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The above commitment to grant advance notice shall be effective for a period of three years from the date of this letter, at the end of which time (company name) may renew its request with justification.

The above notice provisions shall not apply to any information which (1) is now in the public domain; (2) enters the public domain from a source other than the Commission or its employees; (3) was in the Commission's possession prior to disclosure to the Commission by (company name); or (4) is supplied to the Commission or its employees by a third party lawfully in possession thereof. Nothing in the foregoing sentence, however, will constitute a waiver by (company name) of any restrictions imposed by law on the Commission's use of any such information, however obtained.

The foregoing assurances are given with the understanding that in the event of a judicial proceeding or the issuance of an administration complaint in connection with this matter, the confidential status of the specified information and the limitations on its disclosure shall be governed solely by the provisions, as applicable, of the appropriate judicial rules or the Commission's Rules of Practice, Part 3-Rules of Practice for Adjudicative Proceedings.

By direction of the Commission,

[Exhibit 28]

CHARLES A. TOBIN, Secretary.

EPA REGULATIONS ON CONFIDENTIALITY OF BUSINESS INFORMATION (FEDERAL REGISTER, SEPT. 1, 1976)

TITLE 40-PROTECTION OF ENVIRONMENT

[FRL 567-7]

Chapter I-Environmental Protection Agency

Requests for Information; Confidentiality of Business Information

On May 20, 1975, the Environmental Protection Agency (EPA) caused to be published in the FEDERAL REGISTER a document (40 FR 21987) proposing to amend 40 CFR Part 2 by adding a new Subpart B entitled "Confidentiality of Business Information." Certain corrections and revisions to that document were made by a document published in the FEDERAL REGISTER on July 9, 1975 (40 FR 28814). Interested persons were given until July 22, 1975, to submit written comments, suggestions, or objections. Some 60 comments were received; commenters included trade associations, business firms, environmental organizations, state agencies, and others. Full and careful consideration was given to all written comments received.

As promulgated below, the rule reflects a number of changes from the proposed rule. Many of these changes were suggested by comments on the proposed rule made by interested members of the public; others were found desirable in order to simplify and clarify various provisions, even though they were not specifically suggested by comments from the public. The changes do not introduce significant variations from the subject matter and issues presented in the May 20 and July 9, 1975, documents. A summary of the significant comments, the Administrator's responses to those comments, and the other changes that have been made appear as Appendix A. The Preamble to the May 20, 1975, document also discussed many of the issues presented by this rule-making proceeding.

The purpose of Subpart B is to establish and make known to the public the rules and procedures which EPA will use in handling information gathered by EPA which may be entitled confidential treatment for reasons of business confidentiality. The regulation represents EPA's attempt to devise a procedure which protects the interests of the businesses which furnish information to EPA, the interests of members of the public who request that EPA disclose such information, and the interests of EPA in carrying out it statutory missions. As stated more fully in the Preamble to the May 20 document, these various interests may from time to time be in conflict. Businesses have recently expressed concern that Federal agencies may disclose proprietary information the agencies possess and

thereby harm the businesses. On the other hand, members of the public have asserted that understanding and criticizing Government proposals or decisions is difficult or impossible if the business data upon which the Government relied are unavailable for scrutiny. EPA understands the importance of both these arguments and, in addition, is aware that the continuing flow of information from businesses needed for sound EPA decisionmaking may be affected adversely if businesses do not feel that EPA gives full and fair consideration to their confidentiality claims.

Subpart B, as promulgated below, establishes procedures and substantive rules designed to: Limit the likelihood of inadvertent disclosure of confidential business information; afford businesses a fair opportunity both to assert a confidentiality claim and to substantiate the claim prior to an EPA ruling on the claim; allow a business to seek judicial review of an EPA ruling unfavorable to it; protect the interests of members of the public who request disclosure of business information under the Freedom of Information Act, 5 U.S.C. 552; and furnish guidance to those EPA officers and employees who must deal with confidentiality claims and requests for information while carrying out other important Agency business. Subpart B consists of a series of generally applicable rules (§§ 2.201-2.213) and certain special rules which modify the general rules when necessary to implement several statutes under which EPA operates and which contain special provisions governing the treatment of business information.

