[Federal Register Volume 71, Number 247 (Tuesday, December 26, 2006)]
[Proposed Rules]
[Pages 77357-77360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21507]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2006-0949; FRL-8258-4]
RIN 2050-AG36


Oil Pollution Prevention; Non-Transportation Related Onshore 
Facilities

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency is proposing to extend the 
dates by which facilities must prepare or amend Spill Prevention, 
Control, and Countermeasure Plans (SPCC Plans), and implement those 
Plans. This action would allow the Agency time to promulgate further 
revisions to the July 17, 2002 SPCC rule (in addition to those 
published elsewhere in this Federal Register) before owners and 
operators are required to meet requirements of the rule related to 
preparing or amending, and implementing SPCC Plans. EPA expects to 
propose further revisions to the SPCC rule in 2007.

DATES: Written comments must be received by January 25, 2007.

ADDRESSES: Comments should be directed to Docket ID No. EPA-HQ-OPA-
2006-0949. Comments may be submitted by one of the following methods:
    (1) Federal Rulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments; or
    (2) Mail: The mailing address of the docket for this rulemaking is 
EPA Docket Center (EPA/DC), Docket ID No. EPA-HQ-OPA-2006-0949, EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC 20460.
    (3) Hand Delivery: Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Please note that per EPA's policy, all comments received will be 
included in the public docket without change, and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
regulations.gov.
    Please also note that the Federal regulations.gov website is an 
``anonymous access'' system, which means that EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of the 
comment and along with any disk or CD-ROM you submit. 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. 
Electronic files should avoid the use of special characters, any form 
of encryption, and be free of any defects or viruses.
    All documents in the docket are listed in the docket index at 
http://www.regulations.gov. Although listed in the index, some 
information is not publicly available (i.e., CBI or other information 
whose disclosure is restricted by a statute). Certain material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form.
    Publicly available docket materials are available either 
electronically at http://www.regulations.gov or in hard copy at the EPA 
Docket Center, EPA/DC, EPA West, Room B102, 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 for 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 proposed rule, contact 
either Vanessa Rodriguez at (202) 564-7913 ([email protected]) 
or Mark W. Howard at (202) 564-1964 ([email protected]), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460-0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION:

I. 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.

II. Background

    On July 17, 2002, the Agency published a final rule that amended 
the SPCC regulations (see 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. The 
original compliance dates were amended on January 9, 2003 (see 68 FR 
1348), again on April 17, 2003 (see 68 FR 18890), a third time on 
August 11, 2004 (see 69 FR 48794), and a fourth time on February 17, 
2006 (see 71 FR 8462).
    Under the current provisions in Sec.  112.3(a) and (b), a facility 
that was in operation on or before August 16, 2002 must make any 
necessary amendments to its SPCC Plan and fully implement it by October 
31, 2007; a facility that came into operation after August 16, 2002, 
but before October 31, 2007, must prepare and fully implement an SPCC 
Plan on or before October 31, 2007. In addition, Sec.  112.3(c) 
requires onshore and offshore mobile facilities to prepare or amend and 
implement SPCC Plans on or before October 31, 2007.
    Elsewhere in today's Federal Register, EPA finalized a set of SPCC 
rule amendments that address certain targeted areas of the SPCC 
requirements and a number of issues and concerns raised by the 
regulated community. As highlighted in the EPA Regulatory Agenda and 
the 2005 OMB report on ``Regulatory Reform of the U.S. Manufacturing 
Sector,'' EPA is considering further amendments to address other areas 
where regulatory reform may be appropriate. For these additional areas, 
the Agency expects to issue a proposed rule in 2007. Areas where 
regulatory reform may be appropriate include, and are not limited to, 
oil and natural gas exploration and production, farms, and Tier I 
facilities. Because the Agency may not be able to promulgate such 
regulatory amendments before the current October 31, 2007 compliance 
date for SPCC becomes effective, EPA believes it is appropriate to 
provide an extension of the compliance date.

III. Proposal to Extend the Compliance Dates

    This proposed rule would extend the dates in Sec.  112.3(a), (b) 
and (c) by which a facility must prepare or amend and implement its 
SPCC Plan. As a result of

[[Page 77358]]

this proposed rule, a facility that was in operation on or before 
August 16, 2002 would have to make any necessary amendments to its SPCC 
Plan, and implement that Plan, on or before July 1, 2009. This would 
allow owners and operators of SPCC regulated facilities time to prepare 
or amend and implement its SPCC Plan in accordance with the 
modifications to the 2002 SPCC requirements the EPA plans to propose in 
2007. A facility that came into operation after August 16, 2002 would 
have to prepare and implement an SPCC Plan on or before July 1, 2009.
    This proposed rule would similarly extend the compliance dates in 
Section 112.3(c) for mobile facilities. Under this proposal, a mobile 
facility must prepare or amend and implement an SPCC Plan on or before 
July 1, 2009.
    The Agency believes the extension of the compliance date proposed 
in this notice is warranted for several reasons. The Agency is not in a 
position, at this time, to indicate all the areas for possible 
regulatory reform that may be addressed as part of a 2007 SPCC 
proposal. This extension would allow those potentially affected in the 
regulated community an opportunity to make changes to their facilities 
and to their SPCC Plans necessary to comply with the revised 
requirements expected to be proposed in 2007, rather than with the 
existing requirements.
    Further, the Agency believes that this proposed extension of the 
compliance dates would also provide facilities time necessary to fully 
understand the regulatory relief offered by revisions to the 2002 SPCC 
rule as finalized elsewhere in today's Federal Register.\1\
---------------------------------------------------------------------------

