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[Federal Register: September 22, 2010 (Volume 75, Number 183)]
[Rules and Regulations]               
[Page 57669-57686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22se10-7]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 98

[EPA-HQ-OAR-2009-0925; FRL-9204-7]
RIN 2060-AQ02

 
Mandatory Reporting of Greenhouse Gases

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action amends the Final Mandatory Reporting of Greenhouse 
Gases Rule to require reporters subject to the rule to provide: The 
name, address, and percentage ownership of their U.S. parent 
company(s); their primary North American Industry Classification System 
code(s) as well as all additional applicable North American Industry 
Classification System code(s); and an indication of whether or not any 
of their reported emissions are from a cogeneration unit. This final 
action also corrects an editorial error in revisions made to the 
General Provisions published earlier this year.

DATES: The final rule is effective on November 22, 2010.

[[Page 57670]]

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2009-0925. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not 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 will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
EPA's Docket Center, Public Reading Room, EPA West Building, Room 3334, 
1301 Constitution Avenue, NW., Washington, DC 20004. 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: For technical information and 
implementation materials, please go to the Web site http://www.epa.gov/climatechange/emissions/ghgrulemaking.html. To submit a question, 
select Rule Help Center, followed by Contact Us. You may also contact 
Carole Cook, Climate Change Division, Office of Atmospheric Programs 
(MC-6207J), Environmental Protection Agency, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460; telephone number: (202) 343-9263; fax 
number: (202) 343-2342; e-mail address: GHGMRR@epa.gov.

SUPPLEMENTARY INFORMATION: Regulated Entities. This amendment to 40 CFR 
part 98 affects facilities that are direct emitters of GHGs, and 
suppliers of fuels and industrial gases that are already subject to the 
rule. Regulated categories and entities include those listed in Table 1 
of this preamble.

           Table 1--Examples of Regulated Entities by Category
------------------------------------------------------------------------
                                                   Examples of regulated
           Category                NAICS Code             entities
------------------------------------------------------------------------
General Stationary Fuel        ..................  Facilities operating
 Combustion Sources.                                boilers, process
                                                    heaters,
                                                    incinerators,
                                                    turbines, and
                                                    internal combustion
                                                    engines:
                                              211  Extractors of crude
                                                    petroleum and
                                                    natural gas.
                                              321  Manufacturers of
                                                    lumber and wood
                                                    products.
                                              322  Pulp and paper mills.
                                              325  Chemical
                                                    manufacturers.
                                              324  Petroleum refineries
                                                    and manufacturers of
                                                    coal products.
                                    316, 326, 339  Manufacturers of
                                                    rubber and
                                                    miscellaneous
                                                    plastic products.
                                              331  Steel works, blast
                                                    furnaces.
                                              332  Electroplating,
                                                    plating, polishing,
                                                    anodizing, and
                                                    coloring.
                                              336  Manufacturers of
                                                    motor vehicle parts
                                                    and accessories.
                                              221  Electric, gas, and
                                                    sanitary services.
                                              622  Health services.
                                              611  Educational services.
                                           325193  Ethyl alcohol
                                                    manufacturing
                                                    facilities.
Electricity Generation.......              221112  Fossil-fuel fired
                                                    electric generating
                                                    units, including
                                                    units owned by
                                                    Federal and
                                                    municipal
                                                    governments and
                                                    units located in
                                                    Indian Country.
Adipic Acid Production.......              325199  Adipic acid
                                                    manufacturing
                                                    facilities.
Aluminum Production..........              331312  Primary Aluminum
                                                    production
                                                    facilities.
Ammonia Manufacturing........              325311  Anhydrous and aqueous
                                                    ammonia
                                                    manufacturing
                                                    facilities.
Cement Production............              327310  Portland Cement
                                                    manufacturing
                                                    plants.
Ferroalloy Production........              331112  Ferroalloys
                                                    manufacturing
                                                    facilities.
Glass Production.............              327211  Flat glass
                                                    manufacturing
                                                    facilities.
                                           327213  Glass container
                                                    manufacturing
                                                    facilities.
                                           327212  Other pressed and
                                                    blown glass and
                                                    glassware
                                                    manufacturing
                                                    facilities.
HCFC-22 Production and HFC-23              325120  Chlorodifluoromethane
 Destruction.                                       manufacturing
                                                    facilities.
Hydrogen Production..........              325120  Hydrogen
                                                    manufacturing
                                                    facilities.
Iron and Steel Production....              331111  Integrated iron and
                                                    steel mills, steel
                                                    companies, sinter
                                                    plants, blast
                                                    furnaces, basic
                                                    oxygen process
                                                    furnace shops.
Lead Production..............              331419  Primary lead smelting
                                                    and refining
                                                    facilities.
                                           331492  Secondary lead
                                                    smelting and
                                                    refining facilities.
Lime Production..............              327410  Calcium oxide,
                                                    calcium hydroxide,
                                                    dolomitic hydrates
                                                    manufacturing
                                                    facilities.
Magnesium Production.........              331419  Primary refiners of
                                                    nonferrous metals by
                                                    electrolytic
                                                    methods.
                                           331492  Secondary magnesium
                                                    processing plants.
Nitric Acid Production.......              325311  Nitric acid
                                                    manufacturing
                                                    facilities.
Petrochemical Production.....               32511  Ethylene dichloride
                                                    manufacturing
                                                    facilities.
                                           325199  Acrylonitrile,
                                                    ethylene oxide,
                                                    methanol
                                                    manufacturing
                                                    facilities.
                                           325110  Ethylene
                                                    manufacturing
                                                    facilities.
                                           325182  Carbon black
                                                    manufacturing
                                                    facilities.
Petroleum Refineries.........              324110  Petroleum refineries.
Phosphoric Acid Production...              325312  Phosphoric acid
                                                    manufacturing
                                                    facilities.
Pulp and Paper Manufacturing.              322110  Pulp mills.
                                           322121  Paper mills.
                                           322130  Paperboard mills.
Silicon Carbide Production...              327910  Silicon carbide
                                                    abrasives
                                                    manufacturing
                                                    facilities.
Soda Ash Manufacturing.......              325181  Alkalies and chlorine
                                                    manufacturing
                                                    facilities.
                                           212391  Soda ash, natural,
                                                    mining and/or
                                                    beneficiation.
Titanium Dioxide Production..              325188  Titanium dioxide
                                                    manufacturing
                                                    facilities.
Underground Coal Mines.......              212113  Underground
                                                    anthracite coal
                                                    mining operations.
                                           212112  Underground
                                                    bituminous coal
                                                    mining operations.

[[Page 57671]]

Zinc Production..............              331419  Primary zinc refining
                                                    facilities.
                                           331492  Zinc dust reclaiming
                                                    facilities,
                                                    recovering from
                                                    scrap and/or
                                                    alloying purchased
                                                    metals.
Municipal Solid Waste                      562212  Solid waste
 Landfills.                                         landfills.
                                           221320  Sewage treatment
                                                    facilities.
Industrial Waste Landfills...              562212  Solid waste
                                                    landfills.
                                           322110  Pulp mills.
                                           322121  Paper mills.
                                           322122  Newsprint mills.
                                           322130  Paperboard mills.
                                           311611  Meat processing
                                                    facilities.
                                           311411  Frozen fruit, juice,
                                                    and vegetable
                                                    manufacturing
                                                    facilities.
                                           311421  Fruit and vegetable
                                                    canning facilities.
                                           221320  Sewage treatment
                                                    facilities.
Industrial Wastewater                      562212  Solid waste
 Treatment.                                         landfills.
                                           322110  Pulp mills.
                                           322121  Paper mills.
                                           322122  Newsprint mills.
                                           322130  Paperboard mills.
                                           311611  Meat processing
                                                    facilities.
                                           311411  Frozen fruit, juice,
                                                    and vegetable
                                                    manufacturing
                                                    facilities.
                                           311421  Fruit and vegetable
                                                    canning facilities.
                                           221320  Sewage treatment
                                                    facilities.
                                           325193  Ethyl alcohol
                                                    manufacturing
                                                    facilities.
Manure Management \a\........              112111  Beef cattle feedlots.
                                           112120  Dairy cattle and milk
                                                    production
                                                    facilities.
                                           112210  Hog and pig farms.
                                           112310  Chicken egg
                                                    production
                                                    facilities.
                                           112330  Turkey Production.
                                           112320  Broilers and Other
                                                    Meat type Chicken
                                                    Production.
Suppliers of Coal Based                    211111  Coal liquefaction at
 Liquids Fuels.                                     mine sites.
Suppliers of Petroleum                     324110  Petroleum refineries.
 Products.
Suppliers of Natural Gas and               221210  Natural gas
 NGLs.                                              distribution
                                                    facilities.
                                           211112  Natural gas liquid
                                                    extraction
                                                    facilities.
Suppliers of Industrial GHGs.              325120  Industrial gas
                                                    manufacturing
                                                    facilities.
Suppliers of Carbon Dioxide                325120  Industrial gas
 (CO2).                                             manufacturing
                                                    facilities.
------------------------------------------------------------------------
a EPA will not be implementing subpart JJ of the Mandatory GHG Reporting
  Rule using funds provided in its FY2010 appropriations due to a
  Congressional restriction prohibiting the expenditure of funds for
  this purpose.

    Table 1 of this preamble is not intended to be exhaustive, but 
rather provides a guide for readers regarding entities likely to be 
affected by this action. Table 1 of this preamble lists the types of 
entities that may be reporting under 40 CFR part 98 and, therefore, may 
be affected by this action. However, other types of entities not listed 
in the table could also be subject to reporting requirements. To 
determine whether an entity is affected by this action, you should 
carefully examine the applicability criteria found in 40 CFR part 98, 
subpart A. EPA has also proposed reporting requirements for several 
other source categories (rule subparts). If these subparts are 
finalized, entities subject to them would be also subject to this 
action starting with their first reports. The following subparts have 
been proposed, but not yet finalized, by EPA:
     40 CFR part 98, subpart I (Electronics Manufacturing) (75 
FR 18652, April 12, 2010);
     40 CFR part 98, subpart L (Fluorinated Gas Production) (75 
FR 18652, April 12, 2010);
     40 CFR part 98, subpart W (Petroleum and Natural Gas 
Systems) (75 FR 18608, April 12, 2010);
     40 CFR part 98, subpart DD (Electric Transmission and 
Distribution Equipment Use) (75 FR 18652, April 12, 2010);
     40 CFR part 98, subpart QQ (Imports and Exports of 
Fluorinated GHGs Inside Pre-charged Equipment and Closed-cell Foams (75 
FR 18652, April 12, 2010);
     40 CFR part 98, subpart RR (Injection and Geologic 
Sequestration of Carbon Dioxide (75 FR 18576, April 12, 2010); and
     40 CFR part 98, subpart SS (Electrical Equipment 
Manufacture or Refurbishment) (75 FR 18652, April 12, 2010).
    If you have questions regarding the applicability of this action to 
a particular entity, consult the Web site or the person listed in the 
preceding FOR FURTHER GENERAL INFORMATION CONTACT section.

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 by November 22, 
2010. 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 EPA to enforce these requirements.

