[Federal Register Volume 77, Number 156 (Monday, August 13, 2012)]
[Rules and Regulations]
[Pages 48072-48089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19559]
[[Page 48072]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 98
[EPA-HQ-OAR-2011-0028; FRL-9706-6]
RIN 2060-AQ70
Final Confidentiality Determinations for Regulations Under the
Mandatory Reporting of Greenhouse Gases Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action finalizes confidentiality determinations for
certain data elements in regulations under the Mandatory Greenhouse Gas
Reporting Rule. In addition, the EPA is finalizing amendments to defer
the reporting deadline of certain data elements until 2013 and to defer
the reporting deadline of certain data elements until 2015. Lastly, the
EPA is finalizing amendments regarding the calculation and reporting of
emissions from facilities that use best available monitoring methods.
This action does not include final confidentiality determinations for
data elements in the ``Inputs to Emission Equations'' data category.
DATES: This rule will be effective on September 12, 2012, except for
the amendments to Tables A-6 and A-7 of 40 CFR part 98 subpart A and
the amendments to 40 CFR part 98 subpart I (Sec. 98.94(a)(2)(iii),
(a)(3)(iii), and (a)(4)(iii)), which are effective on August 13, 2012.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2011-0028. All documents in the docket are
listed in the http://www.regulations.gov index. Although listed in the
index, some information may not be publicly available, e.g.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and is publicly
available in hard copy only. Publicly available docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at the EPA's Docket Center, 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; email address:
[email protected]. For technical information and implementation
materials, please go to the Web site http://www.epa.gov/climatechange/emissions/CBI.html. To submit a question, select ``Rule Help Center,''
followed by ``Contact Us.''
SUPPLEMENTARY INFORMATION: Worldwide Web (WWW). In addition to being
available in Docket ID No. EPA-HQ-OAR-2011-0028, following the
Administrator's signature, an electronic copy of this final rule will
be available through the WWW on the EPA's Greenhouse Gas Reporting
Program Web site at http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.
What is the effective date? The final rule is effective on
September 12, 2012, except for the amendments to Tables A-6 and A-7 of
40 CFR part 98 subpart A and the amendments to 40 CFR part 98 subpart I
(section 98.94(a)(2)(iii), (a)(3)(iii), and (a)(4)(iii)), which are
effective on August 13, 2012. Section 553(d) of the Administrative
Procedure Act (APA), 5 U.S.C. chapter 5, generally provides that rules
may not take effect earlier than 30 days after they are published in
the Federal Register. EPA is issuing this final rule under section
307(d)(1) of the Clean Air Act, which states: ``The provisions of
section 553 through 557 of Title 5 shall not, except as expressly
provided in this section, apply to actions to which this subsection
applies.'' Thus, section 553(d) of the APA does not apply to this rule.
EPA is nevertheless acting consistently with the purposes underlying
APA section 553(d) in making the amendments to subparts A and I
effective on August 13, 2012. The amendments to subpart A defer the
reporting deadline for several inputs to emission equations and the
amendments to subpart I remove the requirement for some facilities to
recalculate and report data under that subpart. An effective date less
than 30 days after the date of publication in such circumstances is
consistent with the purposes of APA section 553(d), which provides an
exception for any action that grants or recognizes an exemption or
relieves a restriction.
Judicial Review. Under section 307(b)(1) of the CAA, judicial
review of this final rule is available only by filing a petition for
review in the U.S. Court of Appeals for the District of Columbia
Circuit (the Court) by October 12, 2012. Under CAA section
307(d)(7)(B), only an objection to this final rule that was raised with
reasonable specificity during the period for public comment can be
raised during judicial review. Section 307(d)(7)(B) of the CAA also
provides a mechanism for the EPA to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to EPA that it was impracticable to raise such objection within [the
period for public comment] or if the grounds for such objection arose
after the period for public comment (but within the time specified for
judicial review) and if such objection is of central relevance to the
outcome of the rule.'' Any person seeking to make such a demonstration
to us should submit a Petition for Reconsideration to the Office of the
Administrator, Environmental Protection Agency, Room 3000, Ariel Rios
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a
copy to the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section, and the Associate General Counsel for the Air and
Radiation Law Office, Office of General Counsel (Mail Code 2344A),
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20004. Note, under CAA section 307(b)(2), the
requirements established by this final rule may not be challenged
separately in any civil or criminal proceedings brought by the EPA to
enforce these requirements.
Acronyms and Abbreviations. The following acronyms and
abbreviations are used in this document.
BAMM Best Available Monitoring Methods
CAA Clean Air Act
CO2 Carbon Dioxide
CBI Confidential Business Information
CBP U.S. Customs and Border Protection
CFR Code of Federal Regulations
EIA Energy Information Administration
ER Enhanced Recovery
EPA U.S. Environmental Protection Agency
F-GHG Fluorinated Greenhouse Gas
GHG Greenhouse Gas
ICR Information Collection Request
NTTAA National Technology Transfer and Advancement Act of 1995
OMB Office of Management & Budget
R&D Research and Development
RFA Regulatory Flexibility Act
UMRA Unfunded Mandates Reform Act of 1995
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. General Information
[[Page 48073]]
A. What is the purpose and background of this action?
B. Does this action apply to me?
C. Legal Authority
D. Approach to Making Confidentiality Determinations
II. Confidentiality Determinations for Subparts I, W, DD, QQ, RR,
SS, and UU and Responses to Public Comments
A. Final Confidentiality Determinations
B. Direct Emitter Data Categories
C. GHG Supplier Data Categories
III. Confidentiality Determinations for New Data Elements in
Subparts II and TT and Responses to Public Comments
IV. Amendments to Table A-6 and A-7 To Defer Reporting of Certain
Inputs to Emission Equations in Subparts W, FF and TT
V. Background and Amendments to the Best Available Monitoring Method
for Subpart I
A. Background
B. Amendments to the Best Available Monitoring Method Provisions
for Subpart I
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory 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
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
K. Congressional Review Act
I. General Information
A. What is the purpose and background of this action?
The first purpose of this action is to finalize confidentiality
determinations for the data elements (except those in the ``Inputs to
Emission Equations'' data category and certain additional subpart I
data elements) in seven subparts of 40 CFR part 98 of the Mandatory
Greenhouse Gases Reporting Rule (hereafter referred to as ``Part 98''):
Subpart I--Electronics Manufacturing
Subpart W--Petroleum and Natural Gas Systems
Subpart DD--Use of Electric Transmission and Distribution
Equipment
Subpart QQ--Imports and Exports of Equipment Pre-Charged with
Fluorinated GHGs or Containing Fluorinated GHGs in Closed-Cell Foams
Subpart RR--Geologic Sequestration of Carbon Dioxide
Subpart SS--Manufacture of Electric Transmission and
Distribution Equipment
Subpart UU--Injection of Carbon Dioxide
The second purpose of this action is to finalize confidentiality
determinations for new data elements (that are not inputs to emission
equations) added to subparts II and TT in the Technical Corrections
final rule \1\ after the EPA issued final confidentiality
determinations for non-inputs to equations data elements in these two
subparts.\2\
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\1\ 76 FR 73886, November 29, 2011.
\2\ Final confidentiality determinations for subparts II and TT
were made in the 2011 Final CBI Rule (76 FR 30782, May 26, 2011).
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The third purpose of this action is to finalize amendments to
subpart A of Part 98 to defer until 2013 or 2015 the reporting deadline
for inputs to emission equations data elements recently added by the
Technical Corrections final rule. These data elements are in subparts
W, FF, and TT.
The fourth purpose of this action is to finalize amendments to
subpart I regarding the calculation and reporting of emissions from
facilities that use best available monitoring methods (BAMM). These
amendments remove the obligation to recalculate and resubmit emission
estimates for the period during which the facility used best available
monitoring methods.
As noted above, we are making final confidentiality determinations
for the data elements reported under the finalized subparts of Part 98
identified in Table 1 of this preamble. We are not making final
confidentiality determinations for data elements in this action not
identified in Table 1. We are also finalizing amendments to Tables A-6
and A-7 of subpart A for the subparts shown in Table 1 of this
preamble.
Table 1--Subparts and Data Elements Covered in this Final Rule
------------------------------------------------------------------------
Confidentiality Amendments to Table A-6
Subpart determinations or A-7
------------------------------------------------------------------------
I.................. Some data elements none.
(excludes recipe-
specific data elements,
a manufacturing
capacity data element,
and inputs to emission
equations).\a\
W.................. All data elements except Table A-7.
inputs to emission
equations.
DD................. All data elements except none.
inputs to emission
equations.
FF................. None but finalizes two none.\b\
data elements recently
added to 40 CFR
98.326(o) \c\ as inputs
to emission equations.
II................. Some data elements (only none.
includes data elements
added by 76 FR 73886).
QQ................. All data elements except none.
inputs to emission
equations.
RR................. All data elements except none.
inputs to emission
equations.
SS................. All data elements except none.
inputs to emission
equations.
TT................. Some data elements (only Table A-6.
includes data elements
added by 76 FR 73886).
UU................. All data elements except none.
inputs to emission
equations.
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\a\ For the reasons provided in Section II of this preamble, certain
subpart I data elements are not covered in this final rule. For a list
of subpart I data elements not covered in this rule, see Table 4 in
the Memorandum, ``Final Data Category Assignments and Confidentiality
Determinations for the 2012 Final CBI Rule.''
\b\ As explained in the 2012 CBI re-proposal, paragraph Sec. 98.326(o)
is already included in Table A-6 of subpart A for reporting by March
31, 2013; therefore, no amendments to Table A-6 of subpart A are
necessary to include these two new subpart FF data elements in the
list of deferred data elements.
\c\ 76 FR 73886, November 29, 2011.
[[Page 48074]]
1. Background for CBI Determinations for All Data Elements That Are Not
in the ``Inputs to Emissions Equations'' Data Category
This action finalizes confidentiality determinations for data
elements specified in Table 1 of this preamble. For information on the
history of CBI determinations for the data elements at issue, see the
following notices (available at http://www.epa.gov/climatechange/emissions/CBI.html):
75 FR 39094, July 7, 2010; hereafter referred to as the
``July 7, 2010 CBI proposal.'' Proposed confidentiality determinations
for Part 98 data elements, including subparts I, W, DD, II, QQ, RR, SS,
and TT.
76 FR 30782, May 26, 2011; hereafter referred to as the
``2011 Final CBI Rule.'' Finalized confidentiality determinations for
data categories, assigned data elements to data categories and
published the final CBI determinations for the data elements in 34 Part
98 subparts, except for those assigned to the ``Inputs to Emission
Equations'' data category. This included confidentiality determinations
for subparts II and TT and excluded confidentiality determinations for
subparts I, W, DD, QQ, RR, SS, and UU.\3\
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\3\ The EPA initially proposed subparts RR and UU as a single
subpart (subpart RR); however, as a result of public comments on
subpart RR, the EPA moved all definitions, requirements, and
procedures for facilities conducting only CO2 injection
(without geologic sequestration) into a new subpart (subpart UU).
Subpart RR retained all definitions, requirements, and procedures
related to facilities conducting geologic sequestration.
