[Federal Register Volume 69, Number 154 (Wednesday, August 11, 2004)]
[Rules and Regulations]
[Pages 48794-48799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18370]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[OPA-2004-0003; FRL-7800-2]
RIN 2050-AC62


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or we) is today 
extending by eighteen months certain upcoming compliance dates for the 
July 2002 Spill Prevention Control and Countermeasure (SPCC or Plan) 
amendments. The dates affected by today's final rule are the date for a 
facility to amend its Plan and the date for a facility to implement 
that amended Plan in a manner that complies with the newly amended 
requirements (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 also amending the compliance 
deadline for onshore and offshore mobile facilities. In light of a 
recent partial settlement of litigation involving the July 2002 
amendments, we are extending the compliance dates to, among other 
things, provide sufficient time for the regulated community to 
undertake the actions necessary to update (or prepare) their Plans. The 
final rule is also intended to alleviate the need for individual 
extension requests.

DATES: This final rule is effective August 11, 2004.

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-2004-
0003. 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 final 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 final rule concerns an eighteen-month 
extension of the current deadlines contained in 40 CFR 112.3(a) and 
(b), and an amendment of the compliance dates for 40 CFR 112.3(c). The 
contents of this preamble are as follows:

I. General Information
II. Entities Affected by This Final 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 
notice, the Environmental Protection Agency (EPA or we) is today 
extending by eighteen months the dates in 40 CFR 112.3(a) and (b) for a 
facility to amend and implement its Plan that complies with the newly 
amended requirements (or, in the case of a facility becoming 
operational after August 16, 2002, prepare and implement a Plan in a 
manner that complies with the newly amended requirements). Today's rule 
extends these deadlines for eighteen months from the dates promulgated 
in the April 17, 2003, SPCC rule amendment. See 68 FR 18890. Since 
today's action extends the compliance dates, it is not necessary to 
file a request for an extension of time pursuant to Sec.  112.3(f) 
beyond the existing compliance dates. If a facility owner or operator 
has already filed for an extension, such a request is invalidated by 
today's action. If an extension beyond the additional eighteen months 
is necessary, a request for an extension of time pursuant to Sec.  
112.3(f) must be submitted.
    We are also amending the compliance deadlines in 40 CFR 112.3(c) 
for mobile facilities.

How Can I Get Copies Of The Background Materials Supporting Today's 
Final Rule or Other Related Information?

    1. EPA has established an official public docket for this final 
rule under Docket ID No. OPA-2004-0003. The official public docket 
consists of the documents specifically referenced in this final rule 
and other information related to this 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.
    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

[[Page 48795]]

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          211111
 Extraction.
Coal Mining, Non-Metallic Mineral        2121/2123/213114/213116
 Mining and Quarrying.
Electric Power Generation,               2211
 Transmission, and Distribution.
Heavy Construction.....................  234
Petroleum and Coal Products              324
 Manufacturing.
Other Manufacturing....................  31-33
Petroleum Bulk Stations and Terminals..  42271
Automotive Rental and Leasing..........  5321
Heating Oil Dealers....................  454311
Transportation (including Pipelines),    482-486/488112-48819/4883/48849/
 Warehousing, and Marinas.                492-493/71393
Elementary and Secondary Schools,        6111-6113
 Colleges.
Hospitals/Nursing and Residential Care   622-623
 Facilities.
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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 SPCC rule. The rule was effective August 16, 2002. The rule 
included compliance dates in Sec.  112.3(a) and (b); however, the 
original compliance dates were extended for eighteen months on April 
17, 2003 (68 FR 18890).

