RULES AND' REGULATIONS

Title 40-Protection of Environment

[FRI 567-71

CHAPTER I-ENVIRONMENTAL

PROTECTION AGENCY

Requests for Informati6-; Confidentiality

df Business Information "

On May 20, 1975, the Environmental

Protection Agency (EPA) caused to be

published in the FEDERAu Rcarsrz a documefit (40 FR 21987) proposing to 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- ments received.

As promulgated below, the rule reflects a number of changes from the proposed rule. Many of these changes were sug- gested bycomments on the proposed rule

made by interested members of the pub- lic; others were found desirable in order

to simplify and clarify various provisions, even though they were not specifically suggested by comments from the public. The changes do not introduce significant 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 this rule-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 of business confidentiality. The regulation represents EPA's attempt to devise a procedure which protects the interests of the 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

if businesses 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 fair opportunity both to assert a confidentiality claim and to substantiate the

claim prior to an EPA ruling on the

claim; allow a business to seek judicial

review of an EPA ruling unfavorable

to It; protect the interests of members

of the public who request disclosure of

business information under the Freedom

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 -while carrying 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. (Subpart A contains the Agency's basic regu- lations concerning the treatment of re- quests for information under 5 U.S.C.

552). Many of the changes 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 not beservedby 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 of rules of agency organization, procedure, or practice, and because pub- lic bomment on these changes is unnec- essary and would iot serve the public interest, 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 that the Part reads as follows:

PART 2-PUBLIC INFORMATION

Subpart A-Requests for Information

Sec.

2.100 Definitions.

2.101 Policy on disclosure of EPA records.

2.102 [Reserved]

2.103 Partial disclosure of records.

2.104 Requests to which this subpart aip- plies. 2.105 Existing records.

2.106 Where requests for agency records

shall be filed.

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 Initial denials of requests. 2.114 Appeals from Initial denials; manner of making. 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 of Business Inf5 rmatlOn

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 included In EPA requests, demands, and forms; method of

asserting businesa confidentiality claim; effect of failure to itmert

claim at time of submission..

2.204, Initial action by EPA oflce.

2.205 Final confidentiality determination by EPA legal offlco.

2.206 Advance confidentiality determinations.

2.207 Class determinations.

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 Safeguarding of busine s information:

penalty for wrongful disclosure, 2.212 Establishment of control offices for

categories of business Information.

2.213 Designation by business of addresse

for notices and inquiries.

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RULES AND REGULATIONS

Sec.

2.214-2.300 [Reserved].

2.301 Special rules governing certain information- obtained under the Clean

Air Act.

2.302 Special rules governing certain information obtained under the Fededal Water Pollution Control Act.

2.303 Special rules governing certain information obtained under the Noise

Control Act of 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 Sanctuaries Act of 1972.

Aurorry: 5 U.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 of the 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.

Subpart A-Requests for Information

§ 2.100 Definitions.

For -the purposes of this part:

(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 similar thing by which

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 the like),

and also includes information preserved

in a form which musJ be translated or deciphered by machine in order to be intelgible to humans. The term includes

documents and the like which were created or acquired by EPA, its predecessors, its officers, and employees by use of

Government funds or in the course of

transacting official business. However, - the term does not include materials

which are legally owned by an EPA offi- cer or employee in his or her purely 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

through reference-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 of EPA rec- orde.

(a) EPA will make the fullest pozsible

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

without undue 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 or need for such records has been shown

by the requestor.

§ 2.102 [Reserved]

"9 2.103 Partial disclosure of records.

If a requested record contain's both

exempt and nonexempt material, the

nonexempt material shall be disclosed,

after the exempt material has been deleted in accordance with § 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 of re- 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 of speeches, 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 the public.

§ 2.105 Existing records.

(a) The Freedom of Information 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 to place 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 existing records.

(b) All existing EPA records are subject to routine destruction according to

standard record retention schedules.

§ 2.106 Where requests for agency rec- ords shall he filed.

(a) A request for records may be filed

with the EPA Freedom of Information

Officer, A-101, 401 M Street, SW, Washington, D.C. 20460.

(b) Should the requestor have reason to believe that the records sought may be

located in,an EPA regional opce, he may

36903

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) Region II (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,

District of 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,

New Mexico, Oklahoma, Texas):

U.S. Environmental Protection Agency, Freedor of Information Officer, Suite 1100,1600

Pattercon Street, Da las, TX 75201.

(7) Region VII (Iowa, Kansas, Missouri, 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, Freedom of Information Officer, Suite B00, 18C0

Lincoln Street, Denver, CO 80203.

(9) Region IX (Arizona, California,

Hawaii, Nevada, American Samoa,

Guam, Trust Territory of Pacific Islands,

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 of Information Officer, 1200 Sixth Avenue, 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

that are addressed to EPA offices, officers, or employees other than the Freedom of

Information Officers listed In § 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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forward a copy of the request 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, if appropriate, 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 in good faith to comply 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 for respond- § 2.108 Form of request. 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 as possible, or determine that the records

forth in § 2.106, but otherwise'need not are not known to exist, or that they are

be in 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 not possessed by EPA;

ably describe records sought. (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 of payment;

allow EPA 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 of this

quester (by telephone when practicable) part;

that the request cannot be further proc- (5) Determine which of the requested

essed until additional information is records legally must be withheld, and

furnished, why (see § 2.119(b));

(b) EPA will make every reasonable (6) Of the requested records which 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 which records will

quest. If a request is described in general be withheld, and why;

terms (e.g., all records having to do with (7) Issue an initial determination a certain area), the EPA office taking ac- 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 will be disclosed and which

practicable) with a view, toward reduc- will be withheld, and signed by a person

Ing the administrative burden of process- authorized to issue the determination

ing a broad request and minimizing the under § 2.113(b). Denials of requests shall

fees payable by the requester. Such at- comply with § 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. a request for one or more existing, located

§ 2.110 Responsibilities of Freedom of records, the responding office shall also

Information Officers. furnish the Freedom 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 tain the records in a manner permitting EPA region) shall mark the request 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 are not in the pos-. ministi-attve information. The request session of the EPA office -which has been

and control slip shall then be forwarded assigned responsibility for responding to

immediately to the EPA office believed to the request but may be in the possession

be responsible for maintaining the of some other EPA office, the Freedom 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 or more EPA offices, each such office shall immediately.

be furnished a copy of the request and

control slip, with instructions concerning § 2.112 Time allowed for issuance of iniwhich 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 of the request and control working day after the date of receipt by

slip, and shall monitor the handling of-' a Freedom of Information Office of a the request to ensure a timely response. request for records, the EPA office respon- (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

the Headquarters or regional Freedom of

Information Office.

(c) There shall be excluded from the

period of 10 working days (or any extension thereof) any time which elapses between the date that a requester Is notified by EPA under § 2.109 that his request

does not reasonably identify the records

sought, and the date that the requester furnishes a reasonable identification.

d) There shall be excluded from the

period of 10 working days (or any extension thereof) any time 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) The EPA office taking action under

§ 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 a period not to exceed 10 additional working days, by furnishing written notice

to the requester within the basic 10-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

periqd required, and only when one or mors of the following unusual circumstances require the extension:

(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 a need 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 the request or among two or more components of EPA.

(1) Failure of EPA to issue a determination within the 10-day period or any authorized extension shall constitute final

agency action which authorizes the re- quester to commence an action in an appropriate Federal district court to

obtain the records.

§ 2.113 Initial denials of requests.

(a) An initial denial of a request may

be Issued only for the following reasons:

(1) The Tecord requested is not known

to exist; '

(2) The record is not in EPA's possession;

(3) The record has been published in

the FEDER" REaIsTrR or is otherwise

published and available for sale;

(4) A statutory provision, provision of this part, or court order requires that

the information not be disclosed;

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RULES AND REGULATIONS

(5) The record is exempt from man- datory disclosure under ,5 U.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- ness confidentiality claim; 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) Assistant Administrators, heads of

headquarters staff offices, and Regional

Administrators are delegated the au- thority to issue initial determinations.

