ITAR defines "technical data" as "information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of `defense articles'." Similarly, the EAR prohibits the export of controlled "development", "production" and/or "use" technology:
Development : "is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts."
Production: "means all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, quality assurance."
Use: means "operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing."
For example, under EAR ECCN 1E001 alone - the EAR prohibits the export of development and production technology for a wide number of products and intermediate materials that are EAR-controlled, including:
   * components made from fluorinated compounds
   * composite structures or laminates made from certain organic, metal or carbon matrices,
   * carbon filamentary materials, certain non-aromatic polymides in film, sheet, tape or ribbon form
   * gas mask filter canisters and decontamination equipment for defense against biological agents, radiological agents, chemical warfare agents or riot control agents
   * body armor
   * equipment and devices designed to initiate charges
   * devices containing energetic materials.
This technology is expressly controlled for export due to national security, nuclear non-proliferation, anti-terrorism, missile technology, and other risks.
The prohibitions against exports include not only physical exports of product or technology, but also "deemed exports", (the sharing within the United States of controlled technology to those who are not United States citizens or permanent residents, refugees or asylees of the United States and possess citizenship of countries to which the technical data is controlled).
While it is possible to publish and make "publicly available" EAR-controlled technology without violating the EAR, to release to the public ITAR controlled technology requires the prior written approval of the cognizant government agency. In other words, to require the public release of ITAR controlled technology, the EPA or the company would likely first need to obtain the approval of the cognizant agency, which could vary depending on the information in question. See 22 CFR 120.11(a)(7) (definition of public domain) and http://www.aia-aerospace.org/assets/security_handbook_07.pdf (handbook explaining the process to get approval for public release of ITAR controlled technology).
In consideration of United States export control regulations, 3M scientists have evaluated the level and detail of process-specific emissions information currently required by this Subpart L proposal, and have advised that providing such emission information would include the disclosure of controlled production technology and possibly, technical data to the EPA, i.e., technical data related to perfluorochemical manufacturing. This information includes information that EPA is proposing to hold as CBI under Subpart L as well as information that is not designated by EPA as CBI because EPA has labeled it "emission data."
In response, to remain in compliance with United States export control regulations, EPA personnel would need either to request authorization to publicly release such information or to implement an export control plan to ensure compliance with all United States export control regulations. It would need to ensure that it can identify and segregate such information on United States based servers with restrictions on sharing internally and externally with anyone to whom the technology would be controlled. It would also need to put in place controls to protect against unauthorized disclosure by employees and others at the EPA. This would be a difficult and detailed process to implement and maintain in general - compounded by the fact that the EPA will not necessarily be in possession of the additional scientific information to enable it to evaluate which data it possesses that triggers the export control requirements.
EPA has proposed categorizing a substantial amount of process-related information under Subpart L as non-CBI because EPA believes it is "emission data" and therefore available to the public. If EPA pursues the approach of implementing an export control plan to protect against unauthorized disclosure of export controlled process-related information to the public, EPA would need to reconcile this control or non-disclosure with its standard position to the contrary, that emission data should be available to the public.
 . . .if EPA decides not to pursue the export control plan and requests and obtains authorization to publicly release export controlled data (which seems unlikely due to the nature of this information), 3M would still consider this information trade secret and CBI, and would object to release of that information as not within EPA's authorization under the law.
An EPA process to manage this information is made even more complicated by the fact that the information EPA requires 3M to report under Subpart L must be submitted as early as March 31, 2012 (effective April 2, 2012 due to the weekend), only a little over two weeks after the deadline for these comments. In addition, subsequent reporting under Subpart L must be submitted electronically in EPA's e-GGRT database. 3M has been advised by its legal counsel that posting any export controlled technical data on any site that does not have controls to prohibit viewing by those from whom the technical data should be controlled would be a violation of export laws by 3M.
Accordingly, 3M cannot submit the export-controlled information at this point (whether EPA has preliminarily determined it CBI or not). Moreover, under the proposed rule, 3M is concerned that some of this process-specific information that is export-controlled will be made available to the public as emission data, because EPA has proposed to categorize it as "emission data."
We have been advised that 3M not post such information, but identify that we have it, that it is export controlled, and that 3M desires to discuss with the EPA how to provide the required information in a manner that ensures that (a) it is being provided to someone at EPA who can accept it without 3M obtaining a license, (b) it is clearly marked as export controlled, and (c) we provide it in a format/manner that does not constitute a violation (e.g. not put it on an open server). 3M asks for an extension of the deadline for submission of information under Subpart L until these export control issues and CBI issues can be resolved in a manner consistent with other Subparts, including OO and I, and in a manner consistent with EPA's authorization.
As requested previously in ACC comments, to mitigate risk to the United States and to avoid export control issues for Subpart L facilities as well as for EPA, such detailed process-specific emissions information should not be required under the MRR. One solution would be for EPA to instead report facility-wide information in CO2 equivalents in the same manner that it is being reported for Subpart OO. To the extent that any process-specific emissions information is required, any controlled technology information should be determined to be CBI for FOIA purposes, and EPA should also implement whatever additional restrictions are necessary to comply with export control regulations. EPA should assure that its practices for handling CBI are consistent with those practices utilized by the Department of Commerce for material and technologies/processes that are export controlled.
Comment Excerpt Number:  11
Comment: A fundamental problem with EPA's CBI designations is that these determinations are based on the emission calculation methods and not on whether the information is actually business confidential. In certain cases significant amounts of information would become publicly available and for similar processes elsewhere much less information would be made available to outside parties. For example, under Subpart L, if a facility utilizes the mass balance method, which is the approach under Section 98.126(b), much of the information regarding process inputs and outputs would be made publicly available. All of this information may be routinely protected by state agencies when contained in permit or emissions reporting documents, however. For some processes, the information reported under §98.126(b) may be much more detailed than what would be required under §98.126(c) (the emission factor approach). Another example that was previously cited is the scoping analysis required under §98.126(c)(3). If process streams are used for this determination, the information is considered CBI; if vent gases are used for the scoping analysis EPA does not consider the information CBI. In the case of fugitive emissions, some processes will allow for the consolidation of emissions over a large process while emissions in other cases will be reflective of very specific chemistries and processes.
Comment Excerpt Number:  13
Comment: More important than the inequity that may result from differences in the emissions calculation methods is the fact that 3M as a United States supplier and manufacturer would be placed at a competitive disadvantage with foreign manufacturers and suppliers. ACC member companies have reviewed CBI practices at non-United States locations. Much more information will be reported under the MRR rule than is customarily reported at non-United States locations. In addition, the CBI practices at foreign locations are much more protective of process information than what is being proposed under the MRR. In almost all cases, government agencies outside the United States limit the information requested so it does not implicate trade secret information.
On Tuesday, February 29, 2012, President Obama signed an executive order creating the Interagency Trade Enforcement Center. The White House said the order "will institute a more aggressive 'whole-of-government' approach to getting tough on trade enforcement by monitoring and enforcing US rights under international and domestic trade rules and countering unfair subsidies that tilt the global market against US firms." As reported by the Associated Press (AP), the office will expand the administration's ability to challenge unfair trading practices in China and elsewhere." AP noted: The President "has accused China of subsidizing homegrown companies and allowing counterfeiting and intellectual piracy. The president's most recent budget proposal asks Congress for millions of dollars for the new enforcement center and more US inspectors in China."
3M is aware that manufacturers outside the United States would welcome information on 3M's trade secret manufacturing processes at facilities subject to Subpart L. EPA should not be adopting rules that have the effect of promoting intellectual piracy in China or other countries, at the same time as the Administration is recognizing the real threat of piracy and in fact proposing millions of dollars in enforcement money to counter it.
By taking an unnecessarily broad interpretation of "emission data" as including process-specific emission information for purposes of the greenhouse gas emission reporting rules, EPA will be forcing public disclosure of sensitive business information that includes company trade secret information.
