must be designed to prevent a discharge as described in Sec.  112.1(b).
The Agency believes general secondary containment should be designed to
address the most likely discharge from the primary containment system.
Section Sec.  112.7(c) allows for the use of certain types of active
containment measures (countermeasures or spill response capability)
which prevent a discharge to navigable waters or adjoining shorelines.
Active containment measures are those that require deployment or other
specific action by the owner or operator. These measures may be
deployed either before an activity involving the handling of oil
starts, or in reaction to a discharge so long as the active measure is
designed and can reasonably be implemented to prevent an oil spill from
reaching navigable water or adjoining shorelines. Passive measures are
permanent

installations and do not require deployment or action by the owner/
operator. The efficacy of active containment measures to prevent a
discharge depends on their technical effectiveness (e.g., mode of
operation, absorption rate), placement and quantity, and timely
deployment prior to, or following a discharge. For discharges that
occur only during manned activities, such as those occurring during
transfers, an active measure (e.g, sock, mat, other portable barrier,
or land-based response capability) may be appropriate, provided that
the measure is capable of containing the oil discharge volume and rate,
and is timely and properly constructed/deployed. The Agency also
believes that these active measures may be appropriately applied to
other situations (e.g., when the refueler is not engaged in transfer
operations or moving around the facility).
    EPA believes that the general provisions for secondary containment
address the most likely spill scenarios associated with this equipment
(i.e., transfers from the refuelers to the aircraft). Section 112.7(c)
does not prescribe a size for a secondary containment structure but
does require appropriate containment and/or diversionary structures or
equipment to prevent a discharge as described in Sec.  112.1(b). These
proposed revisions would maintain environmental protection, while still
allowing the necessary flexibility for compliance with the general
secondary containment requirements of the rule.
    Alternatively, EPA considered whether the general secondary
containment requirements of Sec.  112.7(c) should be applied to airport
mobile refuelers only during any fuel transfer activity and not while
the refueler is moving or out of service (e.g. parked or idle) provided
that the facility is in compliance with current NFPA 407 and NFPA 415
requirements and any applicable FAA requirements that govern fuel
handling. If a facility is not in compliance with NFPA 407, and 415 and
FAA requirements, then it must comply with the general secondary
containment requirements at all times. The Agency did not propose this
approach because NFPA 407 and NFPA 415 are designed for fire protection
rather than environmental protection; a properly designed drainage
system that meets the intent of NFPA 407 and NFPA 415 might not
adequately prevent fuel from being discharged in quantities that may be
harmful. In addition, EPA has no information on the degree of
compliance with, alternatives to, or applicability of, NFPA 407 and
NFPA 415 to all airport facilities. Consequently, EPA did not propose
this approach. EPA welcomes comment on this issue.
    The Agency seeks comments on the proposed definition for ``airport
mobile refuelers,'' the adequacy of general secondary containment
requirements for preventing discharges as described in Sec.  112.1(b)
from airport mobile refuelers, whether the proposed regulatory relief
satisfies the concerns of airport owners and/or operators, and the
ability to apply active measures as described in Sec.  112.7(c).
Additionally, the Agency seeks comments on whether the relief provided
specific to Sec.  112.8(c)(2) and (11) should be more broadly applied
to other types of mobile refuelers or railcars that are subject to
Sec.  112.8(c)(2) and (11) and Sec.  112.12(c)(2) and (11). Any
alternative approaches presented must include an appropriate rationale
and supporting data in order for the Agency to be able to consider them
for final action.

E. Animal Fats and Vegetable Oils

    In 1995, Congress enacted the Edible Oil Regulatory Reform Act
(EORRA), 33 U.S.C. 2720. That statute requires most Federal agencies to
differentiate between, and establish separate classes for, various
types of oil, specifically, animal fats and oils and greases, and fish
and marine mammal oils, and for oils of vegetable origin, including
oils from seeds, nuts, and kernels; and other oils and greases,
including petroleum. EORRA also requires affected agencies to apply
standards to the different classes, based on considerations of
differences in the physical, chemical, biological, and other properties
of these oils and on the environmental effects of the oils.
    In the July 17, 2002 final SPCC rule, the Agency promulgated
general requirements in Sec.  112.7 for SPCC Plans for all facilities
and all types of oil, as well as additional requirements tailored to
specific types of facilities in Sec. Sec.  112.8 through 112.15. At
that time, in response to EORRA, EPA established separate subparts in
the rule for facilities storing or using the various classes of oil
listed in that act. Subpart C (Sec. Sec.  112.12 through 112.15) sets
out the requirements for facilities with animal fats and oils and
greases, and fish and marine mammal oils; and for oils of vegetable
origin, including oils from seeds, nuts, fruits, and kernels
(hereinafter ``animal fats and vegetable oils'' or ``AFVO''). Subpart B
(Sec. Sec.  112.8 through 112.11) sets out the requirements for
facilities with petroleum oils and non-petroleum oils other than AFVO.
The Agency promulgated the identical requirements for facilities
storing or using all classes of oil in the final rule. As a result,
certain requirements, including requirements for types of facilities
that only exist in the petroleum sector, also apply to facilities
handling animal fats and vegetable oils.\2\
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    \2\ The Agency also responded to a petition it received on
August 12, 1994 to treat facilities that handle, store or transport
animal fats and/or vegetable oils differently from those facilities
that store petroleum based oil. EPA denied that petition, and
published the denial in a Federal Register notice (see 62 FR 54508,
October 20, 1997).
---------------------------------------------------------------------------

    In today's proposal, the Agency proposes to amend Subpart C of part
112 by removing Sec.  112.13 (requirements for onshore oil production
facilities), Sec.  112.14 (requirements for onshore oil drilling and
workover facilities), and Sec.  112.15 (requirements for offshore oil
drilling, production, or workover facilities). As members of the
regulated community pointed out, facilities that process, store, use,
or transport animal fats and/or vegetable oils (AFVO) do not engage in
production, drilling or workover. EPA agrees that these sections should
not be included in part 112, subpart C and therefore proposes to remove
them from the rule. The Agency seeks comment on the proposal to remove
and reserve these sections of Subpart C of the regulation.
    The Agency has not developed a proposal following the 1999 Advanced
Notice of Proposed Rulemaking regarding differentiation of AFVO from
petroleum and other oils in the SPCC rule (64 FR 17227). To assist the
Agency in its ongoing consideration of this issue, EPA requests
suggestions for additional amendments that would differentiate AFVOs
from other classes of oils in the SPCC rule and scientific support for
those amendments. In particular, EPA is seeking information that
specifically addresses the criteria for differentiation set forth in
EORRA, 33 U.S.C. 2720(b); that is, differences in the physical,
chemical, biological, and other properties, as well as the
environmental effects, of various types of oil, in order for the Agency
to support a rationale for differentiation of oil spill prevention
requirements. The Agency will continue to examine these issues to
determine the appropriateness of amendments to the regulatory scheme
which differentiate the SPCC requirements for AFVO from the
requirements for petroleum and other oils.

VI. Proposed Extension of Compliance Dates for Farms

    The agricultural community has provided EPA with additional

information and data which suggests that the universe of farms subject
to the SPCC rule may be much larger than EPA estimated in the
preparation of the 2002 SPCC rule revisions. EPA believes that the
unique characteristics of farms pose particular challenges to SPCC
compliance and that further consideration of the requirements as they
relate to farms is warranted. We are particularly concerned that many
of these farms are small and that subjecting them to these requirements
may not be necessary. Therefore, EPA intends to review the impact of
the SPCC requirements on farms and will take action in a future
rulemaking.
    While determining if the agriculture sector warrants specific
consideration under the SPCC rule, EPA proposes to extend the
compliance dates for preparing or amending and implementing SPCC Plans
for farms that have a total storage capacity of less than 10,000
gallons. Our basis for taking this action is several fold. First, there
are factors concerning the physical layout of a farm that make this
sector unique within the universe of SPCC-regulated facilities. For
example, farms vary considerably in design and size (less than an acre
to many thousand acres). Further, the environment in which farms
operate varies considerably from other industries. Farmers often own
and/or farm land that are noncontiguous, and may be separated by roads
and other obstacles. Oil is generally not centrally stored and oil
containers may be widely dispersed. Certain SPCC requirements (such as
fencing, lighting, etc.) may be disproportionately difficult and
expensive for farmers to implement, and provide little environmental
benefit. Also, because farms are often residential properties, under
the existing rule, home heating oil tanks may be required to be covered
by the farm's SPCC Plan. Other rule provisions, including security,
would also affect the residential portions of a farm. For these
reasons, we are proposing an extension of the compliance date for farms
with a total storage capacity of less than 10,000 gallons. See Section
B below, for details.

