**6560.50**

**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 2**

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

**RIN 2060-AQ04**

**Proposed Confidentiality Determinations for Data Required**

**under the Mandatory Greenhouse Gas Reporting Rule**

**AGENCY:** Environmental Protection Agency (EPA).

**ACTION:** Supplemental Proposal.

**SUMMARY** : This action supplements EPA’s July 7, 2010

"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". In this

action, EPA is proposing confidentiality determinations for

the data elements proposed to be added or revised in the

“Proposed Rulemaking: Revision of Certain Provisions of the

Mandatory Reporting of Greenhouse Gases Rule,” also signed

today. This action addresses only the confidentiality of

the new and revised data elements proposed in the

concurrent notice.

**DATES:** Comments. Comments must be received on or

before [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN

THE FEDERAL REGISTER], or by [INSERT DATE 45 DAYS AFTERPage 2 of 18

DATE OF PUBLICATION IN THE FEDERAL REGISTER] if a public

hearing is held (see below).

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 [INSERT DATE 7 DAYS AFTER PUBLICATION

IN THE FEDERAL REGISTER]. Upon such request, EPA will hold

the hearing on [INSERT DATE 15 DAYS AFTER PUBLICATION IN

THE FEDERAL REGISTER] in the Washington, DC area starting

at 9 a.m., local time. EPA will provide further

information about the hearing on its webpage 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 ofPage 3 of 18

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 website 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 EPAPage 4 of 18

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 GENERAL 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-mailPage 5 of 18

address: GHGMRR@epa.gov. For technical information,

contact the Greenhouse Gas Reporting Rule Hotline at:

http://www.epa.gov/climatechange/emissions/ghgrule_contactu

s.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 supplemental action affects

entities required to 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 the preamble to the “ProposedPage 6 of 18

Confidentialilty 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” (75 FR 39094).

**Acronyms and Abbreviations.** The following acronyms

and abbreviations are used in this document.

CAA Clean Air Act

CBI confidential business information

CFR Code of Federal Regulations

EPA U.S. Environmental Protection Agency GHG greenhouse gas U.S. United States

**TABLE OF CONTENTS** I. General Information A. Background B. Proposed Changes to the Part 98 Reporting Requirements C. Proposed Data Categories and Confidentiality Determinations for the Proposed New and Revised Data Elements D. Request for Comments II. Statutory and Executive Order Reviews

**I. General Information** 

A. Background

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 emitPage 7 of 18

GHGs from their processes or stationary fuel combustion

sources (“direct emitters”) as well as upstream suppliers

of fuels and industrial GHGs (“suppliers”)

. Following the publication of the proposed Mandatory

GHG Reporting Rule on April 10, 2009 (74 FR 16448), EPA

received comments both supporting and opposing the public

release of data collected under Part 98. Industry

commenters generally expressed concern that EPA would

disclose reported data that industry considers trade

secrets or confidential business information, hereinafter

collectively referred to as CBI. Other commenters favored

disclosure 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 initiated a

rulemaking to establish the confidentiality status of Part

98 data elements and procedures for handling Part 98 data.

On July 7, 2010, EPA published the “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” (75 FR 39094), herinafter

referred to as the July 7, 2010 confidentiality proposal.Page 8 of 18

Concurrent to this action, EPA signed the “Proposed

Rulemaking: Revision of Certain Provisions of the Mandatory

Reporting of Greenhouse Gases Rule” herinafter referred to

as the Part 98 amendment proposal. The Part 98 Amenedments

proposal, if finalized, would result in changes to certain

part 98 data elements. Because the July 7, 2010

confidentiality proposal was issued before the Part 98

amendment proposal, it did not address the revised and new

data elements in the amendments proposal. This action

contains EPA’s proposed confidentiality determination for

the new and revised data elements included in the Part 98

amendment proposal.

B. Proposed Changes to the Part 98 Reporting Requirements

As mentioned above, EPA proposed amendments to Part 98

that, if finalized, would make clarifying and technical

changes to reporting requirements. Proposed revisions

include allowing greater flexibility or simplified

calculation methods for certain sources, amending data

reporting requirements and definitions, and providing

technical corrections, clarifying and other amendments. The

proposed amendments include addition of new reporting

requirements and deletion of certain existing reporting

requirements.Page 9 of 18

The proposed amendments include changes to the data

elements required by 40 CFR part 98, subpart A and the

following Part 98 subparts promulgated in 2009:

 subpart C, General Stationary Fuel Combustion Sources;

 subpart D, Electricity Generation;

 subpart F, Aluminum Production;

 subpart G, Ammonia Manufacturing;

 subpart V, Nitric Acid Production;

 subpart X, Petrochemical Production;

 subpart Y, Petrochemical Production;

 subpart OO, Suppliers of Industrial Greenhouse Gases; and

 subpart PP, Suppliers of Carbon Dioxide.

