10434 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 

interested public has been involved in 

its development for the last several 

years, including state litigation 

concerning the Rule. Therefore, EPA 

does not anticipate extending the public 

comment period beyond 30 days absent 

extraordinary or compelling 

circumstances. 

III. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this proposed action 

merely approves State law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by State law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Air pollution control, Environmental 

protection, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

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

Dated: February 9, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2012–4172 Filed 2–21–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 98 

[EPA–HQ–OAR–2011–0028; FRL–9633–6] 

RIN 2060–AQ70 

Mandatory Reporting of Greenhouse 

Gases Rule: Confidentiality 

Determinations and Best Available 

Monitoring Methods Provisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: This action re-proposes 

confidentiality determinations for the 

data elements in subpart I, Electronics 

Manufacturing source category, of the 

Mandatory Reporting of Greenhouse 

Gases Rule. On July 7, 2010, the EPA 

proposed confidentiality determinations 

for then-proposed subpart I data 

elements and is now issuing this reproposal due to significant changes to 

certain data elements in the final 

subpart I reporting requirements. In 

addition, the EPA is proposing 

amendments to subpart I regarding the 

calculation and reporting of emissions 

from facilities that use best available 

monitoring methods. Proposed 

amendments would remove the 

obligation to recalculate and resubmit 

emission estimates for the period during 

which the facility used best available 

monitoring methods after the facility 

has begun using all applicable 

monitoring methods of subpart I. 

DATES: Comments. Comments must be 

received on or before March 23, 2012 

unless a public hearing is requested by 

February 29, 2012. If a timely hearing 

request is submitted, we must receive 

written comments on or before April 9, 

2012. 

Public Hearing. The EPA does not 

plan to conduct a public hearing unless 

requested. To request a hearing, please 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section 

by February 29, 2012. Upon such 

request, the EPA will hold the hearing 

on March 8, 2012 in the Washington, DC 

area starting at 9 a.m., local time. EPA 

will provide further information about 

the hearing on its Web page if a hearing 

is requested. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2011–0028, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Email: GHGReportingCBI@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Environmental Protection 

Agency, EPA Docket Center (EPA/DC), 

Mailcode 6102T, Attention Docket ID 

No. EPA–HQ–OAR–2011–0028, 1200 

Pennsylvania Avenue NW., Washington, 

DC 20460. 

• Hand Delivery: EPA Docket Center, 

Public Reading Room, EPA West 

Building, Room 3334, 1301 Constitution 

Avenue NW., Washington, DC 20004. 

Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2011– 

0028. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be confidential 

business information (CBI) or other 

information whose disclosure is 

restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or email. Send or 

deliver information identified as CBI to 

only the mail or hand/courier delivery 

address listed above, attention: Docket 

ID No. EPA–HQ–OAR–2011–0028. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means the EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email, 


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comment directly to the EPA without 

going through http:// 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, the EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If the EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, the EPA may not 

be able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Docket, EPA/DC, EPA West, 

Room B102, 1301 Constitution Ave. 

NW., Washington, DC. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Air Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Carole Cook, Climate Change Division, 

Office of Atmospheric Programs (MC– 

6207J), Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460; telephone 

number: (202) 343–9263; fax number: 

(202) 343–2342; email address: 

GHGReportingRule@epa.gov. For 

technical information, contact the 

Greenhouse Gas Reporting Rule Hotline 

at: http://www.epa.gov/climatechange/ 

emissions/ghgrule_contactus.htm. 

Alternatively, contact Carole Cook at 

(202) 343–9263. 

SUPPLEMENTARY INFORMATION: Additional 

information on submitting comments: 

To expedite review of your comments 

by agency staff, you are encouraged to 

send a separate copy of your comments, 

in addition to the copy you submit to 

the official docket, to Carole Cook, U.S. 

EPA, Office of Atmospheric Programs, 

Climate Change Division, Mail Code 

6207–J, Washington, DC 20460, 

telephone (202) 343–9263, email 

address: GHGReportingRule@epa.gov. 

Worldwide Web (WWW). In addition 

to being available in the docket, an 

electronic copy of this proposal, 

memoranda to the docket, and all other 

related information will also be 

available through the WWW on the 

EPA’s Greenhouse Gas Reporting Rule 

Web site at http://www.epa.gov/ 

climatechange/. 

Acronyms and Abbreviations. The 

following acronyms and abbreviations 

are used in this document. 

BAMM best available monitoring methods 

CAA Clean Air Act 

CO2 carbon dioxide 

CBI confidential business information 

CFR Code of Federal Regulations 

DRE Destruction or Removal Efficiency 

EPA U.S. Environmental Protection Agency 

F–GHG fluorinated greenhouse gas 

GHG greenhouse gas 

HTF heat transfer fluid 

mtCO2e metric ton carbon dioxide 

equivalent 

N2O nitrous oxide 

NTTAA National Technology Transfer and 

Advancement Act of 1995 

OMB Office of Management & Budget 

RFA Regulatory Flexibility Act 

RSASTP Random Sampling Abatement 

System Testing Program 

UMRA Unfunded Mandates Reform Act of 

1995 

U.S. United States 

WWW Worldwide Web 

Organization of This Document. The 

following outline is provided to aid in 

locating information in this preamble. 

Section I of this preamble provides 

general information on the Greenhouse 

Gas Reporting Program and preparing 

comments on this action. Sections II and 

III discuss the CBI re-proposal, and 

Section IV discusses the proposed 

amendments to the best available 

monitoring provisions. Section V 

discusses statutes and executive orders 

applicable to this action. 

I. General Information 

A. What is the purpose of this action? 

B. Does this action apply to me? 

C. Legal Authority 

D. What should I consider as I prepare my 

comments to the EPA? 

II. Background and General Rationale on CBI 

Re-Proposal 

A. Background on CBI Re-Proposal 

B. What is the rationale for re-proposing 

the CBI determinations for subpart I? 

C. How does the Subpart I Heat Transfer 

Fluid Provisions final rule affect the CBI 

re-proposal? 

III. Re-Proposal of CBI Determinations for 

Subpart I 

A. Overview 

B. Request for Comments 

C. Approach to Making Confidentiality 

Determinations 

D. Proposed Confidentiality 

Determinations for Individual Data 

Elements in Two Data Categories 

E. Commenting on the Proposed 

Confidentiality Determinations in Two 

Direct Emitter Categories 

IV. Background and Rationale for the 

Proposed Amendments to the Best 

Available Monitoring Method Provisions 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. What is the purpose of this action? 

The EPA is re-proposing 

confidentiality determinations for the 

data elements in subpart I of 40 CFR 

part 98 of the Mandatory Reporting of 

Greenhouse Gases Rule (hereinafter 

referred to as ‘‘Part 98’’). Subpart I of 

Part 98 requires monitoring and 

reporting of greenhouse gas (GHG) 

emissions from electronics 

manufacturing. The electronics 

manufacturing source category 

(hereinafter referred to as ‘‘subpart I’’) 

includes facilities that have annual 

emissions equal to or greater than 

25,000 mtCO2e. 

The proposed confidentiality 

determinations in this notice cover all of 

the data elements that are currently in 

subpart I except for those that are in the 

‘‘Inputs to Emission Equations’’ data 

category. The covered data elements and 

their proposed data category 

assignments are listed by data category 

in the memorandum entitled ‘‘Proposed 

Data Category Assignments for Subpart 

I’’ in Docket EPA–HQ–OAR–2011–0028. 

This action also proposes 

amendments to provisions in subpart I 

regarding the calculation and reporting 

of emissions from facilities that use best 

available monitoring methods (BAMM). 

Following the December 1, 2010 

publication finalizing subpart I in the 

‘‘Mandatory Reporting of Greenhouse 

Gases: Additional Sources of 


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Fluorinated GHGs’’ rule (75 FR 74774, 

hereinafter referred to as the ‘‘final 

subpart I rule’’), industry members 

requested reconsideration of several 

provisions in the final subpart I rule. 

This action responds to a petition for 

reconsideration of the specific subpart I 

provisions that require facilities that 

have been granted extensions to use 

BAMM to recalculate their emissions for 

the time period for which BAMM was 

granted at a later date, after they have 

begun following all applicable 

monitoring requirements of subpart I. 

In today’s notice, the EPA is not 

taking any action on other issues raised 

by the petitioners. Although we are not 

seeking comment on those issues at this 

time, the EPA reserves the right to 

further consider those issues at a later 

time. 

B. Does this action apply to me? 

This proposal affects entities that are 

required to submit annual GHG reports 

under subpart I of Part 98. The 

Administrator determined that this 

action is subject to the provisions of 

Clean Air Act (CAA) section 307(d). See 

CAA section 307(d)(1)(V) (the 

provisions of CAA section 307(d) apply 

to ‘‘such other actions as the 

Administrator may determine’’). Part 98 

and this action affect owners and 

operators of electronics manufacturing 

facilities. Affected categories and 

entities include those listed in Table 1 

of this preamble. 

TABLE 1—EXAMPLES OF AFFECTED ENTITIES BY CATEGORY

Category NAICS Examples of affected facilities 

Electronics Manufacturing ........................ 334111 Microcomputers manufacturing facilities. 

334413 Semiconductor, photovoltaic (solid-state) device manufacturing facilities. 

334419 Liquid crystal display unit screens manufacturing facilities. 

334419 Micro-electro-mechanical systems manufacturing facilities. 

Table 1 of this preamble lists the 

types of entities that potentially could 

be affected by the reporting 

requirements under the subpart covered 

by this proposal. However, this list is 

not intended to be exhaustive, but rather 

provides a guide for readers regarding 

facilities likely to be affected by this 

action. Other types of facilities not 

listed in the table could also be subject 

to reporting requirements. To determine 

whether you are affected by this action, 

you should carefully examine the 

applicability criteria found in 40 CFR 

part 98, subpart A as well as 40 CFR 

part 98, subpart I. If you have questions 

regarding the applicability of this action 

to a particular facility, consult the 

person listed in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble. 

