6560.50 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 98 

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

RIN 2060-AQ04 

Proposed 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 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed 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 

SUMMARY: EPA proposes to determine in this notice the 

confidentiality status of data required to be reported 

under the Mandatory Reporting of Greenhouse Gases Rule 

(MRR). This notice describes the data categories EPA has 

developed for the MRR data elements and EPA’s proposed 

confidentiality determination for each category. In 

addition, this notice 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 MRR according to the determinations made in 

a final notice without taking certain additional procedural 

steps currently required. 
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2

DATES: Comments. Comments must be received on or 

before [INSERT THE DATE 60 DAYS AFTER PUBLICATION IN THE 

FEDERAL REGISTER]. 

Public Hearing. There will be one public hearing. The 

hearing will be held on [INSERT DATE 15 DAYS AFTER 

PUBLICATION IN THE FEDERAL REGISTER] in the Washington, DC 

area and will begin at XX am local time and end at XX pm 

local time. EPA will provide further information about the 

hearing on its webpage. 

ADDRESSES: Submit your comments, identified by Docket 

ID No. EPA–HQ–OAR–2009-0924, by one of the following 

methods: 

Χ Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online instructions 

for submitting comments. 

Χ E-mail: GHGReportingCBI@epa.gov

Χ Fax: (202) 566–1741. 

Χ 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. 

Χ 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 
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3

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 CBI or other information whose 

disclosure is restricted by statute. Do not submit 

information that you consider to be CBI or otherwise 

protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site is an “anonymous 

access” system, which means EPA will not know your identity 

or contact information unless you provide it in the body of 

your comment. If you send an e-mail comment directly to 

EPA without going through http://www.regulations.gov your 

e-mail address will be automatically captured and included 

as part of the comment that is placed in the public docket 

and made available on the Internet. If you submit an 

electronic comment, EPA recommends that you include your 

name and other contact information in the body of your 

comment and with any disk or CD–ROM you submit. If EPA 

cannot read your comment due to technical difficulties and 

cannot contact you for clarification, EPA may not be able 

to consider your comment. Electronic files should avoid 

the use of special characters, any form of encryption, and 

be free of any defects or viruses. 
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4

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: Lisa GroganMcCulloch, Climate Change Division, Office of Atmospheric 

Programs (MC–6207J), Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, DC 20460; telephone 

number: (202) 343–9743; fax number: (202) 343–2210; e-mail 

address: Grogan-McCulloch.Lisa@epa.gov or GHGMRR@epa.gov. 

For technical information, contact the Greenhouse Gas 

Reporting Rule Hotline at: 

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

s.htm. To obtain information about the public hearings or 
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5

to register to speak at the hearings, please go to 

http://www.epa.gov/climatechange/emissions/ghgrulemaking.ht

ml. 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 GHG reports under 40 CFR Part 98. The 

Administrator determined that the Mandatory GHG Reporting 

Rule is subject to the provisions of section 307(d) of the 

CAA. See CAA section 307(d)(1)(V) (the provisions of 

section 307(d) apply to “such other actions as the 

Administrator may determine”). The final Mandatory GHG 

Reporting Rule and this notice affect fuel and chemicals 

suppliers, and direct emitters of GHGs. Affected 

categories and entities include those listed in Table 1 of 

this notice: 
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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. 

334419 LCD unit screens manufacturing 

facilities. 

Electronics 

Manufacturing 

MEMS manufacturing facilities. 

Ethanol 

Production 

325193 Ethyl alcohol manufacturing 

facilities. 

Ferroalloy 

Production 

331112 Ferroalloys manufacturing 

facilities. 
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Category NAICS Examples of affected 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. 

211 Extractors of crude petroleum and 

natural gas. 

211112 Natural gas liquid extraction 

facilities. 

Petrochemical 

Production 

32511 Ethylene dichloride manufacturing 

facilities. 
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Category NAICS Examples of affected facilities 

325199 Acrylonitrile, ethylene oxide, 

methanol manufacturing facilities. 

325110 Ethylene manufacturing facilities. 

325182 Carbon black manufacturing 

facilities. 

Petroleum 

Refineries 

324110 Petroleum refineries. 

Phosphoric Acid 

Production 

325312 Phosphoric acid manufacturing 

facilities. 

Pulp and Paper 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. 

311421 Fruit and vegetable canning 

facilities. 

Wastewater 322110 Pulp mills. 

Treatment 322121 Paper mills. 

322122 Newsprint mills. 

322130 Paperboard mills. 
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Category NAICS Examples of affected facilities 

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 

examine the applicability criteria found in 40 CFR part 98, 

subpart A. If you have questions regarding the 
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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 the final 

Mandatory GHG Reporting Rule 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 

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 

SCC Source Classification Code 

SIC Standard Industrial Classification Code 

U.S. United States 

TABLE OF CONTENTS 

I. Executive Summary, Background, and General Rationale 
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A. Executive Summary 

B. The Mandatory GHG Reporting Rule 

C. CAA Section 114, “Emission Data,” and Confidentiality 

D. Proposed Rule Amendment Addressing Treatment of Part 98 

Data Elements 

E. Other Relevant Background 

F. 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 40 CFR part 98 

A. Overview 

B. Request for Comments 

C. Direct Emitting Facilities 

D. Suppliers 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act (UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation and Coordination 

with Indian Tribal Governments 

G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks 

H. Executive Order 13211: Actions that Significantly 

Affect Energy Supply, Distribution, or Use 

I. National Technology Transfer and Advancement Act 

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Populations 

IV. Next Steps 

I. Executive Summary, Background, and General Rationale 

A. Executive Summary 
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Under the final Mandatory GHG Reporting Rule (74 FR 

56259, October 30, 2009, and subsequent amendments), 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 1,000 

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 

Verification (MRV) Plans for Geological Sequestration 

facilities (see proposed subpart RR, __FR ___, date). 

This notice proposes to determine the confidentiality 

status of the data elements required to be reported under 

40 CFR part 98 pursuant to section 114(c) of the CAA.1 To 

 

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 
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13

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 

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 40 CFR part 98 that are 

emission data or non-CBI is important because it ensures 

transparency and promotes public confidence in the data. 

In an effort to promote transparency, EPA intends to 

publish on EPA’s Web site much of the part 98 data that we 

determine to be emission data or not otherwise entitled to 

confidential treatment pursuant to section 114(c) of the 

CAA. Those data elements that we determine to be entitled 

to confidential treatment would not be published on the Web 

site or made available to the public through FOIA requests. 

 

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 section 114(c) of the CAA 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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Table 2. Summary of Proposed Determinations for Direct 

Emitter Data Categories 

Proposed Confidentiality 

Determination for Data Elements in 

Each Category 

Data Category 

Emission 

Data2

Data That 

Are Not 

Emission 

Data and 

Not CBI 

Data That 

Are Not 

Emission 

data But 

Are CBI3

Facility and Unit 

Identifier 

Information 

X 

Emissions X 

Inputs to Emission 

Equations 

X 

Calculation 

Methodology and 

Methodological Tier 

X 

Data Elements 

Reported for Periods 

of Missing Data that 

are Not Inputs to 

Emission Equations) 

X 

Unit/Process “Static” 

Characteristics that 

are Not Inputs to 

Emission Equations 

X 

Unit/Process 

Operating 

Characteristics that 

are Not Inputs to 

Emission Equations 

X 

Test and Calibration 

Methods 

X 

Production/Throughput 

Data that are Not 

Inputs to Emission 

Equations 

X 

Raw Materials X 

 

2

Under section 114 of the CAA, “emission data” is not entitled to 

confidential treatment. See Section I.C of this preamble for further 

discussion.

3 As explained in more detail in section I.C of the preamble, section 

114(c) of the CAA 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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Proposed Confidentiality 

Determination for Data Elements in 

Each Category 

Data Category 

Emission 

Data2

Data That 

Are Not 

Emission 

Data and 

Not CBI 

Data That 

Are Not 

Emission 

data But 

Are CBI3

Consumed that are Not 

Inputs to Emission 

Equations 

Process-specific and 

Vendor Data Submitted 

in BAMM Extension 

Requests 

X 

Table 3. Summary of Proposed Determinations for Supplier 

Data Categories 

Proposed Confidentiality Determinations 

for Data Elements in Each Category 

Data Category 

Emission 

Data4

Data That Are 

Not Emission 

Data and Not 

CBI 

Data That Are 

not Emission 

Data But Are 

CBI5

GHGs reported X 6 X 6

Production/throughpu

t quantities and 

composition 

 X 6 X 6

 

4

Under section 114 of the CAA, “emission data” is not entitled to 

confidential treatment. See Section I.C of this preamble for further 

discussion.

5 As explained in more detail in section I.C of the preamble, section 

114(c) of the CAA affords confidential treatment to data (except 

emission data) that are considered trade secret or confidential 

business information (collectively referred to as “CBI”). 

6 EPA proposes to determine that some facility-level and productspecific data elements in this data category are 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. 
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Proposed Confidentiality Determinations 

for Data Elements in Each Category 

Data Category 

Emission 

Data4

Data That Are 

Not Emission 

Data and Not 

CBI 

Data That Are 

not Emission 

Data But Are 

CBI5

Identification 

information X 

Unit/process 

operating 

characteristics 

 X 7

Calculation, test, 

and calibration 

methods 

X 

Data Elements 

Reported for Periods 

of Missing data that 

are not related to 

production/ 

throughput or 

materials received 

X 

Emission factors X 

Amount and 

composition of 

materials received 

X 

Data Elements 

Reported for Periods 

of Missing data that 

are related to 

production/ 

throughput or 

materials received 

X 

Supplier customer 

and vendor 

information 

X 

Process-Specific and 

Vendor Data 

Submitted in BAMM 

Extension Request 

X 

 

7

Reported data will be released except for one reported data element 

for suppliers of industrial greenhouse gases (subpart OO) that will be 

held confidential. See Section II.D.5. of this preamble. 
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B. The Mandatory GHG Reporting Rule

The Mandatory GHG Reporting Rule requires reporting of 

numerous data elements to characterize, quantify, and 

verify GHG emissions and related information. Following 

proposal of the Mandatory GHG Reporting Rule, 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 the 

Mandatory GHG Reporting Rule should be “emission data” and 

hence not entitled to confidential treatment. In response 

to these comments, EPA stated in the preamble to the final 

Mandatory GHG Reporting Rule (74 FR 56287), 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 
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18

manufacturers)8. Today’s proposed rule addresses the 

confidentiality of the data required under section 114(a). 

These data requirements are codified in 40 CFR part 98. 

Several subparts of the 40 CFR 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 notice covers data elements that will be 

reported under the subparts that were finalized in 2009 and 

the subparts that are expected to be finalized in 2010. 

Specifically, the notice covers the following data 

elements: 

(1) Data required by 40 CFR part 98, subpart A and 

other subparts promulgated in 2009. Today’s notice 

includes all of 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 40 CFR part 98: 

• subpart A, General Provisions; 

• subpart C, General Stationary Fuel Combustion Sources; 

• subpart D, Electricity Generation; 

 

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 98. 
Draft deliberative: Do not cite or quote 

19

• subpart E, Adipic Acid Production; 

• subpart F, Aluminum Production; 

• subpart G, Ammonia Manufacturing; 

• subpart H, Cement Production; 

• subpart K, Ferroalloy Production; 

• subpart N, Glass Production; 

• subpart O, HCFC-22 Production and HFC-23 Destruction; 

• subpart P, Hydrogen Production; 

• subpart Q, Iron and Steel Production; 

• subpart R, Lead Production; 

• subpart S, Lime Manufacturing; 

• subpart U, Miscellaneous Uses of Carbonate; 

• subpart V, Nitric Acid Production; 

• subpart X, Petrochemical Production; 

• subpart Y, Petrochemical Production; 

• subpart Z, Phosphoric Acid Production; 

• subpart AA, Pulp and Paper Manufacturing; 

• subpart BB, Silicon Carbide Production; 

• subpart CC, Soda Ash Manufacturing; 

• subpart EE, Titanium Dioxide Production; 

• subpart GG, Zinc Production; 

• subpart HH, Municipal Solid Waste Landfills; 
Draft deliberative: Do not cite or quote 

20

• 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 notice covers data required to be 

submitted in BAMM extension requests and requests from 

adipic acid and nitric acid facilities for approval of 

alternative monitoring methods. Although amendments may be 

made during 2010 to further clarify some of these data 

elements, we expect that any amended data element would 

still logically fall into the same or another data category 

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. 

 

9 EPA will not be implementing subpart JJ of the Mandatory GHG Reporting 

Rule due to a Congressional restriction prohibiting the expenditure of 

funds for this purpose. As a result, subpart JJ is not included in the 

scope of this notice. 
Draft deliberative: Do not cite or quote 

21

(2) Data required by subparts that have recently been 

proposed or re-proposed but not yet finalized. 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 subpart RR, __FR ___, date). Earlier 

this year, EPA proposed or re-proposed several source 

category subparts that were not included in the October 30, 

2009 final rule. These subparts are as follows: 

Χ subpart I, Electronics Manufacturing (___FR ____, 

date); 

Χ subpart L, Fluorinated Gas Production (___FR ____, 

date); 

Χ subpart W, Petroleum and Natural Gas Systems (___FR 

____, date); 

Χ subpart DD, Sulfur Hexafluoride (SF6) and 

Perfluorocarbons (PFCs) from Electrical Equipment at 

an Electric Power System (___FR ____, date); 

Χ subpart RR, Injection and Geologic Sequestration of 

Carbon Dioxide (___FR ____, date); 

Χ subpart SS, Sulfur Hexafluoride and PFCs from 

Electrical Equipment Manufacture or Refurbishment 

(___FR ____, date); 

Χ 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. 
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22

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 the 

following subparts and expects to promulgate them in 201010: 

Χ subpart J, Ethanol Production; 

Χ subpart M, Food Processing, 

Χ subpart FF, Underground Coal Mines; 

Χ subpart T, Magnesium Production; 

Χ subpart TT, Industrial Landfills11; and 

 

10 After reviewing the comments received on the proposal as well as 

other available information, EPA decided not to require reporting from 

coal suppliers (subpart KK) at this time. EPA’s near-term needs for 

information on greenhouse gas emissions from coal consumption can be 

met through existing reporting requirements under the Mandatory 

Greenhouse Gas Reporting Rule, as well as other readily available and 

existing data sources. EPA may reconsider this conclusion in the 

future in light of new information or identification of policy or 

program needs. Please see the Suppliers of Coal preamble (___FR,____, 

date) for additional information on this decision. 

