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§§2.209 through 2.215 apply without change to information to which this Section applies.

(d) [Reserved]

(e) Substantive criteria for use in comfidentiality determinations. Section 2.208 applies without Change to information to which this Section applies; however, no information to which this Section applies is voluntarily Submitted information.

(f) [Reserved]

(g)(1) Under section 104(e)(7)(A) of the Act (42 U.S.C. 9604(e)(7)(A)) any information to which this Section applies may be disclosed by EPA because of the relevance Of the information in a proceeding under the Act, notwithStanding the fact that the information Otherwise might be entitled to Confidential treatment under this Subpart. Disclosure of information to which this Section applies because Of its relevance in a proceeding shall be made only in accordance with this paragraph (g).

(2) The provisions of $2.301(g)(2) are to be used as paragraph (g)(2) of this Section.

(3) In Connection with any proceeding involving a decision by a presiding OffiCer after an evidentiary Or adjudicatory hearing, except with respect to litigation Conducted by a Federal Court, information to which this Section applies which nay be entitled to Confidential treatment may be made available to the public, or to one or more parties of record to the proceeding, upon EPA’s initiative, under this paragraph (g)(3). An EPA office proposing disclosure of information under this paragraph (g)(3) shall so notify the presiding officer in writing. Upon reCeipt. Of Such a notification, the presiding Officer Shall notify each affected business that disclosure under this paragraph (g)(3) has been proposed, and Shall afford each such business a period for comment found by the presiding officer to be reasonable under the cirCumstanceS. Information may be disClosed under this paragraph (g)(3) only if, after consideration of any timely COmmentS Submitted by the business, the EPA office determines in writing that, for reasons directly associated with the conduct of the proceeding, the Contemplated disclosure would serve the public interest, and the presiding

Officer determines in writing that the information is relevant to a matter in Controversy in the proceeding. The preSiding Officer may condition disclosure Of the information to a party of record On the making Of Such protective arrangement.S and COmmitments as he finds to be warranted. Disclosure to One Or more parties of record, under protective arrangements or commitments, Shall not, of itself, affect the eligibility of information for confidential treatment under the other proviSions of this subpart. Any affected business Shall be given at least 5 days notice by the presiding officer prior to making the information available to the public Or to one or more of the parties of record to the proceeding. (4) In Connection with any proceeding involving a decision by a presiding offiCer after an evidentiary or adjudicatory hearing, except with respect to litigation COnducted by a Federal Court, information to which this Section applies which may be entitled to Confidential treatment may be made available to One or more parties of record to the proceeding, upon request, of a party, under this paragraph (g)(4). A party Of record seeking disclosure of information shall direct his request to the presiding Officer. Upon receipt of Such a request, the presiding Officer Shall notify each affected business that disclosure under this paragraph (g)(4) has been requested, and shall afford each Such business a period for Comment found by the presiding officer to be reasonable under the Circumstances. Information may be disclosed to a party Of record under this paragraph (g)(4) Only if, after consideration of any timely comments Submitted by the business, the presiding officer determines in Writing that: (i) The party of record has Satisfactorily Shown that with respect to a significant matter which is in controversy in the proceeding, the party’s ability to participate effectively in the proceeding will be Significantly impaired unless the information is disclosed to him; and (ii) Any harm to an affected business that would result from the disclosure is likely to be outweighed by the benefit to the proceeding and the public interest that would result from the discloSUlre. The presiding officer may condition disclosure of the information to a party of record on the making of such protective arrangements and commitments as he finds to be warranted. Disclosure to One or more parties of record, under protective arrangements or commitments, Shall not, of itself, affect the eligibility of information for confidential treatment under the other provisions of this Subpart. Any affected business Shall be given at least 5 days notice by the presiding officer prior to making the information available to One Or more of the parties of record to the proceeding. (5) In connection with cost recovery pre-litigation settlement negotiations under sections 107 or 122 of the Act (42 U.S.C. 9607, 9622), any information to which this section applies that may be entitled to confidential treatment may be made available to potentially reSponsible parties pursuant to a contractual agreement to protect the information. (6) In Connection with any cost recov– ery proceeding under Section 107 Of the Act, involving a decision by a presiding officer after an evidentiary or adjudicatory hearing, any information to which this Section applies that may be entitled to confidential treatment may be made available to One or more parties of record to the proceeding, upon EPA’s initiative, under this paragraph (g)(6). Such disclosure must be made pursuant to a Stipulation and protective Order signed by all parties to whom disclosure is made and by the presiding Officer. (h) Disclosure to authorized representatives. (1) Under Section 104(e)(7) of the Act (42 U.S.C. 9604(e)(7)), EPA possesses authority to disclose to any authorized representative of the Untied States any information to which this section ap— plies, notwithstanding the fact that the information might otherwise be entitled to COnfidential treatment under this subpart. Such authority may be exercised Only in accordance with paragraph (h)(2) or (h)(3) of this section. (2) The provisions of $2.301(h)(2) are to be used as paragraph (h)(2) of this Section.

