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8 2.205 Final confidentiality determina- legal office will not approve such an tion by EPA legal office.

extension without the consent of any (a) Role of EPA legal office. (1) The person whose request for release of appropriate EPA legal office (see para

the information under 5 U.S.C. 552 is graph (1) of this section) is responsible

pending. for making the final administrative de- (3) The period for submission of termination of whether or not busi- comments by a business may be shortness information covered by a business

ened in the manner described in paraconfidentiality claim is entitled to con- graph (g) of this section. fidential treatment under this subpart.

(4) If a business's comments have (2) When a request for release of the not been received by the specified EPA information under 5 U.S.C. 552 is office by the date they are due (inpending, the EPA legal office's deter- cluding any approved extension), that mination shall serve as the final deter- office shall promptly inquire whether mination on appeal from an initial

the business has complied with paradenial of the request.

graph (b)(1) of this section. If the (i) If the initial denial was issued business has complied with paragraph under $ 2.204(b)(1), & final determina- (b)(1) but the comments have been tion by the EPA legal office is neces- lost in transmission, duplicate comsary only if the requestor has actually ments shall be requested. filed an appeal.

(c) Confidential treatment of com(ii) If the initial denial was issued ments from business. If information under $ 2.204(2)(1), however, the EPA submitted to EPA by a business as legal office shall issue a final determi- part of its comments under this secnation in every case, unless the re- tion pertains to the business's claim, is quest has been withdrawn. (Initial de- not otherwise possessed by EPA, and nials under $ 2.204(d)(1) are of a proce- is marked when received in accordance dural nature, to allow further inquiry with $ 2.203(b), it will be regarded by into the merits of the matter, and a re- EPA as entitled to confidential treatquestor is entitled to a decision on the ment and will not be disclosed by EPA merits.) If an appeal from such a without the business's consent, unless denial has not been received by the its disclosure is duly ordered by a FedEPA Freedom of Information Officer eral court, notwithstanding other proon the tenth working day after issu- visions of this subpart to the contrary. ance of the denial, the matter shall be (d) Types of final determinations; handled as if an appeal had been re- matters to be considered. (1) If the ceived on that day, for purposes of es- EPA legal office finds that a business tablishing a schedule for issuance of has failed to furnish comments under an appeal decision under $ 2.117 of paragraph (b) of this section by the this part.

specified due date, it shall determine (b) Comment period; extensions; un- that the business has waived its claim. timeliness as waiver of claim. (1) Each If, after application of the preceding business which has been furnished the sentence, no claim applies to the infornotice and opportunity to comment mation, the office shall determine that prescribed by $ 2.204(d)(1) and the information is not entitled to con$ 2.204(e) shall furnish its comments fidential treatment under this subpart to the office specified in the notice in and, subject to $ 2.210, is available to time to be postmarked or hand deliv- the public. ered to that office not later than the (2) In all other cases, the EPA legal date specified in the notice (or the office shall consider each business's date established in lieu thereof under claim and comments, the various prothis section).

visions of this subpart, any previously(2) The period for submission of issued determinations under this subcomments may be extended if, before part which are pertinent, the materithe comments are due, a request for als furnished it under $ 2.204(f), and an extension of the comment period is such other materials as it finds appromade by the business and approved by priate. With respect to each claim, the the EPA legal office. Except in ex- office shall determine whether or not traordinary circumstances, the EPA the information is entitled to confi

dential treatment for the benefit of titlement to confidential treatment is the business that asserted the claim, shorter than that requested by the and the period of any such entitle- business. ment (e.g., until a certain date, until (2) The notice prescribed by parathe occurrence of a specified event, or graph (f)(1) of this section shall be permanently), and shall take further written, and shall be furnished by ceraction under paragraph (e) or (f) of tified mail (return receipt requested), this section, as appropriate.

by personal delivery, or by other (3) Whenever the claims of two or means which allows verification of the more businesses apply to the same in- fact of receipt and the date of receipt. formation, the EPA legal office shall The notice shall state the basis for the take action appropriate under the par- determination, that it constitutes final ticular circumstances to protect the in- agency action concerning the business terests of all persons concerned (in- confidentiality claim, and that such cluding any person whose request for final agency action may be subject to the information is pending under 5 judicial review under Chapter 7 of U.S.C. 552).

