Document nN3J7G603GR4oDaLK0oBee0Q8

t ^ fai ::: GARf - BAi5l ^yn, m FO'.f A J A V -A A \ L S -f A A, Q . n - v 11 L L - . ^ O', a m a r, Z CA'.sOf. anTRE: f 3 - k 1 n C - 'i S - 3 <- - E " 3 _ C ^ - C^AR.CS a PJ-^2'A 3 w e L' E E N M ^ I a 3 D N s * *NOT A ''^d"Or D,c SAP A OrriCE3 Beveridge. Fairbanks & Diamond O, e Far-j*c-,t Square SoujTaWashinGTON.D C 20006 TElEA-ONE ( ? c 2 'l <5 ; " - 7 3 0 0 November 12, 1976 CAR OF Jerome Heckman, Esquire Keller & Heckman 1150 17th Street, N.W. Suite 1000 Washington, DC 20036 Dear Jerry: As you may recall, in June 1975, we distributed to the members of SPI a memorandum on the "Policy and Procedures of the Environmental Protection Agency in Implementing the Freedom of Information Act." The latter half of the memo randum discussed the regulations proposed by EPA to protect the confidentiality of business information, consistent with the Agency's obligations under the Freedom of Information Act. On September 1, 1976, EPA promulgated its final regulations governing requests for business information, with an effective date of October 1. (41 Fed.Reg. 36902). The significance of these final regulations became a matter of discussion at the meeting of the SPI VCM/PVC Technical Committee in Washington on October 26 and, therefore, we thought it would be useful to update our original memorandum. No material changes have been made in the regulations as discussed in our earlier memorandum, but the final regulations have been simplified and clarified to some degree. For example: (1) The draft regulations imposed upon a business the responsibility of appropriately marking information it submits to EPA for which it desires to make a claim of confidentiality. Failure to do so would have re sulted in an automatic waiver of the claim. Under the final regulations, a business still has the responsibility to appropriately mark information submitted to EPA. However, Section 2.203 has been revised to require the Agency to attach a form to any request it makes for information which may be confidential, which form will advise the business of this responsibility. Also, a claim of confidentiality may still be made after infor mation has been submitted to the EPA, but the Agency makes no promise that the information will be protected. COLORITE 006108 Beveridge. Fairbanks <5. Diamond Jerome Heckman, Esquire November 12, 1976 .... 2 (2) The draft reg' ations provided that EPA could make a "class" determination with regard to certain types of information being collected by it from a number of businesses which, because of the common characteris tics of the information, would necessarily result in identical treatment. A finding by the Agency that information falling within a class is not confidential would have been a final determination as to all companies for the purposes of these regulations. This is no longer true. As promulgated, Section 2.206(d) provides that the class determinations are simply informative, and if a request for information covered by the deter mination is made, a concerned business will still be provided an opportunity to object to disclosure as if no such determination had been made. (3) The requirement in the draft regulations that businesses satisfy EPA that there is "substantial" like lihood that disclosure of information would substantially harm the competitive position of the business, or lessen the availability of information to EPA, has been amended. Businesses now need only show that there is a likelihood, not a "substantial" likelihood, of such a result. This change was made to reflect court decisions in this area. A copy of the regulations is enclosed. Of particular interest is Appendix A thereto, where the most relevant comments received by EPA on the proposed regulations, and the Agency's response to them, are set forth. The responses are especially helpful in understanding the attitude which EPA will take in determining whether information submitted to it ought to be protected under the Freedom of Information Act. If you have any questions, please advise. Sincerely yours, HH/ap Enclosure cc: John R. Lawrence Harold Himmelman COLORITE 006109 WEDNESDAY, SEPTEMBER 1, 1976 PART IV: ENVIRONMENTAL PROTECTION AGENCY REQUESTS FOR INFORMATION Confidentiality of Business Information COLORITE 006110 RULES AND REGULATIONS Title 40--Protection oi Environment [FRL CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY Requests for information; Confidentiality of Business Information On May 20, 1075, the Environmental Protection Agency iT.PA) roused to be published ir. the !.' i. i ' -,m j doc ument (40 171319871 I.ropc ;; to emend 40 CFR Part 2 by adding a new Bubpart B entitled "Confidentiality of Business Inlonnation." Certain corrections and revisions to that document were mace by a document published In the Federal HecistiR on Jvdv 5, 1575 ' 10 FT 77014), Interested persons urre ui'.tu unci July 22, 1975, to submit written comments, suggestions, or objections. Some 60 com ments were received, c om:i:ruters in cluded trade associations, business firms, environmental organisations, state agen cies, and others. Full and careful con sideration 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 by comments 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 m the Mav 20 and July 9, 1975, documents. A summary of the significant comments, the Administra tor'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 dis cussed many of the L-sues presented by this rule-making proceeding. The purpose of Subpart B is to estab lish 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 confi dentiality The regulation represents FPA's attempt to devl.-e a procedure which protects the interests of the busi nesses winch 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 mis sions. As stated more fully In the Pre amble 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 bthine-scs On the other hand, mem bers of tlie public have asserted that understanding and criticising Govern ment proposals or decisions Ls difficult or impossible if the business data upon which the Government relied are un available for scrutiny. EPA under stands the Importance of both these ar guments and. In addition, Ls aware that the continuing flow of information from businesses needed for sound EPA deel- stonmaking nicy be effected adversely If bu ,lne. as do not feel that EPA gives full and fair consideration to their con fidentiality claims. Subpart B, as promulgated below, estabh-hes procedures and substantive rules designed to: Limit the likelihood of inadvertent ui.-clcnure of confidential busme'-s information: aiTord businesses a fair rp'-ortuni'.y coin to insert a confi dent,al ry claim a;..- to vubuar.tiate 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 bu inert information under the Freedom of Inna .-nation Act, 5 U.SC 552: and furm-h guidance to those EPA officers and employees who must deal with con fidentiality claims and lequerts for in formation whue carrying out other im portant Agency business. Subpart B consists of a series of gencialiy applicable rules (55 2,201-2.213) and certain special rules which modify the general rules wnen necessary to im plement several statutes under which EPA operates and winch 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 de signed to more clearly set forth procedural rules which were stated In the earlier version of the sub part. Former 5 2.107 has been redesig nated as 2.106. and a new 5 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 with hold exempt documents should be based on a finding that the public interest would not be served by 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 lias 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 5 2,121. which recited a statutory re quirement concerning an nnnual report to Congress, has been deleted as unnec essary. Because the changes to Subpart A consist of rules of agency organization, procedure, or practice, and because pub lic comment on these changes ls unnec essary and would not serve the public in terest. 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 1 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. Tp.aix, Administrator. Chapter I of 40 CFR is amended as follows: 1, Part 2 is amended by revising Subpart A and by adding a new Subp,,rt B, so that the Part reads as follows: PART 2--PUBLIC INFORMATION Subpart A--Requests fur Information Sec. 2 100 Definitions 2.101 Policy on dlrclc^ure of EPA re c.-cU 2.102 [Reserved] 2.103 Partial disclosure of records. 2.104 Requests to which this subpart ap plies. 2 105 Existing records, 2,106 Where requests for agency records shall be filed, 2 107 Misdirected written requests, oral re quests. 2.108 Form a request. 2.109 Requests which do not reasonably describe records sought. 2-110 Responsibilities of Freedom of Infor mation Officers. 2.111 Action by office responsible for re sponding to request. 2.112 Time allowed for issuance of initial * determination. 2.113 Initial dentals 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.H7 Time allowed for Issuance of appeal determination. 2.118 Exemption categories. 2.119 DiscretionAry release of e^mpt documents. 2.120 Fees; payment; waiver 2 121-2.200 [Reserved], Subpart fi--Confidentiality o4 Business Information 2.201 2 202 2 203 2.204 2.205 2.206 2.207 2 208 2,209 2 210 Definitions. Applicability of subpart; priority where provisions conflict; records containing more than one kind of information. Notice to be Included In EPA requests, demands, and forms; method of asserting business confidentiality claim; effect of failure to assert claim at time of submission, Initial action by EPA office Final confidentiality de'ermln fc:ion by EPA legal office. Advance confidentiality determina tions. Class determinations, Substantive criteria for u = e In con fidentiality determinations Disclosure in special circunvtar.rcs Nondisclosure for reasons o'hcr than business confidentiality or -Ahere disclosure la prohibited by other st&tute, 2211 2.212 3 213 Safeguarding of buMnc-s Informs*ion. penalty for wrongful disclosure. Establishment of control offices for categories of business information Designation by business of addressee for notices and inquiries. FEDERAL REGISTER, VOL 41, NO. 171---WEDNESDAY, SEPTEMBER t, 1976 COLORITE 006111 RULES AND REGULATIONS 3690.1 Sec. 22214-2-300 (Reserved 1. 2.301 Special roles governing certain In formation ohtolncd under the Clean Air Act. 2 302 Special rule* governing certain In formation obtained under the Fededal Water Pollution Control Act. 2 303 Special roles governing certain In formation obtained under the Noise Control Act Of 1922. 2.304 Special rule4; (ovemlng certain In formation obtained under the Safe Drinking Water Act 2.305 I Reserved I. 2 306 I Reserved > 2.307 Special rules governing certain information obtained under the Federal Insecticide, Fungicide, and Rodentlclde Act2.308 Special rules governing certain infor mation obtained under the Federal Food. Drug, Rnd Cosmetic Act 2 309 Special rules governing certain Infor mation obtained under the Marine Protection, Research and Sanctuar ies Act of 1972. AuTHOItrrv 5 DSC 301, 552, 553. sees. 11 4, 208, 301, and 307 of the Clean Air Att, as amended, 42 U S C 1857C-9, 1857f~6, 18;i7g, 1857h-5; sera. 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; secar 1445 and 1450 of the Safe Drink ing Water Act, 42 UJS.C. 300J^t. 300J-9: secs. 10, 12, and 25 of the Federal Insecticide, Fungicide and Rcdenticlde Act, as amended, 7 USC, 136h, 13GJ, 13Cv; 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 Definition*. For the purposes of this partfa) "EPA" means the United States Environmental Protection Agency, (b) "EPA record" or, simply, "record" means and document, writing, photo graph. 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 al leged 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 must be translated or deciphered by machine In order to be in telligible to humans. Hie term Includes documents and the like which were created or acquired by EPA, its predeces sors, 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 m h:s or her purely per sonal capacity. Nor does the term in clude materials published by non-Fedcral organizations winch are readily available to the public, such as books, journals, and periodicals available through reference libraries, even if such materials are m EPA's possession. (c) "Request" means a request to in spect 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 <Rclo*ure of F.PA rec ord*. (aj EPA will make the fullest possible disclosure of records to the public, con sistent with the rights of individuals to privacy, the rights of persons in busi ness information entitled to confiden tial treatment, and the need for EPA to promote frank internal policy delibera tions and to pursue its official activities without undue disruption. (b> All EPA records shall be available 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] 2.103 Partial di*elo*ure of record*. If a requested record contains both exempt and nonexempt material, the nonexempt material shall be disclosed, after the exempt material has been de leted in accordance with 2.119. 2.101 Requests to which this subpart applies. lai-This subpart applies to any writ ten 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 5 2.112(b) regarding the treatment of re quests which are directed by the re questor to offices other than those listed in S 2.108. (b) Any written request to EPA for existing records prepared by EPA for routine public distribution, e.g., pam phlets, copies of speeches, press releases, and educational materials, 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, 2.103 Existing records. (a) The Freedom of Information Act, 5 U S.C. 552, does not require the crea tion of new records m 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 dis closure of existing records. (b) All existing EPA records are sub ject to routine destruction according to standard record retention schedules. 2.100 Where reque-l* for agency rec ords shall he tiled. (a) A request for records may be filed with the EPA Freedom of Information Officer, A-101. 401 M Street, SW,, Wash ington, D C. 20400. (b) Should tiie requestor have reason to believe that the records sought may be located In an EPA regional office, he may transmit his request to the appropriate regional Freedom of Information Office indicated below: (1) Region I <Massachusetts. Con necticut. Maine, New Hamp.-iure. Rnode Island, Vermont': U.S. Environmental Protect!,,r. Aor;rv, Free dom of Information Officer. Room. 22.3 John F Kenr.edv Federal Bffi'd.r.g, Bc-'o-Mills 02203 (21 Region II (New Jersey, New Yoik. Puerto Rico, Virgin Islands > , US Environmental Protection Acencv. f.tedom of Information Officer R.*c;n 1CK 2 ; Federal Flaza, New York, NY 133,07. (3) Region III (Delaware, Marvlar.d, Pennsylvania, Virginia, Wes: Virgin.a, District of Columbia1 1 US Environ mental Fio'ert.on Ac::..;,, rre- - dom of Information Offi'-e.-. c C\.' mg, Sixth and Walnut streets. PhilfiJel- phla, PA 19106, (4) Region IV (.Alabama Florid.1 Georgia, Kentucky, Missis;;;:pi, Nor.n Carolina, South Carolina, Tennessee1 . U.S. Fnvlronmental Protection A: once Tree, dom of Information Officer, S:;:T* 2.'4 :42f Peachtree Street, NE , Atlanta, GA 333_., (5) Region V (Illinois. Indiana, Michi gan. Minnesota, Ohio, Wisconsin i 1 U.S. Environmental Protection Aeer.ov Free dom of Information Officer, 220 Detcbor.. Street, Chicago, IL 60004. (6) Region VI (Arkansas. Louisiana. New Mexico. Oklahoma, Texas1 : US Environmental Protection Arer.cv, Ite-dom of Information Office- Sv.'c- 11,' Patterson Street, Dallas, TX 732,1, (7) Region VII (Iowa, Kansas, Mis souri, Nebraska) : U.S Environmental Protection A-encv, Free dom of Information Officer, 1725 BMt.mcre Avenue, Kansas City, MO 64193 (8) Region VEH (Colorado, Montana, North Dakota. South Da.iota, Utah Wyoming) : US. Environmental Protection Acerrv Free dom of Information Officer. St;."e 99" ;ccj Lincoln Street, Denver, CO S.ajJ (9) Region IX (Arizona, California. Hawaii, Nevada, American Samoa. Guam, Trust Territory of Pacific Islands. Wake Island) : U.S. Environmental Pro'ectlon A _otic , Fr--dom of Information Off.cer, I( 3 Ca::f;r:.' , Street, San Francisco, CA 94111, (10) Region X (AlaM-ia. Idaho. Oregon. Washington) ; US Environmental Pro'err.-". A et.ct Free, dom of Information Officer 12 's.v.i r.ue, Seattle, WA 93101 2.107 Mistlireclod urhlin riqn.'t-: oral request*. (a) EPA cannot assure thu a timely or satisfactory response unuer tins, suopart will be given to ivrffin requests that are addressed to EPA t u,:,v- cm.-.-rs. or employees other than the Freedom cf Information Officers hated in ' 2,106, Any EPA officer or employee who receives a written request for inspection or dis closure of EPA records shall promptly FEDERAL REGISTER, VOL. 41, NO, 171--WEDNESDAY, SEPTEMBER 1, 1976 COLORITE 006112 .'16901 RULES AND REGULATIONS forward a copy of the request to the ap propriate Freedom of Information Of ficer, by the fastest practicable means, and shall. If appropriate, commence ac tion under 5 2.111. fb) While EPA officers and employees will attempt in good faith to comply with requests for inspection or disclosure of EPA records made orally, by telephone or otherwise, such oral requests are not required to be processed In accordance with this Subpart. 2.103 Form of rcquesl, A request shall be made In writing, shall reasonably describe the records sought in a way that will permit their Identification and location, and should be addressed to one of the addresses set forth in 5 2 106. but otherwise need not be In any particular form. 2.109 Request* which do not rcin-onably describe records sought. (al If the description of the records sought In the request is not sufficient to allow EPA to identify and locate the re quested records, the EPA office taking action under 5 2.111 will notify the re questor (by telephone when practicable' that the request cannot be further proc essed until additional Information is furnished. (b) EPA will make every reasonable effort to assist In the Identification and description of records sought and to as sist the requestor in formulating his re quest. If a request Is described in general terms (e.g., all records having to do with a certain area), the EPA office taking ac tion under 5 2.111 may communicate with the requestor (by telephone when practicable) with a view toward reduc ing the administrative burden of process ing a broad request and minimizing the fees payable by the requestor. Such at tempts will not be used as a means to discourage requests, but rather as a means to help Identify with more specif icity the records actually sought. 2-110 Responsibilities of I'reedom of Information Officers. (a) Upon receipt of a written request, the Freedom of Information Officer (whether at EPA Headquarters or at an EPA region) shall mark the request with the date of receipt, and shall attach to the request a control slip indicating the date of receipt, the date by which re sponse is due, a unique Request Identifi cation Number, and other pertinent ad ministrative information. The request and control slip shall then be forwarded Immediately to the EPA office believed to be responsible for maintaining the records requested. (If the records re quested are believed to be located at two or more EPA offices, each such office shall be furnished a copy of the request and control slip, with instructions concerning which office shall serve as the lead office for coordinating the response.) The Freedom of Information Officer shall re tain a file copy of the request and control slip, and shall monitor the handling of the request to ensure a timely response. <b> The Freedom of Information Officer shall maintain a file concerning each request received, which shall con tain a copy of the request. Initial and appeal determinations, and other perti nent correspondence and records. (c) The Freedom of Information officer shall collect and maintain the in formation necessary to compile the re ports required by 5 U.S.C. 552(d). 2.111 Aciion by office responsible for responding lo request. () Whenever an EPA office becomes aware that It Is responsible for respond ing to a request, the office shall: (1) Take action under 5 2.109, If re quired, to obtain a better description of the records requested; (2) Locate the records as promptly as possible, or determine that the records are not known to exist, or that they are located at another EPA office, or that they are located at another Federal agency and not possessed by EPA; (3) When appropriate, take action under 5 2.120(c) to obtain payment or assurance of payment; (4' If any located records contain business Information, as defined In 5 2.201 (c), comply with subpart B of this part; (5) Determine which of the requested records legally must be withheld, and why (see 5 2.119(b)); () Of the requested records which are exempt from mandatory disclosure but which legally may be disclosed (see 5 2.119(a)). determine which records will be withheld, and why; (7) Issue an Initial determination within the allowed period (see 5 2.112), specifving (Individually or by category) which records will be disclosed and which will be withheld, and signed by a person authorized to Issue the determination under 5 2 113(b). Denials of requests shall comply with 5 2 113; and (8) Fumhh the appropriate Freedom of Information Officer a copy of the de termination. If the determination denied a request for one or more existing, located records, the responding office shall also furnish the Freedom of Information Of ficer the name, address, and telephone number of the EPA employee(s) having custody of the records, and shall main tain the records In a manner permitting their prompt forwarding to the General Counsel upon request If an appeal from the Initial denial Is filed. See also 5 2.204(f). (b> If It appears that some or all of the requested records are not In the pos session of the EPA office which has been assigned responsibility for responding to the request but may be In the possession of some other EPA office, the Freedom of Information officer who Is monitoring the request shall be so informed Immediately. 