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 AFTER 
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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 of 
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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 EPA 
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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-mail 
 

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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 “Proposed 
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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 emit 
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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. 
 

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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. 
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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 confidentiality 
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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 Docket 
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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. 
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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 market 
	 Page 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 CO2 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 CO2 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 CO2

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 CO2 stream capture, dehydration, 
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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, EPA 
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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 limited 
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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.