[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Proposed Rules]
[Pages 43889-43892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18229]
[[Page 43889]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 2
[EPA-HQ-OAR-2009-0924; FRL-9179-4]
RIN 2060-AQ04
Proposed Confidentiality Determinations for Data Required Under
the Mandatory Greenhouse Gas Reporting Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental proposal.
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SUMMARY: This action supplements EPA's July 7, 2010 ``Proposed
Confidentiality Determinations for Data Required under the Mandatory
Greenhouse Gas Reporting Rule and Proposed Amendment to Special Rules
Governing Certain Information Obtained under the Clean Air Act''. In
this action, EPA is proposing confidentiality determinations for the
data elements proposed to be added or revised in the ``Proposed
Rulemaking: Revision of Certain Provisions of the Mandatory Reporting
of Greenhouse Gases Rule,'' also signed today. This action addresses
only the confidentiality of the new and revised data elements proposed
in the concurrent notice.
DATES: Comments. Comments must be received on or before August 26,
2010, or by September 10, 2010 if a public hearing is held (see below).
Public Hearing. EPA does not plan to conduct a public hearing
unless requested. To request a hearing, please contact the person
listed in the FOR FURTHER INFORMATION CONTACT section by August 3,
2010. Upon such request, EPA will hold the hearing on August 11, 2010
in the Washington, DC area starting at 9 a.m., local time. EPA will
provide further information about the hearing on its Web page if a
hearing is requested.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0924, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
online instructions for submitting comments.
E-mail: [email protected].
Fax: (202) 566-1741.
Mail: Environmental Protection Agency, EPA Docket Center (EPA/DC),
Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2009-0924, 1200
Pennsylvania Avenue, NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center, Public Reading Room, EPA West
Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC
20004. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0924. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Docket, EPA/
DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Air Docket is (202) 566-1742.
FOR FURTHER GENERAL INFORMATION CONTACT: Carole Cook, Climate Change
Division, Office of Atmospheric Programs (MC-6207J), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: (202) 343-9263; fax number: (202) 343-2342; e-mail
address: [email protected]. For technical information, contact the
Greenhouse Gas Reporting Rule Hotline at: http://www.epa.gov/climatechange/emissions/ghgrule_contactus.htm. Alternatively, contact
Carole Cook at 202-343-9263.
SUPPLEMENTARY INFORMATION: Additional Information on Submitting
Comments: To expedite review of your comments by Agency staff, you are
encouraged to send a separate copy of your comments, in addition to the
copy you submit to the official docket, to Carole Cook, U.S. EPA,
Office of Atmospheric Programs, Climate Change Division, Mail Code
6207-J, Washington, DC 20460, telephone (202) 343-9263, e-mail
[email protected].
Regulated Entities. This supplemental action affects entities
required to submit annual greenhouse gas (GHG) reports under 40 CFR
Part 98. The Administrator determined that Part 98 is subject to the
provisions of Clean Air Act (CAA) section 307(d). See CAA section
307(d)(1)(V) (the provisions of CAA section 307(d) apply to ``such
other actions as the Administrator may determine''). The Mandatory
Greenhouse Gas Reporting Rule and this action affect fuel and chemicals
suppliers, and direct emitters of GHGs. Affected categories and
entities include those listed in Table 1 of the preamble to the
``Proposed Confidentiality Determinations for Data Required under the
Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to
Special Rules Governing Certain Information Obtained under the Clean
Air Act'' (75 FR 39094).
Acronyms and Abbreviations. The following acronyms and
abbreviations are used in this document.
CAA Clean Air Act
CBI confidential business information
CFR Code of Federal Regulations
EPA U.S. Environmental Protection Agency
GHG greenhouse gas
U.S. United States
Table of Contents
I. General Information
A. Background
B. Proposed Changes to the Part 98 Reporting Requirements
C. Proposed Data Categories and Confidentiality Determinations
for the Proposed New and Revised Data Elements
D. Request for Comments
II. Statutory and Executive Order Reviews
[[Page 43890]]
I. General Information
A. Background
Under Part 98 of the final Mandatory Greenhouse Gas Reporting Rule
(74 FR 56259, October 30, 2009, and subsequent amendments), hereinafter
referred to as Part 98, EPA will collect data from facilities that
directly emit GHGs from their processes or stationary fuel combustion
sources (``direct emitters'') as well as upstream suppliers of fuels
and industrial GHGs (``suppliers'').