2.112 Time allowed for i-Miance of iniliul determination. (a) Except as otherwise provided In this section, not later than the tenth working day after the date of receipt by a Freedom of Information Office of a request for records, the EPA office respon sible for responding to the request shall Issue a WTitten determination to the re questor 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 o' Information Office. (c) There shall be excluded from the period of 10 working days (or any exten sion thereof) any time which elapses be tween the date that a requestor Is noti fied by EPA under 5 2.109 that his request does not reasonably identify the records sought, and the date that the requestor furnishes a reasonable identification, (d) There shall be excluded from the period of 10 working days ior any exten sion thereof) any time which elapses be tween the date that a requestor is noti fied by EPA under S 2.120 that prepay ment of fees Is required, and the date that the requestor pays (or makes suit able arrangements to pay) such charges. (el The EPA office taking action under 5 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 work ing days, by furnishing written notice to the requestor within the basic 10-day period stating the reasons for such exten sion and the date by which the office expects to be able to Issue a determina tion. 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 circum stances 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. col lect, and appropriately examine a volu minous 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 prac ticable speed, with another agency hav ing a substantial Interest in the deter mination of the request or among two or more components of EPA (f) Failure of EPA to issue a deter mination within the 10-day period or any authorized extension shall constipate final agency action which authorizes the re questor to commence an action In an appropriate Federal district court to obtain the records. 2.113 Initial denial* of rr(|ue-ts. (a) An Initial denial of a request may be Issued only for the following reasons: (1) The record requested Is not known to exist; (2) The record Is not in EPA's posses sion; (3) The record has been published in the Federal Register 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; FEDERAL REGISTER, VOL. 41, NO. 17)--WEDNESDAY, SEPTEM8ER 1, 1976 COLORITE 006113 RULES AND REGULATIONS now: C5) The record is exempt from man datory disclosure under 5 U.SC. 552<b) find EPA has decided that the public interest would not be served by dis closure: (6) Section 2 204(d) (1) requires ini tial 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 isee subsection (h) 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 redelcgated; pro vided, that the authority to issue initial denials of requests for existing, located records (Other than denials based solely on 5 2.204(d)(1)) may be redelegated only to persons occupying positions not lower than division director or equiva lent. (c) [Reserved] (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 with held (individually, or. If the denial covers a large number of similar records, by de scribed category), and shall state the basis for denial of each record or cate gory of records being withheld. (e) If the issuance of the determina tion 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 determi nation letter. (f) 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 5 2.106(a) within 30 days of receipt of the deter mination. (g) A determination shall be deemed Issued on the date the determination let ter is placed In EPA mailing channels for first class mailing to the requestor, de livered to the U.S. Postal Sendee for mailing, or personally delivered to the requestor, whichever date first occurs. ih) 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 it 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, 2.111 Appeal* from initial denials; milliner of making. <ai 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 20 calendar days after the date the requestor received the initial determination on the request. An un timely appeal may be treated cither 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 (REN), the date of the initial determination, and the name and ad dress of the person who issued the initial denial. The eppeal letter shall also indi cate which of the records to which access was denied are the subjects of the appeal. 2.115 Appeal drlerminalion; 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 exist ing, 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 dis closed 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 Office 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 dis closure, the record shall be disclosed un less the Administrator (upon a review of the matter requested by the appropriate Assistant Administrator, Regional Ad ministrator, or the Director of a Head quarters Staff Office) determines that the public interest would not be served by disclosure, in which case the General Counsel shall issue a determination deny ing 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 denyins appeal. A determination denying an appeal from an initial denial shall be m writing, shall state which of the exemptions In 5 U.S.C. 552ib> 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 fur ther 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, punuant to 5 U.S C. 552'ai(41. 2,1 17 Time allowed for <- -nance of ap peal determination. (a) Except ns otherwise provided in tins section, not later man tire twemum working day after the date of receipt :;v the Freedom of Information Officer at EPA Headquarters of an anneal from an initial denial of a reque-t f ir records, the General Counsel shall issue a wr.tten determination stating which of the requested records (as to vouch an ap peal was made) shall be disclosed and which shall not be disclosed <b) The period of 20 working dr. vs shall be measured from the date an repeal i= first received by the Ere''d: m of Ir.tcrmation Officer at EPA Headquarters ex cept as other provided m 2 205(a). (c) The Office of General Cow. -.1 after notifying the Freedom of Informa tion Officer at EPA Headquarters. m?v extend the basic 20-day period estab lished under subsection (a) of thus sechon_by a period not to exceed 10 addi tional working days, by furnishing wrrten notice to the requestor within the basic 20-da.v 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 onlv when absolutelv necessary, only for the period required, and only when one or more of the follow ing unusual circumstances require the extension: (1) There is a need to search for an:', collect the records from field facilities or other establishments that are ,-eparate from the office processing the appeal, (2) There Is a need to search for, col lect, and appropriately examine a voluminous amount of separate and dis tinct records which are demanded in a single request; or (3) There is a need for consultation. which shall be conducted with all prac ticable speed, with another agency hav ing a substantial interest m the deter mination of the request or among two or more components of EPA. (d) No extension of the 20-dav period shall be issued under subsection (C1 of this section which would cause the total of all such extensions and of any exten sions issued under 5 2.112(e) to exceed 10 working days. 2.118 Exemption categories. (a) 5 U.S.C. 552(b> establishes rune exclusive categories of matters winch are exempt from the mandatory disciocuie requirements of 5 USC 5521 a (. No re quest under 5 U.S.C, 552 for an eMstmr. located record in EPA's possession snuli be denied by any EPA office or emplo'-re unless the record con nuns >or us dis closure would reveal' matters that are-- (1) Specifically authorized under cri teria established by an Executive Order to be kept secret in the interest of ra tional defense or foreign policy and are in fact properlv classified pursuant to such Executive Order; (2) Related solely to the internal per sonnel rules and practices of an agenev: FEDERAL REGISTER, VOL 41, NO. 171--WEDNESDAY, SEPTEMBER T, 1974 COLORITE 006114 RULES AND REGULATIONS Specifically exempted from dhclosuie by statute, i4) Trade secrets and commercial or financial Information obtained from a person and privileged or confidential ' see Subpart B) : (51 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: ib' deprive a person of a right to a fair tnal or an im partial adjudication: <e> constitute an unwarranted invasion of peisonal pri vacy; <d > disclose the identity of a con fidential source and, in the case of a record compiled by a ciimmal law en forcement authority m 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 investiga tive techniques and procedures; or (f> endanger the life or physical safety oi law enforcement personnel: (8> Contained in or related to exami nation, operating, or condition reports prepared by, on behalf of. or for the use of an agency responsible for the regu lation or supervision of financial Insti tutions; or (9) Geological and geophysical infor mation 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. i a) An EPA office may. in its discre tion, release requested records despite the applicability of one or more of the exemptions listed in 5 2.118 (a)(2), (a> (5>, or (a)(7). Disclosure of such rec ords is encouraged if no important pur pose 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 5 2.118 (a)(1), (a) (3), (a)(4), (a)(6), (a)(8), or (a)(9) ap plies to the record, except when ordered to do so by a Federal court or in ex ceptional circumstances under appro priate restrictions with the approval of the Office of General Counsel or a Re gional Counsel. -.120 Fee*; payment; kalnr. (a) Fee schedule. Fees will be charged requestors for searching for and repro ducing requested records, in accordance with the following schedule: Record search time (EPA employees), *2 50 p*r halt hour. Computer programming tun# (KPA *nployees), $4 50 per half hour. Reproduction of documents ip.tper c'p'. of paper ordinal ), $0 2Q per pau:e. Ocher cost* of ^earchin^ for or duplU'Jiiug records (including such item.sa* computer system time; contractor computer pro gramming time: reproduction of photo-* Lfrapha. microforms, or magnetic tape: computer printouts, and transportation ot record*), actual direct ccsfc to EPA. No charge shall be made-- < 11 For examination and evaluation of records which have been located and which are known to be among those re quested: 12) For the cost of preparing or re viewing letters of response to a request or appeal; 13) If the total fee m connection with a request Is less than S10.00, or if the costs of collecting the fee would other wise exceed the amount of the fee: (4i For search time or computer progi ammifig time by EPA employees, if less than one hall hour of such time was re quired in connection with the request; (51 For responding to a request for one copy of the official personnel record of the requestor; (6) For furnishing records requested by either House of Congress, or by a duly authorized committee or subcommittee of Congress, unless the records are re quested for the benefit of an individual Member of Congress or for a con stituent; (7) For furnishing records requested by and for the official use of other Fed eral 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 pay ments 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 Iden tification Numbers>) to the appropriate EPA Freedom of Information Officer. (c) Prepayment or assurance of pay ment. If an EPA office determines or esti mates that the unpaid fees attributable to one or more requests by the same re questor exceed or will exceed $25,00, that office need not search for, duplicate or disclose records in response to any re quest by that, requestor until the re questor 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 requestor (by telephone, If practicable) of the need to make pa\ ment or arrange ments to pay. See also 5 2.112(d) (d) Reduction or umtver of fee. The fee chargeable under this section may be re duced or waived by EPA if the public interest would be served thereby. Reduc tion or waiver of fees shall be considered (but need not necessarily be granted) in connection with each request from a rep resentative of the press or other commu nications medium, or from a public In terest group. A request for reduction or waiver of fees shall be addressed to the appropriate Freedom of Information Of ficer or to the EPA office which is re sponding to the request for iccorcis. The latter office shall initially determine whether the fee shall be reduced or waived, and shall so inform the requeue;'. The initial determination may be ap pealed by letter addressed to the appro priate Freedom of Information 0:7. er. The Director of the EPA Office of Public Affairs, or the Director's designee an EPA regional office, shall decide such ap peals. 2.121- 2.200 lllo-erw'il] Subpart B--Confidentiality of Business Information 2.201 Definition-, For the purposes of this subpait (a) "person" means an mduidu.il. partnership, corporation, association, or other public or private organization or legal entity, including Federal, Stare oi local governmental bodies and agencies and their employees, (b) "Business" means any person en gaged in a business, trade, emplovment. calling or profession, whether or not ail or any part of the net earnings derived from such engagement by such person inure (or may lawfully Inurei to the ben efit of any private shareholder or in dividual. ic) "Business information" (sometimes referred to simply as "information"1 means any information which pertains to the interests of any business, which v. adeveloped or acquired by that bu^mc--. and (except where the context otherw ise requires) w-hich Is possessed by EPA m recorded form. (d) "Affected business" means, with reference to an item of business informa tion, a businesswhich has asserted rand not waived or withdrawn) a business confidentiality claim covering the in formation, 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 confidential ity" include the concept of trade secret ; and other related legal concepts winch give (or may give) a business the right to preserve the confidentiality of business information and to limit its use or dis closure by others in order that the busi ness may obtain or retain business ad vantages it derives from its rights m the information. The definition is meant to encompass any concept which authorizes a Federal agency to withhold business in formation under 5 U S.C, 552'b M4. as well as any concept which requires EPA to withhold information from the pub lic for the benefit of a business under 18 U.S.C. 1905 or any of the various statutes cited in 5 2.301 through 5 2 309. (f) [Reserved] (g) Information which is `.usifiKe to the public" is information m EPA's possession which EPA will furnL-h to any member of the public upon reque.-t and which EPA may make public, release or otherwise make available to any person FtD*Al REGISTER, VOL 41, NO. 171--WEDNESDAY. SEPTEMBER 1. 1976 COLORITE 006115 RULES AMD REGULATIONS 3C)<J7 whether or r.ot ;; .'-v, ' Utc. requested. (h) "Eu-sinc1".", r.:: 3di:y claim" (or, simply, "claim"1 means a cl -Pm or al legation that bui In ess Information Is entitled to confident.al treatment for reasons of busmen confidentiality, or a request for a determination that such In formation Is entitled to such treatment. (1) "Voluntarily submitted Informa tion" means bp-.:.:.-, inform v ion m EPA's possession-- (1) The submission rf t Inch EPA had no statutory or con'ractual authority to require; and (2) The submission of which was not prescribed by statute or regulation as a condition of obtaining :cti benefit (or avoiding seme disacvan:,.' e1 under a regulatory program. of general applica bility, Including such regulatory pro grams as permit, lirer.'ir? red-'trat.nn, 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 dish. (It) [Reserved] (l) "Administrator," "Regional Ad ministrator," "General Counsel," "Re gional Counsel," and "Freedom of In formation Officer" mean the EPA officers or employees occupying the positions so titled. (m) "EPA office" means any organi sational element of EPA, at any level or location. (The trims ' EPA, office" and "EPA legal office" are used m this sub part for the sake of brevity and ease of reference. When this subpart requires that an action be taken by an "EPA of fice" or by an EPA legal office," it is the responsibility of the officer or employee In charge of that office to take the ac tion or ensure that it Is 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 (m) of tins 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 rabpart; priorilv where provision* conflict; record* containing more than one kind of in formation. (a) Sections 2.201 through 2.213 es tablish basic rules governing business confidentiality claims, the handling by EPA of business information which is or may be entitled to confidential treat ment. and determinations by EPA of whether information is entitled to con fidential treatment for reasons of busi ness confidentiality. (b) Various statutes (other than 5 U.S.C. 552) under which EPA operates contain special provisions concerning the t",' v.. l: tnfidcntir.l treat ment of inform-.'. n gathered under such ttu-*1' sections 2.301 through 2.3C3 prc--'.'.ce ;; c ml rules for treat ment cf cerium catccor.es of business information obtained under the various statutory prov :r:( nx. Paragraph (b> of each of those stct.cn- should be con- suited to determine v hethcr any of those sections apnl.es to the particular infor mation m quC't.on <c) The basic in." of s; 2.201 through 2.213 govern except to the extent that they are modified or supplanted by the special rules of 5 1 2.301 through 2.309. In the event of a conflict between the pro visions 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 contaming special rules apply to the partic ular information In question, and the applicable sections prescribe conflicting special rules for the treatment of the in formation, the rule which provides greater or wider availability to the pub lic 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 apply ing the provisions of this subpart, it will often be necessary to separate the indi vidual items of information into two or more categories, and to afford different treatment to the information in each such category. The need for differentia tion 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 con fidential 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 wheth er 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 con fidential treatment or information which concerns an individual solely In his per sonal, as opposed to business, capacity. 2.203 Notice to lie included in EP V rcqucita, demand?, and forms; method of asserting Looneu confidentiality claim ; effect of failure to a*crt claim at lime of uLmi??ion. (a) S'otice to be included in certain requests and demands lor 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 ,-ubpart, or whenever an EPA office pre scribes a form for use by businesses ui furnishing such information, the request, 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 informa tion, in the manner described by para graph (b) of this section, and that in formation 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 ac companies the information when it is re ceived by EPA, it may be mace available to the public by EPA without further no tice to the business; and (3) Furnishes a citation of the loca tion of this subpart in the Code of Fed eral Regulations and the Frrkau. RscISTER. (b) Method and time of assert me btn.ness confidentiality claim. A business which is submitting information to EPA may assert a business confidentiality claim covering the information by plac ing on (or attaching to) the information, at the time it is submitted to CPA, a cover sheet, stamped or tvpcd legend, or other suitable form of notice employing language such as "trade secret," "pro prietary," or "company confidential " Allegedly confidential portions of other wise non-confidentia] 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 treat ment 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 in formation 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 EFA-prescribed form) which contained the sub stance of the notice required by para graph (a) of this section, and if no busi ness confidentiality claim accompanied the information when it was received by EPA, the inquiry to the business nor mally required by 2.204(c) (2) need not be made. If a claim covering Uie infor mation is received after the informa tion itself Is received. EPA will make such efforts as are administratively practica ble to associate the late claim with copies of the previously-submitted Information in EPA files (see 5 2 204(c)(1)). How ever, 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 Initial action by EPA office. (a) Situations requiring action. This section prescribes procedures to be used by EPA offices in making Initial deter minations of whether business Informa tion is entitled to confidential treatment for reasons of business confidentiality. FEDERAL REGISTER, VOl. 41, NO. 171--WEDNESDAY, SEPTEMBER 1, 1974 COLORITE 006116 RULES AND REGULATIONS Action shall be taken under tins --cci: :: dc-effi es the cv-dcncc of a:u. ' ..:e-s fidential treatment under th.s nut whenever an EPA office: which, although it has not i wted a and 5 USC. 552ib><4>, that further tii learns that it is responsible for re claim, might bo expected to L-- ,ert a inquiry by EPA pursuant to this . nhpait sponding to a request under 5 U.S C. 5 52 Chum if it know EPA propo-cd to d. -base is required before a final (li-tc.ctiu.at.jn for the release of business Information: the information, the EPA office .'hall con on the request can be Issued, that the in such a case, the office shall Issue an tact a re5po:.c,b`.e official of each such person's request is therefore initially de initial determination within the period bu;,ine.-s to learn whether the baMne-s nied, and that after fuither ii.qu.ry a specified in 5 2,112, asserts a cl Mm cohering the mfoimation. final determination will be b.-ued i\ an (n) desires to determine whether busi However, no such inquiry need be made EPA legal office, and ness information m its possession is en to auy bit1 mc.-c-- Oil) Refer the matter to the appro- titled to confidential tieaimem, even i A, \ inch ft'.- ,i to assert a claim cov pi iat EPA legal office, furnishing tue though no request for release of (he in ering the inform.,t:on when ic-p-judlng information icquired bj parng:..p:i O' ui formation has been iccened; or to an EPA request or demand, or supply this section. (in) determines that it is likely that ing information on an EPA form, which (2) If, in connection with all applica EPA eventually will be requested to dis contained the substance of the state ble claims, the office determines mat tue close the information at some future ments prescribed by S 2.2031a.1 : information clearly is not entitled to con date and thus will have to determine (Ri which otherwise failed to o-.-ert a fidential treatment, the office ,-h.ul time whether the informed.on is entitled to claim co\e:ir.