[Federal Register Volume 77, Number 43 (Monday, March 5, 2012)]
[Proposed Rules]
[Pages 13061-13069]
[FR Doc No: 2012-5264]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[EPA-HQ-TRI-2011-0174; FRL-9642-2]

Electronic Reporting of Toxics Release Inventory Data

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Facilities that currently report Toxics Release Inventory
(TRI) data to the U.S. Environmental Protection Agency (EPA) use either
paper reporting forms or the online reporting software application
known as the Toxics Release Inventory-Made Easy Web or simply TRI-
MEweb. Effective January 1, 2013, EPA proposes to require facilities to
report non-confidential TRI data to EPA using electronic software
provided by the Agency. The only exception to this electronic reporting
requirement would be for the few facilities that submit trade secret
TRI information (including sanitized and unsanitized information), who
would continue to submit their trade secret reporting forms and
substantiation forms in hard copy. As of Reporting Year (RY) 2010,
approximately 95 percent of TRI reporting facilities were using TRI-
MEweb, making it possible for the Agency to process and expedite the
release of TRI data to the public.
    Under this rulemaking, EPA would also require facilities to submit
electronically (i.e., not on paper forms or CD-ROMs) any revisions or
withdrawals of previously submitted TRI data. For trade secret
submissions, EPA would still accept revisions or withdrawals of
previously submitted trade secret information on paper forms.

DATES: Comments must be received on or before May 4, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
TRI-2011-0174, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for
submitting comments.
     Email<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: OEI Docket, Environmental Protection Agency,
Mailcode 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
     Hand Delivery: EPA/DC, EPA West, Room 3334, 1301
Constitution Ave. NW., Washington, DC 20460. 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-TRI-
2011-0174. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, 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 EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, 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 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
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
for which disclosure is restricted by statute. Certain other materials,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at the OEI
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW.,
Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The EPA Docket
Center Public Reading Room is open from

8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the OEI Docket is (202) 566-
1752.

FOR FURTHER INFORMATION CONTACT: For general information on TRI,
contact the Emergency Planning and Community Right-to-Know Hotline at
(800) 424-9346 or<PHONE_NUMBER>, TDD<PHONE_NUMBER>, http://www.epa.gov/epaoswer/hotline/. For specific information on this
rulemaking, contact David Turk, Toxics Release Inventory Program
Division, Mailcode 2844T, OEI, Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington, DC 20460; Telephone:<PHONE_NUMBER>;
Email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Index

I. Background and General Information
    A. Acronyms and Abbreviations Used in This Document
    B. Does this action apply to me?
    C. What should I consider as I prepare my comments for EPA?
II. What is EPA's statutory authority for taking this action?
III. What reporting requirement change is EPA proposing?
    A. Description of Proposed Change
    B. How are TRI reports currently submitted to and processed by
the agency?
    C. What is the history of electronic reporting of TRI data to
EPA?
    D. How does a facility report TRI data using TRI-MEweb?
    E. Why is EPA proposing this requirement?
    F. How does this proposed rule affect revisions and withdrawals
of previous TRI submissions?
    G. What benefits will this proposed rule likely produce?
    H. Would EPA Offer any exceptions to the proposed requirements?
    I. What is EPA doing to help ensure facilities know about this
proposed rule?
IV. Request for Comment
V. References
VI. What are the statutory and executive order reviews associated
with this action?
    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, as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
    D. Unfunded Mandates Reform Act
    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 Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. Background and General Information

A. Acronyms and Abbreviations Used in This Document

AFR--Automated Form R
APA--Administrative Procedure Act
ATRS--Automated TRI Reporting Software
CBI--Confidential Business Information
CDX--Central Data Exchange
CFR--Code of Federal Regulations
CROMERR--Cross-Media Electronic Reporting Rule
DPC-TRI Data Processing Center
EO--Executive Order
EPA--U.S. Environmental Protection Agency
EPCRA--Emergency Planning and Community Right-to-Know Act
FR--Federal Register
GPEA--Government Paperwork Elimination Act
ICR--Information Collection Request
NAICS--North American Industry Classification System
NTTAA--National Technology Transfer and Advancement Act of 1995
OEI--Office of Environmental Information (EPA)
OMB--Office of Management and Budget (Executive Office of the
President)
PPA--Pollution Prevention Act
RY--Reporting Year
SIC--Standard Industrial Code
TRI--Toxics Release Inventory
TRI-ME--TRI-Made Easy Desktop Software
TRI-MEweb--Toxics Release Inventory-Made Easy Internet-based
Software Application
U.S.C.--United States Code
XML--Extensible Markup Language

B. Does this action apply to me?

    This proposed rule applies to facilities that submit annual reports
under section 313 of the Emergency Planning and Community Right-to-Know
Act (EPCRA) and section 6607 of the Pollution Prevention Act (PPA). To
determine whether your facility would be affected by this action, you
should carefully examine the applicability criteria in Part 372,
Subpart B, of Title 40 of the Code of Federal Regulations. Potentially
affected categories and entities may include, but are not limited to
the following:

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          Category             Examples of potentially affected entities
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Industry....................  Facilities included in the following NAICS
                               manufacturing codes (corresponding to SIC
                               codes 20 through 39): 311*, 312*, 313*,
                               314*, 315*, 316, 321, 322, 323*, 324,
                               325*, 326*, 327, 331, 332, 333, 334*,
                               335*, 336, 337*, 339*, 111998*, 211112*,
                               212324*, 212325*, 212393*, 212399*,
                               488390*, 511110, 511120, 511130, 511140*,
                               511191, 511199, 512220, 512230*, 519130*,
                               541712*, or 811490*.
                              *Exceptions and/or limitations exist for
                               these NAICS codes.
                              Facilities included in the following NAICS
                               codes (corresponding to SIC codes other
                               than SIC codes 20 through 39):
                                 212111, 212112, 212113
                              (correspond to SIC 12, Coal Mining (except
                              1241));
                                 212221, 212222, 212231, 212234,
                              212299 (correspond to SIC 10, Metal Mining
                              (except 1011, 1081, and 1094));
                                 221111, 221112, 221113, 221119,
                              221121, 221122, 221330 (Limited to
                              facilities that combust coal and/or oil
                              for the purpose of generating power for
                              distribution in commerce) (correspond to
                              SIC 4911, 4931, and 4939, Electric
                              Utilities);
                                 424690, 425110, 425120 (Limited
                              to facilities previously classified in SIC
                              5169, Chemicals and Allied Products, Not
                              Elsewhere Classified);
                                 424710 (corresponds to SIC
                              5171, Petroleum Bulk Terminals and
                              Plants);
                                 562112 (Limited to facilities
                              primarily engaged in solvent recovery
                              services on a contract or fee basis
                              (previously classified under SIC 7389,
                              Business Services, NEC)); and
                                 562211, 562212, 562213, 562219,
                              562920 (Limited to facilities regulated
                              under the Resource Conservation and
                              Recovery Act, Subtitle C, 42 U.S.C. 6921
                              et seq.) (correspond to SIC 4953, Refuse
                              Systems).
Federal Government..........  Federal facilities.
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    If you have questions regarding the applicability of this action to
a particular entity, consult the individual listed in the preceding FOR
FURTHER INFORMATION CONTACT section. This action may also be of
interest to those who use EPA's TRI data and have an interest in the
public availability of high-quality, timely TRI data and information,
including state agencies, local governments, communities, environmental
groups and other non-

governmental organizations, as well as members of the general public.

C. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or email. 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 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 so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

II. What is EPA's statutory authority for taking this action?

    The EPA is implementing this action under sections 313(g), 313(h),
and 328 of EPCRA, 42 U.S.C. 11023(g), 11023(h) and 11048, and section
6607 of the Pollution Prevention Act, 42 U.S.C. 13106.
    Under EPCRA, Congress granted EPA broad rulemaking authority. EPCRA
section 328 provides that the ``Administrator may prescribe such
regulations as may be necessary to carry out this chapter.'' 42 U.S.C.
11048. EPCRA requires EPA to ``publish a uniform toxic chemical release
form for facilities covered'' by the TRI Program. 42 U.S.C. 11023(g).
    The Government Paperwork Elimination Act (GPEA) (Pub. L. 105-277
(44 U.S.C. 3504)) allows Federal agencies to provide for electronic
submissions and the use of electronic signatures, when practicable.
Similarly, EPA's Cross-Media Electronic Reporting Regulation (CROMERR)
(40 CFR Part 3), published in the Federal Register issue of October 13,
2005, states that any requirement in Title 40 of the CFR to submit a
report directly to EPA can be satisfied with an electronic submission
that meets certain conditions, once the Agency publishes a notice that
electronic document submission is available for that requirement.