Following the publication of the proposed Mandatory GHG Reporting
Rule on April 10, 2009 (74 FR 16448), EPA received comments both
supporting and opposing the public release of data collected under Part
98. Industry commenters generally expressed concern that EPA would
disclose reported data that industry considers trade secrets or
confidential business information, hereinafter collectively referred to
as CBI. Other commenters favored disclosure of information, and some
argued that all of the information gathered under Part 98 should be
``emission data'' and hence not entitled to confidential treatment.
In response to these comments, EPA initiated a rulemaking to
establish the confidentiality status of Part 98 data elements and
procedures for handling Part 98 data. On July 7, 2010, EPA published
the ``Proposed Confidentiality Determinations for Data Required under
the Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to
Special Rules Governing Certain Information Obtained under the Clean
Air Act'' (75 FR 39094), herinafter referred to as the July 7, 2010
confidentiality proposal.
Concurrent to today's action, EPA signed the ``Proposed Rulemaking:
Revision of Certain Provisions of the Mandatory Reporting of Greenhouse
Gases Rule'' herinafter referred to as the Part 98 amendment proposal.
The Part 98 Amendments proposal, if finalized, would result in changes
to certain part 98 data elements. Because the July 7, 2010
confidentiality proposal was issued before the Part 98 amendment
proposal, it did not address the revised and new data elements in the
amendments proposal. This action contains EPA's proposed
confidentiality determination for the new and revised data elements
included in the Part 98 amendment proposal.
B. Proposed Changes to the Part 98 Reporting Requirements
As mentioned above, EPA proposed amendments to Part 98 that, if
finalized, would make clarifying and technical changes to reporting
requirements. Proposed revisions include allowing greater flexibility
or simplified calculation methods for certain sources, amending data
reporting requirements and definitions, and providing technical
corrections, clarifying and other amendments. The proposed amendments
include addition of new reporting requirements and deletion of certain
existing reporting requirements.
The proposed amendments include changes to the data elements
required by 40 CFR part 98, subpart A and the following Part 98
subparts promulgated in 2009:
Subpart C, General Stationary Fuel Combustion Sources;
Subpart D, Electricity Generation;
Subpart F, Aluminum Production;
Subpart G, Ammonia Manufacturing;
Subpart V, Nitric Acid Production;
Subpart X, Petrochemical Production;
Subpart Y, Petrochemical Production;
Subpart OO, Suppliers of Industrial Greenhouse Gases; and
Subpart PP, Suppliers of Carbon Dioxide.
After consideration of public comment, EPA intends to issue a final
action.
C. Proposed Confidentiality Determinations for the Proposed New and
Revised Data Elements
In the July 7, 2010 confidentiality proposal, EPA described the
methodology and rationale for the proposed confidentiality
determinations. To make the proposed determinations, EPA first grouped
the Part 98 data elements into 22 data categories (11 direct emitter
data categories and 11 supplier data categories) and then proposed
confidentiality determinations on a category basis. Exceptions to this
approach were made for three of the supplier data categories, where
confidentiality determinations were made for individual data elements
within the category rather than by category. For the list of all 22
data categories and brief descriptions of the data elements within each
category, please see Section II.C (for direct emitter data categories)
and Section II.D (for supplier data categories) of the July 7, 2010
confidentiality proposal.
As discussed in Section I.B of today's supplemental proposal, in
the Part 98 amendment proposal, EPA proposed amending part 98 to add,
delete and revise certain data elements. Today's action contains EPA's
proposed confidentiality determination for the proposed new and revised
data elements.