-; the information niter be the actions required by 5 2.205 ffi, How confidential treatment. In such a case ing informed by EPA that such failure ever, if a busme-s has pieno id'. been this section's procedures should be ini could result m disclosure of the informa furnished nonce under 5 2 2G,ffiffi w.m tiated at the earliest practicable time, in tion to the public. or respect to the same mfoimation. no order to increase the time available foi T which has othersise waived or further notice need be fuihiikca to that preparation and submission of comments withdrawn a claim covering the informa business. A copy of each notice iiirni-heu and for issuance of determinations, and tion to a business under this paiagtaph cv to make easier the task of meeting re sponse deadlines if a request for re lease of the information is later lecened under 5 U.S.C. 552. (b) Previous confidentiality determi nation. The EPA office shall first ascer tain whether there has been a pieuous determination, issued by a Federal court or by an EPA legal office acting under this subpart, holding that the informa tion in question is entitled to confidential treatment for leasons of busmens con fidentiality. (1) If such a determination holds that the information is entitled to confiden tial treatment, the EPA office shall fur nish any person whose request for the information is pending under 5 USC. 552 an initial determination (see 5 2.111 and 5 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 appropri ate 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 i in If a request for release of the in formation under 5 U S.C. 552 is pend ing at the time inquiry is made under this paragraph (c)(2). the inquiry shall be made bv telephone or equally prompt means, and the responsible official con tacted shall be informed that any claim the business washes to assert must be brought to the EPA office's attention no later than the close of business on the third working day after such inquiry, (ill) A record shall be kept of the re sults of any inquiry under this paiagraph (cm21. If any business makes a claim covering the information, the EPA of fice shall take further action under para graph <rii of this icction. (31 If, after the examination under paragraph <c'(l> of this section, and after any inquiry made under paragraph (c)(2) of this section, the EPA office knows of no claim covering the informa tion and the time for response to any in quiry 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 (2) and 5 2.205(f) shall be forwaided piomptly, to the appropnate EPA legal office (e) Notice to affected busine~~e.. op portunity to comment (1) Whenever lequired by paraciaph <d'(l) of this section, the EPA office shall promptly furnish each btisincs- a written notice stating that EPA p. de termining under this subpart whether the information is entitled to confidential treatment, and affording the business an opportunity to comment. The notice -h ill be furnished by certified mail 'leturn re ceipt requested), by personal deli', erv or by other means which allows s e: idea tion of the fact and date of lerer : Tiv notice shall state the address of tne o.fii " to which the business's comment., .-hall be addressed (the appropirate EPA legal office, unless the General Court*?! has di rected otherwise), the time allowed for comments, and the method for requesting a time extension under 5 2,205'b >12 >. Tire notice shall further state that EPA will construe a business's failuie to fur nish timely comments as a waiter of the business's claim. EPA legal office, which shall consider taking action under 5 2.205th'. (2 With respect to all mfoimation not known to be entered by such a previ ous determination, the EPA office shall take action under paragraph (c) of this section. (c> Determining existence o! business confidentiality claims. this section on any business's claim, the EPA office shall make a detei munition with respect to each such claim. Each determination shall be made after con sideration of the provisions of 5 3.203, the applicable substantive criteria in 5 2,208 or elsewheie in this subpart, and any previously-issued determinations under this subpaut which are applicable. (2) If action under this section U oc casioned by a request for the informa tion under 5 U.S.C. 552, the period for comments shall be 15 working davs after the date of the business's leceipt of the written notice. In other cases, the EPA office shall establish a reasonably penod for comments (not less than 15 working days after the business's receipt of the (1) Whenever action under tins para (1) If, in connection with any busi written notice'. In all cases, the notice graph is required by paragraph tb>(2) ness's claim, the office determines that shall call the business's attention to the of this section, the EPA office shall exam the information may be entitled to con provisions of 5 2.205' b>. ine the information and the office's rec fidential treatment, the office shall-- (3) At or about the time the v fitter ords to determine which busmesses. if (i) Furnish the notice of oppoitunity notice >s furnished, the EPA office shall anv, are allected businesses (see > 2 201 (d>i. and to determine which businesses If anv, have asserted business confiden tiality claims which remain applicable to the information, If any business is found to hate averted an applicable claim, the office shall take action under paragraph <d) of this section with respect to each such claim, (2) (ii If the examination conducted muter paragraph (c)(1) of this section to submit comments prescribed by para graph ie> of this section to each business which is known to have asserted an ap plicable claim and which has not previ ously been furnished such notice with re gard to tlie information in question: hi Furnish, to any person whose re quest for release of the information is pending under 5 U.S.C. 552, a determina tion (in accordance with 5 2.113) that the Information may be entitled to con orally inform a responsible representa tive 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 lies not been received witlun a few dc.'.*- so that EPA may furnish a duplicate notice, (4) The written notice lequired by paragraph (e)(1) of this section shall in vite the business's comments oti the fol FEDERAL REGISTER, VOL. 41, NO, 171--WEDNESOAT, SEPTEMBER 1, 1976 COLORITE 006117 RULES AND REGULATIONS c am lowing points (subject to I mie; <5) of tills section) . (I) The portions of the Information which are alleged to be entitled to con fidential treatment: (II) The period of time for which con fidential treatment is desired by the business (e.g.. until a certain cate, until the occurrence of a specified event, or permanently): (ill) The purpose for which the in formation was furnished to LPA and the approximate dale of submission, If known; (iv) Whether a business confidentiality claim accompanied the Information when It was received bv EPA; (v) Measures taxer. hy the b . mess to guard against unriesireu discic- ure of the Information to others; (vl) The extent to which the informa tion has been disclosed to others, and the precautions taken in connection therewith; (vil) Pertinent confidentiality deter minations, If any, by EPA or other Fed eral agencies, and a copy of any such determination, or reference to It, if avail able; (vLii) Whether tile business asserts that disclosure of the information would be likely to result In substantial harm ful effects on the business's competitive position, and If so, what those harmful effects would be, why they should be viewed as substantial, and an explana tion of the casual relationship between disclosure and such harmful effects; and (lx) Whether the business a.sserts that the Information Is voluntarily submitted Information as defined In 2 201 (i>, and if so. whether and why disclosure of the Information would tend to lessen the availability to EPA of similar Informa tion 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) (1) through (e)(4) (lx) of this section, although the notice shall request con firmation of EPA's understanding of such facts where appropriate. (6) The notice shall refer to 5 2.205(c) and shall tmludu the w ..leann: pre scribed by 5 2 203'a). (f) Materials to be furnished to EPA legal ofiicc. When a matter Is referred to an EPA legal office under paragraph (d) (1) 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 In ques tion. or (where the quantity or form of the Information makes forwarding a cony of the Inform ulon Impractical) repre sentative samples, a description of the Information, or both; (2) A description of the circumstances and date of EPA's acquisition of the in formation ; (3) The name, address, and telephone number of tire FPA emp'o'. oc'.s) most familiar with the information; (4) Tire 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 busi ness's compliance or noncompliance with applicable requirements of f 2.203; (7) A copy of any request for release of the information penrimg under 5 U.S.C. 552: (8) The office's comments concerning the appropriate substantive criteria un der this subpart, and Information the of fice .possesses concerning tire Informa tion's entitlement to confidential treat ment; ar.d (9) Copies of other correspondence or memoranda which pertain to the matter. 2.203 Finn! confidentiality determina tion hy 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 adminis trative determination of whether or not business information covered by a busi ness confidentiality claim Is entitled to confidential treatment under this sub part. (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. (1) If the Initial denial was Issued under S 2.204(b) (1). a final determina tion by the EPA legal office is necessary only if the requestor has actually filed an appeal. (ii) If the Initial denial was Issued under 5 2.204(d)(1), however, the EPA legal office shall Issue a final determina tion In every case, unless the request has been withdrawn. (Initial denials under 5 2.204(d) (1) are of a procedural nature, to allow further Inquiry Into the merits of the matter, and a requestor 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 Of ficer on the tenth working day after is suance of the denial, the 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,5 2.117 of this part. (b) Comment period; extensions; untimcliness as teaitier of claim. (1) Each business which has been fur nished the notice and opportunity to comment p: ecc: ibed by 5 2.204 (d t (1) and 5 2.204ic) shall furnish its comments to the office specified in the notice in a manner re.vonabiy calculated to result In receipt of tue comments by that office not later than the date specified for re ceipt m the notice <or the date estab lished in lieu thereof under this section). (2> Tire period for submission of com ments may be extended if. before the comments are due, a request for an ex tension of the comment period Is made by the business and approved by the EPA legal office. Except in extraordinary cir cumstances. 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 com ments by a business may be shortened in the manner described to paragraph (g/ of this section. (4) If a business's comments have r.ut been received by toe specified EPA office on the date they are due, that office shc.il promptly Inquire whether the b-isiite.-' has complied with paragraph (b 1 '2 > of this section. If toe business has complied but the comments have been lost m transmission, duplicate comments shall be requested. (c) Confidential treatment of ccw- ments from business. If information sub mitted to EPA by a business as part of ns comments under this section pertains to the business's claim, is not others :-e possessed by EPA, and is marked when received to accordance with 5 2 2031b >, it will be regarded by EPA as entitled to confidential treatment and will net be disclosed by EPA without the business's consent, unless Its disclosure is duly ordered by a Federal court, notwith standing other provisions of tors subpait to toe contrary. (d> Types of final determinations, 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 to a manner reasonably calculated to result in receipt of the comments not later toon the date the comments were due, it shall determine that the business has waned Its claim. If, after application of the preceding sentence, no claim applies to the information, the office shall deter mine that the information is not entitled to confidential treatment under tins sub part and, subject to 5 2.210, is available to the public. (2) In all other cases, the EPA legal office shall consider each business s claim and comments, the various proMsior.s of this subpart, any previously-irsued de terminations under this support which Ere pertinent, the materials furr.i-rcci it under 5 2.204(f), and rum other mate rials as it finds appropriate with rew, to each claim, the office shall cetera.:- c whether or not the information is en titled to confidential treatment for tue benefit of the business that ss=c;*cd the claim, and the period of anv su"h entiil :ment (e g., until a ceitaiu d.re, ur.t.l t.-.e occurrence of a specified e\mt, or per manently), and shall take futtaor act.m. under paragraph (e) or if) of this sec tion, as appropriate. (3) Whenever the claims Of t "0 cr more businc'ses npplv to Use cr'c m;--mation. the EPA lewd office mail take tion appropriate undor toe particular cir cumstances to protect the in tees;.- of persons concerned iincluding any pci-m whose request for the ir.forrua'ion is pending under 5 USC 552 ). (e) Determination that information is entitled to confidential treatment. If toe FEDCRAl REGISTER, VOL 41, NO. 171--WEDNESDAY, SEPTEMBER I, 1976 COLORITE 006118 06010 RULES AND REGULATIONS EPA legal office determines that the in formation Is entitled to confidential treatment for the fall 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, 5 2 209, and the other provisions of this subpart which authorize disclosure in specified circumstances, and the office shall so 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 deter mination denying that request (f) Determination that information Is not entitled to confidential treatment: notice: waiting period; release of in formation, (1) Notice of denial (or partial denial) of a business confidentiality claim, in the form prescribed by paragraph (/) f2) of this section, shall be furnished-- (1) By the EPA office taking action under 5 2.204, to each business on behalf of which a claim has been made, when ever } 2.204(d) (2) requires such notice; and Ui) 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 in formation 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 cerfled 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 chap ter 7 of title 5, United States Code. With respect to EPA's implementation of the determination, the notice shall state that (subject to 5 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 such 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 fur ther 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 de nied a motion for a preliminary Injunc tion in the action or has otherwise up held the IIPA deierinination, or when ever it appears so the EPA legal office, after reusonaoie notice to the business, that the business is not taking appropri ate measures to obtain a speedy resolu tion of the action. If the Information has been found to be temporarily entitled to confidential treatment, the notice shall further state tnat the Information will not be daidosed prior to the end of the period of such temporary entitle ment to confidential treatment. (3) The period established in a notice under paragraph <f> (2) of this section for commencement of an action to ob tain judicial review may be extended If, before the expiration of such period, a re quest for rn extension is made by the business and approved by the EPA legal office. Except in extraordinary circum stances, the EPA legal office will not ap prove such an extension without the consent of any person whose request for release of the information under 5 U.S.C. 552 is pending, (4) After the expiration of any period of temporary entitlement to confidential treatment, a determination under this paragraph (f) shall be Implemented by the EPA legal office by making the In formation available to the public (in the absence of a court order prohibiting dis closure) whenever-- (1) The period provided for com mencement by a business of an action to obtain judicial review of the deter mination has expired without notice to the EPA legal office of commencement of such an action; (li) The court, in a timely-commenced action, lias denied the business' motion for a preliminary injunction, or has oth erwise upheld the EPA determination; or (ill) 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 tlmely-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 situations. If the Gen eral Counsel finds that disclosure of in formation 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 such shorter comment period (paragraph (b) of this section), post-determination waiting period (paragraph (f) of this section), or both, as he finds necessary under the circumstances. <h> Modification of prior determina tions. A determination tiiat 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 with its terms until an EPA legal office taking ac tion under tills section, or under $ 2.206 or } 2.207, issues a final determination statmg that the earlier determination no longer describes correctly the infor mation's entitlement to confidential treatment because of change m the ap plicable Jaw. newly-discovered 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 de scribed by 5 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 tne in formation is not entitled to confidential treatment, or that the period of entitle ment 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 tills section. Determinations under this section may be made only by, or with the concurrence of, the General Counsel. (1) Delegation and redclegaUon of au thority. Unless the General Counsel otherwise directs, or this subpart other wise specifically provides, determina tions and actions required by this sub- part 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 5 2.204 or 5 2.206(b) is under the supervision of a Regional Administrator, and by the General Counsel in all other cases. The General Counsel may redeiegate any or all of his authority under this suboart to any attorney employed by EPA on a full time basis under the General Counsel's supervision. A Regional Counsel may re delegate any or all of his authority under this subpart to any attorney employed by EPA on a full-time under the Regional Counsel's supervision. 2.206 Advance confidentiality deter minations. (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 infor mation to EPA; (2) The business asserts that the in formation, if submitted, would constitute voluntarily submitted information under { 2.201(1) ; (3) The business will voluntarily sub mit the information for use by EPA only if EPA first determines that the informa tion Is entitled to confidential treatment under this subpart, and (4) The EPA office which desires sub mission of the information has request ed that the EPA legal office issue a deter mination under this section. (b) The EPA office requesting an ad vance determination under this ,-eotiou shall-- (1) Arrange to have the business fur nish directly to the EPA legal office a copy of the Information (or. where feasible, a description of the nature of FEDERAL REGISTER, VOL 41, NO. 171--WEDNESDAY, SEPTEMBER 1, 1976 COLORITE 006119 RULES AND REGULATIONS 36911 the Information sufficient to allow a termination to be made1 , a well as the business's commen's concerning the matters addressed m S2 2G4'e><4>, ex cluding, however, matters addressed In J2 2Q4 re>(4)(iu) and <e> (4) <ivi; and (2i Furnish to the EPA legal office the materials referred to in J 2 204 (f ' .3, tf) (7), (f) (8). and (f M9>. (c) In making a determination under this section, the EPA lord office shtoi first determine whether or not the in formation would constitute voluntarily submitted Information under 5 2,201(1). If the Information v.ouid constitute vol untarily submitted information, the le gal office shall further determine whether the Information is entitled to confidential treatment. (d) If the EPA legal office determines that the Information would not consti tute 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 infor mation is received while the EPA legal office is in possession of the informa tion, the legal office shall retain a copy of the Information, but shall not dis close It unless ordered by a Federal court to do so). The legal office shall not disclose the information to any other EPA office or employee and shall not use the information for any purpose except the determination under this section, unless otherwise directed by a Federal court. (e) If the EPA legal office determines that the information would constitute voluntarily submitted Information and that it is entitled to confidential treat ment, it shall so inform the EPA office which requested the determination and the business which submitted it, and shall forward the Information to the EPA office which requested the deter mination. 2.207 Cla^s 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 information; (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 1s not. voluntarily submitted Information under 5 2.201(1); (21 7C. or is pot, governed by a partic ular f*'C'..an of suapart, or hv a par ticular set cf ;-,p criteria under tills subpart: (3) Falls to satisfy one or more of the applicable substantive criteria, and Is therefore ineligible for confidential treatment: (4) Satisfies one or more of the appli cable 'Ubst.vi'ivp criteria; or '5) Sat-sfiis one or more of the appli cable substantive criteria during a cer tain period. but will be ineligible for con fidential treatment thereafter, <d) The purpose of a class determina tion is simply to make known the -Igency'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 5 2.204(d)fl)(il) and 5 2.205(b), and the list of materials required to be furnished to the EPA legal office under 5 2.204(d) (1) (ill), 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 appropri ate cases, action based on the class deter mination may be taken under 5 2.204(b) (1). 5 2.204(d). 