A revision of Subpart A of 40 CFR Part 2 is also promulgated below. (Subpart A contains the Agency's basic regulations concerning the treatment of requests for information under 5 U.S.C. 552). Many of the changes to Subpart A are merely matters of style designed to more clearly set forth procedural rules which were stated in the earlier version of the subpart. Former § 2.107 has been redesignated as § 2.106, and a new § 2.107 has been added, dealing with the treatment of misdirected written requests and oral requests. The subpart has been revised in several places to indicate more clearly that a discretionary decision to withhold exempt documents should be based on a finding that the public interest would not be served by disclosure. Section 2.119(b) has been revised to indicate that matters exempt under 5 U.S.C. 552 (b) (8) or (b) (9) normally will not be disclosed as a matter of policy. Section 2.120 has been extensively revised to state additional examples of search and duplication efforts for which the fee will be the actual direct cost to EPA, to indicate items for which no charge shall be made, and to clarify the procedure to be used in considering requests for reduction of waiver of fees. Former § 2.121, which recited a statutory requirement concerning an annual report to Congress, has been deleted as unnecessary. Because the changes to Subpart A consist of rules of agency organization, procedure, or practice, and because public comment on these changes is unnnecessary and would not serve the public interest, good cause is hereby found for promulgating the revision of Subpart A without use of proposed rulemaking procedure of 5 U.S.C. 553 (c). Finally, minor changes to other parts in Chapter I of 40 CFR are also being made for the purpose of conforming these parts to the newly promulgated Subpart B of Part 2.

Accordingly, Chapter I of 40 CFR is amended as set forth below.

Effective date: These regulations shall become effective on October 1, 1976. Dated: August 12, 1976.

Chapter I of 40 CFR is amended as follows:

RUSSELL E. TRAIN, Administrator.

1. Part 2 is amended by revising Subpart A and by adding a new Subpart B, so that the Part reads as follows:

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2.104

2.105

Requests to which this subpart applies.
Existing records.

2.106 Where requests for agency records shall be filed.

2.107

Misdirected written requests; oral requests.

2.108 Form a request.

21-656-78-24

2.109 Requests which do not reasonably describe records sought.
2.110 Responsibilities of Freedom of Information Officers.
2.111 Action by office responsible for responding to request.
2.112 Time allowed for issuance of initial determination.
2.113 Initial denials of requests.

2.114 Appeals from initial denials; manner of making.
2.115 Appeal determinations; by whom made.
2.116 Contents of determination denying appeal.

2.117 Time allowed for issuance of appeal determination.
2.118 Exemption categories.

2.119 Discretionary release of exempt documents.

2.120 2.121-2.200

Fees; payment; waiver.
[Reserved].

Subpart B-Confidentiality of Business Information

2.201 Definitions.

2.202 Applicability of subpart; priority where provisions conflict; records containing more than one kind of information.

2.203 Notice to be included in EPA requests, demands, and forms; method of asserting business confidentiality claim; effect of failure to assert claim at time of submission.

2.204 Initial action by EPA office.

2.205 Final confidentiality determination by EPA legal office.

2.206 Advance confidentiality determinations.

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2.208

2.209

Substantive criteria for use in confidentiality determinations.
Disclosure in special circumstances.

2.210 Nondisclosure for reasons other than business confidentiality or where

disclosure is prohibited by other statute.

2.211 Safeguarding of business information; penalty for wrongful disclosure. 2.212 Establishment of control offices for categories of business information. 2.213 Designation by business or addressee for notices and inquiries.

2.214-2.300 [Reserved].

2.301 Special rules governing certain information obtained under the Clean Air Act.

2.302 Special rules governing certain information obtained under the Federal Water Pollution Control Act.

2.303 Special rules governing certain information obtained under the Noise Control Act of 1972.

2.304 Special rules governing certain information obtained under the Safe Drinking Water Act.

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2.307 Special rules governing certain information obtained under the Federal Insecticide, Fungicide, and Rodenticide Act.

