finds that the business's procedural rights (submission of comments and opportunity to seek judicial review) should not be denied merely because EPA may characterize information as emission data.

61. Comment-Of the information to which §2.301 applies, only those "trade secrets" which are "methods of processes" are entitled to confidential treatment, under the Clean Air Act and its legislative history, and the regulation should not allow confidential treatment for other information.

Response The Administrator does not agree with this comment. The Congress supplied no definition of the terms it employed, and (as noted in the May 20, 1975, explanation of the proposed approach) the Administrator has been unable to conclude that the Congress intended to require public disclosure of the information which EPA must obtain from businesses in order to develop standards and perform its other emissions. Routine disclosure to the public of all that information would profoundly affect the business structure of the Nation in ways that have nothing to do with the purposes of the Clean Air Act.

62. Comment Proposed § 2.301 (g), pertaining to disclosure of information otherwise entitled to confidential treatment when the information is relevant to a matter in controversy in a proceeding, should allow such disclosure only in those proceedings which involve a public hearing, not in informal rulemaking proceedings.

Response The Administrator disagrees with this comment but recognizes that the proposed rule failed to properly acknowledge the differences that exist between proceedings which are conducted on the record and with parties of record, on the one hand, and proceedings of an informal nature, on the other. There can be no limited disclosure under protective arrangements in an informal rulemaking proceeding; if information is to be disclosed at all, it must be publicly disclosed. This and other differences between the two classes of proceedings have led the Administrator to conclude that there should be separate procedures to be used in informal proceedings, and the regulation has been modified accordingly. Separate procedures have also been established in the regulation as promulgated below for disclosure in on-the-record proceedings when disclosure is proposed by EPA, on the one hand, and by a party to the proceeding other than EPA, on the other.

63. Comment-There should be no disclosure of the type contemplated by §2.301 (g) unless the business has the right, as part of the proceeding, to argue against disclosure.

Response The regulation has been modified to make clear that a business has this right.

64. Comment-Information should be disclosable under proposed § 2.301 (g) only if it is actually found to be relevant to a matter in controversy in the proceeding.

Response The Administrator agrees with this comment, and the regulation has been modified appropriately.

65. Comment Information should be disclosed under proposed § 2.301 (g) only to those parties who have a "business or financial interest in the proceeding" or those who show that "the public interest would not be adequately served by EPA's representation."

Response The Administrator disagrees with this comment. The Administrator does not believe that the proceedings will produce the most broadly based and useful results if relevant information is routinely withheld from parties who lack a business interest and who may have a different perception than that of the Administrator of where the public interest lies. The criteria for disclosure to parties adequately protect against frivolous requests.

66. Comment-Proposed $ 2.301 (g) should prescribe the protective measures that should be required as a condition of disclosure to parties.

Response-The Administrator believes that, given the variety of circumstances that arise in different proceedings, it is impossible to anticipate all problems. Details in this regard are, it is felt, best left to the sound discretion of the administrative law judge or other presiding officer.

67. Comment The proposed rule's 10-day waiting period for the comments of a business on the proposed disclosure of information it submitted will unduly delay many proceedings. Moreover, where a delay in releasing information does ensue, in appropriate cases a corresponding delay in the proceedings should be granted for the benefit of the party which requested disclosure of the information. Finally, the existence of a court order requiring a proceeding to be com

pleted by a certain date should be listed as another basis for shortening the normal 10-day comment period.

Response The regulation, as promulgated below, now eliminates any reference to a fixed period for a business's comments and instead relies on the discretion of the administrative law judge or other presiding officer to set a comment period reasonable in the circumstances. With respect to suspending the proceedings pending decision on a request for information, this is also a matter that should be left to the presiding officer's sound discretion.

68. Comment-A business's comments on a proposed rule should not be disclosable under proposed § 2.301 (g), because if a business believes its comments might be made public over its objections, it may refrain from submitting the comments.

Response This comment may be based on a misunderstanding of proposed 2.301 (g), which is concerned with certain circumstances under which any information to which § 2.301 applies may be disclosed. (Proposed § 2.301 would apply only to information the production of which EPA may legally compel.) The Administrator does not believe that there is a basis for discrimination in treatment of information based on whether or not EPA obtained it in comments in a rulemaking proceeding.

