Class Determination x-xx , Confidentiality of Business Information Submitted in Compliance Documents for 2014 and Subsequent Model Year Vehicles, Engines and Equipment
U.S. Environmental Protection Agency (EPA) regulations issued under the authority of the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. § 552, prescribe procedures for determining whether business information submitted to the Agency and claimed as confidential by third parties should be released to the public when disclosure is requested under the Act.  40 C.F.R. § 2.207 of the regulations provides that a determination that information is or is not entitled to confidential treatment for reasons of business confidentiality may be made on a class basis if one or more characteristics common to all items of such information necessarily will result in identical treatment under the regulations for each such item of information.  In accordance with the regulation, the Assistant General Counsel for the General Law Office, as the General Counsel's designee, herein makes the requisite determination that information submitted by vehicle, engine, and equipment manufacturers for the purpose of assessing compliance with Clean Air Act regulatory requirements will be treated identically and should be the subject of a class determination.  This class determination will apply prospectively for 2014 and subsequent model year vehicles, engines and equipment regulated by the Office of Transportation and Air Quality and covers information that is submitted by manufacturers to satisfy post-certification compliance reporting requirements  as required by applicable regulations.   EPA intends to treat this information in a manner largely consistent with previously applicable class determinations for the same type of information.
In accordance with 40 C.F.R. § 2.207, I find that:
      1) EPA will possess large numbers of compliance reports and other information for vehicles, engines and equipment for model year 2014 and beyond, which contain information claimed to be entitled to confidential treatment for reasons of business confidentiality.  The Agency requires the submission of such documents to assure compliance with Clean Air Act requirements and will continue to require such documents in the future.  
      2) Certain categories of information contained in documents submitted to the Agency by manufacturers of vehicles, engines, and equipment share common characteristics that necessarily will result in identical treatment with respect to claims of business confidentiality. It is therefore appropriate to treat such information on a class basis for purposes of determining whether information is entitled to confidential treatment.
      3) A class determination that such information is or is not entitled to confidential treatment would streamline the Agency's response to requests for information under the Act and would further the purposes of the Act by assuring the American public timely access to requested information, consistent with the rights of affected businesses to be protected from improper disclosure of confidential treatment. It will also serve a useful purpose in that it will remove the necessity of clearing all of the information in each application prior to its being made available to the public.
EPA may withhold information from disclosure under the FOIA if the information falls within one of the exemptions of the Act.  One of these exemptions is for the "trade secrets and commercial or financial information obtained from a person and privileged or confidential" (5 U.S.C. 552(b)(4)).  The information contained in the compliance reports is clearly commercial or financial information.  The real issue is whether the information is exempt from disclosure as "trade secrets" or is otherwise "confidential" within the meaning of 5 U.S.C. 552(b)(4).
Before EPA may conclude that information in compliance reports is exempt from disclosure as trade secret or confidential information, the Agency must find that the information is in fact maintained in confidence by the business and is not publically available.  If it is not maintained in confidence or is publically available, it is not entitled to confidential treatment, and EPA must disclose the information.
Information that has not been obtained voluntarily, has been kept confidential and has not been made public in any way may be entitled to confidential treatment under 5 U.S.C. 552(b)(4) if it meets  one of the tests set out in National Parks & Conservation Association v. Morton, 498 F.2d  765 (D.C. Cir. 1974). See also Critical Mass Energy Project v. NRC, 975 F.2d 871, 880 (D.C. Cir. 1992).  Under Morton, commercial or financial information may only be withheld from disclosure if disclosure by EPA would be likely: (1) to impair the ability of the Government to obtain necessary information in the future or (2) to cause substantial harm to the competitive position of the person who submitted it to the Government. The first test is not applicable to the information in compliance reports because release of the information is unlikely to result in a diminution of the reliability or quality of what is submitted as the submission is required by statute (or regulation) in order for EPA to assess compliance with applicable Clean Air regulatory requirements.  The second test is applicable if disclosure of specific information would cause substantial harm to the competitive position of the manufacturer submitting compliance reports.
Consistent with previous class determinations, I have determined that the information in the compliance reports submitted to EPA for vehicles, engines, and equipment for model year 2014 and beyond will be treated as outlined below.  The regulated industries covered by this document are:
	Light-duty and medium duty passenger vehicles (LD)
	Nonroad Spark-ignition (marine, small, and large) engines (NRSI)
	Nonroad evaporative components and equipment (Nonroad Evap)
	Locomotives (Loco)
	Nonroad Compression-ignition engines and equipment (NRCI)
	Motorcycles, All-terrain Vehicles, and Snowmobiles (MC-ATV-Snow)
	Heavy-duty On-highway vehicles and engines (HD On-highway)
	Marine Compression-ignition engines (Marine CI)
	HD Vocational Vehicles and Tractors 

