Oil Pollution Prevention and Response; Non-Transportation-Related
Onshore and Offshore Facilities
[Federal Register: August 11, 2004 (Volume 69, Number 154)]
[Rules and Regulations]
[Page 48794-48799]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au04-11]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[OPA-2004-0003; FRL-7800-2]
RIN 2050-AC62
Oil Pollution Prevention and Response; Non-Transportation-Related
Onshore and Offshore Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or we) is today
extending by eighteen months certain upcoming compliance dates for the
July 2002 Spill Prevention Control and Countermeasure (SPCC or Plan)
amendments. The dates affected by today's final rule are the date for a
facility to amend its Plan and the date for a facility to implement
that amended Plan in a manner that complies with the newly amended
requirements (or, in the case of facilities becoming operational after
August 16, 2002, prepare and implement a Plan that complies with the
newly amended requirements). We are also amending the compliance
deadline for onshore and offshore mobile facilities. In light of a
recent partial settlement of litigation involving the July 2002
amendments, we are extending the compliance dates to, among other
things, provide sufficient time for the regulated community to
undertake the actions necessary to update (or prepare) their Plans. The
final rule is also intended to alleviate the need for individual
extension requests.
DATES: This final rule is effective August 11, 2004.
ADDRESSES: The docket for this rulemaking is located in the EPA Docket
Center at 1301 Constitution Ave., NW., EPA West, Suite B-102,
Washington, DC 20460. The docket number for the final rule is OPA-2004-
0003. The docket is contained in the EPA Docket Center and is available
for inspection by appointment only, between the hours of 8:30 a.m. and
4:30 p.m., Monday through Friday, excluding legal holidays. You may
make an appointment to view the docket by calling 202-566-0276. You may
copy a maximum of 100 pages from any regulatory docket at no cost. If
the number of pages exceeds 100, however, we will charge you $0.15 for
each page after 100. The docket will mail copies of materials to you if
you are outside of the Washington, DC metropolitan area.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA/CERCLA Call 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 Hugo Paul Fleischman at 703-603-8769
fleischman.hugo@epa.gov); or Mark W. Howard at 703-603-8715
howard.markw@epa.gov), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460-0002, Mail Code 5203G.
SUPPLEMENTARY INFORMATION: This final rule concerns an eighteen-month
extension of the current deadlines contained in 40 CFR 112.3(a) and
(b), and an amendment of the compliance dates for 40 CFR 112.3(c). The
contents of this preamble are as follows:
I. General Information
II. Entities Affected by This Final Rule
III. Statutory Authority
IV. Background
V. Today's Action
VI. Statutory and Executive Order Reviews
I. General Information
Introduction. For the reasons explained in Section V of this
notice, the Environmental Protection Agency (EPA or we) is today
extending by eighteen months the dates in 40 CFR 112.3(a) and (b) for a
facility to amend and implement its Plan that complies with the newly
amended requirements (or, in the case of a facility becoming
operational after August 16, 2002, prepare and implement a Plan in a
manner that complies with the newly amended requirements). Today's rule
extends these deadlines for eighteen months from the dates promulgated
in the April 17, 2003, SPCC rule amendment. See 68 FR 18890. Since
today's action extends the compliance dates, it is not necessary to
file a request for an extension of time pursuant to Sec. 112.3(f)
beyond the existing compliance dates. If a facility owner or operator
has already filed for an extension, such a request is invalidated by
today's action. If an extension beyond the additional eighteen months
is necessary, a request for an extension of time pursuant to Sec.
112.3(f) must be submitted.
We are also amending the compliance deadlines in 40 CFR 112.3(c)
for mobile facilities.
How Can I Get Copies Of The Background Materials Supporting Today's
Final Rule or Other Related Information?
1. EPA has established an official public docket for this final
rule under Docket ID No. OPA-2004-0003. The official public docket
consists of the documents specifically referenced in this final rule
and other information related to this final rule. Although a part of
the official docket, the public docket does not include Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. The official public docket is the collection of
materials that is available for public viewing at the EPA Docket Center
located at 1301 Constitution Ave., NW., EPA West Building, Room B-102,
Washington, DC 20004.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr. You may use EPA Dockets at
http://www.epa.gov/edocket/ to access the index listing of the contents
of the official public docket, and to access those documents in the public
docket that are available electronically. Once in
[[Page 48795]]
the system, select ``search,'' then key in the docket identification
number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI, and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket, but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA's electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified above.
