40 CFR § 1068.11 - Confidentiality determinations and related procedures.

§ 1068.11 Confidentiality determinations and related procedures.

This section characterizes various categories of information for purposes of making confidentiality determinations, as follows:

(a) This paragraph (a) applies the definition of “Emission data” in 40 CFR 2.301(a) for information related to engines/equipment subject to this part. “Emission data” cannot be treated as confidential business information and shall be available to be disclosed to the public except as specified in § 1068.10(d)(1). The following categories of information qualify as emission data, except as specified in paragraph (c) of this section:

(1) Certification and compliance information, including information submitted in an application for a certificate of conformity that is used to assess compliance.

(2) Fleet value information, including information submitted for compliance with fleet average emission standards and emissions related ABT credit information, including the information used to generate credits.

(3) Source family information. For example, engine family information or test group information would identify the regulated emission source.

(4) Test information and results, including emission test results and other data from emission testing that are submitted in an application for a certificate of conformity, test results from in-use testing, production-line testing, and any other testing to demonstrate emissions. The information in this category includes all related information to characterize test results, document the measurement procedure, and modeling inputs and outputs where the compliance demonstration is based on computer modeling.

(5) ABT credit information, including information submitted for current and future compliance demonstrations using credits under an ABT program.

(6) Production volume, including information submitted for compliance with fleet average emission standards, compliance with requirements to test production engines/equipment, or compliance through ABT programs.

(7) Defect and recall information, including all information submitted in relation to a defect or recall except the remedial steps you identify in § 1068.510(a)(2).

(8) Selective enforcement audit compliance information.

(b) The following categories of information are not eligible for confidential treatment, except as specified in § 1068.10(d)(1):

(1) Published information, including information that is made available in annual and quarterly filings submitted to the U.S. Securities and Exchanges Commission, on company websites, or otherwise made publicly available by the information submitter.

(2) Observable information available to the public after the introduction to commerce date.

(c) The following categories of information are subject to the process for confidentiality determinations in 40 CFR part 2 as described in 40 CFR 2.301(j)(5):

(1) Projected sales volume and projected production volume.

(2) Production start and end dates.

(3) Detailed description of emission control operation and function.

(4) Design specifications related to aftertreatment devices.

(5) Description of auxiliary emission control devices (AECDs).

(6) Plans for meeting regulatory requirements. For example, this applies for any projections of emission credits for the coming model year or determinations of the number of required repair facilities that are based on projected production volumes.

(7) The following information related to deterioration factors and other adjustment factors:

(i) Procedures to determine deterioration factors and other emission adjustment factors.

(ii) Any information used to justify those procedures.

(iii) Emission measurements you use to compare procedures or demonstrate that the procedures are appropriate.

(8) Financial information related to the following items:

(i) ABT credit transactions, including dollar amount, identity of parties, and contract information.

(ii) Meeting bond requirements, including aggregate U.S. asset holdings, financial details regarding specific assets, whether the manufacturer or importer obtains a bond, and copies of bond policies.

(9) Serial numbers or other information to identify specific engines or equipment selected for testing.

(10) Procedures that apply based on your request to test engines/equipment differently than we specify in the regulation. This applies for special and alternative test procedures. This also applies, for example, if we approve a broader or narrower zone of engine operation for not-to-exceed testing.

(11) Information related to testing vanadium catalysts in 40 CFR part 1065, subpart L.

(12) GPS data identifying the location for in-use emission measurements.

(13) Information related to possible defects that are subject to further investigation (not confirmed defects).

(14) Information submitted in support of a requested exemption.

(d) If you submit information that is not addressed in paragraphs (a) through (c) of this section, you may claim the information as confidential. We may require you to provide us with information to substantiate your claims. If claimed, we may consider this substantiating information to be confidential to the same degree as the information for which you are requesting confidential treatment. We will make our determination based on your statements to us, the supporting information you send us, and any other available information. However, we may determine that your information is not subject to confidential treatment consistent with 40 CFR part 2 and 5 U.S.C. 552(b)(4).

(e) Applications for certification and submitted reports typically rely on software or templates to identify specific categories of information. If you submit information in a comment field designated for users to add general information, we will respond to requests for disclosing that information consistent with paragraphs (a) through (d) of this section.

[88 FR 4713, Jan. 24, 2023]