Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure (SPCC) Rule-Amendments for Milk and Milk Product Containers, 21652-21660 [2011-9288]
Download as PDF
<![CDATA[
erowe on DSK5CLS3C1PROD with RULES
21652
Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations
203 of UMRA because it contains no
regulatory requirements that might
significantly or uniquely affect small
governments.
Since this action imposes
requirements only on the State of Utah,
it also does not have Tribal
implications. It will not have a
substantial direct effect on one or more
Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes,
as specified by Executive Order 13175
(65 FR 67249, November 9, 2000).
This action also does not have
Federalism implications because it will
not have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999), because it will simply
maintain the relationship and the
distribution of power and
responsibilities between EPA and the
States as established by the CAA. This
SIP call is required by the CAA because
EPA has found the current SIP is
substantially inadequate to attain or
maintain the NAAQS or comply with
other CAA requirements. Utah’s direct
compliance costs will not be substantial
because the SIP call requires Utah to
submit only those revisions necessary to
address the SIP deficiencies and
applicable CAA requirements.
EPA interprets Executive Order 13045
‘‘Protection of Children from
Environmental Health Risks and Safety
Risks’’ (62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the EO has the
potential to influence the regulation.
This action is not subject to EO 13045
because it does not establish an
environmental standard, but instead
requires Utah to revise a State rule to
address requirements of the CAA.
Section 12 of the National Technology
Transfer and Advancement Act of 1995
requires Federal agencies to evaluate
existing technical standards when
developing a new regulation. To comply
with the National Technology Transfer
and Advancement Act, EPA must
consider and use ‘‘voluntary consensus
standards’’ (VCS) if available and
applicable when developing programs
and policies unless doing so would be
inconsistent with applicable law or
otherwise impractical. In making a
finding of a SIP deficiency, EPA’s role
is to review existing information against
VerDate Mar<15>2010
15:17 Apr 15, 2011
Jkt 223001
previously established standards. In this
context, there is no opportunity to use
VCS. Thus, 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.
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.),
since it only requires the State of Utah
to revise Utah rule R307–107 to address
requirements of the CAA.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by June 17, 2011.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 31, 2011.
James B. Martin,
Regional Administrator, Region 8.
[FR Doc. 2011–9215 Filed 4–15–11; 8:45 am]
BILLING CODE 6560–50–P
PO 00000
Frm 00040
Fmt 4700
Sfmt 4700
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[EPA–HQ–OPA–2008–0821; FRL–9297–3]
RIN 2050–AG50
Oil Pollution Prevention; Spill
Prevention, Control, and
Countermeasure (SPCC) Rule—
Amendments for Milk and Milk Product
Containers
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
The U.S. Environmental
Protection Agency (EPA or the Agency)
is amending the Spill Prevention,
Control, and Countermeasure (SPCC)
rule to exempt all milk and milk
product containers and associated
piping and appurtenances from the
SPCC requirements. The Agency is also
removing the compliance date
requirements for the exempted
containers.
SUMMARY:
This final rule is effective on
June 17, 2011.
ADDRESSES: The public docket for this
rulemaking, Docket ID No. EPA–HQ–
OPA–2008–0821, contains the
information related to this rulemaking,
including the response to comments
document. All documents in the docket
are listed in the 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.
DATES:
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
FOR FURTHER INFORMATION CONTACT:
E:\FR\FM\18APR1.SGM
18APR1
Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations
Information Center at 703–412–9810 or
TDD 703–412–3323. For more detailed
information on specific aspects of this
final rule, contact either Gregory Wilson
at 202–564–7989
(wilson.gregory@epa.gov) or, Vanessa E.
Principe at 202–564–7913
(principe.vanessa@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 Final
Rule
III. Statutory Authority and Delegation of
Authority
IV. Background
V. This Action
A. Finalize Modified Amendments
1. Industry Sanitary Standards and
Construction Requirements
2. Summary of Comments
3. Response to Comments
4. Universe Affected by This Action
B. Removal of Compliance Date for
Exempted Containers, Associated Piping
and Appurtenances
VI. Statutory and Executive Order Reviews
A. Executive Orders 12866 and 13563:
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
K. Congressional Review Act
I. General Information
On January 15, 2009, EPA proposed to
amend the Spill Prevention, Control,
and Countermeasure (SPCC) rule to
tailor and streamline the requirements
for the dairy industry. Specifically, EPA
proposed to exempt milk containers and
associated piping and appurtenances
from the SPCC requirements provided
21653
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. The Agency is
modifying the proposed exemption to
exempt all milk containers, and
associated piping and appurtenances
and is further extending the exemption
to also include all milk product
containers, and associated piping and
appurtenances. Finally, the Agency is
removing the compliance date
requirements for the exempted
containers.
EPA estimates that dairy farms will
incur an average annualized savings of
$133 million and milk product
manufacturing plants an average
annualized savings of $13 million
(estimates based on 2009$ and a 7%
discount rate). In aggregate, the total
annualized savings is estimated at $146
million. The Regulatory Impact analysis,
which can be found in the docket,
provides more detail of the cost savings
and methodology.
COST AND BENEFITS OF THE FINAL RULE
Annualized cost savings
Discounted at 3%
Costs ........................................................................................................................................................
Benefits (Cost Savings) ...........................................................................................................................
Net Benefits (Benefits—Costs) ................................................................................................................
II. Entities Potentially Affected by This
Final Rule
Industry sector
Farms ........................................
Food Manufacturing ..................
NAICS code
111, 112
311
erowe on DSK5CLS3C1PROD with RULES
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 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
VerDate Mar<15>2010
15:17 Apr 15, 2011
Jkt 223001
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.
In 1995, Congress enacted the Edible
Oil Regulatory Reform Act (EORRA),
33 U.S.C. 2720, which mandates that
PO 00000
Frm 00041
Fmt 4700
Sfmt 4700
Discounted at 7%
$0
143
143
$0
146
146
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 the various types of
oils, specifically: Animal fats and oils
and greases, and fish and marine
mammal oils; oils of vegetable origin;
other non-petroleum oils and greases;
and petroleum oils. 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.
IV. Background
EPA promulgated a series of
amendments to the SPCC rule in
December 2006, December 2008 and
November 2009 that provided the
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.
E:\FR\FM\18APR1.SGM
18APR1
erowe on DSK5CLS3C1PROD with RULES
21654
Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations
facility owner or operator with
significant flexibility to comply with the
SPCC regulatory requirements. Facilities
handling animal fats and vegetable oils
(AFVOs), subject to the SPCC rule
because of their oil storage capacity,
may benefit from a number of these
amendments, which tailored prevention
and control measures to the facility type
and oils being stored. The provisions
included streamlined requirements for
qualified facilities and reduced
requirements for a subset of those
qualified facilities. The rule also
amended the security, integrity testing,
and facility diagram requirements,
while exemptions were provided for
pesticide application equipment and
related mix containers, and for singlefamily residential heating oil containers.
Finally, the amendments offered
clarifications for fuel nurse tanks, wind
farms and for the definition of ‘‘facility.’’
Milk typically contains a percentage
of animal fat, a non-petroleum oil. Thus,
containers storing milk and milk
products are currently 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
currently subject to the applicable
provisions under § 112.12. Additionally,
milk is processed in containers during
the pasteurization process. These
continuous pasteurizers, while not bulk
storage containers, are considered oil
filled-manufacturing equipment and are
currently subject to the general
provisions of the SPCC rule under
§ 112.7. Finally, milk is also handled
and transferred through piping and
appurtenances associated with
containers which are currently subject
to certain provisions of the SPCC rule.
In response to EPA’s October 2007
proposal for amendments to the SPCC
rule (72 FR 58378, October 15, 2007),
several comments requested that EPA
exempt containers used to store milk
from the SPCC requirements.
Specifically, these comments suggested
that milk storage containers be
exempted from the SPCC requirements
because the Grade ‘‘A’’ PMO addresses
milk storage and tank integrity. The
comments identified the PMO, which
specifically addresses milk intended for
human consumption, as a model
ordinance maintained through a
cooperative agreement between the
States, the Food and Drug
Administration (FDA), and the regulated
community. States typically adopt the
PMO either by reference, or by directly
incorporating similar requirements into
their statutes or regulations.
VerDate Mar<15>2010
15:17 Apr 15, 2011
Jkt 223001
Thus, on January 15, 2009, the
Agency published a proposal to exempt
from SPCC requirements milk
containers and associated piping and
appurtenances 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 [74 FR 2463].
The Agency also requested comment
on an exemption for milk product
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 Grade ‘‘A’’
PMO sanitation requirements or a State
dairy regulatory equivalent to the
current applicable PMO. In addition, the
Agency requested 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 Grade ‘‘A’’
PMO or a State dairy regulatory
requirement equivalent to the current
applicable PMO. Finally, the Agency
requested comment on alternative
approaches to address milk and milk
product containers, associated piping
and appurtenances under the SPCC rule.
After the Agency’s review of
comments and consideration of all
relevant facts, today’s rule modifies the
proposed exemption to exempt all milk
containers, and associated piping and
appurtenances and further extends the
exemption to include all milk product
containers, and associated piping and
appurtenances. The Agency is also
removing the compliance date
requirements for the exempt containers.
V. This Action
A. Finalize Modified Amendments
The Agency is exempting from the
SPCC requirements milk and milk
product containers, and associated
piping and appurtenances.
