[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Rules and Regulations]
[Pages 81337-81347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32450]
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Part II
Environmental Protection Agency
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40 CFR Part 98
Interim Final Regulation Deferring the Reporting Date for Certain Data
Elements Required Under the Mandatory Reporting of Greenhouse Gases
Rule; Interim Final Rule
Federal Register / Vol. 75 , No. 247 / Monday, December 27, 2010 /
Rules and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 98
[EPA-HQ-OAR-2010-0929 FRL-9242-7]
Interim Final Regulation Deferring the Reporting Date for Certain
Data Elements Required Under the Mandatory Reporting of Greenhouse
Gases Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: EPA is promulgating this interim final rule to defer until
August 31, 2011 the reporting deadline for year 2010 data elements that
are inputs to emission equations under the Mandatory Greenhouse Gas
Reporting Rule. In response to EPA's July 7, 2010 proposed
confidentiality determinations for data required under the reporting
rule, EPA received several comments raising concerns that warrant
further consideration before EPA issues final confidentiality
determinations for data elements that are inputs to emission equations
for direct emitters. To allow time for EPA to consider these comments
and other information concerning these data elements before they are
reported to EPA, EPA is deferring direct emitter reporting of the data
elements in the inputs to emission equations data category until August
31, 2011, while concurrently publishing both a proposed notice and
comment rulemaking to defer the reporting date for these inputs and a
call for information to assist EPA in its deliberations on this matter.
DATES: This interim final rule is effective on December 27, 2010.
ADDRESSES: 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., Confidential Business
Information (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
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate Change Division,
Office of Atmospheric Programs (MC-6207J), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number: (202) 343-9263; fax number: (202) 343-2342; e-mail address:
[email protected].
Worldwide Web (WWW). In addition to being available in the docket,
an electronic pre-publication copy of this interim final rule will also
be available through the WWW. Following the Administrator's signature,
a copy of this action will be posted on EPA's greenhouse gas reporting
rule Web site at http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.
SUPPLEMENTARY INFORMATION:
Acronyms and Abbreviations. The following acronyms and
abbreviations are used in this document.
APA Administrative Procedure Act
CAA Clean Air Act
CBI confidential business information
CEMS continuous emission monitoring system(s)
CFR Code of Federal Regulations
EPA U.S. Environmental Protection Agency
FR Federal Register
GHG greenhouse gas
RFA Regulatory Flexibility Act
UMRA Unfunded Mandates Reform Act
U.S. United States
WWW Worldwide Web
Organization of This Document. The following outline is provided to
aid in locating information in this preamble.
I. Background
II. Summary of the Interim Final Rule
A. Facilities Affected
B. Amendment
III. Rationale for the Interim Final Rule
IV. Need for an Interim Final Rule
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
Does this action apply to me? 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''). This action amends existing regulations. Entities
affected by this action are owners or operators of facilities that are
direct emitters of greenhouse gases (GHGs) and are required to report
these emissions under 40 CFR part 98, which include those listed in
Table 1 of this preamble:
Table 1--Examples of Affected Entities by Category
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Category NAICS Examples of affected facilities
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General Stationary Fuel Combustion Sources.. .................. Facilities operating boilers, process heaters,
incinerators, turbines, and internal
combustion engines:
321 Manufacturers of lumber and wood products.
322 Pulp and paper mills.
325 Chemical manufacturers.
324 Petroleum refineries, and manufacturers of
coal products.
316, 326, 339 Manufacturers of rubber and miscellaneous
plastic products.
331 Steel works, blast furnaces.
332 Electroplating, plating, polishing, anodizing,
and coloring.
336 Manufacturers of motor vehicle parts and
accessories.
221 Electric, gas, and sanitary services.
622 Health services.
611 Educational services.
325193 Ethyl alcohol manufacturing facilities.
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311611 Meat processing facilities.
311411 Frozen fruit, juice, and vegetable
manufacturing facilities.
311421 Fruit and vegetable canning facilities.
Electricity Generation...................... 221112 Fossil-fuel fired electric generating units,
including units owned by Federal and
municipal governments and units located in
Indian Country.
Adipic Acid Production...................... 325199 Adipic acid manufacturing facilities.
Aluminum Production......................... 331312 Primary Aluminum production facilities.
Ammonia Manufacturing....................... 325311 Anhydrous and aqueous ammonia manufacturing
facilities.
Cement Production........................... 327310 Portland Cement manufacturing plants.
Ferroalloy Production....................... 331112 Ferroalloys manufacturing facilities.
Glass Production............................ 327211 Flat glass manufacturing facilities.
327213 Glass container manufacturing facilities.
327212 Other pressed and blown glass and glassware
manufacturing facilities.
HCFC-22 Production and HFC-23 Destruction... 325120 Chlorodifluoromethane manufacturing
facilities.
Hydrogen Production......................... 325120 Hydrogen manufacturing facilities.
Iron and Steel Production................... 331111 Integrated iron and steel mills, steel
companies, sinter plants, blast furnaces,
basic oxygen process furnace shops.
Lead Production............................. 331419 Primary lead smelting and refining facilities.
