[Federal Register Volume 77, Number 35 (Wednesday, February 22, 2012)]
[Proposed Rules]
[Pages 10434-10450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3778]


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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.

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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 re-proposal 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: [email protected].
     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,

[[Page 10435]]

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: 
[email protected]. 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: 
[email protected].
    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

[[Page 10436]]

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
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                                                   Examples of affected
            Category                  NAICS             facilities
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Electronics Manufacturing......          334111  Microcomputers
                                                  manufacturing
                                                  facilities.
                                         334413  Semiconductor,
                                                  photovoltaic (solid-
                                                  state) device
                                                  manufacturing
                                                  facilities.
                                         334419  Liquid crystal display
                                                  unit screens
                                                  manufacturing
                                                  facilities.
                                         334419  Micro-electro-
                                                  mechanical systems
                                                  manufacturing
                                                  facilities.
------------------------------------------------------------------------

    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 
[email protected]. You are also encouraged to send a separate 
copy of your CBI information to Carole Cook

[[Page 10437]]

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\
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    \1\ Please 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.
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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.

[[Page 10438]]

    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
----------------------------------------------------------------------------------------------------------------
                                                         Confidentiality determination for data elements in each
                                                                                 category
                                                        --------------------------------------------------------
                     Data category                                          Data that are not  Data that are not
                                                         Emission data \a\  emission data and  emission data but
                                                                                 not CBI          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                 X   .................  .................
 are Not Inputs to Emission Equations..................
Unit/Process ``Static'' Characteristics that are Not     .................             X \c\              X \c\
 Inputs to Emission Equations..........................
Unit/Process Operating Characteristics that are Not      .................             X \c\              X \c\
 Inputs to Emission Equations..........................
Test and Calibration Methods...........................  .................                 X   .................
Production/Throughput Data that are Not Inputs to        .................  .................                 X
 Emission Equations....................................
Raw Materials Consumed that are Not Inputs to Emission   .................  .................                 X
 Equations.............................................
Process-Specific and Vendor Data Submitted in BAMM       .................  .................                 X
 Extension Requests....................................
----------------------------------------------------------------------------------------------------------------
\a\ Under CAA section 114(c), ``emission data'' are not entitled to confidential treatment. The term ``emission
  data'' is defined at 40 CFR 2.301(a)(2)(i).
\b\ Section 114(c) of the CAA affords confidential treatment to data (except emission data) that are considered
  CBI.
\c\ In the 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\
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    \2\ As 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.
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    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

[[Page 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
------------------------------------------------------------------------
                                  Proposed to be
         Data element             confidential?        Justification
------------------------------------------------------------------------
1. For all fluorinated          Yes..............  Subpart I lists five
 greenhouse gases (F-GHG) or                        manufacturing
 N2O used at your facility for                      processes in 40 CFR
 which you have not calculated                      98.96(a) that are
 emissions using Equations I-6                      common to the
 through I-10: Report a brief                       electronics
 description of GHG use.                            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.

[[Page 10440]]

 
2. Identification of the        No CBI             The EPA was
 quantifiable metric used in     determination      petitioned to
 your facility-specific          proposed in this   reconsider the
 engineering model to            rulemaking.        method and data
 apportion gas consumption                          elements related to
 (may not be reported in 2011,                      apportioning and, as
 2012, and 2013).                                   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   Yes..............  The inventory of
 systems through which                              abatement systems at
 fluorinated GHGs or N2O flow                       the facility may
 at your facility.                                  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           No...............  The description of
 abatement systems through                          abatement systems
 which fluorinated GHGs or N2O                      does not provide
 flow at your facility.                             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  Yes..............  The number of
 of each manufacturer through                       abatement systems at
 which fluorinated GHGs or N2O                      the facility may
 flow at your facility.                             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   No...............  Information on what
 devices through which                              type of abatement
 fluorinated GHGs or N2O flow                       system is being used
 at your facility.                                  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       No...............  The destruction or
 efficiencies, if any, claimed                      removal efficiencies
 by manufacturers of abatement                      do not provide
 devices through which                              insight about the
 fluorinated GHGs or N2O flow                       specific process
 at your facility.                                  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.