11 The industrial landfills source category was proposed with Municipal 

Landfills under subpart HH in the April 10, 2009 proposal (74 FR 
Draft deliberative: Do not cite or quote 

23

Χ subpart II, Wastewater Treatment. 

Today’s proposed confidentiality determination covers 

the data elements in these subparts based on the subparts 

as proposed in April 2009. Although the data elements in 

these subparts, when finalized, may not be exactly the same 

as they were 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 already addressed in this notice and 

would therefore be covered by the final confidentiality 

determination for that category. EPA will address such 

data elements in the final confidentiality determination. 

Publication of Data. As previously mentioned, EPA is 

committed to transparency and intends to publish on EPA’s 

Web site much of the part 98 data that is submitted; 

however, we are not publishing data elements that are CBI. 

Public release of the information collected under 40 

CFR 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 

 

16448). However, EPA has since decided to separate landfills into two 

subparts: subpart HH for Municipal Landfills (promulgated October 30, 

2009 (74 FR 56374)) and subpart TT for industrial landfills. 
Draft deliberative: Do not cite or quote 

24

facilities are emitting GHGs and how much they are 

emitting. This information is useful for comparing the GHG 

emissions of different facilities and for evaluating 

changes in a facility’s GHG emissions over time. 

Comparisons of facility-specific data will improve our 

understanding of the factors that influence GHG emission 

rates and actions facilities could in the future or already 

take to reduce emissions. By tracking changes in facilityspecific data, EPA and other stakeholders will be able to 

track trends in GHG emissions from industries and 

facilities overtime and assess responses to polices 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 and the methods used to calculate emissions, 

determine the composition of materials, and calibrate 

measurement devices are all valuable to ensure data quality 

and to gain a better understanding of data resulting from 

the calculations. These data are also important to the GHG 

verification checks. 
Draft deliberative: Do not cite or quote 

25

Data submitted by suppliers are needed by EPA and 

other users of the reported data to help develop policies 

that could affect sources under a variety of CAA 

provisions. For example, the geographic distribution of 

suppliers of various fuel types and industrial GHGs may 

prove useful in evaluating the impact of transportation 

distances and transportation emissions on the feasibility 

and effectiveness of different GHG control strategies. 

These may include regulatory and nonregulatory strategies 

and technologies for preventing or reducing air pollutants, 

such as energy conservation, end-use efficiency, and fuelor raw-material switching. 

This is not a comprehensive listing of all the ways 

the information collected under the Mandatory GHG Reporting 

Rule 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 section 114(c) 

of the CAA. Such disclosure is required under section 

114(c) of the CAA. 

 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 
Draft deliberative: Do not cite or quote 

26

these data elements. There are a number of different 

formats in which both CBI and non-CBI data could be 

published using tables, graphs, charts, and other graphical 

methods. For example, EPA could publish tables or bar 

charts showing the emission data for individual facilities 

to allow comparison of data between facilities within a 

source category. Alternatively, EPA could publish pie 

charts of emission data by source category or by 

geographical region to allow easy comparison of data 

between different industry sectors or locations. EPA is 

interested in receiving suggestions on formats for 

presenting both CBI and non-CBI data that would be most 

useful to the public. We are specifically soliciting 

suggestions on approaches to aggregating CBI data that 

would provide useful information to the public without 

disclosing data determined to be CBI. We are also 

soliciting comment on the value of publishing CBI data 

elements within numerical ranges (rather than specific 

values) provided that the ranges would not divulge 

confidential information, and whether publishing ranges of 

values on a facility-level provides valuable information 

that aggregated data may not convey. 

C. CAA Section 114, “Emission Data,” and Confidentiality
Draft deliberative: Do not cite or quote 

27

CAA section 114(c) requires that “[a]ny records, 

reports, or information obtained under [CAA section 114(a)] 

shall be available to the public, except that upon a 

showing satisfactory to the Administrator by any person 

that records, reports, or information, or particular part 

thereof,(other than emission data) ... if made public, 

would divulge methods or processes entitled to protection 

as trade secrets..., the Administrator shall consider such 

record, report, or information or particular portion 

thereof confidential... .” EPA has interpreted CAA section 

114(c) to afford confidential treatment to both trade 

secrets and confidential business information (hereinafter 

collectively referred to as “CBI”) (40 FR 21987, 21990 (May 

20, 1975)). Section 114(c) precludes “emission data” from 

being considered confidential and requires that such data 

be available to the public. 

Pursuant to section 114(c) of the CAA, EPA proposes to 

determine the confidentiality status of data that are 

required to be reported under 40 CFR part 98. As described 

in more detail below in section I.D., 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 
Draft deliberative: Do not cite or quote 

28

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 II.D. 

of this preamble for supplier data categories. 

In making the confidentiality determination, EPA first 

examined, on a data category basis, whether the data 

elements constituted “emission data” under section 114(c) 

of the CAA. Specifically, EPA examined whether the data 

elements in a given category met the definition of 

“emission data” at 40 CFR 2.301(a)(2)(i), which is as 

follows: 

Emission data means, with reference to any source of 

emission of any substance into the air -- 

(A) Information necessary to determine the identity, 

amount, frequency, concentration, or other 

characteristics (to the extent related to air quality) 

of any emission which has been emitted by the source 

(or of any pollutant resulting from any emission by 

the source), or any combination of the foregoing; 

(B) Information necessary to determine the identity, 

amount, frequency, concentration, or other 

characteristics (to the extent related to air quality) 

of the emissions which, under an applicable standard 

or limitation, the source was authorized to emit 

(including, to the extent necessary for such purposes, 

a description of the manner or rate of operation of 

the source); and 

(C) A general description of the location and/or 

nature of the source to the extent necessary to 

identify the source and to distinguish it from other 

sources (including, to the extent necessary for such 

purposes, a description of the device, installation, 

or operation constituting the source). 
Draft deliberative: Do not cite or quote 

29

With respect to the 11 categories of direct emitter 

data, because there are no established GHG emission limits 

for the facilities subject to 40 CFR 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 

below in sections II.C.2 through II.C.6, EPA proposes to 

determine that the GHG emissions to be reported by direct 

emitters, as well as those data that are required to 

perform the emissions calculations specified in the direct 

emitter subparts (i.e., inputs to equations/calculations as 

well as information otherwise needed to calculate or 

determine emissions), meet the definition of “emission 

data” at 40 CFR 2.301(a)(2)(i)(A). In addition, EPA 

proposes to determine that locational and other identifying 

information regarding the emitting sources (i.e., the data 

elements in the direct emitter facility and unit identifier 
Draft deliberative: Do not cite or quote 

30

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: 

Χ Unit/process “static” characteristics that are not 

inputs to equations. 

Χ Unit/process operating characteristics that are not 

inputs to equations. 

Χ Test and calibration methods. 

Χ Production/throughput data that are not inputs to 

emission equations. 

Χ Raw materials consumed that are not inputs to emission 

equations. 

Χ Process-Specific and Vendor Data Submitted in BAMM 

Extension Requests 

40 CFR 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 
Draft deliberative: Do not cite or quote 

31

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 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 
Draft deliberative: Do not cite or quote 

32

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 40 CFR 

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 section 

114(c). In making the CBI determination, EPA considered 

the confidentiality determination criteria at 40 CFR 2.208, 

which are as follows: 

Determinations issued under §§2.204 through 2.207 

shall hold that business information is entitled to 

confidential treatment for the benefit of a particular 

business if: 

(a) The business has asserted a business 

confidentiality claim which has not expired by its 

terms, nor been waived nor withdrawn; 

(b) The business has satisfactorily shown that it has 

taken reasonable measures to protect the 
Draft deliberative: Do not cite or quote 

33

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 quasijudicial proceeding); 

(d) No statute specifically requires disclosure of 

the information; and 

(e) Either: 

(1) The business has satisfactorily shown that 

disclosure of the information is likely to cause 

substantial harm to the business’s competitive 

position; or 

(2) The information is voluntarily submitted 

information (see §2.201(i)), and its disclosure would 

be likely to impair the Government’s ability to obtain 

necessary information in the future. 

Because EPA proposes to determine the CBI status of 

part 98 data in advance of their submission, EPA assumes in 

this proposal that the data meet the criteria at 40 CFR 

2.208(a) and (b). Specifically, EPA assumes that the 

reporting facilities have asserted confidentiality claims. 

EPA further assumes that the reporting facilities are 

taking and will continue to take reasonable measures to 

protect the data. The data elements at issue also meet the 

criterion at 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 2.208 are 
Draft deliberative: Do not cite or quote 

34

met. Specifically, EPA focused on whether release of the 

data is likely to cause substantial harm to the business’s 

competitive position. See 40 CFR 2.208(e)(1). EPA also 

considered whether the data are already publicly available 

or reasonably obtainable by a non-governmental entity. See 

40 CFR 2.208 (c). EPA proposes to determine that the data 

in a given category are not CBI (or are “non-CBI”) under 

section 114(c) if the data fail to satisfy either of the 

remaining criteria (i.e., 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 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. 

D. Proposed Rule Amendment Addressing Treatment of Part 98 

Data Elements 

As previously discussed, pursuant to section 114(c), 

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 
Draft deliberative: Do not cite or quote 

35

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., “non-CBI”). EPA intends to make much 

of such data available to the public through an EPA Web 

site. Data elements that we determine to be CBI under 

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). 

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 
Draft deliberative: Do not cite or quote 

36

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 case-by-case determination under part 2 subpart B 

is redundant and unnecessarily burdensome for determining 

the confidentiality status of part 98 data, many of which 

share the same characteristics.12 

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 unique 

circumstances may arise, whether in a specific community or 

at a specific facility, that would warrant the need for a 

limited, less cumbersome process for making entity-specific 

determinations. 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 

 

12 As described in section II.C and II.D of this notice, EPA has grouped 

part 98 data into 22 separate data categories, based on whether the 

data elements are from supplier or direct emitter source categories, 

whether the data is used to calculate GHG emissions, and the type of 

data (e.g., operating data, production throughput data, and analytical 

method). 
Draft deliberative: Do not cite or quote 

37

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. 

To facilitate timely release of greenhouse gas data 

collected under the mandatory reporting program (40 CFR 

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. 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 

the 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 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 40 CFR Part 98 determined to be 
Draft deliberative: Do not cite or quote 

38

CBI. The proposed procedures are similar to or consistent 

with the existing part 2 procedures. 

E. 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 sections 110 and 

114 of the CAA. 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 
Draft deliberative: Do not cite or quote 

39

list in the notice was not exhaustive and that other data 

might be found, in a proper case, to constitute emission 

data. 

Many of the data elements under 40 CFR 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 notice addresses all 

data elements reported under part 98.13 

Acid Rain Program. The Acid Rain program releases to 

the public data similar to the data collected under the 

Mandatory GHG Reporting Rule. Under the Acid Rain program, 

facilities are required to submit quarterly reports that 

contain data on CO2 emissions, as well as the data used to 

identify emission units and calculate the CO2 emissions. 

For the Acid Rain program, the CO2 emissions are determined 

using either Continuous Emissions Monitoring Systems (CEMS) 

or alternative methods specified in the rule (e.g., 40 CFR 

part 75, appendix G methods and the method used to 

 

13 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 section 114(c) of the CAA for any supporting 

documentation claimed confidential by applicants either upon receipt of 

such information or upon a request for such information after receipt. 
Draft deliberative: Do not cite or quote 

40

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 the EPA Acid Rain Web site 

(www.epa.gov/acidrain). 

The Acid Rain program allows facilities to make 

confidentiality claims for data that are not “emission 

data” (see 40 CFR 75.60(c)). Although facilities subject 

to the Acid Rain program are allowed to assert claims of 

data confidentiality for data that are not emission data, 

to date no such representations have been received and all 

of the data submitted to EPA are made available to the 

public. 

In the Acid Rain program, public release of these data 

ensures transparency and public confidence in the program. 

Since many of the data fields required by the Acid Rain 
Draft deliberative: Do not cite or quote 

41

program are the same or similar to the data elements to be 

reported by direct-emitting facilities subject to the 

Mandatory GHG Reporting Rule, 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 

the Mandatory GHG Reporting Rule. However, EPA recognizes 

that the Mandatory GHG Reporting Rule 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 the 

Mandatory GHG Reporting Rule 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 the Mandatory GHG Reporting 

Rule 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. 

F. Public Comments on the Proposed Mandatory GHG Reporting 

Rule
Draft deliberative: Do not cite or quote 

42

In response to the April 10, 2009 proposal of the 

Mandatory GHG Reporting Rule (74 FR 16448), EPA received a 

number of comments on whether data collected under the 40 

CFR part 98 should be afforded confidential treatment. 

Comments on this topic were received from a wide range of 

interested parties, including industry, state and local 

governments, private citizens, environmental organizations, 

and other nongovernment organizations. The comments 

received can be classified into two broad categories: those 

supporting the release of as much data as possible; and 

those opposed to releasing one or more of the reported data 

elements. A summary of the comments is provided in this 

section of the preamble. For additional information, see 

the memorandum “Summary of Comments on the Release of 

Reported Data Submitted in Response to EPA’s Request for 

Comments on the Proposed Mandatory Greenhouse Gas Reporting 

Rule” Published April 10, 2009 in Docket EPA-HQ-OAR-2009-

0924. 

EPA is not responding further to public comments 

related to the confidentiality of data elements received on 

the proposed GHG reporting rule. Today’s notice proposes 

confidentiality determinations and solicits additional 

public comments. Public comments received will be 
Draft deliberative: Do not cite or quote 

43

addressed in the final notice 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 the 

Mandatory GHG Reporting Rule 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 
Draft deliberative: Do not cite or quote 

44

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 the Mandatory GHG Reporting Rule 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 
Draft deliberative: Do not cite or quote 

45

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. 
Draft deliberative: Do not cite or quote 

46

As mentioned above, EPA stated in the preamble to the 

final Mandatory GHG Reporting Rule that it would determine 

the confidentiality status of the data elements to be 

collected under the Mandatory GHG Reporting Rule through a 

notice and comment process. Today’s notice proposes for 

public comment confidentiality determinations to be made 

for the Mandatory GHG Reporting Rule data elements that are 

codified in 40 CFR part 98. Today’s notice 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 40 CFR part 98 

A. Overview 

This notice describes the 22 data categories EPA has 

developed for all of the data to be reported under 40 CFR 

part 98 and EPA’s proposed determination by category. As 

mentioned in previous sections, because part 98 has over 

1,000 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 
Draft deliberative: Do not cite or quote 

47

within a given data category are similar from a technical 

standpoint, with some exceptions explained in the 

descriptions of each data category in sections II.C. and 

II.D. of this preamble. A list of all the data elements 

assigned to each category is provided in a memorandum (see 

Memorandum “Data Category Assignments for Reporting 

Elements” in Docket EPA-HQ-OAR-2009-0924 and the Web site 

(www._____)). 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), the 

Mandatory GHG Reporting Rule 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 
Draft deliberative: Do not cite or quote 

48

also important for understanding the effect of different 

processes, fuels, and feedstocks on emissions. 

