39094 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 2 

[EPA–HQ–OAR–2009–0924; FRL–9171–2] 

RIN 2060–AQ04 

Proposed Confidentiality 

Determinations for Data Required 

Under the Mandatory Greenhouse Gas 

Reporting Rule and Proposed 

Amendment to Special Rules 

Governing Certain Information 

Obtained Under the Clean Air Act 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to determine in 

this action the confidentiality status of 

data required to be reported under the 

Mandatory Greenhouse Gas Reporting 

Rule. This action describes the data 

categories EPA has developed for the 

Mandatory Greenhouse Gas Reporting 

Rule data elements and EPA’s proposed 

confidentiality determination for each 

category. In addition, this action 

includes EPA’s proposed amendment to 

Special rules governing certain 

information obtained under the Clean 

Air Act. The proposed amendment 

would authorize EPA to release or 

withhold as confidential reporting 

elements in the Mandatory Greenhouse 

Gas Reporting Rule according to the 

determinations made in a final action 

without taking certain additional 

procedural steps currently required. 

This action also solicits comments on 

several key issues related to the 

proposed confidentiality determinations 

and amendment. 

DATES: Comments. Comments must be 

received on or before September 7, 

2010. 

Public Hearing. EPA does not plan to 

conduct a public hearing unless 

requested. To request a hearing, please 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section 

by July 14, 2010. The hearing will be 

held on July 22, 2010 in the 

Washington, DC area starting at 9 a.m., 

local time. EPA will provide further 

information about the hearing on its 

Web page if a hearing is requested. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2009–0924, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• E-mail: GHGReportingCBI@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Environmental Protection 

Agency, EPA Docket Center (EPA/DC), 

Mailcode 6102T, Attention Docket ID 

No. EPA–HQ–OAR–2009–0924, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460. 

• Hand Delivery: EPA Docket Center, 

Public Reading Room, EPA West 

Building, Room 3334, 1301 Constitution 

Avenue, NW., Washington, DC 20004. 

Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2009– 

0924. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Docket, EPA/DC, EPA West, 

Room B102, 1301 Constitution Ave., 

NW., Washington, DC. This Docket 

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

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Air Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Carole Cook, Climate Change Division, 

Office of Atmospheric Programs (MC– 

6207J), Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460; telephone 

number: (202) 343–9263; fax number: 

(202) 343–2342; e-mail address: 

GHGMRR@epa.gov. For technical 

information, contact the Greenhouse 

Gas Reporting Rule Hotline at: http:// 

www.epa.gov/climatechange/emissions/ 

ghgrule_contactus.htm. Alternatively, 

contact Carole Cook at 202–343–9263. 

SUPPLEMENTARY INFORMATION: 

Additional Information on Submitting 

Comments: To expedite review of your 

comments by Agency staff, you are 

encouraged to send a separate copy of 

your comments, in addition to the copy 

you submit to the official docket, to 

Carole Cook, U.S. EPA, Office of 

Atmospheric Programs, Climate Change 

Division, Mail Code 6207–J, 

Washington, DC, 20460, telephone (202) 

343–9263, e-mail 

GHGReportingCBI@epa.gov. 

Regulated Entities. This proposed 

determination and amendment to 40 

CFR 2.301 would affect entities that 

must submit annual greenhouse gas 

(GHG) reports under 40 CFR Part 98. 

The Administrator determined that Part 

98 is subject to the provisions of Clean 

Air Act (CAA) section 307(d). See CAA 

section 307(d)(1)(V) (the provisions of 

CAA section 307(d) apply to ‘‘such other 

actions as the Administrator may 

determine’’). The Mandatory 

Greenhouse Gas Reporting Rule and this 

action affect fuel and chemicals 

suppliers, and direct emitters of GHGs. 

Affected categories and entities include 

those listed in Table 1 of this preamble: 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 39095 

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: 

211 Extractors of crude petroleum and natural gas. 

321 Manufacturers of lumber and wood products. 

322 Pulp and paper mills. 

325 Chemical manufacturers. 

324 Petroleum refineries, and manufacturers of coal products. 

316, 326, 339 Manufacturers of rubber and miscellaneous plastic products. 

331 Steel works, blast furnaces. 

332 Electroplating, plating, polishing, anodizing, and coloring. 

336 Manufacturers of motor vehicle parts and accessories. 

221 Electric, gas, and sanitary services. 

622 Health services. 

611 Educational services. 

Electricity Generation ................................ 221112 Fossil-fuel fired electric generating units, including units owned by Federal and municipal governments and units located in Indian Country. 

Adipic Acid Production .............................. 325199 Adipic acid manufacturing facilities. 

Aluminum Production ................................ 331312 Primary Aluminum production facilities. 

Ammonia Manufacturing ........................... 325311 Anhydrous and aqueous ammonia manufacturing facilities. 

Cement Production ................................... 327310 Portland Cement manufacturing plants. 

Electronics Manufacturing ........................ 334111 Microcomputers manufacturing facilities. 

334413 Semiconductor, photovoltaic (solid-state) device manufacturing facilities. 

334419 LCD unit screens manufacturing facilities. 

MEMS manufacturing facilities. 

Ethanol Production ................................... 325193 Ethyl alcohol manufacturing facilities. 

Ferroalloy Production ................................ 331112 Ferroalloys manufacturing facilities. 

Fluorinated GHG Production .................... 325120 Industrial gases manufacturing facilities. 

Food Processing ....................................... 311611 Meat processing facilities. 

311411 Frozen fruit, juice, and vegetable manufacturing facilities. 

311421 Fruit and vegetable canning facilities. 

Glass Production ...................................... 327211 Flat glass manufacturing facilities. 

327213 Glass container manufacturing facilities. 

327212 Other pressed and blown glass and glassware manufacturing facilities. 

HCFC–22 Production and HFC–23 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, dolomitic hydrates manufacturing facilities. 

Magnesium Production ............................. 331419 Primary refiners of nonferrous metals by electrolytic methods. 

331492 Secondary magnesium processing plants. 

Municipal Solid Waste Landfills ................ 562212 Solid waste landfills. 

221320 Sewage treatment facilities. 

Nitric Acid Production ............................... 325311 Nitric acid manufacturing facilities. 

Petroleum and Natural Gas Systems ....... 486210 Pipeline transportation of natural gas. 

221210 Natural gas distribution facilities. 

211 Extractors of crude petroleum and natural gas. 

211112 Natural gas liquid extraction facilities. 

Petrochemical Production ......................... 32511 Ethylene dichloride manufacturing facilities. 

325199 Acrylonitrile, ethylene oxide, methanol manufacturing facilities. 

325110 Ethylene manufacturing facilities. 

325182 Carbon black manufacturing facilities. 

Petroleum Refineries ................................ 324110 Petroleum refineries. 

Phosphoric Acid Production ..................... 325312 Phosphoric acid manufacturing facilities. 

Pulp and Paper Manufacturing ................. 322110 Pulp mills. 

322121 Paper mills. 

322130 Paperboard mills. 

Silicon Carbide Production ....................... 327910 Silicon carbide abrasives manufacturing facilities. 

Soda Ash Manufacturing .......................... 325181 Alkalies and chlorine manufacturing facilities. 

212391 Soda ash, natural, mining and/or beneficiation. 

Sulfur Hexafluoride (SF6) from Electrical 

Equipment.

221121 Electric bulk power transmission and control facilities. 

Titanium Dioxide Production ..................... 325188 Titanium dioxide manufacturing facilities. 

Underground Coal Mines .......................... 212113 Underground anthracite coal mining operations. 

212112 Underground bituminous coal mining operations. 

Zinc Production ......................................... 331419 Primary zinc refining facilities. 

331492 Zinc dust reclaiming facilities, recovering from scrap and/or alloying purchased metals. 

Industrial Landfills ..................................... 562212 Solid waste landfills. 

221320 Sewage treatment facilities. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
39096 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

TABLE 1—EXAMPLES OF AFFECTED ENTITIES BY CATEGORY—Continued 

Category NAICS Examples of affected 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. 

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. 

CO2 ER Projects ....................................... 211 Oil and Gas Extraction Projects using CO2 ER. 

GS Sites .................................................... N/A CO2 geologic sequestration projects. 

Table 1 of this preamble is not 

intended to be exhaustive, but rather 

provides a guide for readers regarding 

facilities likely to be affected by this 

action. This table lists the types of 

facilities that EPA is now aware could 

be potentially affected by the reporting 

requirements under 40 CFR part 98. 

Other types of facilities and suppliers 

not listed in the table could also be 

subject to reporting requirements. To 

determine whether you are affected by 

this action, you should carefully 

examine the applicability criteria found 

in 40 CFR part 98, subpart A. If you 

have questions regarding the 

applicability of this action to a 

particular facility, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

Many facilities that are affected by 

Part 98 have GHG emissions from 

multiple source categories listed in 

Table 1 of this preamble. 

Acronyms and Abbreviations. The 

following acronyms and abbreviations 

are used in this document. 

BAMM Best Available Monitoring Methods 

CAA Clean Air Act 

CBI confidential business information 

CEMS continuous emission monitoring 

system(s) 

CFR Code of Federal Regulations 

DoE Department of Energy 

EPCRA Emergency Planning and 

Community Right to Know Act 

EIA Energy Information Administration 

EO Executive Order 

EOR enhanced oil recovery 

EPA U.S. Environmental Protection Agency 

GHG greenhouse gas 

FOIA Freedom of Information Act 

HHV higher heating value 

LDC local distribution company 

MRV Monitoring, Reporting, and 

Verification 

Mscf thousand standard cubic feet 

NEI National Emissions Inventory 

NAICS North American Classification 

System 

RFA Regulatory Flexibility Act 

SCC Source Classification Code 

SIC Standard Industrial Classification Code 

TRI Toxics Release Inventory 

UMRA Unfunded Mandates Reform Act 

U.S. United States 

Table of Contents 

I. Executive Summary, Background, and 

General Rationale 

A. Executive Summary 

B. 40 CFR Part 98 

C. Section 114 of CAA, ‘‘Emission Data,’’ 

and Confidentiality 

D. Rationale for Making Confidentiality 

Determinations Through This Action 

E. Proposed Rule Amendment Addressing 

Treatment of Part 98 Data Elements 

F. Other Relevant Background 

G. Public Comments on the Proposed 

Mandatory GHG Reporting Rule 

II. Proposed Emission Data and 

Confidentiality Determinations for Data 

Required by the Mandatory GHG 

Reporting Rule in Part 98 

A. Overview 

B. Request for Comments 

C. Direct Emitting Facilities 

D. Suppliers 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

IV. Next Steps 

I. Executive Summary, Background, 

and General Rationale 

A. Executive Summary 

Under Part 98 of the final Mandatory 

Greenhouse Gas Reporting Rule (74 FR 

56259, October 30, 2009, and 

subsequent amendments), hereinafter 

referred to as Part 98, EPA will collect 

data from facilities that directly emit 

GHGs from their processes or stationary 

fuel combustion sources (‘‘direct 

emitters’’) as well as upstream suppliers 

of fuels and industrial GHGs. EPA 

recognizes the importance of this data 

and is committed to transparency and 

access to this data. Specific data 

elements to be reported in the annual 

reports vary by source category, and 

considering the combination of all 

source categories, there are over 1,500 

individual data elements that are 

required to be reported in annual 

reports. In addition to the data elements 

required in annual reports, facilities 

may also submit other data elements as 

part of Best Available Monitoring 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 39097 

1The only exception would be supporting 

documentation provided by applicants for approval 

of alternative methods for adipic acid and nitric 

acid facilities. EPA recognizes that supporting 

documentation included in these applications may 

include information that is sensitive or proprietary, 

such as detailed process designs or site plans. 

Because the exact nature of this documentation 

cannot be predicted with certainty, EPA proposes 

to make case-by-case confidentiality determinations 

under CAA section 114(c) for any supporting 

documentation for approval of alternative methods 

for adipic acid and nitric acid facilities claimed 

confidential by applicants either upon receipt of 

such information or upon a request for such 

information after receipt. 

Method (BAMM) extension requests, 

requests for approval of alternative 

methods for adipic acid or nitric acid 

production facilities, or Monitoring, 

Reporting and Verification (MRV) Plans 

for Geological Sequestration facilities 

(see proposed 40 CFR part 98, subpart 

RR, 75 FR 18576, April 12, 2010). 

This action proposes to determine the 

confidentiality status of the data 

elements required to be reported under 

Part 98 pursuant to CAA section 114(c).1

To make the proposed determinations, 

EPA has grouped the Part 98 data 

elements into 22 data categories (11 for 

direct emitters and 11 for suppliers), 

each containing similar data elements. 

The proposed determinations regarding 

confidential treatment of each data 

category are summarized in Table 2 of 

this preamble for direct emitters and 

Table 3 of this preamble for suppliers. 

Further background, information on 

EPA’s decision process, and detailed 

rationales for the proposed 

determinations for each data category 

are presented in the remainder of this 

preamble. Public release of the 

information collected under Part 98 that 

are emission data or non-CBI is 

important because it ensures 

transparency and promotes public 

confidence in the data. In an effort to 

promote transparency, EPA intends to 

publish on EPA’s Web site much of the 

Part 98 data that we determine to be 

emission data or not otherwise entitled 

to confidential treatment pursuant to 

CAA section 114(c). Those data 

elements that we determine to be 

entitled to confidential treatment would 

not be published on the Web site or 

made available to the public through 

Freedom of Information Act (FOIA) 

requests. 

TABLE 2—SUMMARY OF PROPOSED DETERMINATIONS FOR DIRECT EMITTER DATA CATEGORIES

Data category 

Proposed 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 

CBI b

Facility and Unit Identifier Information ......................................................................................... X ........................ ........................

Emissions ..................................................................................................................................... X ........................ ........................

Inputs to Emission Equations ...................................................................................................... X ........................ ........................

Calculation Methodology and Methodological Tier ..................................................................... X ........................ ........................

Data Elements Reported for Periods of Missing Data that are Not Inputs to Emission Equations .......................................................................................................................................... X ........................ ........................

Unit/Process ‘‘Static’’ Characteristics that are Not Inputs to Emission Equations ...................... X 

Unit/Process Operating Characteristics that are Not Inputs to Emission Equations .................. X ........................

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 this preamble for further discussion. bAs explained in more detail in Section I.C of the preamble, CAA section 114(c) affords confidential treatment to data (except emission data) 

that are considered trade secret or confidential business information (collectively referred to as ‘‘CBI’’). 

TABLE 3—SUMMARY OF PROPOSED DETERMINATIONS FOR SUPPLIER DATA CATEGORIES

Data category 

Proposed confidentiality determinations for data 

elements in each category 

Emission 

data a

Data that are 

not emission 

data and not 

CBI 

Data that are 

not emission 

data but are 

CBIb

GHGs reported ............................................................................................................................ ........................ cX cX 

Production/throughput quantities and composition ..................................................................... ........................ cX cX 

Identification information .............................................................................................................. ........................ X ........................

Unit/process operating characteristics ......................................................................................... ........................ dX ........................

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 Extension Requests ........................... ........................ ........................ X 

a Under CAA section 114, ‘‘emission data’’ is not entitled to confidential treatment. See Section I.C of this preamble for further discussion. bAs explained in more detail in Section I.C of the preamble, CAA section 114(c) affords confidential treatment to data (except emission data) 

that are considered trade secret or confidential business information (collectively referred to as ‘‘CBI’’). 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
39098 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

2The vehicle manufacturing requirements are 

found in 40 CFR parts 86, 87, 89, 90, 94, 1033, 1039, 

1042, 1045, 1048, 1051, 1054, and 1065. The data 

collected under those parts are not included in this 

notice. This proposed CBI determination applies 

only to the data collected under 40 CFR part 98. 

3EPA will not be implementing 40 CFR part 98, 

subpart JJ due to a Congressional restriction 

prohibiting the expenditure of funds for this 

purpose. As a result, 40 CFR part 98, subpart JJ is 

not included in the scope of this notice. 

cEPA proposes to determine that some facility-level and product-specific data elements in this data category are entitled to confidential treatment while others are not entitled to confidential treatment. Such data elements would be released only in aggregated form. See Table 4 and 5 

in Section II.D of this preamble for summaries of the proposed confidential determinations and levels of aggregation (for disclosure purposes) for 

these data categories. d Reported data will be released except for one reported data element for suppliers of industrial GHGs (40 CFR part 98, subpart OO) that will 

be held confidential. See Section II.D.5 of this preamble. 

In this action, EPA is also proposing 

a regulatory amendment to 40 CFR 

2.301 (Special rules governing certain 

information obtained under the Clean 

Air Act) that sets forth specific 

procedures for handling Part 98 data. 

The amendment would allow EPA to 

release Part 98 data that are determined 

to be emission data or not otherwise 

entitled to confidential treatment upon 

finalizing the confidentiality status of 

these data. The proposed amendment 

also sets forth procedures for treatment 

of Part 98 data determined to be CBI. 

The proposed amendment pertains only 

to Part 98. 

Lastly, EPA is soliciting comment on 

several key issues related to the 

confidentiality determinations and 

proposed amendments, such as whether 

the proposed data categories are 

appropriate and reasonable, whether 

there are unique circumstances that 

would warrant a limited process for a 

facility to seek reconsideration of a final 

determination of non-confidential status 

when it submits its information, 

whether alternative interpretations of 

emission data would be appropriate, 

and whether there are any approaches 

for delaying publication of data 

elements that would ease potential 

concerns by industry while enabling 

EPA to meet our obligations under FOIA 

and CAA. 

B. 40 CFR Part 98 

Part 98 requires reporting of 

numerous data elements to characterize, 

quantify, and verify GHG emissions and 

related information. Following proposal 

of Part 98, EPA received comments 

addressing the issue of whether certain 

data could be entitled to confidential 

treatment. Industry commenters 

generally expressed concern that they 

consider much of the information 

reported under the rule to be 

confidential (e.g., production and 

process data). Some commenters also 

presented arguments regarding why 

certain information would not be 

‘‘emission data’’ under the CAA. Other 

commenters favored the wide 

dissemination of information, and some 

argued that all of the information 

gathered under Part 98 should be 

‘‘emission data’’ and hence not entitled 

to confidential treatment. In response to 

these comments, EPA stated in the 

preamble to the final rule (74 FR 56287, 

October 30, 2009), that through a notice 

and comment process, it would 

establish those data elements that are 

entitled to confidential treatment. 

The Mandatory GHG Reporting Rule 

was promulgated under the authority of 

CAA sections 114(a) (for stationary 

sources) and 208 (for motor vehicle and 

engine manufacturers).2 Today’s 

proposed action addresses the 

confidentiality of the data elements 

codified in 40 CFR part 98. 

Several subparts of Part 98 were 

published on October 30, 2009 (74 FR 

56374). EPA intends to finalize 

additional source category subparts 

during calendar year 2010. Today’s 

action covers data elements that will be 

reported under the subparts that were 

finalized in 2009, data elements in 

subparts that are expected to be 

finalized in 2010, and data elements in 

proposed amendments to Part 98 that 

are expected to be finalized in 2010. 

Specifically, the action covers the 

following data elements: 

(1) Data required by 40 CFR part 98, 

subpart A and other subparts 

promulgated in 2009. Today’s action 

includes the data elements required by 

40 CFR part 98, subpart A and other 

subparts that were published on October 

30, 2009. This includes the data 

elements required to be reported in 

annual reports under the following 

subparts of Part 98: 

• Subpart A, General Provisions; 

• Subpart C, General Stationary Fuel 

Combustion Sources; 

• Subpart D, Electricity Generation; 

• Subpart E, Adipic Acid Production; 

• Subpart F, Aluminum Production; 

• Subpart G, Ammonia 

Manufacturing; 

• Subpart H, Cement Production; 

• Subpart K, Ferroalloy Production; 

• Subpart N, Glass Production; 

• Subpart O, HCFC–22 Production 

and HFC–23 Destruction; 

• Subpart P, Hydrogen Production; 

• Subpart Q, Iron and Steel 

Production; 

• Subpart R, Lead Production; 

• Subpart S, Lime Manufacturing; 

• Subpart U, Miscellaneous Uses of 

Carbonate; 

• Subpart V, Nitric Acid Production; 

• Subpart X, Petrochemical 

Production; 

• Subpart Y, Petrochemical 

Production; 

• Subpart Z, Phosphoric Acid 

Production; 

• Subpart AA, Pulp and Paper 

Manufacturing; 

• Subpart BB, Silicon Carbide 

Production; 

• Subpart CC, Soda Ash 

Manufacturing; 

• Subpart EE, Titanium Dioxide 

Production; 

• Subpart GG, Zinc Production; 

• Subpart HH, Municipal Solid Waste 

Landfills; 

• Subpart JJ, Manure Management; 3

• Subpart LL, Suppliers of Coal-based 

Liquid Fuels; 

• Subpart MM, Suppliers of 

Petroleum Products; 

• Subpart NN, Suppliers of Natural 

Gas and Natural Gas Liquids; 

• Subpart OO, Suppliers of Industrial 

Greenhouse Gases; and 

• Subpart PP, Suppliers of Carbon 

Dioxide. 

In addition, the action covers data 

required to be submitted in BAMM 

extension requests and requests from 

adipic acid and nitric acid facilities for 

approval of alternative monitoring 

methods. Although amendments may be 

made during 2010 to further clarify 

some of these data elements, we expect 

that any amended data element would 

still logically fall into the same or 

another data category that is addressed 

in this action and is therefore covered 

by the confidentiality determination for 

that data category. In the final 

confidentiality determination, EPA will 

address any revised data elements 

within these subparts that have been 

amended prior to the publication of the 

final confidentiality determination. 

(2) Data required by subparts that are 

being finalized in a separate action 

published today. These subparts include 

the following subparts from Part 98: 

• Subpart FF, Underground Coal 

Mines; 

• Subpart T, Magnesium Production; 

• Subpart TT, Industrial Landfills; 

and 

• Subpart II, Wastewater Treatment. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 39099 

(3) Data required by subparts that 

have recently been proposed or reproposed but not yet finalized. Earlier 

this year, EPA proposed or re-proposed 

several source category subparts that 

were not included in the October 30, 

2009 final rule. These include data 

elements to be reported in the annual 

reports and data elements to be 

included in other documents required to 

be submitted to EPA (e.g., data elements 

included in MRV Plans for geological 

sequestration facilities (proposed 40 

CFR part 98, subpart RR, 75 FR 18576, 

April 12, 2010). These subparts are as 

follows: 

• Subpart I, Electronics 

Manufacturing (75 FR 18652, April 12, 

2010); 

• Subpart L, Fluorinated Gas 

Production (75 FR 18652, April 12, 

2010); 

• Subpart W, Petroleum and Natural 

Gas Systems (75 FR 18608, April 12, 

2010); 

• Subpart DD, Sulfur Hexafluoride 

(SF6) and Perfluorocarbons (PFCs) from 

Electrical Equipment at an Electric 

Power System (75 FR 18652, April 12, 

2010); 

• Subpart RR, Injection and Geologic 

Sequestration of Carbon Dioxide (75 FR 

18576, April 12, 2010); 

• Subpart SS, Sulfur Hexafluoride 

and PFCs from Electrical Equipment 

Manufacture or Refurbishment (75 FR 

18652, April 12, 2010); 

• Subpart QQ, Importers and 

Exporters of Fluorinated Greenhouse 

Gases Contained in Pre-charged 

Equipment or Closed-cell Foams (75 FR 

18652, April 12, 2010). 

EPA expects to finalize these subparts 

in 2010. Today’s proposed 

confidentiality determination covers 

these data elements based on the 

proposed (and re-proposed) subparts. 

Although the data elements in these 

subparts, when finalized, may not be 

exactly the same as those in the 

proposed subparts, we expect that any 

revised or refined data element in the 

relevant final subpart would still 

logically fall into the same or another 

data category that is addressed in this 

action and would therefore be covered 

by the confidentiality determination for 

that data category. EPA will address 

such data elements in the final 

confidentiality determination. 

(4) Data required by the proposed 

amendment to 40 CFR part 98, subpart 

A (75 FR 18455, April 12, 2010). The 

proposed amendment to 40 CFR part 98, 

subpart A would require reporting of 

parent company and other ownership 

information, North American 

Classification System (NAICS) codes, 

and operation of cogeneration units. 

Today’s proposed confidentiality 

determination covers the data elements 

as proposed on April 12, 2010. 

Although the data elements in the final 

amendment to 40 CFR part 98, subpart 

A may not be exactly the same as they 

were in the proposed amendment, we 

expect that any revised or refined data 

element in the final amendment would 

still logically fall into the same or 

another data category that is already 

addressed in this action and would 

therefore be covered by the final 

confidentiality determination for that 

category. EPA will address such data 

elements in the final confidentiality 

determination. 

(5) Data required by the proposed 

Technical Corrections, Clarifying and 

Other Amendments to Certain 

Provisions of the Greenhouse Gas 

Reporting Rule (signed May 27, 2010). 

The proposed amendments would 

correct technical and editorial errors, 

and would correct data reporting 

requirements so that they more closely 

conform to the information used to 

perform emission calculations. The 

reporting requirements from the 

following Part 98 subparts are affected 

by these proposed amendments: 

• Subpart E, Adipic Acid Production; 

• Subpart H, Cement Production; 

• Subpart K, Ferroalloy Production; 

• Subpart N, Glass Production; 

• Subpart O, HCFC–22 Production 

and HFC–23 Destruction; 

• Subpart P, Hydrogen Production; 

• Subpart Q, Iron and Steel 

Production; 

• Subpart S, Lime Manufacturing; 

• Subpart V, Nitric Acid Production; 

• Subpart Z, Phosphoric Acid 

Production; 

• Subpart CC, Soda Ash 

Manufacturing; 

• Subpart EE, Titanium Dioxide 

Production; 

• Subpart GG, Zinc Production; 

• Subpart HH, Municipal Solid Waste 

Landfills; 

• Subpart LL, Suppliers of Coal-based 

Liquid Fuels; 

• Subpart MM, Suppliers of 

Petroleum Products; and 

• Subpart NN, Suppliers of Natural 

Gas and Natural Gas Liquids. 

EPA expects to publish the proposed 

amendments after receiving and 

addressing public comments. Although 

the data elements in the final 

amendments may not be exactly the 

same as they were in the proposed 

amendments, we expect that any revised 

or refined data element in the final 

amendments would still logically fall 

into the same or another data category 

that is already addressed in this action 

and would therefore be covered by the 

final confidentiality determination for 

that category. EPA will address such 

data elements in the final 

confidentiality determination. 

Publication of Data. As previously 

mentioned, EPA is committed to 

transparency and intends to publish on 

EPA’s Web site much of the Part 98 data 

that is submitted; however, we are not 

publishing data elements that are CBI. 

Public release of the information 

collected under Part 98 that are 

emission data or non-CBI is important 

because it ensures transparency and 

promotes public confidence in the data. 

For example, facility identification data 

(e.g., name and physical address of a 

direct emitter) allows the public to 

identify which facilities are emitting 

GHGs and how much they are emitting. 

This information is useful for comparing 

the GHG emissions of different facilities 

and for evaluating changes in a facility’s 

GHG emissions over time. Comparisons 

of facility-specific data will improve our 

understanding of the factors that 

influence GHG emission rates and 

actions facilities could in the future or 

already take to reduce emissions. By 

tracking changes in facility-specific 

data, EPA and other stakeholders will be 

able to track trends in GHG emissions 

from industries and facilities over time 

and assess responses to policies and 

potential regulations. Information on 

unit characteristics and operations are 

valuable to policy makers, the public, 

and industry because they improve our 

understanding of the sources of 

emissions and the relationship between 

process operating characteristics and 

emissions. The number of times 

substitute data are used in place of 

measured parameters, methods used to 

calculate emissions, methods used to 

determine the composition of materials, 

and the frequency of calibrating 

measurement devices are all valuable 

for evaluating the quality of the reported 

data. These data are also important to 

the GHG verification checks. 

