*** E.O. 12866 Review – Revised Version – Do Not Cite, Quote, or Release During Review 

*** 

6560.50 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 2 

[EPA-HQ-OAR-2009-0924; FRL- ] 

RIN 2060-AQ04 

Confidentiality Determinations for Data Required Under the 

Mandatory Greenhouse Gas Reporting Rule and Amendments to 

Special Rules Governing Certain Information Obtained Under 

the Clean Air Act 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This action finalizes the confidentiality 

determinations for certain data elements required to be 

reported under the Mandatory Greenhouse Gas Reporting Rule. 

This action also finalizes amendments to the Special Rules 

Governing Certain Information Obtained under the Clean Air 

Act, which authorizes EPA to release or withhold as 

confidential reported data under the Mandatory Greenhouse 

Gas Reporting Rule according to the final determinations 

for such data without taking further procedural steps. This 

action does not include final confidentiality 
Page 2 of 178 

determinations for data elements that are in the “Inputs to 

Emission Equations” category.

DATES: This action is effective on [INSERT THE DATE 60

DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL 

REGISTER]. 

ADDRESSES: EPA has established a docket for this action 

under Docket ID No. EPA-HQ-OAR-2009-0924. All documents in 

the docket are listed on the www.regulations.gov website. 

Although listed in the index, some information is not 

publicly available, e.g., confidential business information 

(CBI) or other information whose disclosure is restricted 

by statute. Certain other materials, such as copyrighted 

materials, are not placed on the Internet and are publicly 

available only in hard copy form. Publicly available 

docket materials are available either electronically 

through www.regulations.gov or in hard copy at the Air 

Docket, EPA/DC, EPA West Building, Room 3334, 1301 

Constitution Avenue, NW, Washington, DC 20004. This Docket 

Facility is open from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal holidays. The telephone 

number for the Public Reading Room is (202) 566-1744, and 

the telephone number for the Air Docket is (202) 566-1742. 

FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate 

Change Division, Office of Atmospheric Programs (MC-6207J), 
Page 3 of 178 

Environmental Protection Agency, 1200 Pennsylvania Ave., 

NW., Washington, DC 20460; telephone number: (202) 343-

9263; fax number: (202) 343-2342. For technical 

information and implementation materials, please go to the 

website 

http://www.epa.gov/climatechange/emissions/ghgrulemaking.ht

ml. To submit a question, select Rule Help Center, then 

select Contact Us. 

Regulated Entities. The confidentiality 

determinations and amendment to 40 CFR 2.301 affect 

entities that must submit annual greenhouse gas (GHG) 

reports under 40 CFR part 98. The Administrator determined 

that this action is subject to the provisions of Clean Air 

Act (CAA) section 307(d). See CAA section 307(d)(1)(v) 

(the provisions of CAA section 307(d) apply to “such other 

actions as the Administrator may determine”). Part 98 and 

this action affects fuel and chemical suppliers and direct 

emitters of greenhouse gases (GHGs). Affected categories 

and entities include those listed in Table 1 of this 

preamble: 
Page 4 of 178 

Table 1. Examples of Affected Entities by Category 

Category NAICS Examples of affected facilities 

General 

Stationary 

Fuel 

Combustion 

Sources 

Facilities operating boilers, 

process heaters, incinerators, 

turbines, and internal 

combustion engines: 

321 Manufacturers of lumber and wood 

products. 

322 Pulp and paper mills. 

325 Chemical manufacturers. 

324 Petroleum refineries and 

manufacturers of coal products. 

316, 

326, 339 

Manufacturers of rubber and 

miscellaneous plastic products. 

331 Steel works and blast furnaces. 

332 Electroplating, plating, 

polishing, anodizing, and 

coloring. 

336 Manufacturers of motor vehicle 

parts and accessories. 

221 Electric, gas, and sanitary 

services. 

622 Health services. 

611 Educational services. 

325193 Ethyl alcohol manufacturing 

facilities. 

311611 Meat processing facilities. 

311411 Frozen fruit, juice, and 

vegetable manufacturing 

facilities. 

311421 Fruit and vegetable canning 

facilities. 

Electricity 

Generation 

221112 Fossil-fuel fired electric 

generating units, including 

units owned by Federal and 

municipal governments and units 

located in Indian Country. 

Adipic Acid 

Production 

325199 Adipic acid manufacturing 

facilities. 

Aluminum 

Production 

331312 Primary Aluminum production 

facilities. 

Ammonia 

Manufacturing 

325311 Anhydrous and aqueous ammonia 

manufacturing facilities. 

Cement 

Production 

327310 Portland Cement manufacturing 

plants. 
Page 5 of 178 

Category NAICS Examples of affected facilities 

Ferroalloy 

Production 

331112 Ferroalloys manufacturing 

facilities. 

Glass 

Production 

327211 Flat glass manufacturing 

facilities. 

327213 Glass container manufacturing 

facilities. 

327212 Other pressed and blown glass 

and glassware manufacturing 

facilities. 

HCFC-22 

Production and 

HFC-23 

Destruction 

325120 Chlorodifluoromethane 

manufacturing facilities. 

Hydrogen 

Production 

325120 Hydrogen manufacturing 

facilities. 

Iron and Steel 

Production 

331111 Integrated iron and steel mills, 

steel companies, sinter plants, 

blast furnaces, basic oxygen 

process furnace shops. 

Lead 

Production 

331419 Primary lead smelting and 

refining facilities. 

331492 Secondary lead smelting and 

refining facilities. 

Lime 

Production 

327410 Calcium oxide, calcium 

hydroxide, and dolomitic 

hydrates manufacturing 

facilities. 

Magnesium 

Production 

331419 Primary refiners of nonferrous 

metals by electrolytic methods. 

331492 Secondary magnesium processing 

plants. 

Municipal 

Solid Waste 

Landfills 

562212 Solid waste landfills. 

221320 Sewage treatment facilities. 

Nitric Acid 

Production 

325311 Nitric acid manufacturing 

facilities. 

Petrochemical 

Production 

32511 Ethylene dichloride 

manufacturing facilities. 

325199 Acrylonitrile, ethylene oxide, 

and methanol manufacturing 

facilities. 

325110 Ethylene manufacturing 

facilities. 

325182 Carbon black manufacturing 

facilities. 
Page 6 of 178 

Category NAICS Examples of affected facilities 

Petroleum 

Refineries 

324110 Petroleum refineries. 

Phosphoric 

Acid 

Production 

325312 Phosphoric acid manufacturing 

facilities. 

Pulp and Paper 

Manufacturing 

322110 Pulp mills. 

322121 Paper mills. 

322130 Paperboard mills. 

Silicon 

Carbide 

Production 

327910 Silicon carbide abrasives 

manufacturing facilities. 

Soda Ash 

Manufacturing 

325181 Alkalies and chlorine 

manufacturing facilities. 

212391 Soda ash, natural, mining, 

and/or beneficiation. 

Titanium 

Dioxide 

Production 

325188 Titanium dioxide manufacturing 

facilities. 

Underground 

Coal Mines 

212113 Underground anthracite coal 

mining operations. 

212112 Underground bituminous coal 

mining operations. 

Zinc 

Production 

331419 Primary zinc refining 

facilities. 

331492 Zinc dust reclaiming facilities, 

recovering from scrap and/or 

alloying purchased metals. 

Industrial 

Landfills 

562212 Solid waste landfills. 

221320 Sewage treatment facilities. 

322110 Pulp mills. 

322121 Paper mills. 

322122 Newsprint mills. 

322130 Paperboard mills. 

311611 Meat processing facilities. 

311411 Frozen fruit, juice, and 

vegetable manufacturing 

facilities. 

311421 Fruit and vegetable canning 

facilities. 

Wastewater 

Treatment 

322110 Pulp mills. 

322121 Paper mills. 

322122 Newsprint mills. 

322130 Paperboard mills. 

311611 Meat processing facilities. 
Page 7 of 178 

Category NAICS Examples of affected facilities 

311411 Frozen fruit, juice, and 

vegetable manufacturing 

facilities. 

311421 Fruit and vegetable canning 

facilities. 

325193 Ethanol manufacturing 

facilities. 

Suppliers of 

Coal Based 

Liquids Fuels 

211111 Coal liquefaction at mine sites. 

Suppliers of 

Petroleum 

Products 

324110 Petroleum refineries. 

Suppliers of 

Natural Gas 

and NGLs 

221210 Natural gas distribution 

facilities. 

211112 Natural gas liquid extraction 

facilities. 

Suppliers of 

Industrial 

GHGs 

325120 Industrial gas manufacturing 

facilities. 

Suppliers of 

Carbon Dioxide 

(CO2) 

325120 Industrial gas manufacturing 

facilities. 

Table 1 of this preamble lists the types of entities 

that could be required to report data under Part 98. This 

list is not intended to be exhaustive, but rather to 

provide a guide for readers regarding facilities and 

suppliers likely to be affected by this action. Other 

types of facilities and suppliers not listed in the table 

may also be subject to reporting requirements. Many 

facilities and suppliers are subject to the reporting 

requirements in multiple subparts of Part 98. To determine 

whether you are affected by this action, you should 

carefully examine the applicability criteria found in 40 
Page 8 of 178 

CFR part 98, subpart A. If you have questions regarding 

the applicability of this action to a particular facility, 

consult the person listed in the preceding FOR FURTHER 

INFORMATION CONTACT section of this preamble. 

Judicial Review. Under section 307(b)(1) of the CAA, 

judicial review of any of the final confidentiality 

determinations and rule amendment made in this final rule 

is available only by filing a petition for review in the 

U.S. Court of Appeals for the District of Columbia Circuit 

by [INSERT THE DATE 60 DAYS AFTER PUBLICATION IN THE 

FEDERAL REGISTER]. Under CAA section 307(d)(7)(B), only an 

objection to this final rule that was raised with 

reasonable specificity during the period for public comment 

can be raised during judicial review. This section also 

provides a mechanism for us to convene a proceeding for 

reconsideration “[i]f the person raising an objection can 

demonstrate to EPA that it was impracticable to raise such 

objection within [the period for public comment] or if the 

grounds for such objection arose after the period for 

public comment (but within the time specified for judicial 

review) and if such objection is of central relevance to 

the outcome of this rule.” Any person seeking to make such 

a demonstration to us should submit a Petition for 

Reconsideration to the Office of the Administrator, 
Page 9 of 178 

Environmental Protection Agency, Room 3000, Ariel Rios 

Building, 1200 Pennsylvania Ave., NW., Washington, DC 

20004, with a copy to the person listed in the preceding 

FOR FURTHER INFORMATION CONTACT section, and a copy to the 

Associate General Counsel for the Air and Radiation Law 

Office, Office of General Counsel (Mail Code 2344A), 

Environmental Protection Agency, 1200 Pennsylvania Ave., 

NW., Washington, DC 20004. Under CAA section 307(b)(2), 

the confidentiality determinations and rule amendments 

established by this action may not be challenged separately 

in any civil or criminal proceedings brought by EPA to 

enforce these requirements. 

Acronyms and Abbreviations. The following acronyms 

and abbreviations are used in this document. 

BAMM Best Available Monitoring Methods 

CAA Clean Air Act 

CBI confidential business information 

CEMS continuous emission monitoring system(s) 

CFR Code of Federal Regulations 

EIA Energy Information Administration 

EPA U.S. Environmental Protection Agency 

FR Federal Register 

GHG greenhouse gas 

GHGRP Greenhouse Gas Reporting Program 

LDC local distribution company 

NEI National Emissions Inventory 

NAICS North American Industry Classification System 

NGO non-governmental organization 

RFA Regulatory Flexibility Act 

UMRA Unfunded Mandates Reform Act 

U.S. United States 
Page 10 of 178 

TABLE OF CONTENTS 

I. Background

A. Background on the Final Rule

B. Approach to Making Confidentiality Determinations

C. Subparts Covered By This Final Rule

II. Confidentiality Determinations for Data Required by 

the Mandatory Greenhouse Gas Reporting Rule, Responses to 

Public Comments, and Final Rule Amendment

A. Final Confidentiality Determinations

B. Direct Emitters

C. Suppliers

D. Amendment to 40 CFR Part 2 Addressing Treatment of Part 

98 Data Elements

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 131132: Federalism

G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks

H. Executive Order 13211: Actions that Significantly 

Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Populations

K. Congressional Review Act

I. Background 

A. Background on the Final Rule

On October 30, 2009, EPA published the Mandatory 

Greenhouse Gas Reporting Rule for collecting information 

regarding greenhouse gas (GHG) emissions from a broad range 

of industry sectors (74 FR 56260). Under 40 CFR part 98 of 

the rule and its subsequent amendments (hereinafter 

referred to as Part 98), EPA will collect data from certain 
Page 11 of 178 

facilities and suppliers above specified thresholds. The 

data to be reported includes information on GHG emissions 

and GHGs supplied, including information necessary to 

characterize, quantify, and verify the GHG emissions and 

GHGs supplied data. In the preamble to Part 98, we stated, 

“Through a notice and comment process, we will establish 

those data elements that are ‘emissions data’ and therefore 

[under CAA section 114(c)] will not be afforded the 

protections of CBI. As part of that exercise, in response 

to requests provided in comments, we may identify classes 

of information that are not emissions data, and are CBI” 

(74 FR 56287, October 30, 2009). 

On July 7, 2010, EPA proposed confidentiality 

determinations for Part 98 data elements and proposed 

amending EPA’s regulation for handling confidential 

business information to add specific procedures for the 

treatment of Part 98 data (75 FR 39094; hereinafter 

referred to as the “July 7, 2010 CBI proposal”). These 

proposed amendments to 40 CFR part 2 would allow EPA to 

release Part 98 data that are determined to be emission 

data or non-CBI upon finalizing the confidentiality status 

of these data. The amendments also set forth procedures 

for treatment of information in Part 98 determined to be 
Page 12 of 178 

CBI. The proposed procedures are similar to or consistent 

with the existing 40 CFR part 2 procedures. 

The July 7, 2010 CBI notice proposed confidentiality 

determinations for the data elements in the subparts that 

were included in the 2009 final Part 98 rule (see 74 FR 

56260, October 30, 2009), in four subparts that were 

finalized in July 2010 (see 75 FR 39736, July 12, 2010), 

and in seven new subparts that had been proposed but not 

yet finalized as of July 7, 2010 (see 75 FR 18576, 75 FR 

18608, and 75 FR 18652, April 12, 2010). The July 7, 2010 

CBI proposal also covered proposed changes to the reporting 

requirements for some of the 2009 final Part 98 subparts. 

These changes had been proposed in two separate rulemakings 

(see 75 FR 18455, April, 12, 2010; and 75 FR 33950, June 15, 

2010). 

On July 20, 2010, EPA issued another proposed 

rulemaking that changed the description of some reported 

data elements and required reporting of some new data 

elements (75 FR 48744; hereinafter referred to as the “July 

20, 2010 revisions proposal”). These changes were 

subsequently finalized on December 17, 2010 (75 FR 79092). 

Also on July 20, 2010, EPA issued a supplemental CBI 

proposal that proposed confidentiality determinations for 

the new and revised data elements that were proposed in the 
Page 13 of 178 

July 20, 2010 revisions notice (75 FR 43889; hereinafter 

referred to as the “July 20, 2010 supplemental CBI 

proposal.) 

In this action, EPA is finalizing confidentiality 

determinations for Part 98 data elements with certain 

exceptions that are discussed in more detail below. The 

Part 98 data elements covered by this action are described 

in Section I.C of this preamble. EPA is also finalizing 

the amendments to EPA’s regulation for handling 

confidential business information. 

B. Approach to Making Confidentiality Determinations

In the July 7, 2010 CBI proposal, we described the 

methodology and rationale used for making confidentiality 

determinations. This methodology consisted of a two step 

process in which we first grouped Part 98 data elements 

into 22 data categories in all (11 direct emitter data 

categories and 11 supplier data categories) with each of 

the 22 data categories containing data elements that are 

similar in type or characteristics. EPA then proposed 

confidentiality status based on (1) whether the data 

qualify as emission data as defined in 40 CFR 

2.301(a)(2)(i); and (2) for data that do not qualify as 

emission data, whether they qualify for confidential 

treatment under 40 CFR 2.208(e)(1). In the July 7, 2010 
Page 14 of 178 

CBI proposal, EPA proposed that only five of the data 

categories meet the definition of emission data (see Table 

2 of the preamble for the July 7, 2010 CBI proposal for the 

list of the data categories proposed as emission data). 

We proposed that the remaining six direct emitter data 

categories and 11 supplier data categories did not meet the 

definition of emission data in 40 CFR 2.301(a)(2)(i). We 

then evaluated, on a category basis, whether the data 

elements in these 17 data categories quality as trade 

secret or confidential business information under CAA 

section 114(c) (hereinafter referred to collectively as 

CBI).1 In particular, we followed EPA’s criteria under 40 

CFR 2.208(e)(i) to determine whether data qualifies as CBI, 

focusing on whether disclosure of the data in each category 

would be likely to cause “substantial harm to the 

business’s competitive position.” We evaluated the data 

elements by category and proposed confidentiality 

determinations that applied to all data elements within 

each category, except for three supplier data categories,2

where we proposed confidentiality determinations for 

individual data elements within the category. 

 

1 EPA has interpreted CAA section 114(c) to afford confidential 

treatment to both trade secrets and confidential business information. 

See 40 FR 21987, 21990 (May 20, 1975). 

2 GHGs Reported, Production/Throughput Quantities and Composition, and 

Unit/Process Operating Characteristics. 
Page 15 of 178 

Lists of the proposed data categories and EPA’s 

proposed determinations are shown in Table 2 and Table 3 of 

the preamble to the July 7, 2010 CBI proposal. Further 

information on EPA’s general approach and decision process 

is presented in Section I.C of the preamble to the July 7, 

2010 CBI proposal. Descriptions of the data categories and 

detailed rationales for the proposed confidentiality 

determinations for each data category are presented in 

Section II.C (for direct emitters) and Section II.D (for 

suppliers) of the preamble for the July 7, 2010 CBI 

proposal and Section I.C. of the preamble for the July 20, 

2010 supplemental CBI proposal. 

C. Subparts Covered By This Final Rule

This final rule addresses the confidentiality of data 

elements reported under the following subparts of 40 CFR 

part 98, promulgated on October 30, 2009 (74 FR 56260)(as 

amended in 2010), excluding those data elements in the 

Inputs to Emission Equation category identified in the 

“Interim Final Regulation Deferring the Reporting of 

Certain Data Elements Required Under the Mandatory 

Reporting of Greenhouse Gases Rule” (75 FR 81338, December 

27, 2010). 

• Subpart A, General Provisions (as amended by 75 FR 

39736, July 12, 2010; 75 FR 66434, October 28, 2010; 

and 75 FR 79092, December 17, 2010); 
Page 16 of 178 

• Subpart C, General Stationary Fuel Combustion Sources 

(as amended by 75 FR 79092, December 17,2010); 

• Subpart D, Electricity Generation (as amended by 75 FR 

79092, December 17,2010); 

• Subpart E, Adipic Acid Production (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart F, Aluminum Production as amended by 75 FR 

79092, December 17,2010); 

• Subpart G, Ammonia Manufacturing (as amended by 75 FR 

79092, December 17,2010); 

• Subpart H, Cement Production (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart K, Ferroalloy Production (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart N, Glass Production (as amended by75 FR 66434, 

October 28, 2010); 

• Subpart O, HCFC-22 Production and HFC-23 Destruction 

(as amended by 75 FR 66434, October 28, 2010); 

• Subpart P, Hydrogen Production (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart Q, Iron and Steel Production (as amended by 75 

FR 66434, October 28, 2010); 

• Subpart R, Lead Production; 

• Subpart S, Lime Manufacturing (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart U, Miscellaneous Uses of Carbonate; 

• Subpart V, Nitric Acid Production (as amended by 75 FR 

66434, October 28, 2010 and 75 FR 79092, December 17, 

2010); 

• Subpart X, Petrochemical Production (as amended by 75 

FR 79092, December 17, 2010); 

• Subpart Y, Petrochemical Production (as amended by 75 

FR 79092, December 17, 2010); 

• Subpart Z, Phosphoric Acid Production (as amended by 

75 FR 66434, October 28, 2010); 

• Subpart AA, Pulp and Paper Manufacturing; 

• Subpart BB, Silicon Carbide Production; 
Page 17 of 178 

• Subpart CC, Soda Ash Manufacturing (as amended by 75 

FR 66434, October 28, 2010); 

• Subpart EE, Titanium Dioxide Production (as amended by 

75 FR 66434, October 28, 2010); 

• Subpart GG, Zinc Production (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart HH, Municipal Solid Waste Landfills (as 

amended by 75 FR 66434, October 28, 2010); 

• Subpart LL, Suppliers of Coal-based Liquid Fuels (as 

amended by 75 FR 79092, December 17, 2010); 

• Subpart MM, Suppliers of Petroleum Products (as 

amended by 75 FR 66434, October 28, 2010); 

• Subpart NN, Suppliers of Natural Gas and Natural Gas 

Liquids (as amended by 75 FR 66434, October 28, 2010); 

• Subpart OO, Suppliers of Industrial Greenhouse Gases 

(as amended by 75 FR 79092, December 17,2010); and 

• Subpart PP, Suppliers of Carbon Dioxide (as amended by 

75 FR 79092, December 17, 2010). 

In addition, this final rule addresses the 

confidentiality of data elements reported under the 

following subparts promulgated on July 12, 2010 (75 FR 

39736, July 12, 2010), excluding those data elements in the 

Inputs to Emission Equations category identified in the 

proposed “Change to the Reporting Date for Certain Data 

Elements Required Under the Mandatory Reporting of 

Greenhouse Gases Rule” (75 FR 81350, December 27, 2010). 

• Subpart T, Magnesium Production (75 FR 39736, July 12, 

2010); 

• Subpart FF, Underground Coal Mines (75 FR 39736, July 

12, 2010); 

• Subpart II, Wastewater Treatment (75 FR 39736, July 

12, 2010); and 
Page 18 of 178 

• Subpart TT, Industrial Landfills (75 FR 39736, July 

12, 2010). 

II. Confidentiality Determinations for Data Required by 

the Mandatory Greenhouse Gas Reporting Rule, Responses to 

Public Comments, and Final Rule Amendment 

A. Final Confidentiality Determinations

In this action, EPA is finalizing the confidentiality 

determinations for the part 98 data elements specified in 

Section I.C. of this preamble. Specifically, EPA is 

finalizing the category assignments for these data 

elements, the category-specific confidentiality 

determinations (which apply to all data elements assigned 

to such categories) and, for categories without categoryspecific confidentiality determinations, the determinations 

for the individual data elements within those data 

categories. The final confidentiality determinations for 

individual data categories are summarized in Table 2 of 

this preamble for direct emitters and Table 3 of this 

preamble for suppliers. As indicated in the tables, EPA 

made confidentiality determinations by data category for 

nine of the direct emitter data categories and eight of the 

supplier data categories. For the remaining two direct 

emitter data categories (Unit/Process Static Operating 

Characteristics that are Not Inputs to Emission Equations 
Page 19 of 178 

and Unit/Process Operating Characteristics that are not 

Inputs to Emission Equations) and three supplier data 

categories (GHGs Reported, Production/Throughput Quantities 

and Composition, and the Unit/Process Operating 

Characteristics), EPA made confidentiality determinations 

for each individual data element rather than a single 

determination for the data category as a whole. Because 

the confidentiality determinations were made for each 

individual data element, these categories contain both CBI 

and non-CBI data elements. 

The data category assignments for the part 98 data 

elements specified in section I.C of the preamble and their 

final confidentiality determinations are provided in the 

memorandum “Final Data Category Assignments and 

Confidentiality Determinations for Part 98 Reporting 

Elements” (see Docket EPA-HQ-OAR-2009-0924 and the website, 

http://www.epa.gov/climatechange/emissions/ghgrulemaking.ht

ml). 

Table 2. Summary of Final Confidentiality Determinations 

for Direct Emitter Data Categories 

Data Category 

Confidentiality Determination for 

Data Elements in Each Category 

Emission 

Dataa

Data That 

Are Not 

Emission 

Data and 

Not CBI 

Data That 

Are Not 

Emission 

Data But 

Are CBIb

Facility and Unit 

Identifier Information 

X 
Page 20 of 178 

Data Category 

Confidentiality Determination for 

Data Elements in Each Category 

Emission 

Dataa

Data That 

Are Not 

Emission 

Data and 

Not CBI 

Data That 

Are Not 

Emission 

Data But 

Are CBIb

Emissions X 

Calculation Methodology and 

Methodological Tier 

X 

Data Elements Reported for 

Periods of Missing Data 

that are Not Inputs to 

Emission Equations 

X 

Unit/Process Static 

Characteristics that are 

Not Inputs to Emission 

Equations 

X

c Xc

Unit/Process Operating 

Characteristics that are 

Not Inputs to Emission 

Equations 

X

c Xc

Test and Calibration 

Methods 

X 

Production/Throughput Data 

that are Not Inputs to 

Emission Equations 

X 

Raw Materials Consumed that 

are Not Inputs to Emission 

Equations 

X 

Process-Specific and Vendor 

Data Submitted in BAMM 

Extension Requests 

X 

a Under CAA section 114, emission data is not entitled to confidential treatment. See 

Section I.C of the preamble for the July 7, 2010 CBI proposal (75 FR 39094, July 7, 2010) 

for further discussion of CAA section 114 requirements. The term emission data is 

defined at 40 CFR 2.301(a)(2)(i). 

b

 Section 114(c)of the CAA affords confidential treatment to data (except emission data) 

that are considered CBI. 

c

EPA did not make a category-specific confidentiality determination for this category but 

instead made determination for individual data elements. The data category contains data 

elements determined to be CBI and data elements determined to be non-CBI. 
Page 21 of 178 

Table 3. Summary of Final Confidentiality Determinations 

for Supplier Data Categories 

Data Category 

Confidentiality Determinations for Data 

Elements in Each Category 

Emission 

Dataa

Data That Are 

Not Emission 

Data and Not 

CBI 

Data That Are 

Not Emission 

Data But Are 

CBIb

GHGs Reported 

X

c Xc

Production/ 

Throughput 

Quantities and 

Composition 

X

c

X

c

Identification 

Information X 

Unit/Process 

Operating 

Characteristics 

 

X

c

X

c

Calculation, Test, 

and Calibration 

Methods 

X 

Data Elements 

Reported for Periods 

of Missing Data that 

are Not Related to 

Production/ 

Throughput or 

Materials Received 

X 

Emission Factors X 

Amount and 

Composition of 

materials received 

X 

Data Elements 

Reported for Periods 

of Missing Data That 

are Related to 

Production/ 

Throughput or 

Materials Received 

X 

Supplier Customer 

and Vendor 

Information 

X 

Process-Specific and 

Vendor Data 

Submitted in BAMM 

X 
Page 22 of 178 

Data Category 

Confidentiality Determinations for Data 

Elements in Each Category 

Emission 

Dataa

Data That Are 

Not Emission 

Data and Not 

CBI 

Data That Are 

Not Emission 

Data But Are 

CBIb

Extension Requests 

a Under CAA section 114, emission data is not entitled to confidential 

treatment. See Section I.C of the preamble for the July 7, 2010 CBI 

proposal (75 FR 39094, July 7, 2010) for further discussion of CAA 

section 114 requirements. The term emission data is defined at 40 CFR 

2.301(a)(2)(i). 

b Section 114(c) of the CAA affords confidential treatment to data 

(except emission data) that are considered CBI. 

c EPA did not make a category-specific confidentiality determination for this category but 

instead made determination for individual data elements. The data category contains data 

elements determined to be CBI and data elements determined to be non-CBI. 

