37444 Federal Register / Vol. 83, No. 148 / Wednesday, August 1, 2018 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 302 and 355 

[EPA–HQ–OLEM–2018–0518; FRL–9981– 

52–OLEM] 

RIN 2050–AG66 

Vacatur Response—CERCLA/EPCRA 

Administrative Reporting Exemption 

for Air Releases of Hazardous 

Substances From Animal Waste at 

Farms; FARM Act Amendments to 

CERCLA Release Notification 

Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is removing regulatory 

provisions associated with the 

administrative reporting exemption 

under the Comprehensive 

Environmental Response, Compensation 

and Liability Act (CERCLA) of 1980, as 

amended, and under the Emergency 

Planning and Community Right-toKnow Act (EPCRA) of 1986. These 

revisions implement the vacatur of the 

CERCLA and EPCRA administrative 

reporting exemption regulations ordered 

by the United States Court of Appeals 

for the District of Columbia Circuit (D.C. 

Circuit). This rule also incorporates 

CERCLA revisions enacted by the Fair 

Agricultural Reporting Method (FARM) 

Act. 

DATES: This final rule is effective on 

August 1, 2018. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OLEM–2018–0518. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the EPA Docket Center, EPA/DC, WJC 

West Building, Room 3334, 1301 

Constitution Ave. NW, Washington, DC. 

The Public Reading Room is open from 

8:30 a.m. to 4:30 p.m. Monday through 

Friday, excluding Federal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744. For 

more information on EPA’s Docket 

Center Reading Room, see https://

www.epa.gov/dockets/epa-docketcenter-reading-room. 

FOR FURTHER INFORMATION CONTACT: 

Office of Emergency Management, mail 

code 5104A, Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW, 

Washington, DC 20460, Alison Kent 

(202) 564–7645, kent.alison@epa.gov or 

Sicy Jacob (202) 564–8019, jacob.sicy@

epa.gov; or contact the EPCRA, RMP & 

Oil Information Center toll free at 1– 

800–424–9346 or (703) 348–5070 in the 

Washington, DC area. The call center 

operates from 10:00 a.m. to 5:00 p.m. 

EST Monday through Friday, excluding 

Federal holidays. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

A list of entities that could be affected 

by this final rule include, but are not 

necessarily limited to: 

NAICS Description NAICS Code Examples of potentially affected entities 

Crop Production .......................................................................... 111 Facilities that manage crop production. 

Animal Production and Aquaculture ........................................... 112 Facilities that manage animal production and aquaculture. 

This table is not intended to be 

exhaustive, but rather provide a guide 

for readers regarding the types of 

entities that EPA is aware could be 

involved in the activities affected by 

this action. However, other types of 

entities not listed in this table could be 

affected by this final rule. To determine 

whether your entity is affected by this 

action, you should carefully examine 

the applicability criteria found in title 

40 of the Code of Federal Regulations 

(CFR) parts 302 and 355. If you have 

questions regarding the applicability of 

this action to a particular entity, consult 

the persons listed in the FOR FURTHER

INFORMATION CONTACT section. 

B. Why is EPA issuing this action? 

Section 553 of the Administrative 

Procedure Act, 5 U.S.C. 553(b)(3)(B), 

provides that, when an agency for good 

cause finds that notice and public 

procedure are impracticable, 

unnecessary or contrary to the public 

interest, the agency may issue a rule 

without providing notice and an 

opportunity for public comment. EPA 

has determined that there is good cause 

to issue this final rule without prior 

proposal and opportunity for comment 

because these revisions undertake the 

ministerial tasks of removing CERCLA 

and EPCRA regulatory provisions 

vacated by the D.C. Circuit and adding 

provisions to the CERCLA regulations 

consistent with the FARM Act’s 

legislative amendments to CERCLA 

section 103. 

As a matter of law, the orders issued 

by the D.C. Circuit on April 11, 2017 

and May 2, 2018 vacated the final rule 

titled ‘‘CERCLA/EPCRA Administrative 

Reporting Exemption for Air Releases of 

Hazardous Substances From Animal 

Waste at Farms’’ (73 FR 76948, 

December 18, 2008), herein referred to 

as the ‘‘2008 final rule,’’ which was 

issued by EPA under CERCLA, 42 

U.S.C. 9601 et seq. and EPCRA, 42 

U.S.C. 11001 et seq. It is, therefore, 

unnecessary to provide notice and an 

opportunity for comment on this action, 

which merely carries out the court’s 

orders by removing the administrative 

reporting exemption and related 

definitions of ‘‘farm’’ and ‘‘animal 

waste’’ from the CERCLA regulations at 

40 CFR part 302 and the EPCRA 

regulations at 40 CFR part 355. 

