
[Federal Register Volume 75, Number 129 (Wednesday, July 7, 2010)]
[Proposed Rules]
[Pages 39094-39132]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-16317]



[[Page 39093]]

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Part II





Environmental Protection Agency





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40 CFR Part 2



Proposed Confidentiality Determinations for Data Required Under the 
Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to 
Special Rules Governing Certain Information Obtained Under the Clean 
Air Act; Proposed Rule

  Federal Register / Vol. 75 , No. 129 / Wednesday, July 7, 2010 / 
Proposed Rules  

[[Page 39094]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

[EPA-HQ-OAR-2009-0924; FRL-9171-2]
RIN 2060-AQ04


Proposed Confidentiality Determinations for Data Required Under 
the Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to 
Special Rules Governing Certain Information Obtained Under the Clean 
Air Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to determine in this action the confidentiality 
status of data required to be reported under the Mandatory Greenhouse 
Gas Reporting Rule. This action describes the data categories EPA has 
developed for the Mandatory Greenhouse Gas Reporting Rule data elements 
and EPA's proposed confidentiality determination for each category. In 
addition, this action includes EPA's proposed amendment to Special 
rules governing certain information obtained under the Clean Air Act. 
The proposed amendment would authorize EPA to release or withhold as 
confidential reporting elements in the Mandatory Greenhouse Gas 
Reporting Rule according to the determinations made in a final action 
without taking certain additional procedural steps currently required. 
This action also solicits comments on several key issues related to the 
proposed confidentiality determinations and amendment.

DATES: Comments. Comments must be received on or before September 7, 
2010.
    Public Hearing. EPA does not plan to conduct a public hearing 
unless requested. To request a hearing, please contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section by July 14, 2010. 
The hearing will be held on July 22, 2010 in the Washington, DC area 
starting at 9 a.m., local time. EPA will provide further information 
about the hearing on its Web page if a hearing is requested.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0924, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     E-mail: GHGReportingCBI@epa.gov.
     Fax: (202) 566-1741.
     Mail: Environmental Protection Agency, EPA Docket Center 
(EPA/DC), Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2009-0924, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20004. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0924. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, 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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Docket, EPA/
DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. 
This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate Change Division, 
Office of Atmospheric Programs (MC-6207J), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 343-9263; fax number: (202) 343-2342; e-mail address: 
GHGMRR@epa.gov. For technical information, contact the Greenhouse Gas 
Reporting Rule Hotline at: http://www.epa.gov/climatechange/emissions/ghgrule_contactus.htm. Alternatively, contact Carole Cook at 202-343-
9263.

SUPPLEMENTARY INFORMATION: 
    Additional Information on Submitting Comments: To expedite review 
of your comments by Agency staff, you are encouraged to send a separate 
copy of your comments, in addition to the copy you submit to the 
official docket, to Carole Cook, U.S. EPA, Office of Atmospheric 
Programs, Climate Change Division, Mail Code 6207-J, Washington, DC, 
20460, telephone (202) 343-9263, e-mail GHGReportingCBI@epa.gov.
    Regulated Entities. This proposed determination and amendment to 40 
CFR 2.301 would affect entities that must submit annual greenhouse gas 
(GHG) reports under 40 CFR Part 98. The Administrator determined that 
Part 98 is subject to the provisions of Clean Air Act (CAA) section 
307(d). See CAA section 307(d)(1)(V) (the provisions of CAA section 
307(d) apply to ``such other actions as the Administrator may 
determine''). The Mandatory Greenhouse Gas Reporting Rule and this 
action affect fuel and chemicals suppliers, and direct emitters of 
GHGs. Affected categories and entities include those listed in Table 1 
of this preamble:

[[Page 39095]]



           Table 1--Examples of Affected Entities by Category
------------------------------------------------------------------------
                                                   Examples of affected
            Category                  NAICS             facilities
------------------------------------------------------------------------
General Stationary Fuel          ..............  Facilities operating
 Combustion Sources.                              boilers, process
                                                  heaters, incinerators,
                                                  turbines, and internal
                                                  combustion engines:
                                            211  Extractors of crude
                                                  petroleum and natural
                                                  gas.
                                            321  Manufacturers of lumber
                                                  and wood products.
                                            322  Pulp and paper mills.
                                            325  Chemical manufacturers.
                                            324  Petroleum refineries,
                                                  and manufacturers of
                                                  coal products.
                                  316, 326, 339  Manufacturers of rubber
                                                  and miscellaneous
                                                  plastic products.
                                            331  Steel works, blast
                                                  furnaces.
                                            332  Electroplating,
                                                  plating, polishing,
                                                  anodizing, and
                                                  coloring.
                                            336  Manufacturers of motor
                                                  vehicle parts and
                                                  accessories.
                                            221  Electric, gas, and
                                                  sanitary services.
                                            622  Health services.
                                            611  Educational services.
Electricity Generation.........          221112  Fossil-fuel fired
                                                  electric generating
                                                  units, including units
                                                  owned by Federal and
                                                  municipal governments
                                                  and units located in
                                                  Indian Country.
Adipic Acid Production.........          325199  Adipic acid
                                                  manufacturing
                                                  facilities.
Aluminum Production............          331312  Primary Aluminum
                                                  production facilities.
Ammonia Manufacturing..........          325311  Anhydrous and aqueous
                                                  ammonia manufacturing
                                                  facilities.
Cement Production..............          327310  Portland Cement
                                                  manufacturing plants.
Electronics Manufacturing......          334111  Microcomputers
                                                  manufacturing
                                                  facilities.
                                         334413  Semiconductor,
                                                  photovoltaic (solid-
                                                  state) device
                                                  manufacturing
                                                  facilities.
                                         334419  LCD unit screens
                                                  manufacturing
                                                  facilities.
                                 ..............  MEMS manufacturing
                                                  facilities.
Ethanol Production.............          325193  Ethyl alcohol
                                                  manufacturing
                                                  facilities.
Ferroalloy Production..........          331112  Ferroalloys
                                                  manufacturing
                                                  facilities.
Fluorinated GHG Production.....          325120  Industrial gases
                                                  manufacturing
                                                  facilities.
Food Processing................          311611  Meat processing
                                                  facilities.
                                         311411  Frozen fruit, juice,
                                                  and vegetable
                                                  manufacturing
                                                  facilities.
                                         311421  Fruit and vegetable
                                                  canning facilities.
Glass Production...............          327211  Flat glass
                                                  manufacturing
                                                  facilities.
                                         327213  Glass container
                                                  manufacturing
                                                  facilities.
                                         327212  Other pressed and blown
                                                  glass and glassware
                                                  manufacturing
                                                  facilities.
HCFC-22 Production and HFC-23            325120  Chlorodifluoromethane
 Destruction.                                     manufacturing
                                                  facilities.
Hydrogen Production............          325120  Hydrogen manufacturing
                                                  facilities.
Iron and Steel Production......          331111  Integrated iron and
                                                  steel mills, steel
                                                  companies, sinter
                                                  plants, blast
                                                  furnaces, basic oxygen
                                                  process furnace shops.
Lead Production................          331419  Primary lead smelting
                                                  and refining
                                                  facilities.
                                         331492  Secondary lead smelting
                                                  and refining
                                                  facilities.
Lime Production................          327410  Calcium oxide, calcium
                                                  hydroxide, dolomitic
                                                  hydrates manufacturing
                                                  facilities.
Magnesium Production...........          331419  Primary refiners of
                                                  nonferrous metals by
                                                  electrolytic methods.
                                         331492  Secondary magnesium
                                                  processing plants.
Municipal Solid Waste Landfills          562212  Solid waste landfills.
                                         221320  Sewage treatment
                                                  facilities.
Nitric Acid Production.........          325311  Nitric acid
                                                  manufacturing
                                                  facilities.
Petroleum and Natural Gas                486210  Pipeline transportation
 Systems.                                         of natural gas.
                                         221210  Natural gas
                                                  distribution
                                                  facilities.
                                            211  Extractors of crude
                                                  petroleum and natural
                                                  gas.
                                         211112  Natural gas liquid
                                                  extraction facilities.
Petrochemical Production.......           32511  Ethylene dichloride
                                                  manufacturing
                                                  facilities.
                                         325199  Acrylonitrile, ethylene
                                                  oxide, methanol
                                                  manufacturing
                                                  facilities.
                                         325110  Ethylene manufacturing
                                                  facilities.
                                         325182  Carbon black
                                                  manufacturing
                                                  facilities.
Petroleum Refineries...........          324110  Petroleum refineries.
Phosphoric Acid Production.....          325312  Phosphoric acid
                                                  manufacturing
                                                  facilities.
Pulp and Paper Manufacturing...          322110  Pulp mills.
                                         322121  Paper mills.
                                         322130  Paperboard mills.
Silicon Carbide Production.....          327910  Silicon carbide
                                                  abrasives
                                                  manufacturing
                                                  facilities.
Soda Ash Manufacturing.........          325181  Alkalies and chlorine
                                                  manufacturing
                                                  facilities.
                                         212391  Soda ash, natural,
                                                  mining and/or
                                                  beneficiation.
Sulfur Hexafluoride (SF6) from           221121  Electric bulk power
 Electrical Equipment.                            transmission and
                                                  control facilities.
Titanium Dioxide Production....          325188  Titanium dioxide
                                                  manufacturing
                                                  facilities.
Underground Coal Mines.........          212113  Underground anthracite
                                                  coal mining
                                                  operations.
                                         212112  Underground bituminous
                                                  coal mining
                                                  operations.
Zinc Production................          331419  Primary zinc refining
                                                  facilities.
                                         331492  Zinc dust reclaiming
                                                  facilities, recovering
                                                  from scrap and/or
                                                  alloying purchased
                                                  metals.
Industrial Landfills...........          562212  Solid waste landfills.
                                         221320  Sewage treatment
                                                  facilities.

[[Page 39096]]

 
                                         322110  Pulp mills.
                                         322121  Paper mills.
                                         322122  Newsprint mills.
                                         322130  Paperboard mills.
                                         311611  Meat processing
                                                  facilities.
                                         311411  Frozen fruit, juice,
                                                  and vegetable
                                                  manufacturing
                                                  facilities.
                                         311421  Fruit and vegetable
                                                  canning facilities.
Wastewater Treatment...........          322110  Pulp mills.
                                         322121  Paper mills.
                                         322122  Newsprint mills.
                                         322130  Paperboard mills.
                                         311611  Meat processing
                                                  facilities.
                                         311411  Frozen fruit, juice,
                                                  and vegetable
                                                  manufacturing
                                                  facilities.
                                         311421  Fruit and vegetable
                                                  canning facilities.
                                         325193  Ethanol manufacturing
                                                  facilities.
Suppliers of Coal Based Liquids          211111  Coal liquefaction at
 Fuels.                                           mine sites.
Suppliers of Petroleum Products          324110  Petroleum refineries.
Suppliers of Natural Gas and             221210  Natural gas
 NGLs.                                            distribution
                                                  facilities.
                                         211112  Natural gas liquid
                                                  extraction facilities.
Suppliers of Industrial GHGs...          325120  Industrial gas
                                                  manufacturing
                                                  facilities.
Suppliers of Carbon Dioxide              325120  Industrial gas
 (CO2).                                           manufacturing
                                                  facilities.
CO2 ER Projects................             211  Oil and Gas Extraction
                                                  Projects using CO2 ER.
GS Sites.......................             N/A  CO2 geologic
                                                  sequestration
                                                  projects.
------------------------------------------------------------------------

    Table 1 of this preamble is not intended to be exhaustive, but 
rather provides a guide for readers regarding facilities likely to be 
affected by this action. This table lists the types of facilities that 
EPA is now aware could be potentially affected by the reporting 
requirements under 40 CFR part 98. Other types of facilities and 
suppliers not listed in the table could also be subject to reporting 
requirements. To determine whether you are affected by this action, you 
should carefully examine the applicability criteria found in 40 CFR 
part 98, subpart A. If you have questions regarding the applicability 
of this action to a particular facility, consult the person listed in 
the preceding FOR FURTHER INFORMATION CONTACT section.
    Many facilities that are affected by Part 98 have GHG emissions 
from multiple source categories listed in Table 1 of this preamble.
    Acronyms and Abbreviations. The following acronyms and 
abbreviations are used in this document.

BAMM Best Available Monitoring Methods
CAA Clean Air Act
CBI confidential business information
CEMS continuous emission monitoring system(s)
CFR Code of Federal Regulations
DoE Department of Energy
EPCRA Emergency Planning and Community Right to Know Act
EIA Energy Information Administration
EO Executive Order
EOR enhanced oil recovery
EPA U.S. Environmental Protection Agency
GHG greenhouse gas
FOIA Freedom of Information Act
HHV higher heating value
LDC local distribution company
MRV Monitoring, Reporting, and Verification
Mscf thousand standard cubic feet
NEI National Emissions Inventory
NAICS North American Classification System
RFA Regulatory Flexibility Act
SCC Source Classification Code
SIC Standard Industrial Classification Code
TRI Toxics Release Inventory
UMRA Unfunded Mandates Reform Act
U.S. United States

Table of Contents

I. Executive Summary, Background, and General Rationale
    A. Executive Summary
    B. 40 CFR Part 98
    C. Section 114 of CAA, ``Emission Data,'' and Confidentiality
    D. Rationale for Making Confidentiality Determinations Through 
This Action
    E. Proposed Rule Amendment Addressing Treatment of Part 98 Data 
Elements
    F. Other Relevant Background
    G. Public Comments on the Proposed Mandatory GHG Reporting Rule
II. Proposed Emission Data and Confidentiality Determinations for 
Data Required by the Mandatory GHG Reporting Rule in Part 98
    A. Overview
    B. Request for Comments
    C. Direct Emitting Facilities
    D. Suppliers
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
IV. Next Steps

I. Executive Summary, Background, and General Rationale

A. Executive Summary

    Under Part 98 of the final Mandatory Greenhouse Gas Reporting Rule 
(74 FR 56259, October 30, 2009, and subsequent amendments), hereinafter 
referred to as Part 98, EPA will collect data from facilities that 
directly emit GHGs from their processes or stationary fuel combustion 
sources (``direct emitters'') as well as upstream suppliers of fuels 
and industrial GHGs. EPA recognizes the importance of this data and is 
committed to transparency and access to this data. Specific data 
elements to be reported in the annual reports vary by source category, 
and considering the combination of all source categories, there are 
over 1,500 individual data elements that are required to be reported in 
annual reports. In addition to the data elements required in annual 
reports, facilities may also submit other data elements as part of Best 
Available Monitoring

[[Page 39097]]

Method (BAMM) extension requests, requests for approval of alternative 
methods for adipic acid or nitric acid production facilities, or 
Monitoring, Reporting and Verification (MRV) Plans for Geological 
Sequestration facilities (see proposed 40 CFR part 98, subpart RR, 75 
FR 18576, April 12, 2010).
    This action proposes to determine the confidentiality status of the 
data elements required to be reported under Part 98 pursuant to CAA 
section 114(c).\1\ To make the proposed determinations, EPA has grouped 
the Part 98 data elements into 22 data categories (11 for direct 
emitters and 11 for suppliers), each containing similar data elements. 
The proposed determinations regarding confidential treatment of each 
data category are summarized in Table 2 of this preamble for direct 
emitters and Table 3 of this preamble for suppliers. Further 
background, information on EPA's decision process, and detailed 
rationales for the proposed determinations for each data category are 
presented in the remainder of this preamble. Public release of the 
information collected under Part 98 that are emission data or non-CBI 
is important because it ensures transparency and promotes public 
confidence in the data. In an effort to promote transparency, EPA 
intends to publish on EPA's Web site much of the Part 98 data that we 
determine to be emission data or not otherwise entitled to confidential 
treatment pursuant to CAA section 114(c). Those data elements that we 
determine to be entitled to confidential treatment would not be 
published on the Web site or made available to the public through 
Freedom of Information Act (FOIA) requests.
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    \1\ The only exception would be supporting documentation 
provided by applicants for approval of alternative methods for 
adipic acid and nitric acid facilities. EPA recognizes that 
supporting documentation included in these applications may include 
information that is sensitive or proprietary, such as detailed 
process designs or site plans. Because the exact nature of this 
documentation cannot be predicted with certainty, EPA proposes to 
make case-by-case confidentiality determinations under CAA section 
114(c) for any supporting documentation for approval of alternative 
methods for adipic acid and nitric acid facilities claimed 
confidential by applicants either upon receipt of such information 
or upon a request for such information after receipt.

                 Table 2--Summary of Proposed Determinations for Direct Emitter Data Categories
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                                                                Proposed confidentiality determination for data
                                                                           elements in each category
                                                              --------------------------------------------------
                        Data category                                            Data that are    Data that are
                                                                   Emission       not emission     not emission
                                                                   Data\a\        data and not     data but are
                                                                                      CBI            CBI \b\
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Facility and Unit Identifier Information.....................               X   ...............  ...............
Emissions....................................................               X   ...............  ...............
Inputs to Emission Equations.................................               X   ...............  ...............
Calculation Methodology and Methodological Tier..............               X   ...............  ...............
Data Elements Reported for Periods of Missing Data that are                 X   ...............  ...............
 Not Inputs to Emission Equations............................
Unit/Process ``Static'' Characteristics that are Not Inputs    ...............               X
 to Emission Equations.......................................
Unit/Process Operating Characteristics that are Not Inputs to  ...............               X   ...............
 Emission Equations..........................................
Test and Calibration Methods.................................  ...............               X   ...............
Production/Throughput Data that are Not Inputs to Emission     ...............  ...............               X
 Equations...................................................
Raw Materials Consumed that are Not Inputs to Emission         ...............  ...............               X
 Equations...................................................
Process-specific and Vendor Data Submitted in BAMM Extension   ...............  ...............               X
 Requests....................................................
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\a\ Under CAA section 114, ``emission data'' is not entitled to confidential treatment. See Section I.C of this
  preamble for further discussion.
\b\ As explained in more detail in Section I.C of the preamble, CAA section 114(c) affords confidential
  treatment to data (except emission data) that are considered trade secret or confidential business information
  (collectively referred to as ``CBI'').


                    Table 3--Summary of Proposed Determinations for Supplier Data Categories
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                                                                Proposed confidentiality determinations for data
                                                                           elements in each category
                                                              --------------------------------------------------
                        Data category                                            Data that are    Data that are
                                                                Emission data     not emission     not emission
                                                                     \a\          data and not     data but are
                                                                                      CBI             CBI\b\
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GHGs reported................................................  ...............            \c\X             \c\X
Production/throughput quantities and composition.............  ...............            \c\X             \c\X
Identification information...................................  ...............               X   ...............
Unit/process operating characteristics.......................  ...............            \d\X   ...............
Calculation, test, and calibration methods...................  ...............               X   ...............
Data Elements Reported for Periods of Missing data that are    ...............               X   ...............
 not related to production/throughput or materials received..
Emission factors.............................................  ...............  ...............               X
Amount and composition of materials received.................  ...............  ...............               X
Data Elements Reported for Periods of Missing data that are    ...............  ...............               X
 related to production/throughput or materials received......
Supplier customer and vendor information.....................  ...............  ...............               X
Process-Specific and Vendor Data Submitted in BAMM Extension   ...............  ...............               X
 Requests....................................................
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\a\ Under CAA section 114, ``emission data'' is not entitled to confidential treatment. See Section I.C of this
  preamble for further discussion.
\b\ As explained in more detail in Section I.C of the preamble, CAA section 114(c) affords confidential
  treatment to data (except emission data) that are considered trade secret or confidential business information
  (collectively referred to as ``CBI'').

[[Page 39098]]

 
\c\ EPA proposes to determine that some facility-level and product-specific data elements in this data category
  are entitled to confidential treatment while others are not entitled to confidential treatment. Such data
  elements would be released only in aggregated form. See Table 4 and 5 in Section II.D of this preamble for
  summaries of the proposed confidential determinations and levels of aggregation (for disclosure purposes) for
  these data categories.
\d\ Reported data will be released except for one reported data element for suppliers of industrial GHGs (40 CFR
  part 98, subpart OO) that will be held confidential. See Section II.D.5 of this preamble.

    In this action, EPA is also proposing a regulatory amendment to 40 
CFR 2.301 (Special rules governing certain information obtained under 
the Clean Air Act) that sets forth specific procedures for handling 
Part 98 data. The amendment would allow EPA to release Part 98 data 
that are determined to be emission data or not otherwise entitled to 
confidential treatment upon finalizing the confidentiality status of 
these data. The proposed amendment also sets forth procedures for 
treatment of Part 98 data determined to be CBI. The proposed amendment 
pertains only to Part 98.
    Lastly, EPA is soliciting comment on several key issues related to 
the confidentiality determinations and proposed amendments, such as 
whether the proposed data categories are appropriate and reasonable, 
whether there are unique circumstances that would warrant a limited 
process for a facility to seek reconsideration of a final determination 
of non-confidential status when it submits its information, whether 
alternative interpretations of emission data would be appropriate, and 
whether there are any approaches for delaying publication of data 
elements that would ease potential concerns by industry while enabling 
EPA to meet our obligations under FOIA and CAA.

B. 40 CFR Part 98

    Part 98 requires reporting of numerous data elements to 
characterize, quantify, and verify GHG emissions and related 
information. Following proposal of Part 98, EPA received comments 
addressing the issue of whether certain data could be entitled to 
confidential treatment. Industry commenters generally expressed concern 
that they consider much of the information reported under the rule to 
be confidential (e.g., production and process data). Some commenters 
also presented arguments regarding why certain information would not be 
``emission data'' under the CAA. Other commenters favored the wide 
dissemination of information, and some argued that all of the 
information gathered under Part 98 should be ``emission data'' and 
hence not entitled to confidential treatment. In response to these 
comments, EPA stated in the preamble to the final rule (74 FR 56287, 
October 30, 2009), that through a notice and comment process, it would 
establish those data elements that are entitled to confidential 
treatment.
    The Mandatory GHG Reporting Rule was promulgated under the 
authority of CAA sections 114(a) (for stationary sources) and 208 (for 
motor vehicle and engine manufacturers).\2\ Today's proposed action 
addresses the confidentiality of the data elements codified in 40 CFR 
part 98.
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    \2\ The vehicle manufacturing requirements are found in 40 CFR 
parts 86, 87, 89, 90, 94, 1033, 1039, 1042, 1045, 1048, 1051, 1054, 
and 1065. The data collected under those parts are not included in 
this notice. This proposed CBI determination applies only to the 
data collected under 40 CFR part 98.
---------------------------------------------------------------------------

    Several subparts of Part 98 were published on October 30, 2009 (74 
FR 56374). EPA intends to finalize additional source category subparts 
during calendar year 2010. Today's action covers data elements that 
will be reported under the subparts that were finalized in 2009, data 
elements in subparts that are expected to be finalized in 2010, and 
data elements in proposed amendments to Part 98 that are expected to be 
finalized in 2010. Specifically, the action covers the following data 
elements:
    (1) Data required by 40 CFR part 98, subpart A and other subparts 
promulgated in 2009. Today's action includes the data elements required 
by 40 CFR part 98, subpart A and other subparts that were published on 
October 30, 2009. This includes the data elements required to be 
reported in annual reports under the following subparts of Part 98:
     Subpart A, General Provisions;
     Subpart C, General Stationary Fuel Combustion Sources;
     Subpart D, Electricity Generation;
     Subpart E, Adipic Acid Production;
     Subpart F, Aluminum Production;
     Subpart G, Ammonia Manufacturing;
     Subpart H, Cement Production;
     Subpart K, Ferroalloy Production;
     Subpart N, Glass Production;
     Subpart O, HCFC-22 Production and HFC-23 Destruction;
     Subpart P, Hydrogen Production;
     Subpart Q, Iron and Steel Production;
     Subpart R, Lead Production;
     Subpart S, Lime Manufacturing;
     Subpart U, Miscellaneous Uses of Carbonate;
     Subpart V, Nitric Acid Production;
     Subpart X, Petrochemical Production;
     Subpart Y, Petrochemical Production;
     Subpart Z, Phosphoric Acid Production;
     Subpart AA, Pulp and Paper Manufacturing;
     Subpart BB, Silicon Carbide Production;
     Subpart CC, Soda Ash Manufacturing;
     Subpart EE, Titanium Dioxide Production;
     Subpart GG, Zinc Production;
     Subpart HH, Municipal Solid Waste Landfills;
     Subpart JJ, Manure Management; \3\
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    \3\ EPA will not be implementing 40 CFR part 98, subpart JJ due 
to a Congressional restriction prohibiting the expenditure of funds 
for this purpose. As a result, 40 CFR part 98, subpart JJ is not 
included in the scope of this notice.
---------------------------------------------------------------------------

     Subpart LL, Suppliers of Coal-based Liquid Fuels;
     Subpart MM, Suppliers of Petroleum Products;
     Subpart NN, Suppliers of Natural Gas and Natural Gas 
Liquids;
     Subpart OO, Suppliers of Industrial Greenhouse Gases; and
     Subpart PP, Suppliers of Carbon Dioxide.
    In addition, the action covers data required to be submitted in 
BAMM extension requests and requests from adipic acid and nitric acid 
facilities for approval of alternative monitoring methods. Although 
amendments may be made during 2010 to further clarify some of these 
data elements, we expect that any amended data element would still 
logically fall into the same or another data category that is addressed 
in this action and is therefore covered by the confidentiality 
determination for that data category. In the final confidentiality 
determination, EPA will address any revised data elements within these 
subparts that have been amended prior to the publication of the final 
confidentiality determination.
    (2) Data required by subparts that are being finalized in a 
separate action published today. These subparts include the following 
subparts from Part 98:
     Subpart FF, Underground Coal Mines;
     Subpart T, Magnesium Production;
     Subpart TT, Industrial Landfills; and
     Subpart II, Wastewater Treatment.