1. Major Changes to the Scope and Determinations for 

Particular Data Categories 

This section provides a summary of major changes to 

the scope of this action as well as changes to the 

determinations for particular data categories. For a 

discussion of changes to the confidentiality determinations 

for particular data elements, see Section II.B of this 

preamble for direct emitters and Section II.C of this 

preamble for suppliers. 

• Although we proposed determinations for the data 

elements in the following subparts, we have decided 

not to make a final determinations for the data 

elements in these subparts in this action for the 

reasons specified in Section II.A.3 of this preamble: 

– Subpart I, Electronics Manufacturing; 

– Subpart L, Fluorinated Gas Production; 

– Subpart W, Petroleum and Natural Gas Systems; 

– Subpart DD, Sulfur Hexafluoride (SF6) and 

Perfluorocarbons (PFCs) from Electrical Equipment at 

an Electric Power System; 
Page 23 of 178 

– Subpart QQ, Importers and Exporters of Fluorinated 

Greenhouse Gases Contained in Pre-Charged Equipment 

or Closed-Cell Foams; 

– Subpart RR, Geologic Sequestration of Carbon 

Dioxide; 

– Subpart SS, Sulfur Hexafluoride and PFCs from 

Electrical Equipment Manufacture or Refurbishment; 

and 

– Subpart UU, Injection of Carbon Dioxide. 

• We are finalizing CBI determinations for 27 data 

elements that were added to Part 98 in response to 

comment on the three proposed revisions notices. The 

proposed revisions were addressed in the July 2010 CBI 

proposals. The 27 data elements are the same types of 

data as those data elements that were included in the 

CBI proposals and therefore are given the same 

confidentiality determinations in this final action. 

For a more detailed explanation, please see Section 

II.A.3 of this preamble. 

• Although we proposed a determination for the direct 

emitter data category Inputs to Emission Equations, we 

have decided not to make a final determination for 

this data category in this action for the reasons 

specified in Section II.A.4 of this preamble. 

• Although we proposed category-wide determinations for 

the following direct emitter data categories, in this 

action we have made final determinations for 

individual data elements in these categories for the 

reasons specified in Section II.A.5 of this preamble: 

• Unit/Process Static Operating Characteristics that 

are Not Inputs to Emission Equations. 

• Unit/Process Operating Characteristics that are Not 

Inputs to Emission Equations. 

Following is a summary of the major comments and 

responses regarding the scope of this action, EPA’s 

approach and rationale for making confidentiality 

determinations, and other overarching issues. Responses to 

major comments on determinations for the direct emitter 
Page 24 of 178 

data elements and supplier data elements are included in 

Sections II.B.2 through II.B.10 (direct emitter data 

categories) and II.C.2 through II.C.13 (supplier data 

categories) of this preamble. Responses to comments on the 

proposed amendments to 40 CFR part 2 are included in 

Section II.D of this preamble. Other comments and 

responses thereto can be found in “Proposed Confidentiality 

Determinations and Data Handling Procedures for Part 98 

Data: Responses to Public Comments” in Docket EPA-HQ-OAR2009-0924 and on the website, 

http://www.epa.gov/climatechange/emissions/ghgrulemaking.ht

ml. 

2. General Approach to Making CBI Determinations.

Comment: Many commenters supported EPA’s approach of 

grouping together similar data elements and making 

determinations based on their similar characteristics. 

Several commenters stated that the approach is reasonable 

and that the proposed data categories are appropriate. 

Many commenters agreed with EPA that this approach would 

speed the publication of data and reduce both the 

administrative burden on EPA and the amount of paperwork 

for reporters submitting their annual reports. Some 

commenters stated that this approach would benefit 

reporters of data determined to be CBI, as it would prevent 
Page 25 of 178 

competitors from forcing them to defend data on a case-bycase basis in Agency CBI proceedings. Another commenter 

stated that EPA’s approach would provide certainty to the 

regulated community regarding which specific data elements 

will be afforded protection from disclosure. This 

commenter believed that an ad hoc approach could lead to 

inconsistent CBI determinations, both for the same data 

element in a given subpart and for similar data elements in 

different subparts. This commenter also stated that some 

small businesses may be unfamiliar with the Agency’s caseby-case confidentiality claim provisions and would be 

placed at a disadvantage to competitors who were familiar 

with the case-by-case process. 

Although many commenters supported EPA’s approach, 

other commenters argued that EPA should allow reporters to 

submit case-by-case CBI claims with their annual reports. 

Some commenters questioned EPA's authority to make 

category-based confidentiality determinations. Several 

commenters argued that EPA should evaluate all CBI claims 

on a case-by-case basis, while others asserted that EPA 

should evaluate some claims this way. Some commenters 

argued that EPA’s approach to making CBI determinations for 

Part 98 data was inconsistent with other EPA programs that 

evaluate CBI claims on a case-by-case basis. Several 
Page 26 of 178 

commenters argued that case-by-case determinations provide 

greater flexibility to allow the proper consideration of 

facility-specific issues in context and that category-wide 

CBI determinations would not allow for a thorough 

evaluation of the potential economic impacts on individual 

facilities from the disclosure of sensitive information. 

Some commenters stated that case-by-case determinations are 

essential because each facility’s circumstances are unique. 

Others argued that retaining a case-by-case determination 

option would not preclude EPA from making the proposed 

category-based CBI determinations for some of the data 

elements. 

Many commenters asserted that they preferred case-bycase determinations despite the additional work and expense 

it would require. These commenters stated that individual 

reporters should be allowed to decide whether the cost and 

effort involved in preparing a confidentiality claim was 

worthwhile. Some commenters stated that this approach 

would deprive regulated entities of a fair and reasonable 

procedure to document CBI claims. Other commenters stated 

that EPA’s approach infringed upon the rights of regulated 

entities by imposing presumptive CBI determinations and not 

allowing individual entities to submit their own CBI 

claims. A few commenters argued that EPA was effectively 
Page 27 of 178 

preventing reporters from rebutting CBI determinations for 

Part 98 data. 

Response: EPA agrees with commenters who stated that 

category-based CBI determinations reduce the burden on the 

regulated community. EPA also agrees with comments that 

category-based CBI determinations allow for timely 

publication of emission data and data not otherwise 

eligible for confidential treatment. If EPA allowed 

individual CBI claims, EPA would likely receive a 

significant number of claims because of the large number of 

individual reporters required to submit annual reports 

(more than 10,000) and the large number of different data 

elements (more than 1,900). Facilities would likely make 

multiple CBI claims that would each need to be 

substantiated. Given the time and resources required for 

facilities to prepare the claims and for EPA to evaluate 

each individual CBI claim, timely publication of data would 

be difficult to achieve. 

We disagree with commenters who stated that EPA does 

not have the authority to make category-based CBI 

determinations. While EPA generally makes CBI 

determinations on a case-by-case basis in accordance with 

40 CFR part 2, the provisions of 40 CFR 2.207 (Class 

Determinations) allow EPA to make category-based CBI 
Page 28 of 178 

determinations where it would serve a useful purpose (40 

CFR 2.207(a)(3)) and the data in a category share common 

characteristics that result in identical treatment of all 

data in the category (40 CFR 207(a)(2)). As discussed 

above, EPA concluded that the categorical approach was 

warranted as it will result in the timely release of data 

while also reducing the burden on reporting entities to 

substantiate multiple CBI claims for each annual report. 

EPA also believes that the categorical approach is 

appropriate in this case because there are over 1,900 Part 

98 data elements included in this action and many of them 

share common characteristics. Consistent with the 40 CFR 

2.207, EPA issued the July 2010 CBI proposals containing 

categorical confidentiality determinations for part 98 

data, and provided the public an opportunity to comment. 

EPA specifically sought comment on whether the data 

categories were appropriate or if they were too broad or 

too narrow. Based on the comments received, of the 22 data 

categories proposed, EPA concluded that categorical 

determinations were not appropriate for five data 

categories. For these five data categories, EPA made 

confidentiality determinations for individual data 

elements. 
Page 29 of 178 

EPA also disagrees with the comments that the approach 

taken in this final action is inconsistent with the 

handling of CBI claims under other EPA programs or that the 

approach is contrary to regulatory provisions for CBI. As 

we explained in the July 7, 2010 CBI proposal, our CBI 

determinations were made using the definition of emission 

data at 40 CFR 2.301(a)(2)(i). EPA has used this 

definition of emission data for over 20 years to make 

decisions on individual case-by-case CBI claims. For data 

that did not meet the definition of emission data, we used 

the existing criteria from the CBI regulations at 40 CFR 

2.208 evaluate and determine the confidentiality of the 

Part 98 data elements in this action. 

We further disagree with the comment that facilityspecific issues cannot be addressed through the categorybased approach taken in this final action. In the July 

2010 CBI proposals, we specifically sought comment on 

facility-specific situations in which CBI protection should 

be provided. We have received comments on facilityspecific issues and addressed those comments in the 

relevant sections of this preamble. Specifically, for the 

handful of data elements where commenters were able to 

demonstrate that conditions varied significantly among 

reporters, EPA decided not to make a final confidentiality 
Page 30 of 178 

determination for the particular data element in this final 

action. 

We also disagree with the commenters who claimed that 

EPA should provide reporters a case-by-case determination 

option. As mentioned above, we have addressed the comments 

on facility-specific issues in this final action. We 

received no specific comment or information indicating, nor 

do we have reason to believe, that reporting facilities 

would have any new or different information to substantiate 

their CBI claims at the time they submit data beyond that 

information available to them during the public comment 

period on the CBI proposals. We therefore do not believe 

that a case-by-case determination at the time of data 

submittal would result in a different confidentiality 

determination. 

We further disagree with commenters who stated that 

EPA’s approach imposed presumptive CBI determinations 

without allowing businesses a fair and reasonable procedure 

to document CBI claims. In July 2010, we proposed CBI 

determinations for Part 98 data elements and provided 

stakeholders as well as the general public an opportunity 

to comment on data elements as well as data categories that 

might qualify for CBI protection and made it clear that 

this was the opportunity for reporters to substantiate 
Page 31 of 178 

their CBI claims. For example, in Section I.E of the 

preamble to the July 7, 2010 CBI proposal, we stated that 

“this rulemaking provides the reporting businesses an 

opportunity to justify any confidentiality claim they may 

have for the data they are required to submit” and in 

Section II.B of the July 7, 2010 CBI preamble we 

specifically solicited comment on the proposed data 

categories, confidentiality determinations, and any “unique 

circumstances . . . that would warrant making subpartspecific confidentiality determinations.” Stakeholders 

were given a 60-day comment period to review the proposed 

determinations and prepare documentation substantiating any 

CBI claims. We consider the 60-day comment period to be 

more than adequate, especially in light of the 15 days 

businesses have under the existing CBI regulations to 

respond to requests for information substantiating a CBI 

claim (see 40 CFR 2.204(e)). During the comment period, 

the reporting facilities were able to consider the Agency’s 

proposed confidentiality determinations in preparing their 

CBI claims and supporting documentation; businesses do not 

have such insight into EPA’s likely positions when 

substantiating CBI claims on a case-by-case basis under the 

existing CBI regulations that apply to non-part 98 data. As 

shown in this notice, EPA considered and addressed the 
Page 32 of 178 

comments received in finalizing the confidentiality 

determinations in this action. 

Finally, we disagree with commenters who argued that 

the approach we selected prevents facilities from rebutting 

EPA’s determinations. By issuing the CBI proposals for 

public comment, the Agency already gave the reporting 

facilities an opportunity to rebut the Agency’s proposed 

confidentiality determinations. In contrast, under the 

existing CBI regulations that apply to non-part 98 data, 

businesses would not know of EPA’s position when 

substantiating CBI claims and therefore would not have a 

rebuttal opportunity in its substantiation. Further, as 

discussed in more detail in the Judicial Review section 

above, the confidentiality determinations made in this 

final action are subject to judicial review under section 

307(b) of the CAA, thereby offering reporters another 

opportunity to rebut the Agency’s determination. 

3. Scope of the CBI Proposal. 

Comment: In the July 7, 2010 CBI proposal, we 

included data elements from seven new subparts that had 

been proposed but not yet finalized (i.e., subparts I, L, 

W, DD, SS, RR,3 and QQ). These seven subparts were 

 

3 The reporting rules for CO2 injection and sequestration were initially 

proposed under a single subpart. However, EPA later decided to 
Page 33 of 178 

subsequently finalized in three separate rulemakings (see 

75 FR 74458, November 30, 2010; 75 FR 74774, December 1, 

2010; and 75 FR 75060, December 1, 2010). During the 

comment period for the CBI proposal, a few commenters 

recommended that EPA not finalize confidentiality 

determinations for data elements from the seven proposed 

subparts until after EPA finalized those subparts. These 

commenters expressed concern that data elements in the 

finalized subparts would differ from those in the proposed 

subparts. The commenters therefore suggested that EPA not 

finalize the CBI determinations for data elements in these 

seven subparts without providing the public with 

opportunity to comment on the confidentiality 

determinations for any new data elements that might be 

added when these subparts were finalized. 

The July 2010 CBI proposals also included 

confidentiality determinations for new and revised data 

elements that were proposed in three Part 98 revision 

notices (see 75 FR 18455, April, 12, 2010, 75 FR 33950, 

June 15, 2010 and 75 FR 48744, August 11, 2010). One 

commenter suggested that EPA allow stakeholders to submit 

comments on the CBI determinations for these data elements 

 

separate subpart RR into two subparts: Geologic Sequestration of Carbon 

Dioxide (subpart RR) and Injection of Carbon Dioxide (subpart UU). 
Page 34 of 178 

after EPA finalized the Part 98 revision notices. The 

commenter did not identify the specific notice or proposed 

data elements that were of concern. 

Response: EPA has decided to undertake a separate 

action to determine the confidentiality status for data 

elements reported under subparts I, L, W, DD, SS, RR, UU, 

and QQ. As anticipated by some of the commenters, we made 

significant changes (both in number and substance) to the 

reporting requirements between proposal and finalization of 

these subparts. For instance, we added approximately 300 

new data elements. Further, because EPA made substantive 

revisions to the subparts in response to comment (e.g., 

revisions to the measurement and calculation 

methodologies), the revised and added data elements differ 

significantly from the data elements that were included in 

the July CBI proposal for these subparts. In light of the 

above, we have decided to re-propose confidentiality 

determinations for the data elements in subparts I, L, W, 

DD, SS, RR, UU, and QQ. We plan to issue this re-proposal 

and finalize the confidentiality determinations for the 

data elements before the March 31, 2012 reporting deadline 

for these subparts.4 

 

4 Facilities subject to 40 CFR part 98, subpart RR must submit 

requests for exemption as a Research and Development Project or their 

proposed Monitoring, Reporting and Verification Plans in 2011. Since 
Page 35 of 178 

However, EPA disagrees with the commenter who argued 

that EPA needed to allow additional time for comments on 

the July CBI proposals after finalization of the three 

proposed revisions to part 98 covered by the CBI proposals 

(i.e., those proposed in 75 FR 18455, April, 12, 2010, 75 

FR 33950, June 15, 2010 and 75 FR 48744, August 11, 2010). 

The July 2010 CBI proposals included all data elements that 

were either revised or added in these proposed amendments. 

The final amendments made minor changes to certain proposed 

data elements, deleted data elements, and added 27 new data 

elements. A list of the new, revised, and deleted data 

elements are also provided in the memorandum “Final Data 

Category Assignments and Confidentiality Determinations for 

Part 98 Reporting Data” in Docket EPA-HQ-OAR-2009-0924 and 

on EPA’s website, 

http://www.epa.gov/climatechange/emissions/CBI.html. Most 

of the changes to the reported data elements are editorial 

in nature (e.g., clarifications to the existing 

requirements, changes to the rule citation, or corrections 

 

these documents likely will be submitted before the final 

confidentiality determinations for subpart RR are made, EPA will 

evaluate individual CBI claims regarding these two submittals on a 

case-by-case basis, in accordance with the existing CBI regulations in 

40 CFR part 2, subpart B, either upon EPA’s receipt of these documents 

or upon receipt of a public request for the documents. For additional 

information regarding these data elements, see 75 FR 75060, December 1, 

2011. 
Page 36 of 178 

to cross-references) and, as revised, did not result in 

changes to the data category assignment or CBI 

determination for these data elements. 

Although the July 2010 CBI proposals did not 

specifically address the 27 new data elements that were 

added when EPA finalized these three revision notices, the 

CBI proposals included proposed confidentiality 

determinations for data elements that are of the same types 

as these new data elements. Having proposed and sought 

comment on the confidentiality determinations and 

supporting rationales for the same types of data in the CBI 

proposals, EPA does not believe that additional time is 

necessary for comment on these 27 data elements.5 Based on 

the comments received, we are able to include in this 

action final confidentiality determinations for these data 

elements consistent with the final determinations for the 

same types of data elements. Specifically, for each of the 

27 data elements, we have identified the same type of data 

elements that were included in the July 2010 CBI proposals. 

We have assigned each of the 27 new data elements to the 

category with the same type of data elements, and applied 

 

5 Although commenters did not request that EPA re-propose 

confidentiality determinations for these data elements, for the same 

reason stated above, we believe that a proposed confidentiality 

determination for these 27 data elements is not necessary. 
Page 37 of 178 

the final confidentiality determinations for the assigned 

category to the new data element. 

Where a new data element is the same type as a data 

element for which EPA has made an individual 

confidentiality determination (as opposed to a categorical 

determination), EPA has made the same individual 

determination for such new data element. The 27 data 

elements, their final CBI determinations, and rationales 

for these determinations (including examples of the same 

types of data elements covered in the July 2010 CBI 

proposals) are discussed in detail in Section II.B of this 

preamble for direct emitter source categories and Section 

II.C of this preamble for supplier source categories. 

4. Inputs to Emission Equations Data Category

Comment: EPA received many comments from industry and 

other stakeholders regarding our July 7, 2010 CBI proposed 

determination that data elements in the Inputs to Emission 

Equations category are emission data, as defined in 40 CFR 

2.301(a)(2)(i,)), that are ineligible for confidential 

treatment. Many commenters from industry disagreed with 

this determination. These commenters were concerned that 

public availability of these data elements would harm their 

competitive position. Other commenters supported our 

proposal and stated that transparency was important for 
Page 38 of 178 

building public confidence in the accuracy of the reported 

data and for enabling meaningful public comment on any 

future Climate Change policy. 

Response: In the July 2010 CBI proposals, EPA proposed 

that the data elements in the Inputs to Emission Equations 

category are emission data under 40 CFR 2.301(a)(2)(i). 

Under the Clean Air Act section 114(c), EPA cannot protect 

emission data as confidential business information. EPA 

received comments raising serious concerns regarding 

potential harmful consequences from public availability of 

these data elements. EPA concluded that some of these 

comments warrant more extensive evaluation. For this 

reason, EPA decided not to finalize the confidentiality 

determination for the data elements in the direct emitter 

data category Inputs to Emission Equations in this action. 

Instead, we recently published a “Call for Information: 

Information on Inputs to Emission Equations under the 

Mandatory Reporting of Greenhouse Gases Rule” that solicits 

additional information to help with the more in-depth 

evaluation relative to Inputs to Emission Equations (see 75 

FR 81366, December 27, 2010). In addition, EPA recently 

published an Interim Final notice to defer reporting of 

these data elements on a short-term basis (75 FR 81338, 

December 27, 2010) and a proposal to further defer 
Page 39 of 178 

reporting of these data elements for reporting years 2011, 

and 2012 until March 31, 2014 (75 FR 81350, December 27, 

2010). As explained in these notices, EPA concluded that 

it should complete its evaluation of these data elements 

and make final confidentiality determination for the data 

elements in this category before collecting such data to 

avoid possibly causing unnecessary and unintentional, but 

irreparable, harm which reporters allege could occur if 

Inputs to Emission Equations were made publicly available. 

In the July 7, 2010 CBI proposal, EPA defined the data 

elements in the Inputs to Emission Equations category as 

data elements that are “inputs to equations specified in 

Part 98 for calculating emissions to be reported by direct 

emitters ... and are used by the reporting direct emitting 

sources to calculate their annual GHG emission under part 

98” (75 FR 39094 July 7, 2010). However, in preparing the 

interim final and proposed deferral notices described 

above, EPA noted that the July 2010 CBI proposals 

inadvertently included in the Inputs to Equations category 

69 data elements that are information related to emissions 

calculations but are not the actual inputs specified in any 

part 98 emission equation. For example, a particular 

subpart may require that reporters complete a particular 

calculation for each unit across a facility. In this 
Page 40 of 178 

circumstance, a reporter would gather necessary data and 

complete the particular calculation for each unit. 

Although Part 98 specifies that reporters must complete the 

calculation for each unit, the actual number of units would 

not be an input to the emission equation based on our 

description of the Inputs to Equations category. Thirtyseven of these 69 data elements, listed below, were moved 

out of the Inputs to Equations category because after 

further consideration, we determined that the reporting 

elements were not inputs to equations. For these data 

elements, the frequency of measurement that is prescribed 

in the “Calculating GHG emissions” sections differs from 

that of the data element that is reported. For example, 

in Equation Y-1a in 98.253(b)(1)(ii)(a), “CCp”, the average 

carbon content of the flare gas combusted”, is required to 

be monitored either daily or weekly. The daily or weekly 

carbon content of the flare gas combusted, however, is not 

required to be reported. Instead, pursuant to 

98.256(e)(6), the “annual average carbon content of the 

flare gas” is required to be reported. Therefore, the 

carbon content is required to be measured and used to 

calculate emissions at a higher frequency than that which 

is required to be reported. As a result, the reporting 

element is an approximation of the actual values that are 
Page 41 of 178 

used to calculate the emissions, and is not actually used 

to calculate emissions. In cases such as these, we have 

determined that the reporting elements are not inputs to 

equations. 

• Annual volume of flare gas combusted (reported under 

40 CFR 98.256(e)(6)). 

• Annual average molecular weight of the flare gas 

(reported under 40 CFR 98.256(e)(6)). 

• Annual average Carbon content of the flare gas for 

each flare (reported under 40 CFR 98.256(e)(6)). 

• Annual volume of flare gas combusted for each flare 

(reported under 40 CFR 98.256(e)(7)). 

• Annual average CO2 concentration for each flare 

(reported under 40 CFR 98.256(e)(7)). 

• Annual average concentration of carbon containing 

compound other than CO2 in the flare gas stream for 

each flare (reported under 40 CFR 98.256(e)(7)(i)). 

• Annual volume of flare gas combusted (reported under 

40 CFR 98.256(e)(8)). 

• Annual average higher heating value of the flare gas 

(reported under 40 CFR 98.256(e)(8)). 

• Average annual value of the exhaust gas flow rate 

reported by refineries (reported under 40 CFR 

98.256(f)(7)). 

• Average annual value of %CO2 reported by refineries 

(reported under 40 CFR 98.256(f)(7)). 

• Average annual value of %CO reported by refineries 

(reported under 40 CFR 98.256(f)(7)). 

• Average annual value of the inlet air flow rate 

reported by refineries (reported under 40 CFR 

98.256(f)(8)). 

• Average annual value of oxygen-enriched air flow rate 

reported by refineries (reported under 40 CFR 

98.256(f)(8)). 

• Average annual value of %O2 reported by refineries 

(reported under 40 CFR 98.256(f)(8)). 
Page 42 of 178 

• Average annual value of %Ooxy reported by refineries 

(reported under 40 CFR 98.256(f)(8)). 

• Average annual value of %CO2 reported by refineries 

(reported under 40 CFR 98.256(f)(8)). 

• Average annual value of %CO reported by refineries 

(reported under 40 CFR 98.256(f)(8)). 

• Average annual value of the inlet air flow rate 

reported by refineries (reported under 40 CFR 

98.256(f)(9)). 

• Average annual value of oxygen-enriched air flow rate 

reported by refineries (reported under 40 CFR 

98.256(f)(9)). 

• Average annual value of %N2oxy reported by refineries 

(reported under 40 CFR 98.256(f)(9)). 

• Average annual value of %N2 exhaust reported by 

refineries (reported under 40 CFR 98.256(f)(9)). 

• Average coke burn-off quantity per cycle or 

measurement period for each catalytic cracking units, 

traditional fluid coking units, and catalytic 

reforming units reported by refineries (reported 

under 40 CFR 98.256(f)(13)). 

• Annual volume of recycled tail gas (if not used to 

calculate the recycling correction factor (reported 

under 40 CFR 98.256(h)(5)). 

• Annual average mole fraction of carbon in the tail gas 

(if not used to calculate recycling correction factor) 

(reported under 40 CFR 98.256(h)(5)). 