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77 FR 1434, January 10, 2012; hereafter referred to as
``2012 CBI re-proposal.'' The EPA re-proposed for public comment the
confidentiality determinations for the data elements in subparts L,\4\
DD, QQ, RR, SS, and UU, as well as new data elements (added by the
Technical Corrections final rule) in subparts II and TT to reflect the
reporting data elements in the final subparts and all subsequent
amendments to these subparts up to the date of the 2012 CBI re-
proposal.
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\4\ For subpart L, the EPA received comments raising concerns
that the release of certain data elements that the EPA proposed to
classify as emissions data, and that therefore would not be eligible
for treatment as CBI, would reveal trade secrets and may violate
export control laws. The EPA is not finalizing confidentiality
determinations for subpart L data elements in this action. The
confidentiality determinations for subpart L will be addressed
separately. Please see Docket ID No. EPA-HQ-OAR-2011-0147 for more
information.
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77 FR 10434, February 22, 2012; hereafter referred to as
``Subpart I CBI re-proposal.'' The EPA re-proposed for public comment
the confidentiality determinations for many data elements in subpart I
to reflect the reporting data elements in the 2010 final subpart I and
all subsequent amendments to subpart I up to the date of the Subpart I
CBI re-proposal.
77 FR 11039, February 24, 2012; hereafter referred to as
``Subpart W CBI re-proposal.'' The EPA re-proposed for public comment
the confidentiality determinations for the data elements in subpart W
to reflect the data elements in the 2010 final subpart W and all
subsequent amendments to subpart W up to the date of the Subpart W CBI
re-proposal.
2. Background on Data Elements in the ``Inputs to Emissions Equations''
Data Category
This rule finalizes amendments to Tables A-6 and A-7 of subpart A
to defer the deadline for reporting certain recently added data
elements in subparts W, FF, and TT that we are assigning to the
``Inputs to Emission Equations'' data category. This action does not
include final confidentiality determinations for data elements that are
in the ``Inputs to Emission Equations'' data category. For information
on the history of the deferral of the reporting deadline for inputs,
see the following notices (available at http://www.epa.gov/climatechange/emissions/CBI.html):
75 FR 81366, December 27, 2010; hereafter referred to as
the ``call for information.'' Requested comment on whether each data
element used as an input to an emission equation for direct emitters
was likely to cause substantial competitive harm if made publicly
available.
76 FR 53057, August 25, 2011; hereafter referred to as the
``Final Deferral Notice.'' The EPA deferred the deadline for direct
emitter reporters to report inputs to emission equations data elements.
The EPA deferred the deadline for reporting some of these data elements
to March 31, 2013, and others to March 31, 2015. Subpart FF and TT
inputs were deferred to March 31, 2013, and are identified in Table A-6
of subpart A, and subpart W inputs were deferred to March 31, 2015, and
are identified in Table A-7 of subpart A.
B. Does this action apply to me?
This final rule affects entities required to submit annual
greenhouse gas (GHG) reports under certain subparts of Part 98. 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''). Part 98 and this action affect
owners and operators of electronics manufacturing facilities, petroleum
and natural gas systems, electric power systems, electrical equipment
manufacturing facilities, carbon dioxide (CO2) enhanced oil
and gas recovery projects, acid gas injection projects, geologic
sequestration projects, importers and exporters of pre-charged
equipment and closed-cell foams, industrial wastewater treatment
facilities, underground coal mines, and industrial waste landfills.
Affected categories and entities include those listed in Table 2 of
this preamble.
Table 2--Examples of Affected Entities by Category
------------------------------------------------------------------------
Examples of
Category NAICS affected
facilities
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Electronics Manufacturing.... 334111.................. Microcomputers
manufacturing
facilities.
334413.................. Semiconductor,
photovoltaic
(solid-state)
device
manufacturing
facilities.
334419.................. Liquid crystal
display unit
screens
manufacturing
facilities.
334419.................. Micro-electro-
mechanical
systems
manufacturing
facilities.
Petroleum and Natural Gas 486210.................. Pipeline
Systems. 221210.................. transportation
of natural
gas.
Natural gas
distribution
facilities.
211..................... Extractors of
crude
petroleum and
natural gas.
211112.................. Natural gas
liquid
extraction
facilities.
Electrical Equipment Use..... 221121.................. Electric bulk
power
transmission
and control
facilities.
Electrical Equipment 33531................... Power
Manufacture or Refurbishment. transmission
and
distribution
switchgear and
specialty
transformers
manufacturing
facilities.
[[Page 48075]]
Importers and Exporters of 423730.................. Air-
Pre-charged Equipment and 333415.................. conditioning
Closed-Cell Foams. equipment
(except room
units)
merchant
wholesalers.
Air-
conditioning
equipment
(except motor
vehicle)
manufacturing.
336391.................. Motor vehicle
air-
conditioning
manufacturing.
423620.................. Air-
conditioners,
room, merchant
wholesalers.
443111.................. Household
appliance
stores.
423730.................. Automotive air-
conditioners
merchant
wholesalers.
326150.................. Polyurethane
foam products
manufacturing.
335313.................. Circuit
breakers,
power,
manufacturing.
423610.................. Circuit
breakers
merchant
wholesalers.
CO2 Enhanced Oil and Gas 211..................... Oil and gas
Recovery Projects. extraction
projects using
CO2 enhanced
recovery.
Acid Gas Injection Projects.. 211111 or 211112........ Projects that
inject acid
gas containing
CO2
underground.
Geologic Sequestration N/A..................... CO2 geologic
Projects. sequestration
projects.
Underground Coal Mines....... 212113.................. Underground
212112.................. anthracite
coal mining
operations.
Underground
bituminous
coal mining
operations.
Industrial Wastewater 322110.................. Pulp mills.
Treatment. 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.
324110.................. Petroleum
refineries.
Industrial Waste Landfills... 562212.................. Solid waste
322110.................. landfills.
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.
221320.................. Sewage
treatment
facilities.
------------------------------------------------------------------------
Table 2 of this preamble lists the types of entities that
potentially could be affected by the confidentiality determinations and
amendments under the subparts covered by this action. However, this
list is not intended to be exhaustive, but rather provides a guide for
readers regarding facilities and suppliers likely to be affected by
this action. Other types of facilities and suppliers not listed in the
table could also be subject to this action. To determine whether you
are affected by this action, you should carefully examine the
applicability criteria found in 40 CFR part 98, subpart A as well as 40
CFR part 98 subparts I, W, DD, FF, II, QQ, RR, SS, TT, and UU. If you
have questions regarding the applicability of this action to a
particular facility, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section of this preamble.
C. Legal Authority
The EPA is finalizing certain amendments to Part 98 under its
existing CAA authority, specifically authorities provided in CAA
section 114. As stated in the preamble to the 2009 Mandatory Reporting
of Greenhouse Gases final rule (74 FR 56260, October 30, 2009) and the
Response to Comments on the Proposed Rule, Volume 9, Legal Issues, CAA
section 114 provides the EPA broad authority to obtain the information
in Part 98 because such data inform and are relevant to the EPA's
carrying out a wide variety of CAA provisions. As discussed in the
preamble to the initial Part 98 proposal (74 FR 16448, April 10, 2009),
CAA section 114(a)(1) authorizes the Administrator to require emissions
sources, persons subject to the CAA, manufacturers of control or
process equipment, or persons whom the Administrator believes may have
necessary information to monitor and report emissions and provide such
other information the Administrator requests for the purposes of
carrying out any provision of the CAA.
In addition, the EPA is finalizing confidentiality determinations
for certain Part 98 data under its authorities provided in sections
114, 301 and 307 of the CAA. As mentioned above, CAA section 114
provides the EPA authority to obtain the information in Part 98.
Section 114(c) of the CAA requires that the EPA make publicly available
information obtained under CAA section 114 except for information
(excluding emission data) that qualifies for confidential treatment.
The Administrator has determined that this action (Part 98 amendment
and confidentiality determinations) is subject to the provisions of CAA
section 307(d).
D. Approach to Making Confidentiality Determinations
As explained in the 2012 CBI re-proposal, we are applying the same
approach to making confidentiality determinations as was used in the
2011 Final CBI Rule. Specifically, we have assigned each data element
specified in Table 1 of this preamble to one of 21 data categories \5\
based on the type and characteristics of the data element. The
[[Page 48076]]
data categories are listed in Tables 3 and 4 of this preamble. For a
description of each data category and the type and characteristics of
data elements assigned to each, please see Sections II.C and II.D of
the July 7, 2010 CBI proposal.
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\5\ As previously mentioned, this final rule does not address
the confidentiality of data elements in the ``Inputs to Emission
Equations'' data category. For data elements in subparts W, FF, and
TT that we are assigning to the ``Inputs to Emission Equations''
data category in this action, please see Table 3 of the Memorandum
titled ``Final Data Category Assignments and Confidentiality
Determinations for the 2012 Final CBI Rule.''
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In the 2011 Final CBI Rule, the EPA made categorical
confidentiality determinations (i.e., one determination that applies to
all data elements in that category) for 16 data categories (eight
direct emitter data categories and eight supplier data categories). The
categorical determinations for each of these 16 data category are
specified in Tables 3 and 4 of this preamble. In this action, we have
similarly assigned each of the data elements at issue (see Table 1 of
this preamble) to one of the data categories created in the 2011 Final
CBI rule. We have applied the categorical determinations made for 16 of
the data categories to the data elements that assigned to those data
categories.
In the 2011 Final CBI rule, the EPA determined that the data
elements assigned to the remaining five data categories (two direct
emitter data categories (see Table 3 of this preamble) and three
supplier data categories (see Table 4 of this preamble) are not
``emission data'' (as defined at 40 CFR 2.301(a)(2)(i)). However,
instead of categorical determinations, we made final CBI determinations
for individual data elements assigned to those five data categories. In
making these individual CBI determinations, we considered the
confidentiality determination criteria at 40 CFR 2.208, in particular
whether release of the data is likely to cause substantial harm to the
business' competitive position. See 40 CFR 2.208(e)(1). Consistent with
that approach, in this action we determined that data elements
identified in Table 1 of this preamble that are assigned to these five
data categories are not emission data and made final confidentiality
determinations for these data elements in accordance with 40 CFR 2.208.
Table 3--Summary of Final Confidentiality Determinations for Direct
Emitter Data Categories
------------------------------------------------------------------------
Confidentiality determination for data
elements in each category
-----------------------------------------
Data that Data that
Data category are not are not
Emission emission emission
data \a\ data and not data but are
CBI CBI \b\
------------------------------------------------------------------------
Facility and Unit Identifier X ............ ............
Information..................
Emissions..................... X ............ ............
Calculation Methodology and X ............ ............
Methodological Tier..........
Data Elements Reported for X ............ ............
Periods of Missing Data that
are Not Inputs to Emission
Equations....................
Unit/Process ``Static'' ............ X \c\ X \c\
Characteristics that are Not
Inputs to Emission Equations.
Unit/Process Operating ............ X \c\ X \c\
Characteristics that are Not
Inputs to Emission Equations.
Test and Calibration Methods.. ............ X ............
Production/Throughput Data ............ ............ X
that are Not Inputs to
Emission Equations...........
Raw Materials Consumed that ............ ............ X
are Not Inputs to Emission
Equations....................
Process-Specific and Vendor ............ ............ X
Data Submitted in BAMM
Extension Requests...........
------------------------------------------------------------------------
\a\ Under CAA section 114(c), ``emission data'' are not entitled to
confidential treatment. The term ``emission data'' is defined at 40
CFR 2.301(a)(2)(i).
