Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Rule; Revisions to the Regulatory Definition of “Navigable Waters”, 71941-71944 [E8-28123]
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Rules and Regulations
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FOR FURTHER INFORMATION CONTACT:
Megan Brachtl, Compliance and
Innovative Strategies Division, Office of
Transportation and Air Quality (Mail
Code: 6406J), Environmental Protection
Agency, 1200 Pennsylvania Avenue,
NW., 20460; telephone number: (202)
343–9473; fax number: (202) 343–2802;
e-mail address: brachtl.megan@epa.gov.
SUPPLEMENTARY INFORMATION: Because
EPA received adverse comment, we are
withdrawing several provisions of the
direct final rule to amend the
Renewable Fuel Standard program
requirements, published on October 2,
2008. We stated in that direct final rule
that if we received adverse comment by
November 3, 2008, the portions of the
direct final rule on which adverse
comments were received would not take
effect, and we would publish a timely
withdrawal of such portions of the
direct final rule in the Federal Register.
We subsequently received adverse
comments on the following provisions:
The amendments to 40 CFR
80.1129(b)(1) and 80.1129(b)(8)
(providing that a party with a small
refinery or small refiner exemption may
only separate RINs that have been
assigned to a volume of renewable fuel
that the party blends into motor vehicle
fuel), 40 CFR 80.1129(b)(4) (providing
that any party may separate the RINs
from renewable fuel that it produces or
markets for use in motor vehicles in
neat form, or uses in motor vehicles in
neat form), and 40 CFR 80.1131(a)(8)
and 80.1131(b)(4) (changing the location
in the RFS regulations of a provision
stating that a RIN that is transferred to
two or more parties is considered an
invalid RIN). Because EPA received
adverse comments, we are withdrawing
these provisions.
EPA published a parallel proposed
rule on the same day as the direct final
rule. The proposed rule invited
comment on the substance of the direct
final rule. We will address the
comments received on the portions of
the direct final rule being withdrawn
today in a subsequent final action based
on the parallel proposed rule also
published on October 2, 2008 (73 FR
57274). As stated in the parallel
proposal, we will not institute a second
comment period on this proposed
action. The provisions for which we did
not receive adverse comment will
become effective on December 1, 2008,
as provided in the October 2, 2008,
direct final rule.
Dated: November 20, 2008.
Stephen L. Johnson,
Administrator.
Accordingly, the amendments to 40
CFR 80.1129(b)(1), 80.1129(b)(4),
■
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80.1129(b)(8), 80.1131(a)(8), and
80.1131(b)(4) published on October 2,
2008 (73 FR 57248) are withdrawn as of
November 26, 2008.
[FR Doc. E8–28125 Filed 11–25–08; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[EPA–HQ–OPA–2008–0569 FRL–8746–1]
RIN 2050–AG48
Oil Pollution Prevention; Spill
Prevention, Control, and
Countermeasure Rule; Revisions to
the Regulatory Definition of ‘‘Navigable
Waters’’
AGENCY: Environmental Protection
Agency.
ACTION: Final rule; Response to court
order vacating regulatory definition of
navigable waters.
SUMMARY: The Environmental Protection
Agency (EPA) is promulgating a final
rule to amend a Clean Water Act (CWA)
section 311 regulation that defines the
term ‘‘navigable waters.’’ On July 17,
2002, EPA promulgated a final rule
which included revisions to the
definition of ‘‘navigable waters’’ in the
Spill Prevention, Countermeasure and
Control (SPCC) regulation. In this
action, EPA is announcing the vacatur
of the July 17, 2002 revisions to the
definition of ‘‘navigable waters’’ in
accordance with an order, issued by the
United States District Court for the
District of Columbia (D.D.C.) in
American Petroleum Institute v.
Johnson, 571 F.Supp.2d 165 (D.D.C.
2008), invalidating those revisions. The
court decision also restored the
regulatory definition of ‘‘navigable
waters’’ promulgated by EPA in 1973;
consequently, we are amending the
definition of ‘‘navigable waters’’ in part
112 to comply with that decision.
DATES: This rule is effective November
26, 2008.
ADDRESSES: The public docket for this
final rule, Docket ID No. EPA–HQ–
OPA–2008–0569, contains the
information related to this rulemaking.