After consideration of public comment, EPA intends to

issue a final action.

C. Proposed Confidentiality Determinations for the

Proposed New and Revised Data Elements

In the July 7, 2010 confidentiality proposal, EPA

described the methodology and rationale for the proposed

confidentiality determinations. To make the proposed

determinations, EPA first grouped the Part 98 data elements

into 22 data categories (11 direct emitter data categories

and 11 supplier data categories) and then proposed

confidentiality determinations on a category basis.

Exceptions to this approach were made for three of the

supplier data categories, where confidentialityPage 10 of 18

determinations were made for individual data elements

within the category rather than by category. For the list

of all 22 data categories and brief descriptions of the

data elements within each category, please see Section II.C

(for direct emitter data categories) and Section II.D (for

supplier data categories) of the July 7, 2010

confidentiality proposal.

As discussed in Section I.B of today’s supplemental

proposal, in the Part 98 amendment proposal, EPA proposed

amending part 98 to add, delete and revise certain data

elements. Today’s action contains EPA’s proposed

confidentiality determination for the proposed new and

revised data elements.

Consistent with the approach set forth in the July 7,

2010 confidentialtiy proposal, each new or revised data

element is assigned to one of the 22 data categories based

on the type and characteristics of the data element.

Because the scopes of the existing data categories are

sufficient to cover the proposed new data elements, no new

data category is proposed. For a list of the new and

revised data elements addressed in the Part 98 amendments

proposal and their assigned data categories, please see

Memorandum “Data Category Assignments for the Proposed

Revisions to the Part 98 Reporting Requirements” in DocketPage 11 of 18

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

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

As mentioned above, EPA proposed confidentiality

determinations for part 98 data on a category basis except

for three supplier categories, where confidentiality

determinations were made for individual data elements

within the category rather than by category. These three

supplier data categories are: “Greenhouse Gases Reported”,

“Production/Throughput Quantities and Composition”, and

“Unit/Process Operating Characteristics”. Except for data

elements assigned to the three supplier data caegories

listed above, EPA proposes in this supplemental notice to

apply the confidentiliaty determination (and supporting

rationales) for the data category to which the proposed new

or revised data element is assigned.

For each revised data element, EPA assesed whether the

proposed revisions to the data element changed the existing

data category assignment. The proposed changes to existing

data elements were generally minor changes to correct

referrences, clarify the reporting requirement, or simplfy

reporting. None of the proposed revisions to the existing

data elements affect the exisiting category assignments for

these data elements.Page 12 of 18

The proposed amendments to part 98 would add two new

data elements to the “Production/Throughput Quantities and

Composition” supplier data category and three new data

elements to the “Unit/Process Operating Characteristics”

supplier data category. As previously mentioned,

confidentiality determinations were proposed for individual

data elements within these categories rather than on a

category basis. Similarly, EPA evaluated individually the

confidentiality status of the proposed new data elements

assigned to these two data categories.

In the July 7, 2010 confidentiality proposal, EPA

proposed to determine that none of the Part 98 supplier

data qualify as “emission data” as that term is defined at

40 CFR 2.301(a)(i). 1 EPA then proposed CBI determinations

for supplier data by considering the confidentiality

determination criteria at 40 CFR 2.208. In particular, 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). Consistent with this approach, EPA

proposes the following CBI determinations for the proposed

new supplier data elements in the “Production/Throughput

Quantities and Composition” and “Unit/Process Operating

Characteristics” supplier data categories.

1 Section 114(c) of the CAA requires that “emission data” shall be publicly available.Page 13 of 18

One new data elements added to the

“Production/Throughput Quantities and Composition” data

category requires facilities that produce fluorinated GHGs

to report the concentration of each fluorinated GHG

contained in their products. These data would be reported

in a one-time report submitted by fluorinated GHG

production facilities by March 31, 2011. The other new

data element assigned to this data category would require

fluorinated GHG production facilities to submit a revised

report of the concentrations of fluorinated GHGs when

changes are made to the compositions of their products.

EPA proposes that these data elements be considered CBI.

Like the other product specific data elements included

this data category in the July 7, 2010 confidentiality

proposal, these two data elements would provide sensitive

information on product composition that is not already

publicly available and would likely harm the competitive

position of fluorinated GHG producers. For more detailed

rationales in support of our proposed CBI determination for

these two new data elements, please see Section II.D.3 of

the July 7, 2010 confidentiality proposal, which discusses

the ways in which product-specific production quantities

and product composition data could be used by competitors

of a reporting facility to gain insights and develop marketPage 14 of 18

strategies that would harm a the reporter’s competive

position.

