
[Federal Register Volume 88, Number 201 (Thursday, October 19, 2023)]
[Proposed Rules]
[Pages 72027-72038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22182]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2022-0707; FRL-9603-01-OAR]
RIN 2060-AV65


Protection of Stratospheric Ozone: Updates Related to the Use of 
Ozone-Depleting Substances as Process Agents

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This action proposes to establish recordkeeping and reporting 
requirements for uses of ozone-depleting substances as process agents 
and to update definitions to reflect current practice. Codified 
recordkeeping and reporting requirements would provide clear and 
consistent notice each year of information EPA collects, aggregates, 
and reports as a party to the Montreal Protocol on Substances that 
Deplete the Ozone Layer; effectively monitor these narrow uses in a 
more routine and consistent manner under the Clean Air Act; and enhance 
understanding of emissions of substances harmful to the ozone layer.

DATES: Comments on this notice of proposed rulemaking must be received 
on or before December 4, 2023. Under the Paperwork Reduction Act (PRA), 
comments on the proposed information collection provisions are best 
assured of consideration if the Office of Management and Budget (OMB) 
receives a copy of your comments on or before November 20, 2023. Any 
party requesting a public hearing must notify the contact listed below 
under FOR FURTHER INFORMATION CONTACT by 5 p.m. Eastern Time on October 
24, 2023. If a public hearing is held, it will take place on or before 
November 3, 2023 and further information will be provided at https://www.epa.gov/ods-phaseout.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2022-0707, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Air and Radiation Docket, Mail Code 28221T, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov, including any personal information 
provided. For further information on EPA Docket Center services and the 
current status, please visit us online at https://www.epa.gov/dockets.
    You may find the following suggestions helpful for preparing your 
comments: direct your comments to specific sections of this proposed 
rulemaking and note where your comments may apply to future separate 
actions where possible; explain your views as clearly as possible; 
describe any assumptions that you used; provide any technical 
information or data you used that support your views; provide specific 
examples to illustrate your concerns; offer alternatives; and, make 
sure to submit your comments by the comment period deadline. Please 
provide any published studies or raw data supporting your position. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (e.g., on the web, cloud, or other file sharing 
system).
    EPA recognizes that given the nature of this proposed rulemaking, 
potentially affected entities may wish to submit Confidential Business 
Information (CBI) or other confidential information. CBI should not be 
submitted through https://www.regulations.gov. For submission of 
confidential comments or data, please work with the person listed in 
the FOR FURTHER INFORMATION CONTACT section. For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions,

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and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: John Feather, U.S. Environmental 
Protection Agency, Stratospheric Protection Division, telephone number: 
202-564-1230; or email address: [email protected]. You may also 
visit EPA's website at https://www.epa.gov/ozone-layer-protection for 
further information.

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' ``the Agency,'' or ``our'' is used, we mean EPA. Acronyms that 
are used in this rulemaking that may be helpful include:

ASME--American Society of Mechanical Engineers
CAA--Clean Air Act
CBI--confidential business information
CFC--chlorofluorocarbon
EPA--U.S. Environmental Protection Agency
FOIA--Freedom of Information Act
GHGRP--Greenhouse Gas Reporting Program
HCFC--hydrochlorofluorocarbon
ICR--Information Collection Request
NAICS--North American Industry Classification System
NARA--National Archives and Records Administration
ODP--ozone depletion potential
ODS--ozone-depleting substances
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act
SISNOSE--Significant Economic Impact on a Substantial Number of 
Small Entities
TRI--Toxics Release Inventory
UMRA--Unfunded Mandates Reform Act

Table of Contents

I. General Information
    A. Does this proposed action apply to me?
    B. What action is the Agency proposing?
    C. What is EPA's regulatory authority for this proposed action?
II. Background
    A. EPA's Phaseout of ODS
    B. ODS Used as Process Agents
    C. EPA's Treatment of ODS Process Agents
III. Proposed Recordkeeping and Reporting Requirements
    A. One-Time Report
    B. Annual Report and Significant Process Changes
    C. Recordkeeping
IV. How does EPA propose to treat ODS process agent data collected 
under this action?
    A. Background on Determinations of Whether Information Is 
Entitled to Treatment as Confidential Information
    B. Data Elements Proposed To Be Reported to EPA Under This 
Action
V. Proposed Definitions
VI. Costs and Benefits
VII. Statutory and Executive Order Review
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 14094: Modernizing Regulatory Review
    B. Paperwork Reduction Act (PRA)
    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 (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations and Executive Order 14096: Revitalizing Our Nation's 
Commitment to Environmental Justice for All

I. General Information

A. Does this proposed action apply to me?

    You may be potentially affected by this proposal if you use ozone-
depleting substances \1\ (ODS) as process agents. Potentially affected 
categories, North American Industry Classification System (NAICS) 
codes, and examples of potentially affected entities include Industrial 
Gas Manufacturing (NAICS code 325120), Other Basic Inorganic Chemical 
Manufacturing (NAICS code 325180), and All Other Basic Organic Chemical 
Manufacturing (NAICS code 325199).
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    \1\ For the purposes of this preamble, EPA uses ``ozone-
depleting substance'' and ``controlled substance'' interchangeably. 
Both terms are intended to have the same meaning as ``controlled 
substance'' as defined in 40 CFR 82.3.
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    This list is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this section could also 
be affected. If you have any questions regarding the applicability of 
this action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

B. What action is the Agency proposing?

    This action is narrow in scope and proposes to codify recordkeeping 
and reporting requirements for a limited number of chemical 
manufacturing facilities and to make minor revisions to definitions 
under 40 CFR part 82. EPA annually collects process agent consumption 
and emissions information. The Agency is proposing to codify reporting 
requirements to collect this information, including a methodology to 
calculate emissions. EPA also proposes to add a definition of ``process 
agent'' and to revise definitions of ``plant'' and ``facility'' to 
better reflect current practice.
    Included in the docket is a description of the procedures EPA is 
seeking comment on to implement the proposed emission reporting 
requirements (see the memorandum titled Proposed Procedures for ODS 
Process Agent Emission Reporting (EPA-HQ-OAR-2022-0707)). The remaining 
regulatory changes proposed in this action are included in this 
document.

C. What is EPA's authority for this proposed action?

    Several sections of the Clean Air Act (CAA) provide authority for 
this proposed action. In particular, section 603 provides authority to 
establish monitoring and reporting requirements for controlled 
substances. EPA also relies on its authority under section 114 of the 
CAA, which authorizes the EPA Administrator to establish recordkeeping 
and reporting requirements in carrying out any provision of the CAA 
(with certain exceptions that do not apply here). Section 604 and 605 
provide the authority to phase out the production and consumption of 
class I and II substances, to restrict the use of class I and II 
controlled substances, and to promulgate regulations associated with 
the production of class I and II substances. EPA's regulations 
implementing the production and consumption controls for class I and II 
substances, including provisions implementing exceptions to those 
controls, can be found at 40 CFR part 82, subpart A. Additional 
authority for electronic reporting, as required under provisions in 40 
CFR 82.13(c) and 40 CFR 82.24(a)(1) comes from the Government Paperwork 
Elimination Act (44 U.S.C. 3504), which provides ``(1) for the option 
of the electronic maintenance, submission, or disclosure of 
information, when practicable as a substitute for paper; and (2) for 
the use and acceptance of electronic signatures, when practicable.''