All documents in the docket are listed
in an index at https://
www.regulations.gov. Although listed in
the index, some information may not be
publicly available, such as Confidential
Business Information (CBI) or other
information the disclosure of which is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
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copy. Publicly available docket
materials are available either
electronically at https://
www.regulations.gov or in hard copy at
the EPA Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number of the Public Reading Room is
202–566–1744, and the telephone
number to make an appointment to view
the docket is 202–566–0276.
FOR FURTHER INFORMATION CONTACT: For
general information, contact the
Superfund, TRI, EPCRA, RMP, and Oil
Information Center at 800–424–9346 or
TDD at 800–553–7672 (hearing
impaired). In the Washington, DC
metropolitan area, contact the
Superfund, TRI, EPCRA, RMP, and Oil
Information Center at 703–412–9810 or
TDD 703–412–3323. For more detailed
information on specific aspects of this
final rule, contact Hugo Fleischman of
EPA at 202–564–1968
(fleischman.hugo@epa.gov), U.S.
Environmental Protection Agency, 1200
Pennsylvania Avenue, NW.,
Washington, DC 20460–0002, Mail Code
5104A.
SUPPLEMENTARY INFORMATION:
I. Background
A. Potentially Affected Entities
Persons or entities who own or
operate facilities engaged in drilling,
producing, gathering, storing,
processing, refining, transferring,
distributing, using or consuming oil or
oil products, which due to their
location, could reasonably be expected
to discharge oil in quantities that may
be harmful, as described in 40 CFR part
110 of this chapter, into or upon the
navigable waters of the United States or
adjoining shorelines, could be affected
by this rule. The rule addresses the
regulatory definition of ‘‘navigable
waters’’ under the Clean Water Act
(CWA) section 311, a term that is
important in determining which owners
or operators are required to prepare
Spill Prevention, Control and
Countermeasure (SPCC) Plans and/or
Facility Response Plans (FRP) under 40
CFR part 112 for their facilities. As
described further below, this action
does not increase regulatory burdens,
but rather conforms the language in
EPA’s CWA section 311 regulations to
the outcome of a lawsuit challenging the
regulatory definition. Examples of
entities that might potentially be
affected include:
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Rules and Regulations
Industry sector
NAICS code
Oil Production .................................................................................................................................................................
Farms ..............................................................................................................................................................................
Electric Utility Plants .......................................................................................................................................................
Petroleum Refining and Related Industries ....................................................................................................................
Chemical Manufacturing .................................................................................................................................................
Food Manufacturing ........................................................................................................................................................
Manufacturing Facilities Using and Storing Animal Fats and Vegetable Oils ...............................................................
Metal Manufacturing .......................................................................................................................................................
Other Manufacturing .......................................................................................................................................................
Real Estate Rental and Leasing .....................................................................................................................................
Retail Trade ....................................................................................................................................................................
Contract Construction .....................................................................................................................................................
Wholesale Trade .............................................................................................................................................................
Other Commercial ...........................................................................................................................................................
Transportation .................................................................................................................................................................
Arts Entertainment & Recreation ....................................................................................................................................
Other Services (Except Public Administration) ..............................................................................................................
Petroleum Bulk Stations and Terminals .........................................................................................................................
Education ........................................................................................................................................................................
Hospitals & Other Health Care .......................................................................................................................................
Accommodation and Food Services ...............................................................................................................................
Fuel Oil Dealers ..............................................................................................................................................................
Gasoline stations ............................................................................................................................................................
Information Finance and Insurance ................................................................................................................................
Mining .............................................................................................................................................................................
Warehousing and Storage ..............................................................................................................................................
Religious Organizations ..................................................................................................................................................
Military Installations ........................................................................................................................................................
Pipelines .........................................................................................................................................................................
Government ....................................................................................................................................................................
The list of potentially affected entities
in the above table may not be
exhaustive. The Agency’s goal is to
provide a guide for readers to consider
regarding entities that potentially could
be affected by this action. However, this
action may affect other entities not
listed in this table. If you have questions
regarding the applicability of this action
to a particular entity, consult the person
listed in the preceding section titled FOR
FURTHER INFORMATION CONTACT.
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B. The SPCC Rule and Litigation
Section 311 of the CWA prohibits the
discharge of oil in quantities that may
be harmful, as described in 40 CFR part
110, into or upon the navigable waters
of the United States or adjoining
shorelines (33 U.S.C. 1321(b)(3)).
Section 311(j)(1)(C) requires the
President of the United States (the
President) to issue regulations
establishing procedures, methods,
equipment, and other requirements to
prevent discharges of oil to navigable
waters or adjoining shorelines from
vessels and facilities and to contain
such discharges. 33 U.S.C. 1321(j)(1)(C).
