Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Rule Requirements-Amendments, 2461-2465 [E9-830]
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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules
Air Act (CAA) for the Crittenden County
ozone nonattainment area. EPA is
proposing to approve the SIP revision
because it satisfies the Emissions
Inventory and Emissions Statements
requirements for 8-hour ozone
nonattainment areas. EPA is proposing
to approve the revision pursuant to
section 110 of the CAA.
DATES: Written comments should be
received on or before February 17, 2009.
Comments may be mailed to
Mr. Guy Donaldson, Chief, Air Planning
Section (6PD–L), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
Comments may also be submitted
electronically or through hand deliver/
courier by following the detailed
instructions in the ADDRESSES section of
the direct final rule located in the rules
section of this Federal Register.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Dylan Van Dyne, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone 214–665–7113; fax number
214–665–7263; e-mail address
vandyne.dylan@epa.gov.
In the
final section of this Federal Register,
EPA is approving the State’s SIP
submittal as a direct rule without prior
proposal because the Agency views this
as non-controversial submittal and
anticipates no adverse comments. A
detailed rationale for the approval is set
forth in the direct final rule. If no
adverse comments are received in
response to this action no further
activity is contemplated. If EPA receives
adverse comments, the direct final rule
will be withdrawn and all public
comments received will be addressed in
a subsequent final rule based on this
proposed rule. EPA will not institute a
second comment period. Any parties
interested in commenting on this action
should do so at this time.
For additional information see the
direct final rule, which is located in the
rules section of this Federal Register.
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SUPPLEMENTARY INFORMATION:
Dated: December 24, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E9–620 Filed 1–14–09; 8:45 am]
BILLING CODE 6560–50–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[EPA–HQ–OPA–2008–0821; FRL–8762–6]
RIN 2050–AG650
Oil Pollution Prevention; Spill
Prevention, Control, and
Countermeasure Rule Requirements—
Amendments
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: The Environmental Protection
Agency (EPA or the Agency) is
proposing to amend the Spill
Prevention, Control, and
Countermeasure (SPCC) rule to tailor
and streamline the requirements for the
dairy industry. Specifically, EPA
proposes to exempt milk containers and
associated piping and appurtenances
from the SPCC requirements provided
they are constructed according to the
current applicable 3–A Sanitary
Standards, and are subject to the current
applicable Grade ‘‘A’’ Pasteurized Milk
Ordinance (PMO) or a State dairy
regulatory requirement equivalent to the
current applicable PMO. This proposal
addresses concerns raised specifically
by the dairy sector on the applicability
of the SPCC requirements to milk
containers.
DATES: Comments must be received on
or before February 17, 2009.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OPA–2008–0821, by one of the
following methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• Mail: EPA Docket, Environmental
Protection Agency, Mail code: 2822T,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460.
• Hand Delivery: EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. Such deliveries
are only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OPA–2008–
0821. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
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whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket, visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in 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 for the Public Reading Room is
(202) 566–1744, and the telephone
number for the EPA 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
proposed rule, contact either Vanessa E.
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Rodriguez at 202–564–7913
(rodriguez.vanessa@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: The
contents of this preamble are:
I. General Information
II. Entities Potentially Affected by This
Proposed Rule
III. Statutory Authority and Delegation of
Authority
IV. Background
V. This Action
A. 3-A Sanitary Standards and PMO
Requirements
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
to Address Environmental Justice in
Minority Populations and Low-Income
Populations
I. General Information
The U.S. Environmental Protection
Agency (EPA or the Agency) is
proposing an amendment to the Spill
Prevention, Control, and
Countermeasure (SPCC) rule to exempt
storage containers (both bulk and
processing vessels) containing milk, as
well as associated piping and
appurtenances from the SPCC
requirements, if they are constructed
according to the current applicable 3–A
Sanitary Standards, and are subject to
the current applicable Grade ‘‘A’’
Pasteurized Milk Ordinance (PMO) or a
State dairy regulatory requirement
equivalent to the current applicable
PMO.
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II. Entities Potentially Affected by This
Proposed Rule
Industry sector
Farms ..............................
Food Manufacturing ........
NAICS code
111, 112
311, 312
The Agency’s goal is to provide a
guide for readers to consider regarding
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entities that potentially could be
affected by this action. However, this
action may affect other entities not
listed in this table. The list of
potentially affected entities in the above
table may not be exhaustive. 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 and Delegation
of Authority
Section 311(j)(1)(C) of the Clean Water
Act (CWA or the Act), 33 U.S.C.
1321(j)(1)(C), requires 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.
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 replaced by Executive
Order 12777 (56 FR 54757, October 22,
1991). A Memorandum of
Understanding (MOU) between the U.S.
Department of Transportation (DOT)
and EPA (36 FR 24080, November 24,
1971) established the definitions of
transportation-related and nontransportation-related facilities. An
MOU between EPA, the U.S.
