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EPA Part 2 Section 301

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 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. Sections 2.201 through 
2.207, Sec. 2.209 and Secs. 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. 
Section 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. Section 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, 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 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 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]

 


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