B. Request for Comments on Category Determinations

Today’s notice provides affected businesses subject to 

Part 98 of the Mandatory GHG Reporting Rule, other 

stakeholders, and the general public an opportunity to 

provide comment on the proposed confidentiality 

determination of part 98 data and 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 
Draft deliberative: Do not cite or quote 

49

reasonable approach and whether the proposed data 

categories are sufficient for this purpose. Specifically, 

we request comments on whether the 22 data categories 

described in this notice 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 more narrow or broad 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 notice contains data 

elements from multiple source categories (subparts). For 

most data categories, a single confidentiality 

determination is proposed for the entire data category. 
Draft deliberative: Do not cite or quote 

50

However, for some of the supplier data categories (i.e., 

the GHGs Reported Category, the Production Throughput 

Quantities and Composition Data Category, and the 

Unit/Process Operating Characteristics Category), we are 

proposing to determine that some data elements within a 

data category are entitled to confidential treatment and 

the 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 notice. 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 
Draft deliberative: Do not cite or quote 

51

unique circumstances may arise, whether in a specific 

community or at a specific facility, that would warrant the 

need for a limited, less cumbersome process for making 

entity-specific determinations. 

“Emission Data” Determination. As previously 

discussed in section I.C. of this preamble, EPA proposes to 

determine as “emission data” data required to perform the 

emissions calculations for direct emitters specified in 40 

CFR 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 Emissions 

data direct emitter category 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 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 on whether a narrower 

interpretation of the definition of “emission data”, that 

does not include all inputs to equations, would be 

sufficient for the purposes of the Mandatory GHG Reporting 
Draft deliberative: Do not cite or quote 

52

Rule. If so, please suggest what data should be considered 

emission data and explain how a narrower definition of 

“emission data” would be consistent with the “necessary to 

determine” clause in 40 CFR 2.301. In the interest of 

transparency , EPA is also seeking comment on whether a 

broader definition of “emission data” would be appropriate 

for the Mandatory GHG Reporting Rule and, if so, what 

additional data should be considered to be “emission data”. 

Delay Release of Emission Data and Data Not Entitled 

To Confidential Treatment. 

The agency considered options of delaying release of 

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

years rather than releasing immediately after verification) 

as a means to address potential industry concerns over 

release of data. One option EPA considered is delaying the 

publication (i.e., posting on the Web site) of some data 

elements that are proposed in this notice 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. 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 
Draft deliberative: Do not cite or quote 

53

the release of this data. (The data might be less sensitive 

and less likely to cause harm if it were to be released at 

a later date, when it would be less current). However, 

even if EPA does not automatically release part 98 data 

that are determined to be emission data or non-CBI but are 

nonetheless considered by the businesses to be sensitive 

data, that data would still be subject to FOIA request. 

Therefore, per FOIA regulations and consistent with EPA’s 

final confidentiality determination, emission data and nonCBI 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 is 

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 the 

Mandatory GHG Reporting Rule, the intent of this proposed 
Draft deliberative: Do not cite or quote 

54

action is to avoid these case-by-base decisions. In 

addition, this approach would have no effect on data 

submitted in the years subsequent to the first year of 

reporting. 

For these reasons, EPA concluded that delaying 

publication of potentially sensitive data or delaying our 

final confidentiality determination would not ease 

businesses’ concerns regarding the release of reported 

data. While we believe that neither of these approaches is 

a viable option, EPA solicits comment on whether delaying 

publication of certain data elements would ease business 

concerns and whether there are any alternative approaches 

that would allay such concerns while enabling us to meet 

our obligations under FOIA and CAA. 

Duration of Confidentiality Treatment 

In the interest of transparency and consistency with 

the practice of other EPA programs’ (e.g., Acid Rain 

Program) release of all data, 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 
Draft deliberative: Do not cite or quote 

55

are proposed to be entitled to confidential treatment could 

eventually be released without causing substantial harm to 

business, please specify which data elements fall into this 

group, the amount of time delay that would be required 

prior to release, and the reason for the change in the 

proprietary nature of the data element. 

C. Direct Emitting Facilities

Direct emitting facilities are those facilities 

subject to 40 CFR 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). This section covers all 

of the data elements required to be reported for these 

source categories (subparts). This section also covers 

certain data elements from 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 sequestration14). All 

remaining data elements for Subpart RR are covered in 

 

14 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 ___FR___, date). 
Draft deliberative: Do not cite or quote 

56

section II.D. of this preamble because they are not related 

to direct emissions. 

In addition to data elements reported in the annual 

GHG reports, this section includes data elements in 

applications from adipic acid and nitric acid producers for 

approval of alternative methods (excluding supporting 

documentation15) 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 notice: 

Χ Facility and unit identifier information. 

Χ Emissions. 

Χ Inputs to emission equations. 

Χ Calculation methodology and methodological tier. 

Χ Data elements reported for periods of missing data 

that are not inputs to emission equations). 

 

15 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 

section 114(c) of the CAA for any supporting documentation claimed 

confidential by applicants either upon receipt of such information or 

upon a request for such information after receipt. 
Draft deliberative: Do not cite or quote 

57

Χ Unit/process “static” characteristics that are not 

inputs to emission equations. 

Χ Unit/process operating characteristics that are not 

inputs to emission equations. 

Χ Test and calibration methods. 

Χ Production/throughput data that are not inputs to 

emission equations. 

Χ Raw materials consumed that are not inputs to emission 

equations. 

Χ 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” in Docket EPA-HQ-OAR-2009-0924 and the 

Web site (www._____)). 

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. The Mandatory GHG 

Reporting Rule requires sources to report information 

needed to identify each facility and emission unit subject 

to reporting. Facility identifying information must be 
Draft deliberative: Do not cite or quote 

58

reported by all facilities as specified in subpart A. 

Unit-specific identifying information is reported if 

required by an applicable source category subpart. Unitspecific identifying information is required in those 

subparts that require emissions to be calculated on a unitby-unit basis. For these source categories, unit-specific 

data are needed to calculate emissions using the procedures 

in the Mandatory GHG Reporting Rule, so the unit associated 

with the emissions must be identified. 

Data elements in this category include the following 

data elements required under 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. 

The data elements in this category also include the 

information required by individual subparts of the 

Mandatory GHG Reporting Rule for identifying each emission 

unit for which emissions must be reported, including, an 

emission unit or group identification number and the type 

of unit (e.g., cement kiln, electric arc furnace, glass 
Draft deliberative: Do not cite or quote 

59

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 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 notice, emission data must be available 

to the public and is not entitled to confidential treatment 

under section 114(c). “Emission data” is defined in 40 CFR 

2.301(a)(2)(i)(A) to include, among other things, 

“information necessary to determine the identity, amount, 

frequency, concentration, or other characteristics (to the 

extent related to air quality) of any emission which has 

been emitted by the source...” EPA considers the term 

“identity ... of any emission” as not simply referring only 

to the names of the pollutants being emitted, but to also 

include other identifying information, such as from what 

and where (e.g., the identity of the emission unit) the 
Draft deliberative: Do not cite or quote 

60

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.D. of this notice) 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. 
Draft deliberative: Do not cite or quote 

61

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. 

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 40 CFR part 98. Under 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 40 CFR part 98. Each of 

these subparts lists the specific GHGs to be reported for a 

particular source category and whether facility emissions 

are reported only at the source-category level or 

separately for each process, manufacturing line, or 

emission unit within a source category. In general, 

emissions are reported at the same level of detail in which 
Draft deliberative: Do not cite or quote 

62

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: 

Χ CO2, CH4, and N2O emissions from each stationary 

combustion unit (subpart C). 

Χ Process N2O emissions from adipic acid production 

subpart E). 

Χ Process CO2 and N2O emissions from each electric arc 

furnace at a ferroalloy production facility (subpart 

K). 

Χ Process CO2 emissions from each glass furnace and all 

furnaces combined at a glass manufacturing facility 

(subpart N). 

Χ Process CO2 emissions from each soda ash manufacturing 

line at soda ash manufacturing plants (subpart CC). 

For each facility, GHG emissions are reported at the 

facility level, the subpart level, and, in many cases, the 

emission unit or process level. For example, petroleum 
Draft deliberative: Do not cite or quote 

63

refineries will report GHG emissions under subpart A and 

under subpart Y at the following separate levels: 

Χ Annual CO2e emissions (excluding biogenic CO2) 

aggregated for all GHG from all applicable source 

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

Χ Annual emissions of biogenic CO2 aggregated for all 

applicable source categories (i.e., one value for the 

whole facility). 

Χ CO2, CH4, and N2O coke burn-off emissions from each 

catalytic cracking unit, fluid coking unit, and 

catalytic reforming unit. 

Χ CO2 emissions from sour gas sent off site for sulfur 

recovery operations. 

Χ CO2 process emissions from each on-site sulfur recovery 

plant. 

Χ CO2, CH4, and N2O emissions from each coke calcining 

unit. 

Χ CO2 and CH4 emissions from asphalt blowing operations. 

Χ CH4 emissions from equipment leaks, storage tanks, 

loading operations, delayed coking units, and 

uncontrolled blowdown systems. 

Χ CO2, CH4, and N2O emissions from each process vent not 

specifically covered above. 

Χ 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 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 
Draft deliberative: Do not cite or quote 

64

this category consists of all emissions to be reported 

under the Mandatory GHG Reporting Rule. These data 

elements are clearly information regarding the identity, 

amount, and frequency of any emission emitted by the 

reporting direct emitters and, therefore, they are 

“emission data.” 

As described above, EPA proposes that all emissions 

reported by direct emitters under part 98, including 

emissions of each GHG at the levels required by the 

applicable rule subparts (e.g., facility-level; by source 

category; and by process, process line, or unit), are 

“emission data.” Facilities are also required to report 

GHG emissions in terms of CO2e, which is also part of this 

data category, and is considered to be emission data. For 

those source categories where the methodology requires 

emissions to be calculated at a process line or unit level, 

the calculated emissions for each process line or unit are 

the identity and quantity emitted by the source and are 

“emission data” within the meaning of 40 CFR 2.301(a)(2). 

Likewise, emissions broken out by GHG are needed to 

determine the “identity” of the emissions and to calculate 

CO2e. In summary, all reported emissions are “emission 

data.” 
Draft deliberative: Do not cite or quote 

65

As discussed in Section I.D. of this notice, 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). 

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). 
Draft deliberative: Do not cite or quote 

66

Description of data elements. The data elements in 

this category consist of inputs to the equations specified 

in 40 CFR part 98 for calculating emissions to be reported 

by direct emitters. The Mandatory GHG Reporting Rule 

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 40 CFR part 98. Each subpart specifies the equations 

that must be used to calculate GHG emissions and the inputs 

to the equations that must be reported for a particular 

source category. Many of these subparts provide more than 

one calculation method for a process or unit and allow 

reporting facilities to select their preferred method from 

those provided. Therefore, the specific data elements to 

be reported depend on the source category and on the 

calculation method chosen. 

All reported data elements that are inputs to a GHG 

emission calculation equation used by the reporting 

facilities are assigned to this category. Accordingly, 

this data category includes data elements such as raw 
Draft deliberative: Do not cite or quote 

67

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 notice, 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: 

Χ 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 (subpart C). 

Χ Control device information used by reporting 

facilities as inputs to emissions equations, such as 

the destruction efficiency (subparts E and V), sorbent 

used in the reporting year (subpart C), and abatement 

utilization factor (subparts E and V). 

Χ 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 (subpart G), hydrogen production 

(subpart P), and petrochemical production (subpart X); 

and volume or mass of product produced for source 

categories such as ferroalloy (subpart K), lead 

(subpart R), and zinc production (subpart GG). 

Χ Characteristics of raw materials, products, and byproducts used by reporting facilities as inputs to 
Draft deliberative: Do not cite or quote 

68

emissions equations, such as the carbon content of 

petroleum coke used in silicon carbide 

production(subpart BB), inorganic carbon content of 

trona or soda ash for soda ash manufacturing(subpart 

CC), molecular weight of sorbent (subpart C), 

molecular weight of raw materials (subparts G and X), 

Calcium oxide and magnesium oxide content of clinker 

used in cement product (subpart H), carbonate content 

of raw materials used in glass production (subpart N), 

and hourly CO2 concentration in liquid alkaline 

feedstock for soda ash manufacturing (subpart CC). 

Χ 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(subpart Y). 

Χ Site-specific emission factors, used by reporting 

facilities as inputs to emissions equations, for 

source categories such as adipic acid production 

(subpart E), nitric acid production (subpart V), and 

iron and steel production (subpart Q). 

Χ Equipment or system specifications that are used by 

reporting facilities as inputs to emissions equations 

to calculate GHG emissions, such as the collection 

efficiency of landfill gas systems (subpart HH). 

Rationale for Proposed Determination. As discussed in 

Section I.C. of this notice, 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 
Draft deliberative: Do not cite or quote 

69

determine... the amount” of any emission emitted by the 

source. 

As explained above, many subparts allow the facility 

to select from two or more calculation methods. For 

example, many source category subparts allow companies to 

choose to calculate emissions by either (1) measuring gas 

flow rates and emissions concentrations with CEMS and using 

those data to calculate annual mass emissions, or (2) using 

emission calculation equations provided in the rule and 

site-specific input data needed to perform the calculation. 

However, once a facility selects a calculation method, then 

the equation becomes the only way for determining such 

emissions for the time period the selected calculation 

method is used.16 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 

 

16 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. 
Draft deliberative: Do not cite or quote 

70

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). 

