Change to the Reporting Date for Certain Data Elements Required Under the Mandatory Reporting of Greenhouse Gases Rule, 81350-81363 [2010-32447]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Proposed Rules]
[Pages 81350-81363]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32447]



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Part III





Environmental Protection Agency





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40 CFR Part 98



Change to the Reporting Date for Certain Data Elements Required Under 
the Mandatory Reporting of Greenhouse Gases Rule; Proposed Rule

Federal Register / Vol. 75 , No. 247 / Monday, December 27, 2010 / 
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 98

[EPA-HQ-OAR-2010-0929 FRL-9242-6]


Change to the Reporting Date for Certain Data Elements Required 
Under the Mandatory Reporting of Greenhouse Gases Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to defer the reporting date of certain data 
elements that are inputs to emission equations under the Mandatory 
Greenhouse Gas Reporting Rule for three years. In response to EPA's 
July 7, 2010 proposed confidentiality determinations for data required 
under the reporting rule, EPA received several comments raising 
concerns that warrant further consideration before EPA issues final 
confidentiality determinations for data elements that are inputs to 
emission equations for direct emitters. To allow time for EPA to 
consider these comments and other information concerning these data 
elements before they are reported to EPA, when they may become publicly 
available, EPA is proposing to defer direct emitter reporting of inputs 
to emission equations for calendar years through 2012 until March 31, 
2014. This proposal would not change any other requirements of the 
reporting rule.

DATES: Comments. Comments must be received on or before January 26, 
2011 unless a public hearing is requested by January 6, 2011. If a 
hearing is requested on this proposed rule, written comments must be 
received by February 10, 2011.
    Public Hearing. To request a hearing, please contact the person 
listed in the following FOR FURTHER INFORMATION CONTACT section by 
January 6, 2011. Upon such request, the hearing will be conducted on 
January 11, 2011, in the Washington, DC area. If a hearing is 
requested, EPA will provide further information about the hearing on 
its Web page: https://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

ADDRESSES: You may submit your comments, identified by Docket ID No. 
EPA-HQ-OAR-2010-0929, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     E-mail: GHGReportingCBI@epa.gov. Include Docket ID No. 
EPA-HQ-OAR-2010-0929 (and/or RIN number) in the subject line of the 
message.
     Fax: (202) 566-1741.
     Mail: Environmental Protection Agency, EPA Docket Center 
(EPA/DC), Mailcode 2822T, Attention Docket ID No. OAR-2010-0929, 1200 
Pennsylvania Avenue, NW., Washington, DC 20004.
     Hand/Courier Delivery: EPA Docket Center, Public Reading 
Room, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., 
Washington, DC 20004. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0929. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means that EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an e-mail comment directly to EPA without 
going through https://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters or any form of encryption and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the Air Docket, EPA/
DC, EPA West Building, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate Change Division, 
Office of Atmospheric Programs (MC-6207J), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 343-9263; fax number: (202) 343-2342; e-mail address: 
GHGReportingCBI@epa.gov.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic pre-publication copy of this proposal will also be 
available through the WWW. Following the Administrator's signature, a 
copy of this action will be posted on EPA's greenhouse gas reporting 
rule Web site at https://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

SUPPLEMENTARY INFORMATION: Acronyms and Abbreviations. The following 
acronyms and abbreviations are used in this document.

CAA Clean Air Act
CBI confidential business information
CEMS continuous emission monitoring system(s)
CFR Code of Federal Regulations
EPA U.S. Environmental Protection Agency
FR Federal Register
GHG greenhouse gas
NTTAA National Technology Transfer and Advancement Act of 1995
RFA Regulatory Flexibility Act
UMRA Unfunded Mandates Reform Act
U.S. United States
WWW Worldwide Web

    Organization of this Document. The following outline is provided to 
aid in locating information in this preamble.

I. Background
II. Summary of the Proposed Amendment and Request for Comments
    A. Facilities Affected
    B. Proposed Amendment
    C. Request for Comments
III. Rationale for the Proposed Amendment
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments

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    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

    Does this action apply to me? The Administrator determined that 
this action is subject to the provisions of Clean Air Act (CAA) section 
307(d). See CAA section 307(d)(1)(V) (the provisions of CAA section 
307(d) apply to ``such other actions as the Administrator may 
determine''). This action would amend existing regulations. Entities 
affected by this proposed action are owners or operators of facilities 
that are direct emitters of greenhouse gases (GHGs) and are required to 
report under the Mandatory GHG Reporting Rule (40 CFR part 98), which 
include those listed in Table 1 of this preamble:

