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made for any of the purposes stated in emission data and standards or limitasection 206(c), or if its submission could tions) provided in response to a subhave been required under section 206(C) poena issued under section 307(a) of the regardless of whether section 206(c) was Act, which is determined under this cited as authority for any request for subpart not to be entitled to confidenthe information, whether an action was tial treatment, shall be available to brought under section 204 of the Act, 42 the public, unless EPA determines that U.S.C. 7523, or whether the information the information is exempt from mandawas provided directly to EPA or tory disclosure under 5 U.S.C. 552(b) for through some third person.

reasons other than reasons of business (5) Information will be considered to confidentiality and cannot or should have been provided or obtained under not be made available to the public. section 307(a) of the Act if it was pro- (g) Disclosure of information relevant to vided in response to a subpoena issued a proceeding. (1) Under sections 114, 208 under section 307(a), or if its produc- and 307 of the Act, any information to tion could have been required by sub- which this section applies may be repoena under section 307(a), regardless leased by EPA because of the relevance of whether section 307(a) was cited as of the information to a pr eeding, the authority for any request for the notwithstanding the fact that the ininformation, whether a subpoena was formation otherwise might be entitled issued by EPA, whether a court issued to confidential treatment under this an order under section 307(a), or wheth- subpart. Release of information beer the information was provided di- cause of its relevance to a proceeding rectly to EPA or through some third shall be made only in accordance with person.

this paragraph (g). (c) Basic rules which apply without (2) In connection with any proceeding change. Sections 2.201 through 2.207, other than a proceeding involving a de$2.209 and $82.211 through 2.215 apply cision by a presiding officer after an without change to information to evidentiary or adjudicatory hearing, which this section applies.

information to which this section ap(d) (Reserved]

plies which may be entitled to con(e) Substantive criteria for use in con- fidential treatment may be made availfidentiality determinations. Section 2.208 able to the public under this paragraph applies to information to which this (g)(2). No information shall be made section applies, except that informa- available to the public under this paration which is emission data, a standard graph (g)(2) until any affected business or limitation, or is collected pursuant has been informed that EPA is considto section 211(b)(2)(A) of the Act is not ering making the information availeligible for confidential treatment. No able to the public under this paragraph information to which this section ap- (g)(2) in connection with an identified plies is voluntarily submitted informa- proceeding, and has afforded the busition.

ness a reasonable period for comment (1) Availability of information not enti- (such notice and opportunity to comtled to confidential treatment. Section ment may be afforded in connection 2.210 does not apply to information to with the notice prescribed by which this section applies. Emission $2.204(d)(1) and $2.204(e)). Information data, standards or limitations, and any may be made available to the public other information provided under sec- under this paragraph (g)(2) only if, tion 114 or 208 of the Act which is de- after consideration of any timely comtermined under this subpart not to be ments submitted by the business, the entitled to confidential treatment, General Counsel determines that the shall be available to the public not- information is relevant to the subject withstanding any other provision of of the proceeding and the EPA office this part. Emission data and standards conducting the proceeding determines or limitations provided in response to a that the public interest would be subpoena issued under section 307(a) of served by making the information the Act shall be available to the public available to the public. Any affected notwithstanding any other provision of business shall be given at least 5 days' this part. Information (other than notice by the General Counsel prior to making the information available to tion shall direct his request to the prethe public.