Department of the Interior (DOI), and
DOT (59 FR 34102, July 1, 1994) redelegated the responsibility to regulate
certain offshore facilities from DOI to
EPA.
Then in 1995, Congress enacted the
Edible Oil Regulatory Reform Act
(EORRA), 33 U.S.C. 2720, which
mandates that Federal agencies 1 in
issuing or enforcing any regulation or
establishing any interpretation or
guideline relating to the transportation,
storage, discharge, release, emission or
disposal of oil differentiate between and
establish separate classes for various
types of oils, specifically: animal fats
and oils and greases, and fish and
marine mammal oils; oils of vegetable
origin; petroleum oils, and other nonpetroleum oils and greases. In
differentiating between these classes of
oils, Federal agencies are directed to
consider differences in the physical,
chemical, biological, and other
properties, and in the environmental
effects of the classes.
1 The requirements of the Edible Oil Regulatory
Reform Act do not apply to the Food and Drug
Administration and the Food Safety and Inspection
Service.
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IV. Background
EPA has promulgated a series of
amendments to the SPCC rule. Facilities
handling animal fats and vegetable oils
(AFVOs), including dairy farms that are
subject to the SPCC rule because of their
oil storage capacity, may benefit from a
number of these amendments,
including: streamlined requirements
promulgated for qualified facilities
(‘‘Tier II’’), a basic set of requirements
for a subset of qualified facilities (‘‘Tier
I’’); amendments to the security,
integrity testing, and facility diagram
requirements; an exemption from the
loading/unloading rack requirements;
an exemption for pesticide application
equipment and related mix containers,
and for single-family residential heating
oil containers; and clarification for fuel
nurse tanks and for the definition of
‘‘facility.’’
Additionally, the SPCC rule
amendments differentiate integrity
testing requirements at § 112.12(c)(6) for
an owner or operator of a facility that
handles certain types of AFVOs. EPA
provides the Professional Engineer (PE)
or an owner or operator self-certifying
an SPCC Plan with an alternative option
for integrity testing for containers that
store AFVOs, based on compliance with
certain U.S. Food and Drug
Administration (FDA) regulations and
other criteria.
Milk typically contains a percentage
of animal fat, which is a non-petroleum
oil. Thus, containers storing milk are
subject to the SPCC rule when they meet
the applicability criteria set forth in
§ 112.1. In the SPCC rule, the term ‘‘bulk
storage container’’ is defined at § 112.2
as ‘‘any container used to store oil.’’
Therefore, bulk storage containers
storing milk are subject to the applicable
provisions under § 112.12. Additionally,
milk is processed in vessels during the
pasteurization process. These vessels,
while not bulk storage containers, are
considered oil-filled manufacturing
equipment and are subject to the general
provisions of the SPCC rule under
§ 112.7.
In response to EPA’s October 2007
proposal for amendments to the SPCC
rule (72 FR 58378, October 15, 2007),
several commenters requested that EPA
exempt containers used to store milk
from the SPCC requirements.
Specifically, these commenters
suggested that milk storage containers
be exempted from the SPCC
requirements because the Grade ‘‘A’’
Pasteurized Milk Ordinance (PMO)
addresses milk storage and tank
integrity. These commenters identified
the PMO, which specifically addresses
milk intended for human consumption,
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as a model ordinance maintained
through a cooperative agreement
between the States, the FDA, and the
regulated community. States typically
adopt it either by reference, or by
directly incorporating similar
requirements into their statutes or
regulations.
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V. This Action
EPA is proposing to exempt from
SPCC requirements containers and
associated piping and appurtenances
that store milk provided they are
constructed according to current
applicable 3–A Sanitary Standards, and
are subject to the current applicable
PMO or a State dairy regulatory
requirement equivalent to the current
applicable PMO. In addition, the
capacity of these milk containers would
not be included in a facility’s total oil
storage capacity calculation (see
112.1(d)(2)(ii).
A. 3–A Sanitary Standards and PMO
Requirements
Milk containers and their associated
piping and appurtenances are generally
constructed according to an industry
standard established by the 3–A
Sanitary Standards (McLean, VA),
which satisfy the PMO construction
requirements for milk containers and
associated piping and appurtenances.
These standards include American Iron
and Steel Institute 300 Series stainless
steel (i.e., austenitic stainless steel) or a
metal that is at least as corrosion
resistant and that meet specific design
criteria, including, but not limited to,
requirements for contact with milk (e.g.,
polished contact surfaces). Milk
containers and associated piping and
appurtenances must have smooth and
impervious surfaces that are free of
breaks and corrosion, including at joints
and seams. These standards further
specify the requirements for easy access
to inspect the container’s internal
surfaces. The U.S. Department of
Agriculture (USDA) also recognizes the
3–A Sanitary Standards-compliant
containers under 7 CFR part 58 for
purposes of USDA milk grading and
inspection programs.