331492 Secondary lead smelting and refining
facilities.
Lime Production............................. 327410 Calcium oxide, calcium hydroxide, dolomitic
hydrates manufacturing facilities.
Nitric Acid Production...................... 325311 Nitric acid manufacturing facilities.
Petrochemical Production.................... 32511 Ethylene dichloride manufacturing facilities.
325199 Acrylonitrile, ethylene oxide, methanol
manufacturing facilities.
325110 Ethylene manufacturing facilities.
325182 Carbon black manufacturing facilities.
Petroleum Refineries........................ 324110 Petroleum refineries.
Phosphoric Acid Production.................. 325312 Phosphoric acid manufacturing facilities.
Pulp and Paper Manufacturing................ 322110 Pulp mills.
322121 Paper mills.
322130 Paperboard mills.
Silicon Carbide Production.................. 327910 Silicon carbide abrasives manufacturing
facilities.
Soda Ash Manufacturing...................... 325181 Alkalies and chlorine manufacturing
facilities.
212391 Soda ash, natural, mining and/or
beneficiation.
Titanium Dioxide Production................. 325188 Titanium dioxide manufacturing facilities.
Zinc Production............................. 331419 Primary zinc refining facilities.
331492 Zinc dust reclaiming facilities, recovering
from scrap and/or alloying purchased metals.
Municipal Solid Waste Landfills............. 562212 Solid waste landfills.
221320 Sewage treatment facilities.
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Table 1 of this preamble is not intended to be exhaustive, but
rather provides a guide for readers regarding facilities likely to be
affected by this action. Types of facilities other than those 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 or the
relevant criteria in subparts C though HH, excluding subparts I, L, T,
W, DD, and FF. If you have questions regarding the applicability of
this action to a particular facility, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT Section.
Judicial Review. Under CAA section 307(b)(1), judicial review of
this interim final rule is available only by filing a petition for
review in the U.S. Court of Appeals for the District of Columbia
Circuit by February 25, 2011. Filing a petition for reconsideration by
the Administrator of this interim final rule does not affect the
finality of this rule for the purpose of judicial review nor does it
extend the time within which petitions for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
Any person seeking to make such a demonstration to EPA should submit a
Petition for Reconsideration to the Office of the Administrator,
Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200
Pennsylvania Ave., NW., Washington, DC 20004, with a copy to the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section, and
the Associate General Counsel for the Air and Radiation Law Office,
Office of General Counsel (Mail Code 2344A), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004. This action
may not be challenged later in proceedings to enforce its requirements.
(See CAA section 307(b)(2)).
I. Background
On October 30, 2009, EPA published the Mandatory GHG Reporting Rule
for collecting information regarding GHGs from a broad range of
industry sectors (74 FR 56260). Under 40 CFR part 98 of the GHG
Reporting Rule (hereinafter referred to as ``Part 98'') and its
subsequent amendments, EPA will collect data from certain facilities
and suppliers above specified thresholds. The data to be reported
consists of GHG emissions information as well as other data, including
information necessary to characterize, quantify, and verify the
reported emissions. 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
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emissions data, and are CBI'' (74 FR 56287, October 30, 2009).
On July 7, 2010, EPA proposed confidentiality determinations for
Part 98 data elements and proposed amending EPA's regulation for
handling confidential business information to add specific procedures
for the treatment of Part 98 data (75 FR 39094; hereinafter referred to
as the ``July 7, 2010 CBI proposal''). The July 7, 2010 CBI proposal
proposed confidentiality statuses for the data elements for subparts
included in the 2009 final Part 98 rule (see 74 FR 56260, October 30,
2009), four subparts finalized in July 2010 (see 75 FR 39736, July 12,
2010), and seven new subparts that had been proposed but not yet
finalized as of July 2010 (see 75 FR 18576, 75 FR 18608, and 75 FR
18652, April 12, 2010). The July 7, 2010 CBI proposal also covered
proposed changes to the reporting requirements for some of the 2009
final Part 98 subparts. These changes were proposed in two separate
rulemakings (see 75 FR 18455, April, 12, 2010; and 75 FR 33950, June
15, 2010).
On August 11, 2010, EPA published a proposed amendment to Part 98
to change the description of some reported data elements and require
reporting of some new data elements (75 FR 48744; hereinafter referred
to as the ``August 11, 2010 revisions proposal''). EPA concurrently
issued a supplemental CBI proposal that proposed confidentiality
determinations for the new and revised data elements included in the
August 11, 2010 revisions proposal (75 FR 43889, July 27, 2010;
hereinafter referred to as the ``July 27, 2010 supplemental CBI
proposal'').
As described in detail in the CBI proposals identified above, EPA
grouped Part 98 data into 22 data categories (11 direct emitter data
categories and 11 supplier data categories), with each of the
categories containing data elements that are similar in type or
characteristics. EPA then proposed confidentiality determinations for
each category, with a few exceptions that are not relevant to today's
action. Consistent with EPA's long-standing interpretation, EPA
proposed that data elements in the inputs to emission equations data
category meet the definition of emission data under 40 CFR
2.301(a)(2)(i) and therefore, under CAA section 114(c), cannot be held
as confidential once they are reported to EPA.