Data submitted by suppliers are 

needed by EPA and other users of the 

reported data to help develop policies 

that could affect sources under a variety 

of CAA provisions. For example, the 

geographic distribution of suppliers of 

various fuel types and industrial GHGs 

may prove useful in evaluating the 

impact of transportation distances and 

transportation emissions on the 

feasibility and effectiveness of different 

GHG control strategies. These may 

include regulatory and nonregulatory 

strategies and technologies for 

preventing or reducing air pollutants, 

such as energy conservation, end-use 

efficiency, and fuel- or raw-material 

switching. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
39100 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

This is not a comprehensive listing of 

all the ways the information collected 

under Part 98 is valuable to EPA and 

others, but it illustrates the importance 

of making available to the public data 

that are not entitled to confidential 

treatment under CAA section 114(c). 

Such disclosure is required under CAA 

section 114(c). 

Given the importance of this data, we 

are publishing data elements that are 

emission data or are determined to be 

not CBI. For those limited data that are 

CBI, EPA intends to publish the data 

only where they can be aggregated in a 

manner to protect the confidentiality of 

these data elements. There are a number 

of different formats in which both CBI 

and non-CBI data could be published 

using tables, graphs, charts, and other 

graphical methods. For example, EPA 

could publish tables or bar charts 

showing the emission data for 

individual facilities to allow 

comparison of data between facilities 

within a source category. Alternatively, 

EPA could publish pie charts of 

emission data by source category or by 

geographical region to allow easy 

comparison of data between different 

industry sectors or locations. EPA is 

interested in receiving suggestions on 

formats for presenting both CBI and 

non-CBI data that would be most useful 

to the public. We are specifically 

soliciting suggestions on approaches to 

aggregating CBI data that would provide 

useful information to the public without 

disclosing data determined to be CBI. 

We are also soliciting comment on the 

value of publishing facility-level CBI 

data elements within numerical ranges 

that maintain the confidentiality of the 

actual reported values. Specifically, we 

are soliciting comment on whether 

publishing ranges of values at the 

facility-level would provide valuable 

information that aggregated data may 

not convey. 

C. Section 114 of CAA, ‘‘Emission Data,’’ 

and Confidentiality 

Section 114(c) of CAA requires that 

‘‘[a]ny records, reports, or information 

obtained under [CAA section 114(a)] 

shall be available to the public, except 

that upon a showing satisfactory to the 

Administrator by any person that 

records, reports, or information, or 

particular part thereof, (other than 

emission data) * * * if made public, 

would divulge methods or processes 

entitled to protection as trade secrets 

* * *, the Administrator shall consider 

such record, report, or information or 

particular portion thereof confidential 

* * *.’’ EPA has interpreted CAA 

section 114(c) to afford confidential 

treatment to both trade secrets and 

confidential business information 

(hereinafter collectively referred to as 

‘‘CBI’’) (40 FR 21987, 21990 (May 20, 

1975)). Section 114(c) of CAA precludes 

‘‘emission data’’ from being considered 

confidential and requires that such data 

be available to the public. 

Pursuant to CAA section 114(c), EPA 

proposes to determine the 

confidentiality status of data that are 

required to be reported under Part 98. 

As described in more detail in Section 

II.A of this preamble, EPA has grouped 

Part 98 data into 22 separate data 

categories and proposes to determine 

the confidentiality status of Part 98 data 

on a category basis. There are 11 

categories of direct emitter data and 11 

categories of supplier data. For the list 

of all 22 data categories and brief 

descriptions of the data elements within 

each category, please see Section II.C of 

this preamble for direct emitter data 

categories and Section II.D of this 

preamble for supplier data categories. 

In making the confidentiality 

determination, EPA first examined, on a 

data category basis, whether the data 

elements constituted ‘‘emission data’’ 

under CAA section 114(c). Specifically, 

EPA examined whether the data 

elements in a given category met the 

definition of ‘‘emission data’’ at 40 CFR 

2.301(a)(2)(i), which is as follows: 

Emission data means, with reference 

to any source of emission of any 

substance into the air— 

(A) Information necessary to 

determine the identity, amount, 

frequency, concentration, or other 

characteristics (to the extent related to 

air quality) of any emission which has 

been emitted by the source (or of any 

pollutant resulting from any emission 

by the source), or any combination of 

the foregoing; 

(B) Information necessary to 

determine the identity, amount, 

frequency, concentration, or other 

characteristics (to the extent related to 

air quality) of the emissions which, 

under an applicable standard or 

limitation, the source was authorized to 

emit (including, to the extent necessary 

for such purposes, a description of the 

manner or rate of operation of the 

source); and 

(C) A general description of the 

location and/or nature of the source to 

the extent necessary to identify the 

source and to distinguish it from other 

sources (including, to the extent 

necessary for such purposes, a 

description of the device, installation, or 

operation constituting the source). 

With respect to the 11 categories of 

direct emitter data, because there are no 

established GHG emission limits for the 

facilities subject to Part 98, EPA finds 

that 2.301(a)(2)(i)(B), which addresses 

emissions that sources are authorized to 

emit, does not apply. EPA focused its 

analysis on whether the data elements 

in a given direct emitter category met 

the emission data definitions at 

2.301(a)(2)(i)(A) or (C). EPA proposes to 

determine that the data in a direct 

emitter data category qualify as 

‘‘emission data’’ if they are necessary to 

determine the identity, amount, 

frequency, or concentration of the 

emission emitted by the reporting 

facilities. See 40 CFR 2.301(a)(2)(i)(A). 

As discussed in more detail in Sections 

II.C.2 through II.C.6 of this preamble, 

EPA proposes to determine that the 

GHG emissions to be reported by direct 

emitters, as well as those data that are 

required to perform the emissions 

calculations specified in the direct 

emitter subparts (i.e., inputs to 

equations/calculations as well as 

information otherwise needed to 

calculate or determine emissions), meet 

the definition of ‘‘emission data’’ at 40 

CFR 2.301(a)(2)(i)(A). In addition, EPA 

proposes to determine that locational 

and other identifying information 

regarding the emitting sources (i.e., the 

data elements in the direct emitter 

facility and unit identifier information 

category) are emission data because 

these data describe a reporting emitting 

source’s location and other identifying 

information that help distinguish the 

source from other sources. See 40 CFR 

2.301(a)(2)(i)(C). 

With respect to the data elements in 

the remaining direct emitter data 

categories, EPA proposes to determine 

that they are not ‘‘emission data’’ under 

40 CFR 2.301(a)(2)(i) for purposes of 

determining the GHG emissions 

required to be reported by direct 

emitters under Part 98. These data 

elements are in the following direct 

emitter data categories: 

• Unit/process ‘‘static’’ characteristics 

that are not inputs to equations. 

• Unit/process operating 

characteristics that are not inputs to 

equations. 

• Test and calibration methods. 

• Production/throughput data that are 

not inputs to emission equations. 

• Raw materials consumed that are 

not inputs to emission equations. 

• Process-Specific and Vendor Data 

Submitted in BAMM Extension 

Requests. 

Part 98 sets forth in relevant subparts 

the specific methods and equations for 

calculating direct emitters’ GHG 

emissions. Direct emitters’ GHG 

emissions can be (and must be) 

calculated by inputting the necessary 

data elements into the relevant 

equations (or other specified calculation 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 39101 

4For example, in a 1991 Federal Register notice, 

EPA described certain information that it would 

consider emission data under CAA section 114 (56 

FR 7042, February 21, 1991). 

methodologies) as prescribed in Part 98. 

None of the data elements in the data 

categories listed immediately above are 

inputs to equations/calculations or 

information otherwise needed to 

calculate or determine emissions and 

are therefore not necessary to calculate 

direct emitters’ GHG emissions under 

Part 98. We therefore propose to 

determine that these data elements are 

not ‘‘emission data’’ under 40 CFR 

2.301(a)(2)(i) for purposes of 

determining the direct emitters’ GHG 

emissions that are required to be 

reported under Part 98. However, EPA 

notes that these data elements may 

nonetheless meet the criteria of 

‘‘emission data’’ at 40 CFR 2.301(a)(2)(i) 

if they are ‘‘necessary to determine the 

identity, amount, frequency, 

concentration, or other characteristics 

(to the extent related to air quality)’’ of 

a reporting facility’s emission in the 

context of another (or future) regulatory 

program or future legislation. Therefore, 

the proposed determination described 

above is made strictly in the context of 

determining the direct emitters’ GHG 

emissions required to be reported under 

Part 98, considering the specific 

equations and methodologies prescribed 

in the relevant Part 98 subparts for 

calculating such emissions. The 

proposed determination does not speak 

to whether any of these data elements 

may qualify as ‘‘emission data’’ in any 

other contexts described above. 

With respect to the 11 categories of 

supplier data, EPA proposes to 

determine that none of these data 

qualify as emission data. EPA interprets 

2.301(a)(2)(i) to define ‘‘emission data’’ 

as information relative to emissions 

emitted, or authorized to be emitted, by 

the reporting sources. The data to be 

reported by suppliers under Part 98 

pertain to potential future GHG 

emissions from the eventual use of the 

suppliers’ products, not emissions from 

these suppliers’ facilities. Therefore, 

these data do not meet the definition of 

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

For Part 98 data that are not 

considered ‘‘emission data’’ in today’s 

proposal, EPA proposes to determine, 

by category, whether such data qualify 

as CBI under CAA section 114(c). In 

making the CBI determination, EPA 

considered the confidentiality 

determination criteria at 40 CFR 2.208, 

which are as follows: 

Determinations issued under §§ 2.204 

through 2.207 shall hold that business 

information is entitled to confidential 

treatment for the benefit of a particular 

business if: 

(a) The business has asserted a 

business confidentiality claim which 

has not expired by its terms, nor been 

waived nor withdrawn; 

(b) The business has satisfactorily 

shown that it has taken reasonable 

measures to protect the confidentiality 

of the information, and that it intends to 

continue to take such measures; 

(c) The information is not, and has not 

been, reasonably obtainable without the 

business’s consent by other persons 

(other than governmental bodies) by use 

of legitimate means (other than 

discovery based on a showing of special 

need in a judicial or quasi-judicial 

proceeding); 

(d) No statute specifically requires 

disclosure of the information; and 

(e) Either: 

(1) The business has satisfactorily 

shown that disclosure of the 

information is likely to cause substantial 

harm to the business’s competitive 

position; or 

(2) The information is voluntarily 

submitted information (see § 2.201(i)), 

and its disclosure would be likely to 

impair the Government’s ability to 

obtain necessary information in the 

future. 

Because EPA proposes to determine 

the CBI status of Part 98 data in advance 

of their submission, EPA assumes in 

this proposal that the data meet the 

criteria at 40 CFR 2.208(a) and (b). 

Specifically, EPA assumes that the 

reporting facilities have asserted 

confidentiality claims. EPA further 

assumes that the reporting facilities are 

taking and will continue to take 

reasonable measures to protect the data. 

The data elements at issue also meet the 

criterion at 40 CFR 2.208(d). As 

discussed above, EPA proposes to 

determine that these data elements are 

not ‘‘emission data’’ (which must be 

disclosed under CAA section 114(c)), 

and EPA is not aware of any other 

statute requiring their disclosure. With 

the assumptions/findings described 

above, EPA evaluated whether the 

remaining criteria at 40 CFR 2.208 are 

met. Specifically, EPA focused on 

whether release of the data is likely to 

cause substantial harm to the business’s 

competitive position. See 40 CFR 

2.208(e)(1). EPA also considered 

whether the data are already publicly 

available or reasonably obtainable by a 

non-governmental entity. See 40 CFR 

2.208(c). EPA proposes to determine 

that the data in a given category are not 

CBI (or are ‘‘non-CBI’’) under CAA 

section 114(c) if the data fail to satisfy 

either of the remaining criteria (i.e., 40 

CFR 2.208(c) and (e)). If EPA finds that 

the data in a given category meet the 

remaining criteria at 40 CFR 2.208, EPA 

proposes to determine that such data are 

CBI under CAA section 114(c). 

Data that are determined to be nonCBI must be disclosed to the public 

under CAA section 114(c). Data that are 

determined to be CBI will be entitled to 

confidential treatment as long as the 

data continue to meet all of the criteria 

at 40 CFR 2.208. 

EPA is seeking comment generally on 

its proposed interpretation of the term 

‘‘emission data’’, to include data that are 

required to perform emission 

calculations specified in the direct 

emitter subparts, as used in the statute 

and as defined in EPA’s regulations at 

40 CFR 2.301. For example, would a 

narrower interpretation of the regulatory 

definition of ‘‘emission data’’, that does 

not include all inputs to equations, be 

appropriate as a legal and policy matter? 

When commenting on this issue, please 

(i) provide a description of what the 

narrower interpretation should be, (ii) 

explain why the narrower interpretation 

would be reasonable as well as why it 

would be sufficient for purposes of Part 

98 and/or any other CAA programs, (iii) 

describe how it would fit within the 

regulatory definition, and (iv) discuss 

how it would be consistent with prior 

interpretations or implementation of 

that term 4 as well as the statutory goal 

behind the CAA section 114(c) 

language. More specifically, please 

suggest exactly what Part 98 data you 

think should be considered emission 

data, describe what Part 98 data you 

think should not be emission data and 

why (and whether such non-emission 

data are CBI and why), and clearly 

explain how a narrower definition of 

‘‘emission data’’ would be consistent 

with the ‘‘necessary to determine’’ clause 

in 40 CFR 2.301, as well as with the 

purpose behind the statutory language. 

EPA is also seeking comment on 

whether a broader interpretation of 

‘‘emission data’’ would be appropriate 

for Part 98 and asks that the same 

information discussed above be 

provided in any such comments (e.g., 

clear description of broader 

interpretation, explanation of what 

additional data should be considered to 

be ‘‘emission data’’, discussion of how 

the revised interpretation is consistent 

with the regulations and statute, etc.). 

D. Rationale for Making Confidentiality 

Determinations Through This Action 

In accordance with 40 CFR part 2, 

subpart B, EPA generally makes case-bycase confidentiality determinations on 

submitted data when an entity 

submitting data makes a claim of 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
39102 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

confidentiality. Under CAA section 

114(c), reporters can make 

confidentiality claims only for data that 

does not meet the definition of 

‘‘emission data’’ in 40 CFR 2.301(a)(2)(i). 

EPA considered case-by-case 

determinations for Part 98 data and 

concluded that case-by-case 

confidentiality determinations would 

likely result in significant delays in 

making Part 98 data available for use by 

the public and policy makers. With over 

1,500 individual data elements and 

more than 10,000 individual reporters, 

the amount of data to be reported under 

Part 98 is considerable. The data 

elements reported under the rule are 

detailed in nature, and many of them 

are likely to be considered sensitive by 

reporting industries. For each case-bycase determination, reporters would 

have to identify and claim specific 

reported data elements as confidential 

and provide written justification 

supporting their confidentiality claim. 

EPA would then need to evaluate each 

confidentiality claim individually to 

determine first whether the information 

is ‘‘emission data’’ under CAA section 

114(c) and thus required to be made 

available. If the data element is not 

emission data, EPA would next evaluate 

the data based on the criteria at 40 CFR 

2.208, including whether the 

information is already publicly available 

or obtainable without the business’s 

consent, whether the submitter has 

taken steps to protect the data, and 

whether releasing the data is likely to 

cause substantial harm to the business’s 

competitive position. This procedure 

would need to be done for each data 

element that each reporter claims is 

confidential. This would be extremely 

time consuming for the reporter who 

has to prepare the confidentiality claim. 

Further, considering the number of 

reporters and the amount of data to be 

reported under Part 98, EPA would 

likely receive a very large number of 

individual confidentiality claims for a 

wide variety of data elements. In light 

of the large volume of confidentiality 

claims EPA expects to receive and the 

time it would take to evaluate each 

confidentiality claim, EPA would not be 

able to make Part 98 data available to 

the public in a timely manner, which 

would impact the usefulness of the data 

to the public, State and local 

governments, and other stakeholders 

who need the data to assess and 

formulate GHG policies and programs. 

EPA also believes case-by-case 

determinations on an entity-specific 

basis would be unnecessarily 

burdensome for reporters. As mentioned 

above, reporters would have to identify 

and claim as confidential each data 

element, even if similar data (or same 

data from a previous year) have been 

previously submitted and claimed as 

confidential. The confidentiality claims 

for data submitted as part of the annual 

report would have to be reevaluated 

each year. As explained in greater detail 

in Section I.C of this preamble, EPA has 

grouped similar data elements into data 

categories and evaluated the data 

elements within each data category 

using the same criteria used to evaluate 

case-by-case confidentiality claims. We 

are proposing on category basis which 

data elements would or would not be 

entitled to confidential treatment. By 

making confidentiality determinations 

prior to data reporting through this 

proposal and rulemaking process, 

potential reporters are able to submit 

comments identifying data they 

consider sensitive and provide the 

rationales and supporting 

documentation they would otherwise 

submit for case-by-case confidentiality 

determinations. EPA will consider all 

comments received on this proposal and 

will evaluate claims of confidentiality 

before finalizing the proposed 

confidentiality determinations. 

In the development of this proposal, 

EPA evaluated the process that the 

Toxics Release Inventory (TRI) program 

uses to determine whether data 

elements are entitled to confidential 

treatment. Per Emergency Planning and 

Community Right to Know Act (EPCRA) 

regulations codified at 40 CFR part 350, 

only one data element, the specific 

chemical name, can be claimed as a 

trade secret. TRI reporters claiming the 

chemical name as a trade secret must 

check a box on the reporting form and 

also complete a justification form, 

which is evaluated on a case-by-case 

basis by EPA. Typically, less than 20 

TRI reporters in a year submit claims 

that the chemical name is a trade secret. 

Although the number of reporters in the 

TRI program (approximately 22,000) is 

on the same order of magnitude as the 

number of reporters under Part 98, EPA 

expects that the number of reporters 

requesting data be considered CBI, as 

well as the number of data elements 

reporters would request be considered 

CBI would be much higher under Part 

98. For the reasons stated above, EPA 

proposes to determine upfront the 

confidentiality status of Part 98 data. 

Although EPA has concluded that 

case-by-case determinations would 

result in a delay in the release of data, 

we are soliciting comment on whether 

(and if so, what) unique circumstances 

may arise for a reporting facility, after 

finalization of the confidentiality status 

of the Part 98 data, that would warrant 

the need for EPA to reconsider a final 

non-CBI determination applicable to 

certain Part 98 data from that facility. In 

providing your comments, please 

explain the types of unique 

circumstances that may arise, the types 

of Part 98 data elements that may be 

affected, and how such circumstances 

would qualify the affected Part 98 data 

as CBI. We further solicit comments on 

whether there should be a limited, less 

cumbersome process for reconsidering 

any of our final non-CBI determinations 

under those unique circumstances, what 

kind of process would facilitate such 

reconsideration, and how we limit such 

a process to only those cases that 

warrant such reconsideration. If 

respondents believe that such a process 

is necessary, please describe specifics of 

the proposed process as well as the 

appropriate criteria (e.g., the type of 

facility, the type of data, and the 

specific technical reason for release of 

the data, etc.) that would have to be met 

in order to enable the use of such a 

process. 

E. Proposed Rule Amendment 

Addressing Treatment of Part 98 Data 

Elements 

As previously discussed, pursuant to 

CAA section 114(c), EPA must make 

available to the public data submitted 

under Part 98, except for data (other 

than emission data) that are considered 

confidential under CAA section 114(c). 

Accordingly, EPA intends to release Part 

98 data after their submission to EPA in 

accordance with EPA’s determinations 

of their confidentiality status in a final 

rule. Specifically, EPA intends to 

release Part 98 data that are determined 

in the final rule to be emission data or 

not otherwise entitled to confidential 

treatment under CAA section 114(c) 

(i.e., ‘‘non-CBI’’). EPA intends to make 

much of such data available to the 

public through an EPA Web site. Data 

elements that we determine to be CBI 

under CAA section 114(c) would be 

published on the Web site only if they 

can be aggregated in a manner that 

would protect the confidentiality of 

these data elements (e.g., production 

data determined to be CBI that is 

aggregated by source category). 

40 CFR part 2, subpart B sets forth 

procedural steps that EPA must follow 

before releasing any information either 

on the Agency’s own initiative or in 

response to requests made pursuant to 

FOIA. In particular, EPA is generally 

required to make case-by-case 

confidentiality determinations and to 

notify individual reporting businesses 

before disclosing information that 

businesses have submitted with a 

confidentiality claim. As discussed in 

Section I.D of this preamble, in light of 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 39103 

5The only exception is supporting 

documentation provided by applicants for approval 

of alternative methods for adipic acid and nitric 

acid facilities. EPA recognizes that supporting 

documentation included in these applications may 

include information that is sensitive or proprietary, 

such as detailed process designs or site plans. 

Because the exact nature of this documentation 

cannot be predicted with certainty, EPA proposes 

to make case-by-case confidentiality determinations 

under CAA section 114(c) for any supporting 

documentation claimed confidential by applicants 

either upon receipt of such information or upon a 

request for such information after receipt. 

the voluminous data EPA will receive 

under Part 98 and the multiple 

procedural steps required under 40 CFR 

part 2, subpart B, EPA would not be able 

to make Part 98 data (determined to be 

emission data or non-CBI) publicly 

available in a timely fashion, i.e., in 

order to make such data informative to 

the public and/or useful to the State 

regulators and local governments in 

formulating their own GHG policies, if 

it were required to make separate CBI 

determinations based on each 

submitter’s individual claim of 

confidentiality. 

To facilitate timely release of GHG 

data collected under Part 98 that are 

emission data or non-CBI, EPA proposes 

to amend 40 CFR 2.301, Special rules 

governing certain information obtained 

under the Clean Air Act. The proposed 

amendments pertain only to Part 98. 

Under the proposed amendment, EPA 

may release Part 98 data that are 

determined to be emission data or nonCBI upon finalizing the confidentiality 

status of these data. Consistent with the 

40 CFR part 2 procedures, this 

rulemaking provides the reporting 

businesses an opportunity to justify any 

confidentiality claim they may have for 

the data they are required to submit 

(except for emission data which are not 

entitled to confidential treatment). In 

addition, businesses have the benefit of 

seeing EPA’s rationales and analyses 

prior to submitting any justification, 

information that they would not 

otherwise have under the current 40 

CFR part 2 procedures. EPA will 

consider comments received on this 

proposal before finalizing the 

confidentiality determinations. 

The proposed amendment also sets 

forth procedures for treatment of 

information in Part 98 determined to be 

CBI. The proposed procedures are 

similar to or consistent with the existing 

40 CFR part 2 procedures. 

EPA solicits comment on the 

proposed amendments to 40 CFR 2.301, 

Special rules governing certain 

information obtained under the CAA. 

F. Other Relevant Background 

This section briefly describes existing 

policies and practices regarding 

‘‘emission data’’ and the release of data 

obtained under CAA section 114. 

February 21, 1991 notice of policy on 

public release of certain data elements 

submitted under CAA sections 110 and 

114. In a 1991 EPA notice of policy (35 

FR 7042, February 21, 1991), EPA stated 

that certain data fields constitute 

‘‘emission data’’ and therefore cannot be 

withheld as confidential. The 1991 

notice indicated that while 

confidentiality determinations are 

typically made on a case-by-case basis, 

some kinds of data will always 

constitute emission data within the 

meaning of CAA section 114(c). The 

notice listed several data fields that are 

to be considered emission data 

including facility identification data 

(e.g., facility name; address; ownership; 

Standard Industrial Classification (SIC); 

emission point, device or operation 

description information) and emission 

parameters (e.g., compounds emitted; 

origin of emissions; emission rate, 

concentration, release parameters, boiler 

or process design capacity, emission 

estimation method). The notice clarified 

that the list in the notice was not 

exhaustive and that other data might be 

found, in a proper case, to constitute 

emission data. 

The National Emissions Inventory 

(NEI) is EPA’s compilation of estimates 

of air pollutants discharged on an 

annual basis and their sources. The 

compilation includes emissions 

estimates submitted by State, Local and 

Tribal air pollution control agencies, 

estimates calculated by EPA, and 

emissions obtained from other sources. 

NEI does not collect data directly from 

facilities; rather it gets facility-level data 

from the States. Based on the 1991 

notice, NEI considers everything they 

receive to be emission data, and 

therefore publishes all of the 

information that it receives. 

Many of the data elements under Part 

98 are the same as or similar to the data 

fields listed in the 1991 notice as 

‘‘emission data’’. However, there are 

many data elements under Part 98 that 

are not addressed in EPA’s 1991 notice. 

As described above, today’s action 

addresses all data elements reported 

under Part 98.5

Acid Rain Program. The Acid Rain 

program releases to the public data 

similar to the data collected under Part 

98. Under the Acid Rain program, 

facilities are required to submit 

quarterly reports that contain data on 

CO2 emissions, as well as the data used 

to identify emission units and calculate 

the CO2 emissions. For the Acid Rain 

program, the CO2 emissions are 

determined using either Continuous 

Emissions Monitoring Systems (CEMS) 

or alternative methods specified in the 

rule (e.g., 40 CFR part 75, appendix G 

methods and the method used to 

calculate CO2 emissions by facilities 

with low mass emissions). 

Data submitted to the Acid Rain 

program include facility identification 

information, CO2 mass emission data, 

data elements used to calculate annual 

CO2 emissions, combustion unit 

characteristics, and measurement 

methodologies (e.g., hourly load, 

operating time, hourly heat input rate, 

unit output or steam load, fuel type, fuel 

quantity, fuel heating value, control 

status of the unit, methods used to 

measure or calculate CO2 emissions or 

other parameters such as fuel flow and 

heat input). These are posted for the 

public on EPA’s Acid Rain Web site 

(http://www.epa.gov/acidrain). 

The Acid Rain program allows 

facilities to make confidentiality claims 

for data that are not ‘‘emission data’’ (see 

40 CFR 75.60(c)). Although facilities 

subject to the Acid Rain program are 

allowed to assert claims of data 

confidentiality for data that are not 

emission data, to date no such 

representations have been received and 

all of the data submitted to EPA are 

made available to the public. 

In the Acid Rain program, public 

release of these data ensures 

transparency and public confidence in 

the program. Since many of the data 

fields required by the Acid Rain 

program are the same or similar to the 

data elements to be reported by directemitting facilities subject to Part 98, 

EPA finds that public release of Part 98 

data that are emission data or non-CBI 

would likewise ensure transparency and 

promote public confidence in the 

accuracy and completeness of the data 

reported under Part 98. However, EPA 

recognizes that Part 98 differs from the 

Acid Rain Program in the scope of 

industries required to report. For 

example, EPA recognizes that electricity 

producers may be inherently less 

concerned about the disclosure of 

reported data than other industries 

reporting under Part 98 because they are 

publicly regulated utilities and detailed 

data on their process, production, and 

pricing structure are already in the 

public domain. Therefore, EPA is 

proposing to determine that some data 

elements reported under Part 98 remain 

CBI (e.g., production data reported by 

industrial facilities in cases where 

production data is not needed to 

calculate GHG emissions) even though 

similar data elements for the utility 

industry are publicly available. 


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39104 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

G. Public Comments on the Proposed 

Mandatory GHG Reporting Rule 

In response to the April 10, 2009 

proposed rule (74 FR 16448), EPA 

received a number of comments on 

whether data collected under Part 98 

should be afforded confidential 

treatment. Comments on this topic were 

received from a wide range of interested 

parties, including industry, State and 

local governments, private citizens, 

environmental organizations, and other 

nongovernment organizations. The 

comments received can be classified 

into two broad categories: those 

supporting the release of as much data 

as possible; and those opposed to 

releasing one or more of the reported 

data elements. A summary of the 

comments is provided in this section of 

the preamble. For additional 

information, see the memorandum 

‘‘Summary of Comments on the Release 

of Reported Data Submitted in Response 

to EPA’s Request for Comments on the 

Proposed Mandatory Greenhouse Gas 

Reporting Rule’’ Published April 10, 

2009 in Docket EPA–HQ–OAR–2009– 

0924. 