• Annual volumetric flow discharged to the atmosphere 

(reported under 40 CFR 98.356(l)(5)). 

• Annual average mole fraction of each GHG above the 

concentration threshold or otherwise required to be 

reported (reported under 40 CFR 98.356(l)(5)). 

• Quarterly CEMS CH4 concentration data used to calculate 

CH4 liberated from degasification systems average from 

daily data (C) (reported under 40 CFR 98.326(i)). 

• Quarterly CH4 concentration data based on weekly 

sampling data (C) (reported under 40 CFR 98.326(i)). 

• For landfills with gas collection systems, report 

total volumetric flow of landfill gas collected for 

destruction for the reporting year (reported under 40 

CFR 98.346(i)(1)). 
Page 43 of 178 

• Annual average CH4 concentration of landfill gas 

collected for destruction (reported under 40 CFR 

98.346(i)(2)). 

• Monthly average temperature at which flow is measured 

for landfill gas collected for destruction (reported 

under 40 CFR 98.346(i)(3)). 

• Monthly average pressure at which flow is measured for 

landfill gas collected for destruction (reported under 

40 CFR 98.346(i)(3)). 

• Cumulative volumetric biogas flow for each week that 

biogas is collected for destruction (if using daily 

sampling) (reported under 40 CFR 98.356(d)(2)). 

• Weekly average CH4 concentration for each week that 

biogas is collected for destruction (if using daily 

sampling) (reported under 40 CFR 98.356(d)(3)). 

• Weekly average temperature at which flow is measured 

for biogas collected for destruction (if using daily 

sampling) (reported under 40 CFR 98.356(d)(4)). 

• Weekly average moisture content for each week at which 

flow is measured for biogas collected for destruction 

(if using daily sampling) (reported under 40 CFR 

98.356(d)(5)). 

• Weekly average pressure for each week at which flow is 

measured for biogas collected for destruction (if 

using daily sampling) (reported under 40 CFR 

98.356(d)(6)). 

 As the 69 data elements are not inputs to emission 

equations, we did not include these data elements in the 

December 27, 2010 deferral actions described above. At 

that time, we noted that “The list of inputs to equations 

is slightly different than what was proposed in the July 7, 

2010 CBI proposal. Reporting elements included in this 

category are values used by reporters to calculate equation 

outputs.” (75 FR 81350, December 27, 2010). In this 
Page 44 of 178 

action, we reassigned each of the 69 data elements that are 

not the actual inputs to equations specified in part 98 to 

an appropriate direct emitter data category based on the 

type and characteristics of each data element. As a 

result, these data elements are no longer in the Inputs to 

Equations category but are in categories with the same 

types of data elements. Because the July 2010 CBI 

proposals included for comment proposed determinations and 

supporting rationales for data elements that are of the 

same types as these 69 data elements, we believe that it is 

appropriate for us to take final action on the 

confidentiality determinations for these reassigned data 

elements. Specifically, where we have assigned a data 

element to a data category with a categorical 

determination, we applied the final confidentiality 

determination for the assigned category to the new data 

element. Where a new data element is assigned to a data 

category without a categorical confidentiality 

determination, we identified the same type of data 

element(s) in that category that were covered by the CBI 

proposals, and we applied the confidentiality determination 

for the same type of data elements to the reassigned data 

element. For a list of these reassigned data elements, the 

category to which they were assigned, and their final 
Page 45 of 178 

confidentiality status, and examples of the same type of 

data element indentified in the particular category, see 

Table C in the memorandum “Final Data Category Assignments 

and Confidentiality Determinations for Part 98 Reporting 

Data” in Docket EPA-HQ-OAR-2009-0924 and on EPA’s website 

(http://www.epa.gov/climatechange/emissions/CBI.html.) 

5. Categorical Determinations for the Direct Emitter 

Categories Unit/Process Static Operating Characteristics 

and Unit/Process Operating Characteristics that are Not 

Inputs to Emission Equations.

Comment: In the July 2010 CBI proposals, we proposed 

that all the data elements in the direct emitter categories 

Unit/Process Static Operating Characteristics that are Not 

Inputs to Emission Equations and Unit/Process Operating 

Characteristics that are Not Inputs to Emission Equations 

would be non-CBI. In the proposal, we stated that the 

disclosure of the data elements in these data categories 

would be unlikely to cause competitive harm and also noted 

that some of the data elements were already available from 

other public sources. Several commenters expressed concern 

that EPA had not fully evaluated the potential harm of 

public availability of some of the data elements in these 

two categories and recommended that we re-evaluate the 

confidentiality determinations for these data elements in 
Page 46 of 178 

these two data categories. Some commenters disagreed with 

our conclusion that much of the data in these categories 

was already publicly available through other sources. Some 

commenters identified specific data elements and provided 

supporting rationale explaining why they should be eligible 

for confidential treatment. However, most commenters 

provided only broad statements that did not identify 

specific data elements or provide detailed supporting 

rationale, but instead expressed concern that disclosure of 

data elements in these categories could cause potential 

harm to some reporters. 

Response: In evaluating the comments submitted, EPA 

determined that the comments raised issues that warranted 

additional consideration. Because many of the comments did 

not specify the data elements that were of concern, EPA 

decided to re-evaluate each data element in these two data 

categories to ensure that concerns were fully addressed. 

As a result of our re-evaluation, EPA decided not to make 

the proposed categorical determination that all data 

elements in these two categories are non-CBI and has 

determined that some of the data elements assigned to these 

data categories are eligible for confidential treatment. 

This decision was based on new information collected by the 

Agency and/or provided by commenters. For the summary of 
Page 47 of 178 

the comments and a detailed discussion of the rationale for 

final determinations for the data elements in these 

categories, see Sections II.B.6 and II.B.7 of this 

preamble. 

6. Timing of the CBI Proposal

Comment: Several commenters expressed concern 

regarding the timing of the July 7, 2010 CBI proposal. 

These commenters stated that EPA should have addressed CBI 

in the April 10, 2009 proposal for the GHG Reporting Rule 

(74 FR 16448). They asserted that EPA’s decision not to 

address CBI in the original proposal for the GHG Reporting 

Rule negatively affected their ability to properly evaluate 

Part 98 when it was initially proposed. Some commenters 

stated that they advocated for calculation methods that 

relied on mass balance equations because they believed that 

the inputs to those equations would be held confidential. 

Some commenters asserted that they would have supported 

third party verification had they known that reported data 

would not be afforded confidential treatment. 

In certain circumstances, the CAA allows parties to 

petition EPA to reconsider aspects of newly enacted 

regulations implementing the Act. Some industries 

petitioned EPA regarding certain aspects of the Part 98 

requirements. Some commenters stated that EPA should have 
Page 48 of 178 

published the CBI proposal before discussing these 

petitions with industry and that EPA’s decision not to do 

so prejudiced the industries that participated in those 

discussions. 

Response: We disagree with commenters who stated that 

they did not have sufficient notice regarding types of data 

that would be eligible for confidential treatment because 

the CBI issue was not addressed during the April 10, 2009 

proposal for the GHG Reporting Rule. We also disagree with 

commenters who suggested the timing of the CBI proposal 

prejudiced those reporters who entered into discussions 

with EPA regarding petitions for reconsideration of certain 

Part 98 requirements prior to the publication of the July 

2010 CBI proposals. We stated in the preamble to the April 

10, 2009 proposal that “emission data collected under CAA 

sections 114 and 208 cannot be considered CBI” (see 74 FR 

16463, April 10, 2009). EPA’s CBI regulations define 

emission data at 40 CFR 2.301; EPA used this definition to 

determine which Part 98 data elements are emission data and 

therefore not eligible for confidential treatment pursuant 

to CAA section 114(c). For data that do not meet the 

definition of emission data, EPA considered the 

confidentiality determination criteria at 40 CFR 2.208 to 

make the CBI determinations. Both the emission data 
Page 49 of 178 

definition at 40 CFR 2.301 and the confidentiality 

determination criteria at 40 CFR 2.208 have been part of 

EPA’s CBI regulations since the regulations were first 

promulgated in 1976. Furthermore, the comments on the 

original Part 98 proposal received in 2009 indicate that 

the commenters were aware that section 114(c) of the CAA 

requires emission data be made publicly available. As 

evidenced by the comments, commenters were aware 15 months 

before EPA’s publication of the July 7, 2010 CBI proposal 

that CAA section 114(c) requires emission data to be made 

publicly available (See 74 FR 56260 and 56287, October 30, 

2009). Commenters who entered into discussions with EPA 

regarding petitions in 2010 would also have been aware of 

CAA section 114(c) at the time they made these agreements. 

In light of EPA’s long-standing regulatory provisions, we 

reject commenters’ claim that they had insufficient notice 

regarding EPA’s approach to confidential treatment of data 

or that reporters who entered into settlement agreements 

were prejudiced. 

EPA notes that many of the commenters who expressed 

concern with the timing of the CBI proposal were primarily 

concerned with EPA’s proposal that data in the Inputs to 

Emissions Equations category would be publicly available. 

As discussed in more detail above, EPA is not finalizing in 
Page 50 of 178 

this action the confidentiality status for the data in the 

Inputs to Emission Equations category. For additional 

information on inputs to equations, please see Section 

II.A.4 of this preamble. 

7. Extent to Which CEMS Can Be Used to Reduce the Number 

of Data Elements Disclosed to the Public.

Comment: In the preamble to the July 7, 2010 CBI 

proposal, we noted that facilities who choose to use 

continuous emission monitoring systemsystems (CEMS) may 

have fewer CBI concerns. As these facilities use CEMS to 

monitor emissions, we observed that certain data elements 

would not be used as inputs to emission equations, which we 

had proposed to be emission data and therefore subject to 

disclosure under CAA section 114(c). In addition, 

facilities using CEMS would report fewer data elements than 

those using emission equations (75 FR 39109, July 7, 2010). 

In that preamble, we requested comment on the extent to 

which CEMS could be used to relieve industry concerns 

regarding public disclosure of sensitive data. Several 

commenters agreed that CEMS may be a viable option for many 

sources because CEMS for measuring CO2 emissions are readily 

available. One commenter recommended that EPA require CEMS 

for reporters who want to withhold sensitive data. 

However, other commenters stated that using CEMS is 
Page 51 of 178 

expensive and is not a cost-effective approach for 

determining GHG emissions. Some commenters argued that 

CEMS would be a viable option only for sources that have 

few emission points because the costs of installing and 

operating CEMS units on a large number of stacks would be 

prohibitively expensive. Other commenters argued that Part 

98 does not provide all source categories an option to use 

CEMS to measure GHG emissions and that CEMS would not be 

technically achievable for some industries. For example, 

some commenters stated that CEMS would not be technically 

feasible for the fluorochemical industry because of 

technical difficulties in designing a CEMS for monitoring 

fluorinated GHG emissions. These commenters argued that 

CEMS used in the fluorochemical industry would have to be 

able to detect a wide variety of fluorinated GHGs and would 

also have to withstand highly corrosive operating 

conditions due to the presence of hydrofluoric and 

hydrochloric acid in the fluorochemical process vent 

streams. 

Some commenters noted that CEMS could not be used to 

alleviate CBI concerns for the 2010 reporting year unless 

the sources had already installed CEMS to measure GHG 

emissions as of January 1, 2010. One commenter argued that 

facilities selected their 2010 monitoring methods before 
Page 52 of 178 

EPA proposed to make raw material and other throughput 

information public. This commenter recommended that EPA 

delay reporting for at least one year to allow facilities 

an opportunity to purchase and install CEMS before having 

to report their emissions. 

Response: These comments relate to data elements in 

the Inputs to Emission Equations category, as the use of 

CEMS reduces the number of data elements necessary to be 

used as inputs to emission calculations. Currently, 20 of 

the 34 Part 98 subparts for direct emitters provide an 

option to use CEMS for determining CO2 emissions. In 

addition, the Part 98 subparts for adipic acid (subpart E) 

and nitric acid (subpart V) allow facilities to petition 

EPA for approval to use N2O CEMS. However, a CEMS option 

for other GHGs, such as CH4, SF6, and fluorinated GHGs, is 

not currently included in Part 98. EPA agrees with 

commenters that CEMS may not be technically feasible at 

this time for all sources covered by the reporting rule, 

and therefore would not be an option in all circumstances 

where a reporter is concerned about the public disclosure 

of data they consider sensitive. We also recognize that 

many sources did not elect to use CEMS during the 2010 

reporting period and therefore would not be able to use 

CEMS to mitigate their CBI concerns for the 2010 reporting 
Page 53 of 178 

year. However, as noted Section II.A.5 of this preamble, 

EPA is addressing these concerns through a separate 

process. EPA has published an Interim Final Rule that will 

defer reporting of data elements in the Inputs to Emission 

Equation data category for the 2010 annual report (75 FR 

81338, December 27, 2010) and a proposal to defer reporting 

of these data elements until 2014 (75 FR 81350, December 

27, 2010). EPA also issued a notice announcing a call for 

information soliciting additional information so that EPA 

can adequately evaluate additional monitoring and 

verification approaches that would not use sensitive data 

elements as Inputs to Emission Equations (75 FR 81366, 

December 27, 2010). 

8. Time Limits on Confidentiality Determinations

Comment: In the July 7, 2010 CBI proposal, EPA 

requested comment on whether there should be a time limit 

on protection of data determined to be CBI. A few 

commenters asserted that confidential treatment of CBI 

should be limited to a given period of time and stated that 

EPA should use its authority under 40 CFR 2.208(a) to 

disclose data when disclosure would no longer cause 

substantial harm to the reporters’ competitive position. 

These commenters argued that not all of the data determined 

to be CBI may warrant permanent treatment as confidential. 
Page 54 of 178 

Some commenters recommended that EPA develop a process to 

establish the duration of the confidential status of each 

type of information. One commenter recommended that CBI 

status automatically lapse after two years unless a 

reporter submits a request to extend the duration of CBI 

protection and makes a satisfactory showing that disclosure 

of the data would cause substantial harm to its competitive 

position. This commenter suggested that a two year period 

was a reasonable time period because of the rate at which 

the market changes. 

However, most commenters stated that CBI status should 

not be time-limited. Many stated that data designated as 

CBI remain relevant and sensitive for many years after the 

reporting year has passed and that its disclosure at any 

time likely would cause competitive harm to the reporting 

entity. One commenter stated that industry marketing 

trends play out over long time frames and that competitors 

value market, process, and production data even after five 

or ten years. One commenter recommended that CBI data 

remain protected as CBI for the life of the reporting 

entity. 

Response: While we recognize that market conditions 

change and data once considered CBI may become less 

sensitive over time, we do not have sufficient information 
Page 55 of 178 

to decide that CBI determinations should be limited to any 

specific period of time for any particular Part 98 data. 

We note that other CBI determinations made by EPA are 

generally not time-limited. Furthermore, today’s amendment 

to 40 CFR 2.301 (Special Rules Governing Certain 

Information Obtained under the Clean Air Act) provides 

procedures for EPA to modify a prior confidentiality 

determination (see 40 CFR 2.301(d)(4)) should certain Part 

98 data no longer be entitled to confidential treatment 

because of changes in the applicable law or newly 

discovered or changed facts. This provision reflects the 

requirements in CBI regulations at 40 CFR 2.205(h) for 

modifying prior determinations for other information. We 

do not see a need to establish a process different from 

that which we had proposed for declassifying CBI. 

B. Direct Emitters

1. Major Changes to Determinations

We are finalizing our category assignments of the data 

elements in the direct emitter subparts specified in 

Section I.C of this preamble for 10 of the 11 direct 

emitter data categories and our confidentiality 

determinations for these 10 direct emitter data categories. 

As discussed in Section II.A.5 of this preamble, the 

confidentiality determinations for the data elements in the 
Page 56 of 178 

Inputs to Emission Equations category are not being 

finalized in this action. Further, as discussed in Section 

II.A.6 of this preamble, for the Unit/Process Static 

Characteristics and the Unit/Process Operating 

Characteristics categories, EPA is making final 

confidentiality determinations for each data element within 

these categories, rather than finalizing the category-wide 

determinations proposed in the CBI proposals. 

The major changes since our CBI proposals to the 10 

direct emitter data categories and the confidentiality 

determinations finalized in this action are summarized 

below. 

• We have assigned the data elements for reporting 

process emissions (i.e., the amount of GHG generated 

by a production facility) at 40 CFR 98.3(c)(4), 40 CFR 

98.76(a), 40 CFR 98.196(a)(1), and 40 CFR 98.246(a)(2) 

as follows for the reasons specified in Section II.B.3 

of this preamble: 

– For facilities that collect CO2 for use on site or 

for shipment off site, the data elements for 

reporting process emissions are categorized in the 

Unit/Process Operating Characteristics that are Not 

used as Inputs to Emissions Equations data category. 

– For facilities that discharge process emissions to 

the atmosphere, the data elements for reporting 

process emissions are categorized in the Emissions 

data category. 

• We have added seven new data elements to the Emissions 

category for the reasons specified in Section II.B.3 

of this preamble. The data elements are as follows: 

– Annual emissions aggregated for all GHGs from all 

applicable source categories, expressed in metric 
Page 57 of 178 

tons of CO2e calculated using Equation A-1 (reported 

under 40 CFR 98.3(c)(12)(i)). 

– Annual emissions of biogenic CO2, expressed in 

metric tons (excluding biogenic CO2 emissions from 

part 75 units), aggregated for all applicable source 

categories (reported under 40 CFR 98.3(c)(12)(ii)). 

– Annual emissions from each applicable source 

category, expressed in metric tons of biogenic CO2

(excluding biogenic CO2 emissions from part 75 units 

(reported under 40 CFR 98.3(c)(12)(iii)(A)). 

– Annual emissions from each applicable source 

category, expressed in metric tons of CO2 (including 

biogenic CO2 emissions from 40 CFR part 75 units and 

excluding biogenic CO2 emissions from other non-part 

75 units and other source categories) (reported 

under 40 CFR 98.3(c)(12)(iii)(B)). 

– Annual emissions from each applicable source 

category, expressed in metric tons of CH4 (reported 

under 40 CFR 98.3(c)(12)(iii)(C)). 

– Annual emissions from each applicable source 

category, expressed in metric tons of N2O (reported 

under 40 CFR 98.3(c)(12)(iii)(D)). 

– Annual emissions from each applicable source 

category, expressed in metric tons of each 

fluorinated GHG (including those not listed in Table 

A-1 to subpart A) (reported under 40 CFR 

98.3(c)(12)(iii)(E)). 

• We have moved one data element from the Inputs to 

Emission Equations category to the Emissions category 

for the reasons specified in Section II.B.3 of this 

preamble. This data element requires facilities to 

report the annual CO2 emissions from each wet-process 

phosphoric acid process line (reported under 40 CFR 

98.266(f)(2)). 

• We have added one new data element to the Methodology 

and Methodological Tier category for the reasons 

specified in Section II.B.4 of this preamble. This 

data element requires facilities to indicate whether 

the annual volume of flare gas combusted and the 

annual average higher heating value of the flare gas 

were determined using standard conditions of 68 oF and 

14.7 psia or 60 oF and 14.7 psia (reported under 40 

CFR 98.256(e)(8). 
Page 58 of 178 

• Although we proposed non-CBI determinations for the 

Unit/Process Static Characteristics that are Not 

Inputs to Emission Equations data category, we have 

made individual confidentiality determinations for the 

data elements in this category in this final action. 

Specifically, for the reasons described in Section 

II.B.6, we have determined that the description of new 

melt protection technology adopted by a magnesium 

production facility (reported under 40 CFR 98.206(h)), 

qualifies as CBI. 

• EPA has decided not to make final confidentiality 

determinations for the following two elements in the 

Unit/Process Static Characteristics that are Not 

Inputs to Emission Equations for the reasons described 

in Sections II.B.6 of this preamble. These data 

elements are as follows: 

– The description of the gas collection system at an 

underground coal mine (reported under 40 CFR 

98.326(q)). 

– The description and/or diagram of the industrial 

wastewater treatment system (reported under 40 CFR 

98.356(a)). 

• We have added one new data element to the Unit/Process 

Static Characteristics Not used as Inputs to Emission 

Equations category for the reasons specified in 

Section II.B.6 of this preamble. This data element 

requires municipal landfills to report a description 

of the aeration system used at their landfill, 

including aeration blower capacity (reported under 40 

CFR 98.346(d)(1)) and is determined to be non-CBI. 

• We have moved 13 data elements from Inputs to Emission 

Equations to the Unit/Process Static Characteristics 

that are Not Inputs to Emission Equations category and 

made the following determinations for the reasons 

specified in Section II.B.6. These data elements and 

the final determinations are as follows: 

– Number of abatement technologies used at adipic acid 

production plants (reported under 40 CFR 98.56(d)) 

is not CBI. 

– Number of cement kilns (reported under 40 CFR 

98.86(b)(4)) is not CBI. 

– Total number of glass furnaces (reported under 40 

CFR 98.146(b)(8)) is not CBI. 
Page 59 of 178 

– Total number of lead smelting furnaces (reported 

under 40 CFR 98.b(5)) is not CBI. 

– Number of nitric acid trains (reported under 40 CFR 

98.226(f)) is not CBI. 

– Number of delayed coking units drums (reported under 

40 CFR 98.256(k)(3)) is not CBI. 

– Number of wet-process phosphoric acid lines 

(reported under 40 CFR 98.266(f)(7)) is not CBI. 

– Number of separate chloride process lines located at 

titanium dioxide production facilities (reported 

under 40 CFR 98.56(d)) is not CBI. 

– Number of Waelz kilns used for zinc production 

(reported under 40 CFR 98.336(b)(4)) is not CBI. 

– Number of electrothermic furnaces used for zinc 

production (reported under 40 CFR 98.336(b)(5)) is 

not CBI. 

– The typical drum or vessel outage (reported under 40 

CFR 98.256(k)(3)) is CBI. 

– The number of delayed coking drums or vessels 

(reported under 40 CFR 98.256(k)(3)) is CBI. 

– The number of delayed coking drums in a set 

(reported under 40 CFR 98.256(k)(4)) is CBI. 

• We have double listed four data elements in the 

Unit/Process Static Characteristics that are Not 

Inputs to Emission Equations category and in the 

Inputs to Emission Equations category. For those 

reporters who do not use the data elements in the 

specified equations, the data elements are in the 

Unit/Process Static Characteristics that are Not 

Inputs to Emission Equations. We have made the 

following determinations and for the reasons 

specified in Section II.B.6: 

– Number and type of each source of equipment leaks at 

petroleum refineries when reported by facilities not 

using Equation Y-21 to calculate emissions (reported 

under 40 CFR 98.256(n)(3)) is non-CBI. 

– Year in which a municipal landfill first started 

accepting waste, where reported by facilities that 

do not use Equation HH-3 (reported under 40 CFR 

98.346(a)) is non-CBI. 

– Year in which a municipal landfill last accepted 

waste, where reported by facilities that do not use 
Page 60 of 178 

Equation HH-3 (reported under 40 CFR 98.346(a)) is 

non-CBI. 

– Capacity of the municipal landfill, where reported 

by facilities that do not use Equation HH-3 

(reported under 40 CFR 98.346(a)) is non-CBI. 

• Although we proposed a non-CBI determination for all 

data in the Unit/Process Operating characteristics 

that are not Inputs to Emission Equations category, we 

have made individual confidentiality determinations 

for the data elements in this category in this final 

action. Specifically, we have determined that the 

following data elements in this category qualify as 

CBI as discussed in Section II.B.7 of this preamble: 

– The reason for submitting a Best Available 

Monitoring Methods (BAMM) extension request 

(reported under 40 CFR 983(d)(ii)(C)). 

– The reason why equipment was not or could not be 

obtained and installed during a planned shutdown 

between October 30, 2009 and April 1, 2010 as 

reported in a BAMM extension request(reported under 

40 CFR 98.3(d)(2)(ii)(E)). 

– Planned installation date for monitoring equipment 

as reported in a BAMM extension request (reported 

under 40 CFR 98.3(d)(2)(ii)(F)). 

– The anticipated date on which a facility applying 

for a BAMM extension will begin using the monitoring 

methods specified in Part 98 (reported under 40 CFR 

98.3(d)(2)(ii)(F)). 

– The sampling analysis results of carbon content of 

feedstock as determined from QA/QC supplier data 

under 40 CFR 98.74(e) by ammonia manufacturing 

facilities (reported under 40 CFR 98.76(b)(6)). 

– The mass fraction of each sample analyzed for all 

tests used to verify the carbonate-based mineral 

mass fraction of raw materials charged to glass 

manufacturing facilities (reported under 40 CFR 

98.146(b)(5)(iii)). 

– The explanation of change greater than 30 percent in 

a magnesium production facility’s cover gas usage 

rate (reported under 40 CFR 98.206(g)). 

– The types of materials loaded that have an 

equilibrium vapor phase concentration of CH4 of 0.5 
Page 61 of 178 

volume per cent or greater (reported under 40 CFR 

98.246(p)(2). 

– The sampling analysis results for carbon content of 

petroleum coke consumed by a silicon carbide 

production facility as determined for QA/QC of data 

provided by raw material suppliers (reported under 

40 CFR 98.286(b)(7)). 

– The sampling analysis results of carbon content of 

petroleum coke consumed by titanium dioxide 

production facilities for QA/QC of data provided by 

raw material suppliers (reported under 40 CFR 

98.316(b)(13)). 

• We have added the following four new data elements to 

the Unit/Process Operating Characteristics that are 

Not Inputs to Emission Equations category and have 

also determined that these data elements are not CBI 

for the reasons specified in Section II.B.7 of this 

preamble. The data elements are as follows: 

– Indication of whether active aeration of the waste 

in the landfill was conducted during the reporting 

year (reported under 40 CFR 98.346(d)(1)). 

– Fraction of the landfill containing waste affected 

by the aeration (reported under 40 CFR 

98.346(d)(1)). 

– Total number of hours during the year the aeration 

blower was operated (reported under 40 CFR 

98.346(d)(1)). 

– Other factors used as a basis for the selected 

methane correction factor (MCF) value (reported 

under 40 CFR 98.346(d)(1)). 

