





 Summary of Public Comments and Responses for the Greenhouse Gas Reporting Rule: 

Final Confidentiality Determinations for Nine Subparts and Amendments to Subpart A and I under the Mandatory Reporting of Greenhouse Gases Rule



                                                                   August 2012 

                                       
                                       
                                       
Final Confidentiality Determinations for Nine Subparts and Amendments to Subpart A and I under the Mandatory Reporting of Greenhouse Gases Rule: Responses to Public Comments
                                       
                                       
                                       
                                       
                                       
                     U. S. Environmental Protection Agency
                                       
                         Office of Atmosphere Programs
                                       
                            Climate Change Division
                                       
                               Washington, D.C.
FOREWORD 

On May 26, 2011, the EPA finalized confidentiality determinations for the data elements in 34 subparts in 40 CFR part 98 (excluding data elements used as inputs to emission equations) (see 76 FR 30782; hereafter, referred to as the "2011 Final CBI Rule"). This rulemaking included confidentiality determinations for subparts II and TT but excluded confidentiality determinations for subparts I, L, W, DD, QQ, RR, SS, and UU because these subparts had been amended between proposal and promulgation of the 2011 Final CBI Rule.
The EPA re-proposed confidentiality determinations for all data elements that are not used as inputs to emission equations in subparts L, DD, QQ, RR, SS, UU on January 10, 2012 (77 FR 1434; hereafter referred to as "2012 CBI re-proposal"). The 2012 CBI-re-proposal also included for the first time proposed confidentiality determinations for some new data elements that were added to subparts II and TT subsequent to EPA's issuance of the 2011 Final CBI Rule that established confidentiality determinations for data elements in subparts II and TT at that time. In two other separate notices, EPA re-proposed confidentiality determinations for all data elements that are not inputs to emission equations in subpart I on January 22, 2012 (77 FR 10434; hereafter referred to as "Subpart I CBI re-proposal"); and for all data elements that are not inputs to emission equations in subpart W on January 24, 2012 (77 FR 11039; hereafter referred to as "Subpart W CBI re-proposal"). During the comment periods for these three CBI proposals, the EPA received 12 comment letters in response to the 2012 CBI re-proposal, Subpart I re-proposal, and Subpart W re-proposal. For information on the history of confidentiality determinations for part 98 data, see the website http://www.epa.gov/climatechange/emissions/CBI.html.
This document provides the EPA's responses to public comments regarding these three proposals. The verbatim text of each comment extracted from the original comment letters is included in this document, arranged by subpart then subject. For each comment, the name and affiliation of the commenter, the document control number (DCN) assigned to the comment letter, and the number of the comment excerpt are provided. 
The EPA's responses to comments are generally provided immediately following each comment excerpt. In some cases, the EPA provided responses to specific comments or groups of similar comments in the preamble to the Final Confidentiality Determinations for Nine Subparts and Amendments to Subpart A and I under the Mandatory Reporting of Greenhouse Gases Rule (hereafter referred to as the "2012 Final CBI Rule"). Rather than repeating those responses in this document, the EPA has referenced the preamble to the final rule. Copies of all comment letters submitted are available at the EPA Docket Center Public Reading Room or electronically through http://www.regulations.gov by searching Docket ID EPA-HQ-OAR-2011-0028. 
The primary contact regarding questions or comments on this document is: 
      
      Carole Cook (202) 343-9263 
      U.S. Environmental Protection Agency 
      Office of Atmospheric Programs 
      Climate Change Division 
      Mail Code 6207-J 
      1200 Pennsylvania Avenue, NW 
      Washington, D.C. 20460 
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For technical information, contact the Greenhouse Gas Reporting Rule Hotline at: http://epa.gov/climatechange/emissions/ghgrule_contactus.htm 
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TABLE OF CONTENTS
Section											Page

DIRECT EMITTER SUBPARTS	6
Subpart I Comments and Responses	6
General Confidentiality Claims  -  Subpart I	6
Categorical Confidentiality Determinations  -  Subpart I	8
Support Removal of BAMM Recalculation Requirements  -  Subpart I	12
Opposition to New BAMM Recalculation Requirement  -  Subpart I	12
Subpart W Comments and Responses	13
Comments on Inconsistencies on CBI Determinations  -  Subpart W	13
CBI Determination for Unit/Process Static and Operating Data Elements  -  Subpart W	17
CBI Determination for Inputs  -  Subpart W	19
General Confidentiality Claims  -  Subpart W	22
SUPPLIER SUBPARTS	26
Subpart QQ Comments and Responses	26
CBI Determination for Unit/Process Operating Data Elements  -  Subpart QQ	26
General Confidentiality Claims  -  Subpart QQ	29
Subpart RR Comments and Responses	31
CBI Determination for GHGs Reported and Production/Throughput Data Elements  -  Subpart RR	31
Subparts UU Comments and Responses	36
CBI Determination for GHGs Reported and Production/Throughput Data Elements  -  Subpart RR and UU	36
APPENDIX A: LIST OF COMMENTS ON RECIPE-SPECIFIC DATA ELEMENTS REPORTED PURSUANT TO 40 CFR PART 98, SUBPART I	40
APPENDIX B: LIST OF COMMENTS FOR 40 CFR PART 98, SUBPART L	44
CBI Determination for Unit/Process Static Data Elements  -  Subpart L	44
General Confidentiality Claims  -  Subpart L	45
Data Elements in Categories with Categorical CBI Determinations  -  Subpart L	52
Comments on the Inputs to Emission Equations Data Category and the Definition of Emissions Data  -  Subpart L	64
Comments on the Notice Development Process  -  Subpart L	68
Unit-Level Data should be Confidential  -  Subpart L	69

DIRECT EMITTER SUBPARTS
Subpart I Comments and Responses
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General Confidentiality Claims  -  Subpart I
Commenter Name:  Julia A. Hatcher, Latham & Watkins LLP
Commenter Affiliation:  Semiconductor Industry Associations (SIA) 
Document Control Number:  EPA-HQ-OAR-2011-0028-0023
Comment Excerpt Number:  1
Comment: The Proposed Rule contains CBI eligibility determinations for the various current Subpart I data elements. SIA is puzzled why EPA has initiated a rulemaking to promulgate CBI determinations for the current Subpart I when, at the same time, proceedings already are underway pursuant to SIA's petitions for review and for reconsideration of both Subpart I and the Final CBI Rule that will likely lead to rulemaking that substantially amends Subpart I and addresses CBI concerns.
Indeed, pursuant to these proceedings, EPA has been engaged with SIA in active settlement discussions to resolve these petitions and has agreed that D.C. Circuit proceedings should be deferred in light of these discussions. EPA's initiation of a separate process with the Proposed Rule to address CBI that is disconnected from these proceedings (and the current settlement discussion effort there under to develop Subpart I alternatives) is inappropriate from an administrative procedure standpoint, given that it threatens to undermine the proceedings by exacerbating, instead of resolving, SIA's objections; this situation also raises a host of other legal and policy issues and calls into question whether the current settlement discussions can resolve these proceedings, as has been represented to the D.C. Circuit by EPA and SIA in deferring merits briefing on the petitions for review.
The viability of any alternative to the current Subpart I now being discussed with EPA depends upon ensuring adequate resolution of SIA's objections to the EPA's "emissions data" position and the serious exposure of intellectual property and trade secrets that can result from application of that position to Subpart I. The notion that the alternatives to the current Subpart I would be adopted, and only then evaluated separately for CBI protection, with the possibility that EPA would conclude, based on its "emissions data" position, that intellectual property underlying an alternative are not eligible for CBI protections and must be made public, would not resolve -- but instead would exacerbate -- SIA's objections and undermine the integrity of the proceedings.
EPA appears to acknowledge in the Proposed Rule that proposing a CBI eligibility determination for certain data elements is not appropriate based on the proceedings already underway in connection with SIA's petitions for review and for reconsideration. In particular, for one data element described as "identification of the quantifiable metric used in your facility-specific engineering model to apportion gas consumption (may not be reported in 2011, 2012 and 2013)"; Table 3 contains no proposed CBI eligibility determination. EPA explains that
      [SIA petitioned for reconsideration of] "the method and data elements related to apportioning and, as an initial response to that petition, the EPA is not requiring the reporting of these recipe-specific data elements for the 2011, 2012 and 2013 reporting years. . . . Given that the EPA is still considering longer-term responses to the petition, the EPA proposes to evaluate the confidentiality status of these data elements on a case-by-case basis in accordance with existing CBI regulations in 40 CFR part 2, subpart B".
77 Fed. Reg. 10440. Based on a nearly identical explanation, Table 4 also contains no proposed CBI eligibility determination for two data elements  -  "film or substrate that was etched/cleaned and the feature type that was etched" and "certification that the recipes include in a set of similar recipes are similar". Id.
No reason exists to distinguish the foregoing data elements from the others in Subpart I in terms of making a CBI determination. To assure the integrity and due process of the proceedings already underway, EPA's approach for these Table 3 and Table 4 data elements is appropriate and should apply to all Subpart I data elements. We respectfully request that EPA do the following:
   * withdraw the Proposed Rule in recognition that CBI issues fall within the purview of SIA's petitions for reconsideration and for review of Subpart I and the Final CBI Rule;
   * integrate these CBI issues into the current settlement discussions to resolve those petitions; and
   * apply the existing CBI regulations in the meantime to Subpart I reporting.
Response:  Please see Section II of the preamble to the final rule for the response to this comment. 
 Please also note that the petitions referenced by the commenter are the petitions to reconsider the requirements of the December 1, 2010 subpart I rule (75 74774) and the Final Deferral Rule (76 FR 53057, August 25, 2011). 
Commenter Name:  Jay M. Dietrich, CEA Program Manager: Climate Stewardship, Senior Technical Staff Member
Commenter Affiliation:  IBM
Document Control Number:  EPA-HQ-OAR-2011-0028-0024
Comment Excerpt Number:  1
Comment: IBM is actively participating with EPA in the SIA-led dialogue to modify the Subpart I rule to address the substantial concerns detailed in the SIA petition for reconsideration. One of IBM's and SIA's foremost concerns which is driving the need for reconsideration is the protection of intellectual property and trade secrets which cannot be adequately protected by CBI determinations. While the EPA/SIA discussions are making substantial progress, the likely outlines of the rule modifications are still fluid which makes it difficult (if not impossible) to assess which data elements will be considered emissions data or data which are not emissions data but should be considered CBI. SIA's intent in developing rule modifications is to minimize or eliminate the use of and need to submit data the industry considers CBI while providing a Process-GHG emissions estimation methodology which satisfies EPA's precision and accuracy criteria. It is premature for EPA to assess and finalize specific data elements which shall or shall not be deemed CBI because the rule modification discussions are on-going. Likewise it does not allow for meaningful public comment on the confidentiality of data elements when those very data elements are still being determined. IBM strongly encourages EPA to coordinate its proposal for final CBI determinations regarding Subpart I data elements with the modifications to Subpart I.IBM recommends that EPA postpone making its proposal for final CBI determinations as part of or following the publication of the re-proposed Subpart I Rule, since those modifications are still in-progress.
Response: For the response to this comment, please see the response to comment EPA-HQ-OAR-2011-0028-0023, excerpt 1 above, and Section II of the preamble to the final rule. 
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Categorical Confidentiality Determinations  -  Subpart I
Commenter Name:  Julia A. Hatcher, Latham & Watkins LLP
Commenter Affiliation:  Semiconductor Industry Associations (SIA)
Document Control Number:  EPA-HQ-OAR-2011-0028-0023
Comment Excerpt Number:  2
Comment: Annual emissions of each F-GHG emitted from each process type for which your facility is required to calculate emissions as calculated in Equations I-6 and I-7. (98.96c1)
Annual emissions of each F-GHG emitted from each individual recipe (including those in a set of similar recipes). (98.96c2)
Annual emissions of each F-GHG emitted from each process subtype as calculated in Equations I-8 and I-9. (98.96c2)
The above listed data elements go to the heart of a semiconductor manufacturer's intellectual property and trade secrets. Should EPA proceed with this rulemaking, therefore, these 3 data elements simply cannot be classified as CBI ineligible.
With the exception of Cij, the Proposed Rule would render all variables CBI ineligible. As a result, it would be possible to calculate actual gas use by recipe (equation I-8) and process type (equation I-6). The byproduct equations (I-7 and I-9) would allow a similar back-calculation of gas usage. The Proposed Rule would thereby enable competitors to determine the gas proportions at the recipe level and the process level  -  information that goes to the heart of a company's intellectual property and trade secrets because it indicates how gases are being used to create specific features on a chip.
Notably, EPA correctly acknowledges in the Proposed Rule's Preamble that these data elements, if made CBI ineligible, could breach intellectual property and trade secrets:
The conditions under which the individual steps are performed, the ability of a facility to produce certain electronic features, and the ability of a facility to produce a certain number of devices with a minimum number of defects at a certain cost per unit, among other variables, affect the overall efficiency of the manufacturing process, and thus contribute to the business's profitability. These processes, therefore, are a factor in the competitive standing of a particular facility in this industry. [77 Fed. Reg. 10439].
Nevertheless, EPA is proposing to make these data elements CBI ineligible based on its "emissions data" position. EPA's acknowledgement that these data elements implicate intellectual property and trade secrets underscores the irrationality of its "our-hands-are-tied" approach based on the "emissions data" position. Indeed, as discussed in SIA's prior comments and petitions, such a position is not compelled by statute or regulation, and yet, with the Proposed Rule, EPA would apply this position, knowing that it will expose intellectual property and trade secrets. As a result, the Proposed Rule, if finalized, would constitute an abuse of discretion and otherwise does not accord with well-established legal protections.
Response: Please see Section II of the preamble to the final rule for the response to the comment regarding the confidentiality determinations for the following data elements: 
   * Annual emissions of each F-GHG emitted from each process type for which your facility is required to calculate emissions as calculated in Equations I-6 and I-7. (98.96c1)
   * Annual emissions of each F-GHG emitted from each process subtype as calculated in Equations I-8 and I-9. (98.96c2) 
As noted in the preamble, the reverse engineering that the commenter identifies as a concern could only be accomplished if more data were publicly available, in particular certain inputs to emission equations. However, EPA has not made any final determination regarding the confidentiality status of these inputs to equations. In 2011, EPA issued a final rule extending the deadlines for reporting inputs to equations ("Final Deferral Notice"). As explained in the preamble to the Final Deferral Notice, we are currently evaluating the sensitivity of the inputs to equations data elements and, if appropriate, may take action to amend requirements relative to these data elements before they are reported to EPA and potentially subject to release. In light of the above, the situation the commenter describes is hypothetical rather than actual. 
The data element, "Annual emissions of each F-GHG emitted from each individual recipe" (40 CFR 98.96(c)(2)) relates to the recipe-specific method, which is subject to the petition for reconsideration. The EPA did not intend to take action on reporting elements that are currently the subject of these settlement discussions. Due to the number and complexity of data elements included in the proposal, the EPA inadvertently included a few recipe specific reporting elements that were in data categories for which we proposed categorical confidentiality determinations. EPA is therefore not finalizing confidentiality determinations for any recipe-specific data reporting elements in this action. Additionally, the EPA does not expect facilities will use the recipe-specific method for the 2011 reporting year; however, facilities using the recipe-specific method would report recipe-specific data elements. Before the EPA could disclose such information, either on its own initiative or upon request, we would evaluate the confidentiality status of these data elements on a case-by-case basis, in accordance with existing CBI regulations in 40 CFR part 2, subpart B. The recipe-specific subpart I data elements that were inadvertently included in the proposal and have been removed from this final rule are listed in Table 4 in the memorandum titled "Final Data Category Assignments and Confidentiality Determinations for the 2012 Final CBI Rule."
Finally, with regard to the commenter's discussion in the final paragraph of this excerpt, that the Agency's finding that the other 2 data elements are "emission data" "is not compelled by statute or regulation" we disagree: In fact, the definition of "emission data" at 40 C.F.R. 2.301(a)(2(i)) requires this outcome because the two data elements that are not process-specific are actual annual emissions from the source.
Commenter Name:  Jay M. Dietrich, CEA Program Manager: Climate Stewardship, Senior Technical Staff Member
Commenter Affiliation:  IBM
Document Control Number:  EPA-HQ-OAR-2011-0028-0024
Comment Excerpt Number:  2
Comment: With regards to the specific CBI proposal published in the referenced Federal Register, IBM continues to have serious concerns with the process and recipe level data required to be reported and maintained under the final rule. This information involves highly sensitive, proprietary and business critical manufacturing and process information, including trade secrets, that is at the heart of our semiconductor manufacturing processes. Moreover, forcing electronics manufacturers to divulge this exceptionally valuable "recipe level" information, which includes trade secret information, would constitute a "regulatory taking" that would create significant economic harm.
The loss of intellectual property protection resulting from government regulations compelling the divulgation of existing highly valuable trade secrets has been determined to be an unconstitutional taking without just compensation under the Takings Clause. In Phillip Morris v. Reilly, 312 F.3d 24 (1[st] Circ. 2002), a state regulation (the Disclosure Act) required plaintiffs to disclose trade secret ingredient lists. The court held that the Disclosure Act effected a 'regulatory taking' noting that the significant state interest to protect and promote the health or its citizens did not justify the great economic harm to be suffered by the plaintiffs through the loss of their trade secrets.
Much of this recipe-specific information constitutes highly valuable trade secrets for which even CBI protection would be inadequate to prevent great economic harm to electronics manufacturers. Specific data elements proposed to be non-confidential which simply cannot be consider as such, and which should continue to be afforded protection as trade secrets include:
   1. Annual emissions of each Process-GHG emitted from each process type for which your facility is required to calculate emissions as calculated in Equations I-6 and I-7. (98.96c1)
   2. Annual emissions of each Process-GHG emitted from each individual recipe (including those in a set of similar recipes). (98.96c2)
   3. Annual emissions of each Process-GHG emitted from each process subtype as calculated in Equations I-8 and I-9. (98.96c2)
For these three data elements, the entirety of the available data enables someone to back calculate the actual gas use of each gas type for each recipe or subprocess type. In turn, this enables calculation or the relative proportion of each gas type used in a given process type or recipe. Using Equation I-8 as an example, these are the variables in the equation:
      Cij = Amount of input gas i consumed for recipe, process sub-type, or process type j, as calculated in Equation I - 13 of this subpart (kg).
      Uij = Process utilization rate for input gas i for recipe, process sub-type, or process type j (expressed as a decimal fraction).
      aij = Fraction of input gas i used in recipe, process sub-type, or process type j with abatement systems (expressed as a decimal fraction).
      dij = Fraction of input gas i destroyed or removed in abatement systems connected to process tools where recipe, process sub-type, or process type j is used, as calculated in Equation I - 14 of this subpart.
With the exception of Cij, all of the variables are required to be reported to EPA as non-CBI data. As a result, with the reporting of gas use at the recipe or process level it is now possible to calculate actual gas use by recipe (Equation 1-8) and process type (Equation 1- 6). The byproduct equations (1 -7 and 1-9) allow a similar back-calculation of gas use. This enables competitors to determine the gas proportions at the recipe level and the process level which will provide valuable intelligence as to how gases are being used to create specific features. Requiring publication of either gas use or CO2e emissions at the recipe or sub-process level (film or feature type) enables evaluation or the data in a way which will reveal valuable intellectual property and trade secrets.
Response: For a response to this comment, please see the response to comment EPA-HQ-OAR-2011-0028-0023, excerpt 2 above, and Section II of the preamble to the final rule. With regard to the comment that regulation resulting in disclosure of trade secrets could be characterized as an unconstitutional taking, EPA has not evaluated whether an unconstitutional taking could occur in such circumstances because those circumstances are not present here. For a discussion of recipe-specific data elements, including the data element, "Annual emissions of each F-GHG emitted from each individual recipe" (40 CFR 98.96(c)(2)) please see the preamble and the response to comment EPA-HQ-OAR-2011-0028-0023, excerpt 2. Briefly, EPA does not expect facilities will use the recipe-specific method for the 2011 reporting year and the Agency is not finalizing confidentiality determinations for recipe-specific data elements in this action. With regard to the remaining two data elements listed above, for which EPA is finalizing confidentiality determinations in this action, the reverse engineering that the commenter identifies as a concern could only be accomplished if more data were publicly available. Please see the response to comment EPA-HQ-OAR-2011-0028-0023, excerpt 2, for a complete discussion of this topic. 
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Support Removal of BAMM Recalculation Requirements  -  Subpart I
Commenter Name:  Julia A. Hatcher, Latham & Watkins LLP
Commenter Affiliation:  Semiconductor Industry Associations (SIA)
Document Control Number:  EPA-HQ-OAR-2011-0028-0023
Comment Excerpt Number:  7
Comment: EPA agrees "that there may be significant burden imposed by a broad recalculation requirement for subpart I" and also that "ongoing consideration of potential further revisions to the calculation and monitoring requirements complicate the recalculate requirement . . . [and make] automatic imposition of a recalculation requirement . . . inappropriate at this time." In this context, EPA also states that "[i]t is important to note, the majority of other subparts of Part 98 with specific BAMM provisions do not require facilities to recalculate or resubmit emissions estimates after the BAMM period has been concluded". 77 Fed. Reg. 10447.
SIA strongly supports the Proposed Rule's elimination of the BAMM recalculation requirement. In our petition for reconsideration of Subpart I, SIA presented various legal and policy arguments at length which demonstrate the legal impermissibility and technical impracticality of such a recalculation requirement. We incorporate these arguments by reference into our comments today.
Response: The EPA thanks the commenter for their input. We have finalized these provisions as proposed in the subpart I CBI re-proposal (77 FR 10434, February 22, 2012).
Commenter Name:  Jay M. Dietrich, CEA Program Manager: Climate Stewardship, Senior Technical Staff Member
Commenter Affiliation:  IBM
Document Control Number:  EPA-HQ-OAR-2011-0028-0024
Comment Excerpt Number:  6
Comment: IBM strongly supports EPA's proposal to eliminate the BAMM recalculation requirement. 
Response: The EPA thanks the commenter for their input. We have finalized these provisions as proposed in the subpart I CBI re-proposal (77 FR 10434, February 22, 2012).
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Opposition to New BAMM Recalculation Requirement  -  Subpart I
Commenter Name:  Julia A. Hatcher, Latham & Watkins LLP
Commenter Affiliation:  Semiconductor Industry Associations (SIA)
Document Control Number:  EPA-HQ-OAR-2011-0028-0023
Comment Excerpt Number:  8
Comment: In the Proposed Rule's Preamble, EPA mentions the possibility of a re-calculation requirement for "new methodologies". See 77 Fed. Reg. 10447 ("For example, while the agency may want to evaluate the feasibility of a recalculation requirement for any new methodologies . . . ."). SIA does not believe that such recalculation for new methodologies would be appropriate based on these same legal and policy arguments.
Response: The EPA thanks the commenter for their input. The comment in opposition of re-calculation requirements for new methodologies is beyond the scope of this action, which does not include any re-calculation requirement; however, should EPA initiate a rulemaking in the future on this topic, it would include notice and opportunity for public comment.
Commenter Name:  Jay M. Dietrich, CEA Program Manager: Climate Stewardship, Senior Technical Staff Member
Commenter Affiliation:  IBM
Document Control Number:  EPA-HQ-OAR-2011-0028-0024
Comment Excerpt Number:  7
Comment: Also, IBM believes it is unnecessary to consider a recalculation method for "new methodologies" as suggested under Section IV (77 FR 10447). The change in reported emissions expected in transitioning from the EPA Tier 2c method used by IBM under the provisions of its BAMM petition will not result in a material change in the reported emissions. SIA has submitted certain confidential information to EPA as part of the broader reconsideration and modification of Subpart I (i.e., Table E-3 in the file "120228 Etch Report to EPA.pdf"), which establishes that there would be minor increases (< 6%) in emissions estimates from Tier 2c to the SIA 2-factor model is small [sic] for 200 mm fabs and there would be large reductions (>25%) in emissions estimates for the 300 mm fabs. IBM suggests that in light of the proposed reporting under BAMM, EPA should review this confidential information. The minor increase for 200 mm fabs and large reductions for the 300 mm fabs, indicate that there is little value in the effort to recalculate for the etch alternative.
Response:  The EPA thanks the commenter for their input. The comment in opposition of re-calculation requirements for new methodologies is beyond the scope of this action, which does not include any such re-calculation requirement; however, should EPA initiate a rulemaking on this topic in the future, it would include notice and opportunity for public comment.
Subpart W Comments and Responses
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Comments on Inconsistencies on CBI Determinations  -  Subpart W
The comments in this section were submitted by a single commenter. As such, we have listed the name, affiliation, and document control number for the commenter once below, but have listed each distinct comment with its own excerpt number and provided the response immediately following each excerpt.
Commenter Name:  Karin Ritter
Commenter Affiliation:  American Petroleum Institute (API)
Document Control Number:  EPA-HQ-OAR-2011-0028-0027
Comment Excerpt Number:  3
Comment:  98.236c5iiB
There seems to be an inconsistency in the reference to this data element between the CBI proposal (2/24/2012), and the final Subpart W technical corrections (12/23/2011). The final Subpart W rule (76 FR 80588, Friday, December 23, 2011) states, "98.236...(5)...(ii) For Calculation Methodologies 2 and 3 (refer to Equation W - 8 and W - 9 of §98.233), report the following for each sub-basin category :...(B) Count of Plunger Lifts..." In contrast, the proposed CBI rule for Subpart W (77 FR 11051, Friday, February 24, 2012, Table 4) states "§ 98.236c5iiB... For Calculation Methodologies 2 and 3, where the following by each tubing diameter group and pressure group combination within each sub-basin category are reported: Count of plunger lifts."
API understands that this would not change EPA's determination that the count of plunger lifts are not CBI and should therefore be reported and available to the public. API requests that EPA acknowledge this inconsistency and correct it upon promulgation of the CBI rule in order to prevent future confusion.
Response: We agree that the wording in Table 4 of the preamble to the proposed rule does not match exactly the words used in 98.236(c)(5)(ii)(B). However, the data element reported (count of plunger lifts) was clearly stated together with the correct rule citation for this reporting requirement. As requested by API, we have revised the text used for this data element in Table A-1 of the memorandum titled "Final Data Category Assignments and Confidentiality Determinations for the 2012 Final CBI Rule" (see docket EPA-HQ-OAR-2011-0028) such that the wording is the same as that in §98.236(c)(5)(ii)(B). The EPA received no comments objecting to EPA's proposed determination that this data element is not CBI. We have finalized this data element as non-CBI as proposed in the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012).
Comment Excerpt Number:  4
Comment:  98.236(c)(3)(ii)
This data element deals with the CO2 content of the outlet stream for acid gas removal (AGR), and as such it is an input for Eq. W‐3. The inconsistency comes from the fact that the same data element is not CBI for Method 1 (CEMs).
Response: This data element is reported by facilities that use CEMS and facilities that use equation W-3 to calculate emissions. When the facility uses CEMS, the data element is not an input to an equation. Facilities that do not have CEMS use equation W-3 and this data element as an input to that equation to calculate their emissions from the AGR. In the Final Deferral Notice (76 FR 53057, August 25, 2011), the EPA has deferred reporting of this data element for those facilities that use the data element in equation W-3 to calculate the emissions for the facility.  EPA has not made, either in this or any rule, a final confidentiality determination for this data element where it is used in equation W-3 to calculate emissions. In today's action, EPA is finalizing its proposed determination that this data element is emissions data under section 114(c) of the CAA and 40 CFR 2.301(a)(2)(i) when it is reported by a facility using CEMS. The EPA received no comments disagreeing or disputing the proposed determination or supporting rationale. Accordingly, for facilities that use CEMS, we have finalized this data element as emissions data as proposed in the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012); thus, it will not receive confidential treatment.
Comment Excerpt Number:  5
Comment: 98.236(c)(6)(i)(G)‐(H)
These data elements refer to the amount of natural gas recovered from completions and workovers. These data elements are used in adjusting the results for Eq. W‐10A. The proposed
Table A‐7 indicates "Only the amount of natural gas required is deferred." API believes that the word "required" should be replaced with "recovered."