III. What reporting requirement change is EPA proposing?

A. Description of Proposed Change

    EPA is proposing to require facilities to report non-confidential
TRI data to EPA electronically. Under this proposal, EPA would no
longer accept paper submissions of TRI reports, except for trade secret
submissions which would still be submitted on paper forms (including
sanitized and unsanitized versions).
    Currently, EPA provides an online-reporting application, TRI-MEweb,
for facilities to use to report TRI data to the Agency. TRI-MEweb
provides a number of features that allow facilities to prepare and
submit their TRI reports to EPA more efficiently. For example, it
includes data validation tools that help facilities submit complete and
valid data and compare the current year's data to the prior year's
data--a feature which can sometimes help facilities identify potential
data errors. Comprehensive use of TRI-MEweb should help facilities
prepare and submit accurate TRI reports and reduce the amount of time
it takes EPA to process the reports and make the data available to the
public.
    Many TRI facilities have recognized the benefits of electronic
reporting, as reflected by the general increase in the percentage of
facilities that use TRI-MEweb to submit TRI data to EPA electronically
each year. For reporting year (RY) 2010, approximately 95% of
facilities used TRI-MEweb to report TRI data.
    Because such a large portion of TRI reporters already use TRI-
MEweb, this proposed TRI electronic reporting requirement is not
expected to affect the majority of TRI reporting facilities. In fact,
fewer than 5% of current TRI reporting facilities would need to become
familiar with the electronic reporting process. Information about using
TRI-MEweb to report electronically is available on the TRI Web site
(http://www.epa.gov/tri) and in the most recent version of the Toxic
Chemical Release Inventory Reporting Forms and Instructions (RFI),
which is available on the TRI Web site.
    Under this proposed rule, facilities that submit trade secret
information would continue to submit two versions of the substantiation
form and two versions of Form R or Form A--sanitized versions that
include the generic chemical name that is structurally descriptive of
the chemical being claimed as a trade secret and unsanitized versions
that include the trade secret chemical name. TRI-MEweb does not allow
facilities to submit trade secret information; however, to facilitate
reporting of such information, EPA currently provides electronically
fillable/printable versions of the TRI reporting forms (i.e., Form A,
Form R, and Form R Schedule 1) on the TRI Web site. EPA strongly
recommends that TRI facilities that submit TRI trade secret information
use a computer or typewriter to prepare their hard-copy submissions of
TRI information and consult the TRI Web site (http://www.epa.gov/tri)
for more detailed information.
    To codify this proposed rule, EPA proposes inserting a paragraph
(c) into 40 CFR 372.85. This codification would require most regulated
facilities to submit TRI data electronically using the current
electronic reporting tool provided by EPA. EPA would only accept TRI
data that are submitted electronically, except for trade secret TRI
forms and substantiations; and EPA would not accept or process TRI data
that are not submitted in the appropriate manner.

B. How are TRI reports currently submitted to and processed by the
agency?

    Currently, facilities submit TRI reporting forms electronically or
by paper. To submit TRI data by paper, facilities download the
appropriate TRI reporting form or forms from the TRI Web site
(accessible at http://www.epa.gov/tri). Before RY 2006, EPA mailed
paper TRI reporting forms to facilities each year. Since RY 2006, EPA
has made the TRI reporting forms available on its Web site.
    If using a paper TRI reporting form, the facility's form Preparer
enters the facility's data on the form, the Certifying

Official certifies/signs the form, and the facility then sends the form
to EPA's TRI Data Processing Center (DPC) via mail or courier. The
current RFI, available on the TRI Web site (accessible at http://www.epa.gov/tri), provides a more detailed explanation of this process.
    In January 2011, EPA began providing fillable/printable versions of
the TRI Reporting Form R, Form R Schedule 1, and Form A through the TRI
Web site. For those facilities still wishing or needing to submit paper
forms (e.g., for trade secret submissions), EPA encouraged the use of
the fillable/printable forms, rather than handwritten forms, to help
ensure that the data--once received by the DPC--could be read and
entered into the TRI database.
    Electronic reporting using TRI-MEweb is already EPA's recommended
reporting approach for submitting TRI information to the Agency, and
under this proposed rule, it would become the required approach. To
submit TRI data electronically, a facility registers with EPA's Central
Data Exchange (CDX) and uses TRI-MEweb to prepare, certify, and submit
TRI reports. The use of CDX and TRI-MEweb to prepare and submit TRI
reports is explained below, in Unit III.D, ``How Does a Facility Report
TRI Data Using TRI-MEweb?''

C. What is the history of electronic reporting of TRI data to EPA?

    Beginning in 1987, the Agency began encouraging facilities to
submit TRI Form R data electronically using magnetic media. Initially,
EPA provided year-specific Automated Form R (AFR) software that allowed
a facility to submit TRI data for a particular reporting year.
Facilities could install and use the AFR software to produce either a
hard-copy TRI report or a diskette, which facilities could then submit
to EPA. Upon receipt, the DPC would transcribe hard-copy TRI reports
into a database and electronically enter diskette submissions into a
database. The use of AFR proved to be popular among facilities, and the
percentage of TRI reporting facilities using this tool increased from
13 percent in 1990 to 62 percent in 1996.
    Generally, the Agency improved upon the AFR each year by
incorporating new features, such as the ability to submit TRI data for
multiple reporting years (i.e., separate reports for each year), data
validation checks, and the ability to load data from prior years into
the current reporting year's electronic form. In 1998, EPA renamed the
AFR software to Automated TRI Reporting Software (ATRS) to reflect the
addition of Form A into the software.
    After RY 2000, EPA replaced ATRS with TRI-Made Easy (TRI-ME), which
was a computer desktop application that a facility could download from
the TRI Web site or receive in the mail upon request. TRI-ME provided
electronic assistance to a facility preparing TRI reports and, for the
first time, allowed a facility to submit TRI data to EPA's CDX via the
Internet. TRI-ME also allowed facilities to print a hard-copy version
of the TRI report or produce a digital file that could then be
submitted online or copied to a diskette and mailed to the DPC.
    In 2006, for RY 2005, EPA began making the TRI-MEweb application
available to a limited number of facilities. TRI-MEweb is a Web-based
reporting application that includes validation features to help
facilities report accurate information. This application is entirely
online, meaning a facility can access the application from any computer
that is connected to the Internet. In addition, because the application
is online, EPA can instantly perform any needed software updates or
corrections without requiring users to download an updated version of
software. Most, if not all, computers and Web software should be
compatible with TRI-MEweb.
    EPA continued to refine TRI-MEweb each year after its limited
released, expanding the number of facilities that could use it and
eventually making the application widely available to nearly all
facilities for RY 2008. The Agency also, for RY 2008, informed
facilities that it would focus on providing TRI-MEweb, and would no
longer provide the TRI-ME CD-ROM. Accordingly, a steadily increasing
percentage of facilities have submitted TRI data to EPA using TRI-
MEweb, as illustrated in Chart 1. Electronic reporting using TRI-MEweb
has now become the predominant mechanism that facilities use to submit
TRI data to EPA.