Additionally, the capacity of these
exempted containers, and associated
piping and appurtenances is not to be
included in a facility’s total oil storage
capacity calculation (see
§ 112.1(d)(2)(ii)). The Agency is also
removing the compliance date
requirements for the exempted
containers.
This preamble discusses these
provisions, and any related comment
received during the 2009 comment
period, that raised substantive policy
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
issues. For a complete discussion of the
comments received in 2009, see
Comment and Response Document Oil
Pollution Prevention; SPCC Plan
Requirements—Amendments, a copy of
which is available in the docket for this
rulemaking.
1. Industry Sanitary Standards and
Construction Requirements
Milk and milk product containers and
their associated piping and
appurtenances are generally constructed
according to an industry standard
established by the 3–A Sanitary
Standards organization (3–A Sanitary
Standards, Inc., McLean, VA, https://
www.3-a.org) which satisfy the PMO
model code construction requirements
for milk and milk product containers
and associated piping and
appurtenances. These containers,
associated piping and appurtenances
may also be subject to the U.S.
Department of Agriculture (USDA)
Recommended Requirements for Milk
for Manufacturing Purposes and its
Production and Processing (Milk for
Manufacturing Purposes and Its
Production and Processing;
Requirements Recommended for
Adoption by State Regulatory Agencies;
see https://www.ams.usda.gov/AMSv1.0/
getfile?dDocName=STELDEV3004791).
All milk handling operations subject to
the PMO are required to have an
operating permit, and are subject to
inspection by State dairy regulatory
agencies. The PMO model code
establishes criteria for the permitting,
inspection and enforcement of milk
handling equipment and operations that
govern all processes for milk intended
for human consumption.
Likewise, USDA has developed and
maintains a set of model regulations
relating to quality and sanitation
requirements for the production and
processing of manufacturing grade milk,
which are recommended for adoption
and enforcement by the various States
that regulate manufacturing grade milk.
The purpose of the model requirements
is to promote uniformity in State dairy
laws and regulations relating to
manufacturing grade milk. These
recommended requirements contain
criteria similar to those of the PMO for
milk for manufacturing purposes,
including its processing, use, labeling
and storage. Furthermore, these
requirements include provisions for
inspections, certification and licensing
of facilities that handle and process
milk for manufacturing purposes and its
products. These requirements serve as
the basis for the exemption of milk and
milk product containers, and their
associated piping and appurtenances
E:\FR\FM\18APR1.SGM
18APR1
Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES
from the SPCC rule. Milk and milk
product containers, associated piping
and appurtenances are generally
constructed in accordance with
standards like the current applicable
3–A Sanitary Standards, and are subject
to standards like the current applicable
PMO sanitation requirements, USDA
Recommended Requirements for Milk
for Manufacturing Purposes and its
Production and Processing, or
equivalent State dairy regulations. The
3–A Sanitary Standards for equipment
construction require the use of durable
materials and sanitary construction
criteria that can be easily maintained
and kept clean and free of defects when
appropriate cleaning procedures and
chemicals are used. Both the PMO
sanitation requirements and the USDA
Recommended Requirements include
construction and sanitation standards
and frequent State and/or Federal
inspections for these containers, piping
and appurtenances, and provide
definitions and/or list those milk and
milk products to which they apply.
State dairy requirements for permits/
licenses, operations and inspections are
generally structured to be equivalent to
the current applicable PMO
requirements and/or USDA
Recommended Requirements. The
Agency believes the combination of
these specific standards and
requirements address the prevention of
oil discharges.
2. Summary of Comments
Support for an Expanded Exemption.
There was only one comment to the
2009 proposal, and it expressed general
support for the exemption. The
comment requested that EPA consider
exempting all milk and milk products,
including cheese, cream, yogurt and ice
cream mix. The comment stated these
products and their containers do not
present a potential for spills into
navigable waters of the United States
because the equipment must be
constructed to preclude deterioration
and must be maintained to keep it clean
and free of defects. The comment states
that all dairy processing equipment,
storage containers, piping and
appurtenances are made of high grade
stainless steel (with the exception of
some cheese storage containers) and are
designed and constructed in accordance
with 3–A and/or FDA’s Current Good
Manufacturing Practices (CGMP) or
equivalents. The comment also states
that other requirements mandate
frequent inspection of dairy operations
for defects in equipment thereby making
spillage and leakage highly improbable.
Exemption of Solid Mixtures. The
comment also requested that EPA
VerDate Mar<15>2010
15:17 Apr 15, 2011
Jkt 223001
exempt cheese and other mixtures that
are solid at room temperature from the
SPCC requirements. The comment
included as an appendix a letter
commenting on an earlier Agency action
and requested an exemption of
substances that are solid at ambient
temperatures (including animal fats).
The comment also stated that should a
cheese production or storage facility
catch fire, ‘‘under no circumstances
would cheese liquefy and flow’’ out of
the facility to potentially pollute or
endanger navigable waters of the United
States.
Expand the Scope of Regulations and
Standards To Qualify the Exemption.
The comment requested that EPA
broaden the scope of regulatory
requirements and construction
standards to exempt additional
containers from the SPCC rule,
specifically those that are subject to the
Food and Drug Administration (FDA)
requirements under 21 CFR Part 110.
The comment suggested the exemption
state: ‘‘The SPCC rule does not apply to
storage containers and associated piping
and appurtenances that contain milk or
milk products that are: A) subject to the
construction requirements of 3–A
Sanitary Standards or the equivalent
standards approved by a federal, state or
local regulatory authority, and b) are
subject to 21 CFR Part 110, the PMO, or
a state or local equivalent.’’
Additionally, the comment argued that,
along with high sanitation standards for
edible fats and oils, regulations issued
by the Occupational Safety and Health
Administration (OSHA) for worker
safety address storage and use of oils at
food facilities, thereby reducing the
likelihood, rate and magnitude of a spill
should an accident occur.
Definition of Oil and Oil Mixtures.
The comment also argued milk and milk
products should not be defined as oil.
The comment incorporates by reference
statements that milk and other dairy
products do not seem to meet the
definition of ‘‘oil’’ because milk, ice
cream mix, yogurt, cream, cheese and
other dairy products are not (1) fat, oil
or grease or (2) fat, oil or grease mixed
with waste. The comment included as
an appendix a letter to the Agency
commenting on a separate action,
stating there are minimal environmental
risks resulting from edible fats and oils
spills and EPA should exempt
substances not listed on the U.S. Coast
Guard list of petroleum and nonpetroleum oils (e.g., milk or milk
products). The comment requests EPA
clarify the definition of oil and oil
mixtures so that lower fat mixtures, e.g.,
those below 50 percent fat, or those that
are solid at room temperature might not
PO 00000
Frm 00043
Fmt 4700
Sfmt 4700
21655
be considered oil, thereby exempting
most milk and milk products from the
SPCC requirements. The commenter
further requested EPA not initiate any
enforcement actions against operations
where there is substantial doubt
regarding whether substances at those
facilities are within the scope of the
SPCC rule until EPA has clarified oil
mixtures.
3. Response to Comments
Support for an Expanded Exemption.
EPA recognizes the merits to arguments
supporting an exemption for milk
product containers. Thus, EPA is
amending the proposed exemption by
exempting all milk containers, and
associated piping and appurtenances
and by further extending the exemption
to include all milk product containers,
and associated piping and
appurtenances. The exempted
containers include all milk and milk
product containers as defined in the
PMO model code, but also all milk and
milk product containers subject to the
USDA Recommended Requirements for
Milk for Manufacturing Purposes and its
Production and Processing. EPA also
acknowledges that some milk and milk
product handling operations are subject
to 21 CFR 110. However, EPA believes
that the dairy specific standards above
apply to the vast majority of milk and
milk product containers. The Agency
could not identify any milk or milk
product containers that are not subject
to PMO, USDA Recommended
Requirements for Milk for
Manufacturing Purposes and its
Production and Processing, or
equivalent State dairy regulatory
requirements and thus the final rule
exempts all milk and milk product
containers from the SPCC requirements.
In this final rule, EPA is amending the
scope of the exemption by exempting all
milk containers, and associated piping
and appurtenances and by further
expanding the exemption to include all
milk product containers, and associated
piping and appurtenances. These
exempted milk and milk product
containers, and associated piping and
appurtenances are constructed
according to standards like the current
applicable 3–A Sanitary Standards, and
are subject to standards like the current
applicable Grade ‘‘A’’ (PMO), USDA
Recommended Requirements for Milk
for Manufacturing Purposes and its
Production and Processing, or
equivalent State dairy regulatory
requirements. Because of their
operational requirements, particularly
for permits/licenses and frequent
inspections, the Agency expects the
owner or operator of a facility with milk
E:\FR\FM\18APR1.SGM
18APR1
erowe on DSK5CLS3C1PROD with RULES
21656
Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations
and milk product containers subject to
the 3–A Sanitary Standards, and PMO
requirements, USDA Recommended
Requirements for Milk for
Manufacturing Purposes and its
Production and Processing, or
equivalent State dairy regulatory
requirements, to be in compliance with
those provisions in order to maintain
their operations. For the purposes of
this provision, ‘‘equivalent’’ means a
State dairy regulation that includes all
the components of the PMO model code
and/or the USDA Recommended
Requirements. All milk and/or milk
product transfer and processing
activities are included in the scope of
this exemption from the SPCC rule.