This authority may be redelegated; provided, that the 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 initial determination to deny a request shall be written, signed, and

dated, shall contain a reference to the

Request Identification Number, shall

identify the records that are being withheld (individually, or, if the denial covers a large number of similar records, by described category), and shall state the

basis for denial of each record or category of records being withheld.

(e) If the issuance of the determination to deny a request was directed by some EPA 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 or more existing, located EPA records

shall state that the requestor may appeal the initial denial by sending a written

appeal to the address shown in § 2.106(a)

within 30 days of receipt of the deterrnination.

(g) A determination shall be deemed

issued on the date the determination letter is placed in EPA mailing channels for

first class mailing to the requestor, delivered to the U.S. Postal Service for

mailing, or personally delivered to the

requestor, whichever date first occurs.

(h) When a request must be denied

because the record has not yet been lo-

"cated (although it is believed to exist in

EPA's possession), the EPA office respon-.

sible for maintaining the record shall

continue to search diligently until it is

located or ft appears that the record does

not exist or is not in EPA's possession,

and shall periodically inform the re- questor of the office's progress.

§2.114 Appeals from initial denials;

manner of making.

(a) Any person -whose request has

been denied in whole or in part by an initial determination may appeal that

denial by addressing a written appeal to

the-address shown in § 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 may be treated either as a timely appeal or as a new request, 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 the person who issued the initial

denial. The appeal letter shall also indicate which of the records towhich access was denied are the subjects of the appeal.

§ 2.115 Appeal determination; by whom

made.

(a) The General Counsel shall make one of the following legal determinations

In connection with every appeal from the

initial denial of a request for an existing, located record:

(1) The record must be disclosed;

(2) The record must not be disclosed,

because a statute or a provision of this

part so requires; or (3) The record Is exempt from man- datory disclosure but legally may be disclosed as a matter of Agency discretion.

(b) Whenever the General Counsel has

determined under paragraph (a) (3) of

this section that a record is exempt from

mandatory disclosure but legally may be

disclosed, the matter shall be referred to

the Director of the EPA Offmce of Public

Affairs. If the Director of the EPA 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 the Director of the EPA Office

of Public Affairs determines that the

public interest would be served by disclosure, the record shall be disclosed unless the Administrator (upon a review of

the matter requested by the appropriate

Assistant Administrator, Regional Administrator, or the Director of a Headquarters Staff Office) determines that

the public interest would not be served by

disclosure in which case the General

Counsel shall issue a determination denying the appeal.

(c) The General Counsel may delegate

his authority under paragraph (a) of this

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- .ug appeal.

A determination denying an appeal

from an initial denial shall be in 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) -for denial of the 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 the person whose 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 district in 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 Tine alowed for issuance of appeal determination.

(a) Except as otherwise provided in

this section, not later than the twentieth

working day after the date of receipt by

the Freedom of Information Officer at

EPA Headquarters of an appeal 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) The period of 20 working days shall

be measured from the date an appeal is

first received by the Freedom of Information Officer at EPA Headquarters, ex- cept as other provided in 2205(a).

(c) The Office of General Counsel,

after notifying the Freedom of Information Officer at EPA Headquarters, may

extend the basic 20-day period established under subsection (a) of this sec- tion by 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,

and only when one or more of the following unusual circumstances require the

extension:

(1) There is a need to search for and

cblect the records from field facilities

or other establishments that are separate

from the office processing the appeal;

(2) There Is a need 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 having a substantial Interest In the determination of the request or among two or more components of EPA.

d) No extension of the 20-day period

shall be issued under subsection (c) of

this section which would cause the total

of all such extensions and of any 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 of matters which 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 any EPA 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 or foreign policy and are in fact properly classified pursuant to

such Executive 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 Subpart B) ;

(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 of personal privacy;

(7) Investigatory records compiled

for law enforcement purposes, but only

to the extent that the production of such.

records 'would: (a) interfere with en- forcement proceedings; (b) deprive a person of a right to a fair 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

law enforcement 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- cerning wells.

(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 a matter of policy, EPA will 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) Fee schedule. Fees will be charged

requesters for searching for and reproducing requested records, n accordance

with the following schedule:

RULES AND REGULATIONS

Record search time (EPA employees), $2.50

per half hour.

Computer programming time (EPA employees), $4.50 per half hour.

Reproduction of documents (paper copy of

paper original), $0.20 per page.

Other costs of searching for or duplicating

records (including such Items 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.

No charge shall be made-

,(1) For examination and evaluation

of records 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) If the total fee in connection with

a request is less than $10.00, or if the

costs of collecting the fee would otherwise exceed the amount of the fee;

(4) -'or search time or computer pro- gramming time by EPA employees, if less

than one half hour of such time was required in connection with the request; (5) For responding to a request for one

copy of the official personnel record of the

requester; (6) For furnishing records requested by either House of Congress, or by 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 for the official use of other Federal agencies; or

(8) For furnishing records needed by

an EPA contractor or grantee to perform

the work required by the EPA contract

or grant.

(b) Method of payment. All fee payments shall be in the form of a check or

money order payable to the order of the

"U.S. Environmental Protection Agency" and shall be sent (accompanied by a

reference to the pertinent Request Identification Number(s) ) to the appropriate EPA Freedom of Information Officer.

(c) Prepayment or assurance of payment. If an EPA office determines or estimates that the unpaid fees attributable

to one or more requests by'thd same requestor exceed or will 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

of fees due (or estimated to become due)

under this section In such a case, the

EPA office shall promptly inform the

requester (by telephone, if practicable) of the need to make payment or arrangements to pay. See also § 2.112(d).

(d) Reduction or waiver of fee. The fee

chargeable under this sectios may be reduced or waived by EPA if the public interest would be served thereby. Reduction or waiver of fees shall be considered

(but need not necessarily be granted) in

connection with each request from a repxesentative of the press 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 of Information 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 shall so inform the requester,

The initial determination may be appealed by letter addressed to the appropriate Freedom of Information Officer.

The Director of the EPA Office of Public

Affairs, or the Director's designee In an EPA regional office, shall decide such appeels.

§ 2.121-§ 2.200 [Reserved]

Subpart B-Confidentiality of Business

Information

§ 2.201 Definitions.

For the purposes of this 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

and their 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 may lawfully inure) to the benefit of any private shareholder or Individual.

(-) "Business Informaltion" (sometimes

referred to simply as "Information") means any Information which pertains 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 an Item of business information, a business which has asserted (and

not waived or withdrawn) a business

confidentiality claim covering the Information, or a business which could be

expected to make such a claim If It were aware that disclosure of the information

to the public was proposed.

(e) "Reasons of business confidentiality" include the concept of trade secrecy

and other related legal concepts which

give (or may give) a business the right to

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 a Federal agency to withhold business 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 a business under 18

U.S.C. 1905 or any of the 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 EPA will 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

request for a determination that such information is entitled to such treatment.

(i) "Voluntarily submitted information" means business information in

EPA's possession-

(1) The submission of vhich EPA had

no statutory or contractual authority to

require; and

(2) The submission of -which was 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 of contracts or grants.

(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 or disk.

(k) [Reservedl

(1) "Administrator," "Regional Administrator," "General Counsel," "Regional Counsel," and "Freedom of Information Officer" mhafi the EPA officers

or employeei occupying the positions so

titled. ,

(m) "EPA office" means any organizational element of EPA, at any level

or location. (The terms "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 an EPA legal office," it is the

responsibility of the officer or employee

in charge of'that office to take the action or ensure that itis taken.)

(n) "EPA legal office" means the EPA

General Counsel and any EPA office over

-which the General Counsel exercises

supervisory authority, including the

various Offices of Regional Counsel. (See

paragraph (in) of this section.)

(o) A "working day" is any day on

-which Federal government offices are

open for normal business. Saturdays,

Sundays, and official Federal holidays are

not working days; all other days are.

§ 2.202 Applicability of subpart; priority -where provisions conflict;. records

containing more than one kind of information.

