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(2) The request, if any, sets forth (ii) The other agency has obtained the official purpose for which the in the consent of each affected business formation is needed;
to the proposed disclosure; or (3) When the information has been (iii) The other agency has obtained a claimed as confidential or has been de written statement from the EPA Gentermined to be confidential, the re eral Counsel or an EPA Regional sponsible EPA office provides notice to Counsel that disclosure of the inforeach affected business of the type of mation would be proper under this information to be disclosed and to subpart. whom it is to be disclosed. At the dis (d) Court-ordered disclosure. EPA cretion of the office, such notice may may disclose any business information be given by notice published in the in any manner and to the extent orFEDERAL REGISTER at least 10 days dered by a Federal court. Where possiprior to disclosure, or by letter sent by ble, and when not in violation of a spe. certified mail return receipt requested cific directive from the court, the EPA or telegram either of which must be office disclosing information claimed received by the affected business at as confidential or determined to be least 10 days prior to disclosure. How- confidential shall provide as much adever, no notice shall be required when vance notice as possible to each affectEPA furnishes business information to ed business of the type of information another Federal agency to perform a to be disclosed and to whom it is to be function on behalf of EPA, including disclosed, unless the affected business but not limited to
has actual notice of the court order. (i) Disclosure to the Department of At the discretion of the office, subject Justice for purposes of investigation or to any restrictions by the court, such prosecution of civil or criminal viola notice may be given by notice in the tions of Federal law related to EPA ac FEDERAL REGISTER, letter sent by certi. tivities;
fied mail return receipt requested, or (ii) Disclosure to the Department of telegram. Justice for purposes of representing
(e) Disclosure within EPA. An EPA EPA in any matter; or
office, officer, or employee may dis(iii) Disclosure to any Federal
close any business information to anagency for purposes of performing an
other EPA office, officer, or employee EPA statutory function under an
with an official need for the informainteragency agreement.
tion. (4) EPA notifies the other agency of
(f) Disclosure with consent of busiany unresolved business confidential
ness. EPA may disclose any business ity claim covering the information and
information to any person if EPA has of any determination under this sub
obtained the prior consent of each af. part that the information is entitled to
fected business to such disclosure. confidential treatment, and that fur
(g) Record of disclosures to be mainther disclosure of the information may
tained. Each EPA office which disbe a violation of 18 U.S.C. 1905; and
closes information to Congress, a com(5) The other agency agrees in writ
mittee or subcommittee of Congress, ing not to disclose further any infor
the Comptroller General, or another mation designated as confidential
Federal agency under the authority of unless
paragraph (b) or (c) of this section,
shall maintain a record of the fact of (i) The other agency has statutory authority both to compel production
such disclosure for a period of not less of the information and to make the
than 36 months after such disclosure.
Such a record, which may be in the proposed disclosure, and the other
form of a log, shall show the name of agency has, prior to disclosure of the information to anyone other than its
the affected businesses, the date of officers and employees, furnished to
disclosure, the person or body to each affected business at least the
whom disclosure was made, and a desame notice to which the affected
scription of the information disclosed. business would be entitled under this (41 FR 36902, Sept. 1, 1976, as amended at subpart;
43 FR 40000, Sept. 8, 1978)
$ 2.210 Nondisclosure for reasons other contractor or subcontractor, who is
than business confidentiality or where furnished business information by disclosure is prohibited by other stat. EPA under $82.301(h), 2.302(h), ute.
2.304(h), 2.305(h), 2.306(j), 2.307(h), or (a) Information which is not entitled
$ 2.308(i), shall use or disclose that into confidential treatment under this formation only as permitted by the subpart shall be made available to the
contract or subcontract under which public (using the procedures set forth
the information was furnished. Any in 88 2.204 and 2.205) if its release is violation of this paragraph shall conrequested under 5 U.S.C. 552, unless
stitute grounds for debarment or susEPA determines (under Subpart A of pension of the contractor or contracthis part) that, for reasons other than tor's employee in question. Willful vioreasons of business confidentiality, the
lation of this paragraph may result in information is exempt from manda criminal prosecution. tory disclosure and cannot or should
(41 FR 36902, Sept. 1, 1976, as amended at not be made available to the public.