5 2.205(d), or 5 2.206. However, the existence of a class deter mination shall not, of itself, affect any right a business mav have to receive any notice under 5 2.204(d) (2) or 5 2.205(f). g 2.203 ^iibsianlive criteria for use in confidentiality determinations. Determinations Issue* under 5 5 2.204 through 2,20" shall hold that business in formation is entitled to confidential treatment for the benefit of a particular business if-- (a) The business has asserted a busi ness confidentiality claim which 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 of the Information, and that It intends to continue to take such measures: (c) The information Is not, and has not been, reasonably obtainable w-ithout the business's consent by other persons (other than governmental bodies) by use of legitimate means (other than dis covery based on a showing of special need In a judicial or quasi-Judiclal pro ceeding) : (d) No statute specifically requires disclosure of the information; and (e) Either-- (1) The business has satisfactorily shown that disclosure of the Information is likely to cause substantial harm to the business's competitive position; or (2) The Information Ls voluntarily submitted information (see 5 2 201(D), and Its disclosure would be likely to Im pair the Government's ability to obtain necessary information in the future. g 2.200 Disclosure in special circum stance1*, (a) General, information which, under this subpart, Is not available to the public may nonetheless be disclosed to the per sons, and In the circumstances, described by paragraphs <b) through (fi of this section. (This section shall not be con strued to restrict the disclosure cf infor mation which has been determined to be available to the public ) (b) Disclosure to Congress or the Comptroller General. Upon receipt 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, unicss a statu:? forbids such disclosure. In making such a disclosure, EPA will Inform tire re questing body of any unresolved business confidentiality claim known to cover tire information, and of any determination by EPA under this subpart holding that the Information is entitled to confidential treatment. tc> Disclosure to other Federal agen cies. EPA may disclose business informa tion to another Federal agency if-- (1) EPA receives a written request for disclosure of the information from a duly authorized officer or employee of the other agency; (2) The request sets forth the official 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 subpart holding that the information is entitled to confidential treatment; and (4) The other agency agrees not to dis close the information further unless-- (I) The other agency has statutory authority both to compel production of the information and to make the pro posed disclosure; (II) nse 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 General Counsel or an EPA 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 busi ness. EPA may disclose any business in formation to any person if EPA has ob tained the prior consent of each affected business to such disclosure. (g) Record ot disclosures to be main tained. Each EPA office which discloses information to Congress a committee or subcommittee of Congress, the Comp troller General, or another Federal agency under the authority of paragiaph (b) or (c) of this section, shall main tain a record of the fart of such dis closure for a period of not less than 3G months alter such disclosure. Such a rec ord, which may be In the form of a lny, shall show the name of the affected bu.-inesses. the date of disclosure, the person or body to whom disclosure was made. FEDERAL REGISTER, VOL 41, NO. 171--WEDNESDAY, SEPTEMBER 1, 1976 COLORITE 006120 n9i2 RULES AND REGULATIONS and a description of the lufr.rmatiijn disclosed. 5 2.210 Nondisclosure fur roii-om other Ilian business ronfidenlialilr or where disclosure is prohibited be other stats ute. . a> Information which is not entitled to confidential treatment under this subpart shall be made available to the pub lic (using the procedures .-t: forth m 5' 2 204 and 2 205) If Its release Is re quested under 5 U.S.C. 552. unless EPA determines (under subpart A of this part) that, for reasons other than rea sons of business confidentiality, the in formation is exempt from mandatory disclosure and cannot or should nut 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 scolding delay in responding to requests under 5 U S.C. 552. (b) Notwithstanding any other provi sion of this subpart, if any statute not cited In this subpart appears to require EPA to give confidential treatment to any business information for reaions of business confidentiality, the matter shall be referred promptly to an EPA legal of fice for resolution. Pending resolution, such Information shall be treated as if it were entitled to confidential treat ment. 2.211 Safeguarding of bndne-e infor mation; penalty for wrongful di-elostirc. (a) No EPA officer or employee may disclose, or use for his or her private gain or advantage, any business 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 authorised by this subpart. (b) Each EPA officer or employee who has custody or possession of business In formation shall take appropriate meas ures to properly safeguard such infor mation and to protect against its im proper disclosure. (c) Violation of paragraphs (a) or (b) of this section shall constitute grounds for dismissal, suspension, fine, or other adverse personnel action. Willful viola tion 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 S 2 301(h), 5 2 302(h), 5 2.304(h). 5 2 307(h), or 5 2-308(1). shall use or disclose that information only as permitted by the contract under which the information was furnished. Any vio lation of this paragraph shall constitute grounds for debarment or suspension of the contractor or contractor's employee in question. Willful violation of this par agraph may result In criminal prose cution. 5 2.212 F*tnldi`limrnt of control offices for categories of bu-inevs informa tion. (a) The Administrator, by order, may establish one or more mutually exclusive categories of Dusinexs Information, and may designate for each such category an EPA office (hereinafter referred to as a "control office ) which shall have resporv.bilnv icr t-Aung actions tother than actions required to be taken by an EPA legal office) with re-pect to all in formation within such category. (b) If a control office has been as signed responsibility for a category of business information, no other EPA of fice, officer, or c-mplov ee may make avail able to the puolic 'or otherwise disclose to persons other than EPA officers and employees) any information in that category without first obtaining the con currence of the control office. Requests under 5 U S.C, 552 for release of such in formation shall be referred to the con trol office. to) A control office shall take the ac tions and make the determinations re quired by 5 2.204 w ith respect to all In formation in any category for which the control office has been assigned respon sibility. (d> A control office shall maintain a record of the follow mg. with respect to items of business Information In cate gories for which It has been assigned responsibility: (1) 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 Federal courts; and (6) Related information concerning business confidentiality. 2.213 Designation by business of ad dressee for notices and inquiries. (a) A business which wishes to desig nate a person or office as the proper ad dressee of communications from EPA to the business under this subpart may do so by furnishing In writing to the Free dom of Information Officer (A-101). En vironmental Protection Agency, 401 M St. SW,, Washington. D.C. 20460. the following information; the name and ad dress of the business making the desig nation: the name, address, and telephone number of the designated person or of fice: and a request that EPA inquiries and communications (oral and written) tinder 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 a business's designee under this subpart (b) If a business has named a designee under this section, the following EPA in quiries and notices to the business shall be addressed to the designee: (1' Inquiries concerning a business's desire to assert a business confidentially claim, under 5 2.204ic) (2) (1) (A) ; (2) Notices affording opportunity to substantiate confidentiality claims, un der 5 2 204(d)(1) and 5 2.204(e); (31 Inquiries concerning comments, under 5 2.205(b) (4) ; (4) Notices of denial of confidential treatment and proposed disclosure of in formation, under 5 2 205(f); (5) Notices concerning shortened comment and'or waiting periods under 5 2.205(g) ; (6) Notices concerning modifications or overruhngs of prior determinations, under 5 2.205(h) : and (7) Notices to affected businesses un der 5 2 301(g) and 5 2.301(h). and anal ogous provisions in 5 2 302, 1 2.303, and 5 2.304 (c) Businesses 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 desig nations. 2.214-2.300 [Re-ervcclJ 2.301 Special rules governing certain information obtained under the ( lean Air Act, (a) Definitions. For the purpose of this section: (1) "Act" means the Clean Air Act, ass 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 deter mine 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 result ing from any emission by the source', or any combination of the foregoing: (B) Information necessary to deter mine the Identity, amount, frequency, concentration, or other characterlst:cs (to the extent related to air quality) of the emissions which, under an applicable standard or limitation, the source was authorized to emit (including, to the ex tent necessary for such purposes, a de scription of the manner or rate of opera tion of the source); and (C) A general description of the loca tion 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 de vice. installation, or operation constitut ing the source). (11) Notwithstanding paragraph (a) (2) (1) of this section, the following In formation 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 limita tion, or to allow EPA to demonstrate the feasibility, practicability, or attainability (or lack thereof) of an existing or pro posed standard or limitation: FEDEIAl IEGISTEI, YOU 41, NO. 171--WEDNESDAY, SEfTEMIEt 1, 1976 COLORITE 006121 RULES AND REGULATIONS 3691:; (A) Information conocr"k-g n;*?arch. or the results of research, on any project, method, device or lnsta,,.Uljn (or any component thereof! which was produced, developed, Installed, and used only for research purposes; and (B) Information concerning any prod uct, method, device, or Installation (or any component thereof) designed and intended to be marketed or u;ed com mercially 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 rulemak ing. 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(l). <b> Applicability. (1) Tills section ap plies to business Information which was-- il) Provided or obtained under section 114 of the Act. 42 U.SC. 1857C-9. by the owner or operator of any stationary source, for the purpose (A) of developing or assisting in the development of ar.y 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 emission standard under section 112 of the Act. 42 U.SC. 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-l; (11) Provided or obtained under section 208 of the Act, 42 U.S C. I857f--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 (ill) 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 US.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 a 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 Informa tion, whether an order to provide the information was Issued under section 113 `ai of the Act. 42 U.S.C. 1857c-8(ft>, whether an action was brought under section 113(b) of the Act, 42 U S.C. 1857c8'b>. or whether the information was provided directly to EPA or through some thud person. i3' Information will be considered to nave been provided or obtained under section 208 of the Act If It was provided in response to a request by EPA made for any of the purposes stated In section 208, or if Its submission could have been re quired Under action 208, regardless of whnner section 203 was cited as the au thority for any request for the Informa tion, whether an action was brought under section 204 of the Act, 42 U.SC. 18575-3. or whether the information was provided directly to EPA or through some third person. (4 ' Information will be considered to hate oeen provided or obtained under section 307(&) of the Act if it was pro vided in response to a subpoena issued under section 307(a), or If its production could have been required by subpena under section 307(a), regardless of whether section 307(a) was cited as the authority for any request for the infor mation, w-hether a subpoena was Issued by EPA, whether a court Issued an order under section 307(a), or whether the In formation was provided directly to EPA or through some third person, (5) This section specifically does not apply to Information obtained under sec tion 115(j) or 211 (b) of the Act, 42 U.S.C. 1857d(j). 1857f-6c(b). (c) Basic rules which apply without change. Section 2.201 through $ 2.205, 5 2,207, 5 2.209, and 5 2.211 through 5 2,213 apply without change to in formation to which this section applies, (d) Special procedure for advance confidentiality determinations. Section 2.206 applies without change to Informa tion to which this section applies; how ever, no information to which this sec tion applies is voluntarily submitted In formation. (e) Substantive criteria for use in con fidentiality determinations. Section 2.208 applies to information to which this section applies, except that Information which Is emission data or a standard or limitation is not eligible for confiden tial treatment. No information to which this section applies Is voluntarily sub mitted information. (f) Availability of Information not entitled to confidential treatment. Sec tion 2.210 does not apply to Information to which this section applies. Emission data, standards or limitations, and any other Information provided under sec tion 114 or 208 of the Act which is deter mined under this subpart not to be en titled to confidential treatment, shall be available to the public notwithstanding any other provision of this part. Emis sion data and standards or limitations provided In response to a subpoena is sued under section 307(a) of the Act shall be available to the public notwithstand ing any other provision of this part. In formation (other than emission data and standards or limitations) provided in re sponse to a subpoena issued under sec tion 307(a) of the Act, which is deter mined under this subpart not to be en titled to confidential treatment, shall be available to the public, unless EPA deter mines 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. (g) Disclosure of information relevant to a proceeding. (1) Under sections 114. 203 and 307 of the Act, any information to whim this section applies may be released by EPA because of the relevance of the in formation to a proceeding, notwithstand ing the fact that the information other wise might be entitled to confidential treatment under this subpart. Release of information because of its relevance a proceeding shall be made only in ac cordance with this paragraph g i. (2) In connection with any proceed ing m 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 availab.e to the public under this paragraph <g> (2). No information may be d.scioseJ under this paragraph (g)(2) unless it has first been determined to be elig.b'.e for confidential treatment under 5 2.204 and 5 2.205. No Information shall be made available to the public under this paragraph (g) (2) until any affected busi ness has been informed that EPA Is con sidering making the information avail able 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 m connec tion with the notice prescribed by 5 2 204 (d) (1) and 5 2.204(e)). Information may be made available to the public under this paragraph (g) (2) only If, after con sideration of any timely comments sub mitted 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 the public. (3) 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 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 af fected business that disclosure under this paragraph (g) (3) has been proposed, and shall afford each such business a period for comment found by the presiding of ficer to be reasonable under the cir cumstances. Information may be dis closed under this paragraph rgi <3> only If, after consideration of any timely com ments submitted by the business, the EPA office determines til writing that, for reasons directly associated with the con duct of the proceeding, the contemplated disclosure would serve the public inter est, and the presiding officer determines in writing that the information is rele vant to a matter in controversy tn the proceeding. The presiding officer may condition disclosure of the Information FEDERAL REGISTER, VOL. 41, NO. in--WEDNESDAY SEPTEMBER 1, 1476 COLORITE 006122 GG'Jl i RULES AND REGULATIONS to a party of iecor- the making of such protective an an cii'.cii'j anti com mitments as lie rue.? to oe warranted. Disclosure to one or more parries of rec ord, under protective arrangements or commitments, shah not, of itself, affect the eligibility of Information for con fidential treatment under Lie other pro visions of this subpart. (4) In connection with anv proceed.ng in which It appears that a decision v, hi 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 Ins request 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. Infor mation 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 satisfac torily shown that with respect to a sig nificant matter which 1s in controversy in the proceeding, the party's ability to participate effectively in the proceeding will be significantly Impaired unless the information is disclosed to him, and < u > any harm to an affected business that would result from the disclosure is likely to be outweighed 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 to one or more parties of record, under protective arrangements or commitments, shall not, of Itself, affect the eligibility of informa tion to confidential treatment under the other provisions of this subpart. (hi Disclosure to authorized repre sentatives. (li Under sections 114. 208 and 307(ai of the Act, EPA possesses au thority to disclose to any authorized rep resentative of the United States any In formation to which tills section applies, notwithstanding the fact that the infor mation might otherwise be entitled to confidential treatment under this sub part, Such authority may be exercised only in accordance with paragraph (h) (21 or (li> (3) of this section. (2) (H A person under contract to EPA to perform work lor EPA in connection with the Act or regulations which imple ment tiie 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 <hM2i, information to which this section applies may be disclosed to such a person if the EPA progiam office managing the contract first determines m writing that such disclosure Is neces sary in order that tire contractor may tarry cut the work requited by the con tract <u) No tnforma'ion sh-,:i be disclosed under this paragraph ih>(2i unless the contract In question provides that the contractor and the contractor's em ployees shall use the information onlv for the purpose of carrying cut the work re quired by the contract, shall refrain from disclosing the ir format ism to any one oriier than EPA without the prior written approval of each affected busi ness or of an EPA legal office, and shall return to EPA ail copies of the informa tion (and any abstracts or extracts there from) upon request bv the EPA program office or whenever the Information is no longer requited 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 contrac tor's employees who will have access to the information, before such employee Is allowed such access, nor unless the con tract further provides that the contrac tor 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 af fected business having an interest in in formation concerning It supplied to the business by EPA under the contract, (ill) Except to the extent that the EPA program office determines in writ ing that conduct of EPA activities would be seriously hampered by notifying af fected businesses of duclosures proposed to be made under this paragraph (h) (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 pro gram 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 dis closed. the identity of the contractor, the contract number, and the purposes to be served by the disclosure. <iv) The EPA program office shall pre pare a record of each disclosure under this paragraph (hi (2), showing the con tractor, the contract number, the infor mation disclosed, the date(s) of disclos ure, and each affected business. The EPA program office shall maintain the record of disclosure, the determination of neces sity prepared under paragraph (h) (2) (i) of this section, and any determination not to notify affected businesses prepared under paragraph <h' (2) (iii) 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 nr 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 ih) 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 In formation a written opinion from tne agency's chief legal officer or counsel 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 (li) Each affected business is Informed of those disclosures under this paragraph (h) (3) which pertain to It, and tile agency has shown to the satisfaction of an EPA legal office that the acency s u?e and disclosure of such information will be governed by state or local law and pro cedures which will provide adequate pro tection to the Interests of affected thin nesses, 2.302 Special rules governing rerT i[n information obtained under the 1 idera! Water Pollution Control Art, (a) Definitions. For the purposes of this section: (1) "Act" means the Federal Water Pollution Control Act, as amended, 33 U.S.C.1251 et seq. (2) (1) "Effluent data" means, with r-, ference to any source of discharge of any pollutant (as that term is defined m sec tion 502(6) Of the Act, 33 U S.C. 13G2 (6) > -- (A) Information neceasary to deter mine 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 ior of any pollutant resulting from any dis charge from the source), or any comoinatlon of the foregoing; (B) Information necessary to deter mine the identity, amount, frequency, concentration, temperature, or ocher characteristics (to the extent related to water quality) of the pollutants which, under an applicable standard or limita tion, the source was authorized to dis charge (including, to the extent neces sary for such purpose, a description of the manner or rate of operation of the source) ; and <C) A general description of the loca tion 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 tim de vice, installation, or operation constitut ing the source). (it) Notwithstanding paragraph (ai (2) (i) of this section, the foilowm; in formation shall be considered to be * t. ffluent data" only to the extent necessary to allow EPA to disclose pubiicly mat a source is ior is not) in compliance vitn an applicable standard or limitation, or to allow EPA to demonstrate the kv,,-ibility, practicability, or attainability (or lack thereof i 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 pr >duced, developed, Installed, and used only for research purposes: and (B) Information concerning any prod uct, method, device, or installation (or any component thereof) designed and in FEDERAL REGISTER, VOL. 4t, NO. 171--WEDNESDAY, SEPTEMBER I, 1976 COLOR!TE 006123 RULES AND REGULATIONS 36915 tended to be ni.vrhet-;a < r u>. ) L..i~m-rClally but not vc: so merke-ert nr u.