[Federal Register Volume 75, Number 129 (Wednesday, July 7, 2010)]
[Proposed Rules]
[Pages 39094-39132]
[FR Doc No: 2010-16317]

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Part II

Environmental Protection Agency

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40 CFR Part 2

Proposed Confidentiality Determinations for Data Required Under the
Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to
Special Rules Governing Certain Information Obtained Under the Clean
Air Act; Proposed Rule

Federal Register / Vol. 75 , No. 129 / Wednesday, July 7, 2010 /
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

[EPA-HQ-OAR-2009-0924; FRL-9171-2]
RIN 2060-AQ04

Proposed Confidentiality Determinations for Data Required Under
the Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to
Special Rules Governing Certain Information Obtained Under the Clean
Air Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to determine in this action the confidentiality
status of data required to be reported under the Mandatory Greenhouse
Gas Reporting Rule. This action describes the data categories EPA has
developed for the Mandatory Greenhouse Gas Reporting Rule data elements
and EPA's proposed confidentiality determination for each category. In
addition, this action includes EPA's proposed amendment to Special
rules governing certain information obtained under the Clean Air Act.
The proposed amendment would authorize EPA to release or withhold as
confidential reporting elements in the Mandatory Greenhouse Gas
Reporting Rule according to the determinations made in a final action
without taking certain additional procedural steps currently required.
This action also solicits comments on several key issues related to the
proposed confidentiality determinations and amendment.

DATES: Comments. Comments must be received on or before September 7,
2010.
    Public Hearing. EPA does not plan to conduct a public hearing
unless requested. To request a hearing, please contact the person
listed in the FOR FURTHER INFORMATION CONTACT section by July 14, 2010.
The hearing will be held on July 22, 2010 in the Washington, DC area
starting at 9 a.m., local time. EPA will provide further information
about the hearing on its Web page if a hearing is requested.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0924, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Environmental Protection Agency, EPA Docket Center
(EPA/DC), Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2009-0924,
1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA
West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC
20004. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0924. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Docket, EPA/
DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is<PHONE_NUMBER>, and the telephone number for the
Air Docket is<PHONE_NUMBER>.

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:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>For technical information, contact the Greenhouse Gas
Reporting Rule Hotline at: http://www.epa.gov/climatechange/emissions/ghgrule_contactus.htm. Alternatively, contact Carole Cook at 202-343-
9263.

SUPPLEMENTARY INFORMATION:
    Additional Information on Submitting Comments: To expedite review
of your comments by Agency staff, you are encouraged to send a separate
copy of your comments, in addition to the copy you submit to the
official docket, to Carole Cook, U.S. EPA, Office of Atmospheric
Programs, Climate Change Division, Mail Code 6207-J, Washington, DC,
20460, telephone<PHONE_NUMBER>, e-mail<EMAIL_ADDRESS>    Regulated Entities. This proposed determination and amendment to 40
CFR 2.301 would affect entities that must submit annual greenhouse gas
(GHG) reports under 40 CFR Part 98. The Administrator determined that
Part 98 is subject to the provisions of Clean Air Act (CAA) section
307(d). See CAA section 307(d)(1)(V) (the provisions of CAA section
307(d) apply to ``such other actions as the Administrator may
determine''). The Mandatory Greenhouse Gas Reporting Rule and this
action affect fuel and chemicals suppliers, and direct emitters of
GHGs. Affected categories and entities include those listed in Table 1
of this preamble:

           Table 1--Examples of Affected Entities by Category
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                                                   Examples of affected
            Category                  NAICS             facilities
------------------------------------------------------------------------
General Stationary Fuel          ..............  Facilities operating
 Combustion Sources.                              boilers, process
                                                  heaters, incinerators,
                                                  turbines, and internal
                                                  combustion engines:
                                            211  Extractors of crude
                                                  petroleum and natural
                                                  gas.
                                            321  Manufacturers of lumber
                                                  and wood products.
                                            322  Pulp and paper mills.
                                            325  Chemical manufacturers.
                                            324  Petroleum refineries,
                                                  and manufacturers of
                                                  coal products.
                                  316, 326, 339  Manufacturers of rubber
                                                  and miscellaneous
                                                  plastic products.
                                            331  Steel works, blast
                                                  furnaces.
                                            332  Electroplating,
                                                  plating, polishing,
                                                  anodizing, and
                                                  coloring.
                                            336  Manufacturers of motor
                                                  vehicle parts and
                                                  accessories.
                                            221  Electric, gas, and
                                                  sanitary services.
                                            622  Health services.
                                            611  Educational services.
Electricity Generation.........          221112  Fossil-fuel fired
                                                  electric generating
                                                  units, including units
                                                  owned by Federal and
                                                  municipal governments
                                                  and units located in
                                                  Indian Country.
Adipic Acid Production.........          325199  Adipic acid
                                                  manufacturing
                                                  facilities.
Aluminum Production............          331312  Primary Aluminum
                                                  production facilities.
Ammonia Manufacturing..........          325311  Anhydrous and aqueous
                                                  ammonia manufacturing
                                                  facilities.
Cement Production..............          327310  Portland Cement
                                                  manufacturing plants.
Electronics Manufacturing......          334111  Microcomputers
                                                  manufacturing
                                                  facilities.
                                         334413  Semiconductor,
                                                  photovoltaic (solid-
                                                  state) device
                                                  manufacturing
                                                  facilities.
                                         334419  LCD unit screens
                                                  manufacturing
                                                  facilities.
                                 ..............  MEMS manufacturing
                                                  facilities.
Ethanol Production.............          325193  Ethyl alcohol
                                                  manufacturing
                                                  facilities.
Ferroalloy Production..........          331112  Ferroalloys
                                                  manufacturing
                                                  facilities.
Fluorinated GHG Production.....          325120  Industrial gases
                                                  manufacturing
                                                  facilities.
Food Processing................          311611  Meat processing
                                                  facilities.
                                         311411  Frozen fruit, juice,
                                                  and vegetable
                                                  manufacturing
                                                  facilities.
                                         311421  Fruit and vegetable
                                                  canning facilities.
Glass Production...............          327211  Flat glass
                                                  manufacturing
                                                  facilities.
                                         327213  Glass container
                                                  manufacturing
                                                  facilities.
                                         327212  Other pressed and blown
                                                  glass and glassware
                                                  manufacturing
                                                  facilities.
HCFC-22 Production and HFC-23            325120  Chlorodifluoromethane
 Destruction.                                     manufacturing
                                                  facilities.
Hydrogen Production............          325120  Hydrogen manufacturing
                                                  facilities.
Iron and Steel Production......          331111  Integrated iron and
                                                  steel mills, steel
                                                  companies, sinter
                                                  plants, blast
                                                  furnaces, basic oxygen
                                                  process furnace shops.
Lead Production................          331419  Primary lead smelting
                                                  and refining
                                                  facilities.
                                         331492  Secondary lead smelting
                                                  and refining
                                                  facilities.
Lime Production................          327410  Calcium oxide, calcium
                                                  hydroxide, dolomitic
                                                  hydrates manufacturing
                                                  facilities.
Magnesium Production...........          331419  Primary refiners of
                                                  nonferrous metals by
                                                  electrolytic methods.
                                         331492  Secondary magnesium
                                                  processing plants.
Municipal Solid Waste Landfills          562212  Solid waste landfills.
                                         221320  Sewage treatment
                                                  facilities.
Nitric Acid Production.........          325311  Nitric acid
                                                  manufacturing
                                                  facilities.
Petroleum and Natural Gas                486210  Pipeline transportation
 Systems.                                         of natural gas.
                                         221210  Natural gas
                                                  distribution
                                                  facilities.
                                            211  Extractors of crude
                                                  petroleum and natural
                                                  gas.
                                         211112  Natural gas liquid
                                                  extraction facilities.
Petrochemical Production.......           32511  Ethylene dichloride
                                                  manufacturing
                                                  facilities.
                                         325199  Acrylonitrile, ethylene
                                                  oxide, methanol
                                                  manufacturing
                                                  facilities.
                                         325110  Ethylene manufacturing
                                                  facilities.
                                         325182  Carbon black
                                                  manufacturing
                                                  facilities.
Petroleum Refineries...........          324110  Petroleum refineries.
Phosphoric Acid Production.....          325312  Phosphoric acid
                                                  manufacturing
                                                  facilities.
Pulp and Paper 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.
Sulfur Hexafluoride (SF6) from           221121  Electric bulk power
 Electrical Equipment.                            transmission and
                                                  control facilities.
Titanium Dioxide Production....          325188  Titanium dioxide
                                                  manufacturing
                                                  facilities.
Underground Coal Mines.........          212113  Underground anthracite
                                                  coal mining
                                                  operations.
                                         212112  Underground bituminous
                                                  coal mining
                                                  operations.
Zinc Production................          331419  Primary zinc refining
                                                  facilities.
                                         331492  Zinc dust reclaiming
                                                  facilities, recovering
                                                  from scrap and/or
                                                  alloying purchased
                                                  metals.
Industrial 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.
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          211111  Coal liquefaction at
 Fuels.                                           mine sites.
Suppliers of Petroleum Products          324110  Petroleum refineries.
Suppliers of Natural Gas and             221210  Natural gas
 NGLs.                                            distribution
                                                  facilities.
                                         211112  Natural gas liquid
                                                  extraction facilities.
Suppliers of Industrial GHGs...          325120  Industrial gas
                                                  manufacturing
                                                  facilities.
Suppliers of Carbon Dioxide              325120  Industrial gas
 (CO2).                                           manufacturing
                                                  facilities.
CO2 ER Projects................             211  Oil and Gas Extraction
                                                  Projects using CO2 ER.
GS Sites.......................             N/A  CO2 geologic
                                                  sequestration
                                                  projects.
------------------------------------------------------------------------

    Table 1 of this preamble is not intended to be exhaustive, but
rather provides a guide for readers regarding facilities likely to be
affected by this action. This table lists the types of facilities that
EPA is now aware could be potentially affected by the reporting
requirements under 40 CFR part 98. Other types of facilities and
suppliers not listed in the table could also be subject to reporting
requirements. To determine whether you are affected by this action, you
should carefully examine the applicability criteria found in 40 CFR
part 98, subpart A. If you have questions regarding the applicability
of this action to a particular facility, consult the person listed in
the preceding FOR FURTHER INFORMATION CONTACT section.
    Many facilities that are affected by Part 98 have GHG emissions
from multiple source categories listed in Table 1 of this preamble.
    Acronyms and Abbreviations. The following acronyms and
abbreviations are used in this document.