[[Page 10441]]

 
8. Description of the tools     Yes..............  At a subpart I
 associated with each                               facility, disclosure
 abatement system.                                  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   Yes..............  At a subpart I
 associated with each                               facility, disclosure
 abatement system.                                  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\      Yes..............  At a subpart I
 process sub-type, or type                          facility, disclosure
 associated with each                               of the recipe(s),
 abatement system.                                  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      No...............  The abatement system
 abatement systems for which                        certification does
 controlled emissions are                           not provide any
 being reported are                                 insight into the
 specifically designed for                          design or operation
 fluorinated GHG and N2O                            efficiencies of the
 abatement, including                               plant or other
 abatement system supplier                          information, that,
 documentation.                                     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        No...............  The abatement system
 abatement system class for                         class description
 which you are reporting                            does not provide any
 controlled emissions.                              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     No...............  The abatement system
 abatement system in the class                      manufacturer does
 for which you are reporting                        not provide any
 controlled emissions.                              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).

[[Page 10442]]

 
14. The model number of the     No...............  The abatement system
 abatement system in the class                      model number and
 for which you are reporting                        class do not provide
 controlled emissions.                              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    No...............  This information does
 used, whether the emission                         not contain any
 estimate includes emissions                        process specific
 from all applications or from                      information; it is
 only the applications                              related to a
 specified in the definition                        flexibility
 of fluorinated HTFs in 40 CFR                      provision that the
 98.98.                                             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     No...............  This information does
 only, the date on which you                        not provide details
 began monitoring emissions of                      about the specific
 fluorinated heat transfer                          processes being run
 fluids whose vapor pressure                        at the facility; it
 falls below 1 mm of Hg                             enables the EPA to
 absolute at 25 degrees C.                          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).
------------------------------------------------------------------------

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

    \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''.
---------------------------------------------------------------------------

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
------------------------------------------------------------------------
                                  Proposed to be
         Data element             confidential?        Justification
------------------------------------------------------------------------
1. Annual manufacturing         No...............  This information is
 capacity of a facility as                          already publicly
 determined in Equation I-5.                        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.

[[Page 10443]]

 
2. For facilities that          No...............  The diameter of
 manufacture semiconductors,                        wafers manufactured
 the diameter of wafers                             at a facility is
 manufactured at a facility.                        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   No CBI             EPA was petitioned to
 etched/cleaned and the          determination      reconsider the
 feature type that was etched.   proposed in this   method and data
                                 rulemaking.        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       No CBI             The EPA was
 recipes included in a set of    determination      petitioned to
 similar recipes are similar.    proposed in this   reconsider the
                                 rulemaking.        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     No...............  These certification
 fluorinated GHG process                            statements are
 utilization and by-product                         general in nature,
 formation rates other than                         do not reveal other
 the defaults provided in                           information (e.g.,
 Tables I-3, I-4, I-5, I-6,                         market share,
 and I-7 and/or N2O                                 ability to increase
 utilization factors other                          production to meet
 than the defaults provided in                      new increases in
 Table I-8, certification that                      demand, price
 the conditions under which                         structures), and do
 the measurements were made                         not provide any
 for facility-specific N2O                          insight into the
 utilization factors are                            design or operation
 representative of your                             efficiencies of the
 facility's N2O emitting                            plant that would
 production processes.                              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      No...............  These measurement
 efficiency measurement                             records are limited
 records for abatement system                       to information about
 through which fluorinated                          the performance of
 GHGs or N2O flow at your                           the abatement
 facility over its in-use life.                     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       No...............  These certification
 abatement system is                                statements are
 installed, maintained, and                         general in nature,
 operated according to                              do not provide any
 manufacturer specifications.                       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.

