Page images

(ii) Establishes particular criteria for the applicability of one or more of the withholding or refers to particular exemptions listed in $ 2.118 (a)(2), types of matters to be withheld;

(a)(5), or (a)(7). Disclosure of such re(4) Trade secrets and commercial or cords is encouraged if no important financial information obtained from a purpose would be served by withholdperson and privileged or confidential ing the records. (see Subpart B);

(b) As a matter of policy, EPA will (5) Interagency or intra-agency

not release a requested record if EPA memorandums or letters which would has determined that one or more of not be available by law to a party

the exemptions listed in § 2.118 (a)(1), other than an agency in litigation with

(a)(3), (a)(4), (a)(6), (a)(8), or (a)(9), the agency;

applies to the record, except when or(6) Personnel and medical files and

dered to do so by a Federal court or in similar files the disclosure of which

exceptional circumstances under apwould constitute a clearly unwarrant

propriate restrictions with the approved invasion of personal privacy;

al of the Office of General Counsel or (7) Investigatory records compiled

a Regional Counsel. for law enforcement purposes, but only to the extent that the production

8 2.120 Fees; payment; waiver. of such records would; (a) interfere with enforcement proceedings; (b) de

(a) Fee schedule. Fees will be prive a person of a right to a fair trial charged requestors for searching for or an impartial adjudication; (c) con and reproducing requested records, in stitute an unwarranted invasion of accordance with the following schedpersonal privacy; (d) disclose the iden ule: tity of a confidential source and, in

Record search time (EPA employees), $2.50 the case of a record compiled by a

per half hour. criminal law enforcement authority in

Computer programming time (EPA employthe course of a criminal investigation, ees), $4.50 per half hour. or by an agency conducting a lawful Reproduction of documents (paper copy of national security intelligence investi- paper original), $0.20 per page. gation, confidential information fur- Other costs of searching for or duplicating nished only by the confidential source; records (including such items as: computer (e) disclose investigative techniques system time; contractor computer proand procedures; or (f) endanger the

gramming time; reproduction of photo

graphs, microforms, or magnetic tape; life or physical safety of law enforce

computer printouts; and transportation of ment personnel;

records), actual direct cost to EPA. (8) Contained in or related to examination, operating, or condition reports

No charge shall be madeprepared by, on behalf of, or for the (1) For examination and evaluation use of an agency responsible for the of records which have been located regulation or supervision of finanical and which are known to be among institutions; or

those requested; (9) Geological and geophysical infor- (2) For the cost of preparing or remation and data, including maps, con viewing letters of response to a request cerning wells.

or appeal; (b) The fact that the applicability of (3) If the total fee in connection an exemption permits the withholding with a request is less than $10.00, or if of a requested record (or portion the costs of collecting the fee would thereof) does not necessarily mean otherwise exceed the amount of the that the record must or should be fee: withheld. See $ 2.119.

(4) For search time or computer pro[41 FR 36902, Sept. 1, 1976, as amended at gramming time by EPA employees, if 43 FR 40000, Sept. 8, 1978)

less than one half hour of such time

was required in connection with the 8 2.119 Discretionary release of exempt request; documents.

(5) For responding to a request for (a) An EPA office may, in its discre- one copy of the official personnel tion, release requested records despite record of the requestor;

[ocr errors]

(6) For furnishing records requested may be appealed by letter addressed to by either House of Congress, or by a the appropriate Freedom of Informaduly authorized committee or subcom- tion Officer. The Director of the EPA mittee of Congress, unless the records Office of Public Affairs, or the Direcare requested for the benefit of an in- tor's designee in an EPA regional dividual Member of Congress or for a office, shall decide such appeals. The constituent;

Director of the EPA Office of Public (7) For furnishing records requested Awareness, or the Director's designee by and for the official use of other in an EPA regional office, shall decide Federal agencies; or

such appeals. (8) For furnishing records needed by (e) The EPA Freedom of Informaan EPA contractor or grantee to per tion Officer shall maintain a record of form the work required by the EPA all fees charged requesters for searchcontract or grant.

ing for and reproducing requested re(b) Method of payment. All fee pay cords under this section. If after the ments shall be in the form of a check end of 60 calendar days from the date or money order payable to the order on which request for payment was of the “U.S. Environmental Protection made the requester has not submitted Agency” and shall be sent (accompa payment to the EPA Freedom of Innied by a reference to the pertinent formation Officer, the Freedom of InRequest Identification Number(s)) to formation Officer shall place the rethe appropriate EPA Freedom of In quester's name on a delinquent list. If formation Officer.