Acronyms and Abbreviations

    The following acronyms and abbreviations are used in this document:

CAA Clean Air Act
CBI confidential business information
CFR Code of Federal Regulations
CO2 carbon dioxide
CO2e CO2-equivalent
CUSIP Committee on Uniform Security Identification Procedures
DUNS Data Universal Numbering System
EIA Economic Impact Analysis
EO Executive Order

[[Page 57672]]

EPA U.S. Environmental Protection Agency
FEIN Federal Employer Identification Numbers
GHG greenhouse gas
GHGRP Greenhouse Gas Reporting Program
HCFC hydrochlorofluorocarbon
HFC hydrofluorocarbon
ICR Information Collection Request
LDC Local Distribution Company
NAICS North American Industry Classification System
NTTAA National Technology Transfer and Advancement Act of 1995
OMB Office of Management and Budget
SBREFA Small Business Regulatory Enforcement Fairness Act
SEC Securities and Exchange Commission
TRI Toxics Release Inventory
UMRA Unfunded Mandates Reform Act
U.S. United States

Table of Contents

I. Background
    A. Background on the Final Rule
    B. Summary of the Final Rule
    C. Legal Authority
    D. Relationship to Other Programs
II. The Final Rule and Reponses to Public Comments
    A. U.S. Parent Company
    B. NAICS Code(s)
    C. Cogeneration
    D. Frequency of Reporting
    E. Applicability of the Reporting Requirements
    F. Miscellaneous Public Comments and Responses
    G. Correction to Subpart A
III. Economic Impacts of the Final Rule
    A. How were compliance costs estimated?
    B. What are the costs of the rule?
    C. What are the economic impacts of the rule?
    D. What are the impacts of the rule on small businesses?
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions 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. Background

A. Background on the Final Rule

    On April 12, 2010, EPA proposed this rule amending 40 CFR part 98, 
which provides the regulatory framework for the GHG Reporting Program 
(GHGRP).\1\ The GHGRP requires the reporting of greenhouse gas (GHG) 
emissions and other relevant information from certain source categories 
in the United States (U.S). The GHGRP, which became effective December 
29, 2009, includes reporting requirements for facilities that emit GHGs 
(``facilities'') and for suppliers of fuels and industrial gases 
(``suppliers''). Facilities and suppliers that meet the applicability 
criteria in 40 CFR part 98, subpart A (``regulated entities'' or 
``reporters'') must submit annual GHG reports in accordance with the 
provisions in 40 CFR 98.3(c).\2\ For more detailed background 
information on the GHGRP, see the preamble to the final rule that 
established the program (74 FR 56260, October 30, 2009).
---------------------------------------------------------------------------

    \1\ GHGRP refers to the implementation of 40 CFR part 98.
    \2\ Because mobile sources are not covered under 40 CFR part 98, 
this rule does not apply to them.
---------------------------------------------------------------------------

    This rule amends 40 CFR part 98 to include new requirements for 
reporters to provide information on their U.S. parent company(s), on 
their primary and additional applicable North American Industry 
Classification System (NAICS) code(s), and on whether any of their 
reported emissions are from a cogeneration unit (also called combined 
heat and power). Facilities and suppliers subject to 40 CFR part 98 
must provide this additional information in their annual reports. This 
action also amends 40 CFR part 98, subpart A to correct a drafting 
error in the revisions to 40 CFR 98.2(a)(2) published on July 12, 2010 
(75 FR 39758).
    This preamble is divided into four sections. The first section of 
the preamble provides background and an overview of the final rule, 
discusses EPA's legal authority under the Clean Air Act (CAA) for 
collecting the additional information and summarizes the relationship 
between this information and the information already collected by other 
programs. The second section of the preamble describes the new 
reporting requirements finalized by this action, describes major 
changes since proposal, discusses public comments and EPA responses, 
and describes the revisions made to 40 CFR 98.2(a)(2) to correct the 
editorial error published on July 12, 2010. The third section of the 
preamble provides a summary of the impacts and costs of the final rule 
and discusses comments on the regulatory impacts analyses. The fourth 
and final section of the preamble discusses the various statutory and 
executive order requirements applicable to the final rule.

B. Summary of the Final Rule

    This action amends 40 CFR part 98 by adding several data elements 
to the list specified in 40 CFR 98.3. These data elements must be 
included in the annual GHG reports that facilities and suppliers 
subject to 40 CFR part 98 are required to submit. Specifically, this 
rule requires each reporter to (1) Provide the names and physical 
addresses of all of its U.S. parent companies and their respective 
percentages of ownership; (2) provide its primary NAICS code(s) and all 
additional applicable NAICS code(s); and (3) indicate whether any of 
its reported emissions are from a cogeneration unit located at the 
facility.
    This rule applies to all facilities and suppliers required to 
report under 40 CFR part 98, including those covered by subparts 
published on October 30, 2009 (74 FR 56260) and on July 12, 2010 (75 FR 
39736).\3\ Therefore, all facilities and suppliers that meet the 
applicability criteria in 40 CFR part 98, subpart A are required to 
report the additional data elements included in this rule.\4\
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    \3\ If additional categories are finalized in 40 CFR part 98, 
then this rule applies to those categories as well.
    \4\ EPA will not be implementing subpart JJ of the Mandatory GHG 
Reporting Rule using funds provided in its FY2010 appropriations due 
to a Congressional restriction prohibiting the expenditure of funds 
for this purpose.
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C. Legal Authority

    EPA is finalizing this rule under the existing authority provided 
in CAA section 114. As noted in the preamble to the Final Rule for 
Mandatory Reporting of GHGs (Part 98), CAA section 114 provides EPA 
with broad authority to require the information mandated by this final 
rule because such information will inform EPA's implementation of 
various CAA provisions (74 FR 66264). Under CAA section 114(a)(1), the 
Administrator may require emission sources, persons subject to the CAA, 
manufacturers of emission control or process equipment, or persons whom 
the Administrator believes may have necessary information, to monitor 
and report emissions and to provide such other information as the 
Administrator requests for the purposes of carrying out any provision 
of the CAA (except for a provision of title II with respect to motor 
vehicles).
    As discussed in greater detail in Sections I.C and II.Q of the 
preamble to the final Part 98 rule and in the response to comments for 
40 CFR part 98,\5\ EPA may gather information for a

[[Page 57673]]

variety of purposes, including for the purpose of assisting in the 
development of emissions standards under CAA section 111, determining 
compliance with implementation plans or standards, or more broadly for 
``carrying out any provision'' of the CAA.
---------------------------------------------------------------------------

    \5\ Responses to major comments can be found in the preamble to 
the final Part 98 (74 FR 56260). Responses to additional comments 
can be found in volumes 1 through 42 of the response to comments 
document entitled ``Mandatory Greenhouse Gas Reporting Rule: EPA's 
Response to Public Comments'' in docket EPA-HQ-OAR-2008-0508 (see 
http://www.regulations.gov/search/Regs/home.html#docketDetail?R=EPA-HQ-OAR-2008-0508).
---------------------------------------------------------------------------

    In particular, CAA section 103 authorizes EPA to establish a 
national research and development program, including nonregulatory 
approaches and technologies, for the prevention and control of air 
pollution, including GHGs. The data collected under this final rule 
would be immediately available to EPA and could inform EPA's 
implementation of CAA section 103(g) regarding improvements in sector-
based nonregulatory strategies and technologies for preventing or 
reducing air pollutants.
    The data collected through this final rule would be immediately 
available to EPA and could be used for the purposes of providing 
additional information to support more effective research and develop 
actions to address GHG emissions. For example, corporate parent and 
NAICS data would assist EPA in developing and improving emission 
inventories, as well as characterizing emissions data in several 
different ways. A more detailed understanding of the sources and 
operational categories of GHG emissions could lead to improvements in 
air pollution emissions information that is relied upon to develop 
effective control strategies. For example, EPA could use the NAICS code 
information gathered by this rule to compare results both within 
industries and across industry sectors.
    Finally, the information gathered through this rule will be 
immediately available to enhance EPA's implementation of various 
nonregulatory programs aimed at encouraging voluntary reductions of GHG 
emissions. Under the authority of CAA section 103, EPA has launched a 
variety of nonregulatory programs aimed at reducing emissions of 
GHGs.\6\ The additional data will assist EPA by providing more detailed 
information on possible sources, and facility operations within 
industrial sectors for EPA to work with in the context of these 
programs.
---------------------------------------------------------------------------

    \6\ For example, Climate Leaders, Combined Heat and Power 
Partnership, and Energy Star.
---------------------------------------------------------------------------

    Given the broad scope of CAA section 114, it is appropriate for EPA 
to gather the information required by this final rule because such 
information is relevant to EPA's implementation of a wide variety of 
CAA provisions and the burden of submitting such information is low.

D. Relationship to Other Programs

    EPA investigated other Federal and non-Federal reporting programs 
that collect information similar to the information that EPA will 
collect under this rule to determine if any existing sources of 
information met all EPA's objectives. These objectives included: 
Identifying each reporter's highest-level U.S. parent company(s); 
identifying each reporter's primary and any additional applicable NAICS 
codes; identifying facilities using cogeneration; covering all 
reporters subject to 40 CFR part 98; collecting data annually; and 
having the information available to EPA. This section of the preamble 
summarizes EPA's findings from our review of other programs. For 
additional information on reporting requirements for these data 
elements in existing Federal and non-Federal programs, please see 
Section I.D of the proposal preamble (75 FR 18455, April 12, 2010) and 
the following memoranda ``Review of Non-Federal Existing Greenhouse Gas 
Reporting Programs Requiring Reporting of Parent Company Ownership'' 
and ``Summary of Existing State Greenhouse Gas Reporting Programs'' 
located in Docket EPA-HQ-OAR-2009-0925.
1. EPA and Other Federal Data Collection Programs
    Federal voluntary programs, such as Climate Leaders and U.S. 
Department of Energy's Voluntary Reporting of Greenhouse Gases Program, 
collect some data elements (such as data related to NAICS codes) that 
are similar to the data that EPA will collect under this rule. However, 
none of the voluntary programs collect data from all of the facilities 
and suppliers subject to 40 CFR part 98. In addition, the voluntary 
programs that collect these data do not use the same definitions for 
data elements.
    U.S. Parent Company:
    Currently, three EPA programs collect parent company information: 
The Toxics Release Inventory (TRI) under Section 313 of the Emergency 
Planning and Community Right-to-Know Act; Risk Management Plans under 
CAA section 212(r); and the Inventory Update Rule under the Toxic 
Substances Control Act (TSCA). Of these three programs, TRI is the only 
one that requires reporters to submit information on their highest-
level U.S. parent company.\7\ TRI requires reporters to report the name 
of their one parent company with the largest ownership interest in the 
facility. TRI also requires the parent company's Dun & Bradstreet Data 
Universal Numbering System (DUNS) \8\ identifier to be reported 
annually. This amendment to 40 CFR part 98 differs from TRI parent 
company reporting requirements in that it requires reporting of: (1) 
All parent companies, rather than just one parent company; (2) the 
physical address of each parent company, but not the DUNS identifier; 
and (3) the percentage of ownership interest for each parent company. 
EPA estimates that approximately two-thirds of the reporters subject to 
40 CFR part 98 are also required to report to TRI.
---------------------------------------------------------------------------

    \7\ For purposes of TRI reporting, a reporter's parent company 
is defined as the highest-level company located in the U.S. that 
directly owns at least 50 percent of the voting stock of the 
company. When a facility is owned by more than one company and none 
of the owners directly owns 50 percent or more of the voting stock, 
the facility reports the name of either the facility operator or the 
owner with the largest ownership interest in the facility as its 
U.S. parent company. (Toxic Chemical Release Inventory Reporting 
Forms and Instructions, EPA 260-R-09-006, October 2009. page 34).
    \8\ The Data Universal Numbering System (DUNS) is a unique 9-
digit numerical identifier used to identify individual business 
entities in databases maintained by Dun & Bradstreet.
---------------------------------------------------------------------------