Use of Continuous Monitoring Systems (CEMS). EPA 

notes that in many cases the use of CEMS reduces the number 

of data parameters required to be reported. Many subparts 

allow facilities to choose between using CEMS and using 

source-category specific GHG calculation procedures. This 

notice 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 
Draft deliberative: Do not cite or quote 

71

would not be eligible for confidential treatment since it 

is used as inputs to the mass balance equations provided in 

subpart G and would be considered “emission data”. 

In addition, facilities that use CEMS generally have 

to report fewer data elements than those using emission 

equations. For example, ammonia production facilities that 

do not use CEMS must report the carbon content, as well as 

the amount, of each feedstock used. Therefore, by using 

CEMS, a reporting facility would be required to submit a 

more limited range of data elements, thereby potentially 

alleviating any concern for other data not required. 

EPA recognizes that there are some situations where 

use of a CEMS for one GHG will not avoid release of data 

elements used to calculate emissions of other GHGs. For 

example, many facilities that use CEMS to determine CO2 

emissions from stationary combustion sources will use 

calculation procedures to determine CH4 and N2O emissions 

from the same combustion sources. In this case, reported 

data elements such as fuel use and higher heating value 

(HHV) for these combustion units would be inputs to 

emission equations for CH4 and N2O emission calculations and 

would therefore be released, regardless of the fact that 

CEMS are used to determine CO2 emissions. 
Draft deliberative: Do not cite or quote 

72

EPA solicits comments on whether and to what extent 

the use of CEMS would relieve industry concerns regarding 

making data available to the public. We specifically 

solicit comment on the extent to which industry would take 

advantage of the option if EPA added CEMS methodologies for 

CH4 and N2O to the Mandatory Reporting Rule where 

appropriate. 

5. The Calculation Methodology and Methodological Tier 

Category 

EPA proposes to determine that the reported 

calculation methodology and the methodological tier used by 

a reporting facility to calculate its GHG emissions are 

“emission data” under 40 CFR 2.301(a)(2)(i). 

Description of data elements. Data elements included 

in this category are the methodology used by a reporting 

facility to calculate its annual GHG emissions under 40 CFR 

part 98, including the methodological tiers used to 

calculate CO2 emissions from fuel combustion under subpart C 

of 40 CFR part 98. 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 the Mandatory GHG Reporting Rule 

specifies the method(s) that must be used to calculate GHG 
Draft deliberative: Do not cite or quote 

73

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: 

Χ 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. 

Χ 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. 

Χ Using a site-specific GHG emission factor determined 

from stack testing and measurements of process 

parameters during the test. 

Χ Calculating GHG emissions from default emission 

factors provided in the Mandatory GHG Reporting Rule 

and the amount of material consumed as either a fuel 

or raw material in a manufacturing process. 

Χ Monitoring GHG emissions directly from a stack or vent 

using a CEMS. 

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 the Mandatory GHG Reporting Rule (by fuel) to 

calculate CO2 emissions. The highest tier (Tier 4) uses 

CEMS to measure CO2 emissions directly. Tiers 2 and 3 use 
Draft deliberative: Do not cite or quote 

74

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

allowed to use depends on the size of the combustion unit, 

the type of fuel(s) combusted, and whether there is 

existing fuel and emissions monitoring at the reporting 

facility. In 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, BAMM extension requests, and Geologic 

Sequestration MRV Plans. 

Examples of data elements in this category include the 

following: 
Draft deliberative: Do not cite or quote 

75

Χ The tier used to determine CO2 emissions from each 

stationary combustion unit under subpart C. 

Χ Criteria needed to decide which tier is allowed to be 

used to determine CO2 emissions from each stationary 

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

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

Χ 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., subpart Q Iron and Steel 

Production). 

Χ Whether the facility used a measured value, default 

emission factor, or unit-specific emission factor to 

determine CH4 and N2O emissions (e.g., subpart Y 

Petroleum Refineries). 

Χ Whether CO2 emissions were calculated using the trona 

input method, the soda ash output method, or a sitespecific emission factor method (e.g., subpart CC Soda 

Ash Manufacturing). 

Χ Method used for estimating waste disposal quantity and 

reason for its selection (e.g., subpart HH Municipal 

Solid Waste Landfills). 

Χ 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 (subparts E and V). 

Χ Identification of the parameter, subpart, and rule 

citation for which a BAMM extension is requested 

(subpart A). 

Χ Methods 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, and 

methods for establishing pre-injection environmental 

baselines (proposed subpart RR, __FR__, date). 

Rationale for Proposed Determination. EPA proposes to 

determine that the data elements in the Calculation 
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76

Methodology and Methodological Tier Category are “emission 

data” under 2.301(a)(2) because they are “information 

necessary to determine... the amount” of any emission emitted 

by the source. 

The method (including the methodological tiers in 

subpart C) used by a direct emitter to calculate emissions 

is “emission data” under 40 CFR 2.301(a)(2) because it is 

information necessary for the reporter to actually 

calculate the emissions and for EPA and the public to 

verify that an appropriate method was used. The method 

used by a facility is important for determining whether the 

facility selected the appropriate equations and used 

appropriate inputs to the calculations. For example, if a 

facility chooses to use a default emission factor method, 

they must select the appropriate factor provided in the 

rule, whereas if they select a site-specific emission 

factor method, they must collect additional data to support 

their own factor. Therefore, data elements that are used 

to determine what methodology is required (or allowed) to 

be used are also necessary to determine emissions because 

these data are also needed to determine whether the 

reporter selected the appropriate equations and inputs. 

As discussed in Section I.C. of this preamble, the 

1991 EPA notice of policy provided a list of information 
Draft deliberative: Do not cite or quote 

77

that EPA considered to constitute “emission data” under 40 

CFR 2.301(a)(1)(2)(i). That list includes “emission 

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

estimate has been calculated such as material balance, 

source test, use of AP-42 emission factors, etc.),” which 

is the same type of data elements as those in this data 

category and would include methods already provided in part 

98, as well as methods included in MRV Plans submitted by 

geologic sequestration facilities (proposed subpart RR, 

__FR__, date) and alternative methods included in 

applications submitted by adipic acid and nitric acid 

facilities (subparts E and V). 

 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). 

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 
Draft deliberative: Do not cite or quote 

78

specified in 40 CFR part 98 for calculating annual GHG 

emissions are missing. This category does not include the 

numeric values used as substitutes for missing data.17 

Rather, this category includes data elements that indicate 

the overall quality and reliability of the reported GHG 

emissions, such as the number of times substitute values 

are used and the method used to determine a substitute 

value. 

Each subpart of the Mandatory GHG Reporting Rule 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. 

 

17 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). 
Draft deliberative: Do not cite or quote 

79

The Missing Data Category contains the following data 

elements that all facilities are required to report under 

subpart A: 

Χ Identification of each data element used as an input 

for estimating annual GHG emissions for which a 

missing data procedure was used. 

Χ The total number of hours in the year that a missing 

data procedure was used for each data element. 

The source category subparts specify any other 

information that must be included in annual GHG reports 

when substitute values are used as inputs for estimating 

emissions in place of missing values. Provided below are 

some additional examples of the data elements in the 

Missing Data Category: 

Χ Number of times missing data procedures were used to 

estimate missing data, such as carbon content and 

molecular weight of fuels (subpart C), carbon content 

of raw materials (subparts BB and EE), phosphate rock 

consumption (subpart Z), and hourly CO2 concentration 

(subpart CC). 

Χ 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 (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 
Draft deliberative: Do not cite or quote 

80

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. The Mandatory GHG Reporting Rule 

requires sources to calculate annual mass emissions (metric 

tons per year) for each GHG. Therefore, every period of 

emissions needs to be considered, even if the monitors 

needed to measure or calculate emissions are temporarily 

not operating correctly. Each subpart specifies the 

frequency with which certain data elements used to 

calculate GHG emissions need to be collected, and specifies 

procedures (or allows a choice of methods) to be followed 

if data are missing because they were not collected at the 

required frequency or the monitor is not operating 

properly. 

Identification of all periods of missing data and use 

of substitute data during such periods are necessary for 

determining the annual GHG emissions. In order to 

determine if the reported annual emission data are complete 

and the correct methods were used to determine substitute 

values, EPA needs to know when reported data values are 

substitutes for missing data and what method was used to 

calculate substitute data (for subparts that provide a 

choice or allow the reporter to develop and describe their 
Draft deliberative: Do not cite or quote 

81

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). 

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 proposes to determine that 

the data elements in this category are not CBI under 

section 114(c) of the CAA. 

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 
Draft deliberative: Do not cite or quote 

82

with the operation of the process. The data elements 

assigned to this category are required to be reported under 

one or more direct emitter source category subparts of part 

98, but are not used as inputs to GHG emission equations 

provided in the rule.18 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: 

Χ 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). 

Χ 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). 

Χ The number of units (e.g., kilns, furnaces, boilers, 

etc.) at a facility. 

Χ The type of emission control technology used. 

Χ 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 

subpart I, ___FR ____, date). 

 

18 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 

subpart C) are assigned to the Calculation Methodology or 

Methodological Tier Category described in Section II.C.5. and are not 

assigned to this category. 
Draft deliberative: Do not cite or quote 

83

Χ Description of the gas collection system, including 

capacity and number of wells in each gas collection 

system (subpart HH and proposed subpart TT, (74 FR 

16448, April 10, 2009)19. 

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 40 

CFR 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, 

Χ 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. 

 

19 The industrial landfills source category was proposed with Municipal 

Landfills under subpart HH in the April 10, 2009 proposal (74 FR 

16448). However, EPA has since decided to separate landfills into two 

subparts: subpart HH for Municipal Landfills (promulgated October 30, 

2009 (74 FR 56374)) and subpart TT for industrial landfills. 
Draft deliberative: Do not cite or quote 

84

Χ The requirement to report information on the 

characteristics of control and abatement devices does 

not disclose information that is proprietary. While 

the disclosure of these data will reveal specific 

details about the abatement technologies being used, 

such information is not proprietary or sensitive 

information and not likely to reveal proprietary 

information with regard to production, manufacturing 

process design, or raw materials consumed. For 

example, the proposed subpart I, Electronics 

Manufacturing (__ FR , date), 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. 

Χ Descriptions of GHG collection systems and design 

capacities of landfills do not reveal information that 

is proprietary or sensitive in nature. For example, 

subpart HH, Municipal Landfills and subpart TT, 

Industrial Landfills (proposed_74 FR 16448, April 10, 

2009) 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. 

Χ 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. 
Draft deliberative: Do not cite or quote 

85

As shown above, the information required by the data 

elements in this category is not the type of information 

that could provide competitors with business insights 

and/or a competitive advantage over the reporting facility. 

Further, the information to be reported is general and 

would not contain details regarding product 

characteristics, actual production data (e.g., raw material 

consumption and the quantity of product produced), or 

operating efficiency (e.g., amount of product produced per 

unit of raw material consumed). It does not provide data 

that could allow competitors to infer market share, 

production costs, or pricing structures. For the reasons 

stated above, EPA finds that releasing the data in this 

category would not be likely to cause substantial harm to 

the reporting business’s competitive position. 

Further, certain data elements in this category are 

already being made publicly available. Facility and unitlevel production capacity data for many industries subject 

to part 98 are already available in the public domain as 

part of data released by other reporting programs or 

through reference materials available for purchase or 

through the Internet. Several publications contain 

production capacity for facilities. For example, 

production capacity for the iron and steel industry is 
Draft deliberative: Do not cite or quote 

86

available through the Association for Iron & Steel 

Technology (http://steellibrary.com). SRI’s Chemical 

Economics Handbook publishes plant-level capacity data for 

both commodity and specialty chemicals 

(www.sriconsulting.com). The 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 section 114(c) of the CAA. 

8. The Unit/process Operating Characteristics that are Not 

Inputs to Emission Equations Category 

As explained in Section I.C of this preamble, EPA is 

proposing to determine that the data elements in this 

category (none of which are inputs to equations/calculation 

methods or information otherwise needed to calculate or 

determine emissions) are not “emission data” under 40 CFR 

2.301(a)(2)(i) for purposes of determining the direct 

emitters’ GHG emissions to be reported under part 98. For 

the reasons stated below, EPA proposes to determine that 
Draft deliberative: Do not cite or quote 

87

the data elements in this category are not CBI under 

section 114(c) of the CAA. 

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 9820. 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: 

Χ Total number of source operating hours in the 

reporting year. 

Χ Number of operating kilns. 

Χ Description of the flare service, e.g., general, unit, 

emergency, or back-up for refineries (subpart Y). 

Χ Type of vessel into which material that has an 

equilibrium vapor-phase concentration of CH4 of 0.5 

volume percent or greater is loaded (subpart Y). 

Χ Sampling analysis results for carbon content of 

consumed petroleum coke as determined for QA/QC of 

supplier data (subparts G, BB, and EE). 

 

20 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 subpart C) are assigned 

to the Calculation Methodology or Methodological Tier Category 

described in Section II.C.5, and are not assigned to the unit/process 

operating characteristics category. 
Draft deliberative: Do not cite or quote 

88

Χ Surface area of the landfill containing waste (subpart 

HH). 

Χ Identification of combustion units that burned both 

process off-gas and supplemental fuel (subpart X). 

Χ 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) 

(subpart A). 

Rationale for Proposed Determination. EPA proposes to 

determine that the data elements in this category are not 

CBI under section 114(c) of the CAA. 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 40 

CFR 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, 

Χ The requirement in subpart Y to describe the flare 

service (how the flare is utilized) is satisfied by 

describing whether the flare was used as a general 

facility flare, a unit flare, or an emergency/back-up 

flare during the reporting year. Flares are commonly 

used in the industry for these purposes and no 

detailed specifications are required to be reported. 
Draft deliberative: Do not cite or quote 

89

Χ Similarly, the disclosure of general information 

reported in 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. 

Χ Releasing information, such as the number of operating 

kilns (subpart H) or the total number of operating 

hours in the reporting year for combustion 

units(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. 

Χ Identifying the combustion units that burned both 

process off-gas and supplemental fuel under 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. 

As explained above, the information required by the 

elements in this category is not the type of information 

that could provide competitors with business insights 

and/or a competitive advantage over the reporting facility. 

Further, the information to be reported is general and 

could not contain details regarding product 

characteristics, actual production data (e.g., raw material 

consumption or quantity of product produced), or operating 
Draft deliberative: Do not cite or quote 

90

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 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 the same or very similar to 

the carbon content data provided by suppliers. As 

discussed in section II.C.4 of this notice, 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 
Draft deliberative: Do not cite or quote 

91

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, same or similar types of 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 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 section 114(c) of the CAA. 

