[Federal Register Volume 75, Number 198 (Thursday, October 14, 2010)]
[Rules and Regulations]
[Pages 63093-63103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25899]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2009-0880; FRL-9213-8]
RIN 2050-AG59


Oil Pollution Prevention; Spill Prevention, Control, and 
Countermeasure (SPCC) Rule--Compliance Date Amendment

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency) 
is promulgating a new compliance date of November 10, 2011 by which 
certain facilities must prepare or amend their Spill Prevention, 
Control, and Countermeasure (SPCC) Plans, and implement those Plans, 
providing an additional year for certain facilities. This action allows 
additional time for those affected in the regulated community to 
understand the revisions to the SPCC rule finalized in December 2008 
and November 2009. However, EPA is not extending the compliance date 
for drilling, production or workover facilities that are offshore or 
that have an offshore component, or for onshore facilities required to 
have and submit Facility Response Plans (FRPs). Additionally, the 
Agency is delaying the compliance date by which facilities must address 
milk and milk product containers, associated piping and appurtenances 
that are constructed according to the current applicable 3-A Sanitary 
Standards, and subject to the current applicable Grade ``A'' 
Pasteurized Milk Ordinance (PMO) or a State dairy regulatory 
requirement equivalent to the current applicable PMO. The date by which 
the owner or operator of a facility must comply with the SPCC 
requirements for these milk and milk product containers is delayed one 
year from the effective date of a final rule specifically addressing 
these milk and milk product containers, associated piping and 
appurtenances, or as specified by a rule that otherwise establishes a 
compliance date for these facilities. Both the extension and delay of 
the compliance date provide time for certain facilities to undertake 
the actions necessary to prepare or amend their SPCC Plans, as well as 
implement them.

DATES: This final rule is effective on October 14, 2010.

ADDRESSES: The public docket for this rulemaking, Docket ID No. EPA-HQ-
OPA-2009-0880, contains the information related to this rulemaking, 
including the response to comment document. All documents in the docket 
are listed in the index at 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,

[[Page 63094]]

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 on the SPCC 
rule, contact the Superfund, TRI, EPCRA, RMP and Oil Information Center 
at (800) 424-9346 or TDD (800) 553-7672 (hearing impaired). In the 
Washington, DC metropolitan area, call (703) 412-9810 or TDD (703) 412-
3323. For more detailed information on specific aspects of this final 
rule, contact either Vanessa Principe at (202) 564-7913 
(<a href="/cdn-cgi/l/email-protection#6d1d1f04030e041d08431b0c03081e1e0c2d081d0c430a021b"><span class="__cf_email__" data-cfemail="a4d4d6cdcac7cdd4c18ad2c5cac1d7d7c5e4c1d4c58ac3cbd2">[email protected]</span></a>) or Mark W. Howard at (202) 564-1964 
(<a href="/cdn-cgi/l/email-protection#aac2c5ddcbd8ce84c7cbd8c1ddeacfdacb84cdc5dc"><span class="__cf_email__" data-cfemail="e28a8d95839086cc8f83908995a2879283cc858d94">[email protected]</span></a>), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC, 20460-0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION: The contents of this preamble are:

I. General Information
II. Entities Potentially Affected by This Final Rule
III. Statutory Authority
IV. Background
V. This Action
    A. Extension of Compliance Date by One Year for Certain 
Facilities
    B. Exceptions to the Compliance Date Extension
    C. Oil Production Facilities Beginning Operations After the 
Compliance Date
    D. Delay of Compliance Date for Facilities Affecting Milk and 
Milk Product Containers, Associated Piping and Appurtenances
    E. Summary of Comments and Response
    F. Other Considerations
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 Federalism
    F. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children from 
Environmental Health & Safety Risks
    H. Executive Order 13211--Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898--Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

    On August 3, 2010, the Agency proposed to amend the date by which 
certain facilities must prepare or amend their Spill Prevention, 
Control, and Countermeasure (SPCC) Plans (or ``Plan''), and implement 
those Plans (75 FR 45572). This action extends the compliance date an 
additional year for certain facilities, with a new compliance date of 
November 10, 2011, to allow time for those affected in the regulated 
community to understand the revisions to the SPCC rule finalized in 
December 2008 and November 2009 and amend or prepare and implement 
their SPCC Plans. However, EPA is not extending the compliance date for 
drilling, production or workover facilities that are offshore or that 
have an offshore component, or for onshore facilities required to have 
and submit Facility Response Plans (FRPs).
    Additionally, the Agency is delaying the compliance date by which 
the owner or operator of a facility must address milk and milk product 
containers, associated piping and appurtenances that are constructed 
according to the current applicable 3-A Sanitary Standards, and subject 
to the current applicable Grade ``A'' Pasteurized Milk Ordinance (PMO) 
or a State dairy regulatory requirement equivalent to the current 
applicable PMO. The date by which the owner or operator of a facility 
must comply with SPCC requirements for these milk and milk product 
containers is delayed one year from the effective date of a final rule 
specifically addressing these milk and milk product containers, 
associated piping and appurtenances, or as specified by a rule that 
otherwise establishes a new compliance date for these facilities. Both 
the extension and delay of the compliance date provide time for certain 
facilities to undertake the actions necessary to prepare or amend their 
SPCC Plans, as well as implement them.

II. Entities Potentially Affected by This Final Rule

    In the table below, EPA is providing a list of potentially affected 
entities. However, this action may affect other entities not listed 
below. The Agency's goal is to provide a guide for readers to consider 
regarding entities that potentially could be affected by this action. 
If you have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding section 
titled FOR FURTHER INFORMATION CONTACT.