All milk handling operations subject
to the PMO are required to have an
operating permit, and are subject to
inspection by the state dairy regulatory
agencies. That is, PMO establishes
criteria for the permitting, inspection
and enforcement of milk handling
equipment and operations that govern
all processes for milk intended for
human consumption. These include, but
are not limited to, specifications for the
design and construction of milk
handling equipment, equipment
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sanitation and maintenance procedures,
temperature controls, and pasteurization
standards. In addition, because many
kinds of harmful bacteria can grow
rapidly in milk, and thus the PMO
requires that milk containers be
frequently emptied, cleaned, and
sanitized (for example, every 72 hours).
Such frequent cleaning of the containers
suggests that any leaks or deterioration
of container integrity would be quickly
identified. PMO also requires an
inspection of the dairy farms or milk
processing plants by the statedesignated regulatory agency prior to
issuing a permit, and routine
inspections thereafter (for example, at
dairy farms at least once every six
months) by a state designated regulatory
agency. Inspections at these facilities
encompass those elements associated
with the milk operation, including the
milk containers, and associated piping
and appurtenances. Should the
inspection result in two consecutive
violations of the same criterion, PMO
enforcement provisions may result in
the suspension or revocation of the
facility’s operating permit.
As a result, EPA believes that these
requirements may provide a basis for an
exemption of milk containers and their
associated piping and appurtenances
from the SPCC rule provided they are
constructed in accordance with the
current applicable 3–A Sanitary
Standards, and are subject to the current
applicable PMO sanitation requirements
or a State dairy regulatory equivalent to
current applicable PMO.
EPA is requesting comment on this
proposal. An owner or operator of a
facility that is subject to SPCC, that has
milk storage containers, and associated
piping and appurtenances constructed
in accordance with the current
applicable 3–A Sanitary Standards, and
that is effectively implementing the
current applicable PMO sanitation
requirements, is implementing
substantial measures to prevent milk
spoilage and contamination. While
these measures are not specifically
intended for oil spill prevention, control
and countermeasure purposes, we
believe they may prevent discharges of
oil in quantities that are harmful and
seek comment on this. We also seek
comment on an exemption for milk
product containers and their associated
piping and appurtenances from the
SPCC rule provided they are also
constructed in accordance with the
current applicable 3–A Sanitary
Standards, and are subject to the current
applicable PMO sanitation requirements
or a State dairy regulatory equivalent to
current applicable PMO. EPA is also
requesting comment on how to address
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milk storage containers (including totes)
that may not be constructed to 3–A
Sanitary Standards under the SPCC rule
and whether they should also be
exempted from the SPCC requirements,
provided they are subject to the current
applicable PMO or a State dairy
regulatory requirement equivalent to the
current applicable PMO. Those
commenters who support expanding the
proposal to include those containers
that are not constructed to 3–A Sanitary
Standards should provide supporting
data and information in order for the
Agency to consider such an approach.
EPA requests comment on any other
alternative approaches to address milk,
and milk product containers and
associated piping and appurtenances
under the SPCC rule. The Agency
requests comments on whether any
action to address milk, and milk
product containers, and associated
piping and appurtenances under the
SPCC requirements is warranted. Any
alternative approaches offered,
including no action, must include an
appropriate rationale and supporting
data in order for the Agency to be able
to consider them for final action.
VI. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under section 3(f)(1) of Executive
Order (EO) 12866 (58 FR 51735, October
4, 1993), this action is an ‘‘economically
significant regulatory action’’ because it
is likely to have an annual effect on the
economy of $100 million or more.
Accordingly, EPA submitted this action
to the Office of Management and Budget
(OMB) for review under EO 12866, and
any changes made in response to OMB
recommendations have been
documented in the docket for this
action.
In addition, EPA prepared an analysis
of the potential costs and benefits
associated with this action. This
analysis is contained in ‘‘Regulatory
Impact Analysis’’ for the Proposed
Amendment to the Oil Pollution
Prevention Regulations to Exempt
Certain Milk Containers and Associated
Piping and Appurtenances (40 CFR
PART 112)’’. A copy of the analysis is
available in the docket for this action,
and the analysis is briefly summarized
in section C.
B. Paperwork Reduction Act
This proposed action does not impose
any new information collection burden.
The proposed rule amendment would
exempt certain milk containers and
associated piping and appurtenances
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from the rule. However, the Office of
Management and Budget (OMB) has
previously approved the information
collection requirements contained in the
existing regulations, 40 CFR part 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.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act
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 proposed rule on small entities,
a small entity is defined as: (1) A small
business as defined in the U.S. Small
Business Administration (SBA)’s
regulations at 13 CFR 121.201—SBA
defines small businesses by category of
business using North American Industry
Classification System (NAICS) codes,
and in the case of farms and oil
production facilities, which constitute a
large percentage of the facilities affected
by this proposed rule, generally defines
small businesses as having less than
$0.5 million to $27.5 million per year in
sales receipts, depending on the
industry, or 500 or fewer 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 that is independently owned
and operated and is not dominant in its
field.