(a) Sections 2.201 through 2.213 establish basic rules governing business

confidentiality claims, the handling by

EPA of business information which is or

may be entitled to confidential treatment, - anddeterminations by EPA of

-whether information 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 the various

statutory provisions. Paragraph (b) of

each of those sections should be consulted to determine whether any of those

sections applies to the particular Information in question.

(c) The basicrules 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 two or more of the sections con- taining special rules apply to the particular information in question, and the

applicable sections prescribe conflicting

special rules for the treatment of the information, the rule which provides

greater or wider availability to the public of the information shall govern.

(e) For most purposes, a document or other record may usefuly be treated as

a single unit of "Information," even

though in fact the document or record Is

comprised of a collection of individual

items of information. However, in applying the provisions of this 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 of this tYpe may arise; e.g., because

a business confidentiality claim covers only a portion of a record, or because only a portion of the record is eligible for confidential treatment. EPA offices taking

action under this subpart must be alert to

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 of useful

portions of records while protecting the

information which is or may be entitled

to confidentiality (e.g., by withholding

such portions of a record 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 confidential treatment or information which

concerns an individual solely In his personal, as opposed to business, capacity.

§ 2.203 Notice to be included in EPA re- quests, demands, and forms; method

of asserting business confidentiality

claim; effect or failure to asscrt claim

at time of submission.

(a) Notice to be included in certain

requests and demands for information,

and in certain forms. Whenever an EPA

office makes a written request or demand

that a business furnish information

which, in the office's opinion, Is likely to

be regarded by the business as entitled to

confidential treatment under this subpart or whenever an EPA office prescribes a form for use by businesses in

furnishing such Information, the reques,

demand, or form shall include or enclose a notice which-

(1) States that the business may. if it

desires, assert a business confidentiality

claim covering part or all of the Information, in the manner described by paragraph (b) of this section, and that information covered by such a claim will be

disclosed by EPA only to the extent, and

by means of the procedures, set forth in

this subpart;

(2) States that if no such claim accompanies the information when it is received by EPA, It may be made available

to the public by EPA without further notice to the business; and

(3) Furnishes a citation of the location of this subpart In the Code-of Federal Regulations and the F'rEnR. R.-

1STMR

(b) Method and time of asserting business confidentiality claim. A business

which is submitting information to EPA

may assert a business confidentiality

claim covering the information by placing on (or attaching to) the Information.

at the time It Is submitted to EPA. a

cover sheet, stamped or typed legend, or other suitable form3 of notice employing

language such as "trade secret," "proprietary," br "company confidentiaL"

Allegedly confidential portions of otherwise non-confidential documents should

be clearly Identified by the business, and

may be submitted separately to facilitate

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 should so state.

(c) Effect of failure to assert claim at

time of submission of information. If Information was submitted by a business to

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) of this section, and if no business confidentiality claim accompanied

the information when it was received by

EPA, the inquiry to the business normally required by § 2.204(c) (2) need not

be made. If a claim covering the information is received after the information Itself is received, EPA will make such

efforts as are administratively practicable to associate the late claim with copies

of the previously-submitted information

in EPA files (see § 2,204(c) (1)). However, EPA cannot assure that such efforts

will be effective, in light of the possibility

of prior disclosure or widespread prior

dissemination of the information.

§ 2.204 1nitialactionbTEPAoffice.

(a) Situations requiring action- Th

section prescribes procedures to be used

by EPA offices in making initial deter-

* minations of whether business Informa-

* tion is entitled to confidential treatment

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Action shall be taken under this section

whenever an EPA office:

(i) learis that it Is responsible for responding to a request under 5 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) desires to determine whether business information in its possession is entitled to confidential treatment, even

though no request for felease of theinformation 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 at the earliest practicable time, in

order to Increase the time available for

preparation and submission of comments

and for issuance of determinations, and

to make easier the task of meeting response deadlines if a request for release of the information is later received

under 5 V.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 in question is entitled to confidential

treatment for reasons of business confidentiality. (1) If such 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

previously been determined to be 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 a previous determination which was issued by an

EPA legal office may be improper or no

longer valid, the office shall so inform the

EPA legal office, which shall consider

taking action under § 2.205(h).

(2) With respect to all information

not known to be covered by such a previous determination, the EPA office shall

take action under paragraph (c) of this

section.

(c) Determining existence of business

confidentiality claims.

(1) Whenever action under this paragraph is required by paragraph (b) (2)

of this section, the EPA office shall 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 which remain applicable to

the Information. If any business is found

to have asserted an applicable 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 if it knew EPA proposed to disclose

the Information, the EPA office shall con- tact a responsible official of each such

business to learn whether the business

asserts a claim covering the Information.

However, no such inquiry need be made

to any busifess-

(A) which failed to assert a claim cov- ering the Information when responding

to an EPA request or demand, or supplying 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

could result in disclosure of the information to the public; or (C) which has otherwise waived or withdrawn a claim covering the 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 of the re- sults of any inguiry under this paragraph

(c) (2). If any business makes a claim

covering the information, the EPA office shall take further action under paragraph (d) of this section.

(3) If, after the examination under

paragraph (c) (1) of this section, and

after any inquiry made under paragraph

(c) (2) of this section, the EPA office

knows of no claim covering the information and the time for response to any inquiry 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) Furnish the notice of opportunity

to submit comments prescribed by paragraph (e) of this section to each business

which is known to have asserted an applicable claim and which has not previously been furnished such notice with re- gard to the information in question;

(li) Furnish, to any person whose re- quest for release of the information Is

pending under 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 EPA legal office; and

(il) Refer the matter to the appropriate EPA legal office, furnishing the

information required by paragraph (f) of

this section.

(2) If, in connection with all applicable claims, the office determines that the

information clearly Is not entitled 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 copy of 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; opportunity to comment.

(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 Is entitled to confidential

treatment, and affording the business an opportunity to comment. The notice shall

be furnished by certified mail (return re- ceipt requested), by personal delivery, or by other means which allows verification of the fact and date of receipt. The

notice shall state the address of the 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, and the method for requesting

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

EPA may furnish a duplicate notice.

(4) The written notice required by

paragraph (e) (1) of this section shall Invite the business's comments on the folFEDERAL REGISTER, VOL. 41, NO. 171-WEDNESDAY-,- SEPTEMBEk 1, 1976

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lowing points (subject to paragraph (e)

(5) of this section):

(D The portions of the Information

which are alleged to be entitled to con- fidential treatment;

-(l) The period of time for which con- 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 a business confidentiality

claim,- accompanied the information

when it was received by EPA;

(v) Measures taken by the business to

guard against undesired disclosure of the

information to others;

(vi) The extent to which the Information 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, or reference to it, If available;

(viii) Whether the business asserts

that disclosure of the 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 the business asserts that

the information Is voumtqrily submitted

Information as deflned-In § 2.201(1), and

if so, whether and why disclosure of the

information, would tend to lessen the

availability to EPA of similar information in the future.

(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 of EPA's understanding of suchfacts where aiproprate.

(6) The notice shall refer to § 2.205Cc)

and shall include the statement prescribed by 12.203 (a).

(f) Materials to be furnished to 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 the EPA legal office

the following-items:

(1) A copy of the Information n question, or (where the quantity or form of

the Information makes forwarding a copy

of the Information impractical) representative samples, a description of the

information, or both;

(2) A description of the circumstances

and date of EPAs acquisition of the 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 or noncompliance 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- der this subpart, and information the office possesses concerning the Information's-entitlement to confidential treatment; and

(9) Copies of other correspondence or memoranda which pert-ain to the matter.

§ 2.205 Final confidentiality detrnination by EPA legal office.

(a) Role of EPA legal office.

(1) The appropriate EPA legal office

(see paragraph (i) of this section) 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 is pend- 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

only if the requestor ba3 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

of the matter, and a requester is entitled

to a decision on the merits.) If an appeal

from such a denial has not been received

by the EPA Freedom of Information Officer on the tenth working day after issuance of the 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 decision under § 2.117 of this part. (b) Comment period; extensions; untimeliness as waiver of claim.