[[Page 39099]]

    (3) Data required by subparts that have recently been proposed or 
re-proposed but not yet finalized. Earlier this year, EPA proposed or 
re-proposed several source category subparts that were not included in 
the October 30, 2009 final rule. These include data elements to be 
reported in the annual reports and data elements to be included in 
other documents required to be submitted to EPA (e.g., data elements 
included in MRV Plans for geological sequestration facilities (proposed 
40 CFR part 98, subpart RR, 75 FR 18576, April 12, 2010). These 
subparts are as follows:
     Subpart I, Electronics Manufacturing (75 FR 18652, April 
12, 2010);
     Subpart L, Fluorinated Gas Production (75 FR 18652, April 
12, 2010);
     Subpart W, Petroleum and Natural Gas Systems (75 FR 18608, 
April 12, 2010);
     Subpart DD, Sulfur Hexafluoride (SF6) and 
Perfluorocarbons (PFCs) from Electrical Equipment at an Electric Power 
System (75 FR 18652, April 12, 2010);
     Subpart RR, Injection and Geologic Sequestration of Carbon 
Dioxide (75 FR 18576, April 12, 2010);
     Subpart SS, Sulfur Hexafluoride and PFCs from Electrical 
Equipment Manufacture or Refurbishment (75 FR 18652, April 12, 2010);
     Subpart QQ, Importers and Exporters of Fluorinated 
Greenhouse Gases Contained in Pre-charged Equipment or Closed-cell 
Foams (75 FR 18652, April 12, 2010).
    EPA expects to finalize these subparts in 2010. Today's proposed 
confidentiality determination covers these data elements based on the 
proposed (and re-proposed) subparts. Although the data elements in 
these subparts, when finalized, may not be exactly the same as those in 
the proposed subparts, we expect that any revised or refined data 
element in the relevant final subpart would still logically fall into 
the same or another data category that is addressed in this action and 
would therefore be covered by the confidentiality determination for 
that data category. EPA will address such data elements in the final 
confidentiality determination.
    (4) Data required by the proposed amendment to 40 CFR part 98, 
subpart A (75 FR 18455, April 12, 2010). The proposed amendment to 40 
CFR part 98, subpart A would require reporting of parent company and 
other ownership information, North American Classification System 
(NAICS) codes, and operation of cogeneration units. Today's proposed 
confidentiality determination covers the data elements as proposed on 
April 12, 2010. Although the data elements in the final amendment to 40 
CFR part 98, subpart A may not be exactly the same as they were in the 
proposed amendment, we expect that any revised or refined data element 
in the final amendment would still logically fall into the same or 
another data category that is already addressed in this action and 
would therefore be covered by the final confidentiality determination 
for that category. EPA will address such data elements in the final 
confidentiality determination.
    (5) Data required by the proposed Technical Corrections, Clarifying 
and Other Amendments to Certain Provisions of the Greenhouse Gas 
Reporting Rule (signed May 27, 2010). The proposed amendments would 
correct technical and editorial errors, and would correct data 
reporting requirements so that they more closely conform to the 
information used to perform emission calculations. The reporting 
requirements from the following Part 98 subparts are affected by these 
proposed amendments:
     Subpart E, Adipic Acid Production;
     Subpart H, Cement Production;
     Subpart K, Ferroalloy Production;
     Subpart N, Glass Production;
     Subpart O, HCFC-22 Production and HFC-23 Destruction;
     Subpart P, Hydrogen Production;
     Subpart Q, Iron and Steel Production;
     Subpart S, Lime Manufacturing;
     Subpart V, Nitric Acid Production;
     Subpart Z, Phosphoric Acid Production;
     Subpart CC, Soda Ash Manufacturing;
     Subpart EE, Titanium Dioxide Production;
     Subpart GG, Zinc Production;
     Subpart HH, Municipal Solid Waste Landfills;
     Subpart LL, Suppliers of Coal-based Liquid Fuels;
     Subpart MM, Suppliers of Petroleum Products; and
     Subpart NN, Suppliers of Natural Gas and Natural Gas 
Liquids.
    EPA expects to publish the proposed amendments after receiving and 
addressing public comments. Although the data elements in the final 
amendments may not be exactly the same as they were in the proposed 
amendments, we expect that any revised or refined data element in the 
final amendments would still logically fall into the same or another 
data category that is already addressed in this action and would 
therefore be covered by the final confidentiality determination for 
that category. EPA will address such data elements in the final 
confidentiality determination.
    Publication of Data. As previously mentioned, EPA is committed to 
transparency and intends to publish on EPA's Web site much of the Part 
98 data that is submitted; however, we are not publishing data elements 
that are CBI.
    Public release of the information collected under Part 98 that are 
emission data or non-CBI is important because it ensures transparency 
and promotes public confidence in the data. For example, facility 
identification data (e.g., name and physical address of a direct 
emitter) allows the public to identify which facilities are emitting 
GHGs and how much they are emitting. This information is useful for 
comparing the GHG emissions of different facilities and for evaluating 
changes in a facility's GHG emissions over time. Comparisons of 
facility-specific data will improve our understanding of the factors 
that influence GHG emission rates and actions facilities could in the 
future or already take to reduce emissions. By tracking changes in 
facility-specific data, EPA and other stakeholders will be able to 
track trends in GHG emissions from industries and facilities over time 
and assess responses to policies and potential regulations. Information 
on unit characteristics and operations are valuable to policy makers, 
the public, and industry because they improve our understanding of the 
sources of emissions and the relationship between process operating 
characteristics and emissions. The number of times substitute data are 
used in place of measured parameters, methods used to calculate 
emissions, methods used to determine the composition of materials, and 
the frequency of calibrating measurement devices are all valuable for 
evaluating the quality of the reported data. These data are also 
important to the GHG verification checks.
    Data submitted by suppliers are needed by EPA and other users of 
the reported data to help develop policies that could affect sources 
under a variety of CAA provisions. For example, the geographic 
distribution of suppliers of various fuel types and industrial GHGs may 
prove useful in evaluating the impact of transportation distances and 
transportation emissions on the feasibility and effectiveness of 
different GHG control strategies. These may include regulatory and 
nonregulatory strategies and technologies for preventing or reducing 
air pollutants, such as energy conservation, end-use efficiency, and 
fuel- or raw-material switching.

[[Page 39100]]

    This is not a comprehensive listing of all the ways the information 
collected under Part 98 is valuable to EPA and others, but it 
illustrates the importance of making available to the public data that 
are not entitled to confidential treatment under CAA section 114(c). 
Such disclosure is required under CAA section 114(c).
    Given the importance of this data, we are publishing data elements 
that are emission data or are determined to be not CBI. For those 
limited data that are CBI, EPA intends to publish the data only where 
they can be aggregated in a manner to protect the confidentiality of 
these data elements. There are a number of different formats in which 
both CBI and non-CBI data could be published using tables, graphs, 
charts, and other graphical methods. For example, EPA could publish 
tables or bar charts showing the emission data for individual 
facilities to allow comparison of data between facilities within a 
source category. Alternatively, EPA could publish pie charts of 
emission data by source category or by geographical region to allow 
easy comparison of data between different industry sectors or 
locations. EPA is interested in receiving suggestions on formats for 
presenting both CBI and non-CBI data that would be most useful to the 
public. We are specifically soliciting suggestions on approaches to 
aggregating CBI data that would provide useful information to the 
public without disclosing data determined to be CBI. We are also 
soliciting comment on the value of publishing facility-level CBI data 
elements within numerical ranges that maintain the confidentiality of 
the actual reported values. Specifically, we are soliciting comment on 
whether publishing ranges of values at the facility-level would provide 
valuable information that aggregated data may not convey.

C. Section 114 of CAA, ``Emission Data,'' and Confidentiality

    Section 114(c) of CAA requires that ``[a]ny records, reports, or 
information obtained under [CAA section 114(a)] shall be available to 
the public, except that upon a showing satisfactory to the 
Administrator by any person that records, reports, or information, or 
particular part thereof, (other than emission data) * * * if made 
public, would divulge methods or processes entitled to protection as 
trade secrets * * *, the Administrator shall consider such record, 
report, or information or particular portion thereof confidential * * 
*.'' EPA has interpreted CAA section 114(c) to afford confidential 
treatment to both trade secrets and confidential business information 
(hereinafter collectively referred to as ``CBI'') (40 FR 21987, 21990 
(May 20, 1975)). Section 114(c) of CAA precludes ``emission data'' from 
being considered confidential and requires that such data be available 
to the public.
    Pursuant to CAA section 114(c), EPA proposes to determine the 
confidentiality status of data that are required to be reported under 
Part 98. As described in more detail in Section II.A of this preamble, 
EPA has grouped Part 98 data into 22 separate data categories and 
proposes to determine the confidentiality status of Part 98 data on a 
category basis. There are 11 categories of direct emitter data and 11 
categories of supplier data. For the list of all 22 data categories and 
brief descriptions of the data elements within each category, please 
see Section II.C of this preamble for direct emitter data categories 
and Section II.D of this preamble for supplier data categories.
    In making the confidentiality determination, EPA first examined, on 
a data category basis, whether the data elements constituted ``emission 
data'' under CAA section 114(c). Specifically, EPA examined whether the 
data elements in a given category met the definition of ``emission 
data'' at 40 CFR 2.301(a)(2)(i), which is as follows:
    Emission data means, with reference to any source of emission of 
any substance into the air--
    (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).
    With respect to the 11 categories of direct emitter data, because 
there are no established GHG emission limits for the facilities subject 
to Part 98, EPA finds that 2.301(a)(2)(i)(B), which addresses emissions 
that sources are authorized to emit, does not apply. EPA focused its 
analysis on whether the data elements in a given direct emitter 
category met the emission data definitions at 2.301(a)(2)(i)(A) or (C). 
EPA proposes to determine that the data in a direct emitter data 
category qualify as ``emission data'' if they are necessary to 
determine the identity, amount, frequency, or concentration of the 
emission emitted by the reporting facilities. See 40 CFR 
2.301(a)(2)(i)(A). As discussed in more detail in Sections II.C.2 
through II.C.6 of this preamble, EPA proposes to determine that the GHG 
emissions to be reported by direct emitters, as well as those data that 
are required to perform the emissions calculations specified in the 
direct emitter subparts (i.e., inputs to equations/calculations as well 
as information otherwise needed to calculate or determine emissions), 
meet the definition of ``emission data'' at 40 CFR 2.301(a)(2)(i)(A). 
In addition, EPA proposes to determine that locational and other 
identifying information regarding the emitting sources (i.e., the data 
elements in the direct emitter facility and unit identifier information 
category) are emission data because these data describe a reporting 
emitting source's location and other identifying information that help 
distinguish the source from other sources. See 40 CFR 
2.301(a)(2)(i)(C).
    With respect to the data elements in the remaining direct emitter 
data categories, EPA proposes to determine that they are not ``emission 
data'' under 40 CFR 2.301(a)(2)(i) for purposes of determining the GHG 
emissions required to be reported by direct emitters under Part 98. 
These data elements are in the following direct emitter data 
categories:
     Unit/process ``static'' characteristics that are not 
inputs to equations.
     Unit/process operating characteristics that are not inputs 
to equations.
     Test and calibration methods.
     Production/throughput data that are not inputs to emission 
equations.
     Raw materials consumed that are not inputs to emission 
equations.
     Process-Specific and Vendor Data Submitted in BAMM 
Extension Requests.
    Part 98 sets forth in relevant subparts the specific methods and 
equations for calculating direct emitters' GHG emissions. Direct 
emitters' GHG emissions can be (and must be) calculated by inputting 
the necessary data elements into the relevant equations (or other 
specified calculation

[[Page 39101]]

methodologies) as prescribed in Part 98. None of the data elements in 
the data categories listed immediately above are inputs to equations/
calculations or information otherwise needed to calculate or determine 
emissions and are therefore not necessary to calculate direct emitters' 
GHG emissions under Part 98. We therefore propose to determine that 
these data elements are not ``emission data'' under 40 CFR 
2.301(a)(2)(i) for purposes of determining the direct emitters' GHG 
emissions that are required to be reported under Part 98. However, EPA 
notes that these data elements may nonetheless meet the criteria of 
``emission data'' at 40 CFR 2.301(a)(2)(i) if they are ``necessary to 
determine the identity, amount, frequency, concentration, or other 
characteristics (to the extent related to air quality)'' of a reporting 
facility's emission in the context of another (or future) regulatory 
program or future legislation. Therefore, the proposed determination 
described above is made strictly in the context of determining the 
direct emitters' GHG emissions required to be reported under Part 98, 
considering the specific equations and methodologies prescribed in the 
relevant Part 98 subparts for calculating such emissions. The proposed 
determination does not speak to whether any of these data elements may 
qualify as ``emission data'' in any other contexts described above.
    With respect to the 11 categories of supplier data, EPA proposes to 
determine that none of these data qualify as emission data. EPA 
interprets 2.301(a)(2)(i) to define ``emission data'' as information 
relative to emissions emitted, or authorized to be emitted, by the 
reporting sources. The data to be reported by suppliers under Part 98 
pertain to potential future GHG emissions from the eventual use of the 
suppliers' products, not emissions from these suppliers' facilities. 
Therefore, these data do not meet the definition of emission data at 40 
CFR 2.301(a)(2)(i).
    For Part 98 data that are not considered ``emission data'' in 
today's proposal, EPA proposes to determine, by category, whether such 
data qualify as CBI under CAA section 114(c). In making the CBI 
determination, EPA considered the confidentiality determination 
criteria at 40 CFR 2.208, which are as follows:
    Determinations issued under Sec. Sec.  2.204 through 2.207 shall 
hold that business information is entitled to confidential treatment 
for the benefit of a particular business if:
    (a) The business has asserted a business confidentiality claim 
which has not expired by its terms, nor been waived nor withdrawn;
    (b) The business has satisfactorily shown that it has taken 
reasonable measures to protect the confidentiality of the information, 
and that it intends to continue to take such measures;
    (c) The information is not, and has not been, reasonably obtainable 
without the business's consent by other persons (other than 
governmental bodies) by use of legitimate means (other than discovery 
based on a showing of special need in a judicial or quasi-judicial 
proceeding);
    (d) No statute specifically requires disclosure of the information; 
and
    (e) Either:
    (1) The business has satisfactorily shown that disclosure of the 
information is likely to cause substantial harm to the business's 
competitive position; or
    (2) The information is voluntarily submitted information (see Sec.  
2.201(i)), and its disclosure would be likely to impair the 
Government's ability to obtain necessary information in the future.
    Because EPA proposes to determine the CBI status of Part 98 data in 
advance of their submission, EPA assumes in this proposal that the data 
meet the criteria at 40 CFR 2.208(a) and (b). Specifically, EPA assumes 
that the reporting facilities have asserted confidentiality claims. EPA 
further assumes that the reporting facilities are taking and will 
continue to take reasonable measures to protect the data. The data 
elements at issue also meet the criterion at 40 CFR 2.208(d). As 
discussed above, EPA proposes to determine that these data elements are 
not ``emission data'' (which must be disclosed under CAA section 
114(c)), and EPA is not aware of any other statute requiring their 
disclosure. With the assumptions/findings described above, EPA 
evaluated whether the remaining criteria at 40 CFR 2.208 are met. 
Specifically, EPA focused on whether release of the data is likely to 
cause substantial harm to the business's competitive position. See 40 
CFR 2.208(e)(1). EPA also considered whether the data are already 
publicly available or reasonably obtainable by a non-governmental 
entity. See 40 CFR 2.208(c). EPA proposes to determine that the data in 
a given category are not CBI (or are ``non-CBI'') under CAA section 
114(c) if the data fail to satisfy either of the remaining criteria 
(i.e., 40 CFR 2.208(c) and (e)). If EPA finds that the data in a given 
category meet the remaining criteria at 40 CFR 2.208, EPA proposes to 
determine that such data are CBI under CAA section 114(c).
    Data that are determined to be non-CBI must be disclosed to the 
public under CAA section 114(c). Data that are determined to be CBI 
will be entitled to confidential treatment as long as the data continue 
to meet all of the criteria at 40 CFR 2.208.
    EPA is seeking comment generally on its proposed interpretation of 
the term ``emission data'', to include data that are required to 
perform emission calculations specified in the direct emitter subparts, 
as used in the statute and as defined in EPA's regulations at 40 CFR 
2.301. For example, would a narrower interpretation of the regulatory 
definition of ``emission data'', that does not include all inputs to 
equations, be appropriate as a legal and policy matter? When commenting 
on this issue, please (i) provide a description of what the narrower 
interpretation should be, (ii) explain why the narrower interpretation 
would be reasonable as well as why it would be sufficient for purposes 
of Part 98 and/or any other CAA programs, (iii) describe how it would 
fit within the regulatory definition, and (iv) discuss how it would be 
consistent with prior interpretations or implementation of that term 
\4\ as well as the statutory goal behind the CAA section 114(c) 
language. More specifically, please suggest exactly what Part 98 data 
you think should be considered emission data, describe what Part 98 
data you think should not be emission data and why (and whether such 
non-emission data are CBI and why), and clearly explain how a narrower 
definition of ``emission data'' would be consistent with the 
``necessary to determine'' clause in 40 CFR 2.301, as well as with the 
purpose behind the statutory language.
---------------------------------------------------------------------------

    \4\ For example, in a 1991 Federal Register notice, EPA 
described certain information that it would consider emission data 
under CAA section 114 (56 FR 7042, February 21, 1991).
---------------------------------------------------------------------------

    EPA is also seeking comment on whether a broader interpretation of 
``emission data'' would be appropriate for Part 98 and asks that the 
same information discussed above be provided in any such comments 
(e.g., clear description of broader interpretation, explanation of what 
additional data should be considered to be ``emission data'', 
discussion of how the revised interpretation is consistent with the 
regulations and statute, etc.).

D. Rationale for Making Confidentiality Determinations Through This 
Action

    In accordance with 40 CFR part 2, subpart B, EPA generally makes 
case-by-case confidentiality determinations on submitted data when an 
entity submitting data makes a claim of

[[Page 39102]]

confidentiality. Under CAA section 114(c), reporters can make 
confidentiality claims only for data that does not meet the definition 
of ``emission data'' in 40 CFR 2.301(a)(2)(i).
    EPA considered case-by-case determinations for Part 98 data and 
concluded that case-by-case confidentiality determinations would likely 
result in significant delays in making Part 98 data available for use 
by the public and policy makers. With over 1,500 individual data 
elements and more than 10,000 individual reporters, the amount of data 
to be reported under Part 98 is considerable. The data elements 
reported under the rule are detailed in nature, and many of them are 
likely to be considered sensitive by reporting industries. For each 
case-by-case determination, reporters would have to identify and claim 
specific reported data elements as confidential and provide written 
justification supporting their confidentiality claim. EPA would then 
need to evaluate each confidentiality claim individually to determine 
first whether the information is ``emission data'' under CAA section 
114(c) and thus required to be made available. If the data element is 
not emission data, EPA would next evaluate the data based on the 
criteria at 40 CFR 2.208, including whether the information is already 
publicly available or obtainable without the business's consent, 
whether the submitter has taken steps to protect the data, and whether 
releasing the data is likely to cause substantial harm to the 
business's competitive position. This procedure would need to be done 
for each data element that each reporter claims is confidential. This 
would be extremely time consuming for the reporter who has to prepare 
the confidentiality claim. Further, considering the number of reporters 
and the amount of data to be reported under Part 98, EPA would likely 
receive a very large number of individual confidentiality claims for a 
wide variety of data elements. In light of the large volume of 
confidentiality claims EPA expects to receive and the time it would 
take to evaluate each confidentiality claim, EPA would not be able to 
make Part 98 data available to the public in a timely manner, which 
would impact the usefulness of the data to the public, State and local 
governments, and other stakeholders who need the data to assess and 
formulate GHG policies and programs.
    EPA also believes case-by-case determinations on an entity-specific 
basis would be unnecessarily burdensome for reporters. As mentioned 
above, reporters would have to identify and claim as confidential each 
data element, even if similar data (or same data from a previous year) 
have been previously submitted and claimed as confidential. The 
confidentiality claims for data submitted as part of the annual report 
would have to be reevaluated each year. As explained in greater detail 
in Section I.C of this preamble, EPA has grouped similar data elements 
into data categories and evaluated the data elements within each data 
category using the same criteria used to evaluate case-by-case 
confidentiality claims. We are proposing on category basis which data 
elements would or would not be entitled to confidential treatment. By 
making confidentiality determinations prior to data reporting through 
this proposal and rulemaking process, potential reporters are able to 
submit comments identifying data they consider sensitive and provide 
the rationales and supporting documentation they would otherwise submit 
for case-by-case confidentiality determinations. EPA will consider all 
comments received on this proposal and will evaluate claims of 
confidentiality before finalizing the proposed confidentiality 
determinations.
    In the development of this proposal, EPA evaluated the process that 
the Toxics Release Inventory (TRI) program uses to determine whether 
data elements are entitled to confidential treatment. Per Emergency 
Planning and Community Right to Know Act (EPCRA) regulations codified 
at 40 CFR part 350, only one data element, the specific chemical name, 
can be claimed as a trade secret. TRI reporters claiming the chemical 
name as a trade secret must check a box on the reporting form and also 
complete a justification form, which is evaluated on a case-by-case 
basis by EPA. Typically, less than 20 TRI reporters in a year submit 
claims that the chemical name is a trade secret. Although the number of 
reporters in the TRI program (approximately 22,000) is on the same 
order of magnitude as the number of reporters under Part 98, EPA 
expects that the number of reporters requesting data be considered CBI, 
as well as the number of data elements reporters would request be 
considered CBI would be much higher under Part 98. For the reasons 
stated above, EPA proposes to determine upfront the confidentiality 
status of Part 98 data.
    Although EPA has concluded that case-by-case determinations would 
result in a delay in the release of data, we are soliciting comment on 
whether (and if so, what) unique circumstances may arise for a 
reporting facility, after finalization of the confidentiality status of 
the Part 98 data, that would warrant the need for EPA to reconsider a 
final non-CBI determination applicable to certain Part 98 data from 
that facility. In providing your comments, please explain the types of 
unique circumstances that may arise, the types of Part 98 data elements 
that may be affected, and how such circumstances would qualify the 
affected Part 98 data as CBI. We further solicit comments on whether 
there should be a limited, less cumbersome process for reconsidering 
any of our final non-CBI determinations under those unique 
circumstances, what kind of process would facilitate such 
reconsideration, and how we limit such a process to only those cases 
that warrant such reconsideration. If respondents believe that such a 
process is necessary, please describe specifics of the proposed process 
as well as the appropriate criteria (e.g., the type of facility, the 
type of data, and the specific technical reason for release of the 
data, etc.) that would have to be met in order to enable the use of 
such a process.

E. Proposed Rule Amendment Addressing Treatment of Part 98 Data 
Elements

    As previously discussed, pursuant to CAA section 114(c), EPA must 
make available to the public data submitted under Part 98, except for 
data (other than emission data) that are considered confidential under 
CAA section 114(c). Accordingly, EPA intends to release Part 98 data 
after their submission to EPA in accordance with EPA's determinations 
of their confidentiality status in a final rule. Specifically, EPA 
intends to release Part 98 data that are determined in the final rule 
to be emission data or not otherwise entitled to confidential treatment 
under CAA section 114(c) (i.e., ``non-CBI''). EPA intends to make much 
of such data available to the public through an EPA Web site. Data 
elements that we determine to be CBI under CAA section 114(c) would be 
published on the Web site only if they can be aggregated in a manner 
that would protect the confidentiality of these data elements (e.g., 
production data determined to be CBI that is aggregated by source 
category).
    40 CFR part 2, subpart B sets forth procedural steps that EPA must 
follow before releasing any information either on the Agency's own 
initiative or in response to requests made pursuant to FOIA. In 
particular, EPA is generally required to make case-by-case 
confidentiality determinations and to notify individual reporting 
businesses before disclosing information that businesses have submitted 
with a confidentiality claim. As discussed in Section I.D of this 
preamble, in light of

[[Page 39103]]

the voluminous data EPA will receive under Part 98 and the multiple 
procedural steps required under 40 CFR part 2, subpart B, EPA would not 
be able to make Part 98 data (determined to be emission data or non-
CBI) publicly available in a timely fashion, i.e., in order to make 
such data informative to the public and/or useful to the State 
regulators and local governments in formulating their own GHG policies, 
if it were required to make separate CBI determinations based on each 
submitter's individual claim of confidentiality.
    To facilitate timely release of GHG data collected under Part 98 
that are emission data or non-CBI, EPA proposes to amend 40 CFR 2.301, 
Special rules governing certain information obtained under the Clean 
Air Act. The proposed amendments pertain only to Part 98. Under the 
proposed amendment, EPA may release Part 98 data that are determined to 
be emission data or non-CBI upon finalizing the confidentiality status 
of these data. Consistent with the 40 CFR part 2 procedures, this 
rulemaking provides the reporting businesses an opportunity to justify 
any confidentiality claim they may have for the data they are required 
to submit (except for emission data which are not entitled to 
confidential treatment). In addition, businesses have the benefit of 
seeing EPA's rationales and analyses prior to submitting any 
justification, information that they would not otherwise have under the 
current 40 CFR part 2 procedures. EPA will consider comments received 
on this proposal before finalizing the confidentiality determinations.
    The proposed amendment also sets forth procedures for treatment of 
information in Part 98 determined to be CBI. The proposed procedures 
are similar to or consistent with the existing 40 CFR part 2 
procedures.
    EPA solicits comment on the proposed amendments to 40 CFR 2.301, 
Special rules governing certain information obtained under the CAA.

F. Other Relevant Background

    This section briefly describes existing policies and practices 
regarding ``emission data'' and the release of data obtained under CAA 
section 114.
    February 21, 1991 notice of policy on public release of certain 
data elements submitted under CAA sections 110 and 114. In a 1991 EPA 
notice of policy (35 FR 7042, February 21, 1991), EPA stated that 
certain data fields constitute ``emission data'' and therefore cannot 
be withheld as confidential. The 1991 notice indicated that while 
confidentiality determinations are typically made on a case-by-case 
basis, some kinds of data will always constitute emission data within 
the meaning of CAA section 114(c). The notice listed several data 
fields that are to be considered emission data including facility 
identification data (e.g., facility name; address; ownership; Standard 
Industrial Classification (SIC); emission point, device or operation 
description information) and emission parameters (e.g., compounds 
emitted; origin of emissions; emission rate, concentration, release 
parameters, boiler or process design capacity, emission estimation 
method). The notice clarified that the list in the notice was not 
exhaustive and that other data might be found, in a proper case, to 
constitute emission data.
    The National Emissions Inventory (NEI) is EPA's compilation of 
estimates of air pollutants discharged on an annual basis and their 
sources. The compilation includes emissions estimates submitted by 
State, Local and Tribal air pollution control agencies, estimates 
calculated by EPA, and emissions obtained from other sources. NEI does 
not collect data directly from facilities; rather it gets facility-
level data from the States. Based on the 1991 notice, NEI considers 
everything they receive to be emission data, and therefore publishes 
all of the information that it receives.
    Many of the data elements under Part 98 are the same as or similar 
to the data fields listed in the 1991 notice as ``emission data''. 
However, there are many data elements under Part 98 that are not 
addressed in EPA's 1991 notice. As described above, today's action 
addresses all data elements reported under Part 98.\5\
---------------------------------------------------------------------------

    \5\ The only exception is supporting documentation provided by 
applicants for approval of alternative methods for adipic acid and 
nitric acid facilities. EPA recognizes that supporting documentation 
included in these applications may include information that is 
sensitive or proprietary, such as detailed process designs or site 
plans. Because the exact nature of this documentation cannot be 
predicted with certainty, EPA proposes to make case-by-case 
confidentiality determinations under CAA section 114(c) for any 
supporting documentation claimed confidential by applicants either 
upon receipt of such information or upon a request for such 
information after receipt.
---------------------------------------------------------------------------

    Acid Rain Program. The Acid Rain program releases to the public 
data similar to the data collected under Part 98. Under the Acid Rain 
program, facilities are required to submit quarterly reports that 
contain data on CO2 emissions, as well as the data used to 
identify emission units and calculate the CO2 emissions. For 
the Acid Rain program, the CO2 emissions are determined 
using either Continuous Emissions Monitoring Systems (CEMS) or 
alternative methods specified in the rule (e.g., 40 CFR part 75, 
appendix G methods and the method used to calculate CO2 
emissions by facilities with low mass emissions).
    Data submitted to the Acid Rain program include facility 
identification information, CO2 mass emission data, data 
elements used to calculate annual CO2 emissions, combustion 
unit characteristics, and measurement methodologies (e.g., hourly load, 
operating time, hourly heat input rate, unit output or steam load, fuel 
type, fuel quantity, fuel heating value, control status of the unit, 
methods used to measure or calculate CO2 emissions or other 
parameters such as fuel flow and heat input). These are posted for the 
public on EPA's Acid Rain Web site (http://www.epa.gov/acidrain).
    The Acid Rain program allows facilities to make confidentiality 
claims for data that are not ``emission data'' (see 40 CFR 75.60(c)). 
Although facilities subject to the Acid Rain program are allowed to 
assert claims of data confidentiality for data that are not emission 
data, to date no such representations have been received and all of the 
data submitted to EPA are made available to the public.
    In the Acid Rain program, public release of these data ensures 
transparency and public confidence in the program. Since many of the 
data fields required by the Acid Rain program are the same or similar 
to the data elements to be reported by direct-emitting facilities 
subject to Part 98, EPA finds that public release of Part 98 data that 
are emission data or non-CBI would likewise ensure transparency and 
promote public confidence in the accuracy and completeness of the data 
reported under Part 98. However, EPA recognizes that Part 98 differs 
from the Acid Rain Program in the scope of industries required to 
report. For example, EPA recognizes that electricity producers may be 
inherently less concerned about the disclosure of reported data than 
other industries reporting under Part 98 because they are publicly 
regulated utilities and detailed data on their process, production, and 
pricing structure are already in the public domain. Therefore, EPA is 
proposing to determine that some data elements reported under Part 98 
remain CBI (e.g., production data reported by industrial facilities in 
cases where production data is not needed to calculate GHG emissions) 
even though similar data elements for the utility industry are publicly 
available.