• We have moved 40 data elements from the Inputs to 

Emission Data category to the Unit/Process Operating 

Characteristics that are Not Inputs to Emission 

Equations category for the reasons specified in 

Section II.B.7 of this preamble. A list of these 46 

data elements is provided in the memorandum “Final 

Data Category Assignments and Confidentiality 

Determinations for Part 98 Reporting Elements” (see 

Docket EPA-HQ-OAR-2009-0924 and the website 

(http://www.epa.gov/climatechange/emissions/ghgrulemak

ing.html). We have determined that the following data 

elements are CBI: 
Page 62 of 178 

– The average annual value of the exhaust gas flow 

rate reported by refineries (40 CFR 98.256(f)(7)) 

– The average annual value of %CO2 reported by 

refineries (40 CFR 98.256(f)(7)). 

– The average annual value of %CO reported by 

refineries (40 CFR 98.256(f)(7)). 

– The average annual value of the inlet air flow rate 

reported by refineries (40 CFR 98.256(f)(8)). 

– The average annual value of oxygen-enriched air flow 

rate reported by refineries (40 CFR 98.256(f)(8)). 

– The average annual value of %O2 reported by 

refineries (40 CFR 98.256(f)(8)). 

– The average annual value of %Ooxy reported by 

refineries (40 CFR 98.256(f)(8)). 

– The average annual value of %CO2 reported by 

refineries (40 CFR 98.256(f)(8)). 

– The average annual value of %CO reported by 

refineries (40 CFR 98.256(f)(8)). 

– The average annual value of the inlet air flow rate 

reported by refineries (reported under 40 CFR 

98.256(f)(9)). 

– The average annual value of oxygen-enriched air flow 

rate reported by refineries (reported under 40 CFR 

98.256(f)(9)). 

– The average annual value of %N2oxy reported by 

refineries (reported under 40 CFR 98.256(f)(9)). 

– The average annual value of %N2 exhaust reported by 

refineries (reported under 40 CFR 98.256(f)(9)). 

– The number of regeneration cycles or measurement 

periods during the reporting year for each catalytic 

cracking unit, traditional fluid coking unit, and 

catalytic reforming unit reported by refineries 

(reported under 40 CFR 98.256(f)(13)). 

– The average coke burn-off quantity per cycle or 

measurement period for each catalytic cracking 

units, traditional fluid coking units, and catalytic 

reforming units reported by refineries (reported 

under 40 CFR 98.256(f)(13)). 

• We have double listed six data elements in the 

Unit/Process Operating Characteristics that are Not 

Inputs to Emission Equations category and in the 
Page 63 of 178 

Inputs to Emission Equations category. For those 

reporters who do not use the data elements in the 

specified equations, the data elements are in the 

Unit/Process Operating Characteristics that are Not 

Inputs to Emission Equations and have the following 

determinations for the reasons specified in Section 

II.B.6: 

– Annual volume of recycled tail gas (if not used to 

calculate the recycling correction factor (reported 

under 40 CFR 98.256(h)(5)) is CBI. 

– Annual average mole fraction of carbon in the tail 

gas (if not used to calculate recycling correction 

factor) (reported under 40 CFR 98.256(h)(5)) is CBI. 

– Weekly average temperature at which flow is measured 

for biogas collected for destruction (if using daily 

sampling) (reported under 40 CFR 356(d)(4)) is nonCBI. 

– Weekly average moisture content for each week at 

which flow is measured for biogas collected for 

destruction (if using daily sampling) (reported 

under 40 CFR 356(d)(5)) is non-CBI. 

– Weekly average pressure for each week at which flow 

is measured for biogas collected for destruction (if 

using daily sampling) (reported under 40 CFR 

98.356(d)(6)) is non-CBI. 

– Surface area at the start of the reporting year for 

the landfill sections that contain waste and that 

are associated with the selected cover type by 

facilities not using Equation HH-8 (reported under 

40 CFR 98.466(e)2) is non-CBI. 

• We have moved seven data elements from the Methods and 

Methodological Tier category to the Test and 

Calibration Methods category for the reasons specified 

in Section II.B.8 of this preamble: 

– The basis for the unit-specific factor (i.e., select 

from average of multiple source tests; Single source 

test within last 5 years; Single source test more 

than 5 years ago; Source test of identical unit at 

same facility)(40 CFR 98.256(i)(8)). 

– The basis for the CO2 emission factor used in 

Equation Y-16b (40 CFR 98.256(j)(8)). 
Page 64 of 178 

– The basis for the carbon emission factor used in 

Equation Y-16b (40 CFR 98.256(j)(8)). 

– Indication of the measurement or estimation method 

used for measuring volumetric flow discharge for 

each process vent (40 CFR 98.256(l)(5)). 

– Indication of the measurement or estimation method 

used for measuring average mole fraction of each GHG 

for each process vent (40 CFR 98.256(l)(5)). 

– The basis for the CH4 emission factor used (i.e., 

select from weekly or more often measurements; 

Periodic (less frequent than weekly) measurements; 

average of multiple source tests; One-time source 

test; Default factor) for uncontrolled blowdown 

systems (40 CFR 98.256(m)(3)). 

– Basis for the mole fraction of CH4 in the vent gas 

from the unstabilized crude oil storage tank (i.e., 

measurement of methane composition; engineering 

estimate of methane composition based on crude 

composition; default) for storage tanks that process 

unstabilized crude oil (40 CFR 98.256(o)(4)(vi)). 

• We have moved three data elements from the Inputs to 

Emission Equations category to the 

Production/Throughput Data that are Not Inputs to 

Emission Equations for the reasons specified in 

Section II.B.9 of this preamble: 

- Annual quantity of petrochemicals produced (40 CFR 

98.246(a)(5)). 

- Volume or mass of off-specification product 

produced (40 CFR 98.246(a)(9)). 

- Monthly production of titanium dioxide for each 

production process (40 CFR 98.316(b)(8)). 

• We have double listed two data elements in the 

Production/Throughput Data that are Not Inputs to 

Emission Equations and in the Inputs to Emission 

Equations category. For those reporters who do not 

use the data elements in the specified equations, the 

data elements are in the Production/Throughput Data 

that are Not Inputs to Emission Equations and have the 

following determinations for the reasons specified in 

Section II.B.9: 

- Cumulative volumetric biogas flow for each week 

that biogas is collected for destruction reported 
Page 65 of 178 

by wastewater treatment facilities using daily 

sampling (40 CFR 98.356(d)(2)). 

- Weekly average CH4 concentration for each week that 

biogas is collected for destruction reported by 

wastewater treatment facilities using daily 

sampling (40 CFR 98.356(d)(3)). 

• Although we had proposed that the data element that 

requires reporting of the annual quantity of CO2

captured for use on site (40 CFR 98.196(a)(17)(i)) to 

be in the Unit/Process Operating Characteristics that 

are Not used as Inputs to Emissions Equations Data 

category, we have moved this data element to the Raw 

Material Consumed that are Not Inputs to Emission 

Equations Data category for the reasons specified in 

Section II.B.9 of this preamble. 

 

The rationale for these changes can be found in 

Sections II.B.2 through II.B.10 of this preamble and in the 

“Proposed Confidentiality Determinations and Data Handling 

Procedures for Part 98 Data: Responses to Public Comments” 

(available in the Docket EPA-HQ-OAR-2009-0924 and on the 

website 

(http://www.epa.gov/climatechange/emissions/ghgrulemaking.h

tml). 

A list of all the direct emitter data elements and 

their category assignment under this final action is 

provided, by subpart and data category, in a memorandum 

(see “Final Data Category Assignments and Confidentiality 

Determinations for Part 98 Reporting Elements” in Docket 

EPA-HQ-OAR-2009-0924) and on the website 
Page 66 of 178 

(http://www.epa.gov/climatechange/emissions/ghgrulemaking.h

tml). 

2. Facility and Unit Identifier Information Category.

Comment: Only a few commenters submitted comments on 

this data category. The majority of those providing 

comments agreed with EPA’s proposed determination that the 

data elements in this category are not eligible for 

confidential treatment because they meet the definition of 

emission data in 40 CFR 2.301(a)(2)(i). One commenter 

agreed with EPA’s determination that the phrase “identity. 

. . of any emission” in 40 CFR 2.301(a)(2)(i)(A) refers not 

only to the names of the pollutants being emitted, but also 

includes other identifying information, such as plant name, 

address, city, state zip code, emission point or device 

description, and North American Industry Classification 

System (NAICS) code. 

Although most commenters agreed with the proposed 

determination for this category, one commenter stated that 

the code representing the type of combustion unit (reported 

under 40 CFR 98.36(b)(2)) could be considered confidential 

if it revealed information on proprietary combustion 

approaches that provide competitive advantages to the 

reporter. This commenter noted that if the codes were 

generic, they would not object to the disclosure of this 
Page 67 of 178 

data element. Another commenter believed that the customer 

meter number and combustion unit identifiers reported in 

accordance with 40 CFR 98.36(c)(1) and (c)(3) should be 

held as confidential. 

Response: The few commenters who disagreed with our 

proposed determination for this data category did not 

provide any rationale or facts explaining why the data in 

this category do not meet the definition of emission data 

at 40 CFR 2.301(a)(2)(i), as we proposed in the July CBI 

proposal. Rather, they claimed that the data elements in 

this category are sensitive and therefore, qualify as CBI. 

However, CAA section 114(c) does not afford confidential 

treatment to emission data, even if they were CBI. In any 

case, except for the two comments discussed below on 

certain specific data elements, the commenters made general 

and conclusory CBI claims; they did not provide facts or 

rationales explaining why any of the data elements in this 

category are CBI. On the other hand, we note that many of 

the data elements assigned to the category are already 

available to the public through other sources. For 

example, the name and location of a facility and 

descriptions of emission units are included in construction 

and operating permits (e.g., PSD and Title V permits). 
Page 68 of 178 

With respect to the specific comment on the customer 

meter number and combustion unit identifiers that were 

required under 40 CFR 98.36(c)(1) and (c)(3) at the time of 

CBI proposal, these data elements are no longer required to 

be reported under 40 CFR part 98, subpart C (see the 

amendments to this subpart published in 75_FR 79092, 

December 17, 2010). Further, the code representing the 

type of unit (reported under 40 CFR 98.36(b)(2)) is a 

generic code that would not reveal any proprietary 

information about an individual combustion unit. 

Therefore, according to the comment, there is no CBI 

concern. 

3. Emissions Category.

New Data Elements: In this final action, we have 

added the following seven new data elements to this data 

category: 

• Annual emissions aggregated for all GHGs from all 

applicable source categories, expressed in metric tons 

of CO2e calculated using Equation A-1 (reported under 

40 CFR 98.3(c)(12)(i)). 

• Annual emissions of biogenic CO2, expressed in metric 

tons (excluding biogenic CO2 emissions from part 75 

units), aggregated for all applicable source 

categories (reported under 40 CFR 98.3(c)(12)(ii)). 

• Annual emissions from each applicable source category, 

expressed in metric tons of biogenic CO2 (excluding 

biogenic CO2 emissions from 40 CFR part 75 units 

(reported under 40 CFR 98.3(c)(12)(iii)(A)). 

• Annual emissions from each applicable source category, 

expressed in metric tons of CO2 (including biogenic CO2
Page 69 of 178 

emissions from 40 CFR part 75 units and excluding 

biogenic CO2 emissions from other non-part 75 units and 

other source categories) (reported under 40 CFR 

98.3(c)(12)(iii)(B)). 

• Annual emissions from each applicable source category, 

expressed in metric tons of CH4 (reported under 40 CFR 

98.3(c)(12)(iii)(C)). 

• Annual emissions from each applicable source category, 

expressed in metric tons of N2O (reported under 40 CFR 

98.3(c)(12)(iii)(D)). 

• Annual emissions from each applicable source category, 

expressed in metric tons of each fluorinated GHG 

(including those not listed in Table A-1 to subpart A) 

(reported under 40 CFR 98.3(c)(12)(iii)(E)). 

These new data elements were added to subpart A by the 

amendments published on December 17, 2010 (75 FR 79092) and 

were not included in the July 2010 CBI proposals. The new 

data elements require the reporting of GHG emissions data 

for combustion units, which are the same type of data as 

all the other data elements in the Emissions category. 

Because the CBI proposals addressed the same type of data 

elements, we do not see a need to propose confidentiality 

determination for these new data elements before taking 

final action. We conclude that it is appropriate to 

include these seven data elements in this data category and 

finalize their confidentiality determinations as part of 

this data category in this action. 

Moved Data Elements: In this final action, we have 

moved the following data element to the Emissions category: 

the annual CO2 emissions from each wet-process phosphoric 
Page 70 of 178 

acid process line (reported under 40 CFR 98.266(f)(2)). 

This data element requires the reporting of CO2 emissions 

for phosphoric acid manufacturing plants and was 

inadvertently placed in the Inputs to Emission Equations 

category in the July 7, 2010 CBI proposal. This data 

element was moved to this category as it is the same type 

of data as all the other data elements in the Emissions 

category. Since this data element is the same type of data 

as the other data elements in this category, we have 

concluded that the emission data determination applied to 

that category also applies to this data element and 

finalize the determination in this action. 

Comment: In the July 7, 2010 CBI proposal, EPA 

proposed that the data elements in this data category would 

not be eligible for confidential treatment because they met 

the definition of emission data in 40 CFR 2.301(a)(2)(i). 

Most commenters agreed with this proposed determination. 

Some commenters noted that this type of information is 

often reported to EPA and State and local agencies by 

facilities as part of compliance certification and 

deviation reports and is made available to the public in 

annual emission inventories. Some commenters noted that 

information about emissions is not sensitive, and others 

argued that disclosure of GHG emissions is critical to 
Page 71 of 178 

furthering public understanding of the sources of GHG 

emissions and to enabling stakeholder participation in the 

critique and analysis of any future GHG rulemaking. 

Although many commenters supported the disclosure of 

GHG emission data and agreed that these data meet the 

definition of emission data, some commenters expressed 

concern that the disclosure of emissions data for 

individual process lines or units would cause competitive 

harm to their businesses. These commenters were concerned 

that emissions information could be used to calculate other 

data they consider to be sensitive and would harm their 

competitive position. For example, some commenters 

recommended that the annual CO2 process emissions for units 

should be held as confidential because they claimed that it 

may be used to determine sensitive information about 

manufacturing capacities and material throughputs. 

A few commenters noted that not all data included in 

this data category meet the definition of emission data 

because some of the emissions from a process are collected 

and therefore, not emitted to the atmosphere. In 

particular, these commenters noted that the annual CO2 

process emissions reported by ammonia production plants 

(see 40 CFR 98.76(b)(1)) may include CO2 that is not 

released to the atmosphere because some ammonia plants 
Page 72 of 178 

collect CO2 for use in other processes (e.g., production of 

urea). Some commenters recommended that process emissions 

should be held confidential because such data might be used 

to determine sensitive information about manufacturing 

capacities and material throughput. 

Response: EPA learned from some commenters that in 

certain situations some or all of the CO2 generated by a 

process are collected and either used onsite (e.g., urea 

manufacture) or transferred off site. In four supbarts,6

the CO2 that is collected is reported as “CO2 process 

emissions.” In those few situations where a reporter 

collects either a portion or all of the CO2 generated by a 

process, EPA agrees that the following data elements 40 CFR 

98.3(c)(4), 40 CFR 98.76(a), 40 CFR 98.196(a)(1), and 40 

CFR 98.246(a)(2) do not reflect the emissions “which has 

been emitted by the source” and therefore do not meet the 

definition of emission data in 40 CFR 2.301(a)(2)(i). In 

these limited situations, the data element is assigned in 

this final action to the data category Unit/Process 

Operating Characteristics that are Not Inputs to Emission 

Equations and is determined to be non-CBI.7 However, for 

 

6 40 CFR part 98, subpart G (Ammonia Manufacturing), subpart P (Hydrogen 

Production), subpart S (Lime Manufacturing), and subpart X 

(Petrochemical Production). 

7 Please see Section II.B.8 for the discussion on the confidentiality 

determination for these data elements. 
Page 73 of 178 

those facilities where a reporter does not collect the CO2

generated by a process such that the CO2 is emitted into the 

atmosphere, the data element remains in the Emissions Data 

Category. 

As described above, some commenters expressed concern 

with our proposed determination, because they claimed that 

some of the data elements in this category are sensitive 

business information the disclosure of which could cause 

competitive business harm. However, these commenters did 

not provide any rationale or facts explaining why the data 

in this category do not meet the definition of emission 

data at 40 CFR 2.301(a)(2)(i), as we proposed in the July 

CBI proposal. Rather, they claimed that the data elements 

in this category are sensitive and therefore, qualify as 

CBI. However, CAA section 114(c) does not afford 

confidential treatment to emission data, even if they were 

CBI. On the other hand, we note that data elements similar 

to the data elements included in this category are 

available to the public through other sources. For 

example, unit level emissions of certain pollutants are 

available through the National Emissions Inventory. We 

therefore conclude that our proposed determination for this 

data category is appropriate. 
Page 74 of 178 

4. Calculation Methodology and Methodological Tier 

Category.

New Data Elements: EPA has added one new data element 

to this data category. This new data element requires 

refineries to indicate whether the annual volume of flare 

gas combusted and the annual average higher heating value 

of the flare gas were determined using standard conditions 

of 68 oF and 14.7 psia or the alternative conditions of 60 

oF and 14.7 psia (reported under 40 CFR 98.256(e)(8)). 

This data element is used to determine which of the two 

possible values of the molar volume conversion factor 

should be used as an input to the emission equation and 

therefore is used to determine the correct methodology for 

calculating emissions. Although this new data element was 

added to Part 98 after the July 2010 CBI proposals and 

therefore not included in the CBI proposals (see 75 FR 

79092, December 17, 2010), it is the same in type and 

characteristics to other data elements assigned to this 

category and for which confidentiality determination was 

proposed in the CBI proposals (e.g., temperature at which 

gaseous feedstock and volumes were determined (reported 

under 40 CFR 98.246(a)(4) and type of fuel combusted 

(reported under 40 CFR 98.36(b)(4)). Because the CBI 

proposals addressed the same type of data elements, we do 
Page 75 of 178 

not see a need to propose confidentiality determination for 

these new data elements before taking final action. We 

therefore conclude that it is appropriate to assign this 

data element to this data category and finalize its 

confidentiality determination as part of this data category 

in this action. 

Comment: In the July 7, 2010 CBI proposal, EPA 

proposed that the data in this category meet the definition 

of emission data at 40 CFR 2.301(a)(2)(i) and therefore, 

are not eligible for confidential treatment. Several 

commenters agreed that the data elements in this data 

category are not entitled to confidential treatment. Some 

commenters stated that the information was not sensitive or 

proprietary. One commenter noted that this type of 

information is provided in compliance certifications under 

other regulations. 

However, other commenters disagreed with EPA’s 

proposed determination for this data category. Some 

commenters stated that the methodology used by a reporting 

facility to calculate its GHG emissions was sensitive and 

should be kept confidential, while others believed that the 

capacity of a combustion unit (reported under 40 CFR part 

98, subpart C and used to determine the appropriate Tier 

for calculating CO2, N2O and CH4 emissions from combustion 
Page 76 of 178 

units) can be used by competitors to assess production 

capabilities and derive market strategies that would cause 

competitive harm to the reporter if disclosed to the 

public. Other commenters stated that the type of fuel used 

(reported under 40 CFR part 98, subpart C and used to 

determine the appropriate Tier for calculating CO2, N2O and 

CH4 emissions from combustion units) is proprietary 

information that could be used to determine cost structure. 

One commenter stated that some facilities use 

unconventional fuels in their process and that the use of 

these fuels is not known by their competitors. This 

commenter argued that the use of these unconventional fuels 

represents a key competitive advantage for such facilities 

and should be considered CBI. 

One commenter stated that certain data reported under 

40 CFR part 98, subpart TT (Industrial landfills), 

including the types of materials in each waste stream and 

the method for estimating historical waste disposal 

quantities would allow a competitor to determine processspecific information, such as production quantities, that 

would be harmful to the competitive position of reporters. 

Response: As described in Section II.C.5 of the 

preamble to the July 7, 2010 CBI proposal, the data 

elements in the Calculation Methodology and Methodological 
Page 77 of 178 

Tier category consist of the methodology and other 

information, such as unit capacity and fuel type, that are 

necessary to determine that the emissions were calculated 

using an appropriate methodology. EPA therefore proposed 

to determine that the data elements in this category meet 

the definition of emission data at 40 CFR 2.301(a)(2)(i). 

Although some commenters argued that the data elements in 

this category are sensitive, none claimed nor provided 

information that these data elements do not meet the 

definition of emission data in 40 CFR 2.301(a)(2)(i). 

Further, for the reasons stated below, we do not see a 

concern with the disclosure of certain data elements raised 

by the commenters. Specifically, the type of fuel required 

to be reported is generic information that would not reveal 

specific information about the composition of the fuel. 

For example, a facility that burns waste process gases from 

a manufacturing process is required to report only that 

they combust “off-gas.” We also do not see a concern with 

disclosing the maximum capacity of a process unit. Such 

information is already publicly available from other 

sources (e.g., Title V permits). Further, we disagree with 

the commenter who stated that the types of materials in 

each waste stream and the method for estimating historical 

waste disposal quantities reported under 40 CFR part 98, 
Page 78 of 178 

subpart TT (Industrial Landfills) are sensitive or 

proprietary. To estimate the historical amount of waste 

sent to an industrial landfill, facilities select one of 

the methods specified in the rule. The methods include 

direct measurement of the waste and an alternative 

estimation method for use by reporters who do not have 

measurement records of the waste disposed. The method 

used by the reporter does not disclose any information 

about the design or operating characteristics of production 

processes, historical production volumes, or any other 

production-related information. For the types of materials 

in each waste stream, facilities select from a generic list 

of waste types, an approach that does not reveal any 

proprietary or sensitive information about a process. 

5. Data Elements Reported for Periods of Missing Data that 

are Not Inputs to Emission Equations Category.

Comment: Many commenters on this data category agreed 

with EPA’s proposed determination that the data elements 

meet the definition of emission data in 40 CFR 

2.301(a)(2)(i) and therefore do not qualify for 

confidential treatment. One commenter stated that the data 

elements in this category should be made public because 

poor equipment operation, failure to collect required data, 

and other factors undermine the availability of accurate 
Page 79 of 178 

and complete emissions data. Other commenters agreed that 

the method used to calculate substitute values should be 

publicly available and noted that protocols for determining 

substitute values are often included in State and local 

regulations. 

However, other commenters argued that the method used 

to estimate the missing data constitutes sensitive business 

information, while others asserted that the time period 

over which data was missing is sensitive. One commenter 

indicated that the period during which the BAMM was used 

and the parameter measured for BAMM (reported under 40 CFR 

98.3(c)(7)) should be held confidential. Another commenter 

stated that detailed discussions of what data were missing, 

why they were missing, and how a facility generated 

substitute values provide insight into a facility’s 

underlying process operations and therefore should be 

handled as CBI. 

Response: Although some commenters disagreed with 

EPA’s proposed determination that the data elements in this 

data category are emission data, none of the commenters 

provided rationale for how the data in this category does 

not meet the definition of emission data or any information 

to refute or alter EPA’s assessment that the data elements 

in this category are needed to determine whether a 
Page 80 of 178 

reasonable methodology was used to determine substitute 

values, and whether the annual GHG emissions are correctly 

calculated, thus qualifying these data as emission data 

under 40 CFR 2.301(a)(2)(i). This data category includes 

data elements that indicate the overall quality and 

reliability of the reported GHG emissions, such as the 

number of times substitute values are used, the period 

during which BAMM was used, the reasons for using 

substitute values, and the method used to determine a 

substitute value. For reasons described above and in 

Section II.C.6 of the proposal preamble (75 FR 39094, July 

7, 2010), EPA has determined in this final action, that the 

data elements in this data category are necessary to 

determine the amount of reported emissions and therefore 

qualify as emission data under 40 CFR 2.301(a)(2)(i). 

6. Unit/process Static Characteristics that are Not Inputs 

to Emissions Equations Category.

New Data Elements: EPA has added one new data element 

to this data category. This data element requires 

municipal landfills to report a description of the aeration 

systems used at their landfills, including the aeration 

blower capacity (reported under 40 CFR 98.346(d)(1)). This 

new data element was added to subpart HH by the amendments 

published on October 28, 2010 (75 FR 66434) and was not 
Page 81 of 178 

included in the July 2010 CBI proposals. This data element 

is the same type of data as other data elements included in 

this category in the CBI proposals (e.g., description of 

the landfill gas collection system (reported under 40 CFR 

98.346(i)(7)). For the same reasons set forth below and in 

Section II.C.7 of the July 7, 2010 CBI proposal (see 75 FR 

39111) for the same types of data in this category, we have 

determined that this data element is not CBI. 

Specifically, this data element would provide only general, 

non-sensitive, information (e.g., such as the blower 

capacity for aeration system); such general information 

would not reveal the mechanics or any innovative aspects of 

the system's design and operation that might be considered 

as trade secret or CBI. 

Moved and Double-Listed Data Elements: EPA reassigned 

13 data elements from the Inputs to Emission Equations 

category to this data category and double-listed four data 

elements in both the Inputs to Emission Equations category 

and this category. These data elements are listed in 

Section II.B.1 of this preamble and share the same 

characteristics as those data elements previously assigned 

to the Unit/Process Static Characteristics that are not 

Inputs to Emission Equations category in the July 2010 CBI 

proposals. Specifically, they consist of operating 
Page 82 of 178 

characteristics that do not change over time that are not 

used as inputs to emission equations. As with other data 

elements in this category, none of the 17 data elements 

moved to this data category meet the definition of emission 

data at 40 CFR 2.301(a)(2)(i)(A) because they are not “. . 

. 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. . .” As explained in more 

detail below, in response to comments, EPA re-evaluated the 

data elements in this data category and concluded that the 

proposed categorical determination of non-CBI may not be 

appropriate for all the data elements in this category. 