EPA is not responding further to 

public comments related to the 

confidentiality of data elements 

received on the proposed GHG reporting 

rule. Today’s action proposes 

confidentiality determinations and 

solicits additional public comments. 

Public comments received will be 

addressed in the final action and 

associated response to comments 

documents. 

Comments Supporting Release of 

Reported Data. States, local government, 

environmental groups, and private 

citizens generally supported the release 

of reported data. Many commenters 

stated that reported data should be 

made broadly available to the public 

and other government agencies 

(including State and local government). 

Some argued that all of the information 

gathered under Part 98 should be 

‘‘emission data’’ and hence not entitled 

to confidential treatment. Many 

commenters cited strong public interest 

in both the emissions and verification 

data as their reason for recommending 

the broad dissemination of data. Some 

commenters also stated that making the 

data broadly available would be 

consistent with the President’s and EPA 

Administrator’s commitment to 

transparency and public access to 

government information. Several 

commenters stated that release of 

detailed emission data would be useful 

to State regulators and local 

governments because the data would 

inform future policies and assist with 

the implementation GHG emission 

reduction plans. Some commenters also 

noted that the release of emission data 

would be consistent with other 

programs, such as the Acid Rain 

program and the European Union 

Emissions Trading System. 

Comments Opposing the Release of 

Reported Data. Many businesses and 

industry organizations opposed making 

the reported data broadly available to 

the public. Several expressed concern 

that Part 98 did not address the 

confidentiality of the reported data. 

Many commenters submitted general 

statements that confidential data should 

not be made public but did not specify 

which data elements should be afforded 

confidential treatment. Some 

commenters identified specific data 

elements that they considered 

confidential but did not explain why 

such data elements should be 

considered confidential. Some 

commenters explained in more detail 

their confidentiality claims. These 

comments are summarized below. 

Some commenters argued that 

detailed process-related information, 

such as production throughputs, 

product characteristics, operating hours, 

raw material consumption, fuel usage, 

and unit descriptions, should be 

protected as confidential because its 

release would reveal information on 

energy usage, raw materials, product 

chemistry, production efficiency, and 

other information that would infringe 

on business confidentiality. These 

commenters argued that disclosing 

annual production and raw material 

quantities could reveal operational 

strengths and weaknesses, and could be 

used to deduce pricing structures. 

Several commenters also recommended 

that unit or process level emission data 

should be afforded confidential 

treatment because this data may be used 

in certain instances to determine other 

proprietary information about a facility, 

such as production or output rates, 

capacity, utilization rates, process 

efficiency, and the information on the 

type or design of a process. Other 

commenters argued that only facilitylevel emission data should be released 

and that all other data was entitled to 

confidential treatment because they did 

not view it as ‘‘emission data’’ as defined 

in 40 CFR part 2. 

Several commenters were in favor of 

classifying supplier data, in particular 

product quantities and characteristics, 

as confidential. One commenter noted 

that public disclosure of production 

quantities and product characteristics 

would divulge sensitive information 

related to marketing and distribution of 

products, as well as competitive 

strategies of a company. Another 

commenter claimed that public 

disclosure of supplier data may prevent 

off-shore suppliers and customers from 

doing business with U.S.-based 

companies if sensitive information were 

not held to be confidential. 

As mentioned above, EPA stated in 

the preamble to the final rule that it 

would determine the confidentiality 

status of the data elements to be 

collected under Part 98 through a notice 

and comment process. Today’s action 

proposes for public comment 

confidentiality determinations to be 

made for data elements that are codified 

in Part 98. Today’s action also includes 

an amendment to 40 CFR 2.301 to 

clarify the procedures for the treatment 

of Part 98 data in accordance with the 

final confidentiality determination of 

such data. 

II. Proposed Emission Data and 

Confidentiality Determinations for Data 

Required by the Mandatory GHG 

Reporting Rule in Part 98 

A. Overview 

This action describes the 22 data 

categories EPA has developed for all of 

the data to be reported under Part 98 

and EPA’s proposed determination by 

category. As mentioned in previous 

sections of this preamble, because Part 

98 has over 1,500 data elements and has 

several different subparts with similar 

types of data elements, EPA grouped 

similar data elements together into data 

categories, with 11 distinct data 

categories for the direct emitter source 

categories and 11 for supplier source 

categories. The data elements within a 

given data category are similar from a 

technical standpoint, with some 

exceptions explained in the descriptions 

of each data category in Sections II.C 

and II.D of this preamble. A list of all 

the data elements assigned to each 

category is provided in a memorandum 

(see Memorandum ‘‘Data Category 

Assignments for Reporting Elements’’ in 

Docket EPA–HQ–OAR–2009–0924 and 

the Web site (http://www.epa.gov/ 

climatechange/emissions/ 

ghgrulemaking.html). For the 

explanation of the approach taken by 

EPA to determine which data elements 

within each data category are entitled to 

confidential treatment, see Section I.C of 

this preamble. 

In addition to reporting facility GHG 

emissions (or supplier GHG quantities 

that would or could potentially be 

emitted when the products they supply 

are used), Part 98 requires reporting of 

a wide range of other facility and 

process-specific data. Most of this data 

are required primarily to enable 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 39105 

6For example, in a 1991 Federal Register notice, 

EPA described certain information that it would 

consider emission data under CAA section 114 (56 

FR 7042, February 21, 1991). 

emissions verification. The information 

is also needed to support analysis of 

GHG emissions for future CAA policy 

and program development, including 

programs that could affect direct 

emitters or suppliers. For example, the 

required information would be helpful 

to policy makers in understanding the 

specific sources of emissions and the 

amounts emitted by each unit/process. 

The information is also important for 

understanding the effect of different 

processes, fuels, and feedstocks on 

emissions. 

B. Request for Comments 

Today’s action provides affected 

businesses subject to Part 98, other 

stakeholders, and the general public an 

opportunity to provide comment on the 

proposed confidentiality determination 

of Part 98 data and the proposed 

amendment to 40 CFR 2.301. In addition 

to soliciting comment on our proposed 

amendments to 40 CFR 2.301 and 

proposed confidentiality designations, 

we are also soliciting comment on the 

following specific issues relevant to the 

proposed confidentiality 

determinations: 

Data Categories. As discussed above, 

EPA has categorized individual data 

elements into 22 data categories (i.e., 11 

for direct emitters and 11 for suppliers) 

and has made confidentiality 

determinations for each data category. 

While we consider this approach to be 

reasonable given the number of data 

elements and the technical similarity 

among data elements across subparts, 

EPA is interested in stakeholder views 

on this approach. In particular, EPA is 

soliciting comment on whether 

grouping data elements into data 

categories, and making a confidentiality 

determination by data category is a 

reasonable approach and whether the 

proposed data categories are sufficient 

for this purpose. Specifically, we 

request comments on whether the 22 

data categories described in this action 

are appropriately delineated and 

whether the data elements within each 

category are sufficiently similar to allow 

confidentiality determinations to be 

made on a data category basis, or 

whether some data categories should be 

combined or broadened. In commenting 

on these topics, please identify the 

specific data categories that should be 

narrowed or broadened, provide 

suggestions for how this might be done, 

and provide specific reasons and 

examples of why such an approach is 

necessary. 

Recognizing that transparency is a key 

priority, we are also requesting 

comments on whether it may be 

necessary to make source categoryspecific confidentiality determinations 

within any of the proposed data 

categories. This would allow either a 

narrower or broader release of the data 

depending on the source category in 

order to enable the release of as much 

data as possible. Each of the data 

categories discussed in this action 

contains data elements from multiple 

source categories (subparts). For most 

data categories, a single confidentiality 

determination is proposed for the entire 

data category. However, for some of the 

supplier data categories (i.e., the GHGs 

Reported Category, the Production 

Throughput Quantities and 

Composition Data Category, and the 

Unit/Process Operating Characteristics 

Category), we are proposing to 

determine that some data elements 

within a data category are entitled to 

confidential treatment and others within 

the same category are not. For example, 

in the supplier data category for 

Production and Throughput Data, EPA 

is proposing that throughput data 

reported by NGL fractionators would be 

entitled to confidential treatment, but 

throughput data reported by Local 

Distribution Companies (LDCs) would 

not be entitled to confidential treatment 

because this data is already publicly 

available. We are soliciting comments 

on whether, for any other data 

categories, there are unique 

circumstances within particular source 

categories (rule subparts) that would 

warrant making subpart-specific 

confidentiality determinations within 

categories beyond what is proposed in 

this action. If so, please explain what 

specific technical, economic, or market 

considerations within a particular 

source category (e.g., within a particular 

industry) warrant a source category (rule 

subpart) specific decision on 

confidentiality. 

As discussed in Section I.D of this 

preamble, we are also soliciting 

comment on whether (and if so, what) 

unique circumstances may arise for a 

reporting facility, after finalization of 

the confidentiality status of the Part 98 

data, that would warrant the need for 

EPA to reconsider a final non-CBI 

determination applicable to certain Part 

98 data from that facility. In providing 

your comments, please explain the 

types of unique circumstances that may 

arise, the types of Part 98 data elements 

that may be affected, and how such 

circumstances would qualify the 

affected Part 98 data as CBI. We further 

solicit comments on whether there 

should be a limited, less cumbersome 

process for reconsidering any of our 

final non-CBI determinations under 

those unique circumstances, what kind 

of process would facilitate such 

reconsideration, and how we limit such 

a process to only those cases that 

warrant such reconsideration. If 

respondents believe that such a process 

is necessary, please describe specifics of 

the proposed process as well as the 

appropriate criteria (e.g., the type of 

facility, the type of data, and the 

specific technical reason for release of 

the data, etc.) that would have to be met 

in order to enable the use of such a 

process. 

‘‘Emission Data’’ Determination. As 

previously discussed in Section I.C of 

this preamble, EPA proposes to 

determine as ‘‘emission data’’ data 

required to perform the emissions 

calculations for direct emitters specified 

in Part 98 because these inputs to GHG 

emission equations are ‘‘necessary to 

determine the identity, amount * * *’’ 

of emissions and are therefore ‘‘emission 

data’’ under the meaning of 40 CFR 

2.301(a)(2)(i). The Inputs to Emission 

Equations Category for direct emitters 

includes all data elements that are 

inputs to equations; and for some source 

categories this includes data such as 

production and raw material quantities 

and compositions that may be 

considered sensitive by businesses. (See 

Section II.C of this preamble for a 

description of the Inputs to Emission 

Equations data category.) As previously 

discussed, ‘‘emission data’’ cannot be 

kept confidential per CAA section 114. 

EPA is seeking comment generally on 

its proposed interpretation of the term 

‘‘emission data’’, to include data that are 

required to perform emission 

calculations specified in the direct 

emitter subparts, as used in the statute 

and as defined in EPA’s regulations at 

40 CFR 2.301. For example, would a 

narrower interpretation of the regulatory 

definition of ‘‘emission data’’, that does 

not include all inputs to equations, be 

appropriate as a legal and policy matter? 

When commenting on this issue, please 

(i) provide a description of what the 

narrower interpretation should be, (ii) 

explain why the narrower interpretation 

would be reasonable as well as why it 

would be sufficient for purposes of Part 

98 and/or any other CAA programs, (iii) 

describe how it would fit within the 

regulatory definition, and (iv) discuss 

how it would be consistent with prior 

interpretations or implementation of 

that term 6 as well as the statutory goal 

behind the CAA section 114(c) 

language. More specifically, please 

specify exactly what Part 98 data you 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
39106 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

7Leakage is defined in proposed subpart RR as 

the movement of CO2 from the injection zone to the 

surface (for example to the atmosphere, indoor air, 

oceans or surface water) (see 75 FR 18576, April 12, 

2010). 

8EPA recognizes that supporting documentation 

included in applications for approval of alternative 

methods from adipic acid and nitric acid producers 

may include information that is sensitive or 

proprietary, such as detailed process designs or site 

plans. Because the exact nature of this 

documentation cannot be predicted with certainty, 

EPA proposes to make case-by-case confidentiality 

determinations under CAA section 114(c) for any 

supporting documentation claimed confidential by 

applicants either upon receipt of such information 

or upon a request for such information after receipt. 

think should be considered emission 

data, describe what Part 98 data you 

think should not be emission data and 

why (and whether such non-emission 

data are CBI and why), and clearly 

explain how a narrower definition of 

‘‘emission data’’ would be consistent 

with the ‘‘necessary to determine’’ clause 

in 40 CFR 2.301, as well as with the 

purpose behind the statutory language. 

EPA is also seeking comment on 

whether a broader interpretation of 

‘‘emission data’’ would be appropriate 

for Part 98 and asks that the same 

information discussed above be 

provided in any such comments (e.g., 

clear description of broader 

interpretation, explanation of what 

additional data should be considered to 

be ‘‘emission data’’, discussion of how 

the revised interpretation is consistent 

with the regulations and statute, etc). 

Delay Release of Emission Data and 

Data Not Entitled To Confidential 

Treatment. Under Part 98, reports are 

due by March 31st for the previous 

year’s data. The Agency considered 

options of delaying release of some data 

for a given period of time (e.g., one to 

three years rather than releasing 

immediately after verification) as a 

means to address potential industry 

concerns over release of data. One 

option EPA considered is delaying the 

publication (i.e., posting on the Web 

site) of some data elements that are 

proposed in this action to be released. 

Recognizing that the Inputs to Emission 

Equations Data Category may contain 

data elements that are considered 

sensitive by many businesses (see 

Section II.C of this preamble for a 

description of the data elements 

included in this data category), EPA 

considered whether delaying 

publication of the data in this and 

possibly other data categories by a given 

time period would ease businesses’ 

concerns regarding the release of this 

data. (The data might be less sensitive 

and less likely to cause harm if it were 

to be released at a later date, when it 

would be less current). However, even 

if EPA does not automatically release 

Part 98 data that are determined to be 

emission data or non-CBI but are 

nonetheless considered by the 

businesses to be sensitive data, that data 

would still be subject to FOIA request. 

Therefore, per FOIA regulations and 

consistent with EPA’s final 

confidentiality determination, emission 

data and non-CBI would be released. 

For the reason stated above, EPA 

believes that this option does not 

resolve the industry’s concern and only 

unnecessarily delays release of 

information that must be made public 

pursuant to CAA section 114(c). 

EPA also considered delaying the 

final confidentiality determination by 

one year. However, as in the previous 

scenario, EPA would still be subject to 

FOIA requests during the one year 

period before issuing the final 

confidentiality determination. Once the 

case-by-case decisions are made through 

the FOIA process, data that are 

determined to be not entitled to 

confidential treatment would be 

released pursuant to EPA’s CBI 

regulations. Given the number of data 

elements and reporters covered by Part 

98, the intent of this proposed action is 

to avoid these case-by-base decisions. In 

addition, this approach would have no 

effect on data submitted in the years 

subsequent to the first year of reporting. 

For these reasons, EPA concluded that 

delaying publication of potentially 

sensitive data or delaying our final 

confidentiality determination would not 

ease businesses’ concerns regarding the 

release of reported data. While we 

believe that neither of these approaches 

is a viable option, EPA solicits comment 

on whether delaying publication of 

certain data elements would ease 

business concerns and whether there are 

any alternative approaches that would 

allay such concerns while enabling us to 

meet our obligations under FOIA and 

CAA. 

Duration of Confidentiality 

Treatment. In the interest of 

transparency and consistency with the 

practice of other EPA programs’ release 

of all data (e.g., Acid Rain Program), 

EPA solicits comment on whether, for 

data reporting elements that are 

proposed today to be entitled to 

confidential treatment, the confidential 

treatment of such data should be time 

limited (i.e., whether these items could 

be released without causing substantial 

harm to business after a certain period 

of time). If stakeholders believe that data 

elements that are proposed to be 

entitled to confidential treatment could 

eventually be released without causing 

substantial harm to business, please 

specify which data elements fall into 

this group, the amount of time delay 

that would be required prior to release, 

and the reason for the change in the 

proprietary nature of the data element. 

C. Direct Emitting Facilities 

Direct emitting facilities are those 

facilities subject to Part 98 that directly 

emit GHGs to the atmosphere. They 

include stationary fuel combustion 

sources that meet the criteria in 40 CFR 

98.2(a)(3)) and facilities containing any 

of the source categories listed in 40 CFR 

98.2(a)(1) and (a)(2) (including source 

categories proposed on April 12, 2010). 

This section of the preamble covers all 

of the data elements required to be 

reported for these source categories 

(subparts) and certain data elements in 

proposed amendments to Part 98. This 

section also covers certain data elements 

from proposed 40 CFR part 98, subpart 

RR (Injection and Geological 

Sequestration of CO2) that are related to 

emissions to the atmosphere from 

reporting facilities (i.e., emissions from 

surface equipment and from the leakage 

of CO2 from geologic sequestration7). All 

remaining data elements for 40 CFR part 

98, subpart RR are covered in Section 

II.D of this preamble because they are 

not related to direct emissions. 

In addition to data elements reported 

in the annual GHG reports, this section 

includes data elements in applications 

from adipic acid and nitric acid 

producers for approval of alternative 

methods (excluding supporting 

documentation 8) and BAMM extension 

requests. EPA has categorized each data 

element into one of 11 data categories. 

This section describes the data elements 

within each of the 11 data categories 

and proposes whether the data in each 

category will be treated as confidential. 

1. Data Categories 

The data categories for ‘‘direct 

emitting’’ facilities are as follows and are 

further described in Sections II.C.2 

through II.C.12 of this preamble: 

• Facility and unit identifier 

information. 

• Emissions. 

• Inputs to emission equations. 

• Calculation methodology and 

methodological tier. 

• Data elements reported for periods 

of missing data that are not inputs to 

emission equations). 

• Unit/process ‘‘static’’ characteristics 

that are not inputs to emission 

equations. 

• Unit/process operating 

characteristics that are not inputs to 

emission equations. 

• Test and calibration methods. 

• Production/throughput data that are 

not inputs to emission equations. 

• Raw materials consumed that are 

not inputs to emission equations. 


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Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 39107 

• Process-Specific and Vendor Data 

Submitted in BAMM Extension 

Requests. 

Sections II.C.2 through II.C.12 of this 

preamble describe the proposed 

determination for each of the 11 data 

categories for direct emitting facilities 

and provide the rationale for EPA’s 

proposed determination. A list of all the 

data elements assigned to each category 

is provided in a memorandum (see 

Memorandum ‘‘Data Category 

Assignments for Reporting Elements to 

be Reported under 40 CFR Part 98 and 

its Amendments’’ in Docket EPA–HQ– 

OAR–2009–0924 and the Web site 

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

emissions/CBI.html. 

2. The Facility and Unit Identifier 

Information Category 

EPA proposes to determine that 

facility and unit identifiers are 

‘‘emission data’’ under 40 CFR 

2.301(a)(2)(i). 

Description of data elements. Part 98 

requires sources to report information 

needed to identify each facility and 

emission unit subject to reporting. 

Facility identifying information must be 

reported by all facilities as specified in 

40 CFR part 98, subpart A. Unit-specific 

identifying information is reported if 

required by an applicable source 

category subpart. Unit-specific 

identifying information is required in 

those subparts that require emissions to 

be calculated on a unit-by-unit basis. 

For these source categories, unit-specific 

data are needed to calculate emissions 

using the procedures in Part 98, so the 

unit associated with the emissions must 

be identified. 

Data elements in this category include 

the following data elements required 

under 40 CFR part 98, subpart A to be 

included in each annual report: Facility 

name and physical street address, 

including the city, State, and zip code; 

the year and months covered by the 

report; the date of submittal of the 

report; and a signed and dated 

certification statement of the accuracy 

and completeness of the report, which 

is provided by the designated 

representative of the owner or operator. 

Also included are data elements from 

the proposed amendments to the 

reporting requirements in 40 CFR part 

98, subpart A (75 FR 18455, April 12, 

2010). These data elements include: 

U.S. parent company(s), percentage 

ownership of each parent company, and 

all applicable NAICS codes. 

The data elements in this category 

also include the information required by 

individual subparts of Part 98 for 

identifying each emission unit for 

which emissions must be reported, 

including, an emission unit or group 

identification number and the type of 

unit (e.g., cement kiln, electric arc 

furnace, glass production furnace, lead 

smelting furnace, engine, turbine, boiler, 

process heater). 

This data category also includes 

facility and unit identification 

information submitted to EPA in 

applications from adipic acid and nitric 

acid facilities for approval of alternative 

methods (applicable to 40 CFR part 98, 

subparts E and V only) and BAMM 

extension requests. These data elements 

include: The facility name and physical 

address; identification numbers for 

emission units, common exhaust stacks, 

and common pipelines; number and 

type of units; and descriptions of 

monitoring equipment. 

Rationale for Proposed 

Determination. As discussed in Section 

I.C of this preamble, emission data must 

be available to the public and is not 

entitled to confidential treatment under 

CAA section 114(c). ‘‘Emission data’’ is 

defined in 40 CFR 2.301(a)(2)(i)(A) to 

include, among other things, 

‘‘information necessary to determine the 

identity, amount, frequency, 

concentration, or other characteristics 

(to the extent related to air quality) of 

any emission which has been emitted by 

the source* * *’’ EPA considers the 

term ‘‘identity * * * of any emission’’ as 

not simply referring only to the names 

of the pollutants being emitted, but to 

also include other identifying 

information, such as from what and 

where (e.g., the identity of the emission 

unit) the pollutants are being emitted. 

Further, 40 CFR 2.301(a)(2)(i)(C) 

specifies that emission data includes 

‘‘[a] general description of the location 

and/or nature of the source to the extent 

necessary to identify the source and to 

distinguish it from other sources* * *’’. 

Consistent with the definition of 

emission data described above, EPA 

considers facility and emission unit 

identifiers to be source information or 

‘‘information necessary to determine the 

identity * * * of any emission which 

has been emitted by the source,’’ and 

therefore emission data under 40 CFR 

2.301(a)(2)(i). 

The 1991 EPA notice of policy 

(discussed in Section I.F of this 

preamble) provided a list of data fields 

that EPA considered to be emission 

data. For example, in the 1991 notice, 

EPA considered that plant name, 

address, city, State, zip code, emission 

point or device description, SIC code, 

and Source Classification Code (SCC) 

are emission data. Therefore, the public 

has been on notice that EPA considers 

many of the data elements in this data 

category to be emission data and thus 

not entitled to confidential treatment. 

The 1991 notice also makes clear that 

the list of data is not comprehensive and 

that other data might be found to 

constitute emission data. 

Summary. EPA is proposing to 

determine that data elements in the 

Facility and Unit Identifier Information 

Category are ‘‘emission data’’ as defined 

in 40 CFR 2.301(a)(2)(i). Under CAA 

section 114(c), emission data cannot be 

held confidential and must be available 

to the public. EPA solicits comments on 

this proposed determination, including 

whether the data category determination 

is appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

3. The Emissions Category 

EPA proposes to determine that the 

GHG emissions to be reported by direct 

emitters are ‘‘emission data’’ under 40 

CFR 2.301(a)(2)(i). 

Description of data elements. Data 

elements included in this data category 

are the GHG emissions to be reported by 

direct emitters under Part 98. Under 40 

CFR part 98, subpart A, all direct 

emitters must report annual CO2e 

emissions and must also report 

emissions by GHG and source category. 

In addition, certain direct emitters are 

required to report GHG emissions in 

more detail as specified in the 

applicable source categories subparts in 

Part 98. Each of these subparts lists the 

specific GHGs to be reported for a 

particular source category and whether 

facility emissions are reported only at 

the source-category level or separately 

for each process, manufacturing line, or 

emission unit within a source category. 

In general, emissions are reported at the 

same level of detail in which they are 

calculated or measured. If emissions are 

calculated or measured for individual 

emission units, they are also reported 

for individual units. In some cases, 

emissions are calculated or measured, 

and reported, for a group of units that 

share a common fuel supply line or a 

common stack. For some source 

categories, facilities calculate and report 

only their total emissions from the 

source category based on an overall 

mass balance, rather than calculating 

and reporting emissions by process line 

or unit. 

Provided below are some examples of 

the data elements in the Emissions 

Category: 

• CO2, CH4, and N2O emissions from 

each stationary combustion unit (40 

CFR part 98, subpart C). 

• Process N2O emissions from adipic 

acid production (40 CFR part 98, 

subpart E). 


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• Process CO2 and N2O emissions 

from each electric arc furnace at a 

ferroalloy production facility (40 CFR 

part 98, subpart K). 

• Process CO2 emissions from each 

glass furnace and all furnaces combined 

at a glass manufacturing facility (40 CFR 

part 98, subpart N). 

• Process CO2 emissions from each 

soda ash manufacturing line at soda ash 

manufacturing plants (40 CFR part 98, 

subpart CC). 

For each facility, GHG emissions are 

reported at the facility level, the subpart 

level, and, in many cases, the emission 

unit or process level. For example, 

petroleum refineries will report GHG 

emissions under 40 CFR part 98, subpart 

A and under 40 CFR part 98, subpart Y 

at the following separate levels: 

• Annual CO2e emissions (excluding 

biogenic CO2) aggregated for all GHG 

from all applicable source categories 

(i.e., one value for the whole facility). 

• Annual emissions of biogenic CO2

aggregated for all applicable source 

categories (i.e., one value for the whole 

facility). 

• CO2, CH4, and N2O coke burn-off 

emissions from each catalytic cracking 

unit, fluid coking unit, and catalytic 

reforming unit. 

• CO2 emissions from sour gas sent 

off site for sulfur recovery operations. 

• CO2 process emissions from each 

on-site sulfur recovery plant. 

• CO2, CH4, and N2O emissions from 

each coke calcining unit. 

• CO2 and CH4 emissions from 

asphalt blowing operations. 

• CH4 emissions from equipment 

leaks, storage tanks, loading operations, 

delayed coking units, and uncontrolled 

blowdown systems. 

• CO2, CH4, and N2O emissions from 

each process vent not specifically 

covered above. 

• CO2 and CH4 emissions from nonmerchant hydrogen production. 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the emissions at each 

reporting level constitute ‘‘emission 

data.’’ ‘‘Emission data’’ is defined in 40 

CFR 2.301(a)(2) as ‘‘information 

necessary to determine the identity, 

amount, frequency, concentration, 

* * * of any emission which has been 

emitted by the source * * * ’’. As 

described above, the data elements in 

this category consist of all emissions to 

be reported under Part 98. These data 

elements are clearly information 

regarding the identity, amount, and 

frequency of any emission emitted by 

the reporting direct emitters and, 

therefore, they are ‘‘emission data.’’ 

As described above, EPA proposes 

that all emissions reported by direct 

emitters under Part 98, including 

emissions of each GHG at the levels 

required by the applicable rule subparts 

(e.g., facility-level; by source category; 

and by process, process line, or unit), 

are ‘‘emission data.’’ Facilities are also 

required to report GHG emissions in 

terms of CO2e, which is also part of this 

data category, and is considered to be 

emission data. For those source 

categories where the methodology 

requires emissions to be calculated at a 

process line or unit level, the calculated 

emissions for each process line or unit 

are the identity and quantity emitted by 

the source and are ‘‘emission data’’ 

within the meaning of 40 CFR 

2.301(a)(2). Likewise, emissions broken 

out by GHG are needed to determine the 

‘‘identity’’ of the emissions and to 

calculate CO2e. In summary, all reported 

emissions are ‘‘emission data.’’ 

As discussed in Section I.F of this 

preamble, in the 1991 EPA notice of 

policy (35 FR 7042, February 21, 1991), 

EPA identified, without attempting to be 

comprehensive, data elements that EPA 

considered to constitute emission data. 