\b\ Section 114(c) of the CAA affords confidential treatment to data
(except emission data) that are considered CBI.
\c\ In the 2011 Final CBI Rule, this data category contains both data
elements determined to be CBI and those determined not to be CBI.
Table 4--Summary of Final Confidentiality Determinations for Supplier
Data Categories
------------------------------------------------------------------------
Confidentiality determinations for data
elements in each category
-----------------------------------------
Data that Data that
Data category are not are not
Emission emission emission
Data \a\ data and not data but are
CBI CBI \b\
------------------------------------------------------------------------
GHGs Reported................. ............ X \c\ X \c\
Production/Throughput ............ X \c\ X \c\
Quantities and Composition...
Identification Information.... ............ X ............
Unit/Process Operating ............ X \c\ X \c\
Characteristics..............
Calculation, Test, and ............ X ............
Calibration Methods..........
Data Elements Reported for ............ X ............
Periods of Missing Data that
are Not Related to Production/
Throughput or Materials
Received.....................
Emission Factors.............. ............ ............ X
Amount and Composition of ............ ............ X
materials received...........
Data Elements Reported for ............ ............ X
Periods of Missing Data That
are Related to Production/
Throughput or Materials
Received.....................
Supplier Customer and Vendor ............ ............ X
Information..................
Process-Specific and Vendor ............ ............ X
Data Submitted in BAMM
Extension Requests...........
------------------------------------------------------------------------
\a\ Under CAA section 114(c), ``emission data'' are not entitled to
confidential treatment. The term ``emission data'' is defined at 40
CFR 2.301(a)(2)(i).
\b\ Section 114(c) of the CAA affords confidential treatment to data
(except emission data) that are considered CBI.
\c\ In the 2011 Final CBI Rule, this data category contains both data
elements determined to be CBI and those determined not to be CBI.
[[Page 48077]]
II. Confidentiality Determinations for Subparts I, W, DD, QQ, RR, SS,
and UU and Responses to Public Comments
A. Final Confidentiality Determinations
In this action, the EPA is finalizing the confidentiality
determinations for Part 98 data elements specified in Table 1 of this
preamble using the approach outlined in Section I.D of this preamble.
The data category assignments and final confidentiality
determinations for the Part 98 data elements specified in Table 1 of
this preamble are provided in the memorandum ``Final Data Category
Assignments and Confidentiality Determinations for the 2012 Final CBI
Rule'' (see Docket EPA-HQ-OAR-2011-0028 and the Web site, http://www.epa.gov/climatechange/emissions/CBI.html).
In Section II.B of this preamble, the EPA describes final
confidentiality determinations and summarizes comments and responses
for direct emitter data elements in subparts I, W, DD, RR, and SS,
which we proposed in 2012 in three actions (see Section I.A.1 of this
preamble). In Section II.C of this preamble, the EPA describes final
confidentiality determinations and summarizes comments and responses
for all supplier data elements in subparts QQ, RR, and UU, which we
proposed in the 2012 CBI re-proposal.
B. Direct Emitter Data Categories
For direct emitter subparts I, W, DD, RR,\6\ and SS, the EPA is
finalizing the assignment of each data element to one of 10 direct
emitter data categories shown in Table 3 of this preamble and the
confidentiality determinations for these data elements. Sections II.B.1
though II.B.3 of this preamble discuss the data category assignments
and confidentiality determinations of direct emitter data elements in
subparts I, W, DD, RR, and SS.
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\6\ Subpart RR contains elements of both direct emitter and
supplier categories and is therefore, listed as both a direct
emitter and a supplier source category. For the purposes of this
action, EPA placed each subpart RR data element into the appropriate
category based on its data type and characteristics, and whether it
related to direct emissions from the facility or to GHG supply.
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1. Subpart I--Electronics Manufacturing
Summary of Changes.
In the subpart I CBI re-proposal, the EPA proposed confidentiality
determinations for certain data elements in this direct emitter
subpart. The EPA received comments raising concerns about finalizing
the confidentiality determinations for some data elements and
requesting the EPA delay finalizing confidentiality determinations for
certain reporting elements until after the EPA has concluded settlement
discussions regarding alternatives to the recipe-specific method for
semiconductor manufacturing facilities. The EPA did not intend to take
action on reporting elements that are currently the subject of these
settlement discussions. Due to the number and complexity of data
elements included in the proposal, the EPA inadvertently included a few
recipe-specific reporting elements that were in data categories for
which we proposed categorical confidentiality determinations. EPA is
therefore not finalizing confidentiality determinations for any recipe-
specific data reporting elements in this action. Additionally, the EPA
does not expect facilities will use the recipe-specific method for the
2011 reporting year; \7\ however, facilities using the recipe-specific
method would report recipe-specific data elements. Before the EPA could
disclose such information, either on its own initiative or upon
request, we would evaluate the confidentiality status of these data
elements on a case-by-case basis, in accordance with existing CBI
regulations in 40 CFR part 2, subpart B. The recipe-specific subpart I
data elements that were inadvertently included in the proposal and have
been removed from this final rule are listed in Table 4 in the
memorandum titled ``Final Data Category Assignments and Confidentiality
Determinations for the 2012 Final CBI Rule.''
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\7\ The Mandatory Reporting of Greenhouse Gases: Changes to
Provisions for Electronics Manufacturing To Provide Flexibility
Final Rule (76 FR 59542, September 27, 2011) allows reporters the
opportunity to report using default emission factors instead of
using the recipe-specific utilization and by-product formation
rates.
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Additionally, for the same reason provided above for recipe-
specific data elements, we have decided to make no confidentiality
determination for one additional data element (the annual manufacturing
capacity of a facility as determined in Equation I-5 (listed at 40 CFR
98.96(a))) because it is also the subject of a petition for
reconsideration of the December 1, 2010 \8\ subpart I rule.
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\8\ 75 FR 74774, December 1, 2010.
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Finally, we are not addressing confidentiality determinations for
data elements in the ``Inputs to Emission Equations'' data category in
this final rule. For the remaining subpart I data elements, we are
finalizing the confidentiality determinations as proposed. The final
confidentiality determinations for these subpart I data elements can be
found in the memorandum, ``Final Data Category Assignments and
Confidentiality Determinations for the 2012 Final CBI Rule.''
Summary of Comments.
This section contains summaries of the significant public comments
and our responses thereto. Additional public comments were also
received. Response to these comments can be found in ``Confidentiality
Determinations in the 2012 CBI re-proposals: Responses to Public
Comments'' in Docket EPA-HQ-OAR-2011-0028 and on the Web site, http://www.epa.gov/climatechange/emissions/CBI.html.
Comment: Two commenters raised concerns about the EPA initiating a
rulemaking to determine the confidentiality status of subpart I data
elements at the same time the EPA is also considering petitions from
the Semiconductor Industry Association for review and reconsideration
of the December 1, 2010 subpart I rule.\9\ The commenters stated that
the initiation of a rule to address confidentiality determinations that
is disconnected from these proceedings may exacerbate instead of
resolve the objections and raises unspecified legal and policy issues.
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\9\ 75 FR 74774, December 1, 2010.
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Response: The EPA did not intend to propose confidentiality
determinations for data elements that relate to portions of subpart I
covered by petitions for reconsideration and review where active
settlement negotiations are ongoing. Thus, we are not issuing
confidentiality determinations for recipe-specific data reporting
elements or for the annual manufacturing capacity in this final rule.
These data elements relate to portions of subpart I addressed in the
petition entitled ``Semiconductor Industry Association Petition for
Reconsideration and Request for Stay Pending Reconsideration of Subpart
I of the Final Rule for Mandatory Reporting of Greenhouse Gases''
(January 31, 2011). However, the EPA does not agree that we need to
wait to finalize confidentiality determinations for non-input data
elements that are outside the scope of that reconsideration petition,
since we do not anticipate proposing any changes in the requirements to
report those data elements. Thus, the EPA is finalizing confidentiality
determinations for those subpart I data elements listed in Table 1 of
the Memorandum, ``Final Data Category Assignments and Confidentiality
Determinations for the 2012 Final CBI Rule.''
Comment: Commenters argued that the release of the following data
elements would reveal trade secrets and intellectual property:
Annual emissions of each fluorinated greenhouse gas (F-
GHG)
[[Page 48078]]
emitted from each process type for which your facility is required to
calculate emissions as calculated in Equations I-6 and I-7. (40 CFR
98.96(c)(1))
Annual emissions of each F-GHG emitted from each process
subtype as calculated in Equations I-8 and I-9. (40 CFR 98.96(c)(2))
Specifically, the commenters stated that the release of these data
elements could allow competitors to more easily reverse-engineer
recipes and back-calculate sensitive information such as the relative
proportion of gas-by-gas usage in a recipe or sub-process type.
Response: The data noted are emission data and, therefore, under
Section 114(c) of the CAA must be made publicly available. In any case,
the reverse engineering which the commenter cites as a potential that
would reveal trade secret information can only be accomplished if more
data is publicly available, in particular certain inputs to emission
equations. The reporting of inputs to emission equations has been
deferred. As discussed in the preamble to the Final Deferral Notice, we
will in the future make a judgement about the sensitivity of deferred
data elements in combination with other data elements.
Comment: Commenters argued that the annual manufacturing capacity
as determined by Equation I-5 of subpart I (40 CFR 98.96(a) and
proposed as non-CBI) should receive confidential treatment as it will
likely generate a capacity different from that reported by the ``World
Fab Forecast,'' which may be instructive to competitors. The commenters
suggested that the EPA either determine that this data element is CBI
or amend subpart I to remove Equation I-5 of subpart I and
alternatively use the maximum manufacturing capacity published by the
``World Fab Forecast.''
Response: For the reason provided previously in this Summary to
Comments section, the EPA is not finalizing the confidentiality
determination for this data element for two reasons. First, this data
element is related to a portion of subpart I addressed in the petition
entitled ``Semiconductor Industry Association Petition for
Reconsideration and Request for Stay Pending Reconsideration of Subpart
I of the Final Rule for Mandatory Reporting of Greenhouse Gases.'' The
EPA is actively engaged in settlement negotiations concerning the
associated petition for review of the December 1, 2010 subpart I rule.
Second, we concluded that making a final confidentiality determination
for this data element would be inappropriate because its sensitivity
varies from reporter to reporter. We will instead evaluate the
confidentiality status of this data element on a case-by-case basis, in
accordance with existing CBI regulations in 40 CFR part 2, subpart B.
2. Subpart W--Petroleum and Natural Gas Systems Summary of Changes
In our subpart W CBI re-proposal, we proposed category assignments
and confidentiality determinations for all of the data elements
reported under subpart W that are not inputs to emission equations. In
this action, we are finalizing without change the category assignments
and confidentiality determinations proposed in the Subpart W CBI re-
proposal. For a list of the final data category assignments and
confidentiality determinations for all of the non-input subpart W data
elements as identified in the Subpart W CBI re-proposal, please see the
memorandum titled ``Final Data Category Assignments and Confidentiality
Determinations for the 2012 Final CBI Rule'' (see Docket EPA-HQ-OAR-
2011-0028 and the GHGRP Web site, http://www.epa.gov/climatechange/emissions/CBI.html).
Summary of Comments.
This section contains summaries of the significant public comments
and our responses thereto. Other public comments were also received.