Response: The EPA agrees with the commenter that the description in Table A-7 should have used the word "recovered" instead of "required" to be consistent with the wording in the rule. The EPA has corrected the typographical error. The description in Table A-7 to subpart A now reads as follows: "Only the amount of natural gas recovered is deferred." 

Comment Excerpt Number:  6
Comment: 98.236(c)(7)(i)(A)
This data element is deferred only for Equation W‐14A. It documents the number of blowdowns for each unique volume and is an input for Eq. W‐14A. It is also used in the summation term for Eq. W‐14B, but is not deferred here. For consistency, this data element should be deferred for Equation W‐14B.

Response: The EPA deferred the number of blowdowns (§98.236(c)(7)(i)(A)) for those facilities using equation W-14A to calculate emissions from blowdowns because this data is used as an input in equation W-14A. However, the EPA disagrees with the commenter that the number of blowdowns should be deferred for those facilities using equation W-14B. In equation W-14B, facilities calculate values for individual blowdowns, then sum over all blowdowns. The number of blowdowns is not used as an input to equation W-14B. In the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012), the EPA proposed that, where Equation W-14B is used, this data element is non-CBI. EPA received no comments disagreeing with EPA's proposed determination and supporting rationale. We have therefore finalized this data element as non-CBI as proposed. 
Comment Excerpt Number:  7
Comment: 98.236(c)(10)
This data element is for well testing venting and flaring that are inputs for Eq. W‐17A and W‐17B but are not deferred. EPA should defer this data element as it is an input to an emission equation.
Response: The EPA disagrees with the commenter that any of the data elements listed in §98.236(c)(10) are inputs to equations W-17A and W-17B. 
   * The "number of wells tested" (98.236(c)(10)(i)) is not used in equations W-17A and W-17B. 
   * The "average gas-to-oil ratio" (98.236(c)(10)(ii)) and the "average number of days of well testing" (98.236(c)(10)(iii)) are "averages" and not the actual values used in the equations. 
   * The EPA also disagrees with the commenter's suggestion that the emission data (98.236(c)(10)(iv)-(v)) are inputs to emission equations. These data elements are the CO2, CH4, and N2O emissions and are not inputs to any emission equations. 
The commenter does not provide supporting rationale to explain how any of the data elements listed in 98.236(c)(10)(i) through (v) are inputs to emission equations when they are not used as inputs to equation W-17A or W-17B. We receive no other comment objecting to our proposed determination that these data elements are emissions data. We have therefore finalized the confidentiality determinations for these data elements as proposed in the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012). We have finalized the confidentiality determinations for these data elements as proposed in the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012).
Comment Excerpt Number:  8
Comment: 98.236(c)(11)
This data element is for associated gas venting and flaring that are inputs for Eq. W‐18 and are not deferred. EPA should defer this data element as it is an input to an emission equation.
Response: The EPA disagrees with the commenter that any of the data elements listed under §98.236(c)(11) should be considered inputs to emissions equations because none of them were used in any subpart W equation and the commenter failed to explain the basis for its comment. 
   * The "number of wells venting or flaring associated natural gas" (98.236(c)(11)(i))  is not used as an input to equation W-18 or any other equation in subpart W. The facility uses data for each well and sums the results over all wells. 
   * The "average gas-to-oil ratio" (§98.236(c)(11)(ii))  is not used in equation W-18 or any other equation in subpart W. The "actual" gas-to-oil ratios for each well are used as inputs to equation W-18, not the "average" value for all wells reported under this paragraph. 
   * The data elements §98.326(c)(11)(iii) through (iv) are the CO2, CH4, and N2O emissions and are not inputs to any emission equations. 
Lastly, we have received no comment on our proposed determination that the data elements to be reported under §98.326(c)(11)(i) and (ii) are non-CBI or on our proposed determination that the data elements to be reported under §98.326(c)(11)(iii) through (iv) are emission data. We have therefore finalized the confidentiality determinations for these data elements as proposed in the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012). 
Comment Excerpt Number:  9
Comment: 98.236(c)(15)(ii)(A)
This data element provides count of components for population factors and is an input for Eq. W‐31. API notes that counts for components for leakers are not deferred (Eqs. W‐30A and W‐30B). EPA should defer this data element as it is an input to an emission equation.
Response: The EPA agrees that the count of components (which are reported under §98.236(c)(15)(ii)(A)are used as inputs to equation W-31. This data element is already listed in Table A-7 to subpart A (i.e., the requirement to report this data element is deferred until 2015). However, the EPA disagrees that the count of component types reported under §98.236(c)(15)(i)(A)is an input to equations W-30A and W-30B. Equations W-30A and W-30B  calculate emissions by summing over the number of each component type. The count of each component type is not a value used in either of these equation and therefore, is not considered an input to the emission equations. We have received no comment on our proposed determination that the data elements to be reported under §98.326(c)(15)(i)(A) are non-CBI. Therefore, we have finalized the confidentiality determination for the count of component types as proposed in the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012).
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CBI Determination for Unit/Process Static and Operating Data Elements  -  Subpart W
Commenter Name:  Craig Segall, et al.
Commenter Affiliation:  Clean Air Task Force, Sierra Club, Natural Resources Defense Council, Environmental Defense Fund, Center for Biological Diversity
Document Control Number:  EPA-HQ-OAR-2011-0028-0028
Comment Excerpt Number:  1
Comment: We support EPA's determinations in Tables 3 and 4 of the proposed rule, which correctly conclude that information on the vast majority of wellfield equipment is not CBI, but instead reflects basic static and operating characteristics of the equipment that is either publicly known, commercially irrelevant, or both. Such data is, on the other hand, of considerable importance to producing verifiable, useful results. For instance, information on the location and number of separators used onsite will help EPA determine where such sources are located and to verify their emissions. See, e.g. id. at Table 3, entries 2-11.
In particular, we are pleased that EPA proposes that many well-specific emissions data points are not CBI, and will not be deferred. Well emissions are the lion's share of pollution from natural gas production. Information on, for instance, the number of wells being vented to the atmosphere, the number of completions per year, and the number of workovers per year will help EPA and other regulators to more effectively control these major pollution sources, which also generally emit significant amounts of smog-forming VOCs along with their methane emissions.
Information on these processes will be particularly useful in public evaluation of emissions from these data sources and will also help address important scientific debates regarding these sources in an effort to control their emissions. Specifically, EPA's determinations in Table 4, entries 2-12, which classify a series of data points related to well venting, completions, and workovers as non-CBI operating characteristics, will provide important data to the public and to policymakers for shaping control policies. We agree with EPA that this information is generally publicly available in various databases, meaning that it is not CBI, but emphasize that gathering it through Subpart W will help enhance availability and subject that data to useful additional verification.
Response: The EPA thanks the commenter for their input. We have finalized the confidentiality determinations for these data elements as proposed in the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012).
Commenter Name:  Craig Segall, et al.
Commenter Affiliation:  Clean Air Task Force, Sierra Club, Natural Resources Defense Council, Environmental Defense Fund, Center for Biological Diversity
Document Control Number:  EPA-HQ-OAR-2011-0028-0028
Comment Excerpt Number:  4
Comment: . . . we do not support EPA's proposed classification of 40 C.F.R. §98.234(f)(8)(ii)(C) as CBI. This data point relates to EPA's practice of granting certain operators permission to use Best Available Monitoring Methods ("BAMM") after 2011. BAMM methods undermine the quality of Subpart W data, and should be eliminated as quickly as possible. The data point in question requires operators to provide a "[d]etailed explanation ... of when the owner and operator will receive the services or equipment to comply with all of these subpart W reporting requirements" rather than using BAMM. 77 Fed. Reg. at 11,057.

Subpart W's full implementation is a matter of vital public importance. Thus, this data point, which documents when operators will fully comply, is central to the success of the program Congress mandated. EPA may not withhold this information from the public. Nor has EPA provided a rational justification for its CBI determination. Initially, the determination is based on no record evidence submitted by industry, and so is contrary to law. See 40 C.F.R. § 2.203(b) (requiring submission of such evidence). Moreover, the justification that EPA supplies is not persuasive. EPA posits that stating a compliance date would provide competitors with information on when a facility would "plan to perform the necessary modifications to their processes in order to comply with the rule." 77 Fed. Reg. at 11,057. Perhaps so, but such information is not "likely to cause substantial harm to the business's competitive position." See 40 C.F.R. § 2.208(e)(1). Subpart W monitoring will not disrupt oil or gas production in any competitively relevant way; the brief disruptions associated with monitoring equipment installations will quickly pass. Likewise, companies are required to come into full compliance with the mandatory reporting program, and company disclosure of information confirming such progress will give no advantage to competitors, themselves subject to the same requirements.

Response:  We have finalized the confidentiality determination for this data element as CBI as proposed in the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012). In our proposal, we stated that our rationale for proposing a CBI determination for this data element is that its disclosure would reveal forward-looking information about when a facility will take equipment off-line to install equipment or make modifications to their processes. We further noted that this type of forward-looking information discloses sensitive information about future disruptions in production that may give competitors an unfair advantage. For additional discussion of our reasons for finalizing a CBI determination for this data element, please see Section II of the preamble to the 2012 Final CBI Rule.

