Proposed Confidentiality Determinations for Data Required Under the Mandatory Greenhouse Gas Reporting Rule, 43889-43892 [2010-18229]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Proposed Rules]
[Pages 43889-43892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18229]



[[Page 43889]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

[EPA-HQ-OAR-2009-0924; FRL-9179-4]
RIN 2060-AQ04


Proposed Confidentiality Determinations for Data Required Under 
the Mandatory Greenhouse Gas Reporting Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental proposal.

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SUMMARY: This action supplements EPA's July 7, 2010 ``Proposed 
Confidentiality Determinations for Data Required under the Mandatory 
Greenhouse Gas Reporting Rule and Proposed Amendment to Special Rules 
Governing Certain Information Obtained under the Clean Air Act''. In 
this action, EPA is proposing confidentiality determinations for the 
data elements proposed to be added or revised in the ``Proposed 
Rulemaking: Revision of Certain Provisions of the Mandatory Reporting 
of Greenhouse Gases Rule,'' also signed today. This action addresses 
only the confidentiality of the new and revised data elements proposed 
in the concurrent notice.

DATES: Comments. Comments must be received on or before August 26, 
2010, or by September 10, 2010 if a public hearing is held (see below).
    Public Hearing. EPA does not plan to conduct a public hearing 
unless requested. To request a hearing, please contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section by August 3, 
2010. Upon such request, EPA will hold the hearing on August 11, 2010 
in the Washington, DC area starting at 9 a.m., local time. EPA will 
provide further information about the hearing on its Web page if a 
hearing is requested.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0924, by one of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
online instructions for submitting comments.
    E-mail: GHGReportingCBI@epa.gov.
    Fax: (202) 566-1741.
    Mail: Environmental Protection Agency, EPA Docket Center (EPA/DC), 
Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2009-0924, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460.
    Hand Delivery: EPA Docket Center, Public Reading Room, EPA West 
Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC 
20004. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0924. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through https://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the Air Docket, EPA/
DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. 
This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air Docket is (202) 566-1742.

FOR FURTHER GENERAL 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; e-mail 
address: GHGMRR@epa.gov. For technical information, contact the 
Greenhouse Gas Reporting Rule Hotline at: https://www.epa.gov/climatechange/emissions/ghgrule_contactus.htm. Alternatively, contact 
Carole Cook at 202-343-9263.

SUPPLEMENTARY INFORMATION: Additional Information on Submitting 
Comments: To expedite review of your comments by Agency staff, you are 
encouraged to send a separate copy of your comments, in addition to the 
copy you submit to the official docket, to Carole Cook, U.S. EPA, 
Office of Atmospheric Programs, Climate Change Division, Mail Code 
6207-J, Washington, DC 20460, telephone (202) 343-9263, e-mail 
GHGReportingCBI@epa.gov.
    Regulated Entities. This supplemental action affects entities 
required to submit annual greenhouse gas (GHG) reports under 40 CFR 
Part 98. The Administrator determined that Part 98 is subject to the 
provisions of Clean Air Act (CAA) section 307(d). See CAA section 
307(d)(1)(V) (the provisions of CAA section 307(d) apply to ``such 
other actions as the Administrator may determine''). The Mandatory 
Greenhouse Gas Reporting Rule and this action affect fuel and chemicals 
suppliers, and direct emitters of GHGs. Affected categories and 
entities include those listed in Table 1 of the preamble to the 
``Proposed Confidentiality Determinations for Data Required under the 
Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to 
Special Rules Governing Certain Information Obtained under the Clean 
Air Act'' (75 FR 39094).
    Acronyms and Abbreviations. The following acronyms and 
abbreviations are used in this document.

