« PreviousContinue »
tion posing an imminent and substan Regional Administrator, and by the tial danger to public health or safety, General Counsel in all other cases. he may prescribe and make known to The General Counsel may redelegate interested persons such shorter comany or all of his authority under this ment period (paragraph (b) of this sec. subpart to any attorney employed by tion), post-determination waiting EPA on a full-time basis under the period (paragraph (f) of this section), General Counsel's supervision. A Reor both, as he finds necessary under gional Counsel may redelegate any or the circumstances.
all of his authority under this subpart (h) Modification of prior determina to any attorney employed by EPA on a tions. A determination that informa full-time basis under the Regional tion is entitled to confidential treat- counsel's supervision. ment for the benefit of a business, made under this subpart by an EPA 82.206 Advance confidentiality determinalegal office, shall continue in effect in tions. accordance with its terms until an (a) An advance determination under EPA legal office taking action under this section may be issued by an EPA this section, or under $ 2.206 or $ 2.207,
legal office ifissues a final determination stating
(1) EPA has requested or demanded that the earlier determination no
that a business furnish business inforlonger describes correctly the informa
mation to EPA; tion's entitlement to confidential
(2) The business asserts that the intreatment because of change in the
formation, if submitted, would constiapplicable law, newly-discovered or changed facts, or because the earlier
tute voluntarily submitted informa
tion under $ 2.201(i); determination was clearly erroneous. If an EPA legal office tentatively con
(3) The business will voluntarily cludes that such an earlier determina
submit the information for use by tion is of questionable validity, it shall
EPA only if EPA first determines that so inform the business, and shall
the information is entitled to confiafford the business an opportunity to
dential treatment under this subpart; furnish comments on pertinent issues
and in the manner described by $ 2.204(e)
(4) The EPA office which desires and paragraph (b) of this section. If,
submission of the information has reafter consideration of any timely com
quested that the EPA legal office issue
quested that. ments submitted by the business, the a determination under this section. EPA legal office makes a revised final
(b) The EPA office requesting an addetermination that the information is vance determination under this secnot entitled to confidential treatment,
tion shallor that the period of entitlement to (1) Arrange to have the business fursuch treatment will end sooner than it nish directly to the EPA legal office a would have ended under the earlier
copy of the information (or, where determination, the office will follow feasible, a description of the nature of the procedure described in paragraph the information sufficient to allow a (f) of this section. Determinations determination to be made), as well as under this section may be made only the business's comments concerning by, or with the concurrence of the the matters addressed in $ 2.204(e)(4), General Counsel.
excluding, however, matters addressed (i) Delegation and redelegation of in g 2.204 (e)(4)(iii) and (e)(4)(iv); and authority. Unless the General Counsel (2) Furnish to the EPA legal office otherwise directs, or this subpart oth the materials referred to in $ 2.204 erwise specifically provides, determi. (f)(3), (f)(7), (f)(8), and (f)(9). nations and actions required by this (c) In making a determination under subpart to be made or taken by an this section, the EPA legal office shall EPA legal office shall be made or first determine whether or not the intaken by the appropriate Regional formation would constitute voluntarily counsel whenever the EPA office submitted information under taking action under $ 2.204 or $2.201(i). If the information would $ 2.206(b) is under the supervision of a constitute voluntarily submitted infor
mation, 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 SO inform the business and the EPA office which requested the determina tion, 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 2.207 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 clear. ly 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 $ 2.201(i);
(2) Is, or is not, governed by a particular section of this subpart, or by a 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 ap
(5) Satisfies plicable 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 f 2.205(b), and the list of materials required to be fur. nished to the EPA legal office under $ 2.204(d)(1)(iii), may be modified to reflect the fact that the class determination 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 determination 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 con
fidentiality determinations. Determinations issued under $ $ 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 General, unless a statute forbids such shown that it has taken reasonable disclosure. If the request is for informeasures to protect the confidential- mation claimed as confidential or deity of the information, and that it in termined to be confidential, the EPA tends to continue to take such meas- office processing the request shall proures;
vide notice to each affected business (c) The information is not, and has of the type of information to be disnot been, reasonably obtainable with closed and to whom it is to be disout the business's consent by other closed. At the discretion of the office, persons (other than governmental such notice may be given by notice bodies) by use of legitimate means published in the FEDERAL REGISTER at (other than discovery based on a show
least 10 days prior to disclosure, or by ing of special need in a judicial or letter sent by certified mail return requasi-judicial proceeding);
ceipt requested or telegram either of (d) No statute specifically requires
which must be received by the affectdisclosure of the information; and
ed business at least 10 days prior to (e) Either
disclosure. At the time EPA discloses (1) The business has satisfactorily
the business information, EPA will shown that disclosure of the informa
inform the requesting body of any untion is likely to cause substantial harm
resolved business confidentiality claim to the business's competitive position;
known to cover the information and of or
any determination under this subpart (2) The information is voluntarily
that the information is entitled to consubmitted information (see $2.201(i)),
fidential treatment. and its disclosure would be likely to
(c) Disclosure to other Federal agenimpair the Government's ability to
cies. EPA may disclose business inforobtain necessary information in the future.