II. Background

A. EPA's Phaseout of ODS

    In 1987, the United States joined 23 other countries and the 
European Union to sign the Montreal Protocol on Substances that Deplete 
the Ozone Layer (Montreal Protocol) and the United States ratified the 
Montreal Protocol on April 21, 1988. This international treaty protects 
and restores the ozone layer by phasing out the production and 
consumption of certain ODS including chlorofluorocarbons (CFCs), 
halons, methyl bromide, and hydrochlorofluorocarbons (HCFCs). The

[[Page 72029]]

Protocol, which has been joined by all countries of the United Nations, 
and its parent treaty, the Vienna Convention for the Protection of the 
Ozone Layer, are the first international treaties to ever achieve this 
distinction. The Clean Air Act Amendments of 1990 (CAA or the Act) 
added Title VI on Stratospheric Ozone Protection. Under the CAA and 
EPA's regulations at 40 CFR part 82, controls are in place that 
restrict the production and consumption of ODS to implement the 
phaseout of these substances. Title VI establishes two classes of 
controlled ODS: class I and class II control substances. Class I 
controlled substances, i.e., CFCs, halons, carbon tetrachloride, methyl 
chloroform, methyl bromide, and hydrobromofluorocarbons, have a higher 
ozone depletion potential (ODP) and were phased out ahead of class II 
controlled substances. Class II controlled substances consist only of 
HCFCs that have lower ODPs than class I substances, and in many cases 
acted as transitional substitutes for many class I substances. While 
existing regulations allow for limited production and consumption of 
two HCFCs (HCFC-123 and HCFC-124) until 2030, all others have been 
phased out in the United States. For both class I and class II ODS, 
there are limited exceptions, such as the exclusion from the definition 
of ``production'' in 40 CFR 84.3 for controlled substances that are 
either manufactured and subsequently transformed, i.e., for feedstock 
uses,\2\ or destroyed by approved destruction technologies.\3\
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    \2\ EPA considers terms related to ``transformation'' and 
``feedstock uses'' to be interchangeable for the purposes of this 
proposal.
    \3\ Approved destruction technologies are listed at 40 CFR 82.3 
``Destruction.''
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B. ODS Used as Process Agents

    Process agents are generally understood to be used to create an 
environment for another process to occur, without themselves being 
transformed or destroyed during said process. The process agent is not 
consumed in the reaction, though trace quantities of the process agent 
may remain in the final product. For the purposes of this rulemaking, 
EPA uses the terms ``controlled substance used as a process agent'', 
``ODS process agent'', and ``process agent'' interchangeably. The 
Agency also uses the term ``consumed'' in this context to mean ``used 
up'' or transformed.
    Process agents may be reused or recycled or may subsequently be 
used in transformation reactions or destroyed. While process agents are 
generally reused or recycled, additional process agents may need to be 
introduced to replenish losses due to transformation, destruction, 
emission, or being present in trace quantities in the chemical 
substance being manufactured. Emissions can be reduced through limiting 
process agent losses (e.g., mitigate fugitive emissions or capture 
process agents for further use or destruction) and by directly abating 
process agent emissions. Technology resulting in zero-emission uses of 
process agents have increasingly been adopted over time as well.\4\
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    \4\ United Nations Environment Programme, Medical and Chemicals 
Technical Options Committee, 2022 Assessment Report. https://ozone.unep.org/system/files/documents/MCTOC-Assessment-Report-2022.pdf.
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C. EPA's Treatment of ODS Process Agents

    On August 4, 1998, EPA proposed certification requirements for 
class I controlled substances to be used as process agents (63 FR 
41652). The Agency also proposed to interpret the definition of 
controlled substances in 40 CFR 82.3, to mean that ``production of 
controlled substances for use as a process agent is not included in the 
definition of controlled substances in the regulation.'' While EPA 
decided not to finalize the proposed certification requirements or 
interpretation that ODS used as process agents are not controlled 
substances, on July 18, 2003, EPA published a rule (68 FR 42883) which 
discussed that the Agency had determined a use of a class I controlled 
substance as a process agent to be exempt from restrictions on 
controlled substances. EPA recognizes that there are some legacy uses 
of ODS as process agents, in particular where substitutes or 
alternative processes may not be viable yet, and the Agency has 
continued to annually request, collect, and review information on these 
process agent uses. This is in line with decisions under the Montreal 
Protocol to allow the continued use of ODS as process agents under 
specified situations. The parties to the Montreal Protocol agreed in 
decision X/14 to except quantities of ODS produced or imported for use 
as process agents from the general requirements to phase out production 
and consumption of controlled ODS.\5\ EPA prepares information derived 
from submissions to the Agency on process agent uses in the United 
States and submits this information to the Montreal Protocol's Ozone 
Secretariat on behalf of the United States, consistent with decisions 
taken by the parties to the Montreal Protocol.
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    \5\ https://ozone.unep.org/treaties/montreal-protocol/meetings/tenth-meeting-parties/decisions/decision-x14-process-agents.
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III. Proposed Recordkeeping and Reporting Requirements

    EPA proposes in this section to require one-time, annual, and 
situational reporting from entities that use ODS as process agents, add 
associated recordkeeping requirements, and determine how to treat the 
collected data. These requirements would ensure an initial 
understanding of the process agent uses, support efforts to monitor 
changes that occur over time, enable the Agency to anticipate future 
changes, and allow EPA to confirm relevant records as appropriate. 
Codified recordkeeping and reporting requirements would provide clear 
and consistent notice each year of the information EPA would collect in 
order to report information consistent with decisions taken by the 
parties to the Montreal Protocol. These requirements would also provide 
additional clarity to industry concerning how to treat and report ODS 
process agent uses. The Agency is proposing these reporting 
requirements for both class I and class II controlled substances that 
may be used as process agents. Consistent with existing requirements in 
40 CFR 82.13(c) for class I controlled substances and 40 CFR 
82.24(a)(1) for class II controlled substances for reports available 
for submission, these reports would be submitted electronically through 
the Central Data Exchange or, as proposed in this action, another 
format specified by EPA.
    It is EPA's understanding that uses in the United States of ODS as 
process agents are primarily for purposes of maintaining legacy 
production processes at existing facilities which cannot feasibly 
transition to processes that do not use ODS as process agents. The 
United States is one of a few countries that continue to report use of 
controlled substances as process agents. The additional recordkeeping 
and reporting requirements proposed in this action also would support 
EPA's efforts to assess use of controlled substances as process agents, 
prepare and report associated information supporting continued need for 
excepted uses where appropriate, and ensure there is clarity and 
consistency in reporting on emissions of ODS used as process agents.
    Requiring this reporting will allow EPA to effectively monitor 
these narrow process agent uses in a more routine and consistent manner 
under CAA section 603, and ensure the Agency is accurately documenting 
production and consumption of class I and II controlled

[[Page 72030]]

substances consistent with the limits established under CAA sections 
604 and 605.

