[Federal Register Volume 76, Number 225 (Tuesday, November 22, 2011)]
[Rules and Regulations]
[Pages 72120-72124]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29901]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2011-0838; FRL-9494-8]
RIN 2050-AG69


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA (or the Agency) is taking 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. The date 
is being amended because a large segment of the continental U.S. was 
affected by flooding during the spring and summer of 2011, and other 
areas were impacted by devastating fires and drought conditions. 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 need additional time to come into compliance with the 
requirements to prepare or amend and implement a SPCC Plan.

DATES: This rule is effective on November 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OPA-2011-0838. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other 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 through http://www.regulations.gov or in hard copy at 
the RCRA 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 RCRA Docket is (202) 566-1744.

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:

I. Does this action apply to me?

------------------------------------------------------------------------
                     Industry sector                        NAICS code
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Farms...................................................        111, 112
Government..............................................              92
------------------------------------------------------------------------

    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.

II. What does this amendment do?

    This action 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. 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. On October 18, 2011, EPA issued a direct final 
rule (76 FR 64245) and a concurrent proposed rule (76 FR 64296), in the 
Federal Register that amended the dates by which farms must prepare or 
amend their SPCC Plans, and implement those Plans to May 10, 2013.
    Prior to the close of the public comment period for the concurrent 
proposed rule, the Agency received written adverse comments concerning 
the amended compliance dates. This final rule supersedes any and all 
prior published rules, including the direct final rule, in extending 
the compliance date to May 10, 2013 for the owners or operators of 
farms as defined in 40 CFR 112.2. We have addressed the public comments 
in the Response to Comment section of this preamble. 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,

[[Page 72121]]

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).
    Under 40 CFR 112.3(f) the Regional Administrator may authorize an 
extension of time for the preparation and full implementation of a SPCC 
Plan, or any amendment thereto, beyond the time permitted for the 
preparation, implementation, or amendment of a SPCC Plan under this 
part, when he finds that the owner or operator of a facility subject to 
this section, cannot fully comply with the requirements 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 such owner or operator or his agents or employees. If you are 
an owner or operator seeking an extension of time, you may submit a 
written extension request to the Regional Administrator. Your request 
must include a:
    (i) Full explanation of the cause for any such delay and the 
specific aspects of the Plan affected by the delay;
    (ii) Full discussion of actions being taken or contemplated to 
minimize or mitigate such delay; and
    (iii) Proposed time schedule for the implementation of any 
corrective actions being taken or contemplated, including interim dates 
for completion of tests or studies, installation and operation of any 
necessary equipment, or other preventive measures. In addition you may 
present additional oral or written statements in support of your 
extension request.
    The submission of a written extension request does not relieve you 
of your obligation to comply with the requirements of 40 CFR part 112. 
The Regional Administrator may request a copy of your Plan to evaluate 
the extension request. When the Regional Administrator authorizes an 
extension of time for particular equipment or other specific aspects of 
the SPCC Plan, such extension does not affect your obligation to comply 
with the requirements related to other equipment or other specific 
aspects of the SPCC Plan for which the Regional Administrator has not 
expressly authorized an extension.
    This action 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 40 CFR 112.3(f).

III. What was the basis for extending the SPCC compliance date for 
farms?

    A large segment of the continental U.S. was affected by flooding 
during the spring and summer of 2011. Other areas were impacted by 
devastating fires and drought conditions. In fact, 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. 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.
    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. While the Agency could require farms to request 
an extension pursuant to 40 CFR 112.3(f), as described above, the 
Agency believes that unless the Agency extends the compliance date for 
farms, we will receive an overwhelming number of requests for 
individual extensions. The Agency believes that this would be an 
inefficient use of scarce Agency resources to address this problem by 
processing a great number of individual extension requests.
    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.
    Finally, we would note that the amendment to the compliance date 
does not remove the regulatory requirement for owners or operators of 
farms in operation before August 16, 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 their SPCC Plans during the interim until the 
applicable compliance date for amending and implementing the amended 
SPCC Plans. In addition, the amendment of the compliance date does not 
relieve owners or 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. Response to Comments

    The Agency received four comments. All of the comments were adverse 
in nature. A response to comment document can be found in the Agency's 
docket for this rule (EPA-HQ-OPA-2011-0838).
    Comments: Comments received on the direct final rule with a 
concurrent proposed rule either disagreed with providing any extension 
or in one case the length of time (18 months) for the extension, 
suggesting instead a shorter extension. The commenters that expressly 
requested that the 18 month extension for farms not be granted cited 
one or more of the following concerns: (1) That repeated extensions 
(eight times) of compliance dates removes the urgency for farms to ``do 
the right thing'' from an environmental perspective or otherwise put 
off their SPCC obligations; (2) interferes with the (commenters') 
ability to communicate to potential clients (farmers) the need to