EPA received numerous public comments on the July 7, 2010 CBI
proposal and the July 27, 2010 supplemental CBI proposal. Though we are
still in the process of considering these comments, we plan to complete
our consideration of these comments and issue final confidentiality
determinations for the Part 98 data elements that are not inputs to
emission equations, approximately 75 percent of the data elements, in a
separate action. However, as explained in more detail in Section III of
this preamble, EPA received comments that raise concerns regarding the
possible public availability of the data in the inputs to emission
equations category. EPA has determined that these concerns warrant in-
depth evaluation of the potential impact from the release of inputs to
emission equations, as well as collection and review of additional
information, that cannot be completed before the March 31, 2011
reporting deadline.
In the concurrent proposed rule, EPA is proposing to defer the
reporting of inputs to equations until March 31, 2014,\1\ affording EPA
additional time to complete the evaluation described above and take
appropriate final actions regarding inputs to equations before these
data elements are reported to EPA and potentially subject to release.
EPA is also concurrently publishing a call for information, entitled
``Information on Inputs to Emission Equations under the Mandatory
Reporting of Greenhouse Gases Rule,'' to collect additional information
that will assist EPA with our deliberations. EPA is issuing this
interim final rule to afford EPA the time needed to implement the
notice and comment requirements for the longer deferral.
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\1\ The record-keeping requirements of Part 98 remain in place.
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II. Summary of the Interim Final Rule
A. Facilities Affected
This action affects only facilities that are subject to the source
category-specific reporting requirements in 40 CFR part 98, subparts C
through HH, excluding subparts I, L, T, W, DD, and FF. This includes
only direct-emitting facilities covered by the Part 98 subparts
published on October 30, 2009, which require these facilities to begin
monitoring emissions on January 1, 2010 and to submit their first
annual GHG report (covering calendar year 2010 emissions) by March 31,
2011. The list of affected source categories is provided in Table 2 of
this preamble.\2\
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\2\ Certain source categories were revised in an action signed
on November 24, 2010, which is available on our Web site, http://www.epa.gov/climatechange/emissions/technical-corrections.html#revisions.
Table 2--Source Categories Covered by This Action
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Federal Register
Source category 40 CFR Part 98 Subpart Notice
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General Stationary Fuel C..................... 74 FR 56260,
Combustion Sources. Revised 11-24-
2010.
Electricity Generation........ D..................... 74 FR 56260,
Revised 11-24-
2010.
Adipic Acid Production........ E..................... 74 FR 56260, 75
FR 66434.
Aluminum Production........... F..................... 74 FR 56260,
Revised 11-24-
2010.
Ammonia Manufacturing......... G..................... 74 FR 56260,
Revised 11-24-
2010.
Cement Production............. H..................... 74 FR 56260, 75
FR 66434.
Ferroalloy Production......... K..................... 74 FR 56260, 75
FR 66434.
Glass Production.............. N..................... 74 FR 56260, 75
FR 66434.
HCFC-22 Production and HFC-23 O..................... 74 FR 56260, 75
Destruction. FR 66434.
Hydrogen Production........... P..................... 74 FR 56260, 75
FR 66434,
Revised 11-24-
2010.
Iron and Steel Production..... Q..................... 74 FR 56260, 75
FR 66434.
Lead Production............... R..................... 74 FR 56260.
Lime Manufacturing............ S..................... 74 FR 56260, 75
FR 66434.
Miscellaneous Uses of U..................... 74 FR 56260.
Carbonate.
Nitric Acid Production........ V..................... 74 FR 56260, 75
FR 66434,
Revised 11-24-
2010.
Petrochemical Production...... X..................... 74 FR 56260,
Revised 11-24-
2010.
Petroleum Refineries.......... Y..................... 74 FR 56260,
Revised 11-24-
2010.
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Phosphoric Acid Production.... Z..................... 74 FR 56260, 75
FR 66434.
Pulp and Paper Manufacturing.. AA.................... 74 FR 56260,
Revised 11-24-
2010.
Silicon Carbide Production.... BB.................... 74 FR 56260.
Soda Ash Manufacturing........ CC.................... 74 FR 56260, 75
FR 66434.
Titanium Dioxide Production... EE.................... 74 FR 56260, 75
FR 66434.
Zinc Production............... GG.................... 74 FR 56260, 75
FR 66434.
Municipal Solid Waste HH.................... 74 FR 56260, 75
Landfills. FR 66434.
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B. Amendment
EPA is adding a table (Table A-6) to 40 CFR part 98, subpart A,
specifying the individual data elements that are affected by this
action. The table, which includes Part 98 data elements that EPA has
assigned to the inputs to equations data category with an initial
reporting year of 2010 and original initial reporting date of March 31,
2011, is organized by subpart and shows the regulatory citations for
each of the data elements.\3\ In addition, under the annual reporting
requirement at 40 CFR 98.3(c), EPA is adding 40 CFR 98.3(c)(4)(vii),
stating that reporting of the data elements listed in Table A-6 for
calendar year 2010 is not required until August 31, 2011.