It is important to understand this issue from an intellectual property law and research and development perspective. Trade secret information is developed through company research and development. Companies spend years and years, and millions, and even billions, of dollars for R&D in developing and continually improving valuable product and process information. As an example, in 2009 3M invested $1.293 billion in R&D and related expenditures. 3M invested $6.861 billion in R&D and related expenditures for the past five years.
Sensitive R&D information is reflected in the details of a company's manufacturing and process information. This information has economic value only as long as the information remains confidential and, therefore, unavailable to competitors. This is trade secret information, a long recognized form of intellectual property in the United States and elsewhere in the world. Companies like 3M invest in R&D efforts in reliance on the protection that federal and state laws provide for their intellectual property, laws that allow them to protect their trade secrets and confidential information long enough to allow them to recoup their R&D investment and to realize the potentially significant economic rewards that are available in the commercial marketplace. This potential for economic reward provides significant commercial incentive to companies doing business in the United States.
America's intellectual property laws have created a framework in which American companies have been encouraged to invest in research in development, to innovate and develop new technologies. Examples of this are the Silicon Valley, Microsoft, Apple, and 3M. We have seen that companies in other parts of the world later copy or reverse engineer and manufacture technologies developed here in America at a much lower cost. But because of our framework of intellectual property laws that to date have encouraged and protected R&D and innovation, many of the great ideas have started and been developed into products here in America. Arguably one of the things we have done best in this country is to create the right framework for bringing new ideas and technology to the marketplace. A significant part of that framework is the protection of intellectual property and the recognition that trade secrets and competitively sensitive information are important and valuable assets to American companies.
EPA's proposed rule that would require disclosure of process-specific trade secret information changes this framework. Through one deliberate action, EPA could compromise multi-million dollar R&D investments by American companies. Companies throughout the world could use this information to copy the technology or processes that American companies have worked so hard and invested so much to create, without having to make that same R&D investment. It creates an unfair competitive advantage for the companies that use this information, and obviously damages the financial wherewithal and global competitiveness of the American companies that lost their valuable trade secret information.
Instead of fostering innovation, EPA rules that force disclosure of trade secrets could discourage innovation by discouraging companies from investing in R&D here in the United States. These types of rules may cause companies to decide to locate their facilities in other parts of the world in order to protect their ideas and their R&D investments.
EPA should adopt regulations that recognize the value of company trade secret information and safeguard that information. EPA should not be adopting regulations that force disclosure of and thereby take away valuable company trade secret information, promoting intellectual piracy by other countries and damaging the global competitiveness of American companies.
Comment Excerpt Number:  27
Comment: 3M's facilities subject to Subpart L are involved in specialized materials manufacturing. Most other entities with facilities subject to Subpart L are manufacturing common commercial chemicals for which detailed process and chemical information is available in the public sector.
Most of 3M's manufacturing processes covered by Subpart L, however, have customized configurations and customized process characteristics. 3M has invested over $100 million and six decades in R&D to develop the unique processes at its facilities. Some of the chemicals and products manufactured by 3M at facilities in the United States are produced by no other facility in the world. Some of these are subject to export control requirements, and certain information may not be released to the public sector. Competitive fluorochemicals are to 3M's knowledge not manufactured by any other company in the United States, but they may be manufactured by companies in overseas locations. While 3M does not possess detailed information on the locations and manufacturing configurations of its competition, we believe many of their products are produced outside the United States where Subpart L data is not being reported. An overwhelming majority of 3M's fluorinated gas production is located within the United States. Accordingly, 3M may be uniquely affected by this proposed rule. 3M may be the only manufacturer of fluorinated gases that faces the possibility that its trade secret manufacturing information will be released as a result of EPA's determinations that certain process-related chemical identities and other information is not CBI.
There is no patent for process-related information. 3M relies on trade secret protection to maintain the value of its investment in technology. 3M is very careful to take measures to preserve the secrecy of this information, including (a) requesting that the information be held confidential in this and other submissions to federal, state and local agencies, (b) keeping the information in secure buildings, protected by security guards at entrances, to which non-company personnel do not have access (unless given special security clearance or escort), (c) entering confidentiality agreements with its employees, and (d) entering confidentiality agreements with its consultants, contractors and customers.
If the specific chemical identities in emission streams, by process, and other process-related information described . . . are made public this would reveal highly confidential aspects of process configurations and characteristics for 3M's facilities subject to Subpart L. It would include data on product chemical compositions. It could allow competitors to duplicate the process and create the products without having to make the multi-million dollar research and development investments, thus giving them a substantial competitive advantage. Because they have not had to incur the R&D costs, it could allow competitors to out-compete these facilities, causing loss of sales, business, and potentially loss of jobs.
Comment Excerpt Number:  29
Comment: EPA's proposal would allow competitors to learn process-related trade secret information when 3M first reports the information, and it would also allow competitors to see how 3M might change its processes, configurations and chemistries as 3M reports this information in the future. This would be potentially very damaging to 3M and would give competitors substantial competitive advantages. EPA's advance determinations on CBI do not adequately take into account the possibility that United States manufacturing facilities will innovate and change or come up with unique manufacturing methods in the future that will need CBI protections. EPA's advance determinations seem to contain the assumption that a currently non-CBI process will always remain non-CBI, or that processes will always remain the same. They do not seem to allow for novel changes in manufacturing processes or production methods that a facility would want to protect as trade secret. By not allowing facilities to make CBI claims as they arise, EPA is not being realistic about the possibility of developments in manufacturing and in effect is discouraging innovation.
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Data Elements in Categories with Categorical CBI Determinations  -  Subpart L
Commenter Name:  Bredan Mascarenhas, Manager of Regulatory and Technical Affairs
Commenter Affiliation:  American Chemistry Council (ACC)
Document Control Number:  EPA-HQ-OAR-2011-0028-0017
Comment Excerpt Number:  1
Comment: As referenced in the separate comments on this proposal submitted by ACC member 3M, the emissions streams produced as a result of a particular process may contain information that is identical to the chemical identities used in the process. This information, if made available to the public, would allow for others, particularly overseas competitors, to easily reverse engineer a production process and thus obtain critical trade secrets. As this information can contain sensitive CBI, the Agency should not require its disclosure as information open to the public, but rather classify this data element as confidential. Concerns with some of the specific proposed CBI determinations in Subpart L are provided below.
A. Sections 98.126(a)(2)(i)-(iv)--Total mass of each F-GHG emitted from each fluorinated gas production process (metric tons), and from all fluorinated gas production processes combined; total mass of F-GHG emitted from certain fluorinated gas transformation processes; mass of F-GHG emitted from venting of residual F-GHGs from containers returned from the field:
EPA has proposed that this information is not CBI, but reportable as emission data. ACC disagrees with this determination because specific cases exist where this information would be considered CBI. Reporting emissions for specific processes would result in the availability of process-specific information that has not been placed in the public domain. This could reveal trade secret information about the number of process steps, which is technologically sensitive information that facilities take great care in protecting. The emissions information that is reported under §98.126(a)(2)(i), combined with the mass of each fluorinated GHG emitted from each process vent (metric tons) being reported under §98.126 (c)(3), will, in some cases, disclose sensitive trade secret information. In many cases, the chemical composition of the product or an isolated intermediate can be determined from the emissions stream. Subpart L reporting is different from other environmental reporting in that the emissions from the process may be the product or byproducts of a reaction. Accordingly, this type of information can easily reveal novel production methods. The availability of this information would obviate the need for research and development investments by competitors to replicate the process. Chemical-specific information of this type has not been made available to the public previously. For example, in air permitting or emissions reporting, these emission constituents have been reported as Volatile Organic Compounds (VOCs) or another, more general descriptor, therefore allowing for the information`s accurate reporting while appropriately protecting specific chemical identities.
Comment Excerpt Number:  2
Comment: Section 98.126(a)(3) -- Chemical identities of the contents of the emission stream analyzed under the initial scoping speciation of fluorinated GHG, by process:
The proposed EPA determination for reporting Section 98.126(a)(3) raises significant concerns for the protection of confidential business information of Subpart L reporters. ACC and its members believe that the determinations under this section deserve further review by the Agency before finalization.
