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tion, or certification programs, but ex- the entitlement to confidential treatcluding programs concerned solely or ment of information gathered under primarily with the award or adminis- such statutes. Sections 2.301 through tration by EPA of contracts or grants. 2.311 prescribe rules for treatment of
(j) “Recorded” means written or oth- certain categories of business informaerwise registered in some form for pre- tion obtained under the various statuserving information, including such tory provisions. Paragraph (b) of each forms as drawings, photographs, video- of those sections should be consulted tape, sound recordings, punched cards, to determine whether any of those and computer tape or disk.
sections applies to the particular infor(k) (Reserved)
mation in question. (1) “Administrator," "Regional Ad- (c) The basic rules of $$ 2.201 ministrator," "General Counsel," "Re- through 2.215 govern except to the gional Counsel," and "Freedom of In- extent that they are modified or supformation Officer" mean the EPA offi- planted by the special rules of $82.301 cers or employees occupying the posi- through 2.311. In the event of a contions so titled.
flict between the provisions of the (m) “EPA office" means any organi- basic rules and those of a special rule zational element of EPA, at any level which is applicable to the particular or location. (The terms “EPA office" information in question, the provision and “EPA legal office” are used in this of the special rule shall govern. subpart for the sake of brevity and (d) If two or more of the sections ease of reference. When this subpart containing special rules apply to the requires that an action be taken by an particular information in question, “EPA office" or by an “EPA legal and the applicable sections prescribe office,” it is the responsibility of the conflicting special rules for the treatofficer or employee in charge of that ment of the information, the rule office to take the action or ensure that which provides greater or wider availit is taken.)
ability to the public of the informa(n) "EPA legal office" means the tion shall govern. EPA General Counsel and any EPA (e) For most purposes, a document office over which the General Counsel or other record may usefully be treatexercises supervisory authority, in- ed as a single unit of "information," cluding the various Offices of Region- even though in fact the document or al Counsel. (See paragraph (m) of this record is comprised of a collection of section.)
individual items of information. How(0) A "working day" is any day on ever, in applying the provisions of this which Federal government offices are subpart, it will often be necessary to open for normal business. Saturdays, separate the individual items of inforSundays, and official Federal holidays mation into two or more categories, are not working days; all other days and to afford different treatment to are.
the information in each such category.
The need for differentiation of this 8 2.202 Applicability of subpart; priority
type may arise, e.g., because a business where provisions conflict; records con
confidentiality claim covers only a portaining more than one kind of infor
tion of a record, or because only a pormation.
tion of the record is eligible for confi(a) Sections 2.201 through 2.215 es- dential treatment. EPA offices taking tablish basic rules governing business action under this subpart must be confidentiality claims, the handling by alert to this problem. EPA of business information which is (f) In taking actions under this subor may be entitled to confidential part, EPA offices should consider treatment, and determinations by EPA whether it is possible to obtain the afof whether information is entitled to fected business's consent to disclosure confidential treatment for reasons of of useful portions of records while probusiness confidentiality.
tecting the inforination which is or (b) Various statutes (other than 5 may be entitled to confidentiality (e.g., U.S.C. 552) under which EPA operates by withholding such portions of a contain special provisions concerning record as would identify a business, or
by disclosing data in the form of in- or typed legend, or other suitable form dustry-wide aggregates, multi-year of notice employing language such as averages or totals, or some similar “trade secret," "proprietary," or "comform).
pany confidential.” Allegedly confi(g) This subpart does not apply to dential portions of otherwise non-conquestions concerning entitlement to fidential documents should be clearly confidential treatment or information identified by the business, and may be which concerns an individual solely in submitted separately to facilitate idenhis personal, as opposed to business,
tification and handling by EPA. If the capacity.
business desires confidential treat(41 FR 36902, Sept. 1, 1976, as amended at ment only until a certain date or until 43 FR 40000, Sept. 8, 1978; 50 FR 51661, the occurrence of a certain event, the Dec. 18, 1985)
notice should so state.