The three new data elements added to the data category

for “Unit/Process Operating Characteristics” consist of the

following data elements:

 The location of the mass flow meter in the process chain in relation to the points of CO 2 stream capture, deyhdration, compression, and other processing (40 CFR part 98, subpart PP).

 The location of the volumetric flow meter in the process chain in relation to the points of CO 2 stream capture, deyhdration, compression, and other processing (40 CFR part 98, subpart PP).

 Date on which changes were made to fluorinated GHG concentrations in a product or the date on which production of a new product commenced (40 CFR part 98, subpart OO).

The location of flow meters does not provide

information on the design or operation of a facility’s

production processes or the design or operation of any CO 2

compression, dehydration, or other purification process

that may be present at the facility. Facilities are not

required to provide detailed and potentially sensitive

information about their facilities, such as descriptions or

diagrams of their processes. Rather reporters are only

required to report limited information on the location of a

flow meter in terms of its position relative to other

processes, such as the CO 2 stream capture, dehydration,Page 15 of 18

compression, and other processing. Similarly, the date on

which manufacture of a new product commenced or changes

were made to the composition of a fluorinated GHG product

does not disclose the actual composition of the product,

the raw materials used to make the product, the method of

manufacture, or the efficiency of the manufacturing

process. The manufacture of a new product and changes to

existing product lines is often publicly available through

company marking materials and other sources (e.g.,

publication or revisions to Material Safety Data Sheets).

Since the disclosure of these data elements is unlikely to

harm the competitive position of the reporter, we propose

these three data elements would not be entitled to

confidential treatment.

When finalized, the changes to the data elements may

not be exactly the same as those proposed in the Part 98

amendment proposal; however, we expect that any revisions

to data elements in the final amendment would still

logically fall into the same or another data category that

is addressed in the confidentiality proposal and would

therefore be covered by the confidentiality determination

for that data category. If the final amendments differ

from those included in the Part 98 amendment proposal, EPAPage 16 of 18

will address those changes in the final confidentiality

determination action.

D. Request for Comments

This supplemental action provides affected businesses,

other stakeholders, and the general public an opportunity

to provide comment on the proposed confidentiality

determinations for the proposed new and revised data

elements. For the proposed new and revised data elements,

we are soliciting comment on the issues raised in the July

7, 2010 confidentiliaty proposal as they apply to the new

and revised data elements addressed in the part 98

amendment proposal and this supplemental notice.

Specifically, we are soliciting comment on whether the data

category assignments for the proposed new and revised data

elements are reasonable and appropriate (i.e., whether the

proposed new and revised data elements are sufficiently

similar to the other data elements listed in their assigned

data category or whether a different data category would be

more appropriate). We are also soliciting comment on

whether the proposed confidentiality determinations for

these data elements are appropriate, whether any specific

circumstances exist that would warrant different

confidentiality determinations for these data elements, and

whether any unique circumstances exist where a limitedPage 17 of 18

process would be appropriate to re-evaluate EPA’s final

determinations for these data elements. For a list of the

proposed new and revised data elements and their assigned

data categories, please see the memorandum “Data Category

Assignments for the Proposed Revisions to the Part 98

Reporting Requirements” in Docket EPA-HQ-OAR-2009-0924 and

on the website

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

We are also interested in receiving suggestions on

appropriate formats for publishing the proposed new and

revised data elements (both CBI and non-CBI data). For

those new and revised data elements for which we propose

confidential treatment, we are soliciting suggestions for

the best methods of aggregating the data and comment on

whether publishing any of the new and revised data elements

in ranges at the facility-level would provide valuable

information that aggregated data may not convey.

In today’s notice we are soliciting comment only on

the proposed confidentiality determinations for the new and

revised data elements contained in the Part 98 amendment

proposal. We are not soliciting further comment on those

data elements in the July 7, 2010 confidentiality proposal

for which no changes are proposed in the Part 98 amendment

proposal.Page 18 of 18

**II. Statutory and Executive Order Reviews** 

The statutory and executive order reviews do not apply

to this notice because this notice does not propose any

regulatory changes. For a complete discussion of the

statutory and executive order reviews as they apply to the

proposed amendments to 40 CFR part 2, see the notice

“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” (75 FR

39094).

**List of Subjects 40 CFR Part 2**

Environmental protection, Administrative practice and

procedure, Reporting and recordkeeping requirements.

Dated:

Lisa P. Jackson, Administrator.