The President delegated the authority to
regulate non-transportation-related
onshore facilities to EPA in Executive
Order 11548 (35 FR 11677, July 22,
1970), which was superseded by
Executive Order 12777 (56 FR 54757,
October 22, 1991).
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The SPCC rule was originally
promulgated on December 11, 1973 (38
FR 34164). The 1973 SPCC rule defined
‘‘navigable waters’’ in 40 CFR 112.2(k)
as follows:
The term ‘‘navigable waters’’ of the
United States means ‘‘navigable waters’’
as defined in section 502(7) of the
FWPCA, and includes:
(1) All navigable waters of the United
States, as defined in judicial decisions
prior to passage of the 1972
Amendments to the FWPCA (Pub. L.
92–500), and tributaries of such waters;
(2) Interstate waters;
(3) Intrastate lakes, rivers, and streams
which are utilized by interstate travelers
for recreational or other purposes; and
(4) Intrastate lakes, rivers, and streams
from which fish or shellfish are taken
and sold in interstate commerce.
On July 17, 2002, EPA published a
final rule amending the SPCC rule at 40
CFR part 112, formally known as the Oil
Pollution Prevention regulation (67 FR
47042). The July 2002 rule became
effective on August 16, 2002, and
included revised requirements for SPCC
and Facility Response Plans (FRPs),
including a revision to the regulatory
definition of ‘‘navigable waters’’
(§ 112.2).
The American Petroleum Institute, the
Petroleum Marketers Association of
America and Marathon Oil Company
challenged certain aspects of this
regulation. On March 31, 2008, the U.S.
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2211
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325
311, 312
311, 325
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31–33
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42
492, 541, 551, 561–562
481–488
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District Court for the District of
Columbia ruled that the Agency’s
promulgation of the revised definition
of ‘‘navigable waters’’ in the July 2002
SPCC rule violated the Administrative
Procedure Act. (American Petroleum
Institute v. Johnson, 571 F.Supp. 2d
165, 173 (D.D.C. 2008)). The court
concluded that the Agency failed to
provide a reasoned explanation for its
decision to promulgate the broader
definition of ‘‘navigable waters.’’ (Id. at
173, 182–185.) The court vacated the
July 2002 SPCC regulatory definition of
‘‘navigable waters’’ and specifically
restored the 1973 SPCC regulatory
definition pending further rulemaking
or other appropriate Agency action. (Id.
at 186–87.) None of the parties appealed
the court’s decision.
II. This Final Rule
This final rule conforms the language
in the Code of Federal Regulations with
the legal state of the regulation defining
‘‘navigable waters’’ in the SPCC rule
following the District Court’s decision
invalidating the July 2002 SPCC rule
revisions to the definition of ‘‘navigable
waters.’’ This rule restores the 1973
SPCC rule definition of ‘‘navigable
waters’’ in conformance with the
District Court’s decision.
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III. Why Do We Have Good Cause for
Promulgating an Immediately Effective
Final Rule Without Prior Notice and
Opportunity for Public Comment?
Under the Administrative Procedure
Act (APA), 5 U.S.C. 553, agencies
generally are required to publish a
notice of proposed rulemaking and
provide an opportunity for the public to
comment on any substantive rulemaking
action. However, the Agency may issue
a rule without providing notice and an
opportunity for public comment, when
the Agency for good cause finds (and
incorporates the finding and a brief
statement of reasons therefore in the
rules issued) that notice and public
comment procedures thereon are
impracticable, unnecessary, or contrary
to the public interest. 5 U.S.C.
553(b)(3)(B). EPA has determined that
there is good cause for making this rule
final without prior proposal and
opportunity for comment because of the
court-ordered decision from the 2002
SPCC rule litigation. EPA finds that this
constitutes good cause under 5 U.S.C.
553(b)(B).
This rule merely conforms the
language in Clean Water Act section 311
regulations to the District Court’s
decision invalidating the revisions to
the regulatory definition of ‘‘navigable
waters’’ promulgated on July 17, 2002.
By restoring the 1973 SPCC rule
definition of ‘‘navigable waters,’’ the
revision in this final rule conforms the
regulations to reflect the legal status quo
in light of the District Court’s March 31,
2008 order, invalidating the July 2002
SPCC rule definition of ‘‘navigable
waters.’’ Therefore, pursuant to 5 U.S.C.
