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 Ac t. 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made in a final notice without taking certain additional procedural steps currently required.Draft deliberative: Do not cite or quote 2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 withoutDraft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 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 orDraft deliberative: Do not cite or quote 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:Draft deliberative: Do not cite or quote 6

Table 1. Examples of Affected Entities by Category Ca t e g o r y NA I C S Ex a m p l e s o f a f f e c t e d f a c i l i t i es Fa c i l i t i e s o p e r a t i n g b o i l e r s , pr o c e s s h e a t e r s , i n c i n e r a t o r s , tu r b i n e s , a n d i n t e r n a l c o m b u s t i o n en g i n e s : 21 1 Ex t r a c t o r s o f c r u d e p e t r o l e u m a n d

na t u r a l g a s . Ge n e r a l St a t i o n a r y F u e l Co m b u s t i o n So u r c e s

32 1 Ma n u f a c t u r e r s o f l u m b e r a n d w o o d pr o d u c t s . 32 2 Pu l p a n d p a p e r m i l l s . 32 5 Ch e m i c a l m a n u f a c t u r e r s . 32 4 Pe t r o l e u m r e f i n e r i e s , a n d

ma n u f a c t u r e r s o f c o a l p r o d u c t s. 31 6 , 3 2 6 , 33 9 Ma n u f a c t u r e r s o f r u b b e r a n d

mi s c e l l a n e o u s p l a s t i c p r o d u c t s. 33 1 St e e l w o r k s , b l a s t f u r n a c e s . 33 2 El e c t r o p l a t i n g , p l a t i n g , p o l i s h i n g ,

an o d i z i n g , a n d c o l o r i n g . 33 6 Ma n u f a c t u r e r s o f m o t o r v e h i c l e

pa r t s a n d a c c e s s o r i e s . 22 1 El e c t r i c , g a s , a n d s a n i t a r y

se r v i c e s . 62 2 He a l t h s e r v i c e s . 611 Ed u c a t i o n a l s e r v i c e s. El e c t r i c i t y Ge n e r a t i o n 22 1 1 1 2 Fo s s i l

- f u e l f i r e d e l e c t r i c ge n e r a t i n g u n i t s , i n c l u d i n g u n i t s ow n e d b y F e d e r a l a n d m u n i c i p a l go v e r n m e n t s a n d u n i t s l o c a t e d i n In d i a n C o u n t r y . Ad i p i c A c i d Pr o d u c t i o n 32 5 1 9 9 Ad i p i c a c i d m a n u f a c t u r i n g fa c i l i t i e s . Al u m i n u m Pr o d u c t i o n 33 1 3 1 2 Pr i m a r y A l u m i n u m p r o d u c t i o n fa c i l i t i e s . Am m o n i a Ma n u f a c t u r i n g 32 5 3 1 1 An h y d r o u s a n d a q u e o u s a m m o n i a ma n u f a c t u r i n g f a c i l i t i e s . Ce m e n t Pr o d u c t i o n 32 7 3 1 0 Po r t l a n d C e m e n t m a n u f a c t u r i n g pl a n t s . 33 4 1 1 1 Mi c r o c o m p u t e r s m a n u f a c t u r i n g

fa c i l i t i e s . 33 4 4 1 3 Se m i c o n d u c t o r , p h o t o v o l t a i c ( s o l i dst a t e ) d e v i c e m a n u f a c t u r i n g fa c i l i t i e s . 33 4 4 1 9 LC D u n i t s c r e e n s m a n u f a c t u r i n g

fa c i l i t i e s . El e c t r o n i c s Ma n u f a c t u r i n g

ME M S m a n u f a c t u r i n g f a c i l i t i e s . Et h a n o l Pr o d u c t i o n 32 5 1 9 3 Et h y l a l c o h o l m a n u f a c t u r i n g fa c i l i t i e s . Fe r r o a l l o y Pr o d u c t i o n 33 1 1 1 2 Fe r r o a l l o y s m a n u f a c t u r i n g fa c i l i t i e s .Draft deliberative: Do not cite or quote 7