mation to another Federal agency if
(1) EPA receives a written request § 2.209 Disclosure in special circum for disclosures of the information stances.
from a duly authorized officer or em(a) General Information which,
ployee of the other agency or on the under this subpart, is not available to
initiative of EPA when such disclosure the public may nonetheless be dis
is necessary to enable the other closed to the persons, and in the cir
agency to carry out a function on cumstances, described by paragraphs
behalf of EPA; (b) through (g) of this section. (This
(2) The request. if any, sets forth section shall not be construed to re
the official purpose for which the instrict the disclosure of information
formation is needed; which has been determined to be (3) When the information has been available to the public. However, busi- claimed as confidential or has been deness information for which a claim of termined to be confidential, the reconfidentiality has been asserted shall sponsible EPA office provides notice to be treated as being entitled to confi- each affected business of the type of dential treatment until there has been information to be disclosed and to a determination in accordance with whom it is to be disclosed. At the disthe procedures of this subpart that cretion of the office, such notice may the information is not entitled to con- be given by notice published in the fidential treatment.)
FEDERAL REGISTER at least 10 days (b) Disclosure to Congress or the prior to disclosure, or by letter sent by Comptroller General. Upon receipt of certified mail return receipt requested a written request by the Speaker of or telegram either of which must be the House, President of the Senate, received by the affected business at chairman of a committee or subcom least 10 days prior to disclosure. Howmittee, or the Comptroller General, as ever, no notice shall be required when appropriate, EPA will disclose business EPA furnishes business information to information to either House of Con- another Federal agency to perform a gress, to a committee or subcommittee function on behalf of EPA, including of Congress, or to the Comptroller but not limited to
(i) Disclosure to the Department of Justice for purposes of investigation or prosecution of civil or criminal violations of Federal law related to EPA activities;
(ii) Disclosure to the Department of Justice for purposes of representing EPA in any matter; or
(iii) Disclosure to any Federal agency for purposes of performing an EPA statutory function under an interagency agreement.
(4) EPA notifies the other agency of any unresolved business confidentiality claim covering the information and of any determination under this subpart that the information is entitled to confidential treatment, and that further disclosure of the information may be a violation of 18 U.S.C. 1905; and
(5) The other agency agrees in writing not to disclose further any information designated as confidential unless
(i) The other agency has statutory authority both to compel production of the information and to make the proposed disclosure, and the other agency has, prior to disclosure of the information to anyone other than its officers and employees, furnished to each affected business at least the same notice to which the affected business would be entitled under this subpart;
(ii) The other agency has obtained the consent of each affected business to the proposed disclosure; or
(iii) The other agency has obtained a written statement from the EPA General Counsel or an EPA Regional Counsel that disclosure of the information would be proper under this subpart.
(d) Court-ordered disclosure. EPA may disclose any business information in any manner and to the extent ordered by a Federal court. Where possible, and when not in violation of a specific directive from the court, the EPA office disclosing information claimed as confidential or determined to be confidential shall provide as much advance notice as possible to each affected business of the type of information to be disclosed and to whom it is to be disclosed, unless the affected business has actual notice of the court order. At the discretion of the office, subject
to any restrictions by the court, such notice may be given by notice in the FEDERAL REGISTER, letter sent by certified mail return receipt requested, or telegram.
(e) Disclosure within EPA. An EPA office, officer, or employee may disclose any business information to another EPA office, officer, or employee with an official need for the information.