A. One-Time Report

    EPA proposes that any facility that uses a controlled substance as 
a process agent must submit a one-time report within 120 days of 
publication of the final rule, or within 120 days of the date that a 
facility first uses a controlled substance as a process agent, 
whichever is later. These one-time reports would be required regardless 
of whether an entity has provided this information to EPA previously. 
We propose that this one-time report include information concerning the 
process agent being used; a mass balance describing where, how, and how 
much of the controlled substance is used and emitted; if relevant, 
where, how, and how much of the controlled substance is transformed, 
destroyed, or otherwise captured; data on how much controlled substance 
was used in the last year and what it was used to produce (e.g., 
another chemical or product); air emissions from stack point sources, 
fugitive sources, and total air emissions; actions taken or under 
evaluation to phase out use of ODS as a process agent (e.g., by 
transitioning to a non-ozone depleting alternative); actions taken or 
under evaluation to minimize process agent use or emissions; and the 
location of the facility using the process agent. Such information 
would establish a baseline set of information from which EPA can 
monitor potential changes over time.
    For total, fugitive, and stack point air emissions, EPA is 
proposing to require that entities using controlled substances as 
process agents report emissions using a methodology similar to the 
emissions reporting requirements found at 40 CFR part 98, subpart L (40 
CFR 98.120 through 98.128). EPA is proposing that acceptable testing 
methods for measuring process vent emissions of controlled substances 
would include EPA Method 18 in appendix A-1 to 40 CFR part 60, EPA 
Method 320 in appendix A to 40 CFR part 63, EPA 430-R-10-003, ASTM 
D6348-03 (Reapproved 2020), or other analytical methods validated using 
EPA Method 301 at 40 CFR part 63, appendix A. The regulations at 40 CFR 
part 98, subpart L, include ``some other scientifically sound 
validation protocol'' as an acceptable alternative method to measure 
emissions, but EPA is not proposing to include that in the regulations 
created through this rulemaking due to potential lack of consistency in 
reporting emissions in the limited set of remaining process agent 
applications. However, EPA Method 301 provides a process to validate 
and approve other analytical methods as appropriate. The Agency expects 
that the approaches to determining fluorinated GHG emissions from 
process vents (continuous or batch) and equipment leaks for fluorinated 
gas production would also be applicable to the process agent 
applications and their associated industry sectors.\6\ EPA is proposing 
that the units of measure for determining emissions and the method to 
calculate emissions would be in kilograms of controlled substance 
emitted. EPA has included a memo describing these proposed emission 
reporting procedures in the docket for this rulemaking.
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    \6\ Uses of controlled substances as process agents in the 
United States include elimination of nitrogen trichloride in chlor-
alkali production, recovery of chlorine by tail gas absorption from 
chlor-alkali production, production of synthetic fiber sheet, 
bromination of a styrenic polymer, and production of high modulus 
polyethylene fiber, among others globally.
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    EPA requests comment on whether there are distinctions between 
controlled substance emissions, process agent applications, or industry 
sectors that would require specific adjustments from the proposed 
generally applicable requirements, and if so, what those adjustments 
may be. The Agency also requests comment on whether there are potential 
gaps in the proposed approaches to determining emissions from process 
agent applications and whether alternative approaches, such as a mass 
balance method as described in appendix A to 40 CFR part 98, subpart L, 
may be suitable in those particular cases. EPA also requests comment on 
the advantages and disadvantages of specifying one testing method 
instead of several options (e.g., EPA Method 18 as the analytical 
method and EPA Method 21 monitoring procedures for leak detection). EPA 
seeks comment on whether finalizing the use of one method, instead of 
multiple methods, would improve the consistency of emissions data 
reported across the facilities using ODS as process agents.
    EPA considered whether to require that entities report emissions 
information consistent with the approach used by the Toxics Release 
Inventory (TRI) at 40 CFR part 372, but is proposing to use an approach 
similar to the Greenhouse Gas Reporting Program (GHGRP)'s 40 CFR part 
98, subpart L, instead. Under 40 CFR 372.85(b)(14)(i), these 
requirements include an estimate of total releases of: (1) Fugitive or 
non-point air emissions, (2) stack or point air emissions, (3) 
discharges to receiving streams or water bodies including an indication 
of the percent of releases due to stormwater, (4) underground injection 
on site, and (5) releases to land on site. Based on a review of 
available data, we expect all facilities that would be subject to this 
rule already report this information annually or that this information 
would be reasonably available. TRI emissions data are aggregated by 
chemical across an entire facility; therefore, these data do not by 
themselves allow EPA to determine particular product or production-line 
contributions. For example, currently available TRI data would not 
differentiate between process agent emissions from use in a process 
agent application and emissions from production or transformation of 
that same ODS or other unrelated processes at the same facility. The 
list of chemicals reported under TRI also does not include all ODS. 
Notably, at least one of the ODS process agents used in the United 
States, bromochloromethane, is not reported under TRI. A requirement 
that entities specifically report process agent emissions consistent 
with the approach used by TRI would be intended to ensure that EPA can 
fully account for the emissions of all process agents attributable to 
all process agent applications from each subject facility and 
distinguish those emissions from ODS emissions associated with other 
uses.
    However, the Agency has concerns with applying the general TRI 
reporting requirements to this limited set of ODS process agent 
pollutants, industry sectors, and types of operations for the purposes 
of this action. The TRI requirements are designed to apply to a wide 
variety of pollutants and sectors and require facilities to report 
emissions using their best available information, although the source 
of such information or any calculations are not prescribed. TRI 
requires facilities to report and record information concerning 
emissions and the basis of estimate used. For example, to estimate 
emissions an entity may use engineering judgment or emissions factors, 
depending on that facility's available information. The facility 
reports the quantity of emissions and the basis of the estimate used 
(e.g., published emissions factor, mass balance calculation) and 
maintains documentation of supporting calculations. However, the 
facility does not report which emissions factor was used. The potential 
for varying emission estimation methodologies between reporting 
entities complicates the Agency's ability to assess and ensure data 
quality for these particular process agent applications. While some may

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argue using the TRI approach is less burdensome given nearly all ODS 
process agent users are reporting under TRI already, EPA is concerned 
these requirements would not provide the consistency and validation 
necessary for the Agency's needs in preparing and reporting information 
to the Ozone Secretariat consistent with the decisions the parties have 
taken. It also makes it difficult to compare emission rates across 
facilities.
    In contrast, 40 CFR part 98, subpart L, prescribes specific 
methodologies for estimating vent-specific emissions and includes 
associated recordkeeping and reporting requirements that would support 
EPA's efforts to validate the reported information. For example, each 
process vent with significant emissions must use the process-vent-
specific emission factor method, which requires emission tests with 
process activity parameters measured for either each operating scenario 
or the operating scenario with the largest overall emissions. All 
emissions test data and procedures used in developing emission factors 
must be documented. Process vents with less emissions may use the 
process-vent-specific emission calculation factor method, which 
prescribes certain procedures to calculate emissions for each operating 
scenario but does not require testing. All data, assumptions, and 
procedures used in the calculations or engineering assessment must be 
documented. In both cases the reported information follows specified 
methodologies and EPA may assess detailed recorded information if there 
are questions or concerns about the reported data. For these reasons, 
EPA sees the proposed approach in this rule as better suited for 
monitoring process agent emissions.
    EPA requests comment on this assessment. In particular, EPA 
requests comment on why it would be appropriate to apply the TRI 
reporting requirements to the narrow set of process agent pollutants, 
industry sectors, and types of operations and on how EPA may ensure a 
complete and consistent set of reports and record. The Agency also 
requests comment on whether there are advantages or disadvantages of 
such requirements as compared to a methodology similar to those found 
at 40 CFR part 98, subpart L, and what those may be. EPA also requests 
comment on potential challenges in implementing these emissions 
estimates for emissions of ODS from process agent applications.

B. Annual Report and Significant Process Changes

    As part of a continuing effort to monitor potential changes over 
time, EPA proposes to require that each entity with a facility that 
uses a controlled substance as a process agent must submit for each 
applicable facility an annual report by February 14 of each year 
concerning process agent uses for the previous calendar year (i.e., 
January 1 through December 31). This date coincides with the existing 
fourth quarter and annual deadlines for existing ODS reporting 
requirements, including all quarterly importer and producer reports and 
the annual reports under 40 CFR 82.13(m) for second party 
transformation and destruction of class I controlled substances. If 
there are facilities that employ more than one process agent use, the 
facility would need to report data individually for each process that 
uses an ODS process agent. We propose that these annual reports include 
information concerning process agent sourcing, amounts reused, 
recycled, transformed. and destroyed, and inventory over the previous 
calendar year; air emissions from stack point sources, fugitive 
sources, and total air emissions; and a description of emission 
reduction actions currently in use, planned, or currently under 
evaluation since the last one-time or annual report. This information 
will help enable the Agency to develop an annual report regarding uses 
of process agents in the United States and to effectively monitor 
production and consumption of ODS used for process agents consistent 
with domestic requirements.
    EPA also proposes to require that each facility with a significant 
process change, including an increase in the quantity of the final 
output manufactured using an ODS process agent, submit a report 
specifying changes at least 180 days prior to implementing the change. 
We propose that this prior notification requirement apply to any 
process changes anticipated to result in increases by the next annual 
report of greater than 20 percent of the amount of controlled substance 
initially introduced for or emitted during use as a process agent by a 
facility, as compared to the corresponding data in the previous 
calendar year. EPA understands that facility operations change over 
time, and the Agency can monitor such changes through the annual 
reporting mechanism. However, there is potential for significant 
changes in facility operations over a short period which can have 
significant impacts on the environment, conformance with domestic 
regulatory requirements, and our commitment to international 
agreements. Annual reports represent a delayed view into past actions 
and may not provide sufficient lead time for an appropriate response. 
This notification requirement would provide EPA the opportunity to 
assess potential implications in advance of a change at the facility.