2.308 Special rules governing certain information obtained under the Federal Food, Drug, and Cosmetic Act.

2.309 Special rules governing certain information obtained under the Marine Protection, Research and Sanctuaries Act of 1972.

AUTHORITY: 5 U.S.C. 301, 552, 553; sec. 114, 208, 301, and 307 of the Clean Air Act, as amended, 42 U.S.C. 1857c-9. 1857f-6, 1867g, 1867h-5; secs. 308, 501, and 509 (a) of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1318, 1361, 1369 (a); sec. 13 of the Noise Control Act of 1972, 42 U.S.C. 4912; secs. 1445 and 1450 of the Safe Drinking Water Act, 42 U.S.C. 300j-4, 300j-9; secs. 10, 12, and 25 of the Federal Insecticide, Fungicide and Rodenticide Act, as amended. 7 U.S.C. 136h, 136j, 136v; sec. 408 (f) of the Federal Food, Drug and Cosmetic Act, as amended, 21 U.S.C. 346a (f); and secs. 104(f) and 108 of the Marine Protection, Research, and Sauctuaries Act of 1972, 83 U.S.C. 1414(f), 1418.

§2.100 Definitions.

Subpart A-Requests for Information

For the purposes of this part:

(a) "EPA" means the United States Environmental Protection Agency. (b) "EPA record" or, simply, "record" means and document, writing, photograph, sound or magnetic recording, drawing, or other similar thing by which in

formation has been preserved, from which the information can be retrieved and copied, and which is, was, or is alleged to be possessed by EPA. The term includes informal writings (such as handwritten notes, drafts, and the like), and also includes information preserved in a form which must be translated or deciphered by machine in order to be intelligible to humans. The term includes documents and the like which were created or acquired by EPA, its predecessors, its officers, and employees by use of Government funds or in the course of transacting official business. However, the term does not include materials which are legally owned by an EPA officer or employee in his or her purely personal capacity. Nor does the term include materials published by non-Federal organizations which are readily available to the public, such as books, journals, and periodicals available through reference libraries, even if such materials are in EPA's possession.

(c) "Request" means a request to inspect or obtain a copy of one or more records.

(d) "Requestor" means any person who has submitted a request to EPA. § 2.101 Policy on disclosure of EPA records.

(a) EPA will make the fullest possible disclosure of records to the public, consistent with the rights of individuals to privacy, the rights of persons in business information entitled to confidential treatment, and the need for EPA to promote frank internal policy deliberations and to pursue its official activities without undue disruption.

(b) All EPA records shall be available to the public unless they are exempt from the disclosure requirements of 5 U.S.C. 552.

(c) All nonexempt EPA records shall be available to the public upon request regardless of whether any justification or need for such records has been shown by the requestor.

§2.102 [Reserved]

§ 2.103 Partial disclosure of records.

If a requested record contains both exempt and nonexempt material, the nonexempt material shall be disclosed, after the exempt material has been deleted in accordance with § 2.119.

§ 2.104 Requests to which this subpart applies.

(a) This subpart applies to any written request (other than a request made by another Federal agency) received by any EPA office, whether or not the request cites the Freedom of Information Act, 5 U.S.C. 552. See § 2.107 (a) and § 2.112 (b) regarding the treatment of requests which are directed by the requestor to offices other than those listed in § 2.106.

(b) Any written request to EPA for existing records prepared by EPA for routine public distribution, e.g., pamphlets, copies of speeches, press releases, and educational materials, shall be honored. No individual determination under § 2.111 is necessary in such cases, since preparation of the records for routine public distribution itself constitutes a determination that the records are available to the public.

§2.105 Existing records.

(a) The Freedom of Information Act, 5 U.S.C. 552, does not require the creation of new records in response to a request, nor does it require EPA to place a requestor's name on a distribution list for automatic receipt of certain kinds of records as they come into existence. The Act establishes requirements for disclosure of existing records.

