### RULES AND' REGULATIONS

Title 40-Protection ofEnvironment [FRI 567-71
CHAPTER I-ENVIRONMENTAL PROTECTION AGENCY RequestsforInformati6-; Confidentiality dfBusiness Information " On May 20, 1975, the Environmental Protection Agency (EPA) caused to be published inthe FEDERAu Rcarsrz a documefit (40FR21987) proposingto amend 40 CPR Part 2 by adding a.new Subpart B entitled "Confldentialty of Business Information."' Certain corrections and revisions to that document were made by a document published in the FEDEMRA REGISTER on July 9, 1975 (40 PR 28814). Interested persons were given until July 22, 1975, to submit written comments, suggestions, or objections. Some 60 com- ments were received; commenters included trade associations, business firms, environmental organizations, state agencles, and others. Full and careful donsideration was given to all written com- mentsreceived.

Aspromulgated below, therulereflects

a number of changes from the proposed rule. Many of these changes were sug- gestedbycomments ontheproposed rule made byinterested members ofthe pub- lic; others were found desirable in order tosimplify andclarifyvariousprovisions,

even though they were not specifically suggested by comments from the public. The changes donot introducesignificant variations from the subject matter and issues presented in the May 20 and July 9, 1975, documents. A summary of the significant comments, the Administrator's responses to those comments, and the other changes that have been made appear as Appendix A. The Preamble to the May 20, 1975, document also discussed many of the issues presented by thisrule-flaking proceeding.

The purpose of Subpart B is to establish and make-known to the public the rules and procedures which EPA will

use in handling information gathered by EPA which may be entitled confidential treatment for reasons ofbusiness confidentiality. The regulation represents EPA's attempt to devise a procedure which protects the interests ofthe busi-

nesses which furnish information to EPA, the interests of members of the public who request that EPA disclose such information, and the interests of EPA in carrying out its statutory missions. As stated more fully in the Preamble to the May 20 document, these various interests may from time to time be in conflict. Businesses have recently expressed concern that Federal agencies may disclose proprietary information the agencies possess"and thereby harm the businesses. On the other haild,mem- bers of the public have-asserted that understanding and criticizing Government proposals or decisions is dificult or Impossible if the business data upon, which the Government relied are un- available for scrutiny. EPA understands the importance of both these ar- guments and, in addition, is aware that the continuing flow of information from businesses needed for sound EPA decl-, sionmaking may 'be affected adversely ifbusinesses do not feel that EPA gives full and fair consideration to their con- fidentiality claims.

Subpart B, as promulgated below, establishes procedures and substantive rules designed to: Limit the likelihood of inadvertent disclosure of confidential business information; afford businesses

a fairopportunity both to assert aconfidentiality claim and to substantiate the claim prior to an EPA ruling on the claim; allow a business to seekjudicial review of an EPA ruling unfavorable to It; protect the interests of members of the public who request disclosure of business information under theFreedom of Information Act, 5 U.S.C. 552; and furnish guidance to those EPA 'offlcers and employees who must deal with con- fidentiality claims and requests for Information -whilecarrying out other important Agency business.

Subpart B consists of a series of gen- erally applicable rules 

### (§§ 2.201-2.213) and certain special rules which modify the general rules when necessary to Implement several statutes under which EPA operates and which contain special provisions governing the treatment of business information.

A revision of Subpart A of 40 CFR Part 2 is also promulgated below. (SubpartA contains theAgency's basic regu- lations concerning the treatment of re- quests for information under 5 U.S.C. 552). Many ofthechanges to Subpart A

are merely matters of style idesigned to more clearly set forth procedural rules which were stated in the earlier version of the subpart. Former §2.107 has been redesig- nated'as-§ 2.106, and a new §2.107 has been 'added, dealing with the treatment of misdirected written requests and oral requests. The subpart has been revised in several places to indicate more clearly that a discretionary decision to withhold exempt documents should be based

on a finding that the public interest would notbeservedby disclosure. Section 2.119(b) has been revised to indicate that matters exempt under 5 U.S.C. 552 (b)(8) or (b)(9) normally will not be disclosed as a matter of policy. Section 2.120 has been extensively revised to state additional examples of search and duplication efforts for which the fee will be the actual, direct cost to EPA, to indicate items for which no charge shall be made, and to clarify the procedure to be used in considering requests for reduction of waiver of fees. Former §2.121, which recited a statutory re- quirement concerning an annual report to Congress, has been deleted as unnec- essary. Because the changes to Subpart A-eonsist ofrules ofagency organization, procedure, orpractice, and because pub- lic bomment onthese changes is unnec- essaryand would iotserve the publicinterest, good cause is hereby found for promulgating the revision of Subpart A without use of the proposed rulemaking procedure of 5 U.S.C. 553(c).

Finally, minor changes to other parts in Chapter I of 40 CFR are also being made for the purpose of conforming these parts to the newly promulgated Subpart B of Part 2.

Accordingly, Chapter I of 40 CFR is amended as set forth below.

Effective date: These regulations shall become effective on October 1, 1976.
Dated: August 12, 1976,

RUSSELL E. TnM, Adminittrator. Chapter I of 40 CFR is amended as follows: i
1. Part 2 Is amended by revising Subpart A and by adding a new Subpart B,

so thatthe Part reads as follows: PART 2-PUBLIC INFORMATION Subpart A-Requestsfor Information Sec. 2.100 Definitions. 2.101 Policy ondisclosure ofEPArecords. 2.102 [Reserved] 2.103 Partial disclosure of records. 2.104 Requests to which this subpart aip- plies. 2.105 Existingrecords. 2.106 Where requests for agency records shallbefiled. 2.107 Misdirected written requests; ord re- quests. 2.108 Form a request. 2.109 Requests which do not reasonably describe records sought. 2.110 Responsibilities of Freedom of Information Officers. 2.111 Action by ofllco responsible for re- spending to request. 2.112 Time allowed for Issuance of Initial determination. 2.113 Initialdenials ofrequests. 2.114 Appeals from Initial denials; manner ofmaking. 2.115 Appeal determinations: by whom made. 2.116 Contents of determination denying appeal. 2.117 Time allowed for issuance of appeal determination. 2.113 Exemption categories. 2.119 Discretionary release of exempt documents. 2.120 Vees; payment: waiver. 2.121-2.200 [Reserved]. Subpart 1--Confdentally ofBusiness Inf

5rmatlOn 2.201 Definitions. 2.202 Applicability of subpart; priority where provisions conflict: records containing more than 

### ono kind of information. 2.203 

### Notice to be includedInEPArequests, demands, and forms; method of asserting businesa confidentiality claim; effect of failure to itmert claim at time of submission.. 2.204, InitialactionbyEPAoflce. 2.205 Finalconfidentiality determination by EPA legalofflco. 2.206 Advance confidentiality determinations. 2.207 Classdeterminations. 2.208 Substantive criteria for use In con- fidentiality determinations, 2.209 Disclosure in special cIrcumstances. 2.210 Nondisclosure for reasons other than business confidentiality or whore disclosuro Is prohibited by other statute. 2.211 Safeguardingofbusines information: penalty forwrongful disclosure, 2.212 Establishment of control offices for categories of business Information. 2.213 Designation by business of addresse fornotices andinquiries.

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### RULES AND REGULATIONS

Sec. 2.214-2.300 [Reserved]. 2.301 Special rules governing certain information-obtained under the Clean AirAct. 2.302 Special rules governing certain information obtained under the Fededal Water Pollution Control Act. 2.303 Special rules governing certain information obtainedunder theNoise
ControlActof 1972.
2.304 Special rules governing certain information obtained under the Safe Drinking Water Act. 2,305 IReserved]. 2.306 IReserved]." 2,307 Special rules governing certain infor-

- mation obtained under the Federal Insecticide, Fungicide, and Rodenticide Act. 2.308 Special rules governing certain Information, obtained under the Federal FOoA Drug, and Cosmetic Act. 2.309 Special rules governing certain infor- -ation obtained under the Marine Protection, Research and SanctuariesActof 1972. Aurorry: 5U.S.C. 301, 552, 553; sees. 114, 208, 301, and 307 of the Clean Air Act, as amended, 42 U.S.C. 1857c-9, 1857f-6, 1867g, 1857h-5; sees. 308, 501, and 509(a) of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1318, 1361, 1369(a); sec. 13 ofthe Noise Control Act of 1972, 42 U.S.C. 4912; sees. 1445 and 1450 of the Safe DrinkIng Water Act, 42 U.S.C. 300J-4, 300J-9; sees. 10, 12, and 25 of-the Federal Insecticide, Fungicide and Rodenticide Act, as amended, 7 U.S.C. 136h, 1361, 136v; sec. 408(f) of the Federal Food, Drug and Cosmetic Act, as amended, 21 U.S.C. 346a(f); and secs. 104(f) and 108 of the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. 1414 (f), 1418. SubpartA-RequestsforInformation §2.100 Definitions.

For -the purposes ofthispart: (a) "EPA" means the United States Environmental Protection Agency. (b) 'EPA record" or, simply, "record"

means- and document, writing, photograph, sound or magnetic recording, drawing, or other similarthing bywhich information has been preserved, from which the information can be retrieved and copied, and which is, was, or is alleged to be possessed by EPA. The term includes informal writings (such as handwritten notes, drafts, and thelike), and also includes information preserved in a form which musJ be translated or decipheredbymachine in orderto beintelgible to humans. The term includes documents and the like which were created oracquired byEPA,itspredecessors,its officers, andemployees by use of Government funds or in the course of transacting official business. However,

- the term does not include materials which arelegally owned by anEPA offi-

cer or employee in his orherpurely personal capacity. Nor does the term include materials published by non-Federal organizations which. are readily available to the public, such as books, journals, and periodicals available throughreference-libraries, even if such materials are in EPA's possession. (e) "Request" means a request to inspect or obtain a-copy of one or more

. records. (d) "Requestor" means any person who has submitted a request to EPA. §2.101 Policy on disclosure ofEPA rec- orde. (a) EPAwillmake the fullestpozsible disclosure of records to the public, con-' sistent with the rights of individuals to privaciy, the rights of persons in busi-

ness information entitled to confidential treatment, and theneed for EPA to promote frank internal policy dellberalions and to pursue Its official activities withoutundue disruption.

(b) All EPA records shall be &vallable to the public 

### 'unless they are exempt from the disclosure requirements of 5 U.S.C. 552. (c) All nonexempt EPA records shall be available to the public upon request regardless of whether any justification

orneed forsuch records has been shown bytherequestor. § 2.102 [Reserved]
"9

2.103 Partialdisclosure ofrecords.
If a requested record contain's both exempt and nonexempt material, the nonexempt material shall be disclosed, after the exempt material has been deletedinaccordancewith §2.119. §2.104 Requests to 'dichl tlis subpart applies. (a) This subpart applies to any written request (other than a request made by another Federal agency) received by any EPA office, whether or not the re- quest cites the Freedom of Information -Act, 5 U.S.C. 552. See §2.107(a) and

§2.112(b) regarding the treatment ofre- quests which are directed by the requestor to offices other than those listed in §2.106. (b) Any written request to EPA for existing records prepared by EPA for routine public distribution, e.g., pamphlets, copies ofspeeches, press releases,' and educational materlals, shall be honored. No individual determination under §2.111 is necessary in such cases, since preparation of the records for routine public distribution Itself con- stitutes a determination that the records

are available to thepublic. § 2.105 Existingrecords. (a) The Freedom ofInformation Act, 5 U.S.C. 552, does not require the crea- tion of new records in response to a re- quest,nor does it require EPA toplace a requestor's name on a distribution list for automatic receipt of certain kinds of records as they come into existence. The Act establishes requirements for disclosure of existingrecords.

(b) All existing EPA records are subject to routine destruction according to standard recordretention schedules. §2.106 Where requests for agency rec- ordsshall he filed. (a) A request forrecords maybe filed with the EPA Freedom of Information Officer, A-101, 401M Street, SW, Washington, D.C. 20460. (b) Should the requestor have reason to believethat therecords sought maybe located in,anEPAregional opce,hemay 

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transmit his request to the appropriate regIonal Freedom of Information Office Indicated below: (1) RegIon I (Massachusetts, ConnectIcut, Maine, New Hampshire, Rhode Island, Vermont): U.S. Environmental Protection Agency, Freedom -of Information Officer, Room 2303 John F. Kennedy Federal Building Bozton, Macz. 02203. (2) RegionII (New Jersey,New York, Puerto Rico, Virgin Islands): U.S. Environmental Protection Agency, Freedom of Information Ofilcer Root 1005, 26 Federal Plaza. New York.NY 10007. (3) Region I (Delaware, Maryland, Pennsylvania, Virginia, West Virginia, Districtof Columbia) : U.S. Environmental Protection Agency, Freedoa of Information Officer, Curtis Building, Sixth and Walnut Streets, Phfladel-' phla, PA 19106. (4) Region IV (Alabama, Morida Georgia, Kentucky, Mississippi, North 

### Carolina, South Carolina, Tennessee): U.S. Environmental Protection Agency, Freedora of Information Officer, Suite 504. 1421 Peachtreo Street, TE, Atlanta,GA 30309. 

### (5) RegionV (Illinois,Indiana,Michigan, Minnesota, Ohio, Wisconsin):

U.S. Environmental Protection Agency, Freedor of Information Officer, 233 Dearborn Street, Chicago, ILr 60604. (6) Region VI (Arkansas, Louisiana, NewMexico, Oklahoma, Texas): U.S. Environmental Protection Agency, Freedor ofInformation Officer,Suite 1100,1600 Pattercon Street,Da las,TX 75201. (7) Region VII (Iowa, Kansas, Mis

### souri,Nebraska)

### : U.S. Environmental Protection Agency, Freedoma of Information Officzr 1735 Baltimore Avenue, Kansas City,MO 64108. (8) Region VI=I (Colorado, Montana, North Dakota, South

- Dakota, Utah, Wyoming): U.S.Environmental Protection Agency,Freedomof Information Officer, Suite B00, 18C0 Lincoln Street,Denver, CO80203. (9) Region IX (Arizona, California, Hawaii, Nevada, American Samoa, Guam, TrustTerritory ofPacificIslands, Wake Island): U.S. Environmental Protection Agency, Freedom of Information OXcer, 100 California Street, San Franclco, CA 94111. (10) RegIonX (Alaska, Idaho, Oregon, Washington):
U-S. Environmental Protection Agency, Freedoa ofInformation Officer, 1200SixthAvenue, Seattle, WA 93101. §2.107 Misdirected written requesIs; oral requests. (a) EPA cannot assure that a timely

or satisfactory response under this subpart will be given to written requests thatare addressedtoEPAoffices, officers,

or employees other than the Freedom of Information OfficerslistedIn §2.106.Any EPA officer or employee who receives a written 

### request for inspection or disclosure of EPA records shall promptly

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HeinOnline -- 41 Fed. Reg. 36903 1976forward a copy of therequest to the ap- each request received, which Ahall con- propriate reedom'of Information Of- tain a copy of the request, initial and ficer, by the fastest practicable means, appeal determinations, and other pertiand shall, ifappropriate, commence ac- nent correspondence and records. tion under §2.111. (c) The Freedom of Information (b) Vile EPA officers and employees officer shall collect and maintain the inwill attempt ingood faith tocomply with formation necessary to compile the rerequests for inspection or disclosure of ports required by 5 U.S.C. 552(d). EPA records made orally, by telephone §2.111 Action by office responsible for

or otherwise, such oral requests are not responding to

### reque6t required to be processed in accordance e with this Subpart. (a) Whenever an EPA office becomes

aware that it is responsible forrespond- §2.108 Form ofrequest. ing to a request, the office shall:

A request shall be made in writing, (1) Take action under §2.109, if reshfUl reasonably describe the records quired, to obtain a,better description of sought in a way that will permit their the records requested; .,identification and location, and should (2) Locate the records as promptly be addressed to one of the addresses set aspossible, or determine thattherecords forth in §2.106, but otherwise'need not are not known to exist, or that they are bein any particular form. located at another EPA office, or that they are located at another Federal §2.109 IRequestE which do not reason- agency and notpossessed byEPA; ably describerecordssought. (3) When appropriate, take action (a) If the description of the records under § 2.120(c) to obtain payment or. sought in the request s not sufficient to assurance ofpayment; allowEPA to identify and locate the re- (4) If any located records contain quested records, the EPA office taking business Information, as defined In action under §2.111 will notify the re- §2.201(c), comply with subpart B ofthis quester (by telephone when practicable) part; that therequest cannot be furtherproc- (5) Determine which of therequested essed until additional information is records legally must be withheld, and furnished, why (see §2.119(b)); (b) EPA will make every reasonable (6) Oftherequested recordswhich are effort to assist in the identification and exempt from mandatory disclosure but description of records sought and to as- which legally may be disclosed (see sist the requester in formulating his re- §2.119 (a)), determine whichrecords will quest.If arequest is described in general bewithheld, and why; terms (e.g., all records having to do with (7) Issue an initial determination

acertain area), theEPAoffice takingac- within'the allowed period (see §2.112), tion under §2.111 may communicute specifying (individually or by category) with the requester (by telephone wheil which records willbedisclosed andwhich practicable) with a view,toward reduc- will be withheld, and signed by aperson Ingtheadministrative burden ofprocess- authorized to issue the determination ing a broad request and minimizing the under §2.113(b). Denialsofrequests shall fees payable by the requester. Such at- complywith §2.113; and tempts will not be used as a means to (8) Furnish the appropriate Freedom discourage requests, but rather as a of Information Officer a copy of the de-

means to help identify with more specif- termination. If the determination denied icily the records actually sought. arequest forone ormoreexisting, located § 2.110 Responsibilities of Freedom of records, the responding office shall also Information Officers. furnish theFreedom of Information Offleer the name, address, aid telephone (a) Upon receipt of a written request, number of the EPA employee(s) having the Freedom of Information Officer custody of the records, and shall main- (whether at EPA Headquarters or at an tainthe records in a manner permitting EPA region) shall mark therequest with their prompt forwarding to the General the date of receipt, and shall attach to Counsel upon request if an'appeal from the request a control slip indicating the, the initial denial Is filed. See also date of receipt, the date by which re, §2.204(f). sponse Is due, a unique Request Identifi-

. (b) If it appears that some or all of cation Number, and other pertinent ad- the requested records arenot inthe pos-. ministi-attve information. The request session ofthe EPA office-whichhas been and control slip shall then beforwarded assigned responsibility for responding to immediately totheEPA office believed to therequest butmay be in thepossession be responsible for maintaining the of some otherEPA office, theFreedom of records requested. (If the records re- Information officer- who is monitoring quested are believed to be located at two the request shall be so informed

ormoreEPA offices, each such office shall immediately. be furnished a copy of the request and control slip, with instructions concerning § 2.112 Time allowed forissuance ofiniwhich office shall serve as the lead office tial determination. for coordinating the response.) The, (a) Except as otherwise provided in Freedom of Information Officer shall re- this section, not later than the tenth tain a file copy oftherequest and control working day after the date ofreceipt by slip, and shall monitor the handling of-' a Freedom of Information Office of a the request to ensure a timely response. requestforrecords,theEPAofficerespon- (b) The Freedom of Information sible for responding to the request shall Officer shall maintain a file concerning Issue a written determination to the re- / quester stating which of the requested records will, and which will not, be re- leased, and the reason for any denial of

a request. (b) The period of 10 working days shall be measured from the date the re- quest Is first received and logged in by theHeadquarters or regional Freedom of Information Office.

(c) There shall be excluded from the period of 10 working days (or anyextension thereof) anytime which elapses between the date that a requester Is notifiedbyEPAunder §2.109thathisrequest does notreasonably identify the records sought, and the date that the requester furnishes areasonableidentification. d) There shall be excluded from the period of 10 working days (or any extension thereof) anytime which elapses between the date that a requester Is notifled by EPA under §2.120 that prepayment of fees is required, and the date that the requester pays (or makes suitable arrangements to pay) such charges. (e) TheEPA officetaking actionunder §2.111, after notifying the appropriate Freedom of Information Office, may ex- tend the basic 10-day period established under subsection (a) of this section by

aperiodnot to exceed 10 additionalworking days, by furnishing written notice to the requester within the basic 10-day period statingthereasons forsuch extension and the date by which the office expects to be able to Issue a determination.The periodmay be so extended only when, absolutely necessary, only for the periqd required, and only when one or mors of the following unusual circumstancesrequire theextension:

(1) There is a need to search for and collect the requested records from field facilities or other establishments that

are separate from the office processing the request; (2) There is aneed to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request',or (3) There is a need for consultation, which shall be conducted with all practicable speed, With another agency hay- Ing a substantial interest in the determination of therequest or among two or
more components ofEPA. (1) Failure of EPA to issue a determinationwithin the 10-day period or any authorized extension shall constitutefinal agency action which authorizes the re- quester to commence an action in an appropriate Federal district court to obtain therecords. §2.113 Initialdenials ofrequests.

