# 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 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-12930 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 26, 2011 - **Citation:** 76 FR 30782 ## Text 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 Category NAICS Examples of affected facilities General Stationary Fuel Combustion Sources Facilities operating 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 Destruction 325120 Chlorodifluoromethane manufacturing facilities. Hydrogen Production 325120 Hydrogen manufacturing facilities. Iron and Steel Production 331111 Integrated iron and steel mills, steel companies, sinter plants, blast furnaces, basic oxygen process furnace shops. Lead Production 331419 Primary lead smelting and refining facilities. 331492 Secondary lead smelting and refining facilities. Lime Production 327410 Calcium oxide, calcium hydroxide, and dolomitic hydrates manufacturing facilities. Magnesium Production 331419 Primary refiners of nonferrous metals by electrolytic methods. 331492 Secondary magnesium processing plants. Municipal Solid Waste Landfills 562212 Solid waste 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 Treatment 322110 Pulp mills. 322121 Paper mills. 322122 Newsprint mills. 322130 Paperboard mills. 311611 Meat processing facilities. 311411 Frozen fruit, juice, and vegetable manufacturing facilities. 311421 Fruit and vegetable canning facilities. 325193 Ethanol manufacturing facilities. Suppliers of Coal Based Liquids Fuels 211111 Coal liquefaction at mine sites. Suppliers of Petroleum Products 324110 Petroleum refineries. Suppliers of Natural Gas and NGLs 221210 Natural gas distribution facilities. 211112 Natural gas liquid extraction facilities. Suppliers of Industrial GHGs 325120 Industrial gas manufacturing facilities. Suppliers of Carbon Dioxide (CO 2 ) 325120 Industrial gas manufacturing facilities. Table 1 of this preamble lists the types of entities that could be required to report data under Part 98. This list is not intended to be exhaustive, but rather to provide a guide for readers regarding facilities and suppliers likely to be affected by this action. Other types of facilities and suppliers not listed in the table may also be subject to reporting requirements. Many facilities and suppliers are subject to the reporting requirements in multiple subparts of Part 98. To determine whether you are affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98, subpart A. If you have questions regarding the applicability of this action to a particular facility, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble. Judicial Review. Under section 307(b)(1) of the CAA, judicial review of any of the final confidentiality determinations and rule amendments made in this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by July 25, 2011. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. This section also provides a mechanism for us to convene a proceeding for reconsideration “[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20004, with a copy to the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and a copy to the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004. Under CAA section 307(b)(2), the confidentiality determinations and rule amendments established by this action may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document. BAMM Best Available Monitoring Methods CAA Clean Air Act CBI confidential business information CBP Customs and Border Protection CEMS continuous emission monitoring system(s) CFR Code of Federal Regulations CH 4 methane CO carbon monoxide CO 2 carbon dioxide CO 2 e 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 CHF 3 ) LDC local distribution company N 2 O 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 SF 6 sulfur Hexafluoride SBREFA Small Business Regulatory Enforcement Fairness Act TRI Toxic Release Inventory USGS United States Geologic Survey UMRA Unfunded Mandates Reform Act U.S. United States Table of Contents I. Background A. Background on the Final Rule B. Approach To Making Confidentiality Determinations C. Subparts Covered by This Final Rule II. Confidentiality Determinations for Data Required by the Mandatory Greenhouse Gas Reporting Rule, Responses to Public Comments, and Final Rule Amendment A. Final Confidentiality Determinations B. Direct Emitters C. Suppliers D. Amendment to 40 CFR Part 2 Addressing Treatment of Part 98 Data Elements III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 131132: Federalism G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Background A. Background on the Final Rule On October 30, 2009, EPA published the Mandatory Greenhouse Gas Reporting Rule for collecting information regarding greenhouse gas (GHG) emissions from a broad range of industry sectors (74 FR 56260). Under 40 CFR part 98 of the rule and its subsequent amendments (hereinafter referred to as Part 98), EPA will collect data from certain facilities and suppliers above specified thresholds. The data to be reported includes information on GHG emissions and GHGs supplied, including information necessary to characterize, quantify, and verify the GHG emissions and GHGs supplied data. In the preamble to Part 98, we stated, “Through a notice and comment process, we will establish those data elements that are `emissions data' and therefore [under CAA section 114(c)] will not be afforded the protections of CBI. As part of that exercise, in response to requests provided in comments, we may identify classes of information that are not emissions data, and are CBI” (74 FR 56287, October 30, 2009). On July 7, 2010, EPA proposed confidentiality determinations for Part 98 data elements and proposed amending EPA's regulation for handling confidential business information to add specific procedures for the treatment of Part 98 data (75 FR 39094; hereinafter referred to as the “July 7, 2010 CBI proposal”). These proposed amendments to 40 CFR part 2 would allow EPA to release Part 98 data that are determined to be emission data or non-CBI upon finalizing the confidentiality status of these data. The amendments also set forth procedures for treatment of information in Part 98 determined to be CBI. The proposed procedures are similar to or consistent with the existing 40 CFR part 2 procedures. The July 7, 2010 CBI notice proposed confidentiality determinations for the data elements in the subparts that were included in the 2009 final Part 98 rule (see 74 FR 56260, October 30, 2009), in four subparts that were finalized in July 2010 (see 75 FR 39736, July 12, 2010), and in seven new subparts that had been proposed but not yet finalized as of July 7, 2010 (see 75 FR 18576, 75 FR 18608, and 75 FR 18652, April 12, 2010). The July 7, 2010 CBI proposal also covered proposed changes to the reporting requirements for some of the 2009 final Part 98 subparts. These changes had been proposed in two separate rulemakings (see 75 FR 18455, April, 12, 2010; and 75 FR 33950, June 15, 2010). On July 20, 2010, EPA issued another proposed rulemaking that changed the description of some reported data elements and required reporting of some new data elements (75 FR 48744; hereinafter referred to as the “July 20, 2010 revisions proposal”). These changes were subsequently finalized on December 17, 2010 (75 FR 79092). Also on July 20, 2010, EPA issued a supplemental CBI proposal that proposed confidentiality determinations for the new and revised data elements that were proposed in the July 20, 2010 revisions notice (75 FR 43889; hereinafter referred to as the “July 20, 2010 supplemental CBI proposal.”) In this action, EPA is finalizing confidentiality determinations for Part 98 data elements with certain exceptions that are discussed in more detail below. The Part 98 data elements covered by this action are described in Section I.C of this preamble. EPA is also finalizing the amendments to EPA's regulation for handling confidential business information. B. Approach To Making Confidentiality Determinations In the July 7, 2010 CBI proposal, we described the methodology and rationale used for making confidentiality determinations. This methodology consisted of a two-step process in which we first grouped Part 98 data elements into 22 data categories in all (11 direct emitter data categories and 11 supplier data categories) with each of the 22 data categories containing data elements that are similar in type or characteristics. EPA then proposed confidentiality status based on (1) whether the data qualify as emission data as defined in 40 CFR 2.301(a)(2)(i); and (2) for data that do not qualify as emission data, whether they qualify for confidential treatment under 40 CFR 2.208. In the July 7, 2010 CBI proposal, EPA proposed that only five of the data categories meet the definition of emission data (see Table 2 of the preamble for the July 7, 2010 CBI proposal for the list of the data categories proposed as emission data). We proposed that the remaining six direct emitter data categories and 11 supplier data categories did not meet the definition of emission data in 40 CFR 2.301(a)(2)(i). We then evaluated, on a category basis, whether the data elements in these 17 data categories qualify as trade secret or confidential business information under CAA section 114(c) (hereinafter referred to collectively as CBI). 