30782 Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 2 

[EPA–HQ–OAR–2009–0924; FRL–9311–2] 

RIN 2060–AQ04 

Confidentiality Determinations for Data 

Required Under the Mandatory 

Greenhouse Gas Reporting Rule and 

Amendments to Special Rules 

Governing Certain Information 

Obtained Under the Clean Air Act 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This action finalizes the 

confidentiality determinations for 

certain data elements required to be 

reported under the Mandatory 

Greenhouse Gas Reporting Rule. This 

action also finalizes amendments to the 

special rules governing certain 

information obtained under the Clean 

Air Act, which authorizes EPA to 

release or withhold as confidential 

reported data under the Mandatory 

Greenhouse Gas Reporting Rule 

according to the final determinations for 

such data without taking further 

procedural steps. This action does not 

include final confidentiality 

determinations for data elements that 

are in the ‘‘Inputs to Emission 

Equations’’ category. 

DATES: This action is effective on July 

25, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2009–0924. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other materials, such as 

copyrighted materials, are not placed on 

the Internet and are publicly available 

only in hard copy form. Publicly 

available docket materials are available 

either electronically through http:// 

www.regulations.gov or in hard copy at 

the Air Docket, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution 

Avenue, NW., Washington, DC 20004. 

This Docket Facility is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the Air Docket 

is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Carole Cook, Climate Change Division, 

Office of Atmospheric Programs (MC– 

6207J), Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460; telephone 

number: (202) 343–9263; fax number: 

(202) 343–2342. For technical 

information and implementation 

materials, please go to the Web site 

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

emissions/ghgrulemaking.html. To 

submit a question, select Rule Help 

Center, then select Contact Us. 

Regulated Entities. The 

confidentiality determinations and 

amendment to 40 CFR 2.301 affect 

entities that must submit annual 

greenhouse gas (GHG) reports under 40 

CFR part 98. The Administrator 

determined that this action is subject to 

the provisions of Clean Air Act (CAA) 

section 307(d). See CAA section 

307(d)(1)(v) (the provisions of CAA 

section 307(d) apply to ‘‘such other 

actions as the Administrator may 

determine’’). Part 98 and this action 

affects fuel and chemical suppliers and 

direct emitters of greenhouse gases. 

Affected categories and entities include 

those listed in Table 1 of this preamble: 

TABLE 1. EXAMPLES OF AFFECTED ENTITIES BY CATEGORY

Category NAICS Examples of affected facilities 

General Stationary Fuel Combustion Sources ................................ Facilities operating boilers, process heaters, incinerators, turbines, and internal combustion engines. 

321 Manufacturers of lumber and wood products. 

322 Pulp and paper mills. 

325 Chemical manufacturers. 

324 Petroleum refineries and manufacturers of coal products. 

316, 326, 339 Manufacturers of rubber and miscellaneous plastic products. 

331 Steel works and blast furnaces. 

32 Electroplating, plating, polishing, anodizing, and coloring. 

336 Manufacturers of motor vehicle parts and accessories. 

221 Electric, gas, and sanitary services. 

622 Health services. 

611 Educational services. 

325193 Ethyl alcohol manufacturing facilities. 

311611 Meat processing facilities. 

311411 Frozen fruit, juice, and vegetable manufacturing facilities. 

311421 Fruit and vegetable canning facilities. 

Electricity Generation ..................................... 221112 Fossil-fuel fired electric generating units, including units owned by Federal 

and municipal governments and units located in Indian Country. 

Adipic Acid Production ................................... 325199 Adipic acid manufacturing facilities. 

Aluminum Production ..................................... 331312 Primary Aluminum production facilities. 

Ammonia Manufacturing ................................ 325311 Anhydrous and aqueous ammonia manufacturing facilities. 

Cement Production ......................................... 327310 Portland Cement manufacturing plants. 

Ferroalloy Production ..................................... 331112 Ferroalloys manufacturing facilities. 

Glass Production ............................................ 327211 Flat glass manufacturing facilities. 

327213 Glass container manufacturing facilities. 

327212 Other pressed and blown glass and glassware manufacturing facilities. 

HCFC–22 Production and HFC–23 Destruction.325120 Chlorodifluoromethane manufacturing facilities. 

Hydrogen Production ...................................... 325120 Hydrogen manufacturing facilities. 

Iron and Steel Production .............................. 331111 Integrated iron and steel mills, steel companies, sinter plants, blast furnaces, basic oxygen process furnace shops. 

Lead Production ............................................. 331419 Primary lead smelting and refining facilities. 

331492 Secondary lead smelting and refining facilities. 

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Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 30783 

TABLE 1. EXAMPLES OF AFFECTED ENTITIES BY CATEGORY—Continued 

Category NAICS Examples of affected facilities 

Lime Production ............................................. 327410 Calcium oxide, calcium hydroxide, and dolomitic hydrates manufacturing 

facilities. 

Magnesium Production ................................... 331419 Primary refiners of nonferrous metals by electrolytic methods. 

331492 Secondary magnesium processing plants. 

Municipal Solid Waste Landfills ..................... 562212 Solid waste landfills. 

221320 Sewage treatment facilities. 

Nitric Acid Production ..................................... 325311 Nitric acid manufacturing facilities. 

Petrochemical Production .............................. 32511 Ethylene dichloride manufacturing facilities. 

325199 Acrylonitrile, ethylene oxide, and methanol manufacturing facilities. 

325110 Ethylene manufacturing facilities. 

325182 Carbon black manufacturing facilities. 

Petroleum Refineries ...................................... 324110 Petroleum refineries. 

Phosphoric Acid Production ........................... 325312 Phosphoric acid manufacturing facilities. 

Pulp and Paper Manufacturing ...................... 322110 Pulp mills. 

322121 Paper mills. 

322130 Paperboard mills. 

Silicon Carbide Production ............................. 327910 Silicon carbide abrasives manufacturing facilities. 

Soda Ash Manufacturing ................................ 325181 Alkalies and chlorine manufacturing facilities. 

212391 Soda ash, natural, mining, and/or beneficiation. 

Titanium Dioxide Production .......................... 325188 Titanium dioxide manufacturing facilities. 

Underground Coal Mines ............................... 212113 Underground anthracite coal mining operations. 

212112 Underground bituminous coal mining operations. 

Zinc Production .............................................. 331419 Primary zinc refining facilities. 

331492 Zinc dust reclaiming facilities, recovering from scrap and/or alloying purchased metals. 

Industrial Waste Landfills ............................... 562212 Solid waste landfills. 

221320 Sewage treatment facilities. 

322110 Pulp mills. 

322121 Paper mills. 

322122 Newsprint mills. 

322130 Paperboard mills. 

311611 Meat processing facilities. 

311411 Frozen fruit, juice, and vegetable manufacturing facilities. 

311421 Fruit and vegetable canning facilities. 

Industrial Wastewater Treatment ................... 322110 Pulp mills. 

322121 Paper mills. 

322122 Newsprint mills. 

322130 Paperboard mills. 

311611 Meat processing facilities. 

311411 Frozen fruit, juice, and vegetable manufacturing facilities. 

311421 Fruit and vegetable canning facilities. 

325193 Ethanol manufacturing facilities. 

Suppliers of Coal Based Liquids Fuels .......... 211111 Coal liquefaction at mine sites. 

Suppliers of Petroleum Products ................... 324110 Petroleum refineries. 

Suppliers of Natural Gas and NGLs .............. 221210 Natural gas distribution facilities. 

211112 Natural gas liquid extraction facilities. 

Suppliers of Industrial GHGs ......................... 325120 Industrial gas manufacturing facilities. 

Suppliers of Carbon Dioxide (CO2) ................ 325120 Industrial gas manufacturing facilities. 

Table 1 of this preamble lists the 

types of entities that could be required 

to report data under Part 98. This list is 

not intended to be exhaustive, but rather 

to provide a guide for readers regarding 

facilities and suppliers likely to be 

affected by this action. Other types of 

facilities and suppliers not listed in the 

table may also be subject to reporting 

requirements. Many facilities and 

suppliers are subject to the reporting 

requirements in multiple subparts of 

Part 98. To determine whether you are 

affected by this action, you should 

carefully examine the applicability 

criteria found in 40 CFR part 98, subpart 

A. If you have questions regarding the 

applicability of this action to a 

particular facility, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section of this 

preamble. 

Judicial Review. Under section 

307(b)(1) of the CAA, judicial review of 

any of the final confidentiality 

determinations and rule amendments 

made in this final rule is available only 

by filing a petition for review in the U.S. 

Court of Appeals for the District of 

Columbia Circuit by July 25, 2011. 

Under CAA section 307(d)(7)(B), only 

an objection to this final rule that was 

raised with reasonable specificity 

during the period for public comment 

can be raised during judicial review. 

This section also provides a mechanism 

for us to convene a proceeding for 

reconsideration ‘‘[i]f the person raising 

an objection can demonstrate to EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of this rule.’’ Any person 

seeking to make such a demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, Environmental 

Protection Agency, Room 3000, Ariel 

Rios Building, 1200 Pennsylvania Ave., 

NW., Washington, DC 20004, with a 

copy to the person listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and a copy to the 

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30784 Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 

Associate General Counsel for the Air 

and Radiation Law Office, Office of 

General Counsel (Mail Code 2344A), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20004. Under CAA section 307(b)(2), 

the confidentiality determinations and 

rule amendments established by this 

action may not be challenged separately 

in any civil or criminal proceedings 

brought by EPA to enforce these 

requirements. 

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 

CBP Customs and Border Protection 

CEMS continuous emission monitoring 

system(s) 

CFR Code of Federal Regulations 

CH4 methane 

CO carbon monoxide 

CO2 carbon dioxide 

CO2e carbon dioxide-equivalent 

EIA Energy Information Administration 

EPA U.S. Environmental Protection Agency 

FR Federal Register 

GHG greenhouse gas 

GHGRP Greenhouse Gas Reporting Program 

HCFC–22 chlorodifluoromethane 

HFC–23 trifluoromethane (or CHF3) 

LDC local distribution company 

N2O nitrous oxide 

NAICS North American Industry 

Classification System 

NEI National Emissions Inventory 

NGO non-governmental organization 

OMB Office of Management and Budget 

PFCs perfluorocarbons 

PSD prevention of significant 

deteriorization 

QA/QC quality assurance/quality control 

RFA Regulatory Flexibility Act 

SF6 sulfur Hexafluoride 

SBREFA Small Business Regulatory 

Enforcement Fairness Act 

TRI Toxic Release Inventory 

USGS United States Geologic Survey 

UMRA Unfunded Mandates Reform Act 

U.S. United States 

Table of Contents 

I. Background 

A. Background on the Final Rule 

B. Approach To Making Confidentiality 

Determinations 

C. Subparts Covered by This Final Rule 

II. Confidentiality Determinations for Data 

Required by the Mandatory Greenhouse 

Gas Reporting Rule, Responses to Public 

Comments, and Final Rule Amendment 

A. Final Confidentiality Determinations 

B. Direct Emitters 

C. Suppliers 

D. Amendment to 40 CFR Part 2 

Addressing Treatment of Part 98 Data 

Elements 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 131132: Federalism 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. Background 

A. Background on the Final Rule 

On October 30, 2009, EPA published 

the Mandatory Greenhouse Gas 

Reporting Rule for collecting 

information regarding greenhouse gas 

(GHG) emissions from a broad range of 

industry sectors (74 FR 56260). Under 

40 CFR part 98 of the rule and its 

subsequent amendments (hereinafter 

referred to as Part 98), EPA will collect 

data from certain facilities and suppliers 

above specified thresholds. The data to 

be reported includes information on 

GHG emissions and GHGs supplied, 

including information necessary to 

characterize, quantify, and verify the 

GHG emissions and GHGs supplied 

data. In the preamble to Part 98, we 

stated, ‘‘Through a notice and comment 

process, we will establish those data 

elements that are ‘emissions data’ and 

therefore [under CAA section 114(c)] 

will not be afforded the protections of 

CBI. As part of that exercise, in response 

to requests provided in comments, we 

may identify classes of information that 

are not emissions data, and are CBI’’ (74 

FR 56287, October 30, 2009). 

On July 7, 2010, EPA proposed 

confidentiality determinations for Part 

98 data elements and proposed 

amending EPA’s regulation for handling 

confidential business information to add 

specific procedures for the treatment of 

Part 98 data (75 FR 39094; hereinafter 

referred to as the ‘‘July 7, 2010 CBI 

proposal’’). These proposed 

amendments to 40 CFR part 2 would 

allow EPA to release Part 98 data that 

are determined to be emission data or 

non-CBI upon finalizing the 

confidentiality status of these data. The 

amendments also set forth procedures 

for treatment of information in Part 98 

determined to be CBI. The proposed 

procedures are similar to or consistent 

with the existing 40 CFR part 2 

procedures. 

The July 7, 2010 CBI notice proposed 

confidentiality determinations for the 

data elements in the subparts that were 

included in the 2009 final Part 98 rule 

(see 74 FR 56260, October 30, 2009), in 

four subparts that were finalized in July 

2010 (see 75 FR 39736, July 12, 2010), 

and in seven new subparts that had 

been proposed but not yet finalized as 

of July 7, 2010 (see 75 FR 18576, 75 FR 

18608, and 75 FR 18652, April 12, 

2010). The July 7, 2010 CBI proposal 

also covered proposed changes to the 

reporting requirements for some of the 

2009 final Part 98 subparts. These 

changes had been proposed in two 

separate rulemakings (see 75 FR 18455, 

April, 12, 2010; and 75 FR 33950, June 

15, 2010). 

On July 20, 2010, EPA issued another 

proposed rulemaking that changed the 

description of some reported data 

elements and required reporting of some 

new data elements (75 FR 48744; 

hereinafter referred to as the ‘‘July 20, 

2010 revisions proposal’’). These 

changes were subsequently finalized on 

December 17, 2010 (75 FR 79092). Also 

on July 20, 2010, EPA issued a 

supplemental CBI proposal that 

proposed confidentiality determinations 

for the new and revised data elements 

that were proposed in the July 20, 2010 

revisions notice (75 FR 43889; 

hereinafter referred to as the ‘‘July 20, 

2010 supplemental CBI proposal.’’) 

In this action, EPA is finalizing 

confidentiality determinations for Part 

98 data elements with certain 

exceptions that are discussed in more 

detail below. The Part 98 data elements 

covered by this action are described in 

Section I.C of this preamble. EPA is also 

finalizing the amendments to EPA’s 

regulation for handling confidential 

business information. 

B. Approach To Making Confidentiality 

Determinations 

In the July 7, 2010 CBI proposal, we 

described the methodology and 

rationale used for making 

confidentiality determinations. This 

methodology consisted of a two-step 

process in which we first grouped Part 

98 data elements into 22 data categories 

in all (11 direct emitter data categories 

and 11 supplier data categories) with 

each of the 22 data categories containing 

data elements that are similar in type or 

characteristics. EPA then proposed 

confidentiality status based on (1) 

whether the data qualify as emission 

data as defined in 40 CFR 2.301(a)(2)(i); 

and (2) for data that do not qualify as 

emission data, whether they qualify for 

confidential treatment under 40 CFR 

2.208. In the July 7, 2010 CBI proposal, 

EPA proposed that only five of the data 

categories meet the definition of 

emission data (see Table 2 of the 

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Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 30785 

1EPA has interpreted CAA section 114(c) to 

afford confidential treatment to both trade secrets 

and confidential business information. See 40 FR 

21987, 21990 (May 20, 1975). 

2 GHGs Reported, Production/Throughput 

Quantities and Composition, and Unit/Process 

Operating Characteristics. 

preamble for the July 7, 2010 CBI 

proposal for the list of the data 

categories proposed as emission data). 

We proposed that the remaining six 

direct emitter data categories and 11 

supplier data categories did not meet 

the definition of emission data in 40 

CFR 2.301(a)(2)(i). We then evaluated, 

on a category basis, whether the data 

elements in these 17 data categories 

qualify as trade secret or confidential 

business information under CAA 

section 114(c) (hereinafter referred to 

collectively as CBI).1 In particular, we 

followed EPA’s criteria under 40 CFR 

2.208(e)(i) to determine whether data 

qualifies as CBI, focusing on whether 

disclosure of the data in each category 

would be likely to cause ‘‘substantial 

harm to the business’s competitive 

position.’’ We evaluated the data 

elements by category and proposed 

confidentiality determinations that 

applied to all data elements within each 

category, except for three supplier data 

categories,2 where we proposed 

confidentiality determinations for 

individual data elements within the 

category. 

Lists of the proposed data categories 

and EPA’s proposed determinations are 

shown in Table 2 and Table 3 of the 

preamble to the July 7, 2010 CBI 

proposal. Further information on EPA’s 

general approach and decision process 

is presented in Section I.C of the 

preamble to the July 7, 2010 CBI 

proposal. Descriptions of the data 

categories and detailed rationales for the 

proposed confidentiality determinations 

for each data category are presented in 

Section II.C (for direct emitters) and 

Section II.D (for suppliers) of the 

preamble for the July 7, 2010 CBI 

proposal and Section I.C. of the 

preamble for the July 20, 2010 

supplemental CBI proposal. 

C. Subparts Covered By This Final Rule 

This final rule addresses the 

confidentiality of data elements 

reported under the following subparts of 

40 CFR part 98, promulgated on October 

30, 2009 (74 FR 56260) (as amended in 

2010), excluding those data elements in 

the Inputs to Emission Equation 

category identified in the ‘‘Interim Final 

Regulation Deferring the Reporting of 

Certain Data Elements Required Under 

the Mandatory Reporting of Greenhouse 

Gases Rule’’ (75 FR 81338, December 27, 

2010). 

• Subpart A, General Provisions (as 

amended by 75 FR 39736, July 12, 2010; 

75 FR 66434, October 28, 2010; and 75 

FR 79092, December 17, 2010); 

• Subpart C, General Stationary Fuel 

Combustion Sources (as amended by 

75 FR 79092, December 17, 2010); 

• Subpart D, Electricity Generation 

(as amended by 75 FR 79092, December 

17, 2010); 

• Subpart E, Adipic Acid Production 

(as amended by 75 FR 66434, October 

28, 2010); 

• Subpart F, Aluminum Production 

as amended by 75 FR 79092, December 

17, 2010); 

• Subpart G, Ammonia 

Manufacturing (as amended by 75 FR 

79092, December 17, 2010); 

• Subpart H, Cement Production (as 

amended by 75 FR 66434, October 28, 

2010); 

• Subpart K, Ferroalloy Production 

(as amended by 75 FR 66434, October 

28, 2010); 

• Subpart N, Glass Production (as 

amended by 75 FR 66434, October 28, 

2010); 

• Subpart O, HCFC–22 Production 

and HFC–23 Destruction (as amended 

by 75 FR 66434, October 28, 2010); 

• Subpart P, Hydrogen Production (as 

amended by 75 FR 66434, October 28, 

2010); 

• Subpart Q, Iron and Steel 

Production (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart R, Lead Production; 

• Subpart S, Lime Manufacturing (as 

amended by 75 FR 66434, October 28, 

2010); 

• Subpart U, Miscellaneous Uses of 

Carbonate; 

• Subpart V, Nitric Acid Production 

(as amended by 75 FR 66434, October 

28, 2010 and 75 FR 79092, December 17, 

2010); 

• Subpart X, Petrochemical 

Production (as amended by 75 FR 

79092, December 17, 2010); 

• Subpart Y, Petrochemical 

Production (as amended by 75 FR 

79092, December 17, 2010); 

• Subpart Z, Phosphoric Acid 

Production (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart AA, Pulp and Paper 

Manufacturing; 

• Subpart BB, Silicon Carbide 

Production; 

• Subpart CC, Soda Ash 

Manufacturing (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart EE, Titanium Dioxide 

Production (as amended by 75 FR 

66434, October 28, 2010); 

• Subpart GG, Zinc Production (as 

amended by 75 FR 66434, October 28, 

2010); 

• Subpart HH, Municipal Solid Waste 

Landfills (as amended by 75 FR 66434, 

October 28, 2010); 

• Subpart LL, Suppliers of Coal-based 

Liquid Fuels (as amended by 75 FR 

79092, December 17, 2010); 

• Subpart MM, Suppliers of 

Petroleum Products (as amended by 75 

FR 66434, October 28, 2010); 

• Subpart NN, Suppliers of Natural 

Gas and Natural Gas Liquids (as 

amended by 75 FR 66434, October 28, 

2010); 

• Subpart OO, Suppliers of Industrial 

Greenhouse Gases (as amended by 75 

FR 79092, December 17, 2010); and 

• Subpart PP, Suppliers of Carbon 

Dioxide (as amended by 75 FR 79092, 

December 17, 2010). 

In addition, this final rule addresses 

the confidentiality of data elements 

reported under the following subparts 

promulgated on July 12, 2010 (75 FR 

39736, July 12, 2010), excluding those 

data elements in the Inputs to Emission 

Equations category identified in the 

proposed ‘‘Change to the Reporting Date 

for Certain Data Elements Required 

Under the Mandatory Reporting of 

Greenhouse Gases Rule’’ (75 FR 81350, 

December 27, 2010). 

• Subpart T, Magnesium Production 

(75 FR 39736, July 12, 2010); 

• Subpart FF, Underground Coal 

Mines (75 FR 39736, July 12, 2010); 

• Subpart II, Wastewater Treatment 

(75 FR 39736, July 12, 2010); and 

• Subpart TT, Industrial Landfills (75 

FR 39736, July 12, 2010). 

II. Confidentiality Determinations for 

Data Required by the Mandatory 

Greenhouse Gas Reporting Rule, 

Responses to Public Comments, and 

Final Rule Amendment 

A. Final Confidentiality Determinations 

In this action, EPA is finalizing the 

confidentiality determinations for Part 

98 data elements reported under the 

subparts specified in Section I.C. of this 

preamble. Specifically, EPA is finalizing 

the category assignments for data 

elements, the category-specific 

confidentiality determinations (which 

apply to all data elements assigned to 

such categories) and, for categories 

without category-specific confidentiality 

determinations, the determinations for 

the individual data elements within 

those data categories. The final 

confidentiality determinations for 

individual data categories are 

summarized in Table 2 of this preamble 

for direct emitters and Table 3 of this 

preamble for suppliers. As indicated in 

the tables, EPA made confidentiality 

determinations by data category for nine 

of the direct emitter data categories and 

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30786 Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 

eight of the supplier data categories. For 

the remaining two direct emitter data 

categories (Unit/Process Static 

Characteristics that are Not Inputs to 

Emission Equations and Unit/Process 

Operating Characteristics that are Not 

Inputs to Emission Equations) and three 

supplier data categories (GHGs 

Reported, Production/Throughput 

Quantities and Composition, and Unit/ 

Process Operating Characteristics), EPA 

made confidentiality determinations for 

each individual data element rather 

than a single determination for the data 

category as a whole. Because the 

confidentiality determinations were 

made for each individual data element, 

these categories contain both CBI and 

non-CBI data elements. 

The data category assignments for the 

Part 98 data elements specified in 

Section I.C of the preamble and their 

final confidentiality determinations are 

provided in the memorandum ‘‘Final 

Data Category Assignments and 

Confidentiality Determinations for Part 

98 Reporting Elements’’ (see Docket 

EPA–HQ–OAR–2009–0924 and the Web 

site, http://www.epa.gov/climatechange/ 

emissions/ghgrulemaking.html). 

TABLE 2—SUMMARY OF FINAL CONFIDENTIALITY DETERMINATIONS FOR DIRECT EMITTER DATA CATEGORIES

Data category 

Confidentiality determination for data elements 

in each category 

Emission 

dataa

Data that are 

not emission 

data and not 

CBI 

Data that are 

not emission 

data but are 

CBIb

Facility and Unit Identifier Information ......................................................................................... X ........................ ........................

Emissions ..................................................................................................................................... X ........................ ........................

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 ......................... ........................ Xc Xc

Unit/Process Operating Characteristics that are Not Inputs to Emission Equations .................. ........................ Xc Xc

Test and Calibration Methods ..................................................................................................... ........................ X ........................

Production/Throughput Data that are Not Inputs to Emission Equations ................................... ........................ ........................ X 

Raw Materials Consumed that are Not Inputs to Emission Equations ....................................... ........................ ........................ X 

Process-Specific and Vendor Data Submitted in BAMM Extension Requests ........................... ........................ ........................ X 

a Under CAA section 114, emission data is not entitled to confidential treatment. See Section I.C of the preamble for the July 7, 2010 CBI proposal (75 FR 39094, July 7, 2010) for further discussion of CAA section 114 requirements. The term emission data is defined at 40 CFR 

2.301(a)(2)(i). bSection 114(c)of the CAA affords confidential treatment to data (except emission data) that are considered CBI. 

cEPA did not make a category-specific confidentiality determination for this category but instead made determination for individual data elements. The data category contains data elements determined to be CBI and data elements determined to be non-CBI. 

TABLE 3—SUMMARY OF FINAL CONFIDENTIALITY DETERMINATIONS FOR SUPPLIER DATA CATEGORIES

Data category 

Confidentiality determinations for data elements 

in each category 

Emission 

dataa

Data that are 

not emission 

data and not 

CBI 

Data that are 

not emission 

data but are 

CBIb

GHGs Reported ........................................................................................................................... ........................ Xc Xc

Production/Throughput Quantities and Composition ................................................................... ........................ Xc Xc

Identification Information .............................................................................................................. ........................ X ........................

Unit/Process Operating Characteristics ....................................................................................... ........................ Xc Xc

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 Requests ........................... ........................ ........................ X 

a Under CAA section 114, emission data is not entitled to confidential treatment. See Section I.C of the preamble for the July 7, 2010 CBI proposal (75 FR 39094, July 7, 2010) for further discussion of CAA section 114 requirements. The term emission data is defined at 40 CFR 

2.301(a)(2)(i). bSection 114(c) of the CAA affords confidential treatment to data (except emission data) that are considered CBI. 

cEPA did not make a category-specific confidentiality determination for this category but instead made determination for individual data elements. The data category contains data elements determined to be CBI and data elements determined to be non-CBI. 

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Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 30787 

1. Major Changes to the Scope and 

Determinations for Particular Data 

Categories 

This section provides a summary of 

major changes to the scope of this action 

as well as changes to the determinations 

for particular data categories. For a 

discussion of changes to the 

confidentiality determinations for 

particular data elements, see Section 

II.B of this preamble for direct emitters 

and Section II.C of this preamble for 

suppliers. 

• Although we proposed 

determinations for the data elements in 

the following subparts, we have decided 

not to make final determinations for the 

data elements in these subparts in this 

action for the reasons specified in 

Section II.A.3 of this preamble: 

— Subpart I, Electronics Manufacturing; 

— Subpart L, Fluorinated Gas 

Production; 

— Subpart W, Petroleum and Natural 

Gas Systems; 

— Subpart DD, Sulfur Hexafluoride 

(SF6) and Perfluorocarbons (PFCs) 

from Electrical Equipment at an 

Electric Power System; 

— Subpart QQ, Importers and Exporters 

of Fluorinated Greenhouse Gases 

Contained in Pre-Charged Equipment 

or Closed-Cell Foams; 

— Subpart RR, Geologic Sequestration 

of Carbon Dioxide; 

— Subpart SS, Sulfur Hexafluoride and 

PFCs from Electrical Equipment 

Manufacture or Refurbishment; and 

— Subpart UU, Injection of Carbon 

Dioxide. 

