ing publication in the FEDERAL REGISTER (6– 12-72): 1. The table of contents at the beginning of Part 2 is amended by inserting therein in sequence: Sec. 2.107a Trade secrets and privileged or confidential information. 2. A new § 2.107a is added, reading as follows: § 2.107a Trade secrets and privileged or cofidential information. (a) Trade secrets. (1) In the event records requested under this part may contain trade secrets, the office responsible for maintaining the records requested will forward the request for determination and accompanying materials referred to in § 2.105 (b) only to the Office of General Counsel, and the notice referred to in § 2.105(b), unless published in the FEDERAL REGISTER, will be sent by certified mail (return receipt requested): Provided, That notice under § 2.105(b) need not be given if similar notice was given prior to referring the matter to the Office of General Counsel. (2) If a person to whom notice of a request for records has been given under § 2.105 (b), or otherwise, advises the Office of General Counsel, in writing, prior to the expiration of 10 working days following the receipt or publication of such notice, that the requested records contain trade secrets furnished by such person, the portions of such records said to contain trade secrets shall not be disclosed, nor copies provided, unless the General Counsel shall first have made a final written determination that such records do not in fact contain trade secrets, or unless such disclosure is authorized by statute in spite of the provisions of 18 U.S.C. 1905. In the event no claim or other response is received by the Office of General Counsel prior to the expiration of the 10 working days specified herein, it will, before reaching a determination with respect to trade secrecy, make prompt inquiries to ensure that the absence of a response hereunder is not attributable to delay or failure of the mails. A claim, including a claim asserted by telephone, made at the time of such inquiries and confirmed in writing will be considered timely for purposes of subparagraph (3) of this paragraph. The Office of General Counsel will promptly notify the requesting party whenever a claim is made under this subparagraph. In making a determination under this subparagraph, the General Counsel will consider any additional information submitted to the Office of General Counsel within 30 days of receipt of a claim made hereunder, or within such longer time period requested by the claimant or the requesting party as it may agree to. If authorized by 5 U.S.C. 552(b) (4), the Office of General Counsel may agree to treat any such additional information as confidential at the request of the person submitting it, in which case it will not be disclosed without the express written permission of the person submitting it. If the General Counsel determines that the records requested do not contain trade secrets, notice of such determination will be served by certified mail by the Office of General Counsel upon the person making the claim. No sooner than 30 days following the mailing of such notice, the requested records will be disclosed in accordance with this part. (3) In the event a timely claim is made under subparagraph (2) of this paragraph, the time limits specified in §§ 2.106(a) and 2.109 (b) will not apply. In addition, the time limit specified in § 2.106(a) will be extended to include the time required for the prompt inquiries by the Office of General Counsel, referred to in subparagraph (2) of this paragraph. (4) On request of an interested party, the General Counsel may issue written determinations as to whether specified information contained in EPA records does or does not constitute trade secrets, whether or not a request for information has been made under this part. In the event a request is subsequently made under this part for information previously so determined to constitute trade secrets, EPA will be bound by that previous determination, unless the General Counsel: (i) Determines that subsequent events have destroyed the trade secrecy of the information in question, and (ii) gives written notice of such determination, and a full explanation of the basis therefore, to any person making a claim under subparagraph (2) of this paragraph. (b) Privileged or confidential information. (1) Privileged or confidential information (other than trade secrets or financial information the disclosure of which is prohibited by 18 U.S.C. 1905), which is referred to in 5 U.S.C. 552(b) (4) and § 2.105(a)(4), and defined in subparagraph (2) of this paragraph, will not be disclosed under this part without the express written permission of the person providing it to EPA. (2) For purposes of this paragraph, "privileged or confidential information" means information which an agency is authorized (but not required) by law to withhold from the public and which is either: (i) Submitted to EPA pursuant to, and in reliance on, a pledge of confidentiality contained in any EPA form, or obtained in writing from EPA; or (ii) Received from a State or Federal agency which in turn has received the information pursuant to, and in reliance on, a pledge of confidentiality, and which continues to consider itself bound by such pledge (unless EPA is entitled by law to demand