(c) Effect of failure to assert claim at 8 2.203 Notice to be included in EPA re
time of submission of information. If quests, demands, and forms; method of
information was submitted by a busiasserting business confidentiality
ness to EPA on or after October 1, claim; effect of failure to assert claim
1976, in response to an EPA request or at time of submission.
demand (or an EPA-prescribed (a) Notice to be included in certain
form) which contained the substance requests and demands for information, of the notice required by paragraph and in certain forms. Whenever an
(a) of this section, and if no business EPA office makes a written request or
confidentiality claim accompanied the demand that a business furnish infor
information when it was received by mation which, in the office's opinion,
EPA, the inquiry to the business noris likely to be regarded by the business
mally required by $ 2.204(c)(2) need as entitled to confidential treatment
not be made. If a claim covering the under this subpart, or whenever an
information is received after the inforEPA office prescribes form for use
mation itself is received, EPA will by businesses in furnishing such infor
make such efforts as are administramation, the request, demand, or form
tively practicable to associate the late shall include or enclose a notice
claim with copies of the previouslywhich,
submitted information in EPA files (1) States thai the business may, if it
(see $ 2.204(c)(1). However, EPA desires, assert a business confidential
cannot assure that such efforts will be ity claim covering part or all of the in
effective, in light of the possibility of formation, in the manner described by
prior disclosure or widespread prior paragraph (b) of this section, and that
dissemination of the information. information covered by such a claim will be disclosed by EPA only to the
8 2.204 Initial action by EPA office. extent, and by means of the procedures, set forth in this subpart;
(a) Situations requiring action. This (2) States that if no such claim ac- seciion prescribes procedures to be companies the information when it is used by EPA offices in making initial received by EPA, it may be made avail
determinations of whether business inable to the public by EPA without fur- formation is entitled to confidential ther notice to the business; and
treatment for reasons of business con(3) Furnishes a citation of the loca- fidentiality. Action shall be taken tion of this subpart in the Code of under this section whenever an EPA Federal Regulations and the FEDERAL
(1) Learns that it is responsible for (b) Method and time of asserting responding to a request under 5 U.S.C. business confidentiality claim. A busi- 552 for the release of business inforness which is submitting information mation; in such a case, the office shall to EPA may assert a business confi- issue an initial determination within dentiality claim covering the informa- the period specified in $ 2.112; tion by placing on (or attaching to) (2) Desires to determine whether the information, at the time it is sub- business information in its possession mitted to EPA, a cover sheet, stamped is entitled to confidential treatment, even though no request for release of are affected businesses (see § 2.201(d)), the information has been received, or and to determine which businesses if
(3) Determines that it is likely that any, have asserted business confidenEPA eventually will be requested to tiality claims which remain applicable disclose the information at some to the information. If any business is future date and thus vill have to de found to have asserted an applicable termine whether the information is claim, the office shall take action entitled to confidential treatment. In under paragraph (d) of this section such a case this section's procedures with respect to each such claim. should be initiated at the earliest prae- (2Xi) If the examination conducted ticable time, in order to increase the under paragraph (X1) of this section time available for preparation and discloses the existence of any business submission of comments and for issu- which, although it has not asserted a ance of determinations, and to make claim, might be expected to assert a easier the task of meeting response claim if it knew EPA proposed to disdeadlines if a request for release of close the information, the EPA office the information is later received under shall contact a responsible official of 5 U.S.C. 552.