[[Page 39104]]

G. Public Comments on the Proposed Mandatory GHG Reporting Rule

    In response to the April 10, 2009 proposed rule (74 FR 16448), EPA 
received a number of comments on whether data collected under Part 98 
should be afforded confidential treatment. Comments on this topic were 
received from a wide range of interested parties, including industry, 
State and local governments, private citizens, environmental 
organizations, and other nongovernment organizations. The comments 
received can be classified into two broad categories: those supporting 
the release of as much data as possible; and those opposed to releasing 
one or more of the reported data elements. A summary of the comments is 
provided in this section of the preamble. For additional information, 
see the memorandum ``Summary of Comments on the Release of Reported 
Data Submitted in Response to EPA's Request for Comments on the 
Proposed Mandatory Greenhouse Gas Reporting Rule'' Published April 10, 
2009 in Docket EPA-HQ-OAR-2009-0924.
    EPA is not responding further to public comments related to the 
confidentiality of data elements received on the proposed GHG reporting 
rule. Today's action proposes confidentiality determinations and 
solicits additional public comments. Public comments received will be 
addressed in the final action and associated response to comments 
documents.
    Comments Supporting Release of Reported Data. States, local 
government, environmental groups, and private citizens generally 
supported the release of reported data. Many commenters stated that 
reported data should be made broadly available to the public and other 
government agencies (including State and local government). Some argued 
that all of the information gathered under Part 98 should be ``emission 
data'' and hence not entitled to confidential treatment. Many 
commenters cited strong public interest in both the emissions and 
verification data as their reason for recommending the broad 
dissemination of data. Some commenters also stated that making the data 
broadly available would be consistent with the President's and EPA 
Administrator's commitment to transparency and public access to 
government information. Several commenters stated that release of 
detailed emission data would be useful to State regulators and local 
governments because the data would inform future policies and assist 
with the implementation GHG emission reduction plans. Some commenters 
also noted that the release of emission data would be consistent with 
other programs, such as the Acid Rain program and the European Union 
Emissions Trading System.
    Comments Opposing the Release of Reported Data. Many businesses and 
industry organizations opposed making the reported data broadly 
available to the public. Several expressed concern that Part 98 did not 
address the confidentiality of the reported data. Many commenters 
submitted general statements that confidential data should not be made 
public but did not specify which data elements should be afforded 
confidential treatment. Some commenters identified specific data 
elements that they considered confidential but did not explain why such 
data elements should be considered confidential. Some commenters 
explained in more detail their confidentiality claims. These comments 
are summarized below.
    Some commenters argued that detailed process-related information, 
such as production throughputs, product characteristics, operating 
hours, raw material consumption, fuel usage, and unit descriptions, 
should be protected as confidential because its release would reveal 
information on energy usage, raw materials, product chemistry, 
production efficiency, and other information that would infringe on 
business confidentiality. These commenters argued that disclosing 
annual production and raw material quantities could reveal operational 
strengths and weaknesses, and could be used to deduce pricing 
structures. Several commenters also recommended that unit or process 
level emission data should be afforded confidential treatment because 
this data may be used in certain instances to determine other 
proprietary information about a facility, such as production or output 
rates, capacity, utilization rates, process efficiency, and the 
information on the type or design of a process. Other commenters argued 
that only facility-level emission data should be released and that all 
other data was entitled to confidential treatment because they did not 
view it as ``emission data'' as defined in 40 CFR part 2.
    Several commenters were in favor of classifying supplier data, in 
particular product quantities and characteristics, as confidential. One 
commenter noted that public disclosure of production quantities and 
product characteristics would divulge sensitive information related to 
marketing and distribution of products, as well as competitive 
strategies of a company. Another commenter claimed that public 
disclosure of supplier data may prevent off-shore suppliers and 
customers from doing business with U.S.-based companies if sensitive 
information were not held to be confidential.
    As mentioned above, EPA stated in the preamble to the final rule 
that it would determine the confidentiality status of the data elements 
to be collected under Part 98 through a notice and comment process. 
Today's action proposes for public comment confidentiality 
determinations to be made for data elements that are codified in Part 
98. Today's action also includes an amendment to 40 CFR 2.301 to 
clarify the procedures for the treatment of Part 98 data in accordance 
with the final confidentiality determination of such data.

II. Proposed Emission Data and Confidentiality Determinations for Data 
Required by the Mandatory GHG Reporting Rule in Part 98

A. Overview

    This action describes the 22 data categories EPA has developed for 
all of the data to be reported under Part 98 and EPA's proposed 
determination by category. As mentioned in previous sections of this 
preamble, because Part 98 has over 1,500 data elements and has several 
different subparts with similar types of data elements, EPA grouped 
similar data elements together into data categories, with 11 distinct 
data categories for the direct emitter source categories and 11 for 
supplier source categories. The data elements within a given data 
category are similar from a technical standpoint, with some exceptions 
explained in the descriptions of each data category in Sections II.C 
and II.D of this preamble. A list of all the data elements assigned to 
each category is provided in a memorandum (see Memorandum ``Data 
Category Assignments for Reporting Elements'' in Docket EPA-HQ-OAR-
2009-0924 and the Web site (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html). For the explanation of the approach taken by EPA 
to determine which data elements within each data category are entitled 
to confidential treatment, see Section I.C of this preamble.
    In addition to reporting facility GHG emissions (or supplier GHG 
quantities that would or could potentially be emitted when the products 
they supply are used), Part 98 requires reporting of a wide range of 
other facility and process-specific data. Most of this data are 
required primarily to enable

[[Page 39105]]

emissions verification. The information is also needed to support 
analysis of GHG emissions for future CAA policy and program 
development, including programs that could affect direct emitters or 
suppliers. For example, the required information would be helpful to 
policy makers in understanding the specific sources of emissions and 
the amounts emitted by each unit/process. The information is also 
important for understanding the effect of different processes, fuels, 
and feedstocks on emissions.

B. Request for Comments

    Today's action provides affected businesses subject to Part 98, 
other stakeholders, and the general public an opportunity to provide 
comment on the proposed confidentiality determination of Part 98 data 
and the proposed amendment to 40 CFR 2.301. In addition to soliciting 
comment on our proposed amendments to 40 CFR 2.301 and proposed 
confidentiality designations, we are also soliciting comment on the 
following specific issues relevant to the proposed confidentiality 
determinations:
    Data Categories. As discussed above, EPA has categorized individual 
data elements into 22 data categories (i.e., 11 for direct emitters and 
11 for suppliers) and has made confidentiality determinations for each 
data category. While we consider this approach to be reasonable given 
the number of data elements and the technical similarity among data 
elements across subparts, EPA is interested in stakeholder views on 
this approach. In particular, EPA is soliciting comment on whether 
grouping data elements into data categories, and making a 
confidentiality determination by data category is a reasonable approach 
and whether the proposed data categories are sufficient for this 
purpose. Specifically, we request comments on whether the 22 data 
categories described in this action are appropriately delineated and 
whether the data elements within each category are sufficiently similar 
to allow confidentiality determinations to be made on a data category 
basis, or whether some data categories should be combined or broadened. 
In commenting on these topics, please identify the specific data 
categories that should be narrowed or broadened, provide suggestions 
for how this might be done, and provide specific reasons and examples 
of why such an approach is necessary.
    Recognizing that transparency is a key priority, we are also 
requesting comments on whether it may be necessary to make source 
category-specific confidentiality determinations within any of the 
proposed data categories. This would allow either a narrower or broader 
release of the data depending on the source category in order to enable 
the release of as much data as possible. Each of the data categories 
discussed in this action contains data elements from multiple source 
categories (subparts). For most data categories, a single 
confidentiality determination is proposed for the entire data category. 
However, for some of the supplier data categories (i.e., the GHGs 
Reported Category, the Production Throughput Quantities and Composition 
Data Category, and the Unit/Process Operating Characteristics 
Category), we are proposing to determine that some data elements within 
a data category are entitled to confidential treatment and others 
within the same category are not. For example, in the supplier data 
category for Production and Throughput Data, EPA is proposing that 
throughput data reported by NGL fractionators would be entitled to 
confidential treatment, but throughput data reported by Local 
Distribution Companies (LDCs) would not be entitled to confidential 
treatment because this data is already publicly available. We are 
soliciting comments on whether, for any other data categories, there 
are unique circumstances within particular source categories (rule 
subparts) that would warrant making subpart-specific confidentiality 
determinations within categories beyond what is proposed in this 
action. If so, please explain what specific technical, economic, or 
market considerations within a particular source category (e.g., within 
a particular industry) warrant a source category (rule subpart) 
specific decision on confidentiality.
    As discussed in Section I.D of this preamble, we are also 
soliciting comment on whether (and if so, what) unique circumstances 
may arise for a reporting facility, after finalization of the 
confidentiality status of the Part 98 data, that would warrant the need 
for EPA to reconsider a final non-CBI determination applicable to 
certain Part 98 data from that facility. In providing your comments, 
please explain the types of unique circumstances that may arise, the 
types of Part 98 data elements that may be affected, and how such 
circumstances would qualify the affected Part 98 data as CBI. We 
further solicit comments on whether there should be a limited, less 
cumbersome process for reconsidering any of our final non-CBI 
determinations under those unique circumstances, what kind of process 
would facilitate such reconsideration, and how we limit such a process 
to only those cases that warrant such reconsideration. If respondents 
believe that such a process is necessary, please describe specifics of 
the proposed process as well as the appropriate criteria (e.g., the 
type of facility, the type of data, and the specific technical reason 
for release of the data, etc.) that would have to be met in order to 
enable the use of such a process.
    ``Emission Data'' Determination. As previously discussed in Section 
I.C of this preamble, EPA proposes to determine as ``emission data'' 
data required to perform the emissions calculations for direct emitters 
specified in Part 98 because these inputs to GHG emission equations are 
``necessary to determine the identity, amount * * *'' of emissions and 
are therefore ``emission data'' under the meaning of 40 CFR 
2.301(a)(2)(i). The Inputs to Emission Equations Category for direct 
emitters includes all data elements that are inputs to equations; and 
for some source categories this includes data such as production and 
raw material quantities and compositions that may be considered 
sensitive by businesses. (See Section II.C of this preamble for a 
description of the Inputs to Emission Equations data category.) As 
previously discussed, ``emission data'' cannot be kept confidential per 
CAA section 114.
    EPA is seeking comment generally on its proposed interpretation of 
the term ``emission data'', to include data that are required to 
perform emission calculations specified in the direct emitter subparts, 
as used in the statute and as defined in EPA's regulations at 40 CFR 
2.301. For example, would a narrower interpretation of the regulatory 
definition of ``emission data'', that does not include all inputs to 
equations, be appropriate as a legal and policy matter? When commenting 
on this issue, please (i) provide a description of what the narrower 
interpretation should be, (ii) explain why the narrower interpretation 
would be reasonable as well as why it would be sufficient for purposes 
of Part 98 and/or any other CAA programs, (iii) describe how it would 
fit within the regulatory definition, and (iv) discuss how it would be 
consistent with prior interpretations or implementation of that term 
\6\ as well as the statutory goal behind the CAA section 114(c) 
language. More specifically, please specify exactly what Part 98 data 
you

[[Page 39106]]

think should be considered emission data, describe what Part 98 data 
you think should not be emission data and why (and whether such non-
emission data are CBI and why), and clearly explain how a narrower 
definition of ``emission data'' would be consistent with the 
``necessary to determine'' clause in 40 CFR 2.301, as well as with the 
purpose behind the statutory language.
---------------------------------------------------------------------------

    \6\ For example, in a 1991 Federal Register notice, EPA 
described certain information that it would consider emission data 
under CAA section 114 (56 FR 7042, February 21, 1991).
---------------------------------------------------------------------------

    EPA is also seeking comment on whether a broader interpretation of 
``emission data'' would be appropriate for Part 98 and asks that the 
same information discussed above be provided in any such comments 
(e.g., clear description of broader interpretation, explanation of what 
additional data should be considered to be ``emission data'', 
discussion of how the revised interpretation is consistent with the 
regulations and statute, etc).
    Delay Release of Emission Data and Data Not Entitled To 
Confidential Treatment. Under Part 98, reports are due by March 31st 
for the previous year's data. The Agency considered options of delaying 
release of some data for a given period of time (e.g., one to three 
years rather than releasing immediately after verification) as a means 
to address potential industry concerns over release of data. One option 
EPA considered is delaying the publication (i.e., posting on the Web 
site) of some data elements that are proposed in this action to be 
released. Recognizing that the Inputs to Emission Equations Data 
Category may contain data elements that are considered sensitive by 
many businesses (see Section II.C of this preamble for a description of 
the data elements included in this data category), EPA considered 
whether delaying publication of the data in this and possibly other 
data categories by a given time period would ease businesses' concerns 
regarding the release of this data. (The data might be less sensitive 
and less likely to cause harm if it were to be released at a later 
date, when it would be less current). However, even if EPA does not 
automatically release Part 98 data that are determined to be emission 
data or non-CBI but are nonetheless considered by the businesses to be 
sensitive data, that data would still be subject to FOIA request. 
Therefore, per FOIA regulations and consistent with EPA's final 
confidentiality determination, emission data and non-CBI would be 
released. For the reason stated above, EPA believes that this option 
does not resolve the industry's concern and only unnecessarily delays 
release of information that must be made public pursuant to CAA section 
114(c).
    EPA also considered delaying the final confidentiality 
determination by one year. However, as in the previous scenario, EPA 
would still be subject to FOIA requests during the one year period 
before issuing the final confidentiality determination. Once the case-
by-case decisions are made through the FOIA process, data that are 
determined to be not entitled to confidential treatment would be 
released pursuant to EPA's CBI regulations. Given the number of data 
elements and reporters covered by Part 98, the intent of this proposed 
action is to avoid these case-by-base decisions. In addition, this 
approach would have no effect on data submitted in the years subsequent 
to the first year of reporting.
    For these reasons, EPA concluded that delaying publication of 
potentially sensitive data or delaying our final confidentiality 
determination would not ease businesses' concerns regarding the release 
of reported data. While we believe that neither of these approaches is 
a viable option, EPA solicits comment on whether delaying publication 
of certain data elements would ease business concerns and whether there 
are any alternative approaches that would allay such concerns while 
enabling us to meet our obligations under FOIA and CAA.
    Duration of Confidentiality Treatment. In the interest of 
transparency and consistency with the practice of other EPA programs' 
release of all data (e.g., Acid Rain Program), EPA solicits comment on 
whether, for data reporting elements that are proposed today to be 
entitled to confidential treatment, the confidential treatment of such 
data should be time limited (i.e., whether these items could be 
released without causing substantial harm to business after a certain 
period of time). If stakeholders believe that data elements that are 
proposed to be entitled to confidential treatment could eventually be 
released without causing substantial harm to business, please specify 
which data elements fall into this group, the amount of time delay that 
would be required prior to release, and the reason for the change in 
the proprietary nature of the data element.

C. Direct Emitting Facilities

    Direct emitting facilities are those facilities subject to Part 98 
that directly emit GHGs to the atmosphere. They include stationary fuel 
combustion sources that meet the criteria in 40 CFR 98.2(a)(3)) and 
facilities containing any of the source categories listed in 40 CFR 
98.2(a)(1) and (a)(2) (including source categories proposed on April 
12, 2010). This section of the preamble covers all of the data elements 
required to be reported for these source categories (subparts) and 
certain data elements in proposed amendments to Part 98. This section 
also covers certain data elements from proposed 40 CFR part 98, subpart 
RR (Injection and Geological Sequestration of CO2) that are 
related to emissions to the atmosphere from reporting facilities (i.e., 
emissions from surface equipment and from the leakage of CO2 
from geologic sequestration\7\). All remaining data elements for 40 CFR 
part 98, subpart RR are covered in Section II.D of this preamble 
because they are not related to direct emissions.
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    \7\ Leakage is defined in proposed subpart RR as the movement of 
CO2 from the injection zone to the surface (for example 
to the atmosphere, indoor air, oceans or surface water) (see 75 FR 
18576, April 12, 2010).
---------------------------------------------------------------------------

    In addition to data elements reported in the annual GHG reports, 
this section includes data elements in applications from adipic acid 
and nitric acid producers for approval of alternative methods 
(excluding supporting documentation \8\) and BAMM extension requests. 
EPA has categorized each data element into one of 11 data categories. 
This section describes the data elements within each of the 11 data 
categories and proposes whether the data in each category will be 
treated as confidential.
---------------------------------------------------------------------------

    \8\ EPA recognizes that supporting documentation included in 
applications for approval of alternative methods from adipic acid 
and nitric acid producers may include information that is sensitive 
or proprietary, such as detailed process designs or site plans. 
Because the exact nature of this documentation cannot be predicted 
with certainty, EPA proposes to make case-by-case confidentiality 
determinations under CAA section 114(c) for any supporting 
documentation claimed confidential by applicants either upon receipt 
of such information or upon a request for such information after 
receipt.
---------------------------------------------------------------------------

1. Data Categories
    The data categories for ``direct emitting'' facilities are as 
follows and are further described in Sections II.C.2 through II.C.12 of 
this preamble:
     Facility and unit identifier information.
     Emissions.
     Inputs to emission equations.
     Calculation methodology and methodological tier.
     Data elements reported for periods of missing data that 
are not inputs to emission equations).
     Unit/process ``static'' characteristics that are not 
inputs to emission equations.
     Unit/process operating characteristics that are not inputs 
to emission equations.
     Test and calibration methods.
     Production/throughput data that are not inputs to emission 
equations.
     Raw materials consumed that are not inputs to emission 
equations.

[[Page 39107]]

     Process-Specific and Vendor Data Submitted in BAMM 
Extension Requests.
    Sections II.C.2 through II.C.12 of this preamble describe the 
proposed determination for each of the 11 data categories for direct 
emitting facilities and provide the rationale for EPA's proposed 
determination. A list of all the data elements assigned to each 
category is provided in a memorandum (see Memorandum ``Data Category 
Assignments for Reporting Elements to be Reported under 40 CFR Part 98 
and its Amendments'' in Docket EPA-HQ-OAR-2009-0924 and the Web site 
(http://www.epa.gov/climatechange/emissions/CBI.html.
2. The Facility and Unit Identifier Information Category
    EPA proposes to determine that facility and unit identifiers are 
``emission data'' under 40 CFR 2.301(a)(2)(i).
    Description of data elements. Part 98 requires sources to report 
information needed to identify each facility and emission unit subject 
to reporting. Facility identifying information must be reported by all 
facilities as specified in 40 CFR part 98, subpart A. Unit-specific 
identifying information is reported if required by an applicable source 
category subpart. Unit-specific identifying information is required in 
those subparts that require emissions to be calculated on a unit-by-
unit basis. For these source categories, unit-specific data are needed 
to calculate emissions using the procedures in Part 98, so the unit 
associated with the emissions must be identified.
    Data elements in this category include the following data elements 
required under 40 CFR part 98, subpart A to be included in each annual 
report: Facility name and physical street address, including the city, 
State, and zip code; the year and months covered by the report; the 
date of submittal of the report; and a signed and dated certification 
statement of the accuracy and completeness of the report, which is 
provided by the designated representative of the owner or operator. 
Also included are data elements from the proposed amendments to the 
reporting requirements in 40 CFR part 98, subpart A (75 FR 18455, April 
12, 2010). These data elements include: U.S. parent company(s), 
percentage ownership of each parent company, and all applicable NAICS 
codes.
    The data elements in this category also include the information 
required by individual subparts of Part 98 for identifying each 
emission unit for which emissions must be reported, including, an 
emission unit or group identification number and the type of unit 
(e.g., cement kiln, electric arc furnace, glass production furnace, 
lead smelting furnace, engine, turbine, boiler, process heater).
    This data category also includes facility and unit identification 
information submitted to EPA in applications from adipic acid and 
nitric acid facilities for approval of alternative methods (applicable 
to 40 CFR part 98, subparts E and V only) and BAMM extension requests. 
These data elements include: The facility name and physical address; 
identification numbers for emission units, common exhaust stacks, and 
common pipelines; number and type of units; and descriptions of 
monitoring equipment.
    Rationale for Proposed Determination. As discussed in Section I.C 
of this preamble, emission data must be available to the public and is 
not entitled to confidential treatment under CAA section 114(c). 
``Emission data'' is defined in 40 CFR 2.301(a)(2)(i)(A) to include, 
among other things, ``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* * *'' EPA considers the term ``identity * * * of any 
emission'' as not simply referring only to the names of the pollutants 
being emitted, but to also include other identifying information, such 
as from what and where (e.g., the identity of the emission unit) the 
pollutants are being emitted. Further, 40 CFR 2.301(a)(2)(i)(C) 
specifies that emission data includes ``[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* * *''. 
Consistent with the definition of emission data described above, EPA 
considers facility and emission unit identifiers to be source 
information or ``information necessary to determine the identity * * * 
of any emission which has been emitted by the source,'' and therefore 
emission data under 40 CFR 2.301(a)(2)(i).
    The 1991 EPA notice of policy (discussed in Section I.F of this 
preamble) provided a list of data fields that EPA considered to be 
emission data. For example, in the 1991 notice, EPA considered that 
plant name, address, city, State, zip code, emission point or device 
description, SIC code, and Source Classification Code (SCC) are 
emission data. Therefore, the public has been on notice that EPA 
considers many of the data elements in this data category to be 
emission data and thus not entitled to confidential treatment. The 1991 
notice also makes clear that the list of data is not comprehensive and 
that other data might be found to constitute emission data.
    Summary. EPA is proposing to determine that data elements in the 
Facility and Unit Identifier Information Category are ``emission data'' 
as defined in 40 CFR 2.301(a)(2)(i). Under CAA section 114(c), emission 
data cannot be held confidential and must be available to the public. 
EPA solicits comments on this proposed determination, including whether 
the data category determination is appropriate as well as whether the 
appropriate data elements were assigned to this category.
3. The Emissions Category
    EPA proposes to determine that the GHG emissions to be reported by 
direct emitters are ``emission data'' under 40 CFR 2.301(a)(2)(i).
    Description of data elements. Data elements included in this data 
category are the GHG emissions to be reported by direct emitters under 
Part 98. Under 40 CFR part 98, subpart A, all direct emitters must 
report annual CO2e emissions and must also report emissions 
by GHG and source category. In addition, certain direct emitters are 
required to report GHG emissions in more detail as specified in the 
applicable source categories subparts in Part 98. Each of these 
subparts lists the specific GHGs to be reported for a particular source 
category and whether facility emissions are reported only at the 
source-category level or separately for each process, manufacturing 
line, or emission unit within a source category. In general, emissions 
are reported at the same level of detail in which they are calculated 
or measured. If emissions are calculated or measured for individual 
emission units, they are also reported for individual units. In some 
cases, emissions are calculated or measured, and reported, for a group 
of units that share a common fuel supply line or a common stack. For 
some source categories, facilities calculate and report only their 
total emissions from the source category based on an overall mass 
balance, rather than calculating and reporting emissions by process 
line or unit.
    Provided below are some examples of the data elements in the 
Emissions Category:
     CO2, CH4, and N2O 
emissions from each stationary combustion unit (40 CFR part 98, subpart 
C).
     Process N2O emissions from adipic acid 
production (40 CFR part 98, subpart E).