BAMM Best Available Monitoring Methods
CAA Clean Air Act
CBI confidential business information
CEMS continuous emission monitoring system(s)
CFR Code of Federal Regulations
DoE Department of Energy
EPCRA Emergency Planning and Community Right to Know Act
EIA Energy Information Administration
EO Executive Order
EOR enhanced oil recovery
EPA U.S. Environmental Protection Agency
GHG greenhouse gas
FOIA Freedom of Information Act
HHV higher heating value
LDC local distribution company
MRV Monitoring, Reporting, and Verification
Mscf thousand standard cubic feet
NEI National Emissions Inventory
NAICS North American Classification System
RFA Regulatory Flexibility Act
SCC Source Classification Code
SIC Standard Industrial Classification Code
TRI Toxics Release Inventory
UMRA Unfunded Mandates Reform Act
U.S. United States

Table of Contents

I. Executive Summary, Background, and General Rationale
    A. Executive Summary
    B. 40 CFR Part 98
    C. Section 114 of CAA, ``Emission Data,'' and Confidentiality
    D. Rationale for Making Confidentiality Determinations Through
This Action
    E. Proposed Rule Amendment Addressing Treatment of Part 98 Data
Elements
    F. Other Relevant Background
    G. Public Comments on the Proposed Mandatory GHG Reporting Rule
II. Proposed Emission Data and Confidentiality Determinations for
Data Required by the Mandatory GHG Reporting Rule in Part 98
    A. Overview
    B. Request for Comments
    C. Direct Emitting Facilities
    D. Suppliers
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    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
IV. Next Steps

I. Executive Summary, Background, and General Rationale

A. Executive Summary

    Under Part 98 of the final Mandatory Greenhouse Gas Reporting Rule
(74 FR 56259, October 30, 2009, and subsequent amendments), hereinafter
referred to as Part 98, EPA will collect data from facilities that
directly emit GHGs from their processes or stationary fuel combustion
sources (``direct emitters'') as well as upstream suppliers of fuels
and industrial GHGs. EPA recognizes the importance of this data and is
committed to transparency and access to this data. Specific data
elements to be reported in the annual reports vary by source category,
and considering the combination of all source categories, there are
over 1,500 individual data elements that are required to be reported in
annual reports. In addition to the data elements required in annual
reports, facilities may also submit other data elements as part of Best
Available Monitoring

Method (BAMM) extension requests, requests for approval of alternative
methods for adipic acid or nitric acid production facilities, or
Monitoring, Reporting and Verification (MRV) Plans for Geological
Sequestration facilities (see proposed 40 CFR part 98, subpart RR, 75
FR 18576, April 12, 2010).
    This action proposes to determine the confidentiality status of the
data elements required to be reported under Part 98 pursuant to CAA
section 114(c).\1\ To make the proposed determinations, EPA has grouped
the Part 98 data elements into 22 data categories (11 for direct
emitters and 11 for suppliers), each containing similar data elements.
The proposed determinations regarding confidential treatment of each
data category are summarized in Table 2 of this preamble for direct
emitters and Table 3 of this preamble for suppliers. Further
background, information on EPA's decision process, and detailed
rationales for the proposed determinations for each data category are
presented in the remainder of this preamble. Public release of the
information collected under Part 98 that are emission data or non-CBI
is important because it ensures transparency and promotes public
confidence in the data. In an effort to promote transparency, EPA
intends to publish on EPA's Web site much of the Part 98 data that we
determine to be emission data or not otherwise entitled to confidential
treatment pursuant to CAA section 114(c). Those data elements that we
determine to be entitled to confidential treatment would not be
published on the Web site or made available to the public through
Freedom of Information Act (FOIA) requests.
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    \1\ The only exception would be supporting documentation
provided by applicants for approval of alternative methods for
adipic acid and nitric acid facilities. EPA recognizes that
supporting documentation included in these applications may include
information that is sensitive or proprietary, such as detailed
process designs or site plans. Because the exact nature of this
documentation cannot be predicted with certainty, EPA proposes to
make case-by-case confidentiality determinations under CAA section
114(c) for any supporting documentation for approval of alternative
methods for adipic acid and nitric acid facilities claimed
confidential by applicants either upon receipt of such information
or upon a request for such information after receipt.

                 Table 2--Summary of Proposed Determinations for Direct Emitter Data Categories
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                                                                Proposed confidentiality determination for data
                                                                           elements in each category
                                                              --------------------------------------------------
                        Data category                                            Data that are    Data that are
                                                                   Emission       not emission     not emission
                                                                   Data\a\        data and not     data but are
                                                                                CBI            CBI \b\
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Facility and Unit Identifier Information.....................               X   ...............  ...............
Emissions....................................................               X   ...............  ...............
Inputs to Emission Equations.................................               X   ...............  ...............
Calculation Methodology and Methodological Tier..............               X   ...............  ...............
Data Elements Reported for Periods of Missing Data that are                 X   ...............  ...............
 Not Inputs to Emission Equations............................
Unit/Process ``Static'' Characteristics that are Not Inputs    ...............               X
 to Emission Equations.......................................
Unit/Process Operating Characteristics that are Not Inputs to  ...............               X   ...............
 Emission Equations..........................................
Test and Calibration Methods.................................  ...............               X   ...............
Production/Throughput Data that are Not Inputs to Emission     ...............  ...............               X
 Equations...................................................
Raw Materials Consumed that are Not Inputs to Emission         ...............  ...............               X
 Equations...................................................
Process-specific and Vendor Data Submitted in BAMM Extension   ...............  ...............               X
 Requests....................................................
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\a\ Under CAA section 114, ``emission data'' is not entitled to confidential treatment. See Section I.C of this
  preamble for further discussion.
\b\ As explained in more detail in Section I.C of the preamble, CAA section 114(c) affords confidential
  treatment to data (except emission data) that are considered trade secret or confidential business information
  (collectively referred to as ``CBI'').

                    Table 3--Summary of Proposed Determinations for Supplier Data Categories
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                                                                Proposed confidentiality determinations for data
                                                                           elements in each category
                                                              --------------------------------------------------
                        Data category                                            Data that are    Data that are
                                                                Emission data     not emission     not emission
                                                                     \a\          data and not     data but are
                                                                                CBI             CBI\b\
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GHGs reported................................................  ...............            \c\X             \c\X
Production/throughput quantities and composition.............  ...............            \c\X             \c\X
Identification information...................................  ...............               X   ...............
Unit/process operating characteristics.......................  ...............            \d\X   ...............
Calculation, test, and calibration methods...................  ...............               X   ...............
Data Elements Reported for Periods of Missing data that are    ...............               X   ...............
 not related to production/throughput or materials received..
Emission factors.............................................  ...............  ...............               X
Amount and composition of materials received.................  ...............  ...............               X
Data Elements Reported for Periods of Missing data that are    ...............  ...............               X
 related to production/throughput or materials received......
Supplier customer and vendor information.....................  ...............  ...............               X
Process-Specific and Vendor Data Submitted in BAMM Extension   ...............  ...............               X
 Requests....................................................
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\a\ Under CAA section 114, ``emission data'' is not entitled to confidential treatment. See Section I.C of this
  preamble for further discussion.
\b\ As explained in more detail in Section I.C of the preamble, CAA section 114(c) affords confidential
  treatment to data (except emission data) that are considered trade secret or confidential business information
  (collectively referred to as ``CBI'').

\c\ EPA proposes to determine that some facility-level and product-specific data elements in this data category
  are entitled to confidential treatment while others are not entitled to confidential treatment. Such data
  elements would be released only in aggregated form. See Table 4 and 5 in Section II.D of this preamble for
  summaries of the proposed confidential determinations and levels of aggregation (for disclosure purposes) for
  these data categories.
\d\ Reported data will be released except for one reported data element for suppliers of industrial GHGs (40 CFR
  part 98, subpart OO) that will be held confidential. See Section II.D.5 of this preamble.

    In this action, EPA is also proposing a regulatory amendment to 40
CFR 2.301 (Special rules governing certain information obtained under
the Clean Air Act) that sets forth specific procedures for handling
Part 98 data. The amendment would allow EPA to release Part 98 data
that are determined to be emission data or not otherwise entitled to
confidential treatment upon finalizing the confidentiality status of
these data. The proposed amendment also sets forth procedures for
treatment of Part 98 data determined to be CBI. The proposed amendment
pertains only to Part 98.
    Lastly, EPA is soliciting comment on several key issues related to
the confidentiality determinations and proposed amendments, such as
whether the proposed data categories are appropriate and reasonable,
whether there are unique circumstances that would warrant a limited
process for a facility to seek reconsideration of a final determination
of non-confidential status when it submits its information, whether
alternative interpretations of emission data would be appropriate, and
whether there are any approaches for delaying publication of data
elements that would ease potential concerns by industry while enabling
EPA to meet our obligations under FOIA and CAA.

B. 40 CFR Part 98

    Part 98 requires reporting of numerous data elements to
characterize, quantify, and verify GHG emissions and related
information. Following proposal of Part 98, EPA received comments
addressing the issue of whether certain data could be entitled to
confidential treatment. Industry commenters generally expressed concern
that they consider much of the information reported under the rule to
be confidential (e.g., production and process data). Some commenters
also presented arguments regarding why certain information would not be
``emission data'' under the CAA. Other commenters favored the wide
dissemination of information, and some argued that all of the
information gathered under Part 98 should be ``emission data'' and
hence not entitled to confidential treatment. In response to these
comments, EPA stated in the preamble to the final rule (74 FR 56287,
October 30, 2009), that through a notice and comment process, it would
establish those data elements that are entitled to confidential
treatment.
    The Mandatory GHG Reporting Rule was promulgated under the
authority of CAA sections 114(a) (for stationary sources) and 208 (for
motor vehicle and engine manufacturers).\2\ Today's proposed action
addresses the confidentiality of the data elements codified in 40 CFR
part 98.
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    \2\ The vehicle manufacturing requirements are found in 40 CFR
parts 86, 87, 89, 90, 94, 1033, 1039, 1042, 1045, 1048, 1051, 1054,
and 1065. The data collected under those parts are not included in
this notice. This proposed CBI determination applies only to the
data collected under 40 CFR part 98.
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    Several subparts of Part 98 were published on October 30, 2009 (74
FR 56374). EPA intends to finalize additional source category subparts
during calendar year 2010. Today's action covers data elements that
will be reported under the subparts that were finalized in 2009, data
elements in subparts that are expected to be finalized in 2010, and
data elements in proposed amendments to Part 98 that are expected to be
finalized in 2010. Specifically, the action covers the following data
elements:
    (1) Data required by 40 CFR part 98, subpart A and other subparts
promulgated in 2009. Today's action includes the data elements required
by 40 CFR part 98, subpart A and other subparts that were published on
October 30, 2009. This includes the data elements required to be
reported in annual reports under the following subparts of Part 98:
     Subpart A, General Provisions;
     Subpart C, General Stationary Fuel Combustion Sources;
     Subpart D, Electricity Generation;
     Subpart E, Adipic Acid Production;
     Subpart F, Aluminum Production;
     Subpart G, Ammonia Manufacturing;
     Subpart H, Cement Production;
     Subpart K, Ferroalloy Production;
     Subpart N, Glass Production;
     Subpart O, HCFC-22 Production and HFC-23 Destruction;
     Subpart P, Hydrogen Production;
     Subpart Q, Iron and Steel Production;
     Subpart R, Lead Production;
     Subpart S, Lime Manufacturing;
     Subpart U, Miscellaneous Uses of Carbonate;
     Subpart V, Nitric Acid Production;
     Subpart X, Petrochemical Production;
     Subpart Y, Petrochemical Production;
     Subpart Z, Phosphoric Acid Production;
     Subpart AA, Pulp and Paper Manufacturing;
     Subpart BB, Silicon Carbide Production;
     Subpart CC, Soda Ash Manufacturing;
     Subpart EE, Titanium Dioxide Production;
     Subpart GG, Zinc Production;
     Subpart HH, Municipal Solid Waste Landfills;
     Subpart JJ, Manure Management; \3\
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    \3\ EPA will not be implementing 40 CFR part 98, subpart JJ due
to a Congressional restriction prohibiting the expenditure of funds
for this purpose. As a result, 40 CFR part 98, subpart JJ is not
included in the scope of this notice.
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     Subpart LL, Suppliers of Coal-based Liquid Fuels;
     Subpart MM, Suppliers of Petroleum Products;
     Subpart NN, Suppliers of Natural Gas and Natural Gas
Liquids;
     Subpart OO, Suppliers of Industrial Greenhouse Gases; and
     Subpart PP, Suppliers of Carbon Dioxide.
    In addition, the action covers data required to be submitted in
BAMM extension requests and requests from adipic acid and nitric acid
facilities for approval of alternative monitoring methods. Although
amendments may be made during 2010 to further clarify some of these
data elements, we expect that any amended data element would still
logically fall into the same or another data category that is addressed
in this action and is therefore covered by the confidentiality
determination for that data category. In the final confidentiality
determination, EPA will address any revised data elements within these
subparts that have been amended prior to the publication of the final
confidentiality determination.
    (2) Data required by subparts that are being finalized in a
separate action published today. These subparts include the following
subparts from Part 98:
     Subpart FF, Underground Coal Mines;
     Subpart T, Magnesium Production;
     Subpart TT, Industrial Landfills; and
     Subpart II, Wastewater Treatment.