C. Legal Authority 

The EPA is proposing rule 

amendments under its existing CAA 

authority, specifically authorities 

provided in CAA section 114. As stated 

in the preamble to the 2009 final rule 

(74 FR 56260) and the Response to 

Comments on the Proposed Rule, 

Volume 9, Legal Issues, CAA section 

114 provides the EPA broad authority to 

obtain the information in Part 98, 

including those in subpart I, because 

such data would inform and are relevant 

to the EPA’s carrying out a wide variety 

of CAA provisions. As discussed in the 

preamble to the initial proposed Part 98 

(74 FR 16448, April 10, 2009), CAA 

section 114(a)(1) authorizes the 

Administrator to require emissions 

sources, persons subject to the CAA, 

manufacturers of control or process 

equipment, or persons whom the 

Administrator believes may have 

necessary information to monitor and 

report emissions and provide such other 

information the Administrator requests 

for the purposes of carrying out any 

provision of the CAA. 

D. What should I consider as I prepare 

my comments to the EPA? 

1. Submitting Comments That Contain 

CBI 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information in a disk or CD 

ROM that you mail to the EPA, mark the 

outside of the disk or CD ROM as CBI 

and then identify electronically within 

the disk or CD ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information marked as CBI will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or email. Send or 

deliver information identified as CBI to 

only the mail or hand/courier delivery 

address listed above, attention: Docket 

ID No. EPA–HQ–OAR–2011–0028. 

If you have any questions about CBI 

or the procedures for claiming CBI, 

please consult the person identified in 

the FOR FURTHER INFORMATION CONTACT

section. 

2. Tips for Preparing Your Comments 

When submitting comments, 

remember to: 

Identify the rulemaking by docket 

number and other identifying 

information (e.g., subject heading, 

Federal Register date and page number). 

Follow directions. The EPA may ask 

you to respond to specific questions or 

organize comments by referencing a 

CFR part or section number. 

Explain why you agree or disagree, 

and suggest alternatives and substitute 

language for your requested changes. 

Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow us to reproduce your estimate. 

Provide specific examples to illustrate 

your concerns and suggest alternatives. 

Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

Make sure to submit your information 

and comments by the comment period 

deadline identified in the preceding 

section titled DATES. To ensure proper 

receipt by the EPA, be sure to identify 

the docket ID number assigned to this 

action in the subject line on the first 

page of your response. You may also 

provide the name, date, and Federal 

Register citation. 

To expedite review of your comments 

by agency staff, you are encouraged to 

send a separate copy of your comments, 

in addition to the copy you submit to 

the official docket, to Carole Cook, U.S. 

EPA, Office of Atmospheric Programs, 

Climate Change Division, Mail Code 

6207–J, Washington, DC 20460, 

telephone (202) 343–9263, email 

GHGReportingCBI@epa.gov. You are 

also encouraged to send a separate copy 

of your CBI information to Carole Cook 


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1Please note that the EPA also made other final 

revisions to subpart I in 2011 including an 

extension of best available monitoring methods (76 

FR 36339, June 22, 2011) and changes to provide 

flexibility (76 FR 59542, September 27, 2011), but 

these actions did not change the list of reported 

data elements for subpart I. 

at the provided mailing address in the 

FOR FURTHER INFORMATION CONTACT

section. Please do not send CBI to the 

electronic docket or by email. 

II. Background and General Rationale 

on CBI Re-Proposal 

A. Background on CBI Re-Proposal 

On October 30, 2009, the EPA 

published the Mandatory GHG 

Reporting Rule, 40 CFR part 98, for 

collecting information regarding GHGs 

from a broad range of industry sectors 

(74 FR 56260). Under Part 98 and its 

subsequent amendments, certain 

facilities and suppliers above specified 

thresholds are required to report GHG 

information to the EPA annually. For 

facilities, this includes those that 

directly emit GHGs (‘‘direct emitters’’) 

and those that geologically sequester or 

otherwise inject carbon dioxide (CO2) 

underground. The data to be reported 

consists of GHG emission and supply 

information as well as other data, 

including information necessary to 

characterize, quantify, and verify the 

reported emissions and supplied 

quantities. In the preamble to Part 98, 

we stated, ‘‘Through a notice and 

comment process, we will establish 

those data elements that are ‘emissions 

data’ and therefore [under CAA section 

114(c)] will not be afforded the 

protections of CBI. As part of that 

exercise, in response to requests 

provided in comments, we may identify 

classes of information that are not 

emissions data and are CBI (74 FR 

56287, October 30, 2009).’’ 

The EPA proposed confidentiality 

determinations for Part 98 data 

elements, including data elements 

contained in subpart I in the July 7, 

2010 proposed CBI determination 

proposal (75 FR 39094, hereafter 

referred to as the ‘‘July 7, 2010 CBI 

proposal’’). The data reporting 

requirements for subpart I were 

finalized on December 1, 2010 (75 FR 

74774) as an amendment to Part 98. As 

explained in more detail in Section II.C 

of this preamble, many data elements 

were added or changed following 

proposal of the subpart I reporting 

requirements. Further, in a separate 

action, the EPA is finalizing 

amendments to subpart I, which revise 

one data element and add two new data 

elements. See ‘‘Greenhouse Gas 

Reporting Program: Electronics 

Manufacturing (Subpart I): Revisions to 

Heat Transfer Fluid Provisions’’ 

(hereinafter referred to as the ‘‘Subpart 

I Heat Transfer Fluid Provisions final 

rule’’). In light of the above, today we 

are re-proposing for public comment the 

confidentiality determinations for the 

data elements in subpart I to reflect the 

finalized new and revised data elements 

in this subpart. 

On May 26, 2011, the EPA published 

the final CBI determinations for the data 

elements in 34 Part 98 subparts, except 

for those data elements that were 

assigned to the ‘‘Inputs to Emission 

Equations’’ data category (76 FR 30782, 

hereinafter referred to as the ‘‘Final CBI 

Rule’’). That final rule did not include 

CBI determinations for subpart I. 

The Final CBI Rule: (1) Created and 

finalized 22 data categories for Part 98 

data elements; (2) assigned data 

elements in 34 subparts to appropriate 

data categories; (3) for 16 data 

categories, issued category-based final 

CBI determinations for all data elements 

assigned to the category; and (4) for the 

other five data categories (excluding the 

inputs to emission equations category), 

determined that the data elements 

assigned to those categories are not 

‘‘emission data’’ but made individual 

final CBI determination for those data 

elements. The EPA also did not make 

categorical determinations regarding the 

CBI status of these five categories. The 

EPA did not make final confidentiality 

determinations for the data elements 

assigned to the ‘‘Inputs to Emission 

Equations’’ data category. 

The EPA finalized subpart I reporting 

requirements on December 1, 2010 (75 

FR 74774). The final subpart I rule 

substantively revised data reporting 

elements and added new data reporting 

elements relative to the July 7, 2010 CBI 

proposal. In addition, in a separate 

action, the EPA is finalizing 

amendments to subpart I, which revises 

one data reporting element and adds 

two new data reporting elements. 

Today’s re-proposal addresses the 

subpart I data elements as finalized, 

including the amendments discussed 

above.1

B. What is the rationale for re-proposing 

the CBI determinations for subpart I? 

In the July 7, 2010 CBI Proposal, the 

EPA proposed CBI determinations for 

the data elements in then-proposed 

subpart I because the EPA initially did 

not anticipate any significant change to 

these data elements when finalizing the 

subpart I reporting requirements. In 

light of the changes described in section 

II.A of this preamble to the subpart I 

data elements since the July 7, 2010 CBI 

proposal, the EPA is re-proposing the 

confidentiality determinations for the 

data elements in subpart I. 

Because this is a re-proposal, the 

agency is not responding to previous 

comments submitted on the July 7, 2010 

CBI proposal relative to the data 

elements in this subpart. Although we 

considered those comments when 

developing this re-proposal, we 

encourage you to resubmit all relevant 

comments to ensure full consideration 

by the EPA in this rulemaking. In 

resubmitting previous comments, please 

make any necessary changes to clarify 

that you are addressing the re-proposal 

and add details as requested in Section 

III.E of this preamble. 

C. How does the Subpart I Heat Transfer 

Fluid Provisions final rule affect the CBI 

re-proposal? 

In a separate action, the EPA is 

finalizing technical revisions, 

clarifications, and other amendments to 

subpart I of Part 98 in the Subpart I Heat 

Transfer Fluid Provisions final rule. 

The Subpart I Heat Transfer Fluid 

Provisions final rule is revising one and 

adding two subpart I data elements that 

are not inputs. Accordingly, we are 

making data category assignments to 

these three new and revised elements as 

finalized in the Subpart I Heat Transfer 

Fluid Provisions final rule. The revised 

data element includes a wording change 

from ‘‘each fluorinated GHG used’’ to 

‘‘each fluorinated heat transfer fluid 

used.’’ The two new data elements 

require a facility to report (1) the date 

on which the facility began monitoring 

emissions of fluorinated heat transfer 

fluids (HTFs) and (2) whether the 

emission estimate includes emissions 

from all applications or only from the 

applications specified in the definition 

of fluorinated heat transfer fluids. The 

re-proposal addresses the data elements 

we are finalizing in the Subpart I Heat 

Transfer Fluid Provisions final rule, 

published as a separate action. 