1 In particular, we followed EPA's criteria under 40 CFR 2.208(e)(i) to determine whether data qualifies as CBI, focusing on whether disclosure of the data in each category would be likely to cause “substantial harm to the business's competitive position.” We evaluated the data elements by category and proposed confidentiality determinations that applied to all data elements within each category, except for three supplier data categories, 2 where we proposed confidentiality determinations for individual data elements within the category. 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 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 Data category Confidentiality determination for data elements in each category Emission data a Data that are not emission data and not CBI Data that are not emission data but are 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 Not Inputs to Emission Equations X Unit/Process Static Characteristics that are Not Inputs to Emission Equations X c X c Unit/Process Operating Characteristics that are Not Inputs to Emission Equations X c X c Test and Calibration Methods X Production/Throughput Data that are Not Inputs to Emission Equations X Raw Materials Consumed that are Not Inputs to Emission Equations X Process-Specific and Vendor Data Submitted in BAMM Extension Requests X 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 Data category Confidentiality determinations for data elements in each category Emission data a Data that are not emission data and not CBI Data that are not emission data but are 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 Not Related to Production/Throughput or Materials Received X Emission Factors X Amount and Composition of materials received X Data Elements Reported for Periods of Missing Data That are Related to Production/Throughput or Materials Received X Supplier Customer and Vendor Information X Process-Specific and Vendor Data Submitted in BAMM Extension Requests X a Under CAA section 114, emission data is not entitled to confidential treatment. See Section I.C of the preamble for the July 7, 2010 CBI proposal (75 FR 39094, July 7, 2010) for further discussion of CAA section 114 requirements. The term emission data is defined at 40 CFR 2.301(a)(2)(i). b Section 114(c) of the CAA affords confidential treatment to data (except emission data) that are considered CBI. c EPA did not make a category-specific confidentiality determination for this category but instead made determination for individual data elements. The data category contains data elements determined to be CBI and data elements determined to be non-CBI. 1. Major Changes to the Scope and Determinations for Particular Data Categories This section provides a summary of major changes to the scope of this action as well as changes to the determinations for particular data categories. For a discussion of changes to the confidentiality determinations for particular data elements, see Section II.B of this preamble for direct emitters and Section II.C of this preamble for suppliers. • Although we proposed determinations for the data elements in the following subparts, we have decided not to make final determinations for the data elements in these subparts in this action for the reasons specified in Section II.A.3 of this preamble: — Subpart I, Electronics Manufacturing; — Subpart L, Fluorinated Gas Production; — Subpart W, Petroleum and Natural Gas Systems; — Subpart DD, Sulfur Hexafluoride (SF 6 ) and Perfluorocarbons (PFCs) from Electrical Equipment at an Electric Power System; — Subpart QQ, Importers and Exporters of Fluorinated Greenhouse Gases Contained in Pre-Charged Equipment or Closed-Cell Foams; — Subpart RR, Geologic Sequestration of Carbon Dioxide; — Subpart SS, Sulfur Hexafluoride and PFCs from Electrical Equipment Manufacture or Refurbishment; and — Subpart UU, Injection of Carbon Dioxide. • We are finalizing CBI determinations for 24 data elements that were added to Part 98 in response to comment on the three proposed revisions notices. The proposed revisions were addressed in the July 2010 CBI proposals. The 24 data elements are the same types of data as those data elements that were included in the CBI proposals and therefore are given the same confidentiality determinations in this final action. For a more detailed explanation, please see Section II.A.3 of this preamble. • Although we proposed a determination for the direct emitter data category Inputs to Emission Equations, we have decided not to make a final determination for this data category in this action for the reasons specified in Section II.A.4 of this preamble. • Although we proposed category-wide determinations for the following direct emitter data categories, in this action we have made final determinations for individual data elements in these categories for the reasons specified in Section II.A.5 of this preamble: —Unit/Process Static Characteristics that are Not Inputs to Emission Equations. —Unit/Process Operating Characteristics that are Not Inputs to Emission Equations. Following is a summary of the major comments and responses regarding the scope of this action, EPA's approach and rationale for making confidentiality determinations, and other overarching issues. Responses to major comments on determinations for the direct emitter data elements and supplier data elements are included in Sections II.B.2 through II.B.10 (direct emitter data categories) and II.C.2 through II.C.13 (supplier data categories) of this preamble. Responses to comments on the proposed amendments to 40 CFR part 2 are included in Section II.D of this preamble. Other comments and responses thereto can be found in “Proposed Confidentiality Determinations and Data Handling Procedures for Part 98 Data: Responses to Public Comments” in Docket EPA-HQ-OAR-2009-0924 and on the Web site, http://www.epa.gov/climatechange/emissions/ghgrulemaking.html. 2. General Approach To Making CBI Determinations Comment: Many commenters supported EPA's approach of grouping together similar data elements and making determinations based on their similar characteristics. Several commenters stated that the approach is reasonable and that the proposed data categories are appropriate. Many commenters agreed with EPA that this approach would speed the publication of data and reduce both the administrative burden on EPA and the amount of paperwork for reporters submitting their annual reports. Some commenters stated that this approach would benefit reporters of data determined to be CBI, as it would prevent competitors from forcing them to defend data on a case-by-case basis in Agency CBI proceedings. Another commenter stated that EPA's approach would provide certainty to the regulated community regarding which specific data elements will be afforded protection from disclosure. This commenter believes that an ad hoc approach could lead to inconsistent CBI determinations, both for the same data element in a given subpart and for similar data elements in different subparts. This commenter also stated that some small businesses may be unfamiliar with the Agency's case-by-case confidentiality claim provisions and would be placed at a disadvantage to competitors who were familiar with the case-by-case process. Although many commenters supported EPA's approach, other commenters argued that EPA should allow reporters to submit case-by-case CBI claims with their annual reports. Some commenters questioned EPA's authority to make category-based confidentiality determinations. Several commenters argued that EPA should evaluate all CBI claims on a case-by-case basis, while others asserted that EPA should evaluate some claims this way. Some commenters argued that EPA's approach to making CBI determinations for Part 98 data was inconsistent with other EPA programs that evaluate CBI claims on a case-by-case basis. Several commenters argued that case-by-case determinations provide greater flexibility to allow the proper consideration of facility-specific issues in context and that category-wide CBI determinations would not allow for a thorough evaluation of the potential economic impacts on individual facilities from the disclosure of sensitive information. Some commenters stated that case-by-case determinations are essential because each facility's circumstances are unique. Others argued that retaining a case-by-case determination option would not preclude EPA from making the proposed category-based CBI determinations for some of the data elements. Many commenters asserted that they preferred case-by-case determinations despite the additional work and expense it would require. These commenters stated that individual reporters should be allowed to decide whether the cost and effort involved in preparing a confidentiality claim was worthwhile. Some commenters stated that this approach would deprive regulated entities of a fair and reasonable procedure to document CBI claims. Other commenters stated that EPA's approach infringed upon the rights of regulated entities by imposing presumptive CBI determinations and not allowing individual entities to submit their own CBI