2011-26766. Special Rules Governing Certain Information Obtained Under the Clean Air Act: Technical Correction

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is taking direct final action to correct an erroneous reference in EPA's procedures for handling data required under the Mandatory Greenhouse Gas Reporting Rule, which are provided in the Special Rules Governing Certain Information Obtained Under the Clean Air Act. This correction does not change any requirements for entities regulated under the Mandatory Greenhouse Gas Reporting Rule or the final confidentiality determinations that EPA has made for such data.

DATES:

This rule is effective on December 1, 2011 without further notice, unless the EPA receives adverse comment by November 16, 2011. If we receive adverse comment by this date, we will publish a timely withdrawal notice in the Federal Register to inform the public that this rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2009-0924, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: Environmental Protection Agency, EPA Docket Center (EPA/DC), Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2009-0924, 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-2009-0924. 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 for which disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means that the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to the EPA without going through http://www.regulations.gov,, your e-mail 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. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

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 at http://www.regulations.gov or in hard copy at the Air Docket office, 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 [phone], and the telephone number for the Air Docket is [phone].

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: [phone]; fax number: [phone]; e-mail address: [e-mail]. For technical information and implementation materials, please go to the Web site http://www.epa.gov/​climatechange/​emissions/​ghgrulemaking.html. To submit a question, select Rule Help Center, then select Contact Us.

SUPPLEMENTARY INFORMATION:

Why is EPA using a direct final rule?

The EPA is publishing this rule without a prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. This change simply revises one section of 40 CFR part 2, subpart B, to correct and clarify a reference. This correction does not alter the requirements for entities regulated by the Mandatory Greenhouse Gas Reporting Rule (40 CFR part 98, hereinafter “part 98”), nor does it affect the final confidentiality determinations for part 98 data that EPA has made through rulemaking. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate notice that will serve as the proposed rule for this correction should EPA receive adverse comment on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so by the comment deadline listed in the DATES section of this document. For further information about commenting on this rule, see the ADDRESSES section of this document.

If the EPA receives adverse comment, we will publish a timely withdrawal notice in the Federal Register to inform the public that this direct final rule will not take effect. In that case, we would address all public comments in any subsequent final rule based on the proposed rule.

Submitting CBI. Do not submit CBI to the EPA through http://www.regulations.gov or by e-mail. 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.

Does this action apply to me?

The entities potentially affected by this final rule include those listed in Table 1 of this preamble:

Table 1—Examples of Affected Entities by Category

Category	NAICS	Examples of affected facilities
General Stationary Fuel Combustion Sources		Facilities operating boilers, process heaters, incinerators, turbines, and internal combustion engines:
	211	Extractors of crude petroleum and natural gas.
	321	Manufacturers of lumber and wood products.
	322	Pulp and paper mills.
	325	Chemical manufacturers.
	324	Petroleum refineries, and manufacturers of coal products.
	316, 326, 339	Manufacturers of rubber and miscellaneous plastic products.
	331	Steel works, blast furnaces.
	332	Electroplating, plating, polishing, anodizing, and coloring.
	336	Manufacturers of motor vehicle parts and accessories.
	221	Electric, gas, and sanitary services.
	622	Health services.
	611	Educational services.
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.
Electronics Manufacturing	334111	Microcomputers manufacturing facilities.
	334413	Semiconductor, photovoltaic (solid-state) device manufacturing facilities.
	334419	LCD unit screens manufacturing facilities.
		MEMS manufacturing facilities.
Ferroalloy Production	331112	Ferroalloys manufacturing facilities.
Fluorinated Gas Production	325120	Industrial gases 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 Manufacturing	327410	Calcium oxide, calcium hydroxide, dolomitic hydrates manufacturing facilities.
Magnesium Production	331419	Primary refiners of nonferrous metals by electrolytic methods.
	331492	Secondary magnesium processing plants.
Nitric Acid Production	325311	Nitric acid manufacturing facilities.
Petroleum and Natural Gas Systems	486210	Pipeline transportation of natural gas.
	221210	Natural gas distribution facilities.
	211	Extractors of crude petroleum and natural gas.
	211112	Natural gas liquid extraction 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.
Electrical Transmission and Distribution Equipment Use	221121	Electric bulk power transmission and control facilities.
Titanium Dioxide Production	325188	Titanium dioxide manufacturing facilities.
Underground Coal Mines	212113	Underground anthracite coal mining operations.
	212112	Underground bituminous coal mining operations.
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.
Industrial Wastewater Treatment	322110	Pulp mills.
	322121	Paper mills.
	322122	Newsprint mills.
	322130	Paperboard mills.
	311611	Meat processing facilities.
	311411	Frozen fruit, juice, and vegetable manufacturing facilities.
	311421	Fruit and vegetable canning facilities.
	325193	Ethanol manufacturing facilities.
Suppliers of Coal Based Liquids Fuels	211111	Coal liquefaction at mine sites.
Suppliers of Petroleum Products	324110	Petroleum refineries.
Suppliers of Natural Gas and NGLs	221210	Natural gas distribution facilities.
	211112	Natural gas liquid extraction facilities.
Suppliers of Industrial Greenhouse Gases	325120	Industrial gas manufacturing facilities.
Suppliers of Carbon Dioxide (CO2)	325120	Industrial gas manufacturing facilities.
Importers and Exporters of Fluorinated Greenhouse Gases in Pre-charged Equipment or Closed-Cell Foams	423730	Air-conditioning equipment (except room units) merchant wholesalers.
	333415	Air-conditioning equipment (except motor vehicle) manufacturing.
	336391	Motor vehicle air-conditioning manufacturing.
	423620	Air-conditioners, room, merchant wholesalers.
	443111	Household appliance stores.
	423730	Automotive air-conditioners merchant wholesalers.
	326150	Polyurethane foam products manufacturing.
	335313	Circuit breakers, power, manufacturing.
	423610	Circuit breakers merchant wholesalers.
Geologic Sequestration of Carbon Dioxide	N/A	CO2 geologic sequestration projects.
Electrical Equipment Manufacture or Refurbishment	33531	Power transmission and distribution switchgear and specialty transformers manufacturing facilities.
Industrial Waste Landfills	562212	Solid waste landfills.
	221320	Sewage treatment facilities.
	322110	Pulp mills.
	322121	Paper mills.
	322122	Newsprint mills.
	322130	Paperboard mills.
	311611	Meat processing facilities.
	311411	Frozen fruit, juice, and vegetable manufacturing facilities.
	311421	Fruit and vegetable canning facilities.
Injection of Carbon Dioxide	211	Oil and gas extraction projects using CO2 enhanced oil and gas recovery.
	211111 or 211112	Projects that inject acid gas containing CO2 underground.

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 and 40 CFR part 98. Table 1 of this preamble lists the types of facilities that the EPA is now aware could be affected by this action. Other types of facilities not listed in the table could also be affected. To determine whether your facility is affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98, subpart A, and other subparts as necessary. 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.

Table of Contents

I. Background of Final Rule

II. What is the technical correction to 40 CFR 2.301(d)?

III. 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

K. Congressional Review Act

I. Background of Final Rule

On May 26, 2011, the EPA published the Final Confidentiality Determinations for Data Required Under the Mandatory Greenhouse Gas Reporting Rule and Amendments to Special Rules Governing Certain Information Obtained Under the Clean Air Act (76 FR 30782). In that final rule, pursuant to CAA section 114(c), the EPA made confidentiality determinations for certain data elements in part 98. The EPA made these determinations through rulemaking pursuant to CAA section 307(d). (See 76 FR 30782: “The Administrator determined that this action is subject to the provisions of the Clean Air Act (CAA) section 307(d).”)

In addition, in the same notice, the EPA amended 40 CFR 2.301 by adding a new subsection 2.301(d) that establishes specific procedures for the EPA's handling of data collected under part 98 in accordance with the EPA's final confidentiality determinations for the data. (See 76 FR 30782, 30784, 30815 (May 26, 2011); see also 75 FR 39094, 39098, 39102-03 (July 7, 2010).) Subsection 2.301(d) authorizes the EPA to release or withhold as confidential data collected under part 98 based on confidentiality determinations EPA makes through rulemaking without taking further procedural steps.