After considering the economic
impacts of this proposed rule on small
entities, the Agency certifies that this
action would 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 analyses is to
identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the
proposed rule on small entities’’ (5
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U.S.C. 603 and 604). Thus, an agency
may certify that a rule would 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.
Under this proposal, EPA would
exempt milk storage containers and
associated piping and appurtenances
that are constructed according to 3–A
Sanitary Standards and are subject to
the current applicable Grade ‘‘A’’
Pasteurized Milk Ordinance (PMO), or
an equivalent state dairy requirement to
the current applicable PMO from SPCC
rule requirements. Overall, EPA
estimates that this proposed action
would reduce annual compliance costs
by approximately $155 million for
owners and operators of affected
facilities. Total costs were annualized
over a 10-year period using a 7-percent
discount rate. To derive this savings
estimate, EPA first estimated the
number of dairy farms and milk
processing facilities that would be
affected each year (2010–2019) by the
proposed rule. EPA next analyzed the
expected milk and fuel oil storage
capacity of dairy farms with varying
numbers of cattle based on daily
production rate per cow, storage
requirements for milk, and
conversations with industry
representatives. EPA also estimated the
milk and fuel oil storage capacity of
milk processing facilities, and estimated
the cost savings associated with the
exemption for milk storage containers at
both dairy farms and milk processing
facilities. These savings include
secondary containment costs, cost
savings from preparing and maintaining
an SPCC Plan for a smaller facility, and,
for Qualified Facilities, preparing only a
Plan Template and saving PE
certification costs. A certain number of
dairy farms are expected to become
exempt as a result of the amendments.
EPA has therefore concluded that this
proposed rule would relieve regulatory
burden for small entities and therefore,
certify that this proposed action will not
have a significant economic impact on
a substantial number of small entities.
EPA continues to be interested in the
potential impacts of the proposed rule
on small entities and welcomes
comments on issues related to such
impacts.
D. Unfunded Mandates Reform Act
This proposed 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
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governments or the private sector. The
proposed 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 proposed 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 proposed
amendments impose no enforceable
duty on any small government.
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 proposed rule does not have
federalism implications. It would 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 the Clean
Water Act (CWA) section 311(o), States
may impose additional requirements,
including more stringent requirements,
relating to the prevention of oil
discharges to navigable waters and
adjoining shorelines. EPA recognizes
that some States have more stringent
requirements (56 FR 54612, October 22,
1991). This proposed rule would not
preempt State law or regulations. Thus,
Executive Order 13132 does not apply
to this proposed 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). This proposed rule would not
significantly or uniquely affect
communities of Indian tribal
governments. Thus, Executive Order
13175 does not apply to this proposed
rule. EPA specifically solicits additional
comment on this proposed action from
tribal officials.
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G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
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 proposed rule is not subject to
Executive Order 13045 because it does
not establish an environmental standard
intended to mitigate health or safety
risks.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant
energy action’’ as defined in Executive
Order 13211 (66 FR 18355 (May 22,
2001)), because it is not likely to have
a significant adverse effect on the
supply, distribution, or use of energy.
The overall effect of the proposed rule
is to decrease the regulatory burden on
facility owners or operators subject to its
provisions.
mstockstill on PROD1PC66 with PROPOSALS
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law No.
104–113 (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 proposed rulemaking involves
technical standards. EPA proposes to
use the 3–A Sanitary Standards,
‘‘Storage Tanks for Milk and Milk
Products’’, 3A 01–08, November 2001,
developed by 3–A Sanitary Standards,
Inc. A copy of these standards may be
obtained from the 3–A Sanitary
Standards online store at https://
www.techstreet.com/3Agate.html; by
contacting the organization at 6888 Elm
Street, Suite 2D, McLean, Virginia
22101; by phone at (703) 790–0295; or
by facsimile at (703) 761–6284. EPA is
proposing an exemption to the SPCC
rule based on the 3–A Sanitary
Standards, because an owner and
VerDate Nov<24>2008
18:55 Jan 14, 2009
Jkt 217001
operator of a facility that is subject to
SPCC, that has milk storage containers
and associated piping and
appurtenances constructed in
accordance with 3–A Sanitary
Standards, and that is effectively
implementing PMO sanitation
requirements, may already be providing
measures to prevent, control and
provide countermeasures for discharges
of oil in quantities that are harmful.
EPA welcomes comments on this
aspect of the proposed rulemaking and,
specifically, invites the public to
identify potentially-applicable
voluntary consensus standards and to
explain why such standards should be
used in this regulation.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 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 this
proposed rule will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it does not affect the level of
protection provided to human health or
the environment. The overall effect of
the action is to decrease the regulatory
burden on facility owners or operators
subject to its provisions.