[[Page 39108]]

     Process CO2 and N2O emissions from 
each electric arc furnace at a ferroalloy production facility (40 CFR 
part 98, subpart K).
     Process CO2 emissions from each glass furnace 
and all furnaces combined at a glass manufacturing facility (40 CFR 
part 98, subpart N).
     Process CO2 emissions from each soda ash 
manufacturing line at soda ash manufacturing plants (40 CFR part 98, 
subpart CC).
    For each facility, GHG emissions are reported at the facility 
level, the subpart level, and, in many cases, the emission unit or 
process level. For example, petroleum refineries will report GHG 
emissions under 40 CFR part 98, subpart A and under 40 CFR part 98, 
subpart Y at the following separate levels:
     Annual CO2e emissions (excluding biogenic 
CO2) aggregated for all GHG from all applicable source 
categories (i.e., one value for the whole facility).
     Annual emissions of biogenic CO2 aggregated for 
all applicable source categories (i.e., one value for the whole 
facility).
     CO2, CH4, and N2O coke 
burn-off emissions from each catalytic cracking unit, fluid coking 
unit, and catalytic reforming unit.
     CO2 emissions from sour gas sent off site for 
sulfur recovery operations.
     CO2 process emissions from each on-site sulfur 
recovery plant.
     CO2, CH4, and N2O 
emissions from each coke calcining unit.
     CO2 and CH4 emissions from asphalt 
blowing operations.
     CH4 emissions from equipment leaks, storage 
tanks, loading operations, delayed coking units, and uncontrolled 
blowdown systems.
     CO2, CH4, and N2O 
emissions from each process vent not specifically covered above.
     CO2 and CH4 emissions from non-
merchant hydrogen production.
    Rationale for Proposed Determination. EPA proposes to determine 
that the emissions at each reporting level constitute ``emission 
data.'' ``Emission data'' is defined in 40 CFR 2.301(a)(2) as 
``information necessary to determine the identity, amount, frequency, 
concentration, * * * of any emission which has been emitted by the 
source * * * ''. As described above, the data elements in this category 
consist of all emissions to be reported under Part 98. These data 
elements are clearly information regarding the identity, amount, and 
frequency of any emission emitted by the reporting direct emitters and, 
therefore, they are ``emission data.''
    As described above, EPA proposes that all emissions reported by 
direct emitters under Part 98, including emissions of each GHG at the 
levels required by the applicable rule subparts (e.g., facility-level; 
by source category; and by process, process line, or unit), are 
``emission data.'' Facilities are also required to report GHG emissions 
in terms of CO2e, which is also part of this data category, 
and is considered to be emission data. For those source categories 
where the methodology requires emissions to be calculated at a process 
line or unit level, the calculated emissions for each process line or 
unit are the identity and quantity emitted by the source and are 
``emission data'' within the meaning of 40 CFR 2.301(a)(2). Likewise, 
emissions broken out by GHG are needed to determine the ``identity'' of 
the emissions and to calculate CO2e. In summary, all 
reported emissions are ``emission data.''
    As discussed in Section I.F of this preamble, in the 1991 EPA 
notice of policy (35 FR 7042, February 21, 1991), EPA identified, 
without attempting to be comprehensive, data elements that EPA 
considered to constitute emission data. The 1991 notice lists the 
``Emission type (e.g., the nature of emissions, such as CO2, 
particulate or a specific toxic compound, and origin of emissions such 
as process vents, storage tanks or equipment leaks)'' and ``Emission 
rate (e.g., the amount released to the atmosphere over time such as kg/
yr or lbs/yr)'' as data that are not entitled to confidential treatment 
and are, therefore, releasable to the public. Our proposed 
determination for this data category is consistent with the 1991 
notice, which considers that identity (e.g., CO2, 
N2O, SF6) and emission rate (i.e., the amount 
emitted during a specified time period) are emission data and not 
entitled to confidential treatment.
    Summary. EPA proposes to determine that the data elements in the 
Emissions Category are ``emission data'' as that term is defined at 40 
CFR 2.301(a)(2)(i). EPA solicits comments on this proposed 
determination, including whether the data category determination is 
appropriate as well as whether the appropriate data elements were 
assigned to this category.
4. The Inputs to Emission Equations Category
    EPA proposes to determine that data elements in the Inputs to 
Emission Equations Category are ``emission data'' under 40 CFR 
2.301(a)(2)(i).
    Description of data elements. The data elements in this category 
consist of inputs to the equations specified in Part 98 for calculating 
emissions to be reported by direct emitters. Part 98 requires direct 
emitters to calculate annual mass emissions (metric tons per year) for 
each GHG. Specific calculation methods are contained in each direct 
emitting source category subpart.
    Data elements included in this category are inputs to the emission 
equations used by the reporting direct emitting sources to calculate 
their annual GHG emissions under Part 98. Each subpart specifies the 
equations that must be used to calculate GHG emissions and the inputs 
to the equations that must be reported for a particular source 
category. Many of these subparts provide more than one calculation 
method for a process or unit and allow reporting facilities to select 
their preferred method from those provided. Therefore, the specific 
data elements to be reported depend on the source category and on the 
calculation method chosen.
    All reported data elements that are inputs to a GHG emission 
calculation equation used by the reporting facilities are assigned to 
this category. Accordingly, this data category includes data elements 
such as raw materials consumed, unit/process characteristics, and 
production/throughput data that are used by a reporting facility as 
inputs to an emission equation. As discussed in Section II.C.1 of this 
preamble, there are separate data categories for raw materials 
consumed, unit/process characteristics, and production/throughput data 
that are not inputs to equations (either because they are not part of 
any emission calculation equations provided in Part 98 or the reporting 
facility chooses to use another calculation method that does not use 
these data as inputs).
    Examples of data elements in the Input to Emissions Equations 
Category include the following:
     Fuel information used by reporting facilities as inputs to 
emissions equations, such as mass or volume of fuel combusted (per 
year), fuel type, molecular weight of gaseous fuels, high heat value, 
and quantity of biomass consumed (40 CFR part 98, subpart C).
     Control device information used by reporting facilities as 
inputs to emissions equations, such as the destruction efficiency (40 
CFR part 98, subparts E and V), sorbent used in the reporting year (40 
CFR part 98, subpart C), and abatement utilization factor (40 CFR part 
98, subparts E and V).
     Production/throughput and raw material consumption 
information used by reporting facilities as inputs to emissions 
equations, including volume or mass of feedstock for source categories 
such as ammonia manufacturing (40 CFR part 98, subpart

[[Page 39109]]

G), hydrogen production (40 CFR part 98, subpart P), and petrochemical 
production (40 CFR part 98, subpart X); and volume or mass of product 
produced for source categories such as ferroalloy (40 CFR part 98, 
subpart K), lead (40 CFR part 98, subpart R), and zinc production (40 
CFR part 98, subpart GG).
     Characteristics of raw materials, products, and by-
products used by reporting facilities as inputs to emissions equations, 
such as the carbon content of petroleum coke used in silicon carbide 
production(40 CFR part 98, subpart BB), inorganic carbon content of 
trona or soda ash for soda ash manufacturing (40 CFR part 98, subpart 
CC), molecular weight of sorbent (40 CFR part 98, subpart C), molecular 
weight of raw materials (40 CFR part 98, subparts G and X), Calcium 
oxide and magnesium oxide content of clinker used in cement product (40 
CFR part 98, subpart H), carbonate content of raw materials used in 
glass production (40 CFR part 98, subpart N), and hourly CO2 
concentration in liquid alkaline feedstock for soda ash manufacturing 
(40 CFR part 98, subpart CC).
     Operating information that are used by reporting 
facilities as inputs to emissions equations, such as hourly average 
CO2 concentration in exhaust gases, hourly average stack gas 
volumetric flow rate, hourly moisture percentage in the stack gas, mass 
of steam generated by fuel combustion, and operating time (40 CFR part 
98, subpart Y).
     Site-specific emission factors, used by reporting 
facilities as inputs to emissions equations, for source categories such 
as adipic acid production (40 CFR part 98, subpart E), nitric acid 
production (40 CFR part 98, subpart V), and iron and steel production 
(40 CFR part 98, subpart Q).
     Equipment or system specifications that are used by 
reporting facilities as inputs to emissions equations to calculate GHG 
emissions, such as the collection efficiency of landfill gas systems 
(40 CFR part 98, subpart HH).
    Rationale for Proposed Determination. As discussed in Section I.C 
of this preamble, emission data must be available to the public and is 
not entitled to confidential treatment. ``Emission data'' is defined in 
40 CFR 2.301(a)(2) as ``information necessary to determine the 
identity, amount, frequency, concentration, * * * of any emission which 
has been emitted by the source * * *''. Consistent with this definition 
of emission data, EPA considers inputs to emission equations to be 
``information necessary to determine * * * the amount'' of any emission 
emitted by the source.
    As explained above, many subparts allow the facility to select from 
two or more calculation methods. For example, many source category 
subparts allow companies to choose to calculate emissions by either (1) 
measuring gas flow rates and emissions concentrations with CEMS and 
using those data to calculate annual mass emissions, or (2) using 
emission calculation equations provided in the rule and site-specific 
input data needed to perform the calculation. However, once a facility 
selects a calculation method, then the equation becomes the only way 
for determining such emissions for the time period the selected 
calculation method is used.\9\ Since the data inputs required by the 
selected equation are needed to perform the emission calculation, these 
inputs to the equation are information ``necessary to determine'' the 
calculated emissions.
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    \9\ 40 CFR 98.3(e) allows a reporter to switch methods during 
the reporting year as long as they document the date and reason for 
the change in their annual report.
---------------------------------------------------------------------------

    Our proposed determination for this data category is consistent 
with the 1991 EPA notice of policy on emission data. Some of the data 
fields listed in the 1991 notice are the same as some of the data 
elements in this data category. For example, in the 1991 notice, EPA 
considered the emission rate, emission concentration, and emission 
density or molecular weight to be emission data and therefore 
releasable to the public.
    Summary. EPA proposes to determine that the data elements in the 
Inputs to Emission Equations Category are ``necessary to determine'' 
the sources' emissions and are therefore ``emission data'' as defined 
in 40 CFR 2.301(a)(2)(i). EPA solicits comments on this proposed 
determination, including whether the data category determination is 
appropriate as well as whether the appropriate data elements were 
assigned to this category.
    Use of Continuous Monitoring Systems (CEMS). EPA notes that in many 
cases the use of CEMS reduces the number of data parameters required to 
be reported. Many subparts allow facilities to choose between using 
CEMS and using source-category specific GHG calculation procedures. 
This action proposes that for direct emitting facilities, inputs to 
emission calculation equations are ``emission data'' and would be 
released. However, if a facility chooses to use CEMS to determine 
CO2 emissions from a particular process, then emissions are 
directly measured, and the facility would have no reported data 
elements that are inputs to CO2 emission equations. For 
example, all ammonia production facilities must report the amount of 
feedstock used; however, under the proposed determinations, this data 
would be treated as confidential only for facilities using CEMS. For 
facilities that do not use CEMS, the feedstock data would not be 
eligible for confidential treatment since it is used as inputs to the 
mass balance equations provided in 40 CFR part 98, subpart G and would 
be considered ``emission data''.
    In addition, facilities that use CEMS generally have to report 
fewer data elements than those using emission equations. For example, 
ammonia production facilities that do not use CEMS must report the 
carbon content, as well as the amount, of each feedstock used. 
Therefore, by using CEMS, a reporting facility would be required to 
submit a more limited range of data elements, thereby potentially 
alleviating any concern for other data not required.
    EPA recognizes that there are some situations where use of a CEMS 
for one GHG will not avoid release of data elements used to calculate 
emissions of other GHGs. For example, many facilities that use CEMS to 
determine CO2 emissions from stationary combustion sources 
will use calculation procedures to determine CH4 and 
N2O emissions from the same combustion sources. In this 
case, reported data elements such as fuel use and higher heating value 
(HHV) for these combustion units would be inputs to emission equations 
for CH4 and N2O emission calculations and would 
therefore be released, regardless of the fact that CEMS are used to 
determine CO2 emissions.
    EPA solicits comments on whether and to what extent the use of CEMS 
would relieve industry concerns regarding making data available to the 
public. We specifically solicit comment on the extent to which industry 
would take advantage of the option if EPA added CEMS methodologies for 
CH4 and N2O to the Mandatory Reporting Rule where 
appropriate.
5. The Calculation Methodology and Methodological Tier Category
    EPA proposes to determine that the reported calculation methodology 
and the methodological tier used by a reporting facility to calculate 
its GHG emissions are ``emission data'' under 40 CFR 2.301(a)(2)(i).
    Description of data elements. Data elements included in this 
category are the methodology used by a reporting facility to calculate 
its annual GHG emissions under Part 98, including the

[[Page 39110]]

methodological tiers used to calculate CO2 emissions from 
fuel combustion under 40 CFR part 98, subpart C. This category also 
includes data elements that are used to determine the correct 
calculation method or to select the correct input for a GHG emission 
calculation.
    Each subpart of Part 98 specifies the method(s) that must be used 
to calculate GHG emissions. Some subparts allow a choice of two or more 
specified alternative methods. When this occurs, the rule requires that 
the method chosen be reported. The methods vary by subpart but may 
include, for example, the following:
     Using a ``mass balance'' approach to calculate GHG 
emissions based on the amount and carbon content of the raw materials 
fed to the manufacturing process and the amount of carbon that is 
removed from the process in the final product and waste streams.
     Using a mass balance approach to calculate GHG emissions 
based on the amount of GHGs used in a manufacturing process, the 
utilization rate of GHG in the process, and the fraction of excess GHG 
destroyed by an abatement device.
     Using a site-specific GHG emission factor determined from 
stack testing and measurements of process parameters during the test.
     Calculating GHG emissions from default emission factors 
provided in Part 98 and the amount of material consumed as either a 
fuel or raw material in a manufacturing process.
     Monitoring GHG emissions directly from a stack or vent 
using a CEMS.
    40 CFR part 98, Subpart C (General Stationary Fuel Combustion 
Sources) specifies four different methodological ``tiers'' for 
calculating CO2 emissions. The lowest tier (Tier 1) uses 
default heating values and default CO2 emission factors 
listed in Part 98 (by fuel) to calculate CO2 emissions. The 
highest tier (Tier 4) uses CEMS to measure CO2 emissions 
directly. Tiers 2 and 3 use data from measurements of heating value 
and/or carbon contents of the fuels combusted at a facility to 
calculate CO2 emissions. Reporters are required to report 
which tier was used to calculate emissions.
    In addition to which method or tier was used, this category also 
contains data elements that are used to determine which calculation 
methodology must be used. For example, in 40 CFR part 98, subpart C, 
the tier(s) that a facility is allowed to use depends on the size of 
the combustion unit, the type of fuel(s) combusted, and whether there 
is existing fuel and emissions monitoring at the reporting facility. In 
40 CFR part 98, subpart Y (Petroleum Refineries), the maximum rated 
throughput is used to determine which calculation method is used for 
catalytic cracking units and fluid coking units. Therefore, these data 
elements are included in this data category.
    This data category also includes the calculation methods submitted 
in applications for approval of alternative methods from adipic acid 
and nitric acid facilities and BAMM extension requests, and the methods 
and other information included in or required to be reported by a 
Geologic Sequestration MRV Plan.
    Examples of data elements in this category include the following:
     The tier used to determine CO2 emissions from 
each stationary combustion unit under 40 CFR part 98, subpart C.
     Criteria needed to decide which tier is allowed to be used 
to determine CO2 emissions from each stationary combustion 
unit under 40 CFR part 98, subpart C (e.g., size of the combustion 
unit, and the type of fuel(s) combusted).
     Whether process emissions were determined using the carbon 
mass balance method or whether the site-specific emission factor method 
was used to determine CO2 emissions (e.g., 40 CFR part 98, 
subpart Q Iron and Steel Production).
     Whether the facility used a measured value, default 
emission factor, or unit-specific emission factor to determine 
CH4 and N2O emissions (e.g., 40 CFR part 98, 
subpart Y Petroleum Refineries).
     Whether CO2 emissions were calculated using the 
trona input method, the soda ash output method, or a site-specific 
emission factor method (e.g., 40 CFR part 98, subpart CC Soda Ash 
Manufacturing).
     Method used for estimating waste disposal quantity and 
reason for its selection (e.g., 40 CFR part 98, subpart HH Municipal 
Solid Waste Landfills).
     Proposed alternative method for determining emissions from 
adipic acid or nitric acid production facilities, including the 
calculation method, test methods (as applicable), monitoring, QA/QC, 
and missing data procedures) submitted in applications for approval of 
alternative methods (40 CFR part 98, subparts E and V).
     Identification of the parameter, subpart, and rule 
citation for which a BAMM extension is requested (40 CFR part 98, 
subpart A).
     Methods and other data submitted in MRV Plans (including 
methods for detecting and quantifying any CO2 leakage to the 
surface, methods assessing the risk of leakage of CO2 to the 
surface from geologic sequestration, methods for establishing pre-
injection environmental baselines, and any other information included 
in the MRV Plan (e.g., location and depth of all potential leakage 
pathways, qualitative descriptions of each potential leakage pathway; 
methods used to characterize the site)), and any data required by an 
approved MRV plan to be submitted to EPA in the annual report (proposed 
40 CFR part 98, subpart RR, 75 FR 18576, April 12, 2010).
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in the Calculation Methodology and 
Methodological Tier Category are ``emission data'' under 2.301(a)(2) 
because they are ``information necessary to determine * * * the 
amount'' of any emission emitted by the source.
    The method (including the methodological tiers in 40 CFR part 98, 
subpart C) used by a direct emitter to calculate emissions is 
``emission data'' under 40 CFR 2.301(a)(2) because it is information 
necessary for the reporter to actually calculate the emissions and for 
EPA and the public to verify that an appropriate method was used. The 
method used by a facility is important for determining whether the 
facility selected the appropriate equations and used appropriate inputs 
to the calculations. For example, if a facility chooses to use a 
default emission factor method, they must select the appropriate factor 
provided in the rule, whereas if they select a site-specific emission 
factor method, they must collect additional data to support their own 
factor. Therefore, data elements that are used to determine what 
methodology is required (or allowed) to be used are also necessary to 
determine emissions because these data are also needed to determine 
whether the reporter selected the appropriate equations and inputs.
    As discussed in Section I.C of this preamble, the 1991 EPA notice 
of policy provided a list of information that EPA considered to 
constitute ``emission data'' under 40 CFR 2.301(a)(1)(2)(i). That list 
includes ``emission estimation method (e.g., the method by which an 
emission estimate has been calculated such as material balance, source 
test, use of AP-42 emission factors, etc.),'' which are the same type 
of data elements as those in this data category and would include 
methods already provided in Part 98, as well as alternative methods 
included in applications submitted by adipic acid and nitric acid 
facilities (40 CFR part 98, subparts E and V) and the methods included 
in MRV Plans submitted by geologic sequestration facilities

[[Page 39111]]

(proposed 40 CFR part 98, subpart RR, 75 FR 18576, April 12, 2010). In 
addition to the methods included in the MRV Plans, EPA has concluded 
that the supporting documentation (e.g., location and description of 
potential leakage pathways, frequency of monitoring, and the strategy 
for detecting leaks) are integral to the ``emission estimation method'' 
selected and are therefore also considered to be ``emission data''.
    Summary. EPA is proposing to determine that the data elements in 
the Calculation Methodology and Methodological Tier Category are 
``emission data'' as defined in 40 CFR 2.301(a)(2)(i). EPA solicits 
comments on this proposed determination, including whether the data 
category determination is appropriate as well as whether the 
appropriate data elements were assigned to this category. In 
particular, EPA seeks comment on whether any specific elements, 
methods, or supportive material that could be part of an MRV plan 
should not be determined to be ``emission data'', and if so which 
specific elements, methods, or supportive material. If commenters 
believe that specific MRV plan elements, methods, or supportive 
material should not be determined to be ``emission data'', please 
comment on why the data element does not fall within the regulatory 
definition of emission data as well as whether you think the data 
elements are CBI, and if so why.
6. The Data Elements Reported for Periods of Missing Data That Are Not 
Inputs to Emission Equations
    EPA proposes to determine that the data elements that must be 
reported during missing data periods that are not inputs to emission 
equations are ``emission data'' under 40 CFR 2.301(a)(2)(i).
    Description of data elements. Data elements in this category 
include information that is reported when data specified in Part 98 for 
calculating annual GHG emissions are missing. This category does not 
include the numeric values used as substitutes for missing data.\10\ 
Rather, this category includes data elements that indicate the overall 
quality and reliability of the reported GHG emissions, such as the 
number of times substitute values are used and the method used to 
determine a substitute value.
---------------------------------------------------------------------------

    \10\ Numeric values used as substitutes for missing data are 
included in the Inputs to Equations Data Category, since these 
values are used to calculate GHG emissions during periods when data 
was not collected in accordance with the monitoring methods 
specified in the applicable subpart (e.g., during periods of 
equipment failure or malfunction).
---------------------------------------------------------------------------

    Each subpart of Part 98 has a section that specifies how values are 
to be generated as substitutes for missing data. For example, if the 
high heating value or carbon content of a fuel is missing, a substitute 
value is generated by using the arithmetic average of the quality 
assured value of that parameter immediately preceding and following the 
missing data incident. If a source is using a CEMS to measure GHG 
emissions, then the subpart will specify that the missing data 
procedures in 40 CFR part 75 should be followed. In other cases, a 
subpart may specify that the reporter can substitute for missing data 
an estimate derived from the best available process information from 
the source.
    The Missing Data Category contains the following data elements that 
all facilities are required to report under 40 CFR part 98, subpart A:
     Identification of each data element used as an input for 
estimating annual GHG emissions for which a missing data procedure was 
used.
     The total number of hours in the year that a missing data 
procedure was used for each data element.
    The source category subparts specify any other information that 
must be included in annual GHG reports when substitute values are used 
as inputs for estimating emissions in place of missing values. Provided 
below are some additional examples of the data elements in the Missing 
Data Category:
     Number of times missing data procedures were used to 
estimate missing data, such as carbon content and molecular weight of 
fuels (40 CFR part 98, subpart C), carbon content of raw materials (40 
CFR part 98, subparts BB and EE), phosphate rock consumption (40 CFR 
part 98, subpart Z), and hourly CO2 concentration (40 CFR 
part 98, subpart CC).
     The time period during which missing data procedures were 
used, such as the percentage of operating hours in which substitute 
values are used for CO2 concentrations (40 CFR part 98, 
subpart C).
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in the Missing Data Category are ``emission 
data'', as defined at 40 CFR 2.301(a)(2)(i) because the identification 
of data elements for which substitute values were used and the methods 
used to estimate substitute values are needed to determine whether a 
reasonable methodology was used to determine substitute values and 
whether the annual GHG emissions are correctly calculated. Part 98 
requires sources to calculate annual mass emissions (metric tons per 
year) for each GHG. Therefore, every period of emissions must be 
considered, even if the monitors needed to measure or calculate 
emissions are temporarily not operating correctly. Each subpart 
specifies the frequency with which certain data elements used to 
calculate GHG emissions need to be collected, and specifies procedures 
(or allows a choice of methods) to be followed if data are missing 
because they were not collected at the required frequency or the 
monitor is not operating properly.
    Identification of all periods of missing data and use of substitute 
data during such periods are necessary for determining the annual GHG 
emissions. In order to determine if the reported annual emission data 
are complete and the correct methods were used to determine substitute 
values, EPA needs to know when reported data values are substitutes for 
missing data and what method was used to calculate substitute data (for 
subparts that provide a choice or allow the reporter to develop and 
describe their own method). For the reasons stated above, the data 
elements in this data category are necessary to determine the amount of 
reported emissions and therefore qualify as ``emission data'' under 40 
CFR 2.301(a)(i).
    Summary. EPA proposes to determine that the data elements in the 
Missing Data Category are ``emission data'', as defined in 40 CFR 
2.301(a)(2)(i). EPA solicits comments on this proposed determination, 
including whether the data category determination is appropriate as 
well as whether the appropriate data elements were assigned to this 
category.
7. The Unit/Process ``Static'' Characteristics That Are Not Inputs to 
Emission Equations Category
    As explained in Section I.C of this preamble, EPA is proposing to 
determine that the data elements in this category (none of which are 
inputs to equations/calculation methods or information otherwise needed 
to calculate or determine emissions) are not ``emission data'' under 40 
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG 
emissions to be reported under Part 98. For the reasons stated below, 
EPA also proposes to determine that the data elements in this category 
are not CBI under CAA section 114(c).
    Description of data elements. Data elements in this category 
include basic characteristics of units, process units, general 
equipment, abatement devices,

[[Page 39112]]

and other facility-specific characteristics. Data elements in this 
category are ``static'' because they do not vary with time or with the 
operation of the process. The data elements assigned to this category 
are required to be reported under one or more direct emitter source 
category subparts of Part 98, but are not used as inputs to GHG 
emission equations provided in the rule.\11\ Static characteristics 
that are inputs to GHG emission equations are assigned to the Input to 
Equations Data Category.
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    \11\ Note that unit characteristics needed to determine what 
calculation or tier methodologies are allowed to be used (e.g., 
maximum rated heat input of a combustion unit used to determine the 
correct tier for 40 CFR part 98, subpart C) are assigned to the 
Calculation Methodology and Methodological Tier Category described 
in Section II.C.5. of this preamble and are not assigned to this 
category.
---------------------------------------------------------------------------

    The data elements that must be reported differ for each source 
category. Examples of data elements in this category include the 
following:
     Identification of the type of unit or process associated 
with the emissions (e.g., type of nitric acid process, type of smelter 
technology used, type of control device, type of abatement technology).
     The annual product production capacity of the unit or 
production process that is not used to determine a calculation method 
(e.g., maximum annual production capacity for each soda ash 
manufacturing line).
     The number of units (e.g., kilns, furnaces, boilers, etc.) 
at a facility.
     The type of emission control technology used.
     Description of each abatement system through which 
fluorinated GHGs or N20 flows at the facility, including 
associated tools and/or process for which the device treats exhaust, 
model number of each abatement device, and the manufacturers guaranteed 
destruction or removal efficiency (DRE) (proposed 40 CFR part 98, 
subpart I, 75 FR 18652, April 12, 2010).
     Description of the gas collection system, including 
capacity and number of wells in each gas collection system (40 CFR part 
98, subparts HH and TT).
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in this category are not CBI under CAA section 
114(c). EPA finds that the disclosure of the information is not likely 
to cause substantial harm to the competitive position of the businesses 
required to report these data elements under Part 98. The data elements 
in this category consist of general descriptions of the number and type 
of GHG emission units and emission control devices and do not reveal 
any proprietary information or any other information that could provide 
insight for competitors to gain an advantage. For example,
     The requirement in several subparts to report the type of 
process unit, equipment, or emission control technology used requires 
only reporting of the general equipment without disclosure of specific 
design details. For example, the requirement in 40 CFR part 98, subpart 
Y to report type of unit is satisfied by identifying that a unit is a 
fluidized catalytic cracking unit, thermal catalytic cracking unit, 
catalytic reforming unit, etc. These types of units are commonly used 
in the industry and no detailed specifications are required to be 
reported.
     The requirement to report information on the number, and 
characteristics of control and abatement devices is not likely to 
disclose information that is sensitive. The number and type of control 
devices located at a facility and the process units to which they are 
connected is information that is included in construction and operating 
permits and therefore already publicly available. The destruction 
efficiency of control devices is also publicly available from marketing 
materials published by the manufacturer. While the name of the 
manufacturer and the model number of the control device installed at a 
particular facility may not be publicly available, the disclosure of 
this information is not likely to reveal sensitive information 
regarding the production, manufacturing process design, or raw 
materials consumed. For example, the proposed 40 CFR part 98, subpart 
I, Electronics Manufacturing (75 FR 18652, April 12, 2010), requires 
reporters to describe the abatement systems used at each facility and 
provide the model number for each abatement system. This information 
does not disclose sensitive production information, such as the 
quantity and compositions of specific products produced of materials 
consumed at an electronics manufacturing facility, nor could it be used 
by competitors to devise competitive strategies to harm reporting 
parties.
     Descriptions of GHG collection systems and design 
capacities of landfills do not reveal information that is proprietary 
or sensitive in nature. For example, 40 CFR part 98, subpart HH, 
Municipal Landfills and 40 CFR part 98, subpart TT, Industrial 
Landfills require reporters to disclose the landfill design capacity 
and the number of wells in the gas collection system. These data are 
not likely to harm the reporters' competitive position. The number of 
wells in a gas collection system is not proprietary or sensitive 
information. It does not reveal any information about manufacturing 
processes or products and is unlikely to reveal any proprietary 
information on the design or operation of a landfill gas collection 
system. The landfill design capacity is routinely included in State 
solid waste permits and Part 70 operating permits so is often already 
publicly available.
     The number of units and the capacities of manufacturing 
process units (which are reported under various subparts) are routinely 
included in permits, such as Part 70 operating permits.
    As shown above, the information required by the data elements in 
this category is not the type of information that could provide 
competitors with business insights and/or a competitive advantage over 
the reporting facility. Further, the information to be reported is 
general and would not contain details regarding product 
characteristics, actual production data (e.g., raw material consumption 
and the quantity of product produced), or operating efficiency (e.g., 
amount of product produced per unit of raw material consumed). It does 
not provide data that could allow competitors to infer market share, 
production costs, or pricing structures. For the reasons stated above, 
EPA finds that releasing the data in this category would not be likely 
to cause substantial harm to the reporting business's competitive 
position.
    Further, certain data elements in this category are already being 
made publicly available. Facility and unit-level production capacity 
data for many industries subject to Part 98 are already available in 
the public domain as part of data released by other reporting programs 
or through reference materials available for purchase or through the 
Internet. Several publications contain production capacity for 
facilities. For example, production capacity for the iron and steel 
industry is available through the Association for Iron & Steel 
Technology (http://steellibrary.com). SRI's Chemical Economics Handbook 
publishes plant-level capacity data for both commodity and specialty 
chemicals (http://www.sriconsulting.com). The Energy Information 
Administration (EIA) publishes facility level capacity data for 
petroleum refineries, which is released annually in EIA's ``Refinery 
Capacity Report'' and on the Interned (http://www.eia.doe.gov). In 
addition, some State permits, such as Part 70 operating permits, 
contain maximum capacities of combustion units or manufacturing process 
units.