                               Table 1--Examples of Affected Entities by Category
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                  Category                           NAICS                Examples of affected facilities
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General Stationary Fuel Combustion Sources..  ..................  Facilities operating boilers, process heaters,
                                                                   incinerators, turbines, and internal
                                                                   combustion engines:
                                                             321     Manufacturers of lumber and wood products.
                                                             322     Pulp and paper mills.
                                                             325     Chemical manufacturers.
                                                             324     Petroleum refineries, and manufacturers of
                                                                      coal products.
                                                   316, 326, 339     Manufacturers of rubber and miscellaneous
                                                                      plastic products.
                                                             331     Steel works, blast furnaces.
                                                             332     Electroplating, plating, polishing,
                                                                      anodizing, and coloring.
                                                             336     Manufacturers of motor vehicle parts and
                                                                      accessories.
                                                             221     Electric, gas, and sanitary services.
                                                             622     Health services.
                                                             611     Educational services.
                                                          325193     Ethyl alcohol manufacturing facilities.
                                                          311611     Meat processing facilities.
                                                          311411     Frozen fruit, juice, and vegetable
                                                                      manufacturing facilities.
                                                          311421     Fruit and vegetable canning facilities.
Electricity Generation......................              221112  Fossil-fuel fired electric generating units,
                                                                   including units owned by Federal and
                                                                   municipal governments and units located in
                                                                   Indian Country.
Adipic Acid Production......................              325199  Adipic acid manufacturing facilities.
Aluminum Production.........................              331312  Primary Aluminum production facilities.
Ammonia Manufacturing.......................              325311  Anhydrous and aqueous ammonia manufacturing
                                                                   facilities.
Cement Production...........................              327310  Portland Cement manufacturing plants.
Electronics Manufacturing...................              334111  Microcomputers manufacturing facilities.
                                                          334413  Semiconductor, photovoltaic (solid-state)
                                                                   device manufacturing facilities.
                                                          334419  LCD unit screens manufacturing facilities.
                                              ..................  MEMS manufacturing facilities.
Ferroalloy Production.......................              331112  Ferroalloys manufacturing facilities.
Fluorinated GHG Production..................              325120  Industrial gases manufacturing facilities.
Glass Production............................              327211  Flat glass manufacturing facilities.
                                                          327213  Glass container manufacturing facilities.
                                                          327212  Other pressed and blown glass and glassware
                                                                   manufacturing facilities.
HCFC-22 Production and HFC-23 Destruction...              325120  Chlorodifluoromethane manufacturing
                                                                   facilities.
Hydrogen Production.........................              325120  Hydrogen manufacturing facilities.
Iron and Steel Production...................              331111  Integrated iron and steel mills, steel
                                                                   companies, sinter plants, blast furnaces,
                                                                   basic oxygen process furnace shops.
Lead Production.............................              331419  Primary lead smelting and refining facilities.
                                                          331492  Secondary lead smelting and refining
                                                                   facilities.
Lime Production.............................              327410  Calcium oxide, calcium hydroxide, dolomitic
                                                                   hydrates manufacturing facilities.
Magnesium Production........................              331419  Primary refiners of nonferrous metals by
                                                                   electrolytic methods.
                                                          331492  Secondary magnesium processing plants.
Municipal Solid Waste Landfills.............              562212  Solid waste landfills.
                                                          221320  Sewage treatment facilities.
Nitric Acid Production......................              325311  Nitric acid manufacturing facilities.
Petroleum and Natural Gas Systems...........              486210  Pipeline transportation of natural gas.
                                                          221210  Natural gas distribution facilities.
                                                             211  Extractors of crude petroleum and natural gas.
                                                          211112  Natural gas liquid extraction facilities.
Petrochemical Production....................               32511  Ethylene dichloride manufacturing facilities.
                                                          325199  Acrylonitrile, ethylene oxide, methanol
                                                                   manufacturing facilities.
                                                          325110  Ethylene manufacturing facilities.
                                                          325182  Carbon black manufacturing facilities.
Petroleum Refineries........................              324110  Petroleum refineries.
Phosphoric Acid Production..................              325312  Phosphoric acid manufacturing facilities.
Pulp and Paper Manufacturing................              322110  Pulp mills.
                                                          322121  Paper mills.
                                                          322130  Paperboard mills.
Silicon Carbide Production..................              327910  Silicon carbide abrasives manufacturing
                                                                   facilities.
Soda Ash Manufacturing......................              325181  Alkalies and chlorine manufacturing
                                                                   facilities.