We disagree that our determination is contrary to law because 40 CFR 2.203(b) was not followed. 40 CFR 2.203(b), which requires facilities to claim data as CBI at the time they report the data to the EPA,  does not apply to this final rule because we are issuing this rule pursuant to our authority under CAA sections 114, 301 and 307. See 40 CFR 2.301(d)(2): 
"Except as otherwise provided in paragraphs (d)(2) and (d)(4) of this section, §§2.201 through 2.215 do not apply to data submitted under 40 CFR part 98 data that EPA has determined, pursuant to sections 114(c) and 307(d) of the Clean Air Act, to be entitled to confidential treatment. EPA shall treat that information as confidential in accordance with the provisions of §2.211, subject to paragraph (d)(4) of this section and §2.209."  
Commenter Name:  Pamela Lacey
Commenter Affiliation:  American Gas Association (AGA)
Document Control Number:  EPA-HQ-OAR-2011-0028-0026
Comment Excerpt Number:  2
Comment: AGA supports EPA's decision to require natural gas producers to report in September 2012 the population count of (40 CFR 98.236(c)(6)(i)(G)) reduced emission completions (or "green completions") and nongreen completions for hydraulically fractured "unconventional" gas wells in calendar year 2011. This will help provide hard data to demonstrate the low carbon footprint of the natural gas value chain.
Response:  The data element identified by the commenter (40 CFR 98.236(c)(6)(i)(G)) has been finalized as non-CBI as proposed in the Subpart W CBI re-proposal (77 FR 11039, February 24, 2012). 
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CBI Determination for Inputs  -  Subpart W
Commenter Name:  Pamela Lacey
Commenter Affiliation:  American Gas Association (AGA)
Document Control Number:  EPA-HQ-OAR-2011-0028-0026
Comment Excerpt Number:  1
Comment: We do not see any need to seek CBI protection for or to defer the reporting deadline for the company-specific emission factor developed under equation W-32 for pressure regulator stations or for the number of miles of pipe. AGA members already report their miles of pipe by material type (e.g. protected steel, unprotected steel, cast iron, plastic) to the Department of Energy (DOE) Energy Information Administration (EIA) every year. As this is already public information, it is certainly not confidential, and there is no reason to delay reporting this data to EPA under Subpart W by September 28, 2012. AGA requests that EPA revise the CBI Deferral Rule to require reporting this data beginning with reports on 2011 emissions to be filed by Sept. 28, 2012. We are eager to give EPA good, accurate data to demonstrate the low carbon footprint of natural gas delivery operations, so we urge you not to defer reporting the number of miles of pipe until 2015. Assuming EPA is able to clarify and correct errors in Equation W-32 and related regulatory provisions through an upcoming Technical Corrections Rule and incorporate these corrections in the e-GRRT electronic reporting tool, we see no need to defer reporting the company-specific emission factors calculated under Equation W-32 for LDC pressure regulator stations.
Response:  The EPA appreciates the stakeholder's comments regarding the data elements in 40 CFR 98.236(c)(16)(ix) through (xiii). The EPA finalized the deferral of the reporting deadline for these data elements (which are inputs to emissions equations) in the Final Deferral Notice and did not reopen that final rule for notice and comment in the present rulemaking. Therefore, this comment is beyond the scope of this rulemaking. 
Commenter Name:  Craig Segall, et al.
Commenter Affiliation:  Clean Air Task Force, Sierra Club, Natural Resources Defense Council, Environmental Defense Fund, Center for Biological Diversity
Document Control Number:  EPA-HQ-OAR-2011-0028-0028
Comment Excerpt Number:  6
Comment: . . . withholding or declining to collect emissions data is particularly troubling in the Subpart W context, both because the information withheld is of vital public interest and because it is of no competitive relevance. Our earlier comments show that the vast majority of withheld data points are either publicly available already or of no conceivable use to a competitor. EPA has, for instance, opted to defer collection of pneumatic valve counts. See EPA, Memorandum  -  Proposed Data Category Assignments for Subpart W (Jan. 26, 2012) ("Category Memo") at 4 (listing these data points). Because these valves leak, and are major emissions sources, they are quite important to public emissions control policy. Nor is there any valid argument that economic competitors could make use of this information in the market. EPA's approach therefore is unjustifiable.
Because these types of deferral determinations exceed EPA's statutory authority and contravene Congress's mandate that EPA develop a transparent, economy-wide greenhouse gas inventory, we continue to oppose them. Though EPA has made many of its decisions in the Final CBI Deferral Rule itself [76 FR 53057, August 25, 2011], the agency nonetheless must avoid worsening the harm through this new proposed rule. 
We do not support EPA's decision to defer collection and reporting of a further 10 new data elements simply because they are "inputs to emission equations." See 77 Fed. Reg. at 11,042. As we explained in our earlier comments, this justification is not legal. Industry may not withhold information as CBI unless industry carries a substantial evidentiary burden (which it has not even attempted to do), see 40 C.F.R. § Pt. 2 Subpt. B, and may not withhold emission data at all, see 40 C.F.R § 2.301.
Inputs to emission equations are manifestly emission data, because they meet the regulatory definition of such data as "information necessary to determine the identity, amount, frequency, concentration or other characteristics . . . of any emission which has been emitted," or information necessary to determine the characteristics of any emissions which "under an applicable standard or limitation" a source may emit, or even "[a] general description of the location and/or nature of the source." 40 C.F.R. § 2.301(a)(2)(i). Although EPA continues to characterize its "deferral" of data submissions as distinct from a proposal to "withhold" data, the practical effect, and hence the legal consequence, of declining to conduct required data collection is the withholding of collected data from the public. EPA cannot, in this way, avoid collecting and disclosing important data from this industry.

The specific deferred inputs here plainly fit the emission data definition. They include the "emissions" from blowdown vent stacks, which are obviously emission data. 77 Fed. Reg. at 11,058. They also include data on gas-liquid separators which is necessary to calculate the emissions from these sources. See id. EPA may not defer collection of this data.

Moreover, all of the deferrals are particularly inappropriate because reporting on oil and gas industry practices, including emissions from wellsite infrastructure, will be enhanced by the soon-to-be-final oil and gas production NSPS. Although that rule, as proposed, does not require methane reporting, it does improve monitoring and reporting requirements for VOC emissions, which are co-emitted with methane. EPA must, therefore, consider whether information is made publicly available by the NSPS before determining that any information in Subpart W is CBI, or warrants deferred collection. 
Response: The EPA disagrees with these comments. Title II of the 2008 Consolidated Appropriations Act (H.R. 2764; Pub. L. 110 - 161) requires the EPA to establish "mandatory reporting of greenhouse gas emissions above appropriate thresholds in all sectors" of the U.S. economy through publication of a draft rule within 9 months of the promulgation of the Appropriations Act and a final rule within 18 months, a task the EPA accomplished in its promulgation of the Greenhouse Gas Reporting Program under Part 98. Congress left the agency discretion in determining the specific data to be reported, timing of data reporting, and the methods of data calculation and verification. Based on this authority, EPA issued the Final Deferral Rule deferring reporting of inputs to equations, including those in subpart W. Consistent with the Final Deferral Rule, EPA is deferring the reporting deadline for 10 new subpart W input data elements to 2015 in this final rule. The commenter does not claim that these 10 new subpart W data elements should be treated differently from the other inputs to equations covered by the Final Deferral Rule. Rather, the commenter is against deferring reporting of inputs to equations in general. EPA took final action to defer reporting of inputs to equations in the Final Deferral Rule. EPA has not revisited its decision in that final rule in the present rule making. EPA therefore considers this general comment beyond the scope of this rulemaking. 
During the deferral period, reporters must continue to report GHG emission levels and all other data required under Part 98 that are not identified as inputs to emission equations.
The EPA has not deferred the reporting deadline for emissions from blowdown stacks (reported under 40 CFR 98.236(c)(7)(ii)(B)). As finalized in the 2012 CBI Rule, these data elements are not eligible for confidential treatment because they have been determined to meet the definition of "emission data" in 40 CFR 2.301(a)(2)(i). As noted in previous rulemakings, the EPA plans to publish data on GHG emissions and other non-CBI information on our Web site (see http://www.epa.gov/climatechange/emissions/ghgdata/index.html)
The commenter states that reporting of emissions from blowdown stacks (reported under 40 CFR 98.236(c)(7)(ii)(B)) should not be deferred because the data are emissions data. However, the EPA has not deferred the reporting deadline for this data element and agrees with the commenter that these data elements are not eligible for confidential treatment because they have been determined to meet the definition of "emission data" in 40 CFR 2.301(a)(2)(i). As noted in previous rulemakings, the EPA plans to publish data on GHG emissions and other non-CBI information on our Web site (see http://www.epa.gov/climatechange/emissions/ghgdata/index.html)
We also disagree that our decision to defer subpart W data elements is inappropriate because the reporting of information on wells will be enhanced by revisions to the Oil and Natural Gas Sector NSPS. None of the subpart W data elements determined to be CBI or deferred by this rulemaking will be reported under the recently promulgated Oil and Natural Gas Sector New Source Performance Standards (NSPS). We have also reviewed the docket for this rulemaking (see EPA-HQ-OAR-2010-0505) and determined that the data elements determined to be CBI in the 2012 Final CBI Rule are not already publicly available through the NSPS rulemaking docket. 
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General Confidentiality Claims  -  Subpart W
Commenter Name:  Karin Ritter
Commenter Affiliation:  American Petroleum Institute (API)
Document Control Number:  EPA-HQ-OAR-2011-0028-0027
Comment Excerpt Number:  1
Comment: Federal law and state codes allow companies to designate as confidential data obtained from exploratory wells, especially in new discovery areas, or areas that are being explored for development. The original intent of state oil and gas commissions to allow withholding of select drilling and production information from early release to the public was to allow competitive exploration by searching for new pockets of oil or gas and experimenting with new tools and techniques.
Early release of data on operating characteristics of such wells, including post‐flowback flaring/venting volumes could cause competitive harm if it is publicly available too early. Industry makes substantive investments in exploration and development projects in new areas; these are very costly and it takes a long time to characterize the magnitude and potential production characteristics of prospective resources. In some areas, companies may spend hundreds of millions of dollars per exploration project, in addition to the hundreds of millions of dollars invested to acquire leases. These costs consist of testing the prospective area via drilling, analyzing field and laboratory information and making a determination whether it is a viable commercial play. Releasing data on such wells through the EPA GHGRP ‐ despite the fact that they are held confidential by other regulatory bodies ‐ could cause substantial competitive harm and lead to a loss of investment value.
Competitive advantage includes the ability to shield sensitive information on company's operations including oil and gas reserve information on new wells, internally developed assessments of geologic prospects, drilling plans and interim results. Competitive harm may occur if the public can obtain detailed high resolution operational information on a well‐by‐well basis and on a daily or weekly basis. The success of a well and of a particular play ‐ especially in exploratory areas ‐ could be inferred if detailed data is provided to the public too soon during the exploration and assessment period, and where according to state practices the data are not already publicly available. An example of such an occurrence might be an exploratory well completed in December of the reporting year, reported to EPA by end of March of the following year and then the data being released by EPA to the public within a few months during the same year.
To clarify, API's confidentiality concerns associated with information on exploratory wells is related to the timing of releasing this information to the public. The information is most sensitive if it is made available too early during the exploration or initial development stages.
Federal regulations recognize broadly in Title 43 of the CFR the need to regulate public availability of information for oil and gas related operations as provided in § 3162.8 [47 FR 47765, Oct. 27, 1982. Redesignated and amended at 48 FR 36583 - 36586, Aug. 12, 1983, further amended at 49 FR 37364, Sept. 21, 1984; 53 FR 17364, May 16, 1988]:
§ 3162.8 Confidentiality
(a) Information obtained pursuant to this part and on file shall be open for public inspection and copying during regular office hours upon a written request, pursuant to rules at 43 CFR part 2, except that:
(1) Upon request, information obtained from an operating rights owner or operator under this part that constitutes trade secrets and commercial or financial information which is privileged or confidential or other information that may be withheld under the Freedom of Information Act (5 U.S.C. 552(b)), such as geologic and geophysical data and maps, shall not be available for public inspection or made public or disclosed without the consent of the operating rights owner or operator, as appropriate, for a period of 12 months;
(2) Upon expiration of the 12-month period, the operating rights owner or operator, as appropriate, may request that the data be held confidential for an additional 12-month period; and
(3) Upon termination of a lease, whether by expiration of its terms or otherwise, such information shall be made available to the public.
Furthermore, many state agencies recognize that information about the initial exploratory drilling phase is sensitive and have made special provisions for these situations. The examples provided below are intended to illustrate how state agencies are dealing with this situation:
i. Alaska State Code (AS 31.05.035) specifies procedures for "Confidential Reports".
Section (c) of the Alaska Code recognizes that:
"... information required in (a) of this section that relate to an exploratory or stratigraphic test well and those portions of an application for a permit to drill an exploratory or stratigraphic test well that the commission determines contain proprietary engineering or geotechnical information shall be kept confidential for 24 months following the 30-day filing period unless the owner of the well gives written permission to release the application and reports and information at an earlier date."
ii. Texas Administrative Code (title 16 part 1 chapter 3, Oil and Gas) states in section (d) of rule 3.16:
"(d) Delayed filing based on confidentiality. Each log filed with the commission shall be considered public information and shall be available to the public during normal business hours. If the operator of a well desires a log to be confidential, on or before the 90th day after the date a drilling operation is completed, the operator must submit a written request for a delayed filing of the log. When filing such a request, the operator must retain the log and may delay filing such log for one year beginning from the date the drilling operation was completed. The operator of such well may request an additional filing delay of two years, provided the written request is filed prior to the expiration date of the initial confidentiality period. If a well is drilled on land submerged in state water, the operator may request an additional filing delay of two years so that a possible total delay of five years may be obtained."
API requests that EPA categorically determine that all information (with the exception of wells ID and locations), that is associated with exploratory wells, is to be classified as CBI for a period of at least 24 months from the start of exploration. API stipulates that during that time companies will report all data to EPA as mandated by Subpart W, but EPA will hold the reported data as CBI and not include it in its public data release for 24 months.
API maintains that this approach is amenable to implementation in practice since it will not require case‐by‐case review of companies' information, it is consistent with the approach taken by states' oil and gas commissions and is protective of companies' commercial investment interests.
Response: For the response to this, please see Section II of the preamble to the final rule. 
As EPA explains in Section II of the preamble, the data elements required to be reported under subpart W are not the same as information which may be held confidential under the state regulations mentioned by the commenter. Subpart W does not include any sensitive information about the underlying geology or potential productivity of an exploratory well, which are the types of information noticed in state regulations for confidential treatment. Furthermore, the federal regulation (43 CFR 3162.8, Department of Interior) cited by the commenter was withdrawn and is no longer in effect. Rather, Department of Interior regulations governing public availability of information (43 CFR 3100.4) and that agency's CBI regulations (43 CFR 2.23) control the treatment of information claimed to be business confidential. The commenter does not assert that Interior has found the subject information to be CBI; EPA has no evidence of such a finding.
Commenter Name:  Karin Ritter
Commenter Affiliation:  American Petroleum Institute (API)
Document Control Number:  EPA-HQ-OAR-2011-0028-0027
Comment Excerpt Number:  2
Comment: EPA states in section III.D. of the preamble (77 FR 11057),
"Please note that this will be reporters' only opportunity to substantiate your confidentiality claim. Once finalized, the EPA will release or withhold subpart W data in accordance with 40 CFR 2.301, which contains special provisions governing the treatment of Part 98 data for which confidentiality determinations have been made through rulemaking."
API maintains that EPA's statement is too expansive. Confidentiality claims should not be determined only through rulemaking. API asks that EPA reconsider this statement and maintain the flexibility for companies to request confidentiality treatment of data on a case specific basis, as is afforded broadly for reporting under the CAA, and as stated in API's initial comments on the CBI designation[1].
No categorical determination by rulemaking is perfect and EPA cannot foresee all unique and unusual circumstances that might be encountered by companies in practice. As noted above, API does not have issues with EPA's allocation of data elements to the categories proposed, but it continues to assert that facilities should have the right to request CBI designation for certain data elements if, and when, they encounter unique or unusual circumstances.
API recommends that a flexible process, which allows the data to be reported to EPA without delay while preventing public release of commercially sensitive information, could be implemented through the electronic greenhouse gas reporting tool (e‐GGRT). The e‐GRRT system could allow companies to mark as CBI specific data elements within the two categories for which EPA did not make a categorical determination[2]. Such an approach is already implemented in the State of California version of e‐GGRT (known as `Cal e‐GGRT'), and it should be considered for adoption nationwide. API contends that such an approach would ensure that EPA receives the mandatory reports, and EPA would then address the specific requests directly with the respective companies prior to releasing that data to the public.
Footnotes:
1. API comments to Docket ID No. EPA-HQ-OAR-2009-0924, September 7, 2010, page 18 of 81:
"API acknowledges that providing categorical exemptions for CBI designations would simplify the process and could, if properly designed, protect commercially sensitive information. However, it is clear that even with the best designed system there could be special unforeseen circumstances that would require CBI designation and exemption from data being made available to the public. For example, some facilities may be required to adopt a monitoring plan and EPA may request certain data collected under that plan. This data could warrant confidential treatment, but may not be expressly covered by any of the data elements in the proposed rule. These facilities should be provided an option to request a CBI designation for this data."
2. The two categories referenced are: `Unit/Process "Static" Characteristics that are Not Inputs to Emission Equations' and `Unit/Process Operating Characteristics that are Not Inputs to Emission Equations.'
Response: Please note that the EPA statement quoted by the commenter is simply a restatement of EPA's regulation at 40 CFR 2.301 that the general subpart B CBI regulations, including procedures for substantiations by data submitters and case-by case determinations by EPA, do not apply to data reported to EPA under 40 CFR part 98. EPA has not reopened this specific regulatory provision for notice and comment in the present rulemaking. Therefore the comment is beyond the scope of this rulemaking. 
SUPPLIER SUBPARTS
Subpart QQ Comments and Responses
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CBI Determination for Unit/Process Operating Data Elements  -  Subpart QQ
Commenter Name:  Jennifer Silvi, Manager of Government Affairs
Commenter Affiliation:  Air-Conditioning, Heating and Refrigeration Institute (AHRI)
Document Control Number:  EPA-HQ-OAR-2011-0028-0019
Comment Excerpt Number:  1
Comment: Further, EPA proposes to classify the following data elements for Subpart QQ as non-CBI:
   1. Dates on which pre-charged equipment were imported/exported;
   2. Dates on which closed-cell foams were imported/exported;
   3. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: dates on which the closed-cell foams were imported/exported;
   4. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: certification that the importer/exporter was unable to obtain information on the identity and mass of the F-GHGs within the closed-cell foam from the closed-cell foam manufacturer(s).
EPA found that the release of the above four data elements "would not likely cause substantial competitive harm because certification statements are general in nature, do not provide any insight into the design or operation efficiencies of the plant, and do not reveal other competitive information. . . . Dates do not reveal information related to the type or quantity of product imported or exported, or to the operational strengths or weaknesses, operational capacity, or customer base of the reporter. Dates of import or export would not likely cause substantial competitive harm if released because dates do not provide any insight into at what percent of capacity a firm is operating or into financial performance, the release of which might allow competitors to implement short-term price cutting tactics to capture the reporter's market share." 77 Fed. Reg. 1445-46.
AHRI does not agree with this determination. If EPA were to provide the data specified above to the public as proposed, it would more easily allow competitors to link import and export data to publicaly available customs data. For example, the bill of lading number, foreign port of lading, manifest quantity, manifest units, weight, weight unit, shipper name, shipper address, piece count, and description of goods, among other data, are all available to the public under the Freedom of Information Act. Furthermore, there are companies that data mine manifest information and make it available for purchase. To protect confidential and competitively sensitive information, importers/exporters may submit manifest confidentiality requests to U.S. Customs and Border Protection's (CBP) disclosure law officer to protect as confidential its name and address. See 19 C.F.R. § 103.31(d)(1) (permitting importers and consignees to request confidential treatment of their name and address contained in inward manifests, including identifying marks and numbers; also permitting importers and consignees to request confidential treatment of the name and address of the shipper(s) to such importer or consignee); 19 C.F.R. § 103.31(d)(2) (permitting shippers to request confidential treatment by CBP of the shipper's name and address contained in an outward manifest). Many importers/exporters do request such confidential treatment so that competitively sensitive information, such as shipment data (i.e., production quantities), cannot be discerned by those reviewing manifest information.
EPA's proposal would release information that could be cross-referenced with the publicly available information discussed above, thus undermining CBP granted confidentiality requests. For example, based on the manifest data, data related to origins, commodities, and volumes is available to the public, but it is not specifically tied to a particular importer/exporter who has requested and been granted confidential treatment of its name and address. However, if a competitor were to have the data EPA proposes to release, which lists the company by name and would provide the relevant dates and certification statements, that competitor could, with little difficulty, cross-reference the data and determine which manifest data belongs to the once-anonymous importer/exporter. If competitors (both domestic and international) are more easily able to discern import and export practices, and potentially shipment data, by back calculating figures  -  there is a significant competitive risk to businesses required to report to EPA under the proposed rule.
Response: For the response to this comment disagreeing with the proposed confidentiality determinations of these eight data elements, please see Section II of the preamble to the final rule. 
Commenter Name:  Jennifer Cleary, Director of Regulatory Affairs
Commenter Affiliation:  Association of Home Appliance Manufacturers (AHAM) 
Document Control Number:  EPA-HQ-OAR-2011-0028-0020
Comment Excerpt Number:  2
Comment: EPA proposes to classify the following data elements as non-CBI: 
   1. Dates on which pre-charged equipment were imported/exported; 
   2. Dates on which closed-cell foams were imported/exported; 
   3. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: dates on which the closed-cell foams were imported/exported;
   4. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: certification that the importer/exporter was unable to obtain information on the identity and mass of the F-GHGs within the closed-cell foam from the closed-cell foam manufacturer(s). 
EPA found that the release of the above four data elements "would not likely cause substantial competitive harm because certification statements are general in nature, do not provide any insight into the design or operation efficiencies of the plant, and do not reveal other competitive information. . . . Dates do not reveal information related to the type or quantity of product imported or exported, or to the operational strengths or weaknesses, operational capacity, or customer base of the reporter. Dates of import or export would not likely cause substantial competitive harm if released because dates do not provide any insight into at what percent of capacity a firm is operating or into financial performance, the release of which might allow competitors to implement short-term price cutting tactics to capture the reporter's market share." 77 Fed. Reg. 1445-46. 
AHAM disagrees. As we previously commented, were EPA to provide the data specified above to the public as proposed, it would more easily allow competitors to link import and export data to related customs data. For example, the bill of lading number, foreign port of lading, manifest quantity, manifest units, weight, weight unit, shipper name, shipper address, piece count, and description of goods, among other data, are all available to the public under the Freedom of Information Act. Additionally, there are companies that data mine manifest information and make it available for purchase. To protect confidential and competitively sensitive information, importers/exporters may submit manifest confidentiality requests to U.S. Customs and Border Protection's (CBP) disclosure law officer to protect as confidential its name and address. See 19 C.F.R. § 103.31(d)(1) (permitting importers and consignees to request confidential treatment of their name and address contained in inward manifests, including identifying marks and numbers; also permitting importers and consignees to request confidential treatment of the name and address of the shipper(s) to such importer or consignee); 19 C.F.R. § 103.31(d)(2) (permitting shippers to request confidential treatment by CBP of the shipper's name and address contained in an outward manifest). Many importers/exporters do request such confidential treatment so that competitively sensitive information, such as shipment data (i.e., production quantities), cannot be discerned by those reviewing manifest information. 
EPA's proposal would release information that could be cross-referenced with the publicly available information discussed above, thus undermining CBP granted confidentiality requests. For example, based on the manifest data, data related to origins, commodities, and volumes is available to the public, but it is not specifically tied to a particular importer/exporter who has requested and been granted confidential treatment of its name and address. If, on the other hand, a competitor were to have the data EPA proposes to release, which lists the company by name and would provide the relevant dates and certification statements, that competitor could, with little difficulty, cross-reference the data and determine which manifest data belongs to the once-anonymous importer/exporter. If competitors (both domestic and international) are more easily able to discern import and export practices, and potentially shipment data, by back calculating figures, there is a significant competitive risk to businesses required to report to EPA under the proposed rule. 
Accordingly, AHAM does not support EPA's classification as non-CBI: 
   1. Dates on which pre-charged equipment were imported/exported; 
   2. Dates on which closed-cell foams were imported/exported; 
   3. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: dates on which the closed-cell foams were imported/exported; and/or 
   4. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: certification that the importer/exporter was unable to obtain information on the identity and mass of the F-GHGs within the closed-cell foam from the closed-cell foam manufacturer(s). 
If EPA nevertheless determines to make that data available to the public as non-CBI, it must not connect any data to the particular importer/exporter from which it came. Only by keeping the data anonymous can the above-described effects be avoided. 
AHAM appreciates the opportunity to submit these comments on EPA's Proposed Confidentiality Determinations for Data Elements Under the Mandatory Reporting of Greenhouse Gasses Rule, Docket No. EPA-HQ-OAR-2011-0028; RIN 2060-AQ70, and would be glad to discuss this matter further. 
Response:  For the response to this comment regarding the proposed confidentiality determinations of these eight data elements, please see Section II of the preamble to the final rule. 
--------------------------------------------------------------------------------
General Confidentiality Claims  -  Subpart QQ
Commenter Name:  Jennifer Silvi, Manager of Government Affairs
Commenter Affiliation:  Air-Conditioning, Heating and Refrigeration Institute (AHRI)
Document Control Number:  EPA-HQ-OAR-2011-0028-0019
Comment Excerpt Number:  2
Comment: EPA proposes to classify the following information, reported under Subpart QQ, as confidential business information (CBI):
   1. Total mass of each fluorinated greenhouse gas (F-GHG) imported/exported in pre-charged equipment or closed-cell foams;
   2. Identity of imported/exported F-GHG used as a refrigerant or electrical insulator;
   3. Identity of the imported/exported F-GHG contained in the closed-cell foam in each appliance;
   4. Identity of the imported/exported F-GHG in the foam;
   5. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: total mass in metric tons of CO2e of the F-GHGs imported/exported in closed-cell foams;
   6. Charge size (holding charge, if applicable) for each type of pre-charged equipment imported/exported;
   7. Number of pre-charged equipment imported/exported;
   8. Mass of the imported/exported F-GHG contained in the foam in each appliance;
   9. Number of appliance imported/exported;
   10. Density of the imported/exported F-GHG in the foam;
   11. Volume of the foam imported/exported;
   12. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: for closed-cell foams that are imported/exported inside of appliances, the mass of the F-GHGs in CO2e contained in the foam in each appliance;
   13. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: for closed-cell foams that are imported/exported inside of appliances, the number of appliances imported/exported for each type of appliance;
   14. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: for closed-cell foams that are not imported/exported inside of appliances, the mass in CO2e of the F-GHGs in the foam;
   15. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: for closed-cell foams that are not imported/exported inside of appliances, the volume of foam imported/exported for each type of closed-cell foam.
AHRI strongly agrees with EPA that the above items should be classified as CBI and protected from disclosure. The disclosure of these data elements would cause substantial harm to the competitive positions of HVACR manufacturers reporting these data. If these data elements were released, competitors could gain insight into the marketing and operational strategies of those reporting to EPA.
Response: The EPA thanks the commenter for their input. We have finalized the confidentiality determinations for these data elements as proposed in the 2012 CBI re-proposal (77 FR 1434, January 10, 2012). 
Commenter Name:  Jennifer Cleary, Director of Regulatory Affairs
Commenter Affiliation:  Association of Home Appliance Manufacturers (AHAM) 
Document Control Number:  EPA-HQ-OAR-2011-0028-0020
Comment Excerpt Number:  1
Comment: EPA proposes to classify the following information, reported under Subpart QQ, as confidential business information (CBI): 
   1. Total mass of each fluorinated greenhouse gas (F-GHG) imported/exported in pre-charged equipment or closed-cell foams; 
   2. Identity of imported/exported F-GHG used as a refrigerant or electrical insulator; 
   3. Identity of the imported/exported F-GHG contained in the closed-cell foam in each appliance; 
   4. Identity of the imported/exported F-GHG in the foam; 
   5. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: total mass in metric tons of CO2e of the F-GHGs imported/exported in closed-cell foams; 
   6. Charge size (holding charge, if applicable) for each type of pre-charged equipment imported/exported; 
   7. Number of pre-charged equipment imported/exported; 
   8. Mass of the imported/exported F-GHG contained in the foam in each appliance; 
   9. Number of appliance imported/exported; 
   10. Density of the imported/exported F-GHG in the foam; 
   11. Volume of the foam imported/exported; 
   12. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: for closed-cell foams that are imported/exported inside of appliances, the mass of the F-GHGs in CO2e contained in the foam in each appliance; 
   13. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: for closed-cell foams that are imported/exported inside of appliances, the number of appliances imported/exported for each type of appliance; 
   14. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: for closed-cell foams that are not imported/exported inside of appliances, the mass in CO2e of the F-GHGs in the foam; 
   15. If the importer/exporter does not know the identity and mass of the F-GHGs within the closed-cell foam: for closed-cell foams that are not imported/exported inside of appliances, the volume of foam imported/exported for each type of closed-cell foam. 
AHAM strongly agrees with EPA that the above items should be classified as CBI and protected from disclosure. The disclosure of these data elements would cause substantial harm to the competitive positions of home appliance manufacturers reporting these data. If these data elements were released, competitors could gain insight into the marketing and operational strategies of those making the report. 
Response: The EPA thanks the commenter for their input. We have finalized the confidentiality determinations for these data elements as proposed in the 2012 CBI re-proposal (77 FR 1434, January 10, 2012). 
Subpart RR Comments and Responses
--------------------------------------------------------------------------------
CBI Determination for GHGs Reported and Production/Throughput Data Elements  -  Subpart RR