A. Eligibility Criteria

    EPA proposes the 10,000-gallon threshold for farms to be consistent
with the threshold quantity used in the NCP to classify oil discharges
to inland waters as ``major'' (40 CFR 300.5). Thus, a facility storing
less than 10,000 gallons of oil could not be involved in a major
discharge based on the NCP quantitative criterion alone, although use
of this numerical criteria is not meant to imply that smaller
discharges are not harmful. This same 10,000-gallon threshold discharge
volume is also one factor used in identifying facilities that must
prepare and submit a Facility Response Plan (FRP) under Sec.
112.20(f)(1). In addition, 10,000 gallons is a common storage capacity
and such a threshold would extend the compliance dates for a
significant portion of the farm sector. Data provided by the
agricultural industry and the U.S. Department of Agriculture indicate
that the average aggregated aboveground oil storage capacity at farms
surveyed in 2005 was 5,550 gallons; approximately 83 percent of
surveyed farms have aggregated oil storage below 10,000 gallons. Farms
with less than 1,000 acres had an average oil storage capacity of less
than 2,500 gallons; farms with over 1,000 acres had an average oil
storage capacity of almost 8,000 gallons. (See ``Fuel/Oil Storage and
Delivery for Farmers and Cooperatives,'' USDA, March 2005, in the
docket for today's proposal.)
    The Agency seeks comments on whether this threshold appropriately
addresses the concerns of farms with relatively smaller volumes of oil,
while maintaining the environmental protection intended by the
regulation. If commenters suggest alternative volume thresholds, it
will be important for the comments to also include a justification for
such alternative volume thresholds in order for the Agency to
adequately consider the comments submitted. This data would be useful
in final rule deliberations.
    The Agency considers a farm as a specific type of facility under
the SPCC rule and proposes a specific definition for farm under today's
proposal. For this proposed extension, EPA would define ``farm,'' in
part, by adapting the definition used by the National Agricultural
Statistics Service (NASS) in its Census of Agriculture. NASS defines a
farm as any place from which $1,000 or more of agricultural products
were produced and sold, or normally would have been sold, during the
census year. Operations receiving $1,000 or more in Federal government
payments are counted as farms, even if they have no sales and otherwise
lack the potential to have $1,000 or more in sales.
    EPA also considered the definition it uses to exempt farm tanks
under the Underground Storage Tank (UST) regulations at 40 CFR part
280. The Resource Conservation and Recovery Act (RCRA) as amended,
section 9001(1)(A), exempts farm and residential USTs storing less than
1,100 gallons of motor fuel for ``noncommercial'' purposes. As defined
in 40 CFR 280.12, a farm tank is a tank located on a tract of land
devoted to the production of crops or raising of animals, including
fish. The preamble to the UST rule explains that the term ``farm''
includes fish hatcheries, rangeland, and nurseries with growing
operations, but does not include laboratories where animals are raised,
land used to grow timber, and pesticide aviation operations. This term
also does not include retail stores or garden centers where the product
of nursery farms is marketed, but not produced, nor does EPA interpret
the term ``farm'' to include golf courses or other places dedicated
primarily to recreational, aesthetic, or other non-agricultural
activities. (See 53 FR 37082, 37117, September 23, 1988.)
    EPA also considered defining a farm by listing the appropriate
North American Industry Classification System (NAICS) codes, but we
believe that the definition proposed today in Sec.  112.2, along with
the 10,000 gallon threshold quantity, more effectively identifies the
sector to which the extension would appropriately apply. Potentially
affected entities that fall within certain NAICS codes, including 111
(Crop Production) and 112 (Animal Production), are likely to fall
within the proposed definition of farm and should consider the
definition and eligibility criteria further to determine if the
proposed extension applies.
    EPA utilized elements of the UST definition of farm, in combination
with the Census definition, in developing today's proposal. By
combining elements of both of these approaches, the Agency believes the
proposed definition more specifically targets the intended universe for
the extension. EPA seeks comment on the proposed definition for farms,
and whether an alternate definition of ``farm'' may be more
appropriate. Comments may also address the proposed 10,000 gallon
threshold for qualifying for the extension, and whether an alternative
threshold may be more appropriate. Any alternative approaches presented
must include an appropriate rationale and supporting data in order for
the Agency to be able to consider them for final action.

B. Proposed Compliance Date Extension for Farms

    With today's action, EPA proposes to extend the compliance dates
for the owner or operator of a farm, as defined in proposed Sec.
112.2, that has a total storage capacity of 10,000 gallons or less, to
prepare or amend and implement the farm's SPCC Plan. The Agency
proposes to extend the farm compliance dates until EPA completes
information collection and analysis to

determine if differentiated SPCC requirements may be appropriate for
farms. If the Agency determines that differentiated requirements for
farms are warranted, the Agency will publish a notice in the Federal
Register proposing new compliance dates for eligible farms.
    In working to determine how to properly address farms under the
SPCC regulation, EPA will be partnering with USDA to acquire
information to determine if differentiation may be appropriate. EPA
believes that, at this time, an extension is appropriate because of the
large scope of the agricultural community that may be subject to the
SPCC requirements, the fact that many farms are small, and the time
needed to determine how the SPCC requirements should apply if at all,
and the effect of today's proposal on the farm sector. We are also
considering as an alternative approach to exempt farms below a set oil
storage capacity threshold (such as 10,000 or 20,000 gallons) from the
SPCC regulation.
    EPA seeks comment on whether the proposed extension is warranted,
or if a specific time period would be more appropriate than the
proposed indefinite extension. EPA also requests comment on whether it
is more appropriate to exempt all farms having less than a certain oil
storage capacity threshold (such as 10,000 or 20,000 gallons) from all
SPCC requirements. Any alternative approaches presented must include an
appropriate rationale and supporting data in order for the Agency to be
able to consider them for final action.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    Under the terms of Executive Order 12866, this action has been
judged as a ``significant regulatory action'' because it will have an
annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities.
Therefore, this action was submitted to OMB for review and the Agency
has prepared a regulatory analysis in support of today's action,
titled, ``Regulatory Analysis of the Spill Prevention, Control, and
Countermeasure Proposed Rule'' (November 2005). Changes made in
response to OMB suggestions or recommendations will be documented in
the public record. EPA requests comments from the public on the costs
and benefits of any of the possible regulatory changes discussed in
this proposed rulemaking, as well as on appropriate methodologies for
assessing them.
1. Summary of Regulatory Analysis
    The regulatory analysis developed in support of today's action
considers changes in regulatory compliance costs for affected facility
owners and operators, changes in paperwork burden, and impacts on small
businesses. In addition, EPA examined qualitatively the potential
impacts of the regulatory options on oil discharge risk. EPA intends to
continue to update its estimates and assumptions for use in the
analysis supporting the final rule.
a. General Approach
    This analysis develops benefit and cost estimates for the proposed
actions in the four major components of the proposed rule:
    Qualified facilities with smaller storage capacities;
     Oil-filled operational equipment;
     Motive power;
     Airport mobile refuelers.
    The analysis then assesses the impacts of the alternative
regulatory options that EPA considered.
    For each of the components, the benefits consist of reductions in
social costs accruing from reductions in compliance costs. The main
steps used to estimate the compliance cost impacts of the SPCC Proposed
Rule are as follows:
    Develop the baseline universe of SPCC-regulated facilities and unit
cost of compliance estimates for the analysis;
     Estimate the number of facilities affected by each of the
proposed options;
     Estimate unit compliance costs for all elements of the
proposed options;
     Estimate compliance cost savings to potentially affected
facilities; and
     Annualize compliance cost savings over a ten-year period
and discount the estimates to the current year.
    EPA also considered the potential impacts of the proposed rule and
alternative options on the risk of oil discharges, which could lead to
harmful environmental, human health, and welfare consequences. Because
of the lack of data on regulated entities and their likely response to
the regulatory options, the magnitude of such risks is highly
uncertain. Therefore, EPA examined the general nature of the proposed
and alternative changes to assess possible effects on risk.
b. Baseline for the Analysis
    The impacts of the proposed regulation depend on the assumed
baseline of industry behavior in the absence of a new rulemaking. EPA
developed a baseline for the regulatory analysis to assess the change
in regulatory compliance costs associated with each of the proposed
options, mutually exclusive of each other. The baseline provides the
benchmark from which changes in regulatory behavior, caused by the
proposed options, are measured.
    EPA is aware of industry concerns regarding potential non-
compliance among certain facility sizes or sectors, although no
reliable empirical evidence exists to assess the scope and magnitude of
such non-compliance. EPA explicitly considered whether to incorporate
non-compliance in its regulatory analysis of the 2002 revised rule:
``It is possible that some facilities have misinterpreted the existing
regulation and are not currently in full compliance with existing
requirements, but there is no practical way to measure the level of
non-compliance. Moreover, the costs of coming into compliance with the
clarified requirements are not properly attributed to this final
regulation.''
    This rule does not impact any facilities that are not already
required to meet the standards of the SPCC rule. The costs of SPCC
requirements were already imposed on the regulated community by prior
rulemaking in 1973 and 2002. For the benefit-cost analysis, therefore,
EPA is treating these costs as