(1) Each business which has been furnished 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 of the comments by that office

not later than the date specified for re- ceipt in the notice (or the date established in lieu thereof under this section).

(2) The period for 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 the business and approved by the EPA

36909

legal office. Except in extraordinary circumstances, the EPA legal office will not

approve such an extension without the

consent of any person whose request for

release of the Information -under 5 U.S.C.

552 is pending. (3) The period for submission of comments by a business may be shortened in

the manner described In paragraph (g)

of this section.

(4) If a business's comments have not

been received by the specified EPA office on the date they are due, that office shall

promptly inquire whether the business

has complied with paragraph (b) (2) of

this section. If the business has complied

but the comments have been lost In

transmission, duplicate comments shall

be requested.

(c) Confildential treatment of com- ments from business. If information submitted to EPA by a business as part of Its

comments under this 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 without the businesss

consent, unless Its disclosure Is duly

ordered by a Federal court, notwithstanding other provisions of this subpart

to the contrary.

(d) Tpes of final determinatiors;

matters to be considered.

(1) If the EPA legal office finds that a business has failed to furnish comments

under paragraph (b) of this section in a manner reasonably calculated to result

in receipt of the comments not later than

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 the information Is not entitled

to confidential treatment under this subpart and, subject to § 2.210, Is available

to the public. (2) In all other cases, the EPA legal

office shall consider each businesss 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 materials as It finds appropriate. With respect

to each claim, the office shall determine

whether or not the information is en- titled to confidential treatment for the

benefit of the business that asserted the

claim, and the period of any such entitlement (e.g., until a certafn date, until the occurrence of a specified event, or per- manently), and shall take further action

under paragraph (e) or CM of this sec- tion, as appropriate.

(3) Whenever the claims of two or more busineses apply to the same information, the EPA legal office shall take ac- tion appropriate under the partleular cr- cumstances to protect the interests of all

persons concerned (including any person

whose request for the- information is

pending under 5 U.S.C. 552).

(e) Determination that information ig entitled to confidential treatment. If the

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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 that request. (f) Determination that information is

not entitled to confidential treatment;

notice; waiting period; release of information.

(1) Notice of denial (or partial denial) of a business confidentiality claim, in the

form prescribed by paragraph (f) (2) of

this section, shall be furnished-

(1) By the EPA office taking action

under § 2.204, to each business on behalf

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 under para- graph (b) of this 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

that requested by the business.

(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

basis for the determination, that it con- stitutes final agency action concern- ing the business confidentiality -claim,

and that such' final agency action may be subject to judicial review under chapter 7 of title 5, United States Code. With

respect to EPA's implementation of the

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 office has first been

notified of the business's commencement

of an action in a Federal court to obtain

judicial review of the determination, and

to -obtain preliminary injunctive relief

against disclosure. The notice shall furthef state that if such an action Is timely commenced, EPA may nonetheless make

the Information available to the public (in the absence of an order by-the court

to the contrary), once the court has denied a motion for a -preliminary injunction 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,

that the business is not taking appropriate measures to obtain a speedy resolution, of the action. If the information

has been found to be temporarily entitled

to confidential' treatment, the notice

shall further state that the Information

will not be disclosed prior to the end

of the period of such temporary entitlement to confidential treatment.

(3) The period established in a notice

under paragraph (f) (2) of this section

'for commencement of an action to obtain judicial review may be extended If,

*before the expiration of such period, a re- quest for an extension is made by the

business and approved by the EPA legal office. Except in extraordinary circumstances, the EPA legal office will not approve such an extension without the

consent of any person whose request for

release of the information under 5 US.C.

552 Is pending.

(4) After the expiration of any period of temporary entitlement to confidential

treatment, a determination under this

paragraph (M shall be implemented by the EPA legal office by making the information available to the public (in the

absence of a court order prohibiting 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 EPA legal offce of commencement of

such an action;

CiD The court, ina timely-commenced action, has denied the business' motion

for a preliminary injunction, or has otherwise upheld the 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 is pending at the time notice is given

under paragraph f) (2) of this section

shall be furnished a determination under

5 U.S.C. 552 stating the circumstances

under which the information will be

released.

(g) Emergency Zituations. If th~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

public health or safety, he may prescribe and make known to interested persons suchshorter cerement period (paragraph

(b) of this section), post-determination waiting period (paragraph (f) of this

section),- or both, as he finds necessary under the circumstances.

(h1) Modification of Prior determinations. A determination that information

is entitled to confidential treatment for

the benefit of a business, made under this

subpart by an EPA legal office, shall con- tinue in effect in accordance withi its

terms until an EPAlegal office taking ac- tion -under this 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 EPA legal office tentatively concludes

that such an earlier determination is of

questionable validity, It shall so inform

the business, and-shall afford the busi- ness an opportunity to furnish comments on pertinent Issues in the manner doscribed by § 2.204(e) and paragraph (b)

of this 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 It would have ended under the ear- lier determination, the office will follow

the procedure, described in paragraph

(f) of this section. Dleterminations under

this section may be made only by, or with the concurrence of, the General

CounseL

(I) Delegation and redelegation of au- thority. Unless the General Counsel

otherwise directs, or this subpart otherwise specifically provides, determinations and actions required by this subpart to be made or taken by an EPA legal

office shall be made or taken by the ap- propriate Regional Counsel whenever the

EPA office 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 of his authority under this subpart to

any attorney employed by EPA on a fulltime basis under the General Counsel's

supervision. A Regional Counsel may ro- delegate any or aUl of his authority under

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 information to EPA;

(2) The business asserts that the Information, if submitted, would constitute

voluntarily submitted information under

§ 2.201(1) ;

(3) The business will voluntarily submit the information for use by EPA only If EPA first determines that the Information is entitled to confidential treatment

under this subpart; and

(4) The EPA office which desires submission of the information has request- ed that the EPA legal office Issue a detormination under this section.

(b) The EPA office requesting an ad- vance determination under this section

shall-

(1) Arrange to have the business furnish directly to the EPA legal office a copy of the information (or, whero

feasible, a description of the nature of

FEDERAL REGISTER, 1OL. 41, NO. 1-71-WEDNESDAY, SEPTEMBER 1, 1976

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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 to the EPA legal 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 shall so Inform the business

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 (except that 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

court to do so). The legal office shall not

disclose the information to any other

EPAoffice or employee and shall not use 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 if he finds that-

(1) EPA possesses, or is obtaining, re- lated items of business inforination;

(2) One or more characteristics com- mon to all such items of information 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 for one or more purposes

under this subpart; and

(3) A-class determination would serve -a useful purpose. (b) A class determination shall clearly

identify the class of Information to

which it pertains. (c) A class determination may state

that all of the information in the class--

(1) Is, or Is not, voluntarily submitted

Information under § 2.201(1) ;

(2) Is, or Is not, governed by a partic- ular section of-this subpart, or by a particular set of substantive criteria under

this subpart;

(3) Fails to satisfy one or more of the

applicable -substantive criteria, and Is

therefore ineligible for confidential

treatmentl

(4) Satisfies one or more of the applicable substantive criteria; or (5) Satisfies one or more of the appll

cable substantive criteria during a cer- tain perod, but will be ineligible for con-

-fdential treatment thereafter.

(d) The purpose of a 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 of the

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 of materials

required to be furnished to the EPA legal

office under § 2.204(d) (1) (I), may be

modified to reflect the fact that the class

determination has made unnecessary the

submission of materials pertinent to one or more issues. Moreover, In appropriate cases, action based on the class determination may be taken under § 2.204(b)

(1), §2.204(d), § 2.205(d), or §2.20(,

However, the existence of -a class determination shall not, of Itself, affect any

right a business may have to receive any notice under § 2.204(d) (2) or § 2.205(f).

§ 2.208 Substantive crteria for ue in

confidentiality determinations.