Prior to the court mandate vacating 

the 2008 final rule, Congress passed the 

FARM Act, which was signed into law 

by the President on March 23, 2018. The 

FARM Act amended CERCLA section 

103 (42 U.S.C. 9603) to exempt 

reporting of air emissions from animal 

waste (including decomposing animal 

waste) at farms. This final rule revises 

the CERCLA regulations at 40 CFR part 

302 to be consistent with the FARM 

Act’s amendments to CERCLA section 

103 by adding the reporting exemption 

for air emissions from animal waste at 

farms and adding definitions of ‘‘farm’’ 

and ‘‘animal waste’’ from the FARM 

Act. EPA finds that it is unnecessary to 

provide notice and an opportunity to 

comment on these revisions because 

this final rule merely codifies the FARM 

Act’s legislative amendments to 

CERCLA. 

In addition, EPA finds that it has good 

cause to make these revisions 

immediately effective under section 

553(d) of the Administrative Procedure 

Act, 5 U.S.C. 553(d). EPA has 

determined that there is good cause for 

making this final rule effective 

immediately because this action merely 


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Federal Register / Vol. 83, No. 148 / Wednesday, August 1, 2018 / Rules and Regulations 37445 

implements court orders vacating 

certain regulatory provisions and 

codifies statutory amendments to 

CERCLA. Delaying the effectiveness of 

this rulemaking would prolong the 

period of time between the change in 

the law (i.e., the court’s mandate and the 

FARM Act’s amendments to CERCLA) 

and the corresponding update to the 

regulations. Minimizing that time 

period would reduce the possibility of 

confusion for the regulated community 

and the public. 

C. What is the Agency’s authority for 

taking this action? 

These regulations are promulgated 

under the authority of section 102(a), 

103, 104, and 115 of the Comprehensive 

Environmental Response, Compensation 

and Liability Act of 1980 (CERCLA), 42 

U.S.C. 9601 et seq., as amended by the 

Superfund Amendments and 

Reauthorization Act (SARA) of 1986. 

The Agency also relies on section 304 of 

the Emergency Planning and 

Community Right-to-Know Act of 1986 

(EPCRA), 42 U.S.C. 11001 et seq., as 

authority to issue regulations governing 

EPCRA section 304 notification 

requirements, and EPCRA section 328 

for general rulemaking authority. 

Finally, the Agency relies on the 

Consolidated Appropriations Act 

(Omnibus Bill), which was signed into 

law on March 23, 2018. Title XI of 

Division S of the Omnibus Bill, known 

as the Fair Agricultural Reporting 

Method (FARM) Act exempts the 

reporting of air emissions from animal 

waste (including decomposing animal 

waste) at a farm under CERCLA section 

103(e). 

II. Background of the Final Rule 

A. Overview 

Section 103 of CERCLA requires the 

person in charge of a vessel or facility 

to immediately notify the National 

Response Center (NRC) when there is a 

release of a hazardous substance, as 

defined under CERCLA section 101(14), 

in an amount equal to or greater than 

the reportable quantity for that 

substance within a 24-hour period. In 

addition to these CERCLA reporting 

requirements, EPCRA section 304 

requires owners or operators of certain 

facilities to immediately notify state and 

local authorities when there is a release 

of an extremely hazardous substance, as 

defined under EPCRA section 302, or of 

a CERCLA hazardous substance in an 

amount equal to or greater than the 

reportable quantity for that substance 

within a 24-hour period. 

B. December 2008 Administrative 

Reporting Exemption for Farms 

On December 18, 2008 (73 FR 76948), 

EPA issued an administrative reporting 

exemption for air releases from animal 

waste at farms. Specifically, the rule 

exempted all farms from CERCLA’s 

reporting requirements for air releases of 

any hazardous substance from animal 

waste. Under EPCRA, the 2008 final rule 

exempted reporting of such releases if 

the farm had fewer animals than a large 

concentrated animal feeding operation, 

as defined by the Clean Water Act. 

Documents related to this rulemaking 

are located at www.regulations.gov, 

docket number EPA–HQ–SFUND–2007– 

0469. 

The 2008 administrative reporting 

exemption was ultimately struck down, 

or vacated, by the U.S. Court of Appeals 

for the District of Columbia Circuit in 

Waterkeeper Alliance v. EPA, 853 F.3d 

527 (D.C. Cir. 2017). In vacating the 

rule, the court found that the Agency 

could not rely on general rulemaking 

authority or a de minimis exception to 

issue an administrative reporting 

exemption for this category of releases, 

particularly where the Agency had 

failed to identify any statutory 

ambiguity as the basis for its 

interpretation of the reporting 

requirements. The court issued a 

mandate effectuating the vacatur on 

May 2, 2018. 