each such business to learn whether (b) Precious confidentiality determi- the business asserts a claim covering nation. The EPA office shall first as- the information. However, no such incertain whether there has been a pre- quiry need be made to any businessvious determination, issued by a Fed. (A) Which failed to assert a claim eral court or by an EPA legal office covering the information when reacting under this subpart, holding sponding to ali EPA request or that the information in question is en demand, or supplying information on titled to confidential treatment for an EPA form, which contained the reasons of business confidentiality. substance of the statements prescribed
(1) 1 such a determination holds by $ 2.203(a); that the information is entitled to con- (B) Which otherwise failed to assert fidential treatment, the EPA Office a claim covering the information after shall furnish any person whose re- being informed by EPA that such failquest for the information is pending ure could result in disclosure of the inunder 5 U.S.C. 552 an initial determi- formation to the public; or nation (see $ 2.111 and 8 2.113) that (C) Which has otherwise waived or the information has previously been withdrawn a claim covering the infordetermined to be entitied to confiden- mation. tial treatment, and that the request is (ii) If a request for release of the intherefore denied. The office shall fur- formation under 5 U.S.C. 552 is pendnish such person the appropriate case ing at the time inquiry is made under citation or EPA determination. If the this paragraph (c)(2), the inquiry shall EPA office believes that a previous de- be made by telephone or equally termination which was issued by an prompt means, and the responsible of. EPA legal office may be improper or ficial contacted shall be informed that no longer valid, the office shall so any claim the business wishes to assert inform the EPA legal office, which must be brought to the EPA office's shall consider taking action under attention no later than the close of $ 2.205(h).
business on the third working day (2) With respect to all information after such inquiry. not known to be covered by such a pre- (iii) A record shall be kept of the revious determination, the EPA office sults of any inquiry under this parashall take action under paragraph (c) graph (c)(2). If any business makes a of this section.
claim covering the information, the (c) Determining existence of business EPA office shall take further action confidentiality claims. (1) Whenever under paragraph (d) of this section. action under this paragraph is re- (3) If, after the examination under quired by paragraph (b)(2) of this sec- paragraph (c)(1) of this section, and tion, the EPA office shall examine the after any inquiry made under parainformation and the office's records to graph (c)(2) of this section, the EPA determine which businesses, if any, office knows of no clair covering the
information and the time for response under $ 2.205(f) with respect to the to any inquiry has passed, the infor- same information, no further notice mation shall be treated for purposes of need be furnished to that business. A this subpart as not entitled to confi- copy of each notice furnished to a dential treatment.
business under this paragraph (d)(2) (d) Preliminary determination. and $2.205(f) shall be forwarded Whenever action under this paragraph promptly to the appropriate EPA legal is required by paragraph (c)(1) or (2) office. of this section on any business's claim, (e) Notice to affected businesses; opthe EPA Office shall make a determi- portunity to comment. (1) Whenever nation with respect to each such required by paragraph (d)(1) of this claim. Each determination shall be section, the EPA office shall promptly made after consideration of the provi- furnish each business a written notice sions of $ 2.203, the applicable sub- stating that EPA is determining under stantive criteria in $ 2.208 or elsewhere this subpart whether the information in this subpart, and any previously- is entitled to confidential treatment, issued determinations under this sub- and affording the business an opportupart which are applicable.
nity to comment. The notice shall be (1) If, in connection with any busi- furnished by certified mail (return reness's claim, the office determines ceipt requested), by personal delivery, that the information may be entitled or by other means which allows verifito confidential treatment, the office cation of the fact and date of receipt. shall
The notice shall state the address of (i) Furnish the notice of opportunity the office to which the business's comto submit comments prescribed by ments shall be addressed (the EPA paragraph (e) of this section to each office furnishing the notice, unless the business which is known to have as- General Counsel has directed otherserted an applicable claim and which wise), the time allowed for comments, has not previously been furnished and the method for requesting a time such notice with regard to the infor- extension under $ 2.205(b)(2). The mation in question;
notice shall further state that EPA (i) Furnish, to any person whose re- will construe a business's failure to quest for release of the information is furnish timely comments as a waiver pending under 5 U.S.C. 552, a determi- of the business's claim. nation (in accordance with $ 2.113) (2) If action under this section is octhat the information may be entitled casioned by a request for the informato confidential treatment under this tion under 5 U.S.C. 552, the period for subpart and 5 U.S.C. 552(b)(4), that comments shall be 15 working days further inquiry by EPA pursuant to after the date of the business's receipt this subpart is required before a final of the written notice. In other cases, determination on the request can be the EPA office shall establish a reaissued, that the person's request is sonable period for comments (not less therefore initially denied, and that than 15 working days after the busiafter further inquiry a final detemina- ness's receipt of the written notice). tion will be issued by an EPA legal The time period for comments shall be office; and
considered met if the business's com(iii) Refer the matter to the appro- ments are postmarked or hand delivpriate EPA legal office, furnishing the ered to the office designated in the information required by paragraph (f) notice by the date specified. In all of this section after the time has cases, the notice shall call the busielapsed for receipt of comments from ness's attention to the provisions of the affected business.