-` ! (3i "StandarG or limit iimn" ir,r in any prohibition, any effluent limitation, or any toxic, pre-treatment or new source performance standard established or publicly proposed pursuant to the Act or pursuant to regulations under tire Act, including limitations or prohibitions In a petir.lt issut-d or propo-ed In I'UA or oy a State under section -4d2 of the .v-t. 33 U.S.C. 1342. (41 "Proceeding" means any ruleman- Ing, adjudication, or licensing conducted by EPA under the Act or under regula tions which Implement the Act. except for determinations ur.dt r tin, pa;' (b) Appitcabih'c. (1) This section ap plies only to business information-- (1) Provided to or obtained by EPA under section 303 of the Act, 33 U S C, 1318, by or from the owner or operator of any point source, for the purpose of car rying out the objective of the Act in cluding but not limited to developing or assisting in the development of any standard or limitation under the Act, or determining whether any per.-on is in violation oi any such standard or limi tation) : or (il) Provided to or obtained by EPA under section 509(a) of the Act, 33 U S C 1369(a). (2) Information will be considered to have been provided or obtained under section 308 of the Act If it was provided in response to a request by EPA made for any of the purposes stated m section 308, or if its submission could have been required under section ?P8, regardless of whether section 308 was cited as the au thority for any request for the informa tion, whether an order to provide the in formation was issued under section 309 (a) (3) of the Act. 33 U.S.C. 1319(a) < 3 >, whether a civil action was brought under section 309(b) of the Act. 33 U S C, 1319 (b) , and whether 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 509(a) of the Act If It was pro vided in response to a subpoena issued under section 50Q(a), or if its production could have been required by subpoena under section 509(a). regardless of whether section 509(a) was cited as the authority for any request for the infor mation, whether a subpoena was issued by EPA. whether a court Issued an order under section 307(a). or whether the In formation was provided directly to EPA or through some third person. (4) This section specifically does not apply to Information obtained under section 310'd) or 312(g)(3) of the Act, 33 U.S.C. 1320(d), 1322(g)(3). (c) Basic rules which apply without change. Section 2.201 through 5 3 2 203, 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 fidcntiality determinations. Section 2.208 applies without change to information to which this section applies; however, no Information to which tills section applies Is voluntarily submitted information. *f1 Sub',: ante, e criteria lor use irt (on- "g r.fiu.tfv dm-'-n.-.nations. Section 2 208 c.ppi.rs to ;;.P-motion to which tins sec tion ap; lies, except that information which is effluent data or a standard or limitation is net eligible for confidential treatment. No information to which this section appi.e, is voluntarily submitted information f -U^da of information not cn- 'pyd to coi.'id-'ntial treatment. Section 2 210 docs not apply to information to which this section applies. Effluent data, standards or limitations, and any other information provided or obtained under seciioii 308 of the Act which is deter mined und* this subpart not to be en titled to crnfitier.tial treatment, shall be available to the public notwithstanding any other provision of this part. Effluent data and standards or limitations pro vided in response to a subpoena Issued under section 509(a) of th_- Act shall be available to the public notwithstanding any other provision of this part. Infor mation 'Other than effluent data and standards or limitations i provided in re sponse to a subpoena issued under sec tion 505.a) of tiie Act, which is deter mined under this subpart not to be en titled to confidential treatment, shall be available to the public, unless EPA de termines that the information Is exempt from mandatory disclosure under 5 U.S C. 552(b) for reasons other than rea sons of business confidentiality and can not or should not be made available to the public. (g) Disclosure ol information relevant to a proceeding. il. Under sections 308 and 509(a) of the Act, any information to which this sect.on applies may be released by EPA because of the relevance of the Informa tion to a proceeding, notwithstanding the fact that the information otherwise might be entitled to confidential treat ment under this subpart. Release of in formation to which this section applies because of its relevance to a proceeding shall be made only m accordance with this paragraph (g>. 12--4) The provisions Of 5 2.301(g)(2), (g)(3), and (g)(4) are Incorporated by reference as paragraphs (g)(2), (g)(3), and (g)(4), respectively of this section. ih) Disclosure to authorized repre sentatives. d) Under sections 308 and 5091ft) of the Act, EPA possesses au thority to disclose to any authorized rep resentative of the United States any information to which this section ap plies, notwithstanding the fact that the information might otherwise be entitled to confidential treatment under this sub part. 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 refer ence as paragraphs (h)(2) and (h)(3), tespceinely, of this section. 2.303 Special rules governing certain infnrnuiliun obtained under the IVoNe Control Vet of 1972. (ft) Definitions. For the purposes of this section: (t) "Act" means the Noise Control Act of 1972, 42 U.S.C. 4901 et seq. (2) "Manufacturer" has the meaning given it in 42 U S C. 4902(6). (3) "Product" has the meaning gr, It in 42 U^.C. 4902(3). (4) "Proceeding" means any rulemak ing, adjudication, or licensing conducted by EPA under the Art or under regula tions winch implement the Act. except for determinations under this subpart, (b) Applicability. This section applies only to Information provided to or ob tained by EPA under section 13 of the Act, 42 U S.C. 4312, by or from anv man ufacturer of any product to which reg ulations under section G or 8 of the Act (42 U.S.C. 4905, 4907) apply. Informa tion will be deemed to have been pro vided or obtained under section 13 of the Act If it was provided .n responds to a request by EPA made for the pur pose of enabling EPA to determine whether the manufacturer has acted cr Is acting in compliance with the Act, or If its submission could have teen 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 was issued under section lUd) of the Act. 42 U S.C. 4910(d), and whether the in formation was provided directlv to EPA bv the manufacturer or through some third person (c) Basic ru>cs which apply without change. Section 2 201 through 5 2.203 5 2.207, and 5 2.209 through 5 2.213 ap ply without change to information to which this section applies. (d) Special procedure tor advance confidentiality determinations Section 2 206 applies without change to infor mation to which this section applies; however, no Information to whith this section applies is voluntauly submitted information. (e ) Substantive criteria for use in con fidentiality determinations. Section 2 203 applies without change to information to which this section applies; however, no information to which this section ap plies Is voluntarily submitted Informa tion. (f) Reserved. (g) Disclosure ol information relevant to a proceeding. (1) Under section 13 of the Act, any information to which this section applies may be released by EPA because of Its relevance to a matter In controversy in a proceeding, notwith standing the fact that the information otherwise might be entitled to confi dential treatment under this subpart. Re lease of information because of its rele vance to a proceeding shall be made only In accordance With this paragraph (2-4) The provisions of 5 2 301* g)2 . (g)(3), and (g)(4) a:e mcorpor.vted by reference as paragraphs (g'<2), (g)`3', and (g)(4), rc'-pectiv eh . of this section. (h) Reserved 2.30V Special tub-- governing n rt.dn information obtain* d under the rale Drinking W tiler Vet. (a) Definitions For ihe purposes of this section: (l) "Act" means the Safe Drinking Water Act. 42 U.S.C. 300f et seq. FEDERAL REGISTER, VOL. 41, NO, 171--WEDNESDAY, SEPTEMBER 1, 1974 COLORITE 006124 06916 RULES AND REGULATIONS (2) "Contaminant" means any phys ical, chemical, biological, or radiologi cal substance or matter in water. (3) ``Proceeding" means any rulemak ing. adjudication, or licensing process conducted bv EPA under the Act or un der regulations which Implement the Act. except tor any determination under this part. (b> Applicability. (1) Tins section ap plies only to Information-- U> Which was provided to or obtained by EPA pursuant to a requirement of a regulation which was i-suc-d 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 fi nancial assistance under the Act; and Oi) Which was provided by a person-- (A) Who is a supplier of water, as de fined in section 1401 (5J of the Act, 42 U.S.C. 3OOf (5); (B) Who is or may be subject to a primary drinking a a ter regulation under section 1412 of the Act, 42 U.S C, 300g-l; (C) Who is or may be subject to an applicable underground Injection con trol program, ns defined in section 1422 (d) of the Act, 42 U.S.C, 300h-l(d> ; (D) Who is or may be subject to the permit requirements of section 1424(b) of the Act, 42 U.S.C. 300h-3ib> ; (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 U-S C. 300 J-4(e). (2) This section applies to any infor mation 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 program under the Act) made for any purpose stated in paragraph (b)(1) of this section, or if its submission could have been required under section 1445 of the Act, 42 U.S.C. 300J-4. regardless of whether such sec tion was cued m any request for the in formation. or whether the information was provided directly to EPA or through some third person. (c) Basic rules which apply without charter. Section 2 201 through 5 2 205, 5 2.207, 5 2 209, and 5 2-211 through 5 2 213 apply without change to informa tion to which this section applies. id i Special procedure for advance con fidentiality determinations. Section 2 22C r.pphc'' without change to informa tion to which this section applies; how ever. no information to which this sec tion apples is voluntarily submitted information <c' Suh~.'r:ntii r criteria for use in con fidentiality determinations Section 2,203 apples to information to which this sect'on appi's.s, ewept 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 recUon applies 2s 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 ex istence. 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 oe released by EPA because of tire reievar.ee of the in formation to a proceemnu, notwithstand ing tire fact that tire information other wise might be entitled to confidential treatment under this subpart. Release of information to which this section applies because of its relevance to a proceed ing shall be made only in accordance with this paragraph tg). (2-4) The provisions of 5 2.301 (g) (2), (g)(3),(g)(4) are incorporated by refer ence as paragraphs (g)(2), (g)(3), RT.d (g) (4), respectively, of this section. (h) Disclosure, to authorised repre sentative'>. (1) Under section 1445(d) of the Act, EPA possesses authority to dis close to any authorized representative of the United States any information to which this section applies, notwithstand ing the fact that the information other wise might be entitled to confidential treatment under this subpart. Such au thority may be exercised only in accord ance with paragraph <h) (2) or (h) (3) of this section, (2-3) The provisions of 5 2.301 (h) (2) and ih) (3) are incorporated by reference as paragraphs (h)(2) and (h)(3), re spectively, of tills section. 2.305 [Reserved] 2.306 [Reserved] 2.307 Special mice governing certain information obtained under the Fed eral Insecticide, Fungicide and Hodcnticidc .Vet, (a) Definitions. For the purposes of this section: (1) "Act" means the Federal Insecti cide. Fungicide and Rodenticide Act, as amended. 7 U.S C. 130 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 pred ecessor 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 nny person who has obtained reci-tratmn under the Act of a pesticide or of an establishment. (b) A pphealu'i'Thus section applies to all information submitted to EPA by an applicant or registrant for the pur pose of sati-fyir.q some requirement or condition of the Art or of regulations winch implement the Act, Including in formation originally submitted to EPA for some other purpoie but Incorporated by tile applicant or registrant into a sub mission in order to satisfy some require ment or condition of the Act or of regu lations which Implement the Act. This section does not apply to Information supplied to EPA by a petitioner In sup port of a petition for a tolerance uncer 21 U.S C. 346a(d). unless the Informa tion is also described by the first sen tence of this paragraph. <c) Basic rules which apply without change. Section 2.201 through 5 2.203. 5 2.207, and 5 2 210 through 5 2 21 3 ap ply without change to Information to which this section applies. (d) Initial action bv EPA affine, se-'tion 2 204 applies to information to which this section applies, except that the provisions of paragraph (e> of tl.s section regarding the time allowed for seeking judicial review- shall be refiect'-.; In any notice furnished to a business under 5 2.204(d) (2). ie> Final confidentiality determinetion by EPA legal office. Section 2 205 ap plies to Information to which this sec tion applies, except that-- (1) Notwithstanding 5 2.205fi', the General Counsel (or his designee>. rather than the Regional Counsel, shall mage the determinations and take the actions required by s 2.205: (2) In addition to the statement pre scribed by the second sentence of 5 2 205 (f) (2). the notice of denial of a business confidentialitv claim shall state that un der section 10(c) of the Act. 7 U S C, 136h(c', the business mav commence an action in an appropriate Federal district court for a declaratory nidginent: (3) Tire following sentence is substi tuted for the third senten-e of 5 2 705': > (2) ; "With respect to EPA's implemen tation of the determination, the no;"'e shall state that (subtect to 5 2 Un) EPA will make the information available to the public on the thirty-first (31st) cal endar day after the date of the busi ness's receipt of the written notice 'or on such later date as is established m lieu thereof under paragraph (f (g) of this section), unless the EPA legal od e has first been notified of the business's commencement of an action in a Fed eral court to obtain judicial review cf the determination or to obtain a declar atory judgment under section 10'c' of the Act and to obtain nro'im.imry in junctive relief against disclosure and (4) Notwithstanding 5 2 205'-', the 31 calendar dav jieriod prescribed bv t 2 205(f) (2). as modified bv paragraph <e, (3) of this section, sha'l not be `''o:',ened without the consent of the bii-nr <- (f) Sncciat procedure tor rdranre rprfidcntiality d'-terrmnations Sec-on 2 p",_- applies without change to mf.u ntaP.-h to which this section armies It,vsc`. er no Information to which tbs sc -ion ;n. plies is voluntanly submitted iiu'runa tion. (q) Snhstnnth e enteric for use in con fidentiality determinations Section 2 273 applies without rluui''o to information to whl-h this section applies: however, no Information to which tills section ap plies Is voluntarily submitted inlorma- uon. federal register, vol 41, no. 171--Wednesday, September i, 1974 COLORITE 006125 RULES AND REGULATIONS <1r 117 ' i i Lti- t lo. V ' 1 : x a 1 )' ' ' - s!ci.i"" < 1 1 E-''W',n 2.: 1 , ' i; .* out change to U'hwy ::or. to " r.u 'l section anphe> I:i addition, under tion 1 li'a 1 Di iH>1 of tne Act. 7 USC. 13Sjia 1 1 1 D', EPA po="eatuhomy to disclose any information to whn.h this seoiion applies to Physnians, pharma cists, and ctnc-r qualified pci a. ; neechfig sumi UiU.; ir.n.ii-'ii hr t ,e m: fo: me:.. e that the informal:.m mi ,iu other-'. , = e be entitled to confidentis 1 ircatmiiit ui.'h r this subpart. Such autiiomy under sec tion 1D1 a> 12> 'Di of the Act may bo ex ercised only in accoi ounce with j-ciagr.n'it in i <? > or <ii1 ' 3 of ihi. 1: ", id1 J uioi'iwmon to union li n ,-c, Ault applies may be chscloscd ' note, .tit',; met ing tire fact th.at it mignt ot ne: .me be entitled to confident:-1 treatment under this subpart) to pi:; sician.-, pbaimacists, hospitals, veterinarians, law enfoicement personnel, or governmental at' ncie.s with responsibilities for protection of p.iblic healih, and to emplo;, ee, of am -urh persons or agencies, or to other qualified persons, when and to the extent that tin. closure is neoe'--aiy in order to treat ill ness or injury or to pi event imminent harm to poisons, property, or the en vironment, in the opinion ot the Admin istrator or his designee. (3) Information to which tins section applies may be disclosed `notwithstand ing the fact that it otherwise m:,,ht be entitled to confidential treatment under this subpart) to a person under con tract to EPA to perfoim woik for EPA in connection with the Act or l e.mla i ions which implement the Act. if the EPA program office managing the contract first determines in venting that such dis closure is necessary in Older that the conti actor may carry out tire wcik re quired by the contract. Any such disclo sure to a contractor shall be made only in accordance with the proceduie and requirements of 2.301ihi i2> hi) through (iv>. (4 i Information to which this section applies, and which relates to foimulas of products, may be disclosed at any public hearing or in findings of tact is sued by the Acm.initiator, to the extent and in the manner autnori/ed by the Administrator or his designee. 2,308 Spcrinl rules ROvcminE certain information obtained under the fed eral Food, Drug and Cosmetic Act. fa) Definitions. For the purposes of this section: tl) "Act" means the Federal Food, Drug and Cosmetic Act, as amended, 21 USC 301 et seq. (21 `'Petition ' means a petition for the issuance of a regulation establishing a tolerance for a pe;tic:de chemical or exempting the pesticide chemical fioin the necessity of a tolerance, pursuant to section 403(d) of the Act, 21 USC. 34Gaid* t.3) "Petitioner" means a pei~.o:i who has submitted a petition to EPA >or to a ptedecessor agency). (b) Applicability (1> This section ap plies only to business information sub mitted to EPA (or to an advisory eom- n.it-*., f ''ed under the Act) by a m su;,p.::t of a peti- ion ; 1 .1 i r -,t, be; n ` tf' i on bv tire pm/.K .it',-:: by LPA of a regulation es- tibh-'hmg a toleir.nce for a pesticide chemical or exempting the pe.ticide chemical from the necv-sitv of a toler ance a- piowchd m section 40S'd) (2) or <31 of tiie Act, 21 U.S.C 34fia'd) (2) ij' h (' m 2 777 roliier tileu thL sec tion, appucs to information der.eiibed by tiie fn.it sentence of s 2.307(b) (mate rial incorporated into submissions m or der to sat the requirements of tiie Fcdeial in feticide. Fungicide and Ro den' u n'. ' -7c:, as rmendt d 1. cv en though c..,n n.. j. in::', jn v. as ciinr.aliy subnut'ea bv- a petitioner In suppoit of a petition, (3) This section does not apply to infoimation g.itlicred by EPA under a pro ceed::'.:; initiated by EPA to establish a tolerance under section 408 e) of the Act. 21 U.S C. 346a` e', -c E.isie rules which apply without the ns- Section 2.201, 2 202, 2.207, ar.d t 2 210-2,213 apply without change to in;o:motion to which this section applies (rii Fficet of submission of informa tion without claim. Sections 2 203 (a) and ib) apply without change to infor mation to which this section applies. Sec tion 2 203'c). however, does not apply to information to which this section applies. A petitioner's failure to asseit a claim when initially submitting a petition shall i ot constitute a waiver of any claim the petitioner may have. `e> Initial action by EPA office. Sec tion 2 204 applies to mfoimation to which this section applies, except that-- (D Unlc.-v the EPA olfice has on flic a written waiver of a petitioner's claim, a petitioner =hall be regarded as an af fected business, a petition shall be treated as if it were coveied by a busi ness confidentiality claim, and an EPA office acting under 5 2 204(d) shall de termine that the information m the peti tion is or may be entitled to confidential treatment and shall take action in ac cordance with 5 2.204'd) (1); i2> In addition to other required provi-ions of any notice furnished to a peti tioner under ; 2,204'e1, sucli 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 ap plies. but after publication by EPA oi a regulation establishing a tolerance (or exempting the pesticide chemical from tiie necessity of a tolerance) neither the Act nor this section alfoids any protec tion to the miormation: (in Information submitted in suppoit of a petition v inch is also incorporated into a submission in order to satisfy a requu emcr.t or condition of the Federal Insecticide, Fungicide and Rodentleide Act, as amended, 7 U S.C. 13G et seq , is rex.iidcd L> FPA as being govtined, vnh respect to business confidentiality, by 5 2 307 rather than by this section; (hi) Although it appears that this sec tion may apply to the information at tills time, EPA Is piesently engaged in determining whether for any reason - ' = information is entitled to c "ufi.ier,i treatment or will be entitled to -u. h treatment if and when this 'ectmn r a longer apnltes to tiie infoiTin'.i.m. n--i fiv) Information delermir.-J. bv E? s, to be covered by this section v. :!1 not * disclosed for as long as this section c-r- tinues to apply but will be made av..y- ablc to the public thcieafter isubje.t ti $2 210* unless tiie bii'inc s furni timely comments m response to i..e notice. (f> Final confidential!:'; rt'.'erw ;un- tion bv EPA Irani of.ee. S 'timi 2 2 7 applies to information to wh,.h th_s lec tion applies, except that-- (1) Notwithstanding S 2 2 () A -1 . u-e General Counsel or hi. uimee. ran than the Regional Counsel, mail hi . cases make the dem ruinations and t- w the actions required b> ; 2.205. (2) In addition to the c rcmi-dar.' . mentioned in 5 2 205-tiil) notice m :... form prescribed by s 2 20.5' f < 2' -hid : furnished to each affected w hw.