In EPA`s December 2011 memo (Memorandum A) accompanying the proposal, the data reported under §98.126(a)(3) for chemical identities of the contents of the stream(s) (including process, and destroyed streams) analyzed under the initial scoping speciation of fluorinated GHG at 40 CFR 98.124(a), by process were correctly determined to be data that is CBI and thus eligible for confidential treatment. As this scoping analysis contains integral data regarding the process streams in production, a CBI determination is appropriate in order to protect the sensitive information being disclosed.
However, the determination for the other scoping report data element, chemical identities of the contents of the stream(s) (including emissions) analyzed under the initial scoping of fluorinated GHG at 40 CFR 98.124(a), raises serious CBI concerns. In the matrix in Memorandum A, EPA determines this element to be available to the public as emission data, and thus not eligible for confidential treatment. This determination is apparently based on the Agency's broad interpretation of emission data, a classification that does not qualify the data for treatment as CBI. The concerns with EPA's broad interpretation are described in comments from ACC (excerpts of which are attached in Appendix A) on EPA's July 2010 confidentiality determinations for data under the Mandatory Reporting Rule (Docket ID No. EPA-HQ-OAR-2009-0924). The comments state that EPA has mistakenly defined emission data to be every piece of information or data upon which GHG emissions might be calculated. ACC goes on to recommend that when determining what information should be publicly available, EPA follow the model established by other reporting systems (e.g., TRI and California's Greenhouse Gas Emission Reporting system), discussed in more detail in attached Appendix A. In order to fully protect this information, the Agency should allow facilities to report emissions as aggregate CO2e emissions, consistent with Subpart OO.
The request for chemical identities in §98.124(a) has the potential to provide chemical-specific information, by process, on not only how the manufacturing process is configured, but also on the chemical formulas used in the manufacturing process. EPA has already conceded that this type of information is CBI when it involves chemical identities of process streams and destroyed streams under Subpart L. The chemical identities in §98.124(a) are the same type of trade secret information. ACC would point out that this determination unfairly targets those facilities or processes where a reporter decided to measure vent gas composition for scoping analysis and that EPA's proposed CBI determinations were made after reporters had already made these decisions.
Comment Excerpt Number:  3
Comment: As there are clear CBI concerns with information reported under §98.124(a)(4), ACC requests that EPA extend the current deadline of March 31, 2012 for Subpart L reporters. Further, some of this information also will be subject to export control laws, a fact that raises another set of concerns . . .. ACC member 3M asks that EPA consider this information as a static unit/process operational characteristic as opposed to emission data, given that it is baseline information that is not provided along with reported emission amounts. EPA has considered similar information for facilities subject to Subpart I as non-emission data, including disclosure of the "recipes" (e.g., specific combination of gases used to fabricate a specific feature on a film or substrate), process sub-type, or type associated with each abatement system for specific process steps, because EPA recognized that it would provide insight into how the reporting facility is configured and achieves its specific manufacturing performance. EPA should use the same rationale for this "chemical identity" information.
Comment Excerpt Number:  4
Comment: Section 98.126(c)(4) -- Mass of each F-GHG emitted from equipment leaks: EPA has proposed that the information under §98.126(c)(4) is emissions data and therefore cannot be CBI. However, this determination could result in the disclosure of sensitive information. An example of this is the case of fugitive air emissions, which may be determined using various methods. Fugitive emissions in this source category are very low, but because this information is being reported by process and because all amounts are reportable, the composition of the product or an isolated intermediate can be determined from fugitive emissions information. For an operation that involves the handling of the final product, the composition of the fugitive air emission stream could easily be identical to the product content, since fugitive emissions are assumed to be reflective of the process fluids. EPA has considered this type of composition information CBI under Subpart OO and under §98.126(a)(6). Although EPA proposed that equipment leak information is not subject to CBI protection, when this same information is reported pursuant to §98.126(a)(6), the chemical formula and total mass produced of the fluorinated gas product in metric tons, by chemical and process, EPA determined it is CBI. All of the above information on production outputs and F-GHGs from process vents and processes should be held confidential. Normally, reports of process fugitive emissions are aggregated for an entire facility. In addition, this emissions information typically has been reported as part of a chemical group, i.e., VOCs. Reporting this type of information by process in the specificity required under Subpart L has not been required under air rules to date, and could result in the disclosure of CBI.
Comment Excerpt Number:  5
Comment: Information required to be disclosed under Part 98, Subpart L includes content that is controlled for export by various U.S. agencies for reasons including, but not limited to, national security, antiterrorism, nuclear non-proliferation, and chemical and biological weapons security. Once the Agency receives this information, it becomes responsible for ensuring that it controls this information in compliance with all U.S. export control regulations.
The Export Administration Regulations (EAR), 15 CFR 730-780, and the International Traffic in Arms Regulations (ITAR), 22 CFR 120-130, are the two principal U.S. export control regimes. ITAR, applicable to those products and technical data that are specifically designed or modified for military use and are on the Munitions List, prohibits virtually all exports to every country without export authorization by the State Department, following review by the Departments of State and Commerce. The EAR controls products, intermediate materials, raw materials components and accessories, technology, software and manufacturing that meet very detailed specifications delineated in the EAR. ITAR defines technical data as information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of --defense articles. Similarly, the EAR prohibits the export of controlled "development", "production" and/or "use" technology:
Development: "is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts."
Production: "means all production stages, such as: product engineering, manufacture, integration, assembly (mounting), inspection, testing, quality assurance."
Use: means "operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing."
For example, under EAR ECCN 1E001, the EAR prohibits the export of development and production technology for a wide number of products and intermediate materials that are EAR-controlled, including:
   * components made from fluorinated compounds;
   * composite structures or laminates made from certain organic, metal or carbon matrices;
   * carbon filamentary materials, certain non-aromatic polymides in film, sheet, tape or ribbon form;
   * gas mask filter canisters and decontamination equipment for defense against biological agents radiological agents, chemical warfare agents or riot control agents;
   * body armor;
   * equipment and devices designed to initiate charges; and
   * devices containing energetic materials.
This technology is expressly controlled for export due to concerns with national security, nuclear nonproliferation, anti-terrorism, missile technology, and other risks.
The prohibitions against exports include not only physical exports of products or technology, but also "deemed exports", i.e., the sharing within the U.S. of controlled technology to those who are not U.S. citizens or permanent residents.
While it is possible to publish and make "publicly available" EAR-controlled technology without violating the EAR, the release to the public of ITAR-controlled technology would require the prior written approval of the appropriate government agency. In other words, to require the public release of ITAR-controlled technology, the requiring company (in this case, EPA) would first need to obtain the approval of the appropriate agency, which could vary depending on the information in question. This process is described in 22 CFR 120.11(a)(7) (definition of public domain), as a handbook that outlines the process to obtain approval for public release of ITAR controlled technology.4
In consideration of U.S. export control regulations, ACC member company scientists have evaluated the level and detail of emissions information currently required by Part 98, and advised that providing such emission information could constitute the disclosure of controlled production technology and possibly technical data to the EPA.
To remain in compliance with U.S. export control regulations, EPA personnel would need either to request authorization to publicly release such information, or implement an export control plan to assure compliance with all U.S. export control regulations. The Agency would need to ensure that it can identify and segregate such information on U.S. based servers with restrictions on sharing internally and externally with anyone to whom the technology would be controlled. It also would need to put in place controls to protect against unauthorized disclosure by employees and others at the EPA. This would be a difficult and detailed process to implement and maintain. This problem would be compounded by the fact that EPA will not necessarily be in possession of the additional scientific information that would enable it to evaluate which data it possesses that may trigger export control requirements.
For all of the reasons noted above, this information should be treated as CBI and not publicly disclosed. EPA should also implement whatever additional restrictions are necessary to comply with export control regulations.