• We are finalizing CBI 

determinations for 24 data elements that 

were added to Part 98 in response to 

comment on the three proposed 

revisions notices. The proposed 

revisions were addressed in the July 

2010 CBI proposals. The 24 data 

elements are the same types of data as 

those data elements that were included 

in the CBI proposals and therefore are 

given the same confidentiality 

determinations in this final action. For 

a more detailed explanation, please see 

Section II.A.3 of this preamble. 

• Although we proposed a 

determination for the direct emitter data 

category Inputs to Emission Equations, 

we have decided not to make a final 

determination for this data category in 

this action for the reasons specified in 

Section II.A.4 of this preamble. 

• Although we proposed categorywide determinations for the following 

direct emitter data categories, in this 

action we have made final 

determinations for individual data 

elements in these categories for the 

reasons specified in Section II.A.5 of 

this preamble: 

—Unit/Process Static Characteristics 

that are Not Inputs to Emission 

Equations. 

—Unit/Process Operating 

Characteristics that are Not Inputs to 

Emission Equations. 

Following is a summary of the major 

comments and responses regarding the 

scope of this action, EPA’s approach 

and rationale for making confidentiality 

determinations, and other overarching 

issues. Responses to major comments on 

determinations for the direct emitter 

data elements and supplier data 

elements are included in Sections II.B.2 

through II.B.10 (direct emitter data 

categories) and II.C.2 through II.C.13 

(supplier data categories) of this 

preamble. Responses to comments on 

the proposed amendments to 40 CFR 

part 2 are included in Section II.D of 

this preamble. Other comments and 

responses thereto can be found in 

‘‘Proposed Confidentiality 

Determinations and Data Handling 

Procedures for Part 98 Data: Responses 

to Public Comments’’ in Docket EPA– 

HQ–OAR–2009–0924 and on the Web 

site, http://www.epa.gov/climatechange/ 

emissions/ghgrulemaking.html. 

2. General Approach To Making CBI 

Determinations 

Comment: Many commenters 

supported EPA’s approach of grouping 

together similar data elements and 

making determinations based on their 

similar characteristics. Several 

commenters stated that the approach is 

reasonable and that the proposed data 

categories are appropriate. Many 

commenters agreed with EPA that this 

approach would speed the publication 

of data and reduce both the 

administrative burden on EPA and the 

amount of paperwork for reporters 

submitting their annual reports. Some 

commenters stated that this approach 

would benefit reporters of data 

determined to be CBI, as it would 

prevent competitors from forcing them 

to defend data on a case-by-case basis in 

Agency CBI proceedings. Another 

commenter stated that EPA’s approach 

would provide certainty to the regulated 

community regarding which specific 

data elements will be afforded 

protection from disclosure. This 

commenter believes that an ad hoc 

approach could lead to inconsistent CBI 

determinations, both for the same data 

element in a given subpart and for 

similar data elements in different 

subparts. This commenter also stated 

that some small businesses may be 

unfamiliar with the Agency’s case-bycase confidentiality claim provisions 

and would be placed at a disadvantage 

to competitors who were familiar with 

the case-by-case process. 

Although many commenters 

supported EPA’s approach, other 

commenters argued that EPA should 

allow reporters to submit case-by-case 

CBI claims with their annual reports. 

Some commenters questioned EPA’s 

authority to make category-based 

confidentiality determinations. Several 

commenters argued that EPA should 

evaluate all CBI claims on a case-by-case 

basis, while others asserted that EPA 

should evaluate some claims this way. 

Some commenters argued that EPA’s 

approach to making CBI determinations 

for Part 98 data was inconsistent with 

other EPA programs that evaluate CBI 

claims on a case-by-case basis. Several 

commenters argued that case-by-case 

determinations provide greater 

flexibility to allow the proper 

consideration of facility-specific issues 

in context and that category-wide CBI 

determinations would not allow for a 

thorough evaluation of the potential 

economic impacts on individual 

facilities from the disclosure of sensitive 

information. Some commenters stated 

that case-by-case determinations are 

essential because each facility’s 

circumstances are unique. Others 

argued that retaining a case-by-case 

determination option would not 

preclude EPA from making the 

proposed category-based CBI 

determinations for some of the data 

elements. 

Many commenters asserted that they 

preferred case-by-case determinations 

despite the additional work and expense 

it would require. These commenters 

stated that individual reporters should 

be allowed to decide whether the cost 

and effort involved in preparing a 

confidentiality claim was worthwhile. 

Some commenters stated that this 

approach would deprive regulated 

entities of a fair and reasonable 

procedure to document CBI claims. 

Other commenters stated that EPA’s 

approach infringed upon the rights of 

regulated entities by imposing 

presumptive CBI determinations and 

not allowing individual entities to 

submit their own CBI claims. A few 

commenters argued that EPA was 

effectively preventing reporters from 

rebutting CBI determinations for Part 98 

data. 

Response: EPA agrees with 

commenters who stated that categorybased CBI determinations reduce the 

burden on the regulated community. 

EPA also agrees with comments that 

category-based CBI determinations 

allow for timely publication of emission 

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30788 Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 

data and data not otherwise eligible for 

confidential treatment. If EPA allowed 

individual CBI claims, EPA would 

likely receive a significant number of 

claims because of the large number of 

individual reporters required to submit 

annual reports (more than 10,000) and 

the large number of different data 

elements (more than 1,900). Facilities 

would likely make multiple CBI claims 

that would each need to be 

substantiated. Given the time and 

resources required for facilities to 

prepare the claims and for EPA to 

evaluate each individual CBI claim, 

timely publication of data would be 

difficult to achieve. 

We disagree with commenters who 

stated that EPA does not have the 

authority to make category-based CBI 

determinations. While EPA generally 

makes CBI determinations on a case-bycase basis in accordance with 40 CFR 

part 2, EPA has authority, as 

demonstrated by the analogous 

provisions of 40 CFR 2.207 (Class 

Determinations), to make category-based 

CBI determinations where it would 

serve a useful purpose (40 CFR 

2.207(a)(3)) and the data in a category 

share common characteristics that result 

in identical treatment of all data in the 

category (40 CFR 207(a)(2)). As 

discussed above, EPA concluded that 

the categorical approach, added to 40 

CFR 2.301 through this action, was 

warranted as it will result in the timely 

release of data while also reducing the 

burden on reporting entities to 

substantiate multiple CBI claims for 

each annual report. EPA also believes 

that the categorical approach is 

appropriate in this case because there 

are over 1,900 Part 98 data elements 

included in this action and many of 

them share common characteristics. 

Consistent with the provisions of 40 

CFR 2.207, EPA issued the July 2010 

CBI proposals containing categorical 

confidentiality determinations for Part 

98 data, and provided the public an 

opportunity to comment. EPA 

specifically sought comment on whether 

the data categories were appropriate or 

if they were too broad or too narrow. 

Based on the comments received, of the 

22 data categories proposed, EPA 

concluded that categorical 

determinations were not appropriate for 

five data categories. For these five data 

categories, EPA made confidentiality 

determinations for individual data 

elements. 

EPA also disagrees with the 

comments that the approach taken in 

this final action is inconsistent with the 

handling of CBI claims under other EPA 

programs or that the approach is 

contrary to regulatory provisions for 

CBI. As we explained in the July 7, 2010 

CBI proposal, our CBI determinations 

were made using the definition of 

emission data at 40 CFR 2.301(a)(2)(i). 

EPA has used this definition of emission 

data for over 20 years to make decisions 

on individual case-by-case CBI claims. 

For data that did not meet the definition 

of emission data, we used the existing 

criteria from the CBI regulations at 40 

CFR 2.208 to evaluate and determine the 

confidentiality of the Part 98 data 

elements in this action. 

We further disagree with the comment 

that facility-specific issues cannot be 

addressed through the category-based 

approach taken in this final action. In 

the July 2010 CBI proposals, we 

expressly sought comment on facilityspecific situations in which CBI 

protection should be provided. We have 

received comments on facility-specific 

issues and addressed those comments in 

the relevant sections of this preamble. 

Specifically, for the handful of data 

elements where commenters were able 

to demonstrate that conditions varied 

significantly among reporters, EPA 

decided not to make a final 

confidentiality determination for the 

particular data element in this final 

action. The confidentiality status of 

these data elements will be evaluated on 

a case-by-case basis, in accordance with 

the existing CBI regulations in 40 CFR 

part 2, subpart B upon receipt of a 

public request for these data elements. 

We also disagree with the commenters 

who claimed that EPA should provide 

reporters a case-by-case determination 

option. As mentioned above, we have 

addressed the comments on facilityspecific issues in this final action. We 

received no specific comment or 

information indicating, nor do we have 

reason to believe, that reporting 

facilities would have any new or 

different information to substantiate 

their CBI claims at the time they submit 

data beyond that information available 

to them during the public comment 

periods on the CBI proposals. We 

therefore do not believe that a case-bycase determination at the time of data 

submittal would result in a different 

confidentiality determination. 

We further disagree with commenters 

who stated that EPA’s approach 

imposed presumptive CBI 

determinations without allowing 

businesses a fair and reasonable 

procedure to document CBI claims. In 

July 2010, we proposed CBI 

determinations for Part 98 data elements 

and provided stakeholders as well as the 

general public an opportunity to 

comment on data elements as well as 

data categories that might qualify for 

CBI protection and made it clear that 

this was the opportunity for reporters to 

substantiate their CBI claims. For 

example, in Section I.E of the preamble 

to the July 7, 2010 CBI proposal, we 

stated that ‘‘this rulemaking provides the 

reporting businesses an opportunity to 

justify any confidentiality claim they 

may have for the data they are required 

to submit’’ and in Section II.B of the July 

7, 2010 CBI proposal preamble we 

specifically solicited comment on the 

proposed data categories, confidentiality 

determinations, and any ‘‘unique 

circumstances * * * that would 

warrant making subpart-specific 

confidentiality determinations.’’ 

Stakeholders were given a 60-day 

comment period to review the proposed 

determinations and prepare 

documentation substantiating any CBI 

claims. We consider the 60-day 

comment period to be more than 

adequate, especially in light of the 15 

days businesses have under the existing 

CBI regulations to respond to requests 

for information substantiating a CBI 

claim (see 40 CFR 2.204(e)). During the 

comment periods, the reporting 

facilities were able to consider the 

Agency’s proposed confidentiality 

determinations in preparing their CBI 

claims and supporting documentation; 

businesses do not have such insight into 

EPA’s likely positions when 

substantiating CBI claims on a case-bycase basis under the existing CBI 

regulations that apply to non-Part 98 

data. As shown in this notice, EPA 

considered and addressed the comments 

received in finalizing the confidentiality 

determinations in this action. 

Finally, we disagree with commenters 

who argued that the approach we 

selected prevents facilities from 

rebutting EPA’s determinations. By 

issuing the CBI proposals for public 

comment, the Agency already gave the 

reporting facilities an opportunity to 

rebut the Agency’s proposed 

confidentiality determinations. In 

contrast, under the existing CBI 

regulations that apply to non-Part 98 

data, businesses would not know of 

EPA’s position when substantiating CBI 

claims and therefore would not have an 

opportunity to rebut EPA’s position in 

its substantiation. Further, as discussed 

in more detail in the Judicial Review 

section above, the confidentiality 

determinations made in this final action 

are subject to judicial review under 

section 307(b) of the CAA, thereby 

offering reporters another opportunity to 

rebut the Agency’s determination. 

3. Scope of the CBI Proposal 

Comment: In the July 7, 2010 CBI 

proposal, we included data elements 

from seven new subparts that had been 

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Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 30789 

3The reporting rules for CO2 injection and 

sequestration were initially proposed under a single 

subpart (subpart RR). However, EPA later decided 

to separate subpart RR into two subparts: Geologic 

Sequestration of Carbon Dioxide (subpart RR) and 

Injection of Carbon Dioxide (subpart UU). 

4Facilities subject to 40 CFR part 98, subpart RR 

must submit requests for exemption as a Research 

and Development Project or their proposed 

Monitoring, Reporting and Verification Plans in 

2011. Since these documents likely will be 

submitted before the final confidentiality 

determinations for subpart RR are made, EPA will 

evaluate individual CBI claims regarding these two 

submittals on a case-by-case basis, in accordance 

with the existing CBI regulations in 40 CFR part 2, 

subpart B, either upon EPA’s receipt of these 

documents or upon receipt of a public request for 

the documents. For additional information 

regarding these data elements, see 75 FR 75060, 

December 1, 2011. 

proposed but not yet finalized (i.e., 

subparts I, L, W, DD, SS, RR,3 and QQ). 

These seven subparts were subsequently 

finalized in three separate rulemakings 

(see 75 FR 74458, November 30, 2010; 

75 FR 74774, December 1, 2010; and 75 

FR 75060, December 1, 2010). During 

the comment period for the CBI 

proposal, a few commenters 

recommended that EPA not finalize 

confidentiality determinations for data 

elements from the seven proposed 

subparts until after EPA finalized those 

subparts. These commenters expressed 

concern that data elements in the 

finalized subparts would differ from 

those in the proposed subparts. The 

commenters therefore suggested that 

EPA not finalize the CBI determinations 

for data elements in these seven 

subparts without providing the public 

with opportunity to comment on the 

confidentiality determinations for any 

new data elements that might be added 

when these subparts were finalized. 

The July 2010 CBI proposals also 

included confidentiality determinations 

for new and revised data elements that 

were proposed in three Part 98 revision 

notices (see 75 FR 18455, April, 12, 

2010, 75 FR 33950, June 15, 2010 and 

75 FR 48744, August 11, 2010). One 

commenter suggested that EPA allow 

stakeholders to submit comments on the 

CBI determinations for these data 

elements after EPA finalized the Part 98 

revision notices. The commenter did not 

identify the specific notice or proposed 

data elements that were of concern. 

Response: EPA has decided to 

undertake a separate action to determine 

the confidentiality status for data 

elements reported under subparts I, L, 

W, DD, SS, RR, UU, and QQ. As 

anticipated by some of the commenters, 

we made significant changes (both in 

number and substance) to the reporting 

requirements between proposal and 

finalization of these subparts. For 

instance, we added approximately 300 

new data elements. Further, because 

EPA made substantive revisions to the 

subparts in response to comment (e.g., 

revisions to the measurement and 

calculation methodologies), the revised 

and added data elements differ 

significantly from the data elements that 

were included in the July CBI proposal 

for these subparts. In light of the above, 

we have decided to re-propose 

confidentiality determinations for the 

data elements in subparts I, L, W, DD, 

SS, RR, UU, and QQ. We plan to issue 

this re-proposal and finalize the 

confidentiality determinations for the 

data elements before the March 31, 2012 

reporting deadline for these subparts.4

However, EPA disagrees with the 

commenter who argued that EPA 

needed to allow additional time for 

comments on the July CBI proposals 

after finalization of the three proposed 

revisions to Part 98 covered by the CBI 

proposals (i.e., those proposed in 75 FR 

18455, April, 12, 2010, 75 FR 33950, 

June 15, 2010 and 75 FR 48744, August 

11, 2010). The July 2010 CBI proposals 

included all data elements that were 

either revised or added in these 

proposed amendments. The final 

amendments made minor changes to 

certain proposed data elements, deleted 

data elements, and added 24 new data 

elements. A list of the new data 

elements are provided in the 

memorandum ‘‘Final Data Category 

Assignments and Confidentiality 

Determinations for Part 98 Reporting 

Elements’’ in Docket EPA–HQ–OAR– 

2009–0924 and on EPA’s Web site, 

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

emissions/CBI.html. Most of the changes 

to the reported data elements are 

editorial in nature (e.g., clarifications to 

the existing requirements, changes to 

the rule citation, or corrections to crossreferences) and, as revised, did not 

result in changes to the data category 

assignment or CBI determination for 

these data elements. 

Although the July 2010 CBI proposals 

did not specifically address the new 

data elements that were added when 

EPA finalized these three revision 

notices, the CBI proposals included 

proposed confidentiality determinations 

for data elements that are of the same 

types as these new data elements. 

Having proposed and sought comment 

on the confidentiality determinations 

and supporting rationales for the same 

types of data in the CBI proposals, EPA 

does not believe that additional time is 

necessary for comment on these 24 new 

data elements for which we are 

finalizing determinations in this action. 

Based on the comments received, we are 

able to include in this action final 

confidentiality determinations for these 

24 data elements consistent with the 

final determinations for the same types 

of data elements. Specifically, for each 

of the 24 data elements, we have 

identified the same type of data 

elements that were included in the July 

2010 CBI proposals. We have assigned 

each of the 24 new data elements to the 

category with the same type of data 

elements, and applied the final 

confidentiality determinations for the 

assigned category to the new data 

element. 

Where a new data element is the same 

type as a data element for which EPA 

has made an individual confidentiality 

determination (as opposed to a 

categorical determination), EPA has 

made the same individual 

determination for such new data 

element. The 24 data elements, their 

final CBI determinations, and rationales 

for these determinations (including 

examples of the same types of data 

elements covered in the July 2010 CBI 

proposals) are discussed in detail in 

Section II.B of this preamble for direct 

emitter source categories and Section 

II.C of this preamble for supplier source 

categories. 

4. Inputs to Emission Equations Data 

Category 

Comment: EPA received many 

comments from industry and other 

stakeholders regarding our July 7, 2010 

CBI proposed determination that data 

elements in the Inputs to Emission 

Equations category are emission data, as 

defined in 40 CFR 2.301(a)(2)(i), that are 

ineligible for confidential treatment. 

Many commenters from industry 

disagreed with this determination. 

These commenters were concerned that 

public availability of these data 

elements would harm their competitive 

position. Other commenters supported 

our proposal and stated that 

transparency was important for building 

public confidence in the accuracy of the 

reported data and for enabling 

meaningful public comment on any 

future Climate Change policy. 

Response: In the July 2010 CBI 

proposals, EPA proposed that the data 

elements in the Inputs to Emission 

Equations category are emission data 

under 40 CFR 2.301(a)(2)(i). Under the 

Clean Air Act section 114(c), EPA 

cannot protect emission data as 

confidential business information. EPA 

received comments raising serious 

concerns regarding potential harmful 

consequences from public availability of 

these data elements. EPA concluded 

that some of these comments warrant 

more extensive evaluation. For this 

reason, EPA decided not to finalize the 

confidentiality determination for the 

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data elements in the direct emitter data 

category Inputs to Emission Equations 

in this action. Instead, we recently 

published a ‘‘Call for Information: 

Information on Inputs to Emission 

Equations under the Mandatory 

Reporting of Greenhouse Gases Rule’’ 

that solicits additional information to 

help with the more in-depth evaluation 

relative to Inputs to Emission Equations 

(see 75 FR 81366, December 27, 2010). 

In addition, EPA recently published an 

Interim Final notice to defer reporting of 

these data elements on a short-term 

basis (75 FR 81338, December 27, 2010) 

and a proposal to further defer reporting 

of these data elements for reporting 

years 2011, and 2012 until March 31, 

2014 (75 FR 81350, December 27, 2010). 

As explained in these notices, EPA 

concluded that it should complete its 

evaluation of these data elements and 

make final confidentiality 

determinations for the data elements in 

this category before collecting such data 

to avoid possibly causing unnecessary 

and unintentional, but irreparable, harm 

which reporters allege could occur if 

Inputs to Emission Equations were 

made publicly available. 

In the July 7, 2010 CBI proposal, EPA 

defined the data elements in the Inputs 

to Emission Equations category as data 

elements that are ‘‘inputs to equations 

specified in Part 98 for calculating 

emissions to be reported by direct 

emitters * * * and are used by the 

reporting direct emitting sources to 

calculate their annual GHG emission 

under Part 98’’ (75 FR 39094 July 7, 

2010). However, in preparing the 

interim final and proposed deferral 

notices described above, EPA noted that 

the July 2010 CBI proposals 

inadvertently included in the Inputs to 

Equations category 69 data elements 

that are information related to emissions 

calculations but are not the actual 

inputs specified in any Part 98 emission 

calculation. For example, a subpart may 

require that reporters complete a 

particular calculation for each unit 

across a facility. In this circumstance, a 

reporter would gather necessary data 

and complete the calculation for each 

unit. Although Part 98 specifies that 

reporters must complete the calculation 

for each unit, the actual number of units 

would not be an input to the emission 

equation based on our description of the 

Inputs to Equations category. 

Thirty-seven data elements, listed 

below, were moved out of the Inputs to 

Equations category because after further 

consideration, we determined the 

frequency of measurement that is 

prescribed in the ‘‘Calculating GHG 

emissions’’ sections differs from that of 

the data element that is reported. For 

example, in Equation Y–1a in 

98.253(b)(1)(ii)(a), ‘‘CCp’’, the average 

carbon content of the flare gas 

combusted,’’ is required to be monitored 

either daily or weekly. The daily or 

weekly carbon content of the flare gas 

combusted, however, is not required to 

be reported. Instead, pursuant to 

98.256(e)(6), the ‘‘annual average carbon 

content of the flare gas’’ is required to 

be reported. Therefore, the carbon 

content is required to be measured and 

used to calculate emissions at a higher 

frequency than that which is required to 

be reported. As a result, the reporting 

element is an average of the actual 

values that are used to calculate the 

emissions, and is not actually used to 

calculate emissions. In cases such as 

these, we have determined that the 

reporting elements are not inputs to 

equations. 

• Annual volume of flare gas 

combusted (reported under 40 CFR 

98.256(e)(6)). 

• Annual average molecular weight of 

the flare gas (reported under 40 CFR 

98.256(e)(6)). 

• Annual average Carbon content of 

the flare gas for each flare (reported 

under 40 CFR 98.256(e)(6)). 

• Annual volume of flare gas 

combusted for each flare (reported 

under 40 CFR 98.256(e)(7)). 

• Annual average CO2 concentration 

for each flare (reported under 40 CFR 

98.256(e)(7)). 

• Annual average concentration of 

carbon containing compound other than 

CO2 in the flare gas stream for each flare 

(reported under 40 CFR 98.256(e)(7)(i)). 

• Annual volume of flare gas 

combusted (reported under 40 CFR 

98.256(e)(8)). 

• Annual average higher heating 

value of the flare gas (reported under 40 

CFR 98.256(e)(8)). 

• Annual average value of the exhaust 

gas flow rate reported by refineries 

(reported under 40 CFR 98.256(f)(7)). 

• Annual average value of %CO2

reported by refineries (reported under 

40 CFR 98.256(f)(7)). 

• Annual average value of %CO 

reported by refineries (reported under 

40 CFR 98.256(f)(7)). 

• Annual average value of the inlet 

air flow rate reported by refineries 

(reported under 40 CFR 98.256(f)(8)). 

• Annual average value of oxygenenriched air flow rate reported by 

refineries (reported under 40 CFR 

98.256(f)(8)). 

• Annual average value of %O2

reported by refineries (reported under 

40 CFR 98.256(f)(8)). 

• Annual average value of %Ooxy

reported by refineries (reported under 

40 CFR 98.256(f)(8)). 

• Annual average value of %CO2

reported by refineries (reported under 

40 CFR 98.256(f)(8)). 

• Annual average value of %CO 

reported by refineries (reported under 

40 CFR 98.256(f)(8)). 

• Annual average value of the inlet 

air flow rate reported by refineries 

(reported under 40 CFR 98.256(f)(9)). 

• Annual average value of oxygenenriched air flow rate reported by 

refineries (reported under 40 CFR 

98.256(f)(9)). 

• Annual average value of %N2oxy

reported by refineries (reported under 

40 CFR 98.256(f)(9)). 

• Annual average value of %N2

exhaust reported by refineries (reported 

under 40 CFR 98.256(f)(9)). 

• Average coke burn-off quantity per 

cycle or measurement period for each 

catalytic cracking unit, traditional fluid 

coking unit, and catalytic reforming unit 

reported by refineries (reported under 

40 CFR 98.256(f)(13)). 

• Annual volume of recycled tail gas 

(if not used to calculate the recycling 

correction factor) (reported under 40 

CFR 98.256(h)(5)). 

• Annual average mole fraction of 

carbon in the tail gas (if not used to 

calculate recycling correction factor) 

(reported under 40 CFR 98.256(h)(5)). 

• Annual volumetric flow discharged 

to the atmosphere (reported under 40 

CFR 98.256(l)(5)). 

• Annual average mole fraction of 

each GHG above the concentration 

threshold or otherwise required to be 

reported (reported under 40 CFR 

98.256(l)(5)). 

• Quarterly CEMS CH4 concentration 

data used to calculate CH4 liberated 

from degasification systems average 

from daily data (C) (reported under 40 

CFR 98.326(i)). 

• Quarterly CH4 concentration data 

based on weekly sampling data (C) 

(reported under 40 CFR 98.326(i)). 

• For landfills with gas collection 

systems, report total volumetric flow of 

landfill gas collected for destruction for 

the reporting year (reported under 40 

CFR 98.346(i)(1)). 

• Annual average CH4 concentration 

of landfill gas collected for destruction 

(reported under 40 CFR 98.346(i)(2)). 

• Monthly average temperature at 

which flow is measured for landfill gas 

collected for destruction (reported 

under 40 CFR 98.346(i)(3)). 

• Monthly average pressure at which 

flow is measured for landfill gas 

collected for destruction (reported 

under 40 CFR 98.346(i)(3)). 

• Cumulative volumetric biogas flow 

for each week that biogas is collected for 

destruction (if using daily sampling) 

(reported under 40 CFR 98.356(d)(2)). 

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• Weekly average CH4 concentration 

for each week that biogas is collected for 

destruction (if using daily sampling) 

(reported under 40 CFR 98.356(d)(3)). 

• Weekly average temperature at 

which flow is measured for biogas 

collected for destruction (if using daily 

sampling) (reported under 40 CFR 

98.356(d)(4)). 

• Weekly average moisture content 

for each week at which flow is 

measured for biogas collected for 

destruction (if using daily sampling) 

(reported under 40 CFR 98.356(d)(5)). 

• Weekly average pressure for each 

week at which flow is measured for 

biogas collected for destruction (if using 

daily sampling) (reported under 40 CFR 

98.356(d)(6)). 

Because the 69 data elements are not 

inputs to emission equations, we did 

not include these data elements in the 

December 27, 2010 deferral actions 

described above. At that time, we noted 

that ‘‘The list of inputs to equations is 

slightly different than what was 

proposed in the July 7, 2010 CBI 

proposal. Reporting elements included 

in this category are values used by 

reporters to calculate equation outputs’’ 

(75 FR 81350, December 27, 2010). In 

this action, we reassigned each of the 69 

data elements that are not the actual 

inputs to equations specified in Part 98 

to an appropriate direct emitter data 

category based on the type and 

characteristics of each data element. As 

a result, these data elements are no 

longer in the Inputs to Equations 

category but are in categories with the 

same types of data elements. Because 

the July 2010 CBI proposals included for 

comment proposed determinations and 

supporting rationales for data elements 

that are of the same types as these 69 

data elements, we believe that it is 

appropriate for us to take final action on 

the confidentiality determinations for 

these reassigned data elements. 

Specifically, where we have assigned a 

data element to a data category with a 

categorical determination, we applied 

the final confidentiality determination 

for the assigned category to the new data 

element. Where a new data element is 

assigned to a data category without a 

categorical confidentiality 

determination, we identified the same 

type of data element(s) in that category 

that were covered by the CBI proposals, 

and we applied the confidentiality 

determination for the same type of data 

elements to the reassigned data element. 

