Mandatory Reporting of Greenhouse Gases Rule: Confidentiality Determinations and Best Available Monitoring Methods Provisions
Federal Register Nbr. 77 FR 10434, February 22, 2012 › Proposed rules › Environmental Protection Agency
Linked as: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.
Text
Federal Register, Volume 77 Issue 35 (Wednesday, February 22, 2012)
Federal Register Volume 77, Number 35 (Wednesday, February 22, 2012)
Proposed Rules
Pages 10434-10450
From the Federal Register Online via the Government Printing 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: GHGReportingCBI@epa.gov.
Fax: (202) 566-1741.
Mail: Environmental Protection Agency, EPA Docket Center (EPA/DC), Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2011-0028, 1200 Pennsylvania Avenue NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center, Public Reading Room, EPA West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2011-0028. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be confidential business information (CBI) or other information whose disclosure is restricted by statute.
Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. Send or deliver information identified as CBI to only the mail or hand/courier delivery address listed above, attention: Docket ID No. EPA-HQ-OAR-2011-0028. The http://www.regulations.gov Web site is an ``anonymous access'' system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email,
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comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Docket, EPA/
DC, EPA West, Room B102, 1301 Constitution Ave. NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate Change Division, Office of Atmospheric Programs (MC-6207J), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 343-9263; fax number: (202) 343-2342; email address: GHGReportingRule@epa.gov. For technical information, contact the Greenhouse Gas Reporting Rule Hotline at: http://www.epa.gov/climatechange/emissions/ghgrule_contactus.htm. Alternatively, contact Carole Cook at (202) 343-9263.
SUPPLEMENTARY INFORMATION: Additional information on submitting comments: To expedite review of your comments by agency staff, you are encouraged to send a separate copy of your comments, in addition to the copy you submit to the official docket, to Carole Cook, U.S. EPA, Office of Atmospheric Programs, Climate Change Division, Mail Code 6207-J, Washington, DC 20460, telephone (202) 343-9263, email address: GHGReportingRule@epa.gov.
Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of this proposal, memoranda to the docket, and all other related information will also be available through the WWW on the EPA's Greenhouse Gas Reporting Rule Web site at http://www.epa.gov/climatechange/.
Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document.
BAMM best available monitoring methods
CAA Clean Air Act
CO2 carbon dioxide
CBI confidential business information
CFR Code of Federal Regulations
DRE Destruction or Removal Efficiency
EPA U.S. Environmental Protection Agency
F-GHG fluorinated greenhouse gas
GHG greenhouse gas
HTF heat transfer fluid
mtCO2e metric ton carbon dioxide equivalent
N2O nitrous oxide
NTTAA National Technology Transfer and Advancement Act of 1995
OMB Office of Management & Budget
RFA Regulatory Flexibility Act
RSASTP Random Sampling Abatement System Testing Program
UMRA Unfunded Mandates Reform Act of 1995
U.S. United States
WWW Worldwide Web
Organization of This Document. The following outline is provided to aid in locating information in this preamble. Section I of this preamble provides general information on the Greenhouse Gas Reporting Program and preparing comments on this action. Sections II and III discuss the CBI re-proposal, and Section IV discusses the proposed amendments to the best available monitoring provisions. Section V discusses statutes and executive orders applicable to this action.
I. General Information
A. What is the purpose of this action?
B. Does this action apply to me?
C. Legal Authority
D. What should I consider as I prepare my comments to the EPA?
II. Background and General Rationale on CBI Re-Proposal
A. Background on CBI Re-Proposal
B. What is the rationale for re-proposing the CBI determinations for subpart I?
C. How does the Subpart I Heat Transfer Fluid Provisions final rule affect the CBI re-proposal?
III. Re-Proposal of CBI Determinations for Subpart I
A. Overview
B. Request for Comments
C. Approach to Making Confidentiality Determinations
D. Proposed Confidentiality Determinations for Individual Data Elements in Two Data Categories
E. Commenting on the Proposed Confidentiality Determinations in Two Direct Emitter Categories
IV. Background and Rationale for the Proposed Amendments to the Best Available Monitoring Method Provisions
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
I. General Information
A. What is the purpose of this action?
The EPA is re-proposing confidentiality determinations for the data elements in subpart I of 40 CFR part 98 of the Mandatory Reporting of Greenhouse Gases Rule (hereinafter referred to as ``Part 98''). Subpart I of Part 98 requires monitoring and reporting of greenhouse gas (GHG) emissions from electronics manufacturing. The electronics manufacturing source category (hereinafter referred to as ``subpart I'') includes facilities that have annual emissions equal to or greater than 25,000 mtCO2e.