(a) An initial denial of a requestmay beIssued onlyfor thefollowing reasons:

(1) TheTecordrequested isnotknown to exist; ' (2) Therecord is notin EPA's possession;

(3) The record has been published in the FEDER" REaIsTrR or is otherwise published and availableforsale;

(4) A statutory provision, provision ofthis part, or court order requires that theinformation notbedisclosed;

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(5) The record is exempt from man- datory disclosure under ,5U.S.C. 552(b) and EPA has decided that the public interest would not be served by disclosure;

(6) Section 2.204(d) (1) requires initial denial because a third person must be consulted in connection with a busi-

nessconfidentialityclaim; or (7) The record is believed to exist in EPA's possession but has not.yet been located (see subsection (hi) of this sec- tion).

(b) AssistantAdministrators, headsof headquarters staff offices, and Regional Administrators are delegated the au- thority to issue initial determinations. Thisauthority maybe redelegated; provided, thatthe authority to issue Initial denials of requests for existing, located records (other than denials based solely

on §2.204(d) (1)) may be redelegated only to persons occupying positions not lower than.division director or equivalent. (c) [Reservedl (d) Each initialdetermination todeny

a request shall be written, signed, and dated, shall contain a reference to the Request Identification Number, shall identifythe records thatarebeing withheld (individually,or,ifthedenialcovers
a largenumber ofsimilarrecords, by described category), and shall state the basis for denial of each record or category ofrecords beingwithheld. (e) If the issuance of the determination to deny a request was directed by

someEPA officer or employee other than the person signing the determination letter, that other person's identity and position shall be stated in the determinationletter- (1) Each initial determination which denies, in whole or in part,a request for

one ormoreexisting,locatedEPArecords shallstate thattherequestor mayappeal the initial denial by sending a written appealtotheaddress shown in§2.106(a) within 30 days of receipt of the deterrnination.

(g) A determination shall be deemed issued onthe datethedetermination letter isplacedin EPAmailing channels for first class mailing to the requestor, delivered to the U.S. Postal Service for mailing, or personally delivered to the requestor, whichever datefirstoccurs. (h) When a request must be denied because the record has not yetbeen lo- "cated (although it isbelieved to exist in EPA'spossession), theEPAofficerespon-. sible for maintaining the record shall continue to search diligently until it is located or ftappears that therecord does not exist or is not in EPA's possession, and shall periodically inform the re- questor oftheoffice's progress.
§2.114 Appeals from initial denials;
manner ofmaking. (a) Any person -whose request has been denied in whole or in part by an initial determination may appeal that denial byaddressing a written appeal to the-address shownin§2.106 (a). (b) An appeal should be mailed no later than 30 calendar days after the date the requester received thb initial determination on the request. An un- timely appeal maybe treated either as a timely appeal or as a newrequest, at the option of the Freedom of Information Officer. (c) The appeal letter shall contain a reference to the Request Identification Number (RIN), the date of the initial determination, and the name and address of thepersonwho issued theinitial denial. The appealletter shall also indicate which oftherecords towhich access
wasdenied arethesubjects ofthe appeal. § 2.115 Appeal determination; by whom made. (a) The General Counsel shall make

one ofthefollowinglegal determinations In connection withevery appealfromthe initial denial of a request for an existing,located record: (1) The record must be disclosed; (2) The record mustnot be disclosed, because a statute or a provision of this part sorequires; or (3) The record Is exempt from man- datory disclosure butlegally may be disclosed as a matter ofAgency discretion.

(b) Whenever the General Counselhas determined under paragraph (a) (3) of this sectionthat a record is exemptfrom mandatory disclosure butlegally maybe disclosed, thematter shall be referred to the Director ofthe EPA Offmce ofPublic Affairs.If the Director of theEPA Office of Public Affairs determines that the public interest would not be served by disclosure, a determination denying the appeal shall be issued by the General Counsel.If theDirector oftheEPAOffice of Public Affairs determines that the public interest would be served by disclosure, therecord shall be disclosed unless the Administrator (upon areview of the matter requested by the appropriate Assistant Administrator, Regional Administrator, or the Director of a Headquarters Staff Office) determines that the publicinterest wouldnotbeservedby disclosure in which case the General Counselshall issue adetermination denyingthe appeal. (c) TheGeneral Counselmaydelegate hisauthority underparagraph (a) ofthis section to a Regional Counsel, or to any other attorney employed on a.full-time basis by EPA, in connection with any category of appeals or any individual appeal. § 2.116 Contents of determination deny- .ugappeal.
A determination denying an appeal from an initialdenial shallbein writing, shall state which of the exemptions in 5 U.S.C. 552(b) apply to each requested existing record, and shall state the reason(s) -fordenial ofthe appeal.A denial determination shall also state the name and position of each EPA officer or em- ployee who directed that the appeal be denied. Such a determination shall further state that thepersonwhose request

was denied may obtain de novo Judicial review of the denial by complaint filed with the district court of the United States in the districtin which the com- plainant resides, or In which the Agency records are situated, or in the District of Columbia, pursuant to 5 U.S.C.552(a) (4). § 2.117 Tinealowed forissuance of appeal determination. (a) Except as otherwise provided in this section, notlaterthan thetwentieth working day after the date of receiptby the Freedom of Information Officer at EPAHeadquarters of anappeal from an initial denial of a request for records, the General Counsel shall issue a written determination stating which of the requested records (as to which an appeal was made) shall be disclosed and which shall not be disclosed. (b) Theperiodof20workingdaysshall be measured from the date an appeal is first received by the Freedom of Information Officerat EPA Headquarters, ex- cept as other provided in 2205(a). (c) The Office of General Counsel, afternotifying the Freedomof Information Officer at EPA Headquarters, may extend the basic 20-day period established under subsection (a) of this sec- tionby a period not to exceed 10 additional working days,by furnishing written notice to the requestor within the basic 20-day period stating the reasons for such extension and the date by which the office expects to be able to Issue a determination. The period may be so extended only when absolutely necessary, only for the period required, andonlywhenoneormoreofthefollowing unusual circumstances require the extension:

(1) There is a need to search forand cblect the records from field facilities

orother establishments thatareseparate from theofficeprocessingtheappeal; (2) There Is aneedtosearch for,collect, and appropriately examine a voluminous amount ofseparate and distinct records which are demanded in a single request; or

(3) There Is a need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial Interest In the determination of the request or among two

ormore components ofEPA. d) No extensionofthe 20-day period shall be issued under subsection (c) of this section which would cause the total ofall such extensions and ofany extensions issued under §2.112(e) to exceed 10-working days. § 2.118 Exempiion categories.

(a) 5 U.S.C. 552(b) establishes nine exclusive categories ofmatterswhich are exempt from the mandatory disclosure requirements of 5 U.S.C. 552(a). No re- quest under 5 U.S.C. 552 for an existing, located record in EPA's possession shall be denied by anyEPA office or employee unless the record contains (or its disclosure would reveal) matters that are- (1) Specifically authorized under criteria established by an Executive Order to be kept secret n the interestof na- tional defense orforeign policy and are in fact properly classified pursuant to suchExecutive Order; (2) Related solely to the internal personnel rules and practices of an agency;

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(3) Specifically exempted from disclosure by statute;

- .

(4) Trade secrets and commercial or financial Information obtained from a person and privileged or confidential (see SubpartB) ;

(5) Interagency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation with the agency; (6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion ofpersonal privacy; (7) Investigatory records compiled for law enforcement purposes, but only to the extent that theproduction of such. records 'would: (a) interfere with en- forcement proceedings; (b) deprive a person ofaright to afair trial or an impartial adjudication; (c) constitute an unwarranted Invasion of personal privacy; (d) disclose the identity of a con- fidential source and, in the case of a record compiled by a criminal law en- forcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the con- fidential source; (e) disclose investigative techniques and procedures; or (f) endanger the life or physical safety of lawenforcement personnel; (8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or-for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) Geological and geophysical information and data, including maps, con- cerningwells. (b) The fact that the applicability of

an exemption permits the withholding of

a requested record (or portion thereof) does not necessarily mean that the rec- ord must or should be withheld. See §2.119. §2.119 Discretionary release of exempt documents. (a) An EPA office may, in its discretion, release requested records despite the applicability of one or more of the exemptions listed in §2.118 (a) (2), (a) (5), or (a)(7). Disclosure of such rec- ords is encouraged if no important purpose would be served by withholding the records. (b) As amatter ofpolicy, EPAwill not release a requested record if EPA has determined that one or more of the ex- emptions listed in §2.118 (a) (1), (a) (3), (a)(4), (a)(6), (a)(8), or (a)(9) applies to the record, except when ordered to do so by a Federal court or in ex- ceptional circumstances under applpriate restrictions with the approval of the Office of General Counsel or a Regional Counsel. §2,120 Fees; payment; waiver.

(a) Feeschedule.Fees will becharged requesters for searching for and reproducing requested records, n accordance withthe following schedule: 

### RULES AND REGULATIONS

Record search time (EPA employees), $2.50

perhalfhour. 

### Computer programming time (EPA employees), $4.50 per half hour. Reproduction of documents (paper copy of

paper original), $0.20 perpage. Other costs of searching for or duplicating

records (including

### suchItems as: computer 

### system time; contractor computer pro- gramnming" time; reproduction of photo- graphs, microforms, or magnetic tape; computer printouts; and transportation of records), actual direct cost to EPA.


### Nocharge shallbemade- ,(1) For examination and evaluation ofrecords which have been located and which are knovn to be among those re- 'quested; 

### (2) For the cost of preparing or reviewing 

### letters of response to a request
or appeal; (3) Ifthe total feein connection with

a request is less than $10.00, or if the costs of collecting the fee would otherwise exceed theamount ofthe fee; (4) -'or search time or computer pro- gramming timebyEPA employees, ifless than one half hour of such time was requiredin connectionwith therequest;

(5) Forresponding to arequestforone copyoftheofficialpersonnel recordofthe requester; 

### (6) For furnishing records requested by eitherHouse of Congress, orby a duly authorized committee or subcommittee of Congress, unless the records are requested for the benefit of an individual Member of Congress or for a constituent;

(7) For furnishing records, requested by and forthe official use of other Federal agencies; or

(8) Forfurnishing records needed by

anEPA contractor or granteeto perform the work required by the EPA contract
or grant. (b) Method ofpayment.All fee payments shall be in the form of acheck or money order payable to the order ofthe "U.S. Environmental ProtectionAgency" and shall be sent (accompanied by a reference tothepertinentRequestIdentification Number(s)) tothe appropriate EPA Freedom of Information Officer. (c) Prepaymentorassuranceofpayment. IfanEPAofficedetermines or estimates that the unpaid fees attributable to one ormorerequests by'thd same requestor exceed orwill exceed $25.00, that office need not search for, duplicate or disclose records in response to any request by that requester until the requester pays, " or makes acceptable arrangements to pay, the total amount offees due (orestimated tobecome due) under this section In such a case, the 

### EPA office shall promptly inform the requester (by telephone, if practicable) oftheneedtomake paymentor arrangementsto pay.Seealso §2.112(d).

(d) Reductionorwaiverof fee.Thefee 

### chargeable under this sectios maybe reduced or waived by EPA if the public interest wouldbe served thereby.Reduction orwaiver offees shall be considered (butneednot necessarily be granted) in connection witheach requestfromarepxesentative ofthepress or other communications medium, or from a public interest group. A request for reduction or waiver of fees shall be addressed to the appropriate 

### Freedom ofInformation Officer or to the EPA office which is re- sponding to the request for records, The latter office shall initially determine whether the fee shall be reduced or waived, and shallsoinform the requester, The initial determination may be appealed by letter addressed to the appropriate Freedom of Information Officer. TheDirector of the EPA Office ofPublic Affairs, or the Director's designee In an EPAregional office, shall decide such appeels. § 2.121-§ 2.200 [Reserved]

Subpart B-Confidentiality ofBusiness Information § 2.201 Definitions.

For the purposes ofthis subpart: (a) "person" means an Individual, partnership, corporation, association, or other public or private organization or legal entity, including Federal, State or local governmental bodies and agencies andtheir employees,

(b) "Business" means any person en- gaged in a business, trade, employment, calling or profession, whether or not all

or any part of the net earnings derived from such engagement by such person inure (or maylawfully inure) tothebenefit of any private shareholder or Individual.

(-) "Business Informaltion" (sometimes referred to simply as "Information")

means any Information whichpertains to the interests of any business, which was developed or acquired by that business, and (except where the context otherwise requires) which is possessed by EPA In recorded form. I (d) "Affected business" means, with reference to anItem ofbusinessinformation, 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 aclaim IfIt were
aware that disclosure of the information to the public wasproposed. (e) "Reasons of business confidentiality" include the concept of trade secrecy and other related legal concepts which give (ormay give) abusiness therightto preserve the confidentiality of business Information and to limit Its use or disclosure by others In order that the busi-

ness may obtain or retain business advantages it derives from Its rights in the Information. The definition is meant to encompass any concept which authorizes

aFederal agency to withholdbusiness Information under 5 V.S.C. 552(b) (4), 'as well as any concept which requires EPA to withhold Information from the public for the benefit of abusiness under 18 U.S.C. 1905 orany ofthe various statutes cited in §2.301 through §2.309. (f) [Reserved] (g) Information which Is "available
to the public" is Information in EPA's possession which EPAwill furnish to any member of the public upon request and which EPA may make public, release or otherwise make available to any person

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whether or not its disclosure has been requested.

- (h) -"Business confidentiality claim" (or,simply,"claim") means s claim orallegation that business information Is entitled to confidential tfeatment for

reasons of business confidentiality, or a requestfor a determination that suchinformation is entitled to such treatment. (i) "Voluntarily submitted information" means business information in EPA's possession- (1) The submission of vhichEPA had

no statutory or contractual authority to require; and (2) The submission of -whichwas not prescri ed by statute or regulation as a condition of obtaining some benefit (or avoiding some disadvantage) under a regulatory program of general applicability, including such regulatory programs as permit, licensing, registration. or-certification programs, but excluding
programs concerned solely or primarily with the award or administration by EPA ofcontracts orgrants. (j) 'Recorded" means written or otherwise registered in some form for preserving information, including such forms as drawings, photographs, video- -tape, sound recordings, punched cards, and computer tape ordisk. (k) [Reservedl (1) "Administrator," "Regional Administrator," "General Counsel," "Regional Counsel," and "Freedom of Information Officer" mhafi the EPAofficers

or employeei occupying the positions so titled. , (m) "EPA office" means any organizational element of EPA, at any level

orlocation. (Theterms "EPA, office" and "EPA legal office" are used in this subpart for the sake of brevity and ease of reference. When this subpart requires that an action be taken by an "EPA office" or by anEPA legal office," it is the responsibility of the officer or employee in charge of'that office to take the actionorensure thatitistaken.) (n) "EPAlegal office" means the EPA General Counsel andany EPA office over -which the General Counsel exercises supervisory authority, including the various Offices of Regional Counsel. (See paragraph (in) ofthis section.) (o) A "working day" is any day on -which Federal government offices are open for normal business. Saturdays, Sundays,and officialFederalholidays are not working days; all other days are. § 2.202 Applicability of subpart;priority -where provisions conflict;.records containing more than one kind ofinformation. (a) Sections 2.201 through 2.213 establish basic rules governing business confidentiality claims, the handling by EPA ofbusiness information which is or may be entitled to confidential treatment,- anddeterminations by EPA of -whetherinformation is entitled to confidential treatment for reasons of business confidentiality. (bY Various statutes (other than 5 U.S.C. 552) under which EPA operates contain special provisions concerning the entitlement to confidential treatment of information gathered under such statutes. Sections 2.301 through 2.309 prescribe special rules for treatment of certain categories of business 

### Information obtained under thevarious statutory provisions. Paragraph (b) of each of those sections should be consulted to determinewhether any ofthose sections applies to the particular Information inquestion. (c) Thebasicrules of §§ 2.201 through 2.213 govern except to the extent that they are modified or supplanted by the special rules of §§2.301 through 2.309. In the event of a conflict between the provisions of the basic rules and those of a special rule which is applicable to the particular information In question, the provision of the special rule shall
govern. (d) If twoormore ofthe sections con- taining specialrules apply to the particular information in question, and the applicable sections prescribe conflicting 

### special rules forthetreatment oftheinformation, the rule which provides greater or wider availability to the public of theinformation shallgovern. (e) For most purposes, a document or other record may usefuly be treated as
a single unit of "Information," even though in fact the documentorrecord Is comprised of a collection of individual items ofinformation. However, in applyingthe provisions ofthis subpart,It will often be necessary to separate the individual items of information Into two or
more categories, and to afford different
treatment to the information In each such category. The need for differentiation ofthis tYpe may arise; e.g., because

a business confidentiality claim covers onlyaportion ofarecord,orbecauseonly

aportion oftherecord iseligiblefor confidential treatment. EPA offices taking actionunderthis subpartmustbealertto this problem. (f) In taking actions under this subpart,EPA offices should consider whether it is possible to obtain the affected business's consent to disclosure ofuseful portions ofrecords while protecting the information which is or may be entitled to confidentiality (e.g., by withholding such portions of arecord as would Iden- •tify a business, or by disclosing data In the form of industry-wide aggregates. multi-year averages or totals, or some similar form).

(g) This subpart does not apply to questions concerning entitlement to confidentialtreatment orinformationwhich

concerns an individual solely In hispersonal, as opposed to business, capacity. §2.203 Notice tobe included in EPAre- quests, demands, and forms; method of asserting business confidentiality claim; effect or failuretoasscrt claim
at timeofsubmission. (a) Notice to be included in certain requestsand demandsfor information, and in certain forms. Whenever anEPA officemakes a writtenrequest or demand that a business furnish information which, in the office's opinion, Is likely to beregardedby thebusiness as entitled to confidential treatment under this subpart or whenever an EPA office prescribes a form for use by businesses in furnishing suchInformation, the reques, demand, orform shall include or enclose

a notice which- (1) States that thebusiness may.if it desires, assert a business confidentiality claim covering partorall oftheInformation, in the manner described by paragraph (b) of this section, and that information coveredby such aclaimwillbe disclosed byEPA only to the extent, and by means ofthe procedures, set forth in this subpart;

(2) States that if no such claim accompanies theinformationwhen it isreceivedbyEPA, It maybemade available tothepublicbyEPAwithoutfurthernotice tothebusiness; and (3) Furnishes a citation of the location ofthis subpart Inthe Code-of Federal Regulations and the F'rEnR. R.-
1STMR

(b) Methodandtimeofassertingbusiness confidentiality claim. A business which is submitting information toEPA may assert a business confidentiality claim covering the information by placingon (orattaching to) theInformation.
at the time It Is submitted to EPA. a

cover sheet, stamped ortyped legend, or other suitable form3 ofnotice employing language such as "trade secret," "proprietary," br "company confidentiaL" Allegedly confidential portions of otherwise non-confidential documents should be clearly Identified by thebusiness, and maybesubmitted separately tofacilitate Identification and handling by EPA. If the business desires confidential treatment only until a certain date or until the occurrence of a certain event, the notice shouldso state. (c) Effect of failureto assertclaim at time ofsubmission ofinformation.IfInformationwas submittedby a businessto EPA on or after [the effective date of this subpart], In response to an EPA request or demand (or on an EPA-prescribed form) which contained the substance of the notice required by paragraph (a) ofthis section, andif nobusiness confidentiality claim accompanied the information when it was received by EPA, the inquiry to the business normally required by §2.204(c) (2) neednot be made. If a claim covering the information is received after the information Itselfisreceived,EPAwillmake such efforts as are administratively practicable toassociatethe lateclaim with copies ofthe previously-submitted information in EPA files (see §2,204(c) (1)). However,EPAcannot assurethatsuchefforts will beeffective, in lightofthe possibility of prior disclosure or widespread prior dissemination of the information. § 2.204 1nitialactionbTEPAoffice.

