[Federal Register Volume 76, Number 102 (Thursday, May 26, 2011)]
[Rules and Regulations]
[Pages 30782-30818]
[FR Doc No: 2011-12930]

Vol. 76

Thursday,

No. 102

May 26, 2011

Part III

Environmental Protection Agency

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40 CFR Part 2

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

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

[EPA-HQ-OAR-2009-0924; FRL-9311-2]
RIN 2060-AQ04

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action finalizes the confidentiality determinations for
certain data elements required to be reported under the Mandatory
Greenhouse Gas Reporting Rule. This action also finalizes amendments to
the special rules governing certain information obtained under the
Clean Air Act, which authorizes EPA to release or withhold as
confidential reported data under the Mandatory Greenhouse Gas Reporting
Rule according to the final determinations for such data without taking
further procedural steps. This action does not include final
confidentiality determinations for data elements that are in the
``Inputs to Emission Equations'' category.

DATES: This action is effective on July 25, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2009-0924. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other materials, such as copyrighted materials, are
not placed on the Internet and are publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Air Docket, EPA/DC, EPA West Building, Room 3334, 1301 Constitution
Avenue, NW., Washington, DC 20004. This Docket Facility is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate Change Division,
Office of Atmospheric Programs (MC-6207J), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>. For technical
information and implementation materials, please go to the Web site
http://www.epa.gov/climatechange/emissions/ghgrulemaking.html. To
submit a question, select Rule Help Center, then select Contact Us.
    Regulated Entities. The confidentiality determinations and
amendment to 40 CFR 2.301 affect entities that must submit annual
greenhouse gas (GHG) reports under 40 CFR part 98. The Administrator
determined that this action is subject to the provisions of Clean Air
Act (CAA) section 307(d). See CAA section 307(d)(1)(v) (the provisions
of CAA section 307(d) apply to ``such other actions as the
Administrator may determine''). Part 98 and this action affects fuel
and chemical suppliers and direct emitters of greenhouse gases.
Affected categories and entities include those listed in Table 1 of
this preamble:

           Table 1. Examples of Affected Entities by Category
------------------------------------------------------------------------
                                                    Examples of affected
           Category                   NAICS              facilities
------------------------------------------------------------------------
General Stationary Fuel        ..................  Facilities operating
 Combustion Sources.                                boilers, process
                                                    heaters,
                                                    incinerators,
                                                    turbines, and
                                                    internal combustion
                                                    engines.
                                              321  Manufacturers of
                                                    lumber and wood
                                                    products.
                                              322  Pulp and paper mills.
                                              325  Chemical
                                                    manufacturers.
                                              324  Petroleum refineries
                                                    and manufacturers of
                                                    coal products.
                                    316, 326, 339  Manufacturers of
                                                    rubber and
                                                    miscellaneous
                                                    plastic products.
                                              331  Steel works and blast
                                                    furnaces.
                                               32  Electroplating,
                                                    plating, polishing,
                                                    anodizing, and
                                                    coloring.
                                              336  Manufacturers of
                                                    motor vehicle parts
                                                    and accessories.
                                              221  Electric, gas, and
                                                    sanitary services.
                                              622  Health services.
                                              611  Educational services.
                                           325193  Ethyl alcohol
                                                    manufacturing
                                                    facilities.
                                           311611  Meat processing
                                                    facilities.
                                           311411  Frozen fruit, juice,
                                                    and vegetable
                                                    manufacturing
                                                    facilities.
                                           311421  Fruit and vegetable
                                                    canning facilities.
Electricity Generation.......              221112  Fossil-fuel fired
                                                    electric generating
                                                    units, including
                                                    units owned by
                                                    Federal and
                                                    municipal
                                                    governments and
                                                    units located in
                                                    Indian Country.
Adipic Acid Production.......              325199  Adipic acid
                                                    manufacturing
                                                    facilities.
Aluminum Production..........              331312  Primary Aluminum
                                                    production
                                                    facilities.
Ammonia Manufacturing........              325311  Anhydrous and aqueous
                                                    ammonia
                                                    manufacturing
                                                    facilities.
Cement Production............              327310  Portland Cement
                                                    manufacturing
                                                    plants.
Ferroalloy Production........              331112  Ferroalloys
                                                    manufacturing
                                                    facilities.
Glass Production.............              327211  Flat glass
                                                    manufacturing
                                                    facilities.
                                           327213  Glass container
                                                    manufacturing
                                                    facilities.
                                           327212  Other pressed and
                                                    blown glass and
                                                    glassware
                                                    manufacturing
                                                    facilities.
HCFC-22 Production and HFC-23              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,
                                                    and dolomitic
                                                    hydrates
                                                    manufacturing
                                                    facilities.
Magnesium Production.........              331419  Primary refiners of
                                                    nonferrous metals by
                                                    electrolytic
                                                    methods.
                                           331492  Secondary magnesium
                                                    processing plants.
Municipal Solid Waste                      562212  Solid waste
 Landfills.                                         landfills.
                                           221320  Sewage treatment
                                                    facilities.
Nitric Acid Production.......              325311  Nitric acid
                                                    manufacturing
                                                    facilities.
Petrochemical Production.....               32511  Ethylene dichloride
                                                    manufacturing
                                                    facilities.
                                           325199  Acrylonitrile,
                                                    ethylene oxide, and
                                                    methanol
                                                    manufacturing
                                                    facilities.
                                           325110  Ethylene
                                                    manufacturing
                                                    facilities.
                                           325182  Carbon black
                                                    manufacturing
                                                    facilities.
Petroleum Refineries.........              324110  Petroleum refineries.
Phosphoric Acid Production...              325312  Phosphoric acid
                                                    manufacturing
                                                    facilities.
Pulp and Paper Manufacturing.              322110  Pulp mills.
                                           322121  Paper mills.
                                           322130  Paperboard mills.
Silicon Carbide Production...              327910  Silicon carbide
                                                    abrasives
                                                    manufacturing
                                                    facilities.
Soda Ash Manufacturing.......              325181  Alkalies and chlorine
                                                    manufacturing
                                                    facilities.
                                           212391  Soda ash, natural,
                                                    mining, and/or
                                                    beneficiation.
Titanium Dioxide Production..              325188  Titanium dioxide
                                                    manufacturing
                                                    facilities.
Underground Coal Mines.......              212113  Underground
                                                    anthracite coal
                                                    mining operations.
                                           212112  Underground
                                                    bituminous coal
                                                    mining operations.
Zinc Production..............              331419  Primary zinc refining
                                                    facilities.
                                           331492  Zinc dust reclaiming
                                                    facilities,
                                                    recovering from
                                                    scrap and/or
                                                    alloying purchased
                                                    metals.
Industrial Waste Landfills...              562212  Solid waste
                                                    landfills.
                                           221320  Sewage treatment
                                                    facilities.
                                           322110  Pulp mills.
                                           322121  Paper mills.
                                           322122  Newsprint mills.
                                           322130  Paperboard mills.
                                           311611  Meat processing
                                                    facilities.
                                           311411  Frozen fruit, juice,
                                                    and vegetable
                                                    manufacturing
                                                    facilities.
                                           311421  Fruit and vegetable
                                                    canning facilities.
Industrial Wastewater                      322110  Pulp mills.
 Treatment.
                                           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                    211111  Coal liquefaction at
 Liquids Fuels.                                     mine sites.
Suppliers of Petroleum                     324110  Petroleum refineries.
 Products.
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.
------------------------------------------------------------------------

    Table 1 of this preamble lists the types of entities that could be
required to report data under Part 98. This list is not intended to be
exhaustive, but rather to provide a guide for readers regarding
facilities and suppliers likely to be affected by this action. Other
types of facilities and suppliers not listed in the table may also be
subject to reporting requirements. Many facilities and suppliers are
subject to the reporting requirements in multiple subparts of Part 98.
To determine whether you are affected by this action, you should
carefully examine the applicability criteria found in 40 CFR part 98,
subpart A. If you have questions regarding the applicability of this
action to a particular facility, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section of this preamble.
    Judicial Review. Under section 307(b)(1) of the CAA, judicial
review of any of the final confidentiality determinations and rule
amendments made in this final rule is available only by filing a
petition for review in the U.S. Court of Appeals for the District of
Columbia Circuit by July 25, 2011. Under CAA section 307(d)(7)(B), only
an objection to this final rule that was raised with reasonable
specificity during the period for public comment can be raised during
judicial review. This section also provides a mechanism for us to
convene a proceeding for reconsideration ``[i]f the person raising an
objection can demonstrate to EPA that it was impracticable to raise
such objection within [the period for public comment] or if the grounds
for such objection arose after the period for public comment (but
within the time specified for judicial review) and if such objection is
of central relevance to the outcome of this rule.'' Any person seeking
to make such a demonstration to us should submit a Petition for
Reconsideration to the Office of the Administrator, Environmental
Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania
Ave., NW., Washington, DC 20004, with a copy to the person listed in
the preceding FOR FURTHER INFORMATION CONTACT section, and a copy to
the

Associate General Counsel for the Air and Radiation Law Office, Office
of General Counsel (Mail Code 2344A), Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20004. Under CAA section
307(b)(2), the confidentiality determinations and rule amendments
established by this action may not be challenged separately in any
civil or criminal proceedings brought by EPA to enforce these
requirements.
    Acronyms and Abbreviations. The following acronyms and
abbreviations are used in this document.

BAMM Best Available Monitoring Methods
CAA Clean Air Act
CBI confidential business information
CBP Customs and Border Protection
CEMS continuous emission monitoring system(s)
CFR Code of Federal Regulations
CH4 methane
CO carbon monoxide
CO2 carbon dioxide
CO2e carbon dioxide-equivalent
EIA Energy Information Administration
EPA U.S. Environmental Protection Agency
FR Federal Register
GHG greenhouse gas
GHGRP Greenhouse Gas Reporting Program
HCFC-22 chlorodifluoromethane
HFC-23 trifluoromethane (or CHF3)
LDC local distribution company
N2O nitrous oxide
NAICS North American Industry Classification System
NEI National Emissions Inventory
NGO non-governmental organization
OMB Office of Management and Budget
PFCs perfluorocarbons
PSD prevention of significant deteriorization
QA/QC quality assurance/quality control
RFA Regulatory Flexibility Act
SF6 sulfur Hexafluoride
SBREFA Small Business Regulatory Enforcement Fairness Act
TRI Toxic Release Inventory
USGS United States Geologic Survey
UMRA Unfunded Mandates Reform Act
U.S. United States

Table of Contents

I. Background
    A. Background on the Final Rule
    B. Approach To Making Confidentiality Determinations
    C. Subparts Covered by This Final Rule
II. Confidentiality Determinations for Data Required by the
Mandatory Greenhouse Gas Reporting Rule, Responses to Public
Comments, and Final Rule Amendment
    A. Final Confidentiality Determinations
    B. Direct Emitters
    C. Suppliers
    D. Amendment to 40 CFR Part 2 Addressing Treatment of Part 98
Data Elements
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 131132: Federalism
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. Background

