[Federal Register Volume 76, Number 102 (Thursday, May 26, 2011)]
[Rules and Regulations]
[Pages 30781-30818]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12930]



[[Page 30781]]

Vol. 76

Thursday,

No. 102

May 26, 2011

Part III





Environmental Protection Agency





-----------------------------------------------------------------------



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

[[Page 30782]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

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

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

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

FOR FURTHER INFORMATION CONTACT: Carole Cook, Climate Change Division, 
Office of Atmospheric Programs (MC-6207J), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 343-9263; fax number: (202) 343-2342. For technical 
information and implementation materials, please go to the Web site 
http://www.epa.gov/climatechange/emissions/ghgrulemaking.html. To 
submit a question, select Rule Help Center, then select Contact Us.
    Regulated Entities. The confidentiality determinations and 
amendment to 40 CFR 2.301 affect entities that must submit annual 
greenhouse gas (GHG) reports under 40 CFR part 98. The Administrator 
determined that this action is subject to the provisions of Clean Air 
Act (CAA) section 307(d). See CAA section 307(d)(1)(v) (the provisions 
of CAA section 307(d) apply to ``such other actions as the 
Administrator may determine''). Part 98 and this action affects fuel 
and chemical suppliers and direct emitters of greenhouse gases. 
Affected categories and entities include those listed in Table 1 of 
this preamble:

           Table 1. Examples of Affected Entities by Category
------------------------------------------------------------------------
                                                    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.

[[Page 30783]]

 
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

[[Page 30784]]

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

[[Page 30785]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 30786]]

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....................................................
----------------------------------------------------------------------------------------------------------------
\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.


[[Page 30787]]

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

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

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

     Although we proposed 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

[[Page 30788]]

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

[[Page 30789]]

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

[[Page 30790]]

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)).

[[Page 30791]]

     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

[[Page 30792]]

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

[[Page 30793]]

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

[[Page 30794]]

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:


[[Page 30795]]


--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

[[Page 30796]]

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:

[[Page 30797]]

     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.

[[Page 30798]]

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 
for such facilities and should be considered CBI.
    One commenter stated that certain data reported under 40 CFR part 
98, subpart TT (Industrial landfills), including the types of materials 
in each waste stream and the method for estimating historical waste 
disposal quantities would allow a competitor to determine process-
specific information, such as production quantities, that would be 
harmful to the competitive position of reporters.
    Response: As described in Section II.C.5 of the preamble to the 
July 7, 2010 CBI proposal, the data elements in the Calculation 
Methodology and Methodological Tier category consist of the methodology 
and other information, such as unit capacity and fuel type, that are 
necessary to determine that the emissions were calculated using an 
appropriate methodology. EPA therefore proposed to determine that the 
data elements in this category meet the definition of emission data at 
40 CFR 2.301(a)(2)(i). Although some commenters argued that the data 
elements in this category are sensitive, none claimed nor provided 
information that these data elements do not meet the definition of 
emission data in 40 CFR 2.301(a)(2)(i).
    Further, the type of fuel required to be reported is generic 
information that would not reveal specific information about the 
composition of the fuel. For example, a facility that burns waste 
process gases from a manufacturing process is required to report only 
that they combust ``off-gas.'' Similarly, the maximum capacity of a 
combustion unit is already publicly available from other sources (e.g., 
Title V permits). Further, we disagree with the commenter who stated 
that the types of materials in each waste stream and the method for 
estimating historical waste disposal quantities reported under 40 CFR 
part 98, subpart TT (Industrial Landfills) are sensitive or 
proprietary. To estimate the historical amount of waste sent to an 
industrial landfill, facilities select one of the methods specified in 
the rule. The methods include direct measurement of the waste and an 
alternative estimation method for use by reporters who do not have 
measurement records of the waste disposed. The method used by the 
reporter does not disclose any information about the design or 
operating characteristics of production processes, historical 
production volumes, or any other production-related information. For 
the types of materials in each waste stream, facilities select from the 
generic list of waste types specified in the rule under Table TT-1, an 
approach that does not reveal any proprietary or sensitive information 
about a process.
5. Data Elements Reported for Periods of Missing Data That Are Not 
Inputs to Emission Equations Category
    Comment: Many commenters on this data category agreed with EPA's 
proposed determination that the data elements meet the definition of 
emission data in 40 CFR 2.301(a)(2)(i) and therefore do not qualify for 
confidential treatment. One commenter stated that the data elements in 
this category should be public because poor equipment operation, 
failure to collect required data, and other factors undermine the 
availability of accurate and complete emissions data. Other commenters 
agreed that the method used to calculate substitute values should be 
publicly available and noted that protocols for determining substitute

[[Page 30799]]

values are often included in State and local regulations.
    However, other commenters argued that the method used to estimate 
the missing data constitutes sensitive business information, while 
others asserted that the time period over which data is missing is 
sensitive. Another commenter stated that detailed discussions of what 
data were missing, why they were missing, and how a facility generated 
substitute values provide insight into a facility's underlying process 
operations and therefore should be handled as CBI.
    Response: Although some commenters disagreed with EPA's proposed 
determination that the data elements in this data category are emission 
data, none of the commenters provided rationale for how the data in 
this category does not meet the definition of emission data or any 
information to refute or alter EPA's assessment that the data elements 
in this category are needed to determine whether a reasonable 
methodology was used to determine substitute values, and whether the 
annual GHG emissions are correctly calculated, thus qualifying these 
data as emission data under 40 CFR 2.301(a)(2)(i). This data category 
includes data elements that indicate the overall quality and 
reliability of the reported GHG emissions, such as the number of times 
substitute values are used, reasons for using substitute values, and 
the method used to determine a substitute value. For reasons described 
above and in Section II.C.6 of the proposal preamble (75 FR 39094, July 
7, 2010), EPA has determined in this final action, that the data 
elements in this data category are necessary to determine the amount of 
reported emissions and therefore qualify as emission data under 40 CFR 
2.301(a)(2)(i).
6. Unit/Process Static Characteristics That Are Not Inputs to Emissions 
Equations Category
    New Data Elements: EPA has added one new data element to this data 
category. This data element requires municipal landfills to report a 
description of the aeration systems used at their landfills, including 
the aeration blower capacity (reported under 40 CFR 98.346(d)(1)). This 
new data element was added to subpart HH by the amendments published on 
October 28, 2010 (75 FR 66434) and was not included in the July 2010 
CBI proposals. This data element is the same type of data as other data 
elements included in this category in the CBI proposals (e.g., 
description of the landfill gas collection system (reported under 40 
CFR 98.346(i)(7)). For the same reasons set forth below and in Section 
II.C.7 of the July 7, 2010 CBI proposal (see 75 FR 39111) for the same 
types of data in this category, we have determined that this data 
element is not CBI. Specifically, this data element would provide only 
general, non-sensitive, information (e.g., such as the blower capacity 
for aeration system); such general information would not reveal the 
mechanics or any innovative aspects of the system's design and 
operation that might be considered as trade secret or CBI.
    Moved and Double-Listed Data Elements: EPA reassigned one data 
element from the Facility and Unit Identifier Information category and 
13 data elements from the Inputs to Emission Equations category to this 
data category. EPA has also double-listed \7\ five data elements in 
both the Inputs to Emission Equations category and this category. These 
data elements are listed in Section II.B.1 of this preamble and share 
the same characteristics as those data elements previously assigned to 
the Unit/Process Static Characteristics that are not Inputs to Emission 
Equations category in the July 2010 CBI proposals. Specifically, they 
consist of operating characteristics that do not change over time that 
are not used as inputs to emission equations. As with other data 
elements in this category, none of the 19 data elements added to this 
data category meet the definition of emission data at 40 CFR 
2.301(a)(2)(i)(A) because they are not ``* * * information necessary to 
determine the identity, amount, frequency, concentration, or other 
characteristics (to the extent related to air quality) of any emission 
which has been emitted by the source * * *'' As explained in more 
detail below, in response to comments, EPA re-evaluated the data 
elements in this data category and concluded that the proposed 
categorical determination of non-CBI may not be appropriate for all the 
data elements in this category. Based on the comments and EPA's re-
evaluation, EPA concluded that three of the 19 data elements moved to 
this data category are entitled to confidential treatment. The three 
data elements determined to be CBI in this action are:
---------------------------------------------------------------------------

    \7\ For those reporters who do not use the data elements in the 
equations specified in Section II.B.1 of this preamble, the data 
elements are in the Unit/Process Static Characteristics that are Not 
Inputs to Emission Equations.
---------------------------------------------------------------------------

     The typical drum or vessel outage (40 CFR 98.256(k)(3));
     The total number of delayed coking drums or vessels (40 
CFR 98.256(k)(3)); and
     The number of delayed coking drums in the set (40 CFR 
98.256(k)(4)).
    These data elements can be used by competitors to determine the 
actual raw material input to a delayed coking unit and would provide 
insight into innovative operating practices that are considered 
sensitive by the reporter because they provide the reporter with a 
competitive advantage over other refineries. For example, changes in 
operating practices can produce increases in production capacity 
without adding new drums/vessels. Further, comments from refineries 
indicate that they consider these data elements to be sensitive and 
take precautions to ensure this information is not made public. We are 
also not aware of any public sources for these data elements. For the 
reasons described above, we conclude that these three data elements are 
CBI.
    With respect to the remaining 16 data elements that are reassigned 
to this data category, most include the number of emission units, 
production lines, or abatement devices (e.g., number of cement kilns 
reported by facilities not using CEMS, number of nitric acid trains) or 
descriptions of the units (see Section II.B.1 of this preamble for the 
list of reassigned data elements). They also include the year in which 
a landfill closed (reported under 40 CFR 98.346(a) by closed municipal 
landfills that do not use Equation HH-3 to calculate emissions and 40 
CFR 98.466(a)(3) by closed industrial landfills not using Equation TT-
4), an estimate of the year in which an open landfill expects to close 
(reported under 40 CFR 98.346(a) by open municipal landfills and 40 CFR 
98.466(a)(3) by open industrial landfills), capacity of municipal and 
industrial landfills (reported under 40 CFR 98.346(a) by closed 
municipal landfills not using Equation HH-3 and by all open municipal 
landfills; and 40 CFR 98.466(a)(4) by closed industrial landfills not 
using Equation TT-4 to calculate emissions and by all open industrial 
landfills). These data elements have been moved to this category 
because they are the same type of data as many other data elements 
already assigned to this data category (e.g., number of cement kilns 
reported by facilities using CEMS, reported under 40 CFR 98.86(a)(3)). 
For the reasons discussed in more detail in Section II.C.7 of the July 
7, 2010 CBI proposal (see 75 FR 39111), EPA has concluded the 
disclosure of these data elements is unlikely to cause competitive 
harm. These data elements do not provide insight into current 
production rates, raw material consumption, or other information that 
competitors could use to discern market share and other

[[Page 30800]]

sensitive information. The number of production units and control 
devices, general information regarding the type of combustion unit 
(e.g., whether the unit is a boiler, flare, internal combustion engine, 
process heater, etc.), the design capacity of a landfill, and dates of 
closure or expected closure constitute general information that is 
already available to the public through other sources (e.g., Title V 
operating permits). Although only general information regarding the 
type of combustion unit is available in permits, detailed information 
on the type of combustion devices is available from other public 
sources, (e.g., National Emissions Inventory).
    Comment: This data category primarily includes information about 
the number and capacity of process lines and production units, though 
it also includes a few unique data elements that require reporting of 
the specific type of unit or descriptions of processes. Some commenters 
agreed with EPA's determination that the data in this category is not 
CBI because it is either already available to the public through other 
sources (e.g., Title V permits, NEI) or is not likely to cause 
competitive harm if made available. However, several commenters 
expressed concern that competitors could use some data elements in this 
category (e.g., number and capacity of production units/process lines), 
in combination with other data to infer information about individual 
facilities, potentially causing reporters competitive harm. In 
particular, some commenters were concerned that capacity information, 
such as the annual capacity of process line or production unit, could 
be used to determine whether a competitor has available capacity to 
expand production to meet increased market demand. These commenters 
argued that a competitor could use this information, in combination 
with actual production data, to develop market strategies that would be 
harmful to a reporter. Some commenters recommended that EPA allow 
reporters to make individual case-by-case CBI claims for data elements 
in this data category.
    Response: The commenters raised a concern that the proposed non-CBI 
determination may not be appropriate for certain data elements in this 
category. Note that EPA did not receive comments specific to the data 
elements in this category objecting to our proposed determination that 
the data elements in this category do not meet the definition of 
emission data because none of the data elements are inputs to 
equations/calculation methods or information otherwise needed to 
calculate or determine emissions. We therefore conclude that the 
proposed determination was appropriate in this regard and finalize in 
this action our determination that the data elements in this category 
are not emission data under 40 CFR 2.301(a)(2)(i).
    In response to the comments that a non-CBI determination for this 
category was not appropriate, EPA decided to re-evaluate each data 
element assigned to this data category to determine if the proposed 
determination applies. As part of this process, EPA reviewed public 
comments regarding specific data elements, conducted additional reviews 
of alternative public sources (e.g., Title V permits, NEI databases) 
and re-evaluated whether public availability of each data element would 
be likely to cause harm to the competitive position of the reporter. 
Through this process, we have determined that only three of the data 
elements assigned to the Unit/Process Static Characteristics category 
are eligible for confidential treatment.
     The typical drum or vessel outage (40 CFR 98.256(k)(3));
     The total number of delayed coking drums or vessels (40 
CFR 98.256(k)(3)); and
     The number of delayed coking drums in the set (40 CFR 
98.256(k)(4)).
    These three data elements were added to this category in this final 
action. For the explanation of why these data elements are determined 
to be CBI, please see the discussion of moved and double-listed data 
elements listed above for Section II.B.6.
    Based on our review, EPA has decided not to make a final 
determination for the following 21 data elements in this data category:
     The annual ferroalloy product production capacity 
(reported under 40 CFR 98.116(a)).
     The annual lead product production capacity reported by 
facilities using CEMS (reported under 40 CFR 98.186(a)(2)).
     The annual lead product production capacity for facilities 
not using CEMS (reported under 40 CFR 98.186(b)(3)).
     The annual lead product production capacity for each 
smelting furnace reported by facilities not using CEMS (reported under 
40 CFR 98.186(b)(3)).
     The annual lime production capacity (reported under 40 CFR 
98.196(b)(15)).
     The type of nitric acid process (reported under 40 CFR 
98.226(k)).
     The maximum rated throughput capacity of the catalytic 
cracking unit, traditional fluid coking, or catalytic reforming unit 
(reported under 40 CFR 98.256(f)(3)).
     The maximum rated throughput of the sulfur recovery plant 
(reported under 40 CFR 98.256(h)(2)).
     The maximum rated throughput of each coke calcining unit 
(reported under 40 CFR 98.256(i)(2)).
     The annual phosphoric acid permitted production capacity 
(reported under 40 CFR 98.266(b)).
     The annual phosphoric acid production capacity for each 
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)).
     Description or diagram of the reporter's industrial 
wastewater treatment system reported by facilities subject to subpart 
II (reported under 40 CFR 98.356(a)).
    For the reasons explained below, we have decided not to make a CBI 
determination for these data elements. Many of these data elements 
require facilities to report the maximum production capacity of the 
facility or process line. In the July 2010 CBI proposals, we proposed 
that capacity data would be not entitled to CBI protection because we 
believed capacity data to be readily available from other public 
sources (e.g., permits, trade and

[[Page 30801]]

government publications). We received a number of comments that 
capacity data may not be readily available for all sources and claims 
that capacity information is competitively sensitive. EPA reviewed the 
available capacity information and determined that the situation may 
vary for individual facilities. While the capacity data elements listed 
above are generally publicly available, there may be facilities where 
this data is not public. Further, the information publicly available 
for facilities may not necessarily be the same as the data elements 
required under Part 98. We therefore decided not to make a 
confidentiality determination for the data elements on capacity listed 
above at this time.
    Similarly, we decided not to make determinations for the type of 
nitric acid production process (reported under 40 CFR 98.226(k), 
description of the gas collection system at an underground coal mine 
(reported under 40 CFR 98.326(q)), and description of the wastewater 
treatment system (reported under 40 CFR 98.356(a)). We consider it 
unlikely that most reporters would consider the type of nitric acid 
production process, description of wastewater treatment facility or the 
gas collection system at an underground coal mine to be sensitive. 
However, we can envision reporters submitting more detailed information 
than anticipated that would provide specific details on the operation 
of their facility that would be considered sensitive. For example, 40 
CFR 98.326(q) requires reporters to submit a description of the gas 
collection system at an underground coal mine. If reporters submitted 
detailed diagrams of their facilities these diagrams may contain 
information that is proprietary or sensitive or may provide insight 
into other production processes. EPA is also not aware of any public 
sources of these data. Therefore, although we believe it is unlikely 
that these data elements would cause competitive harm, EPA has decided 
not to make determinations for these data elements at this time.
    Except for the data elements discussed above, we have determined 
that all other data elements in this data category are not CBI for the 
same reasons we set forth in Section II.C.7 of the July 7, 2010 CBI 
proposal (see 75 FR 39111). We disagree with commenters who recommended 
that the number of process lines or units be held confidential because 
their disclosure would be likely to cause competitive harm. This 
information is generally included in both construction and Title V 
operating permits as well as in permit applications and permit fact 
sheets and is therefore already publicly available. Permits include 
requirements or limits for each specific unit or process line. Because 
the number of production units is already publicly available, these 
data elements do not qualify for confidential treatment (see 40 CFR 
2.208(c)).
7. Unit/Process Operating Characteristics Category That Are Not Inputs 
to Emission Equations
    New Data Elements: EPA has added four new data elements to this 
data category (see Section II.B.1 of this preamble for a list of the 
new data elements). The new data elements are reported by municipal 
landfills that use an alternative methane correction factor instead of 
the default factor provided in 40 CFR part 98, subpart HH. The data 
elements consist of information on the operation of aeration systems at 
the landfill, such as the number of hours it was operated and the 
fraction of the landfill subject to aeration. These new data elements 
were added to subpart HH by the amendments published on October 28, 
2010 (75 FR 66434) and were not included in the July 2010 CBI 
proposals. These data elements are the same type of data as other data 
elements included in this category in the July 2010 CBI proposals 
(e.g., the type of cover material used and the surface area of the 
landfill (reported under 40 CFR 98.346(f)). Like these other data 
elements in this category, the four data elements at issue provide 
general information about the operation of a municipal landfill; such 
information does not reveal any trade secrets or other sensitive 
business information regarding the design or operation of an aeration 
system or the landfill. Further, this type of data on landfills is 
generally already publicly available from the municipalities operating 
landfills. We have therefore concluded that the release of this data 
will not cause substantial competitive harm to the reporter and are 
finalizing our determination that these data elements are non-CBI in 
this action.
    Moved and Double-Listed Data Elements: In response to comments 
stating that CO2 generated by a process is not actual 
emissions if a portion of the CO2 is collected, EPA has 
added six data elements to this data category under certain conditions. 
Specifically, the data elements for reporting the total CO2 
generated by a process under three subparts are added to this category 
only for those facilities that collect a portion of the CO2 
for use on site or for shipment off site. We are including these data 
elements in the Unit/Process Operating Characteristics that are Not 
Used as Inputs to Emission Equations Data Category, because these data 
elements relate to operating characteristics of a production process 
that may vary over time. As with the other data elements in this 
category, they do not meet the definition of emission data at 40 CFR 
2.301(a)(2)(i)(A). As discussed in more detail below in this 
subsection, we received comments that the proposed category-based non-
CBI determination may not be appropriate for all the data elements 
assigned to this category and, in response, we reviewed individual data 
elements assigned to this data category to determine whether the 
proposed determination applies. For reporters who collect the generated 
CO2 by a process, we determined that the data element on the 
amount of CO2 is not CBI. Public availability of the data is 
not likely to cause substantial harm to the competitive position of the 
reporter because the data reported is the GHG generated by the 
industrial process and does not reveal any sensitive information on how 
much of the GHG generated was collected, how much of the collected GHG 
was used onsite (e.g., for urea production or sugar refining), or how 
much was transferred off site. As described in Section II.A.4 of this 
preamble, EPA moved 37 data elements that were improperly placed in the 
Inputs to Emission Equations category in the July 2010 CBI proposals. 
EPA also double-listed\8\ six data elements in both the Inputs to 
Emission Equations category and the Unit/Process Operating 
Characteristics that are Not Inputs to Emission Equations category. 
These 43 data elements share the same characteristics as those data 
elements previously assigned to the Unit/Process Operating 
Characteristics that are not Inputs to Emission Equations category in 
the July 2010 CBI proposals. Specifically, they consist of operating 
parameters that change over time that are not used as inputs to 
emission equations. For a list of the reassigned data elements, see the 
memorandum ``Final Data Category Assignments and Confidentiality 
Determinations for Part 98 Reporting Elements'' (see Docket EPA-HQ-OAR-
2009-0924 and the Web site, http://www.epa.gov/climatechange/emissions/ghgrulemaking.html). As discussed in more detail below in this 
subsection, we received comments that the proposed category-based non-
CBI determination may not be appropriate

[[Page 30802]]

for all the data elements assigned to this category and, in response, 
we reviewed individual data elements assigned to this data category to 
determine whether the proposed determination applies. Based on our 
review, we determined that 10 of the 43 data elements are entitled to 
confidential treatment. The 10 data elements determined to be CBI are 
as follows:
---------------------------------------------------------------------------

    \8\ For those reporters who do not use the data elements in the 
specified equations in Section II.B.1 of this preamble, the data 
elements are in the Unit/Process Operating Characteristics that are 
Not Inputs to Emission Equations category.
---------------------------------------------------------------------------

     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)).
     Annual average value of %Ooxy reported by 
refineries (40 CFR 98.256(f)(8)).
     Annual average value of the inlet air flow rate reported 
by refineries (40 CFR 98.256(f)(9)).
     Annual average value of oxygen-enriched air flow rate 
reported by refineries (40 CFR 98.256(f)(9)).
     Annual average value of %N2,oxy reported by 
refineries (40 CFR 98.256(f)(9)).
     Number of regeneration cycles or measurement periods 
during the reporting year for each catalytic cracking unit, traditional 
fluid coking unit, and catalytic reforming unit reported by refineries 
(40 CFR 98.256(f)(13).
     Average coke burn-off quantity per cycle or measurement 
period for each catalytic cracking unit, traditional fluid coking unit, 
and catalytic reforming unit reported by refineries (40 CFR 
98.256(f)(13)).
     Annual volume of recycled tail gas (if not used to 
calculate the recycling correction factor) (reported under 40 CFR 
98.256(h)(5)).
     Annual average mole fraction of carbon in the tail gas (if 
not used to calculate recycling correction factor) (reported under 40 
CFR 98.256(h)(5)).
    As with the other data elements in this category, none of these 10 
data elements meet the definition of emission data at 40 CFR 
2.301(a)(2)(i)(A) because they are not ``* * * information necessary to 
determine the identity, amount, frequency, concentration, or other 
characteristics (to the extent related to air quality) of any emission 
which has been emitted by the source* * *'' We also determined that 
public availability of these data would cause competitive harm to 
reporters for the following reasons. Information on the flow rates and 
composition of inputs to the catalytic cracking units (i.e., 40 CFR 
98.256(f)(8) and (f)(9)) provide insight into the operation of the 
production process that may reveal operating conditions that are 
considered sensitive by the reporter because they provide the reporter 
with a competitive advantage over other refineries. The average coke 
burn-off quantity per cycle/measurement period for individual catalytic 
cracking units, traditional fluid coking units, and catalytic reforming 
units (reported under 40 CFR 98.256(f)(13)) discloses information about 
the operation of the unit (e.g., the level of reforming), and indicates 
the quantity of naphthalene the feedstock and the quantity of aromatics 
produced. The annual volume of tail gas recycled and the mole fraction 
of carbon in the tail gas (reported under 40 CFR 98.256(h)(5)) provide 
information about the refinery's ability to process different types of 
crude oil, and the products the refinery can produce. Further, comments 
from refineries indicate that they consider these data elements to be 
sensitive and take precautions to ensure this information is not made 
public. We are also not aware of any public sources for these data 
elements. For the reasons described above, we conclude that these data 
elements are CBI.
    EPA decided not to make final confidentiality determinations for 
seven of the 43 data elements in this category. These data elements are 
as follows:
     Annual average value of the exhaust gas flow rate reported 
by refineries (40 CFR 98.256(f)(7)).
     Annual average value of %CO2 reported by 
refineries (40 CFR 98.256(f)(7)).
     Annual average value of %CO reported by refineries (40 CFR 
98.256(f)(7)).
     Annual average value of %O2 reported by 
refineries (40 CFR 98.256(f)(8)).
     Annual average value of %CO2 reported by 
refineries (40 CFR 98.256(f)(8)).
     Annual average value of %CO reported by refineries (40 CFR 
98.256(f)(8)).
     Annual average value of %N2 exhaust reported by 
refineries (reported under 40 CFR 98.256(f)(9)).
    Based on our review of these data elements, we have concluded that 
the configuration of individual facilities would impact the 
confidentiality determinations for these data elements. Because we do 
not have the necessary information on the facility configuration, we 
are unable to make a confidentiality determination for these data 
elements. For example, under 40 CFR 98.256(f)(7) facilities report the 
exhaust flow rate and outlet concentrations of CO2 and CO. 
In some cases, the exhaust gases from these units are exhausted 
directly to the atmosphere. In such cases, the flow rate and 
CO2 and CO content of the exhaust gases meet the definition 
of emission data at 40 CFR 2.301(a)(2)(i)(A) because they are ``* * * 
information necessary to determine the identity, amount, frequency, 
concentration, or other characteristics (to the extent related to air 
quality) of any emission which has been emitted by the source* * *'' 
and therefore precluded from confidential treatment pursuant to CAA 
section 114(c). However, other reporters do not exhaust these gases 
directly to the atmosphere but instead route them to other units (e.g., 
other combustion units). For these facilities, the flow rate and 
concentrations of CO2 and CO reported under 40 CFR 
98.256(f)(7) would not be precluded from CBI treatment because the data 
elements would not meet the definition of emission data since they do 
not provide information on the type and characteristics of pollutants 
emitted to the atmosphere. Because we do not have information on site-
specific conditions that impact the status of these data elements, we 
have decided not to make determinations for these 7 data elements in 
this action.
    With respect to the remaining 26 data elements moved to the data 
category from Inputs to Emissions Equations, for the reasons discussed 
in more detail in Section II.C.7 of the July 7, 2010 CBI proposal (see 
75 FR 39111), EPA has concluded the disclosure of these data elements 
is unlikely to cause competitive harm. These data elements do not 
provide insight into current production rates, raw material 
consumption, or other information that competitors could use to discern 
market share and other sensitive information. They consist of data 
elements such as the amount and carbon content of gases sent to flares 
at refineries and the dates on which ventilation/degasification occurs 
at underground coal mines, which are not considered to be sensitive 
information.
    Comment: The data elements in this data category consist of 
operating characteristics related to production processes. Unlike the 
Unit/Process Static Characteristics that are Not Inputs to Emission 
Equations category discussed Section II.B.6 of this preamble, these 
data elements change with changes in operations or processes. Some 
commenters agreed with EPA's proposed determination that the data in 
this category would not qualify for confidential treatment under CAA 
section 114(c) because it was general information that was not likely 
to cause competitive harm to reporters. However, several commenters 
expressed concern

[[Page 30803]]

that competitors could use some data elements in this category, in 
combination with other data, to discern information about individual 
facilities and processes, causing competitive harm. Some commenters 
noted that many of the data elements in this category are not already 
available to the public, supporting the assertion that they would cause 
competitive harm if disclosed. For example, one commenter noted that 
the number of operating kilns reported by a cement manufacturing 
facility (reported under 40 CFR 98.86(a)(3) and 98.86(b)(4)) was not 
information already available to the public. This commenter stated that 
the number of operating kilns could be used by competitors to determine 
the amount of product produced, estimate market share, and pricing 
structures. The commenter believes that this information could put the 
reporter at a competitive disadvantage. Other commenters recommended 
that the quality assurance/quality control data, collected by 
facilities to verify data provided by raw material suppliers, should be 
held confidential because competitors could use these data to determine 
product composition and process design or operating characteristics 
that reporters consider proprietary. One commenter stated that certain 
information submitted as part of BAMM extension requests was sensitive 
information requiring confidential treatment. This commenter 
specifically identified the following data elements from BAMM extension 
requests as confidential: the reason for the extension request (40 CFR 
98.3(d)(2)(ii)(C)) and the planned installation date of monitoring 
equipment (40 CFR 98.3(d)(2)(ii)(F)). The commenter noted that this 
information could be used by competitors to determine a company's 
ability to capitalize on specific market opportunities and would allow 
competitors to target markets based on weaknesses and vulnerabilities. 
The commenter further stated that information on future shutdowns would 
allow competitors to increase production during a reporter's shutdown 
and would likely cause serious harm to the reporter's competitive 
position.
    Other commenters recommended EPA allow reporters to make individual 
case-by-case CBI claims for data elements in this data category.
    Response: The comments raised a concern that the proposed non-CBI 
determination may not be appropriate for certain data elements in this 
category. Note that EPA did not receive comments specific to the data 
elements in this category objecting to our proposed determination that 
the data elements in this category do meet the definition of emission 
data because none of the data elements are inputs to equations/
calculation methods or information otherwise needed to calculate or 
determine emissions. We therefore conclude that the proposed 
determination was appropriate in this regard and finalize in this 
action our determination that the data elements in this category are 
not emission data under 40 CFR 2.301(a)(2)(i).
    In response to the comments that a non-CBI determination for this 
category was not appropriate, EPA decided to re-evaluate each data 
element assigned to this data category to determine whether the 
proposed determination applies. As part of this process, EPA reviewed 
public comments regarding specific data elements, conducted additional 
reviews of alternative public data sources (e.g., Title V permits, NEI 
databases) and re-evaluated whether each data element would be likely 
to cause harm to a reporter's competitive position. Through this 
process, we have determined that ten data elements in the Unit/Process 
Operating Characteristics that are Not Inputs to Emission Equations 
category are CBI. These data elements include the following:
     The reason for submitting a BAMM extension request 
(reported under 40 CFR 983(d)(ii)(C)).
     The reason why equipment was not or could not be obtained 
and installed during a planned shutdown between October 30, 2009 and 
April 1, 2010 as reported in a BAMM extension request (reported under 
40 CFR 98.3(d)(2)(ii)(E)).
     Planned installation date for monitoring equipment as 
reported in a BAMM extension request (reported under 40 CFR 
98.3(d)(2)(ii)(F)).
     The anticipated date on which a facility applying for a 
BAMM extension will begin using the monitoring methods specified in 
Part 98 (reported under 40 CFR 98.3(d)(2)(ii)(F)).
     The sampling analysis results of carbon content of 
feedstock as determined from QA/QC supplier data under 40 CFR 98.74(e) 
by ammonia manufacturing facilities (reported under 40 CFR 
98.76(b)(6)).
     The mass fraction of each sample analyzed for all tests 
used to verify (i.e., QA/QC) the carbonate-based mineral mass fraction 
for each carbonate-based raw material charged to a continuous glass 
melting furnace (reported under 40 CFR 98.146(b)(5)(iii)).
     The explanation of change greater than 30 percent in a 
magnesium production facility's cover gas usage rate (reported under 40 
CFR 98.206(g)).
     The types of materials loaded by vessel type that have an 
equilibrium vapor phase concentration of CH4 of 0.5 volume 
per cent or greater (reported under 40 CFR 98.256(p)(2)).
     The sampling analysis results for carbon content of 
petroleum coke consumed by a silicon carbide production facility as 
determined for QA/QC of data provided by raw material suppliers 
(reported under 40 CFR 98.286(b)(7)).
     The sampling analysis results of carbon content of 
petroleum coke consumed by titanium dioxide production facilities for 
QA/QC of data provided by raw material suppliers (reported under 40 CFR 
316(b)(13)).
    EPA has learned that these data elements are not publicly available 
information, and they consist of proprietary information about a 
process, method of operation, composition of raw materials or products 
that are commonly considered CBI.
    EPA agrees with commenters who recommended that certain data 
elements submitted as part of BAMM extension requests are eligible for 
confidential treatment. At the time of the CBI proposals, we believed 
the reason for requesting a BAMM extension (reported under 40 CFR 
98.3(d)(2)(ii)(C)) and the reason why equipment was not (or could not 
be) installed (reported under 40 CFR 98.3(d)(2)(ii)(E)) would be 
generic information that would not reveal any sensitive operating 
information. However, since that time EPA has reviewed a number of BAMM 
extension requests and determined that they contain more detailed 
information, such as process diagrams and operational information, than 
we had previously anticipated. We also note that many facilities have 
claimed these data as CBI in their BAMM extension requests because they 
provide insight into facility-specific operating conditions or process 
design that are not available from other sources and would harm their 
competitive position if released. We also agree with those commenters 
who stated that the planned installation date and the date of 
anticipated startup (reported under 40 CFR 98.3(d)(2)(ii)(F)) provides 
sensitive information regarding future process shutdowns. These data 
elements likely would cause competitive harm if disclosed because 
competitors could use this information to anticipate and potentially 
benefit from future decreases in product supply. For example, a 
competitor able to anticipate the shutdown of a reporter's facility and 
resulting decrease in product supply,

[[Page 30804]]

could use this information to steal customers from a reporters by 
increasing its own production or could adjust the price of their own 
products.
    We also agree that the results of sampling and analysis data used 
to quality assurance/quality control data on the composition of raw 
materials would be likely to cause competitive harm to reporters and is 
not available from other sources. Competitors could use the composition 
of raw materials to identify a firm's raw material supplier and 
estimate production costs. In the case of glass manufacturing 
facilities, the data would also reveal proprietary information about 
product formulation or recipe. Since this information is not available 
from other sources and may be used by competitors to devise competitive 
strategies that would likely harm the competitive position of the 
reporter, EPA has determined that these data are eligible for 
confidential treatment.
    We have also determined that the data element reported by petroleum 
refineries under subpart Y related to the types of materials loaded 
that have an equilibrium vapor phase concentration of CH4 of 
0.5 volume percent or greater (40 CFR 98.256(p)(2)) are entitled to 
confidential treatment. EPA has learned that this data is only released 
in aggregate form by EIA. This data could be used by competitors in 
combination with other information to discern the approximate 
quantities of materials used in loading operations. Information of this 
type would provide competitors insight into the shipping activities 
conducted at refineries.
    Except for the data elements listed above, we conclude for the 
reasons set forth below and in Section II.C.7 of the July 7, 2010 CBI 
proposal that the proposed non-CBI determination is appropriate for all 
other data elements belonging to this data category and are finalizing 
these determinations in this action. We disagree with commenters who 
recommended that the number of units operated during a reporting year 
should be held confidential. This information cannot be used to 
determine production data for a facility and would not provide insight 
into a facility's design or operating procedures. It is also unlikely 
to reveal any information regarding future production that would be 
useful to competitors or allow competitors to anticipate future 
shutdowns. EPA therefore continues to conclude that public availability 
of these data elements would not cause competitive harm to the 
reporter.
8. Test and Calibration Methods Category
    Moved Data Elements: EPA determined that the following seven data 
elements were incorrectly assigned to the Methods and Methodological 
Tier category:
     The basis for the unit-specific factor (i.e., select from 
average of multiple source tests; Single source test within last 5 
years; Single source test more than 5 years ago; Source test of 
identical unit at same facility) (40 CFR 98.256(i)(8)).
     The basis for the CO2 emission factor used in 
Equation Y-16b (40 CFR 98.256(j)(8)).
     The basis for the carbon emission factor used in Equation 
Y-16b (40 CFR 98.256(j)(8)).
     Indication of the measurement or estimation method used 
for measuring volumetric flow discharge for each process vent (40 CFR 
98.256(l)(5)).
     Indication of the measurement or estimation method used 
for measuring average mole fraction of each GHG for each process vent 
(40 CFR 98.256(l)(5)).
     The basis for the CH4 emission factor used 
(i.e., select from weekly or more often measurements; Periodic (less 
frequent than weekly) measurements; average of multiple source tests; 
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)).
    EPA has also determined that the following two data elements were 
incorrectly assigned to the Inputs to Emission Equations category:
     Date of measurement of the volumetric flow rate for each 
ventilation monitoring point (40 CFR 98.326(f)).
     Date of measurement of methane concentration for each 
ventilation monitoring point (40 CFR 98.326(g)).
    These nine data elements provide information on how specific 
parameters or emission factors were determined (e.g., weekly 
measurements versus daily measurements, direct measurement versus 
engineering estimates) or the dates on which measurements were made. 
They are not used to calculate emissions or to determine the 
calculation method used to calculate the GHG emissions. Therefore, we 
have assigned these data elements to the Test and Calibration methods 
category, which contains similar data elements. For example, 40 CFR 
98.256(i)(8) is similar to 40 CFR 98.256(e)(10), which requires 
refineries to report the basis for the value of the fraction of carbon 
in the flare gas contributed to methane by selecting from the following 
list: Daily or more often measurements; weekly measurements; periodic 
(less frequent than weekly) measurements; One-time measurement; 
engineering estimate; default (0.4); and other. Since these data 
elements are similar in type to the data elements included in this 
category, we have concluded that the non-CBI determination applied to 
the Test and Calibration Methods category also applies to these data 
elements.
    Comment: This data category includes information on calibration 
methods used to calibrate monitoring instruments, the frequency of 
sampling and analysis, methods used in performance tests, and methods 
used for analyzing the compositions of materials. Few commenters 
submitted comments on this data category. Many of those commenters 
agreed with EPA's proposed determination that disclosure of the data 
elements in this category would not cause competitive harm to 
reporters. One commenter noted that the type of test methods and other 
data elements included in this data category are generally already 
specified in the GHG Reporting Rule. This commenter asserted that data 
elements confirming that the correct monitoring methods or calibration 
procedures were used are generally not the type of data considered 
competitively sensitive by reporters.
    A few commenters disagreed with EPA's proposed determination for 
this data category. One commenter thought that the description of the 
BAMM used (reported under 40 CFR 98.3(c)(7)) should be held as 
confidential information, but did not provide any explanation or 
rationale for why this data element would be likely to cause 
substantial harm to their competitive position. One commenter indicated 
that the method used to measure the frequency and duration of anode 
effects or overvoltage (reported under 40 CFR 98.66(d)) should be 
considered confidential. This commenter stated that information about 
the method used to measure these parameters could be used in 
combination with other reported data to estimate other parameters that 
would cause competitive harm (e.g., aluminum production). This 
commenter also identified the date on which tests were completed to 
determine emissions factors (reported under 40 CFR 98.66(c)(3)) as 
confidential, but did not provide any rationale for why this data 
element would cause competitive harm.

[[Page 30805]]

    Response: Although some commenters disagreed with our proposed 
determination for this category, only one provided rationale supporting 
that claim. However, for the reasons explained below, we disagree with 
the commenter that the method used to measure parameters, such as the 
frequency and duration of anode effects or overvoltage (reported under 
40 CFR 98.66(d)), could be used to derive other sensitive information 
that would cause competitive harm. As previously described in Section 
II.C.9 in the proposal preamble (75 FR 39094, July 7, 2010), the data 
elements in this category, including those noted in the comments, 
consist of descriptions of devices or methods used to measure a 
parameter, the method and frequency of calibrating measurement devices, 
and the frequency and analytical methods used for conducting 
performance tests or sample analysis. The type of device used to make 
the measurement (e.g., flow meter, weighing scales) and the frequency 
and method of calibrating the measuring device do not reveal the actual 
values of the measured parameters or provide any other sensitive 
information about the design or operating characteristics of a process. 
The standardized analytical method and the frequency of sample 
collection and analysis are generally specified by each subpart and do 
not provide any insight into the design or operating conditions of a 
facility. For the reasons stated above and in Section II.C.9 in the 
proposal preamble (75 FR 39094, July 7, 2010), we conclude that our 
proposed non-CBI determination for this data category is appropriate.
9. Production/Throughput Data Elements That Are Not Inputs to Emission 
Equations and Raw Materials Consumed That Are Not Inputs to Emission 
Equations Categories
    Moved and Double-Listed Data Elements: After reviewing industry 
comments related to the capture of process emissions for use on site, 
EPA determined that the data element required to be reported by 40 CFR 
98.196(b)(17)(i) was incorrectly assigned to the Unit/Process Operating 
Characteristics That Are Not Used as Inputs to Emission Equations Data 
Category. EPA has determined that this data element, which requires 
lime manufacturers to report the amount of CO2 captured for 
use in on-site processes, is information about materials used in a 
production process. Such information relates to production (such as the 
actual production rate) and not unit/process operating characteristics. 
Therefore, we have assigned this data element to the Production/
Throughput Data That Are Not Inputs to Emissions Equations Data 
Category (which contains similar data elements (e.g., 40 CFR 
98.76(b)(13) requiring ammonia facilities to report the amount of 
CO2 from the ammonia production process used to produce 
urea) and have concluded that the CBI determination applied to that 
category also applies to this data element.
    EPA has moved three data elements from the Inputs to Emission 
Equations category to the Production/Throughput Data That Are Not 
Inputs to Emission Equations and double-listed \9\ two data elements in 
these two categories.\10\ Each of these five data elements requires the 
reporting of either the quantity or composition of a product, which are 
the same type of data assigned to this category. For example, the 
annual quantity of petrochemicals produced (40 CFR 98.246(a)(5)), 
volume or mass of off-specification product produced (40 CFR 
98.246(a)(9)), and monthly production of titanium dioxide (40 CFR 
98.316(b)(8)) are the same type of data as 40 CFR 296(b)(6) (monthly 
production of soda ash) and 40 CFR 98.316(b)(5) (annual production of 
titanium dioxide). The cumulative volumetric biogas flow and the weekly 
average CH4 concentration for each week that biogas is 
collected for destruction reported by wastewater treatment facilities 
using daily sampling ((40 CFR 98.356(d)(2) and (d)(3)) are also the 
same as the other data elements listed in this category because they 
can be used to determined the average weekly biogas production for the 
wastewater treatment facility. Because these five data elements are the 
same type of data as the other data elements in this category, we have 
concluded that the CBI determination applied to that category also 
applies to this data element.
---------------------------------------------------------------------------

    \9\ For those reporters who do not use the data elements in the 
equations specified in Section II.B.1, the data elements are in the 
Production/Throughput Data That Are Not Inputs to Emission 
Equations.
---------------------------------------------------------------------------

    Comment: Many commenters supported EPA's proposed determination 
that the data in these two data categories (none of which are inputs to 
equations/calculation methods or information otherwise needed to 
calculate or determine emissions) qualify for confidential treatment. 
The commenters agreed that the data elements in these data categories 
should be kept confidential because disclosure of these data would 
cause substantial harm to the competitive position of reporters. They 
argue that disclosure of these data could provide competitors with 
insight into a facility's operational strengths and weaknesses as well 
as revealing information about raw material sources. Some commenters 
argued that the data are currently held as CBI under other Federal 
programs that collect these data. Others agreed with EPA's proposal 
that the data elements in these data categories do not meet the 
definition of emission data (40 CFR 2.301(a)(2)(i)).
    Several commenters identified specific data elements from these 
data categories as confidential and provided information describing why 
they considered the data sensitive. For example, commenters stated that 
data elements that provide the chemical composition of products could 
be used by competitors to deduce the types of feedstock or raw 
materials used in the process. Other commenters stated that data on the 
quantities of product and by-products produced and raw materials 
consumed should be kept confidential because this information can be 
used by competitors to determine production costs, process efficiency, 
and market share.
    Although most commenters agreed with EPA's proposed determinations 
for these two data categories, a few commenters believe that EPA should 
make data in these categories available to the public. Some commenters 
recommended that EPA disclose the data in these data categories because 
it would promote confidence in the data and would be consistent with 
the CAA. They stated that these data elements are verification data 
that are necessary to ensure the reported emissions are accurate. They 
argued that since the data elements may be used to verify the GHG 
emissions, they meet the definition of emission data in 40 CFR 
2.301(a)(2)(i). They further argued that these data elements are 
especially important where facilities use indirect measurement methods 
(e.g., emission factors) to estimate emissions. Another commenter 
stated that EPA should publish production throughput and raw material 
consumption data because this information is essential for making 
comparisons between facilities. This commenter argued that the data in 
these data categories should be made public because, without this 
information, the public would not be able to determine the amount of 
GHGs per unit of production, which is useful for assessing and 
comparing the carbon efficiency of a facility.
    Response: We disagree with those commenters who argued that, 
because the data in these categories are used to verify the reported 
GHG emissions, these data meet the definition of

[[Page 30806]]

emission data in 40 CFR 2.301(a)(2)(i). As we described in the July 7, 
2010 CBI proposal, none of the data elements in these data categories 
are used by reporters to calculate GHG emissions under Part 98. 
Although the data may be used to verify the accuracy of the reported 
emissions, we do not consider them ``necessary to determine'' the 
amount of GHG emissions under Part 98 because emissions are in fact 
calculated without these data elements. Therefore, these data elements 
do not meet the definition of emission data in 40 CFR 2.301(a)(2). We 
agree that these data elements are useful for making comparisons 
between industries and individual facilities and could be useful to 
industry, non-government organizations (NGOs), public, and other 
stakeholders when assessing any regulatory program. However, CAA 
section 114(c) requires that EPA afford confidential treatment to CBI 
(except for emission data). These commenters did not claim or provide 
any information indicating that data elements in these categories are 
not CBI. Further, many other commenters provided information explaining 
how the release of data in this category might provide insight into 
production rates, methods, and efficiencies causing harm to the 
competitive position of reporters. We therefore conclude that our 
proposed CBI determinations for these two data categories are 
appropriate and finalize these CBI determinations in this action.
10. Process-Specific and Vendor Data Submitted in BAMM Extension 
Requests Category
    Comment: Only a few commenters submitted comments on this data 
category. The majority of those commenters agreed with EPA's proposed 
determination that disclosure of these data would substantially harm 
the competitive position of reporters and that therefore the data in 
this category qualify for confidential treatment. A few commenters 
provided very general statements that disclosure of these data would be 
consistent with CAA and the Greenhouse Gas Reporting Program (GHGRP). 
We have also received comments generally claiming that all or most Part 
98 data elements should be made available to the public. However, these 
commenters did not provide any specific rationale for that position.
    Response: Although some commenters disagreed with our proposed 
determination that data in this category qualify as CBI, none provided 
any rationale or information for us to evaluate whether our proposed 
determination is not appropriate for any data elements in this data 
category. The commenters did not explain how the data in this category 
meet the definition of emission data, provide alternative public 
sources demonstrating that the data is already publicly available, or 
provide information demonstrating how disclosure of the data elements 
in this category would not cause competitive harm. Furthermore, most 
comments on this data category confirm that disclosure of the data 
elements in this category could divulge sensitive information about 
specific processes used by the facility or vendor information, and the 
disclosure of this information is likely to cause substantial harm to 
reporters. In light of the above, we conclude that our proposed CBI 
determination for this data category is appropriate and finalize that 
determination in this action.

C. Suppliers

1. Major Changes to Determinations for Supplier Data Elements Since 
Proposal
    We are finalizing our category assignments of the data elements in 
the supplier subparts specified in Section I.C. of this preamble for 
the 11 supplier data categories and our confidentiality determinations 
for these 11 supplier data categories, including the individual 
determinations for certain data elements in the following categories: 
GHGs Reported, Production/Throughput Quantities and Composition, and 
Unit/Process Operating Characteristics. Major changes to the 
determinations for the supplier data elements since our CBI proposals 
include:
     Although we had proposed that the total CO2 
supplied as reported under subpart PP would be non-CBI, we have 
determined in this final action that this information is CBI for 
industrial CO2 production facilities (e.g., ammonia 
production facilities that collect CO2 for transfer off 
site), is non-CBI for CO2 production wells, and is CBI for 
importers and exporters for the reasons specified in Section II.C.3 of 
this preamble.
     In this final action, we have added the following new data 
element to the GHGs Reported category: the total annual CO2 
mass supplied in metric tons as calculated using Equation PP-3b (40 CFR 
98.426(c)(2)(iii)). We have determined that this data element is CBI 
when reported by industrial production facilities, and is non-CBI when 
reported by CO2 production wells for the reasons specified 
in Section II.C.3 of this preamble.
     Although we had proposed a non-CBI status for the 
following data elements in the GHGs Reported data category, we have 
determined in this final action that they qualify as CBI under the 
following conditions for the reasons specified in Section II.C.3 of 
this preamble. These data elements are as follows:

--The total combined supplier level CO2e (40 CFR 
98.3(c)(5)(i)) is CBI if the reporter produces, imports, exports or 
otherwise supplies just one product and if EPA has determined that the 
amount of that one product produced, imported, exported or otherwise 
supplied is CBI.
--The quantity of each GHG (40 CFR 98.3(c)(5)(ii)) is CBI if the 
reporter produces, imports, exports, or otherwise supplies just one 
product and if EPA has determined that the amount of that one product 
produced, imported, exported or otherwise supplied is CBI.

     EPA has decided not to make final confidentiality 
determinations for data elements reported by importers of Coal-Based 
Liquids and Petroleum Products (subparts LL and MM) describing the 
amount and type of materials imported. These data elements are 
described in the GHGs Reported and Production/Throughput data 
categories. For additional information, see Sections II.C.3 and II.C.4 
of this preamble.
     In this final action, we have added the following two new 
data elements to the Production/Throughput Quantities and Composition 
data category. We have also determined, as explained in Section II.C.4 
of this preamble, that these data elements are CBI when reported by 
industrial production facilities, and non-CBI when reported by 
CO2 production wells. The data elements are as follows:

--The total annual CO2 mass through main flow meter(s) in 
metric tons (40 CFR 98.426(c)(2)(i)).
--The total annual CO2 mass through subsequent flow meter(s) 
in metric tons (40 CFR 98.426(c)(2)(ii)).
     Although we had proposed a non-CBI status for the 
following data elements in the Production/Throughput data category, we 
have determined in this final action that they qualify as CBI for the 
reasons specified in Section II.C.4 of this preamble. These data 
elements are as follows:

--Facility-level and meter-level CO2 supply data reported by 
industrial CO2 production facilities under subpart PP.
--The amount of CO2 supplied to each of 13 types of end-
users reported under subpart PP.

     Although we had proposed a non-CBI status for the 
following data elements in the Unit/Process Operating

[[Page 30807]]

Characteristics data category, we have determined in this final action 
that they qualify as CBI for the reasons specified in Section II.C.6 of 
this preamble. These data elements are as follows:

--The dates on which fluorinated GHGs are imported and/or exported 
reported under subpart OO (40 CFR 98.416(c)(3) and (d)(5)).
--The port of entry or export reported under subpart OO (40 CFR 
98.416(c)(4) and (d)(5)).
--The reason for submitting a BAMM extension request and reason why 
monitoring equipment was not installed by the required deadline 
reported under subpart A (40 CFR 98.3(d)(2)(ii)(C)) and 
98.3(d)(2)(ii)(E)).
--The dates of planned installation and anticipated compliance with 
monitoring requirements submitted in BAMM extension requests reported 
under subpart A (40 CFR 98.3(d)(2)(ii)(F)).

     In this final action, we have added the following new data 
element to the Unit/Process Operating Characteristics data category: 
Location of each flow meter in relation to the point of segregation (40 
CFR 98.426(c)(2)(iv)). We have also determined that this data element 
is not CBI for the reasons specified in Section II.C.6 of this 
preamble.
     In this final action, we have added the following seven 
new data elements to the Amount and Composition of Materials Received 
data category. We have also determined that these data elements are CBI 
for the reasons specified in Section II.C.10 of this preamble. The data 
elements are as follows:

--EIA crude stream code (40 CFR 98.396(a)(20)(v)).
--Crude stream name (40 CFR 98.396(a)(20)(v)).
--Generic name for crude stream (40 CFR 98.396(a)(20)(vi)).
--EIA two-letter country or state production area code for batch (40 
CFR 98.396(a)(20)(vi)).
--Volume of crude oil in barrels injected into a crude oil supply or 
reservoir (40 CFR 98.396(a)(22)).
--Report the next most appropriate tier of the batch definition for 
reporting batch information under 40 CFR 98.396(a)(20) (40 CFR 
98.396(a)(23)).
--Indication of whether the material is a blended non-crude feedstock 
or blended product (40 CFR 98.396(d)(1)(iii).
    The rationales for these changes can be found below in Sections 
II.C.2 through C.13 of this preamble and in the ``Proposed 
Confidentiality Determinations and Data Handling Procedures for Part 98 
Data: Responses to Public Comments'' (available in the Docket EPA-HQ-
OAR-2009-0924 and on the Web site http://www.epa.gov/climatechange/emissions/ghgrulemaking.html).
    A final list of all the data elements in each supplier data 
category, by subpart, is provided in a memorandum (see Memorandum 
``Final Data Category Assignments and Confidentiality Determinations 
for Part 98 Reporting Elements'' in Docket EPA-HQ-OAR-2009-0924 and on 
the Web site (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html).
2. General Comments on the Supplier Data Categories
    Comment: Most commenters agreed with our proposed determination 
that none of the supplier data categories meet the definition of 
emission data in 40 CFR 2.301(a)(2)(i). Some commenters agreed with our 
proposal, but argued that all data that are not emission data should be 
kept confidential.
    Two commenters disagreed with EPA's proposal that none of the 
supplier data categories meet the definition of emission data. These 
commenters stated that the fuels and other products reported by 
suppliers are eventually emitted and that the suppliers are thus the 
ultimate source of those emissions. They further argued that if ``* * * 
EPA seeks to measure emissions from entities which use supplied fuels 
or gases, it may measure emissions from these ``source[s] of 
emissions'' by seeking data from suppliers.'' \11\
---------------------------------------------------------------------------

    \11\ See letter to the U.S. EPA Administrator from the Clean Air 
Task Force, Natural Resources Defense Council, and Sierra Club, 
submitted August 26, 2010 (EPA-HQ-OAR-2009-0924-0018.1).
---------------------------------------------------------------------------

    Response: EPA disagrees with those commenters who stated that the 
definition of emission data includes supplier data. As explained in the 
July 7, 2010 CBI proposal, 40 CFR 2.301(a)(2)(i) defines emission data 
to refer to emissions emitted or authorized to be emitted by a 
reporting facility. The data reported under the supplier subparts 
pertains to certain products that would result in GHG emissions if 
released, combusted, or oxidized by the downstream user of these 
products. EPA agrees that it may use the data reported under the 
supplier subparts to calculate the GHG emissions that would result from 
the use or combustion of the products supplied by these reporters. 
Nevertheless, the data reported under the supplier subparts does not 
include information on the actual emissions that occur at supplier 
facilities. Therefore, in this action, we finalize our determination 
that the supplier data elements do not meet the definition of emission 
data as that term is defined in 40 CFR 2.301(a)(2)(i).
    We also disagree with those commenters who stated that all supplier 
data should be held as confidential because the supplier data does not 
meet the definition of emission data. Under the Freedom of Information 
Act and the CAA section 114(c), EPA is required to disclose information 
that does not qualify for confidential treatment. In the July 2010 CBI 
proposals, EPA proposed to determine, either by category or data 
element, that certain supplier data elements are CBI while others are 
non-CBI. The CBI proposals provided detailed rationales for EPA's 
proposed determinations. Most commenters did not provide information 
that a specific determination or supporting rationale was flawed or 
otherwise inappropriate. For those that did raise supplier-specific 
issues, we addressed those comments in the relevant sections of this 
preamble (see Section II.C.3 through II.C.13 of this preamble for 
comments on the supplier data categories).
3. GHGs Reported Category
    New Data Elements: EPA has added one new data element to this data 
category. This data element requires production facilities subject to 
subpart PP to report the total annual CO2 mass supplied in 
metric tons as calculated using Equation PP-3b (40 CFR 
98.426(c)(2)(iii)). This new data element was added to subpart PP by 
the amendments published on December 17, 2010 (75 FR 79092) and was not 
included in the July 2010 CBI proposals. This data element is identical 
to other data elements already assigned to this data category (e.g., 
the annual mass of CO2 from all flow meters and 
CO2 streams that deliver CO2 to containers (40 
CFR 98.426(c)(1)). Consistent with the determination made for other 
CO2 supply data elements reported under subpart PP, EPA has 
determined that this new data element is eligible for confidential 
treatment when reported by industrial CO2 production 
facilities, but not entitled to confidential treatment when reported by 
CO2 production wells. As explained below in the response to 
comments on this data category, although CO2 supply data is 
generally available for CO2 production wells, we have found 
no public sources of such data for industrial CO2 production 
facilities. Furthermore, some commenters stated that CO2 
supply data for industrial CO2 production facilities would 
be likely to cause competitive harm if disclosed to the public because 
information documenting the amount of

[[Page 30808]]

CO2 collected and transferred off site would provide 
competitors with sensitive information that may be used to determine a 
reporter's market share and to gain insight into a reporter's ability 
to meet increases in market demand. The final determinations for this 
data category are summarized in Table 4 of this preamble.
    Comment on Suppliers of CO2 (Subpart PP): Some commenters believe 
that the amount of CO2 collected at facilities for transfer 
off site (reported under subpart PP) should be held confidential for 
industrial production facilities such as ammonia manufacturing plants. 
These commenters stated that this information does not meet the 
definition of emission data; is not already publicly available; and can 
be combined with other information, such as emissions data reported for 
the associated combustion units, to estimate plant performance, which 
would cause competitive harm. We also received comments that the amount 
of CO2 imported or exported (also reported under subpart PP) 
does not meet the definition of emission data, is not already publicly, 
and should be protected as CBI as the release of this data could cause 
competitive harm.
    Response: We agree with commenters who recommended that the data 
elements describing the amount of CO2 supplied reported by 
industrial facilities (e.g., ammonia and lime manufacturing plants) and 
by importers and exporters under subpart PP are CBI. We agree that, for 
suppliers, the amount of CO2 collected by production 
facilities and transferred off site and the amount of CO2 
imported or exported does not meet the definition of emission data in 
40 CFR 2.301(a)(2)(i), because the CO2 is not emitted at the 
reporter's facility. We previously proposed that this data element 
would be non-CBI for all CO2 suppliers because we had 
identified sources of CO2 supply data. However, we have 
since determined that although facility-level CO2 supply 
data is generally available for CO2 production wells, such 
data for industrial CO2 production facilities is not 
publicly available. Likewise, the amount of CO2 supplied is 
generally not available for importers and exporters. We therefore agree 
with the commenters that the amount of CO2 collected by 
production facilities and transferred off site and the amount of 
CO2 imported/exported are not already available to the 
public. Based on the information provided by the commenters, we also 
agree that for industrial sources and for importers/exporters the 
information would be likely to cause competitive harm. For industrial 
sources, we agree with commenters who argued that the availability of 
information documenting the amount of CO2 collected and 
transferred off site would provide competitors with sensitive 
information that may be used to determine a reporter's market share and 
to gain insight into a reporter's ability to meet increases in market 
demand. For CO2 importers and exporters, the data would 
provide competitors with information on market share, which could be 
used to devise marketing strategies that undermine or weaken a 
competitor's position. For the reasons stated above, we have determined 
the total CO2 supplied as reported under subpart PP would be 
CBI when reported by industrial CO2 production facilities 
(e.g., ammonia production facilities that collect CO2 for 
transfer off site), non-CBI when reported by CO2 production 
wells, and CBI when reported by importers and exporters.
    Comment on Suppliers of Coal-Based Liquid Fuels (Subpart LL) and 
Suppliers of Petroleum Products (Subpart MM): Some commenters 
recommended that total facility-level CO2 and total importer 
level CO2 from subparts LL and MM should be eligible for 
confidential treatment. EPA had proposed that importer data for 
subparts LL and MM would not be eligible for confidential treatment 
because importer data is already publicly available from the U.S. 
Energy Information Administration (EIA). One commenter disagreed with 
EPA and stated that data reported by importers under subparts LL and MM 
is not publicly available through EIA. This commenter stated that EPA's 
definitions of petroleum products and miscellaneous products differ 
from those used by the EIA and that these differences in reporting 
requirements would result in some supplier data being available to the 
public for the first time. Another commenter recommended that the 
amount of CO2 reported, quantities of product, and other 
information for imported products be held confidential. This commenter 
agreed that imports are routinely reported to EIA, but stated that the 
company that reports the data to the EIA may be a company that is under 
contract with the end-user (e.g., a broker relationship). As a result, 
the importer under Part 98 and the importer under EIA could be 
different entities. The commenter argued that, in these circumstances, 
the amount and composition of material imported by the part98 reporter 
would not already be publicly available.
    Response: EPA has reviewed the comments on the proposed 
determinations for data elements reported by importers of coal-based 
liquids and petroleum products under subparts LL and MM (40 CFR 
98.386(b)(7) and (b)(8); and 40 CFR 98.396(b)(7) and (b)(8)). We 
previously proposed a non-CBI status for these data elements because we 
believed the data elements were available to the public through EIA. 
Although we recognized that there are some differences in the products 
reported under Part 98 and EIA reporting program, we previously 
considered the differences to be minor and unlikely to reveal sensitive 
information. However, we agree with the commenter that EPA's 
definitions of petroleum products and miscellaneous products differ 
from those used by the EIA and that in some instances these differences 
may reveal information about the characteristics of an imported product 
that is not available through EIA. We also agree that this information 
would cause competitive harm in some situations (e.g., where the 
importer uses the imported product as a raw material for their 
manufacturing process, the amount and characteristics of the raw 
material provide competitors with sensitive information on the 
manufacturing process, production costs, and efficiencies). However, we 
also note that the extent to which these Part 98 data elements reveal 
competitively harmful information would depend on the type of product 
imported because some of the Part 98 product definitions are identical 
to or sufficiently similar to those used by EIA (e.g., the Part 98 
definition of ethane is identical to that of EIA). We were not aware at 
the time of the proposal that some importers subject to Part 98 are not 
required to report their imports to the EIA and that the data is 
instead reported by brokers and published by EIA using the brokerage's 
name rather than the name of the company who ultimately instigated and 
received the imported products. Therefore, EPA agrees with the 
commenters that, in some limited cases, different entities may be 
required to report import data under 40 CFR part 98, subparts LL and MM 
and under the EIA reporting program. In such instances, we agree that 
the EIA data does not reveal the identity of the company reporting 
import data under Part 98 and therefore, we conclude that in these 
limited situations the data is not publicly available because it cannot 
be associated with Part 98 reporter. Since the circumstances vary for 
each reporter with regard to whether the data reported under Part 98 is 
available through EIA, EPA has decided not to make a confidentiality 
determination at this

[[Page 30809]]

time that would apply to all importers of coal-based liquids and 
petroleum products. Therefore, EPA is not finalizing confidentiality 
determinations in this action for data on the amount of CO2 
supplied reported by importers of Coal-Based Liquids and Petroleum 
Products (40 CFR 98.386(b)(7) and (b)(8); and 40 CFR 98.396(b)(7) and 
(b)(8)).
    Comment on Facility-level CO2e: Most commenters agreed 
with EPA's proposal that the total combined supplier-level 
CO2e for subparts LL through PP and the total amount of GHGs 
reported for the specific subpart should be publicly available, while 
CO2e reported for individual products under subparts LL 
through OO should be held confidential unless the data is already 
publicly available. However, some commenters were concerned that the 
combined supplier-level CO2e reported for subparts LL 
through PP could provide information on the amount of product produced 
where the reporters produce only one product. Similarly, some 
commenters recommended that the importer/exporter-level CO2e 
for subparts LL through PP should be held confidential for reporters 
who import and/or export only one product. These commenters stated that 
the actual pounds or tons of the specific product produced, imported, 
or exported could be easily discerned from the reported CO2e 
data. Several commenters stated that competitors could use these data 
to gain insight into marketing strengths and weaknesses and thereby 
gain a competitive advantage over reporting entities. Some commenters 
noted that to be consistent with the proposal to treat product-specific 
production throughput in the Production/Throughput Quantities and 
Composition Category as CBI, EPA should also determine that supplier-
level CO2e data are CBI for facilities and importers/
exporters with a single product. Some commenters recommended that the 
supplier-level CO2e data be held as confidential in cases in 
which a reporter produces or imports/exports only a few products or in 
which facilities produce large amounts of one product and smaller 
amounts of other products.
    Response: Although there are likely to be very few reporters that 
supply only one product, EPA agrees with commenters that the total 
combined supplier-level CO2e for subparts LL through PP and 
the total quantity of each GHG supplied qualify as CBI if the reporter 
supplies only one of the products listed in subparts LL through PP and 
if EPA determined that the production, import, export or supply rate 
for that product is CBI (see Table 4 of this preamble for the list of 
production/throughput data elements determined to be CBI and Section 
II.D.3 of the July 7, 2010 CBI preamble for the rationale). In such 
instances, we agree with the commenters that the supplier level 
CO2e information may be used to calculate certain production 
and import/export data that we have determined to be CBI. Therefore, 
although we had proposed a non-CBI status for the following data 
elements, we have determined in this final action that they qualify as 
CBI under the following conditions for the reasons stated above:
     The total combined supplier level CO2e (40 CFR 
98.3(c)(5)(i)) is confidential if the reporter produces, imports, 
exports or otherwise supplies just one product and if EPA has 
determined that the amount of that one product produced, imported, 
exported or otherwise supplied is CBI.
     The quantity of each GHG (40 CFR 98.3(c)(5)(ii) is 
confidential if the reporter produces, imports, exports or otherwise 
supplies just one product and if EPA has determined that the amount of 
that one product produced, imported, exported or otherwise supplied is 
CBI.
    We disagree with commenters who recommended that facility-level and 
importer/exporter-level CO2e data should be held 
confidential for facilities that supply two or more products. We do not 
believe, nor did we receive any information indicating, that where a 
facility supplies multiple products, competitors would be able to 
estimate with any degree of certainty the quantities of a specific 
product produced, imported, or exported using the facility-level or 
importer/exporter-level CO2e data. Therefore, we concluded 
that our proposed non-CBI determination for suppliers who supply two or 
more products is appropriate and finalize that determination in this 
action (see Table 4 of this preamble for the final confidentiality 
determinations for the Greenhouse Gases Reported).

                         Table 4--Final CBI Determination for Greenhouse Gases Reported
----------------------------------------------------------------------------------------------------------------
    Source category (Part 98 subpart)              Data elements                    Are these data CBI?
----------------------------------------------------------------------------------------------------------------
General Provisions (Subpart A)...........  Total facility-level CO2e      No. \b\
                                            from subparts LL-PP \a\.
Suppliers of Coal-Based Liquid Fuels and   Facility-level CO2 from each   No. \b\
 Petroleum Products (subparts LL and MM):   subpart \c\.                  Yes.
 Producers.                                Product-specific CO2.........
Suppliers of Coal-Based Liquids and        Exporter level CO2 from each   No\b\.
 Petroleum Products (subparts LL and MM):   subpart \c\.
 Exporters.
                                           Product-specific CO2.........  Yes.
Suppliers of Natural Gas and NGLs          LDC-level CO2 from subpart     No.
 (subpart NN): Local Distribution           NN\c\; Product-specific CO2
 Companies (LDCs).
Suppliers of Natural Gas and NGLs          Facility-level CO2 from        No\b\.
 (subpart NN): Fractionators.               subpart NN\c\.
                                           Product-specific CO2.........  Yes.
Suppliers of Industrial GHGs (subpart      Facility-level GHG             Yes.
 OO): Producers.                            quantities, by gas, from
                                            subpart OO\c\; Product-
                                            specific GHG quantities.
Suppliers of Industrial GHGs (subpart      Importer/exporter level GHG,   Yes.
 OO): Importers and Exporters.              by gas, from subpart OO\c\;
                                            Product-specific GHG
                                            quantities.
Suppliers of CO2 (subpart PP): Production  Facility-level CO2 for         No.
 Wells.                                     subpart PP\c\.
Suppliers of CO2 (subpart PP): Industrial  Facility-level CO2 for         Yes.
 Production Facilities.                     subpart PP\c\.
Suppliers of CO2 (subpart PP): Importers   Importer/Exporter-level CO2    Yes.
 and Exporters.                             for subpart PP\c\.
----------------------------------------------------------------------------------------------------------------
\a\ This data element, reported under 40 CFR part 98, subpart A, represents the aggregation of CO2e from all
  supplier source categories. For example, if a refinery supplies petrochemical products (40 CFR part 98,
  subpart MM) and is also a CO2 supplier (40 CFR part 98, subpart PP) the facility-level CO2e would represent
  the CO2e for both activities combined.
\b\ This data element is confidential if the reporter produces, imports, exports or otherwise supplies just one
  product and if EPA has determined that the amount of that one product produced, imported, exported or
  otherwise supplied is CBI.
\c\ This data element, reported under 40 CFR part 98, subpart A, represents an aggregation of CO2 (by source
  category) from multiple individual products the reporter supplies.


[[Page 30810]]

4. Production/Throughput Quantities and Composition Category
    New Data Elements: EPA has added two new data elements to this data 
category:
     The total annual CO2 mass through main flow 
meter(s) in metric tons (40 CFR 98.426(c)(2)(i)).
     The total annual CO2 mass through subsequent 
flow meter(s) in metric tons (40 CFR 98.426(c)(2)(ii).
    These new data elements were added by the amendments published on 
December 17, 2010 (75 FR 79092) and were not included in the July 2010 
CBI proposals. These data elements, which require reporters subject to 
subpart PP to provide CO2 throughput data for individual 
flow meters located at the plant, are the same type of data as other 
data elements already assigned to this data category (e.g., the annual 
mass for each mass flow meter reported by facilities using Equation PP-
1 (40 CFR 98.426(a)(1)). Consistent with the determination made for 
other meter-level CO2 data in this category, EPA has 
determined that these two new data elements are eligible for 
confidential treatment when reported by industrial CO2 
production facilities, but not entitled to confidential treatment when 
reported by production wells. As discussed in Section II.C.3 of this 
preamble, although facility-level CO2 supply data is 
generally available for CO2 production wells, we have found 
no public sources of such data for industrial CO2 production 
facilities. Furthermore, some commenters stated that CO2 
supply data for industrial production facilities would be likely to 
cause competitive harm if disclosed to the public because information 
documenting the amount of CO2 collected and transferred off 
site would provide competitors with sensitive information that may be 
used to determine a reporter's market share and to gain insight into a 
reporter's ability to meet increases in market demand. Since the 
facility-level CO2 data can be discerned from the meter-
level CO2 data reported for the two new data elements, we 
have concluded that these data elements are CBI when reported by 
industrial suppliers of CO2 and non-CBI when reported by 
CO2 production wells.
    Comment: In the July 7, 2010 CBI proposal, EPA proposed that most 
data elements in the Production/Throughput and Composition Category 
would be entitled to confidential treatment, except for the following: 
(1) Facility-level and importer/exporter-level data for suppliers of 
CO2, (2) data reported by natural gas LDCs, and (3) data 
reported by importers of petroleum products. Most commenters agreed 
with our proposed confidentiality determinations and with our rationale 
that facility-level data on the annual quantities and types of natural 
gas liquids, petroleum products, and industrial GHGs produced by 
facilities would cause competitive harm if disclosed to the public.
    A number of commenters agreed with the determination that the data 
reported under subpart OO should be held confidential. One commenter 
stated that disclosure of subpart OO data reported by exporters would 
often disclose data on production facilities because some production 
facilities export all or nearly all of their products. Others agreed 
that product composition data reported under subpart OO is sensitive 
information that would harm the competitive position of U.S. companies. 
However, other commenters disagreed, stating that the composition of 
products reported under 40 CFR part 98, subpart OO should be disclosed 
because of the high global warming potentials of these products.
    Some commenters believe that the mass of CO2 transferred 
off site (reported under 40 CFR part 98, subpart PP) should be held 
confidential for industrial production facilities such as ammonia 
manufacturing plants and for CO2 importers and exporters. As 
discussed in Section II.C.3 of this preamble for related data elements, 
commenters stated that data on the amount of CO2 supplied is 
not already publicly available for industrial CO2 production 
facilities and CO2 importers and exporters and would likely 
cause competitive harm if disclosed to the public.
    Several commenters disagreed with our proposed determinations for 
data on the quantities and types of natural gas liquids and petroleum 
products imported into the U.S. (reported under subparts LL and MM) and 
recommended that this data be held confidential. As discussed in 
Section II.C.3 of this preamble for related data elements, some 
commenters argued that the amount and type of product imported is not 
publicly available from EIA for importers that use a broker, because 
the broker reports the import data to EIA under the broker's name. They 
also stated that the Part 98 product definitions differed from those of 
EIA and that these differences could reveal information not available 
through EIA. They also noted that disclosure of the amount and quantity 
of imported material could cause competitive harm to importers because 
it would reveal the type and rate of consumption of raw materials at 
their production facilities which could be used to discern sensitive 
process information (e.g., production efficiency).
    Response: The final determinations for this data category are 
summarized in Table 5 of this preamble. Except as described below, we 
have finalized the confidentiality determinations as proposed in the 
July 2010 CBI proposals.

  Table 5--Final Confidentiality Determination for Supplier Production/
               Throughput Quantities and Composition Data
------------------------------------------------------------------------
    Source category (Part 98                          Are these data CBI
            Subpart)                 Data elements        \a\  (Y/N)?
------------------------------------------------------------------------
Suppliers of Coal-Based Liquid    Facility level, by  Yes.
 Fuels and Petroleum Products      product.
 (Subparts LL and MM): Producers.
Suppliers of Coal-Based Liquids   Exporter level, by  Yes.
 and Petroleum Products            product.
 (Subparts LL and MM): Exporters.
Suppliers of Natural Gas and      LDC level.........  No.
 NGLs (Subpart NN): LDCs.
Suppliers of Natural Gas and      NGL Fractionator    Yes.
 NGLs (Subpart NN):                level.
 Fractionators.
Suppliers of industrial GHGs      Facility level, by  Yes.
 (Subpart OO): Producers.          fluorinated GHG.   Yes.
                                  Facility level
                                   throughput \b\
                                   information, by
                                   process.
Suppliers of industrial GHGs      Importer and        Yes.
 (Subpart OO): Importers and       exporter level,
 exporters.                        by fluorinated
                                   GHG.
Suppliers of CO2 (Subpart PP):    Facility-level      No.
 Production wells.                 total CO2
                                   production.
                                  CO2 mass or volume  No.
                                   measured by flow
                                   meter.

[[Page 30811]]

 
                                  Facility level      No.
                                   annually
                                   aggregated
                                   production
                                   information, by
                                   end use
                                   application.
Suppliers of CO2 (Subpart PP):    Facility-level      Yes.
 Industrial production             total CO2          Yes.
 facilities.                       production.
                                  CO2 mass or volume
                                   measured by flow
                                   meter.
                                  Facility level      Yes.
                                   annually
                                   aggregated
                                   production
                                   information, by
                                   end use
                                   application.
Suppliers of CO2(PP): Importers   Importer and        Yes.
 and exporters.                    exporter level
                                   total CO2
                                   imported/exported.
                                  CO2 mass or volume  Yes.
                                   measured by flow
                                   meter, scales and
                                   weigh bills.
                                  Importer and        Yes.
                                   exporter level
                                   annually
                                   aggregated
                                   production
                                   information, by
                                   end use
                                   application.
------------------------------------------------------------------------
\a\ Production/throughput data are reported by product.
\b\ Throughput information includes the total mass of the reactants, by-
  products, and wastes permanently removed from each fluorinated GHG or
  nitrous oxide production process.

    EPA has determined that the meter-level CO2 data and the 
amount of CO2 supplied to each of the 13 types of end-users 
(reported under 40 CFR 98.426(f)), is CBI for industrial suppliers of 
CO2 and for CO2 importers and exporters. As 
discussed in Section II.C.3 of this preamble, we previously proposed 
that these data elements would be non-CBI for all CO2 
producers because we had identified sources CO2 supply data. 
However, we have since determined that although CO2 supply 
data are generally available for CO2 production wells, such 
data for industrial CO2 production facilities and for 
CO2 importers and exporters is not publicly available. We 
therefore agree with the commenter that these data are not already 
available to the public. The meter-level CO2 data and the 
amount of CO2 supplied to each of the 13 types of end-users 
can be used to calculate the facility-level CO2 supply data 
for industrial sources. Information documenting the amount of 
CO2 collected and transferred off site, including the data 
elements at issue, provides competitors with sensitive information that 
may be used to determine a facility's market share and to gain insight 
into a facility's ability to meet increases in market demand.
    EPA is not making a final confidentiality determination for data 
elements that describe the amount and type of coal-based liquids and 
petroleum products reported by importers (subparts LL and MM). As 
discussed in Section II.C.3 of this preamble, EPA was not able to make 
a determination at this time that would apply to all importers of coal-
based liquids and petroleum products because the determination would 
vary depending on importer-specific characteristics (e.g., whether the 
report to EIA, what type(s) of products they import). For the detailed 
discussion of the rationale for this decision, see EPA's response in 
Section II.C.3 of this preamble related to Suppliers of Coal-Based 
Liquid Fuels and Suppliers of Petroleum Products (Subpart LL and 
Subpart MM).
5. Identification Information Category
    Comment: Some commenters agreed with EPA's proposed determination 
that the data in this category do not qualify for confidential 
treatment. However, a few commenters disagreed with our proposal. 
Commenters were concerned that disclosure of certain data elements in 
this category, particularly the company name and address, would enable 
competitors to determine the quantity and type of materials imported/
exported by a particular company. Another commenter stated that the 
competitive position of businesses would be harmed if the name and 
address of U.S. parent companies and their percentage of ownership 
interest is made publically available. These commenters argued that 
this information could be used together with other data to determine 
market share and other competitive information.
    Response: We disagree with those commenters who believe the 
disclosure of the data in this category would likely cause competitive 
harm to suppliers. We are not aware of any situations, nor did the 
commenters provide any examples, in which the name, address, and U.S. 
parent company of an importer or exporter has been or could be linked 
with other available data to disclose sensitive business information. 
Further, reporters eligible to hold confidential the quantities and 
compositions of imported materials (such as those reporters importing 
fluorinated GHGs under 40 CFR part 98, subpart OO) may submit manifest 
confidentiality requests to the U.S. Customs and Border Protection 
(CBP) to protect as confidential its name and address on customs forms. 
Therefore, competitors would not be able to link customs data on the 
quantity and type of material imported with the name and address of the 
Part 98 reporter. For the reasons stated above, we conclude that our 
proposed non-CBI determination for this data category is appropriate.
6. Unit/Process Operating Characteristics Category
    New Data Elements: EPA has added one new data element to this data 
category for suppliers subject to subpart PP. This data element 
requires production facilities to report the location of each flow 
meter in relation to the point of segregation (reported under 40 CFR 
98.426(c)(2)(iv)). The data element was added by the amendments 
published on December 17, 2010 (75 FR 79092) and was not included in 
the July 2010 CBI proposals. This data element is exactly the same type 
of location information as required by other data elements already 
assigned to this data category (e.g., the location of each volumetric 
flow meter in the process chain in relation to the points of 
CO2 stream capture, dehydration, compression, and other 
processing reported under 40 CFR 98.426(b)(7)). In the CBI proposal, we 
explained that disclosure of such location information is not likely to 
cause competitive harm to the reporting facilities because it does not 
provide descriptions or diagrams on the design or operation of a 
facility's production process or reveal any other potentially sensitive 
information about any facility. Therefore, we have determined in this 
final action that the data elements in the Unit/Process Operating 
Characteristics category relative to location information,

[[Page 30812]]

including this new data element, are not CBI.
    Comment: For this data category, EPA proposed that only one data 
element (the estimated percent transformation efficiency reported under 
40 CFR part 98, subpart OO for fluorinated production process) would be 
eligible for confidential treatment. Many commenters agreed that most 
data in this category do not qualify for confidential treatment. 
Several commenters also supported EPA's proposed determination that the 
estimated percent transformation efficiency of each production process 
for the fluorinated GHG produced under 40 CFR part 98, subpart OO is 
CBI.
    Other commenters disagreed with our proposal and recommended that 
all unit/process operating characteristics should be considered CBI. 
Most of these commenters provided broad statements that operating data 
provides competitors with sensitive business information, but did not 
identify which specific data elements or explain how their disclosure 
would cause competitive harm to reporters. However, a few commenters 
provided more detailed rationales regarding specific data elements. One 
commenter believes the subpart OO data element concerning the date on 
which a change to a fluorinated GHG product occurs should be kept 
confidential because the dates would indicate to competitors that the 
reporter was making changes to their product. Another commenter 
believes the dates on which fluorinated GHGs are imported and/or 
exported and the port of entry and port of export should be entitled to 
confidential treatment because this information could be used in 
conjunction with customs records to identify the amount of material 
imported/exported by the reporter. This commenter added that to protect 
confidential and competitively sensitive information, importers and 
exporters can submit manifest confidentiality requests to U.S. CBP. 
According to the commenter, CBP allows importers and exporters to claim 
their names and addresses as confidential but not information on the 
material imported/exported, the port, or the date. This commenter 
argued that disclosure of such import/export data would place 
businesses required to report under Part 98 at a significant 
competitive risk and argued that information on the date and port of 
import/export could be used by competitors (both domestic and 
international) to discern import and export practices, and potentially 
shipment data.
    One commenter stated that certain information submitted as part of 
BAMM extension requests was sensitive information requiring 
confidential treatment. This commenter specifically identified the 
following data elements from BAMM extension requests as confidential: 
The reason for the extension request (40 CFR 98.3(d)(2)(ii)(C)) and the 
planned installation date of monitoring equipment (40 CFR 
98.3(d)(2)(ii)(F)). This commenter stated that this information is not 
available from other public sources and, if disclosed, would cause 
competitive harm by enabling competitors to determine a company's 
ability to capitalize on specific market opportunities and allowing 
competitors to target markets based on weaknesses and vulnerabilities. 
They further noted that information on future shutdowns would allow 
competitors to increase production during a reporter's shutdown and 
would likely cause serious harm to the reporter's competitive position.
    Response: Except as described below, we have finalized the proposed 
confidentiality determinations for the data elements in this category. 
In response to comments received, we have determined that the following 
data elements in this data category are CBI:
     Dates of import/export (40 CFR part 98, subpart OO).
     Ports of import/export (40 CFR part 98, subpart OO).
     The reason for submitting a BAMM extension request (40 CFR 
part 98, subpart A).
     The reason why equipment was not or could not be obtained 
or installed during a planned shutdown between October 30, 2009 and 
April 1, 2010 (as reported in a BAMM extension request (40 CFR part 98, 
subpart A).
     Planned installation date for monitoring equipment as 
reported in a BAMM extension request (40 CFR 98.3(d)(2)(ii)(F))).
     Anticipated date on which facility will begin using the 
full monitoring methods in the rule (40 CFR 98.3(d)(2)(ii)(F)).
    At the time of the July 10 CBI proposals, we were not aware of any 
potential competitive harm that would likely result from the disclosure 
of the dates on which fluorinated GHGs are imported and/or exported and 
the port of entry and export (reported under 40 CFR part 98, subpart 
OO). Since then, we have learned that release of these data elements to 
the public could allow competitors to link customs records on 
quantities and product composition with the import and export data 
reported under Part 98, thus allowing competitors to determine market 
share and devise marketing strategies to undermine or weaken a 
competitor's position. Because disclosure of these data elements is 
likely to cause the substantial harm described above to suppliers 
reporting these data under Part 98, we have determined in this final 
action that these data elements qualify as CBI.
    EPA agrees with commenters who recommended that certain data 
elements submitted as part of BAMM extension requests are eligible for 
confidential treatment. At the time of proposal, we believed the reason 
for requesting a BAMM extension (reported under 40 CFR 
98.3(d)(2)(ii)(C)) and the reason why equipment was not (or could not 
be) installed (reported under 40 CFR 98.3(d)(2)(ii)(E)) would be 
generic information that would not reveal any sensitive operating 
information. However, since proposal EPA has reviewed a number of BAMM 
extension requests and determined that they contain more detailed 
information, such as process diagrams and operational information, than 
we had previously anticipated. We also note that many facilities have 
claimed these data as CBI because they provide insight into facility-
specific operating conditions or process design that are not available 
from other sources and would harm their competitive position if 
released.
    We also agree with those commenters that stated that the planned 
installation date and the date of anticipated startup (reported under 
40 CFR 98.3(d)(2)(ii)(F)) provides competitive information regarding 
future process shutdowns. Based on new information received in 
comments, we have concluded that these data elements could provide 
information about the operation of a facility that can be used by 
competitors to anticipate and potentially benefit from future decreases 
in product supply. For example, a competitor could increase its own 
market share by increasing production or increase its profits by 
increasing prices during these periods. Based on this new information, 
EPA has determined that these data elements qualify as CBI.
    Although some commenters claimed that the data element concerning 
the date on which a change to a fluorinated GHG product occurs (40 CFR 
98.416(f)) should be confidential, they did not provide rationale or 
supporting information that enable us to assess their claim. Because we 
are not aware of any situations under which public disclosure of this 
data element is likely to cause substantial harm to suppliers reporting 
these data elements, our position regarding this data element remains 
unchanged in this final action.

[[Page 30813]]

7. Calculation, Test, and Calibration Methods Category
    Comment: We received several comments agreeing with EPA that 
disclosing the calculation, test, and calibration methods would be 
unlikely to reveal proprietary business information. No commenters 
disagreed with our proposed determination that the data elements in 
this category are not CBI.
    Response: We appreciate the commenters' support of our proposed 
non-CBI determination for this data category. In light of these 
comments, we conclude that our proposed non-CBI determination for this 
data category (as described in 75 FR 39126, July 7, 2010) is 
appropriate and finalize that determination in this action.
8. Data Elements for Periods of Missing Data That Are Not Related to 
Production/Throughput
    Comment: We received comments supporting EPA's proposed 
determination that the data in this data category are not CBI. No 
commenters opposed our proposed determination that the data in this 
category are not CBI.
    Response: We appreciate the commenters' support of our proposed 
determination for this data category. In light of these comments, we 
conclude that our proposed non-CBI determination for this data category 
(as described in 75 FR 39128, July 7, 2010) is appropriate and finalize 
that determination in this action.
9. Emission Factor Category
    Comment: Several commenters agreed with EPA's proposed 
determination that the data in this data category qualify for 
confidential treatment. These commenters agreed with EPA's proposed 
determination that disclosure of this data would substantially harm the 
competitive position of suppliers and therefore it should be kept 
confidential. Other commenters disagreed with EPA's proposed CBI 
determination, arguing that most of the Part 98 supplier data should be 
considered non-CBI. However, these commenters did not provide any 
specific rationale or information explaining why any data element in 
this data category should be considered non-CBI, but instead provided 
only general statements that making data available to the public was 
consistent with the CAA and that it was the purpose of the GHGRP to 
make GHG emissions data available to the public.
    Response: Although some commenters disagreed with EPA's proposed 
determination that the data elements in this data category qualify for 
confidential treatment, they did not provide any rationale or 
information for us to evaluate whether the proposed CBI determination 
may not be appropriate for any data elements in this data category. 
Specifically, the commenters did not provide any information to support 
why data in this particular category would meet the definition of 
emission data. Neither did the commenter explain why any data element 
in this category does not qualify as CBI. For instance, the commenter 
did not claim that any data element in this category is already 
publicly available or disagree with EPA's assessment that disclosure of 
these data elements would likely cause competitive harm. Further, the 
commenters who supported our proposed determination explained that the 
information is held confidential by companies and that disclosure would 
cause substantial harm to the competitive position. The commenters who 
supported our proposed determination agreed with EPA's rationale 
described in Section II.D.8 of the July 7, 2010 CBI proposal that 
emission factors can be used to back-calculate the carbon share of the 
supplier's products and raw materials. In light of the above, we 
conclude that our proposed determination for this data category is 
appropriate and finalize the determination in this action.
10. Amount and Composition of Materials Received Category
    New Data Elements:
    EPA has added the following six new data elements to this data 
category:
     EIA crude stream code (40 CFR 98.396(a)(20)(v)).
     Crude stream name (40 CFR 98.396(a)(20)(v)).
     Generic name for crude stream (40 CFR 98.396(a)(20)(vi)).
     EIA two-letter country or state production area code for 
batch (40 CFR 98.396(a)(20)(vi)).
     Volume of crude oil in barrels injected into a crude oil 
supply or reservoir (40 CFR 98.396(a)(22)).
     Indication of whether the material is a blended non-crude 
feedstock or blended product (40 CFR 98.396(d)(1)(iii)).
    The data elements were added by the amendments published on October 
28, 2010 (75 FR 66434) and were not included in the July 2010 CBI 
proposals. The data elements require the reporting of information about 
the composition and type of raw materials used by facilities that 
produce products listed in subpart MM. They are the same type of data 
as other data elements already included in this data category in the 
CBI proposals. For example, 40 CFR 98.396(a)(20)(vi) is the same type 
of data as 40 CFR 98.396(a)(20)(iv), which requires the country of 
origin the crude oil batch to be reported, and 40 CFR 98.396(a)(22) is 
the same type of data as 40 CFR 98.406(a)(2), which requires the 
quantity of ethane product received by natural gas fractionators. In 
the July 2010 CBI proposals, we explained that disclosure of the data 
elements in this category would likely cause substantial competitive 
harm to the reporting facilities. For example, we explained how 
information about a reporter's raw material source could be used to 
discern design or operating limitations (e.g., show that a facility 
only processes certain types of crude oil) or could be used to develop 
competitive strategies to increase the cost of certain types of raw 
materials. In other cases, the amount of raw material consumed can be 
used in combination with production data to infer the operating 
efficiency (e.g., amount of product produced per unit of raw material 
consumed), which would allow competitors to infer production costs and 
pricing structures (see 75 FR 39127, July 7, 2010). Because the CBI 
proposal included data elements that are the same in type and 
characteristic as the six new data elements, we conclude that the 
proposal adequately addresses these six data elements and that a 
separate CBI proposal for these data elements is not necessary. For the 
reasons set forth in this section and in Section II.C.9 of the July 7, 
2010 CBI proposal, we have determined in this final action that the 
data elements in this data category qualify as CBI. This determination 
applies to all the data elements in this category, including the six 
new data elements listed above.
    Comment: Most commenters agreed with EPA's proposed determination 
that the amount and composition of materials received by suppliers 
qualify for confidential treatment. These commenters agreed that, if 
released, the amount and composition of materials received by suppliers 
would likely cause substantial harm to the competitive positions of 
businesses reporting these data because it would reveal sensitive 
information about the manufacturing process or the composition of the 
product. Although most commenters supported EPA's proposed CBI 
determination for this category, some commenters disagreed. These 
commenters argued that all or most Part 98 data elements should be made 
available to the public. These commenters did not provide any

[[Page 30814]]

information explaining why any specific data element in this data 
category should be considered emission or otherwise non-CBI, but 
instead submitted general statements that disclosure of these data 
would be consistent with the CAA and the GHGRP.
    Response: Although some commenters disagreed with EPA's proposed 
determination that the data elements in this data category qualify for 
confidential treatment, they did not provide any rationale or 
information for us to evaluate whether the proposed CBI determination 
may not be appropriate for any data elements in this data category. 
Specifically, the commenters did not provide any information to support 
why data in this particular category would meet the definition of 
emission data. Neither did the commenter explain why any data element 
in this category does not qualify as CBI. For instance, the commenters 
did not claim that any data element in this category is already 
publicly available, nor did they disagree with EPA's assessment that 
disclosure of these data elements would likely cause competitive harm. 
The commenters who supported our proposed determination agreed with 
EPA's rationale described in Section II.D.9 of the July 2010 CBI 
proposal that disclosure of data elements in this category is likely to 
cause substantial harm to reporters. In light of the above, we conclude 
that our proposed determination for this data category is appropriate 
and are finalizing the determination in this action.
11. Data Elements for Periods of Missing Data That Are Related to 
Production/Throughput
    Comment: Several commenters agreed with EPA's proposed 
determination that the data in this data category qualify for 
confidential treatment. These commenters expressed agreement with EPA's 
proposed determination that disclosure of this data would substantially 
harm the competitive position of suppliers and therefore should be kept 
confidential.
    Although most commenters supported EPA's proposed CBI determination 
for this category, some commenters disagreed. These commenters argued 
that all or most Part 98 data elements should be made available to the 
public. These commenters did not provide any rationale explaining why 
any specific data element in this data category should be considered 
emission data or otherwise non-CBI, but instead submitted general 
statements that disclosure of these data would be consistent with the 
CAA and the GHGRP.
    Response: Although some commenters disagreed with EPA's proposed 
determination that the data elements in this data category qualify for 
confidential treatment, they did not provide any rationale or 
information for us to evaluate whether our proposed determination is 
not appropriate for any data elements in this data category. 
Specifically, the commenters did not provide any information to support 
why data in this particular category would meet the definition of 
emission data. Neither did the commenter explain why any data element 
in this category does not qualify as CBI. For instance, the commenters 
did not claim that any data element in this category is already 
publicly available, nor did they disagree with EPA's assessment that 
disclosure of these data elements would likely cause competitive harm. 
Further, the commenters who supported our proposed determination agreed 
with EPA's rationale described in Section II.D.10 of the July 2010 CBI 
proposal that the data elements in this category are themselves 
production data and materials received data for the missing data period 
and their disclosure could divulge sensitive details about operational 
capabilities, marketing strategies, market share, and product 
chemistries. We therefore conclude that our proposed determination for 
this data category is appropriate and finalize the determination in 
this action.
12. Supplier Customer and Vendor Information Category
    Comment: Several commenters agreed with EPA's proposed 
determination that the data elements in this category qualify for 
confidential treatment. Some stated that the data was not publicly 
available and that they take steps to ensure the information is 
maintained as confidential. Several agreed with EPA's proposed 
determination that disclosure of these data elements would 
substantially harm the competitive position of suppliers. One stated 
that customers and vendors often require such data to be kept 
confidential and that in some cases this requirement is included in 
legal contracts, such as agreements for purchase or supply. Others 
stated that the identity of a vendor is proprietary information since 
it would allow competitors to determine customer base and identify 
large customers.
    Although most commenters supported EPA's proposed CBI determination 
for this category, some commenters disagreed. These commenters argued 
that all or most of the Part 98 data should be considered non-CBI. 
These commenters did not provide any specific rationale regarding the 
data elements in this category, but instead submitted general 
statements that disclosure of these data would be consistent with the 
CAA and the GHGRP.
    Response: Although a few commenters disagree with EPA's proposed 
determination that the data elements in this category are eligible for 
confidential treatment, they did not provide any rationale or 
information for us to evaluate why any data element in this category 
should be considered non-CBI. Specifically, they did not provide any 
information to support why data in this particular category would meet 
the definition of emission data. The commenters did not claim that any 
data element in this category is already publicly available, nor did 
they disagree with EPA's assessment that disclosure of these data 
elements would likely cause competitive harm. Furthermore, commenters 
who supported our proposed determination explained that the information 
is held confidential by companies and that disclosure would cause 
substantial harm to the competitive position of their company by 
revealing information about customer base and in some cases the 
identity of individual customers, which would enable competitors to 
develop marketing strategies designed to steal these customers. We 
therefore conclude that our proposed determination for this data 
category is appropriate and finalize the determination in this action.
13. Process-Specific and Vendor Data Submitted in BAMM Extension 
Requests Category
    Comment: Only a few commenters submitted comments on this data 
category. The majority of those providing comments agreed with EPA's 
proposed determination that disclosure of the data in this category 
would substantially harm the competitive position of reporters and that 
the data in this category therefore qualify for confidential treatment 
under 40 CFR 2.208. Some of these commenters also confirmed that they 
take measures to keep the data secret and that the information is not 
available from other sources.
    Although some commenters supported EPA's proposed CBI determination 
for this category, other commenters disagreed. These commenters argued 
that all or most of the Part 98 data should be considered non-CBI. 
These commenters did not provide any specific rationale regarding the 
data elements in this category, but

[[Page 30815]]

instead submitted general statements that disclosure of these data 
would be consistent with the CAA and the GHGRP.
    Response: While some commenters disagreed with EPA's proposed 
determination that this data is eligible for confidential treatment, 
they did not provide specific rationale or information for us to 
evaluate whether our proposed determination may not be appropriate for 
any data element in this category. Specifically, they did not provide 
any information to support why data in this particular category would 
meet the definition of emission data. Neither did the commenter explain 
why any data element in this category does not qualify as CBI. For 
instance, they did not claim that any data element in this category is 
already publicly available, nor did they disagree with EPA's assessment 
that disclosure of these data elements would likely cause competitive 
harm. Furthermore, the commenters who supported our proposed 
determination explained that the information is held confidential by 
companies and confirmed that disclosure of the data elements in this 
category could divulge sensitive information about specific processes 
that would likely cause substantial harm to reporters. We therefore 
conclude that our proposed determination for this data category is 
appropriate and finalize the determination in this action.

D. Amendment to 40 CFR Part 2 Addressing Treatment of Part 98 Data 
Elements

    The July 7, 2010 CBI proposal included proposed amendments to 40 
CFR 2.301 (Special rules governing certain information obtained under 
the Clean Air Act) that would establish procedures for EPA's handling 
of data collected under 40 CFR part 98 in accordance with EPA's final 
confidentiality determinations for the data. In this action, EPA 
finalizes the proposed amendment without change.
    The final amendment authorizes EPA to release Part 98 data elements 
determined to be ``emission data'' or not otherwise entitled to 
confidential treatment without further procedural requirements. The 
final amendment also sets forth procedures for the treatment of 
information in Part 98 determined to be CBI. These procedures are 
similar to and consistent with the existing 40 CFR part 2 procedures 
for handling information determined to be CBI.
1. Summary of Comments and Responses on the Amendments to 40 CFR Part 2
    Comment: One commenter recommended EPA revise 40 CFR 2.301(d) to 
include provisions either establishing a time limit on the duration of 
CBI determination or establishing a process by which data elements 
designated as CBI could be reclassified. Another commenter argued that 
if the Office of General Counsel makes a determination that information 
is no longer CBI, companies should be afforded the same opportunity to 
comment as provided under 40 CFR 2.204(e) and the opportunity for 
judicial challenge of the Agency's final determination, as provided 
under 40 CFR 2.205(f).
    Response: As discussed in Section II.A.8 of this preamble (Time 
Limits on Confidentiality Determinations), the commenters did not 
provide supporting information explaining how data determined to be CBI 
in this action will become less sensitive over any specific period of 
time such that EPA should limit its CBI determination for such data to 
that time period. We note that other CBI determinations made by EPA are 
generally not time limited. Further, the final amendment to 40 CFR 
2.301 provides procedures for EPA to modify a prior confidentiality 
determination (see 40 CFR 2.301(d)(4)) should certain Part 98 data be 
no longer entitled to confidential treatment because of a change in the 
applicable law or newly discovered or changed facts. This provision 
reflects the requirements in CBI regulations at 40 CFR 2.205(h) for 
modifying prior determinations for other information. For the reasons 
stated above, we do not believe that a time limit on the duration of 
CBI determinations made in this action is justified or necessary.
    Further, consistent with 40 CFR 2.204(e), we provided reporters 
notice and an opportunity to comment by making confidentiality 
determinations for Part 98 data through notice and comment rulemaking. 
In this action stakeholders were given the opportunity to submit CBI 
claims and supporting documentation during the 60-day comment period 
for the proposed CBI determinations. We received no specific comment or 
information, nor do we have any reason to believe, that reporting 
facilities would have had any new or different information to 
substantiate their claims at the time they submit the data elements as 
opposed to that available during the public comment period for the CBI 
proposals. Further, during the comment period, the reporting facilities 
were able to consider the Agency's proposed confidentiality 
determinations in preparing their CBI claims and supporting 
documentations; businesses do not generally have such insight into 
EPA's positions when substantiating CBI claims under the existing CBI 
regulations. Lastly, as provided in the Judicial Review section of this 
notice, this final action is subject to judicial review under CAA 
section 307(b).

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
amendments to 40 CFR part 2 are a ``significant regulatory action'' 
because they raise novel legal or policy issues. Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011) and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    The amendments to 40 CFR part 2 do not impose any new information 
collection burden. The amendments are administrative in nature and do 
not increase the recordkeeping and reporting burden associated with 
Part 98. However, the OMB has previously approved the information 
collection requirements contained in the Part 98 regulations 
promulgated on October 30, 2009 under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2060-0629. EPA has also submitted the Information Collection 
Request requirements for four additional Part 98 subparts promulgated 
on July 12, 2010 to OMB for approval (see 75 FR 39756). The OMB control 
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses,

[[Page 30816]]

small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of the amendments on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field. This definition of small entity is consistent 
with the definition of small entity used for Part 98.
    After considering the economic impacts of today's amendments to 40 
CFR part 2 on small entities, I certify that this action will not have 
a significant economic impact on a substantial number of small 
entities. The small entities directly regulated by Part 98 and affected 
by the amendments to 40 CFR part 2 include small businesses across all 
sectors of the economy encompassed by Part 98, small governmental 
jurisdictions, and small non-profits. An analysis of impacts on small 
entities was conducted at promulgation of Part 98 and the results are 
presented in the Section VIII.C of the preamble to the final Part 98 
(74 FR 56369, October 30, 2009). Subsequent small entity analyses for 
additional Part 98 subparts were conducted and the results presented 
in: Section IV.D of the preamble to ``Mandatory Reporting of Greenhouse 
Gases From Magnesium Production, Underground Coal Mines, Industrial 
Wastewater Treatment, and Industrial Waste (75 FR 39736, July 12, 
2010); Section IV.D of the preamble to ``Mandatory Reporting of 
Greenhouse Gases: Additional Sources of Fluorinated GHGs'' (75 FR 
74744, December 1, 2010); Section III.D of the preamble to ``Mandatory 
Reporting of Greenhouse Gases: Injection and Geologic Sequestration of 
Carbon Dioxide'' (75 FR 75060, December 1, 2010); Section III.D of the 
preamble to ``Mandatory Reporting of Greenhouse Gases: Petroleum and 
Natural Gas Systems'' (75 FR 74458, November 30, 2010). These analyses 
showed that the cost-to-sales ratio, comparing the compliance costs for 
affected industry sectors with industry-specific data on revenues for 
small businesses, are less than one percent for establishments owned by 
small businesses that EPA considers most likely to be covered by the 
reporting program. For small governments, EPA compared the average 
costs of compliance for combustion, local distribution companies, and 
landfills to average revenues and found that the costs of compliance 
with the reporting rule constitute less than one percent of average 
revenues for the smallest category of governments (i.e., those with 
fewer than 10,000 people). We concluded from these analyses that Part 
98 did not have a significant impact on a substantial number of small 
entities. This rule will not impose any new requirement on small 
entities that are not currently required by Part 98. The amendments to 
40 CFR part 2 are administrative in nature and do not increase the 
costs for small entities to comply with Part 98. Therefore, this rule 
does not have a significant economic impact on a substantial number of 
small entities.
    Although this final rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
taken several steps to reduce the impact of Part 98 on small entities. 
When we developed Part 98, we set applicability thresholds that reduced 
the number of small businesses required to report. We also did not 
require facilities to install CEMS if they did not already have them, 
and developed tiered methods that are simpler and less burdensome for 
some source categories. We also considered public comments submitted by 
small businesses and organizations that include small business members. 
After promulgation of Part 98, we provided a range of compliance tools, 
online training webinars, and other compliance assistance of use to 
small businesses. EPA continues to conduct significant outreach on the 
mandatory GHG reporting rule and maintains an ``open door'' policy for 
stakeholders to help inform EPA's understanding of key issues for 
industries and others.

D. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and Tribal governments and the private sector. Federal 
agencies must also develop a plan to provide notice to small 
governments that might be significantly or uniquely affected by any 
regulatory requirements. The plan must enable officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates and must inform, educate, and advise small 
governments on compliance with the regulatory requirements.
    The amendments to 40 CFR part 2 do not contain a Federal mandate 
that may result in expenditures of $100 million or more for State, 
local, or Tribal governments, in the aggregate, or the private sector 
in any one year. The amendments are administrative in nature and do not 
increase the costs of compliance for facilities to comply with Part 98. 
Thus, the amendments to 40 CFR part 2 are not subject to the 
requirements of sections 202 or 205 of the UMRA.
    In developing Part 98, EPA consulted with small governments 
pursuant to a plan established under section 203 of UMRA to address 
impacts of regulatory requirements in the rule that might significantly 
or uniquely affect small governments. For a summary of EPA's 
consultations with State and/or local officials or other 
representatives of State and/or local governments in developing Part 
98, see Section VIII of the preamble to the final Part 98 (74 FR 
56370).

E. Executive Order 131132: Federalism

    The amendments to 40 CFR part 2 do not have federalism 
implications. They will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
However, for a more detailed discussion about how Part 98 relates to 
existing State programs, please see Section II of the preamble to the 
final Part 98 rule (74 FR 56266).
    The amendments to 40 CFR part 2 are administrative in nature and 
apply to data reported under Part 98 by facilities that directly emit 
GHGs or supply fuel or chemicals that may emit GHGs when used. Part 98 
does not apply to governmental entities unless the government entity 
owns a facility that directly emit GHGs above threshold levels such as 
large stationary combustion sources or landfills, so relatively few 
government facilities would be affected. The amendments to 40 CFR part 
2 also do not limit the power of States or local governments to collect 
GHG data or regulate GHG emissions. Thus, Executive Order 13132 does 
not apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicited comments on the proposed action 
from State and local officials. For a discussion of how Part 98 relates 
to existing State programs and a

[[Page 30817]]

summary of EPA's consultations with State and local government 
representatives during the development of Part 98, see Sections II and 
VIII of the preamble for the final Part 98 (74 FR 56260, October 30, 
2009), respectively. In addition, after the July 7, 2010 CBI proposal, 
EPA held meetings with associations including State and local agencies, 
and considered public comments submitted by such agencies in developing 
the final confidentiality determinations and 40 CFR part 2 amendments.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action is not expected to have Tribal implications, as 
specified in Executive Order 13175 (65 FR 67249, November 9, 2000), 
because this action is administrative in nature and does not impose any 
new requirements on Tribes. Thus, Executive Order 13175 does not apply 
to this action. However, EPA consulted with Tribal officials in 
developing Part 98. For a summary of EPA's consultations with Tribal 
governments and representatives in developing Part 98, see Section 
VIII.F of the preamble to the final Part 98 (74 FR 56371, October 30, 
2009).

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. The amendments to 40 CFR part 2 are 
administrative in nature and therefore do not have any adverse impacts 
on energy supply, distribution, or use.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    The amendments do not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The amendments to 40 CFR part 2 are administrative in 
nature and therefore do not affect the level of protection provided to 
human health or the environment.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the U.S. prior to 
publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective July 25, 2011.

List of Subjects in 40 CFR Part 2

    Environmental protection, Administrative practice and procedure, 
Reporting and recordkeeping requirements.

    Dated: May 19, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:

PART 2--[AMENDED]

0
1. The authority citation for part 2 continues to read as follows:

    Authority:  5 U.S.C. 301, 552 (as amended), 553; secs. 114, 301 
and 307, Clean Air Act (as amended) (42 U.S.C. 7414, 7601, 7607).

Subpart B--[Amended]

0
2. Section 2.301 is amended by revising paragraph (c) and adding 
paragraph (d) to read as follows:


Sec.  2.301  Special rules governing certain information obtained under 
the Clean Air Act

* * * * *
    (c) Basic rules that apply without change. Except as otherwise 
provided in paragraph (d) of this section, Sec. Sec.  2.201 through 
2.207, Sec.  2.209, and Sec. Sec.  2.211 through 2.215 apply without 
change to information to which this section applies.
    (d) Data submitted under 40 CFR part 98. (1) Sections 2.201 through 
2.215 do not apply to data submitted under 40 CFR part 98 that EPA has 
determined, pursuant to section 114(c) of the Clean Air Act and 5 
U.S.C. 553(c), to be either of the following:
    (i) Emission data.
    (ii) Data not otherwise entitled to confidential treatment pursuant 
to section 114(c) of the Clean Air Act.
    (2) Except as otherwise provided in paragraphs (d)(2) and (d)(4) of 
this section, Sec. Sec.  2.201 through 2.215 do not apply to data 
submitted under 40 CFR part 98 data that EPA has determined, pursuant 
to section 114(c) of the Clean Air Act and 5 U.S.C. 553(c), to be 
entitled to confidential treatment. EPA shall treat that information as 
confidential in accordance with the provisions of Sec.  2.211, subject 
to paragraph (d)(4) of this section and Sec.  2.209.

[[Page 30818]]

    (3) Upon receiving a request under 5 U.S.C. 552 for data submitted 
under 40 CFR part 98 that EPA has determined, pursuant to section 
114(c) of the Clean Air Act and 5 U.S.C. 553(c), to be entitled to 
confidential treatment, the EPA office shall furnish the requestor a 
notice that the information has been determined to be entitled to 
confidential treatment and that the request is therefore denied. The 
notice shall include or cite to the appropriate EPA determination.
    (4) Modification of prior confidentiality determination. A 
determination made pursuant to section 114(c) of the Clean Air Act and 
5 U.S.C. 553(c) that information submitted under 40 CFR part 98 is 
entitled to confidential treatment shall continue in effect unless, 
subsequent to the confidentiality determination, EPA takes one of the 
following actions:
    (i) EPA determines, pursuant to section 114(c) of the Clean Air Act 
and 5 U.S.C. 553(c), that the information is emission data or data not 
otherwise entitled to confidential treatment under section 114(c) of 
the Clean Air Act.
    (ii) The Office of General Counsel issues a final determination, 
based on the criteria in Sec.  2.208, stating that the information is 
no longer entitled to confidential treatment because of change in the 
applicable law or newly-discovered or changed facts. Prior to making 
such final determination, EPA shall afford the business an opportunity 
to submit comments on pertinent issues in the manner described by 
Sec. Sec.  2.204(e) and 2.205(b). If, after consideration of any timely 
comments submitted by the business, the Office of General Counsel makes 
a revised final determination that the information is not entitled to 
confidential treatment under section 114(c) of the Clean Air Act, EPA 
will notify the business in accordance with the procedures described in 
Sec.  2.205(f)(2).
* * * * *
[FR Doc. 2011-12930 Filed 5-25-11; 8:45 am]
BILLING CODE 6560-50-P