II. Entities Affected by This Rule
------------------------------------------------------------------------
Industry category NAICS code
------------------------------------------------------------------------
Crop and Animal Production............. 111-112
Crude Petroleum and Natural Gas 211111
Extraction.
Coal Mining, Non-Metallic Mineral 2121/2123/213114/213116
Mining and Quarrying.
Electric Power Generation, 2211
Transmission, and Distribution.
Heavy Construction..................... 234
Petroleum and Coal Products 324
Manufacturing.
Other Manufacturing.................... 31-33
Petroleum Bulk Stations and Terminals.. 42271
Automotive Rental and Leasing.......... 5321
Heating Oil Dealers.................... 454311
Transportation (including Pipelines), 482-486/488112-48819/4883/48849/
Warehousing, and Marinas. 492-493/71393
Elementary and Secondary Schools, 6111-6113
Colleges.
Hospitals/Nursing and Residential Care 622-623
Facilities.
------------------------------------------------------------------------
The list of potentially affected entities in the above table may
not be exhaustive. Our aim is to provide a guide for readers regarding
those entities that EPA is aware potentially could be affected by this
action. However, this action may affect other entities not listed in
the table. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.
III. Statutory Authority
33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 (October 18,
1991), 3 CFR, 1991 Comp., p. 351.
IV. Background
On July 17, 2002, at 67 FR 47042, EPA published final amendments to
the SPCC rule. The rule was effective August 16, 2002. The rule
included compliance dates in Sec. 112.3(a) and (b); however, the
original compliance dates were extended for eighteen months on April
17, 2003 (68 FR 18890).
V. Today's Action
EPA is extending by an additional eighteen months the compliance
dates in Sec. 112.3(a) and (b), and amending the compliance deadline
in Sec. 112.3(c). Thus, an onshore or offshore facility that: (1) Was
in operation on or before August 16, 2002, must maintain its Plan, but
must amend it, if necessary to ensure compliance, on or before February
17, 2006, and must implement the amended Plan as soon as possible, but
not later than August 18, 2006; (2) becomes operational after August
16, 2002, through August 18, 2006, and could reasonably be expected to
have a discharge as described in 40 CFR 112.1(b), must prepare a Plan
on or before August 18, 2006, and fully implement it as soon as
possible, but not later than August 18, 2006; and (3) becomes
operational after August 18, 2006, and could reasonably be expected to
have a discharge as described in 40 CFR 112.1(b), must prepare and
implement a Plan before it begins operations. An onshore or offshore
mobile facility must amend its Plan, if necessary, and implement such
amendments by August 18, 2006. Today's rule is immediately effective;
EPA is invoking the exception to the 30-day notice requirement in the
Administrative Procedure Act because the purpose of the rulemaking is
to relieve a restriction (5 U.S.C. 553(d)(1)). Furthermore, the
existing compliance date for amending a Plan is August 17, 2004, and a
30-day notice requirement will extend past that date.
After the publication of the July 17, 2002, final rule amending the
SPCC regulation (67 FR 47042), several members of the regulated
community filed legal challenges to certain aspects of the rule. See,
American Petroleum Institute v. Leavitt et al., No. 1:102CV02247 PLF
and consolidated cases (D.D.C. filed November 14, 2002).\1\ Settlement
discussions between EPA and the plaintiffs have led to an agreement on
all issues except one. In a separate notice, EPA recently published
clarifications developed by the Agency during the course of settlement
proceedings (and which provided the basis for the settlement agreement)
regarding the SPCC regulation. See 69 FR 29728, May 25, 2004.
---------------------------------------------------------------------------
\1\ Lead plaintiffs in the cases were American Petroleum
Institute (API), Marathon Oil Co., and the Petroleum Marketers
Association of America (PMAA).
---------------------------------------------------------------------------
We believe it is appropriate to provide members of the regulated
community with sufficient time to understand these clarifications and
be able to incorporate them, as appropriate, in preparing and updating
their SPCC Plans in accordance with the 2002 amendments. Therefore, we
believe that the current compliance dates are insufficient for this
purpose, and that it would be inefficient to use scarce Agency
resources to address this problem by processing individual extension
requests.
