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PA Bulletin, Doc. No. 03-2451




[25 PA. CODE CH. 977]

Owner and Operator Fees

[33 Pa.B. 6418]

   The Insurance Department (Department) and the Underground Storage Tank Indemnification Board (Board) amend § 977.12 (relating to owner and operator fees) to read as set forth in Annex A. Sections 206, 506, 1501 and 1502 of The Administrative Code of 1929 (71 P. S. §§ 66, 186, 411 and 412) provide the Insurance Commissioner with the authority to promulgate regulations governing the enforcement of the laws relating to insurance. Section 705 of the Storage Tank and Spill Prevention Act (35 P. S. § 6021.705) provides the Board with the authority to promulgate regulations concerning the establishment of fees to be paid by participants in the Underground Storage Tank Indemnification Fund (Fund). Public notice of this amendment is impractical and unnecessary because the proposed changes are needed to ensure the solvency of the Fund and any input from the public would not decrease the necessity to increase the fees collected.

   Notice of proposed rulemaking is omitted in accordance with section 204(3) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(3)) (CDL). In accordance with section 204(3) of the CDL, notice of proposed rulemaking may be omitted when the agency for good cause finds that public notice of its intention to amend an administrative regulation is, under the circumstances, impracticable and unnecessary.


   This final-omitted rulemaking will bring the fees to the appropriate levels as recommended by an actuarial report that was completed on September 25, 2003. After reviewing this report, the Board determined that this increase is necessary to maintain the solvency of the Fund for the public health and safety of this Commonwealth's citizens and their environment. The actuarial study, performed by Milliman USA, determined that an increase in the gallon and capacity fees was necessary to maintain the actuarial soundness of the Fund in the future.

Explanation of Regulatory Requirements

   Section 977.12 is being amended to reflect the fees that the Board approved after extensive review and discussion of the report.

Fiscal Impact

   An owner or operator transacting business in this Commonwealth will be affected by this final-omitted rulemaking. The fee increases approved by the Board are not significant, however, because despite these increases, the fees are only slightly higher than half as much of what they were when the program began in 1994.

   The local municipalities will see an increase of approximately $15.54 per quarter or $62.17 per year ($137,700 divided by 2,215 municipalities, including school districts). State-owned tanks are exempt from all Fund fees.

General Public

   Because the public is a consumer of goods and services provided by owners and operators of an underground storage tank (UST) or a heating oil tank (HOT), any increase to the fees could result in higher prices to consumers. However, it is expected that this increase in fees will result in an additional $.08 per month to motorists, in accordance with a survey on vehicle fuel consumption and expenditures by United States' households, conducted by the Energy Information Administration, Office of Energy Markets and End Use.

   This increase is proposed to keep the Fund solvent after an actuarial study completed in September 2003 indicated the need for additional revenue, to maintain the Fund's actuarial soundness.

Effectiveness/Sunset Date

   This final-omitted rulemaking will become effective January 1, 2004.


   Adoption of this final-omitted rulemaking should not require any significant paperwork for the owners or operators of USTs or HOTs. The paperwork necessary after the increase is expected to be the same as before the increase was implemented.

Persons Regulated

   This final-omitted rulemaking applies to all owners or operators of USTs and HOTs in this Commonwealth.

Contact Person

   Questions regarding the final-omitted rulemaking may be addressed to Peter J. Salvatore, Regulatory Coordinator, Insurance Department, 1326 Strawberry Square, Harrisburg, PA 17120, (717) 787-4429. Questions may also be e-mailed to or faxed to (717) 772-1969.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 14, 2003, the agency submitted a copy of the amendment with the proposed rulemaking omitted to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Insurance and the Senate Committee on Banking and Insurance. On the same date, the amendment was submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506).

   In accordance with section 5(c) of the Regulatory Review Act, the amendment was deemed approved by the Senate Banking and Insurance Committee on December 17, 2003, and deemed approved by the House Insurance Committee on December 17, 2003. The Attorney General approved the regulation on December 10, 2003. IRRC met on December 18, 2003 and approved the amendment.


   The Insurance Commissioner finds that:

   (1)  There is good cause to amend § 977.12 effective upon publication with the proposed rulemaking omitted. Deferral of the effective date of this final-omitted rulemaking would be impractical and not serve the public interest. Under section 204(3) of the CDL, there is no purpose to be served by deferring the effective date. An effective date of January 1, 2004, will best serve the public interest by ensuring that fees have the full potential that the actuarial study predicted.

   (2)  There is good cause to forego public notice of the intention to amend Chapter 977, Subchapter B (relating to fees and collection procedures), because notice of the amendment under the circumstances is unnecessary and impractical because the changes proposed are necessary to ensure the solvency of the Fund and any input from the public would not decrease the necessity to increase the fees collected.


   The Insurance Commissioner, acting under the authority in sections 206, 506, 1501 and 1502 of The Administrative Code of 1929, orders that:

   (a)  The regulations of the Department, 25 Pa. Code Chapter 977, are amended by amending § 977.12 to read as set forth in Annex A.

   (b)  The Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as to form and legality as required by law.

   (c)  The Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect January 1, 2004.

Insurance Commissioner

Underground Storage Tank Indemnification Board

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 33 Pa.B.            (December 27, 2003).)

   Fiscal Note: 11-219. (2)  Implementing Year 2003-04 is $68,850; (3)  1st Succeeding Year 2004-05 is $137,700; 2nd Succeeding Year 2005-06 is $140,454; 3rd Succeeding Year 2006-07 is $143,263; 4th Succeeding Year 2007-08 is $146,128; 5th Succeeding Year 2008-09 is $149,051; (4)  2002-03 Program--$69,466,774; 2001-02 Program--$65,921,722; 2000-01 Program--$49,971,701; (8) recommends adoption. The costs outlined are aggregate costs for municipalities, including school districts, with storage tanks. The gallon and capacity fee increases were recommended by an actuarial report. The increases should be considered a minimum step and assumes a continued unfunded liability.

Annex A





§ 977.12.  Owner and operator fees.

   (a)  Annual fees. The Board may charge fees established in this section, based on an annual actuarial review.

   (b)  Tank and gallon fees. A UST owner or operator storing gasoline, new motor oil, hazardous substances, gasohol, aviation fuel, mixture, farm diesel and other types of substances based on the tank registration information maintained by the DEP may be assessed the following fees:

   (1)  Tank fee. A tank fee of $0 per UST per year.

   (2)  Gallon fee. A gallon fee on all regulated substances entering a UST of $.011 per gallon. (For example, 10,000 gallons at $.011 per gallon equals $110).

   (c)  Nonretail bulk storage. Total fees paid by an owner or operator of a nonretail bulk storage or wholesale distribution UST storing gasoline are established using the method described in subsection (b) and are capped at $5,000 per UST per year in accordance with section 705(d)(3) of the act (35 P. S. § 6021.705(d)(3)).

   (d)  Capacity fee. An owner or operator which stores regulated substances including diesel, heating oil, used motor oil, kerosene and unknown substances based on the tank registration information maintained by the DEP may be assessed a capacity fee of $.0825 per gallon of capacity, which amount is established in accordance with section 705(d)(2) of the act (35 P. S. § 6021.705(d)(2)).(For example, 10,000 gallons at $.0825 per gallon equals $825).

[Pa.B. Doc. No. 03-2451. Filed for public inspection December 26, 2003, 9:00 a.m.]

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