liabilities the regulated entities currently have--whether or not they
have actually made the capital expenditures to comply. In this
analytical construct, these firms are simply delaying the expenditures
for the costs they already carry. Therefore, EPA used as its baseline
the requirements under 40 CFR part 112 (``SPCC rule''), as amended in
2002 (67 FR 47042). EPA does recognize, however, that there is non-
compliance with the SPCC requirements by some portion of the regulated
community.
c. Description of SPCC-Regulated Universe
    This section describes the universe of facilities subject to
current and proposed SPCC regulations. Calculating the number of
regulated entities is not straightforward. The SPCC rule does not
include a notification requirement and, with certain exceptions, owners
and operators do not submit their SPCC Plans to EPA. The Agency has
invested considerable resources into estimating the number of entities
affected by the SPCC rule.
    EPA has updated its previous estimates of the number of regulated
facilities. The Agency used data from the 2002 Economic Census, the
Census of Agriculture, and a variety of other governmental and non-
governmental sources to estimate the number of regulated facilities in
a large set of industrial and commercial sectors. Since data were not
available for all states, the basic estimation procedure involved
extrapolating from eight state databases using information from the
U.S. Census Bureau. The estimates of the SPCC universe were developed
for 31 industry sectors. Full documentation of the estimates appears in
the Regulatory Analysis document accompanying this proposal.
    In total, EPA estimates that 618,000 facilities are currently
regulated under the SPCC rule. Oil production facilities (28 percent),
farms (25 percent) and electric utility plants (8 percent) account for
most of the SPCC-regulated facilities. Following is a table that
summarizes the estimated number of regulated facilities, by size
category:

------------------------------------------------------------------------
                                                             Number of
             Category                Aggregate  capacity    facilities
------------------------------------------------------------------------
I.................................  1,320 to 10,000              322,000
                                     gallons.
II................................  10,001 to 42,000             216,000
                                     gallons.
III...............................  42,001 to 1 million           77,000
                                     gallons.
IV................................  greater than 1                 3,000
                                     million gallons.
------------------------------------------------------------------------

2. Qualified Facilities
    Today, EPA is proposing to provide an option for qualified
facilities to eliminate the requirement for PE certification, and to
provide flexibility with respect to security measures and integrity
testing for these facilities. This proposed option would provide the
greatest relief to owners and operators of new facilities that are
preparing their first SPCC Plan, as well as cost savings for owners and
operators of existing facilities that make substantive changes to their
Plans in the future.
a. Universe of Affected Facilities
    As noted above, EPA estimates that approximately 322,000 facilities
with storage capacities below 10,000 gallons are subject to the SPCC
requirements in the first year. Over the next ten years, approximately
335,000 facilities with storage capacities below 10,000 gallons would
be subject to SPCC on average. As with all of the regulatory options
considered in developing today's proposed rule, facilities would have
the choice of complying with the existing SPCC rule (as amended in
2002) or taking advantage of the proposed change. EPA assumes that
facilities would likely choose an alternative requirement if (a) they
met the criteria, and (b) it was less costly or otherwise offered
greater benefits than the existing requirement. As with the other
options being considered today, EPA does not know how many facilities
would meet the criteria and choose to avail themselves of the
``Qualified Facility'' options. Therefore, EPA examined the impact of
the ``Qualified Facility'' options under three scenarios: 25 percent,
50 percent, and 75 percent of Category I facilities would likely meet
``Qualified Facility'' status and decide to implement this approach.
EPA estimated that the 84,000 facilities would choose to take advantage
of this option under the 25-percent scenario; 167,000 facilities under
the 50-percent scenario, and 251,000 facilities under the 75 percent
scenario.
b. Compliance Cost Savings
    The main assumptions affecting all regulatory options were based on
updated assumptions from the analyses conducted for the 2002 final
rule. For example, EPA revised the cost estimate for obtaining
Professional Engineer (PE) certification of a new SPCC Plan. The
estimate increased from $1,120 to $2,000 for a PE to certify a new Plan
and from $560 to $750 for a PE to certify a technical change to an
existing Plan. The estimates are based on findings from discussions
with several engineering firms.
    The unit cost of integrity testing was estimated based on
interviews with several tank inspectors. EPA calculated the total cost
of integrity testing per facility by multiplying for a single tank by
the number of tanks per facility.\3\
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    \3\ The number of tanks per facility was calculated using state
oil tank databases.
---------------------------------------------------------------------------

    EPA multiplied burden hour estimates by the hourly wage rates for
specific labor categories to determine the per-facility costs
associated with the proposed rule's paperwork requirements. The labor
wage rates for private industry were derived from the March 2005 U.S.
Department of Labor's Employment Cost Indexes and Levels.\4\
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    \4\ United States Department of Labor, Bureau of Labor
Statistics, Employer Costs for Employee Compensation, June 2005.
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    EPA estimates that if 50 percent of the facilities complied with
the alternative proposed today for qualified facilities that this
option could reduce compliance costs by $22.5 million and $18.4 million
per year, discounted at 3 percent and 7 percent, respectively. EPA
assumed that the proposed flexibility for integrity testing would
reduce the unit cost of testing by 50 percent. If 25 percent of
facilities under 10,000 gallons qualified for this option, compliance
costs would decrease by $11.2 million and $9.19 million per year,
discounted at 3 percent and 7 percent, respectively. If 75 percent of
facilities under 10,000 gallons qualified for this option, compliance
costs would be reduced by $33.7 million and $27.6 million per year,
discounted at 3 percent and 7 percent, respectively.
3. Oil-Filled Operational Equipment
    Today, EPA is proposing to allow owners and operators of facilities
featuring certain kinds of oil-filled operational equipment to
establish and document an inspection or monitoring program, prepare an
oil spill contingency plan and provide a written commitment of
manpower, equipment, and materials in lieu of providing secondary
containment without making an individual impracticability
determination. The option is limited to facilities that have had no
discharges as described in Sec.  112.1(b) from any oil-filled
operational equipment in the ten years prior to the SPCC Plan
certification date, or since becoming subject to 40 CFR part 112 if the
facility has been in operation for less than ten years.
a. Universe of Affected Facilities
    The proposed changes for qualified oil-filled operational equipment
could

address such items as hydraulic systems, lubricating systems (e.g.,
those for pumps, compressors, pumpjacks, and other rotating equipment
including pumpjack lubrication systems), gear boxes, machining coolant
systems, heat transfer systems, transformers, circuit breakers,
electrical switches, and other systems containing oil to enable
operation of the devices. Due to data and time limitations, EPA focused
its economic analysis on the electric utility sector. Consequently, the
analysis likely underestimates the total cost savings from the proposed
``qualified oil-filled operational equipment'' action and the
alternative options.
    Specifically, EPA used data on the number of substations listed by
each major utility reporting to the Federal Energy Regulatory
Commission (FERC).\5\ A national estimate was extrapolated from these
data using the ratio of the megawatt hours sold by utilities to the
estimated total retail megawatt hours of electricity sold nationwide
according to the EIA.
---------------------------------------------------------------------------