Comment Excerpt Number:  6
Comment: EPA`s proposed determinations in Subpart L create the strong likelihood of a competitive disadvantage for companies that may face serious discrepancies in the treatment of reported data. For example, if a company reports under Subpart L §98.126(b), all process inputs and outputs would be made available to the public, information that is routinely protected as CBI in permit or emissions reporting documents sent to state agencies. However, if a company reports under §98.126(c), much less information would be available to the public, allowing this company to protect its sensitive business information. To afford adequate protection to all U.S. companies, EPA should determine that all of the data is business confidential, regardless of the method of calculating emissions.
More important than the inequity that may result from differences in the emissions calculation methods that are used at U.S. locations, is the fact that U.S. suppliers and manufacturers would be placed at a competitive disadvantage with foreign manufacturers and suppliers. ACC member companies have reviewed CBI practices at non-U.S. locations. Much more information will be submitted and disclosed under the MRR than is customarily released at non-U.S. locations. In addition, the CBI practices at foreign locations are much more protective of process information than what is being proposed in this rulemaking. In almost all cases, government agencies outside the U.S. limit the information requested so they do not implicate trade secret information.
On Tuesday, February 29, 2012, President Obama signed an executive order creating the Interagency Trade Enforcement Center. The White House said the order "will institute a more aggressive `whole-of-government' approach to getting tough on trade enforcement by monitoring and enforcing U.S. rights under international and domestic trade rules and countering unfair subsidies that tilt the global market against U.S. firms." [Footnote: http://www.whitehouse.gov/the-press-office/2012/02/28/executive-order-establishment-interagency-trade-enforcement-center]. As reported by the Associated Press, the office "will expand the administration`s ability to challenge unfair trading practices in China and elsewhere." The Associated Press also noted that the President "has accused China of subsidizing homegrown companies and allowing counterfeiting and intellectual piracy. The president's most recent budget proposal asks Congress for millions of dollars for the new enforcement center and more US inspectors in China."
It is recognized that manufacturers outside the United States would welcome information on manufacturing processes at facilities subject to Subpart L. EPA should not be adopting rules that have the effect of promoting intellectual piracy in China or other countries, especially as the White House simultaneously recognizes the substantial threat that piracy poses and chooses to spend millions of dollars in enforcement money to counter it.
By including process-related emission information for greenhouse gas reporting, EPA`s interpretation of the term "emission data" is over broad. This interpretation also forces public disclosure of sensitive business information that likely includes a company`s trade secret information.
In order to fully grasp the wide breadth of the potential negative consequences this issue poses, it is important to acknowledge it from an intellectual property law and research and development (R&D) perspective. R&D is responsible for the development of trade secret information, sometimes after multiple years and millions of dollars spent in order to develop and improve valuable product and process information.
Sensitive R&D information is reflected in the details of a company`s manufacturing and process information. This information has economic value only as long as the information remains confidential and, therefore, unavailable to competitors. Trade secret information represents a long recognized form of intellectual property in the United States and elsewhere in the world. Companies invest in R&D efforts in reliance on the protection that U.S. Federal and state laws provide for their intellectual property. These laws allow them to protect their trade secrets and confidential information long enough for them to recoup their R&D investment and realize the potentially significant economic rewards that are available in the commercial marketplace. This potential for economic reward provides significant commercial incentive to companies doing business in the United States.
America's intellectual property laws have created a framework in which American companies have been encouraged to invest in research in development, to innovate and develop new technologies. Silicon Valley, Microsoft, Apple, and 3M all represent companies whose notable innovation has been a direct result of the protection of intellectual property. The danger of overseas competitors illegally copying or reverse engineering manufacturing technologies is very real and very damaging. However, due to the U.S.`s framework of intellectual property laws that safeguard R&D and innovation, simple ideas have the opportunity to grow and develop into essential products. Indeed, one of our nation`s strongest credits is the creation of a framework that promotes an accessible marketplace which welcomes new ideas and technology. A critical piece of that framework is the protection of intellectual property and the recognition that trade secrets and competitively sensitive information are important and valuable assets to American companies.
EPA`s proposal, which requires disclosure of process-specific trade secret information, destroys this framework. Through one deliberate action, EPA could unintentionally compromise multi-million dollar investments into R&D by American companies. Companies throughout the world could use this information to copy the technology or processes that American companies have invested in and worked hard to create without having to make that same R&D investment. This creates an unfair competitive advantage for overseas companies that may use this information, while obviously damaging the financial wherewithal and global competitiveness of the American companies that lose their valuable trade secret information.
Instead of fostering innovation, proposals such as this one force disclosure of trade secrets that stifle innovation by discouraging companies from investing in R&D in the U.S. Companies may rather decide to relocate their facilities to other parts of the world in search of adequate protection for their ideas and R&D investments. The determinations in this proposal may well promote intellectual piracy by overseas competitors and damage the global competitiveness of American companies. Rather than adopting regulations that force disclosure of valuable company trade secret information, EPA should adopt regulations that recognize the inherent value of this data and attempt to safeguard it.
______________________________________________________________________________Commenter Name:  Jeffrey C. Muffat, Manager of Environmental Regulatory Affairs
Commenter Affiliation:  3M Company
Document Control Number:  EPA-HQ-OAR-2011-0028-0018
Comment Excerpt Number:  1
Comment: 3M supports EPA's proposed determinations that some of the information requested is confidential business information (CBI), particularly trade secret information related to location and function of certain processes in those facilities.
Comment Excerpt Number:  10
Comment: 3M also supports EPA's determination that under reporting section 98.126(a)(3), the "chemical identities of the contents of the stream(s)" for process and destroyed streams analyzed under the initial scoping speciation of fluorinated GHG at 98.124(a), by process, are CBI. EPA Table A-1: List of Proposed Data Category Assignments and CBI Determinations for Direct Emitter Subparts L, DD, II, RR, SS, and TT, p. 6. As discussed in more detail below, these chemical identities, if identified by process, would give 3M's competitors trade secret information on 3M's specific manufacturing processes, which 3M has invested millions of dollars and many years in developing. It would give competitors information on operational strategies that they would not need to invest their own research and development dollars to develop, all of which would put 3M at a competitive advantage.
Comment Excerpt Number:  19
Comment: §98.126(c)(1)-(3) -- Identity of the process activity used to estimate emissions (tons of product or tons of reactant consumed); mass of each F-GHG emitted for each process vent (metric tons): Whereas information contained in other paragraphs of §98.126 would be sufficient alone to compromise trade secrets, the information contained in these reporting elements is highly confidential because it could be used to determine the quantities and contents of all manufacturing streams. Since §98.126 (a)(3) is simply the product of §§98.126 (c)(1) and (2), reporting any two elements will allow for the third to be calculated. Although EPA has deferred the reporting of §§98.126 (c)(1) and (2) because it considers it "inputs to emission equations,"3M has concerns with the information required in §98.126(a)(3). They are similar to those expressed previously for §98.126(a) with the additional concern that reporting emissions by "process vent" has the potential to provide even more detail than emissions by process. The examples cited previously with respect to the CBI determinations made for 98.126 (a) would also pertain to this paragraph.
Comment Excerpt Number:  20
Comment: §98.126(c)(4) -- Mass of each F-GHG emitted from equipment leaks: EPA has proposed that this is emissions data and not CBI. However, this could result in the disclosure of CBI. Fugitive air emissions may be determined using various methods. Fugitive emissions are very low, with some methods predicting emissions that are less than 0.1% of process emissions. Because this information is being reported by process and because all amounts are reportable, the composition of the product or of an isolated intermediate can be determined from this information. For an operation that involves the handling of the final product, the composition of the fugitive air emission stream could easily be identical to the product content, since fugitive emissions are assumed to be reflective of the process fluid. EPA has considered this type of composition information CBI under Subpart OO and under §98.126(a)(6). Although EPA proposed that equipment leak information is not subject to CBI protection, when this same information is reported pursuant to §98.126(a)(6), "the chemical formula and total mass produced of the fluorinated gas product in metric tons, by chemical and process," EPA determined it is CBI. All of the above information on production outputs and F-GHGs from process vents and processes should be held confidential. Normally reports of process fugitive emissions are aggregated for an entire facility. In addition, this emissions information typically has been reported as part of a chemical group, i.e., VOCs. Reporting this type of information by process in the specificity required under Subpart L has not been required under air rules to date, and would likely result in the disclosure of CBI.