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 
Draft deliberative: Do not cite or quote 

92

emitters’ GHG emissions to be reported under part 98. For 

the reasons stated below, EPA proposes to determine that 

the data elements in this category are not CBI under 

section 114(c) of the CAA. 

Description of data elements. Data elements in this 

category include information about the site-specific 

calibration methods used to calibrate monitoring 

instruments required by the Mandatory GHG Reporting Rule, 

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 at 40 CFR part 98. Examples of data 

elements in this category include the following: 

Χ 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 (subpart C). 

Χ 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., subpart S Lime 

Manufacturing) 

• Estimating municipal waste composition from other 

or more refined waste categories (e.g., subpart 

HH Municipal Solid Waste Landfills) 
Draft deliberative: Do not cite or quote 

93

• Determining the average carbon content of coke 

(e.g., for catalytic cracking units and coking 

units under subpart Y Petroleum Refineries) 

 

Χ Test method used for performance tests (stack emission 

tests) (e.g., subpart V Nitric Acid Production) 

Χ Indication of whether the fraction of CH4 in landfill 

gas was determined based on measured values or the 

default value (e.g., 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 section 114(c) of the CAA. 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 40 

CFR part 98. The data elements in this category consist of 

general descriptions of methods and the frequency of 

conducting performance tests or sample analysis for the 

purposes of determining values used as inputs to equations. 

The data elements in this category do not reveal the 

numerical results of such tests. The data elements do not 

reveal any proprietary information or any other information 

that would likely provide insight for competitors to gain 

an advantage. For example, 

Χ 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 
Draft deliberative: Do not cite or quote 

94

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 (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 (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. 

Χ Similarly, the disclosure of measurement dates, 

locations and methods used for performance tests, 

locations of flow measurements, or types of meters 

used does not provide specific operational details 

about production processes. It also does not provide 

any numerical information about amounts or composition 

of products or raw materials consumption. 

Χ The requirement in 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 proprietary by 

nature. It 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 
Draft deliberative: Do not cite or quote 

95

would not contain details regarding product 

characteristics, production data (e.g., raw material 

consumed or quantity of product produced), or operating 

efficiency (e.g., amount of product produced per unit of 

raw material consumed). It also does not provide data that 

could allow competitors to infer market share, production 

costs, and pricing structures and thus gain a competitive 

advantage. 

Further, information on the test methods and frequency 

of measurement are already being submitted and made 

available to the public under other federal programs. For 

example, the Acid Rain program requires reporters to report 

the method used for determining fuel flow over a given 

period. This is similar to the requirement in 40 CFR 98.76 

of subpart G (Ammonia Manufacturing) 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 similar to the requirement to 

report the method used to determine higher heating value 

required under various subparts of the Mandatory GHG 

Reporting Rule. As discussed in Section I.D. of this 

preamble, the Acid Rain program currently makes all of the 

reported data available to the public. 
Draft deliberative: Do not cite or quote 

96

Summary. For the reasons stated above, EPA proposes 

to determine that the data elements in this data category 

are not CBI under section 114(c) of the CAA. 

10. The Production/Throughput Data that are Not Inputs to 

Emission Equations Category 

As explained in Section I.C of this preamble, EPA is 

proposing to determine that the data elements in this 

category (none of which are inputs to equations/calculation 

methods or information otherwise needed to calculate or 

determine emissions) are not “emission data” under 40 CFR 

2.301(a)(2)(i) for purposes of determining the direct 

emitters’ GHG emissions to be reported under part 98. For 

the reasons stated below, EPA proposes to determine that 

the data elements in this data category are CBI under 

section 114(c) of the CAA. 

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 40 CFR part 98. Each of these data elements is 

required to be reported under one or more of the direct 

emitting source category subparts of the Mandatory GHG 

Reporting Rule (40 CFR part 98). The data elements that 

must be reported differ for each source category. Provided 
Draft deliberative: Do not cite or quote 

97

below are some examples of the data elements in this 

Category: 

Χ Monthly or annual production quantity of products and 

byproducts, such as annual quantities of 

petrochemicals produced (subpart X), annual urea 

production (subpart G), monthly cement production 

(subpart H), annual production of ferroalloy products 

(subpart K), annual glass production (subpart N), 

synthetic fertilizer production (subparts G and V), 

and annual amount of byproducts produced (subpart S). 

Χ Beginning and end of year inventories for byproducts 

and wastes (subpart S). 

Χ Annual quantity of products sold and not sold (subpart 

S). 

Χ Product and byproduct characteristics, such as the 

type of petrochemical and other products produced 

(subpart X), carbon content of wastes (subpart EE), 

and the monthly results of chemical composition 

analysis of lime products and sold (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 40 CFR part 98. Disclosing a facility’s 

production/throughput data could be detrimental to a firm’s 

competitiveness by revealing confidential processes 

information and operational and marketing strategies. For 

example: 
Draft deliberative: Do not cite or quote 

98

Χ The disclosure of annual production quantities of 

products, used in conjunction with other publicly 

available data related to capacity, provides insight 

to a firm’s operational strengths and weaknesses. 

Competitors could determine at what percent capacity a 

firm is operating, which can reveal information on the 

financial and competitive strength of the firm. For 

example, it could reveal that a manufacturer is 

operating well below capacity and likely experiencing 

financial difficulties. Having such information could 

allow competitors to narrow the competition by 

adjusting their prices to the further detriment of the 

reporting company, or to formulate other competitive 

strategies or corporate acquisition strategies to the 

detriment of the reporting company. Having 

information on the percent of capacity at which a firm 

is operating could also reveal whether a manufacturer 

has existing capacity available to take on new 

customers in a growing market or is already at their 

maximum production and would need to invest capital to 

expand capacity in order to produce more. Having such 

information could give competitors insights to make 

competitive decisions on expanding their own 

production rates or altering their pricing strategies 

to the detriment of the reporting company. 

Χ The disclosure of annual production quantities — in 

particular, products sold and not sold — provides 

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 the 

Mandatory GHG Reporting Rule could lead to distortions 
Draft deliberative: Do not cite or quote 

99

in the market and could expose reporting parties to 

disadvantageous market conditions. 

Χ 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. 

Χ Information about production quantities of each 

product and the product mix of a firm may enable 

competitors to determine the type of production 

process used (since different processes can have 

different characteristic product mixes). Such 

information is proprietary and public disclosure could 

substantially harm a firm’s competitive position by 

revealing sensitive information. This information may 

also allow competitors to reasonably infer the types 

and approximate amounts of feedstocks consumed, which 

may enable competitors to devise strategies to compete 

for raw material resources. If in addition to 

production quantities, feedstock consumption data are 

also released under the Mandatory GHG Reporting Rule, 

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. 

Χ 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. 
Draft deliberative: Do not cite or quote 

100

Summary. For the reasons stated above, EPA proposes 

to determine that data elements in this category are CBI 

under section 114 of the CAA. 

Release of Aggregated Production Data. For data 

elements in this category, EPA could release the data in an 

aggregated format that would maintain the confidentiality 

of the data. For example, EPA could release production 

data aggregated at the national level for all sources in 

each source category. EPA solicits comments on whether and 

in what ways aggregated data would be useful to the public, 

and suggestions for ways in which the data could be 

aggregated without affecting the confidentiality of the 

underlying data. 

11. The Raw Materials Consumed that are Not Inputs To 

Emission Equations Category 

As explained in Section I.C of this preamble, EPA is 

proposing to determine that the data elements in this 

category (none of which are inputs to equations/calculation 

methods or information otherwise needed to calculate or 

determine emissions) are not “emission data” under 40 CFR 

2.301(a)(2)(i) for purposes of determining the direct 

emitters’ GHG emissions to be reported under part 98. For 

the reasons stated below, EPA proposes to determine that 
Draft deliberative: Do not cite or quote 

101

the data elements in this data category are CBI under 

section 114(c) of the CAA. 

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 40 CFR part 98 for 

calculating annual GHG emissions. Each of the data 

elements in this category is required to be reported under 

one or more subparts of part 98. Provided below are some 

examples of the data elements in this category: 

Χ Annual quantity of feedstock consumed (subpart G) 

Χ Annual quantity of carbonate based-raw material 

charged (subpart N) 

Χ Annual mass of reactants fed into a process (subpart 

O) 

Χ Names of carbon-containing feedstocks (subpart X) 

Χ Annual arithmetic average percent inorganic carbon in 

phosphate rock from monthly records (subpart Z) 

Χ Annual steam purchases (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 
Draft deliberative: Do not cite or quote 

102

data. Releasing these data would likely be detrimental to 

the operational and marketing strategies of the reporting 

facilities. For example: 

Χ 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. 

Χ 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. 

Χ 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. 

Χ 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. 

Χ 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 
Draft deliberative: Do not cite or quote 

103

facility. If in addition to raw materials 

consumption, production quantities data are also 

released under the Mandatory GHG Reporting Rule, 

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 

subpart AA, in combination with other production data, 

may reveal a facility’s operating efficiency. 

Competitors could use such information to steal market 

share by undercutting a firm’s pricing structure. 

Summary. For the reasons stated above, EPA proposes 

to determine that data elements in this category are CBI 

under section 114 of the CAA. 

12. The Process-Specific and Vendor Data Submitted in Best 

Available Monitoring Methods (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 proposes to determine that 

the data elements in this data category are CBI under 

section 114(c) of the CAA. 
Draft deliberative: Do not cite or quote 

104

Description of data elements. The data elements in 

this category including certain information submitted by 

reporters in petitions to extend the use of BAMM. These 

data elements are submitted once, as part of the petition, 

and are not submitted on a recurring basis in the annual 

GHG reports. The October 2009 final Mandatory GHG 

Reporting Rule 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 [add citations if 

available]. 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 the MRR. Provided below are some 

examples of the data elements in this Category: 

Χ Location where each monitor will be installed. 

Process diagrams may be included to show specific 

locations. 
Draft deliberative: Do not cite or quote 

105

Χ Information on alternative monitoring equipment 

suppliers and delivery dates investigated. 

Χ Supporting documentation demonstrating that it is not 

possible to isolate the equipment and install 

monitoring instruments without a full process unit 

shutdown. 

Χ Information on process unit shutdowns including 

frequency and dates of previous and planned shutdowns. 

Rationale for Proposed Determination. 

EPA proposes to determine that the data elements in 

this data category are CBI under section 114(c) of the CAA 

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 the Mandatory 

GHG Reporting Rule. 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: 

Χ 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 
Draft deliberative: Do not cite or quote 

106

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. 

Χ 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. 

Χ 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 
Draft deliberative: Do not cite or quote 

107

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 section 114 of the CAA. 

D. Suppliers

The Mandatory GHG Reporting Rule 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 

part 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 covers all of the data elements required 

to be reported by the supplier source categories 

(subparts). Some facilities that are producers of fuels or 
Draft deliberative: Do not cite or quote 

108

industrial gases must report under both the direct emitter 

source categories and supplier source categories. For 

example, petroleum refineries must report the data elements 

required by subpart Y (Petroleum Refineries) and subpart MM 

(Suppliers of Petroleum Products). The data elements 

reported under direct emitter subparts (e.g., 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, subpart Y 

does not require reporting of product-specific production 

quantities and compositions that are reported under 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 subpart L (Fluorinated 

Gas Production)(__FR___, date) and the supplier 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 subpart L to 

the appropriate direct emitter data category and each data 

element reported under subpart OO to the appropriate 

supplier data category. However, the proposed 

determination that the data element is CBI is the same for 
Draft deliberative: Do not cite or quote 

109

the data element reported under the proposed direct emitter 

subpart L and the supplier 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 

subpart RR (Injection and Geological Sequestration of CO2) 

that are related to the injection and sequestration of CO2. 

All other data elements for 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 whether the data elements in each supplier 

category are CBI under section 114(c) of the CAA. 

1. Data Categories and Confidentiality Analysis 
Draft deliberative: Do not cite or quote 

110

The 11 data categories for suppliers are as follows 

and are further described in Sections II.D.2 through 

II.D.12 of this notice: 

Χ GHGs reported. 

Χ Production/throughput quantities and composition. 

Χ Identification information. 

Χ Unit/process operating characteristics. 

Χ Calculation, test, and calibration methods. 

Χ Data elements reported for periods of missing data 

that are not related to production/throughput or 

materials received. 

Χ Emission factors. 

Χ Amount and composition of materials received. 

Χ Data elements reported for periods of missing data 

that are related to production/throughput or materials 

received. 

Χ Supplier customer and vendor information. 

Χ Process-specific and vendor data submitted in BAMM 

extension requests. 

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

describe EPA’s proposed CBI determination and rationale for 

each of the 11 supplier data categories. A list of all the 

data elements in each category, by subpart, is provided in 

a memorandum (see Memorandum “Data Category Assignments for 

Reporting Elements” in Docket EPA-HQ-OAR-2009-0924 and the 

Web site (www._____). 

2. The Greenhouse Gases Reported Category 
Draft deliberative: Do not cite or quote 

111

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 for 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 the Mandatory 

GHG Reporting Rule, 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 subpart A and 

the subparts of the Mandatory GHG Reporting Rule that are 

applicable to suppliers. This date category also includes 

CO2 data reported under proposed subpart RR (Injection and 

Sequestration of CO2)(__FR___, date), including the 

quantities of CO2 received, produced, and injected for 

geologic sequestration facilities. Examples of the data 

elements in this category include the following: 
Draft deliberative: Do not cite or quote 

112

Χ 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 (subpart A). 

Χ Quantity of each GHG from each applicable supply 

category (subpart A). 

Χ 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 

(subparts LL, MM, NN) in a calendar year. Examples of 

individual products would be the different types and 

grades of gasoline, distillate fuel oils, 

petrochemical feedstocks, and other products supplied 

by a refinery as listed in Table MM-1 of the Mandatory 

GHG Reporting Rule. 

Χ CO2 quantities that would be emitted from complete 

combustion of each coal-based liquid fuel or petroleum 

product imported and exported (subparts LL and MM) in 

a calendar year. 

Χ 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 (subpart NN). 

Χ Mass of each fluorinated gas and N2O produced and 

destroyed by industrial GHG producers; mass of each 

industrial GHG imported or exported (subpart OO). 

Χ Mass of each fluorinated gas imported or exported in 

pre-charged equipment or closed-cell foams (proposed 

subpart QQ, ___FR ____, date)). 