               Chart 1--Breakdown of Submission Methods Used During the Past Five Reporting Years
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                                 RY 2005       RY 2006       RY 2007       RY 2008       RY 2009       RY 2010
         Media type             (percent)     (percent)     (percent)     (percent)     (percent)     (percent)
----------------------------------------------------------------------------------------------------------------
TRI-MEweb Submissions.......          0.34          3.12         31.69         65.77         92.16         94.60
TRI-ME via CDX Submissions..         62.50         70.42         43.34         17.73          0.18          0.01
TRI-ME via Diskette                  28.71         21.22         18.20          9.79          0.16          0.02
 Submissions................
Paper Submissions...........          8.46          5.24          6.78          6.71          7.50          5.37
----------------------------------------------------------------------------------------------------------------

    Due to the longstanding history of electronic reporting of TRI
data, the benefits that TRI-MEweb provides, and the prevalence and
availability of the Internet, EPA published a notice in the Federal
Register on January 14, 2011, which encouraged facilities to utilize
TRI-MEweb. The notice also notified facilities of the availability of
fillable/printable TRI reporting forms on the TRI Web site and stated
that the Agency was considering publishing this proposed rule to
require electronic reporting of TRI data.

D. How does a facility report TRI data using TRI-MEweb?

    TRI-MEweb is an interactive, user-friendly Web-based application
that guides facilities through the TRI reporting process. As currently
implemented, one or more representatives from each facility must
establish an account with EPA's CDX in order to prepare, transmit,
certify, and submit TRI Forms. CDX is EPA's centralized node on the
Environmental Information Exchange Network that serves as EPA's main
mechanism for receiving and exchanging electronic information. A
facility representative may register for a CDX account or gain access
to an existing CDX account at https://cdx.epa.gov/.
    During the CDX registration process, CDX prompts the facility
representative to indicate which applications (e.g., TRI-MEweb) to link
with the account. If the facility representative has previously
registered with CDX for other purposes, then he/she can add TRI-MEweb
to his/her existing CDX account.
    When adding TRI-MEweb to the CDX account, CDX will ask the facility
representative to select a role as a form Preparer or Certifying
Official. Either a Preparer or a Certifying Official can enter a
facility's TRI data in TRI-MEweb and transmit it to CDX to await

certification; but only a Certifying Official can approve and certify a
TRI reporting form and submit the final, certified form to EPA using
TRI-MEweb and CDX. Preparers and Certifying Officials can potentially
perform their TRI reporting roles (preparing and/or certifying TRI
forms) for multiple facilities, if so designated by the facilities.
    EPA's current electronic reporting procedures require each
Certifying Official to sign and submit a hard-copy Electronic Signature
Agreement (ESA) to EPA before certifying any TRI reports. Once a
facility representative registers in CDX as a TRI-MEweb Certifying
Official, EPA sends an ESA to that representative via email. The ESA
includes a TRI Facility Identification number for each facility for
which the Certifying Official is responsible. The Certifying Official
must sign this ESA in hard-copy and mail it to the DPC. Upon receiving
an ESA, the Agency may take five to seven days to approve it. Once the
ESA is approved by EPA, the Certifying Official may review, certify,
and submit any pending TRI submissions to EPA using TRI-MEweb and CDX.
More detailed information on these procedures is available on the TRI
Web site.
    Once registered with CDX and TRI-MEweb, a facility's Preparer or
Certifying Official can gain access to TRI-MEweb through CDX. Once
opened, the TRI-MEweb application provides interactive Web pages that
enable a Preparer or Certifying Official to provide and validate the
current year's data. After providing the pertinent data, a Preparer (or
Certifying Official) can transmit the data electronically to CDX where
it is then available for certification by the facility's Certifying
Official(s). The Certifying Official can then log into CDX to review,
certify, and submit the TRI report to EPA. Once EPA receives the
certified report in CDX, the data are then sent to the TRI database
(and if appropriate, also to a state).
    Some TRI facilities have their own software or use private software
to assist in collecting chemical release data. This ``third-party
software'' is often designed to produce output data files that match
EPA's electronic data structure specifications. TRI-MEweb accepts
chemical data files from third-party software using Extensible Markup
Language (XML). Detailed information describing the XML schema TRI-
MEweb uses for the current reporting year is available online at http://www.exchangenetwork.net/exchanges/cross/tri.htm.
    Detailed instructions on using CDX and TRI-MEweb, including
tutorials, are available on the TRI Web site and in the RFI, which is
also available through the TRI Web site. Facilities may also contact
the TRI Information Center, the CDX Helpdesk, the TRI DPC, the Regional
TRI Coordinators, or the TRI Program staff at EPA Headquarters for
further assistance. Please see the ``Contact Us'' information located
on the TRI Web site for further details.
    Please note that the use of TRI-MEweb to report TRI data to EPA
does not necessarily satisfy all reporting requirements that a state or
local government might require. However, as will be explained below in
Unit III.G, ``What Benefits Will this Proposed Rule Likely Produce?,''
facilities that are located in states or territories (hereinafter
collectively referred to as ``states'') that actively participate with
the TRI Data Exchange (TDX) can meet dual-reporting requirements by
submitting TRI reports using TRI-MEweb. In these states, reports
submitted via TRI-MEweb are electronically made available to the state
in which the facility is located, thus satisfying the requirement to
report TRI data for both the applicable state and EPA.
    For facilities located in states not actively participating in TDX,
TRI-MEweb can provide these facilities with a certification statement
which the Certifying Official can sign and mail to the appropriate
state along with a diskette or hard copy of the TRI data the Preparer
or Certifying Official entered into TRI-MEweb.