(f) Disclosure with consent of business. EPA may disclose any business information to any person if EPA has obtained the prior consent of each af. fected business to such disclosure.
(g) Record of disclosures to be maintained. Each EPA office which discloses information to Congress, a committee or subcommittee of Congress, the Comptroller General, or another Federal agency under the authority of paragraph (b) or (c) of this section, shall maintain a record of the fact of such disclosure for a period of not less than 36 months after such disclosure. Such a record, which may be in the form of a log, shall show the name of the affected businesses, the date of disclosure, the person or body to whom disclosure was made, and a de scription of the information disclosed. [41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978]
8 2.210 Nondisclosure for reasons other
than business confidentiality or where disclosure is prohibited by other stat
ute. (a) Information which is not entitled to confidential treatment under this subpart shall be made available to the public (using the procedures set forth in $ $ 2.204 and 2.205) if its release is requested under 5 U.S.C. 552, unless EPA determines (under Subpart A of this part) that, for reasons other than reasons of business confidentiality, the information is exempt from mandatory disclosure and cannot or should not be made available to the public. Any such determination under subpart A shall be coordinated with actions taken under this subpart for the purpose of avoiding delay in responding to requests under 5 U.S.C. 552.
(b) Notwithstanding any other provision of this subpart, if any statute not
cited in this subpart appears to require EPA to give confidential treatment to any business information for reasons of business confidentiality, the matter shall be referred promptly to an EPA legal office for resolution. Pending resolution, such information shall be treated as if it were entitled to confidential treatment. 8 2.211 Safeguarding of business informa
tion; penalty for wrongful disclosure. (a) No EPA officer or employee may disclose, or use for his or her private gain or advantage, any business information which came into his or her possession, or to which he or she gained access, by virtue of his or her official position or employment, except as authorized by this subpart.
(b) Each EPA officer or employee who has custody or possession of business information shall take appropriate measures to properly safeguard such information and to protect against its improper disclosure.
(c) Violation of paragraphs (a) or (b) of this section shall constitute grounds for dismissal, suspension, fine, or other adverse personnel action. Willful violation of paragraph (a) of this section may result in criminal prosecution under 18 U.S.C. 1905 or other applicable statute.
(d) Each contractor or subcontractor with EPA, and each employee of such contractor or subcontractor, who is furnished business information by EPA under $82.301(h), 2.302(h), 2.304(h), 2.305(h), 2.306(j), 2.307(h), or 8 2.308(i), shall use or disclose that in formation only as permitted by the contract or subcontract under which the information was furnished. Any violation of this paragraph shall constitute grounds for debarment or suspension of the contractor or contractor's employee in question. Willful violation of this paragraph may result in criminal prosecution. (41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40001, Sept. 8, 1978)
such category an EPA office (hereinafter referred to as a "control office") which shall have responsibility for taking actions (other than actions required to be taken by an EPA legal office) with respect to all information within such category.
(b) If a control office has been assigned responsibility for a category of business information, no other EPA office, officer, or employee may make available to the public (or otherwise disclose to persons other than EPA of. ficers and employees) any information in that category without first obtaining the concurrence of the control office. Requests under 5 U.S.C. 552 for release of such information shall be referred to the control office.
(c) A control office shall take the actions and make the determinations required by $ 2.204 with respect to all information in any category for which the control office has been assigned responsibility.
(d) A control office shall maintain a record of the following, with respect to items of business information in categories for which it has been assigned responsibility:
(1) Business confidentiality claims;
(2) Comments submitted in support of claims;
(3) Waivers and withdrawals of
(4) Actions and determinations by EPA under this subpart;
(5) Actions by Federal courts; and
(6) Related information concerning business confidentiality.
8 2.213 Designation by business of ad
dressee for notices and inquiries. (a) A business which wishes to designate a person or office as the proper addressee of communications from EPA to the business under this subpart may do so by furnishing in writing to the Freedom of Information Officer (A-101), Environmental Protection Agency, 401 M St. SW., Washington, D.C. 20460, the following information: the name and address of the business making the designation; the name, address, and telephone number of the designated person or ounice, and a request that EPA inquiries a munications (oral and written
8 2.212 Establishment of control offices
for categories of business information. (a) The Administrator, by order, may establish one or more mutually exclusive categories of business infor mation, and may designate for each