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                                                          212391  Soda ash, natural, mining and/or
                                                                   beneficiation.
Sulfur Hexafluoride (SF6) from Electrical                 221121  Electric bulk power transmission and control
 Equipment.                                                        facilities.
Titanium Dioxide Production.................              325188  Titanium dioxide manufacturing facilities.
Underground Coal Mines......................              212113  Underground anthracite coal mining operations.
                                                          212112  Underground bituminous coal mining operations.
Zinc Production.............................              331419  Primary zinc refining facilities.
                                                          331492  Zinc dust reclaiming facilities, recovering
                                                                   from scrap and/or alloying purchased metals.
Industrial Landfills........................              562212  Solid waste landfills.
                                                          221320  Sewage treatment facilities.
                                                          322110  Pulp mills.
                                                          322121  Paper mills.
                                                          322122  Newsprint mills.
                                                          322130  Paperboard mills.
                                                          311611  Meat processing facilities.
                                                          311411  Frozen fruit, juice, and vegetable
                                                                   manufacturing facilities.
                                                          311421  Fruit and vegetable canning facilities.
Wastewater Treatment........................              322110  Pulp mills.
                                                          322121  Paper mills.
                                                          322122  Newsprint mills.
                                                          322130  Paperboard mills.
                                                          311611  Meat processing facilities.
                                                          311411  Frozen fruit, juice, and vegetable
                                                                   manufacturing facilities.
                                                          311421  Fruit and vegetable canning facilities.
                                                          325193  Ethanol manufacturing facilities.
CO2 Enhanced Recovery Projects..............                 211  Oil and Gas Extraction Projects using CO2
                                                                   Enhanced Recovery.
Geologic Sequestration Sites................                 N/A  CO2 geologic sequestration projects.
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    Table 1 of this preamble is not intended to be exhaustive but to 
provide a guide for readers regarding facilities likely to be affected 
by this action. Types of facilities other than those listed in the 
table could also be subject to reporting requirements. To determine 
whether you are affected by this action, you should carefully examine 
the applicability criteria found in 40 CFR part 98, subpart A or the 
relevant criteria in subparts C though JJ \1\ and RR, SS, and TT. If 
you have questions regarding the applicability of this action to a 
particular facility, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT Section.
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    \1\ EPA will not be implementing 40 CFR part 98, subpart JJ due 
to a Congressional restriction prohibiting the expenditure of funds 
for this purpose. As a result, 40 CFR part 98, subpart JJ is not 
included in the scope of this notice.
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I. Background

    On October 30, 2009, EPA published the Mandatory GHG Reporting Rule 
for collecting information regarding GHGs from a broad range of 
industry sectors (74 FR 56260). Under 40 CFR part 98 of the GHG 
Reporting Rule (hereinafter referred to as ``Part 98'') and its 
subsequent amendments, EPA will collect data from certain facilities 
and suppliers above specified thresholds. The data to be reported 
consists of GHG emissions information as well as other data, including 
information necessary to characterize, quantify, and verify the 
reported emissions. In the preamble to Part 98, we stated, ``Through a 
notice and comment process, we will establish those data elements that 
are `emissions data' and therefore [under CAA section 114(c)] will not 
be afforded the protections of CBI. As part of that exercise, in 
response to requests provided in comments, we may identify classes of 
information that are not emissions data, and are CBI.'' (74 FR 56287, 
October 30, 2009).
    On July 7, 2010, EPA proposed confidentiality determinations for 
Part 98 data elements and proposed amending EPA's regulation for 
handling confidential business information to add specific procedures 
for the treatment of Part 98 data (75 FR 39094; hereinafter referred to 
as the ``July 7, 2010 CBI proposal''). The July 7, 2010 CBI proposal 
proposed confidentiality statuses for the data elements for subparts 
included in the 2009 final Part 98 rule (see 74 FR 56260, October 30, 
2009), four subparts finalized in July 2010 (see 75 FR 39736, July 12, 
2010), and seven new subparts that had been proposed but not yet 
finalized as of July 2010 (see 75 FR 18576, 75 FR 18608, and 75 FR 
18652, April 12, 2010). The July 7, 2010 CBI proposal also covered 
proposed changes to the reporting requirements for some of the 2009 
final Part 98 subparts. These changes were proposed in two separate 
rulemakings (see 75 FR 18455, April, 12, 2010; and 75 FR 33950, June 
15, 2010).
    On August 11, 2010, EPA published a proposed amendment to Part 98 
to change the description of some reported data elements and require 
reporting of some new data elements (75 FR 48744; hereinafter referred 
to as the ``August 11, 2010 revisions proposal''). EPA concurrently 
issued a supplemental CBI proposal that proposed confidentiality 
determinations for the new and revised data elements included in the 
August 11, 2010 revisions notice (75 FR 43889, July 27, 2010; 
hereinafter referred to as the ``July 27, 2010 supplemental CBI 
proposal'').
    As described in detail in the CBI proposals identified above, EPA 
grouped Part 98 data into 22 data categories (11 direct emitter data 
categories and 11 supplier data categories), with each of the 
categories containing data elements that are similar in type or 
characteristics. EPA then proposed confidentiality determinations for 
each category, with a few exceptions that are not relevant to today's 
proposed action. Consistent with EPA's long-standing interpretation, 
EPA proposed that data elements in the inputs to emission equations 
data category meet the definition of emission data under 40 CFR 
2.301(a)(2)(i) and therefore, under CAA section 114(c), could not be 
held as confidential once they were reported to EPA.

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    EPA received numerous public comments on the July 7, 2010 CBI 
proposal and the July 27, 2010 supplemental CBI proposal. Though we are 
still in the process of considering these comments, we plan to complete 
our consideration of these comments and issue final confidentiality 
determinations for the Part 98 data elements that are not inputs to 
emission equations, which constitute approximately 75 percent of the 
data elements, in a separate final action. However, as explained in 
more detail in Section III of this preamble, EPA received comments that 
raise concerns regarding the public availability of data in the inputs 
to emission equations category. EPA has determined that these concerns 
warrant in-depth evaluation of the potential impact from the release of 
inputs to emission equations, as well as collection and review of 
additional information, that cannot be completed before the March 31, 
2011 reporting deadline. EPA is therefore proposing to defer the 
reporting of inputs to equations to afford EPA additional time to 
complete this evaluation and take appropriate final actions regarding 
inputs to equations before these data elements are reported to EPA and 
potentially become subject to release.
    Concurrent with this proposal, EPA has promulgated an interim final 
rule that defers the initial March 31, 2011 reporting date for inputs 
to emission equations to August 31, 2011 to give EPA time to promulgate 
this deferral through notice and comment. (See Section III of the 
preamble to the interim final rule for further justification.) EPA is 
also concurrently publishing a call for information, entitled 
``Information on Inputs to Emission Equations under the Mandatory 
Reporting of Greenhouse Gases Rule,'' to collect additional information 
that will assist EPA with the evaluation described above. Further 
information regarding that notice is found in Section II of this 
preamble.

