29136 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

excluded, under figure 2–1, paragraph 

(34)(g) of the Instruction because it 

involves the establishment of a 

temporary safety zone. An 

environmental analysis checklist and a 

categorical exclusion determination are 

available in the docket where indicated 

under ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add new temporary § 165.T09– 

0477 as follows: 

§ 165.T09–0477 Safety Zone; Sigma 

Gamma Fireworks; Lake St. Clair; Grosse 

Pointe Farms, MI. 

(a) Location. The following area is a 

temporary safety zone: all U.S. waters of 

Lake St. Clair, off Ford’s Cove, within a 

300-yard radius of the fireworks launch 

site located at position 42°27′ N, 082°52′ 

W. All geographic coordinates are North 

American Datum of 1983 (NAD 83). 

(b) Effective Period. This regulation is 

effective and will be enforced from 9 

p.m. until 10 p.m. on June 22, 2009. 

(c) Regulations. (1) In accordance with 

the general regulations in section 165.23 

of this part, entry into, transiting, or 

anchoring within this safety zone is 

prohibited unless authorized by the 

Captain of the Port Detroit, or his 

designated on-scene representative. 

(2) This safety zone is closed to all 

vessel traffic, except as may be 

permitted by the Captain of the Port 

Detroit or his designated on-scene 

representative. 

(3) The ‘‘on-scene representative’’ of 

the Captain of the Port is any Coast 

Guard commissioned, warrant, or petty 

officer who has been designated by the 

Captain of the Port to act on his behalf. 

The on-scene representative of the 

Captain of the Port will be aboard either 

a Coast Guard or Coast Guard Auxiliary 

vessel. The Captain of the Port or his 

designated on scene representative may 

be contacted via VHF Channel 16. 

(4) Vessel operators desiring to enter 

or operate within the safety zone shall 

contact the Captain of the Port Detroit 

or his on-scene representative to obtain 

permission to do so. Vessel operators 

given permission to enter or operate in 

the safety zone must comply with all 

directions given to them by the Captain 

of the Port or his on-scene 

representative. 

Dated: June 3, 2009. 

F.M. Midgette, 

Captain, U.S. Coast Guard, Captain of the 

Port Detroit. 

[FR Doc. E9–14389 Filed 6–18–09; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 112 

[EPA–HQ–OPA–2008–0546; FRL–8919–9] 

RIN 2050–AG49 

Oil Pollution Prevention; NonTransportation Related Onshore and 

Offshore Facilities 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is amending the dates by 

which facilities must prepare or amend 

their Spill Prevention, Control, and 

Countermeasure (SPCC) Plans, and 

implement those Plans to November 10, 

2010. The Agency is also establishing 

November 10, 2010 as the date for farms 

to prepare or amend their Spill 

Prevention, Control, and 

Countermeasure Plans (SPCC Plans), 

and implement those Plans. 

DATES: This final rule is effective June 

19, 2009. 

ADDRESSES: The public docket for this 

rulemaking, Docket ID No. EPA–HQ– 

OPA–2008–0546, contains the 

information related to this rulemaking, 

including the response to comment 

document. 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 

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 

(principe.vanessa@epa.gov) or Mark W. 

Howard at (202) 564–1964 

(howard.markw@epa.gov), U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460–0002, Mail Code 

5104A. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

Does This Action Apply to Me? 

Industry sector NAICS code 

Oil Production ...................................................................................................................................................................... 211111 

Farms ................................................................................................................................................................................... 111, 112 

Electric Utility Plants ............................................................................................................................................................ 2211 

Petroleum Refining and Related Industries ......................................................................................................................... 324 

Chemical Manufacturing ...................................................................................................................................................... 325 

Food Manufacturing ............................................................................................................................................................. 311, 312 

Manufacturing Facilities Using and Storing Animal Fats and Vegetable Oils .................................................................... 311, 325 

Metal Manufacturing ............................................................................................................................................................ 331, 332 

Other Manufacturing ............................................................................................................................................................ 31–33 

Real Estate Rental and Leasing .......................................................................................................................................... 531–533 


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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29137 

Industry sector NAICS code 

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 Administration) ................................................................................................................... 811–813 

Petroleum Bulk Stations and Terminals .............................................................................................................................. 4247 

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 

Warehousing and Storage ................................................................................................................................................... 493 

Religious Organizations ....................................................................................................................................................... 813110 

Military Installations ............................................................................................................................................................. 928110 

Pipelines .............................................................................................................................................................................. 4861, 48691 

Government ......................................................................................................................................................................... 92 

The list of potentially affected entities 

in the above table may not be 

exhaustive. The Agency’s goal is to 

provide a guide for readers to consider 

regarding entities that potentially could 

be affected by this action. However, this 

final rule may affect other entities not 

listed in this table. 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. 

