APPENDIX C

Public Information

Title 40-PROTECTION OF ENVIRONMENT

Chapter I-Environmental Protection
Agency

PART 2-PUBLIC INFORMATION

On August 28, 1971, notice of proposed rule making was published in the FEDERAL REGISTER (36 F.R. 17360) concerning the proIcedures to be followed by the Environmental Protection Agency in making records available to the public pursuant to the Freedom of Information Act, 5 U.S.C. 552. After consideration of all relevant comments and suggestions from interested persons, the proposed rules have been revised, and are hereby adopted as Part 2 of Title 40, as set forth below.

Effective date. In view of the importance of formalizing at the earliest practicable date the procedures that the Environmental Protection Agency will follow in response to requests for information, and in further view of the fact that no affected party will be required to alter his past practices as a result of promulgation of these regulations, it is found that good cause exists for dispensing with the 30-day period normally provided for by 5 U.S.C. 553(d). Accordingly, these regulations will be effective upon publication in the FEDERAL REIGSTER (12-3-71).

WILLIAM D. RUCKELSHAUS,
Administrator.

Environmental Protection Agency (EPA) to implement the provision of the Administrative Procedure Act (5 U.S.C. 552(a)(3)) relating to the availability to the public of identifiable records contained in agency files, and not published in the FEDERAL REGISTER. This part is applicable to all EPA components, including all EPA regional offices, field installations and laboratories.

§ 2.101 General policy.

It is the policy of EPA to make the fullest possible disclosure of information to any person who requests information, without unjustifiable expense or delay. Where information is exempt under 5 U.S.C. 552(b) from mandatory disclosure, the EPA Office of Public Affairs may, pursuant to § 2.107, order disclosure in the public interest, unless such disclosure is prohibited by law.

§ 2.102 Procedures applicable to the public. (a) Form of request. A request need not be in any particular form, but it (1) must be in writing, and (2) must describe the records sought with sufficient specificity to permit identification.

(b) Place of request. A request for records may be filed with the EPA Office of Public Affairs, 401 M Street SW., Washington, D.C. 20460, or with any other EPA office. Requests for records located in the indicated States may be filed with the following EPA Regional Offices:

(1) Region 1. (Massachusetts, Connecticut, Maine, New Hampshire, Rhode Island, Vermont), Room 2303, John F. Kennedy Federal Building, Boston, Mass. 02203. (2) Region 11. (New Jersey, New York, Puerto Rico, Virgin Islands), Room 847, 26 Federal Plaza, New York, NY 10007. (3) Region III. (Delaware, Maryland, Pennsylvania, Virginia, West Virginia, District of Columbia), Post Office Box 12900, Philadelphia, PA 19108.

(4) Region IV. (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee), Suite 300, 1421 Peachtree Street NE., Atlanta, GA 30309. (5) Region V. (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin), 1 North Wacker Drive, Chicago, IL 60606.

(6) Region VI. (Arkansas, Louisiana, New Mexico, Oklahoma, Texas), 1114 Commerce Street, Dallas, TX 75202.

(7) Region VII. (lowa, Kansas, Missouri, Nebraska), Room 702, 911 Walnut Street, Kansas City, MO 64106.

(8) Region VIII. (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming), Room 9041, Federal Office Building, 19th and Stout Streets, Denver, CO 80202.

(9) Region IX. (Arizona, California, Hawaii,

Nevada, American Samoa, Guam, Trust Territories of Pacific Islands, Wake Island), 760 Market Street, San Francisco, CA 94102.

(10) Region X. (Alaska, Idaho, Oregon, Washington), 1200 Sixth Avenue, Seattle, WA 98101.

§2.103 Agency procedures in response to request.

Within 10 working days after receipt of a request for records by an EPA office other than the Office of Public Affairs, such office will forward a copy of the request (with the date and place of receipt noted thereon) to the EPA Office of Public Affairs. In the event the office receiving the request is not the office responsible for maintaining the records requested, the request shall be forwarded immediately to the office having such responsibility.

