[Federal Register Volume 76, Number 2 (Tuesday, January 4, 2011)]
[Notices]
[Pages 362-365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33188]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OECA-2010-1003; FRL-9247-3]
Inquiry To Learn Whether Businesses Assert Business
Confidentiality Claims
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; request for comment.
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SUMMARY: The Environmental Protection Agency (EPA) receives from time
to time Freedom of Information Act (FOIA) requests for documentation
received or issued by EPA or data contained in EPA database systems
pertaining to the export and import of Resource Conservation and
Recovery Act (RCRA) hazardous waste from/to the United States, the
export of cathode ray tubes (CRTs) and spent lead acid batteries
(SLABs) from the United States, and the export and import of RCRA
universal waste from/to the United States. These documents and data may
identify or reference multiple parties, and describe transactions
involving the movement of specified materials in which the parties
propose to participate or have participated. The purpose of this notice
is to inform ``affected businesses'' about the documents or data sought
by these types of FOIA requests in order to provide the businesses with
the opportunity to assert claims that any of the information sought
that pertains to
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them is entitled to treatment as confidential business information
(CBI), and to send comments to EPA supporting their claims for such
treatment. Certain businesses, however, do not meet the definition of
``affected business,'' and are not covered by today's notice. They
consist of any business that actually submitted to EPA any document at
issue pursuant to applicable RCRA regulatory requirements and did not
assert a CBI claim as to information that pertains to that business in
connection with the document at the time of its submission; they have
waived their right to do so at a later time. Nevertheless, other
businesses identified or referenced in the documents that were
submitted to EPA by the submitting business may have a right to assert
a CBI claim concerning information that pertains to them and may do so
in response to this notice.
DATES: Comments must be received on or before February 3, 2011. The
period for submission of comments may be extended if, before the
comments are due, you make a request for an extension of the comment
period and it is 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 the FOIA is pending.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2010-1003, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Address: Eva Kreisler, International Compliance Assurance
Division, Office of Federal Activities, Office of Enforcement and
Compliance Assurance, Environmental Protection Agency, Mailcode: 2254A,
1200 Pennsylvania Ave., NW., Washington, DC 20460.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-
2010-1003. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. Instructions about how to submit
comments claimed as CBI are given later in this notice. The http://www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through http://www.regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment. Please include your name and other contact information with
any disk or CD-ROM you submit by mail. If EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses. For additional information about EPA's
public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index.
Although listed in the index, some information is not publicly
available, e.g., CBI or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy. Publicly
available docket materials are available either electronically in
http://www.regulations.gov or in hard copy at the HQ EPA Docket Center,
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
docket for this notice is (202) 566-1752.
FOR FURTHER INFORMATION CONTACT: Eva Kreisler, International Compliance
Assurance Division, Office of Federal Activities, Office of Enforcement
and Compliance Assurance, Environmental Protection Agency, Mailcode:
2254A, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
number: (202) 564-8186; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: Today's notice relates to any documents or
data in the following areas: (1) Export of Resource Conservation and
Recovery Act (RCRA) hazardous waste under 40 CFR part 262, subparts E
and H; (2) import of RCRA hazardous waste under 40 CFR part 262,
subparts F and H; (3) transit of RCRA hazardous waste under 40 CFR part
262, subpart H, through the United States and foreign countries; (4)
export of cathode ray tubes under 40 CFR part 261, subpart E; (5)
exports of non-crushed spent lead acid batteries with intact casings
under 40 CFR part 266 subpart G; (6) export and import of RCRA
universal waste under 40 CFR part 273, subparts B, C, D, and F; (7)
submissions from transporters under 40 CFR part 263, or from treatment,
storage or disposal facilities under 40 CFR parts 264 and 265, related
to exports or imports of hazardous waste, including receiving facility
notices under 40 CFR 264.12(a)(1) and 265.12(a)(1) and import consent
documentation under 40 CFR 264.71(a)(3) and 265.71(a)(3).