Ca t e g o r y NA I C S Ex a m p l e s o f a f f e c t e d f a c i l i t i es Fl u o r i n a t e d G H G Pr o d u c t i o n 32 5 1 2 0 In d u s t r i a l g a s e s m a n u f a c t u r i n g fa c i l i t i e s . Fo o d P r o c e s s i n g 31 1 6 1 1 Me a t p r o c e s s i n g f a c i l i t i e s. 31 1 4 1 1 Fr o z e n f r u i t , j u i c e , a n d v e g e t a b l e

ma n u f a c t u r i n g f a c i l i t i e s . 31 1 4 2 1 Fr u i t a n d v e g e t a b l e c a n n i n g

fa c i l i t i e s . Gl a s s P r o d u c t i on 32 7 2 1 1 Fl a t g l a s s m a n u f a c t u r i n g fa c i l i t i e s . 32 7 2 1 3 Gl a s s c o n t a i n e r m a n u f a c t u r i n g

fa c i l i t i e s . 32 7 2 1 2 Ot h e r p r e s s e d a n d b l o w n g l a s s a n d

gl a s s w a r e m a n u f a c t u r i n g f a c i l i t i e s. HC F C

- 2 2 Pr o d u c t i o n a n d HF C

- 2 3 De s t r u c t i o n 32 5 1 2 0 Ch l o r o d i f l u o r o m e t h a n e m a n u f a c t u r i n g fa c i l i t i e s .

Hy d r o g e n Pr o d u c t i o n 32 5 1 2 0 Hy d r o g e n m a n u f a c t u r i n g f a c i l i t i e s . Ir o n a n d S t e e l Pr o d u c t i o n 33 1 1 1 1 In t e g r a t e d i r o n a n d s t e e l m i l l s , st e e l c o m

p a n i e s , s i n t e r p l a n t s , bl a s t f u r n a c e s , b a s i c o x y g e n pr o c e s s f u r n a c e s h o p s . Le a d P r o d u c t i o n 33 1 4 1 9 Pr i m a r y l e a d s m e l t i n g a n d r e f i n i n g fa c i l i t i e s . 33 1 4 9 2 Se c o n d a r y l e a d s m e l t i n g a n d

re f i n i n g f a c i l i t i e s . Li m e P r o d u c t i o n 32 7 4 1 0 Ca l c i u m o x i d e , c a l c i u m h y d r o x i d e , do l o m i t i c h y d r a t e s m a n u f a c t u r i n g fa c i l i t i e s . Ma g n e s i u m Pr o d u c t i o n 33 1 4 1 9 Pr i m a r y r e f i n e r s o f n o n f e r r o u s me t a l s b y e l e c t r o l y t i c m e t h o d s. 33 1 4 9 2 Se c o n d a r y m a g n e s i u m p r o c e s s i n g

pl a n t s . 56 2 2 1 2 So l i d w a s t e l a n d f i l l s . Mu n i c i p a l S o l i d Wa s t e L a n d f i l l s 22 1 3 2 0 Se w a g e t r e a t m e n t f a c i l i t i e s . Ni t r i c A c i d Pr o d u c t i o n 32 5 3 1 1 Ni t r i c a c i d m a n u f a c t u r i n g fa c i l i t i e s . Pe t r o l e u m a n d Na t u r a l G a s Sy s t e m s 48 6 2 1 0 Pi p e l i n e t r a n s p o r t a t i o n o f n a t u r a l ga s . 22 1 2 1 0 Na t u r a l g a s d i s t r i b u t i o n

fa c i l i t i e s . 21 1 Ex t r a c t o r s o f c r u d e p e t r o l e u m a n d

na t u r a l g a s . 21 1 1 1 2 Na t u r a l g a s l i q u i d e x t r a c t i o n

fa c i l i t i e s . Pe t r o c h e m i c a l Pr o d u c t i o n 32 5 1 1 Et h y l e n e d i c h l o r i d e m a n u f a c t u r i n g fa c i l i t i e s .Draft deliberative: Do not cite or quote 8