a requester whose name appears on (c) Prepayment or assurance of pay. the delinquent list makes a request ment. If an EPA office determines or under this part, the EPA Freedom of estimates that the unpaid fees attrib Information Officer shall inform the utable to one or more requests by the requester that EPA will not process same requestor exceed or will exceed the request until the requester sub$25.00, that office need not search for, mits payment of the overdue fee from duplicate or disclose records in re- the earlier request. Any request made sponse to any request by that reques- by an individual who specifies an aftor until the requestor pays, or makes filiation with or representation of a acceptable arrangements to pay, the corportion, association, law firm, or total amount of fees due (or estimated other organization shall be deemed to to become due) under this section. In be a request by the corporation, associsuch a case, the EPA Office shall ation, law firm, or other organization. promptly inform the requestor (by If an organization placed on the delintelephone, if practicable) of the need quent list can show that the person to make payment or arrangements to who made the request for which paypay. See also $ 2.112(d).

ment is overdue did not make the re(d) Reduction or waiver of fee. The quest on behalf of the organization, fee chargeable under this section may the organization will be removed from be reduced or waived by EPA If the the delinquent list but the name of public interest would be served there. the individual shall remain on the list. by. Reduction or waiver of fees shall A requester shall not be placed on the be considered (but need not necessar delinquent list if a request for a reducily be granted) in connection with tion or for a waiver is pending under each request from a representative of paragraph (d) of this section. the press or other communications

(41 FR 36902, Sept. 1, 1976, as amended at medium, or from a public interest

43 FR 40000, Sept. 8, 1978) group. A request for reduction or waiver of fees shall be addressed to

Subpart B-Confidentiality of the appropriate Freedom of Information Officer or the EPA office which is

Business Information responding to the request for records. The latter office shall initially deter

8 2.201 Definitions. mine whether the fee shall be reduced For the purposes of this subpart: or waived, and shall so inform the re- (a) "Person" means an individual, questor. The initial determination partnership, corporation, association,

or other public or private organization (h) “Business confidentiality claim" or legal entity, including Federal, (or, simply, “claim") means a claim or State or local governmental bodies and allegation that business information is agencies and their employees.

entitled to confidential treatment for (b) “Business" means any person en reasons of business confidentiality, or gaged in a business, trade, employ a request for a determination that ment, calling or profession, whether or such information is entitled to such not all or any part of the net earnings treatment. derived from such engagement by

(i) “Voluntarily submitted informasuch person inure (or may lawfully tion" means business information in inure) to the benefit of any private

EPA's possessionshareholder or individual.

(1) The submission of which EPA (c) “Business information" (some

had no statutory or contractual autimes referred to simply as "informa

thority to require; and tion") means any information which

(2) The submission of which was not pertains to the interests of any busi

prescribed by statute or regulation as ness, which was developed or acquired

a condition of obtaining some benefit

a by that business, and (except where

(or avoiding some disadvantage) under the context otherwise requires) which

a regulatory program of general appliis possessed by EPA in recorded form.

cability, including such regulatory pro

grams as permit, licensing, registra(d) “Affected business" means, with

tion, or certification programs, but exreference to an item of business infor

cluding programs concerned solely or mation, a business which has asserted

primarily with the award or adminis(and not waived or withdrawn) a business confidentiality claim covering the

tration by EPA of contracts or grants.

(j) “Recorded" means written or othinformation, or a business which could be expected to make such a claim if it

erwise registered in some form for prewere aware that disclosure of the in

serving information, including such

forms as drawings, photographs, videoformation to the public was proposed.

