On May 26, 2011, the United States Environmental Protection Agency issued a final rule setting forth confidentiality determinations for certain types of data required under EPA's Greenhouse Gas Reporting Program, codified at 40 C.F.R. Part 98. The new rule includes final Part 98 amendments that allow EPA to release or withhold greenhouse gas data in accordance with those confidentiality determinations. Data deemed entitled to confidential treatment under the new rule will not be publicly available after emitters submit the first round of greenhouse gas reports to EPA on September 30, 2011, except in an aggregate format not attributable to specific reporting entities.

  EPA evaluated whether various data categories are likely to cause substantial harm to a reporting entity's competitive position, if released to the public. EPA decided that data in some categories, such as data on production, throughput, and raw materials consumed by direct emitters, should be entirely confidential. Other data categories, like unit and process operating characteristics, were deemed to contain both confidential and nonconfidential information. Still other categories, including emissions data that is prohibited from confidential treatment under the Clean Air Act, were deemed entirely nonconfidential. A detailed list of the data required under Part 98, along with U.S. EPA's confidentiality determinations, is available in a memorandum included in the rulemaking docket.

The new rule does not include any confidentiality determinations for inputs to emission equations. EPA has issued a proposal to defer the reporting of emission equation inputs until March 31, 2014, to allow time for consideration of public comments that disclosure of such information would reveal trade secrets and strategic commercial information. Although EPA is still considering these comments, the new rule narrowed the scope of the data considered emission equation inputs by reassigning certain data elements that are not actual inputs to any Part 98 emissions calculations. Where such data elements were reassigned, the new rule will apply the final confidentiality determination for the newly assigned data category.

The final rule establishes how EPA will treat data submitted by all but the following eight types of reporting entities: Electronics Manufacturing (Subpart I); Fluorinated Gas Production (Subpart L); Petroleum and Natural Gas Systems (Subpart W); SF6 and PFCs from Electrical Equipment at an Electric Power System (Subpart DD); Importers and Exporters of Fluorinated Greenhouse Gases in Pre-Charged Equipment or Closed-Cell Foams (Subpart QQ); Geologic Sequestration of CO2 (Subpart RR); SF6 and PFCs from Electrical Equipment Manufacture and Refurbishment (Subpart SS); and Injection of CO2 (Subpart UU). EPA plans to repropose and finalize confidentiality determinations for these subparts before the March 31, 2012 reporting deadline.