- ever information is found to he c-r.ih'-d to confidential treatment under section 408(f) of the Act but not otherwise en titled to confidential treatment. With in spect to such cases, the fed'oving =e--- tenecs shall be substituted for the thud sentence of $ 2 205'fi '2' : "With respe-.t to EPA's implementation of tne deter mination, the notice siiall state that 'sub ject to 5 2.210) EPA will make the infor mation available to the public on the thirty-first (31st' calendar d-w after the business's receipt of tiie vuifen notice for on such later date as is ew'bk'h-'d in lieu thereof under puraw-a-'h u> 3' of tins section), unless the EPA lord office has first been notified of the busi ness's commencement of an action in a Federal court to obtain judicial review of the determination and to obtain pre liminary injunctive relief against dis closure; provided, that tiie information will not be made available to the public for so long a= it is entitled to confident: -1 treatment under section 408ff1 of the Federal Food Drug and Cosmetic Act 21 U.S.C. 346a(f >and (3) Notwithstanding j 2 205' g), the 31 calendar day peuod prc.-ci u;ed by $ 2 205 (f)(2), as modified by paiugraph (f' 12 of this section, shall not be =horw-.'e ; without the consent of the budne-s <g) Special procedure jor advance t fidcntiality determinations. SecMon 2 204 applies without change to information i > which this section applies: h"wc\c>, re Information to wh.ch this section api i.c- is voluntarily submitted ii.foimation (h) Substc nti, e in itenct for ! -- ' lr t iei- fidcntiality determinations. Section 2 20 i does not apply to inform men to wiu. k this section applies Sut h e-form me:', shall be determined to b-' c-mtl-'- i to t xi- fidcntial treatment for so long as section continues to uupiv to (ii Disclosure in special circnsiPa 'i (1) Section 2 209 applies to uifoiru ''on to vv hitch tins section applies In add ; a u, under Section 408 f> oi the Act 21 U S C 346aif>. EPA is auihon/ed to diah the Information to oilier pi rsoiis 81-. authority under section 408' f) of the Act may be excicised only in nccoid.ua e FEDERAL 0EGISTEH, VOL. 41, NO. 171--WEDNESDAY, SEPTEMBER 1, 1976 COLORITE 006126 ;;G9is RULES AND REGULATIONS with paragrt ph ' i1 '- * m < > 3' of tills section. <2) Information to which this section applies may be disclosed ' rot hhrtandInp- the fact that It otherwise micht be entitled to confidential treatment under this Mibpart) to a person under contract to FTPA to perform work for EPA Ip. con nection with the Act. v ith the Federal Insecticide. Fungicide, and Redentiolde Act as amended, or icimlations which Implement either such Act, if the EPA program office managing the contract first determines in writing that such dis closure is necessary in order that the contractor may carry cut the work re quired by the contract. Any suc-h dis closure to a contractor sh"!! be made only in accordance with the procedures and requirements of S 2 301 <li > 12) <ii) through (iv). 13) Information to which this section applies may be disclosed by EPA to an advisory committee i:i accordance with section 408(d' of the Act, 21 U.S.C. 346a(d). 5 2.300 Special rules covernin*- certain information obtained under the Ma rine Protection. Ttr-carcli ami Sanc tuaries Act of 19T2. (a) Definitions, For the purposes of this section: <11 "Act" means the Marine Protec tion, Research and Sanctuaries Act of 1972, 33 U.S.C. 1401 et seq. (2) "Permit" means any permit ap plied for or granted under the Act. (3) "Application" means an applica tion for a permit. (b) Applicability. ThLs section applies to all Information provided to or ob tained by EPA as a part of any applica tion or In connection with any permit. <c> Basic rules which apply icithcmt change. Section 2.201 through 5 2.207 and 5 2.209 through 5 2.213 apply with out change to information to which this section applies. (d) Substantive criteria for use in con fidentiality determinations. Section 2.208 does not apply to Information to which this section applies. Pursuant to section 104(f) of the Act, 33 U S C. 1414(f), no information to which this section applies Is eligible for confidential treatment. ph: an;; should a'-o comply with further instructions in application ferms con cerning the ar:.'; :ien of confidentiality chums See 112 203 and 2.204 of this chapter. m" * 3. By reusing 5 30,320(b) to rc^ci as follows: 30.320 I 'O nti* 1 <.ii't!o~ure of mfonnnlii'n. * * a* ib) 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 i 30.235*li *. See r.ho t 5 2.203 and 2.204 of this chapu r 111** PART 40--RESEARCH AND DEMONSTRATION GRANTS 4. By revising t 40 135 (a) and ib) to read as follows: 40.135 A:ailability of information. (a) The availability to the public of information provided to, or otherwise ob tained 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 using the procedure described in 5 30.235(b). See also 55 2.203 and 2.204 of this chapter. ** PART GO--STANDARDS OF PERFORM ANCE FOR NEW STATIONARY SOURCES 5. By revising 5 60.9 to read as follows: 60.9 Availability of information. The availability to the public of in formation provided to, or otherwise ob tained by, the Administrator under this Part shall be governed by Part 2 of this chapter. (Information submitted volun tarily to the Administrator for the pur poses of 55 60.5 and 60.6 Is governed by 5 2,201 through 5 2.213 of this chapter and not by 5 2.301 of this chapter.) PART 125--NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM 8. By reviling 5 125.37 to read a: fol lows : 125.37 Public ar. cs*. to information. Certifications issued pursuant to section 401 of the Act. the comments of all cm emmental agencies on a permit applica tion. and draft permits prepared .Pursu ant to 5 125 37 shall be available to tire public without restriction. The avai.abil ity to the public of other information submitted bv an applicant to the Admin istrator m connection with a permit ap plication or which may be funu.-ned by a permittee tn connection with required periodic reports shall be governed b\ Pact 2 of this chapter. PART 167--REGISTRATION OF PESTICIDEPRODUCING ESTABLISHMENTS, SUBMISSION OF PESTICIDES REPORTS, AND LABELING 9. By revising 5 167.5(d) to read as follows: 167.3 Potioidc* report*.. * * * t <d) The availability to the public of in formation provided to, or other*lse ob tained by. the Administrator under tnis Part shall be governed by Part 2 of tnis chapter. PART 169--BOOKS AND RECORDS OF PESTICIDE PRODUCTION AND DISTRI BUTION 10. By revising ; 169.3(c) to reed as follows: 169.3 In-peelion. ** * (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 EXEMPTIONS FROM TOLERANCES FOR PESTI CIDES CHEMICALS IN OR ON RAW AGRI CULTURAL COMMODITIES PART 30--GENERAL GRANT REGULATIONS AND PROCEDURES 2. By revising 5 30.235<b) to read as follows: 5 30.233 Dhdnuire of information. ***** (b) Any person who submits to EPA any Information under this Part, and who desires that EPA not disclose any or all of the Information, mav place on (or attach to) the information, at the time it Is submitted to EPA, a cover sheet, stamped or typed legend, or other suitable form of notice employing lan guage such as "trade secret." "proprie tary," or "business confidential,'' Alleg edly confidential portions of otherwise non-confldentlal documents should be clearly Identified by the business, and may be submitted separately to facilitate Identification and handling by EPA. Ap- PART 61--NATIONAL EMISSION STAND ARDS FOR HAZARDOUS AIR POLLUTANTS 6. By revising 5 61.15 to read as fol lows: 61.13 Availability of information. The availability to the public of in formation provided to. or otherwise ob tained by, the Ad.mmlstra.tor under this part shall be governed by Part 2 of this chapter. PART 79--REGISTRATION OF FUEL ADDITIVES 7. By revising 5 79.3 to read as follows: 79,3 Availability of information. The availability to the public of In formation provided to, or otherwise ob tained by, the Administrator under this port shall be governed by Part 2 of this chapter. 11. By revising paragraph (o' o' 5 ISO 7 to read as follows: 180.7 Petitions proposing tolerances or exemptions for pesticide residues in or on raw agricultural commodi ties. ***** (c) Except as noted In paragraph *d> of this section, a petition shall not be ac cepted for filing if any of tire data pre scribed by section 408(d) are lacking or are not set forth so as to be readily understood. The availability to the pub lic of Information provided to, or other wise obtained by, the Agency under this Part shall be governed by Part 2 of this chapter. * Appendix A'--Signtpicant (,owvrs'T, Rfsponpcs, and Othkb NO'TEwonrrjT Imt The significant comment* (In foimmru-ly^d form) received In connection with the no tices of proposed rule making dated May SO FEDERAL REGISTER, VOL. 41, NO. 171--WEDNESDAY, SEPTEMBER 1, 1976 COLORITE 006127 RULES AND REGULATIONS r.Gi`19 V'd .'uly 9, 1975. 40 TO 21037 and 2^814 . <(* r'bjeot of confident tal In- f ,>;.'ation. and the rc'.pon'es of the Admin* l^TAtor to those comments, are as follow: 1. commt-m--The proposed rule doe-. hot adequately encouracc EPA offices to use :e<. h* niques that would allow t^me parts of allegedly confident ,al information to be m:;de public (c,g, nickin' the btiMni'.^'s identny or disclosing the data m aggregated form). Rc-^poive--Section 2.202th) ha-, been modi* fled to cmplvi-tze the po's-ibilny of u^o of such techniques 2. Comment--The propose! r\ 'e -'o.fid pre clude EPA from discretionary U;lo-mri-s of information EPA h.as found to be entitled to confidential treatment This !* conti.uy to the public interest and v*ill decrease Ei\V* flexibility. Response---The Admin Mta tor di^a^rees with this comment, A piotiuoil that ? PA could diftelo'e infer rnatmn by exert, me of dis cretion. even if the intormatloh had been found to be entitled to confidential treat ment. would conflict v,Hh the btv-ic approach of the regulation, which Is that biu> me are entitled to know the extent of the pro tection EPA will afford the information sub mitted bv them 3. Comment--The definition, of ` \oluntftr- 11 j- submitted information' In 5 2 2ulii) of the proposed rule la unclear with re-pe>. t to Information submitted in connection .u:h contract* and grants. Response--The Administrator agree* with this comment Section 2 201 (1) of the rule as promulgated below now points out that information which an EPA contractor or grantee has contractually agreed to furnish Is not voluntarily submitted information Sectton 2 201(1) also now states that other information which EPA may require as a condition of considering contract bids, con tract or grant proposals, or the like, as well as information furnished to EPA in con nection with the adnnnisirathm of a con tract or grant, mav quality as voluntarily submitted information, 4. Comment--Section 2 202(d) of the pro* posed rule would require diaclo-ure of an Item of information, if one statute required disclosure but another statute required con fidential treatment of the .same information. The regulation should require confidential treatment of an item of information when ever that result Is required by any statutory provision. Response--The Administrator disagrees with this comment. The first inquiry. In a situation where two statutes appear to re quire different results concerning the treat* meut of the same information, should be an examination to determine whether in fact there 1* a conflict. If there is a true con* fUct, 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 busi ness to the possibility of asserting a busi ness 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 agree* with this comment. Section 2 203 of the rule m promulgated below now requires such a warning whenever EPA requests or demand* information which Is likely to be regarded as confidential. 6 Comment--There should he no require ment that a business assert its bmlue.%s con fidentiality claim at the time o; initial sub mission of the Information. This will tend to increase administrative difficulties and will h-ad businesses either to submit less infor mation or to submit It leas willingly by focusing attention on the .subject of confidnutiaiity. Response--The Admin i-`. rafor dt^sgrecs with Ui." comment 1'PA expe nence ha.* tOiown that when a bu.'fiiic^s submits information which the bu tncij reg..rus ivs confidential but falls to pi tee an appropriate mtrM. : cm the information, ad:n:rfi$:rnive difficul ties in deal me with t ' ,e In forma* urn are likely to refill: AUhnuch the bu-r c-,,s mav a^ume tha* EPA emplojcf*! may afford the informa tion confident:*) treatment, tne ITA o" ee which receive* the information may not ap preciate the need for confidentiality nnd mav allow i* to be pubmffy oi-cloftcd, Even if the EPA office which oriLui.al'.y obtains the information is aware of me biunc-H* !,*<. ;t confident! fitly claim, o'her FPA orffcos whfih obtain access to the imormatlon may be mia.vare of the claim A requirement that buMnev-.rs a'-ert their confident`.alitv claim* at the time of mom1*' :on of the information a ill greatly le=-eu the n-k o: inadvertent dis closure of InfomiaMon eu.iued to confiden tial treatment 7. Comment--A bufine;s which fall.* to mark as confidential an Item of information which it submits to EPA in the future should not he penalized by such failure. It should be able to assert its claim without penaltv at any time unless the information ha.* mready been disclosed Response--Section 2 203 has been revised to provide that a business's failure to as`fc:t a claim when .submitting information to FPA will not prejudice the business unless the EPA request or demand for the Information notified the business of the consequences of failure to assert a claim See al*o the Re sponse to Comment 8. 8. Comment--A buaine-s may inadvertent ly or negligently fall to assert a claim at the time It suomils information to EPA, even though It knew of the requirement and meant to assert a claim Corrections of such error-, should be allowed. Response--Section 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 5 2 203 provides, however, that if, when soliciting the information, EPA afforded the business a fair opportunity to assert 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 5 2.204(c) (1). EPA will make adminis tratively practicable efforts to associate later claims with the information in question, but cannot assure the success of such effort* See also the Response to Comment 6. 9. Comment--The retaliation should re quire a business to submit \i& Justification for ua claim of confidential treatment, not just the claim, when submitting informa tion, This would permit speedier decision* if and when a request for rele.ve of the infor mation Is received by EPA. Response--The Administrator disagrees with this comment A provision has been added to 5 2 204(a) which would encourage EPA offices to Initiate the determination proc ess as soon aa u appears likely that reque*>s for the information eventually will be re ceived by EPA. even though tlivv have not yvt been received This should produce speedier decision* But to require detailed substantia tion of a claim in every case at tlie time of submission of the information Itself would inevitably slow the responses of businesses to request* for information, would in many ca-se* cau^e business to expend needles* r.Tort, and would complicate EPA recordkeeping unjustifiably, 10 Comment--Different formats for busllies* confidentiality claims, each fairly elab orate, should be prescribed for information which is: (A) voluntarily submitted, (B) re quired to be Mibmlfied or (C. ^-ibn.. *d 111 connection w 1th g ran tv or cm.1 -a ' s Response--The Admlnst-ator c -agrt*', with tills comment This would te an - necessary elaboration that wmld ro* ttvo'y assist a bn fine a* but wou.d ad- DvlnUtratlve dfihcultles for El'A. li. Commeni-- In contrast to v'.,*: s c ' - templated by 5 2 204(a) of t c p:.,"i - t rule, EPA should never J:nc,t.`e tn^ ; ftdcntiality dvicrmlnatlon with r?- nect t_> item of busine-* lr*forma#inn v.r.'ii ar.d in- lo-rt thut Hern of information i> t. ' a request for release under 5 V o C 3;2 Re-noti'p--Tim- t'ommei.t u:, - , t:.e r - sihfiity that EPA mav hate rt- - n to d to di''10-.e burl ::(v Inf-,: :r in c non with ciand/n or LI'' tititie* A procedure is r.eened to ft lo LPA, on r.c own lnlttitive, to de^rm ' a w)'$"'.e- or not It m*y diidc e bin" ' i ,. Moreover, the ^, mmuit * adtlc^ If fo'.'o ? 1 would not aIIo-v EPA to i. fidontialitv deierntm n.on piecewrb r-- gard to Information win.fi i*. ce^w n cw .. to be the subject of l.uer reou.c- * uuo,." j US.C 552. thus foicmg bu'lne-- - tc comments under rigid deadlines v her. a re quest is actually receded and Howl: ,, ' * handlimr of response> to rvque-*'* undo: ;> use. 552 12 Comment--Once EPA lias determined that information Is entbled to c: nfider.t1.-' treatment for reasons of bus::is-s con rider.- tln.llty, there should be no aummanc re examination of that determlnaticu because of the passage of time ^urh a r-- examination, with Its axtendent burden o' rcju*tification of the claim by the buMi:-.--' should be contmenced only when there S good reason to believe tnat the clam: o longer valid Response--The Administrator agree* wt:h this comment and the in indeed fimeua:;e f 2204fb) of the proposed rule h.is been deleted As modified, the rt-y ufifi.i-:i pro vides tnat If an EPA office has rev.- n l> doubt the contlntilng validitv cf tuch a determination it will refer the matter n> the EPA legal office for possible action under 5 2 205(h) - 13 Comment--Even if a prior ci^ernn.i- tton states that information of a certain tvp- is not entitled to confidential treatment. * business should be afforded the op"ortu:ii'7 to seek Judicial review of the validity and applicability of that dcu-riiunat.on Respond--Tlie Adnurfinran-r f.yrec* w'.- : this comment. Section 2 204 ha* been :;vk1.- fied In various respects to provide (ha: no tice under 5 2 205(f) will be ci'.en in eve*.* case where EPA propo'es to q.v.lOie Infer- matlon which is known to be ewered by * busineisji confidenilallty cfiv.m, -v, notice has previously been cive1: to tre j'>.- nesi with regard to the same u,formaron 14. Comment--Buslne.'^c.* somctm.&3 c.m- pile or obtain information, at The teque.-* of one Federal agency, only *o have l: r-- quested later by another agency. If tl * agency ftt wlio*e request the irifi-runv:- .. wa* first compiled or obtained has dere-- mined that the Information entitled ro confidential treatment, I PA -l.o-i'.d an o- matlcally honor fuel: a determ nation Response--The Administrator \>n\ ** that although other ace no. e*' dc'ernvu V'.O' ' are proper for coLvicleratiou by EPA, EP\ cannot commit itself to heno- such de:-*:* mlnations in every co>e Differences in s4a*- utory provisions or dUagreement c n.'eritmr application of the law mav rt-qu re uiffe-*: ; conclusions on EPA's pait, 15. Comment--Information should rn-t fiA determined to be available to the public without consultation with a busine^ merely because at some time in the pact the infor mation has been located in EPA flies which FCDEtAL REGISTER, VOL 41, NQ. 171--WEDNESDAY, SEPTEMBEt 1, 1976 COLORITE 006128 V.'g; RULES AND REGULATIONS ucrc , , ..o.t u ' ' e H,o pfi.ce- ceived or that the deferminat:on will a'rculv ne.- cs in on>r to pmuxo'e I uo . *- me.g ' , inform"t'ri evirh files may have been made Mcre.ner, .'us EPA Frees lions under thi" *ubp\rT jia4. c I1','irorr.'I m'1 rover, the infer* mo'e col* fident i il h v bet re J:'. in a* lore ' ccp'` - 23 Comment--The v|e.*s of an EPA < rt ^ ma(;r\ - , . i.rt netua'ly have been di.xseml- daily clare determinations ut der 5 2 ?07). the cor'ern'n4 enti* lenient r>r an :`,v;i r ' t - * n a t <? ti, EPA position on entitlement to c nfFcntM! ness information to confid-m*:''! t, I^or'i<i"r^ fhc Admh'!rMator agrees with treatment of voFous c.v'''Cries of inf rwa- which u'idcr proposed I 2 f * am to tu' tills coiii'r.M.: e<"t;on 2 2biic) hrvs been np- tlou will bc-oTo better d-'lned, v. Un c.nu e- furnlkr.l to the EPA !. ..al on.ce f r propmvA'.v modified )"' ideuce of public quent narrowing of the issues rcmah;lng to sUlcraAon in. issuin'; tm.al determ-' , cf z.icn 1. fi-'m.atlGn may bear b decided, q'l' v *en.d fo ;u.*re.'cc the pre- should rlo be fur'u'lrch to the a'lcc dr-- - cn iht. w' f :;on of w)-;',,-'r the informa tion I, '-1 f-.t, confi.d#,:i*ir.I 1C r. : :i* -- inir 1 1 LMc.ru-,Imvious by Mi EPS - o that m. firm, of tumlne^ In - format lea M not er.l'i'cd to confidential portion of initial determinations on the merits J = -ued under either 5 2 2C4fb)(l) or 5 2 20i(d)ilM ar.ri dccrc..ee the proportion which mrs* be ,,proA`1uura!" deml^ under 2204(d) (1). lu -s for co.nrr.ent -e -- Tho ArimiV. tro/T ^ . v:*h this comrvu-nt nrqu.rrinn- f"'lt " suro v ouid tena to r^ulm j the c ' . EPA ofiK-c's comments in pvh cv,-- qhn'e treatment should be r-:e:red to the i-.pa lft, Cv Tf.t-l'Pl fb.ould r,ot require a t.'so v. ou'd exist a subi* 1..: r! : . cn legal oh.ee. Jus*, r.s are determinations that bmirtCTs to ctr-y the buru^n of substantio*-- msolvini: more than one ..'r"oci ou v ' cf an item. of i:,f<\rir.ai. :: M or nay lip en- inv it^ vA:uoi tha* ru i*,'ni of lnfcrir.at:oti i:iai , ci *cut clircio ure to - "c i-v 1. f : ' - tilled to c j:. fi dei.: ta: treatment Re-no* --'l:.e A.In i,.. 1 ra Mr cl rot; is eri'i'^d to con^de::tia! trettmer* An a-<-er`-.'"r of entitlement sliould be rcq.rdcd r.s \e or at le^st a,t prmaa fac.e, proof by the other More j. or. in c, f , v. j .-e f " l ection o. required (e^. wh^ie a :* S2?iji,, < -A? to r", . t- i. i' .t f taj dc`:-T.* of cn'i'leuie?i under 5 USC, 572 U yendiu-^ 1* i- " * --Th,e ,4`ir,lr.:vr.itor dm-, not be l.kclv that ail L'P \ c,c.c't <? c.-mn'O"'- . . Is net tamuh tt c : . fi,. u.1',d ire r.^r n t, m lieve that s.mh an approach is Justifiable be received by the a.'rectd biuin n *t-- * v. lai c 71 ci-e t e o.i-ir. recedes a nance un }er tlte j* idle Ml interpretation? of 5 t* SC to be used in the prepouv, i vi cf thn b under 4 2 205,fi or iVu: U'e information may 572, An oojectu. e p.mlysis of entitlement of neva'a comment.1; Ihe \clmjni r be entitled to confidential treatment, in the item of inform,-.'lor: to confidential treat however, tliat 2 204;c)ifi) cf the r which enso further inquiry Is made and the ment is required. promul'Mted below requi-er, an pp\ 0" t matter is referred to ait EPA legal office for a 19, Comment--The period proposed for a seek coiilirmntion of its uuderstauihu- r>: final determination. The firxt kind of deter buclnc*' to prepare and submit its com pertinent facts. mination will be- made only where the EPA ments--15 calendar davs from the date of a 24 Commenr--The lo,calerdar-div - ,*( office can ascertain that EPA's position on notice, under proposed $ 2 204fe)--Is too inq period prccnbcd bv propo--cd '22 r .1 tho matter la already clear and. that there is short, K meaningful comments by the busi after a determination adter. e t; a L : 1- nothing further to comid<ir ness are deuced. Problems with directing dunng which the business mav ro^~--? 