[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Proposed Rules]
[Pages 81366-81369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32453]



[[Page 81365]]

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Part IV





Environmental Protection Agency





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40 CFR Part 98



Call for Information: Information on Inputs to Emission Equations Under 
the Mandatory Reporting of Greenhouse Gases Rule; Proposed Rule

Federal Register / Vol. 75 , No. 247 / Monday, December 27, 2010 / 
Proposed Rules

[[Page 81366]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 98

[EPA-HQ-OAR-2010-0964; FRL-9242-8]


Call for Information: Information on Inputs to Emission Equations 
Under the Mandatory Reporting of Greenhouse Gases Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Call for Information.

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SUMMARY: EPA is publishing this call for information and public comment 
to solicit certain additional information pertaining to reporting of 
inputs to emission equations under the Mandatory Greenhouse Gas 
Reporting Rule. In response to EPA's July 7, 2010 proposed 
confidentiality determinations for data required under the reporting 
rule, EPA received several comments that warrant in-depth evaluation of 
potential harm to businesses from possible public availability of some 
of this data. The information and comment solicited by this notice will 
assist EPA as we consider a long-term approach that will balance data 
quality and transparency with the reporting businesses' need to protect 
sensitive business information.

DATES: Information and comments must be received on or before February 
25, 2011.

ADDRESSES: Submit your information and comments, identified by Docket 
ID No. EPA-HQ-OAR-2010-0964 by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#64232c233601140b16100d0a0327262d240114054a030b12"><span class="__cf_email__" data-cfemail="afe8e7e8fdcadfc0dddbc6c1c8ecede6efcadfce81c8c0d9">[email protected]</span></a>. Include Docket ID No. 
EPA-HQ-OAR-2010-0964 (and/or RIN number) in the subject line of the 
message.
    <bullet> Fax: (202) 566-1741.
    <bullet> Mail: Environmental Protection Agency, EPA Docket Center 
(EPA/DC), Mailcode 2822T, Attention Docket ID No. OAR-2010-0964, 1200 
Pennsylvania Avenue, NW., Washington, DC 20004.
    <bullet> Hand/Courier 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 information and comments to Docket ID No. 
EPA-HQ-OAR-2010-0964. EPA's policy is that all information and 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. Send or deliver 
information identified as CBI to only the mail or hand/courier delivery 
address listed above, attention: Docket ID No. EPA-HQ-OAR-2010-0964. 
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 Building, Room 3334, 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: 
<a href="/cdn-cgi/l/email-protection#b1f6f9f6e3d4c1dec3c5d8dfd6f2f3f8f1d4c1d09fd6dec7"><span class="__cf_email__" data-cfemail="4f0807081d2a3f203d3b2621280c0d060f2a3f2e61282039">[email protected]</span></a>.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic pre-publication copy of this call for information will 
also be available through the WWW. Following the Administrator's 
signature, a copy of this action will be posted on EPA's greenhouse gas 
reporting rule Web site at http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

SUPPLEMENTARY INFORMATION:
    Acronyms and Abbreviations. The following acronyms and 
abbreviations are used in this document.

CAA Clean Air Act
CBI confidential business information
CEMS continuous emission monitoring system(s)
CFR Code of Federal Regulations
EPA U.S. Environmental Protection Agency
FR Federal Register
GHG greenhouse gas
NGO nongovernmental organization
U.S. United States

    Organization of this Document. The following outline is provided to 
aid in locating information in this preamble.

I. Background
II. What is this action?
III. What specific information is EPA seeking?
    A. Specific information identifying how public availability of 
any inputs to emission equations data elements would cause harm to 
any reporter
IV. What should I consider as I prepare my information and comments 
to EPA?
    A. Submitting CBI
    B. Tips for Preparing Your Information and Comments

I. Background

    On October 30, 2009, EPA published the Mandatory Greenhouse Gas 
(GHG) Reporting Rule for collecting information regarding GHGs from a 
broad range of industry sectors (74 FR 56260). Under 40 CFR part 98 of 
the GHG Reporting Rule (hereinafter referred to as ``Part 98'') and its 
subsequent amendments, EPA will collect data from certain facilities 
and suppliers above specified thresholds. The data to be reported 
consists of GHG emissions information as well as other data, including 
information necessary to characterize, quantify, and verify the 
reported emissions. In the preamble to Part 98, we stated, ``Through a 
notice and comment process, we will establish those data elements that 
are `emissions data' and therefore [under CAA section

[[Page 81367]]

