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 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 

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Deleted: Confidentiality 

Determination 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

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comments on several key issues related to the proposed 

confidentiality determinations and amendment.

DATES: Comments. Comments must be received on or 

before [INSERT THE DATE 60 DAYS AFTER PUBLICATION IN THE 

FEDERAL REGISTER]. 

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.] The hearing will be held 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. 

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• 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 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 

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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 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 

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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_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 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 

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information about the public 

hearings or to register to 

speak at the hearings, 

please go to 

http://www.epa.gov/climatech

ange/emissions/ghgrulemaking

.html. 

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categories and entities include those listed in Table 1 of 

this preamble: 

Table 1. Examples of Affected Entities by Category 

Category NAICS Examples of affected facilities 

Facilities operating boilers, 

process heaters, incinerators, 

turbines, and internal combustion 

engines: 

211 Extractors of crude petroleum and 

natural gas. 

General 

Stationary Fuel 

Combustion 

Sources 

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. 

334111 Microcomputers manufacturing 

facilities. 

334413 Semiconductor, photovoltaic (solidstate) device manufacturing 

facilities. 

Electronics 

Manufacturing 

334419 LCD unit screens manufacturing 

facilities. 

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Category NAICS Examples of affected 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 562212 Solid waste landfills. 

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. 

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Category NAICS Examples of affected facilities 

211 Extractors of crude petroleum and 

natural gas. 

211112 Natural gas liquid extraction 

facilities. 

32511 Ethylene dichloride manufacturing 

facilities. 

Petrochemical 

Production 

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 322110 Pulp mills. 

Manufacturing 322121 Paper mills. 

322130 Paperboard mills. 

Silicon Carbide 

Production 

327910 Silicon carbide abrasives 

manufacturing facilities. 

325181 Alkalies and chlorine manufacturing 

facilities. 

Soda Ash 

Manufacturing 

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 562212 Solid waste landfills. 

Landfills 221320 Sewage treatment facilities. 

322110 Pulp mills. 

322121 Paper mills. 

322122 Newsprint mills. 

322130 Paperboard mills. 

311611 Meat processing facilities. 

311411 Frozen fruit, juice, and vegetable 

manufacturing facilities. 

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Category NAICS Examples of affected facilities 

311421 Fruit and vegetable canning 

facilities. 

Wastewater 322110 Pulp mills. 

Treatment 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. 

221210 Natural gas distribution 

facilities. 

Suppliers of 

Natural Gas and 

NGLs 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 

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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

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GHG Reporting Rule

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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 

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H. Executive Order 13211: Actions that Significantly 

Affect Energy Supply, Distribution, or Use 

I. National Technology Transfer and Advancement Act 

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Populations 

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 Method (BAMM) extension requests, requests for 

approval of alternative methods for adipic acid or nitric 

acid production facilities, or Monitoring, Reporting and 

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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 

 

1

The 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. 

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ensures transparency and promotes public confidence in the 

data. In an effort to promote transparency, EPA intends to 

publish on EPA’s website 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 

website or made available to the public through Freedom of 

Information Act (FOIA) requests. 

Table 2. Summary of Proposed Determinations for Direct 

Emitter Data Categories 

Proposed Confidentiality 

Determination for Data Elements in 

Each Category 

Data Category 

Emission 

Dataa

Data That 

Are Not 

Emission 

Data and 

Not CBI 

Data That 

Are Not 

Emission 

Data But 

Are CBIb

Facility and Unit 

Identifier 

Information 

X 

Emissions X 

Inputs to Emission 

Equations 

X 

Calculation 

Methodology and 

Methodological Tier 

X 

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Proposed Confidentiality 

Determination for Data Elements in 

Each Category 

Data Category 

Emission 

Dataa

Data That 

Are Not 

Emission 

Data and 

Not CBI 

Data That 

Are Not 

Emission 

Data But 

Are CBIb

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.

b

 As 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”).