C. FARM Act and Legislative 

Amendments to CERCLA 

On March 23, 2018 the Consolidated 

Appropriations Act (Omnibus Bill) was 

signed into law. Title XI of Division S 

of the Omnibus Bill, known as the 

FARM Act, exempts the reporting of air 

emissions from animal waste at a farm 

under CERCLA section 103(e). See Fair 

Agricultural Reporting Method Act, 

Public Law 115–141, Sections 1101– 

1103 (2018). 

III. Vacatur and Court Mandate: 

Revisions to CERCLA and EPCRA 

Regulations 

Due to the D.C. Circuit’s issuance of 

its mandate vacating the 2008 final rule, 

EPA is amending the CERCLA and 

EPCRA regulations to remove any 

provisions added in the 2008 final rule. 

These regulations are amended by 

removing the administrative reporting 

exemption for air releases of a 

hazardous substance from animal waste 

at farms at 40 CFR 302.6(e)(3) and 

355.31(g) and (h). EPA is also removing 

the definitions of ‘‘animal waste’’ and 

‘‘farm’’ from 40 CFR 302.3 and 355.61. 

IV. FARM Act: Revisions to CERCLA 

Regulations 

The FARM Act amended CERCLA 

section 103 by providing an exemption 

from reporting air emissions from 

animal waste (including decomposing 

animal waste) at a farm. In this final 

rule, EPA is adding this exemption to 

the CERCLA release reporting regulation 

in 40 CFR 302.6 as well as the 

definitions of ‘‘animal waste’’ and 

‘‘farm’’ to 40 CFR 302.3. Due to the 

FARM Act, farms remain exempt from 

CERCLA release reporting requirements 

despite the D.C. Circuit’s vacatur of the 

2008 final rule. 

V. Effective Date 

This final rule will become effective 

immediately upon publication in this 

Federal Register. 

VI. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993) and Executive 

Order 13563 (76 FR 3821, January 21, 

2011), this action is not a ‘‘significant 

regulatory action’’ and therefore was not 

submitted to the Office of Management 

and Budget (OMB) for review. In 

addition, this action is not considered 

an Executive Order 13771 (82 FR 9339, 

February 3, 2017) regulatory action, 

because this action is not significant 

under Executive Order 12866. This 

action is not subject to notice and 

comment requirements under the 

Administrative Procedure Act or any 

other statute, therefore, it is not subject 

to the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) or sections 202 and 

205 of the Unfunded Mandates Reform 

Act of 1999 (Pub. L. 104–4). This action 

is not subject to the RFA. The RFA 

applies only to rules subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

(APA), 5 U.S.C. 553, or any other 

statute. This rule is not subject to notice 

and comment requirements because the 

Agency has invoked the APA ‘‘good 

cause’’ exemption under 5 U.S.C. 

553(b). In addition, this action does not 

significantly or uniquely affect small 

governments. This action does not 

create new binding legal requirements 

that substantially and directly affect 

Tribes under Executive Order 13175 (65 

FR 67249, November 9, 2000). This 

action does not have significant 

Federalism implications under 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 


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37446 Federal Register / Vol. 83, No. 148 / Wednesday, August 1, 2018 / Rules and Regulations 

responsibilities among the various 

levels of government. Because this final 

rule is not subject to review under 

Executive Order 12866, this final rule is 

not subject to Executive Order 13211, 

entitled Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001) or Executive Order 13045, 

entitled Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997). 

This final rule does not contain any 

information collections subject to OMB 

approval under the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq., nor does it require any special 

considerations under Executive Order 

12898, entitled Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations (59 FR 7629, February 16, 

1994). This action does not involve 

technical standards; thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. 

Congressional Review Act 

This action is subject to the 

Congressional Review Act (CRA), and 

the EPA will submit a rule report to 

each House of Congress and to the 

Comptroller General of the United 

States. The CRA allows the issuing 

agency to make a rule effective sooner 

than otherwise provided by the CRA if 

the agency makes a good cause finding 

that notice and comment rulemaking 

procedures are impracticable, 

unnecessary or contrary to the public 

interest (5 U.S.C. 808(2)). The EPA has 

made a good cause finding for this rule 

as discussed in Section I.B of the 

preamble, including the basis for that 

finding. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

List of Subjects 

40 CFR Part 302 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, Reporting 

and recordkeeping requirements, 

Superfund, Water pollution control, 

Water supply. 