[[Page 10444]]

 
8. The fluorinated GHG and N2O  No...............  This data element
 in the effluent stream to the                      does not include
 abatement system in the class                      information on the
 for which you are reporting                        quantity of gas(es)
 controlled emissions.                              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          Yes..............  The EPA finds that
 abatement systems in that                          information relating
 abatement system class for                         to the number of
 the reporting year.                                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         Yes..............  This data element
 abatement systems for which                        refers to the
 destruction or removal                             statistical sample
 efficiency was measured in                         size of abatement
 that abatement system class                        systems that the
 for the reporting year.                            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    Yes..............  The EPA has reviewed
 request BAMM in 2011 for                           all BAMM use
 parameters other than recipe-                      extension requests
 specific utilization and by-                       and determined that
 product formation rates for                        this data element
 the plasma etching process                         contains detailed
 type: Reasons why the needed                       operational
 equipment could not be                             information, which
 obtained, installed, or                            could provide
 operated or why the needed                         insight into
 measurement service could not                      configuration
 be provided before July 1,                         efficiencies that
 2011.                                              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    No...............  This data element
 request BAMM in 2011 for                           does not contain
 parameters other than recipe-                      process diagrams,
 specific utilization and by-                       operational
 product formation rates for                        information, or any
 the plasma etching process                         other information
 type: If the reason for the                        that would give
 extension is that the                              insight for
 equipment cannot be                                competitors to gain
 purchased, delivered, or                           an advantage over
 installed before July 1,                           the reporter.
 2011, include supporting                           Rather, it provides
 documentation (e.g.,                               information on
 backorder notices or                               administrative
 unexpected delays or                               activities and
 descriptions of actions taken                      regulatory
 to expedite delivery or                            requirements to
 installation).                                     which the facility
                                                    is subject that are
                                                    not protected as
                                                    proprietary or
                                                    exclusive by the
                                                    reporting
                                                    facilities.

[[Page 10445]]

 
13. Extension requests which    No...............  This data element
 request BAMM in 2011 for                           does not contain
 parameters other than recipe-                      detailed information
 specific utilization and by-                       that would give
 product formation rates for                        insight for
 the plasma etching process                         competitors to gain
 type: If the reason for the                        an advantage over
 extension is that service                          the reporter.
 providers were unable to                           Rather, it provides
 provide necessary measurement                      information on
 services, include supporting                       regulatory
 documentation demonstrating                        requirements and
 that these services could not                      administrative
 be acquired before July 1,                         activities to which
 2011. This documentation must                      the facility is
 include written                                    subject that are not
 correspondence to and from at                      protected as
 least three service providers                      proprietary or
 stating that they will not be                      exclusive by the
 available to provide the                           reporting
 necessary services before                          facilities.
 July 1, 2011.
14. Extension requests which    No...............  This data element
 request BAMM in 2011 for                           does not contain
 parameters other than recipe-                      detailed
 specific utilization and by-                       information, such as
 product formation rates for                        process diagrams and
 the plasma etching process                         operational
 type: Specific actions the                         information or any
 owner or operator will take                        other information
 to comply with monitoring                          that would give
 requirements by January 1,                         insight for
 2012.                                              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    Yes..............  The EPA has reviewed
 request BAMM in 2011 for                           all BAMM use
 recipe-specific utilization                        extension requests
 and by-product formation                           and determined that
 rates for plasma etching                           this data element
 process type: Reasons why the                      contains detailed
 needed equipment could not be                      information, such as
 obtained, installed, or                            operational
 operated or why the needed                         information, which
 measurement service could not                      could provide
 be provided before December                        insight into
 31, 2011.                                          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    No...............  This data element
 request BAMM in 2011 for                           does not contain
 recipe-specific utilization                        detailed
 and by-product formation                           information, such as
 rates for plasma etching                           process diagrams and
 process type: If the reason                        operational
 for the extension is that the                      information or any
 equipment cannot be                                other information
 purchased, delivered, or                           that would give
 installed before December 31,                      insight for
 2011, include supporting                           competitors to gain
 documentation (e.g.,                               an advantage over
 backorder notices or                               the reporter.
 unexpected delays or                               Rather, it provides
 descriptions of actions taken                      information on
 to expedite delivery or                            administrative
 installation).                                     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    No...............  This data element
 request BAMM in 2011 for                           does not contain
 recipe-specific utilization                        detailed
 and by-product formation                           information, such as
 rates for plasma etching                           process diagrams and
 process type: If the reason                        operational
 for the extension is that                          information or any
 service providers were unable                      other information
 to provide necessary                               that would give
 measurement services, include                      insight for
 supporting documentation                           competitors to gain
 demonstrating that these                           an advantage over
 services could not be                              the reporter.
 acquired before December 31,                       Rather, it provides
 2011. This documentation must                      information on
 include written                                    administrative
 correspondence to and from at                      activities and
 least three service providers                      regulatory
 stating that they will not be                      requirements to
 available to provide the                           which the facility
 necessary services before                          is subject that are
 December 31, 2011.                                 not protected as
                                                    proprietary or
                                                    exclusive by the
                                                    reporting
                                                    facilities.
18. Extension requests which    No...............  This data element
 request BAMM in 2011 for                           does not contain
 recipe-specific utilization                        detailed
 and by-product formation                           information, such as
 rates for plasma etching                           process diagrams and
 process type: Specific                             operational
 actions the owner or operator                      information or any
 will take to comply with                           other information
 monitoring requirements by                         that would give
 January 1, 2012.                                   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.