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Table 3. Summary of Proposed Determinations for Supplier 

Data Categories 

Proposed Confidentiality Determinations 

for Data Elements in Each Category 

Data Category 

Emission 

Dataa

Data That Are

Not Emission 

Data and Not 

CBI 

Data That Are 

Not Emission 

Data But Are 

CBIb

GHGs reported X

c X

c

Production/throughpu

t quantities and 

composition 

X

c X

c

Identification 

information X 

Unit/process 

operating 

characteristics 

X

d

Calculation, test, 

and calibration 

methods 

X 

Data Elements 

Reported for Periods 

of Missing data that 

X 

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Proposed Confidentiality Determinations 

for Data Elements in Each Category 

Data Category 

Emission 

Dataa

Data That Are

Not Emission 

Data and Not 

CBI 

Data That Are 

Not Emission 

Data But Are 

CBIb

are not related to 

production/ 

throughput or 

materials received 

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.

b

 As 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”).

c EPA 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 

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B. The Mandatory GHG 

Reporting Rule¶

The Mandatory GHG Reporting 

Rule

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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 

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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)8. Today’s proposed action addresses the 

 

8 The 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. 

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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; 

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section 114(a). These data 

requirements are 

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21

• 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 Management9; 

• 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 

 

9 EPA 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. 

Deleted: notice

Deleted: of the Mandatory GHG 

Reporting Rule

Deleted: Draft deliberative: 

Do not cite or quote
22

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. 

(3) Data required by subparts that have recently been 

proposed or re-proposed but not yet finalized. Earlier 

this year, EPA proposed or re-proposed several source 

Deleted: have recently been 

proposed or re-proposed but 

not yet

Deleted: 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 subpart 

RR, __FR ___, date). 

Earlier this year, EPA 

proposed or re-proposed 

several source category 

Deleted: that were not 

included in the October 30, 

2009 final rule. These 

subparts are as follows: ¶

<#>subpart I, Electronics 

Manufacturing (___FR ____, 

date); ¶

<#>subpart L, Fluorinated 

Gas Production (___FR ____, 

date); ¶

<#>subpart W, Petroleum and 

Natural Gas Systems (___FR 

____, date); ¶

<#>subpart DD, Sulfur 

Hexafluoride (SF6) and 

Perfluorocarbons (PFCs) from 

Electrical Equipment at an 

Electric Power System (___FR 

____, date); ¶

<#>subpart RR, Injection and 

Geologic Sequestration of 

Carbon Dioxide (___FR ____, 

date); ¶

<#>subpart SS, Sulfur 

Hexafluoride and PFCs from 

Electrical Equipment 

Manufacture or Refurbishment

(___FR ____, date); ¶

<#>subpart QQ, Importers and 

Exporters of Fluorinated 

Greenhouse Gases Contained 

in Pre-charged Equipment or 

Closed-cell Foams (___FR 

____, date). ¶

¶

EPA expects to finalize 

these subparts in 2010. 

Today’s proposed 

confidentiality 

determination covers these 

Deleted: and expects to 

promulgate them in 201010: 

Deleted: <#>subpart J, 

Ethanol Production; ¶

<#>subpart M, Food 

Processing, ¶

Deleted: 11

Deleted: Draft deliberative: 

Do not cite or quote

... [1]
23

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 

Deleted: the 

Deleted: in these subparts 

Deleted: subparts as proposed 

in April 2009

Deleted: they were

Deleted: Draft deliberative: 

Do not cite or quote
24

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.

Deleted: notice

Deleted: Draft deliberative: 

Do not cite or quote
25

(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.

Deleted: Draft deliberative: 

Do not cite or quote
26

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 

website 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. 

Deleted: Web 

Deleted: part

Deleted: 40 CFR part

Deleted: Draft deliberative: 

Do not cite or quote
27

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 facilityspecific 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 

Deleted: over

Deleted: polices

Deleted: and the 

Deleted: calibrate

Deleted: to ensure data 

Deleted: and to gain a better 

understanding of data 

resulting from the 

calculations. 

