[Federal Register Volume 74, Number 61 (Wednesday, April 1, 2009)]
[Rules and Regulations]
[Pages 14736-14738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7301]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2007-0584; FRL-8788-5]
RIN 2050-AG16


Oil Pollution Prevention; Non-Transportation Related Onshore 
Facilities; Spill Prevention, Control, and Countermeasure Rule--Final 
Amendments

AGENCY: Environmental Protection Agency.

ACTION: Final rule; delay of effective date.

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SUMMARY: The Environmental Protection Agency (EPA) is delaying the 
effective date of the final rule that amends the Spill Prevention, 
Control, and Countermeasure (SPCC) regulations promulgated in the 
Federal Register on December 5, 2008. The amendments will become 
effective on January 14, 2010. EPA additionally is requesting public 
comment on whether a further extension of the effective date may be 
warranted.

DATES: This document is effective April 1, 2009. The effective date of 
the final rule (FR Doc. E8-28159), published in the Federal Register on 
December 5, 2008 (73 FR 74236), that was delayed until April 4, 2009 
(74 FR 5900), is further delayed to January 14, 2010.
    Comments must be received on or before May 1, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2007-0584, by one of the following methods:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> Mail: EPA Docket, Environmental Protection Agency, Mail 
Code: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    <bullet> Hand Delivery: EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OPA-
2007-0584. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in index at the 
http://www.regulations.gov. Although listed in the index, some 
information may not be publicly available, such as Confidential 
Business Information (CBI) or other information the disclosure of which 
is restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically at 
http://www.regulations.gov or in hard copy at the EPA Docket, EPA/DC, 
EPA West, 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 legal holidays. The telephone number of the Public 
Reading Room is 202-566-1744, and the telephone number to make an 
appointment to view the docket is 202-566-0276.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
Superfund, TRI, EPCRA, RMP, and Oil

[[Page 14737]]

Information Center at 800-424-9346 or TDD at 800-553-7672 (hearing 
impaired). In the Washington, DC metropolitan area, contact the 
Superfund, TRI, EPCRA, RMP, and Oil Information Center at 703-412-9810 
or TDD 703-412-3323. For more detailed information on specific aspects 
of this final rule, contact either Vanessa E. Principe at 202-564-7913 
(<a href="/cdn-cgi/l/email-protection#9dedeff4f3fef4edf8b3ebfcf3f8eeeefcddf8edfcb3faf2eb"><span class="__cf_email__" data-cfemail="f9898b90979a90899cd78f98979c8a8a98b99c8998d79e968f">[email protected]</span></a>), or Mark W. Howard at 202-564-1964 
(<a href="/cdn-cgi/l/email-protection#9ff7f0e8feedfbb1f2feedf4e8dffaeffeb1f8f0e9"><span class="__cf_email__" data-cfemail="234b4c544251470d4e42514854634653420d444c55">[email protected]</span></a>), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460-0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION: On February 3, 2009 (74 FR 5900), EPA 
delayed, by sixty days, the effective date of the final rule that 
amends the Spill Prevention, Control, and Countermeasure (SPCC) 
regulations that was promulgated in the Federal Register on December 5, 
2008 (73 FR 74236) under section 311 of the Clean Water Act. This was 
done in accordance with the January 20, 2009, White House memorandum 
entitled ``Regulatory Review'' (74 FR 4435, January 26, 2009) and the 
memorandum from the Office of Management and Budget entitled 
``Implementation of Memorandum Concerning Regulatory Review'' (M-09-08, 
January 21, 2009) (OMB memorandum). The Agency took that action to 
ensure that the rule reflects proper consideration of all relevant 
facts. In the February 3, 2009 notice (74 FR 5900), EPA requested 
public comment on the extension of the effective date and its duration, 
and on the regulatory amendments contained in the final rule. The SPCC 
rule amendments clarify, tailor, and streamline certain existing 
requirements for those facility owners or operators who are required to 
prepare and implement an SPCC Plan (or ``Plan'') to prevent the 
discharge of oil into or upon navigable waters of the United States or 
adjoining shorelines.
    EPA received 57 comments in response to the February 3, 2009 
notice. Several comments addressed the effective date for the December 
2008 rule amendments. Specifically, three commenters suggested the rule 
become effective on April 4, 2009, particularly for provisions related 
to onshore, non-oil production facilities, while one commenter 
requested that EPA finalize the rule expeditiously to ensure time to 
conduct outreach efforts. On the other hand, one commenter suggested 
the rule not become effective on April 4, 2009 and requested that the 
rule be withdrawn permanently, or the effective date extended 
indefinitely until the 2008 proposed amendments can be carefully 
reconsidered. Other commenters provided recommendations related to 
specific amendments, such as the optional approaches for produced water 
containers, the criteria for qualified oil production facilities, and 
other amendments. Consistent with the January 21, 2009 OMB memorandum 
``Implementation of Memorandum Concerning Regulatory Review,'' the EPA 
Administrator has chosen this rule for additional assessment of policy 
and legal issues; therefore, EPA must carefully consider the issues 
raised in these comments. Because EPA cannot adequately address the 
comments before an April 4, 2009 effective date, the Agency agrees with 
the comment in support of delaying the effective date. With this 
action, the Agency is extending the effective date of the December 5, 
2008 SPCC amendments and is requesting public comment on whether a 
further extension of the effective date may be warranted. The Agency 
will provide a complete discussion of the comments received specific to 
the amendments, and its response to those comments, in a Federal 
Register notice describing any changes to the 2008 amendments.
    The effective date of the final rule would have been April 4, 2009. 
With this extension, the amendments will become effective on January 
14, 2010.
    This rule is effective immediately. Section 553(d) of the 
Administrative Procedures Act requires 30 days notice before the 
effective date of a final rule. However, section 553(d)(1) allows an 
exception to the 30-day notice where a rule relieves a restriction. 
Because this final rule relieves a restriction, the Agency invokes 
section 553(d)(1) to allow an immediate effective date.
    Finally, the Agency is also reviewing the dates by which owners or 
operators of facilities must prepare or amend their SPCC Plans, and 
implement those Plans. EPA intends to address these dates in a separate 
notice.

Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action results in no changes to the information collection 
requirements of the SPCC rule and will have no impact on the 
information collection estimate of project cost and hour burden 
previously submitted to OMB.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. After considering the economic 
impacts of today's final rule on small entities, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities. In determining whether a rule has a 
significant economic impact on a substantial number of small entities, 
the impact of concern is any significant adverse economic impact on 
small entities, since the primary purpose of the regulatory flexibility 
analyses is to identify and address regulatory alternatives ``which 
minimize any significant economic impact of the rule on small 
entities.'' 5 U.S.C. 603 and 604. Thus, an agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, or 
otherwise has a positive economic effect on all of the small entities 
subject to the rule.
    This action is delaying the effective date of the final rule that 
amends the SPCC regulations promulgated in the Federal Register on 
December 5, 2008. We have therefore concluded that today's final rule 
will relieve regulatory burden for all affected small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform

[[Page 14738]]

Act of 1995 (UMRA), 2 U.S.C. 1531- 1538 for state, local, or tribal 
governments or the private sector. This action imposes no enforceable 
duty on any state, local, or tribal governments or the private sector. 
Therefore, this action is not subject to the requirements of sections 
202 and 205 of the UMRA. This action is also not subject to the 
requirements of section 203 of UMRA because it contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. This action only delays the effective date of the December 
5, 2008 rule and does not impose any additional enforceable duty.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. 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 responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action will not impose direct 
compliance costs on state or local governments, and will not preempt 
state law. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (59 FR 22951, November 9, 2000). It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5- 501 of the 
Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in 
Executive Order 12866, and because the Agency does not believe the 
environmental health or safety risks addressed by this action presents 
a disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA) (Pub. L. 104-113; section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by VCS bodies. NTTAA 
directs EPA to provide Congress, through OMB, explanations when EPA 
decides not to use available and applicable VCS. This action does not 
involve technical standards. Therefore, EPA did not consider the use of 
any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 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 public procedure is 
impracticable, unnecessary, or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefore. EPA will submit a report containing this rule 
and other required information to the United States Senate, the United 
States House of Representatives, and the Comptroller General of the 
United States prior to publication of the rule in the Federal Register. 
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

    Dated: March 26, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-7301 Filed 3-31-09; 8:45 am]
BILLING CODE 6560-50-P


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