I. General Information
EPA has previously published notices similar to this one in the
Federal Register, the latest one being at 75 FR 4812, July 30, 2010,
that address issues similar to those raised by today's notice. The
Agency did not receive any comments on the previous notices. Since the
publication of the July 30, 2010, notice, the Agency has continued to
receive FOIA requests for documents and data contained in EPA's
database related to hazardous waste exports and imports.
II. Issues Covered by This Notice
Specifically, EPA receives FOIA requests from time to time for
documentation or data related to hazardous waste exports and imports
that may identify or reference multiple parties, and that describe
transactions involving the movement of specified materials in which the
parties propose to participate or have participated. This notice
informs ``affected businesses,'' \1\ which could include, among others,
``transporters'' \2\ and ``consignees,'' \3\ of the requests for
information in EPA database systems and/or contained in one or more of
the following documents: (1) Documents related to the export of
Resource Conservation and Recovery Act (RCRA) hazardous waste under 40
CFR part 262, subparts E and H,
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including but not limited to the ``notification of intent to export,''
\4\ ``manifests,'' \5\ ``annual reports,'' \6\ ``EPA acknowledgements
of consent,'' \7\ ``any subsequent communication withdrawing a prior
consent or objection,'' \8\ ``responses that neither consent nor
object,'' ``exception reports,'' \9\ ``transit notifications,'' \10\
and ``renotifications;'' \11\ (2) documents related to the import of
hazardous waste under 40 CFR part 262, subparts F and H, including but
not limited to notifications of intent to import hazardous waste into
the U.S. from foreign countries; (3) documents related to the transit
of hazardous waste under 40 CFR part 262, subpart H, including
notifications from U.S. exporters of intent to transit through foreign
countries, or notifications from foreign countries of intent to transit
through the U.S.; (4) documents related to the export of cathode ray
tubes (CRTs) under 40 CFR part 261, subpart E, including but not
limited to notifications of intent to export CRTs; (5) documents
related to the export of non-crushed spent lead acid batteries (SLABs)
with intact casings under 40 CFR part 266 subpart G, including but not
limited to notifications of intent to export SLABs; (6) submissions
from transporters under 40 CFR part 263, or from treatment, storage or
disposal facilities under 40 CFR parts 264 and 265, related to exports
or imports of hazardous waste, including receiving facility notices
under 40 CFR 264.12(a)(1) and 265.12(a)(1) and import consent
documentation under 40 CFR 264.71(a)(3) and 265.71(a)(3), and (7)
documents related to the export and import of RCRA ``universal waste''
\12\ under 40 CFR part 273, subparts B, C, D, and F.
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\1\ The term ``affected business'' is defined at 40 CFR
2.201(d), and is set forth in this notice, below.
\2\ The term ``transporter'' is defined at 40 CFR 260.10.
\3\ The term ``consignee'' is defined, for different purposes,
at 40 CFR 262.51 and 262.81(c).
\4\ The term ``notification of intent to export'' is described
at 40 CFR 262.53.
\5\ The term ``manifest'' is defined at 40 CFR 260.10.
\6\ The term ``annual reports'' is described at 40 CFR 262.56.
\7\ The term ``EPA acknowledgement of consent'' is defined at 40
CFR 262.51.
\8\ The requirement to forward to the exporter ``any subsequent
communication withdrawing a prior consent or objection'' is found at
42 U.S.C. 6938(e)
\9\ The term ``exception reports'' is described at 40 CFR
262.55.
\10\ The term ``transit notifications'' is described at 40 CFR
262.53(e).
\11\ The term ``renotifications'' is described at 40 CFR
262.53(c).
\12\ The term ``universal waste'' is defined at 40 CFR 273.9.