The 1991 notice lists the ‘‘Emission type 

(e.g., the nature of emissions, such as 

CO2, particulate or a specific toxic 

compound, and origin of emissions such 

as process vents, storage tanks or 

equipment leaks)’’ and ‘‘Emission rate 

(e.g., the amount released to the 

atmosphere over time such as kg/yr or 

lbs/yr)’’ as data that are not entitled to 

confidential treatment and are, 

therefore, releasable to the public. Our 

proposed determination for this data 

category is consistent with the 1991 

notice, which considers that identity 

(e.g., CO2, N2O, SF6) and emission rate 

(i.e., the amount emitted during a 

specified time period) are emission data 

and not entitled to confidential 

treatment. 

Summary. EPA proposes to determine 

that the data elements in the Emissions 

Category are ‘‘emission data’’ as that 

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

EPA solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

4. The Inputs to Emission Equations 

Category 

EPA proposes to determine that data 

elements in the Inputs to Emission 

Equations Category are ‘‘emission data’’ 

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

Description of data elements. The 

data elements in this category consist of 

inputs to the equations specified in Part 

98 for calculating emissions to be 

reported by direct emitters. Part 98 

requires direct emitters to calculate 

annual mass emissions (metric tons per 

year) for each GHG. Specific calculation 

methods are contained in each direct 

emitting source category subpart. 

Data elements included in this 

category are inputs to the emission 

equations used by the reporting direct 

emitting sources to calculate their 

annual GHG emissions under Part 98. 

Each subpart specifies the equations 

that must be used to calculate GHG 

emissions and the inputs to the 

equations that must be reported for a 

particular source category. Many of 

these subparts provide more than one 

calculation method for a process or unit 

and allow reporting facilities to select 

their preferred method from those 

provided. Therefore, the specific data 

elements to be reported depend on the 

source category and on the calculation 

method chosen. 

All reported data elements that are 

inputs to a GHG emission calculation 

equation used by the reporting facilities 

are assigned to this category. 

Accordingly, this data category includes 

data elements such as raw materials 

consumed, unit/process characteristics, 

and production/throughput data that are 

used by a reporting facility as inputs to 

an emission equation. As discussed in 

Section II.C.1 of this preamble, there are 

separate data categories for raw 

materials consumed, unit/process 

characteristics, and production/ 

throughput data that are not inputs to 

equations (either because they are not 

part of any emission calculation 

equations provided in Part 98 or the 

reporting facility chooses to use another 

calculation method that does not use 

these data as inputs). 

Examples of data elements in the 

Input to Emissions Equations Category 

include the following: 

• Fuel information used by reporting 

facilities as inputs to emissions 

equations, such as mass or volume of 

fuel combusted (per year), fuel type, 

molecular weight of gaseous fuels, high 

heat value, and quantity of biomass 

consumed (40 CFR part 98, subpart C). 

• Control device information used by 

reporting facilities as inputs to 

emissions equations, such as the 

destruction efficiency (40 CFR part 98, 

subparts E and V), sorbent used in the 

reporting year (40 CFR part 98, subpart 

C), and abatement utilization factor (40 

CFR part 98, subparts E and V). 

• Production/throughput and raw 

material consumption information used 

by reporting facilities as inputs to 

emissions equations, including volume 

or mass of feedstock for source 

categories such as ammonia 

manufacturing (40 CFR part 98, subpart 


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9 40 CFR 98.3(e) allows a reporter to switch 

methods during the reporting year as long as they 

document the date and reason for the change in 

their annual report. 

G), hydrogen production (40 CFR part 

98, subpart P), and petrochemical 

production (40 CFR part 98, subpart X); 

and volume or mass of product 

produced for source categories such as 

ferroalloy (40 CFR part 98, subpart K), 

lead (40 CFR part 98, subpart R), and 

zinc production (40 CFR part 98, 

subpart GG). 

• Characteristics of raw materials, 

products, and by-products used by 

reporting facilities as inputs to 

emissions equations, such as the carbon 

content of petroleum coke used in 

silicon carbide production(40 CFR part 

98, subpart BB), inorganic carbon 

content of trona or soda ash for soda ash 

manufacturing (40 CFR part 98, subpart 

CC), molecular weight of sorbent (40 

CFR part 98, subpart C), molecular 

weight of raw materials (40 CFR part 98, 

subparts G and X), Calcium oxide and 

magnesium oxide content of clinker 

used in cement product (40 CFR part 98, 

subpart H), carbonate content of raw 

materials used in glass production (40 

CFR part 98, subpart N), and hourly CO2

concentration in liquid alkaline 

feedstock for soda ash manufacturing 

(40 CFR part 98, subpart CC). 

• Operating information that are used 

by reporting facilities as inputs to 

emissions equations, such as hourly 

average CO2 concentration in exhaust 

gases, hourly average stack gas 

volumetric flow rate, hourly moisture 

percentage in the stack gas, mass of 

steam generated by fuel combustion, 

and operating time (40 CFR part 98, 

subpart Y). 

• Site-specific emission factors, used 

by reporting facilities as inputs to 

emissions equations, for source 

categories such as adipic acid 

production (40 CFR part 98, subpart E), 

nitric acid production (40 CFR part 98, 

subpart V), and iron and steel 

production (40 CFR part 98, subpart Q). 

• Equipment or system specifications 

that are used by reporting facilities as 

inputs to emissions equations to 

calculate GHG emissions, such as the 

collection efficiency of landfill gas 

systems (40 CFR part 98, subpart HH). 

Rationale for Proposed 

Determination. As discussed in Section 

I.C of this preamble, emission data must 

be available to the public and is not 

entitled to confidential treatment. 

‘‘Emission data’’ is defined in 40 CFR 

2.301(a)(2) as ‘‘information necessary to 

determine the identity, amount, 

frequency, concentration, * * * of any 

emission which has been emitted by the 

source * * *’’. Consistent with this 

definition of emission data, EPA 

considers inputs to emission equations 

to be ‘‘information necessary to 

determine * * * the amount’’ of any 

emission emitted by the source. 

As explained above, many subparts 

allow the facility to select from two or 

more calculation methods. For example, 

many source category subparts allow 

companies to choose to calculate 

emissions by either (1) measuring gas 

flow rates and emissions concentrations 

with CEMS and using those data to 

calculate annual mass emissions, or (2) 

using emission calculation equations 

provided in the rule and site-specific 

input data needed to perform the 

calculation. However, once a facility 

selects a calculation method, then the 

equation becomes the only way for 

determining such emissions for the time 

period the selected calculation method 

is used.9 Since the data inputs required 

by the selected equation are needed to 

perform the emission calculation, these 

inputs to the equation are information 

‘‘necessary to determine’’ the calculated 

emissions. 

Our proposed determination for this 

data category is consistent with the 1991 

EPA notice of policy on emission data. 

Some of the data fields listed in the 

1991 notice are the same as some of the 

data elements in this data category. For 

example, in the 1991 notice, EPA 

considered the emission rate, emission 

concentration, and emission density or 

molecular weight to be emission data 

and therefore releasable to the public. 

Summary. EPA proposes to determine 

that the data elements in the Inputs to 

Emission Equations Category are 

‘‘necessary to determine’’ the sources’ 

emissions and are therefore ‘‘emission 

data’’ as defined in 40 CFR 2.301(a)(2)(i). 

EPA solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

Use of Continuous Monitoring 

Systems (CEMS). EPA notes that in 

many cases the use of CEMS reduces the 

number of data parameters required to 

be reported. Many subparts allow 

facilities to choose between using CEMS 

and using source-category specific GHG 

calculation procedures. This action 

proposes that for direct emitting 

facilities, inputs to emission calculation 

equations are ‘‘emission data’’ and 

would be released. However, if a facility 

chooses to use CEMS to determine CO2

emissions from a particular process, 

then emissions are directly measured, 

and the facility would have no reported 

data elements that are inputs to CO2

emission equations. For example, all 

ammonia production facilities must 

report the amount of feedstock used; 

however, under the proposed 

determinations, this data would be 

treated as confidential only for facilities 

using CEMS. For facilities that do not 

use CEMS, the feedstock data would not 

be eligible for confidential treatment 

since it is used as inputs to the mass 

balance equations provided in 40 CFR 

part 98, subpart G and would be 

considered ‘‘emission data’’. 

In addition, facilities that use CEMS 

generally have to report fewer data 

elements than those using emission 

equations. For example, ammonia 

production facilities that do not use 

CEMS must report the carbon content, 

as well as the amount, of each feedstock 

used. Therefore, by using CEMS, a 

reporting facility would be required to 

submit a more limited range of data 

elements, thereby potentially alleviating 

any concern for other data not required. 

EPA recognizes that there are some 

situations where use of a CEMS for one 

GHG will not avoid release of data 

elements used to calculate emissions of 

other GHGs. For example, many 

facilities that use CEMS to determine 

CO2 emissions from stationary 

combustion sources will use calculation 

procedures to determine CH4 and N2O 

emissions from the same combustion 

sources. In this case, reported data 

elements such as fuel use and higher 

heating value (HHV) for these 

combustion units would be inputs to 

emission equations for CH4 and N2O 

emission calculations and would 

therefore be released, regardless of the 

fact that CEMS are used to determine 

CO2 emissions. 

EPA solicits comments on whether 

and to what extent the use of CEMS 

would relieve industry concerns 

regarding making data available to the 

public. We specifically solicit comment 

on the extent to which industry would 

take advantage of the option if EPA 

added CEMS methodologies for CH4 and 

N2O to the Mandatory Reporting Rule 

where appropriate. 

5. The Calculation Methodology and 

Methodological Tier Category 

EPA proposes to determine that the 

reported calculation methodology and 

the methodological tier used by a 

reporting facility to calculate its GHG 

emissions are ‘‘emission data’’ under 40 

CFR 2.301(a)(2)(i). 

Description of data elements. Data 

elements included in this category are 

the methodology used by a reporting 

facility to calculate its annual GHG 

emissions under Part 98, including the 


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methodological tiers used to calculate 

CO2 emissions from fuel combustion 

under 40 CFR part 98, subpart C. This 

category also includes data elements 

that are used to determine the correct 

calculation method or to select the 

correct input for a GHG emission 

calculation. 

Each subpart of Part 98 specifies the 

method(s) that must be used to calculate 

GHG emissions. Some subparts allow a 

choice of two or more specified 

alternative methods. When this occurs, 

the rule requires that the method chosen 

be reported. The methods vary by 

subpart but may include, for example, 

the following: 

• Using a ‘‘mass balance’’ approach to 

calculate GHG emissions based on the 

amount and carbon content of the raw 

materials fed to the manufacturing 

process and the amount of carbon that 

is removed from the process in the final 

product and waste streams. 

• Using a mass balance approach to 

calculate GHG emissions based on the 

amount of GHGs used in a 

manufacturing process, the utilization 

rate of GHG in the process, and the 

fraction of excess GHG destroyed by an 

abatement device. 

• Using a site-specific GHG emission 

factor determined from stack testing and 

measurements of process parameters 

during the test. 

• Calculating GHG emissions from 

default emission factors provided in 

Part 98 and the amount of material 

consumed as either a fuel or raw 

material in a manufacturing process. 

• Monitoring GHG emissions directly 

from a stack or vent using a CEMS. 

40 CFR part 98, Subpart C (General 

Stationary Fuel Combustion Sources) 

specifies four different methodological 

‘‘tiers’’ for calculating CO2 emissions. 

The lowest tier (Tier 1) uses default 

heating values and default CO2 emission 

factors listed in Part 98 (by fuel) to 

calculate CO2 emissions. The highest 

tier (Tier 4) uses CEMS to measure CO2

emissions directly. Tiers 2 and 3 use 

data from measurements of heating 

value and/or carbon contents of the 

fuels combusted at a facility to calculate 

CO2 emissions. Reporters are required to 

report which tier was used to calculate 

emissions. 

In addition to which method or tier 

was used, this category also contains 

data elements that are used to determine 

which calculation methodology must be 

used. For example, in 40 CFR part 98, 

subpart C, the tier(s) that a facility is 

allowed to use depends on the size of 

the combustion unit, the type of fuel(s) 

combusted, and whether there is 

existing fuel and emissions monitoring 

at the reporting facility. In 40 CFR part 

98, subpart Y (Petroleum Refineries), the 

maximum rated throughput is used to 

determine which calculation method is 

used for catalytic cracking units and 

fluid coking units. Therefore, these data 

elements are included in this data 

category. 

This data category also includes the 

calculation methods submitted in 

applications for approval of alternative 

methods from adipic acid and nitric 

acid facilities and BAMM extension 

requests, and the methods and other 

information included in or required to 

be reported by a Geologic Sequestration 

MRV Plan. 

Examples of data elements in this 

category include the following: 

• The tier used to determine CO2

emissions from each stationary 

combustion unit under 40 CFR part 98, 

subpart C. 

• Criteria needed to decide which tier 

is allowed to be used to determine CO2

emissions from each stationary 

combustion unit under 40 CFR part 98, 

subpart C (e.g., size of the combustion 

unit, and the type of fuel(s) combusted). 

• Whether process emissions were 

determined using the carbon mass 

balance method or whether the sitespecific emission factor method was 

used to determine CO2 emissions (e.g., 

40 CFR part 98, subpart Q Iron and Steel 

Production). 

• Whether the facility used a 

measured value, default emission factor, 

or unit-specific emission factor to 

determine CH4 and N2O emissions (e.g., 

40 CFR part 98, subpart Y Petroleum 

Refineries). 

• Whether CO2 emissions were 

calculated using the trona input 

method, the soda ash output method, or 

a site-specific emission factor method 

(e.g., 40 CFR part 98, subpart CC Soda 

Ash Manufacturing). 

• Method used for estimating waste 

disposal quantity and reason for its 

selection (e.g., 40 CFR part 98, subpart 

HH Municipal Solid Waste Landfills). 

• Proposed alternative method for 

determining emissions from adipic acid 

or nitric acid production facilities, 

including the calculation method, test 

methods (as applicable), monitoring, 

QA/QC, and missing data procedures) 

submitted in applications for approval 

of alternative methods (40 CFR part 98, 

subparts E and V). 

• Identification of the parameter, 

subpart, and rule citation for which a 

BAMM extension is requested (40 CFR 

part 98, subpart A). 

• Methods and other data submitted 

in MRV Plans (including methods for 

detecting and quantifying any CO2

leakage to the surface, methods 

assessing the risk of leakage of CO2 to 

the surface from geologic sequestration, 

methods for establishing pre-injection 

environmental baselines, and any other 

information included in the MRV Plan 

(e.g., location and depth of all potential 

leakage pathways, qualitative 

descriptions of each potential leakage 

pathway; methods used to characterize 

the site)), and any data required by an 

approved MRV plan to be submitted to 

EPA in the annual report (proposed 40 

CFR part 98, subpart RR, 75 FR 18576, 

April 12, 2010). 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in the 

Calculation Methodology and 

Methodological Tier Category are 

‘‘emission data’’ under 2.301(a)(2) 

because they are ‘‘information necessary 

to determine * * * the amount’’ of any 

emission emitted by the source. 

The method (including the 

methodological tiers in 40 CFR part 98, 

subpart C) used by a direct emitter to 

calculate emissions is ‘‘emission data’’ 

under 40 CFR 2.301(a)(2) because it is 

information necessary for the reporter to 

actually calculate the emissions and for 

EPA and the public to verify that an 

appropriate method was used. The 

method used by a facility is important 

for determining whether the facility 

selected the appropriate equations and 

used appropriate inputs to the 

calculations. For example, if a facility 

chooses to use a default emission factor 

method, they must select the 

appropriate factor provided in the rule, 

whereas if they select a site-specific 

emission factor method, they must 

collect additional data to support their 

own factor. Therefore, data elements 

that are used to determine what 

methodology is required (or allowed) to 

be used are also necessary to determine 

emissions because these data are also 

needed to determine whether the 

reporter selected the appropriate 

equations and inputs. 

As discussed in Section I.C of this 

preamble, the 1991 EPA notice of policy 

provided a list of information that EPA 

considered to constitute ‘‘emission data’’ 

under 40 CFR 2.301(a)(1)(2)(i). That list 

includes ‘‘emission estimation method 

(e.g., the method by which an emission 

estimate has been calculated such as 

material balance, source test, use of AP– 

42 emission factors, etc.),’’ which are the 

same type of data elements as those in 

this data category and would include 

methods already provided in Part 98, as 

well as alternative methods included in 

applications submitted by adipic acid 

and nitric acid facilities (40 CFR part 98, 

subparts E and V) and the methods 

included in MRV Plans submitted by 

geologic sequestration facilities 


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10Numeric values used as substitutes for missing 

data are included in the Inputs to Equations Data 

Category, since these values are used to calculate 

GHG emissions during periods when data was not 

collected in accordance with the monitoring 

methods specified in the applicable subpart (e.g., 

during periods of equipment failure or 

malfunction). 

(proposed 40 CFR part 98, subpart RR, 

75 FR 18576, April 12, 2010). In 

addition to the methods included in the 

MRV Plans, EPA has concluded that the 

supporting documentation (e.g., location 

and description of potential leakage 

pathways, frequency of monitoring, and 

the strategy for detecting leaks) are 

integral to the ‘‘emission estimation 

method’’ selected and are therefore also 

considered to be ‘‘emission data’’. 

Summary. EPA is proposing to 

determine that the data elements in the 

Calculation Methodology and 

Methodological Tier Category are 

‘‘emission data’’ as defined in 40 CFR 

2.301(a)(2)(i). EPA solicits comments on 

this proposed determination, including 

whether the data category determination 

is appropriate as well as whether the 

appropriate data elements were assigned 

to this category. In particular, EPA seeks 

comment on whether any specific 

elements, methods, or supportive 

material that could be part of an MRV 

plan should not be determined to be 

‘‘emission data’’, and if so which specific 

elements, methods, or supportive 

material. If commenters believe that 

specific MRV plan elements, methods, 

or supportive material should not be 

determined to be ‘‘emission data’’, please 

comment on why the data element does 

not fall within the regulatory definition 

of emission data as well as whether you 

think the data elements are CBI, and if 

so why. 

6. The Data Elements Reported for 

Periods of Missing Data That Are Not 

Inputs to Emission Equations 

EPA proposes to determine that the 

data elements that must be reported 

during missing data periods that are not 

inputs to emission equations are 

‘‘emission data’’ under 40 CFR 

2.301(a)(2)(i). 

Description of data elements. Data 

elements in this category include 

information that is reported when data 

specified in Part 98 for calculating 

annual GHG emissions are missing. This 

category does not include the numeric 

values used as substitutes for missing 

data.10 Rather, this category includes 

data elements that indicate the overall 

quality and reliability of the reported 

GHG emissions, such as the number of 

times substitute values are used and the 

method used to determine a substitute 

value. 

Each subpart of Part 98 has a section 

that specifies how values are to be 

generated as substitutes for missing 

data. For example, if the high heating 

value or carbon content of a fuel is 

missing, a substitute value is generated 

by using the arithmetic average of the 

quality assured value of that parameter 

immediately preceding and following 

the missing data incident. If a source is 

using a CEMS to measure GHG 

emissions, then the subpart will specify 

that the missing data procedures in 40 

CFR part 75 should be followed. In 

other cases, a subpart may specify that 

the reporter can substitute for missing 

data an estimate derived from the best 

available process information from the 

source. 

The Missing Data Category contains 

the following data elements that all 

facilities are required to report under 40 

CFR part 98, subpart A: 

• Identification of each data element 

used as an input for estimating annual 

GHG emissions for which a missing data 

procedure was used. 

• The total number of hours in the 

year that a missing data procedure was 

used for each data element. 

The source category subparts specify 

any other information that must be 

included in annual GHG reports when 

substitute values are used as inputs for 

estimating emissions in place of missing 

values. Provided below are some 

additional examples of the data 

elements in the Missing Data Category: 

• Number of times missing data 

procedures were used to estimate 

missing data, such as carbon content 

and molecular weight of fuels (40 CFR 

part 98, subpart C), carbon content of 

raw materials (40 CFR part 98, subparts 

BB and EE), phosphate rock 

consumption (40 CFR part 98, subpart 

Z), and hourly CO2 concentration (40 

CFR part 98, subpart CC). 

• The time period during which 

missing data procedures were used, 

such as the percentage of operating 

hours in which substitute values are 

used for CO2 concentrations (40 CFR 

part 98, subpart C). 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in the 

Missing Data Category are ‘‘emission 

data’’, as defined at 40 CFR 2.301(a)(2)(i) 

because the identification of data 

elements for which substitute values 

were used and the methods used to 

estimate substitute values are needed to 

determine whether a reasonable 

methodology was used to determine 

substitute values and whether the 

annual GHG emissions are correctly 

calculated. Part 98 requires sources to 

calculate annual mass emissions (metric 

tons per year) for each GHG. Therefore, 

every period of emissions must be 

considered, even if the monitors needed 

to measure or calculate emissions are 

temporarily not operating correctly. 

Each subpart specifies the frequency 

with which certain data elements used 

to calculate GHG emissions need to be 

collected, and specifies procedures (or 

allows a choice of methods) to be 

followed if data are missing because 

they were not collected at the required 

frequency or the monitor is not 

operating properly. 

Identification of all periods of missing 

data and use of substitute data during 

such periods are necessary for 

determining the annual GHG emissions. 

In order to determine if the reported 

annual emission data are complete and 

the correct methods were used to 

determine substitute values, EPA needs 

to know when reported data values are 

substitutes for missing data and what 

method was used to calculate substitute 

data (for subparts that provide a choice 

or allow the reporter to develop and 

describe their own method). For the 

reasons stated above, the data elements 

in this data category are necessary to 

determine the amount of reported 

emissions and therefore qualify as 

‘‘emission data’’ under 40 CFR 

2.301(a)(i). 

Summary. EPA proposes to determine 

that the data elements in the Missing 

Data Category are ‘‘emission data’’, as 

defined in 40 CFR 2.301(a)(2)(i). EPA 

solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

7. The Unit/Process ‘‘Static’’ 

Characteristics That Are Not Inputs to 

Emission Equations Category 

As explained in Section I.C of this 

preamble, EPA is proposing to 

determine that the data elements in this 

category (none of which are inputs to 

equations/calculation methods or 

information otherwise needed to 

calculate or determine emissions) are 

not ‘‘emission data’’ under 40 CFR 

2.301(a)(2)(i) for purposes of 

determining the direct emitters’ GHG 

emissions to be reported under Part 98. 

For the reasons stated below, EPA also 

proposes to determine that the data 

elements in this category are not CBI 

under CAA section 114(c). 

Description of data elements. Data 

elements in this category include basic 

characteristics of units, process units, 

general equipment, abatement devices, 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
39112 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

11Note that unit characteristics needed to 

determine what calculation or tier methodologies 

are allowed to be used (e.g., maximum rated heat 

input of a combustion unit used to determine the 

correct tier for 40 CFR part 98, subpart C) are 

assigned to the Calculation Methodology and 

Methodological Tier Category described in Section 

II.C.5. of this preamble and are not assigned to this 

category. 

and other facility-specific 

characteristics. Data elements in this 

category are ‘‘static’’ because they do not 

vary with time or with the operation of 

the process. The data elements assigned 

to this category are required to be 

reported under one or more direct 

emitter source category subparts of Part 

98, but are not used as inputs to GHG 

emission equations provided in the 

rule.11 Static characteristics that are 

inputs to GHG emission equations are 

assigned to the Input to Equations Data 

Category. 

The data elements that must be 

reported differ for each source category. 

Examples of data elements in this 

category include the following: 

• Identification of the type of unit or 

process associated with the emissions 

(e.g., type of nitric acid process, type of 

smelter technology used, type of control 

device, type of abatement technology). 

• The annual product production 

capacity of the unit or production 

process that is not used to determine a 

calculation method (e.g., maximum 

annual production capacity for each 

soda ash manufacturing line). 

• The number of units (e.g., kilns, 

furnaces, boilers, etc.) at a facility. 

• The type of emission control 

technology used. 

• Description of each abatement 

system through which fluorinated GHGs 

or N20 flows at the facility, including 

associated tools and/or process for 

which the device treats exhaust, model 

number of each abatement device, and 

the manufacturers guaranteed 

destruction or removal efficiency (DRE) 

(proposed 40 CFR part 98, subpart I, 75 

FR 18652, April 12, 2010). 

• Description of the gas collection 

system, including capacity and number 

of wells in each gas collection system 

(40 CFR part 98, subparts HH and TT). 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

category are not CBI under CAA section 

114(c). EPA finds that the disclosure of 

the information is not likely to cause 

substantial harm to the competitive 

position of the businesses required to 

report these data elements under Part 

98. The data elements in this category 

consist of general descriptions of the 

number and type of GHG emission units 

and emission control devices and do not 

reveal any proprietary information or 

any other information that could 

provide insight for competitors to gain 

an advantage. For example, 

• The requirement in several subparts 

to report the type of process unit, 

equipment, or emission control 

technology used requires only reporting 

of the general equipment without 

disclosure of specific design details. For 

example, the requirement in 40 CFR 

part 98, subpart Y to report type of unit 

is satisfied by identifying that a unit is 

a fluidized catalytic cracking unit, 

thermal catalytic cracking unit, catalytic 

reforming unit, etc. These types of units 

are commonly used in the industry and 

no detailed specifications are required 

to be reported. 

• The requirement to report 

information on the number, and 

characteristics of control and abatement 

devices is not likely to disclose 

information that is sensitive. The 

number and type of control devices 

located at a facility and the process 

units to which they are connected is 

information that is included in 

construction and operating permits and 

therefore already publicly available. The 

destruction efficiency of control devices 

is also publicly available from 

marketing materials published by the 

manufacturer. While the name of the 

manufacturer and the model number of 

the control device installed at a 

particular facility may not be publicly 

available, the disclosure of this 

information is not likely to reveal 

sensitive information regarding the 

production, manufacturing process 

design, or raw materials consumed. For 

example, the proposed 40 CFR part 98, 

subpart I, Electronics Manufacturing (75 

FR 18652, April 12, 2010), requires 

reporters to describe the abatement 

systems used at each facility and 

provide the model number for each 

abatement system. This information 

does not disclose sensitive production 

information, such as the quantity and 

compositions of specific products 

produced of materials consumed at an 

electronics manufacturing facility, nor 

could it be used by competitors to 

devise competitive strategies to harm 

reporting parties. 

• Descriptions of GHG collection 

systems and design capacities of 

landfills do not reveal information that 

is proprietary or sensitive in nature. For 

example, 40 CFR part 98, subpart HH, 

Municipal Landfills and 40 CFR part 98, 

subpart TT, Industrial Landfills require 

reporters to disclose the landfill design 

capacity and the number of wells in the 

gas collection system. These data are not 

likely to harm the reporters’ competitive 

position. The number of wells in a gas 

collection system is not proprietary or 

sensitive information. It does not reveal 

any information about manufacturing 

processes or products and is unlikely to 

reveal any proprietary information on 

the design or operation of a landfill gas 

collection system. The landfill design 

capacity is routinely included in State 

solid waste permits and Part 70 

operating permits so is often already 

publicly available. 

• The number of units and the 

capacities of manufacturing process 

units (which are reported under various 

subparts) are routinely included in 

permits, such as Part 70 operating 

permits. 

As shown above, the information 

required by the data elements in this 

category is not the type of information 

that could provide competitors with 

business insights and/or a competitive 

advantage over the reporting facility. 

Further, the information to be reported 

is general and would not contain details 

regarding product characteristics, actual 

production data (e.g., raw material 

consumption and the quantity of 

product produced), or operating 

efficiency (e.g., amount of product 

produced per unit of raw material 

consumed). It does not provide data that 

could allow competitors to infer market 

share, production costs, or pricing 

structures. For the reasons stated above, 

EPA finds that releasing the data in this 

category would not be likely to cause 

substantial harm to the reporting 

business’s competitive position. 