Comment Excerpt Number:  21
Comment: §98.126(b)(7): EPA appropriately recognizes this element as CBI. The mass and chemical formula of each fluorine-containing product produced by the process is confidential information. EPA has recognized this in its determination under §98.126(a)(6) and in Subpart OO where production volume information is being treated universally as CBI.
Comment Excerpt Number:  22
Comment: §98.126(b)(4) and (5)-- Mass and chemical formula of the F-GHG product emitted from the process, mass and chemical formula of the F-GHG by-product emitted from the process: EPA has proposed this is emission data and therefore not CBI; however, it is CBI. The information being reported under these subsections may not have been placed in the public domain. As indicated earlier, emissions are not always associated with the manufacture of a specific product. More importantly, the data elements in conjunction with reactant inputs and other outputs will provide one of the elements that is necessary to determine the process yield. It provides information on manufacturing formulas and process yields that could be used by a competitor to try to duplicate the manufacturing process. The mass and composition of the process inputs and outputs could also be used to determine the presence and elemental composition of proprietary chemicals. It is not public information.
Comment Excerpt Number:  23
Comment: §98.126(b)(3) and (4) -- Mass and chemical formula of each F-GHG reactant emitted from the process: EPA has proposed that this is emission data and not CBI; however, this information is CBI. Because the balanced chemical equation is public information, the mass of each reactant fed into the production process would provide competitors information on specific production quantities and process yields. This information is not in the public domain. The mass and composition of the process inputs and outputs could also be used to determine the presence and elemental composition of proprietary chemicals. It is confidential information alone; in combination with the addition of the mass of product produced (§98.126(b)(7)), the mass of product emitted (§98.126(b)(4), and mass of each byproduct emitted (§98.126(b)(5)), all of this would provide competitors a detailed understanding of the manufacturing process at a particular Subpart L facility. Because some Subpart L facilities have invested substantial R&D in the millions of dollars and over 60 years of experience in developing unique process characteristics, the mass of reactants could be highly confidential information. For some facilities, the basic chemical equations for a process may have been placed in the public sector. However for other facilities, this type of detailed information would provide competitors with information on specific production quantities and process yields, and create substantial harm to the competitive position.
Comment Excerpt Number:  24
Comment: § 98.126(a)(6) -- Total production mass of each fluorinated gas product, by chemical and process (metric tons); chemical formula of each fluorinated gas product, by chemical and process. EPA has proposed that this information is CBI. 3M supports this determination. This is consistent with those determinations made for the same information that is being reported under Subpart OO although this same information, i.e., production volume, would not be considered CBI under Section 98.126(a)(2)(i) as mass of each F-GHG emitted from each process (because the fluorinated gas is, in fact, the "fluorinated gas product"). In addition, EPA's determination that the "chemical formula of each fluorinated gas product" is CBI is inconsistent with EPA's determination (above) that "chemical identities of contents of the emission stream" is not CBI  --  they can amount to the same information when the emission stream is in fact the gas product, especially if this information is being reported by process vent.
Comment Excerpt Number:  25
Comment: Although EPA is proposing that chemical identities of contents of process and destroyed streams, by process, are CBI, EPA is proposing that chemical identities of the contents of emission streams, by process, are not CBI. EPA Table A-1, p. 6, reporting section 98.126(a)(3). EPA is characterizing this information as emission data and therefore not CBI. However, the same analysis that EPA uses above to conclude that "location and function" of the process are CBI, and the chemical identities of contents of process and destroyed streams are CBI, also applies to the chemical identities of the contents of emission streams, for many of the 3M processes at facilities subject to Subpart L. The information on chemical identities, by process, can reveal information on the chemistries that 3M employs at various steps in its manufacturing processes. The chemical identities involve trade secret information. In addition, the information by process could provide insight into the manufacturing process and facility configuration, such as which intermediate process equipment is sending streams to which intermediate or final process equipment. . . .
§ 98.126(a)(3) -- Chemical identities of the contents of the emission stream analyzed under the initial scoping speciation of fluorinated GHG, by process: The confidential nature of this element is discussed above. This request for chemical identities has the potential to provide chemical-specific information, by process, on how the manufacturing process is configured and on chemical formulas in the manufacturing process. EPA has conceded that this type of information is CBI when it involves chemical identities of process streams and destroyed streams under Subpart L -- this is the same type of trade secret information. We would point out that this determination unfairly targets those facilities or processes where a reporter decided to measure vent gas composition for scoping analysis and that EPA's proposed CBI determinations were made after reporters had already made these decisions. This is the information that EPA is requesting by March 31, 2012, and therefore 3M asks for an extension on submission of this until the CBI issue is resolved. Some of this information will also be subject to export control laws. 3M asks that EPA consider this information as a static unit/process operational characteristic as opposed to "emission data," given that it is baseline information that is not provided along with reported emission amounts. EPA has considered similar information for facilities subject to Subpart I as non-emission data, including disclosure of the "recipes" (e.g., specific combination of gases used to fabricate a specific feature on a film or substrate), process sub-type, or type associated with each abatement system for specific process steps, because EPA recognized that it would provide insight into how the reporting facility is configured and achieves its specific manufacturing performance. EPA could use the same type of rationale for this "chemical identity" information.
Comment Excerpt Number:  26
Comment: Sections 98.126(a)(2)(i)-(iv)--Total mass of each F-GHG emitted from each fluorinated gas production process (metric tons), and from all fluorinated gas production processes combined; total mass of F-GHG emitted from certain fluorinated gas transformation processes; mass of F-GHG emitted from venting of residual F-GHGs from containers returned from the field:
EPA has proposed that this information is not CBI, but reportable as emission data. 3M disagrees and contends that this should be held as CBI. Reporting emissions for specific processes would result in the availability of process specific information that has not been placed in the public domain. This is CBI data, and the release of this data has the potential to provide road-maps for the process and how it is configured. This will reveal trade secret information on the number of process steps. Appendix A to these comments includes a diagram showing how emissions from a packaging process can provide competitors information on the amount of product manufactured. Facilities exercise great care protecting all of this technology-sensitive information and production volumes. The emissions information that is reported under §98.126(a)(2)(i), combined with the "mass of each fluorinated GHG emitted from each process vent (metric tons)" being reported under §98.126 (c)(3), will in many cases provide sensitive trade secret information. The chemical composition of the product can be determined from the emissions stream.
Subpart L reporting is unique from other environmental reporting in that the emissions from the process may contain the product or byproducts of a reaction. The emissions are the same as the fluorinated gas product produced by the facility. In other cases, emissions may indicate the presence of unique chemicals. See Appendix B to these comments, which is a non-CBI diagram showing how emissions from a specific process can give insights into trade secret information on chemical inputs and reactants. Although it is a hypothetical example, it illustrates the point that disclosure of emissions by process or operating unit as opposed to disclosure of facility-wide emissions is what allows a competitor to determine the CBI associated with a particular product or intermediate. Accordingly, this type of information requested in this element of Subpart L may be unique and can reveal novel production methods. It is similar to the unique process data reflecting novel production methods that EPA determined was CBI for purposes of Subpart I. It is very different from the emissions information EPA reviewed for purposes of Subpart I and found it was not CBI because it was not unique: all of the facilities there used the same type of process gases typically found in the effluent streams. For purposes of 3M air permit applications or air emission reporting to date, these emission constituents have been reported as Total Organic Carbon or a Volatile Organic Compound, and therefore the specific chemical identities have not been revealed as public information. Many of the Maximum Achievable Control Technologies rules require detailed emissions information in semi-annual reporting, but in almost all cases the emissions are Hazardous Air Pollutant which may be used as a processing aid, e.g. cleaning solvents, but the process emissions are not the product of the process.