    Several EPA programs under the CAA, including the GHGRP,\9\ require 
reporters to identify the ``owner or operator'' of each affected 
facility. Although in some cases, the owner or operator is also the 
highest-level U.S. parent company, the information currently collected 
under the majority of CAA programs is not designed to specifically 
identify the highest-level U.S. parent company, because that 
information is not necessary to determine compliance with particular 
regulatory requirements.
---------------------------------------------------------------------------

    \9\ GHGRP refers to the implementation of 40 CFR part 98.
---------------------------------------------------------------------------

    Primary and Other NAICS Codes:
    The final rule also requires facilities and suppliers reporting 
under 40 CFR part 98 to report their primary and all additional 
applicable NAICS codes.\10\ In the large majority of cases, facilities 
and suppliers will submit a single NAICS

[[Page 57674]]

code. However, infrequently a facility/supplier may have two distinct 
products/activities/services providing comparable revenue. In these 
cases the facility/supplier may also report a second primary NAICS 
code. Among all EPA programs, only TRI requires reporters to submit 
primary NAICS codes as well as other relevant NAICS codes. As noted 
above, EPA estimates that approximately two-thirds of the reporters 
required to report under the GHGRP are also required to report to TRI.
---------------------------------------------------------------------------

    \10\ North American Industry Classification System (NAICS) 
code(s) are defined as the six-digit code(s) that represents the 
product(s)/activity(s)/service(s) at a facility or supplier as 
listed in the Federal Register and defined in ``North American 
Industrial Classification System Manual 2007,'' available from the 
U.S. Department of Commerce, National Technical Information Service. 
A reporter's primary NAICS code is the NAICS code that most 
accurately describes the reporter's primary product/activity/service 
based on revenue. Additional NAICS codes describe the product(s)/
activity(s)/service(s) at the facility that are not related to the 
principal source of revenue.
---------------------------------------------------------------------------

    EPA collects some NAICS code information through routine compliance 
reporting in multiple programs,\11\ but those programs either do not 
require primary and other NAICS codes be designated as such, or they do 
not define a primary NAICS code as it is defined in this rule. In 
addition, none of the compliance databases provide complete coverage of 
the facilities and suppliers subject to 40 CFR part 98.
---------------------------------------------------------------------------

    \11\ List of Programs Collecting NAICS: AIR Facility System 
(AFS); Facility Response Plan (FRP); Integrated Compliance 
Information System (ICIS); National Emissions Inventory (NEI); 
National Pollutant Discharge Elimination System (NPDES); Resource 
Conservation and Recovery Act Information (RCRAInfo); Risk 
Management Plan (RMP); and Toxics Release Inventory System (TRIS).
---------------------------------------------------------------------------

    Cogeneration:
    There are currently no EPA programs that require facilities or 
suppliers to identify and report the use of cogeneration units located 
at the facility. EPA's Combined Heat and Power Partnership, a voluntary 
program, requires that partners agree to provide data on existing 
cogeneration projects to help EPA determine climate benefits.\12\ 
However, this is a voluntary program and does not provide coverage of 
all cogeneration units. The Energy Information Administration collects 
information on cogeneration from utility and non-utility power 
generators greater than 1 megawatt,\13\ but does not collect this 
information from all facilities and suppliers subject to 40 CFR part 
98.
---------------------------------------------------------------------------

    \12\ http://www.epa.gov/chp.
    \13\ Energy Information Agency-860, Annual Electric Generator 
Report http://www.eia.doe.gov/cneaf/electricity/page/eia860.html 
and, Energy Information Agency-861, Annual Electric Power Industry 
Report http://www.eia.doe.gov/cneaf/electricity/page/eia861.html.
---------------------------------------------------------------------------

2. Non-Federal Data Collection Programs
    EPA reviewed State and other reporting initiatives or protocols to 
determine whether they contain information on U.S. parent companies, 
NAICS code(s), or cogeneration that is comparable in terms of coverage 
(of facilities and suppliers), and whether the specific information 
collected is comparable in data quality and timeliness to that required 
under this rule. EPA also considered whether the Agency had access to 
and could itself release the data collected under these programs.
    In general, the State and voluntary initiatives do not collect 
information on U.S. parent company, NAICS code(s), or cogeneration that 
is comparable to that required under this final rule regarding coverage 
(of facilities and suppliers), specific information collected, and data 
quality and timeliness. For additional information on the collection of 
parent company, NAICS codes, and cogeneration information by States, 
and other programs or initiatives, please see Section I.D. of the 
proposal preamble (75 FR 18455) and the following memoranda ``Review of 
Non-Federal Existing Greenhouse Gas Reporting Programs Requiring 
Reporting of Parent Company Ownership'' and ``Summary of Existing State 
Greenhouse Gas Reporting Programs,'' located in Docket EPA-HQ-OAR-2009-
0925.

II. The Final Rule and Reponses to Public Comments

    This section of the preamble explains the requirements for the 
final rule, describes the major changes to the proposed rule, and 
summarizes the public comments and responses.

A. U.S. Parent Company

    In the proposed rule published on April 12, 2010 (75 FR 18455), EPA 
defined United States parent company(s) as the highest-level United 
States company(s) with an ownership interest in the reporting entity as 
of December 31 of the reporting year. Although the proposed rule 
language included the requirements for only one option, EPA proposed 
two options in the preamble for reporting U.S. parent company 
information. As proposed, Option 1 would require all facilities and 
suppliers subject to 40 CFR part 98 to provide the legal name and 
physical address of their highest-level U.S. parent company. Reporters 
would then select the appropriate ownership status from a list of three 
types of ownership:

    ``Single ownership'' for entities owned by a single company that 
is itself not owned by another company.
    ``Wholly owned'' for entities owned by a single company that is 
itself owned by another company.
    ``Multiple ownership'' for entities owned by more than one 
company).

    Alternatively, in the proposed Option 2, reporters would provide 
the names and physical addresses of all of their U.S. parent companies 
and their respective percentages of ownership.
1. Summary of U.S. Parent Company Reporting Requirements
    After considering all the comments received, EPA has selected 
Option 2. Option 2 requires reporters to report the name(s) and 
physical address(es) of all of their U.S. parent companies and their 
respective percentages of ownership. For the final rule, EPA has 
defined U.S. parent company(s) as highest-level U.S. company(s) with an 
ownership interest in the reporting entity as of December 31 of the 
year for which data are being reported. The physical address of a U.S. 
parent company is defined as the street address, city, state and zip 
code of the U.S. parent company's physical location. Table 2 of this 
preamble provides instructions for how facilities or suppliers should 
report based on various ownership structures.

      Table 2--Instructions for Reporting U.S. Parent Company(ies)
------------------------------------------------------------------------
                                            How to report U.S. parent
           Reporting scenario                        company
------------------------------------------------------------------------
The reporting entity is entirely owned   Provide that company's legal
 by a single U.S. company that is not     name and physical address as
 owned by any other company (e.g., it     the U.S. parent company and
 is not a subsidiary or division of       report 100 percent ownership.
 another company).
The reporting entity is entirely owned   Provide the legal name and
 by a single U.S. company which is,       physical address of the
 itself, owned by another company         highest-level company in the
 (e.g., it is a division or subsidiary    ownership hierarchy as the
 of a higher-level company).              U.S. parent company and report
                                          100 percent ownership.
The reporting entity is owned by more    Provide the legal names and
 than one U.S. company (e.g., company A   physical addresses of all of
 owns 40 percent, company B owns 35       the highest-level companies
 percent, and company C owns 25           with an ownership interest as
 percent).                                U.S. parent companies, and
                                          report the percent ownership
                                          of each company.

[[Page 57675]]

The reporting entity is entirely owned   Provide the legal name and
 by a foreign company.                    physical address of the
                                          foreign company's highest-
                                          level company based in the
                                          U.S. as the U.S. parent
                                          company and report 100 percent
                                          ownership.
The reporting entity is partially owned  Provide the legal name and
 by a foreign company and partially       physical address of the
 owned by one or more U.S. companies.     foreign entity's highest-level
                                          company based in the U.S.,
                                          along with the legal names and
                                          physical addresses of the
                                          other U.S. parent companies,
                                          and report the percent
                                          ownership of each company.
The reporting entity is owned by a       The joint venture or
 joint venture or cooperative.            cooperative is its own U.S.
                                          parent company. Provide the
                                          joint venture or cooperative's
                                          legal name and physical
                                          address as the U.S. parent
                                          company and report 100 percent
                                          ownership.
The reporting entity is a federally      Enter U.S. Government, and do
 owned facility.                          not report physical address or
                                          percent ownership.\14\
------------------------------------------------------------------------

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

    \14\ Federally owned facilities are not required to report 
percent ownership because all federally owned facilities are 100 
percent owned by the Federal government. Additionally, the highest-
level U.S. ``parent'' for federally owned facilities is the U.S. 
Government, and a physical address is not required to establish a 
unique identity for the U.S. Government.
---------------------------------------------------------------------------

2. Summary of Major Changes Since Proposal
    There are no major changes to the proposed rule for U.S. parent 
company reporting requirements for Option 2. That option requires 
facilities to report the name(s) and physical address(es) of all of 
their U.S. parent companies and their respective percentages of 
ownership. The rationale for the selection of Option 2 can be found in 
Section II.A.3 of this preamble.
3. Summary of Public Comments and Responses
    This section provides a summary of the comments and responses on 
EPA's proposal to require reporting of U.S. parent company and 
ownership information. Also summarized in this section are public 
comments and responses on EPA's consideration of reporting numeric 
identifiers for parent companies, in addition to parent company names.
    General Comments on Reporting of U.S. Parent Company and Ownership 
Information:
    Comments: One commenter noted that collecting corporate identifier 
information only from those facilities that emit 25,000 metric tons or 
more of CO2 per year would provide only a partial picture of 
a company's overall emissions, as some companies may own facilities 
with emissions below the 25,000 metric ton threshold. This same 
commenter suggested that EPA should encourage company-level data 
reporting and require companies to report the relative emissions of 
each of their facilities subject to the reporting rule as compared to 
total company emissions.
    Response: Regarding the first issue, when EPA established the GHGRP 
last year, we completed a comprehensive threshold analysis and 
determined that a 25,000 metric ton threshold generally suited the 
needs of the Agency by providing comprehensive coverage of emissions 
with a reasonable number of reporters, thereby creating the robust data 
set necessary for the quantitative analyses of the range of likely GHG 
policies, programs and regulations. For additional background on 
thresholds, please see Section II.E. of the preamble of the final Part 
98 (74 FR 56271, October 30, 2009). We did not reopen that decision in 
the April 12, 2010 proposal to add U.S. parent company, NAICS codes, 
and cogeneration as data elements to the annual report required under 
40 CFR 98.3.
    Regarding the second issue, EPA interprets the commenter's remarks 
to indicate that companies, rather than individual facilities, should 
report emissions. This issue was also addressed when EPA established 
the GHGRP and was not revisited in the April 12, 2010 proposal. As 
described in Section II.F of the preamble of the final Part 98, the 
Agency elected to require reporting at the facility level in 40 CFR 
part 98 because the purpose of this rule is to collect data from 
suppliers and from facilities with direct GHG emissions above selected 
thresholds for use in analyzing, developing, and implementing current 
and potential future CAA GHG policies and programs. Facility-level data 
are needed to support analyses of some types of potential GHG reduction 
programs, such as New Source Performance Standards. Corporate-level 
reporting was not selected because corporate reporting without 
facility-specific details would not provide sufficient data to assess 
many potential CAA GHG policies and programs. For additional discussion 
of the level of reporting, please see Section II.F of the preamble of 
the final Part 98 (74 FR 56273, October 30, 2009).
    Moreover, as explained in the proposal and earlier in this 
preamble, EPA determined that reporting of all U.S. parent companies 
and their percent ownership will provide the Agency with necessary data 
to develop and improve emission inventories and to enhance EPA's 
implementation of various nonregulatory programs aimed at encouraging 
voluntary reductions of GHG emissions. Requiring individual facilities 
to report how their emissions compare to the total emissions of their 
parent companies would be burdensome, because it would require each 
facility to obtain information from all the other facilities (including 
those located overseas) owned by their parent company(ies) in order to 
make this type of comparison. EPA has concluded that the benefit of 
this information does not outweigh the additional burden to the 
regulated entity because the Agency and the public can compile similar 
information at a much lower burden by analyzing all GHG reports 
submitted by facilities with the same reported U.S. parent company. 
Furthermore, as stated above, the GHGRP is a facility and supplier 
level program designed to inform future programs and policies under the 
CAA. EPA does not consider a full corporate footprint analysis to be 
necessary to meet the goals of this program at this time.
    Comment: A commenter from the offshore operations sector requested 
that EPA clearly define the parent company reporting requirements 
specific to offshore petroleum and natural gas facilities. In 
particular, the commenter noted that while the offshore facility itself 
may have a single or multiple owners, each development and/or 
production field associated with the facility may have multiple owners. 
The commenter added that this situation could complicate the 
determination of