Consistent with the approach set forth in the July 7, 2010
confidentiality proposal, each new or revised data element is assigned
to one of the 22 data categories based on the type and characteristics
of the data element. Because the scopes of the existing data categories
are sufficient to cover the proposed new data elements, no new data
category is proposed. For a list of the new and revised data elements
addressed in the Part 98 amendments proposal and their assigned data
categories, please see Memorandum ``Data Category Assignments for the
Proposed Revisions to the Part 98 Reporting Requirements'' in Docket
EPA-HQ-OAR-2009-0924 and on the Web site (http://www.epa.gov/climatechange/emissions/CBI.html.)
As mentioned above, EPA proposed confidentiality determinations for
part 98 data on a category basis except for three supplier categories,
where confidentiality determinations were made for individual data
elements within the category rather than by category. These three
supplier data categories are: ``Greenhouse Gases Reported'',
``Production/Throughput Quantities and Composition'', and ``Unit/
Process Operating Characteristics''. Except for data elements assigned
to the three supplier data categories listed above, EPA proposes in
this supplemental notice to apply the confidentiality determination
(and supporting rationales) for the data category to which the proposed
new or revised data element is assigned.
For each revised data element, EPA assessed whether the proposed
revisions to the data element changed the existing data category
assignment. The proposed changes to existing data elements were
generally minor changes to correct references, clarify the reporting
requirement, or simplify reporting. None of the proposed revisions to
the existing data elements affect the existing category assignments for
these data elements.
The proposed amendments to part 98 would add two new data elements
to the ``Production/Throughput Quantities and Composition'' supplier
data category and three new data elements to the ``Unit/Process
Operating Characteristics'' supplier data category. As previously
mentioned, confidentiality determinations were proposed for individual
data elements within these categories rather than on a category basis.
Similarly, EPA evaluated individually the confidentiality status of the
proposed new data elements assigned to these two data categories.
[[Page 43891]]
In the July 7, 2010 confidentiality proposal, EPA proposed to
determine that none of the Part 98 supplier data qualify as ``emission
data'' as that term is defined at 40 CFR 2.301(a)(i).\1\ EPA then
proposed CBI determinations for supplier data by considering the
confidentiality determination criteria at 40 CFR 2.208. In particular,
EPA focused on whether release of the data is likely to cause
substantial harm to the business's competitive position. See 40 CFR
2.208(e)(1). Consistent with this approach, EPA proposes the following
CBI determinations for the proposed new supplier data elements in the
``Production/Throughput Quantities and Composition'' and ``Unit/Process
Operating Characteristics'' supplier data categories.
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\1\ Section 114(c) of the CAA requires that ``emission data''
shall be publicly available.
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One new data element added to the ``Production/Throughput
Quantities and Composition'' data category requires facilities that
produce fluorinated GHGs to report the concentration of each
fluorinated GHG contained in their products. These data would be
reported in a one-time report submitted by fluorinated GHG production
facilities by March 31, 2011. The other new data element assigned to
this data category would require fluorinated GHG production facilities
to submit a revised report of the concentrations of fluorinated GHGs
when changes are made to the compositions of their products. EPA
proposes that these data elements be considered CBI. Like the other
product specific data elements included in this data category in the
July 7, 2010 confidentiality proposal, these two data elements would
provide sensitive information on product composition that is not
already publicly available and would likely harm the competitive
position of fluorinated GHG producers. For more detailed rationales in
support of our proposed CBI determination for these two new data
elements, please see Section II.D.3 of the July 7, 2010 confidentiality
proposal, which discusses the ways in which product-specific production
quantities and product composition data could be used by competitors of
a reporting facility to gain insights and develop market strategies
that would harm the reporter's competitive position.
The three new data elements added to the data category for ``Unit/
Process Operating Characteristics'' consist of the following data
elements:
The location of the mass flow meter in the process chain
in relation to the points of CO2 stream capture,
dehydration, compression, and other processing (40 CFR part 98, subpart
PP).
The location of the volumetric flow meter in the process
chain in relation to the points of CO2 stream capture,
dehydration, compression, and other processing (40 CFR part 98, subpart
PP).
Date on which changes were made to fluorinated GHG
concentrations in a product or the date on which production of a new
product commenced (40 CFR part 98, subpart OO).