69. Comment-Contractors should not be considered "authorized representatives" under § 2.301 (h); the legislative history of the Clean Air Act and Federal Water Pollution Control Act (FWPCA) indicate that only EPA officers or employees may be regarded as authorized representatives.

Response The Administrator disagrees with this comment. There is legislative history pertaining to the FWPCA which indicates, with reference to FWPCA section 308(a) (in which the term "authorized representative" is used in a different context and in a semantically different manner) that only EPA officers or employees may act as "authorized representatives" for the purpose of exercising a right of entry onto certain private premises. But in section 114(c), 208(b) and 307(a) of the Clean Air Act, and section 308(b) of the FWPCA, it appears clear that by authorizing disclosure to "officers, employees, or authorized representatives" of the United States (emphasis added), Congress meant something more than disclosure only to officers and employees. It also appears that the language in the legislative history of the FWPCA concerning rights of entry was based on a reference to section 208(a) of the Clean Air Act, where the right of entry is explicitly given only to officers or employees.

70. Comment-Information should be disclosed to an EPA contractor under proposed § 2.301 (h) only if the affected business gives its prior consent.

Response The Administrator disagrees with this comment, which would have the effect of nullifying disclosure to contractors (the rule elsewhere states that information may be disclosed if the business consents). Much of EPA's mission must be performed by use of the resources which contractors offer. If the comment was adopted, businesses could seriously hinder EPA efforts simply by refusing to consent to disclosure.

71. Comment-Information should be disclosed to a contractor under proposed $ 2.301 (h) only if the affected business has been given prior notice of the contemplated disclosure.

Response The Administrator agrees that prior notice should be given except when to do so would impair the working of an EPA program. The rule as promulgated below has been modified accordingly.

72. Comment-Information should be disclosed to a contractor under proposed $2.301 (h) only if affected businesses are reasonably protected by the arrangements between EPA and the contractor.

Response The Administrator agrees with this comment, and the rule as promulgated below has been modified to make more specific the contractor's undertakings, to require recordkeeping by EPA concerning disclosures, to require that the contract recognize explicitly the third-party beneficiary status of the affected businesses, to require EPA to determine that the disclosure is necessary for the contract work, and to require EPA to give affected businesses prior notice in most cases of disclosure of information in which they have an interest.

73. Comment-Before EPA discloses information to contractors under proposed & 2.301 (h), an investigation should be made into any possible competitive conflicts of interest the contractor may have.

Response The Administrator believes that the protective measures outlined in the Response to Comment 72 should adequately protect affected businesses in

most cases, and notes that more stringent protective measures may be taken in connection with individual contracts.

74. Comment-Information should be disclosed to state or local governmental agencies under proposed § 2.301 (h) only if the affected business consents or if the state or local agency agrees that the information shall not be further disclosed and that state or local public information acts shall not apply to the information.

Response The Administrator disagrees with the comment. Many of the statutes for which EPA has the primary Federal responsibility (including the Clean Air Act) envision close working relationships between EPA and state and local pollution control agencies, and such statutes often assign significant responsibilities to state and local agencies. EPA desires to be able to provide such agencies with information it has which would be useful to them. However, the Administrator recognizes the fact that the other provisions of this subpart would afford inadequate protection to businesses if disclosure of information to state and local agencies were made without attention to the treatment that would be afforded to such information by them. Accordingly, the rule as promulgated below has been modified to provide that information may be disclosed to state or local agencies under § 2.301 (h) only if the state or locality itself could have required the business to disclose the information, or if the state or locality has shown to EPA's satisfaction that the information will be adequately protected. 75. Comment-Various commenters raised the same points with respect to the definition of "effluent data” in proposed § 2.302(a)(2) as they raised with respect to the definition of "emission data."

Response-See Responses 52 through 61.

76. Comment-Various commenters raised the same points with respect to release of information relevant to a matter in controversy in a proceeding under proposed §§ 2.302 (g), 2.303 (g), and 2.304(g) as they raised with respect to proposed § 2.301 (g).

Response See Responses to Comments 62 through 68.

77. Comment-Various commenters raised the same points with respect to release of information to authorized representatives under proposed §§ 2.302 (h) and 2.304 (h) as they raised with respect to proposed § 2.301 (h). Response-See Responses to Comments 69 through 74.