    \5\ Major regulated utilities must file FERC Form No. 1, on
which utilities report information on their substations and
electrical equipment. ``Major'' is defined as having (1) one million
megawatt hours or more; (2) 100 megawatt hours of annual sales for
resale; (3) 500 megawatt hours of annual power exchange delivered;
or (4) 500 megawatt hours of annual wheeling for others (deliveries
plus losses).
---------------------------------------------------------------------------

    EPA estimated that the total number of new facilities with total
oil-filled operational equipment would be approximately 2,040 in the
first year. Over the next ten years, approximately 2,450 new facilities
are expected to be added annually on average. This number
underestimates the universe of facilities affected by the proposed
change, since it does not include oil-filled operational equipment from
other industries. Facilities with qualified oil-filled operational
equipment are expected to use a contingency plan with a written
commitment of manpower, equipment and materials and have an established
inspections/monitoring program.
    EPA assumed that existing SPCC-regulated facilities with qualified
oil-filled operational equipment would already have secondary
containment or a determination of impracticability of secondary
containment with a contingency plan and a written commitment of
manpower, equipment and materials in accordance with Sec.  112.7(d). In
such cases, facilities would not benefit from this option. EPA has
provided an economic impact analysis (Appendix A to the Regulatory
Analysis), which examines avoided facility expenditures.
    EPA acknowledges that some fraction of new facilities would,
according to the current SPCC rule requirements, provide an
impracticability determination and provide a contingency plan and a
written commitment of manpower, equipment and materials, rather than
pursue secondary containment. In these cases, the proposed action's
cost savings would be lower, since owners and operators would only be
avoiding an impracticability determination rather than secondary
containment. EPA does not know what fraction of facilities falls into
this situation, and has decided not to incorporate the scenario in the
analysis. As a result, EPA's analysis likely overestimates the cost
savings to facilities in the electric utility industry from the
proposed action.
    However, EPA believes that the overall assessment of cost savings
from this component of the rule may be significantly underestimated.
This is due to the omission of potential cost savings that would accrue
to all other industries outside of electrical utilities.
b. Compliance Cost Savings
    EPA estimates that this component of the proposal could reduce
compliance costs by as much as $56.7 million and $45.9 million per
year, discounted at 3 percent and 7 percent, respectively. EPA
calculated cost savings based on the assumption that new facilities
with qualified oil-filled operational equipment would save the
difference between the cost of secondary containment and the cost of
preparing a contingency plan and a written commitment of manpower,
equipment and materials. EPA estimated annual per-facility cost savings
of $9,000 to $61,000 for new facilities, depending on a facility's size
and other characteristics.
    The Agency recognizes, that at some facilities, owners or operators
with PE-certified SPCC Plans have made a determination that secondary
containment is impracticable, and have implemented contingency plans
and a written commitment of manpower, equipment and materials for the
non-qualified oil-filled operational equipment. Such facilities would
not see significant cost savings from this component of the current
rule. The analysis of cost savings underestimate the number of
facilities with qualified oil-filled operational equipment, but
overestimates the cost savings for facilities that have been counted.
4. Motive Power
    It is not EPA's intent to regulate onboard bulk storage containers
used solely to power the movement of a motor vehicle, or ancillary
onboard oil-filled operational equipment used solely to facilitate its
operation. Although EPA has no empirical data on the amount of such
storage at facilities regulated by the SPCC rule, EPA does not expect
that many facility owners and operators have included motive power in
their oil storage capacity calculations and SPCC Plans. For those who
have considered motive power storage, EPA assumes that the volume that
would be exempt under the proposed rule would not represent a large
fraction of the facility's aggregate capacity.
a. Universe of Affected Facilities
    To identify industries that are potentially affected by motive
power exemptions, EPA started with information from industry comments
to the 2002 SPCC rule. Commenters from the crop production, forestry/
logging, and utilities industries indicated they had motive power
equipment. EPA identified additional industry groups by examining
industries targeted by the major motive power equipment manufacturers.
Caterpillar, Deere & Company, Kubota Corporation, Joy Global Inc., CNH
Global NV, and Terex Corporation are some of the largest motive power
equipment manufacturers. Each company lists the industries targeted by
their products. EPA used these listings as the basis for classifying
industries likely to have motive power containers.
    EPA has no empirical data on the number of facilities with motive
power containers with oil storage of 55 gallons or greater. To estimate
the number of facilities affected by the ``Motive Power'' proposed
rule, EPA examined three scenarios: 10 percent, 25 percent, and 50
percent of the facilities in sectors with motive power may be affected
by the proposed regulatory option. EPA estimated that 29,000 facilities
have ``motive power'' oil storage under the 10-percent scenario; 71,600
facilities under the 25-percent scenario; and 143,000 facilities under
the 50-percent scenario.
b. Compliance Cost Savings
    EPA assumed that ten percent of the facilities in industries
identified as having motive power containers might take advantage of
the proposed exemption. Other facilities could also have motive power
containers, however EPA expects that they have not considered such
storage as part of their compliance with the SPCC rule. Because EPA
expects most facilities with motive power containers to meet the SPCC
rule's oil storage thresholds, regardless of motive power, EPA assumes
that the

cost savings from the proposed exemption will be modest, with the
possibility of saving small amounts of compliance costs, principally
for secondary containment for these motive power containers. EPA
estimates that the proposed option will reduce compliance costs by
$0.92 million and $0.75 million per year, discounted at 3 percent and 7
percent, respectively. The main benefit of the proposed option would be
to provide greater clarity of EPA's regulatory intent.
    EPA also examined two other scenarios: 25 percent and 50 percent of
facilities in industries identified as having motive power containers
might take advantage of the proposed exemption. Under the 25-percent
scenario, compliance costs would be reduced by $2.29 million and $1.87
million per year, discounted at 3 percent and 7 percent, respectively.
Under the 50-percent scenario, compliance costs would be reduced by
$4.58 million and $3.74 million, discounted at 3 percent and 7 percent,
respectively.
5. Airport Mobile Refuelers
    EPA proposes to exempt airport mobile refuelers from the
specifically sized bulk storage secondary containment requirements of
Sec.  112.8(c)(2) and (11). EPA defines an airport mobile refueler as a
``vehicle with an onboard bulk storage container designed for, or used
to, store and transport fuel for transfer into or from aircraft or
ground service equipment.'' The general secondary containment
requirements of Sec.  112.7(c) would still apply to these airport
mobile refuelers and to the transfers associated with this equipment.
Since airport mobile refuelers are mobile or portable bulk storage
containers, the other provisions of Sec.  112.8(c) would still apply.
    The Agency researched regulatory compliance of airports with SPCC
requirements for secondary containment, and found that some airports do
not have sized secondary containment in place. EPA found that secondary
containment for mobile refuelers is not a common practice and that
mobile refuelers rarely have a designated area to park. Factors such as
the land value at many commercial airports prohibits a single,
designated parking area for mobile refuelers.\6\ EPA analyzed potential
cost savings to the industry using an assumption that new facilities
would have to provide secondary containment in accordance with Sec.
112.8(c)(2) and (11) for airport mobile refuelers. Therefore, the
estimated annual cost savings consist of the potential expenditures
avoided of providing secondary containment for new airport mobile
refuelers.
---------------------------------------------------------------------------

    \6\ For detail, see ``Results of Research Project on Airport
Engineering and Construction Firms'', Abt Associates Inc.
memorandum, 2004.
---------------------------------------------------------------------------

    The Agency estimated the total number of new airports at 479 in the
first year. Over the next ten years, approximately 535 new airports are
expected to be added annually on average. EPA assumed one to three
mobile refuelers per airport,\7\ or approximately two per airport on
average. EPA estimates that this component of the proposal could reduce
compliance costs by $6.43 million and $5.23 million per year,
discounted at 3 percent and 7 percent, respectively. The derivation of
these estimates is explained in Chapter 8 of the Regulatory Analysis.
---------------------------------------------------------------------------

    \7\ Based on Federal Aviation Administration estimates (http://www.faa.gov/data_statistics/
).