claims. A few commenters argued that EPA was effectively preventing reporters from rebutting CBI determinations for Part 98 data. Response: EPA agrees with commenters who stated that category-based CBI determinations reduce the burden on the regulated community. EPA also agrees with comments that category-based CBI determinations allow for timely publication of emission data and data not otherwise eligible for confidential treatment. If EPA allowed individual CBI claims, EPA would likely receive a significant number of claims because of the large number of individual reporters required to submit annual reports (more than 10,000) and the large number of different data elements (more than 1,900). Facilities would likely make multiple CBI claims that would each need to be substantiated. Given the time and resources required for facilities to prepare the claims and for EPA to evaluate each individual CBI claim, timely publication of data would be difficult to achieve. We disagree with commenters who stated that EPA does not have the authority to make category-based CBI determinations. While EPA generally makes CBI determinations on a case-by-case basis in accordance with 40 CFR part 2, EPA has authority, as demonstrated by the analogous provisions of 40 CFR 2.207 (Class Determinations), to make category-based CBI determinations where it would serve a useful purpose (40 CFR 2.207(a)(3)) and the data in a category share common characteristics that result in identical treatment of all data in the category (40 CFR 207(a)(2)). As discussed above, EPA concluded that the categorical approach, added to 40 CFR 2.301 through this action, was warranted as it will result in the timely release of data while also reducing the burden on reporting entities to substantiate multiple CBI claims for each annual report. EPA also believes that the categorical approach is appropriate in this case because there are over 1,900 Part 98 data elements included in this action and many of them share common characteristics. Consistent with the provisions of 40 CFR 2.207, EPA issued the July 2010 CBI proposals containing categorical confidentiality determinations for Part 98 data, and provided the public an opportunity to comment. EPA specifically sought comment on whether the data categories were appropriate or if they were too broad or too narrow. Based on the comments received, of the 22 data categories proposed, EPA concluded that categorical determinations were not appropriate for five data categories. For these five data categories, EPA made confidentiality determinations for individual data elements. EPA also disagrees with the comments that the approach taken in this final action is inconsistent with the handling of CBI claims under other EPA programs or that the approach is contrary to regulatory provisions for CBI. As we explained in the July 7, 2010 CBI proposal, our CBI determinations were made using the definition of emission data at 40 CFR 2.301(a)(2)(i). EPA has used this definition of emission data for over 20 years to make decisions on individual case-by-case CBI claims. For data that did not meet the definition of emission data, we used the existing criteria from the CBI regulations at 40 CFR 2.208 to evaluate and determine the confidentiality of the Part 98 data elements in this action. We further disagree with the comment that facility-specific issues cannot be addressed through the category-based approach taken in this final action. In the July 2010 CBI proposals, we expressly sought comment on facility-specific situations in which CBI protection should be provided. We have received comments on facility-specific issues and addressed those comments in the relevant sections of this preamble. Specifically, for the handful of data elements where commenters were able to demonstrate that conditions varied significantly among reporters, EPA decided not to make a final confidentiality determination for the particular data element in this final action. The confidentiality status of these data elements will be evaluated on a case-by-case basis, in accordance with the existing CBI regulations in 40 CFR part 2, subpart B upon receipt of a public request for these data elements. We also disagree with the commenters who claimed that EPA should provide reporters a case-by-case determination option. As mentioned above, we have addressed the comments on facility-specific issues in this final action. We received no specific comment or information indicating, nor do we have reason to believe, that reporting facilities would have any new or different information to substantiate their CBI claims at the time they submit data beyond that information available to them during the public comment periods on the CBI proposals. We therefore do not believe that a case-by-case determination at the time of data submittal would result in a different confidentiality determination. We further disagree with commenters who stated that EPA's approach imposed presumptive CBI determinations without allowing businesses a fair and reasonable procedure to document CBI claims. In July 2010, we proposed CBI determinations for Part 98 data elements and provided stakeholders as well as the general public an opportunity to comment on data elements as well as data categories that might qualify for CBI protection and made it clear that this was the opportunity for reporters to substantiate their CBI claims. For example, in Section I.E of the preamble to the July 7, 2010 CBI proposal, we stated that “this rulemaking provides the reporting businesses an opportunity to justify any confidentiality claim they may have for the data they are required to submit” and in Section II.B of the July 7, 2010 CBI proposal preamble we specifically solicited comment on the proposed data categories, confidentiality determinations, and any “unique circumstances * * * that would warrant making subpart-specific confidentiality determinations.” Stakeholders were given a 60-day comment period to review the proposed determinations and prepare documentation substantiating any CBI claims. We consider the 60-day comment period to be more than adequate, especially in light of the 15 days businesses have under the existing CBI regulations to respond to requests for information substantiating a CBI claim (see 40 CFR 2.204(e)). During the comment periods, the reporting facilities were able to consider the Agency's proposed confidentiality determinations in preparing their CBI claims and supporting documentation; businesses do not have such insight into EPA's likely positions when substantiating CBI claims on a case-by-case basis under the existing CBI regulations that apply to non-Part 98 data. As shown in this notice, EPA considered and addressed the comments received in finalizing the confidentiality determinations in this action. Finally, we disagree with commenters who argued that the approach we selected prevents facilities from rebutting EPA's determinations. By issuing the CBI proposals for public comment, the Agency already gave the reporting facilities an opportunity to rebut the Agency's proposed confidentiality determinations. In contrast, under the existing CBI regulations that apply to non-Part 98 data, businesses would not know of EPA's position when substantiating CBI claims and therefore would not have an opportunity to rebut EPA's position in its substantiation. Further, as discussed in more detail in the Judicial Review section above, the confidentiality determinations made in this final action are subject to judicial review under section 307(b) of the CAA, thereby offering reporters another opportunity to rebut the Agency's determination. 3. Scope of the CBI Proposal Comment: In the July 7, 2010 CBI proposal, we included data elements from seven new subparts that had been proposed but not yet finalized ( i.e., subparts I, L, W, DD, SS, RR, 3 and QQ). These seven subparts were subsequently finalized in three separate rulemakings (see 75 FR 74458, November 30, 2010; 75 FR 74774, December 1, 2010; and 75 FR 75060, December 1, 2010). During the comment period for the CBI proposal, a few commenters recommended that EPA not finalize confidentiality determinations for data elements from the seven proposed subparts until after EPA finalized those subparts. These commenters expressed concern that data elements in the finalized subparts would differ from those in the proposed subparts. The commenters therefore suggested that EPA not finalize the CBI determinations for data elements in these seven subparts without providing the public with opportunity to comment on the confidentiality determinations for any new data elements that might be added when these subparts were finalized. 