78. Comment-Proposed § 2.307 (g), which would have established special substantive criteria for use in connection with information obtained in applications for registration of pesticides under the Federal Insecticide, Fungicide and Ro denticide Act, as amended (FIFRA), 7 U.S.C. 136 et seq., would exceed the Administrator's authority and violate 7 U.S.C. 136h. Proposed § 2.307 (g) would deny confidential treatment to certain categories of research data and related information, but 7 U.S.C. 136h, it is asserted, requires confidential treatment for some of that data. Confidentiality determinations should be made only on a case-by-case basis.

Response The Administrator disagrees with this comment. However, for reasons unrelated to the comment, the special substantive criteria have been deleted from § 2.307. This action has been taken because under P.L. 94-140. (November 28, 1975), 89 Stat. 751, the Administrator may not promulgate regulations which implement FIFRA without first submitting the regulations to an external review process. In view of the delay that would be involved in obtaining such review, the provisions concerning substantive criteria have been deleted. (On March 5, 1976, the General Counsel issued an interpretative determination concerning the entitlement of such information to confidential treatment.)

In addition to the changes to the proposed rule which are discussed in the Comments and Responses above, other noteworthy changes are:

(1) The definition of "entitled to confidential treatment" in proposed § 2.201 (f) has been deleted as unnecessary.

(2) Definitions of "EPA office" "EPA legal office," and "working day" have been added to § 2.201.

(3) Section 2.202 has been modified to emphasize the need for alertness to the possibility that different types of information within a single document may require different treatment.

(4) Section 2.204 (b) has been simplified by deletion of language which concerned the effect of a prior determination holding that an item of information is not entitled to confidential treatment. The treatment of such information is covered by § 2.204 (d) (2).

(5) The rule has been modified in several places to emphasize the fact that two or more businesses may have an interest in preserving the confidentiality of the same item of information, and that it may be necessary to resolve separately the confidentiality claims of each business. See §§ 2.204 (c)(1), 2.204(d), and 2.205(d) (3).

(6) The rule has been modified to acknowledge that a business may desire confidential treatment of an item of information only for a stated period, after which it would not object to public disclosure of the information. See §§ 2.203 (b), 2.204 (e) (4) (ii), 2.205(d) (2), 2.205(e), and 2.205 (f) (1) (ii).

(7) The requirement that information must bear a confidentiality claim when submitted if waiver of the claim is to be avoided will apply to information received on or after the effective date of the rule, rather than only to information received on or after the 60th day the rule's effective date. This change is justified by the fact that a claim will be determined to have been waived only if the business first had been warned specifically that it must assert its claim at the time of submission of the information.

(8) Section 2.204 (c) has been modified to indicate that when a request under 5 U.S.C. 552 is pending and EPA must inquire whether a business desires to assert a confidentiality claim, any claim in response to that inquiry must be made not later than one working day after the inquiry is made. The Administrator has determined that this change will not impose undue burdens on businesses, because of the ease with which a claim may be asserted and the business's opportunity to designate a representative for the purpose of handling such inquiries (see § 2.213). (9) Changes have been made in several places in the rule to indicate that although various deadlines must be met when there is pending a request for information under 5 U.S.C. 552, a less rigid timetable may be applied when no such request is pending.

(10) Section 2.204 (e) of the rule has been modified to conform the list of topics to be addressed by a business in its comments more closely to the substantive criteria under § 2.208.

(11) Section 2.205 (f) has been modified to confine to essentials the information which an EPA office must forward to the EPA legal office.

(12) Section 2.205(a) has been modified to provide a timetable for issuance of a final determination by an EPA legal office after a "procedural" denial of a request under 5 U.S.C. 552.

(13) Section 2.205 (h) has been modified to more clearly set forth the procedure by which an EPA legal office may overrule or modify an earlier determination holding that an item of information is entitled to confidential treatment.

(14) A number of changes have been made to § 2.307 and § 2.308, designed to simplify their application and increase the extent to which they parallel language in other sections of the subpart.