Ca t e g o r y NA I C S Ex a m p l e s o f a f f e c t e d f a c i l i t i es 32 5 1 9 9 Ac r y l o n i t r i l e , e t h y l e n e o x i d e ,

me t h a n o l m a n u f a c t u r i n g f a c i l i t i e s . 32 5 1 1 0 Et h y l e n e m a n u f a c t u r i n g f a c i l i t i e s . 32 5 1 8 2 Ca r b o n b l a c k m a n u f a c t u r i n g

fa c i l i t i e s . Pe t r o l e u m Re f i n e r i e s 32 4 1 1 0 Pe t r o l e u m r e f i n e r i e s . Ph o s p h o r i c A c i d Pr o d u c t i o n 32 5 3 1 2 Ph o s p h o r i c a c i d m a n u f a c t u r i n g fa c i l i t i e s . 32 2 1 1 0 Pu l p m i l l s . Pu l p a n d P a p e r Ma n u f a c t u r i n g 32 2 1 2 1 Pa p e r m i l l s . 32 2 1 3 0 Pa p e r b o a r d m i l l s . Si l i c o n C a r b i d e Pr o d u c t i o n 32 7 9 1 0 Si l i c o n c a r b i d e a b r a s i v e s ma n u f a c t u r i n g f a c i l i t i e s . 32 5 1 8 1 Al k a l i e s a n d c h l o r i n e m a n u f a c t u r i n g

fa c i l i t i e s . So d a A s h Ma n u f a c t u r i n g 21 2 3 9 1 So d a a s h , n a t u r a l , m i n i n g a n d / o r be n e f i c i a t i o n . Su l f u r He x a f l u o r i d e (SF 6 ) f r o m El e c t r i c a l Eq u i p m e n t 22 1 1 2 1 El e c t r i c b u l k p o w e r t r a n s m i s s i o n an d c o n t r o l f a c i l i t i e s .

Ti t a n i u m D i o x i d e Pr o d u c t i o n 32 5 1 8 8 Ti t a n i u m d i o x i d e m a n u f a c t u r i n g fa c i l i t i e s . Un d e r g r o u n d C o a l Mi n e s 21 2 1 1 3 Un d e r g r o u n d a n t h r a c i t e c o a l m i n i n g op e r a t i o n s . 21 2 1 1 2 Un d e r g r o u n d b i t u m i n o u s c o a l m i n i n g

op e r a t i o n s . Zi n c P r o d u c t i o n 33 1 4 1 9 Pr i m a r y z i n c r e f i n i n g f a c i l i t i e s. 33 1 4 9 2 Zi n c d u s t r e c l a i m i n g f a c i l i t i e s ,

re c o v e r i n g f r o m s c r a p a n d / o r al l o y i n g p u r c h a s e d m e t a l s . 56 2 2 1 2 So l i d w a s t e l a n d f i l l s . In d u s t r i a l La n d f i l l s 22 1 3 2 0 Se w a g e t r e a t m e n t f a c i l i t i e s . 32 2 1 1 0 Pu l p m i l l s . 32 2 1 2 1 Pa p e r m i l l s . 32 2 1 2 2 Ne w s p r i n t m i l l s . 32 2 1 3 0 Pa p e r b o a r d m i l l s . 31 1 6 1 1 Me a t p r o c e s s i n g f a c i l i t i e s. 31 1 4 1 1 Fr o z e n f r u i t , j u i c e , a n d v e g e t a b l e

ma n u f a c t u r i n g f a c i l i t i e s . 31 1 4 2 1 Fr u i t a n d v e g e t a b l e c a n n i n g

fa c i l i t i e s . 32 2 1 1 0 Pu l p m i l l s . Wa s t e w a t e r Tr e a t m e n t 32 2 1 2 1 Pa p e r m i l l s . 32 2 1 2 2 Ne w s p r i n t m i l l s . 32 2 1 3 0 Pa p e r b o a r d m i l l s .Draft deliberative: Do not cite or quote 9

