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Confidential Business Information
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Latest Developments
On January 10, 2012, EPA issued a proposal to determine whether the Greenhouse Gas Reporting Program data elements in subparts L (Fluorinated Gas Production), DD (Electrical Transmission and Distribution Equipment Use), QQ (Importers and Exporters of Fluorinated Greenhouse Gases Contained in Pre-charged Equipment or Closed-cell Foams), RR (Geologic Sequestration of Carbon Dioxide), SS (Electrical Equipment Manufacture or Refurbishment), and UU (Injection of Carbon Dioxide) of Part 98 would or would not be entitled to confidential treatment under the Clean Air Act (CAA). These data elements will be reported to EPA for the first time in 2012. This proposed rule also contains proposed confidentiality determinations for seven new data elements recently added to subparts II (Industrial Wastewater Treatment)and TT (Industrial Waste Landfills), as well as minor updates to Table A-6 of Part 98 to reflect the technical revisions recently made to subpart TT.
On October 11, 2011 EPA took direct final action to correct an erroneous reference in EPA’s procedures for handling data required under the Greenhouse Gas Reporting Program, which are provided in the Special Rules Governing Certain Information Obtained Under the Clean Air Act. This correction does not change any requirements for entities regulated under the Greenhouse Gas Reporting Program or the final confidentiality determinations that EPA has made for such data.
On August 19, 2011, U.S. Environmental Protection Agency Administrator Lisa P. Jackson signed a final action related to certain data elements reported under EPA's Greenhouse Gas Reporting Program. EPA needs to further examine the likely business impact from the disclosure of these data elements before they are reported and potentially subject to public availability. This action defers the deadline for reporting these data elements while EPA addresses issues related to reporting and public availability of these data elements. EPA is deferring the reporting deadline for some of these inputs until March 31, 2013, and for others until March 31, 2015. This action does not affect the reporting deadline for other data elements under the rule or for suppliers of greenhouse gases. For more information on this action, see CBI Rulemaking Actions, below.
Any data submitted under 40 CFR 98 that is classified as confidential business information (CBI) will be protected under the provisions of 40 CFR part 2, Subpart B. EPA is determining through a series of rulemaking actions the data elements that will be eligible for treatment as CBI. However, according to Clean Air Act section 114(c), "emissions data" cannot be classified as CBI. EPA has proposed that inputs to Part 98 emissions equations meet the definition of "emissions data" and cannot be afforded the protections of CBI. EPA has received public comments that raise concerns about the public availability of some data that are used as inputs to emissions equations (e.g. raw materials used, production volume).
EPA is taking the following actions:
Data that are inputs to emissions equations 1
- EPA has published a list (PDF) (15 pp, 235K) of data elements that are used as inputs to emissions equations. To provide EPA time needed to fully evaluate issues regarding the release of data that are used as inputs to emission equations, EPA has deferred (PDF) (15 pp, 235K) the reporting of inputs to emissions equations until March 2013 for some data elements and March 2015 for others. No other reporting requirements are changed, and facilities must still retain these data as records in a form suitable for expeditious inspection and review during the deferral period.
- During the deferral period, EPA will evaluate the potential competitive harm that may result if inputs are publicly available, and (as appropriate) whether emissions can be calculated or verified using additional methodologies, consistent with the transparency and accuracy goals of Part 98, a process described in our EPA's memorandum (PDF) (6 pp, 145K).
Data that are not inputs to emissions equations 1
- For 34 source categories, EPA has established by rule (PDF) (37 pp, 330K) a finding of which data elements are always CBI and which data elements are not eligible to be CBI (PDF) (90 pp, 1.8MB). These 34 source categories represent all reporting year 2010 source categories and four reporting year 2011 source categories (Subparts T, FF, II and TT). In the published finding, EPA did not make a CBI determination for a small set of the data elements. For these data elements, a facility can request CBI status on a facility-specific basis in accordance with existing CBI regulations.