III. Re-Proposal of CBI Determinations 

for Subpart I 

A. Overview 

We propose to assign each of the data 

elements in subpart I, a direct emitter 

subpart, to one of 11 direct emitter data 

categories created in the Final CBI Rule. 

For eight of the 11 direct emitter 

categories, the EPA has made categorical 

confidentiality determinations, finalized 

in the Final CBI rule. For these eight 

categories, the EPA is proposing to 

apply the same categorical 

confidentiality determinations (made in 

the Final CBI rule) to the subpart I 

reporting elements assigned to each of 

these categories. 


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2As mentioned above, EPA determined that data 

elements in these two categories are not ‘‘emission 

data’’ under CAA section 114(c) and 40 CFR 

2.301(a)(2)(i) for purposes of determining the GHG 

emissions to be reported under Part 98. That 

determination would apply to data elements in 

subpart I assigned to those categories through this 

rulemaking. 

In the Final CBI Rule, for two of the 

11 data categories, the EPA did not 

make categorical confidentiality 

determinations, but rather made 

confidentiality determinations on an 

element-by-element basis. We are 

therefore following the same approach 

in this action for the subpart I reporting 

elements assigned to these two data 

categories. For three data elements 

within these two data categories, the 

EPA is proposing to make no CBI 

determination and, instead, make a 

case-by-case determination for actual 

data reported in these elements, as 

described in more detail in Section III.D 

of this preamble. 

Lastly, in the Final CBI Rule, for the 

final data category, ‘‘Inputs to Emission 

Equations,’’ the EPA did not make a 

final confidentiality determination and 

indicated that this issue would be 

addressed in a future action. Please note 

that in the August 25, 2011 Final 

Deferral, the EPA has already assigned 

certain subpart I data elements to the 

inputs data category. We are not 

proposing to assign any additional data 

elements to the inputs data category in 

this action. Please see the following 

Web site for further information on this 

topic: http://www.epa.gov/ 

climatechange/emissions/CBI.html. 

Table 2 of this preamble summarizes 

the confidentiality determinations that 

were made in the Final CBI Rule for the 

following direct emitter data categories 

created in that notice excluding the 

‘‘Inputs to Emission Equations’’ data 

category as final determinations for that 

category have not yet been made. 

TABLE 2—SUMMARY OF FINAL CONFIDENTIALITY DETERMINATIONS FOR DIRECT EMITTER DATA CATEGORIES

Data category 

Confidentiality determination for data elements in each 

category 

Emission data a

Data that are not 

emission data 

and not CBI 

Data that are not 

emission data 

but are CBI b

Facility and Unit Identifier Information ............................................................................. X ............................ ............................

Emissions ......................................................................................................................... X ............................ ............................

Calculation Methodology and Methodological Tier ......................................................... X ............................ ............................

Data Elements Reported for Periods of Missing Data that are Not Inputs to Emission 

Equations ..................................................................................................................... X ............................ ............................

Unit/Process ‘‘Static’’ Characteristics that are Not Inputs to Emission Equations .......... ............................ Xc Xc

Unit/Process Operating Characteristics that are Not Inputs to Emission Equations ...... ............................ Xc Xc

Test and Calibration Methods ......................................................................................... ............................ X ............................

Production/Throughput Data that are Not Inputs to Emission Equations ....................... ............................ ............................ X 

Raw Materials Consumed that are Not Inputs to Emission Equations ........................... ............................ ............................ X 

Process-Specific and Vendor Data Submitted in BAMM Extension Requests ............... ............................ ............................ X 

a Under CAA section 114(c), ‘‘emission data’’ are not entitled to confidential treatment. The term ‘‘emission data’’ is defined at 40 CFR 

2.301(a)(2)(i). bSection 114(c) of the CAA affords confidential treatment to data (except emission data) that are considered CBI. 

c In the Final CBI Rule, this data category contains both data elements determined to be CBI and those determined not to be CBI. 

B. Request for Comments 

Today’s action provides affected 

businesses subject to Part 98, other 

stakeholders, and the general public an 

opportunity to provide comment on 

several aspects of this proposal. For the 

CBI component of this rulemaking, we 

are soliciting comment on the following 

specific issues. 

First, we seek comment on the 

proposed data category assignment for 

each of these data elements. If you 

believe that the EPA has improperly 

assigned certain data elements in this 

subpart to one of the data categories, 

please provide specific comments 

identifying which data elements may be 

mis-assigned along with a detailed 

explanation of why you believe them to 

be incorrectly assigned and in which 

data category you believe they would 

best belong. 

Second, we seek comment on our 

proposal to apply the categorical 

confidentiality determinations (made in 

the Final CBI Rule for eight direct 

emitter data categories) to the data 

elements in subpart I that are assigned 

to those categories. 

Third, for those data elements 

assigned to the two direct emitter data 

categories without categorical CBI 

determinations, we seek comment on 

the individual confidentiality 

determinations we are proposing for 

these data elements. If you comment on 

this issue, please provide specific 

comment along with detailed rationale 

and supporting information on whether 

such data element does or does not 

qualify as CBI. 

C. Approach to Making Confidentiality 

Determinations 

For subpart I, the EPA proposes to 

assign each data element to one of 10 

non-inputs direct emitter data 

categories. Please see the memorandum 

entitled ‘‘Proposed Data Category 

Assignments for Subpart I’’ in the 

docket: EPA–HQ–OAR–2011–0028 for a 

list of the data elements in these 

subparts and their proposed category 

assignment. As noted previously, the 

EPA made categorical confidentiality 

determinations for eight direct emitter 

data categories and the EPA proposes to 

apply those final determinations to the 

data elements assigned to those 

categories in this rulemaking. For the 

data elements in the two direct emitter 

data categories that do not have 

categorical confidentiality 

determinations, we are proposing to 

make confidentiality determinations on 

an individual data element basis.2

The following two direct emitter data 

categories do not have category-based 

CBI determinations: ‘‘Unit/Process 

‘Static’ Characteristics That are Not 

Inputs to Emission Equations’’ and 

‘‘Unit/Process Operating Characteristics 

That are Not Inputs to Emission 

Equations.’’ In Section III.D of this 

preamble, the data elements in these 

two data categories that are part of the 

annual GHG report submission and part 

of the subpart I BAMM use extension 

requests are identified in a table. For all 

data elements in these two data 

categories, the EPA states in the table 

the reasons for proposing to determine 


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Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 10439 

that each does or does not qualify as CBI 

under CAA section 114(c). These data 

elements are also listed individually by 

data category and proposed 

confidentiality determination in the 

memorandum entitled ‘‘Proposed Data 

Category Assignments for Subpart I’’ in 

Docket EPA–HQ–OAR–2011–0028. For 

three data elements, the EPA is 

proposing to make no CBI determination 

and, instead, make a case-by-case 

determination for actual data reported 

in these elements, as described in more 

detail in the table in Section III.D of this 

preamble. The EPA is specifically 

soliciting comments on the CBI 

proposals for data elements in these two 

data categories. 

D. Proposed Confidentiality 

Determinations for Individual Data 

Elements in Two Data Categories 

As described in Section III.C of this 

preamble, the EPA is proposing 

confidentiality determinations on an 

element-by-element basis for those that 

we are proposing to assign to the ‘‘Unit/ 

Process ‘Static’ Characteristics That are 

Not Inputs to Emission Equations’’ and 

‘‘Unit/Process Operating Characteristics 

That are Not Inputs to Emission 

Equations’’ data categories. In this 

section, the EPA presents in Table 3 and 

Table 4 of this preamble the data 

elements that we are proposing to assign 

to those two data categories and the 

reasons for proposing to determine that 

each does or does not qualify as CBI 

under CAA section 114(c), or the reason 

that we are not making a CBI 

determination. 

The electronics manufacturing 

industry uses multiple long-lived 

fluorinated greenhouse gases 

(fluorinated GHGs), as well as nitrous 

oxide (N2O) during manufacturing of 

electronic devices, including, but not 

limited to, liquid crystal displays, 

microelectro-mechanical systems, 

photovoltaic cells, and semiconductors. 

Fluorinated GHGs are used mainly for 

plasma etching of silicon materials, 

cleaning deposition tool chambers, and 

wafer cleaning, but may be used in other 

types of electronics manufacturing 

processes. Besides dielectric film 

etching and chamber cleaning, much 

smaller quantities of fluorinated GHGs 

are used to etch polysilicon films and 

refractory metal films like tungsten. 

Additionally, some electronics 

manufacturing equipment may employ 

fluorinated GHG liquids as HTFs. 

Nitrous oxide may be the oxidizer of 

choice during deposition of silicon 

oxide films in manufacturing electronic 

devices. 

These electronic manufacturing steps 

are performed in carefully controlled 

process chambers containing the silicon 

wafers and the fluorinated GHGs or 

N2O. Producing a finished wafer with 

multiple electronic devices (e.g., 

computer chips) may require depositing 

and etching 50 or more individual 

layers of material. The conditions under 

which the individual steps are 

performed, the ability of a facility to 

produce certain electronic features, and 

the ability of a facility to produce a 

certain number of devices with a 

minimum number of defects at a certain 

cost per unit, among other variables, 

affect the overall efficiency of the 

manufacturing process, and thus 

contribute to the business’s profitability. 

These processes, therefore, are a factor 

in the competitive standing of a 

particular facility in this industry. 