E. Why is EPA proposing this requirement?

    Electronic reporting not only makes it easier for facilities to
prepare and submit their TRI data to EPA, it also helps EPA process and
make the data available to the public more quickly than is possible for
data submitted on paper forms. When facilities submit paper forms, EPA
must manually enter the data into the TRI electronic database, which
requires more time and staff resources than required to process
electronic submissions. In addition, transcription errors can
inadvertently be introduced during this process, particularly if the
data have been handwritten on the reporting forms. Electronic reporting
makes it possible for EPA to more quickly process the data and provide
communities with access to the latest TRI data on toxic chemical
releases and other waste management.
    Electronic reporting itself prevents transcription errors and
expedites TRI data processing; but in addition, TRI-MEweb, provides
useful features that make it easier and faster for facilities to
prepare and submit TRI data to EPA. For example, TRI-MEweb provides
facility representatives with access to a facility's prior years of
reporting data (as applicable), pre-populates selected fields on the
TRI forms (i.e., if the facility previously submitted a TRI report),
provides standardized parent company information and chemical pick-
lists, and automatically calculates the data for some numerical fields
on the TRI forms. TRI-MEweb also provides data validation features,
which help prevent facilities from submitting incomplete or invalid
data. Due to the benefits TRI-MEweb provides, EPA expects that its use
by all facilities will enhance data accuracy and expedite EPA's
processing and public release of the TRI data.
    This proposal to require electronic TRI reporting supports broader
government efforts to further the electronic collection and
dissemination of data and information, and it is consistent with the
provisions of the Government Paperwork Elimination Act (GPEA). GPEA
authorizes federal organizations to use electronic forms, electronic
filings, and electronic signatures, when practicable, to conduct
official business with the public.

F. How does this Proposed Rule affect revisions and withdrawals of
previous TRI submissions?

    This proposed rule would require facilities that wish to revise or
withdraw previously submitted non-confidential TRI data to do so
electronically. As part of this proposed rule, the Agency would
continue to allow facilities to revise or withdraw TRI reports going
back to RY 2005, but not for reporting years prior to RY2005. Moreover,
EPA would only accept revisions and/or withdrawals submitted via TRI-
MEweb. TRI-MEweb allows a facility to gain access to and revise or
withdraw TRI reports in TRI-MEweb for prior reporting years, back to RY
2005, even if the facility did not use TRI-MEweb for the original
submission.
    EPA proposes this RY 2005 cut off date for several reasons,
including (1) the small number of revisions/withdrawals received for
reporting years prior to RY 2005 (a relatively small proportion of TRI
form revisions/withdrawals are generally submitted to EPA each year,
and most of these revisions/withdrawals relate to TRI reports for the
past few years), (2) the resources that would be required to modify
TRI-MEweb and related information exchange capabilities to accommodate
all reporting reporting years, and (3) the staff resources and

time required to continue processing paper form revisions/withdrawals.
    As with original TRI submissions, preparing and submitting
revisions/withdrawals electronically should facilitate the reporting
process for facilities, while also making it possible for EPA to more
quickly process and make the updated data available to the public.
Information on using TRI-MEweb to submit TRI revisions/withdrawals is
available on the TRI Web site and in the TRI-MEweb application.
    In order to focus Agency resources on processing and making the
most recent TRI data available to the public and to maintain some
consistency in the handling of non-confidential and trade secret data,
EPA plans to accept paper submissions of trade secret revisions/
withdrawals that concern reporting years back to RY 2005.

G. What benefits will this proposed rule likely produce?

    Requiring facilities to report TRI data electronically will help
reduce the likelihood of data entry errors occurring at either the
facility or EPA, as well as reduce the amount of time it takes EPA to
process the data, when compared to paper-based submissions. By
requiring electronic reporting, the Agency will be able to more
effectively provide the public with timely access to the latest TRI
data on toxic chemical releases and other waste management within
communities.
    Another benefit electronic reporting provides is that TRI data
submitted via CDX is sent digitally to those states that participate in
the TRI Data Exchange (TDX). Since 2005, EPA has entered into separate
Memoranda of Agreements (MOA) with states that have elected to
participate in TDX. More information on TDX is available through the
TRI Web site.
    A facility located in a state that participates in TDX can satisfy
its requirement to report TRI data to both EPA and to the applicable
state by electronically submitting certified TRI data to EPA. These TRI
data are then automatically made available to the state within which
the facility is located.
    Under the proposed rule, facilities would be required to submit
their TRI data to EPA electronically; and therefore, those facilities
located in TDX-participating states would be able to satisfy the
requirement to submit federally-required TRI data to both the EPA and
the state with one electronic submission. Currently, if a facility
submits a paper report to EPA, even if it is located in a TDX-
participating state, the facility must also submit its TRI report
directly to the state to meet its legal reporting obligations.
Requiring the use of electronic reporting would make the state
processing of TRI data easier for TDX-participating states because they
would no longer need to process paper reporting forms for TRI data.
Facilities that are located in states that do not participate in TDX
would prepare and submit their TRI data to EPA using TRI-MEweb, and
they could then use TRI-MEweb to produce a certification statement,
along with a hard-copy TRI report or CD, which could be signed by the
Certifying Official and mailed to the appropriate state.

H. Would EPA offer any exceptions to the proposed requirements?

    The Agency expects facilities that submit TRI data to EPA to do so
electronically. Only trade secret TRI reports (including both sanitized
and unsanitized information) would still be submitted to EPA on paper
forms. EPA believes that the overall benefits of submitting TRI data
electronically exceed those associated with maintaining a paper-based
reporting approach. EPA recognizes that there could potentially be
unexpected initial set-up costs or technical challenges associated with
a requirement to submit TRI reports electronically, particularly for
facilities that have never used electronic reporting; however, the
Agency believes that the benefits of electronic reporting of TRI data--
considering the ease of reporting, enhanced data quality, and faster
public access to the data--would ultimately outweigh other
considerations.
    EPA also offers forms of assistance to TRI reporters looking for
help with electronic reporting. The Agency provides guidance on the TRI
Program Web site, maintains a TRI help desk, and offers webinars and
other training programs. Further, EPA believes nearly all facilities
can already access the Internet because the Agency stopped providing
physical copies of the TRI reporting forms in 2006, exclusively
thereafter offering the forms online and only mailing a physical copy
upon request.

I. What is EPA doing to help ensure facilities know about this proposed
rule?

    To inform facilities about this rulemaking and to solicit feedback
prior to publication of the proposed rule, EPA sent a letter via email
or postal carrier if an email address was not available to technical
contacts for facilities that submitted TRI data for RY 2009 and RY
2008. This letter notified these facilities that EPA was considering a
proposed rule to require the electronic reporting of TRI data and
informed the facilities of an online discussion forum where any
interested stakeholder could comment on EPA's plan to require
electronic reporting of TRI data. EPA recognizes the discussion forum
was provided electronically, which could bias the discussion toward
facilities with access to computers, so EPA explained in the letter
that facilities could physically mail comments to the Agency so that
the Agency could make these comments available on the discussion forum.
    The discussion forum went live on June 19, 2011, was accessible via
the TRI homepage, and stayed open through July 1, 2011, receiving 57
comments. Both the discussion forum and the comments received are
publically available for viewing in the docket for this rulemaking
(EPA-HQ-TRI-2011-0174). The comments received via the forum fall into
several broad categories: support for the proposed action; concerns
involving the online reporting tools, and concerns regarding requiring
electronic reporting.
    Comments supporting this action: Many of the comments received
support requiring electronic reporting of TRI data, noting electronic
reporting expedites the reporting process and improves data quality,
which, in turn, allows EPA to provide timely, accurate data to TRI data
users. Adding to this perspective were comments suggesting nearly all
TRI reporters likely have access to a computer and the Internet.
Additionally, some of the comments requested EPA to require states to
accept electronic submissions by mandating participation in the TRI
Data Exchange.
    Concerns involving the currently available reporting tools: EPA
received some comments, both supportive and critical of this
rulemaking, stating CDX and TRI-MEweb could be more intuitive. In
particular, many of these comments requested a simplification to the
process used to register a Certifying Official. Many comments also
expressed concern that the current process for registering a Certifying
Official, which typically takes about a week, can become a major
impediment to reporting before the yearly July 1 deadline should
managers become unavailable or should the facility change its
management in June.
    EPA recognizes there are situations where a facility could face
last-minute difficulties due to the current Certifying Official
registration process. However, facilities may submit TRI reports prior
to the deadline. In fact, TRI-MEweb for the reporting period is
typically made available in January, thereby providing facilities up to
six months to report TRI