Deleted: Draft deliberative: 

Do not cite or quote
28

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 fuelor raw-material switching. 

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 

Deleted: the Mandatory GHG 

Reporting Rule

Deleted: of the CAA

Deleted: of the CAA

Deleted: 

Deleted: Draft deliberative: 

Do not cite or quote
29

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 facilitylevel CBI data elements within numerical ranges that 

maintain the confidentiality of the actual reported values. 

Specifically, we are soliciting ocmment 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 

Deleted: (rather than 

specific 

Deleted: ) provided that the 

ranges would not divulge 

confidential information, 

and 

Deleted: on a

Deleted: provides

Deleted: CAA 

Deleted: section 114(c) 

Deleted: Draft deliberative: 

Do not cite or quote
30

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. 

Deleted: of the CAA

Deleted: 40 CFR part

Deleted: below 

Deleted: section I.D.

Deleted: part

Deleted: part

Deleted: section

Deleted: .

Deleted: .

Deleted: Draft deliberative: 

Do not cite or quote
31

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 

Deleted: of the CAA

Deleted: Draft deliberative: 

Do not cite or quote
32

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 

Deleted: ¶

Deleted: 40 CFR part

Deleted: below 

Deleted: sections

Deleted: Draft deliberative: 

Do not cite or quote
33

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 

Deleted: part

Deleted: Draft deliberative: 

Do not cite or quote
34

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 

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 

Deleted: 40 CFR part

Deleted: part

Deleted: part

Deleted: part

Deleted: Draft deliberative: 

Do not cite or quote
35

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: 

Deleted: part

Deleted: part

Deleted: 40 CFR part

Deleted: 

Deleted: part

Deleted: Draft deliberative: 

Do not cite or quote
36

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 

Deleted: Draft deliberative: 

Do not cite or quote
37

(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 

Deleted: ¶

Deleted: part

Deleted: Draft deliberative: 

Do not cite or quote
38

(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 non-CBI 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 

Deleted: D. Proposed Rule 

Amendment Addressing 

Treatment of Part 98 Data 

Elements ¶

As previously discussed, 

pursuant to 

Deleted: Draft deliberative: 

Do not cite or quote
39

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 term12 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). 

 

12 For 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).

Deleted: ), EPA must make 

available to the public data 

submitted under 40 CFR part 

98, except for data (other 

than emission data) that are 

considered confidential 

under section 114(c). 

Accordingly, EPA intends to 

release 40 CFR 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 

section 114(c) (i.e., “nonCBI”). 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 section 114(c) would 

be published on the Web site

in an aggregated format only 

if they can be aggregated in 

a manner to protect the 

confidentiality of these 

data elements (e.g., 

production data determined 

to be CBI that is aggregated 

by source category).

Deleted: 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 requests 

the Freedom of Information 

Act. 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. In 

light of the voluminous data 

EPA will receive under 40 

CFR part 98 and the multiple 

procedural steps required 

under 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 

Deleted: Draft deliberative: 

Do not cite or quote

... [2]
40

D. Rationale for Making Confidentiality Determinations 

Through This Action 

In accordance with 40 CFR part 2, subpart B, EPA 

generally makes case-by-case confidentiality determinations 

on submitted data when an entity submitting data makes a 

claim of 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-by-case 

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 

Deleted: under part 2 

subpart B is redundant and 

Deleted: Draft deliberative: 

Do not cite or quote
41

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 

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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-bycase 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 

Deleted: determining the 

confidentiality status of 

part 98 data, many of which 

share the same 

characteristics.

13

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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 

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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 

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specific community or at a 

specific 

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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 website. Data elements that we determine to be CBI 

under CAA section 114(c) would be published on the website 

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 Deleted: Draft deliberative: 

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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 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 non-CBI upon finalizing 

the confidentiality status of these data. Consistent with 

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reporting program (40 CFR 

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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 

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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 

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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 98.14 

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 

 

14 The 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. 

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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 website 

(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. 

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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 direct-emitting 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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Reporting Rule

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Reporting Rule.