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Certain businesses, however, do not meet the definition of
``affected business,'' and are not covered by today's notice. They
consist of any business that actually submitted information responsive
to a FOIA request, under the authority of 40 CFR parts 260 through 266
and 268, and did not assert a claim of business confidentiality
covering any of that information at the time of submission. As set
forth in the RCRA regulations at 40 CFR 260.2(b), ``if no such
[business confidentiality] claim accompanies the information when it is
received by EPA, it may be made available to the public without further
notice to the person submitting it.'' Thus, for purposes of this notice
and as a general matter under 40 CFR 260.2(b), a business that
submitted to EPA the documents at issue, pursuant to applicable
regulatory requirements, and that failed to assert a claim as to
information that pertains to it at the time of submission, cannot
later make a confidentiality claim.\13\ Nevertheless, other
businesses identified or referenced in the same documents that were
submitted to EPA by the submitting business may have a right to assert
a CBI claim concerning information that pertains to them and may do so
in response to this notice.
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\13\ However, businesses having submitted information to EPA
relating to the export and import of RCRA universal waste are not
subject to 40 CFR 260.2(b) since they submitted information in
accordance with 40 CFR part 273, and not parts 260 through 266 and
268, as set forth in 40 CFR 260.2(b). They are therefore affected
businesses that could make a claim of CBI at the time of submission
or in response to this notice.
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In addition, EPA may develop its own documents and organize into
its database systems information that was originally contained in
documents from submitting businesses relating to exports and imports of
hazardous waste. If a submitting business fails to assert a CBI claim
for the documents it submits to EPA at the time of submission, not only
does it waive its right to claim CBI for those documents, but it also
waives its right to claim CBI for information in EPA's documents or
databases that is based on or derived from the documents that were
originally submitted by that business.\14\
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\14\ With the exception, noted above, of the submission of
information relating to the export and import of RCRA universal
waste.
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In accordance with 40 CFR 2.204(c) and (e), this notice inquires
whether any affected business asserts a claim that any of the requested
information constitutes CBI, and affords such business an opportunity
to comment to EPA on the issue. This notice also informs affected
businesses that, if a claim is made, EPA would determine under 40 CFR
part 2, subpart B, whether any of the requested information is entitled
to confidential treatment.
1. Affected Businesses
EPA's FOIA regulations at 40 CFR 2.204(c)(1) require an EPA office
that is responsible for responding to a FOIA request for the release of
business information (``EPA office'') ``to determine which businesses,
if any, are affected businesses * * *.'' ``Affected business'' is
defined at 40 CFR 2.201(d) as, ``* * * with reference to an item of
business information, a business which has asserted (and not waived or
withdrawn) a business confidentiality claim covering the information,
or a business which could be expected to make such a claim if it were
aware that disclosure of the information to the public was proposed.''
2. The Purposes of This Notice
This notice encompasses two distinct steps in the process of
communication with affected businesses prior to EPA's making a final
determination concerning the confidentiality of the information at
issue: The preliminary inquiry and the notice of opportunity to
comment.
a. Inquiry To Learn Whether Affected Businesses (Other Than Those
Businesses That Previously Asserted a CBI Claim) Assert Claims Covering
Any of the Requested Information
Section 2.204(c)(2)(i) provides, in relevant part:
If the examination conducted under paragraph (c)(1) of this section
discloses the existence of any business which, although it has not
asserted a claim, might be expected to assert a claim if it knew EPA
proposed to disclose the information, the EPA office shall contact a
responsible official of each such business to learn whether the
business asserts a claim covering the information.
b. Notice of Opportunity To Submit Comments
Sections 2.204(d)(1)(i) and 2.204(e)(1) of Title 40 of the Code of
Federal Regulations require that written notice be provided to
businesses that have made claims of business confidentiality for any of
the information at issue, stating that EPA is determining under 40 CFR
part 2, subpart B, whether the information is entitled to confidential
treatment, and affording each business an opportunity to comment as to
the reasons why it believes that the information deserves confidential
treatment.
3. The Use of Publication in the Federal Register
Section 2.204(e)(1) of Title 40 of the Code of Federal Regulations
requires that this type of notice be furnished by
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certified mail (return receipt requested), by personal delivery, or by
other means which allows verification of the fact and date of receipt.