Further, certain data elements in this 

category are already being made 

publicly available. Facility and unitlevel production capacity data for many 

industries subject to Part 98 are already 

available in the public domain as part 

of data released by other reporting 

programs or through reference materials 

available for purchase or through the 

Internet. Several publications contain 

production capacity for facilities. For 

example, production capacity for the 

iron and steel industry is available 

through the Association for Iron & Steel 

Technology (http://steellibrary.com). 

SRI’s Chemical Economics Handbook 

publishes plant-level capacity data for 

both commodity and specialty 

chemicals (http:// 

www.sriconsulting.com). The Energy 

Information Administration (EIA) 

publishes facility level capacity data for 

petroleum refineries, which is released 

annually in EIA’s ‘‘Refinery Capacity 

Report’’ and on the Interned (http:// 

www.eia.doe.gov). In addition, some 

State permits, such as Part 70 operating 

permits, contain maximum capacities of 

combustion units or manufacturing 

process units. 


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12Note also that unit characteristics that are 

needed to determine what calculation or tier 

methodologies are allowed to be used (e.g., fuel 

type used to determine the appropriate tier for 40 

CFR part 98, subpart C) are assigned to the 

Calculation Methodology or Methodological Tier 

Category described in Section II.C.5 of this 

preamble, and are not assigned to the unit/process 

operating characteristics category. 

Summary. For the reasons stated 

above, EPA is proposing to determine 

that the data elements in this category 

are not CBI under CAA section 114(c). 

EPA solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

8. The Unit/Process Operating 

Characteristics That Are Not Inputs to 

Emission Equations Category 

As explained in Section I.C of this 

preamble, EPA is proposing to 

determine that the data elements in this 

category (none of which are inputs to 

equations/calculation methods or 

information otherwise needed to 

calculate or determine emissions) are 

not ‘‘emission data’’ under 40 CFR 

2.301(a)(2)(i) for purposes of 

determining the direct emitters’ GHG 

emissions to be reported under Part 98. 

For the reasons stated below, EPA 

proposes to determine that the data 

elements in this category are not CBI 

under CAA section 114(c). 

Description of data elements. Data 

elements in this category include the 

operating characteristics related to 

process and combustion units. Data 

elements in this category are 

‘‘operational’’ because they change over 

time with changes in operations or 

processes. This category does not 

include unit/process operating 

characteristics that are inputs to the 

GHG emissions equations provided in 

Part 98.12 The data elements in this 

category that must be reported differ for 

each source category. Examples of types 

of data elements in this category include 

the following: 

• Total number of source operating 

hours in the reporting year. 

• Number of operating kilns. 

• Description of the flare service, e.g., 

general, unit, emergency, or back-up for 

refineries (40 CFR part 98, subpart Y). 

• Type of vessel into which material 

that has an equilibrium vapor-phase 

concentration of CH4 of 0.5 volume 

percent or greater is loaded (40 CFR part 

98, subpart Y). 

• Sampling analysis results for carbon 

content of consumed petroleum coke as 

determined for QA/QC of supplier data 

(40 CFR part 98, subparts G, BB, and 

EE). 

• Surface area of the landfill 

containing waste (40 CFR part 98, 

subpart HH). 

• Identification of combustion units 

that burned both process off-gas and 

supplemental fuel (40 CFR part 98, 

subpart X). 

• Statement indicating whether any 

of the reported GHG emissions are from 

cogeneration units (proposed 

amendments to 75 FR 18455, April 12, 

2010). 

• Reasons for applying for a BAMM 

extension request, anticipated date of 

installation of monitoring equipment, 

descriptions of actions the facility will 

take to obtain and install the monitoring 

equipment) (40 CFR part 98, subpart A). 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

category are not CBI under CAA section 

114(c). EPA finds that the disclosure of 

the information is not likely to cause 

substantial harm to the competitive 

position of the businesses required to 

report these data elements under Part 

98. Most of the data elements in this 

category consist of general information 

on number of operating units, operating 

hours, vessel type and for four subparts 

the results of QA/QC sample analysis 

and do not reveal any proprietary 

information or any other information 

that would likely provide insight for 

competitors to gain an advantage. For 

example, 

• The requirement in 40 CFR part 98, 

subpart Y to describe the flare service 

(how the flare is utilized) is satisfied by 

describing whether the flare was used as 

a general facility flare, a unit flare, or an 

emergency/back-up flare during the 

reporting year. Flares are commonly 

used in the industry for these purposes 

and no detailed specifications are 

required to be reported. 

• Similarly, the disclosure of general 

information reported in 40 CFR part 98, 

subpart HH, such as the surface areas of 

the landfill containing waste does not 

disclose proprietary information. 

Surface area containing waste can be 

readily observed, e.g., from touring the 

landfill or aerial photos, so is already 

available and not entitled to 

confidential treatment. 

• Releasing information, such as the 

number of operating kilns (40 CFR part 

98, subpart H) or the total number of 

operating hours in the reporting year for 

combustion units (40 CFR part 98, 

subpart C), does not disclose actual 

production rates of various products nor 

could it be used to determine 

production rate or production capacity. 

It also does not reveal details about the 

production processes used, or other 

information (e.g., production efficiency, 

production costs, or pricing structure) 

that a competitor could use to develop 

marketing strategies to undermine the 

reporter’s competitive position. 

• Identifying the combustion units 

that burned both process off-gas and 

supplemental fuel under 40 CFR part 

98, subpart X provides no specific 

details on equipment design or 

confidential manufacturing processes. 

Combustion of process off-gas is a 

common practice for petrochemical 

production facilities, where destruction 

of waste gases exhausted from process 

units is frequency used to comply with 

other regulations (e.g., 40 CFR part 60 

and part 63) and therefore, is 

information that is generally included in 

Part 70 operating permits. 

• Stating whether cogeneration units 

were used during the reporting units as 

proposed in the amendments to 40 CFR 

part 98, subpart A (75 FR 18652, April 

12, 2010) does not reveal information 

about the type, number, or operating 

hours of the cogeneration units located 

at a facility, or reveal sensitive 

information about a production process. 

As explained above, the information 

required by the elements in this 

category is not the type of information 

that could provide competitors with 

business insights and/or a competitive 

advantage over the reporting facility. 

Further, the information to be reported 

is general and could not contain details 

regarding product characteristics, actual 

production data (e.g., raw material 

consumption or quantity of product 

produced), or operating efficiency (e.g., 

amount of product produced per 

amount of raw material consumed). It 

does not provide information that could 

allow competitors to infer market share, 

production costs, or pricing structures 

and thus gain a competitive advantage. 

There is one type of data element in 

this category, the results of QA/QC 

sampling for 40 CFR part 98, subparts G, 

N, BB, and EE that are specific 

numerical values dealing with material 

composition that could be considered 

sensitive or proprietary information. 

These carbon contents are not used as 

inputs in emission equations. Rather 

they are measured only once a year for 

the purposes of QA/QC of the 

composition data provided to the 

facility by the suppliers of their raw 

material and used as inputs to the 

emission calculations. The numerical 

values obtained from the annual QA/QC 

sampling should be consistent with the 

carbon content data provided by 

suppliers. As discussed in Section II.C.4 

of this preamble, the carbon content 

data provided by suppliers is included 

as a data element in Inputs to Equations 

Category, which EPA proposes to 


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determine is ‘‘emission data’’ as defined 

in 40 CFR 301(a)(2)(i) and make 

publicly available. Therefore, release of 

the annual QA/QC sampling results data 

element could not reveal any 

substantive additional information 

regarding the composition of materials 

because the carbon content data 

provided by the raw material supplier 

would be publicly available. 

For these reasons stated above, EPA 

finds that releasing the data in the 

category is not likely to cause 

substantial harm to the reporting 

business’s competitive position. 

Further, the same data are already 

being submitted and made available to 

the public under other Federal 

programs. For example, for electricity 

generating units, the Acid Rain program 

already releases unit operating 

characteristics such as operating hours 

and fuel type for combustion units, 

which are the same data to be reported 

under 40 CFR part 98, subparts C and 

D. 

Summary. For the reasons stated 

above, EPA proposes to determine that 

the data elements in this category are 

not CBI under CAA section 114(c). EPA 

solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

9. The Test and Calibration Methods 

Category 

As explained in Section I.C of this 

preamble, EPA is proposing to 

determine that the data elements in this 

category (none of which are inputs to 

emission equations or information 

otherwise needed to calculate or 

determine emissions) are not ‘‘emission 

data’’ under 40 CFR 2.301(a)(2)(i) for 

purposes of determining the direct 

emitters’ GHG emissions to be reported 

under Part 98. For the reasons stated 

below, EPA also proposes to determine 

that the data elements in this category 

are not CBI under CAA section 114(c). 

Description of data elements. Data 

elements in this category include 

information about the site-specific 

calibration methods used to calibrate 

monitoring instruments required by Part 

98, frequency of sampling and analysis, 

test methods used for performance tests, 

and methods for analyzing compositions 

of materials. Each of the data elements 

in this category is required to be 

reported under one or more source 

category subparts in Part 98. Examples 

of data elements in this category include 

the following: 

• Frequency at which sampling and 

analysis is performed. For example, the 

frequency with which samples of fuel 

are collected and analyzed for HHV, 

carbon content, and molecular weight 

(40 CFR part 98, subpart C). 

• Method used for: 

—Determining quantity of feedstock. 

—Determining carbon content. 

—Tracking startups, shutdowns, and 

malfunctions. 

—Determining quantity of lime and lime 

byproduct/waste sold (e.g., 40 CFR 

part 98, subpart S Lime 

Manufacturing). 

—Estimating municipal waste 

composition from other or more 

refined waste categories (e.g., 40 CFR 

part 98, subpart HH Municipal Solid 

Waste Landfills). 

—Determining the average carbon 

content of coke (e.g., for catalytic 

cracking units and coking units under 

40 CFR part 98, subpart Y Petroleum 

Refineries). 

• Test method used for performance 

tests (stack emission tests) (e.g., 40 CFR 

part 98, subpart V Nitric Acid 

Production). 

• Indication of whether the fraction of 

CH4 in landfill gas was determined 

based on measured values or the default 

value (e.g., 40 CFR part 98, subpart HH 

Municipal Solid Waste Landfills). 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

category are not CBI under CAA section 

114(c). EPA finds that the disclosure of 

the information is not likely to cause 

substantial harm to the competitive 

position of the businesses required to 

report these data elements under Part 

98. The data elements in this category 

consist of general descriptions of 

methods and the frequency of 

conducting performance tests or sample 

analysis for the purposes of determining 

values used as inputs to equations. The 

data elements in this category do not 

reveal the numerical results of such 

tests. The data elements do not reveal 

any proprietary information or any other 

information that would likely provide 

insight for competitors to gain an 

advantage. For example, 

• Data elements such as methods and 

frequencies used to determine the 

carbon content and HHV of various 

materials do not reveal proprietary 

information and are not likely to 

provide insight into the composition of 

materials used or other sensitive 

information related to raw materials 

consumption. The analytical method 

and frequency of analysis does not 

reveal any numerical data on material 

composition and the limited 

information on material type that is 

revealed is either already common 

knowledge or is reported information 

that is necessary to determine the GHG 

emissions. For example, the method 

used by a titanium dioxide production 

facility (40 CFR part 98, subpart EE) to 

determine the carbon content of their 

petroleum coke could not reveal any 

proprietary information on the raw 

materials used since it is common 

knowledge that petroleum coke is a raw 

material for the production of titanium 

dioxide. Similarly, the method used to 

determine the carbonate content of raw 

materials used at a glass production 

facility (40 CFR part 98, subpart N) 

could not reveal any additional 

substantive information because 

detailed data on each raw material must 

be reported and is used as inputs to the 

equations. As discussed in the ‘‘Inputs 

to Equations’’ in Section II.C.4 of this 

preamble, EPA proposes that inputs to 

equations are ‘‘emission data’’ and 

would be publicly released. 

• Similarly, the disclosure of 

measurement dates, locations and 

methods used for performance tests, 

locations of flow measurements, or 

types of meters used does not provide 

specific operational details about 

production processes. It also does not 

provide any numerical information 

about amounts or composition of 

products or raw materials consumption. 

• The requirement in 40 CFR part 98, 

subpart Y to provide the basis for the 

average carbon content of coke is 

satisfied by identifying the means by 

which the value was determined. 

Details regarding the actual measured 

carbon content will not be disclosed. 

As explained above, the information 

required by the data elements in this 

category is not the type of information 

that could provide competitors with 

business insights and/or competitive 

advantage over the reporting facility. 

Further, the information to be reported 

are general and would not contain 

details regarding product 

characteristics, production data (e.g., 

raw material consumed or quantity of 

product produced), or operating 

efficiency (e.g., amount of product 

produced per unit of raw material 

consumed). It also does not provide data 

that could allow competitors to infer 

market share, production costs, and 

pricing structures and thus gain a 

competitive advantage. 

Further, information on the test 

methods and frequency of measurement 

are already being submitted and made 

available to the public under other 

Federal programs. For example, the 

Acid Rain program requires reporters to 

report the method used for determining 

fuel flow over a given period. This is the 

same type of information as the 


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requirement in 40 CFR 98.76, which 

requires ammonia manufacturers to 

report the method used to determine the 

quantity of liquid feedstock consumed 

using a flow meter. The Acid Rain 

program also requires reporting of the 

method used to determine fuel gross 

calorific value, which is identical to the 

requirement to report the method used 

to determine HHV required under 

various subparts of Part 98. As 

discussed in Section I.F of this 

preamble, the Acid Rain program 

currently makes all of the reported data 

available to the public. 

Summary. For the reasons stated 

above, EPA proposes to determine that 

the data elements in this data category 

are not CBI under CAA section 114(c). 

EPA solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

10. The Production/Throughput Data 

That Are Not Inputs to Emission 

Equations Category 

As explained in Section I.C of this 

preamble, EPA is proposing to 

determine that the data elements in this 

category (none of which are inputs to 

equations/calculation methods or 

information otherwise needed to 

calculate or determine emissions) are 

not ‘‘emission data’’ under 40 CFR 

2.301(a)(2)(i) for purposes of 

determining the direct emitters’ GHG 

emissions to be reported under Part 98. 

For the reasons stated below, EPA 

proposes to determine that the data 

elements in this data category are CBI 

under CAA section 114(c). 

Description of data elements. Data 

elements included in this category are 

production and throughput data that are 

not used as inputs to calculate annual 

GHG emissions under Part 98. Each of 

these data elements is required to be 

reported under one or more of the direct 

emitting source category subparts of Part 

98. The data elements that must be 

reported differ for each source category. 

Provided below are some examples of 

the data elements in this Category: 

• Monthly or annual production 

quantity of products and byproducts, 

such as annual quantities of 

petrochemicals produced (40 CFR part 

98, subpart X), annual urea production 

(40 CFR part 98, subpart G), monthly 

cement production (40 CFR part 98, 

subpart H), annual production of 

ferroalloy products (40 CFR part 98, 

subpart K), annual glass production (40 

CFR part 98, subpart N), synthetic 

fertilizer production (40 CFR part 98, 

subparts G and V), and annual amount 

of byproducts produced (40 CFR part 

98, subpart S). 

• Beginning and end of year 

inventories for byproducts and wastes 

(40 CFR part 98, subpart S). 

• Annual quantity of products sold 

and not sold (40 CFR part 98, subpart 

S). 

• Product and byproduct 

characteristics, such as the type of 

petrochemical and other products 

produced (40 CFR part 98, subpart X), 

carbon content of wastes (40 CFR part 

98, subpart EE), and the monthly results 

of chemical composition analysis of 

lime products and sold (40 CFR part 98, 

subpart S). 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

data category are entitled to confidential 

treatment because disclosure of these 

production and throughput data is 

likely to cause substantial harm to the 

competitive position of businesses 

required to report these data elements 

under Part 98. Disclosing a facility’s 

production/throughput data could be 

detrimental to a firm’s competitiveness 

by revealing confidential process 

information and operational and 

marketing strategies. For example: 

• The disclosure of annual 

production quantities of products, used 

in conjunction with other publicly 

available data related to capacity, 

provides insight to a firm’s operational 

strengths and weaknesses. Competitors 

could determine at what percent 

capacity a firm is operating, which can 

reveal information on the financial and 

competitive strength of the firm. For 

example, it could reveal that a 

manufacturer is operating well below 

capacity and likely experiencing 

financial difficulties. Having such 

information could allow competitors to 

narrow the competition by adjusting 

their prices to the further detriment of 

the reporting company, or to formulate 

other competitive strategies or corporate 

acquisition strategies to the detriment of 

the reporting company. Having 

information on the percent of capacity 

at which a firm is operating could also 

reveal whether a manufacturer has 

existing capacity available to take on 

new customers in a growing market or 

is already at their maximum production 

and would need to invest capital to 

expand capacity in order to produce 

more. Having such information could 

give competitors insights to make 

competitive decisions on expanding 

their own production rates or altering 

their pricing strategies to the detriment 

of the reporting company. 

• The disclosure of annual 

production quantities—in particular, 

products sold and not sold—provide 

insight to a firm’s market strength and 

position. Competitors could use 

production data to gain a competitive 

advantage over a firm by better 

approximating a firm’s market share. 

For example, annual production data 

may reveal confidential information 

related to rapid growth or decline in 

market share, customer base, and 

marketing strategies. It might enable 

firms to tell which of their competitors 

won a contract/new customer they 

competed for. This could substantially 

harm the firm’s competitive position 

because the information could enable 

competitors to devise strategies to steal 

specific customers or even key 

employees. Changes in the mix of 

products produced could reveal 

marketing strategies. In many cases, an 

accurate estimate of the market position 

of a firm is difficult to procure, and the 

disclosure of such information through 

Part 98 could lead to distortions in the 

market and could expose reporting 

parties to disadvantageous market 

conditions. 

• Disclosure of facility-level 

production/throughput quantities and 

product compositions could give 

competitors insight into a firm’s local 

and regional market conditions and 

expansion plans, enabling competitors 

to devise strategies to prevent expansion 

and to steal market share in specific 

locations. In general, competitors do not 

currently have access to actual facility 

production rates or other information 

that could allow them to assess 

competition and market conditions in 

regional detail, because publicly 

available financial and economic 

information is released at the corporate 

level rather than the facility level. 

• Information about production 

quantities of each product and the 

product mix of a firm may enable 

competitors to determine the type of 

production process used (since different 

processes can have different 

characteristic product mixes). Such 

information is proprietary and public 

disclosure could substantially harm a 

firm’s competitive position by revealing 

sensitive information. This information 

may also allow competitors to 

reasonably infer the types and 

approximate amounts of feedstocks 

consumed, which may enable 

competitors to devise strategies to 

compete for raw material resources. If in 

addition to production quantities, 

feedstock consumption data are also 

released under Part 98, competitors 

could use the combination of 

production and feedstock consumption 

data to expose sensitive information 

such as operating efficiencies (amount 


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of product produced per unit of raw 

material consumed) and allow 

competitors to infer production costs 

and pricing structures. Competitors 

could use such information to steal 

market share by undercutting a firm’s 

pricing structure. 

• Information about the chemical 

composition of products may allow 

competitors to reasonably infer the 

types of feedstocks or raw materials 

consumed. This may enable competitors 

to devise strategies to compete for 

resources and harm the competitive 

position of reporting entities by 

otherwise driving up the costs of 

materials used for production. 

Summary. For the reasons stated 

above, EPA proposes to determine that 

data elements in this category are CBI 

under CAA section 114. EPA solicits 

comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

Release of Aggregated Production 

Data. For data elements in this category, 

EPA could release the data in an 

aggregated format that would maintain 

the confidentiality of the data. For 

example, EPA could release production 

data aggregated at the national level for 

all sources in each source category. EPA 

solicits comments on whether and in 

what ways aggregated data would be 

useful to the public, and suggestions for 

ways in which the data could be 

aggregated without affecting the 

confidentiality of the underlying data. 

11. The Raw Materials Consumed That 

Are Not Inputs to Emission Equations 

Category 

As explained in Section I.C of this 

preamble, EPA is proposing to 

determine that the data elements in this 

category (none of which are inputs to 

equations/calculation methods or 

information otherwise needed to 

calculate or determine emissions) are 

not ‘‘emission data’’ under 40 CFR 

2.301(a)(2)(i) for purposes of 

determining the direct emitters’ GHG 

emissions to be reported under Part 98. 

For the reasons stated below, EPA also 

proposes to determine that the data 

elements in this data category are CBI 

under CAA section 114(c). 

Description of data elements. Data 

elements included in this category are 

the amount and composition of raw 

materials (excluding fuel) consumed as 

inputs to the production process or 

received for other uses on site. This 

category does not include raw materials 

consumed that are inputs to the 

equations provided in Part 98 for 

calculating annual GHG emissions. Each 

of the data elements in this category is 

required to be reported under one or 

more subparts of Part 98. Provided 

below are some examples of the data 

elements in this category: 

• Annual quantity of feedstock 

consumed (40 CFR part 98, subpart G). 

• Annual quantity of carbonate basedraw material charged (40 CFR part 98, 

subpart N). 

• Annual mass of reactants fed into a 

process (40 CFR part 98, subpart O). 

• Names of carbon-containing 

feedstocks (40 CFR part 98, subpart X). 

• Annual arithmetic average percent 

inorganic carbon in phosphate rock 

from monthly records (40 CFR part 98, 

subpart Z). 

• Annual steam purchases (40 CFR 

part 98, subpart AA). 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

data category are CBI under CAA 

section 114(c) because the disclosure of 

these data could cause substantial harm 

to the competitive position of 

businesses reporting these data. 

Releasing these data would likely be 

detrimental to the operational and 

marketing strategies of the reporting 

facilities. For example: 

• The disclosure of the amount of 

feedstocks consumed and reactants fed 

into particular processes at a facility 

could provide insight into a facility’s 

operational strengths and weaknesses. 

Competitors could determine at what 

percent capacity a facility is operating 

sensitive details such as detailed 

manufacturing processes and product 

chemistries. 

• Information about feedstock 

quantities and composition could 

expose a firm’s competitive and 

marketing strategies. For example, a 

record showing significant consumption 

of a particular raw material resource 

may indicate to competitors that a firm 

is seeking entry into a new market, 

enabling the competitors to devise 

disruptive strategies. 

• Information about feedstock 

quantities and composition could reveal 

a firm’s suppliers and sourcing 

strategies. Among other things, 

competitors could use this information 

to create new strategies to compete for 

raw material resources and to obtain 

similar production cost structures. 

• Disclosure of facility-level (and in 

some cases the unit or process level) 

raw material consumption and 

composition data could give 

competitors insight into a firm’s local 

and regional market conditions, 

enabling competitors to devise strategies 

to steal market share in specific 

locations. In general, competitors do not 

currently have access to actual facility 

or unit-level raw material information 

that could allow them to assess 

competition and market conditions in 

regional detail, because publicly 

available financial and economic 

information is released at the corporate 

level rather than the facility level. 

• Information about feedstock 

consumption may enable competitors to 

determine the type of manufacturing 

processes used since processes vary by 

raw material consumption 

characteristics. This information may 

also allow competitors to reasonably 

infer production quantities of each 

product and the product mix of a 

facility. If in addition to raw materials 

consumption, production quantities 

data are also released under Part 98, 

competitors could use the combination 

of production and feedstock 

consumption data to expose sensitive 

information such as operating 

efficiencies (amount of product 

produced per unit of raw material 

consumed) and allow competitors to 

infer production costs and pricing 

structures. For example, disclosing the 

annual amount of steam purchases 

reported under 40 CFR part 98, subpart 

AA, in combination with other 

production data, may reveal a facility’s 

operating efficiency. Competitors could 

use such information to steal market 

share by undercutting a firm’s pricing 

structure. 

Summary. For the reasons stated 

above, EPA proposes to determine that 

data elements in this category are CBI 

under CAA section 114. EPA solicits 

comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

12. The Process-Specific and Vendor 

Data Submitted in BAMM Extension 

Requests Category 

As explained in Section I.C of this 

preamble, EPA is proposing to 

determine that the data elements in this 

category (none of which are inputs to 

equations/calculation methods or 

information otherwise needed to 

calculate or determine emissions) are 

not ‘‘emission data’’ under 40 CFR 

2.301(a)(2)(i) for purposes of 

determining the direct emitters’ GHG 

emissions to be reported under Part 98. 

For the reasons stated below, EPA also 

proposes to determine that the data 

elements in this data category are CBI 

under CAA section 114(c). 

Description of data elements. The 

data elements in this category include 


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certain information submitted by 

reporters in petitions to extend the use 

of BAMM. These data elements are 

submitted once, as part of the petition, 

and are not submitted on a recurring 

basis in the annual GHG reports. Part 98 

allowed use of BAMM for the first three 

months of 2010. A petition process was 

established in 40 CFR 98.3(d)(2) 

allowing facilities to submit, for EPA 

approval, requests to extend the use of 

BAMM beyond March 31, 2010. Similar 

allowances to submit BAMM requests 

are included in proposed rule 

amendments (see 75 FR 18652, April 12, 

2010 and 75 FR 18576, April 12, 2010). 

Much of the information submitted in 

BAMM requests, such as facility 

identification and location information 

and planned dates by which full 

monitoring equipment will be installed 

are classified in other data categories. 

However, some of the petitions received 

contain detailed process design 

information, vendor and cost 

information that are not technically 

similar to other data collected through 

Part 98. Provided below are some 

examples of the data elements in this 

Category: 

• Location where each monitor will 

be installed. Process diagrams may be 

included to show specific locations. 

• Information on alternative 

monitoring equipment suppliers and 

delivery dates investigated. 

• Supporting documentation 

demonstrating that it is not possible to 

isolate the equipment and install 

monitoring instruments without a full 

process unit shutdown. 

• Information on process unit 

shutdowns including frequency and 

dates of previous and planned 

shutdowns. 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

data category are CBI under CAA 

section 114(c) because the disclosure of 

these process-specific and vendor data 

submitted with BAMM extension 

requests is likely to cause substantial 

harm to the competitive position of 

businesses submitting these requests 

under Part 98. Disclosure could allow 

competitors to gain insight into the 

specific processes used by the facility 

that they could use to gain a competitive 

advantage. For example: 

• The disclosure of process design 

diagrams submitted to show monitor 

location or to show that it is not 

possible to install monitoring 

equipment without a process unit 

shutdown could allow competitors to 

determine the type of process, specific 

equipment, and sequence of process 

steps used in the reporter’s 

manufacturing process. Such 

information is often proprietary, and 

public disclosure could reveal trade 

secret or sensitive information and 

substantially harm a firm’s competitive 

position. The process configuration 

diagrams could also be used by a 

competitor to gain insight into whether 

the facility has multiple or 

interconnected lines to produce 

products, likely bottlenecks, potential 

spare capacity, and flexibility to 

produce alternative products. This 

could provide competitors with insight 

into a petitioner’s operational strengths 

and weaknesses. Such process-specific 

information could be used to infer 

information on production costs, pricing 

structures, and the ability of a firm to 

respond to changing market conditions. 

Having such information could give 

competitors insights to make 

competitive decisions on expanding 

their own production rates or altering 

their pricing strategies to the detriment 

of the reporting company. 

• Information provided in the 

petition about their communications 

with alternative suppliers, delivery 

dates, and backorder notices could 

reveal a variety of information that the 

facility submitting the BAMM requests 

and their suppliers consider sensitive. 