    (3) Data required by subparts that have recently been proposed or
re-proposed but not yet finalized. Earlier this year, EPA proposed or
re-proposed several source category subparts that were not included in
the October 30, 2009 final rule. These include data elements to be
reported in the annual reports and data elements to be included in
other documents required to be submitted to EPA (e.g., data elements
included in MRV Plans for geological sequestration facilities (proposed
40 CFR part 98, subpart RR, 75 FR 18576, April 12, 2010). These
subparts are as follows:
     Subpart I, Electronics Manufacturing (75 FR 18652, April
12, 2010);
     Subpart L, Fluorinated Gas Production (75 FR 18652, April
12, 2010);
     Subpart W, Petroleum and Natural Gas Systems (75 FR 18608,
April 12, 2010);
     Subpart DD, Sulfur Hexafluoride (SF6) and
Perfluorocarbons (PFCs) from Electrical Equipment at an Electric Power
System (75 FR 18652, April 12, 2010);
     Subpart RR, Injection and Geologic Sequestration of Carbon
Dioxide (75 FR 18576, April 12, 2010);
     Subpart SS, Sulfur Hexafluoride and PFCs from Electrical
Equipment Manufacture or Refurbishment (75 FR 18652, April 12, 2010);
     Subpart QQ, Importers and Exporters of Fluorinated
Greenhouse Gases Contained in Pre-charged Equipment or Closed-cell
Foams (75 FR 18652, April 12, 2010).
    EPA expects to finalize these subparts in 2010. Today's proposed
confidentiality determination covers these data elements based on the
proposed (and re-proposed) subparts. Although the data elements in
these subparts, when finalized, may not be exactly the same as those in
the proposed subparts, we expect that any revised or refined data
element in the relevant final subpart would still logically fall into
the same or another data category that is addressed in this action and
would therefore be covered by the confidentiality determination for
that data category. EPA will address such data elements in the final
confidentiality determination.
    (4) Data required by the proposed amendment to 40 CFR part 98,
subpart A (75 FR 18455, April 12, 2010). The proposed amendment to 40
CFR part 98, subpart A would require reporting of parent company and
other ownership information, North American Classification System
(NAICS) codes, and operation of cogeneration units. Today's proposed
confidentiality determination covers the data elements as proposed on
April 12, 2010. Although the data elements in the final amendment to 40
CFR part 98, subpart A may not be exactly the same as they were in the
proposed amendment, we expect that any revised or refined data element
in the final amendment would still logically fall into the same or
another data category that is already addressed in this action and
would therefore be covered by the final confidentiality determination
for that category. EPA will address such data elements in the final
confidentiality determination.
    (5) Data required by the proposed Technical Corrections, Clarifying
and Other Amendments to Certain Provisions of the Greenhouse Gas
Reporting Rule (signed May 27, 2010). The proposed amendments would
correct technical and editorial errors, and would correct data
reporting requirements so that they more closely conform to the
information used to perform emission calculations. The reporting
requirements from the following Part 98 subparts are affected by these
proposed amendments:
     Subpart E, Adipic Acid Production;
     Subpart H, Cement Production;
     Subpart K, Ferroalloy Production;
     Subpart N, Glass Production;
     Subpart O, HCFC-22 Production and HFC-23 Destruction;
     Subpart P, Hydrogen Production;
     Subpart Q, Iron and Steel Production;
     Subpart S, Lime Manufacturing;
     Subpart V, Nitric Acid Production;
     Subpart Z, Phosphoric Acid Production;
     Subpart CC, Soda Ash Manufacturing;
     Subpart EE, Titanium Dioxide Production;
     Subpart GG, Zinc Production;
     Subpart HH, Municipal Solid Waste Landfills;
     Subpart LL, Suppliers of Coal-based Liquid Fuels;
     Subpart MM, Suppliers of Petroleum Products; and
     Subpart NN, Suppliers of Natural Gas and Natural Gas
Liquids.
    EPA expects to publish the proposed amendments after receiving and
addressing public comments. Although the data elements in the final
amendments may not be exactly the same as they were in the proposed
amendments, we expect that any revised or refined data element in the
final amendments would still logically fall into the same or another
data category that is already addressed in this action and would
therefore be covered by the final confidentiality determination for
that category. EPA will address such data elements in the final
confidentiality determination.
    Publication of Data. As previously mentioned, EPA is committed to
transparency and intends to publish on EPA's Web site much of the Part
98 data that is submitted; however, we are not publishing data elements
that are CBI.
    Public release of the information collected under Part 98 that are
emission data or non-CBI is important because it ensures transparency
and promotes public confidence in the data. For example, facility
identification data (e.g., name and physical address of a direct
emitter) allows the public to identify which facilities are emitting
GHGs and how much they are emitting. This information is useful for
comparing the GHG emissions of different facilities and for evaluating
changes in a facility's GHG emissions over time. Comparisons of
facility-specific data will improve our understanding of the factors
that influence GHG emission rates and actions facilities could in the
future or already take to reduce emissions. By tracking changes in
facility-specific data, EPA and other stakeholders will be able to
track trends in GHG emissions from industries and facilities over time
and assess responses to policies and potential regulations. Information
on unit characteristics and operations are valuable to policy makers,
the public, and industry because they improve our understanding of the
sources of emissions and the relationship between process operating
characteristics and emissions. The number of times substitute data are
used in place of measured parameters, methods used to calculate
emissions, methods used to determine the composition of materials, and
the frequency of calibrating measurement devices are all valuable for
evaluating the quality of the reported data. These data are also
important to the GHG verification checks.
    Data submitted by suppliers are needed by EPA and other users of
the reported data to help develop policies that could affect sources
under a variety of CAA provisions. For example, the geographic
distribution of suppliers of various fuel types and industrial GHGs may
prove useful in evaluating the impact of transportation distances and
transportation emissions on the feasibility and effectiveness of
different GHG control strategies. These may include regulatory and
nonregulatory strategies and technologies for preventing or reducing
air pollutants, such as energy conservation, end-use efficiency, and
fuel- or raw-material switching.

    This is not a comprehensive listing of all the ways the information
collected under Part 98 is valuable to EPA and others, but it
illustrates the importance of making available to the public data that
are not entitled to confidential treatment under CAA section 114(c).
Such disclosure is required under CAA section 114(c).
    Given the importance of this data, we are publishing data elements
that are emission data or are determined to be not CBI. For those
limited data that are CBI, EPA intends to publish the data only where
they can be aggregated in a manner to protect the confidentiality of
these data elements. There are a number of different formats in which
both CBI and non-CBI data could be published using tables, graphs,
charts, and other graphical methods. For example, EPA could publish
tables or bar charts showing the emission data for individual
facilities to allow comparison of data between facilities within a
source category. Alternatively, EPA could publish pie charts of
emission data by source category or by geographical region to allow
easy comparison of data between different industry sectors or
locations. EPA is interested in receiving suggestions on formats for
presenting both CBI and non-CBI data that would be most useful to the
public. We are specifically soliciting suggestions on approaches to
aggregating CBI data that would provide useful information to the
public without disclosing data determined to be CBI. We are also
soliciting comment on the value of publishing facility-level CBI data
elements within numerical ranges that maintain the confidentiality of
the actual reported values. Specifically, we are soliciting comment on
whether publishing ranges of values at the facility-level would provide
valuable information that aggregated data may not convey.