The tables below provide broad categories of the information collected in various post-certification compliance reports by EPA to assess compliance with EPA regulations.  Not all reports are required for all industries and there are some instances that cause certain reports to become required (e.g. defect reports). This information is either collected via the Verify Document Module in the form of documents (e.g., Adobe PDF, Microsoft Excel spreadsheets, or Microsoft Word documents), directly via web screens and stored in Verify or in electronic file as well as paper formats.  When a document is submitted, some industry sectors provide to EPA two versions of each document type.  One version contains the complete compliance document, including all CBI.  The second version is the "FOIA" version which has been redacted by the manufacturer of any CBI and is readily releasable by EPA when a FOIA request is received.   In order to facilitate the timely release of information, EPA encourages all manufacturers to submit a "FOIA" version of all of their compliance documents using the tables below as a guideline for what EPA considers to be releasable information.   
              Information Not Entitled to Confidential Treatment

I have determined that any emissions data contained in reports collected from vehicle, engine, or equipment models that is collected by EPA for post-certification compliance assessments and determinations is not entitled to confidential treatment (see Table 1 below). Under section 208 of the Clean Air Act (42 U.S.C. 7542), "emission data" is not entitled to confidential treatment and must be released at any time.  Section 2.301 of the regulations defines "emission data" and further clarifies that emission data, standards or limitations, and any other information provided under section 208 of the Clean Air Act which is determined under this subpart not to be entitled to confidential treatment, shall be available to the public.  While Section 2.301 does allow confidential treatment for information concerning any product, method, device, or installation prior to its introduction into commerce, this allowance does not apply to the extent that such information is "necessary to allow EPA to disclose that a source is (or is not) in compliance with an applicable standard or limitation, or to allow EPA to demonstrate the feasibility, practicality, or attainability (or lack thereof) of an existing or proposed standard or limitation." Emissions test results from vehicle, engine or equipment models ("emissions test data") are necessary for such purposes, and so are never entitled to confidential treatment.  Emissions test results data includes, for example, test results of measured pollutants such as CO, CO2, NOx, etc, as applicable.  Therefore, any claim for confidential business treatment of "emission test results data," as described above, will be denied.


                                    Table 1
Manufacturer Compliance Information Never Considered to be CBI (Either before or after Completion of the Model Year)
 
LD
NRSI
Nonroad Evap 
Loco
NRCI
MC-ATV-Snow
HD On-highway
Marine CI
HD Tractors and Vocational Vehicles
Emissions Test Results Data (includes criteria pollutants and greenhouse gas constituents)
X
X
X
X
X
X
X
X
X
X -  Information applicable to this industry category
 Information Entitled to Confidential Treatment until a Model Year is Complete
I have determined that the information set forth below in table 2 should be entitled to confidential business treatment until the date on which the model year of the vehicle, engine, or equipment model is complete.  The definition of a complete model year varies by industry sector and compliance reporting deadlines are specified in the applicable regulations. The model year will be considered complete with the final reporting deadlines as specified in the applicable regulations. This information will only be given confidential treatment if the manufacturer (1) asserts that the information is entitled to confidential treatment, and (2) has not waived or withdrawn that assertion.  Inherent in assertion (1) are the following representations by the manufacturer: (a) the manufacturer has maintained the information in confidence, (b) the information cannot be readily obtained by others by legitimate means, and (c) disclosure of the information to the public prior to the completion of the model year would be likely to cause substantial harm to the manufacturer's competitive position.  Upon request by EPA, the manufacturer is expected to substantiate these representations to EPA's satisfaction.