II. Summary of the Proposed Amendment and Request for Comments

A. Facilities Affected

    This proposed action would affect only facilities that directly 
emit GHGs and are subject to Part 98. It would not affect suppliers of 
fuels or industrial gases. Specifically, the amendment would apply to 
facilities that are subject to the source category-specific reporting 
requirements in 40 CFR part 98, subparts C through JJ \2\ and subparts 
RR,\3\ SS, and TT, including any subparts that EPA finalizes in future 
actions. The list of affected source categories is provided in Table 2 
of this preamble.\4\
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    \2\ EPA will not be implementing 40 CFR part 98, subpart JJ due 
to a Congressional restriction prohibiting the expenditure of funds 
for this purpose. As a result, 40 CFR part 98, subpart JJ is not 
included in the scope of this notice.
    \3\ For subpart RR, the data elements covered by this action 
include only certain data elements related to GHG emissions.
    \4\ Certain source categories were revised in an action signed 
on November 24, 2010, which is available on our Web site, https://www.epa.gov/climatechange/emissions/technical-corrections.html#revisions.

           Table 2--Source Categories Covered by This Proposal
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                                                        Federal Register
        Source category         40 CFR Part 98 Subpart       notice
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General Stationary Fuel         C.....................  74 FR 56260,
 Combustion Sources.                                     Revised 11-24-
                                                         2010.
Electricity Generation........  D.....................  74 FR 56260,
                                                         Revised 11-24-
                                                         2010.
Adipic Acid Production........  E.....................  74 FR 56260, 75
                                                         FR 66434.
Aluminum Production...........  F.....................  74 FR 56260,
                                                         Revised 11-24-
                                                         2010.
Ammonia Manufacturing.........  G.....................  74 FR 56260,
                                                         Revised 11-24-
                                                         2010.
Cement Production.............  H.....................  74 FR 56260, 75
                                                         FR 66434.
Electronics Manufacturing.....  I.....................  75 FR 74774.
Ferroalloy Production.........  K.....................  74 FR 56260, 75
                                                         FR 66434.
Fluorinated Gas Production....  L.....................  75 FR 74774.
Glass Production..............  N.....................  74 FR 56260, 75
                                                         FR 66434.
HCFC-22 Production and HFC-23   O.....................  74 FR 56260, 75
 Destruction.                                            FR 66434.
Hydrogen Production...........  P.....................  74 FR 56260, 75
                                                         FR 66434,
                                                         Revised 11-24-
                                                         2010.
Iron and Steel Production.....  Q.....................  74 FR 56260, 75
                                                         FR 66434.
Lead Production...............  R.....................  74 FR 56260.
Lime Manufacturing............  S.....................  74 FR 56260, 75
                                                         FR 66434.
Magnesium Production..........  T.....................  75 FR 39736.
Miscellaneous Uses of           U.....................  74 FR 56260.
 Carbonate.
Nitric Acid Production........  V.....................  74 FR 56260, 75
                                                         FR 66434,
                                                         Revised 11-24-
                                                         2010.
Petroleum and Natural Gas       W.....................  75 FR 74458.
 Systems.
Petrochemical Production......  X.....................  74 FR 56260,
                                                         Revised 11-24-
                                                         2010.
Petroleum Refineries..........  Y.....................  74 FR 56260,
                                                         Revised 11-24-
                                                         2010.
Phosphoric Acid Production....  Z.....................  74 FR 56260, 75
                                                         FR 66434.
Pulp and Paper Manufacturing..  AA....................  74 FR 56260,
                                                         Revised 11-24-
                                                         2010.
Silicon Carbide Production....  BB....................  74 FR 56260.
Soda Ash Manufacturing........  CC....................  74 FR 56260, 75
                                                         FR 66434.
Electrical Transmission and     DD....................  75 FR 74774.
 Distribution Equipment Use.
Titanium Dioxide Production...  EE....................  74 FR 56260, 75
                                                         FR 66434.
Underground Coal Mines........  FF....................  75 FR 39736.
Zinc Production...............  GG....................  74 FR 56260, 75
                                                         FR 66434.
Municipal Solid Waste           HH....................  74 FR 56260, 75
 Landfills.                                              FR 66434.
Industrial Wastewater           II....................  75 FR 39736.
 Treatment.
Subpart RR--Geologic            RR....................  74 FR 56260.
 Sequestration of Carbon
 Dioxide.
Subpart SS--Electrical          SS....................  75 FR 74774.
 Equipment Manufacture or
 Refurbishment.
Subpart TT--Industrial Waste    TT....................  75 FR 39736.
 Landfills.
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[[Page 81354]]