C. Recordkeeping

    As described below in this section, entities are obligated under 
existing requirements to record information in accordance with 40 CFR 
82.13 and 82.24, including information concerning ODS used as process 
agents. In this action EPA proposes to add recordkeeping requirements 
specifically for uses of ODS as process agents. Under 40 CFR 82.13(d), 
entities must retain the records and copies of reports required for at 
least three years. The Agency currently requires in 40 CFR 82.13 and 
82.24 that entities, including producers and importers, record 
information that applies to controlled substances in general, including 
those used as process agents, but the current regulations do not 
require that controlled substances intended for process agent use be 
differentiated from the wider uses. Similar to how EPA requires 
differentiating recordkeeping requirements in 40 CFR 82.13 and 82.24 by 
whether the controlled substances were intended for use in processes 
resulting in their transformation or destruction, EPA proposes to also 
require that entities using process agents record information that 
documents what would be reported to the Agency, which includes 
information concerning sourcing, production, and reuse, recycling, 
transformation, and destruction for ODS intended to be used for process 
agent applications.
    Specifically, the Agency is proposing to add requirements that 
companies that use process agents maintain: dated records of the 
quantity of each process agent produced at each facility; records 
identifying the producer or importer of process agents received; copies 
of invoices or receipts documenting the sale or other transfer of 
ownership of process agents; dated records identifying the quantity of 
each product manufactured within each facility by using process agents; 
dated records of the quantity of process agent spills or releases 
greater than or equal to 100 pounds; dated records of information used 
to calculate emissions; dated records of the quantity of process agents 
which are subsequently transformed or destroyed; and a copy of the

[[Page 72032]]

transformation or destruction verification in the case that a process 
agent is subsequently sold or distributed to another entity for 
transformation or destruction. This additional information would 
provide further distinctions of information already required to be 
recorded.

IV. How does EPA propose to treat ODS process agent data collected 
under this action?

    EPA has reviewed the data elements that are proposed to be reported 
under this rule. This proposal identifies certain information 
categories that must be submitted to the Agency that will be subject to 
disclosure to the public without further notice because the information 
has been determined to be either ``emission data'' under 40 CFR 
2.301(a), or EPA has found that the information does not meet the 
standard for confidential treatment under Exemption 4 of the Freedom of 
Information Act (FOIA). The Agency is also proposing to identify 
certain other categories of information that may be entitled to 
confidential treatment. For information not addressed in this 
rulemaking, the Agency will apply the 40 CFR part 2 process for 
establishing case-by-case confidentiality determinations. The emission 
data and confidentiality determinations in this proposed action are 
intended to encourage consistency, compliance with EPA's general ODS 
phaseout, and to meet the United States' reporting commitments under 
the Montreal Protocol. Establishing these determinations through this 
rulemaking will provide predictability for both information requesters 
and submitters.

A. Background on Determinations of Whether Information Is Entitled to 
Treatment as Confidential Information

1. Confidential Treatment of Reported Information
    Regulated entities that must submit information to EPA frequently 
claim that some or all of that information is entitled to confidential 
treatment and therefore exempt from disclosure under Exemption 4 of the 
FOIA. Exemption 4 exempts from disclosure ``trade secrets and 
commercial or financial information obtained from a person [that is] 
privileged or confidential.'' In order for information to meet the 
requirements of Exemption 4, EPA must find that the information is 
either: (1) A trade secret, or (2) commercial or financial information 
that is: (a) obtained from a person, and (b) privileged or 
confidential.
    Generally, when EPA has information that the Agency intends to 
disclose publicly that is covered by a claim of confidentiality under 
FOIA Exemption 4, EPA has a process to make case-by-case or class 
determinations under 40 CFR part 2 to evaluate whether such information 
qualifies for confidential treatment under the exemption. In this 
action, EPA is proposing to make categorical emission data and 
confidentiality determinations in advance through this notice and 
comment rulemaking for some information that would be submitted to EPA 
under the proposed requirements. If EPA finalizes these determinations, 
that information would be subject to disclosure to the public without 
further notice.
    The U.S. Supreme Court decision in Food Marketing Institute v. 
Argus Leader Media, 139 S. Ct. 2356 (2019) (Argus Leader) addresses the 
meaning of ``confidential'' within the context of FOIA Exemption 4. The 
Court held that ``[a]t least where commercial or financial information 
is both customarily and actually treated as private by its owner and 
provided to the government under an assurance of privacy, the 
information is `confidential' within the meaning of Exemption 4.'' The 
Court identified two conditions ``that might be required for 
information communicated to another to be considered confidential.'' 
Under the first condition, ``information communicated to another 
remains confidential whenever it is customarily kept private, or at 
least closely held, by the person imparting it.'' The second condition 
provides that ``information might be considered confidential only if 
the party receiving it provides some assurance that it will remain 
secret.'' The Court found the first condition necessary for information 
to be considered confidential within the meaning of Exemption 4, but 
did not address whether the second condition must also be met.
    Following the issuance of the Court's opinion in Argus Leader, the 
U.S. Department of Justice issued guidance concerning the 
confidentiality prong of Exemption 4, articulating ``the newly defined 
contours of Exemption 4'' post-Argus Leader. Where the Government 
provides an express or implied indication to the submitter prior to or 
at the time the information is submitted to the Government that the 
Government would publicly disclose the information, then the submitter 
generally cannot reasonably expect confidentiality of the information 
upon submission, and the information is not entitled to confidential 
treatment under Exemption 4. In this rule, EPA is proposing to clearly 
assert that certain information is not confidential and would be 
disclosed publicly, if it is determined to not be entitled to 
confidential treatment in the final version of this rule. This 
assertion aligns with the Supreme Court's decision and the subsequent 
guidance that the government's assurances that a submission will be 
treated as not confidential should dictate the expectations of 
submitters. If EPA were to finalize these determinations, submitters 
are on notice before they submit any information that EPA has 
determined by the identified data elements discussed below, as well as 
in the addendum provided in the docket for this action, will not be 
entitled to confidential treatment upon submission and may be released 
by the Agency without further notice. As a result, submitters will not 
have a reasonable expectation that the information will be treated as 
confidential; rather, they should have the expectation that the 
information will be disclosed.
    As described further below, EPA is proposing to make categorical 
confidentiality determinations as some of the proposed data elements 
that would be submitted to EPA contain information that is not entitled 
to confidential treatment because either: it is not the type of 
information that submitters customarily keep private or closely held; 
it is already publicly available; or it is discernible information that 
is self-evident or readily observable through reverse engineering by a 
third party.
2. Emissions Data Under Section 114 of the CAA
    The CAA states that ``[a]ny records, reports or information 
obtained under [section 114] shall be available to the public.'' \7\ 
Thus, the CAA begins with a presumption that the information submitted 
to EPA will be available to be disclosed to the public. It then 
provides a narrow exception to that presumption for information that 
``would divulge methods or processes entitled to protection as trade 
secrets.'' The CAA then narrows this exception further by excluding 
``emission data'' from the category of information eligible for 
confidential treatment. While the CAA does not define ``emission 
data,'' EPA has done so by regulation at 40 CFR 2.301(a)(2)(i). EPA 
releases, on occasion, some of the information submitted under CAA 
section 114 to parties outside of the Agency of its own volition, 
through responses to requests