tape, sound recordings, punched cards, (e) “Reasons of business confiden

and computer tape or disk. tiality” include the concept of trade

(k) (Reserved) secrecy and other related legal con

(1) “Administrator," "Regional Adcepts which give (or may give) a busi

ministrator," "General Counsel," "Reness the right to preserve the confi

gional Counsel," and "Freedom of Indentiality of business information and

formation Officer" mean the EPA offito limit its use or disclosure by others

cers or employees occupying the posiin order that the business may obtain

tions so titled. or retain business advantages it de

(m) "EPA office" means any organirives from its rights in the informa

zational element of EPA, at any level tion. The definition is meant to en

or location. (The terms "EPA office" compass any concept which authorizes

and “EPA legal office" are used in this a Federal agency to withhold business

subpart for the sake of brevity and information under 5 U.S.C. 552(b)(4),

ease of reference. When this subpart as well as any concept which requires

requires that an action be taken by an EPA to withhold information from the “EPA office" or by an "EPA legal public for the benefit of a business office," it is the responsibility of the under 18 U.S.C. 1905 or any of the var officer or employee in charge of that ious statutes cited in $ 2.301 through office to take the action or ensure that $ 2.309.

it is taken.) (f) (Reserved)

(n) "EPA legal office" means the (g) Information which is "available EPA General Counsel and any EPA to the public" is information in EPA's office over which the General Counsel possession which EPA will furnish to exercises supervisory authority, inany member of the public upon re- cluding the various Offices of Regionquest and which EPA may make al Counsel. (See paragraph (m) of this public, release or otherwise make section.) available to any person whether or not (0) A "working day" is any day on its disclosure has been requested.

which Federal government offices are 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 information 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 the entitlement to confidential treat by disclosing data in the form of inment of information gathered under dustry-wide aggregates, multi-year such statutes. Sections 2.301 through averages or totals, or some similar 2.309 prescribe special rules for treat- form). ment of certain categories of business (g) This subpart does not apply to information obtained under the var questions concerning entitlement to ious statutory provisions. Paragraph confidential treatment or information (b) of each of those sections should be which concerns an individual solely in consulted to determine whether any of his personal, as opposed to business, those sections applies to the particular capacity. information in question. (c) The basic rules of $$ 2.201

[41 FR 36902, Sept. 1, 1976, as amended at through 2.215 govern except to the

43 FR 40000, Sept. 8, 1978) extent that they are modified or sup

8 2.203 Notice to be included in EPA replanted by the special rules of $ $ 2.301 through 2.309. In the event of a con

quests, demands, and forms; method of

asserting business confidentiality flict between the provisions of the

claim; effect of failure to assert claim basic rules and those of a special rule

at time of submission. which is applicable to the particular information in question, the provision (a) Notice to be included in certain of the special rule shall govern.

requests and demands for information, (d) If two or more of the sections and in certain forms. Whenever an containing special rules apply to the EPA office makes a written request or particular information in question, demand that a business furnish inforand the applicable sections prescribe mation which, in the office's opinion, conflicting special rules for the treat is likely to be regarded by the business ment of the information, the rule as entitled to confidential treatment which provides greater or wider avail under this subpart, or whenever an ability to the public of the informa EPA office prescribes a form for use tion shall govern.

by businesses in furnishing such infor(e) For most purposes, a document mation, the request, demand, or form or other record may usefully be treat shall include or enclose a notice ed as a single unit of "information," which even though in fact the document or (1) States that the business may, if it record is comprised of a collection of desires, assert a business confidentialindividual items of information. How- ity claim covering part or all of the inever, in applying the provisions of this formation, in the manner described by subpart, it will often be necessary to 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 available 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 nor mally required by $ 2.204(0)(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 previously submitted 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,

& 2.204 Initial action by EPA office.

(a) Situations requiring action. This section 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 the information has been received; or

(3) Determines that it is likely that EPA eventually will be requested to disclose the information at some future date and thus will have to determine whether the information is entitled to confidential treatment. In such a case this section's procedures should be initiated at the earliest practicable time, in order to increase the time available for preparation and submission of comments and for issuance of determinations, and to make easier the task of meeting response deadlines if a request for release of the information is later received under 5 U.S.C. 552.

(b) Previous confidentiality determination. The EPA office shall first ascertain whether there has been a previous determination, issued by a Federal court or by an EPA legal office acting under this subpart, holding that the information in question is entitled to confidential treatment for reasons of business confidentiality.

(1) If such a determination holds that the information is entitled to confidential treatment, the EPA Office shall furnish any person whose request for the information is pending under 5 U.S.C. 552 an initial determination (see $ 2.111 and $ 2.113) that the information has previously been determined to be entitled to confidential treatment, and that the request is therefore denied. The office shall furnish such person the appropriate case

« PreviousContinue »