Comment Excerpt Number:  29
Comment: Based on EPA's CBI determinations and the methods that are used to determine fluorinated greenhouse gas (F-GHG) emissions, the information being reported in §98.126 would provide detailed information on a fluorinated gas manufacturing facility. Unlike many other source categories where reported emissions will be limited to carbon dioxide alone, Subpart L data will be chemical specific. Subpart L covers "fluorinated gas production," and because EPA is asking for the chemical identities in emissions from each discrete process in a Subpart L facility, rather than from the facility as a whole, EPA in essence is asking for information that will reveal to competitors the trade secret manufacturing process and chemical recipe for how to make the product (the fluorinated gas), process step by process step. This will include data on product chemical compositions (also required under Subpart OO but there treated as CBI). It will reveal to competitors trade secret information on the number of process steps involved in making a fluorinated gas product. In addition, reports on emissions of the fluorinated gas will be the equivalent of trade secret information on the amount of the fluorinated gas product produced, which EPA has determined is CBI under Subpart OO, and the amounts of all isolated intermediates.
Competitors may well be able to use all of this detailed information to determine how the manufacturing facility is configured, and to determine novel manufacturing methods developed by 3M at great expense and over 60 years of research and development experience. It could allow them to reverse engineer products, some of which are currently manufactured by 3M alone. Once they have reverse engineered the products, it would allow them insight into capacity and capacity utilization, which are important to assessing competitive positions and pricing, potentially allowing them to take advantage of this information.
Comment Excerpt Number:  30
Comment: EPA's recent proposed confidentiality determinations for Subpart I of the MRR provide confidentiality justifications that apply to the information EPA is requesting from 3M under Subpart L. See "Mandatory Reporting of Greenhouse Gases Rule: Confidentiality Determinations and Best Available Monitoring Methods Provisions," 77 FR 10434 (Feb. 22, 2012). In that proposed rule, EPA proposed that a description of manufacturing processes used at an electronics manufacturing facility would be CBI, because EPA recognized that facilities might employ an uncommon process, which could cover novel production methods that may have been developed by the reporting facility, generally at great expense and time investment. If competitors gained knowledge of this type of exclusive method, they could undercut the facility's competitive advantage by replicating it at less expense. EPA acknowledged that this "would likely result in substantial competitive harm." 77 FR at 10439. EPA also recognized that the number of abatement systems at an electronics manufacturing facility was CBI because it could provide insight into the number of tools at the facility, which coupled with production capacity could enable competitors to reverse-engineer the facility's approximate manufacturing costs using the competitor's own tool operating costs. Id. at 10440. Similarly, EPA recognized that disclosure of the type or description of manufacturing tools for specific process steps was CBI because it would provide insight into how a Subpart I facility is configured and how it achieves its specific manufacturing performance. Id. at 10441. EPA also proposed that the disclosure of the recipes (e.g., specific combination of gases used to fabricate a specific feature on a film or substrate), process sub-type, or type associated with each abatement system for specific process steps would provide insight into how the reporting facility is configured and achieves its specific manufacturing performance. Competitors could use this to replicate the manufacturing configuration and undercut the reporting facility's competitive advantage. Id. at 10441.
All of the above types of CBI are implicated by EPA's proposed Subpart L disclosure requirements. EPA's requests for information on emissions, which can be the same as the fluorinated gas products (or intermediates leading to the production of these products), by discrete process and for each process within the facility, would reveal trade secret information on 3M's novel production methods, on 3M's unique configurations and the number of processes and process steps used to produce a product, and on the unique intermediate chemistries leading up to production of fluorinated gas products. As EPA recognized for Subpart I facilities, this could give competitors the ability to replicate these processes and manufacturing configurations at significantly less expense, resulting in substantial harm to 3M.
In Subpart I, EPA determined that the "fluorinated GHG and N2O in the effluent stream to the abatement system" was not CBI because "[t]he type of fluorinated gas in the effluent stream would not likely cause substantial competitive harm if released, because all facilities use the same types of process gases that are typically found in effluent streams. The type of gas does not provide any insight into the costs of producing semiconductors at the facility or any novel production methods that may have been developed by the facility to improve manufacturing efficiencies, reduce manufacturing costs, or improve product performance." Id. at 10444. By contrast, however, the type of fluorinated gases in effluent streams subject to Subpart L for some 3M products would in fact reveal novel production methods developed by 3M at great expense and over many years of research and development, to improve manufacturing efficiencies and improve product performance. This information should be held as CBI by EPA because it would cause substantial competitive harm if released.
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Comments on the Inputs to Emission Equations Data Category and the Definition of Emissions Data  -  Subpart L
Commenter Name:  Bredan Mascarenhas, Manager of Regulatory and Technical Affairs
Commenter Affiliation:  American Chemistry Council (ACC)
Document Control Number:  EPA-HQ-OAR-2011-0028-0017
Comment Excerpt Number:  7
Comment: The effectiveness of the Reporting Program could be enhanced with a simple language clarification in the text of the proposal. Specifically, in the Memorandum A matrix, the reporting § 98.126(c)(1) for Subpart L is identified as "the identity of the process activity used to estimate emissions (e.g. tons of product or tons of reactant consumed)." This data is correctly determined to be "emission data" and available to the public in the matrix. However, the corresponding text in the proposal (Section 1, Fluorinated Gas Production), which should merely restate the matrix determinations, lists the data element as "the identity and quantity of the process activity used to estimate emissions...", [Footnote: 77 Fed. Reg. 1442, January 10, 2012] which the rule states is available to the public. While the identity of the process activity is "emissions data", the quantity of the process activity should be treated as CBI. In fact, the Agency's August 2011 Inputs to Emission Equations deferral correctly identifies the quantity portion of this requirement as subject to the reporting deferral of March 2015 [Footnote: 76 Fed. Reg. 53057, August 25, 2011]. In order to avoid any potential confusion, ACC suggests that EPA separate the paragraphs in the text of the rule. For example, the section that announces the determination for emissions data available to the public should list only the identity of the process activity, just as the matrix in Memorandum A does. A separate section could mention that the quantity is subject to EPA's Inputs to Emission Equations deferral deadline of March 31, 2015. This solution presents a relatively simple fix that would significantly reduce confusion about reporting requirements under the proposal. More importantly, it would allow for the full consideration of sensitive data elements that contain CBI.
Comment Excerpt Number:  8
Comment:  The Clean Air Act, EPA's regulations, and the 1991 EPA notice support a narrow interpretation of "emissions data" for purposes of Part 98.
The purpose of Section 114, in pertinent part, is to allow EPA to require a party to provide information to assist the Agency in developing or implementing an implementation plan under Section 110, emission standards under Sections 111 or 112, etc., or to determine if a person is in violation of those standards or implementation plan. It is not the purpose of Section 114 for EPA to require the submittal of voluminous amounts of data, including CBI, so that EPA can release all of that data to the public in a misguided effort to be "transparent".
Section 114(c) of the 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 * * *."
Congress clearly understood and recognized in Section 114(c) the importance of protecting trade secret information, specifically stating that methods and processes can be claimed confidential. EPA has correctly interpreted Section 114(c) of the CAA "to afford confidential treatment to both trade secrets and confidential business information." 75 Fed. Reg. at 39100. Only "emission data" collected by the Agency under Section 114(a) is an exception to the ability to claim information as trade secret.
EPA defines "emission data" at 40 CFR Section 2.301(a)(2)(i) as:
(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).