[[Page 72033]]

submitted under the FOIA,\8\ or through civil litigation. As noted in 
the prior section, generally, when we have information that we intend 
to disclose publicly that is covered by a claim of confidentiality 
under FOIA Exemption 4, EPA has a process to make case-by-case or class 
determinations under 40 CFR part 2. This process includes evaluation 
whether such information is or is not emission data, and whether it 
otherwise qualifies for confidential treatment under FOIA Exemption 4.
---------------------------------------------------------------------------

    \7\ CAA section 114(c); 42 U.S.C. 7414(c).
    \8\ 5 U.S.C. 552.
---------------------------------------------------------------------------

    The regulations at 40 CFR 2.301 define emission data to include the 
following:
    (A) Information necessary to determine the identity, amount, 
frequency, concentration, or other characteristics (to the extent 
related to air quality) of any emission which has been emitted by the 
source (or of any pollutant resulting from any emission by the source), 
or any combination of the foregoing;
    (B) Information necessary to determine the identity, amount, 
frequency, concentration, or other characteristics (to the extent 
related to air quality) of the emissions which, under an applicable 
standard or limitation, the source was authorized to emit (including, 
to the extent necessary for such purposes, a description of the manner 
or rate of operation of the source); and
    (C) A general description of the location and/or nature of the 
source to the extent necessary to identify the source and to 
distinguish it from other sources (including, to the extent necessary 
for such purposes, a description of the device, installation, or 
operation constituting the source).
    In this proposal, we are applying the regulatory definition of 
``emission data'' in 40 CFR 2.301(a)(2)(i) to propose that certain 
categories of source certification and compliance information are not 
entitled to confidential treatment because they qualify as emissions 
data. If EPA finalizes these determinations, that information would be 
subject to disclosure to the public without further notice. As relevant 
to this proposal, a ``source'' for purposes of the definition in 40 CFR 
2.301 is generally the equipment covered by a proposed regulatory 
requirement, such as process equipment in a plant or facility and any 
related emission units. EPA's broad general definitions of emissions 
data also exclude certain information related to products still in the 
research and development phase or products not yet on the market except 
for limited purposes. Thus, for example, 40 CFR 2.301(a)(2)(ii) 
excludes information related to ``any product, method, device, or 
installation (or any component thereof) designed and intended to be 
marketed or used commercially but not yet so marketed or used.'' This 
specific exclusion from the definition of emissions data is limited in 
time. EPA does not believe data related to this exclusion are 
implicated in this proposed rulemaking because these data generally 
relate to equipment that EPA understands are primarily for purposes of 
maintaining legacy production processes at existing facilities.

B. Data Elements Proposed To Be Reported to EPA Under This Action

    Consistent with EPA's commitment to transparency in program 
implementation, EPA has reviewed the data reporting elements proposed 
in this action to see if information under the umbrella of those data 
elements could be considered entitled to confidential treatment. EPA is 
proposing to treat certain data elements as not entitled to 
confidential treatment. Later in this section, EPA outlines individual 
data elements and proposes whether they will be handled as 
confidential, not confidential or undetermined, as well as whether they 
are emission data and are therefore releasable. There may be additional 
reasons not to release individual data elements determined to not be 
entitled to confidential treatment, for example if it is personally 
identifiable information (PII). EPA proposes to make confidentiality 
determinations and treat data concerning process agent uses similarly 
to the process under the HFC Phasedown Program as codified in 40 CFR 
84.31(k). Some data may be released in different contexts, including to 
the general public to encourage transparency, to ensure compliance with 
EPA's general ODS phaseout, and to meet the United States' reporting 
commitments under the Montreal Protocol. Emission data, including data 
used as inputs to emissions equations, would generally be releasable 
under CAA section 114(c), which provides that emission data shall be 
available to the public. ``Inputs to emission equations'' refers to 
data necessary to determine the identity, amount, frequency, or 
concentration of the emission emitted by the reporting facilities. 
Inputs to emission equations include equipment parameters, measured 
data, supporting calculations, and other rationale used to calculate 
reported emission quantities. Some aggregated data would also be 
released to the Ozone Secretariat in line with past practices and 
existing commitments, which could include a list of the specific ODS 
used as process agents and the applications those specific ODS are used 
in, the levels of emissions from those uses in metric tons and ODP-
weighted metric tons, and the specific containment technologies used to 
minimize emissions of controlled substances. EPA also intends to 
release the aggregate consumption of ODS used in process agents in 
metric tons and ODP-weighted metric tons. Finally, EPA would include 
production, import, export, and destruction of ODS used as process 
agents by chemical in data reported to the Montreal Protocol's Ozone 
Secretariat as part of the United States' annual report submitted under 
Article 7 of the treaty. At this time, this aggregated data would 
comprise data from three or more entities. Release of this information 
documents U.S. conformance with commitments under an international 
agreement, so even if the number of entities with process agent uses 
decreases in future, EPA is still proposing to determine that process 
agent data reported by the United States in accordance with commitments 
under the Montreal Protocol would not be confidential.
    Some of the data elements EPA is proposing to collect may be 
similar to or the same as those required to be reported under the 
existing requirements associated with the GHGRP, particularly for 
entities subject to 40 CFR part 98, subpart L. The regulatory reporting 
requirements are separate and the Agency is not proposing any changes 
to 40 CFR part 98 in this rulemaking. To the extent relevant, data 
elements submitted in accordance with requirements established through 
this rulemaking and determined to not be confidential under 40 CFR part 
82, subpart A, would not be provided confidential treatment regardless 
of whether they have previously been determined to be confidential 
under the GHGRP.
    Specifically, EPA proposes that the identity of byproducts 
manufactured in the process agent application; contact information for 
facilities that use controlled substances as process agents; emission 
data, including reported emission factors and the proposed ODS process 
agent monitoring plan; and technologies currently being used and 
actions taken to minimize use or emissions of controlled substances 
used as process agents would also not be considered confidential. The 
Agency proposes to determine the following information concerning ODS 
process agents as confidential: process agent sourcing; internal 
facility processes such as the quantity of process agent use, recycling 
and reuse, products, and

[[Page 72034]]

byproducts; and emission reduction technologies and actions planned or 
currently under evaluation. As noted previously, the Agency expects to 
release aggregated data to the Ozone Secretariat, including ODS process 
agent information concerning process agent applications currently used 
in the United States, consumption, emissions, and emission reduction 
technologies and actions undertaken. Further, EPA would begin reporting 
emissions data in metric tons instead of ODP-weighted metric tons.
    In addition, EPA proposes to revise provisions in 40 CFR 82.14(a), 
82.13(c) for class I controlled substances, and 82.24(a)(1) for class 
II controlled substances to specify that there may be future ways to 
submit reports electronically. Under current requirements, reports 
available for submission must be submitted electronically through the 
Central Data Exchange. In this action the Agency proposes to extend 
these requirements to allow the use of another electronic format 
specified by EPA. This revision is intended to provide flexibility in 
the event that the Agency designates a successor system to the Central 
Data Exchange for reporting requirements under the ODS phaseout in 40 
CFR part 82, subpart A, and would align with similar provisions for the 
HFC Phasedown Program in 40 CFR 84.31(a)(2).