- For the remaining eight reporting year 2011 source categories (Subparts I, L, W, DD, QQ, RR, SS, and UU), EPA will conduct a rulemaking to determine CBI status and complete the rulemaking before facilities must submit the reporting year 2011 annual report.
1 For supplier categories (Subparts LL, MM, NN, OO, PP, QQ) none of the reported data elements are considered to be inputs to emissions equations.
CBI Rulemaking Actions
| Federal Register Date | Citation | Action | Description |
|---|---|---|---|
| 01/10/2012 | 77 FR 1434 | Proposed Rule | Proposes confidentiality determinations for 8 subparts (L, DD, II, QQ, RR, SS, TT, UU) and amendments to Table A-6 in subpart A Preamble and Rule (PDF) (19 pp, 230K) Fact Sheet (PDF) (2 pp, 99K) Memorandum: Proposed data category assignments and CBI determinations (PDF) (22 pp, 575K) |
| 10/17/2011 | 76 FR 64010 | Direct Final Rule | Special rules governing certain information obtained under the Clean Air Act: Technical Correction Preamble and Rule (PDF) (24 pp, 91K) |
| 08/25/2011 | 76 FR 53057 | Final Rule | Finalizes the deferral of reporting data elements that are inputs to emissions equations until March 2013 for some data elements and March 2015 for other data elements. Preamble and Rule (PDF) (15 pp, 235K) CBI Deferral Fact Sheet (PDF) (3 pp, 46K) CBI Deferral Frequently Asked Questions (2 pp, 34K) Process for Evaluating and Potentially Amending Part 98 Inputs to Emission Equations (PDF) (6 pp, 145K) CBI Deferral Response to Comments (PDF) (322 pp, 1.5M) |
| 08/23/2011 | 76 FR 52659 | Notice | Access by EPA Contractors to Confidential Business Information (CBI) Related to the Greenhouse Gas Reporting Program Notice (PDF) (4 pp, 192K) |
| 05/26/2011 | 76 FR 30782 | Final Rule | Finalizes confidentiality determinations for 34 subparts for data elements that are not inputs to emissions equations. Finalizes amendments to 40 CFR 2 governing CBI obtained under 40 CFR 98. Preamble and Rule (PDF) (37 pp, 330K) Final Data Category Assignments and Confidentiality Determinations for Part 98 Reporting Elements (PDF) (90 pp, 1.8MB) Fact sheet (PDF) (4 pp, 43K) PowerPoint presentation (PDF) (14 pp, 96K) Response to Comments (PDF) (350 pp, 1.5MB) |
| 12/27/2010 | 75 FR 81366 | Call for Information | Requests additional information and public comment regarding potential harm to businesses by public release of inputs to emission equations. Call for Information (PDF) (4 pp, 139K) |
| 12/27/2010 | 75 FR 81350 | Proposed Rule | Proposes to defer the reporting of data elements that are inputs to emission equations for three years. Preamble and Rule (PDF) (14 pp, 183K) Fact Sheet (PDF) (4 pp, 63K) PowerPoint presentation (PDF) (12 pp, 240K) |
| 12/27/2010 | 75 FR 81338 | Interim Final Rule | Defers until 08/31/2010 the reporting of data elements that are inputs to emissions equations. [This action is now moot because the reporting date for year 2010 emissions has been extended to 9-30/2011.] Interim Final Rule (PDF) (10 pp, 169K) |
| 12/27/2010 | 75 FR 43889 | Proposed Rule | Supplements the 07/07/2010 proposal by proposing confidentiality determinations for data elements that were added or revised by other rule revisions. Preamble and Rule (PDF) (4 pp, 159K) Data Category Assignments for Revised 98 Reporting Elements (PDF) (53 pp, 1.2MB) |
| 07/07/2010 | 75 FR 39094 | Proposed Rule | Proposes determinations of the confidentiality status of data for all Part 98 subparts. Proposes amendments to 40 CFR 2 governing CBI obtained under 40 CFR 98. Preamble and Rule (PDF) (39 pp, 302K) Data Category Assignments for Part 98 Reporting Elements (PDF) (130 pp, 1.3MB) |