EPA, however, has determined that in the present circumstances the use
of a Federal Register notice is the only practical and efficient way to
contact affected businesses and to furnish the notice of opportunity to
submit comments. The Agency's decision to follow this course was made
in recognition of the administrative difficulty and impracticality of
directly contacting potentially thousands of individual businesses.
4. Submission of Your Response in the English Language
All responses to this notice must be in the English language.
5. The Effect of Failure To Respond to This Notice
In accordance with 40 CFR 2.204(e)(1) and 2.205(d)(1), EPA will
construe your failure to furnish timely comments in response to this
notice as a waiver of your business's claim(s) of confidentiality for
any information in the types of documents identified in this notice.
6. What To Include in Your Comments
If you believe that any of the information contained in the types
of documents which are described in this notice and which are
currently, or may become, subject to FOIA requests, is entitled to
confidential treatment, please specify which portions of the
information you consider confidential. Information not specifically
identified as subject to a confidentiality claim may be disclosed to
the requestor without further notice to you.
For each item or class of information that you identify as being
subject to your claim, please answer the following questions, giving as
much detail as possible:
1. For what period of time do you request that the information be
maintained as confidential, e.g., until a certain date, until the
occurrence of a specified event, or permanently? If the occurrence of a
specific event will eliminate the need for confidentiality, please
specify that event.
2. Information submitted to EPA becomes stale over time. Why should
the information you claim as confidential be protected for the time
period specified in your answer to question no. 1?
3. What measures have you taken to protect the information claimed
as confidential? Have you disclosed the information to anyone other
than a governmental body or someone who is bound by an agreement not to
disclose the information further? If so, why should the information
still be considered confidential?
4. Is the information contained in any publicly available material
such as the Internet, publicly available data bases, promotional
publications, annual reports, or articles? Is there any means by which
a member of the public could obtain access to the information? Is the
information of a kind that you would customarily not release to the
public?
5. Has any governmental body made a determination as to the
confidentiality of the information? If so, please attach a copy of the
determination.
6. For each category of information claimed as confidential,
explain with specificity why release of the information is likely to
cause substantial harm to your competitive position. Explain the
specific nature of those harmful effects, why they should be viewed as
substantial, and the causal relationship between disclosure and such
harmful effects. How could your competitors make use of this
information to your detriment?
7. Do you assert that the information is submitted on a voluntary
or a mandatory basis? Please explain the reason for your assertion. If
the business asserts that the information is voluntarily submitted
information, please explain whether and why disclosure of the
information would tend to lessen the availability to EPA of similar
information in the future.
8. Any other issue you deem relevant.
Please note that you bear the burden of substantiating your
confidentiality claim. Conclusory allegations will be given little or
no weight in the determination. If you wish to claim any of the
information in your response as confidential, you must mark the
response ``CONFIDENTIAL'' or with a similar designation, and must
bracket all text so claimed. Information so designated will be
disclosed by EPA only to the extent allowed by, and by means of, the
procedures set forth in, 40 CFR part 2, subpart B. If you fail to claim
the information as confidential, it may be made available to the
requestor without further notice to you.
III. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Please submit this information by
mail to the address identified in the ADDRESSES section of today's
notice for inclusion in the non-public CBI docket. Clearly mark the
part or all of the information that you claim to be CBI. For CBI
information in a disk or CD ROM that you mail to EPA, mark the outside
of the disk or CD ROM as CBI and then identify electronically within
the disk or CD ROM the specific information that is claimed as CBI.
Information so marked will not be disclosed except in accordance with
the procedures set forth in 40 CFR part 2, subpart B. In addition to
the submission of one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the notice by docket number and other identifying
information (subject heading, Federal Register date and page number).
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Describe any assumptions and provide any technical
information and/or data that you used.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Make sure to submit your comments by the comment period
deadline identified.
Dated: December 20, 2010.
Susan E. Bromm,
Director, Office of Federal Activities.
[FR Doc. 2010-33188 Filed 1-3-11; 8:45 am]
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