For a list of these reassigned data 

elements, the category to which they 

were assigned, and their final 

confidentiality status, and examples of 

the same type of data element 

indentified in the particular category, 

see Table C in the memorandum ‘‘Final 

Data Category Assignments and 

Confidentiality Determinations for Part 

98 Reporting Elements’’ in Docket EPA– 

HQ–OAR–2009–0924 and on EPA’s Web 

site (see http://www.epa.gov/ 

climatechange/emissions/CBI.html). 

5. Categorical Determinations for the 

Direct Emitter Categories Unit/Process 

Static Characteristics and Unit/Process 

Operating Characteristics That Are Not 

Inputs to Emission Equations 

Comment: In the July 2010 CBI 

proposals, we proposed that all the data 

elements in the direct emitter categories 

Unit/Process Static Characteristics that 

are Not Inputs to Emission Equations 

and Unit/Process Operating 

Characteristics that are Not Inputs to 

Emission Equations would be non-CBI. 

In these proposals, we stated that the 

disclosure of the data elements in these 

data categories would be unlikely to 

cause competitive harm and also noted 

that some of the data elements were 

already available from other public 

sources. Several commenters expressed 

concern that EPA had not fully 

evaluated the potential harm of public 

availability of some of the data elements 

in these two categories and 

recommended that we re-evaluate the 

confidentiality determinations for these 

data elements in these two data 

categories. Some commenters disagreed 

with our conclusion that much of the 

data in these categories was already 

publicly available through other 

sources. Some commenters identified 

specific data elements and provided 

supporting rationale explaining why 

they should be eligible for confidential 

treatment. However, most commenters 

provided only broad statements that did 

not identify specific data elements or 

provide detailed supporting rationale, 

but instead expressed concern that 

disclosure of data elements in these 

categories could cause potential harm to 

some reporters. 

Response: In evaluating the comments 

submitted, EPA determined that the 

comments raised issues that warranted 

additional consideration. Because many 

of the comments did not specify the 

data elements that were of concern, EPA 

decided to re-evaluate each data 

element in these two data categories to 

ensure that concerns were fully 

addressed. As a result of our reevaluation, EPA decided not to make 

the proposed categorical determination 

that all data elements in these two 

categories are non-CBI and has 

determined that some of the data 

elements assigned to these data 

categories are eligible for confidential 

treatment. This decision was based on 

new information collected by the 

Agency and/or provided by 

commenters. For the summary of the 

comments and a detailed discussion of 

the rationale for final determinations for 

the data elements in these categories, 

see Sections II.B.6 and II.B.7 of this 

preamble. 

6. Timing of the CBI Proposal 

Comment: Several commenters 

expressed concern regarding the timing 

of the July 7, 2010 CBI proposal. These 

commenters stated that EPA should 

have addressed CBI in the April 10, 

2009 proposal for the GHG Reporting 

Rule (74 FR 16448). They asserted that 

EPA’s decision not to address CBI in the 

original proposal for the GHG Reporting 

Rule negatively affected their ability to 

properly evaluate Part 98 when it was 

initially proposed. Some commenters 

stated that they advocated for 

calculation methods that relied on mass 

balance equations because they believe 

that the inputs to those equations would 

be held confidential. Some commenters 

asserted that they would have supported 

third party verification had they known 

that reported data would not be afforded 

confidential treatment. 

In certain circumstances, the CAA 

allows parties to petition EPA to 

reconsider aspects of newly enacted 

regulations implementing the CAA. 

Some industries petitioned EPA 

regarding certain aspects of the Part 98 

requirements. Some commenters stated 

that EPA should have published the CBI 

proposal before discussing these 

petitions with industry and that EPA’s 

decision not to do so prejudiced the 

industries that participated in those 

discussions. 

Response: We disagree with 

commenters who stated that they did 

not have sufficient notice regarding 

types of data that would be eligible for 

confidential treatment because the CBI 

issue was not addressed during the 

April 10, 2009 proposal for the GHG 

Reporting Rule. We also disagree with 

commenters who suggested the timing 

of the CBI proposal prejudiced those 

reporters who entered into discussions 

with EPA regarding petitions for 

reconsideration of certain Part 98 

requirements prior to the publication of 

the July 2010 CBI proposals. We stated 

in the preamble to the April 10, 2009 

proposal that ‘‘emission data collected 

under CAA sections 114 and 208 cannot 

be considered CBI’’ (see 74 FR 16463, 

April 10, 2009). EPA’s CBI regulations 

define emission data at 40 CFR 2.301; 

EPA used this definition to determine 

which Part 98 data elements are 

emission data and therefore not eligible 

for confidential treatment pursuant to 

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CAA section 114(c). For data that do not 

meet the definition of emission data, 

EPA considered the confidentiality 

determination criteria at 40 CFR 2.208 

to make the CBI determinations. Both 

the emission data definition at 40 CFR 

2.301 and the confidentiality 

determination criteria at 40 CFR 2.208 

have been part of EPA’s CBI regulations 

since the regulations were first 

promulgated in 1976. Furthermore, the 

comments on the original Part 98 

proposal received in 2009 indicate that 

the commenters were aware that section 

114(c) of the CAA requires that emission 

data cannot be protected. As evidenced 

by the comments, commenters were 

aware 15 months before EPA’s 

publication of the July 7, 2010 CBI 

proposal that CAA section 114(c) 

requires emission data to be made 

publicly available (See 74 FR 56260 and 

56287, October 30, 2009). Commenters 

who entered into discussions with EPA 

regarding petitions in 2010 would also 

have been aware of CAA section 114(c) 

at the time they made these agreements. 

In light of EPA’s long-standing 

regulatory provisions, we reject 

commenters’ claim that they had 

insufficient notice regarding EPA’s 

approach to confidential treatment of 

data or that reporters who entered into 

settlement agreements were prejudiced. 

EPA notes that many of the 

commenters who expressed concern 

with the timing of the CBI proposal 

were primarily concerned with EPA’s 

proposal that data in the Inputs to 

Emissions Equations category would be 

publicly available. As discussed in more 

detail above, EPA is not finalizing in 

this action the confidentiality status for 

the data in the Inputs to Emission 

Equations category. For additional 

information on inputs to equations, 

please see Section II.A.4 of this 

preamble. 

7. Extent To Which CEMS Can Be Used 

to Reduce the Number of Data Elements 

Disclosed to the Public 

Comment: In the preamble to the July 

7, 2010 CBI proposal, we noted that 

facilities who choose to use continuous 

emission monitoring systems (CEMS) 

may have fewer CBI concerns. As these 

facilities use CEMS to monitor 

emissions, we observed that certain data 

elements would not be used as inputs to 

emission equations, which we had 

proposed to be emission data and 

therefore subject to disclosure under 

CAA section 114(c). In addition, 

facilities using CEMS would report 

fewer data elements than those using 

emission equations (75 FR 39109, July 7, 

2010). In that preamble, we requested 

comment on the extent to which CEMS 

could be used to relieve industry 

concerns regarding public disclosure of 

sensitive data. Several commenters 

agreed that CEMS may be a viable 

option for many sources because CEMS 

for measuring CO2 emissions are readily 

available. One commenter 

recommended that EPA require CEMS 

for reporters who want to withhold 

sensitive data. However, other 

commenters stated that using CEMS is 

expensive and is not a cost-effective 

approach for determining GHG 

emissions. Some commenters argued 

that CEMS would be a viable option 

only for sources that have few emission 

points because the costs of installing 

and operating CEMS units on a large 

number of stacks would be prohibitively 

expensive. Other commenters argued 

that Part 98 does not provide all source 

categories an option to use CEMS to 

measure GHG emissions and that CEMS 

would not be technically achievable for 

some industries. For example, some 

commenters stated that CEMS would 

not be technically feasible for the 

fluorochemical industry because of 

technical difficulties in designing a 

CEMS for monitoring fluorinated GHG 

emissions. These commenters argued 

that CEMS used in the fluorochemical 

industry would have to be able to detect 

a wide variety of fluorinated GHGs and 

would also have to withstand highly 

corrosive operating conditions due to 

the presence of hydrofluoric and 

hydrochloric acid in the fluorochemical 

process vent streams. 

Some commenters noted that CEMS 

could not be used to alleviate CBI 

concerns for the 2010 reporting year 

unless the sources had already installed 

CEMS to measure GHG emissions as of 

January 1, 2010. One commenter argued 

that facilities selected their 2010 

monitoring methods before EPA 

proposed to make raw material and 

other throughput information public. 

This commenter recommended that EPA 

delay reporting for at least one year to 

allow facilities an opportunity to 

purchase and install CEMS before 

having to report their emissions. 

Response: These comments relate to 

data elements in the Inputs to Emission 

Equations category, as the use of CEMS 

reduces the number of data elements 

necessary to be used as inputs to 

emission calculations. Currently, 20 of 

the 34 Part 98 subparts for direct 

emitters provide an option to use CEMS 

for determining CO2 emissions. In 

addition, the Part 98 subparts for adipic 

acid (subpart E) and nitric acid (subpart 

V) allow facilities to petition EPA for 

approval to use N2O CEMS. However, a 

CEMS option for other GHGs, such as 

CH4, SF6, and fluorinated GHGs, is not 

currently included in Part 98. EPA 

agrees with commenters that CEMS may 

not be practicable feasible at this time 

for all sources covered by the reporting 

rule, and therefore may not be an option 

in all circumstances where a reporter is 

concerned about the public disclosure 

of data they consider sensitive. We also 

recognize that many sources did not 

elect to use CEMS during the 2010 

reporting period and therefore would 

not be able to use CEMS to mitigate 

their CBI concerns for the 2010 

reporting year. However, as noted in 

Section II.A.4 of this preamble, EPA is 

addressing these concerns through a 

separate process. EPA has published an 

Interim Final Rule that will defer 

reporting of data elements in the Inputs 

to Emission Equation data category for 

the 2010 annual report (75 FR 81338, 

December 27, 2010) and a proposal to 

defer reporting of these data elements 

until 2014 (75 FR 81350, December 27, 

2010). EPA also issued a notice 

announcing a call for information 

soliciting additional information so that 

EPA can adequately evaluate additional 

monitoring and verification approaches 

that would not use sensitive data 

elements as Inputs to Emission 

Equations (75 FR 81366, December 27, 

2010). 

8. Duration of Confidentiality Treatment 

Comment: In the July 7, 2010 CBI 

proposal, EPA requested comment on 

whether there should be a time limit on 

protection of data determined to be CBI. 

A few commenters asserted that 

confidential treatment of CBI should be 

limited to a given period of time and 

stated that EPA should use its authority 

under 40 CFR 2.208(a) to disclose data 

when disclosure would no longer cause 

substantial harm to the reporters’ 

competitive position. These commenters 

argued that not all of the data 

determined to be CBI may warrant 

permanent treatment as confidential. 

Some commenters recommended that 

EPA develop a process to establish the 

duration of the confidential status of 

each type of information. One 

commenter recommended that CBI 

status automatically lapse after two 

years unless a reporter submits a request 

to extend the duration of CBI protection 

and makes a satisfactory showing that 

disclosure of the data would cause 

substantial harm to its competitive 

position. This commenter suggested that 

a two year period was a reasonable time 

period because of the rate at which the 

market changes. 

However, most commenters stated 

that CBI status should not be timelimited. Many stated that data 

designated as CBI remain relevant and 

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sensitive for many years after the 

reporting year has passed and that its 

disclosure at any time likely would 

cause competitive harm to the reporting 

entity. One commenter stated that 

industry marketing trends play out over 

long time frames and that competitors 

value market, process, and production 

data even after five or 10 years. One 

commenter recommended that CBI data 

remain protected as CBI for the life of 

the reporting entity. 

Response: In the July 7, 2010 CBI 

proposal, we recognized that market 

conditions change such that data once 

considered CBI may become less 

sensitive over time. Therefore, we 

requested comment on whether there 

were any particular Part 98 data 

elements that would become less 

sensitive over time, the amount of time 

after which they would no longer be 

sensitive, and the reason for the change 

in the sensitivity of the data elements. 

Although some commenters 

recommended that confidentiality 

determinations should be time limited, 

the commenters did not provide 

information that would provide 

sufficient basis for EPA to limit the 

determinations made in this action for 

any particular data elements to a 

specific period of time. Although a 

commenter suggested that the 

confidential treatment should expire 

after two years, the commenter did not 

provide any specific information on 

what changes in market conditions after 

this two year period would result in 

data no longer satisfying the criteria for 

confidential treatment. We note that 

other CBI determinations made by EPA 

are generally not time-limited. 

Furthermore, today’s amendment to 40 

CFR 2.301 (Special rules governing 

certain information obtained under the 

Clean Air Act) provides procedures for 

EPA to modify a prior confidentiality 

determination (see 40 CFR 2.301(d)(4)) 

should certain Part 98 data no longer be 

entitled to confidential treatment 

because of changes in the applicable law 

or newly discovered or changed facts. 

This provision reflects the requirements 

in CBI regulations at 40 CFR 2.205(h) for 

modifying prior determinations for 

other information. We do not see a need 

to establish a process different from that 

which we had proposed for 

declassifying CBI. 

B. Direct Emitters 

1. Major Changes to Determinations 

We are finalizing our category 

assignments for data elements in the 

direct emitter subparts specified in 

Section I.C of this preamble for 10 of the 

11 direct emitter data categories and our 

confidentiality determinations for these 

10 direct emitter data categories. As 

discussed in Section II.A.4 of this 

preamble, the confidentiality 

determinations for the data elements in 

the Inputs to Emission Equations 

category are not being finalized in this 

action. Further, as discussed in Section 

II.A.5 of this preamble, for the Unit/ 

Process Static Characteristics that are 

Not Inputs to Emission Equations and 

the Unit/Process Operating 

Characteristics categories that are Not 

Inputs to Emission Equations, EPA is 

making final confidentiality 

determinations for each data element 

within these categories, rather than 

finalizing the category-wide 

determinations proposed in the CBI 

proposals. 

The major changes since our CBI 

proposals to the 10 direct emitter data 

categories and the confidentiality 

determinations finalized in this action 

are summarized below. 

• We have assigned certain data 

elements for reporting process 

emissions (i.e., the amount of GHG 

generated by a production facility) at 40 

CFR 98.76(a) and (b)(1), 40 CFR 

98.166(a)(1) and (b)(1), and 40 CFR 

98.196(a) and (b)(1) as follows for the 

reasons specified in Section II.B.3 of 

this preamble: 

—For facilities that collect a portion of 

the CO2 for use on site or for shipment 

off site, the data elements for 

reporting process emissions are 

categorized in the Unit/Process 

Operating Characteristics that are Not 

used as Inputs to Emissions Equations 

data category. 

—For facilities that discharge all process 

emissions to the atmosphere, the data 

elements for reporting process 

emissions are categorized in the 

Emissions data category. 

• We have added seven new data 

elements to the Emissions category for 

the reasons specified in Section II.B.3 of 

this preamble. The data elements are as 

follows: 

—Annual emissions aggregated for all 

GHGs from all applicable source 

categories, expressed in metric tons of 

CO2e calculated using Equation A–1 

(reported under 40 CFR 98.3(c)(12)(i)). 

—Annual emissions of biogenic CO2, 

expressed in metric tons (excluding 

biogenic CO2 emissions from part 75 

units), aggregated for all applicable 

source categories (reported under 40 

CFR 98.3(c)(12)(ii)). 

—Annual emissions from each 

applicable source category, expressed 

in metric tons of biogenic CO2

(excluding biogenic CO2 emissions 

from part 75 units (reported under 40 

CFR 98.3(c)(12)(iii)(A)). 

—Annual emissions from each 

applicable source category, expressed 

in metric tons of CO2 (including 

biogenic CO2 emissions from 40 CFR 

part 75 units and excluding biogenic 

CO2 emissions from other non-part 75 

units and other source categories) 

(reported under 40 CFR 

98.3(c)(12)(iii)(B)). 

—Annual emissions from each 

applicable source category, expressed 

in metric tons of CH4 (reported under 

40 CFR 98.3(c)(12)(iii)(C)). 

—Annual emissions from each 

applicable source category, expressed 

in metric tons of N2O (reported under 

40 CFR 98.3(c)(12)(iii)(D)). 

—Annual emissions from each 

applicable source category, expressed 

in metric tons of each fluorinated 

GHG (including those not listed in 

Table A–1 to subpart A) (reported 

under 40 CFR 98.3(c)(12)(iii)(E)). 

• We have moved three data elements 

from the Inputs to Emission Equations 

category to the Emissions category for 

the reasons specified in Section II.B.3 of 

this preamble. The data elements are as 

follows: 

—Annual CO2 emissions from each wetprocess phosphoric acid process line 

(reported under 40 CFR 98.266(f)(2)). 

—Annual volumetric flow discharged to 

the atmosphere from each process 

vent (reported under 40 CFR 

98.256(l)(5)). 

—Annual average mole fraction of each 

GHG above the concentration 

threshold or otherwise required to be 

reported (reported under 40 CFR 

98.256(l)(5)). 

• We have added one new data 

element to the Calculation Methodology 

and Methodological Tier category for 

the reasons specified in Section II.B.4 of 

this preamble. This data element 

requires facilities to indicate whether 

the annual volume of flare gas 

combusted and the annual average 

higher heating value of the flare gas 

were determined using standard 

conditions of 68 °F and 14.7 psia or 60 

°F and 14.7 psia (reported under 40 CFR 

98.256(e)(8). 

• Although we proposed non-CBI 

determinations for the Unit/Process 

Static Characteristics that are Not Inputs 

to Emission Equations data category, we 

have made individual confidentiality 

determinations for data elements in this 

category in this final action. 

• We have decided not to make final 

confidentiality determinations for the 

following 21 elements in the Unit/ 

Process Static Characteristics that are 

Not Inputs to Emission Equations for the 

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reasons described in Sections II.B.6 of 

this preamble. These data elements are 

as follows: 

—The annual ferroalloy product 

production capacity (reported under 

40 CFR 98.116(a)). 

—The annual lead product production 

capacity reported by facilities using 

CEMS (reported under 40 CFR 

98.186(a)(2)). 

—The annual lead product production 

capacity for facilities not using CEMS 

(reported under 40 CFR 98.186(b)(3)). 

—The annual lead product production 

capacity for each smelting furnace 

reported by facilities not using CEMS 

(reported under 40 CFR 98.186(b)(3)). 

—The annual lime production capacity 

(reported under 40 CFR 

98.196(b)(15)). 

—The type of nitric acid process 

(reported under 40 CFR 98.226(k)). 

—The maximum rated throughput 

capacity of the catalytic cracking unit, 

traditional fluid coking, or catalytic 

reforming unit (reported under 40 

CFR 98.256(f)(3)). 

—The maximum rated throughput of the 

sulfur recovery plant (reported under 

40 CFR 98.256(h)(2)). 

—The maximum rated throughput of 

each coke calcining unit (reported 

under 40 CFR 98.256(i)(2)). 

—The annual phosphoric acid 

permitted production capacity 

(reported under 40 CFR 98.266(b)). 

—The annual phosphoric acid 

production capacity for each wetprocess phosphoric acid process line 

(reported under 40 CFR 98.266(f)(3)). 

—The annual production capacity of 

silicon carbide reported by facilities 

using CEMS (reported under 40 CFR 

98.286(a)(3)). 

—The annual production capacity of 

silicon carbide reported by facilities 

not using CEMS (reported under 40 

CFR 98.286(b)(3)). 

—The annual production capacity of 

soda ash for each manufacturing line 

reported by facilities using CEMS 

(reported under 40 CFR 98.296(a)(3)). 

—The annual production capacity of 

soda ash reported by facilities not 

using CEMS (reported under 40 CFR 

98.296(b)(4)). 

—The annual production capacity of 

titanium dioxide reported by facilities 

using CEMS (reported under 40 CFR 

98.316(a)(4)). 

—The annual production capacity of 

titanium dioxide for each production 

line reported by facilities not using 

CEMS (reported under 40 CFR 

98.316(b)(5)). 

—The description of the gas collection 

system at an underground coal mine 

(reported under 40 CFR 98.326(q)). 

—The annual zinc product production 

capacity reported by facilities using 

CEMS (reported under 40 CFR 

98.336(a)(1)). 

—The annual zinc product production 

capacity reported by facilities not 

using CEMS (reported under 40 CFR 

98.336(b)(2)). 

—The description and/or diagram of the 

industrial wastewater treatment 

system (reported under 40 CFR 

98.356(a)). 

• We have added one new data 

element to the Unit/Process Static 

Characteristics Not used as Inputs to 

Emission Equations category for the 

reasons specified in Section II.B.6 of 

this preamble. This data element 

requires municipal landfills to report a 

description of the aeration system used 

at their landfill, including aeration 

blower capacity (reported under 40 CFR 

98.346(d)(1)) and is determined to be 

non-CBI. 

• We have moved one data element 

from the Facility and Unit Identifier 

Information category to the Unit/Process 

Static Characteristics that are Not Inputs 

to Emission Equations data category and 

have made a determination that this 

data element is non-CBI for the reasons 

specified in Section II.B.6 of this 

preamble. This data element requires 

facilities to report the type of 

combustion unit (reported under 40 CFR 

98.36(b)(2)). 

• We have moved 13 data elements 

from Inputs to Emission Equations to 

the Unit/Process Static Characteristics 

that are Not Inputs to Emission 

Equations category and made the 

following determinations for the reasons 

specified in Section II.B.6. These data 

elements and the final determinations 

are as follows: 

—Number of abatement technologies 

used at adipic acid production plants 

(reported under 40 CFR 98.56(e)) is 

not CBI. 

—Number of cement kilns (reported 

under 40 CFR 98.86(b)(4)) is not CBI. 

—Total number of glass furnaces 

(reported under 40 CFR 98.146(b)(8)) 

is not CBI. 

—Total number of lead smelting 

furnaces (reported under 40 CFR 

98.186(b)(5)) is not CBI. 

—Number of nitric acid trains (reported 

under 40 CFR 98.226(f)) is not CBI. 

—Number of wet-process phosphoric 

acid lines (reported under 40 CFR 

98.266(f)(7)) is not CBI. 

—Number of separate chloride process 

lines located at titanium dioxide 

production facilities (reported under 

40 CFR 98.316(b)(14) is not CBI. 

—Number of Waelz kilns used for zinc 

production (reported under 40 CFR 

98.336(b)(4)) is not CBI. 

—Number of electrothermic furnaces 

used for zinc production (reported 

under 40 CFR 98.336(b)(5)) is not CBI. 

—Total number of delayed coking units 

(reported under 40 CFR 256(k)(3)) is 

not CBI. 

—The typical drum or vessel outage 

(reported under 40 CFR 98.256(k)(3)) 

is CBI. 

—The number of delayed coking drums 

or vessels (reported under 40 CFR 

98.256(k)(3)) is CBI. 

—The number of delayed coking drums 

in a set (reported under 40 CFR 

98.256(k)(4)) is CBI. 

• We have double listed five data 

elements in the Unit/Process Static 

Characteristics that are Not Inputs to 

Emission Equations category and in the 

Inputs to Emission Equations category. 

For those reporters who do not use the 

data elements in the specified 

equations, the data elements are in the 

Unit/Process Static Characteristics that 

are Not Inputs to Emission Equations. 

We have made the following 

determinations and for the reasons 

specified in Section II.B.6: 

—Number and type of each source of 

equipment leaks at petroleum 

refineries when reported by facilities 

not using Equation Y–21 to calculate 

emissions (reported under 40 CFR 

98.256(n)(3)) is not CBI. 

—Year in which a closed municipal 

landfill last accepted waste and year 

an open municipal landfill expects to 

close, where reported by landfills that 

do not use Equation HH–3 (reported 

under 40 CFR 98.346(a)) is not CBI. 

—Capacity of the municipal landfill, 

where reported by open landfills and 

by closed landfills that do not use 

Equation HH–3 (reported under 40 

CFR 98.346(a)) is not CBI. 

—Year in which a closed industrial 

landfill last accepted waste and year 

an open industrial landfills expects to 

close, where reported by landfills that 

do not use Equation TT–4 (reported 

under 40 CFR 98.466(a)(3)) is not CBI. 

—Capacity of the industrial landfill, 

where reported by open landfills and 

by closed landfills that do not use 

Equation TT–4 (reported under 40 

CFR 98.466(a)(4)) is not CBI. 

• Although we proposed a non-CBI 

determination for all data in the Unit/ 

Process Operating characteristics that 

are not Inputs to Emission Equations 

category, we have made individual 

confidentiality determinations for the 

data elements in this category in this 

final action. Specifically, we have 

determined that the following data 

elements in this category qualify as CBI 

as discussed in Section II.B.7 of this 

preamble: 

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—The reason for submitting a Best 

Available Monitoring Methods 

(BAMM) extension request (reported 

under 40 CFR 98.3(d)(2)(ii)(C)). 

—The reason why equipment was not or 

could not be obtained and installed 

during a planned shutdown between 

October 30, 2009 and April 1, 2010 as 

reported in a BAMM extension 

request (reported under 40 CFR 

98.3(d)(2)(ii)(E)). 

—Planned installation date for 

monitoring equipment as reported in 

a BAMM extension request (reported 

under 40 CFR 98.3(d)(2)(ii)(F)). 

—The anticipated date on which a 

facility applying for a BAMM 

extension will begin using the 

monitoring methods specified in Part 

98 (reported under 40 CFR 

98.3(d)(2)(ii)(F)). 

—The sampling analysis results of 

carbon content of feedstock as 

determined from QA/QC supplier 

data under 40 CFR 98.74(e) by 

ammonia manufacturing facilities 

(reported under 40 CFR 98.76(b)(6)). 

—The mass fraction of each sample 

analyzed for all tests used to verify 

the carbonate-based mineral mass 

fraction of raw materials charged to 

glass manufacturing facilities 

(reported under 40 CFR 

98.146(b)(5)(iii)). 

—The explanation of change greater 

than 30 percent in a magnesium 

production facility’s cover gas usage 

rate (reported under 40 CFR 

98.206(g)). 

—The types of materials loaded that 

have an equilibrium vapor phase 

concentration of CH4 of 0.5 volume 

per cent or greater (reported under 40 

CFR 98.256(p)(2). 

—The sampling analysis results for 

carbon content of petroleum coke 

consumed by a silicon carbide 

production facility as determined for 

QA/QC of data provided by raw 

material suppliers (reported under 40 

CFR 98.286(b)(7)). 

—The sampling analysis results of 

carbon content of petroleum coke 

consumed by titanium dioxide 

production facilities for QA/QC of 

data provided by raw material 

suppliers (reported under 40 CFR 

98.316(b)(13)). 

• We have added the following four 

new data elements to the Unit/Process 

Operating Characteristics that are Not 

Inputs to Emission Equations category 

and have also determined that these 

data elements are not CBI for the 

reasons specified in Section II.B.7 of 

this preamble. The data elements are as 

follows: 

—Indication of whether active aeration 

of the waste in the landfill was 

conducted during the reporting year 

(reported under 40 CFR 98.346(d)(1)). 

—Fraction of the landfill containing 

waste affected by the aeration 

(reported under 40 CFR 98.346(d)(1)). 