List of Subjects in 40 CFR Part 112
Environmental protection, Animal
fats and vegetable oils, Farms, Milk, Oil
pollution, Tanks, Water pollution
control, Water resources.
Dated: January 9, 2009.
Stephen L. Johnson,
Administrator.
For the reasons stated in the
preamble, the Environmental Protection
Agency proposes to amend 40 CFR part
112 as follows:
PART 112—OIL POLLUTION
PREVENTION
1. The authority citation for part 112
continues to read as follows:
PO 00000
Frm 00041
Fmt 4702
Sfmt 4702
2465
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.
Subpart A—[Amended]
2. Amend § 112.1 by adding
paragraphs (d)(2)(ii)(G) and (d)(13) to
read as follows:
§ 112.1
General applicability.
*
*
*
*
*
(d) * * *
(2) * * *
(ii) * * *
(G) The capacity of any milk container
and associated piping and
appurtenances that are constructed
according to current applicable 3–A
Sanitary Standards, and that are subject
to current applicable Grade ‘‘A’’
Pasteurized Milk Ordinance or a State
dairy regulatory requirement equivalent
to the current applicable Grade ‘‘A’’
Pasteurized Milk Ordinance.
*
*
*
*
*
(13) Any milk container and
associated piping and appurtenances
that are constructed according to current
applicable 3–A Sanitary Standards, and
that are subject to current applicable
Grade ‘‘A’’ Pasteurized Milk Ordinance
or a State dairy regulatory requirement
equivalent to the current applicable
Grade ‘‘A’’ Pasteurized Milk Ordinance.
*
*
*
*
*
[FR Doc. E9–830 Filed 1–14–09; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS–R2–ES–2008–0059; MO 9221050083–
B2]
Endangered and Threatened Wildlife
and Plants; Status Review of the Bald
Eagle (Haliaeetus leucocephalus) in the
Sonoran Desert Area of Central
Arizona and Northwestern Mexico
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Notice of continuing
information collection for a status
review.
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce the
continuation of information collection
on a status review for the bald eagle
(Haliaeetus leucocephalus) in the
Sonoran Desert area of central Arizona
and northwestern Mexico, hereafter
referred to as the ‘‘Sonoran Desert area
bald eagle.’’ Through this action, we
E:\FR\FM\15JAP1.SGM
15JAP1
Agencies
[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Proposed Rules]
[Pages 2461-2465]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-830]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[EPA-HQ-OPA-2008-0821; FRL-8762-6]
RIN 2050-AG650
Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure Rule Requirements--Amendments
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to amend the Spill Prevention, Control, and Countermeasure
(SPCC) rule to tailor and streamline the requirements for the dairy
industry. Specifically, EPA proposes to exempt milk containers and
associated piping and appurtenances from the SPCC requirements provided
they are constructed according to the current applicable 3-A Sanitary
Standards, and are subject to the current applicable Grade ``A''
Pasteurized Milk Ordinance (PMO) or a State dairy regulatory
requirement equivalent to the current applicable PMO. This proposal
addresses concerns raised specifically by the dairy sector on the
applicability of the SPCC requirements to milk containers.
DATES: Comments must be received on or before February 17, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2008-0821, by one of the following methods:
https://www.regulations.gov: Follow the on-line
instructions for submitting comments.
Mail: EPA Docket, Environmental Protection Agency, Mail
code: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: EPA/DC, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington, DC. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OPA-
2008-0821. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://
www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at https://www.epa.gov/
epahome/dockets.htm.
Docket: All documents in the docket are listed in the https://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in 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 for the
Public Reading Room is (202) 566-1744, and the telephone number for the
EPA 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 proposed rule, contact
either Vanessa E.
[[Page 2462]]
Rodriguez at 202-564-7913 (rodriguez.vanessa@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: The contents of this preamble are:
I. General Information
II. Entities Potentially Affected by This Proposed Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
A. 3-A Sanitary Standards and PMO Requirements
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
The U.S. Environmental Protection Agency (EPA or the Agency) is
proposing an amendment to the Spill Prevention, Control, and
Countermeasure (SPCC) rule to exempt storage containers (both bulk and
processing vessels) containing milk, as well as associated piping and
appurtenances from the SPCC requirements, if they are constructed
according to the current applicable 3-A Sanitary Standards, and are
subject to the current applicable Grade ``A'' Pasteurized Milk
Ordinance (PMO) or a State dairy regulatory requirement equivalent to
the current applicable PMO.