------------------------------------------------------------------------
          Industry sector                        NAICS code
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Oil Production....................  211111
Farms.............................  111, 112
Electric Utility Plants...........  2211
Petroleum Refining and Related      324
 Industries.
Chemical Manufacturing............  325
Food Manufacturing................  311, 312
Manufacturing Facilities Using and  311, 325
 Storing Animal Fats and Vegetable
 Oils.
Metal Manufacturing...............  331, 332
Other Manufacturing...............  31-33
Real Estate Rental and Leasing....  531-533
Retail Trade......................  441-446, 448, 451-454
Contract Construction.............  23
Wholesale Trade...................  42
Other Commercial..................  492, 541, 551, 561-562
Transportation....................  481-488
Arts Entertainment & Recreation...  711-713
Other Services (Except Public       811-813
 Administration).
Petroleum Bulk Stations and         4247
 Terminals.
Education.........................  61
Hospitals & Other Health Care.....  621, 622
Accommodation and Food Services...  721, 722
Fuel Oil Dealers..................  45431
Gasoline Stations.................  4471
Information Finance and Insurance.  51, 52
Mining............................  212

[[Page 63095]]

 
Warehousing and Storage...........  493
Religious Organizations...........  813110
Military Installations............  928110
Pipelines.........................  4861, 48691
Government........................  92
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III. Statutory Authority

    33 U.S.C. 1251 et seq.; 33 U.S.C.2720; E.O. 12777 (October 18, 
1991), 3 CFR, 1991 Comp., p.351.

IV. Background

    On July 17, 2002, the Agency published a final rule that amended 
the SPCC regulation (67 FR 47042). The rule became effective on August 
16, 2002. The final rule included compliance dates in Sec.  112.3 for 
preparing, amending, and implementing SPCC Plans. The dates for 
complying with amendments to the SPCC regulations have been amended a 
number of times: on January 9, 2003 (68 FR 1348), on April 17, 2003 (68 
FR 18890), on August 11, 2004 (69 FR 48794), on February 17, 2006 (71 
FR 8462), on May 16, 2007 (72 FR 27444), and again on June 19, 2009 (74 
FR 29136). These extensions alleviated the need for individual 
extension requests and provided additional time for the regulated 
community to, among other things: understand the July 2002 SPCC 
amendments and the implications of the litigation (see 69 FR 29728, May 
25, 2004 and 73 FR 71941, November 26, 2008); allow those potentially 
affected in the regulated community an opportunity to make changes to 
their facilities and to their SPCC Plans necessary to comply with 
amendments to the SPCC rule as finalized in December 2006, December 
2008, and November 2009; and to understand the material presented in 
the SPCC Guidance for Regional Inspectors before preparing or amending 
their SPCC Plans. All of these changes and amendments were promulgated 
to provide increased clarity, to tailor the requirements to particular 
industry sectors, and to streamline certain requirements for those 
facility owners or operators subject to the rule. The current date 
under Sec.  112.3(a), (b) and (c) by which owners/operators of 
facilities must prepare or amend their SPCC Plans, and implement those 
Plans, is November 10, 2010.
    In accordance with the January 20, 2009 White House memorandum 
entitled, ``Regulatory Review,'' 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 effective date of the December 2008 rulemaking was 
delayed until April 4, 2009 (74 FR 5900, February 3, 2009) and then 
until January 14, 2010 (74 FR 14736, April 1, 2009). The Agency took 
this action to ensure that the rule reflected proper consideration of 
all relevant facts. In the February 3, 2009 notice, EPA requested 
public comment on the extension of the effective date and its duration, 
and on the regulatory amendments contained in the December 2008 final 
rule. Upon reviewing the record for the amendments and the additional 
comments, EPA promulgated further amendments to the SPCC rule on 
November 13, 2009 (74 FR 58784), making limited changes to the December 
2008 amendments. The effective date for both the December 5, 2008 and 
the November 13, 2009 final rule is January 14, 2010, with a compliance 
date of November 10, 2010. Because of the uncertainty that surrounded 
EPA's review of the final amendments to the December 5, 2008 rule, the 
delay of the effective date of that rule and publication of final rule 
amendments on November 13, 2009, the Agency is extending the compliance 
date for certain facilities.
    On January 15, 2009, EPA proposed to exempt from the SPCC 
requirements milk containers, associated piping and appurtenances 
provided they are constructed according to current applicable 3-A 
Sanitary Standards, and are subject to the current applicable PMO or a 
State dairy regulatory requirement equivalent to the current applicable 
PMO (74 FR 2461), and that the capacity of these milk containers would 
not be included in a facility's total oil storage capacity calculation. 
The Agency requested comment on an exemption for milk product 
containers and their associated piping and appurtenances from the SPCC 
rule provided they are also constructed in accordance with the current 
applicable 3-A Sanitary Standards, and are subject to the current 
applicable Grade ``A'' PMO sanitation requirements or a State dairy 
regulatory equivalent to the current applicable PMO. The Agency also 
requested comment on how to address milk storage containers (including 
totes) that may not be constructed to 3-A Sanitary Standards under the 
SPCC rule and whether they should also be exempted from the SPCC 
requirements, provided they are subject to the current applicable Grade 
``A'' PMO or a State dairy regulatory requirement equivalent to the 
current applicable PMO. Finally, the Agency also requested comment on 
alternative approaches to address milk and milk product containers, 
associated piping and appurtenances under the SPCC rule. Today's action 
delays the compliance date by which facilities must address milk and 
milk product containers, associated piping and appurtenances that may 
be impacted by a final rule exempting these containers.

V. This Action

    Under the current provisions in Sec.  112.3(a), the owner or 
operator of a facility that was in operation on or before August 16, 
2002 must maintain and implement the facility's SPCC Plan, make any 
necessary revisions pursuant to the 2002, 2006, 2008 and 2009 
amendments to the Plan, and fully implement the amended Plan by 
November 10, 2010; the owner or operator of a facility that came into 
operation after August 16, 2002, but before November 10, 2010, must 
prepare and fully implement an SPCC Plan on or before November 10, 
2010. Under the current provisions in Sec.  112.3(b), the owner or 
operator of a facility (excluding oil production facilities) that 
becomes operational after November 10, 2010 must prepare and implement 
an SPCC Plan before beginning operations; the owner or operator of an 
oil production facility that becomes operational after November 10, 
2010 must prepare and implement a Plan within six months after 
beginning operations. In addition, the current provision in Sec.  
112.3(c) requires the owners and operators of onshore and offshore 
mobile or portable facilities to prepare, implement, and maintain an 
SPCC Plan, and to amend it, if necessary to ensure compliance with this 
part, on or before November 10, 2010. The owner or operator of any 
onshore or offshore mobile or portable facility that becomes 
operational after November 10, 2010, must prepare and implement a Plan 
before beginning operations.