C. Section 114 of CAA, ``Emission Data,'' and Confidentiality

    Section 114(c) of CAA requires that ``[a]ny records, reports, or
information obtained under [CAA section 114(a)] shall be available to
the public, except that upon a showing satisfactory to the
Administrator by any person that records, reports, or information, or
particular part thereof, (other than emission data) * * * if made
public, would divulge methods or processes entitled to protection as
trade secrets * * *, the Administrator shall consider such record,
report, or information or particular portion thereof confidential * *
*.'' EPA has interpreted CAA section 114(c) to afford confidential
treatment to both trade secrets and confidential business information
(hereinafter collectively referred to as ``CBI'') (40 FR 21987, 21990
(May 20, 1975)). Section 114(c) of CAA precludes ``emission data'' from
being considered confidential and requires that such data be available
to the public.
    Pursuant to CAA section 114(c), EPA proposes to determine the
confidentiality status of data that are required to be reported under
Part 98. As described in more detail in Section II.A of this preamble,
EPA has grouped Part 98 data into 22 separate data categories and
proposes to determine the confidentiality status of Part 98 data on a
category basis. There are 11 categories of direct emitter data and 11
categories of supplier data. For the list of all 22 data categories and
brief descriptions of the data elements within each category, please
see Section II.C of this preamble for direct emitter data categories
and Section II.D of this preamble for supplier data categories.
    In making the confidentiality determination, EPA first examined, on
a data category basis, whether the data elements constituted ``emission
data'' under CAA section 114(c). Specifically, EPA examined whether the
data elements in a given category met the definition of ``emission
data'' at 40 CFR 2.301(a)(2)(i), which is as follows:
    Emission data means, with reference to any source of emission of
any substance into the air--
    (A) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of any emission which has been emitted by the
source (or of any pollutant resulting from any emission by the source),
or any combination of the foregoing;
    (B) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of the emissions which, under an applicable
standard or limitation, the source was authorized to emit (including,
to the extent necessary for such purposes, a description of the manner
or rate of operation of the source); and
    (C) A general description of the location and/or nature of the
source to the extent necessary to identify the source and to
distinguish it from other sources (including, to the extent necessary
for such purposes, a description of the device, installation, or
operation constituting the source).
    With respect to the 11 categories of direct emitter data, because
there are no established GHG emission limits for the facilities subject
to Part 98, EPA finds that 2.301(a)(2)(i)(B), which addresses emissions
that sources are authorized to emit, does not apply. EPA focused its
analysis on whether the data elements in a given direct emitter
category met the emission data definitions at 2.301(a)(2)(i)(A) or (C).
EPA proposes to determine that the data in a direct emitter data
category qualify as ``emission data'' if they are necessary to
determine the identity, amount, frequency, or concentration of the
emission emitted by the reporting facilities. See 40 CFR
2.301(a)(2)(i)(A). As discussed in more detail in Sections II.C.2
through II.C.6 of this preamble, EPA proposes to determine that the GHG
emissions to be reported by direct emitters, as well as those data that
are required to perform the emissions calculations specified in the
direct emitter subparts (i.e., inputs to equations/calculations as well
as information otherwise needed to calculate or determine emissions),
meet the definition of ``emission data'' at 40 CFR 2.301(a)(2)(i)(A).
In addition, EPA proposes to determine that locational and other
identifying information regarding the emitting sources (i.e., the data
elements in the direct emitter facility and unit identifier information
category) are emission data because these data describe a reporting
emitting source's location and other identifying information that help
distinguish the source from other sources. See 40 CFR
2.301(a)(2)(i)(C).
    With respect to the data elements in the remaining direct emitter
data categories, EPA proposes to determine that they are not ``emission
data'' under 40 CFR 2.301(a)(2)(i) for purposes of determining the GHG
emissions required to be reported by direct emitters under Part 98.
These data elements are in the following direct emitter data
categories:
     Unit/process ``static'' characteristics that are not
inputs to equations.
     Unit/process operating characteristics that are not inputs
to equations.
     Test and calibration methods.
     Production/throughput data that are not inputs to emission
equations.
     Raw materials consumed that are not inputs to emission
equations.
     Process-Specific and Vendor Data Submitted in BAMM
Extension Requests.
    Part 98 sets forth in relevant subparts the specific methods and
equations for calculating direct emitters' GHG emissions. Direct
emitters' GHG emissions can be (and must be) calculated by inputting
the necessary data elements into the relevant equations (or other
specified calculation

methodologies) as prescribed in Part 98. None of the data elements in
the data categories listed immediately above are inputs to equations/
calculations or information otherwise needed to calculate or determine
emissions and are therefore not necessary to calculate direct emitters'
GHG emissions under Part 98. We therefore propose to determine that
these data elements are not ``emission data'' under 40 CFR
2.301(a)(2)(i) for purposes of determining the direct emitters' GHG
emissions that are required to be reported under Part 98. However, EPA
notes that these data elements may nonetheless meet the criteria of
``emission data'' at 40 CFR 2.301(a)(2)(i) if they are ``necessary to
determine the identity, amount, frequency, concentration, or other
characteristics (to the extent related to air quality)'' of a reporting
facility's emission in the context of another (or future) regulatory
program or future legislation. Therefore, the proposed determination
described above is made strictly in the context of determining the
direct emitters' GHG emissions required to be reported under Part 98,
considering the specific equations and methodologies prescribed in the
relevant Part 98 subparts for calculating such emissions. The proposed
determination does not speak to whether any of these data elements may
qualify as ``emission data'' in any other contexts described above.
    With respect to the 11 categories of supplier data, EPA proposes to
determine that none of these data qualify as emission data. EPA
interprets 2.301(a)(2)(i) to define ``emission data'' as information
relative to emissions emitted, or authorized to be emitted, by the
reporting sources. The data to be reported by suppliers under Part 98
pertain to potential future GHG emissions from the eventual use of the
suppliers' products, not emissions from these suppliers' facilities.
Therefore, these data do not meet the definition of emission data at 40
CFR 2.301(a)(2)(i).
    For Part 98 data that are not considered ``emission data'' in
today's proposal, EPA proposes to determine, by category, whether such
data qualify as CBI under CAA section 114(c). In making the CBI
determination, EPA considered the confidentiality determination
criteria at 40 CFR 2.208, which are as follows:
    Determinations issued under Sec. Sec.  2.204 through 2.207 shall
hold that business information is entitled to confidential treatment
for the benefit of a particular business if:
    (a) The business has asserted a business confidentiality claim
which has not expired by its terms, nor been waived nor withdrawn;
    (b) The business has satisfactorily shown that it has taken
reasonable measures to protect the confidentiality of the information,
and that it intends to continue to take such measures;
    (c) The information is not, and has not been, reasonably obtainable
without the business's consent by other persons (other than
governmental bodies) by use of legitimate means (other than discovery
based on a showing of special need in a judicial or quasi-judicial
proceeding);
    (d) No statute specifically requires disclosure of the information;
and
    (e) Either:
    (1) The business has satisfactorily shown that disclosure of the
information is likely to cause substantial harm to the business's
competitive position; or
    (2) The information is voluntarily submitted information (see Sec.
2.201(i)), and its disclosure would be likely to impair the
Government's ability to obtain necessary information in the future.
    Because EPA proposes to determine the CBI status of Part 98 data in
advance of their submission, EPA assumes in this proposal that the data
meet the criteria at 40 CFR 2.208(a) and (b). Specifically, EPA assumes
that the reporting facilities have asserted confidentiality claims. EPA
further assumes that the reporting facilities are taking and will
continue to take reasonable measures to protect the data. The data
elements at issue also meet the criterion at 40 CFR 2.208(d). As
discussed above, EPA proposes to determine that these data elements are
not ``emission data'' (which must be disclosed under CAA section
114(c)), and EPA is not aware of any other statute requiring their
disclosure. With the assumptions/findings described above, EPA
evaluated whether the remaining criteria at 40 CFR 2.208 are met.
Specifically, EPA focused on whether release of the data is likely to
cause substantial harm to the business's competitive position. See 40
CFR 2.208(e)(1). EPA also considered whether the data are already
publicly available or reasonably obtainable by a non-governmental
entity. See 40 CFR 2.208(c). EPA proposes to determine that the data in
a given category are not CBI (or are ``non-CBI'') under CAA section
114(c) if the data fail to satisfy either of the remaining criteria
(i.e., 40 CFR 2.208(c) and (e)). If EPA finds that the data in a given
category meet the remaining criteria at 40 CFR 2.208, EPA proposes to
determine that such data are CBI under CAA section 114(c).
    Data that are determined to be non-CBI must be disclosed to the
public under CAA section 114(c). Data that are determined to be CBI
will be entitled to confidential treatment as long as the data continue
to meet all of the criteria at 40 CFR 2.208.
    EPA is seeking comment generally on its proposed interpretation of
the term ``emission data'', to include data that are required to
perform emission calculations specified in the direct emitter subparts,
as used in the statute and as defined in EPA's regulations at 40 CFR
2.301. For example, would a narrower interpretation of the regulatory
definition of ``emission data'', that does not include all inputs to
equations, be appropriate as a legal and policy matter? When commenting
on this issue, please (i) provide a description of what the narrower
interpretation should be, (ii) explain why the narrower interpretation
would be reasonable as well as why it would be sufficient for purposes
of Part 98 and/or any other CAA programs, (iii) describe how it would
fit within the regulatory definition, and (iv) discuss how it would be
consistent with prior interpretations or implementation of that term
\4\ as well as the statutory goal behind the CAA section 114(c)
language. More specifically, please suggest exactly what Part 98 data
you think should be considered emission data, describe what Part 98
data you think should not be emission data and why (and whether such
non-emission data are CBI and why), and clearly explain how a narrower
definition of ``emission data'' would be consistent with the
``necessary to determine'' clause in 40 CFR 2.301, as well as with the
purpose behind the statutory language.
---------------------------------------------------------------------------

    \4\ For example, in a 1991 Federal Register notice, EPA
described certain information that it would consider emission data
under CAA section 114 (56 FR 7042, February 21, 1991).
---------------------------------------------------------------------------

    EPA is also seeking comment on whether a broader interpretation of
``emission data'' would be appropriate for Part 98 and asks that the
same information discussed above be provided in any such comments
(e.g., clear description of broader interpretation, explanation of what
additional data should be considered to be ``emission data'',
discussion of how the revised interpretation is consistent with the
regulations and statute, etc.).

D. Rationale for Making Confidentiality Determinations Through This
Action

    In accordance with 40 CFR part 2, subpart B, EPA generally makes
case-by-case confidentiality determinations on submitted data when an
entity submitting data makes a claim of

confidentiality. Under CAA section 114(c), reporters can make
confidentiality claims only for data that does not meet the definition
of ``emission data'' in 40 CFR 2.301(a)(2)(i).
    EPA considered case-by-case determinations for Part 98 data and
concluded that case-by-case confidentiality determinations would likely
result in significant delays in making Part 98 data available for use
by the public and policy makers. With over 1,500 individual data
elements and more than 10,000 individual reporters, the amount of data
to be reported under Part 98 is considerable. The data elements
reported under the rule are detailed in nature, and many of them are
likely to be considered sensitive by reporting industries. For each
case-by-case determination, reporters would have to identify and claim
specific reported data elements as confidential and provide written
justification supporting their confidentiality claim. EPA would then
need to evaluate each confidentiality claim individually to determine
first whether the information is ``emission data'' under CAA section
114(c) and thus required to be made available. If the data element is
not emission data, EPA would next evaluate the data based on the
criteria at 40 CFR 2.208, including whether the information is already
publicly available or obtainable without the business's consent,
whether the submitter has taken steps to protect the data, and whether
releasing the data is likely to cause substantial harm to the
business's competitive position. This procedure would need to be done
for each data element that each reporter claims is confidential. This
would be extremely time consuming for the reporter who has to prepare
the confidentiality claim. Further, considering the number of reporters
and the amount of data to be reported under Part 98, EPA would likely
receive a very large number of individual confidentiality claims for a
wide variety of data elements. In light of the large volume of
confidentiality claims EPA expects to receive and the time it would
take to evaluate each confidentiality claim, EPA would not be able to
make Part 98 data available to the public in a timely manner, which
would impact the usefulness of the data to the public, State and local
governments, and other stakeholders who need the data to assess and
formulate GHG policies and programs.
    EPA also believes case-by-case determinations on an entity-specific
basis would be unnecessarily burdensome for reporters. As mentioned
above, reporters would have to identify and claim as confidential each
data element, even if similar data (or same data from a previous year)
have been previously submitted and claimed as confidential. The
confidentiality claims for data submitted as part of the annual report
would have to be reevaluated each year. As explained in greater detail
in Section I.C of this preamble, EPA has grouped similar data elements
into data categories and evaluated the data elements within each data
category using the same criteria used to evaluate case-by-case
confidentiality claims. We are proposing on category basis which data
elements would or would not be entitled to confidential treatment. By
making confidentiality determinations prior to data reporting through
this proposal and rulemaking process, potential reporters are able to
submit comments identifying data they consider sensitive and provide
the rationales and supporting documentation they would otherwise submit
for case-by-case confidentiality determinations. EPA will consider all
comments received on this proposal and will evaluate claims of
confidentiality before finalizing the proposed confidentiality
determinations.
    In the development of this proposal, EPA evaluated the process that
the Toxics Release Inventory (TRI) program uses to determine whether
data elements are entitled to confidential treatment. Per Emergency
Planning and Community Right to Know Act (EPCRA) regulations codified
at 40 CFR part 350, only one data element, the specific chemical name,
can be claimed as a trade secret. TRI reporters claiming the chemical
name as a trade secret must check a box on the reporting form and also
complete a justification form, which is evaluated on a case-by-case
basis by EPA. Typically, less than 20 TRI reporters in a year submit
claims that the chemical name is a trade secret. Although the number of
reporters in the TRI program (approximately 22,000) is on the same
order of magnitude as the number of reporters under Part 98, EPA
expects that the number of reporters requesting data be considered CBI,
as well as the number of data elements reporters would request be
considered CBI would be much higher under Part 98. For the reasons
stated above, EPA proposes to determine upfront the confidentiality
status of Part 98 data.
    Although EPA has concluded that case-by-case determinations would
result in a delay in the release of data, we are soliciting comment on
whether (and if so, what) unique circumstances may arise for a
reporting facility, after finalization of the confidentiality status of
the Part 98 data, that would warrant the need for EPA to reconsider a
final non-CBI determination applicable to certain Part 98 data from
that facility. In providing your comments, please explain the types of
unique circumstances that may arise, the types of Part 98 data elements
that may be affected, and how such circumstances would qualify the
affected Part 98 data as CBI. We further solicit comments on whether
there should be a limited, less cumbersome process for reconsidering
any of our final non-CBI determinations under those unique
circumstances, what kind of process would facilitate such
reconsideration, and how we limit such a process to only those cases
that warrant such reconsideration. If respondents believe that such a
process is necessary, please describe specifics of the proposed process
as well as the appropriate criteria (e.g., the type of facility, the
type of data, and the specific technical reason for release of the
data, etc.) that would have to be met in order to enable the use of
such a process.