Responses to these comments can be found in ``Confidentiality
Determinations in the 2012 CBI re-proposals: Responses to Public
Comments'' in Docket EPA-HQ-OAR-2011-0028 and on the Web site, http://www.epa.gov/climatechange/emissions/CBI.html.
Comment: One commenter stated that data reported for exploratory
wells should be held confidential for a period of at least 24 months.
This commenter noted that the oil and gas industry makes substantial
investments in exploration and development projects and that
information regarding exploratory wells is considered to be proprietary
by the industry. They state competitive harm may occur if the public
can obtain detailed high resolution operational information on a well-
by-well basis and on a daily or weekly basis. The commenter also
asserted that the EPA's proposed determinations are inconsistent with
other state and federal regulations that allow information regarding
exploratory wells to be held confidential. The commenter did not
specify which particular data elements would be sensitive for
exploratory wells, but stated that oil and gas reserve information for
new wells, geological assessments of new prospects, drilling plans, and
detailed well-by-well operational information (such as post-flowback
flaring/venting volumes) are considered sensitive. However, the
commenter indicated that the identity and location of exploratory wells
are not sensitive.
Response: We disagree with the commenter's recommendation that all
non-input to emission equations data elements reported for exploratory
wells should be held confidential for a period of two years for the
following reasons. First, many of these data elements meet the
definition of emission data in 40 CFR 2.301(a)(2)(i) because they are
actual GHGs emitted by the facility. Under CAA section 114(c), the EPA
must make available emission data, whether or not such data are CBI.
For the data elements that are assigned to the ``Emissions'' data
category, the commenter did not claim or provide any justification for
why these data elements do not meet the definition of emission data.
Furthermore, the emissions from well venting during completions are
reported at the sub-basin level by well type (horizontal or vertical).
Since the emissions are not reported for each individual well, this
information cannot be used to estimate future production levels or any
other operational information for any individual exploratory well.
With respect to the non-inputs to emission equations data elements
which we proposed would not be emission data but also not CBI, we
disagree that they disclose any CBI relative to exploratory wells for
the following reasons. First, reporters are not required to report
sensitive information on oil and gas reserves, geological assessments
of new prospects, drilling plans, or detailed well-by-well operational
information. As explained in the re-proposal, these non-input data
elements that are not emissions data relate to well completions (e.g.,
number of completions, number of days gas was vented during
completions) and testing (e.g., number of wells tested during the
calendar year, average gas-to-oil ratio for each basin, average number
of days wells are tested). None of these data elements reveal
information regarding the production characteristics or production
rates of any individual production well or the potential production
rates for exploratory wells. The commenter did not explain why these
specific data elements would be likely to cause competitive harm;
rather, the commenter provided only very broad comments that certain
information on exploratory wells can be
[[Page 48079]]
competitively sensitive and did not dispute our rationale that the
specific data elements reported under subpart W were unlikely to cause
substantial competitive harm.
Second, reporters are not required to identify which wells are
exploratory and which are production wells, nor do they report
information for individual wells. The non-input data elements reported
under subpart W are reported for each basin, sub-basin, tubing
diameter/pressure group, or well type (i.e., horizontal or vertical).
For example, the reporting of the number of wells tested in a basin
within a calendar year (40 CFR 98.236(c)(10)(i)) does not provide any
insight into exactly which wells within that basin were tested or
whether the wells are being tested after completion of exploratory
wells or after workovers on existing wells.
Lastly, we disagree that our decision to consider these data
elements to be non-CBI is inconsistent with other state and federal
regulations that allow data for exploratory wells to be held
confidential. The data reported under subpart W does not include any
sensitive information about the underlying geology or potential
productivity of an exploratory well, which are the types of information
being held as confidential under the state and federal rules mentioned
by the commenter. We further note that many of the subpart W data
elements are in fact publicly available. For example, the number of
well completions for each sub-basin (40 CFR 98.236(c)(6)(i)(A) and (G))
is publicly available from commercial databases (e.g., see http://www.didesktop.com/products/) and the EIA.
Therefore, we conclude that our proposed determinations regarding
the non-input data elements are appropriate and finalize those
determinations in this action.
Comment: One commenter disagreed with our proposed determination
that we should afford confidential treatment to the explanation of when
an owner or operator will receive the services or equipment necessary
to comply with subpart W monitoring requirements (40 CFR
98.234(f)(8)(ii)(C)). This commenter argues that disruptions of oil and
gas production from installing monitoring equipment would be brief and
unlikely to cause substantial competitive harm to the reporter's
competitive position.
Response: We disagree with the commenter's assertion that
disruptions from disclosure of this data element would be brief and
therefore unlikely to cause substantial competitive harm to the
reporter's competitive position. As we noted in the preamble to the
Subpart W CBI re-proposal, this data element comprises forward-looking
information about the dates on which an owner or operator will receive
the services or equipment necessary to comply with all of the subpart W
monitoring requirements. This data element would reveal information to
a competitor about when a facility would be installing equipment or
when the facility would plan to perform the necessary modifications to
their processes in order to comply with the rule. The disclosure of
this type of forward-looking information about a facility's operation
provides insight into periods when oil and gas production will be
reduced at a particular site. This type of information can be used to
adjust pricing to take advantage of short-term supply disruptions. Our
decision to make this data element CBI is consistent with our previous
determination in the 2011 Final CBI Rule that the installation date
reported by facilities using BAMM (reported under 40 CFR
98.3(d)(2)(ii)(F)) is entitled to CBI treatment because it provides
forward-looking production-related information that would likely cause
substantial competitive harm if disclosed. Although this commenter
claimed the potential harm from disclosure would be insignificant
because the disruption would be brief, no supporting information was
provided to show that disclosing forward-looking information regarding
a short-term disruption in production would not cause harm to a
reporter's competitive position.
Therefore, we conclude that our proposed determination that this
data element (40 CFR 98.234(f)(8)(ii)(C)) is entitled to confidential
treatment is appropriate; we therefore finalize that determination in
this action.
Comment: One commenter disagreed with the EPA's proposal to defer
the deadline for reporting subpart W data elements used as inputs to
emissions equations until 2015. This commenter alleged that the
proposed deferral of the reporting deadline for all subpart W inputs
was contrary to the intent of the Appropriations Act \10\ by
contravening Congress's mandate to develop a transparent, economy-wide
greenhouse gas inventory. The commenter believes disclosure of the
subpart W inputs to emissions equations would not cause competitive
harm and claimed that disclosure of these data elements was important
for furthering public understanding of the GHG emissions from this
industry.
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\10\ Consolidated Appropriations Act, 2008, Public Law 110-161,
121 Stat. 1844, 2128.
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Response: The EPA has extended the reporting deadlines for inputs
to emission equations data elements in all Part 98 subparts, including
subpart W, in the Final Deferral Notice. As explained in that final
rule, the EPA is evaluating the sensitivity of subpart W equation
inputs together (as with other subparts) and therefore is requiring all
subpart W inputs to be reported by the same deferral deadline.\11\
Today's action simply imposes the same reporting deadline to subpart W
inputs to emission equations that were subsequently added to subpart W
and therefore not included in the Final Deferral Notice.\12\ We are not
revisiting in this action our decision in the Final Deferral Notice to
defer reporting of subpart W equation inputs to 2015. See the Response
to Comments document published with the Final Deferral Notice for more
information on the EPA's rationale for deferring inputs to emission
equations. The commenter did not claim that these remaining subpart W
equation inputs should have a different deadline from the other subpart
W data elements that are inputs to emission equations, nor do we see
any reason to do so. We are therefore finalizing our proposal to defer
reporting of these data elements to 2015.
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\11\ 76 FR 53057, August 25, 2011.
\12\ As mentioned elsewhere in this notice and not relevant to
this specific comment, we are also removing certain subpart W data
elements from the ``Inputs to Emission Equations'' category and
making confidentiality determinations for a number of subpart W data
elements previously assigned to the ``Inputs to Emission Equations''
category.
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3. Subparts DD, RR, and SS
In the 2012 CBI re-proposal, the EPA proposed category assignments
and confidentiality determinations for direct emitter subparts DD and
SS and the direct emitter data elements in subpart RR. The EPA did not
receive comment on the proposed data category assignments or
confidentiality determinations for any data elements in subparts DD and
SS, nor did we receive comment on the proposed data category
assignments or confidentiality determinations for direct emitter data
elements in subpart RR. (We did, however, receive comment on the
proposed confidentiality determinations for supplier data elements in
subpart RR, which are summarized in Section II.C.2 of this preamble.)
The EPA is now finalizing the category assignment and confidentiality
determinations for the subpart DD and SS data elements and subpart RR
direct emitter data elements as proposed. The final category
assignments and confidentiality determinations for these data elements
[[Page 48080]]
can be found in the memorandum, ``Final Data Category Assignments and
Confidentiality Determinations for the 2012 Final CBI Rule.''
C. GHG Supplier Data Categories
For supplier subparts QQ, RR, and UU, the EPA is finalizing the
assignment of each data element to one of 11 supplier data categories.
No change has been made to the data category assignments since
proposal. The following section lists changes since proposal to
confidentiality determinations of supplier data elements assigned to
categories with no categorical determination covered in this action
(organized by supplier subpart). This section also includes summaries
of the major public comments and our responses, organized by subpart.
Other public comments and responses thereto can be found in
``Confidentiality Determinations in the 2012 CBI re-proposals:
Responses to Public Comments'' in Docket EPA-HQ-OAR-2011-0028 and on
the Web site, http://www.epa.gov/climatechange/emissions/CBI.html.
1. Subpart QQ--Importers and Exporters of Fluorinated Greenhouse Gases
Contained in Pre-charged Equipment or Closed-cell Foams
Summary of Changes.
In the 2012 CBI re-proposal, the EPA proposed confidentiality
determinations for data elements in supplier subpart QQ. The EPA
received comments raising concerns that the release of certain data
elements could allow competitors to link import and export data to
publicly available customs data, thereby allowing them to discern
import and export practices and potentially sensitive shipment data. As
discussed in the summary of the comments section below, after
considering these comments, the EPA has decided not to make a final
confidentiality determination for the six subpart QQ data elements that
reveal the date of import or export (see Table 5 of this preamble for
the list of affected data elements). For the remaining subpart QQ data
elements that are not listed in Table 5 of this preamble, we are
finalizing confidentiality determinations as proposed. The final
confidentiality determinations for all subpart QQ data elements can be
found in the Memorandum, ``Final Data Category Assignments and
Confidentiality Determinations for the 2012 Final CBI Rule.''
Table 5--Subpart QQ Data Elements for Which Confidentiality Status Has
Changed Since Proposal
------------------------------------------------------------------------
Finalized data
Data element Citation category and
determination
------------------------------------------------------------------------
Dates on which pre-charged 40 CFR Unit/Process
equipment were imported. 98.436(a)(5). Operating
Characteristics
(``No
determination'').
Dates on which closed-cell 40 CFR Unit/Process
foams were imported. 98.436(a)(5). Operating
Characteristics
(``No
determination'').
If the importer does not know 40 CFR Unit/Process
the identity and mass of the 98.436(a)(6)(iv). Operating
F-GHGs within the closed-cell Characteristics
foam: Dates on which the (``No
closed-cell foams were determination'').
imported.
Dates on which pre-charged 40 CFR Unit/Process
equipment were exported. 98.436(b)(5). Operating
Characteristics
(``No
determination'').