Exemption of Solid Mixtures. EPA
disagrees that all oils or oil mixtures
that are solid at room temperature
should, as a general matter, be exempted
from the SPCC rule. Vegetable oils and
animal fats that are solid at room
temperature serve as potent physical
contaminants and are more difficult to
remove from affected animals than
petroleum oil (see 62 FR 54511, October
20, 1997).
The Agency believes that spill
prevention for milk and milk products
produced for processing and
manufacturing (e.g., butter, cheese, dry
milk) are appropriately addressed
through standards like the PMO model
code, the USDA Recommended
Requirements for Milk for
Manufacturing Purposes and its
Production and Processing, or
equivalent State dairy regulatory
requirements, and thus is extending the
exemption to include all milk and milk
product containers, associated piping
and appurtenances.
To decide whether a facility is subject
to the SPCC rule, the owner or operator
must first identify whether there is a
reasonable expectation of an oil
discharge to navigable waters or
adjoining shorelines from the facility.
The owner or operator of a facility may
consider the nature and flow properties
of the oils handled at the facility to
make this determination (for more
information, see Chapter 2 of the SPCC
Guidance for Regional Inspectors). If
there is a reasonable expectation that
any oil (in any container) at the facility
may impact waters if discharged, then
the next step is to determine the
aboveground and completely buried
storage capacity of all oil located at the
facility (except for exempt containers). If
the aboveground storage capacity is
greater than 1,320 U.S. gallons or the
completely buried capacity is greater
than 42,000 U.S. gallons, then the
facility is subject to the SPCC rule and
the owner or operator must develop an
VerDate Mar<15>2010
15:17 Apr 15, 2011
Jkt 223001
SPCC Plan that describes oil handling
operations, spill prevention practices,
discharge or drainage controls, and the
personnel, equipment and resources at
the facility that are used to prevent oil
spills from reaching navigable waters or
adjoining shorelines. However, if the
owner or operator of the facility
determines there is not a reasonable
expectation of discharge of oil to
navigable waters or adjoining shorelines
from all oils stored at the facility then
the facility is not subject to the SPCC
requirements. We recommend that the
owner or operator document and date
these determinations in the event that
EPA challenges the determination
following an inspection.
The SPCC rule is primarily a
performance-based rule, therefore, the
owner or operator may consider the
properties of each oil located at the
facility to identify measures and
procedures to prevent spills from the
facility. For example, storage of an oil in
solid form inside a building may
provide adequate secondary
containment. Additionally, many SPCC
rule provisions allow for
environmentally equivalent alternatives
to be used (except for secondary
containment) provided they are
documented in the Plan and certified by
a Professional Engineer (see Chapter 3 of
the SPCC Guidance for Regional
Inspectors for more information).
Expand the Scope of Regulations and
Standards To Qualify the Exemption.
EPA agrees that the scope of the
exemption should apply to all milk and
milk product containers because they
are subject to a combination of
standards like the 3-A Sanitary
Standards with either PMO or the USDA
requirements or State equivalent dairy
regulations. EPA is expanding the
exemption because non-PMO milk and
milk product containers are subject to
standards like the USDA Recommended
Requirements for Milk for
Manufacturing Purposes and its
Production and Processing, or
equivalent State dairy regulations. The
Agency believes the components of
these requirements are comparable to
the PMO requirements. Specifically,
both PMO and USDA Recommended
Requirements have provisions that
include permitting/licensing,
inspections, construction standards,
operations, maintenance, enforcement
and other sanitation requirements.
All milk and milk product handling
operations subject to the PMO and
USDA Recommended Requirements
must have an operating permit or
license, and are subject to inspection by
State dairy regulatory agencies. Both the
PMO and the USDA Recommended
PO 00000
Frm 00044
Fmt 4700
Sfmt 4700
Requirements establish criteria for the
permitting/licensing, inspection and
enforcement of handling equipment and
operations that typically govern
processes for milk and milk products
intended for human consumption and
for milk produced for processing and
manufacturing products for human
consumption. These include, but are not
limited to, specifications for the design
and construction of milk and milk
product 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 milk
products, and thus, to ensure a proper
sanitary environment, standards like
both the PMO and the USDA
Recommended Requirements require
that milk and milk product containers
be frequently emptied, cleaned,
inspected and sanitized and that records
of such events be maintained. Such
frequent cleaning and inspection of the
containers suggests that any leaks or
deterioration of container integrity
would be quickly identified. PMO and
USDA Recommended Requirements
also require inspections of facilities
with such milk and milk products
handling operations by the Statedesignated regulatory agency prior to
issuing a permit or license, and routine
inspections thereafter (for example, at
dairy farms covered by PMO at least
once every six months) by a State
designated regulatory agency.
Inspections at these facilities encompass
those elements associated with the milk
and milk products operation, including
the containers, and associated piping
and appurtenances. Violations of the
permitting or licensing requirements
may result in the suspension or
revocation of the facility’s operating
license or permit.
USDA regulations, guidelines and
recommended requirements all
recognize the unique nature in which
milk and milk products are handled and
stored in contrast to other oils intended
for human consumption. Subpart D—
Farm Requirements for Milk for
Manufacturing of the USDA
Recommended Requirements for Milk
for Manufacturing Purposes and its
Production and Processing requires that
farm bulk tanks meet 3-A Sanitary
Standards for construction at the time of
installation, that they be installed in
accordance with USDA regulations, and
that all new utensils and equipment be
in compliance with applicable 3-A
Sanitary Standards. Furthermore USDA
regulation under 7 CFR 58.128(d)
requires new or replacement storage
E:\FR\FM\18APR1.SGM
18APR1
erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations
tanks or vats to comply with the
appropriate 3-A Sanitary Standards (i.e.,
Storage Tanks for Milk and Milk
Products or Sanitary Standards for SiloType Storage Tanks for Milk and Milk
Products). According to USDA
Guidelines for the Sanitary Design and
Fabrication of Dairy Processing
Equipment, ‘‘Dairy Grading Branch
policy fully supports and utilizes
established 3-A Sanitary Standards and
Accepted Practices.’’ Furthermore the
document says ‘‘When a USDA-Dairy
Grading Branch review is requested of
equipment for which there are no 3-A
Sanitary Standards or Accepted
Practices, USDA will use the general
criteria, guidelines, and principles
outlined in this document. These
criteria, guidelines, and principles are
consistent with those utilized by the
3-A Sanitary Standards Committees
during the development of standards
and accepted practices.’’
Although OSHA worker safety
regulations may apply to facilities with
milk or milk product containers, their
requirements specifically focus on
worker safety and do not address
container design or container inspection
practices as in the case of the PMO or
USDA requirements and the 3-A
Sanitary Standards. The FDA
requirements under 21 CFR Part 110, are
current good manufacturing practices in
manufacturing, packing, or holding
human food and apply to all foods
under FDA jurisdiction; whereas PMO
and USDA requirements are specific to
milk and milk products. The PMO
model code and the USDA
Recommended Requirements are
specific to milk and milk products and
serve to minimize their potential for
discharge because they include
permitting or licensing of facilities,
strict inspection frequencies and
enforcement procedures, among others.
The monitoring and sanitation
standards under PMO and USDA serve
in part as spill prevention measures
because the frequent cleaning and
inspections of the milk and milk
product containers, associated piping
and appurtenances leads to early
identification of equipment failure, and
spill detection. Failure to comply with
these provisions may lead to a
suspension of licenses or permits issued
under PMO or USDA.
Definition of Oil and Oil Mixtures.
EPA does not agree with the comment
that milk is not an oil. Milk and other
milk products comprised of animal fats
meet both the definition of oil and of
non-petroleum oil included in § 112.2 of
the rule. EPA has an established record
of including animal fats and vegetable
oils in planning and spill prevention
VerDate Mar<15>2010
15:17 Apr 15, 2011
Jkt 223001
requirements (see 40 FR 28849, July 9,
1975; and 62 FR 54509, October 20,
1997). The SPCC rule defines oil as ‘‘oil
of any kind or in any form, including,
but not limited to: Fats, oils, or greases
of animal, fish, or marine mammal
origin; vegetable oils, including oils
from seeds, nuts, fruits, or kernels; and,
other oils and greases, including
petroleum, fuel oil, sludge, synthetic
oils, mineral oils, oil refuse, or oil
mixed with wastes other than dredged
spoil.’’ (40 CFR 112.2) The rule further
defines non-petroleum oil as ‘‘oil of any
kind that is not petroleum-based,
including, but not limited to: Fats, oils,
and greases of animal, fish, or marine
mammal origin; and vegetable oils,
including oils from seeds, nuts, fruits,
and kernels.’’ Both definitions qualify
the listed examples with the statement
‘‘including but not limited to’’ which
indicates that these definitions are not
limited by the examples provided.
EPA disagrees with the comment that
edible fats and oils pose minimal
environmental risks. In a notice
published on October 20, 1997 (62 FR
54508), EPA denied a request submitted
by various trade associations to treat
facilities that handle, store, or transport
animal fats and vegetable oils in a
manner differently from those facilities
that store petroleum-based oils. The
petitioners claimed that unlike most if
not all other oils, animal fats and
vegetable oils are non-toxic, readily
biodegradable, not persistent in the
environment, and in fact are essential
components of human and wildlife
diets. EPA agrees with the comment that
animal fats and vegetable oils, which are
consumed in small amounts, are an
essential component of human and
wildlife diets. However, large amounts
of such oils, when discharged into
navigable waters or adjoining
shorelines, present significant risks to
the environment, including wildlife. In
fact, the environmental effects of
petroleum and non-petroleum oils,
including vegetable oils and animal fats,
are similar because of the physical and
chemical properties common to both.
