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citation or EPA determination. If the EPA office believes that a previous determination which was issued by an EPA legal office may be improper or no longer valid, the office shall so inform the EPA legal office, which shall consider taking action under $ 2.205(h).
(2) With respect to all information not known to be covered by such a previous determination, the EPA office shall take action under paragraph (c) of this section.
(c) Determining existence of business confidentiality claims. (1) Whenever action under this paragraph is required by paragraph (b)(2) of this section, the EPA office shall examine the information and the office's records to determine which businesses, if any, are affected businesses (see $ 2.201(d)), and to determine which businesses if any, have asserted business confidentiality claims which remain applicable to the information. If any business is found to have asserted an applicable claim, the office shall take action under paragraph (d) of this section with respect to each such claim.
(2) (i) If the examination conducted under paragraph (c)(1) of this section discloses the existence of any business which, although it has not asserted a claim, might be expected to assert a claim if it knew EPA proposed to disclose the information, the EPA office shall contact a responsible official of each such business to learn whether the business asserts a claim covering the information. However, no such inquiry need be made to any business
(A) Which failed to assert a claim covering the information when responding to an EPA request or demand, or supplying information on an EPA form, which contained the substance of the statements prescribed by $ 2.203(a);
(B) Which otherwise failed to assert a claim covering the information after being informed by EPA that such failure could result in disclosure of the information to the public; or
(C) Which has otherwise waived or withdrawn a claim covering the information.
(ii) If a request for release of the information under 5 U.S.C. 552 is pending at the time inquiry is made under
this paragraph (c)(2), the inquiry shall be made by telephone or equally prompt means, and the responsible of. ficial contacted shall be informed that any claim the business wishes to assert must be brought to the EPA office's attention no later than the close of business on the third working day after such inquiry.
(iii) A record shall be kept of the results of any inquiry under this para. graph (c)(2). If any business makes a claim covering the information, the EPA office shall take further action under paragraph (d) of this section.
(3) If, after the examination under paragraph (c)(1) of this section, and after any inquiry made under paragraph (c)(2) of this section, the EPA office knows of no claim covering the information and the time for response to any inquiry has passed, the information shall be treated for purposes of this subpart as not entitled to confidential treatment.
(d) Preliminary determination. Whenever action under this paragraph is required by paragraph (c)(1) or (c)(2) of this section on any business's claim, the EPA Office shall make a determination with respect to each such claim. Each determination shall be made after consideration of the provi. sions of $ 2.203, the applicable substantive criteria in $ 2.208 or elsewhere in this subpart, and any previously. issued determinations under this subpart which are applicable.
(1) If, in connection with any business's claim, the office determines that the information may be entitled to confidential treatment, the office shall
(i) Furnish the notice of opportunity to submit comments prescribed by paragraph (e) of this section to each business which is known to have asserted an applicable claim and which has not previously been furnished such notice with regard to the information in question;
(ii) Furnish, to any person whose request for release of the information is pending under 5 U.S.C. 552, a determination (in accordance with $ 2.113) that the information may be entitled to confidential treatment under this subpart and 5 U.S.C. 552(b)(4), that further inquiry by EPA pursuant to
this subpart is required before a final sonable period for comments (not less determination on the request can be than 15 working days after the busiissued, that the person's request is ness's receipt of the written notice). In therefore initially denied, and that all cases, the notice shall call the busiafter further inquiry a final detemina- ness's attention to the provisions of tion will be issued by an EPA legal $ 2.205(b). office; and
(3) At or about the time the written (iii) Refer the matter to the appro- notice is furnished, the EPA office priate EPA legal office, furnishing the shall orally inform a responsible repreinformation required by paragraph (f) sentative of the business (by teleof this section.
phone or otherwise) that the business (2) If, in connection with all applica- should expect to receive the written ble claims, the office determines that notice, and shall request the business the information clearly is not entitled to contact the EPA office if the writto confidential treatment, the office ten notice has not been received shall take the actions required by within a few days, so that EPA may $ 2.205(f). However, if a business has furnish a duplicate notice. previously been furnished notice (4) The written notice required by under $ 2.205(f) with respect to the paragraph (e)(1) of this section shall same information, no further notice invite the business's comments on the need be furnished to that business. A following points (subject to paragraph copy of each notice furnished to a (e)(5) of this section): business under this paragraph (d)(2) (i) The portions of the information and $ 2.205(f) shall be forwarded which are alleged to be entitled to conpromptly to the appropriate EPA legal fidential treatment; office.