II. Entities Potentially Affected by This Proposed Rule
------------------------------------------------------------------------
Industry sector NAICS code
------------------------------------------------------------------------
Farms................................................ 111, 112
Food Manufacturing................................... 311, 312
------------------------------------------------------------------------
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. The list of potentially affected entities in the above table may
not be exhaustive. 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 and Delegation of Authority
Section 311(j)(1)(C) of the Clean Water Act (CWA or the Act), 33
U.S.C. 1321(j)(1)(C), requires 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. 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 replaced by Executive Order 12777 (56
FR 54757, October 22, 1991). A Memorandum of Understanding (MOU)
between the U.S. Department of Transportation (DOT) and EPA (36 FR
24080, November 24, 1971) established the definitions of
transportation-related and non-transportation-related facilities. An
MOU between EPA, the U.S. Department of the Interior (DOI), and DOT (59
FR 34102, July 1, 1994) re-delegated the responsibility to regulate
certain offshore facilities from DOI to EPA.
Then in 1995, Congress enacted the Edible Oil Regulatory Reform Act
(EORRA), 33 U.S.C. 2720, which mandates that Federal agencies \1\ in
issuing or enforcing any regulation or establishing any interpretation
or guideline relating to the transportation, storage, discharge,
release, emission or disposal of oil differentiate between and
establish separate classes for various types of oils, specifically:
animal fats and oils and greases, and fish and marine mammal oils; oils
of vegetable origin; petroleum oils, and other non-petroleum oils and
greases. In differentiating between these classes of oils, Federal
agencies are directed to consider differences in the physical,
chemical, biological, and other properties, and in the environmental
effects of the classes.
---------------------------------------------------------------------------
\1\ The requirements of the Edible Oil Regulatory Reform Act do
not apply to the Food and Drug Administration and the Food Safety
and Inspection Service.
---------------------------------------------------------------------------
IV. Background
EPA has promulgated a series of amendments to the SPCC rule.
Facilities handling animal fats and vegetable oils (AFVOs), including
dairy farms that are subject to the SPCC rule because of their oil
storage capacity, may benefit from a number of these amendments,
including: streamlined requirements promulgated for qualified
facilities (``Tier II''), a basic set of requirements for a subset of
qualified facilities (``Tier I''); amendments to the security,
integrity testing, and facility diagram requirements; an exemption from
the loading/unloading rack requirements; an exemption for pesticide
application equipment and related mix containers, and for single-family
residential heating oil containers; and clarification for fuel nurse
tanks and for the definition of ``facility.''
Additionally, the SPCC rule amendments differentiate integrity
testing requirements at Sec. 112.12(c)(6) for an owner or operator of
a facility that handles certain types of AFVOs. EPA provides the
Professional Engineer (PE) or an owner or operator self-certifying an
SPCC Plan with an alternative option for integrity testing for
containers that store AFVOs, based on compliance with certain U.S. Food
and Drug Administration (FDA) regulations and other criteria.
Milk typically contains a percentage of animal fat, which is a non-
petroleum oil. Thus, containers storing milk are subject to the SPCC
rule when they meet the applicability criteria set forth in Sec.
112.1. In the SPCC rule, the term ``bulk storage container'' is defined
at Sec. 112.2 as ``any container used to store oil.'' Therefore, bulk
storage containers storing milk are subject to the applicable
provisions under Sec. 112.12. Additionally, milk is processed in
vessels during the pasteurization process. These vessels, while not
bulk storage containers, are considered oil-filled manufacturing
equipment and are subject to the general provisions of the SPCC rule
under Sec. 112.7.
In response to EPA's October 2007 proposal for amendments to the
SPCC rule (72 FR 58378, October 15, 2007), several commenters requested
that EPA exempt containers used to store milk from the SPCC
requirements. Specifically, these commenters suggested that milk
storage containers be exempted from the SPCC requirements because the
Grade ``A'' Pasteurized Milk Ordinance (PMO) addresses milk storage and
tank integrity. These commenters identified the PMO, which specifically
addresses milk intended for human consumption,
[[Page 2463]]
as a model ordinance maintained through a cooperative agreement between
the States, the FDA, and the regulated community. States typically
adopt it either by reference, or by directly incorporating similar
requirements into their statutes or regulations.
V. This Action
EPA is proposing to exempt from SPCC requirements containers and
associated piping and appurtenances that store milk provided they are
constructed according to current applicable 3-A Sanitary Standards, and
are subject to the current applicable PMO or a State dairy regulatory
requirement equivalent to the current applicable PMO. In addition, the
capacity of these milk containers would not be included in a facility's
total oil storage capacity calculation (see 112.1(d)(2)(ii).
A. 3-A Sanitary Standards and PMO Requirements
Milk containers and their associated piping and appurtenances are
generally constructed according to an industry standard established by
the 3-A Sanitary Standards (McLean, VA), which satisfy the PMO
construction requirements for milk containers and associated piping and
appurtenances. These standards include American Iron and Steel
Institute 300 Series stainless steel (i.e., austenitic stainless steel)
or a metal that is at least as corrosion resistant and that meet
specific design criteria, including, but not limited to, requirements
for contact with milk (e.g., polished contact surfaces). Milk
containers and associated piping and appurtenances must have smooth and
impervious surfaces that are free of breaks and corrosion, including at
joints and seams. These standards further specify the requirements for
easy access to inspect the container's internal surfaces. The U.S.