Commenter Name:  William A. Collins, Jr., Senior Director of Regulatory Affairs
Commenter Affiliation:  Occidental Petroleum Corporation
Document Control Number:  EPA-HQ-OAR-2011-0028-0021
Comment Excerpt Number:  3
Comment: Occidental believes that the data elements related to the quantity of CO2 produced are CBI (99.446f4i, f4ii, f4iii, and f4iv). First, contrary to EPA's implication in the proposal, the total mass of produced CO2 by well or within a field is not publicly available information. EPA states in the proposal, at 77 FR 1447: 
State oil and gas conservation agencies in all States where enhanced oil and gas recovery is occurring collect information on quantities of oil and gas produced by well to calculate royalties. This information is reported to EPA or States at least annually and made available to the public either through State Web sites or upon request from the public. Moreover, incremental oil production from CO2 injection is published in the biannual Oil & Gas Journal Enhanced Oil Recovery survey. Given the present level of reporting of production in the EOR industry just described (i.e., information is made publicly available by States and in the biannual industry reports), EPA finds that CO2 production information does not provide additional insight into any aspect of operations the release of which might undercut any competitive advantage that the reporter may enjoy.
Occidental recognizes that data on oil and gas production from ER wells is publicly available, and is familiar with the 2010 Worldwide EOR/Heavy Oil survey. However, the data that are made public through both of these sources differ in fundamental ways from the reporting that EPA is requiring under Subpart RR. The databases to which EPA refers do not include data on produced CO2. Similarly, there is no information on either produced CO2 quantities or characteristics in the 2010 EOR Survey. The fact that spine data from EOR wells is publicly available in no way demonstrates that publication of other, different data would not cause competitive harm.
Occidental strongly disagrees with EPA's assertion that release of this data would not "provide additional insights into any aspect of operations." To the contrary, release of CO2 production data provides a new type of data that when combined with other data already public, would enable CO2 suppliers and other oil and gas producers to gain competitive advantages. CO2 is an essential commodity in ER projects, and because of its cost, companies go to great lengths to use it efficiently and to recycle as much of it as possible. Publication of produced CO2 data, when coupled with publicly available information on oil and gas production by well, would enable competitors to calculate CO2 utilization rates for both individual wells and fields. Because this data would be available annually, it would be possible to track CO2 utilization overtime. From these CO2 utilization rates, competitors would gain insight into production costs, as well as information on how the reservoir was performing over time. This information could be used in contract negotiations for CO2 supply, as well as enabling competitors to fine tune investment, acquisition and development strategies.
In addition, if data on the quantities of both injected CO2 and produced CO2 are publicly available, it is a simple matter to determine the quantity of CO2 received by a site, which Occidental believes must be protected as CBI for reasons provided in the previous section. This is because the total quantity of CO2 injected equals the amount of CO2 received on site plus the amount of CO2 produced, less any surface emissions (which will be made public under Subpart RR because they are "emission data"). As explained in the previous section, the quantity of CO2 received on site is not currently publicly available, and should not be publicly available in the future because serious competitive harm would occur. Not only would the release of produced CO2 data cause additional types of competitive harm, but such release would render the decision to protect received CO2 quantities as CBI ineffective and meaningless.
For these reasons, Occidental urges EPA to change its determination regarding the data elements related to the quantity of CO2 produced, and to find that these data elements are entitled to CBI protection. The relevant data elements are listed below.
Table 3: "CO2 Produced" Data Elements that should be CBI in the final rule.
                                 Data Element
                             Regulatory Reference
If the date specified in 40 CFR 98.446(e) is during the reporting year for this annual report, report the following starting on the date specified in 40 CFR 98.446(e): For each separator flow meter (mass or volumetric), report CO2 mass produced annually
                                98.446(f)(4)(i)
If the date specified in 40 CFR 98.446(e) is during the reporting year for this annual report, report the following starting on the date specified in 40 CFR 98.446(e): For each separator flow meter (mass or volumetric), report CO2 concentration in flow in each quarter, for each separator flow meter.
                               98.446(f)(4)(ii)
If the date specified in 40 CFR 98.446(e) is during the reporting year for this annual report, report the following starting on the date specified in 40 CFR 98.446(e): Volumetric/mass flow rate in each quarter.
                           98.446(f)(4)(iii)- volume
                            98.446(f)(4)(iv)- mass

