[Federal Register Volume 68, Number 6 (Thursday, January 9, 2003)]
[Rules and Regulations]
[Pages 1348-1351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-390]



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Part V





Environmental Protection Agency





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40 CFR Part 112



Oil Pollution Prevention and Response; Non-Transportation-Related 
Onshore and Offshore Facilities; Final Rule and Proposed Rule

  Federal Register / Vol. 68, No. 6 / Thursday, January 9, 2003 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[FRL-7437-3]
RIN 2050-AC62


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: The Environmental Protection Agency (EPA or we) is extending 
for a period of sixty days the dates for a facility to amend its Spill 
Prevention, Control, and Countermeasure (SPCC) Plan and implement the 
amended Plan (or, in the case of facilities becoming operational after 
August 16, 2002, prepare and implement a Plan that complies with the 
newly amended requirements). We are taking this action to avoid the 
flood of individual extension requests it has become apparent we will 
otherwise receive from regulated facilities, and to allow for adequate 
consideration of comments we expect to receive on a proposed one-year 
extension of the dates published elsewhere in this issue of the Federal 
Register.

DATES: This interim final rule is effective on January 9, 2003.

ADDRESSES: The docket for this rulemaking is located in the EPA Docket 
Center at 1301 Constitution Ave., NW., EPA West, Suite B-102, 
Washington, DC 20460. The docket number for the final rule is OPA-2002-
001. The docket is contained in the EPA Docket Center and is available 
for inspection by appointment only, between the hours of 8:30 a.m. and 
4:30 p.m., Monday through Friday, excluding legal holidays. You may 
make an appointment to view the docket by calling 202-566-0276. You may 
copy a maximum of 100 pages from any regulatory docket at no cost. If 
the number of pages exceeds 100, however, we will charge you $0.15 for 
each page after 100. The docket will mail copies of materials to you if 
you are outside of the Washington, DC metropolitan area.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA/CERCLA Call 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 rule, contact Hugo Paul Fleischman at 703-603-8769 
([email protected]); or Mark W. Howard at 703-603-8715 
([email protected]), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW, Washington, DC 20460-0002, Mail Code 5203G.

SUPPLEMENTARY INFORMATION: The contents of this preamble are as 
follows:

I. General Information
II. Entities Affected by This Rule
III. Statutory Authority
IV. Background
V. Today's Action
VI. Statutory and Executive Order Reviews

I. General Information

    Introduction. By this interim final rule, the Environmental 
Protection Agency is extending by sixty days the dates in 40 CFR 
112.3(a) and (b) for a facility to amend its Spill Prevention, Control, 
and Countermeasure (SPCC) Plan and implement the amended Plan (or, in 
the case of facilities becoming operational after August 16, 2002, 
prepare and implement a Plan that complies with the newly amended 
requirements). During the period of this sixty-day extension, it will 
not be necessary for a facility owner or operator to file an extension 
request pursuant to Sec.  112.3(f). Furthermore, for facilities that 
have already applied for an extension pursuant to Sec.  112.3(f), 
today's interim final rule should render such requests moot.

A. How Can I Get Copies of the Background Materials Supporting Today's 
Interim Final Rule or Other Related Information?

    1. EPA has established an official public docket for this interim 
final rule under Docket ID No. OPA-2002-001. The official public docket 
consists of the documents specifically referenced in this interim final 
rule and other information related to this interim final rule. Although 
a part of the official docket, the public docket does not include 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. The official public docket is the 
collection of materials that is available for public viewing at the EPA 
Docket Center located at 1301 Constitution Ave., NW., EPA West 
Building, Room B-102, Washington, DC 20004. This Docket Facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
federal holidays. To review docket materials, it is recommended that 
the public make an appointment by calling (202) 566-0276. The public 
may copy a maximum of 100 pages from any regulatory docket at no 
charge. Additional copies cost $0.15/page.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr.
    You may use EPA Dockets at http://www.epa.gov/edocket/ to access 
the index listing of the contents of the official public docket, and to 
access those documents in the public docket that are available 
electronically. Once in the system, select ``search,'' then key in the 
docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI, and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified above.