[[Page 63096]]

    This rule amends the dates in Sec.  112.3(a), (b) and (c) by which 
the owners/operators of facilities (except drilling, production or 
workover facilities that are offshore or that have an offshore 
component, and all onshore facilities required to have and submit FRPs 
\1\) must prepare or amend their SPCC Plans, and implem ent those 
Plans, to November 10, 2011. This action extends the date by one year 
from the current SPCC compliance date of November 10, 2010. This 
extension of the compliance date does not apply, however, to drilling, 
production or workover facilities that are completely offshore or that 
have both onshore and offshore components (e.g., an oil production 
facility with offshore wellheads connected to an onshore tank battery 
by submerged flowlines). For offshore drilling, production or workover 
facilities, the Agency is concerned about the need to have the most up-
to-date SPCC Plans due to the unusual combination of characteristics of 
these facilities: continuous flow of oil at the facility, potential 
discharges being limited only by the capacity and pressure of the 
underground reservoir, and discharges that would have immediate and 
direct impact on water.
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    \1\ Offshore FRP facilities are addressed in the exception to 
the compliance date extension as part of the drilling, production or 
workover facilities that are offshore or that have an offshore 
component.
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    For onshore facilities, the Agency also is concerned that extending 
the existing compliance date for facilities with large oil storage 
capacities could increase the potential to cause substantial harm if a 
discharge were to occur. Onshore facilities with large oil storage 
capacities have the potential to cause substantial harm as identified 
under the FRP regulation (40 CFR Part 112.20 and 112.21). FRP 
facilities are those with storage capacities of 1 million gallons or 
more that could cause substantial harm \2\ or those with storage 
capacities at or above 42,000 gallons and that transfer oil to or from 
a vessel over water. The Agency believes that FRP facilities should 
also have the most up-to-date SPCC Plans due to the potential to cause 
substantial harm, if a discharge were to occur. (Note: The Agency has 
not changed any compliance dates with respect to the FRP regulations.) 
Therefore, EPA is not extending the compliance date for drilling, 
production or workover facilities that are offshore or that have an 
offshore component, or all onshore facilities required to have and 
submit FRPs, due to the threats these facilities pose of significant 
oil spills to navigable waters or adjoining shorelines.
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    \2\ A facility may pose ``substantial harm'' according to the 
FRP rule if it (1) has a total oil storage capacity greater than or 
equal to 42,000 gallons and it transfers oil over water to/from 
vessels; or (2) has a total oil storage capacity greater than or 
equal to one million gallons and meets one of the following 
conditions: (a) Does not have sufficient secondary containment for 
the capacity of the largest aboveground oil storage tank in each 
aboveground storage area; (b) is located at a distance such that a 
discharge from the facility could cause ``injury'' to fish, 
wildlife, and sensitive environments; (c) is located at a distance 
such that a discharge from the facility would shut down a public 
drinking water intake; or (d) has had, within the past five years, a 
reportable discharge greater than or equal to 10,000 gallons.
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    The Agency is also delaying the compliance date by which the owner 
or operator of a facility must address milk and milk product 
containers, associated piping and appurtenances. The delay of the 
compliance date affects facilities with milk and milk product 
containers that are constructed according to the current applicable 3-A 
Sanitary Standards, and subject to the current applicable Grade ``A'' 
PMO or a State dairy regulatory requirement equivalent to the current 
applicable PMO. The date by which a facility owner or operators must 
comply with SPCC requirements for these milk and milk product 
containers is delayed by one year from the effective date of a final 
rule specifically addressing these milk and milk product containers, 
associated piping and appurtenances, or as specified by a rule that 
otherwise establishes a compliance date for these facilities. The 
Agency will establish the compliance date and publish it in the Federal 
Register as part of any final action on the proposed exemption (74 FR 
2461, January 15, 2009). The delay provides the owner or operator of 
these facilities the opportunity to fully understand any regulatory 
amendments that may be finalized.
    This rule is effective immediately upon publication in the Federal 
Register. 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.
    Today's rule revises the regulatory text in the proposed rule in 
response to the comments received. The Agency is making changes to the 
regulatory text in Sec.  112.3 to clarify how the extension and the 
delay of the compliance date applies for different facilities.

A. Extension of the Compliance Date by One Year for Certain Facilities

    This rule extends for most facilities the dates in Sec.  112.3(a), 
(b) and (c) by which the owner or operator must prepare or amend and 
implement an SPCC Plan. Exclusions to this compliance date extension 
are described below.\3\ Today's rule amends and combines Sec.  112.3(a) 
with Sec. Sec.  112.3(b)(1) and (c) in the new paragraph Sec.  
112.3(a)(1) to:
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    \3\ For applicability of this rule to facilities with milk and 
milk product containers, associated piping and appurtenances, see 
Section V.D in this preamble.
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    <bullet> Amend the compliance date for a facility, including a 
mobile or portable facility, in operation on or before August 16, 2002 
to require the owner or operator to make any necessary amendments to an 
SPCC Plan and fully implement the amended Plan by November 10, 2011.\4\
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    \4\ To be eligible for the compliance extension, owners or 
operators of facilities in operation before August 16, 2002 must 
continue to maintain their existing SPCC Plans.
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    <bullet> Amend the compliance date for a facility, including a 
mobile or portable facility, which came into operation after August 16, 
2002, but before November 10, 2011, to require the owner or operator to 
prepare and fully implement an SPCC Plan on or before November 10, 
2011.
    <bullet> Amend the compliance date for a facility, including a 
mobile or portable facility, (except an oil production facility \5\) 
which becomes operational after November 10, 2011 to require the owner 
or operator to prepare and implement an SPCC Plan before beginning 
operations.
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    \5\ On December 5, 2008 (73 FR 74236), EPA finalized an 
amendment to allow a new oil production facility (i.e., one that 
becomes operational after the compliance date) a period of six 
months after the start of operations to prepare and implement an 
SPCC Plan.
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    <bullet> Incorporate the language under the current Sec.  112.3(c) 
for mobile or portable facilities (such as an onshore drilling or 
workover rig, or a portable fueling facility) to amend the compliance 
date for these facilities to November 10, 2011 and maintain the 
language that allows mobile or portable facilities to prepare a general 
Plan.
    An extension of the compliance date for these facilities is 
appropriate because it provides the owners or operators of SPCC-
regulated facilities the opportunity to fully understand the regulatory 
amendments offered by revisions to the SPCC rule promulgated on 
December 5, 2008 (73 FR 74236) and November 13, 2009 (74 FR 58784). 
Given the delay in the effective date for the December 2008 rule 
amendment,

[[Page 63097]]

and the uncertainty that surrounded the final amendments because of 
this delay, this extension allows potentially affected facilities an 
additional year beyond the current compliance date of November 10, 2010 
to make any changes to their facilities and SPCC Plans to comply with 
the revised SPCC requirements. Considering that the changes in the 
final November 2009 amendments were very limited, and that most of the 
December 2008 amendments offered compliance options and regulatory 
burden relief, a timeframe for this extension of one year is 
appropriate. A one-year period from the current compliance date 
provides sufficient time to understand and implement the amendments to 
the SPCC rule.