The ‘‘Unit/Process ‘Static’ 

Characteristics That Are Not Inputs to 

Emission Equations’’ Data Category 

The EPA is proposing to assign 16 

subpart I data elements to the ‘‘Unit/ 

Process ‘Static’ Characteristics That are 

Not Inputs to Emission Equations’’ data 

category because they are basic 

characteristics of abatement devices and 

tools that do not vary with time or with 

the operations of the process (and are 

not inputs to emission equations). These 

16 data elements are shown in Table 3 

of this preamble along with their 

proposed confidentiality determination 

and the associated justification for the 

determination: 

TABLE 3—DATA ELEMENTS PROPOSED TO BE ASSIGNED TO THE ‘‘UNIT/PROCESS ‘STATIC’ CHARACTERISTICS THAT ARE

NOT INPUTS TO EMISSION EQUATIONS’’ DATA CATEGORY

Data element Proposed to be 

confidential? Justification 

1. For all fluorinated greenhouse gases (F–GHG) or 

N2O used at your facility for which you have not calculated emissions using Equations I–6 through I–10: 

Report a brief description of GHG use.

Yes ..................................... Subpart I lists five manufacturing processes in 40 CFR 

98.96(a) that are common to the electronics manufacturing industry. If a facility employs an uncommon 

process during manufacturing, then the reporting facility must instead report a description of the uncommon process (see 40 CFR 98.96(g)). As such, this 

data element may cover novel production methods 

that may have been developed by the reporting facility, generally at great expense and time investment. 

Facilities develop and use such methods because 

they improve manufacturing efficiencies, reduce manufacturing costs, or improve product performance, 

quality, or production rate, thereby conferring a competitive advantage. Should competitors gain knowledge of such an exclusive method, they could undercut the facility’s competitive advantage, by replicating 

it at less expense. Therefore, the EPA finds that releasing the report of a brief description of GHG use 

would likely result in substantial competitive harm. 


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TABLE 3—DATA ELEMENTS PROPOSED TO BE ASSIGNED TO THE ‘‘UNIT/PROCESS ‘STATIC’ CHARACTERISTICS THAT ARE

NOT INPUTS TO EMISSION EQUATIONS’’ DATA CATEGORY—Continued 

Data element Proposed to be 

confidential? Justification 

2. Identification of the quantifiable metric used in your 

facility-specific engineering model to apportion gas 

consumption (may not be reported in 2011, 2012, and 

2013).

No CBI determination proposed in this rulemaking.The EPA was petitioned to reconsider the method and 

data elements related to apportioning and, as an initial response to that petition, the EPA is not requiring 

the reporting of these recipe-specific data elements 

for the 2011, 2012, and 2013 reporting years. Under 

the methods in subpart I at this time, those data elements are not needed to comply with subpart I during 

those years. Given that the EPA is still considering 

longer-term responses to the petition, the EPA proposes to evaluate the confidentiality status of these 

data elements on a case-by-case basis, in accordance with existing CBI regulations in 40 CFR part 2, 

subpart B. 

3. Inventory of all abatement systems through which 

fluorinated GHGs or N2O flow at your facility.

Yes ..................................... The inventory of abatement systems at the facility may 

provide insight into the number of tools at the facility. 

Information on the type and number of tools at the 

facility coupled with production capacity could then 

enable competitors to reverse-engineer the facility’s 

approximate manufacturing cost using the competitor’s own tool operating costs. Disclosure of this type 

of cost information has the potential to undermine 

competition within the industry because it could allow 

competitors to ascertain the relative strength of their 

market position and to identify sources of competitive 

advantage (or disadvantage) in the industry. This 

could encourage weaker competitors to leave the industry prematurely or lead stronger competitors to 

adopt anticompetitive practices (such as predatory 

pricing) in an effort to force out weaker competitors. 

4. Description of all abatement systems through which 

fluorinated GHGs or N2O flow at your facility.

No ....................................... The description of abatement systems does not provide 

information about the specific processes being run at 

the facility; only provides information about the specific abatement system’s being employed at the facility. Further, it does not provide insight to competitors 

about the type and number of process tools used at 

the facility, and does not provide insight into the design or operation efficiencies of the plant, nor other 

information (e.g., market share, ability to increase 

production to meet new increases in demand, or 

price structures). 

5. Number of abatement devices of each manufacturer 

through which fluorinated GHGs or N2O flow at your 

facility.

Yes ..................................... The number of abatement systems at the facility may 

provide insight into the number of tools at the facility. 

Information on the type and number of tools at the 

facility coupled with production capacity could then 

enable competitors to reverse-engineer the facility’s 

approximate manufacturing cost using the competitor’s own tool operating costs. Disclosure of this type 

of cost information has the potential to undermine 

competition within the industry because it could allow 

competitors to ascertain the relative strength of their 

market position and to identify sources of competitive 

advantage (or disadvantage) in the industry. This 

could lead stronger competitors to adopt anticompetitive practices (such as predatory pricing) in an effort 

to force out weaker competitors or encourage weaker 

competitors to leave the industry prematurely. 

6. Model numbers of abatement devices through which 

fluorinated GHGs or N2O flow at your facility.

No ....................................... Information on what type of abatement system is being 

used at the facility, including model numbers of 

abatement devices, does not provide insight into the 

type of processes being run at the facility. Further, it 

does not provide insight to competitors about the 

type and number of process tools used at the facility. 

7. Destruction or removal efficiencies, if any, claimed by 

manufacturers of abatement devices through which 

fluorinated GHGs or N2O flow at your facility.

No ....................................... The destruction or removal efficiencies do not provide 

insight about the specific process being run at the facility; this information should be available publically 

via a manufacturer’s Web site/press materials. It 

should also be provided as part of the abatement 

system specifications. 


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Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 10441 

TABLE 3—DATA ELEMENTS PROPOSED TO BE ASSIGNED TO THE ‘‘UNIT/PROCESS ‘STATIC’ CHARACTERISTICS THAT ARE

NOT INPUTS TO EMISSION EQUATIONS’’ DATA CATEGORY—Continued 

Data element Proposed to be 

confidential? Justification 

8. Description of the tools associated with each abatement system.Yes ..................................... At a subpart I facility, disclosure of the type or description of manufacturing tools used for specific process 

steps would provide insight into how the reporting facility is configured and how it achieves its specific 

manufacturing performance. If information on a facility’s tool types and manufacturing steps is revealed, a 

competitor could use this information to replicate the 

facility’s manufacturing configuration, thereby undercutting the competitive advantage that the facility has 

built by achieving a higher level of manufacturing 

performance. 

9. Model numbers of the tools associated with each 

abatement system.

Yes ..................................... At a subpart I facility, disclosure of the model numbers 

of manufacturing tools used for specific process 

steps would provide insight into the type of tool used 

and how the reporting facility is configured and 

achieves its specific manufacturing performance. If 

information on a facility’s tool types and manufacturing steps is revealed, a competitor could use this 

information to replicate the facility’s manufacturing 

configuration, thereby undercutting the competitive 

advantage that the facility has built by achieving a 

higher level of manufacturing performance. 

10. The tool recipe(s),3 process sub-type, or type associated with each abatement system.Yes ..................................... At a subpart I facility, disclosure of the recipe(s), process sub-type, or type associated with each abatement system for specific process steps would provide 

insight into how the reporting facility is configured 

and achieves its specific manufacturing performance. 

If information on a facility’s tool types and manufacturing steps is revealed, a competitor could use this 

information to replicate the facility’s manufacturing 

configuration, thereby undercutting the competitive 

advantage that the facility has built by achieving a 

higher level of manufacturing performance. 

11. Certification that the abatement systems for which 

controlled emissions are being reported are specifically designed for fluorinated GHG and N2O abatement, including abatement system supplier documentation.

No ....................................... The abatement system certification does not provide 

any insight into the design or operation efficiencies of 

the plant or other information, that, if made publicly 

available, the release of which would be likely to result in substantial competitive harm. Moreover, certification statements will consist of only the language 

that the EPA publicly provides in the data reporting 

tool and will not include any facility- or process-specific information that could be considered exclusive. 

12. A description of the abatement system class for 

which you are reporting controlled emissions.

No ....................................... The abatement system class description does not provide any information about the specific processes 

being run at the facility; it relates to the use of the 

random sampling abatement system testing program 

(RSASTP) (40 CFR 98.94(f)(4)); where the facility 

elects to directly measure the destruction removal efficiency (DRE), this information ensures that they 

have followed the RSASTP. This description does 

not provide insight into the design or operation efficiencies of the plant, nor other information (e.g., market share, ability to increase production to meet new 

increases in demand, or price structures). 

13. The manufacturer of the abatement system in the 

class for which you are reporting controlled emissions.

No ....................................... The abatement system manufacturer does not provide 

any information about the specific processes being 

run at the facility; it relates to the use of the 

RSASTP; where the facility elects to directly measure 

the DRE, this information ensures that they have followed the RSASTP. This information does not provide insight into the design or operation efficiencies 

of the plant, nor other information (e.g., market 

share, ability to increase production to meet new increases in demand, or price structures). 


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10442 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 

3 ‘‘Recipe’’ is a term of art in electronics 

manufacturing and is defined in 40 CFR 98.98 as 

a ‘‘specific combination of gases, under specific 

conditions of reactor temperature, pressure, flow, 

radio frequency (RF) power and duration, used 

repeatedly to fabricate a specific feature on a 

specific film or substrate’’. 

TABLE 3—DATA ELEMENTS PROPOSED TO BE ASSIGNED TO THE ‘‘UNIT/PROCESS ‘STATIC’ CHARACTERISTICS THAT ARE

NOT INPUTS TO EMISSION EQUATIONS’’ DATA CATEGORY—Continued 

Data element Proposed to be 

confidential? Justification 

14. The model number of the abatement system in the 

class for which you are reporting controlled emissions.

No ....................................... The abatement system model number and class do not 

provide any information about the specific processes 

being run at the facility; they relate to the use of the 

RSASTP; where the facility elects to directly measure 

the DRE, this information ensures that they have followed the RSASTP. This information does not provide insight to competitors about the type and number of process tools used at the facility. 