3 The reporting rules for CO 2 injection and sequestration were initially proposed under a single subpart (subpart RR). However, EPA later decided to separate subpart RR into two subparts: Geologic Sequestration of Carbon Dioxide (subpart RR) and Injection of Carbon Dioxide (subpart UU). The July 2010 CBI proposals also included confidentiality determinations for new and revised data elements that were proposed in three Part 98 revision notices (see 75 FR 18455, April, 12, 2010, 75 FR 33950, June 15, 2010 and 75 FR 48744, August 11, 2010). One commenter suggested that EPA allow stakeholders to submit comments on the CBI determinations for these data elements after EPA finalized the Part 98 revision notices. The commenter did not identify the specific notice or proposed data elements that were of concern. Response: EPA has decided to undertake a separate action to determine the confidentiality status for data elements reported under subparts I, L, W, DD, SS, RR, UU, and QQ. As anticipated by some of the commenters, we made significant changes (both in number and substance) to the reporting requirements between proposal and finalization of these subparts. For instance, we added approximately 300 new data elements. Further, because EPA made substantive revisions to the subparts in response to comment ( e.g. , revisions to the measurement and calculation methodologies), the revised and added data elements differ significantly from the data elements that were included in the July CBI proposal for these subparts. In light of the above, we have decided to re-propose confidentiality determinations for the data elements in subparts I, L, W, DD, SS, RR, UU, and QQ. We plan to issue this re-proposal and finalize the confidentiality determinations for the data elements before the March 31, 2012 reporting deadline for these subparts. 4 4 Facilities subject to 40 CFR part 98, subpart RR must submit requests for exemption as a Research and Development Project or their proposed Monitoring, Reporting and Verification Plans in 2011. Since these documents likely will be submitted before the final confidentiality determinations for subpart RR are made, EPA will evaluate individual CBI claims regarding these two submittals on a case-by-case basis, in accordance with the existing CBI regulations in 40 CFR part 2, subpart B, either upon EPA's receipt of these documents or upon receipt of a public request for the documents. For additional information regarding these data elements, see 75 FR 75060, December 1, 2011. However, EPA disagrees with the commenter who argued that EPA needed to allow additional time for comments on the July CBI proposals after finalization of the three proposed revisions to Part 98 covered by the CBI proposals ( i.e., those proposed in 75 FR 18455, April, 12, 2010, 75 FR 33950, June 15, 2010 and 75 FR 48744, August 11, 2010). The July 2010 CBI proposals included all data elements that were either revised or added in these proposed amendments. The final amendments made minor changes to certain proposed data elements, deleted data elements, and added 24 new data elements. A list of the new data elements are provided in the memorandum “Final Data Category Assignments and Confidentiality Determinations for Part 98 Reporting Elements” in Docket EPA-HQ-OAR-2009-0924 and on EPA's Web site, http://www.epa.gov/climatechange/emissions/CBI.html . Most of the changes to the reported data elements are editorial in nature ( e.g., clarifications to the existing requirements, changes to the rule citation, or corrections to cross-references) and, as revised, did not result in changes to the data category assignment or CBI determination for these data elements. Although the July 2010 CBI proposals did not specifically address the new data elements that were added when EPA finalized these three revision notices, the CBI proposals included proposed confidentiality determinations for data elements that are of the same types as these new data elements. Having proposed and sought comment on the confidentiality determinations and supporting rationales for the same types of data in the CBI proposals, EPA does not believe that additional time is necessary for comment on these 24 new data elements for which we are finalizing determinations in this action. Based on the comments received, we are able to include in this action final confidentiality determinations for these 24 data elements consistent with the final determinations for the same types of data elements. Specifically, for each of the 24 data elements, we have identified the same type of data elements that were included in the July 2010 CBI proposals. We have assigned each of the 24 new data elements to the category with the same type of data elements, and applied the final confidentiality determinations for the assigned category to the new data element. Where a new data element is the same type as a data element for which EPA has made an individual confidentiality determination (as opposed to a categorical determination), EPA has made the same individual determination for such new data element. The 24 data elements, their final CBI determinations, and rationales for these determinations (including examples of the same types of data elements covered in the July 2010 CBI proposals) are discussed in detail in Section II.B of this preamble for direct emitter source categories and Section II.C of this preamble for supplier source categories. 4. Inputs to Emission Equations Data Category Comment: EPA received many comments from industry and other stakeholders regarding our July 7, 2010 CBI proposed determination that data elements in the Inputs to Emission Equations category are emission data, as defined in 40 CFR 2.301(a)(2)(i), that are ineligible for confidential treatment. Many commenters from industry disagreed with this determination. These commenters were concerned that public availability of these data elements would harm their competitive position. Other commenters supported our proposal and stated that transparency was important for building public confidence in the accuracy of the reported data and for enabling meaningful public comment on any future Climate Change policy. Response: In the July 2010 CBI proposals, EPA proposed that the data elements in the Inputs to Emission Equations category are emission data under 40 CFR 2.301(a)(2)(i). Under the Clean Air Act section 114(c), EPA cannot protect emission data as confidential business information. EPA received comments raising serious concerns regarding potential harmful consequences from public availability of these data elements. EPA concluded that some of these comments warrant more extensive evaluation. For this reason, EPA decided not to finalize the confidentiality determination for the data elements in the direct emitter data category Inputs to Emission Equations in this action. Instead, we recently published a “Call for Information: Information on Inputs to Emission Equations under the Mandatory Reporting of Greenhouse Gases Rule” that solicits additional information to help with the more in-depth evaluation relative to Inputs to Emission Equations (see 75 FR 81366, December 27, 2010). In addition, EPA recently published an Interim Final notice to defer reporting of these data elements on a short-term basis (75 FR 81338, December 27, 2010) and a proposal to further defer reporting of these data elements for reporting years 2011, and 2012 until March 31, 2014 (75 FR 81350, December 27, 2010). As explained in these notices, EPA concluded that it should complete its evaluation of these data elements and make final confidentiality determinations for the data elements in this category before collecting such data to avoid possibly causing unnecessary and unintentional, but irreparable, harm which reporters allege could occur if Inputs to Emission Equations were made publicly available. In the July 7, 2010 CBI proposal, EPA defined the data elements in the Inputs to Emission Equations category as data elements that are “inputs to equations specified in Part 98 for calculating emissions to be reported by direct emitters * * * and are used by the reporting direct emitting sources to calculate their annual GHG emission under Part 98” (75 FR 39094 July 7, 2010). However, in preparing the interim final and proposed deferral notices described above, EPA noted that the July 2010 CBI proposals inadvertently included in the Inputs to Equations category 69 data elements that are information related to emissions calculations but are not the actual inputs specified in any Part 98 emission calculation. For example, a subpart may require that reporters complete a particular calculation for each unit across a facility. In this circumstance, a reporter would gather necessary data and complete the calculation for each unit. Although Part 98 specifies that reporters must complete the calculation for each unit, the actual number of units would not be an input to the emission equation based on our description of the Inputs to Equations category. Thirty-seven data elements, listed below, were moved out of the Inputs to Equations category because after further consideration, we determined the frequency of measurement that is prescribed in the “Calculating GHG emissions” sections differs from that of the data element that is reported. For example, in Equation Y-1a in 98.253(b)(1)(ii)(a), “CC p ”, 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 CO 2 concentration for each flare (reported under 40 CFR 98.256(e)(7)). • Annual average concentration of carbon containing compound other than CO 2 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 %CO 2 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 %O 2 reported by refineries (reported under 40 CFR 