E. Proposed Rule Amendment Addressing Treatment of Part 98 Data
Elements

    As previously discussed, pursuant to CAA section 114(c), EPA must
make available to the public data submitted under Part 98, except for
data (other than emission data) that are considered confidential under
CAA section 114(c). Accordingly, EPA intends to release Part 98 data
after their submission to EPA in accordance with EPA's determinations
of their confidentiality status in a final rule. Specifically, EPA
intends to release Part 98 data that are determined in the final rule
to be emission data or not otherwise entitled to confidential treatment
under CAA section 114(c) (i.e., ``non-CBI''). EPA intends to make much
of such data available to the public through an EPA Web site. Data
elements that we determine to be CBI under CAA section 114(c) would be
published on the Web site only if they can be aggregated in a manner
that would protect the confidentiality of these data elements (e.g.,
production data determined to be CBI that is aggregated by source
category).
    40 CFR part 2, subpart B sets forth procedural steps that EPA must
follow before releasing any information either on the Agency's own
initiative or in response to requests made pursuant to FOIA. In
particular, EPA is generally required to make case-by-case
confidentiality determinations and to notify individual reporting
businesses before disclosing information that businesses have submitted
with a confidentiality claim. As discussed in Section I.D of this
preamble, in light of

the voluminous data EPA will receive under Part 98 and the multiple
procedural steps required under 40 CFR part 2, subpart B, EPA would not
be able to make Part 98 data (determined to be emission data or non-
CBI) publicly available in a timely fashion, i.e., in order to make
such data informative to the public and/or useful to the State
regulators and local governments in formulating their own GHG policies,
if it were required to make separate CBI determinations based on each
submitter's individual claim of confidentiality.
    To facilitate timely release of GHG data collected under Part 98
that are emission data or non-CBI, EPA proposes to amend 40 CFR 2.301,
Special rules governing certain information obtained under the Clean
Air Act. The proposed amendments pertain only to Part 98. Under the
proposed amendment, EPA may release Part 98 data that are determined to
be emission data or non-CBI upon finalizing the confidentiality status
of these data. Consistent with the 40 CFR part 2 procedures, this
rulemaking provides the reporting businesses an opportunity to justify
any confidentiality claim they may have for the data they are required
to submit (except for emission data which are not entitled to
confidential treatment). In addition, businesses have the benefit of
seeing EPA's rationales and analyses prior to submitting any
justification, information that they would not otherwise have under the
current 40 CFR part 2 procedures. EPA will consider comments received
on this proposal before finalizing the confidentiality determinations.
    The proposed amendment also sets forth procedures for treatment of
information in Part 98 determined to be CBI. The proposed procedures
are similar to or consistent with the existing 40 CFR part 2
procedures.
    EPA solicits comment on the proposed amendments to 40 CFR 2.301,
Special rules governing certain information obtained under the CAA.

F. Other Relevant Background

    This section briefly describes existing policies and practices
regarding ``emission data'' and the release of data obtained under CAA
section 114.
    February 21, 1991 notice of policy on public release of certain
data elements submitted under CAA sections 110 and 114. In a 1991 EPA
notice of policy (35 FR 7042, February 21, 1991), EPA stated that
certain data fields constitute ``emission data'' and therefore cannot
be withheld as confidential. The 1991 notice indicated that while
confidentiality determinations are typically made on a case-by-case
basis, some kinds of data will always constitute emission data within
the meaning of CAA section 114(c). The notice listed several data
fields that are to be considered emission data including facility
identification data (e.g., facility name; address; ownership; Standard
Industrial Classification (SIC); emission point, device or operation
description information) and emission parameters (e.g., compounds
emitted; origin of emissions; emission rate, concentration, release
parameters, boiler or process design capacity, emission estimation
method). The notice clarified that the list in the notice was not
exhaustive and that other data might be found, in a proper case, to
constitute emission data.
    The National Emissions Inventory (NEI) is EPA's compilation of
estimates of air pollutants discharged on an annual basis and their
sources. The compilation includes emissions estimates submitted by
State, Local and Tribal air pollution control agencies, estimates
calculated by EPA, and emissions obtained from other sources. NEI does
not collect data directly from facilities; rather it gets facility-
level data from the States. Based on the 1991 notice, NEI considers
everything they receive to be emission data, and therefore publishes
all of the information that it receives.
    Many of the data elements under Part 98 are the same as or similar
to the data fields listed in the 1991 notice as ``emission data''.
However, there are many data elements under Part 98 that are not
addressed in EPA's 1991 notice. As described above, today's action
addresses all data elements reported under Part 98.\5\
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    \5\ The only exception is supporting documentation provided by
applicants for approval of alternative methods for adipic acid and
nitric acid facilities. EPA recognizes that supporting documentation
included in these applications may include information that is
sensitive or proprietary, such as detailed process designs or site
plans. Because the exact nature of this documentation cannot be
predicted with certainty, EPA proposes to make case-by-case
confidentiality determinations under CAA section 114(c) for any
supporting documentation claimed confidential by applicants either
upon receipt of such information or upon a request for such
information after receipt.
---------------------------------------------------------------------------

    Acid Rain Program. The Acid Rain program releases to the public
data similar to the data collected under Part 98. Under the Acid Rain
program, facilities are required to submit quarterly reports that
contain data on CO2 emissions, as well as the data used to
identify emission units and calculate the CO2 emissions. For
the Acid Rain program, the CO2 emissions are determined
using either Continuous Emissions Monitoring Systems (CEMS) or
alternative methods specified in the rule (e.g., 40 CFR part 75,
appendix G methods and the method used to calculate CO2
emissions by facilities with low mass emissions).
    Data submitted to the Acid Rain program include facility
identification information, CO2 mass emission data, data
elements used to calculate annual CO2 emissions, combustion
unit characteristics, and measurement methodologies (e.g., hourly load,
operating time, hourly heat input rate, unit output or steam load, fuel
type, fuel quantity, fuel heating value, control status of the unit,
methods used to measure or calculate CO2 emissions or other
parameters such as fuel flow and heat input). These are posted for the
public on EPA's Acid Rain Web site (http://www.epa.gov/acidrain).
    The Acid Rain program allows facilities to make confidentiality
claims for data that are not ``emission data'' (see 40 CFR 75.60(c)).
Although facilities subject to the Acid Rain program are allowed to
assert claims of data confidentiality for data that are not emission
data, to date no such representations have been received and all of the
data submitted to EPA are made available to the public.
    In the Acid Rain program, public release of these data ensures
transparency and public confidence in the program. Since many of the
data fields required by the Acid Rain program are the same or similar
to the data elements to be reported by direct-emitting facilities
subject to Part 98, EPA finds that public release of Part 98 data that
are emission data or non-CBI would likewise ensure transparency and
promote public confidence in the accuracy and completeness of the data
reported under Part 98. However, EPA recognizes that Part 98 differs
from the Acid Rain Program in the scope of industries required to
report. For example, EPA recognizes that electricity producers may be
inherently less concerned about the disclosure of reported data than
other industries reporting under Part 98 because they are publicly
regulated utilities and detailed data on their process, production, and
pricing structure are already in the public domain. Therefore, EPA is
proposing to determine that some data elements reported under Part 98
remain CBI (e.g., production data reported by industrial facilities in
cases where production data is not needed to calculate GHG emissions)
even though similar data elements for the utility industry are publicly
available.