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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 EPAHQ-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 

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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 

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Reporting Rule

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54

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 

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Reporting Rule

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55

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 facility-level 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. Deleted: Draft deliberative: 

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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 

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Reporting Rule

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Reporting Rule

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Reporting Rule 

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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 website 

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

tml). 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 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 

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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 

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Determinations

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GHG Reporting Rule

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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 category-specific 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., 

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60

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 

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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 

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specific community or at a 

specific

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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 

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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 term15 as well as the statutory goal behind the CAA 

section 114(c) language. More specifically, please 

specify 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 

 

15 For 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).

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please suggest what data

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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 website) 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 

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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 

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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. 

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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 

sequestration16). 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 

 

16 Leakage 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). 

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approval of alternative methods (excluding supporting 

documentation17) 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. 

 

17 EPA 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. 

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• Raw materials consumed that are not inputs to emission 

equations. 

• 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 

website 

(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 

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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 

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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) 

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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. 

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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 

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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). 

• 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). 

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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 non-merchant 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 

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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 

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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 

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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 

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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 

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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 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 byproducts 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 

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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 

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method is used.18 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 

 

18 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. 

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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 

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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 

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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 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. 

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• 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 

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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). 

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• Whether CO2 emissions were calculated using the trona 

input method, the soda ash output method, or a sitespecific 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. 

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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 sitespecific 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 

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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 (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 

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MRV Plans submitted by 

geologic sequestration 

facilities (proposed subpart 

RR, __FR__, date) and 

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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.19 Rather, this 

category includes data elements that indicate the overall 

quality and reliability of the reported GHG emissions, such 

 

19 Numeric 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). 

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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 

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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 

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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 

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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, 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 

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provided in the rule.20 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).

 

20 Note 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. 

22 Note 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 

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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 

 

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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 

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reveal specific details 

about the abatement 

technologies being used, 

such information is not 

proprietary or sensitive

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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 

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both commodity and specialty chemicals 

(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 

(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. 

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 

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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 9822. 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). 

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• 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 

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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 

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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 

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similar to

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105

preamble, the carbon content data provided by suppliers is 

included as a data element in Inputs to Equations Category, 

which EPA proposes to 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 

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106

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: 

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• 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 

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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, 

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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 

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period. This is the same type of information as the 

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 

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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). 

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• 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 

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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 

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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 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 

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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 

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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 based-raw 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. 

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• 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. 

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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 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 

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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. 

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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. 

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• 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 

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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 

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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 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 

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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). 

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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 

website 

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

tml).

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, 

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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 MM1 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). 

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Reporting Rule

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128

• 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. 

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 Releasea

Suppliers of 

Coal-Based 

Liquid Fuels 

and Petroleum 

Products 

(subparts LL 

Total facilitylevel CO2e from 

subparts LL-PPb; 

Facility-level 

CO2 from each 

subpartc

No 

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Deleted: The table

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Deleted: 25

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129

Source 

Category 

(Part 98 

Subpart) 

Data Elements Are these 

data CBI? 

If CBI, Intended 

Aggregated Level 

of Releasea

and MM): 

Producers 

Product-specific 

CO2 

Yes Release national 

aggregation of 

CO2 by productd

(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 

subpartc; 

Product-specific 

CO2 

No 

Total exporter 

level CO2e from 

subparts LL-PP; 

Exporter level 

CO2 from each 

subpartc

Suppliers of No 

Coal-Based 

Liquids and 

Petroleum 

Products 

(subparts LL 

and MM): 

Exporters 

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 

Total LDC-level 

CO2e from 

subparts LL 

No 

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130

Source 

Category 

(Part 98 

Subpart) 

Data Elements Are these 

data CBI? 

If CBI, Intended 

Aggregated Level 

of Releasea

(subpart NN): 

LDCs 

through PP; 

LDC-level CO2

from subpart NNc; 

Product-specific 

CO2 

Total Facilitylevel CO2e from 

subparts LL 

through PP; 

Facility-level 

CO2 from subpart 

NNc.