—Total number of hours during the year 

the aeration blower was operated 

(reported under 40 CFR 98.346(d)(1)). 

—Other factors used as a basis for the 

selected methane correction factor 

(MCF) value (reported under 40 CFR 

98.346(d)(1)). 

• We have moved 37 data elements 

from the Inputs to Emission Equations 

category to the Unit/Process Operating 

Characteristics that are Not Inputs to 

Emission Equations category for the 

reasons specified in Section II.B.7 of 

this preamble. A list of these data 

elements is provided in the 

memorandum ‘‘Final Data Category 

Assignments and Confidentiality 

Determinations for Part 98 Reporting 

Elements’’ (see Docket EPA–HQ–OAR– 

2009–0924 and the Web site (http:// 

www.epa.gov/climatechange/emissions/ 

ghgrulemaking.html). We have 

determined that the following data 

elements are CBI: 

—Annual average value of the inlet air 

flow rate reported by refineries (40 

CFR 98.256(f)(8)). 

—Annual average value of oxygenenriched air flow rate reported by 

refineries (40 CFR 98.256(f)(8)). 

—The average annual value of %Ooxy

reported by refineries (40 CFR 

98.256(f)(8)). 

—Annual average value of the inlet air 

flow rate reported by refineries 

(reported under 40 CFR 98.256(f)(9)). 

—Annual average value of oxygenenriched air flow rate reported by 

refineries (reported under 40 CFR 

98.256(f)(9)). 

—Annual average value of %N2oxy

reported by refineries (reported under 

40 CFR 98.256(f)(9)). 

—Number of regeneration cycles or 

measurement periods during the 

reporting year for each catalytic 

cracking unit, traditional fluid coking 

unit, and catalytic reforming unit 

reported by refineries (reported under 

40 CFR 98.256(f)(13)). 

—Average coke burn-off quantity per 

cycle or measurement period for each 

catalytic cracking units, traditional 

fluid coking units, and catalytic 

reforming units reported by refineries 

(reported under 40 CFR 98.256(f)(13)). 

• We have decided not to make final 

confidentiality determinations for the 

following seven data elements in the 

Unit/Process Operating Characteristics 

that are Not Inputs to Emission 

Equations for the reasons described in 

Sections II.B.6 of this preamble. These 

data elements are as follows: 

—Annual average value of the exhaust 

gas flow rate reported by refineries (40 

CFR 98.256(f)(7)). 

—Annual average value of %CO2

reported by refineries (40 CFR 

98.256(f)(7)). 

—Annual average value of %CO 

reported by refineries (40 CFR 

98.256(f)(7)). 

—Annual average value of %O2

reported by refineries (40 CFR 

98.256(f)(8)). 

—Annual average value of %CO2

reported by refineries (40 CFR 

98.256(f)(8)). 

—Annual average value of %CO 

reported by refineries (40 CFR 

98.256(f)(8)). 

—Annual average value of %N2 exhaust 

reported by refineries (reported under 

40 CFR 98.256(f)(9)). 

• We have double listed six data 

elements in the Unit/Process Operating 

Characteristics that are Not Inputs to 

Emission Equations category and in the 

Inputs to Emission Equations category. 

For those reporters who do not use the 

data elements in the specified 

equations, the data elements are in the 

Unit/Process Operating Characteristics 

that are Not Inputs to Emission 

Equations and have the following 

determinations for the reasons specified 

in Section II.B.7 of this preamble: 

—Annual volume of recycled tail gas (if 

not used to calculate the recycling 

correction factor (reported under 40 

CFR 98.256(h)(5)) is CBI. 

—Annual average mole fraction of 

carbon in the tail gas (if not used to 

calculate recycling correction factor) 

(reported under 40 CFR 98.256(h)(5)) 

is CBI. 

—Weekly average temperature at which 

flow is measured for biogas collected 

for destruction (if using daily 

sampling) (reported under 40 CFR 

356(d)(4)) is not CBI. 

—Weekly average moisture content for 

each week at which flow is measured 

for biogas collected for destruction (if 

using daily sampling) (reported under 

40 CFR 356(d)(5)) is not CBI. 

—Weekly average pressure for each 

week at which flow is measured for 

biogas collected for destruction (if 

using daily sampling) (reported under 

40 CFR 98.356(d)(6)) is not CBI. 

—Surface area at the start of the 

reporting year for the landfill sections 

that contain waste and that are 

associated with the selected cover 

type for facilities that do not use a 

landfill gas collection system 

(reported under 40 CFR 98.466(e)(2)) 

is not CBI. 

• We have moved seven data 

elements from the Calculation 

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Methodology and Methodological Tier 

category to the Test and Calibration 

Methods category for the reasons 

specified in Section II.B.8 of this 

preamble: 

—The basis for the unit-specific factor 

(i.e., select from average of multiple 

source tests; single source test within 

last 5 years; single source test more 

than 5 years ago; source test of 

identical unit at same facility) (40 

CFR 98.256(i)(8)). 

—The basis for the CO2 emission factor 

used in Equation Y–16b (40 CFR 

98.256(j)(8)). 

—The basis for the carbon emission 

factor used in Equation Y–16b (40 

CFR 98.256(j)(8)). 

—Indication of the measurement or 

estimation method used for measuring 

volumetric flow discharge for each 

process vent (40 CFR 98.256(l)(5)). 

—Indication of the measurement or 

estimation method used for measuring 

average mole fraction of each GHG for 

each process vent (40 CFR 

98.256(l)(5)). 

—The basis for the CH4 emission factor 

used (i.e., select from weekly or more 

often measurements; Periodic (less 

frequent than weekly) measurements; 

average of multiple source tests; onetime source test; default factor) for 

uncontrolled blowdown systems (40 

CFR 98.256(m)(3)). 

—Basis for the mole fraction of CH4 in 

the vent gas from the unstabilized 

crude oil storage tank (i.e., 

measurement of methane 

composition; engineering estimate of 

methane composition based on crude 

composition; default) for storage tanks 

that process unstabilized crude oil (40 

CFR 98.256(o)(4)(vi)). 

• We have moved two data elements 

from the Inputs to Emission Equations 

category to the Test and Calibration 

Methods category for the reasons 

specified in Section II.B.8 of this 

preamble: 

—Date of measurement of the 

volumetric flow rate for each 

ventilation monitoring point (40 CFR 

98.326(f)). 

—Date of measurement of methane 

concentration for each ventilation 

monitoring point (40 CFR 98.326(g)). 

• We have moved three data elements 

from the Inputs to Emission Equations 

category to the Production/Throughput 

Data that are Not Inputs to Emission 

Equations for the reasons specified in 

Section II.B.9 of this preamble: 

—Annual quantity of petrochemicals 

produced (40 CFR 98.246(a)(5)). 

—Volume or mass of off-specification 

product produced (40 CFR 

98.246(a)(9)). 

—Monthly production of titanium 

dioxide for each production process 

(40 CFR 98.316(b)(8)). 

• We have double listed two data 

elements in the Production/Throughput 

Data that are Not Inputs to Emission 

Equations and in the Inputs to Emission 

Equations category. For those reporters 

who do not use the data elements in the 

specified equations, the data elements 

are in the Production/Throughput Data 

that are Not Inputs to Emission 

Equations and have the following 

determinations for the reasons specified 

in Section II.B.9 of this preamble: 

—Cumulative volumetric biogas flow for 

each week that biogas is collected for 

destruction reported by wastewater 

treatment facilities using daily 

sampling (40 CFR 98.356(d)(2)). 

—Weekly average CH4 concentration for 

each week that biogas is collected for 

destruction reported by wastewater 

treatment facilities using daily 

sampling (40 CFR 98.356(d)(3)). 

• Although we had proposed that the 

data element that requires reporting of 

the annual quantity of CO2 captured for 

use on site (40 CFR 98.196(b)(17)(i)) to 

be in the Unit/Process Operating 

Characteristics that are Not used as 

Inputs to Emissions Equations Data 

category, we have moved this data 

element to the Production/Throughput 

Data that are Not Inputs to Emission 

Equations Data category for the reasons 

specified in Section II.B.9 of this 

preamble. 

The rationale for these changes can be 

found in Sections II.B.2 through II.B.10 

of this preamble and in the ‘‘Proposed 

Confidentiality Determinations and Data 

Handling Procedures for Part 98 Data: 

Responses to Public Comments’’ 

(available in the Docket EPA–HQ–OAR– 

2009–0924 and on the Web site 

(http://www.epa.gov/climatechange/ 

emissions/ghgrulemaking.html). 

A list of all the direct emitter data 

elements and their category assignment 

under this final action is provided, by 

subpart and data category, in a 

memorandum (see ‘‘Final Data Category 

Assignments and Confidentiality 

Determinations for Part 98 Reporting 

Elements’’ in Docket EPA–HQ–OAR– 

2009–0924) and on the Web site 

(http://www.epa.gov/climatechange/ 

emissions/ghgrulemaking.html). 

2. Facility and Unit Identifier 

Information Category 

Comment: Only a few commenters 

submitted comments on this data 

category. The majority of those 

providing comments agreed with EPA’s 

proposed determination that the data 

elements in this category are not eligible 

for confidential treatment because they 

meet the definition of emission data in 

40 CFR 2.301(a)(2)(i). One commenter 

agreed with EPA’s determination that 

the phrase ‘‘identity * * * of any 

emission’’ in 40 CFR 2.301(a)(2)(i)(A) 

refers not only to the names of the 

pollutants being emitted, but also 

includes other identifying information, 

such as plant name, address, city, state, 

zip code, emission point or device 

description, and North American 

Industry Classification System (NAICS) 

code. 

Although most commenters agreed 

with the proposed determination for 

this category, one commenter stated that 

the customer meter number and 

combustion unit identifiers reported in 

accordance with 40 CFR 98.36(c)(1) and 

(c)(3) should be held as confidential. 

Response: The few commenters who 

disagreed with our proposed 

determination for this data category did 

not provide any rationale or facts 

explaining why the data in this category 

do not meet the definition of emission 

data at 40 CFR 2.301(a)(2)(i), as we 

proposed in the July CBI proposal. 

Rather, they claimed that the data 

elements in this category are sensitive 

and therefore, qualify as CBI. However, 

CAA section 114(c) does not afford 

confidential treatment to emission data, 

even if they were CBI. In any case, 

except for the comments discussed 

below on certain specific data elements, 

the commenters made general and 

conclusory CBI claims; they did not 

provide facts or rationales explaining 

why any of the data elements in this 

category are CBI. On the other hand, we 

note that many of the data elements 

assigned to the category are already 

available to the public through other 

sources. For example, the name and 

location of a facility and descriptions of 

emission units are included in 

construction and operating permits (e.g., 

PSD and Title V permits). 

With respect to the specific comment 

on the customer meter number and 

combustion unit identifiers that were 

required under 40 CFR 98.36(c)(1) and 

(c)(3) at the time of CBI proposal, these 

data elements are no longer required to 

be reported under 40 CFR part 98, 

subpart C (see the amendments to this 

subpart published in 75 FR 79092, 

December 17, 2010). Therefore, 

according to the comment, there is no 

CBI concern. 

3. Emissions Category 

New Data Elements: In this final 

action, we have added the following 

seven new data elements to this data 

category: 

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5 40 CFR part 98, subpart G (Ammonia 

Manufacturing), subpart P (Hydrogen Production), 

and subpart S (Lime Manufacturing). 

6Please see Section II.B.8 for the discussion on 

the confidentiality determination for these data 

elements. 

• Annual emissions aggregated for all 

GHGs from all applicable source 

categories, expressed in metric tons of 

CO2e calculated using Equation A–1 

(reported under 40 CFR 98.3(c)(12)(i)). 

• Annual emissions of biogenic CO2, 

expressed in metric tons (excluding 

biogenic CO2 emissions from part 75 

units), aggregated for all applicable 

source categories (reported under 40 

CFR 98.3(c)(12)(ii)). 

• Annual emissions from each 

applicable source category, expressed in 

metric tons of biogenic CO2 (excluding 

biogenic CO2 emissions from 40 CFR 

part 75 units (reported under 40 CFR 

98.3(c)(12)(iii)(A)). 

• Annual emissions from each 

applicable source category, expressed in 

metric tons of CO2 (including biogenic 

CO2 emissions from 40 CFR part 75 

units and excluding biogenic CO2

emissions from other non-part 75 units 

and other source categories) (reported 

under 40 CFR 98.3(c)(12)(iii)(B)). 

• Annual emissions from each 

applicable source category, expressed in 

metric tons of CH4 (reported under 40 

CFR 98.3(c)(12)(iii)(C)). 

• Annual emissions from each 

applicable source category, expressed in 

metric tons of N2O (reported under 40 

CFR 98.3(c)(12)(iii)(D)). 

• Annual emissions from each 

applicable source category, expressed in 

metric tons of each fluorinated GHG 

(including those not listed in Table A– 

1 of subpart A) (reported under 40 CFR 

98.3(c)(12)(iii)(E)). 

These new data elements were added 

to subpart A by the amendments 

published on December 17, 2010 (75 FR 

79092) and were not included in the 

July 2010 CBI proposals. The new data 

elements require the reporting of GHG 

emissions data for combustion units, 

which are the same type of data as all 

the other data elements in the Emissions 

category. Because the CBI proposals 

addressed the same type of data 

elements, we do not see a need to 

propose confidentiality determination 

for these new data elements before 

taking final action. We conclude that it 

is appropriate to include these seven 

data elements in this data category and 

finalize their confidentiality 

determinations as part of this data 

category in this action. 

Moved Data Elements: In this final 

action, we have moved the following 

data elements to the Emissions category 

from the Inputs to Emission Equations 

category: 

• Annual CO2 emissions from each 

wet-process phosphoric acid process 

line (reported under 40 CFR 

98.266(f)(2)). 

• Annual volumetric flow discharged 

to the atmosphere from each process 

vent (reported under 40 CFR 

98.256(l)(5)). 

• Annual average mole fraction of 

each GHG above the concentration 

threshold or otherwise required to be 

reported (reported under 40 CFR 

98.256(l)(5)). 

These data elements require the 

reporting of GHG emissions or 

information about the rate or 

concentration of GHG emissions into the 

atmosphere from phosphoric acid 

manufacturing plants and process vents 

at petroleum refineries. These data 

elements were inadvertently placed in 

the Inputs to Emission Equations 

category in the July 7, 2010 CBI 

proposal and have been moved to this 

category because they are the same type 

of data (i.e. information regarding the 

quantity and characteristics of GHG 

emissions) as all the other data elements 

in the Emissions category. Because these 

data elements are the same type of data 

as the other elements in this category, 

we have concluded that the emission 

data determination applied to this 

category also applies to these three data 

elements and finalize this determination 

in this action. 

Comment: In the July 7, 2010 CBI 

proposal, EPA proposed that the data 

elements in this data category would not 

be eligible for confidential treatment 

because they met the definition of 

emission data in 40 CFR 2.301(a)(2)(i). 

Most commenters agreed with this 

proposed determination. Some 

commenters noted that this type of 

information is often reported to EPA 

and State and local agencies by facilities 

as part of compliance certification and 

deviation reports and is made available 

to the public in annual emission 

inventories. Some commenters noted 

that information about emissions is not 

sensitive, and others argued that 

disclosure of GHG emissions is critical 

to furthering public understanding of 

the sources of GHG emissions and to 

enabling stakeholder participation in 

the critique and analysis of any future 

GHG rulemaking. 

Although many commenters 

supported the disclosure of GHG 

emission data and agreed that these data 

meet the definition of emission data, 

some commenters expressed concern 

that the disclosure of emissions data for 

individual process lines or units would 

cause competitive harm to their 

businesses. These commenters were 

concerned that emissions information 

could be used to calculate other data 

they consider to be sensitive and would 

harm their competitive position. For 

example, some commenters 

recommended that the annual CO2

process emissions for units should be 

held as confidential because they 

claimed that it may be used to 

determine sensitive information about 

manufacturing capacities and material 

throughouts. 

A few commenters noted that some 

data elements included in this data 

category do not meet the definition of 

emission data because some of the CO2

generated by a process are collected and 

therefore, not emitted to the 

atmosphere. In particular, these 

commenters noted that the annual CO2

process emissions reported by ammonia 

production plants (see 40 CFR 

98.76(b)(1)) may include CO2 that is not 

released to the atmosphere because 

some ammonia plants collect CO2 for 

use in other processes (e.g., production 

of urea). Some commenters 

recommended that process emissions 

should be held confidential because 

such data might be used to determine 

sensitive information about 

manufacturing capacities and material 

throughput. 

Response: EPA learned from some 

commenters that in certain situations 

some of the CO2 generated by a process 

are collected and either used onsite 

(e.g., urea manufacture) or transferred 

off site. In three subparts,5 the CO2 that 

is collected is reported as ‘‘CO2 process 

emissions.’’ In those few situations 

where a reporter collects a portion of the 

CO2 generated by a process, EPA agrees 

that the following data elements 40 CFR 

98.76(a) and(b)(1), 40 CFR 98.166(a) and 

(b)(1), and 40 CFR 98.196(a) and (b)(1) 

do not reflect the emissions ‘‘which has 

been emitted by the source’’ and 

therefore do not meet the definition of 

emission data in 40 CFR 2.301(a)(2)(i). 

In these limited situations, the data 

element is assigned in this final action 

to the data category Unit/Process 

Operating Characteristics that are Not 

Inputs to Emission Equations and is 

determined to be non-CBI.6 However, 

for those facilities where a reporter does 

not collect the CO2 generated by a 

process such that the CO2 is emitted 

into the atmosphere, the data element 

remains in the Emissions Data Category. 

As described above, some 

commenters expressed concern with our 

proposed determination, because they 

claimed that some of the data elements 

in this category are sensitive business 

information the disclosure of which 

could cause competitive business harm. 

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However, these commenters did not 

provide any rationale or facts explaining 

why the data in this category do not 

meet the definition of emission data at 

40 CFR 2.301(a)(2)(i), as we proposed in 

the July CBI proposal. Rather, they 

claimed that the data elements in this 

category are sensitive and therefore, 

qualify as CBI. However, CAA section 

114(c) does not afford confidential 

treatment to emission data, even if they 

were sensitive. On the other hand, we 

note that data elements similar to the 

data elements included in this category 

are available to the public through other 

sources. For example, unit level 

emissions of certain pollutants are 

available through the National 

Emissions Inventory. We therefore 

conclude that our proposed 

determination for this data category is 

appropriate and finalize that 

determination in this action. 

4. Calculation Methodology and 

Methodological Tier Category 

New Data Elements: EPA has added 

one new data element to this data 

category. This new data element 

requires refineries to indicate whether 

the annual volume of flare gas 

combusted and the annual average 

higher heating value of the flare gas 

were determined using standard 

conditions of 68 °F and 14.7 psia or the 

alternative conditions of 60 °F and 14.7 

psia (reported under 40 CFR 

98.256(e)(8)). This data element is used 

to determine which of the two possible 

values of the molar volume conversion 

factor should be used as an input to the 

emission equation and therefore is used 

to determine the correct methodology 

for calculating emissions. Although this 

new data element was added to Part 98 

after the July 2010 CBI proposals and 

therefore not included in the CBI 

proposals (see 75 FR 79092, December 

17, 2010), it is the same in type and 

characteristics to other data elements 

assigned to this category and for which 

confidentiality determination was 

proposed in the CBI proposals (e.g., 

temperature at which gaseous feedstock 

and volumes were determined (reported 

under 40 CFR 98.246(a)(4) and type of 

fuel combusted (reported under 40 CFR 

98.36(b)(4)). Because the CBI proposals 

addressed the same type of data 

elements, we do not see a need to 

propose confidentiality determination 

for this new data element before taking 

final action. We therefore conclude that 

it is appropriate to assign this data 

element to this data category and 

finalize its confidentiality determination 

as part of this data category in this 

action. 

Comment: In the July 7, 2010 CBI 

proposal, EPA proposed that the data in 

this category meet the definition of 

emission data at 40 CFR 2.301(a)(2)(i) 

and therefore, are not eligible for 

confidential treatment. Several 

commenters agreed that the data 

elements in this data category are not 

entitled to confidential treatment. Some 

commenters stated that the information 

was not sensitive or proprietary. One 

commenter noted that this type of 

information is provided in compliance 

certifications under other regulations. 

However, other commenters disagreed 

with EPA’s proposed determination for 

this data category. Some commenters 

stated that the methodology used by a 

reporting facility to calculate its GHG 

emissions was sensitive and should be 

considered confidential. Others believed 

that the capacity of a combustion unit 

(reported under 40 CFR part 98, subpart 

C and used to determine the appropriate 

Tier for calculating CO2, N2O and CH4

emissions from combustion units) can 

be used by competitors to assess 

production capabilities and derive 

market strategies that would cause 

competitive harm to the reporter if 

disclosed to the public. Some 

commenters stated that the type of fuel 

used (reported under 40 CFR part 98, 

subpart C and used to determine the 

appropriate Tier for calculating CO2, 

N2O and CH4 emissions from 

combustion units) is proprietary 

information that could be used to 

determine cost structure. One 

commenter stated that some facilities 

use unconventional fuels in their 

process and that the use of these fuels 

is not known by their competitors. This 

commenter argued that the use of these 

unconventional fuels represents a key 

competitive advantage for such facilities 

and should be considered CBI. 

One commenter stated that certain 

data reported under 40 CFR part 98, 

subpart TT (Industrial landfills), 

including the types of materials in each 

waste stream and the method for 

estimating historical waste disposal 

quantities would allow a competitor to 

determine process-specific information, 

such as production quantities, that 

would be harmful to the competitive 

position of reporters. 

Response: As described in Section 

II.C.5 of the preamble to the July 7, 2010 

CBI proposal, the data elements in the 

Calculation Methodology and 

Methodological Tier category consist of 

the methodology and other information, 

such as unit capacity and fuel type, that 

are necessary to determine that the 

emissions were calculated using an 

appropriate methodology. EPA therefore 

proposed to determine that the data 

elements in this category meet the 

definition of emission data at 40 CFR 

2.301(a)(2)(i). Although some 

commenters argued that the data 

elements in this category are sensitive, 

none claimed nor provided information 

that these data elements do not meet the 

definition of emission data in 40 CFR 

2.301(a)(2)(i). 

Further, the type of fuel required to be 

reported is generic information that 

would not reveal specific information 

about the composition of the fuel. For 

example, a facility that burns waste 

process gases from a manufacturing 

process is required to report only that 

they combust ‘‘off-gas.’’ Similarly, the 

maximum capacity of a combustion unit 

is already publicly available from other 

sources (e.g., Title V permits). Further, 

we disagree with the commenter who 

stated that the types of materials in each 

waste stream and the method for 

estimating historical waste disposal 

quantities reported under 40 CFR part 

98, subpart TT (Industrial Landfills) are 

sensitive or proprietary. To estimate the 

historical amount of waste sent to an 

industrial landfill, facilities select one of 

the methods specified in the rule. The 

methods include direct measurement of 

the waste and an alternative estimation 

method for use by reporters who do not 

have measurement records of the waste 

disposed. The method used by the 

reporter does not disclose any 

information about the design or 

operating characteristics of production 

processes, historical production 

volumes, or any other productionrelated information. For the types of 

materials in each waste stream, facilities 

select from the generic list of waste 

types specified in the rule under Table 

TT–1, an approach that does not reveal 

any proprietary or sensitive information 

about a process. 

5. Data Elements Reported for Periods of 

Missing Data That Are Not Inputs to 

Emission Equations Category 

Comment: Many commenters on this 

data category agreed with EPA’s 

proposed determination that the data 

elements meet the definition of 

emission data in 40 CFR 2.301(a)(2)(i) 

and therefore do not qualify for 

confidential treatment. One commenter 

stated that the data elements in this 

category should be public because poor 

equipment operation, failure to collect 

required data, and other factors 

undermine the availability of accurate 

and complete emissions data. Other 

commenters agreed that the method 

used to calculate substitute values 

should be publicly available and noted 

that protocols for determining substitute 

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7For those reporters who do not use the data 

elements in the equations specified in Section II.B.1 

of this preamble, the data elements are in the Unit/ 

Process Static Characteristics that are Not Inputs to 

Emission Equations. 

values are often included in State and 

local regulations. 

However, other commenters argued 

that the method used to estimate the 

missing data constitutes sensitive 

business information, while others 

asserted that the time period over which 

data is missing is sensitive. Another 

commenter stated that detailed 

discussions of what data were missing, 

why they were missing, and how a 

facility generated substitute values 

provide insight into a facility’s 

underlying process operations and 

therefore should be handled as CBI. 

Response: Although some 

commenters disagreed with EPA’s 

proposed determination that the data 

elements in this data category are 

emission data, none of the commenters 

provided rationale for how the data in 

this category does not meet the 

definition of emission data or any 

information to refute or alter EPA’s 

assessment that the data elements in 

this category are needed to determine 

whether a reasonable methodology was 

used to determine substitute values, and 

whether the annual GHG emissions are 

correctly calculated, thus qualifying 

these data as emission data under 40 

CFR 2.301(a)(2)(i). This data 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, reasons for using substitute 

values, and the method used to 

determine a substitute value. For 

reasons described above and in Section 

II.C.6 of the proposal preamble (75 FR 

39094, July 7, 2010), EPA has 

determined in this final action, that 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)(2)(i). 

6. Unit/Process Static Characteristics 

That Are Not Inputs to Emissions 

Equations Category 

New Data Elements: EPA has added 

one new data element to this data 

category. This data element requires 

municipal landfills to report a 

description of the aeration systems used 

at their landfills, including the aeration 

blower capacity (reported under 40 CFR 

98.346(d)(1)). This new data element 

was added to subpart HH by the 

amendments published on October 28, 

2010 (75 FR 66434) and was not 

included in the July 2010 CBI proposals. 

This data element is the same type of 

data as other data elements included in 

this category in the CBI proposals (e.g., 

description of the landfill gas collection 

system (reported under 40 CFR 

98.346(i)(7)). For the same reasons set 

forth below and in Section II.C.7 of the 

July 7, 2010 CBI proposal (see 75 FR 

39111) for the same types of data in this 

category, we have determined that this 

data element is not CBI. Specifically, 

this data element would provide only 

general, non-sensitive, information (e.g., 

such as the blower capacity for aeration 

system); such general information 

would not reveal the mechanics or any 

innovative aspects of the system’s 

design and operation that might be 

considered as trade secret or CBI. 

Moved and Double-Listed Data 

Elements: EPA reassigned one data 

element from the Facility and Unit 

Identifier Information category and 13 

data elements from the Inputs to 

Emission Equations category to this data 

category. EPA has also double-listed 7

five data elements in both the Inputs to 

Emission Equations category and this 

category. These data elements are listed 

in Section II.B.1 of this preamble and 

share the same characteristics as those 

data elements previously assigned to the 

Unit/Process Static Characteristics that 

are not Inputs to Emission Equations 

category in the July 2010 CBI proposals. 