43 FR 40001, Sept. 8, 1978) Any such determination under subpart A shall be coordinated with actions 8 2.212 Establishment of control offices taken under this subpart for the pur for categories of business information. pose of avoiding delay in responding to
(a) The Administrator, by order, requests under 5 U.S.C. 552. (b) Notwithstanding any other provi
may establish one or more mutually sion of this subpart, if any statute not
exclusive categories of business inforcited in this subpart appears to re
mation, and may designate for each quire EPA to give confidential treat
such category an EPA office (hereinment to any business information for
after referred to as a "control office") reasons of business confidentiality, the
which shall have responsibility for matter shall be referred promptly to
taking actions (other than actions rean EPA legal office for resolution.
quired to be taken by an EPA legal Pending resolution, such information
office) with respect to all information shall be treated as if it were entitled to
within such category. confidential treatment.
(b) If a control office has been as
signed responsibility for a category of 8 2.211 Safeguarding of business informa business information, no other EPA
tion; penalty for wrongful disclosure. office, officer, or employee may make (a) No EPA officer or employee may
available to the public (or otherwise disclose, or use for his or her private
disclose to persons other than EPA ofgain or advantage, any business infor
ficers and employees) any information mation which came into his or her
in that category without first obtainpossession, or to which he or she
ing the concurrence of the control gained access, by virtue of his or her
office. Requests under 5 U.S.C. 552 for official position or employment,
release of such information shall be except as authorized by this subpart.
referred to the control office. (b) Each EPA officer or employee
(c) A control office shall take the acwho has custody or possession of busi
tions and make the determinations reness information shall take appropri.
quired by $ 2.204 with respect to all inate measures to properly safeguard
formation in any category for which such information and to protect
the control office has been assigned against its improper disclosure.
responsibility. (c) Violation of paragraphs (a) or (b) (d) A control office shall maintain a of this section shall constitute grounds record of the following, with respect for dismissal, suspension, fine, or to items of business information in other adverse personnel action. Willful categories for which it has been asviolation of paragraph (a) of this sec signed responsibility: tion may result in criminal prosecu (1) Business confidentiality claims; tion under 18 U.S.C. 1905 or other ap
(2) Comments submitted in support plicable statute.
of claims; (d) Each contractor or subcontractor (3) Waivers and withdrawals of with EPA, and each employee of such claims;
(4) Actions and determinations by EPA under this subpart;
(5) Actions by Federal courts; and
(6) Related information concerning business confidentiality.
(c) The Freedom of Information Officer shall, as quickly as possible, notify all EPA offices that may possess information submitted by the business to EPA, the Regional Freedom of Information Offices, the Office of General Counsel, and the offices of Regional Counsel of any designation received under this section. Businesses making designations under this section should bear in mind that several working days may be required for dissemination of this information within EPA and that some EPA offices may not receive notice of such designations. (41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40001, Sept. 8, 1978)
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 office; and a request that EPA inquiries and communications (oral and written) under this subpart, including inquiries and notices which require reply within deadlines if the business is to avoid waiver of its rights under this subpart, be furnished to the designee pursuant to this section. Only one person or office may serve at any one time as a business's designee under this subpart.