[[Page 39113]]

    Summary. For the reasons stated above, EPA is proposing to 
determine that the data elements in this category are not CBI under CAA 
section 114(c). EPA solicits comments on this proposed determination, 
including whether the data category determination is appropriate as 
well as whether the appropriate data elements were assigned to this 
category.
8. The Unit/Process Operating Characteristics That Are Not Inputs to 
Emission Equations Category
    As explained in Section I.C of this preamble, EPA is proposing to 
determine that the data elements in this category (none of which are 
inputs to equations/calculation methods or information otherwise needed 
to calculate or determine emissions) are not ``emission data'' under 40 
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG 
emissions to be reported under Part 98. For the reasons stated below, 
EPA proposes to determine that the data elements in this category are 
not CBI under CAA section 114(c).
    Description of data elements. Data elements in this category 
include the operating characteristics related to process and combustion 
units. Data elements in this category are ``operational'' because they 
change over time with changes in operations or processes. This category 
does not include unit/process operating characteristics that are inputs 
to the GHG emissions equations provided in Part 98.\12\ The data 
elements in this category that must be reported differ for each source 
category. Examples of types of data elements in this category include 
the following:
---------------------------------------------------------------------------

    \12\ Note also that unit characteristics that are needed to 
determine what calculation or tier methodologies are allowed to be 
used (e.g., fuel type used to determine the appropriate tier for 40 
CFR part 98, subpart C) are assigned to the Calculation Methodology 
or Methodological Tier Category described in Section II.C.5 of this 
preamble, and are not assigned to the unit/process operating 
characteristics category.
---------------------------------------------------------------------------

     Total number of source operating hours in the reporting 
year.
     Number of operating kilns.
     Description of the flare service, e.g., general, unit, 
emergency, or back-up for refineries (40 CFR part 98, subpart Y).
     Type of vessel into which material that has an equilibrium 
vapor-phase concentration of CH4 of 0.5 volume percent or 
greater is loaded (40 CFR part 98, subpart Y).
     Sampling analysis results for carbon content of consumed 
petroleum coke as determined for QA/QC of supplier data (40 CFR part 
98, subparts G, BB, and EE).
     Surface area of the landfill containing waste (40 CFR part 
98, subpart HH).
     Identification of combustion units that burned both 
process off-gas and supplemental fuel (40 CFR part 98, subpart X).
     Statement indicating whether any of the reported GHG 
emissions are from cogeneration units (proposed amendments to 75 FR 
18455, April 12, 2010).
     Reasons for applying for a BAMM extension request, 
anticipated date of installation of monitoring equipment, descriptions 
of actions the facility will take to obtain and install the monitoring 
equipment) (40 CFR part 98, subpart A).
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in this category are not CBI under CAA section 
114(c). EPA finds that the disclosure of the information is not likely 
to cause substantial harm to the competitive position of the businesses 
required to report these data elements under Part 98. Most of the data 
elements in this category consist of general information on number of 
operating units, operating hours, vessel type and for four subparts the 
results of QA/QC sample analysis and do not reveal any proprietary 
information or any other information that would likely provide insight 
for competitors to gain an advantage. For example,
     The requirement in 40 CFR part 98, subpart Y to describe 
the flare service (how the flare is utilized) is satisfied by 
describing whether the flare was used as a general facility flare, a 
unit flare, or an emergency/back-up flare during the reporting year. 
Flares are commonly used in the industry for these purposes and no 
detailed specifications are required to be reported.
     Similarly, the disclosure of general information reported 
in 40 CFR part 98, subpart HH, such as the surface areas of the 
landfill containing waste does not disclose proprietary information. 
Surface area containing waste can be readily observed, e.g., from 
touring the landfill or aerial photos, so is already available and not 
entitled to confidential treatment.
     Releasing information, such as the number of operating 
kilns (40 CFR part 98, subpart H) or the total number of operating 
hours in the reporting year for combustion units (40 CFR part 98, 
subpart C), does not disclose actual production rates of various 
products nor could it be used to determine production rate or 
production capacity. It also does not reveal details about the 
production processes used, or other information (e.g., production 
efficiency, production costs, or pricing structure) that a competitor 
could use to develop marketing strategies to undermine the reporter's 
competitive position.
     Identifying the combustion units that burned both process 
off-gas and supplemental fuel under 40 CFR part 98, subpart X provides 
no specific details on equipment design or confidential manufacturing 
processes. Combustion of process off-gas is a common practice for 
petrochemical production facilities, where destruction of waste gases 
exhausted from process units is frequency used to comply with other 
regulations (e.g., 40 CFR part 60 and part 63) and therefore, is 
information that is generally included in Part 70 operating permits.
     Stating whether cogeneration units were used during the 
reporting units as proposed in the amendments to 40 CFR part 98, 
subpart A (75 FR 18652, April 12, 2010) does not reveal information 
about the type, number, or operating hours of the cogeneration units 
located at a facility, or reveal sensitive information about a 
production process.
    As explained above, the information required by the elements in 
this category is not the type of information that could provide 
competitors with business insights and/or a competitive advantage over 
the reporting facility. Further, the information to be reported is 
general and could not contain details regarding product 
characteristics, actual production data (e.g., raw material consumption 
or quantity of product produced), or operating efficiency (e.g., amount 
of product produced per amount of raw material consumed). It does not 
provide information that could allow competitors to infer market share, 
production costs, or pricing structures and thus gain a competitive 
advantage.
    There is one type of data element in this category, the results of 
QA/QC sampling for 40 CFR part 98, subparts G, N, BB, and EE that are 
specific numerical values dealing with material composition that could 
be considered sensitive or proprietary information. These carbon 
contents are not used as inputs in emission equations. Rather they are 
measured only once a year for the purposes of QA/QC of the composition 
data provided to the facility by the suppliers of their raw material 
and used as inputs to the emission calculations. The numerical values 
obtained from the annual QA/QC sampling should be consistent with the 
carbon content data provided by suppliers. As discussed in Section 
II.C.4 of this preamble, the carbon content data provided by suppliers 
is included as a data element in Inputs to Equations Category, which 
EPA proposes to

[[Page 39114]]

determine is ``emission data'' as defined in 40 CFR 301(a)(2)(i) and 
make publicly available. Therefore, release of the annual QA/QC 
sampling results data element could not reveal any substantive 
additional information regarding the composition of materials because 
the carbon content data provided by the raw material supplier would be 
publicly available.
    For these reasons stated above, EPA finds that releasing the data 
in the category is not likely to cause substantial harm to the 
reporting business's competitive position.
    Further, the same data are already being submitted and made 
available to the public under other Federal programs. For example, for 
electricity generating units, the Acid Rain program already releases 
unit operating characteristics such as operating hours and fuel type 
for combustion units, which are the same data to be reported under 40 
CFR part 98, subparts C and D.
    Summary. For the reasons stated above, EPA proposes to determine 
that the data elements in this category are not CBI under CAA section 
114(c). EPA solicits comments on this proposed determination, including 
whether the data category determination is appropriate as well as 
whether the appropriate data elements were assigned to this category.
9. The Test and Calibration Methods Category
    As explained in Section I.C of this preamble, EPA is proposing to 
determine that the data elements in this category (none of which are 
inputs to emission equations or information otherwise needed to 
calculate or determine emissions) are not ``emission data'' under 40 
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG 
emissions to be reported under Part 98. For the reasons stated below, 
EPA also proposes to determine that the data elements in this category 
are not CBI under CAA section 114(c).
    Description of data elements. Data elements in this category 
include information about the site-specific calibration methods used to 
calibrate monitoring instruments required by Part 98, frequency of 
sampling and analysis, test methods used for performance tests, and 
methods for analyzing compositions of materials. Each of the data 
elements in this category is required to be reported under one or more 
source category subparts in Part 98. Examples of data elements in this 
category include the following:
     Frequency at which sampling and analysis is performed. For 
example, the frequency with which samples of fuel are collected and 
analyzed for HHV, carbon content, and molecular weight (40 CFR part 98, 
subpart C).
     Method used for:

--Determining quantity of feedstock.
--Determining carbon content.
--Tracking startups, shutdowns, and malfunctions.
--Determining quantity of lime and lime byproduct/waste sold (e.g., 40 
CFR part 98, subpart S Lime Manufacturing).
--Estimating municipal waste composition from other or more refined 
waste categories (e.g., 40 CFR part 98, subpart HH Municipal Solid 
Waste Landfills).
--Determining the average carbon content of coke (e.g., for catalytic 
cracking units and coking units under 40 CFR part 98, subpart Y 
Petroleum Refineries).

     Test method used for performance tests (stack emission 
tests) (e.g., 40 CFR part 98, subpart V Nitric Acid Production).
     Indication of whether the fraction of CH4 in 
landfill gas was determined based on measured values or the default 
value (e.g., 40 CFR part 98, subpart HH Municipal Solid Waste 
Landfills).
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in this category are not CBI under CAA section 
114(c). EPA finds that the disclosure of the information is not likely 
to cause substantial harm to the competitive position of the businesses 
required to report these data elements under Part 98. The data elements 
in this category consist of general descriptions of methods and the 
frequency of conducting performance tests or sample analysis for the 
purposes of determining values used as inputs to equations. The data 
elements in this category do not reveal the numerical results of such 
tests. The data elements do not reveal any proprietary information or 
any other information that would likely provide insight for competitors 
to gain an advantage. For example,
     Data elements such as methods and frequencies used to 
determine the carbon content and HHV of various materials do not reveal 
proprietary information and are not likely to provide insight into the 
composition of materials used or other sensitive information related to 
raw materials consumption. The analytical method and frequency of 
analysis does not reveal any numerical data on material composition and 
the limited information on material type that is revealed is either 
already common knowledge or is reported information that is necessary 
to determine the GHG emissions. For example, the method used by a 
titanium dioxide production facility (40 CFR part 98, subpart EE) to 
determine the carbon content of their petroleum coke could not reveal 
any proprietary information on the raw materials used since it is 
common knowledge that petroleum coke is a raw material for the 
production of titanium dioxide. Similarly, the method used to determine 
the carbonate content of raw materials used at a glass production 
facility (40 CFR part 98, subpart N) could not reveal any additional 
substantive information because detailed data on each raw material must 
be reported and is used as inputs to the equations. As discussed in the 
``Inputs to Equations'' in Section II.C.4 of this preamble, EPA 
proposes that inputs to equations are ``emission data'' and would be 
publicly released.
     Similarly, the disclosure of measurement dates, locations 
and methods used for performance tests, locations of flow measurements, 
or types of meters used does not provide specific operational details 
about production processes. It also does not provide any numerical 
information about amounts or composition of products or raw materials 
consumption.
     The requirement in 40 CFR part 98, subpart Y to provide 
the basis for the average carbon content of coke is satisfied by 
identifying the means by which the value was determined. Details 
regarding the actual measured carbon content will not be disclosed.
    As explained above, the information required by the data elements 
in this category is not the type of information that could provide 
competitors with business insights and/or competitive advantage over 
the reporting facility. Further, the information to be reported are 
general and would not contain details regarding product 
characteristics, production data (e.g., raw material consumed or 
quantity of product produced), or operating efficiency (e.g., amount of 
product produced per unit of raw material consumed). It also does not 
provide data that could allow competitors to infer market share, 
production costs, and pricing structures and thus gain a competitive 
advantage.
    Further, information on the test methods and frequency of 
measurement are already being submitted and made available to the 
public under other Federal programs. For example, the Acid Rain program 
requires reporters to report the method used for determining fuel flow 
over a given period. This is the same type of information as the

[[Page 39115]]

requirement in 40 CFR 98.76, which requires ammonia manufacturers to 
report the method used to determine the quantity of liquid feedstock 
consumed using a flow meter. The Acid Rain program also requires 
reporting of the method used to determine fuel gross calorific value, 
which is identical to the requirement to report the method used to 
determine HHV required under various subparts of Part 98. As discussed 
in Section I.F of this preamble, the Acid Rain program currently makes 
all of the reported data available to the public.
    Summary. For the reasons stated above, EPA proposes to determine 
that the data elements in this data category are not CBI under CAA 
section 114(c). EPA solicits comments on this proposed determination, 
including whether the data category determination is appropriate as 
well as whether the appropriate data elements were assigned to this 
category.
10. The Production/Throughput Data That Are Not Inputs to Emission 
Equations Category
    As explained in Section I.C of this preamble, EPA is proposing to 
determine that the data elements in this category (none of which are 
inputs to equations/calculation methods or information otherwise needed 
to calculate or determine emissions) are not ``emission data'' under 40 
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG 
emissions to be reported under Part 98. For the reasons stated below, 
EPA proposes to determine that the data elements in this data category 
are CBI under CAA section 114(c).
    Description of data elements. Data elements included in this 
category are production and throughput data that are not used as inputs 
to calculate annual GHG emissions under Part 98. Each of these data 
elements is required to be reported under one or more of the direct 
emitting source category subparts of Part 98. The data elements that 
must be reported differ for each source category. Provided below are 
some examples of the data elements in this Category:
     Monthly or annual production quantity of products and 
byproducts, such as annual quantities of petrochemicals produced (40 
CFR part 98, subpart X), annual urea production (40 CFR part 98, 
subpart G), monthly cement production (40 CFR part 98, subpart H), 
annual production of ferroalloy products (40 CFR part 98, subpart K), 
annual glass production (40 CFR part 98, subpart N), synthetic 
fertilizer production (40 CFR part 98, subparts G and V), and annual 
amount of byproducts produced (40 CFR part 98, subpart S).
     Beginning and end of year inventories for byproducts and 
wastes (40 CFR part 98, subpart S).
     Annual quantity of products sold and not sold (40 CFR part 
98, subpart S).
     Product and byproduct characteristics, such as the type of 
petrochemical and other products produced (40 CFR part 98, subpart X), 
carbon content of wastes (40 CFR part 98, subpart EE), and the monthly 
results of chemical composition analysis of lime products and sold (40 
CFR part 98, subpart S).
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in this data category are entitled to 
confidential treatment because disclosure of these production and 
throughput data is likely to cause substantial harm to the competitive 
position of businesses required to report these data elements under 
Part 98. Disclosing a facility's production/throughput data could be 
detrimental to a firm's competitiveness by revealing confidential 
process information and operational and marketing strategies. For 
example:
     The disclosure of annual production quantities of 
products, used in conjunction with other publicly available data 
related to capacity, provides insight to a firm's operational strengths 
and weaknesses. Competitors could determine at what percent capacity a 
firm is operating, which can reveal information on the financial and 
competitive strength of the firm. For example, it could reveal that a 
manufacturer is operating well below capacity and likely experiencing 
financial difficulties. Having such information could allow competitors 
to narrow the competition by adjusting their prices to the further 
detriment of the reporting company, or to formulate other competitive 
strategies or corporate acquisition strategies to the detriment of the 
reporting company. Having information on the percent of capacity at 
which a firm is operating could also reveal whether a manufacturer has 
existing capacity available to take on new customers in a growing 
market or is already at their maximum production and would need to 
invest capital to expand capacity in order to produce more. Having such 
information could give competitors insights to make competitive 
decisions on expanding their own production rates or altering their 
pricing strategies to the detriment of the reporting company.
     The disclosure of annual production quantities--in 
particular, products sold and not sold--provide insight to a firm's 
market strength and position. Competitors could use production data to 
gain a competitive advantage over a firm by better approximating a 
firm's market share. For example, annual production data may reveal 
confidential information related to rapid growth or decline in market 
share, customer base, and marketing strategies. It might enable firms 
to tell which of their competitors won a contract/new customer they 
competed for. This could substantially harm the firm's competitive 
position because the information could enable competitors to devise 
strategies to steal specific customers or even key employees. Changes 
in the mix of products produced could reveal marketing strategies. In 
many cases, an accurate estimate of the market position of a firm is 
difficult to procure, and the disclosure of such information through 
Part 98 could lead to distortions in the market and could expose 
reporting parties to disadvantageous market conditions.
     Disclosure of facility-level production/throughput 
quantities and product compositions could give competitors insight into 
a firm's local and regional market conditions and expansion plans, 
enabling competitors to devise strategies to prevent expansion and to 
steal market share in specific locations. In general, competitors do 
not currently have access to actual facility production rates or other 
information that could allow them to assess competition and market 
conditions in regional detail, because publicly available financial and 
economic information is released at the corporate level rather than the 
facility level.
     Information about production quantities of each product 
and the product mix of a firm may enable competitors to determine the 
type of production process used (since different processes can have 
different characteristic product mixes). Such information is 
proprietary and public disclosure could substantially harm a firm's 
competitive position by revealing sensitive information. This 
information may also allow competitors to reasonably infer the types 
and approximate amounts of feedstocks consumed, which may enable 
competitors to devise strategies to compete for raw material resources. 
If in addition to production quantities, feedstock consumption data are 
also released under Part 98, competitors could use the combination of 
production and feedstock consumption data to expose sensitive 
information such as operating efficiencies (amount

[[Page 39116]]

of product produced per unit of raw material consumed) and allow 
competitors to infer production costs and pricing structures. 
Competitors could use such information to steal market share by 
undercutting a firm's pricing structure.
     Information about the chemical composition of products may 
allow competitors to reasonably infer the types of feedstocks or raw 
materials consumed. This may enable competitors to devise strategies to 
compete for resources and harm the competitive position of reporting 
entities by otherwise driving up the costs of materials used for 
production.
    Summary. For the reasons stated above, EPA proposes to determine 
that data elements in this category are CBI under CAA section 114. EPA 
solicits comments on this proposed determination, including whether the 
data category determination is appropriate as well as whether the 
appropriate data elements were assigned to this category.
    Release of Aggregated Production Data. For data elements in this 
category, EPA could release the data in an aggregated format that would 
maintain the confidentiality of the data. For example, EPA could 
release production data aggregated at the national level for all 
sources in each source category. EPA solicits comments on whether and 
in what ways aggregated data would be useful to the public, and 
suggestions for ways in which the data could be aggregated without 
affecting the confidentiality of the underlying data.
11. The Raw Materials Consumed That Are Not Inputs to Emission 
Equations Category
    As explained in Section I.C of this preamble, EPA is proposing to 
determine that the data elements in this category (none of which are 
inputs to equations/calculation methods or information otherwise needed 
to calculate or determine emissions) are not ``emission data'' under 40 
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG 
emissions to be reported under Part 98. For the reasons stated below, 
EPA also proposes to determine that the data elements in this data 
category are CBI under CAA section 114(c).
    Description of data elements. Data elements included in this 
category are the amount and composition of raw materials (excluding 
fuel) consumed as inputs to the production process or received for 
other uses on site. This category does not include raw materials 
consumed that are inputs to the equations provided in Part 98 for 
calculating annual GHG emissions. Each of the data elements in this 
category is required to be reported under one or more subparts of Part 
98. Provided below are some examples of the data elements in this 
category:
     Annual quantity of feedstock consumed (40 CFR part 98, 
subpart G).
     Annual quantity of carbonate based-raw material charged 
(40 CFR part 98, subpart N).
     Annual mass of reactants fed into a process (40 CFR part 
98, subpart O).
     Names of carbon-containing feedstocks (40 CFR part 98, 
subpart X).
     Annual arithmetic average percent inorganic carbon in 
phosphate rock from monthly records (40 CFR part 98, subpart Z).
     Annual steam purchases (40 CFR part 98, subpart AA).
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in this data category are CBI under CAA section 
114(c) because the disclosure of these data could cause substantial 
harm to the competitive position of businesses reporting these data. 
Releasing these data would likely be detrimental to the operational and 
marketing strategies of the reporting facilities. For example:
     The disclosure of the amount of feedstocks consumed and 
reactants fed into particular processes at a facility could provide 
insight into a facility's operational strengths and weaknesses. 
Competitors could determine at what percent capacity a facility is 
operating sensitive details such as detailed manufacturing processes 
and product chemistries.
     Information about feedstock quantities and composition 
could expose a firm's competitive and marketing strategies. For 
example, a record showing significant consumption of a particular raw 
material resource may indicate to competitors that a firm is seeking 
entry into a new market, enabling the competitors to devise disruptive 
strategies.
     Information about feedstock quantities and composition 
could reveal a firm's suppliers and sourcing strategies. Among other 
things, competitors could use this information to create new strategies 
to compete for raw material resources and to obtain similar production 
cost structures.
     Disclosure of facility-level (and in some cases the unit 
or process level) raw material consumption and composition data could 
give competitors insight into a firm's local and regional market 
conditions, enabling competitors to devise strategies to steal market 
share in specific locations. In general, competitors do not currently 
have access to actual facility or unit-level raw material information 
that could allow them to assess competition and market conditions in 
regional detail, because publicly available financial and economic 
information is released at the corporate level rather than the facility 
level.
     Information about feedstock consumption may enable 
competitors to determine the type of manufacturing processes used since 
processes vary by raw material consumption characteristics. This 
information may also allow competitors to reasonably infer production 
quantities of each product and the product mix of a facility. If in 
addition to raw materials consumption, production quantities data are 
also released under Part 98, competitors could use the combination of 
production and feedstock consumption data to expose sensitive 
information such as operating efficiencies (amount of product produced 
per unit of raw material consumed) and allow competitors to infer 
production costs and pricing structures. For example, disclosing the 
annual amount of steam purchases reported under 40 CFR part 98, subpart 
AA, in combination with other production data, may reveal a facility's 
operating efficiency. Competitors could use such information to steal 
market share by undercutting a firm's pricing structure.
    Summary. For the reasons stated above, EPA proposes to determine 
that data elements in this category are CBI under CAA section 114. EPA 
solicits comments on this proposed determination, including whether the 
data category determination is appropriate as well as whether the 
appropriate data elements were assigned to this category.
12. The Process-Specific and Vendor Data Submitted in BAMM Extension 
Requests Category
    As explained in Section I.C of this preamble, EPA is proposing to 
determine that the data elements in this category (none of which are 
inputs to equations/calculation methods or information otherwise needed 
to calculate or determine emissions) are not ``emission data'' under 40 
CFR 2.301(a)(2)(i) for purposes of determining the direct emitters' GHG 
emissions to be reported under Part 98. For the reasons stated below, 
EPA also proposes to determine that the data elements in this data 
category are CBI under CAA section 114(c).
    Description of data elements. The data elements in this category 
include

[[Page 39117]]

certain information submitted by reporters in petitions to extend the 
use of BAMM. These data elements are submitted once, as part of the 
petition, and are not submitted on a recurring basis in the annual GHG 
reports. Part 98 allowed use of BAMM for the first three months of 
2010. A petition process was established in 40 CFR 98.3(d)(2) allowing 
facilities to submit, for EPA approval, requests to extend the use of 
BAMM beyond March 31, 2010. Similar allowances to submit BAMM requests 
are included in proposed rule amendments (see 75 FR 18652, April 12, 
2010 and 75 FR 18576, April 12, 2010). Much of the information 
submitted in BAMM requests, such as facility identification and 
location information and planned dates by which full monitoring 
equipment will be installed are classified in other data categories. 
However, some of the petitions received contain detailed process design 
information, vendor and cost information that are not technically 
similar to other data collected through Part 98. Provided below are 
some examples of the data elements in this Category:
     Location where each monitor will be installed. Process 
diagrams may be included to show specific locations.
     Information on alternative monitoring equipment suppliers 
and delivery dates investigated.
     Supporting documentation demonstrating that it is not 
possible to isolate the equipment and install monitoring instruments 
without a full process unit shutdown.
     Information on process unit shutdowns including frequency 
and dates of previous and planned shutdowns.
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in this data category are CBI under CAA section 
114(c) because the disclosure of these process-specific and vendor data 
submitted with BAMM extension requests is likely to cause substantial 
harm to the competitive position of businesses submitting these 
requests under Part 98. Disclosure could allow competitors to gain 
insight into the specific processes used by the facility that they 
could use to gain a competitive advantage. For example:
     The disclosure of process design diagrams submitted to 
show monitor location or to show that it is not possible to install 
monitoring equipment without a process unit shutdown could allow 
competitors to determine the type of process, specific equipment, and 
sequence of process steps used in the reporter's manufacturing process. 
Such information is often proprietary, and public disclosure could 
reveal trade secret or sensitive information and substantially harm a 
firm's competitive position. The process configuration diagrams could 
also be used by a competitor to gain insight into whether the facility 
has multiple or interconnected lines to produce products, likely 
bottlenecks, potential spare capacity, and flexibility to produce 
alternative products. This could provide competitors with insight into 
a petitioner's operational strengths and weaknesses. Such process-
specific information could be used to infer information on production 
costs, pricing structures, and the ability of a firm to respond to 
changing market conditions. Having such information could give 
competitors insights to make competitive decisions on expanding their 
own production rates or altering their pricing strategies to the 
detriment of the reporting company.
     Information provided in the petition about their 
communications with alternative suppliers, delivery dates, and 
backorder notices could reveal a variety of information that the 
facility submitting the BAMM requests and their suppliers consider 
sensitive. For example, documentation could include information on the 
exact equipment being ordered and/or price quotes. This information 
could be used by competitors of the reporter submitting the petition to 
infer the costs the reporter is paying to comply with mandatory 
reporting rule, which is sensitive information. It could also be used 
by competitors of the firms supplying monitoring equipment quotes to 
undercut prices or offer better delivery schedules and gain a 
competitive advantage. Documentation pertaining to the investigation 
and ordering of monitoring equipment could also include specific 
information about the process stream characteristics in the process 
lines being monitored. Such information might be provided to a supplier 
to be sure the monitoring equipment could withstand the process 
conditions (e.g., corrosive chemicals, temperatures) that the 
monitoring equipment will encounter. This information could allow 
competitors to gain insight into the production processes used by a 
facility and assist them in formulating competitive strategies as 
described in the preceding paragraph.
     Information and frequency and schedule for process unit 
shutdowns could give competitors an understanding of the amount of 
process downtime and insight into process efficiency. It could also be 
used to infer if process modifications are being made (e.g., if there 
is a long shutdown). Knowledge about periods when a process unit will 
be shutdown and potentially have trouble supplying demand for a product 
could allow competitors to develop strategies to steal customers during 
such periods.
    Summary. For the reasons stated above, EPA proposes to determine 
that data elements in this category are CBI under CAA section 114. EPA 
solicits comments on this proposed determination, including whether the 
data category determination is appropriate as well as whether the 
appropriate data elements were assigned to this category.