Specifically, they consist of operating 

characteristics that do not change over 

time that are not used as inputs to 

emission equations. As with other data 

elements in this category, none of the 19 

data elements added to this data 

category meet the definition of emission 

data at 40 CFR 2.301(a)(2)(i)(A) because 

they are not ‘‘* * * 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 

***’’ As explained in more detail 

below, in response to comments, EPA 

re-evaluated the data elements in this 

data category and concluded that the 

proposed categorical determination of 

non-CBI may not be appropriate for all 

the data elements in this category. Based 

on the comments and EPA’s reevaluation, EPA concluded that three of 

the 19 data elements moved to this data 

category are entitled to confidential 

treatment. The three data elements 

determined to be CBI in this action are: 

• The typical drum or vessel outage 

(40 CFR 98.256(k)(3)); 

• The total number of delayed coking 

drums or vessels (40 CFR 98.256(k)(3)); 

and 

• The number of delayed coking 

drums in the set (40 CFR 98.256(k)(4)). 

These data elements can be used by 

competitors to determine the actual raw 

material input to a delayed coking unit 

and would provide insight into 

innovative operating practices that are 

considered sensitive by the reporter 

because they provide the reporter with 

a competitive advantage over other 

refineries. For example, changes in 

operating practices can produce 

increases in production capacity 

without adding new drums/vessels. 

Further, comments from refineries 

indicate that they consider these data 

elements to be sensitive and take 

precautions to ensure this information is 

not made public. We are also not aware 

of any public sources for these data 

elements. For the reasons described 

above, we conclude that these three data 

elements are CBI. 

With respect to the remaining 16 data 

elements that are reassigned to this data 

category, most include the number of 

emission units, production lines, or 

abatement devices (e.g., number of 

cement kilns reported by facilities not 

using CEMS, number of nitric acid 

trains) or descriptions of the units (see 

Section II.B.1 of this preamble for the 

list of reassigned data elements). They 

also include the year in which a landfill 

closed (reported under 40 CFR 98.346(a) 

by closed municipal landfills that do 

not use Equation HH–3 to calculate 

emissions and 40 CFR 98.466(a)(3) by 

closed industrial landfills not using 

Equation TT–4), an estimate of the year 

in which an open landfill expects to 

close (reported under 40 CFR 98.346(a) 

by open municipal landfills and 40 CFR 

98.466(a)(3) by open industrial 

landfills), capacity of municipal and 

industrial landfills (reported under 40 

CFR 98.346(a) by closed municipal 

landfills not using Equation HH–3 and 

by all open municipal landfills; and 40 

CFR 98.466(a)(4) by closed industrial 

landfills not using Equation TT–4 to 

calculate emissions and by all open 

industrial landfills). These data 

elements have been moved to this 

category because they are the same type 

of data as many other data elements 

already assigned to this data category 

(e.g., number of cement kilns reported 

by facilities using CEMS, reported under 

40 CFR 98.86(a)(3)). For the reasons 

discussed in more detail in Section 

II.C.7 of the July 7, 2010 CBI proposal 

(see 75 FR 39111), EPA has concluded 

the disclosure of these data elements is 

unlikely to cause competitive harm. 

These data elements do not provide 

insight into current production rates, 

raw material consumption, or other 

information that competitors could use 

to discern market share and other 

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sensitive information. The number of 

production units and control devices, 

general information regarding the type 

of combustion unit (e.g., whether the 

unit is a boiler, flare, internal 

combustion engine, process heater, etc.), 

the design capacity of a landfill, and 

dates of closure or expected closure 

constitute general information that is 

already available to the public through 

other sources (e.g., Title V operating 

permits). Although only general 

information regarding the type of 

combustion unit is available in permits, 

detailed information on the type of 

combustion devices is available from 

other public sources, (e.g., National 

Emissions Inventory). 

Comment: This data category 

primarily includes information about 

the number and capacity of process 

lines and production units, though it 

also includes a few unique data 

elements that require reporting of the 

specific type of unit or descriptions of 

processes. Some commenters agreed 

with EPA’s determination that the data 

in this category is not CBI because it is 

either already available to the public 

through other sources (e.g., Title V 

permits, NEI) or is not likely to cause 

competitive harm if made available. 

However, several commenters expressed 

concern that competitors could use 

some data elements in this category 

(e.g., number and capacity of production 

units/process lines), in combination 

with other data to infer information 

about individual facilities, potentially 

causing reporters competitive harm. In 

particular, some commenters were 

concerned that capacity information, 

such as the annual capacity of process 

line or production unit, could be used 

to determine whether a competitor has 

available capacity to expand production 

to meet increased market demand. 

These commenters argued that a 

competitor could use this information, 

in combination with actual production 

data, to develop market strategies that 

would be harmful to a reporter. Some 

commenters recommended that EPA 

allow reporters to make individual caseby-case CBI claims for data elements in 

this data category. 

Response: The commenters raised a 

concern that the proposed non-CBI 

determination may not be appropriate 

for certain data elements in this 

category. Note that EPA did not receive 

comments specific to the data elements 

in this category objecting to our 

proposed determination that the data 

elements in this category do not meet 

the definition of emission data because 

none of the data elements are inputs to 

equations/calculation methods or 

information otherwise needed to 

calculate or determine emissions. We 

therefore conclude that the proposed 

determination was appropriate in this 

regard and finalize in this action our 

determination that the data elements in 

this category are not emission data 

under 40 CFR 2.301(a)(2)(i). 

In response to the comments that a 

non-CBI determination for this category 

was not appropriate, EPA decided to reevaluate each data element assigned to 

this data category to determine if the 

proposed determination applies. As part 

of this process, EPA reviewed public 

comments regarding specific data 

elements, conducted additional reviews 

of alternative public sources (e.g., Title 

V permits, NEI databases) and reevaluated whether public availability of 

each data element would be likely to 

cause harm to the competitive position 

of the reporter. Through this process, we 

have determined that only three of the 

data elements assigned to the Unit/ 

Process Static Characteristics category 

are eligible for confidential treatment. 

• The typical drum or vessel outage 

(40 CFR 98.256(k)(3)); 

• The total number of delayed coking 

drums or vessels (40 CFR 98.256(k)(3)); 

and 

• The number of delayed coking 

drums in the set (40 CFR 98.256(k)(4)). 

These three data elements were added 

to this category in this final action. For 

the explanation of why these data 

elements are determined to be CBI, 

please see the discussion of moved and 

double-listed data elements listed above 

for Section II.B.6. 

Based on our review, EPA has 

decided not to make a final 

determination for the following 21 data 

elements in this data category: 

• The annual ferroalloy product 

production capacity (reported under 40 

CFR 98.116(a)). 

• The annual lead product 

production capacity reported by 

facilities using CEMS (reported under 

40 CFR 98.186(a)(2)). 

• The annual lead product 

production capacity for facilities not 

using CEMS (reported under 40 CFR 

98.186(b)(3)). 

• The annual lead product 

production capacity for each smelting 

furnace reported by facilities not using 

CEMS (reported under 40 CFR 

98.186(b)(3)). 

• The annual lime production 

capacity (reported under 40 CFR 

98.196(b)(15)). 

• The type of nitric acid process 

(reported under 40 CFR 98.226(k)). 

• The maximum rated throughput 

capacity of the catalytic cracking unit, 

traditional fluid coking, or catalytic 

reforming unit (reported under 40 CFR 

98.256(f)(3)). 

• The maximum rated throughput of 

the sulfur recovery plant (reported 

under 40 CFR 98.256(h)(2)). 

• The maximum rated throughput of 

each coke calcining unit (reported under 

40 CFR 98.256(i)(2)). 

• The annual phosphoric acid 

permitted production capacity (reported 

under 40 CFR 98.266(b)). 

• The annual phosphoric acid 

production capacity for each wetprocess phosphoric acid process line 

(reported under 40 CFR 98.266(f)(3)). 

• The annual production capacity of 

silicon carbide reported by facilities 

using CEMS (reported under 40 CFR 

98.286(a)(3)). 

• The annual production capacity of 

silicon carbide reported by facilities not 

using CEMS (reported under 40 CFR 

98.286(b)(3)). 

• The annual production capacity of 

soda ash for each manufacturing line 

reported by facilities using CEMS 

(reported under 40 CFR 98.296(a)(3)). 

• The annual production capacity of 

soda ash reported by facilities not using 

CEMS (reported under 40 CFR 

98.296(b)(4)). 

• The annual production capacity of 

titanium dioxide reported by facilities 

using CEMS (reported under 40 CFR 

98.316(a)(4)). 

• The annual production capacity of 

titanium dioxide for each production 

line reported by facilities not using 

CEMS (reported under 40 CFR 

98.316(b)(5)). 

• The description of the gas 

collection system at an underground 

coal mine (reported under 40 CFR 

98.326(q)). 

• The annual zinc product 

production capacity reported by 

facilities using CEMS (reported under 

40 CFR 98.336(a)(1)). 

• The annual zinc product 

production capacity reported by 

facilities not using CEMS (reported 

under 40 CFR 98.336(b)(2)). 

• Description or diagram of the 

reporter’s industrial wastewater 

treatment system reported by facilities 

subject to subpart II (reported under 40 

CFR 98.356(a)). 

For the reasons explained below, we 

have decided not to make a CBI 

determination for these data elements. 

Many of these data elements require 

facilities to report the maximum 

production capacity of the facility or 

process line. In the July 2010 CBI 

proposals, we proposed that capacity 

data would be not entitled to CBI 

protection because we believed capacity 

data to be readily available from other 

public sources (e.g., permits, trade and 

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8For those reporters who do not use the data 

elements in the specified equations in Section II.B.1 

of this preamble, the data elements are in the Unit/ 

Process Operating Characteristics that are Not 

Inputs to Emission Equations category. 

government publications). We received 

a number of comments that capacity 

data may not be readily available for all 

sources and claims that capacity 

information is competitively sensitive. 

EPA reviewed the available capacity 

information and determined that the 

situation may vary for individual 

facilities. While the capacity data 

elements listed above are generally 

publicly available, there may be 

facilities where this data is not public. 

Further, the information publicly 

available for facilities may not 

necessarily be the same as the data 

elements required under Part 98. We 

therefore decided not to make a 

confidentiality determination for the 

data elements on capacity listed above 

at this time. 

Similarly, we decided not to make 

determinations for the type of nitric acid 

production process (reported under 40 

CFR 98.226(k), description of the gas 

collection system at an underground 

coal mine (reported under 40 CFR 

98.326(q)), and description of the 

wastewater treatment system (reported 

under 40 CFR 98.356(a)). We consider it 

unlikely that most reporters would 

consider the type of nitric acid 

production process, description of 

wastewater treatment facility or the gas 

collection system at an underground 

coal mine to be sensitive. However, we 

can envision reporters submitting more 

detailed information than anticipated 

that would provide specific details on 

the operation of their facility that would 

be considered sensitive. For example, 40 

CFR 98.326(q) requires reporters to 

submit a description of the gas 

collection system at an underground 

coal mine. If reporters submitted 

detailed diagrams of their facilities these 

diagrams may contain information that 

is proprietary or sensitive or may 

provide insight into other production 

processes. EPA is also not aware of any 

public sources of these data. Therefore, 

although we believe it is unlikely that 

these data elements would cause 

competitive harm, EPA has decided not 

to make determinations for these data 

elements at this time. 

Except for the data elements 

discussed above, we have determined 

that all other data elements in this data 

category are not CBI for the same 

reasons we set forth in Section II.C.7 of 

the July 7, 2010 CBI proposal (see 75 FR 

39111). We disagree with commenters 

who recommended that the number of 

process lines or units be held 

confidential because their disclosure 

would be likely to cause competitive 

harm. This information is generally 

included in both construction and Title 

V operating permits as well as in permit 

applications and permit fact sheets and 

is therefore already publicly available. 

Permits include requirements or limits 

for each specific unit or process line. 

Because the number of production units 

is already publicly available, these data 

elements do not qualify for confidential 

treatment (see 40 CFR 2.208(c)). 

7. Unit/Process Operating 

Characteristics Category That Are Not 

Inputs to Emission Equations 

New Data Elements: EPA has added 

four new data elements to this data 

category (see Section II.B.1 of this 

preamble for a list of the new data 

elements). The new data elements are 

reported by municipal landfills that use 

an alternative methane correction factor 

instead of the default factor provided in 

40 CFR part 98, subpart HH. The data 

elements consist of information on the 

operation of aeration systems at the 

landfill, such as the number of hours it 

was operated and the fraction of the 

landfill subject to aeration. These new 

data elements were added to subpart HH 

by the amendments published on 

October 28, 2010 (75 FR 66434) and 

were not included in the July 2010 CBI 

proposals. These data elements are the 

same type of data as other data elements 

included in this category in the July 

2010 CBI proposals (e.g., the type of 

cover material used and the surface area 

of the landfill (reported under 40 CFR 

98.346(f)). Like these other data 

elements in this category, the four data 

elements at issue provide general 

information about the operation of a 

municipal landfill; such information 

does not reveal any trade secrets or 

other sensitive business information 

regarding the design or operation of an 

aeration system or the landfill. Further, 

this type of data on landfills is generally 

already publicly available from the 

municipalities operating landfills. We 

have therefore concluded that the 

release of this data will not cause 

substantial competitive harm to the 

reporter and are finalizing our 

determination that these data elements 

are non-CBI in this action. 

Moved and Double-Listed Data 

Elements: In response to comments 

stating that CO2 generated by a process 

is not actual emissions if a portion of 

the CO2 is collected, EPA has added six 

data elements to this data category 

under certain conditions. Specifically, 

the data elements for reporting the total 

CO2 generated by a process under three 

subparts are added to this category only 

for those facilities that collect a portion 

of the CO2 for use on site or for 

shipment off site. We are including 

these data elements in the Unit/Process 

Operating Characteristics that are Not 

Used as Inputs to Emission Equations 

Data Category, because these data 

elements relate to operating 

characteristics of a production process 

that may vary over time. As with the 

other data elements in this category, 

they do not meet the definition of 

emission data at 40 CFR 

2.301(a)(2)(i)(A). As discussed in more 

detail below in this subsection, we 

received comments that the proposed 

category-based non-CBI determination 

may not be appropriate for all the data 

elements assigned to this category and, 

in response, we reviewed individual 

data elements assigned to this data 

category to determine whether the 

proposed determination applies. For 

reporters who collect the generated CO2

by a process, we determined that the 

data element on the amount of CO2 is 

not CBI. Public availability of the data 

is not likely to cause substantial harm 

to the competitive position of the 

reporter because the data reported is the 

GHG generated by the industrial process 

and does not reveal any sensitive 

information on how much of the GHG 

generated was collected, how much of 

the collected GHG was used onsite (e.g., 

for urea production or sugar refining), or 

how much was transferred off site. As 

described in Section II.A.4 of this 

preamble, EPA moved 37 data elements 

that were improperly placed in the 

Inputs to Emission Equations category 

in the July 2010 CBI proposals. EPA also 

double-listed8 six data elements in both 

the Inputs to Emission Equations 

category and the Unit/Process Operating 

Characteristics that are Not Inputs to 

Emission Equations category. These 43 

data elements share the same 

characteristics as those data elements 

previously assigned to the Unit/Process 

Operating Characteristics that are not 

Inputs to Emission Equations category 

in the July 2010 CBI proposals. 

Specifically, they consist of operating 

parameters that change over time that 

are not used as inputs to emission 

equations. For a list of the reassigned 

data elements, see the memorandum 

‘‘Final Data Category Assignments and 

Confidentiality Determinations for Part 

98 Reporting Elements’’ (see Docket 

EPA–HQ–OAR–2009–0924 and the Web 

site, http://www.epa.gov/climatechange/ 

emissions/ghgrulemaking.html). As 

discussed in more detail below in this 

subsection, we received comments that 

the proposed category-based non-CBI 

determination may not be appropriate 

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for all the data elements assigned to this 

category and, in response, we reviewed 

individual data elements assigned to 

this data category to determine whether 

the proposed determination applies. 

Based on our review, we determined 

that 10 of the 43 data elements are 

entitled to confidential treatment. The 

10 data elements determined to be CBI 

are as follows: 

• Annual average value of the inlet 

air flow rate reported by refineries (40 

CFR 98.256(f)(8)). 

• Annual average value of oxygenenriched air flow rate reported by 

refineries (40 CFR 98.256(f)(8)). 

• Annual average value of %Ooxy

reported by refineries (40 CFR 

98.256(f)(8)). 

• Annual average value of the inlet 

air flow rate reported by refineries (40 

CFR 98.256(f)(9)). 

• Annual average value of oxygenenriched air flow rate reported by 

refineries (40 CFR 98.256(f)(9)). 

• Annual average value of %N2,oxy

reported by refineries (40 CFR 

98.256(f)(9)). 

• Number of regeneration cycles or 

measurement periods during the 

reporting year for each catalytic 

cracking unit, traditional fluid coking 

unit, and catalytic reforming unit 

reported by refineries (40 CFR 

98.256(f)(13). 

• Average coke burn-off quantity per 

cycle or measurement period for each 

catalytic cracking unit, traditional fluid 

coking unit, and catalytic reforming unit 

reported by refineries (40 CFR 

98.256(f)(13)). 

• Annual volume of recycled tail gas 

(if not used to calculate the recycling 

correction factor) (reported under 40 

CFR 98.256(h)(5)). 

• Annual average mole fraction of 

carbon in the tail gas (if not used to 

calculate recycling correction factor) 

(reported under 40 CFR 98.256(h)(5)). 

As with the other data elements in 

this category, none of these 10 data 

elements meet the definition of 

emission data at 40 CFR 2.301(a)(2)(i)(A) 

because they are not ‘‘* * * 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* * *’’ We also determined that 

public availability of these data would 

cause competitive harm to reporters for 

the following reasons. Information on 

the flow rates and composition of inputs 

to the catalytic cracking units (i.e., 40 

CFR 98.256(f)(8) and (f)(9)) provide 

insight into the operation of the 

production process that may reveal 

operating conditions that are considered 

sensitive by the reporter because they 

provide the reporter with a competitive 

advantage over other refineries. The 

average coke burn-off quantity per 

cycle/measurement period for 

individual catalytic cracking units, 

traditional fluid coking units, and 

catalytic reforming units (reported 

under 40 CFR 98.256(f)(13)) discloses 

information about the operation of the 

unit (e.g., the level of reforming), and 

indicates the quantity of naphthalene 

the feedstock and the quantity of 

aromatics produced. The annual volume 

of tail gas recycled and the mole fraction 

of carbon in the tail gas (reported under 

40 CFR 98.256(h)(5)) provide 

information about the refinery’s ability 

to process different types of crude oil, 

and the products the refinery can 

produce. Further, comments from 

refineries indicate that they consider 

these data elements to be sensitive and 

take precautions to ensure this 

information is not made public. We are 

also not aware of any public sources for 

these data elements. For the reasons 

described above, we conclude that these 

data elements are CBI. 

EPA decided not to make final 

confidentiality determinations for seven 

of the 43 data elements in this category. 

These data elements are as follows: 

• Annual average value of the exhaust 

gas flow rate reported by refineries (40 

CFR 98.256(f)(7)). 

• Annual average value of %CO2

reported by refineries (40 CFR 

98.256(f)(7)). 

• Annual average value of %CO 

reported by refineries (40 CFR 

98.256(f)(7)). 

• Annual average value of %O2

reported by refineries (40 CFR 

98.256(f)(8)). 

• Annual average value of %CO2

reported by refineries (40 CFR 

98.256(f)(8)). 

• Annual average value of %CO 

reported by refineries (40 CFR 

98.256(f)(8)). 

• Annual average value of %N2

exhaust reported by refineries (reported 

under 40 CFR 98.256(f)(9)). 

Based on our review of these data 

elements, we have concluded that the 

configuration of individual facilities 

would impact the confidentiality 

determinations for these data elements. 

Because we do not have the necessary 

information on the facility 

configuration, we are unable to make a 

confidentiality determination for these 

data elements. For example, under 40 

CFR 98.256(f)(7) facilities report the 

exhaust flow rate and outlet 

concentrations of CO2 and CO. In some 

cases, the exhaust gases from these units 

are exhausted directly to the 

atmosphere. In such cases, the flow rate 

and CO2 and CO content of the exhaust 

gases meet the definition of emission 

data at 40 CFR 2.301(a)(2)(i)(A) because 

they are ‘‘* * * 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* * *’’ and 

therefore precluded from confidential 

treatment pursuant to CAA section 

114(c). However, other reporters do not 

exhaust these gases directly to the 

atmosphere but instead route them to 

other units (e.g., other combustion 

units). For these facilities, the flow rate 

and concentrations of CO2 and CO 

reported under 40 CFR 98.256(f)(7) 

would not be precluded from CBI 

treatment because the data elements 

would not meet the definition of 

emission data since they do not provide 

information on the type and 

characteristics of pollutants emitted to 

the atmosphere. Because we do not have 

information on site-specific conditions 

that impact the status of these data 

elements, we have decided not to make 

determinations for these 7 data elements 

in this action. 

With respect to the remaining 26 data 

elements moved to the data category 

from Inputs to Emissions Equations, for 

the reasons discussed in more detail in 

Section II.C.7 of the July 7, 2010 CBI 

proposal (see 75 FR 39111), EPA has 

concluded the disclosure of these data 

elements is unlikely to cause 

competitive harm. These data elements 

do not provide insight into current 

production rates, raw material 

consumption, or other information that 

competitors could use to discern market 

share and other sensitive information. 

They consist of data elements such as 

the amount and carbon content of gases 

sent to flares at refineries and the dates 

on which ventilation/degasification 

occurs at underground coal mines, 

which are not considered to be sensitive 

information. 

Comment: The data elements in this 

data category consist of operating 

characteristics related to production 

processes. Unlike the Unit/Process 

Static Characteristics that are Not Inputs 

to Emission Equations category 

discussed Section II.B.6 of this 

preamble, these data elements change 

with changes in operations or processes. 

Some commenters agreed with EPA’s 

proposed determination that the data in 

this category would not qualify for 

confidential treatment under CAA 

section 114(c) because it was general 

information that was not likely to cause 

competitive harm to reporters. However, 

several commenters expressed concern 

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that competitors could use some data 

elements in this category, in 

combination with other data, to discern 

information about individual facilities 

and processes, causing competitive 

harm. Some commenters noted that 

many of the data elements in this 

category are not already available to the 

public, supporting the assertion that 

they would cause competitive harm if 

disclosed. For example, one commenter 

noted that the number of operating kilns 

reported by a cement manufacturing 

facility (reported under 40 CFR 

98.86(a)(3) and 98.86(b)(4)) was not 

information already available to the 

public. This commenter stated that the 

number of operating kilns could be used 

by competitors to determine the amount 

of product produced, estimate market 

share, and pricing structures. The 

commenter believes that this 

information could put the reporter at a 

competitive disadvantage. Other 

commenters recommended that the 

quality assurance/quality control data, 

collected by facilities to verify data 

provided by raw material suppliers, 

should be held confidential because 

competitors could use these data to 

determine product composition and 

process design or operating 

characteristics that reporters consider 

proprietary. One commenter stated that 

certain information submitted as part of 

BAMM extension requests was sensitive 

information requiring confidential 

treatment. This commenter specifically 

identified the following data elements 

from BAMM extension requests as 

confidential: the reason for the 

extension request (40 CFR 

98.3(d)(2)(ii)(C)) and the planned 

installation date of monitoring 

equipment (40 CFR 98.3(d)(2)(ii)(F)). 

The commenter noted that this 

information could be used by 

competitors to determine a company’s 

ability to capitalize on specific market 

opportunities and would allow 

competitors to target markets based on 

weaknesses and vulnerabilities. The 

commenter further stated that 

information on future shutdowns would 

allow competitors to increase 

production during a reporter’s 

shutdown and would likely cause 

serious harm to the reporter’s 

competitive position. 

Other commenters recommended EPA 

allow reporters to make individual caseby-case CBI claims for data elements in 

this data category. 

Response: The comments raised a 

concern that the proposed non-CBI 

determination may not be appropriate 

for certain data elements in this 

category. Note that EPA did not receive 

comments specific to the data elements 

in this category objecting to our 

proposed determination that the data 

elements in this category do meet the 

definition of emission data because 

none of the data elements are inputs to 

equations/calculation methods or 

information otherwise needed to 

calculate or determine emissions. We 

therefore conclude that the proposed 

determination was appropriate in this 

regard and finalize in this action our 

determination that the data elements in 

this category are not emission data 

under 40 CFR 2.301(a)(2)(i). 

In response to the comments that a 

non-CBI determination for this category 

was not appropriate, EPA decided to reevaluate each data element assigned to 

this data category to determine whether 

the proposed determination applies. As 

part of this process, EPA reviewed 

public comments regarding specific data 

elements, conducted additional reviews 

of alternative public data sources (e.g., 

Title V permits, NEI databases) and reevaluated whether each data element 

would be likely to cause harm to a 

reporter’s competitive position. Through 

this process, we have determined that 

ten data elements in the Unit/Process 

Operating Characteristics that are Not 

Inputs to Emission Equations category 

are CBI. These data elements include 

the following: 

• The reason for submitting a BAMM 

extension request (reported under 40 

CFR 983(d)(ii)(C)). 

• The reason why equipment was not 

or could not be obtained and installed 

during a planned shutdown between 

October 30, 2009 and April 1, 2010 as 

reported in a BAMM extension request 

(reported under 40 CFR 

98.3(d)(2)(ii)(E)). 

• Planned installation date for 

monitoring equipment as reported in a 

BAMM extension request (reported 

under 40 CFR 98.3(d)(2)(ii)(F)). 

• The anticipated date on which a 

facility applying for a BAMM extension 

will begin using the monitoring 

methods specified in Part 98 (reported 

under 40 CFR 98.3(d)(2)(ii)(F)). 

• The sampling analysis results of 

carbon content of feedstock as 

determined from QA/QC supplier data 

under 40 CFR 98.74(e) by ammonia 

manufacturing facilities (reported under 

40 CFR 98.76(b)(6)). 

• The mass fraction of each sample 

analyzed for all tests used to verify (i.e., 

QA/QC) the carbonate-based mineral 

mass fraction for each carbonate-based 

raw material charged to a continuous 

glass melting furnace (reported under 40 

CFR 98.146(b)(5)(iii)). 

• The explanation of change greater 

than 30 percent in a magnesium 

production facility’s cover gas usage rate 

(reported under 40 CFR 98.206(g)). 

• The types of materials loaded by 

vessel type that have an equilibrium 

vapor phase concentration of CH4 of 0.5 

volume per cent or greater (reported 

under 40 CFR 98.256(p)(2)). 

• The sampling analysis results for 

carbon content of petroleum coke 

consumed by a silicon carbide 

production facility as determined for 

QA/QC of data provided by raw material 

suppliers (reported under 40 CFR 

98.286(b)(7)). 

• The sampling analysis results of 

carbon content of petroleum coke 

consumed by titanium dioxide 

production facilities for QA/QC of data 

provided by raw material suppliers 

(reported under 40 CFR 316(b)(13)). 

EPA has learned that these data 

elements are not publicly available 

information, and they consist of 

proprietary information about a process, 

method of operation, composition of 

raw materials or products that are 

commonly considered CBI. 