CAA Clean Air Act
CBI confidential business information
CFR Code of Federal Regulations
EPA U.S. Environmental Protection Agency
GHG greenhouse gas
U.S. United States

Table of Contents

I. General Information
    A. Background
    B. Proposed Changes to the Part 98 Reporting Requirements
    C. Proposed Data Categories and Confidentiality Determinations 
for the Proposed New and Revised Data Elements
    D. Request for Comments
II. Statutory and Executive Order Reviews

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I. General Information

A. Background

    Under Part 98 of the final Mandatory Greenhouse Gas Reporting Rule 
(74 FR 56259, October 30, 2009, and subsequent amendments), hereinafter 
referred to as Part 98, EPA will collect data from facilities that 
directly emit GHGs from their processes or stationary fuel combustion 
sources (``direct emitters'') as well as upstream suppliers of fuels 
and industrial GHGs (``suppliers'').
    Following the publication of the proposed Mandatory GHG Reporting 
Rule on April 10, 2009 (74 FR 16448), EPA received comments both 
supporting and opposing the public release of data collected under Part 
98. Industry commenters generally expressed concern that EPA would 
disclose reported data that industry considers trade secrets or 
confidential business information, hereinafter collectively referred to 
as CBI. Other commenters favored disclosure of information, and some 
argued that all of the information gathered under Part 98 should be 
``emission data'' and hence not entitled to confidential treatment.
    In response to these comments, EPA initiated a rulemaking to 
establish the confidentiality status of Part 98 data elements and 
procedures for handling Part 98 data. On July 7, 2010, EPA published 
the ``Proposed Confidentiality Determinations for Data Required under 
the Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to 
Special Rules Governing Certain Information Obtained under the Clean 
Air Act'' (75 FR 39094), herinafter referred to as the July 7, 2010 
confidentiality proposal.
    Concurrent to today's action, EPA signed the ``Proposed Rulemaking: 
Revision of Certain Provisions of the Mandatory Reporting of Greenhouse 
Gases Rule'' herinafter referred to as the Part 98 amendment proposal. 
The Part 98 Amendments proposal, if finalized, would result in changes 
to certain part 98 data elements. Because the July 7, 2010 
confidentiality proposal was issued before the Part 98 amendment 
proposal, it did not address the revised and new data elements in the 
amendments proposal. This action contains EPA's proposed 
confidentiality determination for the new and revised data elements 
included in the Part 98 amendment proposal.

B. Proposed Changes to the Part 98 Reporting Requirements

    As mentioned above, EPA proposed amendments to Part 98 that, if 
finalized, would make clarifying and technical changes to reporting 
requirements. Proposed revisions include allowing greater flexibility 
or simplified calculation methods for certain sources, amending data 
reporting requirements and definitions, and providing technical 
corrections, clarifying and other amendments. The proposed amendments 
include addition of new reporting requirements and deletion of certain 
existing reporting requirements.
    The proposed amendments include changes to the data elements 
required by 40 CFR part 98, subpart A and the following Part 98 
subparts promulgated in 2009:
     Subpart C, General Stationary Fuel Combustion Sources;
     Subpart D, Electricity Generation;
     Subpart F, Aluminum Production;
     Subpart G, Ammonia Manufacturing;
     Subpart V, Nitric Acid Production;
     Subpart X, Petrochemical Production;
     Subpart Y, Petrochemical Production;
     Subpart OO, Suppliers of Industrial Greenhouse Gases; and
     Subpart PP, Suppliers of Carbon Dioxide.
    After consideration of public comment, EPA intends to issue a final 
action.