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\3\ The list of inputs to equations is slightly different than
what was proposed in the July 7, 2010 CBI proposal. Reporting
elements included in this category are values used by reporters to
calculate equation outputs.
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This interim final rule does not change any other requirements of
Part 98, including the requirement that inputs to equations be retained
as records in a form that is suitable for expeditious inspection and
review (required for all Part 98 records by 40 CFR 98.3(g)).
III. Rationale for the Interim Final Rule
In the July 7, 2010, CBI proposal, EPA proposed that data elements
in the inputs to emission equations data category meet the definition
of emission data under 40 CFR 2.301(a)(2)(i), consistent with our long-
standing interpretation, and therefore, under CAA section 114(c), could
not be held as confidential once they were reported to EPA. In
response, EPA received comments that release of such information could
cause serious business harms, and EPA considers some of these comments
to warrant more extensive evaluation of potential impacts from the
public availability of inputs to equations. To avoid the risk of having
to make this data publicly available before EPA can fully consider the
potential impact from such release, we are proposing the concurrent
longer-term deferral to give EPA time to conduct this evaluation and
take appropriate actions regarding inputs to equations (see Section III
of the preamble to that proposed rule, ``Change to the Reporting Date
for Certain Data Elements Required Under the Mandatory Reporting of
Greenhouse Gases Rule,'' for further rationale). This interim final
rule defers reporting of these inputs to the agency for a brief period
while EPA promulgates the longer-term deferral through notice and
comment.
This interim final rule defers reporting of inputs to equations
until August 31, 2011, because EPA needs this time to complete the
rulemaking for the longer-term deferral. To assist in this rulemaking,
EPA is concurrently issuing a call for information and providing a 60-
day comment period. EPA expects to receive a large number of comments,
many of which may be technically complex. EPA must conduct an overview
of the information and comment received before finalizing the proposed
deferral to ensure that deferral of the inputs reporting deadline until
March 31, 2014 is appropriate, and EPA must finalize any longer-term
deferral before the interim final deferral date.
IV. Need for an Interim Final Rule
EPA is issuing this final rule under section 307(d)(1) of the Clean
Air Act, which states: ``The provisions of section 553 through 557 * *
* of Title 5 shall not, except as expressly provided in this section,
apply to actions to which this subsection applies. This subsection
shall not apply in the case of any rule or circumstance referred to in
subparagraphs (A) or (B) of subsection 553(b) of Title 5.'' Consistent
with this language, EPA is using the good cause exemption under the
Administrative Procedure Act (APA) to take the actions set forth in
this interim final rule without prior notice and comment. See 5 U.S.C.
553(b)(3)(B). Section 553(b) of the APA generally requires that any
rule to which it applies be issued only after the public has received
notice of, and had an opportunity to comment on, the proposed rule.
However, APA section 553(b)(3)(B) exempts from those requirements any
rule for which the issuing agency for good cause finds that providing
prior notice and comment would be impracticable, unnecessary, or
contrary to the public interest. Thus, any rule for which EPA makes
such a finding is exempt from the notice and comment requirements of
APA section 553(b).
EPA considers the present circumstances to provide good cause to
take the actions set forth in this interim final rule without prior
notice and comment because providing prior notice and comment would be
impracticable, unnecessary, and contrary to the public interest. Notice
and comment on this short deferral are impracticable, as EPA may not be
able to complete a notice and comment rulemaking for a deferral before
the March 31, 2011 reporting deadline, thus defeating the purpose of
undertaking such a rulemaking. Further, even if EPA could complete a
notice and comment deferral before March 31, 2011, EPA would not then
be able to complete the electronic data reporting tool that we are
developing for reporting of all data elements under Part 98 with
sufficient lead time before the March 31, 2011 reporting deadline. To
enable the development and release of this tool for timely reporting,
EPA must know well in advance of the March 31, 2011 reporting deadline
which data elements will be reported on that date. Even if EPA were
able to promulgate a deferral with notice and comment by March 31,
2011, EPA still would not have sufficient time after the rule's
finalization to make necessary adjustments and complete the reporting
tool before it must be made available to reporters. This includes time
for reporters to learn to use this new reporting system.
Further, given the short period of time that this interim final
rule will be in effect and EPA's promulgation of a concurrent notice
and comment rulemaking to defer the reporting deadline for inputs to
equations for a longer period of time, EPA considers
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soliciting public comment on this interim final rule to be unnecessary.
This interim final rule simply provides the Agency with brief
additional time to complete the concurrent rulemaking necessary to
defer reporting of inputs to a later date that will give EPA time to
fully address concerns about reporting of inputs to equations. The
public will have an opportunity to comment on the concurrent proposed
rule.