[[Page 57676]]

percentage of ownership interest for each reporting entity.
    Response: Reporting entities (facilities or suppliers) are required 
to report information on their own parent company or companies, as 
described in Table 2 of this preamble. Parent company reporting is 
limited to information on the parents of the reporting entity itself, 
and does not include parent company information on any associated 
entities or customers that are not part of the reporting entity. The 
facility definition for an offshore petroleum/natural gas operator in 
the proposed 40 CFR part 98, subpart W: Petroleum and Natural Gas 
Systems rulemaking (75 FR 18608, April 12, 2010) is limited to the 
offshore platform. Production fields and development fields that 
produce oil or gas sent to the platform are not considered part of the 
facility. Therefore, the facility reports the parent company or 
companies for the platform and secondary platform structures connected 
to the platform via walkways, storage tanks associated with the 
platform structure and floating production and offloading equipment, 
and does not include company information for any associated entities, 
such as production or development fields.
    To further clarify, the rule language was modified to include the 
phrase, ``of the reporting entity'' in paragraph 98.3(c)(11), which 
requires that reporting entities report ``Legal name(s) and physical 
address(es) of the highest-level United States parent company(s) of the 
reporting entity and the percentage of ownership interest for each 
listed parent company as of December 31 of the year for which data are 
being reported * * *.''
    EPA understands that operations at facilities in the oil and 
natural gas sector can be complex with many partners working together 
to explore for, produce, process, transport, and distribute oil and 
natural gas products. Given the commenter's use of the term ``owner'', 
EPA clarifies here that requirements to identify the ``owner'' of an 
affected facility are different from the requirements to report U.S. 
parent company. For example, ``owner'' refers to the person or legal 
entity that owns the facility and its productive infrastructure. Under 
this final rule, U.S. parent company means the highest-level U.S. 
company(s) with an ownership interest in the reporting entity. A 
regulated entity may report ``owner'' differently than U.S. parent 
company in some cases. For example, a facility may report ``owner'' and 
U.S. parent company differently if the legal entity that owns the 
facility is a subsidiary to a U.S. parent company. A facility may also 
report ``owner'' and U.S. parent company differently if an individual 
with no company affiliation has an ownership interest in a facility, 
since ``owner'' covers persons while U.S. parent company does not.
    Proposed Options 1 and 2:
    Comments: EPA received comments supporting both options. Comments 
favoring Option 1 (i.e., requiring reporting the legal name and 
physical address of the reporter's highest-level U.S. parent company 
with the largest ownership share and the selection of the ownership 
type that best describes the ownership structure for the reporter), 
noted that Option 1 is the less burdensome option and questioned 
whether the potential benefits of Option 2 outweighed the burden of 
collecting the information. Furthermore, the comments stated that 
complex ownership structures make it unlikely the person completing the 
form would be able to provide the information on all parent companies. 
The comments also noted that identifying the general corporate 
structure (as proposed in Option 1) should provide the information 
required by EPA and that submission of the name of the highest-level 
U.S. company with the largest ownership interest is consistent with TRI 
reporting requirements.
    Commenters favoring Option 2 (i.e., requiring reporting of the 
legal names, physical addresses and respective percent ownership of all 
companies with an ownership stake in the regulated entity), noted that 
Option 1 would overstate the GHG contribution of the largest ownership 
interest and omit the contribution of the smaller ownership 
interest(s). The commenters stated that this bias could limit the 
usefulness of the parent company data and that Option 2 provides a more 
complete picture of reporters' ownership, thereby providing greater 
transparency regarding corporate GHG emissions. Some commenters added 
that Option 2 would be more effective in terms of corporate 
accountability. In addition, commenters noted that Option 2 complements 
recent Securities and Exchange Commission (SEC) Interpretive Guidance 
on certain existing disclosure rules that requires public companies to 
disclose the impact that climate change or regulation related to 
climate change may have on their business. An industry commenter stated 
that reporters should not have difficulty completing the reporting 
under either option.
    Response: After reviewing the comments received, EPA selected 
Option 2 because it provides more complete information on parent 
company ownership for reporters with multiple parent companies, thereby 
providing greater accuracy in aggregating emissions to the parent 
company level.
    EPA acknowledges that there is a modest additional burden 
associated with Option 2 for those reporters with multiple owners and 
that Option 1 would be the lower cost Option.\15\ The additional total 
national cost of Option 2 however, was estimated to be less than two 
percent greater than Option 1. The burden estimate for Option 2 
incorporates the additional effort associated with reporters asking 
legal or management staff for information regarding complex ownership 
structure. Option 1 supporters neither offered supporting information 
or estimates of the additional burden nor refuted EPA's burden 
estimates. EPA concluded that the additional benefits of Option 2 
compared to Option 1 outweigh the potential costs of collecting more 
comprehensive parent company information because the additional cost of 
Option 2 is minimal while the additional benefit is substantial.
---------------------------------------------------------------------------

    \15\ EPA's estimate of the burden of Option 1 versus Option 2 
was presented in the Economic Impact Analysis for the proposed rule. 
An updated estimate of the burden associated with Option 2 was 
included in the Economic Impact Analysis for the final rule. These 
documents are available at http://www.regulations.gov under Docket 
ID No. EPA-HQ-OAR-2009-0925.
---------------------------------------------------------------------------

    Legal Authority to Collect Parent Company Information:
    Comments: Two commenters questioned the need for EPA to collect 
parent company information. One commenter stated that company 
affiliation should not be used as a factor in policy development. The 
other commenter's primary objection was that EPA had been vague and 
non-specific in justifying collection of parent company information. 
The commenter stated that EPA's authority to collect information under 
CAA section 114 is limited by the requirements of the Paperwork 
Reduction Act (5 CFR 1320), under which EPA must demonstrate that the 
requested information has ``practical utility.'' The commenter stated 
that EPA had not met the definition of ``practical utility'' in its 
justification for collecting parent company information. The commenter 
added that because practical utility is necessary for the Office of 
Management and Budget (OMB) to grant an Information Collection Request 
(ICR), EPA should not finalize this requirement until it has identified 
and solicited comment on a practical use.
    Response: As explained in the Section I.C of this preamble, CAA 
section 114 is

[[Page 57677]]

sufficiently broad for EPA to collect this information. Section 114 of 
the CAA generally authorizes EPA to gather information from any person 
who owns or operates an emissions source, who is subject to a 
requirement of the CAA, who manufacturers control or process equipment, 
or who the Administrator believes has information necessary for the 
purposes of CAA section 114(a). EPA may gather information for purposes 
of establishing implementation plans or emissions standards, 
determining compliance, or ``carrying out any provision'' of the CAA. 
For these reasons, the Administrator may request that a person, on a 
one-time, periodic or continuous basis, establish and maintain records, 
make reports, install and operate monitoring equipment and, among other 
things, provide such information the Administrator may reasonably 
require. This language has been interpreted to grant EPA broad 
authority. See, e.g., Dow Chemical Co. v. U.S., 467 U.S. 227, 233 
(1986) (``Regulatory and enforcement authority generally carries with 
it all modes of inquiring and investigation traditionally employed or 
useful to execute the authority granted''). This information is 
included in the existing ICR.
    It is reasonable for EPA to request the parent company information. 
Once EPA has this information, EPA will be able to immediately use it 
to assist in implementation of agency policy and program goals 
including developing and improving emission inventories and enhancing 
the implementation of programs aimed at reducing emissions of GHGs. For 
more information, refer to Section I.C of this preamble, where EPA has 
further explained the immediate usefulness of this information under 
the CAA.
    Definition of U.S. Parent Company:
    The proposed rule included a definition of ``United States parent 
company(s)'' as follows: ``United States parent company(s) means the 
highest-level United States company(s) with an ownership interest in 
the reporting entity as of December 31 of the reporting year.''
    Comment: One commenter requested that EPA clarify that ``reporting 
year'' means the year for which emissions data are being reported and 
not the year when the report is submitted to EPA.
    Response: The intent in the proposal was for ``reporting year'' to 
be interpreted as the year during which GHG data are monitored and 
collected. The language has been clarified in the final rule. The 
revised definition of U.S. parent company in the final rule reads: 
``United States parent company(s) means the highest-level United States 
company(s) with an ownership interest in the reporting entity as of 
December 31 of the year for which data are being reported.''
    Reporting by Foreign Owned Companies:
    EPA solicited comments on whether facilities and suppliers owned by 
foreign companies always have a U.S.-based parent company as defined in 
the proposed rule. EPA was interested in receiving comments, data, and 
analysis on whether there may be instances in which foreign-owned 
facilities and suppliers do not have a U.S. parent company because we 
wanted to determine if U.S. parent company reporting would be 
appropriate for all reporters subject to 40 CFR part 98.
    No comments were received on this topic, but some minor clarifying 
changes were made in the final rule requirements for parent company 
reporting for foreign corporations. For consistency, some of these 
minor clarifying changes were also made in the final rule requirements 
for parent company reporting for multiple U.S. companies. In the final 
rule, if the reporting entity is entirely owned by a foreign company, 
reporters must provide the legal name and physical address of the 
foreign company's highest-level company based in the U.S. as the U.S. 
parent company, and report 100 percent ownership. If the reporting 
entity is partially owned by a foreign company and partially owned by 
one or more U.S. companies, reporters provide the legal name and 
physical address of the foreign owner's highest-level company based in 
the U.S. as the U.S. parent company, along with the legal names and 
physical addresses of the other U.S. parent companies and the percent 
ownership of each of these companies.
    Reporting of Numeric Corporate Identifiers:
    In the preamble for the proposed rule, we discussed a requirement 
to report a numeric identifier for parent company(s) in addition to the 
parent company name. EPA requested comments on corporate identifiers 
and whether there are any additional numeric identifiers that should be 
considered for this final rule. Ultimately, EPA chose not to require 
reporting of a corporate numeric identifier, upon review of comments 
received and in recognition of the limitations of the possible private 
and public sources for such identifiers.
    Comments: Numerous comments stated that requiring a unique numeric 
identifier for each parent company would facilitate aggregation of the 
data and would achieve the most accurate reporter-to-parent linkages. 
These commenters noted that inconsistencies in reporting corporate 
parent names (``E.I. Du Pont De Nemours'' versus ``Du Pont Inc.'') 
increases the difficulty of the reporter-to-parent aggregation and that 
numerical identifiers would increase the accuracy and consistency of 
the reported data. While commenters acknowledged the significant 
limitations in the numeric identifiers discussed in the preamble to the 
proposed rule, including Data Universal Number System (DUNS), Committee 
on Uniform Security Identification Procedures (CUSIPs), Federal 
Employer Identification Numbers (FEINs), and stock tickers, some 
commenters recommended using these identifiers, or using new, EPA-
generated identifiers. Commenters noted that using numeric identifiers 
could provide consistent and accurate reporting that minimizes the 
potential of data entry errors. Several comments supported EPA's 
decision not to include a requirement to report numeric corporate 
identifiers because existing and available identifiers do not meet 
EPA's objective of collecting comprehensive corporate identifier 
information for all facilities and suppliers subject to 40 CFR part 98.
    Response: Based on a review of the comments received and on prior 
research, EPA decided to retain its position as stated in the proposal, 
and the final rule does not include reporting of a corporate identifier 
for the reasons described in this section of the preamble.
    EPA agrees with the comments that numeric identifiers could 
potentially facilitate data aggregation, however, the currently 
available numeric identifiers considered by EPA and proposed by 
commenters have shortcomings such that they would not enable EPA to 
adequately aggregate data. As noted in Section II.A of the preamble and 
in the memorandum ``Summary of Existing Company Identifier System'' 
(located in docket EPA-HQ-OAR-2009-0925), some of the identifiers 
considered (e.g., stock tickers, CUSIP, SEC central index key, and 
LexisNexis) cover only public companies. EPA expects that reporters 
under the GHGRP will cover both public and privately-held companies and 
does not want to exclude a portion of reporters from Agency analyses. 
Furthermore, limiting the reporting of a numeric identifier to only 
public companies would place an additional burden on only this subset 
of reporters. The privately held databases, such as DUNS and CUSIPs, 
require licensing agreements, which potentially restrict the public use 
of that data. Finally, in