Department of Agriculture (USDA) also recognizes the 3-A Sanitary
Standards-compliant containers under 7 CFR part 58 for purposes of USDA
milk grading and inspection programs.
All milk handling operations subject to the PMO are required to
have an operating permit, and are subject to inspection by the state
dairy regulatory agencies. That is, PMO establishes criteria for the
permitting, inspection and enforcement of milk handling equipment and
operations that govern all processes for milk intended for human
consumption. These include, but are not limited to, specifications for
the design and construction of milk handling equipment, equipment
sanitation and maintenance procedures, temperature controls, and
pasteurization standards. In addition, because many kinds of harmful
bacteria can grow rapidly in milk, and thus the PMO requires that milk
containers be frequently emptied, cleaned, and sanitized (for example,
every 72 hours). Such frequent cleaning of the containers suggests that
any leaks or deterioration of container integrity would be quickly
identified. PMO also requires an inspection of the dairy farms or milk
processing plants by the state-designated regulatory agency prior to
issuing a permit, and routine inspections thereafter (for example, at
dairy farms at least once every six months) by a state designated
regulatory agency. Inspections at these facilities encompass those
elements associated with the milk operation, including the milk
containers, and associated piping and appurtenances. Should the
inspection result in two consecutive violations of the same criterion,
PMO enforcement provisions may result in the suspension or revocation
of the facility's operating permit.
As a result, EPA believes that these requirements may provide a
basis for an exemption of milk containers and their associated piping
and appurtenances from the SPCC rule provided they are constructed in
accordance with the current applicable 3-A Sanitary Standards, and are
subject to the current applicable PMO sanitation requirements or a
State dairy regulatory equivalent to current applicable PMO.
EPA is requesting comment on this proposal. An owner or operator of
a facility that is subject to SPCC, that has milk storage containers,
and associated piping and appurtenances constructed in accordance with
the current applicable 3-A Sanitary Standards, and that is effectively
implementing the current applicable PMO sanitation requirements, is
implementing substantial measures to prevent milk spoilage and
contamination. While these measures are not specifically intended for
oil spill prevention, control and countermeasure purposes, we believe
they may prevent discharges of oil in quantities that are harmful and
seek comment on this. We also seek comment on an exemption for milk
product containers and their associated piping and appurtenances from
the SPCC rule provided they are also constructed in accordance with the
current applicable 3-A Sanitary Standards, and are subject to the
current applicable PMO sanitation requirements or a State dairy
regulatory equivalent to current applicable PMO. EPA is also requesting
comment on how to address milk storage containers (including totes)
that may not be constructed to 3-A Sanitary Standards under the SPCC
rule and whether they should also be exempted from the SPCC
requirements, provided they are subject to the current applicable PMO
or a State dairy regulatory requirement equivalent to the current
applicable PMO. Those commenters who support expanding the proposal to
include those containers that are not constructed to 3-A Sanitary
Standards should provide supporting data and information in order for
the Agency to consider such an approach.
EPA requests comment on any other alternative approaches to address
milk, and milk product containers and associated piping and
appurtenances under the SPCC rule. The Agency requests comments on
whether any action to address milk, and milk product containers, and
associated piping and appurtenances under the SPCC requirements is
warranted. Any alternative approaches offered, including no action,
must include an appropriate rationale and supporting data in order for
the Agency to be able to consider them for final action.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because it is likely to have an annual effect on
the economy of $100 million or more. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866, and any changes made in response to OMB recommendations have
been documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
``Regulatory Impact Analysis'' for the Proposed Amendment to the Oil
Pollution Prevention Regulations to Exempt Certain Milk Containers and
Associated Piping and Appurtenances (40 CFR PART 112)''. A copy of the
analysis is available in the docket for this action, and the analysis
is briefly summarized in section C.
B. Paperwork Reduction Act
This proposed action does not impose any new information collection
burden. The proposed rule amendment would exempt certain milk
containers and associated piping and appurtenances
[[Page 2464]]
from the rule. However, the Office of Management and Budget (OMB) has
previously approved the information collection requirements contained
in the existing regulations, 40 CFR part 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.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act 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 proposed rule on
small entities, a small entity is defined as: (1) A small business as
defined in the U.S. Small Business Administration (SBA)'s regulations
at 13 CFR 121.201--SBA defines small businesses by category of business
using North American Industry Classification System (NAICS) codes, and
in the case of farms and oil production facilities, which constitute a
large percentage of the facilities affected by this proposed rule,
generally defines small businesses as having less than $0.5 million to
$27.5 million per year in sales receipts, depending on the industry, or
500 or fewer 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 that is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed rule on
small entities, the Agency certifies that this action would 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 analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities'' (5 U.S.C. 603
and 604). Thus, an agency may certify that a rule would 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.