553(b)(3)(B), the Agency finds that
solicitation of public comment is
unnecessary because the court vacated
the July 2002 SPCC regulatory definition
of ‘‘navigable waters’’ and specifically
restored the 1973 SPCC regulatory
definition pending further rulemaking
or other appropriate Agency action.
Under 5 U.S.C. 553(d)(1) and (3), rules
must be published at least 30 days prior
to their effective date, except where the
rule ‘‘grants or recognizes an exemption
or relieves a restriction,’’ or where
justified by the Agency for ‘‘good
cause.’’ The good cause rationale
presented in the preceding paragraph
also applies herein. Because this rule
conforms to the published regulatory
text with the applicable regulations
following the District Court’s March 31,
2008 order, the Agency has good cause
to make this rule effective immediately.
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IV. Statutory and Executive Order
Reviews
A. General Requirements
This rule does not establish any new
requirements, mandates or procedures.
As explained above, this rule merely
conforms the SPCC regulatory definition
of ‘‘navigable waters’’ to reflect the
District Court’s March 31, 2008,
decision. This rule does not result in
any additional or new regulatory
requirements because it is merely
undertaken to conform the regulatory
language to that judicial determination.
Accordingly, EPA has determined that
this rule is a ‘‘significant regulatory
action’’ under Executive Order 12866,
and thus is subject to review by the
Office of Management and Budget
(OMB).
This final rule does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Burden is
defined at 5 CFR 1320.3(b). The rule
conforms the definition of ‘‘navigable
waters’’ to reflect the ruling in the July
2002 SPCC rule litigation and does not
establish or modify any information
reporting or recordkeeping
requirements. Therefore, this rule is not
subject to the requirements of the
Paperwork Reduction Act. Because this
rule is not subject to notice-andcomment requirements under the
Administrative Procedure Act or any
other statute, it is not subject to the
regulatory flexibility provisions of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). In addition, this rule does not
contain any unfunded mandate or
impose any enforceable duty or any
significant or unique impact on small
governments as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4). This rule also does not
impose any federalism requirements or
require prior consultation with tribal
government officials as specified by
Executive Order 13132 (64 FR 43255,
August 10, 1999) or Executive Order
13175 (65 FR 67249, November 9, 2000),
or involve special consideration of
environmental justice-related issues as
required by Executive Order 12898 (59
FR 7629, February 16, 1994).
This rule is not subject to Executive
Order 13045, ‘‘Protection of Children
from Environmental Health Risks and
Safety Risks’’ (62 FR 19885, April 23,
1997), because it is not economically
significant as defined under Executive
Order 12866 and is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001), because it is not a significant
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71943
regulatory action under Executive Order
12866. The requirements of section
12(d) of the National Technology
Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply.
B. Submission to Congress and the
Comptroller General
The Congressional Review Act (CRA),
5 U.S.C. 801 et seq, as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. Section 808 allows
the issuing agency to make a rule
effective sooner than otherwise
provided by the CRA if the agency
makes a good cause finding that notice
and public comment procedure is
impracticable, unnecessary or contrary
to the public interest. This
determination must be supported by a
brief statement. 5 U.S.C. 808(2). As
stated above, the Agency has made such
a good cause finding, including the
reasons stated, and established an
effective date of November 26, 2008.
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 United States prior to
publication of this rule in the Federal
Register. This action is not a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 112
Environmental protection, Navigable
waters, Oil pollution, Reporting and
recordkeeping requirements, Water
pollution control, Water resources.
Dated: November 20, 2008
Stephen L. Johnson,
Administrator.
In consideration of the foregoing, 40
CFR part 112 is amended as follows:
■
PART 112—OIL POLLUTION
PREVENTION
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; E.O. 12777 (October 18, 1991), 3 CFR,
1991 Comp., p. 351.
Subpart A—[Amended]
2. Amend § 112.2 by revising the
definition of ‘‘navigable waters’’ to read
as follows:
■
§ 112.2
*
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Definitions.
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Navigable waters of the United States
means ‘‘navigable waters’’ as defined in
section 502(7) of the FWPCA, and
includes:
(1) All navigable waters of the United
States, as defined in judicial decisions
prior to passage of the 1972
Amendments to the FWPCA (Pub. L.
92–500), and tributaries of such waters;
(2) Interstate waters;
(3) Intrastate lakes, rivers, and streams
which are utilized by interstate travelers
for recreational or other purposes; and
(4) Intrastate lakes, rivers, and streams
from which fish or shellfish are taken
and sold in interstate commerce.