[[Page 10446]]

 
19. Extension requests which    Yes..............  The EPA has reviewed
 request BAMM beyond 2011:                          all of BAMM use
 Explanation as to why the                          extension requests
 requirements cannot be met.                        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    No...............  This data element
 request BAMM beyond 2011:                          does not contain
 Description of the unique                          detailed operational
 circumstances necessitating                        information or any
 an extension, including                            other information
 specific technical                                 that would give
 infeasibilities that conflict                      insight for
 with data collection.                              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    No...............  This data element
 request BAMM beyond 2011:                          does not contain
 Description of the unique                          detailed information
 circumstances necessitating                        that would give
 an extension, including                            insight for
 specific data collection                           competitors to gain
 issues that do not meet                            an advantage over
 safety regulations or                              the reporter.
 specific laws or regulations                       Rather, it provides
 that conflict with data                            information on
 collection.                                        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    No...............  This data element
 request BAMM beyond 2011:                          does not contain
 Explanation and supporting                         process diagrams or
 documentation of how the                           operational
 owner or operator will                             information that
 receive the required data and/                     would give insight
 or services to comply with                         for competitors to
 the reporting requirements.                        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    Yes..............  This data element
 request BAMM beyond 2011:                          could reveal
 Explanation and supporting                         information about
 documentation of when the                          the installation
 owner or operator will                             date of equipment
 receive the required data and/                     and the date of
 or services to comply with                         anticipated startup.
 the reporting requirements.                        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
---------------------------------------------------------------------------

    \4\ http://www.semi.org/en/Store/MarketInformation/fabdatabase/
ctr--027238.
---------------------------------------------------------------------------

    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

[[Page 10447]]

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 recipe-
specific 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,

[[Page 10448]]

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-for-profit 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

[[Page 10449]]

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.

[[Page 10450]]

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:


Sec.  98.94  Monitoring and QA/QC requirements.

    (a) * * *
    (2) * * *
    (iii) Approval criteria. To obtain approval, the owner or operator 
must demonstrate to the Administrator's satisfaction that by July 1, 
2011, it is not reasonably feasible to acquire, install, or operate the 
required piece of monitoring equipment, or procure necessary 
measurement services to comply with the requirements of this subpart.
    (3) * * *
    (iii) Approval criteria. To obtain approval, the owner or operator 
must demonstrate to the Administrator's satisfaction that by December 
31, 2011 it is not reasonably feasible to acquire, install, or operate 
the required piece of monitoring equipment or procure necessary 
measurement services to comply with the requirements of this subpart.
    (4) * * *
    (iii) Approval criteria. To obtain approval, the owner or operator 
must demonstrate to the Administrator's satisfaction that by December 
31, 2011 (or in the case of facilities that are required to calculate 
and report emissions in accordance with Sec.  98.93(a)(2)(ii)(A), 
December 31, 2012), it is not reasonably feasible to acquire, install, 
or operate the required piece of monitoring equipment according to the 
requirements of this subpart.
* * * * *
[FR Doc. 2012-3778 Filed 2-21-12; 8:45 am]
BILLING CODE 6560-50-P