(See Federal Register notice at 62 FR
54508; October 20, 1997 for more
information on the environmental
effects of oil spills of edible fats and
oils.)
EPA acknowledges that the U.S. Coast
Guard list of petroleum and nonpetroleum oils 2 does not specifically
2 The U.S. Coast Guard List Of Petroleum and
Non-petroleum Oils can be found at: https://
homeport.uscg.mil/mycg/portal/ep/
contentView.do?contentTypeId=2&channelId=30565&contentId=120944&programId=117833
&programPage=%2Fep%2Fprogram%2Feditorial.
jsp&pageTypeId=13489.
PO 00000
Frm 00045
Fmt 4700
Sfmt 4700
21657
list milk or milk products; however, this
does not provide an adequate basis to
exempt milk or milk products from the
SPCC rule, especially since they meet
the definition of oil under the SPCC
rule. Moreover, the U.S. Coast Guard list
only includes examples of oils and is
not meant to be all-inclusive. The
examples are organized alphabetically
into several subgroups, including a
group for edible animal and vegetable
oils and other oils of animal or vegetable
origin (which have historically been
considered Clean Water Act (CWA)
oils). While milk and milk products are
not specifically included on the Coast
Guard list, for purposes of SPCC, they
fall under the category of edible animal
and vegetable oils.
Finally, the Agency did not propose
changes to the definitions of oil or oil
mixture and therefore defining oil and/
or oil mixtures are issues outside the
scope of this action. Furthermore, EPA
will continue to enforce the Oil
Pollution Prevention regulations for oil
mixtures. The owner or operator of a
SPCC-subject facility should consider
the definition of oil included in § 112.2
of the rule and the CWA definition of oil
when making determinations on how to
address the SPCC requirements.
4. Universe Affected by This Action
The approach in this action addresses
the concerns raised by the dairy
industry for milk producers (dairies)
and milk product facilities subject to the
SPCC requirements. In 2009, the
National Agricultural Statistics Service
(NASS), an agency within the USDA,
estimated there were 65,000 operations
with one or more milk cows and 1,178
facilities manufacturing one or more
dairy products (excluding fluid milk
products) in the United States. Most of
the 65,000 operations with milk cows
produce only fluid milk (subject to the
PMO or the USDA Recommended
Requirements) and their milk storage
containers would be exempted.
Manufactured dairy facilities handle
milk and milk products subject to
standards such as either the PMO or the
USDA Recommended Requirements,
and all their milk/milk product storage
containers are also exempt. Milk or milk
product containers not under the PMO
or the USDA Recommended
Requirements are generally covered by
an equivalent State dairy regulation; all
these State regulated milk and milk
product containers are also exempt.
This action exempts the entire universe
of milk and milk product containers,
and associated piping and
appurtenances.
Note that milk and milk product
facilities may handle other oils subject
E:\FR\FM\18APR1.SGM
18APR1
21658
Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES
to the SPCC requirements. These
facilities either have or are developing
SPCC Plans in anticipation of the
compliance date, but will not have to
account for, or address the exempted
containers in their SPCC Plans. Some of
these facilities may now be either
exempt, or eligible as a qualified facility
to self-certify the facility’s SPCC Plan. In
addition, ‘‘micro’’ processor facilities
that process one milk product are
expected to manufacture and/or store
quantities below the SPCC applicability
thresholds for container or aggregate
quantities (e.g., 1,000 pounds of cheese
per month; self-bottling milk for farm
consumption). The container sizes at
these facilities are typically below the
55-gallon de minimis container size of
the SPCC rule and therefore, are
unlikely to be subject to SPCC
requirements (see SPCC Guidance for
Regional Inspectors for more
information).
B. Removal of Compliance Date for
Exempted Containers, Associated
Piping and Appurtenances
On October 14, 2010, the Agency
delayed the compliance date by which
facilities must address milk and milk
product containers, associated piping
and appurtenances that are constructed
according to the current applicable 3–A
Sanitary Standards, and subject to the
current applicable Grade ‘‘A’’ PMO or a
State dairy regulatory requirement
equivalent to the current applicable
PMO (see 75 FR 63093). The date by
which the owner or operator of a facility
must comply with the SPCC
requirements for these milk and milk
product containers was delayed one
year from the effective date of a final
rule specifically addressing these milk
and milk product containers, associated
piping and appurtenances, or as
specified by a rule that otherwise
establishes a compliance date for these
facilities. This delay of the compliance
date was to provide time for certain
facilities to undertake the actions
necessary to prepare or amend their
SPCC Plans, as well as implement them.
Today’s action specifically addresses
those milk and milk product containers,
associated piping and appurtenances for
which the delay was established and
does so by exempting them from any
SPCC regulatory requirements. Thus, a
date for the exempted containers to
come into compliance with SPCC
requirements is no longer necessary. As
such, the Agency is removing the
regulatory requirement to comply with
SPCC for these exempt containers by a
date certain. The Agency provided
notice of its intent in the October 14,
2010 final rule. The regulatory text is
VerDate Mar<15>2010
15:17 Apr 15, 2011
Jkt 223001
amended by removing and reserving
112.3(c).
This action does not affect the owner
or operator’s responsibility to prevent
oil discharges, including those of milk
or milk products, into navigable waters
or adjoining shorelines. These
discharges may be subject to other
applicable statutes and regulations,
including but not limited to Section 311
of the Clean Water Act, 33 U.S.C. 1321.
VI. Statutory and Executive Order
Reviews
A. Executive Orders 12866 and 13563:
Regulatory Planning and Review
Under section 3(f)(1) of Executive
Order (EO) 12866 (58 FR 51735, October
4, 1993) and Executive Order 13563 (76
FR 3821, January 18, 2011), 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 EOs 12866 and 13563 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 Final
Amendment to the Oil Pollution
Prevention Regulations to Exempt
Certain Milk and Milk Product
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 VI–C.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. The final
rule amendment exempts from the SPCC
rule milk and milk product containers,
associated piping and appurtenances.
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. Burden is defined at 5 CFR
1320.3(b).
An Agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
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 final 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 dairy farms, which
constitute a large percentage of the
facilities affected by this final rule,
defines small businesses as having less
than $0.75 million per year in sales
receipts; (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 final rule on small
entities, the Agency certifies that this
action will not have a significant
economic impact on a substantial
number of small entities since the rule
relieves regulatory burden, or otherwise
has a positive economic effect on all of
the small entities subject to the rule.
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
* * * rule on small entities’’ (5 U.S.C.
603 and 604).
Under this final rule, EPA is
exempting from SPCC rule requirements
milk and milk product containers,
associated piping and appurtenances
because they are generally designed,
constructed and maintained according
to the standards such as the current
applicable 3–A Sanitary Standards, and
are subject to the standards such as the
current applicable Grade ‘‘A’’ PMO,
USDA Recommended Requirements for
Milk for Manufacturing Purposes and its
Production and Processing, or an
E:\FR\FM\18APR1.SGM
18APR1
Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES
equivalent State dairy regulatory
requirement. Overall, EPA estimates
that this final action will reduce annual
compliance costs by approximately
$146 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 will be affected
each year (2010–2019) by the final 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,
the storage requirements for milk, and
conversations with industry
representatives. EPA also estimated the
milk/milk product and fuel oil storage
capacity of milk processing facilities,
and estimated the cost savings
associated with the exemption for milk/
milk product 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.
While the Agency extended the
exemption to include milk product
containers, piping and appurtenances, it
does not have data on the number of
milk product containers at milk product
manufacturing facilities to determine
the overall cost savings for the
exemption. Therefore, EPA expects that
the total cost savings for the final rule
is underestimated.
EPA, therefore, concludes that this
final rule will relieve regulatory burden
for small entities and certifies that this
action will not have a significant
economic impact on a substantial
number of small entities. EPA requested
comment on potential impacts on small
entities, but received no comments
specific to small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or Tribal
governments or the private sector. The
action imposes no enforceable duty on
any State, local or Tribal governments or
the private sector; therefore, this action
is not subject to the requirements of
sections 202 or 205 of the UMRA. This
action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
VerDate Mar<15>2010
15:17 Apr 15, 2011
Jkt 223001
21659
requirements that might significantly or
uniquely affect small governments; the
amendments impose no enforceable
duty on any small government.
Executive Order 13045 because it does
not establish an environmental standard
intended to mitigate health or safety
risks.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’
This final rule does not have
federalism implications. It will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Under 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 or
adjoining shorelines. EPA recognizes
that some States have more stringent
requirements (56 FR 54612, October 22,
1991). This final rule would not
preempt State law or regulations. Thus,
Executive Order 13132 does not apply
to this final rule.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
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 final rule will not
significantly or uniquely affect
communities of Indian Tribal
governments. Thus, Executive Order
13175 does not apply to this final rule.
EPA specifically solicited additional
comment on this action from Tribal
officials, but none was received.
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 final rule is not subject to
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
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 final rule is to
decrease the regulatory burden on
certain 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.
The owner or operator of a facility
subject to the SPCC rule has the
flexibility to consider applicable
industry standards in the development
of an SPCC Plan, in accordance with
good engineering practice. EPA solicited
comments on this aspect of the
rulemaking and, specifically, invited the
public to identify potentially applicable
voluntary consensus standards and to
explain why such standards should be
used in this regulation. The single
comment submitted agreed with the use
of the 3–A Sanitary Standards and the
PMO model code as a basis for
exempting milk and milk product
containers, associated piping and
appurtenances from the SPCC
requirements. However, this rulemaking
does not involve technical standards, as
it does not set or incorporate by
reference any one specific technical
standard. Therefore, the NTTAA does
not apply.
