The FTC has submitted a comment to US EPA regarding the agency's proposed rule concerning the confidentiality of data submitted by businesses under US EPA's Greenhouse Gas Reporting Rule. The FTC advised US EPA that publication of certain competitively sensitive data could harm competition and raise antitrust concerns.

On July 7, 2010 US EPA published a proposed rule outlining the confidentiality status of data required to be reported under its Mandatory Greenhouse Gas Reporting Rule at 40 CFR Part 98 See 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 Fed. Reg. 39094 (July 7, 2010). The proposed rule describes the categories that US EPA has developed for the Mandatory Greenhouse Gas Reporting Rule for the collection of data from facilities that directly emit greenhouse gases from their processes or stationary fuel combustion sources. US EPA has also developed rules for upstream suppliers of fuels and industrial greenhouse gases and proposed confidentiality determinations for each category. US EPA accepted comments on the proposed rule through September 7, 2010.

The FTC commented that three categories including facility-specific data relating to production, throughput, raw material consumption, capacity and future operations should remain confidential because public disclosure of such firm-specific sensitive business information could make it easier for competitors to tacitly or explicitly coordinate their pricing decisions. This collusion, according to the FTC, would harm consumers through higher prices, decreased quality and decreased innovation. The FTC also recommended that US EPA delay publication of reported data until after reporting facilities have the opportunity to apply for confidential treatment. US EPA intends to finalize its proposed rule on confidentiality before data is released in 2011.

Please feel free to contact the lawyers listed in this alert or your regular Squire Sanders contact for further information about US EPA’s Mandatory Greenhouse Gas Reporting Rule or the FTC's comment.