Suppliers of No 

Natural Gas 

and NGls 

(subpart NN): 

Fractionators 

Product-specific 

CO2 

Yes Release national 

aggregation of 

CO2 by product 

(e.g., national 

CO2 from propane 

aggregated for 

all facilities 

that supply 

propane) 

Total facilitylevel CO2e from 

subparts LL 

through PPb

Noe Suppliers of 

Industrial 

GHGs (subpart 

OO): 

Producers 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 

subpartf (e.g., 

national N2O 

quantity from all 

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Deleted: NN23

Deleted: NN23.

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131

Source 

Category 

(Part 98 

Subpart) 

Data Elements Are these 

data CBI? 

If CBI, Intended 

Aggregated Level 

of Releasea

facilities 

producing N2O) 

Total 

importer/exporter 

level CO2e from 

subparts LL 

through PP 

Suppliers of No 

Industrial 

GHGs (subpart 

OO): 

Importers and 

Exporters 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 our 

exporting N2O) 

Annual mass or 

volume of CO2 by 

each flow meter 

Suppliers of No 

CO2 (subpart 

PP): 

Producers Total facilitylevel 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 

Annual mass or 

volume of CO2 

injected measured 

by each flow 

meter 

Injection and No 

Sequestration 

of CO2

(proposed 

subpart RR, 

75 FR 18576, 

April 12, 

Annual mass or 

volume of CO2 

Yes Aggregated data 

released at the 

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¶

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132

Source 

Category 

(Part 98 

Subpart) 

Data Elements Are these 

data CBI? 

If CBI, Intended 

Aggregated Level 

of Releasea

transferred 

onsite or 

produced measured 

by flow meter 

2010) facility-level 

Facility-level 

data on CO2 

received, 

produced, and 

injected 

No 

Total 

importer/exporter 

level CO2e from 

subparts LL 

through PP 

Importers and No 

Exporters of 

Fluorinated 

Greenhouse 

Gases 

Contained in 

Pre-charged 

Equipment or 

Closed-cell 

Foams 

(proposed 

subpart QQ) 

(75 FR 18652, 

April 12, 

2010):

Importer/exporter 

level GHG 

quantities, by 

gas, from subpart 

QQ 

Yes Release national 

aggregation, by 

GHG for all 

facilities 

covered by 

subpart QQ 

a

 EPA 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.

b

 This 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.

c

 This data element, reported under 40 CFR part 98, subpart A, represents an 

aggregation of CO2 (by source category) from multiple individual products the 

reporter supplies.

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.

f

 For 40 CFR part 98, subpart OO, national aggregation would be released only 

for products where there are three or more reporters.

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133

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 facilitylevel 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’ facilitylevel 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 

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134

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/exporter-level 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 

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135

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 importerlevel 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. 

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Deleted: Energy Information 

Administration (

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136

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 

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137

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, 

coal-based liquids, natural gas, natural gas liquids, 

industrial GHGs, and CO2 are not CBI under CAA section Deleted: Draft deliberative: 

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138

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 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) facility-level 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 Deleted: Draft deliberative: 

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139

quantities and product compositions (including products 

produced, imported, or exported). Suppliers are required 

to report production/throughput data at the productspecific 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 coalto-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: 

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Rule

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140

• 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 petroleum-based 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, by-products, 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 

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141

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 closedcell 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 

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142

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 CBIa

(Y/N)? 

If CBI, Proposed 

Aggregated Level of 

Releaseb

Suppliers of CoalBased Liquid Fuels 

and Petroleum 

Products (Subparts 

LL and MM): 

Producers

Facility 

level, by 

product 

Yes Release national 

aggregation, by 

productc,d

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143

Source Category 

(Part 98 Subpart)

Level 

Reported 

Are these 

Data CBIa

(Y/N)? 