The proposed confidentiality determinations in this notice cover all of the data elements that are currently in subpart I except for those that are in the ``Inputs to Emission Equations'' data category. The covered data elements and their proposed data category assignments are listed by data category in the memorandum entitled ``Proposed Data Category Assignments for Subpart I'' in Docket EPA-HQ-OAR-2011-0028.
This action also proposes amendments to provisions in subpart I regarding the calculation and reporting of emissions from facilities that use best available monitoring methods (BAMM). Following the December 1, 2010 publication finalizing subpart I in the ``Mandatory Reporting of Greenhouse Gases: Additional Sources of
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Fluorinated GHGs'' rule (75 FR 74774, hereinafter referred to as the ``final subpart I rule''), industry members requested reconsideration of several provisions in the final subpart I rule. This action responds to a petition for reconsideration of the specific subpart I provisions that require facilities that have been granted extensions to use BAMM to recalculate their emissions for the time period for which BAMM was granted at a later date, after they have begun following all applicable monitoring requirements of subpart I.
In today's notice, the EPA is not taking any action on other issues raised by the petitioners. Although we are not seeking comment on those issues at this time, the EPA reserves the right to further consider those issues at a later time.
B. Does this action apply to me?
This proposal affects entities that are required to submit annual GHG reports under subpart I of Part 98. The Administrator determined that this action is subject to the provisions of Clean Air Act (CAA) section 307(d). See CAA section 307(d)(1)(V) (the provisions of CAA section 307(d) apply to ``such other actions as the Administrator may determine''). Part 98 and this action affect owners and operators of electronics manufacturing facilities. Affected categories and entities include those listed in Table 1 of this preamble.
Table 1--Examples of Affected Entities by Category
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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.
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Table 1 of this preamble lists the types of entities that potentially could be affected by the reporting requirements under the subpart covered by this proposal. However, this list is not intended to be exhaustive, but rather provides a guide for readers regarding facilities likely to be affected by this action. Other types of facilities not listed in the table could also be subject to reporting requirements. To determine whether you are affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98, subpart A as well as 40 CFR part 98, subpart I. If you have questions regarding the applicability of this action to a particular facility, consult the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.
C. Legal Authority
The EPA is proposing rule amendments under its existing CAA authority, specifically authorities provided in CAA section 114. As stated in the preamble to the 2009 final rule (74 FR 56260) and the Response to Comments on the Proposed Rule, Volume 9, Legal Issues, CAA section 114 provides the EPA broad authority to obtain the information in Part 98, including those in subpart I, because such data would inform and are relevant to the EPA's carrying out a wide variety of CAA provisions. As discussed in the preamble to the initial proposed Part 98 (74 FR 16448, April 10, 2009), CAA section 114(a)(1) authorizes the Administrator to require emissions sources, persons subject to the CAA, manufacturers of control or process equipment, or persons whom the Administrator believes may have necessary information to monitor and report emissions and provide such other information the Administrator requests for the purposes of carrying out any provision of the CAA.
D. What should I consider as I prepare my comments to the EPA?
1. Submitting Comments That Contain CBI
Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. Send or deliver information identified as CBI to only the mail or hand/courier delivery address listed above, attention: Docket ID No. EPA-HQ-OAR-2011-0028.
If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.
2. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify the rulemaking by docket number and other identifying information (e.g., subject heading, Federal Register date and page number).
Follow directions. The EPA may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.
Explain why you agree or disagree, and suggest alternatives and substitute language for your requested changes.
Describe any assumptions and provide any technical information and/
or data that you used.
If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow us to reproduce your estimate.
Provide specific examples to illustrate your concerns and suggest alternatives.
Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
Make sure to submit your information and comments by the comment period deadline identified in the preceding section titled DATES. To ensure proper receipt by the EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.
To expedite review of your comments by agency staff, you are encouraged to send a separate copy of your comments, in addition to the copy you submit to the official docket, to Carole Cook, U.S. EPA, Office of Atmospheric Programs, Climate Change Division, Mail Code 6207-J, Washington, DC 20460, telephone (202) 343-9263, email GHGReportingCBI@epa.gov. You are also encouraged to send a separate copy of your CBI information to Carole Cook
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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.
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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
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Confidentiality determination for data elements in each
category
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Data category Data that are not Data that are not
Emission data \a\ emission data and emission data but
not CBI are CBI \b\
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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....................................
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\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
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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
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Proposed to be
Data element confidential? Justification
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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
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ctr--027238.
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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
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