Dates on which closed-cell 40 CFR Unit/Process
foams were exported. 98.436(b)(5). Operating
Characteristics
(``No
determination'').
If the exporter does not know 40 CFR Unit/Process
the identity and mass of the 98.436(b)(6)(iv). Operating
F-GHGs within the closed-cell Characteristics
foam: Dates on which the (``No
closed-cell foams were determination'').
exported.
------------------------------------------------------------------------
Summary of Comments.
This section contains summaries of the significant public comments
and our responses thereto. Additional public comments were also
received. Response to these comments can be found in ``Confidentiality
Determinations in the 2012 CBI re-proposals: Responses to Public
Comments'' in Docket EPA-HQ-OAR-2011-0028 and on the Web site, http://www.epa.gov/climatechange/emissions/CBI.html.
Comment: Two commenters disagreed with EPA's proposed non-CBI
determination for eight data elements in the ``Unit/Process Operating''
Data Category. The commenters claimed that competitors can cross-
reference these data elements with publicly available information to
discern business-sensitive information. These data elements include
(each listing is a separate data element for both importers and
exporters):
Dates on which pre-charged equipment were imported/
exported (40 CFR 98.436(a)(5) and (b)(5));
Dates on which closed-cell foams were imported/exported
(40 CFR 98.436(a)(5) and (b)(5));
If the importer/exporter does not know the identity and
mass of the F-GHGs within the closed-cell foam: Dates on which the
closed-cell foams were imported/exported (40 CFR 98.436(a)(6)(iv) and
(b)(6)(iv)); and
If the importer/exporter does not know the identity and
mass of the F-GHGs within the closed-cell foam: Certification that the
importer/exporter was unable to obtain information on the identity and
mass of the F-GHGs within the closed-cell foam from the closed-cell
foam manufacturer(s) (40 CFR 98.436(a)(6)(vi) and (b)(6)(vi)).
The commenters stated that importers and exporters often submit
confidentiality requests to U.S. Customs and Border Protection (CBP) to
protect as confidential the information contained in the shipment
manifest. In such cases, the CBP protects as confidential the name and
address of the importer or exporter, but allows other information
contained in the manifest to be made public. Since the name and address
of the importer or exporter are held confidential, the commenter stated
that other competitively sensitive information contained in the
manifest, such as shipment data (e.g., type and quantities of products
imported or exported), cannot be attributed to a particular importer or
exporter.
The commenters asserted that the EPA's proposal would undermine
confidentiality requests granted by the CBP because it would release
information on the company name, dates of import/export, and
certification statements that could be cross-referenced with public
information available in manifests. For example, commenters suggested
that the manifest provides information on the country of origin and
type and volumes of commodities imported or exported. This information
is currently available to the public but cannot be linked to a
particular importer or exporter where
[[Page 48081]]
the CBP has granted confidential treatment of the importer or
exporter's name and address.
Response: The EPA agrees with the commenters that competitors could
cross-reference the company name and date of import or export with
publicly available information to discern competitively sensitive
information from the manifest (e.g., country of origin and type and
volume of commodities imported or exported). Pursuant to 19 CFR
103.31(d), CBP keeps the name and address of importers and exporters
confidential where importers and exporters submit a certification
claiming the information in their manifest is confidential. CBP then
keeps the name and address of the importer/exporter confidential for a
period of two years, which can be extended provided the importer/
exporter submits a renewal request within 60 days prior to expiration
of the two year period. Although the EPA was aware that manifest data
was published, we previously considered matching of individual
manifests with the correct importer/exporter would be very difficult.
However, the public can request manifest data for specific dates in
accordance with 19 CFR 103.31(e) and the CBP makes manifest data
(excluding the name and addresses for those claiming confidentiality)
available to the public on CD-ROMs. We also agree with the commenter
that some of the information contained in manifests could be
competitively sensitive for some reporters. For example, the volumes
and types of commodities imported or exported by a company can provide
information on a competitor's annual production data for individual
appliances and foams where the importer/exporter is also the
manufacturer of those products. Such information would provide
competitors with information on the market share of a competitor's
products in the U.S. market (for imports) and in other countries (for
exports). Since the quantity of products imported/exported would be
available from the manifest information on an annual basis, competitors
would have insight into changes in annual sales of a competitor's
products. For example, a decrease in the number of units exported to a
particular market would indicate a declining demand for a competitor's
product in that particular market.
However, we note that the CBP holds the name and addresses of
importers/exporters confidential only when specifically requested by
the importer/exporter and that confidentiality is for a period of only
two years unless a request for extension is made. We also note that
manifest information may not be sensitive for all importers and
exporters. Therefore, the EPA has concluded that the date of import or
export (40 CFR 98.436(a)(5), (a)(6)(iv), (b)(5), and (b)(6)(iv)) may
cause competitive harm for some but not all importers and exporters. As
a result, we are not finalizing a confidentiality determination for
these data elements. We will evaluate the confidentiality status of
these data elements on a case-by-case basis, in accordance with
existing CBI regulations in 40 CFR part 2, subpart B.
The EPA disagrees with comments that releasing certification data
(40 CFR 98.436(a)(6)(vi) and (b)(6)(vi)) would likely cause substantial
competitive harm to the importer or exporter. The certification is a
statement that the importer or exporter was unable to obtain
information on the identity and mass of the fluorinated GHG imported or
exported in foams. The certification statement consists of a statement
indicating whether the reporter was able to obtain information on the
identity and mass of F-GHGs within the imported or exported products,
and does not include any information that a competitor could cross
reference with publicly available information to link manifest data to
a particular reporter. The commenters did not provide any supporting
rationale for how the certification statement, if disclosed, can cause
competitive harm. The EPA has concluded the disclosure of the very
limited information in the certification statement is unlikely to cause
competitive harm; therefore, the EPA is finalizing a determination that
the certification statements (40 CFR 98.436(a)(6)(vi) and (b)(6)(vi))
are not eligible for CBI treatment.
2. Subpart RR--Geologic Sequestration of Carbon Dioxide \13\
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\13\ Subpart RR is neither an exclusively direct emitter nor a
supplier source category, so for the purposes of this action the EPA
assigned each subpart RR data element to one of the two groups based
on its type and characteristics. The EPA assigned subpart RR data
elements that pertain to emissions to one of the direct emitter data
categories and the remaining subpart RR data elements to one of the
supplier data categories.
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Summary of Changes.
In the 2012 CBI re-proposal, the EPA proposed non-CBI
confidentiality determinations for the supplier data elements in
subpart RR. Based on public comment, and for the reasons explained in
the Summary of Comments section below, we have decided not to make CBI
determinations in this final rule for the subpart RR supplier data
elements that are listed in Table 6 of this preamble. We will evaluate
the confidentiality status of these data elements on a case-by-case
basis, in accordance with existing CBI regulations in 40 CFR part 2,
subpart B. The EPA did not receive comments on the remaining subpart RR
data elements, and is finalizing confidentiality determinations as
proposed for the subpart RR data elements that are not listed in Table
6 of this preamble. The final confidentiality determinations for all
subpart RR data elements can be found in the Memorandum, ``Final Data
Category Assignments and Confidentiality Determinations for the 2012
Final CBI Rule'' in Docket EPA-HQ-OAR-2011-0028 and on EPA's Web site
(see http://www.epa.gov/climatechange/emissions/CBI.html).
Table 6--Subpart RR Data Elements for Which Confidentiality Status Has
Changed Since Proposal
------------------------------------------------------------------------
Finalized data
Data element Citation category and
determination
------------------------------------------------------------------------
If you receive CO2 by pipeline, 40 CFR Production/
report the following for each 98.446(a)(1). Throughput
receiving flow meter: Total net Quantities and
mass of CO2 received (metric Composition \a\
tons) annually. (``No
Determination'').
If a volumetric flow meter is 40 CFR Production/
used to receive CO2 report the 98.446(a)(2)(i). Throughput
following unless you reported Quantities and
yes to 40 CFR 98.446(a)(4): Composition (``No
Volumetric flow through a Determination'').
receiving flow meter at
standard conditions (in
standard cubic meters) in each
quarter.
[[Page 48082]]
If a volumetric flow meter is 40 CFR Production/
used to receive CO2 report the 98.446(a)(2)(ii). Throughput
following unless you reported Quantities and
yes to 40 CFR 98.446(a)(4): The Composition (``No
volumetric flow through a Determination'').
receiving flow meter that is
redelivered to another facility
without being injected into
your well (in standard cubic
meters) in each quarter.
If a volumetric flow meter is 40 CFR Production/
used to receive CO2 report the 98.446(a)(2)(iii). Throughput
following unless you reported Quantities and
yes to 40 CFR 98.446(a)(4): CO2 Composition (``No
concentration in the flow Determination'').
(volume percent CO2 expressed
as a decimal fraction) in each
quarter.
If a mass flow meter is used to 40 CFR Production/
receive CO2 report the 98.446(a)(3)(i). Throughput
following unless you reported Quantities and
yes to 40 CFR 98.446(a)(4): The Composition (``No
mass flow through a receiving Determination'').
flow meter (in metric tons) in
each quarter.\1\
If a mass flow meter is used to 40 CFR Production/
receive CO2 report the 98.446(a)(3)(ii). Throughput
following unless you reported Quantities and
yes to 40 CFR 98.446(a)(4): The Composition (``No
mass flow through a receiving Determination'').
flow meter that is redelivered
to another facility without
being injected into your well
(in metric tons) in each
quarter.
If a mass flow meter is used to 40 CFR Production/
receive CO2 report the 98.446(a)(3)(iii). Throughput
following unless you reported Quantities and
yes to 40 CFR 98.446(a)(4): The Composition (``No
CO2 concentration in the flow Determination'').
(weight percent CO2 expressed
as a decimal fraction) in each
quarter.
If you receive CO2 in 40 CFR Production/
containers, report: The mass 98.446(b)(1). Throughput
(in metric tons) or volume at Quantities and
standard conditions (in Composition (``No
standard cubic meters) of Determination'').
contents in containers in each
quarter.
If you receive CO2 in 40 CFR Production/
containers: Concentration of 98.446(b)(2). Throughput
CO2 of contents in containers Quantities and
(volume or wt. % CO2 expressed Composition (``No
as a decimal fraction) in each Determination'').
quarter.
If you receive CO2 in 40 CFR Production/
containers, report: The mass 98.446(b)(3). Throughput
(in metric tons) or volume (in Quantities and
standard cubic meters) of Composition (``No
contents in containers that is Determination'').
redelivered to another facility
without being injected into
your well in each quarter.
If you receive CO2 in 40 CFR Production/
containers: Net mass of CO2 98.446(b)(4). Throughput
received (metric tons) annually. Quantities and
Composition \a\
(``No
Determination'').
If you use more than one 40 CFR 98.446(c).. Production/
receiving flow meter: Total net Throughput
mass of CO2 received (metric Quantities and
tons) through all flow meters Composition \a\
annually. (``No
Determination'').
If the date specified in 40 CFR 40 CFR Production/
98.446(e) is during the 98.446(f)(4)(i). Throughput
reporting year for this annual Quantities and
report, report the following Composition \a\
starting on the date specified (``No
in 40 CFR 98.446(e): For each Determination'').
separator flow meter (mass or
volumetric), report CO2 mass
produced (metric tons) annually.