*
*
*
*
*
[FR Doc. E8–28123 Filed 11–25–08; 8:45 am]
BILLING CODE 6560–50–P
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT: Jane
Smith, Special Review and
Reregistration Division (7508P), Office
of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460–
0001; telephone number: (703) 308–
0048; fax number: (703) 308–8005; email address: smith.jane-scott@epa.gov.
SUPPLEMENTARY INFORMATION:
ENVIRONMENTAL PROTECTION
AGENCY
I. General Information
40 CFR Part 180
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
This listing is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed underFOR FURTHER
INFORMATION CONTACT.
A. Does this Action Apply to Me?
[EPA–HQ–OPP–2007–1170; FRL–8390–7]
Modification of Pesticide Tolerance
Revocation for Diazinon
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This final rule amends the
pesticide tolerance regulation for
diazinon by modifying the revocation of
the tolerance for mushrooms. Pesticide
tolerances are established under the
Federal Food, Drug, and Cosmetic Act
(FFDCA). This final rule resolves an
objection filed by the American
Mushroom Institute in response to a
final rule on diazinon tolerances
published on September 10, 2008, by
granting the objection and modifying
the revocation of the diazinon tolerance
on mushrooms to expire on September
10, 2010.
DATES: This final rule is effective
November 26, 2008.
ADDRESSES: EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2007–1170. All documents in the
docket are listed in the docket index
available at https://www.regulations.gov.
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 in the electronic docket at
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B. How Can I Access Electronic Copies
of this Document?
In addition to accessing electronically
available documents at https://
www.regulations.gov, you may access
this Federal Register document
electronically through the EPA Internet
under the ‘‘Federal Register’’ listings at
https://www.epa.gov/fedrgstr. You may
also access a frequently updated
electronic version of 40 CFR part 180
through the Government Printing
Office’s e-CFR site at https://
www.gpoaccess.gov/ecfr.
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II. Prior Diazinon Tolerance
Rulemaking
On May 21, 2008 (73 FR 29456) (FRL–
8362–1), EPA proposed the revocation
of the tolerance for residues of diazinon,
(O, O-diethyl O-(6-methyl-2-(1methylethyl)-4-pyrimidinyl]phosphorothioate; CAS Reg. No. 333–
41–5) in/on the food commodity
mushroom at 0.75 parts per million
(ppm) in 40 CFR 180.153(a) because a
previous registration for the use of
diazinon in mushroom houses had been
canceled due in part to worker risk
concerns.
The preamble of the proposed rule
stated the following:
This proposed rule provides a comment
period of 60 days for any person to state an
interest in retaining a tolerance proposed for
revocation. If EPA receives a comment within
the 60–day period to that effect, EPA will not
proceed to revoke the tolerance immediately.
Within the 60–day comment period,
the American Mushroom Institute (AMI)
submitted a comment in response to the
proposed rule requesting the Agency
retain the diazinon tolerance on
mushrooms stating that AMI is working
to submit a new registration reinstating
the use of diazinon in mushroom
houses. AMI also stated that diazinon
remains a valuable and unique pest
management tool in mushroom
production facilities, and indicated that
an application would be filed to
reinstate the canceled mushroom house
use.
On September 10, 2008 (73 FR 52607)
(FRL–8379–9), EPA issued a final rule
revoking the tolerance for residues of
diazinon on mushrooms at 0.75 ppm
(among others), effective immediately.
The Agency acknowledged AMI’s
comment, nonetheless declining to
maintain the tolerance because AMI had
not stated an immediate need for the
tolerance, stating that ‘‘there are no
current or pending uses of diazinon in
mushroom houses and no resolution of
the exposure risk to workers during
application at this time.’’
III. AMI Objection
On November 4, 2008, AMI filed an
objection to the tolerance rulemaking
pursuant to 21 U.S.C. 346a(g)(2)(A),
objecting to the revocation of the
mushroom tolerance. AMI’s basis for the
objection is the statement in Unit I.C. of
the proposed rule that EPA would not
proceed to immediately revoke a
tolerance where someone indicates an
interest in retaining the tolerance.
IV. Order on Objection
The basis for AMI’s objection is
sound. Given EPA’s commitment in the
proposed rule not to immediately
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]]>Agencies
[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Rules and Regulations]
[Pages 71941-71944]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28123]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[EPA-HQ-OPA-2008-0569 FRL-8746-1]
RIN 2050-AG48
Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure Rule; Revisions to the Regulatory Definition of
``Navigable Waters''
AGENCY: Environmental Protection Agency.
