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quest has been withdrawn. (Initial de- $2.203(b), it will be regarded by EPA as nials under $2.204(d)(1) are of a proce- entitled to confidential treatment and dural nature, to allow further inquiry will not be disclosed by EPA without into the merits of the matter, and a the business's consent, unless its disrequestor is entitled to a decision on closure is duly ordered by a Federal the merits.) If an appeal from such a court, notwithstanding other providenial has not been received by the sions of this subpart to the contrary. EPA Freedom of Information Officer (d) Types of final determinations; maton the tenth working day after issu- ters to be considered. (1) If the EPA legal ance of the denial, the matter shall be office finds that a business has failed to handled as if an appeal had been re- furnish comments under paragraph (b) ceived on that day, for purposes of es- of this section by the specified due tablishing a schedule for issuance of an date, it shall determine that the busiappeal decision under $2.117 of this ness has waived its claim. If, after appart.

plication of the preceding sentence, no (b) Comment period; extensions; untime- claim applies to the information, the liness as waiver of claim. (1) Each busi- office shall determine that the inforness which has been furnished the no- mation is not entitled to confidential tice and opportunity to comment pre- treatment under this subpart and, subscribed by $2.204(d)(1) and $2.204(e) ject to $2.210, is available to the public. shall furnish its comments to the office (2) In all other cases, the EPA legal specified in the notice in time to be office shall consider each business's postmarked or hand delivered to that claim and comments, the various prooffice not later than the date specified visions of this subpart, any previouslyin the notice (or the date established in issued determinations under this sublieu thereof under this section).

part which are pertinent, the materials (2) The period for submission of com- furnished it under $2.204(1), and such ments may be extended if, before the other materials as it finds appropriate. comments are due, a request for an ex- With respect to each claim, the office tension of the comment period is made shall determine whether or not the inby the business and approved by the formation is entitled to confidential EPA legal office. Except in extraor- treatment for the benefit of the busidinary circumstances, the EPA legal ness that asserted the claim, and the office will not approve such an exten- period of any such entitlement (e.g., sion without the consent of any person until a certain date, until the occurwhose request for release of the infor- rence of a specified event, or permamation under 5 U.S.C. 552 is pending. nently), and shall take further action

(3) The period for submission of com- under paragraph (e) or (f) of this secments by a business may be shortened tion, as appropriate. in the manner described in paragraph (3) Whenever the claims of two or (g) of this section.

more businesses apply to the same in(4) If a business's comments have not formation, the EPA legal office shall been received by the specified EPA of- take action appropriate under the parfice by the date they are due (including ticular circumstances to protect the any approved extension), that office interests of all persons concerned (inshall promptly inquire whether the cluding any person whose request for business has complied with paragraph the information is pending under 5 (b)(1) of this section. If the business has U.S.C. 552). complied with paragraph (b)(1) but the (e) Determination that information is comments have been lost in trans- entitled to confidential treatment. If the mission, duplicate comments shall be EPA legal office determines that the requested.

information is entitled to confidential (c) Confidential treatment of comments treatment for the full period requested from business. If information submitted by the business which made the claim, to EPA by a business as part of its EPA shall maintain the information in comments under this section pertains confidence for such period, subject to to the business's claim, is not other paragraph (h) of this section, $2.209, wise possessed by EPA, and is marked and the other provisions of this subpart when received in accordance with which authorize disclosure in specified

circumstances, and the office shall so inform the business. If any person's request for the release of the information is then pending under 5 U.S.C. 552, the EPA legal office shall issue a final determination denying that request.

(f) Determination that nfo ation is not entitled to confidential treatment; notice; waiting period; release of information. (1) Notice of denial (or partial denial) of a business confidentiality claim, in the form prescribed by paragraph (f)(2) of this section, shall be furnished

(i) By the EPA office taking action under $2.204, to each business on behalf of which a claim has been made, whenever $2.204(d)(2) requires such notice; and

(ii) By the EPA legal office taking action under this section, to each business which has asserted a claim applicable to the information and which has furnished timely comments under paragraph (b) of this section, whenever the EPA legal office determines that the information is not entitled to confidential treatment under this subpart for the benefit of the business, or determines that the period of any entitlement to confidential treatment is shorter than that requested by the business.