II. What is the technical correction to 40 CFR 2.301(d)?

This direct final rule corrects a minor technical error in 40 CFR 2.301(d). Specifically, paragraph (d) erroneously cites the Administrative Procedure Act (hereinafter referred to as “APA”), 5 U.S.C. 553(c), instead of CAA section 307(d), as the authority under which confidentiality determinations for part 98 data are made. This action corrects the erroneous reference.^[1]

It is clear from the preambles to both the proposed and final confidentiality determinations rule and the accompanying amendment to 40 CFR 2.301 that the procedures established under 40 CFR 2.301(d) relate to confidentiality determinations made in that rule, which were made under CAA sections 114(c) and 307(d). The public comments on that rulemaking also indicated this understanding (see, e.g., comment EPA-HQ-OAR-2009-0924-0064.1, comment excerpt 6). However, 40 CFR 2.301(d) inadvertently cites 5 U.S.C. 553(c) instead of CAA 307(d) in its reference to the final confidentiality determination rule. While there appears to be no confusion due to this error, EPA believes that we should make this correction to avoid any potential for confusion in the future.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory 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 Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

The correction to 40 CFR part 2 does not impose any information collection burden.

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 impacts of the amendments 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 today's correction to the citation in 40 CFR part 2 on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This rule will not impose any new requirement on small entities that are not currently required by part 98. The amendments to 40 CFR part 2 are administrative in nature. Therefore, this rule does not have a significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act (UMRA)

This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The correction in this final rule revises a citation reference in one section of 40 CFR part 2, subpart B to confirm the original intention of the reference by correcting the citation to statutory authority.

E. Executive Order 13132: Federalism

This change to 40 CFR part 2 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 part 98 rule (74 FR 56266).

The correction to 40 CFR part 2 is administrative in nature and applies to data reported under Part 98 by facilities that directly emit GHGs or supply fuel or chemicals that may emit GHGs when used. Part 98 does not apply to governmental entities unless the government entity owns a facility that directly emit GHGs above threshold levels such as large stationary combustion sources or landfills, so relatively few government facilities would be affected. The change to 40 CFR part 2 also does not limit the power of states or local governments to collect GHG data or regulate GHG emissions. Thus, Executive Order 13132 does not apply to this correction.

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

This action is not expected to have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because this action is administrative in nature and does not impose any new requirements on Tribes. Thus, Executive Order 13175 does not apply to this action.

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 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 a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The amendments to 40 CFR part 2 are administrative in nature and therefore do not have any adverse impacts on energy supply, distribution, or use.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (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. NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This change to 40 CFR part 2 is administrative in nature and does not involve technical standards. Therefore, the EPA did not consider 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 the direct final action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because the correction noted does not affect the level of protection provided to human health or the environment. The change to 40 CFR part 2 is administrative in nature and therefore does not affect the level of protection provided to human health or the environment.

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. The 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 U.S. prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective December 1, 2011.

List of Subjects in 40 CFR Part 2

• Environmental protection
• Administrative practice and procedure
• Reporting and recordkeeping requirements

Dated: October 11, 2011.

Lisa P. Jackson,

Administrator.

For the reasons stated in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows:

PART 2—[AMENDED]

1. The authority citation for part 2 continues to read as follows:

Authority: 5 U.S.C. 301, 552 (as amended), 553; sec. 114, Clean Air Act (as amended) (42 U.S.C. 7414).

Subpart B—[Amended]

§ 2.301

[Amended]

2. Section 2.301 is amended by:

a. In paragraph (d)(1) introductory text, revising the phrase “pursuant to section 114(c) of the Clean Air Act and 5 U.S.C. 553(c)” to read “pursuant to sections 114(c) and 307(d) of the Clean Air Act”.

b. In the first sentence of paragraph (d)(2), revising the phrase “pursuant to section 114(c) of the Clean Air Act and 5 U.S.C. 553(c)” to read “pursuant to sections 114(c) and 307(d) of the Clean Air Act”.

c. In the first sentence of paragraph (d)(3), revising the phrase “pursuant to section 114(c) of the Clean Air Act and 5 U.S.C. 553(c)” to read “pursuant to sections 114(c) and 307(d) of the Clean Air Act”.

d. In the second sentence of paragraph (d)(4) introductory text, revising the phrase “pursuant to section 114(c) of the Clean Air Act and 5 U.S.C. 553(c)” to read “pursuant to sections 114(c) and 307(d) of the Clean Air Act”.

e. In paragraph (d)(4)(i), revising the phrase “pursuant to section 114(c) of the Clean Air Act and 5 U.S.C. 553(c)” to read “pursuant to sections 114(c) and 307(d) of the Clean Air Act”.

Footnotes

1.  Paragraph (d) also references CAA section 307(d), which is correct.