Under this proposal, EPA would exempt milk storage containers and
associated piping and appurtenances that are constructed according to
3-A Sanitary Standards and are subject to the current applicable Grade
``A'' Pasteurized Milk Ordinance (PMO), or an equivalent state dairy
requirement to the current applicable PMO from SPCC rule requirements.
Overall, EPA estimates that this proposed action would reduce annual
compliance costs by approximately $155 million for owners and operators
of affected facilities. Total costs were annualized over a 10-year
period using a 7-percent discount rate. To derive this savings
estimate, EPA first estimated the number of dairy farms and milk
processing facilities that would be affected each year (2010-2019) by
the proposed rule. EPA next analyzed the expected milk and fuel oil
storage capacity of dairy farms with varying numbers of cattle based on
daily production rate per cow, storage requirements for milk, and
conversations with industry representatives. EPA also estimated the
milk and fuel oil storage capacity of milk processing facilities, and
estimated the cost savings associated with the exemption for milk
storage containers at both dairy farms and milk processing facilities.
These savings include secondary containment costs, cost savings from
preparing and maintaining an SPCC Plan for a smaller facility, and, for
Qualified Facilities, preparing only a Plan Template and saving PE
certification costs. A certain number of dairy farms are expected to
become exempt as a result of the amendments.
EPA has therefore concluded that this proposed rule would relieve
regulatory burden for small entities and therefore, certify that this
proposed action will not have a significant economic impact on a
substantial number of small entities. EPA continues to be interested in
the potential impacts of the proposed rule on small entities and
welcomes comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
This proposed 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 proposed 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 proposed 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 proposed amendments impose no enforceable duty on any
small government.
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 proposed rule does not have federalism implications. It would
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 the Clean Water Act (CWA)
section 311(o), States may impose additional requirements, including
more stringent requirements, relating to the prevention of oil
discharges to navigable waters and adjoining shorelines. EPA recognizes
that some States have more stringent requirements (56 FR 54612, October
22, 1991). This proposed rule would not preempt State law or
regulations. Thus, Executive Order 13132 does not apply to this
proposed 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). This proposed
rule would not significantly or uniquely affect communities of Indian
tribal governments. Thus, Executive Order 13175 does not apply to this
proposed rule. EPA specifically solicits additional comment on this
proposed action from tribal officials.
[[Page 2465]]
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
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 proposed rule is not
subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 18355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. The overall effect of the proposed rule
is to decrease the regulatory burden on facility owners or operators
subject to its provisions.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113 (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 proposed rulemaking involves technical standards. EPA proposes
to use the 3-A Sanitary Standards, ``Storage Tanks for Milk and Milk
Products'', 3A 01-08, November 2001, developed by 3-A Sanitary
Standards, Inc. A copy of these standards may be obtained from the 3-A
Sanitary Standards online store at https://www.techstreet.com/
3Agate.html; by contacting the organization at 6888 Elm Street, Suite
2D, McLean, Virginia 22101; by phone at (703) 790-0295; or by facsimile
at (703) 761-6284. EPA is proposing an exemption to the SPCC rule based
on the 3-A Sanitary Standards, because an owner and operator of a
facility that is subject to SPCC, that has milk storage containers and
associated piping and appurtenances constructed in accordance with 3-A
Sanitary Standards, and that is effectively implementing PMO sanitation
requirements, may already be providing measures to prevent, control and
provide countermeasures for discharges of oil in quantities that are
harmful.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 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 this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The overall effect of the action is to decrease the
regulatory burden on facility owners or operators subject to its
provisions.
List of Subjects in 40 CFR Part 112
Environmental protection, Animal fats and vegetable oils, Farms,
Milk, Oil pollution, Tanks, Water pollution control, Water resources.
Dated: January 9, 2009.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble, the Environmental
Protection Agency proposes to amend 40 CFR part 112 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; and E.O.
12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351.
Subpart A--[Amended]
2. Amend Sec. 112.1 by adding paragraphs (d)(2)(ii)(G) and (d)(13)
to read as follows:
Sec. 112.1 General applicability.
* * * * *
(d) * * *
(2) * * *
(ii) * * *
(G) The capacity of any milk container and associated piping and
appurtenances that are constructed according to current applicable 3-A
Sanitary Standards, and that are subject to current applicable Grade
``A'' Pasteurized Milk Ordinance or a State dairy regulatory
requirement equivalent to the current applicable Grade ``A''
Pasteurized Milk Ordinance.
* * * * *
(13) Any milk container and associated piping and appurtenances
that are constructed according to current applicable 3-A Sanitary
Standards, and that are subject to current applicable Grade ``A''
Pasteurized Milk Ordinance or a State dairy regulatory requirement
equivalent to the current applicable Grade ``A'' Pasteurized Milk
Ordinance.
* * * * *
[FR Doc. E9-830 Filed 1-14-09; 8:45 am]
BILLING CODE 6560-50-P