[Federal Register Volume 76, Number 201 (Tuesday, October 18, 2011)]
[Rules and Regulations]
[Pages 64245-64248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27047]



[[Page 64245]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2011-0838; FRL-9481-4]
RIN 2050-AG59


Oil Pollution Prevention; Spill Prevention, Control, and 
Countermeasure (SPCC) Rule--Compliance Date Amendment for Farms

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to amend the date by which 
farms must prepare or amend, and implement their Spill Prevention, 
Control, and Countermeasure Plans to May 10, 2013.

DATES: This rule is effective on November 7, 2011 without further 
notice, unless EPA receives adverse comment by November 2, 2011. If EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. For more information on effective and comment dates, see 
SUPPLEMENTARY INFORMATION.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2011-0838, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Email: [email protected].
     Fax: 202-566-9744.
     Mail: EPA Docket Center (EPA/DC), Environmental Protection 
Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460.
     Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room 
3334, 1301 Constitution Ave., NW., Washington, DC 20460. Attention 
Docket ID No. EPA-HQ-OPA-2011-0838. 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-
2011-0838. EPA's policy is that 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 http://www.regulations.gov or e-mail. The http://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 http://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 http://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 http://www.regulations.gov or in hard copy at the EPA-HQ-OPA-2011-
0838. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The Docket telephone number 
is (202) 566-1744. EPA Docket Center (EPA/DC), EPA West, Room 3334, 
1301 Constitution Ave., NW., Washington, DC.

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 final rule, contact 
either Lynn Beasley at (202) 564-1965 ([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: EPA is providing 15 days for adverse 
comment. EPA is providing a review time of 15 days because the 
amendment to the compliance date is straightforward and there are no 
additional amendments to the regulation. In addition, there is a 
certain urgency of to this rule due to the impact that flooding has had 
on farms to comply with this regulation, the low likelihood of comment, 
and the fact that the targeted community is aware that an extension is 
under consideration. Interested parties should be able to express their 
comments within the 15 day period through electronic means. There is no 
requirement to delay the effective date, because this rule relieves a 
restriction and grants an exemption by extending the compliance date of 
the Spill, Prevention, Control, and Countermeasure rule. 5 U.S.C. 
553(d)(1). It is also not a ``major rule'' for the purposes of the 
Congressional Review Act. If EPA receives adverse comment, we will 
publish a timely withdrawal in the Federal Register informing the 
public that the rule will not take effect.

I. Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment since this action provides owners and operators of farms an 
additional 18 months to prepare or amend, and implement their Spill 
Prevention, Control, and Countermeasure (SPCC) Plan. This action does 
not add an additional burden to comply with the regulations contained 
in 40 CFR part 112--Oil Pollution Prevention. However, in the 
``Proposed Rules'' section of today's Federal Register, we are also 
publishing a separate proposed rule to provide owners and operators of 
farms an additional 18 months to prepare or amend, and implement their 
SPCC Plan, if adverse comments are received on this direct final rule. 
We will not institute a second comment period on this action. Any 
parties interested in commenting must do so at this time. For further 
information about commenting on this rule, see the ADDRESSES section of 
this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

[[Page 64246]]

II. Does this action apply to me?

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                      Industry sector                         NAICS code
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Farms......................................................     111, 112
Government.................................................           92
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

III. What should I consider as I prepare my comments for EPA?

    A. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or email. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
the procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.