B. Exceptions to the Compliance Date Extension

    The Agency is not extending the compliance date for drilling, 
production or workover facilities that are offshore or that have an 
offshore component, or for onshore facilities required to have and 
submit FRPs. The Agency is particularly concerned about the potential 
for immediate environmental impacts resulting from oil spills to 
navigable waters or adjoining shorelines posed by these facilities. All 
of these facilities have potentially significant quantities of oil that 
could be discharged to navigable waters or adjoining shorelines. 
Offshore drilling, production and workover facilities (and those with 
an offshore component) have a constant flow of oil associated with them 
and discharges could be in amounts that far exceed the oil storage 
capacity of the facility. Based on the recent experience with the Gulf 
of Mexico oil spill, the Agency is concerned that any potential oil 
discharge may be limited only by the capacity and pressure of the 
underground petroleum reservoir. The Agency's concern regarding these 
facilities is reflected in the fact that they have a greater number of 
requirements under the SPCC rule because of their location over 
navigable waters or adjoining shorelines (40 CFR Part 112.11). In 
addition to those facilities completely offshore, the Agency has 
identified many onshore facilities with offshore components, as in the 
case of over-water production platforms. While these facilities may 
have their tank batteries located onshore, their wellhead and portions 
of the flowlines are below the surface of the water. Offshore 
components include, but are not limited to, flow lines, gathering 
lines, wellheads, shut in valves, pressure control and sensing devices, 
cathodic protection devices and related piping and appurtenances. 
Because the Agency is equally concerned with the potential for 
immediate environmental impacts resulting from oil spills from a 
facility's offshore components, it is also excluding these facilities 
from any extension to the compliance date. The Agency is also excluding 
all onshore FRP facilities from the extension because of their large 
oil storage capacities and their potential to cause substantial harm in 
the event of a discharge as identified under the FRP regulation (40 CFR 
112.20). FRP facilities are those with storage capacities of 1 million 
gallons or more that could cause substantial harm, or those with 
storage capacities at or above 42,000 gallons and that transfer oil to 
or from a vessel over water.
    Today's rule adds a new paragraph Sec.  112.3(a)(2) to maintain the 
existing compliance date for this subset of facilities, and combines it 
with the Sec.  112.3(c) provision to indicate that the existing 
compliance date also applies to mobile or portable facilities within 
this subset:
    <bullet> Maintains the existing compliance date for A drilling, 
production or workover facility, including a mobile or portable 
facility, that is offshore or that has an offshore component; or an 
onshore facility required to have and submit an FRP, that was in 
operation on or before August 16, 2002, that requires the owner or 
operator to make any necessary amendments to an SPCC Plan and fully 
implement the amended Plan by November 10, 2010.
    <bullet> Maintains the existing compliance date for a drilling, 
production or workover facility, including a mobile or portable 
facility, that is offshore or that has an offshore component, or an 
onshore facility required to have and submit an FRP, that came into 
operation after August 16, 2002, but before November 10, 2010, that 
requires the owner or operator to prepare and fully implement an SPCC 
Plan on or before November 10, 2010.
    <bullet> Maintains the existing compliance date for a facility 
(except an oil production facility \6\) that is either: A drilling, 
production or workover facility, including a mobile or portable 
facility, that is offshore or that has an offshore component, or an 
onshore facility required to have and submit an FRP, that becomes 
operational after November 10, 2010, that requires the owner or 
operator to prepare and implement an SPCC Plan before beginning 
operations.
---------------------------------------------------------------------------

    \6\ On December 5, 2008 (73 FR 74236), EPA finalized an 
amendment to allow a new oil production facility (i.e., one that 
becomes operational after the compliance date) a period of six 
months after the start of operations to prepare and implement an 
SPCC Plan.
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    <bullet> Incorporates language under the current Sec.  112.3(c) 
provision to maintain the existing compliance date for mobile or 
portable facilities that fall within this subset of facilities (such as 
a barge mounted offshore drilling or workover rig), and maintains the 
language that allows mobile or portable facilities to prepare a general 
Plan.

C. Oil Production Facilities Beginning Operations After the Compliance 
Date

    The Agency is amending Sec.  112.3(b)(2) to distinguish the two 
separate compliance dates that would apply to oil production facilities 
that become operational after the compliance dates. The Agency is also 
moving this provision to Sec.  112.3(b). The new Sec.  112.3(b) 
amendments:
    <bullet> Maintain the existing compliance date for any oil 
production facility that is offshore or that has an offshore component, 
or any onshore oil production facility required to have and submit an 
FRP, that becomes operational after November 10, 2010, and could 
reasonably be expected to have a discharge as described in Sec.  
112.1(b), that requires the owner or operator to prepare and implement 
a Plan within six months after beginning operations.
    <bullet> Amend the compliance date for any onshore oil production 
facility (i.e., one that does not have an offshore component and is not 
required to have and submit an FRP) that becomes operational after 
November 10, 2011, and could reasonably be expected to have a discharge 
as described in Sec.  112.1(b), that requires the owner or operator to 
prepare and implement a Plan within six months after beginning 
operations.

D. Delay of Compliance Date for Facilities Affecting Milk and Milk 
Product Containers, Associated Piping and Appurtenances

    The Agency is delaying the compliance date by which the owner or 
operator of a facility must address milk and milk product containers, 
associated piping and appurtenances that are constructed according to 
the current applicable 3-A Sanitary Standards, and subject to the 
current applicable Grade ``A'' PMO or a State dairy regulatory 
requirement equivalent to the current applicable PMO. The Agency is 
taking this action for facilities that would be affected by any final 
determination on the proposed rule to exempt these containers from the 
SPCC requirements (74 FR 2461, January 15, 2009). The date

[[Page 63098]]

by which a facility owner or operator must comply with SPCC 
requirements for these milk and milk product containers is delayed by 
one year from the effective date of a final rule specifically 
addressing these milk and milk product containers, associated piping 
and appurtenances, or as specified by a rule that otherwise establishes 
a new compliance date for these facilities. The Agency will establish 
the new compliance date and publish it in the Federal Register as part 
of any final action on the proposed exemption.
    The delay for these facilities provides the owner or operator the 
opportunity to fully understand any new regulatory amendments for milk 
and milk product containers, associated piping and appurtenances. 
Today's rule amends Sec.  112.3(c) to:

<bullet> Delay the compliance date by which the owner or operator of a 
facility must address milk and milk product containers, associated 
piping and appurtenances that are constructed according to the current 
applicable 3-A Sanitary Standards, and subject to the current 
applicable Grade ``A'' PMO or a State dairy regulatory requirement 
equivalent to the current applicable PMO:
    [cir] During the delay, the owner or operator of the facility does 
not include milk and milk product containers as described above when 
either determining the aggregate facility oil storage capacity or as 
part of the facility's SPCC Plan.
<bullet> Require that all other oil storage containers at the facility 
(excluding milk and milk product containers as described above) be 
addressed in the SPCC Plan by November 10, 2011 when the facility has 
an aboveground oil storage capacity (excluding the capacity of these 
milk and milk product containers) greater than 1,320 U.S. gallons or a 
completely buried storage capacity greater than 42,000 U.S. gallons. A 
facility that has milk and milk product containers, associated piping 
and appurtenances as described above, that:
    [cir] Began operating before the August 16, 2002 effective date of 
the July 2002 SPCC rule amendments (67 FR 47042) will have to maintain 
the existing SPCC Plan for any other oil container at the facility, and 
amend it to ensure compliance with the SPCC rule requirements to 
address these other oil containers otherwise subject to the SPCC 
requirements by November 10, 2011;
    [cir] Began operating after August 16, 2002. but before November 
10, 2011, will have to prepare and implement an SPCC Plan for the 
facility to address any other oil containers at the facility otherwise 
subject to the SPCC requirements by November 10, 2011; and
    [cir] Begins operating after November 10, 2011 will have to prepare 
and implement a Plan before starting operations to address any other 
oil containers at the facility otherwise subject to the SPCC 
requirements.

E. Summary of Comments and Response

    The Agency solicited comments on the proposed compliance date 
extension by which owners and operators would be required to prepare, 
amend, and implement SPCC Plans in accordance with the amendments to 
the SPCC rule. The Agency also discussed an alternative of a shorter 
compliance date extension, such as either six or nine months (either 
May 10, 2011 or August 10, 2011).
    In addition, the Agency solicited comments on the proposed 
exceptions to the compliance date extension: Requiring drilling, 
production or workover facilities that are offshore or that have an 
offshore component, or onshore facilities that are required to have and 
submit an FRP, to comply by the current compliance date of November 10, 
2010.
    Furthermore, the Agency also solicited comments on the proposed 
delay of the compliance date by which owners and operators of 
facilities that have milk containers, associated piping and 
appurtenances would be required to prepare, amend, and implement SPCC 
Plans in accordance with amendments to the SPCC rule.
    The Agency received 34 comments on the proposed rule. The 
discussion below summarizes and responds to the major comments 
received. A more complete response to comments can be found in the 
docket for this rulemaking, EPA-HQ-OPA-2009-0880.
Comments
    Comments that support an extension of the compliance date. The 
majority of comments supported the Agency's proposal to extend the 
compliance dates in Sec. 112.3 for certain facilities. They agreed with 
the Agency that an extension of the compliance date was necessary to 
allow owners and operators sufficient time to amend and implement their 
SPCC Plans. Of those that supported an extension of the compliance 
dates, some comments agreed with extending the compliance dates as 
proposed. Other comments supported an extension, but did not agree with 
the length of the extension proposed by the Agency, arguing for 
additional time. These requests cited the extent of modifications 
necessary at facilities; the need to obtain the services of 
Professional Engineers (PE); the time for EPA and other stakeholders to 
conduct outreach; the need for EPA to complete further regulatory 
clarifications on the definition of oil; finalize clarification on 
jurisdictional issues between EPA and the Department of Transportation 
(DOT); and revise the SPCC Guidance for Regional Inspectors to help 
stakeholders better understand the regulatory requirements and the 
December 2008 and November 2009 amendments. Some comments indicated 
that the alternative approach to consider a shorter compliance date 
extension, such as either six or nine months, would not be appropriate.
    Comment relating to eligibility of the compliance date. One comment 
raised concerns with a footnote in the preamble of the proposed rule 
that stated, ``[t]o be eligible for the compliance extension, owners or 
operators of facilities in operation before August 16, 2002 must 
continue to maintain their existing SPCC Plans.''
    Comments pertaining to the exceptions to the compliance date 
extension. Several comments supported or took no position on the 
exception to the compliance date for drilling, production or workover 
facilities that are offshore or that have an offshore component, or 
onshore facilities required to have and submit FRPs. One comment, 
however, opposed the exception for onshore facilities required to have 
and submit FRPs, arguing that these facilities have always been 
included in compliance date extensions in the past, and that this time 
should be no exception. The comment further indicated that FRP-
regulated facilities have EPA-approved FRPs that are in place to 
address the Agency's concern that these facilities have the potential 
to cause substantial harm if a discharge were to occur. Finally, FRP 
facilities are large and complex operations that require additional 
time to come into compliance and therefore these facilities should be 
eligible for the one-year extension.
    Comments that support a delay of the compliance date for facilities 
with milk containers that meet specific requirements. Several comments 
expressed support for delaying the compliance date for facilities with 
milk containers, associated piping and appurtenances until one year 
after EPA finalizes a rule for these facilities. Two comments requested 
that EPA clarify that the extension and future exemption will apply to 
milk and milk products,