Based on the comments and EPA’s re-evaluation, EPA 

concluded that four data elements in this data category, 

including three of the 17 data elements moved to this data 

category, are entitled to confidential treatment. These 

three8 data elements determined to be CBI in this action 

are: 

• The typical drum or vessel outage (40 CFR 

98.256(k)(3)); 

• The number of delayed coking drums or vessels (40 CFR 

98.256(k)(3)); and 

 

8 The other data element (not part of the 17 data elements) determined 

to be CBI in this category is discussed below this subsection. 
Page 83 of 178 

• The number of delayed coking drums in a set (40 CFR 

98.256(k)(4)). 

These data elements can be used by competitors to 

determine the actual raw material input to a delayed coking 

unit and would provide insight into innovative operating 

practices that are considered sensitive by the reporter 

because they provide the reporter with a competitive 

advantage over other refineries. For example, changes in 

operating practices can produce increases in production 

capacity without adding new drums/vessels. Further, 

comments from refineries indicate that they consider these 

data elements to be sensitive and take precautions to 

ensure this information is not made public. We are also 

not aware of any public sources for these data elements. 

For the reasons described above, we conclude that these 

three data elements are CBI. 

With respect to the remaining 14 data elements that 

are reassigned to this data category, most include the 

number of emission units, production lines, or abatement 

devices (e.g., number of cement kilns reported by 

facilities not using CEMS, number of nitric acid trains) 

(see Section II.B.1 of this preamble for the list of 

reassigned data elements). They also include the capacity 

of municipal landfills and the dates the landfill opened 

and, if applicable, closed. These data elements have been 
Page 84 of 178 

moved to this category because they are the same type of 

data as many other data elements already assigned to this 

data category (e.g., number of cement kilns reported by 

facilities using CEMS, reported under 40 CFR 98.86(a)(3)). 

For the reasons discussed in more detail in Section II.C.7 

of the July 7, 2010 CBI proposal (see 75 FR 39111), EPA has 

concluded the disclosure of these data elements is unlikely 

to cause competitive harm. These data elements do not 

provide insight into current production rates, raw material 

consumption, or other information that competitors could 

use to discern market share and other sensitive 

information. The number of production units and control 

devices, the design capacity of a landfill, and 

opening/closure dates for municipal landfills constitute 

general information that is already available to the public 

through other sources (e.g., Title V operating permits). 

Comment: This data category primarily includes 

information about the number and capacity of process lines 

and production units, though it also includes a few unique 

data elements that require reporting of the specific type 

of unit or descriptions of processes. Some commenters 

agreed with EPA’s determination that the data in this 

category is not CBI because it is either already available 

to the public through other sources (e.g., Title V permits, 
Page 85 of 178 

National Emissions Inventory (NEI)) or is not likely to 

cause competitive harm if made available. However, several 

commenters expressed concern that competitors could use 

some data elements in this category (e.g., number and 

capacity of production units/process lines), in combination 

with other data to infer information about individual 

facilities, potentially causing reporters competitive harm. 

In particular, some commenters were concerned that capacity 

information, such as the annual capacity of process line or 

production unit, could be used to determine whether a 

competitor has available capacity to expand production to 

meet increased market demand. These commenters argued that 

a competitor could use this information, in combination 

with actual production data, to develop market strategies 

that would be harmful to a reporter. Some commenters 

recommended that EPA allow reporters to make individual 

case-by-case CBI claims for data elements in this data 

category. 

Response: The commenters raised a concern that the 

proposed non-CBI determination may not be appropriate for 

certain data elements in this category. Note that EPA did 

not receive comments specific to the data elements in this 

category objecting to our proposed determination that the 

data elements in this category do meet the definition of 
Page 86 of 178 

emission data because none of the data elements are inputs 

to equations/calculation methods or information otherwise 

needed to calculate or determine emissions. We therefore 

conclude that the proposed determination was appropriate in 

this regard and finalize in this action our determination 

that the data elements in this category are not emission 

data under 40 CFR 2.301 (a)(2)(i). 

In response to the comments that a non-CBI 

determination for this category was not appropriate, EPA 

decided to review individual data elements assigned to this 

data category to determine if the proposed determination 

applies. As part of this process, EPA reviewed public 

comments regarding specific data elements, conducted 

additional reviews of alternative public sources (e.g., 

Title V permits, NEI databases) and re-evaluated whether 

public availability of each data element would be likely to 

cause harm to the competitive position of the reporter. 

Through this process, we have determined that one of 

the data elements in the Unit/Process Static Operating 

Characteristics category are eligible for confidential 

treatment. The data element is the description of new melt 

protection technology adopted by a magnesium production 

facility (reported under 40 CFR 98.206(h)). 
Page 87 of 178 

This data element consists of proprietary information 

about a process that, if disclosed, would likely cause 

competitive harm. Information about a new innovation in 

the design or operation of melt protection technology at a 

magnesium production facility would be trade secret or 

proprietary because such innovations provide cost savings 

or improvements in product characteristics that give a 

reporter a competitive advantage over other manufacturers. 

We have also been unable to identify any public source of 

this data element and therefore, conclude that the data 

element is not already in the public domain. 

Based on our review, EPA has decided not to make a 

final determination for two of the data elements in this 

data category: 

• The description of the reporter’s industrial 

wastewater treatment facility reported by facilities 

subject to subpart II (reported under 40 CFR 

98.356(a)). 

• The description of the gas collection system at an 

underground coal mine (reported under 40 CFR 

98.326(q)). 

In most cases, these data elements are likely to 

consist of general information that does not include any 

trade secrets or other sensitive information about the 

production processes that produce the relevant wastewater 

or the gas collection system at an underground coal mine. 
Page 88 of 178 

However, while we consider it unlikely that most reporters 

would consider the description of wastewater treatment 

facility or the gas collection system at an underground 

coal mine to be sensitive, we also note that these data 

elements require reporters to submit detailed descriptions 

and diagrams of their facilities that may contain 

information that is proprietary or sensitive or may provide 

insight into other processes. For this reason, we have 

decided not to make a CBI determination for these data 

elements, but to allow facilities to make case-by-case CBI 

claims pursuant to 40 CFR part 2, subpart B. 

Except for the data elements discussed above, we have 

determined that all other data elements in this data 

category are not CBI for the same reasons we set forth in 

Section II.C.7 of the July 7, 2010 CBI proposal (see 75 FR 

39111). We disagree with commenters who recommended that 

capacity data and the number of process lines or units be 

held confidential because their disclosure would be likely 

to cause competitive harm. This information is generally 

included in both construction and Title V operating permits 

as well as in permit applications and permit fact sheets 

and is therefore already publicly available. The 

permitting authority uses information on the number of 

individual units and their capacity to determine what type 
Page 89 of 178 

of permits are required and which State and Federal 

regulations apply. Although permits generally list only 

capacity rates based on maximum hourly production, persons 

with expert knowledge on a specific process can easily use 

this information to estimate the annual capacity of the 

process. Capacity information is also available from 

sources besides permits as well. For example, annual 

capacity information for titanium dioxide and soda ash 

production facilities is published in the USGS Minerals 

Yearbook and capacity data for phosphoric acid production 

facilities are available from the International Fertilizer 

Development Center. Because capacity and number of 

production units are already publicly available for these 

data, they do not qualify for confidential treatment (see 

40 CFR 2.208(c)). 

7. Unit/Process Operating Characteristics Category that 

are not Inputs to Emission Equations.

New Data Elements: EPA has added four new data 

elements to this data category (see Section II.B.1 of this 

preamble for a list of the new data elements). The new 

data element are reported by municipal landfills that use 

an alternative methane correction factor instead of the 

default factor provided in 40 CFR part 98, subpart HH. The 

data elements consist of information on the operation of 
Page 90 of 178 

aeration systems at the landfill, such as the number of 

hours it was operated and the fraction of the landfill 

subject to aeration. These new data element were added to 

subpart HH by the amendments published on October 28, 2010 

(75 FR 66434) and were not included in the July 2010 CBI 

proposals. These data elements are the same type of data 

as other data elements included in this category in the 

July 2010 CBI proposals (e.g., the type of cover material 

used and the surface area of the landfill (reported under 

40 CFR 98.346(f)). Like these other data elements in this 

category, the four data elements at issue provide general 

information about the operation of a municipal landfill; 

such information does not reveal any trade secrets or other 

sensitive business information regarding the design or 

operation of an aeration system or the landfill. Further, 

this type of data on landfills is generally already 

publicly available from the municipalities operating 

landfills. We have therefore concluded that the release of 

this data will not cause substantial competitive harm to 

the reporter and are finalizing our determination that 

these data elements are non-CBI in this action. 

Moved and Double-Listed Data Elements: In response to 

comments stating that CO2 generated by a process is not 

emission data if it is collected, EPA has added data 
Page 91 of 178 

elements to this data category that apply to generated CO2

collected either for use on site or for shipment off-site. 

We are including these data elements in the Unit/Process 

Operating Characteristics that are Not Used as Inputs to 

Emission Equations Data Category, because these data 

elements relate to operating characteristics of a 

production process that may vary over time. As with the 

other data elements in this category, they do not meet the 

definition of emission data at 40 CFR 2.301(a)(2)(i)(A). As 

discussed in more detail below in this subsection, we 

received comments that the proposed category-based non-CBI 

determination may not be appropriate for all the data 

elements assigned to this category and, in response, we 

reviewed individual data elements assigned to this data 

category to determine whether the proposed determination 

applies. For the generated CO2 collected either for use on 

site or for shipment off-site, we determined that they are 

not CBI. Although information on the amount of GHG 

generated by an industrial process (e.g., ammonia 

production, lime production, etc) is not already publicly 

available, public availability of the data is not likely to 

cause substantial harm to the competitive position of the 

reporter because the data reported is the GHG generated by 

the industrial process and does not reveal any sensitive 
Page 92 of 178 

information on how much of the GHG generated was collected, 

how much of the collected GHG was used onsite (e.g., for 

urea production or sugar refining), or how much was 

transferred off site. 

As described in Section II.A.5 of this preamble, EPA 

moved 40 data elements that were inadvertently placed in 

the Inputs to Emission Equations category in the July 2010 

CBI proposals and double-listed six data elements in both 

the Inputs to Emission Equations category and the 

Unit/Process Operating Characteristics that are Not Inputs 

to Emission Equations category. These 46 data elements 

share the same characteristics as those data elements 

previously assigned to the Unit/Process Operating 

Characteristics that are not Inputs to Emission Equations 

category in the July 2010 CBI proposals. Specifically, 

they consist of operating parameters that change over time 

that are not used as inputs to emission equations. For a 

list of the reassigned data elements, see the memorandum 

“Final Data Category Assignments and Confidentiality 

Determinations for Part 98 Reporting Elements” (see Docket 

EPA-HQ-OAR-2009-0924 and the website, 

http://www.epa.gov/climatechange/emissions/ghgrulemaking.ht

ml). As with the other data elements in this category, 

none of the 46 data elements moved to this data category 
Page 93 of 178 

meet the definition of emission data at 40 CFR 

2.301(a)(2)(i)(A) because they are not “. . . 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. . .” As discussed in more detail 

below in this subsection, we received comments that the 

proposed category-based non-CBI determination may not be 

appropriate for all the data elements assigned to this 

category and, in response, we reviewed individual data 

elements assigned to this data category to determine 

whether the proposed determination applies. Based our 

review, we determined that 17 of the 46 data elements are 

entitled to confidential treatment. The 17 data elements 

are as follows: 

• The average annual value of the exhaust gas flow rate 

reported by refineries (40 CFR 98.256(f)(7)). 

• The average annual value of %CO2 reported by refineries 

(40 CFR 98.256(f)(7)). 

• The average annual value of %CO reported by refineries 

(40 CFR 98.256(f)(7)). 

• The average annual value of the inlet air flow rate 

reported by refineries (40 CFR 98.256(f)(8)). 

• The average annual value of oxygen-enriched air flow 

rate reported by refineries (40 CFR 98.256(f)(8)). 

• The average annual value of %O2 reported by refineries 

(40 CFR 98.256(f)(8)). 

• The average annual value of %Ooxy reported by 

refineries (40 CFR 98.256(f)(8)). 
Page 94 of 178 

• The average annual value of %CO2 reported by refineries 

(40 CFR 98.256(f)(8)). 

• The average annual value of %CO reported by refineries 

(40 CFR 98.256(f)(8)). 

• The average annual value of the inlet air flow rate 

reported by refineries (40 CFR 98.256(f)(9)). 

• The average annual value of oxygen-enriched air flow 

rate reported by refineries (40 CFR 98.256(f)(9)). 

• The average annual value of %N2oxyreported by 

refineries (40 CFR 98.256(f)(9)). 

• The average annual value of %N2,exhaust reported by 

refineries (40 CFR 98.256(f)(9)). 

• The number of regeneration cycles or measurement 

periods during the reporting year for each catalytic 

cracking units, traditional fluid coking units, and 

catalytic reforming units reported by refineries (40 

CFR 98.256(f)(13). 

• The average coke burn-off quantity per cycle or 

measurement period for each catalytic cracking units, 

traditional fluid coking units, and catalytic 

reforming units reported by refineries (40 CFR 

98.256(f)(13)). 

• Annual volume of recycled tail gas (if not used to 

calculate the recycling correction factor (reported 

under 40 CFR 98.256(h)(5)). 

• Annual average mole fraction of carbon in the tail gas 

(if not used to calculate recycling correction factor) 

(reported under 40 CFR 98.256(h)(5)). 

For these data elements we determined that public 

availability of these data would cause competitive harm to 

reporters for the following reasons. The operating 

parameters for catalytic cracking units (i.e., 40 CFR 

98.256(f)(7) through (f)(9)) provide insight into the 

operation of the production process that may reveal 

operating conditions that are considered sensitive by the 
Page 95 of 178 

reporter because they provide the reporter with a 

competitive advantage over other refineries. The average 

coke burn-off quantity per cycle/measurement period for 

individual catalytic cracking units, traditional fluid 

coking units, and catalytic reforming units (reported under 

40 CFR 98.256(f)(13)) discloses information about the 

operation of the unit (e.g., the level of reforming), and 

indicates the quantity of naphthalene the feedstock and the 

quantity of aromatics produced. The annual volume of tail 

gas recycled and the mole fraction of carbon in the tail 

gas provide information about the capacity of the sulfur 

plant, its ability to process different types of crude oil, 

and the products the refinery can produce. Further, 

comments from refineries indicate that they consider these 

data elements to be sensitive and take precautions to 

ensure this information is not made public. We are also 

not aware of any public sources for these data elements. 

For the reasons described above, we conclude that these 

data elements are CBI. 

With respect to the remaining 29 data elements moved 

to the data category from Inputs to Emissions Equations, 

for the reasons discussed in more detail in Section II.C.7 

of the July 7, 2010 CBI proposal (see 75 FR 39111), EPA has 

concluded the disclosure of these data elements is unlikely 
Page 96 of 178 

to cause competitive harm. These data elements do not 

provide insight into current production rates, raw material 

consumption, or other information that competitors could 

use to discern market share and other sensitive 

information. They consist of data elements such as the 

amount and carbon content of gases sent to flares at 

refineries, which is not considered to be sensitive 

information. 

Comment: The data elements in this data category 

consist of operating characteristics related to production 

processes. Unlike the Unit/Process Static Characteristics 

category discussed Section II.B.6 of this preamble, these 

data elements change with changes in operations or 

processes. Some commenters agreed with EPA’s proposed 

determination that the data in this category would not 

qualify for confidential treatment under CAA section 114(c) 

because it was general information that was not likely to 

cause competitive harm to reporters. However, several 

commenters expressed concern that competitors could use 

some data elements in this category, in combination with 

other data, to discern information about individual 

facilities and processes, causing competitive harm. Some 

commenters noted that many of the data elements in this 

category are not already available to the public, 
Page 97 of 178 

supporting the assertion that they would cause competitive 

harm if disclosed. For example, one commenter noted that 

the number of operating kilns reported by a cement 

manufacturing facility (reported under 40 CFR 98.86(a)(3) 

and 98.86(b)(4)) was not information already available to 

the public and could be used by competitors to determine 

the amount of product produced. This commenter argued that 

information on the amount of product produced by a facility 

could be used to determine other information, such as 

market share and pricing structures that could put the 

reporter at a competitive disadvantage. Other commenters 

recommended that the quality assurance/quality control 

data, collected by facilities to verify data provided by 

raw material suppliers, should be held confidential because 

competitors could use these data to determine product 

composition and process design or operating characteristics 

that reporters consider proprietary. One commenter stated 

that certain information submitted as part of BAMM 

extension requests was sensitive information requiring 

confidential treatment. This commenter specifically 

identified the following data elements from BAMM extension 

requests as confidential: the reason for the extension 

request (40 CFR 98.3(d)(2)(ii)(C)) and the planned 

installation date of monitoring equipment (40 CFR 
Page 98 of 178 

98.3(d)(2)(ii)(F)). The commenter noted that this 

information could be used by competitors to determine a 

company’s ability to capitalize on specific market 

opportunities and would allow competitors to target markets 

based on weaknesses and vulnerabilities. The commenter 

further stated that information on future shutdowns would 

allow competitors to increase production during a 

reporter’s shutdown and would likely cause serious harm to 

the reporter’s competitive position. 

Several commenters recommended that EPA not collect 

some or all of the data elements in this data category. 

These commenters argued that other programs, such as Title 

V permitting and TRI, do not require facilities to report 

operating data, but instead require facilities to maintain 

records of the data for inspection by EPA or State 

agencies. Other commenters recommended EPA allow reporters 

to make individual case-by-case CBI claims for data 

elements in this data category. 

Response: The comments raised a concern that the 

proposed non-CBI determination may not be appropriate for 

certain data elements in this category. Note that EPA did 

not receive comments specific to the data elements in this 

category objecting to our proposed determination that the 

data elements in this category do meet the definition of 
Page 99 of 178 

emission data because none of the data elements are inputs 

to equations/calculation methods or information otherwise 

needed to calculate or determine emissions. We therefore 

conclude that the proposed determination was appropriate in 

this regard and finalize in this action our determination 

that the data elements in this category are not emission 

data under 40 CFR 2.301 (a)(2)(i). 

In response to the comments that a non-CBI 

determination for this category was not appropriate, EPA 

therefore reviewed individual data elements assigned to 

this data category to determine whether the proposed 

determination applies. As part of this process, EPA 

reviewed public comments regarding specific data elements, 

conducted additional reviews of alternative public data 

sources (e.g., Title V permits, NEI databases) and reevaluated whether each data element would be likely to 

cause harm to a reporter’s competitive position. Through 

this process, we have determined that ten data elements in 

the Unit/Process Operating Characteristics category are 

CBI. These data elements include the following: 

• The reason for submitting a BAMM extension request 

(reported under 40 CFR 983(d)(ii)(C)). 

• The reason why equipment was not or could not be 

obtained and installed during a planned shutdown 

between October 30, 2009 and April 1, 2010 as reported 
Page 100 of 178 

in a BAMM extension request(reported under 40 CFR 

98.3(d)(2)(ii)(E)). 

• Planned installation date for monitoring equipment as 

reported in a BAMM extension request (reported under 

40 CFR 98.3(d)(2)(ii)(F)). 

• The anticipated date on which a facility applying for 

a BAMM extension will begin using the monitoring 

methods specified in Part 98 (reported under 40 CFR 

98.3(d)(2)(ii)(F)). 

• The sampling analysis results of carbon content of 

feedstock as determined from QA/QC supplier data under 

40 CFR 98.74(e) by ammonia manufacturing facilities 

(reported under 40 CFR 98.76(b)(6)). 

• The mass fraction of each sample analyzed for all 

tests used to QA/QC the carbonate-based mineral mass 

fraction of raw materials charged to glass 

manufacturing facilities (reported under 40 CFR 

98.146(b)(5)(iii)). 

• The explanation of change greater than 30 percent in a 

magnesium production facility’s cover gas usage rate 

(reported under 40 CFR 98.206(g)). 

• The types of materials loaded that have an equilibrium 

vapor phase concentration of CH4 of 0.5 volume per cent 

or greater (reported under 40 CFR 98.246(p)(2). 

• The sampling analysis results for carbon content of 

petroleum coke consumed by a silicon carbide 

production facility as determined for QA/QC of data 

provided by raw material suppliers (reported under 40 

CFR 98.286(b)(7)). 

• The sampling analysis results of carbon content of 

petroleum coke consumed by titanium dioxide production 

facilities for QA/QC of data provided by raw material 

suppliers (reported under 40 CFR 316(b)(13)). 

EPA has learned that these data elements are not 

publicly available information, and they consist of 

proprietary information about a process, method of 

operation, composition of raw materials or products that 

are commonly considered CBI. 
Page 101 of 178 

EPA agrees with commenters who recommended that 

certain data elements submitted as part of BAMM extension 

requests are eligible for confidential treatment. At the 

time of the CBI proposals, we believed the reason for 

requesting a BAMM extension (reported under 40 CFR 

98.3(d)(2)(ii)(C)) and the reason why equipment was not (or 

could not be) installed (reported under 40 CFR 

98.3(d)(2)(ii)(E)) would be generic information that would 

not reveal any sensitive operating information. However, 

since that time EPA has reviewed a number of BAMM extension 

requests and determined that they contain more detailed 

information, such as process diagrams and operational 

information, than we had previously anticipated. We also 

note that many facilities have claimed these data as CBI in 

their BAMM extension requests because they provide insight 

into facility-specific operating conditions or process 

design that are not available from other sources and would 

harm their competitive position if released. We also agree 

with those commenters who stated that the planned 

installation date and the date of anticipated startup 

(reported under 40 CFR 98.3(d)(2)(ii)(F)) provides 

sensitive information regarding future process shutdowns. 

These data elements likely would cause competitive harm if 

disclosed because competitors could use this information to 
Page 102 of 178 

anticipate and potentially benefit from future decreases in 

product supply. For example, a competitor able to 

anticipate the shutdown of a reporter’s facility and 

resulting decrease in product supply, could use this 

information to steal customers from a reporters by 

increasing its own production or could adjust the price of 

their own products. 

We also agree that the results of sampling and 

analysis data used to quality assurance/quality control 

data on the composition of raw materials would be likely to 

cause competitive harm to reporters and is not available 

from other sources. Competitors could use the composition 

of raw materials to identify a firm’s raw material supplier 

and estimate production costs. In the case of glass 

manufacturing facilities, the data would also reveal 

proprietary information about product formulation or 

recipe. Since this information is not available from other 

sources and may be used by competitors to devise 

competitive strategies that would likely harm the 

competitive position of the reporter, EPA has determined 

that these data are eligible for confidential treatment. 

We have also determined that the data element reported 

by petroleum refineries under subapart Y related to the 

types of materials loaded that have an equilibrium vapor 
Page 103 of 178 

phase concentration of CH4 of 0.5 volume per cent or greater 

(40 CFR 98.246(p)(2)) are entitiled to confidential 

treatment. EPA has learned that this data is only released 

in aggregate form by EIA. This data could be used by 

comeptetitors in combination with other information to 

discern the approximate quantities of materials used in 

loading operations. Information of this type would provide 

competitors insight into the shipping activities conducted 

at refineries. 

Except for the data elements listed above, we conclude 

for the reasons set forth below and in Section II.C.7 of 

the July 7, 2010 CBI proposal that the proposed non-CBI 

determination is appropriate for all other data elements 

belonging to this data category and are finalizing these 

determinations in this action. We disagree with commenters 

who recommended that the number of units operated during a 

reporting year should be held confidential. This 

information cannot be used to determine production data for 

a facility and would not provide insight into a facility’s 

design or operating procedures. It is also unlikely to 

reveal any information regarding future production that 

would be useful to competitors or allow competitors to 

anticipate future shutdowns. EPA therefore continues to 
Page 104 of 178 

conclude that public availability of these data elements 

would not cause competitive harm to the reporter. 

We also disagree with commenters who recommended that 

EPA allow facilities to maintain records of operating data 

rather than submitting the data to EPA. We disagree with 

commenters who recommended we allow facilities to make 

case-by-case CBI claims. As explained in detail in the 

July 2010 CBI proposal, because these data elements are the 

same or similar in types and characteristics, we believe 

that it is appropriate to determine their confidentiality 

status on a category basis instead of making decisions on 

individual case-by-case CBI claims. 

8. Test and Calibration Methods Category.

Moved Data Elements: EPA determined that the 

following seven data elements were incorrectly assigned to 

the Methods and Methodological Tier category: 

• The basis for the unit-specific factor (i.e., select 

from average of multiple source tests; Single source 

test within last 5 years; Single source test more than 

5 years ago; Source test of identical unit at same 

facility)(40 CFR 98.256(i)(8)). 

• The basis for the CO2 emission factor used in Equation 

Y-16b (40 CFR 98.256(j)(8)). 

• The basis for the carbon emission factor used in 

Equation Y-16b (40 CFR 98.256(j)(8)). 

• Indication of the measurement or estimation method 

used for measuring volumetric flow discharge for each 

process vent (40 CFR 98.256(l)(5)). 
Page 105 of 178 

• Indication of the measurement or estimation method 

used for measuring average mole fraction of each GHG 

for each process vent (40 CFR 98.256(l)(5)). 

• The basis for the CH4 emission factor used (i.e., 

select from weekly or more often measurements; 

Periodic (less frequent than weekly) measurements; 

average of multiple source tests; One-time source 

test; Default factor) for uncontrolled blowdown 

systems (40 CFR 98.256(m)(3)). 

• Basis for the mole fraction of CH4 in the vent gas from 

the unstabilized crude oil storage tank (i.e., 

measurement of methane composition; engineering 

estimate of methane composition based on crude 

composition; default) for storage tanks that process 

unstabilized crude oil (40 CFR 98.256(o)(4)(vi)). 

EPA has determined that these data elements provides 

information on how specific parameters or emission factors 

were determined (e.g., weekly measurements versus daily 

measurements, direct measurement versus engineering 

estimates) and not on the calculation method used to 

calculate the GHG emissions. Therefore, we have assigned 

these data elements to the Test and Calibration methods 

category, which contains similar data elements. For 

example, 40 CFR 98.256(i)(8) is similar to 40 CFR 

98.256(e(10), which requires refineries to report the basis 

for the value of the fraction of carbon in the flare gas 

contributed to methane by selecting from the following 

list: daily or more often measurements; weekly 

measurements; periodic (less frequent than weekly) 

measurements; One-time measurement; engineering estimate; 
Page 106 of 178 

default (0.4); and other. Since these data elements are 

similar in type to the data elements included in this 

category, we have concluded that the non-CBI determination 

applied to the Test and Calibration Methods category also 

applies to these data elements. 