(a) Situations requiringaction-Th section prescribes procedures tobe used by EPA offices in making initial deter- * minations ofwhether business Informa- * tion isentitled toconfidential treatment

for reasons of business confidentialitMYFEDERAL REGISTER, VOL 41, NO. 171-WEDNESDAY, SEPIEMBE 1, 1976 

### 36907

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### 36908

Action shall be taken under this section whenever anEPAoffice: (i) learis that it Isresponsible forresponding to arequest under5 U.S.C. 552 for the release of business information; in such a case, the office shall issue an initial' determination within the period specified in §2.112;

(if) desirestodetermine whetherbusiness information in its possession is entitled to confidential treatment, even though no request for felease of thein

### formation has been received; or (ii) determines that it is likely that EPA eventually will be requested to disclose the information at some future date and thus will have to determine whether the information is entitled to confidential treatment. Int such a case this section's procedures should be initiated atthe earliest practicable time,in order to Increase the time available for preparation andsubmission ofcomments and for issuance of determinations, and to make easier the task of meeting response deadlines if a request for release of theinformation is laterreceived under 5V.S.C.552. (b) Previous confidentiality determination.The EPA office shall first ascertain whether there has been a previous determination, issued by a Foeral court
or by an EPA legal office acting under this subpart, holding that the information inquestionis entitled toconfidential treatment for reasons of business confidentiality. (1) Ifsuch a determination holds that the information is entitled to confidential treatment, the EPA office shall furnish any person whose request for the information is pending under 5 U.S.C. 552 an initial determination (see §2.111 and §2.113) that the information has previouslybeen determined tobe entitled to confidential treatment, and that the request is therefore denied. The office shall furnish such person the appropriate case citation or EPA determination. If the EPA office believes that aprevious determination which was issued by an EPA legal office may be improper orno longer valid,theoffice shallsoinformthe EPA legal office, which shall consider taking action under §2.205(h). (2) With respect to all information notknown tobe coveredby such aprevious determination, the EPA office shall take action under paragraph (c) of this section.

(c) Determiningexistence ofbusiness confidentialityclaims. (1) Whenever action under thisparagraph is required by paragraph (b) (2) ofthissection,theEPAofficeshall examine the information and the office's records to determine which businesses, if any, are affected businesses (see §2.201 (d)), and to determine which businesses if any, have asserted business confidentiality claims whichremain applicable to theInformation. If anybusinessis found tohave asserted anapplicable claim, the office shall take action under paragraph

d) of this section with respect to each such claim.

(2)(i) If the examination conducted under paragraph (c) (1) of this section RULES AND REGULATIONS

disclose$ the existence of any business ,which, although it has not asserted 

### a claim, might be expected to assert a claim ifit knew EPAproposed to disclose theInformation, theEPAoffice shallcon- tact a responsible official of each such business to learn whether the business asserts a claim covering theInformation. However, no such inquiry need be made to any busifess- (A) which failed toassert a claim cov- ering the Information when responding to anEPA request or demand, orsupplying information on an EPA form, which contained the substance of the statements prescribed by §2.203(a); (B) which otherwise failed to assert a claim covering the information after being informed by EPA that such failure couldresult indisclosure oftheinformation tothepublic; or (C) which has otherwise waived or withdrawn aclaim coveringthe information. (ii) If a request for release of the information under 5 U.S.C. 552 is pending at the time inquiry is made under this paragraph (c) (2), the inquiry shall be made by telephone or equally prompt means, and the responsible official con- tacted shall be informed that any claim the business wishes to assert must be brought to the EPA office's attention no later than thi close of business on the third working day after such inquiry. (if) A record shall be kept ofthe re- sults ofanyinguiryunder thisparagraph (c) (2). If any business makes a claim covering the information, the EPA officeshall takefurther action underparagraph (d) of this section. (3) If, after the examination under paragraph (c) (1) of this section, and after anyinquiry made under paragraph (c) (2) of this section, the EPA office knows of noclaim covering the information and thetime for response to anyinquiry has passed, the information shall be treated for purposes of this subpart as not entitled to confidential treatment. (d) Preliminary determination. When-

ever action under this paragraph is re- quired by paragraph (c) (1) or (c) (2) of this section on any business's claim, the EPA office shall make a determination with. respect to each such claim. Each determination shall be made after con- sideration of the provisions of §2.203, the applicable substantive criteria in §2.208 or elsewhere in this subpart, and any previously-issued determinations under this subpart which are applicable. (1) If, in connection with any business's claim, the office determines that the information may be entitled to con- fidential treatment, the office shall- (i) Furnishthe notice of opportunity tosubmit comments prescribed byparagraph (e) ofthissection toeach business which is known to have asserted an applicable claim and which has not previously been furnished suchnotice withre- gard to theinformation in question;

(li) Furnish, to any person whose re- quest for release of the information Is pendingunder 5 U.S.C. 552, a determination (in accordance with §2.113) that the information may be entitled to confcljentlal treatment under this subpart and 5 U.S.C. 552(b) (4), that further inquiry by EPA pursuant to this subpart is requked before a final determination

on the request can be Issued, that the person's request is therefore initially donied, and that after further Inquiry a final determination will be issued by an EPAlegal office; and

(il) Refer the matter to the appropriate EPA legal office, furnishing the information requiredby paragraph (f) of this section.

(2) If, in connection with all applicable claims, the office determines that the information clearly Is notentitled to confidential treatment, the office shall take the actions required by §2,205(f). However, if a business has previously been furnished notice under §2.205(f) with respect to the same Information, no further notice need be furnished to that business. A copyof each notice furnished to a business under this paragraph (d) (2) and §2.205(f) shall be forwarded promptly to the appropirate EPA legal office.

(e) Notice to affected businesses;opportunitytocomment. (1) Whenever required by paragraph (d) (1) of this section, the EPA office shall promptly furnish each business a written notice stating that EPA Is determining under this subpart whether the Information Isentitled toconfidential treatment, and affording the business an opportunityto comment.Thenoticeshall be furnished by certified mail (returnre- ceipt requested), by personal delivery, or by other means which allows verification of the fact and date of receipt. The notice shall state theaddress ofthe office to which the business's comments shall be addressed (the appropirate EPA legal office, unless the General Counsel has directed otherwise), the time allowed for comments,andthemethodforrequesting

a time extension under §2,205(b) (2). The notice shall further state that EPA will construe a business's failure to furnish timely comments as a waiver of the business's claim. (2) If action'under this section is oc- casioned by a request for the Informiation under 5 U.S.C. 552, the period for
comments shall be 15 working days after the date of the business's receipt of the written notice. In other cases, the EPA office shall establish a reasonable period for comments (not less than 15 working days after the business's receipt of the written notice). In all cases, the notice shall call the business's attention to the provisions of§2.205(b). (3) At or about the time the written notice is furnished, the EPA office shall orally Inform a responsible representative of the business (by telephone or otherwise) that the business should ex- pect to receive the written notice, and shall request the business to contact the EPA office if the written notice has not been received within a few days, so that EPAmayfurnish a duplicate notice. (4) The written notice required by paragraph (e) (1) ofthis section shallInvite the business's comments on the folFEDERAL REGISTER, VOL. 41, NO. 171-WEDNESDAY-,- SEPTEMBEk 1, 1976

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### RULES AND REGULATIONS

lowing points (subjectto paragraph (e) (5) ofthis section): (D The portions of the Information which are alleged to be entitled to con- fidential treatment; -(l) Theperiod oftimefor whichcon- fidential treatment is desired by the business -(e.g., until a eertaln date, until the occurrence of a specified event, or permanently); (III) The purpose for which the Information was furnished to EPA and the approximate date of submission, If known; (iv) Whether abusiness confidentiality claim,- accompanied the information whenit was receivedbyEPA; (v) Measures takenby thebusiness to guardagainst undesired disclosure ofthe information to others; (vi) The extent towhichtheInformation has been disclosed to others, and the precautions taken in connection therewith; " (vii) Pertinent confidentiality determinations, If any,by EPA or other Federal agencies, and a copy of any such determination, orreference toit, Ifavailable; (viii) Whether the business asserts that disclosure ofthe Information would be likely to result in substantial harmful effects on the business's competitive position, and If so, what those harmful effects -would b6, why they should be viewed as substantial, and an explanation of the casual relationship between disclosure and such harmful effects; and (lx) Whether thebusiness asserts that theinformation Is voumtqrily submitted Information as deflned-In § 2.201(1), and if so, whether and why disclosure ofthe information, would tend to lessen the availability to EPA of similar informationin thefuture.

(5) To the extent that the EPA office already possesses the relevant facts, the notice need not solicit responses to the matters addressed In paragraphs (e) (4) 

### (i) through 

### (e) (4) 

### (ix) of this section, although the notice shall request con- 

### 'firmation ofEPA'sunderstanding ofsuchfacts where aiproprate. (6) Thenotice shallrefer to §2.205Cc) and shall include the statement prescribed by 12.203 (a). (f) Materialsto befurnishedto EPA ZegaZ office. When a matter is referred to an EPA legal office under paragraph (d) () of this section, the EPA office taking action under this section shall forward promptly to theEPAlegal office thefollowing-items: (1) A copy of theInformation n question, or (where the quantity or form of the Informationmakesforwarding acopy of the Information impractical) representative samples, a description of the information, orboth; (2) A description ofthe circumstances and date of EPAs acquisition ofthe Information; (3) The name, address, and telephone number of the EPA employee(s) most familiar with the information; (4) The name, address and telephone number of each business which asserts an applicable business confidentiality claim;

(5) A copy of each applicable claim (or the record of the assertion of the claim), and a description of when and how each claim was asserted:

(6) Comments concerning each buslness's compliance ornoncompliance with applicable requirements of §2.203;

(7) A copy of any request for release of the Information pending under 5 U.S.C. 552; (8) The office's comments concerning the appropriate substantive criteria un- derthissubpart, andinformation theoffice possesses concerning the Information's-entitlement to confidential treatment; and (9) Copies of other correspondence or memoranda which pert-aintothe matter. 

### §2.205 Final confidentiality detrninationbyEPA legaloffice. (a) Role ofEPA legaloffice. (1) The appropriate EPA legal office (seeparagraph (i) ofthissection) Is re- sponsible for making the final administrative determination of whether or not business information covered by a busi-

ness confidentiality claim Is entitled to confidential treatment under this subpart. (2) When a request for release of the information under 5 U.S.C. 552 ispend- ing, the EPA.legal office's determination shall serve as the final determination on appeal from an initial denial of the re- quest.

(D If the Initial denial was issued under §2.204(b) (1), a final determination by the EPA legal office is necessary onlyiftherequestorba3 actually fled an appeal.

(ii) If the Initial denial was Issued under §2.204(d) (1), however, the EPA legal office shall Issue a final determlnation ii every case,unless the request has been withdrawn. (Inlt dl denials under §2.204(d) (1) are of a procedural nature, to allow further Inquiry into the merits ofthe matter,and a requester is entitled toa decision onthemerits.) Ifan appeal from such a denial has notbeen received by the EPAFreedom of Information Officer on the tenth working day after issuance ofthe denial, thq matter shall be handled as If an appeal had been re- ceived on that day, for purposes of es- tablishing a schedule for issuance of an appeal decisionunder §2.117 ofthispart.



### (b) Comment

### period;extensions;untimelinessaswaiverofclaim.

(1) Each businesswhichhas beenfurnished the notice and opportunity to commentprescribed by §2-204(d) (1) and §2.204(e) shall furnish Its comments to the office specified In the notice in ta

manner reasonably calculated to result In receipt ofthe comments bythat office not later than the date specified forre- ceipt in the notice (or the date establishedin lieuthereofunder thissection). (2) The periodfor submision of com- ments may be extended if, before the comments are due, a request for an ex- tension of the comment ptlod Is made by thebusiness andapproved bytheEPA 

### 36909

legal office. Except in extraordinary cir

### cumstances, the EPAlegal office will not approve such an extension without the consent of any person whose request for release oftheInformation -under5U.S.C. 552 ispending.

(3) Theperiod forsubmissionofcomments by abusiness may be shortenedin the manner described Inparagraph (g) ofthis section. (4) Ifabusiness's comments havenot been received by the specified EPA office

onthe date they are due, thatoffice shall promptly inquire whether the business has complied with paragraph (b) (2) of this section. If thebusiness has complied but the comments have been lost In transmission, duplicate comments shall be requested. (c) Confildential treatment of com- mentsfrombusiness. If information submitted toEPA by abusiness aspartofIts comments underthis section pertains to the business's claim, is not otherwise possessed by EPA, and Is marked when received in accordance with §2.203(b), It will be regarded by EPA as entitled to confidential treatment and will not be disclosed by EPA withoutthe businesss consent, unless Its disclosure Is duly ordered by a Federal court, notwithstanding otherprovisions of this subpart to the contrary. (d) Tpes of final determinatiors;
mattersto be considered. (1) If theEPA legal office finds that a business has failed to furnish comments under paragraph (b) ofthis sectionin a
manner reasonably calculated to result in receipt ofthecomments notlaterthan the date the comments were due, it shall determine that the business has waived Its claim. If, after application of the preceding sentence, no claim applies to the information, the office shall determine that theinformation Isnot entitled to confidential treatmentunderthissubpart and, subject to §2.210, Is available to the public.

(2) In all other cases, the EPA legal office shallconsider eachbusinesss claim and comments, the various provisions of this subpart, any previously-Issued determinations under this subpart which

ae pertinent,the materials furnished It under I 2.204(D, and such other materialsas It finds appropriate.Withrespect to each claim, the office shall determine whether or not the information is en- titled to confidential treatment for the benefit ofthe business that asserted the claim, andtheperiodofanysuch entitlement (e.g.,until acertafn date,until the

occurrence of a specified event, orper- manently), andshall take further action under paragraph (e) or CM of this sec- tion, as appropriate. (3) Whenever the claims of two or
more busineses apply tothe same information,theEPAlegalofficeshalltake ac- tion appropriateunderthepartleularcr- cumstances toprotect theinterests ofall persons concerned (including anyperson whose request for the- information is pending under 5 U.S.C. 552). (e) Determinationthatinformationig entitledto confidentialtreatment. If the

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### 36910

EPA legal office determines that the Information is entitled to confidential treatment for the full period requested by the business which made the claim, EPA shall maintain the information in confidence for such period, subject to paragraph (h) of this section, §2:209, and the other provisions of this subpart which authorize disclosure In specified circumstances, and the office shall Zso inform the business. If any person's re- quest for the release of the information is then pending under 5 U.S.C. 552, the EPA legal office shall issue a final determination denying thatrequest. (f) Determinationthatinformationis not entitled to confidential treatment; notice; waiting period; release of information. (1) Notice of denial (orpartial denial) of abusiness confidentiality claim,in the form prescribed byparagraph (f) (2) of thissection, shallbefurnished-

(1) By the EPA office taking action under §2.204, to each business onbehalf of which a claim has been made, when-
ever §2.204(d) (2) requires such notice; and

(i) By the EPA legal office taking action under this section, to each busi-

ness which has asserted a claim appli- cable to the Information and which -has furnished timely comments underpara- graph (b) ofthis section, whenever the EPA legal office determines that the Information is not entitled to confidential treatment under this subpart for the benefit of the business, or determines that the period of any entitlement to confidential treatment is shorter than thatrequested by thebusiness. (2) The notice prescribed by para- graph (f) (1) of this section shall be 'written, and shall be furnished by cer- fled mail (return receipt requested), by personal delivery, or by'- other

means which allows verification of the fact of receipt and the date of receipt. The notice shall state the basisforthe determination, that it con- stitutes final agency action concern- ing the business confidentiality -claim, and that such'final agency action may be subject tojudicial reviewunderchapter 7 of title 5,United States Code.With respect to EPA's implementation ofthe determination, the notice shall state that (subject to §2.210) EPA will make the information available to the public on the tenth working day after the date of the business's re- ceipt of the written notice (or on suci later date as is established in lieu thereof by the EPA legal office under paragraph f) (3) of this section), unless the EPA legal officehas firstbeen notified of thebusiness's commencement of an action in a Federal court to obtain judicial review ofthe determination, and to -obtain preliminary injunctive relief against disclosure. The notice shall furthef state that ifsuchan actionIstimely commenced, EPAmay nonetheless make the Information available to the public (in the absence of an order by-the court to the contrary), once the courthas denied a motion for a -preliminaryinjunction In the acton or has otherwise upRULES AND REGULATIONS

held the EPA determination, or when-

ever it appears to the EPA legal office, after reasonable nbtice to the business, thatthebusiness is nottaking appropriate measures to obtain a speedy resolution, of the action. If the information hasbeen foundtobetemporarily entitled to confidential' treatment, the notice shall further state thatthe Information will not be disclosed prior to the end ofthe period of such temporary entitlementtoconfidential treatment. (3) The period established in a notice under paragraph (f)(2) of this section 'for commencement of an action to obtainjudicial review may be extended If, *beforethe expiration ofsuchperiod, are- quest for an extension is made by the business and approved by theEPA legal office. Except in extraordinary circumstances, the EPAlegal office willnotapprove such an extension without the consent of anyperson whose request for release oftheinformationunder 5 US.C. 552Ispending.

(4) After the expiration of any period oftemporary entitlement to confidential treatment, a determination under this paragraph (M shall be implemented by the EPA legal office by making the information available to thepublic (in the absence of a court orderprohibiting disclosure) whenever- (t) The period provided for com- mencement by a business of an action to obtain judicial ieview of the deteriniation has expired without notice to the EPAlegal offce ofcommencement of such anaction; CiD Thecourt,ina timely-commenced action, has denied the business' motion for a preliminary injunction, orhas otherwiseupheldthe EPA determination; or

(liM The EPA legal office, after rea- sonable notice has been provided to the business, finds that'the business is not taking appropriate measures to obtain a 

### speedy resolution of the timely-commenced action. (5) Any person whose request for re- lease of the Information under.5 U.S.C. 552 ispending at the timenotice is given under paragraph f) (2) of this section shallbefurnished adetermination under 5 U.S.C. 552 stating the circumstances under which the information will be released. (g) EmergencyZituations.Ifth~e General Counsel finds that disclosure of information covered by a claim would be helpful in alleviating a situation posing

an imminent and substantial danger to publichealth or safety, hemayprescribe and make known to interested persons suchshorter cerementperiod (paragraph (b) of this section), post-determination waiting period (paragraph (f) of this section),-or both, as he finds necessary underthecircumstances.

(h1) ModificationofPriordeterminations. A determination that information is entitled to confidential treatment for thebenefitofabusiness, made underthis subpartbyanEPAlegal office, shall con- tinue in effect in accordance withi its terms untilanEPAlegal office taking ac- tion -underthis section, or under §2.206

or §2.207, Issues a final determination stating that the earlier determination

no longer describes correctly the Information's entitlement to confidential treatment because of change in the applicable law, newly-disc6vercd or changed facts, or because the earlier determination was clearly erroneous. If

an EPAlegal office tentatively concludes that such an earlier determination is of questionable validity, It shall so inform the business, and-shall afford the busi-

ness anopportunity to furnishcomments
on pertinent Issues in the manner doscribed by §2.204(e) and paragraph (b) ofthis section, if, after consideration of any timely comments submitted by the business, the EPA legal office makes a revised final determination that the information is not entitled to confidential treatment, or that the period of entitlement to such treatment will end sooner than Itwouldhave ended under theear- lier determination, the office will follow the procedure, described in paragraph (f) ofthis section.Dleterminations under this section may be made only by, or with the concurrence of, the General CounseL

(I) Delegationandredelegationofau- thority. Unless the General Counsel otherwise directs, or this subpart otherwise specifically provides, determinations and actions required by this subparttobe made ortaken by anEPAlegal office shall be made or taken by the ap- propriateRegional Counsel whenever the EPAoffice taking action under §2,2f4 or §2.206(b) is under the supervision of a Regional Administrator, and by the General Counsel in all other cases. The General Counsel may redelegate any or all ofhis authority under this subpart to any attorney employedbyEPA onafulltime basis under the General Counsel's supervision.A Regional Counsel may ro- delegate any oraUl ofhis authorityunder this subpart to any attorney employed by EPA on a full-time basis under the Regional Counsel'z supervision.
§2.206 Advance confidentiality deterininations. (a) An advance determination under this section may be issued by an EPA legal office if- (1) EPA has requested or demanded that a business furnish business informationtoEPA; (2) The business asserts that the Information, if submitted,would constitute voluntarily submitted informationunder §2.201(1) ;

(3) The business will voluntarily submit the information foruse by EPA only IfEPAfirst determines thatthe Information is entitled to confidential treatment underthis subpart; and (4) TheEPA office which desires submission of the information has request- edthat theEPAlegal office Issuea detorminationunderthissection.

(b) The EPA office requesting an ad-

vance determination under this section shall-

(1) Arrange tohave the business furnish directly to the EPA legal office a copy of the information (or, whero feasible, a description of the nature of

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### RULES AND REGULATIONS

the information sufficient to allow a,determination to be made)Yas well as the business's comments concerning the matters addressed In §2.204(e) (4), excluding, however, matters addressed in §2.204 (e) (4)(11i) and (e) (4) (v) * and

(2) Furnish tothe EPAlegal office the materials referred to in §2.204 (f)3), (f)(7), (f)(8), and'(f) (9)..