For example, documentation could 

include information on the exact 

equipment being ordered and/or price 

quotes. This information could be used 

by competitors of the reporter 

submitting the petition to infer the costs 

the reporter is paying to comply with 

mandatory reporting rule, which is 

sensitive information. It could also be 

used by competitors of the firms 

supplying monitoring equipment quotes 

to undercut prices or offer better 

delivery schedules and gain a 

competitive advantage. Documentation 

pertaining to the investigation and 

ordering of monitoring equipment could 

also include specific information about 

the process stream characteristics in the 

process lines being monitored. Such 

information might be provided to a 

supplier to be sure the monitoring 

equipment could withstand the process 

conditions (e.g., corrosive chemicals, 

temperatures) that the monitoring 

equipment will encounter. This 

information could allow competitors to 

gain insight into the production 

processes used by a facility and assist 

them in formulating competitive 

strategies as described in the preceding 

paragraph. 

• Information and frequency and 

schedule for process unit shutdowns 

could give competitors an 

understanding of the amount of process 

downtime and insight into process 

efficiency. It could also be used to infer 

if process modifications are being made 

(e.g., if there is a long shutdown). 

Knowledge about periods when a 

process unit will be shutdown and 

potentially have trouble supplying 

demand for a product could allow 

competitors to develop strategies to steal 

customers during such periods. 

Summary. For the reasons stated 

above, EPA proposes to determine that 

data elements in this category are CBI 

under CAA section 114. EPA solicits 

comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

D. Suppliers 

Part 98 also requires reporting from 

suppliers of products the use of which 

would or could release GHG emissions. 

Specifically, suppliers of fossil fuel 

products or industrial gases listed in 40 

CFR 98.2(a)(4) are required to report. 

The data reported under the supplier 

source categories differ from those 

required to be reported under the direct 

emitting source categories discussed in 

section II.C. of this preamble. Instead of 

reporting direct emissions to the 

atmosphere from their facilities and 

related information, suppliers report the 

quantities of fuel products or industrial 

gases they supply into the economy or 

export to another country, and the 

estimated GHG emissions that would or 

could ultimately be released when the 

fuels they supply are combusted or the 

industrial gases they supply are 

released. 

This section of the preamble covers 

all of the data elements required to be 

reported by the supplier source 

categories (subparts). Some facilities 

that are producers of fuels or industrial 

gases must report under both the direct 

emitter source categories and supplier 

source categories. For example, 

petroleum refineries must report the 

data elements required by 40 CFR part 

98, subpart Y (Petroleum Refineries) and 

40 CFR part 98, subpart MM (Suppliers 

of Petroleum Products). The data 

elements reported under direct emitter 

subparts (e.g., 40 CFR part 98, subpart 

Y) are discussed in Section II.C of this 

preamble. In general, the data reported 

under the direct emitter and supplier 

categories are different. For example, 40 

CFR part 98, subpart Y does not require 

reporting of product-specific production 

quantities and compositions that are 

reported under 40 CFR part 98, subpart 

MM. In a few cases, facilities that are 

subject to both a direct emitter subpart 

and a supplier subpart are required to 


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submit the same information under both 

subparts. For example, the proposed 

direct emitter 40 CFR part 98, subpart L 

(Fluorinated Gas Production)(75 FR 

18652, April 12, 2010) and the supplier 

40 CFR part 98, subpart OO (Suppliers 

of Industrial GHGs) both require 

facilities subject to these subparts to 

report the mass of each fluorinated gas 

produced by each process. In these 

cases, we assigned each data element 

reported under 40 CFR part 98, subpart 

L to the appropriate direct emitter data 

category and each data element reported 

under 40 CFR part 98, subpart OO to the 

appropriate supplier data category. 

However, the proposed determination 

that the data element is CBI is the same 

for the data element reported under the 

proposed direct emitter subpart L and 

the supplier 40 CFR part 98, subpart 

OO. In all instances where the same 

information is reported under both a 

direct emitter and a supplier source 

category, the proposed confidentiality 

determination is the same for both 

elements. 

This section also covers certain data 

elements from proposed 40 CFR part 98, 

subpart RR (Injection and Geological 

Sequestration of CO2) that are related to 

the injection and sequestration of CO2. 

All other data elements for proposed 40 

CFR part 98, subpart RR are covered in 

Section II.C of this preamble because 

they relate to direct emissions from 

surface equipment and emissions from 

the leakage of CO2 from geologic 

sequestration. 

As previously mentioned, EPA has 

grouped the supplier data elements in 

Part 98 into 11 data categories and 

proposes to determine, by category, 

whether the data elements are entitled 

to confidential treatment. As discussed 

in Section I.C of this preamble, EPA 

proposes to determine that none of the 

categories qualify as emission data. This 

section describes the data elements 

within each of the 11 supplier data 

categories and EPA’s proposed 

determination as to whether the data 

elements in each supplier category are 

CBI under CAA section 114(c). 

1. Data Categories and Confidentiality 

Analysis 

The 11 data categories for suppliers 

are as follows and are further described 

in Sections II.D.2 through II.D.12 of this 

preamble: 

• GHGs reported. 

• Production/throughput quantities 

and composition. 

• Identification information. 

• Unit/process operating 

characteristics. 

• Calculation, test, and calibration 

methods. 

• Data elements reported for periods 

of missing data that are not related to 

production/throughput or materials 

received. 

• Emission factors. 

• Amount and composition of 

materials received. 

• Data elements reported for periods 

of missing data that are related to 

production/throughput or materials 

received. 

• Supplier customer and vendor 

information. 

• Process-specific and vendor data 

submitted in BAMM extension requests. 

Sections II.D.2 through II.D.12 of this 

preamble describe EPA’s proposed CBI 

determination and rationale for each of 

the 11 supplier data categories. A list of 

all the data elements in each category, 

by subpart, is provided in a 

memorandum (see Memorandum ‘‘Data 

Category Assignments for Reporting 

Elements’’ in Docket EPA–HQ–OAR– 

2009–0924 and the Web site (http:// 

www.epa.gov/climatechange/emissions/ 

ghgrulemaking.html). 

2. The Greenhouse Gases Reported 

Category 

EPA proposes to determine that 

certain supplier GHG quantity data 

elements at the facility level (or 

importer/exporter level or LDC level for 

the subparts that require those entities 

to report) are not CBI under CAA 

section 114(c), but that most of the 

product-specific GHG quantity data are 

CBI. Some data elements in this 

category do not qualify as CBI because 

they are already publicly available. For 

reported GHG quantity data that are 

determined to be CBI, EPA intends to 

release such data only at aggregated 

levels. 

Description of the Data Elements. 

Under Part 98, suppliers of fuel 

products, industrial GHGs, and CO2 are 

required to report the annual quantity of 

each GHG that would or could be 

emitted from the complete combustion, 

oxidation, or use (i.e., 100 percent 

release) of the products they supply to 

the economy in a calendar year. These 

data elements are required under 40 

CFR part 98, subpart A and the subparts 

of Part 98 that are applicable to 

suppliers. This data category also 

includes CO2 data reported under 

proposed 40 CFR part 98, subpart RR 

(Injection and Sequestration of CO2) (75 

FR 18576, April 12, 2010), including the 

quantities of CO2 received, produced, 

and injected for geologic sequestration 

facilities. Examples of the data elements 

in this category include the following: 

• Total quantity of CO2e (metric tons) 

aggregated for all GHGs from all 

applicable supply categories for the 

calendar year. This is the CO2e that 

would or could result from complete 

combustion or use of fuel products or 

industrial GHGs supplied in a calendar 

year (40 CFR part 98, subpart A). 

• Quantity of each GHG from each 

applicable supply category (40 CFR part 

98, subpart A). 

• CO2 quantities that would be 

emitted from the complete combustion 

of each coal-based liquid fuel, each 

petroleum product, or each natural gas 

liquid supplied (40 CFR part 98, 

subparts LL, MM, NN) in a calendar 

year. Examples of individual products 

would be the different types and grades 

of gasoline, distillate fuel oils, 

petrochemical feedstocks, and other 

products supplied by a refinery as listed 

in Table MM–1 of 40 CFR part 98, 

subpart MM. 

• CO2 quantities that would be 

emitted from complete combustion of 

each coal-based liquid fuel or petroleum 

product imported and exported (40 CFR 

part 98, subparts LL and MM) in a 

calendar year. 

• CO2 quantities associated with 

annual volumes of natural gas received 

by LDCs, put into storage, withdrawn 

from the storage system, and delivered 

to transmission pipelines or end users 

(40 CFR part 98, subpart NN). 

• Mass of each fluorinated gas and 

N2O produced and destroyed by 

industrial GHG producers; mass of each 

industrial GHG imported or exported 

(40 CFR part 98, subpart OO). 

• Mass of each fluorinated gas 

imported or exported in pre-charged 

equipment or closed-cell foams 

(proposed 40 CFR part 98, subpart QQ, 

75 FR 18652, April 12, 2010). 

• Mass of CO2 imported, exported, or 

supplied by a producer (40 CFR part 98, 

subpart PP). 

• Mass of CO2 received, produced 

and injected for geologic sequestration 

(proposed 40 CFR part 98, subpart RR, 

75 FR 18576, April 12, 2010). 

Rationale for the Proposed 

Determination. Table 4 of this preamble 

describes the data elements in the 

supplier category subparts in Part 98 

that fall in the Greenhouse Gas Reported 

Category. Table 4 also indicates EPA’s 

proposed determination of the 

confidential status of such data. 


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TABLE 4—PROPOSED CBI DETERMINATION AND LEVEL OF RELEASE FOR GREENHOUSE GASES REPORTED

Source category (part 98 subpart) Data elements Are these 

data CBI? 

If CBI, intended aggregated level of release a

Suppliers of Coal-Based Liquid Fuels and 

Petroleum Products (subparts LL and 

MM): Producers.

Total facility-level CO2e from subparts 

LL–PPb; Facility-level CO2 from each 

subpart c.

No. 

Product-specific CO2 ............................... Yes .............. Release national aggregation of CO2 by 

product d (e.g., national CO2 from No. 

6 fuel oil aggregated for all facilities in 

subpart MM that supply No. 6 fuel oil). 

Suppliers of Coal-Based Liquids and Petroleum Products (subparts LL and 

MM): Importers.

Total importer level CO2e from subparts 

LL–PPb; Importer level CO2 from each 

subpart c; Product-specific CO2.

No. 

Suppliers of Coal-Based Liquids and Petroleum Products (subparts LL and 

MM): Exporters.

Total exporter level CO2e from subparts 

LL–PP; Exporter level CO2 from each 

subpart c.

No. 

Product-specific CO2 ............................... Yes .............. Release national aggregation of CO2 by 

product (e.g., national CO2 from No. 6 

fuel oil aggregated for all companies 

that export No. 6 fuel oil). 

Suppliers of Natural Gas and NGLs (subpart NN): LDCs.Total LDC-level CO2e from subparts LL 

through PP; LDC-level CO2 from subpart NN c; Product-specific CO2.

No. 

Suppliers of Natural Gas and NGLs (subpart NN): Fractionators.Total Facility-level CO2e from subparts 

LL through PP; Facility-level CO2 from 

subpart NN c.

No. 

Product-specific CO2 ............................... Yes .............. Release national aggregation of CO2 by 

product (e.g., national CO2 from propane aggregated for all facilities that 

supply propane). 

Suppliers of Industrial GHGs (subpart 

OO): Producers.

Total facility-level CO2e from subparts LL 

through PPb.

No.e

Facility-level GHG quantities, by gas, 

from subpart OO; Product-specific 

GHG quantities.

Yes .............. Release national aggregation, by GHG 

and product aggregated for all facilities 

covered by subpart f (e.g., national 

N2O quantity from all facilities producing N2O). 

Suppliers of Industrial GHGs (subpart 

OO): Importers and Exporters.

Total importer/exporter level CO2e from 

subparts LL through PP.

No. 

Importer/exporter level GHG quantities, 

by gas, from subpart OO; Product-specific GHG quantities.

Yes .............. Release national aggregation, by GHG 

and product aggregated, for all facilities covered by subpart OO (e.g., national N2O quantity from all facilities 

importing or exporting N2O). 

Suppliers of CO2 (subpart PP): Producers Annual mass or volume of CO2 by each 

flow meter.

No. 

Total facility-level CO2e from subparts LL 

through PPb.

No. 

Suppliers of CO2 (subpart PP): Importers 

and Exporters.

Total importer/exporter level CO2e from 

subparts LL through PP; Facility-level 

CO2 from subpart PP.

No. 

Injection and Sequestration of CO2 (proposed subpart RR, 75 FR 18576, April 

12, 2010).

Annual mass or volume of CO2 injected 

measured by each flow meter.

No. 

Annual mass or volume of CO2 transferred onsite or produced measured by 

flow meter.

Yes .............. Aggregated data released at the facilitylevel. 

Facility-level data on CO2 received, produced, and injected.No. 

Importers and Exporters of Fluorinated 

Greenhouse Gases Contained in Precharged Equipment or Closed-cell 

Foams (proposed subpart QQ) (75 FR 

18652, April 12, 2010). 

Total importer/exporter level CO2e from 

subparts LL through PP.

No. 

Importer/exporter level GHG quantities, 

by gas, from subpart QQ.

Yes .............. Release national aggregation, by GHG 

for all facilities covered by subpart QQ. 

aEPA could release supplier data aggregated in a number of different ways without revealing confidential data for individual suppliers. EPA solicits suggestions on alternative approaches to aggregating data elements in this category and comments on the extent to which aggregated data 

are useful to the public. bThis data element, reported under 40 CFR part 98, subpart A, represents the aggregation of CO2e from all supplier source categories at the 

facility. For example, if a refinery supplies petrochemical products (40 CFR part 98, subpart MM) and is also a CO2 supplier (40 CFR part 98, 

subpart PP) the facility-level CO2e would represent the CO2e for both activities combined. cThis 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. 


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d National aggregation would be released only if there are three or more reporters. 

e In cases where a facility produces a single product, this data element will be held as CBI. 

fFor 40 CFR part 98, subpart 00, national aggregation would be released only for products where there are three or more reporters. 

As shown in Table 4 of this preamble, 

EPA proposes to determine that the 

reported facility-level or importer/ 

exporter-level CO2e quantities, and the 

facility-level or importer/exporter-level 

CO2 quantity by supply category are not 

CBI because the release of these data 

elements is unlikely to cause substantial 

harm to suppliers reporting these data 

elements. These data elements represent 

the aggregated emissions from a mixture 

of products supplied to the economy by 

each supplier. With the exception of 

some industrial GHGs suppliers 

described below, fuel and industrial 

GHG suppliers produce, import, or 

export a number of different products 

for sale or delivery. The disclosure of 

these suppliers’ facility-level CO2e and 

CO2 could not be used to back-calculate 

and reveal annual production rates of 

particular products or industrial gases 

or other sensitive information. 

Therefore, release of these data is not 

likely to harm the competitive positions 

and market strategies of reporting 

entities. 

As noted in the footnote in Table 4 of 

this preamble, in cases where suppliers 

of industrial GHGs produce a single 

product, GHG quantities would be 

considered CBI because they could be 

used to back-calculate production rates 

of particular products or other sensitive 

information. 

For suppliers (other than importers of 

coal-based liquid fuels and petroleum 

products, LDCs, and suppliers of CO2), 

EPA proposes to determine as CBI 

reported facility and importer/exporterlevel product-specific GHG data. 

Facility-level GHG quantities associated 

with each individual fuel product a 

petroleum refiner supplied (e.g., each 

type or grade of gasoline, fuel oil, or 

other products supplied by a refinery) 

would be considered CBI. Similarly, we 

would consider as CBI the GHG 

quantities for each individual gas 

supplied by a supplier of industrial 

GHGs. For CO2 injection and 

sequestration facilities, facility and flow 

meter-specific data on the amount of 

CO2 received by or produced at a facility 

would be considered CBI. EPA finds 

that disclosure of these product-specific 

GHG data described above could likely 

cause substantial harm to the 

competitive position of the suppliers 

required to report these data elements 

under Part 98. For example, facility 

GHG information at the product level 

could be used to back-calculate a 

facility’s or company’s production rates, 

which EPA has determined are entitled 

to confidential treatment. See the 

supplier ‘‘Production/Throughput 

Quantity and Composition’’ category 

discussion in Section II.D.3 of this 

preamble for the complete explanation 

of why production data are CBI and the 

types of harm likely to be caused by 

releasing data that reveal the amount of 

product a facility or company produces 

and supplies. 

For fuels (40 CFR part 98, subparts 

LL, MM and NN), GHG emissions are 

closely related to the carbon content of 

the fuel and are generally calculated as 

an emission factor times the amount of 

a fuel product produced. 40 CFR part 

98, subparts MM and NN provide 

default emission factors, so if the GHG 

associated with a particular fuel product 

is released, competitors could calculate 

the amount of fuel product a facility 

supplies. For industrial GHG producers, 

each GHG is a product, so release of 

GHG data by product equates to direct 

release of the quantity of each product 

supplied. 

As mentioned earlier in this section, 

there are four product-specific GHG 

data, disclosed at the reported level, that 

are not considered CBI. The reasons for 

these exceptions are as follows: 

1. EPA does not consider CO2 quantities 

that importers of petroleum products and 

coal-based liquids must report by product at 

the importer-level to be CBI. The EIA already 

releases the quantity of each petroleum 

product and coal-based liquids imported. 

Therefore, these product quantities are 

already in the public domain. 

2. EPA does not consider the CO2

quantities to be reported by product at the 

individual LDC level to be CBI. The EIA 

already releases the quantities of products 

distributed by LDCs. LDCs are defined in 40 

CFR part 98, subpart NN as entities that are 

regulated as separate operating companies by 

State public utility commissions or operated 

as independent municipally-owned 

distribution systems. As such, LDC data 

related to rates and distribution quantities are 

already in the public domain. 

3. EPA does not consider facility-level CO2

quantity by product for suppliers of CO2 to 

be CBI because much of this data is already 

available in the public domain. For this 

category, the CO2 quantity reported by each 

supplier is the same as their CO2 production 

(or import or export). See the supplier 

‘‘Production/Throughput Quantities and 

Composition’’ category in Section II.D.3 of 

this preamble for the explanation of why 

release of CO2 supplier product quantities is 

not likely to cause competitive harm and is 

not entitled to confidential treatment. 

4. EPA does not consider facility-level CO2

injection data by CO2 injection and geologic 

sequestration facilities to be CBI because 

much of this data is already available in the 

public domain. For this category, the CO2

quantity injected by each facility is the same 

as their CO2 throughput data. See the 

supplier ‘‘Production/Throughput Quantities 

and Composition’’ category in Section II.D.3 

of this preamble for the explanation of why 

release of CO2 injection quantities is not 

likely to cause competitive harm and is not 

entitled to confidential treatment. 

While EPA proposes to determine 

product-specific GHG data at the facility 

and importer/exporter level to be CBI 

(other than the four exceptions 

described above), EPA proposes to 

aggregate these GHG data, by gas, for 

each product and release the aggregated 

data by source category as shown in 

Table 4 of this preamble. For example, 

EPA would release the CO2 associated 

with the total amount of each grade of 

gasoline, fuel oil, etc. supplied by all 

producers of petroleum products 

combined. As another example, EPA 

would also release the total amount of 

each GHG supplied in the U.S. by all 

suppliers of industrial gases in cases 

where the gas is produced at three or 

more facilities. Release of the aggregated 

data, which disclose the GHG associated 

with total national supply of a product, 

is not likely to cause substantial harm 

to the competitive position of 

businesses because competitors could 

not determine the products or quantities 

produced by an individual facility or 

corporation from this national level of 

data. 

EPA solicits comments on the extent 

to which aggregated data are useful to 

the public. EPA also solicits comments 

on the aggregation approach described 

above or suggestions on alternative 

approaches to aggregating data for this 

data category. 

Summary. EPA proposes to determine 

that CO2e quantities reported by 

suppliers of petroleum products, coalbased liquids, natural gas, natural gas 

liquids, industrial GHGs, and CO2 are 

not CBI under CAA section 114(c). EPA 

proposes to determine that the CO2

quantities reported at the facility or 

importer/exporter-level are CBI, with 

four exceptions described above (which 

are determined to be non-CBI). EPA 

proposes to determine that CO2

quantities reported by importers of 

petroleum products and coal-based 

liquids, CO2 quantities reported by 

LDCs, and CO2 quantities reported by 

suppliers CO2 are not CBI. EPA solicits 

comments on the proposed 

determinations, including whether the 

data category determinations are 


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appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

3. The Production/Throughput 

Quantities and Composition Category 

EPA proposes to determine to be CBI 

under CAA section 114(c) facility-level 

production/throughput quantity and 

composition data for most suppliers 

except for the following: (1) Facilitylevel or importer/exporter-level data for 

suppliers of CO2, (2) natural gas LDCs, 

(3) and importers of petroleum 

products. Some data elements in this 

category do not qualify as CBI because 

they are already publicly available. EPA 

proposes to determine that the data 

elements listed above are not CBI. 

Description of data elements. The 

GHG Reporting Rule requires suppliers 

to report production and throughput 

quantities and product compositions 

(including products produced, 

imported, or exported). Suppliers are 

required to report production/ 

throughput data at the product-specific 

level (e.g., suppliers of petroleum 

products report the annual quantity of 

each petroleum product imported, 

exported, or leaving the refinery). 

Importers and exporters report the 

amount of each product imported and 

exported. Producers report the amount 

produced, sold, or delivered. 

Composition refers to information about 

the product make-up such as the 

fraction of the product that is derived 

from fossil fuels or the molecular 

components of a product, such as 

carbon share (the percent of total mass 

that carbon represents in a product). 

The data elements included in this 

category vary by supplier source 

category. The following list provides 

examples of the types of data included 

in this category. 

Under 40 CFR part 98, subpart LL, 

suppliers of coal-to-liquids (CTLs) 

products must report: 

• Annual quantity of each product 

listed in Table MM–1 of 40 CFR part 98, 

subpart MM that leaves the CTL facility. 

• Percent of the volume of each 

product that is petroleum-based. 

Under 40 CFR part 98, subpart MM, 

suppliers of petroleum products must 

report: 

• Annual quantity of each petroleum 

product and natural gas liquid (NGL) 

that leaves the refinery. 

• Annual quantity of each product 

and NGL imported or exported. 

• Percent of the volume of each 

petroleum product or NGL that is 

petroleum-based (when petroleumbased products are blended with 

biomass based products). 

• Carbon share and density of 

products produced, imported, or 

exported. 

Under 40 CFR part 98, subpart NN, 

suppliers of natural gas and NGLs (NGL 

fractionators and LDCs) must report: 

• Annual quantity of ethane, propane, 

normal butane, isobutane, and 

‘‘pentanes plus’’ products they supply. 

• Annual quantity of propane that the 

NGL fractionator odorizes at the facility 

and delivers to others. 

Under 40 CFR part 98, subpart OO, 

suppliers of industrial GHGs must 

report: 

• Annual quantity of nitrous oxide or 

each fluorinated GHG that was 

produced. 

• Throughput information including 

the total mass of the reactants, byproducts, and wastes permanently 

removed from each fluorinated GHG or 

nitrous oxide production process. 

• Annual quantity of nitrous oxide or 

each fluorinated GHG that was sold or 

transferred for transformation and 

destruction. 

• Annual mass of nitrous oxide or 

each fluorinated GHG that was imported 

or exported in bulk. 

• Commodity code of the fluorinated 

GHGs or nitrous oxide shipped. 

Under proposed 40 CFR part 98, 

subpart QQ (75 FR 18652, April 12, 

2010), suppliers, importers and 

exporters of pre-charged equipment and 

closed cell-foam products must report: 

• Quantity of the fluorinated GHG 

contained in the foam in each appliance 

imported or exported. 

• Number of each type of appliance 

containing closed-cell foam imported or 

exported. 

• Density of the fluorinated GHG 

contained in closed cell-foams that are 

not inside of appliances. 

• Quantity of foam imported or 

exported for each type of closed-cell 

foam. 

Under 40 CFR part 98, subpart PP, 

suppliers of CO2 must report: 

• Annual mass of CO2 imported or 

exported. 

• Aggregated annual quantity of CO2

that is transferred off site for various 

end use applications (e.g., greenhouse 

uses for plant growth, research and 

development). 

Under proposed 40 CFR part 98, 

subpart RR, facilities must report: 

• Annual mass of CO2 received. 

• Annual mass of CO2 produced 

onsite. 

• Annual CO2 injected. 

• Annual CO2 sequestered in 

subsurface geologic formations. 

• Cumulative mass of CO2 reported as 

sequestered in the subsurface geologic 

formation in all years since the reporter 

began reporting. 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in the 

supplier production/throughput 

quantity and composition data category, 

with the exception of certain data 

elements that are already publicly 

available, are CBI under CAA section 

114(c). Table 5 of this preamble shows 

the levels at which supplier production/ 

throughput data are reported under each 

subpart, which data would be 

considered CBI, and which data are 

already publicly available and therefore 

not considered CBI. For data that EPA 

proposes to consider CBI, the table 

indicates the level of aggregation at 

which EPA would release the data. 

TABLE 5—PROPOSED CONFIDENTIALITY DETERMINATION AND LEVEL OF RELEASE FOR SUPPLIER PRODUCTION AND

THROUGHPUT DATA

Source category (part 98 subpart) Level reported 

Are these 

data CBI a

(Y/N)? 

If CBI, proposed aggregated level of 

release b

Suppliers of Coal-Based Liquid Fuels and 

Petroleum Products (Subparts LL and 

MM): Producers.

Facility level, by product .......................... Yes .............. Release national aggregation, by product.c d

Suppliers of Coal-Based Liquids and Petroleum Products (Subparts LL and 

MM): Importers.

Importer level, by product ........................ No. 

Suppliers of Coal-Based Liquids and Petroleum Products (Subparts LL and 

MM): Exporters.

Exporter level, by product ........................ Yes .............. Release national aggregation, by product. 


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TABLE 5—PROPOSED CONFIDENTIALITY DETERMINATION AND LEVEL OF RELEASE FOR SUPPLIER PRODUCTION AND

THROUGHPUT DATA—Continued 

Source category (part 98 subpart) Level reported 

Are these 

data CBI a

(Y/N)? 

If CBI, proposed aggregated level of 

release b

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 .............. Release national aggregation, by product. 

Suppliers of Industrial GHGs (Subpart 

OO): Producers.

Facility level, by fluorinated GHG ............ Yes .............. Release national aggregation, by 

fluorinated GHG.e

Facility level throughput f information, by 

process.

Yes .............. N/A.g

Suppliers of Industrial GHGs (Subpart 

OO): Importers and Exporters.

Importer and Exporter level, by 

fluorinated GHG.

Yes .............. Release national aggregation, by 

fluorinated GHG. 

Suppliers of CO2 (Subpart PP): Producers 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 (PP): Importers and Exporters.Importer and Exporter level total CO2 imported/exported.No. 

CO2 mass or volume measured by flow 

meter, scales and weigh bills.

Yes .............. Release Importer/exporter level aggregation. 

Importer and Exporter level annually aggregated production information, by 

end use application.

No. 

Importers and Exporters of Fluorinated 

Greenhouse Gases Contained in Precharged Equipment or Closed-cell 

Foams (proposed subpart QQ, 75 FR 

18652, April 10, 2010).

Importer and Exporter level production 

information, by pre-charged equipment, closed-cell foam, and appliance 

containing closed-cell foam.

Yes .............. Release national aggregation, by precharged equipment, closed-cell foam, 

and appliance containing closed-cell 

foam. 

Injection and Geological Sequestration of 

CO2 (Proposed Subpart RR, 75 FR 

18576, April 12, 2010).

Annual mass or volume of CO2 injected 

measured by each flow meter.

No. 

Annual mass or volume of CO2 transferred onsite and produced measured 

by each flow meter.

Yes .............. Aggregated data released at the facilitylevel. 