B. Proposed Amendment

    EPA proposes to add additional data elements to Table A-6 at 40 CFR 
part 98. Table A-6 was added by the concurrent interim final rule and 
specifies the data elements that have a deferred reporting date. The 
Table A-6 added by the interim final rule only includes data elements 
with an initial reporting year of 2010 and original initial reporting 
date of March 31, 2011. This action proposes to add the remaining data 
elements that are inputs to emission equations.\5\ In addition, under 
the annual reporting requirement at 40 CFR 98.3(c), EPA proposes to 
amend 40 CFR 98.3(c)(4)(vii) (also added by the concurrent interim 
final rule) to defer the reporting date for data elements listed in 
Table A-6 until March 31, 2014.\6\ This proposed action would not 
change any other requirements of Part 98, including the requirement 
that these data elements be retained as records in a form that is 
suitable for expeditious inspection and review (required for all part 
98 records by 40 CFR 98.3(g)).
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    \5\ The list of inputs to equations is slightly different than 
what was proposed in the July 7, 2010 CBI proposal. Reporting 
elements included in this category are values used by reporters to 
calculate equation outputs.
    \6\ This proposal also provides the public an opportunity to 
comment on the Table A-6 and paragraph 40 CFR 98.3(c)(4)(vii) added 
in the interim final rule.
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C. Request for Comments

    This notice proposes to defer until March 31, 2014, the requirement 
to report inputs to emission equations for calendar years through 2012. 
Accordingly, comments on this action should be limited to the proposed 
deferral of the reporting requirements for these data elements. There 
will be separate notice and comment opportunities to address other 
issues, as described below.

III. Rationale for the Proposed Amendment

    In the July 7, 2010, CBI proposal, EPA proposed that data elements 
in the inputs to emission equations data category meet the definition 
of emission data under 40 CFR 2.301(a)(2)(i), consistent with our long-
standing interpretation, and therefore, under CAA section 114(c), could 
not be held as confidential once they were reported to EPA. EPA 
received many comments in response and considers some of these comments 
to warrant further consideration before EPA issues final 
confidentiality determinations for data elements that are inputs to 
emission equations for direct emitters. This process requires 
additional time, necessitating this proposed deferral. Although we are 
not responding to public comments on the July 7, 2010 CBI proposal in 
this action, we are presenting some comments that illustrate the need 
to defer reporting of inputs to equations in order to allow EPA time to 
further consider the issues raised by these comments.
    EPA received comments that raise serious concerns regarding the 
public availability of data in the inputs to emission equations 
category. Almost all commenters from industry wrote that some or all 
inputs to emission equations (which include product compositions, raw 
materials used, fuel types and quantities, production volumes, and 
other process-specific information) are considered trade secrets or 
otherwise sensitive business information, and that making those inputs 
publicly available would cause them serious competitive harm. Some 
commenters expressed concern that public disclosure of production 
volumes and process-specific information could give competitors insight 
into sensitive operational limits and process capabilities. The 
commenters explained that, combined with other publicly available 
information, this information could give competitors details concerning 
business positions or vulnerabilities that could be used to a 
reporter's disadvantage. Some commenters stated that disclosure of the 
type, composition, and relative proportions of raw materials used would 
reveal the specific formula used to manufacture their products. Others 
expressed concern that product composition data reveal information 
about their products' performance characteristics. Some stated that 
public availability of information about the types and quantities of 
fuels consumed would reveal sensitive details about individual 
production processes' energy usage and could be used to estimate 
relative production costs.
    Several Part 98 reporters commented that, had they known that EPA 
would later propose that inputs to emission equations qualify as 
emission data that must be made available to the public under CAA 
section 114(c), they would have commented more critically and more 
extensively on Part 98 equations when they were proposed in 2009 and 
might have suggested or agreed to alternatives such as third-party 
audits or installation of continuous emission monitoring systems 
(CEMS). Several reporters wrote that they would have installed CEMS or 
otherwise changed their compliance approaches. Commenters further noted 
that, for some subparts, Part 98 allows monitoring emissions with CEMS 
as an alternative to calculation with emission equations but that, by 
the time EPA proposed CBI determinations in July 2010, reporters no 
longer could install CEMS for 2010. As a result, commenters stated, 
these reporters were locked into using the emission equations for 2010 
reporting if that was the methodology they had chosen. They argued that 
possible public availability of potentially sensitive inputs for 
calculation of 2010 emissions should not be based on a reporter's 
decision not to install CEMS for 2010 when this decision was made prior 
to and without knowledge of the July 7, 2010 CBI proposal.
    EPA has reviewed these comments and has concluded that some of the 
concerns warrant more extensive evaluation of potential impacts from 
the public availability of inputs to equations. EPA notes, however, 
that many of the potential problems commenters described are general in 
nature and likely to apply to some but not all inputs to emission 
equations or industrial sectors. For example, multiple industries 
consider raw material quantities and compositions to be trade secrets, 
but municipal landfill data are generally available in public records. 
Because many comments raised serious concerns without sufficient 
specificity for EPA to fully evaluate and address them, we are 
concurrently issuing a call for information that solicits additional 
information including:
     Identification of which specific data elements used as 
inputs to emission equations the commenter considers sensitive business 
information and specifically how disclosure would cause competitive 
harm.
     Identification of which data elements that are inputs to 
emission equations are already publicly available or discernable from 
other publicly available data.
    We also are soliciting suggestions regarding possible changes to 
Part 98, including:
     Identification of additional calculation methods that 
would adequately calculate GHG emissions without using the specific 
inputs that the commenter considers to be sensitive.
     Identification of additional data verification methods 
that could be used if EPA does not collect the specific data elements 
that commenters consider to be sensitive.
    The call for information includes further details on the specific 
types of information requested and instructions for submitting 
information and comments.