Χ Mass of CO2 imported, exported, or supplied by a 

producer (subpart PP). 

Χ Mass of CO2 received, produced and injected for 

geologic sequestration (proposed subpart RR, __FR__, 

date). 

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 
Draft deliberative: Do not cite or quote 

113

Gas Reported Category. The table 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 

(Subpart) 

Data Elements Are these 

data CBI? 

If CBI, Intended

Aggregated Level 

of Release21

Total facilitylevel CO2e from 

subparts LL-PP22;

Facility-level 

CO2 from each 

subpart23

Suppliers of No 

Coal-Based 

Liquid Fuels 

and Petroleum 

Products 

(subparts LL 

and MM): 

Producers 

Product-specific 

CO2 

Yes Release national 

aggregation of 

CO2 by product24

(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 

Total importer 

level CO2e from 

subparts LL-PP; 

Importer level 

No 

 

21 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. 

22 This data element, reported under subpart A, represents the 

aggregation of CO2e from all supplier source categories at the facility. 

For example, if a refinery supplies petrochemical products (subpart MM) 

and is also a CO2 supplier (subpart PP) the facility-level CO2e would 

represent the CO2e for both activities combined. 

23 This data element, reported under subpart A, represents an 

aggregation of CO2 (by source category) from multiple individual 

products the reporter supplies. 

24 National aggregation would be released only if there are three or 

more reporters. 
Draft deliberative: Do not cite or quote 

114

Source 

Category 

(Subpart) 

Data Elements Are these 

data CBI? 

If CBI, Intended

Aggregated Level 

of Release21

Products 

(subparts LL 

and MM): 

Importers 

CO2 from each 

subpart23; 

Product-specific 

CO2 

Total exporter 

level CO2e from 

subparts LL-PP; 

Exporter level 

CO2 from each 

subpart23

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 

(subpart NN): 

LDCs 

Total LDC-level 

CO2e from 

subparts LL 

through PP; 

LDC-level CO2

from subpart 

NN23; Productspecific CO2 

No 

Total Facilitylevel CO2e from 

subparts LL 

through PP; 

Facility-level 

CO2 from subpart 

NN23. 

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 
Draft deliberative: Do not cite or quote 

115

Source 

Category 

(Subpart) 

Data Elements Are these 

data CBI? 

If CBI, Intended

Aggregated Level 

of Release21

propane) 

Total facilitylevel CO2e from 

subparts LL 

through PP 

No25 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 

subpart 26(e.g., 

national N2O 

quantity from all 

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) 

Suppliers of 

CO2 (subpart 

PP): 

Annual mass or 

volume of CO2 by 

each flow meter 

No 

 

25 In cases where a facility produces a single product, this data 

element will be held as CBI. 

26 For subpart OO, national aggregation would be released only for 

products where there are three or more reporters. 
Draft deliberative: Do not cite or quote 

116

Source 

Category 

(Subpart) 

Data Elements Are these 

data CBI? 

If CBI, Intended

Aggregated Level 

of Release21

Producers Total facilitylevel CO2e from 

subparts LL 

through PP; 

 

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 

No 

Annual mass or 

volume of CO2 

transferred 

onsite or 

produced measured 

by flow meter 

Yes Aggregated data 

released at the 

facility-level 

Injection and 

Sequestration 

of CO2

(proposed 

subpart RR, 

__FR__, date)

Facility-level 

data on CO2 

received, 

produced, and 

injected 

No 

Importers and 

Exporters of 

Fluorinated 

Greenhouse 

Gases 

Contained in 

Pre-charged 

Equipment or 

Closed-cell 

Foams 

Total 

importer/exporter 

level CO2e from 

subparts LL 

through PP 

 

No 
Draft deliberative: Do not cite or quote 

117

Source 

Category 

(Subpart) 

Data Elements Are these 

data CBI? 

If CBI, Intended

Aggregated Level 

of Release21

(proposed 

subpart QQ) 

(__FR ____, 

date): 

Importer/exporter 

level GHG 

quantities, by 

gas, from subpart 

QQ 

Yes Release national 

aggregation, by 

GHG for all 

facilities 

covered by 

subpart QQ 

As shown in Table 4, EPA proposes to determine that 

the reported facility-level or importer/exporter-level CO2e 

quantities, and the facility-level or importer/exporterlevel CO2 quantity by supply category are not CBI because 

the release of these data elements is unlikely to cause 

substantial harm to suppliers reporting these data 

elements. These data elements represent the aggregated 

emissions from a mixture of products supplied to the 

economy by each supplier. With the exception of some 

industrial GHGs suppliers described below, fuel and 

industrial GHG suppliers produce, import, or export a 

number of different products for sale or delivery. The 

disclosure of these suppliers’ facility-level CO2e and CO2

could not be used to back-calculate and reveal annual 

production rates of particular products or industrial gases 

or other sensitive information. Therefore, release of 

these data is not likely to harm the competitive positions 

and market strategies of reporting entities. 
Draft deliberative: Do not cite or quote 

118

As noted in the footnote in Table 4, in cases where 

suppliers of industrial GHGs produce a single product, GHG 

quantities would be considered CBI because they could be 

used to back calculate production rates of particular 

products or other sensitive information. 

For suppliers (other than importers of coal-based 

liquid fuels and petroleum products, LDCs, and suppliers of 

CO2), EPA proposes to determine as CBI reported facility and 

importer/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 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 
Draft deliberative: Do not cite or quote 

119

rates, which EPA has determined are entitled to 

confidential treatment. See the supplier 

“Production/Throughput Quantity and Composition” category 

discussion in Section II.D.3. of this preamble for the 

complete explanation of why production data are CBI and the 

types of harm likely to be caused by releasing data that 

reveal the amount of product a facility or company produces 

and supplies. 

For fuels (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. Subparts MM and NN provide 

default emission factors, so if the GHG associated with a 

particular fuel product is released, competitors could 

calculate the amount of fuel product a facility supplies. 

For industrial GHG producers, each GHG is a product, so 

release of GHG data by product equates to direct release of 

the quantity of each product supplied. 

As mentioned earlier in this section, there are four 

product-specific GHG data, disclosed at the reported level, 

that are not considered CBI. The reasons for these 

exceptions are as follows: 

1. EPA does not consider CO2 quantities that 

importers of petroleum products and coal-based 

liquids must report by product at the importer-
Draft deliberative: Do not cite or quote 

120

level to be CBI. The Energy Information 

Administration (EIA) already releases the 

quantity of each petroleum product and coal-based 

liquids imported. Therefore, these product 

quantities are already in the public domain. 

2. EPA does not consider the CO2 quantities to be 

reported by product at the individual LDC level 

to be CBI. The EIA already releases the 

quantities of products distributed by LDCs. LDCs 

are defined in 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 
Draft deliberative: Do not cite or quote 

121

(other than the four exceptions described above), EPA 

proposes to aggregate these GHG data, by gas, for each 

product and release the aggregated data by source category 

as shown in Table 4 of this preamble. For example, EPA 

would release the CO2 associated with the total amount of 

each grade of gasoline, fuel oil, etc. supplied by all 

producers of petroleum products combined. As another 

example, EPA would also release the total amount of each 

GHG supplied in the U.S. by all suppliers of industrial 

gases in cases where the gas is produced at three or more 

facilities. Release of the aggregated data, which disclose 

the GHG associated with total national supply of a product, 

is not likely to cause substantial harm to the competitive 

position of businesses because competitors could not 

determine the products or quantities produced by an 

individual facility or corporation from this national level 

of data. 

EPA solicits comments on the extent to which 

aggregated data are useful to the public. EPA also 

solicits comments on the aggregation approach described 

above or suggestions on alternative approaches to 

aggregating data for this data category. 

Summary. EPA proposes to determine that CO2e 

quantities reported by suppliers of petroleum products, 
Draft deliberative: Do not cite or quote 

122

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

industrial GHGs, and CO2 are not CBI under section 114(c). 

EPA proposes to determine that the CO2 quantities reported 

at the facility or importer/exporter-level are CBI, with 

four exceptions described above (which are determined to be 

non-CBI). EPA proposes to determine that CO2 quantities 

reported by importers of petroleum products and coal-based 

liquids, CO2 quantities reported by LDCs, and CO2 quantities 

reported by suppliers CO2 are not CBI. 

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 

quantities and product compositions (including products 

produced, imported, or exported). Suppliers are required 
Draft deliberative: Do not cite or quote 

123

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 subpart LL, suppliers of coal-to-liquids (CTLs) 

products must report: 

Χ Annual quantity of each product listed in Table MM-1 

of the GHG Reporting Rule that leaves the CTL 

facility. 

Χ Percent of the volume of each product that is 

petroleum-based. 

Under subpart MM, suppliers of petroleum products must 

report: 

Χ Annual quantity of each petroleum product and natural 

gas liquid (NGL) that leaves the refinery. 
Draft deliberative: Do not cite or quote 

124

Χ Annual quantity of each product and NGL imported or 

exported 

Χ Percent of the volume of each petroleum product or NGL 

that is petroleum-based (when petroleum-based products 

are blended with biomass based products). 

Χ Carbon share and density of products produced, 

imported, or exported. 

Under subpart NN, suppliers of natural gas and NGLs 

(NGL fractionators and LDCs) must report: 

Χ Annual quantity of ethane, propane, normal butane, 

isobutane, and “pentanes plus” products they supply. 

Χ Annual quantity of propane that the NGL fractionator 

odorizes at the facility and delivers to others. 

Under subpart OO, suppliers of industrial GHGs must 

report: 

Χ Annual quantity of nitrous oxide or each fluorinated 

GHG that was produced. 

Χ Throughput information including the total mass of the 

reactants, by-products, and wastes permanently removed 

from each fluorinated GHG or nitrous oxide production 

process. 

Χ Annual quantity of nitrous oxide or each fluorinated 

GHG that was sold or transferred for transformation 

and destruction. 

Χ Annual mass of nitrous oxide or each fluorinated GHG 

that was imported or exported in bulk. 

Χ Commodity code of the fluorinated GHGs or nitrous 

oxide shipped. 

Under proposed subpart QQ (___FR ____, date), 

suppliers, importers and exporters of pre-charged equipment 

and closed cell-foam products must report: 
Draft deliberative: Do not cite or quote 

125

Χ Quantity of the fluorinated GHG contained in the foam 

in each appliance imported or exported. 

Χ Number of each type of appliance containing closedcell foam imported or exported. 

Χ Density of the fluorinated GHG contained in closed 

cell-foams that are not inside of appliances. 

Χ Quantity of foam imported or exported for each type of 

closed-cell foam 

Under subpart PP, suppliers of CO2 must report: 

Χ Annual mass of CO2 imported or exported. 

Χ 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). 

Rationale for Proposed Determination. EPA proposes to 

determine that the data elements in the supplier 

production/throughput quantity and composition data 

category, with the exception of certain data elements that 

are already publicly available, are CBI under section 

114(c) of the CAA. Table 5 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. 
Draft deliberative: Do not cite or quote 

126

Table 5. Proposed Confidentiality Determination and Level 

of Release for Supplier Production and Throughput Data 

Source Category 

Subpart 

Level 

Reported 

Are these 

Data CBI27

(Y/N)? 

If CBI, Proposed 

Aggregated Level of 

Release28

Suppliers of CoalBased Liquid Fuels 

and Petroleum 

Products (Subparts 

LL and MM): 

Producers

Facility 

level, by 

product 

Yes Release national 

aggregation, by 

product29,30

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 

Suppliers of 

Industrial GHGs 

(Subpart OO): 

Facility 

level, by 

fluorinated 

Yes Release national 

aggregation, by 

fluorinated GHG 31

 

27 Production/throughput data are reported by product. 

28 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. 

29 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 

subpart MM that supply No. 6 fuel oil). 

30 For subpart LL, national aggregation will be released only if there 

are three or more reporters. 
Draft deliberative: Do not cite or quote 

127

Source Category 

Subpart 

Level 

Reported 

Are these 

Data CBI27

(Y/N)? 

If CBI, Proposed 

Aggregated Level of 

Release28

Producers GHG 

Facility 

level 

throughput32

information, 

by process 

Yes N/A 33

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 

Suppliers of 

CO2(PP): Importers 

and Exporters 

Importer and 

Exporter 

level total 

CO2

imported/expo

rted 

No 

 

31 For subpart OO, national aggregation would be released only for 

products where there are three or more reporters. 

32 Throughput information includes the total mass of the reactants, byproducts, and wastes permanently removed from each fluorinated GHG or 

nitrous oxide production process. 

33 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. 
Draft deliberative: Do not cite or quote 

128

Source Category 

Subpart 

Level 

Reported 

Are these 

Data CBI27

(Y/N)? 

If CBI, Proposed 

Aggregated Level of 

Release28

CO2 mass or 

volume 

measured by 

flow meter, 

scales and 

weigh bills 

Yes Release 

Importer/exporter 

level aggregation 

Importer and 

Exporter 

level 

annually 

aggregated 

production 

information, 

by end use 

application 

No 

Importers and 

Exporters of 

Fluorinated 

Greenhouse Gases 

Contained in Precharged Equipment 

or Closed-cell 

Foams (proposed 

subpart QQ 

__FR____, date): 

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 

Injection and No 

Geological 

Sequestration of 

CO2 (Proposed 

Subpart RR, 

__FR___, date) 

Annual mass 

or volume of 

CO2

transferred 

onsite and 

produced 

measured by 

each flow 

Yes Aggregated data 

released at the 

facility-level 
Draft deliberative: Do not cite or quote 

129

Source Category 

Subpart 

Level 

Reported 

Are these 

Data CBI27

(Y/N)? 

If CBI, Proposed 

Aggregated Level of 

Release28

meter 

Facilitylevel data on 

CO2 received, 

produced, and 

injected 

No 

As shown in Table 5, 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: 

Χ Producers of CTLs and petroleum products (subparts LL 

and MM) 

Χ Exporters of CTLs and petroleum products (subparts LL 

and MM) 

Χ NGL fractionators (subpart NN). 

Χ Producers of industrial GHGs (subpart OO) 

Χ Importers and exporters of industrial GHGs (subpart 

OO) 

Χ Importers and exporters of fluorinated greenhouse 

gases contained in pre-charged equipment or closedcell foams (subpart QQ, ___FR ____, date). 