                                    Table 2
Manufacturer Compliance Information Not Considered to be CBI after Completion of the Model Year
 
LD
NRSI
Nonroad Evap 
Loco
NRCI
MC-ATV-Snow
HD On-highway
Marine CI
HD Tractors and Vocational Vehicles
Vehicle/Engine/Evaporative Family Information
X
X
X
X
X
X
X
X
X
Emission Control System Information 
X
X
X
X
X
X
X
X
X
Contacts/Importers/Agents of Service/Ports
X
X
X
X
X
X
X
X
X
Emission Standards, FELs, and DFs
X
X
X
X
X
X
X
X
X
Test Parameters and Information (test cycles, locations, sample sizes, etc)
X
X
X
X
X
X
X
X
X
Final Sales/Production Information  (subfamily, subconfiguration, engine models, annual production reports, product information reports, final CAFE and GHG reports including unique footprint /fuel economy , etc) 

X
X
X
X
X
X
X
X
X
Averaging, Banking & Trading Information (Emission and Greenhouse Gas credit information including credit balances, other credits earned, and parties involved in trades or purchases)
X
X
n/a
X
X
X
X
X
X
Greenhouse Gas Compliance Information (GEM inputs)
X
n/a
n/a
n/a
n/a
n/a
X
n/a
X
Redacted Versions of Documents
X
X
X
X
X
X
X
X
X

X  -  Information applicable to this industry category
n/a  -  Information not applicable to this industry category
Note: Compliance correspondence that relates directly to the categories in this table will be afforded the same protection as the underlying information.
	
These compliance reports contain information that is gathered by the manufacturer throughout the course of a given model year.  EPA does not collect the information prior to the completion of the model year because the information is not complete and is required to be submitted by reporting deadlines that are established by regulation (e.g. Final Averaging, Banking and Trading (ABT) reports are due 270 days after the completion of the model year). For this reason, if a manufacturer makes the representations set out above, I have determined that the information is entitled to confidential business treatment until the completion of the model year, unless EPA becomes aware that the particular information has become generally available to the manufacturer's competitors or requests the manufacturer to substantiate these representations to EPA's satisfaction.
The class determination for the information in Table 2 provides for confidential treatment on a class-wide basis only until the model year in question is complete. Manufacturers, however, are not precluded from requesting confidential treatment for the information in Table 2 for compliance reports for which the model year is already complete. Such requests will not be addressed under this class determination, but rather will be reviewed on a case-by-case basis using the substantial-competitive harm standard applicable generally to requests for confidential treatment under FOIA Exemption 4.  In the situation where a manufacturer wishes to assert that information covered under this section is entitled to confidential treatment, the manufacturer must state clearly that it is claiming specific information listed in Table 2 (and state what the information is) as confidential beyond the completion date of the model year and provide reason why the material is appropriately listed as CBI. Failure to do so constitutes a waiver of any further claim.
 
                Information Entitled to Confidential Treatment
Certain types of information in compliance reports may be entitled to confidential treatment beyond the date after which the model year has been completed.  I have determined that the information in Table 3 below may be entitled to confidential treatment indefinitely, both before and after the model year has been completed. In accordance with EPA regulations at 40 C.F.R. sections 2.204 and 2.205, this information will be entitled to confidential treatment if the manufacturer (1) asserts that the information is entitled to confidential treatment, and (2) has not waived or withdrawn that assertion.  Inherent in assertion (1) are the following representations by the manufacturer:  (a) they have maintained the information in confidence, (b) the information cannot be readily obtained by other legitimate means, and (c) disclosure of the information to the public both before and after model introduction would be likely to cause substantial harm to the manufacturer's competitive position.  Upon request by EPA, the manufacturer would be expected to substantiate these representations to EPA's satisfaction.  As noted above, if a manufacturer is unable to show harm to its competitive position after model introduction into commerce but can show harm prior to model introduction into commerce, the information will be entitled to confidential treatment prior to introduction into U.S. commerce.


                                    Table 3
        Manufacturer Compliance Information Always Considered to be CBI
 
LD
NRSI
Nonroad Evap 
Loco
NRCI
MC-ATV-Snow
HD On-highway
Marine CI
HD Tractors and Vocational Vehicles
Pre-Production Information (e.g. volumes, start and end dates, etc)
X
X
X
X
X
X
X
X
X
Aftertreatment Device Details
X
X
X
X
X
X
X
X
X
Auxiliary Emission Control Devices (AECDs)*
X
X
X
X
X
X
X
X
X
Technical Description Information / Test Group or Engine Family Comments/Notes/Explanations, etc. 
X
X
X
X
X
X
X
X
X
Premodel Year Reports
X
X
X
X
X
X
X
X
X

*The technical description provided by a manufacturer about how the AECD is used is always considered to be CBI.  However, the effect of the AECD on emissions is considered emissions data and is therefore never considered to be CBI.
n/a  -  Information not applicable to this industry category
 X  -  Information Applicable to this industry
Note: Compliance correspondence that relates directly to the categories in this table will be afforded the same protection as the underlying information.