A. Comments \2\
---------------------------------------------------------------------------
\2\ This section, and Section B below, contain a summary of the
comments received on the proposal, and the Agency's responses to
such comments. For more detailed and additional information, see the
response-to-comments document in the docket for today's rule.
---------------------------------------------------------------------------
Extension of Time. On June 17, 2004, EPA proposed to extend certain
upcoming SPCC compliance dates by 12 months. The majority of commenters
\3\ supported this one-year compliance deadline extension to allow the
[[Page 48796]]
regulated community sufficient time to understand and incorporate
recent clarifications of the SPCC rule. However, several commenters
suggested extension time frames longer than one year, one commenter
believed that no extension was necessary, and still another commenter
suggested that EPA withdraw the SPCC rule altogether.
---------------------------------------------------------------------------
\3\ Commenters mainly represented oil industry interests, as
well as a number of other industrial sectors (agriculture, paints
and coatings, electrical, construction materials, transportation,
etc.) and professional engineers.
---------------------------------------------------------------------------
Commenters who recommended extending compliance deadlines confirmed
the Agency's view at the time of proposal that an extension is
appropriate to provide the regulated community with sufficient time to
understand and incorporate, as appropriate, the clarifications to the
SPCC rule when preparing and updating their SPCC Plans in accordance
with the 2002 amendments. Commenters also agreed that an extensionis
appropriate to eliminate the need for individual extension requests
during this time. In addition, commenters also supported the extension
of the compliance deadlines in order to provide more time to the
regulated community to perform implementation-related activities such
as staff training; fiscal budgeting; obtaining professional engineer
certification; and to prevent a shortage of materials, equipment, and
technical expertise to implement the Plans. Numerous commenters stated
that the additional time would also be useful in order to receive and
incorporate additional clarification and guidance on the SPCC rule from
EPA.
As noted above, several commenters suggested extensions longer than
the proposed one-year extension. These suggestions ranged from 18
months to two years to ``a much greater time'' for facilities to amend
and/or implement their Plan. Some commenters cited a variety of reasons
for a longer extension, including issues cited above, as well as
weather-related concerns for a February implementation deadline, a
preference for longer-term budgetary planning, time to develop
industry-specific best management practices, and a need for an
additional construction season. Some commenters requested that
compliance dates be extended until after the completion of a further
rule revision. Finally, a number of commenters suggested a longer time
extension for further clarification and resolution of issues outside
the scope of the litigation settlement discussions; that is, commenters
were concerned about the number and scope of technical issues that EPA
plans to clarify, and suggested that more than 12 months would be
necessary for EPA to develop guidance and for facilities to make
appropriate changes to their Plans.
Scope of the Extension. A few commenters requested that an
extension of the compliance deadlines also apply to the facilities
described in Sec. 112.3(c), mobile facilities. Another commenter
requested that EPA reaffirm the statement that the Agency made in the
preamble to the April 17, 2003, final rule, which clarified that the
extension granted at that time applied only to ``new or more stringent
compliance obligations'' imposed by the July 2002 amendments and not to
provisions in the amendments that provide regulatory relief.
Some commenters expressed concern that EPA would not be able to
publish the final rule extending the deadlines by July 17, 2004, in
which case they requested that the Agency issue an interim final rule
by that date, extending the deadlines as long as necessary to finalize
this proposed rule.
B. Response to Comments
Extension of Time in General. In reviewing the comments, we have
been persuaded that more than one year is appropriate for facilities to
come into compliance with the SPCC amendments. This is due to the need
to provide sufficient time for the regulated community to take actions
necessary to update (or prepare) their Plans in light of the partial
settlement of litigation involving the July 2002 amendments.
However, two commenters did not support any extension. One
commenter expressed a concern that political interests motivated the
Agency's decision to extend the compliance deadlines. Accordingly, the
commenter did not support an extension and instead stated that the
compliance deadline should be, at the latest, January 1, 2005, although
no rationale for this date was given. The Agency reiterates that the
compliance date extension is intended to give members of the regulated
community sufficient time to understand and incorporate recent
clarifications to the SPCC rule.