Facility-level data on CO2 received, produced, and injected.No. 

aProduction/throughput data are reported by product. 

bEPA could release supplier data aggregated in a number of different ways without revealing confidential data. EPA solicits suggestions on alternative approaches to aggregating data for this data category and comments on the extent to which aggregated data are useful to the public. cProduct-specific data submitted by individual reporters is entitled to confidential treatment. The data will be aggregated and released only at 

the national level, by source category and product (e.g., national production of No. 6 fuel oil aggregated for all facilities in 40 CFR part 98, subpart MM that supply No. 6 fuel oil). dFor 40 CFR part 98, subpart LL, national aggregation will be released only if there are three or more reporters. 

eFor 40 CFR part 98, subpart OO, national aggregation would be released only for products where there are three or more reporters. fThroughput information includes the total mass of the reactants, by-products, and wastes permanently removed from each fluorinated GHG or 

nitrous oxide production process. g Not applicable. Given the diversity of by-products, wastes, and reactants removed from different processes and facilities, it is not feasible to 

provide a national aggregation by product. 

As shown in Table 5 of this preamble, 

EPA proposes to determine to be CBI 

reported facility level and importer/ 

exporter level production and 

throughput quantity and composition 

data, and release it only in aggregated 

form, for the following reporters: 

• Producers of CTLs and petroleum 

products (40 CFR part 98, subparts LL 

and MM). 

• Exporters of CTLs and petroleum 

products (40 CFR part 98, subparts LL 

and MM). 

• NGL fractionators (40 CFR part 98, 

subpart NN). 

• Producers of industrial GHGs (40 

CFR part 98, subpart OO). 

• Importers and exporters of 

industrial GHGs (40 CFR part 98, 

subpart OO). 

• Importers and exporters of 

fluorinated greenhouse gases contained 

in pre-charged equipment or closed-cell 

foams (proposed 40 CFR part 98, 

subpart QQ, 75 FR 18652, April 12, 

2010). 

Disclosure of these data would likely 

cause substantial harm to the 

competitive positions of businesses 

reporting these data. Releasing these 

data could be detrimental to the 

operational and marketing strategies of 

the reporting parties. For example: 

• The disclosure of annual production 

quantities of products (i.e., quantities sold 

and/or delivered), used in conjunction with 

other publicly available data related to 

capacity (e.g., EIA publishes facility-level 

capacity data for refineries), could provide 

insight to a firm’s operational strengths and 

weaknesses. Competitors could determine at 

what percent capacity a firm is operating, 

which can reveal information on the 

financial and competitive strength of the 

firm. For example, it could reveal that a 

manufacturer is operating well below 

capacity and likely experiencing financial 

difficulties. Having such information could 

allow competitors to narrow the competition 

by adjusting their prices to the further 

detriment of the reporting company, or to 

formulate other competitive strategies or 


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corporate acquisition strategies to the 

detriment of the reporting company. Having 

information on the percent of capacity at 

which a firm is operating could also reveal 

whether a manufacturer has existing capacity 

available to take on new customers in a 

growing market or is already at their 

maximum production and would need to 

invest capital to expand capacity in order to 

produce more. Having such information 

could give competitors insights to make 

competitive decisions on expanding their 

own production rates or altering their pricing 

strategies to the detriment of the reporting 

company. 

• The disclosure of annual production 

quantities and compositions—in particular, 

products sold or delivered—provides insight 

into a firm’s market strength and position. 

Competitors could use production quantity 

data (i.e., quantities sold and/or delivered) to 

gain a competitive advantage over a firm by 

better approximating a firm’s market share. 

For example, annual production data may 

reveal whether a firm is experiencing rapid 

growth or decline in market share. The data 

may also reveal the reporting supplier’s 

customer base and marketing strategies. It 

might enable firms to determine which of 

their competitors won a contract/new 

customer for which they competed. This 

could substantially harm the firm’s 

competitive position because the information 

could enable competitors to devise strategies 

to steal specific customers or even key 

employees. Changes in the mix of products 

produced could reveal marketing strategies. 

In many cases, an accurate estimate of the 

market position of a firm is difficult to 

procure, and the disclosure of such 

information through the GHG Reporting Rule 

could harm the competitive position of 

reporting parties. 

• Disclosure of facility-level production/ 

throughput quantities and product 

compositions could give competitors insight 

into a firm’s local and regional market 

conditions and expansion plans, enabling 

competitors to devise strategies to prevent 

expansion and to steal market share in 

specific locations. In general, competitors do 

not currently have access to actual facility 

production rates or other information (i.e., 

financial information) that could allow them 

to assess competition and market conditions 

in regional detail, because publicly available 

financial and economic information is 

released at the corporate level rather than the 

facility level. 

• Information about production quantities 

and product composition may allow 

competitors to reasonably infer the types and 

approximate amounts of feedstocks or raw 

materials consumed. This may enable 

competitors to devise strategies to compete 

for resources. If in addition to production 

quantities, raw materials consumption data 

reported under the GHG Reporting Rule were 

also released, competitors could use the 

combination to expose sensitive information 

such as operating efficiencies (amount of 

product produced per unit of raw material 

consumed) and allow competitors to infer 

production costs and pricing structures. 

As shown in Table 5 of this preamble, 

EPA proposes that the following data 

elements are not CBI: 

• LDC-level production/throughput 

quantity and composition data reported 

by natural gas LDCs (40 CFR part 98, 

subpart NN). 

• Importer-level data on quantities 

and compositions of products imported 

by CTL and petroleum product 

importers (40 CFR part 98, subparts LL 

and MM). 

• CO2 production/throughput data 

reported by CO2 producers and at the 

importer or exporter level by importers, 

and exporters of CO2 (40 CFR part 98, 

subpart PP). 

• CO2 injection data reported by CO2

injection and geologic sequestration 

facilities (proposed 40 CFR part 98, 

subpart RR, 75 FR 18576, April 12, 

2010). 

EPA is proposing that the LDC-level 

production/throughput data collected 

under 40 CFR part 98, subpart NN and 

the importer-level data for petroleum 

products collected from importers under 

40 CFR part 98, subparts LL and MM are 

not CBI because many of the same data 

elements from the same LDCs and 

importers are already collected and 

released annually by EIA in documents 

and databases posted on the Internet 

each year. For example, EIA collects and 

publicly releases, at the LDC and 

importer level, the quantities of natural 

gas supplied by LDCs and the quantities 

and relative densities of each product 

imported by importers of petroleum 

products and CTLs. Because the public 

already has access to these data 

elements, they are not CBI. 

While the GHG Reporting Rule 

collects some production/throughput 

data elements under 40 CFR part 98, 

subparts LL and MM that are not 

collected (and therefore not released) by 

the EIA, these data elements could be 

estimated from data released by EIA or 

from data already publicly available. For 

example, 40 CFR part 98, subparts LL 

and MM require reporting of carbon 

share if the importer chooses to use a 

particular GHG calculation method (the 

rule provides different calculation 

options). Carbon share is a product 

composition data element that is not 

collected and released by EIA. However, 

the EIA releases information on the type 

of category of product imported (e.g., 

residual fuel oil, reformulated motor 

gasoline), which could be used to 

determine the range within which the 

carbon share would fall. In addition, 

EIA collects and releases other importerlevel product composition data for 

imported petroleum products (e.g., 

sulfur content and API gravity). Carbon 

share data for imported products is 

unlikely to be any more sensitive than 

the sulfur content and API gravity data 

already released by EIA. EIA’s release of 

sulfur content and API gravity data, 

suggests that product composition data, 

including carbon share, is not 

considered to be sensitive information 

by importers of petroleum products. 

40 CFR part 98, subpart MM also 

requires importers to report the percent 

volume of each biomass-blended 

product that is petroleum-based. 

Although EIA does not publish this data 

element at the importer-level, the 

percent volume of petroleum in some 

biomass-blended products is already 

publicly available. For example, the 

percent of ethanol, and subsequently 

petroleum, in blended fuels is disclosed 

because Federal standards allow 

producers to blend only a certain 

percentage of ethanol in most gasoline 

products. Given the amount and type of 

importer-level product quantity and 

composition data already available, the 

release of these data elements, which 

are generally less sensitive in nature, is 

unlikely to cause substantial harm to the 

competitive position of importers of 

CTLs and petroleum products. 

While the GHG Reporting Rule 

collects one production/throughput data 

element from LDCs that is not collected 

and released by EIA (reporter-specific 

HHV if reporters elect not to use the 

default factor provided for calculating 

emissions), EPA has determined that it 

is not CBI for the following reason: 

LDCs as defined in 40 CFR part 98, 

subpart NN are entities that are 

regulated as separate operating 

companies by State public utility 

commissions or operated as 

independent municipally-owned 

distribution systems. As such, LDC data 

related to rates and distribution 

quantities are already public knowledge. 

Moreover, LDCs are not subject to the 

same competitive marketplace 

experienced by other supplier 

categories. They generally serve one 

area and rarely overlap their 

distribution networks with those of their 

competitors. 

Also already publicly available are 

facility-level production and throughput 

data from producers of CO2 and 

exporter/importer level data from 

importers and exporters of CO2. Only 

three States have facilities producing 

CO2 from natural wells and all three 

States currently release the data. 

Therefore, facility and flow meterspecific data from these facilities is 

already publicly available from State oil 

and gas commissions. In addition, 

facility-specific information is 

published in other Federal or State 

publications such as the Inventory of 

U.S. Greenhouse Gas Emissions and 

Sinks: 1990–2007, which is updated 

each year. For example, this inventory 


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publishes the annual amount of CO2

produced and the percentage of total 

production used for enhanced oil 

recovery (EOR) and non-EOR 

applications for two facilities currently 

producing CO2 from naturally-occurring 

CO2 reservoirs (Jackson Dome, 

Mississippi, and Bravo Dome, New 

Mexico). The amount of CO2 produced 

annually by the two facilities mentioned 

above is the same data, when aggregated 

at the facility and annual level, reported 

by suppliers of CO2 under 40 CFR part 

98, subpart PP. Since CO2 production 

data aggregated at the facility-level is 

already publicly available for producers 

of CO2, the flow meter-specific data 

reported by producers is unlikely to 

disclose additional process-specific data 

that is not already discernable from data 

that is publicly available. 

The GHG Reporting Rule requires 

suppliers of CO2 to report the amount of 

CO2 transferred to each end-use 

application. Some of this data is already 

publicly available. For example, the 

percentage of total CO2 production used 

for EOR and non-EOR applications is 

reported in the Inventory of U.S. 

Greenhouse Gas Emissions and Sinks: 

1990–2007. Additionally, the estimated 

CO2 extraction (i.e., production) data 

from power and industrial facilities 

engaged in RD&D efforts are routinely 

published and made publicly available. 

The International Energy Agency (IEA) 

provides facility-specific information 

through its online RD&D projects 

database (see the project details for the 

Great Plains Synfuels Plant (GPSP) CO2 

Capture and Compression facility). IEA 

documents include data that is the same 

or can be used to calculate data reported 

under the GHG Reporting Rule. For 

example, the daily amount of CO2

captured (i.e., produced) by three 

commercial U.S. facilities and the enduse application of the captured CO2 is 

included in the IEA project 

descriptions. The GHG Reporting Rule 

requires reporting of the annual, rather 

than daily, CO2 production and the end 

uses. However, the annual data can be 

inferred from the daily data that is 

publicly documented by IEA. Therefore 

disclosure of the annual data collected 

under the GHG Reporting Rule would 

not reveal additional information that is 

likely to cause harm to the competitive 

positions of reporters. Therefore, EPA 

proposes to determine that facility- or 

importer/exporter-level production data 

for CO2 suppliers reported under Part 98 

are not CBI because much of the data are 

already publicly available, and the 

disclosure of end use application of the 

CO2 is not likely to cause harm to the 

competitive position of CO2 suppliers 

since it does not reveal detailed 

customer information. 

For proposed 40 CFR part 98, subpart 

RR (75 FR 18576, April 12, 2010), CO2

injection data is general in nature and 

not likely to be correlated with any 

confidential commercial operations. 

Detailed data on CO2 injection flow 

rates are already reported either to EPA 

or to a State agency under EPA’s 

Underground Injection Control Program. 

Two States currently publish on their 

Web sites the data for the 48 CO2

injection facilities in their jurisdictions. 

Such publication suggests that CO2

injection data at the facility and flow 

meter-level is unlikely to be considered 

sensitive commercial information. We 

are also not aware of any competitive 

harm that has resulted from the 

disclosure of such information. We 

therefore find that the disclosure of 

these data elements is unlikely to cause 

substantial harm to a reporting 

company’s competitive position. EPA 

solicits comment on whether detailed 

CO2 injection data or any other data to 

be reported under proposed 40 CFR part 

98, subpart RR are held confidential by 

other regulatory programs. 

Summary. EPA proposes to determine 

to be CBI, under CAA section 114(c), 

facility-level production/throughput 

data for most suppliers (as listed in 

Table 5 of this preamble) because their 

disclosure is likely to cause substantial 

harm to the competitive position of the 

reporting suppliers. Data determined to 

be CBI would be released only at an 

aggregated national level (by subpart 

and by product) that would not 

compromise the confidentiality of these 

data elements, as listed in Table 5 of 

this preamble. EPA proposes that the 

following three types of production/ 

throughput data are not CBI because 

they are already publicly available: 

Facility-level and importer/exporterlevel data reported by suppliers of CO2,

LDC-level data reported by for natural 

gas LDCs, and importer-level data 

reported by importers of petroleum 

products. EPA solicits comments on the 

proposed determinations, including 

whether the data category 

determinations are appropriate as well 

as whether the appropriate data 

elements were assigned to this category. 

EPA also solicits suggestions on 

alternative approaches to aggregating 

data for this data category and 

comments on the extent to which 

aggregated data are useful to the public. 

4. The Identification Information 

Category 

EPA proposes to determine that the 

supplier identification information is 

not CBI under CAA section 114(c). 

Description of the Data Elements. 40 

CFR part 98, subpart A requires all 

suppliers subject to the rule to report 

information needed to identify 

themselves. The data elements in this 

category consist of the supplier 

identifying information specified in 40 

CFR part 98, subpart A, the proposed 

amendments to 40 CFR part 98, subpart 

A (75 FR 18455, April 12, 2010), and 

individual supplier subparts. These data 

elements include: The supplier name 

and physical street address, including 

the city, State, and zip code; the year 

and months covered by the report; the 

date of submittal of the annual report; 

importer number for the shipment (40 

CFR part 98, subpart OO); the signed 

and dated certification statement of the 

accuracy and completeness of the 

annual report, provided by the 

designated representative of the owner 

or operator; the well identification 

number (proposed 40 CFR part 98, 

subpart RR, 75 FR 18576, April 12, 

2010); name and address of U.S. parent 

company(s) and their percentage 

ownership interest in the supplier 

(proposed amendments to 40 CFR part 

98, subpart A); and NAICS codes 

(proposed amendments to 40 CFR part 

98, subpart A). 

This data category also includes 

facility and unit identification 

information submitted to EPA in BAMM 

extension requests. These data elements 

include: The facility or supplier name 

and physical address; unit identification 

numbers; number and type of units; and 

descriptions of units and monitoring 

equipment. 

Rationale for the Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

category do not qualify as CBI under 

CAA section 114(c). This information is 

not currently protected by suppliers. 

Businesses that are suppliers of fossil 

fuels and industrial GHGs make their 

identities known to potential customers 

as a part of normal business practices 

and do not take steps to prevent the 

release of this information. The 

information does not pertain to any 

sensitive business information, such as 

information on specific processes used 

at the facility or production information. 

Therefore, its disclosure is not likely to 

cause substantial harm to the reporting 

suppliers’ competitive position. 

Furthermore, identifying information for 

suppliers of various fossil fuels and 

industrial GHGs, including those subject 

to Part 98, is already collected and 

released to the public under various 

EPA and Department of Energy (DoE) 

programs. Examples include EPA’s TRI 

and DoE’s EIA periodic energy reporting 

programs. We are not aware of any 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 39125 

13Under 40 CFR part 98, subpart OO, suppliers 

must submit a one-time report that includes each 

of the data elements described above. However, if 

the efficiency of the destruction device is re-tested, 

the supplier must include that information in its 

next annual report. 

competitive harm that resulted from the 

disclosure of such information and 

conclude that this is the case as well for 

the data elements in this category. 

Summary. For the reasons described 

above, EPA proposes to determine that 

the data elements in the Supplier 

Identification Information Category are 

not CBI under CAA section 114(c). EPA 

solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

5. The Unit/Process Operating 

Characteristics Category 

This data category includes data 

elements from 40 CFR part 98, subpart 

OO (Suppliers of Industrial GHGs), 

subpart PP (Suppliers of Carbon 

Dioxide), proposed subpart QQ 

(Importers and Exporters of FluorinatedGreenhouse Gases in Pre-Charged 

Equipment or Closed-cell Foams) (75 FR 

18652, April 12, 2010), and proposed 

subpart RR (Injection and Geological 

Sequestration of Carbon Dioxide) (75 FR 

18576, April 12, 2010). EPA proposes to 

determine that one of the data elements 

under 40 CFR part 98, subpart OO is CBI 

under CAA section 114(c) and the 

remaining data elements under 40 CFR 

part 98, subparts OO and PP, and 

proposed 40 CFR part 98, subparts QQ 

and RR are not CBI. 

Description of Data Elements. The 

following data elements are included in 

this category: 

• The estimated percent 

transformation efficiency of each 

production process for the fluorinated 

GHG produced (40 CFR part 98, subpart 

OO).13

• The destruction efficiency (DE) of 

each fluorinated GHG destruction unit 

(40 CFR part 98, subpart OO).13

• The chemical identity of the 

fluorinated GHG(s) used in the 

performance test conducted to 

determine DE (40 CFR part 98, subpart 

OO).13

• Dates on which the fluorinated 

GHGs or nitrous oxide were imported 

(40 CFR part 98, subpart OO and 

proposed subpart QQ, 75 FR 18652, 

April 12, 2010). 

• Port of entry through which the 

fluorinated GHGs or nitrous oxide were 

imported (40 CFR part 98, subpart OO 

and proposed subpart QQ, 75 FR 18652, 

April 12, 2010). 

• Date on which the fluorinated 

GHGs and nitrous oxide were exported 

from the U.S. or its territories (40 CFR 

part 98, subpart OO and proposed 

subpart QQ, 75 FR 18652, April 12, 

2010). 

• Port from which the fluorinated 

GHGs and nitrous oxide were exported 

from the U.S. or its territories (40 CFR 

part 98, subpart OO and proposed 

subpart QQ, 75 FR 18652, April 12, 

2010). 

• Percent of a captured CO2 stream 

that is biomass-based (40 CFR part 98, 

subpart PP). 

• Source of the CO2 received (e.g., 

CO2 production wells, electric 

generating unit, ethanol plant, pulp and 

paper mill, natural gas processing, other 

anthropogenic source) (proposed 40 

CFR part 98, subpart RR, 75 FR 18576, 

April 12, 2010). 

• Underground injection control 

permit class (proposed 40 CFR part 98, 

subpart RR, 75 FR 18576, April 12, 

2010). 

Rationale for the Proposed 

Determination. EPA proposes to 

determine that the estimated percent 

transformation efficiency of each 

production process for the fluorinated 

GHG produced, as required under 40 

CFR part 98, subpart OO, are CBI under 

CAA section 114(c). Disclosing this data 

element, which pertains to a facility’s 

operating efficiency (amount of product 

produced per unit of raw material 

consumed), could allow a facility’s 

competitors to infer production costs 

and pricing structures, and develop 

more competitive pricing and marketing 

strategies. It may also reveal proprietary 

information about the actual 

transformation process that a facility is 

using. Therefore, disclosure of this data 

element is likely to cause substantial 

harm to the reporting business’s 

competitive position. 

EPA proposes to determine that the 

destruction efficiency of each 

fluorinated GHG destruction unit, as 

well as the chemical identity of the 

fluorinated GHG(s) used in the 

performance test conducted to 

determine the destruction efficiency 

under 40 CFR part 98, subpart OO, are 

not CBI. The destruction efficiency is 

determined by performance test and is 

used in Equation OO–4 of 40 CFR part 

98, subpart OO to calculate the mass of 

fluorinated GHGs destroyed. The 

fluorinated GHG(s) used in the 

performance test to determine the 

destruction efficiency are usually stable 

compounds that are used as surrogates 

for a broad class of other fluorinated 

compounds. Disclosing the chemical 

identity of the fluorinated GHGs used in 

the performance test and the destruction 

efficiency determined by the 

performance test do not reveal sensitive 

business information about the process, 

such as the amount of a specific product 

that is destroyed or supplied by a 

facility. Nor do they reveal the actual 

technology used for fluorinated GHG 

destruction, or the operating conditions 

for a particular technology. Therefore, 

disclosing this information would not 

likely cause substantial harm to a 

supplier reporter’s competitive position. 

The remaining data elements in this 

category are the dates and ports of 

shipments of industrial GHGs (40 CFR 

part 98, subpart OO and proposed 

subpart QQ (75 FR 18652, April 12, 

2010)), the percentage of a captured CO2

stream that is derived from biomass (40 

CFR part 98, subpart PP), and the source 

of CO2 received by injection and 

geologic sequestration facilities 

(proposed 40 CFR part 98, subpart RR, 

75 FR 18576, April 12, 2010). The dates 

of import and export shipments, and the 

ports of entry or exit under 40 CFR part 

98, subpart OO and proposed subpart 

QQ are simply the dates and ports 

through which shipments occur; they do 

not contain information regarding the 

contents of the shipment. The source of 

CO2 received by injection and geologic 

sequestration facilities identifies the 

type of source (e.g., ethanol plant), but 

does not provide specific information 

that would identify the specific facilities 

or company that supplies the CO2 to the 

facility or on the amount of CO2

provided to an individual facility or 

company. Such information does not 

reveal sensitive information related to 

operational strengths or weaknesses, 

operational capacity, customer base, 

production amounts, or market share. 

Therefore, EPA proposes to determine 

that the date of the import or export, the 

port of entry or exit, and the source of 

CO2 received are not CBI. 

For the reporting of percent of 

captured CO2 that is biomass-based 

under 40 CFR part 98, subpart PP, this 

data element is already publicly 

available and therefore not CBI. As 

discussed in the section Production/ 

Throughput Quantities and 

Composition Category (see Section 

II.D.3 of this preamble), facility specific 

information on CO2 production is 

already publicly available. Biomassbased CO2 is generally produced as a byproduct of other production processes, 

such as ethanol plants, where use of 

biomass is already commonly known. 

Summary. EPA proposes to determine 

that the estimated percent 

transformation efficiency of each 

production process for the fluorinated 

GHG produced under 40 CFR part 98, 

subpart OO is CBI under CAA section 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
39126 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

114(c). EPA proposes to determine that 

the destruction efficiency of each 

fluorinated GHG destruction unit and 

the chemical identity of the fluorinated 

GHG(s) used in the performance test 

conducted to determine the destruction 

efficiency are not CBI under CAA 

section 114(c). In addition, EPA 

proposes to determine that the date of 

import/export, port of entry/exit, and 

the percent of captured CO2 that is 

biomass-based are not CBI under CAA 

section 114(c). EPA solicits comments 

on these proposed determinations, 

including whether the data category 

determinations are appropriate as well 

as whether the appropriate data 

elements were assigned to this category. 

6. The Calculation, Test, and Calibration 

Methods for Suppliers Category 

EPA proposes to determine that the 

emission calculation methodology and 

the testing and calibration methods 

specified in Part 98 applicable to the 

suppliers of fuels and industrial GHGs 

are not CBI under CAA section 114(c). 

Description of the Data Elements. Part 

98 requires suppliers to calculate 

potential annual mass emissions (metric 

tons per year) of each GHG that would 

be emitted if supplied fuels were 

completely combusted or oxidized, or 

supplied industrial GHGs are used (i.e., 

100 percent released to the atmosphere). 

Specific calculation and measurement 

methods are contained in each supplier 

category subpart. Data elements 

included in this category are the 

methods provided in Part 98 for use by 

suppliers to calculate the GHG 

quantities to be reported. These 

methods are used to sample and analyze 

the raw materials received and products 

supplied. They are also used to measure 

the quantity of raw materials and 

products. The data collected from the 

samples and analyses (which are not 

part of this data category) are used by 

the reporter to calculate the GHG 

quantities. 

This data category also includes data 

elements submitted to EPA in BAMM 

extension requests. Examples of data 

elements in this category include the 

following: 

• The methods used by the reporter to 

measure the quantity of each product or 

raw material used in calculating 

potential emissions. 

• The methods used by the reporter to 

collect and analyze samples of raw 

material or product for density and 

carbon share. 

• The methods used by the reporter to 

develop reporter-specific values for 

HHV and GHG emission factors. 

• The methods used by the reporter to 

determine the efficiency of units used 

for fluorinated GHG destruction. 

• The methods used by the reporter to 

record the mass of fluorinated GHG 

destroyed. 

• The methods used by the reporter to 

measure the mass of fluorinated GHGs 

produced or fed into a transformation 

process, including the type of 

instrumentation used and the precision. 

• The methods used by the reporter to 

estimate the fraction of fluorinated 

GHGs fed into a transformation process 

that is actually transformed. 

• The methods used by the reporter to 

estimate the mass of fluorinated GHGs 

fed into a destruction device, to estimate 

the concentration of the fluorinated 

GHGs in the destroyed material, and the 

precision and accuracy of the methods. 

• Identification of the parameter, 

subpart, and rule citation for which a 

BAMM extension is requested (40 CFR 

part 98, subpart A). 

Rationale for the Proposed 

Determination. 

EPA proposes to determine that the 

data elements in this category are not 

CBI under CAA section 114(c). EPA 

finds that disclosure of the information 

is not likely to cause substantial harm 

to the competitive positions of suppliers 

reporting this information under Part 

98. 

These methods, many of which are 

specified in Part 98, are standardized 

methods applicable to suppliers in a 

given source category. These methods 

do not contain facility specific or 

sensitive business information, nor does 

disclosing the use of these methods by 

a reporting supplier facility reveal 

sensitive business information regarding 

the facility. For example, disclosing the 

methods used to measure material 

inputs to a manufacturing process or to 

measure the efficiencies of 

transformation or destruction processes 

would not reveal information regarding 

the actual production rates or 

efficiencies of those processes of the 

reporting facility. Also, some of the 

methods are already public information 

(e.g., the methods for sampling and 

measuring carbon content of various 

materials are published by the American 

Society for Testing and Material 

(ASTM), International Standards 

Organization (ISO), and Gas Processors 

Association (GPA)). 

Summary. For the reasons stated 

above, EPA proposes to determine that 

the data elements in this category are 

not CBI under CAA section 114(c). EPA 

solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

7. The Data Elements Reported for 

Periods of Missing Data That Are Not 

Related to Production/Throughput or 

Materials Received Category 

EPA proposes to determine that the 

data elements in this category are not 

CBI under CAA section 114(c). 

Description of the Data Elements. The 

data elements in this category include 

data to be reported when there is 

missing data (other than missing 

production/throughput and materials 

received data, the required reporting for 

which is addressed in Section II.D.10 of 

this preamble). The data elements in 

this category are as follows: 

Under 40 CFR part 98, subpart A 

(general provisions), all suppliers must 

report the following: 

• The data elements for which a 

substitute value was determined for 

missing data. 

• The total number of hours in the 

year that a missing data procedure was 

used. 

Under 40 CFR part 98, subpart NN, 

suppliers of natural gas and natural gas 

liquids (NGLs) must also report the 

number of days in the reporting year for 

which substitute data procedures were 

used to perform each of the following: 

• Measure quantity of natural gas and 

NGLs supplied to downstream facilities. 

• Develop HHVs. 

• Develop emission factors. 

Under 40 CFR part 98, subpart PP 

suppliers of carbon dioxide must also 

report the number of days in the 

reporting year for which substitute data 

procedures were used to perform each 

of the following: 

• Measure the quantity of CO2. 