V. Proposed Definitions

    EPA also proposes to add a definition of ``process agent'' and 
revise two definitions to better reflect current EPA and international 
practices. EPA proposes to define ``process agent'' in 40 CFR part 82 
similarly to the existing definition in 40 CFR part 84, with the key 
difference being that 40 CFR part 82 addresses ODS controlled 
substances and 40 CFR part 84 addresses HFC regulated substances. EPA 
is proposing in this action to define the term ``process agent'' for 
the purposes of 40 CFR part 82 as ``the use of a controlled substance 
to form the environment for a chemical reaction or inhibiting an 
unintended chemical reaction (e.g., use as a solvent, catalyst, or 
stabilizer) where the controlled substance is not consumed in the 
reaction, but is removed or recycled back into the process and where no 
more than trace quantities remain in the final product. A feedstock, in 
contrast, is entirely consumed during the reaction.'' We expect this 
definition will provide greater clarity of what is considered process 
agent use. In 40 CFR 82.3, the Agency defines ``facility'' to mean 
``any process equipment (e.g., reactor, distillation column) used to 
convert raw materials or feedstock chemicals into controlled substances 
or consume controlled substances in the production of other chemicals'' 
and ``plant'' to mean ``one or more facilities at the same location 
owned by or under common control of the same person.'' These 
definitions are inverted from how they would typically be understood 
and applied. EPA proposes to switch the two definitions, such that a 
plant is a subset of a facility, similar to how 40 CFR part 84 
considers a production line to be one component of a facility. The 
definition of ``plant'' in 40 CFR part 82 would be similar to the 
definition of ``production line'' in 40 CFR part 84, and definitions of 
``facility'' would accordingly correspond. We do not expect this to 
result in any material impacts, but this revision may increase clarity 
and consistency.

VI. Costs and Benefits

    The proposed recordkeeping and reporting requirements concerning 
uses of ODS as process agents are intended in general to codify 
existing practices and do not represent substantive additional effort 
on the part of affected entities. EPA is aware of six potentially 
affected entities, and expects that these entities are already able to 
meet most of the proposed requirements under existing practices. The 
reported information would support U.S. efforts to more easily report 
information consistent with Montreal Protocol decisions and to better 
understand potential implications of uses of ODS as process agents 
under the CAA.
    EPA expects that entities that would be affected by this action are 
already subject to recordkeeping and reporting requirements under 40 
CFR part 82 and that the requirements proposed in this action would not 
result in significant increased burden. In 40 CFR 82.13 and 82.24 the 
Agency currently requires producers of controlled substance to record 
and report related information, including requirements in 40 CFR 
82.13(f)(2)(vii) and 82.24(b)(2)(vi) to maintain records of any 
controlled substance used as a feedstock, destroyed in the manufacture 
of another substance, used in the manufacture of any other substance, 
or introduced into the production process of the same controlled 
substance. EPA also requires additional documentation and reporting 
concerning uses of ODS in processes that result in their transformation 
or destruction. The Agency understands that subject entities have 
already reported similar information to EPA concerning uses of ODS as a 
process agent in the past on a voluntary basis, report similar 
information concerning production of ODS and feedstock uses, and 
already have available process knowledge and experience necessary to 
meet the recordkeeping and reporting requirements proposed in this 
action. EPA also believes that codified requirements will reduce 
potential uncertainty about EPA's recordkeeping and reporting 
expectations.
    EPA expects that this action will result in costs for each subject 
entity to prepare an initial one-time report, submit annual reports and 
notifications of significant changes as warranted, and recordkeeping. 
However, with regards to the annual reports, the Agency already 
solicits information from the affected entities via annual requests. 
Therefore, any associated change in burden would be limited relative to 
current practice. The Agency conservatively estimates these 
requirements to result in costs of approximately $13,000 per facility 
for the first year, with the higher costs due to initial preparation of 
the one-time report, and $1,000 per facility in following years for 
continued compliance with the other recordkeeping and reporting 
requirements. As noted in section II.B. of this preamble, we do not 
anticipate the establishment of new processes or facilities using ODS 
as process agents, but request comment on that assumption.
    The Agency estimates that the proposal to require an emissions 
reporting methodology similar to 40 CFR part 98, subpart L, would 
result in additional costs of approximately $190,000 per facility in 
the first year due to initial planning and additional sampling, 
analysis, monitoring and calculations. EPA estimates compliance costs 
of approximately $17,000 in subsequent years for continued sampling, 
analysis, monitoring, and calculations. The total estimated costs for 
all requirements are approximately $1.8 million in the first year and 
$160,000 annually in subsequent years. The costs are discussed in a 
draft technical support document and the supporting statement for the 
information collection request (ICR).

VII. Statutory and Executive Order Review

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in 
Executive Order 12866, as amended by Executive Order 14094, and was

[[Page 72035]]

therefore not subject to a requirement for Executive Order 12866 
review.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to OMB under the PRA. The ICR document that 
EPA prepared has been assigned EPA ICR number 1432.39. You can find a 
copy of the ICR in the docket for this proposed rule, and it is briefly 
summarized here.
    EPA is proposing requirements for both one-time, annual, and 
situational reporting and for recordkeeping to support international 
agreements concerning the use of controlled substances as process 
agents, and to provide relevant information to EPA concerning 
implications of these uses and emissions. Recordkeeping, one-time 
reports, and annual reporting requirements are consistent with the 
existing importer and producer reporting requirements in 40 CFR 82.13 
for class I controlled substances and 40 CFR 82.24 for class II 
controlled substances. These requirements are also consistent with 
existing practice of these facilities providing similar information 
concerning these uses of controlled substances as process agents to EPA 
on a voluntary basis. The ICR addresses the incremental changes to the 
existing reporting and recordkeeping programs that are approved under 
OMB control number 2060-0170.
    Respondents/affected entities: Respondents and affected entities 
that use controlled substances as process agents.
    Respondent's obligation to respond: Mandatory--sections 603(b) and 
114 of the CAA.
    Estimated number of respondents: 6.
    Frequency of response: One-time, annual, and as needed.
    Total estimated burden: 5,883 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $719,593 (per year), including $28,245 
annualized capital or operation and maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden to EPA using the docket identified at 
the beginning of this proposed rule. EPA will respond to any ICR-
related comments in the final rule. You may also send your ICR-related 
comments to OMB's Office of Information and Regulatory Affairs using 
the interface at https://www.reginfo.gov/public/do/PRAMain. Find this 
particular information collection by selecting ``Currently under 
Review--Open for Public Comments'' or by using the search function. OMB 
must receive comments no later than November 20, 2023.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities because none 
of the identified affected entities are small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. While this action 
creates an enforceable duty on the private sector, the cost does not 
exceed $100 million or more.

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.

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

    This action does not have Tribal implications as specified in 
Executive Order 13175. EPA is not aware of Tribal businesses engaged in 
activities that would be directly affected by this action. Based on the 
Agency's assessments, as discussed in section VI of this preamble, EPA 
also does not believe that potential effects, even if direct, would be 
substantial. Accordingly, this action will not have substantial direct 
effects on Tribal governments, the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes, as 
specified in Executive Order 13175. Thus, Executive Order 13175 does 
not apply to this action. The Agency periodically updates Tribal 
officials on air regulations through the monthly meetings of the 
National Tribal Air Association.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive order. 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, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    Executive Order 12898 (59 FR 7629, February 16, 1994) 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 (people of color and/or Indigenous 
peoples) and low-income populations.
    EPA believes that this type of action does not concern human health 
or environmental conditions and therefore cannot be evaluated with 
respect to potentially disproportionate and adverse effects on people 
of color, low-income populations and/or Indigenous peoples because it 
does not impact emissions from subject facilities. This regulatory 
action proposes recordkeeping and reporting requirements that do not 
impact human health or the environment, but provide additional insight 
into the uses and emissions of ODS used as process agents.