$ 2.205(b). (2) If, in connection with all applica- (3) At or about the time the written ble claims, the office determines that notice is furnished, the EPA office the information clearly is not entitled shall orally inform a responsible repreto confidential treatment, the office sentative of the business (by teleshall take the actions required by phone or otherwise) that the business $ 2.205(f). However, if a business has should expect to receive the written previously been furnished notice notice, and shall request the business
to contact the EPA office if the written notice has not been received within a few days, so that EPA may furnish a duplicate notice.
(4) The written notice required by paragraph (e)(1) of this section shall invite the business's comments on the following points (subject to paragraph (e)(5) of this section):
(1) The portions of the information which are alleged to be entitled to confidential treatment;
(ii) The period of time for which confidential treatment is desired by the business (e.g., until a certain date, until the occurrence of a specified event, or permanently);
(iii) The purpose for which the information was furnished to EPA and the approximate date of submission, if known;
(iv) Whether a business confidentiality claim accompanied the information when it was received by EPA;
(V) Measures taken by the business to guard against undesired disclosure of the information to others;
(vi) The extent to which the information has been disclosed to others, and the precautions taken in connection therewith;
(vii) Pertinent confidentiality determinations, if any, by EPA or other Federal agencies, and a copy of any such determination, or reference to it, if available;
(viii) Whether the business asserts that disclosure of the information would be likely to result in substantial harmful effects on the business' competitive position, and if so, what those harmful effects would be, why they should be viewed as substantial, and an explanation of the causal relationship between disclosure and such harmful effects; and
(ix) Whether the business asserts 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 information in the future.
(5) To the extent that the EPA office already possesses the relevant facts, the notice need not solicit responses to the matters addressed in paragraphs (e)(4) (i) through (ix) of this section, although the notice shall
request confirmation of EPA's understanding of such facts where appropriate.
(6) The notice shall refer to $ 2.205(c) and shall include the statement prescribed by $ 2.203(a).
(f) Materials to be furnished to EPA legal office. 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 question, or (where the quantity or form of the information makes for warding a copy of the information impractical) representative samples, a description of the information, or both;
(2) A description of the circumstances and date of EPA's acquisition of the information;
(3) The name, address, and telephone number
the EPA employee(s) most familiar with the information;
(4) The name, address and telephone number of each business which asserts an applicable business confidentiality claim;
(5) A copy of each applicable claim (or the record of the assertion of the clai:n), and a description of when and how each claim was asserted;
(6) Comments concerning each business's compliance or noncompliance with applicable requirements of $ 2.203;
(7) A copy of any request for release of the information pending under 5 U.S.C. 552;
(8) A copy of the business's comments on whether the information is entitled to confidential treatment;
(9) The office's comments concerning the appropriate substantive criteria under this subpart, and information the office possesses concerning the information's entitlement to confi. dential treatment; and
(10) Copies of other correspondence or memoranda which pertain to the matter.
(41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978; 50 FR 51661, Dec. 18, 1985)