(c) In making a determination under this section, the'EPA legal office shall first determine whether or not the information would constitute voluntarily submitted Information under §2.201(1). If the information-would constitute voluntarily submitted information, the legal

-bffice shall

-further

- determine whether the information Is entitled to confidential treatment. (d) If the EPA legal-office determines that the information would not constitute voluntarily submitted Information,

or determines that It would constitute voluntarily submitted. Information but would not be entitled to confidential treatment,it shallso Inform thebusiness and the EPA office which requested the determination- stating the basis of the determination, and shall return to the _business all copies of the information -which it may have received from the, business (exceptthat If a request under 5 U.S.C. 552 for release of the information is received while the EPA legal office is in possession of the information, the legal office shall retain a copy of the Information, but shall not disclose it unless ordered, by a Federal courtto do so). The legal office shall not disclose the information to any other EPAoffice or employee and shall notuse the information for any purpose except the determinatioin under this section, unless otherwise directed by a Federal court. 4 (e) Tf the EPA legal office determines that the information would constitute voluntarily submitted information and that it is entitled to confidential treatment, it shall so inform the EPA office which requested the determinition and the business which submitted It, and shall forward the Information to the EPA office which requested the determination. 

### §2.207 Class determinations.

(a) The General Counsel may make -and issue a class determination under this section ifhefinds that- (1) EPApossesses, oris obtaining, re- lated items ofbusiness inforination; (2) One or more characteristics com-
mon to allsuch items ofinformation will necessarily result in identical treatment for each such item under one or more of the provisions in this subpart, and that it is therefore proper to treat all such items as a class forone ormore purposes under this subpart; and

(3) A-class determination would serve
-auseful purpose. (b) A class determination shall clearly identify the class of Information to which it pertains. (c) A class determination may state thatall oftheinformation inthe class--

(1) Is, orIs not,voluntarily submitted Information under §2.201(1) ; (2) Is, or Is not, governed bya partic- ular section of-this subpart, or by aparticular set of substantive criteria under this subpart; (3) Fails to satisfy one ormore ofthe applicable -substantive criteria, and Is therefore ineligible for confidential 

### treatmentl (4) Satisfies oneormore ofthe applicable substantive criteria; or (5) Satisfies one or more ofthe appll cable substantive criteria during a cer- tainperod,butwillbe ineligiblefor con- -fdential treatment thereafter. (d) Thepurpose ofa class determination is simply to make known the Agency's position regarding the manner in which Information within the class will be treated under one or more ofthe provisions of this subpart. Accordingly, the notice of opportunity to submit com- 

### ments -referred to in §2.204(d) (1)(i and §2.205(b), and the list ofmaterials required to befurnished to theEPAlegal 

### office under §2.204(d) (1)(I), may be modifiedto reflect the factthat theclass determination hasmadeunnecessary the submission ofmaterials pertinent toone
or more issues. Moreover, In appropriate cases, actionbased ontheclass deter

### mination maybe takenunder §2.204(b) (1), §2.204(d), §2.205(d), or §2.20(, However, the existence of -aclass determination shall not, of Itself, affect any right a business may have toreceive any 

### notice under §2.204(d) (2) or §2.205(f). 

### §2.208 Substantive crteria for ue in confidentialitydeterminations. Determinations issued under § 2.204 through 2.207shall holdthatbusinessinformation is entitled to confidential treatment for thebenefit ofaparticular business if- (a) The business has asserted abusl-.

ness confidentiality claim vhich hasnot expiredbyIts terms,norbeenwaived nor withdrawn; (b) The business has satisfactorily shown that It has taken reasonable

measures to protect the confidentiality oftheinformation, andthatItintends to continue to take suchmeasures; (c) The information is not, and has notbeen, reasonably obtainable .without the business's consent by other persons (other thangovernmental bodies) byuse of legitimate means (other than discovery based on a showing of special need in a judicial orquasi-judicial pro- ceeding) ; (d) No statute specifically requires disclosure of the information; and

(e) Either- (l) The business has satisfactorily shown that disclosureoftheinformation islikely to cause substantialharm tothe businesss competitive position; or (2) The information Is voluntarily submitted information (see §2.201(t)), and its disclosure wouldbe likely toimpair the Government's ability to obtain necessary information inthe future. 

### §2.209 Disclosure in spccial drcumstances. 

### (a) General.Informationwhlch,under this subpart,isnotavailable tothepublic maynonetheless be disclosed tothepersons, andin the circumstances, described by paragraphs (b) through (f) of this section. (This section shall not be con- strued to restrict the disclosure of Itermationwhich has been determined to be available to the public.)

(b) Disclosure to Congress or the ComptrollerGeneral Upon recept of a written request in appropriate form, EPAwill disclosebusiness information to eitherHouse ofCongress, to a committee

or subcommittee of Congress, or to the Comptroller General, unless a statute forbids such discloure. In making such

a disclosure, EPA will Inform the re- questingbody ofanyunresolved buskes confidentiality claim known to cover the information, and of any determination by EPA under this subpart holdingthat theinformationIsentitledtoconfidential treatment. c) Disclosureto other Federalagenies.EPAmay disclosebusiness information to another Federal agency If- (1) EPAreceives a written request for disclosure oftheinformation from a duly authorized ofcer or employee of the other agency; (2) The request sets forth the offical.. purpose for which the information is needed; (3) EPA notifies the other agency of any unresolved business confidentiality claim covering the Information, and of any determination under this subpeat holding that the information is entitled toconfidential treatment; and (4) Theotheragency agreesnottodisclosethe Information further unles-

(D The other agency has statutory authority both to compel producton of the information and to make the proposed disclosure; (f1) The otheragencyhas obtainedthe consent of each affected business to the proposed disclosure; or (ill) The other agency has obtained a

- written statement from theEPA Genera

CounseloranEPARegional Counselthat disclosure of the Information would be proper under thissubpart. (d) Court-ordered disclosure. EPA may disclose any business information inthe manner and to the extent ordered byaFederal court.

(e) Disclosure within EPA. An EPA office, officer, or employee may disclose anybusiness informationto anotherEPA office, offIcer, oremployee with an official needfor theinformation. f) Disclosurewith consent of busf-

ness. EPA may disclose any business Information to anyperson IfEPA has obtained the prior consent of each affected business to such disclosure. (g) Recordof disclosurestobe izaintained.Each EPA office which discloses Information to Congress, a committee or subcommittee of Congress, the Comptroller General, or another Federal agency undertheauthority ofparagraph (b) or (c) of this section, shall maintain a record of the fact of such disclosure for a period ofnot less than 36 monthsafter such disclosure.Sucharec- ord, which may be in the form ofa log, shall showthename ofthe affected-businesses,the date of disclosure, theperson
or body to whom disclosure was made,

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### 36912

and a description of the Information disclosed. §2.210 Nondisclosure for reasons other thanusiness confidentiality orwhere disclosure is prolibitedlylother statute. (a) Information which is not entitled
to confidential treatment underthis subpart shall be made availAble to thepublic (using the procedures set forth in §§2.204 and 2.205) if its release is requested under 5 U.S.C. '552, unless EPA determines (under subpaxt A of this part) that, for reasons other than reasons of business confidentiality, the information is exempt from mandatory disclosure and cannot or should not be made available to the public. Any-such determination under subpart A shall be coordinated with actions taken under this subpart for the purpose ofavoiding delay In responding to xequests under 5 U.S.C. 552. (b) Notwithstanding any other provision of this subpart, if any statute not cited in this subpart appears to require EPA to give confidential treatment to any business information for reasons of business confidentiality, thematter shall be referred promptly to an EPA legal office for resolution. Pendilig resolution, such information zshall be -treatedas if it were entitled to confidential treatment. 

### § 2211 Safeguarding of busincss inforination; penaltyfor wrongful dLsco-

sure. (a) No EPA 

### officer or ,employee may disclose,or useforhids orherprivategain

or advantage, any buiness information which came into his or her possession,

or to whichhe or ,she,gainedaccess, by virtue of his or her official position or employment, except as authorized bythis subpart. (b) Each EPA officeror employee who has custody or possession of business information shall take appropriate measures to properly safeguard such information and to protect -against its improper disclosure. (c) Violation ofparagraphs (a) or (h) of this section shall constitute grounds for dismissal, suspension, fine, or other adverse personnel action. Willful violation of paragraph (a) of this section mayresult incriminal prosecution under 18 U.S.C. 1905 or other applicable
statute.

(d) Each contractor with EPA, and each employee of such contractor, who is furnished business information, by EPA under §2.301(h), §2.302(h), §2.- 

### 304(h), §2.307(h), or §2.308(1), shall

use or disclose that information only as permitted by the contract under which the information was furnished. Any violation of this paragraph shall constitute grounds for debarment or suspension of the contractor or contractor's employee In question. Willfulviolation ofthis paragraph may result in criminal prosecution. 

### RULES AND REGULATIONS

§2.212 Establishment of control offices for categories of business information. (a) The Administrator,by order,may establish one ormore -mutuallyexclusive categories of business information, and may designate for each such category

an EPA office (hereinafter referred to

as a "control office') which shall have responsibility for taking actions ,(other than actions required to be taken by an EPAlegal office) with respect to all informationwithin such category. (b) if a control office bas been as- -signed responsibility for a category of business Information, no other EPA offlce,officer, oremployee maymake available to thepublic (or otherwise disclose to persons other than EPA officers and employees) any information in that category withoutfirst obtaining the concurrence of-the control office. Requests under 5 U.S.C. 552 for release ofsuchinformation shall be referred to the con- troloffice.

- (c) A control office shall take the 

### actions and make the determinations required by §2.204'wvith respect to all information in any category for which the control office has been assigned responsibility.

(d) A control ofce shall maintain a record of the following, with respect to items of business information In categories for which it has been assigned xesponsibility: , Cl) Business confidentiality claims;_,, (2) Comments submitted insupport of claims; (3) Waivers and withdrawals of claims; (4) Actions -and determinations by EPAunder thissubpart; (5) Actions-by Federalrcourts; and (6) Related Information concerning business confidentiality. 

### §2.21& Designation by business of addresseefornoticesandinquiries. (a) Abusiness which wishes to deslgnatea person or office as the proper addressee of communications from EPA to -the business under this subpart may do

so by furnishing in writing tc the'Freedomof Information Officer (A-101), Environmental Protection Agency, 401 M St. SW., Washington, D.C. 20460, the following information: thename andaddress of the business making the designation; thename,address, andtelephone number of the designated person or office; and a request that EPA inquiries and communications (oral and written) under this subpart, Including inquiries and notices which require reply within deadlines If the business is to avoid waiver of its rights under this subpart, befurnishedto the designee pursuant to. this section. Only one person or office may serve at any onetime as abusiness's designee underthis subpart. (b) Ifa businesshasnamed adesignee under thissection, the followingEPA in- 'qurles and notices to the business shall be addressed tothe designee:

FEDERAL REGISTER, VOL 41, NO. 171-WEDNESDAY, SEPTEMBER 1, 1976 (1) Inquiries concerning a business's desire to assert abusiness confldentality claim,under § 2.204(c) (2) (1)(A); (2) Notices affording opportunity to substantiate confidentiality claims, under §2.204(d) (1) and §2.204(c);

(3) Inquiries concerning comments, under §2.205(b) (4); (4) Notices of denial of confidential 'treatment andproposed disclos),re of Information,under §2.205() ; (5) Notices concerning shortened
comment and/or waiting periods under §'2.205(g);

(6) Notices concerning modifications

or overrulings of prior determinations, under §2.205(h) ;and (7) Notices to affected businesses un- der §2.301(g) and §2.301(h), and analogous provisions in §2.302, §2.303, and §2.304.

(c) Busihesses making designations under this section should bear In mind that several working days may be re- quired forthe dissemination withinEPA of information concerning such designations. §§ 2.214-2.300 [Reserved] §2.301 Special rules governing cerlain information obtainedundertheClean AirAct. (a)Definitions.For the purpose ofthis section:

(1) "Act" means the Clean Air Act, as amended, 42-U.S.C. 1857 et seq.

(2) (1) "Emission data" means, with reference to any source of emission of
anysubstance Into the air-

(A) Information necessary to determine the identity, amount, frequency, concentration, or other characteristics (to the extent related to air quality) of any emission which has been emitted bythesource (orof anypollutant resulting from any emission by the source), or any combination of the foregoing; (B) Information necessary to determine the identity, amount, frequency, concentration, or other characteristics (to the extent related to air quality) of theemissions which, under anapplicable standard or limitatlon, the source was authorized to emit (including, to the extent necessary for such purposes, a description ofthemanner orrate ofoperation ofthesource); and

(C) A general description of thelocation and/or nature of the source to the extent necessary to Identify the source and to distinguish It from other sources (ncluding; to the extent necessary for such purposes, a description of the device,installation, or operation constitutingthe source). (I) Notwithstanding paragraph (a) (2) (1) of this section,' the following information shall be considered to be "emission data" onlytotheextent neces- sary to allow EPA to disclose publicly that a soure is (oris not) In compliance with an applicable standard or limitation, orto allow EPAto demonstrate the feasibility,practicability, or attainability (orlack thereof) of an existing or proposed -standardorlimitation:

/

HeinOnline -- 41 Fed. Reg. 36912 1976(A) Information concerning research.

orthe results ofresearch,onanyproject method, device or installation (or any component thereof) whichwas produced. developed, installed, and used only for research purposes; .and (B) Information concerning anyproduct, method, device, or installation (or any component thereof) designed and intended to be marketed or used com- mercialy but not yet so marketed or used. (3) "Standard or limitation" means any emission standard or limitation es- tablished or'publicly proposed pursuant to theAct orpursuant to anyregulation under the Act. (4) "Proceeding" means any rulemaking. adjudication, or licensing conducted by EPA under the Act or under regula- tions -which Implement the Act, except for determinations under this subpart, (5) "Manufacturer" has the meaning given it-in section 214(1) ofthe Act, 42 U.S.C..1857f-7(1).

(b) Applicability. (1) This section applies to business Information which 

### Vas- -() Provided orobtainedunder section 114 ofthe Act, 42 U.S.C. 1857c-9, by the

owner or operator of any stationary source,forthepurpose (A) ofdeveloping

or assisting in -thedevelopment of any implementation plan under section 110
or:111(d() ofthe Act.,42 U.S.C. 1857c-5, 1857c-6(d), anystandard ofperformance under section 111 ofthe Act, 42 U.S.C. 1857c-6, or any emissi standard under section'll2 of theAct,42 U.S.C. 1856c-7, (B) -of determining whether any person is in violation of any such standard or anyrequirement ofsucha plan,or (C) of carrying out section 119 or 303 of the Act, 42U.S.C. 1857c-10. 1857h-1; (i Providedorobtainedundersetion 

### 208 ofthe Act,42 U..C. 1857f-6, byany manufacturer, for the purpose of en- abling the Administrator to determine whether suchmanufacturer has acted or Is acting in compliance withtheAct and regulationsunder theAct; or

(iii) Provided In' response to a subpoena for the production ofpapers, books, ordocuments Issuedundertheau- thority of section 307(a) of the Act. 42 

### 'U.S.C. 1857h-5(a). (2) Information will be considered to have been provided or obtained under section 114 ofthe Act if it was provided inresponseto request byEPAmadefor any ofthe purposes stated insection 114,

or if its submission could have been re- quired under section 114, regardless of whether section 114was cited as theau- thority for anyrequest for the information, whether an order to provide the information wasissued undersection 113 (a) of the Act, 42 U.S.C. 1857c-8(a), whether an action was brought under section 113(b) oftheAct,42U.S.C. 1857c8(b), orkwhether the Information was provided directly toEPAor throughsome third person.

(3) Information will be considered to have been provided or obtained under section 208 ofthe Act if it was provided inresponse to arequest byEPA madefor any ofthepurposesstatedIn section208, 

### RULES AND REGULATIONS

or ifIts submission could have been re- quired-under section 208. regardea of whether section 208 wascited astheauthorityforanyrequestforthe nforma,- tion, whether an action was brought under section 204 of the Act, 42 U..C. 1857f-3, orwhether theInformation was provideddirectly toEPAorthroughzome third person. (4) Information will be considered to have been provided or obtained under section 307(a) of the Act If It was pro- vided in response to a subpoena Issued under section 307(a), orifitsproducUon could have been required by subpena jinder section 307(a), regardless of wfether section 307(a) was citedas the authority for any request forthe 1nformaton, whether a subpoena was issued byEPA, whetheracourt issued anorder under section3074a), orwhether the Information was provided directly to EPA
orthroughsomethirdperson.

(5) This section specifically does not -applytoInformation obtainedunderaection115(,Q) or211(b) oftheAct,42US.C. 1857d(j), 1857f-6c(b).

(c) Basic mules wohich apply without change. Section 2.201 through §2.205, § 2.207, 12.209, and §2.11 through §2.213 apply without change to Information to which this section applies. (d) Specia Procedure for adrance confldentiaZity determfnations. Section 2.206 applieswithout change toInformation towhich this section applies; however,no Information to which this section applies is voluntarily submitted information. (e) Substantivecriteria foruseinconfldentialitJ determinations. Section 2.208 epplles -to information to which this section applies, except thatinformation which Is emission data or a standard or limitation Is not eligible for confidentialtreatment. Noinformation towhich this section applies Is voluntarily submIttedInformation. (M AvailabRty of information not entitledto confidentialtreatment.Section2210 does not apply toinformation to which this section applies. Emlision data, standards or limitations, and any other Information provided under section 114or208oftheActwhichIs determinedunder this subpart not to be entitled to confidential treatment, shall be available to the public notwithstanding any other provision of this part. Emission da" and standards or limitations -provided in response to a subpoena issuedundersection307(a) oftheActshall be available to the public notwithstanding any other provision ofthis part. Information (otherthan emissiondata and standards orlimitations) provided inresponse to a subpoena Issued under section 307(a) of the Act, which Is determined under this subpart not to be entitled to confidential treatment,shall be available tothepublic,unless EPAdetermines that the information is exempt from mandatory disclosure under 5 U.S.C. 552(b) for reasons other than
reasons of business confidentiality and cannot or should not be made available tothepublic. 

### 36913 (g)Disclosureofinformationrelerant toaproceeding.

(1) Under sections 114, 208 and 307 of the Act, any Information to which this section applies may be released by EPAbecause of therelevance ofthe Information toaproceeding, notwithstanding the factthat theInformation otherwise might be entitled to confidential treatment under thissubpart. Release of Information because of its relevance to aproceeding shall be made only in ac- cordance withithisparagraph (g). (2) In connection with any ProceedIng in which EPA contemplates taking action by means other than a decision madeonthe record after an opportunity for a hearing, information to which this section applies may be made available to the-public under this paragraph (g) (2). No information may be disclosed under this paragraph (g) (2) unless it has first been determined to be eligible for confidential treatment under §2.204 and §2205. No Information shall be made available to the public under this paragraph (g) (2) untilanyaffectedbusi-

ness has beeninformed thatEPAis con- sIdering making the information available to the public under this paragraph (g) (2) in connection with an identified rulemakingproceeding, andhas afforded the business a reasonable period for comment (such notice and opportunity to comment maybe afforded in connec-

-. tionwith thenoticeprescribed by §2.204 (d) (1) and §2.204(e)). Informatlonmay be made available to the public under thisparagraph (g) (2) only if,aftercon- rideration of anytimely comments submitted by the business, the General Counsel determines thattheinformation Isrelevant tothesubject oftheproceed- ing and the EPA office conducting the proceeding determines that the public Interest would be served by making the informationavailabletothepublic.