A. Background on the Final Rule

    On October 30, 2009, EPA published the Mandatory Greenhouse Gas
Reporting Rule for collecting information regarding greenhouse gas
(GHG) emissions from a broad range of industry sectors (74 FR 56260).
Under 40 CFR part 98 of the rule and its subsequent amendments
(hereinafter referred to as Part 98), EPA will collect data from
certain facilities and suppliers above specified thresholds. The data
to be reported includes information on GHG emissions and GHGs supplied,
including information necessary to characterize, quantify, and verify
the GHG emissions and GHGs supplied data. In the preamble to Part 98,
we stated, ``Through a notice and comment process, we will establish
those data elements that are `emissions data' and therefore [under CAA
section 114(c)] will not be afforded the protections of CBI. As part of
that exercise, in response to requests provided in comments, we may
identify classes of information that are not emissions data, and are
CBI'' (74 FR 56287, October 30, 2009).
    On July 7, 2010, EPA proposed confidentiality determinations for
Part 98 data elements and proposed amending EPA's regulation for
handling confidential business information to add specific procedures
for the treatment of Part 98 data (75 FR 39094; hereinafter referred to
as the ``July 7, 2010 CBI proposal''). These proposed amendments to 40
CFR part 2 would allow EPA to release Part 98 data that are determined
to be emission data or non-CBI upon finalizing the confidentiality
status of these data. The amendments also set forth procedures for
treatment of information in Part 98 determined to be CBI. The proposed
procedures are similar to or consistent with the existing 40 CFR part 2
procedures.
    The July 7, 2010 CBI notice proposed confidentiality determinations
for the data elements in the subparts that were included in the 2009
final Part 98 rule (see 74 FR 56260, October 30, 2009), in four
subparts that were finalized in July 2010 (see 75 FR 39736, July 12,
2010), and in seven new subparts that had been proposed but not yet
finalized as of July 7, 2010 (see 75 FR 18576, 75 FR 18608, and 75 FR
18652, April 12, 2010). The July 7, 2010 CBI proposal also covered
proposed changes to the reporting requirements for some of the 2009
final Part 98 subparts. These changes had been proposed in two separate
rulemakings (see 75 FR 18455, April, 12, 2010; and 75 FR 33950, June
15, 2010).
    On July 20, 2010, EPA issued another proposed rulemaking that
changed the description of some reported data elements and required
reporting of some new data elements (75 FR 48744; hereinafter referred
to as the ``July 20, 2010 revisions proposal''). These changes were
subsequently finalized on December 17, 2010 (75 FR 79092). Also on July
20, 2010, EPA issued a supplemental CBI proposal that proposed
confidentiality determinations for the new and revised data elements
that were proposed in the July 20, 2010 revisions notice (75 FR 43889;
hereinafter referred to as the ``July 20, 2010 supplemental CBI
proposal.'')
    In this action, EPA is finalizing confidentiality determinations
for Part 98 data elements with certain exceptions that are discussed in
more detail below. The Part 98 data elements covered by this action are
described in Section I.C of this preamble. EPA is also finalizing the
amendments to EPA's regulation for handling confidential business
information.

B. Approach To Making Confidentiality Determinations

    In the July 7, 2010 CBI proposal, we described the methodology and
rationale used for making confidentiality determinations. This
methodology consisted of a two-step process in which we first grouped
Part 98 data elements into 22 data categories in all (11 direct emitter
data categories and 11 supplier data categories) with each of the 22
data categories containing data elements that are similar in type or
characteristics. EPA then proposed confidentiality status based on (1)
whether the data qualify as emission data as defined in 40 CFR
2.301(a)(2)(i); and (2) for data that do not qualify as emission data,
whether they qualify for confidential treatment under 40 CFR 2.208. In
the July 7, 2010 CBI proposal, EPA proposed that only five of the data
categories meet the definition of emission data (see Table 2 of the

preamble for the July 7, 2010 CBI proposal for the list of the data
categories proposed as emission data).
    We proposed that the remaining six direct emitter data categories
and 11 supplier data categories did not meet the definition of emission
data in 40 CFR 2.301(a)(2)(i). We then evaluated, on a category basis,
whether the data elements in these 17 data categories qualify as trade
secret or confidential business information under CAA section 114(c)
(hereinafter referred to collectively as CBI).\1\ In particular, we
followed EPA's criteria under 40 CFR 2.208(e)(i) to determine whether
data qualifies as CBI, focusing on whether disclosure of the data in
each category would be likely to cause ``substantial harm to the
business's competitive position.'' We evaluated the data elements by
category and proposed confidentiality determinations that applied to
all data elements within each category, except for three supplier data
categories,\2\ where we proposed confidentiality determinations for
individual data elements within the category.
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    \1\ EPA has interpreted CAA section 114(c) to afford
confidential treatment to both trade secrets and confidential
business information. See 40 FR 21987, 21990 (May 20, 1975).
    \2\ GHGs Reported, Production/Throughput Quantities and
Composition, and Unit/Process Operating Characteristics.
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    Lists of the proposed data categories and EPA's proposed
determinations are shown in Table 2 and Table 3 of the preamble to the
July 7, 2010 CBI proposal. Further information on EPA's general
approach and decision process is presented in Section I.C of the
preamble to the July 7, 2010 CBI proposal. Descriptions of the data
categories and detailed rationales for the proposed confidentiality
determinations for each data category are presented in Section II.C
(for direct emitters) and Section II.D (for suppliers) of the preamble
for the July 7, 2010 CBI proposal and Section I.C. of the preamble for
the July 20, 2010 supplemental CBI proposal.

C. Subparts Covered By This Final Rule

    This final rule addresses the confidentiality of data elements
reported under the following subparts of 40 CFR part 98, promulgated on
October 30, 2009 (74 FR 56260) (as amended in 2010), excluding those
data elements in the Inputs to Emission Equation category identified in
the ``Interim Final Regulation Deferring the Reporting of Certain Data
Elements Required Under the Mandatory Reporting of Greenhouse Gases
Rule'' (75 FR 81338, December 27, 2010).
     Subpart A, General Provisions (as amended by 75 FR 39736,
July 12, 2010; 75 FR 66434, October 28, 2010; and 75 FR 79092, December
17, 2010);
     Subpart C, General Stationary Fuel Combustion Sources (as
amended by 75 FR 79092, December 17, 2010);
     Subpart D, Electricity Generation (as amended by 75 FR
79092, December 17, 2010);
     Subpart E, Adipic Acid Production (as amended by 75 FR
66434, October 28, 2010);
     Subpart F, Aluminum Production as amended by 75 FR 79092,
December 17, 2010);
     Subpart G, Ammonia Manufacturing (as amended by 75 FR
79092, December 17, 2010);
     Subpart H, Cement Production (as amended by 75 FR 66434,
October 28, 2010);
     Subpart K, Ferroalloy Production (as amended by 75 FR
66434, October 28, 2010);
     Subpart N, Glass Production (as amended by 75 FR 66434,
October 28, 2010);
     Subpart O, HCFC-22 Production and HFC-23 Destruction (as
amended by 75 FR 66434, October 28, 2010);
     Subpart P, Hydrogen Production (as amended by 75 FR 66434,
October 28, 2010);
     Subpart Q, Iron and Steel Production (as amended by 75 FR
66434, October 28, 2010);
     Subpart R, Lead Production;
     Subpart S, Lime Manufacturing (as amended by 75 FR 66434,
October 28, 2010);
     Subpart U, Miscellaneous Uses of Carbonate;
     Subpart V, Nitric Acid Production (as amended by 75 FR
66434, October 28, 2010 and 75 FR 79092, December 17, 2010);
     Subpart X, Petrochemical Production (as amended by 75 FR
79092, December 17, 2010);
     Subpart Y, Petrochemical Production (as amended by 75 FR
79092, December 17, 2010);
     Subpart Z, Phosphoric Acid Production (as amended by 75 FR
66434, October 28, 2010);
     Subpart AA, Pulp and Paper Manufacturing;
     Subpart BB, Silicon Carbide Production;
     Subpart CC, Soda Ash Manufacturing (as amended by 75 FR
66434, October 28, 2010);
     Subpart EE, Titanium Dioxide Production (as amended by 75
FR 66434, October 28, 2010);
     Subpart GG, Zinc Production (as amended by 75 FR 66434,
October 28, 2010);
     Subpart HH, Municipal Solid Waste Landfills (as amended by
75 FR 66434, October 28, 2010);
     Subpart LL, Suppliers of Coal-based Liquid Fuels (as
amended by 75 FR 79092, December 17, 2010);
     Subpart MM, Suppliers of Petroleum Products (as amended by
75 FR 66434, October 28, 2010);
     Subpart NN, Suppliers of Natural Gas and Natural Gas
Liquids (as amended by 75 FR 66434, October 28, 2010);
     Subpart OO, Suppliers of Industrial Greenhouse Gases (as
amended by 75 FR 79092, December 17, 2010); and
     Subpart PP, Suppliers of Carbon Dioxide (as amended by 75
FR 79092, December 17, 2010).
    In addition, this final rule addresses the confidentiality of data
elements reported under the following subparts promulgated on July 12,
2010 (75 FR 39736, July 12, 2010), excluding those data elements in the
Inputs to Emission Equations category identified in the proposed
``Change to the Reporting Date for Certain Data Elements Required Under
the Mandatory Reporting of Greenhouse Gases Rule'' (75 FR 81350,
December 27, 2010).
     Subpart T, Magnesium Production (75 FR 39736, July 12,
2010);
     Subpart FF, Underground Coal Mines (75 FR 39736, July 12,
2010);
     Subpart II, Wastewater Treatment (75 FR 39736, July 12,
2010); and
     Subpart TT, Industrial Landfills (75 FR 39736, July 12,
2010).

II. Confidentiality Determinations for Data Required by the Mandatory
Greenhouse Gas Reporting Rule, Responses to Public Comments, and Final
Rule Amendment

A. Final Confidentiality Determinations

    In this action, EPA is finalizing the confidentiality
determinations for Part 98 data elements reported under the subparts
specified in Section I.C. of this preamble. Specifically, EPA is
finalizing the category assignments for data elements, the category-
specific confidentiality determinations (which apply to all data
elements assigned to such categories) and, for categories without
category-specific confidentiality determinations, the determinations
for the individual data elements within those data categories. The
final confidentiality determinations for individual data categories are
summarized in Table 2 of this preamble for direct emitters and Table 3
of this preamble for suppliers. As indicated in the tables, EPA made
confidentiality determinations by data category for nine of the direct
emitter data categories and

eight of the supplier data categories. For the remaining two direct
emitter data categories (Unit/Process Static Characteristics that are
Not Inputs to Emission Equations and Unit/Process Operating
Characteristics that are Not Inputs to Emission Equations) and three
supplier data categories (GHGs Reported, Production/Throughput
Quantities and Composition, and Unit/Process Operating
Characteristics), EPA made confidentiality determinations for each
individual data element rather than a single determination for the data
category as a whole. Because the confidentiality determinations were
made for each individual data element, these categories contain both
CBI and non-CBI data elements.
    The data category assignments for the Part 98 data elements
specified in Section I.C of the preamble and their final
confidentiality determinations are provided in the memorandum ``Final
Data Category Assignments and Confidentiality Determinations for Part
98 Reporting Elements'' (see Docket EPA-HQ-OAR-2009-0924 and the Web
site, http://www.epa.gov/climatechange/emissions/ghgrulemaking.html).

           Table 2--Summary of Final Confidentiality Determinations for Direct Emitter Data Categories
----------------------------------------------------------------------------------------------------------------
                                                                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\
----------------------------------------------------------------------------------------------------------------
Facility and Unit Identifier Information.....................               X   ...............  ...............
Emissions....................................................               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 to     ...............            X\c\             X\c\
 Emission Equations..........................................
Unit/Process Operating Characteristics that are Not Inputs to  ...............            X\c\             X\c\
 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 the
  preamble for the July 7, 2010 CBI proposal (75 FR 39094, July 7, 2010) for further discussion of CAA section
  114 requirements. The term emission data is defined at 40 CFR 2.301(a)(2)(i).
\b\ Section 114(c)of the CAA affords confidential treatment to data (except emission data) that are considered
  CBI.
\c\ EPA did not make a category-specific confidentiality determination for this category but instead made
  determination for individual data elements. The data category contains data elements determined to be CBI and
  data elements determined to be non-CBI.

              Table 3--Summary of Final Confidentiality Determinations for Supplier Data Categories
----------------------------------------------------------------------------------------------------------------
                                                                Confidentiality determinations 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\
----------------------------------------------------------------------------------------------------------------
GHGs Reported................................................  ...............            X\c\             X\c\
Production/Throughput Quantities and Composition.............  ...............            X\c\             X\c\
Identification Information...................................  ...............               X   ...............
Unit/Process Operating Characteristics.......................  ...............            X\c\             X\c\
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....................................................
----------------------------------------------------------------------------------------------------------------
\a\ Under CAA section 114, emission data is not entitled to confidential treatment. See Section I.C of the
  preamble for the July 7, 2010 CBI proposal (75 FR 39094, July 7, 2010) for further discussion of CAA section
  114 requirements. The term emission data is defined at 40 CFR 2.301(a)(2)(i).
\b\ Section 114(c) of the CAA affords confidential treatment to data (except emission data) that are considered
  CBI.
\c\ EPA did not make a category-specific confidentiality determination for this category but instead made
  determination for individual data elements. The data category contains data elements determined to be CBI and
  data elements determined to be non-CBI.

1. Major Changes to the Scope and Determinations for Particular Data
Categories
    This section provides a summary of major changes to the scope of
this action as well as changes to the determinations for particular
data categories. For a discussion of changes to the confidentiality
determinations for particular data elements, see Section II.B of this
preamble for direct emitters and Section II.C of this preamble for
suppliers.
     Although we proposed determinations for the data elements
in the following subparts, we have decided not to make final
determinations for the data elements in these subparts in this action
for the reasons specified in Section II.A.3 of this preamble:

-- Subpart I, Electronics Manufacturing;
-- Subpart L, Fluorinated Gas Production;
-- Subpart W, Petroleum and Natural Gas Systems;
-- Subpart DD, Sulfur Hexafluoride (SF6) and
Perfluorocarbons (PFCs) from Electrical Equipment at an Electric Power
System;
-- Subpart QQ, Importers and Exporters of Fluorinated Greenhouse Gases
Contained in Pre-Charged Equipment or Closed-Cell Foams;
-- Subpart RR, Geologic Sequestration of Carbon Dioxide;
-- Subpart SS, Sulfur Hexafluoride and PFCs from Electrical Equipment
Manufacture or Refurbishment; and
-- Subpart UU, Injection of Carbon Dioxide.

     We are finalizing CBI determinations for 24 data elements
that were added to Part 98 in response to comment on the three proposed
revisions notices. The proposed revisions were addressed in the July
2010 CBI proposals. The 24 data elements are the same types of data as
those data elements that were included in the CBI proposals and
therefore are given the same confidentiality determinations in this
final action. For a more detailed explanation, please see Section
II.A.3 of this preamble.
     Although we proposed a determination for the direct
emitter data category Inputs to Emission Equations, we have decided not
to make a final determination for this data category in this action for
the reasons specified in Section II.A.4 of this preamble.

     Although we proposed category-wide determinations for the
following direct emitter data categories, in this action we have made
final determinations for individual data elements in these categories
for the reasons specified in Section II.A.5 of this preamble:

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

    Following is a summary of the major comments and responses
regarding the scope of this action, EPA's approach and rationale for
making confidentiality determinations, and other overarching issues.
Responses to major comments on determinations for the direct emitter
data elements and supplier data elements are included in Sections
II.B.2 through II.B.10 (direct emitter data categories) and II.C.2
through II.C.13 (supplier data categories) of this preamble. Responses
to comments on the proposed amendments to 40 CFR part 2 are included in
Section II.D of this preamble. Other comments and responses thereto can
be found in ``Proposed Confidentiality Determinations and Data Handling
Procedures for Part 98 Data: Responses to Public Comments'' in Docket
EPA-HQ-OAR-2009-0924 and on the Web site, http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.
2. General Approach To Making CBI Determinations
    Comment: Many commenters supported EPA's approach of grouping
together similar data elements and making determinations based on their
similar characteristics. Several commenters stated that the approach is
reasonable and that the proposed data categories are appropriate. Many
commenters agreed with EPA that this approach would speed the
publication of data and reduce both the administrative burden on EPA
and the amount of paperwork for reporters submitting their annual
reports. Some commenters stated that this approach would benefit
reporters of data determined to be CBI, as it would prevent competitors
from forcing them to defend data on a case-by-case basis in Agency CBI
proceedings. Another commenter stated that EPA's approach would provide
certainty to the regulated community regarding which specific data
elements will be afforded protection from disclosure. This commenter
believes that an ad hoc approach could lead to inconsistent CBI
determinations, both for the same data element in a given subpart and
for similar data elements in different subparts. This commenter also
stated that some small businesses may be unfamiliar with the Agency's
case-by-case confidentiality claim provisions and would be placed at a
disadvantage to competitors who were familiar with the case-by-case
process.
    Although many commenters supported EPA's approach, other commenters
argued that EPA should allow reporters to submit case-by-case CBI
claims with their annual reports. Some commenters questioned EPA's
authority to make category-based confidentiality determinations.
Several commenters argued that EPA should evaluate all CBI claims on a
case-by-case basis, while others asserted that EPA should evaluate some
claims this way. Some commenters argued that EPA's approach to making
CBI determinations for Part 98 data was inconsistent with other EPA
programs that evaluate CBI claims on a case-by-case basis. Several
commenters argued that case-by-case determinations provide greater
flexibility to allow the proper consideration of facility-specific
issues in context and that category-wide CBI determinations would not
allow for a thorough evaluation of the potential economic impacts on
individual facilities from the disclosure of sensitive information.
Some commenters stated that case-by-case determinations are essential
because each facility's circumstances are unique. Others argued that
retaining a case-by-case determination option would not preclude EPA
from making the proposed category-based CBI determinations for some of
the data elements.
    Many commenters asserted that they preferred case-by-case
determinations despite the additional work and expense it would
require. These commenters stated that individual reporters should be
allowed to decide whether the cost and effort involved in preparing a
confidentiality claim was worthwhile. Some commenters stated that this
approach would deprive regulated entities of a fair and reasonable
procedure to document CBI claims. Other commenters stated that EPA's
approach infringed upon the rights of regulated entities by imposing
presumptive CBI determinations and not allowing individual entities to
submit their own CBI claims. A few commenters argued that EPA was
effectively preventing reporters from rebutting CBI determinations for
Part 98 data.
    Response: EPA agrees with commenters who stated that category-based
CBI determinations reduce the burden on the regulated community. EPA
also agrees with comments that category-based CBI determinations allow
for timely publication of emission

data and data not otherwise eligible for confidential treatment. If EPA
allowed individual CBI claims, EPA would likely receive a significant
number of claims because of the large number of individual reporters
required to submit annual reports (more than 10,000) and the large
number of different data elements (more than 1,900). Facilities would
likely make multiple CBI claims that would each need to be
substantiated. Given the time and resources required for facilities to
prepare the claims and for EPA to evaluate each individual CBI claim,
timely publication of data would be difficult to achieve.
    We disagree with commenters who stated that EPA does not have the
authority to make category-based CBI determinations. While EPA
generally makes CBI determinations on a case-by-case basis in
accordance with 40 CFR part 2, EPA has authority, as demonstrated by
the analogous provisions of 40 CFR 2.207 (Class Determinations), to
make category-based CBI determinations where it would serve a useful
purpose (40 CFR 2.207(a)(3)) and the data in a category share common
characteristics that result in identical treatment of all data in the
category (40 CFR 207(a)(2)). As discussed above, EPA concluded that the
categorical approach, added to 40 CFR 2.301 through this action, was
warranted as it will result in the timely release of data while also
reducing the burden on reporting entities to substantiate multiple CBI
claims for each annual report. EPA also believes that the categorical
approach is appropriate in this case because there are over 1,900 Part
98 data elements included in this action and many of them share common
characteristics. Consistent with the provisions of 40 CFR 2.207, EPA
issued the July 2010 CBI proposals containing categorical
confidentiality determinations for Part 98 data, and provided the
public an opportunity to comment. EPA specifically sought comment on
whether the data categories were appropriate or if they were too broad
or too narrow. Based on the comments received, of the 22 data
categories proposed, EPA concluded that categorical determinations were
not appropriate for five data categories. For these five data
categories, EPA made confidentiality determinations for individual data
elements.
    EPA also disagrees with the comments that the approach taken in
this final action is inconsistent with the handling of CBI claims under
other EPA programs or that the approach is contrary to regulatory
provisions for CBI. As we explained in the July 7, 2010 CBI proposal,
our CBI determinations were made using the definition of emission data
at 40 CFR 2.301(a)(2)(i). EPA has used this definition of emission data
for over 20 years to make decisions on individual case-by-case CBI
claims. For data that did not meet the definition of emission data, we
used the existing criteria from the CBI regulations at 40 CFR 2.208 to
evaluate and determine the confidentiality of the Part 98 data elements
in this action.
    We further disagree with the comment that facility-specific issues
cannot be addressed through the category-based approach taken in this
final action. In the July 2010 CBI proposals, we expressly sought
comment on facility-specific situations in which CBI protection should
be provided. We have received comments on facility-specific issues and
addressed those comments in the relevant sections of this preamble.
Specifically, for the handful of data elements where commenters were
able to demonstrate that conditions varied significantly among
reporters, EPA decided not to make a final confidentiality
determination for the particular data element in this final action. The
confidentiality status of these data elements will be evaluated on a
case-by-case basis, in accordance with the existing CBI regulations in
40 CFR part 2, subpart B upon receipt of a public request for these
data elements.
    We also disagree with the commenters who claimed that EPA should
provide reporters a case-by-case determination option. As mentioned
above, we have addressed the comments on facility-specific issues in
this final action. We received no specific comment or information
indicating, nor do we have reason to believe, that reporting facilities
would have any new or different information to substantiate their CBI
claims at the time they submit data beyond that information available
to them during the public comment periods on the CBI proposals. We
therefore do not believe that a case-by-case determination at the time
of data submittal would result in a different confidentiality
determination.
    We further disagree with commenters who stated that EPA's approach
imposed presumptive CBI determinations without allowing businesses a
fair and reasonable procedure to document CBI claims. In July 2010, we
proposed CBI determinations for Part 98 data elements and provided
stakeholders as well as the general public an opportunity to comment on
data elements as well as data categories that might qualify for CBI
protection and made it clear that this was the opportunity for
reporters to substantiate their CBI claims. For example, in Section I.E
of the preamble to the July 7, 2010 CBI proposal, we stated that ``this
rulemaking provides the reporting businesses an opportunity to justify
any confidentiality claim they may have for the data they are required
to submit'' and in Section II.B of the July 7, 2010 CBI proposal
preamble we specifically solicited comment on the proposed data
categories, confidentiality determinations, and any ``unique
circumstances * * * that would warrant making subpart-specific
confidentiality determinations.'' Stakeholders were given a 60-day
comment period to review the proposed determinations and prepare
documentation substantiating any CBI claims. We consider the 60-day
comment period to be more than adequate, especially in light of the 15
days businesses have under the existing CBI regulations to respond to
requests for information substantiating a CBI claim (see 40 CFR
2.204(e)). During the comment periods, the reporting facilities were
able to consider the Agency's proposed confidentiality determinations
in preparing their CBI claims and supporting documentation; businesses
do not have such insight into EPA's likely positions when
substantiating CBI claims on a case-by-case basis under the existing
CBI regulations that apply to non-Part 98 data. As shown in this
notice, EPA considered and addressed the comments received in
finalizing the confidentiality determinations in this action.
    Finally, we disagree with commenters who argued that the approach
we selected prevents facilities from rebutting EPA's determinations. By
issuing the CBI proposals for public comment, the Agency already gave
the reporting facilities an opportunity to rebut the Agency's proposed
confidentiality determinations. In contrast, under the existing CBI
regulations that apply to non-Part 98 data, businesses would not know
of EPA's position when substantiating CBI claims and therefore would
not have an opportunity to rebut EPA's position in its substantiation.
Further, as discussed in more detail in the Judicial Review section
above, the confidentiality determinations made in this final action are
subject to judicial review under section 307(b) of the CAA, thereby
offering reporters another opportunity to rebut the Agency's
determination.
3. Scope of the CBI Proposal
    Comment: In the July 7, 2010 CBI proposal, we included data
elements from seven new subparts that had been

proposed but not yet finalized (i.e., subparts I, L, W, DD, SS, RR,\3\
and QQ). These seven subparts were subsequently finalized in three
separate rulemakings (see 75 FR 74458, November 30, 2010; 75 FR 74774,
December 1, 2010; and 75 FR 75060, December 1, 2010). During the
comment period for the CBI proposal, a few commenters recommended that
EPA not finalize confidentiality determinations for data elements from
the seven proposed subparts until after EPA finalized those subparts.
These commenters expressed concern that data elements in the finalized
subparts would differ from those in the proposed subparts. The
commenters therefore suggested that EPA not finalize the CBI
determinations for data elements in these seven subparts without
providing the public with opportunity to comment on the confidentiality
determinations for any new data elements that might be added when these
subparts were finalized.
---------------------------------------------------------------------------

    \3\ The reporting rules for CO2 injection and
sequestration were initially proposed under a single subpart
(subpart RR). However, EPA later decided to separate subpart RR into
two subparts: Geologic Sequestration of Carbon Dioxide (subpart RR)
and Injection of Carbon Dioxide (subpart UU).
---------------------------------------------------------------------------

    The July 2010 CBI proposals also included confidentiality
determinations for new and revised data elements that were proposed in
three Part 98 revision notices (see 75 FR 18455, April, 12, 2010, 75 FR
33950, June 15, 2010 and 75 FR 48744, August 11, 2010). One commenter
suggested that EPA allow stakeholders to submit comments on the CBI
determinations for these data elements after EPA finalized the Part 98
revision notices. The commenter did not identify the specific notice or
proposed data elements that were of concern.
    Response: EPA has decided to undertake a separate action to
determine the confidentiality status for data elements reported under
subparts I, L, W, DD, SS, RR, UU, and QQ. As anticipated by some of the
commenters, we made significant changes (both in number and substance)
to the reporting requirements between proposal and finalization of
these subparts. For instance, we added approximately 300 new data
elements. Further, because EPA made substantive revisions to the
subparts in response to comment (e.g., revisions to the measurement and
calculation methodologies), the revised and added data elements differ
significantly from the data elements that were included in the July CBI
proposal for these subparts. In light of the above, we have decided to
re-propose confidentiality determinations for the data elements in
subparts I, L, W, DD, SS, RR, UU, and QQ. We plan to issue this re-
proposal and finalize the confidentiality determinations for the data
elements before the March 31, 2012 reporting deadline for these
subparts.\4\
---------------------------------------------------------------------------

    \4\ Facilities subject to 40 CFR part 98, subpart RR must submit
requests for exemption as a Research and Development Project or
their proposed Monitoring, Reporting and Verification Plans in 2011.
Since these documents likely will be submitted before the final
confidentiality determinations for subpart RR are made, EPA will
evaluate individual CBI claims regarding these two submittals on a
case-by-case basis, in accordance with the existing CBI regulations
in 40 CFR part 2, subpart B, either upon EPA's receipt of these
documents or upon receipt of a public request for the documents. For
additional information regarding these data elements, see 75 FR
75060, December 1, 2011.
---------------------------------------------------------------------------

    However, EPA disagrees with the commenter who argued that EPA
needed to allow additional time for comments on the July CBI proposals
after finalization of the three proposed revisions to Part 98 covered
by the CBI proposals (i.e., those proposed in 75 FR 18455, April, 12,
2010, 75 FR 33950, June 15, 2010 and 75 FR 48744, August 11, 2010). The
July 2010 CBI proposals included all data elements that were either
revised or added in these proposed amendments. The final amendments
made minor changes to certain proposed data elements, deleted data
elements, and added 24 new data elements. A list of the new data
elements are provided in the memorandum ``Final Data Category
Assignments and Confidentiality Determinations for Part 98 Reporting
Elements'' in Docket EPA-HQ-OAR-2009-0924 and on EPA's Web site, http://www.epa.gov/climatechange/emissions/CBI.html. Most of the changes to
the reported data elements are editorial in nature (e.g.,
clarifications to the existing requirements, changes to the rule
citation, or corrections to cross-references) and, as revised, did not
result in changes to the data category assignment or CBI determination
for these data elements.
    Although the July 2010 CBI proposals did not specifically address
the new data elements that were added when EPA finalized these three
revision notices, the CBI proposals included proposed confidentiality
determinations for data elements that are of the same types as these
new data elements. Having proposed and sought comment on the
confidentiality determinations and supporting rationales for the same
types of data in the CBI proposals, EPA does not believe that
additional time is necessary for comment on these 24 new data elements
for which we are finalizing determinations in this action. Based on the
comments received, we are able to include in this action final
confidentiality determinations for these 24 data elements consistent
with the final determinations for the same types of data elements.
Specifically, for each of the 24 data elements, we have identified the
same type of data elements that were included in the July 2010 CBI
proposals. We have assigned each of the 24 new data elements to the
category with the same type of data elements, and applied the final
confidentiality determinations for the assigned category to the new
data element.
    Where a new data element is the same type as a data element for
which EPA has made an individual confidentiality determination (as
opposed to a categorical determination), EPA has made the same
individual determination for such new data element. The 24 data
elements, their final CBI determinations, and rationales for these
determinations (including examples of the same types of data elements
covered in the July 2010 CBI proposals) are discussed in detail in
Section II.B of this preamble for direct emitter source categories and
Section II.C of this preamble for supplier source categories.
4. Inputs to Emission Equations Data Category
    Comment: EPA received many comments from industry and other
stakeholders regarding our July 7, 2010 CBI proposed determination that
data elements in the Inputs to Emission Equations category are emission
data, as defined in 40 CFR 2.301(a)(2)(i), that are ineligible for
confidential treatment. Many commenters from industry disagreed with
this determination. These commenters were concerned that public
availability of these data elements would harm their competitive
position. Other commenters supported our proposal and stated that
transparency was important for building public confidence in the
accuracy of the reported data and for enabling meaningful public
comment on any future Climate Change policy.
    Response: In the July 2010 CBI proposals, EPA proposed that the
data elements in the Inputs to Emission Equations category are emission
data under 40 CFR 2.301(a)(2)(i). Under the Clean Air Act section
114(c), EPA cannot protect emission data as confidential business
information. EPA received comments raising serious concerns regarding
potential harmful consequences from public availability of these data
elements. EPA concluded that some of these comments warrant more
extensive evaluation. For this reason, EPA decided not to finalize the
confidentiality determination for the

data elements in the direct emitter data category Inputs to Emission
Equations in this action. Instead, we recently published a ``Call for
Information: Information on Inputs to Emission Equations under the
Mandatory Reporting of Greenhouse Gases Rule'' that solicits additional
information to help with the more in-depth evaluation relative to
Inputs to Emission Equations (see 75 FR 81366, December 27, 2010). In
addition, EPA recently published an Interim Final notice to defer
reporting of these data elements on a short-term basis (75 FR 81338,
December 27, 2010) and a proposal to further defer reporting of these
data elements for reporting years 2011, and 2012 until March 31, 2014
(75 FR 81350, December 27, 2010). As explained in these notices, EPA
concluded that it should complete its evaluation of these data elements
and make final confidentiality determinations for the data elements in
this category before collecting such data to avoid possibly causing
unnecessary and unintentional, but irreparable, harm which reporters
allege could occur if Inputs to Emission Equations were made publicly
available.
    In the July 7, 2010 CBI proposal, EPA defined the data elements in
the Inputs to Emission Equations category as data elements that are
``inputs to equations specified in Part 98 for calculating emissions to
be reported by direct emitters * * * and are used by the reporting
direct emitting sources to calculate their annual GHG emission under
Part 98'' (75 FR 39094 July 7, 2010). However, in preparing the interim
final and proposed deferral notices described above, EPA noted that the
July 2010 CBI proposals inadvertently included in the Inputs to
Equations category 69 data elements that are information related to
emissions calculations but are not the actual inputs specified in any
Part 98 emission calculation. For example, a subpart may require that
reporters complete a particular calculation for each unit across a
facility. In this circumstance, a reporter would gather necessary data
and complete the calculation for each unit. Although Part 98 specifies
that reporters must complete the calculation for each unit, the actual
number of units would not be an input to the emission equation based on
our description of the Inputs to Equations category.
    Thirty-seven data elements, listed below, were moved out of the
Inputs to Equations category because after further consideration, we
determined the frequency of measurement that is prescribed in the
``Calculating GHG emissions'' sections differs from that of the data
element that is reported. For example, in Equation Y-1a in
98.253(b)(1)(ii)(a), ``CCp'', the average carbon content of
the flare gas combusted,'' is required to be monitored either daily or
weekly. The daily or weekly carbon content of the flare gas combusted,
however, is not required to be reported. Instead, pursuant to
98.256(e)(6), the ``annual average carbon content of the flare gas'' is
required to be reported. Therefore, the carbon content is required to
be measured and used to calculate emissions at a higher frequency than
that which is required to be reported. As a result, the reporting
element is an average of the actual values that are used to calculate
the emissions, and is not actually used to calculate emissions. In
cases such as these, we have determined that the reporting elements are
not inputs to equations.
     Annual volume of flare gas combusted (reported under 40
CFR 98.256(e)(6)).
     Annual average molecular weight of the flare gas (reported
under 40 CFR 98.256(e)(6)).
     Annual average Carbon content of the flare gas for each
flare (reported under 40 CFR 98.256(e)(6)).
     Annual volume of flare gas combusted for each flare
(reported under 40 CFR 98.256(e)(7)).
     Annual average CO2 concentration for each flare
(reported under 40 CFR 98.256(e)(7)).
     Annual average concentration of carbon containing compound
other than CO2 in the flare gas stream for each flare
(reported under 40 CFR 98.256(e)(7)(i)).
     Annual volume of flare gas combusted (reported under 40
CFR 98.256(e)(8)).
     Annual average higher heating value of the flare gas
(reported under 40 CFR 98.256(e)(8)).
     Annual average value of the exhaust gas flow rate reported
by refineries (reported under 40 CFR 98.256(f)(7)).
     Annual average value of %CO2 reported by
refineries (reported under 40 CFR 98.256(f)(7)).
     Annual average value of %CO reported by refineries
(reported under 40 CFR 98.256(f)(7)).
     Annual average value of the inlet air flow rate reported
by refineries (reported under 40 CFR 98.256(f)(8)).
     Annual average value of oxygen-enriched air flow rate
reported by refineries (reported under 40 CFR 98.256(f)(8)).
     Annual average value of %O2 reported by
refineries (reported under 40 CFR 98.256(f)(8)).
     Annual average value of %Ooxy reported by
refineries (reported under 40 CFR 98.256(f)(8)).
     Annual average value of %CO2 reported by
refineries (reported under 40 CFR 98.256(f)(8)).
     Annual average value of %CO reported by refineries
(reported under 40 CFR 98.256(f)(8)).
     Annual average value of the inlet air flow rate reported
by refineries (reported under 40 CFR 98.256(f)(9)).
     Annual average value of oxygen-enriched air flow rate
reported by refineries (reported under 40 CFR 98.256(f)(9)).
     Annual average value of %N2oxy reported by
refineries (reported under 40 CFR 98.256(f)(9)).
     Annual average value of %N2 exhaust reported by
refineries (reported under 40 CFR 98.256(f)(9)).
     Average coke burn-off quantity per cycle or measurement
period for each catalytic cracking unit, traditional fluid coking unit,
and catalytic reforming unit reported by refineries (reported under 40
CFR 98.256(f)(13)).
     Annual volume of recycled tail gas (if not used to
calculate the recycling correction factor) (reported under 40 CFR
98.256(h)(5)).
     Annual average mole fraction of carbon in the tail gas (if
not used to calculate recycling correction factor) (reported under 40
CFR 98.256(h)(5)).
     Annual volumetric flow discharged to the atmosphere
(reported under 40 CFR 98.256(l)(5)).
     Annual average mole fraction of each GHG above the
concentration threshold or otherwise required to be reported (reported
under 40 CFR 98.256(l)(5)).
     Quarterly CEMS CH4 concentration data used to
calculate CH4 liberated from degasification systems average
from daily data (C) (reported under 40 CFR 98.326(i)).
     Quarterly CH4 concentration data based on
weekly sampling data (C) (reported under 40 CFR 98.326(i)).
     For landfills with gas collection systems, report total
volumetric flow of landfill gas collected for destruction for the
reporting year (reported under 40 CFR 98.346(i)(1)).
     Annual average CH4 concentration of landfill
gas collected for destruction (reported under 40 CFR 98.346(i)(2)).
     Monthly average temperature at which flow is measured for
landfill gas collected for destruction (reported under 40 CFR
98.346(i)(3)).
     Monthly average pressure at which flow is measured for
landfill gas collected for destruction (reported under 40 CFR
98.346(i)(3)).
     Cumulative volumetric biogas flow for each week that
biogas is collected for destruction (if using daily sampling) (reported
under 40 CFR 98.356(d)(2)).

     Weekly average CH4 concentration for each week
that biogas is collected for destruction (if using daily sampling)
(reported under 40 CFR 98.356(d)(3)).
     Weekly average temperature at which flow is measured for
biogas collected for destruction (if using daily sampling) (reported
under 40 CFR 98.356(d)(4)).
     Weekly average moisture content for each week at which
flow is measured for biogas collected for destruction (if using daily
sampling) (reported under 40 CFR 98.356(d)(5)).
     Weekly average pressure for each week at which flow is
measured for biogas collected for destruction (if using daily sampling)
(reported under 40 CFR 98.356(d)(6)).
    Because the 69 data elements are not inputs to emission equations,
we did not include these data elements in the December 27, 2010
deferral actions described above. At that time, we noted that ``The
list of inputs to equations is slightly different than what was
proposed in the July 7, 2010 CBI proposal. Reporting elements included
in this category are values used by reporters to calculate equation
outputs'' (75 FR 81350, December 27, 2010). In this action, we
reassigned each of the 69 data elements that are not the actual inputs
to equations specified in Part 98 to an appropriate direct emitter data
category based on the type and characteristics of each data element. As
a result, these data elements are no longer in the Inputs to Equations
category but are in categories with the same types of data elements.
Because the July 2010 CBI proposals included for comment proposed
determinations and supporting rationales for data elements that are of
the same types as these 69 data elements, we believe that it is
appropriate for us to take final action on the confidentiality
determinations for these reassigned data elements. Specifically, where
we have assigned a data element to a data category with a categorical
determination, we applied the final confidentiality determination for
the assigned category to the new data element. Where a new data element
is assigned to a data category without a categorical confidentiality
determination, we identified the same type of data element(s) in that
category that were covered by the CBI proposals, and we applied the
confidentiality determination for the same type of data elements to the
reassigned data element. For a list of these reassigned data elements,
the category to which they were assigned, and their final
confidentiality status, and examples of the same type of data element
indentified in the particular category, see Table C in the memorandum
``Final Data Category Assignments and Confidentiality Determinations
for Part 98 Reporting Elements'' in Docket EPA-HQ-OAR-2009-0924 and on
EPA's Web site (see http://www.epa.gov/climatechange/emissions/CBI.html).
5. Categorical Determinations for the Direct Emitter Categories Unit/
Process Static Characteristics and Unit/Process Operating
Characteristics That Are Not Inputs to Emission Equations
    Comment: In the July 2010 CBI proposals, we proposed that all the
data elements in the direct emitter categories Unit/Process Static
Characteristics that are Not Inputs to Emission Equations and Unit/
Process Operating Characteristics that are Not Inputs to Emission
Equations would be non-CBI. In these proposals, we stated that the
disclosure of the data elements in these data categories would be
unlikely to cause competitive harm and also noted that some of the data
elements were already available from other public sources. Several
commenters expressed concern that EPA had not fully evaluated the
potential harm of public availability of some of the data elements in
these two categories and recommended that we re-evaluate the
confidentiality determinations for these data elements in these two
data categories. Some commenters disagreed with our conclusion that
much of the data in these categories was already publicly available
through other sources. Some commenters identified specific data
elements and provided supporting rationale explaining why they should
be eligible for confidential treatment. However, most commenters
provided only broad statements that did not identify specific data
elements or provide detailed supporting rationale, but instead
expressed concern that disclosure of data elements in these categories
could cause potential harm to some reporters.
    Response: In evaluating the comments submitted, EPA determined that
the comments raised issues that warranted additional consideration.
Because many of the comments did not specify the data elements that
were of concern, EPA decided to re-evaluate each data element in these
two data categories to ensure that concerns were fully addressed. As a
result of our re-evaluation, EPA decided not to make the proposed
categorical determination that all data elements in these two
categories are non-CBI and has determined that some of the data
elements assigned to these data categories are eligible for
confidential treatment. This decision was based on new information
collected by the Agency and/or provided by commenters. For the summary
of the comments and a detailed discussion of the rationale for final
determinations for the data elements in these categories, see Sections
II.B.6 and II.B.7 of this preamble.
6. Timing of the CBI Proposal
    Comment: Several commenters expressed concern regarding the timing
of the July 7, 2010 CBI proposal. These commenters stated that EPA
should have addressed CBI in the April 10, 2009 proposal for the GHG
Reporting Rule (74 FR 16448). They asserted that EPA's decision not to
address CBI in the original proposal for the GHG Reporting Rule
negatively affected their ability to properly evaluate Part 98 when it
was initially proposed. Some commenters stated that they advocated for
calculation methods that relied on mass balance equations because they
believe that the inputs to those equations would be held confidential.
Some commenters asserted that they would have supported third party
verification had they known that reported data would not be afforded
confidential treatment.
    In certain circumstances, the CAA allows parties to petition EPA to
reconsider aspects of newly enacted regulations implementing the CAA.
Some industries petitioned EPA regarding certain aspects of the Part 98
requirements. Some commenters stated that EPA should have published the
CBI proposal before discussing these petitions with industry and that
EPA's decision not to do so prejudiced the industries that participated
in those discussions.
    Response: We disagree with commenters who stated that they did not
have sufficient notice regarding types of data that would be eligible
for confidential treatment because the CBI issue was not addressed
during the April 10, 2009 proposal for the GHG Reporting Rule. We also
disagree with commenters who suggested the timing of the CBI proposal
prejudiced those reporters who entered into discussions with EPA
regarding petitions for reconsideration of certain Part 98 requirements
prior to the publication of the July 2010 CBI proposals. We stated in
the preamble to the April 10, 2009 proposal that ``emission data
collected under CAA sections 114 and 208 cannot be considered CBI''
(see 74 FR 16463, April 10, 2009). EPA's CBI regulations define
emission data at 40 CFR 2.301; EPA used this definition to determine
which Part 98 data elements are emission data and therefore not
eligible for confidential treatment pursuant to

CAA section 114(c). For data that do not meet the definition of
emission data, EPA considered the confidentiality determination
criteria at 40 CFR 2.208 to make the CBI determinations. Both the
emission data definition at 40 CFR 2.301 and the confidentiality
determination criteria at 40 CFR 2.208 have been part of EPA's CBI
regulations since the regulations were first promulgated in 1976.
Furthermore, the comments on the original Part 98 proposal received in
2009 indicate that the commenters were aware that section 114(c) of the
CAA requires that emission data cannot be protected. As evidenced by
the comments, commenters were aware 15 months before EPA's publication
of the July 7, 2010 CBI proposal that CAA section 114(c) requires
emission data to be made publicly available (See 74 FR 56260 and 56287,
October 30, 2009). Commenters who entered into discussions with EPA
regarding petitions in 2010 would also have been aware of CAA section
114(c) at the time they made these agreements. In light of EPA's long-
standing regulatory provisions, we reject commenters' claim that they
had insufficient notice regarding EPA's approach to confidential
treatment of data or that reporters who entered into settlement
agreements were prejudiced.
    EPA notes that many of the commenters who expressed concern with
the timing of the CBI proposal were primarily concerned with EPA's
proposal that data in the Inputs to Emissions Equations category would
be publicly available. As discussed in more detail above, EPA is not
finalizing in this action the confidentiality status for the data in
the Inputs to Emission Equations category. For additional information
on inputs to equations, please see Section II.A.4 of this preamble.
7. Extent To Which CEMS Can Be Used to Reduce the Number of Data
Elements Disclosed to the Public
    Comment: In the preamble to the July 7, 2010 CBI proposal, we noted
that facilities who choose to use continuous emission monitoring
systems (CEMS) may have fewer CBI concerns. As these facilities use
CEMS to monitor emissions, we observed that certain data elements would
not be used as inputs to emission equations, which we had proposed to
be emission data and therefore subject to disclosure under CAA section
114(c). In addition, facilities using CEMS would report fewer data
elements than those using emission equations (75 FR 39109, July 7,
2010). In that preamble, we requested comment on the extent to which
CEMS could be used to relieve industry concerns regarding public
disclosure of sensitive data. Several commenters agreed that CEMS may
be a viable option for many sources because CEMS for measuring
CO2 emissions are readily available. One commenter
recommended that EPA require CEMS for reporters who want to withhold
sensitive data. However, other commenters stated that using CEMS is
expensive and is not a cost-effective approach for determining GHG
emissions. Some commenters argued that CEMS would be a viable option
only for sources that have few emission points because the costs of
installing and operating CEMS units on a large number of stacks would
be prohibitively expensive. Other commenters argued that Part 98 does
not provide all source categories an option to use CEMS to measure GHG
emissions and that CEMS would not be technically achievable for some
industries. For example, some commenters stated that CEMS would not be
technically feasible for the fluorochemical industry because of
technical difficulties in designing a CEMS for monitoring fluorinated
GHG emissions. These commenters argued that CEMS used in the
fluorochemical industry would have to be able to detect a wide variety
of fluorinated GHGs and would also have to withstand highly corrosive
operating conditions due to the presence of hydrofluoric and
hydrochloric acid in the fluorochemical process vent streams.
    Some commenters noted that CEMS could not be used to alleviate CBI
concerns for the 2010 reporting year unless the sources had already
installed CEMS to measure GHG emissions as of January 1, 2010. One
commenter argued that facilities selected their 2010 monitoring methods
before EPA proposed to make raw material and other throughput
information public. This commenter recommended that EPA delay reporting
for at least one year to allow facilities an opportunity to purchase
and install CEMS before having to report their emissions.
    Response: These comments relate to data elements in the Inputs to
Emission Equations category, as the use of CEMS reduces the number of
data elements necessary to be used as inputs to emission calculations.
Currently, 20 of the 34 Part 98 subparts for direct emitters provide an
option to use CEMS for determining CO2 emissions. In
addition, the Part 98 subparts for adipic acid (subpart E) and nitric
acid (subpart V) allow facilities to petition EPA for approval to use
N2O CEMS. However, a CEMS option for other GHGs, such as
CH4, SF6, and fluorinated GHGs, is not currently
included in Part 98. EPA agrees with commenters that CEMS may not be
practicable feasible at this time for all sources covered by the
reporting rule, and therefore may not be an option in all circumstances
where a reporter is concerned about the public disclosure of data they
consider sensitive. We also recognize that many sources did not elect
to use CEMS during the 2010 reporting period and therefore would not be
able to use CEMS to mitigate their CBI concerns for the 2010 reporting
year. However, as noted in Section II.A.4 of this preamble, EPA is
addressing these concerns through a separate process. EPA has published
an Interim Final Rule that will defer reporting of data elements in the
Inputs to Emission Equation data category for the 2010 annual report
(75 FR 81338, December 27, 2010) and a proposal to defer reporting of
these data elements until 2014 (75 FR 81350, December 27, 2010). EPA
also issued a notice announcing a call for information soliciting
additional information so that EPA can adequately evaluate additional
monitoring and verification approaches that would not use sensitive
data elements as Inputs to Emission Equations (75 FR 81366, December
27, 2010).
8. Duration of Confidentiality Treatment
    Comment: In the July 7, 2010 CBI proposal, EPA requested comment on
whether there should be a time limit on protection of data determined
to be CBI. A few commenters asserted that confidential treatment of CBI
should be limited to a given period of time and stated that EPA should
use its authority under 40 CFR 2.208(a) to disclose data when
disclosure would no longer cause substantial harm to the reporters'
competitive position. These commenters argued that not all of the data
determined to be CBI may warrant permanent treatment as confidential.
Some commenters recommended that EPA develop a process to establish the
duration of the confidential status of each type of information. One
commenter recommended that CBI status automatically lapse after two
years unless a reporter submits a request to extend the duration of CBI
protection and makes a satisfactory showing that disclosure of the data
would cause substantial harm to its competitive position. This
commenter suggested that a two year period was a reasonable time period
because of the rate at which the market changes.
    However, most commenters stated that CBI status should not be time-
limited. Many stated that data designated as CBI remain relevant and

sensitive for many years after the reporting year has passed and that
its disclosure at any time likely would cause competitive harm to the
reporting entity. One commenter stated that industry marketing trends
play out over long time frames and that competitors value market,
process, and production data even after five or 10 years. One commenter
recommended that CBI data remain protected as CBI for the life of the
reporting entity.
    Response: In the July 7, 2010 CBI proposal, we recognized that
market conditions change such that data once considered CBI may become
less sensitive over time. Therefore, we requested comment on whether
there were any particular Part 98 data elements that would become less
sensitive over time, the amount of time after which they would no
longer be sensitive, and the reason for the change in the sensitivity
of the data elements. Although some commenters recommended that
confidentiality determinations should be time limited, the commenters
did not provide information that would provide sufficient basis for EPA
to limit the determinations made in this action for any particular data
elements to a specific period of time. Although a commenter suggested
that the confidential treatment should expire after two years, the
commenter did not provide any specific information on what changes in
market conditions after this two year period would result in data no
longer satisfying the criteria for confidential treatment. We note that
other CBI determinations made by EPA are generally not time-limited.
Furthermore, today's amendment to 40 CFR 2.301 (Special rules governing
certain information obtained under the Clean Air Act) provides
procedures for EPA to modify a prior confidentiality determination (see
40 CFR 2.301(d)(4)) should certain Part 98 data no longer be entitled
to confidential treatment because of changes in the applicable law or
newly discovered or changed facts. This provision reflects the
requirements in CBI regulations at 40 CFR 2.205(h) for modifying prior
determinations for other information. We do not see a need to establish
a process different from that which we had proposed for declassifying
CBI.

B. Direct Emitters

1. Major Changes to Determinations
    We are finalizing our category assignments for data elements in the
direct emitter subparts specified in Section I.C of this preamble for
10 of the 11 direct emitter data categories and our confidentiality
determinations for these 10 direct emitter data categories. As
discussed in Section II.A.4 of this preamble, the confidentiality
determinations for the data elements in the Inputs to Emission
Equations category are not being finalized in this action. Further, as
discussed in Section II.A.5 of this preamble, for the Unit/Process
Static Characteristics that are Not Inputs to Emission Equations and
the Unit/Process Operating Characteristics categories that are Not
Inputs to Emission Equations, EPA is making final confidentiality
determinations for each data element within these categories, rather
than finalizing the category-wide determinations proposed in the CBI
proposals.
    The major changes since our CBI proposals to the 10 direct emitter
data categories and the confidentiality determinations finalized in
this action are summarized below.
     We have assigned certain data elements for reporting
process emissions (i.e., the amount of GHG generated by a production
facility) at 40 CFR 98.76(a) and (b)(1), 40 CFR 98.166(a)(1) and
(b)(1), and 40 CFR 98.196(a) and (b)(1) as follows for the reasons
specified in Section II.B.3 of this preamble:

--For facilities that collect a portion of the CO2 for use
on site or for shipment off site, the data elements for reporting
process emissions are categorized in the Unit/Process Operating
Characteristics that are Not used as Inputs to Emissions Equations data
category.
--For facilities that discharge all process emissions to the
atmosphere, the data elements for reporting process emissions are
categorized in the Emissions data category.

     We have added seven new data elements to the Emissions
category for the reasons specified in Section II.B.3 of this preamble.
The data elements are as follows:

--Annual emissions aggregated for all GHGs from all applicable source
categories, expressed in metric tons of CO2e calculated
using Equation A-1 (reported under 40 CFR 98.3(c)(12)(i)).
--Annual emissions of biogenic CO2, expressed in metric tons
(excluding biogenic CO2 emissions from part 75 units),
aggregated for all applicable source categories (reported under 40 CFR
98.3(c)(12)(ii)).
--Annual emissions from each applicable source category, expressed in
metric tons of biogenic CO2 (excluding biogenic
CO2 emissions from part 75 units (reported under 40 CFR
98.3(c)(12)(iii)(A)).
--Annual emissions from each applicable source category, expressed in
metric tons of CO2 (including biogenic CO2
emissions from 40 CFR part 75 units and excluding biogenic
CO2 emissions from other non-part 75 units and other source
categories) (reported under 40 CFR 98.3(c)(12)(iii)(B)).
--Annual emissions from each applicable source category, expressed in
metric tons of CH4 (reported under 40 CFR
98.3(c)(12)(iii)(C)).
--Annual emissions from each applicable source category, expressed in
metric tons of N2O (reported under 40 CFR
98.3(c)(12)(iii)(D)).
--Annual emissions from each applicable source category, expressed in
metric tons of each fluorinated GHG (including those not listed in
Table A-1 to subpart A) (reported under 40 CFR 98.3(c)(12)(iii)(E)).

     We have moved three data elements from the Inputs to
Emission Equations category to the Emissions category for the reasons
specified in Section II.B.3 of this preamble. The data elements are as
follows:

--Annual CO2 emissions from each wet-process phosphoric acid
process line (reported under 40 CFR 98.266(f)(2)).
--Annual volumetric flow discharged to the atmosphere from each process
vent (reported under 40 CFR 98.256(l)(5)).
--Annual average mole fraction of each GHG above the concentration
threshold or otherwise required to be reported (reported under 40 CFR
98.256(l)(5)).

     We have added one new data element to the Calculation
Methodology and Methodological Tier category for the reasons specified
in Section II.B.4 of this preamble. This data element requires
facilities to indicate whether the annual volume of flare gas combusted
and the annual average higher heating value of the flare gas were
determined using standard conditions of 68 [deg]F and 14.7 psia or 60
[deg]F and 14.7 psia (reported under 40 CFR 98.256(e)(8).
     Although we proposed non-CBI determinations for the Unit/
Process Static Characteristics that are Not Inputs to Emission
Equations data category, we have made individual confidentiality
determinations for data elements in this category in this final action.
     We have decided not to make final confidentiality
determinations for the following 21 elements in the Unit/Process Static
Characteristics that are Not Inputs to Emission Equations for the

reasons described in Sections II.B.6 of this preamble. These data
elements are as follows:

--The annual ferroalloy product production capacity (reported under 40
CFR 98.116(a)).
--The annual lead product production capacity reported by facilities
using CEMS (reported under 40 CFR 98.186(a)(2)).
--The annual lead product production capacity for facilities not using
CEMS (reported under 40 CFR 98.186(b)(3)).
--The annual lead product production capacity for each smelting furnace
reported by facilities not using CEMS (reported under 40 CFR
98.186(b)(3)).
--The annual lime production capacity (reported under 40 CFR
98.196(b)(15)).
--The type of nitric acid process (reported under 40 CFR 98.226(k)).
--The maximum rated throughput capacity of the catalytic cracking unit,
traditional fluid coking, or catalytic reforming unit (reported under
40 CFR 98.256(f)(3)).
--The maximum rated throughput of the sulfur recovery plant (reported
under 40 CFR 98.256(h)(2)).
--The maximum rated throughput of each coke calcining unit (reported
under 40 CFR 98.256(i)(2)).
--The annual phosphoric acid permitted production capacity (reported
under 40 CFR 98.266(b)).
--The annual phosphoric acid production capacity for each wet-process
phosphoric acid process line (reported under 40 CFR 98.266(f)(3)).
--The annual production capacity of silicon carbide reported by
facilities using CEMS (reported under 40 CFR 98.286(a)(3)).
--The annual production capacity of silicon carbide reported by
facilities not using CEMS (reported under 40 CFR 98.286(b)(3)).
--The annual production capacity of soda ash for each manufacturing
line reported by facilities using CEMS (reported under 40 CFR
98.296(a)(3)).
--The annual production capacity of soda ash reported by facilities not
using CEMS (reported under 40 CFR 98.296(b)(4)).
--The annual production capacity of titanium dioxide reported by
facilities using CEMS (reported under 40 CFR 98.316(a)(4)).
--The annual production capacity of titanium dioxide for each
production line reported by facilities not using CEMS (reported under
40 CFR 98.316(b)(5)).
--The description of the gas collection system at an underground coal
mine (reported under 40 CFR 98.326(q)).
--The annual zinc product production capacity reported by facilities
using CEMS (reported under 40 CFR 98.336(a)(1)).
--The annual zinc product production capacity reported by facilities
not using CEMS (reported under 40 CFR 98.336(b)(2)).
--The description and/or diagram of the industrial wastewater treatment
system (reported under 40 CFR 98.356(a)).

     We have added one new data element to the Unit/Process
Static Characteristics Not used as Inputs to Emission Equations
category for the reasons specified in Section II.B.6 of this preamble.
This data element requires municipal landfills to report a description
of the aeration system used at their landfill, including aeration
blower capacity (reported under 40 CFR 98.346(d)(1)) and is determined
to be non-CBI.
     We have moved one data element from the Facility and Unit
Identifier Information category to the Unit/Process Static
Characteristics that are Not Inputs to Emission Equations data category
and have made a determination that this data element is non-CBI for the
reasons specified in Section II.B.6 of this preamble. This data element
requires facilities to report the type of combustion unit (reported
under 40 CFR 98.36(b)(2)).
     We have moved 13 data elements from Inputs to Emission
Equations to the Unit/Process Static Characteristics that are Not
Inputs to Emission Equations category and made the following
determinations for the reasons specified in Section II.B.6. These data
elements and the final determinations are as follows:

--Number of abatement technologies used at adipic acid production
plants (reported under 40 CFR 98.56(e)) is not CBI.
--Number of cement kilns (reported under 40 CFR 98.86(b)(4)) is not
CBI.
--Total number of glass furnaces (reported under 40 CFR 98.146(b)(8))
is not CBI.
--Total number of lead smelting furnaces (reported under 40 CFR
98.186(b)(5)) is not CBI.
--Number of nitric acid trains (reported under 40 CFR 98.226(f)) is not
CBI.
--Number of wet-process phosphoric acid lines (reported under 40 CFR
98.266(f)(7)) is not CBI.
--Number of separate chloride process lines located at titanium dioxide
production facilities (reported under 40 CFR 98.316(b)(14) is not CBI.
--Number of Waelz kilns used for zinc production (reported under 40 CFR
98.336(b)(4)) is not CBI.
--Number of electrothermic furnaces used for zinc production (reported
under 40 CFR 98.336(b)(5)) is not CBI.
--Total number of delayed coking units (reported under 40 CFR
256(k)(3)) is not CBI.
--The typical drum or vessel outage (reported under 40 CFR
98.256(k)(3)) is CBI.
--The number of delayed coking drums or vessels (reported under 40 CFR
98.256(k)(3)) is CBI.
--The number of delayed coking drums in a set (reported under 40 CFR
98.256(k)(4)) is CBI.

     We have double listed five data elements in the Unit/
Process Static Characteristics that are Not Inputs to Emission
Equations category and in the Inputs to Emission Equations category.
For those reporters who do not use the data elements in the specified
equations, the data elements are in the Unit/Process Static
Characteristics that are Not Inputs to Emission Equations. We have made
the following determinations and for the reasons specified in Section
II.B.6:

--Number and type of each source of equipment leaks at petroleum
refineries when reported by facilities not using Equation Y-21 to
calculate emissions (reported under 40 CFR 98.256(n)(3)) is not CBI.
--Year in which a closed municipal landfill last accepted waste and
year an open municipal landfill expects to close, where reported by
landfills that do not use Equation HH-3 (reported under 40 CFR
98.346(a)) is not CBI.
--Capacity of the municipal landfill, where reported by open landfills
and by closed landfills that do not use Equation HH-3 (reported under
40 CFR 98.346(a)) is not CBI.
--Year in which a closed industrial landfill last accepted waste and
year an open industrial landfills expects to close, where reported by
landfills that do not use Equation TT-4 (reported under 40 CFR
98.466(a)(3)) is not CBI.

--Capacity of the industrial landfill, where reported by open landfills
and by closed landfills that do not use Equation TT-4 (reported under
40 CFR 98.466(a)(4)) is not CBI.

     Although we proposed a non-CBI determination for all data
in the Unit/Process Operating characteristics that are not Inputs to
Emission Equations category, we have made individual confidentiality
determinations for the data elements in this category in this final
action. Specifically, we have determined that the following data
elements in this category qualify as CBI as discussed in Section II.B.7
of this preamble:

--The reason for submitting a Best Available Monitoring Methods (BAMM)
extension request (reported under 40 CFR 98.3(d)(2)(ii)(C)).
--The reason why equipment was not or could not be obtained and
installed during a planned shutdown between October 30, 2009 and April
1, 2010 as reported in a BAMM extension request (reported under 40 CFR
98.3(d)(2)(ii)(E)).
--Planned installation date for monitoring equipment as reported in a
BAMM extension request (reported under 40 CFR 98.3(d)(2)(ii)(F)).
--The anticipated date on which a facility applying for a BAMM
extension will begin using the monitoring methods specified in Part 98
(reported under 40 CFR 98.3(d)(2)(ii)(F)).
--The sampling analysis results of carbon content of feedstock as
determined from QA/QC supplier data under 40 CFR 98.74(e) by ammonia
manufacturing facilities (reported under 40 CFR 98.76(b)(6)).
--The mass fraction of each sample analyzed for all tests used to
verify the carbonate-based mineral mass fraction of raw materials
charged to glass manufacturing facilities (reported under 40 CFR
98.146(b)(5)(iii)).
--The explanation of change greater than 30 percent in a magnesium
production facility's cover gas usage rate (reported under 40 CFR
98.206(g)).
--The types of materials loaded that have an equilibrium vapor phase
concentration of CH4 of 0.5 volume per cent or greater
(reported under 40 CFR 98.256(p)(2).
--The sampling analysis results for carbon content of petroleum coke
consumed by a silicon carbide production facility as determined for QA/
QC of data provided by raw material suppliers (reported under 40 CFR
98.286(b)(7)).
--The sampling analysis results of carbon content of petroleum coke
consumed by titanium dioxide production facilities for QA/QC of data
provided by raw material suppliers (reported under 40 CFR
98.316(b)(13)).

     We have added the following four new data elements to the
Unit/Process Operating Characteristics that are Not Inputs to Emission
Equations category and have also determined that these data elements
are not CBI for the reasons specified in Section II.B.7 of this
preamble. The data elements are as follows:

--Indication of whether active aeration of the waste in the landfill
was conducted during the reporting year (reported under 40 CFR
98.346(d)(1)).
--Fraction of the landfill containing waste affected by the aeration
(reported under 40 CFR 98.346(d)(1)).
--Total number of hours during the year the aeration blower was
operated (reported under 40 CFR 98.346(d)(1)).
--Other factors used as a basis for the selected methane correction
factor (MCF) value (reported under 40 CFR 98.346(d)(1)).

     We have moved 37 data elements from the Inputs to Emission
Equations category to the Unit/Process Operating Characteristics that
are Not Inputs to Emission Equations category for the reasons specified
in Section II.B.7 of this preamble. A list of these data elements is
provided in the memorandum ``Final Data Category Assignments and
Confidentiality Determinations for Part 98 Reporting Elements'' (see
Docket EPA-HQ-OAR-2009-0924 and the Web site (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html). We have determined that
the following data elements are CBI:

--Annual average value of the inlet air flow rate reported by
refineries (40 CFR 98.256(f)(8)).
--Annual average value of oxygen-enriched air flow rate reported by
refineries (40 CFR 98.256(f)(8)).
--The average annual value of %Ooxy reported by refineries
(40 CFR 98.256(f)(8)).
--Annual average value of the inlet air flow rate reported by
refineries (reported under 40 CFR 98.256(f)(9)).
--Annual average value of oxygen-enriched air flow rate reported by
refineries (reported under 40 CFR 98.256(f)(9)).
--Annual average value of %N2oxy reported by refineries
(reported under 40 CFR 98.256(f)(9)).
--Number of regeneration cycles or measurement periods during the
reporting year for each catalytic cracking unit, traditional fluid
coking unit, and catalytic reforming unit reported by refineries
(reported under 40 CFR 98.256(f)(13)).
--Average coke burn-off quantity per cycle or measurement period for
each catalytic cracking units, traditional fluid coking units, and
catalytic reforming units reported by refineries (reported under 40 CFR
98.256(f)(13)).

     We have decided not to make final confidentiality
determinations for the following seven data elements in the Unit/
Process Operating Characteristics that are Not Inputs to Emission
Equations for the reasons described in Sections II.B.6 of this
preamble. These data elements are as follows:

--Annual average value of the exhaust gas flow rate reported by
refineries (40 CFR 98.256(f)(7)).
--Annual average value of %CO2 reported by refineries (40
CFR 98.256(f)(7)).
--Annual average value of %CO reported by refineries (40 CFR
98.256(f)(7)).
--Annual average value of %O2 reported by refineries (40 CFR
98.256(f)(8)).
--Annual average value of %CO2 reported by refineries (40
CFR 98.256(f)(8)).
--Annual average value of %CO reported by refineries (40 CFR
98.256(f)(8)).
--Annual average value of %N2 exhaust reported by refineries
(reported under 40 CFR 98.256(f)(9)).

     We have double listed six data elements in the Unit/
Process Operating Characteristics that are Not Inputs to Emission
Equations category and in the Inputs to Emission Equations category.
For those reporters who do not use the data elements in the specified
equations, the data elements are in the Unit/Process Operating
Characteristics that are Not Inputs to Emission Equations and have the
following determinations for the reasons specified in Section II.B.7 of
this preamble:

--Annual volume of recycled tail gas (if not used to calculate the
recycling correction factor (reported under 40 CFR 98.256(h)(5)) is
CBI.
--Annual average mole fraction of carbon in the tail gas (if not used
to calculate recycling correction factor) (reported under 40 CFR
98.256(h)(5)) is CBI.
--Weekly average temperature at which flow is measured for biogas
collected for destruction (if using daily sampling) (reported under 40
CFR 356(d)(4)) is not CBI.
--Weekly average moisture content for each week at which flow is
measured for biogas collected for destruction (if using daily sampling)
(reported under 40 CFR 356(d)(5)) is not CBI.
--Weekly average pressure for each week at which flow is measured for
biogas collected for destruction (if using daily sampling) (reported
under 40 CFR 98.356(d)(6)) is not CBI.
--Surface area at the start of the reporting year for the landfill
sections that contain waste and that are associated with the selected
cover type for facilities that do not use a landfill gas collection
system (reported under 40 CFR 98.466(e)(2)) is not CBI.

     We have moved seven data elements from the Calculation

Methodology and Methodological Tier category to the Test and
Calibration Methods category for the reasons specified in Section
II.B.8 of this preamble:

--The basis for the unit-specific factor (i.e., select from average of
multiple source tests; single source test within last 5 years; single
source test more than 5 years ago; source test of identical unit at
same facility) (40 CFR 98.256(i)(8)).
--The basis for the CO2 emission factor used in Equation Y-
16b (40 CFR 98.256(j)(8)).
--The basis for the carbon emission factor used in Equation Y-16b (40
CFR 98.256(j)(8)).
--Indication of the measurement or estimation method used for measuring
volumetric flow discharge for each process vent (40 CFR 98.256(l)(5)).
--Indication of the measurement or estimation method used for measuring
average mole fraction of each GHG for each process vent (40 CFR
98.256(l)(5)).
--The basis for the CH4 emission factor used (i.e., select
from weekly or more often measurements; Periodic (less frequent than
weekly) measurements; average of multiple source tests; one-time source
test; default factor) for uncontrolled blowdown systems (40 CFR
98.256(m)(3)).
--Basis for the mole fraction of CH4 in the vent gas from
the unstabilized crude oil storage tank (i.e., measurement of methane
composition; engineering estimate of methane composition based on crude
composition; default) for storage tanks that process unstabilized crude
oil (40 CFR 98.256(o)(4)(vi)).

     We have moved two data elements from the Inputs to
Emission Equations category to the Test and Calibration Methods
category for the reasons specified in Section II.B.8 of this preamble:

--Date of measurement of the volumetric flow rate for each ventilation
monitoring point (40 CFR 98.326(f)).
--Date of measurement of methane concentration for each ventilation
monitoring point (40 CFR 98.326(g)).

     We have moved three data elements from the Inputs to
Emission Equations category to the Production/Throughput Data that are
Not Inputs to Emission Equations for the reasons specified in Section
II.B.9 of this preamble:

--Annual quantity of petrochemicals produced (40 CFR 98.246(a)(5)).
--Volume or mass of off-specification product produced (40 CFR
98.246(a)(9)).
--Monthly production of titanium dioxide for each production process
(40 CFR 98.316(b)(8)).

     We have double listed two data elements in the Production/
Throughput Data that are Not Inputs to Emission Equations and in the
Inputs to Emission Equations category. For those reporters who do not
use the data elements in the specified equations, the data elements are
in the Production/Throughput Data that are Not Inputs to Emission
Equations and have the following determinations for the reasons
specified in Section II.B.9 of this preamble:

--Cumulative volumetric biogas flow for each week that biogas is
collected for destruction reported by wastewater treatment facilities
using daily sampling (40 CFR 98.356(d)(2)).
--Weekly average CH4 concentration for each week that biogas
is collected for destruction reported by wastewater treatment
facilities using daily sampling (40 CFR 98.356(d)(3)).

     Although we had proposed that the data element that
requires reporting of the annual quantity of CO2 captured
for use on site (40 CFR 98.196(b)(17)(i)) to be in the Unit/Process
Operating Characteristics that are Not used as Inputs to Emissions
Equations Data category, we have moved this data element to the
Production/Throughput Data that are Not Inputs to Emission Equations
Data category for the reasons specified in Section II.B.9 of this
preamble.
    The rationale for these changes can be found in Sections II.B.2
through II.B.10 of this preamble and in the ``Proposed Confidentiality
Determinations and Data Handling Procedures for Part 98 Data: Responses
to Public Comments'' (available in the Docket EPA-HQ-OAR-2009-0924 and
on the Web site (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html).
    A list of all the direct emitter data elements and their category
assignment under this final action is provided, by subpart and data
category, in a memorandum (see ``Final Data Category Assignments and
Confidentiality Determinations for Part 98 Reporting Elements'' in
Docket EPA-HQ-OAR-2009-0924) and on the Web site (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html).
2. Facility and Unit Identifier Information Category
    Comment: Only a few commenters submitted comments on this data
category. The majority of those providing comments agreed with EPA's
proposed determination that the data elements in this category are not
eligible for confidential treatment because they meet the definition of
emission data in 40 CFR 2.301(a)(2)(i). One commenter agreed with EPA's
determination that the phrase ``identity * * * of any emission'' in 40
CFR 2.301(a)(2)(i)(A) refers not only to the names of the pollutants
being emitted, but also includes other identifying information, such as
plant name, address, city, state, zip code, emission point or device
description, and North American Industry Classification System (NAICS)
code.
    Although most commenters agreed with the proposed determination for
this category, one commenter stated that the customer meter number and
combustion unit identifiers reported in accordance with 40 CFR
98.36(c)(1) and (c)(3) should be held as confidential.
    Response: The few commenters who disagreed with our proposed
determination for this data category did not provide any rationale or
facts explaining why the data in this category do not meet the
definition of emission data at 40 CFR 2.301(a)(2)(i), as we proposed in
the July CBI proposal. Rather, they claimed that the data elements in
this category are sensitive and therefore, qualify as CBI. However, CAA
section 114(c) does not afford confidential treatment to emission data,
even if they were CBI. In any case, except for the comments discussed
below on certain specific data elements, the commenters made general
and conclusory CBI claims; they did not provide facts or rationales
explaining why any of the data elements in this category are CBI. On
the other hand, we note that many of the data elements assigned to the
category are already available to the public through other sources. For
example, the name and location of a facility and descriptions of
emission units are included in construction and operating permits
(e.g., PSD and Title V permits).
    With respect to the specific comment on the customer meter number
and combustion unit identifiers that were required under 40 CFR
98.36(c)(1) and (c)(3) at the time of CBI proposal, these data elements
are no longer required to be reported under 40 CFR part 98, subpart C
(see the amendments to this subpart published in 75 FR 79092, December
17, 2010). Therefore, according to the comment, there is no CBI
concern.
3. Emissions Category
    New Data Elements: In this final action, we have added the
following seven new data elements to this data category:

     Annual emissions aggregated for all GHGs from all
applicable source categories, expressed in metric tons of
CO2e calculated using Equation A-1 (reported under 40 CFR
98.3(c)(12)(i)).
     Annual emissions of biogenic CO2, expressed in
metric tons (excluding biogenic CO2 emissions from part 75
units), aggregated for all applicable source categories (reported under
40 CFR 98.3(c)(12)(ii)).
     Annual emissions from each applicable source category,
expressed in metric tons of biogenic CO2 (excluding biogenic
CO2 emissions from 40 CFR part 75 units (reported under 40
CFR 98.3(c)(12)(iii)(A)).
     Annual emissions from each applicable source category,
expressed in metric tons of CO2 (including biogenic
CO2 emissions from 40 CFR part 75 units and excluding
biogenic CO2 emissions from other non-part 75 units and
other source categories) (reported under 40 CFR 98.3(c)(12)(iii)(B)).
     Annual emissions from each applicable source category,
expressed in metric tons of CH4 (reported under 40 CFR
98.3(c)(12)(iii)(C)).
     Annual emissions from each applicable source category,
expressed in metric tons of N2O (reported under 40 CFR
98.3(c)(12)(iii)(D)).
     Annual emissions from each applicable source category,
expressed in metric tons of each fluorinated GHG (including those not
listed in Table A-1 of subpart A) (reported under 40 CFR
98.3(c)(12)(iii)(E)).
    These new data elements were added to subpart A by the amendments
published on December 17, 2010 (75 FR 79092) and were not included in
the July 2010 CBI proposals. The new data elements require the
reporting of GHG emissions data for combustion units, which are the
same type of data as all the other data elements in the Emissions
category. Because the CBI proposals addressed the same type of data
elements, we do not see a need to propose confidentiality determination
for these new data elements before taking final action. We conclude
that it is appropriate to include these seven data elements in this
data category and finalize their confidentiality determinations as part
of this data category in this action.
    Moved Data Elements: In this final action, we have moved the
following data elements to the Emissions category from the Inputs to
Emission Equations category:
     Annual CO2 emissions from each wet-process
phosphoric acid process line (reported under 40 CFR 98.266(f)(2)).
     Annual volumetric flow discharged to the atmosphere from
each process vent (reported under 40 CFR 98.256(l)(5)).
     Annual average mole fraction of each GHG above the
concentration threshold or otherwise required to be reported (reported
under 40 CFR 98.256(l)(5)).
    These data elements require the reporting of GHG emissions or
information about the rate or concentration of GHG emissions into the
atmosphere from phosphoric acid manufacturing plants and process vents
at petroleum refineries. These data elements were inadvertently placed
in the Inputs to Emission Equations category in the July 7, 2010 CBI
proposal and have been moved to this category because they are the same
type of data (i.e. information regarding the quantity and
characteristics of GHG emissions) as all the other data elements in the
Emissions category. Because these data elements are the same type of
data as the other elements in this category, we have concluded that the
emission data determination applied to this category also applies to
these three data elements and finalize this determination in this
action.
    Comment: In the July 7, 2010 CBI proposal, EPA proposed that the
data elements in this data category would not be eligible for
confidential treatment because they met the definition of emission data
in 40 CFR 2.301(a)(2)(i). Most commenters agreed with this proposed
determination. Some commenters noted that this type of information is
often reported to EPA and State and local agencies by facilities as
part of compliance certification and deviation reports and is made
available to the public in annual emission inventories. Some commenters
noted that information about emissions is not sensitive, and others
argued that disclosure of GHG emissions is critical to furthering
public understanding of the sources of GHG emissions and to enabling
stakeholder participation in the critique and analysis of any future
GHG rulemaking.
    Although many commenters supported the disclosure of GHG emission
data and agreed that these data meet the definition of emission data,
some commenters expressed concern that the disclosure of emissions data
for individual process lines or units would cause competitive harm to
their businesses. These commenters were concerned that emissions
information could be used to calculate other data they consider to be
sensitive and would harm their competitive position. For example, some
commenters recommended that the annual CO2 process emissions
for units should be held as confidential because they claimed that it
may be used to determine sensitive information about manufacturing
capacities and material throughouts.
    A few commenters noted that some data elements included in this
data category do not meet the definition of emission data because some
of the CO2 generated by a process are collected and
therefore, not emitted to the atmosphere. In particular, these
commenters noted that the annual CO2 process emissions
reported by ammonia production plants (see 40 CFR 98.76(b)(1)) may
include CO2 that is not released to the atmosphere because
some ammonia plants collect CO2 for use in other processes
(e.g., production of urea). Some commenters recommended that process
emissions should be held confidential because such data might be used
to determine sensitive information about manufacturing capacities and
material throughput.
    Response: EPA learned from some commenters that in certain
situations some of the CO2 generated by a process are
collected and either used onsite (e.g., urea manufacture) or
transferred off site. In three subparts,\5\ the CO2 that is
collected is reported as ``CO2 process emissions.'' In those
few situations where a reporter collects a portion of the
CO2 generated by a process, EPA agrees that the following
data elements 40 CFR 98.76(a) and(b)(1), 40 CFR 98.166(a) and (b)(1),
and 40 CFR 98.196(a) and (b)(1) do not reflect the emissions ``which
has been emitted by the source'' and therefore do not meet the
definition of emission data in 40 CFR 2.301(a)(2)(i). In these limited
situations, the data element is assigned in this final action to the
data category Unit/Process Operating Characteristics that are Not
Inputs to Emission Equations and is determined to be non-CBI.\6\
However, for those facilities where a reporter does not collect the
CO2 generated by a process such that the CO2 is
emitted into the atmosphere, the data element remains in the Emissions
Data Category.
---------------------------------------------------------------------------

    \5\ 40 CFR part 98, subpart G (Ammonia Manufacturing), subpart P
(Hydrogen Production), and subpart S (Lime Manufacturing).
    \6\ Please see Section II.B.8 for the discussion on the
confidentiality determination for these data elements.
---------------------------------------------------------------------------

    As described above, some commenters expressed concern with our
proposed determination, because they claimed that some of the data
elements in this category are sensitive business information the
disclosure of which could cause competitive business harm.

However, these commenters did not provide any rationale or facts
explaining why the data in this category do not meet the definition of
emission data at 40 CFR 2.301(a)(2)(i), as we proposed in the July CBI
proposal. Rather, they claimed that the data elements in this category
are sensitive and therefore, qualify as CBI. However, CAA section
114(c) does not afford confidential treatment to emission data, even if
they were sensitive. On the other hand, we note that data elements
similar to the data elements included in this category are available to
the public through other sources. For example, unit level emissions of
certain pollutants are available through the National Emissions
Inventory. We therefore conclude that our proposed determination for
this data category is appropriate and finalize that determination in
this action.
4. Calculation Methodology and Methodological Tier Category
    New Data Elements: EPA has added one new data element to this data
category. This new data element requires refineries to indicate whether
the annual volume of flare gas combusted and the annual average higher
heating value of the flare gas were determined using standard
conditions of 68 [deg]F and 14.7 psia or the alternative conditions of
60 [deg]F and 14.7 psia (reported under 40 CFR 98.256(e)(8)). This data
element is used to determine which of the two possible values of the
molar volume conversion factor should be used as an input to the
emission equation and therefore is used to determine the correct
methodology for calculating emissions. Although this new data element
was added to Part 98 after the July 2010 CBI proposals and therefore
not included in the CBI proposals (see 75 FR 79092, December 17, 2010),
it is the same in type and characteristics to other data elements
assigned to this category and for which confidentiality determination
was proposed in the CBI proposals (e.g., temperature at which gaseous
feedstock and volumes were determined (reported under 40 CFR
98.246(a)(4) and type of fuel combusted (reported under 40 CFR
98.36(b)(4)). Because the CBI proposals addressed the same type of data
elements, we do not see a need to propose confidentiality determination
for this new data element before taking final action. We therefore
conclude that it is appropriate to assign this data element to this
data category and finalize its confidentiality determination as part of
this data category in this action.
    Comment: In the July 7, 2010 CBI proposal, EPA proposed that the
data in this category meet the definition of emission data at 40 CFR
2.301(a)(2)(i) and therefore, are not eligible for confidential
treatment. Several commenters agreed that the data elements in this
data category are not entitled to confidential treatment. Some
commenters stated that the information was not sensitive or
proprietary. One commenter noted that this type of information is
provided in compliance certifications under other regulations.
    However, other commenters disagreed with EPA's proposed
determination for this data category. Some commenters stated that the
methodology used by a reporting facility to calculate its GHG emissions
was sensitive and should be considered confidential. Others believed
that the capacity of a combustion unit (reported under 40 CFR part 98,
subpart C and used to determine the appropriate Tier for calculating
CO2, N2O and CH4 emissions from
combustion units) can be used by competitors to assess production
capabilities and derive market strategies that would cause competitive
harm to the reporter if disclosed to the public. Some commenters stated
that the type of fuel used (reported under 40 CFR part 98, subpart C
and used to determine the appropriate Tier for calculating
CO2, N2O and CH4 emissions from
combustion units) is proprietary information that could be used to
determine cost structure. One commenter stated that some facilities use
unconventional fuels in their process and that the use of these fuels
is not known by their competitors. This commenter argued that the use
of these unconventional fuels represents a key competitive advantage