EPA also considers soliciting public comment on this interim final
rule, which would prevent the rule from being finalized in time to
defer reporting by March 31, 2011, to be contrary to the public
interest. EPA is deferring reporting of certain data elements to avoid
possibly causing unnecessary and unintentional, but irreparable, harm
to reporters that they allege could occur if such information were
reported to EPA and not treated as confidential. Because taking comment
on this short-term deferral would defeat the purpose of this interim
final rule, EPA finds good cause to defer for a short period of time
the deadline for reporting inputs to equations under Part 98 without
notice and comment.
EPA is also using the APA's good cause exemption to make this
interim final rule effective on December 27, 2010. See 5 U.S.C.
553(d)(3). Section 553(d) of the APA, 5 U.S.C. Chapter 5, generally
provides that rules may not take effect earlier than 30 days after they
are published in the Federal Register. EPA is issuing this interim
final rule under CAA section 307(d)(1), which states: ``The provisions
of section 553 through 557 * * * of Title 5 shall not, except as
expressly provided in this section, apply to actions to which this
subsection applies.'' Thus, section 553(d) of the APA does not apply to
this rule. EPA is nevertheless acting consistently with the purposes
underlying APA section 553(d) in making this rule effective on December
27, 2010.
Section 553(d)(3) of the APA allows an effective date less than 30
days after publication ``as otherwise provided by the agency for good
cause found and published with the rule.'' As explained below, EPA
finds that there is good cause for this rule to become effective on
December 27, 2010, even though this results in an effective date fewer
than 30 days from date of publication in the Federal Register.
The purpose of the 30-day waiting period prescribed in APA section
553(d) is to give affected parties a reasonable time period to adjust
their behavior and prepare before the final rule takes effect. This
interim final rule defers a reporting date, requiring little
preparation or behavior adjustment. A shorter effective date in such
circumstances is consistent with the purposes of APA section 553(d),
which provides an exception for any action that grants or recognizes an
exemption or relieves a restriction. Further, APA section 553(d)(3)
provides that if the issuing agency has made a finding of good cause
and published its reasoning with the rule, the rule may take effect
sooner than 30 days. EPA has determined that good cause exists to defer
the reporting date for inputs to emission equations until August 31,
2011 in this interim final rule without prior notice and comment,
because prior notice and comment would be impracticable, unnecessary,
and contrary to the public interest for the reasons stated above.
Accordingly, we find that good cause exists to make this rule effective
on December 27, 2010, consistent with the purposes of APA section
553(d)(3).
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This interim final rule defers the reporting deadline for certain 2010
data elements, so it does not increase the reporting burden. However,
OMB has previously approved the information collection requirements
contained in the regulations promulgated on October 30, 2009, under 40
CFR part 98 under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. and has assigned OMB control number 2060-0629. EPA
has also submitted the Information Collection Request requirements for
four additional Part 98 subparts promulgated on July 12, 2010 to OMB
for approval (see 75 FR 39756). The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The 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 effects of this rule on small
entities, ``small entity'' is defined as: (1) A small business as
defined by the Small Business Administration's regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this interim final rule
on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
The rule will not impose any new requirement on small entities that are
not currently required by Part 98.
EPA took several steps to reduce the impact of Part 98 on small
entities. For example, EPA determined appropriate thresholds that
reduced the number of small businesses reporting. In addition, EPA did
not require facilities to install continuous emission monitoring
systems (CEMS) if they did not already have them. Facilities without
CEMS can calculate emissions using readily available data or data that
are less expensive to collect such as process data or material
consumption data. For some source categories, EPA developed tiered
methods that are simpler and less burdensome. Also, EPA required annual
instead of more frequent reporting. Finally, EPA continues to conduct
significant outreach on the mandatory GHG reporting rule and maintains
an ``open door'' policy for stakeholders to help inform EPA's
understanding of key issues for the industries and others.
We continue to be interested in the potential effects of this
interim final rule 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
[[Page 81343]]
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates and must inform, educate, and advise
small governments on compliance with the regulatory requirements.
The amendment to 40 CFR Part 98 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. The amendment only postpones the reporting date for
certain data elements under Part 98, so it does not increase the costs
for facilities to comply with Part 98. Thus, the action is not subject
to the requirements of sections 202 or 205 of UMRA.
In developing Part 98, EPA consulted with small governments
pursuant to a plan established under section 203 of UMRA to address
effects of regulatory requirements in the rule that might significantly
or uniquely affect small governments. For a summary of 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 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 amendment applies to facilities that directly emit greenhouses
gases. It does not apply to government entities unless a government
entity owns a facility that directly emits greenhouse gases above
threshold levels (such as a landfill), so relatively few government
facilities would be affected. This regulation 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.
For a summary of 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). The rule does
not result in any changes to the requirements of Part 98 other than
postponing the reporting date for certain data elements until August
31, 2011. Thus, Executive Order 13175 does not apply to this action.
For a summary of 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).
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272 note) directs
EPA to use voluntary consensus standards in its regulatory activities
unless to do so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standards bodies. NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable voluntary consensus standards.