V. Today's Action

    EPA is extending by an additional eighteen months the compliance 
dates in Sec.  112.3(a) and (b), and amending the compliance deadline 
in Sec.  112.3(c). Thus, an onshore or offshore facility that: (1) Was 
in operation on or before August 16, 2002, must maintain its Plan, but 
must amend it, if necessary to ensure compliance, on or before February 
17, 2006, and must implement the amended Plan as soon as possible, but 
not later than August 18, 2006; (2) becomes operational after August 
16, 2002, through August 18, 2006, and could reasonably be expected to 
have a discharge as described in 40 CFR 112.1(b), must prepare a Plan 
on or before August 18, 2006, and fully implement it as soon as 
possible, but not later than August 18, 2006; and (3) becomes 
operational after August 18, 2006, and could reasonably be expected to 
have a discharge as described in 40 CFR 112.1(b), must prepare and 
implement a Plan before it begins operations. An onshore or offshore 
mobile facility must amend its Plan, if necessary, and implement such 
amendments by August 18, 2006. Today's rule is immediately effective; 
EPA is invoking the exception to the 30-day notice requirement in the 
Administrative Procedure Act because the purpose of the rulemaking is 
to relieve a restriction (5 U.S.C. 553(d)(1)). Furthermore, the 
existing compliance date for amending a Plan is August 17, 2004, and a 
30-day notice requirement will extend past that date.
    After the publication of the July 17, 2002, final rule amending the 
SPCC regulation (67 FR 47042), several members of the regulated 
community filed legal challenges to certain aspects of the rule. See, 
American Petroleum Institute v. Leavitt et al., No. 1:102CV02247 PLF 
and consolidated cases (D.D.C. filed November 14, 2002).\1\ Settlement 
discussions between EPA and the plaintiffs have led to an agreement on 
all issues except one. In a separate notice, EPA recently published 
clarifications developed by the Agency during the course of settlement 
proceedings (and which provided the basis for the settlement agreement) 
regarding the SPCC regulation. See 69 FR 29728, May 25, 2004.
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    \1\ Lead plaintiffs in the cases were American Petroleum 
Institute (API), Marathon Oil Co., and the Petroleum Marketers 
Association of America (PMAA).
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    We believe it is appropriate to provide members of the regulated 
community with sufficient time to understand these clarifications and 
be able to incorporate them, as appropriate, in preparing and updating 
their SPCC Plans in accordance with the 2002 amendments. Therefore, we 
believe that the current compliance dates are insufficient for this 
purpose, and that it would be inefficient to use scarce Agency 
resources to address this problem by processing individual extension 
requests.

A. Comments \2\
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    \2\ This section, and Section B below, contain a summary of the 
comments received on the proposal, and the Agency's responses to 
such comments. For more detailed and additional information, see the 
response-to-comments document in the docket for today's rule.
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    Extension of Time. On June 17, 2004, EPA proposed to extend certain 
upcoming SPCC compliance dates by 12 months. The majority of commenters 
\3\ supported this one-year compliance deadline extension to allow the

[[Page 48796]]