If the date specified in 40 CFR 40 CFR Production/
98.446(e) is during the 98.446(f)(4)(ii). Throughput
reporting year for this annual Quantities and
report, report the following Composition (``No
starting on the date specified Determination'').
in 40 CFR 98.446(e): For each
separator flow meter (mass or
volumetric), report CO2
concentration in flow (volume
or wt. % CO2 expressed as a
decimal fraction) in each
quarter.
If the date specified in 40 CFR 40 CFR Production/
98.446(e) is during the 98.446(f)(4)(iii). Throughput
reporting year for this annual Quantities and
report, report the following Composition (``No
starting on the date specified Determination'').
in 40 CFR 98.446(e): If a
volumetric flow meter is used,
volumetric flow rate at
standard conditions (standard
cubic meters) in each quarter.
If the date specified in 40 CFR 40 CFR Production/
98.446(e) is during the 98.446(f)(4)(iv). Throughput
reporting year for this annual Quantities and
report, report the following Composition (``No
starting on the date specified Determination'').
in 40 CFR 98.446(e): If a mass
flow meter is used, mass flow
rate (metric tons) in each
quarter.
------------------------------------------------------------------------
\a\ These data elements could have also been placed in the ``Greenhouse
Gases Reported'' data category because the product is also the GHG
reported.
Summary of Comments.
This section contains summaries of the significant public comments
and our responses thereto. Other public comments were also received.
Response to these comments can be found in ``Confidentiality
Determinations in the 2012 CBI re-proposals: Responses to Public
Comments'' in Docket EPA-HQ-OAR-2011-0028 and on the Web site, http://www.epa.gov/climatechange/emissions/CBI.html.
Comment: One commenter that injects CO2 for enhanced oil
and gas recovery (ER) stated that data elements related to the quantity
of CO2 received onsite must be protected as CBI. The
commenter asserted that information on the quantity of CO2
received at individual flow meters and the total quantity of
CO2 received at a facility that conducts ER is not publicly
available. The commenter also disagreed with the EPA's conclusion that
public release of
[[Page 48083]]
the quantity of CO2 received does not create a substantial
competitive disadvantage for the company. Combined with publicly
available information on CO2 pipeline capacities, the
commenter asserted that CO2 suppliers and pipeline
transportation companies could use data on the quantity of
CO2 reported as received by specific facilities to their
advantage in price negotiations on future contracts with the
CO2 purchasers (i.e., the reporting facilities under
subparts RR and UU). The commenter stated that this risk is amplified
because there are so few CO2 suppliers in the market.
Response: EPA had proposed that the data elements in Table 6, which
relate to the quantity of CO2 received onsite, are not CBI
on the basis that they are either publicly available or may be derived
from publicly available data. However, the commenter claims this is not
the case for data from facilities that conduct ER. Our initial review
of available information lends support to the comment, which suggests
that EPA may need to assess the confidentiality determination of these
data elements separately for ER and non-ER facilities. However, EPA had
not analyzed these data elements in Table 6 separately for ER and non-
ER activities in the re-proposal. Further, facilities subject to the
reporting requirements in Table 6 are not required to include in their
annual report whether they are conducting ER. Therefore, even if EPA
were to make separate determinations in this final rule for ER and non-
ER facilities, EPA would not be able to withhold or disclose any of the
data elements in Table 6 upon finalizing and in accordance with the
determinations, which is the reason for making these confidentiality
determinations through rulemaking. See 40 CFR 2.301(d). EPA would need
additional information, in particular whether the facilities conduct
ER, before it can complete its confidentiality determinations for any
of these data. In light of the above, the EPA is not making a
confidentiality determination for the data elements in Table 6 in this
final rule. Should we decide to make available any of these data in the
future, we will at that time evaluate the confidentiality status of
these data elements on a case-by-case basis, in accordance with
existing CBI regulations in 40 CFR part 2, subpart B.
Comment: One commenter that conducts ER asserted that certain data
elements related to the quantity of produced CO2 measured at
a separator meter should be protected as CBI. This commenter stated
that the total mass of produced CO2 by well or within a
field is not already in the public domain and that the fact that some
data from ER wells is publicly available does not demonstrate that
publication of this data would not cause competitive harm.
The commenter asserted that CO2 is an essential
commodity in ER projects, and because of its cost, companies go to
great lengths to use it efficiently and to recycle as much of it as
possible. The commenter stated that publication of produced
CO2 data, when coupled with publicly available information
on oil and gas production by well, would enable competitors to
calculate CO2 utilization rates for both individual wells
and fields. The commenter noted that because this data would be
available annually, it would be possible to track changes in
CO2 utilization over time. The commenter stated that from
these CO2 utilization rates, competitors would gain insight
into production costs, as well as information on how the reservoir was
performing over time. The commenter stated that this information could
be used in contract negotiations for CO2 supply, as well as
enabling competitors to fine tune investment, acquisition, and
development strategies.
The commenter also asserted that if data on the quantities of both
injected CO2 and produced CO2 are publicly
available, competitors can determine the quantity of CO2
received by a site, because the total quantity of CO2
injected equals the amount of CO2 received on site plus the
amount of CO2 produced, less any surface emissions (which
will be made public under subpart RR because they are ``emission
data'').
Response: After reviewing the additional information provided by
the commenter, the EPA agrees that the mass of produced CO2
measured at a separator meter could be sensitive information for some
facilities that report under Subpart RR and not for others. Therefore,
the EPA decided not to make categorical confidentiality determinations
for the data elements related to the mass of produced CO2
measured per separator meter at this time (40 CFR 98.446(f)(4)(i)
through (iv) listed in Table 6 of this preamble). We will evaluate the
confidentiality status of these data elements on a case-by-case basis,
in accordance with existing CBI regulations in 40 CFR part 2, subpart
B.
3. Subpart UU--Injection of Carbon Dioxide
Summary of Changes.
In the 2012 CBI re-proposal, the EPA proposed confidentiality
determinations for subpart UU.\14\ We received comment that, for ER
projects, information related to the quantity of CO2
received is not publicly available and may be likely to cause
substantial competitive harm if made publicly available. For the
reasons explained below, we have determined that the data elements that
are listed in Table 7 of this preamble are CBI for facilities without
an EPA-approved subpart RR R&D project exemption and non-CBI for
facilities with an EPA-approved subpart RR R&D project exemption. The
EPA did not receive comments on the remaining subpart UU data elements,
and is finalizing confidentiality determinations as proposed for the
subpart UU data elements that are not listed in Table 7 of this
preamble. The final confidentiality determinations for all subpart UU
data elements can be found in the Memorandum, ``Final Data Category
Assignments and Confidentiality Determinations for the 2012 Final CBI
Rule'' in Docket EPA-HQ-OAR-2011-0028 and on the EPA's Web site (see
http://www.epa.gov/climatechange/emissions/CBI.html).
---------------------------------------------------------------------------
\14\ Subpart UU is neither a direct emitter nor a supplier
source category; for the purposes of this action, the EPA assigned
the subpart UU data elements to one of the supplier data categories
because they are most similar in type and characteristics to
supplier data.
Table 7--Subpart UU Data Elements With Changed Confidentiality Determinations Since Proposal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Finalized data category and CBI Finalized data category and CBI
Data element Citation determination for facilities without an determination for facilities with an R&D
R&D exemption exemption
--------------------------------------------------------------------------------------------------------------------------------------------------------
If you receive CO2 by pipeline, report 40 CFR.................. GHGs Reported and Production/Throughput Production/Throughput Quantities and
the following for each receiving flow 98.476(a)(1)............ Quantities and Composition \a\ (CBI). Composition \a\ (non-CBI).
meter: Total net mass of CO2 received
(metric tons) annually.
[[Page 48084]]
If you receive CO2 by pipeline, report 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
the following for each receiving flow 98.476(a)(2)(i)......... Composition (CBI). Composition (non-CBI).
meter: If a volumetric flow meter is
used to receive CO2: Volumetric flow
through a receiving flow meter at
standard conditions (standard cubic
meters) in each quarter.
If you receive CO2 by pipeline, report 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
the following for each flow meter: If 98.476(a)(2)(ii)........ Composition (CBI). Composition (non-CBI).
a volumetric flow meter is used to
receive CO2: The volumetric flow
through a receiving flow meter that is
redelivered to another facility
without being injected into your well
(standard cubic meters) in each
quarter.
If you receive CO2 by pipeline, report 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
the following for each receiving flow 98.476(a)(2)(iii)....... Composition (CBI). Composition (non-CBI).
meter: If a volumetric flow meter is
used to receive CO2: CO2 concentration
in the flow (volume % CO2 expressed as
a decimal fraction) in each quarter.
If you receive CO2 by pipeline, report 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
the following for each flow meter: If 98.476(a)(3)(i)......... Composition (CBI). Composition (non-CBI).
a mass flow meter is used to receive
CO2, report the mass flow through a
receiving flow meter (in metric tons)
in each quarter.
If you receive CO2 by pipeline, report 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
the following for each flow meter: If 98.476(a)(3)(ii)........ Composition (CBI). Composition (non-CBI).
a mass flow meter is used to receive
CO2, report the mass flow through a
receiving flow meter that is
redelivered to another facility
without being injected into your well
(in metric tons) in each quarter.
If you receive CO2 by pipeline, report 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
the following for each flow meter: If 98.476(a)(3)(iii)....... Composition (CBI). Composition (non-CBI).
a mass flow meter is used to receive
CO2, report CO2 concentration in the
flow (wt. % CO2 expressed as a decimal
fraction) in each quarter.
If you receive CO2 in containers, 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
report: The mass (metric tons) or 98.476(b)(1)............ Composition (CBI). Composition (non-CBI).
volume at standard conditions
(standard cubic meters) of contents in
containers in each quarter.
If you receive CO2 in containers, 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
report: The concentration of CO2 of 98.476(b)(2)............ Composition (CBI). Composition (non-CBI).
contents in containers (volume or wt.
% CO2 expressed as a decimal fraction)
in each quarter.
If you receive CO2 in containers, 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
report: The mass (metric tons) or 98.476(b)(3)............ Composition (CBI). Composition (non-CBI).
volume (standard cubic meters) of
contents in containers that is
redelivered to another facility
without being injected into your well
in each quarter.
If you receive CO2 in containers, 40 CFR.................. Production/Throughput Quantities and Production/Throughput Quantities and
report: The net total mass of CO2 98.476(b)(4)............ Composition \a\ (CBI). Composition \a\ (non-CBI).
received (in metric tons) annually.
If you use more than one receiving flow 40 CFR.................. GHGs Reported and Production/Throughput Production/Throughput Quantities and
meter, report the net total mass of 98.476(c)............... Quantities and Composition \a\ (CBI). Composition \a\ (non-CBI).
CO2 received (metric tons) through all
flow meters annually.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ These data elements could have also been placed in the ``Greenhouse Gases Reported'' data category because the product is also the GHG reported.
Summary of Comments.
This section contains summaries of the significant public comments
and our responses thereto. Other public comments were also received.
Response to these comments can be found in ``Confidentiality
Determinations in the 2012 CBI re-proposals: Responses to Public
Comments'' in Docket EPA-HQ-OAR-2011-0028 and on the Web site, http://www.epa.gov/climatechange/emissions/CBI.html.