D. Suppliers

    Part 98 also requires reporting from suppliers of products the use 
of which would or could release GHG emissions. Specifically, suppliers 
of fossil fuel products or industrial gases listed in 40 CFR 98.2(a)(4) 
are required to report. The data reported under the supplier source 
categories differ from those required to be reported under the direct 
emitting source categories discussed in section II.C. of this preamble. 
Instead of reporting direct emissions to the atmosphere from their 
facilities and related information, suppliers report the quantities of 
fuel products or industrial gases they supply into the economy or 
export to another country, and the estimated GHG emissions that would 
or could ultimately be released when the fuels they supply are 
combusted or the industrial gases they supply are released.
    This section of the preamble covers all of the data elements 
required to be reported by the supplier source categories (subparts). 
Some facilities that are producers of fuels or industrial gases must 
report under both the direct emitter source categories and supplier 
source categories. For example, petroleum refineries must report the 
data elements required by 40 CFR part 98, subpart Y (Petroleum 
Refineries) and 40 CFR part 98, subpart MM (Suppliers of Petroleum 
Products). The data elements reported under direct emitter subparts 
(e.g., 40 CFR part 98, subpart Y) are discussed in Section II.C of this 
preamble. In general, the data reported under the direct emitter and 
supplier categories are different. For example, 40 CFR part 98, subpart 
Y does not require reporting of product-specific production quantities 
and compositions that are reported under 40 CFR part 98, subpart MM. In 
a few cases, facilities that are subject to both a direct emitter 
subpart and a supplier subpart are required to

[[Page 39118]]

submit the same information under both subparts. For example, the 
proposed direct emitter 40 CFR part 98, subpart L (Fluorinated Gas 
Production)(75 FR 18652, April 12, 2010) and the supplier 40 CFR part 
98, subpart OO (Suppliers of Industrial GHGs) both require facilities 
subject to these subparts to report the mass of each fluorinated gas 
produced by each process. In these cases, we assigned each data element 
reported under 40 CFR part 98, subpart L to the appropriate direct 
emitter data category and each data element reported under 40 CFR part 
98, subpart OO to the appropriate supplier data category. However, the 
proposed determination that the data element is CBI is the same for the 
data element reported under the proposed direct emitter subpart L and 
the supplier 40 CFR part 98, subpart OO. In all instances where the 
same information is reported under both a direct emitter and a supplier 
source category, the proposed confidentiality determination is the same 
for both elements.
    This section also covers certain data elements from proposed 40 CFR 
part 98, subpart RR (Injection and Geological Sequestration of 
CO2) that are related to the injection and sequestration of 
CO2. All other data elements for proposed 40 CFR part 98, 
subpart RR are covered in Section II.C of this preamble because they 
relate to direct emissions from surface equipment and emissions from 
the leakage of CO2 from geologic sequestration.
    As previously mentioned, EPA has grouped the supplier data elements 
in Part 98 into 11 data categories and proposes to determine, by 
category, whether the data elements are entitled to confidential 
treatment. As discussed in Section I.C of this preamble, EPA proposes 
to determine that none of the categories qualify as emission data. This 
section describes the data elements within each of the 11 supplier data 
categories and EPA's proposed determination as to whether the data 
elements in each supplier category are CBI under CAA section 114(c).
1. Data Categories and Confidentiality Analysis
    The 11 data categories for suppliers are as follows and are further 
described in Sections II.D.2 through II.D.12 of this preamble:
     GHGs reported.
     Production/throughput quantities and composition.
     Identification information.
     Unit/process operating characteristics.
     Calculation, test, and calibration methods.
     Data elements reported for periods of missing data that 
are not related to production/throughput or materials received.
     Emission factors.
     Amount and composition of materials received.
     Data elements reported for periods of missing data that 
are related to production/throughput or materials received.
     Supplier customer and vendor information.
     Process-specific and vendor data submitted in BAMM 
extension requests.
    Sections II.D.2 through II.D.12 of this preamble describe EPA's 
proposed CBI determination and rationale for each of the 11 supplier 
data categories. A list of all the data elements in each category, by 
subpart, is provided in a memorandum (see Memorandum ``Data Category 
Assignments for Reporting Elements'' in Docket EPA-HQ-OAR-2009-0924 and 
the Web site (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html).
2. The Greenhouse Gases Reported Category
    EPA proposes to determine that certain supplier GHG quantity data 
elements at the facility level (or importer/exporter level or LDC level 
for the subparts that require those entities to report) are not CBI 
under CAA section 114(c), but that most of the product-specific GHG 
quantity data are CBI. Some data elements in this category do not 
qualify as CBI because they are already publicly available. For 
reported GHG quantity data that are determined to be CBI, EPA intends 
to release such data only at aggregated levels.
    Description of the Data Elements. Under Part 98, suppliers of fuel 
products, industrial GHGs, and CO2 are required to report 
the annual quantity of each GHG that would or could be emitted from the 
complete combustion, oxidation, or use (i.e., 100 percent release) of 
the products they supply to the economy in a calendar year. These data 
elements are required under 40 CFR part 98, subpart A and the subparts 
of Part 98 that are applicable to suppliers. This data category also 
includes CO2 data reported under proposed 40 CFR part 98, 
subpart RR (Injection and Sequestration of CO2) (75 FR 
18576, April 12, 2010), including the quantities of CO2 
received, produced, and injected for geologic sequestration facilities. 
Examples of the data elements in this category include the following:
     Total quantity of CO2e (metric tons) aggregated 
for all GHGs from all applicable supply categories for the calendar 
year. This is the CO2e that would or could result from 
complete combustion or use of fuel products or industrial GHGs supplied 
in a calendar year (40 CFR part 98, subpart A).
     Quantity of each GHG from each applicable supply category 
(40 CFR part 98, subpart A).
     CO2 quantities that would be emitted from the 
complete combustion of each coal-based liquid fuel, each petroleum 
product, or each natural gas liquid supplied (40 CFR part 98, subparts 
LL, MM, NN) in a calendar year. Examples of individual products would 
be the different types and grades of gasoline, distillate fuel oils, 
petrochemical feedstocks, and other products supplied by a refinery as 
listed in Table MM-1 of 40 CFR part 98, subpart MM.
     CO2 quantities that would be emitted from 
complete combustion of each coal-based liquid fuel or petroleum product 
imported and exported (40 CFR part 98, subparts LL and MM) in a 
calendar year.
     CO2 quantities associated with annual volumes 
of natural gas received by LDCs, put into storage, withdrawn from the 
storage system, and delivered to transmission pipelines or end users 
(40 CFR part 98, subpart NN).
     Mass of each fluorinated gas and N2O produced 
and destroyed by industrial GHG producers; mass of each industrial GHG 
imported or exported (40 CFR part 98, subpart OO).
     Mass of each fluorinated gas imported or exported in pre-
charged equipment or closed-cell foams (proposed 40 CFR part 98, 
subpart QQ, 75 FR 18652, April 12, 2010).
     Mass of CO2 imported, exported, or supplied by 
a producer (40 CFR part 98, subpart PP).
     Mass of CO2 received, produced and injected for 
geologic sequestration (proposed 40 CFR part 98, subpart RR, 75 FR 
18576, April 12, 2010).
    Rationale for the Proposed Determination. Table 4 of this preamble 
describes the data elements in the supplier category subparts in Part 
98 that fall in the Greenhouse Gas Reported Category. Table 4 also 
indicates EPA's proposed determination of the confidential status of 
such data.

[[Page 39119]]



             Table 4--Proposed CBI Determination and Level of Release for Greenhouse Gases Reported
----------------------------------------------------------------------------------------------------------------
                                                                                             If CBI, intended
  Source category (part 98 subpart)        Data elements          Are these data CBI?      aggregated level of
                                                                                               release \a\
----------------------------------------------------------------------------------------------------------------
Suppliers of Coal-Based Liquid Fuels  Total facility-level     No.                       .......................
 and Petroleum Products (subparts LL   CO2e from subparts LL-
 and MM): Producers.                   PP \b\; Facility-level
                                       CO2 from each subpart
                                       \c\.
                                      Product-specific CO2...  Yes.....................  Release national
                                                                                          aggregation of CO2 by
                                                                                          product \d\ (e.g.,
                                                                                          national CO2 from No.
                                                                                          6 fuel oil aggregated
                                                                                          for all facilities in
                                                                                          subpart MM that supply
                                                                                          No. 6 fuel oil).
Suppliers of Coal-Based Liquids and   Total importer level     No.                       .......................
 Petroleum Products (subparts LL and   CO2e from subparts LL-
 MM): Importers.                       PP \b\; Importer level
                                       CO2 from each subpart
                                       \c\; Product-specific
                                       CO2.
Suppliers of Coal-Based Liquids and   Total exporter level     No.                       .......................
 Petroleum Products (subparts LL and   CO2e from subparts LL-
 MM): Exporters.                       PP; Exporter level CO2
                                       from each subpart \c\.
                                      Product-specific CO2...  Yes.....................  Release national
                                                                                          aggregation of CO2 by
                                                                                          product (e.g.,
                                                                                          national CO2 from No.
                                                                                          6 fuel oil aggregated
                                                                                          for all companies that
                                                                                          export No. 6 fuel
                                                                                          oil).
Suppliers of Natural Gas and NGLs     Total LDC-level CO2e     No.                       .......................
 (subpart NN): LDCs.                   from subparts LL
                                       through PP; LDC-level
                                       CO2 from subpart NN
                                       \c\; Product-specific
                                       CO2.
Suppliers of Natural Gas and NGLs     Total Facility-level     No.                       .......................
 (subpart NN): Fractionators.          CO2e from subparts LL
                                       through PP; Facility-
                                       level CO2 from subpart
                                       NN \c\.
                                      Product-specific CO2...  Yes.....................  Release national
                                                                                          aggregation of CO2 by
                                                                                          product (e.g.,
                                                                                          national CO2 from
                                                                                          propane aggregated for
                                                                                          all facilities that
                                                                                          supply propane).
Suppliers of Industrial GHGs          Total facility-level     No.\e\                    .......................
 (subpart OO): Producers.              CO2e from subparts LL
                                       through PP \b\.
                                      Facility-level GHG       Yes.....................  Release national
                                       quantities, by gas,                                aggregation, by GHG
                                       from subpart OO;                                   and product aggregated
                                       Product-specific GHG                               for all facilities
                                       quantities.                                        covered by subpart \f\
                                                                                          (e.g., national N2O
                                                                                          quantity from all
                                                                                          facilities producing
                                                                                          N2O).
Suppliers of Industrial GHGs          Total importer/exporter  No.                       .......................
 (subpart OO): Importers and           level CO2e from
 Exporters.                            subparts LL through PP.
                                      Importer/exporter level  Yes.....................  Release national
                                       GHG quantities, by                                 aggregation, by GHG
                                       gas, from subpart OO;                              and product
                                       Product-specific GHG                               aggregated, for all
                                       quantities.                                        facilities covered by
                                                                                          subpart OO (e.g.,
                                                                                          national N2O quantity
                                                                                          from all facilities
                                                                                          importing or exporting
                                                                                          N2O).
Suppliers of CO2 (subpart PP):        Annual mass or volume    No.                       .......................
 Producers.                            of CO2 by each flow
                                       meter.
                                      Total facility-level     No.                       .......................
                                       CO2e from subparts LL
                                       through PP \b\.
Suppliers of CO2 (subpart PP):        Total importer/exporter  No.                       .......................
 Importers and Exporters.              level CO2e from
                                       subparts LL through
                                       PP; Facility-level CO2
                                       from subpart PP.
Injection and Sequestration of CO2    Annual mass or volume    No.                       .......................
 (proposed subpart RR, 75 FR 18576,    of CO2 injected
 April 12, 2010).                      measured by each flow
                                       meter.
                                      Annual mass or volume    Yes.....................  Aggregated data
                                       of CO2 transferred                                 released at the
                                       onsite or produced                                 facility-level.
                                       measured by flow meter.
                                      Facility-level data on   No.                       .......................
                                       CO2 received,
                                       produced, and injected.
Importers and Exporters of            Total importer/exporter  No.                       .......................
 Fluorinated Greenhouse Gases          level CO2e from
 Contained in Pre-charged Equipment    subparts LL through PP.
 or Closed-cell Foams (proposed
 subpart QQ) (75 FR 18652, April 12,
 2010).
                                      Importer/exporter level  Yes.....................  Release national
                                       GHG quantities, by                                 aggregation, by GHG
                                       gas, from subpart QQ.                              for all facilities
                                                                                          covered by subpart QQ.
----------------------------------------------------------------------------------------------------------------
\a\ EPA could release supplier data aggregated in a number of different ways without revealing confidential data
  for individual suppliers. EPA solicits suggestions on alternative approaches to aggregating data elements in
  this category and comments on the extent to which aggregated data are useful to the public.
\b\ This data element, reported under 40 CFR part 98, subpart A, represents the aggregation of CO2e from all
  supplier source categories at the facility. For example, if a refinery supplies petrochemical products (40 CFR
  part 98, subpart MM) and is also a CO2 supplier (40 CFR part 98, subpart PP) the facility-level CO2e would
  represent the CO2e for both activities combined.
\c\ This data element, reported under 40 CFR part 98, subpart A, represents an aggregation of CO2 (by source
  category) from multiple individual products the reporter supplies.

[[Page 39120]]

 
\d\ National aggregation would be released only if there are three or more reporters.
\e\ In cases where a facility produces a single product, this data element will be held as CBI.
\f\ For 40 CFR part 98, subpart 00, national aggregation would be released only for products where there are
  three or more reporters.

    As shown in Table 4 of this preamble, EPA proposes to determine 
that the reported facility-level or importer/exporter-level 
CO2e quantities, and the facility-level or importer/
exporter-level CO2 quantity by supply category are not CBI 
because the release of these data elements is unlikely to cause 
substantial harm to suppliers reporting these data elements. These data 
elements represent the aggregated emissions from a mixture of products 
supplied to the economy by each supplier. With the exception of some 
industrial GHGs suppliers described below, fuel and industrial GHG 
suppliers produce, import, or export a number of different products for 
sale or delivery. The disclosure of these suppliers' facility-level 
CO2e and CO2 could not be used to back-calculate 
and reveal annual production rates of particular products or industrial 
gases or other sensitive information. Therefore, release of these data 
is not likely to harm the competitive positions and market strategies 
of reporting entities.
    As noted in the footnote in Table 4 of this preamble, in cases 
where suppliers of industrial GHGs produce a single product, GHG 
quantities would be considered CBI because they could be used to back-
calculate production rates of particular products or other sensitive 
information.
    For suppliers (other than importers of coal-based liquid fuels and 
petroleum products, LDCs, and suppliers of CO2), EPA 
proposes to determine as CBI reported facility and importer/exporter-
level product-specific GHG data. Facility-level GHG quantities 
associated with each individual fuel product a petroleum refiner 
supplied (e.g., each type or grade of gasoline, fuel oil, or other 
products supplied by a refinery) would be considered CBI. Similarly, we 
would consider as CBI the GHG quantities for each individual gas 
supplied by a supplier of industrial GHGs. For CO2 injection 
and sequestration facilities, facility and flow meter-specific data on 
the amount of CO2 received by or produced at a facility 
would be considered CBI. EPA finds that disclosure of these product-
specific GHG data described above could likely cause substantial harm 
to the competitive position of the suppliers required to report these 
data elements under Part 98. For example, facility GHG information at 
the product level could be used to back-calculate a facility's or 
company's production rates, which EPA has determined are entitled to 
confidential treatment. See the supplier ``Production/Throughput 
Quantity and Composition'' category discussion in Section II.D.3 of 
this preamble for the complete explanation of why production data are 
CBI and the types of harm likely to be caused by releasing data that 
reveal the amount of product a facility or company produces and 
supplies.
    For fuels (40 CFR part 98, subparts LL, MM and NN), GHG emissions 
are closely related to the carbon content of the fuel and are generally 
calculated as an emission factor times the amount of a fuel product 
produced. 40 CFR part 98, subparts MM and NN provide default emission 
factors, so if the GHG associated with a particular fuel product is 
released, competitors could calculate the amount of fuel product a 
facility supplies. For industrial GHG producers, each GHG is a product, 
so release of GHG data by product equates to direct release of the 
quantity of each product supplied.
    As mentioned earlier in this section, there are four product-
specific GHG data, disclosed at the reported level, that are not 
considered CBI. The reasons for these exceptions are as follows:

    1. EPA does not consider CO2 quantities that 
importers of petroleum products and coal-based liquids must report 
by product at the importer-level to be CBI. The EIA already releases 
the quantity of each petroleum product and coal-based liquids 
imported. Therefore, these product quantities are already in the 
public domain.
    2. EPA does not consider the CO2 quantities to be 
reported by product at the individual LDC level to be CBI. The EIA 
already releases the quantities of products distributed by LDCs. 
LDCs are defined in 40 CFR part 98, subpart NN as entities that are 
regulated as separate operating companies by State public utility 
commissions or operated as independent municipally-owned 
distribution systems. As such, LDC data related to rates and 
distribution quantities are already in the public domain.
    3. EPA does not consider facility-level CO2 quantity 
by product for suppliers of CO2 to be CBI because much of 
this data is already available in the public domain. For this 
category, the CO2 quantity reported by each supplier is 
the same as their CO2 production (or import or export). 
See the supplier ``Production/Throughput Quantities and 
Composition'' category in Section II.D.3 of this preamble for the 
explanation of why release of CO2 supplier product 
quantities is not likely to cause competitive harm and is not 
entitled to confidential treatment.
    4. EPA does not consider facility-level CO2 injection 
data by CO2 injection and geologic sequestration 
facilities to be CBI because much of this data is already available 
in the public domain. For this category, the CO2 quantity 
injected by each facility is the same as their CO2 
throughput data. See the supplier ``Production/Throughput Quantities 
and Composition'' category in Section II.D.3 of this preamble for 
the explanation of why release of CO2 injection 
quantities is not likely to cause competitive harm and is not 
entitled to confidential treatment.

    While EPA proposes to determine product-specific GHG data at the 
facility and importer/exporter level to be CBI (other than the four 
exceptions described above), EPA proposes to aggregate these GHG data, 
by gas, for each product and release the aggregated data by source 
category as shown in Table 4 of this preamble. For example, EPA would 
release the CO2 associated with the total amount of each 
grade of gasoline, fuel oil, etc. supplied by all producers of 
petroleum products combined. As another example, EPA would also release 
the total amount of each GHG supplied in the U.S. by all suppliers of 
industrial gases in cases where the gas is produced at three or more 
facilities. Release of the aggregated data, which disclose the GHG 
associated with total national supply of a product, is not likely to 
cause substantial harm to the competitive position of businesses 
because competitors could not determine the products or quantities 
produced by an individual facility or corporation from this national 
level of data.
    EPA solicits comments on the extent to which aggregated data are 
useful to the public. EPA also solicits comments on the aggregation 
approach described above or suggestions on alternative approaches to 
aggregating data for this data category.
    Summary. EPA proposes to determine that CO2e quantities 
reported by suppliers of petroleum products, coal-based liquids, 
natural gas, natural gas liquids, industrial GHGs, and CO2 
are not CBI under CAA section 114(c). EPA proposes to determine that 
the CO2 quantities reported at the facility or importer/
exporter-level are CBI, with four exceptions described above (which are 
determined to be non-CBI). EPA proposes to determine that 
CO2 quantities reported by importers of petroleum products 
and coal-based liquids, CO2 quantities reported by LDCs, and 
CO2 quantities reported by suppliers CO2 are not 
CBI. EPA solicits comments on the proposed determinations, including 
whether the data category determinations are

[[Page 39121]]

appropriate as well as whether the appropriate data elements were 
assigned to this category.
3. The Production/Throughput Quantities and Composition Category
    EPA proposes to determine to be CBI under CAA section 114(c) 
facility-level production/throughput quantity and composition data for 
most suppliers except for the following: (1) Facility-level or 
importer/exporter-level data for suppliers of CO2, (2) 
natural gas LDCs, (3) and importers of petroleum products. Some data 
elements in this category do not qualify as CBI because they are 
already publicly available. EPA proposes to determine that the data 
elements listed above are not CBI.
    Description of data elements. The GHG Reporting Rule requires 
suppliers to report production and throughput quantities and product 
compositions (including products produced, imported, or exported). 
Suppliers are required to report production/throughput data at the 
product-specific level (e.g., suppliers of petroleum products report 
the annual quantity of each petroleum product imported, exported, or 
leaving the refinery). Importers and exporters report the amount of 
each product imported and exported. Producers report the amount 
produced, sold, or delivered. Composition refers to information about 
the product make-up such as the fraction of the product that is derived 
from fossil fuels or the molecular components of a product, such as 
carbon share (the percent of total mass that carbon represents in a 
product). The data elements included in this category vary by supplier 
source category. The following list provides examples of the types of 
data included in this category.
    Under 40 CFR part 98, subpart LL, suppliers of coal-to-liquids 
(CTLs) products must report:
     Annual quantity of each product listed in Table MM-1 of 40 
CFR part 98, subpart MM that leaves the CTL facility.
     Percent of the volume of each product that is petroleum-
based.
    Under 40 CFR part 98, subpart MM, suppliers of petroleum products 
must report:
     Annual quantity of each petroleum product and natural gas 
liquid (NGL) that leaves the refinery.
     Annual quantity of each product and NGL imported or 
exported.
     Percent of the volume of each petroleum product or NGL 
that is petroleum-based (when petroleum-based products are blended with 
biomass based products).
     Carbon share and density of products produced, imported, 
or exported.
    Under 40 CFR part 98, subpart NN, suppliers of natural gas and NGLs 
(NGL fractionators and LDCs) must report:
     Annual quantity of ethane, propane, normal butane, 
isobutane, and ``pentanes plus'' products they supply.
     Annual quantity of propane that the NGL fractionator 
odorizes at the facility and delivers to others.
    Under 40 CFR part 98, subpart OO, suppliers of industrial GHGs must 
report:
     Annual quantity of nitrous oxide or each fluorinated GHG 
that was produced.
     Throughput information including the total mass of the 
reactants, by-products, and wastes permanently removed from each 
fluorinated GHG or nitrous oxide production process.
     Annual quantity of nitrous oxide or each fluorinated GHG 
that was sold or transferred for transformation and destruction.
     Annual mass of nitrous oxide or each fluorinated GHG that 
was imported or exported in bulk.
     Commodity code of the fluorinated GHGs or nitrous oxide 
shipped.
    Under proposed 40 CFR part 98, subpart QQ (75 FR 18652, April 12, 
2010), suppliers, importers and exporters of pre-charged equipment and 
closed cell-foam products must report:
     Quantity of the fluorinated GHG contained in the foam in 
each appliance imported or exported.
     Number of each type of appliance containing closed-cell 
foam imported or exported.
     Density of the fluorinated GHG contained in closed cell-
foams that are not inside of appliances.
     Quantity of foam imported or exported for each type of 
closed-cell foam.
    Under 40 CFR part 98, subpart PP, suppliers of CO2 must 
report:
     Annual mass of CO2 imported or exported.
     Aggregated annual quantity of CO2 that is 
transferred off site for various end use applications (e.g., greenhouse 
uses for plant growth, research and development).
    Under proposed 40 CFR part 98, subpart RR, facilities must report:
     Annual mass of CO2 received.
     Annual mass of CO2 produced onsite.
     Annual CO2 injected.
     Annual CO2 sequestered in subsurface geologic 
formations.
     Cumulative mass of CO2 reported as sequestered 
in the subsurface geologic formation in all years since the reporter 
began reporting.
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in the supplier production/throughput quantity 
and composition data category, with the exception of certain data 
elements that are already publicly available, are CBI under CAA section 
114(c). Table 5 of this preamble shows the levels at which supplier 
production/throughput data are reported under each subpart, which data 
would be considered CBI, and which data are already publicly available 
and therefore not considered CBI. For data that EPA proposes to 
consider CBI, the table indicates the level of aggregation at which EPA 
would release the data.

Table 5--Proposed Confidentiality Determination and Level of Release for Supplier Production and Throughput Data
----------------------------------------------------------------------------------------------------------------
                                                                                             If CBI, proposed
  Source category (part 98 subpart)        Level reported       Are these data CBI \a\     aggregated level of
                                                                        (Y/N)?                 release \b\
----------------------------------------------------------------------------------------------------------------
Suppliers of Coal-Based Liquid Fuels  Facility level, by       Yes.....................  Release national
 and Petroleum Products (Subparts LL   product.                                           aggregation, by
 and MM): Producers.                                                                      product.c d
Suppliers of Coal-Based Liquids and   Importer level, by       No.                       .......................
 Petroleum Products (Subparts LL and   product.
 MM): Importers.
Suppliers of Coal-Based Liquids and   Exporter level, by       Yes.....................  Release national
 Petroleum Products (Subparts LL and   product.                                           aggregation, by
 MM): Exporters.                                                                          product.

[[Page 39122]]

 
Suppliers of Natural Gas and NGLs     LDC level..............  No.                       .......................
 (Subpart NN): LDCs.
Suppliers of Natural Gas and NGLs     NGL Fractionator level.  Yes.....................  Release national
 (Subpart NN): Fractionators.                                                             aggregation, by
                                                                                          product.
Suppliers of Industrial GHGs          Facility level, by       Yes.....................  Release national
 (Subpart OO): Producers.              fluorinated GHG.                                   aggregation, by
                                                                                          fluorinated GHG.\e\
                                      Facility level           Yes.....................  N/A.\g\
                                       throughput \f\
                                       information, by
                                       process.
Suppliers of Industrial GHGs          Importer and Exporter    Yes.....................  Release national
 (Subpart OO): Importers and           level, by fluorinated                              aggregation, by
 Exporters.                            GHG.                                               fluorinated GHG.
Suppliers of CO2 (Subpart PP):        Facility level total     No.                       .......................
 Producers.                            CO2 production.
                                      CO2 mass or volume       No.                       .......................
                                       measured by flow meter.
                                      Facility level annually  No.                       .......................
                                       aggregated production
                                       information, by end
                                       use application.
Suppliers of CO2 (PP): Importers and  Importer and Exporter    No.                       .......................
 Exporters.                            level total CO2
                                       imported/exported.
                                      CO2 mass or volume       Yes.....................  Release Importer/
                                       measured by flow                                   exporter level
                                       meter, scales and                                  aggregation.
                                       weigh bills.
                                      Importer and Exporter    No.                       .......................
                                       level annually
                                       aggregated production
                                       information, by end
                                       use application.
Importers and Exporters of            Importer and Exporter    Yes.....................  Release national
 Fluorinated Greenhouse Gases          level production                                   aggregation, by pre-
 Contained in Pre-charged Equipment    information, by pre-                               charged equipment,
 or Closed-cell Foams (proposed        charged equipment,                                 closed-cell foam, and
 subpart QQ, 75 FR 18652, April 10,    closed-cell foam, and                              appliance containing
 2010).                                appliance containing                               closed-cell foam.
                                       closed-cell foam.
Injection and Geological              Annual mass or volume    No.                       .......................
 Sequestration of CO2 (Proposed        of CO2 injected
 Subpart RR, 75 FR 18576, April 12,    measured by each flow
 2010).                                meter.
                                      Annual mass or volume    Yes.....................  Aggregated data
                                       of CO2 transferred                                 released at the
                                       onsite and produced                                facility-level.
                                       measured by each flow
                                       meter.
                                      Facility-level data on   No.                       .......................
                                       CO2 received,
                                       produced, and injected.
----------------------------------------------------------------------------------------------------------------
\a\ Production/throughput data are reported by product.
\b\ EPA could release supplier data aggregated in a number of different ways without revealing confidential
  data. EPA solicits suggestions on alternative approaches to aggregating data for this data category and
  comments on the extent to which aggregated data are useful to the public.
\c\ Product-specific data submitted by individual reporters is entitled to confidential treatment. The data will
  be aggregated and released only at the national level, by source category and product (e.g., national
  production of No. 6 fuel oil aggregated for all facilities in 40 CFR part 98, subpart MM that supply No. 6
  fuel oil).
\d\ For 40 CFR part 98, subpart LL, national aggregation will be released only if there are three or more
  reporters.
\e\ For 40 CFR part 98, subpart OO, national aggregation would be released only for products where there are
  three or more reporters.
\f\ Throughput information includes the total mass of the reactants, by-products, and wastes permanently removed
  from each fluorinated GHG or nitrous oxide production process.
\g\ Not applicable. Given the diversity of by-products, wastes, and reactants removed from different processes
  and facilities, it is not feasible to provide a national aggregation by product.