ACTION: Final rule; Response to court order vacating regulatory
definition of navigable waters.
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SUMMARY: The Environmental Protection Agency (EPA) is promulgating a
final rule to amend a Clean Water Act (CWA) section 311 regulation that
defines the term ``navigable waters.'' On July 17, 2002, EPA
promulgated a final rule which included revisions to the definition of
``navigable waters'' in the Spill Prevention, Countermeasure and
Control (SPCC) regulation. In this action, EPA is announcing the
vacatur of the July 17, 2002 revisions to the definition of ``navigable
waters'' in accordance with an order, issued by the United States
District Court for the District of Columbia (D.D.C.) in American
Petroleum Institute v. Johnson, 571 F.Supp.2d 165 (D.D.C. 2008),
invalidating those revisions. The court decision also restored the
regulatory definition of ``navigable waters'' promulgated by EPA in
1973; consequently, we are amending the definition of ``navigable
waters'' in part 112 to comply with that decision.
DATES: This rule is effective November 26, 2008.
ADDRESSES: The public docket for this final rule, Docket ID No. EPA-HQ-
OPA-2008-0569, contains the information related to this rulemaking. All
documents in the docket are listed in an index at https://
www.regulations.gov. Although listed in the index, some information may
not be publicly available, such as Confidential Business Information
(CBI) or other information the disclosure of which 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 at https://
www.regulations.gov or in hard copy at the EPA Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number of the Public
Reading Room is 202-566-1744, and the telephone number to make an
appointment to view the docket is 202-566-0276.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP, and Oil Information Center at 800-424-9346
or TDD at 800-553-7672 (hearing impaired). In the Washington, DC
metropolitan area, contact the Superfund, TRI, EPCRA, RMP, and Oil
Information Center at 703-412-9810 or TDD 703-412-3323. For more
detailed information on specific aspects of this final rule, contact
Hugo Fleischman of EPA at 202-564-1968 (fleischman.hugo@epa.gov), U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460-0002, Mail Code 5104A.
SUPPLEMENTARY INFORMATION:
I. Background
A. Potentially Affected Entities
Persons or entities who own or operate facilities engaged in
drilling, producing, gathering, storing, processing, refining,
transferring, distributing, using or consuming oil or oil products,
which due to their location, could reasonably be expected to discharge
oil in quantities that may be harmful, as described in 40 CFR part 110
of this chapter, into or upon the navigable waters of the United States
or adjoining shorelines, could be affected by this rule. The rule
addresses the regulatory definition of ``navigable waters'' under the
Clean Water Act (CWA) section 311, a term that is important in
determining which owners or operators are required to prepare Spill
Prevention, Control and Countermeasure (SPCC) Plans and/or Facility
Response Plans (FRP) under 40 CFR part 112 for their facilities. As
described further below, this action does not increase regulatory
burdens, but rather conforms the language in EPA's CWA section 311
regulations to the outcome of a lawsuit challenging the regulatory
definition. Examples of entities that might potentially be affected
include:
[[Page 71942]]
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Industry sector NAICS code
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Oil Production................... 211111
Farms............................ 111, 112
Electric Utility Plants.......... 2211
Petroleum Refining and Related 324
Industries.
Chemical Manufacturing........... 325
Food Manufacturing............... 311, 312
Manufacturing Facilities Using 311, 325
and Storing Animal Fats and
Vegetable Oils.
Metal Manufacturing.............. 331, 332
Other Manufacturing.............. 31-33
Real Estate Rental and Leasing... 531-533
Retail Trade..................... 441-446, 448, 451-454
Contract Construction............ 23
Wholesale Trade.................. 42
Other Commercial................. 492, 541, 551, 561-562
Transportation................... 481-488
Arts Entertainment & Recreation.. 711-713
Other Services (Except Public 811-813
Administration).
Petroleum Bulk Stations and 4247
Terminals.
Education........................ 61
Hospitals & Other Health Care.... 621, 622
Accommodation and Food Services.. 721, 722
Fuel Oil Dealers................. 45431
Gasoline stations................ 4471
Information Finance and Insurance 51, 52
Mining........................... 212
Warehousing and Storage.......... 493
Religious Organizations.......... 813110
Military Installations........... 928110
Pipelines........................ 4861, 48691
Government....................... 92
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The list of potentially affected entities in the above table may
not be exhaustive. The Agency's goal is to provide a guide for readers
to consider regarding entities that potentially could be affected by
this action. However, this action may affect other entities not listed
in this table. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding section titled FOR FURTHER INFORMATION CONTACT.