Response: For the response to this comment regarding the confidentiality of certain subpart RR data elements related to the quantity of CO2 produced, please see Section II of the preamble to the final rule.
Commenter Name:  William A. Collins, Jr., Senior Director of Regulatory Affairs
Commenter Affiliation:  Occidental Petroleum Corporation
Document Control Number:  EPA-HQ-OAR-2011-0028-0021
Comment Excerpt Number:  1
Comment: Quantity of CO2 Received (Subparts RR & UU) 
Occidental believes that all of the data elements related to the quantity of CO2 received on-site must be protected as CBI. First, information on the quantity of CO2 received at individual flow meters or aggregated for the reporting ER facility is not publicly available. This fact is tacitly acknowledged by EPA in its proposal, where the Agency did not claim or assert the public availability of this type of data. In fact, only the data elements related to CO2 injection amounts were identified by EPA as already publicly available through state and Federal UIC permits. CO2 injection is not the same as CO2 received, and the quantity of CO2 received cannot be determined from CO2 injection volumes unless the quantity of CO2 produced is also known.
EPA justifies its proposed determination that the quantity of CO2 received is not CBI as follows, at 77 FR 1447:
None of the data elements on CO2 received includes information on CO2 prices or contract terms, such as information on the concentration of other incidental substances in the CO2 stream, the disclosure of which could allow competitors to ascertain the relative strength of their market position and to identify sources of competitive advantage (or disadvantage) among competitors. The data elements also do not include information that would allow a competitor to deduce the reporter's operating costs. 
Occidental disagrees with EPA's conclusion that public release of the quantity of CO2 received does not create a substantial competitive disadvantage for the company. Information on the quantity of CO2 received (i.e., purchased) does constitute a contract term and is directly correlated to CO2 demand. The price for CO2, including the price for delivery to a certain point, is negotiated between producers, purchasers and transporters. The price, in its most simple terms, is a function of supply and demand. Producers offering CO2 for sale can and do set prices based on CO2 demand. CO2 demand can be estimated and, in many cases directly determined, from past CO2 usage. Combined with publicly available information on CO2 pipeline capacities, CO2 producers and pipeline transportation companies could use data on the quantity of CO2 received as reported by specific facilities to their advantage in price negotiations on future contracts and to the disadvantage of the CO2 purchasers (i.e., the reporting facilities under Subparts RR and UU). This risk is amplified because there are so few suppliers in the CO2 market.
Currently, even where information on individual well injection data may be available, CO2 producers do not have data on a company's demand for CO2. This is due to the fact that individual well injection data may include recycled CO2, CO2 from a company's inventory, CO2 that a company may produce itself and CO2 purchased from third parties. Unless data related to the quantity of CO2 received is maintained as strictly confidential, producers will be able to ascertain each purchaser's CO2 demand and set prices accordingly. The CO2 market is dominated by two producers, already severely impacting purchasers' negotiating leverage. If data on the mass of CO2 received by each facility and company is made publicly available, purchasers will lose what little negotiating leverage remains.
If EPA does not reverse its proposal, publishing data on amounts of received CO2 will likely lead to higher CO2 prices and higher costs for companies that rely on purchased CO2 for ER. The price of CO2 is one component of operating costs that is a factor in the market price of crude oil.
Moreover, a decision by EPA to treat the quantity of CO2 received as CBI will not adversely affect the public because the usefulness of this data to the public is limited. The quantity of CO2 received is not emissions data. The mass-balance equations (RR-11 and RR-12) in Subpart RR do not include a term for the amount of CO2 received, because this information is not required to calculate emissions from ER projects engaged in long-term geologic storage. Under the circumstances, there is little reason for EPA to risk harming the competitive positions of companies by publishing data that is not central to the emission calculation being undertaken in the rule.
In the case of Subpart UU, CBI protection of data on the quantity of CO2 received is similarly justified. In its initial proposal on this rule (at that time, Subpart RR "Tier 1"), EPA proposed collecting data on CO2 injection. It received many comments, with some commenters opposing collection of any data, others supporting collection of CO2 received, and still others supporting an expansion of the "Tier 1" requirements to essentially mirror the approach taken in Subpart RR. In the final rule, EPA settled on the reporting of received CO2, saying at 75 FR 75070: 
EPA has concluded that data on CO2 received is critical for EPA to better understand the disposition of CO2 supply reported under 40 CFR part 98, subpart PP. Furthermore, EPA recognizes that the geology of an oil and gas reservoir can create a barrier to trap CO2 underground and that many projects in the ER industry could successfully verify and report geologic sequestration of CO2 with an EPA-approved MRV plan. By collecting data received at these facilities, EPA will better understand the scope and size of a potentially non-emissive end- use. 
At the same time, EPA explicitly declined to use the mass-balance approach in Subpart UU because ER facilities reporting under this subpart are not required to develop EPA-approved MRV plans as under Subpart RR. As they explained at 75 FR 75070: 
Though the collection of either a partial or full set of data from 40 CFR part 98, subpart UU facilities would have given EPA additional information regarding ER operations, it could have also caused confusion among reporters and the public about which facilities are estimating and reporting geologic sequestration. By requiring mass balance inputs from CS projects only, and by splitting the proposed rule into two subparts, EPA is making clear in this action that the quantity of CO2 geologically sequestered can only be verified and reported to EPA by developing and implementing an EPA-approved MRV plan and reporting under 40 CFR part 98, subpart RR. 
Occidental believes that EPA can accomplish its objective of understanding the ultimate fate of CO2 supply quantities reported under Subpart PP without publishing data on the amount of CO2 received at individual sites. Moreover, for reporters under Subpart UU, publishing the amount of CO2 received invites exactly the situation that EPA stated it wants to avoid in the final rule: confusion among the public about which facilities are estimating and reporting geologic sequestration.
Occidental has been conducting ER operations for 35 years, and has protected information on the quantities of CO2 received at their facilities during this entire period because of the proprietary nature of the information and the risk of significant harm to the company's ability to obtain CO2 at fair prices. Furthermore, as EPA has previously noted, release of data on CO2 received does not provide useful information to the public and may in fact lead to confusion. For all of these reasons, EPA should change its proposed determination and treat all data elements related to the quantity of received CO2 as CBI under both Subparts RR and UU. This action is necessary to avoid the risk of significant harm to reporters under these subparts, and potentially energy markets and consumers.
Table 1: Data Elements on "CO2 Received" That Require CBI Protection  -  Subpart RR 
                                 Data Element
                             Regulatory Reference
If you receive CO2 by pipeline, report the following for each receiving flow meter: Total net mass of CO2 received annually
98.446(a)(1)
If you receive CO2 in containers: Net mass of CO2 received annually 
98.446(b)(4)
If you use more than one receiving flow meter, report the net mass of total CO2 received (metric tons) through all flow meters annually
98.446(c)
If a volumetric/mass flow meter is used to receive CO2, report the following unless you reported yes to 40 CFR 98.446(a)(4): Volumetric/mass flow through the receiving flow meter each quarter 
98.446(a)(2)(i) 
98.446(a)(3)(i)
If a volumetric/mass flow meter is used to receive CO2, report the following unless you reported yes to 40 CER 98.446(a)(4): Volumetric/mass flow through the meter that is redelivered to another facility without being injected into your well each quarter
98.446(a)(2)(ii) 
98.446(a)(3)(ii)
If a volumetric/mass flow meter is used to receive CO2, report the following unless you reported yes to 40 CFR 98.446(a)(4): CO2 concentration in the flow each quarter
98.446(a)(2)(iii) 
98.446(a)(3)(iii)
If you receive CO2 in containers, report: The mass or volume of contents in containers each quarter
98.446(b)(1) 
If you receive CO2 in containers, report: The concentration of CO2 of contents of containers in each quarter
98.446(b)(2) 
If you receive CO2 in containers, report: The mass or volume of contents in containers that is redelivered to another facility without being injected in your well in each quarter
98.446(b)(3)
Response: For the response to this comment regarding the confidentiality of these subpart RR data elements revealing the quantity of CO2 received, please see Section II of the preamble to the final rule. 
Subparts UU Comments and Responses
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CBI Determination for GHGs Reported and Production/Throughput Data Elements  -  Subpart RR and UU
Commenter Name:  William A. Collins, Jr., Senior Director of Regulatory Affairs
Commenter Affiliation:  Occidental Petroleum Corporation
Document Control Number:  EPA-HQ-OAR-2011-0028-0021
Comment Excerpt Number:  1
Comment: Quantity of CO2 Received (Subparts RR & UU) 
Occidental believes that all of the data elements related to the quantity of CO2 received on-site must be protected as CBI. First, information on the quantity of CO2 received at individual flow meters or aggregated for the reporting ER facility is not publicly available. This fact is tacitly acknowledged by EPA in its proposal, where the Agency did not claim or assert the public availability of this type of data. In fact, only the data elements related to CO2 injection amounts were identified by EPA as already publicly available through state and Federal UIC permits. CO2 injection is not the same as CO2 received, and the quantity of CO2 received cannot be determined from CO2 injection volumes unless the quantity of CO2 produced is also known.
EPA justifies its proposed determination that the quantity of CO2 received is not CBI as follows, at 77 FR 1447:
None of the data elements on CO2 received includes information on CO2 prices or contract terms, such as information on the concentration of other incidental substances in the CO2 stream, the disclosure of which could allow competitors to ascertain the relative strength of their market position and to identify sources of competitive advantage (or disadvantage) among competitors. The data elements also do not include information that would allow a competitor to deduce the reporter's operating costs. 
Occidental disagrees with EPA's conclusion that public release of the quantity of CO2 received does not create a substantial competitive disadvantage for the company. Information on the quantity of CO2 received (i.e., purchased) does constitute a contract term and is directly correlated to CO2 demand. The price for CO2, including the price for delivery to a certain point, is negotiated between producers, purchasers and transporters. The price, in its most simple terms, is a function of supply and demand. Producers offering CO2 for sale can and do set prices based on CO2 demand. CO2 demand can be estimated and, in many cases directly determined, from past CO2 usage. Combined with publicly available information on CO2 pipeline capacities, CO2 producers and pipeline transportation companies could use data on the quantity of CO2 received as reported by specific facilities to their advantage in price negotiations on future contracts and to the disadvantage of the CO2 purchasers (i.e., the reporting facilities under Subparts RR and UU). This risk is amplified because there are so few suppliers in the CO2 market.
Currently, even where information on individual well injection data may be available, CO2 producers do not have data on a company's demand for CO2. This is due to the fact that individual well injection data may include recycled CO2, CO2 from a company's inventory, CO2 that a company may produce itself and CO2 purchased from third parties. Unless data related to the quantity of CO2 received is maintained as strictly confidential, producers will be able to ascertain each purchaser's CO2 demand and set prices accordingly. The CO2 market is dominated by two producers, already severely impacting purchasers' negotiating leverage. If data on the mass of CO2 received by each facility and company is made publicly available, purchasers will lose what little negotiating leverage remains.
If EPA does not reverse its proposal, publishing data on amounts of received CO2 will likely lead to higher CO2 prices and higher costs for companies that rely on purchased CO2 for ER. The price of CO2 is one component of operating costs that is a factor in the market price of crude oil.
Moreover, a decision by EPA to treat the quantity of CO2 received as CBI will not adversely affect the public because the usefulness of this data to the public is limited. The quantity of CO2 received is not emissions data. The mass-balance equations (RR-11 and RR-12) in Subpart RR do not include a term for the amount of CO2 received, because this information is not required to calculate emissions from ER projects engaged in long-term geologic storage. Under the circumstances, there is little reason for EPA to risk harming the competitive positions of companies by publishing data that is not central to the emission calculation being undertaken in the rule.
In the case of Subpart UU, CBI protection of data on the quantity of CO2 received is similarly justified. In its initial proposal on this rule (at that time, Subpart RR "Tier 1"), EPA proposed collecting data on CO2 injection. It received many comments, with some commenters opposing collection of any data, others supporting collection of CO2 received, and still others supporting an expansion of the "Tier 1" requirements to essentially mirror the approach taken in Subpart RR. In the final rule, EPA settled on the reporting of received CO2, saying at 75 FR 75070: 
EPA has concluded that data on CO2 received is critical for EPA to better understand the disposition of CO2 supply reported under 40 CFR part 98, subpart PP. Furthermore, EPA recognizes that the geology of an oil and gas reservoir can create a barrier to trap CO2 underground and that many projects in the ER industry could successfully verify and report geologic sequestration of CO2 with an EPA-approved MRV plan. By collecting data received at these facilities, EPA will better understand the scope and size of a potentially non-emissive end- use. 
At the same time, EPA explicitly declined to use the mass-balance approach in Subpart UU because ER facilities reporting under this subpart are not required to develop EPA-approved MRV plans as under Subpart RR. As they explained at 75 FR 75070: 
Though the collection of either a partial or full set of data from 40 CFR part 98, subpart UU facilities would have given EPA additional information regarding ER operations, it could have also caused confusion among reporters and the public about which facilities are estimating and reporting geologic sequestration. By requiring mass balance inputs from CS projects only, and by splitting the proposed rule into two subparts, EPA is making clear in this action that the quantity of CO2 geologically sequestered can only be verified and reported to EPA by developing and implementing an EPA-approved MRV plan and reporting under 40 CFR part 98, subpart RR. 
Occidental believes that EPA can accomplish its objective of understanding the ultimate fate of CO2 supply quantities reported under Subpart PP without publishing data on the amount of CO2 received at individual sites. Moreover, for reporters under Subpart UU, publishing the amount of CO2 received invites exactly the situation that EPA stated it wants to avoid in the final rule: confusion among the public about which facilities are estimating and reporting geologic sequestration.
Occidental has been conducting ER operations for 35 years, and has protected information on the quantities of CO2 received at their facilities during this entire period because of the proprietary nature of the information and the risk of significant harm to the company's ability to obtain CO2 at fair prices. Furthermore, as EPA has previously noted, release of data on CO2 received does not provide useful information to the public and may in fact lead to confusion. For all of these reasons, EPA should change its proposed determination and treat all data elements related to the quantity of received CO2 as CBI under both Subparts RR and UU. This action is necessary to avoid the risk of significant harm to reporters under these subparts, and potentially energy markets and consumers.
Table 2: Data Elements on "CO2 Received" That Require CBI Protection  -  Subpart UU 
                                 Data Element
                             Regulatory Reference
If you receive CO2 by pipeline, report the following for each receiving flow meter: Total net mass of CO2 received annually
98.446(a)(1)
If you receive CO2 in containers: Net mass of CO2 received annually 
98.446(b)(4)
If you use more than one receiving flow meter, report the net mass of total CO2 received (metric tons) through all flow meters annually
98.446(c)
If a volumetric/mass flow meter is used to receive CO2, report the following unless you reported yes to 40 CFR 98.446(a)(4): Volumetric/mass flow through the receiving flow meter each quarter 
98.446(a)(2)(i) 
98.446(a)(3)(i)
If a volumetric/mass flow meter is used to receive CO2, report the following unless you reported yes to 40 CER 98.446(a)(4): Volumetric/mass flow through the meter that is redelivered to another facility without being injected into your well each quarter
98.446(a)(2)(ii) 
98.446(a)(3)(ii)
If a volumetric/mass flow meter is used to receive CO2, report the following unless you reported yes to 40 CFR 98.446(a)(4): CO2 concentration in the flow each quarter
98.446(a)(2)(iii) 
98.446(a)(3)(iii)
If you receive CO2 in containers, report: The mass or volume of contents in containers each quarter
98.446(b)(1) 
If you receive CO2 in containers, report: The concentration of CO2 of contents of containers in each quarter
98.446(b)(2) 
If you receive CO2 in containers, report: The mass or volume of contents in containers that is redelivered to another facility without being injected in your well in each quarter
98.446(b)(3)

Response: For the response to this comment regarding the confidentiality of these subpart UU data elements revealing the quantity of CO2 received, please see Section II of the preamble to the final rule. 




APPENDIX A: LIST OF COMMENTS ON RECIPE-SPECIFIC DATA ELEMENTS REPORTED PURSUANT TO 40 CFR PART 98, SUBPART I 
In this appendix, we provide a list of public comments we received regarding the confidentiality determinations for recipe-specific data elements and one data element related to the annual manufacturing capacity in subpart I (see 77 FR 10434, January 22, 2012). As discussed in Section II.B.2 of the preamble to the Final 2012 CBI Rule, we are not issuing confidentiality determinations for recipe-specific data reporting elements or for the annual manufacturing capacity in the final rule. Accordingly, we are not addressing comments on these data elements in this document. For the response to any comment related to subpart I that is not related to these data elements, please see the appropriate section of this document. The following comments have been submitted by two commenters. We have listed the commenter, affiliation, and document control number once at the beginning of each commenter's set of comments and have listed each distinct comment under a separate excerpt number.
Commenter Name:  Julia A. Hatcher, Latham & Watkins LLP
Commenter Affiliation:  Semiconductor Industry Associations (SIA)
Document Control Number:  EPA-HQ-OAR-2011-0028-0023
Comment Excerpt Number:  3
Comment: SIA has been discussing two solutions with EPA that would minimize CBI issues: to develop GHG emissions estimates (1) through stack testing or (2) through the reporting of the total gas usage and/or CO2e emissions at the 5 Tier 2c process category levels (or at the modified Tier2c 4 process category levels that SIA has been discussing with EPA). [Footnote: SIA has been discussing combining the etch and wafer clean categories from the Tier 2c methodology into a single category.] Doing so would cumulate data and not reveal details that can be "mined" to expose intellectual property and trade secrets.
Comment Excerpt Number:  4
Comment: One data element from Table 3 (i.e., "identification of the quantifiable metric used in your facility-specific engineering model to apportion gas consumption (may not be reported in 2011, 2012 and 2013)"), if made public, would reveal detailed modeling numbers and/or other apportioning indicators, and thereby would provide information on gas use allocation, process or recipe type apportioning, etc. that can be used to ascertain intellectual property and trade secrets.
Comment Excerpt Number:  5
Comment: In particular, the 2 data elements in Table 4 (i.e., "film or substrate that was etched/cleaned and the feature type that was etched" and "certification that the recipes included in a set of similar recipes are similar"), if made public, would provide important information about the recipe and process type, which when combined with the gas use data discussed above, would further enhance a competitor's ability to ascertain the details of a recipe that clearly constitute intellectual property and trade secrets.
Comment Excerpt Number:  6
Comment: In addition, EPA has proposed that data element #1 in Table 4  -  i.e., "annual manufacturing capacity of a facility as determined in Equation I-5" [40 CFR 98.96(a)]-- be deemed CBI ineligible. EPA justifies this proposal on the premise that "[t]his information is already publicly available through the World Fab Forecast". 77 Fed. Reg. 10442. EPA's premise, however, is flawed.
The Subpart I maximum capacity calculation pursuant to Equation I-5 will likely generate a different capacity than reported by the World Fab forecast. Such differences may prove instructive to competitors and industry watchers. To render a maximum capacity calculation non-CBI, Subpart I would need to be amended to eliminate the Equation I-5 calculation and to require a company to report the maximum manufacturing capacity published by the "World Fab Forecast" or a comparable publicly available capacity estimate.
Comment Excerpt Number:  9
Comment: The Proposed Rule would not make a CBI eligibility determination for one data element in Table 3 (i.e., "identification of the quantifiable metric used in your facility-specific engineering model to apportion gas consumption (may not be reported in 2011, 2012 and 2013)"). As explained in Section II.B.1. above, SIA believes that the rationale for not making a determination for these elements applies equally across all Subpart I data elements and that EPA should not proceed with this rulemaking.
Comment Excerpt Number:  10
Comment: The Proposed Rule would not make a CBI eligibility determination for two data elements in Table 4 (i.e., "film or substrate that was etched/cleaned and the feature type that was etched" and "certification that the recipes included in a set of similar recipes are similar"). As explained in Section II.B.1. above, SIA believes that the rationale for not making a determination for these elements applies equally across all Subpart I data elements and that EPA should not proceed with this rulemaking.
Commenter Name:  Jay M. Dietrich, CEA Program Manager: Climate Stewardship, Senior Technical Staff Member
Commenter Affiliation:  IBM
Document Control Number:  EPA-HQ-OAR-2011-0028-0024
Comment Excerpt Number:  3
Comment: IBM submits that the best alternative to meet EPA's goals and protect industry's trade secrets is to report the total gas use and/or CO2e emissions at the 5 process category levels under the EPA Tier 2c methodology or the 4 proposed process categories (SIA has proposed that the etch and wafer clean categories from the Tier 2c categories be combined into a single category). Such process category reporting cumulates the data and eliminates the detail that can reveal trade secrets and valuable IP. It is essential that these three data elements not be subject to disclosure nor used in any way that undermines intellectual property and trade secrets.
Comment Excerpt Number:  4
Comment: EPA itself acknowledges the importance of this data in the preamble or the proposed rule, stating: "The conditions under which the individual steps are performed, the ability of a facility to produce certain electronic features, and the ability of a facility to produce a certain number of devices with a minimum number of defects at a certain cost per unit, among other variables, affect the overall efficiency of the manufacturing process, and thus contribute to the business's profitability. These processes, therefore, are a factor in the competitive standing of a particular facility in this industry." (77 Fed. Reg. 10439). Based on the above explanation on the three data elements which reveal gas use information, allowing additional data elements should be similarly protected, not subject to disclosure and not used in any way that undermines intellectual property and trade secrets:
Table 4, Unclassified Data Elements 3 and 4 [40 CFR 98.96(f)(2) and (f)(3)]: These data elements provide important information about the recipe and process type, which when combined with the gas use data is highly likely to reveal valuable IP and trade secrets.
Comment Excerpt Number:  5
Comment: Information on actual annual production, coupled with information on the monthly designed substrate starts constitutes sensitive business information which could reveal competitive intelligence on the particular product mix being manufactured at a particular facility and should be treated as CBI. However, the CBI proposal published in the referenced Federal Register fails to take into account the sensitivity of specific manufacturing capacity calculations which should be deemed CBI.
EPA is proposing that the Table 4, Data Element 1, Annual manufacturing capacity of a facility as determined in Equation I-5, not be deemed confidential. EPA provides a rationale that this data is available publically through the World Fab Forecast. (FR Vol 77 No. 35 page 10442.) IBM strongly disagrees with this rationale. The calculation of the maximum capacity, based on the requirements or Subpart I, is likely to generate a different capacity than that reported by the World Fab forecast. These differences can be very instructive to competitors and industry watchers. IBM suggests that there are two alternative approaches that would meet EPA's needs while adequately protecting industry:
1. Non-CBI Manufacturing Capacity -- To the extent that EPA wants manufacturing capacity to be non-CBl, it should modify the regulation to (a) eliminate the calculation required by Equation 1-5 and (b) specifically require companies to use the maximum manufacturing capacity published by the "World Fab Forecast" or a comparable publicly available capacity estimate.
2. CBI Manufacturing Capacity -- To the extent that EPA wants manufacturing capacity to be determined using the more nuanced calculation required by Equation I-5, then manufacturing capacity should be CBI.
As further justification for making this Data Element confidential, EPA has stated in another section of the rulemaking that the data element "Annual production in terms of substrate surface area" (98.96(e)) is CBI. Annual production is merely the wafer throughput times the wafer area based on the published wafer size of the facility. When facilities are operating at full production, as a fab's capacity utilization is typically estimated or ascertained by industry watchers, then you would be able to determine maximum capacity. As maximum capacity provides similar information to production level, it should be CBI.