E:\FR\FM\18APR1.SGM
18APR1
21660
Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
PART 112—OIL POLLUTION
PREVENTION
1. The authority citation for part 112
continues to read as follows:
■
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 final
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.
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.
K. Congressional Review Act
§ 112.3
The Congressional Review Act, 5
U.S.C 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A Major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is a ‘‘major rule’’ as defined
by 5 U.S.C. 904(2). This rule will be
effective June 17, 2011.
erowe on DSK5CLS3C1PROD with RULES
Environmental protection, Animal
fats and vegetable oils, Farms, Milk,
Milk products, Oil pollution, Tanks,
Water pollution control, Water
resources.
Dated: April 12, 2011.
Lisa P. Jackson,
Administrator.
For the reasons stated in the
preamble, the Environmental Protection
Agency amends 40 CFR part 112 as
follows:
15:17 Apr 15, 2011
Jkt 223001
2. Amend § 112.1 by adding
paragraphs (d)(2)(ii)(F) and (d)(12) to
read as follows:
■
§ 112.1
General applicability.
*
*
*
*
*
(d) * * *
(2) * * *
(ii) * * *
(F) The capacity of any milk and milk
product container and associated piping
and appurtenances.
*
*
*
*
*
(12) Any milk and milk product
container and associated piping and
appurtenances.
*
*
*
*
*
[Amended]
3. Amend § 112.3 by removing and
reserving paragraph (c).
■
[FR Doc. 2011–9288 Filed 4–15–11; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 65
[Docket ID FEMA–2011–0002; Internal
Agency Docket No. FEMA–B–1186]
Changes in Flood Elevation
Determinations
Federal Emergency
Management Agency, DHS.
ACTION: Interim rule.
AGENCY:
This interim rule lists
communities where modification of the
Base (1% annual-chance) Flood
Elevations (BFEs) is appropriate because
of new scientific or technical data. New
flood insurance premium rates will be
calculated from the modified BFEs for
new buildings and their contents.
DATES: These modified BFEs are
currently in effect on the dates listed in
the table below and revise the Flood
Insurance Rate Maps (FIRMs) in effect
prior to this determination for the listed
communities.
From the date of the second
publication of these changes in a
SUMMARY:
List of Subjects in 40 CFR Part 112
VerDate Mar<15>2010
Subpart A—[Amended]
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
newspaper of local circulation, any
person has ninety (90) days in which to
request through the community that the
Deputy Federal Insurance and
Mitigation Administrator reconsider the
changes. The modified BFEs may be
changed during the 90-day period.
ADDRESSES: The modified BFEs for each
community are available for inspection
at the office of the Chief Executive
Officer of each community. The
respective addresses are listed in the
table below.
FOR FURTHER INFORMATION CONTACT: Luis
Rodriguez, Chief, Engineering
Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,
(202) 646–4064, or (e-mail)
luis.rodriguez1@dhs.gov.
SUPPLEMENTARY INFORMATION: The
modified BFEs are not listed for each
community in this interim rule.
However, the address of the Chief
Executive Officer of the community
where the modified BFE determinations
are available for inspection is provided.
Any request for reconsideration must
be based on knowledge of changed
conditions or new scientific or technical
data.
The modifications are made pursuant
to section 201 of the Flood Disaster
Protection Act of 1973, 42 U.S.C. 4105,
and are in accordance with the National
Flood Insurance Act of 1968, 42 U.S.C.
4001 et seq., and with 44 CFR part 65.
For rating purposes, the currently
effective community number is shown
and must be used for all new policies
and renewals.
The modified BFEs are the basis for
the floodplain management measures
that the community is required either to
adopt or to show evidence of being
already in effect in order to qualify or
to remain qualified for participation in
the National Flood Insurance Program
(NFIP).
These modified BFEs, together with
the floodplain management criteria
required by 44 CFR 60.3, are the
minimum that are required. They
should not be construed to mean that
the community must change any
existing ordinances that are more
stringent in their floodplain
management requirements. The
community may at any time enact
stricter requirements of its own or
pursuant to policies established by other
Federal, State, or regional entities. The
changes in BFEs are in accordance with
44 CFR 65.4.
National Environmental Policy Act.
This interim rule is categorically
excluded from the requirements of 44
E:\FR\FM\18APR1.SGM
18APR1
]]>Agencies
[Federal Register Volume 76, Number 74 (Monday, April 18, 2011)]
[Rules and Regulations]
[Pages 21652-21660]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9288]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[EPA-HQ-OPA-2008-0821; FRL-9297-3]
RIN 2050-AG50
Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure (SPCC) Rule--Amendments for Milk and Milk Product
Containers
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency)
is amending the Spill Prevention, Control, and Countermeasure (SPCC)
rule to exempt all milk and milk product containers and associated
piping and appurtenances from the SPCC requirements. The Agency is also
removing the compliance date requirements for the exempted containers.
DATES: This final rule is effective on June 17, 2011.
ADDRESSES: The public docket for this rulemaking, Docket ID No. EPA-HQ-
OPA-2008-0821, contains the information related to this rulemaking,
including the response to comments document. All documents in the
docket are listed in the 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
[[Page 21653]]
Information Center at 703-412-9810 or TDD 703-412-3323. For more
detailed information on specific aspects of this final rule, contact
either Gregory Wilson at 202-564-7989 (wilson.gregory@epa.gov) or,
Vanessa E. Principe at 202-564-7913 (principe.vanessa@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 Final Rule
III. Statutory Authority and Delegation of Authority
IV. Background
V. This Action
A. Finalize Modified Amendments
1. Industry Sanitary Standards and Construction Requirements
2. Summary of Comments
3. Response to Comments
4. Universe Affected by This Action
B. Removal of Compliance Date for Exempted Containers,
Associated Piping and Appurtenances
VI. Statutory and Executive Order Reviews
A. Executive Orders 12866 and 13563: 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
K. Congressional Review Act
I. General Information
On January 15, 2009, EPA proposed to amend the Spill Prevention,
Control, and Countermeasure (SPCC) rule to tailor and streamline the
requirements for the dairy industry. Specifically, EPA proposed 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. The Agency is modifying the proposed exemption to exempt all milk
containers, and associated piping and appurtenances and is further
extending the exemption to also include all milk product containers,
and associated piping and appurtenances. Finally, the Agency is
removing the compliance date requirements for the exempted containers.
EPA estimates that dairy farms will incur an average annualized
savings of $133 million and milk product manufacturing plants an
average annualized savings of $13 million (estimates based on 2009$ and
a 7% discount rate). In aggregate, the total annualized savings is
estimated at $146 million. The Regulatory Impact analysis, which can be
found in the docket, provides more detail of the cost savings and
methodology.
Cost and Benefits of the Final Rule
------------------------------------------------------------------------
Annualized cost savings
---------------------------------------
Discounted at 3% Discounted at 7%
------------------------------------------------------------------------
Costs........................... $0 $0
Benefits (Cost Savings)......... 143 146
Net Benefits (Benefits--Costs).. 143 146
------------------------------------------------------------------------
II. Entities Potentially Affected by This Final Rule
------------------------------------------------------------------------
Industry sector NAICS code
------------------------------------------------------------------------
Farms...................................................... 111, 112
Food Manufacturing......................................... 311
------------------------------------------------------------------------
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 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.
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 the various types of oils, specifically:
Animal fats and oils and greases, and fish and marine mammal oils; oils
of vegetable origin; other non-petroleum oils and greases; and
petroleum oils. 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 promulgated a series of amendments to the SPCC rule in December
2006, December 2008 and November 2009 that provided the
[[Page 21654]]
facility owner or operator with significant flexibility to comply with
the SPCC regulatory requirements. Facilities handling animal fats and
vegetable oils (AFVOs), subject to the SPCC rule because of their oil
storage capacity, may benefit from a number of these amendments, which
tailored prevention and control measures to the facility type and oils
being stored. The provisions included streamlined requirements for
qualified facilities and reduced requirements for a subset of those
qualified facilities. The rule also amended the security, integrity
testing, and facility diagram requirements, while exemptions were
provided for pesticide application equipment and related mix
containers, and for single-family residential heating oil containers.
Finally, the amendments offered clarifications for fuel nurse tanks,
wind farms and for the definition of ``facility.''
Milk typically contains a percentage of animal fat, a non-petroleum
oil. Thus, containers storing milk and milk products are currently
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 currently
subject to the applicable provisions under Sec. 112.12. Additionally,
milk is processed in containers during the pasteurization process.
These continuous pasteurizers, while not bulk storage containers, are
considered oil filled-manufacturing equipment and are currently subject
to the general provisions of the SPCC rule under Sec. 112.7. Finally,
milk is also handled and transferred through piping and appurtenances
associated with containers which are currently subject to certain
provisions of the SPCC rule.
In response to EPA's October 2007 proposal for amendments to the
SPCC rule (72 FR 58378, October 15, 2007), several comments requested
that EPA exempt containers used to store milk from the SPCC
requirements. Specifically, these comments suggested that milk storage
containers be exempted from the SPCC requirements because the Grade
``A'' PMO addresses milk storage and tank integrity. The comments
identified the PMO, which specifically addresses milk intended for
human consumption, as a model ordinance maintained through a
cooperative agreement between the States, the Food and Drug
Administration (FDA), and the regulated community. States typically
adopt the PMO either by reference, or by directly incorporating similar
requirements into their statutes or regulations.