[[Page 81355]]

    Once EPA receives the additional requested information, we will be 
able to fully evaluate which, if any, inputs to equations could result 
in the harmful consequences described by the July 7, 2010 CBI proposal 
commenters if made available to the public. For any inputs, the release 
of which EPA determines could result in the business harms alleged by 
commenters, EPA would evaluate whether emissions can be calculated or 
verified using additional methodologies, consistent with the 
transparency and accuracy goals of Part 98, without EPA collecting 
these inputs. Should EPA identify any such additional methodologies, 
EPA may propose to amend Part 98 to allow these additional emission 
measurement or calculation approaches. If additional approaches to 
calculate or verify emissions are viable, EPA may determine that it is 
not necessary to collect certain highly sensitive inputs and propose to 
amend Part 98 accordingly. As previously stated in the July 7, 2010 CBI 
proposal preamble, however, EPA is committed to transparency as well as 
accuracy in the GHG Reporting Program. We consider transparency 
important because it promotes public confidence in the data and enables 
the public, industry, advocacy groups, and other stakeholders to better 
understand the sources of GHG emissions and the factors that affect the 
quantities of GHGs emitted. Therefore, any additional approach we adopt 
would be based on a well-balanced consideration of both the importance 
of protecting certain highly sensitive data and our commitment to the 
GHG Reporting Program's transparency and accuracy. Should EPA decide 
that it is necessary to amend Part 98 as a result of this evaluation, 
we would promulgate any such amendment through a notice and comment 
process.
    As noted above, EPA needs time to collect information, conduct 
extensive evaluations, and take final actions regarding inputs to 
equations, which EPA cannot complete before the current reporting 
deadlines. To give EPA time to complete these important tasks before 
these data elements are reported and potentially subject to release, 
EPA is issuing this proposed rule to defer until March 31, 2014, the 
deadline for reporting of data elements that are inputs to emission 
equations. As noted above, EPA is concurrently issuing an interim final 
rule that defers the reporting deadline for these data elements until 
August 31, 2011 to allow us to undertake this notice and comment 
process before inputs to emission equations must be reported to EPA.
    EPA is not revisiting our decision to require self-certification 
with EPA emissions verification. We plan to verify the data and to 
ensure that accurate data is available to the public, including for the 
years in which inputs are temporarily not collected. EPA outlined in 
the preamble to Part 98 (74 FR 56260) the reasons for selecting our 
verification approach, and these reasons remain relevant and 
compelling. In the final Part 98, we determined that EPA verification 
allows EPA to implement an efficient two-step process of (1) a 
centralized, automated electronic review and (2) direct follow-up with 
facilities, including conducting on-site audits when potential errors, 
discrepancies, or questions arise from the electronic review results.
    During the deferral, EPA plans to follow this two-step process with 
some modifications. Neither the short-term deferral put in place by the 
concurrent interim final rule nor the longer-term deferral proposed in 
this action affects supplier source categories, so neither action will 
affect the verification process for supplier data. For the direct 
emitter source categories, EPA recognizes that, during the deferral 
period, we will receive fewer data upon which to conduct electronic 
verification. As a result, EPA temporarily will place additional 
emphasis on the second step of the process, direct follow-up with 
facilities. Increased emphasis on direct follow-up with facilities will 
allow EPA to compensate for the reduced amount of electronic 
verification that can be conducted during this temporary period.
    Although we will not be collecting the equation inputs during the 
deferral period, we will nonetheless still be collecting several 
different types of data that will be used for verification. These data 
include the calculation methodologies used, specific test methods that 
were used to determine equation inputs, an indication of whether 
missing data procedures were used, and various operating 
characteristics such as plant and equipment capacities and production 
rates. These data will be used in the electronic verification process. 
EPA is confident that electronic verification coupled with more robust 
direct follow-up will achieve verification for this three year period.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This proposed amendment would allow facilities to keep certain data 
elements as records rather than report them in their annual GHG reports 
during the deferral period, so it would not increase the reporting 
burden. However, OMB has previously approved the information collection 
requirements contained in the regulations promulgated on October 30, 
2009, under 40 CFR part 98, under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2060-0629. EPA has also submitted the Information Collection 
Request requirements for four additional Part 98 subparts promulgated 
on July 12, 2010 to OMB for approval (see 75 FR 39756). The OMB control 
numbers for EPA's regulations in 40 CFR are listed at 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, ``small entity'' is defined as: (1) A small business as 
defined by the Small Business Administration's regulations at 13 CFR 
121.201; (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 which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this proposed rule 
amendment on small entities, I certify that this action will not have a 
significant economic impact on a