Disclosure of these data would likely cause 

substantial harm to the competitive positions of businesses 

reporting these data. Releasing these data could be 
Draft deliberative: Do not cite or quote 

130

detrimental to the operational and marketing strategies of 

the reporting parties. For example: 

Χ 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. 

Χ 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 
Draft deliberative: Do not cite or quote 

131

enable competitors to devise strategies to steal 

specific customers or even key employees. Changes in 

the mix of products produced could reveal marketing 

strategies. In many cases, an accurate estimate of 

the market position of a firm is difficult to procure, 

and the disclosure of such information through the GHG 

Reporting Rule could harm the competitive position of 

reporting parties. 

Χ 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. 

Χ 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, EPA proposes that the following 

data elements are not CBI: 

Χ LDC-level production/throughput quantity and 

composition data reported by natural gas LDCs (subpart 

NN) 

Χ Importer-level data on quantities and compositions of 

products imported by CTL and petroleum product 

importers (subparts LL and MM) 
Draft deliberative: Do not cite or quote 

132

Χ CO2 production/throughput data reported by CO2

producers and at the importer or exporter level by 

importers, and exporters of CO2 (subpart PP). 

Χ CO2 injection data reported by CO2 injection and 

geologic sequestration facilities (proposed subpart 

RR, __FR__,date). 

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 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 data 

production/throughput data elements under subparts LL and 

MM that are not collected (and therefore not released) by 

the EIA, these data elements are technically similar to the 

data already released and their disclosure is not likely to 

cause substantial competitive harm. For example, subparts 

LL and MM require reporting of carbon share if the importer 
Draft deliberative: Do not cite or quote 

133

chooses to use a particular GHG calculation method (the 

rule provides different calculation options). Carbon share 

is a product composition data element. While EIA does not 

collect and release this particular data element, it does 

collect and release other importer-level product 

composition data for petroleum products imported (e.g., 

sulfur content and API gravity). Subpart MM also requires 

importers to report the percent of the 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 biomassblended products is already publicly available. For 

example, the percent of ethanol, and subsequently 

petroleum, in blended fuels is disclosed because federal 

standards allow producers to blend only a certain 

percentage of ethanol in most gasoline products. Given the 

amount and type of importer-level product quantity and 

composition data already available, the release of similar 

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 
Draft deliberative: Do not cite or quote 

134

collected and released by EIA (reporter-specific higher 

heating value 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 subpart NN are entities that are 

regulated as separate operating companies by state public 

utility commissions or operated as independent municipallyowned distribution systems. As such, LDC data related to 

rates and distribution quantities are already public 

knowledge. Moreover, LDCs are not subject to the same 

competitive marketplace experienced by other supplier 

categories. They generally serve one area and rarely 

overlap their distribution networks with those of their 

competitors. 

Also already publicly available are facility-level 

production and throughput data from producers of CO2 and 

exporter/importer level data from importers and exporters 

of CO2. Only three states have facilities producing CO2

from natural wells and all three states currently release 

the data. Therefore, facility and flow 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 
Draft deliberative: Do not cite or quote 

135

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). This is the same or similar data 

reported and proposed for release under the GHG reporting 

rule. In particular, 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 subpart PP. Since CO2 production 

data aggregated at the facility-level is already publicly 

available for producers of CO2, the flow meter-specific data 

reported by producers is unlikely to disclose additional 

process-specific data that is not already discernable from 

data that is publicly available. 

The GHG Reporting Rule requirement for suppliers of CO2

to report the amount of CO2 transferred to each end-use 

application is similar to the percentage of total CO2

production used for EOR and non-EOR applications reported 

in the inventory. Additionally, the estimated CO2

extraction (i.e., production) data from power and 

industrial facilities engaged in RD&D efforts are routinely 
Draft deliberative: Do not cite or quote 

136

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 similar to 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 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 the Mandatory GHG Reporting Rule are not CBI 

because much of the data are already publicly available, 

and the other data are similar enough that disclosure of 

data in this category is not likely to cause harm to the 

competitive position of CO2 suppliers. 
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137

For proposed subpart RR (__FR__, date), 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 the EPA’s Underground 

Injection Control Program. Two states currently publish on 

their Web sites the data for the 48 CO2 injection facilities 

in their jurisdictions. Such publication suggests that CO2

injection data at the facility and flow meter-level is 

unlikely to be considered sensitive commercial information. 

We are also not aware of any competitive harm that resulted 

from the disclosure of such information. We therefore find 

that the disclosure of these data elements is unlikely to 

cause substantial harm to a reporting company’s competitive 

position. EPA solicits comment on whether detailed CO2

injection data or any other data to be reported under 

proposed 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) 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 
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138

aggregated national level (by subpart and by product) that 

would not compromise the confidentiality of these data 

elements, as listed in Table 5. EPA proposes that the 

following three types of production/throughput data are not 

CBI because they are already publicly available: facilitylevel 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 also solicits suggestions on 

alternative approaches to aggregating data for this data 

category and comments on the extent to which aggregated 

data are useful to the public. 

4. The Identification Information Category 

EPA proposes to determine that the supplier 

identification information is not CBI under section 114(c) 

of the CAA. 

Description of the Data Elements. Subpart A of 40 CFR 

part 98 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 subpart A. 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 
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139

the annual report; importer number for the shipment, and a 

signed and dated certification statement of the accuracy 

and completeness of the annual report, provided by the 

designated representative of the owner or operator. 

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 section 114(c) of 

the CAA. 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 
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140

for suppliers of various fossil fuels and industrial GHGs, 

including those subject to the Mandatory GHG Reporting 

Rule, is already collected and released to the public under 

various EPA and Department of Energy (DoE) programs. 

Examples include the EPA’s Toxic Release Inventory 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, 

which are the same as or similar to the publicly available 

supplier identifying information described above. 

Summary. For the reasons described above, EPA 

proposes to determine that the data elements in the 

Supplier Identification Information Category are not CBI 

under section 114(c) of the CAA. 

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) (__FR ____, 

date), and proposed subpart RR (Injection and Geological 

Sequestration of Carbon Dioxide) (__FR ____, date). EPA 

proposes to determine that one of the data elements under 
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141

subpart OO is CBI under CAA section 114(c) and the 

remaining data elements under subpart OO, subpart PP, and 

proposed subparts QQ and RR are not CBI. 

Description of Data Elements. 

The following data elements are included in this 

category: 

Χ The estimated percent transformation efficiency of 

each production process for the fluorinated GHG 

produced(subpart OO).34

Χ

The destruction efficiency (DE) of each fluorinated 

GHG destruction unit(subpart OO).21 

Χ

The chemical identity of the fluorinated GHG(s) used 

in the performance test conducted to determine DE 

(subpart OO). 21 

Χ Dates on which the fluorinated GHGs or nitrous oxide 

were imported (subpart OO and proposed subpart QQ, 

___FR ____, date). 

Χ Port of entry through which the fluorinated GHGs or 

nitrous oxide were imported (subpart OO and proposed 

subpart QQ, ___FR ____, date). 

Χ Date on which the fluorinated GHGs and nitrous oxide 

were exported from the U.S. or its territories 

(subpart OO and proposed subpart QQ, ___FR ____, 

date). 

Χ Port from which the fluorinated GHGs and nitrous oxide 

were exported from the U.S. or its territories 

(subpart OO and proposed subpart QQ, ___FR ____, 

date). 

Χ Percent of a captured CO2 stream that is biomass-based 

(subpart PP). 

 

34 Under 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.
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142

Χ 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 subpart RR, ___FR 

____, date). 

Χ

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 subpart OO, 

are CBI under section 114(c) 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. 

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 
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143

well as the chemical identity of the fluorinated GHG(s) 

used in the performance test conducted to determine the 

destruction efficiency under subpart OO, are not CBI. 

These data elements are not the type of information 

ordinarily protected as commercial or financial and 

sensitive in nature. The destruction efficiency, which is 

determined by performance test, is used in Equation OO-4 of 

the Mandatory GHG Reporting Rule to calculate the mass of 

fluorinated GHGs destroyed. 

The fluorinated GHG(s) used for 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. Therefore, 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, such as the amount of a specific product that 

is destroyed or supplied by a facility. Nor does it 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. 
Draft deliberative: Do not cite or quote 

144

The remaining data elements in this category are the 

dates and ports of shipments of industrial GHGs (subpart OO 

and proposed subpart QQ (___FR ____, date)), the percentage 

of a captured CO2 stream that is derived from biomass 

(subpart PP), and the source of CO2 received by injection 

and geologic sequestration facilities (proposed subpart RR, 

__FR__, date). The dates of import and export shipments, 

and the ports of entry or exit under 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. 
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145

For the reporting of percent of captured CO2 that is 

biomass-based under subpart PP, this data element is 

already publicly available and therefore not CBI. As 

discussed in the section Production/Throughput Quantities 

and Composition Category (see Section II.D.3. of this 

preamble), facility specific information on CO2 production 

is already publicly available. 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 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 

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 section 114(c). 

6. The Calculation, Test, and Calibration Methods for 

Suppliers Category 
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146

EPA proposes to determine that the emission 

calculation methodology and the testing and calibration 

methods specified in 40 CFR part 98 applicable to the 

suppliers of fuels and industrial greenhouse gases are not 

CBI under CAA section 114(c). 

Description of the Data Elements. The Mandatory GHG 

Reporting Rule 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 the Mandatory GHG 

Reporting Rule 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. 
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147

This data category also includes data elements 

submitted to EPA in BAMM extension requests. Examples of 

data elements in this category include the following: 

Χ The methods used by the reporter to measure the 

quantity of each product or raw material used in 

calculating potential emissions. 

Χ The methods used by the reporter to collect and 

analyze samples of raw material or product for density 

and carbon share. 

Χ The methods used by the reporter to develop reporterspecific values for higher heating values and GHG 

emission factors. 

Χ The methods used by the reporter to determine the 

efficiency of units used for fluorinated GHG 

destruction. 

Χ The methods used by the reporter to record the mass of 

fluorinated GHG destroyed. 

Χ 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. 

Χ The methods used by the reporter to estimate the 

fraction of fluorinated GHGs fed into a transformation 

process that is actually transformed. 

Χ 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. 

Χ Identification of the parameter, subpart, and rule 

citation for which a BAMM extension is requested 

(subpart A). 

Rationale for the Proposed Determination. 

EPA proposes to determine that the data elements in 

this category are not CBI under section 114(c) of the CAA. 
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148

EPA finds that disclosure of the information is not likely 

to cause substantial harm to the competitive positions of 

suppliers reporting this information under part 98. 

These methods, many of which are specified in the 

Mandatory GHG Reporting Rule, 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 section 114(c) of the CAA. 
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149

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 section 114(c) of the CAA. 

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). The data elements in 

this category are as follows: 

Under subpart A (general provisions), all suppliers 

must report the following: 

Χ The data elements for which a substitute value was 

determined for missing data. 

Χ The total number of hours in the year that a missing 

data procedure was used. 

Under 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: 

Χ Measure quantity of natural gas and NGLs supplied to 

downstream facilities. 

Χ Develop HHVs. 

Χ Develop emission factors. 
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150

Under 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: 

Χ Measure the quantity of CO2. 

Χ Measure the concentration of CO2 in a stream. 

Χ Measure the density of a CO2 stream. 

For subparts LL, MM, and OO, suppliers report only the 

data elements listed for the Missing Data Category under 

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 

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 
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151

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 the Mandatory GHG Reporting Rule. Such 

information are not of a competitive or proprietary nature. 

Neither can they be used to determine proprietary or 

sensitive information, such as the amount or composition of 

a specific product being supplied or a specific material 

received, or details about the specific production 

processes used. 

Summary. For the reasons stated above, EPA proposes 

to determine that the data elements in this category are 

not CBI under section 114(c) of the CAA. 

8. The Emission Factors Category 

EPA proposes to determine that the data elements in 

this category are CBI under section 114(c) of the CAA 

because their release is likely to cause substantial harm 

to the competitive positions of the suppliers reporting 

these data. 

Description of Data Elements. The Mandatory GHG 

Reporting Rule requires suppliers subject to 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 
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152

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: 

Χ Calculated CO2 emission factors for each feedstock 

received and product produced, imported, or exported 

(subparts LL and MM). 

Χ Calculated CO2 emission factors for natural gas and 

each NGL product (subpart NN). 

These emission factor data are used to calculate the 

GHG quantities that are reported by suppliers under 

subparts LL, MM, and NN. Suppliers report the GHG 

quantities (in CO2) that would ultimately be emitted 

(throughout the economy) from complete combustion or 

oxidation of each fuel product supplied. Therefore, these 

emission factors are critical for calculating the CO2 and 

CO2e quantities reported by suppliers. 

Rationale for the Proposed Determination. EPA 

proposes to determine that the data elements in this 

category are CBI because their release is likely to cause 

substantial harm to the competitive positions of supplier 

businesses reporting under part 98. Disclosing emission 

factors could harm the competitive advantage of firms 

because the emission factors can be used to back-calculate 

the carbon share of the supplier’s products and raw 
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153

materials. Revealing carbon share information on products 

or raw materials could give competitors insights concerning 

product make-up, production processes used, the markets and 

types of customers a facility supplies, who they obtain raw 

materials from, and other process-specific information. 

Such information could allow a competitor to devise 

strategies to capture market share from specific firms, 

compete for raw material resources, and otherwise put the 

reporting suppliers at a disadvantage. See the 

“Production/Throughput Quantities and Composition” and the 

“Amount and Composition of Materials Received” categories 

for suppliers in Sections II.D.3 and II.D.9 of this 

preamble for further rationale as to why EPA has concluded 

that information that could reveal production and raw 

materials information is entitled to confidential 

treatment. 

The following is an example of how release of emission 

factors could allow calculation of carbon share for 

suppliers subject to subparts LL, MM, and NN. The 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 
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154

that many products have densities that fall within a 

limited range. Therefore, if site-specific emission 

factors were released, and density is known or can be 

inferred, competitors could closely estimate the carbon 

share of a product or feedstock. Public disclosure of 

emission factors could therefore enable competitors to 

back-calculate carbon share and gain insight into the 

composition of products and feedstocks. 

Summary. For the reasons stated above, EPA is 

proposing to determine that the data elements in this 

category are CBI under section 114(c) of the CAA. 

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 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 
Draft deliberative: Do not cite or quote 

155

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 

subpart OO data elements for quantities of materials that 

are produced on site in one production process, 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: 

Χ Annual quantity of each product (in Table MM-1) 

entering the coal-to-liquid facility for further 

processing or other uses onsite (Subpart LL). 