regulated community sufficient time to understand and incorporate 
recent clarifications of the SPCC rule. However, several commenters 
suggested extension time frames longer than one year, one commenter 
believed that no extension was necessary, and still another commenter 
suggested that EPA withdraw the SPCC rule altogether.
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    \3\ Commenters mainly represented oil industry interests, as 
well as a number of other industrial sectors (agriculture, paints 
and coatings, electrical, construction materials, transportation, 
etc.) and professional engineers.
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    Commenters who recommended extending compliance deadlines confirmed 
the Agency's view at the time of proposal that an extension is 
appropriate to provide the regulated community with sufficient time to 
understand and incorporate, as appropriate, the clarifications to the 
SPCC rule when preparing and updating their SPCC Plans in accordance 
with the 2002 amendments. Commenters also agreed that an extensionis 
appropriate to eliminate the need for individual extension requests 
during this time. In addition, commenters also supported the extension 
of the compliance deadlines in order to provide more time to the 
regulated community to perform implementation-related activities such 
as staff training; fiscal budgeting; obtaining professional engineer 
certification; and to prevent a shortage of materials, equipment, and 
technical expertise to implement the Plans. Numerous commenters stated 
that the additional time would also be useful in order to receive and 
incorporate additional clarification and guidance on the SPCC rule from 
EPA.
    As noted above, several commenters suggested extensions longer than 
the proposed one-year extension. These suggestions ranged from 18 
months to two years to ``a much greater time'' for facilities to amend 
and/or implement their Plan. Some commenters cited a variety of reasons 
for a longer extension, including issues cited above, as well as 
weather-related concerns for a February implementation deadline, a 
preference for longer-term budgetary planning, time to develop 
industry-specific best management practices, and a need for an 
additional construction season. Some commenters requested that 
compliance dates be extended until after the completion of a further 
rule revision. Finally, a number of commenters suggested a longer time 
extension for further clarification and resolution of issues outside 
the scope of the litigation settlement discussions; that is, commenters 
were concerned about the number and scope of technical issues that EPA 
plans to clarify, and suggested that more than 12 months would be 
necessary for EPA to develop guidance and for facilities to make 
appropriate changes to their Plans.
    Scope of the Extension. A few commenters requested that an 
extension of the compliance deadlines also apply to the facilities 
described in Sec.  112.3(c), mobile facilities. Another commenter 
requested that EPA reaffirm the statement that the Agency made in the 
preamble to the April 17, 2003, final rule, which clarified that the 
extension granted at that time applied only to ``new or more stringent 
compliance obligations'' imposed by the July 2002 amendments and not to 
provisions in the amendments that provide regulatory relief.
    Some commenters expressed concern that EPA would not be able to 
publish the final rule extending the deadlines by July 17, 2004, in 
which case they requested that the Agency issue an interim final rule 
by that date, extending the deadlines as long as necessary to finalize 
this proposed rule.

B. Response to Comments

    Extension of Time in General. In reviewing the comments, we have 
been persuaded that more than one year is appropriate for facilities to 
come into compliance with the SPCC amendments. This is due to the need 
to provide sufficient time for the regulated community to take actions 
necessary to update (or prepare) their Plans in light of the partial 
settlement of litigation involving the July 2002 amendments.
    However, two commenters did not support any extension. One 
commenter expressed a concern that political interests motivated the 
Agency's decision to extend the compliance deadlines. Accordingly, the 
commenter did not support an extension and instead stated that the 
compliance deadline should be, at the latest, January 1, 2005, although 
no rationale for this date was given. The Agency reiterates that the 
compliance date extension is intended to give members of the regulated 
community sufficient time to understand and incorporate recent 
clarifications to the SPCC rule.
    Another commenter opposed promulgating the extension of the 
compliance deadline and instead suggested that EPA withdraw the revised 
final SPCC rule (67 FR 47042) entirely. The commenter suggested that 
EPA repropose the SPCC rule employing full notice and comment 
rulemaking procedures, and until then rely on the 1973 version of the 
SPCC rule (38 FR 34164). The commenter suggested the proposed rule be 
withdrawn because he felt: (1) EPA failed to use a single notice and 
single comment rulemaking procedure on the SPCC rule, (2) the proposed 
rule is necessitated by an incorrect economic analysis of the impact of 
the 2002 amendments, and (3) the proposed rule is flawed by lack of 
closure regarding the definition of ``navigable waters.'' EPA does not 
believe that any of these issues provide a legitimate justification for 
withdrawing the revised SPCC rule. Moreover, these issues are not 
within the scope of today's rulemaking. The Agency confirms its belief 
that extending the compliance dates is necessary.
    Extension of Time. Although the majority of commenters indicated 
that a one-year extension was warranted, several commenters made a 
compelling case for a time frame different than the proposed one-year 
extension. With respect to comments requesting additional guidance, the 
Agency notes that in an effort separate from this rulemaking, EPA has 
been working to assess the need for guidance on implementing various 
areas relating to the 2002 SPCC amendments and will continue this 
process, as appropriate.
    In situations where the extension does not provide sufficient 
relief for an individual facility, that facility may seek an extension 
under 40 CFR 112.3(f), where applicable. It is EPA's belief, however, 
that the eighteen-month extension will provide enough relief to prevent 
the Agency from again being faced with the prospect of an overwhelming 
number of requests for individual extensions under Sec.  112.3(f).
    Scope of the Extension. With regard to the comments asking for a 
revised compliance date for the requirements in Sec.  112.3(c), we are 
persuaded that the compliance deadlines for onshore and offshore mobile 
facilities should also be amended because such facilities face the same 
challenges to amend and implement their Plans in light of the partial 
settlement of litigation.
    In response to the commenter asking EPA to reaffirm the statement 
that the Agency made in the preamble to the April 17, 2003, final rule, 
EPA restates that to the extent that the July 2002 rule imposes new or 
more stringent compliance obligations than in the 1973 SPCC rule, the 
deadlines in 40 CFR 112.3(a) and (b) for the fulfillment of those 
obligations are again extended under today's final rule, as well as the 
deadline in 40 CFR 112.3(c). A provision that provides regulatory 
relief in the revised rule is not affected by today's compliance 
deadline extensions because such provisions are not addressed by 40 CFR 
112.3(a), (b), or (c), and these are not provisions for which it would 
be ``necessary'' to amend existing Plans ``to ensure compliance with'' 
the July 2002 amendments.

