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8 2.205 Final confidentiality determina

tion by EPA legal office. (a) Role of EPA legal office. (1) The appropriate EPA legal office (see paragraph (i) of this section) is responsible for making the final administrative determination of whether or not business information covered by a business confidentiality claim is entitled to confidential treatment under this subpart.

(2) When a request for release of the information under 5 U.S.C. 552 is pending, the EPA legal office's determination shall serve as the final determination on appeal from an initial denial of the request.

(i) If the initial denial was issued under $ 2.204(b)(1), a final determination by the EPA legal office is necessary only if the requestor has actually filed an appeal.

(ii) If the initial denial was issued under $ 2.204(d)(1), however, the EPA legal office shall issue a final determination in every case, unless the request has been withdrawn. (Initial denials under $ 2.204(d)(1) are of a procedural nature, to allow further inquiry into the merits of the matter, and a requestor is entitled to a decision on the merits.) If an appeal from such a denial has not been received by the EPA Freedom of Information Officer on the tenth working day after issuance of the denial, the matter shall be handled as if an appeal had been received on that day, for purposes of establishing a schedule for issuance of an appeal decision under $ 2.117 of this part.

(b) Comment period; extensions; untimeliness as waiver of claim. (1) Each business which has been furnished the notice and opportunity to comment prescribed by $ 2.204(d)(1) and $ 2.204(e) shall furnish its comments to the office specified in the notice in time to be postmarked or hand delivered to that office not later than the date specified in the notice (or the date established in lieu thereof under this section).

(2) The period for submission of comments may be extended if, before the comments are due, a request for an extension of the comment period is made by the business and approved by the EPA legal office. Except in extraordinary circumstances, the EPA

legal office will not approve such an extension without the consent of any person whose request for release of the information under 5 U.S.C. 552 is pending.

(3) The period for submission of comments by a business may be shortened in the manner described in paragraph (g) of this section.

(4) If a business's comments have not been received by the specified EPA office by the date they are due (including any approved extension), that office shall promptly inquire whether the business has complied with paragraph (b)(1) of this section. If the business has complied with paragraph (b)(1) put comments have been lost in transmission, duplicate comments shall be requested.

(c) Confidential treatment of comments from business. If information submitted to EPA by a business as part of its comments under this section pertains to the business's claim, is not otherwise possessed by EPA, and is marked when received in accordance with $ 2.203(b), it will be regarded by EPA as entitled to confidential treatment and will not be disclosed by EPA without the business's consent, unless its disclosure is duly ordered by a Federal court, notwithstanding other provisions of this subpart to the contrary.

(d) Types of final determinations; matters to be considered. (1) If the EPA legal office finds that a business has failed to furnish comments under paragraph (b) of this section by the specified due date, it shall determine that the business has waived its claim. If, after application of the preceding sentence, no claim applies to the information, the office shall determine that the information is not entitled to confidential treatment under this subpart and, subject to $ 2.210, is available to the public.

(2) In all other cases, the EPA legal office shall consider each business's claim and comments, the various provisions of this subpart, any previouslyissued determinations under this subpart which are pertinent, the materials furnished it under $ 2.204(f), and such other materials as it finds appropriate. With respect to each claim, the office shall determine whether or not the information is entitled to confi

dential treatment for the benefit of titlement to confidential treatment is the business that asserted the claim, shorter than that requested by the and the period of any such entitle- business. ment (e.g., until a certain date, until (2) The notice prescribed by parathe occurrence of specified event, or graph (f)(1) of this section shall be permanently), and shall take further written, and shall be furnished by ceraction under paragraph (e) or (f) of tified mail (return receipt requested), this section, as appropriate.

by personal delivery, or by other (3) Whenever the claims of two or means which allows verification of the more businesses apply to the same in- fact of receipt and the date of receipt. formation, the EPA legal office shall The notice shall state the basis for the take action appropriate under the par- determination, that it constitutes final ticular circumstances to protect the in- agency action concerning the business terests of all persons concerned (in- confidentiality claim, and that such cluding any person whose request for final agency action may be subject to the information is pending under 5 judicial review under Chapter 7 of U.S.C. 552).