98.256(f)(8)). • Annual average value of %O oxy reported by refineries (reported under 40 CFR 98.256(f)(8)). • Annual average value of %CO 2 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 %N 2oxy reported by refineries (reported under 40 CFR 98.256(f)(9)). • Annual average value of %N 2 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 CH 4 concentration data used to calculate CH 4 liberated from degasification systems average from daily data (C) (reported under 40 CFR 98.326(i)). • Quarterly CH 4 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 CH 4 concentration of landfill gas collected for destruction (reported under 40 CFR 98.346(i)(2)). • Monthly average temperature at which flow is measured for landfill gas collected for destruction (reported under 40 CFR 98.346(i)(3)). • Monthly average pressure at which flow is measured for landfill gas collected for destruction (reported under 40 CFR 98.346(i)(3)). • Cumulative volumetric biogas flow for each week that biogas is collected for destruction (if using daily sampling) (reported under 40 CFR 98.356(d)(2)). • Weekly average CH 4 concentration for each week that biogas is collected for destruction (if using daily sampling) (reported under 40 CFR 98.356(d)(3)). • Weekly average temperature at which flow is measured for biogas collected for destruction (if using daily sampling) (reported under 40 CFR 98.356(d)(4)). • Weekly average moisture content for each week at which flow is measured for biogas collected for destruction (if using daily sampling) (reported under 40 CFR 98.356(d)(5)). • Weekly average pressure for each week at which flow is measured for biogas collected for destruction (if using daily sampling) (reported under 40 CFR 98.356(d)(6)). Because the 69 data elements are not inputs to emission equations, we did not include these data elements in the December 27, 2010 deferral actions described above. At that time, we noted that “The list of inputs to equations is slightly different than what was proposed in the July 7, 2010 CBI proposal. Reporting elements included in this category are values used by reporters to calculate equation outputs” (75 FR 81350, December 27, 2010). In this action, we reassigned each of the 69 data elements that are not the actual inputs to equations specified in Part 98 to an appropriate direct emitter data category based on the type and characteristics of each data element. As a result, these data elements are no longer in the Inputs to Equations category but are in categories with the same types of data elements. Because the July 2010 CBI proposals included for comment proposed determinations and supporting rationales for data elements that are of the same types as these 69 data elements, we believe that it is appropriate for us to take final action on the confidentiality determinations for these reassigned data elements. Specifically, where we have assigned a data element to a data category with a categorical determination, we applied the final confidentiality determination for the assigned category to the new data element. Where a new data element is assigned to a data category without a categorical confidentiality determination, we identified the same type of data element(s) in that category that were covered by the CBI proposals, and we applied the confidentiality determination for the same type of data elements to the reassigned data element. For a list of these reassigned data elements, the category to which they were assigned, and their final confidentiality status, and examples of the same type of data element indentified in the particular category, see Table C in the memorandum “Final Data Category Assignments and Confidentiality Determinations for Part 98 Reporting Elements” in Docket EPA-HQ-OAR-2009-0924 and on EPA's Web site (see http://www.epa.gov/climatechange/emissions/CBI.html ). 5. Categorical Determinations for the Direct Emitter Categories Unit/Process Static Characteristics and Unit/Process Operating Characteristics That Are Not Inputs to Emission Equations Comment: In the July 2010 CBI proposals, we proposed that all the data elements in the direct emitter categories Unit/Process Static Characteristics that are Not Inputs to Emission Equations and Unit/Process Operating Characteristics that are Not Inputs to Emission Equations would be non-CBI. In these proposals, we stated that the disclosure of the data elements in these data categories would be unlikely to cause competitive harm and also noted that some of the data elements were already available from other public sources. Several commenters expressed concern that EPA had not fully evaluated the potential harm of public availability of some of the data elements in these two categories and recommended that we re-evaluate the confidentiality determinations for these data elements in these two data categories. Some commenters disagreed with our conclusion that much of the data in these categories was already publicly available through other sources. Some commenters identified specific data elements and provided supporting rationale explaining why they should be eligible for confidential treatment. However, most commenters provided only broad statements that did not identify specific data elements or provide detailed supporting rationale, but instead expressed concern that disclosure of data elements in these categories could cause potential harm to some reporters. Response: In evaluating the comments submitted, EPA determined that the comments raised issues that warranted additional consideration. Because many of the comments did not specify the data elements that were of concern, EPA decided to re-evaluate each data element in these two data categories to ensure that concerns were fully addressed. As a result of our re-evaluation, EPA decided not to make the proposed categorical determination that all data elements in these two categories are non-CBI and has determined that some of the data elements assigned to these data categories are eligible for confidential treatment. This decision was based on new information collected by the Agency and/or provided by commenters. For the summary of the comments and a detailed discussion of the rationale for final determinations for the data elements in these categories, see Sections II.B.6 and II.B.7 of this preamble. 6. Timing of the CBI Proposal Comment: Several commenters expressed concern regarding the timing of the July 7, 2010 CBI proposal. These commenters stated that EPA should have addressed CBI in the April 10, 2009 proposal for the GHG Reporting Rule (74 FR 16448). They asserted that EPA's decision not to address CBI in the original proposal for the GHG Reporting Rule negatively affected their ability to properly evaluate Part 98 when it was initially proposed. Some commenters stated that they advocated for calculation methods that relied on mass balance equations because they believe that the inputs to those equations would be held confidential. Some commenters asserted that they would have supported third party verification had they known that reported data would not be afforded confidential treatment. In certain circumstances, the CAA allows parties to petition EPA to reconsider aspects of newly enacted regulations implementing the CAA. Some industries petitioned EPA regarding certain aspects of the Part 98 requirements. Some commenters stated that EPA should have published the CBI proposal before discussing these petitions with industry and that EPA's decision not to do so prejudiced the industries that participated in those discussions. Response: We disagree with commenters who stated that they did not have sufficient notice regarding types of data that would be eligible for confidential treatment because the CBI issue was not addressed during the April 10, 2009 proposal for the GHG Reporting Rule. We also disagree with commenters who suggested the timing of the CBI proposal prejudiced those reporters who entered into discussions with EPA regarding petitions for reconsideration of certain Part 98 requirements prior to the publication of the July 2010 CBI proposals. We stated in the preamble to the April 10, 2009 proposal that “emission data collected under CAA sections 114 and 208 cannot be considered CBI” (see 74 FR 16463, April 10, 2009). EPA's CBI regulations define emission data at 40 CFR 2.301; EPA used this definition to determine which Part 98 data elements are emission data and therefore not eligible for confidential treatment pursuant to CAA section 114(c). For data that do not meet the definition of emission data, EPA considered the confidentiality determination criteria at 40 CFR 2.208 to make the CBI determinations. Both the emission data definition at 40 CFR 2.301 and the confidentiality determination criteria at 40 CFR 2.208 have been part of EPA's CBI regulations since the regulations were first promulgated in 1976. Furthermore, the comments on the original Part 98 proposal received in 2009 indicate that the commenters were aware that section 114(c) of the CAA requires that emission data cannot be protected. As evidenced by the comments, commenters were aware 15 months before EPA's publication of the July 7, 2010 CBI proposal that CAA section 114(c) requires emission data to be made publicly available (See 74 FR 56260 and 56287, October 30, 2009). Commenters who entered into discussions with EPA regarding petitions in 2010 would also have been aware of CAA section 114(c) at the time they made these agreements. In light of EPA's long-standing regulatory provisions, we reject commenters' claim that they had insufficient notice regarding EPA's approach to confidential treatment of data or that reporters who entered into settlement agreements were prejudiced. EPA notes that many of the commenters who expressed concern with the timing of the CBI proposal were primarily concerned with EPA's proposal that data in the Inputs to Emissions Equations category would be publicly available. As discussed in more detail above, EPA is not finalizing in this action the confidentiality status for the data in the Inputs to Emission Equations category. For additional information on inputs to equations, please see Section II.A.4 of this preamble. 