§ 2.104 Duties of responsible EPA office. Within 10 working days after receipt of a request for records, the EPA office responsible for maintaining the records requested will:

(a) Obtain, or ascertain the location of, the records requested, and, unless a determination pursuant to § 2.106 is required, inform the requesting party of where the records may be inspected and, if ascertainable, of the charge for furnishing copies; or

(b) Inform the requesting party that the search for the requested records is continuing, and advise him of the anticipated date of completion of the search, and of any necessary subsequent extensions of such date, at which time (but in no event later than 30 days after receipt of a request for records) the provisions of the appropriate paragraph of this section will be promptly followed; or

(c) Inform the requesting party that the records sought are in the possession of another Government agency; refer the request to the office in such other agency where the records may be found; and notify the requesting party of such referral; or

(d) Inform the requesting party that the records requested do not exist to the best knowledge of the receiving office; or

(e) Inform the requesting party that the records requested have been published in the FEDERAL REGISTER, or in any other generally available publication, and furnish the citation to such publication and the place or places where it may be obtained; or

(f) Inform the requesting party that disclosure of all or part of the records requested is under review pursuant to § 2.106, and promptly forward the request in accordance therewith: Provided, That with respect to any part of the records requested which is not subject to review pursuant to § 2.106, action shall be taken promptly under the appropriate paragraph of this section; or

(g) Furnish such other information or take such other action as is appropriate; and

(h) Advise the EPA Office of Public Affairs of the action taken.

§ 2.105 Exemptions.

(a) Exempt information. Records may be exempt from disclosure, pursuant to 5 U.S.C. 552(b), when they pertain to matters that are:

(1) Specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy;

(2) Related solely to the internal personnel rules and practices of an agency;

(3) Specifically exempted from disclosure by statute;

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

(5) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) Investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an

agency;

(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) Geological and geophysical information and data, including maps, concerning wells.

(b) Procedures. The office responsible for maintaining the records requested will make a preliminary evaluation to determine whether they are exempt from mandatory disclosure pursuant to 5 U.S.C. 552(b). Whenever it is determined that the records requested are or may be exempt, such office will promptly forward a copy or a description of the records requested, together with a brief statement of its position with reference to the applicability of an exemption, and a request for a determination to the Office of the General Counsel at EPA headquarters, or to the Regional Counsel for the region in which the records are located, and, if the information contained in the records requested was obtained from a person other than EPA, will give notice of the request to such other person.

§ 2.106 Determinations by the Office of the General Counsel or a Regional Counsel. (a) General. Not later than 10 working days after receipt of a request for a determination, the Office of the General Counsel or Regional Counsel:

(1) Will advise the office requesting the determination to release the records requested, if no exemption pursuant to 5 U.S.C. 552(b) is found applicable; or

(2) Will advise the office requesting the determination not to release the records requested, if disclosure is prohibited by law; or (3) Will, if it is found that an exemption

pursuant to 5 U.S.C. 552(b) is applicable, but that disclosure is not prohibited by law, forward to the EPA Office of Public Affairs the entire file, with an opinion as to the applicability of a statutory exemption; and

(4) Will, if the information contained in the requested records was obtained from a person other than EPA, advise such other person of the action taken pursuant to this section.

(b) Consultation. A determination by a Regional Counsel under paragraph (a) of this section will be made only after consultation with the Office of the General Counsel. § 2.107 Determinations by the Office of Public Affairs.

Not later than 10 working days after receipt of an opinion from the Office of the General Counsel or a Regional Counsel pursuant to § 2.106(a)(3) as to the applicability of an exemption under 5 U.S.C. 552(b), the Office of Public Affairs will determine whether the records requested should be made available in the public interest, notwithstanding the applicability of an exemption, and will

(a) Order the disclosure of the records requested, or

(b) Notify the requesting party in accordance with §2.109 that the records requested will not be disclosed.

