[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: 40CFR2.209]
[Page 45-47]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 2_PUBLIC INFORMATION--Table of Contents
Subpart B_Confidentiality of Business Information
Sec. 2.209 Disclosure in special circumstances.
(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.)
(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
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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) The request, if any, sets forth the official purpose for which
the information is needed;
(3) When the information has been claimed as confidential or has
been determined to be confidential, the responsible EPA office provides
notice to each affected business of the type of information to be
disclosed and to whom it is to be disclosed. At the discretion of the
office, such notice may be given by notice published in the Federal
Register at least 10 days prior to disclosure, or by letter sent by
certified mail return receipt requested or telegram either of which must
be received by the affected business at least 10 days prior to
disclosure. However, no notice shall be required when EPA furnishes
business information to another Federal agency to perform a function on
behalf of EPA, including but not limited to--
(i) Disclosure to the Department of Justice for purposes of
investigation or prosecution of civil or criminal violations of Federal
law related to EPA activities;
(ii) Disclosure to the Department of Justice for purposes of
representing EPA in any matter; or
(iii) Disclosure to any Federal agency for purposes of performing an
EPA statutory function under an interagency agreement.
(4) EPA notifies the other agency of any unresolved business
confidentiality claim covering the information and of any determination
under this subpart that the information is entitled to confidential
treatment, and that further disclosure of the information may be a
violation of 18 U.S.C. 1905; and
(5) The other agency agrees in writing not to disclose further any
information designated as confidential unless--
(i) The other agency has statutory authority both to compel
production of the information and to make the proposed disclosure, and
the other agency has, prior to disclosure of the information to anyone
other than its officers and employees, furnished to each affected
business at least the same notice to which the affected business would
be entitled under this subpart;
(ii) The other agency has obtained the consent of each affected
business to the proposed disclosure; or
(iii) The other agency has obtained a written statement from the EPA
General Counsel or an EPA Regional Counsel that disclosure of the
information would be proper under this subpart.
(d) Court-ordered disclosure. EPA may disclose any business
information in any manner and to the extent ordered by a Federal court.
Where possible, and when not in violation of a specific directive from
the court, the EPA office disclosing information claimed as confidential
or determined to be confidential shall provide as much advance notice as
possible to each affected business of the type of information to be
disclosed and to whom it is to be disclosed, unless the affected
business has actual notice of the court order. At the discretion of the
office, subject to any restrictions by the court, such notice may be
given by notice in the Federal Register, letter sent by certified mail
return receipt requested, or telegram.
(e) Disclosure within EPA. An EPA office, officer, or employee may
disclose any business information to another
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EPA office, officer, or employee with an official need for the
information.
(f) Disclosure with consent of business. EPA may disclose any
business information to any person if EPA has obtained the prior consent
of each affected business to such disclosure.
(g) Record of disclosures to be maintained. Each EPA office which
discloses information to Congress, a committee or subcommittee of
Congress, the Comptroller General, or another Federal agency under the
authority of paragraph (b) or (c) of this section, shall maintain a
record of the fact of such disclosure for a period of not less than 36
months after such disclosure. Such a record, which may be in the form of
a log, shall show the name of the affected businesses, the date of
disclosure, the person or body to whom disclosure was made, and a
description of the information disclosed.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978;
50 FR 51661, Dec. 18, 1985]