Title 5, United States Code. With re(e) Determination that information spect to EPA's implementation of the is entitled to confidential treatment. If determination, the notice shall state the EPA legal office determines that that (subject to $ 2.210) EPA will make the information is entitled to confi- the information available to the public dential treatment for the full period on the tenth working day after the requested by the business which made date of the business's receipt of the the claim, EPA shall maintain the in- written notice (or on such later date as formacion in confidence for such is established in lieu thereof by the period, subject to paragraph (h) of EPA legal Oifice under paragraph this section, $ 2.209, and the other pro- (f)(3) of this section), unless the EPA visions of this subpart which authorize legal office has first been notified of disclosure in specified circumstances, the business's commencement of an and the office sliall so inform the busi- action in a Federal court to obtain juness. If any person's request for the dicial review of the determination, and release of the information is then to obtain preliminary injunctive relief pending under 5 U.S.C. 552, the EPA against disclosure. The notice shall legal office shall issue a final determi- further state that if such an action is nation denying that request.

timely commenced, EPA may nonethe(f) Determination that information less make the information available to is not entitled to confidential treat- the public (in the absence of an order ment; notice; waiting period; release of by the court to the contrary), once the information. (1) Notice of denial (or court has denied a motion for a prepartial denial) of a business confiden- liminazy injunction in the action or tiality claim, in the form prescribed by has otherwise upheld the EPA deterparagraph (f)(2) of this section, shall mination, or whenever it appears to be furnished,

the EPA legal office, after reasonable (i) By the EPA office taking action notice to the business, that the busiunder $ 2.204, to each business on ness is not taking appropriate measbehalf of which a claim has been ures to obtain a speedy resolution of made, whenever $ 2.204(2)(2) requires the action. If the information has such notice; and

been found to be temporarily entitled (ii) By the EPA legal office taking to confidential treatment, the notice action under this section, to each busi- shall further state that the informaness which has asserted a claim appli- tion will not be disclosed prior to the cable to the information and which end of the period of such temporary has furnished timely comments under entitlement to confidential treatment. paragraph (b) of this section, when- (3) The period established in a ever the EPA legal office determines notice under paragraph (f)(2) of this that the information is not entitled to section for commencement of an confidential treatment under this sub- action to obtain judicial review may be part for the benefit of the business, or extended if, before the expiration of determines that the period of any en- such period, a request for an extension

is made by the business and approved by the EPA legal office. Except in extraordinary circumstances, 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.

(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 information available to the public (in the absence of a court order prohibiting disclosure) whenever

(i) The period provided for commencement by a business of an action to obtain judicial review of the determination has expired without notice to the EPA legal office of commencement of such an action;

(ii) The court, in a timely-commenced action, has denied the business' motion for a preliminary injunction, or has otherwise upheld the EPA determination; or

(iii) The EPA legal office, after reasonable notice has been provided to the business, finds that the business is not taking appropriate measures to obtain a speedy resolution of the timely-commenced action.

(5) Any person whose request for release of the iniormation 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 General Counsel finds that disclosure of information 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 determinations. A determination that information is entitled to confidential treatment for the benefit of a business,

made under this subpart by an EPA legal office, shall continue in effect in accordance with its terms until an EPA legal office taking action under this section, or under $ 2.206 or § 2.207, issues a final determination stating that the earlier determination no longer describes correctly the information's entitlement to confidential treatment because of change in the applicable law, 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 business an opportunity to furnish comments on pertinent issues in the manner described by $ 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 the information is not entitled to confidential treatment, or that the period of entitlement to such treatment will end sooner than it would have ended under the earlier determination, the office will follow the procedure described in paragraph (f) of this section. Determinations under this section may be made only by, or with the concurrence of, the General Counsel.

(i) Delegation and redelegation of authority. Unless the General Counsel otherwise directs, or this subpart otherwise specifically provides, determinations and actions required by this subpart to be made or taken by an EPA legal office shall be made or taken by the appropriate Regional counsel whenever the EPA office taking action under § 2.204 or $ 2.206(b) is under the supervision of a Regional Administrator, and by the General Counsel in all other cases. The General Counsel may redelegate any or all of his authority under this subpart to any attorney employed by EPA on a full-time basis under the General Counsel's supervision. A Regional Counsel may redelegate any or all of his authority under this subpart to any attorney employed by EPA on a full-time basis under the Regional counsel's supervision.