(b) If a business has named a designee under this section, the following EPA inquiries and notices to the business shall be addressed to the desig. nee:
(1) Inquiries concerning a business's desire to assert a business confidentiality claim, under $ 2.204(c)(2)(i)(A);
(2) Notices affording opportunity to substantiate confidentiality claims. under $ 2.204(d)(1) and g 2.204(e);
(3) Inquires concerning comments, under $ 2.205(b)(4);
(4) Notices of denial of confidential treatment and proposed disclosure of information, under $ 2.205(f);
(5) Notices concerning shortened comment and/or waiting periods under $ 2.205(g);
(6) Notices concerning modifications or overrulings of prior determinations, under $ 2.205(h);
(7) Notices to affected businesses under $ $ 2.301(g) and 2.301(h) and analogous provisions in $ $ 2.302, 2.303, 2.304, 2.305, 2.306, 2.307, and 2.308; and
(8) Notices to affected businesses under $ 2.209.
$ 2.214 Defense of Freedom of Informa
tion Act suits; participation by affected business. (a) In making final confidentiality determinations under this subpart, the EPA legal office relies to a large extent upon the information furnished by the affected business to substantiate its claim of confidentiality. The EPA legal office may be unable to verify the accuracy of much of the information submitted by the affected business.
(b) If the EPA legal office makes a final confidentiality determination under this subpart that certain business information is entitled to confidential treatment, and EPA is sued by a requester under the Freedom of Information Act for disclosure of that information, EPA will:
(1) Notify each affected business of the suit within 10 days after service of the complaint upon EPA;
(2) Where necessary to preparation of EPA's defense, call upon each affected business to furnish assistance; and
(3) Not oppose a motion by any affected business to intervene as a party to the suit under rule 24(b) of the Federal Rules of Civil Procedure.
(c) EPA will defend its final confidentiality determination, but EPA expects the affected business to cooperate to the fullest extent possible in this defense. (43 FR 40001. Sept. 8, 1978)
8 2.215 Confidentiality agreements.
section is proper, the General Counsel (a) No EPA officer employee con. must find that the agreement statestractor, or subcontractor shall enter
(1) The purpose for which the inforinto any agreement with any affected
mation is required by EPA; business to keep business information
(2) The conditions under which the confidential unless such agreement is agency will furnish the i
agency will furnish the information to consistent with this subpart. No EPA
EPA; officer, employee, contractor, or sub (3) The information subject to the contractor shall promise any affected agreement; business that business information will (4) That the agreement does not be kept confidential unless the prom- cover information acquired by EPA ise is consistent with this subpart.
from another source; (b) If an EPA office has requested (5) The manner in which EPA will information from a State, local, or treat the information; and Federal agency and the agency refuses (6) That EPA will treat the informato furnish the information to EPA be- tion in accordance with the agreement cause the information is or may con subject to an order of a Federal court stitute confidential business informa- to disclose the information. tion, the EPA office may enter into an (e) EPA will treat any information agreement with the agency to keep
acquired pursuant to an agreement the information confidential, notwith
under paragraph (b) of this section in standing the provisions of this sub
accordance with the procedures of this part. However, no such agreement
subpart except where the agreement shall be made unless the General
specifies otherwise. Counsel determines that the agreement is necessary and proper.
[43 FR 40001, Sept. 8, 1978] (c) To determine that an agreement proposed under paragraph (b) of this
88 2.216-2.300 (Reserved) section is necessary, the General Counsel must find:
8 2.301 Special rules governing certain in(1) The EPA office requesting the
formation obtained under the Clean information needs the information to
Air Act. perform its functions;
(a) Definitions. For the purpose of (2) The agency will not furnish the this section: information to EPA without an agree. (1) “Act” means the Clean Air Act, ment by EPA to keep the information as amended, 42 U.S.C. 7401 et seq. confidential; and
(2) (i) “Emission data" means, with (3) Either:
reference to any source of emission of (i) EPA has no statutory power to any substance into the aircompel submission of the information (A) Information necessary to deterdirectly from the affected business, or mine the identity, amount, frequency,
(ii) While EPA has statutory power concentration, or other characteristics to compel submission of the informa (to the extent related to air quality) of tion directly from the affected busi any emission which has been emitted ness, compelling submission of the in by the source (or of any pollutant reformation directly from the business sulting from any emission by the would
source), or any combination of the (A) Require time in excess of that foregoing; available to the EPA office to perform
(B) Information necessary to deterits necessary work with the informa- mine the identity, amount, frequency, tion,
concentration, or other characteristics (B) Duplicate information already
(to the extent related to air quality) of collected by the other agency and the emissions which, under an applicaoverly burden the affected business, or ble standard or limitation, the source
(C) Overly burden the resources of was authorized to emit (including, to EPA.