The rule does not involve technical standards. Therefore, EPA is
not considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this interim final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The amendment addresses only reporting and recordkeeping
procedures.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Section 808 allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice and public procedure is impracticable,
unnecessary or contrary to the public interest. This determination must
be supported by a brief statement. 5 U.S.C. 808(2). As stated
previously, EPA has made such a good cause finding, including the
reasons therefor, and established an effective date of December 27,
2010. EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 98
Environmental protection, Administrative practice and procedure,
Greenhouse gases, Reporting and recordkeeping requirements.
[[Page 81344]]
Dated: December 17, 2010.
Lisa P. Jackson,
Administrator.
0
For the reasons set out in the preamble, title 40, Chapter I, of the
Code of Federal Regulations is amended as follows:
PART 98--[AMENDED]
0
1. The authority citation for Part 98 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Amended]
0
2. Section 98.3 is amended by revising paragraph (c)(4)(iv) and adding
paragraph (c)(4)(vii) to read as follows:
Sec. 98.3 What are the general monitoring, reporting, recordkeeping,
and verification requirements of this part?
* * * * *
(c) * * *
(4) * * *
(iv) Except as provided in paragraph (c)(4)(vii) of this section,
emissions and other data for individual units, processes, activities,
and operations as specified in the ``Data reporting requirements''
section of each applicable subpart of this part.
* * * * *
(vii) The owner or operator of a facility is not required to report
the data elements specified in Table A-6 of this subpart for calendar
year 2010 until August 31, 2011.
* * * * *
0
3. Add Table A-6 to subpart A to read as follows:
Table A-6 to Subpart A--Data Elements That are Inputs to Emission
Equations and for Which the Reporting Deadline Is Changed to August 31,
2011
------------------------------------------------------------------------
Specific Data Elements for
Which Reporting Date is
Rule Citation (40 CFR Changed (``All'' means
Subpart part 98) that the date is changed
for all data elements in
the cited paragraph)
------------------------------------------------------------------------
A................... 98.3(d)(3)(v)......... All.
C................... 98.36(b)(9)(iii)...... Only estimate of the heat
input.
C................... 98.36(c)(2)(ix)....... Only estimate of the heat
input from each type of
fuel listed in Table C-2.
C................... 98.36(d)(1)(iv)....... All.
C................... 98.36(d)(2)(ii)(G).... All.
C................... 98.36(d)(2)(iii)(G)... All.
C................... 98.36(e)(2)(i)........ All.
C................... 98.36(e)(2)(ii)(A).... All.
C................... 98.36(e)(2)(ii)(C).... Only HHV value for each
calendar month in which
HHV determination is
required.
C................... 98.36(e)(2)(ii)(D).... All.
C................... 98.36(e)(2)(iv)(A).... All.
C................... 98.36(e)(2)(iv)(C).... All.
C................... 98.36(e)(2)(iv)(F).... All.
C................... 98.36(e)(2)(iv)(G).... All.
C................... 98.36(e)(2)(vi)(C).... Only stack gas flow rate
and moisture content.
C................... 98.36(e)(2)(viii)(A).. All.
C................... 98.36(e)(2)(viii)(B).. All.
C................... 98.36(e)(2)(viii)(C).. All.
C................... 98.36(e)(2)(ix)(D).... All.
C................... 98.36(e)(2)(ix)(E).... All.
C................... 98.36(e)(2)(ix)(F).... All.
C................... 98.36(e)(2)(x)(A)..... All.
C................... 98.36(e)(2)(xi)....... All.
E................... 98.56(b).............. All.
E................... 98.56(c).............. All.
E................... 98.56(g).............. All.
E................... 98.56(h).............. All.
E................... 98.56(j)(1)........... All.
E................... 98.56(j)(3)........... All.
E................... 98.56(j)(4)........... All.
E................... 98.56(j)(5)........... All.
E................... 98.56(j)(6)........... All.
E................... 98.56(l).............. All.
F................... 98.66(a).............. All.
F................... 98.66(c)(2)........... All.
F................... 98.66(c)(3)........... Only smelter-specific
slope coefficients and
overvoltage emission
factors.
F................... 98.66(e)(1)........... Only annual anode
consumption (No CEMS).
F................... 98.66(f)(1)........... Only annual paste
consumption (No CEMS).
F................... 98.66(g).............. All.
G................... 98.76(b)(2)........... All.
G................... 98.76(b)(7)........... All.
G................... 98.76(b)(8)........... All.
G................... 98.76(b)(9)........... All.
G................... 98.76(b)(10).......... All.
G................... 98.76(b)(11).......... All.
H................... 98.86(b)(2)........... All.
H................... 98.86(b)(5)........... All.
H................... 98.86(b)(6)........... All.
H................... 98.86(b)(8)........... All.
H................... 98.86(b)(10).......... All.
H................... 98.86(b)(11).......... All.
H................... 98.86(b)(12).......... All.
H................... 98.86(b)(13).......... All.
[[Page 81345]]
H................... 98.86(b)(15).......... Only monthly kiln-specific
clinker factors (if used)
for each kiln.
K................... 98.116(b)............. Only annual production by
product from each EAF (No
CEMS).
K................... 98.116(e)(4).......... All.
K................... 98.116(e)(5).......... All.
N................... 98.146(b)(2).......... Only annual quantity of
carbonate based-raw
material charged to each
continuous glass melting
furnace.