Determinations issued under § 2.204

through 2.207 shall hold that business information is entitled to confidential

treatment for the benefit of a particular business if-

(a) The business has asserted a busl-.

ness confidentiality claim vhich has not

expired by Its terms, nor been waived nor

withdrawn; (b) The business has satisfactorily shown that It has taken reasonable

measures to protect the confidentiality

ofthe information, and that It intends to

continue to take such measures; (c) The information is not, and has

not been, reasonably obtainable .without

the business's consent by other persons (other than governmental bodies) by use

of legitimate means (other than discovery based on a showing of special need in a judicial or quasi-judicial pro- ceeding) ; (d) No statute specifically requires disclosure of the information; and

(e) Either-

(l) The business has satisfactorily shown that disclosure of the information

is likely to cause substantial harm to the

businesss competitive position; or

(2) The information Is voluntarily submitted information (see § 2.201(t)),

and its disclosure would be likely to impair the Government's ability to obtain

necessary information in the future.

§2.209 Disclosure in spccial drcumstances.

(a) General. Informationwhlch, under

this subpart, is not available to the public

may nonetheless be disclosed to the persons, and in the circumstances, described

by paragraphs (b) through (f) of this

section. (This section shall not be con- strued to restrict the disclosure of Itermation which has been determined to be

available to the public.)

(b) Disclosure to Congress or the

Comptroller General Upon recept of a written request in appropriate form,

EPA will disclose business information to

either House of Congress, 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- questing body of any unresolved buskes

confidentiality claim known to cover the

information, and of any determination

by EPA under this subpart holding that

the information Is entitled to confidential

treatment.

c) Disclosure to other Federal agenies. EPA may disclose business information to another Federal agency If-

(1) EPA receives a written request for

disclosure of the information 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

to confidential treatment; and

(4) The other agency agrees not to disclose the 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 other agency has obtained the

consent of each affected business to the

proposed disclosure; or (ill) The other agency has obtained a - written statement from the EPA Genera

Counsel or anEPA Regional Counsel that

disclosure of the Information would be

proper under this subpart. (d) Court-ordered disclosure. EPA

may disclose any business information

in the manner and to the extent ordered

by a Federal court.

(e) Disclosure within EPA. An EPA

office, officer, or employee may disclose

any business information to another EPA

office, offIcer, or employee with an official

need for the information.

f) Disclosure with consent of busf- ness. EPA may disclose any business Information to any person If EPA has obtained the prior consent of each affected

business to such disclosure.

(g) Record of disclosures to be izaintained. Each EPA office which discloses

Information to Congress, a committee or subcommittee of Congress, the Comptroller General, or another Federal

agency under the authority of paragraph

(b) or (c) of this section, shall maintain a record of the fact of such disclosure for a period of not less than 36

months after such disclosure. Such a rec- ord, which may be in the form of a log,

shall show the name of the affected-businesses, the date of disclosure, the person or body to whom disclosure was made,

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

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36912

and a description of the Information

disclosed.

§ 2.210 Nondisclosure for reasons other

thanusiness confidentiality or where

disclosure is prolibited lylother statute.

(a) Information which is not entitled

to confidential treatment under this subpart shall be made availAble to the public (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 of avoiding

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, the matter shall

be referred promptly to an EPA legal office for resolution. Pendilig resolution,

such information zshall be -treated as if

it were entitled to confidential treatment.

§ 2211 Safeguarding of busincss inforination; penalty for wrongful dLsco- sure.

(a) No EPA officer or ,employee may

disclose, or use forhids or her private gain

or advantage, any buiness information

which came into his or her possession, or to which he or ,she ,gained access, 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 of paragraphs (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

may result in criminal 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. Willful violation of this 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 or more -mutually exclusive

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 EPA legal office) with respect to all information within such category.

(b) if a control office bas been as- -signed responsibility for a category of

business Information, no other EPA offlce, officer, or employee may make available to the public (or otherwise disclose

to persons other than EPA officers and

employees) any information in that

category without first obtaining the concurrence of-the control office. Requests

under 5 U.S.C. 552 for release of such information shall be referred to the con- trol office.

- (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 in support of

claims;

(3) Waivers and withdrawals of

claims;

(4) Actions -and determinations by

EPA under this subpart;

(5) Actions-by Federalrcourts; and

(6) Related Information concerning

business confidentiality.

§ 2.21& Designation by business of addressee for notices and inquiries.

(a) A business which wishes to deslgnate a 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'Freedom of Information Officer (A-101), Environmental Protection Agency, 401 M

St. SW., Washington, D.C. 20460, the

following information: the name and address of the business making the designation; the name, address, and telephone

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,

be furnished to the designee pursuant to.

this section. Only one person or office

may serve at any one time as abusiness's

designee under this subpart.

(b) If a business has named a designee

under this section, the following EPA in-

'qurles and notices to the business shall

be addressed to the designee:

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

(1) Inquiries concerning a business's

desire to assert a business 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 and proposed 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 for the dissemination within EPA

of information concerning such designations.

§§ 2.214-2.300 [Reserved]

§ 2.301 Special rules governing cerlain

information obtained under the Clean

Air Act.

(a) Definitions. For the purpose of this

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

any substance 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

by the source (or of any pollutant 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

the emissions which, under an applicable

standard or limitatlon, the source was authorized to emit (including, to the extent necessary for such purposes, a description of the manner or rate of operation of the source); and

(C) A general description of the location 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 constituting the source).

(I) Notwithstanding paragraph (a)

(2) (1) of this section,' the following information shall be considered to be

"emission data" only to the extent neces- sary to allow EPA to disclose publicly

that a soure is (or is 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:

/

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(A) Information concerning research. or the results of research, on any project method, device or installation (or any component thereof) which was produced. developed, installed, and used only for

research purposes; .and

(B) Information concerning any product, 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 the Act or pursuant to any regulation

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) of the Act, 42

U.S.C..1857f-7(1).

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

Vas- -() Provided or obtained under section

114 of the Act, 42 U.S.C. 1857c-9, by the owner or operator of any stationary

source, for the purpose (A) of developing or assisting in -the development of any implementation plan under section 110 or: 111(d() of the Act., 42 U.S.C. 1857c-5, 1857c-6 (d), any standard of performance under section 111 of the Act, 42 U.S.C.

1857c-6, or any emissi standard under

section'll2 of the Act, 42 U.S.C. 1856c-7,

(B) -of determining whether any person is in violation of any such standard or any requirement of such a plan, or (C) of

carrying out section 119 or 303 of the

Act, 42 U.S.C. 1857c-10. 1857h-1;

(i Provided or obtained under setion

208 of the Act, 42 U..C. 1857f-6, by any manufacturer, for the purpose of en- abling the Administrator to determine

whether such manufacturer has acted or Is acting in compliance with the Act and

regulations under the Act; or (iii) Provided In ' response to a subpoena for the production of papers, books, or documents Issued under the au- 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 of the Act if it was provided in response to request by EPA made for

any of the purposes stated in section 114, or if its submission could have been re- quired under section 114, regardless of

whether section 114 was cited as the au- thority for any request for the information, whether an order to provide the

information was issued under section 113

(a) of the Act, 42 U.S.C. 1857c-8(a), whether an action was brought under

section 113 (b) of the Act, 42 U.S.C. 1857c8(b), orkwhether the Information was provided directly to EPA or through some third person. (3) Information will be considered to

have been provided or obtained under

section 208 of the Act if it was provided in response to a request byEPA madefor

any of the purposes statedIn section 208,

RULES AND REGULATIONS

or if Its submission could have been re- quired-under section 208. regardea of

whether section 208 was cited as the authority for any request for the nforma,- tion, whether an action was brought under section 204 of the Act, 42 U..C.

1857f-3, or whether the Information was

provided directly to EPA or through zome

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), or if its producUon could have been required by subpena jinder section 307(a), regardless of

wfether section 307(a) was cited as the

authority for any request for the 1nformaton, whether a subpoena was issued

by EPA, whether a court issued an order

under section 3074a), or whether the Information was provided directly to EPA

or through some third person. (5) This section specifically does not

-apply to Information obtained under aection 115(,Q) or 211(b) of the Act, 42 US.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 applies without change to Information to which this section applies; however, no Information to which this section applies is voluntarily submitted information.