Thus, on January 15, 2009, the Agency published a proposal to
exempt from SPCC requirements milk containers and associated piping and
appurtenances 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 [74 FR 2463].
The Agency also requested comment on an exemption for milk product
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 Grade ``A'' PMO sanitation requirements or a State dairy
regulatory equivalent to the current applicable PMO. In addition, the
Agency requested 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
Grade ``A'' PMO or a State dairy regulatory requirement equivalent to
the current applicable PMO. Finally, the Agency requested comment on
alternative approaches to address milk and milk product containers,
associated piping and appurtenances under the SPCC rule.
After the Agency's review of comments and consideration of all
relevant facts, today's rule modifies the proposed exemption to exempt
all milk containers, and associated piping and appurtenances and
further extends the exemption to include all milk product containers,
and associated piping and appurtenances. The Agency is also removing
the compliance date requirements for the exempt containers.
V. This Action
A. Finalize Modified Amendments
The Agency is exempting from the SPCC requirements milk and milk
product containers, and associated piping and appurtenances.
Additionally, the capacity of these exempted containers, and associated
piping and appurtenances is not to be included in a facility's total
oil storage capacity calculation (see Sec. 112.1(d)(2)(ii)). The
Agency is also removing the compliance date requirements for the
exempted containers.
This preamble discusses these provisions, and any related comment
received during the 2009 comment period, that raised substantive policy
issues. For a complete discussion of the comments received in 2009, see
Comment and Response Document Oil Pollution Prevention; SPCC Plan
Requirements--Amendments, a copy of which is available in the docket
for this rulemaking.
1. Industry Sanitary Standards and Construction Requirements
Milk and milk product containers and their associated piping and
appurtenances are generally constructed according to an industry
standard established by the 3-A Sanitary Standards organization (3-A
Sanitary Standards, Inc., McLean, VA, https://www.3-a.org) which satisfy
the PMO model code construction requirements for milk and milk product
containers and associated piping and appurtenances. These containers,
associated piping and appurtenances may also be subject to the U.S.
Department of Agriculture (USDA) Recommended Requirements for Milk for
Manufacturing Purposes and its Production and Processing (Milk for
Manufacturing Purposes and Its Production and Processing; Requirements
Recommended for Adoption by State Regulatory Agencies; see https://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELDEV3004791). All milk
handling operations subject to the PMO are required to have an
operating permit, and are subject to inspection by State dairy
regulatory agencies. The PMO model code establishes criteria for the
permitting, inspection and enforcement of milk handling equipment and
operations that govern all processes for milk intended for human
consumption.
Likewise, USDA has developed and maintains a set of model
regulations relating to quality and sanitation requirements for the
production and processing of manufacturing grade milk, which are
recommended for adoption and enforcement by the various States that
regulate manufacturing grade milk. The purpose of the model
requirements is to promote uniformity in State dairy laws and
regulations relating to manufacturing grade milk. These recommended
requirements contain criteria similar to those of the PMO for milk for
manufacturing purposes, including its processing, use, labeling and
storage. Furthermore, these requirements include provisions for
inspections, certification and licensing of facilities that handle and
process milk for manufacturing purposes and its products. These
requirements serve as the basis for the exemption of milk and milk
product containers, and their associated piping and appurtenances
[[Page 21655]]
from the SPCC rule. Milk and milk product containers, associated piping
and appurtenances are generally constructed in accordance with
standards like the current applicable 3-A Sanitary Standards, and are
subject to standards like the current applicable PMO sanitation
requirements, USDA Recommended Requirements for Milk for Manufacturing
Purposes and its Production and Processing, or equivalent State dairy
regulations. The 3-A Sanitary Standards for equipment construction
require the use of durable materials and sanitary construction criteria
that can be easily maintained and kept clean and free of defects when
appropriate cleaning procedures and chemicals are used. Both the PMO
sanitation requirements and the USDA Recommended Requirements include
construction and sanitation standards and frequent State and/or Federal
inspections for these containers, piping and appurtenances, and provide
definitions and/or list those milk and milk products to which they
apply. State dairy requirements for permits/licenses, operations and
inspections are generally structured to be equivalent to the current
applicable PMO requirements and/or USDA Recommended Requirements. The
Agency believes the combination of these specific standards and
requirements address the prevention of oil discharges.
2. Summary of Comments
Support for an Expanded Exemption. There was only one comment to
the 2009 proposal, and it expressed general support for the exemption.
The comment requested that EPA consider exempting all milk and milk
products, including cheese, cream, yogurt and ice cream mix. The
comment stated these products and their containers do not present a
potential for spills into navigable waters of the United States because
the equipment must be constructed to preclude deterioration and must be
maintained to keep it clean and free of defects. The comment states
that all dairy processing equipment, storage containers, piping and
appurtenances are made of high grade stainless steel (with the
exception of some cheese storage containers) and are designed and
constructed in accordance with 3-A and/or FDA's Current Good
Manufacturing Practices (CGMP) or equivalents. The comment also states
that other requirements mandate frequent inspection of dairy operations
for defects in equipment thereby making spillage and leakage highly
improbable.
Exemption of Solid Mixtures. The comment also requested that EPA
exempt cheese and other mixtures that are solid at room temperature
from the SPCC requirements. The comment included as an appendix a
letter commenting on an earlier Agency action and requested an
exemption of substances that are solid at ambient temperatures
(including animal fats). The comment also stated that should a cheese
production or storage facility catch fire, ``under no circumstances
would cheese liquefy and flow'' out of the facility to potentially
pollute or endanger navigable waters of the United States.
Expand the Scope of Regulations and Standards To Qualify the
Exemption. The comment requested that EPA broaden the scope of
regulatory requirements and construction standards to exempt additional
containers from the SPCC rule, specifically those that are subject to
the Food and Drug Administration (FDA) requirements under 21 CFR Part
110. The comment suggested the exemption state: ``The SPCC rule does
not apply to storage containers and associated piping and appurtenances
that contain milk or milk products that are: A) subject to the
construction requirements of 3-A Sanitary Standards or the equivalent
standards approved by a federal, state or local regulatory authority,
and b) are subject to 21 CFR Part 110, the PMO, or a state or local
equivalent.'' Additionally, the comment argued that, along with high
sanitation standards for edible fats and oils, regulations issued by
the Occupational Safety and Health Administration (OSHA) for worker
safety address storage and use of oils at food facilities, thereby
reducing the likelihood, rate and magnitude of a spill should an
accident occur.
Definition of Oil and Oil Mixtures. The comment also argued milk
and milk products should not be defined as oil. The comment
incorporates by reference statements that milk and other dairy products
do not seem to meet the definition of ``oil'' because milk, ice cream
mix, yogurt, cream, cheese and other dairy products are not (1) fat,
oil or grease or (2) fat, oil or grease mixed with waste. The comment
included as an appendix a letter to the Agency commenting on a separate
action, stating there are minimal environmental risks resulting from
edible fats and oils spills and EPA should exempt substances not listed
on the U.S. Coast Guard list of petroleum and non-petroleum oils (e.g.,
milk or milk products). The comment requests EPA clarify the definition
of oil and oil mixtures so that lower fat mixtures, e.g., those below
50 percent fat, or those that are solid at room temperature might not
be considered oil, thereby exempting most milk and milk products from
the SPCC requirements. The commenter further requested EPA not initiate
any enforcement actions against operations where there is substantial
doubt regarding whether substances at those facilities are within the
scope of the SPCC rule until EPA has clarified oil mixtures.
3. Response to Comments
Support for an Expanded Exemption. EPA recognizes the merits to
arguments supporting an exemption for milk product containers. Thus,
EPA is amending the proposed exemption by exempting all milk
containers, and associated piping and appurtenances and by further
extending the exemption to include all milk product containers, and
associated piping and appurtenances. The exempted containers include
all milk and milk product containers as defined in the PMO model code,
but also all milk and milk product containers subject to the USDA
Recommended Requirements for Milk for Manufacturing Purposes and its
Production and Processing. EPA also acknowledges that some milk and
milk product handling operations are subject to 21 CFR 110. However,
EPA believes that the dairy specific standards above apply to the vast
majority of milk and milk product containers. The Agency could not
identify any milk or milk product containers that are not subject to
PMO, USDA Recommended Requirements for Milk for Manufacturing Purposes
and its Production and Processing, or equivalent State dairy regulatory
requirements and thus the final rule exempts all milk and milk product
containers from the SPCC requirements.
In this final rule, EPA is amending the scope of the exemption by
exempting all milk containers, and associated piping and appurtenances
and by further expanding the exemption to include all milk product
containers, and associated piping and appurtenances. These exempted
milk and milk product containers, and associated piping and
appurtenances are constructed according to standards like the current
applicable 3-A Sanitary Standards, and are subject to standards like
the current applicable Grade ``A'' (PMO), USDA Recommended Requirements
for Milk for Manufacturing Purposes and its Production and Processing,
or equivalent State dairy regulatory requirements. Because of their
operational requirements, particularly for permits/licenses and
frequent inspections, the Agency expects the owner or operator of a
facility with milk
[[Page 21656]]
and milk product containers subject to the 3-A Sanitary Standards, and
PMO requirements, USDA Recommended Requirements for Milk for
Manufacturing Purposes and its Production and Processing, or equivalent
State dairy regulatory requirements, to be in compliance with those
provisions in order to maintain their operations. For the purposes of
this provision, ``equivalent'' means a State dairy regulation that
includes all the components of the PMO model code and/or the USDA
Recommended Requirements. All milk and/or milk product transfer and
processing activities are included in the scope of this exemption from
the SPCC rule.