N................... 98.146(b)(4).......... All.
N................... 98.146(b)(6).......... All.
O................... 98.156(a)(2).......... All.
O................... 98.156(a)(7).......... All.
O................... 98.156(a)(8).......... All.
O................... 98.156(a)(9).......... All.
O................... 98.156(a)(10)......... All.
O................... 98.156(b)(1).......... All.
O................... 98.156(b)(2).......... All.
O................... 98.156(d)(1).......... All.
O................... 98.156(d)(2).......... All.
O................... 98.156(d)(3).......... All.
O................... 98.156(d)(4).......... All.
O................... 98.156(d)(5).......... All.
O................... 98.156(e)(1).......... All.
P................... 98.166(b)(2).......... All.
P................... 98.166(b)(5).......... All.
P................... 98.166(b)(6).......... All.
Q................... 98.176(b)............. Only annual quantity
taconite pellets, coke,
iron, and raw steel (No
CEMS).
Q................... 98.176(e)(1).......... All.
Q................... 98.176(e)(3).......... All.
Q................... 98.176(e)(4).......... All.
Q................... 98.176(f)(1).......... All.
Q................... 98.176(f)(2).......... All.
Q................... 98.176(f)(3).......... All.
Q................... 98.176(f)(4).......... All.
Q................... 98.176(g)............. All.
R................... 98.186(b)(6).......... All.
R................... 98.186(b)(7).......... All.
S................... 98.196(b)(2).......... All.
S................... 98.196(b)(3).......... All.
S................... 98.196(b)(5).......... All.
S................... 98.196(b)(6).......... All.
S................... 98.196(b)(8).......... All.
S................... 98.196(b)(10)......... All.
S................... 98.196(b)(11)......... All.
S................... 98.196(b)(12)......... All.
U................... 98.216(b)............. All.
U................... 98.216(e)(1).......... All.
U................... 98.216(e)(2).......... All.
U................... 98.216(f)(1).......... All.
U................... 98.216(f)(2).......... All.
V................... 98.226(c)............. All.
V................... 98.226(d)............. All.
V................... 98.226(i)............. All.
V................... 98.226(j)............. All.
V................... 98.226(m)(1).......... All.
V................... 98.226(m)(3).......... All.
V................... 98.226(m)(4).......... All.
V................... 98.226(m)(5).......... All.
V................... 98.226(m)(6).......... All.
V................... 98.226(p)............. All.
X................... 98.246(a)(4).......... Only monthly volume
values, monthly mass
values, monthly carbon
content values, molecular
weights for gaseous
feedstocks, molecular
weights for gaseous
products, and indication
of whether the
alternative method in
Sec. 98.243(c)(4) was
used.
X................... 98.246(b)(5)(iii)..... All.
X................... 98.246(b)(5)(iv)...... All.
Y................... 98.256(e)(6).......... Only molar volume
conversion factor for
each flare.
Y................... 98.256(e)(7).......... Only molar volume
conversion factor for
each flare.
Y................... 98.256(e)(7)(ii)...... All.
Y................... 98.256(e)(9).......... Only annual volume of
flare gas combusted,
annual average higher
heating value of the
flare gas, volume of gas
flared, average molecular
weight, carbon content of
the flare, and molar
volume conversion factor
if using Eq. Y-3.
Y................... 98.256(e)(10)......... Only fraction of carbon in
the flare gas contributed
by methane.
[[Page 81346]]
Y................... 98.256(f)(7).......... Only molar volume
conversion factor.
Y................... 98.256(f)(10)......... Only coke burn-off factor,
annual throughput of
unit, and average carbon
content of coke.
Y................... 98.256(f)(11)......... Only units of measure for
the unit-specific CH4
emission factor, activity
data for calculating
emissions, and unit-
specific emission factor
for CH4.
Y................... 98.256(f)(12)......... Only unit-specific
emission factor for N2O,
units of measure for the
unit-specific N2O
emission factor, and
activity data for
calculating emissions.
Y................... 98.256(f)(13)......... Only average coke burn-off
quantity per cycle or
measurement period, and
average carbon content of
coke.
Y................... 98.256(h)(4).......... All.
Y................... 98.256(h)(5).......... Only value of the
correction, annual volume
of recycled tail gas, and
annual average mole
fraction of carbon in the
tail gas (if used to
calculate recycling
correction factor).
Y................... 98.256(i)(5).......... Only annual mass of green
coke fed, carbon content
of green coke fed, annual
mass of marketable coke
produced, carbon content
of marketable coke
produced, and annual mass
of coke dust removed from
the process.
Y................... 98.256(i)(7).......... Only the unit-specific CH4
emission factor, units of
measure for unit-specific
CH4 emission factor, and
activity data for
calculating emissions.
Y................... 98.256(i)(8).......... Only units of measure for
the unit-specific factor,
activity data used for
calculating emissions,
and site-specific
emissions factor.
Y................... 98.256(j)(2).......... All.
Y................... 98.256(j)(5).......... Only CO2 emission factor.