(e) Substantive criteria for use in confldentialitJ determinations. Section 2.208

epplles -to information to which this

section applies, except that information

which Is emission data or a standard or

limitation Is not eligible for confidential treatment. No information to which

this section applies Is voluntarily submItted Information.

(M AvailabRty of information not

entitled to confidential treatment. Section 2210 does not apply to information

to which this section applies. Emlision

data, standards or limitations, and any other Information provided under section 114 or 208 of the Act which Is determined under 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 issuedunder section307(a) of theActshall

be available to the public notwithstanding any other provision of this part. Information (other than emission data and

standards or limitations) provided in response 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 to the public, unless EPA determines 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

to the public.

36913

(g) Disclosure of information relerant

toaproceeding.

(1) Under sections 114, 208 and 307

of the Act, any Information to which

this section applies may be released by EPA because of the relevance of the Information to a proceeding, notwithstanding the fact that the Information otherwise might be entitled to confidential

treatment under this subpart. Release of

Information because of its relevance to a proceeding 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

made on the 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) until any affectedbusi- ness has been informed that EPA is con- sIdering making the information available to the public under this paragraph (g) (2) in connection with an identified

rulemaking proceeding, and has afforded

the business a reasonable period for

comment (such notice and opportunity

to comment may be afforded in connec- -.

tion with the notice prescribed by § 2.204

(d) (1) and § 2.204(e)). Informatlonmay be made available to the public under

this paragraph (g) (2) only if, after con- rideration of any timely comments submitted by the business, the General

Counsel determines that the information

Is relevant to the subject of the proceed- ing and the EPA office conducting the

proceeding determines that the public Interest would be served by making the

information available to thepublic. (3) In connection with any proceeding In which It appears that a decisionwill

be made on the record after an oppor- tunity for a hearing, information to

-Which this section applies may be made

available to the public, or to one or more parties of record to the proceeding, under this paragraph (g) (3). An EPA

office proposing disclosure of information

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 disclosure under this

paragraph (g) (3) has been proposed, 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 this piragraph (g) (3) only if, after consideration of any timely eom- ments submitted by the business, the

EPA office determines In writing that, for reasons directly associated with the con- duct of the proceeding, the contemplated disclosure would serve the Public interest, and the presiding 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 of rec- ord, under protective arrangements or commitments, shall not, of itself, affect

the eligibility of information for con- fidential treatment under the other provisions of this subpart.

(4) In connection with any 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 of rec- ord to the proceeding, under this para- graph (g) (4). A party of record seeking disclosure of information shall direct his

rmquest to the presiding officer. Upon re- 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 for comment

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 of record 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 to him, and (ii)

any harm to an affected business that

would result from the disclosure is likely to be outweghed by the benefit to the

proceeding and to the public interest that

would result from the disclosure. The

presiding officer may condition disclo- sure of the information to a party of rec- ord on the making of such protective ar- rangements and commitments as he finds

to be warranted. Disclosure f6 one or more parties of record, under protective

arrangements or commitments, shall not, of itself, affect the eligibility of Information to confidential treatment under the

other provisions of this subpart.

(h) Disclosure to autlorized repre- sentatives. (1) Under sections 114, 208

and 30'(a) of the Act, EPA possesses au- thority to disclose to any authorized representative of the 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) of this section.

(2) (1) A person under-contract to EPA

to perform work for EPA in connection

with the Act or regulations 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 the EPA 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 shall use the information only for

the purpose of carrying out the 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 -an EPA legal office, and shall

return to EPA all copies of the Information (and any abstracts or extracts therefrom) upon request by the EPA program

office or whenever the information is no longer required by the contractor for the

performance of the work required by the

contract, nor unless the contract further

provides that the contractor shall obtain a written agreement to honor such terms

of the contract from each of the 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 are included for the benefit of, and shall'

be enforceable by, both EPA and any affected business having an interest in information concerning it supplied to the

business by EPA under the contract.

(iii) Except to the extent that the

EPA program office determines In writIng that conduct of EPA activities would

be seriously hampered by notifying affected businesses of disclosures proposed

to be made under this paragraph (hi) (2), no Information shall be disclosed under

this paragraph (h) (2) until each affected,

business has been furnished notice of the

contemplated disclosure by the EPA program office, and has been afforded a pe- riod found reasonable by that office (not

less than 5 working days) to submit its

comments. Such notice shall include a description of the information to be disclosed, the identity of the contractor, the

contract number, and the purposes to be

served-by the disclosurb.

(iv) The EPA program office shall prepare a record of each disclosure under

this paragraph (h) (2), showing the con- tractor, theontract number, the information disclosed, the date(s) of disclosure, and each affected business. The EPA

program office shall maintain the record

of disclosure, the determination of neces- sity prepared under paragraph (h) (2) (1) of this section, and any determination

not to notify-affected businesses prepared under paragraph (h) (2) (ill) of this 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 or responsibili- 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 to which this

section applies may be furnished to such an agency at the agency's written re- quest, but only If-

(i) The agency has first furnished to

the EPA office having custody of the 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 affected business is Informed

of those disclosures under this paragraph

(h) (3) which pertain to It, and the

agency has shown to the satisfaction of an EPA legal office that the agency's use and disclosure of such Information will

be'governed by state or local law and pro- cedures which will provide adequate protection to the Interests of affected busi- nesses.

§ 2.302 Special rules governing certain

information obtailnCd under the Fed.

eral Water Pollution Control Act.

(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, with ref- 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 of the 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 of the 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 constituting the source).

(ii) Notwithstanding laragraph (a) (2) (1) of this section, the following information shall be considered to be "effluent data" only to the extent necessary

to allow EPA to-disclose publicly that a source is (or Is 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, and used only for research purposes; and

(B) Information concerning any product, method, device, or installation (or

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36914

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RULES AND REGULATIONS

tended.to-be marketed or used commer- (e) Substantive criteria for use in concially but not yet so marketed or used. fidentiality determinations. Section 2.208

(3) "Standard or limitation" means applies to information to which this scc- anuy Prohibition,.any effluent limitation. tion applies, except that information

orany-oxic, pre-treatment or new source which is effluent data or a rtandard or performance standard established or limitation is not eligible for confidential

publicly proposed pursuant to the Act or treatment. No information to which this

pursuant to regulations under the Act, section applies is voluntarily submitted

including limitations or prohibitions in a information.

permit issued or proposed by EPA or by a (f) Availability of information not en- State auder section 402 of the Act 33 titled to confidential treatment. 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 under regula- 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 of this part. Effluent

under section 308 of the Act, 33 U.S.C.. data and standards or limitations pro- 1318, by'or from the owner or operator of vided In iesponse to a subpoena issued

any point source, for the purpose of car- under section 509(a) of ths 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 the Act, or' standards or limitations) provided In re- 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) of theAct 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 than rea- section 308 of the Act if it 'was provided sons of business confidentiality and can- in response to a request by EPA made for not or should not be made available to

any- of the purposes stated in section the public.

308, or if its submission could have been (g) Disclosure of information relevant

required under section 308, regardless of to a Proceeding.

whether section 308 was cited as the nu- (1) Under sections 308 and 509(a) of

thority for any request for the informa- the Act, any Information to -which this

tion, whether an order to provide the in- section applies may be released by EPA

formation was issued under section 309 because of the relevance of the Informa-

(a) (3) of the Act, 33 U.S.C. 1319(a) (3), tion to a proceeding, notwlthstanding

whether a civil action was brought under the fact that the information otherwise

section 309(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 Inprovided directly to EPA ortbrough 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 its production 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 as the sentatives. (1) Under sections 308 and

authority for any request for the infor- 509(a) of the Act, EPA poseszes aumation, -whether a subpoena was issued thority to disclose to any authorized repby EPA, whether a court issued an order resentative of the United State- any

under section 307(a), or -whether the in- information to which this section apformation was provided directly to EPA plies, notwithstanding the fact that the

or through 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) of the 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 -which apply 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 and 2.211 through 2213 apply ence as paragraphs (h) (2) and (hi) (3),

without change to information to which respectively, of this section.

this section applies.' § 2.303 Special rules governing certain

-(d)special procedure for advance con- information obtained under the Noiso

ftdetialt&z, determinations. Section 2.206 Control Act of 1972.

applies without change toinformationto (a) Definitions. For the purpozes of

which this section applies; however, -no this section:

information to which this section applies (1) "Act" means the Noise Contrbl

is voluntarily 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 In 42 U.S.C. 4902(3).