data prior to the yearly July 1 deadline. Any facility that foresees an
upcoming change to its Certifying Official should be able to report
prior to the change. Moreover, the Agency encourages facilities to
designate an Alternate Certifying Official should the Certifying
Official become unavailable close to the reporting deadline. In most
situations either the Certifying Official or Alternate Certifying
Official should be available prior to the reporting deadline.
    It is important to note that the current process used to register
Certifying Officials is evolving. EPA wants to make reporting as simple
as possible, and, thus, is considering ways to simplify and expedite
the process. It is quite possible that a new process will become
available in the next year or two that will enable the near-
instantaneous registration of a Certifying Official.
    Comments also voiced concerns with various aspects of TRI-MEweb.
EPA improves TRI-MEweb each year and plans to address some of the
issues raised by comments. For example, changes anticipated for future
releases of TRI-MEweb include supporting more Web browsers, clarifying
the submittal process, and incorporating additional features into TRI-
MEweb to further expedite the reporting process. EPA plans to continue
addressing issues and improving TRI-MEweb for successive reporting
years.
    Concerns regarding requiring electronic reporting: A few comments
suggested the electronic reporting requirement should not extend to all
facilities, suggesting not all facilities have access to a computer and
the Internet. While EPA recognizes this possibility, EPA, as explained
above, does not foresee that facilities meeting TRI Reporting
thresholds will have difficulty accessing a computer and the Internet.
Further, due to the high percentage of facilities that already use TRI-
MEweb and the longstanding practice of providing the reporting forms
exclusively online, most facilities already appear to have access to a
computer and the Internet.
    Some of the comments requested EPA provide various exceptions
should a facility be unable to report using TRI-MEweb prior to the
yearly July 1 deadline. The Agency does not foresee the need for such
regulatory exceptions. EPCRA provides a yearly deadline of July 1, and
TRI-MEweb is typically available in January, which allows facilities
nearly six months to report the required TRI data. If facilities
encounter unexpected difficulties with electronic reporting, they may
use any one of the several help services EPA provides to assist
facilities in reporting TRI data.
    Several comments expressed a preference for paper reporting,
stating it is easier to report by paper, especially for facilities that
only submit one TRI reporting form to EPA. EPA understands in some
cases a facility might prefer a paper reporting option but EPA
believes, on the whole, electronic reporting will benefit facilities,
TRI data users, and the Agency for all of the reasons noted in this
proposed rule. Moreover, electronic reporting enables the Agency to
publish data sooner, minimizes paper waste, and reduces costs to the
Agency. At this point, EPA does not foresee a need to allow facilities
to submit paper reports of non-confidential TRI data.

IV. Request for Comment

    In connection with this proposed rule, EPA encourages all
interested persons to submit comments on the following topics or other
relevant topics:
    1. EPA specifically seeks comment on whether facilities foresee any
significant challenges in submitting RY 2012 TRI reports
electronically, and if so, how EPA could potentially facilitate the
process (e.g., through Webinars, Regional hands-on assistance, etc.).
    2. TRI-MEweb currently does not allow a facility to revise or
withdraw TRI reporting forms submitted for reporting years prior to RY
2005. The Agency proposes to begin requiring electronic reporting for
reporting year 2012, which means facilities would be able to modify
data submitted for the prior seven reporting years (RY 2011 through RY
2005), but not for reporting years 2004 through 1988. Historically,
only a small proportion of revision and withdrawal submissions received
each year pertain to reporting years beyond a seven-year period. EPA
seeks comment on whether limiting revisions to data submitted for
reporting years 2005 through the present would impose any hardship or
concerns.
    3. EPA does not foresee a need for an exception to an electronic-
reporting requirement. However, the Agency is interested in receiving
input on what exceptions, if any, might be appropriate in light of an
electronic reporting requirement.
    Input on these or other topics directly relevant to this proposed
rule will assist the Agency in developing a final rule that addresses
information needs, while minimizing the potential reporting burden
associated with the rule. EPA requests that those who submit comments
provide specific recommendations and include supporting documentation,
as appropriate.

V. References

    The following is a listing of the documents referenced in this
preamble that have been placed in the public docket for this proposed
rule under docket ID number EPA-HQ-TRI-2011-0174, which is available
for inspection as specified under ADDRESSES. For assistance in locating
any of these documents, please consult the technical person listed
under FOR FURTHER INFORMATION CONTACT.

1. EPA. Office of Environmental Information. Economic Analysis of
the Electronic Reporting Proposed Rule: Community Right-to-Know;
Toxic Chemical Release Reporting. July 7, 2011.
2. EPA. Request Facilities To Report Toxics Release Inventory
Information Electronically or Complete Fill-and-Print Reporting
Forms. Federal Register (76 FR 2677, January 14, 2011) (FRL-9251-2).
Available on-line at: http://www.regulations.gov.