[[Page 72036]]

List of Subjects in 40 CFR Part 82

    Environmental protection, Chemicals, Emissions, Reporting and 
recordkeeping requirements.

Michael S. Regan,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 82 is proposed 
to be amended as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:

    Authority:  42 U.S.C. 7414, 7601, 7671-7671q.

0
2. Amend Sec.  82.3 by revising the definitions for ``Facility'' and 
``Plant'' and adding the definition ``Process agent'' in alphabetical 
order to read as follows:


Sec.  82.3  Definitions for class I and class II controlled substances.

* * * * *
    Facility means one or more plants at the same location owned by or 
under common control of the same person.
* * * * *
    Plant means any process equipment (e.g., reactor, distillation 
column) used to convert raw materials or feedstock chemicals into 
controlled substances or consume controlled substances in the 
production of other chemicals.
* * * * *
    Process agent means the use of a controlled substance to form the 
environment for a chemical reaction or inhibiting an unintended 
chemical reaction (e.g., use as a solvent, catalyst, or stabilizer) 
where the controlled substance is not consumed in the reaction, but is 
removed or recycled back into the process and where no more than trace 
quantities remain in the final product. A feedstock, in contrast, is 
consumed during the reaction.
* * * * *
0
3. Amend Sec.  82.13 by:
0
a. In paragraph (c), adding ``or another format specified by EPA'' 
after the words ``Central Data Exchange''; and
0
b. Adding paragraph (ee).
    The addition reads as follows:


Sec.  82.13  Recordkeeping and reporting requirements for class I 
controlled substances.

* * * * *
    (ee) Process agents. Any entity that uses a class I controlled 
substance as a process agent must comply with the following 
recordkeeping and reporting requirements for each facility that uses a 
class I controlled substance as a process agent:
    (1) Reporting--one-time report: By [date 120 days after publication 
of a final rule in the Federal Register], or within 120 days of the 
date that an entity first uses a class I controlled substance as a 
process agent, whichever is later, any entity that uses a class I 
controlled substance as a process agent must submit to the 
Administrator a report containing the following information for each 
use of a class I controlled substance as a process agent:
    (i) The name and address of each facility and plant, and each 
responsible person's name, email address, and phone number;
    (ii) The name, purpose, and final product manufactured of each 
process agent application that uses a class I controlled substance;
    (iii) The start-up date of each facility and plant that uses a 
class I controlled substance as a process agent;
    (iv) For each facility, the names and amounts of each product and 
byproduct manufactured in the process agent application during the 
previous control period, including amounts destroyed or used as a 
feedstock;
    (v) For each facility, the total air, fugitive air, and stack point 
air emissions of class I controlled substances used as a process agent 
during the previous control period;
    (vi) For each facility, a description of technologies currently 
being used and actions taken or currently under evaluation to minimize 
use or emissions of class I controlled substances used as process 
agents (including estimated emissions reductions associated with each); 
and
    (vii) For each facility, a description that includes details of the 
percentages of class I controlled substances used as a process agent 
and retained within the process agent application, recovered after the 
process agent application, and emitted or entrained in the final 
product.
    (2) Annual reports: Any entity that uses a class I controlled 
substance as a process agent must provide by February 14 of each year 
an annual report for the previous control period containing the 
following information for each use of the class I controlled substance 
as a process agent:
    (i) For each facility, contact information including email address 
and phone number for a primary and alternate contact person;
    (ii) For each facility, the name and amount of each class I 
controlled substance initially introduced into the process agent 
application for use as a process agent, specified independently for 
paragraphs (ee)(2)(ii)(A) through (G) of this section by whether the 
class I controlled substance was:
    (A) Obtained as virgin;
    (B) Obtained as used;
    (C) Produced by the entity;
    (D) Purchased from a U.S. producer;
    (E) Imported;
    (F) Reclaimed by the entity from a different use; and
    (G) Reclaimed by another entity;
    (iii) For each facility, the name and amount of each class I 
controlled substance used as a process agent and reused or recycled by 
the entity for continued use in the same process agent application at 
the same facility;
    (iv) For each facility, the name and amount of each class I 
controlled substance used as a process agent that was ultimately:
    (A) Transformed;
    (B) Reused or recycled for use in a different process agent 
application; or
    (C) Destroyed by approved destruction technologies;
    (v) For each facility, the total air, fugitive air, and stack point 
air emissions of each class I controlled substance used as a process 
agent;
    (vi) For each facility, the names and amounts of each product and 
byproduct manufactured in the process agent application during the 
previous control period, including amounts destroyed or used as a 
feedstock;
    (vii) For each facility, a description of emission reduction 
actions for class I controlled substances used as a process agent taken 
since the last one-time or annual report, planned, or currently under 
evaluation; and
    (viii) For each facility, any significant process agent application 
changes anticipated to result in increases for the next annual report 
of greater than 20 percent of the amount of class I controlled 
substance initially introduced for or emitted during use as a process 
agent by an entity, as compared to the previous control period, must be 
specified in a report submitted to EPA at least 180 days prior to 
implementing the change.
    (3) Recordkeeping: Every person who uses a class I controlled 
substance as a process agent during a control period must maintain the 
following records, as applicable:
    (i) Dated records of the quantity of each class I controlled 
substance produced at each facility for use as a process agent;
    (ii) Records identifying the producer or importer of the class I 
controlled substance received at each facility for use as a process 
agent by the person;
    (iii) For each facility, copies of the invoices or receipts 
documenting the sale or other transfer of ownership of

[[Page 72037]]

each class I controlled substance for use as a process agent to the 
person;
    (iv) Dated records identifying the quantity of each product 
manufactured within each facility by using a class I controlled 
substance as a process agent;
    (v) For each facility, records of the date and the estimated 
quantity of any spill or release of each class I controlled substance 
used as a process agent that equals or exceeds 100 pounds;
    (vi) For each facility, a description of the methodology used to 
measure and calculate emissions, and dated records of equipment 
parameters, measured data, supporting calculations, and other rationale 
used to validate reported emission quantities;
    (vii) For each facility, dated records of the quantity of each 
class I controlled substance used as a process agent which is 
subsequently transformed or destroyed;
    (viii) In the case where class I controlled substances used as a 
process agent were ultimately transformed by an entity other the entity 
which last used the class I controlled substances as a process agent, a 
copy of the Internal Revenue Service Certificate showing that the 
purchaser or recipient of the controlled substance, in the United 
States or in another country that is a Party, certifies the intent to 
transform the controlled substance, or sell the controlled substance 
for transformation; and
    (ix) In the case where class I controlled substances used as a 
process agent were ultimately destroyed by an entity other the entity 
which last used the class I controlled substances as a process agent, a 
copy of the destruction verification (as in paragraph (k) of this 
section), showing that the purchaser or recipient of a controlled 
substance, in the United States or in another country that is a Party, 
certifies the intent to destroy the controlled substance, or sell the 
controlled substance for destruction.
    (4) Reports are no longer required for process agent use in the 
year after an entity notifies the Administrator that they have 
permanently ceased use of all process agents, but the entity must 
continue to comply with all applicable recordkeeping requirements.


Sec.  82.14  [Amended]

0
4. Amend Sec.  82.14, in paragraph (a), by adding ``or another format 
specified by EPA'' after the words ``Central Data Exchange.''
0
5. Amend Sec.  82.24 by:
0
a. In paragraph (a)(1), adding ``or another format specified by EPA'' 
after the words ``Central Data Exchange''; and
0
b. Adding paragraph (g).
    The addition reads as follows:


Sec.  82.24  Recordkeeping and reporting requirements for class II 
controlled substances.