[[Page 57678]]

accordance with Internal Revenue Code 6103, FEINs can only be collected 
and released on a voluntary basis and EPA would have no means to ensure 
that all facilities/suppliers would report their FEINs.
    Additionally, the final rule requires both the reporter's parent 
company name and the parent company's headquarters physical address, 
which is intended to improve considerably on EPA's ability to uniquely 
identify corporate parents. To address comments related to difficulties 
in aggregating data using the reported parent company name, EPA plans 
to implement methods to standardize the parent company names reported. 
Standardizing the parent company names will improve the accuracy of 
aggregating data by parent company name by limiting human errors (e.g., 
typing entry errors), and removing inconsistent abbreviations (e.g., 
Co. vs. Company).
    In response to comments suggesting EPA assign new numeric 
identifiers to parent companies, that task is outside the scope of this 
rulemaking. However, the Agency is broadly exploring future development 
of unique, EPA-generated numeric identifiers for parent companies. 
These comments reinforce EPA's understanding that such identifiers 
would be valuable for aggregating facility level data to the corporate 
level. Any development of these identifiers would be a future effort, 
and submission of such identifiers is not included in this final rule.

B. NAICS Code(s)

    The proposed rulemaking (75 FR 18455) includes a requirement to 
report the primary NAICS code applicable to each reporter, as well as 
any additional NAICS codes in order of largest revenue to smallest. The 
proposal defined NAICS code as the six-digit code(s) that represents 
the product(s)/activity(s)/service(s) at a facility or supplier as 
defined in ``North American Industrial Classification System Manual 
2007,'' available from the U.S. Department of Commerce, National 
Technical Information Service.
    Inclusion of NAICS code reporting was proposed to provide 
information to assist EPA in aggregating and analyzing the data 
collected under 40 CFR part 98 at the sector level.
1. Summary of NAICS Code Reporting Requirements
    After considering all of the comments received, this final rule 
requires that each facility or supplier required to report under 40 CFR 
part 98 report its primary NAICS code and any additional applicable 
NAICS codes. For the purposes of this rule, EPA considers a reporter's 
primary NAICS code to be the six-digit code (or codes) that most 
accurately describes the reporter's primary product/activity/service, 
as defined in ``North American Industry Classification System Manual 
2007,'' available from the U.S. Department of Commerce, National 
Technical Information Service.\16\ The primary NAICS code (or codes) is 
the product/activity/service that is the principal source of revenue 
for the facility or supplier. For the purposes of this rule, EPA 
considers additional NAICS codes to be those codes that describe the 
product(s)/activity(s)/service(s) at the facility, but that are not 
related to the principal source of revenue.
---------------------------------------------------------------------------

    \16\ The Office of Management and Budget has proposed revisions 
to the North American Industry Classification System for 2012 
onward. See ``North American Industry Classification System--Updates 
for 2012'' 75 FR26855, May 12, 2010. These revisions will not affect 
this rulemaking, which requires reporters to use the NAICS codes 
defined in the North American Industry Classification System Manual 
2007, regardless of whether these codes are updated in the future.
---------------------------------------------------------------------------

    The following instructions apply to reporters regarding the 
reporting of NAICS codes: Enter the six-digit NAICS code that most 
accurately describes the reporter's principal product/activity/service 
and designate it as ``primary.'' Each reporter must provide one primary 
NAICS code, but may also designate a second code as primary if the 
reporter has two distinct products/activities/services providing 
comparable revenue. Provide all additional NAICS codes that describe 
the reporter's products/activities/services but that are not related to 
the principal source of revenue. Federal facilities should report the 
NAICS code that most closely represents the activities taking place at 
the site. For example, a Federally-owned, fossil fuel-fired electric 
power plant would be classified as NAICS 221112 -- Fossil Fuel Electric 
Power Generation. For additional guidance on how to determine the 
proper NAICS code(s), go to http://www.census.gov/eos/www/naics/.
    The use of the term ``primary NAICS code'' in this rule and the 
methodology for determining the primary NAICS code are consistent with 
the NAICS code use and methodology used by the U.S. Census Bureau and 
other government agencies. In addition, the instructions for reporting 
NAICS codes in the final rule are similar to those used by EPA's TRI 
and other EPA information collections.
2. Summary of Major Changes Since Proposal
    The major changes since proposal are identified in the following 
list. The rationale for these changes can be found in Section II.B.3 of 
this preamble:
     In the final rule, reporters must provide one primary 
NAICS code and may also provide a second primary NAICS code if they 
have two distinct products/activities/services providing comparable 
revenue. The proposed rule did not specify the number of primary NAICS 
codes that should be reported.
     In this final rule, no ordering of the additional (i.e., 
non-primary) NAICS codes is required. The proposed rule required that 
additional NAICS codes be entered in order of largest revenue to 
smallest.
3. Summary of Public Comments and Responses
    This section provides a summary of the comments and responses on 
EPA's proposal to require reporting of primary and all additional NAICS 
codes by facilities and suppliers subject to 40 CFR part 98.
    Primary NAICS Code Reporting Requirements:
    Comments: Many commenters supported the NAICS codes reporting 
requirements as proposed. Commenters stated that requiring the full 
six-digit NAICS code(s) will allow data users to connect reported GHG 
data with other information on U.S. industries, facilitating 
comparisons within and across industry sectors. Other commenters noted 
that collection of NAICS codes greatly expands the utility of 40 CFR 
part 98 data, and provides important data relevant to industry sector 
analyses. One industry source added that NAICS codes are easily 
obtained.
    Two commenters requested that EPA allow reporting of more than one 
primary NAICS code. These commenters stated that this is particularly 
important for large facilities that consist of separate economic units, 
such as a petroleum refinery and a chemical plant. The commenters added 
that this could be important if any future climate change legislation 
differentiates regulatory requirements according to industry sector or 
NAICS codes, where requirements for refineries and chemical plants 
could differ. Accordingly, the commenters concluded, EPA should ensure 
that the final rule and any required electronic reporting tool allow 
for entering more than one primary NAICS code per reporter.

[[Page 57679]]

    Finally, one commenter stated that EPA should obtain primary NAICS 
codes from the Census Bureau.
    Response: EPA agrees with the commenters that the NAICS code 
information will provide a valuable data element for sector-level 
analyses. EPA considered using three- and four-digit NAICS codes, but 
proposed and is requiring reporting of the six-digit NAICS codes 
because they provide more detailed information for analyses. In 
addition, use of the six-digit NAICS codes is consistent with TRI and 
other EPA databases, allowing sector-level data to be compared across 
EPA data sets.
    Upon consideration of the comments received regarding multiple 
primary NAICS, EPA requires reporting in the final rule of one primary 
NAICS code that most accurately describes the reporting entity's 
primary product/activity/service. A reporting entity that has two 
distinct products/activities/services providing comparable revenue may 
report a second primary NAICS code. Allowing a second NAICS code to be 
designated as a primary NAICS code gives facilities and suppliers that 
have two distinct lines of business with comparable revenue the ability 
to more accurately reflect the nature of their operations.
    In response to the commenters' statement that the electronic 
reporting tool for the GHGRP should allow entry of more than one 
primary NAICS code per reporter, EPA's reporting tool will require the 
reporters to designate one NAICS code as primary, and will allow up to 
two NAICS codes to be designated as primary.
    EPA also considered whether primary NAICS codes could be obtained 
from the Census Bureau, as suggested by one commenter. However, the 
facility-level Census Bureau data are confidential as specified in U.S. 
Code Title 13 \17\, and cannot be accessed by EPA. Therefore, the final 
rule requires primary and all additional NAICS codes to be reported to 
EPA by the reporting entity.
---------------------------------------------------------------------------

    \17\ U.S. Code Title 13 guarantees the confidentiality of census 
information and establishes penalties for disclosing this 
information. See http://www.census.gov/geo/www/luca2010/luca_title13.html.
---------------------------------------------------------------------------

    Additional NAICS Codes Reporting Requirements:
    Comments: Several commenters opposed EPA's proposal that the 
additional (i.e., non-primary) NAICS codes reported be listed in the 
order of the largest source of revenue to the smallest. Comments in 
opposition stated this ranking: (1) Would add an additional and 
unnecessary burden and expense; (2) does not add value to the emissions 
information being reported; (3) is an arbitrary exercise, where 
different companies, or different employees within a company, could 
derive different ranking of the additional NAICS codes; (4) is 
inconsistent with TRI requirements where non-primary NAICS codes are 
reported, but not ranked; and (5) could disclose CBI that could be 
accessed by foreign or domestic competitors. One commenter suggested 
that reporting of NAICS codes beyond the primary NAICS codes should be 
voluntary.
    Response: EPA carefully considered the information provided by 
commenters on reporting additional (i.e., non-primary) NAICS codes in 
descending order based on revenue. As a result of this review, the 
final rule does not require that the additional NAICS codes be reported 
in a particular order. After reviewing the comments received, EPA 
agrees that ordering the additional NAICS codes by revenue could result 
in added burden that may not provide additional benefit compared to a 
list of additional NAICS codes that is not ordered, because emissions 
are not necessarily related to revenue. Ranking of additional NAICS 
codes, therefore, is not required in the final rule. The comments 
regarding the ranking of additional NAICS codes, including the 
possibility of different rankings by different employees, the need for 
consistency with TRI, and the possibility of divulging CBI are not 
addressed because EPA has determined that requiring ranking will not 
provide the Agency with useful additional data when compared to the 
burden.
    In response to the comment suggesting that reporting of additional 
NAICS codes be voluntary, EPA retains the proposed approach that 
requires mandatory reporting of all additional NAICS codes. To conduct 
analyses of the GHG emissions associated with different sectors or 
different types of operations, it is critical that these data be 
reported consistently among reporters. If reporting of additional 
(i.e., non-primary) NAICS were voluntary, it would not be possible to 
distinguish if a reporter entered only one NAICS code because only one 
type of operation is conducted, or if only one NAICS code was entered 
due to a voluntary decision not to enter additional NAICS codes. This 
inconsistency in reporting additional NAICS codes would limit the value 
of analyses characterizing non-primary operations. To maintain the 
ability to conduct robust analyses using the reported NAICS codes, 
reporting of additional NAICS codes is required in the final rule.
    Definition of NAICS Codes:
    In the proposed rule, EPA provided a definition for ``North 
American Industry Classification System (NAICS) codes'' as follows: 
``North American Industry Classification System (NAICS) code(s) means 
the six-digit code(s) that represents the product(s)/activity(s)/
service(s) at a facility or supplier as defined in ``North American 
Industrial Classification System Manual 2007,'' available from the U.S. 
Department of Commerce, National Technical Information Service.'' No 
comments were received on this definition, and no changes were made in 
the final rule to the definition of ``North American Industry 
Classification System (NAICS) codes.''