EPA agrees with commenters who 

recommended that certain data elements 

submitted as part of BAMM extension 

requests are eligible for confidential 

treatment. At the time of the CBI 

proposals, we believed the reason for 

requesting a BAMM extension (reported 

under 40 CFR 98.3(d)(2)(ii)(C)) and the 

reason why equipment was not (or 

could not be) installed (reported under 

40 CFR 98.3(d)(2)(ii)(E)) would be 

generic information that would not 

reveal any sensitive operating 

information. However, since that time 

EPA has reviewed a number of BAMM 

extension requests and determined that 

they contain more detailed information, 

such as process diagrams and 

operational information, than we had 

previously anticipated. We also note 

that many facilities have claimed these 

data as CBI in their BAMM extension 

requests because they provide insight 

into facility-specific operating 

conditions or process design that are not 

available from other sources and would 

harm their competitive position if 

released. We also agree with those 

commenters who stated that the 

planned installation date and the date of 

anticipated startup (reported under 40 

CFR 98.3(d)(2)(ii)(F)) provides sensitive 

information regarding future process 

shutdowns. These data elements likely 

would cause competitive harm if 

disclosed because competitors could use 

this information to anticipate and 

potentially benefit from future decreases 

in product supply. For example, a 

competitor able to anticipate the 

shutdown of a reporter’s facility and 

resulting decrease in product supply, 

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could use this information to steal 

customers from a reporters by increasing 

its own production or could adjust the 

price of their own products. 

We also agree that the results of 

sampling and analysis data used to 

quality assurance/quality control data 

on the composition of raw materials 

would be likely to cause competitive 

harm to reporters and is not available 

from other sources. Competitors could 

use the composition of raw materials to 

identify a firm’s raw material supplier 

and estimate production costs. In the 

case of glass manufacturing facilities, 

the data would also reveal proprietary 

information about product formulation 

or recipe. Since this information is not 

available from other sources and may be 

used by competitors to devise 

competitive strategies that would likely 

harm the competitive position of the 

reporter, EPA has determined that these 

data are eligible for confidential 

treatment. 

We have also determined that the data 

element reported by petroleum 

refineries under subpart Y related to the 

types of materials loaded that have an 

equilibrium vapor phase concentration 

of CH4 of 0.5 volume percent or greater 

(40 CFR 98.256(p)(2)) are entitled to 

confidential treatment. EPA has learned 

that this data is only released in 

aggregate form by EIA. This data could 

be used by competitors in combination 

with other information to discern the 

approximate quantities of materials 

used in loading operations. Information 

of this type would provide competitors 

insight into the shipping activities 

conducted at refineries. 

Except for the data elements listed 

above, we conclude for the reasons set 

forth below and in Section II.C.7 of the 

July 7, 2010 CBI proposal that the 

proposed non-CBI determination is 

appropriate for all other data elements 

belonging to this data category and are 

finalizing these determinations in this 

action. We disagree with commenters 

who recommended that the number of 

units operated during a reporting year 

should be held confidential. This 

information cannot be used to 

determine production data for a facility 

and would not provide insight into a 

facility’s design or operating 

procedures. It is also unlikely to reveal 

any information regarding future 

production that would be useful to 

competitors or allow competitors to 

anticipate future shutdowns. EPA 

therefore continues to conclude that 

public availability of these data 

elements would not cause competitive 

harm to the reporter. 

8. Test and Calibration Methods 

Category 

Moved Data Elements: EPA 

determined that the following seven 

data elements were incorrectly assigned 

to the Methods and Methodological Tier 

category: 

• The basis for the unit-specific factor 

(i.e., select from average of multiple 

source tests; Single source test within 

last 5 years; Single source test more than 

5 years ago; Source test of identical unit 

at same facility) (40 CFR 98.256(i)(8)). 

• The basis for the CO2 emission 

factor used in Equation Y–16b (40 CFR 

98.256(j)(8)). 

• The basis for the carbon emission 

factor used in Equation Y–16b (40 CFR 

98.256(j)(8)). 

• Indication of the measurement or 

estimation method used for measuring 

volumetric flow discharge for each 

process vent (40 CFR 98.256(l)(5)). 

• Indication of the measurement or 

estimation method used for measuring 

average mole fraction of each GHG for 

each process vent (40 CFR 98.256(l)(5)). 

• The basis for the CH4 emission 

factor used (i.e., select from weekly or 

more often measurements; Periodic (less 

frequent than weekly) measurements; 

average of multiple source tests; Onetime source test; Default factor) for 

uncontrolled blowdown systems (40 

CFR 98.256(m)(3)). 

• Basis for the mole fraction of CH4 in 

the vent gas from the unstabilized crude 

oil storage tank (i.e., measurement of 

methane composition; engineering 

estimate of methane composition based 

on crude composition; default) for 

storage tanks that process unstabilized 

crude oil (40 CFR 98.256(o)(4)(vi)). 

EPA has also determined that the 

following two data elements were 

incorrectly assigned to the Inputs to 

Emission Equations category: 

• Date of measurement of the 

volumetric flow rate for each ventilation 

monitoring point (40 CFR 98.326(f)). 

• Date of measurement of methane 

concentration for each ventilation 

monitoring point (40 CFR 98.326(g)). 

These nine data elements provide 

information on how specific parameters 

or emission factors were determined 

(e.g., weekly measurements versus daily 

measurements, direct measurement 

versus engineering estimates) or the 

dates on which measurements were 

made. They are not used to calculate 

emissions or to determine the 

calculation method used to calculate the 

GHG emissions. Therefore, we have 

assigned these data elements to the Test 

and Calibration methods category, 

which contains similar data elements. 

For example, 40 CFR 98.256(i)(8) is 

similar to 40 CFR 98.256(e)(10), which 

requires refineries to report the basis for 

the value of the fraction of carbon in the 

flare gas contributed to methane by 

selecting from the following list: Daily 

or more often measurements; weekly 

measurements; periodic (less frequent 

than weekly) measurements; One-time 

measurement; engineering estimate; 

default (0.4); and other. Since these data 

elements are similar in type to the data 

elements included in this category, we 

have concluded that the non-CBI 

determination applied to the Test and 

Calibration Methods category also 

applies to these data elements. 

Comment: This data category includes 

information on calibration methods 

used to calibrate monitoring 

instruments, the frequency of sampling 

and analysis, methods used in 

performance tests, and methods used for 

analyzing the compositions of materials. 

Few commenters submitted comments 

on this data category. Many of those 

commenters agreed with EPA’s 

proposed determination that disclosure 

of the data elements in this category 

would not cause competitive harm to 

reporters. One commenter noted that the 

type of test methods and other data 

elements included in this data category 

are generally already specified in the 

GHG Reporting Rule. This commenter 

asserted that data elements confirming 

that the correct monitoring methods or 

calibration procedures were used are 

generally not the type of data 

considered competitively sensitive by 

reporters. 

A few commenters disagreed with 

EPA’s proposed determination for this 

data category. One commenter thought 

that the description of the BAMM used 

(reported under 40 CFR 98.3(c)(7)) 

should be held as confidential 

information, but did not provide any 

explanation or rationale for why this 

data element would be likely to cause 

substantial harm to their competitive 

position. One commenter indicated that 

the method used to measure the 

frequency and duration of anode effects 

or overvoltage (reported under 40 CFR 

98.66(d)) should be considered 

confidential. This commenter stated that 

information about the method used to 

measure these parameters could be used 

in combination with other reported data 

to estimate other parameters that would 

cause competitive harm (e.g., aluminum 

production). This commenter also 

identified the date on which tests were 

completed to determine emissions 

factors (reported under 40 CFR 

98.66(c)(3)) as confidential, but did not 

provide any rationale for why this data 

element would cause competitive harm. 

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9For those reporters who do not use the data 

elements in the equations specified in Section 

II.B.1, the data elements are in the Production/ 

Throughput Data That Are Not Inputs to Emission 

Equations. 

Response: Although some 

commenters disagreed with our 

proposed determination for this 

category, only one provided rationale 

supporting that claim. However, for the 

reasons explained below, we disagree 

with the commenter that the method 

used to measure parameters, such as the 

frequency and duration of anode effects 

or overvoltage (reported under 40 CFR 

98.66(d)), could be used to derive other 

sensitive information that would cause 

competitive harm. As previously 

described in Section II.C.9 in the 

proposal preamble (75 FR 39094, July 7, 

2010), the data elements in this 

category, including those noted in the 

comments, consist of descriptions of 

devices or methods used to measure a 

parameter, the method and frequency of 

calibrating measurement devices, and 

the frequency and analytical methods 

used for conducting performance tests 

or sample analysis. The type of device 

used to make the measurement (e.g., 

flow meter, weighing scales) and the 

frequency and method of calibrating the 

measuring device do not reveal the 

actual values of the measured 

parameters or provide any other 

sensitive information about the design 

or operating characteristics of a process. 

The standardized analytical method and 

the frequency of sample collection and 

analysis are generally specified by each 

subpart and do not provide any insight 

into the design or operating conditions 

of a facility. For the reasons stated above 

and in Section II.C.9 in the proposal 

preamble (75 FR 39094, July 7, 2010), 

we conclude that our proposed non-CBI 

determination for this data category is 

appropriate. 

9. Production/Throughput Data 

Elements That Are Not Inputs to 

Emission Equations and Raw Materials 

Consumed That Are Not Inputs to 

Emission Equations Categories 

Moved and Double-Listed Data 

Elements: After reviewing industry 

comments related to the capture of 

process emissions for use on site, EPA 

determined that the data element 

required to be reported by 40 CFR 

98.196(b)(17)(i) was incorrectly assigned 

to the Unit/Process Operating 

Characteristics That Are Not Used as 

Inputs to Emission Equations Data 

Category. EPA has determined that this 

data element, which requires lime 

manufacturers to report the amount of 

CO2 captured for use in on-site 

processes, is information about 

materials used in a production process. 

Such information relates to production 

(such as the actual production rate) and 

not unit/process operating 

characteristics. Therefore, we have 

assigned this data element to the 

Production/Throughput Data That Are 

Not Inputs to Emissions Equations Data 

Category (which contains similar data 

elements (e.g., 40 CFR 98.76(b)(13) 

requiring ammonia facilities to report 

the amount of CO2 from the ammonia 

production process used to produce 

urea) and have concluded that the CBI 

determination applied to that category 

also applies to this data element. 

EPA has moved three data elements 

from the Inputs to Emission Equations 

category to the Production/Throughput 

Data That Are Not Inputs to Emission 

Equations and double-listed 9 two data 

elements in these two categories.10 Each 

of these five data elements requires the 

reporting of either the quantity or 

composition of a product, which are the 

same type of data assigned to this 

category. For example, the annual 

quantity of petrochemicals produced (40 

CFR 98.246(a)(5)), volume or mass of 

off-specification product produced (40 

CFR 98.246(a)(9)), and monthly 

production of titanium dioxide (40 CFR 

98.316(b)(8)) are the same type of data 

as 40 CFR 296(b)(6) (monthly 

production of soda ash) and 40 CFR 

98.316(b)(5) (annual production of 

titanium dioxide). The cumulative 

volumetric biogas flow and the weekly 

average CH4 concentration for each 

week that biogas is collected for 

destruction reported by wastewater 

treatment facilities using daily sampling 

((40 CFR 98.356(d)(2) and (d)(3)) are 

also the same as the other data elements 

listed in this category because they can 

be used to determined the average 

weekly biogas production for the 

wastewater treatment facility. Because 

these five data elements are the same 

type of data as the other data elements 

in this category, we have concluded that 

the CBI determination applied to that 

category also applies to this data 

element. 

Comment: Many commenters 

supported EPA’s proposed 

determination that the data in these two 

data categories (none of which are 

inputs to equations/calculation methods 

or information otherwise needed to 

calculate or determine emissions) 

qualify for confidential treatment. The 

commenters agreed that the data 

elements in these data categories should 

be kept confidential because disclosure 

of these data would cause substantial 

harm to the competitive position of 

reporters. They argue that disclosure of 

these data could provide competitors 

with insight into a facility’s operational 

strengths and weaknesses as well as 

revealing information about raw 

material sources. Some commenters 

argued that the data are currently held 

as CBI under other Federal programs 

that collect these data. Others agreed 

with EPA’s proposal that the data 

elements in these data categories do not 

meet the definition of emission data (40 

CFR 2.301(a)(2)(i)). 

Several commenters identified 

specific data elements from these data 

categories as confidential and provided 

information describing why they 

considered the data sensitive. For 

example, commenters stated that data 

elements that provide the chemical 

composition of products could be used 

by competitors to deduce the types of 

feedstock or raw materials used in the 

process. Other commenters stated that 

data on the quantities of product and 

by-products produced and raw materials 

consumed should be kept confidential 

because this information can be used by 

competitors to determine production 

costs, process efficiency, and market 

share. 

Although most commenters agreed 

with EPA’s proposed determinations for 

these two data categories, a few 

commenters believe that EPA should 

make data in these categories available 

to the public. Some commenters 

recommended that EPA disclose the 

data in these data categories because it 

would promote confidence in the data 

and would be consistent with the CAA. 

They stated that these data elements are 

verification data that are necessary to 

ensure the reported emissions are 

accurate. They argued that since the 

data elements may be used to verify the 

GHG emissions, they meet the definition 

of emission data in 40 CFR 

2.301(a)(2)(i). They further argued that 

these data elements are especially 

important where facilities use indirect 

measurement methods (e.g., emission 

factors) to estimate emissions. Another 

commenter stated that EPA should 

publish production throughput and raw 

material consumption data because this 

information is essential for making 

comparisons between facilities. This 

commenter argued that the data in these 

data categories should be made public 

because, without this information, the 

public would not be able to determine 

the amount of GHGs per unit of 

production, which is useful for 

assessing and comparing the carbon 

efficiency of a facility. 

Response: We disagree with those 

commenters who argued that, because 

the data in these categories are used to 

verify the reported GHG emissions, 

these data meet the definition of 

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emission data in 40 CFR 2.301(a)(2)(i). 

As we described in the July 7, 2010 CBI 

proposal, none of the data elements in 

these data categories are used by 

reporters to calculate GHG emissions 

under Part 98. Although the data may be 

used to verify the accuracy of the 

reported emissions, we do not consider 

them ‘‘necessary to determine’’ the 

amount of GHG emissions under Part 98 

because emissions are in fact calculated 

without these data elements. Therefore, 

these data elements do not meet the 

definition of emission data in 40 CFR 

2.301(a)(2). We agree that these data 

elements are useful for making 

comparisons between industries and 

individual facilities and could be useful 

to industry, non-government 

organizations (NGOs), public, and other 

stakeholders when assessing any 

regulatory program. However, CAA 

section 114(c) requires that EPA afford 

confidential treatment to CBI (except for 

emission data). These commenters did 

not claim or provide any information 

indicating that data elements in these 

categories are not CBI. Further, many 

other commenters provided information 

explaining how the release of data in 

this category might provide insight into 

production rates, methods, and 

efficiencies causing harm to the 

competitive position of reporters. We 

therefore conclude that our proposed 

CBI determinations for these two data 

categories are appropriate and finalize 

these CBI determinations in this action. 

10. Process-Specific and Vendor Data 

Submitted in BAMM Extension 

Requests Category 

Comment: Only a few commenters 

submitted comments on this data 

category. The majority of those 

commenters agreed with EPA’s 

proposed determination that disclosure 

of these data would substantially harm 

the competitive position of reporters 

and that therefore the data in this 

category qualify for confidential 

treatment. A few commenters provided 

very general statements that disclosure 

of these data would be consistent with 

CAA and the Greenhouse Gas Reporting 

Program (GHGRP). We have also 

received comments generally claiming 

that all or most Part 98 data elements 

should be made available to the public. 

However, these commenters did not 

provide any specific rationale for that 

position. 

Response: Although some 

commenters disagreed with our 

proposed determination that data in this 

category qualify as CBI, none provided 

any rationale or information for us to 

evaluate whether our proposed 

determination is not appropriate for any 

data elements in this data category. The 

commenters did not explain how the 

data in this category meet the definition 

of emission data, provide alternative 

public sources demonstrating that the 

data is already publicly available, or 

provide information demonstrating how 

disclosure of the data elements in this 

category would not cause competitive 

harm. Furthermore, most comments on 

this data category confirm that 

disclosure of the data elements in this 

category could divulge sensitive 

information about specific processes 

used by the facility or vendor 

information, and the disclosure of this 

information is likely to cause substantial 

harm to reporters. In light of the above, 

we conclude that our proposed CBI 

determination for this data category is 

appropriate and finalize that 

determination in this action. 

C. Suppliers 

1. Major Changes to Determinations for 

Supplier Data Elements Since Proposal 

We are finalizing our category 

assignments of the data elements in the 

supplier subparts specified in Section 

I.C. of this preamble for the 11 supplier 

data categories and our confidentiality 

determinations for these 11 supplier 

data categories, including the individual 

determinations for certain data elements 

in the following categories: GHGs 

Reported, Production/Throughput 

Quantities and Composition, and Unit/ 

Process Operating Characteristics. Major 

changes to the determinations for the 

supplier data elements since our CBI 

proposals include: 

• Although we had proposed that the 

total CO2 supplied as reported under 

subpart PP would be non-CBI, we have 

determined in this final action that this 

information is CBI for industrial CO2

production facilities (e.g., ammonia 

production facilities that collect CO2 for 

transfer off site), is non-CBI for CO2

production wells, and is CBI for 

importers and exporters for the reasons 

specified in Section II.C.3 of this 

preamble. 

• In this final action, we have added 

the following new data element to the 

GHGs Reported category: the total 

annual CO2 mass supplied in metric 

tons as calculated using Equation PP–3b 

(40 CFR 98.426(c)(2)(iii)). We have 

determined that this data element is CBI 

when reported by industrial production 

facilities, and is non-CBI when reported 

by CO2 production wells for the reasons 

specified in Section II.C.3 of this 

preamble. 

• Although we had proposed a nonCBI status for the following data 

elements in the GHGs Reported data 

category, we have determined in this 

final action that they qualify as CBI 

under the following conditions for the 

reasons specified in Section II.C.3 of 

this preamble. These data elements are 

as follows: 

—The total combined supplier level 

CO2e (40 CFR 98.3(c)(5)(i)) is CBI if 

the reporter produces, imports, 

exports or otherwise supplies just one 

product and if EPA has determined 

that the amount of that one product 

produced, imported, exported or 

otherwise supplied is CBI. 

—The quantity of each GHG (40 CFR 

98.3(c)(5)(ii)) is CBI if the reporter 

produces, imports, exports, or 

otherwise supplies just one product 

and if EPA has determined that the 

amount of that one product produced, 

imported, exported or otherwise 

supplied is CBI. 

• EPA has decided not to make final 

confidentiality determinations for data 

elements reported by importers of CoalBased Liquids and Petroleum Products 

(subparts LL and MM) describing the 

amount and type of materials imported. 

These data elements are described in the 

GHGs Reported and Production/ 

Throughput data categories. For 

additional information, see Sections 

II.C.3 and II.C.4 of this preamble. 

• In this final action, we have added 

the following two new data elements to 

the Production/Throughput Quantities 

and Composition data category. We 

have also determined, as explained in 

Section II.C.4 of this preamble, that 

these data elements are CBI when 

reported by industrial production 

facilities, and non-CBI when reported by 

CO2 production wells. The data 

elements are as follows: 

—The total annual CO2 mass through 

main flow meter(s) in metric tons (40 

CFR 98.426(c)(2)(i)). 

—The total annual CO2 mass through 

subsequent flow meter(s) in metric 

tons (40 CFR 98.426(c)(2)(ii)). 

• Although we had proposed a nonCBI status for the following data 

elements in the Production/Throughput 

data category, we have determined in 

this final action that they qualify as CBI 

for the reasons specified in Section 

II.C.4 of this preamble. These data 

elements are as follows: 

—Facility-level and meter-level CO2

supply data reported by industrial 

CO2 production facilities under 

subpart PP. 

—The amount of CO2 supplied to each 

of 13 types of end-users reported 

under subpart PP. 

• Although we had proposed a nonCBI status for the following data 

elements in the Unit/Process Operating 

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11See letter to the U.S. EPA Administrator from 

the Clean Air Task Force, Natural Resources 

Defense Council, and Sierra Club, submitted August 

26, 2010 (EPA–HQ–OAR–2009–0924–0018.1). 

Characteristics data category, we have 

determined in this final action that they 

qualify as CBI for the reasons specified 

in Section II.C.6 of this preamble. These 

data elements are as follows: 

—The dates on which fluorinated GHGs 

are imported and/or exported 

reported under subpart OO (40 CFR 

98.416(c)(3) and (d)(5)). 

—The port of entry or export reported 

under subpart OO (40 CFR 

98.416(c)(4) and (d)(5)). 

—The reason for submitting a BAMM 

extension request and reason why 

monitoring equipment was not 

installed by the required deadline 

reported under subpart A (40 CFR 

98.3(d)(2)(ii)(C)) and 98.3(d)(2)(ii)(E)). 

—The dates of planned installation and 

anticipated compliance with 

monitoring requirements submitted in 

BAMM extension requests reported 

under subpart A (40 CFR 

98.3(d)(2)(ii)(F)). 

• In this final action, we have added 

the following new data element to the 

Unit/Process Operating Characteristics 

data category: Location of each flow 

meter in relation to the point of 

segregation (40 CFR 98.426(c)(2)(iv)). 

We have also determined that this data 

element is not CBI for the reasons 

specified in Section II.C.6 of this 

preamble. 

• In this final action, we have added 

the following seven new data elements 

to the Amount and Composition of 

Materials Received data category. We 

have also determined that these data 

elements are CBI for the reasons 

specified in Section II.C.10 of this 

preamble. The data elements are as 

follows: 

—EIA crude stream code (40 CFR 

98.396(a)(20)(v)). 

—Crude stream name (40 CFR 

98.396(a)(20)(v)). 

—Generic name for crude stream (40 

CFR 98.396(a)(20)(vi)). 

—EIA two-letter country or state 

production area code for batch (40 

CFR 98.396(a)(20)(vi)). 

—Volume of crude oil in barrels 

injected into a crude oil supply or 

reservoir (40 CFR 98.396(a)(22)). 

—Report the next most appropriate tier 

of the batch definition for reporting 

batch information under 40 CFR 

98.396(a)(20) (40 CFR 98.396(a)(23)). 

—Indication of whether the material is 

a blended non-crude feedstock or 

blended product (40 CFR 

98.396(d)(1)(iii). 

The rationales for these changes can 

be found below in Sections II.C.2 

through C.13 of this preamble and in the 

‘‘Proposed Confidentiality 

Determinations and Data Handling 

Procedures for Part 98 Data: Responses 

to Public Comments’’ (available in the 

Docket EPA–HQ–OAR–2009–0924 and 

on the Web site 

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

emissions/ghgrulemaking.html). 

A final list of all the data elements in 

each supplier data category, by subpart, 

is provided in a memorandum (see 

Memorandum ‘‘Final Data Category 

Assignments and Confidentiality 

Determinations for Part 98 Reporting 

Elements’’ in Docket EPA–HQ–OAR– 

2009–0924 and on the Web site 

(http://www.epa.gov/climatechange/ 

emissions/ghgrulemaking.html). 

2. General Comments on the Supplier 

Data Categories 

Comment: Most commenters agreed 

with our proposed determination that 

none of the supplier data categories 

meet the definition of emission data in 

40 CFR 2.301(a)(2)(i). Some commenters 

agreed with our proposal, but argued 

that all data that are not emission data 

should be kept confidential. 

Two commenters disagreed with 

EPA’s proposal that none of the supplier 

data categories meet the definition of 

emission data. These commenters stated 

that the fuels and other products 

reported by suppliers are eventually 

emitted and that the suppliers are thus 

the ultimate source of those emissions. 

They further argued that if ‘‘* * * EPA 

seeks to measure emissions from entities 

which use supplied fuels or gases, it 

may measure emissions from these 

‘‘source[s] of emissions’’ by seeking data 

from suppliers.’’ 11

Response: EPA disagrees with those 

commenters who stated that the 

definition of emission data includes 

supplier data. As explained in the July 

7, 2010 CBI proposal, 40 CFR 

2.301(a)(2)(i) defines emission data to 

refer to emissions emitted or authorized 

to be emitted by a reporting facility. The 

data reported under the supplier 

subparts pertains to certain products 

that would result in GHG emissions if 

released, combusted, or oxidized by the 

downstream user of these products. EPA 

agrees that it may use the data reported 

under the supplier subparts to calculate 

the GHG emissions that would result 

from the use or combustion of the 

products supplied by these reporters. 

Nevertheless, the data reported under 

the supplier subparts does not include 

information on the actual emissions that 

occur at supplier facilities. Therefore, in 

this action, we finalize our 

determination that the supplier data 

elements do not meet the definition of 

emission data as that term is defined in 

40 CFR 2.301(a)(2)(i). 

We also disagree with those 

commenters who stated that all supplier 

data should be held as confidential 

because the supplier data does not meet 

the definition of emission data. Under 

the Freedom of Information Act and the 

CAA section 114(c), EPA is required to 

disclose information that does not 

qualify for confidential treatment. In the 

July 2010 CBI proposals, EPA proposed 

to determine, either by category or data 

element, that certain supplier data 

elements are CBI while others are nonCBI. The CBI proposals provided 

detailed rationales for EPA’s proposed 

determinations. Most commenters did 

not provide information that a specific 

determination or supporting rationale 

was flawed or otherwise inappropriate. 

For those that did raise supplier-specific 

issues, we addressed those comments in 

the relevant sections of this preamble 

(see Section II.C.3 through II.C.13 of this 

preamble for comments on the supplier 

data categories). 

3. GHGs Reported Category 

New Data Elements: EPA has added 

one new data element to this data 

category. This data element requires 

production facilities subject to subpart 

PP to report the total annual CO2 mass 

supplied in metric tons as calculated 

using Equation PP–3b (40 CFR 

98.426(c)(2)(iii)). This new data element 

was added to subpart PP by the 

amendments published on December 

17, 2010 (75 FR 79092) and was not 

included in the July 2010 CBI proposals. 

This data element is identical to other 

data elements already assigned to this 

data category (e.g., the annual mass of 

CO2 from all flow meters and CO2

streams that deliver CO2 to containers 

(40 CFR 98.426(c)(1)). Consistent with 

the determination made for other CO2

supply data elements reported under 

subpart PP, EPA has determined that 

this new data element is eligible for 

confidential treatment when reported by 

industrial CO2 production facilities, but 

not entitled to confidential treatment 

when reported by CO2 production wells. 

As explained below in the response to 

comments on this data category, 

although CO2 supply data is generally 

available for CO2 production wells, we 

have found no public sources of such 

data for industrial CO2 production 

facilities. Furthermore, some 

commenters stated that CO2 supply data 

for industrial CO2 production facilities 

would be likely to cause competitive 

harm if disclosed to the public because 

information documenting the amount of 

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CO2 collected and transferred off site 

would provide competitors with 

sensitive information that may be used 

to determine a reporter’s market share 

and to gain insight into a reporter’s 

ability to meet increases in market 

demand. The final determinations for 

this data category are summarized in 

Table 4 of this preamble. 

Comment on Suppliers of CO2

(Subpart PP): Some commenters believe 

that the amount of CO2 collected at 

facilities for transfer off site (reported 

under subpart PP) should be held 

confidential for industrial production 

facilities such as ammonia 

manufacturing plants. These 

commenters stated that this information 

does not meet the definition of emission 

data; is not already publicly available; 

and can be combined with other 

information, such as emissions data 

reported for the associated combustion 

units, to estimate plant performance, 

which would cause competitive harm. 

We also received comments that the 

amount of CO2 imported or exported 

(also reported under subpart PP) does 

not meet the definition of emission data, 

is not already publicly, and should be 

protected as CBI as the release of this 

data could cause competitive harm. 