EPA last clarified the type of information that EPA generally considers being "emission data", and which cannot qualify as confidential under either Section 114(c) or Section 110, in a notice published almost twenty years ago. In a February 21, 1991 Federal Register notice (56 Fed. Reg. 7042), EPA listed the specific data fields that it considered to be emission data. EPA first identified the data fields related to facility identification, which we do not address in these comments. EPA then listed the data fields needed to establish the characteristics of the emissions or "emission parameters":
 Emission type (e.g., nature of emissions such as CO2)
 Emission rate (e.g., amount released to the atmosphere over time)
 Release height
 Description of terrain and surrounding structures
 Stack or vent diameter at point of emissions
 Release velocity
 Release temperature
 Frequency of release
 Duration of release
 Concentration
 Density of the emissions stream or average molecular weight
 Boiler or process design capacity
 Emission estimation method
 Percent space heat
 Hourly maximum design rate
At the end of the Federal Register notice, EPA noted that "after consideration of comments on this policy, a revised policy/determination may be published." We have been unable to locate the comments submitted on this notice (they are not available electronically and could not be located at EPA) to inform ourselves of the issues raised by commenters for EPA's consideration. However, it does not appear any revised policy determination has ever been published.
Contrary to EPA's instincts to expand its interpretation, ACC believes that the language of CAA
Section 114(c), as well as federal case law interpreting that language and the federal regulations, support a more narrow reading of "emission data", especially when applied to the unprecedented and voluminous amounts of information EPA is requiring to be submitted under Part 98.
Moreover, we question the basis for the 1991 Federal Register proposed policy that the "emission rate", "hourly maximum design rate", and "boiler or process design capacity" should be considered "emission data". These pieces of information can be trade secrets, because they can show the amount of production or capacity by a source. Additionally, the submittal of this data is not necessary for a source to comply with Part 98's reporting of GHG emissions, and the information is not necessary to determine actual emissions or facility identity. If EPA determines this data must be submitted pursuant to Part 98, it should be identified as CBI and protected from public disclosure.
B. Case law supports a narrow interpretation of "emission data".
We believe that Section 114(c) and case law reviewing EPA's regulations implementing that section show that Congress tried to strike a balance between the public's right to access records, reports or other information obtained by EPA pursuant to Section 114(a) and a person's right to protect certain records, reports or other information from public disclosure because it is CBI. In
RSR Corp. v. EPA, 588 F. Supp. 1251 (N.D. Tex. 1984) the federal district court took a careful look at CAA Section 114(c) and the definition of "emission data" in 40 CFR Section
2.301(a)(2)(1). The court emphasized the "necessary to determine" portion of Section 2.301(a)(2)(i) in quoting the definition, as follows:
"(A) Information necessary to determine the identity, amount, frequency, concentration or other characteristics . . . of any emission . . .;
(B) Information necessary to determine the identity, amount, frequency, concentration, or other characteristics . . . of the emissions . . .; and
(C) A general description of the location and/or nature of the source to the extent necessary to identify the source and distinguish it from other sources . . . ."
588 F. Supp. 1251, 1255 (emphasis in the original). In RSR Corp., EPA had claimed that certain documents were disclosable "emission data" because they were necessary to determine emissions through a material balance calculation. The court concluded that EPA's decision was arbitrary and capricious (and therefore improper) because EPA did not provide any information that EPA considered alternative methods of identifying or measuring pollutants, "so that the release of information claimed to be proprietary could be avoided unless required by statute." 588 F. Supp. at 1256.
The court emphasized the word "necessary" in 40 CFR Section 2.301(a)(2)(i). According to the court, only if certain information is really "necessary" to determine emissions should it be considered "emission data", and the Agency should consider alternative methods of identifying information to determine emissions, so that confidential information is not compromised. See NRDC v. Leavitt, 2006 WL 667327 (D. D.C. 2006) (citing RSR and adopting a strict interpretation of the "necessary to determine" requirement).
Of the voluminous amounts of information that EPA is requesting in Part 98, very little rises to the level of information "necessary to determine" actual emissions or facility identity. First, unlike the situation with most EPA air emission rules, Part 98 merely requires the reporting of GHG emissions, not compliance with an emission limit or standard. EPA has neither proposed nor established emission limits or standards for GHGs. Accordingly, much of the data that EPA is requiring facilities to submit to the Agency is not "necessary" pursuant to 40 CFR Section 2.301(a)(2)(i)(A) and (C). Nonetheless, EPA is requiring a facility to submit this additional information, rather than allowing the information to remain onsite and subject to request or review by the Agency as needed. Because this information is not "emission data" and is sensitive information related to chemical manufacturing and production, it is entitled to confidential treatment because disclosure is likely to cause substantial harm to the competitive position of the facilities required to report this information.
We agree with EPA's conclusion that because there are no established GHG emission standards or limitations for the facilities subject to Part 98, Section 2.301(a)(2)(i)(B) does not apply. 75 Fed. Reg. at 39100. Similarly, because there are no proposed or existing standards or limitations, we believe that the provisions in Section 2.301(a)(2)(ii) do not apply.
For the purpose of the MRR, Section 114 of the CAA, EPA's regulations and the case law all support a narrow reading of "emission data" that safeguards company trade secret information to the extent possible.
Comment Excerpt Number:  21
Comment: In EPA's previous communications, 3M as a member company of ACC has been led to understand that the purpose of these broad requests for detailed process information were intended to provide the basis for future policy and rule development and not to "verify reported GHG emissions." Much of [the] data being reported by EPA, however, would do little in verifying emission estimates. For example under §98.126(c), the quantity of the activity measurement ((c)(1)) is used to convert the process vent specific emission factor ((c)(2)), into the mass of each fluorinated GHG emitted ((c)(3)). Based on the language in the request for comments, the purpose of reporting both the production quantity and the emission factor is presumed to allow EPA to verify that the mass reported in (c)(3) is correct. This is a simple multiplication and there is little value in reporting this information. It is unlikely that any errors or omissions will occur at this step in the emission calculation process. True "verification" of the emission factor could only occur by an evaluation of the detailed engineering calculations or emission testing results that that [sic] serve as the basis of the emission factor. We would also point out that the production quantity being reported under these sections may be identical to the values being reported under Subpart OO where EPA has provided broad CBI protections.
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Comments on the Notice Development Process  -  Subpart L
Commenter Name:  Jeffrey C. Muffat, Manager of Environmental Regulatory Affairs
Commenter Affiliation:  3M Company
Document Control Number:  EPA-HQ-OAR-2011-0028-0018
Comment Excerpt Number:  2
Comment: Some of the information requested by EPA and covered by EPA's confidentiality determinations under this proposed rule are scoping analyses that would need to be reported by 3M by March 31, 2012. EPA's proposed rule on confidentiality will not be finalized by that date. Much of this requested information would be CBI for 3M, and 3M does not believe its trade secrets would be adequately protected if it submits this information without certainty in the rules on whether EPA will protect it. Moreover, 3M is prohibited from making certain information available under export control laws. Accordingly, 3M asks that EPA grant an extension of the time period for reporting this information until the CBI and export control issues are resolved.
Comment Excerpt Number:  10
Comment: 3M recognizes that EPA was under tight Congressional deadlines to propose and finalize a MRR for GHG emissions. We acknowledge and appreciate all the work that has gone into the MRR-related rulemakings to date. However, we are frustrated with the way EPA chose to sequence its proposal, i.e., EPA issued this CBI proposal after it finalized the main MRR and the Subpart L reporting rule. At the time EPA proposed the MRR requirements, we had no idea how EPA would handle CBI. Nonetheless, comments by ACC on proposed Subpart L in June of 2010 as well as 3M's and ACC's comments in June of 2009 communicated the initial CBI concerns based on the unprecedented and substantial amount of data EPA proposed to be required for submittal to the Agency. Specifically, in 3M's June 2009 comments 3M noted that EPA was asking for reporting of highly confidential information, and asked that EPA provide guidance in the reporting rule as to whether EPA planned to hold this information as CBI. In ACC's comments submitted in June of 2010, ACC noted that it was very concerned about the required submission of CBI and that it jeopardized member companies' international competitiveness, in that it details how ACC member companies manufacture fluorinated GHGs. At the time, ACC urged EPA to release its CBI proposals as soon as possible so that companies could evaluate and gauge the protectiveness of EPA's proposed handling procedures.