    As shown in Table 5 of this preamble, EPA proposes to determine to 
be CBI reported facility level and importer/exporter level production 
and throughput quantity and composition data, and release it only in 
aggregated form, for the following reporters:
     Producers of CTLs and petroleum products (40 CFR part 98, 
subparts LL and MM).
     Exporters of CTLs and petroleum products (40 CFR part 98, 
subparts LL and MM).
     NGL fractionators (40 CFR part 98, subpart NN).
     Producers of industrial GHGs (40 CFR part 98, subpart OO).
     Importers and exporters of industrial GHGs (40 CFR part 
98, subpart OO).
     Importers and exporters of fluorinated greenhouse gases 
contained in pre-charged equipment or closed-cell foams (proposed 40 
CFR part 98, subpart QQ, 75 FR 18652, April 12, 2010).
    Disclosure of these data would likely cause substantial harm to the 
competitive positions of businesses reporting these data. Releasing 
these data could be detrimental to the operational and marketing 
strategies of the reporting parties. For example:

     The disclosure of annual production quantities of 
products (i.e., quantities sold and/or delivered), used in 
conjunction with other publicly available data related to capacity 
(e.g., EIA publishes facility-level capacity data for refineries), 
could provide insight to a firm's operational strengths and 
weaknesses. Competitors could determine at what percent capacity a 
firm is operating, which can reveal information on the financial and 
competitive strength of the firm. For example, it could reveal that 
a manufacturer is operating well below capacity and likely 
experiencing financial difficulties. Having such information could 
allow competitors to narrow the competition by adjusting their 
prices to the further detriment of the reporting company, or to 
formulate other competitive strategies or

[[Page 39123]]

corporate acquisition strategies to the detriment of the reporting 
company. Having information on the percent of capacity at which a 
firm is operating could also reveal whether a manufacturer has 
existing capacity available to take on new customers in a growing 
market or is already at their maximum production and would need to 
invest capital to expand capacity in order to produce more. Having 
such information could give competitors insights to make competitive 
decisions on expanding their own production rates or altering their 
pricing strategies to the detriment of the reporting company.
     The disclosure of annual production quantities and 
compositions--in particular, products sold or delivered--provides 
insight into a firm's market strength and position. Competitors 
could use production quantity data (i.e., quantities sold and/or 
delivered) to gain a competitive advantage over a firm by better 
approximating a firm's market share. For example, annual production 
data may reveal whether a firm is experiencing rapid growth or 
decline in market share. The data may also reveal the reporting 
supplier's customer base and marketing strategies. It might enable 
firms to determine which of their competitors won a contract/new 
customer for which they competed. This could substantially harm the 
firm's competitive position because the information could enable 
competitors to devise strategies to steal specific customers or even 
key employees. Changes in the mix of products produced could reveal 
marketing strategies. In many cases, an accurate estimate of the 
market position of a firm is difficult to procure, and the 
disclosure of such information through the GHG Reporting Rule could 
harm the competitive position of reporting parties.
     Disclosure of facility-level production/throughput 
quantities and product compositions could give competitors insight 
into a firm's local and regional market conditions and expansion 
plans, enabling competitors to devise strategies to prevent 
expansion and to steal market share in specific locations. In 
general, competitors do not currently have access to actual facility 
production rates or other information (i.e., financial information) 
that could allow them to assess competition and market conditions in 
regional detail, because publicly available financial and economic 
information is released at the corporate level rather than the 
facility level.
     Information about production quantities and product 
composition may allow competitors to reasonably infer the types and 
approximate amounts of feedstocks or raw materials consumed. This 
may enable competitors to devise strategies to compete for 
resources. If in addition to production quantities, raw materials 
consumption data reported under the GHG Reporting Rule were also 
released, competitors could use the combination to expose sensitive 
information such as operating efficiencies (amount of product 
produced per unit of raw material consumed) and allow competitors to 
infer production costs and pricing structures.
    As shown in Table 5 of this preamble, EPA proposes that the 
following data elements are not CBI:
     LDC-level production/throughput quantity and composition 
data reported by natural gas LDCs (40 CFR part 98, subpart NN).
     Importer-level data on quantities and compositions of 
products imported by CTL and petroleum product importers (40 CFR part 
98, subparts LL and MM).
     CO2 production/throughput data reported by 
CO2 producers and at the importer or exporter level by 
importers, and exporters of CO2 (40 CFR part 98, subpart 
PP).
     CO2 injection data reported by CO2 
injection and geologic sequestration facilities (proposed 40 CFR part 
98, subpart RR, 75 FR 18576, April 12, 2010).
    EPA is proposing that the LDC-level production/throughput data 
collected under 40 CFR part 98, subpart NN and the importer-level data 
for petroleum products collected from importers under 40 CFR part 98, 
subparts LL and MM are not CBI because many of the same data elements 
from the same LDCs and importers are already collected and released 
annually by EIA in documents and databases posted on the Internet each 
year. For example, EIA collects and publicly releases, at the LDC and 
importer level, the quantities of natural gas supplied by LDCs and the 
quantities and relative densities of each product imported by importers 
of petroleum products and CTLs. Because the public already has access 
to these data elements, they are not CBI.
    While the GHG Reporting Rule collects some production/throughput 
data elements under 40 CFR part 98, subparts LL and MM that are not 
collected (and therefore not released) by the EIA, these data elements 
could be estimated from data released by EIA or from data already 
publicly available. For example, 40 CFR part 98, subparts LL and MM 
require reporting of carbon share if the importer chooses to use a 
particular GHG calculation method (the rule provides different 
calculation options). Carbon share is a product composition data 
element that is not collected and released by EIA. However, the EIA 
releases information on the type of category of product imported (e.g., 
residual fuel oil, reformulated motor gasoline), which could be used to 
determine the range within which the carbon share would fall. In 
addition, EIA collects and releases other importer-level product 
composition data for imported petroleum products (e.g., sulfur content 
and API gravity). Carbon share data for imported products is unlikely 
to be any more sensitive than the sulfur content and API gravity data 
already released by EIA. EIA's release of sulfur content and API 
gravity data, suggests that product composition data, including carbon 
share, is not considered to be sensitive information by importers of 
petroleum products.
    40 CFR part 98, subpart MM also requires importers to report the 
percent volume of each biomass-blended product that is petroleum-based. 
Although EIA does not publish this data element at the importer-level, 
the percent volume of petroleum in some biomass-blended products is 
already publicly available. For example, the percent of ethanol, and 
subsequently petroleum, in blended fuels is disclosed because Federal 
standards allow producers to blend only a certain percentage of ethanol 
in most gasoline products. Given the amount and type of importer-level 
product quantity and composition data already available, the release of 
these data elements, which are generally less sensitive in nature, is 
unlikely to cause substantial harm to the competitive position of 
importers of CTLs and petroleum products.
    While the GHG Reporting Rule collects one production/throughput 
data element from LDCs that is not collected and released by EIA 
(reporter-specific HHV if reporters elect not to use the default factor 
provided for calculating emissions), EPA has determined that it is not 
CBI for the following reason: LDCs as defined in 40 CFR part 98, 
subpart NN are entities that are regulated as separate operating 
companies by State public utility commissions or operated as 
independent municipally-owned distribution systems. As such, LDC data 
related to rates and distribution quantities are already public 
knowledge. Moreover, LDCs are not subject to the same competitive 
marketplace experienced by other supplier categories. They generally 
serve one area and rarely overlap their distribution networks with 
those of their competitors.
    Also already publicly available are facility-level production and 
throughput data from producers of CO2 and exporter/importer 
level data from importers and exporters of CO2. Only three 
States have facilities producing CO2 from natural wells and 
all three States currently release the data. Therefore, facility and 
flow meter-specific data from these facilities is already publicly 
available from State oil and gas commissions. In addition, facility-
specific information is published in other Federal or State 
publications such as the Inventory of U.S. Greenhouse Gas Emissions and 
Sinks: 1990-2007, which is updated each year. For example, this 
inventory

[[Page 39124]]

publishes the annual amount of CO2 produced and the 
percentage of total production used for enhanced oil recovery (EOR) and 
non-EOR applications for two facilities currently producing 
CO2 from naturally-occurring CO2 reservoirs 
(Jackson Dome, Mississippi, and Bravo Dome, New Mexico). The amount of 
CO2 produced annually by the two facilities mentioned above 
is the same data, when aggregated at the facility and annual level, 
reported by suppliers of CO2 under 40 CFR part 98, subpart 
PP. Since CO2 production data aggregated at the facility-
level is already publicly available for producers of CO2, 
the flow meter-specific data reported by producers is unlikely to 
disclose additional process-specific data that is not already 
discernable from data that is publicly available.
    The GHG Reporting Rule requires suppliers of CO2 to 
report the amount of CO2 transferred to each end-use 
application. Some of this data is already publicly available. For 
example, the percentage of total CO2 production used for EOR 
and non-EOR applications is reported in the Inventory of U.S. 
Greenhouse Gas Emissions and Sinks: 1990-2007. Additionally, the 
estimated CO2 extraction (i.e., production) data from power 
and industrial facilities engaged in RD&D efforts are routinely 
published and made publicly available. The International Energy Agency 
(IEA) provides facility-specific information through its online RD&D 
projects database (see the project details for the Great Plains 
Synfuels Plant (GPSP) CO2 Capture and Compression facility). IEA 
documents include data that is the same or can be used to calculate 
data reported under the GHG Reporting Rule. For example, the daily 
amount of CO2 captured (i.e., produced) by three commercial 
U.S. facilities and the end-use application of the captured 
CO2 is included in the IEA project descriptions. The GHG 
Reporting Rule requires reporting of the annual, rather than daily, 
CO2 production and the end uses. However, the annual data 
can be inferred from the daily data that is publicly documented by IEA. 
Therefore disclosure of the annual data collected under the GHG 
Reporting Rule would not reveal additional information that is likely 
to cause harm to the competitive positions of reporters. Therefore, EPA 
proposes to determine that facility- or importer/exporter-level 
production data for CO2 suppliers reported under Part 98 are 
not CBI because much of the data are already publicly available, and 
the disclosure of end use application of the CO2 is not 
likely to cause harm to the competitive position of CO2 
suppliers since it does not reveal detailed customer information.
    For proposed 40 CFR part 98, subpart RR (75 FR 18576, April 12, 
2010), CO2 injection data is general in nature and not 
likely to be correlated with any confidential commercial operations. 
Detailed data on CO2 injection flow rates are already 
reported either to EPA or to a State agency under EPA's Underground 
Injection Control Program. Two States currently publish on their Web 
sites the data for the 48 CO2 injection facilities in their 
jurisdictions. Such publication suggests that CO2 injection 
data at the facility and flow meter-level is unlikely to be considered 
sensitive commercial information. We are also not aware of any 
competitive harm that has resulted from the disclosure of such 
information. We therefore find that the disclosure of these data 
elements is unlikely to cause substantial harm to a reporting company's 
competitive position. EPA solicits comment on whether detailed 
CO2 injection data or any other data to be reported under 
proposed 40 CFR part 98, subpart RR are held confidential by other 
regulatory programs.
    Summary. EPA proposes to determine to be CBI, under CAA section 
114(c), facility-level production/throughput data for most suppliers 
(as listed in Table 5 of this preamble) because their disclosure is 
likely to cause substantial harm to the competitive position of the 
reporting suppliers. Data determined to be CBI would be released only 
at an aggregated national level (by subpart and by product) that would 
not compromise the confidentiality of these data elements, as listed in 
Table 5 of this preamble. EPA proposes that the following three types 
of production/throughput data are not CBI because they are already 
publicly available: Facility-level and importer/exporter-level data 
reported by suppliers of CO2, LDC-level data reported by for 
natural gas LDCs, and importer-level data reported by importers of 
petroleum products. EPA solicits comments on the proposed 
determinations, including whether the data category determinations are 
appropriate as well as whether the appropriate data elements were 
assigned to this category. EPA also solicits suggestions on alternative 
approaches to aggregating data for this data category and comments on 
the extent to which aggregated data are useful to the public.
4. The Identification Information Category
    EPA proposes to determine that the supplier identification 
information is not CBI under CAA section 114(c).
    Description of the Data Elements. 40 CFR part 98, subpart A 
requires all suppliers subject to the rule to report information needed 
to identify themselves. The data elements in this category consist of 
the supplier identifying information specified in 40 CFR part 98, 
subpart A, the proposed amendments to 40 CFR part 98, subpart A (75 FR 
18455, April 12, 2010), and individual supplier subparts. These data 
elements include: The supplier name and physical street address, 
including the city, State, and zip code; the year and months covered by 
the report; the date of submittal of the annual report; importer number 
for the shipment (40 CFR part 98, subpart OO); the signed and dated 
certification statement of the accuracy and completeness of the annual 
report, provided by the designated representative of the owner or 
operator; the well identification number (proposed 40 CFR part 98, 
subpart RR, 75 FR 18576, April 12, 2010); name and address of U.S. 
parent company(s) and their percentage ownership interest in the 
supplier (proposed amendments to 40 CFR part 98, subpart A); and NAICS 
codes (proposed amendments to 40 CFR part 98, subpart A).
    This data category also includes facility and unit identification 
information submitted to EPA in BAMM extension requests. These data 
elements include: The facility or supplier name and physical address; 
unit identification numbers; number and type of units; and descriptions 
of units and monitoring equipment.
    Rationale for the Proposed Determination. EPA proposes to determine 
that the data elements in this category do not qualify as CBI under CAA 
section 114(c). This information is not currently protected by 
suppliers. Businesses that are suppliers of fossil fuels and industrial 
GHGs make their identities known to potential customers as a part of 
normal business practices and do not take steps to prevent the release 
of this information. The information does not pertain to any sensitive 
business information, such as information on specific processes used at 
the facility or production information. Therefore, its disclosure is 
not likely to cause substantial harm to the reporting suppliers' 
competitive position. Furthermore, identifying information for 
suppliers of various fossil fuels and industrial GHGs, including those 
subject to Part 98, is already collected and released to the public 
under various EPA and Department of Energy (DoE) programs. Examples 
include EPA's TRI and DoE's EIA periodic energy reporting programs. We 
are not aware of any

[[Page 39125]]

competitive harm that resulted from the disclosure of such information 
and conclude that this is the case as well for the data elements in 
this category.
    Summary. For the reasons described above, EPA proposes to determine 
that the data elements in the Supplier Identification Information 
Category are not CBI under CAA section 114(c). EPA solicits comments on 
this proposed determination, including whether the data category 
determination is appropriate as well as whether the appropriate data 
elements were assigned to this category.
5. The Unit/Process Operating Characteristics Category
    This data category includes data elements from 40 CFR part 98, 
subpart OO (Suppliers of Industrial GHGs), subpart PP (Suppliers of 
Carbon Dioxide), proposed subpart QQ (Importers and Exporters of 
Fluorinated-Greenhouse Gases in Pre-Charged Equipment or Closed-cell 
Foams) (75 FR 18652, April 12, 2010), and proposed subpart RR 
(Injection and Geological Sequestration of Carbon Dioxide) (75 FR 
18576, April 12, 2010). EPA proposes to determine that one of the data 
elements under 40 CFR part 98, subpart OO is CBI under CAA section 
114(c) and the remaining data elements under 40 CFR part 98, subparts 
OO and PP, and proposed 40 CFR part 98, subparts QQ and RR are not CBI.
    Description of Data Elements. The following data elements are 
included in this category:
     The estimated percent transformation efficiency of each 
production process for the fluorinated GHG produced (40 CFR part 98, 
subpart OO).\13\
---------------------------------------------------------------------------

    \13\ Under 40 CFR part 98, subpart OO, suppliers must submit a 
one-time report that includes each of the data elements described 
above. However, if the efficiency of the destruction device is re-
tested, the supplier must include that information in its next 
annual report.
---------------------------------------------------------------------------

     The destruction efficiency (DE) of each fluorinated GHG 
destruction unit (40 CFR part 98, subpart OO).\13\
     The chemical identity of the fluorinated GHG(s) used in 
the performance test conducted to determine DE (40 CFR part 98, subpart 
OO).\13\
     Dates on which the fluorinated GHGs or nitrous oxide were 
imported (40 CFR part 98, subpart OO and proposed subpart QQ, 75 FR 
18652, April 12, 2010).
     Port of entry through which the fluorinated GHGs or 
nitrous oxide were imported (40 CFR part 98, subpart OO and proposed 
subpart QQ, 75 FR 18652, April 12, 2010).
     Date on which the fluorinated GHGs and nitrous oxide were 
exported from the U.S. or its territories (40 CFR part 98, subpart OO 
and proposed subpart QQ, 75 FR 18652, April 12, 2010).
     Port from which the fluorinated GHGs and nitrous oxide 
were exported from the U.S. or its territories (40 CFR part 98, subpart 
OO and proposed subpart QQ, 75 FR 18652, April 12, 2010).
     Percent of a captured CO2 stream that is 
biomass-based (40 CFR part 98, subpart PP).
     Source of the CO2 received (e.g., 
CO2 production wells, electric generating unit, ethanol 
plant, pulp and paper mill, natural gas processing, other anthropogenic 
source) (proposed 40 CFR part 98, subpart RR, 75 FR 18576, April 12, 
2010).
     Underground injection control permit class (proposed 40 
CFR part 98, subpart RR, 75 FR 18576, April 12, 2010).
    Rationale for the Proposed Determination. EPA proposes to determine 
that the estimated percent transformation efficiency of each production 
process for the fluorinated GHG produced, as required under 40 CFR part 
98, subpart OO, are CBI under CAA section 114(c). Disclosing this data 
element, which pertains to a facility's operating efficiency (amount of 
product produced per unit of raw material consumed), could allow a 
facility's competitors to infer production costs and pricing 
structures, and develop more competitive pricing and marketing 
strategies. It may also reveal proprietary information about the actual 
transformation process that a facility is using. Therefore, disclosure 
of this data element is likely to cause substantial harm to the 
reporting business's competitive position.
    EPA proposes to determine that the destruction efficiency of each 
fluorinated GHG destruction unit, as well as the chemical identity of 
the fluorinated GHG(s) used in the performance test conducted to 
determine the destruction efficiency under 40 CFR part 98, subpart OO, 
are not CBI. The destruction efficiency is determined by performance 
test and is used in Equation OO-4 of 40 CFR part 98, subpart OO to 
calculate the mass of fluorinated GHGs destroyed. The fluorinated 
GHG(s) used in the performance test to determine the destruction 
efficiency are usually stable compounds that are used as surrogates for 
a broad class of other fluorinated compounds. Disclosing the chemical 
identity of the fluorinated GHGs used in the performance test and the 
destruction efficiency determined by the performance test do not reveal 
sensitive business information about the process, such as the amount of 
a specific product that is destroyed or supplied by a facility. Nor do 
they reveal the actual technology used for fluorinated GHG destruction, 
or the operating conditions for a particular technology. Therefore, 
disclosing this information would not likely cause substantial harm to 
a supplier reporter's competitive position.
    The remaining data elements in this category are the dates and 
ports of shipments of industrial GHGs (40 CFR part 98, subpart OO and 
proposed subpart QQ (75 FR 18652, April 12, 2010)), the percentage of a 
captured CO2 stream that is derived from biomass (40 CFR 
part 98, subpart PP), and the source of CO2 received by 
injection and geologic sequestration facilities (proposed 40 CFR part 
98, subpart RR, 75 FR 18576, April 12, 2010). The dates of import and 
export shipments, and the ports of entry or exit under 40 CFR part 98, 
subpart OO and proposed subpart QQ are simply the dates and ports 
through which shipments occur; they do not contain information 
regarding the contents of the shipment. The source of CO2 
received by injection and geologic sequestration facilities identifies 
the type of source (e.g., ethanol plant), but does not provide specific 
information that would identify the specific facilities or company that 
supplies the CO2 to the facility or on the amount of 
CO2 provided to an individual facility or company. Such 
information does not reveal sensitive information related to 
operational strengths or weaknesses, operational capacity, customer 
base, production amounts, or market share. Therefore, EPA proposes to 
determine that the date of the import or export, the port of entry or 
exit, and the source of CO2 received are not CBI.
    For the reporting of percent of captured CO2 that is 
biomass-based under 40 CFR part 98, subpart PP, this data element is 
already publicly available and therefore not CBI. As discussed in the 
section Production/Throughput Quantities and Composition Category (see 
Section II.D.3 of this preamble), facility specific information on 
CO2 production is already publicly available. Biomass-based 
CO2 is generally produced as a by-product of other 
production processes, such as ethanol plants, where use of biomass is 
already commonly known.
    Summary. EPA proposes to determine that the estimated percent 
transformation efficiency of each production process for the 
fluorinated GHG produced under 40 CFR part 98, subpart OO is CBI under 
CAA section

[[Page 39126]]

114(c). EPA proposes to determine that the destruction efficiency of 
each fluorinated GHG destruction unit and the chemical identity of the 
fluorinated GHG(s) used in the performance test conducted to determine 
the destruction efficiency are not CBI under CAA section 114(c). In 
addition, EPA proposes to determine that the date of import/export, 
port of entry/exit, and the percent of captured CO2 that is 
biomass-based are not CBI under CAA section 114(c). EPA solicits 
comments on these proposed determinations, including whether the data 
category determinations are appropriate as well as whether the 
appropriate data elements were assigned to this category.
6. The Calculation, Test, and Calibration Methods for Suppliers 
Category
    EPA proposes to determine that the emission calculation methodology 
and the testing and calibration methods specified in Part 98 applicable 
to the suppliers of fuels and industrial GHGs are not CBI under CAA 
section 114(c).
    Description of the Data Elements. Part 98 requires suppliers to 
calculate potential annual mass emissions (metric tons per year) of 
each GHG that would be emitted if supplied fuels were completely 
combusted or oxidized, or supplied industrial GHGs are used (i.e., 100 
percent released to the atmosphere). Specific calculation and 
measurement methods are contained in each supplier category subpart. 
Data elements included in this category are the methods provided in 
Part 98 for use by suppliers to calculate the GHG quantities to be 
reported. These methods are used to sample and analyze the raw 
materials received and products supplied. They are also used to measure 
the quantity of raw materials and products. The data collected from the 
samples and analyses (which are not part of this data category) are 
used by the reporter to calculate the GHG quantities.
    This data category also includes data elements submitted to EPA in 
BAMM extension requests. Examples of data elements in this category 
include the following:
     The methods used by the reporter to measure the quantity 
of each product or raw material used in calculating potential 
emissions.
     The methods used by the reporter to collect and analyze 
samples of raw material or product for density and carbon share.
     The methods used by the reporter to develop reporter-
specific values for HHV and GHG emission factors.
     The methods used by the reporter to determine the 
efficiency of units used for fluorinated GHG destruction.
     The methods used by the reporter to record the mass of 
fluorinated GHG destroyed.
     The methods used by the reporter to measure the mass of 
fluorinated GHGs produced or fed into a transformation process, 
including the type of instrumentation used and the precision.
     The methods used by the reporter to estimate the fraction 
of fluorinated GHGs fed into a transformation process that is actually 
transformed.
     The methods used by the reporter to estimate the mass of 
fluorinated GHGs fed into a destruction device, to estimate the 
concentration of the fluorinated GHGs in the destroyed material, and 
the precision and accuracy of the methods.
     Identification of the parameter, subpart, and rule 
citation for which a BAMM extension is requested (40 CFR part 98, 
subpart A).
    Rationale for the Proposed Determination.
    EPA proposes to determine that the data elements in this category 
are not CBI under CAA section 114(c). EPA finds that disclosure of the 
information is not likely to cause substantial harm to the competitive 
positions of suppliers reporting this information under Part 98.
    These methods, many of which are specified in Part 98, are 
standardized methods applicable to suppliers in a given source 
category. These methods do not contain facility specific or sensitive 
business information, nor does disclosing the use of these methods by a 
reporting supplier facility reveal sensitive business information 
regarding the facility. For example, disclosing the methods used to 
measure material inputs to a manufacturing process or to measure the 
efficiencies of transformation or destruction processes would not 
reveal information regarding the actual production rates or 
efficiencies of those processes of the reporting facility. Also, some 
of the methods are already public information (e.g., the methods for 
sampling and measuring carbon content of various materials are 
published by the American Society for Testing and Material (ASTM), 
International Standards Organization (ISO), and Gas Processors 
Association (GPA)).
    Summary. For the reasons stated above, EPA proposes to determine 
that the data elements in this category are not CBI under CAA section 
114(c). EPA solicits comments on this proposed determination, including 
whether the data category determination is appropriate as well as 
whether the appropriate data elements were assigned to this category.
7. The Data Elements Reported for Periods of Missing Data That Are Not 
Related to Production/Throughput or Materials Received Category
    EPA proposes to determine that the data elements in this category 
are not CBI under CAA section 114(c).
    Description of the Data Elements. The data elements in this 
category include data to be reported when there is missing data (other 
than missing production/throughput and materials received data, the 
required reporting for which is addressed in Section II.D.10 of this 
preamble). The data elements in this category are as follows:
    Under 40 CFR part 98, subpart A (general provisions), all suppliers 
must report the following:
     The data elements for which a substitute value was 
determined for missing data.
     The total number of hours in the year that a missing data 
procedure was used.
    Under 40 CFR part 98, subpart NN, suppliers of natural gas and 
natural gas liquids (NGLs) must also report the number of days in the 
reporting year for which substitute data procedures were used to 
perform each of the following:
     Measure quantity of natural gas and NGLs supplied to 
downstream facilities.
     Develop HHVs.
     Develop emission factors.
    Under 40 CFR part 98, subpart PP suppliers of carbon dioxide must 
also report the number of days in the reporting year for which 
substitute data procedures were used to perform each of the following:
     Measure the quantity of CO2.
     Measure the concentration of CO2 in a stream.
     Measure the density of a CO2 stream.
    Under proposed 40 CFR part 98, subpart RR (75 FR 18576, April 12, 
2010), facilities report the number of times missing data procedures 
were used. For 40 CFR part 98, subparts LL, MM, and OO, suppliers 
report only the data elements listed for the Missing Data Category 
under 40 CFR part 98, subpart A.
    Rationale for the Proposed Determination. These data elements 
provide information to identify those data elements for which missing 
data procedures were used and the duration of the period for which 
missing data procedures were used. They are important because from 
these reported data elements, EPA and others using the reported data 
can judge the quality of the GHG data collected and reported by a 
supplier.