IV. What does this amendment do?

    This direct final rule amends the date by which farms as defined in 
section 112.2 must prepare or amend, and implement their SPCC Plan to 
May 10, 2013. A farm is defined in this section as a facility on a 
tract of land devoted to the production of crops or raising of animals, 
including fish, which produced and sold, or normally would have 
produced and sold, $1,000 or more of agricultural products during a 
year.
    On June 19, 2009 (74 FR 29136), EPA issued a final rule in the 
Federal Register that amended the dates by which facilities must 
prepare or amend their SPCC Plans, and implement those Plans to 
November 10, 2010. Then on October 14, 2010 (75 FR 63093), EPA issued a 
final rule in the Federal Register with a new compliance date of 
November 10, 2011, by which certain facilities must prepare or amend 
and implement their SPCC Plans, providing an additional year for the 
remaining facilities. This action further extends the compliance date 
to May 10, 2013 for the owners or operators of farms as defined in 40 
CFR 112.2. The Agency recognizes that the owners or operators of some 
facilities excluded from the extension of the compliance date may still 
require additional time to amend or prepare their SPCC Plans as a 
result of either non-availability of qualified personnel, or delays in 
construction or equipment delivery beyond the control and without the 
fault of the owner or operator. If so, the owner or operator of the 
facility may submit a written request for additional time to amend or 
prepare a SPCC Plan to the Regional Administrator in accordance with 
Sec.  112.3(f). This rule is not the vehicle for other extensions. EPA 
is not extending the compliance date for any other facilities as other 
facilities are not season-dependent and are less likely to be impacted 
by severe weather conditions. Additionally, other facilities retain the 
alternative mechanism for requesting an extension to the compliance 
date through Sec.  112.3(f). Interested facilities may also petition 
the agency to consider additional rulemaking.
    A large segment of the continental United States was affected by 
flooding during the spring and summer of 2011. Other areas were 
impacted by devastating fires and drought conditions. Many counties in 
several States were declared disaster areas by either the Federal or 
their State government or both. EPA has received a number of letters 
and other correspondence, from State Agricultural Departments and other 
parties, explaining the impact of these recent floods on the owners and 
operators of farms and their ability to comply with the SPCC rule. 
These owners and operators have experienced interruptions in planting, 
cultivation and harvesting due to these floods. According to the 
Federal Emergency Management Agency (FEMA) in 2011, the Agency issued 
56 Major Disaster/Emergency Declarations specifically associated with 
flooding events. According to FEMA's 2011 data, approximately two 
thirds of the fifty states had a FEMA flooding Major Disaster/Emergency 
Declarations. Almost a quarter of the fifty states had multiple FEMA 
declarations due to flooding.\1\ These declarations are widespread 
throughout the crop production areas of the country. The Agency was 
also advised in the correspondence that there may be a lack of 
available qualified Professional Engineers (PEs) in some areas of the 
country to assist in the preparation, implementation, and review of 
SPCC Plans for farms.
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    \1\ http://www.fema.gov/news/disasters.fema.
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    In addition, despite the targeted farm outreach efforts by EPA over 
the past ten months, the sheer number of farms throughout the U.S. 
makes it a challenge to reach those owners and operators of farms that 
may be subject to the SPCC Plan regulations. As a result, the Agency 
believes that farms, as defined in section 112.2, need additional time 
to come into compliance with the requirements to prepare or amend and 
implement a SPCC Plan. Thus, the Agency has decided to extend the 
compliance date by which owners or operators of a farm must prepare or 
amend and implement a SPCC Plans to May 10, 2013. The additional 18 
months allows enough time for farms to come in compliance with this 
regulation. The owners and operators of farms are strongly encouraged 
not to delay, and to take advantage of the off-season for planting and 
growing, in preparing their SPCC Plans. However, any farm owner or 
operator who is not able to come into compliance by May 10, 2013, and 
wishes to seek a further extension of the compliance date, should 
submit a written request to the Regional Administrator of the EPA 
Regional Office for the State where the farm is located in accordance 
with paragraph (f) of 40 CFR 112.3.
    The amendment to the compliance date does not remove the regulatory 
requirement for owners or operators of farms in operation before August 
16,

[[Page 64247]]

2002, to have and to maintain and continue implementing a SPCC Plan in 
accordance with the SPCC regulations then in effect. Such owners and 
operators continue to be required to maintain plans during the interim 
until the applicable compliance date for amending and implementing the 
amended Plans. In addition, the amendment of the compliance date does 
not relieve the owners and operators of farms from the potential 
liability under the Clean Water Act or other environmental statutes or 
regulations for any spills (see 40 CFR part 110) that may occur.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory 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 Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This direct final action does not impose any new information 
collection burden. The amendments in this direct final rule simply 
extend the compliance date for farms. This direct final rule does not 
change any reporting requirements in the general provisions. However, 
the Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in the existing subparts 
of 40 CFR 112 under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. and has assigned OMB control number 2050-0021. The 
OMB control numbers for EPA's regulations in 40 CFR are listed in 40 
CFR part 9. Subparts that will be added through separate rulemakings 
will document the respective information collection requirements in 
their own ICR documents.

C. Regulatory Flexibility Act (RFA)

    The RFA 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 this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's 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 which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The direct 
final rule simply amends the date for compliance. The direct final rule 
does not itself add any additional subparts or requirements. The direct 
final rule will not impose any new requirements on small entities.

D. Unfunded Mandates Reform Act (UMRA)

    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. The 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 or 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. The amendments in this final rule 
change the dates for compliance for farms.

E. Executive Order 13132: Federalism

    Executive Order (EO) 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 EO 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 EO 13132.
    This amendment applies directly to farms. They do not apply to 
governmental entities unless the government entity owns a farm, as 
defined in 40 CFR 112.2 Definitions. This regulation also does not 
limit the power of States or localities to regulate farms. Thus, EO 
13132 does not apply to this final rule.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). The changes in 
this direct final rule do not result in any changes to the requirements 
of the 2009 rule. Thus Executive Order 13175 does not apply to this 
action.

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

    This direct final rule is not subject to EO 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 present a 
disproportionate risk to children. The changes in this direct final 
rule do not result in any changes to the requirements applicable to 
farms, final rule other than the date for compliance.

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

    This action is not subject to Executive Order 13211 (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), Public Law 104-113, 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 (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations

[[Page 64248]]

when the Agency decides not to use available and applicable voluntary 
consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

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 the direct final amendments will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because the amendments do 
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. EPA will submit 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 U.S. 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. 
804(2). This rule will be effective November 7, 2011.

List of Subjects in 40 CFR Part 112

    Oil pollution prevention, Farms, Compliance date, Reporting and 
recordkeeping requirements.

    Dated: October 13, 2011.
Lisa P. Jackson,
Administrator.
    For the reasons set out above, title 40, chapter I of the Code of 
Federal Regulations is amended as follows:

PART 112--OIL POLLUTION PREVENTION

0
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; and E.O. 
12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351.


0
2. Section 112.3 is amended by adding paragraph (a)(3) to read as 
follows:


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

* * * * *
    (a) * * *
    (3) If your farm, as defined in Sec.  112.2, 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 
amended Plan no later than May 10, 2013. If your farm becomes 
operational after August 16, 2002, through May 10, 2013, 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 May 10, 
2013. If your farm becomes operational after May 10, 2013, 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. 2011-27047 Filed 10-17-11; 8:45 am]
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