(3) In connectionwith anyproceeding In which It appears that a decisionwill be made on the record after an oppor- 

### tunity for a hearing, information to -Whichthis section applies may be made available to thepublic, ortoone ormore parties of record to the proceeding, under this paragraph (g) (3). An EPA office proposingdisclosure ofinformation under this paragraph (g)(3), shall so notify the presiding officer in writing. Upon receipt of.such a notification, the presiding officer shall notify each affected businecs that disclosureunderthis paragraph (g) (3) hasbeenproposed, and shall ufford each such business a period for comment found by the presiding officer to be reasonable under the circumstances. Information may be disclosed under thispiragraph (g)(3) only if, afterconsideration ofanytimely eom- ments submitted by the business, the EPAoffice determinesInwritingthat,for
reasons directly associated withthecon- duct oftheproceeding,thecontemplated disclosure would serve the Public interest, and thepresiding officer determines in writing that the Information Is relevant to a matter in controversy in the proceeding. The presiding officer may condition disclosure of the information

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### 9 RULES AND REGULATIONS

to a party of record on the making of such protective arrangements and com- mitments as he finds to be warranted. Disclosure to one or more parties ofrec- ord, under protective arrangements or commitments, shall not, of itself, affect the eligibility of information for con- fidential treatment under the other provisions ofthis subpart. (4) In connection withany proceeding in which it appears that a decision will be made on the record after an oppor- tunity for a hearing, information to which this section applies may be made available to one or more parties ofrec- ord to the proceeding, under this para- graph (g) (4). A party of record seeking disclosure ofinformation shall directhis rmquest to the presiding officer. Uponre- ceipt of such a request, the presiding officer shall notify each affected business that disclosure under this paragraph (g) (4) has been requested, and shall afford each such business a period forcomment found by the presiding officer to be rea- sonable under the circumstances. Infermation may be disclosed to a party of record under this paragraph (g) (4) only If, after consideration of any timely comments submitted by the business,the presiding officer determines in writing that (1)the party ofrecord has satisfactorily shown that with respect to a sig- nificant matter which is in controversy in the proceeding, the partyA ability to participate effectively In the proceeding will be significantly impaired unless the information is disclosed tohim, and (ii) any harm to an affected business that wouldresult from the disclosure is likely to be outweghed by the benefit to the proceeding andtothepublic interestthat would result from the disclosure. The presiding officer may condition disclo-

sureofthe information to aparty ofrec- ord on the making of such protective ar- rangements andcommitments ashefinds to be warranted. Disclosure f6 one or more parties ofrecord, under protective arrangements or commitments, shallnot, of itself, affect the eligibility of Information to confidential treatment under the otherprovisions ofthissubpart. (h) Disclosure to autlorized repre- sentatives. (1) Under sections 114, 208 and 30'(a) oftheAct,EPA possesses au- thority to disclose to any authorized representative ofthe United States any information to which this section applies, notwithstanding the fact that the lnfoKmarton might otherwise be entitled 'to confidential treatment under this, subpart. Such authority may be exercised only in accordance with paragraph (h) (2) or (h)((3) ofthis section.

(2) (1) A personunder-contract toEPA to perform work for EPA in connection with the Actorregulations which imple- ment the Act may be considered an au- thorized representative of the United States for purposes of this paragraph (h). Subject to the limitations in this paragraph (h) (2), information to which this section applies may be disclosed to such a person if theEPA program office managing the contract first determines in writing that such disclosure is neces-
• sary In order that the contractor may carry out the work required by the con- tract;-

(i) No information shall be disclosed under this paragraph (h)(2) unless the contract in question provides that the contractor and the contractor's em- ployees shallusetheinformation onlyfor the purpose of carrying outthe work re- quired by the contract, shall refrain from disclosing the information to any-
one other than EPA without the prior written approval of each affected busi-

ness or of-anEPA legal office, and shall return toEPA all copies ofthe Information (andanyabstracts or extractstherefrom) uponrequest by the EPA program office or whenever the information isno longer required bythe contractor forthe performance of thework required bythe contract, nor unlessthe contract further provides that the contractor shall obtain

awritten agreement tohonor suchterms ofthecontract from each ofthe contractor's employees who will have access to the information, before such employee isallowed such access, nor unless the con- tract further provides that the contractor acknowledges and agrees that the contract provisions-concerning 'the use and disclosure of business information

areincluded forthe benefit of, and shall' be enforceable by, bothEPA and any affected business having an interest in information concerning it supplied to the business byEPA under the contract. (iii) Except to the extent that the EPA program office determines In writIngthat conduct ofEPA activities would be seriously hampered by notifying affected businesses of disclosures proposed tobemade underthis paragraph (hi) (2),

no Information shall be disclosed under thisparagraph (h) (2) untileachaffected, businesshas been furnished notice ofthe contemplated disclosureby theEPAprogram office, and has been afforded a pe- riod found reasonable bythat office (not less than 5 working days) to submit its comments. Such notice shall include a description ofthe information to be disclosed,the identity ofthecontractor, the contract number, and the purposesto be served-by the disclosurb.

(iv) TheEPA program office shall prepare a record of each disclosure under thisparagraph (h) (2), showing the con- tractor, theontract number, the information disclosed, the date(s) of disclosure, and eachaffected business. TheEPA program office shall maintain the record ofdisclosure, thedetermination ofneces- sityprepared underparagraph (h) (2) (1) of this section, and any determination nottonotify-affected businesses prepared under paragraph (h) (2) (ill) ofthis sec- tion, for a period of not less than 36 months after the date of disclosure. (3) A state or local governmental agency which has duties orresponsibili- ties under the Act, or under regulations which implement the Act, may be con- sidered an authorized representative of the United States for purposes of this paragraph (h). Information towhichthis section applies maybe furnished tosuch
an agency at the agency's written re- quest, but only If-

(i) The agency has first furnished to the EPA office having custody ofthe information a written opinion from the agency's chief legal officer or councel stating that under applicable state or local law the agency has the authority to compel a business which possesses such information to disclose It to the agency,

or () Each affectedbusiness isInformed ofthosedisclosures under thisparagraph (h) (3) which pertain to It, and the agency has shown to the satisfaction of

anEPA legal office that the agency's use and disclosure of such Information will be'governed by state orlocallawandpro- cedures which willprovide adequate protection to the Interests of affected busi-

nesses. §2.302 Special rules governing certain information obtailnCd under the Fed. eralWaterPollution ControlAct. (a) Definitions. For the purposes of this section: (Ml "Act" means the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. (2) (1) "Effluent data" means, withref-

erence to any source of discharge of any pollutant (as that term is defined in sec- tion 502(6). of the Act, 33 U.S.C. 1302 (6))-

(A) Information necessary to determine the identity, amount, frequency, concentration, temperature, or other characteristics (to the extent related to water quality) of any pollutant which has been discharged by the source (or of any pollutant resulting from any discharge from the source), or any combination ofthe foregoing; (B) Information necessary to determine the identity, amount, frequency, concentration, temperature, or other characteristics (to the extent related to water quality) of the pollutants whieb, under an applicable standard or limitation, the source was authorized to 'dicharge (including, to the extent neces- sary for such purpose, a description of the manner or rate of operation of the source); and I I

(C) A general description ofthe lontion and/or nature of the source to the extent necessary to identify the source and to distinguish It from other sources (including, to the extent necessary for such purposes, a description of the device, Installation, or operation constitutingthe source). (ii) Notwithstanding laragraph (a) (2) (1) of this section, the following information shall be considered to be "effluent data" only to the extentnecessary to allow EPA to-disclose publicly that a source is (orIs not) In compliance with

an applicable standard or limitation, or to allow EPA to demonstrate the feasibility,practicability, or attainability (or lack thereof) of an existing or proposed standard or limitation:

(A) Information concerning research,

or the results of research, on any prod- uct, method, device, or Installation (or any component thereof) which was pro- duced, developed, installed, andused only for research purposes; and (B) Information concerning any product, method, device, or installation (or anycomponent thereof) designedand inFEDERAL REGISTER, VOL. 41, NO. 171-WEDNESDAY, SEPTEMBER 1, 1976 

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### RULES AND REGULATIONS

tended.to-be marketed orused commer- (e) Substantivecriteria for usein concially but not yet so marketed or used. fidentialitydeterminations. Section 2.208 (3) "Standard or limitation" means appliestoinformation to which thisscc- anuy Prohibition,.any effluent limitation. tion applies, except that information orany-oxic, pre-treatment ornewsource which is effluent data or a rtandard or performance standard established or limitation is not eligible for confidential publicly proposed pursuantto the Act or treatment.No information towhich this pursuant to regulations under the Act, section applies is voluntarily submitted including limitations orprohibitions in a information. permit issued orproposed by EPAorbya (f) Availabilityofinformationnoten- State auder section 402 of the Act 33 titledto confidentialtreatment.Section U.S.C. 1342. 2.210 does not apply to information to (4) "Proceeding" means any rulemak- which this section applies. Effluent data, ing,adjudication, or licensing conducted standards or limitations, and any other by EPA under the Act or underregula- information provided or obtained under tions which implement the Art, except -section 308 of the Act which is deterfor determinations under this part. mined under this subpart not to be en-

(b) Applicability.(1) This section ap- titled to confidential treatment, shall be plies only to business information- available to the public notwithstanding (D Proilded to or 6btained by EPA any other provision ofthispart.Effluent under section 308 of the Act, 33 U.S.C.. data and standards or limitations pro- 1318, by'orfromthe owner oroperator of vided In iesponse to a subpoena issued anypointsource, forthepurpose of car- under section 509(a) ofths Act shall be rying out the objective of the Act (in- available to the public notwithstanding cluding but not limited to developing or any other provision of this part. Inforassisting in the development of any mation (other than effluent data and standard or limitation under theAct, or' standards or limitations) provided Inre- determining vhether any person is in sponse to a subpoena issued under sec- violation of any such standard or limi- tion 509(a) of the Act, which Is detertation) ;or mined under this subpart not to be en-

(ii) Provided to,or obtained by EPA titled to confidential treatment, shall be undirsection509(a) oftheAct 33U.S.C. available to the public, unless EPA de1369(a). termines that the information is exempt

(2) Information will be considered to from mandatory disclosure under 5 have been provided or obtained under U.S.C. 552(b) forreasons other thanrea- section 308 ofthe Act ifit 'wasprovided sons ofbusiness confidentiality and can- inresponse toarequestby EPAmadefor not or should not be made available to any-of the purposes stated in section thepublic. 308, or if its submission could havebeen (g) Disclosureofinformationrelevant required under section 308,regardless of to a Proceeding. whether section 308wascitedas the nu- (1) Under sections 308 and 509(a) of thority for anyrequest forthe informa- the Act, any Information to -whichthis tion,whether an order toprovidethe in- section applies may be released by EPA formation was issued undersection 309 because oftherelevance of theInforma- (a)(3) of the Act, 33 U.S.C. 1319(a) (3), tion to a proceeding, notwlthstanding whethera civil action wasbroughtunder the fact that the information otherwise section309(b) of the Act,33 U..C. 1319 might be entitled to confidential treat- (1), and -whether the information was ment under this subpart. Release of Inprovideddirectly toEPAortbrough some formation to which this section applies thirdperson.

- because of its relevance to a proczeding

(3) Information will be considered to shall be made only in accordance with have been provided or obtained under this Paragraph (g). section 509(a) of the Act if it was pro- (2-4) The provisions of §-2301(g) (2), vided in response to a subpoena issued (g) (3). and (g) (4) are incorporated by under section 509(a). or if itsproduction reference as paragraphs (g) (2), (g) (3), could have been required by subpoena and (g) (4), respectively of this secton. under section 509(a), regardless of (hI Disclosure to authorized reprewhether section 509(a) was cited asthe sentatives. (1) Under sections 308 and authority for anyrequest for the infor- 509(a) of the Act, EPA poseszes aumation, -whethera subpoena was issued thorityto discloseto any authorized repby EPA, whether acourt issued an order resentative of the United State- any under section 307(a), or-whether thein- information to which this section apformation was provided directly to EPA plies, notwithstanding the fact that the

orthrough some third person. Information might otherwise be entitled

(4) This section specifically doas not to confidential treatment under thi rubapply to information obtained under part Such authority may be exercised section 310(d) or 312(g) (3) ofthe Act, only In accordance with paragraph (1b) 33 U.S.C. L320(d), 1322(g) (3).

- (2) or (h) (3) of this section.
(c) Basic rules -whichapply without (2-3) The provisions of §2301 (h) (2) change. Section 2.201 through §§ 2.205, and (h) (3) are Incorporated by reer2.207,2.209 and2.211 through2213 apply ence as paragraphs (h) (2) and (hi) (3),
without change to information to which respectively, of this section.
thissection applies.' § 2.303 Special rules governing certain

-(d)special procedure foradvancecon- informationobtainedundertheNoiso ftdetialt&z, determinations.Section 2.206 ControlActof 1972. applies withoutchangetoinformationto (a) Definitions. For the purpozes of which this section applies; however, -no this section: information towhichthis section applies (1) "Act" means the Noise Contrbl
isvoluntarily submitted information. Act of 1972, 42 U.S.C. 4901 et seq. (2) 'Wanufacturer" has the meaning given it in 42 U.S.C. 4902(6). (3) "Product" has the meaning given It In42U.S.C. 4902(3). (4) "Proceeding" means anyrulemaking, adjudication, orlicensingconducted by EPA under the Act or under regula- tions which Implement the Act, except for determinations under thissubpart. (b) Applicability.This section applies only to information provided to or obtalned by EPA under section 13 of the Act,42U.S.C. 4912, by orfrom anyman- ufacturer of any product to which regulations under section 6 or 8 of the Act (42 U.S.C. 4905, 4907) apply. Information will be deemed to have been pro- vided or obtained under section 13 of the Act if it was provided in response to a requLst by EPA made for the purpose of enabling EPA to determine whether the ipanufacturer has acted or is acting in compliance with the Act, or if Its submission could have been re- quired under section 13 of the Act, re- gardless ofwhether section 13 wascited

as authority for therequest whether an order to provide such information wag issued under section 11(d) of the Act, 42 U.S.C. 4910(d), and whether the information was provided directly toEPA by the manufacturer or through some third perso. (c) Basic rules which applywithout change. Section 2.201 through §2205, §2.207, and 2.209 through §2.213 ap- ply without change to Information to which this section applies. (d) Special Procedurefor advance confidentiality determinations. Section 2.206 applies without change to information to which this section applies; however, no information to which this section applies is voluntarily submitted information. 

### (e)Substantive

### citeiia foruseincanfdetialitydetermination. Section 2.203- applies without change to information to which this section applies; however,

no information to whichthis section applies is voluntarily submitted information.

(f) Reserved. (g) Disclosureofinorrmation relevant to a proceeding.(1) Under section 13 of the Act, any Information to which this section applies may be released by EPA becauze of Its relevance to a matter in controversy in a proceeding, notwithstanding the fact that the information otherwise might be entitled to confidentialtreatment under this subpart.Re.: lease of Information because of its rele-

vance toaproceeding shallbe madeonly in accordance vth this paragraph (g).

(2-4) The provisions of §2.301(g) (2). (g) (3), and (g) (4) are incorporated by reference as paragraphs (g) (2), (g) (3), and (g) (4). rczpectively, ofthis sectimon.



### (hi) Recerved. §2.30- Special rules governing certain information obtained under the Safe DrinkingWaterAcL (a) Deflnitions. For the purposes of

thissection: (1) "Act' means the Safe Drinking Water Act,42 U.S.C. 300f et seq.

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(2) "Contaminant" means any phys- ical, chemical, biological, or radiological substance or matter in water.

(3) 'Proceeding" means anyrulemakIng, adjudication, or licensing process conducted by EPA under the Act or under regulations which implement the Act, except for any determination under thispart. (b) Applicability.(1) This section applies only to Information- (1)Which was provided to or obtained by EPA pursuant to a requirement of a regulation which was issued by EPA un- der the Act for the purpose of--

, (A) Assisting the Administrator in es- tablishing regulations under the Act; (B) Determining whether the person Providing the information has acted or Is acting in compliance with the Act; or (C) -Administering any program offinancial assistance under the Act; and (i) Which wasprovided by a person- (A) Who is a supplier of water, as defined in section 1401(5) of the Act, 42 U.S.C. 300f(5) ; (B) Who is or may be subject to a primary drinking water regulationunder section 1412oftheAct, 42U.S.C. 300g-I;

(C) Who is or may be subject to an applicable underground injection con- trol program, as defined In section 1422 (d) of the Act, 42 U.S.C. 300h-1(d);

(D) Who is or may be subject to the permit requirements of section 1424(b) 

### of the Act,42 U.S.C. 300h-3(b); (E) Who is or may be subject to an order issuedunder section 1441(c) ofthe Act, 42 U.S.C. 300J(c) ; or (F) Who is a grantee, as defined In section 1445(e) of the Act, 42 T.S.C. 300 J-4(e). (2) This section applies to any information which is described by paragraph (b) (1) of this section if it was provided inresponse to arequestby EPAoritsau- thorized representative (or by a State agency administering anyprogramunder the Act) made for any purpose stated in paragraph (b) (1) of this section, or Ifits submission couldhafebeenrequired under section 1445 of the Act, 42 U.S.C. 300J-4, regardless of whether such sec- tion was cited in anyrequest for the information, or whether the Information

wasprovided directly toEPA or through

some third person.

(a) Basic rules which apply withouf change. Section 2.201 through §2.205, §2.207, §2.209, and §2.211 through §2.213 apply without change toInformation to'which this section applies.

. (d) special procedure foradvancecon- f7entiality determinations. Section 2.206 applies without change toinformation to which this section applies; however, no information to which this sec- tion applies Is voluntarily submitted Information. (e) Substantivecriteria for usein con- fildentialitydetermnations. Section2.208 applies to information towhich this sec- tion applies, except that information which deals with the existence, absence,

or level of contaminants in drinking
water Is not eligible for confidential treatment. No Information towhich this 

### RULES AND REGULATIONS

section applies is voluntarily submitted information. (f) Nondisclosurefor reasons other than business confidentialityor where disclosureisprohibitedby otherstatute. Section 2.210 applies to information to which this section applies, except that information which deals with the existence, absence,orlevel ofcontaminants In drinking-water shall be available to the public notwithstanding any other provision ofthispart. (g) Disclosureofinformationrelevant to aproceeding.(1) Under section 1445 (d) oftheAct, anyinformation towhich this section applies may be released by EPA because ofthe relevance ofthe information toaproceeding,notwithstanding thefactthat the information Otherwise might be entitled to confidential treatment underthis subpart.Release of information to whichthis sectionapplies because of its relevance to a proceedng shall be made only In accordance with this paragraph (g), (.2-4) The provisions of §2.301(g) (2), (g) (3), (g) (4) areIncorporatedbyreference as paragraphs (g)(2), (g) (3), and (g) (4), respectively, ofthis section.

(h) Disclosure to authorized repre- sentatives. (1) Under section 1445(d) of the Act,EPA possesses authorityto disclose toany authorized representative of the United States any Information to which thissection applies,notwithstanding -thefact that the Information otherwise migit,be entitled to' confidential treatment under this subpart. Such authority may be exercised only inaccordance withparagraph (h)(2) or (h)(3)of this section. (2-3) The provisions of §2.301 (h)(2) and (h)(3)areincorporated byreference

as paragraphs (h)(2) and (h)(3), respectively, ofthis section. 

### §2,305 [Reserved] 

### §2.306 [Reserved] 

### §2.307 Special rules goverting ecrtaln information obtained underthe Federal Insecticide, Fungicide and Ro denticide Act. 

### (a) Deftnitions. For the purposes of this section: (1) "Act" means the Federal Insecticide,Fungicide and Rodenticide Act, as amended, 7 U.S.C."136 et seq., and Its predecessor,7U.S.C.135 et seq. (2)"Applicant" means any person who hassubmittedto EPA (ortoapredecessor agency with responsibility for administering the Act) a registration statement-or application forregistration -underthe Act of a pesticide or of an establishment. (3)"Registrant" means any person who has obtained registration under the Act of apesticideor ofanestablishment, (b) Applicability.This section applies to all information submitted to EPA by

an applicant or registrant for thepurpose of satisfying some requirement or condition of the Act or of regulations which implement the Act, Including information originally submitted to EPA for some otherpurposebut incorporated by-the applicantorregistrantInto asubmission in order to satisfy some requiremiient or condition of the Act or ofregulations which implement the Act. This section does not apply to Information supplied to EPA by a petitioner In support-of a petition for a tolerance 'nder 121 U.S.C. 346a(d), unless the Information Is also desrlbed by the first sen- tence ofthis paragraph. (c) Basic rules which apply without change. Section 2.201 through D 2,203, §2.207, and §2.210 through §2.213 ap- ply without change to Information to which this section applies. (d) Initialactionby EPA oilce. Section 2.204 applies to Information to which this section applies, except that the provisions of paragraph (o) of this section regarding the time allowed for seekingjudicial review shall be reflected In any notice furnished to a busineas under §2.204(d) (2). (e) Final confidentiality determinationby EPA legaloffice. Section 2.205 ap- plies to information to which this sce- tionapplies, except that- (1) Notwithstanding §2.205(i), the General Counsel (orhis designee), rather than the Regional Counsel, shall make the determinations and take the actions required by §2.205; (2) In addition to the statement pro- scribed bythe second sentence of §2.205 (f)(2), thenotice of denial ofa buslnev! confidentiality claim shall state that un- der section 10(c) of the Act, 7 U.S.C. 136h(c), the business may commence an action in an appropriate Federal district court for a declaratory judgment; (3) The following sentence is substituted for the third sentence of §2.205(f) (2): "With respect to EPA's Implemen- tation of the determination, the notice shall state that (subject to §2.210) EPA will make the Information available to the public on the thirty-first (31st) calendar day after the date of the business's receipt of the written notice (or

on such later date as is established In lieu thereof under paragraph (f) (3) of this section), unless the EPA legal office has first been notified of the business's

- commencement of an action In a Federal court to obtain judicial review of the determination or to obtain a declaratory Judgment under section 10(c) of the Act and to obtain prelimlnafxy InJunctive relief against disclosure."; and (4) Notwithstanding §2.205(g), the 31calendar dayperiodprescribedby §2.- 205(f) (M), as modified by paragraph (0) (3) of this section, shall not be shortened withoutthe consent ofthebusiness. (f) Special procedure foradvancecon. 

