transfer that relief is taking place; and

     (c) Ensure the relieving PIC reads and signs the DOI.

     (5) All vessels participating in oil transfer operations must have procedures for oil transfer operations during inclement weather or sea conditions.

     (a) Vessels transferring at a facility must follow the facility's weather threshold values.

     (b) These procedures must be located where personnel involved in the oil transfer operation can access it.

     (c) These procedures must include, at a minimum:

     (i) Requirements for monitoring weather and sea conditions and forecasts;

     (ii) Requirements for communicating weather and sea forecasts or conditions to the PICs at regular intervals, if PICs cannot monitor these themselves;

     (iii) Threshold values for weather and sea conditions above which oil transfer operations must cease;

     (iv) Requirements for monitoring the vessel's mooring, transfer hoses, or piping for unusual or unexpected strain caused by weather and sea conditions;

     (v) Requirements for staffing the tank ship's engineering space such that the tank ship's engines are on standby and ready for immediate maneuvering in cases where the conditions described in (c)(iii) of this subsection are experienced; and

     (vi) Requirements for the delivering vessel to cease oil transfer operations or attempt to secure the services of an appropriately sized tug when the threshold values in (c)(iii) of this subsection are experienced.

[Statutory Authority: RCW 88.46.170 and 43.21I.030. 94-16-076, § 317-40-150, filed 7/29/94, effective 10/29/94.]

     (2) The receiving PIC must frequently sound the tanks during loading to verify transfer rates, tank levels, and to ensure tank volumes do not change once tanks are no longer actively filled.

     (3) During start-up, steady state pumping, and topping off, both PICs must estimate and verify the transfer rate at least hourly to determine the transfer rate conforms to the agreed upon rate in the preload or cargo plan.

     (4) The receiving PIC must notify the deliverer if the transfer rate is unacceptable and the deliverer must adjust as necessary.

     (5) When a shift change occurs for any PIC, the relieving PIC must verify the current transfer rate and the status of all tanks involved in the transfer operation.

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     (1) The tankerman meets the certification requirements under 46 CFR Part 13 and has undergone annual training to become familiar with the requirements of this chapter;

     (2) The vessel(s) and facilities involved in the oil transfer meet the appropriate requirements in this chapter;

     (3) A declaration of inspection (DOI) was discussed during the pretransfer conference and signed by both PICs as required under 33 CFR 156.120; and

     (4) The receiving vessel's PIC has discussed procedures for informing the delivering vessel's PIC before changing over tanks and beginning topping off.

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     (1) Except for a receiving vessel subject to WAC 317-40-230 Intrastate operation, a receiving vessel's PIC must conduct a training session for all personnel with duties under the vessel's oil transfer procedures within forty-eight hours before a vessel's scheduled oil transfer operation.

     (2) If the oil transfer operation is postponed and the training is no longer within forty-eight hours, the pretransfer training must be conducted again, so that it is within forty-eight hours before the oil transfer can begin.

     (3) The PIC must conduct training in a language common to both the PIC and personnel being trained.

     (4) The training must include, but is not limited to, a review of the:

     (a) Vessel's preloading or cargo transfer plan as described in this chapter, as applicable;

     (b) Chief mate/first officer's cargo orders, as applicable;

     (c) Civil and criminal penalties and liabilities for not complying with federal and state regulations, and for spilling oil in Washington waters;

     (d) Vessel's oil transfer procedures, including each person's responsibilities and station;

     (e) English phrases and hand signals to communicate the instructions listed in WAC 317-40-140(3); and

     (f) Emergency shutdown procedures described in 33 CFR 155.780.

     (5) If relief personnel are assigned to oil transfer duties, and did not attend the pretransfer training session, the PIC must train them in these duties before they assume oil transfer responsibilities.

     (6) The master/officer-in-charge or his designee must record in the vessel's deck log immediately upon completion of any pretransfer training sessions, the date and time of the training session and the name and rating of who attended.

     If the receiving vessel is not in service and does not have a deck-rover watch on duty, the PIC may alternatively enter the required information in the engine room log.

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     (1) Identification, location and capacity of the vessel's tanks receiving oil;

     (2) Level and type of liquid in all bunker tanks prior to the oil transfer;

     (3) Final ullage or innage, and percent of each tank to be filled;

     (4) Sequence in which the tanks are to be filled; and

     (5) Procedures to regularly monitor all tank levels and valve alignments during the transfer operation.

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     (2) The receiving vessel's owner or operator must submit a written schedule of the vessel's typical operations to ecology stating:

     (a) The vessel's name, call sign, and official number;

     (b) The routes served by the vessel;

     (c) The number of bunkering operations performed in any thirty days; and

     (d) The location and time of bunkering operations.

     (3) The receiving vessel's owner or operator must notify ecology as soon as possible when making a change in the vessel's typical operations.

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     (2) Each watch must be equipped with two-way communications to communicate with the person in charge and vessel master or officer in charge.

     (a) The point-of-transfer watch must remain at the point of connection during the oil transfer operation.

     (b) The primary duty of the deck-rover watch must be to monitor for oil spills on deck or over the side during the oil transfer operation. The deck-rover watch may also perform other duties not in conflict with his or her primary duty. The deck-rover watch must:

     (i) Visually inspect the deck, water, and each tank's sounding tube and vent, if accessible;

     (ii) Remain in a position during changing over of tanks or topping off to observe if any spillage on deck or in the water occurs; and

     (iii) Inspect the mooring lines and fendering equipment.