II. 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. 

III. Background 

On July 17, 2002, the Agency 

published a final rule that amended the 

Spill Prevention, Control, and 

Countermeasure (SPCC) regulations (67 

FR 47042). The rule became effective on 

August 16, 2002. The final rule included 

compliance dates in § 112.3 for 

preparing, amending, and implementing 

SPCC Plans. Since that time, the 

compliance dates were amended 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), and on May 16, 2007 

(72 FR 27444). 

On December 26, 2006, EPA finalized 

a set of SPCC amendments that address 

certain targeted areas of the SPCC 

requirements, based on issues and 

concerns raised by the regulated 

community (71 FR 77266). In addition, 

while EPA worked to determine if the 

agriculture sector warranted specific 

consideration under the SPCC rule, it 

extended the compliance dates for 

preparing, or amending and 

implementing SPCC Plans for farms 

subject to SPCC (71 FR 77266, December 

26, 2006). Under the provisions in 

§ 112.3(a) and (b), the compliance dates 

for farms were extended until the 

effective date of a rule that establishes 

the SPCC requirements specifically for 

this sector or that otherwise establishes 

dates by which farms must comply with 

the provisions of this part. This final 

rule establishes such dates. 

On December 5, 2008 (73 FR 74236), 

EPA amended the SPCC rule to provide 

increased clarity, tailor requirements to 

particular industry sectors (including 

farms), and streamline certain 

requirements for a facility owner or 

operator subject to the rule. The 

effective date of the December 2008 

rulemaking was delayed until April 4, 

2009, 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) (74 FR 5900, February 3, 

2009). The Agency took this action to 

ensure that the rule properly reflects 

consideration of all relevant facts. EPA 

requested public comment on the delay 

of the effective date and its duration, 

and on the regulatory amendments 

contained in the final rule. EPA 

received numerous comments on these 

regulatory amendments. Many 

comments offered recommendations 

related to specific amendments, such as 

the optional approaches for produced 

water containers and the criteria for 

qualified oil production facilities. Many 

other amendments received no 

comment or received support and 

ultimately may not change. Consistent 

with the January 21, 2009 OMB 

memorandum ‘‘Implementation of 

Memorandum Concerning Regulatory 

Review,’’ the EPA Administrator has 

chosen the December 2008 rule for 

additional assessment; therefore, EPA 

must carefully consider the issues raised 

in these comments. Because EPA could 

not adequately address the comments 

before the April 4, 2009 effective date, 

it has again delayed the effective date of 

the final rule to allow sufficient time to 

review and address these comments. 

The December 2008 SPCC amendments 

will become effective on January 14, 

2010 (74 FR 14736, April 1, 2009). 

On November 26, 2008 (73 FR 72016), 

EPA proposed to amend the dates by 

which facilities must prepare or amend 

their SPCC Plans, and implement those 

Plans, and proposed to establish dates 

for farms to prepare or amend their 

SPCC Plans, and implement those Plans. 

Different dates were proposed for farms 

and oil production facilities that meet 

the qualified facilities criteria in 

§ 112.3(g). Although the Agency 

finalized a compliance date extension in 

January 2009, that action was never 

published in the Federal Register. This 

notice finalizes the November 2008 

proposal to extend the compliance dates 

in § 112.3. This compliance date 

extension was intended to provide the 

owner or operator of a facility the 

opportunity to fully understand the 

regulatory amendments offered by all of 

the amendments to the SPCC rule since 

July 2002. 