Comment: One commenter that injects CO2 for ER stated
that certain data elements related to the quantity of CO2
received on-site must be protected as CBI. The commenter asserted that
information on the quantity of CO2 received at individual
flow meters and the total quantity of CO2 received at a
facility that conducts ER is not publicly available. The commenter also
disagreed with the EPA's conclusion that public release of the quantity
of CO2 received does not create a substantial competitive
disadvantage for the company. The commenter asserted that, combined
with publicly available information on CO2 pipeline
capacities, CO2 suppliers and pipeline transportation
companies could use data on the quantity of CO2 reported as
received by specific facilities to their advantage in price
negotiations on future contracts with the CO2 purchasers
(i.e., the reporting facilities under subparts RR and UU). The
commenter stated that this risk is amplified because there are so few
CO2 suppliers in the market.
Response: After reviewing the additional information provided by
the commenter, the EPA agrees that the quantity of CO2
reported as received on site could be sensitive information. The EPA
proposed that the data elements related to the quantity of
CO2 received would not be entitled to CBI protection because
we believed that none of the data elements on CO2 received
included information on CO2 prices or contract terms, and
would not allow a competitor to deduce the reporter's operating costs
and cause competitive harm. After reviewing this comment and
[[Page 48085]]
publicly available information, the EPA agrees that facilities that
report under subpart UU and conduct ER activities are likely to
experience substantial competitive harm if data on CO2
received were released to the public. As the commenter notes, the
information on the quantity of CO2 received per flow meter
or per reporting facility is not publicly available. If this data were
public, knowledge of a CO2-ER purchaser's demand for
CO2 could give the CO2 suppliers an unfair
advantage in price negotiations. In addition, a small number of
companies supply most of the CO2 to the economy, which
further exacerbates the CO2-ER purchaser's competitive
disadvantage. The majority of CO2 sold to ER operations in
the United States is produced from natural CO2 bearing
formations. According to Reporting Year 2010 data from the Greenhouse
Gas Reporting Program, two companies dominated the CO2
supply market, producing approximately 80 percent of the CO2
available for purchase from natural CO2 bearing
formations.\15\
---------------------------------------------------------------------------
\15\ See www.ghgdata.epa.gov.
---------------------------------------------------------------------------
In addition to facilities that conduct ER, acid gas operations
(facilities that separate a CO2 stream during natural gas
processing and inject it underground) will report under subpart UU. The
amount of CO2 separated in acid gas operations is reported
by these facilities under subpart PP. These facilities are allowed to
report the amount of CO2 received under subpart UU by using
the amount of CO2 reported under subpart PP, following the
subpart PP methods and requirements.\16\ This subpart PP data was
determined to be CBI in the 2011 Final CBI rule. Therefore, the EPA has
decided to change the confidentiality determination to treat as CBI 12
subpart UU data elements related to the quantity of CO2
received (see Table 7 of this preamble for the list of affected data
elements).
---------------------------------------------------------------------------
\16\ 40 CFR 98.474(a)(1)(iii) and (a)(3)(iii).
---------------------------------------------------------------------------
Other than facilities conducting ER or acid gas operations, the
facilities that must report under subpart UU include facilities that
have received a Research and Development (R&D) project exemption from
subpart RR. The EPA notes that data on the quantity of CO2
received would not be competitively sensitive for facilities that have
received an R&D project exemption from subpart RR. It is standard
practice that CO2 that is received by non-ER facilities for
R&D geologic sequestration projects is wholly injected underground
without a recycled component. The quantity of CO2 injected
for these projects is readily available from public sources and thus
the quantity of CO2 received by these projects is widely
known.\17\ The EPA has concluded that the disclosure of the amount of
CO2 received is unlikely to cause competitive harm to
facilities with a R&D project exemption. Therefore, the EPA is
finalizing a determination that for the subcategory of subpart UU
reporters that have received an R&D project exemption from subpart RR,
the 12 data elements related to CO2 received are not
eligible for CBI treatment and will not be protected as CBI (see Table
7 of this preamble for the list of affected data elements).
---------------------------------------------------------------------------
\17\ For example, see the proceedings of the Department of
Energy National Energy Technology Laboratory Carbon Storage Program
Infrastructure Annual Review Meeting.
---------------------------------------------------------------------------
III. Confidentiality Determinations for New Data Elements in Subparts
II and TT and Responses to Public Comments
The Technical Corrections final rule, which was issued after the
2011 Final CBI Rule, added seven new non-input data elements to
subparts II and TT. Confidentiality determinations for the remainder of
the data elements in these subparts have already been finalized in the
2011 Final CBI Rule. Subsequent to the 2011 Final CBI Rule, we proposed
category assignments and confidentiality determinations for these new
data elements in the 2012 CBI re-proposal. The EPA did not receive any
comment on the data category assignments or confidentiality
determinations for any data elements for which we proposed
confidentiality determinations for these two subparts in the 2012 CBI
re-proposal. Thus, the EPA is finalizing confidentiality determinations
for these new subpart II and TT data elements as proposed. The final
confidentiality determinations for these new subpart II and TT data
elements can be found in the memorandum, ``Final Data Category
Assignments and Confidentiality Determinations for the 2012 Final CBI
Rule.''
IV. Amendments to Table A-6 and A-7 To Defer Reporting of Certain
Inputs to Emission Equations in Subparts W, FF and TT
We are finalizing the proposed amendments made in the Subpart W CBI
re-proposal to Table A-7 of subpart A, which included amendments to
address the renumbering of 11 inputs, the addition of 10 new inputs,
and the deletion of 21 data elements that were re-categorized to other
data categories because the data elements are not the actual values
used in the equations. (The deletions recognized, for example, the
distinction between individual measured values used to calculate
emissions, which are inputs, and the reported average of these measured
values, which is not used as an input to emissions equations.) We are
finalizing these amendments as proposed with the exception that we are
correcting a typographical error in the Subpart W CBI re-proposal by
replacing the word ``required'' with ``recovered'' in two entries (40
CFR 98.236(c)(6)(i)(G) and (H)) for subpart W of Table A-7 of subpart A
of Part 98. We are finalizing Table A-7 of subpart A with this minor
wording change in response to public comment and to more accurately
reflect the actual reporting requirements. As proposed in the Subpart W
CBI re-proposal, we are deferring the deadline for reporting all
subpart W inputs until March 31, 2015 to allow sufficient time to: (1)
Evaluate the extent to which potential competitive harm may result if
any of the inputs to equations were reported and made publicly
available; and (2) determine whether emissions can be calculated or
verified using additional methodologies, consistent with the
transparency and accuracy goals of Part 98.
The Technical Corrections final rule added one new subpart TT data
element that is used as an input to an emission equation (the methane
correction factor (MCF) value used in the calculations (40 CFR
98.446(b)(4)). In the 2012 CBI re-proposal, we proposed to assign this
data element to the inputs to equations category. We also proposed that
this data element be added to Table A-6 of subpart A to defer its
reporting to March 31, 2013. We received no comments on the proposal
described above. The EPA is therefore finalizing the assignment of this
data element to the ``Inputs to Emission Equations'' data category and
its addition to Table A-6 of subpart A to require its reporting by
March 31, 2013.
The Technical Corrections final rule similarly added two new
subpart FF data elements that are used as inputs to emission equations:
Moisture content used in Equation FF-1 and FF-3 (40 CFR
98.326(o)).
The gaseous organic concentration correction factor used,
if Equation FF-9 was required (40 CFR 98.326(o)).
In the 2012 CBI re-proposal, we proposed to assign these two data
elements in 98.236(o) to the ``Inputs to Emission Equations'' data
category and defer their reporting deadline to March 31, 2013. As
explained in the proposed rule, the paragraph citation for these two
data elements (40 CFR 98.326(o)) is already included in Table A-6 of
subpart A deferring the reporting
[[Page 48086]]
deadline until March 31, 2013; therefore, no amendment to Table A-6 of
subpart A is required to defer their reporting to March 31, 2013. We
received no public comments on our proposal, and we are finalizing the
category assignment and deferral of the reporting deadline for these
two new subpart FF data elements as proposed.
In the Technical Corrections final rule, we also re-numbered the
rule citations for three subpart TT data reporting elements. In the
2012 CBI re-proposal, the EPA proposed to amend Table A-6 of subpart A
list of paragraph references for subpart TT data elements to reflect
the revision to the paragraph citations. We did not receive any
comment, and we are finalizing as proposed the amendments to Table A-6
of subpart A in this action.
V. Background and Amendments to the Best Available Monitoring Method
for Subpart I
A. Background
Following the publication of the final subpart I rule,\18\ an
industry association requested reconsideration of numerous provisions
in the final rule. The final amendments in this action are in response
to the request for reconsideration of the specific provision that
requires facilities that have been granted extensions to use BAMM to
recalculate their emissions for the time period for which BAMM was used
at a later date using methods that are fully compliant with subpart I.
---------------------------------------------------------------------------
\18\ 75 FR 74774, December 1, 2010.
---------------------------------------------------------------------------
B. Amendments to the Best Available Monitoring Method Provisions for
Subpart I
For the reasons explained in Section IV of the subpart I CBI re-
proposal, we are finalizing amendments to the subpart I BAMM
provisions. These amendments to subpart I eliminate the requirement
that facilities granted an extension to use BAMM must recalculate and
resubmit the emissions estimate for the BAMM extension period. The EPA
received comments in support of these amendments and no comments
opposing them. Accordingly, we are finalizing as proposed these
amendments to subpart I.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action, which finalizes confidentiality determinations for
data elements in the 9 subparts included in the preamble, finalizes
amendments to subpart A of Part 98, and removes the requirement that
facilities that are granted an extension to use BAMM must recalculate
and resubmit the emissions estimate for the BAMM extension period 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 Executive Orders 12866 and 13563 (76 FR 3821, January
21, 2011).
B. Paperwork Reduction Act
This action, which finalizes confidentiality determinations for
data elements in the 9 subparts included in the preamble, finalizes
amendments to subpart A of Part 98, and removes the requirement that
facilities that are granted an extension to use BAMM must recalculate
and resubmit the emissions estimate for the BAMM extension period does
not impose any new information collection burden and does not increase
the existing reporting burden. The Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in these subparts, under 40 CFR part 98, under the provisions
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information
Collection Request (ICR) documents prepared by the EPA have been
assigned the following OMB control numbers: 2060-0650, for subparts I,
DD, and SS; 2060-0651, for subpart W; 2060-0649, for subparts RR and
UU; and 2060-0647 for subparts FF, II, and TT. The OMB control numbers
for EPA's regulations in 40 CFR are listed at 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act (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 rule on small
entities, a small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) 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 today's final rule on
small entities, I certify that this action will 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 a regulatory flexibility analyses is to identify and
address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603,604.
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, has no burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. This
action, which finalizes confidentiality determinations for data
elements in the 9 subparts included in the preamble, finalizes
amendments to subpart A of Part 98, and removes the requirement that
facilities that are granted an extension to use BAMM must recalculate
and resubmit the emissions estimate for the BAMM extension period does
not increase the existing reporting burden on small entities. We have
therefore concluded that today's final rule will relieve or have no
burden on small entities subject to the rule.