The location of flow meters does not provide information on the
design or operation of a facility's production processes or the design
or operation of any CO2 compression, dehydration, or other
purification process that may be present at the facility. Facilities
are not required to provide detailed and potentially sensitive
information about their facilities, such as descriptions or diagrams of
their processes. Rather reporters are only required to report limited
information on the location of a flow meter in terms of its position
relative to other processes, such as the CO2 stream capture,
dehydration, compression, and other processing. Similarly, the date on
which manufacture of a new product commenced or changes were made to
the composition of a fluorinated GHG product does not disclose the
actual composition of the product, the raw materials used to make the
product, the method of manufacture, or the efficiency of the
manufacturing process. The manufacture of a new product and changes to
existing product lines is often publicly available through company
marking materials and other sources (e.g., publication or revisions to
Material Safety Data Sheets). Since the disclosure of these data
elements is unlikely to harm the competitive position of the reporter,
we propose these three data elements would not be entitled to
confidential treatment.
When finalized, the changes to the data elements may not be exactly
the same as those proposed in the Part 98 amendment proposal; however,
we expect that any revisions to data elements in the final amendment
would still logically fall into the same or another data category that
is addressed in the confidentiality proposal and would therefore be
covered by the confidentiality determination for that data category. If
the final amendments differ from those included in the Part 98
amendment proposal, EPA will address those changes in the final
confidentiality determination action.
D. Request for Comments
This supplemental action provides affected businesses, other
stakeholders, and the general public an opportunity to provide comment
on the proposed confidentiality determinations for the proposed new and
revised data elements. For the proposed new and revised data elements,
we are soliciting comment on the issues raised in the July 7, 2010
confidentiality proposal as they apply to the new and revised data
elements addressed in the part 98 amendment proposal and this
supplemental notice. Specifically, we are soliciting comment on whether
the data category assignments for the proposed new and revised data
elements are reasonable and appropriate (i.e., whether the proposed new
and revised data elements are sufficiently similar to the other data
elements listed in their assigned data category or whether a different
data category would be more appropriate). We are also soliciting
comment on whether the proposed confidentiality determinations for
these data elements are appropriate, whether any specific circumstances
exist that would warrant different confidentiality determinations for
these data elements, and whether any unique circumstances exist where a
limited process would be appropriate to re-evaluate EPA's final
determinations for these data elements. For a list of the proposed new
and revised data elements and their assigned data categories, please
see the memorandum ``Data Category Assignments for the Proposed
Revisions to the Part 98 Reporting Requirements'' in Docket EPA-HQ-OAR-
2009-0924 and on the Web site (http://www.epa.gov/climatechange/emissions/CBI.html.)
We are also interested in receiving suggestions on appropriate
formats for publishing the proposed new and revised data elements (both
CBI and non-CBI data). For those new and revised data elements for
which we propose confidential treatment, we are soliciting suggestions
for the best methods of aggregating the data and comment on whether
publishing any of the new and revised data elements in ranges at the
facility-level would provide valuable information that aggregated data
may not convey.
In today's notice we are soliciting comment only on the proposed
confidentiality determinations for the new and revised data elements
contained in the Part 98 amendment proposal. We are not soliciting
further comment on those data elements in the July 7, 2010
confidentiality proposal for
[[Page 43892]]
which no changes are proposed in the Part 98 amendment proposal.
II. Statutory and Executive Order Reviews
The statutory and executive order reviews do not apply to this
notice because this notice does not propose any regulatory changes. For
a complete discussion of the statutory and executive order reviews as
they apply to the proposed amendments to 40 CFR part 2, see the notice
``Proposed Confidentiality Determinations for Data Required under the
Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to
Special Rules Governing Certain Information Obtained under the Clean
Air Act'' (75 FR 39094).
List of Subjects 40 CFR Part 2
Environmental protection, Administrative practice and procedure,
Reporting and recordkeeping requirements.
Dated: July 20, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-18229 Filed 7-26-10; 8:45 am]
BILLING CODE 6560-50-P