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[Federal Register Volume 72, Number 81 (Friday, April 27, 2007)]
[Notices]
[Pages 21006-21008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8120]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2007-0157; FRL-8306-8]

Inquiry To Learn Whether Businesses Assert Business 
Confidentiality Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for comment.

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SUMMARY: The Environmental Protection Agency receives from time to time 
Freedom of Information Act (FOIA) requests for documents contained in 
the EPA Waste International Tracking System (``WITSnet'') pertaining to 
the export and import of Resource Conservation and Recovery Act (RCRA) 
hazardous waste from/to the United States, the export of Cathode Ray 
Tubes (CRTs) from the United States, and the export and import of RCRA 
universal waste from/to the United States. These documents may identify 
or reference multiple parties, and describe transactions involving the 
movement of specified materials in which they propose to participate or 
have participated. The purpose of this notice is to contact affected 
businesses about the documents sought by these types of FOIA requests 
in order to provide the businesses with the opportunity to assert 
claims that any of the information sought that pertains to them is 
entitled to treatment as confidential business information (CBI), and 
to send comments to EPA supporting their claims for such treatment. 
Certain businesses, however, do not meet the definition of ``affected 
business,'' and are not covered by today's notice. They consist of any 
business regulated by RCRA that actually submitted to EPA any document 
at issue pursuant to applicable regulatory requirements and did not 
assert a CBI claim as to information that pertains to that business in 
the document at the time of its submission; they have waived their 
right to do so at a later time. Nevertheless, other businesses 
identified or referenced in the documents that were submitted to EPA by 
the submitting business have not waived their own right to assert a CBI 
claim concerning information that pertains to them and may do so in 
response to this notice.

DATES: Comments must be received on or before May 29, 2007. The period 
for submission of comments may be extended if, before the comments are 
due, you make a request for an extension of the comment period and it 
is approved by the EPA legal office. Except in extraordinary 
circumstances, the EPA legal office will not approve such an extension 
without the consent of any person whose request for release of the 
information under the FOIA is pending.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2007-0157, by one of the following methods:
    www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected].
     Address: Eva Kreisler, International Compliance Assurance 
Division, Office of Federal Activities, Office of Enforcement and 
Compliance Assurance, Environmental Protection Agency, Mailcode: 2254A, 
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-
2007-0157. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or e-mail. 
The 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 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. Please include your name and other contact information 
with any disk or CD-ROM you submit by mail. 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. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
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 
www.regulations.gov or in hard copy at the HQ EPA Docket Center, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. 
The Public Reading Room 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 
docket for the Inquiry to Learn Whether Businesses Assert Business

[[Page 21007]]

Confidentiality Claims Regarding the Following Information: (1) Export 
of Hazardous Waste Documentation; (2) Import of Hazardous Waste 
Documentation; (3) Notifications of Intent to Export Cathode Ray Tubes; 
Notice of Opportunity to Comment is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Eva Kreisler, International Compliance 
Assurance Division, Office of Federal Activities, Office of Enforcement 
and Compliance Assurance, Environmental Protection Agency, Mailcode: 
2254A, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 564-8186; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: Regarding the Following Information: (1) 
Documents Related to the Export of Resource Conservation and Recovery 
Act (RCRA) Hazardous Waste Under 40 CFR part 262, Subparts E and H; (2) 
Documents Related to the Import of RCRA Hazardous Waste Under 40 CFR 
part 262, Subpart F; (3) Documents Related to the Export of Cathode Ray 
Tubes Under 40 CFR part 261, Subpart E; and (4) Documents Related to 
the Export and Import of RCRA Universal Waste Under 40 CFR part 273, 
Subparts B, C, D, and F.

I. General Information

    EPA has previously published a notice in the Federal Register, at 
67 FR 71962, December 3, 2002, that addresses issues similar to those 
raised by today's notice. The Agency did not receive any comments on 
the 2002 notice. Since the publication of the 2002 notice, the Agency 
has continued to receive FOIA requests for documents contained in the 
EPA Waste International Tracking System (``WITSnet'') database.