### fidentialitydeterminations.Section 2.200 applies without change to Information to which this section applies; however,
no Information to which this section ap- plies is voluntarily submitted Information. (g) Substantivecriteria 

### foruse incon- fidentialitydeterminations. Section 2,208 applieswithout change toinformation to which this section applies; however, no Information to which this section apPlie3 is voluntarily submitted Information,

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(h) Disclosure in

-special circumstances. (1)Section 2.209 applies without change to information to which this section applies. In addition, under sec- tion 12(a) (2) (D) of the Act, 7 U.S.C. 136j(a) (2) (D), EPA possesses authority to disclose any information towhich this section applies to physicians, pharmacists, andother qualifiedpersons needing such information for the performance oftheir duties, notwithstanding the fact that the information might otherwise be entitled to confidential treatment under this subpart. Such authority under sec- tion 12(a) (2) (D)of the Act may be ex- ercised only in accordance with paragraph (h) (2) or (h) (3) ofthissection. (2) Information to which this section applies maybe disclosed (notwithstanding the fact that it might otherwise be entitled to confidential treatment under this subpart) tophysicians, pharmacists, hospitals,veterinarians, lawenforcement personnel, orgovernmental agencies with responsibilities for protection of public health, and to employees-,of any such persons or agencies, or to other qualified persons, whenand totheextent thatdisclosure is necessary in order to treat ill-

ness or injury or to prevent imminent harm to persons, property, or the en- vironment,in the opinion oftheAdministratorothis designee. (3) Information to which this section applies may be disclosed (notwithstanding the fact that it otherwise might be entitled to confidential treatment under this subpart) to a person under con- tractto EPAtoperform work forEPA in connection with the Act or regulations which implement the Act, if the EPA program office managing the contract firstdetermines in writingthat such disclosure is .necessary in order that the contractor may carry out the work re- quired by the contract. Any such disclo-

sure to a contractor shall be made only in accordance with the procedure and requirements of §2.301(h) (2) (ii) through (iv). (4) Information to which this section applies, and which relates I6o formulas of products, may be disclosed at any public hearing or in findings of fact issued by theAdministrator, to the extent and in the manner-authorized by the Administrator or his designee. §2.308 Special rules governing certain information obtained under the Fed. eral Food,Drug and Cosmetic Act. (a) Deftnitions.For the purposes of thissection:

,1) "Act" means the Federal Food, Drug and Cosmetic Act, as amended, 21 U.S.C. 301 etseq. (2) 'Petition" means a petition for the issuance of a regulation establishing

a tolerance for a pesticide chemical or exempting the pesticide chemical from thenecessity of a tolerance, pursuant to section 408(d) of the Act, 21 U.S.C. 346a(d).

(3) 'Petitioner" means a person who has submitted a petition toEPA (orto a predecessor agency). (b) Applicability. (1) This sectionapplies only to business Information submitted to EPA (or to an advisory cornmittee established under the Act) by

a pjtitioner, solely in support of a petitionwhich has notbeen acted onby the publication:by EPA of a regulation es- tablishing a tolerance for a pesticide chemical or exempting the pesticide chemical from the necessity of a tolerance, as provided in section 408(d) (2

or (3) of the Act, 21 U.S.C. 346a(d) (2)

or (3).

(2) Section 2.307, ratherthan thissec- tion, applies to information described by the first sentence of §2.307(b) (material incorporated into submissions in or- der to satisfy the requirements of the Federal Insecticide, Fungicide and RodenticideAct, as amended), eventhough such information was originally submitted by a petitioner in support of a petition. (3) This section doesnot apply to information gatheredby EPAunder aproceeding initiated by EPA to establish

a tolerance under section 408(e) of the Act,21 U.S.C. 346a(e). c) Basic rules which.apply without change. Section 2.201, §2.202, §2.207, and §§ 2.210-2.213 apply without change to information to which this section applies.

(d) Effect Of submission of information without claim. Sections 2.203 (a) and (b) apply without change to Informationtowhichthis section applies. Section 2.203(c), however, does not apply to informationtowhichthis section applies. A petitioner's failure to assert a claim Iwheninitially submittingapetition shall not constitute awaiver of any claim the petitionermayhave. (e) Initialactionby EPA office. Section 2.204 applies to Information to which this section applies, except that- (1) Unless the EPA office has on file

a written waiver of a petitioner's claim,

a petitioner shall be regarded as an affected business, a petition shall be treated as if it were covered by a busi-

ness confidentiality claim, and an EPA office acting under §2.204(d) shall determine thattheinformationin thepetitionis or maybe entitled to confidential treatment and shall take action in ac- cordancewith §2.204(d) (1) ; (2) In addition to other required pro- visions of anynotice furnishedto a petitionerunder §2.204(e), suchnotice shall state that-

- (i) Section408(f) oftheAct,21 U.S.C. 346a(f), affords absolute confidentiality to information to which this section applies, but after publication by EPA of a regulation establishing a tolerance (or exempting the pesticide chemical from the necessity ofa tolerance) neither the Act nor this section affords any protectiontotheinformation; (ii) Information submitted in support of a petition which Is also incorporated into a submission In order to satisfy a requirement or condition ofthe Federal Insecticide, Fungicide and Rodenticide Act, as amended, 7 U.S.C. 136 et seq., Is regarded byEPA asbeing governed, with respect to business confidentiality, by §2.307 rather than by this section;

(iii) AlthoughIt appears that thissec- tion may apply to the Information at 'this time, EPA is presently engaged in determining whether for any reason the information is entitled to confidential treatment or will be entitled to such treatment if and when this section -no longer applies tothe information; and (iv) Information determined by EPA tobe covered by this section will notbe disclosed for as long as this section con- tinues to apply, but will be made available to the public thereafter (subject to §2.210) unless the business furnishes timely comments in response to the notice. (f Final confidentiality determinalion by EPA legal o11ce. Section 2.205 applies to Informationto which this sec- tionapplies, except that- (1) Notwithstanding §2205(t), the General Counsel or his designee, rather than the Regional Counsel, shall in all

cases make the determinations and take theactionsrequired by §2.205; (2) In addition to the circumstances mentioned In §2.205(f) (1), notice in the form prescribed by §2.205(f) (2) shallbe furnishedtoeach affectedbusiness when-

ever information is found to be entitled to confidential treatment under section 408(f) of the Act but not otherwise en- titled to confldential treatment.Withre- spect to such cases, the following sen- tences shall be substituted for the third sentence of §2.205(f) (2) : "With respect to EPA's Implementation of the determination,thenoticeshall statethat (subJect to §-2.210) EPA will makethe information available to the public on the thirty-first (31st) calendar day after the business's receipt of the written notice (or on such later date as is established in lieu thereof under paragraph (f) (3) of this section), unless the EPA legal office has first been notified of the business's commencement of an action in a Federal court to obtain judicial review ofthe determination and to obtain preliminary injunctive relief against disclosure; provided, that the Information will not be made available to the public for solong as It is entitledto confidential treatment under section 408(f) of the Federal Food Drug and CosmeticAct, 21 U.S.C. 346a(f).11; and

(3) Notwithstanding §2.205(g), the 31 calendar day periodprescribed by §2.205 (f) (2), as modified byparagraph Mf) (2) of this section, shall not be shortened without the consent ofthe business. (g) Specialprocedure foradvancecon- fidentialitydeterminations. Section 2.206 applies withoutchange to information to which this section applies; however, no information to whichthis section applies isvoluntarily submitted information.

(h) Substantivecriteria foruseincon- fidentialitydeterminations.Section 2.208 does not apply to information to which this section applies. Such information shallbe determined tobeentitled tocon- fldential treatment for so long as this sectioncontinues toapplytoit.

(I) Disclosure in specialcircumstances. (1) Section 2209 applies to information towhich thissection applies.In addition, underSection 408(f) oftheAct,21 U.S.C. 346a(f), EPA is authorized to disclose the information to other persons. Such authority under section 408(f) of the Actmay be exercised only in accordance

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with paragraph (i) (2) or (i) (3) of t section.

(2) Information to which this sect] applies may be disclosed (notwithstar Ing the fact that it Otherwise might entitled to confidential treatment urn this subpart) to a peison under contri to EPA to perform work for EPA in cc nection with the Act, with the Fede Insecticide, Fungicide, and Rodentic Act, as amended, or regulations wh', Implement either such Act, if the E' program office managing the contri first determines in writing that such d closure Is necessary in order that I
contractor may -carry out the work quired by the contract. Any such d closure to a contractor shall be mg only In accordance with the procedu: and requirements of §2.301(h) (2) through (iv). (3) Inforpation to which this sectt applies may be disclosed by EPA to advisory committee In accordance w. section 408(d) of the Act, 21 U.S 346a(d). § 2.309 Special rules governing cert. information obtained under the 3 rine Protection, Research and Sai tuarics Act of1972. (a) Definitions. For the purposes this section:

(1) "Act" means the Marine Prot( tion,-Research and Sanctuaries Act 1972, 33 U.S.C. 1401 et seq.

(2) "Permit" means any permit a plied for or granted under the Act. (3) "Application" means an applic tIonfor a permit. (b) Applicability.This section appl to all Information provided to or C tained by EPA as a part of any applic tion or in connection with any permit. (c) Basic rules which apply withc change. Section 2.201 through §2.2 and §2.209 through §2.213 apply wit out change to information to which tI section applies.

(d) Substantivecriteria for use in co 11dentialitydeterminations. Section 2.2 does not apply to information to whii this section applies. Pursuant to secti 104(f) of the Act, 33 U.S.C. 1414(f),: information to which this section applJ

s eligible for confidential treatment.

PART 30-GENERAL GRANT REGULATIONS AND PROCEDURES
2. .By revising §30.235(b) to read follows: § 30.235 Disclosure of information.

(b) Any person who submits to EM any information under this Part, w who desires that EPA not disclose a or all of ,the Information, may place (or attach to) the Information, at t] time it is submitted to EPA, a coy sheet, stamped or typed legend, or oth suitable form of -notice employing lai guage such as "trade secret," "propri, tary," or "business confidential." Alle edly confidential portions of otherwi non-confidential documents should clearly identified by the business, a3 maybe submitted separately to facilita Identification andhandling by EPA. Al plicants should also comply with further instructions in application forms concerning the assertion of confidentiality claims. See §§ 2.203 and 2.204 of this chapter.

3. By revising § 30.320(b) to read as follows:
§ 30.320 Use and disclosure of information.

(b) An assertion of entitlement to con- fidential treatment of part or all of the information in, an application may be made using the procedure described in § 30.235(b). See also §§2.203 and 2.204 of this chapter.

PART 40-RESEARCH AND
DEMONSTRATION GRANTS

- 4. By revising §40.155 (a) and (b) to read as follows: § 40.155 Availability ofinformation.

(a) The availability to the public of information provided to,or otherwise obtained, by, the Administrator under this Part shall be governed by Part-2 of this chapter.

(b) An assertion ofentitlement to con- fidential treatment of part or all of the information in an application may be made usin the procedure described in §30.235(b). See also §§ 2.203 and 2.204 of this chapter.

les
lb- PART 60-STANDARDS OF PERFORM-
a- ANCE FOR NEW STATIONARY SOURCES

, at 5. By revising §60.9 to readas follows:

.07 § 60.9 Availability of information. h- his The availability to the public of information provided to, or otherwise obn t ained by, the Administrator under this 08 Part shall be governed by Part 2 of this 3h chapter. (Information submitted volun-

on tarily to the Administrator for the purno poses of §§ 60.5 and 60.6 is governed by

les §2.201 through §2.213 of this chapter and not by §2.301 of this chapter.)

PART 61-NATIONAL EMISSION STANDARDS FORHAZARDOUS AIR POLLUTANTS

as 6. By revising § 61.15 to read as follows: § 61.15 Availability of information.

The availability to the public' of in-
)A formation provided to, or otherwise obad tained by, the Administrator under this

ay part shall be governed by Part 2 of thison chapter. tie

er PART 79-REGISTRATION OF FUEL

er ADDITIVES

n- 7. By revising § 79.3 toread as follows:'

g-. § 79.3 Availability ofinformation.

se The availability to the public of Inbe formation provided to, or otherwise obnd tained by, the Administrator under this te part shall be governed by Part 2 of this p- chapter. PART 125-NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
8. By revising § 125.37 to read as follows: § 125.37 Public access to informatuion.

Certificationsissuedpursuant to section 401 of theAct, the comments of all governmental agencies on a permit application, and draft permits prepared pursuant to § 125.37 shall be available to the, public without restriction. The availability to the public of other information submitted by an applicant to the Administrator in connection with a permit application or which may be furnished by

a permittee in connection with required periodic reports shallbe governed byPart 2 ofthis chapter.

PART 167-REGISTRATION OF PESTICIDEPRODUCING ESTABLISHMENTS, SUBMISSION OF PESTICIDES REPORTS, AND LABELING
9. By revising § 167.5(d) to read as follows: § 167.5 Pesticides reports.

* S S * * (d) The availability to the public ofinformation provided to, or otherwise obtained by, the Administrator under this Part shall be governed by Part 2 of this chapter.

PART 169--BOOKS AND RECORDS OF PESTICIDE PRODUCTION AND PISTRIUIIUN
10. By revising § 169.3(c) to read as follows: § 169.3 Inspection.

(c) Availability of information. The availability to the public of Information provided to, orotherwise obtained by, the Administrator under this Part shall be governed by Part 2 of this chapter,

PART 180-TOLERANCES AND EXEMP.

TIONS FROM TOLERANCES FOR PESTICIDES CHEMICALS IN ORON RAW AGRICULTURAL COMMODITIES
11. By revising paragraph () of § 180.7. toread as follows: § 180.7 Petitions proposing tolerancces

or exemptions for pesticide residues' in or on raw agricultural conintodities.

* * S S S (c) Except as noted In paragraph (d) of this section, a petition shall not be ac- cepted for flling if any of the data proscribed by section 408(d) are lacking or
are not set forth so as to be readily understood. The availability to the public ofInformation provided to, or otherwise obtained by, the Agency under this Part shall be governed by Part 2 of this chapter.

Ai'r riLx A-SiurnmcArr Coizurs, InESPOnsES, "D OMXX NOTEWORTHYr ITM

The significant comments (in summarized form) received In connection with the no- tices ofproposed rule making dated May 20

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and July 9, 1975, 40 FR 21987 and 28814. on the subject of confidential business Information, and the responses of the Administrator to those comments, are as follows:-

1. Comment-The proposed rule does not adequately encourage EPA offices to use techniques that would allow some parts of allegedlyconfidential information to bemade public- (e.g., masking the business's identity

or disclosing the data in aggregated form).

Response-Section 2.202(b) hasbeen modified to emphasize the possibility of use of such techniques.

_

2. Comment-The proposed rulewould preclude EPA from discretionary disclosures of information EPA has found to be entitled

to confidential treatment. This is contrary
to the public interest and will decrease EPA's flexibility.

Response-The Administrator disagrees with this coifiment. A provision that EPA could disclose information by exercise ofdiscretion, even if the informa$1on had been found to be entitled to confidential treatment,would conflict withthe basic approach of the regulation, which is that businesses

are entitled to know the extent of the protection EPAwill afford the information submitted by them.

3. Comment-The definition of "voluntarIly submitted information" in §2.201(1) of the proposed rule is unclear with respect to information submitted in connection with
contracts andgrants.

Response-The Administrator agrees ,yith this comment. Section 2201(i) of therule as promulgated below now points out that Information which an EPA contractor or grantee has contractually agreed to furnish is not voluintarily submitted informatlon. Section 2.201(1) also now states that other Information -which EPA may require as a condition of considering contract bids, contract or grant proposals, or the like. as well as information furnished to EPAin connection with the administration of a contract or grant, may qualify as voluntarily submitted information.

4. Comment--Section 2202(d) of the proposed rule would require disclosure of an item of information, if one statute required disclosure but another statute required confidential treatment of the same information. The regulation should require confidential
treatment of an item of information whenever that result is required by any statutory provision.

Response-The Administrator disagrees with this comment. The first inquiry, in a situation where two itatutes appear to require different results concerning-the treatment of the same information, should be an examination to determine whether in fact there is-a conflict. If there is a true conflict, however, the Administrator believes that the public policy in favor of disclosure ofinformation shouldprevail.

5. Comment-The regulation should re- quire that requests or demands by EPA for information should specifically alert a business to the possibility of asserting a business confidentiality claim and should warn the business that the failure- to assert a claim may result in the information being made available tothe public.

-Response-The Administrator agrees with this comment. Section 2.203 of the rule as .romulgated below now requires such a warning whenever EPA requests or demands information which is likely to beregarded as confidential.

6. Comment.-There should be no requirement thata business assert its business confidentiality claim at the time of initial submission of the information. This will tend
to increase administrative difficulties and will lead businesses either to submit less information or to submit It less willingly by focusing attention on the subject of confidentiality.

ResponsL-The Administrator disagrees withihiscomment.EPAexperience has shown that when a business submits Information which the busine-s regards aq confidential but fails to place an appropriate marklng

on the information, administrative difloul-, ties in dealing with theinformation arelikely

to result.Although the busines may assume that EPA employees may afford the information confidential treatment, the EPA office which receives the information may not appreclate the need for confidentiality and may allow it to be publicly disclosed. Even if the EPA office which originally obtains the information Is aware of the business's tacit confidentiality claim, other EPA offices which obtain access to the Information may be unaware of the claim. A requirement that businesses assert their confidentiality claims at the time of submission of the information will greatly lessen the riskof Inadvertent dIsclosure of Information entitled to confidential treatment.

7. Comment-A business which fails to mark as confidential an item of Information which It submits to EPA in the future should
not be penalized by such failure. It should be able to assert Its claim without penalty
at any time unless the Information has already been disclosed.

Response--Sectlon 2.203 has been revlscd
to provide that a business's failure to assert b6

claim when submitting information to EPA will not prejudice the buslnezs unlc:s the EPA request or demand for the Information notified the business of the consequences of failure to assert a claim. See also the Response to Comment 8.

8. Comment-A business may nadvertently or negligently fail to aserta claim atthe time It submits information to EPA, even though it knew of the requirement and
meant to assert a claim. Corrections of such

errors should be allowed.

Response--Sectlon 2.203 has been modified
to provide that a business's failure to assert

a claim when submitting information is not necessarily a waiver of the claim. The revised §2.203 provides, however, that if. when soliciting the information. EPA afforded the business a fair opportunity to asrt a claim. and if the Information submitted in response

was not accompanied by a claim. EPA will
not make further inquiries to the business under § 2.204(c) (1). EPA will make administratively practicable efforts to associate later claims with the information In-question, but
cannot assure the success of such efforts. See also the Response to Comment G.

- 9. Comment-The regulation should require a business to submit its justification for its claim of confidential treattnent, not just the claim, when submitting informfition. This would permit speedier decisions if and when a request for release of the Information is received by EPA.

Response-The Administrator diaMgrees with this comment, A provision has been added to §2.204(a) which would encourage EPAofficestoinitiate thedetermination process as soon as it appears likely that requests for the information eventually will be received by EPA. even though they havenot yet been received. This should produce speedier decisions. But to require detailed substantlation of a claim in every case at the time of submission of the information itself would inevitably slow the responses of busine=e to requests for information, would in many

cases cause businesses to expend needless effort, and would complicatq EPA recordkeeping unjustifiably.

'10, Comment-DIfferent formats for business confidentiality claims, each fairly elaborate, should be prescribed for information which is: (A) voluntarily submitted. (B) re

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quired to be submitted, or (C) submitted In connection with grants or contracts.

Response-The Adminitor disagrees with this comment. This would be an unnecew-sary elaboration that would not effectively as;st a businezs but would cause admInitrative difficultles forEPA.

11. Comment-In contrast to what I- contemplated by §2.204(a) of the proposed rule, EPA should never initiate the confidentlallty determination with respect to an Item of business Information untfl and unIess thatItem ofInformation i the subject of

a request for release under 5 U.S.C. 552.

