[Federal Register Volume 74, Number 117 (Friday, June 19, 2009)]
[Rules and Regulations]
[Pages 29136-29142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14247]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2008-0546; FRL-8919-9]
RIN 2050-AG49


Oil Pollution Prevention; Non-Transportation Related Onshore and 
Offshore Facilities

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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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 (<a href="/cdn-cgi/l/email-protection#6717150e09040e170249110609021414062702170649000811"><span class="__cf_email__" data-cfemail="1666647f78757f667338607778736565775673667738717960">[email protected]</span></a>) or 
Mark W. Howard at (202) 564-1964 (<a href="/cdn-cgi/l/email-protection#cda5a2baacbfa9e3a0acbfa6ba8da8bdace3aaa2bb"><span class="__cf_email__" data-cfemail="aec6c1d9cfdcca80c3cfdcc5d9eecbdecf80c9c1d8">[email protected]</span></a>), 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?

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                Industry sector                         NAICS code
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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                      311, 325
 Animal Fats and Vegetable Oils................
Metal Manufacturing............................                 331, 332
Other Manufacturing............................                    31-33
Real Estate Rental and Leasing.................                  531-533

[[Page 29137]]

 
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
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    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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  112.3(a)(1) to

[[Page 29138]]

address a misspelling of the word ``must.'' Under the amended Sec.  
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 Sec.  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 Sec.  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 Sec.  112.3 specific to farms (Sec.  112.3(a)(2) and 
(b)(2)) to include the November 10, 2010 compliance date. Additionally, 
the rule text in Sec.  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 Sec.  
112.2.''
    Under amended Sec.  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 Sec.  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.
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    \1\ As 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.
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    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 Sec.  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 Sec.  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 Sec.  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

[[Page 29139]]

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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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\
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    \2\ Based 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.
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    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

[[Page 29140]]

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 Sec.  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

[[Page 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.

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.

Subpart A--[Amended]

0
2. Section 112.3 is amended by revising paragraphs (a)(1), (a)(2), 
(b)(1), (b)(2) and (c) to read as follows:


Sec.  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 Sec.  112.1(b), you must prepare and implement a Plan on 
or before November 10, 2010.
    (2) If your farm as defined in Sec.  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 Sec.  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 Sec.  
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 Sec.  
112.2 that becomes operational after November 10,

[[Page 29142]]

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.
    (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 Sec.  
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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