---------------------------------------------------------------------------

6. Projected Impacts on Human Health, Welfare, and the Environment
    The main benefit of the proposed rule is lower compliance costs for
certain types of facilities and equipment. EPA expects these reduced
expenditures to translate to net social benefits. These benefits may be
partially offset by potential increases in risk of oil discharges, due
to less stringent requirements compared to the existing SPCC rule.
    However, EPA has designed the proposed rule to minimize increases
in environmental risk. For example, EPA is providing an option to avoid
Professional Engineer certification for qualified facilities that have
no history of reportable discharges. Any decision to apply
environmental equivalence or pursue an impracticability determination
would still require PE certification, except for security and integrity
testing. For the other relief offered in the proposal, most facilities
will have general secondary containment that would help prevent
discharges as described in Sec.  112.1(b). In summary, although the
magnitude of any increase in risk under each of the proposed options is
unclear, EPA does not believe that these changes in spill risk are
significant.
    To the extent that lower compliance costs encourage greater overall
compliance, the proposed rule may actually prevent discharges from
currently non-compliant facilities that would occur in its absence.
7. Alternative Regulatory Options
    EPA considered other options for addressing public comments to the
NODAs published on September 20, 2004. Following are summaries of the
changes in compliance costs estimated for each alternative option (for
qualified facilities and qualified oil-filled operational equipment),
as well as EPA's rationale for rejecting the alternative option.
a. Qualified Facilities
    As an alternative option, EPA considered a notification requirement
for qualified facilities that have been operating for less than ten
years, along with eliminating the requirement for PE certification and
providing flexibility for integrity testing and security for all
qualified facilities. EPA estimates that the alternative option could
reduce compliance costs by $22.3 million and $18.4 million per year,
discounted at 3 percent and 7 percent, respectively. To arrive at these
figures, EPA assumed that 50 percent of facilities under 10,000 gallons
would qualify for this option. EPA also assumed that the proposed
flexibility for integrity testing would reduce the unit cost of testing
by 50 percent. EPA assumed that the total burden of notification for a
facility would be three hours: one hour of managerial time, one hour of
technical time, and one hour of clerical time. If 25 percent of
facilities under 10,000 gallons qualified for this option, compliance
costs would decrease by $11.2 million and $9.13 million per year,
discounted at 3 percent and 7 percent, respectively. If 75 percent of
facilities under 10,000 gallons qualified for this option, compliance
costs would be reduced by $33.5 million and $27.4 million per year,
discounted at 3 percent and 7 percent, respectively. EPA decided not to
pursue this option because it does not differ substantively from the
proposed option; an additional notification burden was not considered
necessary.
    As an alternative option, EPA considered establishing three
facility-size tiers according to SBA's recommendations based on
facility's total oil storage capacity (Jack Faucett Associates, 2004).
EPA estimates that this alternative option could reduce compliance
costs by $42.9 million and $35.0 million per year, discounted at 3
percent and 7 percent, respectively. To arrive at these estimates, EPA
assumed that all SPCC-regulated facilities with oil storage capacity
between 1,320 and 5,000 gallons would take advantage of the option,
eliminating the cost of preparing and maintaining a written SPCC Plan.
Additionally, EPA assumed that all SPCC-regulated facilities with oil
storage capacity between 5,001 and 10,000 gallons would take advantage
of

the option and eliminate the cost of PE certification.
    The cost savings associated with the three-tier plans, however,
come at the expense of losses in environmental protection. Although EPA
agrees that a reduction in burden may be appropriate for facilities
handling smaller quantities of oils, smaller facilities still pose
risks to the environment given the nature of the product. Therefore,
some type of Plan or documentation is warranted even for these smaller
facilities. The tiered option also raises significant implementation
issues. For example, certain facilities would require compliance with
the SPCC rule without a written SPCC Plan. EPA believes that a facility
would not be able to properly implement oil spill prevention measures--
including notification, equipment maintenance, inspection and
training--without written documentation to inform the owner or operator
of his/her responsibilities. Additionally, EPA inspectors conducting
on-site visits would have no written Plan or documentation to assess
the facility's effectiveness in implementing their spill prevention
strategy. Even with model plans, owners or operators of larger
facilities may not have the expertise to create their own SPCC Plan
without input from a PE.
    EPA also considered two additional options to provide relief to
qualified facilities: a compliance date extension and a suspension of
all requirements. These options would not have an impact on compliance
costs, but would only delay expenditures at affected facilities. EPA
decided against these options because owners or operators of qualified
facilities would remain uncertain about the timing and type of future
requirements that would apply to them. The preferred option would set
forth explicit requirements for qualified facilities that reduce
compliance costs within the current compliance date schedule. The
extension/suspension options also would pose additional problems
related to implementation and environmental protection.
b. Oil-Filled Equipment
    EPA explored a three-tiered structure option in response to
comments on the Notice of Data Availability (NODA) for oil-filled
operational equipment (69 FR 56184, September 20, 2004). The option is
based on a proposal put forth by the Utility Solid Waste Activities
Group (USWAG). The option would allow an owner or operator to define
discrete units of equipment as individual facilities and reduce
requirements imposed on units with capacities less than 20,000 gallons.
EPA estimates that this alternative option could reduce compliance
costs by $17.6 million and $14.2 million per year, discounted at 3
percent and 7 percent, respectively.
    EPA also considered two administrative options to provide relief to
oil-filled operational equipment: a compliance date extension and a
suspension of all requirements. These options would not have an impact
on compliance costs, but would only delay expenditures at affected
facilities. EPA decided against these options because facility owners
or operators would remain uncertain about the timing and nature of
requirements that eventually would apply to them. Since many facilities
have oil-filled operational equipment, delaying changes to these
requirements could lead to a significant number of facilities needing
to modify their existing Plans more than once to accommodate future
rule changes. A suspension would increase the risk of discharge at
facilities with qualified oil-filled operational equipment during the
interim period, due to the delayed implementation of preventive
measures.
8. Key Limitations of the Analysis
    One of the main limitations of the regulatory analysis is EPA's
lack of data on facilities regulated under the SPCC rule. As mentioned
earlier, the rule does not include (and never included) a notification
requirement and, with certain exceptions, regulated entities do not
need to submit their SPCC Plans to EPA. Without conducting a
statistically valid survey, EPA is limited to data already collected by
state or federal agencies or by proprietary sources. Such data are
collected for diverse purposes and are not necessarily ideal for
evaluating regulatory options, because they often omit portions of the
regulated universe or lack sufficient detail to ascertain the impacts
of changes in certain requirements. The type of information collected
also varies among the different sources. Data provided by industry
organizations or individual businesses are often anecdotal or based on
surveys that are not statistically valid, and cannot be reliably
extrapolated to a larger universe. As a result of this limitation of
data on regulated facilities, EPA has had to rely on updated figures
from 1996 for most industry sectors, as well as federal and proprietary
sources for a small number of other sectors. Because none of these
sources give adequate detail to evaluate the potential impacts of
individual regulatory options, EPA has chosen to examine various
scenarios for each option to bound the range of cost savings that could
occur.
    Approaches to compliance will depend on site-specific
circumstances. For example, compliance costs vary not only on the
volume of oil stored and handled, but also on the types of oil at a
site, the number of tanks (and their volume), and the locations of the
tanks across a site. Given the wide range of industries and facility
sizes affected by the SPCC rule--as well as geographical and climatic
conditions--it is difficult to specify a realistic baseline against
which regulatory changes can be measured. Therefore, it is also
difficult to estimate the changes that could occur under various
regulatory options.
    Finally, many of the cost assumptions used in the regulatory
analysis are based on interviews with a limited number of PEs. It is
very difficult to simply assess ``typical'' costs when the costs of
compliance are closely related to site-specific factors. Ideally,
future analyses could explicitly account for such variability in costs.
9. Conclusions
    Applying both a 3 percent and a 7 percent discount rate, the
proposed regulatory changes could yield compliance cost savings of
$22.5 million and $18.4 million for the ``qualified facility'' option;
$56.7 million and $45.9 million for the ``qualified oil-filled
operational equipment'' option; $0.92 million and $0.75 million for
``motive power'' exemption; and $6.43 million and $5.23 million for
airports with mobile refuelers, respectively. Costs of these components
are not summed, since simple addition would overstate cost savings by
not accounting for interactions between the impacts of the different
components. EPA does not believe that these cost reductions would be
offset by any significant losses in environmental protection.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 0328.12.
    EPA does not collect the information required by SPCC rule on a
routine basis. SPCC Plans ordinarily need not be submitted to EPA, but
must generally be maintained at the facility. Preparation,
implementation, and maintenance of an SPCC Plan by the facility helps
prevent oil discharges, and mitigates the environmental damage caused
by such discharges. Therefore, the primary user

