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EPA Part 2 Section 205

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case, unless the request has been withdrawn.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., 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
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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