VI. What are the statutory and executive order reviews associated with
this action?

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 (EO) 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

    This proposed action does not impose any new information collection
burden. Instead, this proposed action would merely change the manner in
which the Agency receives information.
    The Office of Management and Budget (OMB) has previously approved
the information collection requirements contained in the existing
regulations 40 CFR Part 372 under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned the following
OMB control numbers 2025-0009 (EPA Information Collection Request (ICR)
No. 1363.21) and 2050-0078 (EPA ICR No. 1428.08). The OMB control
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act 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.
    For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) 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.
    EPA conducted an economic analysis to consider the possible effects
of this rulemaking on small entities. This analysis, ``Economic
Analysis of the Electronic Reporting Proposed Rule: Community Right-to-
Know; Toxic Chemical Release Reporting'' (Ref. 1),
demonstrates this proposed rule should not create an economic burden on
an individual small business of more than 1% of its sales (or
equivalent metric) and, thus, will not have a significant adverse
impact on small businesses. After conducting this initial analysis,
however, EPA established a new methodology in order to increase
transparency and consistency in assessments of burden associated with
TRI reporting. (This new economic analysis methodology was recently
cleared by OMB as part of OMB's approval of the Information Collection
Request (ICR) (a Paperwork Reduction Act (PRA) requirement) which EPA
relies upon for collecting information under TRI). EPA has determined
that the amount of burden estimated for small entities in the economic
analysis is not affected by the previously noted change in burden
assessment methodology. As a result, and regardless of whether the
previous or current methodology is used, EPA is able to demonstrate
that this proposal would not have a significant impact on small
businesses.
    In summary, this proposed rule would create a one-time burden and a
minor subsequent burden for facilities that have not previously used
TRI-MEweb to submit TRI data to EPA. This burden would relate to
obtaining access to a computer and the Internet, designating a facility
form Preparer and Certifying Official, establishing an account in CDX,
and associating the CDX account with TRI-MEweb. The economic analysis
EPA prepared for this proposed rule which describes this burden in
detail is available under docket ID number EPA-HQ-TRI-2011-0174 as
Reference 1.
    After considering the economic impacts of this rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for state, local, and tribal
governments, in the aggregate, or the private sector in any one year.
This rule will merely require facilities under the TRI Program to
submit electronic reports using TRI-MEweb. Most facilities already
adhere to this requirement, thus this rule will affect a relatively
small number of facilities. Further, the cost to adhere to this rule is
small and, in aggregate, will not cost more than $100 million or more
for state, local, and tribal governments, or the private sectors in any
one year. Thus, this rule is not subject to the requirements of
sections 202 or 205 of the Unfunded Mandates Reform Act (UMRA).
    This rule 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. Any small
government that reports to the TRI Program will not incur significant
costs because the cost, if any, to report electronically, as described
above, is minimal.

E. Executive Order 13132, Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This action would require
facilities that submit annual reports under section 313 of EPCRA to do
so electronically, which 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. Thus, Executive Order 13132 does not
apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed action
from State and local officials.

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

    Under E.O. 13175, entitled Consultation and Coordination with
Indian Tribal Governments (65 FR 67249, November 9, 2000), EPA has
determined that this proposed rule does not have tribal implications
because it will not have substantial direct effects on tribal
governments, on the relationship between the Federal Government and the
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified in the
Executive Order. Instead, the rule merely affects how facilities report
information to the TRI Program. Thus, E.O. 13175 does not apply to this
proposed rule.

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

    EPA interprets E.O. 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 E.O. 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.

H. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.

    This action does not involve technical standards. Therefore, 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

    E.O. 12898 (59 FR 7629, Feb. 16, 1994) establishes Federal
executive policy on environmental justice. Its main provision directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
    EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. Instead, this rule would merely address the manner in
which regulated facilities submit reporting information.

List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements.

    Dated: February 23, 2012.
 Lisa P. Jackson,
Administrator.

    For the reasons set out in the preamble, Chapter I of Title 40 of
the Code of Federal Regulations is proposed to be amended as follows:

PART 372--[AMENDED]

    1. The authority citation for Part 372 continues to read as
follows:

    Authority:  42 U.S.C. 11023 and 11048.

    2. Section 372.85 is amended by adding paragraph (c) to read as
follows:

Sec.  372.85  Toxic chemical release reporting form and instructions.

* * * * *
    (c) Filing Requirements. Effective January 1, 2013, facilities that
report non-confidential TRI data, including revisions and withdrawals
of TRI data, to EPA must prepare, certify, and submit their data to EPA
electronically, using the most current version of the TRI online-
reporting software provided by EPA.
    (1) EPA will no longer accept non-confidential TRI reports,
revisions, or withdrawals on paper reporting forms, magnetic media, or
CD-ROMs. Information and instructions regarding online reporting are
available on the TRI Web site. The only exception to this TRI
electronic reporting requirement relates to trade secret TRI
submissions (including sanitized and unsanitized reporting forms),
which must be submitted to EPA on paper.
    (2) Facilities must submit electronically any revisions or
withdrawals of previously submitted TRI data. Facilities may only
revise or withdraw TRI data previously submitted for reporting years
2005 through the present reporting year.

[FR Doc. 2012-5264 Filed 3-2-12; 8:45 am]
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