(ii) The period of time for which (e) Notice to affected businesses, op confidential treatment is desired by portunity to comment. (1) Whenever the business (e.g., until a certain date, required by paragraph (d)(1) of this until the occurrence of a specified section, the EPA office shall promptly event, or permanently); furnish each business a written notice (iii) The purpose for which the instating that EPA is determining under formation was furnished to EPA and this subpart whether the information the approximate date of submission, if is entitled to confidential treatment, known; and affording the business an opportu- (iv) Whether a business confidentialnity to comment. The notice shall be ity claim accompanied the information furnished by certified mail (return re- when it was received by EPA; ceipt requested), by personal delivery, (v) Measures taken by the business or by other means which allows verifi- to guard against undesired disclosure cation of the fact and date of receipt. of the information to others; The notice shall state the address of (vi) The extent to which the inforthe office to which the business's com- mation has been disclosed to others, ments shall be addressed (the appro- and the precautions taken in connecpriate EPA legal office, unless the tion therewith; General Counsel has directed other- (vii) Pertinent confidentiality deterwise), the time allowed for comments, minations, if any, by EPA or other and the method for requesting a time Federal agencies, and a copy of any extension under $ 2.205(b)(2). The such determination, or reference to it, notice shall further state that EPA if available; will construe a business's failure to (viii) Whether the business asserts furnish timely comments as a waiver that disclosure of the information of the business's claim.
would be likely to result in substantial (2) If action under this section is oc- harmful effects on the business' comcasioned by a request for the informa- petitive position, and if so, what those tion under 5 U.S.C. 552, the period for harmful effects would be, why they comments shall be 15 working days should be viewed as substantial, and after the date of the business's receipt an explanation of the causal relationof the written notice. In other cases, ship between disclosure and such the EPA office shall establish a rea- harmful effects; and
the information's entitlement to confi. dential treatment; and
(9) 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)
(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 (e)(4)(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 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 claim), 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) The office's comments concern ing the appropriate substantive crite ria under this subpart, and informa tion the office possesses concerning
8 2.205 Final confidentiality determina
tion by EPA legal office. (a) Role of EPA legal office. (1) The appropriate EPA legal office (see paragraph (i) of this section) is responsible for making the final administrative determination of whether or not business information covered by a business confidentiality claim is entitled to confidential treatment under this subpart.
(2) When a request for release of the information under 5 U.S.C. 552 is pending, the EPA legal office's determination shall serve as the final determination on appeal from an initial denial of the request.
(i) If the initial denial was issued under $ 2.204(b)(1), a final determination by the EPA legal office is necessary only if the requestor has actually filed an appeal.
(ii) If the initial denial was issued under $ 2.204(d)(1), however, the EPA legal office shall issue a final determination in every case, unless the request has been withdrawn. (Initial denials under $ 2.204(d)(1) are of a procedural nature, to allow further inquiry into the merits of the matter, and a requestor is entitled to a decision on the merits.) If an appeal from such a denial has not been received by the EPA Freedom of Information Officer on the tenth working day after issuance of the denial, the matter shall be handled as if an appeal had been received on that day, for purposes of establishing a schedule for issuance of an appeal decision under $ 2.117 of this part.
(b) Comment period; extensions; untimeliness as waiver of claim. (1) Each business which has been furnished the notice and opportunity to comment prescribed by $ 2.204(d)(1) and § 2.204(e) shall furnish its comments to the office specified in the notice in a manner reasonably calculated to result in receipt of the comments by that office not later than the date
specified for receipt in the notice (or subject to $ 2.210, is available to the the date established in lieu thereof public. under this section).
(2) In all other cases, the EPA legal (2) The period for submission of office shall consider each business's comments may be extended if, before claim and comments, the various prothe comments are due, a request for visions of this subpart, any previouslyan extension of the comment period is issued determinations under this sub
de by the business and approved by part which are pertinent, the materithe EPA legal office. Except in ex- als furnished it under $ 2.204(f), and traordinary circumstances, the EPA such other materials as it finds approlegal office will not approve such an priate. With respect to each claim, the extension without the consent of any office shall determine whether or not person whose request for release of the information is entitled to confithe information under 5 U.S.C. 552 is dential treatment for the benefit of pending.
the business that asserted the claim, (3) The period for submission of
and the period of any such entitlecomments by a business may be short
ment (e.g., until a certain date, until ened in the manner described in para
the occurrence of a specified event, or graph (g) of this section.