If CBI, Proposed 

Aggregated Level of 

Releaseb

Suppliers of CoalBased Liquids and 

Petroleum Products 

(Subparts LL and 

MM): 

Importers

Importer 

level, by 

product 

No 

Suppliers of CoalBased Liquids and 

Petroleum Products 

(Subparts LL and 

MM): Exporters

Exporter 

level, by 

product 

Yes Release national 

aggregation, by 

product 

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 

Facility 

level, by 

fluorinated 

GHG 

Yes Release national 

aggregation, by 

fluorinated GHGe

Suppliers of 

Industrial GHGs 

(Subpart OO): 

Producers 

Facility 

level 

throughputf

information, 

by process 

Yes N/A

g

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144

Source Category 

(Part 98 Subpart)

Level 

Reported 

Are these 

Data CBIa

(Y/N)? 

If CBI, Proposed 

Aggregated Level of 

Releaseb

Suppliers of 

Industrial GHGs 

(Subpart OO): 

Importers and 

Exporters

Importer and 

Exporter 

level, by 

fluorinated 

GHG 

Yes Release national 

aggregation, by 

fluorinated GHG 

Facility 

level total 

CO2

production 

No 

CO2 mass or 

volume 

measured by 

flow meter 

No 

Suppliers of CO2

(Subpart PP): 

Producers 

Facility 

level 

annually 

aggregated 

production 

information, 

by end use 

application 

No 

Importer and 

Exporter 

level total 

CO2

imported/expo

rted 

No 

CO2 mass or 

volume 

measured by 

flow meter, 

scales and 

weigh bills 

Yes Release 

Importer/exporter 

level aggregation 

Suppliers of 

CO2(PP): Importers 

and Exporters 

Importer and 

Exporter 

level 

annually 

aggregated 

production 

information, 

by end use 

application 

No 

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145

Source Category 

(Part 98 Subpart)

Level 

Reported 

Are these 

Data CBIa

(Y/N)? 

If CBI, Proposed 

Aggregated Level of 

Releaseb

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 precharged 

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 

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 

facility-level 

Injection and 

Geological 

Sequestration of 

CO2 (Proposed 

Subpart RR, 75 FR

18576, April 12,

2010)

Facilitylevel data on 

CO2 received, 

produced, and 

injected 

No 

a

 Production/throughput data are reported by product.

b

 EPA 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. 

c

 Product-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).

d

 For 40 CFR part 98, subpart LL, national aggregation will be released only if 

there are three or more reporters.

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Deleted: 30

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Deleted: 

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Deleted: ___, date)

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¶

¶

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146

e For 40 CFR part 98, subpart OO, national aggregation would be released only 

for products where there are three or more reporters.

f

 Throughput 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 byproducts, 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 closedcell 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: 

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147

• 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 facilitylevel 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 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 

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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). 

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• 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 

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Deleted: are technically 

similar to the 

Deleted: released and their 

disclosure is not likely to 

cause substantial 

competitive harm.

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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 

importer-level 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 

Deleted: . While EIA does 

not collect and release this 

particular data element, it 

does collect and release

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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 

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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 meter-specific data 

from these facilities is already publicly available from 

state oil and gas commissions. In addition, facilityspecific 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 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 naturallyoccurring 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 facilitylevel 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. 

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similar data reported and 

proposed for release under 

the GHG reporting rule. In 

particular, the 

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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 end-use 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 

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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 websites 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 

Deleted: the Mandatory GHG 

Reporting Rule

Deleted: other data are 

similar enough that 

disclosure of data in this 

category 

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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/exporter-level 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 

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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 

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Deleted: of 40 CFR part 98 

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157

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, 

Deleted: ) of the CAA.

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158

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 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 Fluorinated-Greenhouse 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 

Deleted: the Mandatory GHG 

Reporting Rule

Deleted: the 

Deleted: Toxic Release 

Inventory

Deleted: , which are the same 

as or similar to the 

publicly available supplier 

identifying information 

described above

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Deleted: CAA.

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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).36

• 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). 