[[Page 63099]]

including but not limited to such products as cheese, cream, yogurt and 
ice cream mix. A number of comments indicated that the two different 
compliance deadlines for dairy facilities based on their start date are 
unnecessarily confusing and complex. The comments specifically cited 
confusion with how the compliance date applies based on when a facility 
begins operating and whether they must maintain and amend an SPCC Plan 
or prepare a new SPCC Plan. The organizations requested that EPA extend 
the compliance date to one year after finalization of the bulk milk 
storage exemption to all facilities, regardless of start date. 
Additionally, comments requested clarification on how the compliance 
date applies to facilities with both petroleum and bulk milk storage. 
Comments also requested that EPA take final action on the proposal to 
exempt milk storage containers, associated piping, and appurtenances 
from the SPCC rule.
Response to Comments
    Response to comments that support an extension of the compliance 
date. EPA agrees with the comments that an extension of the compliance 
date for certain facilities is necessary because it provides the owner 
or operator of a facility the opportunity to fully understand the 
regulatory amendments offered by the revisions to the SPCC rule 
promulgated on December 5, 2008 (73 FR 74236) and November 13, 2009 (74 
FR 58784). Furthermore, this extension will allow the regulated 
community time to understand all of the regulatory amendments offered 
by revisions to the SPCC rule promulgated since July 2002. Therefore, 
the Agency is promulgating a one-year extension of the compliance dates 
for certain facilities, but is excluding from the extension drilling, 
production and workover facilities that are offshore or that have an 
offshore component, or onshore facilities that are required to have and 
submit an FRP. EPA believes that a one-year extension of the compliance 
dates to November 10, 2011 is appropriate for certain facilities for a 
number of reasons, particularly since the owners and operators of SPCC-
regulated facilities have had at least a year to understand the final 
SPCC amendments.
    The SPCC compliance dates have been delayed since the promulgation 
of amendments in July 2002; during this time, new facilities (those 
that have become operational after the effective date of the July 2002 
amendments) have not yet been required to prepare and implement an SPCC 
Plan. Therefore, EPA believes that any compliance date beyond the 
extension finalized in this action would be inappropriate and not 
environmentally protective.
    Facilities in operation prior to the effective date of the July 
2002 amendments are required to maintain their SPCC Plans and have had 
ample time to schedule and conduct facility modifications (as 
necessary) to comply with these amendments. Additionally, because the 
SPCC amendments published in December 2008 and November 2009 primarily 
streamlined the rule requirements, facilities should not require 
extensive modifications in order to comply with these regulatory 
amendments.
    Since promulgating the July 2002 amendments to the SPCC rule, the 
Agency has and will continue to provide outreach and compliance 
assistance to SPCC regulated facilities so that a compliance extension 
for certain facilities to November 10, 2011 should be sufficient. The 
Agency does not believe ongoing outreach activities; updates to 
existing guidance documents; further regulatory clarifications; or 
development of new guidance or jurisdictional clarifications between 
EPA and other federal agencies are a basis for further extending the 
compliance date. EPA intends to continue to conduct outreach and 
provide guidance and clarification on the SPCC requirements (as 
appropriate), but does not believe that facilities should wait to amend 
or prepare and implement their SPCC Plans because these are ongoing 
activities.
    EPA also does not agree that the extension or additional time for 
compliance should be provided to revise the SPCC Guidance for Regional 
Inspectors. While EPA plans to revise the guidance document, most of 
the modifications to the SPCC regulation are already explained and 
discussed in the preamble to the final rules. Thus, there are very few 
necessary revisions to the guidance to address any new regulatory 
burden, as the past several actions on the SPCC rule were for the 
purposes of regulatory streamlining.\7\ EPA did not propose an 
extension to the compliance date with a rationale based on completion 
of the guidance for the reasons stated above.
---------------------------------------------------------------------------

    \7\ EPA intends to issue revisions to the SPCC Guidance for 
Regional Inspectors that address changes made to the SPCC rule, 
consistent with the December 2006, December 2008, and November 2009 
regulatory amendments (71 FR 77266, December 26, 2006; 73 FR 74236, 
December 5, 2008; 74 FR 58784, November 13, 2009). The guidance 
document is designed to provide more detail about the rule's 
applicability, to clarify the role of the inspector in the review 
and evaluation of a facility owner or operator's compliance with the 
performance-based SPCC requirements, and to provide a consistent 
national policy on several SPCC-related issues. EPA welcomes 
comments from the regulated community and the public on the guidance 
document at any time. Instructions for submitting comments are 
provided on the EPA Office of Emergency Management Web site at 
http://www.epa.gov/emergencies.
---------------------------------------------------------------------------

    The Agency did not receive any comments supporting a shorter 
extension to the compliance date, and thus, has decided not to 
promulgate an amended compliance date for certain facilities to either 
of the alternative shorter time periods offered for comment (either May 
10, 2011 or August 10, 2011). The Agency recognizes that the owner or 
operator of a regulated facility needs adequate time to comply with the 
SPCC rule following amendments to the regulation. EPA recognizes that 
any timeframe shorter than one year from the current compliance date 
may not allow sufficient time for those facilities for which EPA is 
granting a compliance date extension to fully understand and comply 
with all of the recently promulgated SPCC amendments or hire 
Professional Engineers. A one year timeframe also accommodates seasonal 
considerations for various industries. Therefore, the Agency is 
promulgating a one-year compliance date extension to allow certain 
facilities time to prepare, amend, and implement an SPCC Plan following 
recent amendments to the SPCC rule.
    Response to the comment relating to eligibility of the compliance 
date. EPA does not agree with the comment that suggests that footnote 
<greek-i>3 in the proposed rule that clarifies how the compliance date 
extension applies to facilities in operation prior to August 16, 2002 
is incorrect. EPA established initial compliance dates in the July 2002 
final rule (67 FR 47042) and clarified in the preamble how the 
compliance dates apply to facilities in operation prior to the 
effective date of the rule (see 67 FR 47082, July 17, 2002). The 
examples provided in the July 2002 preamble were consistent with and 
illustrated the accompanying regulatory text that established the 
initial compliance dates. The Agency has indicated in each Federal 
Register notice announcing the subsequent extension to the compliance 
dates \8\ that facilities in operation prior to August 16, 2002 must 
maintain an SPCC Plan. If a facility has no SPCC Plan to maintain, then 
the date by which the facility has to amend the Plan

[[Page 63100]]

to comply with the SPCC regulatory revisions promulgated since 2002 
does not apply and the owner or operator is not eligible for the 
extension. The footnote discussed here is wholly consistent with the 
Agency's preamble examples in the July 2002 final rule and the 
regulatory text extending compliance dates since 2002.
---------------------------------------------------------------------------

    \8\ The dates for complying with amendments to the SPCC 
regulations have been amended a number of times: On January 9, 2003 
(68 FR 1348), on April 17, 2003 (68 FR 18890), on August 11, 2004 
(69 FR 48794), on February 17, 2006 (71 FR 8462), on May 16, 2007 
(72 FR 27444), and again on June 19, 2009 (74 FR 29136).
---------------------------------------------------------------------------