(b) All existing EPA records are subject to routine destruction according to standard record retention schedules.

§2.106 Where requests for agency records shall be filed.

(a) A request for records may be filed with the EPA Freedom of Information Officer, A-101, 401 M Street, SW., Washington, D.C. 20460.

(b) Should the requestor have reason to believe that the records sought may be located in an EPA regional office, he may transmit his request to the appropriate regional Freedom of Information Office indicated below:

(1) Region I (Massachusetts, Connecticut, Maine, New Hampshire, Rhode Island, Vermont):

U.S. Environmental Protection Agency, Freedom of Information Officer, Room 2303, John F. Kennedy Federal Building, Boston, Mass. 02203.

(2) Region II (New Jersey, New York, Puerto Rico, Virgin Islands):

U.S. Environmental Protection Agency, Freedom of Information Officer, Room 1005, 26 Federal Plaza, New York, NY 10007.

(3) Region III (Delaware, Maryland, Pennsylvania, Virginia, West Virginia, District of Columbia):

U.S. Environmental Protection Agency, Freedom of Information Officer, Curtis Building, Sixth and Walnut Streets, Philadelphia, PA 19106.

(4) Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee):

U.S. Environmental Protection Agency, Freedom of Information Officer, Suite 504, 1421 Peachtree Street, NE., Atlanta, GA 30309.

(5) Region V (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin):

U.S. Environmental Protection Agency, Freedom of Information Officer, 230 Dearborn Street, Chicago, IL 60604.

(6) Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas):

U.S. Environmental Protection Agency, Freedom of Information Officer, Suite 1100, 1600 Patterson Street, Dallas, TX 75201.

(7) Region VII (Iowa, Kansas, Missouri, Nebraska):

U.S. Environmental Protection Agency, Freedom of Information Officer, 1735 Baltimore Avenue, Kansas City, MO 64108.

(8) Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming):

U.S. Environmental Protection Agency, Freedom of Information Officer, Suite 900, 1860 Lincoln Street, Denver, CO 80203.

(9) Region IX (Arizona, California, Hawaii, Nevada, American Samoa, Guam, Trust Territory of Pacific Islands, Wake Island) :

U.S. Environmental Protection Agency, Freedom of Information Officer, 100 California Street, San Francisco, CA 94111.

(10) Region X (Alaska, Idaho, Oregon, Washington):

U.S. Environmental Protection Agency, Freedom of Information Officer, 1200 Sixth Avenue, Seattle, WA 98101.

§2.107 Misdirected written requests; oral requests.

(a) EPA cannot assure that a timely or satisfactory response under this subpart will be given to written requests that are addressed to EPA offices, officers, or empolyees other than the Freedom of Information Officers listed in § 2.106. Any EPA officer or employee who receives a written request for inspection or disclosure of EPA records shall promptly forward a copy of the request to the appropriate Freedom of Information Officer, by the fastest practicable means, and shall, if appropriate, commence action under § 2.111.

(b) While EPA officers and employees will attempt in good faith to comply with requests for inspection or disclosure of EPA records made orally, by telephone or otherwise, such oral requests are not required to be processed in accordance with this Subpart.

§2.108 Form of request.

A request shall be made in writing, shall reasonably describe the records sought in a way that will permit their identification and location, and should be addressed to one of the addresses set forth in § 2.106, but otherwise need not be in any particular form.

§ 2.109 Requests which do not reasonably describe records sought.

(a) If the description of the records sought in the request is not sufficient to allow EPA to identify and locate the requested records, the EPA office taking action under §2.111 will notify the requestor (by telephone when practicable) that the request cannot be further processed until additional information is furnished.

(b) EPA will make every reasonable effort to assist in the identification and description of records sought and to assist the requestor in formulating his request. If a request is described in general terms (e.g., all records having to do with a certain area), the EPA office taking action under § 2.111 may communicate with the requestor (by telephone when practicable) with a view toward reducing

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