[Federal Register Volume 74, Number 21 (Tuesday, February 3, 2009)]
[Rules and Regulations]
[Pages 5900-5903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2335]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2007-0584; FRL-8770-7]
RIN 2050-AG16


Oil Pollution Prevention; Non-Transportation Related Onshore 
Facilities; Spill Prevention, Control, and Countermeasure Rule--Final 
Amendments

AGENCY: Environmental Protection Agency.

ACTION: Final rule: Delay of effective date and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) is delaying by sixty 
days the effective date of the final rule that amends the Spill 
Prevention, Control, and Countermeasure (SPCC) regulations published in 
the Federal Register on December 5, 2008. Thus, the amendments will 
become effective on April 4, 2009. EPA additionally is requesting 
public comment on the extension of the effective date and its duration, 
and on the regulatory amendments contained in the final rule.

DATES: This document is effective February 3, 2009. The effective date 
of FR Doc. E8-28159, published in the Federal Register on December 5, 
2008 (73 FR 74236), is delayed to April 4, 2009.
    Comments must be received on or before March 5, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2007-0584, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Mail: EPA Docket, Environmental Protection Agency, Mail 
code: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA/DC, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OPA-
2007-0584. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information

[[Page 5901]]

whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through 
www.regulations.gov or e-mail. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and 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. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the EPA Docket, EPA/DC EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the EPA 
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 at 800-553-7672 (hearing impaired). In the Washington, DC 
metropolitan area, contact the Superfund, TRI, EPCRA, RMP, and Oil 
Information Center at 703-412-9810 or TDD 703-412-3323. For more 
detailed information on specific aspects of this final rule, contact 
either Vanessa E. Principe 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: In accordance with the January 20, 2009, 
White House memorandum entitled, ``Regulatory Review,'' and the 
memorandum from the Office of Management and Budget entitled, 
``Implementation of Memorandum Concerning Regulatory Review'' (M-09-08, 
January 21, 2009) (OMB memorandum), EPA is delaying the effective date 
of the final rule that amends the Spill Prevention, Control, and 
Countermeasure (SPCC) regulations promulgated in the Federal Register 
on December 5, 2008 (73 FR 74236) under section 311 of the Clean Water 
Act and seeking public comment on the extension and its duration. The 
effective date of the final rule would have been February 3, 2009. With 
the 60-day extension, the amendments will become effective on April 4, 
2009. The SPCC rule amendments clarify, tailor, and streamline certain 
existing requirements for those facility owners or operators who are 
required to prepare and implement an SPCC Plan (or ``Plan'') to prevent 
the discharge of oil into or upon navigable waters of the United States 
or adjoining shorelines.
    Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(B), provides that, when an Agency for good cause finds that 
notice and public procedure are impracticable, unnecessary, or contrary 
to the public interest, the Agency may issue a rule without providing 
notice and an opportunity for public comment. We have determined that 
there is good cause for delaying the effective date of the final rule 
amending the SPCC regulations without prior proposal and opportunity 
for comment because notice and comment would be impracticable and 
unnecessary. Consistent with the January 21, 2009 OMB memorandum 
``Implementation of Memorandum Concerning Regulatory Review,'' the EPA 
Administrator has chosen this rule for additional assessment of policy 
and legal issues. Notice and comment is impracticable because the rule 
currently has an effective date of February 3, 2009, and the Agency can 
not adequately comply with the presidential directive without delaying 
the effective date of the rule. We have also determined that notice and 
comment is unnecessary because there are no applicable compliance dates 
for the final rule until well after the April 4, 2009 effective date.
    The Agency is taking this action to ensure that the rule reflects 
proper consideration of all relevant facts. While the Agency is 
requesting public comment on the entire final rule, the Agency is 
specifically interested in receiving comments on the optional 
approaches for produced water containers and the criteria for qualified 
oil production facilities. The preamble and regulatory text for the 
optional approaches for exempting or providing containment for produced 
water containers can be found at Sec. Sec.  112.2, 112.3(d)(vi), 
112.3(d)(vii), 112.5(b), 112.5(c), 112.9(c)(6), and Section V.M.7 of 
the December 5, 2008 document, 73 FR 74285 through 74290. The preamble 
and regulatory text on the criteria for the identification of oil 
production facilities that are qualified and eligible to prepare self-
certified Plans can be found at Sec.  112.3(g)(2)(ii) and Section V.M.6 
of the December 5, 2008 document, 73 FR 74280 through 74285. The Agency 
requests that comments include an appropriate rationale and supporting 
data for Agency review and consideration. Following the comment period, 
EPA will take appropriate steps to ensure careful evaluation of the 
comments received and will consider whether further amendment of the 
final rule is necessary.
    Finally, the Agency is also reviewing the dates by which owners or 
operators of facilities must prepare or amend their SPCC Plans, and 
implement those Plans. EPA intends to address these dates in a separate 
notice.

Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, 
therefore, not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action results in no changes to the information collection 
requirements of the SPCC rule and will have no impact on the 
information collection estimate of project cost and hour burden 
previously submitted to OMB.

C. Regulatory Flexibility Act

    Today's final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any

[[Page 5902]]

rule that will have a significant economic impact on a substantial 
number of small entities. The RFA applies only to rules subject to 
notice and comment rulemaking requirements under the APA or any other 
statute. This rule is not subject to notice and comment requirements 
under the APA or any other statute because, although the rule is 
subject to the APA, the Agency has invoked the ``good cause'' exemption 
under 5 U.S.C. 553(b), therefore, it is not subject to the notice and 
comment requirement.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any state, local, or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action only 
delays the effective date of the December 5, 2008 rule and does not 
impose any additional enforceable duty.

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 action 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. This action will not impose direct 
compliance costs on state or local governments, and will not preempt 
state law. Thus, Executive Order 13132 does not apply to this action.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 (59 FR 22951, November 9, 2000). It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the 
Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because the NSPS for 
petroleum refineries are based on technology performance. This action 
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) 
because it is not economically significant as defined in EO 12866, and 
because the Agency does not believe the environmental health or safety 
risks addressed by this action presents a disproportionate risk to 
children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA) (Pub. L. 104-113; 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by VCS bodies. NTTAA 
directs EPA to provide Congress, through OMB, explanations when EPA 
decides not to use available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment.

K. Congressional Review Act

    The Congressional Review Act, 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. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary, or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefor. EPA will submit a report containing this rule and 
other required information to the United States Senate, the United 
States 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, Animal fats and vegetable oils, Hot-mix 
asphalt, Farms, Flammable and combustible materials, Integrity testing, 
Loading

[[Page 5903]]

racks, Materials handling and storage, Natural gas, Oil pollution, Oil 
and gas exploration and production, Oil spill response, Penalties, 
Petroleum, Reporting and recordkeeping requirements, Secondary 
containment, Security, Tanks, Unloading racks, Water pollution control, 
Water resources.

    Dated: January 29, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-2335 Filed 2-2-09; 8:45 am]
BILLING CODE 6560-50-P