Exemption of Solid Mixtures. EPA disagrees that all oils or oil
mixtures that are solid at room temperature should, as a general
matter, be exempted from the SPCC rule. Vegetable oils and animal fats
that are solid at room temperature serve as potent physical
contaminants and are more difficult to remove from affected animals
than petroleum oil (see 62 FR 54511, October 20, 1997).
The Agency believes that spill prevention for milk and milk
products produced for processing and manufacturing (e.g., butter,
cheese, dry milk) are appropriately addressed through standards like
the PMO model code, the USDA Recommended Requirements for Milk for
Manufacturing Purposes and its Production and Processing, or equivalent
State dairy regulatory requirements, and thus is extending the
exemption to include all milk and milk product containers, associated
piping and appurtenances.
To decide whether a facility is subject to the SPCC rule, the owner
or operator must first identify whether there is a reasonable
expectation of an oil discharge to navigable waters or adjoining
shorelines from the facility. The owner or operator of a facility may
consider the nature and flow properties of the oils handled at the
facility to make this determination (for more information, see Chapter
2 of the SPCC Guidance for Regional Inspectors). If there is a
reasonable expectation that any oil (in any container) at the facility
may impact waters if discharged, then the next step is to determine the
aboveground and completely buried storage capacity of all oil located
at the facility (except for exempt containers). If the aboveground
storage capacity is greater than 1,320 U.S. gallons or the completely
buried capacity is greater than 42,000 U.S. gallons, then the facility
is subject to the SPCC rule and the owner or operator must develop an
SPCC Plan that describes oil handling operations, spill prevention
practices, discharge or drainage controls, and the personnel, equipment
and resources at the facility that are used to prevent oil spills from
reaching navigable waters or adjoining shorelines. However, if the
owner or operator of the facility determines there is not a reasonable
expectation of discharge of oil to navigable waters or adjoining
shorelines from all oils stored at the facility then the facility is
not subject to the SPCC requirements. We recommend that the owner or
operator document and date these determinations in the event that EPA
challenges the determination following an inspection.
The SPCC rule is primarily a performance-based rule, therefore, the
owner or operator may consider the properties of each oil located at
the facility to identify measures and procedures to prevent spills from
the facility. For example, storage of an oil in solid form inside a
building may provide adequate secondary containment. Additionally, many
SPCC rule provisions allow for environmentally equivalent alternatives
to be used (except for secondary containment) provided they are
documented in the Plan and certified by a Professional Engineer (see
Chapter 3 of the SPCC Guidance for Regional Inspectors for more
information).
Expand the Scope of Regulations and Standards To Qualify the
Exemption. EPA agrees that the scope of the exemption should apply to
all milk and milk product containers because they are subject to a
combination of standards like the 3-A Sanitary Standards with either
PMO or the USDA requirements or State equivalent dairy regulations. EPA
is expanding the exemption because non-PMO milk and milk product
containers are subject to standards like the USDA Recommended
Requirements for Milk for Manufacturing Purposes and its Production and
Processing, or equivalent State dairy regulations. The Agency believes
the components of these requirements are comparable to the PMO
requirements. Specifically, both PMO and USDA Recommended Requirements
have provisions that include permitting/licensing, inspections,
construction standards, operations, maintenance, enforcement and other
sanitation requirements.
All milk and milk product handling operations subject to the PMO
and USDA Recommended Requirements must have an operating permit or
license, and are subject to inspection by State dairy regulatory
agencies. Both the PMO and the USDA Recommended Requirements establish
criteria for the permitting/licensing, inspection and enforcement of
handling equipment and operations that typically govern processes for
milk and milk products intended for human consumption and for milk
produced for processing and manufacturing products for human
consumption. These include, but are not limited to, specifications for
the design and construction of milk and milk product 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 milk products, and
thus, to ensure a proper sanitary environment, standards like both the
PMO and the USDA Recommended Requirements require that milk and milk
product containers be frequently emptied, cleaned, inspected and
sanitized and that records of such events be maintained. Such frequent
cleaning and inspection of the containers suggests that any leaks or
deterioration of container integrity would be quickly identified. PMO
and USDA Recommended Requirements also require inspections of
facilities with such milk and milk products handling operations by the
State-designated regulatory agency prior to issuing a permit or
license, and routine inspections thereafter (for example, at dairy
farms covered by PMO at least once every six months) by a State
designated regulatory agency. Inspections at these facilities encompass
those elements associated with the milk and milk products operation,
including the containers, and associated piping and appurtenances.
Violations of the permitting or licensing requirements may result in
the suspension or revocation of the facility's operating license or
permit.
USDA regulations, guidelines and recommended requirements all
recognize the unique nature in which milk and milk products are handled
and stored in contrast to other oils intended for human consumption.
Subpart D--Farm Requirements for Milk for Manufacturing of the USDA
Recommended Requirements for Milk for Manufacturing Purposes and its
Production and Processing requires that farm bulk tanks meet 3-A
Sanitary Standards for construction at the time of installation, that
they be installed in accordance with USDA regulations, and that all new
utensils and equipment be in compliance with applicable 3-A Sanitary
Standards. Furthermore USDA regulation under 7 CFR 58.128(d) requires
new or replacement storage
[[Page 21657]]
tanks or vats to comply with the appropriate 3-A Sanitary Standards
(i.e., Storage Tanks for Milk and Milk Products or Sanitary Standards
for Silo-Type Storage Tanks for Milk and Milk Products). According to
USDA Guidelines for the Sanitary Design and Fabrication of Dairy
Processing Equipment, ``Dairy Grading Branch policy fully supports and
utilizes established 3-A Sanitary Standards and Accepted Practices.''
Furthermore the document says ``When a USDA-Dairy Grading Branch review
is requested of equipment for which there are no 3-A Sanitary Standards
or Accepted Practices, USDA will use the general criteria, guidelines,
and principles outlined in this document. These criteria, guidelines,
and principles are consistent with those utilized by the 3-A Sanitary
Standards Committees during the development of standards and accepted
practices.''
Although OSHA worker safety regulations may apply to facilities
with milk or milk product containers, their requirements specifically
focus on worker safety and do not address container design or container
inspection practices as in the case of the PMO or USDA requirements and
the 3-A Sanitary Standards. The FDA requirements under 21 CFR Part 110,
are current good manufacturing practices in manufacturing, packing, or
holding human food and apply to all foods under FDA jurisdiction;
whereas PMO and USDA requirements are specific to milk and milk
products. The PMO model code and the USDA Recommended Requirements are
specific to milk and milk products and serve to minimize their
potential for discharge because they include permitting or licensing of
facilities, strict inspection frequencies and enforcement procedures,
among others. The monitoring and sanitation standards under PMO and
USDA serve in part as spill prevention measures because the frequent
cleaning and inspections of the milk and milk product containers,
associated piping and appurtenances leads to early identification of
equipment failure, and spill detection. Failure to comply with these
provisions may lead to a suspension of licenses or permits issued under
PMO or USDA.
Definition of Oil and Oil Mixtures. EPA does not agree with the
comment that milk is not an oil. Milk and other milk products comprised
of animal fats meet both the definition of oil and of non-petroleum oil
included in Sec. 112.2 of the rule. EPA has an established record of
including animal fats and vegetable oils in planning and spill
prevention requirements (see 40 FR 28849, July 9, 1975; and 62 FR
54509, October 20, 1997). The SPCC rule defines oil as ``oil of any
kind or in any form, including, but not limited to: Fats, oils, or
greases of animal, fish, or marine mammal origin; vegetable oils,
including oils from seeds, nuts, fruits, or kernels; and, other oils
and greases, including petroleum, fuel oil, sludge, synthetic oils,
mineral oils, oil refuse, or oil mixed with wastes other than dredged
spoil.'' (40 CFR 112.2) The rule further defines non-petroleum oil as
``oil of any kind that is not petroleum-based, including, but not
limited to: Fats, oils, and greases of animal, fish, or marine mammal
origin; and vegetable oils, including oils from seeds, nuts, fruits,
and kernels.'' Both definitions qualify the listed examples with the
statement ``including but not limited to'' which indicates that these
definitions are not limited by the examples provided.
EPA disagrees with the comment that edible fats and oils pose
minimal environmental risks. In a notice published on October 20, 1997
(62 FR 54508), EPA denied a request submitted by various trade
associations to treat facilities that handle, store, or transport
animal fats and vegetable oils in a manner differently from those
facilities that store petroleum-based oils. The petitioners claimed
that unlike most if not all other oils, animal fats and vegetable oils
are non-toxic, readily biodegradable, not persistent in the
environment, and in fact are essential components of human and wildlife
diets. EPA agrees with the comment that animal fats and vegetable oils,
which are consumed in small amounts, are an essential component of
human and wildlife diets. However, large amounts of such oils, when
discharged into navigable waters or adjoining shorelines, present
significant risks to the environment, including wildlife. In fact, the
environmental effects of petroleum and non-petroleum oils, including
vegetable oils and animal fats, are similar because of the physical and
chemical properties common to both. (See Federal Register notice at 62
FR 54508; October 20, 1997 for more information on the environmental
effects of oil spills of edible fats and oils.)