C. Proposed Confidentiality Determinations for the Proposed New and 
Revised Data Elements

    In the July 7, 2010 confidentiality proposal, EPA described the 
methodology and rationale for the proposed confidentiality 
determinations. To make the proposed determinations, EPA first grouped 
the Part 98 data elements into 22 data categories (11 direct emitter 
data categories and 11 supplier data categories) and then proposed 
confidentiality determinations on a category basis. Exceptions to this 
approach were made for three of the supplier data categories, where 
confidentiality determinations were made for individual data elements 
within the category rather than by category. For the list of all 22 
data categories and brief descriptions of the data elements within each 
category, please see Section II.C (for direct emitter data categories) 
and Section II.D (for supplier data categories) of the July 7, 2010 
confidentiality proposal.
    As discussed in Section I.B of today's supplemental proposal, in 
the Part 98 amendment proposal, EPA proposed amending part 98 to add, 
delete and revise certain data elements. Today's action contains EPA's 
proposed confidentiality determination for the proposed new and revised 
data elements.
    Consistent with the approach set forth in the July 7, 2010 
confidentiality proposal, each new or revised data element is assigned 
to one of the 22 data categories based on the type and characteristics 
of the data element. Because the scopes of the existing data categories 
are sufficient to cover the proposed new data elements, no new data 
category is proposed. For a list of the new and revised data elements 
addressed in the Part 98 amendments proposal and their assigned data 
categories, please see Memorandum ``Data Category Assignments for the 
Proposed Revisions to the Part 98 Reporting Requirements'' in Docket 
EPA-HQ-OAR-2009-0924 and on the Web site (https://www.epa.gov/climatechange/emissions/CBI.html.)
    As mentioned above, EPA proposed confidentiality determinations for 
part 98 data on a category basis except for three supplier categories, 
where confidentiality determinations were made for individual data 
elements within the category rather than by category. These three 
supplier data categories are: ``Greenhouse Gases Reported'', 
``Production/Throughput Quantities and Composition'', and ``Unit/
Process Operating Characteristics''. Except for data elements assigned 
to the three supplier data categories listed above, EPA proposes in 
this supplemental notice to apply the confidentiality determination 
(and supporting rationales) for the data category to which the proposed 
new or revised data element is assigned.
    For each revised data element, EPA assessed whether the proposed 
revisions to the data element changed the existing data category 
assignment. The proposed changes to existing data elements were 
generally minor changes to correct references, clarify the reporting 
requirement, or simplify reporting. None of the proposed revisions to 
the existing data elements affect the existing category assignments for 
these data elements.
    The proposed amendments to part 98 would add two new data elements 
to the ``Production/Throughput Quantities and Composition'' supplier 
data category and three new data elements to the ``Unit/Process 
Operating Characteristics'' supplier data category. As previously 
mentioned, confidentiality determinations were proposed for individual 
data elements within these categories rather than on a category basis. 
Similarly, EPA evaluated individually the confidentiality status of the 
proposed new data elements assigned to these two data categories.

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    In the July 7, 2010 confidentiality proposal, EPA proposed to 
determine that none of the Part 98 supplier data qualify as ``emission 
data'' as that term is defined at 40 CFR 2.301(a)(i).\1\ EPA then 
proposed CBI determinations for supplier data by considering the 
confidentiality determination criteria at 40 CFR 2.208. In particular, 
EPA focused on whether release of the data is likely to cause 
substantial harm to the business's competitive position. See 40 CFR 
2.208(e)(1). Consistent with this approach, EPA proposes the following 
CBI determinations for the proposed new supplier data elements in the 
``Production/Throughput Quantities and Composition'' and ``Unit/Process 
Operating Characteristics'' supplier data categories.
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    \1\ Section 114(c) of the CAA requires that ``emission data'' 
shall be publicly available.
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    One new data element added to the ``Production/Throughput 
Quantities and Composition'' data category requires facilities that 
produce fluorinated GHGs to report the concentration of each 
fluorinated GHG contained in their products. These data would be 
reported in a one-time report submitted by fluorinated GHG production 
facilities by March 31, 2011. The other new data element assigned to 
this data category would require fluorinated GHG production facilities 
to submit a revised report of the concentrations of fluorinated GHGs 
when changes are made to the compositions of their products. EPA 
proposes that these data elements be considered CBI. Like the other 
product specific data elements included in this data category in the 
July 7, 2010 confidentiality proposal, these two data elements would 
provide sensitive information on product composition that is not 
already publicly available and would likely harm the competitive 
position of fluorinated GHG producers. For more detailed rationales in 
support of our proposed CBI determination for these two new data 
elements, please see Section II.D.3 of the July 7, 2010 confidentiality 
proposal, which discusses the ways in which product-specific production 
quantities and product composition data could be used by competitors of 
a reporting facility to gain insights and develop market strategies 
that would harm the reporter's competitive position.
    The three new data elements added to the data category for ``Unit/
Process Operating Characteristics'' consist of the following data 
elements:
     The location of the mass flow meter in the process chain 
in relation to the points of CO2 stream capture, 
dehydration, compression, and other processing (40 CFR part 98, subpart 
PP).
     The location of the volumetric flow meter in the process 
chain in relation to the points of CO2 stream capture, 
dehydration, compression, and other processing (40 CFR part 98, subpart 
PP).
     Date on which changes were made to fluorinated GHG 
concentrations in a product or the date on which production of a new 
product commenced (40 CFR part 98, subpart OO).
    The location of flow meters does not provide information on the 
design or operation of a facility's production processes or the design 
or operation of any CO2 compression, dehydration, or other 
purification process that may be present at the facility. Facilities 
are not required to provide detailed and potentially sensitive 
information about their facilities, such as descriptions or diagrams of 
their processes. Rather reporters are only required to report limited 
information on the location of a flow meter in terms of its position 
relative to other processes, such as the CO2 stream capture, 
dehydration, compression, and other processing. Similarly, the date on 
which manufacture of a new product commenced or changes were made to 
the composition of a fluorinated GHG product does not disclose the 
actual composition of the product, the raw materials used to make the 
product, the method of manufacture, or the efficiency of the 
manufacturing process. The manufacture of a new product and changes to 
existing product lines is often publicly available through company 
marking materials and other sources (e.g., publication or revisions to 
Material Safety Data Sheets). Since the disclosure of these data 
elements is unlikely to harm the competitive position of the reporter, 
we propose these three data elements would not be entitled to 
confidential treatment.
    When finalized, the changes to the data elements may not be exactly 
the same as those proposed in the Part 98 amendment proposal; however, 
we expect that any revisions to data elements in the final amendment 
would still logically fall into the same or another data category that 
is addressed in the confidentiality proposal and would therefore be 
covered by the confidentiality determination for that data category. If 
the final amendments differ from those included in the Part 98 
amendment proposal, EPA will address those changes in the final 
confidentiality determination action.

D. Request for Comments

    This supplemental action provides affected businesses, other 
stakeholders, and the general public an opportunity to provide comment 
on the proposed confidentiality determinations for the proposed new and 
revised data elements. For the proposed new and revised data elements, 
we are soliciting comment on the issues raised in the July 7, 2010 
confidentiality proposal as they apply to the new and revised data 
elements addressed in the part 98 amendment proposal and this 
supplemental notice. Specifically, we are soliciting comment on whether 
the data category assignments for the proposed new and revised data 
elements are reasonable and appropriate (i.e., whether the proposed new 
and revised data elements are sufficiently similar to the other data 
elements listed in their assigned data category or whether a different 
data category would be more appropriate). We are also soliciting 
comment on whether the proposed confidentiality determinations for 
these data elements are appropriate, whether any specific circumstances 
exist that would warrant different confidentiality determinations for 
these data elements, and whether any unique circumstances exist where a 
limited process would be appropriate to re-evaluate EPA's final 
determinations for these data elements. For a list of the proposed new 
and revised data elements and their assigned data categories, please 
see the memorandum ``Data Category Assignments for the Proposed 
Revisions to the Part 98 Reporting Requirements'' in Docket EPA-HQ-OAR-
2009-0924 and on the Web site (https://www.epa.gov/climatechange/emissions/CBI.html.)
    We are also interested in receiving suggestions on appropriate 
formats for publishing the proposed new and revised data elements (both 
CBI and non-CBI data). For those new and revised data elements for 
which we propose confidential treatment, we are soliciting suggestions 
for the best methods of aggregating the data and comment on whether 
publishing any of the new and revised data elements in ranges at the 
facility-level would provide valuable information that aggregated data 
may not convey.
    In today's notice we are soliciting comment only on the proposed 
confidentiality determinations for the new and revised data elements 
contained in the Part 98 amendment proposal. We are not soliciting 
further comment on those data elements in the July 7, 2010 
confidentiality proposal for

[[Page 43892]]

which no changes are proposed in the Part 98 amendment proposal.

II. Statutory and Executive Order Reviews

    The statutory and executive order reviews do not apply to this 
notice because this notice does not propose any regulatory changes. For 
a complete discussion of the statutory and executive order reviews as 
they apply to the proposed amendments to 40 CFR part 2, see the notice 
``Proposed Confidentiality Determinations for Data Required under the 
Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to 
Special Rules Governing Certain Information Obtained under the Clean 
Air Act'' (75 FR 39094).

List of Subjects 40 CFR Part 2

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

    Dated: July 20, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-18229 Filed 7-26-10; 8:45 am]
BILLING CODE 6560-50-P