7. Extent To Which CEMS Can Be Used to Reduce the Number of Data Elements Disclosed to the Public Comment: In the preamble to the July 7, 2010 CBI proposal, we noted that facilities who choose to use continuous emission monitoring systems (CEMS) may have fewer CBI concerns. As these facilities use CEMS to monitor emissions, we observed that certain data elements would not be used as inputs to emission equations, which we had proposed to be emission data and therefore subject to disclosure under CAA section 114(c). In addition, facilities using CEMS would report fewer data elements than those using emission equations (75 FR 39109, July 7, 2010). In that preamble, we requested comment on the extent to which CEMS could be used to relieve industry concerns regarding public disclosure of sensitive data. Several commenters agreed that CEMS may be a viable option for many sources because CEMS for measuring CO 2 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 CO 2 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 N 2 O CEMS. However, a CEMS option for other GHGs, such as CH 4 , SF 6 , and fluorinated GHGs, is not currently included in Part 98. EPA agrees with commenters that CEMS may not be practicable feasible at this time for all sources covered by the reporting rule, and therefore may not be an option in all circumstances where a reporter is concerned about the public disclosure of data they consider sensitive. We also recognize that many sources did not elect to use CEMS during the 2010 reporting period and therefore would not be able to use CEMS to mitigate their CBI concerns for the 2010 reporting year. However, as noted in Section II.A.4 of this preamble, EPA is addressing these concerns through a separate process. EPA has published an Interim Final Rule that will defer reporting of data elements in the Inputs to Emission Equation data category for the 2010 annual report (75 FR 81338, December 27, 2010) and a proposal to defer reporting of these data elements until 2014 (75 FR 81350, December 27, 2010). EPA also issued a notice announcing a call for information soliciting additional information so that EPA can adequately evaluate additional monitoring and verification approaches that would not use sensitive data elements as Inputs to Emission Equations (75 FR 81366, December 27, 2010). 8. Duration of Confidentiality Treatment Comment: In the July 7, 2010 CBI proposal, EPA requested comment on whether there should be a time limit on protection of data determined to be CBI. A few commenters asserted that confidential treatment of CBI should be limited to a given period of time and stated that EPA should use its authority under 40 CFR 2.208(a) to disclose data when disclosure would no longer cause substantial harm to the reporters' competitive position. These commenters argued that not all of the data determined to be CBI may warrant permanent treatment as confidential. Some commenters recommended that EPA develop a process to establish the duration of the confidential status of each type of information. One commenter recommended that CBI status automatically lapse after two years unless a reporter submits a request to extend the duration of CBI protection and makes a satisfactory showing that disclosure of the data would cause substantial harm to its competitive position. This commenter suggested that a two year period was a reasonable time period because of the rate at which the market changes. However, most commenters stated that CBI status should not be time-limited. Many stated that data designated as CBI remain relevant and sensitive for many years after the reporting year has passed and that its disclosure at any time likely would cause competitive harm to the reporting entity. One commenter stated that industry marketing trends play out over long time frames and that competitors value market, process, and production data even after five or 10 years. One commenter recommended that CBI data remain protected as CBI for the life of the reporting entity. Response: In the July 7, 2010 CBI proposal, we recognized that market conditions change such that data once considered CBI may become less sensitive over time. Therefore, we requested comment on whether there were any particular Part 98 data elements that would become less sensitive over time, the amount of time after which they would no longer be sensitive, and the reason for the change in the sensitivity of the data elements. Although some commenters recommended that confidentiality determinations should be time limited, the commenters did not provide information that would provide sufficient basis for EPA to limit the determinations made in this action for any particular data elements to a specific period of time. Although a commenter suggested that the confidential treatment should expire after two years, the commenter did not provide any specific information on what changes in market conditions after this two year period would result in data no longer satisfying the criteria for confidential treatment. We note that other CBI determinations made by EPA are generally not time-limited. Furthermore, today's amendment to 40 CFR 2.301 ( Special rules governing certain information obtained under the Clean Air Act ) provides procedures for EPA to modify a prior confidentiality determination (see 40 CFR 2.301(d)(4)) should certain Part 98 data no longer be entitled to confidential treatment because of changes in the applicable law or newly discovered or changed facts. This provision reflects the requirements in CBI regulations at 40 CFR 2.205(h) for modifying prior determinations for other information. We do not see a need to establish a process different from that which we had proposed for declassifying CBI. B. Direct Emitters 1. Major Changes to Determinations We are finalizing our category assignments for data elements in the direct emitter subparts specified in Section I.C of this preamble for 10 of the 11 direct emitter data categories and our confidentiality determinations for these 10 direct emitter data categories. As discussed in Section II.A.4 of this preamble, the confidentiality determinations for the data elements in the Inputs to Emission Equations category are not being finalized in this action. Further, as discussed in Section II.A.5 of this preamble, for the Unit/Process Static Characteristics that are Not Inputs to Emission Equations and the Unit/Process Operating Characteristics categories that are Not Inputs to Emission Equations, EPA is making final confidentiality determinations for each data element within these categories, rather than finalizing the category-wide determinations proposed in the CBI proposals. The major changes since our CBI proposals to the 10 direct emitter data categories and the confidentiality determinations finalized in this action are summarized below. • We have assigned certain data elements for reporting process emissions ( i.e., the amount of GHG generated by a production facility) at 40 CFR 98.76(a) and (b)(1), 40 CFR 98.166(a)(1) and (b)(1), and 40 CFR 98.196(a) and (b)(1) as follows for the reasons specified in Section II.B.3 of this preamble: —For facilities that collect a portion of the CO 2 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 CO 2 e calculated using Equation A-1 (reported under 40 CFR 98.3(c)(12)(i)). —Annual emissions of biogenic CO 2 , expressed in metric tons (excluding biogenic CO 2 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 CO 2 (excluding biogenic CO 2 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 CO 2 (including biogenic CO 2 emissions from 40 CFR part 75 units and excluding biogenic CO 2 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 CH 4 (reported under 40 CFR 98.3(c)(12)(iii)(C)). —Annual emissions from each applicable source category, expressed in metric tons of N 2 O (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 CO 2 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 °F and 14.7 psia or 60 °F and 14.7 psia (reported under 40 CFR 98.256(e)(8). • Although we proposed non-CBI determinations for the Unit/Process Static Characteristics that are Not Inputs to Emission Equations data category, we have made individual confidentiality determinations for data elements in this category