Without knowing what the final rule would require or how EPA would protect data and information we believe is CBI, 3M and other companies were unable to consider, let alone propose specific alternatives to the submittal of all of that data and information. For example, in lieu of reporting sensitive data such as process-specific information that could expose trade secrets to the public, we might have found it preferable to agree to third-party audits. But we did not know then what we know now and as such have been disadvantaged by EPA's finalization of the MRR and in specific, Subpart L, before EPA's proposal on CBI.
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Unit-Level Data should be Confidential  -  Subpart L
Commenter Name:  Jeffrey C. Muffat, Manager of Environmental Regulatory Affairs
Commenter Affiliation:  3M Company
Document Control Number:  EPA-HQ-OAR-2011-0028-0018
Comment Excerpt Number:  13
Comment:  EPA's Demands for Process-Specific Emissions Information Goes Beyond its Authorization Under the Law
EPA's mandatory reporting rules were adopted pursuant to H.R. 2764, the Consolidated Appropriations Act of 2008 . . . EPA's authorization in this Act is limited to requiring reporting of greenhouse gas emissions "above appropriate thresholds."
In the mandatory reporting rule that EPA eventually adopted, this threshold was set by facility at a certain number of metric tons of emissions per year. It is implicit in the law and in the rules adopted by EPA that reporting should be at the facility-wide level and for large levels, not at the level of individual processes within the facility. 3M contends that EPA has gone beyond its authorization in the law if it requires reporting of emissions by individual processes within a facility. From the beginning of the rulemaking process, 3M has encouraged EPA to adopt the alternative approach of requiring reporting for the facility as a whole in CO2 equivalents as is done under other reporting rules, including those related to greenhouse gas reporting. Where published GWP data is not available, 3M has estimated these values based on sound science and EPA could use similar approaches especially where these emissions would be very low.


[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Notices]
[Pages 75599-75600]
[FR Doc No: 2011-31002]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2010-0151; Notice 2]

General Motors LLC, Grant of Petition for Decision of
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Notice of petition grant.

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SUMMARY: General Motors LLC (GM),\1\ has determined that approximately
1,113 Model Year (MY) 2011 Buick Regal passenger cars do not fully
comply with paragraph S4.3(d) of 49 CFR 571.110, Federal Motor Vehicle
Safety Standard (FMVSS) No. 110, Tire selection and rims and motor
home/recreation vehicle trailer load carrying capacity information for
motor vehicles

with a GVWR of 4,536 kilograms (10,000 pounds) or less. GM filed an
appropriate report pursuant to 49 CFR part 573, Defect and
Noncompliance Responsibility and Reports dated July 26, 2010.
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    \1\ General Motors LLC (GM) is vehicle manufacturer incorporated
under the laws of the state of Michigan.
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    Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule
implementing those provisions at 49 CFR Part 556, GM has petitioned for
an exemption from the notification and remedy requirements of 49 U.S.C.
chapter 301 on the basis that this noncompliance is inconsequential to
motor vehicle safety. Notice of receipt of the petition was published,
with a 30-day public comment period, on November 19, 2010 in the
Federal Register (75 FR 70963). No comments were received. To view the
petition and all supporting documents log onto the Federal Docket
Management System (FDMS) Web site at: http://www.regulations.gov/. Then
follow the online search instructions to locate docket number ``NHTSA-
2010-0151.''
    For further information on this decision, contact Mr. John
Finneran, Office of Vehicle Safety Compliance, the National Highway
Traffic Safety Administration (NHTSA), telephone<PHONE_NUMBER>,
facsimile (202) 366- 5930.
    GM estimates that approximately 1,113 model year 2011 Buick Regal
passenger cars manufactured between January 20, 2010, and May 18, 2010,
at GM's R[uuml]sselsheim assembly plant are affected.
    GM explains that the noncompliance with FMVSS No. 110 is the
omission of the letter ``T'' in the spare tire size printed on the tire
and loading information labels that it affixed to the vehicles.
Currently the tire size designation shows the spare tire size as ``125/
80R16'' instead of ``T125/80R16.''
    GM additionally stated that it believes that this noncompliance is
inconsequential to motor vehicle safety for the following reasons:
    (1) All information for maintaining and/or replacing the front and
rear tires, as well as the seating capacity and vehicle capacity weight
are correct on tire and loading information labels on the subject
vehicles.
    (2) The vehicles are equipped with spare tires that have the
complete tire size (T125/80R16) molded into their sidewalls.
    (3) When a customer needs to replace the spare tire, he/she will
take the vehicle to a tire store. The tire store will know what compact
spare tire is needed based on the information in their catalog or by
looking at the spare tire provided with the vehicle. If they rely on
spare tire size printed on the tire and loading information label, they
will find the spare tire size ``125/80R16'' without the letter T. This
should not cause confusion or error because the only tire available
with the size designation of ``125/80R16'' is the compact spare tire
``T125/80R16.''
    (4) Risk to the public is negligible because the vehicles are
equipped with the correct spare tire, and the tire and loading
information label does have the correct inflation pressure for the
compact spare tire.
    (5) GM is not aware of any incidents or injuries related to the
subject condition.
    GM has additionally informed NHTSA that it has corrected the
noncompliance so that all future production vehicles will have
compliant labels.
    Supported by the above stated reasons, GM believes that the subject
noncompliance is inconsequential to motor vehicle safety, and that its
petition, to exempt it from providing recall notification of
noncompliance as required by 49 U.S.C. 30118 and remedying the recall
noncompliance as required by 49 U.S.C. 30120, should be granted.
    NHTSA Decision: The intent of FMVSS No. 110 is to ensure that
vehicles are equipped with tires appropriate to handle maximum vehicle
loads and prevent overloading. NHTSA has confirmed that: The installed
and labeled tires, including the spare, when inflated to the labeled
recommended cold inflation pressure are appropriate to handle the
vehicle maximum loads; the tire and loading information labels on
subject vehicles are correct, except for the subject noncompliance; the
vehicles are equipped with spare tires that have the complete tire size
(T125/80R16) molded into their sidewalls; and the only tire available
with the size designation of ``125/80R16'' is the compact spare tire
``T125/80R16''. Consequently, the subject noncompliance should not
cause any unsafe conditions associated with determination of the
correct tire inflation pressures or replacement tire selection for the
subject vehicles.
    Therefore, NHTSA agrees with GM that the omission of the letter
``T'' in the spare tire size printed on the tire and loading
information labels that it affixed to the vehicles does not have any
adverse safety implications.
    NHTSA is also not aware of any customer complaints or field reports
relating to this issue and GM has stated that it has corrected the
problem that caused these errors so that they will not be repeated in
future production.
    The National Highway Traffic Safety Administration (NHTSA) notes
that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that
permit manufacturers to file petitions for a determination of
inconsequentiality allow NHTSA to exempt manufacturers only from the
duties found in sections 30118 and 30120, respectively, to notify
owners, purchasers, and dealers of a defect or noncompliance and to
remedy the defect or noncompliance. Therefore, these provisions only
apply to the 1,113 \2\ vehicles that have already passed from the
manufacturer to an owner, purchaser, or dealer.
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    \2\ GM's petition, which was filed under 49 CFR part 556,
requests an agency decision to exempt GM as a manufacturer from the
notification and recall responsibilities of 49 CFR part 573 for the
affected vehicles. However, a decision on this petition cannot
relieve distributors and dealers of the prohibitions on the sale,
offer for sale, or introduction or delivery for introduction into
interstate commerce of the noncompliant vehicles under their control
after GM notified them that the subject noncompliance existed.
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    In consideration of the foregoing, NHTSA has decided that GM has
met its burden of persuasion that the subject FMVSS No. 110 labeling
noncompliance is inconsequential to motor vehicle safety. Accordingly,
GM's petition is granted and the petitioner is exempted from the
obligation of providing notification of, and a remedy for, the subject
noncompliance under 49 U.S.C. 30118 and 30120.

    Authority: 49 U.S.C. 30118, 30120: delegations of authority at
CFR 1.50 and 501.8.

    Issued on: November 22, 2011.
Claude H. Harris,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2011-31002 Filed 12-1-11; 8:45 am]
BILLING CODE 4910-59-P