IV. Summary of This Final Rule 

This final rule amends the dates in 

§ 112.3(a), (b) and (c) by which facilities, 

including farms, must prepare or amend 

their SPCC Plans, and implement those 

Plans. The revision also includes a 

technical correction in § 112.3(a)(1) to 


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1As stated in the rule, a facility owner or operator 

must maintain its existing SPCC Plan. A facility 

owner or operator who wants to take advantage of 

the July 2002 and December 2006 regulatory 

changes may do so, but will need to modify the 

existing SPCC Plan accordingly. 

address a misspelling of the word 

‘‘must.’’ Under the amended § 112.3(a), 

the owner or operator of a facility that 

was in operation on or before August 16, 

2002, must maintain his SPCC Plan, 

make any necessary amendments to the 

Plan and fully implement it by 

November 10, 2010, while the owner or 

operator of a facility that came into 

operation after August 16, 2002, but 

before November 10, 2010, is required to 

prepare and implement an SPCC Plan 

on or before November 10, 2010. 

Under the amended § 112.3(b)(1), the 

owner or operator of an onshore or 

offshore facility that becomes 

operational after November 10, 2010, 

and could reasonably be expected to 

have a discharge as described in 

§ 112.1(b), must prepare and implement 

a Plan before beginning operations. The 

Agency is establishing the same 

compliance dates for farms as for all 

other facilities and thus, this rule 

amends the paragraphs in § 112.3 

specific to farms (§ 112.3(a)(2) and 

(b)(2)) to include the November 10, 2010 

compliance date. Additionally, the rule 

text in § 112.3(a)(2) and (b)(2) is revised 

to remove reference to ‘‘onshore 

facility’’ because this text is 

unnecessary. For simplicity, the rule 

text now references ‘‘a farm as defined 

in § 112.2.’’ 

Under amended § 112.3(c), an owner 

or operator of a mobile facility is 

required to maintain his SPCC Plan, but 

must make any necessary amendments 

and implement it on or before 

November 10, 2010. The owner or 

operator of an onshore or offshore 

mobile facility that becomes operational 

after November 10, 2010, and could 

reasonably be expected to have a 

discharge as described in § 112.1(b), 

must prepare and implement an SPCC 

Plan before beginning operations. 

The Agency believes that an extension 

of the compliance date is appropriate 

because it provides the owner or 

operator of a facility the opportunity to 

fully understand all of the regulatory 

amendments offered by revisions to the 

SPCC rule promulgated since July 

2002.1 This extension will allow the 

regulated community approximately 16 

months beyond the previous 

compliance date of July 1, 2009 to make 

changes to their facilities and to their 

SPCC Plans necessary to comply with 

the revised SPCC requirements. 

Furthermore, because EPA has not yet 

decided how to proceed on the 

December 2008 rule amendments, the 

Agency believes that this compliance 

date extension provides sufficient time 

for the Agency to review those 

comments and to promulgate any 

additional revisions that result from this 

review. The Agency expects to 

promulgate final revisions to the 

December 5, 2008 amendments, if any, 

in November of 2009 and is therefore 

choosing a compliance date that is 

approximately one year from the 

expected publication date of those 

revisions. 

The Agency also believes the 

compliance date for farms established in 

this notice is warranted for several 

reasons. The original compliance date 

extension for farms (71 FR 77266, 

December 26, 2006) allowed the Agency 

to conduct additional information 

collection and analyses to determine if 

differentiated SPCC requirements may 

be appropriate for farms. The Agency 

worked with the U.S. Department of 

Agriculture (USDA) to collect data to 

more accurately characterize oil 

handling at these facilities, thus 

allowing the Agency to better tailor and 

streamline the SPCC requirements to 

address the concerns of the farming 

sector; on December 5, 2008 (73 FR 

74236), EPA promulgated a final set of 

SPCC amendments that targeted certain 

SPCC requirements particularly relevant 

to farms. Given the delay in the effective 

date for the December 2008 

amendments, the compliance date 

amendment provides facilities the 

necessary time to fully understand the 

regulatory amendments, including the 

July 2002 and December 2006 SPCC 

amendments, in addition to those 

finalized on December 5, 2008. The final 

compliance date allows this sector 

sufficient time to make changes to their 

facilities and to their SPCC Plans 

necessary to comply with the revised 

requirements. 

The Agency believes that a single 

compliance date for all regulated 

facilities avoids potential confusion by 

an owner or operator when determining 

the date for compliance at his facility. 