17. Comment -- Tim ' p: oced ural " denial the notice to the proper corporate officials mi action for judicial review, is too rhcrt a contemplated by S2 2C-iidj(i) us a "fham" and the occasional absence on leave or travel period for the obtaining of suitable cot.u -i that conflict with the nmndate of the Free of key official*, will came great difficulty. and tho prep-ration and filing of dom Of Information Act. 5 U.S C 552(a)(0), Response--The Administrator is conscious pleadings Ah- because it li no* a good-faith decision on the of the problems that may be posed m some Response--The Admirsl-fatcr a-'^cs * .*h merits. EPA offices should be required to ca*es by the deadline. On the other hand, this comment and has mrdified t 2 2^5 f to make a substantive, yeu-or-no decision oh the deadline? for this Agency's issuance of provide a period of ten working d'yft, ra'hrr the merits within the IC-working-day period determinations prescribed by 5 U.S.C, 552 than ten calendar da: r, for int'.iad.c't u-f following receipt of a request under 5 USC. make impossible the allowance of a period judicial re% lew' action 552. All lrformation necessary for such a de such as Co days (suggested by ojie com 25. Comment--The proposed wa;*:nj pe termination, including an\ comments an af ment) for a business to furnish Its com riod mentioned in Comment 24 ao e 1- ' > fected business might be allowed to make, ments, The Administrator has determined long Five calendar days would be vu**v: should be ccnudered at thr.t stage. that a period of 15 working davs (Govern Response--The Admlni tr Aor c... Response - -Tho Adminl trator disagrees ment business days) should be allowed, See with this comment. EEA records c,,.. with this comment. It is recognized that also the Response to Comments 9 and 17. business Information concerning bum-.-- - . every effort should bo made to provide deci 20, Comment--1There appears to be no logi ranging in size from very large c^rp^rat.-:.. sions on the merits as expeditiously a.s pos cal reason why businesses chould be required to sole proprietorship>. Moreover, hccau c > ; sible. However. EPA now has on hand a great to submit substantiating comments within the number and tcope ol the various ;i.v- deal of busine?> Information, most of which a period, of limited length, at some Incon utes EPA administers, the business u has never been the subject cf a business con venience to them, if no request for the in Information EPA holds are not cor.cenM,-`--.d fidentiality determination, with regard to formation Is pending under 5 U.SC, 552. in a few fields but come fiom many de most of this information, the submitter busi Response--The Administrator agrees with ferent industrial and commrrehil t-clds. 2: e nesses have never presented to EPA any jus-_ this comment. Section 2 204(e) has been ac Administrator finds that busme- e? n..t\ .u tificatlon for confidential treatment nor hate cordingly modified, Additionally, J 2204(e) many cases require up to ten worl-i;-; d. - they been gi\en specific notice of the need to and 2 205(f) have been modified to indicate for purposes of retaining legaj couir el, fr 1:1.:- do so. Men cover, EPA does not expect to re that if a request under 5 US-C. 552 is pend iarizing counsel with the facts, determlnii g ceive requests for release cf much of the busi- ing, neither the comment period nor the whether to seek judicial renew- of EPA - g -- iie*a information EPA possc^ces and wUl con post-determination waiting period will nor termination, and preparin'' and filing r< tinue to acquire The Administrator does not mally be extended without the consent of e^vsary pleadings 5 USC, 552 req ,:-t' * >. believe It will he possible in most ca*e* to the requestor, once EP.\ has determined tl.at `r.foi- issue decisions on the merits before feeing the 21, Comment--In order to allow a busi is not exempt from disclosure and . be d -- buslnc-s's comments. Attempts to Issue Ini ness as much time 05 possible for prepara clo-ed. it shall make the inform. ' v-. - tial determinations on the merits without tion of comments, telephone notice should able to the requestor with re--: knowing the business's views would produce be given the business at the time EPA de promptue>j. The Administrator l\' ' uninformed Initial determinations and com cides to issue the notice contemplated by a waiting period of ten working d 1 plicate the handling of appeals. As stated In 5 2 204(d) to the br.qnc^, inconsistent with that requirem: 11 the Herponre to Comment 9 the Administra tor doe-* not believe it is appropriate to re quire new submissions to be accompanied by Response--The Administrator agrees with this comment, and J 2 lT4(e) has been modi fied appropriately 20, Comment--Proposed 5 2 2(J51 ; j ,, ,. proper to thi extent that under a 1 PA poses to disclose information vhvu .to, ,- a business's Justification for Its confidential 22, Comment-Comments submitted by ness is hi the process of Lbt.iu .'-j j .. treatment request. The Administrator finds businesses in substantiation of their bUzdne^s review of the adterge I'p \ <vu:n. - that in mo,t casts it will not be possible to confidentiality claim? may include other 'I*fce 30-day period cMablihed bv tie px- locate tnc requested Information, invite a business Information which itself may be pored rule, at the end of which KP4 would busmen, comments, allow a reasonable time entitled to confidential t'-ea'ment The regu disclose information uale-1? a court had q-- for preparation by a business of such com lation should proMde automatic entitlement dered its continued wlthh'.UliT. . Mr-- - - ments, receive the ccrr.moi.u, and Irene a de to confidential treatment for comment in interferes with the role cf the jud.^.a:' termination on the merits within the ten* formation. if requested by tho business. tem. working-day period after receipt of a request allowed by 5 USC 502(a) (61 for the Suiance of initial determinations Accordingly, In many tatj it will be nere-'-ary to h-uic a "procedural" initial denial, As noted else where, the regulation h.us been modified In various w:i\s to make it more likely either that all information needed for a determina tion will bo on hand when a request is re Response--Hie Adrr.jni.trator a^ree* with this comment, and a new provision, 5 2 205 (c), has been added whhh incorporates the f>ub*nnre of the comment This automatic entitlement to confidentlalry wl'l apply only if EPA po^e^es the information only because of its inclusion in substantiating comments and is grounded on the continuing need to obtain. Hank and full comments from buM- Response- -'Ih Adnaui.-irai a- < , - tially agrees with the comment The p' e ' of the proposed provision was to a business would exprditlou^lv pim-'.-e i -c* quest for Judicial review. A bu-irm c:> i\i merely file a complaint and take no f .-;b' action to obtain a speedy heiring on ?. mo tion for injunctive relief, were there not some spur to expeditious action, iioweier, FEDERAL REGISTER, VOL 41, NO. 171--WEDNESDAY SEPTEMBER I, 1976 COLORITE 006129 RULES AND REGULATIONS 0G921 M * Administrator has concluded that ft ff*ed period of time during which the contractor mu,'?; obtain ft judi^laJ order in order to prevent dtaciosure 13 no; the bt way to solve the problem Accordingly, the 30-day period hns been ruminated from the regula tion os promulgated below, but In Its place b,L3 been substituted language which would result in disclosure of the Information, in the absence of a court order prohibiting dis closure, after a buune.?? has foiled to con vince a court of the propriety of a temporary injunction against disclosure, or in ca^s where, after reoscnable notice to the busi ness, EPA determines that the buuceas Is not taking appropriate measures to obtain & speedy resolution of the matter The sub stituted provisions should adoauately pro tect the interests of those who have re queued the information under 5 USC, 562, wht.o elinunatii c fhe objectionable features of the proposed rule. 27. Comment--Proposed 5 2 205(ft) should be modified to provide that the comment period and post-determination w&iung period should be allowed to be shortened only in cases where disclosure of allegedly confiden tial business Information would alleviate or assist in alleviating an imminent hazard Response--The Administrator a^ree* with this comment and has caused 5 2 206(g) to be appropriately modified 28. Comment--The authority of the vari ous EPA legal offices to Issue determinations, as set forth in 5 2 205(1) of the proposed rule, is too bro.id Regional Counsel should not be authorized to Issue such determina tions for similar situations are apt to lead to differing determinations. Response---The Regional Coun-el should bo authorized to Issue determinations in those cases where they are most familiar with the records and where action by them would eliminate organizational delays. Dis semination of decisions and conrultation with the General Counsel will tend to mini mize divergent results. 29. Comment--The Administrator or some member of his immediate staff, rather than the various EPA legal offices, should issue the determinations contemplated by 5 2 205, S 2 20G, and 52-207 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 rule on each con fidentiality claim and foresees delegation to a staff member Which staff member per form* this function under a delegation is a matter for determination by the Agency. 30. Comment--The regulation should pro vide that the appeal determination must b* Issued by a person other than the person who issued the initial determination, at lea^t where requests under 5 U S.C. 552 are con cerned. Response--The Administrator agree* that the same person should not issue both deter minations but believes that this separation of functions should be provided for by the General Counsel, acting Under f 2 205(1) of the regulation. 31 Comment--Section 2.206 of the pro posed rule should be extended to allow ad vance confidentiality determinations even where the Information concededly would not. if submitted for general u^e by EPA. constitute voluntarily submitted informa tion Response--The Administrator disagrees with this comment, The purpose of an ad vance confidentiality determination is to al low EPA to obtain for its use information It could not otherwise obtain Advance confi dentiality determinations present problems for EPA (See Comments 33 and 34 below.) and thus, should be employed when other procedures for determining confidentiality aie Inadequate. 32. Comment--A mechanism should ecl.it for determining whether or not information would be voluntarily submitted information If submitted for general use by EVA Response--The AdxulnLstrator agree-* with this comment, section 2fii>6 has ixea modi fied to allow such determination^. 33. Comment--Bu iness information sub mitted to an HPA kg'd office for the pole purpose of obtaining an advance rohfi.ientl&iity determination should not be rettraded aj an "agency record1' and, If the determina tion holds that the Information is not en titled to confidential treatment, all copies should be returned to the submiuer. even if a request for release of that information is pending under 5 U-B C 652 Response--Hie Administrator disagrees with this comment. AJhough definitive Judi cial pronouncements on the subject are lack ing, the Administrator believes that there is a substantial possibility that information held by an ELPA legal office for purposes of examination In the course of issuance of an advance confidentiality determination under 5 2 20G would be held by a court to constitute agency records under 5 US.C. 552. Tiie Administrator believes that the Isaii of whether such documents would constitute agency records should be determined by a court (LTA would disclose such information only pursuant to a court order.) 34. Comment--The regulation should pro* vide that EPA should treat as confidential the fact that a business has submitted an Item of information to EPA under I 2,206, Respbn.se--The Administrator agrees with this comment insofar as it asserts that an. EPA legal office (or otner office) should not voluntarily disclose such ft fact. However, the Administrator is of the opinion that in some cases where a request for disclosure of rec ords concerning such submissions has been made under 5 U SC 552, it might be legally Improper to refuse to disclose such a fact. No change to the regulation is deemed neces sary with respect to this comment. 35 Comment--Class determinations, as contemplated by proposed 1 2.207, should allow prior comment by ail businesses which m'cht be affected by such a determination* Reeponse--The Administrator believe* that in many cases such a requirement would preclude issuance of a class determination, since the Identities of potentially affected businesses might be unascertatnable. Section 2 207 has been modified to clarify the purpose and effect of class determinations. (See Re sponse to Comment 37 below.) 35 Comment--An EPA office should not be allowed to make as=erted)y confidential 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 Response to Comment 13 above and the clarifying modifications which appear as 2 207(d) of the rule as promulgated below. 37. Comment--Various terms in 5 2 207 as proposed require clarification bo that buslaes^es will know what constitutes a "com mon fact situation." a "class," etc. Response--The Administrator fumoes that the proposed 5 2 207 could have been stated more defintteiv, and the section has been rewritten to make more certain its purpose, applicability, and effect. 38. Comment--Certain of the substantive Criteria proposed by $ 2 208 are either Ir relevant or else impossible to sotbfy. Specifi cally, the provision In J 2.208(c) of the pro posal concerning the "roa.sonablcnes.V of a business claim U unduly vag-ue, and the reference to the "practices of other bu*tne^es" is irrelevant. Response--The Administrator agrees with this comment. Section 2.206 has been re written to reffect this and se-.era! other change* auimosted by comment.*, as well as to conform the section to other flections m which procedural changes hav- b^en made, 39. Comment--proposed 1 2.203(e)(1) Im properly interprets Judicial opinions co.icernlr.g the proper criterion of ccmpi/tltiv* harm. .Specifically, a busiue s -houid nohave to demonstrate either that the likeli hood of harm la "substantial" or that the harm which would result from diaciysure is "substantial " Reopens*--The Administrator acrees in part. The decision in ` National Park* & Con servation Assn v, Morton." 493 P 2d "*"> (DC. Ctr 1374), requires only a likelihood, not a Buljstafitiai Ihellhcod. that a busi ness's competitive p'.quoh v-1:i to iub-ra:.tlally harmed by Government d: *uc v.rs of an Item of information The ?ectfi u has been modified accordingly. 40. Comment--section 2 2i'3 is wrong in concerning lu-elf with harm to a tuilnras* competitive position: the ;e*t should ue whether the buMne.s* disclose? the inform;* tlon, not whether the Government's dn* closure would harm the business competi tive posture. Response--The Administrator be'leves that the "National Parks" case cited above pre cludes EPA from taking such an approach and that the test as now staled in \ 2 208 In the proper one 41. Comment--The regulation should list spcclhc categories of lnformat'on which are, and which are net, entitled to confiden'Ki treatment. Response--The Administrator doe* not be lieve that It U now possible to l^sue compre hensive listing* of the type urged by the comment. While it l* desirable for businesses and the public to become aware of the type* of information which EPA believes to be en titled or unentitled to confidential treat ment. this cab best be accomplished by is suance of determination* under I 2dJu> 5 2.20G, and 5 2.207, 42 Comment--Section 2,208 should not re quire ft business to "prove a negative." I e,, it should not have the burden of showing that information 1* not readily obtainable by others. Response--'The Administrator agrees that businesses might find it extremely difficult to show that another person cou'd not ob tain information. However, it is clear that the availability to others of ir.fr rmation i* relevant to the determination. The section has been modified to eliminate the burden on the business of making an affirmative show ing in this regard, but continues to require EPA consideration of the hi-ue 43. Comment--Some information a busi ness guards Jealously may nooe*he.esa be available via court-ordered discovery Ln a le-Lptl proceeding. Availability via discovery .should not negate a buMne^s'a confidential ity entitlement. Response--The Administrator azrev* in part with this comment Section 2 203, a* promulgated below, explicitly treats this sub ject, and differentiates between information which would be routinely discoverable and that vhkh would be discoverable only upon a showirg of special need 44, Comment--There may be ^'.nation* la which althourh a business has taken no Mep* to preserve the confidentiality of an item of information, the information ho* cot been disclosed out=ldo the buslue* In -uch situa tions. the information should not be ineli gible for confidential treatment. Response--The Admlukt ra`or d'-acree* with this comment If no steps have been taken to safeguard the tnforma-.U>n. the im portance to the b\i = lnes* of confidentiality is at beat questionable and the likelihood df prior unregulated disclosure is great. FEDERAL REGISTER, VOL. 41, NO. 171--WEDNESDAY, SEPTEMBER 1. 1976 COLORITE 006130 G022 RUlE5 AND REGULATIONS 45. Commci.'--In many ox.'-es, dls^o-ure of one item of iiifoT 12. -,v K:i,Tt v.'Z cause sv.b't amn>) com petlti^e h\rm to a t. nesft, But the cumulative erect of disclosure* of f-everal related, roeminvlv unimportant Items of information could result In gTtat competitive harm Ibe-ponse--The Administrator is conscious of this possibility abd advises that an item of bur)ncis In/ormati1'n hi cot be deter mined to he ineligible for cordVkntia: treat ment me:el', bei-iv-: it dr-h^ure v"' would rot directly csuc f-ubvujtiai co:upetlt lvc harm 1 he te-t is w htuner d;c ko4. : e of the item of Information would make tub* stantlal harm to tnc business -> competi tive petition li :l1`: 40, commcti--bitclo'1 rv under p'op'-'Cd 5 2,200 to C< r.."e-s t:.e t < nrtrf-llc* Ciroo-. 1, or othnw FAdera) a' f w w . *knu'.d t.` 1 w to the awcr.W' n o: T w ^ f. V wed nu ,r.e4-( P.eap'-'n-.e--F.\Cc-;;t ?. hw-c legitimate r<v*<v.s exist for withholding from bu^me^-c? aoc fact of such dude .r - log. vhorc hi'.v enforcement w,>u.d 1 * hampered j. tue Ad ministrator adviJ-es that there is ro c-bjoc- tion to informuid a bu-int-.-*s that Infoi mo tion has btmn dktlved h> other branches or agencies o: the Federal i uvfnur.cnt How* ever, automatic not lin..a* on to a buriuo-* each thr.t- such a bivlo.-une ocemred >-ou.d create ftdniinLtratr.e borders for LPA of fices which the Adrn'r^'rator i.m;* net to- be warranted, bection ? 2U-) of the reputa tion has been modified to provide that FPA offices shall maintain a r(tord of di'f tamuts nf busmen lmormation nmao to Centres-*, the Comptioher Genera', or other Fcde-al agencies. Such information, insofar t\> it per tains to an a:fcetcd business, v.\\\ be dii- closed on receipt of wr.tten. request of that business, except where legitimate riui'Cr.* exist for withholding it. 47 Comment--Disclosure of business ln- formriticn ehOuld not be made to Con-re.r, its commit feew or ,iuh ,u,;rht:e.', u:.. , a Congressional subpoena covering such Infor mation has been issued Response*2--The Administrator db-arree* with this comment Duly authoris'd requests from Congreso, committees, Its subcom mittees will be honored, and the requeuing body will be lnfovm<'d of u: revived rouft- deriti:d"~ claims and of determinations of entitle:, -t to confidential treatment 48 C.'in.TPr.t--Section 2 210 of thp pro posed rule appears to rllow FPA to fir4t de cide whether a requect for buMne-ta infor mation would be denied under subpart B, and thereafter decide whether the informa tion would be wphhr'd for other rca<,'ms The rc;:ulftt!on should provide for parallel co'fidcration of all bases for with holding information to avoid delays ha re- FpC'- ' e to requests under 5 lTSC 552 Rc-'poire--The Administrator agrees with thi** comment, Section 2 210, as promulgated below, has been revised accordingly. 40 Comment--The re. ulatlon should state pcnalt.cs iir improper disclosure of business lr'orrnat'on bv LTA employees. --'I ho Administrator agrees with the ow eral tetv r of this comment Section 23 : `he rc m.ation as promulgated below h's 1 e. -i re\ r;:in to remind cmplovecs of tie r;;m'"\l 1 <.vlt' rs for willful v!.'!:Mon (.f apnh-. ah t ..t'.s and to inform empirics imp'"i'per u>elo--ure of business lniorm.v.,' u na.y be grounds Jor udvortv person nel a ' mu 'A <v'rnmi nt--'1 he r<"ul.iTiun should prr*vi'.i'* c'vt'ihed rv\'s fee- the hruaihug v, :,/tiu l l". '>f 1 h ' Lif. r- a' io i lb - ;> m e--1 j o AdhU lN ' r.iior d>_cs i ,ot t e- Jlc\e t/i.it a r<. g.,' *ti <n is the im, ,t f.hwtmo wa\ In 'A Mi h to i ~ 'e m: ;i.i tr'ce cunurM1 the d<`aUs (>! luihOLlnt; the ta:ii>ti.s 1 mcis cf business tr.f jrm ltiou pc .-.'.ed bv various ETA oJTk'Cs. However, a new J 2212 has been addtd to the reputation aa promulratod be low, vMd-i wjp aiirv the designation rf "oonprol < hjCes" vh'/u have exrl\_ivo re* pponi iciiltr r.r.d authority to dl^lo^e cef- tciin. catecone^ of ba:Uaess information cut- side the Alency S'urh control r.fhccs, if and when dos'gnated. sl-ull ftlv> raaintai'; ir.for- mat ion concerning eo:i-fiCi''rt!ailty cl*.'iwc, dfPrntlr.A'ici", find pvrUuei.t m .tv- rla^ u: d^'* thi- subp .rt with rv-nc-.-t to the *- i 'ornuh.i' for which they are M Comment--The rt dilation should pro- v.de a meoha-i^m by which a biiuae^ i:ar de^'prutte an rw'fnt. for purpe-e^ of receipt of l.'.qi.irles and noticed under the subpart In erde:' to ie^eii the Kr.e'hhood of delay in re- '*p..;'.dir : to i:u:'il"lcn and notices (espoctahy ;> - ` ' ,-< ' mge, decentra1,7-xl l''i- tt<"-p-v-- The Adm1, acree^ v/ith th,' c'.`-i'rj.et't A rc-w ! 2 213 has N*en fifided T a The rr -uhi:'on rTomu'.LM'Cd belc.v, de- r-/",.oi:ij ho-v a t I'-iiiesa n\oy de-igr.ate one it* oIe rev'-csontatno for fuch purp'"'^ 52 Cornu (mf--The basic deiiPHlon of ''em -t-ion data ' r*s pror\o<ied in ? 2 3011a) f2) 1= t'-o hr--<d It should not Includo de-ncrip* la:;-, of 1 bakeware " nor the '`details of ft corfidem.al pro-re4-5 r. it is be'ng practiced M Pe-pon`-e--.it S i-t'possible to make intelli-'i nt rcf-^Tr-nre to data concern lit? an emi>sion of a aub^'emc'e into t^e air without refc'ru g al o to the nature and location of fhc source cf the emK-:on Section 2 80lfal(2) iu\' been modified s'lchtlv to emphasize that infoi m.-.tion concerning the nature of the source ls emission dat-a only "to the extent necessarv" to identify the source and to dis tinguish it from other source* 53 Comment--By including in the defini tion of emission dats `'information nece = fiary to determine the emissions which & s*. hviard or limlta4-!'