II. Entities Affected by This Rule

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                   Industry category                                            NAICS code
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Crop and Animal Production.............................  111-112
Crude Petroleum and Natural Gas Extraction.............  211111
Coal Mining, Non-Metallic Mineral Mining and Quarrying.  2121/2123/213114/213116
Electric Power Generation, Transmission, and             2211
 Distribution.
Heavy Construction.....................................  234
Petroleum and Coal Products Manufacturing..............  324
Other Manufacturing....................................  31-33

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Petroleum Bulk Stations and Terminals..................  42271
Automotive Rental and Leasing..........................  5321
Heating Oil Dealers....................................  454311
Transportation (including Pipelines), Warehousing, and   482-486/488112-48819/4883/48849/492-493/71393
 Marinas.
Elementary and Secondary Schools, Colleges.............  6111-6113
Hospitals/Nursing and Residential Care Facilities......  622-623
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    The list of potentially affected entities in the above table may 
not be exhaustive. Our aim is to provide a guide for readers regarding 
those entities that EPA is aware potentially could be affected by this 
action. However, this action may affect other entities not listed in 
the table. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding section entitled FOR FURTHER INFORMATION CONTACT.

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, at 67 FR 47042, EPA published final amendments to 
the Spill Prevention, Control, and Countermeasure (SPCC) rule. The rule 
was effective August 16, 2002. The rule included dates in Sec.  
112.3(a) and (b), by which a facility would have time to amend its SPCC 
Plan and implement its amended Plan (note that for facilities becoming 
operational after August 16, 2002, the rule contains dates for the 
preparation and implementation of a Plan in compliance with the amended 
rule). In light of new information, we have decided to extend those 
dates for a period of sixty days.

V. Today's Action

    EPA is extending for a period of sixty days the dates in Sec.  
112.3(a) and (b). Since the promulgation of the SPCC rule in July 2002, 
EPA has received numerous complaints that the deadlines in the rule do 
not allow enough time for the regulated community to undertake the 
actions necessary to update (or prepare) their Plans in accordance with 
the amendments. Among the reasons given are that there is a shortage of 
Professional Engineers (PEs) in some areas, the need for the PE or his 
agent to make visits at sometimes remote facilities, and the need for 
the PE to certify that Plans meet requirements for which they have not 
yet had adequate training. It has also become apparent that unless the 
Agency issues this interim final rule, we will receive an overwhelming 
number of requests for individual extensions under 40 CFR 112.3(f). 
Thus, the Agency believes that the present compliance dates are too 
short, and it would be an inefficient use of scarce Agency resources to 
address this problem by processing a great number of individual 
extension requests. Because the first deadline in the rule is February 
17, 2003, the Agency believes that immediate, near-term relief is 
needed, and is therefore extending the current deadlines by sixty days.
    We are issuing this interim final rule in conjunction with a 
concurrent proposal (published elsewhere in this issue of the Federal 
Register) to extend by one year the dates in Sec.  112.3(a) and (b). We 
believe a sixty-day extension is needed as quickly as possible to avoid 
potential confusion for facility owners and unnecessary administrative 
burdens on the Agency. Therefore, EPA is invoking the good cause 
exception under the Administrative Procedure Act (APA) in not providing 
an opportunity for comment before this action takes effect (5 U.S.C. 
553(b)(3)). EPA believes that notice- and comment rulemaking before the 
existing compliance dates in the SPCC rule (i.e., February 17, 2003) is 
impracticable and contrary to the public interest, inasmuch as there is 
insufficient time to offer meaningful opportunity for public comment 
and provide appropriate, considered response by the Agency. Therefore, 
EPA believes it is necessary to use the interim final rulemaking 
process to extend by sixty days the compliance dates in Sec.  112.3(a) 
and (b) while we complete a notice-and-comment rulemaking process that 
proposes to extend these compliance dates for a period of one year. 
Moreover, with respect to the effective date of this interim final 
rule, EPA is invoking the good cause exception to the 30-day notice 
requirement of the APA because the purpose of this notice is to relieve 
a restriction (5 U.S.C. 553(d)(1)).