of the data is the facility. While EPA may, from time to time, request
information under these regulations, such requests are not routine.
    Although the facility is the primary data user, EPA also uses the
data in certain situations. EPA reviews SPCC Plans: (1) When it
requests a facility to submit a Plan after certain oil discharges or to
evaluate an extension request; and, (2) as part of EPA's inspection
program. State and local governments also use the data, which are not
necessarily available elsewhere and can greatly assist local emergency
preparedness efforts. Preparation of the information for affected
facilities is required under section 311(j)(1) of the Act as
implemented by 40 CFR part 112.
    In the absence of this proposed rulemaking, EPA estimates that
approximately 618,000 facilities would be subject to the SPCC rule in
2006 and have SPCC Plans. In addition, EPA estimates that approximately
4,520 new facilities would become subject to SPCC requirements
annually. In the absence of this proposed rulemaking, EPA projects that
the average annual public reporting and recordkeeping burden for this
information collection would be 1,980,000 hours.
    Under today's proposed rulemaking, qualified facilities would no
longer need a licensed Professional Engineer to certify their Plans.
Facilities that store oil solely in motive power containers would no
longer be regulated, while other facilities with oil storage in
addition to motive power containers may incur lower compliance costs.
Today's proposal would also allow greater use of contingency plans and
written commitment of manpower, equipment and resources without
requiring an impracticability determination when combined with an
inspection or monitoring program as an alternative to secondary
containment for qualified oil-filled operational equipment. It would
also allow airport mobile refuelers to fall under a facility's general
secondary containment requirements, rather than require specifically
sized secondary containment.
    Under the proposed rule, an estimated 372,000 regulated facilities
would annually be subject to the SPCC information collection
requirements of this rule during the information collection period.
This figure excludes farms with oil storage capacity of 10,000 gallons
or less, to reflect the proposed compliance extension. Under this
proposed rule, the estimated annual average burden over the next 3-year
ICR period would be approximately 1,490,000 hours, resulting in a 25
percent average reduction. The estimated average annual public
reporting for individual facilities already regulated under the SPCC
rule would range between 3.46 and 6.04 hours, while the burden for
newly regulated facilities would range between 37.2 and 64.1 hours as a
result of this proposal. The net annualized capital and start-up costs
for the SPCC information collection portion of the rule would average
$0.32 million and net annualized operation and maintenance (O&M) costs
are estimated to be $26 million for all of these facilities combined.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    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.
    To comment on the Agency's need for this information, the accuracy
of the burden estimates, and any suggested methods for minimizing
respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this rule, which
includes this ICR, under Docket ID number EPA-HQ-OPA-2005-0001. Submit
any comments related to the ICR for this proposed rule to EPA and OMB.
See ADDRESSES section at the beginning of this notice for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after December 12, 2005, a comment to OMB is
best assured of having its full effect if OMB receives it by February
10, 2006. The final rule will respond to any OMB or public comments on
the information collection requirements contained in this proposal.

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 today's proposed rule on small entities, small entity is
defined as: (1) A small business as defined in the SBA's regulations at
13 CFR 121.201--the SBA defines small businesses by category of
business using North American Industry Classification System (NAICS)
codes, and in the case of farms and production facilities, which
constitute a large percentage of the facilities affected by this
proposed rule, generally defines small businesses as having less than
$500,000 in revenues or 500 employees, respectively; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise that is independently owned and operated and is not dominant
in its field.
    After considering the economic impacts of today's proposed rule on
small entities, the Agency certifies that this action would not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.
    This proposed rule would reduce regulatory burden on qualified
facilities and qualified oil-filled operational equipment. Qualified
facilities would

no longer need a licensed Professional Engineer to certify their Plans.
Facilities that store oil solely in motive power containers would no
longer be regulated, while other facilities with oil storage in
addition to motive power containers may incur lower compliance costs.
Today's proposal would also allow greater use of contingency plans and
a written commitment of manpower, equipment and materials without
requiring an impracticability determination as an alternative to
secondary containment for qualified oil-filled operational equipment
when combined with an established and documented inspection or
monitoring program. It would also allow airport mobile refuelers to
fall under a facility's general secondary containment requirements
rather than require specifically sized secondary containment. We have
therefore concluded that today's proposed rule would relieve regulatory
burden for small entities and welcome comments on issues related to
such impacts.
    Overall, EPA estimates that today's proposal would reduce annual
compliance costs by $81 million (net present value) using nominal
dollars and $98 million using annualized values with constant dollars.
Small facilities, in particular, would benefit. For example, EPA
estimates that the proposed rule would lower compliance costs by $22.5
million and $18.4 million at 3 percent and 7 percent discount rate for
facilities with less than 10,000 gallons of oil storage capacity.
    After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements. EPA has determined that
this proposed rule does not contain a Federal mandate that may result
in expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
Today's proposed rule would reduce burden and costs on affected
facilities by approximately $81 million per year (net present value)
using nominal dollars and $98 million per year using annualized values
with constant dollars.
    EPA has determined that this proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As explained above, the effect of the proposed rule would
be to reduce burden and costs for qualified regulated facilities,
including certain small governments that are subject to the rule.

E. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It would
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Under CWA section 311(o), States
may impose additional requirements, including more stringent
requirements, relating to the prevention of oil discharges to navigable
waters. EPA encourages States to supplement the Federal SPCC program
and recognizes that some States have more stringent requirements. 56 FR
54612 (October 22, 1991). This proposed rule would not preempt State
law or regulations. Thus, Executive Order 13132 does not apply to this
proposed rule.

F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments

    On November 6, 2000, the President issued Executive Order 13175 (65
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 took effect on January 6, 2001,
and revokes Executive Order 13084 (Tribal Consultation) as of that
date.
    Today's proposed rule would not significantly or uniquely affect
communities of Indian tribal governments. Therefore, we have not
consulted with a representative organization of tribal groups.

G. Executive Order 13045--Protection of Children From Environmental
Health & Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866; and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. EPA
interprets Executive Order 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This proposed rule is not subject to
Executive Order 13045 because the Agency does not have reason to
believe the environmental health or safety risks

addressed by this action present a disproportionate risk to children.