-!! permits a sjuice to end1. ' toe prep ed rczuiation would in ?omo ta.se* rt-cj\iire the disclosure of various in formation pertaining to stationary sources whtah a bu.Hine-- may wish to maintain in cor.dder.ee, .such cs raw material feed rate, production rates, or byproducts generated. This is improper and goes beyond the Con* gros-'op al intent Reipou'.e--This comment Is based on the fact that in some cfvces, Individual emission sources rrc subject io emission limitations expressed in ternas cf units of pollutant that may be enaii'cd per unit of raw material pre-cf t 1 t`r per u".:t of production In older that the actual errbrtons during a period mav be c-'^r-uci r.'.th the allowable emis sions, It is ne'ecaary t>> know' how many In put or output unit: were processed bv the lacility durmc t^e pr'-'.od In question Ofherwl'-e, ft person would not ki.ow whether or not a source had c rmpiied w ith the cai/ ion limitation. In Section 110(a)(2)(F) of the Clean Air Act, as amended. 42 U S C lS57c5(a) (2i(F), Cru-_ r<.4 > required that emis sion data foTirernir: '*atioi.\ry sources he eorrr' . u;i ap^'u::.`/c en ! Ucui cta'id'-mds or hmita" '-_i ar-d '? '.vde a.allahle for puh- r z I'.r'T.'t' " 1 \ '''"``.i-r p^'.vi ion requiring t * v'1'"cr.t 0','a be ` rrt,a*e'.l tv r.pnliraMe r.` ir.'.'-.Is o'- Pm,'a ' ', !s found in Fec- t>m u H'bi o' f'se r,'ta-a1 V.P.tc- PTp.'ion. C--i.tr' 1 Aft, 33 V'C I5l8fh> ) T^'r \/j- nh' i -"a`. r ,.uc:s r>. -,t Coti-to-? lav rrr- mi 'h la n tu-,.'o eo-irf.l that members of the roVe i>e aVe to 1 now not rn'v the r."'u'l f")!5- mu ' - :*, but al^s the e;:i!^- o11 s1 ih'i i1'/1' : :t`b'e r-,^"riaF(!s furl I'nil-'i* ' :i- Aoro-ciT>"- the AdmliVira- tor ril'-e refs with the comment 54 C niment -- The definition of emlMnn d.',T:v huuld lu h.'Jo data < oiu ermuy pol lutants which result from emissions but whkli are not released directly from the t-ource, 1 e , data concerning eub't-aru'es , nich xit In the air iw the direct result of the emission from a pource of one or more other Aubstance*. Fe^ponse--Tl^e Administrator arrees with t.hta comment. The regulation ha^ been modified to Incorporate the substance of C..' com.ment, 55 Comn'eni--rmi^-lon data Phon'd r. t be defined to Include data concerning "con- tcrsi-)!ftte<t" emission sources Response--The meaning of "e"'.!'- * r. data" is Significant because the Clean A`* Act requires that emission da*a m,'.. * he made available to the public nruw'to * a- iu't any allocation that it is ent't'ed ^- fidential treatment Tie A.drr.'ri,:'.:'c - l.etes that the purpose cf tn'. * .: disclosure requirement !s to crah'e rnA'' "-'V-i of the publ'c to Inform their. !r r an informed ha*.'-, m rrccecdm br. - - >. ftanda.rds find hniitations under t,"'i A't ;.re enforced, The defluition cf tuw. n ' - should furtiicr this purpose, Fectio''. 2r,"'l (a) (2) lias been rewrii+en *n '`uu? ^',clearly the relatioushin bctwoM u tlie pur- to be served bv dis-iomre cf da'.i auq t\ coverage of the term ''cmnV'U dev ' i1 * reference to "contemnlated" th,v>s j, , been eliminated as unrecc- carv, As nr. m ga`ed below, the defim^on of em.-\ :or. d.*a includes data concerning actual (coe:.er.ccd) cmiisions. data needed to calm iw emi^'icns that were alVrvable under .vdardfi or limitations (to determine ccim 1 ance), and information iiecet*car7 to the identity and location of the source. 5J, Comment--Titcrc should be no crclusion from the definitjon rf cm!1- o.u data of in formation concerning product *, net h-" c. s, devices, or Installations merely becau e `hr/ are developed and ufted solely for re c;: h purposes Re^pom-e--The Adrointati at or d'.-a "" with thU statement In larpc j. rrh b:' . the exclusion appears to be nec.'.a-y l.u der to encourage research, However, the \dministrator Is of the opinion that informa tion should be di.oolcced to the event nerr-*sary to show7 that a source is (cr is n:-| complying with applicable sh.n dards rr limitations, or to substantiate the v.wy of an existing or proposed stand rd rr h-ultatlon. The definition of emivion dam L.v been modified aopr-:priatciv 57. Comment---Tlie "iJ^utroh" c\ch -! n should cover even full-s.ale i:. t.v.`. not Ju^t laboratory- or pilot*'...'e i:-.-'... tious, 1/ in fact it Is u^cd euk far t>. wT. pm pa-e-s. Response--The Admlmstrutur ::e. * w.,.i this comment, and live rule as jwomu' ..-j belovv has been appropriately ii;i - i T F>iould be rioted, however, that r ii rat r.ntic;patod that many full-wtle hi .. a- tions will be found to be j''d * le';, f-r rc'c^nlt purposes. For example, a f industrial lm.tallaticm which 1 i..j p-j cont-Jbutc i>r"duc`:vely to the oc.n.'; ni a bU'invis tvou'd not be r" . vit i ,' r.^ on)v for research purp.1 \r ' the i.,- jtah.uion Is rhown to f",.'.iiu . \_i : fact Contributing to the bus..,*' n <" 53, Comment--Ii1 fo-rn i t1 u * \ - product - be.nc readied T r l-.*- '!nr; r ,,-'o e. market (but not vet i:i trod\:. < ;i a.,2 ft r:nulc-n pertain1* ^ 'o on ; - r<. w .. filmed at into to, lmr oxlat: r: c : r< > i : t *. c : * market should not be ar.t `i,v;i v ;. p.b'e f-t conMdentifil trea":'ej : : * y Jhould be excluded frem the c> ' <f Cuni.slon data J?e>*poti>e--`I he A(inii*"'-,r.T( r a r> - in part with thM comment r-- <- <t -u 'v loformation mu t lie av n'..h;e to ti e 7 to the extent nccc.asary to indicate t> e Source's compliance or non-ompliaiue with federal register, vol at, no. 171--Wednesday, September 1, 1974 COLORITE 006131 RULES AND REGULATIONS r'v.'.i'* iM#* standard' or limitation.*, or to j `Tin:t tijA to ctenffmatrate the validity of fan PtbMr.^ or proposed standard or llmitruten. The definition of emi^alon data has been modified according?. b). Under proposed 5 2 301(e) (substantive criteria for cor.fictent'.M t-eatment), emission data should not be excluded automatically from clteibtlltv for ucb treatment. Response--The exclusion In question L* specifically required by the Clean Air Act, sections 114, 203, and 307fa). 60. comment--Emission data should be dl'vio;ed on request, without any Consulta tion of the business vvni.'h submitted it, to avoid delay Responr-e--'While the Clean Air Act clearly States that emi-.sl.-n data must be made pub licly available, it dov* rot deline *he bound aries of the term, The Administrator find* that It Ls not unlikely that one or more busi nesses may disagree with the definition of emission data established Ln 5 2 301(h)(2) anti further finds that the business a pro cedural rights (submission of comments and opportunity to seek Judicial review) should not be denied merely became EPA may characterize information as emission data 61. Comment--Of the information to which. { 2.30i applies, only those "trade secrets" which ore "methods of proceote*'* 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 doe* not agree with this comment. The Congress sup plied no definition of the terms It employed, and (as noted in the May 20, 1975, explana tion of the proposed approach) the Adminis trator has been unable to conclude that the Congress intended to require public dis closure of the information which UFA must obtain from businesses in order to develop standards and perform its other emissions. Routine disclosure to the public of all that Information would profoundly affect the business structure of the Nation m ways that have nothing to do with the purposes of the Clean Air Act. 62. Comment--Proposed 5 2.301 (g). per taining to disclosure of information other wise entitled to confidential treatment when the Information ls relevant to a matter in controversy In a proceeding, should allow such disclosure only in those proceedings which Involve a public hearing, not 1q in formal rulemaking proceeding. Response--The Administrator disagree* with this comment but recognhrea that the proposed rule failed to properly acknowledge the differences that exist between proceed ings which are conducted on the record and with parties of record, on the one hand, aud proceedings of an Informal nature, on the other. There can be no limited disclosure under protective arrangements ln an In formal rulemaking proceeding; if informa tion ls to be disclosed at all, it must be publicly disclosed. This and other differences between the two classes of proceeding have led the Administrator to conclude that there should be separate procedures to be used in informal proceeding*, and the regulation has been modified aecordlnglv. Separate proced ures have alro been established in the regula tion hh promulgated below for dNcio.-nre in on-the-record proceedings when disclosure a proposed by EPA. on the ore hand and by a party to me proceeding other than r PA, on the other, oh Comment--There should be no disclo sure of the tvpe contemplated by 5 2 301(sr> unless the bu-dne's has the rivht, as part of the proceeding, to argue against di..closure. R^pon-e--The regulation ha* modl- fled to make clear that a business has this rlrht. G-1- Comment--Information should be disCloeable under proposed 12 301(g) only If it la actually found to be relevant to a matter Ln controversy ln the proceeding. Reopen,>*0--The Admir.'-ffr.itor agree* with this comment. and tie r"_u:i;llun haa bet n modified appropriately Co, Ccir.men:--Informa*ion should be dis closed under propo-'-ed J 2 301 (ft) only to those parties who have a * butinesj or fi nancial Intercut ln tne proceeding" or tho_e who show that "the pujilc interest would not bo adequately served by ERA1* representa tion." Response--The Administrator d!rSLTce* with this commnnt Th* .VmlnL-trator does not believe that the pD-'tedlngs will pro duce the most broadly b.ved and useful re sults if relevant liiformmon Ls routinely withheld from parties who lack a biL.lueiS interest and who may have a different per ception than that of the Administrator of where the public Interest lies. The criteria for disclosure to parties adequately protect against frivolous requests, 66. Comment.-- Proposed 1 2 301 (g) should prescribe the protective measures that should be required, os a condition of disclosure to parties. Rospon-,e--The Administrator believes that* trivc-n the variety of circumstances that arise In different proceedings, it Ls Impossible to anticipate all problems. Details in ths regard arc. it is felt, best left to the sound discretion of the administrative law Judge or other presiding officer. G7. Comment--The proposed rule's 10-day waiting period for the comments of & busi ness on the proposed disclosure of informa tion it submitted will unduly delay many proceeding*. Moreover, where a delay in re leasing information does ensue, in appro priate cases a corresponding delay in the pro ceedings 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 date should be listed os another basis for shortening the normal 10-day com ment period Response--The regulation, as promulgated below, now eliminates any reference to a fixed period for a business's comments and instead relies on the discretion of the ad ministrative law Judge or other presiding of ficer to set a comment period reasonable in the circumstances. With respect to suspend ing the proceedings pending decision on a request for information, this u also a matter that should be left to the presiding officer's sound discretion, 68. Comment--A business comments on a proposed rule ohould not be disposable under proposed { 2 301 (g), because if a busi ness believes its comments might be made public over its objections, it may refrain from submitting the comments, Response--This comment may be based on a misunderstanding of proposed 5 2.301 (g), which ls concerned with certain circum stances under which any information to which } 2 301 applies may be disclosed (Pro pped > 2 301 would apply only to Informa tion the produc non of which UFA may legally compel ) The AUmlr.i'trator does not believe that mere Is a boia fur discrimination in trvitment of infcrmd'ion bated on whether or not FPA obtained it ln comments in a rulemaking proceeding, 69 Comment--Contractors should not be considered "authorized representatives" under 5 2 301(h), the legislative history of the Clean Air Act and Federal Water Pollu tion Control Act (FAVTCA) indicate that only F.PA officers or cmplovees may be regarded a* authorized repre>entAil\es p*,pn\~f'--T. Ad*r*' '`Vfv*.*.T <j*--*,, with 'his cor,it s u ' % ,w . tory pvrtair.iiu: to the rwVC*i which jr cates, with t- 'r'r1". te t i F'.'. P;'\ r-c:' .-a 303ia) flu whioh the to-"', 'a ` --'vi re-vutatlvo" Is u*<-d In a differedt context a'd ln a .scntAntlcaffy differ rt m'."ner) only Lr-A off.cer* or * :-:r,v a-t vs "authorized reprvtentattv ter t p jv^e of C' ercislr.q a rteht of er.'rv onto tain private premLte*. But in `-'`Cte'n 114 'i, 208fb) and 337tft) of the Clem Ah- A:*., ar.l section 308(b) of the FV.TC A !*. r-puv d .r that by Rutlioric.ng birch ure to ; ,-n employees, or authorized re,tee'-^'^.tat:vea,* cf the United State* (emphasis added!. Con* g-cos meant *om.e*hlng n -t t*,xn Cis lo -e only to officers find empIc'-'C'-v It aiio n> pears that me ! v.ri tge ln t,ie ; . e i. to^y of the FWFCA concerning n/hts of * ntrv was ba^od on a reference to 5- * ' . mi 2'3 %) of the Clean Air A:i, where the rl -r.t of en try l* explicitly given only to c,,.'.rs t r enplovees, 70 Comment--Informatim '.".`uld be c\ closed to an KP4 co:itra'it`'>r i.r.mr pr^oc- d 5 2 301(h) only if the affecitd on i..e-4 puj its prior consent Reiponse--The Adminl: "r.ff-'r with this comment, which wou'd hav -h effect of nullifying disclosure to c^titra'" -m (the rule elsewhere state* that informal. ,a may be disclosed If the busings con*ehta > Much of EPA`a mission must be rerfo-r ' J by use of the resources which contractors ofier. If the comment wr-* adort**d. busine 1-5 could seriously hinder EPA efforts simply 0/ refusing to consent to disci0 -.ire, 71. Comment--information should be d'^* Closed to a contractor under propc-ed } 2 3 .1 (h) only if the affected business has been given prior notice of the contemplated d.sclosure. Response--The Admini-trator agrees that prior notice rhould be slven ex.-e^ff wh^n 'o do so would impair t)ic wnrkir.z cf an EPA program. The rule os pr unu.g 1 '`lew r a? been modified accordm / 72. Commentr-- Inform:-,'to1.1 'h - .\i be -- closed to a contractor under prr,p:ied f 2 391 (h) onjy if affected business are reasonably protected by the arrangements between EPA and the contractor Response--The Administrator 'jree* with this comment, and the rule oj promulgated below has been modified to make mere specific the contractor's undertakings, to re quire recordkeeping by EPA com-emln? dis closures, to require that the contract rec<-it- nlze explicitly the third-party L -'nefic |a~y status of the affected b r^s-i-z, ro require EPA to determine that the d.'Ni^ure nece.vary for the contract wnr.q and to re quire JTFA to give affected pr, - notice in mov. case-* of d'.^rlovure of in formation in which they have an i: 73 Comment--Before IT*A inf-r* tnatlon to contractors unde: prc^r^-l ; p (h). an Investigation should* be made into any possible competitive confi.it.`s of In^r* eat the contractor may have Response----The Adinir.i ,tra*o: "Iff.*'.- z'; the protective measures outlined in t:.e * spon.se to Comment 72 Jhouid ade-qua^-.v protect affected bU'.ne-.'H* in rr -t c.v^c-*, J notes that more s*rin, 0 te ' *. e r. ures mav be t.uxfa m concctivb. Ual conlrac'wS 7i. CommcT,'--I"fc.r`v ci 11 -z 'd 0 -- dosed to state or h<a) rover L; t, clea under prupo-i-d z.'i'.h) cr.iy if ;l. affected business ru1 ei 1 ^ or :f the = , e <-r IochL agency acrcca ta.vt i.ie laa-'-r-s1 1 shall not oc fur'uer di.ol- -\i 0: 1 iff.. ,t or local public lniormff'on a.'-j l. all t apply to the information, Response -- The Adn1lnl.'tra*C'r tliM.-eee with the romn.cnt Many of the s'-ru'-a FEDERAL REGISTER, VOL 41, NO. 17)--WEDNESDAY SEPTEMBER 1, 1976 COLORITE 006132 RULES AND REGULATIONS flOJl 0 v , r/ Z '-1' U-.il_:i iwcfh Ll'A and : 4t',: ... n h-C P'* |T.*on C'-'U'.'.il aceurtoq, Tlj.'J kiicij -tjUit' i cl ten Assign ci_`- nlficant re you :_filt!r,s to find ioc.J agencies. I. PA cl^iret to be able to provide t uch agencies, v.y.h rui.K-on U has whHh would bv u'cful t<> ttu::.. Huweter, the Acl- ir.in)cit:iW r i euogni/us tne fact that the other j.; y', i ,;ons (-1 this tubnb.L woo id af- f,\d [ <y Poj'-c'*: 'ii to if cJi-.cP,.^ > i. ;:.: Tma'i n *'> `'-.it? .ruci iO-i.ii a :u:kvj<_s v.tre made wn.,out a;te:iTr>:i to the tru-iimcnt tii.it would vf a'. <!U(J \ '> such information by them, A.-cor-..u_.y, the ru.e as promul; ;;T cd below has bLOU :u du.cd provide that lia*c: mat!uii ;.i.'V ut o.'Lju 'd lo state or fiy a1. under $2.iulrh) onl7 i: t.w w1 < r .wH_u\*y V..-CU cu'.lci ifowlred t-*' to ciatlr-r the riU'V- inuiion. cr f `.-it state or fi'-efimy h^s t.uo'v:: io i-'PA s tlut me infvi n;nti<>:. will be adequately protrned 75 Co.hive:.'. -- W.r.uus cvuun.e.iter-i raised the same points with respect to the definition of "eihueni data'' In proposed 5 2 302(a)(2) as tl.ev raided with respect to the definition of "emission data " Ee.sponre--See Ht?tx^n.,tes 52 through Cl 76. Comment--Various cuinmenters raised the same points with rttpect to release of information relevant to a matter In contro versy In a proceeding under proposed 15 2.302(g), 2.303(g), and 2 304(g) as they raised with re' pcct to proposed 5 2 301(g), Response--See Responses to Comment4- C2 through 63, 77. Comment-Various commenters raided the same points with respect to release of in formation to authorized representatives un der proposed 55 2.302(h) and 2 301(h) as they raised with re.->pcct to proposed 5 2 301(h). Response--See Responses to GommcnTs 63 through 74. 78. Comment--Proposed 5 2 307'.''), whhh would have established special substantive criteria for use ih connection with Informa tion obtained in applications for registration of pesticides under the Federal Insecticide. Fungicide and Rodenticide Act, as amended (FIFRA). 7 US.C 136 et s*q., would exceed the Administrator's authority and violate 7 U.S C. I36h. Proposed 5 2.307(g) would deny confidential treatment to certain categories of research data and related Information, but 7 TJ.S.C. l3Ch. It is asserted, requires confi dential treatment for ftoine of that data Confide* ttuihy determination* ahould be : tde i-n'y or. a c* o ty-^sv / ba:s Ev:p..' -fi--'I .0 A'.. .1 'jirator disagrees w id tu:* f( nine: t .or, for reasons uu.-r.ared to the or-m the special sub- c r.'L-.-ia hue bern dvkud fro.n J 2 JuT h.^s hoc i l bCCjU-e, under PI 14-140. C.'.w.T.ie: 28, 1`j73'. S3 E-tat. 7,*l, ire Ab'j-.tril`tra^r may not promul- g .io :cr u'n* <> ^ \ in li, in plc:r,e..i 1-ir'HA wdliou; fir.-t suba-.,;*,i the rc^u'ATions^ to d' -.y ih.i: w .> ! 1 . in,' l:i ohi.Tliilng .'.r h r.'Uf.v. ' ,i` y ro, .'`c :ti cjuceming rui)- -iji/l.c or. cr.,v hr-'.c bc,,vi cielc*cd. (On 1. r> 5, U7G ib.*- General C'-u:f,`-i bsued a:; 1 *--prL .`..u tie t urnor.ai .on concern.i.g In u.,1 u n n to i'.u* oha* gf s to the proposed T. n vb,l:n arc o - cd in the Comments ,-v, ! Pc- )o. u; a-.w.c, oJier i.oie\, orthy (1) The clcfiini '?u cf 1 on tilled to confiaen- Prd m ;rop<^cd [ 2 201(f) has bc-ui de.tiled ,,s u: -',rv (2) Dehnitlnn, cf "LTA>,ffi-c"EPA legal o.T.r.," and "Au.Kirtg day" have been added to 5 2 201. (2) Section 2 202 h:i been modified to em- ph'-./s the need for alertness to the pos-slbll- ii> that d.lierent typv> of information within a ;n7'c dccun.i?':: may require dlfTerent treatmem Ml Section 2 234(b) has bc-en simplified by deletion of language which concerned the effect of a prior detvi m.nation holding that an item of information K not entitled to con- Tldcn;.-,! treatment Tnc treatment of such information is covered by 5 2.204(d) (2). (5) The rule has been modified in several places to emphasize the fact that two or more btisiue"'?.'., may have an interest In preserv ing the confidentiality of the same item of information, and that it may be necessary to resoivo separately the confidentiality claims of each bu-1 ness f l 2 204(c) (1), 2.204(d), and 2 205 i,d) (3), (3) The rule has been modified to acknowledge that a business may desire con fidential treatment cf an Hem. of Informa tion oruy for a stated period, after which it would not object to public disclosure of the information. See f} 2 203(b), 2 204(e) (4) (ii), 2 205 id) (2), 2205(e), and 2.205(f)(1)(H). (7) The requirement that Information must bear a confidentiality claim when sub mitted if waiver of the claim Is to be avoided will appiv to irfurm.Vion received on or after the effective date cf the rule, r.V.N'.- P. i", \ to information received cn cr uf'-v Pie ' day after the role j cllect vc date change li Justified by the fv.t i.-.^i e . will be de'.orn.inpd to h.iui t- cn wv;vci ' if the btnsine?^ f1.," t had been v.ut.c j <; ' c.vl.y that it r.:uc, a`-rert its cl.\:m at t.> ' c of Ruomi-Alon cf the information. (S) goction L* 204(c) cas i'ce:i :.iog.`,si ; > lr.uica`e that when a rcqutst ur.dcr 5 1^ 552 is penning and EPA mu; t ;r.r uire hr. a b i-:.:o-n uc.'.re.' t^ r,vcr. a cinfir.eu: chhm, rny claim rc-pon e to I'liu `n' /. mint be ;mv2e not later tha". o. e v., .. after tho inquiry Ls made, TTic AbmihLitr.-^'or ham dctcmuuei.. that thii chimre pcx^_s u: clue bircleiViCii bu?:ne..c' .. me e'-ri* v.'tn winch a chum m:;, ,ic . . ,1 and the hurlncsj'a opportuiuiy to dt^ .. , e a reprc.-ciiLJUve for mo puip.-c of ... - such inquiry^ (,-ee l 2 213), {()) Changes ha.e boon made -- places in the rule to indicate tha; m., m . various deadlines mu.-,t be met when "m' us pending a request for io:i u..u - 5 U.SC 552. a less rlgia Tiri-u.t,..'jle :t.- applied when no such request is pond___ (10) Sectloa 2^04(e) of the rule his uce., modified to conform the list of topics re addressed by a business in Its co:nim:.'> more closely to the substantive enterm u: ,u 1 2J08. (11) Section 2.205(f) has been moh.ficd :o confine to essentials the Information wl-.:h twn EPA olhee must forward to the Hpa u l office. (12) Section 2.203(a) has been modified to provide ft timetable for issuance of a fih J determination by an EPA legal office af;-c_ A ''procedural" denial of a request under c USC 552, (13) Section 2.205(h) has been modified *o more clearly set forth the procedure hr Which an EPA legal office may overrule o' modify an earlier determination houinr 'v y an item of information u enulied to r fidentlal treatment. (14) A number of-changes have been to 5 2,307 and { 2 308, designed to FtrrpVv their application and Increase the extent to which they parallel language In other ce'* tlons of the subpart, (15) Section 2 309 has been rewritten to eliminate unneeded elaborateness and in crease the extent to which the section paral lels other provisions of the suhpart. | FR Doc 7C-25C20 Filed 8-31-70,8-45 ami FEDERAL REGISTER, VOL 41( NO. 171--WEDNESDAY# SEPTEMBER 1, 1974 COLORITE 006133