* * * * *
    (g) Process agents. Any entity that uses a class II controlled 
substance as a process agent must comply with the following 
recordkeeping and reporting requirements for each facility that uses a 
class II controlled substance as a process agent:
    (1) Reporting--one-time report: By [date 120 days after publication 
of a final rule in the Federal Register], or within 120 days of the 
date that an entity first uses a class II controlled substance as a 
process agent, whichever is later, any entity that uses a class II 
controlled substance as a process agent must submit to the 
Administrator a report containing the following information for each 
use of a class II controlled substance as a process agent:
    (i) The name and address of each facility and plant, and each 
responsible person's name, email address, and phone number;
    (ii) The name, purpose, and final product manufactured of each 
process agent application that uses a class II controlled substance;
    (iii) The start-up date of each facility and plant that uses a 
class II controlled substance as a process agent;
    (iv) For each facility, the names and amounts of each product and 
byproduct manufactured in the process agent application during the 
previous control period, including amounts destroyed or used as a 
feedstock;
    (v) For each facility, the total air, fugitive air, and stack point 
air emissions of class II controlled substances used as a process agent 
during the previous control period;
    (vi) For each facility, a description of technologies currently 
being used and actions taken or currently under evaluation to minimize 
use or emissions of class II controlled substances used as process 
agents (including estimated emissions reductions associated with each); 
and
    (vii) For each facility, a description that includes details of the 
percentages of class II controlled substances used as a process agent 
and retained within the process agent application, recovered after the 
process agent application, and emitted or entrained in the final 
product.
    (2) Annual reports: Any entity that uses a class II controlled 
substance as a process agent must provide by February 14 of each year 
an annual report for the previous control period containing the 
following information for each use of the class II controlled substance 
as a process agent:
    (i) For each facility, contact information including email address 
and phone number for a primary and alternate contact person;
    (ii) For each facility, the name and amount of each class II 
controlled substance initially introduced into the process agent 
application for use as a process agent, specified independently for 
paragraphs (g)(2)(ii)(A) through (G) of this section by whether the 
class II controlled substance was:
    (A) Obtained as virgin;
    (B) Obtained as used;
    (C) Produced by the entity;
    (D) Purchased from a U.S. producer;
    (E) Imported;
    (F) Reclaimed by the entity from a different use; and
    (G) Reclaimed by another entity;
    (iii) For each facility, the name and amount of each class II 
controlled substance used as a process agent and reused or recycled by 
the entity for continued use in the same process agent application at 
the same facility;
    (iv) For each facility, the name and amount of each class II 
controlled substance used as a process agent that was ultimately:
    (A) Transformed;
    (B) Reused or recycled for use in a different process agent 
application; or
    (C) Destroyed by approved destruction technologies;
    (v) For each facility, the total air, fugitive air, and stack point 
air emissions of each class II controlled substance used as a process 
agent;
    (vi) For each facility, the names and amounts of each product and 
byproduct manufactured in the process agent application during the 
previous control period, including amounts destroyed or used as a 
feedstock;
    (vii) For each facility, a description of emission reduction 
actions for class II controlled substances used as a process agent 
taken since the last one-time or annual report, planned, or currently 
under evaluation; and
    (viii) For each facility, any significant process agent application 
changes anticipated to result in increases for the next annual report 
of greater than 20 percent of the amount of class II controlled 
substance initially introduced for or emitted during use as a process 
agent by an entity, as compared to the previous control period, must be 
specified in a report submitted to EPA at least 180 days prior to 
implementing the change.
    (3) Recordkeeping: Every person who uses a class II controlled 
substance as a process agent during a control period must maintain the 
following records, as applicable:
    (i) Dated records of the quantity of each class II controlled 
substance

[[Page 72038]]

produced at each facility for use as a process agent;
    (ii) Records identifying the producer or importer of the class II 
controlled substance received at each facility for use as a process 
agent by the person;
    (iii) For each facility, copies of the invoices or receipts 
documenting the sale or other transfer of ownership of each class II 
controlled substance for use as a process agent to the person;
    (iv) Dated records identifying the quantity of each product 
manufactured within each facility by using a class II controlled 
substance as a process agent;
    (v) For each facility, records of the date and the estimated 
quantity of any spill or release of each class II controlled substance 
used as a process agent that equals or exceeds 100 pounds;
    (vi) For each facility, a description of the methodology used to 
measure and calculate emissions, and dated records of equipment 
parameters, measured data, supporting calculations, and other rationale 
used to validate reported emission quantities;
    (vii) For each facility, dated records of the quantity of each 
class II controlled substance used as a process agent which is 
subsequently transformed or destroyed;
    (viii) In the case where class II controlled substances used as a 
process agent were ultimately transformed by an entity other the entity 
which last used the class II controlled substances as a process agent, 
a copy of the person's transformation verification as provided under 
paragraph (e)(3) of this section; and
    (ix) In the case where class II controlled substances used as a 
process agent were ultimately destroyed by an entity other the entity 
which last used the class II controlled substances as a process agent, 
a copy of the person's destruction verification, as provided under 
paragraph (e)(5) of this section.
    (4) Reports are no longer required for process agent use in the 
year after an entity notifies the Administrator that they have 
permanently ceased use of all process agents, but the entity must 
continue to comply with all applicable recordkeeping requirements.
0
6. Add Sec.  82.25 to read as follows:


Sec.  82.25  Treatment of data submitted under this subpart.

    (a) Sections 2.201 through 2.215 and 2.301 of this chapter do not 
apply to data submitted under this subpart that EPA has determined 
through rulemaking to be either of the following:
    (1) Emission data, as defined in Sec.  2.301(a)(2) of this chapter, 
determined in accordance with section 114(c) and 307(d) of the Clean 
Air Act; or
    (2) Data not otherwise entitled to confidential treatment.
    (b) Except as otherwise provided in paragraph (d) of this section, 
Sec. Sec.  2.201 through 2.208 and 2.301(c) and (d) of this chapter do 
not apply to data submitted under this part that EPA has determined 
through rulemaking to be entitled to confidential treatment. EPA shall 
treat that information as confidential in accordance with the 
provisions of Sec.  2.211 of this chapter, subject to paragraph (d) of 
this section and Sec.  2.209 of this chapter.
    (c) Upon receiving a request under 5 U.S.C. 552 for data submitted 
under this part that EPA has determined through rulemaking to be 
entitled to confidential treatment, the relevant Agency official shall 
furnish the requestor a notice that the information has been determined 
to be entitled to confidential treatment and that the request is 
therefore denied. The notice shall include or cite to the appropriate 
EPA determination.
    (d) A determination made through rulemaking that information 
submitted under this part is entitled to confidential treatment shall 
continue in effect unless, subsequent to the confidentiality 
determination through rulemaking, EPA takes one of the following 
actions:
    (1) EPA determines through a subsequent rulemaking that the 
information is emission data or data not otherwise entitled to 
confidential treatment; or
    (2) The Office of General Counsel issues a final determination, 
based on the requirements of 5 U.S.C. 552(b)(4), stating that the 
information is no longer entitled to confidential treatment because of 
change in the applicable law or newly discovered or changed facts. 
Prior to making such final determination, EPA shall afford the business 
an opportunity to submit comments on pertinent issues in the manner 
described by Sec. Sec.  2.204(e) and 2.205(b) of this chapter. If, 
after consideration of any timely comments submitted by the business, 
the Office of General Counsel makes a revised final determination that 
the information is not entitled to confidential treatment, the relevant 
agency official will notify the business in accordance with the 
procedures described in Sec.  2.205(f)(2) of this chapter.

[FR Doc. 2023-22182 Filed 10-18-23; 8:45 am]
BILLING CODE 6560-50-P