Title 5, United States Code. With re(e) Determination that information spect to EPA's implementation of the is entitled to confidential treatment. If determination, the notice shall state the EPA legal office determines that that (subject to $ 2.210) EPA will make the information is entitled to confi- the information available to the public dential treatment for the full period on the tenth working day after the requested by the business which made date of the business's receipt of the the claim, EPA shall maintain the in- written notice (or on such later date as formacion in confidence for such is established in lieu thereof by the period, subject to paragraph (h) of EPA legal Oifice under paragraph this section, $ 2.209, and the other pro- (f)(3) of this section), unless the EPA visions of this subpart which authorize legal office has first been notified of disclosure in specified circumstances, the business's commencement of an and the office sliall so inform the busi- action in a Federal court to obtain juness. If any person's request for the dicial review of the determination, and release of the information is then to obtain preliminary injunctive relief pending under 5 U.S.C. 552, the EPA against disclosure. The notice shall legal office shall issue a final determi- further state that if such an action is nation denying that request.

timely commenced, EPA may nonethe(f) Determination that information less make the information available to is not entitled to confidential treat- the public (in the absence of an order ment; notice; waiting period; release of by the court to the contrary), once the information. (1) Notice of denial (or court has denied a motion for a prepartial denial) of a business confiden- liminary injunction in the action or tiality claim, in the form prescribed by has otherwise upheld the EPA deterparagraph (f)(2) of this section, shall mination, or whenever it appears to be furnished

the EPA legal office, after reasonable (i) By the EPA office taking action notice to the business, that the busiunder $ 2.204, to each business on ness is not taking appropriate measbehalf of which a claim has been ures to obtain a speedy resolution of made, whenever $ 2.204(d)(2) requires the action. If the information has such notice; and

been found to be temporarily entitled (ii) By the EPA legal office taking to confidential treatment, the notice action under this section, to each busi- shall further state that the informaness which has asserted a claim appli- tion will not be disclosed prior to the cable to the information and which end of the period of such temporary has furnished timely comments under entitlement to confidential treatment. paragraph (b) of this section, when- (3) The period established in a ever the EPA legal office determines notice under paragraph (f)(2) of this that the information is not entitled to section for commencement of an confidential treatment under this sub- action to obtain judicial review may be part for the benefit of the business, or extended if, before the expiration of determines that the period of any en- such period, a request for an extension

is made by the business and approved by the EPA legal office. Except in extraordinary circumstances, the EPA legal office will not approve such an extension without the consent of any person whose request for release of the information under 5 U.S.C. 552 is pending.

(4) After the expiration of any period of temporary entitlement to confidential treatment, a determination under this paragraph (f) shall be implemented by the EPA legal office by making the information available to the public (in the absence of a court order prohibiting disclosure) whenever

(1) The period provided for commencement by a business of an action to obtain judicial review of the determination has expired without notice to the EPA legal office of commencement of such an action;

(ii) The court, in a timely-commenced action, has denied the business' motion for a preliminary injunction, or has otherwise upheld the EPA determination; or

(iii) The EPA legal office, after reasonable notice has been provided to the business, finds that the business is not taking appropriate measures to obtain a speedy resolution of the timely-commenced action.

(5) Any person whose request for release of the iniormation under 5 U.S.C. 552 is pending at the time notice is given under paragraph (f)(2) of this section shall be furnished a determination under 5 U.S.C. 552 stating the circumstances under which the information will be released.

(g) Emergency situations. If the General Counsel finds that disclosure of information covered by a claim would be helpful in alleviating a situation posing an imminent and substantial danger to public health or safety, he may prescribe and make known to interested persons such shorter comment period aragraph (b) of this section), post-determination waiting period (paragraph (f) of this section), or both, as he finds necessary under the circumstances.

(h) Modification of prior determinations. A determination that information is entitled to confidential treatment for the benefit of a business,

made under this subpart by an EPA legal office, shall continue in effect in accordance with its terms until an EPA legal office taking action under this section, or under $ 2.206 or $ 2.207, issues a final determination stating that the earlier determination no longer describes correctly the information's entitlement to confidential treatment because of change in the applicable law, newly-discovered or changed facts, or because the earlier determination was clearly erroneous. If an EPA legal office tentatively concludes that such an earlier determination is of questionable validity, it shall so inform the business, and shall afford the business an opportunity to furnish comments on pertinent issues in the manner described by $ 2.204(e) and paragraph (b) of this section. If, after consideration of any timely comments submitted by the business, the EPA legal office makes a revised final determination that the information is not entitled to confidential treatment, or that the period of entitlement to such treatment will end sooner than it would have ended under the earlier determination, the office will follow the procedure described in paragraph (f) of this section. Determinations under this section may be made only by, or with the concurrence of, the General Counsel.

(i) Delegation and redelegation of authority. Unless the General Counsel otherwise directs, or this subpart otherwise specifically provides, determinations and actions required by this subpart to be made or taken by an EPA legal office shall be made or taken by the appropriate Regional counsel whenever the EPA office taking action under $ 2.204 or

2.206(b) is under the supervision of a Regional Administrator, and by the General Counsel in all other cases. The General Counsel may redelegate any or all of his authority under this subpart to any attorney employed by EPA on a full-time basis under the General Counsel's supervision. A Regional Counsel may redelegate any or all of his authority under this subpart to any attorney employed by EPA on a full-time basis under the Regional counsel's supervision.