Response: We agree with commenters 

who recommended that the data 

elements describing the amount of CO2

supplied reported by industrial facilities 

(e.g., ammonia and lime manufacturing 

plants) and by importers and exporters 

under subpart PP are CBI. We agree that, 

for suppliers, the amount of CO2

collected by production facilities and 

transferred off site and the amount of 

CO2 imported or exported does not meet 

the definition of emission data in 40 

CFR 2.301(a)(2)(i), because the CO2 is 

not emitted at the reporter’s facility. We 

previously proposed that this data 

element would be non-CBI for all CO2

suppliers because we had identified 

sources of CO2 supply data. However, 

we have since determined that although 

facility-level CO2 supply data is 

generally available for CO2 production 

wells, such data for industrial CO2

production facilities is not publicly 

available. Likewise, the amount of CO2

supplied is generally not available for 

importers and exporters. We therefore 

agree with the commenters that the 

amount of CO2 collected by production 

facilities and transferred off site and the 

amount of CO2 imported/exported are 

not already available to the public. 

Based on the information provided by 

the commenters, we also agree that for 

industrial sources and for importers/ 

exporters the information would be 

likely to cause competitive harm. For 

industrial sources, we agree with 

commenters who argued that the 

availability of information documenting 

the amount of CO2 collected and 

transferred off site would provide 

competitors with sensitive information 

that may be used to determine a 

reporter’s market share and to gain 

insight into a reporter’s ability to meet 

increases in market demand. For CO2

importers and exporters, the data would 

provide competitors with information 

on market share, which could be used 

to devise marketing strategies that 

undermine or weaken a competitor’s 

position. For the reasons stated above, 

we have determined the total CO2

supplied as reported under subpart PP 

would be CBI when reported by 

industrial CO2 production facilities (e.g., 

ammonia production facilities that 

collect CO2 for transfer off site), non-CBI 

when reported by CO2 production wells, 

and CBI when reported by importers 

and exporters. 

Comment on Suppliers of Coal-Based 

Liquid Fuels (Subpart LL) and Suppliers 

of Petroleum Products (Subpart MM): 

Some commenters recommended that 

total facility-level CO2 and total 

importer level CO2 from subparts LL 

and MM should be eligible for 

confidential treatment. EPA had 

proposed that importer data for subparts 

LL and MM would not be eligible for 

confidential treatment because importer 

data is already publicly available from 

the U.S. Energy Information 

Administration (EIA). One commenter 

disagreed with EPA and stated that data 

reported by importers under subparts LL 

and MM is not publicly available 

through EIA. This commenter stated 

that EPA’s definitions of petroleum 

products and miscellaneous products 

differ from those used by the EIA and 

that these differences in reporting 

requirements would result in some 

supplier data being available to the 

public for the first time. Another 

commenter recommended that the 

amount of CO2 reported, quantities of 

product, and other information for 

imported products be held confidential. 

This commenter agreed that imports are 

routinely reported to EIA, but stated that 

the company that reports the data to the 

EIA may be a company that is under 

contract with the end-user (e.g., a broker 

relationship). As a result, the importer 

under Part 98 and the importer under 

EIA could be different entities. The 

commenter argued that, in these 

circumstances, the amount and 

composition of material imported by the 

part98 reporter would not already be 

publicly available. 

Response: EPA has reviewed the 

comments on the proposed 

determinations for data elements 

reported by importers of coal-based 

liquids and petroleum products under 

subparts LL and MM (40 CFR 

98.386(b)(7) and (b)(8); and 40 CFR 

98.396(b)(7) and (b)(8)). We previously 

proposed a non-CBI status for these data 

elements because we believed the data 

elements were available to the public 

through EIA. Although we recognized 

that there are some differences in the 

products reported under Part 98 and 

EIA reporting program, we previously 

considered the differences to be minor 

and unlikely to reveal sensitive 

information. However, we agree with 

the commenter that EPA’s definitions of 

petroleum products and miscellaneous 

products differ from those used by the 

EIA and that in some instances these 

differences may reveal information 

about the characteristics of an imported 

product that is not available through 

EIA. We also agree that this information 

would cause competitive harm in some 

situations (e.g., where the importer uses 

the imported product as a raw material 

for their manufacturing process, the 

amount and characteristics of the raw 

material provide competitors with 

sensitive information on the 

manufacturing process, production 

costs, and efficiencies). However, we 

also note that the extent to which these 

Part 98 data elements reveal 

competitively harmful information 

would depend on the type of product 

imported because some of the Part 98 

product definitions are identical to or 

sufficiently similar to those used by EIA 

(e.g., the Part 98 definition of ethane is 

identical to that of EIA). We were not 

aware at the time of the proposal that 

some importers subject to Part 98 are 

not required to report their imports to 

the EIA and that the data is instead 

reported by brokers and published by 

EIA using the brokerage’s name rather 

than the name of the company who 

ultimately instigated and received the 

imported products. Therefore, EPA 

agrees with the commenters that, in 

some limited cases, different entities 

may be required to report import data 

under 40 CFR part 98, subparts LL and 

MM and under the EIA reporting 

program. In such instances, we agree 

that the EIA data does not reveal the 

identity of the company reporting 

import data under Part 98 and therefore, 

we conclude that in these limited 

situations the data is not publicly 

available because it cannot be associated 

with Part 98 reporter. Since the 

circumstances vary for each reporter 

with regard to whether the data reported 

under Part 98 is available through EIA, 

EPA has decided not to make a 

confidentiality determination at this 

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time that would apply to all importers 

of coal-based liquids and petroleum 

products. Therefore, EPA is not 

finalizing confidentiality determinations 

in this action for data on the amount of 

CO2 supplied reported by importers of 

Coal-Based Liquids and Petroleum 

Products (40 CFR 98.386(b)(7) and 

(b)(8); and 40 CFR 98.396(b)(7) and 

(b)(8)). 

Comment on Facility-level CO2e: Most 

commenters agreed with EPA’s proposal 

that the total combined supplier-level 

CO2e for subparts LL through PP and the 

total amount of GHGs reported for the 

specific subpart should be publicly 

available, while CO2e reported for 

individual products under subparts LL 

through OO should be held confidential 

unless the data is already publicly 

available. However, some commenters 

were concerned that the combined 

supplier-level CO2e reported for 

subparts LL through PP could provide 

information on the amount of product 

produced where the reporters produce 

only one product. Similarly, some 

commenters recommended that the 

importer/exporter-level CO2e for 

subparts LL through PP should be held 

confidential for reporters who import 

and/or export only one product. These 

commenters stated that the actual 

pounds or tons of the specific product 

produced, imported, or exported could 

be easily discerned from the reported 

CO2e data. Several commenters stated 

that competitors could use these data to 

gain insight into marketing strengths 

and weaknesses and thereby gain a 

competitive advantage over reporting 

entities. Some commenters noted that to 

be consistent with the proposal to treat 

product-specific production throughput 

in the Production/Throughput 

Quantities and Composition Category as 

CBI, EPA should also determine that 

supplier-level CO2e data are CBI for 

facilities and importers/exporters with a 

single product. Some commenters 

recommended that the supplier-level 

CO2e data be held as confidential in 

cases in which a reporter produces or 

imports/exports only a few products or 

in which facilities produce large 

amounts of one product and smaller 

amounts of other products. 

Response: Although there are likely to 

be very few reporters that supply only 

one product, EPA agrees with 

commenters that the total combined 

supplier-level CO2e for subparts LL 

through PP and the total quantity of 

each GHG supplied qualify as CBI if the 

reporter supplies only one of the 

products listed in subparts LL through 

PP and if EPA determined that the 

production, import, export or supply 

rate for that product is CBI (see Table 4 

of this preamble for the list of 

production/throughput data elements 

determined to be CBI and Section II.D.3 

of the July 7, 2010 CBI preamble for the 

rationale). In such instances, we agree 

with the commenters that the supplier 

level CO2e information may be used to 

calculate certain production and 

import/export data that we have 

determined to be CBI. Therefore, 

although we had proposed a non-CBI 

status for the following data elements, 

we have determined in this final action 

that they qualify as CBI under the 

following conditions for the reasons 

stated above: 

• The total combined supplier level 

CO2e (40 CFR 98.3(c)(5)(i)) is 

confidential if the reporter produces, 

imports, exports or otherwise supplies 

just one product and if EPA has 

determined that the amount of that one 

product produced, imported, exported 

or otherwise supplied is CBI. 

• The quantity of each GHG (40 CFR 

98.3(c)(5)(ii) is confidential if the 

reporter produces, imports, exports or 

otherwise supplies just one product and 

if EPA has determined that the amount 

of that one product produced, imported, 

exported or otherwise supplied is CBI. 

We disagree with commenters who 

recommended that facility-level and 

importer/exporter-level CO2e data 

should be held confidential for facilities 

that supply two or more products. We 

do not believe, nor did we receive any 

information indicating, that where a 

facility supplies multiple products, 

competitors would be able to estimate 

with any degree of certainty the 

quantities of a specific product 

produced, imported, or exported using 

the facility-level or importer/exporterlevel CO2e data. Therefore, we 

concluded that our proposed non-CBI 

determination for suppliers who supply 

two or more products is appropriate and 

finalize that determination in this action 

(see Table 4 of this preamble for the 

final confidentiality determinations for 

the Greenhouse Gases Reported). 

TABLE 4—FINAL CBI DETERMINATION FOR GREENHOUSE GASES REPORTED

Source category (Part 98 subpart) Data elements Are these data CBI? 

General Provisions (Subpart A) ............................................ Total facility-level CO2e from subparts LL–PPa .................. No. b

Suppliers of Coal-Based Liquid Fuels and Petroleum Products (subparts LL and MM): Producers.Facility-level CO2 from each subpart c .................................

Product-specific CO2 ............................................................

No. b

Yes. 

Suppliers of Coal-Based Liquids and Petroleum Products 

(subparts LL and MM): Exporters.

Exporter level CO2 from each subpart c ............................... Nob. 

Product-specific CO2 ............................................................ Yes. 

Suppliers of Natural Gas and NGLs (subpart NN): Local 

Distribution Companies (LDCs).

LDC-level CO2 from subpart NNc; Product-specific CO2 No. 

Suppliers of Natural Gas and NGLs (subpart NN): 

Fractionators.

Facility-level CO2 from subpart NNc .................................... Nob. 

Product-specific CO2 ............................................................ Yes. 

Suppliers of Industrial GHGs (subpart OO): Producers ....... Facility-level GHG quantities, by gas, from subpart OOc; 

Product-specific GHG quantities.

Yes. 

Suppliers of Industrial GHGs (subpart OO): Importers and 

Exporters.

Importer/exporter level GHG, by gas, from subpart OOc; 

Product-specific GHG quantities.

Yes. 

Suppliers of CO2 (subpart PP): Production Wells ................ Facility-level CO2 for subpart PPc ........................................ No. 

Suppliers of CO2 (subpart PP): Industrial Production Facilities.Facility-level CO2 for subpart PPc ........................................ Yes. 

Suppliers of CO2 (subpart PP): Importers and Exporters .... Importer/Exporter-level CO2 for subpart PPc ....................... Yes. 

aThis data element, reported under 40 CFR part 98, subpart A, represents the aggregation of CO2e from all supplier source categories. For 

example, if a refinery supplies petrochemical products (40 CFR part 98, subpart MM) and is also a CO2 supplier (40 CFR part 98, subpart PP) 

the facility-level CO2e would represent the CO2e for both activities combined. bThis data element is confidential if the reporter produces, imports, exports or otherwise supplies just one product and if EPA has determined 

that the amount of that one product produced, imported, exported or otherwise supplied is CBI. cThis data element, reported under 40 CFR part 98, subpart A, represents an aggregation of CO2 (by source category) from multiple individual 

products the reporter supplies. 

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4. Production/Throughput Quantities 

and Composition Category 

New Data Elements: EPA has added 

two new data elements to this data 

category: 

• The total annual CO2 mass through 

main flow meter(s) in metric tons (40 

CFR 98.426(c)(2)(i)). 

• The total annual CO2 mass through 

subsequent flow meter(s) in metric tons 

(40 CFR 98.426(c)(2)(ii). 

These new data elements were added 

by the amendments published on 

December 17, 2010 (75 FR 79092) and 

were not included in the July 2010 CBI 

proposals. These data elements, which 

require reporters subject to subpart PP 

to provide CO2 throughput data for 

individual flow meters located at the 

plant, are the same type of data as other 

data elements already assigned to this 

data category (e.g., the annual mass for 

each mass flow meter reported by 

facilities using Equation PP–1 (40 CFR 

98.426(a)(1)). Consistent with the 

determination made for other meterlevel CO2 data in this category, EPA has 

determined that these two new data 

elements are eligible for confidential 

treatment when reported by industrial 

CO2 production facilities, but not 

entitled to confidential treatment when 

reported by production wells. As 

discussed in Section II.C.3 of this 

preamble, although facility-level CO2

supply data is generally available for 

CO2 production wells, we have found 

no public sources of such data for 

industrial CO2 production facilities. 

Furthermore, some commenters stated 

that CO2 supply data for industrial 

production facilities would be likely to 

cause competitive harm if disclosed to 

the public because information 

documenting the amount of CO2

collected and transferred off site would 

provide competitors with sensitive 

information that may be used to 

determine a reporter’s market share and 

to gain insight into a reporter’s ability to 

meet increases in market demand. Since 

the facility-level CO2 data can be 

discerned from the meter-level CO2 data 

reported for the two new data elements, 

we have concluded that these data 

elements are CBI when reported by 

industrial suppliers of CO2 and non-CBI 

when reported by CO2 production wells. 

Comment: In the July 7, 2010 CBI 

proposal, EPA proposed that most data 

elements in the Production/Throughput 

and Composition Category would be 

entitled to confidential treatment, 

except for the following: (1) Facilitylevel and importer/exporter-level data 

for suppliers of CO2, (2) data reported by 

natural gas LDCs, and (3) data reported 

by importers of petroleum products. 

Most commenters agreed with our 

proposed confidentiality determinations 

and with our rationale that facility-level 

data on the annual quantities and types 

of natural gas liquids, petroleum 

products, and industrial GHGs 

produced by facilities would cause 

competitive harm if disclosed to the 

public. 

A number of commenters agreed with 

the determination that the data reported 

under subpart OO should be held 

confidential. One commenter stated that 

disclosure of subpart OO data reported 

by exporters would often disclose data 

on production facilities because some 

production facilities export all or nearly 

all of their products. Others agreed that 

product composition data reported 

under subpart OO is sensitive 

information that would harm the 

competitive position of U.S. companies. 

However, other commenters disagreed, 

stating that the composition of products 

reported under 40 CFR part 98, subpart 

OO should be disclosed because of the 

high global warming potentials of these 

products. 

Some commenters believe that the 

mass of CO2 transferred off site 

(reported under 40 CFR part 98, subpart 

PP) should be held confidential for 

industrial production facilities such as 

ammonia manufacturing plants and for 

CO2 importers and exporters. As 

discussed in Section II.C.3 of this 

preamble for related data elements, 

commenters stated that data on the 

amount of CO2 supplied is not already 

publicly available for industrial CO2

production facilities and CO2 importers 

and exporters and would likely cause 

competitive harm if disclosed to the 

public. 

Several commenters disagreed with 

our proposed determinations for data on 

the quantities and types of natural gas 

liquids and petroleum products 

imported into the U.S. (reported under 

subparts LL and MM) and 

recommended that this data be held 

confidential. As discussed in Section 

II.C.3 of this preamble for related data 

elements, some commenters argued that 

the amount and type of product 

imported is not publicly available from 

EIA for importers that use a broker, 

because the broker reports the import 

data to EIA under the broker’s name. 

They also stated that the Part 98 product 

definitions differed from those of EIA 

and that these differences could reveal 

information not available through EIA. 

They also noted that disclosure of the 

amount and quantity of imported 

material could cause competitive harm 

to importers because it would reveal the 

type and rate of consumption of raw 

materials at their production facilities 

which could be used to discern 

sensitive process information (e.g., 

production efficiency). 

Response: The final determinations 

for this data category are summarized in 

Table 5 of this preamble. Except as 

described below, we have finalized the 

confidentiality determinations as 

proposed in the July 2010 CBI 

proposals. 

TABLE 5—FINAL CONFIDENTIALITY DETERMINATION FOR SUPPLIER PRODUCTION/THROUGHPUT QUANTITIES AND

COMPOSITION DATA

Source category (Part 98 Subpart) Data elements Are these data CBI a

(Y/N)? 

Suppliers of Coal-Based Liquid Fuels and Petroleum 

Products (Subparts LL and MM): Producers.

Facility level, by product ................................................................. Yes. 

Suppliers of Coal-Based Liquids and Petroleum 

Products (Subparts LL and MM): Exporters.

Exporter level, by product ............................................................... Yes. 

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. 

Suppliers of industrial GHGs (Subpart OO): Producers.Facility level, by fluorinated GHG ...................................................

Facility level throughput b information, by process .........................

Yes. 

Yes. 

Suppliers of industrial GHGs (Subpart OO): Importers and exporters.Importer and exporter level, by fluorinated GHG ........................... Yes. 

Suppliers of CO2 (Subpart PP): Production wells ...... Facility-level total CO2 production ................................................... No. 

CO2 mass or volume measured by flow meter .............................. No. 

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TABLE 5—FINAL CONFIDENTIALITY DETERMINATION FOR SUPPLIER PRODUCTION/THROUGHPUT QUANTITIES AND

COMPOSITION DATA—Continued 

Source category (Part 98 Subpart) Data elements Are these data CBI a

(Y/N)? 

Facility level annually aggregated production information, by end 

use application.

No. 

Suppliers of CO2 (Subpart PP): Industrial production 

facilities.

Facility-level total CO2 production ...................................................

CO2 mass or volume measured by flow meter ..............................

Yes. 

Yes. 

Facility level annually aggregated production information, by end 

use application.

Yes. 

Suppliers of CO2(PP): Importers and exporters ......... Importer and exporter level total CO2 imported/exported ............... Yes. 

CO2 mass or volume measured by flow meter, scales and weigh 

bills.

Yes. 

Importer and exporter level annually aggregated production information, by end use application.Yes. 

aProduction/throughput data are reported by product. 

bThroughput information includes the total mass of the reactants, by-products, and wastes permanently removed from each fluorinated GHG 

or nitrous oxide production process. 

EPA has determined that the meterlevel CO2 data and the amount of CO2

supplied to each of the 13 types of endusers (reported under 40 CFR 98.426(f)), 

is CBI for industrial suppliers of CO2

and for CO2 importers and exporters. As 

discussed in Section II.C.3 of this 

preamble, we previously proposed that 

these data elements would be non-CBI 

for all CO2 producers because we had 

identified sources CO2 supply data. 

However, we have since determined 

that although CO2 supply data are 

generally available for CO2 production 

wells, such data for industrial CO2

production facilities and for CO2

importers and exporters is not publicly 

available. We therefore agree with the 

commenter that these data are not 

already available to the public. The 

meter-level CO2 data and the amount of 

CO2 supplied to each of the 13 types of 

end-users can be used to calculate the 

facility-level CO2 supply data for 

industrial sources. Information 

documenting the amount of CO2

collected and transferred off site, 

including the data elements at issue, 

provides competitors with sensitive 

information that may be used to 

determine a facility’s market share and 

to gain insight into a facility’s ability to 

meet increases in market demand. 

EPA is not making a final 

confidentiality determination for data 

elements that describe the amount and 

type of coal-based liquids and 

petroleum products reported by 

importers (subparts LL and MM). As 

discussed in Section II.C.3 of this 

preamble, EPA was not able to make a 

determination at this time that would 

apply to all importers of coal-based 

liquids and petroleum products because 

the determination would vary 

depending on importer-specific 

characteristics (e.g., whether the report 

to EIA, what type(s) of products they 

import). For the detailed discussion of 

the rationale for this decision, see EPA’s 

response in Section II.C.3 of this 

preamble related to Suppliers of CoalBased Liquid Fuels and Suppliers of 

Petroleum Products (Subpart LL and 

Subpart MM). 

5. Identification Information Category 

Comment: Some commenters agreed 

with EPA’s proposed determination that 

the data in this category do not qualify 

for confidential treatment. However, a 

few commenters disagreed with our 

proposal. Commenters were concerned 

that disclosure of certain data elements 

in this category, particularly the 

company name and address, would 

enable competitors to determine the 

quantity and type of materials imported/ 

exported by a particular company. 

Another commenter stated that the 

competitive position of businesses 

would be harmed if the name and 

address of U.S. parent companies and 

their percentage of ownership interest is 

made publically available. These 

commenters argued that this 

information could be used together with 

other data to determine market share 

and other competitive information. 

Response: We disagree with those 

commenters who believe the disclosure 

of the data in this category would likely 

cause competitive harm to suppliers. 

We are not aware of any situations, nor 

did the commenters provide any 

examples, in which the name, address, 

and U.S. parent company of an importer 

or exporter has been or could be linked 

with other available data to disclose 

sensitive business information. Further, 

reporters eligible to hold confidential 

the quantities and compositions of 

imported materials (such as those 

reporters importing fluorinated GHGs 

under 40 CFR part 98, subpart OO) may 

submit manifest confidentiality requests 

to the U.S. Customs and Border 

Protection (CBP) to protect as 

confidential its name and address on 

customs forms. Therefore, competitors 

would not be able to link customs data 

on the quantity and type of material 

imported with the name and address of 

the Part 98 reporter. For the reasons 

stated above, we conclude that our 

proposed non-CBI determination for this 

data category is appropriate. 

6. Unit/Process Operating 

Characteristics Category 

New Data Elements: EPA has added 

one new data element to this data 

category for suppliers subject to subpart 

PP. This data element requires 

production facilities to report the 

location of each flow meter in relation 

to the point of segregation (reported 

under 40 CFR 98.426(c)(2)(iv)). The data 

element was added by the amendments 

published on December 17, 2010 (75 FR 

79092) and was not included in the July 

2010 CBI proposals. This data element 

is exactly the same type of location 

information as required by other data 

elements already assigned to this data 

category (e.g., the location of each 

volumetric flow meter in the process 

chain in relation to the points of CO2

stream capture, dehydration, 

compression, and other processing 

reported under 40 CFR 98.426(b)(7)). In 

the CBI proposal, we explained that 

disclosure of such location information 

is not likely to cause competitive harm 

to the reporting facilities because it does 

not provide descriptions or diagrams on 

the design or operation of a facility’s 

production process or reveal any other 

potentially sensitive information about 

any facility. Therefore, we have 

determined in this final action that the 

data elements in the Unit/Process 

Operating Characteristics category 

relative to location information, 

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including this new data element, are not 

CBI. 

Comment: For this data category, EPA 

proposed that only one data element 

(the estimated percent transformation 

efficiency reported under 40 CFR part 

98, subpart OO for fluorinated 

production process) would be eligible 

for confidential treatment. Many 

commenters agreed that most data in 

this category do not qualify for 

confidential treatment. Several 

commenters also supported EPA’s 

proposed determination that the 

estimated percent transformation 

efficiency of each production process 

for the fluorinated GHG produced under 

40 CFR part 98, subpart OO is CBI. 

Other commenters disagreed with our 

proposal and recommended that all 

unit/process operating characteristics 

should be considered CBI. Most of these 

commenters provided broad statements 

that operating data provides competitors 

with sensitive business information, but 

did not identify which specific data 

elements or explain how their 

disclosure would cause competitive 

harm to reporters. However, a few 

commenters provided more detailed 

rationales regarding specific data 

elements. One commenter believes the 

subpart OO data element concerning the 

date on which a change to a fluorinated 

GHG product occurs should be kept 

confidential because the dates would 

indicate to competitors that the reporter 

was making changes to their product. 

Another commenter believes the dates 

on which fluorinated GHGs are 

imported and/or exported and the port 

of entry and port of export should be 

entitled to confidential treatment 

because this information could be used 

in conjunction with customs records to 

identify the amount of material 

imported/exported by the reporter. This 

commenter added that to protect 

confidential and competitively sensitive 

information, importers and exporters 

can submit manifest confidentiality 

requests to U.S. CBP. According to the 

commenter, CBP allows importers and 

exporters to claim their names and 

addresses as confidential but not 

information on the material imported/ 

exported, the port, or the date. This 

commenter argued that disclosure of 

such import/export data would place 

businesses required to report under Part 

98 at a significant competitive risk and 

argued that information on the date and 

port of import/export could be used by 

competitors (both domestic and 

international) to discern import and 

export practices, and potentially 

shipment data. 

One commenter stated that certain 

information submitted as part of BAMM 

extension requests was sensitive 

information requiring confidential 

treatment. This commenter specifically 

identified the following data elements 

from BAMM extension requests as 

confidential: The reason for the 

extension request (40 CFR 

98.3(d)(2)(ii)(C)) and the planned 

installation date of monitoring 

equipment (40 CFR 98.3(d)(2)(ii)(F)). 

This commenter stated that this 

information is not available from other 

public sources and, if disclosed, would 

cause competitive harm by enabling 

competitors to determine a company’s 

ability to capitalize on specific market 

opportunities and allowing competitors 

to target markets based on weaknesses 

and vulnerabilities. They further noted 

that information on future shutdowns 

would allow competitors to increase 

production during a reporter’s 

shutdown and would likely cause 

serious harm to the reporter’s 

competitive position. 

Response: Except as described below, 

we have finalized the proposed 

confidentiality determinations for the 

data elements in this category. In 

response to comments received, we 

have determined that the following data 

elements in this data category are CBI: 

• Dates of import/export (40 CFR part 

98, subpart OO). 

• Ports of import/export (40 CFR part 

98, subpart OO). 

• The reason for submitting a BAMM 

extension request (40 CFR part 98, 

subpart A). 

• The reason why equipment was not 

or could not be obtained or installed 

during a planned shutdown between 

October 30, 2009 and April 1, 2010 (as 

reported in a BAMM extension request 

(40 CFR part 98, subpart A). 

• Planned installation date for 

monitoring equipment as reported in a 

BAMM extension request (40 CFR 

98.3(d)(2)(ii)(F))). 

• Anticipated date on which facility 

will begin using the full monitoring 

methods in the rule (40 CFR 

98.3(d)(2)(ii)(F)). 

At the time of the July 10 CBI 

proposals, we were not aware of any 

potential competitive harm that would 

likely result from the disclosure of the 

dates on which fluorinated GHGs are 

imported and/or exported and the port 

of entry and export (reported under 40 

CFR part 98, subpart OO). Since then, 

we have learned that release of these 

data elements to the public could allow 

competitors to link customs records on 

quantities and product composition 

with the import and export data 

reported under Part 98, thus allowing 

competitors to determine market share 

and devise marketing strategies to 

undermine or weaken a competitor’s 

position. Because disclosure of these 

data elements is likely to cause the 

substantial harm described above to 

suppliers reporting these data under 

Part 98, we have determined in this 

final action that these data elements 

qualify as CBI. 

EPA agrees with commenters who 

recommended that certain data elements 

submitted as part of BAMM extension 

requests are eligible for confidential 

treatment. At the time of proposal, we 

believed the reason for requesting a 

BAMM extension (reported under 40 

CFR 98.3(d)(2)(ii)(C)) and the reason 

why equipment was not (or could not 

be) installed (reported under 40 CFR 

98.3(d)(2)(ii)(E)) would be generic 

information that would not reveal any 

sensitive operating information. 