[[Page 72122]]

come into compliance soon; (3) there are many companies ready to assist 
farmers with their SPCC Plans; and (4) there are millions of dollars in 
grants available to farmers to help them come into compliance with the 
SPCC regulations. Two of the commenters suggested that greater outreach 
to farms regarding the SPCC Plan requirements is needed instead of the 
extension.
    One commenter agreed that an extension is necessary but does not 
agree with the time frame of 18 months. The commenter stated that a 
vast majority of farming clients have indicated that they are out of 
harvest and feel confident that they can finalize their SPCC Plans 
during the winter months. Therefore, a three to four month extension 
coupled with a concerted effort to inform farmers of their regulatory 
responsibilities would be of far greater benefit to the farming 
community. The commenter cited three primary concerns of the proposed 
extension: (1) It jeopardizes the resources that are currently 
available to help producers gain compliance; (2) there are solutions 
and professionals available including a ``free of charge'' online SPCC 
Plan creation tool, even though most farms do not need a professional 
engineer (PE) to certify their SPCC Plan and are able to prepare a 
self-certified SPCC Plan; and (3) a concerted effort must be made to 
inform and educate farmers about the SPCC rule and their 
responsibilities. One commenter cited a potential loss of jobs 
associated with the action and the inequity of EPA's enforcement of the 
SPCC regulation on farmers as compared to other sectors, such as the 
oil and gas sector.
    Response: While we recognize that there have been multiple 
extensions to the compliance date under 40 CFR 112.3--Requirement to 
prepare and implement a Spill Prevention, Control, and Countermeasure 
Plan, at this time, we are further extending the date for compliance 
for a narrow segment of industries that are covered by this regulation; 
i.e., farms.
    The Agency considered comments that opposed any extension to the 
compliance date and the comment that recognized a compliance date 
extension was appropriate, but suggested a shorter compliance date, as 
well as letters from the Secretary of Agriculture, Arkansas Agriculture 
Department, the Commissioner of the Mississippi Department of 
Agriculture and Commerce and the Commissioner of the Louisiana 
Department of Agriculture previously received by the Agency, that 
specifically requested an additional 24 months for farms to implement 
SPCC Plans and recover financially from the impacts of extreme weather, 
find qualified engineers, and install the proper equipment. The Agency 
proposed an 18 month extension determining that 24 months may be too 
long a period and decided 18 months should be adequate time for the 
farms. We still believe 18 months is the correct timeframe upon hearing 
from commenters that there are firms available to assist the farmers to 
come into compliance.
    The Agency recognizes that farms, more than other industries, are 
directly impacted by extreme weather conditions, such as the 
devastating flooding and drought that was experienced this past year by 
a substantial portion of the continental U.S. Rather than requiring all 
impacted farms to 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, we 
determined that it is more efficient to extend the compliance date for 
the farm industry. We also want to emphasize that farms should not wait 
until May 10, 2013, to ready their SPCC Plans. Farms should take 
advantage of non-growing and non-harvesting seasons to focus on 
preparing and implementing their SPCC Plans.
    Comments: Additionally, three of the four comments correctly 
explain that EPA's action does not provide an extension for those farms 
that were in operation on or before August 16, 2002, and which did not 
have a previously developed SPCC Plan. Such farms may be in 
noncompliance with the rule. A commenter also questioned the necessity 
of the current action, pointing out that most farms are in 
noncompliance and would not benefit from the extension. A second 
commenter also pointed out the misconception that all farmers 
(producers) will be eligible for the extension. The commenter stated 
that many farmers do not have SPCC Plans, thus, making them ineligible 
for the extension.
    Response: The Agency agrees with commenters that said that only 
existing farms maintaining an SPCC plan or new farms coming into 
operation after August 16, 2002, are eligible for the extension 
provided by this action.

V. 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 
therefore is not subject to review under Executive Orders 12866 and 
13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This final action does not impose any new information collection 
burden. The amendments in this final rule simply extend the compliance 
date for farms. This 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

[[Page 72123]]

have a significant economic impact on a substantial number of small 
entities. The final rule simply amends the date for compliance. The 
final rule does not itself add any additional subparts or requirements. 
The 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 compliance date 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. It 
does 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 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 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 final rule do not result in any 
changes to the requirements applicable to farms, other than the date 
for compliance.

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

    This 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 any 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, 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 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 final rule 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 22, 2011.

List of Subjects in 40 CFR Part 112

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

    Dated: November 10, 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:


[[Page 72124]]


    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 revising 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 on or before 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. 2011-29901 Filed 11-21-11; 8:45 am]
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