Comment: This data category includes information on 

calibration methods used to calibrate monitoring 

instruments, the frequency of sampling and analysis, 

methods used in performance tests, and methods used for 

analyzing the compositions of materials. Few commenters 

submitted comments on this data category. Many of those 

commenters agreed with EPA’s proposed determination that 

disclosure of the data elements in this category would not 

cause competitive harm to reporters. One commenter noted 

that the type of test methods and other data elements 

included in this data category are generally already 

specified in the GHG Reporting Rule. This commenter 

asserted that data elements confirming that the correct 

monitoring methods or calibration procedures were used are 

generally not the type of data considered competitively 

sensitive by reporters. 

A few commenters disagreed with EPA’s proposed 

determination for this data category. One commenter 

thought that the description of the BAMM (reported under 40 
Page 107 of 178 

CFR 98.3(c)(7)) should be held as confidential information, 

but did not provide any explanation or rationale for why 

this data element would be likely to cause substantial harm 

to their competitive position. One commenter indicated 

that the method used to measure the frequency and duration 

of anode effects or overvoltage (reported under 40 CFR 

98.66(d)) should be considered confidential. This 

commenter stated that information about the method used to 

measure these parameters could be used in combination with 

other reported data to estimate other parameters that would 

cause competitive harm (e.g., aluminum production). This 

commenter also identified the date on which tests were 

completed to determine emissions factors (reported under 40 

CFR 98.66(c)(3)) as confidential, but did not provide any 

rationale for why this data element would cause competitive 

harm. 

Response: Although some commenters disagreed with our 

proposed determination for this category, only one provided 

rationale supporting that claim. However, for the reasons 

explained below, we disagree with the commenter that the 

method used to measure parameters, such as the frequency 

and duration of anode effects or overvoltage (reported 

under 40 CFR 98.66(d)), could be used to derive other 

sensitive information that would cause competitive harm. 
Page 108 of 178 

As previously described in Section II.C.9 in the proposal 

preamble (75 FR 39094, July 7, 2010), the data elements in 

this category, including those noted in the comments, 

consist of descriptions of devices or methods used to 

measure a parameter, the method and frequency of 

calibrating measurement devices, and the frequency and 

analytical methods used for conducting performance tests or 

sample analysis. The type of device used to make the 

measurement (e.g., flow meter, weighing scales) and the 

frequency and method of calibrating the measuring device do 

not reveal the actual values of the measured parameters or 

provide any other sensitive information about the design or 

operating characteristics of a process. The standardized 

analytical method and the frequency of sample collection 

and analysis are generally specified by each subpart and do 

not provide any insight into the design or operating 

conditions of a facility. For the reasons stated above and 

in Section II.C.9 in the proposal preamble (75 FR 39094, 

July 7, 2010), we conclude that our proposed non-CBI 

determination for this data category is appropriate. 

9. Direct Emitter Production/Throughput Data Elements and 

Raw Materials Consumed that Are Not Inputs to Emission 

Equations Categories
Page 109 of 178 

Moved and Double-Listed Data Elements: After 

reviewing industry comments related to the capture of 

process emissions for use on site, EPA determined that the 

data element required to be reported by 40 CFR 

98.196(a)(17)(i) was incorrectly assigned to the 

Unit/Process Operating Characteristics that are Not used as 

Inputs to Emission Equations Data Category. EPA has 

determined that this data element, which requires lime 

manufacturers to report the amount of CO2 captured for use 

in on-site processes, is information about materials used 

in a production process. Such information relates to 

production (such as the actual production rate) and not 

unit/process operating characteristics. Therefore, we have 

assigned this data element to the Production/Throughput 

Data That are Not Inputs to Emissions Equations Data 

Category (which contains similar data elements (e.g., 40 

CFR 98.176(b)(13) requiring ammonia facilities to report 

the amount of CO2 from the ammonia production process used 

to produce urea) and have concluded that the CBI 

determination applied to that category also applies to this 

data element. 

As we described in Section II.A.5, EPA has moved three 

data elements from the Inputs to Emission Equations 

category to the Production/Throughput Data that are Not 
Page 110 of 178 

Inputs to Emission Equations and double-listed two data 

elements in these two categories. Each of these five data 

elements requires the reporting of either the quantity or 

composition of a product, which are the same type of data 

assigned to this category. For example, the annual 

quantity of petrochemicals produced (40 CFR 98.246(a)(5)), 

volume or mass of off-specification product produced (40 

CFR 98.246(a)(9)), and monthly production of titanium 

dioxide (40 CFR 98.316(b)(8)) are the same type of data as 

40 CFR 296(b)(6) (monthly production of soda ash)and 40 CFR 

98.316(b)(5) (annual production of titanium dioxide). The 

cumulative volumetric biogas flow and the weekly average CH4

concentration for each week that biogas is collected for 

destruction reported by wastewater treatment facilities 

using daily sampling ((40 CFR 98.356(d)(2) and (d)(3)) are 

also the same as the other data elements listed is this 

category because they can be used to determined the average 

weekly biogas production for the wastewater treatment 

facility. Since these five data elements are the same type 

of data as the other data elements in this category, we 

have concluded that the CBI determination applied to that 

category also applies to this data element. 

Comment: Many commenters supported EPA’s proposed 

determination that the data in these two data categories 
Page 111 of 178 

(none of which are inputs to equations/calculation methods 

or information otherwise needed to calculate or determine 

emissions) qualify for confidential treatment. The 

commenters agreed that the data elements in these data 

categories should be kept confidential because disclosure 

of these data would cause substantial harm to the 

competitive position of reporters. They argue that 

disclosure of these data could provide competitors with 

insight into a facility’s operational strengths and 

weaknesses as well as revealing information about raw 

material sources. Some commenters argued that the data are 

currently held as CBI under other Federal programs that 

collect these data. Others agreed with EPA’s proposal that 

the data elements in these data categories do not meet the 

definition of emission data (40 CFR 2.301(a)(2)(i)). 

Several commenters identified specific data elements 

from these data categories as confidential and provided 

information describing why they considered the data 

sensitive. For example, commenters stated that data 

elements that provide the chemical composition of products 

could be used by competitors to deduce the types of 

feedstock or raw materials used in the process. Other 

commenters stated that data on the quantities of product 

and by-products produced and raw materials consumed should 
Page 112 of 178 

be kept confidential because this information can be used 

by competitors to determine production costs, process 

efficiency, and market share. 

Although most commenters agreed with EPA’s proposed 

determinations for these two data categories, a few 

commenters believe that EPA should make data in these 

categories available to the public. Some commenters 

recommended that EPA disclose the data in these data 

categories because it would promote confidence in the data 

and would be consistent with the CAA. They stated that 

these data elements are verification data that are 

necessary to ensure the reported emissions are accurate. 

They argued that since the data elements may be used to 

verify the GHG emissions, they meet the definition of 

emission data in 40 CFR 2.301(a)(2)(i). They further 

argued that these data elements are especially important 

where facilities use indirect measurement methods (e.g., 

emission factors) to estimate emissions. Another commenter 

stated that EPA should publish production throughput and 

raw material consumption data because this information is 

essential for making comparisons between facilities. This 

commenter argued that the data in these data categories 

should be made public because, without this information, 

the public would not be able to determine the amount of 
Page 113 of 178 

GHGs per unit of production, which is useful for assessing 

and comparing the carbon efficiency of a facility. 

Response: We disagree with those commenters who 

argued that, because the data in these categories are used 

to verify the reported GHG emissions, these data meet the 

definition of emission data in 40 CFR 2.301(a)(2)(i). As 

we described in the July 7, 2010 CBI proposal, none of the 

data elements in these data categories are used by 

reporters to calculate GHG emissions under Part 98. 

Although the data may be used to verify the accuracy of the 

reported emissions, we do not consider them “necessary to 

determine” the amount of GHG emissions under Part 98 

because emissions are in fact calculated without these data 

elements. Therefore, these data elements do not meet the 

definition of emission data in 40 CFR 2.301(a)(2). We 

agree that these data elements are useful for making 

comparisons between industries and individual facilities 

and could be useful to industry, non-government 

organizations (NGOs), public, and other stakeholders when 

assessing any regulatory program. However, CAA section 

114(c) requires that EPA afford confidential treatment to 

CBI (except for emission data). These commenters did not 

claim or provide any information indicating that data 

elements in these categories are not CBI. Further, many 
Page 114 of 178 

other commenters provided information explaining how the 

release of data in this category might provide insight into 

production rates, methods, and efficiencies causing harm to 

the competitive position of reporters. We therefore 

conclude that our proposed CBI determinations for these 

data categories are appropriate and finalize this CBI 

determination in this action. 

10. Direct Emitter Data Elements for Process-specific and 

Vendor Data Submitted in BAMM Extension Requests Category.

Comment: Only a few commenters submitted comments on 

this data category. The majority of those commenters 

agreed with EPA’s proposed determination that disclosure of 

these data would substantially harm the competitive 

position of reporters and that therefore the data in this 

category qualify for confidential treatment. A few 

commenters provided very general statements that disclosure 

of these data would be consistent with CAA and the 

Greenhouse Gas Reporting Program (GHGRP). We have also 

received comments generally claiming that all or most Part 

98 data elements should be made available to the public. 

However, these commenters did not provide any specific 

rationale for that position. 

Response: Although some commenters disagreed with our 

proposed determination that data in this category qualify 
Page 115 of 178 

as CBI, none provided any rationale or information for us 

to evaluate whether our proposed determination is not 

appropriate for any data elements in this data category. 

The commenters did not explain how the data in this 

category meet the definition of emission data, provide 

alternative public sources demonstrating that the data is 

already publicly available, or provide information 

demonstrating how disclosure of the data elements in this 

category would not cause competitive harm. Furthermore, 

most comments on this data category confirm that disclosure 

of the data elements in this category could divulge 

sensitive information about specific processes used by the 

facility or vendor information, and the disclosure of this 

information is likely to cause substantial harm to 

reporters. In light of the above, we conclude that our 

proposed CBI determination for this data category is 

appropriate and finalize that determination in this action. 

C. Suppliers

1. Major Changes to Determinations for Supplier Data 

Elements Since Proposal

We are finalizing our category assignments of the data 

elements in the supplier subparts specified in Section I.C. 

of this preamble for the 11 supplier data categories and 

our confidentiality determinations for these 11 supplier 
Page 116 of 178 

data categories, including the individual determinations 

for certain data elements in the following categories: GHGs 

Reported, Production/Throughput Quantities and Composition, 

and Unit/Process Operating Characteristics. Major changes 

to the determinations for the supplier data elements since 

our CBI proposals include: 

• Although we had proposed that the total CO2 supplied as 

reported under subpart PP would be non-CBI, we have 

determined in this final action that this information 

is CBI for industrial CO2 production facilities (e.g., 

ammonia production facilities that collect CO2 for 

transfer off site), is non-CBI for CO2 production 

wells, and is CBI for importers and exporters for the 

reasons specified in Section II.C.3 of this preamble. 

• In this final action, we have added the following new 

data element to the GHGs Reported category: the total 

annual CO2 mass supplied in metric tons as calculated 

using Equation PP-3b (40 CFR 98.426(c)(2)(iii)). We 

have determined that this data element is CBI when 

reported by industrial production facilities, and is 

non-CBI when reported by CO2 production wells for the 

reasons specified in Section II.C.3 of this preamble. 

• Although we had proposed a non-CBI status for the 

following data elements in the GHGs Reported data 

category, we have determined in this final action that 

they qualify as CBI under the following conditions for 

the reasons specified in Section II.C.3 of this 

preamble. These data elements are as follows: 

– The total combined supplier level CO2e (40 CFR 

98.3(c)(5)(i)) is CBI if the reporter produces, 

imports, exports or otherwise supplies just one 

product and if EPA has determined that the amount of 

that one product produced, imported, exported or 

otherwise supplied is CBI. 

– The quantity of each GHG (40 CFR 98.3(c)(5)(ii)) is 

CBI if the reporter produces, imports, exports, or 

otherwise supplies just one product and if EPA has 

determined that the amount of that one product 
Page 117 of 178 

produced, imported, exported or otherwise supplied 

is CBI. 

• EPA has decided not to make final confidentiality 

determinations for data elements reported by importers 

of Coal-Based Liquids and Petroleum Products (subparts 

LL and MM) describing the amount and type of materials 

imported. These data elements are described in the 

GHGs Reported and Production/Throughput data 

categories. For additional information, see Sections 

II.C.3 and II.C.4 of this preamble. 

• In this final action, we have added the following two 

new data elements to the Production/Throughput 

Quantities and Composition data category. We have 

also determined, as explained in Section II.C.4 of 

this preamble, that these data elements are CBI when 

reported by industrial production facilities, and nonCBI when reported by CO2 production wells. The data 

elements are as follows: 

– The total annual CO2 mass through main flow meter(s) 

in metric tons (40 CFR 98.426(c)(2)(i)). 

– The total annual CO2 mass through subsequent flow 

meter(s) in metric tons (40 CFR 98.426(c)(2)(ii)). 

• Although we had proposed a non-CBI status for the 

following data elements in the Production/Throughput 

data category, we have determined in this final action 

that they qualify as CBI for the reasons specified in 

Section II.C.4 of this preamble. These data elements 

are as follows: 

– Facility-level and meter-level CO2 supply data 

reported by industrial CO2 production facilities 

under subpart PP. 

– The amount of CO2 supplied to each of 13 types of 

end-users reported under subpart PP. 

• Although we had proposed a non-CBI status for the 

following data elements in the Unit/Process Operating 

Characteristics data category, we have determined in 

this final action that they qualify as CBI for the 

reasons specified in Section II.C.6 of this preamble. 

These data elements are as follows: 

– The dates on which fluorinated GHGs are imported 

and/or exported reported under subpart OO (40 CFR 

98.416(c)(3) and (d)(5)). 
Page 118 of 178 

– The port of entry or export reported under subpart 

OO (40 CFR 98.416(c)(4) and (d)(5)). 

– The reason for submitting a BAMM extension request 

and reason why monitoring equipment was not 

installed by the required deadline reported under 

subpart A (40 CFR 98.3(d)(2)(ii)(C)) and 

98.3(d)(2)(ii)(E)). 

– The dates of planned installation and anticipated 

compliance with monitoring requirements submitted in 

BAMM extension requests reported under subpart A (40 

CFR 98.3(d)(2)(ii)(F)). 

• In this final action, we have added the following new 

data element to the Unit/Process Operating 

Characteristics data category: location of each flow 

meter in relation to the point of segregation (40 CFR 

98.426(c)(2)(iv)). We have also determined that this 

data element is not CBI for the reasons specified in 

Section II.C.6 of this preamble. 

• In this final action, we have added the following six 

new data elements to the Amount and Composition of 

Materials Received data category. We have also 

determined that these data elements are CBI for the 

reasons specified in Section II.C.10 of this preamble. 

The data elements are as follows: 

– EIA crude stream code (40 CFR 98.396(a)(20)(v)). 

– Crude stream name (40 CFR 98.396(a)(20)(v)). 

– Generic name for crude stream (40 CFR 

98.396(a)(20)(vi)). 

– EIA two-letter country or state production area code 

for batch (40 CFR 98.396(a)(20)(vi)). 

– Volume of crude oil in barrels injected into a crude 

oil supply or reservoir (40 CFR 98.396(a)(22)). 

– Indication of whether the material is a blended noncrude feedstock or blended product (40 CFR 

98.396(d)(1)(iii). 

The rationales for these changes can be found below in 

Sections II.C.2 through C.13 of this preamble and in the 

“Proposed Confidentiality Determinations and Data Handling 

Procedures for Part 98 Data: Responses to Public Comments” 
Page 119 of 178 

(available in the Docket EPA-HQ-OAR-2009-0924 and on the 

website 

http://www.epa.gov/climatechange/emissions/ghgrulemaking.ht

ml). 

A final list of all the data elements in each supplier 

data category, by subpart, is provided in a memorandum (see 

Memorandum “Final Data Category Assignments and 

Confidentiality Determinations for Part 98 Reporting 

Elements” in Docket EPA-HQ-OAR-2009-0924 and on the website 

(http://www.epa.gov/climatechange/emissions/ghgrulemaking.h

tml). 

2. General Comments on the Supplier Data Categories

Comment: Most commenters agreed with our proposed 

determination that none of the supplier data categories 

meet the definition of emission data in 40 CFR 

2.301(a)(2)(i). Some commenters agreed with our proposal, 

but argued that all data that are not emission data should 

be kept confidential. 

Two commenters disagreed with EPA’s proposal that none 

of the supplier data categories meet the definition of 

emission data. These commenters stated that the fuels and 

other products reported by suppliers are eventually emitted 

and that the suppliers are thus the ultimate source of 

those emissions. They further argued that if “. . . EPA 
Page 120 of 178 

seeks to measure emissions from entities which use supplied 

fuels or gases, it may measure emissions from these 

“source[s] of emissions” by seeking data from suppliers.”9 

Response: EPA disagrees with those commenters who 

stated that the definition of emission data includes 

supplier data. As explained in the July 7, 2010 proposal, 

40 CFR 2.301(a)(2)(i) defines emission data to refer to 

emissions emitted or authorized to be emitted by a 

reporting facility. The data reported under the supplier 

subparts pertains to certain products that would result in 

GHG emissions if released, combusted, or oxidized by the 

downstream user of these products. EPA agrees that it may 

use the data reported under the supplier subparts to 

calculate the GHG emissions that would result from the use 

or combustion of the products supplied by these reporters. 

Nevertheless, the data reported under the supplier subparts 

does not include information on the actual emissions that 

occur at supplier facilities. Therefore, in this action, 

we finalize our determination that the supplier data 

elements do not meet the definition of emission data as 

that term is defined in 40 CFR 2.301(a)(2)(i). 

 

9 See letter to the U.S. EPA Administrator from the Clean Air Task 

Force, Natural Resources Defense Council, and Sierra Club, submitted 

August 26, 2010 (EPA-HQ-OAR-2009-0924-0018.1). 
Page 121 of 178 

We also disagree with those commenters who stated that 

all supplier data should be held as confidential because 

the supplier data does not meet the definition of emission 

data. Under the Freedom of Information Act and the CAA 

section 114(c), EPA is required to disclose information 

that does not qualify for confidential treatment. In the 

July 2010 CBI proposals, EPA proposed to determine, either 

by category or data element, that certain supplier data 

elements are CBI while others are non-CBI. The CBI 

proposals provided detailed rationales for EPA’s proposed 

determinations. Most commenters did not provide 

information that a specific determination or supporting 

rationale was flawed or otherwise inappropriate. For those 

that did raise supplier-specific issues, we addressed those 

comments in the relevant sections of this preamble (see 

Section II.C.3 through II.C.13 of this preamble for 

comments on the supplier data categories). 

3. GHGs Reported Category.

New Data Elements: EPA has added one new data element 

to this data category. This data element requires 

production facilities subject to subpart PP to report the 

total annual CO2 mass supplied in metric tons as calculated 

using Equation PP-3b (40 CFR 98.426(c)(2)(iii)). This new 

data element was added to subpart PP by the amendments 
Page 122 of 178 

published on December 17, 2010 (75 FR 79092) and was not 

included in the July 2010 CBI proposals. This data element 

is identical to other data elements already assigned to 

this data category (e.g., the annual mass of CO2 from all 

flow meters and CO2 streams that deliver CO2 to containers 

(40 CFR 98.426(c)(1)). Consistent with the determination 

made for other CO2 supply data elements reported under 

subpart PP, EPA has determined that this new data element 

is eligible for confidential treatment when reported by 

industrial CO2 production facilities, but not entitled to 

confidential treatment when reported by CO2 production 

wells. As explained below in the response to comments on 

this data category, although CO2 supply data is generally 

available for CO2 production wells, we have found no public 

sources of such data for industrial CO2 production 

facilities. Furthermore, some commenters stated that CO2

supply data for industrial CO2 production facilities would 

be likely to cause competitive harm if disclosed to the 

public because information documenting the amount of CO2

collected and transferred off site would provide 

competitors with sensitive information that may be used to 

determine a reporter’s market share and to gain insight 

into a reporter’s ability to meet increases in market 
Page 123 of 178 

demand. The final determinations for this data category 

are summarized in Table 4 of this preamble. 

Comment on Suppliers of CO2 (Subpart PP): Some 

commenters believed that the amount of CO2 collected at 

facilities for transfer off site (reported under subpart 

PP) should be held confidential for industrial production 

facilities such as ammonia manufacturing plants. These 

commenters stated that this information does not meet the 

definition of emission data; is not already publicly 

available; and can be combined with other information, such 

as emissions data reported for the associated combustion 

units, to estimate plant performance, which would cause 

competitive harm. We also received comments that the 

amount of CO2 imported or exported (also reported under 

subpart PP) does not meet the definition of emission data, 

is not already publicly, and should be protected as CBI as 

the release of this data could cause competitive harm. 

Response: We agree with commenters who recommended 

that the data elements describing the amount of CO2 supplied 

reported by industrial facilities (e.g., ammonia and lime 

manufacturing plants) and by importers and exporters under 

subpart PP are CBI. We agree that, for suppliers, the 

amount of CO2 collected by production facilities and 

transferred off site and the amount of CO2 imported or 
Page 124 of 178 

exported does not meet the definition of emission data in 

40 CFR 2.301(a)(2)(i), because the CO2 is not emitted at the 

reporter’s facility. We previously proposed that this data 

element would be non-CBI for all CO2 suppliers because we 

had identified sources of CO2 supply data. However, we have 

since determined that although facility-level CO2 supply 

data is generally available for CO2 production wells, such 

data for industrial CO2 production facilities is not 

publicly available. Likewise, the amount of CO2 supplied is 

generally not available for importers and exporters. We 

therefore agree with the commenters that the amount of CO2

collected by production facilities and transferred off site 

and the amount of CO2 imported/exported are not already 

available to the public. Based on the information provided 

by the commenters, we also agree that for industrial 

sources and for importers/exporters the information would 

be likely to cause competitive harm. For industrial 

sources, we agree with commenters who argued that the 

availability of information documenting the amount of CO2

collected and transferred off site would provide 

competitors with sensitive information that may be used to 

determine a reporter’s market share and to gain insight 

into a reporter’s ability to meet increases in market 

demand. For CO2 importers and exporters, the data would 
Page 125 of 178 

provide competitors with information on market share, which 

could be used to devise marketing strategies that undermine 

or weaken a competitor’s position. For the reasons stated 

above, we have determined the total CO2 supplied as reported 

under subpart PP would be CBI when reported by industrial 

CO2 production facilities (e.g., ammonia production 

facilities that collect CO2 for transfer off site),non-CBI 

when reported byCO2 production wells, and CBI when reported 

by importers and exporters.Comment on Suppliers of CoalBased Liquid Fuels (Subpart LL) and Suppliers of Petroleum 

Products (Subpart MM): Some commenters recommended that 

total facility-level CO2 and total importer level CO2 from 

subparts LL and MM should be eligible for confidential 

treatment. EPA had proposed that importer data for 

subparts LL and MM would not be eligible for confidential 

treatment because importer data is already publicly 

available from the U.S. Energy Information Administration 

(EIA). One commenter disagreed with EPA and stated that 

data reported by importers under subparts LL and MM is not 

publicly available through EIA. This commenter stated that 

EPA’s definitions of petroleum products and miscellaneous 

products differ from those used by the EIA and that these 

differences in reporting requirements would result in some 

supplier data being available to the public for the first 
Page 126 of 178 

time. Another commenter recommended that the amount of CO2

reported, quantities of product, and other information for 

imported products be held confidential. This commenter 

agreed that imports are routinely reported to EIA, but 

stated that the company that reports the data to the EIA 

may be a company that is under contract with the end-user 

(e.g., a broker relationship). As a result, the importer 

under part 98 and the importer under EIA could be different 

entities. The commenter argued that, in these 

circumstances, the amount and composition of material 

imported by the part98 reporter would not already be 

publicly available. 

Response: EPA has reviewed the comments on the 

proposed determinations for data elements reported by 

importers of coal-based liquids and petroleum products 

under subparts LL and MM (e.g., 40 CFR 98.385(b)(7) and 

(b)(8); and 40 CFR 98.396(b)(7) and (b)(8)). We previously 

proposed a non-CBI status for these data elements because 

we believed the data elements were available to the public 

through EIA. Although we recognized that there are some 

differences in the products reported under part 98 and EIA 

reporting program, we previously considered the differences 

to be minor and unlikely to reveal sensitive information. 

However, we agree with the commenter that EPA’s definitions 
Page 127 of 178 

of petroleum products and miscellaneous products differ 

from those used by the EIA and that in some instances these 

differences may reveal information about the 

characteristics of an imported product that is not 

available through EIA. We also agree that this information 

would cause competitive harm in some situations (e.g., 

where the importer uses the imported product as a raw 

material for their manufacturing process, the amount and 

characteristics of the raw material provide competitors 

with sensitive information on the manufacturing process, 

production costs, and efficiencies). However, we also note 

that the extent to which these part 98 data elements reveal 

competitively harmful information would depend on the type 

of product imported because some of the part 98 product 

definitions are identical to or sufficiently similar to 

those used by EIA (e.g., the part 98 definition of ethane 

is identical to that of EIA). We were not aware at the 

time of the proposal that some importers subject to part 98 

are not required to report their imports to the EIA and 

that the data is instead reported by brokers and published 

by EIA using the brokerage’s name rather than the name of 

the company who ultimately instigated and received the 

imported products. Therefore, EPA agrees with the 

commenters that, in some limited cases, different entities 
Page 128 of 178 

may be required to report import data under the subparts LL 

and MM of part 98 and under the EIA reporting program. In 

such instances, we agree that the EIA data does not reveal 

the identity of the company reporting import data under 

part 98 and therefore, we conclude that in these limited 

situations the data is not publicly available because it 

cannot be associated with part 98 reporter. Since the 

circumstances vary for each reporter with regard to whether 

the data reported under part 98 is available through EIA, 

EPA has decided not to make a confidentiality determination 

at this time that would apply to all importers of coalbased liquids and petroleum products. Therefore, EPA is 

not making finalizing confidentiality determinations in 

this action for data on the amount of CO2 supplied reported 

by importers of Coal-Based Liquids and Petroleum Products 

(subparts LL and MM). 