[[Page 81356]]

substantial number of small entities. The proposed rule amendment will 
not impose any new requirement on small entities that are not currently 
required by Part 98.
    EPA took several steps to reduce the impact of Part 98 on small 
entities. For example, EPA determined appropriate thresholds that 
reduced the number of small businesses reporting. In addition, EPA did 
not require facilities to install CEMS if they did not already have 
them. Facilities without CEMS can calculate emissions using readily 
available data or data that are less expensive to collect such as 
process data or material consumption data. For some source categories, 
EPA developed tiered methods that are simpler and less burdensome. 
Also, EPA required annual instead of more frequent reporting. Finally, 
EPA continues to conduct significant outreach on the mandatory GHG 
reporting rule and maintains an ``open door'' policy for stakeholders 
to help inform EPA's understanding of key issues for the regulated 
industries.
    We continue to be interested in the potential impacts of the 
proposed rule amendment on small entities and welcome comments on 
issues related to such effects.

D. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and Tribal governments and the private sector. Federal 
agencies must also develop a plan to provide notice to small 
governments that might be significantly or uniquely affected by any 
regulatory requirements. The plan must enable officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates and must inform, educate, and advise small 
governments on compliance with the regulatory requirements.
    The proposed amendment to 40 CFR part 98 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. The proposed amendment would allow certain data 
elements to be retained as records rather than reported, so it does not 
increase the costs for facilities to comply with Part 98. Thus, the 
proposed amendment is not subject to the requirements of sections 202 
or 205 of UMRA.
    In developing Part 98, EPA consulted with small governments 
pursuant to a plan established under section 203 of UMRA to address 
impacts of regulatory requirements in the rule that might significantly 
or uniquely affect small governments. For a summary of EPA's 
consultations with State and/or local officials or other 
representatives of State and/or local governments in developing Part 
98, see Section VIII.D of the preamble to the final rule (74 FR 56370, 
October 30, 2009).

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. However, for a more detailed 
discussion about how Part 98 relates to existing State programs, please 
see Section II of the preamble to the final rule (74 FR 56266, October 
30, 2009).
    This proposed amendment applies to facilities that directly emit 
greenhouses gases. It does not apply to government entities unless a 
government entity owns a facility that directly emits greenhouse gases 
above threshold levels (such as a landfill), so relatively few 
government facilities would be affected. This regulation also does not 
limit the power of States or localities to collect GHG data and/or 
regulate GHG emissions. Thus, Executive Order 13132 does not apply to 
this action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials. For a summary of EPA's consultation 
with State and local organizations and representatives in developing 
Part 98, see Section VIII.E of the preamble to the final rule (74 FR 
56371, October 30, 2009).

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

    This action does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). The proposed 
rule amendment would not result in any changes to the requirements of 
Part 98 other than allowing facilities to keep certain data elements as 
records rather than report them in their annual GHG reports through 
2012. Thus, Executive Order 13175 does not apply to this action. For a 
summary of EPA's consultations with Tribal governments and 
representatives, see section VIII.F of the preamble to the final rule 
(74 FR 56371, October 30, 2009). EPA specifically solicits additional 
comment on this proposed action from Tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

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

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

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 (15 U.S.C. 272 note) directs 
EPA to use voluntary consensus standards in its regulatory activities 
unless to do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable voluntary consensus standards.
    The proposed rule amendment does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent

[[Page 81357]]

practicable and permitted by law, to make environmental justice part of 
their mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The proposed amendment addresses only reporting and 
recordkeeping procedures.

List of Subjects in 40 CFR Part 98

    Environmental protection, Administrative practice and procedure, 
Greenhouse gases, Reporting and recordkeeping requirements.

    Dated: December 17, 2010.
Lisa P. Jackson,
Administrator.

    For the reasons set out in the preamble, title 40, Chapter I, of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 98--[AMENDED]

    1. The authority citation for Part 98 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart A--[Amended]

    2. Section 98.3 is amended by revising paragraph (c)(4)(vii) to 
read as follows:


Sec.  98.3  What are the general monitoring, reporting, recordkeeping, 
and verification requirements of this part?

* * * * *
    (c) * * *
    (4) * * *
    (vii) The owner or operator of a facility is not required to report 
the data elements specified in Table A-6 of this subpart for calendar 
years 2010 through 2012 until March 31, 2014.
* * * * *
    3. Revise Table A-6 to subpart A to read as follows:

------------------------------------------------------------------------
                                              Specific data elements for
                                                which reporting date is
                  Rule citation (40 CFR part    changed (``All'' means
     Subpart                  98)              that the date is changed
                                               for all data elements in
                                                 the cited paragraph)
------------------------------------------------------------------------
A...............  98.3(d)(3)(v).............  All.
C...............  98.36(b)(9)(iii)..........  Only estimate of the heat
                                               input.
C...............  98.36(c)(2)(ix)...........  Only estimate of the heat
                                               input from each type of
                                               fuel listed in Table C-2.
C...............  98.36(d)(1)(iv)...........  All.
C...............  98.36(d)(2)(ii)(G)........  All.
C...............  98.36(d)(2)(iii)(G).......  All.
C...............  98.36(e)(2)(i)............  All.
C...............  98.36(e)(2)(ii)(A)........  All.
C...............  98.36(e)(2)(ii)(C)........  Only HHV value for each
                                               calendar month in which
                                               HHV determination is
                                               required.
C...............  98.36(e)(2)(ii)(D)........  All.
C...............  98.36(e)(2)(iv)(A)........  All.
C...............  98.36(e)(2)(iv)(C)........  All.
C...............  98.36(e)(2)(iv)(F)........  All.
C...............  98.36(e)(2)(iv)(G)........  All.
C...............  98.36(e)(2)(vi)(C)........  Only stack gas flow rate
                                               and moisture content.
C...............  98.36(e)(2)(viii)(A)......  All.
C...............  98.36(e)(2)(viii)(B)......  All.
C...............  98.36(e)(2)(viii)(C)......  All.
C...............  98.36(e)(2)(ix)(D)........  All.
C...............  98.36(e)(2)(ix)(E)........  All.
C...............  98.36(e)(2)(ix)(F)........  All.
C...............  98.36(e)(2)(x)(A).........  All.
C...............  98.36(e)(2)(xi)...........  All.
E...............  98.56(b)..................  All.
E...............  98.56(c)..................  All.
E...............  98.56(g)..................  All.
E...............  98.56(h)..................  All.
E...............  98.56(j)(1)...............  All.
E...............  98.56(j)(3)...............  All.
E...............  98.56(j)(4)...............  All.
E...............  98.56(j)(5)...............  All.
E...............  98.56(j)(6)...............  All.
E...............  98.56(l)..................  All.
F...............  98.66(a)..................  All.
F...............  98.66(c)(2)...............  All.
F...............  98.66(c)(3)...............  Only smelter-specific
                                               slope coefficients and
                                               overvoltage emission
                                               factors.
F...............  98.66(e)(1)...............  Only annual anode
                                               consumption (No CEMS).
F...............  98.66(f)(1)...............  Only annual paste
                                               consumption (No CEMS).
F...............  98.66(g)..................  All.
G...............  98.76(b)(2)...............  All.
G...............  98.76(b)(7)...............  All.
G...............  98.76(b)(8)...............  All.
G...............  98.76(b)(9)...............  All.
G...............  98.76(b)(10)..............  All.
G...............  98.76(b)(11)..............  All.
H...............  98.86(b)(2)...............  All.
H...............  98.86(b)(5)...............  All.

[[Page 81358]]

 
H...............  98.86(b)(6)...............  All.
H...............  98.86(b)(8)...............  All.
H...............  98.86(b)(10)..............  All.
H...............  98.86(b)(11)..............  All.
H...............  98.86(b)(12)..............  All.
H...............  98.86(b)(13)..............  All.
H...............  98.86(b)(15)..............  Only monthly kiln-specific
                                               clinker factors (if used)
                                               for each kiln.
I...............  98.96(f)(1)...............  All.
I...............  98.96(g)..................  Only annual consumption of
                                               the gas.
I...............  98.96(h)..................  All.
I...............  98.96(i)..................  All.
I...............  98.96(j)..................  All.
I...............  98.96(k)..................  All.
I...............  98.96(l)..................  All.
I...............  98.96(n)..................  All.
I...............  98.96(o)..................  Only inputs and
                                               calculations used to
                                               determine the inputs for
                                               Equation I-14.
I...............  98.96(q)(1)...............  Only inputs and results of
                                               calculations made
                                               accounting for the uptime
                                               of abatement systems used
                                               during the reporting
                                               year.
I...............  98.96(q)(3)...............  All.
I...............  98.96(q)(5)(iv)...........  Only inputs used to
                                               calculate the class
                                               average.
I...............  98.96(r)..................  All.
I...............  98.96(s)..................  Only estimates of inputs
                                               into the heat transfer
                                               fluid mass balance
                                               equation.
K...............  98.116(b).................  Only annual production by
                                               product from each EAF (No
                                               CEMS).
K...............  98.116(e)(4)..............  All.
K...............  98.116(e)(5)..............  All.
L...............  98.126(b)(1)..............  Only data used in
                                               calculating the absolute
                                               errors and data used in
                                               calculating the relative
                                               errors.
L...............  98.126(b)(2)..............  All.
L...............  98.126(b)(8)(i)...........  Only mass of each fluorine-
                                               containing product that
                                               is removed from the
                                               process and fed into the
                                               destruction device.
L...............  98.126(b)(8)(ii)..........  Only mass of each fluorine-
                                               containing by-product
                                               that is removed from the
                                               process and fed into the
                                               destruction device.
L...............  98.126(b)(8)(iii).........  Only mass of each fluorine-
                                               containing reactant that
                                               is removed from the
                                               process and fed into the
                                               destruction device.
L...............  98.126(b)(8)(iv)..........  Only mass of each fluorine-
                                               containing by-product
                                               that is removed from the