[Federal Register Volume 76, Number 201 (Tuesday, October 18, 2011)]
[Rules and Regulations]
[Pages 64245-64248]
From the Federal Register Online via the Government Printing 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: Docket.RCRA@epa.gov.
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 (beasley.lynn@epa.gov) or Mark W.
Howard at (202) 564-1964 (howard.markw@epa.gov), 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.
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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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