Page images


tion, 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, videotape, sound recordings, punched cards, and computer tape or disk.

(k) (Reserved]

(1) “Administrator,” “Regional Administrator," "General Counsel," "Regional Counsel,” and “Freedom of Information Officer" mean the EPA officers or employees occupying the positions so titled.

(m) “EPA office" means any organizational element of EPA, at any level or location. (The terms “EPA office" and “EPA legal office" are used in this subpart for the sake of brevity and ease of reference. When this subpart requires that an action be taken by an "EPA office" or by an "EPA legal office,” it is the responsibility of the officer or employee in charge of that office to take the action or ensure that 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 this section.)

(0) 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.

the entitlement to confidential treatment of information gathered under such statutes. Sections 2.301 through 2.311 prescribe rules for treatment of certain categories of business information obtained under the various statutory provisions. Paragraph (b) of each of those sections should be consulted to determine whether any of those sections applies to the particular information in question.

(c) The basic rules of $ $ 2.201 through 2.215 govern except to the extent that they are modified or supplanted by the special rules of $ $ 2.301 through 2.311. In the event of a conflict between the provisions of the basic rules and those of a special rule which is applicable to the particular information in question, the provision of the special rule shall govern.

(d) If two or more of the sections coataining special rules apply to the particular information in question, and the applicable sections prescribe conflicting special rules for the treatment of the information, the rule which provides greater or wider availability to the public of the information shall govern.

(e) For most purposes, a document or other record may usefully be treated as a single unit of "information," even though in fact the document or record is comprised of a collection of individual items of information. However, in applying the provisions of this subpart, it will often be necessary to separate the individual items of information into two or more categories, and to afford different treatment to the information in each such category. The need for differentiation of this type may arise, e.g., because a business confidentiality claim covers only a portion of a record, or because only a portion of the record is eligible for confidential treatment. EPA offices taking action under this subpart must be alert to this problem.

(f) In taking actions under this subpart, EPA offices should consider whether it is possible to obtain the affected business's consent to disclosure of useful portions of records while protecting the inforination which is or may be entitled to confidentiality (e.g., by withholding such portions of a record as would identify a business, or

8 2.202 Applicability of subpart; priority

where provisions conflict; records containing more than one kind of infor

mation. (a) Sections 2.201 through 2.215 establish basic rules governing business confidentiality claims, the handling by EPA of business information which is or may be entitled to confidential treatment, and determinations by EPA of whether information is entitled to confidential treatment for reasons of business confidentiality.

(b) Various statutes (other than 5 U.S.C. 552) under which EPA operates contain special provisions concerning

by disclosing data in the form of industry-wide aggregates, multi-year averages or totals, or some similar form).

(g) This subpart does not apply to questions concerning entitlement to confidential treatment or information which concerns an individual solely in his personal, as opposed to business, capacity. (41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978; 50 FR 51661, Dec. 18, 1985)

8 2.203 Notice to be included in EPA re

quests, demands, and forms; method of asserting business confidentiality claim; effect of failure to assert claim

at time of submission. (a) Notice to be included in certain requests and demands for information, and in certain forms. Whenever an EPA office makes a written request or demand that a business furnish information which, in the office's opinion, is likely to be regarded by the business as entitled to confidential treatment under this subpart, or whenever an EPA office prescribes a form for use by businesses in furnishing such information, the request, demand, or form shall include or enclose a notice which

(1) States thai the business may, if it desires, assert a business confidentiality claim covering part or all of the information, in the manner described by paragraph (b) of this section, and that information covered by such a claim will be disclosed by EPA only to the extent, and by means of the procedures, set forth in this subpart;

(2) States that if no such claim accompanies the information when it is received by EPA, it may be made avail. able to the public by EPA without further notice to the business; and

(3) Furnishes a citation of the location of this subpart in the Code of Federal Regulations and the FEDERAL REGISTER.

(b) Method and time of asserting business confidentiality claim. A business which is submitting information to EPA may assert a business confidentiality claim covering the information by placing on (or attaching to) the information, at the time it is submitted to EPA, a cover sheet, stamped

or typed legend, or other suitable form of notice employing language such as “trade secret," "proprietary,” or “company confidential.” Allegedly confidential portions of otherwise non-confidential documents should be clearly identified by the business, and may be submitted separately to facilitate identification and handling by EPA. If the business desires confidential treatment only until a certain date or until the occurrence of a certain event, the notice should so state.

(c) Effect of failure to assert claim at time of submission of information. If information was submitted by a business to EPA on or after October 1, 1976, in response to an EPA request or demand (or on an EPA-prescribed form) which contained the substance of the notice required by paragraph (a) of this section, and if no business confidentiality claim accompanied the information when it was received by EPA, the inquiry to the business normally required by $ 2.204(c)(2) need not be made. If a claim covering the information is received after the information itself is received, EPA will make such efforts as are administratively practicable to associate the late claim with copies of the previouslysubmitted information in EPA files (see $ 2.204(c)(1)). However, EPA cannot assure that such efforts will be effective, in light of the possibility of prior disclosure or widespread prior dissemination of the information.

8 2.204 Initial action by EPA office.

(a) Situations requiring action. This seciion prescribes procedures to be used by EPA offices in making initial determinations of whether business information is entitled to confidential treatment for reasons of business confidentiality Action shall be taken under this section whenever an EPA office:

(1) Learns that it is responsible for responding to a request under 5 U.S.C. 552 for the release of business information; in such a case, the office shall issue an initial determination within the period specified in $ 2.112;

(2) Desires to determine whether business information in its possession 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, hare asserted business confidenEPA eventually ill be requested to tiality claims which remain applicable disclose the information at some to the information. If any business is future date and thus will hare to de found to have asserted an applicable termine whether the infcrmation 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 Tith respect to each such claim. should be initiated at the earliest prac- (2xi) If the examination conducted ticable time, in order to increase the under paragraph (c1) 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 is a request for release of close the information, the EPA office the information is later received under shall contact a responsible official of 5 0.8.C. 552.

each such business to learn whether (b) Previous confidentiality determi. the business asserts a claim covering nation. The EPA office shall first as. the information. However, no such in. certain 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 re acting under this subpart, holding sponding to ari 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) If such a determination aolds 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 failcuest 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 $2.113) that (C) Which has otherwise waived or the information has previously been withdrawn a claim covering the infordetermined to be entities 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 ofEPA 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 ru- (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 (ii) 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):

(i) 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 under. standing 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 forwarding a copy of the information impractical) representative samples, a description of the information, or both;

(2) A description of the circumstances and date of EPA's acquisition of the information;

(3) The name, address, and telephone number of the

EPA employee(s) most familiar with the information;

(4) The name, address and telephone number of each business which asserts an applicable business confidentiality claim;

(5) A copy of each applicable claim (or the record of the assertion of the 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)

« PreviousContinue »