In providing a single compliance date 

applicable to all sectors, EPA believes 

that facility owners and operators will 

have additional clarity which will result 

in increased compliance with the SPCC 

rule. However, 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 § 112.3(f). Such 

requests will 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. 

It should be noted that these 

compliance date amendments affect 

only requirements of the July 2002 and 

December 2006 SPCC rule amendments 

(July 17, 2002, 67 FR 47042; and 

December 26, 2006, 71 FR 77266) that 

impose new or more stringent 

compliance obligations than did the 

1973 SPCC rule. Provisions in these 

amendments that provide regulatory 

relief are not affected by these 

compliance date amendments because 

they would not require amendments to 

existing Plans ‘‘to ensure compliance’’ 

(see § 112.3). Provisions in these 

amendments that provide regulatory 

relief to facilities are applicable as of the 

effective date of the amendment. Once 

the December 2008 rule (December 5, 

2008, 73 FR 74236) becomes effective, 

the regulatory relief applies 

immediately but the facility owner or 

operator must amend the SPCC Plan to 

include more stringent provisions by the 

compliance date. This issue was 

discussed by the Agency in two 

previous extension notices on April 17, 

2003 (68 FR 18890, at 18892–18893), 

and on August 11, 2004 (69 FR 48794, 

at 48796). 

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. 

V. Response to Comment 

The Agency received approximately 

25 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– 

2008–0546. 

Comments. The majority of comments 

supported the Agency’s proposal to 

extend the compliance dates in § 112.3. 

They agreed with the Agency that the 

extension 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. 

These requests cited the extent of 


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2Based on the Congressional Review Act which 

requires that the Agency allow 60 days after 

promulgation of a major rule before it goes into 

effect, the Agency will need to promulgate any 

amendments to the December 2008 rule by 

November 2009. 

modifications necessary at facilities, the 

need to obtain the services of 

Professional Engineers (PE), and the 

need for EPA to revise the SPCC 

Guidance for Regional Inspectors to 

help stakeholders better understand the 

regulations and the December 2006 and 

December 2008 regulatory amendments. 

Specifically, a number of comments 

requested that the Agency extend the 

compliance date to December 5, 2009. 

These comments argued that, because 

the official promulgation of the rule 

occurred with its publication in the 

Federal Register on December 5, 2008, 

the one-year compliance period should 

be calculated from that date. 

A subset of comments also requested 

that the Agency reinstate a six-month 

interim period between the compliance 

dates for Plan amendment and 

implementation. Those comments 

requested that the date for 

implementing amended SPCC Plans be 

revised to include a six-month period 

after the date for Plan amendment. 

Thus, if the Agency extended the 

compliance date for one year for Plan 

amendment, comments suggested that 

the Agency provide an additional 6 

months to actually implement the Plan, 

for a total of 18 months. 

Some comments requested that the 

compliance date for oil production 

facilities that do not meet the qualified 

facilities criteria in § 112.3(g) be 

extended to December 5, 2010, to allow 

an additional year for two full years 

from publication of the final rule 

amendments in the Federal Register. 

These comments indicated that the 

November 20, 2009 date provides 

insufficient time to comply with the 

rule. 

Other comments objected to the 

Agency’s proposal of different 

compliance dates for qualified farms 

and qualified oil production facilities. 

Comments requested that the 

compliance dates for all farms and oil 

production facilities, whether they meet 

the qualified facilities criteria in 

§ 112.3(g) or not, be extended to 

November 20, 2013. Those comments 

stated that assigning differentiated 

compliance dates to different industries 

was unnecessary and that additional 

time was necessary to conduct outreach 

and compliance assistance to the 

regulated community. Some comments 

also stated that assigning differentiated 

compliance dates to qualified facilities 

and all other facilities within one 

industry caused confusion over the 

applicability of the rule. 

Response to comment. EPA agrees 

with comments that an extension of the 

compliance dates is necessary because it 

provides the owner or operator of a 

facility the opportunity to fully 

understand the regulatory amendments 

offered by revisions to the SPCC rule 

promulgated on December 5, 2008 (73 

FR 74236). The Agency expects to 

promulgate final revisions to the 

December 5, 2008 amendments, if any, 

in November of 2009 and is therefore 

choosing a compliance date that is 

approximately one year from the 

expected publication date of those 

revisions. This will allow the regulated 

community time to fully understand all 

of the regulatory amendments offered by 

revisions to the SPCC rule promulgated 

since July 2002. 