II. Issues Covered by This Notice

    EPA receives FOIA requests from time to time for documents that may 
identify or reference multiple parties, and describe transactions 
involving the movement of specified materials in which they propose to 
participate or have participated. This notice informs ``affected 
businesses,'' \1\ which could include, among others, specific 
``transporters'' \2\ and consignees,'' \3\ of the requests for 
information contained in one or more of the following documents: (1) 
Documents related to the export of Resource Conservation and Recovery 
Act (RCRA) hazardous waste under 40 CFR part 262, subparts E and H, 
including but not limited to the ``notification of intent to export'', 
``manifest,'' \4\ ``annual report,'' ``acknowledgements of consent,'' 
``exception reports,'' ``transit notifications,'' and 
``renotification;'' (2) documents related to the import of hazardous 
waste under 40 CFR part 262, subpart F, including but not limited to 
notifications of intent to import hazardous waste into the U.S. from 
foreign countries; (3) documents related to the export of Cathode Ray 
Tubes (CRTs) under 40 CFR part 261, subpart E, including but not 
limited to notifications of intent to export CRTs; and (4) documents 
related to the export and import of RCRA universal waste under 40 CFR 
part 273, subparts B, C, D, and F.
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    \1\ The term ``affected business'' is defined at 40 CFR 
2.201(d), and is set forth in this notice, below.
    \2\ The term ``transporter'' is defined at 40 CFR 260.10.
    \3\ The term consignee is defined, for different purposes, at 40 
CFR 262.51 and 262.81(c).
    \4\ The term ``manifest'' is defined at 40 CFR 260.10.
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    Certain businesses, however, do not meet the definition of 
``affected business,'' and are not covered by today's notice. They 
consist of any business that actually submitted any of the documents 
sought in the FOIA requests that EPA has received, and did not assert a 
claim of business confidentiality covering any of that information at 
the time of submission. As set forth in the RCRA regulations at 40 CFR 
260.2(b), ``if no such [business confidentiality] claim accompanies the 
information when it is received by EPA, it may be made available to the 
public without further notice to the person submitting it.'' Thus, for 
purposes of this notice and as a general matter under 40 CFR 260.2(b), 
a business that submitted to EPA the documents at issue, pursuant to 
applicable regulatory requirements, and that failed to assert a claim 
as to information that pertains to it at the time of submission, cannot 
later make a confidentiality claim. Nevertheless, other businesses 
identified or referenced in the same documents that were submitted to 
EPA by the submitting business have not waived their own right to 
assert a CBI claim concerning information that pertains to them and may 
do so in response to this notice.
    In accordance with 40 CFR 2.204(c) and (e), this notice inquires 
whether any affected business asserts a claim that any of the requested 
information constitutes CBI, and affords such business an opportunity 
to comment to EPA on the issue. This notice also informs affected 
businesses that, if a claim is made, EPA would determine under 40 CFR 
part 2, subpart B, whether any of the requested information is entitled 
to confidential treatment.

1. Affected Businesses

    EPA's FOIA regulations at 40 CFR 2.204(c)(1) require an EPA office 
that is responsible for responding to a FOIA request for the release of 
business information (``EPA office'') ``to determine which businesses, 
if any, are affected businesses * * *.'' ``Affected business'' is 
defined at 40 CFR 2.201(d) as, ``* * * with reference to an item of 
business information, a business which has asserted (and not waived or 
withdrawn) a business confidentiality claim covering the information, 
or a business which could be expected to make such a claim if it were 
aware that disclosure of the information to the public was proposed.''

2. The Purposes of This Notice

    This notice encompasses two distinct steps in the process of 
communication with affected businesses prior to EPA's making a final 
determination concerning the confidentiality of the information at 
issue: the preliminary inquiry and the notice of opportunity to 
comment.
a. Inquiry To Learn Whether Affected Businesses (Other Than Those 
Businesses That Previously Asserted a CBI Claim) Assert Claims Covering 
Any of the Requested Information
    Section 2.204(c)(2)(i) provides, in relevant part:
    If the examination conducted under paragraph (c)(1) of this section 
discloses the existence of any business which, although it has not 
asserted a claim, might be expected to assert a claim if it knew EPA 
proposed to disclose the information, the EPA office shall contact a 
responsible official of each such business to learn whether the 
business asserts a claim covering the information.
b. Notice of Opportunity To Submit Comments
    Sections 2.204(d)(1)(i) and 2.204(e)(1) require that written notice 
be provided to businesses that have made claims of business 
confidentiality for any of the information at issue, stating that EPA 
is determining under 40 CFR part 2, subpart B, whether the information 
is entitled to confidential treatment, and affording the businesses an 
opportunity to comment as to the reasons why they believe that the 
information deserves confidential treatment.