15. For each fluorinated HTF used, whether the emission estimate includes emissions from all applications 

or from only the applications specified in the definition 

of fluorinated HTFs in 40 CFR 98.98.

No ....................................... This information does not contain any process specific 

information; it is related to a flexibility provision that 

the EPA finalized in a separate action. The release of 

this information does not provide insight into the design or operation efficiencies of the plant, nor other 

information (e.g., market share, ability to increase 

production to meet new increases in demand, or 

price structures). 

16. For reporting year 2012 only, the date on which you 

began monitoring emissions of fluorinated heat transfer fluids whose vapor pressure falls below 1 mm of 

Hg absolute at 25 degrees C.

No ....................................... This information does not provide details about the specific processes being run at the facility; it enables the 

EPA to ascertain the time-period for which fluorinated 

HTFs are being reported. The release of this information does not provide insight into the design or operation efficiencies of the plant, nor other information 

(e.g., market share, ability to increase production to 

meet new increases in demand, or price structures). 

The ‘‘Unit/Process Operating 

Characteristics That Are Not Inputs to 

Emission Equations’’ Data Category 

The EPA is proposing to assign 23 

subpart I data elements to the ‘‘Unit/ 

process Operating Characteristics That 

Are Not Inputs to Emission Equations’’ 

data category because they are 

characteristics of the abatement systems 

and other equipment, the facility 

conditions, and the products 

manufactured that vary over time with 

changes in operations and processes 

(and are not inputs to emission 

equations). Thirteen of these data 

elements are part of extension requests 

for the use of BAMM and generally 

relate to the reasons for a request and 

expected dates of compliance. Ten are 

part of the annual GHG report for 40 

CFR part 98, subpart I. These 23 data 

elements are shown in Table 4 of this 

preamble along with their proposed 

confidentiality determination and the 

associated justification for the 

determination: 

TABLE 4—DATA ELEMENTS PROPOSED TO BE ASSIGNED TO THE ‘‘UNIT/PROCESS OPERATING CHARACTERISTICS THAT

ARE NOT INPUTS TO EMISSION EQUATIONS’’ DATA CATEGORY

Data element Proposed to be 

confidential? Justification 

1. Annual manufacturing capacity of a facility as determined in Equation I–5.No ....................................... This information is already publicly available through 

the World Fab Forecast,4 a subscription-based report 

containing in-depth analysis down to the detail of 

each fab [or facility] in the electronics industry. The 

Forecast is published and updated quarterly by 

SEMI, the global industry association serving the 

manufacturing supply chains for the microelectronic, 

display and photovoltaic industries. The EPA reviewed the available capacity information and determined that, while those capacity data elements are 

generally publicly available, there may be facilities for 

which this data is not public. The EPA is proposing 

that the ‘‘annual manufacturing capacity of a facility 

as determined in Equation I–5’’ data element (item 1) 

not be treated as confidential, because it is already 

publicly available through the World Fab Forecast. 

The EPA seeks comment on this proposed determination. 


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TABLE 4—DATA ELEMENTS PROPOSED TO BE ASSIGNED TO THE ‘‘UNIT/PROCESS OPERATING CHARACTERISTICS THAT

ARE NOT INPUTS TO EMISSION EQUATIONS’’ DATA CATEGORY—Continued 

Data element Proposed to be 

confidential? Justification 

2. For facilities that manufacture semiconductors, the diameter of wafers manufactured at a facility.No ....................................... The diameter of wafers manufactured at a facility is already publicly available through the World Fab Forecast, a subscription-based report containing in-depth 

analysis down to the detail of each fab [or facility] in 

the semiconductor industry. The Forecast is published and updated quarterly by SEMI, the global industry association serving the manufacturing supply 

chains for the microelectronic, display and photovoltaic industries. 

3. Film or substrate that was etched/cleaned and the 

feature type that was etched.

No CBI determination proposed in this rulemaking.EPA was petitioned to reconsider the method and data 

elements related to the recipe-specific method and, 

as an initial response to that petition, the EPA is not 

requiring the reporting of these recipe-specific data 

elements for the 2011, 2012, and 2013 reporting 

years. Under the methods in subpart I at this time, 

those data elements are not needed to comply with 

subpart I during those years. Given that the EPA is 

still considering longer-term responses to the petition, 

the EPA proposes to evaluate the confidentiality status of these data elements on a case-by-case basis, 

in accordance with existing CBI regulations in 40 

CFR part 2, subpart B. 

4. Certification that the recipes included in a set of similar recipes are similar.No CBI determination proposed in this rulemaking.The EPA was petitioned to reconsider the method and 

data elements related to the recipe-specific method 

and, as an initial response to that petition, the EPA is 

not requiring the reporting of these recipe-specific 

data elements for the 2011, 2012, and 2013 reporting 

years. Under the methods in subpart I at this time, 

those data elements are not needed to comply with 

subpart I during those years. Given that the EPA is 

still considering longer-term responses to the petition, 

the EPA proposes to evaluate the confidentiality status of these certifications on a case-by-case basis, in 

accordance with existing CBI regulations in 40 CFR 

part 2, subpart B. 

5. When you use factors for fluorinated GHG process 

utilization and by-product formation rates other than 

the defaults provided in Tables I–3, I–4, I–5, I–6, and 

I–7 and/or N2O utilization factors other than the defaults provided in Table I–8, certification that the conditions under which the measurements were made for 

facility-specific N2O utilization factors are representative of your facility’s N2O emitting production processes.

No ....................................... These certification statements are general in nature, do 

not reveal other information (e.g., market share, ability to increase production to meet new increases in 

demand, price structures), and do not provide any insight into the design or operation efficiencies of the 

plant that would likely result in substantial competitive 

harm. Moreover, the EPA certification statements 

consist only of the language that the EPA publicly 

provides in the data reporting tool and do not include 

any facility- or process-specific information that could 

be considered exclusive. 

6. Destruction and removal efficiency measurement 

records for abatement system through which 

fluorinated GHGs or N2O flow at your facility over its 

in-use life.

No ....................................... These measurement records are limited to information 

about the performance of the abatement systems 

and do not include information about the operating 

conditions around the abatement system or the manufacturing tool to which it is attached. Destruction efficiency information would not likely cause substantial 

competitive harm if released, because it does not 

provide any insight into novel, exclusive production 

methods that may have been developed by the facility. 

7. Certification that the abatement system is installed, 

maintained, and operated according to manufacturer 

specifications.

No ....................................... These certification statements are general in nature, do 

not provide any insight into the design or operation 

efficiencies of the plant, and do not reveal other information (e.g., market share, ability to increase production to meet new increases in demand, price structures) that would likely result in substantial competitive harm. Moreover, the EPA certification statements 

consist only of the language that the EPA publicly 

provides in the data reporting tool and do not include 

any facility- or process-specific information that could 

be considered exclusive. 


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10444 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 

TABLE 4—DATA ELEMENTS PROPOSED TO BE ASSIGNED TO THE ‘‘UNIT/PROCESS OPERATING CHARACTERISTICS THAT

ARE NOT INPUTS TO EMISSION EQUATIONS’’ DATA CATEGORY—Continued 

Data element Proposed to be 

confidential? Justification 

8. The fluorinated GHG and N2O in the effluent stream 

to the abatement system in the class for which you 

are reporting controlled emissions.

No ....................................... This data element does not include information on the 

quantity of gas(es) produced or the manufacturing 

tool that produces the gas(es). The type of 

fluorinated gas in the effluent stream would not likely 

cause substantial competitive harm if released, because all facilities use the same types of process 

gases that are typically found in effluent streams. 

The type of gas does not provide any insight into the 

costs of producing semiconductors at the facility or 

any novel production methods that may have been 

developed by the facility to improve manufacturing efficiencies, reduce manufacturing costs, or improve 

product performance. 

9. The total number of abatement systems in that abatement system class for the reporting year.Yes ..................................... The EPA finds that information relating to the number 

of abatement systems at the facility may provide insight into the number of tools at the facility. Information on the type and number of tools at the facility 

coupled with production capacity could then enable 

competitors to reverse-engineer the facility’s approximate manufacturing cost using the competitor’s own 

tool operating costs. Disclosure of this type of cost 

information has the potential to undermine competition within the industry because it could allow competitors to ascertain the relative strength of their market position and to identify sources of competitive advantage (or disadvantage) among competitors. This 

could encourage weaker competitors to leave the industry prematurely or lead stronger competitors to 

adopt anticompetitive practices (such as predatory 

pricing) in an effort to force out weaker competitors. 

10. The total number of abatement systems for which 

destruction or removal efficiency was measured in that 

abatement system class for the reporting year.

Yes ..................................... This data element refers to the statistical sample size 

of abatement systems that the facility analyzed in 

order to determine with sufficient statistical confidence the efficiency of all like abatement systems in 

that class. Subpart I specifies that 20 percent of the 

total number of abatement systems must be analyzed every year. Therefore, a competitor could use 

statistical sample size data to determine the total 

number of abatement systems at the facility. Since 

the EPA proposes that the total number of abatement 

systems is CBI, as described above, the EPA finds 

that the statistical sample size of abatement systems 

would likely cause substantial competitive harm if revealed. 

11. Extension requests which request BAMM in 2011 for 

parameters other than recipe-specific utilization and 

by-product formation rates for the plasma etching 

process type: Reasons why the needed equipment 

could not be obtained, installed, or operated or why 

the needed measurement service could not be provided before July 1, 2011.

Yes ..................................... The EPA has reviewed all BAMM use extension requests and determined that this data element contains detailed operational information, which could 

provide insight into configuration efficiencies that the 

facility has developed, generally at great expense 

and time investment, to minimize manufacturing cost 

and to maximize the manufacturing rate. If a competitor could review such information on the facility’s 

configuration, the competitor would be able to adopt 

the facility’s efficiency practices with less development time or expense and would gain competitive 

advantage at the expense of the facility’s competitive 

advantage. 