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     (2) Environmental conditions for bunkering operations at the transfer location:

     (a) Winds:

     (i) When wind speeds remain at thirty knots or greater for longer than five minutes, the deliverer must log the wind speed and direction in thirty minute intervals during oil transfer operations.

     (ii) If during an oil transfer operation winds of forty knots or more for a period of five minutes or more occur, the deliverer must stop pumping and the hoses or piping must be drained and disconnected.

     (b) Wave height or sea state:

     (i) Oil transfers involving an oil barge and a ship must not begin if the combination of wave and swell height is six feet or greater.

     (ii) Oil transfers at regulated facilities must follow the weather criteria in the facilities operations manual and discussed in the pretransfer conference required in this chapter.

     (c) Current velocity: If current velocity is predicted or expected to exceed three knots the PICs must discuss and establish ground tackle and mooring line arrangement to handle anticipated line loads and discuss tending arrangements.

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     (1) Identification, location and capacity of the vessel's tanks receiving or discharging cargo;

     (2) Level and type of liquid in all cargo tanks prior to the oil transfer;

     (3) Final ullage or innage, and percent of each tank to be filled;

     (4) Sequence in which the tanks are to be loaded or discharged;

     (5) Procedures to regularly monitor all tank levels and valve alignments;

     (6) When in the transfer to slow transfer rate for topping off; and

     (7) When discharging, document the proper inert gas pressure and percent O₂.

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OTS-8862.3

     (1) Class 1 facilities (as defined in WAC 173-180-025(7)).

     (2) Class 2 facilities (as defined in WAC 173-180-025 (8)).

     (3) Class 3 facilities (as defined in WAC 173-180-025 (9)).

     (4) Class 4 facilities (as defined in WAC 173-180-025 (10)).

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     (1) Using a scaled approach to protect people and the environment;

     (2) Preventing oil spills from occurring and emphasizing that oil spill prevention is the top priority strategy for reaching the legislature's goal of zero spills;

     (3) Providing improved protection of Washington waters and natural resources from the impacts of oil spills caused by operational errors, human errors, improper oil-handling equipment design and operations;

     (4) Minimizing the size and impacts of those oil spills which do occur; and

     (5) Facilitating coordination of local, state, regional, tribal, and other prevention and contingency plans.

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     (1) RCW 88.46.160 provides statutory authority for regulating the transfer of oil on or over waters of the state.

     (2) RCW 90.56.220 provides statutory authority for developing operations and design standards and implementing a compliance program established by this chapter.

     (3) RCW 90.56.230 provides statutory authority for operations manual preparation and review requirements established by this chapter.

     (4) RCW 90.56.220 provides statutory authority for the personnel training and certification requirements established by this chapter.

     (5) RCW 90.56.200, 90.56.300 and 90.56.310 provide statutory authority for the prevention plan preparation and review requirements established by this chapter.

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     (2) "Best achievable technology" means the technology that provides the greatest degree of protection taking into consideration: Processes that are being developed, or could feasibly be developed, given overall reasonable expenditures on research and development; and processes that are currently in use. In determining what best achievable technology is, the director must consider the effectiveness, engineering feasibility, and commercial availability of the technology.

     (3) "Boom" means flotation boom or other effective barrier containment material suitable for containment of oil discharged onto the surface of the water.

     (4) "Bulk" means material that is stored or transported in a loose, unpackaged liquid, powder, or granular form capable of being conveyed by a pipe, bucket, chute, or belt system.

     (5) "Cargo vessel" means a self-propelled ship in commerce, other than a tank vessel or a passenger vessel, greater than three hundred or more gross tons, including but not limited to, commercial fish processing vessels and freighters.

     (6) "Certification" means the documentation that a facility employee has met all requirements of an oil transfer training and certification program that meets the requirements of this chapter.

     (7) "Class 1 facility" means a facility as defined in RCW 90.56.010 as:

     (a) Any structure, group of structures, equipment, pipeline, or device, other than a vessel, located on or near the navigable waters of the state that transfers oil in bulk to or from a tank vessel or pipeline, that is used for producing, storing, handling, transferring, processing, or transporting oil in bulk.

     (b) A facility does not include any:

     (i) Railroad car, motor vehicle, or other rolling stock while transporting oil over the highways or rail lines of this state;

     (ii) Underground storage tank regulated by ecology or a local government under chapter 90.76 RCW;

     (iii) Motor vehicle motor fuel outlet;

     (iv) Facility that is operated as part of an exempt agricultural activity as provided in RCW 82.04.330; or

     (v) Marine fuel outlet that does not dispense more than three thousand gallons of fuel to a ship that is not a covered vessel, in a single transaction.

     (8) "Class 2 facility" means a facility as defined in RCW 90.56.010 and is rolling stock such as a truck, railcar, or other mobile device used to transfer oil to a nonrecreational vessel.

     (9) "Class 3 facility" means a facility that:

     (a) Transfers to a nonrecreational vessel with a capacity to hold ten thousand five hundred or more gallons of oil whether the vessel's oil capacity is used for fuel, lubrication oil, bilge waste, or slops or other waste oils;

     (b) Does not transfer oil in bulk to or from a tank vessel or pipeline; and

     (c) Does not include any: Railroad car, motor vehicle, or other rolling stock while transporting oil over the highways or rail lines of this state; underground storage tank regulated by ecology or a local government under chapter 90.76 RCW; or a motor vehicle motor fuel outlet; a facility that is operated as part of an exempt agricultural activity as provided in RCW 82.04.330.

     (10) "Class 4 facility" or "marine fueling outlet" means a facility that:

     (a) Transfe