Rcsponsre-ThL comment Ignores the posslbillty that EPA may.have reason to desire
to disclose bucines Information in connection with rtandard-cetting or other EPA activitles. A procedure is. needed to allow EPA,

on Its own initiative, to determine whether

or not It may discloce business information. Moreover, the comment's advice, if followed, would not allow EPA to Initiate the confilentiality determination process with regardto information which Is certain orlikely
to be the subject of later requests under 5 U.S.C. 552, thus forcing buslnesses to submit
comments under rigid deadlines when a request Is actually received and slowing the handling of responces to requests under 5 US.C. 552.

12. Comment-Once EPA has determined that information is entitled to confidential.
treatment for reasons of business confidentiality, there should be no automatic reexamination or that determination merely beccause of the p"'age of time. Such a reexamination, with its attendant burden of rejustification of the claim by the business, should be commenced only when there Is good reason to believe that the claim I- no longer valid.

RIeponse-The Administrator agrees with this comment and the criticized language in 92.204(b) of the propozed rule has been deleted. As modified, the regulation provide- that If an EPA office has reason to doubt the continuing validity of such a determination it will refer the matter to the EPA legal office forpossible action under 12.205(h).

13. Comment-Even if a prior determination states that information of a certain type is not entitled to confidential treatment, a busIne--s should be afforded the opportunity
to reek judicial review of the validity and applicability of that determination.

Respone-The Administrator agrees with this comment. Section 2204 has been modified In various respects to provide that notice under § 2.205(f) will be given in every

case where EPA proposes to disclose information which is known to be covered by a businem confidentiality claim, unless such notice haspreviously been givento thebusinezs with regard to the same information.

14. Comment-Busine-es sometimes compile or obtain information at the request of one Federal agency, only to have It requested later by another agency. If the
agency at whoso request the information

was first compiled or obtained has determined that the Information Is entitled to confidential treatment,EPA should automatically honor such a determination.

Respone-The Administrator believes that although other agencies"determinations

are proper for consideration by EPA. EPA
cannot commit itself to honor such determinations in every cars. Differences in statutory provislons or disagreement concerning application of the law may require different conclusion, on EPA's part.

15. Comment-Information should not be determined to be available to the public without consultation with a business merely because at some time in the past the Informatlon has been located in EPA files which

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were made available to the public. The placement of such information In such files may have been improper; moreover, the information may not actually have been disseminated.

Response-The Administrator agrees with this comment. Section 2.204(c) has been appropriately modified. Evidence of public dissemination of such information may bear

on the question of whether the Information is in fact confidential.

16, Commnent-Initial determinations by

an EPA office that an item of business information is not entitled to confidential
treatment should be referred to the EPA legal office, just as are determinations that

an item of information is or may be entitled to confidential treatment.

Response-The Administrator disagre6s with this comment. EPA offices acting tnder § 2.204(d) are to make one of two determlnations: either that the inforhnation clearly Is not entitled to confidential treatment, in which case the busihess receives a notice under §2.205(f), orthat the information may be entitled to confidential treatment, in which cfe further inquiry is made and the

atter Isreferred to an EPA legal office for a final determination. The first kind of determination will be made only where the EPA office can ascertain-that EPA's position on the matter is already clear and that there is nothing furtherto-consider.

17. Comment-The "procedural" denial contemplated by §2.204(d) (1) Is a "sham" that conflicts witi-the mandate of the Freedor of Information Act, 5 US.C. 552 (a) (6). because it is not a good-faith decision on thQ merits. EPA offices should be required to make a substantive, yes-or-no decision on the merits within the 10-working-day period following receipt of a request under 5 U.S.C. 552, All Information necessary for such a determination, Including any comments an affected business might be allowed to make, should be considered atthat stage.

Response-The Administrator disagrees withl this comment. It is recognized that
every effort should be made to provide decisions on the merits as expeditiously as possible. However, EPA now has on hand a great deal of business information, most of which has never been the subject ofa business confidentiality determination; with regard to most ofthis Information, the submitter businesses have never presented to EPA any justification for confidential treatment nor have they been given specific notice of the need to do so. Moreover, EPA does not expect to receivo requests for release ofmuch ofthe business inforniation EPA possesses and will continue to acquire. The Administrator does not believe It will be possible In most cases to issue decisions onthe meritsbefore seeing the business's comments. Attempts to issue initial determinations on the merits without knowing the business's views would produce uninformed initial determinations and complicate the handling of appeals. As stated in the Response to Comment 9 the Administrator does not believe it is appropriate to require new submissions to be accompanied by

a business's justification for its confidential
treatment request. The Administrator finds that in most cases it will not be possible to locate the requested information, nvite-a business's comments, allow a reasonable time for preparation by a business of such comments, receive the comments, and Issue a determination on the merits within the tenworking-day period after receipt of a request allowed by 6 U.S.C. 552(a) (6) for the issuance ofInitial determinations. Accordingly,in many cases it will be necessary to Issue a "procedural" initial denial. As noted elewhere, the regulation has been modified in various ways to make It more likely either that all information needed for a determination will be on hand when a request is received or that the determination wlll already have been made. Moreover, as EPA issues

more confidentiality determinations (especially class determinations under §2.207), the EPA position on entitlement to confidential
treatment of various categories of Information will become better defined, with consequent narrowing of the Issues remaining to be decided.This will tendto increase theproportion of initial determinations on the merits issued under either §2.204(b) (1) or §2204(d) (2) and decrease the proportion which must be "procedural" denials under §2.204(d) (1).

18. Comment-EPA should not require a business to carry the burden of substantiating its assertion that an Item ofInformation is entitled to confidential treatment. An assertion of entitlement should be regarded

as conclusive, or atleast asprima facie, proof ofentitlement.

Response-The Administrator does not believe that such an approach is justifiable under the judicial interpretations of 5 U.S.C. 552. An objective analysis of entitlement of the itemof information to confidential treatment is required.

19. Comment-The period proposed for a business to prepare and submit its comments-15 calendar days from the date of a notice, under proposed J 2.204(e)-is too short, if meaningful comments by the business are desired. Problems with directing the notice-to the proper corporate officials and the occasional absence on leave ortravel of key officials, will cause great difficulty.

Response-The Administrator is conscious of the problems that may be posed In some
cases by the deadline. On the other hand, the deadlines for this Agency's issuance of determinations prescribed by 5 U.S.C. 552 make impossible the allowance of a period such as 60 days (suggested by one comment) for a business to furnish its comments. The Administrator has determined that a period of 15 working days (Government business days) should be allowed. See also the Response to Comments 9 and 17.

20. Comment-There appears tobeno logical reasonwhy businesses should be required
to submit substantiating comments within

a period of limited length, at some inconvenience to them, if no request for the information is pending under 5 U.S.C. 552.

Response-The Administrator agrees with this comment. Section 2.204(e) has been accordingly modified. Additionally, §2.204(e) and §2.205(f) have been modified to indicate that if a request under 5 U.S.C. 552 is pending, neither the comment period nor the post-determination waiting period will normally be extended without the consent of the requester.

21. Comment-In order to allow a business as much time as possible for preparation of comments, telephone notice should be given the business at the time EPA decides to issue the notice contemplated by §2.204(d) to the business.

Response-The -Administrator agrees with this comment, and §2.204(e) has been modified appropriately.

22. Comment-Comments submitted by businesses in substantiation of theirbusiness confidentiality claims may include other business information which Itself may be entitled to confidential treatment. The regulation should provide automatic entitlement
to confidential treatment for comment information, f requested by the businessResponse-The Administrator agrees with this comment, and a new provision, §2.205 (c), has been added which Incorporates the substance of the comment. This automatic entitlement to confidentiality will apply only if EPApossesses the information onlybecause of its inclusion in substantiating comments and is grouhded on the continuing need to obtain frank and full comments from buslnesses in orlcr to promote sound doterminations under this subpart.

23. Comment-The views of an EPA office concerning entitlement of an Item of business information to confidential treatment, which under proposed §2.204(f) are to be furnished to the EPA legal office for Its consideration in issuing final determinatlons, should also be furnished tothe affected business for comment.

Responso--The Administrator disagrees with this comment, Requiring such disclo-

sure would tend to reduce the candor of an EPA office's comments In many cases, There also would exist a substantial risk, in cases involving more than one affected busincss, of inadvertent disclosure to one business of allegedly confidential information submitted by the other. Moreover, in cases where speedy action is required (e.g., where a request under 5 U.S.C. 552 Is pending), it is unlikely that an EPA offlce's comments would be received by the affected business in time
to be used In the preparation of the business's comments. The Administrator notes, however, that §2.204(e) (5) of the rule as promulgated below requires an EPA ofilce to

- seek confirmation ofIts understanding of the

pertinent facts.

24. Comment-The 10-calendar-day waitIng period prescribed by proposed §2,205(f) after a determination adverse to a business, during which the business may commence

an action for judicial review, Is too short a period for the obtaining of suitable counsel and the preparation and filing of suitable pleadings.

Response-The Administrator agrees with this comment and has modified § 2.205(f) tO provide a period of ten working days, rather than ten calendar days, for initiation of judicialreview action.

25. Comment-The proposed waiting period mentioned In Comment 24 above is too long, Five calendar days would be sufficient.

Response-The Administrator disagrees with this comment. EPA records contain business Information concerning businesses ranging in size from very largo corporations
to sole proprietorships. Moreover, because of the number and scope of the various statutes EPA administers, the businesses whose information EPA holds are not concentrated in a few fields but come from many different Industrial and commercial fields, The Administrator finds that businesses may in
many cases require up to ten working days for purposesof retaining legal counsel, familiarizing counsel with the facts, determining whether to seekjudicial review of EPA's determination, and preparing and filing neeessary pleadings. 6 U.S.C. 552 requires that

once EPA has determined that information is not exempt fromdisclosure andwillpe disclosed, it shall make the Information available to the requestor with reasonable promptness. The Administrator believe. that

a waiting period of ten working days Is not inconsistent with that requirement.

20. Conmment-Proposed § 2.205(f) 1 improper to the extent that under it EPA proposes to disclose information when a business is In the process of obtaining judicial review of the adverse EPA determination, The 30-day period established by the proposed rule, at the end of which EPA would disclose Information unless a court had ordered Its continued withholding, improperly interferes wlth the role of the judicial system.

Response-The Administrator substanutially agrees with the comment. The purpose of the proposed provision was to ensure that

a business would expeditiously pursue Its request for judicial review. A business could merely file a complaint and take no further action to 6btain a speedy hearing on a motion for injunctive relief, were there not

some spur to expeditious action. However,

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theAdministrator hasconcluded that a fixed period of time during which the contractor
must obtain a judicial order In order to prevent disclosure is not the best way to solve the problem. Accordingly, the 30-day period has been eliminated from theregulation as promulgated below, but in Its place has been substituted language which would result in disclosure of the Information, In the absence of a court order, prohibiting disclosure, after a business has failed to convince a court of the propriety of a temporary injunction against disclosure, or in cases where, after reasonable notice to the businesr, EPA determines that the business is not taJdng appropriate measures to obtain

a speedy resolution of the matter. The substituted provisions shiould adequately protect the interests of those who have requested the information under 5 U.S.C. 552, while eliminating the objectionable features oftheproposed rule.

27. Cr ment-Proposed J 2205(g) should be modified to provide that the comment period andpost-determination waiting period should be allowed to be shortened only in

cases where disclosure of allegedly confldentill busiuess information would alleviate or assist in alleviating an Imminent hazard.

Response-The Administrator agrees with this comment and has caused 12.205(g) to be appropriately modified.

28. Comment-The authority of the various EPAlegal offices to Issue determinations,

as set forth in §2.205(1) of the proposed rule, is too broad. Regional Counsel should
not be authorized to issue such determinations for similar situations are apt to lead

to differing determinations.

Response-The Regional Counsel should be authorized to issue determinations in those cases where they are most familiar with the records and where action by them would eliminate organizational delays. Dissemination of decisions and consultation with the General Counsel will tend to minlmize divergent results.

29. Comment-The Administrator or some member of his immediate staff, rather than the various EPA legal ofaces, should ssue the determinations contemplated by §2.205, §2206, and §2.207 since 5 U.S.C. 552 speaks of an appeal to the head of the Agency.

Response-The comment acknowledges that the Administrator himself cannot be expected to personally rxle on each confAdentiality claim and foresees delegation to

a staff member. Which btaff member performs this function under a delegation is a matter for determination by the Agency.

30. Comment-The regulation shouldprovide that the appeal determination must be issued by-a person other than the person who issued the initial determination, atleast where requests under 5 U.S.C. 552 are concerned. r

Response-The Administrator agrees that the same person should not issue-both determinations but believes that this separation of functions should be provided for by the General Counsel, acting under §2.205(1) of the regulation.

31. Comment--Section 2.206 of the proposed rule should be extended to allow advance confidentiality determinations even where the information concededly would not, if submitted for 'general use by EPA. constitute voluntarily submitted information.

Response-The Administrator disagee3 with this comment. The purpose of an dvaiee confidentiality determination is to allowEPA to obtain for its use information it could not otherwise obtain. Advance confidentiality determinations present problems for EPA-(See Comments 33 and 34 below.)

. and thus should be employed when other

procedures for determining confidentiality

are inadequate. = Comment--A mechaum should exist for determining whether or not Information would be voluntarily submitted Inforration If submitted for general use by EPA.

Response-The Administrator agrees with this comment. Section 2208 has been modLfled toallow such determinations.

33. Comment-Business information submitted to an EPA legal ofe for the sote
purpose of obtaining an advance confidentiality determination shouldnot be regarded

as an "agency record" and. Ifthe determination holds that the information is not entitled to confidential treatment, all copies should be returned to the submitter, even if

a request for release of that Information is pending under US.C. 552.

Responso-Tho Administrator disagrees with this comment. Although definitive Judlcial pronouncements on the subject ae la king, the Administrator believes that there is a substantial po=iblIlty that information held by an EPA legal office for purposes of examination in the courze of issuance of

an advance confidentiality determlination under §2200 would be held by a court to constitute agencyrecords under S U.S.O. 552. The Adminstrator believes that the Lue of whether each documents would constitute
agency records should be determined by a court. (EPA would disclose such information only pursuanttoa courtorder.)

34. Conmment-The regulation should pro. vide that EPA should treat an confidential the fact that a businesa has submitted an item of information to EPA under I 102. Response-The Administrator agrees with this comment Insofar as It asserta that an EPA legal office (or other office) should not voluntarily disclose such a fact.However, the Administrator is of the opinion that in some

cases whero a request for disclosure of records concerning such submissions has been made under 5 U.S.C. 552.It might be legally improper to refuse to discloso such a fact. No change to the regulation is deemed necessary with respect to this comment.

35. Comment--Cl= determinations, as contemplated by proposed § 2.207. should allow prior comment by all businesses which might be alfected by such a determointion.

Response-The Administrator believes that in many cases such a requirement would preclude issuance of a class determination, since the Identities of potentially affected businesses might be unas-certainahle. Section
2.207 has beenmodified to clarify the pupose and effect of class determinations. (See esponse to Comment 37 below.)

36. Comment-An EPA office should not be allowed to make oasertedly confldentital business information available to the public In reliance on a class determination without priornotice to the business.

Response--The Administrator agrees with this comment. See the Responso to Comment 13 above and the clarifying modifications which appear as §2.07(d) of the rule as promulgated below.

37. Conment-Various terms in §2.237 as proposed require clariflcation co that bunesses will Iow what congtitute3 a "common fact situatlon." a "cla." etc.

Response-Tho Administrator Mr3 that the proposed §2.207 could have bcn stated

more deflnltely, and the section has been rewritten to make more certain It- purpoee, applicability, and effect.

- 38. Comment--Certain of the sutstantive criteria proposed by §2.203 are either Irrelevant or else impossible to satisfy. Speclilcally. the provision n §2.208(c) of the proposal concerning the "reasonableness" of a business's claim is unduly vague, and the reference to the "practices of other butSnesses"' is Irrelevant.
* Response-The Administrator agrees with

this comment4 Section 2.208 has been re

### 36921

written to reflect this and several other changes suggested by comments. as well asto conform the section to other sections in whlch procedural changes have been made.

39. Comment-Proposed 12.208(e) (1) Improperly interprets judicial opinions concerning the proper criterion of competitive harm Specifically, a business should not have to demonstrate either that the iUkelihood of barn Is "aubtantial or that the harm which would result from disclosure is "substantaL"

ResponsL-The Administrator agrees in part. The decision In 'National Parks & Conservation A0a.n T. Morton." 498 1. 2d M (D.C. Cir. 1974). requires only-a likelihood.
not a substa tal likelihood. that a bustness's competitive position will be substantially harmed by Government disclosure or

an item ofinformation. The section has been nuxlifled accordingly.

40. Comment-Section 2=8 is wrong in concerning Itself with hrm to a busines's competitive position: the test should be whether the businews discloses the informatIon, not whether the Governmentle disclosure would harm the busines's competftire pC45ture

Renponse-The Administrator belevesthat the "Irational Parke' case cited above precludes PA from taking such an approach and thatthe test as now stated in 12308 is theproper one.

41. Comment-The regulation should list speciflo categories of Information which are. and which are not, entitled to confidential treatment

Rnepone-The Administrator does notbelieve that It is nowpossible to Issue comprehensiva listings of the type urged by the

comment. While it is desirable,for businesses and the public to become aware ofthe types of Information which EPA believes to be entitled or unentitled to confidential treatment this can best be accomplished by Issuanco of determinations under f205, 12.20. and 12.207.

42. Comment--Section 2.208 should notrequire a business to "prove a negative- Leit should not have the burden of showing that Information is not readily obtainable by others.

Responc--The Administrator agrees that bUin -ea might find it extremely difcult
to show that another person could not obtain Inforntion. However. it Is clear that the availability to others of Information Js relevant to the determination. The section has been modLfedto eliminatethe burdenon the buiness of making an affirmative showing in this regard. but continues to require EPAconsideration oftheL-_ue.

43. Comment-'ome Information 36buslnE- guards zealously may nonetheless be available via court-ordered discovery in & legal proceeding. Avallability via, discovery chould not ncate a bu.ines s confidentialIty entitlement.

Response-The Administrator agrees in part with this comment. Section 2.208. as promulGated below,explicitly treatsthis subject, and diferentlates between Information which would be routinely discoverable and that which would be discoverable only upon,

a chowingof zpecial need.u

44. Comment-7here ay% be situation- in which although a busines:sb s taken no steps
to preserve the confidentiality of an item of information, the Information has not been, disclos-d outside theuines&.In such situa

, tons, the Information should not be ineliCiblofor confidential treatment.