(41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51661, Dec. 18, 1985)

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 information is received while the EPA legal office is in possession of the information, the legal office shall retain a copy of the information, but shall not disclose 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 treatment, 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 determination.

8 2.206 Advance confidentiality determina

tions. (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 information to EPA;

(2) The business asserts that the information, if submitted, would constitute voluntarily submitted information under $ 2.201(i);

(3) The business will voluntarily submit the information for use by EPA only if EPA first determines that the information is entitled to confidential treatment under this subpart; and

(4) The EPA office which desires submission of the information has requested that the EPA legal office issue a determination under this section.

(b) The EPA office requesting an advance determination under this section shall

(1) Arrange to have the business furnish directly to the EPA legal office a copy of the information (or, where feasible, a description of the nature of the information sufficient to allow a determination to be made), as well as the business's comments concerning the matters addressed in § 2.204(e)(4), excluding, however, matters addressed in $ 2.204 (e)(4)(iii) and (e)(4)(iv); and

(2) Furnish to the EPA legal office the materials referred to in $ 2.204(f) (3), (7), (8), and (9).

(c) In making a determination under this section, the EPA legal office shall first determine whether or not the information would constitute voluntarily submitted information under § 2.201(i). If the information would constitute voluntarily submitted information, the legal office shall further determine whether the information is entitled to confidential treatment.

(d) If the EPA legal office determines that the information would not constitute voluntarily submitted information, or determines that it would constitute voluntarily submitted information but would not be entitled to confidential treatment, it shall inform the business and the EPA

$ 2.207 Class 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, related items of business information;

(2) One or more characteristics common 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 is not, voluntarily submitted information under g 2.201(i);

(2) Is, or is not, governed by a particular section of this subpart, or by a

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particular set of substantive criteria under this subpart;

(3) Fails to satisfy one or more of the applicable substantive criteria, and is therefore ineligible for confidential treatment;

(4) Satisfies one or more of the applicable substantive criteria; or

(5) Satisfies one or more of the applicable substantive criteria during a certain period, but will be ineligible for confidential treatment thereafter.

(d) The purpose of a class determination is simply to make known the Agency'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 comments referred to in $ 2.204(d)(1)(ii) and g 2.205(b), and the list of materials required to be furnished to the EPA legal office under $ 2.204(d)(1)(iii), may be modified to reflect the fact that the class determi. nation has made unnecessary the submission of materials pertinent to one or more issues. Moreover, in appropriate cases, action based on the class determination may be taken under $ 2.204(b)(1), $ 2.204(d), § 2.205(d), or $ 2.206. However, the existence of a class determinacion shall not, of itself, affect any right a business may have to receive any notice under $ 2.204(d)(2) or $2.205(f).

82.208 Substantive criteria for use in cor.

fidentiality determinations. Determinations issued under $8 2.204 through 2.207 shall hold that business information is entitled to confidential treatment for the benefit of a particular business if

(a) The business has asserted a business 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 without the business's consent by other persons (other than governmental bodies) by use of legitimate means

$ 2.209 Disclosure in special circum

stances. (a) General. Information which, under this subpart, is not available to the public may nonetheless be disclosed to the persons, and in the circumstances, described by paragraphs (b) through (g) of this section. (This section shall not be construed to restrict the disclosure of information which has been determined to be available to the public. However, business information for which a claim of confider:tiality has been asserted shall be treated as being entitled to confidential treatment until there has been a determination in accordance with the procedures of this subpart that the information is not entitled to confidential treatment.)

(b) Disclosure to Congress of the Comptroller General. (1) Upon receipt of a written request by the Speaker of the House, President of the Senate, chairman of a committee or subcommittee, or the Comptroller General, as appropriate, EPA will disclose business informacion to either House of Congress, to a committee or subcommittee of Congress, or to the Comptroller General, unless a statute forbids such disclosure.

(2) If the request is for business information claimed as confidential or determined to be confidential, the EPA office processing the request shall provide notice to each affected business of the type of information disclosed and to whom it is disclosed. Notice shall be given at least ten days

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