114(c)] will not be afforded the protections of CBI. As part of that 
exercise, in response to requests provided in comments, we may identify 
classes of information that are not emissions data, and are CBI'' (74 
FR 56287, October 30, 2009).
    On July 7, 2010, EPA proposed confidentiality determinations for 
Part 98 data elements and proposed amending EPA's regulation for 
handling confidential business information to add specific procedures 
for the treatment of Part 98 data (75 FR 39094; hereinafter referred to 
as the ``July 7, 2010 CBI proposal''). The July 7, 2010 CBI proposal 
proposed confidentiality statuses for the data elements for subparts 
included in the 2009 final Part 98 rule (see 74 FR 56260, October 30, 
2009), four subparts finalized in July 2010 (see 75 FR 39736, July 12, 
2010), and seven new subparts that had been proposed but not yet 
finalized as of July 2010 (see 75 FR 18576, 75 FR 18608, and 75 FR 
18652, April 12, 2010). The July 7, 2010 CBI proposal also covered 
proposed changes to the reporting requirements for some of the 2009 
final Part 98 subparts. These changes were proposed in two separate 
rulemakings (see 75 FR 18455, April, 12, 2010; and 75 FR 33950, June 
15, 2010).
    On August 11, 2010, EPA published a proposed amendment to Part 98 
to change the description of some reported data elements and require 
reporting of some new data elements (75 FR 48744; hereinafter referred 
to as the ``August 11, 2010 revisions proposal''). EPA concurrently 
issued a supplemental CBI proposal that proposed confidentiality 
determinations for the new and revised data elements included in the 
August 11, 2010 revisions notice (75 FR 43889, July 27, 2010; 
hereinafter referred to as the ``July 27, 2010 supplemental CBI 
proposal.)''
    As described in detail in the CBI proposals identified above, EPA 
grouped Part 98 data into 22 data categories (11 direct emitter data 
categories and 11 supplier data categories), with each of the 
categories containing data elements that are similar in type or 
characteristics. EPA then proposed confidentiality determinations for 
each category, with a few exceptions that are not relevant to today's 
action. Consistent with EPA's long-standing interpretation, EPA 
proposed that data elements in the inputs to emission equations data 
category meet the definition of emission data under 40 CFR 
2.301(a)(2)(i) and therefore, under CAA section 114(c), could not be 
held as confidential once they were reported to EPA.
    EPA received numerous public comments on the July 7, 2010 CBI 
proposal and the July 27, 2010 supplemental CBI proposal. Though we are 
still in the process of considering these comments, we plan to complete 
our consideration of these comments and issue final confidentiality 
determinations for the Part 98 data elements that are not inputs to 
emission equations, which constitute approximately 75 percent of the 
data elements, in a separate final action.
    However, EPA received comments that raise concerns regarding the 
public availability of data in the inputs to emission equations 
category. Almost all commenters from industry wrote that some or all 
inputs to emission equations (which include product compositions, raw 
materials used, fuel types and quantities, production volumes, and 
other process-specific information) are considered trade secrets or 
otherwise sensitive business information, and that making that 
information publicly available would cause them serious competitive 
harm. Some commenters expressed concern that public disclosure of 
production volumes and process-specific information could give 
competitors insight into sensitive operational limits and process 
capabilities. The commenters explained that, combined with other 
publicly available information, this information could give competitors 
details concerning business positions or vulnerabilities that could be 
used to a reporter's disadvantage. Some commenters stated that 
disclosure of the type, composition, and relative proportions of raw 
materials used would reveal the specific formula used to manufacture 
their products. Others expressed concern that product composition data 
reveal information about their products' performance characteristics. 
Some stated that public availability of information about the types and 
quantities of fuels consumed would reveal sensitive details about 
individual production processes' energy usage and could be used to 
estimate relative production costs.
    Several Part 98 reporters commented that, had they known that EPA 
would later propose that inputs to emission equations qualify as 
emission data that must be made available to the public under CAA 
section 114(c), they would have commented more critically and more 
extensively on Part 98 equations when they were proposed in 2009 and 
might have suggested or agreed to alternatives such as third-party 
audits or installation of continuous emission monitoring systems 
(CEMS). Several reporters wrote that they would have installed CEMS or 
otherwise changed their compliance approaches. Commenters further noted 
that, for some subparts, Part 98 allows monitoring emissions with CEMS 
as an alternative to calculation with emission equations but that, by 
the time EPA proposed CBI determinations in July 2010, reporters no 
longer could install CEMS for 2010. As a result, commenters stated, 
these reporters were locked into using the emission equations for 2010 
reporting if that was the methodology they chose. They argued that 
public availability of potentially sensitive inputs for calculation of 
2010 emissions should not be based on a reporter's decision not to 
install CEMS for 2010 when this decision was made prior to and without 
knowledge of the July 7, 2010 CBI proposal.
    EPA has reviewed these comments and has concluded that some of the 
concerns warrant more extensive evaluation of potential harm from the 
public availability of inputs to equations. To assist EPA in this 
evaluation, EPA is issuing this notice to call for certain additional 
information that the Agency has determined is necessary or helpful in 
order to evaluate and take action on the concerns described above.
    To allow EPA time to complete our evaluation and take appropriate 
actions before collecting inputs to equations, EPA is proposing in a 
separate notice to defer to March 31, 2014 the deadline for reporting 
inputs to equations. EPA is also concurrently promulgating an interim 
final rule that defers the reporting deadline for inputs to equations 
to August 31, 2011. This short-term deferral allows EPA time to 
complete the notice and comment rulemaking for the longer deferral 
while avoiding possible public availability of inputs to equations 
before EPA can evaluate and take appropriate actions regarding inputs 
to equations.