permanently), and shall take further (4) If a business's comments have
action under paragraph (e) or (f) of
this section, as appropriate. not been received by the specified EPA
(3) Whenever the claims of two or office on the date they are due, that
more businesses apply to the same inoffice shall promptly inquire whether
formation, the EPA legal office shall the business has complied with para
take action appropriate under the pargraph (b)(2) of this section. If the
ticular circumstances to protect the inbusiness has complied but the com
terests of all persons concerned (inments have been lost in transmission,
cluding any person whose request for duplicate comments shall be request
the information is pending under 5
U.S.C. 552). (c) Confidential treatment of com
(e) Determination that information ments from business. If information
is entitled to confidential treatment. If submitted to EPA by a business as
the EPA legal office determines that part of its comments under this sec
the information is entitled to confition pertains to the business's claim, is
dential treatment for the full period not otherwise possessed by EPA, and
requested by the business which made is marked when received in accordance
the claim, EPA shall maintain the inwith $ 2.203(b), it will be regarded by
formation in confidence for such EPA as entitled to confidential treat
period, subject to paragraph (h) of ment and will not be disclosed by EPA
this section, $ 2.209, and the other prowithout the business's consent, unless
visions of this subpart which authorize its disclosure is duly ordered by a Fed
disclosure in specified circumstances, eral court, notwithstanding other pro
and the office shall so inform the busivisions of this subpart to the contrary.
ness. If any person's request for the (d) Types of final determinations; release of the information is then matters to be considered. (1) If the pending under 5 U.S.C. 552, the E EPA legal office finds that a business legal office shall issue a final determihas failed to furnish comments under nation denying that request. paragraph (b) of this section in a (f) Determination that information manner reasonably calculated to is not entitled to confidential treatresult in receipt of the comments not ment; notice; waiting period; release of later than the date the comments information. (1) Notice of denial (or were due, it shall determine that the partial denial) of a business confidenbusiness has waived its claim. If, after tiality claim, in the form prescribed by application of the preceding sentence, paragraph (f)(2) of this section, shall no claim applies to the information, be furnishedthe office shall determine that the in- (i) By the EPA office taking action formation is not entitled to confiden- under $ 2.204, to each business on tial treatment under this subpart and, behalf of which a claim has been
made, whenever $ 2.204(d)(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 informa. ness 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 titlement to confidential treatment is is made by the business and approved shorter than that requested by the by the EPA legal office. Except in exbusiness.
traordinary circumstances, the EPA (2) The notice prescribed by para legal office will not approve such an graph (f)(1) of this section shall be extension without the consent of any written, and shall be furnished by cer- person whose request for release of tified mail (return receipt requested), the information under 5 U.S.C. 552 is by personal delivery, or by other pending. means which allows verification of the (4) After the expiration of any fact of receipt and the date of receipt. period of temporary entitlement to The notice shall state the basis for the confidential treatment, a determinadetermination, that it constitutes final tion under this paragraph (f) shall be agency action concerning the business implemented by the EPA legal office confidentiality claim, and that such by making the information available final agency action may be subject to to the public (in the absence of a court judicial review under chapter 7 of title order prohibiting disclosure) when5, United States Code. With respect to everEPA's implementation of the determi- (i) The period provided for comnation, the notice shall state that mencement by a business of an action (subject to $ 2.210) EPA will make the to obtain judicial review of the deterinformation available to the public on mination has expired without notice the tenth working day after the date to the EPA legal office of commenceof the business's receipt of the written ment of such an action; notice (or on such later date as is es- (ii) The court, in a timely-comtablished in lieu thereof by the EPA menced action, has denied the busilegal office under paragraph (f)(3) of ness' motion for a preliminary injuncthis section), unless the EPA legal tion, or has otherwise upheld the EPA office has first been notified of the bu- determination; or siness's commencement of an action in (iii) The EPA legal office, after reaa Federal court to obtain judicial sonable notice has been provided to review of the determination, and to the business, finds that the business is obtain preliminary injunctive relief not taking appropriate measures to against disclosure. The notice shall obtain a speedy resolution of the further state that if such an action is timely-commenced action. timely commenced, EPA may nonethe- (5) Any person whose request for reless make the information available to lease of the information under 5 the public (in the absence of an order U.S.C. 552 is pending at the time by the court to the contrary), once the notice is given under paragraph (f)(2) court has denied a motion for a pre- of this section shall be furnished a deliminary injunction in the action or termination under 5 U.S.C. 552 stating has otherwise upheld the EPA deter- the circumstances under which the inmination, or whenever it appears to formation will be released. the EPA legal office, after reasonable (g) Emergency situations. If the notice to the business, that the busi- General Counsel finds that disclosure ness is not taking appropriate meas- of information covered by a claim ures to obtain a speedy resolution of would be helpful in alleviating a situa.