APPENDIX B: LIST OF COMMENTS FOR 40 CFR PART 98, SUBPART L
In this appendix, we provide a list of public comments we received regarding the confidentiality determinations for data elements in subpart L (see 77 FR 1434, January 10, 2012). For the reasons noted in the preamble, EPA is not finalizing confidentiality determinations for subpart L data elements in the 2012 Final CBI Rule. Thus, we are not including responses to these subpart L comments in this document. 
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CBI Determination for Unit/Process Static Data Elements  -  Subpart L
Commenter Name:  Jeffrey C. Muffat, Manager of Environmental Regulatory Affairs
Commenter Affiliation:  3M Company
Document Control Number:  EPA-HQ-OAR-2011-0028-0018
Comment Excerpt Number:  8
Comment: 3M supports EPA's proposed determination of CBI status for the Subpart L data element "location and function of the stream(s) (including process streams, emission streams, and destroyed streams)." This element is analyzed under the initial scoping speciation of fluorinated greenhouse gases pursuant to 40 CFR 98.124(a). 3M agrees with EPA's analysis as to why this element is CBI. In its cogent analysis at 77 FR 1442, EPA shows that it understands why releasing this information to the public could create "substantial competitive harm" to 3M and others covered by this subpart: 
"EPA finds that this data element could provide insight into the manufacturing process and the configuration of the facility, such as which process equipment is sending streams to which process equipment. This could reveal information about configuration efficiencies that the reporter has developed, generally at great expense and time investment, to minimize manufacturing cost and to maximize the manufacturing rate. If a competitor could review such information on configuration, the competitor would be able to adopt the reporter's efficiency practices with less development time and expense and would gain competitive advantage at the expense of the reporter's competitive advantage. Therefore, EPA finds that releasing the data element describing the location and function of the process streams would likely result in substantial competitive harm, and EPA proposes to determine that this data element qualifies for protection as confidential business information." 
Comment Excerpt Number:  9
Comment: . . . 3M supports EPA's analysis of its proposed determinations at 77 FR 1442 that seven of the 22 data elements included in Best Available Monitoring Method (BAMM) use extension requests are CBI because they would implicate trade secret and confidential business information. 3M supports EPA's recognition that this type of information could give a reporter's competitors information on configuration or operational efficiencies, or potential shutdowns and decreases in product supply, all of which could give competitors advantages at the expenses of the reporter. 
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General Confidentiality Claims  -  Subpart L
Commenter Name:  Jeffrey C. Muffat, Manager of Environmental Regulatory Affairs
Commenter Affiliation:  3M Company
Document Control Number:  EPA-HQ-OAR-2011-0028-0018
Comment Excerpt Number:  3
Comment: 3M proposes as an alternative that EPA allow reporting of fluorinated greenhouse gases for certain Subpart L facilities on a combined basis for the facility as a whole, in CO2 equivalents. This accomplishes the purposes of the law: reporting of greenhouse gas emissions over certain thresholds. It is consistent with the intent of the Clean Air Act to require disclosure of emission data only "as necessary" to show emissions. It is also consistent with similar reporting rules, the Toxic Release Inventory and California's Greenhouse Gas reporting rule. This reporting as a whole would avoid trade secret and export control concerns. 
Comment Excerpt Number:  6
Comment: As noted in the American Chemistry Council's (ACC) September 7, 2010 comments on EPA's initial proposed CBI rule, which included comments on Subpart L, information that EPA is requiring to be disclosed under the MRR includes information that is controlled for export by various United States agencies for reasons including, but not limited, to, national security. In addition, in the ACC's March 7, 2011 comments on confidentiality concerns regarding inputs to emission equations, ACC again noted concerns that EPA is requesting export-controlled information, and specifically mentioned that this is a concern for information EPA is demanding under Subpart L. 3M is a member company of the ACC and contributed to those comments. 
In EPA's proposed rule for Subpart L, EPA has not addressed these concerns regarding export-controlled information or proposed ways in which EPA will manage the information to avoid export control concerns. Because of requirements under the United States export control laws, 3M cannot submit information to EPA that is export controlled, without advance assurances in writing as to how this information will be managed in accordance with export control laws. In specific, 3M cannot submit information that EPA has requested companies submit in just a few weeks (by March 31 2012) because 3M does not know who will be receiving this information at EPA or that it will be safeguarded. 3M is being placed in the extremely difficult position of being required to submit information by one federal agency that another federal agency prohibits 3M from submitting. 
3M therefore asks for an extension on all reporting deadlines under Subpart L of MRR until the export control issues as well as CBI issues are resolved. 
Information required to be disclosed under the MRR includes information that is controlled for export by various United States agencies for reasons including, but not limited to, national security, anti-terrorism, nuclear non-proliferation, and chemical and biological weapons security. Once the EPA receives this information, it will become responsible to ensure that it controls this information in compliance with all United States export control regulations.
The Export Administration Regulations (EAR), managed by the United States Commerce Department and the International Traffic in Arms Regulations (ITAR), managed by the United States Department of State, are the two principal United States export control regimes. ITAR, applicable to those products and technical data that are specifically designed or modified for military use and are on the Munitions List, prohibits virtually all exports to every country without export authorization by the State Department, following review by the Departments of State and Commerce. The EAR controls products, intermediate materials, raw materials components and accessories, technology, software and manufacturing that meet very detailed specifications delineated in the EAR.
ITAR defines "technical data" as "information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of `defense articles'." Similarly, the EAR prohibits the export of controlled "development", "production" and/or "use" technology:
Development : "is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts."
Production: "means all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, quality assurance."
Use: means "operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing."
For example, under EAR ECCN 1E001 alone - the EAR prohibits the export of development and production technology for a wide number of products and intermediate materials that are EAR-controlled, including:
   * components made from fluorinated compounds
   * composite structures or laminates made from certain organic, metal or carbon matrices,
   * carbon filamentary materials, certain non-aromatic polymides in film, sheet, tape or ribbon form
   * gas mask filter canisters and decontamination equipment for defense against biological agents, radiological agents, chemical warfare agents or riot control agents
   * body armor
   * equipment and devices designed to initiate charges
   * devices containing energetic materials.
This technology is expressly controlled for export due to national security, nuclear non-proliferation, anti-terrorism, missile technology, and other risks.
The prohibitions against exports include not only physical exports of product or technology, but also "deemed exports", (the sharing within the United States of controlled technology to those who are not United States citizens or permanent residents, refugees or asylees of the United States and possess citizenship of countries to which the technical data is controlled).
While it is possible to publish and make "publicly available" EAR-controlled technology without violating the EAR, to release to the public ITAR controlled technology requires the prior written approval of the cognizant government agency. In other words, to require the public release of ITAR controlled technology, the EPA or the company would likely first need to obtain the approval of the cognizant agency, which could vary depending on the information in question. See 22 CFR 120.11(a)(7) (definition of public domain) and http://www.aia-aerospace.org/assets/security_handbook_07.pdf (handbook explaining the process to get approval for public release of ITAR controlled technology).
In consideration of United States export control regulations, 3M scientists have evaluated the level and detail of process-specific emissions information currently required by this Subpart L proposal, and have advised that providing such emission information would include the disclosure of controlled production technology and possibly, technical data to the EPA, i.e., technical data related to perfluorochemical manufacturing. This information includes information that EPA is proposing to hold as CBI under Subpart L as well as information that is not designated by EPA as CBI because EPA has labeled it "emission data."
In response, to remain in compliance with United States export control regulations, EPA personnel would need either to request authorization to publicly release such information or to implement an export control plan to ensure compliance with all United States export control regulations. It would need to ensure that it can identify and segregate such information on United States based servers with restrictions on sharing internally and externally with anyone to whom the technology would be controlled. It would also need to put in place controls to protect against unauthorized disclosure by employees and others at the EPA. This would be a difficult and detailed process to implement and maintain in general - compounded by the fact that the EPA will not necessarily be in possession of the additional scientific information to enable it to evaluate which data it possesses that triggers the export control requirements.
EPA has proposed categorizing a substantial amount of process-related information under Subpart L as non-CBI because EPA believes it is "emission data" and therefore available to the public. If EPA pursues the approach of implementing an export control plan to protect against unauthorized disclosure of export controlled process-related information to the public, EPA would need to reconcile this control or non-disclosure with its standard position to the contrary, that emission data should be available to the public. 
 . . .if EPA decides not to pursue the export control plan and requests and obtains authorization to publicly release export controlled data (which seems unlikely due to the nature of this information), 3M would still consider this information trade secret and CBI, and would object to release of that information as not within EPA's authorization under the law.
An EPA process to manage this information is made even more complicated by the fact that the information EPA requires 3M to report under Subpart L must be submitted as early as March 31, 2012 (effective April 2, 2012 due to the weekend), only a little over two weeks after the deadline for these comments. In addition, subsequent reporting under Subpart L must be submitted electronically in EPA's e-GGRT database. 3M has been advised by its legal counsel that posting any export controlled technical data on any site that does not have controls to prohibit viewing by those from whom the technical data should be controlled would be a violation of export laws by 3M.
Accordingly, 3M cannot submit the export-controlled information at this point (whether EPA has preliminarily determined it CBI or not). Moreover, under the proposed rule, 3M is concerned that some of this process-specific information that is export-controlled will be made available to the public as emission data, because EPA has proposed to categorize it as "emission data."
We have been advised that 3M not post such information, but identify that we have it, that it is export controlled, and that 3M desires to discuss with the EPA how to provide the required information in a manner that ensures that (a) it is being provided to someone at EPA who can accept it without 3M obtaining a license, (b) it is clearly marked as export controlled, and (c) we provide it in a format/manner that does not constitute a violation (e.g. not put it on an open server). 3M asks for an extension of the deadline for submission of information under Subpart L until these export control issues and CBI issues can be resolved in a manner consistent with other Subparts, including OO and I, and in a manner consistent with EPA's authorization. 
As requested previously in ACC comments, to mitigate risk to the United States and to avoid export control issues for Subpart L facilities as well as for EPA, such detailed process-specific emissions information should not be required under the MRR. One solution would be for EPA to instead report facility-wide information in CO2 equivalents in the same manner that it is being reported for Subpart OO. To the extent that any process-specific emissions information is required, any controlled technology information should be determined to be CBI for FOIA purposes, and EPA should also implement whatever additional restrictions are necessary to comply with export control regulations. EPA should assure that its practices for handling CBI are consistent with those practices utilized by the Department of Commerce for material and technologies/processes that are export controlled. 
Comment Excerpt Number:  11
Comment: A fundamental problem with EPA's CBI designations is that these determinations are based on the emission calculation methods and not on whether the information is actually business confidential. In certain cases significant amounts of information would become publicly available and for similar processes elsewhere much less information would be made available to outside parties. For example, under Subpart L, if a facility utilizes the mass balance method, which is the approach under Section 98.126(b), much of the information regarding process inputs and outputs would be made publicly available. All of this information may be routinely protected by state agencies when contained in permit or emissions reporting documents, however. For some processes, the information reported under §98.126(b) may be much more detailed than what would be required under §98.126(c) (the emission factor approach). Another example that was previously cited is the scoping analysis required under §98.126(c)(3). If process streams are used for this determination, the information is considered CBI; if vent gases are used for the scoping analysis EPA does not consider the information CBI. In the case of fugitive emissions, some processes will allow for the consolidation of emissions over a large process while emissions in other cases will be reflective of very specific chemistries and processes. 
Comment Excerpt Number:  13
Comment: More important than the inequity that may result from differences in the emissions calculation methods is the fact that 3M as a United States supplier and manufacturer would be placed at a competitive disadvantage with foreign manufacturers and suppliers. ACC member companies have reviewed CBI practices at non-United States locations. Much more information will be reported under the MRR rule than is customarily reported at non-United States locations. In addition, the CBI practices at foreign locations are much more protective of process information than what is being proposed under the MRR. In almost all cases, government agencies outside the United States limit the information requested so it does not implicate trade secret information. 
On Tuesday, February 29, 2012, President Obama signed an executive order creating the Interagency Trade Enforcement Center. The White House said the order "will institute a more aggressive 'whole-of-government' approach to getting tough on trade enforcement by monitoring and enforcing US rights under international and domestic trade rules and countering unfair subsidies that tilt the global market against US firms." As reported by the Associated Press (AP), the office will expand the administration's ability to challenge unfair trading practices in China and elsewhere." AP noted: The President "has accused China of subsidizing homegrown companies and allowing counterfeiting and intellectual piracy. The president's most recent budget proposal asks Congress for millions of dollars for the new enforcement center and more US inspectors in China." 
3M is aware that manufacturers outside the United States would welcome information on 3M's trade secret manufacturing processes at facilities subject to Subpart L. EPA should not be adopting rules that have the effect of promoting intellectual piracy in China or other countries, at the same time as the Administration is recognizing the real threat of piracy and in fact proposing millions of dollars in enforcement money to counter it. 
By taking an unnecessarily broad interpretation of "emission data" as including process-specific emission information for purposes of the greenhouse gas emission reporting rules, EPA will be forcing public disclosure of sensitive business information that includes company trade secret information. 
It is important to understand this issue from an intellectual property law and research and development perspective. Trade secret information is developed through company research and development. Companies spend years and years, and millions, and even billions, of dollars for R&D in developing and continually improving valuable product and process information. As an example, in 2009 3M invested $1.293 billion in R&D and related expenditures. 3M invested $6.861 billion in R&D and related expenditures for the past five years. 
Sensitive R&D information is reflected in the details of a company's manufacturing and process information. This information has economic value only as long as the information remains confidential and, therefore, unavailable to competitors. This is trade secret information, a long recognized form of intellectual property in the United States and elsewhere in the world. Companies like 3M invest in R&D efforts in reliance on the protection that federal and state laws provide for their intellectual property, laws that allow them to protect their trade secrets and confidential information long enough to allow them to recoup their R&D investment and to realize the potentially significant economic rewards that are available in the commercial marketplace. This potential for economic reward provides significant commercial incentive to companies doing business in the United States. 
America's intellectual property laws have created a framework in which American companies have been encouraged to invest in research in development, to innovate and develop new technologies. Examples of this are the Silicon Valley, Microsoft, Apple, and 3M. We have seen that companies in other parts of the world later copy or reverse engineer and manufacture technologies developed here in America at a much lower cost. But because of our framework of intellectual property laws that to date have encouraged and protected R&D and innovation, many of the great ideas have started and been developed into products here in America. Arguably one of the things we have done best in this country is to create the right framework for bringing new ideas and technology to the marketplace. A significant part of that framework is the protection of intellectual property and the recognition that trade secrets and competitively sensitive information are important and valuable assets to American companies. 
EPA's proposed rule that would require disclosure of process-specific trade secret information changes this framework. Through one deliberate action, EPA could compromise multi-million dollar R&D investments by American companies. Companies throughout the world could use this information to copy the technology or processes that American companies have worked so hard and invested so much to create, without having to make that same R&D investment. It creates an unfair competitive advantage for the companies that use this information, and obviously damages the financial wherewithal and global competitiveness of the American companies that lost their valuable trade secret information. 
Instead of fostering innovation, EPA rules that force disclosure of trade secrets could discourage innovation by discouraging companies from investing in R&D here in the United States. These types of rules may cause companies to decide to locate their facilities in other parts of the world in order to protect their ideas and their R&D investments. 
EPA should adopt regulations that recognize the value of company trade secret information and safeguard that information. EPA should not be adopting regulations that force disclosure of and thereby take away valuable company trade secret information, promoting intellectual piracy by other countries and damaging the global competitiveness of American companies. 
Comment Excerpt Number:  27
Comment: 3M's facilities subject to Subpart L are involved in specialized materials manufacturing. Most other entities with facilities subject to Subpart L are manufacturing common commercial chemicals for which detailed process and chemical information is available in the public sector.
Most of 3M's manufacturing processes covered by Subpart L, however, have customized configurations and customized process characteristics. 3M has invested over $100 million and six decades in R&D to develop the unique processes at its facilities. Some of the chemicals and products manufactured by 3M at facilities in the United States are produced by no other facility in the world. Some of these are subject to export control requirements, and certain information may not be released to the public sector. Competitive fluorochemicals are to 3M's knowledge not manufactured by any other company in the United States, but they may be manufactured by companies in overseas locations. While 3M does not possess detailed information on the locations and manufacturing configurations of its competition, we believe many of their products are produced outside the United States where Subpart L data is not being reported. An overwhelming majority of 3M's fluorinated gas production is located within the United States. Accordingly, 3M may be uniquely affected by this proposed rule. 3M may be the only manufacturer of fluorinated gases that faces the possibility that its trade secret manufacturing information will be released as a result of EPA's determinations that certain process-related chemical identities and other information is not CBI.
There is no patent for process-related information. 3M relies on trade secret protection to maintain the value of its investment in technology. 3M is very careful to take measures to preserve the secrecy of this information, including (a) requesting that the information be held confidential in this and other submissions to federal, state and local agencies, (b) keeping the information in secure buildings, protected by security guards at entrances, to which non-company personnel do not have access (unless given special security clearance or escort), (c) entering confidentiality agreements with its employees, and (d) entering confidentiality agreements with its consultants, contractors and customers.
If the specific chemical identities in emission streams, by process, and other process-related information described . . . are made public this would reveal highly confidential aspects of process configurations and characteristics for 3M's facilities subject to Subpart L. It would include data on product chemical compositions. It could allow competitors to duplicate the process and create the products without having to make the multi-million dollar research and development investments, thus giving them a substantial competitive advantage. Because they have not had to incur the R&D costs, it could allow competitors to out-compete these facilities, causing loss of sales, business, and potentially loss of jobs. 
Comment Excerpt Number:  29
Comment: EPA's proposal would allow competitors to learn process-related trade secret information when 3M first reports the information, and it would also allow competitors to see how 3M might change its processes, configurations and chemistries as 3M reports this information in the future. This would be potentially very damaging to 3M and would give competitors substantial competitive advantages. EPA's advance determinations on CBI do not adequately take into account the possibility that United States manufacturing facilities will innovate and change or come up with unique manufacturing methods in the future that will need CBI protections. EPA's advance determinations seem to contain the assumption that a currently non-CBI process will always remain non-CBI, or that processes will always remain the same. They do not seem to allow for novel changes in manufacturing processes or production methods that a facility would want to protect as trade secret. By not allowing facilities to make CBI claims as they arise, EPA is not being realistic about the possibility of developments in manufacturing and in effect is discouraging innovation. 
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Data Elements in Categories with Categorical CBI Determinations  -  Subpart L
Commenter Name:  Bredan Mascarenhas, Manager of Regulatory and Technical Affairs
Commenter Affiliation:  American Chemistry Council (ACC)
Document Control Number:  EPA-HQ-OAR-2011-0028-0017
Comment Excerpt Number:  1
Comment: As referenced in the separate comments on this proposal submitted by ACC member 3M, the emissions streams produced as a result of a particular process may contain information that is identical to the chemical identities used in the process. This information, if made available to the public, would allow for others, particularly overseas competitors, to easily reverse engineer a production process and thus obtain critical trade secrets. As this information can contain sensitive CBI, the Agency should not require its disclosure as information open to the public, but rather classify this data element as confidential. Concerns with some of the specific proposed CBI determinations in Subpart L are provided below.
A. Sections 98.126(a)(2)(i)-(iv)--Total mass of each F-GHG emitted from each fluorinated gas production process (metric tons), and from all fluorinated gas production processes combined; total mass of F-GHG emitted from certain fluorinated gas transformation processes; mass of F-GHG emitted from venting of residual F-GHGs from containers returned from the field:
EPA has proposed that this information is not CBI, but reportable as emission data. ACC disagrees with this determination because specific cases exist where this information would be considered CBI. Reporting emissions for specific processes would result in the availability of process-specific information that has not been placed in the public domain. This could reveal trade secret information about the number of process steps, which is technologically sensitive information that facilities take great care in protecting. The emissions information that is reported under §98.126(a)(2)(i), combined with the mass of each fluorinated GHG emitted from each process vent (metric tons) being reported under §98.126 (c)(3), will, in some cases, disclose sensitive trade secret information. In many cases, the chemical composition of the product or an isolated intermediate can be determined from the emissions stream. Subpart L reporting is different from other environmental reporting in that the emissions from the process may be the product or byproducts of a reaction. Accordingly, this type of information can easily reveal novel production methods. The availability of this information would obviate the need for research and development investments by competitors to replicate the process. Chemical-specific information of this type has not been made available to the public previously. For example, in air permitting or emissions reporting, these emission constituents have been reported as Volatile Organic Compounds (VOCs) or another, more general descriptor, therefore allowing for the information`s accurate reporting while appropriately protecting specific chemical identities. 
Comment Excerpt Number:  2
Comment: Section 98.126(a)(3) -- Chemical identities of the contents of the emission stream analyzed under the initial scoping speciation of fluorinated GHG, by process:
The proposed EPA determination for reporting Section 98.126(a)(3) raises significant concerns for the protection of confidential business information of Subpart L reporters. ACC and its members believe that the determinations under this section deserve further review by the Agency before finalization.
In EPA`s December 2011 memo (Memorandum A) accompanying the proposal, the data reported under §98.126(a)(3) for chemical identities of the contents of the stream(s) (including process, and destroyed streams) analyzed under the initial scoping speciation of fluorinated GHG at 40 CFR 98.124(a), by process were correctly determined to be data that is CBI and thus eligible for confidential treatment. As this scoping analysis contains integral data regarding the process streams in production, a CBI determination is appropriate in order to protect the sensitive information being disclosed.
However, the determination for the other scoping report data element, chemical identities of the contents of the stream(s) (including emissions) analyzed under the initial scoping of fluorinated GHG at 40 CFR 98.124(a), raises serious CBI concerns. In the matrix in Memorandum A, EPA determines this element to be available to the public as emission data, and thus not eligible for confidential treatment. This determination is apparently based on the Agency's broad interpretation of emission data, a classification that does not qualify the data for treatment as CBI. The concerns with EPA's broad interpretation are described in comments from ACC (excerpts of which are attached in Appendix A) on EPA's July 2010 confidentiality determinations for data under the Mandatory Reporting Rule (Docket ID No. EPA-HQ-OAR-2009-0924). The comments state that EPA has mistakenly defined emission data to be every piece of information or data upon which GHG emissions might be calculated. ACC goes on to recommend that when determining what information should be publicly available, EPA follow the model established by other reporting systems (e.g., TRI and California's Greenhouse Gas Emission Reporting system), discussed in more detail in attached Appendix A. In order to fully protect this information, the Agency should allow facilities to report emissions as aggregate CO2e emissions, consistent with Subpart OO. 
The request for chemical identities in §98.124(a) has the potential to provide chemical-specific information, by process, on not only how the manufacturing process is configured, but also on the chemical formulas used in the manufacturing process. EPA has already conceded that this type of information is CBI when it involves chemical identities of process streams and destroyed streams under Subpart L. The chemical identities in §98.124(a) are the same type of trade secret information. ACC would point out that this determination unfairly targets those facilities or processes where a reporter decided to measure vent gas composition for scoping analysis and that EPA's proposed CBI determinations were made after reporters had already made these decisions. 
Comment Excerpt Number:  3
Comment: As there are clear CBI concerns with information reported under §98.124(a)(4), ACC requests that EPA extend the current deadline of March 31, 2012 for Subpart L reporters. Further, some of this information also will be subject to export control laws, a fact that raises another set of concerns . . .. ACC member 3M asks that EPA consider this information as a static unit/process operational characteristic as opposed to emission data, given that it is baseline information that is not provided along with reported emission amounts. EPA has considered similar information for facilities subject to Subpart I as non-emission data, including disclosure of the "recipes" (e.g., specific combination of gases used to fabricate a specific feature on a film or substrate), process sub-type, or type associated with each abatement system for specific process steps, because EPA recognized that it would provide insight into how the reporting facility is configured and achieves its specific manufacturing performance. EPA should use the same rationale for this "chemical identity" information. 
Comment Excerpt Number:  4
Comment: Section 98.126(c)(4) -- Mass of each F-GHG emitted from equipment leaks: EPA has proposed that the information under §98.126(c)(4) is emissions data and therefore cannot be CBI. However, this determination could result in the disclosure of sensitive information. An example of this is the case of fugitive air emissions, which may be determined using various methods. Fugitive emissions in this source category are very low, but because this information is being reported by process and because all amounts are reportable, the composition of the product or an isolated intermediate can be determined from fugitive emissions information. For an operation that involves the handling of the final product, the composition of the fugitive air emission stream could easily be identical to the product content, since fugitive emissions are assumed to be reflective of the process fluids. EPA has considered this type of composition information CBI under Subpart OO and under §98.126(a)(6). Although EPA proposed that equipment leak information is not subject to CBI protection, when this same information is reported pursuant to §98.126(a)(6), the chemical formula and total mass produced of the fluorinated gas product in metric tons, by chemical and process, EPA determined it is CBI. All of the above information on production outputs and F-GHGs from process vents and processes should be held confidential. Normally, reports of process fugitive emissions are aggregated for an entire facility. In addition, this emissions information typically has been reported as part of a chemical group, i.e., VOCs. Reporting this type of information by process in the specificity required under Subpart L has not been required under air rules to date, and could result in the disclosure of CBI.
Comment Excerpt Number:  5
Comment: Information required to be disclosed under Part 98, Subpart L includes content that is controlled for export by various U.S. agencies for reasons including, but not limited to, national security, antiterrorism, nuclear non-proliferation, and chemical and biological weapons security. Once the Agency receives this information, it becomes responsible for ensuring that it controls this information in compliance with all U.S. export control regulations. 
The Export Administration Regulations (EAR), 15 CFR 730-780, and the International Traffic in Arms Regulations (ITAR), 22 CFR 120-130, are the two principal U.S. export control regimes. ITAR, applicable to those products and technical data that are specifically designed or modified for military use and are on the Munitions List, prohibits virtually all exports to every country without export authorization by the State Department, following review by the Departments of State and Commerce. The EAR controls products, intermediate materials, raw materials components and accessories, technology, software and manufacturing that meet very detailed specifications delineated in the EAR. ITAR defines technical data as information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of --defense articles. Similarly, the EAR prohibits the export of controlled "development", "production" and/or "use" technology: 
Development: "is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts." 
Production: "means all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, quality assurance." 
Use: means "operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing."
For example, under EAR ECCN 1E001, the EAR prohibits the export of development and production technology for a wide number of products and intermediate materials that are EAR-controlled, including: 
   * components made from fluorinated compounds; 
   * composite structures or laminates made from certain organic, metal or carbon matrices; 
   * carbon filamentary materials, certain non-aromatic polymides in film, sheet, tape or ribbon form; 
   * gas mask filter canisters and decontamination equipment for defense against biological agents radiological agents, chemical warfare agents or riot control agents; 
   * body armor; 
   * equipment and devices designed to initiate charges; and
   * devices containing energetic materials. 
This technology is expressly controlled for export due to concerns with national security, nuclear nonproliferation, anti-terrorism, missile technology, and other risks. 
The prohibitions against exports include not only physical exports of products or technology, but also "deemed exports", i.e., the sharing within the U.S. of controlled technology to those who are not U.S. citizens or permanent residents. 
While it is possible to publish and make "publicly available" EAR-controlled technology without violating the EAR, the release to the public of ITAR-controlled technology would require the prior written approval of the appropriate government agency. In other words, to require the public release of ITAR-controlled technology, the requiring company (in this case, EPA) would first need to obtain the approval of the appropriate agency, which could vary depending on the information in question. This process is described in 22 CFR 120.11(a)(7) (definition of public domain), as a handbook that outlines the process to obtain approval for public release of ITAR controlled technology.4 
In consideration of U.S. export control regulations, ACC member company scientists have evaluated the level and detail of emissions information currently required by Part 98, and advised that providing such emission information could constitute the disclosure of controlled production technology and possibly technical data to the EPA. 
To remain in compliance with U.S. export control regulations, EPA personnel would need either to request authorization to publicly release such information, or implement an export control plan to assure compliance with all U.S. export control regulations. The Agency would need to ensure that it can identify and segregate such information on U.S. based servers with restrictions on sharing internally and externally with anyone to whom the technology would be controlled. It also would need to put in place controls to protect against unauthorized disclosure by employees and others at the EPA. This would be a difficult and detailed process to implement and maintain. This problem would be compounded by the fact that EPA will not necessarily be in possession of the additional scientific information that would enable it to evaluate which data it possesses that may trigger export control requirements. 
For all of the reasons noted above, this information should be treated as CBI and not publicly disclosed. EPA should also implement whatever additional restrictions are necessary to comply with export control regulations. 
Comment Excerpt Number:  6
Comment: EPA`s proposed determinations in Subpart L create the strong likelihood of a competitive disadvantage for companies that may face serious discrepancies in the treatment of reported data. For example, if a company reports under Subpart L §98.126(b), all process inputs and outputs would be made available to the public, information that is routinely protected as CBI in permit or emissions reporting documents sent to state agencies. However, if a company reports under §98.126(c), much less information would be available to the public, allowing this company to protect its sensitive business information. To afford adequate protection to all U.S. companies, EPA should determine that all of the data is business confidential, regardless of the method of calculating emissions. 
More important than the inequity that may result from differences in the emissions calculation methods that are used at U.S. locations, is the fact that U.S. suppliers and manufacturers would be placed at a competitive disadvantage with foreign manufacturers and suppliers. ACC member companies have reviewed CBI practices at non-U.S. locations. Much more information will be submitted and disclosed under the MRR than is customarily released at non-U.S. locations. In addition, the CBI practices at foreign locations are much more protective of process information than what is being proposed in this rulemaking. In almost all cases, government agencies outside the U.S. limit the information requested so they do not implicate trade secret information. 
On Tuesday, February 29, 2012, President Obama signed an executive order creating the Interagency Trade Enforcement Center. The White House said the order "will institute a more aggressive `whole-of-government' approach to getting tough on trade enforcement by monitoring and enforcing U.S. rights under international and domestic trade rules and countering unfair subsidies that tilt the global market against U.S. firms." [Footnote: http://www.whitehouse.gov/the-press-office/2012/02/28/executive-order-establishment-interagency-trade-enforcement-center]. As reported by the Associated Press, the office "will expand the administration`s ability to challenge unfair trading practices in China and elsewhere." The Associated Press also noted that the President "has accused China of subsidizing homegrown companies and allowing counterfeiting and intellectual piracy. The president's most recent budget proposal asks Congress for millions of dollars for the new enforcement center and more US inspectors in China."
It is recognized that manufacturers outside the United States would welcome information on manufacturing processes at facilities subject to Subpart L. EPA should not be adopting rules that have the effect of promoting intellectual piracy in China or other countries, especially as the White House simultaneously recognizes the substantial threat that piracy poses and chooses to spend millions of dollars in enforcement money to counter it. 
By including process-related emission information for greenhouse gas reporting, EPA`s interpretation of the term "emission data" is over broad. This interpretation also forces public disclosure of sensitive business information that likely includes a company`s trade secret information. 
In order to fully grasp the wide breadth of the potential negative consequences this issue poses, it is important to acknowledge it from an intellectual property law and research and development (R&D) perspective. R&D is responsible for the development of trade secret information, sometimes after multiple years and millions of dollars spent in order to develop and improve valuable product and process information. 
Sensitive R&D information is reflected in the details of a company`s manufacturing and process information. This information has economic value only as long as the information remains confidential and, therefore, unavailable to competitors. Trade secret information represents a long recognized form of intellectual property in the United States and elsewhere in the world. Companies invest in R&D efforts in reliance on the protection that U.S. Federal and state laws provide for their intellectual property. These laws allow them to protect their trade secrets and confidential information long enough for them to recoup their R&D investment and realize the potentially significant economic rewards that are available in the commercial marketplace. This potential for economic reward provides significant commercial incentive to companies doing business in the United States. 
America's intellectual property laws have created a framework in which American companies have been encouraged to invest in research in development, to innovate and develop new technologies. Silicon Valley, Microsoft, Apple, and 3M all represent companies whose notable innovation has been a direct result of the protection of intellectual property. The danger of overseas competitors illegally copying or reverse engineering manufacturing technologies is very real and very damaging. However, due to the U.S.`s framework of intellectual property laws that safeguard R&D and innovation, simple ideas have the opportunity to grow and develop into essential products. Indeed, one of our nation`s strongest credits is the creation of a framework that promotes an accessible marketplace which welcomes new ideas and technology. A critical piece of that framework is the protection of intellectual property and the recognition that trade secrets and competitively sensitive information are important and valuable assets to American companies. 
EPA`s proposal, which requires disclosure of process-specific trade secret information, destroys this framework. Through one deliberate action, EPA could unintentionally compromise multi-million dollar investments into R&D by American companies. Companies throughout the world could use this information to copy the technology or processes that American companies have invested in and worked hard to create without having to make that same R&D investment. This creates an unfair competitive advantage for overseas companies that may use this information, while obviously damaging the financial wherewithal and global competitiveness of the American companies that lose their valuable trade secret information. 
Instead of fostering innovation, proposals such as this one force disclosure of trade secrets that stifle innovation by discouraging companies from investing in R&D in the U.S. Companies may rather decide to relocate their facilities to other parts of the world in search of adequate protection for their ideas and R&D investments. The determinations in this proposal may well promote intellectual piracy by overseas competitors and damage the global competitiveness of American companies. Rather than adopting regulations that force disclosure of valuable company trade secret information, EPA should adopt regulations that recognize the inherent value of this data and attempt to safeguard it. 
______________________________________________________________________________Commenter Name:  Jeffrey C. Muffat, Manager of Environmental Regulatory Affairs
Commenter Affiliation:  3M Company
Document Control Number:  EPA-HQ-OAR-2011-0028-0018
Comment Excerpt Number:  1
Comment: 3M supports EPA's proposed determinations that some of the information requested is confidential business information (CBI), particularly trade secret information related to location and function of certain processes in those facilities. 
Comment Excerpt Number:  10
Comment: 3M also supports EPA's determination that under reporting section 98.126(a)(3), the "chemical identities of the contents of the stream(s)" for process and destroyed streams analyzed under the initial scoping speciation of fluorinated GHG at 98.124(a), by process, are CBI. EPA Table A-1: List of Proposed Data Category Assignments and CBI Determinations for Direct Emitter Subparts L, DD, II, RR, SS, and TT, p. 6. As discussed in more detail below, these chemical identities, if identified by process, would give 3M's competitors trade secret information on 3M's specific manufacturing processes, which 3M has invested millions of dollars and many years in developing. It would give competitors information on operational strategies that they would not need to invest their own research and development dollars to develop, all of which would put 3M at a competitive advantage. 
Comment Excerpt Number:  19
Comment: §98.126(c)(1)-(3) -- Identity of the process activity used to estimate emissions (tons of product or tons of reactant consumed); mass of each F-GHG emitted for each process vent (metric tons): Whereas information contained in other paragraphs of §98.126 would be sufficient alone to compromise trade secrets, the information contained in these reporting elements is highly confidential because it could be used to determine the quantities and contents of all manufacturing streams. Since §98.126 (a)(3) is simply the product of §§98.126 (c)(1) and (2), reporting any two elements will allow for the third to be calculated. Although EPA has deferred the reporting of §§98.126 (c)(1) and (2) because it considers it "inputs to emission equations,"3M has concerns with the information required in §98.126(a)(3). They are similar to those expressed previously for §98.126(a) with the additional concern that reporting emissions by "process vent" has the potential to provide even more detail than emissions by process. The examples cited previously with respect to the CBI determinations made for 98.126 (a) would also pertain to this paragraph. 
Comment Excerpt Number:  20
Comment: §98.126(c)(4) -- Mass of each F-GHG emitted from equipment leaks: EPA has proposed that this is emissions data and not CBI. However, this could result in the disclosure of CBI. Fugitive air emissions may be determined using various methods. Fugitive emissions are very low, with some methods predicting emissions that are less than 0.1% of process emissions. Because this information is being reported by process and because all amounts are reportable, the composition of the product or of an isolated intermediate can be determined from this information. For an operation that involves the handling of the final product, the composition of the fugitive air emission stream could easily be identical to the product content, since fugitive emissions are assumed to be reflective of the process fluid. EPA has considered this type of composition information CBI under Subpart OO and under §98.126(a)(6). Although EPA proposed that equipment leak information is not subject to CBI protection, when this same information is reported pursuant to §98.126(a)(6), "the chemical formula and total mass produced of the fluorinated gas product in metric tons, by chemical and process," EPA determined it is CBI. All of the above information on production outputs and F-GHGs from process vents and processes should be held confidential. Normally reports of process fugitive emissions are aggregated for an entire facility. In addition, this emissions information typically has been reported as part of a chemical group, i.e., VOCs. Reporting this type of information by process in the specificity required under Subpart L has not been required under air rules to date, and would likely result in the disclosure of CBI. 
Comment Excerpt Number:  21
Comment: §98.126(b)(7): EPA appropriately recognizes this element as CBI. The mass and chemical formula of each fluorine-containing product produced by the process is confidential information. EPA has recognized this in its determination under §98.126(a)(6) and in Subpart OO where production volume information is being treated universally as CBI. 
Comment Excerpt Number:  22
Comment: §98.126(b)(4) and (5)-- Mass and chemical formula of the F-GHG product emitted from the process, mass and chemical formula of the F-GHG by-product emitted from the process: EPA has proposed this is emission data and therefore not CBI; however, it is CBI. The information being reported under these subsections may not have been placed in the public domain. As indicated earlier, emissions are not always associated with the manufacture of a specific product. More importantly, the data elements in conjunction with reactant inputs and other outputs will provide one of the elements that is necessary to determine the process yield. It provides information on manufacturing formulas and process yields that could be used by a competitor to try to duplicate the manufacturing process. The mass and composition of the process inputs and outputs could also be used to determine the presence and elemental composition of proprietary chemicals. It is not public information. 
Comment Excerpt Number:  23
Comment: §98.126(b)(3) and (4) -- Mass and chemical formula of each F-GHG reactant emitted from the process: EPA has proposed that this is emission data and not CBI; however, this information is CBI. Because the balanced chemical equation is public information, the mass of each reactant fed into the production process would provide competitors information on specific production quantities and process yields. This information is not in the public domain. The mass and composition of the process inputs and outputs could also be used to determine the presence and elemental composition of proprietary chemicals. It is confidential information alone; in combination with the addition of the mass of product produced (§98.126(b)(7)), the mass of product emitted (§98.126(b)(4), and mass of each byproduct emitted (§98.126(b)(5)), all of this would provide competitors a detailed understanding of the manufacturing process at a particular Subpart L facility. Because some Subpart L facilities have invested substantial R&D in the millions of dollars and over 60 years of experience in developing unique process characteristics, the mass of reactants could be highly confidential information. For some facilities, the basic chemical equations for a process may have been placed in the public sector. However for other facilities, this type of detailed information would provide competitors with information on specific production quantities and process yields, and create substantial harm to the competitive position. 
Comment Excerpt Number:  24
Comment: § 98.126(a)(6) -- Total production mass of each fluorinated gas product, by chemical and process (metric tons); chemical formula of each fluorinated gas product, by chemical and process. EPA has proposed that this information is CBI. 3M supports this determination. This is consistent with those determinations made for the same information that is being reported under Subpart OO although this same information, i.e., production volume, would not be considered CBI under Section 98.126(a)(2)(i) as mass of each F-GHG emitted from each process (because the fluorinated gas is, in fact, the "fluorinated gas product"). In addition, EPA's determination that the "chemical formula of each fluorinated gas product" is CBI is inconsistent with EPA's determination (above) that "chemical identities of contents of the emission stream" is not CBI  --  they can amount to the same information when the emission stream is in fact the gas product, especially if this information is being reported by process vent. 
Comment Excerpt Number:  25
Comment: Although EPA is proposing that chemical identities of contents of process and destroyed streams, by process, are CBI, EPA is proposing that chemical identities of the contents of emission streams, by process, are not CBI. EPA Table A-1, p. 6, reporting section 98.126(a)(3). EPA is characterizing this information as emission data and therefore not CBI. However, the same analysis that EPA uses above to conclude that "location and function" of the process are CBI, and the chemical identities of contents of process and destroyed streams are CBI, also applies to the chemical identities of the contents of emission streams, for many of the 3M processes at facilities subject to Subpart L. The information on chemical identities, by process, can reveal information on the chemistries that 3M employs at various steps in its manufacturing processes. The chemical identities involve trade secret information. In addition, the information by process could provide insight into the manufacturing process and facility configuration, such as which intermediate process equipment is sending streams to which intermediate or final process equipment. . . .