the extent necessary for such pur(d) To determine that an agreement poses, a description of the manner or proposed under paragraph (b) of this rate of operation of the source); and
the Act, 42 U.S.C. 7411, or any emission standard under section 112 of the Act, 42 U.S.C. 7412, (B) of determining whether any person is in violation of any such standard or any requirement of such a plan, or (C) of carrying out section 303 of the Act, 42 U.S.C. 7603;
(ii) Provided or obtained under section 208 of the Act, 42 U.S.C. 7542, by any manufacturer, for the purpose of enabling the Administrator to determine whether such manufacturer has acted or is acting in compliance with the Act and regulations under the Act;
(C) A general description of the location and/or nature of the source to the extent necessary to identify the source and to distinguish it from other sources (including, to the extent necessary for such purposes, a description of the device, installation, or operation constituting the source).
(ii) Notwithstanding paragraph (a)(2)(i) of this section, the following information shall be considered to be “emission data" only to the extent necessary to allow EPA to disclose publicly that a source is (or is not) in compliance with an applicable standard or limitation, or to allow EPA to demonstrate the feasibility, practica bility, or attainability (or lack thereof) of an existing or proposed standard or limitation:
(A) Information concerning research, or the results of research, on any project, method, device or installation (or any component thereof) which was produced, developed, installed, and used only for research purposes; and
(B) Information concerning any product, method, device, or installation (or any component thereof) designed and intended to be marketed or used commercially but not yet so marketed or used.
(3) "Standard or limitation" means any emission standard or limitation established or publicly proposed pursuant to the Act or pursuant to any regulation under the Act.
(4) “Proceeding" means any rulemaking, adjudication, or licensing conducted by EPA under the Act or under regulations which implement the Act, except for determinations under this subpart.
(5) "Manufacturer" has the meaning given it in section 216(1) of the Act, 42 U.S.C. 7550(1).
(b) Applicability. (1) This section applies to business information which was
(i) Provided or obtained under section 114 of the Act, 42 U.S.C. 7414, by the owner or operator of any station ary source, for the purpose (A) of de veloping or assisting in the development of any implementation plan under section 110 or 111(d) of the Act, 42 U.S.C. 7410, 7411(d), any standard of performance under section 111 of
(iii) Provided in response to a subpoena for the production of papers, books, or documents issued under the authority of section 307(a) of the Act, 42 U.S.C. 7607(a).
(2) Information will be considered to have been provided or obtained under section 114 of the Act if it was provided in response to a request by EPA made for any of the purposes stated in section 114, or if its submission could have been required under section 114, regardless of whether section 114 was cited as the authority for any request for the information, whether an order to provide the information was issued under section 113(a) of the Act, 42 U.S.C. 7413(a), whether an action was brought under section 113(b) of the Act, 42 U.S.C. 7413(b), or whether the information was provided directly to EPA or through some third person.
(3) Information will be considered to have been provided or obtained under section 208 of the Act if it was provided in response to a request by EPA made for any of the purposes stated in section 208, or if its submission could have been required under section 208, regardless of whether section 208 was cited as the authority for any request for the information, whether an action was brought under section 204 of the Act, 42 U.S.C. 7523, or whether the information was provided directly to EPA or through some third person.
(4) Information will be considered to have been provided or obtained under section 307(a), of the Act if it was provided in response to a subpoena issued under section 307(a), or if its production could have been required by subpoena under section 307(a), regardless of whether section 307(a) was cited as