such information from the original private source). (3) No pledge will be made by EPA under subparagraph (2) of this paragraph in connection with information which EPA is entitled by law to demand (such as emission data under section 114 of the Clean Air Act, 42 U.S.C. 1857c-9) or which is submitted to EPA to fulfill a requirement imposed by statute or regulation in connection with a regulatory Title 40-PROTECTION Chapter I-Environmental Protection PART 54-PRIOR NOTICE OF CITIZEN On July 8, 1971 (36 F.R. 12866) the Administrator proposed a new 42 CFR Part 415: Rules setting forth procedures for giving notice of civil actions pursuant to section 304 of the Clean Air Act, as amended (sec. 12, Public Law 91-604, 84 Stat. 1706). Six organizations commented on the proposed rules. Due consideration has been given to the comments and in response thereto a number of changes have been made in the rules as proposed. In addition, regulations of the Environmental Protection Agency were recodified in title 40, chapter I on November 25, 1971. Accordingly, the rules originally proposed as Part 415 of title 42, chapter IV will be codified as Part 54 of title 40, chapter I. The requirement for notice to alleged violators in § 415.2(c), as proposed, has been revised to require notice to the "managing agent" of the facility. Also, if the alleged violator is a corporation, notice to its registered agent, if any, is required. Section 415.3(b), as proposed, has been revised to require that notice of a violation include information on the specific activity alleged to be in violation. Section 415.3(c), as proposed, which required additional information to be included in the notice, if known to the citizen, has been deleted since it is the judgment of the Administrator that the potential procedural problems outweigh the possible benefit to be gained from the information which might be submitted pursuant to this section. Accordingly, the regulations containing procedures for giving prior notice of citizen suits Section 304 of the Clean Air Act, as amended, authorizes the commencement of civil actions to enforce the Act or to enforce certain requirements promulgated pursuant to the Act. The purpose of this part is to prescribe procedures governing the giving of notices required by subsection 304(b) of the Act (sec. 12, Public Law 91-604, 84 Stat. 1706) as a prerequisite to the commencement of such actions. § 54.2 Service of notice. (a) Notice to Administrator: Service of notice given to the Administrator under this part shall be accomplished by certified mail addressed to the Administrator, Environmental Protection Agency, Washington, D.C. 20460. Where notice relates to violation of an emission standard or limitation or to violation of an order issued with respect to an emission standard or limitation, a copy of such notice shall be mailed to the Regional Administrator of the Environmental Protection Agency for the Region in which such violation is alleged to have occurred. (b) Notice to State: Service of notice given to a State under this part regarding violation of an emission standard or limitation, or en order issued with respect to an emission stand ard or limitation shall be accomplished by certified mail addressed to an authorized representative of the State agency charged with responsibility for air pollution control in the State. A copy of such notice shall be mailed to the Governor of the State. (c) Notice to alleged violator: Service of notice given to an alleged violator under this part shall be accomplished by certified mail addressed to, or by personal service upon, the owner or managing agent of the building, plant, installation, or facility alleged to be in violation of an emission standard or limitation, or an order issued with respect to an emission standard or limitation. Where the alleged violator is a corporation, a copy of such notice shall be sent by certified mail to the registered agent, if any, of such corporation in the State in which such violation is alleged to have occurred. (d) Notice served in accordance with the provisions of this part shall be deemed given on the postmark date, if served by mail, or on the date of receipt, if personally served. § 54.3 Contents of notice. (a) Failure to act. Notice regarding a failure of the Administrator to perform an act or duty which is not discretionary shall identify the provisions of the Act which requires such act or creates such duty, shall describe with reasonable specificity the action taken or not taken by the Administrator which is claimed to constitute a failure to perform such act or duty, and shall state the full name and address of the person giving the notice. (b) Violation of standard, limitation or order. Notices to the Administrator, States, and alleged violators regarding violation of an emission standard or limitation or an order issued with respect to an emission standard or limitation, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order which has allegedly been violated, the activity alleged to be in violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation and the full name and address of the person giving the notice. Dated: December 6, 1971. WILLIAM D. RUCKELSHAUS, Environmental Protection Agency. [FR Doc. 71-18006 Filed 12-8-71; 8:49 am] |