[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: 40CFR2.301]
[Page 50-54]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 2_PUBLIC INFORMATION--Table of Contents
Subpart B_Confidentiality of Business Information
Sec. 2.301 Special rules governing certain information obtained
under the Clean Air Act.
(a) Definitions. For the purpose of this section:
(1) Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
(2)(i) Emission data means, with reference to any source of emission
of any substance into the air--
(A) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of any emission which has been emitted by the
source (or of any pollutant resulting from any emission by the source),
or any combination of the foregoing;
(B) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of the emissions which, under an applicable
standard or limitation, the source was authorized to emit (including, to
the extent necessary for such purposes, a description of the manner or
rate of operation of the source); and
(C) A general description of the location and/or nature of the
source to the extent necessary to identify the source and to distinguish
it from other sources (including, to the extent necessary for such
purposes, a description of the device, installation, or operation
constituting the source).
(ii) Notwithstanding paragraph (a)(2)(i) of this section, the
following information shall be considered to be emission data only to
the extent necessary to allow EPA to disclose publicly that a source is
(or is not) in compliance with an applicable standard or limitation, or
to allow EPA to demonstrate the feasibility, practicability, or
attainability (or lack thereof) of an existing or proposed standard or
limitation:
(A) Information concerning research, or the results of research, on
any project, method, device or installation (or any component thereof)
which was produced, developed, installed, and used only for research
purposes; and
(B) Information concerning any product, method, device, or
installation (or any component thereof) designed and intended to be
marketed or used commercially but not yet so marketed or used.
(3) Standard or limitation means any emission standard or limitation
established or publicly proposed pursuant to the Act or pursuant to any
regulation under the Act.
(4) Proceeding means any rulemaking, adjudication, or licensing
conducted by EPA under the Act or under regulations which implement the
Act, except for determinations under this subpart.
(5) Manufacturer has the meaning given it in section 216(1) of the
Act, 42 U.S.C. 7550(1).
(b) Applicability. (1) This section applies to business information
which was--
(i) Provided or obtained under section 114 of the Act, 42 U.S.C.
7414, by the owner or operator of any stationary source, for the purpose
(A) of developing or assisting in the development of any implementation
plan under section 110 or 111(d) of the Act, 42 U.S.C. 7410, 7411(d),
any standard of performance under section 111 of the Act, 42 U.S.C.
7411, or any emission standard under section 112 of the Act, 42 U.S.C.
7412, (B) of determining whether any person is in violation of any such
standard or any requirement of such a plan, or (C) of carrying out any
provision of the Act (except a provision of Part II of the Act with
respect to a manufacturer of new motor vehicles or new motor vehicle
engines);
(ii) Provided or obtained under section 208 of the Act, 42 U.S.C.
7542, for the purpose of enabling the Administrator to determine whether
a manufacturer has acted or is acting in compliance with the Act and
regulations under the Act, or provided or obtained under section 206(c)
of the Act, 42 U.S.C. 7525(c); or
(iii) Provided in response to a subpoena for the production of
papers, books, or documents issued under the authority of section 307(a)
of the Act, 42 U.S.C. 7607(a).
(2) Information will be considered to have been provided or obtained
under section 114 of the Act if it was provided in response to a request
by EPA made for any of the purposes stated in section 114, or if its
submission could have
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been required under section 114, regardless of whether section 114 was
cited as the authority for any request for the information, whether an
order to provide the information was issued under section 113(a) of the
Act, 42 U.S.C. 7413(a), whether an action was brought under section
113(b) of the Act, 42 U.S.C. 7413(b), or whether the information was
provided directly to EPA or through some third person.
(3) Information will be considered to have been provided or obtained
under section 208 of the Act if it was provided in response to a request
by EPA made for any of the purposes stated in section 208, or if its
submission could have been required under section 208, regardless of
whether section 208 was cited as the authority for any request for the
information, whether an action was brought under section 204 of the Act,
42 U.S.C. 7523, or whether the information was provided directly to EPA
or through some third person.
(4) Information will be considered to have been provided or obtained
under section 206(c) of the Act if it was provided in response to a
request by EPA made for any of the purposes stated in section 206(c), or
if its submission could have been required under section 206(c)
regardless of whether section 206(c) was cited as authority for any
request for the information, whether an action was brought under section
204 of the Act, 42 U.S.C. 7523, or whether the information was provided
directly to EPA or through some third person.
(5) Information will be considered to have been provided or obtained
under section 307(a) of the Act if it was provided in response to a
subpoena issued under section 307(a), or if its production could have
been required by subpoena under section 307(a), regardless of whether
section 307(a) was cited as the authority for any request for the
information, whether a subpoena was issued by EPA, whether a court
issued an order under section 307(a), or whether the information was
provided directly to EPA or through some third person.
(c) Basic rules which apply without change. Sec. ions 2.201 through
2.207, Sec. 2.209 and Sec. Sec. 2.211 through 2.215 apply without
change to information to which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality determinations.
Sec. ion 2.208 applies to information to which this section applies,
except that information which is emission data, a standard or
limitation, or is collected pursuant to section 211(b)(2)(A) of the Act
is not eligible for confidential treatment. No information to which this
section applies is voluntarily submitted information.
(f) Availability of information not entitled to confidential
treatment. Sec. ion 2.210 does not apply to information to which this
section applies. Emission data, standards or limitations, and any other
information provided under section 114 or 208 of the Act which is
determined under this subpart not to be entitled to confidential
treatment, shall be available to the public notwithstanding any other
provision of this part. Emission data and standards or limitations
provided in response to a subpoena issued under section 307(a) of the
Act shall be available to the public notwithstanding any other provision
of this part. Information (other than emission data and standards or
limitations) provided in response to a subpoena issued under section
307(a) of the Act, which is determined under this subpart not to be
entitled to confidential treatment, shall be available to the public,
unless EPA determines that the information is exempt from mandatory
disclosure under 5 U.S.C. 552(b) for reasons other than reasons of
business confidentiality and cannot or should not be made available to
the public.