12. Extension requests which request BAMM in 2011 for 

parameters other than recipe-specific utilization and 

by-product formation rates for the plasma etching 

process type: If the reason for the extension is that 

the equipment cannot be purchased, delivered, or installed before July 1, 2011, include supporting documentation (e.g., backorder notices or unexpected 

delays or descriptions of actions taken to expedite delivery or installation).

No ....................................... This data element does not contain process diagrams, 

operational information, or any other information that 

would give insight for competitors to gain an advantage over the reporter. Rather, it provides information 

on administrative activities and regulatory requirements to which the facility is subject that are not protected as proprietary or exclusive by the reporting facilities. 


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Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Proposed Rules 10445 

TABLE 4—DATA ELEMENTS PROPOSED TO BE ASSIGNED TO THE ‘‘UNIT/PROCESS OPERATING CHARACTERISTICS THAT

ARE NOT INPUTS TO EMISSION EQUATIONS’’ DATA CATEGORY—Continued 

Data element Proposed to be 

confidential? Justification 

13. Extension requests which request BAMM in 2011 for 

parameters other than recipe-specific utilization and 

by-product formation rates for the plasma etching 

process type: If the reason for the extension is that 

service providers were unable to provide necessary 

measurement services, include supporting documentation demonstrating that these services could not be 

acquired before July 1, 2011. This documentation 

must include written correspondence to and from at 

least three service providers stating that they will not 

be available to provide the necessary services before 

July 1, 2011.

No ....................................... This data element does not contain detailed information 

that would give insight for competitors to gain an advantage over the reporter. Rather, it provides information on regulatory requirements and administrative 

activities to which the facility is subject that are not 

protected as proprietary or exclusive by the reporting 

facilities. 

14. Extension requests which request BAMM in 2011 for 

parameters other than recipe-specific utilization and 

by-product formation rates for the plasma etching 

process type: Specific actions the owner or operator 

will take to comply with monitoring requirements by 

January 1, 2012.

No ....................................... This data element does not contain detailed information, such as process diagrams and operational information or any other information that would give insight for competitors to gain an advantage over the 

reporter. Rather, it provides information on administrative activities and regulatory requirements to which 

the facility is subject that are not protected as proprietary or exclusive by the reporting facilities. 

15. Extension requests which request BAMM in 2011 for 

recipe-specific utilization and by-product formation 

rates for plasma etching process type: Reasons why 

the needed equipment could not be obtained, installed, or operated or why the needed measurement 

service could not be provided before December 31, 

2011.

Yes ..................................... The EPA has reviewed all BAMM use extension requests and determined that this data element contains detailed information, such as operational information, which could provide insight into configuration 

efficiencies that the facility has developed, generally 

at great expense and time investment, to minimize 

manufacturing cost and to maximize the manufacturing rate. If a competitor could review such information on the facility’s configuration, the competitor 

would be able to adopt the facility’s efficiency practices with less development time or expense and 

would gain competitive advantage at the expense of 

the facility’s competitive advantage. 

16. Extension requests which request BAMM in 2011 for 

recipe-specific utilization and by-product formation 

rates for plasma etching process type: If the reason 

for the extension is that the equipment cannot be purchased, delivered, or installed before December 31, 

2011, include supporting documentation (e.g., 

backorder notices or unexpected delays or descriptions of actions taken to expedite delivery or installation).

No ....................................... This data element does not contain detailed information, such as process diagrams and operational information or any other information that would give insight for competitors to gain an advantage over the 

reporter. Rather, it provides information on administrative activities and regulatory requirements to which 

the facility is subject that are not protected as proprietary or exclusive by the reporting facilities. 

17. Extension requests which request BAMM in 2011 for 

recipe-specific utilization and by-product formation 

rates for plasma etching process type: If the reason 

for the extension is that service providers were unable 

to provide necessary measurement services, include 

supporting documentation demonstrating that these 

services could not be acquired before December 31, 

2011. This documentation must include written correspondence to and from at least three service providers stating that they will not be available to provide 

the necessary services before December 31, 2011.

No ....................................... This data element does not contain detailed information, such as process diagrams and operational information or any other information that would give insight for competitors to gain an advantage over the 

reporter. Rather, it provides information on administrative activities and regulatory requirements to which 

the facility is subject that are not protected as proprietary or exclusive by the reporting facilities. 

18. Extension requests which request BAMM in 2011 for 

recipe-specific utilization and by-product formation 

rates for plasma etching process type: Specific actions 

the owner or operator will take to comply with monitoring requirements by January 1, 2012.

No ....................................... This data element does not contain detailed information, such as process diagrams and operational information or any other information that would give insight for competitors to gain an advantage over the 

reporter. Rather, it provides information on administrative activities and regulatory requirements to which 

the facility is subject that are not protected as proprietary or exclusive by the reporting facilities. 


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4http://www.semi.org/en/Store/ 

MarketInformation/fabdatabase/ctr_027238. 

TABLE 4—DATA ELEMENTS PROPOSED TO BE ASSIGNED TO THE ‘‘UNIT/PROCESS OPERATING CHARACTERISTICS THAT

ARE NOT INPUTS TO EMISSION EQUATIONS’’ DATA CATEGORY—Continued 

Data element Proposed to be 

confidential? Justification 

19. Extension requests which request BAMM beyond 

2011: Explanation as to why the requirements cannot 

be met.

Yes ..................................... The EPA has reviewed all of BAMM use extension requests and determined that this data element may 

contain operational information, which could provide 

insight into configuration efficiencies that the facility 

has developed, generally at great expense and time 

investment, to minimize manufacturing cost and to 

maximize the manufacturing rate. If a competitor 

could review such information on the facility’s configuration, the competitor would be able to adopt the 

facility’s efficiency practices with less development 

time or expense and would gain competitive advantage at the expense of the facility’s competitive advantage. 

20. Extension requests which request BAMM beyond 

2011: Description of the unique circumstances necessitating an extension, including specific technical 

infeasibilities that conflict with data collection.

No ....................................... This data element does not contain detailed operational 

information or any other information that would give 

insight for competitors to gain an advantage over the 

reporter. Rather, it provides information on administrative activities and regulatory requirements to which 

the facility is subject that are not protected as proprietary or exclusive by the reporting facilities. 

21. Extension requests which request BAMM beyond 

2011: Description of the unique circumstances necessitating an extension, including specific data collection 

issues that do not meet safety regulations or specific 

laws or regulations that conflict with data collection.

No ....................................... This data element does not contain detailed information 

that would give insight for competitors to gain an advantage over the reporter. Rather, it provides information on administrative activities and regulatory requirements to which the facility is subject that are not 

protected as proprietary or exclusive by the reporting 

facilities. 

22. Extension requests which request BAMM beyond 

2011: Explanation and supporting documentation of 

how the owner or operator will receive the required 

data and/or services to comply with the reporting requirements.

No ....................................... This data element does not contain process diagrams 

or operational information that would give insight for 

competitors to gain an advantage over the reporter. 

Rather, it provides information on administrative activities and regulatory requirements to which the facility is subject that are not protected as proprietary or 

exclusive by the reporting facilities. 

23. Extension requests which request BAMM beyond 

2011: Explanation and supporting documentation of 

when the owner or operator will receive the required 

data and/or services to comply with the reporting requirements.

Yes ..................................... This data element could reveal information about the 

installation date of equipment and the date of anticipated startup. This could provide sensitive information regarding future process shutdowns or capacity 

increases, and likely would cause substantial competitive harm if disclosed, because competitors could 

use this information to anticipate and potentially benefit from future increases or decreases in product 

supply. For example, a competitor able to anticipate 

the shutdown or the increase in capacity of a reporter’s facility and resulting decrease or increase in 

product supply could use this information to attract 

customers from a facility by increasing its own production or by adjusting the price of its own products. 

E. Commenting on the Proposed 

Confidentiality Determinations in Two 

Direct Emitter Categories 

We seek comment on the proposed 

confidentiality status of data elements 

in two direct emitter data categories 

(‘‘Unit/Process ‘Static’ Characteristics 

That are Not Inputs to Emission 

Equations’’ and ‘‘Unit/Process Operating 

Characteristics That are Not Inputs to 

Emission Equations’’). By proposing 

confidentiality determinations prior to 

data reporting through this proposal and 

rulemaking process, we provide 

potential reporters an opportunity to 

submit comments identifying data they 

consider sensitive and the rationales 

and supporting documentation, same as 

those they would otherwise submit for 

case-by-case confidentiality 

determinations. We will evaluate claims 

of confidentiality before finalizing the 

confidentiality determinations. Please 

note that this will be reporters’ only 

opportunity to substantiate your 

confidentiality claim. Upon finalization 

of this rule, the EPA will release or 

withhold subpart I data in accordance 

with 40 CFR 2.301, which contains 

special provisions governing the 

treatment of 40 CFR part 98 data for 

which confidentiality determinations 

have been made through rulemaking. 

Please consider the following 

instructions in submitting comments on 

the data elements in subpart I. 

Please identify each individual data 

element you do or do not consider to be 

CBI or emission data in your comments. 

Please explain specifically how the 

public release of that particular data 

element would or would not cause a 

competitive disadvantage to a facility. 

Discuss how this data element may be 

different from or similar to data that are 

already publicly available. Please 

submit information identifying any 

publicly available sources of 


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information containing the specific data 

elements in question, since data that are 

already available through other sources 

would not be CBI. In your comments, 

please identify the manner and location 

in which each specific data element you 

identify is available, including a 

citation. If the data are physically 

published, such as in a book, industry 

trade publication, or federal agency 

publication, provide the title, volume 

number (if applicable), author(s), 

publisher, publication date, and ISBN or 

other identifier. For data published on 

a Web site, provide the address of the 

Web site and the date you last visited 

the Web site and identify the Web site 

publisher and content author. 