    \1\ As stated in the rules, facilities must maintain their 
existing plans, to the extent they are required to have one. 
However, facilities that want to take advantage of the regulatory 
changes being finalized today may do so, but the owner and operator 
of the facility will need to modify their existing plan accordingly.
---------------------------------------------------------------------------

    In addition, the Agency intends to issue revisions to the SPCC 
Guidance for Regional Inspectors, to address both the revisions 
finalized elsewhere in today's Federal Register, and the upcoming 
revisions expected to be proposed in 2007. The guidance document is 
designed to facilitate an understanding of the rule's applicability, to 
help clarify the role of the inspector in the review and evaluation of 
the performance-based SPCC requirements, and to provide a consistent 
national policy on SPCC-related issues. The guidance also is available 
to both the owners and operators of facilities that may be subject to 
the requirements of the SPCC rule and to the general public on the 
Agency's Web site at http://www.epa.gov/oilspill. The Agency believes 
that this proposed extension would provide the regulated community the 
opportunity to understand the material presented in the revised 
guidance before preparing or amending their SPCC Plans.
    The Agency is seeking comment on this proposal to extend the date 
by which SPCC Plans must be amended and implemented in accordance with 
amendments to the SPCC Rule. Any alternative approaches presented must 
include appropriate rationale and supporting data in order for the 
Agency to be able to consider them for final action.

IV. Applicability to Farms

    Elsewhere in today's Federal Register, EPA finalized an extension 
of the compliance dates for the owner or operator of a farm, as defined 
in Sec.  112.2, to prepare or amend and implement the farm's SPCC Plan 
until the effective date of a rule addressing whether to provide 
differentiated requirements for farms. The Agency will be conducting 
additional information collection and analysis to determine if 
differentiated SPCC requirements may be appropriate for farms. The 
Agency will be working with USDA to collect data that would more 
accurately characterize oil handling at these facilities, thereby 
allowing the Agency to focus on priorities where substantial 
environmental improvements can be obtained.
    Today's proposal does not affect this extended compliance date for 
farms. To the extent that the revisions EPA intends to propose in 2007 
address differentiated requirements for farms, the ultimate compliance 
date for farms and other facilities may be the same. In any case, the 
Agency will announce the new compliance date for farms in the Federal 
Register.

V. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    Under the terms of Executive Order 12866, this action has been 
judged as not a ``significant regulatory action'' because it would 
extend the compliance dates in Sec.  112.3, but would have no other 
substantive effect. However, because of its interconnection with the 
related SPCC rule amendments finalized elsewhere in this Federal 
Register notice (see discussion above in section III), which is a 
significant action under the terms of Executive Order 12866, this 
action was nonetheless submitted to OMB for review.

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

    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; (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.
    After considering the economic impacts of today's proposed rule on 
small entities, the Agency concludes that this action would 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 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 proposed rule would relieve the regulatory burden for small 
entities by extending the compliance dates in Sec.  112.3.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

[[Page 77359]]

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 proposed 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. This proposed rule would reduce burden 
and costs for all facilities.
    EPA has determined that this proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. As was explained above, the effect of the proposed rule 
would be to reduce burden and costs for owners and operators of all 
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 proposed 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), 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 proposed rule would not preempt State 
law or regulations. Thus, Executive Order 13132 does not apply to this 
proposed 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 proposed rule would not significantly or uniquely affect 
communities of Indian tribal governments. Therefore, the Agency has not 
consulted with a representative organization of tribal groups.

G. Executive Order 13045--Protection of Children From Environmental 
Health and Safety Risk

    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 proposed 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 proposed 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 proposed rule does not involve technical standards. Therefore, 
NTTAA does not apply.

List of Subjects in 40 CFR Part 112

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


[[Page 77360]]


    Dated: December 12, 2006.
Stephen L. Johnson,
Administrator.

    For the reasons set forth 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 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.

    2. Section 112.3 amended by revising paragraphs (a)(1) and (b)(1) 
as proposed to be amended elsewhere in this Federal Register on 
December 26, 2006 and revising paragraph (c) to read as follows:

Subpart A--[Amended]


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 July 1, 2009. If your onshore or offshore facility 
becomes operational after August 16, 2002, through July 1, 2009, 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 July 1, 
2009.
* * * * *
    (b)(1) If you are the owner or operator of an onshore or offshore 
facility that becomes operational after July 1, 2009, 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 July 1, 2009. If your onshore or offshore mobile facility 
becomes operational after July 1, 2009, 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. E6-21507 Filed 12-22-06; 8:45 am]
BILLING CODE 6560-50-P