H. Executive Order 13211--Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards such as materials specifications, test methods,
sampling procedures, and business practices that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
    This proposed rule does not involve technical standards. Therefore,
NTTAA does not apply.

List of Subjects in 40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Petroleum,
Reporting and recordkeeping requirements.

    Dated: December 2, 2005.
Stephen L. Johnson,
Administrator.

    For the reasons stated in the preamble, the Environmental
Protection Agency proposes to amend 40 CFR part 112 as follows:

PART 112--OIL POLLUTION PREVENTION

    1. The authority citation for part 112 continues to read as
follows:

    Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; and E.O.
12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351.

Subpart A [Amended]

    2. Amend Sec.  112.1 by revising paragraph (d)(2)(ii) and adding
paragraph (d)(7) to read as follows:

Sec.  112.1  General applicability.

* * * * *
    (d) * * *
    (2) * * *
    (ii) The aggregate aboveground storage capacity of the facility is
1,320 gallons or less of oil. For the purposes of this exemption, only
containers with a capacity of 55 gallons or greater are counted. The
aggregate aboveground storage capacity of a facility excludes the
capacity of a container that is ``permanently closed,'' or a ``motive
power container'' as defined in Sec.  112.2.
* * * * *
    (7) Any ``motive power container,'' as defined in Sec.  112.2. The
transfer of fuel or other oil into a motive power container at an
otherwise regulated facility is not subject to this exemption.
* * * * *
    3. Amend Sec.  112.2 by adding definitions for ``Airport mobile
refueler'', ``Farm'', ``Motive power container'', and ``Oil-filled
operational equipment'' in alphabetical order to read as follows:

Sec.  112.2  Definitions.

* * * * *
    Airport mobile refueler means a vehicle with an onboard bulk
storage container designed, or used to store and transport fuel for
transfer into or from aircraft or ground service equipment.
* * * * *
    Farm means a facility on a tract of land devoted to the production
of crops or raising of animals, including fish, which produced and
sold, or normally would have produced and sold, $1,000 or more of
agricultural products during a year.
* * * * *
    Motive power container means any onboard bulk storage containers
used solely to power the movement of a motor vehicle, or ancillary
onboard oil-filled operational equipment used solely to facilitate its
operation. An onboard bulk storage container which is used to store or
transfer oil for further distribution is not a motive power container.
The definition of motive power equipment does not include oil drilling
or workover equipment, including rigs.
* * * * *
    Oil-filled operational equipment means equipment which includes an
oil storage container (or multiple containers) in which the oil is
present solely to support the function of the apparatus or the device.
Oil-filled operational equipment is not considered a bulk storage
container, and does not include oil-filled manufacturing equipment
(flow-through process).
* * * * *
    4. Amend Sec.  112.3 by designating the existing text of paragraph
(a) as (a)(1) and adding (a)(2), designating the existing text of
paragraph (b) as (b)(1) and adding (b)(2), revising the introductory
text of paragraph (d), and adding paragraph (g) to read as follows:

Sec.  112.3  Requirement to prepare and implement a Spill Prevention,
Control, and Countermeasure Plan.

* * * * *
    (a)(1) * * *
    (2) If your farm has a total oil storage capacity of 10,000 gallons
or less, the compliance dates described in paragraph (a)(1) of this
section are delayed indefinitely or until the Agency publishes a final
rule in the Federal Register establishing a new compliance date.
    (b)(1) * * *
    (2) If your farm has a total oil storage capacity of 10,000 gallons
or less, the compliance dates described in paragraph (b)(1) of this
section are delayed indefinitely or until the Agency publishes a final
rule in the Federal Register establishing a new compliance date.
* * * * *
    (d) Except as provided in paragraph (g) of this section, a licensed
Professional Engineer must review and certify a Plan for it to be
effective to satisfy the requirements of this part.
* * * * *
    (g) Qualified Facilities. The owner or operator of a facility that
meets the qualification criteria in paragraph (g)(1) of this section
may choose to self-certify the facility's SPCC Plan and any technical
amendments to the Plan in lieu of certification by a licensed
Professional Engineer.
    (1) Qualification Criteria. A facility is qualified for owner or
operator self-certification of its SPCC Plan if it meets the following
criteria:
    (i) The aggregate aboveground storage capacity of the facility, as
determined according to Sec.  112.1, is 10,000 gallons or less; and
    (ii) The facility either:
    (A) Has been in operation for at least ten years immediately prior
to the date of self-certification and in the ten-year period
immediately prior to self-certification had no discharges as described
in Sec.  112.1(b); or
    (B) Is beginning operations or has been in operation for fewer than
ten years without any discharges of oil as described in Sec.  112.1(b).
    (2) Self-Certification. If you are the owner or operator of a
qualified facility

and you choose to self-certify your Plan or technical amendments to
your Plan, you must certify in the Plan that:
    (i) You are familiar with the requirements of this part;
    (ii) You or your agent have visited and examined the facility;
    (iii) The Plan has been prepared in accordance with accepted and
sound industry practices and standards, and with the requirements of
this part;
    (iv) Procedures for required inspections and testing have been
established;
    (v) The Plan is being fully implemented;
    (vi) The facility meets the qualification criteria set forth under
Sec.  112.3(g)(1);
    (vii) The Plan does not utilize the environmental equivalence and
impracticability provisions under Sec.  112.7(a)(2) and 112.7(d),
except as described in paragraph (g)(3) of this section; and
    (viii) The Plan and individual(s) responsible for implementing the
Plan have the full approval of management and the facility has
committed the necessary resources to fully implement the Plan.
    (3) Self-Certified Plan Exceptions. Except as provided in this
subparagraph, a self-certified SPCC Plan must comply with Sec.  112.7
and the applicable requirements in subparts B and C of this part:
    (i) Environmental Equivalence. The Plan may not include alternate
methods to the applicable requirements listed in Sec.  112.7(a)(2).
    (ii) Impracticability. The Plan may not include any
impracticability determinations as described under Sec.  112.7(d).
    (iii) Security (excluding oil production facilities). The owner or
operator must choose to either:
    (A) Comply with the requirements under Sec.  112.7(g); or
    (B) Prepare a security plan that describes how the facility
controls access to the oil handling, processing and storage areas;
secures master flow and drain valves; prevents unauthorized access to
starter controls on oil pumps; secures out-of-service and loading/
unloading connections of oil pipelines; addresses the appropriateness
of security lighting to both prevent acts of vandalism and assist in
the discovery of oil discharges.
    (iv) Bulk Storage Container Inspections. In lieu of the
requirements in Sec. Sec.  112.8(c)(6) and 112.12(c)(6), an owner/
operator must test/inspect each aboveground container for integrity on
a regular schedule and whenever material repairs are made. The owner or
operator must determine, in accordance with industry standards, the
appropriate inspector/testing personnel qualifications, the frequency
and type of testing/inspections which take into account container size,
configuration, and design (such as containers that are: equipped with a
floating roof, shop built, field erected, skid-mounted, elevated,
equipped with a liner, double walled, or partially buried). Examples of
these integrity tests include, but are not limited to: visual
inspection, hydrostatic testing, radiographic testing, ultrasonic
testing, acoustic emissions testing, or other systems of non-
destructive testing. You must keep comparison records and you must also
inspect the container's supports and foundations. In addition, you must
frequently inspect the outside of the container for signs of
deterioration, discharges, or accumulation of oil inside diked areas.
Records of inspections and tests kept under usual and customary
business practices satisfy the recordkeeping requirements of this
paragraph.
    5. Amend Sec.  112.5 by revising paragraph (c) to read as follows:

Sec.  112.5  Amendment of Spill Prevention, Control, and Countermeasure
Plan by owners or operators.