siding officer. Upon receipt of such a (3) In connection with any proceeding request, the presiding officer shall noinvolving a decision by a presiding offi- tify each affected business that disclocer after an evidentiary or adjudica- sure under this paragraph (g)(4) has tory hearing, information to which this been requested, and shall afford each section applies which may be entitled such business a period for comment to confidential treatment may be made found by the presiding officer to be reaavailable to the public, or to one or sonable under the circumstances. Informore parties of record to the proceed- mation may be disclosed to a party of ing, upon EPA's initiative, under this record under this paragraph (g)(4) only paragraph (g)(3). An EPA office propos- if, after consideration of any timely ing disclosure of information under comments submitted by the business, this paragraph (g)(3), shall so notify the presiding officer determines in the presiding officer in writing. Upon writing that (i) the party of record has receipt of such a notification, the pre- satisfactorily shown that with respect siding officer shall notify each affected to a significant matter which is in conbusiness that disclosure under this troversy in the proceeding, the party's paragraph (g)(3) has been proposed, and ability to participate effectively in the shall afford each such business a period proceeding will be significantly imfor comment found by the presiding of- paired unless the information is disficer to be reasonable under the cir- closed to him, and (ii) any harm to an cumstances. Information may be dis- affected business that would result closed under this paragraph (g)(3) only from the disclosure is likely to be outif, after consideration of any timely weighed by the benefit to the proceedcomments submitted by the business, ing and to the public interest that the EPA office determines in writing would result from the disclosure. The that, for reasons directly associated presiding officer may condition disclowith the conduct of the proceeding, the sure of the information to a party of contemplated disclosure would serve record on the making of such protecthe public interest, and the presiding tive arrangements and commitments officer determines in writing that the as he finds to be warranted. Disclosure information is relevant to a matter in to one or more parties of record, under controversy in the proceeding. The pre- protective arrangements or commitsiding officer may condition disclosure ments, shall not, of itself, affect the of the information to a party of record eligibility of information to confidenon the making of such protective ar- tial treatment under the other provirangements and commitments as he sions of this subpart. Any affected finds to be warranted. Disclosure to business shall be given at least 5 days one or more parties of record, under notice by the presiding officer prior to protective arrangements or commit- making the information available to ments, shall not, of itself, affect the one or more of the parties of record to eligibility of information for confiden- the proceeding tial treatment under the other provi- (h) Disclosure to authorized representasions of this subpart. Any affected tives. (1) Under sections 114, 208 and business shall be given at least 5 days 307(a) of the Act, EPA possesses aunotice by the presiding officer prior to thority to disclose to any authorized making the information available to representative of the United States any the public or to one or more of the par- information to which this section apties of record to the proceeding.

plies, notwithstanding the fact that (4) In connection with any proceeding the information might otherwise be eninvolving a decision by a presiding offi- titled to confidential treatment under cer after an evidentiary or adjudica- this subpart. Such authority may be tory hearing, information to which this exercised only in accordance with parasection applies may be made available graph (h) (2) or (3) of this section. to one or more parties of record to the (2)(i) A person under contract or subproceeding, upon request of a party, contract to the United States governunder this paragraph (g)(4). A party of ment to perform work in support of record seeking disclosure of informa- EPA in connection with the Act or reg

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ulations which implement the Act may be considered an authorized representative of the United States for purposes of this paragraph (h). For purposes of this section, the term "contract” includes grants and cooperative agreements under the Environmental Programs Assistance Act of 1984 (Pub. L. 98-313), and the term “contractor" includes grantees and cooperators under the Environmental Programs Assistance Act of 1984. Subject to the limitations in this paragraph (h)(2), information to which this section applies may be disclosed:

(A) To a contractor or subcontractor with EPA, if the EPA program office managing the contract first determines in writing that such disclosure is necessary in order that the contractor or subcontractor may carry out the work required by the contract or subcontract; or

(B) To a contractor or subcontractor with an agency other than EPA, if the EPA program office which provides the information to that agency, contractor, or subcontractor first determines in writing, in consultation with the General Counsel, that such disclosure is necessary in order that the contractor or subcontractor may carry out the work required by the contract or subcontract.