VI. Statutory and Executive Order Reviews

A. Executive Order 12866--OMB Review

    Under Executive Order 12866, (58 FR 51735, October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Under the terms of Executive Order 12866, it has been determined 
that this interim final rule is not a ``significant regulatory action'' 
because it would only extend for sixty days the compliance dates in 
Sec.  112.3(a) and (b). It would have no other substantive effect.

B. Paperwork Reduction Act

    This interim final rule does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (R.F.A.) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq. generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements

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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 interim final rule 
on small entities, 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 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 which 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 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 
interim final rule will temporarily reduce regulatory burden on all 
facilities by extending for sixty days the compliance dates in Sec.  
112.3(a) and (b). Further, the interim final rule will reduce costs for 
both existing and new facilities.
    After considering the economic impacts of today's interim final 
rule on small entities, I certify that this action would not have a 
significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    EPA has determined that this interim final rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. Today's interim final rule would reduce 
burden and costs on all facilities.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. As explained above, the effect of the rule would be to 
reduce burden and costs for regulated facilities, including small 
governments that are 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 interim final rule does not have federalism implications. It 
would 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), EPA believes that States are free to 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 program and recognizes that some States 
have more stringent requirements. 56 FR 54612 (October 22, 1991). This 
interim final rule would 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

    On November 6, 2000, the President issued Executive Order 13175 (65 
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 took effect on January 6, 2001, 
and revokes Executive Order 13084 (Tribal Consultation) as of that 
date.
    Today's interim final rule would not significantly or uniquely 
affect communities of Indian tribal governments. Therefore, we have not 
consulted with a representative organization of tribal groups.

G. Executive Order 13045--Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866; and, (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective

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and reasonably feasible alternatives considered by the Agency. EPA 
interprets Executive Order 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This interim final rule is not subject to 
Executive Order 13045 because it is not economically significant as 
defined in Executive Order 12866, and because the Agency does not have 
reason to 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 interim final rule 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.

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 such as materials specifications, test methods, 
sampling procedures, and business practices that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This interim final rule does not involve technical standards. 
Therefore, NTTA is inapplicable.

J. 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 Congress and to the Comptroller General of the United 
States. EPA has submitted 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. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Reporting and 
recordkeeping requirements.

    Dated: January 3, 2003.
Christine Todd Whitman,
Administrator.

    For the reasons set out in the preamble, title 40 CFR, chapter I, 
part 112 of the Code of Federal Regulations, is amended as follows:

PART 112--OIL POLLUTION PREVENTION

    1. The authority 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.

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

PART 112--OIL POLLUTION PREVENTION

Subpart A--Applicability, Definitions, and General Requirements for 
All Facilities and All Types of Oils


Sec.  112.3  Requirement to prepare and implement a spill prevention, 
control, and countermeasure plan.

    (a) 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, on or before April 
17, 2003, and must implement the amended Plan as soon as possible, but 
not later than October 18, 2003. If your onshore or offshore facility 
becomes operational after August 16, 2002, through October 18, 2003, 
and could reasonably be expected to have a discharge as described in 
Sec.  112.1(b), you must prepare a Plan on or before October 18, 2003, 
and fully implement it as soon as possible, but not later than October 
18, 2003.
    (b) If you are the owner or operator of an onshore or offshore 
facility that becomes operational after October 18, 2003, 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.
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[FR Doc. 03-390 Filed 1-8-03; 8:45 am]
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