Ca t e g o r y NA I C S Ex a m p l e s o f a f f e c t e d f a c i l i t i es 31 1 6 1 1 Me a t p r o c e s s i n g f a c i l i t i e s. 31 1 4 1 1 Fr o z e n f r u i t , j u i c e , a n d v e g e t a b l e

ma n u f a c t u r i n g f a c i l i t i e s . 31 1 4 2 1 Fr u i t a n d v e g e t a b l e c a n n i n g

fa c i l i t i e s . 32 5 1 9 3 Et h a n o l m a n u f a c t u r i n g f a c i l i t i e s. Su p p l i e r s o f Co a l B a s e d Li q u i d s F u e l s 21 1 1 1 1 Co a l l i q u e f a c t i o n a t m i n e s i t e s .

Su p p l i e r s o f Pe t r o l e u m Pr o d u c t s 32 4 1 1 0 Pe t r o l e u m r e f i n e r i e s .

22 1 2 1 0 Na t u r a l g a s d i s t r i b u t i o n

fa c i l i t i e s . Su p p l i e r s o f Na t u r a l G a s a n d NG L s 21 1 1 1 2 Na t u r a l g a s l i q u i d e x t r a c t i o n fa c i l i t i e s . Su p p l i e r s o f In d u s t r i a l G H G s 32 5 1 2 0 In d u s t r i a l g a s m a n u f a c t u r i n g fa c i l i t i e s . Su p p l i e r s o f Ca r b o n D i o x i d e ( CO 2 ) 32 5 1 2 0 In d u s t r i a l g a s m a n u f a c t u r i n g fa c i l i t i e s . CO 2 E R P r o j e c t s 21 1 Oi l a n d G a s E x t r a c t i o n P r o j e c t s us i n g CO 2 E R GS S i t e s N/ A CO 2 g e o l o g i c s e q u e s t r a t i o n p r o j e c ts 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 theDraft deliberative: Do not cite or quote 10

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 RationaleDraft deliberative: Do not cite or quote 11

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 AddressEnvironmental Justice in Minority Populations and LowIncome Populations IV. Next Steps

I. Executive Summary, Background, and General Rationale A. Executive SummaryDraft deliberative: Do not cite or quote 12

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 documentationDraft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 14

Table 2. Summary of Proposed Determinations for Direct Emitter Data Categories Proposed Confidentiality Determination for Data Elements in

Each Category

Data Category Emission Data 2 Data That

Are Not Emission Data and Not CBI Data That

Are Not Emission data But Are CBI 3 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”).Draft deliberative: Do not cite or quote 15

Proposed Confidentiality Determination for Data Elements in

Each Category

Data Category Emission Data 2 Data That

Are Not Emission Data and Not CBI Data That

Are Not Emission data But Are CBI 3 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 Data 4 Data That Are

Not Emission Data and Not CBI Data That Are

not Emission Data But Are CBI 5 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.Draft deliberative: Do not cite or quote 16

Proposed Confidentiality Determinations for Data Elements in Each Category

Data Category Emission Data 4 Data That Are

Not Emission Data and Not CBI Data That Are

not Emission Data But Are CBI 5 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.Draft deliberative: Do not cite or quote 17

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 engineDraft deliberative: Do not cite or quote 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 Management 9 ;

• 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 (SF 6 ) 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.Draft deliberative: Do not cite or quote 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 2010 10 :

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 Landfills 11 ; 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 FRDraft 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 alreadytake 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 ofDraft 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 ConfidentialityDraft 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 ofDraft 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 identifierDraft 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 otherDraft 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 speakDraft 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 theDraft 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 ona 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 areDraft 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 dataDraft 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 beDraft 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 beDraft 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 theDraft 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 CO 2 emissions, as well as the data used to identify emission units and calculate the CO 2 emissions. For the Acid Rain program, the CO 2 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 CO 2 emissions by facilities with low mass emissions). Data submitted to the Acid Rain program include facility identification information, CO 2 mass emission data,

data elements used to calculate annual CO 2 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 CO 2 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 RainDraft 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

