[Federal Register Volume 68, Number 6 (Thursday, January 9, 2003)]
[Proposed Rules]
[Pages 1352-1355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-391]



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

[[Page 1352]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[FRL-7437-4]
RIN 2050-AC62


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or we) is proposing 
to extend, by one year, 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 proposing this extension to prevent 
the flood of individual extension requests it has become apparent we 
will otherwise receive.

DATES: Written comments must be received by January 29, 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 proposed 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 proposed 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: This proposal concerns a one-year extension 
of the deadlines in 40 CFR 112.3(a) and (b). 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. For the reasons explained in section V of this 
document, the Environmental Protection Agency (EPA or we) is proposing 
to extend, for one year, 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 the proposed extension, if it is finalized, 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), if this extension is finalized, it should render such 
requests moot.
    We will address all public comments in a final rule based on this 
proposed rule. Any parties interested in commenting should do so at 
this time.

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

    1. EPA has established an official public docket for this proposed 
rule under Docket ID No. OPA-2002-001. The official public docket 
consists of the documents specifically referenced in this proposed rule 
and other information related to this proposed 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.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where

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practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff. For additional information 
about EPA's electronic public docket visit EPA Dockets online or see 67 
FR 38102, May 31, 2002.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA will not 
consider late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
party submitting the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    Your use of EPA's electronic public docket to submit comments to 
EPA electronically is EPA's preferred method for receiving comments. Go 
directly to EPA Dockets at http://www.epa.gov/edocket, and follow the 
online instructions for submitting comments. To access EPA's electronic 
public docket from the EPA Internet Home Page, select ``Information 
Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the system, select 
``search,'' and then key in Docket ID No. OPA-2002-001. The system is 
an ``anonymous access'' system, which means EPA will not know your 
identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    2. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected]. Make sure this electronic copy is in 
an ASCII format that does not use special characters or encryption. 
Cite the docket Number OPA-2002-001 in your electronic file. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    3. Disk or CD ROM. You may submit comments on a disk or CD ROM that 
you mail to the mailing address identified above. These electronic 
submissions will be accepted in WordPerfect or ASCII file format. Avoid 
the use of special characters and any form of encryption.
    4. By Mail. Send two (2) copies of your comments to: EPA Docket 
Center, U.S. Environmental Protection Agency Headquarters (EPA, HQ), 
Mail Code 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 
Attention Docket ID No. OPA-2002-001.
    5. By Hand Delivery or Courier. Deliver your comments to: EPA 
Docket Center, EPA West Building, Room No. B-102, 1301 Constitution 
Ave., NW., Washington, DC 20004. Attention Docket ID No. OPA-2002-001. 
Such deliveries are only accepted during the Docket's normal hours of 
operation as identified above.

II. Entities Affected by This Rule

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                   Industry category                                            NAICS code
----------------------------------------------------------------------------------------------------------------
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
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

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are proposing to extend those dates for a period of one year.

V. Today's Action

    EPA is proposing to extend by one year the compliance dates in 
Sec.  112.3(a) and (b). We are proposing this extension to allow 
affected facilities more time to comply with the rule. Since the 
promulgation of the amendments, the Agency 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 takes this 
action, we will receive an overwhelming number of requests for 
individual extensions under 40 CFR 112.3(f).
    The Agency believes that the present compliance dates are too 
short, and it would therefore be an inefficient use of scarce Agency 
resources to address this problem by processing a great number of 
individual extension requests.

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 rule is not a ``significant regulatory action'' because it 
would only extend for one year the compliance dates in Sec.  112.3(a) 
and (b). It would have no other substantive effect.

B. Paperwork Reduction Act

    This 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 (RFA) as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The R.F.A. generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
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 
rule will temporarily reduce regulatory burden on all facilities by 
extending for one year the compliance dates in Sec.  112.3(a) and (b). 
Further, the rule will reduce costs for both existing and new 
facilities.
    After considering the economic impacts of today's 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 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.

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Today's 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 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 (Oct. 22, 1991). This 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 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 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 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 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 rule does not involve technical standards. Therefore, NTTA is 
inapplicable.

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 proposed to be 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 February 
17, 2004, and must implement the amended Plan as soon as possible, but 
not later than August 18, 2004. If your onshore or offshore facility 
becomes operational after August 16, 2002, through August 18, 2004, and 
could reasonably be expected to have a discharge as described in Sec.  
112.1(b), you must prepare a Plan on or before August 18, 2004, and 
fully implement it as soon as possible, but not later than August 18, 
2004.
    (b) If you are the owner or operator of an onshore or offshore 
facility that becomes operational after August 18, 2004, 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.
* * * * *
[FR Doc. 03-391 Filed 1-8-03; 8:45 am]
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