§ 98.126(a)(3) -- Chemical identities of the contents of the emission stream analyzed under the initial scoping speciation of fluorinated GHG, by process: The confidential nature of this element is discussed above. This request for chemical identities has the potential to provide chemical-specific information, by process, on how the manufacturing process is configured and on chemical formulas in the manufacturing process. EPA has conceded that this type of information is CBI when it involves chemical identities of process streams and destroyed streams under Subpart L -- this is the same type of trade secret information. We would point out that this determination unfairly targets those facilities or processes where a reporter decided to measure vent gas composition for scoping analysis and that EPA's proposed CBI determinations were made after reporters had already made these decisions. This is the information that EPA is requesting by March 31, 2012, and therefore 3M asks for an extension on submission of this until the CBI issue is resolved. Some of this information will also be subject to export control laws. 3M asks that EPA consider this information as a static unit/process operational characteristic as opposed to "emission data," given that it is baseline information that is not provided along with reported emission amounts. EPA has considered similar information for facilities subject to Subpart I as non-emission data, including disclosure of the "recipes" (e.g., specific combination of gases used to fabricate a specific feature on a film or substrate), process sub-type, or type associated with each abatement system for specific process steps, because EPA recognized that it would provide insight into how the reporting facility is configured and achieves its specific manufacturing performance. EPA could use the same type of rationale for this "chemical identity" information. 
Comment Excerpt Number:  26
Comment: Sections 98.126(a)(2)(i)-(iv)--Total mass of each F-GHG emitted from each fluorinated gas production process (metric tons), and from all fluorinated gas production processes combined; total mass of F-GHG emitted from certain fluorinated gas transformation processes; mass of F-GHG emitted from venting of residual F-GHGs from containers returned from the field:
EPA has proposed that this information is not CBI, but reportable as emission data. 3M disagrees and contends that this should be held as CBI. Reporting emissions for specific processes would result in the availability of process specific information that has not been placed in the public domain. This is CBI data, and the release of this data has the potential to provide road-maps for the process and how it is configured. This will reveal trade secret information on the number of process steps. Appendix A to these comments includes a diagram showing how emissions from a packaging process can provide competitors information on the amount of product manufactured. Facilities exercise great care protecting all of this technology-sensitive information and production volumes. The emissions information that is reported under §98.126(a)(2)(i), combined with the "mass of each fluorinated GHG emitted from each process vent (metric tons)" being reported under §98.126 (c)(3), will in many cases provide sensitive trade secret information. The chemical composition of the product can be determined from the emissions stream.
Subpart L reporting is unique from other environmental reporting in that the emissions from the process may contain the product or byproducts of a reaction. The emissions are the same as the fluorinated gas product produced by the facility. In other cases, emissions may indicate the presence of unique chemicals. See Appendix B to these comments, which is a non-CBI diagram showing how emissions from a specific process can give insights into trade secret information on chemical inputs and reactants. Although it is a hypothetical example, it illustrates the point that disclosure of emissions by process or operating unit as opposed to disclosure of facility-wide emissions is what allows a competitor to determine the CBI associated with a particular product or intermediate. Accordingly, this type of information requested in this element of Subpart L may be unique and can reveal novel production methods. It is similar to the unique process data reflecting novel production methods that EPA determined was CBI for purposes of Subpart I. It is very different from the emissions information EPA reviewed for purposes of Subpart I and found it was not CBI because it was not unique: all of the facilities there used the same type of process gases typically found in the effluent streams. For purposes of 3M air permit applications or air emission reporting to date, these emission constituents have been reported as Total Organic Carbon or a Volatile Organic Compound, and therefore the specific chemical identities have not been revealed as public information. Many of the Maximum Achievable Control Technologies rules require detailed emissions information in semi-annual reporting, but in almost all cases the emissions are Hazardous Air Pollutant which may be used as a processing aid, e.g. cleaning solvents, but the process emissions are not the product of the process. 
Comment Excerpt Number:  29
Comment: Based on EPA's CBI determinations and the methods that are used to determine fluorinated greenhouse gas (F-GHG) emissions, the information being reported in §98.126 would provide detailed information on a fluorinated gas manufacturing facility. Unlike many other source categories where reported emissions will be limited to carbon dioxide alone, Subpart L data will be chemical specific. Subpart L covers "fluorinated gas production," and because EPA is asking for the chemical identities in emissions from each discrete process in a Subpart L facility, rather than from the facility as a whole, EPA in essence is asking for information that will reveal to competitors the trade secret manufacturing process and chemical recipe for how to make the product (the fluorinated gas), process step by process step. This will include data on product chemical compositions (also required under Subpart OO but there treated as CBI). It will reveal to competitors trade secret information on the number of process steps involved in making a fluorinated gas product. In addition, reports on emissions of the fluorinated gas will be the equivalent of trade secret information on the amount of the fluorinated gas product produced, which EPA has determined is CBI under Subpart OO, and the amounts of all isolated intermediates.
Competitors may well be able to use all of this detailed information to determine how the manufacturing facility is configured, and to determine novel manufacturing methods developed by 3M at great expense and over 60 years of research and development experience. It could allow them to reverse engineer products, some of which are currently manufactured by 3M alone. Once they have reverse engineered the products, it would allow them insight into capacity and capacity utilization, which are important to assessing competitive positions and pricing, potentially allowing them to take advantage of this information. 
Comment Excerpt Number:  30
Comment: EPA's recent proposed confidentiality determinations for Subpart I of the MRR provide confidentiality justifications that apply to the information EPA is requesting from 3M under Subpart L. See "Mandatory Reporting of Greenhouse Gases Rule: Confidentiality Determinations and Best Available Monitoring Methods Provisions," 77 FR 10434 (Feb. 22, 2012). In that proposed rule, EPA proposed that a description of manufacturing processes used at an electronics manufacturing facility would be CBI, because EPA recognized that facilities might employ an uncommon process, which could cover novel production methods that may have been developed by the reporting facility, generally at great expense and time investment. If competitors gained knowledge of this type of exclusive method, they could undercut the facility's competitive advantage by replicating it at less expense. EPA acknowledged that this "would likely result in substantial competitive harm." 77 FR at 10439. EPA also recognized that the number of abatement systems at an electronics manufacturing facility was CBI because it could provide insight into the number of tools at the facility, which coupled with production capacity could enable competitors to reverse-engineer the facility's approximate manufacturing costs using the competitor's own tool operating costs. Id. at 10440. Similarly, EPA recognized that disclosure of the type or description of manufacturing tools for specific process steps was CBI because it would provide insight into how a Subpart I facility is configured and how it achieves its specific manufacturing performance. Id. at 10441. EPA also proposed that the disclosure of the recipes (e.g., specific combination of gases used to fabricate a specific feature on a film or substrate), process sub-type, or type associated with each abatement system for specific process steps would provide insight into how the reporting facility is configured and achieves its specific manufacturing performance. Competitors could use this to replicate the manufacturing configuration and undercut the reporting facility's competitive advantage. Id. at 10441.
All of the above types of CBI are implicated by EPA's proposed Subpart L disclosure requirements. EPA's requests for information on emissions, which can be the same as the fluorinated gas products (or intermediates leading to the production of these products), by discrete process and for each process within the facility, would reveal trade secret information on 3M's novel production methods, on 3M's unique configurations and the number of processes and process steps used to produce a product, and on the unique intermediate chemistries leading up to production of fluorinated gas products. As EPA recognized for Subpart I facilities, this could give competitors the ability to replicate these processes and manufacturing configurations at significantly less expense, resulting in substantial harm to 3M.
In Subpart I, EPA determined that the "fluorinated GHG and N2O in the effluent stream to the abatement system" was not CBI because "[t]he type of fluorinated gas in the effluent stream would not likely cause substantial competitive harm if released, because all facilities use the same types of process gases that are typically found in effluent streams. The type of gas does not provide any insight into the costs of producing semiconductors at the facility or any novel production methods that may have been developed by the facility to improve manufacturing efficiencies, reduce manufacturing costs, or improve product performance." Id. at 10444. By contrast, however, the type of fluorinated gases in effluent streams subject to Subpart L for some 3M products would in fact reveal novel production methods developed by 3M at great expense and over many years of research and development, to improve manufacturing efficiencies and improve product performance. This information should be held as CBI by EPA because it would cause substantial competitive harm if released.
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Comments on the Inputs to Emission Equations Data Category and the Definition of Emissions Data  -  Subpart L
Commenter Name:  Bredan Mascarenhas, Manager of Regulatory and Technical Affairs
Commenter Affiliation:  American Chemistry Council (ACC)
Document Control Number:  EPA-HQ-OAR-2011-0028-0017
Comment Excerpt Number:  7
Comment: The effectiveness of the Reporting Program could be enhanced with a simple language clarification in the text of the proposal. Specifically, in the Memorandum A matrix, the reporting § 98.126(c)(1) for Subpart L is identified as "the identity of the process activity used to estimate emissions (e.g. tons of product or tons of reactant consumed)." This data is correctly determined to be "emission data" and available to the public in the matrix. However, the corresponding text in the proposal (Section 1, Fluorinated Gas Production), which should merely restate the matrix determinations, lists the data element as "the identity and quantity of the process activity used to estimate emissions...", [Footnote: 77 Fed. Reg. 1442, January 10, 2012] which the rule states is available to the public. While the identity of the process activity is "emissions data", the quantity of the process activity should be treated as CBI. In fact, the Agency's August 2011 Inputs to Emission Equations deferral correctly identifies the quantity portion of this requirement as subject to the reporting deferral of March 2015 [Footnote: 76 Fed. Reg. 53057, August 25, 2011]. In order to avoid any potential confusion, ACC suggests that EPA separate the paragraphs in the text of the rule. For example, the section that announces the determination for emissions data available to the public should list only the identity of the process activity, just as the matrix in Memorandum A does. A separate section could mention that the quantity is subject to EPA's Inputs to Emission Equations deferral deadline of March 31, 2015. This solution presents a relatively simple fix that would significantly reduce confusion about reporting requirements under the proposal. More importantly, it would allow for the full consideration of sensitive data elements that contain CBI. 
Comment Excerpt Number:  8
Comment:  The Clean Air Act, EPA's regulations, and the 1991 EPA notice support a narrow interpretation of "emissions data" for purposes of Part 98. 
The purpose of Section 114, in pertinent part, is to allow EPA to require a party to provide information to assist the Agency in developing or implementing an implementation plan under Section 110, emission standards under Sections 111 or 112, etc., or to determine if a person is in violation of those standards or implementation plan. It is not the purpose of Section 114 for EPA to require the submittal of voluminous amounts of data, including CBI, so that EPA can release all of that data to the public in a misguided effort to be "transparent". 
Section 114(c) of the 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 * * *." 
Congress clearly understood and recognized in Section 114(c) the importance of protecting trade secret information, specifically stating that methods and processes can be claimed confidential. EPA has correctly interpreted Section 114(c) of the CAA "to afford confidential treatment to both trade secrets and confidential business information." 75 Fed. Reg. at 39100. Only "emission data" collected by the Agency under Section 114(a) is an exception to the ability to claim information as trade secret. 
EPA defines "emission data" at 40 CFR Section 2.301(a)(2)(i) as: 
(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). 
EPA last clarified the type of information that EPA generally considers being "emission data", and which cannot qualify as confidential under either Section 114(c) or Section 110, in a notice published almost twenty years ago. In a February 21, 1991 Federal Register notice (56 Fed. Reg. 7042), EPA listed the specific data fields that it considered to be emission data. EPA first identified the data fields related to facility identification, which we do not address in these comments. EPA then listed the data fields needed to establish the characteristics of the emissions or "emission parameters": 
 Emission type (e.g., nature of emissions such as CO2) 
 Emission rate (e.g., amount released to the atmosphere over time) 
 Release height 
 Description of terrain and surrounding structures 
 Stack or vent diameter at point of emissions 
 Release velocity 
 Release temperature 
 Frequency of release 
 Duration of release 
 Concentration 
 Density of the emissions stream or average molecular weight 
 Boiler or process design capacity 
 Emission estimation method 
 Percent space heat 
 Hourly maximum design rate 
At the end of the Federal Register notice, EPA noted that "after consideration of comments on this policy, a revised policy/determination may be published." We have been unable to locate the comments submitted on this notice (they are not available electronically and could not be located at EPA) to inform ourselves of the issues raised by commenters for EPA's consideration. However, it does not appear any revised policy determination has ever been published. 
Contrary to EPA's instincts to expand its interpretation, ACC believes that the language of CAA 
Section 114(c), as well as federal case law interpreting that language and the federal regulations, support a more narrow reading of "emission data", especially when applied to the unprecedented and voluminous amounts of information EPA is requiring to be submitted under Part 98. 
Moreover, we question the basis for the 1991 Federal Register proposed policy that the "emission rate", "hourly maximum design rate", and "boiler or process design capacity" should be considered "emission data". These pieces of information can be trade secrets, because they can show the amount of production or capacity by a source. Additionally, the submittal of this data is not necessary for a source to comply with Part 98's reporting of GHG emissions, and the information is not necessary to determine actual emissions or facility identity. If EPA determines this data must be submitted pursuant to Part 98, it should be identified as CBI and protected from public disclosure. 
B. Case law supports a narrow interpretation of "emission data".
We believe that Section 114(c) and case law reviewing EPA's regulations implementing that section show that Congress tried to strike a balance between the public's right to access records, reports or other information obtained by EPA pursuant to Section 114(a) and a person's right to protect certain records, reports or other information from public disclosure because it is CBI. In
RSR Corp. v. EPA, 588 F. Supp. 1251 (N.D. Tex. 1984) the federal district court took a careful look at CAA Section 114(c) and the definition of "emission data" in 40 CFR Section 
2.301(a)(2)(1). The court emphasized the "necessary to determine" portion of Section 2.301(a)(2)(i) in quoting the definition, as follows: 
"(A) Information necessary to determine the identity, amount, frequency, concentration or other characteristics . . . of any emission . . .; 
(B) Information necessary to determine the identity, amount, frequency, concentration, or other characteristics . . . of the emissions . . .; and 
(C) A general description of the location and/or nature of the source to the extent necessary to identify the source and distinguish it from other sources . . . ." 
588 F. Supp. 1251, 1255 (emphasis in the original). In RSR Corp., EPA had claimed that certain documents were disclosable "emission data" because they were necessary to determine emissions through a material balance calculation. The court concluded that EPA's decision was arbitrary and capricious (and therefore improper) because EPA did not provide any information that EPA considered alternative methods of identifying or measuring pollutants, "so that the release of information claimed to be proprietary could be avoided unless required by statute." 588 F. Supp. at 1256. 
The court emphasized the word "necessary" in 40 CFR Section 2.301(a)(2)(i). According to the court, only if certain information is really "necessary" to determine emissions should it be considered "emission data", and the Agency should consider alternative methods of identifying information to determine emissions, so that confidential information is not compromised. See NRDC v. Leavitt, 2006 WL 667327 (D. D.C. 2006) (citing RSR and adopting a strict interpretation of the "necessary to determine" requirement). 
Of the voluminous amounts of information that EPA is requesting in Part 98, very little rises to the level of information "necessary to determine" actual emissions or facility identity. First, unlike the situation with most EPA air emission rules, Part 98 merely requires the reporting of GHG emissions, not compliance with an emission limit or standard. EPA has neither proposed nor established emission limits or standards for GHGs. Accordingly, much of the data that EPA is requiring facilities to submit to the Agency is not "necessary" pursuant to 40 CFR Section 2.301(a)(2)(i)(A) and (C). Nonetheless, EPA is requiring a facility to submit this additional information, rather than allowing the information to remain onsite and subject to request or review by the Agency as needed. Because this information is not "emission data" and is sensitive information related to chemical manufacturing and production, it is entitled to confidential treatment because disclosure is likely to cause substantial harm to the competitive position of the facilities required to report this information. 
We agree with EPA's conclusion that because there are no established GHG emission standards or limitations for the facilities subject to Part 98, Section 2.301(a)(2)(i)(B) does not apply. 75 Fed. Reg. at 39100. Similarly, because there are no proposed or existing standards or limitations, we believe that the provisions in Section 2.301(a)(2)(ii) do not apply. 
For the purpose of the MRR, Section 114 of the CAA, EPA's regulations and the case law all support a narrow reading of "emission data" that safeguards company trade secret information to the extent possible.
Comment Excerpt Number:  21
Comment: In EPA's previous communications, 3M as a member company of ACC has been led to understand that the purpose of these broad requests for detailed process information were intended to provide the basis for future policy and rule development and not to "verify reported GHG emissions." Much of [the] data being reported by EPA, however, would do little in verifying emission estimates. For example under §98.126(c), the quantity of the activity measurement ((c)(1)) is used to convert the process vent specific emission factor ((c)(2)), into the mass of each fluorinated GHG emitted ((c)(3)). Based on the language in the request for comments, the purpose of reporting both the production quantity and the emission factor is presumed to allow EPA to verify that the mass reported in (c)(3) is correct. This is a simple multiplication and there is little value in reporting this information. It is unlikely that any errors or omissions will occur at this step in the emission calculation process. True "verification" of the emission factor could only occur by an evaluation of the detailed engineering calculations or emission testing results that that [sic] serve as the basis of the emission factor. We would also point out that the production quantity being reported under these sections may be identical to the values being reported under Subpart OO where EPA has provided broad CBI protections.
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Comments on the Notice Development Process  -  Subpart L 	
Commenter Name:  Jeffrey C. Muffat, Manager of Environmental Regulatory Affairs
Commenter Affiliation:  3M Company
Document Control Number:  EPA-HQ-OAR-2011-0028-0018
Comment Excerpt Number:  2
Comment: Some of the information requested by EPA and covered by EPA's confidentiality determinations under this proposed rule are scoping analyses that would need to be reported by 3M by March 31, 2012. EPA's proposed rule on confidentiality will not be finalized by that date. Much of this requested information would be CBI for 3M, and 3M does not believe its trade secrets would be adequately protected if it submits this information without certainty in the rules on whether EPA will protect it. Moreover, 3M is prohibited from making certain information available under export control laws. Accordingly, 3M asks that EPA grant an extension of the time period for reporting this information until the CBI and export control issues are resolved. 
Comment Excerpt Number:  10
Comment: 3M recognizes that EPA was under tight Congressional deadlines to propose and finalize a MRR for GHG emissions. We acknowledge and appreciate all the work that has gone into the MRR-related rulemakings to date. However, we are frustrated with the way EPA chose to sequence its proposal, i.e., EPA issued this CBI proposal after it finalized the main MRR and the Subpart L reporting rule. At the time EPA proposed the MRR requirements, we had no idea how EPA would handle CBI. Nonetheless, comments by ACC on proposed Subpart L in June of 2010 as well as 3M's and ACC's comments in June of 2009 communicated the initial CBI concerns based on the unprecedented and substantial amount of data EPA proposed to be required for submittal to the Agency. Specifically, in 3M's June 2009 comments 3M noted that EPA was asking for reporting of highly confidential information, and asked that EPA provide guidance in the reporting rule as to whether EPA planned to hold this information as CBI. In ACC's comments submitted in June of 2010, ACC noted that it was very concerned about the required submission of CBI and that it jeopardized member companies' international competitiveness, in that it details how ACC member companies manufacture fluorinated GHGs. At the time, ACC urged EPA to release its CBI proposals as soon as possible so that companies could evaluate and gauge the protectiveness of EPA's proposed handling procedures. 
Without knowing what the final rule would require or how EPA would protect data and information we believe is CBI, 3M and other companies were unable to consider, let alone propose specific alternatives to the submittal of all of that data and information. For example, in lieu of reporting sensitive data such as process-specific information that could expose trade secrets to the public, we might have found it preferable to agree to third-party audits. But we did not know then what we know now and as such have been disadvantaged by EPA's finalization of the MRR and in specific, Subpart L, before EPA's proposal on CBI. 
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Unit-Level Data should be Confidential  -  Subpart L 
Commenter Name:  Jeffrey C. Muffat, Manager of Environmental Regulatory Affairs
Commenter Affiliation:  3M Company
Document Control Number:  EPA-HQ-OAR-2011-0028-0018
Comment Excerpt Number:  13
Comment:  EPA's Demands for Process-Specific Emissions Information Goes Beyond its Authorization Under the Law 
EPA's mandatory reporting rules were adopted pursuant to H.R. 2764, the Consolidated Appropriations Act of 2008 . . . EPA's authorization in this Act is limited to requiring reporting of greenhouse gas emissions "above appropriate thresholds."
In the mandatory reporting rule that EPA eventually adopted, this threshold was set by facility at a certain number of metric tons of emissions per year. It is implicit in the law and in the rules adopted by EPA that reporting should be at the facility-wide level and for large levels, not at the level of individual processes within the facility. 3M contends that EPA has gone beyond its authorization in the law if it requires reporting of emissions by individual processes within a facility. From the beginning of the rulemaking process, 3M has encouraged EPA to adopt the alternative approach of requiring reporting for the facility as a whole in CO2 equivalents as is done under other reporting rules, including those related to greenhouse gas reporting. Where published GWP data is not available, 3M has estimated these values based on sound science and EPA could use similar approaches especially where these emissions would be very low.