§ 2.108 Creation of records.

Documents will not be created by compiling selected items from other documents at the request of a member of the public, nor will records be created to provide the requesting party with data such as ratios, proportions, percentages, frequency distribution, trends, correlations, or comparisons.

§ 2.109 Denial of requests for records.

(a) General: If it is determined pursuant to this part that requested records will not be provided, the EPA office responsible for maintaining the requested records (or, in the event a determination has been made under § 2.107(b),) the Office of Public Affairs will notify the requesting party in writing that the request has been denied. A written denial of a request for information will contain a brief explanation of the statutory basis for nondisclosure, and will state that judicial review is available in the U.S. District Court for the district in which the requesting party resides or has his principal place of business, or in which the records sought are located.

(b) If EPA shall fail to grant or to deny in writing a request within 90 days following its receipt, the requesting party may regard such failure as final EPA action denying the request, and will be entitled to pursue his remedy in the courts as provided by 5 U.S.C. 552(a) (3).

§ 2.110 Copies of documents.

If it is determined that records requested may be disclosed, the requesting party will be entitled to copies. However, records shall not be released for copying by non-EPA personnel. When a determination not to disclose a por

tion of records requested has been made, records will be masked for copying of nonexempt portions of the documents.

§ 2.111 Payment.

(a) Charges. Fees will be charged for copies of records which are furnished to a person under this part and for time spent in locating and reproducing them, in accordance with a fee schedule maintained and revised by the Office of Public Affairs. No fee will be charged for time spent in processing of any request for information, nor will any fee be charged for periods of less than onehalf hour spent in connection with a search for records. For the purposes of this section, "processing" shall include all time spent in generating correspondence related to a request and in making determinations under §§ 2.106 and 2.107.

(b) Prepayment. In the event pending requests under this part from the same requesting party would require the payment of fees in excess of $10, such records will not be made available, nor copies of such records furnished unless the requesting party first submits payment in the total amount due; or, if not ascertainable, in the approximate amount that woud become due upon compliance with the request, as determined by the Office of Public Affairs or by the office complying with the request. In the event an advance payment hereunder shall differ from the amount of the fees actually due, an appropriate adjustment will be effected at the time the copies requested are delivered.

(c) Waiver. The Office of Public Affairs or the office complying with the request may waive the payment of fees, if such waiver would be in the public interest.

[FR Doc. 71-17675 Filed 12-2-71;8:49 am]

Title 40-PROTECTION
OF ENVIRONMENT

Chapter I-Environmental Protection
Agency

PART 2-PUBLIC INFORMATION
Trade Secrets and Privileged or

Confidential Information

On December 3, 1971, the Environmental Protection Agency published, at 36 F.R. 23058, final regulations to implement the Freedom of Information Act provisions of 5 U.S.C. 552. On the same date, EPA proposed amendments, at 36 F.R. 23077, to add a new § 2.107a to those final regulations. The new section was proposed to deal with the issues raised by requests for information said to contain trade secrets or other confidential information, and therefore exempt from mandatory public disclosure under 5 U.S.C. 552(b)(4) and § 2.105 (a) (4) of the EPA regulations. Public comment was invited on the amendments, and the time for comment was subsequently extended

through February 2, 1972, by a notice published at 37 F.R. 621 (January 14, 1972).

The amendments published here have been modified as a result of comments received. It is appropriate at this time to set forth EPA's reasons for proposing the amendments and for including in them the changes reflected below.

It became clear during the first year of EPA's existence that it could expect to receive a comparatively large number of requests from members of the public for information submitted by other members of the public, particularly by regulated industries.