(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.

(b) Applicability. This section applies

only to information provided to or obtalned by EPA under section 13 of the

Act, 42 U.S.C. 4912, by or from any man- 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 of whether section 13 was cited as authority for the request 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 to EPA

by the manufacturer or through some third perso.

(c) Basic rules which apply without

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 Procedure for 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 for use in canfdetiality determination. Section 2.203-

applies without change to information

to which this section applies; however, no information to w hich this section applies is voluntarily submitted information.

(f) Reserved.

(g) Disclosure of inorrmation 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 confidential treatment under this subpart. Re.:

lease of Information because of its rele- vance to a proceeding shall be made only 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, of this sectimon.

(hi) Recerved.

§ 2.30- Special rules governing certain

information obtained under the Safe

Drinking Water AcL

(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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36915

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36916

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

(3) 'Proceeding" means any rulemakIng, adjudication, or licensing process

conducted by EPA under the Act or under regulations which implement the

Act, except for any determination under

this part.

(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 of financial assistance under the Act; and

(i) Which was provided 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 regulation under

section 1412 of the Act, 42 U.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 issued under section 1441(c) of the

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 in response to a request by EPA or its au- thorized representative (or by a State

agency administering any programunder

the Act) made for any purpose stated

in paragraph (b) (1) of this section, or If its submission could hafe been required

under section 1445 of the Act, 42 U.S.C.

300J-4, regardless of whether such sec- tion was cited in any request for the information, or whether the Information was provided directly to EPA 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 to Information to 'which this section applies.

. (d) special procedure for advance con- f7entiality determinations. Section

2.206 applies without change to information to which this section applies; however, no information to which this sec- tion applies Is voluntarily submitted

Information.

(e) Substantive criteria for use in con- fildentiality determnations. Section 2.208

applies to information to which 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 to which this

RULES AND REGULATIONS

section applies is voluntarily submitted

information.

(f) Nondisclosure for reasons other

than business confidentiality or where

disclosure is prohibited by other statute.

Section 2.210 applies to information to

which this section applies, except that

information which deals with the existence, absence, or level of contaminants

In drinking- water shall be available to

the public notwithstanding any other

provision of this part. (g) Disclosure of information relevant

to a proceeding. (1) Under section 1445

(d) of the Act, any information to which

this section applies may be released by EPA because of the relevance of the information to a proceeding, notwithstanding the fact that the information Otherwise might be entitled to confidential

treatment under this subpart. Release of

information to which this section applies 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) are Incorporated by reference as paragraphs (g) (2), (g) (3), and

(g) (4), respectively, of this section.

(h) Disclosure to authorized repre- sentatives. (1) Under section 1445(d) of

the Act, EPA possesses authority to disclose to any authorized representative of

the United States any Information to

which this section applies, notwithstanding -the fact that the Information otherwise migit, be entitled to' confidential

treatment under this subpart. Such authority may be exercised only in accordance with paragraph (h) (2) or (h) (3) of

this section.

(2-3) The provisions of § 2.301 (h) (2) and (h) (3) are incorporated by reference

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

§ 2,305 [Reserved]

§ 2.306 [Reserved]

§ 2.307 Special rules goverting ecrtaln

information obtained under the 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, 7 U.S.C. 135 et seq. (2) "Applicant" means any person who has submitted to EPA (or to a predecessor agency with responsibility for

administering the Act) a registration

statement-or application for registration -under the Act of a pesticide or of an

establishment.

(3) "Registrant" means any person who has obtained registration under the

Act of a pesticide or of an establishment,

(b) Applicability. This section applies to all information submitted to EPA by

an applicant or registrant for the purpose of satisfying some requirement or

condition of the Act or of regulations which implement the Act, Including information originally submitted to EPA

for some other purpose but incorporated

by-the applicant or registrant Into a submission in order to satisfy some requiremiient or condition of the Act or of regulations 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 of this 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) Initial action by 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

seeking judicial review shall be reflected

In any notice furnished to a busineas

under § 2.204(d) (2).

(e) Final confidentiality determination by EPA legal office. Section 2.205 ap- plies to information to which this sce- tion applies, except that-

(1) Notwithstanding § 2.205(i), the

General Counsel (or his 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 by the second sentence of § 2.205

(f) (2), the notice of denial of a 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

31 calendar day period prescribed by § 2.-

205(f) (M), as modified by paragraph (0)

(3) of this section, shall not be shortened without the consent of the business.

(f) Special procedure for advance con. fidentiality determinations. 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) Substantive criteria for use in con- fidentiality determinations. Section 2,208

applies without change to information 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 to which this

section applies to physicians, pharmacists, and other qualified persons needing

such information for the performance of their 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) of this section.

(2) Information to which this section

applies may be disclosed (notwithstanding the fact that it might otherwise be

entitled to confidential treatment under

this subpart) to physicians, pharmacists,

hospitals, veterinarians, law enforcement

personnel, or governmental agencies with

responsibilities for protection of public

health, and to employees-, of any such

persons or agencies, or to other qualified

persons, when and to the extent that disclosure 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 of the Administrator othis 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- tract to EPA to perform work for EPA in

connection with the Act or regulations

which implement the Act, if the EPA

program office managing the contract

first determines in writing that 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 the Administrator, 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

this section:

,1) "Act" means the Federal Food,

Drug and Cosmetic Act, as amended, 21

U.S.C. 301 et seq.

(2) 'Petition" means a petition for

the issuance of a regulation establishing a tolerance for a pesticide chemical or

exempting the pesticide chemical from

the necessity 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 to EPA (or to a predecessor agency). (b) Applicability. (1) This section applies only to business Information submitted to EPA (or to an advisory cornmittee established under the Act) by a pjtitioner, solely in support of a petition which has not been acted on by 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, rather than this sec- 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 Rodenticide Act, as amended), even though

such information was originally submitted by a petitioner in support of a petition. (3) This section does not apply to information gathered by EPA under a proceeding 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 Information to which this section applies. Section 2.203(c), however, does not apply to

information to which this section applies. A petitioner's failure to assert a claim

Iwhen initially submitting a petition shall

not constitute a waiver of any claim the

petitioner may have.

(e) Initial action by 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 that the information in the petition is or may be entitled to confidential

treatment and shall take action in ac- cordance with § 2.204(d) (1) ;

(2) In addition to other required pro- visions of any notice furnished to a petitioner under § 2.204(e), such notice shall

state that- -

(i) Section 408(f) of the Act, 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 of a tolerance) neither the

Act nor this section affords any protection to the information;

(ii) Information submitted in support

of a petition which Is also incorporated into a submission In order to satisfy a requirement or condition of the Federal

Insecticide, Fungicide and Rodenticide

Act, as amended, 7 U.S.C. 136 et seq., Is

regarded by EPA as being governed, with

respect to business confidentiality, by

§ 2.307 rather than by this section;

(iii) Although It appears that this sec- 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 to the information; and

(iv) Information determined by EPA

to be covered by this section will not be

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 Information to which this sec- tion applies, 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

the actions required 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) shall be

furnished to each 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. With re- 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, 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

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 and to obtain preliminary injunctive relief against disclosure; provided, that the Information

will not be made available to the public

for so long as It is entitled to confidential

treatment under section 408(f) of the

Federal Food Drug and Cosmetic Act, 21

U.S.C. 346a(f).11; and

(3) Notwithstanding § 2.205(g), the 31

calendar day period prescribed by § 2.205

(f) (2), as modified by paragraph Mf) (2)

of this section, shall not be shortened

without the consent of the business.