(15) Section 2.309 has been rewritten to eliminate unneeded elaborateness and increase the extent to which the section parallels other provisions of the subpart. [FR Doc.76-25620 Filed 8-31-76;8:45 am]

[Exhibit 29]

EPA'S PROPOSED RULES UNDER TOXIC SUBSTANCES CONTROL ACT

[Federal Register, Aug. 2, 1977]

ENVIRONMENTAL PROTECTION AGENCY

[40 CFR Parts 700 and 710]

[OTS-081002; FRL 764–1]

TOXIC SUBSTANCES CONTROL

General Provisions and Inventory Reporting Requirements; Supplemental Notice; Public Meeting

Agency Environmental Protection Agency.

Action Proposed Rules; Notice of Public Meeting.

Summary: This notice reproposes the inventory reporting regulations first proposed on March 9, 1977 in the Federal Register and supplemented thereafter. Specifically, these reproposed regulations would require some manufacturers:

(1) To report the identity of each chemical substance manufactured (or imported) for a commercial purpose and the site of such manufacture;

(2) To estimate the amount of each such chemical substance manufactured or imported at each site;

(3) To indicate whether each such chemical substance is manufactured and used only within one site; and

(4) To indicate whether the respondent is a manufacturer, processor, and/or importer of each such chemical substance.

In addition, these reproposed regulations would authorize certain other persons to report such information at their discretion.

Dates: Written comments must be received on or before September 16, 1977. EPA will hold a public meeting in Washington, D.C. on August 24, 1977 to provide an opportunity for oral comments. Details are provided below.

Address: Comments should be addressed to the Federal Register Section (WH557), Office of Toxic Substances, Attention : Vicki Briggs, Environmental Protection Agency, 401 M Street SW., Washington, D.C. 20460. Comments should be filed in triplicate and bear the identifying notation OTS-081002. All written comments filed pursuant to this notice will be available for public inspection at that office from 8:30 a.m. to 4:00 p.m. Monday through Friday.

For further information contact: Mr. John Ritch, Office of Industry Assistance, Office of Toxic Substances (TS-788), Environmental Protection Agency, 401 M Street, SW., Washington, D.C. 20460, 202-755-0535.

Supplementary information: These regulations are proposed under the authority of subsection 8(a) of the Toxic Substances Control Act (90 Stat. 2003; 15 U.S.C. 2601 et seq.; hereinafter referred to as TSCA).

On March 9, 1977 EPA first published in the Federal Register (42 FR 13130) proposed inventory reporting regulations to govern reporting of chemical substances for inclusion on an inventory of chemical substances required by subsection 8(b) of TSCA. On April 12, 1977, EPA published a supplemental notice of proposed rulemaking in the Federal Register (42 FR 19298) providing additional information pertaining to the proposed inventory regulations. This notice set forth instructions for use of a Candidate List of Chemical Substances and specified minerals which EPA proposed to include in the inventory of chemical substances. On April 28, 1977, EPA published a notice of availability of the Candidate List of Chemical Substances for use in reporting chemicals for inclusion on the inventory (42 FR 21639). In addition, on July 8, 1977, the Agency published a notice to amend the procedures for securing a copy of the Candidate List on computer-readable tape (42 FR 35183).

On April 18, 1977, EPA held a public meeting in Washington, D.C. to provide interested persons an opportunity to comment publicly on the proposed regulations. In addition, approximately 200 persons have submitted written comments on the proposed regulations. Both the transcript of the public meeting and the written comments are available for inspection by the public in the Federal Register Office of the Office of Toxic Substances.

As a result of these comments, EPA has decided to repropose the inventory reporting regulations to require additional reporting by some persons and less reporting by others.

Participation in the Public Meeting

The public meeting on these proposed regulations will be on Wednesday, August 24, 1977 from 9:00 a.m. to 4:30 p.m. in the Thomas Jefferson Auditorium of the Department of Agriculture, 14th and Independence Avenue, SW., Washington, D.C. Persons who want to reserve time to present their comments at that meeting should contact Vicki Briggs at the address provided above or telephone 202426-9819. Each person may request up to 15 minutes although less time may be allotted depending upon the number of participants. EPA will make a transcript of the proceedings for public inspection.

Status of Reproposal

The record of this rulemaking will include all comments received in response to the earlier notices of proposed rulemaking as well as the comments received in response to this notice. The public is encouraged to review the earlier notices of proposed rulemaking if any questions arise concerning the context of these reproposed regulations. While EPA would welcome comments on any aspect of these proposed regulations, persons are encouraged to direct their comments