Much of the information requested, however, was information of the sort described in 5 U.S.C. 552(b)(4), and exempted from mandatory public disclosure as "trade secrets and commercial or financial information which is privileged or confidential ***." It is EPA's position that some of the information described in 5 U.S.C. 552(b)(4) is required to be kept confidential-most notably, trade secrets. This requirement is not imposed by 5 U.S.C. 552(b)(4), since the exceptions in the Freedom of Information Act are merely a list of those types of information which an agency may withhold. Accordingly, if an agency is required to withhold information, it is by virtue of some other statutory provision. In this case it is 18 U.S.C. 1905, which makes it a criminal offense for a government employee to release trade secrets and certain specified financial informaion, in the absence of express statutory authority to do so. (For an example of such authority, see section 307(a) (1) of the Clean Air Act, as amended, 42 U.S.C. 1857h-5, which permits the disclosure of trade secrets "when relevant in any proceeding under this Act.")

Because the categories of information listed in 5 U.S.C. 552(b) are broader than the categories of information which an agency must at all times withhold, EPA faced two principal problems in administering the Freedom of Information Act with respect to requests for certain information submitted by industry.

First, it needed to establish procedures for ascertaining when a bona fide trade secret was in its hands. Paragraph (a) of the new §2.107a attempts to fulfill this need. Paragraph (a) is largely unchanged in substance from the version previously proposed. In response to several thoughtful comments, however, it was decided that certain time limits established by other sections of Part 2 need not be suspended unless a question actually arises as to whether information requested constitutes trade secrets. Thus, paragraph (a)(3), as adopted, differs from the proposal in being contingent on receipt of a claim of trade secrecy. On the other hand, and notwithstanding several comments received, it is not felt that the General Counsel could respond intelligently to many disputed claims of trade secrecy within the maximum of 10 working days provided for in cases involving other exemptions. EPA has received single requests for several

hundred separate items of information claimed to be trade secrets, and it anticipates that such requests may be relatively frequent. While EPA will try to make determinations as quickly as possible, it cannot in good faith bind itself to an unrealistically short deadline, particularly where its decisions on complex issues of fact and law will affect private property rights.

In addition, a new subparagraph permitting "advisory opinions" on trade secrecy claims has been added by subparagraph (4) of § 2.107a (a). This is a procedure suggested by several comments-which came, interestingly, from organizations having presumably divergent interests.

However, FPA has rejected the suggestion that paragraph (a) be changed to require formal administrative hearings, and notes that 5 U.S.C. 552(a)(3) authorizes de novo judicial review.

The final noteworthy change in paragraph (a) relates to the status of information submitted in support of a claim of trade secrecy. It was formerly EPA's presumption that such information would always be eligible for discretionary withholding under 5 U.S.C. 552 (b)(4). On reconsideration, it appears that that presumption may be unjustified, as in the case of submissions which are argumentative in nature. Accordingly, submissions in support of claims of trade secrecy will be treated like any other information in the hands of EPA.

In addition to clarifying the procedures for determining when information is a "trade secret" and therefore subject to mandatory restrictions against public disclosure, the amendments published today also define that information which is "privileged or confidential" and which EPA will withhold from the public, even though not required to do so. (Many otherwise thoughtful comments erroneously assumed that any information covered by 5 U.S.C. 552(b) (4) must be withheld from the public, and that an agency has no discretion to release it.) Paragraph (b) of the new § 2.107(a) states, in effect, that when a private party is required to submit information which tial, EPA will not agree to withhold that information from the public. On the other hand, when EPA wishes to obtain the voluntary cooperation of a private party-as, for example, when it invites contract or grant proposals, or when it wishes to inform itself on the stateof-the-art of pollution abatement-it must be free to give assurances that the submitted information will not be available to competitors of the party making the submission.

Paragraph (b), as adopted, contains no substantial changes from the proposed version, except that it binds EPA to honor pledges of confidentiality made by government agencies when EPA has received from them information which it has no legal right to obtain directly from the original private source.

For the foregoing reasons, Part 2 of Title 40, Code of Federal Regulations, is hereby amended as follows, effective 30 days follow