The Agency proposed a two-year and 

a five-year extension of the compliance 

dates for farms and oil production 

facilities, respectively, that meet the 

qualified facilities criteria in § 112.3(g). 

This was intended to allow additional 

time for EPA to partner with Federal 

and state agencies and industry 

stakeholders to conduct outreach and 

compliance assistance to these facilities. 

However, after reviewing comments and 

further considering the amendments 

that were recently promulgated in 

December 2008, EPA believes that an 

extension of the compliance dates to 

November 10, 2010 is appropriate for all 

facilities for a number of reasons. 

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 2006 and 

December 2008 were intended to 

streamline rule requirements, facilities 

should not require extensive 

modifications in order to comply with 

these regulatory amendments. 

Since promulgating the 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 to 

November 10, 2010 should be sufficient. 

The Agency does not believe that 

ongoing outreach activities or updates to 

guidance are a basis for further 

extending the compliance date. 

Finally, EPA provided an option to 

allow owners and operators of eligible 

facilities to self-certify their SPCC Plans 

in December 2006, thereby minimizing 

reliance on PEs to certify SPCC Plans. 

This should greatly reduce the 

scheduling problems associated with 

obtaining a PE to certify a facility’s 

SPCC Plan amendments. 

It should also be noted that 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 

§ 112.3(f). The Regional Administrator 

may authorize an extension of time for 

the owner or operator to prepare or 

amend and implement an SPCC Plan for 

the facility, when he 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. 

The Agency disagrees with those 

comments that suggest the compliance 

dates be amended to exactly correspond 

with the publication date of the final 

rule amendments in the Federal 

Register on December 5, 2008. Because 

EPA has delayed the effective date of 

the December 2008 rule amendments 

until January 14, 2010, the Agency 

believes that it will cause less confusion 

among the regulated community to 

extend the compliance date by one year 

beyond the approximate date when 

revisions, if any, to the December 2008 

amendments are promulgated.2

The Agency also disagrees with 

comments that requested that EPA 

incorporate a six-month period between 

the SPCC Plan preparation/amendment 

date and the SPCC Plan implementation 

date. In February 2006, the Agency 

eliminated the gap between SPCC Plan 

preparation/amendment and 

implementation to allow the owner or 

operator of a facility additional time to 

prepare or amend the SPCC Plan (71 FR 

8462, February 17, 2006). The Agency 

still believes that this approach provides 

added flexibility, given that owners and 

operators of regulated-facilities are not 

required to submit their SPCC Plans to 

the Agency at the time of Plan 

preparation or amendment. 

The Agency agrees, however, with 

comments that argued that the 


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29140 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

compliance dates should be extended 

beyond the proposed November 20, 

2009 date. 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. 

Therefore, the Agency has extended the 

compliance date to allow facilities time 

to prepare, amend, and implement an 

SPCC Plan following final Agency 

action on the SPCC rule. The Agency is 

working to promulgate any amendments 

to the December 2008 rule by November 

2009. 

The Agency also believes that this 

action is appropriate because it will 

provide the owner or operator of all 

facilities the opportunity to fully 

understand the regulatory amendments 

offered by revisions to the SPCC rule 

promulgated on December 5, 2008 (73 

FR 74236). EPA has not yet decided 

what changes, if any, to make to the 

December 2008 amendments. However, 

the Agency believes that a full year from 

the approximate date of promulgation of 

any revisions to the December 2008 

amendments provides sufficient time to 

review comments received on the 2008 

amendments and to promulgate any 

additional revisions that result from this 

review and still provide those 

potentially affected facilities ample time 

to come into compliance. 

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 

and December 2008 regulatory 

amendments (71 FR 77266, December 

26, 2006; 73 FR 74236, December 5, 

2008). 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. 

Finally, EPA agrees with those 

comments that objected to different 

compliance dates for certain sectors. 