C. Cogeneration

    In the proposed rulemaking (75 FR 18455), EPA proposed requirements 
for reporting the use of cogeneration by indicating (i.e., checking yes 
or no) whether some or all of the reported GHG emissions are from one 
or more cogeneration units. EPA also solicited comment on whether this 
reporting should be mandatory or voluntary. In the proposal, EPA 
defined a cogeneration unit as a unit that produces electrical energy 
and useful thermal energy for industrial, commercial, or heating or 
cooling purposes, through the sequential or simultaneous use of the 
original fuel energy.
1. Summary of Cogeneration Reporting Requirements
    The final rule requires reporters to indicate whether reported 
emissions include emissions from a cogeneration unit (yes or no) 
located at the facility. Cogeneration units can result in net 
reductions (i.e., across facilities) of GHG emissions compared to 
separate power and heat generation.
    Information on the types and characteristics of facilities that 
employ cogeneration technologies and the performance of cogeneration 
units could be important to future development of GHG mitigation 
strategies. EPA recognizes that the information required under this 
rule may not, by itself, be sufficient to determine the actual quantity 
of GHG emissions occurring from cogeneration units at individual 
reporting facilities, companies or NAICS sectors. It also does not 
provide the degree to which those cogeneration emissions displace 
fossil fuel or other fuel source emissions from central station 
generation plants. However, the information reported will allow EPA and 
States to identify facilities using cogeneration. In addition, EPA 
recognizes that not all emissions at

[[Page 57680]]

individual reporting facilities with cogeneration are attributable to 
the cogeneration unit(s). As such, it should not be inferred that all 
emissions at an individual reporting facility with cogeneration are 
attributed to the cogeneration unit(s).
2. Summary of Major Changes Since Proposal
    The final rule retains the proposed rule language and requires 
reporters to indicate whether reported emissions include emissions from 
a cogeneration unit. Reporting of this information is mandatory.
3. Summary of Public Comments and Responses
    This section provides a summary of the comments and responses on 
EPA's proposal to require reporters to identify use of a cogeneration 
unit located at the facility.
    Cogeneration Reporting Requirements:
    Comments: Numerous comments strongly supported EPA's proposal to 
require reporters to indicate whether some or all of the reported GHG 
emissions are from a cogeneration unit. Commenters stated that 
collecting the information on cogeneration use will help EPA understand 
where the practice is being used, and how to encourage its use where 
appropriate. None of the comments opposed EPA's proposal to collect 
cogeneration information.
    One commenter requested that EPA provide in the rule additional 
discussion of the benefits of cogeneration technology as an efficient 
method to reduce net GHG emissions. This commenter also requested that 
EPA require power production facilities to report GHG emissions on a 
net GHG per usable energy produced basis to ensure that the benefits of 
total system efficiency are recognized.
    Another commenter recommended EPA consider whether additional 
information on cogeneration units should be required in the future, 
such as their capacity or how frequently they are used.
    Finally, a commenter recommended that EPA clarify and/or modify the 
rule to state that: (1) Local Distribution Companies (LDCs) should be 
required to report only the presence of cogeneration units at 
facilities owned and operated by the LDC; and (2) as suppliers, LDCs 
are not responsible for reporting cogeneration units owned and operated 
by the LDC's individual customers.
    Response: EPA agrees with comments that the cogeneration 
information will be informative, enabling EPA to identify the types and 
characteristics of facilities that employ cogeneration technologies. By 
collecting this information annually, EPA will also be able to track 
changes in the use of this technology in individual sectors and across 
the U.S. economy.
    EPA agrees with the comment that there are efficiencies related to 
the use of cogeneration. However, the regulatory framework for the 
GHGRP is not the appropriate place to describe the benefits of a 
technology.
    In response to the comment requesting that power production 
facilities report GHG emissions on a net GHG per usable energy 
produced, the information the commenter asks EPA to collect is well 
beyond the intended scope of this rule. The scope of this rule is to 
obtain general information on cogeneration use for future development 
of GHG mitigation strategies and not to support the development of 
standards of performance for industrial facilities or to amend the 
units in which data are required to be reported in 40 CFR part 98.
    In response to the comments requesting EPA collect more detailed 
information on reporters' cogeneration units, EPA recognizes that the 
information required under this rule will not, by itself, be sufficient 
to determine the actual quantity of GHG emissions occurring from 
cogeneration units at individual reporting facilities, companies or 
NAICS sectors. The cogeneration information required under the final 
rule will improve EPA's understanding of the current implementation of 
cogeneration while minimizing burden on reporters; therefore, EPA is 
not currently exploring expansion of the cogeneration reporting 
requirements.
    EPA agrees with the comment regarding the requirements for LDCs to 
report cogeneration. It was not our intent to require LDCs to collect 
cogeneration information on their customers. EPA is clarifying in this 
response that LDCs are required to report the presence of cogeneration 
facilities owned and operated by the LDC, but are not required to 
report whether units owned and operated by the LDC's customers have 
cogeneration units.
    Comments on Making Cogeneration Reporting Voluntary:
    EPA requested comments on whether the cogeneration reporting in the 
final rule should be mandatory or voluntary. No comments supported 
voluntary reporting of the cogeneration information; however, many 
commenters stated their support for EPA's proposal to require that 
reporters indicate whether or not any of their reported emissions are 
from a cogeneration unit at the facility. As in the proposed rule, the 
final rule includes mandatory reporting to indicate if any reported 
emissions are from cogeneration units located at the facility.
    Definition of Cogeneration:
    The proposed rule included a definition of ``cogeneration unit'' as 
follows: ``Cogeneration unit means a unit that produces electrical 
energy and useful thermal energy for industrial, commercial, or heating 
or cooling purposes, through the sequential or simultaneous use of the 
original fuel energy.'' EPA based this definition of cogeneration on 
the Agency's Acid Rain Program to promote consistency and comparable 
data collection across EPA regulatory programs. No comments were 
received on this definition, and no changes were made in the final rule 
to the definition of ``cogeneration'' included in the proposed rule.

D. Frequency of Reporting

    In the proposed rulemaking (75 FR 18455), EPA proposed that 
facilities and suppliers subject to 40 CFR part 98 be required to 
submit information regarding their U.S. parent company(s), their NAICS 
code(s), and whether or not any of their reported emissions are from a 
cogeneration unit, on an annual basis, as part of their annual reports. 
EPA further proposed that regulated entities be required to report this 
information as it exists on December 31 of the year for which data are 
being reported, to be consistent with other EPA reporting programs, 
such as TRI.
1. Summary of the Final Rule Requirements
    Under the final rule, facilities and suppliers subject to 40 CFR 
part 98 are required to annually submit information regarding their 
U.S. parent company(s), their NAICS code(s), and whether or not any of 
their reported emissions are from a cogeneration unit, as part of their 
annual GHG reporting. Regulated entities report this information as it 
exists on December 31 of the year for which data are being reported. 
Facilities will be required to report this data beginning in 2011 for 
the 2010 reporting year.
2. Summary of Major Changes Since Proposal
    There have been no changes since proposal.
3. Summary of Public Comments and Responses
    This section provides a summary of the comments and responses on 
EPA's

[[Page 57681]]

proposal to require annual reporting for the data elements added to 40 
CFR part 98 in the final rule (i.e., U.S. parent company(s), NAICS 
code(s), and cogeneration by facilities and suppliers). While EPA was 
interested in receiving comments on the proposal in its entirety, EPA 
specifically solicited comments on the utility and burden of updating 
the additional information required by the proposed rule on a more 
frequent basis than annually, for example, whenever changes occur with 
respect to a reporter's U.S. parent company or NAICS code(s).
    Comments: The comments received largely supported EPA's proposal to 
require reporting of U.S. parent company(s), NAICS code(s), and 
cogeneration units on an annual basis, rather than more frequently. One 
commenter supporting annual reporting stated a concern with the 
potential burden and complexity of updating corporate parent 
information more often than annually. For more frequent reporting, the 
commenter added, EPA would need to identify a specific need for the 
increased level of detail.
    One commenter noted that if reporting were required quarterly, data 
could be aggregated to each parent company's fiscal year. Another 
commenter stated that requiring updates to be reported whenever a 
change occurs in the reporter's parent company or NAICS code should not 
be a problem. This commenter added that the annual reporting 
requirement, however, may be sufficient.
    Response: EPA recognizes that a reporter's U.S. parent company(s) 
and/or NAICS code(s) may change during the course of the year. In some 
instances this information may even change multiple times throughout 
the year. However, EPA agrees with the commenters that requiring 
updates to these data elements more than once a year, such as every 
time there is a change in a reporter's U.S. parent company(s) or NAICS 
code(s), would result in an increased burden for minimal additional 
information. In addition, requiring annual reporting would be 
consistent with the requirements of 40 CFR part 98. Therefore, the 
final rule requires annual reporting of reporters' U.S. parent 
company(s), NAICS code(s), and whether or not any of their reported 
emissions are from a cogeneration unit, as part of their regularly 
scheduled annual reports, as proposed. More frequent reporting, such as 
when a change in parent company or NAICS occurs, is not required.

E. Applicability of the Reporting Requirements

1. Summary of Applicability of the Reporting Requirements
    The final rule applies to all reporters; it requires all facilities 
and suppliers subject to 40 CFR part 98 to report the additional 
information included in this rule. The descriptions of the terms 
``primary NAICS code(s),'' and ``additional NAICS code(s),'' and the 
definitions of ``United States parent company'' and ``cogeneration 
unit'' in the final rule apply only to this rule, which adds these data 
elements to the list of items that must be reported under 40 CFR 
98.3(c). The definitions and descriptions of terms in this final rule 
do not change the applicability of any subpart in the promulgated 40 
CFR part 98. They also do not change the level of reporting or who is 
required to submit reports.
    The definition of United States parent company does not override or 
change the meaning of similar terms that refer to company level or 
corporate level requirements. Many subparts (including 40 CFR part 98, 
subparts A, C, G, K, P, Q, R, Y, GG, and HH) use the term ``company 
records,'' which is defined in 40 CFR part 98, subpart A. The term 
``corporate level'' is used in 40 CFR part 98, subpart MM to require 
importers and exporters to report at the corporate level, rather than 
the facility level. ``Corporate documents'' are referred to in 40 CFR 
part 98, subpart A. None of these terms, definitions, or associated 
requirements are affected by the definition of ``United States parent 
company'' in the final rule.
    In addition, the definition of United States parent company in the 
final rule does not affect the definitions of ``importer'' and 
``exporter'' in 40 CFR part 98, subpart A, or the applicability of the 
suppliers source categories. The definition in the final rule also does 
not affect the term ``local distribution company'' as described in 40 
CFR part 98, subpart NN. These terms retain their meaning in 40 CFR 
part 98.
2. Summary of Major Changes Since Proposal
    There have been no changes since the proposal.
3. Summary of Public Comments and Responses
    No comments were received on the applicability of the reporting 
requirements.