B. The SPCC Rule and Litigation
Section 311 of the CWA prohibits the discharge of oil in quantities
that may be harmful, as described in 40 CFR part 110, into or upon the
navigable waters of the United States or adjoining shorelines (33
U.S.C. 1321(b)(3)). Section 311(j)(1)(C) requires the President of the
United States (the President) to issue regulations establishing
procedures, methods, equipment, and other requirements to prevent
discharges of oil to navigable waters or adjoining shorelines from
vessels and facilities and to contain such discharges. 33 U.S.C.
1321(j)(1)(C). The President delegated the authority to regulate non-
transportation-related onshore facilities to EPA in Executive Order
11548 (35 FR 11677, July 22, 1970), which was superseded by Executive
Order 12777 (56 FR 54757, October 22, 1991).
The SPCC rule was originally promulgated on December 11, 1973 (38
FR 34164). The 1973 SPCC rule defined ``navigable waters'' in 40 CFR
112.2(k) as follows:
The term ``navigable waters'' of the United States means
``navigable waters'' as defined in section 502(7) of the FWPCA, and
includes:
(1) All navigable waters of the United States, as defined in
judicial decisions prior to passage of the 1972 Amendments to the FWPCA
(Pub. L. 92-500), and tributaries of such waters;
(2) Interstate waters;
(3) Intrastate lakes, rivers, and streams which are utilized by
interstate travelers for recreational or other purposes; and
(4) Intrastate lakes, rivers, and streams from which fish or
shellfish are taken and sold in interstate commerce.
On July 17, 2002, EPA published a final rule amending the SPCC rule
at 40 CFR part 112, formally known as the Oil Pollution Prevention
regulation (67 FR 47042). The July 2002 rule became effective on August
16, 2002, and included revised requirements for SPCC and Facility
Response Plans (FRPs), including a revision to the regulatory
definition of ``navigable waters'' (Sec. 112.2).
The American Petroleum Institute, the Petroleum Marketers
Association of America and Marathon Oil Company challenged certain
aspects of this regulation. On March 31, 2008, the U.S. District Court
for the District of Columbia ruled that the Agency's promulgation of
the revised definition of ``navigable waters'' in the July 2002 SPCC
rule violated the Administrative Procedure Act. (American Petroleum
Institute v. Johnson, 571 F.Supp. 2d 165, 173 (D.D.C. 2008)). The court
concluded that the Agency failed to provide a reasoned explanation for
its decision to promulgate the broader definition of ``navigable
waters.'' (Id. at 173, 182-185.) The court vacated the July 2002 SPCC
regulatory definition of ``navigable waters'' and specifically restored
the 1973 SPCC regulatory definition pending further rulemaking or other
appropriate Agency action. (Id. at 186-87.) None of the parties
appealed the court's decision.
II. This Final Rule
This final rule conforms the language in the Code of Federal
Regulations with the legal state of the regulation defining ``navigable
waters'' in the SPCC rule following the District Court's decision
invalidating the July 2002 SPCC rule revisions to the definition of
``navigable waters.'' This rule restores the 1973 SPCC rule definition
of ``navigable waters'' in conformance with the District Court's
decision.
[[Page 71943]]
III. Why Do We Have Good Cause for Promulgating an Immediately
Effective Final Rule Without Prior Notice and Opportunity for Public
Comment?
Under the Administrative Procedure Act (APA), 5 U.S.C. 553,
agencies generally are required to publish a notice of proposed
rulemaking and provide an opportunity for the public to comment on any
substantive rulemaking action. However, the Agency may issue a rule
without providing notice and an opportunity for public comment, when
the Agency for good cause finds (and incorporates the finding and a
brief statement of reasons therefore in the rules issued) that notice
and public comment procedures thereon are impracticable, unnecessary,
or contrary to the public interest. 5 U.S.C. 553(b)(3)(B). EPA has
determined that there is good cause for making this rule final without
prior proposal and opportunity for comment because of the court-ordered
decision from the 2002 SPCC rule litigation. EPA finds that this
constitutes good cause under 5 U.S.C. 553(b)(B).