However, since proposal EPA has 

reviewed a number of BAMM extension 

requests and determined that they 

contain more detailed information, such 

as process diagrams and operational 

information, than we had previously 

anticipated. We also note that many 

facilities have claimed these data as CBI 

because they provide insight into 

facility-specific operating conditions or 

process design that are not available 

from other sources and would harm 

their competitive position if released. 

We also agree with those commenters 

that stated that the planned installation 

date and the date of anticipated startup 

(reported under 40 CFR 98.3(d)(2)(ii)(F)) 

provides competitive information 

regarding future process shutdowns. 

Based on new information received in 

comments, we have concluded that 

these data elements could provide 

information about the operation of a 

facility that can be used by competitors 

to anticipate and potentially benefit 

from future decreases in product 

supply. For example, a competitor could 

increase its own market share by 

increasing production or increase its 

profits by increasing prices during these 

periods. Based on this new information, 

EPA has determined that these data 

elements qualify as CBI. 

Although some commenters claimed 

that the data element concerning the 

date on which a change to a fluorinated 

GHG product occurs (40 CFR 98.416(f)) 

should be confidential, they did not 

provide rationale or supporting 

information that enable us to assess 

their claim. Because we are not aware of 

any situations under which public 

disclosure of this data element is likely 

to cause substantial harm to suppliers 

reporting these data elements, our 

position regarding this data element 

remains unchanged in this final action. 

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7. Calculation, Test, and Calibration 

Methods Category 

Comment: We received several 

comments agreeing with EPA that 

disclosing the calculation, test, and 

calibration methods would be unlikely 

to reveal proprietary business 

information. No commenters disagreed 

with our proposed determination that 

the data elements in this category are 

not CBI. 

Response: We appreciate the 

commenters’ support of our proposed 

non-CBI determination for this data 

category. In light of these comments, we 

conclude that our proposed non-CBI 

determination for this data category (as 

described in 75 FR 39126, July 7, 2010) 

is appropriate and finalize that 

determination in this action. 

8. Data Elements for Periods of Missing 

Data That Are Not Related to 

Production/Throughput 

Comment: We received comments 

supporting EPA’s proposed 

determination that the data in this data 

category are not CBI. No commenters 

opposed our proposed determination 

that the data in this category are not 

CBI. 

Response: We appreciate the 

commenters’ support of our proposed 

determination for this data category. In 

light of these comments, we conclude 

that our proposed non-CBI 

determination for this data category (as 

described in 75 FR 39128, July 7, 2010) 

is appropriate and finalize that 

determination in this action. 

9. Emission Factor Category 

Comment: Several commenters agreed 

with EPA’s proposed determination that 

the data in this data category qualify for 

confidential treatment. These 

commenters agreed with EPA’s 

proposed determination that disclosure 

of this data would substantially harm 

the competitive position of suppliers 

and therefore it should be kept 

confidential. Other commenters 

disagreed with EPA’s proposed CBI 

determination, arguing that most of the 

Part 98 supplier data should be 

considered non-CBI. However, these 

commenters did not provide any 

specific rationale or information 

explaining why any data element in this 

data category should be considered nonCBI, but instead provided only general 

statements that making data available to 

the public was consistent with the CAA 

and that it was the purpose of the 

GHGRP to make GHG emissions data 

available to the public. 

Response: Although some 

commenters disagreed with EPA’s 

proposed determination that the data 

elements in this data category qualify 

for confidential treatment, they did not 

provide any rationale or information for 

us to evaluate whether the proposed CBI 

determination may not be appropriate 

for any data elements in this data 

category. Specifically, the commenters 

did not provide any information to 

support why data in this particular 

category would meet the definition of 

emission data. Neither did the 

commenter explain why any data 

element in this category does not qualify 

as CBI. For instance, the commenter did 

not claim that any data element in this 

category is already publicly available or 

disagree with EPA’s assessment that 

disclosure of these data elements would 

likely cause competitive harm. Further, 

the commenters who supported our 

proposed determination explained that 

the information is held confidential by 

companies and that disclosure would 

cause substantial harm to the 

competitive position. The commenters 

who supported our proposed 

determination agreed with EPA’s 

rationale described in Section II.D.8 of 

the July 7, 2010 CBI proposal that 

emission factors can be used to backcalculate the carbon share of the 

supplier’s products and raw materials. 

In light of the above, we conclude that 

our proposed determination for this data 

category is appropriate and finalize the 

determination in this action. 

10. Amount and Composition of 

Materials Received Category 

New Data Elements: 

EPA has added the following six new 

data elements to this data category: 

• EIA crude stream code (40 CFR 

98.396(a)(20)(v)). 

• Crude stream name (40 CFR 

98.396(a)(20)(v)). 

• Generic name for crude stream (40 

CFR 98.396(a)(20)(vi)). 

• EIA two-letter country or state 

production area code for batch (40 CFR 

98.396(a)(20)(vi)). 

• Volume of crude oil in barrels 

injected into a crude oil supply or 

reservoir (40 CFR 98.396(a)(22)). 

• Indication of whether the material 

is a blended non-crude feedstock or 

blended product (40 CFR 

98.396(d)(1)(iii)). 

The data elements were added by the 

amendments published on October 28, 

2010 (75 FR 66434) and were not 

included in the July 2010 CBI proposals. 

The data elements require the reporting 

of information about the composition 

and type of raw materials used by 

facilities that produce products listed in 

subpart MM. They are the same type of 

data as other data elements already 

included in this data category in the CBI 

proposals. For example, 40 CFR 

98.396(a)(20)(vi) is the same type of data 

as 40 CFR 98.396(a)(20)(iv), which 

requires the country of origin the crude 

oil batch to be reported, and 40 CFR 

98.396(a)(22) is the same type of data as 

40 CFR 98.406(a)(2), which requires the 

quantity of ethane product received by 

natural gas fractionators. In the July 

2010 CBI proposals, we explained that 

disclosure of the data elements in this 

category would likely cause substantial 

competitive harm to the reporting 

facilities. For example, we explained 

how information about a reporter’s raw 

material source could be used to discern 

design or operating limitations (e.g., 

show that a facility only processes 

certain types of crude oil) or could be 

used to develop competitive strategies 

to increase the cost of certain types of 

raw materials. In other cases, the 

amount of raw material consumed can 

be used in combination with production 

data to infer the operating efficiency 

(e.g., amount of product produced per 

unit of raw material consumed), which 

would allow competitors to infer 

production costs and pricing structures 

(see 75 FR 39127, July 7, 2010). Because 

the CBI proposal included data elements 

that are the same in type and 

characteristic as the six new data 

elements, we conclude that the proposal 

adequately addresses these six data 

elements and that a separate CBI 

proposal for these data elements is not 

necessary. For the reasons set forth in 

this section and in Section II.C.9 of the 

July 7, 2010 CBI proposal, we have 

determined in this final action that the 

data elements in this data category 

qualify as CBI. This determination 

applies to all the data elements in this 

category, including the six new data 

elements listed above. 

Comment: Most commenters agreed 

with EPA’s proposed determination that 

the amount and composition of 

materials received by suppliers qualify 

for confidential treatment. These 

commenters agreed that, if released, the 

amount and composition of materials 

received by suppliers would likely 

cause substantial harm to the 

competitive positions of businesses 

reporting these data because it would 

reveal sensitive information about the 

manufacturing process or the 

composition of the product. Although 

most commenters supported EPA’s 

proposed CBI determination for this 

category, some commenters disagreed. 

These commenters argued that all or 

most Part 98 data elements should be 

made available to the public. These 

commenters did not provide any 

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information explaining why any specific 

data element in this data category 

should be considered emission or 

otherwise non-CBI, but instead 

submitted general statements that 

disclosure of these data would be 

consistent with the CAA and the 

GHGRP. 

Response: Although some 

commenters disagreed with EPA’s 

proposed determination that the data 

elements in this data category qualify 

for confidential treatment, they did not 

provide any rationale or information for 

us to evaluate whether the proposed CBI 

determination may not be appropriate 

for any data elements in this data 

category. Specifically, the commenters 

did not provide any information to 

support why data in this particular 

category would meet the definition of 

emission data. Neither did the 

commenter explain why any data 

element in this category does not qualify 

as CBI. For instance, the commenters 

did not claim that any data element in 

this category is already publicly 

available, nor did they disagree with 

EPA’s assessment that disclosure of 

these data elements would likely cause 

competitive harm. The commenters who 

supported our proposed determination 

agreed with EPA’s rationale described in 

Section II.D.9 of the July 2010 CBI 

proposal that disclosure of data 

elements in this category is likely to 

cause substantial harm to reporters. In 

light of the above, we conclude that our 

proposed determination for this data 

category is appropriate and are 

finalizing the determination in this 

action. 

11. Data Elements for Periods of Missing 

Data That Are Related to Production/ 

Throughput 

Comment: Several commenters agreed 

with EPA’s proposed determination that 

the data in this data category qualify for 

confidential treatment. These 

commenters expressed agreement with 

EPA’s proposed determination that 

disclosure of this data would 

substantially harm the competitive 

position of suppliers and therefore 

should be kept confidential. 

Although most commenters supported 

EPA’s proposed CBI determination for 

this category, some commenters 

disagreed. These commenters argued 

that all or most Part 98 data elements 

should be made available to the public. 

These commenters did not provide any 

rationale explaining why any specific 

data element in this data category 

should be considered emission data or 

otherwise non-CBI, but instead 

submitted general statements that 

disclosure of these data would be 

consistent with the CAA and the 

GHGRP. 

Response: Although some 

commenters disagreed with EPA’s 

proposed determination that the data 

elements in this data category qualify 

for confidential treatment, they did not 

provide any rationale or information for 

us to evaluate whether our proposed 

determination is not appropriate for any 

data elements in this data category. 

Specifically, the commenters did not 

provide any information to support why 

data in this particular category would 

meet the definition of emission data. 

Neither did the commenter explain why 

any data element in this category does 

not qualify as CBI. For instance, the 

commenters did not claim that any data 

element in this category is already 

publicly available, nor did they disagree 

with EPA’s assessment that disclosure 

of these data elements would likely 

cause competitive harm. Further, the 

commenters who supported our 

proposed determination agreed with 

EPA’s rationale described in Section 

II.D.10 of the July 2010 CBI proposal 

that the data elements in this category 

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. We therefore conclude that 

our proposed determination for this data 

category is appropriate and finalize the 

determination in this action. 

12. Supplier Customer and Vendor 

Information Category 

Comment: Several commenters agreed 

with EPA’s proposed determination that 

the data elements in this category 

qualify for confidential treatment. Some 

stated that the data was not publicly 

available and that they take steps to 

ensure the information is maintained as 

confidential. Several agreed with EPA’s 

proposed determination that disclosure 

of these data elements would 

substantially harm the competitive 

position of suppliers. One stated that 

customers and vendors often require 

such data to be kept confidential and 

that in some cases this requirement is 

included in legal contracts, such as 

agreements for purchase or supply. 

Others stated that the identity of a 

vendor is proprietary information since 

it would allow competitors to determine 

customer base and identify large 

customers. 

Although most commenters supported 

EPA’s proposed CBI determination for 

this category, some commenters 

disagreed. These commenters argued 

that all or most of the Part 98 data 

should be considered non-CBI. These 

commenters did not provide any 

specific rationale regarding the data 

elements in this category, but instead 

submitted general statements that 

disclosure of these data would be 

consistent with the CAA and the 

GHGRP. 

Response: Although a few 

commenters disagree with EPA’s 

proposed determination that the data 

elements in this category are eligible for 

confidential treatment, they did not 

provide any rationale or information for 

us to evaluate why any data element in 

this category should be considered nonCBI. Specifically, they did not provide 

any information to support why data in 

this particular category would meet the 

definition of emission data. The 

commenters did not claim that any data 

element in this category is already 

publicly available, nor did they disagree 

with EPA’s assessment that disclosure 

of these data elements would likely 

cause competitive harm. Furthermore, 

commenters who supported our 

proposed determination explained that 

the information is held confidential by 

companies and that disclosure would 

cause substantial harm to the 

competitive position of their company 

by revealing information about customer 

base and in some cases the identity of 

individual customers, which would 

enable competitors to develop 

marketing strategies designed to steal 

these customers. We therefore conclude 

that our proposed determination for this 

data category is appropriate and finalize 

the determination in this action. 

13. Process-Specific and Vendor Data 

Submitted in BAMM Extension 

Requests Category 

Comment: Only a few commenters 

submitted comments on this data 

category. The majority of those 

providing comments agreed with EPA’s 

proposed determination that disclosure 

of the data in this category would 

substantially harm the competitive 

position of reporters and that the data in 

this category therefore qualify for 

confidential treatment under 40 CFR 

2.208. Some of these commenters also 

confirmed that they take measures to 

keep the data secret and that the 

information is not available from other 

sources. 

Although some commenters 

supported EPA’s proposed CBI 

determination for this category, other 

commenters disagreed. These 

commenters argued that all or most of 

the Part 98 data should be considered 

non-CBI. These commenters did not 

provide any specific rationale regarding 

the data elements in this category, but 

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instead submitted general statements 

that disclosure of these data would be 

consistent with the CAA and the 

GHGRP. 

Response: While some commenters 

disagreed with EPA’s proposed 

determination that this data is eligible 

for confidential treatment, they did not 

provide specific rationale or information 

for us to evaluate whether our proposed 

determination may not be appropriate 

for any data element in this category. 

Specifically, they did not provide any 

information to support why data in this 

particular category would meet the 

definition of emission data. Neither did 

the commenter explain why any data 

element in this category does not qualify 

as CBI. For instance, they did not claim 

that any data element in this category is 

already publicly available, nor did they 

disagree with EPA’s assessment that 

disclosure of these data elements would 

likely cause competitive harm. 

Furthermore, the commenters who 

supported our proposed determination 

explained that the information is held 

confidential by companies and 

confirmed that disclosure of the data 

elements in this category could divulge 

sensitive information about specific 

processes that would likely cause 

substantial harm to reporters. We 

therefore conclude that our proposed 

determination for this data category is 

appropriate and finalize the 

determination in this action. 

D. Amendment to 40 CFR Part 2 

Addressing Treatment of Part 98 Data 

Elements 

The July 7, 2010 CBI proposal 

included proposed amendments to 40 

CFR 2.301 (Special rules governing 

certain information obtained under the 

Clean Air Act) that would establish 

procedures for EPA’s handling of data 

collected under 40 CFR part 98 in 

accordance with EPA’s final 

confidentiality determinations for the 

data. In this action, EPA finalizes the 

proposed amendment without change. 

The final amendment authorizes EPA 

to release Part 98 data elements 

determined to be ‘‘emission data’’ or not 

otherwise entitled to confidential 

treatment without further procedural 

requirements. The final amendment also 

sets forth procedures for the treatment 

of information in Part 98 determined to 

be CBI. These procedures are similar to 

and consistent with the existing 40 CFR 

part 2 procedures for handling 

information determined to be CBI. 

1. Summary of Comments and 

Responses on the Amendments to 40 

CFR Part 2 

Comment: One commenter 

recommended EPA revise 40 CFR 

2.301(d) to include provisions either 

establishing a time limit on the duration 

of CBI determination or establishing a 

process by which data elements 

designated as CBI could be reclassified. 

Another commenter argued that if the 

Office of General Counsel makes a 

determination that information is no 

longer CBI, companies should be 

afforded the same opportunity to 

comment as provided under 40 CFR 

2.204(e) and the opportunity for judicial 

challenge of the Agency’s final 

determination, as provided under 40 

CFR 2.205(f). 

Response: As discussed in Section 

II.A.8 of this preamble (Time Limits on 

Confidentiality Determinations), the 

commenters did not provide supporting 

information explaining how data 

determined to be CBI in this action will 

become less sensitive over any specific 

period of time such that EPA should 

limit its CBI determination for such data 

to that time period. We note that other 

CBI determinations made by EPA are 

generally not time limited. Further, the 

final amendment to 40 CFR 2.301 

provides procedures for EPA to modify 

a prior confidentiality determination 

(see 40 CFR 2.301(d)(4)) should certain 

Part 98 data be no longer entitled to 

confidential treatment because of a 

change in the applicable law or newly 

discovered or changed facts. This 

provision reflects the requirements in 

CBI regulations at 40 CFR 2.205(h) for 

modifying prior determinations for 

other information. For the reasons stated 

above, we do not believe that a time 

limit on the duration of CBI 

determinations made in this action is 

justified or necessary. 

Further, consistent with 40 CFR 

2.204(e), we provided reporters notice 

and an opportunity to comment by 

making confidentiality determinations 

for Part 98 data through notice and 

comment rulemaking. In this action 

stakeholders were given the opportunity 

to submit CBI claims and supporting 

documentation during the 60-day 

comment period for the proposed CBI 

determinations. We received no specific 

comment or information, nor do we 

have any reason to believe, that 

reporting facilities would have had any 

new or different information to 

substantiate their claims at the time they 

submit the data elements as opposed to 

that available during the public 

comment period for the CBI proposals. 

Further, during the comment period, the 

reporting facilities were able to consider 

the Agency’s proposed confidentiality 

determinations in preparing their CBI 

claims and supporting documentations; 

businesses do not generally have such 

insight into EPA’s positions when 

substantiating CBI claims under the 

existing CBI regulations. Lastly, as 

provided in the Judicial Review section 

of this notice, this final action is subject 

to judicial review under CAA section 

307(b). 

III. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the 

amendments to 40 CFR part 2 are a 

‘‘significant regulatory action’’ because 

they raise novel legal or policy issues. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

The amendments to 40 CFR part 2 do 

not impose any new information 

collection burden. The amendments are 

administrative in nature and do not 

increase the recordkeeping and 

reporting burden associated with Part 

98. However, the OMB has previously 

approved the information collection 

requirements contained in the Part 98 

regulations promulgated on October 30, 

2009 under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0629. EPA has 

also submitted the Information 

Collection Request requirements for four 

additional Part 98 subparts promulgated 

on July 12, 2010 to OMB for approval 

(see 75 FR 39756). The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

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30816 Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of the 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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. This definition of 

small entity is consistent with the 

definition of small entity used for Part 

98. 

After considering the economic 

impacts of today’s amendments to 40 

CFR part 2 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 

Part 98 and affected by the amendments 

to 40 CFR part 2 include small 

businesses across all sectors of the 

economy encompassed by Part 98, small 

governmental jurisdictions, and small 

non-profits. An analysis of impacts on 

small entities was conducted at 

promulgation of Part 98 and the results 

are presented in the Section VIII.C of the 

preamble to the final Part 98 (74 FR 

56369, October 30, 2009). Subsequent 

small entity analyses for additional Part 

98 subparts were conducted and the 

results presented in: Section IV.D of the 

preamble to ‘‘Mandatory Reporting of 

Greenhouse Gases From Magnesium 

Production, Underground Coal Mines, 

Industrial Wastewater Treatment, and 

Industrial Waste (75 FR 39736, July 12, 

2010); Section IV.D of the preamble to 

‘‘Mandatory Reporting of Greenhouse 

Gases: Additional Sources of 

Fluorinated GHGs’’ (75 FR 74744, 

December 1, 2010); Section III.D of the 

preamble to ‘‘Mandatory Reporting of 

Greenhouse Gases: Injection and 

Geologic Sequestration of Carbon 

Dioxide’’ (75 FR 75060, December 1, 

2010); Section III.D of the preamble to 

‘‘Mandatory Reporting of Greenhouse 

Gases: Petroleum and Natural Gas 

Systems’’ (75 FR 74458, November 30, 

2010). These analyses showed that the 

cost-to-sales ratio, comparing the 

compliance costs for affected industry 

sectors with industry-specific data on 

revenues for small businesses, are less 

than one percent for establishments 

owned by small businesses that EPA 

considers most likely to be covered by 

the reporting program. For small 

governments, EPA compared the 

average costs of compliance for 

combustion, local distribution 

companies, and landfills to average 

revenues and found that the costs of 

compliance with the reporting rule 

constitute less than one percent of 

average revenues for the smallest 

category of governments (i.e., those with 

fewer than 10,000 people). We 

concluded from these analyses that Part 

98 did not have a significant impact on 

a substantial number of small entities. 

This rule will not impose any new 

requirement on small entities that are 

not currently required by Part 98. The 

amendments to 40 CFR part 2 are 

administrative in nature and do not 

increase the costs for small entities to 

comply with Part 98. Therefore, this 

rule does not have a significant 

economic impact on a substantial 

number of small entities. 

Although this final rule will not have 

a significant economic impact on a 

substantial number of small entities, 

EPA nonetheless has taken several steps 

to reduce the impact of Part 98 on small 

entities. When we developed Part 98, 

we set applicability thresholds that 

reduced the number of small businesses 

required to report. We also did not 

require facilities to install CEMS if they 

did not already have them, and 

developed tiered methods that are 

simpler and less burdensome for some 

source categories. We also considered 

public comments submitted by small 

businesses and organizations that 

include small business members. After 

promulgation of Part 98, we provided a 

range of compliance tools, online 

training webinars, and other compliance 

assistance of use to small businesses. 

EPA continues to conduct significant 

outreach on the mandatory GHG 

reporting rule and maintains an ‘‘open 

door’’ policy for stakeholders to help 

inform EPA’s understanding of key 

issues for industries and others. 

D. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires Federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on State, local, and Tribal 

governments and the private sector. 

Federal agencies must also develop a 

plan to provide notice to small 

governments 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 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, or Tribal 

governments, in the aggregate, or the 

private sector in any one year. The 

amendments are administrative in 

nature and do not increase the costs of 

compliance for facilities to comply with 

Part 98. Thus, the amendments to 40 

CFR part 2 are not subject to the 

requirements of sections 202 or 205 of 

the UMRA. 

In developing Part 98, EPA consulted 

with small governments pursuant to a 

plan established under section 203 of 

UMRA to address impacts of regulatory 

requirements in the rule that might 

significantly or uniquely affect small 

governments. For a summary of EPA’s 

consultations with State and/or local 

officials or other representatives of State 

and/or local governments in developing 

Part 98, see Section VIII of the preamble 

to the final Part 98 (74 FR 56370). 

E. Executive Order 131132: Federalism 

The amendments to 40 CFR part 2 do 

not have federalism implications. They 

will not have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government, as 

specified in Executive Order 13132. 

However, for a more detailed discussion 

about how Part 98 relates to existing 

State programs, please see Section II of 

the preamble to the final Part 98 rule (74 

FR 56266). 

The amendments to 40 CFR part 2 are 

administrative in nature and apply to 

data reported under Part 98 by facilities 

that directly emit GHGs or supply fuel 

or chemicals that may emit GHGs when 

used. Part 98 does not apply to 

governmental entities unless the 

government entity owns a facility that 

directly emit GHGs above threshold 

levels such as large stationary 

combustion sources or landfills, so 

relatively few government facilities 

would be affected. The amendments to 

40 CFR part 2 also do not limit the 

power of States or local governments to 

collect GHG data or regulate GHG 

emissions. Thus, Executive Order 13132 

does not apply to this action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicited comments on the 

proposed action from State and local 

officials. For a discussion of how Part 98 

relates to existing State programs and a 

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Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 30817 

summary of EPA’s consultations with 

State and local government 

representatives during the development 

of Part 98, see Sections II and VIII of the 

preamble for the final Part 98 (74 FR 

56260, October 30, 2009), respectively. 

In addition, after the July 7, 2010 CBI 

proposal, EPA held meetings with 

associations including State and local 

agencies, and considered public 

comments submitted by such agencies 

in developing the final confidentiality 

determinations and 40 CFR part 2 

amendments. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action is not expected to have 

Tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because this action 

is administrative in nature and does not 

impose any new requirements on 

Tribes. Thus, Executive Order 13175 

does not apply to this action. However, 

EPA consulted with Tribal officials in 

developing Part 98. For a summary of 

EPA’s consultations with Tribal 

governments and representatives in 

developing Part 98, see Section VIII.F of 

the preamble to the final Part 98 (74 FR 

56371, October 30, 2009). 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 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 Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 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 

amendments to 40 CFR part 2 are 

administrative in nature and therefore 

do not have any adverse impacts on 

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 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

The amendments do not involve 

technical standards. Therefore, EPA did 

not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 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 United States. 

EPA has determined that this final 

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 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. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the U.S. prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective July 

25, 2011. 

List of Subjects in 40 CFR Part 2 

Environmental protection, 

Administrative practice and procedure, 

Reporting and recordkeeping 

requirements. 

Dated: May 19, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is amended as 

follows: 

PART 2—[AMENDED] 

■ 1. The authority citation for part 2 

continues to read as follows: 

Authority: 5 U.S.C. 301, 552 (as amended), 

553; secs. 114, 301 and 307, Clean Air Act 

(as amended) (42 U.S.C. 7414, 7601, 7607). 

Subpart B—[Amended] 

■ 2. Section 2.301 is amended by 

revising paragraph (c) and adding 

paragraph (d) to read as follows: 

§ 2.301 Special rules governing certain 

information obtained under the Clean Air 

Act 

* * * * * 

(c) Basic rules that apply without 

change. Except as otherwise provided in 

paragraph (d) of this section, §§ 2.201 

through 2.207, § 2.209, and §§ 2.211 

through 2.215 apply without change to 

information to which this section 

applies. 

(d) Data submitted under 40 CFR part 

98. (1) Sections 2.201 through 2.215 do 

not apply to data submitted under 40 

CFR part 98 that EPA has determined, 

pursuant to section 114(c) of the Clean 

Air Act and 5 U.S.C. 553(c), to be either 

of the following: 

(i) Emission data. 

(ii) Data not otherwise entitled to 

confidential treatment pursuant to 

section 114(c) of the Clean Air Act. 

(2) Except as otherwise provided in 

paragraphs (d)(2) and (d)(4) of this 

section, §§ 2.201 through 2.215 do not 

apply to data submitted under 40 CFR 

part 98 data that EPA has determined, 

pursuant to section 114(c) of the Clean 

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

entitled to confidential treatment. EPA 

shall treat that information as 

confidential in accordance with the 

provisions of § 2.211, subject to 

paragraph (d)(4) of this section and 

§ 2.209. 

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30818 Federal Register / Vol. 76, No. 102 / Thursday, May 26, 2011 / Rules and Regulations 

(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: 

(i) EPA determines, pursuant to 

section 114(c) of the Clean Air Act and 

5 U.S.C. 553(c), that the information is 

emission data or data not otherwise 

entitled to confidential treatment under 

section 114(c) of the Clean Air Act. 

(ii) The Office of General Counsel 

issues a final determination, based on 

the criteria in § 2.208, stating that the 

information is no longer entitled to 

confidential treatment because of 

change in the applicable law or newlydiscovered or changed facts. Prior to 

making such final determination, EPA 

shall afford the business an opportunity 

to submit comments on pertinent issues 

in the manner described by §§ 2.204(e) 

and 2.205(b). If, after consideration of 

any timely comments submitted by the 

business, the Office of General Counsel 

makes a revised final determination that 

the information is not entitled to 

confidential treatment under section 

114(c) of the Clean Air Act, EPA will 

notify the business in accordance with 

the procedures described in 

§ 2.205(f)(2). 

* * * * * 

[FR Doc. 2011–12930 Filed 5–25–11; 8:45 am] 

BILLING CODE 6560–50–P 

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