* * * * *
    (c) Except as provided in Sec.  112.3(g), have a Professional
Engineer certify any technical amendments to your Plan in accordance
with Sec.  112.3(d).
    6. Amend Sec.  112.7 by revising paragraph (a)(2), (c) introductory
text, (d) introductory text, and adding paragraph (k) to read as
follows:

Sec.  112.7  General requirements for Spill Prevention, Control, and
Countermeasure Plans.

* * * * *
    (a) * * *
    (2) Comply with all applicable requirements listed in this part.
Except as provided in Sec.  112.3(g), your Plan may deviate from the
requirements in paragraphs (g), (h)(2) and (3), and (i) of this section
and the requirements in subparts B and C of this part, except the
secondary containment requirements in paragraphs (c) and (h)(1) of this
section, and Sec. Sec.  112.8(c)(2), 112.8(c)(11), 112.9(c)(2),
112.10(c), 112.12(c)(2), and 112.12(c)(11), where applicable to a
specific facility, if you provide equivalent environmental protection
by some other means of spill prevention, control, or countermeasure.
Where your Plan does not conform to the applicable requirements in
paragraphs (g), (h)(2) and (3), and (i) of this section, or the
requirements of subparts B and C of this part, except the secondary
containment requirements in paragraph (c) and (h)(1) of this section,
and Sec. Sec.  112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 112.10(c),
112.12(c)(2), and 112.12(c)(11), you must state the reasons for
nonconformance in your Plan and describe in detail alternate methods
and how you will achieve equivalent environmental protection. If the
Regional Administrator determines that the measures described in your
Plan do not provide equivalent environmental protection, he may require
that you amend your Plan, following the procedures in Sec.  112.4(d)
and (e).
* * * * *
    (c) Provide appropriate containment and/or diversionary structures
or equipment to prevent a discharge as described in Sec.  112.1(b),
except as provided in paragraph (k) of this section for qualified oil-
filled operational equipment. The entire containment system, including
walls and floor, must be capable of containing oil and must be
constructed so that any discharge from a primary containment system,
such as a tank or pipe, will not escape the containment system before
cleanup occurs. At a minimum, you must use one of the following
prevention systems or its equivalent:
* * * * *
    (d) Provided your Plan is certified by a licensed Professional
Engineer under Sec.  112.3(d), if you determine that the installation
of any of the structures or pieces of equipment listed in paragraphs
(c) and (h)(1) of this section, and Sec. Sec.  112.8(c)(2),
112.8(c)(11), 112.9(c)(2), 112.10(c), 112.12(c)(2) and 112.12(c)(11) to
prevent a discharge as described in Sec.  112.1(b) from any onshore or
offshore facility is not practicable, you must clearly explain in your
Plan why such measures are not practicable; for bulk storage
containers, conduct both periodic integrity testing of the containers
and periodic integrity and leak testing of the valves and piping; and,
unless you have submitted a response plan under Sec.  112.20, provide
in your Plan the following:
* * * * *
    (k) Qualified Oil-Filled Operational Equipment. The owner or
operator of a facility with oil-filled operational equipment that meets
the qualification criteria in paragraph (k)(1) of this section may
choose to implement for this qualified oil-filled operational equipment
the alternate requirements as described in paragraph (k)(2) of this
section in lieu of applying the general secondary containment
requirements of paragraph (c) of this section.
    (1) Qualification Criteria--Reportable Discharge History: The
facility where

the oil-filled operational equipment is located either:
    (i) Has been in operation for at least ten years immediately prior
to the date of Plan certification and in the ten-year period
immediately prior to the Plan certification date had no discharges as
described in Sec.  112.1(b) from any oil-filled operational equipment,
or
    (ii) Is beginning operations or has been in operation for fewer
than ten years without any discharges as described in Sec.  112.1(b)
from any oil-filled operational equipment;
    (2) Alternative Requirements to General Secondary Containment. The
owner or operator of a facility with qualified oil-filled operational
equipment must:
    (i) Establish and document the facility procedures for inspections
or a monitoring program to detect equipment failure and/or a discharge;
and
    (ii) Unless you have submitted a response plan under Sec.  112.20,
provide in your Plan the following:
    (A) An oil spill contingency plan following the provisions of part
109 of this chapter.
    (B) A written commitment of manpower, equipment, and materials
required to expeditiously control and remove any quantity of oil
discharged that may be harmful.

Subpart B--[Amended]

    7. Amend Sec.  112.8 by revising paragraphs (c)(2) and (c)(11) to
read as follows:

Sec.  112.8  Spill Prevention, Control, and Countermeasure Plan
requirements for onshore facilities (excluding production facilities).

* * * * *
    (c) * * *
    (2) Construct all bulk storage tank installations (except airport
mobile refuelers) so that you provide a secondary means of containment
for the entire capacity of the largest single container and sufficient
freeboard to contain precipitation. You must ensure that diked areas
are sufficiently impervious to contain discharged oil. Dikes,
containment curbs, and pits are commonly employed for this purpose. You
may also use an alternative system consisting of a drainage trench
enclosure that must be arranged so that any discharge will terminate
and be safely confined in a facility catchment basin or holding pond.
* * * * *
    (11) Position or locate mobile or portable oil storage containers
to prevent a discharge as described in Sec.  112.1(b). Except in the
cases of airport mobile refuelers, you must furnish a secondary means
of containment, such as a dike or catchment basin, sufficient to
contain the capacity of the largest single compartment or container
with sufficient freeboard to contain precipitation.
* * * * *

Subpart C--[Amended]

Sec.  112.12  Specific Spill Prevention, Control, and Countermeasure
Plan requirements.

    8. Amend Sec.  112.12 by revising the section heading to read as
set forth above.

Sec.  112.13  [Removed and Reserved]

    9. Remove and reserve Sec.  112.13.

Sec.  112.14  [Removed and Reserved]

    10. Remove and reserve Sec.  112.14.

Sec.  112.15  [Removed and Reserved]

    11. Remove and reserve Sec.  112.15.

[FR Doc. 05-23917 Filed 12-9-05; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 11 (Tuesday, January 18, 2022)]
[Notices]
[Pages 2606-2607]
[FR Doc No: 2022-00815]

-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12740-008]

Jordan Hydroelectric Limited Partnership; Notice of Availability
of Supplemental Environmental Assessment

    In accordance with the National Environmental Policy Act of 1969
and the Federal Energy Regulatory Commission's (Commission or FERC)
regulations, 18 Code of Federal Regulations (CFR) part 380, Commission
staff prepared a Supplemental Environmental Assessment (Supplemental
EA), to supplement its Final Environmental Assessment (Final EA),
issued November 10, 2011. On March 10, 2021, Jordan Hydroelectric
Limited Partnership (licensee), filed with the Commission an
application to amend its license for the Flannagan Hydroelectric
Project No. 12740 based on the proposed changes to the design of the
project. The unconstructed project is located at the U.S. Army Corps of
Engineers' John W. Flannagan Dam and Reservoir, which is on the Pound
River, near the Town of Clintwood, in Dickenson County, Virginia.
    The Supplemental EA was prepared to address changes that have
occurred since the issuance of the Final EA and contains Commission
staff's analysis of the potential environmental effects of the proposed
amendment. Based on staff's independent analysis in the Supplemental
EA, Commission approval of the licensee's proposal would not constitute
a major federal action significantly affecting the quality of the human
environment.
    The supplemental EA may be viewed on the Commission's website at
http://www.ferc.gov using the ``elibrary'' link. Enter the docket
number (P-12740) in the docket number field to access the document. At
this time, the Commission has suspended access to the Commission's
Public Reference Room, due to the proclamation declaring a National
Emergency concerning the Novel Coronavirus Disease (COVID-19), issued
by the President on March 13,

2020. For assistance, contact FERC Online Support at
[email protected] or toll-free at 1-866-208-3372, or for TTY,
(202) 502-8659.
    For further information, contact Marybeth Gay at<PHONE_NUMBER> or
[email protected].

    Dated: January 11, 2022.
Kimberly D. Bose,
Secretary.
[FR Doc. 2022-00815 Filed 1-14-22; 8:45 am]
BILLING CODE 6717-01-P