RuleDraft 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 beDraft 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 AcidDraft 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 materialDraft 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 elementsDraft 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 isDraft 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 aDraft 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 whetherDraft 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 ReportingDraft 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 regardingDraft 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’sfinal 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 proposedDraft 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 thatDraft 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 CO 2 ) that are related to emissions to the atmosphere from reporting facilities (i.e., emissions from surface equipment and from the leakage of CO 2 from geologic sequestration 14 ). All remaining data elements for Subpart RR are covered in

14 Leakage is defined in proposed subpart RR as the movement of CO 2 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 documentation 15 ) 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 beDraft deliberative: Do not cite or quote 58

reported by all facilities as specified in subpart A. Unit-specific identifying information is reported ifrequired by an applicable source category subpart. Unitspecific identifying information is required in thosesubparts 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, glassDraft 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) theDraft 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 CO 2 e 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 whichDraft 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 CO 2 , CH 4 , and N 2 O emissions from each stationary combustion unit (subpart C). Χ Process N 2 O emissions from adipic acid production subpart E). Χ Process CO 2 and N 2 O emissions from each electric arc furnace at a ferroalloy production facility (subpart K). Χ Process CO 2 emissions from each glass furnace and all furnaces combined at a glass manufacturing facility (subpart N). Χ Process CO 2 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, petroleumDraft 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 CO 2 e emissions (excluding biogenic CO 2 ) aggregated for all GHG from all applicable source categories (i.e., one value for the whole facility). Χ Annual emissions of biogenic CO 2 aggregated for all applicable source categories (i.e., one value for the whole facility). Χ CO 2 , CH 4 , and N 2 O coke burn-off emissions from each catalytic cracking unit, fluid coking unit, and catalytic reforming unit. Χ CO 2 emissions from sour gas sent off site for sulfur recovery operations. Χ CO 2 process emissions from each on-site sulfur recovery plant. Χ CO 2 , CH 4 , and N 2 O emissions from each coke calcining unit. Χ CO 2 and CH 4 emissions from asphalt blowing operations. Χ CH 4 emissions from equipment leaks, storage tanks, loading operations, delayed coking units, and uncontrolled blowdown systems. Χ CO 2 , CH 4 , and N 2 O emissions from each process vent not specifically covered above. Χ CO 2 and CH 4 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 inDraft 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 CO 2 e, 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

CO 2 e. 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 CO 2 , 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., CO 2 , N 2 O, SF 6 ) 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 rawDraft 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 toDraft 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 CO 2 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 CO 2 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 toDraft 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 CO 2 emissions from a particular process, then emissions are directly measured, and the facility would have no reported data elements that are inputs to CO 2 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 dataDraft 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 CO 2 emissions from stationary combustion sources will use calculation procedures to determine CH 4 and N 2 O 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 CH 4 and N 2 O emission calculations and would therefore be released, regardless of the fact that CEMS are used to determine CO 2 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

CH 4 and N 2 O 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 CO 2 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 GHGDraft 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 CO 2 emissions. The lowest tier (Tier 1) uses default heating values and default CO 2 emission factors listed in the Mandatory GHG Reporting Rule (by fuel) to

calculate CO 2 emissions. The highest tier (Tier 4) uses

CEMS to measure CO 2 emissions directly. Tiers 2 and 3 useDraft 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