(g) Disclosure of information relevant to a proceeding. (1) Under
sections 114, 208 and 307 of the Act, any information to which this
section applies may be released by EPA because of the relevance of the
information to a proceeding, notwithstanding the fact that the
information otherwise might be entitled to confidential treatment under
this subpart. Release of information because of its relevance to a
proceeding shall be made only in accordance with this paragraph (g).
(2) In connection with any proceeding other than a proceeding
involving a decision by a presiding officer after an evidentiary or
adjudicatory hearing,
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information to which this section applies which may be entitled to
confidential treatment may be made available to the public under this
paragraph (g)(2). No information shall be made available to the public
under this paragraph (g)(2) until any affected business has been
informed that EPA is considering making the information available to the
public under this paragraph (g)(2) in connection with an identified
proceeding, and has afforded the business a reasonable period for
comment (such notice and opportunity to comment may be afforded in
connection with the notice prescribed by Sec. 2.204(d)(1) and Sec.
2.204(e)). Information may be made available to the public under this
paragraph (g)(2) only if, after consideration of any timely comments
submitted by the business, the General Counsel determines that the
information is relevant to the subject of the proceeding and the EPA
office conducting the proceeding determines that the public interest
would be served by making the information available to the public. Any
affected business shall be given at least 5 days' notice by the General
Counsel prior to making the information available to the public.
(3) In connection with any proceeding involving a decision by a
presiding officer after an evidentiary or adjudicatory hearing,
information to which this section applies which may be entitled to
confidential treatment may be made available to the public, or to one or
more parties of record to the proceeding, upon EPA's initiative, under
this paragraph (g)(3). An EPA office proposing disclosure of information
under this paragraph (g)(3), shall so notify the presiding officer in
writing. Upon receipt of such a notification, the presiding officer
shall notify each affected business that disclosure under this paragraph
(g)(3) has been proposed, and shall afford each such business a period
for comment found by the presiding officer to be reasonable under the
circumstances. Information may be disclosed under this paragraph (g)(3)
only if, after consideration of any timely comments submitted by the
business, the EPA office determines in writing that, for reasons
directly associated with the conduct of the proceeding, the contemplated
disclosure would serve the public interest, and the presiding officer
determines in writing that the information is relevant to a matter in
controversy in the proceeding. The presiding officer may condition
disclosure of the information to a party of record on the making of such
protective arrangements and commitments as he finds to be warranted.
Disclosure to one or more parties of record, under protective
arrangements or commitments, shall not, of itself, affect the
eligibility of information for confidential treatment under the other
provisions of this subpart. Any affected business shall be given at
least 5 days notice by the presiding officer prior to making the
information available to the public or to one or more of the parties of
record to the proceeding.
(4) In connection with any proceeding involving a decision by a
presiding officer after an evidentiary or adjudicatory hearing,
information to which this section applies may be made available to one
or more parties of record to the proceeding, upon request of a party,
under this paragraph (g)(4). A party of record seeking disclosure of
information shall direct his request to the presiding officer. Upon
receipt of such a request, the presiding officer shall notify each
affected business that disclosure under this paragraph (g)(4) has been
requested, and shall afford each such business a period for comment
found by the presiding officer to be reasonable under the circumstances.
Information may be disclosed to a party of record under this paragraph
(g)(4) only if, after consideration of any timely comments submitted by
the business, the presiding officer determines in writing that (i) the
party of record has satisfactorily shown that with respect to a
significant matter which is in controversy in the proceeding, the
party's ability to participate effectively in the proceeding will be
significantly impaired unless the information is disclosed to him, and
(ii) any harm to an affected business that would result from the
disclosure is likely to be outweighed by the benefit to the proceeding
and to the public interest that would result from the disclosure. The
presiding officer may condition disclosure of the information to a party
of
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record on the making of such protective arrangements and commitments as
he finds to be warranted. Disclosure to one or more parties of record,
under protective arrangements or commitments, shall not, of itself,
affect the eligibility of information to confidential treatment under
the other provisions of this subpart. Any affected business shall be
given at least 5 days notice by the presiding officer prior to making
the information available to one or more of the parties of record to the
proceeding.
(h) Disclosure to authorized representatives. (1) Under sections
114, 208 and 307(a) of the Act, EPA possesses authority to disclose to
any authorized representative of the United States any information to
which this section applies, notwithstanding the fact that the
information might otherwise be entitled to confidential treatment under
this subpart. Such authority may be exercised only in accordance with
paragraph (h) (2) or (3) of this section.
(2)(i) A person under contract or subcontract to the United States
government to perform work in support of EPA in connection with the Act
or regulations 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
subcontractor 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 a 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
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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 furnished to such an agency at the agency's written
request, but only if--
(i) The agency has first furnished to the EPA office having custody
of the information a written opinion from the agency's chief legal
officer or counsel stating that under applicable State or local law the
agency has the authority to compel a business which possesses such
information to disclose it to the agency, or
(ii) Each affected business is informed of those disclosures under
this paragraph (h)(3) which pertain to it, and the agency has shown to
the satisfaction of an EPA legal office that the agency's use and
disclosure of such information will be governed by State or local law
and procedures which will provide adequate protection to the interests
of affected businesses.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40002, Sept. 8, 1978;
43 FR 42251, Sept. 20, 1978; 50 FR 51662, Dec. 18, 1985; 58 FR 461, Jan.
5, 1993; 58 FR 5061, Jan 19, 1993; 58 FR 7189, Feb. 5, 1993]