(3) The provisions of $2.301(h)(3) are to be used as paragraph (h)(3) of this Section.

(4) At the time any information is furnished to a contractor, Subcontractor, Or State Or local government under this paragraph (h), the EPA office furnishing the information to the contractor, Subcontractor, or State or local government agency shall notify the COntractOr, Subcontractor, or State or local government agency that the information may be entitled to confidential treatment and that any knowing and willful disclosure of the information may subject the contractor, subContractor, or State or local government agency and its employees to penalties in Section 104(e)(7)(B) of the Act (42 U.S.C. 9604(e)(7)(B)).

[50 FR 51663, Dec. 18, 1985, as amended at 58 FR 462, Jan. 5, 1993]

§ 2.311 Special rules governing certain information obtained under the Motor Vehicle Information and Cost Savings Act.

(a) Definitions. For the purposes of this Section: (1) Act means the Motor Vehicle Information and Cost Savings Act, as amended, 15 U.S.C. 1901 et seq. (2) Average fuel economy has the meaning given it in Section 501(4) of the Act, 15 U.S.C. 2001(4). (3) Fuel economy has the meaning given it in Section 501(6) of the Act, 15 U.S.C. 2001(6). (4) Fuel economy data means any measurement Or Calculation of fuel economy for any model type and average fuel economy of a manufacturer under Section 503(d) of the Act, 15 U.S.C. 2003(d). (5) Manufacturer has the meaning given it in section 501(9) of the Act, 15 U.S.C. 2001(9). (6) Model type has the meaning given it in Section 501(11) of the Act, 15 U.S.C. 2001(11). (b) Applicability. This section applies Only to information provided to or Obtained by EPA under Title V, Part A of the Act, 15 U.S.C. 2001 through 2012. Information will be Considered to have been provided Or obtained under Title V, Part A of the Act if it was provided in response to a request, from EPA made for any purpose Stated in Title V, Part A, or if its Submission Could have been required under Title V Part A, regardless of whether Title V Part A was cited as the authority for any request for information Or whether the information was provided directly to EPA or through Some third perSon. (c) Basic rules which apply without change. Sections 2.201 through 2.207 and §§2.209 through 2.215 apply without change to information to which this section applies. (d) [Reserved] (e) Substantive criteria for use in comfidentiality determinations. Section 2.208 applies without change to information to which this section applies, except that information this is fuel economy data is not eligible for Confidential treatment. No information to which this section applies is Voluntarily Submitted information. (f) [Reserved] (g) Disclosure of information relevant to a proceeding. (1) Under section 505(d)(1) of the Act, any information to which this section applies may be released by EPA because of the relevance Of the information to a proceeding under Title V, Part A of the Act, notwithstanding the fact that the information. Otherwise might be entitled to confidential treatment under this subpart. Release of information to which this Section applies because Of its relevance to a proceeding Shall be made Only in a CCOrdance with this paragraph (g). (2) The provisions of $2.301(g)(2) are to be used as paragraph (g)(2) of this Section. (3) The provisions of $2.301(g)(3) are to be used as paragraph (g)(3) Of this Section. (4) The provisions of $2.301(g)(4) are to be used as paragraph (g)(3) Of this Section.

[50 FR 51663, Dec. 18, 1985]

Subport C–Testimony by Employees dnd Production of Documents in Civil Legal Proceedinds Where the United Stotes Is Not d Party

AUTHORITY: 5 U.S.C. 301; Reorganization Plan No. 3 of 1970, 5 U.S.C. App.; 33 U.S.C. 361(a); 42 U.S.C. 300j–9; 42 U.S.C. 6911a, 42 U.S.C. 7601(a).

SOURCE: 50 FR 32387, Aug. 9, 1985, unless Otherwise noted.

§ 2.401 Scope and purpose.