(2) The notice prescribed by paragraph (f)(1) of this section shall be written, and shall be furnished by certified mail (return receipt requested), by personal delivery, or by other means which allows verification of the fact of receipt and the date of receipt. The notice shall state the basis for the determination, that it constitutes final agency action concerning the business confidentiality claim, and that such final agency action may be subject to judicial review under Chapter 7 of Title 5, United States Code. With respect to EPA's implementation of the determination, the notice shall state that (subject to $2.210) EPA will make the information available to the public on the tenth working day after the date of the business's receipt of the written notice (or on such later date as is established in lieu thereof by the EPA legal office under paragraph (f)(3) of this section), unless the EPA legal office has first been notified of the business's commencement of an action

in a Federal court to obtain judicial review of the determination, and to obtain preliminary injunctive relief against disclosure. The notice shall further state that if such an action is timely commenced, EPA may nonetheless make the information available to the public in the absence of an order by the court to the contrary), once the court has denied a motion for a preliminary injunction in the action or has otherwise upheld the EPA determination, or whenever it appears to the EPA legal office, after reasonable notice to the business, that the business is not taking appropriate measures to obtain a speedy resolution of the action. If the information has been found to be temporarily entitled to confidential treatment, the notice shall further state that the information will not be disclosed prior to the end of the period of such temporary entitlement to confidential treatment.

(3) The period established in a notice under paragraph (f)(2) of this section for commencement of an action to obtain judicial review may be extended if, before the expiration of 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

(i) 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 this section. Determinations under this a speedy resolution of the timely-com- section may be made only by, or with menced action.

the concurrence of, the General Coun(5) Any person whose request for re- sel. lease of the information under 5 U.S.C. (i) Delegation and redelegation of au552 is pending at the time notice is thority. Unless the General Counsel given under paragraph (f)(2) of this sec- otherwise directs, or this subpart othtion shall be furnished a determination erwise specifically provides, determinaunder 5 U.S.C. 552 stating the cir- tions and actions required by this subcumstances under which the informa- part to be made or taken by an EPA tion will be released.

legal office shall be made or taken by (8) Emergency situations. If the Gen- the appropriate Regional counsel wheneral Counsel finds that disclosure of in- ever the EPA office taking action formation covered by a claim would be under $2.204 or $2.206(b) is under the suhelpful in alleviating a situation pos- pervision of a Regional Administrator, ing an imminent and substantial dan- and by the General Counsel in all other ger to public health or safety, he may cases. The General Counsel may prescribe and make known to inter- redelegate any or all of his authority ested persons such shorter comment under this subpart to any attorney emperiod (paragraph (b) of this section), ployed by EPA on a full-time basis post-determination waiting period under the General Counsel's super(paragraph (f) of this section), or both, vision. A Regional Counsel may as he finds necessary under the cir- redelegate any or all of his authority cumstances.

under this subpart to any attorney em(h) Modification of prior determina- ployed by EPA on a full-time basis tions. A determination that informa- under the Regional counsel's supertion is entitled to confidential treat- vision. ment for the benefit of a business,

(41 FR 36902, Sept. 1, 1976, as amended at 50 made under this subpart by an EPA FR 51661, Dec. 18, 1985) legal office, shall continue in effect in accordance with its terms until an $ 2.206 Advance confidentiality deterEPA legal office taking action under

minations. this section, or under $2.206 or $2.207, (a) An advance determination under issues a final determination stating this section may be issued by an EPA that the earlier determination no legal office iflonger describes correctly the informa- (1) EPA has requested or demanded tion's entitlement to confidential that a business furnish business infortreatment because of change in the ap- mation to EPA; plicable

newly-discovered or (2) The business asserts that the inchanged facts, or because the earlier formation, if submitted, would condetermination was clearly erroneous. If stitute voluntarily submitted informaan EPA legal office tentatively con- tion under $2.201(i); cludes that such an earlier determina- (3) The business will voluntarily subtion is of questionable validity, it shall mit the information for use by EPA so inform the business, and shall afford only if EPA first determines that the the business an opportunity to furnish information is entitled to confidential comments on pertinent issues in the treatment under this subpart; and manner described by $2.204(e) and para- (4) The EPA office which desires subgraph (b) of this section. If, after con- mission of the information has resideration of any timely comments quested that the EPA legal office issue submitted by the business, the EPA a determination under this section. legal office makes a revised final deter- (b) The EPA office requesting an admination that the information is not vance determination under this section entitled to confidential treatment, or shallthat the period of entitlement to such (1) Arrange to have the business furtreatment will end sooner than it nish directly to the EPA legal office a would have ended under the earlier de- copy of the information (or, where featermination, the office will follow the sible, a description of the nature of the procedure described in paragraph (f) of information sufficient to allow a deter

law,

mination 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 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.