Χ Annual quantity of each type of biomass that is to be 

co-processed with fossil fuel-based feedstock (subpart 

LL). 

Χ Carbon share and density of feedstocks consumed 

(subpart LL). 

Χ Annual quantity of petroleum products or natural gas 

liquids (NGL) entering the refinery for further 

refining or for other uses onsite (subpart MM). 

Χ Annual quantity of each type of biomass that is to be 

co-processed with petroleum feedstocks to produce a 

petroleum product (subpart MM). 

Χ Quantity of bulk NGLs received for processing during 

the reporting year (subpart MM). 
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156

Χ Carbon share and density of feedstocks consumed 

(subpart MM). 

Χ Annual quantities of ethane, propane, normal butane, 

isobutane, and “pentanes plus” products received from 

other NGL fractionators (subpart NN). 

Χ 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 

(subpart NN). 

Χ Total mass of each reactant fed into the fluorinated 

GHG or nitrous oxide production process, by process. 

(Reactants include raw materials received)(subpart 

OO). 

Χ 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)(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: 

Χ 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 
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157

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. 

Χ Information about the quantities and composition of 

materials received could expose a firm’s competitive 

and growth strategies. For example, a record showing 

a significant increase in consumption of a particular 

material resource may indicate to competitors that a 

firm is seeking entry into a new market. 

Χ 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. 

Χ 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. 

Χ 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 
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158

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 

the Mandatory GHG Reporting Rule are also released, 

competitors could use the combination of production 

and feedstock consumption data to expose sensitive 

information such as operating efficiencies (amount of 

product produced per unit of raw material consumed) 

and allow competitors to infer production costs and 

pricing structures. 

Summary. For the reasons stated above, EPA proposes 

to determine that the data elements in this category are 

CBI under section 114(c) of the CAA. 

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 greenhouse gases (N2O and fluorinated GHGs) who 

are subject to 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 section 114(c) of the CAA. 
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159

Description of Data Elements. Data elements in this 

category, which are required only in subpart OO, include 

the substitute values (i.e., the actual numerical values 

used in the calculation), the methods used to generate the 

substitute values, and other related information, for 

estimating production/throughput and materials received 

quantities and compositions. A complete list of the data 

elements in this category is as follows: 

Χ Reason the data were missing. 

Χ Length of time the data were missing. 

Χ Method used to estimate the missing data. 

Χ 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 
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160

raw materials consumed data (e.g., the amount of a gas fed 

into the production process during a specified missing data 

time period). Accordingly, these data elements are 

themselves production data and materials received data for 

the missing data period and their disclosure could divulge 

sensitive details about operational capabilities, marketing 

strategies, market share, and product chemistries. For a 

detailed explanation, see the “Production/Throughput 

Quantities and Composition” and the “Amount and Composition 

of Materials Received” categories for suppliers in 

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

Summary. For the reasons stated above, EPA proposes 

to determine that the data elements in this category are 

CBI under section 114(c) of the CAA. 

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 section 114(c) of the CAA. 

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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161

or destruction. Examples of data elements in this category 

include the following: 

Χ 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. 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. 

Χ Subpart NN also requires reporting (if known) the EIA 

identification number of each LDC customer. 

Χ 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. 

Χ Subpart OO and proposed subpart QQ,___FR ____, date) 

requires 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 

are CBI under section 114(c) of the CAA. 

Suppliers of fuels and industrial GHGs do not release 

the identity of their customers to protect information on 

their customer base, market share, and similar data that 

could be utilized to deduce competitive strategies. The 

information is not reasonably available without the 
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162

businesses consent, and businesses take steps to protect 

this information. 

In addition, release of this information is likely to 

cause substantial harm to the competitive position of the 

supplier reporters. For example, if all suppliers of fuels 

and industrial GHGs under a particular subpart were 

required to report their associated customers and vendors, 

and the information were widely available, then competitors 

could use that information to determine the approximate 

market share of each reporter, based on the number and 

estimated size of customers. This information could be 

used to develop strategies to take customers from a 

competitor. 

Likewise, if all suppliers of industrial GHGs under a 

particular subpart were required to report to whom they 

were sending GHGs for destruction, competitors could 

possibly determine information about the manufacturing 

process of the suppliers of industrial GHGs based on the 

nature of the services provided by the facility performing 

the destruction. 

In addition, requiring suppliers of industrial GHGs to 

identify facilities that destroy GHGs could reveal 

proprietary information about the destruction facilities’ 

customer base and market share, which could be used by 
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163

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 section 114(c) of the CAA. 

12. The Process-Specific and Vendor Data Submitted in the 

Best Available Monitoring Methods (BAMM) Extension Request 

Category 

EPA proposes to determine that the data elements in 

this category are CBI under section 114(c) of the CAA 

because the release of process-specific and vendor data 

submitted with the BAMM extension request is likely to 

cause substantial harm to competitive position of suppliers 

reporting these data under part 98. 

Description of data elements. The data elements in 

this category include certain information submitted by 

reporters in petitions to extend the use of BAMM. These 

data elements are submitted once, as part of the petition, 

and are not submitted on a recurring basis in the annual 

GHG reports. The October 2009 final Mandatory GHG 

Reporting 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 
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164

approval, requests to extend the use of BAMM beyond March 

31, 2010. Similar allowances to submit BAMM requests are 

included in proposed rule amendments [add citations if 

available]. 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 the 

MRR. Provided below are some examples of the data elements 

in this Category: 

Χ Location where each monitor will be installed. 

Process diagrams may be included to show specific 

locations. 

Χ Information on alternative monitoring equipment 

suppliers and delivery dates investigated. 

Χ Supporting documentation demonstrating that it is not 

possible to isolate the equipment and install 

monitoring instruments without a process unit 

shutdown. 

Χ Information on process unit shutdowns including 

frequency and dates of previous and planned shutdowns. 

Rationale for Proposed Determination. 

EPA proposes to determine that the data elements in 

this data category are CBI under section 114(c) of the CAA. 

We find that disclosure of these process-specific and 
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165

vendor data submitted with BAMM extension requests is 

likely to cause substantial harm to the competitive 

position of businesses submitting these requests under the 

Mandatory GHG Reporting Rule. 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: 

Χ 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. 

Χ 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. 
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166

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. 

Χ 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 section 114 of the CAA. 

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 
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167

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 the Mandatory GHG 

Reporting Rule. However, the Office of Management and 

Budget (OMB) has previously approved the information 

collection requirements contained in the existing 

regulations (40 CFR Part 98) under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB control number 2060-0629. The OMB control 

numbers for EPA's regulations in 40 CFR are listed in 40 

CFR part 9. 

C. Regulatory Flexibility Act (RFA)

The RFA generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to 

notice and comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless 

the agency certifies that the rule will not have a 
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168

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 the Mandatory GHG 

Reporting Rule. 

After considering the economic impacts of today’s 

proposed amendments on small entities, I certify that this 

action will not have a significant economic impact on a 

substantial number of small entities. The small entities 

directly regulated by the Mandatory GHG Reporting Rule and 

affected by the proposed amendments to 40 CFR part 2 

include small businesses across all sectors of the economy 

encompassed by the Mandatory GHG Reporting Rule, small 

governmental jurisdictions, and small non-profits. An 
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169

analysis of impacts on small entities was conducted at 

promulgation of the Mandatory GHG Reporting Rule 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 Mandatory GHG Reporting Rule. Therefore, the proposed 

amendments do not have an impact on small entities. For 

discussion of EPA’s outreach/consultation efforts with 

small entities on the Mandatory GHG Reporting Rule, see 

Section VIII of the preamble to the final Mandatory GHG 

Reporting Rule (74 FR 56369). 

EPA continues to be interested in the potential 

impacts of the proposed rule amendments on small entities 

and welcomes comments on issues related to such impacts. 

D. Unfunded Mandates Reform Act (UMRA)

Title II of the Unfunded Mandates Reform Act of 1995 

(UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, 

unless otherwise prohibited by law, to assess the effects 

of their regulatory actions on State, local, and tribal 

governments and the private sector. Federal agencies must 

also develop a plan to provide notice to small governments 
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170

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 the Mandatory GHG Reporting Rule. Thus, the 

proposed amendments are not subject to the requirements of 

sections 202 or 205 of UMRA. 

In developing the Mandatory GHG Reporting Rule, 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 the Mandatory GHG Reporting Rule, 
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171

see Section VIII of the preamble to the final Mandatory GHG 

Reporting Rule (74 FR 56370). 

E. Executive Order 13132: Federalism

The proposed amendments to 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 Executive 

Order 13132. However, for a more detailed discussion about 

how the Mandatory GHG Reporting Rule relates to existing 

State programs, please see Section II of the preamble to 

the final Mandatory GHG Reporting Rule (74 FR 56266). 

The proposed amendments to 40 CFR part 2 are 

administrative in nature and apply to data reported under 

the Mandatory GHG Reporting Rule. The entities affected by 

the Mandatory GHG Reporting Rule are facilities that supply 

fuel or chemicals that when used emit greenhouse gases or 

facilities that directly emit greenhouses gases. The 

Mandatory GHG Reporting Rule does not apply to governmental 

entities unless the government entity owns a facility that 

directly emits greenhouse gases above threshold levels such 

as a landfill or large stationary combustion source, so 

relatively few government facilities would be affected. 
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172

The proposed amendments to 40 CFR part 2 also do not limit 

the power of States or localities to collect GHG data 

and/or regulate GHG emissions. Thus, EO 13132 does not 

apply to this rule. 

In the spirit of Executive Order 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 

the Mandatory GHG Reporting Rule, see Section VIII of the 

preamble to the final Mandatory GHG Reporting 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, Executive Order 13175 does 

not apply to the proposed amendments. For a summary of 

EPA’s consultations with Tribal governments and 

representatives in developing the Mandatory GHG Reporting 

Rule, see Section VIII.F of the preamble to the final 

Mandatory GHG Reporting Rule (74 FR 56371). 
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173

G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) 

as applying only to those regulatory actions that concern 

health or safety risks, such that the analysis required 

under section 5-501 of the EO has the potential to 

influence the regulation. This action is not subject to EO 

13045 because it does not establish an environmental 

standard intended to mitigate health or safety risks. 

H. Executive Order 13211: Actions that Significantly 

Affect Energy Supply, Distribution, or Use

This action is not a “significant energy action” as defined 

in Executive Order 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 
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174

otherwise impractical. Voluntary consensus standards are 

technical standards (e.g., materials specifications, test 

methods, sampling procedures, and business practices) that 

are developed or adopted by voluntary consensus standards 

bodies. NTTAA directs EPA to provide Congress, through 

OMB, explanations when the Agency decides not to use 

available and applicable voluntary consensus standards. 

This proposed rulemaking does not involve technical 

standards. Therefore, EPA is not considering the use of 

any voluntary consensus standards. 

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Populations

Executive Order (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. 
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175

EPA has determined that this proposed rule will not 

have disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because it does not affect the level of protection provided 

to human health or the environment. The proposed 

amendments to 40 CFR part 2 are administrative in nature 

and therefore do not affect the level of protection 

provided to human health or the environment. 

IV. Next Steps 

EPA will summarize and respond to public comments on 

this notice. EPA will issue a final notice that will 

outline which categories of data submitted under the 

Mandatory GHG Reporting Rule 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 notice 

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. 
Proposed Confidentiality Determination for Data Required 

Under the Mandatory GHG Reporting Rule 

Page 176 of 179 

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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177

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 remains 

unchanged. 

Subpart B—[Amended] 

2. Section 2.301 is amended by revising paragraphs 

(c) and (d) to read as follows: 

* * * * * 

(c) Basic rules that apply without change. Except as 

otherwise provided in paragraph (d) of this section, 

§§2.201 through 2.207, §2.209, and §§2.211 through 2.215 

apply without change to information to which this section 

applies. 

(d) Data submitted under 40 CFR part 98. 

(1) Sections 2.201 through 2.215 do not apply to data 

submitted under 40 CFR part 98 that EPA has determined, 

pursuant to section 114(c) of the Clean Air Act and 5 

U.S.C. 553(c), to be either of the following: 

(i) Emission data. 

(ii) Data not otherwise entitled to confidential 

treatment pursuant to section 114(c) of the Clean Air Act. 
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178

(2) Except as otherwise provided in paragraphs (d)(2) 

and (d)(4) of this section, §§2.201 through 2.215 do not 

apply to data submitted under 40 CFR part 98 data that EPA 

has determined, pursuant to section 114(c) of the Clean Air 

Act and 5 U.S.C. 553(c), to be entitled to confidential 

treatment. EPA shall treat that information as 

confidential in accordance with the provisions of §2.211, 

subject to paragraph (d)(4) of this section and §2.209. 

(3) Upon receiving a request under 5 U.S.C. 552 for 

data submitted under 40 CFR part 98 that EPA has 

determined, pursuant to section 114(c) of the Clean Air Act 

and 5 U.S.C. §553(c), to be entitled to confidential 

treatment, the EPA office shall furnish the requestor a 

notice that the information has been determined to be 

entitled to confidential treatment and that the request is 

therefore denied. The notice shall include or cite to the 

appropriate EPA determination. 

(4) Modification of prior confidentiality 

determination. A determination made pursuant to section 

114(c) of the Clean Air Act and 5 U.S.C. §553(c) that 

information submitted under 40 CFR part 98 is entitled to 

confidential treatment shall continue in effect unless, 

subsequent to the confidentiality determination, EPA takes 

one of the following actions: 
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179

(i) EPA determines, pursuant to section 114(c) of the 

Clean Air Act and 5 U.S.C. §553(c), that the information is 

emission data or data not otherwise entitled to 

confidential treatment under section 114(c) of the Clean 

Air Act. 

(ii) The Office of General Counsel issues a final 

determination, based on the criteria in §2.208, stating 

that the information is no longer entitled to confidential 

treatment because of change in the applicable law or newlydiscovered or changed facts. Prior to making such final 

determination, EPA shall afford the business an opportunity 

to submit comments on pertinent issues in the manner 

described by §§2.204(e) and 2.205(b). If, after 

consideration of any timely comments submitted by the 

business, the Office of General Counsel makes a revised 

final determination that the information is not entitled to 

confidential treatment under section 114(c) of the Clean 

Air Act, EPA will notify the business in accordance with 

the procedures described in §2.205(f)(2).