• Measure the concentration of CO2

in a stream. 

• Measure the density of a CO2

stream. 

Under proposed 40 CFR part 98, 

subpart RR (75 FR 18576, April 12, 

2010), facilities report the number of 

times missing data procedures were 

used. For 40 CFR part 98, subparts LL, 

MM, and OO, suppliers report only the 

data elements listed for the Missing Data 

Category under 40 CFR part 98, subpart 

A. 

Rationale for the Proposed 

Determination. These data elements 

provide information to identify those 

data elements for which missing data 

procedures were used and the duration 

of the period for which missing data 

procedures were used. They are 

important because from these reported 

data elements, EPA and others using the 

reported data can judge the quality of 

the GHG data collected and reported by 

a supplier. 


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EPA proposes that the data elements 

in this category are not CBI because 

their disclosure would not likely cause 

substantial harm to the competitive 

positions of reporting businesses. The 

data elements in this category do not 

include the actual values that would be 

used as substitutes for missing data. 

Rather, these missing data elements 

relate only to the purpose (i.e., which 

data is missing) and duration of the use 

of the substitute data procedures listed 

in Part 98. Such information cannot be 

used to determine the amount or 

composition of a specific product being 

supplied or a specific material received, 

details about the specific production 

processes used, or any other information 

that would be considered sensitive by 

businesses. For example, the total 

number of hours during which 

substitute data was used instead of the 

measured CO2 concentration values 

required by Part 98, subpart PP, does 

not disclose the CO2 concentration of 

stream, the flow rate, or any other data 

that could be used to reveal sensitive 

information about a production process. 

Summary. For the reasons stated 

above, EPA proposes to determine that 

the data elements in this category are 

not CBI under CAA section 114(c). EPA 

solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

8. The Emission Factors Category 

EPA proposes to determine that the 

data elements in this category are CBI 

under CAA section 114(c) because their 

release is likely to cause substantial 

harm to the competitive positions of the 

suppliers reporting these data. 

Description of Data Elements. Part 98 

requires suppliers subject to 40 CFR part 

98, subparts LL, MM, and NN to use 

emission factors to calculate the CO2e 

emissions that would result from the 

complete combustion or oxidation of the 

products they supply. These suppliers 

have the option to develop product- or 

feedstock-specific emission factors. This 

category contains the calculated 

emissions factors that suppliers choose 

to develop. The data elements in this 

category are the following: 

• Calculated CO2 emission factors for 

each feedstock received and product 

produced, imported, or exported (40 

CFR part 98, subparts LL and MM). 

• Calculated CO2 emission factors for 

natural gas and each NGL product (40 

CFR part 98, subpart NN). 

These emission factor data are used to 

calculate the GHG quantities that are 

reported by suppliers under 40 CFR part 

98, subparts LL, MM, and NN. Suppliers 

report the GHG quantities (in CO2) that 

would ultimately be emitted 

(throughout the economy) from 

complete combustion or oxidation of 

each fuel product supplied. Therefore, 

these emission factors are critical for 

calculating the CO2 and CO2e quantities 

reported by suppliers. 

Rationale for the Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

category are CBI because their release is 

likely to cause substantial harm to the 

competitive positions of supplier 

businesses reporting under Part 98. 

Disclosing emission factors could harm 

the competitive advantage of firms 

because the emission factors can be 

used to back-calculate the carbon share 

of the supplier’s products and raw 

materials. Revealing carbon share 

information on products or raw 

materials could give competitors 

insights concerning product make-up, 

production processes used, the markets 

and types of customers a facility 

supplies, who they obtain raw materials 

from, and other process-specific 

information. Such information could 

allow a competitor to devise strategies 

to capture market share from specific 

firms, compete for raw material 

resources, and otherwise put the 

reporting suppliers at a disadvantage. 

See the ‘‘Production/Throughput 

Quantities and Composition’’ and the 

‘‘Amount and Composition of Materials 

Received’’ categories for suppliers in 

Sections II.D.3 and II.D.9 of this 

preamble for further rationale as to why 

EPA has concluded that information 

that could reveal production and raw 

materials information is entitled to 

confidential treatment. 

The following is an example of how 

release of emission factors could allow 

calculation of carbon share for suppliers 

subject to 40 CFR part 98, subparts LL, 

MM, and NN. The 40 CFR part 98, 

subpart MM site-specific emission 

factors are calculated as the carbon 

share of the product (percent carbon in 

the material) multiplied by the density. 

The density of many products is known 

(particularly for solid products, which 

are given a default value of ‘‘1’’) or can 

be inferred given that many products 

have densities that fall within a limited 

range. Therefore, if site-specific 

emission factors were released, and 

density is known or can be inferred, 

competitors could closely estimate the 

carbon share of a product or feedstock. 

Public disclosure of emission factors 

could therefore enable competitors to 

back-calculate carbon share and gain 

insight into the composition of products 

and feedstocks. 

Summary. For the reasons stated 

above, EPA is proposing to determine 

that the data elements in this category 

are CBI under CAA section 114(c). EPA 

solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

9. The Amount and Composition of 

Materials Received Category 

EPA proposes to determine that the 

data elements in this category are CBI 

under CAA section 114(c) because 

release of such data is likely to cause 

substantial harm to the competitive 

position of suppliers reporting these 

data under Part 98. 

Description of Data Elements. Data 

elements included in this category are 

the quantities and compositions of raw 

materials and other materials received 

by suppliers who are subject to 

reporting under 40 CFR part 98, 

subparts LL, MM, NN, and OO. Some of 

the materials received are raw materials 

that the reporter uses to produce the 

fuel products or industrial gases they 

supply into the economy (e.g., sell or 

distribute). Others are materials that are 

received and not used as raw materials 

but are instead distributed by the 

reporting supplier to other facilities that 

either use them as raw materials or fuels 

(e.g., a LDC receives natural gas and 

NGLs and blends and distributes them 

to customers rather than using them as 

a raw material to produce other 

products). This category also includes 

40 CFR part 98, subpart OO data 

elements for quantities of materials that 

are produced on site in one production 

process, and then consumed on site by 

another production process. 

The data elements in this data 

category vary by supplier source 

category. The following list provides 

examples of the types of data included 

in this category: 

• Annual quantity of each product in 

Table MM–1 of 40 CFR part 98, subpart 

MM entering the coal-to-liquid facility 

for further processing or other uses 

onsite (40 CFR part 98, subpart LL). 

• Annual quantity of each type of 

biomass that is to be co-processed with 

fossil fuel-based feedstock (40 CFR part 

98, subpart LL). 

• Carbon share and density of 

feedstocks consumed (40 CFR part 98, 

subpart LL). 

• Annual quantity of petroleum 

products or natural gas liquids (NGL) 

entering the refinery for further refining 

or for other uses onsite (40 CFR part 98, 

subpart MM). 


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39128 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

• Annual quantity of each type of 

biomass that is to be co-processed with 

petroleum feedstocks to produce a 

petroleum product (40 CFR part 98, 

subpart MM). 

• Quantity of bulk NGLs received for 

processing during the reporting year (40 

CFR part 98, subpart MM). 

• Carbon share and density of 

feedstocks consumed (40 CFR part 98, 

subpart MM). 

• Annual quantities of ethane, 

propane, normal butane, isobutane, and 

‘‘pentanes plus’’ products received from 

other NGL fractionators (40 CFR part 98, 

subpart NN). 

• Annual volume of natural gas 

received by the LDC at its city gate 

stations for redelivery on the LDC’s 

distribution system, including for use by 

the LDC (40 CFR part 98, subpart NN). 

• Total mass of each reactant fed into 

the fluorinated GHG or nitrous oxide 

production process, by process 

(Reactants include raw materials 

received) (40 CFR part 98, subpart OO). 

• Mass of N2O and each fluorinated 

GHG fed into a transformation process 

transformed at the facility, by process. 

This includes quantities of N2O and 

fluorinated GHGs that were produced at 

the facility and then consumed by a 

separate transformation process (i.e., a 

separate process that uses and entirely 

consumes these gases to manufacture 

other chemicals for commercial 

purposes) (40 CFR part 98, subpart OO). 

Rationale for the Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

data category are CBI because their 

disclosure is likely to cause substantial 

harm to the reporting suppliers’ 

competitive positions. Disclosing 

information about a facility’s annual 

amount and composition of materials 

received could harm the competitive 

advantage of firms in the following 

ways: 

• The disclosure of the amount and 

composition of materials received and fed 

into production processes at a facility could 

provide insight into sensitive details like the 

compositional characteristics of a product. 

Competitors could use this information to 

determine the chemical ratios and the 

material quantities incorporated in a product. 

Public disclosure may also reveal when a 

reporting supplier switches to a different 

material resource, potentially indicating to 

competitors that the reporting supplier has 

discovered a way to produce the same 

product at a lower cost. Competitors could 

harm the competitive position of the 

reporting party by applying the same strategy 

and/or attempt to drive up the costs of the 

material resource. 

• Information about the quantities and 

composition of materials received could 

expose a firm’s competitive and growth 

strategies. For example, a record showing a 

significant increase in consumption of a 

particular material resource may indicate to 

competitors that a firm is seeking entry into 

a new market. 

• Information about raw material 

quantities and composition could reveal 

information related to a firm’s suppliers. For 

example, Firm A depends heavily on one 

supplier for a particular resource. A 

competing firm, Firm B, could deduce this 

relationship knowing that no other major 

suppliers can provide that particular resource 

at the quantity demanded by Firm A. Firm 

B could use this information to create new 

strategies to compete for that resource. If 

Firm B is also more efficient and able to 

absorb higher costs than Firm A, Firm B 

could intentionally drive up resource costs 

and push Firm A out of business. 

• Disclosure of facility-level data on the 

quantity and composition of raw materials 

received could give competitors insight into 

a business’s local and regional market 

conditions and expansion plans, enabling 

competitors to devise strategies to prevent 

expansion and to steel market share in 

specific locations. In general, competitors do 

not currently have access to actual facilitylevel data on the quantity and composition 

of raw materials or other day (e.g., financial 

statements) that could allow them to assess 

competitive market conditions in regional 

detail, because publicly available financial 

and economic information is released at the 

corporate level, rather than the facility-level. 

• Information about the quantities and 

composition of materials received for 

processing may enable competitors to 

determine the type of manufacturing 

processes used since processes vary by the 

quantity and composition of materials used. 

This information may also allow competitors 

to reasonably infer production quantities of 

each product and the product mix of a 

facility. If in addition to raw materials 

received, production quantities data reported 

under Part 98 are also released, competitors 

could use the combination of production and 

feedstock consumption data to expose 

sensitive information such as operating 

efficiencies (amount of product produced per 

unit of raw material consumed) and allow 

competitors to infer production costs and 

pricing structures. 

Summary. For the reasons stated 

above, EPA proposes to determine that 

the data elements in this category are 

CBI under CAA section 114(c). EPA 

solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

10. The Data Elements Reported for 

Periods of Missing Data That Are 

Related to Production/Throughput or 

Materials Received Category 

40 CFR part 98, subpart OO requires 

suppliers of industrial GHGs (N2O and 

fluorinated GHGs) who are subject to 40 

CFR part 98, subpart OO to report 

numerical substitute values for 

production/throughput and materials 

received quantities and composition 

during missing data periods as well as 

other background information related to 

missing data. EPA is proposing to 

determine that the substitute values 

used to estimate such information 

during missing data periods and the 

related background information are CBI 

under CAA section 114(c). 

Description of Data Elements. Data 

elements in this category, which are 

required only in 40 CFR part 98, subpart 

OO, include the substitute values (i.e., 

the actual numerical values used in the 

calculation), the methods used to 

generate the substitute values, and other 

related information, for estimating 

production/throughput and materials 

received quantities and compositions. A 

complete list of the data elements in this 

category is as follows: 

• Reason the data were missing. 

• Length of time the data were 

missing. 

• Method used to estimate the 

missing data. 

• Estimates of the missing 

production/throughput or materials 

received data (i.e., the mass of each 

fluorinated GHG that is produced at the 

facility by process, fed into the 

production process, fed into the 

transformation process, fed into 

destruction devices, and sent to another 

facility for transformation or 

destruction). 

Rationale for the Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

category are CBI under CAA section 

114(c) because their disclosure is likely 

to cause substantial harm to suppliers 

reporting these data under Part 98. The 

data elements in this category are data 

needed to generate substitute values for 

missing production/throughput data 

(e.g., the amount of a fluorinated gas 

produced at a facility during a specified 

missing data time period) or raw 

materials consumed data (e.g., the 

amount of a gas fed into the production 

process during a specified missing data 

time period). Accordingly, these data 

elements are themselves production 

data and materials received data for the 

missing data period and their disclosure 

could divulge sensitive details about 

operational capabilities, marketing 

strategies, market share, and product 

chemistries. For a detailed explanation, 

see the ‘‘Production/Throughput 

Quantities and Composition’’ and the 

‘‘Amount and Composition of Materials 

Received’’ categories for suppliers in 

Sections II.D.3 and II.D.9 of this 

preamble. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 39129 

Summary. For the reasons stated 

above, EPA proposes to determine that 

the data elements in this category are 

CBI under CAA section 114(c). EPA 

solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

11. The Supplier Customer and Vendor 

Information Category 

EPA proposes to determine that 

information on customers and vendors 

associated with fuel and industrial GHG 

suppliers are CBI under CAA section 

114(c). 

Description of the Data Elements. 

Data elements included in this category 

are information on individual customers 

that receive fossil fuels or industrial 

GHGs from the reporting suppliers, and 

the facilities to which industrial GHGs 

are sold or transferred for 

transformation or destruction. Examples 

of data elements in this category include 

the following: 

• 40 CFR part 98, subpart NN (Suppliers 

of Natural Gas and Natural Gas Liquids) 

requires LDCs to report the annual volume of 

natural gas supplied to each meter registering 

an annual supply equal to or greater than 

460,000 Mscf per calendar year. 40 CFR part 

98, Subpart NN also requires reporting the 

customer name, address, and meter number 

of each meter registering an annual supply 

equal to or greater than 460,000 Mscf. 

• 40 CFR part 98, subpart NN also requires 

reporting (if known) the EIA identification 

number of each LDC customer. 

• 40 CFR part 98, subpart OO (Suppliers 

of Industrial Greenhouse Gases) requires 

production facilities and bulk importers to 

report the names and addresses of facilities 

to which any N2O or fluorinated GHGs were 

sent for transformation or destruction. 

• 40 CFR part 98, subpart OO and 

proposed subpart QQ (75 FR 18652, April 12, 

2010) require importers to report the country 

from which products are imported and 

exporters to report the country to which 

products were exported. 

Rationale for the Proposed 

Determination. For the following 

reasons, EPA proposes to determine that 

information on the identities of the 

customers and vendors associated with 

fuel and industrial GHG suppliers is CBI 

under CAA section 114(c). 

Suppliers of fuels and industrial 

GHGs do not release the identity of their 

customers to protect information on 

their customer base, market share, and 

similar data that could be utilized to 

deduce competitive strategies. The 

information is not reasonably available 

without the businesses consent, and 

businesses take steps to protect this 

information. 

In addition, release of this 

information is likely to cause substantial 

harm to the competitive position of the 

supplier reporters. For example, if all 

suppliers of fuels and industrial GHGs 

under a particular subpart were required 

to report their associated customers and 

vendors, and the information were 

widely available, then competitors 

could use that information to determine 

the approximate market share of each 

reporter, based on the number and 

estimated size of customers. This 

information could be used to develop 

strategies to take customers from a 

competitor. 

Likewise, if all suppliers of industrial 

GHGs under a particular subpart were 

required to report to whom they were 

sending GHGs for destruction, 

competitors could possibly determine 

information about the manufacturing 

process of the suppliers of industrial 

GHGs based on the nature of the 

services provided by the facility 

performing the destruction. 

In addition, requiring suppliers of 

industrial GHGs to identify facilities 

that destroy GHGs could reveal 

proprietary information about the 

destruction facilities’ customer base and 

market share, which could be used by 

competitors to harm the GHG 

destruction facilities competitive 

position. 

Summary. For the reasons stated 

above, EPA proposes to determine that 

information on the identities of the 

customers and vendors associated with 

fuel and industrial GHG suppliers are 

CBI under CAA section 114(c). EPA 

solicits comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

12. The Process-Specific and Vendor 

Data Submitted in the BAMM Extension 

Request Category 

EPA proposes to determine that the 

data elements in this category are CBI 

under CAA section 114(c) because the 

release of process-specific and vendor 

data submitted with the BAMM 

extension request is likely to cause 

substantial harm to competitive position 

of suppliers reporting these data under 

Part 98. 

Description of data elements. The 

data elements in this category include 

certain information submitted by 

reporters in petitions to extend the use 

of BAMM. These data elements are 

submitted once, as part of the petition, 

and are not submitted on a recurring 

basis in the annual GHG reports. The 

October 2009 final rule allowed use of 

BAMM for the first three months of 

2010. A petition process is established 

in 40 CFR 98.3(d)(2) allowing facilities 

to submit, for EPA approval, requests to 

extend the use of BAMM beyond March 

31, 2010. Similar allowances to submit 

BAMM requests are included in 

proposed rule amendments (see 75 FR 

18652, April 12, 2010 and 75 FR 18576, 

April 12, 2010). Much of the 

information required for BAMM 

requests, such as location information 

and planned dates by which full 

monitoring equipment will be installed 

are classified in other data categories. 

However, some of the petitions received 

contain detailed process design 

information, vendor and cost 

information that are not technically 

similar to other data collected through 

Part 98. Provided below are some 

examples of the data elements in this 

Category: 

• Location where each monitor will 

be installed. Process diagrams may be 

included to show specific locations. 

• Information on alternative 

monitoring equipment suppliers and 

delivery dates investigated. 

• Supporting documentation 

demonstrating that it is not possible to 

isolate the equipment and install 

monitoring instruments without a 

process unit shutdown. 

• Information on process unit 

shutdowns including frequency and 

dates of previous and planned 

shutdowns. 

Rationale for Proposed 

Determination. EPA proposes to 

determine that the data elements in this 

data category are CBI under CAA 

section 114(c). We find that disclosure 

of these process-specific and vendor 

data submitted with BAMM extension 

requests is likely to cause substantial 

harm to the competitive position of 

businesses submitting these requests 

under Part 98. Disclosure could allow 

competitors to gain insight into the 

specific processes used by the facility 

that they could use to gain a competitive 

advantage. For example: 

• The disclosure of process design 

diagrams submitted to show monitor location 

or to show that it is not possible to install 

monitoring equipment without a process unit 

shutdown could allow competitors to 

determine the type of process, specific 

equipment, and sequence of process steps 

used in the reporter’s manufacturing process. 

Such information is often proprietary, and 

public disclosure could reveal trade secret or 

sensitive information and substantially harm 

a firm’s competitive position. The process 

configuration diagrams could also be used by 

a competitor to gain insight into whether the 

facility has multiple or interconnected lines 

to produce products, likely bottlenecks, 

potential spare capacity, and flexibility to 


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39130 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

produce alternative products. This could 

provide competitors with insight into a 

petitioner’s operational strengths and 

weaknesses. Such process-specific 

information could be used to infer 

information on production costs, pricing 

structures, and the ability of a firm to 

respond to changing market conditions. 

Having such information could give 

competitors insights to make competitive 

decisions on expanding their own production 

rates or altering their pricing strategies to the 

detriment of the reporting company. 

• Information provided in the petition 

about their communications with alternative 

suppliers, delivery dates, and backorder 

notices could reveal a variety of information 

that the facility submitting the BAMM 

requests and their suppliers consider 

sensitive. For example, documentation could 

include information on the exact equipment 

being ordered and/or price quotes. This 

information could be used by competitors of 

the reporter submitting the petition to infer 

the costs the reporter is paying to comply 

with mandatory reporting rule, which is 

sensitive information. It could also be used 

by competitors of the firms supplying 

monitoring equipment quotes to undercut 

prices or offer better delivery schedules and 

gain a competitive advantage. Documentation 

pertaining to the investigation and ordering 

of monitoring equipment could also include 

specific information about the process stream 

characteristics in the process lines being 

monitored. Such information might be 

provided to a supplier to be sure the 

monitoring equipment could withstand the 

process conditions (e.g., corrosive chemicals, 

temperatures) that the monitoring equipment 

will encounter. This information could allow 

competitors to gain insight into the 

production processes used by a facility and 

assist them in formulating competitive 

strategies as described in the preceding 

paragraph. 

• Information and frequency and schedule 

for process unit shutdowns could give 

competitors an understanding of the amount 

of process downtime and insight into process 

efficiency. It could also be used to infer if 

process modifications are being made (e.g., if 

there is a long shutdown). Knowledge about 

periods when a process unit will be 

shutdown and potentially have trouble 

supplying demand for a product could allow 

competitors to develop strategies to steal 

customers during such periods. 

Summary. For the reasons stated 

above, EPA proposes to determine that 

data elements in this category are CBI 

under CAA section 114. EPA solicits 

comments on this proposed 

determination, including whether the 

data category determination is 

appropriate as well as whether the 

appropriate data elements were assigned 

to this category. 

III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), the 

proposed amendments to 40 CFR part 2 

are a ‘‘significant regulatory action’’ 

because they raise novel legal or policy 

issues. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

The proposed amendments to 40 CFR 

part 2 do not impose any new 

information collection burden. The 

amendments are administrative and do 

not increase the recordkeeping and 

reporting burden associated with Part 

98. However, the Office of Management 

and Budget (OMB) has previously 

approved the information collection 

requirements contained in the existing 

Part 98 regulations under the provisions 

of the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq. and has assigned 

OMB control number 2060–0629. The 

OMB control numbers for EPA’s 

regulations in 40 CFR are listed in 40 

CFR part 9. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of the proposed amendments on small 

entities, small entity is defined as: (1) A 

small business as defined by the Small 

Business Administration’s regulations at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. This definition of 

small entity is consistent with the 

definition of small entity used for Part 

98. 

After considering the economic 

impacts of today’s proposed 

amendments on small entities, I certify 

that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

The small entities directly regulated by 

Part 98 and affected by the proposed 

amendments to 40 CFR part 2 include 

small businesses across all sectors of the 

economy encompassed by Part 98, small 

governmental jurisdictions, and small 

non-profits. An analysis of impacts on 

small entities was conducted at 

promulgation of Part 98 and the results 

are presented in the Section VIII.C of the 

preamble to the final rule (74 FR 56369, 

October 30, 2009). That analysis found 

that there was not a significant impact 

on a substantial number of small 

entities. The proposed amendments to 

40 CFR part 2 are administrative in 

nature and do not increase the costs for 

small entities to comply with Part 98. 

Therefore, the proposed amendments do 

not have an impact on small entities. 

For discussion of EPA’s outreach/ 

consultation efforts with small entities 

on Part 98, see Section VIII of the 

preamble to the final rule (74 FR 56369). 

EPA continues to be interested in the 

potential impacts of the proposed rule 

amendments on small entities and 

welcomes comments on issues related to 

such impacts. 

D. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires Federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on State, local, and Tribal 

governments and the private sector. 

Federal agencies must also develop a 

plan to provide notice to small 

governments that might be significantly 

or uniquely affected by any regulatory 

requirements. The plan must enable 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates and must 

inform, educate, and advise small 

governments on compliance with the 

regulatory requirements. 

The proposed amendments to 40 CFR 

part 2 do not contain a Federal mandate 

that may result in expenditures of $100 

million or more for State, local, and 

Tribal governments, in the aggregate, or 

the private sector in any one year. The 

proposed amendments are 

administrative in nature and do not 

increase the costs for facilities to 

comply with Part 98. Thus, the 

proposed amendments are not subject to 

the requirements of sections 202 or 205 

of UMRA. 


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In developing Part 98, EPA consulted 

with small governments pursuant to a 

plan established under section 203 of 

UMRA to address impacts of regulatory 

requirements in the rule that might 

significantly or uniquely affect small 

governments. For a summary of EPA’s 

consultations with State and/or local 

officials or other representatives of State 

and/or local governments in developing 

Part 98, see Section VIII of the preamble 

to the final rule (74 FR 56370). 

E. Executive Order 13132: Federalism 

The proposed amendments to 40 CFR 

part 2 do not have federalism 

implications. They will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in EO 

13132. However, for a more detailed 

discussion about how Part 98 relates to 

existing State programs, please see 

Section II of the preamble to the final 

rule (74 FR 56266). 

The proposed amendments to 40 CFR 

part 2 are administrative in nature and 

apply to data reported under Part 98. 

The entities affected by Part 98 are 

facilities that supply fuel or chemicals 

that when used emit GHGs or facilities 

that directly emit greenhouses gases. 

Part 98 does not apply to governmental 

entities unless the government entity 

owns a facility that directly emits GHGs 

above threshold levels such as a landfill 

or large stationary combustion source, 

so relatively few government facilities 

would be affected. The proposed 

amendments to 40 CFR part 2 also do 

not limit the power of States or 

localities to collect GHG data and/or 

regulate GHG emissions. Thus, EO 

13132 does not apply to this rule. 

In the spirit of EO 13132, and 

consistent with EPA policy to promote 

communications between EPA and State 

and local governments, EPA specifically 

solicits comments on proposed 

amendments from State and local 

officials. For a summary of EPA’s 

consultations with State and local 

organizations and representatives in 

developing Part 98, see Section VIII of 

the preamble to the final rule (74 FR 

56370). 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

The proposed amendments to 40 CFR 

part 2 are not expected to have Tribal 

implications, as specified in EO 13175 

(65 FR 67249, November 9, 2000), 

because they are administrative in 

nature. Thus, EO 13175 does not apply 

to the proposed amendments. For a 

summary of EPA’s consultations with 

Tribal governments and representatives 

in developing Part 98, see Section VIII.F 

of the preamble to the final rule (74 FR 

56371). 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant energy 

action’’ as defined in EO 13211 (66 FR 

28355 (May 22, 2001)), because it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The proposed amendments to 40 

CFR part 2 are administrative in nature 

and therefore do not affect energy 

supply, distribution, or use. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EO 12898 (59 FR 7629 (Feb. 16, 1994)) 

establishes Federal executive policy on 

environmental justice. Its main 

provision directs Federal agencies, to 

the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the U.S. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The proposed 

amendments to 40 CFR part 2 are 

administrative in nature and therefore 

do not affect the level of protection 

provided to human health or the 

environment. 

IV. Next Steps 

EPA will summarize and respond to 

public comments on this action. EPA 

will issue a final action that will outline 

which categories of data submitted 

under Part 98 are considered to be 

emission data and must be available to 

the public pursuant to CAA section 

114(c). In addition, for categories of data 

that are not determined to be ‘‘emission 

data,’’ the final action will outline which 

data categories will be released to the 

public because they do not meet the 

criteria for confidential treatment and 

which data categories will be treated as 

confidential. 

List of Subjects in 40 CFR Part 2 

Environmental protection, 

Administrative practice and procedure, 

Reporting and recordkeeping 

requirements. 

Dated: June 28, 2010. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 2—[AMENDED] 

1. The authority citation for part 2 

continues to read as follows: 

Authority: 5 U.S.C. 301, 552 (as amended), 

553; secs. 114, 301 and 307, Clean Air Act 

(as amended) (42 U.S.C. 7414, 7601, 7607). 

Subpart B—[Amended] 

2. Section 2.301 is amended by 

revising paragraph (c) and adding 

paragraph (d) to read as follows: 


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39132 Federal Register / Vol. 75, No. 129 / Wednesday, July 7, 2010 / Proposed Rules 

§ 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. (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. 

(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 Air Act, EPA will 

notify the business in accordance with 

the procedures described in 

§ 2.205(f)(2). 

* * * * * 

[FR Doc. 2010–16317 Filed 7–6–10; 8:45 am] 

BILLING CODE 6560–50–P 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2