
[Federal Register: May 1, 2009 (Volume 74, Number 83)]
[Notices]               
[Page 20293-20296]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01my09-35]                         

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2009-0288; FRL-8899-8]

 
Inquiry To Learn Whether Businesses Assert Business 
Confidentiality Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for comment.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency 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) 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 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 June 1, 2009. 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-2009-0288, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: kreisler.eva@epa.gov.
     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-
2009-0288. 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: kreisler.eva@epa.gov.

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)

[[Page 20294]]

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) export and import of 
RCRA universal waste under 40 CFR part 273, subparts B, C, D, and F; 
and (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).

I. General Information

    EPA has previously published a notice in the Federal Register, at 
72 FR 21006, April 27, 2007, that addresses issues similar to those 
raised by today's notice. The Agency did not receive any comments on 
the 2007 notice. Since the publication of the 2007 notice, the Agency 
has continued to receive FOIA requests for documents and data contained 
in the EPA Waste International Tracking System (``WITSnet'') database 
and other EPA databases 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, including but not limited to the 
``notification of intent to export,'' \4\ ``manifests,'' \5\ ``annual 
reports,'' \6\ ``EPA acknowledgements of consent,'' \7\ ``exception 
reports,'' \8\ ``transit notifications,'' \9\ and ``renotifications;'' 
\10\ (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; and (5) documents related to 
the export and import of RCRA ``universal waste'' \11\ under 40 CFR 
part 273, subparts B, C, D, and F.
---------------------------------------------------------------------------

    \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 term ``exception reports'' is described at 40 CFR 
262.55.
    \9\ The term ``transit notifications'' is described at 40 CFR 
262.53(e).
    \10\ The term ``renotifications'' is described at 40 CFR 
262.53(c).
    \11\ The term ``universal waste'' is defined at 40 CFR 273.9.
---------------------------------------------------------------------------

    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.\12\ 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.
---------------------------------------------------------------------------

    \12\ 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.
---------------------------------------------------------------------------

    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 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.\13\
---------------------------------------------------------------------------

    \13\ With the exception, noted above, of the submission of 
information relating to the export and import of RCRA universal 
waste.
---------------------------------------------------------------------------

    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.

[[Page 20295]]

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 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.

[[Page 20296]]

     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: April 27, 2009.
Susan E. Bromm,
Director, Office of Federal Activities.
[FR Doc. E9-10076 Filed 4-30-09; 8:45 am]

BILLING CODE 6560-50-P