Comment on Facility-level CO2e: Most commenters agreed 

with EPA’s proposal that the total combined supplier-level 

CO2e for subparts LL through PP and the total amount of GHGs 

reported for the specific subpart should be publicly 

available, while CO2e reported for individual products under 

subparts LL through OO should be held confidential unless 

the data is already publicly available. However, some 

commenters were concerned that the combined supplier-level 
Page 129 of 178 

CO2e reported for subparts LL through PP could provide 

information on the amount of product produced where the 

reporters produces only one product. Similarly, some 

commenters recommended that the importer/exporter-level CO2e 

for subparts LL through PP should be held confidential for 

reporters who import and/or export only one product. These 

commenters stated that the actual pounds or tons of the 

specific product produced, imported, or exported could be 

easily discerned from the reported CO2e data. Several 

commenters stated that competitors could use these data to 

gain insight into marketing strengths and weaknesses and 

thereby gain a competitive advantage over reporting 

entities. Some commenters noted that to be consistent with 

the proposal to treat product-specific production 

throughput in the Production/Throughput Quantities and 

Composition Category as CBI, EPA should also determine that 

supplier-level CO2e data are CBI for facilities and 

importers/exporters with a single product. Some commenters 

recommended that the supplier-level CO2e data be held as 

confidential in cases in which a reporter produces or 

imports/exports only a few products or in which facilities 

produce large amounts of one product and smaller amounts of 

other products. 
Page 130 of 178 

Response: Although there are likely to be very few 

reporters that supply only one product, EPA agrees with 

commenters that the total combined supplier-level CO2e for 

subparts LL through PP and the total quantity of each GHG 

supplied qualify as CBI if the reporter supplies only one 

of the products listed in subparts LL through PP and if EPA 

determined that the production, import, export or supply 

rate for that product is CBI (see Table 4 of this preamble 

for the list of production/throughput data elements 

determined to be CBI and Section III.D.3 of the July 7, 

2010 CBI preamble for the rationale). In such instances, 

we agree with the commenters that the supplier level CO2e 

information may be used to calculate certain production and 

import/export data that we have determined to be CBI. 

Therefore, although we had proposed a non-CBI status for 

the following data elements, we have determined in this 

final action that they qualify as CBI under the following 

conditions for the reasons stated above: 

• The total combined supplier level CO2e (40 CFR 

98.3(c)(5)(i)) is confidential if the reporter 

produces, imports, exports or otherwise supplies just 

one product and if EPA has determined that the amount 

of that one product produced, imported, exported or 

otherwise supplied is CBI. 

• The quantity of each GHG (40 CFR 98.3(c)(5)(ii) is 

confidential if the reporter produces, imports, 

exports or otherwise supplies just one product and if 

EPA has determined that the amount of that one product 
Page 131 of 178 

produced, imported, exported or otherwise supplied is 

CBI. 

We disagree with commenters who recommended that 

facility-level and importer/exporter-level CO2e data should 

be held confidential for facilities that supply two or more 

products. We do not believe, nor did we receive any 

information indicating, that where a facility supplies 

multiple products, competitors would be able to estimate 

with any degree of certainty the quantities of a specific 

product produced, imported, or exported using the facilitylevel or importer/exporter-level CO2e data. Therefore, we 

concluded that our proposed non-CBI determination for 

suppliers who supply two or more products is appropriate 

and finalize that determination in this action (see Table 4 

of this preamble for the final confidentiality 

determinations for the Greenhouse Gases Reported). 

Table 4. Final CBI Determination for Greenhouse Gases 

Reported 

Source Category 

(Part 98 

Subpart) Data Elements 

Are these data 

CBI? 

General 

Provisions 

(Subpart A) 

Total facility-level CO2e 

from subparts LL-PPa

Nob

Suppliers of 

Coal-Based 

Liquid Fuels and 

Petroleum 

Products 

(subparts LL and 

MM):Producers 

Facility-level CO2 from each 

subpartc

Nob

Product-specific CO2 Yes 
Page 132 of 178 

Source Category 

(Part 98 

Subpart) Data Elements 

Are these data 

CBI? 

Suppliers of 

Coal-Based 

Liquids and 

Petroleum 

Products 

(subparts LL and 

MM): Exporters 

Exporter level CO2 from each 

subpartc

Nob

Product-specific CO2 Yes 

Suppliers of 

Natural Gas and 

NGLs (subpart 

NN): Local 

Distribution 

Companies (LDCs)

LDC-level CO2 from subpart 

NNc; 

Product-specific CO2 

No 

Suppliers of 

Natural Gas and 

NGLs (subpart 

NN): 

Fractionators 

Facility-level CO2 from 

subpart NNc. 

Nob

Product-specific CO2 Yes 

Suppliers of 

Industrial GHGs 

(subpart OO): 

Producers 

Facility-level GHG 

quantities, by gas, from 

subpart OOc; 

Product-specific GHG 

quantities 

Yes 

Suppliers of 

Industrial GHGs 

(subpart OO): 

Importers and 

Exporters 

Importer/exporter level 

GHG, by gas, from subpart 

OOc; 

Product-specific GHG 

quantities 

Yes 

Suppliers of CO2

(subpart PP): 

Production Wells

Facility-level CO2 for 

subpart PPc

No 

Suppliers of CO2 

(subpart PP): 

Industrial 

Production 

Facilities 

Facility-level CO2 for 

subpart PPc 

Yes 

Suppliers of CO2

(subpart PP): 

Importers and 

Exporters 

Importer/Exporter-level CO2

for subpart PPc

Yes 

a

 This data element, reported under 40 CFR part 98, subpart A, represents the aggregation 

of CO2e from all supplier source categories. For example, if a refinery supplies 

petrochemical products (40 CFR part 98, subpart MM) and is also a CO2 supplier (40 CFR 
Page 133 of 178 

part 98, subpart PP) the facility-level CO2e would represent the CO2e for both activities 

combined. 

b

 This data element is confidential if the reporter produces, imports, exports or 

otherwise supplies just one product and if EPA has determined that the amount of that one 

product produced, imported, exported or otherwise supplied is CBI. 

c

 This data element, reported under 40 CFR part 98, subpart A, represents an aggregation 

of CO2 (by source category) from multiple individual products the reporter supplies. 

4. Production/Throughput Quantities and Composition 

Category.

New Data Elements: EPA has added two new data 

elements to this data category: 

• The total annual CO2 mass through main flow meter(s) in 

metric tons (40 CFR 98.426(c)(2)(i)). 

• The total annual CO2 mass through subsequent flow 

meter(s) in metric tons (40 CFR 98.426(c)(2)(ii). 

These new data elements were added by the amendments 

published on December 17, 2010 (75 FR 79092) and were not 

included in the July 2010 CBI proposals. These data 

elements, which require reporters subject to subpart PP to 

provide CO2 throughput data for individual flow meters 

located at the plant, are the same type of data as other 

data elements already assigned to this data category (e.g., 

the annual mass for each mass flow meter reported by 

facilities using Equation PP-1 (40 CFR 98.426(a)(1)). 

Consistent with the determination made for other meterlevel CO2 data in this category, EPA has determined that 

these two new data elements are eligible for confidential 

treatment when reported by industrial CO2 production 

facilities, but not entitled to confidential treatment when 
Page 134 of 178 

reported by production wells. As discussed in Section 

II.C.3 of this preamble, although facility-level CO2 supply 

data is generally available for CO2 production wells, we 

have found no public sources of such data for industrial CO2

production facilities. Furthermore, some commenters stated 

that CO2 supply data for industrial production facilities 

would be likely to cause competitive harm if disclosed to 

the public because information documenting the amount of CO2

collected and transferred off site would provide 

competitors with sensitive information that may be used to 

determine a reporter’s market share and to gain insight 

into a reporter’s ability to meet increases in market 

demand. Since the facility-level CO2 data can be discerned 

from the meter-level CO2 data reported for the two new data 

elements, we have concluded that these data elements are 

CBI when reported by industrial suppliers of CO2 and non-CBI 

when reported by CO2 production wells. 

Comment: In the July 7, 2010 CBI proposal, EPA 

proposed that most data elements in the 

Production/Throughput and Composition Category would be 

entitled to confidential treatment, except for the 

following: (1) facility-level and importer/exporter-level 

data for suppliers of CO2, (2) data reported by natural gas 

LDCs, and (3) data reported by importers of petroleum 
Page 135 of 178 

products. Most commenters agreed with our proposed 

confidentiality determinations and with our rationale that 

facility-level data on the annual quantities and types of 

natural gas liquids, petroleum products, and industrial 

GHGs produced by facilities would cause competitive harm if 

disclosed to the public. 

A number of commenters agreed with the determination 

that the data reported under subpart OO should be held 

confidential. One commenter stated that disclosure of 

subpart OO data reported by exporters would often disclose 

data on production facilities because some production 

facilities export all or nearly all of their products. 

Others agreed that product composition data reported under 

subpart OO is sensitive information that would harm the 

competitive position of U.S. companies. However, other 

commenters disagreed, stating that the composition of 

products reported under 40 CFR part 98, subpart OO should 

be disclosed because of the high global warming potentials 

of these products. 

Some commenters believed that the mass of CO2 

transferred off site (reported under 40 CFR part 98, 

subpart PP) should be held confidential for industrial 

production facilities such as ammonia manufacturing plants 

and for CO2 importers and exporters. As discussed in 
Page 136 of 178 

Section II.C.3 of this preamble for related data elements, 

commenters stated that data on the amount of CO2 supplied is 

not already publicly available for industrial CO2 production 

facilities and CO2 importers and exporters and would likely 

cause competitive harm if disclosed to the public. 

Several commenters disagreed with our proposed 

determinations for data on the quantities and types of 

natural gas liquids and petroleum products imported into 

the U.S. (reported under subparts LL and MM) and 

recommended that this data be held confidential. As 

discussed in Section II.C.3 of this preamble for related 

data elements, some commenters argued that the amount and 

type of product imported is not publicly available from EIA 

for importers that use a broker, because the broker reports 

the import data to EIA under the broker’s name. They also 

stated that the part 98 product definitions differed from 

those of EIA and that these differences could reveal 

information not available through EIA. They also noted 

that disclosure of the amount and quantity of imported 

material could cause competitive harm to importers because 

it would reveal the type and rate of consumption of raw 

materials at their production facilities which could be 

used to discern sensitive process information (e.g., 

production efficiency). 
Page 137 of 178 

Response: The final determinations for this data 

category are summarized in Table 5 of this preamble. 

Except as described below, we have finalized the 

confidentiality determinations as proposed in the July 2010 

CBI proposals. 

EPA has determined that the meter-level CO2 data and 

the amount of CO2 supplied to each of the 13 types of endusers (reported under 40 CFR 98.426(f)), is CBI for 

industrial suppliers of CO2 and for CO2 importers and 

exporters. As discussed in Section II.C.3 of this 

preamble, we previously proposed that these data elements 

would be non-CBI for all CO2 producers because we had 

identified sources CO2 supply data. However, we have since 

determined that although CO2 supply data are generally 

available for CO2 production wells, such data for industrial 

CO2 production facilities and for CO2 importers and 

exporters is not publicly available. We therefore agree 

with the commenter that these data are not already 

available to the public. The meter-level CO2 data and the 

amount of CO2 supplied to each of the 13 types of end-users 

can be used to calculate the facility-level CO2 supply data 

for industrial sources. Information documenting the amount 

of CO2 collected and transferred off site, including the 

data elements at issue, provides competitors with sensitive 
Page 138 of 178 

information that may be used to determine a facility’s 

market share and to gain insight into a facility’s ability 

to meet increases in market demand. 

EPA is not making a final confidentiality 

determination for data elements that describe the amount 

and type of coal-based liquids and petroleum products 

reported by importers (subparts LL and MM). As discussed 

in Section II.C.3 of this preamble, EPA was not able to 

make a determination at this time that would apply to all 

importers of coal-based liquids and petroleum products 

because the determination would vary depending on importerspecific characteristics (e.g., whether the report to EIA, 

what type(s) of products they import). For the detailed 

discussion of the rationale for this decision, see EPA’s 

response in Section II.C.3 of this preamble related to 

Suppliers of Coal-Based Liquid Fuels and Suppliers of 

Petroleum Products (Subpart LL and Subpart MM). 

Table 5. Final Confidentiality Determination for Supplier 

Production/Throughput Quantities and Composition Data 

Source Category (Part 

98 Subpart) Data Elements 

Are these Data 

CBIa (Y/N)? 

Suppliers of Coal-Based 

Liquid Fuels and 

Petroleum Products 

(Subparts LL and MM): 

Producers 

Facility level, by 

product 

Yes 

Suppliers of Coal-Based 

Liquids and Petroleum 

Products (Subparts LL 

Exporter level, by 

product 

Yes 
Page 139 of 178 

Source Category (Part 

98 Subpart) Data Elements 

Are these Data 

CBIa (Y/N)? 

and MM): Exporters 

Suppliers of Natural 

Gas and NGLs (Subpart 

NN): LDCs 

LDC level No 

Suppliers of Natural 

Gas and NGLs (Subpart 

NN): Fractionators 

NGL Fractionator 

level 

Yes 

Suppliers of Industrial 

GHGs (Subpart OO): 

Producers 

Facility level, by 

fluorinated GHG 

Yes 

Facility level 

throughputb

information, by 

process 

Yes 

Suppliers of Industrial 

GHGs (Subpart OO): 

Importers and Exporters

Importer and 

Exporter level, by 

fluorinated GHG 

Yes 

Suppliers of CO2

(Subpart PP): 

Production Wells 

Facility-level 

total CO2 production

No 

CO2 mass or volume 

measured by flow 

meter 

No 

Facility level 

annually aggregated 

production 

information, by end 

use application 

No 

Suppliers of CO2

(Subpart PP): 

Industrial Production 

Facilities 

Facility-level 

total CO2 production

Yes 

CO2 mass or volume 

measured by flow 

meter 

Yes 

Facility level 

annually aggregated 

production 

information, by end 

use application 

Yes 

Suppliers of CO2(PP): 

Importers and Exporters

Importer and 

Exporter level 

total CO2

imported/exported 

Yes 
Page 140 of 178 

Source Category (Part 

98 Subpart) Data Elements 

Are these Data 

CBIa (Y/N)? 

CO2 mass or volume 

measured by flow 

meter, scales and 

weigh bills 

Yes 

Importer and 

Exporter level 

annually aggregated 

production 

information, by end 

use application 

Yes 

a Production/throughput data are reported by product. 

b Throughput information includes the total mass of the reactants, byproducts, and wastes permanently removed from each fluorinated GHG or 

nitrous oxide production process. 

5. Identification Information Category.

Comment: Some commenters agreed with EPA’s proposed 

determination that the data in this category do not qualify 

for confidential treatment. However, a few commenters 

disagreed with our proposal. Commenters were concerned 

that disclosure of certain data elements in this category, 

particularly the company name and address, would enable 

competitors to determine the quantity and type of materials 

imported/exported by a particular company. Another 

commenter stated that the competitive position of 

businesses would be harmed if the name and address of U.S. 

parent companies and their percentage of ownership interest 

is made publically available. These commenters argued that 

this information could be used together with other data to 

determine market share and other competitive information. 
Page 141 of 178 

Response: We disagree with those commenters who 

believe the disclosure of the data in this category would 

likely cause competitive harm to suppliers. We are not 

aware of any situations, nor did the commenters provide any 

examples, in which the name, address, and U.S. parent 

company of an importer or exporter has been or could be 

linked with other available data to disclose sensitive 

business information. Further, reporters eligible to hold 

confidential the quantities and compositions of imported 

materials (such as those reporters importing fluorinated 

GHGs under 40 CFR part 98, subpart OO) may submit manifest 

confidentiality requests to the U.S. Customs and Border 

Protection (CBP) to protect as confidential its name and 

address on customs forms. Therefore, competitors would not 

be able to link customs data on the quantity and type of 

material imported with the name and address of the Part 98 

reporter. For the reasons stated above, we conclude that 

our proposed non-CBI determination for this data category 

is appropriate. 

6. Unit/Process Operating Characteristics Category.

New Data Elements: EPA has added one new data element 

to this data category for suppliers subject to subpart PP. 

This data element requires production facilities to report 

the location of each flow meter in relation to the point of 
Page 142 of 178 

segregation (reported under 40 CFR 98.426(c)(2)(iv)). The 

data element was added by the amendments published on 

December 17, 2010 (75 FR 79092) and was not included in the 

July 2010 CBI proposals. This data element is exactly the 

same type of location information as required by other data 

elements already assigned to this data category (e.g., the 

location of each volumetric flow meter in the process chain 

in relation to the points of CO2 stream capture, 

dehydration, compression, and other processing reported 

under 40 CFR 98.426(b)(7)). In the CBI proposal, we 

explained that disclosure of such location information is 

not likely to cause competitive harm to the reporting 

facilities because it does not provide descriptions or 

diagrams on the design or operation of a facility’s 

production process or reveal any other potentially 

sensitive information about any facility. Therefore, we 

have determined in this final action that the data elements 

in the Unit/Process Operating Characteristics category 

relative to location information, including this new data 

element, are not CBI. 

Comment: For this data category, EPA proposed that 

only one data element (the estimated percent transformation 

efficiency reported under 40 CFR part 98, subpart OO for 

fluorinated production process) would be eligible for 
Page 143 of 178 

confidential treatment. Many commenters agreed that most 

data in this category do not qualify for confidential 

treatment. Several commenters also supported EPA’s 

proposed determination that the estimated percent 

transformation efficiency of each production process for 

the fluorinated GHG produced under 40 CFR part 98, Subpart 

OO is CBI. 

Other commenters disagreed with our proposal and 

recommended that all unit/process operating characteristics 

should be considered CBI. Most of these commenters 

provided broad statements that operating data provides 

competitors with sensitive business information, but did 

not identify which specific data elements or explain how 

their disclosure would cause competitive harm to reporters. 

However, a few commenters provided more detailed rationales 

regarding specific data elements. One commenter believed 

the subpart OO data element concerning the date on which a 

change to a fluorinated GHG product occurs should be kept 

confidential because the dates would indicate to 

competitors that the reporter was making changes to their 

product. Another commenter believed the dates on which 

fluorinated GHGs are imported and/or exported and the port 

of entry and port of export should be entitled to 

confidential treatment because this information could be 
Page 144 of 178 

used in conjunction with customs records to identify the 

amount of material imported/exported by the reporter. This 

commenter added that to protect confidential and 

competitively sensitive information, importers and 

exporters can submit manifest confidentiality requests to 

U.S. Customs and Border Protection (CBP). According to the 

commenter, CBP allows importers and exporters to claim 

their names and addresses as confidential but not 

information on the material imported/exported, the port, or 

the date. This commenter argued that disclosure of such 

import/export data would place businesses required to 

report under Part 98 at a significant competitive risk and 

argued that information on the date and port of 

import/export could be used by competitors (both domestic 

and international) to discern import and export practices, 

and potentially shipment data. 

One commenter stated that certain information 

submitted as part of BAMM extension requests was sensitive 

information requiring confidential treatment. This 

commenter specifically identified the following data 

elements from BAMM extension requests as confidential: the 

reason for the extension request (40 CFR 98.3(d)(2)(ii)(C)) 

and the planned installation date of monitoring equipment 

(40 CFR 98.3(d)(2)(ii)(F)). This commenter stated that 
Page 145 of 178 

this information is not available from other public sources 

and, if disclosed, would cause competitive harm by enabling 

competitors to determine a company’s ability to capitalize 

on specific market opportunities and allowing competitors 

to target markets based on weaknesses and vulnerabilities. 

They further noted that information on future shutdowns 

would allow competitors to increase production during a 

reporter’s shutdown and would likely cause serious harm to 

the reporter’s competitive position. 

Response: Except as described below, we have 

finalized the proposed confidentiality determinations for 

the data elements in this category. In response to 

comments received, we have determined that the following 

data elements in this data category are CBI: 

• Dates of import/export (40 CFR part 98, subpart OO). 

• Ports of import/export (40 CFR part 98, subpart OO). 

• The reason for submitting a BAMM extension request (40 

CFR part 98, subpart A). 

• The reason why equipment was not or could not be 

obtained or installed during a planned shutdown 

between October 30, 2009 and April 1, 2010 (as 

reported in a BAMM extension request (40 CFR part 98, 

subpart A). 

• Planned installation date for monitoring equipment as 

reported in a BAMM extension request (40 CFR part 98, 

subpart A). 

At the time of the July 10 CBI proposals, we were not 

aware of any potential competitive harm that would likely 
Page 146 of 178 

result from the disclosure of the dates on which 

fluorinated GHGs are imported and/or exported and the port 

of entry and export (reported under 40 CFR part 98, subpart 

OO). Since then, we have learned that release of these 

data elements to the public could allow competitors to link 

customs records on quantities and product composition with 

the import and export data reported under part 98, thus 

allowing competitors to determine market share and devise 

marketing strategies to undermine or weaken a competitor’s 

position. Because disclosure of these data elements is 

likely to cause the substantial harm described above to 

suppliers reporting these data under part 98, we have 

determined in this final action that these data elements 

qualify as CBI. 

EPA agrees with commenters who recommended that 

certain data elements submitted as part of BAMM extension 

requests are eligible for confidential treatment. At the 

time of proposal, we believed the reason for requesting a 

BAMM extension (reported under 40 CFR 98.3(d)(2)(ii)(C)) 

and the reason why equipment was not (or could not be) 

installed (reported under 40 CFR 98.3(d)(2)(ii)(E)) would 

be generic information that would not reveal any sensitive 

operating information. However, since proposal EPA has 

reviewed a number of BAMM extension requests and determined 
Page 147 of 178 

that they contain more detailed information, such as 

process diagrams and operational information, than we had 

previously anticipated. We also note that many facilities 

have claimed these data as CBI because they provide insight 

into facility-specific operating conditions or process 

design that are not available from other sources and would 

harm their competitive position if released. 

We also agree with those commenters that stated that 

the planned installation date and the date of anticipated 

startup (reported under 40 CFR 98.3(d)(2)(ii)(F)) provides 

competitive information regarding future process shutdowns. 

Based on new information received in comments, we have 

concluded that these data elements could provide 

information about the operation of a facility that can be 

used by competitors to anticipate and potentially benefit 

from future decreases in product supply. For example, a 

competitor could increase its own market share by 

increasing production or increase its profits by increasing 

prices during these periods. Based on this new 

information, EPA has determined that these data elements 

qualify as CBI. 

Although some commenters claimed that the data element 

concerning the date on which a change to a fluorinated GHG 

product occurs (40 CFR 98.416(f)) should be confidential, 
Page 148 of 178 

they did not provide rationale or supporting information 

that enable us to assess their claim. Because we are not 

aware of any situations under which public disclosure of 

this data element is likely to cause substantial harm to 

suppliers reporting these data elements, our position 

regarding this data element remains unchanged in this final 

action. 

7. Calculation, Test, and Calibration Methods Category

Comment: We received several comments agreeing with 

EPA that disclosing the calculation, test, and calibration 

methods would be unlikely to reveal proprietary business 

information. No commenters disagreed with our proposed 

determination that the data elements in this category are 

not CBI. 

Response: We appreciate the commenters’ support of 

our proposed non-CBI determination for this data category. 

In light of these comments, we conclude that our proposed 

non-CBI determination for this data category (as described 

in 75 FR 39126, July 7, 2010) is appropriate and finalize 

that determination in this action. 

8. Supplier Data Elements for Periods of Missing Data That 

Are Not Related to Production/Throughput.

Comment: We received comments supporting EPA’s 

proposed determination that the data in this data category 
Page 149 of 178 

are not CBI. No commenters opposed our proposed 

determination that the data in this category are not CBI. 

Response: We appreciate the commenters’ support of our 

proposed determination for this data category. In light of 

these comments, we conclude that our proposed non-CBI 

determination for this data category (as described in 75 FR 

39128, July 7, 2010) is appropriate and finalize that 

determination in this action. 

9. Emission Factor Category.

Comment: Several commenters agreed with EPA’s 

proposed determination that the data in this data category 

qualify for confidential treatment. These commenters 

agreed with EPA’s proposed determination that disclosure of 

this data would substantially harm the competitive position 

of suppliers and therefore it should be kept confidential. 

Other commenters disagreed with EPA’s proposed CBI 

determination, arguing that most of the Part 98 supplier 

data should be considered non-CBI. However, these 

commenters did not provide any specific rationale or 

information explaining why any data element in this data 

category should be considered non-CBI, but instead provided 

only general statements that making data available to the 

public was consistent with the CAA and that it was the 
Page 150 of 178 

purpose of the GHGRP to make GHG emissions data available 

to the public. 

Response: Although some commenters disagreed with 

EPA’s proposed determination that the data elements in this 

data category qualify for confidential treatment, they did 

not provide any rationale or information for us to evaluate 

whether the proposed CBI determination may not be 

appropriate for any data elements in this data category. 

Specifically, the commenters did not provide any 

information to support why data in this particular category 

would meet the definition of emission data. Neither did 

the commenter explain why any data element in this category 

does not qualify as CBI. For instance, the commenter did 

not claim that any data element in this category is already 

publicly available or disagree with EPA’s assessment that 

disclosure of these data elements would likely cause 

competitive harm. Further, the commenters who supported 

our proposed determination explained that the information 

is held confidential by companies and that disclosure would 

cause substantial harm to the competitive position. The 

commenters who supported our proposed determination agreed 

with EPA’s rationale described in Section II.D.8 of the 

July 2010 CBI proposal that emission factors can be used to 

back-calculate the carbon share of the supplier’s products 
Page 151 of 178 

and raw materials. In light of the above, we conclude that 

our proposed determination for this data category is 

appropriate and finalize the determination in this action. 

10. Amount and Composition of Materials Received Category

New Data Elements: 

EPA has added the following six new data elements to 

this data category: 

• EIA crude stream code (40 CFR 98.396(a)(20)(v)). 