[[Page 48797]]

    In response to the commenter who recommended that EPA either 
publish this final rule by July 17, 2004, or issue an interim final 
rule to extend the deadlines as long as necessary to finalize this 
rule, EPA states that it is aware of the scheduling concerns regarding 
the extension of compliance deadlines and believes it has issued the 
final rule such that the regulated community will not be burdened with 
preparing 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.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this final rule is a ``significant regulatory action'' 
because it (4) raises novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. As such, this action was submitted to the Office 
of Management and Budget (OMB) for review. Changes made in response to 
OMB suggestions or recommendations are documented in the docket for 
today's final rule.

B. Paperwork Reduction Act

    This 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.) 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 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 final 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.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action does not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analysis is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 
Sections 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 final rule will temporarily reduce regulatory burden on 
facilities by extending for eighteen months the compliance dates in 
Sec.  112.3(a) and (b), as well as amend the compliance deadlines in 
Sec.  112.3(c). We have therefore concluded that today's final rule 
would relieve regulatory burden for 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 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 final rule will reduce burden and costs 
on all facilities.
    EPA has determined that this final rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. As explained above, the effect of the final rule is to 
reduce burden and costs for regulated facilities, including small 
governments that are subject to the rule.

[[Page 48798]]

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 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 final rule 
will not preempt state law or regulations. Thus, Executive Order 13132 
does not apply to this final rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.''
    This final rule does not have tribal implications, as specified in 
Executive Order 13175. It does not impose any new requirements on 
tribal officials nor does it impose substantial direct compliance costs 
on them. This rule does not create a mandate for tribal governments, 
nor does it impose any enforceable duties on these entities. Thus, 
Executive Order 13175 does not apply to this rule.

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 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 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 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 the Congress and to the Comptroller 
General of the United States. EPA 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. 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. 
840(2). This rule will be effective August 11, 2004.

List of Subjects in 40 CFR Part 112

    Environmental protection, Fire prevention, Flammable and 
combustible materials, Materials handling and storage, Oil pollution, 
Oil spill prevention, Oil spill response, Penalties, Petroleum, Piping, 
Reporting and recordkeeping requirements, Tanks, Transfer operations, 
Water pollution control, Water resources.

    Dated: August 5, 2004.
Michael O. Leavitt,
Administrator.

0
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

0
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.

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

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


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

* * * * *
    (a) 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, 2006, and must implement the amended Plan as soon as possible,

[[Page 48799]]

but not later than August 18, 2006. If your onshore or offshore 
facility becomes operational after August 16, 2002, through August 18, 
2006, 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, 
2006, and fully implement it as soon as possible, but not later than 
August 18, 2006.
    (b) If you are the owner or operator of an onshore or offshore 
facility that becomes operational after August 18, 2006, 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 August 18, 2006. If your onshore or offshore mobile facility 
becomes operational after August 18, 2006, 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. 04-18370 Filed 8-10-04; 8:45 am]
BILLING CODE 6560-50-P