G. Public Comments on the Proposed Mandatory GHG Reporting Rule

    In response to the April 10, 2009 proposed rule (74 FR 16448), EPA
received a number of comments on whether data collected under Part 98
should be afforded confidential treatment. Comments on this topic were
received from a wide range of interested parties, including industry,
State and local governments, private citizens, environmental
organizations, and other nongovernment organizations. The comments
received can be classified into two broad categories: those supporting
the release of as much data as possible; and those opposed to releasing
one or more of the reported data elements. A summary of the comments is
provided in this section of the preamble. For additional information,
see the memorandum ``Summary of Comments on the Release of Reported
Data Submitted in Response to EPA's Request for Comments on the
Proposed Mandatory Greenhouse Gas Reporting Rule'' Published April 10,
2009 in Docket EPA-HQ-OAR-2009-0924.
    EPA is not responding further to public comments related to the
confidentiality of data elements received on the proposed GHG reporting
rule. Today's action proposes confidentiality determinations and
solicits additional public comments. Public comments received will be
addressed in the final action and associated response to comments
documents.
    Comments Supporting Release of Reported Data. States, local
government, environmental groups, and private citizens generally
supported the release of reported data. Many commenters stated that
reported data should be made broadly available to the public and other
government agencies (including State and local government). Some argued
that all of the information gathered under Part 98 should be ``emission
data'' and hence not entitled to confidential treatment. Many
commenters cited strong public interest in both the emissions and
verification data as their reason for recommending the broad
dissemination of data. Some commenters also stated that making the data
broadly available would be consistent with the President's and EPA
Administrator's commitment to transparency and public access to
government information. Several commenters stated that release of
detailed emission data would be useful to State regulators and local
governments because the data would inform future policies and assist
with the implementation GHG emission reduction plans. Some commenters
also noted that the release of emission data would be consistent with
other programs, such as the Acid Rain program and the European Union
Emissions Trading System.
    Comments Opposing the Release of Reported Data. Many businesses and
industry organizations opposed making the reported data broadly
available to the public. Several expressed concern that Part 98 did not
address the confidentiality of the reported data. Many commenters
submitted general statements that confidential data should not be made
public but did not specify which data elements should be afforded
confidential treatment. Some commenters identified specific data
elements that they considered confidential but did not explain why such
data elements should be considered confidential. Some commenters
explained in more detail their confidentiality claims. These comments
are summarized below.
    Some commenters argued that detailed process-related information,
such as production throughputs, product characteristics, operating
hours, raw material consumption, fuel usage, and unit descriptions,
should be protected as confidential because its release would reveal
information on energy usage, raw materials, product chemistry,
production efficiency, and other information that would infringe on
business confidentiality. These commenters argued that disclosing
annual production and raw material quantities could reveal operational
strengths and weaknesses, and could be used to deduce pricing
structures. Several commenters also recommended that unit or process
level emission data should be afforded confidential treatment because
this data may be used in certain instances to determine other
proprietary information about a facility, such as production or output
rates, capacity, utilization rates, process efficiency, and the
information on the type or design of a process. Other commenters argued
that only facility-level emission data should be released and that all
other data was entitled to confidential treatment because they did not
view it as ``emission data'' as defined in 40 CFR part 2.
    Several commenters were in favor of classifying supplier data, in
particular product quantities and characteristics, as confidential. One
commenter noted that public disclosure of production quantities and
product characteristics would divulge sensitive information related to
marketing and distribution of products, as well as competitive
strategies of a company. Another commenter claimed that public
disclosure of supplier data may prevent off-shore suppliers and
customers from doing business with U.S.-based companies if sensitive
information were not held to be confidential.
    As mentioned above, EPA stated in the preamble to the final rule
that it would determine the confidentiality status of the data elements
to be collected under Part 98 through a notice and comment process.
Today's action proposes for public comment confidentiality
determinations to be made for data elements that are codified in Part
98. Today's action also includes an amendment to 40 CFR 2.301 to
clarify the procedures for the treatment of Part 98 data in accordance
with the final confidentiality determination of such data.

II. Proposed Emission Data and Confidentiality Determinations for Data
Required by the Mandatory GHG Reporting Rule in Part 98

A. Overview

    This action describes the 22 data categories EPA has developed for
all of the data to be reported under Part 98 and EPA's proposed
determination by category. As mentioned in previous sections of this
preamble, because Part 98 has over 1,500 data elements and has several
different subparts with similar types of data elements, EPA grouped
similar data elements together into data categories, with 11 distinct
data categories for the direct emitter source categories and 11 for
supplier source categories. The data elements within a given data
category are similar from a technical standpoint, with some exceptions
explained in the descriptions of each data category in Sections II.C
and II.D of this preamble. A list of all the data elements assigned to
each category is provided in a memorandum (see Memorandum ``Data
Category Assignments for Reporting Elements'' in Docket EPA-HQ-OAR-
2009-0924 and the Web site (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html). For the explanation of the approach taken by EPA
to determine which data elements within each data category are entitled
to confidential treatment, see Section I.C of this preamble.
    In addition to reporting facility GHG emissions (or supplier GHG
quantities that would or could potentially be emitted when the products
they supply are used), Part 98 requires reporting of a wide range of
other facility and process-specific data. Most of this data are
required primarily to enable

emissions verification. The information is also needed to support
analysis of GHG emissions for future CAA policy and program
development, including programs that could affect direct emitters or
suppliers. For example, the required information would be helpful to
policy makers in understanding the specific sources of emissions and
the amounts emitted by each unit/process. The information is also
important for understanding the effect of different processes, fuels,
and feedstocks on emissions.

B. Request for Comments

    Today's action provides affected businesses subject to Part 98,
other stakeholders, and the general public an opportunity to provide
comment on the proposed confidentiality determination of Part 98 data
and the proposed amendment to 40 CFR 2.301. In addition to soliciting
comment on our proposed amendments to 40 CFR 2.301 and proposed
confidentiality designations, we are also soliciting comment on the
following specific issues relevant to the proposed confidentiality
determinations:
    Data Categories. As discussed above, EPA has categorized individual
data elements into 22 data categories (i.e., 11 for direct emitters and
11 for suppliers) and has made confidentiality determinations for each
data category. While we consider this approach to be reasonable given
the number of data elements and the technical similarity among data
elements across subparts, EPA is interested in stakeholder views on
this approach. In particular, EPA is soliciting comment on whether
grouping data elements into data categories, and making a
confidentiality determination by data category is a reasonable approach
and whether the proposed data categories are sufficient for this
purpose. Specifically, we request comments on whether the 22 data
categories described in this action are appropriately delineated and
whether the data elements within each category are sufficiently similar
to allow confidentiality determinations to be made on a data category
basis, or whether some data categories should be combined or broadened.
In commenting on these topics, please identify the specific data
categories that should be narrowed or broadened, provide suggestions
for how this might be done, and provide specific reasons and examples
of why such an approach is necessary.
    Recognizing that transparency is a key priority, we are also
requesting comments on whether it may be necessary to make source
category-specific confidentiality determinations within any of the
proposed data categories. This would allow either a narrower or broader
release of the data depending on the source category in order to enable
the release of as much data as possible. Each of the data categories
discussed in this action contains data elements from multiple source
categories (subparts). For most data categories, a single
confidentiality determination is proposed for the entire data category.
However, for some of the supplier data categories (i.e., the GHGs
Reported Category, the Production Throughput Quantities and Composition
Data Category, and the Unit/Process Operating Characteristics
Category), we are proposing to determine that some data elements within
a data category are entitled to confidential treatment and others
within the same category are not. For example, in the supplier data
category for Production and Throughput Data, EPA is proposing that
throughput data reported by NGL fractionators would be entitled to
confidential treatment, but throughput data reported by Local
Distribution Companies (LDCs) would not be entitled to confidential
treatment because this data is already publicly available. We are
soliciting comments on whether, for any other data categories, there
are unique circumstances within particular source categories (rule
subparts) that would warrant making subpart-specific confidentiality
determinations within categories beyond what is proposed in this
action. If so, please explain what specific technical, economic, or
market considerations within a particular source category (e.g., within
a particular industry) warrant a source category (rule subpart)
specific decision on confidentiality.
    As discussed in Section I.D of this preamble, we are also
soliciting comment on whether (and if so, what) unique circumstances
may arise for a reporting facility, after finalization of the
confidentiality status of the Part 98 data, that would warrant the need
for EPA to reconsider a final non-CBI determination applicable to
certain Part 98 data from that facility. In providing your comments,
please explain the types of unique circumstances that may arise, the
types of Part 98 data elements that may be affected, and how such
circumstances would qualify the affected Part 98 data as CBI. We
further solicit comments on whether there should be a limited, less
cumbersome process for reconsidering any of our final non-CBI
determinations under those unique circumstances, what kind of process
would facilitate such reconsideration, and how we limit such a process
to only those cases that warrant such reconsideration. If respondents
believe that such a process is necessary, please describe specifics of
the proposed process as well as the appropriate criteria (e.g., the
type of facility, the type of data, and the specific technical reason
for release of the data, etc.) that would have to be met in order to
enable the use of such a process.
    ``Emission Data'' Determination. As previously discussed in Section
I.C of this preamble, EPA proposes to determine as ``emission data''
data required to perform the emissions calculations for direct emitters
specified in Part 98 because these inputs to GHG emission equations are
``necessary to determine the identity, amount * * *'' of emissions and
are therefore ``emission data'' under the meaning of 40 CFR
2.301(a)(2)(i). The Inputs to Emission Equations Category for direct
emitters includes all data elements that are inputs to equations; and
for some source categories this includes data such as production and
raw material quantities and compositions that may be considered
sensitive by businesses. (See Section II.C of this preamble for a
description of the Inputs to Emission Equations data category.) As
previously discussed, ``emission data'' cannot be kept confidential per
CAA section 114.
    EPA is seeking comment generally on its proposed interpretation of
the term ``emission data'', to include data that are required to
perform emission calculations specified in the direct emitter subparts,
as used in the statute and as defined in EPA's regulations at 40 CFR
2.301. For example, would a narrower interpretation of the regulatory
definition of ``emission data'', that does not include all inputs to
equations, be appropriate as a legal and policy matter? When commenting
on this issue, please (i) provide a description of what the narrower
interpretation should be, (ii) explain why the narrower interpretation
would be reasonable as well as why it would be sufficient for purposes
of Part 98 and/or any other CAA programs, (iii) describe how it would
fit within the regulatory definition, and (iv) discuss how it would be
consistent with prior interpretations or implementation of that term
\6\ as well as the statutory goal behind the CAA section 114(c)
language. More specifically, please specify exactly what Part 98 data
you

think should be considered emission data, describe what Part 98 data
you think should not be emission data and why (and whether such non-
emission data are CBI and why), and clearly explain how a narrower
definition of ``emission data'' would be consistent with the
``necessary to determine'' clause in 40 CFR 2.301, as well as with the
purpose behind the statutory language.
---------------------------------------------------------------------------

    \6\ For example, in a 1991 Federal Register notice, EPA
described certain information that it would consider emission data
under CAA section 114 (56 FR 7042, February 21, 1991).
---------------------------------------------------------------------------

    EPA is also seeking comment on whether a broader interpretation of
``emission data'' would be appropriate for Part 98 and asks that the
same information discussed above be provided in any such comments
(e.g., clear description of broader interpretation, explanation of what
additional data should be considered to be ``emission data'',
discussion of how the revised interpretation is consistent with the
regulations and statute, etc).
    Delay Release of Emission Data and Data Not Entitled To
Confidential Treatment. Under Part 98, reports are due by March 31st
for the previous year's data. The Agency considered options of delaying
release of some data for a given period of time (e.g., one to three
years rather than releasing immediately after verification) as a means
to address potential industry concerns over release of data. One option
EPA considered is delaying the publication (i.e., posting on the Web
site) of some data elements that are proposed in this action to be
released. Recognizing that the Inputs to Emission Equations Data
Category may contain data elements that are considered sensitive by
many businesses (see Section II.C of this preamble for a description of
the data elements included in this data category), EPA considered
whether delaying publication of the data in this and possibly other
data categories by a given time period would ease businesses' concerns
regarding the release of this data. (The data might be less sensitive
and less likely to cause harm if it were to be released at a later
date, when it would be less current). However, even if EPA does not
automatically release Part 98 data that are determined to be emission
data or non-CBI but are nonetheless considered by the businesses to be
sensitive data, that data would still be subject to FOIA request.
Therefore, per FOIA regulations and consistent with EPA's final
confidentiality determination, emission data and non-CBI would be
released. For the reason stated above, EPA believes that this option
does not resolve the industry's concern and only unnecessarily delays
release of information that must be made public pursuant to CAA section
114(c).
    EPA also considered delaying the final confidentiality
determination by one year. However, as in the previous scenario, EPA
would still be subject to FOIA requests during the one year period
before issuing the final confidentiality determination. Once the case-
by-case decisions are made through the FOIA process, data that are
determined to be not entitled to confidential treatment would be
released pursuant to EPA's CBI regulations. Given the number of data
elements and reporters covered by Part 98, the intent of this proposed
action is to avoid these case-by-base decisions. In addition, this
approach would have no effect on data submitted in the years subsequent
to the first year of reporting.
    For these reasons, EPA concluded that delaying publication of
potentially sensitive data or delaying our final confidentiality
determination would not ease businesses' concerns regarding the release
of reported data. While we believe that neither of these approaches is
a viable option, EPA solicits comment on whether delaying publication
of certain data elements would ease business concerns and whether there
are any alternative approaches that would allay such concerns while
enabling us to meet our obligations under FOIA and CAA.
    Duration of Confidentiality Treatment. In the interest of
transparency and consistency with the practice of other EPA programs'
release of all data (e.g., Acid Rain Program), EPA solicits comment on
whether, for data reporting elements that are proposed today to be
entitled to confidential treatment, the confidential treatment of such
data should be time limited (i.e., whether these items could be
released without causing substantial harm to business after a certain
period of time). If stakeholders believe that data elements that are
proposed to be entitled to confidential treatment could eventually be
released without causing substantial harm to business, please specify
which data elements fall into this group, the amount of time delay that
would be required prior to release, and the reason for the change in
the proprietary nature of the data element.