• Crude stream name (40 CFR 98.396(a)(20)(v)). 

• Generic name for crude stream (40 CFR 

98.396(a)(20)(vi)). 

• EIA two-letter country or state production area code 

for batch (40 CFR 98.396(a)(20)(vi)). 

• Volume of crude oil in barrels injected into a crude 

oil supply or reservoir (40 CFR 98.396(a)(22)). 

• Indication of whether the material is a blended noncrude feedstock or blended product (40 CFR 

98.396(d)(1)(iii). 

The data elements were added by the amendments 

published on October 28, 2010 (75 FR 66434) and were not 

included in the July 2010 CBI proposals. The data elements 

require the reporting of information about the composition 

and type of raw materials used by facilities that produce 

products listed in subpart MM. They are the same type of 

data as other data elements already included in this data 

category in the CBI proposals. For example, 40 CFR 

98.396(a)(20)(vi) is the same type of data as 40 CFR 
Page 152 of 178 

98.396(a)(20)(iv), which requires the country of origin the 

crude oil batch to be reported, and 40 CFR 98.396(a)(22) is 

the same type of data as 40 CFR 98.406(a)(2), which 

requires the quantity of ethane product received by natural 

gas fractionators. In the July 2010 CBI proposals, we 

explained that disclosure of the data elements in this 

category would likely cause substantial competitive harm to 

the reporting facilities. For example, we explained how 

information about a reporter’s raw material source could be 

used to discern design or operating limitations (e.g., show 

that a facility only processes certain types of crude oil) 

or could be used to develop competitive strategies to 

increase the cost of certain types of raw materials. In 

other cases, the amount of raw material consumed can be 

used in combination with production data to infer the 

operating efficiency (e.g., amount of product produced per 

unit of raw material consumed), which would allow 

competitors to infer production costs and pricing 

structures (see 75 FR 39127, July 7, 2010). Because the 

CBI proposal included data elements that are the same in 

type and characteristic as the six new data elements, we 

conclude that the proposal adequately addresses these six 

data elements and that a separate CBI proposal for these 

data elements is not necessary. For the reasons set forth 
Page 153 of 178 

in this section and in section II.C.9 of the July 7, 2010 

CBI proposal, we have determined in this final action that 

the data elements in this data category qualify as CBI. 

This determination applies to all the data elements in this 

category, including the six new data elements listed above. 

Comment: Most commenters agreed with EPA’s proposed 

determination that the amount and composition of materials 

received by suppliers qualify for confidential treatment. 

These commenters agreed that, if released, the amount and 

composition of materials received by suppliers would likely 

cause substantial harm to the competitive positions of 

businesses reporting these data because it would reveal 

sensitive information about the manufacturing process or 

the composition of the product. Although most commenters 

supported EPA’s proposed CBI determination for this 

category, some commenters disagreed. These commenters 

argued that all or most Part 98 data elements should be 

made available to the public. These commenters did not 

provide any information explaining why any specific data 

element in this data category should be considered emission 

or otherwise non-CBI, but instead submitted general 

statements that disclosure of these data would be 

consistent with the CAA and the GHGRP. 
Page 154 of 178 

Response: Although some commenters disagreed with 

EPA’s proposed determination that the data elements in this 

data category qualify for confidential treatment, they did 

not provide any rationale or information for us to evaluate 

whether the proposed CBI determination may not be 

appropriate for any data elements in this data category. 

Specifically, the commenters did not provide any 

information to support why data in this particular category 

would meet the definition of emission data. Neither did 

the commenter explain why any data element in this category 

does not qualify as CBI. For instance, the commenters did 

not claim that any data element in this category is already 

publicly available, nor did they disagree with EPA’s 

assessment that disclosure of these data elements would 

likely cause competitive harm. The commenters who 

supported our proposed determination agreed with EPA’s 

rationale described in Section II.D.9 of the July 2010 CBI 

proposal that disclosure of data elements in this category 

is likely to cause substantial harm to reporters. In light 

of the above, we conclude that our proposed determination 

for this data category is appropriate and are finalizing 

the determination in this action. 

11. Supplier Data Elements for Periods of Missing Data 

That Are Related to Production/Throughput.
Page 155 of 178 

Comment: Several commenters agreed with EPA’s 

proposed determination that the data in this data category 

qualify for confidential treatment. These commenters 

expressed agreement with EPA’s proposed determination that 

disclosure of this data would substantially harm the 

competitive position of suppliers and therefore should be 

kept confidential. 

Although most commenters supported EPA’s proposed CBI 

determination for this category, some commenters disagreed. 

These commenters argued that all or most Part 98 data 

elements should be made available to the public. These 

commenters did not provide any rationale explaining why any 

specific data element in this data category should be 

considered emission data or otherwise non-CBI, but instead 

submitted general statements that disclosure of these data 

would be consistent with the CAA and the GHGRP. 

Response: Although some commenters disagreed with 

EPA’s proposed determination that the data elements in this 

data category qualify for confidential treatment, they did 

not provide any rationale or information for us to evaluate 

whether our proposed determination is not appropriate for 

any data elements in this data category. Specifically, the 

commenters did not provide any information to support why 

data in this particular category would meet the definition 
Page 156 of 178 

of emission data. Neither did the commenter explain why 

any data element in this category does not qualify as CBI. 

For instance, the commenters did not claim that any data 

element in this category is already publicly available, nor 

did they disagree with EPA’s assessment that disclosure of 

these data elements would likely cause competitive harm. 

Further, the commenters who supported our proposed 

determination agreed with EPA’s rationale described in 

Section II.D.10 of the July 2010 CBI proposal that the data 

elements in this category are themselves production data 

and materials received data for the missing data period and 

their disclosure could divulge sensitive details about 

operational capabilities, marketing strategies, market 

share, and product chemistries. We therefore conclude that 

our proposed determination for this data category is 

appropriate and finalize the determination in this action. 

12. Supplier Customer and Vendor Information Category.

Comment: Several commenters agreed with EPA’s 

proposed determination that the data elements in this 

category qualify for confidential treatment. Some stated 

that the data was not publicly available and that they take 

steps to ensure the information is maintained as 

confidential. Several agreed with EPA’s proposed 

determination that disclosure of these data elements would 
Page 157 of 178 

substantially harm the competitive position of suppliers. 

One stated that customers and vendors often require such 

data to be kept confidential and that in some cases this 

requirement is included in legal contracts, such as 

agreements for purchase or supply. Others stated that the 

identity of a vendor is proprietary information since it 

would allow competitors to determine customer base and 

identify large customers. 

Although most commenters supported EPA’s proposed CBI 

determination for this category, some commenters disagreed. 

These commenters argued that all or most of the Part 98 

data should be considered non-CBI. These commenters did 

not provide any specific rationale regarding the data 

elements in this category, but instead submitted general 

statements that disclosure of these data would be 

consistent with the CAA and the GHGRP. 

Response: Although a few commenters disagree with 

EPA’s proposed determination that the data elements in this 

category are eligible for confidential treatment, they did 

not provided any rationale or information for us to 

evaluate why any data element in this category should be 

considered non-CBI. Specifically, they did not provide any 

information to support why data in this particular category 

would meet the definition of emission data. The commenters 
Page 158 of 178 

did not claim that any data element in this category is 

already publicly available, nor did they disagree with 

EPA’s assessment that disclosure of these data elements 

would likely cause competitive harm. Furthermore, 

commenters who supported our proposed determination 

explained that the information is held confidential by 

companies and that disclosure would cause substantial harm 

to the competitive position of their company by revealing 

information about customer base and in some cases the 

identity of individual customers, which would enable 

competitors to develop marketing strategies designed to 

steal these customers. We therefore conclude that our 

proposed determination for this data category is 

appropriate and finalize the determination in this action. 

13. Process-Specific and Vendor Data submitted in BAMM

Extension Requests Category.

Comment: Only a few commenters submitted comments on 

this data category. The majority of those providing 

comments agreed with EPA’s proposed determination that 

disclosure of the data in this category would substantially 

harm the competitive position of reporters and that the 

data in this category therefore qualify for confidential 

treatment under 40 CFR 2.208. Some of these commenters 

also confirmed that they take measures to keep the data 
Page 159 of 178 

secret and that the information is not available from other 

sources. 

Although some commenters supported EPA’s proposed CBI 

determination for this category, other commenters 

disagreed. These commenters argued that all or most of the 

Part 98 data should be considered non-CBI. These 

commenters did not provide any specific rationale regarding 

the data elements in this category, but instead submitted 

general statements that disclosure of these data would be 

consistent with the CAA and the GHGRP. 

Response: While some commenters disagreed with EPA’s 

proposed determination that this data is eligible for 

confidential treatment, they did not provide specific 

rationale or information for us to evaluate whether our 

proposed determination may not be appropriate for any data 

element in this category. Specifically, they did not 

provide any information to support why data in this 

particular category would meet the definition of emission 

data. Neither did the commenter explain why any data 

element in this category does not qualify as CBI. For 

instance, they did not claim that any data element in this 

category is already publicly available, nor did they 

disagree with EPA’s assessment that disclosure of these 

data elements would likely cause competitive harm. 
Page 160 of 178 

Furthermore, the commenters who supported our proposed 

determination explained that the information is held 

confidential by companies and confirmed that disclosure of 

the data elements in this category could divulge sensitive 

information about specific processes that would likely 

cause substantial harm to reporters. We therefore conclude 

that our proposed determination for this data category is 

appropriate and finalize the determination in this action. 

D. Amendment to 40 CFR Part 2 Addressing Treatment of Part 

98 Data Elements

The July 7, 2010 proposal included proposed amendments 

to 40 CFR 2.301 (Special Rules Governing Certain 

Information Obtained under the Clean Air Act) that would 

establish procedures for EPA’s handling of data collected 

under 40 CFR part 98 in accordance with EPA’s final 

confidentiality determinations for the data. In this 

action, EPA finalizes the proposed amendment without 

change. 

The final amendment authorizes EPA to release Part 98 

data elements determined to be “emission data” or not 

otherwise entitled to confidential treatment without 

further procedural requirements. The final amendment also 

sets forth procedures for the treatment of information in 

Part 98 determined to be CBI. These procedures are similar 
Page 161 of 178 

to and consistent with the existing 40 CFR part 2 

procedures for handling information determined to be CBI. 

1. Summary of Comments and Responses on the Amendments to 

40 CFR Part 2.

Comment: One commenter recommended EPA revise 40 CFR 

2.301(d) to include provisions either establishing a time 

limit on the duration of CBI determination or establishing 

a process by which data elements designated as CBI could be 

reclassified. Another commenter argued that if the Office 

of General Counsel makes a determination that information 

is no longer CBI, companies should be afforded the same 

opportunity to comment as provided under 40 CFR 2.204(e) 

and the opportunity for judicial challenge of the Agency’s 

final determination, as provided under 40 CFR 2.205(f). 

Response: As discussed in Section II.A.9 of this 

preamble (Time Limits on Confidentiality Determinations), 

the commenters did not provide supporting information 

explaining how data determined to be CBI in this action 

will become less sensitive over any specific period of time 

such that EPA should limit its CBI determination for such 

data to that time period. We note that other CBI 

determinations made by EPA are generally not time limited. 

Further, the final amendment to 40 CFR 2.301 provides 

procedures for EPA to modify a prior confidentiality 
Page 162 of 178 

determination (see 40 CFR 2.301(d)(4)) should certain Part 

98 data be no longer entitled to confidential treatment 

because of a change in the applicable law or newly 

discovered or changed facts. This provision reflects the 

requirements in CBI regulations at 40 CFR 2.205(h) for 

modifying prior determinations for other information. For 

the reasons stated above, we do not believe that a time 

limit on the duration of CBI determination is justified or 

necessary. 

Further, consistent with 40 CFR 2.204(e), we provided 

reporters notice and an opportunity to comment by making 

confidentiality determinations for Part 98 data through 

notice and comment rulemaking. In this action stakeholders 

were given the opportunity to submit CBI claims and 

supporting documentation during the 60-day comment period 

for the proposed CBI determinations, rather than submitting 

their CBI claims and substantiations at the time they 

report the data. However, we received no specific comment 

or information, nor do we have any reason to believe, that 

reporting facilities would have had any new or different 

information to substantiate their claims at the time they 

submit the data elements as opposed to that available 

during the public comment period for the CBI proposals. 

Further, during the comment period, the reporting 
Page 163 of 178 

facilities were able to consider the Agency’s proposed 

confidentiality determinations in preparing their CBI 

claims and supporting documentations; businesses do not 

generally have such insight into EPA’s positions when 

substantiating CBI claims under the existing CBI 

regulations. Lastly, as provided in the Judicial Review 

section of this notice, this final action is subject to 

judicial review under CAA section 307(b). 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 

1993), the amendments to 40 CFR part 2 are a "significant 

regulatory action” because they raise novel legal or policy 

issues. Accordingly, EPA submitted this action to the 

Office of Management and Budget (OMB) for review under 

Executive Order 12866 and any changes made in response to 

OMB recommendations have been documented in the docket for 

this action. 

B. Paperwork Reduction Act

The amendments to 40 CFR part 2 do not impose any new 

information collection burden. The amendments are 

administrative in nature and do not increase the 

recordkeeping and reporting burden associated with Part 98. 

However, the OMB has previously approved the information 
Page 164 of 178 

collection requirements contained in the Part 98 

regulations promulgated on October 30, 2009 under the 

provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 

et seq. and has assigned OMB control number 2060–0629. EPA 

has also submitted the Information Collection Request 

requirements for four additional Part 98 subparts 

promulgated on July 12, 2010 to OMB for approval (see 75 FR 

39756). The OMB control numbers for EPA’s regulations in 

40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act (RFA)

The RFA generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to 

notice and comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless 

the agency certifies that the rule will not have a 

significant economic impact on a substantial number of 

small entities. Small entities include small businesses, 

small organizations, and small governmental jurisdictions. 

For purposes of assessing the impacts of the 

amendments on small entities, small entity is defined as: 

(1) A small business as defined by the Small Business 

Administration’s regulations at 13 CFR 121.201; (2) a small 

governmental jurisdiction that is a government of a city, 

county, town, school district or special district with a 
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population of less than 50,000; and (3) a small 

organization that is any not-for-profit enterprise which is 

independently owned and operated and is not dominant in its 

field. This definition of small entity is consistent with 

the definition of small entity used for Part 98. 

After considering the economic impacts of today’s 

amendments to 40 CFR part 2 on small entities, I certify 

that this action will not have a significant economic 

impact on a substantial number of small entities. The 

small entities directly regulated by Part 98 and affected 

by the amendments to 40 CFR part 2 include small businesses 

across all sectors of the economy encompassed by Part 98, 

small governmental jurisdictions, and small non-profits. 

An analysis of impacts on small entities was conducted at 

promulgation of Part 98 and the results are presented in 

the Section VIII.C of the preamble to the final Part 98 (74 

FR 56369, October 30, 2009). Subsequent small entity 

analyses for additional Part 98 subparts were conducted and 

the results presented in: Section IV.D of the preamble to 

“Mandatory Reporting of Greenhouse Gases From Magnesium 

Production, Underground Coal Mines, Industrial Wastewater 

Treatment, and Industrial Waste (75 FR 39736, July 12, 

2010); Section IV.D of the preamble to “Mandatory Reporting 

of Greenhouse Gases: Additional Sources of Fluorinated 
Page 166 of 178 

GHGs” (75 FR 74744, December 1, 2010); Section III.D of the 

preamble to “Mandatory Reporting of Greenhouse Gases: 

Injection and Geologic Sequestration of Carbon Dioxide” (75 

FR 75060, December 1, 2010); Section III.D of the preamble 

to “Mandatory Reporting of Greenhouse Gases: Petroleum and 

Natural Gas Systems” (75 FR 74458, November 30, 2010). 

These analyses found that there was not a significant 

impact on a substantial number of small entities. The 

amendments to 40 CFR part 2 are administrative in nature 

and do not increase the costs for small entities to comply 

with Part 98. Therefore, the amendments do not have an 

impact on small entities. For discussion of EPA’s 

outreach/consultation efforts with small entities on Part 

98, see Section VIII of the preamble to the final Part 98 

(74 FR 56369, October 30, 2009). 

D. Unfunded Mandates Reform Act (UMRA)

Title II of the Unfunded Mandates Reform Act of 1995 

(UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, 

unless otherwise prohibited by law, to assess the effects 

of their regulatory actions on State, local, and Tribal 

governments and the private sector. Federal agencies must 

also develop a plan to provide notice to small governments 

that might be significantly or uniquely affected by any 

regulatory requirements. The plan must enable officials of 
Page 167 of 178 

affected small governments to have meaningful and timely 

input in the development of EPA regulatory proposals with 

significant Federal intergovernmental mandates and must 

inform, educate, and advise small governments on compliance 

with the regulatory requirements. 

The amendments to 40 CFR part 2 do not contain a 

Federal mandate that may result in expenditures of $100 

million or more for State, local, or Tribal governments, in 

the aggregate, or the private sector in any one year. The 

amendments are administrative in nature and do not increase 

the costs of compliance for facilities to comply with Part 

98. Thus, the amendments to 40 CFR part 2 are not subject 

to the requirements of sections 202 or 205 of the UMRA. 

In developing Part 98, EPA consulted with small 

governments pursuant to a plan established under section 

203 of UMRA to address impacts of regulatory requirements 

in the rule that might significantly or uniquely affect 

small governments. For a summary of EPA’s consultations 

with State and/or local officials or other representatives 

of State and/or local governments in developing Part 98, 

see Section VIII of the preamble to the final Part 98 (74 

FR 56370). 

E. Executive Order 131132: Federalism
Page 168 of 178 

The amendments to 40 CFR part 2 do not have federalism 

implications. They will not have substantial direct 

effects on the States, on the relationship between the 

national government and the States, or on the distribution 

of power and responsibilities among the various levels of 

government, as specified in Executive Order 13132. 

However, for a more detailed discussion about how Part 98 

relates to existing State programs, please see Section II 

of the preamble to the final Part 98 rule (74 FR 56266). 

The amendments to 40 CFR part 2 are administrative in 

nature and apply to data reported under Part 98 by 

facilities that directly emit GHGs or supply fuel or 

chemicals that may emit GHGs when used. Part 98 does not 

apply to governmental entities unless the government entity 

owns a facility that directly emit GHGs above threshold 

levels such as large stationary combustion sources or 

landfills, so relatively few government facilities would be 

affected. The amendments to 40 CFR part 2 also do not 

limit the power of States or local governments to collect 

GHG data or regulate GHG emissions. Thus, Executive Order 

13132 does not apply to this action. 

In the spirit of Executive Order 13132, and consistent 

with EPA policy to promote communications between EPA and 

State and local governments, EPA specifically solicited 
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comments on the proposed action from State and local 

officials. For a discussion of how Part 98 relates to 

existing State programs and a summary of EPA’s 

consultations with State and local government 

representatives during the development of Part 98, see

Sections II and VIII of the preamble for the final Part 98 

(74 FR 56260, October 30, 2009), respectively. In 

addition, after the July 7, 2010 confidentiality proposal, 

EPA held meetings with associations including State and 

local agencies, and considered public comments submitted by 

such agencies in developing the final confidentiality 

determinations and 40 CFR part 2 amendments. 

F. Executive Order 13175: Consultation and Coordination 

with Indian Tribal Governments

This action is not expected to have Tribal 

implications, as specified in Executive Order 13175 (65 FR 

67249, November 9, 2000), because this action is 

administrative in nature and does not impose any new 

requirements on Tribes. Thus, Executive Order 13175 does 

not apply to this action. However, EPA consulted with 

Tribal officials in developing Part 98. For a summary of 

EPA’s consultations with Tribal governments and 

representatives in developing Part 98, see Section VIII.F 
Page 170 of 178 

of the preamble to the final Part 98 (74 FR 56371, October 

30, 2009). 

G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks

EPA interprets Executive Order 13045 (62 FR 19885, 

April 23, 1997) as applying only to those regulatory 

actions that concern health or safety risks, such that the 

analysis required under section 5–501 of the Executive 

Order has the potential to influence the regulation. This 

action is not subject to Executive Order 13045 because it 

does not establish an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions that Significantly 

Affect Energy Supply, Distribution, or Use

This action is not a “significant energy action” as 

defined in Executive Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have a significant 

adverse effect on the supply, distribution, or use of 

energy. The amendments to 40 CFR part 2 are administrative 

in nature and therefore do not have any adverse impacts on 

energy supply, distribution, or use. 

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 
Page 171 of 178 

12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 

consensus standards in its regulatory activities unless to 

do so would be inconsistent with applicable law or 

otherwise impractical. Voluntary consensus standards are 

technical standards (e.g., materials specifications, test 

methods, sampling procedures, and business practices) that 

are developed or adopted by voluntary consensus standards 

bodies. NTTAA directs EPA to provide Congress, through 

OMB, explanations when the Agency decides not to use 

available and applicable voluntary consensus standards. 

The amendments do not involve technical standards. 

Therefore, EPA did not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Populations

Executive Order 12898 (59 FR 7629, February 16, 1994)

establishes Federal executive policy on environmental 

justice. Its main provision directs Federal agencies, to 

the greatest extent practicable and permitted by law, to 

make environmental justice part of their mission by 

identifying and addressing, as appropriate, 

disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 
Page 172 of 178 

activities on minority populations and low-income 

populations in the United States. 

EPA has determined that this final rule will not have 

disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because it does not affect the level of protection provided 

to human health or the environment. The amendments to 40 

CFR part 2 are administrative in nature and therefore do 

not affect the level of protection provided to human health 

or the environment. 

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as 

added by the Small Business Regulatory Enforcement Fairness 

Act of 1996 (SBREFA), generally provides that before a rule 

may take effect, the agency promulgating the rule must 

submit a rule report, which includes a copy of the rule, to 

each House of the Congress and to the Comptroller General 

of the United States. EPA will submit a report containing 

this rule and other required information to the U.S. 

Senate, the U.S. House of Representatives, and the 

Comptroller General of the U.S. prior to publication of the 

rule in the Federal Register. A major rule cannot take 

effect until 60 days after it is published in the Federal 

Register. This action is not a “major rule” as defined by 
Page 173 of 178 

5 U.S.C. 804(2). This rule will be effective [INSERT THE 

DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]. 
Confidentiality Determinations for Data Required Under the Mandatory 

GHG Reporting Rule and Amendments to Special Rules Governing Certain 

Information Obtained Under the CAA 

Page 174 of 178 

List of Subjects 

40 CFR Part 2 

Environmental protection, Administrative practice and 

procedure, Reporting and recordkeeping requirements. 

Dated:_____________________

__________________________

Lisa P. Jackson, 

Administrator. 
Page 175 of 178 

For the reasons stated in the preamble, title 40, 

chapter I, of the Code of Federal Regulations is amended as 

follows: 

PART 2—[AMENDED] 

1. The authority citation for part 2 continues to 

read as follows: 

Authority: 5 U.S.C. 301, 552 (as amended), 553; secs. 

114, 301 and 307, Clean Air Act (as amended) (42 U.S.C. 

7414, 7601, 7607). 

Subpart B—[Amended] 

2. Section 2.301 is amended by revising paragraph (c) 

and adding paragraph (d) to read as follows: 

§2.301 Special Rules Governing Certain Information Obtained 

under the Clean Air Act

* * * * * 

(c) Basic rules that apply without change. Except as 

otherwise provided in paragraph (d) of this section, 

§§2.201 through 2.207, §2.209, and §§2.211 through 2.215 

apply without change to information to which this section 

applies. 

(d) Data submitted under 40 CFR part 98. 
Page 176 of 178 

(1) Sections 2.201 through 2.215 do not apply to data 

submitted under 40 CFR part 98 that EPA has determined, 

pursuant to section 114(c) of the Clean Air Act and 5 

U.S.C. 553(c), to be either of the following: 

(i) Emission data. 

(ii) Data not otherwise entitled to confidential 

treatment pursuant to section 114(c) of the Clean Air Act. 

(2) Except as otherwise provided in paragraphs (d)(2) 

and (d)(4) of this section, §§2.201 through 2.215 do not 

apply to data submitted under 40 CFR part 98 data that EPA 

has determined, pursuant to section 114(c) of the Clean Air 

Act and 5 U.S.C. 553(c), to be entitled to confidential 

treatment. EPA shall treat that information as 

confidential in accordance with the provisions of §2.211, 

subject to paragraph (d)(4) of this section and §2.209. 

(3) Upon receiving a request under 5 U.S.C. 552 for 

data submitted under 40 CFR part 98 that EPA has 

determined, pursuant to section 114(c) of the Clean Air Act 

and 5 U.S.C. §553(c), to be entitled to confidential 

treatment, the EPA office shall furnish the requestor a 

notice that the information has been determined to be 

entitled to confidential treatment and that the request is 

therefore denied. The notice shall include or cite to the 

appropriate EPA determination. 
Page 177 of 178 

(4) Modification of prior confidentiality 

determination. A determination made pursuant to section 

114(c) of the Clean Air Act and 5 U.S.C. §553(c) that 

information submitted under 40 CFR part 98 is entitled to 

confidential treatment shall continue in effect unless, 

subsequent to the confidentiality determination, EPA takes 

one of the following actions: 

(i) EPA determines, pursuant to section 114(c) of the 

Clean Air Act and 5 U.S.C. §553(c), that the information is 

emission data or data not otherwise entitled to 

confidential treatment under section 114(c) of the Clean 

Air Act. 

(ii) The Office of General Counsel issues a final 

determination, based on the criteria in §2.208, stating 

that the information is no longer entitled to confidential 

treatment because of change in the applicable law or newlydiscovered or changed facts. Prior to making such final 

determination, EPA shall afford the business an opportunity 

to submit comments on pertinent issues in the manner 

described by §§2.204(e) and 2.205(b). If, after 

consideration of any timely comments submitted by the 

business, the Office of General Counsel makes a revised 

final determination that the information is not entitled to 

confidential treatment under section 114(c) of the Clean 
Page 178 of 178 

Air Act, EPA will notify the business in accordance with 

the procedures described in §2.205(f)(2). 

* * * * *