(41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51661, Dec. 18, 1985)

office which requested the determination, 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 2.206 Advance confidentiality determina

tions. (a) An advance determination under this section may be issued by an EPA legal office if

(1) EPA has requested or demanded that a business furnish business information to EPA;

(2) The business asserts that the information, if submitted, would constitute voluntarily submitted information under g 2.201(i);

(3) The business will voluntarily submit the information for use by EPA only if EPA first determines that the information is entitled to confidential treatment under this subpart; and

(4) The EPA office which desires submission of the information has requested that the EPA legal office issue a determination under this section.

(b) The EPA office requesting an advance determination under this section shall

(1) Arrange to have the business furnish directly to the EPA legal office a copy of the information (or, where feasible, a description of the nature of the information sufficient to allow a determination to be made), as well as the business's comments concerning the matters addressed in § 2.204(e)(4), excluding, however, matters addressed in $ 2.204 (e)(4)(iii) and (e)(4)(iv); and

(2) Furnish to the EPA legal office the materials referred to in $ 2.204(f) (3), (7), (8), and (9).

(c) In making a determination under this section, the EPA legal office shall first determine whether or not the information would constitute voluntarily submitted information under § 2.201(i). If the information would constitute voluntarily submitted information, 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

or

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 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 clearly 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

En particular set of substantive criteria (other than discovery based on a showEr under this subpart;

ing of special need in a judicial or 2 (3) Fails to satisfy one or more of quasi-judicial proceeding); to the applicable substantive criteria, and (d) No statute specifically requires ping is therefore ineligible for confidential disclosure of the information; and treatment;

(e) Either(4) Satisfies one or more of the ap

(1) The business has satisfactorily plicable substantive criteria; or

shown that disclosure of the informa(5) Satisfies one or more of the ap

tion is likely to cause substantial harm plicable substantive criteria during a

to the business's competitive position; certain period, but will be ineligible

or for confidential treatment thereafter.

(2) The information is voluntarily (d) The purpose of a class determi

submitted information (see $ 2.201(i)), nation is simply to make known the Agency's position regarding

and its disclosure would be likely to the

impair the Government's ability to manner in which information within the class will be treated under one or

obtain necessary information in the more of the provisions of this subpart.

future. TT? Accordingly, the notice of opportunity

8 2.209 Disclosure in special circumto submit comments referred to in

stances. # $ 2.204(d)(1)(ii) and g 2.205(b), and the 2 list of materials required to be fur- (a) General. Information which,

nished to the EPA legal office under under this subpart, is not available to

$ 2.204(d)(1)(iii), may be modified to the public may nonetheless be diso reflect the fact that the class determi- closed to the persons, and in the cirEe nation has made unnecessary the sub- cumstances, described by paragraphs dos mission of materials pertinent to one (b) through (g) of this section. (This For more issues. Moreover, in appropri- section shall not be construed to reIch ate cases, action based on the class de- strict the disclosure of information

termination may be taken under which has been determined to be $ 2.204(b)(1), $ 2.204(d), $ 2.205(d), or available to the public. However, busi§ 2.206. However, the existence of a ness information for which a claim of class determination shall not, of itself, confider:tiality has been asserted shall affect any right a business may have be treated as being entitled to confito receive

any

notice under dential treatment until there has been $ 2.204(d)(2) or $ 2.205(f).

a determination in accordance with

the procedures of this subpart that 8 2.208 Substantive criteria for use in cor. the information is not entitled to confidentiality determinations.

fidential treatment.) Determinations issued under $$ 2.204 (b) Disclosure to Congress of the through 2.207 shall hold that business Comptroller General. (1) Upon receipt information is entitled to confidential of a written request by the Speaker of treatment for the benefit of a particu- the House, President of the Senate, lar business if

chairman of a committee or subcom(a) The business has asserted a busi- mittee, or the Comptroller General, as ness confidentiality claim which has appropriate, EPA will disclose business not expired by its terms, nor been informacion to either House of Conwaived nor withdrawn;

gress, to a committee or subcommittee (b) The business has satisfactorily of Congress, or to the Comptroller shown that it has taken reasonable General, unless a statute forbids such measures to pr the confidential- disclosure.

ity of the information, and that it in- (2) If the request is for business inaté

tends to continue to take such meas- formation claimed as confidential or he ures;

determined to be confidential, the (c) The information is not, and has EPA office processing the request not been, reasonably obtainable with- shall provide notice to each affected

out the business's consent by other business of the type of information 1 persons (other than governmental disclosed and to whom it is disclosed. 8

bodies) by use of legitimate means Notice shall be given at least ten days

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