F. Miscellaneous Public Comments and Responses

    EPA also received comments of a more general nature that did not 
relate specifically to reporting of parent company, NAICS codes, 
cogeneration, frequency of reporting, or applicability. These comments 
and EPA's responses are summarized in this section.
    Comments: Two commenters voiced general support for this rule. The 
commenters asserted that the inclusion of the requirements to report 
NAICS codes and corporate information will enable researchers to 
conduct analyses of corporate GHG emissions. Another commenter voiced 
opposition to the rule, stating that the government already has enough 
rules and regulations.
    Response: EPA thanks the commenters for their input. The focus of 
this rule is to collect accurate data on U.S. GHGs from suppliers and 
facilities above specified thresholds for use in analyzing and 
developing potential GHG policies and environmental programs. This rule 
will help EPA carry out its duties under the CAA while adding a very 
minimal burden to reporting entities.
    Comment: One commenter requested that EPA make the information 
collected under this rule available to the public and easily accessible 
to all interested parties.
    Response: EPA published a proposed confidentiality determination on 
July 7, 2010 (75 FR 39094), which addressed the confidentiality of data 
reported under 40 CFR part 98. In that action, EPA proposed which 
specific data elements would be treated as CBI and which data elements 
must be available to the public under CAA section 114. EPA has received 
several comments on the proposal, and is in the process of considering 
these comments. A final determination will be issued before any data 
are released, and data that are not determined to be confidential will 
be published in a way that will be easily accessible to the public.
    Comment: One commenter suggested that EPA should develop a 
comprehensive company-level GHG inventory.
    Response: While the development of a comprehensive company-level 
GHG inventory is outside the scope of this rulemaking, EPA notes the 
commenter's suggestion and thanks the commenter for their input. For a 
discussion of why EPA chose to require facility-level reporting, please 
see Section II.F of the preamble of the final Part 98 (74 FR 56273, 
October 30, 2009) as well as Section II.A of the preamble to this final 
rule. For a discussion of why EPA chose

[[Page 57682]]

a 25,000 metric ton CO2e reporting threshold for most 
sources, please see Section II.E. of the preamble of the final Part 98 
(74 FR 56271, October 30, 2009) as well as Section II.A of the preamble 
to this final rule.

G. Correction to Subpart A

    We also are correcting a drafting error in the revision to 40 CFR 
98.2(a)(2) that was published on July 12, 2010 (75 FR 39758). In the 
July 12, 2010 notice, we restructured 40 CFR 98.2(a) to move the lists 
of source categories that are subject to the rule from the text into 
tables. This restructuring revision made no substantive change to the 
applicability provisions of the rule, but just reformatted that section 
of the rule to better accommodate the addition of new source categories 
for which reporting would become effective in future years. To make 
this change required conforming changes to the text of 40 CFR 98.2(a) 
to refer to the tables. The July 12, 2010 change to 40 CFR 98.2(a)(2) 
reads that the rule applies to:

    A facility that contains any source category that is listed in 
Table A-4 of this subpart that emits 25,000 metric tons 
CO2e or more per year in combined emissions from 
stationary fuel combustion units, miscellaneous uses of carbonate, 
and all applicable source categories that are listed in Table A-3 
and Table A-4 of this subpart.

    The published clause inadvertently omitted the word ``and'' prior 
to the clause ``* * * that emits 25,000 metric tons CO2e * * 
*'' Despite this omission, the regulatory text as it appears in the 
July 12, 2010 final rule can and should be interpreted to apply to a 
facility that contains any source category listed in Table A-4 of this 
subpart if combined emissions from all applicable source categories at 
the facility are 25,000 metric tons CO2e per year or more. 
Nonetheless, restoring the inadvertently omitted word ``and'' to the 
paragraph makes it absolutely clear that the 25,000 metric tons 
CO2e threshold applies at the facility level and not at the 
source category level. This interpretation is clear from the original 
rule and from the preamble to the proposal for the subpart A 
restructuring (75 FR 12451 and 75 FR 12489) and the preamble to the 
final rule for the restructuring (75 FR 39739). As published, 40 CFR 
98.2(a)(2) is technically correct, but reinserting the ``and'' makes it 
clearer and less subject to misinterpretation, and makes the sentence 
structure parallel to that of the original rule text. Therefore, we are 
revising 40 CFR 98.2(a)(2) by restoring the word ``and'' to read as 
follows (emphasis added):

    A facility that contains any source category that is listed in 
Table A-4 of this subpart and that emits 25,000 metric tons 
CO2e or more per year in combined emissions from 
stationary fuel combustion units, miscellaneous uses of carbonate, 
and all applicable source categories that are listed in Table A-3 
and Table A-4 of this subpart.

III. Economic Impacts of the Final Rule

    This section of the preamble examines the costs and economic 
impacts of the final rulemaking and the estimated economic impacts of 
the rule on affected entities, including estimated impacts on small 
entities. Complete detail on the economic impacts of the final rule can 
be found in the text of the Economic Impact Analysis (EIA) for the 
final rule (located in docket EPA-HQ-OAR-2009-0925).

A. How were compliance costs estimated?

1. Summary of Method Used To Estimate Compliance Costs
    The cost analysis estimates the incremental contributions to total 
reporting burden expected under 40 CFR part 98 and compliance costs 
associated with reporting the data elements described above. EPA 
estimated compliance costs based on the time reporters spend meeting 
the requirements and the associated labor wage rates. EPA's estimated 
costs of compliance are discussed in this section of the preamble and 
in greater detail in Section 4 of the EIA.
    Labor Costs. All of the reporting cost estimates include the time 
of managers, lawyers, and technical staff in both the private sector 
and the public sector. To reflect that both management and technical 
staff will be involved in reporting the above data elements, an overall 
blended wage rate was developed based on estimates from the TRI program 
for similar data element reporting at similar facilities. Management 
staff is estimated to be involved in approximately 0.8 percent of the 
reporting, while technical staff is likely to be needed for the 
remaining 99.2 percent. Thus, the blended wage rate used in this 
analysis is $60.22 per hour. The amount of time required for facilities 
with one owner is 80 minutes per facility in the first year and 40 
minutes per facility in subsequent years; time estimated for facilities 
with more than one owner is 125 minutes per facility in the first year 
and 85 minutes per facility in subsequent years.
    Cost basis. The cost analysis is based on facilities and suppliers 
currently subject to 40 CFR part 98, including subparts that were 
finalized after EPA proposed the rule to require reporting of corporate 
parent information, NAICS codes and cogeneration.\18\ Specifically, the 
finalization of 40 CFR part 98, subparts T (Magnesium Production), FF 
(Underground Coal Mines), TT (Industrial Waste Landfills), and II 
(Industrial Wastewater Treatment) resulted in a higher number of 
facilities and suppliers subject to this final rule. The analysis does 
not account for those expected to be added to 40 CFR part 98 through 
upcoming actions. The methods and assumptions used to estimate the 
compliance costs for facilities and suppliers currently subject to the 
rule would likewise apply to those facilities and suppliers that may be 
added to the 40 CFR part 98 reporting program in the future. The 
addition of new facilities or suppliers would therefore increase the 
total compliance costs in proportion to the increase of the reporting 
universe. Accordingly, EPA does not expect the burden for newly added 
industries to change the conclusions of this economic analysis.
---------------------------------------------------------------------------

    \18\ See Mandatory Reporting of Greenhouse Gases from Magnesium 
Production, Underground Coal Mines, Industrial Wastewater Treatment, 
and Industrial Waste Landfills; Final Rule (75 FR 39736, July 12, 
2010).
---------------------------------------------------------------------------

B. What are the costs of the rule?

1. Summary of Costs
    As shown in Table 3 of this preamble, the total national cost under 
this final rule is approximately $944,000 in the first year and about 
$470,000 in subsequent years (all estimates are in $2006). Costs 
include a public sector burden estimate of $90,000 in the first year 
and $40,000 in subsequent years for program implementation and data 
verification activities. See Table 3 in Section IV.A of this preamble 
for a summary of the costs.

C. What are the economic impacts of the rule?

1. Summary of Economic Impacts
    EPA prepared an economic analysis to evaluate the impacts of the 
final rule. The analysis estimates the private direct compliance costs 
per facility and provides a national burden estimate, which includes 
public costs associated with program implementation and verification 
activities. Reporting costs were estimated to be less than $100 per 
facility. As a result, the rule is unlikely to result in significant 
changes in firms' production decisions or economic choices.

[[Page 57683]]

D. What are the impacts of the rule on small businesses?

1. Summary of Impacts on Small Businesses
    As required by the Regulatory Flexibility Act (RFA) and the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), EPA assessed the 
potential impacts of the rule on small entities (small businesses, 
governments, and non-profit organizations). (See Section IV.C of this 
preamble for definitions of small entities.)
    EPA conducted a screening assessment comparing compliance costs for 
affected industry sectors to industry-specific receipts data for 
establishments owned by small businesses. This ratio constitutes a 
``sales'' test that computes the annualized compliance costs of this 
rule as a percentage of sales and determines whether the ratio exceeds 
some level (e.g., 1 percent or 3 percent).
    The average ratio of annualized reporting program costs to revenues 
of small entities would be less than 0.01 percent. As a result, EPA has 
concluded that this action will not have a significant economic impact 
on a substantial number of small entities.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.
    Although this is not a significant economic rule, EPA prepared an 
analysis of the potential costs and benefits associated with the final 
rule to provide insights on the potential effects. This analysis is 
contained in the Economic Impact Analysis. A copy of the analysis is 
available in the docket (EPA-HQ-OAR-2009-0925) for this action and is 
briefly summarized here. In the economic analysis, EPA identified the 
final rule's compliance burden and the costs. The cost analysis, 
presented in Section III.B of this preamble, estimates the total 
annualized burden, which is presented in Table 3 of this preamble.

 Table 3--Cost Summary Under the Final Rulemaking (in Thousands, $2006)
------------------------------------------------------------------------
              Cost                      Year 1         Subsequent years
------------------------------------------------------------------------
National compliance.............                $854                $430
Public..........................                  90                  40
                                 ---------------------------------------
    Total.......................                 944                 470
------------------------------------------------------------------------
Note: Numbers may not add due to rounding.

    Overall, EPA has concluded that the costs of collecting U.S. parent 
company(s), NAICS codes, and cogeneration information as part of 40 CFR 
part 98 are outweighed by the potential benefits of more comprehensive 
information about GHG emissions.