(g) Special procedure for advance con- fidentiality 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.

(h) Substantive criteria for use in con- fidentiality determinations. Section 2.208

does not apply to information to which

this section applies. Such information

shall be determined to be entitled to con- fldential treatment for so long as this

section continues to apply to it.

(I) Disclosure in special circumstances.

(1) Section 2209 applies to information

to which this section applies. In addition,

under Section 408(f) of the Act, 21 U.S.C.

346a(f), EPA is authorized to disclose

the information to other persons. Such

authority under section 408(f) of the

Act may be exercised only in accordance

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RULES AND REGULATIONS

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 of 1972.

(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

tIon for 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) Substantive criteria for use in co

11dentiality determinations. 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

may be submitted separately to facilita

Identification and handling 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 of information.

(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 of entitlement 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 read as follows:

.07 § 60.9 Availability of information. h- his The availability to the public of information provided to, or otherwise obn tained 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 FOR HAZARDOUS 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 to read as follows:'

g-. § 79.3 Availability of information.

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.

Certifications issued pursuant to section

401 of the Act, 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 shall be governed by Part

2 of this 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 of information 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, or otherwise 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 OR ON RAW AGRICULTURAL COMMODITIES

11. By revising paragraph () of § 180.7.

to read as follows:

§ 180.7 Petitions proposing tolerancces or exemptions for pesticide residu e

s'

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 of Information 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 of proposed rule making dated May 20

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RULES AND REGULATIONS

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

allegedly confidential information to be made

public- (e.g., masking the business's identity

or disclosing the data in aggregated form).

Response-Section 2.202 (b) has been modified to emphasize the possibility of use of

such techniques. _ 2. Comment-The proposed rule would 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 of discretion, even if the informa$1on had been

found to be entitled to confidential treatment, would conflict with the basic approach

of the regulation, which is that businesses

are entitled to know the extent of the protection EPA will 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 and grants.

Response-The Administrator agrees ,yith

this comment. Section 2201(i) of the rule 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 EPA in 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

of information should prevail.

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 to the 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 be regarded as

confidential.

6. Comment.-There should be no requirement that a 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

with ihis comment. EPA experience 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 the information are likely

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 risk of 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 asert a claim at the

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

EPA offices to initiate the determination process as soon as it appears likely that requests

for the information eventually will be received by EPA. even though they have not 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) re36919

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 for EPA.

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 that Item of Information 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 regard to information which Is certain or likely

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 for possible 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 has previously been given to the businezs 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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RULES AND REGULATIONS

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), or that the information may

be entitled to confidential treatment, in

which cfe further inquiry is made and the

atter Is referred 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 further to-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 at that 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 of a business confidentiality determination; with regard to most of this 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 of much of the business inforniation EPA possesses and will continue to acquire. The Administrator does not

believe It will be possible In most cases to

issue decisions on the merits before 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 of Initial 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 tend to increase the proportion 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 of Information

is entitled to confidential treatment. An

assertion of entitlement should be regarded

as conclusive, or at least as prima facie, proof

of entitlement.

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 item of 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 or travel

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 to be no logical reason why 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 their business

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 EPA possesses the information only because

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 to the 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 of Its 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

judicial review 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 purposes of retaining legal counsel, familiarizing counsel with the facts, determining

whether to seek judicial 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 from disclosure and will pe 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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the Administrator has concluded 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 the regulation 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

of the proposed rule.

27. Cr ment-Proposed J 2205(g) should

be modified to provide that the comment

period and post-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 EPA legal 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 should provide that the appeal determination must be

issued by- a person other than the person

who issued the initial determination, at least

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 allow EPA 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 to allow such determinations.

33. Comment-Business information submitted to an EPA legal ofe for the sote

purpose of obtaining an advance confidentiality determination should not be regarded

as an "agency record" and. If the 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 pursuant to a court order.)

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 been modified 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

prior notice 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 re36921

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 of information. 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 beleves that

the "Irational Parke' case cited above precludes PA from taking such an approach

and that the test as now stated in 12308 is

the proper 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 not believe that It is now possible to Issue comprehensiva listings of the type urged by the

comment. While it is desirable, for businesses

and the public to become aware of the 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 1 2.207.

42. Comment--Section 2.208 should not require 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 modLfed to eliminate the burden on

the buiness of making an affirmative showing in this regard. but continues to require

EPA consideration of the L-_ue.

43. Comment-'ome Information 36 buslnE- 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 treats this subject, and diferentlates between Information

which would be routinely discoverable and

that which would be discoverable only upon,

a chowing of 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 ineliCiblo for 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 harm to a busi- "control offices" which have exclusive re- emission from a source of one or more other

ness. But the cumulative qffect of disclosures 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 of this

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 of receipt 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," the proposed 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. Duly authorized 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 of raw material 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 to requests 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, has been 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 EPA employees. 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 be made available for pub- only for research purposes once the In2.211 of the regulation as promulgated 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 tion 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 of business 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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applicable 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 be made 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 to which

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

the regulation 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 of the 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 of the ation In ways that

have nothing to do with the purposes of the

Clean Air Act.

-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 to be used in

_Informal proceedings, and the regulation has

been modified accordingly. Separate procedures have also been established in the regulation 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 the proceeding, to argue against disclosure.

Response-The regulation has been modlRULES AND REGULATIONS

fled to make clear that a business has this

right84. 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 public Interest 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 Ail preduce 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 that should

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 ths regard are, It is felt, best left 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 the proceedings 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 law judge 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 may refrain from

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 the production of which EPA may lReally

compel.) The Administrator does not belleve

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 of entry onto cer- tain private premL . But In section 114(c),

203(b) and 307(a) of the Clean Air Act, and

=etIon 393(b) of the I PCA, It appears 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 the legislative history of the PWPCA concerning rights of en- try was based on a reference to section 208 (a)

of the Clean Air Act, where the right of en- 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

Its prior 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 the comment was adopted, businesses

could seriously hinder EPA efforts simply by

refusing to consent to disclosure.

71. Commen-t-Information should be disclosed to a contractor under proposed 1 2.301

(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

been modified accordingly.

72. Comment-Informatlon should be disclosed to a contractor under proposed f 2301

(h) only if affected businesses are rezsonably

protected by the arrangements between EPA

and the contractor.

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- est the contractor may have.

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 coneetlon with 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 apply to the Information.

Response - The Administrator disagrees

'with the comment. Many of the statutes for

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HeinOnline -- 41 Fed. Reg. 36923 1976
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

1 2.302(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 with respect to proposed § 2.301(g).

Response-See Responses to Comments 62

through 68.

77. Comment-Various commenters raised

the same points with respect to release 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, 6 2.307 (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 9 2.307(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 the effective date of the rule, rather than only

made only on a case-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 If the business; first had been warned rpoelfl-

§ 2.307. This action has been' taken because, cally that It must assert Its claim at the time

under P.L. 94-140, (November 28, 1975), 89 of submission of the Information,

Stat. 751, the Administrator may not promul- (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 is pending and EPA must 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 be made not later than one working day

stantive criteria have been deleted. (On after the inquiry is made. The Administrator

March 5, 1976, the General Counsel Issued has determined that this change will not iman Interpretative determination concerning pose undue burdens on businesses, 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

-Ia addition to the changes to the 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

been deleted 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 is pending.

office," and "working day" have been added

to § 2.201. (10) Section 2.204(o) of the rule has boon

(3) Section 2.202 has been modified to em- modified to conform the list of topics to be

phasize the need for alertness to the possibl- -addressed by a business In Its comments

ity that different types of information 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 simplified by 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 of information is not entitled to con- (12) Section 2.205(a) has been modified to

fidential treatment. The treatment of such provide a timetable for Issuance of a Pnlual

information Is covered 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 that two or more U.S.C. 552.

businesses may have an Interest In preserv- (13) Section 2.205 (h) has been 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

of each 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 changes have boon made

acknowledge that a business-may desire 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 of the 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 If waiver of the claim is th be 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