If your concern is that competitors 

could use a particular input to discern 

sensitive information, specifically 

describe the pathway by which this 

could occur and explain how the 

discerned information would negatively 

affect your competitive position. 

Describe any unique process or aspect of 

your facility that would be revealed if 

the particular data element you consider 

sensitive were made publicly available. 

If the data element you identify would 

cause harm only when used in 

combination with other publicly 

available data, then describe the other 

data, identify the public source(s) of 

these data, and explain how the 

combination of data could be used to 

cause competitive harm. Describe the 

measures currently taken to keep the 

data confidential. Avoid conclusory and 

unsubstantiated statements, or general 

assertions regarding potential harm. 

Please be as specific as possible in your 

comments and include all information 

necessary for the EPA to evaluate your 

comments. 

IV. Background and Rationale for the 

Proposed Amendments to the Best 

Available Monitoring Method 

Provisions 

Following the publication of the final 

subpart I rule in the Federal Register, an 

industry association requested 

reconsideration of numerous provisions 

in the final rule. The proposed 

amendments in this action are in 

response to the request for 

reconsideration of the specific provision 

that requires facilities that have been 

granted extensions to use best available 

monitoring methods (BAMM) to 

recalculate their emissions for the time 

period for which BAMM was used at a 

later date using methods that are fully 

compliant with subpart I. The other 

amendments that have been made to 

date are also related to the 

reconsideration petition. 

As mentioned above in Section II.C of 

this preamble, the EPA is finalizing 

technical corrections and revisions 

regarding the definition of fluorinated 

HTFs and the provisions to estimate and 

report emissions of fluorinated HTFs in 

a separate action. 

As finalized in December 2010, 

subpart I allowed facilities to use 

BAMM without going through an 

application process until July 1, 2011. In 

2011, the EPA published other 

amendments to subpart I, including 

several related to the BAMM provisions. 

On June 22, 2011, the EPA extended the 

period in subpart I for using the BAMM 

provisions without going through an 

application process to September 30, 

2011 (76 FR 36339). Under the 

September 27, 2011 amendments to 

subpart I, this initial BAMM period was 

extended through December 31, 2011. 

Facilities were given until October 17, 

2011 to apply for an extension beyond 

this initial period. Under subpart I, 

facilities could apply to use BAMM after 

December 31, 2011 for any parameter for 

which it is not reasonably feasible to 

acquire, install, or operate a required 

piece of monitoring equipment in a 

facility, or to procure necessary 

measurement services (40 CFR 94(a)(1)). 

Also on September 27, 2011, the EPA 

amended the calculation and 

monitoring provisions for large 

semiconductor manufacturing facilities 

that fabricate devices on wafers 

measuring 300 millimeters or less in 

diameter (76 FR 59542). The large 

semiconductor manufacturing facilities 

are those that have an annual 

manufacturing capacity of greater than 

10,500 square meters of substrate. For 

reporting years 2011, 2012, and 2013, 

these amendments allow the large 

semiconductor facilities the option to 

calculate emissions using default 

emission factors already contained in 

subpart I, instead of using recipespecific utilization and by-product 

formation rates for the plasma etching 

process type. 

The EPA is proposing to amend 

subpart I to remove the requirement that 

facilities that are granted an extension to 

use BAMM must recalculate and 

resubmit the emissions estimate for the 

BAMM extension period. Currently, 

subpart I requires facilities, after the end 

of the period for which they have been 

granted a BAMM extension, to 

recalculate and resubmit all emissions 

after they have begun following all 

applicable monitoring methods of 

subpart I. The September 27, 2011 

amendments did not alter the BAMM 

recalculation provisions in subpart I. 

Under 40 CFR 98.94(a)(2) and (3), a 

facility granted an extension ‘‘through 

December 31, 2011’’, per the original 

schedule in the rule, must include 

recalculated 2011 emissions in its 2012 

emission report due in 2013, unless it 

receives an additional extension. Under 

40 CFR 98.94(a)(4), a facility granted an 

extension beyond December 31, 2011, 

must include recalculated 2012 

emissions in its 2013 emission report 

due in March 2014. Under 40 CFR 

98.94(a)(2) and (a)(4), facilities are not 

required to verify their 2011 and 2012 

BAMM engineering model for 

apportioning gas consumption in their 

recalculated report. 

The petitioners have noted that in the 

case of subpart I, the requirement for 

facilities to recalculate emissions in full 

compliance with subpart I would 

require them to implement data 

collection at a level of detail that is not 

currently feasible for all facilities using 

the BAMM provisions. 

Industry members that are applying 

for BAMM extensions have noted that, 

although they have systems to track data 

that are pertinent to processing of 

wafers and determining tool capacities 

and manufacturing efficiency, those 

systems are not currently designed to 

apportion gas usage to any particular 

recipe or tool, or to produce the 

apportioning factors required by the 

rule. They have also noted that they will 

not have the systems in place (including 

hardware and software upgrades) to 

collect the data needed to develop heel 

factors, and to track abatement system 

up-time according to subpart I. 

The petitioners also noted that the 

compliance schedule for subpart I does 

not provide adequate time for facilities 

using BAMM to implement the data 

collection needed to recalculate 

emissions at a later date. The final 

subpart I was published on December 1, 

2010, and became effective on January 

1, 2011. On January 1, 2011, a facility 

would have needed some method in 

place to track the chemicals, the flow 

stabilization times, reactor pressure, 

individual gas flow rates, and applied 

radio frequency power. 

After considering these requests, the 

EPA is proposing to remove the 

requirements to recalculate and 

resubmit all emission estimates for 

subpart I. The EPA has determined that 

there may be significant burden 

imposed by a broad recalculation 

requirement for subpart I. In addition, 

the EPA’s ongoing consideration of 

potential further revisions to the 

calculation and monitoring 

requirements complicates the 

recalculation requirement. For example, 

while the agency may want to evaluate 

the feasibility of a recalculation 

requirement for any new methodologies, 


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we do not believe the automatic 

imposition of a recalculation 

requirement is appropriate at this time. 

Finally, it is important to note, the 

majority of the other subparts of Part 98 

with specific BAMM provisions do not 

require facilities to recalculate or 

resubmit emission estimates after the 

BAMM period has been completed. We 

have, therefore, concluded that it is not 

necessary to require facilities that have 

been granted extensions to use best 

available monitoring methods to 

recalculate their emissions for the time 

period for which BAMM was used at a 

later date using calculation methods in 

subpart I. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action, 

which is proposing to (1) assign subpart 

I data reporting elements into data 

categories; (2) determine CBI status for 

the remaining data elements for which 

determinations have not yet been made; 

and (3) amend reporting methodologies 

in subpart I that would reduce the data 

collection and submittal burden for 

certain facilities, is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

As previously mentioned, this action 

proposes confidentiality determinations 

and proposes amended reporting 

methodologies in subpart I that would 

reduce the data collection burden for 

certain facilities. This action does not 

increase the reporting burden. The 

Office of Management and Budget 

(OMB) has previously approved the 

information collection requirements 

contained in subpart I, under 40 CFR 

part 98, under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The Information Collection 

Request (ICR) documents prepared by 

the EPA have been assigned OMB 

control number 2060–0650 for subpart I. 

The OMB control numbers for the EPA’s 

regulations in 40 CFR are listed at 40 

CFR part 9. 

C. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this re-proposal 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; or (3) a 

small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

This action proposes confidentiality 

determinations and proposes amended 

reporting methodologies in subpart I 

that would reduce the data collection 

burden for certain facilities. After 

considering the economic impacts of 

today’s proposed rule on small entities, 

I certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

The small entities directly regulated by 

this proposed rule are facilities included 

in NAICS codes for Semiconductor and 

Related Device Manufacturing (334413) 

and Other Computer Peripheral 

Equipment Manufacturing (334119). As 

shown in Tables 5–13 and 5–14 of the 

Economic Impact Analysis for the 

Mandatory Reporting of Greenhouse Gas 

Emissions Final Rule (74 FR 56260, 

October 30, 2009) available in docket 

number EPA–HQ–OAR–2008–0508, the 

average ratio of annualized reporting 

program costs to receipts of 

establishments owned by model small 

enterprises was less than 1% for 

industries presumed likely to have 

small businesses covered by the 

reporting program. 

The EPA took several steps to reduce 

the impact of Part 98 on small entities. 

For example, the EPA determined 

appropriate thresholds that reduced the 

number of small businesses reporting. 

For some source categories, the EPA 

developed tiered methods that are 

simpler and less burdensome. In 

addition, the EPA conducted several 

meetings with industry associations to 

discuss regulatory options and the 

corresponding burden on industry, such 

as recordkeeping and reporting. Finally, 

the EPA continues to conduct 

significant outreach on the mandatory 

GHG reporting rule and maintains an 

‘‘open door’’ policy for stakeholders to 

help inform the EPA’s understanding of 

key issues for the industries. 

We continue to be interested in the 

potential impacts of this action on small 

entities and welcome comments on 

issues related to such effects. 

D. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on state, local, and tribal 

governments and the private sector. 

Federal agencies must also develop a 

plan to provide notice to small 

governments that might be significantly 

or uniquely affected by any regulatory 

requirements. The plan must enable 

officials of affected small governments 

to have meaningful and timely input in 

the development of the EPA regulatory 

proposals with significant federal 

intergovernmental mandates and must 

inform, educate, and advise small 

governments on compliance with the 

regulatory requirements. 