[[Page 39127]]

    EPA proposes that the data elements in this category are not CBI 
because their disclosure would not likely cause substantial harm to the 
competitive positions of reporting businesses. The data elements in 
this category do not include the actual values that would be used as 
substitutes for missing data. Rather, these missing data elements 
relate only to the purpose (i.e., which data is missing) and duration 
of the use of the substitute data procedures listed in Part 98. Such 
information cannot be used to determine the amount or composition of a 
specific product being supplied or a specific material received, 
details about the specific production processes used, or any other 
information that would be considered sensitive by businesses. For 
example, the total number of hours during which substitute data was 
used instead of the measured CO2 concentration values 
required by Part 98, subpart PP, does not disclose the CO2 
concentration of stream, the flow rate, or any other data that could be 
used to reveal sensitive information about a production process.
    Summary. For the reasons stated above, EPA proposes to determine 
that the data elements in this category are not CBI under CAA section 
114(c). EPA solicits comments on this proposed determination, including 
whether the data category determination is appropriate as well as 
whether the appropriate data elements were assigned to this category.
8. The Emission Factors Category
    EPA proposes to determine that the data elements in this category 
are CBI under CAA section 114(c) because their release is likely to 
cause substantial harm to the competitive positions of the suppliers 
reporting these data.
    Description of Data Elements. Part 98 requires suppliers subject to 
40 CFR part 98, subparts LL, MM, and NN to use emission factors to 
calculate the CO2e emissions that would result from the 
complete combustion or oxidation of the products they supply. These 
suppliers have the option to develop product- or feedstock-specific 
emission factors. This category contains the calculated emissions 
factors that suppliers choose to develop. The data elements in this 
category are the following:
     Calculated CO2 emission factors for each 
feedstock received and product produced, imported, or exported (40 CFR 
part 98, subparts LL and MM).
     Calculated CO2 emission factors for natural gas 
and each NGL product (40 CFR part 98, subpart NN).
    These emission factor data are used to calculate the GHG quantities 
that are reported by suppliers under 40 CFR part 98, subparts LL, MM, 
and NN. Suppliers report the GHG quantities (in CO2) that 
would ultimately be emitted (throughout the economy) from complete 
combustion or oxidation of each fuel product supplied. Therefore, these 
emission factors are critical for calculating the CO2 and 
CO2e quantities reported by suppliers.
    Rationale for the Proposed Determination. EPA proposes to determine 
that the data elements in this category are CBI because their release 
is likely to cause substantial harm to the competitive positions of 
supplier businesses reporting under Part 98. Disclosing emission 
factors could harm the competitive advantage of firms because the 
emission factors can be used to back-calculate the carbon share of the 
supplier's products and raw materials. Revealing carbon share 
information on products or raw materials could give competitors 
insights concerning product make-up, production processes used, the 
markets and types of customers a facility supplies, who they obtain raw 
materials from, and other process-specific information. Such 
information could allow a competitor to devise strategies to capture 
market share from specific firms, compete for raw material resources, 
and otherwise put the reporting suppliers at a disadvantage. See the 
``Production/Throughput Quantities and Composition'' and the ``Amount 
and Composition of Materials Received'' categories for suppliers in 
Sections II.D.3 and II.D.9 of this preamble for further rationale as to 
why EPA has concluded that information that could reveal production and 
raw materials information is entitled to confidential treatment.
    The following is an example of how release of emission factors 
could allow calculation of carbon share for suppliers subject to 40 CFR 
part 98, subparts LL, MM, and NN. The 40 CFR part 98, subpart MM site-
specific emission factors are calculated as the carbon share of the 
product (percent carbon in the material) multiplied by the density. The 
density of many products is known (particularly for solid products, 
which are given a default value of ``1'') or can be inferred given that 
many products have densities that fall within a limited range. 
Therefore, if site-specific emission factors were released, and density 
is known or can be inferred, competitors could closely estimate the 
carbon share of a product or feedstock. Public disclosure of emission 
factors could therefore enable competitors to back-calculate carbon 
share and gain insight into the composition of products and feedstocks.
    Summary. For the reasons stated above, EPA is proposing to 
determine that the data elements in this category are CBI under CAA 
section 114(c). EPA solicits comments on this proposed determination, 
including whether the data category determination is appropriate as 
well as whether the appropriate data elements were assigned to this 
category.
9. The Amount and Composition of Materials Received Category
    EPA proposes to determine that the data elements in this category 
are CBI under CAA section 114(c) because release of such data is likely 
to cause substantial harm to the competitive position of suppliers 
reporting these data under Part 98.
    Description of Data Elements. Data elements included in this 
category are the quantities and compositions of raw materials and other 
materials received by suppliers who are subject to reporting under 40 
CFR part 98, subparts LL, MM, NN, and OO. Some of the materials 
received are raw materials that the reporter uses to produce the fuel 
products or industrial gases they supply into the economy (e.g., sell 
or distribute). Others are materials that are received and not used as 
raw materials but are instead distributed by the reporting supplier to 
other facilities that either use them as raw materials or fuels (e.g., 
a LDC receives natural gas and NGLs and blends and distributes them to 
customers rather than using them as a raw material to produce other 
products). This category also includes 40 CFR part 98, subpart OO data 
elements for quantities of materials that are produced on site in one 
production process, and then consumed on site by another production 
process.
    The data elements in this data category vary by supplier source 
category. The following list provides examples of the types of data 
included in this category:
     Annual quantity of each product in Table MM-1 of 40 CFR 
part 98, subpart MM entering the coal-to-liquid facility for further 
processing or other uses onsite (40 CFR part 98, subpart LL).
     Annual quantity of each type of biomass that is to be co-
processed with fossil fuel-based feedstock (40 CFR part 98, subpart 
LL).
     Carbon share and density of feedstocks consumed (40 CFR 
part 98, subpart LL).
     Annual quantity of petroleum products or natural gas 
liquids (NGL) entering the refinery for further refining or for other 
uses onsite (40 CFR part 98, subpart MM).

[[Page 39128]]

     Annual quantity of each type of biomass that is to be co-
processed with petroleum feedstocks to produce a petroleum product (40 
CFR part 98, subpart MM).
     Quantity of bulk NGLs received for processing during the 
reporting year (40 CFR part 98, subpart MM).
     Carbon share and density of feedstocks consumed (40 CFR 
part 98, subpart MM).
     Annual quantities of ethane, propane, normal butane, 
isobutane, and ``pentanes plus'' products received from other NGL 
fractionators (40 CFR part 98, subpart NN).
     Annual volume of natural gas received by the LDC at its 
city gate stations for redelivery on the LDC's distribution system, 
including for use by the LDC (40 CFR part 98, subpart NN).
     Total mass of each reactant fed into the fluorinated GHG 
or nitrous oxide production process, by process (Reactants include raw 
materials received) (40 CFR part 98, subpart OO).
     Mass of N2O and each fluorinated GHG fed into a 
transformation process transformed at the facility, by process. This 
includes quantities of N2O and fluorinated GHGs that were 
produced at the facility and then consumed by a separate transformation 
process (i.e., a separate process that uses and entirely consumes these 
gases to manufacture other chemicals for commercial purposes) (40 CFR 
part 98, subpart OO).
    Rationale for the Proposed Determination. EPA proposes to determine 
that the data elements in this data category are CBI because their 
disclosure is likely to cause substantial harm to the reporting 
suppliers' competitive positions. Disclosing information about a 
facility's annual amount and composition of materials received could 
harm the competitive advantage of firms in the following ways:

     The disclosure of the amount and composition of 
materials received and fed into production processes at a facility 
could provide insight into sensitive details like the compositional 
characteristics of a product. Competitors could use this information 
to determine the chemical ratios and the material quantities 
incorporated in a product. Public disclosure may also reveal when a 
reporting supplier switches to a different material resource, 
potentially indicating to competitors that the reporting supplier 
has discovered a way to produce the same product at a lower cost. 
Competitors could harm the competitive position of the reporting 
party by applying the same strategy and/or attempt to drive up the 
costs of the material resource.
     Information about the quantities and composition of 
materials received could expose a firm's competitive and growth 
strategies. For example, a record showing a significant increase in 
consumption of a particular material resource may indicate to 
competitors that a firm is seeking entry into a new market.
     Information about raw material quantities and 
composition could reveal information related to a firm's suppliers. 
For example, Firm A depends heavily on one supplier for a particular 
resource. A competing firm, Firm B, could deduce this relationship 
knowing that no other major suppliers can provide that particular 
resource at the quantity demanded by Firm A. Firm B could use this 
information to create new strategies to compete for that resource. 
If Firm B is also more efficient and able to absorb higher costs 
than Firm A, Firm B could intentionally drive up resource costs and 
push Firm A out of business.
     Disclosure of facility-level data on the quantity and 
composition of raw materials received could give competitors insight 
into a business's local and regional market conditions and expansion 
plans, enabling competitors to devise strategies to prevent 
expansion and to steel market share in specific locations. In 
general, competitors do not currently have access to actual 
facility-level data on the quantity and composition of raw materials 
or other day (e.g., financial statements) that could allow them to 
assess competitive market conditions in regional detail, because 
publicly available financial and economic information is released at 
the corporate level, rather than the facility-level.
     Information about the quantities and composition of 
materials received for processing may enable competitors to 
determine the type of manufacturing processes used since processes 
vary by the quantity and composition of materials used. This 
information may also allow competitors to reasonably infer 
production quantities of each product and the product mix of a 
facility. If in addition to raw materials received, production 
quantities data reported under Part 98 are also released, 
competitors could use the combination of production and feedstock 
consumption data to expose sensitive information such as operating 
efficiencies (amount of product produced per unit of raw material 
consumed) and allow competitors to infer production costs and 
pricing structures.

    Summary. For the reasons stated above, EPA proposes to determine 
that the data elements in this category are CBI under CAA section 
114(c). EPA solicits comments on this proposed determination, including 
whether the data category determination is appropriate as well as 
whether the appropriate data elements were assigned to this category.
10. The Data Elements Reported for Periods of Missing Data That Are 
Related to Production/Throughput or Materials Received Category
    40 CFR part 98, subpart OO requires suppliers of industrial GHGs 
(N2O and fluorinated GHGs) who are subject to 40 CFR part 
98, subpart OO to report numerical substitute values for production/
throughput and materials received quantities and composition during 
missing data periods as well as other background information related to 
missing data. EPA is proposing to determine that the substitute values 
used to estimate such information during missing data periods and the 
related background information are CBI under CAA section 114(c).
    Description of Data Elements. Data elements in this category, which 
are required only in 40 CFR part 98, subpart OO, include the substitute 
values (i.e., the actual numerical values used in the calculation), the 
methods used to generate the substitute values, and other related 
information, for estimating production/throughput and materials 
received quantities and compositions. A complete list of the data 
elements in this category is as follows:
     Reason the data were missing.
     Length of time the data were missing.
     Method used to estimate the missing data.
     Estimates of the missing production/throughput or 
materials received data (i.e., the mass of each fluorinated GHG that is 
produced at the facility by process, fed into the production process, 
fed into the transformation process, fed into destruction devices, and 
sent to another facility for transformation or destruction).
    Rationale for the Proposed Determination. EPA proposes to determine 
that the data elements in this category are CBI under CAA section 
114(c) because their disclosure is likely to cause substantial harm to 
suppliers reporting these data under Part 98. The data elements in this 
category are data needed to generate substitute values for missing 
production/throughput data (e.g., the amount of a fluorinated gas 
produced at a facility during a specified missing data time period) or 
raw materials consumed data (e.g., the amount of a gas fed into the 
production process during a specified missing data time period). 
Accordingly, these data elements are themselves production data and 
materials received data for the missing data period and their 
disclosure could divulge sensitive details about operational 
capabilities, marketing strategies, market share, and product 
chemistries. For a detailed explanation, see the ``Production/
Throughput Quantities and Composition'' and the ``Amount and 
Composition of Materials Received'' categories for suppliers in 
Sections II.D.3 and II.D.9 of this preamble.

[[Page 39129]]

    Summary. For the reasons stated above, EPA proposes to determine 
that the data elements in this category are CBI under CAA section 
114(c). EPA solicits comments on this proposed determination, including 
whether the data category determination is appropriate as well as 
whether the appropriate data elements were assigned to this category.
11. The Supplier Customer and Vendor Information Category
    EPA proposes to determine that information on customers and vendors 
associated with fuel and industrial GHG suppliers are CBI under CAA 
section 114(c).
    Description of the Data Elements. Data elements included in this 
category are information on individual customers that receive fossil 
fuels or industrial GHGs from the reporting suppliers, and the 
facilities to which industrial GHGs are sold or transferred for 
transformation or destruction. Examples of data elements in this 
category include the following:

     40 CFR part 98, subpart NN (Suppliers of Natural Gas 
and Natural Gas Liquids) requires LDCs to report the annual volume 
of natural gas supplied to each meter registering an annual supply 
equal to or greater than 460,000 Mscf per calendar year. 40 CFR part 
98, Subpart NN also requires reporting the customer name, address, 
and meter number of each meter registering an annual supply equal to 
or greater than 460,000 Mscf.
     40 CFR part 98, subpart NN also requires reporting (if 
known) the EIA identification number of each LDC customer.
     40 CFR part 98, subpart OO (Suppliers of Industrial 
Greenhouse Gases) requires production facilities and bulk importers 
to report the names and addresses of facilities to which any 
N2O or fluorinated GHGs were sent for transformation or 
destruction.
     40 CFR part 98, subpart OO and proposed subpart QQ (75 
FR 18652, April 12, 2010) require importers to report the country 
from which products are imported and exporters to report the country 
to which products were exported.

    Rationale for the Proposed Determination. For the following 
reasons, EPA proposes to determine that information on the identities 
of the customers and vendors associated with fuel and industrial GHG 
suppliers is CBI under CAA section 114(c).
    Suppliers of fuels and industrial GHGs do not release the identity 
of their customers to protect information on their customer base, 
market share, and similar data that could be utilized to deduce 
competitive strategies. The information is not reasonably available 
without the businesses consent, and businesses take steps to protect 
this information.
    In addition, release of this information is likely to cause 
substantial harm to the competitive position of the supplier reporters. 
For example, if all suppliers of fuels and industrial GHGs under a 
particular subpart were required to report their associated customers 
and vendors, and the information were widely available, then 
competitors could use that information to determine the approximate 
market share of each reporter, based on the number and estimated size 
of customers. This information could be used to develop strategies to 
take customers from a competitor.
    Likewise, if all suppliers of industrial GHGs under a particular 
subpart were required to report to whom they were sending GHGs for 
destruction, competitors could possibly determine information about the 
manufacturing process of the suppliers of industrial GHGs based on the 
nature of the services provided by the facility performing the 
destruction.
    In addition, requiring suppliers of industrial GHGs to identify 
facilities that destroy GHGs could reveal proprietary information about 
the destruction facilities' customer base and market share, which could 
be used by competitors to harm the GHG destruction facilities 
competitive position.
    Summary. For the reasons stated above, EPA proposes to determine 
that information on the identities of the customers and vendors 
associated with fuel and industrial GHG suppliers are CBI under CAA 
section 114(c). EPA solicits comments on this proposed determination, 
including whether the data category determination is appropriate as 
well as whether the appropriate data elements were assigned to this 
category.
12. The Process-Specific and Vendor Data Submitted in the BAMM 
Extension Request Category
    EPA proposes to determine that the data elements in this category 
are CBI under CAA section 114(c) because the release of process-
specific and vendor data submitted with the BAMM extension request is 
likely to cause substantial harm to competitive position of suppliers 
reporting these data under Part 98.
    Description of data elements. The data elements in this category 
include certain information submitted by reporters in petitions to 
extend the use of BAMM. These data elements are submitted once, as part 
of the petition, and are not submitted on a recurring basis in the 
annual GHG reports. The October 2009 final rule allowed use of BAMM for 
the first three months of 2010. A petition process is established in 40 
CFR 98.3(d)(2) allowing facilities to submit, for EPA approval, 
requests to extend the use of BAMM beyond March 31, 2010. Similar 
allowances to submit BAMM requests are included in proposed rule 
amendments (see 75 FR 18652, April 12, 2010 and 75 FR 18576, April 12, 
2010). Much of the information required for BAMM requests, such as 
location information and planned dates by which full monitoring 
equipment will be installed are classified in other data categories. 
However, some of the petitions received contain detailed process design 
information, vendor and cost information that are not technically 
similar to other data collected through Part 98. Provided below are 
some examples of the data elements in this Category:
     Location where each monitor will be installed. Process 
diagrams may be included to show specific locations.
     Information on alternative monitoring equipment suppliers 
and delivery dates investigated.
     Supporting documentation demonstrating that it is not 
possible to isolate the equipment and install monitoring instruments 
without a process unit shutdown.
     Information on process unit shutdowns including frequency 
and dates of previous and planned shutdowns.
    Rationale for Proposed Determination. EPA proposes to determine 
that the data elements in this data category are CBI under CAA section 
114(c). We find that disclosure of these process-specific and vendor 
data submitted with BAMM extension requests is likely to cause 
substantial harm to the competitive position of businesses submitting 
these requests under Part 98. Disclosure could allow competitors to 
gain insight into the specific processes used by the facility that they 
could use to gain a competitive advantage. For example:

     The disclosure of process design diagrams submitted to 
show monitor location or to show that it is not possible to install 
monitoring equipment without a process unit shutdown could allow 
competitors to determine the type of process, specific equipment, 
and sequence of process steps used in the reporter's manufacturing 
process. Such information is often proprietary, and public 
disclosure could reveal trade secret or sensitive information and 
substantially harm a firm's competitive position. The process 
configuration diagrams could also be used by a competitor to gain 
insight into whether the facility has multiple or interconnected 
lines to produce products, likely bottlenecks, potential spare 
capacity, and flexibility to

[[Page 39130]]

produce alternative products. This could provide competitors with 
insight into a petitioner's operational strengths and weaknesses. 
Such process-specific information could be used to infer information 
on production costs, pricing structures, and the ability of a firm 
to respond to changing market conditions. Having such information 
could give competitors insights to make competitive decisions on 
expanding their own production rates or altering their pricing 
strategies to the detriment of the reporting company.
     Information provided in the petition about their 
communications with alternative suppliers, delivery dates, and 
backorder notices could reveal a variety of information that the 
facility submitting the BAMM requests and their suppliers consider 
sensitive. For example, documentation could include information on 
the exact equipment being ordered and/or price quotes. This 
information could be used by competitors of the reporter submitting 
the petition to infer the costs the reporter is paying to comply 
with mandatory reporting rule, which is sensitive information. It 
could also be used by competitors of the firms supplying monitoring 
equipment quotes to undercut prices or offer better delivery 
schedules and gain a competitive advantage. Documentation pertaining 
to the investigation and ordering of monitoring equipment could also 
include specific information about the process stream 
characteristics in the process lines being monitored. Such 
information might be provided to a supplier to be sure the 
monitoring equipment could withstand the process conditions (e.g., 
corrosive chemicals, temperatures) that the monitoring equipment 
will encounter. This information could allow competitors to gain 
insight into the production processes used by a facility and assist 
them in formulating competitive strategies as described in the 
preceding paragraph.
     Information and frequency and schedule for process unit 
shutdowns could give competitors an understanding of the amount of 
process downtime and insight into process efficiency. It could also 
be used to infer if process modifications are being made (e.g., if 
there is a long shutdown). Knowledge about periods when a process 
unit will be shutdown and potentially have trouble supplying demand 
for a product could allow competitors to develop strategies to steal 
customers during such periods.

    Summary. For the reasons stated above, EPA proposes to determine 
that data elements in this category are CBI under CAA section 114. EPA 
solicits comments on this proposed determination, including whether the 
data category determination is appropriate as well as whether the 
appropriate data elements were assigned to this category.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
the proposed amendments to 40 CFR part 2 are a ``significant regulatory 
action'' because they raise novel legal or policy issues. Accordingly, 
EPA submitted this action to the Office of Management and Budget (OMB) 
for review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    The proposed amendments to 40 CFR part 2 do not impose any new 
information collection burden. The amendments are administrative and do 
not increase the recordkeeping and reporting burden associated with 
Part 98. However, the Office of Management and Budget (OMB) has 
previously approved the information collection requirements contained 
in the existing Part 98 regulations under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2060-0629. The OMB control numbers for EPA's regulations 
in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of the proposed amendments on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. This definition of small entity is 
consistent with the definition of small entity used for Part 98.
    After considering the economic impacts of today's proposed 
amendments on small entities, I certify that this action will not have 
a significant economic impact on a substantial number of small 
entities. The small entities directly regulated by Part 98 and affected 
by the proposed amendments to 40 CFR part 2 include small businesses 
across all sectors of the economy encompassed by Part 98, small 
governmental jurisdictions, and small non-profits. An analysis of 
impacts on small entities was conducted at promulgation of Part 98 and 
the results are presented in the Section VIII.C of the preamble to the 
final rule (74 FR 56369, October 30, 2009). That analysis found that 
there was not a significant impact on a substantial number of small 
entities. The proposed amendments to 40 CFR part 2 are administrative 
in nature and do not increase the costs for small entities to comply 
with Part 98. Therefore, the proposed amendments do not have an impact 
on small entities. For discussion of EPA's outreach/consultation 
efforts with small entities on Part 98, see Section VIII of the 
preamble to the final rule (74 FR 56369).
    EPA continues to be interested in the potential impacts of the 
proposed rule amendments on small entities and welcomes comments on 
issues related to such impacts.

D. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and Tribal governments and the private sector. Federal 
agencies must also develop a plan to provide notice to small 
governments that might be significantly or uniquely affected by any 
regulatory requirements. The plan must enable officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates and must inform, educate, and advise small 
governments on compliance with the regulatory requirements.
    The proposed amendments to 40 CFR part 2 do not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. The proposed amendments are administrative in 
nature and do not increase the costs for facilities to comply with Part 
98. Thus, the proposed amendments are not subject to the requirements 
of sections 202 or 205 of UMRA.

[[Page 39131]]

    In developing Part 98, EPA consulted with small governments 
pursuant to a plan established under section 203 of UMRA to address 
impacts of regulatory requirements in the rule that might significantly 
or uniquely affect small governments. For a summary of EPA's 
consultations with State and/or local officials or other 
representatives of State and/or local governments in developing Part 
98, see Section VIII of the preamble to the final rule (74 FR 56370).

E. Executive Order 13132: Federalism

    The proposed amendments to 40 CFR part 2 do not have federalism 
implications. They 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 EO 13132. However, for a 
more detailed discussion about how Part 98 relates to existing State 
programs, please see Section II of the preamble to the final rule (74 
FR 56266).
    The proposed amendments to 40 CFR part 2 are administrative in 
nature and apply to data reported under Part 98. The entities affected 
by Part 98 are facilities that supply fuel or chemicals that when used 
emit GHGs or facilities that directly emit greenhouses gases. Part 98 
does not apply to governmental entities unless the government entity 
owns a facility that directly emits GHGs above threshold levels such as 
a landfill or large stationary combustion source, so relatively few 
government facilities would be affected. The proposed amendments to 40 
CFR part 2 also do not limit the power of States or localities to 
collect GHG data and/or regulate GHG emissions. Thus, EO 13132 does not 
apply to this rule.
    In the spirit of EO 13132, and consistent with EPA policy to 
promote communications between EPA and State and local governments, EPA 
specifically solicits comments on proposed amendments from State and 
local officials. For a summary of EPA's consultations with State and 
local organizations and representatives in developing Part 98, see 
Section VIII of the preamble to the final rule (74 FR 56370).

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

    The proposed amendments to 40 CFR part 2 are not expected to have 
Tribal implications, as specified in EO 13175 (65 FR 67249, November 9, 
2000), because they are administrative in nature. Thus, EO 13175 does 
not apply to the proposed amendments. For a summary of EPA's 
consultations with Tribal governments and representatives in developing 
Part 98, see Section VIII.F of the preamble to the final rule (74 FR 
56371).

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

    EPA interprets EO 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 EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

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

    This action is not a ``significant energy action'' as defined in EO 
13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. The proposed amendments to 40 CFR part 2 are administrative in 
nature and therefore do not affect energy supply, distribution, or use.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) 
directs 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 proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EO 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 
U.S.
    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. The proposed amendments to 40 CFR part 2 are 
administrative in nature and therefore do not affect the level of 
protection provided to human health or the environment.

IV. Next Steps

    EPA will summarize and respond to public comments on this action. 
EPA will issue a final action that will outline which categories of 
data submitted under Part 98 are considered to be emission data and 
must be available to the public pursuant to CAA section 114(c). In 
addition, for categories of data that are not determined to be 
``emission data,'' the final action will outline which data categories 
will be released to the public because they do not meet the criteria 
for confidential treatment and which data categories will be treated as 
confidential.

List of Subjects in 40 CFR Part 2

    Environmental protection, Administrative practice and procedure, 
Reporting and recordkeeping requirements.

    Dated: June 28, 2010.
Lisa P. Jackson,
Administrator.
    For the reasons stated in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 2--[AMENDED]

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

    Authority: 5 U.S.C. 301, 552 (as amended), 553; secs. 114, 301 
and 307, Clean Air Act (as amended) (42 U.S.C. 7414, 7601, 7607).

Subpart B--[Amended]

    2. Section 2.301 is amended by revising paragraph (c) and adding 
paragraph (d) to read as follows:

[[Page 39132]]

Sec.  2.301  Special rules governing certain information obtained under 
the Clean Air Act.

* * * * *
    (c) Basic rules that apply without change. Except as otherwise 
provided in paragraph (d) of this section, Sec. Sec.  2.201 through 
2.207, Sec.  2.209, and Sec. Sec.  2.211 through 2.215 apply without 
change to information to which this section applies.
    (d) Data submitted under 40 CFR part 98. (1) Sections 2.201 through 
2.215 do not apply to data submitted under 40 CFR part 98 that EPA has 
determined, pursuant to section 114(c) of the Clean Air Act and 5 
U.S.C. 553(c), to be either of the following:
    (i) Emission data.
    (ii) Data not otherwise entitled to confidential treatment pursuant 
to section 114(c) of the Clean Air Act.
    (2) Except as otherwise provided in paragraphs (d)(2) and (d)(4) of 
this section, Sec. Sec.  2.201 through 2.215 do not apply to data 
submitted under 40 CFR part 98 data that EPA has determined, pursuant 
to section 114(c) of the Clean Air Act and 5 U.S.C. 553(c), to be 
entitled to confidential treatment. EPA shall treat that information as 
confidential in accordance with the provisions of Sec.  2.211, subject 
to paragraph (d)(4) of this section and Sec.  2.209.
    (3) Upon receiving a request under 5 U.S.C. 552 for data submitted 
under 40 CFR part 98 that EPA has determined, pursuant to section 
114(c) of the Clean Air Act and 5 U.S.C. 553(c), to be entitled to 
confidential treatment, the EPA office 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.
    (4) Modification of prior confidentiality determination. A 
determination made pursuant to section 114(c) of the Clean Air Act and 
5 U.S.C. 553(c) that information submitted under 40 CFR part 98 is 
entitled to confidential treatment shall continue in effect unless, 
subsequent to the confidentiality determination, EPA takes one of the 
following actions:
    (i) EPA determines, pursuant to section 114(c) of the Clean Air Act 
and 5 U.S.C. 553(c), that the information is emission data or data not 
otherwise entitled to confidential treatment under section 114(c) of 
the Clean Air Act.
    (ii) The Office of General Counsel issues a final determination, 
based on the criteria in Sec.  2.208, 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). 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 under section 114(c) of the Clean Air Act, EPA 
will notify the business in accordance with the procedures described in 
Sec.  2.205(f)(2).
* * * * *
[FR Doc. 2010-16317 Filed 7-6-10; 8:45 am]
BILLING CODE 6560-50-P