Response-The Adranstrator dtisagrees with this comment. It no steps have been taken to safegumd the Information, the importance to the business of confidentiality is at best questionable and the likelihood of prior unregulated discl Is great

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### 36922 RULES AND REGULATIONS

45. Commen6t-In many cases, disclosure of added to the regulation as promulgated be- source, i.e., data concerning substaneco which

one item of information by itself might not low, which will allow the designation of exist In the air as the direct result of the

cause substantial competitive harmto a busi- "control offices" which have exclusive re- emission from a source of one or more other

ness. But the cumulative qffect ofdisclosures sponsibility and authority to disclose cer- substances. of several related, seemingly unimportant tain categories of business inforniation out- Response-The Administrator agrees with items of information could result in great side the Agenty. Such control offices, if and this comment. The regulation has been competitive harm, when designated, shall also maintain infer- modified to incorporate the substance ofthis

Response-The Administrator is conscious mation concerning confidentiality claims, comment. of this possibility and advises that an item determinations, and other pertinent mate- 55. Comment-Emission data should nob of business information will not be deter- rials under this 8ubpart with respect to the be defined to include data concerning "1conmined to be ineligible for confidential treat- items of information for which they are templated" emission sources. ment merely because its disclosure alone responsible. Respfns--The meaning of "emission would not directly cause substantial com- 51. Comment--The regulation should pro- data" is significant because the Clean Ai petitive harm. The test is whether disclosure vide a mechanism by which a business may Act requires that emission data must be of the Item of information would make sub- designate an agent for purposes ofreceipt of made availabi to the public notwithstand. stantial harm to the business's competi- inquiries,end notices under the subpart in Ing any allegation that It Is entitled to Contive position likely. • - order to lessen the likelihood of delay in re- fidentlal treatment. The Administrator be40. Comment-Disclosures under proposed spending to inquiries and notices (especially lieves that the purpose of this statutory §2.209 to Congress the Comptroller General, 'in cases involving large, decentralized busi- disclosure requirement Is to enablo membert)

or other Federal agencies should be brought nesses).. of the public to Inform themselves In order

to the attention of the affected businesses. , Response-The Administrator agrees with that they may initiate, or participate on

Response-Except where legitimate reasons this comment. A new §2.213 has been added an informed basis In, proceedings by which exist for withholding from businesses the to the regulation, as promulgated below, de-- standards and limitations under the Aot are fact of such disclosures (e.g., where law scribing how a business may designate one enforced. The definition of emission datA enforcement would be hampered), the Ad- person as Its sole representative for such should further this ,purpose, Section 2.301 ministrator advises-that there Is no bbjec- purposes. (a) (2) has been rewritten to state moro tion to informing a business that inforna- 52. Comment-The basic definition of clearly the relationship between the purposes tion has been disclosed to other branches "emission data" as proposed In §2.301(a) (2) to be served by disclosure of data and the

or agencies of the Federal government. How- is too broad. It slould-not include descrip- coverage of the term L'iemisslon data." The

ever, automatic notification to a business tions of Ihardware," nor the "details of a reference to "contemplated" sources hat" each time such a disclosure occurred would confidenti process as it is being practiced." been eliminated as unnecessary. As promulcreate administrative burdens for EPA of- Response-It is impossible to make intel- gated below, the definition of emission data ices which the Administrator-finds not to- ligent reference to data concerning an emis- includes data concerning actual (exportbe warranted. Section 2.209 of the regula- sion of a substance Into the air without re- enced) emissions, data needed to caloulate tion has been modified to provide that EPA ferring also to the nature antilocation of the emissions that were allowable under standoffices shall maintain a record of disclosures source of the emission. Section 2.301(a) (2) ards or limitations (to determine compliof business information made to Congress, has been modified slightly to emphasize that ance), and information neeesary to specify tle Comptroller General, or other Federal information concerning the nature of the the identity and location of the source. agencies. Such information, insofar as it per- source is emission data only "to the extent 56. Comment-Thore should be no exolutains to an affected business, will be dis- necessary" to identify the source and to dis- sion fr m the definition of emission data of closed on receipt of written request of that tinguish it from other sources. information concerning products, methods, business, except where legitimate reasons 53. Comment-By including in the defini- devices, or installations merely because they exist for withholding It. I tion of emission data "Information neces- are developed and used solely for research

47. Comment-Disclosure of business in sary to dtermlne the emissions which a purposes. formation should not be made to Congress, standard or limitation permits a source to Response---The Adihinistrator disagrees its committees, or subcommittees unless a emit," theproposed regulation would in some with this statement in largo part, because Congressional subpoena covering such infer- cases require the disclosure of various In- the"exclusion appears to be necessary In ormtion has Aeet d gsued. formation pertaining to stationary sources der to encourage research. However, the AdResponse-The Administrator disagrees' which a business may wish to maintain in ministrator Is of the opinion that informa- with this comment. Dulyauthorized requests confidence, such as raw material feed rates, tion should be disclosed to the extent noces- from Congress, its cominttees, Its subeom- production rates, or byproducts generated. sary to show that a souroo Is (or is not) mittees will be honored; and the requesting This is.improper and goes beyond the Con- complying with applicable standari or dentiality claims and of determinations od gressional intent, limitations, or to substantiate the validity

entitlement to confidential treatment. Response-This comment is based on the of an existing or proposed standard or lira48. comment-Section 2.210 of the pro- fact that in some cases, individual emission Itation. The definition of emisslon data Ies posed rule appears to allow EPA to first de- sources are subject to emission limitations been modified appropriately.

cide whether a request for business infor- expressed In terms of units of pollutant that 57. Comment--The "research" exclusion

mation would be denied under subpart B, may be emitted per unit ofrawmaterial proc- should cover even full-scale installations,

and thereafter decide whether the Informa- essed or per unit of production. In order not just laboratory- or pilot-scale Installation would be withheld for other reasons. that the actual emissions during a period tions, if in fact It is used only for rezearoh

The regulation should provide for parallel may be compared with the allowable emis- purposes.
consideration of all possible bases for with- sions, it is necessary to know how many in- Response--The Administrator adreezi with holding information to avoid delays in re- put or output units were processed by the this comment, and the rule as promulgated

sponso torequests under 5 U.S.C. 552. facility during the period in question. Other- below has been appropriately modified. It

Response-The Administrator agrees with wise, a person would not know whether or should be noted, however, that It Is not this'comment. Section 2.210, as promulgated not a source had complied with the emission anticipated that many full-scale Installabelow, hasbeen revised accordingly.

. limitation. In Section 110(a) (2) (F) of the tiqns will be found to be used solely for

49. Comment-The regulation should state Clean Air Act,' as amended, 42 U.S.C, 1857c- research purposes. For example, a full-scale penalties for improper disclosure of business 5(a) (2) (F), Congress required that emis- industrial installation which is Intended to Information by EPAemployees. slon data concerning-stationary sources be contribute productively to the output of a

Response-The Administrator agrees with correlated with.applicable emission standards business would not be regarded as used
the general tenor of this comment. Section or limitations and bemade available forpub- only for research purposes once the In2.211 of the regulation aspromulgated below lie Inspection. [A simnlar provision, requiring stallation is shown to function and In in
has been rewritten to remind employees of that effluent data be "related to" ppllcable fact contributing to the business's output. the criminal penalties for willful violation standards or limitations, is found In Sec- 58. Comment-Information pertaining to of applicable lawa and to inform employees t ion 308(b) of the Federal Water Pollution products being readied for Introduction into that improper disclosure of business infor- Control Act, 33 U.S.C. 1318(b).] The Ad." a market (but not yet introduced) and inmation may be grounds for adverse person- min'strator finds that Congress, by employ- formation pertaining to ongoing research nel action. Ing such language, desired that members of aimed at improving existing produots on the

50. Comment-The regulation should pro- the public be able to know not only the market should not be automatically Inelivide detailed rules for the handling within, actual emission figures, but also the emis- gible for confidential treatment and thus EPA ofbusiness information. sions allowable under applicable standards should be excluded from the definition of

Response-The Administrator does not be- and limitations.Accordingly, the Administra- emission data. lieve that a regulation is the most effective ' tor disagrees with the comment. Resonse--Tho Administrator agrees In
way in which to issue guidance concerning 54. Comment-The definition of emission part with this comment. However, such Inthe details of handling the various kinds of data should include data concerning pol- formation must be available to the publio business information possessed by various lutants which result from emissions but to the extent necessary to indicate the EPA offices. However, a new §2.212 has been which are not released directly from the source's compliance or non-compliance with

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HeinOnline -- 41 Fed. Reg. 36922 1976applicable standards or limitations, or to permit-EPA to demonstrate the Validity of

an existing or proposed standard or 1imittation. The definition of emis-sion data has been modified accodingi.

59. Under proposed §2.301(e) (substantive criteria for confidential treatment), emission data should not be excluded automatically from eligibility for such treatment.

- Response-The exclusion In question is specifically required by the Glean Air Act, sections 114,208. and 307(a).

60. Comment-Emislon data should be disclosed on request, without any consultation of the business which -submitted it, to avoid delay.

Response-while the Clean Air Act clearly
states that emisslon data must bemade publicly available, it does not define the boundaries of the term. The Administrator finds that it is not unlikely that one or more busi-

- nesses may disagree with the definition Of emission data established In §2301(a)(2) and further finds that the business's procedural rights Isubmlssion of comments and opportunity to seek judicial review) should
not be denied merely because EPA may characterize information as emisslon data.

61. Comment-Of the information towhich 12201 applies, only those "trade secrets" which are "methods of processes" are en- titled to confidential treatment, under the Clean Air Act and its legislative history, and theregulation should not allow confidential treatment for other Information.

Response-The Administrator does not agree with this comment. The Congress supplied no definition of the terms it employed. and (as noted In the May 20, 1975, explanation ofthe proposed approach) the Adminis- trator has been unable to conclude that the Congress intended to require public disclosure of the information which EPA must obtain from businesses in order to develop standards and perform its other emlssons, Routine disclosure to the public of all that information would profoundly affect the business structure ofthe ationIn ways that have nothing to do with the purposes of the CleanAirAct. -62. Commnt-Proposed § 2.301(g), pertaining to disclosure of information otherwise entitled to confidential treatment when the information Is-relevant to a matter in controversy in a proceeding, should allow such disclosure only in those proceedings Wshich involve a public hearing, not In informal rulemaking proceedings.

- Response-The Administrator disagrees with this comment but recognizes that the proposed rule failed to properly acknowledge the differences that exist between proceedings which are conducted on the record and With parties of record,'on the one hand. and proceedings of an informal nature, on the other. There can be no limited disclosure under protective arrangements in an informal rulemaking proceeding; If information is to be disclosed at all, it must be publicly disclosed. This and other differences between the two classes of proceedings have led the Administrator to conclude that there should be separate procedures tobe used in _Informal proceedings, and the regulation has been modified accordingly. Separate procedureshave also been established in theregulation as promulgated below for disclosure in on-the-record proceedings when disclosure Is proposed by EPA, on-the one hand and by a party to the proceeding other than EPA, on the other.

-

63. Comment-There should be no disclo-

sure of the type contemplated by §2.01(g)

- unless the business has the right, as part; of theproceeding,to argue against disclosure.

Response-The regulation has been modlRULES 

### AND REGULATIONS

fled to make clear that a business has thisright84. Comment-Information should be diclosable under proposed §2.0X(g) only if it is actually found to bo relevant to a matter in controversy In the proceeding.

Responso-Tho Administrator aerees with this comment, and the regulation has been modifled appropriately.

65. Comment-Information should be dlsclosed under proposed 12.301(g) only to those parties who have a "busianes or flnancla Interest in-the proceeding" or those Who show'that "the publicInterest would not be adequately served by EPA's representatione"

Respon-e-Tlho Administrator dLgrec3 with this comment. The Administrator does not believe -that the proceedings Ailpreduce the most broadly based and useful ro- sults f relevant Information Is routinely withheld from parties who lack a business interest and who may have a different pereption than that of the Administrator of where the public interest lice. The criteria for disclosure to parties adequately protect against frivolous requeGts.

66. Comment-Propozed 12.301(g) should prescribe the protective measures thatshould be required as a condition of dlscloure to parties.

Responso--Tho Admintstrator bellve3 that, given the variety of circumstances that arise in different proceedings, It is Impossible to anticipate all problems. Details in thsregard
are, It is felt, bestleft to the sound disretion of the administrative law judge or other presiding ofllcer.

67. Comment--The proposed rule's 10-day waiting period for the comments of a bui-

ness on the proposed disclosuro of Information it submitted will unduly delay many proceedings. Moreover. where a delay in releasing Information does ensue, in appropriate cares a corresponding delay in theproceedings should be granted for the benefit of the party which requested disclosure of the information. Finally, the existence of a court order requiring a proceeding to be completed by a certain data should be listed as another basis for shortening the normal 10-day comment period.

Response--The regulation, as promulCated below. now eliminates any reference to a fixed period for a business's comments and instead relies on the discrettlon of the admInistrative lawjudge or other presiding oficer to set a comment period reasonable in the circumstances. With respect to auspendIng the proceedings pending decision on a request for information, this is also a matter that should be left to the prcsiding officer' sound discretlon.

68. Comment-A business's comment3 on
a proposed rule should not be diaclosable under proposed §2.301(g). becauso if a busi-

nes believes Its comments might o m=ado public over its objections, it mayrefrainfrom submitting the comments.

Response-This comment may be baced on
a misunderstanding of proposed §2.301([), which is concerned with certain circum- stances under whlch any information to which §2.301 applies may be disclosed. (Proposed § 2.301 would apply only to information theproduction ofwhich EPA maylReally compel.) The Administrator does notbelleve that there isa basis for discrimination in
treatment of information based on whother

or not EPA obtained it in comment3 in a rulemaking proceeding.

69. Comment--Contractors should not be considered "authorized reprecentativc&' under §2.301(h); the legisativo history of the Clean Air Act and Federal Water Poilution Control Act (FWPCA) Indicate that only EPA officers or employees may be regarded

as authorized representatives. 

### 36923

Response-The Administrator disagrees With this comment.There is legislative histoty pertaining to the PWPCA which Indi- cates. With reference to PWPCA section 308(a) (In which the term "authorized representativo- Is used in a different context; and in a semantically different manner) that only EPA officers or employees may act as "authorized repretentatives" for the purposo of exerclsing a right ofentry onto cer- tainprivate premL

. But In section 114(c), 203(b) and 307(a) of the Clean AirAct, and =etIon 393(b) oftheI PCA, Itappears clear that by authorizing disclosure to "ofcer employee

, or authorized representatives" of the-United States (emphasis added), CongreS3 meant something more than disclosure only to oficers and employees. It also appears that the language in thelegislative history of the PWPCA concerning rights of en- try was based ona reference to section 208(a) of the Clean Air Act, where the right ofen- try is explicitly given only to ofcer or em- ployeea.

70. Comm nt-Information should be disclosed to an EPA contractor under proposed 12.301 (h) only If the affected business given Itsprior consent

Response-The Administmtor disagrees with this comment, which would have the effect or nullifying dticlosure to contractors (the rule elsewhere states that Information may be disclosed If the business consents). Much of EPA's msson must be performed by use of the resources which contractors offer.If thecomment was adopted, businesses could seriously hinder EPA efforts simply by refusing toconsent todisclosure.

71. Commen-t-Information should be disclosed to a contractor underproposed 12.301 (h) only if the affected business has been given prior notice of the contemplated dlsclosure.

Response-The Administrator agrees that prior notice should be given except when to do so 'would Impair the working of an XPA program. The rule as promulgated below has beenmodified accordingly.

72. Comment-Informatlon should be disclosed to a contractor under proposed f 2301 (h) only if affected businesses arerezsonably protected by the arrangements between EPA andthecontractor.

Responze--The Adminbtrator agrees with this cormmant, and the rule as promulgated below has been modified to make more specific the contractor's undertakings, to re- quire recordkeeping by EPA concerning ds

- closures, to require that the contract recognizz explicitly the third-party beneficiary
status of the affected business, to require EPA to determine that the disclosure is ncce-zary for the contract work, and to re- quiro EPA to give effected business s prior notice In most cases of disclosure of information in which they have an Interest.

73. Comment-Bofore EPA discloses information to contractors under proposadl 2.301 (h),an investigation should be made into any po siblo compatitive conflicts of Inter- estthecontractor mayhave.

Pespon--Tho Administrator believes that the protective measurea outlined In the Rerponso to Comment 72 should adequately protect affected busineses in most cases. and notLe that more stringent protective mea- iu may be ta%a in coneetlonwith individual contracts.

74. Commnt-lInformation should be disclozd to stato or local governmental agencles under proposcd f 2.01(h) only if the affected busine-s consenta or if the state or local agency agrees that the information chal not befurther dsclo-ed and that atat*

or local public information acts shall not applyto the Information.

Response

- The Administrator disagrees 'with the comment. Many of the statutes for

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### 36924

'whieh EPA has the primary Federal responsibility (including the Clean Air Act) envislon close working relationships between EPA and state and local pollution control agencies, and such statutes often assign significant responsibilities tostate and local agencies. EPA desires to be able to provide such agencies with information It has which would be useful to them. However, the Administrator recognizes the fact that the other provisions of this subpart would afford Inadequate protection to businesses if disclosure of information to .state and local agencies were made without attention to the
treatment that would be afforded to such nformation by them, Accordingly, the rule

as promulgated below has been modified to provide that information may be disclosed

to state or locAl agencies under §2.301 (h) only if the state or locality itself could have required the business to disclose the information, or If the state or locality hadshown
to EPA's satisfaction that the information will be adequately protected75. Comment

- Various commenters raised the same points with respect to the definition of "effluent data" in proposed 12.302(a) (2) as they raised with respect to the definition of "emission data."

Response-rSee Responses 52 through 61. 76. Comment-Various commenters raised the same points with respect to release of information relevant to a matter in controversy in a proceeding under proposed §§2.302(g), 2.303(g), and 2.304(g) as they raised withrespect to proposed §2.301(g).

Response-See Responses to Comments 62 through 68.

77. Comment-Various commenters raised the same points withrespect torelease of information to authorized representatives under proposed §§2.302(h) and 2.304(h) as they raised with respect
.to proposed I 2.301 (h).

Response-See Responses to Comments 69 through 74.

78. Comment-Proposed, 62.307 (g), which would have established special substantive criteria for use In connection with information obtained In applications for registration of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act, as amended (FIFRA), 7 U.S.C. 136 et seq., would exceed the Administrator's authority and violate 7 U.S.C. 136h. ]?roposed 92.307(g) would deny confidential treatment to certain categories of research data and related Information, but 7 U.S.C. 136h, it is asserted, requires confidential treatment for some of that data. 

### RULES AND REGULATIONS

Confidentiality determinations should W6 theeffective dateoftherule, ratherthan only made only on acase-by-case basis. to Information received on or after the 00th

Response-The Administrator disagrees day alter the rule's effctivo date. This with this comment. However, for reasons change Is justified by the fact that a claim unrelated.to the comment, the special sub- will he determined to have been waived only stantive criteria have been deleted from Ifthe business; first had been warned rpoelfl- §2.307. This action has been' taken because, callythat It mustassert Its claim atthe time under P.L. 94-140, (November 28, 1975), 89 ofsubmission of the Information, Stat. 751, the Administrator maynotpromul- (8) Section 2.204(c) has been modified to gate regulations which implement IF*A Indicate that when a request under 0 U.S.C. without first submitting the regulations to 552 ispending and EPAmust Inquire whether

an external review process. In view of the a business desires to assert a confidentiality delay that would be involved in obtaining claim, any claim In response to that Inquiry such review, the provisions concerning sub- must bemade notlater than one working day stantive criteria have been deleted. (On after the inquiry ismade. The Administrator March 5, 1976, the General Counsel Issued has determined that this change will not iman Interpretative determination concerning pose undue burdens onbusinesses, because of the entitlemeiflt of such Information to con- the case with which a claim may be asserted fidential treatment.) and the business's opportunity to designato

-Iaaddition to the changes tothe proposed a representative for the purpose of handling rule which are discussed in the Comments such Inquiries (see §2.213). and Responses above, other noteworthy (9) Changes have been made in teveral changes are: places in the rule to indicate that although

(1) The definition of "entitled to confiden- various deadlines must be met when there tial treatment" In proposed §2.201(f) has is pending a request for information under beendeleted as unnecessary. 5 U.S.C. 652, a less rigid timetable may be

(2) Definitions of "EPA offce," "EPA legal applied when no such request ispending. office," and "working day" have been added to §2.201. (10) Section 2.204(o) of therule has boon

(3) Section 2.202 has been modified toem- modified to conform the list of topics to be phasize the need for alertness tothe possibl- -addressed by a business In Its comments ity that different types ofinformation within more closely to the substantive criteria under A single document may require different §2.208.
treatment. (11) Section 2.205(f)- has been modified to

(4) Section 2.204(b) has been simplifiedby confine to essentials the Information whieh 'deletion of language which concerned the an EPA office must forward to the EPA legal effect of a prior determination holding that office.

an item ofinformation is notentitled tocon- (12) Section 2.205(a) has been modified to fidential treatment. The treatment of such provide a timetable for Issuance of a Pnlual information Iscovered by §2.204(d) (2). determination by an EPA legal offIco After

(5) The rule has been modified n several a "procedural" denial of a request under 6 places to emphasizethe fact thattwo or more U.S.C. 552. businesses may have an Interest In preserv- (13) Section2.205 (h) hasbeen modified to Ing the confidentiality of the same item of more clearly set forth the procedure by Information, and that it may be necessary to which an EPA, legal office may overrule or resolve separately the confidentiality claims modify an earlier determination holding that ofeach business.See §§ 2.204(c) (1), 2.204(d), an item of Information Is entitled to con- and 2.205(d),(3). fidential treatment.

(6) The rule has been modified to (14)A number of changeshave boonmade acknowledge that abusiness-maydesire con- to §2.307 and §2.303, designed to simplify fidential treatment of an item of Informa- theW application and increase the extent to tion only for a stated period, after which it which they parallel language In other teewould not object to public disclosure of the tions ofthe subpart. information. See §§2.203 (b), 2.204(e) (4) (11), 2.205(d)(2), 2.2053(e), and .204(f) (1) (it). (15) Section 2.309 has been rewritten to eliminate unneeded claboratencsS and In- (7) The requirement that information crease the extent to which the section palalmust bear a confidentiality claim when sub- las other provisions of the subpart. mitted Ifwaiver of the claim is thbe avoided will apply to information received on or after IPR Doc.76-25620 Filed 8-31-76:8:45 am)

FEDERAL REGISTER, VOL 41, NO. 171-WEDNESDAY, SEPTEMBER 1, 1976

HeinOnline -- 41 Fed. Reg. 36924 1976