B. Paperwork Reduction Act

    The information collection requirements for this final rule have 
been submitted for approval to OMB under the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq. An ICR document was previously prepared for 40 
CFR part 98 and was assigned EPA ICR number 2300.03. The information 
collection requirements of this amendment to 40 CFR part 98 are 
documented in an additional ICR document, which was assigned EPA ICR 
number 2374.02.
    The data collected through this final rule would be immediately 
available to EPA and could be used for the purposes of providing 
additional information to support more effective research and develop 
actions to address GHG emissions. For example, corporate parent and 
NAICS data would assist EPA in developing and improving emission 
inventories, as well as characterizing emissions data in several 
different ways. A more detailed understanding of the sources and 
operational categories of GHG emissions could lead to improvements in 
air pollution emissions information that is relied upon to develop 
effective control strategies. For example, EPA could use the NAICS code 
information gathered by this rule to compare results both within 
industries and across industry sectors.
    In addition, the information gathered through this rule will be 
immediately available to enhance EPA's implementation of various 
nonregulatory programs aimed at encouraging voluntary reductions of GHG 
emissions. Under the authority of CAA section 103, EPA has launched a 
variety of nonregulatory programs aimed at reducing emissions of GHGs. 
The additional data will assist EPA by providing more detailed 
information on possible sources, and facility operations within 
industrial sectors for EPA to work with in the context of these 
programs.
    This information collection is mandatory and will be carried out 
under CAA section 114. EPA published a proposed confidentiality 
determination on July 7, 2010 (75 FR 39094) that specified which data 
reporting elements in 40 CFR part 98 would be treated as CBI and which 
data elements must be available to the public under CAA section 114. A 
final determination will be issued before any part 98 data are 
released.
    As outlined in ICR number 2374.02, the projected average annual 
cost and hour burden for non-Federal respondents is about $571,000 and 
9,500 hours. The estimated average annual burden per response is 0.15 
hour; the frequency of response is annual for all respondents that must 
comply with the final rule; and the estimated average number of likely 
respondents per year is 10,551. The cost burden to respondents 
resulting from the collection of information includes the total capital 
cost annualized over the equipment's expected useful life (averaging 
$0), a total operation and maintenance component (averaging $0 per 
year), and a labor cost component (averaging $571,000). Burden is 
defined at 5 CFR 1320.3(b). These cost numbers differ from those shown 
elsewhere in the EIA (EPA-HQ-OAR-2009-0925) because ICR costs represent 
the average cost over the first three years of the rule, whereas the 
EIA reports costs separately for the first and subsequent years of the 
rule. Also, the total cost estimate of the rule in the EIA includes the 
cost to the Agency to administer the program. The ICR differentiates 
between respondent burden and cost to the Agency.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

[[Page 57684]]

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment 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 the final rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of the final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The 
additional per-entity costs under the final rule are substantially 
smaller (less than $81 in year 1 and $41 in subsequent years) than the 
burden for the overall rule. The costs are therefore not enough to 
constitute a significant economic impact on a substantial number of 
small entities. The small entities directly regulated by the final rule 
include small businesses across all sectors encompassed by the rule, 
small governmental jurisdictions and small non-profits. We have 
determined that some small businesses will be affected because their 
production processes emit GHGs that must be reported, or because they 
have stationary combustion units on site that emit GHGs that must be 
reported. Small governments and small non-profits are generally 
affected because they have regulated landfills or stationary combustion 
units on site, or because they own a local distribution company subject 
to 40 CFR part 98, subpart NN (natural gas suppliers).
    At promulgation of 40 CFR part 98, EPA examined the impact on small 
entities (74 FR 56369, October 30, 2009). In addition, EPA described 
the steps taken by EPA to reduce the impact of 40 CFR part 98 on small 
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and Tribal governments and the private sector. Federal 
agencies must also develop a plan to provide notice to small 
governments that might be significantly or uniquely affected by any 
regulatory requirements. The plan must enable officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates and must inform, educate, and advise small 
governments on compliance with the regulatory requirements.
    The final rule does not contain a Federal mandate that may result 
in expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or the private sector in any one year. 
As shown in the EIA (EPA-HQ-OAR-2009-0925), EPA estimated the several 
national cost estimates and found annual expenditures were below $100 
million threshold. Thus, the final rule is not subject to the 
requirements of UMRA sections 202 or 205.
    The final rule is also not subject to the requirements of UMRA 
section 203 because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. The final new rule 
requires facilities and suppliers already subject to 40 CFR part 98 to 
provide additional data in each annual GHG report, and the additional 
data elements required are the same for all reporters (private and 
public). In addition, EPA's small entity analysis shows the average 
ratio of annualized reporting program costs to revenues would be less 
than 0.01 percent.
    This final rule amends 40 CFR part 98 and applies directly to 
reporters that supply fuel or industrial gases that when used emit 
GHGs, and to reporters that directly emit GHGs. The final rule does not 
apply to governmental entities unless the government entity owns a 
facility that directly emits GHGs above threshold levels such as a 
landfill or large stationary combustion source. In addition, the final 
rule does not impose any implementation responsibilities on State, 
local, or Tribal governments and it is not expected to increase the 
cost of existing regulatory programs managed by those governments. 
Thus, the impacts on governments affected by the final rule are 
expected to be minimal.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in EO 13132. However, for a more detailed discussion about 
how 40 CFR part 98 relates to existing State programs, please see 
Section II of the preamble to the final Part 98 (74 FR 56266, October 
30, 2009).
    This final rule applies directly to reporters that supply fuel or 
chemicals that when used emit GHGs or facilities that directly emit 
GHGs. It does not apply to governmental entities unless the government 
entity owns a facility that directly emits GHGs above threshold levels 
such as a landfill or large stationary combustion source, so relatively 
few government facilities would be affected. This final rule also does 
not limit the power of States or localities to collect GHG data and/or 
regulate GHG emissions. Thus, EO 13132 does not apply to this action.

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

    This final rule is not expected to have Tribal implications, as 
specified in EO 13175 (65 FR 67249, November 9, 2000). The final rule 
applies directly to entities that supply fuel or chemicals that when 
used emit GHGs or facilities that directly emit GHGs. This final rule 
does not pose significant costs on either a per-entity or national 
basis; few, if any, facilities or suppliers that are expected to be 
affected by the final rule are anticipated to be owned by Tribal 
governments. This final rule also does not limit the power of Tribes to 
collect GHG data and/or regulate GHG emissions. Thus, EO 13175 does not 
apply to the final rule.
    Although EO 13175 does not apply to this final rule, EPA sought 
opportunities to provide information to Tribal governments and 
representatives during development of the rule, as documented in the 
preamble to the promulgated final Part 98 (74 FR 56371).

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

    EPA interprets EO 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 EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

[[Page 57685]]

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

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

I. National Technology Transfer and Advancement Act

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

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The final rule does not affect the level of protection 
provided to human health or the environment because it addresses 
information collection and reporting.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective November 22, 2010.

List of Subjects in 40 CFR Part 98

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

    Dated: September 16, 2010.
Lisa P. Jackson,
Administrator.

0
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. Section 98.2 is amended by revising paragraph (a)(2) to read as 
follows:

Sec.  98.2  Who must report?

    (a) * * *
    (2) A facility that contains any source category that is listed in 
Table A-4 of this subpart and that emits 25,000 metric tons 
CO2e or more per year in combined emissions from stationary 
fuel combustion units, miscellaneous uses of carbonate, and all 
applicable source categories that are listed in Table A-3 and Table A-4 
of this subpart. For these facilities, the annual GHG report must cover 
stationary fuel combustion sources (subpart C of this part), 
miscellaneous use of carbonates (subpart U of this part), and all 
applicable source categories listed in Table A-3 and Table A-4 of this 
subpart.
* * * * *
0
3. Section 98.3 is amended as follows:
0
a. By adding paragraph (c)(4)(v).
0
b. By adding paragraph (c)(10).
0
c. By adding paragraph (c)(11).

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

* * * * *
    (c) * * *
    (4) * * *
    (v) Indicate (yes or no) whether reported emissions include 
emissions from a cogeneration unit located at the facility.
* * * * *
    (10) NAICS code(s) that apply to the reporting entity. (i) Primary 
NAICS code. Report the NAICS code that most accurately describes the 
reporting entity's primary product/activity/service. The primary 
product/activity/service is the principal source of revenue for the 
reporting entity. A reporting entity that has two distinct products/
activities/services providing comparable revenue may report a second 
primary NAICS code.
    (ii) Additional NAICS code(s). Report all additional NAICS codes 
that describe all product(s)/activity(s)/service(s) at the reporting 
entity that are not related to the principal source of revenue.
    (11) Legal name(s) and physical address(es) of the highest-level 
United States parent company(s) of the reporting entity and the 
percentage of ownership interest for each listed parent company as of 
December 31 of the year for which data are being reported according to 
the following instructions:
    (i) If the reporting entity is entirely owned by a single United 
States company that is not owned by another company, provide that 
company's legal name and physical address as the United States parent 
company and report 100 percent ownership.
    (ii) If the reporting entity is entirely owned by a single United 
States company that is, itself, owned by another company (e.g., it is a 
division or subsidiary of a higher-level company), provide the legal 
name and physical address of the highest-level company in the ownership 
hierarchy as the United States parent company and report 100 percent 
ownership.
    (iii) If the reporting entity is owned by more than one United 
States company (e.g., company A owns 40 percent, company B owns 35 
percent, and company C owns 25 percent), provide the legal names and 
physical addresses of all the highest-level companies with an ownership 
interest as the United States parent companies, and report the percent 
ownership of each company.
    (iv) If the reporting entity is owned by a joint venture or a 
cooperative, the joint venture or cooperative is its own United States 
parent company. Provide the legal name and physical address of the 
joint venture or cooperative as the United States parent company, and 
report 100 percent ownership by the joint venture or cooperative.

[[Page 57686]]

    (v) If the reporting entity is entirely owned by a foreign company, 
provide the legal name and physical address of the foreign company's 
highest-level company based in the United States as the United States 
parent company, and report 100 percent ownership.
    (vi) If the reporting entity is partially owned by a foreign 
company and partially owned by one or more U.S. companies, provide the 
legal name and physical address of the foreign company's highest-level 
company based in the United States, along with the legal names and 
physical addresses of the other U.S. parent companies, and report the 
percent ownership of each of these companies.
    (vii) If the reporting entity is a federally owned facility, report 
``U.S. Government'' and and do not report physical address or percent 
ownership.
* * * * *

0
3. Section 98.6 is amended by adding definitions of ``Cogeneration 
unit,'' ``North American Industry Classification System (NAICS) 
code(s),'' ``Physical address,'' and ``United States parent 
company(s)'' in alphabetical order to read as follows:

Sec.  98.6  Definitions.

* * * * *
    Cogeneration unit means a unit that produces electrical energy and 
useful thermal energy for industrial, commercial, or heating or cooling 
purposes, through the sequential or simultaneous use of the original 
fuel energy.
* * * * *
    North American Industry Classification System (NAICS) code(s) means 
the six-digit code(s) that represents the product(s)/activity(s)/
service(s) at a facility or supplier as listed in the Federal Register 
and defined in ``North American Industrial Classification System Manual 
2007,'' available from the U.S. Department of Commerce, National 
Technical Information Service, Alexandria, VA 22312, phone (703) 605-
6000 or (800) 553-6847. http://www.census.gov/eos/www/naics/.
* * * * *
    Physical address, with respect to a United States parent company as 
defined in this section, means the street address, city, state and zip 
code of that company's physical location.
* * * * *
    United States parent company(s) means the highest-level United 
States company(s) with an ownership interest in the reporting entity as 
of December 31 of the year for which data are being reported.
* * * * *

[FR Doc. 2010-23674 Filed 9-17-10; 8:45 am]
BILLING CODE 6560-50-P
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