    Response to the comments pertaining to the exceptions to the 
compliance date extension. EPA does not agree that onshore facilities 
that are required to have and submit FRPs should be eligible for the 
one year extension. The Agency is concerned with the threat for 
immediate environmental impacts resulting from oil spills from these 
facilities because of their large oil storage capacities and their 
potential to cause substantial harm in the event of a discharge as 
identified under the FRP regulation (40 CFR 112.20). The comment 
correctly indicates that many of these facilities are implementing FRPs 
that are approved by the Agency; however, these plans serve to identify 
response capability in the event of a discharge to navigable waters or 
adjoining shorelines and do not specifically include requirements that 
serve to prevent these discharges. For example, implementation of a 
tank integrity testing program and brittle fracture evaluations are 
SPCC requirements and not FRP requirements. Many of the SPCC 
requirements promulgated since July 2002 serve to enhance prevention of 
oil spills and EPA does not believe it is environmentally protective to 
extend the date by which these requirements are addressed and 
implemented at FRP-regulated facilities.
    The Agency recognizes that some facilities excluded from the 
extension of the compliance date (i.e., drilling, production or 
workover facilities that are offshore or that have an offshore 
component, or an onshore facility that is required to have and submit 
an FRP) may require additional time to amend or prepare their SPCC 
Plans as a result of either non-availability of qualified personnel, or 
delays in construction or equipment delivery beyond the control and 
without the fault of the owner or operator. If so, the owner or 
operator of the facility may submit a written request for additional 
time to amend or prepare an SPCC Plan to the Regional Administrator in 
accordance with Sec.  112.3(f).
    Response to comments that support a delay of the compliance date 
for facilities with milk containers that meet specific requirements. 
EPA agrees with comments that supported a delay of the compliance date 
by which facilities must address milk containers, associated piping and 
appurtenances that are constructed according to the current applicable 
3-A Sanitary Standards, and subject to the current applicable Grade 
``A'' PMO or a State dairy regulatory requirement equivalent to the 
current applicable PMO. The Agency is moving forward to take final 
action on the proposed rulemaking that addresses those milk containers 
as expeditiously as possible. Additionally, the Agency is considering 
whether to exempt milk product containers, piping and appurtenances 
that are subject to the same 3-A Sanitary Standards and Grade ``A'' PMO 
specified for milk containers, associated piping and appurtenances. 
Therefore, the Agency is clarifying that the delay applies to both milk 
and milk product containers, associated piping and appurtenances 
constructed according to the current applicable 3-A Sanitary Standards, 
and subject to the current applicable Grade ``A'' PMO or a State dairy 
regulatory requirement equivalent to the current applicable PMO. The 
compliance date delay by which the owner or operator of a facility must 
address milk and milk product containers described above will provide 
time to complete this action.
    EPA agrees that a single date by which the owners or operators of 
facilities must address milk and milk product containers, associated 
piping and appurtenances that are constructed according to the current 
applicable 3-A Sanitary Standards, and subject to the current 
applicable Grade ``A'' PMO or a State dairy regulatory requirement 
equivalent to the current applicable PMO in the facility's SPCC Plan, 
would offer clarity. A date will be established in a FR notice in the 
future and will be one year from the effective date of a final rule 
addressing the SPCC requirements specifically for these milk and milk 
product containers, associated piping and appurtenances, or as 
specified by a rule that otherwise establishes a compliance date for 
these facilities. During the delay, the owner or operator of the 
facility excludes milk and milk product containers, associated piping 
and appurtenances that are constructed according to the current 
applicable 3-A Sanitary Standards, and subject to the current 
applicable Grade ``A'' PMO or a State dairy regulatory requirement 
equivalent to the current applicable PMO from the facility's aggregate 
oil storage capacity calculations, and does not include these 
containers in the SPCC Plan.
    However, when there are other oil storage containers (such as 
petroleum containers) at a facility that has milk and milk product 
containers, associated piping and appurtenances as described above and 
the facility meets the aggregate oil storage capacity thresholds of 
Sec.  112.1 \9\ (excluding the capacity of the milk and milk product 
containers) then the owner or operator of the facility must maintain 
and amend, or prepare an SPCC Plan to address these other oil 
containers at the facility in accordance with Sec.  112.3(a)(1) by 
November 10, 2011.
---------------------------------------------------------------------------

    \9\ The facility has an aboveground oil storage capacity greater 
than 1,320 U.S. gallons or the completely buried storage capacity is 
greater than 42,000 U.S. gallons.
---------------------------------------------------------------------------

6. Other Considerations
    If an owner or operator of an SPCC-regulated facility requires 
additional time to comply with the SPCC rule, he may submit a written 
request to the Regional Administrator in accordance with Sec.  
112.3(f). Such requests may be granted if the Regional Administrator 
finds that the owner or operator cannot comply with all SPCC 
requirements by the compliance date as a result of either non-
availability of qualified personnel, or delays in construction or 
equipment delivery beyond his control and without the fault of such 
owner or operator.
    It should be noted that these compliance date amendments would 
affect only the requirements of the July 2002, December 2006, December 
2008, and November 2009 SPCC rule amendments (67 FR 47042, July 17, 
2002; 71 FR 77266, December 26, 2006; 73 FR 74236, December 5, 2008; 
and 74 FR 29136, November 13, 2009) that are new (i.e., requirements 
that did not exist or were not in effect prior to the 2002 amendments) 
or more stringent compliance obligations to those that were in effect 
in the 1973 SPCC rule. Provisions that provide regulatory relief to 
facilities are applicable as of the effective date of the amendment and 
would not require revisions to existing Plans ``to ensure compliance'' 
(see Sec.  112.3). However, the facility owner or operator must amend 
the SPCC Plan to include new or more stringent provisions by the 
compliance date.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under the terms of Executive Order 12866 (58 FR 51735, October 4, 
1993), this action has been determined to be a ``significant regulatory 
action.'' This rule was submitted to the Office of Management and 
Budget (OMB) for review. Any changes made in response to OMB's 
recommendations have been

[[Page 63101]]

documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This rule would merely extend the compliance date for certain 
facilities subject to the rule. The Office of Management and Budget 
(OMB) has previously approved the information collection requirements 
contained in the existing regulations at 40 CFR part 112 under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2050-0021. The OMB control numbers for 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act 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 that is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's 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 proposed 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 rule extends the compliance date in Sec.  112.3(a)(1) for most 
facilities by one year and delays the compliance date in Sec.  112.3(c) 
by which facilities must address milk and milk product containers, 
associated piping and appurtenances that meet certain conditions by one 
year from the effective date of a final rule addressing the SPCC 
requirements specifically for these containers, or as specified by a 
rule that otherwise establishes a compliance date for these facilities. 
The changes in the final November 2009 amendments were very limited, 
and the December 2008 amendments offered compliance options that 
streamlined and tailored the regulatory requirements. By simply 
extending the compliance date for most facilities, today's rule will 
defer the regulatory burden for all affected entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The 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 or 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 rule simply extends the 
compliance date for most facilities subject to the rule.