Another commenter opposed promulgating the extension of the
compliance deadline and instead suggested that EPA withdraw the revised
final SPCC rule (67 FR 47042) entirely. The commenter suggested that
EPA repropose the SPCC rule employing full notice and comment
rulemaking procedures, and until then rely on the 1973 version of the
SPCC rule (38 FR 34164). The commenter suggested the proposed rule be
withdrawn because he felt: (1) EPA failed to use a single notice and
single comment rulemaking procedure on the SPCC rule, (2) the proposed
rule is necessitated by an incorrect economic analysis of the impact of
the 2002 amendments, and (3) the proposed rule is flawed by lack of
closure regarding the definition of ``navigable waters.'' EPA does not
believe that any of these issues provide a legitimate justification for
withdrawing the revised SPCC rule. Moreover, these issues are not
within the scope of today's rulemaking. The Agency confirms its belief
that extending the compliance dates is necessary.
Extension of Time. Although the majority of commenters indicated
that a one-year extension was warranted, several commenters made a
compelling case for a time frame different than the proposed one-year
extension. With respect to comments requesting additional guidance, the
Agency notes that in an effort separate from this rulemaking, EPA has
been working to assess the need for guidance on implementing various
areas relating to the 2002 SPCC amendments and will continue this
process, as appropriate.
In situations where the extension does not provide sufficient
relief for an individual facility, that facility may seek an extension
under 40 CFR 112.3(f), where applicable. It is EPA's belief, however,
that the eighteen-month extension will provide enough relief to prevent
the Agency from again being faced with the prospect of an overwhelming
number of requests for individual extensions under Sec. 112.3(f).
Scope of the Extension. With regard to the comments asking for a
revised compliance date for the requirements in Sec. 112.3(c), we are
persuaded that the compliance deadlines for onshore and offshore mobile
facilities should also be amended because such facilities face the same
challenges to amend and implement their Plans in light of the partial
settlement of litigation.
In response to the commenter asking EPA to reaffirm the statement
that the Agency made in the preamble to the April 17, 2003, final rule,
EPA restates that to the extent that the July 2002 rule imposes new or
more stringent compliance obligations than in the 1973 SPCC rule, the
deadlines in 40 CFR 112.3(a) and (b) for the fulfillment of those
obligations are again extended under today's final rule, as well as the
deadline in 40 CFR 112.3(c). A provision that provides regulatory
relief in the revised rule is not affected by today's compliance
deadline extensions because such provisions are not addressed by 40 CFR
112.3(a), (b), or (c), and these are not provisions for which it would
be ``necessary'' to amend existing Plans ``to ensure compliance with''
the July 2002 amendments.
[[Page 48797]]
In response to the commenter who recommended that EPA either
publish this final rule by July 17, 2004, or issue an interim final
rule to extend the deadlines as long as necessary to finalize this
rule, EPA states that it is aware of the scheduling concerns regarding
the extension of compliance deadlines and believes it has issued the
final rule such that the regulated community will not be burdened with
preparing individual extension requests.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866--OMB Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this final rule is a ``significant regulatory action''
because it (4) raises novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. As such, this action was submitted to the Office
of Management and Budget (OMB) for review. Changes made in response to
OMB suggestions or recommendations are documented in the docket for
today's final rule.
B. Paperwork Reduction Act
This final rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (R.F.A.) 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 today's final rule on
small entities, small entity is defined as: (1) A small business as
defined in the Small Business Administration's (SBA) regulations at 13
CFR 121.201--the SBA defines small businesses by category of business
using North American Industry Classification System (NAICS) codes, and
in the case of farms and production facilities, which constitute a
large percentage of the facilities affected by this final rule,
generally defines small businesses as having less than $500,000 in
revenues or 500 employees, respectively; (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 today's final rule on
small entities, I certify that this action does not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analysis is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C.
Sections 603 and 604. Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on all of the small entities subject to the rule.
This final rule will temporarily reduce regulatory burden on
facilities by extending for eighteen months the compliance dates in
Sec. 112.3(a) and (b), as well as amend the compliance deadlines in
Sec. 112.3(c). We have therefore concluded that today's final rule
would relieve regulatory burden for small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
EPA has determined that this final rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Today's final rule will reduce burden and costs
on all facilities.
EPA has determined that this final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As explained above, the effect of the final rule is to
reduce burden and costs for regulated facilities, including small
governments that are subject to the rule.