II. What is this action?

    EPA is soliciting information and viewpoints from interested 
parties on how, specifically, public availability of inputs to emission 
equations in Part 98 could cause competitive harm. We are also 
interested in information on additional approaches to calculating GHG 
emissions that do not use data elements that may be considered 
sensitive and on additional approaches to verifying reported GHG 
emission data if any inputs to emission equations are not reported to 
EPA. In addition, we are soliciting information on whether any of the 
inputs to emission equations data elements are already published or 
publicly available elsewhere,

[[Page 81368]]

discernable from publicly available information or otherwise not 
sensitive. The specific information requested is listed in Section III 
of this call for information.
    This call for information is a critical part of EPA's consideration 
of treatment of inputs. If reporters have serious concerns about inputs 
to equations information becoming publicly available, it is crucial 
that they respond in a detailed fashion to this call for information. 
The specific information received will help EPA to develop a sound, 
long-term approach that balances data quality and transparency with the 
need to protect sensitive business information. When EPA receives the 
additional requested information, we will be able to fully evaluate 
which inputs to equations, if any, could result in serious business 
harms if made available to the public. For such cases, if any, EPA 
would evaluate whether emissions can be calculated or verified using 
additional methodologies, consistent with the transparency and accuracy 
goals of Part 98. Should EPA identify any such additional 
methodologies, EPA may propose to amend Part 98 to allow these 
additional emission measurement or calculation approaches. If 
additional approaches to calculate or verify emissions are viable, EPA 
may decide that it is not necessary to collect certain highly sensitive 
inputs and propose to amend Part 98 accordingly.
    As stated in the July 7, 2010 CBI proposal preamble, EPA is 
committed to transparency in the GHG Reporting Program. We consider 
transparency important because it promotes public confidence in the 
data and enables the public, industry, NGOs, and other stakeholders to 
better understand the sources of GHG emissions and the factors that 
affect the quantities of GHGs emitted. Any approach we adopt will be 
based on a well-balanced consideration of both the importance of 
protecting certain highly sensitive data elements and our commitment to 
the GHG Reporting Program's transparency and accuracy. Should EPA 
decide that it is necessary to amend Part 98 as a result of this 
evaluation, we would promulgate any such amendment through a notice and 
comment process.

III. What specific information is EPA seeking?

    Although a few commenters on the July 7, 2010 CBI proposal 
identified specific data elements and provided supporting rationale 
regarding how the public availability of individual data elements would 
cause harm to their competitive positions, many provided only general 
statements that inputs to emission equations can be sensitive and 
should be held confidential. Other commenters noted that inputs to 
emission equations that reporters allege to be sensitive may already be 
publicly available, but did not identify specific data elements and 
where they are published. To enable us to better understand and 
evaluate stakeholder concerns and assertions, EPA requests from 
interested parties information and views on the following topics and 
questions:

    <bullet> Specific information identifying how public 
availability of any inputs to emission equations data elements would 
cause harm to any reporter.

--The identity of specific data elements used as inputs to emission 
equations that you consider sensitive business information that 
would cause competitive harm if disclosed. To better assist us in 
identifying the data element, include the rule citation for each 
data element you identify.