in this final action. • We have decided not to make final confidentiality determinations for the following 21 elements in the Unit/Process Static Characteristics that are Not Inputs to Emission Equations for the reasons described in Sections II.B.6 of this preamble. These data elements are as follows: —The annual ferroalloy product production capacity (reported under 40 CFR 98.116(a)). —The annual lead product production capacity reported by facilities using CEMS (reported under 40 CFR 98.186(a)(2)). —The annual lead product production capacity for facilities not using CEMS (reported under 40 CFR 98.186(b)(3)). —The annual lead product production capacity for each smelting furnace reported by facilities not using CEMS (reported under 40 CFR 98.186(b)(3)). —The annual lime production capacity (reported under 40 CFR 98.196(b)(15)). —The type of nitric acid process (reported under 40 CFR 98.226(k)). —The maximum rated throughput capacity of the catalytic cracking unit, traditional fluid coking, or catalytic reforming unit (reported under 40 CFR 98.256(f)(3)). —The maximum rated throughput of the sulfur recovery plant (reported under 40 CFR 98.256(h)(2)). —The maximum rated throughput of each coke calcining unit (reported under 40 CFR 98.256(i)(2)). —The annual phosphoric acid permitted production capacity (reported under 40 CFR 98.266(b)). —The annual phosphoric acid production capacity for each wet-process phosphoric acid process line (reported under 40 CFR 98.266(f)(3)). —The annual production capacity of silicon carbide reported by facilities using CEMS (reported under 40 CFR 98.286(a)(3)). —The annual production capacity of silicon carbide reported by facilities not using CEMS (reported under 40 CFR 98.286(b)(3)). —The annual production capacity of soda ash for each manufacturing line reported by facilities using CEMS (reported under 40 CFR 98.296(a)(3)). —The annual production capacity of soda ash reported by facilities not using CEMS (reported under 40 CFR 98.296(b)(4)). —The annual production capacity of titanium dioxide reported by facilities using CEMS (reported under 40 CFR 98.316(a)(4)). —The annual production capacity of titanium dioxide for each production line reported by facilities not using CEMS (reported under 40 CFR 98.316(b)(5)). —The description of the gas collection system at an underground coal mine (reported under 40 CFR 98.326(q)). —The annual zinc product production capacity reported by facilities using CEMS (reported under 40 CFR 98.336(a)(1)). —The annual zinc product production capacity reported by facilities not using CEMS (reported under 40 CFR 98.336(b)(2)). —The description and/or diagram of the industrial wastewater treatment system (reported under 40 CFR 98.356(a)). • We have added one new data element to the Unit/Process Static Characteristics Not used as Inputs to Emission Equations category for the reasons specified in Section II.B.6 of this preamble. This data element requires municipal landfills to report a description of the aeration system used at their landfill, including aeration blower capacity (reported under 40 CFR 98.346(d)(1)) and is determined to be non-CBI. • We have moved one data element from the Facility and Unit Identifier Information category to the Unit/Process Static Characteristics that are Not Inputs to Emission Equations data category and have made a determination that this data element is non-CBI for the reasons specified in Section II.B.6 of this preamble. This data element requires facilities to report the type of combustion unit (reported under 40 CFR 98.36(b)(2)). • We have moved 13 data elements from Inputs to Emission Equations to the Unit/Process Static Characteristics that are Not Inputs to Emission Equations category and made the following determinations for the reasons specified in Section II.B.6. These data elements and the final determinations are as follows: —Number of abatement technologies used at adipic acid production plants (reported under 40 CFR 98.56(e)) is not CBI. —Number of cement kilns (reported under 40 CFR 98.86(b)(4)) is not CBI. —Total number of glass furnaces (reported under 40 CFR 98.146(b)(8)) is not CBI. —Total number of lead smelting furnaces (reported under 40 CFR 98.186(b)(5)) is not CBI. —Number of nitric acid trains (reported under 40 CFR 98.226(f)) is not CBI. —Number of wet-process phosphoric acid lines (reported under 40 CFR 98.266(f)(7)) is not CBI. —Number of separate chloride process lines located at titanium dioxide production facilities (reported under 40 CFR 98.316(b)(14) is not CBI. —Number of Waelz kilns used for zinc production (reported under 40 CFR 98.336(b)(4)) is not CBI. —Number of electrothermic furnaces used for zinc production (reported under 40 CFR 98.336(b)(5)) is not CBI. —Total number of delayed coking units (reported under 40 CFR 256(k)(3)) is not CBI. —The typical drum or vessel outage (reported under 40 CFR 98.256(k)(3)) is CBI. —The number of delayed coking drums or vessels (reported under 40 CFR 98.256(k)(3)) is CBI. —The number of delayed coking drums in a set (reported under 40 CFR 98.256(k)(4)) is CBI. • We have double listed five data elements in the Unit/Process Static Characteristics that are Not Inputs to Emission Equations category and in the Inputs to Emission Equations category. For those reporters who do not use the data elements in the specified equations, the data elements are in the Unit/Process Static Characteristics that are Not Inputs to Emission Equations. We have made the following determinations and for the reasons specified in Section II.B.6: —Number and type of each source of equipment leaks at petroleum refineries when reported by facilities not using Equation Y-21 to calculate emissions (reported under 40 CFR 98.256(n)(3)) is not CBI. —Year in which a closed municipal landfill last accepted waste and year an open municipal landfill expects to close, where reported by landfills that do not use Equation HH-3 (reported under 40 CFR 98.346(a)) is not CBI. —Capacity of the municipal landfill, where reported by open landfills and by closed landfills that do not use Equation HH-3 (reported under 40 CFR 98.346(a)) is not CBI. —Year in which a closed industrial landfill last accepted waste and year an open industrial landfills expects to close, where reported by landfills that do not use Equation TT-4 (reported under 40 CFR 98.466(a)(3)) is not CBI. —Capacity of the industrial landfill, where reported by open landfills and by closed landfills that do not use Equation TT-4 (reported under 40 CFR 98.466(a)(4)) is not CBI. • Although we proposed a non-CBI determination for all data in the Unit/Process Operating characteristics that are not Inputs to Emission Equations category, we have made individual confidentiality determinations for the data elements in this category in this final action. Specifically, we have determined that the following data elements in this category qualify as CBI as discussed in Section II.B.7 of this preamble: —The reason for submitting a Best Available Monitoring Methods (BAMM) extension request (reported under 40 CFR 98.3(d)(2)(ii)(C)). —The reason why equipment was not or could not be obtained and installed during a planned shutdown between October 30, 2009 and April 1, 2010 as reported in a BAMM extension request (reported under 40 CFR 98.3(d)(2)(ii)(E)). —Planned installation date for monitoring equipment as reported in a BAMM extension request (reported under 40 CFR 98.3(d)(2)(ii)(F)). —The anticipated date on which a facility applying for a BAMM extension will begin using the monitoring methods specified in Part 98 (reported under 40 CFR 98.3(d)(2)(ii)(F)). —The sampling analysis results of carbon content of feedstock as determined from QA/QC supplier data under 40 CFR 98.74(e) by ammonia manufacturing facilities (reported under 40 CFR 98.76(b)(6)). —The mass fraction of each sample analyzed for all tests used to verify the carbonate-based mineral mass fraction of raw materials charged to glass manufacturing facilities (reported under 40 CFR 98.146(b)(5)(iii)). —The explanation of change greater than 30 percent in a magnesium production facility's cover gas usage rate (reported under 40 CFR 98.206(g)). —The types of materials loaded that have an equilibrium vapor phase concentration of CH 4 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 %O oxy 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 %N 2oxy 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 %CO 2 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 %O 2 reported by refineries (40 CFR 98.256(f)(8)). —Annual average value of %CO 2 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 %N 2 exhaust reported by refineries (reported under 40 CFR 98.256(f)(9)). • We have double listed six data elements in the Unit/Process Operating Characteristics that are Not Inputs to Emission Equations category and in the Inputs to Emission Equations category. For those reporters who do not use the data elements in the specified equations, the data elements are in the Unit/Process Operating Characteristics that are Not Inputs to Emission Equations and have the following determinations for the reasons specified in Section II.B.7 of this preamble: —Annual volume of recycled tail gas (if