E. Executive Order 13132: Federalism

    This rule 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. Under CWA section 311(o), States 
may impose additional requirements, including more stringent 
requirements, relating to the prevention of oil discharges to navigable 
waters. EPA encourages States to supplement the Federal SPCC regulation 
and recognizes that some States have more stringent requirements (56 FR 
54612, October 22, 1991). This rule does not preempt State law or 
regulations. Thus, Executive Order 13132 does not apply to this rule.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). The rule does 
not significantly or uniquely affect communities of Indian tribal 
governments. Thus, Executive Order 13175 does not apply to this action.

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

    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 present a 
disproportionate risk to children.

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

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. The 
overall effect of this action is to defer the regulatory burden on 
facility owners or operators subject to its provisions.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This final rulemaking involves technical standards. EPA proposes to 
use the 3-A Sanitary Standards, ``Storage Tanks for Milk and Milk 
Products'', 3A 01-08, November 2001, developed by 3-A Sanitary 
Standards, Inc. A copy of these standards may be

[[Page 63102]]

obtained from the 3-A Sanitary Standards online store at http://www.techstreet.com/3Agate.html; by contacting the organization at 6888 
Elm Street, Suite 2D, McLean, Virginia 22101; by phone at (703) 790-
0295; or by facsimile at (703) 761-6284. EPA is finalizing a delay of 
the compliance date to the SPCC rule, by which the owner or operator of 
a facility that is subject to the SPCC requirements, must address milk 
and milk product storage containers and associated piping and 
appurtenances constructed in accordance with 3-A Sanitary Standards, 
and subject to the current applicable Grade ``A'' PMO or a State dairy 
regulatory requirement equivalent to the current applicable PMO.

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 rule 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. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2) and will be effective on October 14, 2010.

List of Subjects in 40 CFR Part 112

    Environmental protection, Milk, Milk product, Oil pollution, Oil 
spill response, Penalties, Reporting and recordkeeping requirements.

    Dated: October 7, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons set forth in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:

PART 112--OIL POLLUTION PREVENTION

0
1. The authority citation for part 112 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.


0
2. Section 112.3 is amended by revising paragraphs (a), (b), and (c) to 
read as follows:


Sec.  112.3  Requirement to prepare and implement a Spill Prevention, 
Control, and Countermeasure Plan.

* * * * *
    (a)(1) Except as otherwise provided in this section, if your 
facility, or mobile or portable facility, was in operation on or before 
August 16, 2002, you must maintain your Plan, but must amend it, if 
necessary to ensure compliance with this part, and implement the 
amended Plan no later than November 10, 2011. If such a facility 
becomes operational after August 16, 2002, through November 10, 2011, 
and could reasonably be expected to have a discharge as described in 
Sec.  112.1(b), you must prepare and implement a Plan on or before 
November 10, 2011. If such a facility (excluding oil production 
facilities) becomes operational after November 10, 2011, and could 
reasonably be expected to have a discharge as described in Sec.  
112.1(b), you must prepare and implement a Plan before you begin 
operations. You are not required to prepare a new Plan each time you 
move a mobile or portable facility to a new site; the Plan may be 
general. When you move the mobile or portable facility, you must locate 
and install it using the discharge prevention practices outlined in the 
Plan for the facility. The Plan is applicable only while the mobile or 
portable facility is in a fixed (non-transportation) operating mode.
    (2) If your drilling, production or workover facility, including a 
mobile or portable facility, is offshore or has an offshore component; 
or your onshore facility is required to have and submit a Facility 
Response Plan pursuant to 40 CFR 112.20(a), and was in operation on or 
before August 16, 2002, you must maintain your Plan, but must amend it, 
if necessary to ensure compliance with this part, and implement the 
amended Plan no later than November 10, 2010. If such a facility 
becomes operational after August 16, 2002, through November 10, 2010, 
and could reasonably be expected to have a discharge as described in 
Sec.  112.1(b), you must prepare and implement a Plan on or before 
November 10, 2010. If such a facility (excluding oil production 
facilities) becomes operational after November 10, 2010, and could 
reasonably be expected to have a discharge as described in Sec.  
112.1(b), you must prepare and implement a Plan before you begin 
operations. You are not required to prepare a new Plan each time you 
move a mobile or portable facility to a new site; the Plan may be 
general. When you move the mobile or portable facility, you must locate 
and install it using the discharge prevention practices outlined in the 
Plan for the facility. The Plan is applicable only while the mobile or 
portable facility is in a fixed (non-transportation) operating mode.
    (b) If your oil production facility as described in paragraph 
(a)(1) of this section becomes operational after November 10, 2011, or 
as described in paragraph (a)(2) of this section becomes operational 
after November 10, 2010, and could reasonably be expected to have a 
discharge as described in Sec.  112.1(b), you must prepare and 
implement a Plan within six months after you begin operations.
    (c) If your facility has milk and milk product containers, 
associated piping and appurtenances constructed according to current 
applicable 3-A Sanitary Standards, and subject to current applicable 
Grade ``A'' Pasteurized Milk Ordinance (PMO) or a State dairy 
regulatory requirement equivalent to current applicable PMO, do not 
include these milk and milk product containers when either determining 
the aggregate oil storage capacity of your facility or as part of your 
Plan. The date in paragraph (a)(1), by which you must comply with the 
provisions of this part for these milk and milk product containers, is 
delayed by one year from the effective date of a final rule addressing 
these milk and milk product containers, or until a rule that otherwise 
establishes a compliance date. You must maintain and amend, or prepare 
your Plan to address any other oil containers at the facility otherwise 
subject to the requirements of this part by the compliance date in 
paragraph (a)(1) of this section if your facility

[[Page 63103]]

meets any of the aggregate oil storage capacity thresholds of Sec.  
112.1 of this part.
* * * * *
[FR Doc. 2010-25899 Filed 10-13-10; 8:45 am]
BILLING CODE 6560-50-P


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