[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR2.205]
[Page 41-43]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 2_PUBLIC INFORMATION--Table of Contents
Subpart B_Confidentiality of Business Information
Sec. 2.205 Final confidentiality determination 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 Sec. 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 Sec. 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case, unless the request has been withdrawn.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
Sec. 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 Sec. 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 Sec. 2.204(d)(1) and Sec. 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) but the 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 Sec. 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
Sec. 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 previously-issued determinations under this subpart which are
pertinent, the materials furnished it under Sec. 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
confidential treatment for the benefit of the business that asserted the
claim, and the period of any such entitlement (e.g.,
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until a certain date, until the occurrence of a specified event, or
permanently), and shall take further action under paragraph (e) or (f)
of this section, as appropriate.
(3) Whenever the claims of two or more businesses apply to the same
information, the EPA legal office shall take action appropriate under
the particular circumstances to protect the interests of all persons
concerned (including any person whose request for the information is
pending under 5 U.S.C. 552).
(e) Determination that information is entitled to confidential
treatment. If the EPA legal office determines that the information is
entitled to confidential treatment for the full period requested by the
business which made the claim, EPA shall maintain the information in
confidence for such period, subject to paragraph (h) of this section,
Sec. 2.209, and the other provisions of this subpart 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 information 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 Sec. 2.204, to each
business on behalf of which a claim has been made, whenever Sec.
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 Sec.
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
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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 a speedy resolution of the timely-
commenced action.
(5) Any person whose request for release of the information 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 (paragraph (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 Sec. 2.206 or Sec. 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 Sec. 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
Sec. 2.204 or Sec. 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]
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