This rule merely conforms the language in Clean Water Act section
311 regulations to the District Court's decision invalidating the
revisions to the regulatory definition of ``navigable waters''
promulgated on July 17, 2002. By restoring the 1973 SPCC rule
definition of ``navigable waters,'' the revision in this final rule
conforms the regulations to reflect the legal status quo in light of
the District Court's March 31, 2008 order, invalidating the July 2002
SPCC rule definition of ``navigable waters.'' Therefore, pursuant to 5
U.S.C. 553(b)(3)(B), the Agency finds that solicitation of public
comment is unnecessary because the court vacated the July 2002 SPCC
regulatory definition of ``navigable waters'' and specifically restored
the 1973 SPCC regulatory definition pending further rulemaking or other
appropriate Agency action.
Under 5 U.S.C. 553(d)(1) and (3), rules must be published at least
30 days prior to their effective date, except where the rule ``grants
or recognizes an exemption or relieves a restriction,'' or where
justified by the Agency for ``good cause.'' The good cause rationale
presented in the preceding paragraph also applies herein. Because this
rule conforms to the published regulatory text with the applicable
regulations following the District Court's March 31, 2008 order, the
Agency has good cause to make this rule effective immediately.
IV. Statutory and Executive Order Reviews
A. General Requirements
This rule does not establish any new requirements, mandates or
procedures. As explained above, this rule merely conforms the SPCC
regulatory definition of ``navigable waters'' to reflect the District
Court's March 31, 2008, decision. This rule does not result in any
additional or new regulatory requirements because it is merely
undertaken to conform the regulatory language to that judicial
determination. Accordingly, EPA has determined that this rule is a
``significant regulatory action'' under Executive Order 12866, and thus
is subject to review by the Office of Management and Budget (OMB).
This final rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. Burden is defined at 5 CFR 1320.3(b). The rule conforms the
definition of ``navigable waters'' to reflect the ruling in the July
2002 SPCC rule litigation and does not establish or modify any
information reporting or recordkeeping requirements. Therefore, this
rule is not subject to the requirements of the Paperwork Reduction Act.
Because this rule is not subject to notice-and-comment requirements
under the Administrative Procedure Act or any other statute, it is not
subject to the regulatory flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). In addition, this rule does not
contain any unfunded mandate or impose any enforceable duty or any
significant or unique impact on small governments as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also
does not impose any federalism requirements or require prior
consultation with tribal government officials as specified by Executive
Order 13132 (64 FR 43255, August 10, 1999) or Executive Order 13175 (65
FR 67249, November 9, 2000), or involve special consideration of
environmental justice-related issues as required by Executive Order
12898 (59 FR 7629, February 16, 1994).
This rule is not subject to Executive Order 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant as
defined under Executive Order 12866 and is not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001),
because it is not a significant regulatory action under Executive Order
12866. The requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
B. Submission to Congress and the Comptroller General
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq, as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public comment
procedure is impracticable, unnecessary or contrary to the public
interest. This determination must be supported by a brief statement. 5
U.S.C. 808(2). As stated above, the Agency has made such a good cause
finding, including the reasons stated, and established an effective
date of November 26, 2008. 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 United States
prior to publication of this rule in the Federal Register. This action
is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 112
Environmental protection, Navigable waters, Oil pollution,
Reporting and recordkeeping requirements, Water pollution control,
Water resources.
Dated: November 20, 2008
Stephen L. Johnson,
Administrator.
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In consideration of the foregoing, 40 CFR part 112 is amended as
follows:
PART 112--OIL POLLUTION PREVENTION
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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; E.O. 12777
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.
Subpart A--[Amended]
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2. Amend Sec. 112.2 by revising the definition of ``navigable waters''
to read as follows:
Sec. 112.2 Definitions.
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[[Page 71944]]
Navigable waters of the United States means ``navigable waters'' as
defined in section 502(7) of the FWPCA, and includes:
(1) All navigable waters of the United States, as defined in
judicial decisions prior to passage of the 1972 Amendments to the FWPCA
(Pub. L. 92-500), and tributaries of such waters;
(2) Interstate waters;
(3) Intrastate lakes, rivers, and streams which are utilized by
interstate travelers for recreational or other purposes; and
(4) Intrastate lakes, rivers, and streams from which fish or
shellfish are taken and sold in interstate commerce.
* * * * *
[FR Doc. E8-28123 Filed 11-25-08; 8:45 am]
BILLING CODE 6560-50-P