3. The Use of Publication in the Federal Register

    Section 2.204(e)(1) requires that this type of notice be furnished 
by certified

[[Page 21008]]

mail (return receipt requested), by personal delivery, or by other 
means which allows verification of the fact and date of receipt. EPA, 
however, has determined that in the present circumstances the use of a 
Federal Register notice is the only practical and efficient way to 
contact affected businesses and to furnish the notice of opportunity to 
submit comments. The Agency's determination to follow this course was 
made in recognition of the large number of businesses included in the 
pertinent universe. Publication in the Federal Register also dispenses 
with the requirement of orally informing a responsible representative 
of the business that it should expect to receive a written notice, and 
requesting the business to contact the EPA office if the written notice 
has not been received within a few days, so that EPA may furnish a 
duplicate notice. 40 CFR 2.204(e)(3).

4. Submission of Your Response in the English Language

    All responses to this notice must be in the English language.

5. The Effect of Failure To Respond to This Notice

    In accordance with 40 CFR 2.204(e)(1) and 2.205(d)(1), EPA will 
construe your failure to furnish timely comments in response to this 
notice as a waiver of your business's claim(s) of confidentiality for 
any information in the documents identified in this notice.

6. What To Include in Your Comments

    If you believe that some or all of the information contained in the 
types of documents which are described in this notice and which are 
currently, or may become, subject to FOIA requests, is entitled to 
confidential treatment, please specify which portions of the 
information you consider confidential. Information not specifically 
identified as subject to a confidentiality claim will be disclosed to 
the requestor without further notice to you.
    For each item or class of information that you identify as being 
subject to your claim, please answer the following questions, giving as 
much detail as possible:
    1. For what period of time do you request that the information be 
maintained as confidential, e.g., until a certain date, until the 
occurrence of a specified event, or permanently? If the occurrence of a 
specific event will eliminate the need for confidentiality, please 
specify that event.
    2. Information submitted to EPA becomes stale over time. Why should 
the information you claim as confidential be protected for the time 
period specified in your answer to question no. 1?
    3. What measures have you taken to protect the information claimed 
as confidential? Have you disclosed the information to anyone other 
than a governmental body or someone who is bound by an agreement not to 
disclose the information further? If so, why should the information 
still be considered confidential?
    4. Is the information contained in any publicly available material 
such as the Internet, publicly available data bases, promotional 
publications, annual reports, or articles? Is there any means by which 
a member of the public could obtain access to the information? Is the 
information of a kind that you would customarily not release to the 
public?
    5. Has any governmental body made a determination as to the 
confidentiality of the information? If so, please attach a copy of the 
determination.
    6. For each category of information claimed as confidential, 
explain with specificity why release of the information is likely to 
cause substantial harm to your competitive position. Explain the 
specific nature of those harmful effects, why they should be viewed as 
substantial, and the causal relationship between disclosure and such 
harmful effects. How could your competitors make use of this 
information to your detriment?
    7. Do you assert that the information is submitted on a voluntary 
or a mandatory basis? Please explain the reason for your assertion. If 
the business asserts that the information is voluntarily submitted 
information, whether and why disclosure of the information would tend 
to lessen the availability to EPA of similar information in the future.
    8. Any other issue you deem relevant.
    Please note that you bear the burden of substantiating your 
confidentiality claim. Conclusory allegations will be given little or 
no weight in the determination. If you wish to claim any of the 
information in your response as confidential, you must mark the 
response ``CONFIDENTIAL'' or with a similar designation, and must 
bracket all text so claimed. Information so designated will be 
disclosed by EPA only to the extent allowed by, and by means of, the 
procedures set forth in, 40 CFR part 2, subpart B. If you fail to claim 
the information as confidential upon submission, it may be made 
available to the public without further notice to you.

III. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Please submit this information by mail 
to the address identified in the ADDRESSES section of today's notice. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark 
the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is claimed as CBI. Information so marked will not be disclosed except 
in accordance with procedures set forth in 40 CFR part 2, subpart B. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the notice by docket number and other identifying 
information (subject heading, Federal Register date and page number).
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

    Dated: April 20, 2007,
Anne Norton Miller,
Director, Office of Federal Activities.
[FR Doc. E7-8120 Filed 4-26-07; 8:45 am]
BILLING CODE 6560-50-P
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