[[Page 48798]]
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 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 Executive Order 13132. Under CWA section 311(o), EPA
believes that States are free to impose additional requirements,
including more stringent requirements, relating to the prevention of
oil discharges to navigable waters. EPA encourages States to supplement
the federal SPCC program and recognizes that some States have more
stringent requirements. 56 FR 54612 (Oct. 22, 1991). This final rule
will not preempt state law or regulations. Thus, Executive Order 13132
does not apply to this final rule.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
This final rule does not have tribal implications, as specified in
Executive Order 13175. It does not impose any new requirements on
tribal officials nor does it impose substantial direct compliance costs
on them. This rule does not create a mandate for tribal governments,
nor does it impose any enforceable duties on these entities. Thus,
Executive Order 13175 does not apply to this rule.
G. Executive Order 13045--Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866; and, (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. EPA
interprets Executive Order 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under Section 5-501 of the Order has the potential to
influence the regulation. This final rule is not subject to Executive
Order 13045 because it is not economically significant as defined in
Executive Order 12866, and because the Agency does not have reason to
believe the environmental health or safety risks addressed by this
action present a disproportionate risk to children.
H. Executive Order 13211--Actions That Significantly Affect Energy
Supply, Distribution, or Use
This final rule is not a ``significant energy action'' as defined
in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355,
May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards such as materials specifications, test methods,
sampling procedures, and business practices that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This final rule does not involve technical standards. Therefore,
NTTA is inapplicable.
J. 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 submitted 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 United States
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.
840(2). This rule will be effective August 11, 2004.
List of Subjects in 40 CFR Part 112
Environmental protection, Fire prevention, Flammable and
combustible materials, Materials handling and storage, Oil pollution,
Oil spill prevention, Oil spill response, Penalties, Petroleum, Piping,
Reporting and recordkeeping requirements, Tanks, Transfer operations,
Water pollution control, Water resources.
Dated: August 5, 2004.
Michael O. Leavitt,
Administrator.
? For the reasons set out in the preamble, title 40 CFR, chapter I, part
112 of the Code of Federal Regulations, is amended as follows:
PART 112--OIL POLLUTION PREVENTION
? 1. The authority for part 112 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.
Subpart A--Applicability, Definitions, and General Requirements for
All Facilities and All Types of Oils
? 2. Section 112.3 is amended by revising paragraphs (a), (b), and (c) to
read as follows:
Sec. 112.3 Requirement to prepare and implement a Spill, Prevention,
Control, and Countermeasure Plan.
* * * * *
(a) If your onshore or offshore facility was in operation on or
before August 16, 2002, you must maintain your Plan, but must amend it,
if necessary to ensure compliance with this part, on or before February
17, 2006, and must implement the amended Plan as soon as possible,
[[Page 48799]]
but not later than August 18, 2006. If your onshore or offshore
facility becomes operational after August 16, 2002, through August 18,
2006, and could reasonably be expected to have a discharge as described
in Sec. 112.1(b), you must prepare a Plan on or before August 18,
2006, and fully implement it as soon as possible, but not later than
August 18, 2006.
(b) If you are the owner or operator of an onshore or offshore
facility that becomes operational after August 18, 2006, and could
reasonably be expected to have a discharge as described in Sec.
112.1(b), you must prepare and implement a Plan before you begin operations.
(c) If you are the owner or operator of an onshore or offshore
mobile facility, such as an onshore drilling or workover rig, barge
mounted offshore drilling or workover rig, or portable fueling
facility, you must prepare, implement, and maintain a facility Plan as
required by this section. You must maintain your Plan, but must amend
and implement it, if necessary to ensure compliance with this part, on
or before August 18, 2006. If your onshore or offshore mobile facility
becomes operational after August 18, 2006, and could reasonably be
expected to have a discharge as described in Sec. 112.1(b), you must
prepare and implement a Plan before you begin operations. This
provision does not require that you prepare a new Plan each time you
move the facility to a new site. The Plan may be a general Plan. When
you move the mobile or portable facility, you must locate and install
it using the discharge prevention practices outlined in the Plan for
the facility. The Plan is applicable only while the facility is in a
fixed (non-transportation) operating mode.
* * * * *
[FR Doc. 04-18370 Filed 8-10-04; 8:45 am]
BILLING CODE 6560-50-P