(ii) No information shall be disclosed under this paragraph (h)(2), unless this contract or subcontract in question provides:

(A) That the contractor or subcontractor and the contractor's or subcontractor's employees shall use the information only for the purpose of carrying out the work required by the contract or subcontract, shall refrain from disclosing the information to anyone other than EPA without the prior written approval of each affected business or of an EPA legal office and shall return to EPA all copies of the information (and any abstracts or extracts therefrom) upon request by the EPA program office, whenever the information is no longer required by the contractor or subcontractor for the performance of the work required under the contract or subcontract, or upon completion of the contract or subcontract (where the information was provided to the contractor or sub

contractor by an agency other than EPA, the contractor may disclose or return the information to that agency);

(B) That the contractor or subcontractor shall obtain written agreement to honor such terms of the contract or subcontract from each of the contractor's or subcontractor's employees who will have access to the information, before such employee is allowed such access; and

(C) That the contractor or subcontractor acknowledges and agrees that the contract or subcontract provisions concerning the use and disclosure of business information are included for the benefit of, and shall be enforceable by, both the United States government and any affected business having an interest in information concerning it supplied to the contractor or subcontractor by the United States government under the contract or subcontract.

(iii) No information shall be disclosed under this paragraph (h)(2) until each affected business has been furnished notice of the contemplated disclosure by the EPA program office and has been afforded a period found reasonable by that office (not less than 5 working days) to submit its comments. Such notice shall include a description of the information to be disclosed, the identity of the contractor or subcontractor, the contract or subcontract number, if any, and the purposes to be served by the disclosure.

(iv) The EPA program office shall prepare a record of each disclosure under this paragraph (h)(2), showing the contractor or subcontractor, the contract or subcontract number, the information disclosed, the date(s) of disclosure, and each affected business. The EPA program office shall maintain the record of disclosure and the determination of necessity prepared under paragraph (h)(2)(i) of this section for a period of not less than 36 months after the date of the disclosure.

(3) A state or local governmental agency which has duties or responsibilities under the Act, or under regulations which implement the Act, may be considered an authorized representative of the United States for purposes of this paragraph (h). Information to which this section applies may be fur

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making the information available to tion shall direct his request to the prethe public.

siding officer. Upon receipt of such a (3) In connection with any proceeding request, the presiding officer shall noinvolving a decision by a presiding offi- tify each affected business that disclocer after an evidentiary or adjudica- sure under this paragraph (g)(4) has tory hearing, information to which this been requested, and shall afford each section applies which may be entitled such business a period for comment to confidential treatment may be made found by the presiding officer to be reaavailable to the public, or to one or sonable under the circumstances. Informore parties of record to the proceed- mation may be disclosed to a party of ing, upon EPA's initiative, under this record under this paragraph (g)(4) only paragraph (g)(3). An EPA office propos- if, after consideration of any timely ing disclosure of information under comments submitted by the business, this paragraph (g)(3), shall so notify the presiding officer determines in the presiding officer in writing. Upon writing that (i) the party of record has receipt of such a notification, the pre- satisfactorily shown that with respect siding officer shall notify each affected to a significant matter which is in conbusiness that disclosure under this troversy in the proceeding, the party's paragraph (g)(3) has been proposed, and ability to participate effectively in the shall afford each such business a period proceeding will be significantly imfor comment found by the presiding of- paired unless the information is disficer to be reasonable under the cir- closed to him, and (ii) any harm to an cumstances. Information may be dis- affected business that would result closed under this paragraph (g)(3) only from the disclosure is likely to be outif, after consideration of any timely weighed by the benefit to the proceedcomments submitted by the business, ing and to the public interest that the EPA office determines in writing would result from the disclosure. The that, for reasons directly associated presiding officer may condition disclowith the conduct of the proceeding, the sure of the information to a party of contemplated disclosure would serve record on the making of such protecthe public interest, and the presiding tive arrangements and commitments officer determines in writing that the as he finds to be warranted. Disclosure information is relevant to a matter in to one or more parties of record, under controversy in the proceeding. The pre- protective arrangements or commitsiding officer may condition disclosure ments, shall not, of itself, affect the of the information to a party of record eligibility of information to confidenon the making of such protective ar- tial treatment under the other provirangements and commitments as he sions of this subpart. Any affected finds to be warranted. Disclosure to business shall be given at least 5 days one or more parties of record, under notice by the presiding officer prior to protective arrangements or commit- making the information available to ments, shall not, of itself, affect the one or more of the parties of record to eligibility of information for confiden- the proceeding. tial treatment under the other provi- (h) Disclosure to authorized representasions of this subpart. Any affected tives. (1) Under sections 114, 208 and business shall be given at least 5 days 307(a) of the Act, EPA possesses aunotice by the presiding officer prior to thority to disclose to any authorized making the information available to representative of the United States any the public or to one or more of the par- information to which this section apties of record to the proceeding.