(1) EPA possesses, or is obtaining, related items of business information;

(2) One or 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 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 particular set of substantive criteria under this subpart;

(3) Fails to satisfy one or more of the applicable substantive criteria, and is therefore ineligible for confidential treatment;

(4) Satisfies one or more of the applicable substantive criteria; or

(5) Satisfies one or more of the applicable substantive criteria during a certain period, but will be ineligible for confidential treatment thereafter.

(d) The purpose of a class determination is simply to make known the Agency's position regarding the manner in which information within the class will be treated under one or more of the provisions of this subpart. ACcordingly, the notice of opportunity to submit comments referred to $2.204(d)(1)(ii) and $2.205(b), and the list of materials required to be furnished to the EPA legal office under $2.204(2)(1)(iii), may be modified to reflect the fact that the class determination has made unnecessary the submission of materials pertinent to one or more issues. Moreover, in appropriate cases, action based on the class determination may be taken under $2.204(b)(1), $2.204(d), $2.205(d), $2.206. However, the existence of a class determination shall not, of itself, affect any right a business may have to receive any notice under $2.204(d)(2) or $2.205(f).

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8 2.207 Class determinations.

(a) The General Counsel may make and issue a class determination under this section if he finds that

$2.208 Substantive criteria for use in

confidentiality determinations. Determinations issued under $82.204 through 2.207 shall hold that business information is entitled to confidential treatment for the benefit of a particular business if

(a) The business has asserted a business confidentiality claim which has not expired by its terms, nor been waived nor withdrawn;

(b) The business has satisfactorily shown that it has taken reasonable measures to protect the confidentiality of the information, and that it intends to continue to take such measures;

(c) The information is not, and has not been, reasonably obtainable without the business's consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding);

(d) No statute specifically requires disclosure of the information; and

(e) Either

(1) The business has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business's competitive position; or

(2) The information is voluntarily submitted information (see $2.201(i)), and its disclosure would be likely to impair the Government's ability to obtain necessary information in the future.

(b) Disclosure to Congress or the Comptroller General. (1) Upon receipt of a written request by the Speaker of the House, President of the Senate, chairman of a committee or subcommittee, or the Comptroller General, as appropriate, EPA will disclose business information to either House of Congress, to a committee or subcommittee of Congress, or to the Comptroller General, unless a statute forbids such disclosure.

(2) If the request is for business information claimed as confidential or determined to be confidential, the EPA office processing the request shall provide notice to each affected business of the type of information disclosed and to whom it is disclosed. Notice shall be given at least ten days prior to disclosure, except where it is not possible to provide notice ten days in advance of any date established by the requesting body for responding to the request. Where ten days advance notice cannot be given, as much advance notice as possible shall be provided. Where notice cannot be given before the date established by the requesting body for responding to the request, notice shall be given as promptly after disclosure as possible. Such notice may be given by notice published in the FEDERAL REGISTER or by letter sent by certified mail, return receipt requested, or telegram. However, if the requesting body asks in writing that no notice under this subsection be given, EPA will give no notice.

(3) At the time EPA discloses the business information, EPA will inform the requesting body of any unresolved business confidentiality claim known to cover the information and of any determination under this subpart that the information is entitled to confidential treatment.

(c) Disclosure to other Federal agencies. EPA may disclose business information to another Federal agency if

(1) EPA receives a written request for disclosures of the information from a duly authorized officer or employee of the other agency or on the initiative of EPA when such disclosure is necessary to enable the other agency to carry out a function on behalf of EPA;

$2.209 Disclosure in special circum

stances. (a) General. Information which, under this subpart, is not available to the public may nonetheless be disclosed to the persons, and in the circumstances, described by paragraphs (b) through (g) of this section. (This section shall not be construed to restrict the disclosure of information which has been determined to be available to the public. However, business information for which a claim of confidentiality has been asserted shall be treated as being entitled to confidential treatment until there has been a determination in accordance with the procedures of this subpart that the information is not entitled to confidential treatment.)

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