40 CFR Part 355 

Environmental protection, Chemicals, 

Disaster assistance, Hazardous 

substances, Hazardous waste, Natural 

resources, Penalties, Reporting and 

recordkeeping requirements, Superfund. 

Dated: July 23, 2018. 

Andrew R. Wheeler, 

Acting Administrator. 

For the reasons stated in the 

preamble, EPA is amending 40 CFR 

parts 302 and 355 as follows: 

PART 302—DESIGNATION, 

REPORTABLE QUANTITIES, AND 

NOTIFICATION 

■ 1. The authority citation for part 302 

is revised to read as follows: 

Authority: 42 U.S.C. 9602, 9603, and 9604; 

33 U.S.C. 1321 and 1361. 

■ 2. Section 302.3 is amended by 

revising the definitions for ‘‘Animal 

waste’’ and ‘‘Farm’’ to read as follows: 

§ 302.3 Definitions. 

* * * * * 

Animal waste means feces, urine, or 

other excrement, digestive emission, 

urea, or similar substances emitted by 

animals (including any form of 

livestock, poultry, or fish). The term 

‘‘animal waste’’ includes animal waste 

that is mixed or commingled with 

bedding, compost, feed, soil, or any 

other material typically found with such 

waste. 

* * * * * 

Farm means a site or area (including 

associated structures) that— 

(1) Is used for— 

(i) The production of a crop; or 

(ii) The raising or selling of animals 

(including any form of livestock, 

poultry, or fish); and 

(2) Under normal conditions, 

produces during a farm year any 

agricultural products with a total value 

equal to not less than $1,000. 

* * * * * 

■ 3. Section 302.6 is amended by 

revising paragraph (e)(3) to read as 

follows: 

§ 302.6 Notification requirements. 

* * * * * 

(e) * * * 

(3) Air emissions from animal waste 

(including decomposing animal waste) 

at a farm. 

PART 355—EMERGENCY PLANNING 

AND NOTIFICATION 

■ 4. The authority citation for part 355 

continues to read as follows: 

Authority: Sections 302, 303, 304, 325, 

327, 328, and 329 of the Emergency Planning 

and Community Right-to-Know Act of 1986 

(EPCRA) (42 U.S.C. 11002, 11003, 11004, 

11045, 11047, 11048, and 11049). 

§ 355.31 [Amended] 

■ 5. Section 355.31 is amended by 

removing paragraphs (g) and (h). 

§ 355.61 [Amended] 

■ 6. Section 355.61 is amended by 

removing the definitions for ‘‘Animal 

waste’’ and ‘‘Farm’’. 

[FR Doc. 2018–16379 Filed 7–31–18; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 180517485–8649–01] 

RIN 0648—XG262 

Atlantic Highly Migratory Species; 

Adjustments to 2018 North and South 

Atlantic Swordfish Quotas 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary final rule. 

SUMMARY: NMFS adjusts the North and 

South Atlantic swordfish baseline 

quotas for 2018 based on available 

underharvest from the 2017 adjusted 

U.S. quotas. This action is necessary to 

implement binding recommendations of 

the International Commission for the 

Conservation of Atlantic Tunas (ICCAT), 

as required by the Atlantic Tunas 

Convention Act (ATCA), and to achieve 

domestic management objectives under 

the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). 

DATES: Effective August 31, 2018, 

through December 31, 2018. 

ADDRESSES: Supporting documents, 

such as the 2012 and 2007 

Environmental Assessments (EA) and 

the 2006 Consolidated Atlantic Highly 

Migratory Species (HMS) Fishery 

Management Plan and its amendments 

described below, may be downloaded 

from the HMS website at https://

www.fisheries.noaa.gov/topic/atlantichighly-migratory-species. These 

documents also are available upon 

request from Chante ́ Davis or Steve 

Durkee at the telephone numbers below. 

FOR FURTHER INFORMATION CONTACT: 

Chante ́ Davis, (301) 427–8503, or, Steve 

Durkee, (202) 670–6637. 

SUPPLEMENTARY INFORMATION: 

Regulations implemented under the 

authority of ATCA, 16 U.S.C. 971 et 

seq., and the Magnuson-Stevens Act, 16 

U.S.C. 1801 et seq., governing the 

harvest of swordfish by persons and 

vessels subject to U.S. jurisdiction are 

found at 50 CFR part 635. Section 


sradovich on DSK3GMQ082PROD with RULES