CO 2 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 CO 2 emissions from each stationary combustion unit under subpart C. Χ Criteria needed to decide which tier is allowed to be used to determine CO 2 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 thecarbon mass balance method or whether the sitespecific emission factor method was used to determine CO 2 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 CH 4 and N 2 O emissions (e.g., subpart Y Petroleum Refineries). Χ Whether CO 2 emissions were calculated using the tronainput 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 CO 2 leakage to the surface, methods assessing the risk of leakage of CO 2 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 CalculationDraft deliberative: Do not cite or quote 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 informationDraft 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 dataDraft 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 CO 2 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 CO 2 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 usedDraft 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 theirDraft 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 orDraft 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 N 2 0 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 arealready 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 isDraft 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 thatDraft 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 98 20 . 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 CH 4 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 operatingDraft 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 informationDraft 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 directDraft 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 CH 4 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 compositionDraft 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 andDraft 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. ProvidedDraft 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 distortionsDraft 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 thatDraft 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 theseDraft 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 aDraft 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 spareDraft 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 allowDraft 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 orDraft 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 forDraft 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 CO 2 ) that are related to the injection and sequestration of CO 2 . 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 CO 2 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 AnalysisDraft 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 CategoryDraft 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 CO 2 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

CO 2 data reported under proposed subpart RR (Injection and Sequestration of CO 2 )(__FR___, date), including the quantities of CO 2 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 CO 2 e (metric tons) aggregated for all GHGs from all applicable supply categories for the calendar year. This is the CO 2 e 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 CO 2 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 CO 2 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 CO 2 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 N 2 O 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 CO 2 imported, exported, or supplied by a producer (subpart PP). Χ Mass of CO 2 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 GreenhouseDraft 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 Release 21Total facilitylevel CO 2 e from subparts LL-PP 22 ; Facility-level CO 2 from each subpart 23 No Suppliers of Coal-Based Liquid Fuels and Petroleum Products (subparts LL and MM): Producers Product-specific

CO 2 Yes Release national aggregation of CO 2 by product 24 (e.g., national CO 2 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 CO 2 e 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 CO 2 e from all supplier source categories at the facility. For example, if a refinery supplies petrochemical products (subpart MM) and is also a CO 2 supplier (subpart PP) the facility-level CO 2 e would represent the CO 2 e for both activities combined. 23 This data element, reported under subpart A, represents an aggregation of CO 2 (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 Release 21 Products (subparts LL and MM): Importers CO 2 from each

subpart 23 ; Product-specific CO 2 Total exporter level CO 2 e from subparts LL-PP; Exporter level CO 2 from each subpart 23 No Suppliers of Coal-Based Liquids and Petroleum Products (subparts LL and MM): Exporters Product-specific

CO 2 Yes Release national aggregation of CO 2 by product (e.g., national CO 2 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

CO 2 e from subparts LL through PP; LDC-level CO 2 from subpart NN 23 ; Productspecific CO 2 No

Total Facilitylevel CO 2 e from subparts LL through PP; Facility-level CO 2 from subpart NN 23

. No Suppliers of Natural Gas and NGls (subpart NN): Fractionators

Product-specific

CO 2 Yes Release national aggregation of CO 2 by product (e.g., national CO 2 from propane aggregated for all facilities that supplyDraft deliberative: Do not cite or quote 115

Source Category (Subpart) Data Elements Are these data CBI? If CBI, Intended

Aggregated Level of Release 21 propane)Total facilitylevel CO 2 e from subparts LL through PP No 25 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 N 2 O quantity from all facilities producing N 2 O) Total importer/exporter level CO 2 e from subparts LL through PP No Suppliers of 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 N 2 O quantity from all facilities importing our exporting N 2 O) Suppliers of CO 2 (subpart PP): Annual mass or

volume of CO 2 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 Release 21 Producers Total facilitylevel CO 2 e from subparts LL through PP; No

Suppliers of CO 2 (subpart PP): Importers and Exporters Total

importer/exporter level CO 2 e from subparts LL through PP; Facility-level CO 2 from subpart PP No

Annual mass or volume of CO 2 injected measured by each flow meter No

Annual mass or volume of CO 2 transferred onsite or produced measured by flow meter Yes Aggregated data released at the facility-level Injectio n and Sequestration of CO 2 (proposed subpart RR, __FR__, date)