--For each data element identified in the above bullet, you should 
provide a specific explanation of how disclosure of the data would 
cause competitive harm. Describe the measures currently taken to 
keep the data confidential. If your concern is that competitors 
could use a particular input to discern sensitive information, 
specifically describe the pathway by which this could occur and 
explain how the discerned information would negatively affect your 
competitive position. Discuss how this data element may differ from 
similar data that is already publicly available. Describe any unique 
process or aspect of your facility that would be revealed if the 
particular data element you consider sensitive were made publicly 
available. If the data element you identify would cause harm only 
when used in combination with other publicly available data, then 
describe the other data, identify the public source(s) of this data, 
and explain how the combination of data could be used to cause 
competitive harm. Please be as specific as possible in your 
responses and include all information necessary to evaluate your 
assertions.

    <bullet> Which, if any, data that are inputs to emission 
equations are already publicly available, discernable from other 
publicly available data, or otherwise not sensitive for any 
reporter.

--In your response, please identify the manner and location in which 
each specific data element you identify is available or not 
sensitive, including a citation. If the data are physically 
published, such as in a book, industry trade publication, or Federal 
agency publication, provide the title, volume number (if 
applicable), author(s), publisher, publication date, and ISBN or 
other identifier. For data published on a Web site, provide the 
address of the Web site and identify the Web site publisher and 
content author.

    <bullet> Additional calculation or measurement approaches for a 
particular subpart that would comparably measure or calculate GHG 
emissions but would not use data elements that you consider to be 
sensitive as inputs to emission equations.

--Please provide full equations and describe your suggested 
calculation and/or measurement approach in detail. Describe the 
parameters used as inputs and explain how each input parameter could 
be measured. Indicate whether the measurement devices needed already 
exist or whether new measuring equipment would have to be installed 
and the time required for such installation. Compare the accuracy 
and cost of your proposed approach with those of the existing Part 
98 approaches and describe any unique or unusual facility-specific 
situations in which your recommended approach would not provide 
accurate estimates of GHG emissions.

    <bullet> Verification approaches that could be used to verify 
emission figures and that would not require reporting to EPA the 
specific data elements you consider sensitive.

--Under the existing Part 98 rule, EPA will use the inputs to 
emissions equations to verify reported GHG emissions. EPA solicits 
suggestions for additional approaches for verifying the GHG 
emissions for facilities that use the existing Part 98 emission 
equations. In addition, we seek suggestions for verifying, without 
reporting to EPA, sensitive inputs to emissions equations. Identify 
any additional parameters that could be used for verification and 
the particular subpart that would be affected and explain how they 
would be used. Describe any particular situations in which your 
suggested approach should or should not be used.

    EPA strongly urges any parties concerned about the public 
availability of inputs to equations to submit in detail the information 
requested above. If EPA is to seriously consider potentially revising 
the requirements of Part 98, the agency must have robust data on which 
to base those revisions. Conclusory or unsubstantiated statements will 
not suffice.
    Please note that we are not requesting additional comment on EPA's 
proposed determination in the CBI proposals described above that inputs 
to emission equations constitute emission data. EPA received comment on 
that proposed determination during the public comment period for the 
CBI proposals and will respond to those comments in a future action.

IV. What should I consider as I prepare my information and comments to 
EPA?

A. Submitting CBI

    Clearly mark the part or all of the information that you claim to 
be CBI. For CBI information in a disk or CD ROM that you mail to EPA, 
mark the outside of the disk or CD ROM as CBI

[[Page 81369]]

and then identify electronically within the disk or CD ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information marked as CBI 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    If you have any questions about CBI or the procedures for claiming 
CBI, please consult the person identified in the FOR FURTHER 
INFORMATION CONTACT section.

B. Tips for Preparing Your Information and Comments

    When submitting information and comments, remember to:
    Identify the rulemaking by docket number and other identifying 
information (e.g., subject heading, Federal Register date and page 
number).
    Follow directions. EPA may ask you to respond to specific questions 
or organize comments by referencing a CFR part or section number.
    Describe any assumptions and provide any technical information and/
or data that you used.
    If you estimate potential costs or burdens, explain how you arrived 
at your estimate in sufficient detail to allow for it to be reproduced.
    Provide specific examples to illustrate your concerns and suggest 
alternatives.
    Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    Make sure to submit your information and comments by the comment 
period deadline identified in the preceding section titled DATES. To 
ensure proper receipt by EPA, be sure to identify the docket ID number 
assigned to this action in the subject line on the first page of your 
response. You may also provide the name, date, and Federal Register 
citation.
    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 address: 
<a href="/cdn-cgi/l/email-protection#22656a657047524d50564b4c4570574e47624752430c454d54"><span class="__cf_email__" data-cfemail="195e515e4b7c69766b6d70777e4b6c757c597c6978377e766f">[email protected]</span></a>.

    Dated: December 17, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-32453 Filed 12-23-10; 8:45 am]
BILLING CODE 6560-50-P


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