Y................... 98.256(j)(6).......... Only CH4 emission factor.
Y................... 98.256(j)(7).......... Only carbon emission
factor.
Y................... 98.256(j)(8).......... Only CO2 emission factor
and carbon emission
factor.
Y................... 98.256(j)(9).......... Only CH4 emission factor.
Y................... 98.256(k)(3).......... Only dimensions of coke
drum or vessel, typical
gauge pressure of the
coking drum, typical void
fraction of coke drum or
vessel, annual number of
coke-cutting cycles of
coke drum or vessel, and
molar volume conversion
factor for each coke drum
or vessel.
Y................... 98.256(k)(4).......... Only height and diameter
of the coke drums,
cumulative number of
vessel openings for all
delayed coking drums,
typical venting pressure,
void fraction, mole
fraction of methane in
coking gas.
Y................... 98.256(l)(5).......... Only molar volume
conversion factor.
Y................... 98.256(m)(3).......... Only total quantity of
crude oil plus the
quantity of intermediate
products received from
off-site, CH4 emission
factor used, and molar
volume conversion factor.
Y................... 98.256(n)(3).......... All (if used in Equation Y-
21 to calculate emissions
from equipment leaks).
Y................... 98.256(o)(2)(ii)...... All.
Y................... 98.256(o)(4)(ii)...... All.
Y................... 98.256(o)(4)(iii)..... All.
Y................... 98.256(o)(4)(iv)...... All.
Y................... 98.256(o)(4)(v)....... All.
Y................... 98.256(o)(4)(vi)...... Only tank-specific methane
composition data and gas
generation rate data.
Y................... 98.256(p)(2).......... Only quantity of materials
loaded that have an
equilibrium vapor-phase
concentration of CH4 of
0.5 volume percent or
greater.
Z................... 98.266(f)(5).......... All.
Z................... 98.266(f)(6).......... All.
AA.................. 98.276(b)............. All.
AA.................. 98.276(c)............. Only annual mass of the
spent liquor solids
combusted.
AA.................. 98.276(d)............. All.
AA.................. 98.276(e)............. All.
AA.................. 98.276(f)............. All.
AA.................. 98.276(g)............. All.
AA.................. 98.276(h)............. All.
AA.................. 98.276(i)............. All.
BB.................. 98.286(b)(1).......... All.
BB.................. 98.286(b)(4).......... All.
BB.................. 98.286(b)(6).......... All.
CC.................. 98.296(b)(5).......... Only monthly consumption
of trona or liquid
alkaline feedstock (for
facilities using Equation
CC-1).
CC.................. 98.296(b)(6).......... Only monthly production of
soda ash for each
manufacturing line (for
facilities using Equation
CC-2).
CC.................. 98.296(b)(7).......... All.
CC.................. 98.296(b)(10)(i)...... All.
CC.................. 98.296(b)(10)(ii)..... All.
CC.................. 98.296(b)(10)(iii).... All.
CC.................. 98.296(b)(10)(iv)..... All.
CC.................. 98.296(b)(10)(v)...... All.
CC.................. 98.296(b)(10)(vi)..... All.
CC.................. 98.296(b)(10)(vii).... All.
[[Page 81347]]
EE.................. 98.316(b)(6).......... All.
EE.................. 98.316(b)(9).......... All.
GG.................. 98.336(b)(6).......... All.
GG.................. 98.336(b)(7).......... All.
GG.................. 98.336(b)(10)......... All.
HH.................. 98.346(a)............. Only year in which
landfill first accepted
waste, last year the
landfill accepted waste,
capacity of the landfill,
and waste disposal
quantity for each year of
landfilling.
HH.................. 98.346(b)............. Only quantity of waste
determined using the
methods in Sec.
98.343(a)(3)(i), quantity
of waste determined using
the methods in Sec.
98.343(a)(3)(ii),
population served by the
landfill for each year,
and the value of landfill
capacity (LFC) used in
the calculation.
HH.................. 98.346(c)............. All.
HH.................. 98.346(d)(1).......... Only degradable organic
carbon (DOC) value,
methane correction factor
(MCF) values, and
fraction of DOC
dissimilated (DOCF)
values.
HH.................. 98.346(d)(2).......... All.
HH.................. 98.346(e)............. Only fraction of CH4 in
landfill gas.
HH.................. 98.346(f)............. Only surface area
associated with each
cover type.
HH.................. 98.346(g)............. All.
HH.................. 98.346(i)(5).......... Only annual operating
hours for the primary
destruction device,
annual operating hours
for the backup
destruction device,
destruction efficiency
for the primary
destruction device, and
destruction efficiency
for the backup
destruction device.
HH.................. 98.346(i)(6).......... All.
HH.................. 98.346(i)(7).......... Only surface area
specified in Table HH-3,
estimated gas collection
system efficiency, and
annual operating hours of
the gas collection
system.
HH.................. 98.346(i)(9).......... Only CH4 generation value.
------------------------------------------------------------------------
[FR Doc. 2010-32450 Filed 12-23-10; 8:45 am]
BILLING CODE 6560-50-P