Facility-level

data on CO 2 received, produced, and injected No

Importers and Exporters of Fluorinated Greenhouse Gases Contained in Pre-charged Equipment or Closed-cell Foams Total

importer/e xporter level CO 2 e from subparts LL through PP NoDraft deliberative: Do not cite or quote 117

Source Category (Subpart) Data Elements Are these data CBI? If CBI, Intended

Aggregated Level of Release 21 (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 CO 2 equantities, and the facility-level or importer/exporterlevel CO 2 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 CO 2 e and CO 2 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

CO 2 ), 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 CO 2 injection and sequestration facilities, facility and flow meter-specific data on the amount of CO 2 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 productionDraft 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 CO 2 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 CO 2 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 CO 2 quantity by product for suppliers of CO 2 to be CBI because much of this data is already available in the public domain. For this category, the CO 2 quantity reported by each supplier is the same as their CO 2 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 CO 2 supplier product quantities is not likely to cause competitive harm and is not entitled to confidential treatment.

4. EPA does not consider facility-level CO 2 injection data by CO 2 injection and geologic sequestration facilities to be CBI because much of this data is already available in the public domain. For this category, the CO 2 quantity injected by each facility is the same as their CO 2 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 CO 2 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 CBIDraft 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 CO 2 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 CO 2 e 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 CO 2 are not CBI under section 114(c). EPA proposes to determine that the CO 2 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 CO 2 quantities reported by importers of petroleum products and coal-based liquids, CO 2 quantities reported by LDCs, and CO 2 quantities reported by suppliers CO 2 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 CO 2, (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 requiredDraft 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 CO 2 must report:

Χ Annual mass of CO 2 imported or exported. Χ Aggregated annual quantity of CO 2 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 CBI 27 (Y/N)? If CBI, Proposed

Aggregated Level of Release 28Suppliers of CoalBased Liquid Fuels and Petroleum Products (Subparts LL and MM): Producers Facility level, by product Yes Release national aggregation, by product 29,30

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 CBI 27 (Y/N)? If CBI, Proposed

Aggregated Level of Release 28 GHG Producers Facility level throughput 32 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 CO 2 production No

CO 2 mass or volume measured by flow meter No Suppliers of CO 2 (Subpart PP): Producers

Facility level annually aggregated production information, by end use application No

Suppliers of CO 2 (PP): Importers and Exporters Importer and Exporter level total CO 2 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 CBI 27 (Y/N)? If CBI, Proposed

Aggregated Level of Release 28 CO 2 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 GasesContained 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 nationalaggregation, by precharged equipment, closed- cell foam, and appliance containing closed-cell foam

Annual mass or volume of CO 2 injected measured by each flow meter No Injection and Geological Sequestration of CO 2 (Proposed Subpart RR, __FR___, date) Annual mass or volume of CO 2 transferred onsite and produced measured by each flow Yes Aggregated data released at the facility-levelDraft deliberative: Do not cite or quote 129

Source Category Subpart Level

Reported Are these

Data CBI 27 (Y/N)? If CBI, Proposed

Aggregated Level of Release 28 meterFacilitylevel data on CO 2 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 greenhousegases 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 beDraft 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 datarelated 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 couldDraft 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 CO 2 production/throughput data reported by CO 2 producers and at the importer or exporter level by importers, and exporters of CO 2 (subpart PP). Χ CO 2 injection data reported by CO 2 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 importerDraft 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 importerlevel, 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 notDraft 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 publicutility 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 CO 2 and exporter/importer level data from importers and exporters

of CO 2 . Only three states have facilities producing CO 2 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 fromstate oil and gas commissions. In addition, facilityspecific information is published in other federal or state publications such as the Inventory of U.S. Greenhouse GasDraft 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