plies, notwithstanding the fact that (4) In connection with any proceeding the information might otherwise be eninvolving a decision by a presiding offi- titled to confidential treatment under cer after an evidentiary or adjudica- this subpart. Such authority may be tory hearing, information to which this exercised only in accordance with parasection applies may be made available graph (h) (2) or (3) of this section. to one or more parties of record to the (2)(i) A person under contract or subproceeding, upon request of a party, contract to the United States governunder this paragraph (g)(4). A party of ment to perform work in support of record seeking disclosure of informa- EPA in connection with the Act or reg

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ulations which implement the Act may contractor by an agency other than be considered an authorized representa- EPA, the contractor may disclose or tive of the United States for purposes return the information to that agency); of this paragraph (h). For purposes of (B) That the contractor or subthis section, the term “contract” in- contractor shall obtain written cludes grants and cooperative agree- agreement to honor such terms of the ments under the Environmental Pro- contract or subcontract from each of grams Assistance Act of 1984 (Pub. L. the contractor's or subcontractor's em98-313), and the term "contractor” in- ployees who will have access to the includes grantees and cooperators under formation, before such employee is althe Environmental Programs Assist- lowed such access; and ance Act of 1984. Subject to the limita- (C) That the contractor or subtions in this paragraph (h)(2), informa- contractor acknowledges and agrees tion to which this section applies may that the contract or subcontract provibe disclosed:

sions concerning the use and disclosure (A) To a contractor or subcontractor of business information are included with EPA, if the EPA program office for the benefit of, and shall be enforcemanaging the contract first determines able by, both the United States governin writing that such disclosure is nec- ment and any affected business having essary in order that the contractor or an interest in information concerning subcontractor may carry out the work it supplied to the contractor or subrequired by the contract or sub- contractor by the United States govcontract; or

ernment under the contract or sub(B) To a contractor or subcontractor contract. with an agency other than EPA, if the (iii) No information shall be disclosed EPA program office which provides the under this paragraph (h)(2) until each information to that agency, contrac- affected business has been furnished tor, or subcontractor first determines notice of the contemplated disclosure in writing, in consultation with the by the EPA program office and has General Counsel, that such disclosure been afforded a period found reasonable is necessary in order that the contrac- by that office (not less than 5 working tor or subcontractor may carry out the days) to submit its comments. Such work required by the contract or sub- notice shall include a description of contract.

the information to be disclosed, the (ii) No information shall be disclosed identity of the contractor or subunder this paragraph (h)(2), unless this contractor, the contract or subcontract contract or subcontract in question number, if any, and the purposes to be provides:

served by the disclosure. (A) That the contractor or sub- (iv) The EPA program office shall contractor and the contractor's or sub- prepare a record of each disclosure contractor's employees shall use the under this paragraph (h)(2), showing information only for the purpose of the contractor or subcontractor, the carrying out the work required by the contract or subcontract number, the contract or subcontract, shall refrain information disclosed, the date(s) of from disclosing the information to any- disclosure, and each affected business. one other than EPA without the prior The EPA program office shall maintain written approval of each affected busi- the record of disclosure and the deterness or of an EPA legal office and shall mination of necessity prepared under return to EPA all copies of the infor- paragraph (h)(2)(i) of this section for a mation (and any abstracts or extracts period of not less than 36 months after therefrom) upon request by the EPA the date of the disclosure. program office, whenever the informa- (3) A state or local governmental tion is no longer required by the con- agency which has duties or responsibiltractor or subcontractor for the per- ities under the Act, or under regulaformance of the work required under tions which implement the Act, may be the contract or subcontract, or upon considered an authorized representacompletion of the contract or sub- tive of the United States for purposes contract (where the information was of this paragraph (h). Information to provided to the contractor or sub- which this section applies may be fur

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