This action, which is proposing 

confidentiality determinations and 

amended reporting methodologies in 

subpart I that would reduce the data 

collection burden for certain facilities, 

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. This 

action does not increase the reporting 

burden. Thus, this action is not subject 

to the requirements of sections 202 or 

205 of the UMRA. 

In developing Part 98, the EPA 

consulted with small governments 

pursuant to a plan established under 

section 203 of the UMRA to address 

impacts of regulatory requirements in 

the rule that might significantly or 

uniquely affect small governments. For 

a summary of the EPA’s consultations 

with state and/or local officials or other 

representatives of state and/or local 

governments in developing Part 98, see 

Section VIII.D of the preamble to the 

final rule (74 FR 56370, October 30, 

2009). 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. However, for a 


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more detailed discussion about how 

Part 98 relates to existing state 

programs, please see Section II of the 

preamble to the final rule (74 FR 56266, 

October 30, 2009). 

This action, which is proposing 

confidentiality determinations and 

amended reporting methodologies in 

subpart I that would reduce the data 

collection burden, would only apply to 

certain electronics manufacturers. No 

state or local government facilities are 

known to be engaged in the activities 

that would be affected by the provisions 

in this proposed rule. This action also 

does not limit the power of states or 

localities to collect GHG data and/or 

regulate GHG emissions. Thus, 

Executive Order 13132 does not apply 

to this action. 

In the spirit of Executive Order 13132, 

and consistent with the EPA policy to 

promote communications between the 

EPA and state and local governments, 

the EPA specifically solicits comment 

on this proposed action from state and 

local officials. For a summary of the 

EPA’s consultation with state and local 

organizations and representatives in 

developing Part 98, see Section VIII.E of 

the preamble to the final rule (74 FR 

56371, October 30, 2009). 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This action, which proposes 

confidentiality determinations and 

proposes amended reporting 

methodologies in subpart I that would 

reduce the data collection burden for 

certain facilities, does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). No tribal facilities are known to 

be engaged in the activities affected by 

this action. Thus, Executive Order 

13175 does not apply to this action. For 

a summary of the EPA’s consultations 

with tribal governments and 

representatives, see Section VIII.F of the 

preamble to the final rule (74 FR 56371, 

October 30, 2009). The EPA specifically 

solicits additional comment on this 

proposed action from tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action, which is 

proposing to (1) assign subpart I data 

reporting elements into data categories; 

(2) determine CBI status for the 

remaining data elements for which 

determinations have not yet been made; 

and (3) amend reporting methodologies 

in subpart I that would reduce the data 

collection and submittal burden for 

certain facilities, is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action, which is proposing to (1) 

assign subpart I data reporting elements 

into data categories; (2) determine CBI 

status for the remaining data elements 

for which determinations have not yet 

been made; and (3) amend reporting 

methodologies in subpart I that would 

reduce the data collection and submittal 

burden for certain facilities, is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211 (66 FR 28355 

(May 22, 2001)). It is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This action does not increase the 

reporting burden. The proposed rule 

amendments in this action do not 

impose any significant changes to the 

current reporting requirements 

contained in 40 CFR part 98, subpart I; 

rather, the proposed amendments to the 

reporting requirements would only 

affect certain electronics manufacturers. 

Therefore, this action is not subject to 

Executive Order 13211. 

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 the EPA 

to use voluntary consensus standards in 

its regulatory activities unless to do so 

would be inconsistent with applicable 

law or otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

the EPA to provide Congress, through 

OMB, explanations when the agency 

decides not to use available and 

applicable voluntary consensus 

standards. 

This action, which is proposing to (1) 

assign subpart I data reporting elements 

into data categories; (2) determine CBI 

status for the remaining data elements 

for which determinations have not yet 

been made; and (3) amend reporting 

methodologies in subpart I that would 

reduce the data collection and submittal 

burden for certain facilities, does not 

involve technical standards. Therefore, 

the 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. 

The EPA has determined that this 

action, which is proposing to (1) assign 

subpart I data reporting elements into 

data categories; (2) determine CBI status 

for the remaining data elements for 

which determinations have not yet been 

made; and (3) amend reporting 

methodologies in subpart I that would 

reduce the data collection and submittal 

burden for certain facilities, 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. This 

action addresses only reporting and 

recordkeeping procedures. 

List of Subjects 40 CFR Part 98 

Environmental protection, 

Administrative practice and procedure, 

Greenhouse gases, Reporting and 

recordkeeping requirements. 

Dated: February 10, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 98—[AMENDED] 

1. The authority citation for part 98 

continues to read as follows: 

Authority: 42 U.S.C. 7401–7671q. 


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Subpart I—[Amended] 

2. Section 98.94 is amended by 

revising paragraphs (a)(2)(iii), (a)(3)(iii), 

and (a)(4)(iii) to read as follows: 

§ 98.94 Monitoring and QA/QC 

requirements. 

(a) * * * 

(2) * * * 

(iii) Approval criteria. To obtain 

approval, the owner or operator must 

demonstrate to the Administrator’s 

satisfaction that by July 1, 2011, it is not 

reasonably feasible to acquire, install, or 

operate the required piece of monitoring 

equipment, or procure necessary 

measurement services to comply with 

the requirements of this subpart. 

(3) * * * 

(iii) Approval criteria. To obtain 

approval, the owner or operator must 

demonstrate to the Administrator’s 

satisfaction that by December 31, 2011 

it is not reasonably feasible to acquire, 

install, or operate the required piece of 

monitoring equipment or procure 

necessary measurement services to 

comply with the requirements of this 

subpart. 

(4) * * * 

(iii) Approval criteria. To obtain 

approval, the owner or operator must 

demonstrate to the Administrator’s 

satisfaction that by December 31, 2011 

(or in the case of facilities that are 

required to calculate and report 

emissions in accordance with 

§ 98.93(a)(2)(ii)(A), December 31, 2012), 

it is not reasonably feasible to acquire, 

install, or operate the required piece of 

monitoring equipment according to the 

requirements of this subpart. 

* * * * * 

[FR Doc. 2012–3778 Filed 2–21–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 302 

[EPA–HQ–SFUND–2011–0965; FRL–9636–1] 

Designation of Hazardous Substances; 

Designation, Reportable Quantities, 

and Notification 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to reinstate 

the maximum observed constituent 

concentrations for several listed 

hazardous wastes that were 

inadvertently removed from the 

regulations by a November 8, 2000 final 

rule. Also, in the ‘‘Rules and 

Regulations’’ section of this Federal 

Register, EPA is reinstating the same 

maximum observed constituent 

concentrations via a direct final rule 

without a prior proposed rule. If we 

receive no adverse comment, the direct 

final rule will become effective, and we 

will not take further action on this 

proposed rule. 

DATES: Written comments must be 

received by March 23, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

SFUND–2011–0965, by mail to the 

Environmental Protection Agency, EPA 

Docket Center (EPA/DC), Superfund 

Docket Mailcode: 28221T, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460. Comments may also be 

submitted electronically or through 

hand delivery/courier by following the 

detailed instructions in the ADDRESSES

section of the direct final rule located in 

the ‘‘Rules and Regulations’’ section of 

this Federal Register. 

FOR FURTHER INFORMATION CONTACT: For 

general information, contact the 

Superfund, TRI, EPCRA, RMP and Oil 

Information Center at (800) 424–9346 or 

TDD (800) 553–7672 (hearing impaired). 

In the Washington, DC metropolitan 

area, call (703) 412–9810 or TDD (703) 

412–3323. For more detailed 

information on specific aspects of this 

proposed rule, contact Lynn Beasley at 

(202) 564–1965 (beasley.lynn@epa.gov), 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW., Washington, 

DC 20460–0002, Mail Code 5104A. 

SUPPLEMENTARY INFORMATION: 

I. Why is EPA issuing this proposed 

rule? 

This document proposes to reinstate 

the maximum observed constituent 

concentrations for several listed 

hazardous wastes that were 

inadvertently removed from the 

regulations by a November 8, 2000 final 

rule. The listed hazardous wastes and 

the respective reportable quantities are 

included in the regulations for 

Hazardous Substances and Reportable 

Quantities. We have published a direct 

final rule to reinstate the maximum 

observed constituent concentrations in 

the ‘‘Rules and Regulations’’ section of 

this Federal Register because we view 

this as a noncontroversial action and 

anticipate no adverse comment. We 

have explained our reasons for this 

action in the preamble to the direct final 

rule. 

If we receive no adverse comment, we 

will not take further action on this 

proposed rule. If we receive adverse 

comment, however, we will withdraw 

the direct final rule and it will not take 

effect. We would address all public 

comments in any subsequent final rule 

based on this proposed rule. We do not 

intend to institute a second comment 

period on this action. Any parties 

interested in commenting must do so at 

this time. For further information, 

please see the information provided in 

the ADDRESSES section of this document. 

II. Does this action apply to me? 

Type of entity Examples of affected entities 

Federal Agencies ............................ National Response Center and any Federal agency that may release or respond to releases of hazardous 

substances. 

State and Local Governments ........ State Emergency Response Commissions, and Local Emergency Planning Committees. 

Responsible Parties ........................ Those entities responsible for the release of a hazardous substance from a vessel or facility. Those entities with an interest in the substances that were inadvertently removed from the table of maximum observed constituent concentrations for listed hazardous wastes K169, K170, K171, and K172 in 40 CFR 

302.6(b)(1)(iii). 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could potentially be regulated by 

this action. Other types of entities not 

listed in the table could also be 

regulated. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

III. What does this amendment do? 

This proposed rule would reinstate 

the maximum observed constituent 

concentrations for listed hazardous 

wastes K169, K170, K171, and K172 to 

the table found in 40 CFR 


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