EPA acknowledges that the U.S. Coast Guard list of petroleum and
non-petroleum oils \2\ does not specifically list milk or milk
products; however, this does not provide an adequate basis to exempt
milk or milk products from the SPCC rule, especially since they meet
the definition of oil under the SPCC rule. Moreover, the U.S. Coast
Guard list only includes examples of oils and is not meant to be all-
inclusive. The examples are organized alphabetically into several
subgroups, including a group for edible animal and vegetable oils and
other oils of animal or vegetable origin (which have historically been
considered Clean Water Act (CWA) oils). While milk and milk products
are not specifically included on the Coast Guard list, for purposes of
SPCC, they fall under the category of edible animal and vegetable oils.
---------------------------------------------------------------------------
\2\ The U.S. Coast Guard List Of Petroleum and Non-petroleum
Oils can be found at: https://homeport.uscg.mil/mycg/portal/ep/contentView.do?contentTypeId=2&channelId=-30565&contentId=120944&programId=117833&programPage=%2Fep%2Fprogram%2Feditorial.jsp&pageTypeId=13489.
---------------------------------------------------------------------------
Finally, the Agency did not propose changes to the definitions of
oil or oil mixture and therefore defining oil and/or oil mixtures are
issues outside the scope of this action. Furthermore, EPA will continue
to enforce the Oil Pollution Prevention regulations for oil mixtures.
The owner or operator of a SPCC-subject facility should consider the
definition of oil included in Sec. 112.2 of the rule and the CWA
definition of oil when making determinations on how to address the SPCC
requirements.
4. Universe Affected by This Action
The approach in this action addresses the concerns raised by the
dairy industry for milk producers (dairies) and milk product facilities
subject to the SPCC requirements. In 2009, the National Agricultural
Statistics Service (NASS), an agency within the USDA, estimated there
were 65,000 operations with one or more milk cows and 1,178 facilities
manufacturing one or more dairy products (excluding fluid milk
products) in the United States. Most of the 65,000 operations with milk
cows produce only fluid milk (subject to the PMO or the USDA
Recommended Requirements) and their milk storage containers would be
exempted. Manufactured dairy facilities handle milk and milk products
subject to standards such as either the PMO or the USDA Recommended
Requirements, and all their milk/milk product storage containers are
also exempt. Milk or milk product containers not under the PMO or the
USDA Recommended Requirements are generally covered by an equivalent
State dairy regulation; all these State regulated milk and milk product
containers are also exempt. This action exempts the entire universe of
milk and milk product containers, and associated piping and
appurtenances.
Note that milk and milk product facilities may handle other oils
subject
[[Page 21658]]
to the SPCC requirements. These facilities either have or are
developing SPCC Plans in anticipation of the compliance date, but will
not have to account for, or address the exempted containers in their
SPCC Plans. Some of these facilities may now be either exempt, or
eligible as a qualified facility to self-certify the facility's SPCC
Plan. In addition, ``micro'' processor facilities that process one milk
product are expected to manufacture and/or store quantities below the
SPCC applicability thresholds for container or aggregate quantities
(e.g., 1,000 pounds of cheese per month; self-bottling milk for farm
consumption). The container sizes at these facilities are typically
below the 55-gallon de minimis container size of the SPCC rule and
therefore, are unlikely to be subject to SPCC requirements (see SPCC
Guidance for Regional Inspectors for more information).
B. Removal of Compliance Date for Exempted Containers, Associated
Piping and Appurtenances
On October 14, 2010, the Agency delayed the compliance date by
which facilities must address milk and milk product containers,
associated piping and appurtenances that are constructed according to
the current applicable 3-A Sanitary Standards, and subject to the
current applicable Grade ``A'' PMO or a State dairy regulatory
requirement equivalent to the current applicable PMO (see 75 FR 63093).
The date by which the owner or operator of a facility must comply with
the SPCC requirements for these milk and milk product containers was
delayed one year from the effective date of a final rule specifically
addressing these milk and milk product containers, associated piping
and appurtenances, or as specified by a rule that otherwise establishes
a compliance date for these facilities. This delay of the compliance
date was to provide time for certain facilities to undertake the
actions necessary to prepare or amend their SPCC Plans, as well as
implement them. Today's action specifically addresses those milk and
milk product containers, associated piping and appurtenances for which
the delay was established and does so by exempting them from any SPCC
regulatory requirements. Thus, a date for the exempted containers to
come into compliance with SPCC requirements is no longer necessary. As
such, the Agency is removing the regulatory requirement to comply with
SPCC for these exempt containers by a date certain. The Agency provided
notice of its intent in the October 14, 2010 final rule. The regulatory
text is amended by removing and reserving 112.3(c).
This action does not affect the owner or operator's responsibility
to prevent oil discharges, including those of milk or milk products,
into navigable waters or adjoining shorelines. These discharges may be
subject to other applicable statutes and regulations, including but not
limited to Section 311 of the Clean Water Act, 33 U.S.C. 1321.
VI. Statutory and Executive Order Reviews
A. Executive Orders 12866 and 13563: Regulatory Planning and Review
Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993) and Executive Order 13563 (76 FR 3821, January 18,
2011), 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 EOs 12866 and 13563 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 Final Amendment to the Oil
Pollution Prevention Regulations to Exempt Certain Milk and Milk
Product 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 VI-C.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
The final rule amendment exempts from the SPCC rule milk and milk
product containers, associated piping and appurtenances. 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. Burden is defined at 5 CFR 1320.3(b).
An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. 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 final 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 dairy farms, which constitute a large percentage of the
facilities affected by this final rule, defines small businesses as
having less than $0.75 million per year in sales receipts; (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 final rule on small
entities, the Agency certifies that this action will not have a
significant economic impact on a substantial number of small entities
since the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. 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 * * * rule on small
entities'' (5 U.S.C. 603 and 604).
Under this final rule, EPA is exempting from SPCC rule requirements
milk and milk product containers, associated piping and appurtenances
because they are generally designed, constructed and maintained
according to the standards such as the current applicable 3-A Sanitary
Standards, and are subject to the standards such as the current
applicable Grade ``A'' PMO, USDA Recommended Requirements for Milk for
Manufacturing Purposes and its Production and Processing, or an
[[Page 21659]]
equivalent State dairy regulatory requirement. Overall, EPA estimates
that this final action will reduce annual compliance costs by
approximately $146 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
will be affected each year (2010-2019) by the final 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,
the storage requirements for milk, and conversations with industry
representatives. EPA also estimated the milk/milk product and fuel oil
storage capacity of milk processing facilities, and estimated the cost
savings associated with the exemption for milk/milk product 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. While the Agency extended
the exemption to include milk product containers, piping and
appurtenances, it does not have data on the number of milk product
containers at milk product manufacturing facilities to determine the
overall cost savings for the exemption. Therefore, EPA expects that the
total cost savings for the final rule is underestimated.
EPA, therefore, concludes that this final rule will relieve
regulatory burden for small entities and certifies that this action
will not have a significant economic impact on a substantial number of
small entities. EPA requested comment on potential impacts on small
entities, but received no comments specific to small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or Tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
Tribal governments or the private sector; therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA. This
action is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments; the amendments 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 final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Under 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 or adjoining shorelines. EPA recognizes
that some States have more stringent requirements (56 FR 54612, October
22, 1991). This final rule would not preempt State law or regulations.
Thus, Executive Order 13132 does not apply to this final rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule
will not significantly or uniquely affect communities of Indian Tribal
governments. Thus, Executive Order 13175 does not apply to this final
rule. EPA specifically solicited additional comment on this action from
Tribal officials, but none was received.
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 final 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 final rule is
to decrease the regulatory burden on certain 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.
The owner or operator of a facility subject to the SPCC rule has
the flexibility to consider applicable industry standards in the
development of an SPCC Plan, in accordance with good engineering
practice. EPA solicited comments on this aspect of the rulemaking and,
specifically, invited the public to identify potentially applicable
voluntary consensus standards and to explain why such standards should
be used in this regulation. The single comment submitted agreed with
the use of the 3-A Sanitary Standards and the PMO model code as a basis
for exempting milk and milk product containers, associated piping and
appurtenances from the SPCC requirements. However, this rulemaking does
not involve technical standards, as it does not set or incorporate by
reference any one specific technical standard. Therefore, the NTTAA
does not apply.
[[Page 21660]]
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 final 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.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
904(2). This rule will be effective June 17, 2011.
List of Subjects in 40 CFR Part 112
Environmental protection, Animal fats and vegetable oils, Farms,
Milk, Milk products, Oil pollution, Tanks, Water pollution control,
Water resources.
Dated: April 12, 2011.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 112 as follows:
PART 112--OIL POLLUTION PREVENTION
0
1. The authority citation for part 112 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; and E.O.
12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351.
Subpart A--[Amended]
0
2. Amend Sec. 112.1 by adding paragraphs (d)(2)(ii)(F) and (d)(12) to
read as follows:
Sec. 112.1 General applicability.
* * * * *
(d) * * *
(2) * * *
(ii) * * *
(F) The capacity of any milk and milk product container and
associated piping and appurtenances.
* * * * *
(12) Any milk and milk product container and associated piping and
appurtenances.
* * * * *
Sec. 112.3 [Amended]
0
3. Amend Sec. 112.3 by removing and reserving paragraph (c).
[FR Doc. 2011-9288 Filed 4-15-11; 8:45 am]
BILLING CODE 6560-50-P