This Subpart sets forth procedures to be followed when an EPA employee is requested or Subpoenaed to provide testimony Concerning information acQuired in the course of performing offiCial duties or because of the employee’s Official Status. (In such cases, employ– eeS must State for the record that their testimony does not necessarily represent the Official position of EPA. If they are called to State the official poSition of EPA, they should ascertain that position before appearing.) These procedures also apply to subpoenas duces tecum for any document in the possession of EPA and to requests for Certification of copies of documents. (a) These procedures apply to: (1) State Court proceedings (including grand jury proceedings); (2) Federal civil proceedings, except where the United States, EPA Or anOther Federal agency is a party; and (3) State and local legislative and administrative proceedings. (b) These procedures do not apply: (1) TO matters which are not related to EPA; (2) TO Congressional requests or Subpoena.S for testimony Or documents; (3) Where employees provide expert witness Services as approved Outside activities in a CCOrdance With 40 CFR part 3, Subpart E (in Such Cases, employees must State for the record that the testimony represents their own views and does not necessarily represent the Official position of EPA); (4) Where employees voluntarily testify as private citizens with respect to environmental matters (in Such cases, employees must State for the record that the testimony represents their Own views and does not necessarily represent the Official position of EPA). (c) The purpose of this Subpart is to ensure that employees’ Official time is used Only for Official purposes, to maintain the impartiality of EPA among private litigants, to ensure that public funds are not used for private purposes and to establish procedures for approving testimony Or production of documents when clearly in the interestS Of EPA.

$2.402 . on presentation of testimony and production of documents.

(a) With the approval of the cognizant ASSistant Administrator, Office Director, Staff Office Director or Regional Administrator or his designee, EPA employees (as defined in 40 CFR 3.102 (a) and (b)) may testify at the reQuest of another Federal agency, or, where it is in the interests of EPA, at the request of a State or local government or State legislative committee.

(b) Except as permitted by paragraph (a) of this Section, no EPA employee may provide testimony or produce docunments in any proceeding to which this Subpart applies concerning information acquired in the course of performing Official duties or because of the employee’s official relationship with EPA, unless authorized by the General CounSel Or his designee under §§ 2.403 through 2.406.

§ 2.403 Procedures when voluntary testimony is requested.

A request for testimony by an EPA employee under $2.402(b) must be in writing and must state the nature of the requested testimony and the reaSons why the testimony would be in the interests of EPA. Such requests are immediately sent to the General Counsel Or his designee (Or, in the Case of employees in the Office Of Inspector General, the Inspector General or his des— ignee) with the recommendations of the employee’s supervisors. The General Counsel Or his designee, in ConSultation with the appropriate Assistant, Administrator, Regional Administrator, or Staff Office Director (or, in the Case of employees in the Office of Inspector General, the Inspector General Or his designee), determines whether compliance with the request would clearly be in the interests of EPA and responds as Soon as practicable.

§ 2.404 Procedures when an employee is subpoenaed.

(a) Copies Of Subpoenas must immediately be Sent to the General Counsel or his designee with the recommendations Of the employee's Supervisors. The General Counsel or his designee, in Consultation with the appropriate ASSistant Administrator, Regional Ad

ministrator or Staff Office Director, determines whether compliance with the Subpoena, would clearly be in the interests of EPA and responds as soon as practicable. (b) If the General Counsel or his des— ignee denies approval to Comply with the Subpoena, or if he has not acted by the return date, the employee must appear at the Stated time and place (unless advised by the General Counsel or his designee that the Subpoena, was not validly issued or served or that the Subpoena, has been withdrawn), produce a Copy of these regulations and respectfully refuse to provide any testimony Or produce any document.S. United States er rel. Touhy v. Ragem, 340 U.S. 462 (1951). (c) Where employees in the Office of Inspector General are Subpoenaed, the Inspector General or his designee makes the determination under paragraphs (a) and (b) of this section in COnSultation with the General Counsel. (d) The General Counsel will request the assistance of the Department of Justice or a U.S. Attorney where nec– eSSalry to represent, the interests of the Agency and the employee.

§ 2.405 Subpoenas duces tecum.

Subpoenas duces tecum for documents Or Other materials are treated the Same as Subpoenas for testimony. Unless the General Counsel or his designee, in Consultation with the appropriate AsSistant Administrator, Regional Administrator Or Staff Office Director (Or, as to employees in the Office of InSpector General, the Inspector General) determines that compliance with the Subpoena, is Clearly in the interests of EPA, the employee must appear at the Stated time and place (unless advised by the General Counsel or his designee that the Subpoena, was not validly iSSued Or Served Or that the Subpoena, has been withdrawn) and respectfully refuse to produce the Subpoenaed materialS. However, where a Subpoena duces tecum is essentially a written request for documents, the requested documents will be provided Or denied in a Ccordance with subparts A and B of this part where approval to respond to the Subpoena has not been granted.

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