The types of information in Table 3 may be confidential both before and after the completion of the model year.  For example, pre-model year reports provided to EPA are manufacturer estimates of product plans and the public release of such information would give insight into a manufacturer's competitive strategies. Therefore, release of such information could be harmful to the manufacturer. Given this circumstance, this information is also entitled to confidential treatment both before and after the end of the model year.  If EPA receives a request for this information, the agency will request that the manufacturer substantiate its confidentiality claims, consistent with the regulations at 40 C.F.R. Part 2.  The agency expects that information in the substantiation might reveal other confidential information.
     Other Manufacturer Information Not Entitled to Confidential Treatment
There are several categories of information that are provided by manufacturers to EPA on an "as needed" basis as outlined in the regulations as compared to the information in the tables above which is required to be reported to EPA at regular intervals as outlined in the applicable regulations (e.g. 90 days after the end of the model year).   
One major category of information is related to recall and defect reporting.  For defect reporting, manufacturers are required to report emission-related defects to EPA when certain defect thresholds are met, as outlined in the applicable regulations.  In the past, EPA has made available full defect reports we have received but only for the light-duty industry sector because they were most frequently requested.  The existence of a defect report and the general information required to describe it will not be considered CBI. Manufacturers should submit to EPA both a FOIA version and a non-FOIA version of a defect report to address any requests for more detailed information. 
For recall reporting, manufacturers issue a recall when a defect is identified that causes noncompliance with emission standards.  These recalls are mostly conducted voluntarily by the manufacturer, but EPA can also mandate recalls. All recall reports must be submitted to EPA.  Recall reports are widely available to the general public and do not contain any CBI.

Other such information that is provided to EPA as needed by manufacturers that is not tied to a regular reporting schedule is the voluntary Transition Program for Equipment Manufacturers (TPEM).  TPEM is a unique  regulatory flexibility that allows NRCI equipment manu - facturers to continue using engines that comply with the previous set of emission standards ("non - compliant engines") for up to seven years after the new regulations first apply.  This program was also available to NRSI manufacturers for model years 2011-2014.  Manufacturers who voluntarily participate in the program must notify EPA of their intent to participate and provide a final report to EPA with information regarding the engines that were covered under the program. The fact that a manufacturer has notified EPA of their intent to participate in the TPEM program, as well as the subsequent reports collected by EPA, are not confidential information. Table 4 outlines the programs and the industry sectors to which these programs apply.  

                                    Table 4
     Other Manufacturer Compliance Information Not Considered to be CBI *
 
LD
NRSI
Nonroad Evap 
Loco
NRCI
MC-ATV-Snow
HD On-highway
Marine CI
HD Tractors and Vocational Vehicles
Investigation report, defect report, voluntary emission recall report, remedial plan, and quarterly reports 
x
x
x
x
x
x
x
x
x
Transition Program for Equipment Manufacturers (TPEM) notifications and engine and equipment manufacturers' annual reports 
n/a
x
n/a
n/a
x
n/a
n/a
n/a
n/a

* this compliance information is provided by manufacturers to EPA on an "as needed" basis as outlined in the regulations as compared to the information in the tables above which is required to be reported to EPA at  regular intervals as outlined in the applicable regulations (e.g. 90 days after the end of the model year) to demonstrate compliance 

** The TPEM program was available for the NRSI industry for model years 2011-2014.  Although this determination is prospective for 2014 and later model years, TPEM information submitted by the NRSI industry for model years 2011-2013 are also covered by this determination. 

Consistent with the substantiation process of 40 C.F.R. § 2.205, if EPA determines that the disclosure of compliance reports would likely result in substantial competitive harm to a manufacturer, we will determine that the information is exempt from disclosure under 5 U.S.C. 552(b)(4)).  EPA policy requires that any information that is exempt under 5 U.S.C. 552(b)(4)) must be maintained subject to any modification that might arise under 40 CFR  § 2.205(h) or any other requirement of 40 C.F.R. Part 2.