D. Unfunded Mandates Reform Act (UMRA)
These final rule amendments and confidentiality determinations do
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 amendment to
subpart I removes the requirement that facilities that are granted an
extension to use BAMM must recalculate and resubmit the emissions
estimate for the BAMM extension period and the confidentiality
determinations are administrative in nature and do not increase the
costs of compliance for facilities to comply with Part 98. Thus, this
rule is not subject to the requirements of sections 202 or 205 of the
UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. The confidentiality
determinations for data
[[Page 48087]]
elements that this action finalizes are administrative in nature, and
this action removes the requirement that facilities that are granted an
extension to use BAMM must recalculate and resubmit the emissions
estimate for the BAMM extension period.
E. Executive Order 13132: Federalism
This action, which finalizes confidentiality determinations for
data elements in the 9 subparts included in the preamble, finalizes
amendments to subpart A of Part 98, and removes the requirement that
facilities that are granted an extension to use BAMM must recalculate
and resubmit the emissions estimate for the BAMM extension period 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. For a more detailed discussion about how Part
98 relates to existing state programs, please see Section II of the
preamble to the final Greenhouse Gas Reporting Rule (74 FR 56266,
October 30, 2009).
This action applies to suppliers of GHGs and facilities that
directly emit GHGs above threshold levels. Relatively few government
facilities are affected by this action since Part 98 applies only to
government entities that own a facility that directly emits GHGs above
threshold levels. This action also does not limit the power of states
or localities to collect GHG data and/or regulate GHG emissions, nor
does it directly affect the power of states or localities to disclose
or protect information reported to those states or localities. Thus,
Executive Order 13132 does not apply to this action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action, which finalizes confidentiality determinations for
data elements in the 9 subparts included in the preamble, finalizes
amendments to subpart A of Part 98, and removes the requirement that
facilities that are granted an extension to use BAMM must recalculate
and resubmit the emissions estimate for the BAMM extension period does
not have tribal implications, as specified in Executive Order 13175 (65
FR 67249, November 9, 2000). This action does not increase the
reporting burden. Thus, Executive Order 13175 does not apply to this
action. For a summary of the EPA's consultations with tribal
governments and representatives, see Section VIII.F of the preamble to
the final Greenhouse Gas Reporting Rule (74 FR 56371, October 30,
2009).
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The 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, which finalizes confidentiality determinations for
data elements in the 9 subparts included in the preamble, finalizes
amendments to subpart A of Part 98, and removes the requirement that
facilities that are granted an extension to use BAMM must recalculate
and resubmit the emissions estimate for the BAMM extension period 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, 12(d) (15 U.S.C. 272 note)
directs the 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 the EPA to provide
Congress, through OMB, explanations when the agency decides not to use
available and applicable voluntary consensus standards.
This final action, which finalizes confidentiality determinations
for data elements in the 9 subparts included in the preamble, finalizes
amendments to subpart A of Part 98, and removes the requirement that
facilities that are granted an extension to use BAMM must recalculate
and resubmit the emissions estimate for the BAMM extension period does
not add any new technical standards or revise any existing technical
standards included in Part 98. Therefore, the EPA did not consider 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 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.
The EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations. This final rule does not
affect the level of protection provided to human health or the
environment because it addresses information collection and reporting
procedures.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. The EPA will submit a report containing
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). Therefore, this rule will be effective on September 12, 2012,
except for the amendments to Tables A-6 and A-7 of 40 CFR part 98
subpart A and the amendments to 40 CFR part 98 subpart I (section
98.94(a)(2)(iii), (a)(3)(iii), and (a)(4)(iii), which are effective on
August 13, 2012.
List of Subjects in 40 CFR Part 98
Environmental protection, Administrative practice and procedure,
[[Page 48088]]
Greenhouse gases, Reporting and recordkeeping requirements.
Dated: August 2, 2012.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble, title 40, chapter I, of the
Code of Federal Regulations is amended as follows:
PART 98--[AMENDED]
0
1. The authority citation for Part 98 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
0
2. Table A-6 to subpart A of Part 98 is amended by revising the entries
for subpart TT to read as follows:
Table A-6 to Subpart A of Part 98--Data Elements That Are Inputs to
Emission Equations and for Which the Reporting Deadline Is March 31,
2013
------------------------------------------------------------------------
Specific data elements
for which reporting date
is March 31, 2013
Rule citation (40 CFR (``All'' means all data
Subpart part 98) elements in the cited
paragraph are not
required to be reported
until March 31, 2013)
------------------------------------------------------------------------
* * * * * * *
TT.................... 98.466(a)(2)......... All.
TT.................... 98.466(a)(3)......... Only last year the
landfill accepted waste
(for closed landfills
using Equation TT-4).
TT.................... 98.466(a)(4)......... Only capacity of the
landfill in metric tons
(for closed landfills
using Equation TT-4).
TT.................... 98.466(b)(3)......... Only fraction of CH4 in
landfill gas.
TT.................... 98.466(b)(4)......... Only the methane
correction factor (MCF)
value used in the
calculations.
TT.................... 98.466(c)(1)......... All.
TT.................... 98.466(c)(4)(i)...... All.
TT.................... 98.466(c)(4)(ii)..... All.
TT.................... 98.466(c)(4)(iii).... All.
TT.................... 98.466(d)(2)......... All.
TT.................... 98.466(d)(3)......... Only degradable organic
carbon (DOCx) value used
in calculations.
TT.................... 98.466(e)(2)......... Only surface area (in
square meters) at the
start of the reporting
year for the landfill
sections that contain
waste and that are
associated with the
selected cover type (for
facilities using a
landfill gas collection
system).
TT.................... 98.466(f)............ All.
------------------------------------------------------------------------
0
3. Table A-7 to subpart A of Part 98 is amended by revising the entries
for subpart W to read as follows:
Table A-7 to Subpart A of Part 98--Data Elements That Are Inputs to Emission Equations and for Which the
Reporting Deadline Is March 31, 2015
----------------------------------------------------------------------------------------------------------------
Specific Data Elements for Which Reporting Date is March 31, 2015
Subpart Rule Citation (40 CFR (``All'' means all data elements in the cited paragraph are not
part 98) required to be reported until March 31, 2015)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
W..................... 98.236(c)(1)(i)...... All.
W..................... 98.236(c)(1)(ii)..... All.
W..................... 98.236(c)(1)(iii).... All.
W..................... 98.236(c)(2)(i)...... All.
W..................... 98.236(c)(3)(i)...... All.
W..................... 98.236(c)(3)(ii)..... Only Calculation Methodology 2.
W..................... 98.236(c)(3)(iii).... All.
W..................... 98.236(c)(3)(iv)..... All.
W..................... 98.236(c)(4)(i)(A)... All.
W..................... 98.236(c)(4)(i)(B)... All.
W..................... 98.236(c)(4)(i)(C)... All.
W..................... 98.236(c)(4)(i)(D)... All.
W..................... 98.236(c)(4)(i)(E)... All.
W..................... 98.236(c)(4)(i)(F)... All.
W..................... 98.236(c)(4)(i)(G)... All.
W..................... 98.236(c)(4)(i)(H)... All.
W..................... 98.236(c)(4)(ii)(A).. All.
W..................... 98.236(c)(5)(i)(D)... All.
W..................... 98.236(c)(5)(ii)(C).. All.
W..................... 98.236(c)(6)(i)(B)... All.
W..................... 98.236(c)(6)(i)(D)... All.
W..................... 98.236(c)(6)(i)(E)... All.
W..................... 98.236(c)(6)(i)(F)... All.
W..................... 98.236(c)(6)(i)(G)... Only the amount of natural gas required.
W..................... 98.236(c)(6)(i)(H)... Only the amount of natural gas required.
W..................... 98.236(c)(6)(ii)(A).. All.
[[Page 48089]]
W..................... 98.236(c)(6)(ii)(B).. All.
W..................... 98.236(c)(7)(i)(A)... Only for Equation W-14A.
W..................... 98.236(c)(8)(i)(F)... All.
W..................... 98.236(c)(8)(i)(K)... All.
W..................... 98.236(c)(8)(ii)(A).. All.
W..................... 98.236(c)(8)(ii)(H).. All.
W..................... 98.236(c)(8)(iii)(A). All.
W..................... 98.236(c)(8)(iii)(B). All.
W..................... 98.236(c)(8)(iii)(G). All.
W..................... 98.236(c)(12)(ii).... All.
W..................... 98.236(c)(12)(v)..... All.
W..................... 98.236(c)(13)(i)(E).. All.
W..................... 98.236(c)(13)(i)(F).. All.
W..................... 98.236(c)(13)(ii)(A). All.
W..................... 98.236(c)(13)(ii)(B). All.
W..................... 98.236(c)(13)(iii)(A) All.
W..................... 98.236(c)(13)(iii)(B) All.
W..................... 98.236(c)(13)(v)(A).. All.
W..................... 98.236(c)(14)(i)(B).. All.
W..................... 98.236(c)(14)(ii)(A). All.
W..................... 98.236(c)(14)(ii)(B). All.
W..................... 98.236(c)(14)(iii)(A) All.
W..................... 98.236(c)(14)(iii)(B) All.
W..................... 98.236(c)(14)(v)(A).. All.
W..................... 98.236(c)(15)(ii)(A). All.
W..................... 98.236(c)(15)(ii)(B). All.
W..................... 98.236(c)(16)(viii).. All.
W..................... 98.236(c)(16)(ix).... All.
W..................... 98.236(c)(16)(x)..... All.
W..................... 98.236(c)(16)(xi).... All.
W..................... 98.236(c)(16)(xii)... All.
W..................... 98.236(c)(16)(xiii).. All.
W..................... 98.236(c)(16)(xiv)... All.
W..................... 98.236(c)(16)(xv).... All.
W..................... 98.236(c)(16)(xvi)... All.
W..................... 98.236(c)(17)(ii).... All.
W..................... 98.236(c)(17)(iii)... All.
W..................... 98.236(c)(17)(iv).... All.
W..................... 98.236(c)(18)(i)..... All.
W..................... 98.236(c)(18)(ii).... All.
W..................... 98.236(c)(19)(iv).... All.
W..................... 98.236(c)(19)(vii)... All.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Subpart I--[Amended]
0
4. Section 98.94 is amended by revising paragraphs (a)(2)(iii),
(a)(3)(iii), and (a)(4)(iii) to read as follows:
Sec. 98.94 Monitoring and QA/QC requirements.
(a) * * *
(2) * * *
(iii) Approval criteria. To obtain approval, the owner or operator
must demonstrate to the Administrator's satisfaction that by July 1,
2011, it is not reasonably feasible to acquire, install, or operate the
required piece of monitoring equipment, or procure necessary
measurement services to comply with the requirements of this subpart.
(3) * * *
(iii) Approval criteria. To obtain approval, the owner or operator
must demonstrate to the Administrator's satisfaction that by December
31, 2011 it is not reasonably feasible to acquire, install, or operate
the required piece of monitoring equipment or procure necessary
measurement services to comply with the requirements of this subpart.
(4) * * *
(iii) Approval criteria. To obtain approval, the owner or operator
must demonstrate to the Administrator's satisfaction that by December
31, 2011 (or in the case of facilities that are required to calculate
and report emissions in accordance with Sec. 98.93(a)(2)(ii)(A),
December 31, 2012), it is not reasonably feasible to acquire, install,
or operate the required piece of monitoring equipment according to the
requirements of this subpart.
* * * * *
[FR Doc. 2012-19559 Filed 8-10-12; 8:45 am]
BILLING CODE 6560-50-P