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 

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 

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 http:// 

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 http:// 

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 


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1The requirements of the Edible Oil Regulatory 

Reform Act do not apply to the Food and Drug 

Administration and the Food Safety and Inspection 

Service. 

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 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 

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 


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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. 

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 

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, http:// 

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 http://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 


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Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 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 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 

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 


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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 

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 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 


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Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 21657 

2The U.S. Coast Guard List Of Petroleum and 

Non-petroleum Oils can be found at: http:// 

homeport.uscg.mil/mycg/portal/ep/

contentView.do?contentTypeId=2&channelId=- 

30565&contentId=120944&programId=117833

&programPage=%2Fep%2Fprogram%2Feditorial.

jsp&pageTypeId=13489. 

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 

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 

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 


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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 


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Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 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. 


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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 

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 

■ 1. The authority citation for part 112 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 

2720; and E.O. 12777 (October 18, 1991), 3 

CFR, 1991 Comp., p. 351. 

Subpart A—[Amended] 

■ 2. Amend § 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. 

* * * * * 

§ 112.3 [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 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Interim rule. 

SUMMARY: 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 

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 


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