The Agency agrees that providing one 

compliance date for all regulated 

facilities simplifies compliance outreach 

activities and avoids confusion for the 

regulated community. 

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 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. This 

final rule merely extends the 

compliance dates for facilities subject to 

the rule. However, the Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations (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. 

Small entity is defined as: (1) A small 

business as defined in the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201—the SBA 

defines small businesses by category of 

business using North American Industry 

Classification System (NAICS) codes, 

and in the case of farms and oil 

production facilities, which constitute a 

large percentage of the facilities affected 

by this rule, generally defines small 

businesses as having less than $500,000 

in revenues or 500 employees, 

respectively; (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. 

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 head 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 will defer the regulatory 

burden for small entities by extending 

the compliance dates in § 112.3. After 

considering the economic impacts of 

this rule on small entities, I certify that 

this rule will not have a significant 

economic impact on a substantial 

number of small 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 merely extends the compliance 

dates for facilities subject to the rule. 

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 final 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 


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Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 29141 

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 will 

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). This 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 (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. 

Further, we have concluded that this 

rule is not likely to have any adverse 

energy effects because this action is 

limited to an extension of the 

compliance date for the preparation of 

SPCC Plans and does not impact energy 

supply, distribution, or use. 

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, section 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 action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

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 final 

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 (CRA), 

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. Prior to publication 

of the final rule in the Federal Register, 

we will submit all necessary 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States. Under the CRA, 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). This rule 

will be effective June 19, 2009. 

List of Subjects in 40 CFR Part 112 

Environmental protection, Oil 

pollution, Penalties, Reporting and 

recordkeeping requirements. 

Dated: June 11, 2009. 

Lisa P. Jackson, 

Administrator. 

■ 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 

■ 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. 

Subpart A—[Amended] 

■ 2. Section 112.3 is amended by 

revising paragraphs (a)(1), (a)(2), (b)(1), 

(b)(2) and (c) to read as follows: 

§ 112.3 Requirement to prepare and 

implement a Spill Prevention, Control, and 

Countermeasure Plan. 

* * * * * 

(a)(1) If your onshore or offshore 

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 Plan no 

later than November 10, 2010. If your 

onshore or offshore facility becomes 

operational after August 16, 2002, 

through November 10, 2010, and could 

reasonably be expected to have a 

discharge as described in § 112.1(b), you 

must prepare and implement a Plan on 

or before November 10, 2010. 

(2) If your farm as defined in § 112.2 

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 Plan no later than 

November 10, 2010. If your farm 

becomes operational after August 16, 

2002, through November 10, 2010, and 

could reasonably be expected to have a 

discharge as described in § 112.1(b), you 

must prepare and implement a Plan on 

or before November 10, 2010. 

(b)(1) If you are the owner or operator 

of an onshore or offshore facility that 

becomes operational after November 10, 

2010, and could reasonably be expected 

to have a discharge as described in 

§ 112.1(b), you must prepare and 

implement a Plan before you begin 

operations. 

(2) If you are the owner or operator of 

a farm as defined in § 112.2 that 

becomes operational after November 10, 


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29142 Federal Register / Vol. 74, No. 117 / Friday, June 19, 2009 / Rules and Regulations 

2010, and could reasonably be expected 

to have a discharge as described in 

§ 112.1(b), you must prepare and 

implement a Plan before you begin 

operations. 

(c) If you are the owner or operator of 

an onshore or offshore mobile facility, 

such as an onshore drilling or workover 

rig, barge mounted offshore drilling or 

workover rig, or portable fueling facility, 

you must prepare, implement, and 

maintain a facility Plan as required by 

this section. You must maintain your 

Plan, but must amend and implement it, 

if necessary to ensure compliance with 

this part, on or before November 10, 

2010. If your onshore or offshore mobile 

facility becomes operational after 

November 10, 2010, and could 

reasonably be expected to have a 

discharge as described in § 112.1(b), you 

must prepare and implement a Plan 

before you begin operations. This 

provision does not require that you 

prepare a new Plan each time you move 

the facility to a new site. The Plan may 

be a general Plan. 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 facility is in 

a fixed (non-transportation) operating 

mode. 

* * * * * 

[FR Doc. E9–14247 Filed 6–18–09; 8:45 am] 

BILLING CODE 6560–50–P 


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