CO 2 produced and the percentage of total production used for enhanced oil recovery (EOR) and non-EOR applications for two facilities currently producing CO 2 from naturallyoccurring CO 2 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 CO 2 produced annually by the two facilities mentioned above is the same data, when aggregated at the facility and annual level, reported by suppliers of CO 2 under subpart PP. Since CO 2 production data aggregated at the facility-level is already publicly available for producers of CO 2 , 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 CO 2 to report the amount of CO 2 transferred to each end-use application is similar to the percentage of total CO 2 production used for EOR and non-EOR applications reported in the inventory. Additionally, the estimated CO 2 extraction (i.e., production) data from power and industrial facilities engaged in RD&D efforts are routinelyDraft 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) CO 2 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 CO 2 captured (i.e., produced) by three commercial U.S. facilities and the end-use application of the captured CO 2 is included in the IEA project descriptions. The GHG Reporting Rule requires reporting of the annual, rather than daily, CO 2 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 CO 2 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 CO 2 suppliers.Draft deliberative: Do not cite or quote 137

For proposed subpart RR (__FR__, date), CO 2 injection data is general in nature and not likely to be correlated with any confidential commercial operations. Detailed data

on CO 2 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 CO 2 injection facilities in their jurisdictions. Such publication suggests that CO 2 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 CO 2 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 anDraft deliberative: Do not cite or quote 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 notCBI because they are already publicly available: facilitylevel and importer/exporter-level data reported by suppliers of CO 2, 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 ofDraft deliberative: Do not cite or quote 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 informationDraft deliberative: Do not cite or quote 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 underDraft deliberative: Do not cite or quote 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 CO 2 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.Draft deliberative: Do not cite or quote 142

Χ Source of the CO 2 received(e.g. CO 2 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 N 2 O 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, asDraft deliberative: Do not cite or quote 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 CO 2 stream that is derived from biomass (subpart PP), and the source of CO 2 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 CO 2 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 CO 2 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 CO 2 received are not CBI.Draft deliberative: Do not cite or quote 145

For the reporting of percent of captured CO 2 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 CO 2 production is already publicly available. Biomass-based CO 2 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 CO 2 that is biomass-based are not CBI under section 114(c). 6. The Calculation, Test, and Calibration Methods for Suppliers CategoryDraft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 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 CO 2 . Χ Measure the concentration of CO 2 in a stream. Χ Measure the density of a CO 2 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 substitutesDraft deliberative: Do not cite or quote 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 CO 2 e emissions that would result from the complete combustion or oxidation of the products they supply. These suppliersDraft deliberative: Do not cite or quote 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 CO 2 emission factors for each feedstock received and product produced, imported, or exported (subparts LL and MM). Χ Calculated CO 2 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 CO 2 ) 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 CO 2 and

CO 2 e 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 rawDraft deliberative: Do not cite or quote 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 givenDraft deliberative: Do not cite or quote 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 industrialDraft 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).Draft deliberative: Do not cite or quote 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 N 2 O and each fluorinated GHG fed into a transformation process transformed at the facility, by process. This includes quantities of N 2 O 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 materialDraft deliberative: Do not cite or quote 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 quantityDraft deliberative: Do not cite or quote 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 (N 2 O 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.Draft deliberative: Do not cite or quote 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) orDraft deliberative: Do not cite or quote 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 transformationDraft deliberative: Do not cite or quote 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 N 2 O 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 theDraft deliberative: Do not cite or quote 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 byDraft deliberative: Do not cite or quote 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 EPADraft deliberative: Do not cite or quote 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 andDraft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 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 novelDraft deliberative: Do not cite or quote 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 aDraft deliberative: Do not cite or quote 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. AnDraft deliberative: Do not cite or quote 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 governmentsDraft deliberative: Do not cite or quote 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,Draft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 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).Draft deliberative: Do not cite or quote 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 orDraft deliberative: Do not cite or quote 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 AddressEnvironmental 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.Draft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 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.Draft deliberative: Do not cite or quote 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:Draft deliberative: Do not cite or quote 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 confidentialtreatment 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).