C. Direct Emitting Facilities

    Direct emitting facilities are those facilities subject to Part 98
that directly emit GHGs to the atmosphere. They include stationary fuel
combustion sources that meet the criteria in 40 CFR 98.2(a)(3)) and
facilities containing any of the source categories listed in 40 CFR
98.2(a)(1) and (a)(2) (including source categories proposed on April
12, 2010). This section of the preamble covers all of the data elements
required to be reported for these source categories (subparts) and
certain data elements in proposed amendments to Part 98. This section
also covers certain data elements from proposed 40 CFR part 98, subpart
RR (Injection and Geological Sequestration of CO2) that are
related to emissions to the atmosphere from reporting facilities (i.e.,
emissions from surface equipment and from the leakage of CO2
from geologic sequestration\7\). All remaining data elements for 40 CFR
part 98, subpart RR are covered in Section II.D of this preamble
because they are not related to direct emissions.
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    \7\ Leakage is defined in proposed subpart RR as the movement of
CO2 from the injection zone to the surface (for example
to the atmosphere, indoor air, oceans or surface water) (see 75 FR
18576, April 12, 2010).
---------------------------------------------------------------------------

    In addition to data elements reported in the annual GHG reports,
this section includes data elements in applications from adipic acid
and nitric acid producers for approval of alternative methods
(excluding supporting documentation \8\) and BAMM extension requests.
EPA has categorized each data element into one of 11 data categories.
This section describes the data elements within each of the 11 data
categories and proposes whether the data in each category will be
treated as confidential.
---------------------------------------------------------------------------

    \8\ EPA recognizes that supporting documentation included in
applications for approval of alternative methods from adipic acid
and nitric acid producers may include information that is sensitive
or proprietary, such as detailed process designs or site plans.
Because the exact nature of this documentation cannot be predicted
with certainty, EPA proposes to make case-by-case confidentiality
determinations under CAA section 114(c) for any supporting
documentation claimed confidential by applicants either upon receipt
of such information or upon a request for such information after
receipt.
---------------------------------------------------------------------------

1. Data Categories
    The data categories for ``direct emitting'' facilities are as
follows and are further described in Sections II.C.2 through II.C.12 of
this preamble:
     Facility and unit identifier information.
     Emissions.
     Inputs to emission equations.
     Calculation methodology and methodological tier.
     Data elements reported for periods of missing data that
are not inputs to emission equations).
     Unit/process ``static'' characteristics that are not
inputs to emission equations.
     Unit/process operating characteristics that are not inputs
to emission equations.
     Test and calibration methods.
     Production/throughput data that are not inputs to emission
equations.
     Raw materials consumed that are not inputs to emission
equations.

     Process-Specific and Vendor Data Submitted in BAMM
Extension Requests.
    Sections II.C.2 through II.C.12 of this preamble describe the
proposed determination for each of the 11 data categories for direct
emitting facilities and provide the rationale for EPA's proposed
determination. A list of all the data elements assigned to each
category is provided in a memorandum (see Memorandum ``Data Category
Assignments for Reporting Elements to be Reported under 40 CFR Part 98
and its Amendments'' in Docket EPA-HQ-OAR-2009-0924 and the Web site
(http://www.epa.gov/climatechange/emissions/CBI.html.
2. The Facility and Unit Identifier Information Category
    EPA proposes to determine that facility and unit identifiers are
``emission data'' under 40 CFR 2.301(a)(2)(i).
    Description of data elements. Part 98 requires sources to report
information needed to identify each facility and emission unit subject
to reporting. Facility identifying information must be reported by all
facilities as specified in 40 CFR part 98, subpart A. Unit-specific
identifying information is reported if required by an applicable source
category subpart. Unit-specific identifying information is required in
those subparts that require emissions to be calculated on a unit-by-
unit basis. For these source categories, unit-specific data are needed
to calculate emissions using the procedures in Part 98, so the unit
associated with the emissions must be identified.
    Data elements in this category include the following data elements
required under 40 CFR part 98, subpart A to be included in each annual
report: Facility name and physical street address, including the city,
State, and zip code; the year and months covered by the report; the
date of submittal of the report; and a signed and dated certification
statement of the accuracy and completeness of the report, which is
provided by the designated representative of the owner or operator.
Also included are data elements from the proposed amendments to the
reporting requirements in 40 CFR part 98, subpart A (75 FR 18455, April
12, 2010). These data elements include: U.S. parent company(s),
percentage ownership of each parent company, and all applicable NAICS
codes.
    The data elements in this category also include the information
required by individual subparts of Part 98 for identifying each
emission unit for which emissions must be reported, including, an
emission unit or group identification number and the type of unit
(e.g., cement kiln, electric arc furnace, glass production furnace,
lead smelting furnace, engine, turbine, boiler, process heater).
    This data category also includes facility and unit identification
information submitted to EPA in applications from adipic acid and
nitric acid facilities for approval of alternative methods (applicable
to 40 CFR part 98, subparts E and V only) and BAMM extension requests.
These data elements include: The facility name and physical address;
identification numbers for emission units, common exhaust stacks, and
common pipelines; number and type of units; and descriptions of
monitoring equipment.
    Rationale for Proposed Determination. As discussed in Section I.C
of this preamble, emission data must be available to the public and is
not entitled to confidential treatment under CAA section 114(c).
``Emission data'' is defined in 40 CFR 2.301(a)(2)(i)(A) to include,
among other things, ``information necessary to determine the identity,
amount, frequency, concentration, or other characteristics (to the
extent related to air quality) of any emission which has been emitted
by the source* * *'' EPA considers the term ``identity * * * of any
emission'' as not simply referring only to the names of the pollutants
being emitted, but to also include other identifying information, such
as from what and where (e.g., the identity of the emission unit) the
pollutants are being emitted. Further, 40 CFR 2.301(a)(2)(i)(C)
specifies that emission data includes ``[a] general description of the
location and/or nature of the source to the extent necessary to
identify the source and to distinguish it from other sources* * *''.
Consistent with the definition of emission data described above, EPA
considers facility and emission unit identifiers to be source
information or ``information necessary to determine the identity * * *
of any emission which has been emitted by the source,'' and therefore
emission data under 40 CFR 2.301(a)(2)(i).
    The 1991 EPA notice of policy (discussed in Section I.F of this
preamble) provided a list of data fields that EPA considered to be
emission data. For example, in the 1991 notice, EPA considered that
plant name, address, city, State, zip code, emission point or device
description, SIC code, and Source Classification Code (SCC) are
emission data. Therefore, the public has been on notice that EPA
considers many of the data elements in this data category to be
emission data and thus not entitled to confidential treatment. The 1991
notice also makes clear that the list of data is not comprehensive and
that other data might be found to constitute emission data.
    Summary. EPA is proposing to determine that data elements in the
Facility and Unit Identifier Information Category are ``emission data''
as defined in 40 CFR 2.301(a)(2)(i). Under CAA section 114(c), emission
data cannot be held confidential and must be available to the public.
EPA solicits comments on this proposed determination, including whether
the data category determination is appropriate as well as whether the
appropriate data elements were assigned to this category.
3. The Emissions Category
    EPA proposes to determine that the GHG emissions to be reported by
direct emitters are ``emission data'' under 40 CFR 2.301(a)(2)(i).
    Description of data elements. Data elements included in this data
category are the GHG emissions to be reported by direct emitters under
Part 98. Under 40 CFR part 98, subpart A, all direct emitters must
report annual CO2e emissions and must also report emissions
by GHG and source category. In addition, certain direct emitters are
required to report GHG emissions in more detail as specified in the
applicable source categories subparts in Part 98. Each of these
subparts lists the specific GHGs to be reported for a particular source
category and whether facility emissions are reported only at the
source-category level or separately for each process, manufacturing
line, or emission unit within a source category. In general, emissions
are reported at the same level of detail in which they are calculated
or measured. If emissions are calculated or measured for individual
emission units, they are also reported for individual units. In some
cases, emissions are calculated or measured, and reported, for a group
of units that share a common fuel supply line or a common stack. For
some source categories, facilities calculate and report only their
total emissions from the source category based on an overall mass
balance, rather than calculating and reporting emissions by process
line or unit.
    Provided below are some examples of the data elements in the
Emissions Category:
     CO2, CH4, and N2O
emissions from each stationary combustion unit (40 CFR part 98, subpart
C).
     Process N2O emissions from adipic acid
production (40 CFR part 98, subpart E).