 

36 Under 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.

Deleted: subpart 

Deleted: , subpart 

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Deleted: (

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Deleted: 21

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• 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 

Deleted: ___

Deleted: ____, date

Deleted: ) of the CAA. The 

transformation efficiency is 

used in Equation OO-3 of the 

Mandatory GHG Reporting Rule 

to calculate the mass of 

fluorinated GHGs or N2O that 

is transformed annually.

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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), 

Deleted: These data elements 

are not the type of 

information ordinarily 

protected as commercial or 

financial and sensitive in 

nature. 

Deleted: , which

Deleted: , 

Deleted: the Mandatory GHG 

Reporting Rule

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Deleted: for

Deleted: Therefore, 

disclosing

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162

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 

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this preamble), facility specific information on CO2

production is already publicly available. Biomass-based CO2

is generally produced as a by-product 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 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 

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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: 

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Reporting Rule

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Reporting Rule

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• 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 reporterspecific 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. 

Deleted: higher heating 

values

Deleted: ) of the CAA.

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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. 

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Reporting Rule

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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. 

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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. 

EPA proposes that the data elements in this category 

are not CBI because their disclosure would not likely cause 

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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. 

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competitive or proprietary 

nature. Neither can they

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sensitive information, such 

as 

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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 

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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 

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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 sitespecific 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 

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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 

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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-1of 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). 

• 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 

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(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 

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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 facility-level 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. 

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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 

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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 

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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. 

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 

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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 

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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 

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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 

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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. 

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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 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. 

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• 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 

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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. 

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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-for-profit enterprise which is 

independently owned and operated and is not dominant in its 

field. This definition of small entity is consistent with 

the definition of small entity used for Part 98. 

After considering the economic impacts of today’s 

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 

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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 

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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. 

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, 

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Reporting Rule.

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Reporting Rule

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Reporting Rule

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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 

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Reporting Rule

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Reporting Rule

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Reporting Rule

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Reporting Rule.

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Reporting Rule

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Reporting Rule

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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 

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Reporting Rule

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Reporting Rule

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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 

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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 LowIncome 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 

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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. 

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Proposed Confidentiality Determination for Data Required under

the Mandatory GHG Reporting Rule and Proposed Amendment to 

Special Rules Governing Certain Information Obtained under the 

Clean Air Act

Page 195 of 199

List of Subjects 40 CFR Part 2

Environmental protection, Administrative practice and 

procedure, Reporting and recordkeeping requirements. 

Dated: 

Lisa P. Jackson, 

Administrator. 

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196

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: 

§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, 

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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 

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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 

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* * * * *

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that were not included in the October 30, 2009 final 

rule. These subparts are as follows: 

subpart I, Electronics Manufacturing (___FR ____, 

date); 

subpart L, Fluorinated Gas Production (___FR ____, 

date); 

subpart W, Petroleum and Natural Gas Systems (___FR 

____, date); 

subpart DD, Sulfur Hexafluoride (SF6) and 

Perfluorocarbons (PFCs) from Electrical Equipment at 

an Electric Power System (___FR ____, date); 

subpart RR, Injection and Geologic Sequestration of 

Carbon Dioxide (___FR ____, date); 

subpart SS, Sulfur Hexafluoride and PFCs from 

Electrical Equipment Manufacture or Refurbishment 

(___FR ____, date); 

subpart QQ, Importers and Exporters of Fluorinated 

Greenhouse Gases Contained in Pre-charged Equipment or 

Closed-cell Foams (___FR ____, date). 

EPA expects to finalize these subparts in 2010. 

Today’s proposed confidentiality determination covers these 

data elements based on the proposed/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 notice and would therefore be covered 

by the confidentiality determination for that data 
category. EPA will address such data elements in the final 

confidentiality determination. 

(3) Data required by subparts included in the April 

10, 2009 proposal (74 FR 16448) that are expected to be 

finalized in 2010 without re-proposal. EPA considered the 

comments received on the April 2009 proposal for 

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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 requests the Freedom of 

Information Act. 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. In light of the voluminous data EPA 

will receive under 40 CFR part 98 and the multiple 

procedural steps required under 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. Further, EPA believes 

that the