not used to calculate the recycling correction factor (reported under 40 CFR 98.256(h)(5)) is CBI. —Annual average mole fraction of carbon in the tail gas (if not used to calculate recycling correction factor) (reported under 40 CFR 98.256(h)(5)) is CBI. —Weekly average temperature at which flow is measured for biogas collected for destruction (if using daily sampling) (reported under 40 CFR 356(d)(4)) is not CBI. —Weekly average moisture content for each week at which flow is measured for biogas collected for destruction (if using daily sampling) (reported under 40 CFR 356(d)(5)) is not CBI. —Weekly average pressure for each week at which flow is measured for biogas collected for destruction (if using daily sampling) (reported under 40 CFR 98.356(d)(6)) is not CBI. —Surface area at the start of the reporting year for the landfill sections that contain waste and that are associated with the selected cover type for facilities that do not use a landfill gas collection system (reported under 40 CFR 98.466(e)(2)) is not CBI. • We have moved seven data elements from the Calculation Methodology and Methodological Tier category to the Test and Calibration Methods category for the reasons specified in Section II.B.8 of this preamble: —The basis for the unit-specific factor ( i.e., select from average of multiple source tests; single source test within last 5 years; single source test more than 5 years ago; source test of identical unit at same facility) (40 CFR 98.256(i)(8)). —The basis for the CO 2 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 CH 4 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 CH 4 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 CH 4 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 CO 2 captured for use on site (40 CFR 98.196(b)(17)(i)) to be in the Unit/Process Operating Characteristics that are Not used as Inputs to Emissions Equations Data category, we have moved this data element to the Production/Throughput Data that are Not Inputs to Emission Equations Data category for the reasons specified in Section II.B.9 of this preamble. The rationale for these changes can be found in Sections II.B.2 through II.B.10 of this preamble and in the “Proposed Confidentiality Determinations and Data Handling Procedures for Part 98 Data: Responses to Public Comments” (available in the Docket EPA-HQ-OAR-2009-0924 and on the Web site ( http://www.epa.gov/climatechange/emissions/ghgrulemaking.html ). A list of all the direct emitter data elements and their category assignment under this final action is provided, by subpart and data category, in a memorandum (see “Final Data Category Assignments and Confidentiality Determinations for Part 98 Reporting Elements” in Docket EPA-HQ-OAR-2009-0924) and on the Web site ( http://www.epa.gov/climatechange/emissions/ghgrulemaking.html ). 2. Facility and Unit Identifier Information Category Comment: Only a few commenters submitted comments on this data category. The majority of those providing comments agreed with EPA's proposed determination that the data elements in this category are not eligible for confidential treatment because they meet the definition of emission data in 40 CFR 2.301(a)(2)(i). One commenter agreed with EPA's determination that the phrase “identity * * * of any emission” in 40 CFR 2.301(a)(2)(i)(A) refers not only to the names of the pollutants being emitted, but also includes other identifying information, such as plant name, address, city, state, zip code, emission point or device description, and North American Industry Classification System (NAICS) code. Although most commenters agreed with the proposed determination for this category, one commenter stated that the customer meter number and combustion unit identifiers reported in accordance with 40 CFR 98.36(c)(1) and (c)(3) should be held as confidential. Response: The few commenters who disagreed with our proposed determination for this data category did not provide any rationale or facts explaining why the data in this category do not meet the definition of emission data at 40 CFR 2.301(a)(2)(i), as we proposed in the July CBI proposal. Rather, they claimed that the data elements in this category are sensitive and therefore, qualify as CBI. However, CAA section 114(c) does not afford confidential treatment to emission data, even if they were CBI. In any case, except for the comments discussed below on certain specific data elements, the commenters made general and conclusory CBI claims; they did not provide facts or rationales explaining why any of the data elements in this category are CBI. On the other hand, we note that many of the data elements assigned to the category are already available to the public through other sources. For example, the name and location of a facility and descriptions of emission units are included in construction and operating permits ( e.g., PSD and Title V permits). With respect to the specific comment on the customer meter number and combustion unit identifiers that were required under 40 CFR 98.36(c)(1) and (c)(3) at the time of CBI proposal, these data elements are no longer required to be reported under 40 CFR part 98, subpart C (see the amendments to this subpart published in 75 FR 79092, December 17, 2010). Therefore, according to the comment, there is no CBI concern. 3. Emissions Category New Data Elements: In this final action, we have added the following seven new data elements to this data category: • Annual emissions aggregated for all GHGs from all applicable source categories, expressed in metric tons of CO 2 e calculated using Equation A-1 (reported under 40 CFR 98.3(c)(12)(i)). • Annual emissions of biogenic CO 2 , expressed in metric tons (excluding biogenic CO 2 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 CO 2 (excluding biogenic CO 2 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 CO 2 (including biogenic CO 2 emissions from 40 CFR part 75 units and excluding biogenic CO 2 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 CH 4 (reported under 40 CFR 98.3(c)(12)(iii)(C)). • Annual emissions from each applicable source category, expressed in metric tons of N 2 O (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 CO 2 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 CO 2 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 CO 2 generated by a process are collected and therefore, not emitted to the atmosphere. In particular, these commenters noted that the annual CO 2 process emissions reported by ammonia production plants (see 40 CFR 98.76(b)(1)) may include CO 2 that is not released to the atmosphere because some ammonia plants collect CO 2 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 CO 2 generated by a process are collected and either used onsite ( e.g., urea manufacture) or transferred off site. In three subparts, 5 the CO 2 that is collected is reported as “CO 2 process emissions.” In those few situations where a reporter collects a portion of the CO 2 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 CO 2 generated by a process such that the CO 2 is emitted into the atmosphere, the data element remains in the Emissions Data Category. 5 40 CFR part 98, subpart G (Ammonia Manufacturing), subpart P (Hydrogen Production), and subpart S (Lime Manufacturing). 6 Please see Section II.B.8 for the discussion on the confidentiality determination for these data elements. As described above, some commenters expressed concern with our proposed determination, because they claimed that some of the data elements in this category are sensitive business information the disclosure of which could cause competitive business harm. However, these commenters did not provide any rationale or facts explaining why the data in this category do not meet the definition of emission data at 40 CFR 2.301(a)(2)(i), as we proposed in the July CBI proposal. Rather, they claimed that the data elements in this category are sensitive and therefore, qualify as CBI. However, CAA section 114(c) does not afford confidential treatment to emission data, even if they were sensitive. On the other hand, we note that data elements similar to the data elements included in this category are available to the public through other sources. For example, unit level emissions of certain pollutants are available through the National Emissions Inventory. We therefore conclude that our proposed determination for this data category is appropriate and finalize that determination in this action. 4. Calculation Methodology and Methodological Tier Category New Data Elements: EPA has added one new data element to this data category. This new data element requires refineries to indicate whether the annual volume of flare gas combusted and the annual average higher heating value of the flare gas were determined using standard conditions of 68 °F and 14.7 psia or the alternative conditions of 60 °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 CO 2 , N 2 O and CH 4 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 CO 2 , N 2 O and CH 4 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 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 the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-12930. Public record. Not legal advice.