     Process CO2 and N2O emissions from
each electric arc furnace at a ferroalloy production facility (40 CFR
part 98, subpart K).
     Process CO2 emissions from each glass furnace
and all furnaces combined at a glass manufacturing facility (40 CFR
part 98, subpart N).
     Process CO2 emissions from each soda ash
manufacturing line at soda ash manufacturing plants (40 CFR part 98,
subpart CC).
    For each facility, GHG emissions are reported at the facility
level, the subpart level, and, in many cases, the emission unit or
process level. For example, petroleum refineries will report GHG
emissions under 40 CFR part 98, subpart A and under 40 CFR part 98,
subpart Y at the following separate levels:
     Annual CO2e emissions (excluding biogenic
CO2) aggregated for all GHG from all applicable source
categories (i.e., one value for the whole facility).
     Annual emissions of biogenic CO2 aggregated for
all applicable source categories (i.e., one value for the whole
facility).
     CO2, CH4, and N2O coke
burn-off emissions from each catalytic cracking unit, fluid coking
unit, and catalytic reforming unit.
     CO2 emissions from sour gas sent off site for
sulfur recovery operations.
     CO2 process emissions from each on-site sulfur
recovery plant.
     CO2, CH4, and N2O
emissions from each coke calcining unit.
     CO2 and CH4 emissions from asphalt
blowing operations.
     CH4 emissions from equipment leaks, storage
tanks, loading operations, delayed coking units, and uncontrolled
blowdown systems.
     CO2, CH4, and N2O
emissions from each process vent not specifically covered above.
     CO2 and CH4 emissions from non-
merchant hydrogen production.
    Rationale for Proposed Determination. EPA proposes to determine
that the emissions at each reporting level constitute ``emission
data.'' ``Emission data'' is defined in 40 CFR 2.301(a)(2) as
``information necessary to determine the identity, amount, frequency,
concentration, * * * of any emission which has been emitted by the
source * * * ''. As described above, the data elements in this category
consist of all emissions to be reported under Part 98. These data
elements are clearly information regarding the identity, amount, and
frequency of any emission emitted by the reporting direct emitters and,
therefore, they are ``emission data.''
    As described above, EPA proposes that all emissions reported by
direct emitters under Part 98, including emissions of each GHG at the
levels required by the applicable rule subparts (e.g., facility-level;
by source category; and by process, process line, or unit), are
``emission data.'' Facilities are also required to report GHG emissions
in terms of CO2e, which is also part of this data category,
and is considered to be emission data. For those source categories
where the methodology requires emissions to be calculated at a process
line or unit level, the calculated emissions for each process line or
unit are the identity and quantity emitted by the source and are
``emission data'' within the meaning of 40 CFR 2.301(a)(2). Likewise,
emissions broken out by GHG are needed to determine the ``identity'' of
the emissions and to calculate CO2e. In summary, all
reported emissions are ``emission data.''
    As discussed in Section I.F of this preamble, in the 1991 EPA
notice of policy (35 FR 7042, February 21, 1991), EPA identified,
without attempting to be comprehensive, data elements that EPA
considered to constitute emission data. The 1991 notice lists the
``Emission type (e.g., the nature of emissions, such as CO2,
particulate or a specific toxic compound, and origin of emissions such
as process vents, storage tanks or equipment leaks)'' and ``Emission
rate (e.g., the amount released to the atmosphere over time such as kg/
yr or lbs/yr)'' as data that are not entitled to confidential treatment
and are, therefore, releasable to the public. Our proposed
determination for this data category is consistent with the 1991
notice, which considers that identity (e.g., CO2,
N2O, SF6) and emission rate (i.e., the amount
emitted during a specified time period) are emission data and not
entitled to confidential treatment.
    Summary. EPA proposes to determine that the data elements in the
Emissions Category are ``emission data'' as that term is defined at 40
CFR 2.301(a)(2)(i). EPA solicits comments on this proposed
determination, including whether the data category determination is
appropriate as well as whether the appropriate data elements were
assigned to this category.
4. The Inputs to Emission Equations Category
    EPA proposes to determine that data elements in the Inputs to
Emission Equations Category are ``emission data'' under 40 CFR
2.301(a)(2)(i).
    Description of data elements. The data elements in this category
consist of inputs to the equations specified in Part 98 for calculating
emissions to be reported by direct emitters. Part 98 requires direct
emitters to calculate annual mass emissions (metric tons per year) for
each GHG. Specific calculation methods are contained in each direct
emitting source category subpart.
    Data elements included in this category are inputs to the emission
equations used by the reporting direct emitting sources to calculate
their annual GHG emissions under Part 98. Each subpart specifies the
equations that must be used to calculate GHG emissions and the inputs
to the equations that must be reported for a particular source
category. Many of these subparts provide more than one calculation
method for a process or unit and allow reporting facilities to select
their preferred method from those provided. Therefore, the specific
data elements to be reported depend on the source category and on the
calculation method chosen.
    All reported data elements that are inputs to a GHG emission
calculation equation used by the reporting facilities are assigned to
this category. Accordingly, this data category includes data elements
such as raw materials consumed, unit/process characteristics, and
production/throughput data that are used by a reporting facility as
inputs to an emission equation. As discussed in Section II.C.1 of this
preamble, there are separate data categories for raw materials
consumed, unit/process characteristics, and production/throughput data
that are not inputs to equations (either because they are not part of
any emission calculation equations provided in Part 98 or the reporting
facility chooses to use another calculation method that does not use
these data as inputs).
    Examples of data elements in the Input to Emissions Equations
Category include the following:
     Fuel information used by reporting facilities as inputs to
emissions equations, such as mass or volume of fuel combusted (per
year), fuel type, molecular weight of gaseous fuels, high heat value,
and quantity of biomass consumed (40 CFR part 98, subpart C).
     Control device information used by reporting facilities as
inputs to emissions equations, such as the destruction efficiency (40
CFR part 98, subparts E and V), sorbent used in the reporting year (40
CFR part 98, subpart C), and abatement utilization factor (40 CFR part
98, subparts E and V).
     Production/throughput and raw material consumption
information used by reporting facilities as inputs to emissions
equations, including volume or mass of feedstock for source categories
such as ammonia manufacturing (40 CFR part 98, subpart

G), hydrogen production (40 CFR part 98, subpart P), and petrochemical
production (40 CFR part 98, subpart X); and volume or mass of product
produced for source categories such as ferroalloy (40 CFR part 98,
subpart K), lead (40 CFR part 98, subpart R), and zinc production (40
CFR part 98, subpart GG).
     Characteristics of raw materials, products, and by-
products used by reporting facilities as inputs to emissions equations,
such as the carbon content of petroleum coke used in silicon carbide
production(40 CFR part 98, subpart BB), inorganic carbon content of
trona or soda ash for soda ash manufacturing (40 CFR part 98, subpart
CC), molecular weight of sorbent (40 CFR part 98, subpart C), molecular
weight of raw materials (40 CFR part 98, subparts G and X), Calcium
oxide and magnesium oxide content of clinker used in cement product (40
CFR part 98, subpart H), carbonate content of raw materials used in
glass production (40 CFR part 98, subpart N), and hourly CO2
concentration in liquid alkaline feedstock for soda ash manufacturing
(40 CFR part 98, subpart CC).
     Operating information that are used by reporting
facilities as inputs to emissions equations, such as hourly average
CO2 concentration in exhaust gases, hourly average stack gas
volumetric flow rate, hourly moisture percentage in the stack gas, mass
of steam generated by fuel combustion, and operating time (40 CFR part
98, subpart Y).
     Site-specific emission factors, used by reporting
facilities as inputs to emissions equations, for source categories such
as adipic acid production (40 CFR part 98, subpart E), nitric acid
production (40 CFR part 98, subpart V), and iron and steel production
(40 CFR part 98, subpart Q).
     Equipment or system specifications that are used by
reporting facilities as inputs to emissions equations to calculate GHG
emissions, such as the collection efficiency of landfill gas systems
(40 CFR part 98, subpart HH).
    Rationale for Proposed Determination. As discussed in Section I.C
of this preamble, emission data must be available to the public and is
not entitled to confidential treatment. ``Emission data'' is defined in
40 CFR 2.301(a)(2) as ``information necessary to determine the
identity, amount, frequency, concentration, * * * of any emission which
has been emitted by the source * * *''. Consistent with this definition
of emission data, EPA considers inputs to emission equations to be
``information necessary to determine * * * the amount'' of any emission
emitted by the source.
    As explained above, many subparts allow the facility to select from
two or more calculation methods. For example, many source category
subparts allow companies to choose to calculate emissions by either (1)
measuring gas flow rates and emissions concentrations with CEMS and
using those data to calculate annual mass emissions, or (2) using
emission calculation equations provided in the rule and site-specific
input data needed to perform the calculation. However, once a facility
selects a calculation method, then the equation becomes the only way
for determining such emissions for the time period the selected
calculation method is used.\9\ Since the data inputs required by the
selected equation are needed to perform the emission calculation, these
inputs to the equation are information ``necessary to determine'' the
calculated emissions.
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    \9\ 40 CFR 98.3(e) allows a reporter to switch methods during
the reporting year as long as they document the date and reason for
the change in their annual report.
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    Our proposed determination for this data category is consistent
with the 1991 EPA notice of policy on emission data. Some of the data
fields listed in the 1991 notice are the same as some of the data
elements in this data category. For example, in the 1991 notice, EPA
considered the emission rate, emission concentration, and emission
density or molecular weight to be emission data and therefore
releasable to the public.
    Summary. EPA proposes to determine that the data elements in the
Inputs to Emission Equations Category are ``necessary to determine''
the sources' emissions and are therefore ``emission data'' as defined
in 40 CFR 2.301(a)(2)(i). EPA solicits comments on this proposed
determination, including whether the data category determination is
appropriate as well as whether the appropriate data elements were
assigned to this category.
    Use of Continuous Monitoring Systems (CEMS). EPA notes that in many
cases the use of CEMS reduces the number of data parameters required to
be reported. Many subparts allow facilities to choose between using
CEMS and using source-category specific GHG calculation procedures.
This action proposes that for direct emitting facilities, inputs to
emission calculation equations are ``emission data'' and would be
released. However, if a facility chooses to use CEMS to determine
CO2 emissions from a particular process, then emissions are
directly measured, and the facility would have no reported data
elements that are inputs to CO2 emission equations. For
example, all ammonia production facilities must report the amount of
feedstock used; however, under the proposed determinations, this data
would be treated as confidential only for facilities using CEMS. For
facilities that do not use CEMS, the feedstock data would not be
eligible for confidential treatment since it is used as inputs to the
mass balance equations provided in 40 CFR part 98, subpart G and would
be considered ``emission data''.
    In addition, facilities that use CEMS generally have to report
fewer data elements than those using emission equations. For example,
ammonia production facilities that do not use CEMS must report the
carbon content, as well as the amount, of each feedstock used.
Therefore, by using CEMS, a reporting facility would be required to
submit a more limited range of data elements, thereby potentially
alleviating any concern for other data not required.
    EPA recognizes that there are some situations where use of a CEMS
for one GHG will not avoid release of data elements used to calculate
emissions of other GHGs. For example, many facilities that use CEMS to
determine CO2 emissions from stationary combustion sources
will use calculation procedures to determine CH4 and
N2O emissions from the same combustion sources. In this
case, reported data elements such as fuel use and higher heating value
(HHV) for these combustion units would be inputs to emission equations
for CH4 and N2O emission calculations and would
therefore be released, regardless of the fact that CEMS are used to
determine CO2 emissions.
    EPA solicits comments on whether and to what extent the use of CEMS
would relieve industry concerns regarding making data available to the
public. We specifically solicit comment on the extent to which industry
would take advantage of the option if EPA added CEMS methodologies for
CH4 and N2O to the Mandatory Reporting Rule where
appropriate.
5. The Calculation Methodology and Methodological Tier Category
    EPA proposes to determine that the reported calculation methodology
and the methodological tier used by a reporting facility to calculate
its GHG emissions are ``emission data'' under 40 CFR 2.301(a)(2)(i).
    Description of data elements. Data elements included in this
category are the methodology used by a reporting facility to calculate
its annual GHG emissions under Part 98, including the

methodological tiers used to calculate CO2 emissions from
fuel combustion under 40 CFR part 98, subpart C. This category also
includes data elements that are used to determine the correct
calculation method or to select the correct input for a GHG emission
calculation.
    Each subpart of Part 98 specifies the method(s) that must be used
to calculate GHG emissions. Some subparts allow a choice of two or more
specified alternative methods. When this occurs, the rule requires that
the method chosen be reported. The methods vary by subpart but may
include, for example, the following: