[Federal Register Volume 64, Number 205 (Monday, October 25, 1999)]
[Proposed Rules]
[Pages 57421-57424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27798]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 2
[FRL-6463-1]
Elimination of Special Treatment for Category of Confidential
Business Information
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) proposes to amend
its regulations to eliminate the special treatment given to a category
of confidential business information (CBI) received by EPA. This
category of information includes comments received from businesses to
substantiate their claims of confidentiality for previously submitted
information (``a substantiation''). Under EPA's existing regulations,
EPA automatically regards a substantiation as entitled to confidential
treatment if it is not otherwise possessed by EPA and is properly
marked as confidential when received by EPA. EPA proposes to eliminate
this provision because special treatment of substantiations is no
longer necessary to support the original purpose of the regulation, and
elimination of this provision will bring EPA into conformity with how
substantiations are treated by other federal agencies.
DATES: Comments on this proposed rule must be submitted by December 27,
1999. EPA does not intend to hold a public hearing on this proposed
rule, unless it receives a request for such a hearing. If a request is
submitted by November 24, 1999, EPA will hold a public hearing. If EPA
holds such a hearing, comments must be submitted within 30 days of the
date of the hearing.
ADDRESSES: Written comments on this proposed rule should be addressed
to Oscar Morales, Environmental Protection Agency, Office of
Environmental Information (2151), 401 M Street, SW., Washington, DC
20460. Documents related to this proposed rule will be available for
public inspection and viewing by appointment. If you wish to request a
public hearing on this proposed rule, please notify Mr. Morales at the
address shown above.
FOR FURTHER INFORMATION CONTACT: Oscar Morales, (202) 260-3759.
SUPPLEMENTARY INFORMATION:
I. Background
Currently, when EPA receives a Freedom of Information Act (FOIA)
request for information in EPA's control that was originally claimed as
confidential by the submitter of the information, EPA follows the
procedures in 40 CFR 2.204(e). EPA provides the submitter with notice
of the FOIA request and an opportunity to comment and provide a
substantiation. Once EPA receives the submitter's substantiation, it
evaluates the information and makes a determination as to the
confidentiality of the requested information. If EPA determines that
the
[[Page 57422]]
requested information is not entitled to confidential treatment, EPA
notifies the submitter of its right to seek judicial review of EPA's
determination prior to the release of the information.
If the submitter claims the substantiation itself to be
confidential and marks it in accordance with the requirements of 40 CFR
2.203(b), and if EPA does not already possess the information in the
substantiation, under 40 CFR 2.205(c), the substantiation ``will be
regarded as entitled to confidential treatment and will not be
disclosed by EPA without the [submitter's] consent, unless its
disclosure is duly ordered by a Federal court, notwithstanding other
provisions of this subpart to the contrary.'' Thus, if EPA were to
receive a FOIA request for a substantiation that conforms to the above
requirements, EPA would automatically withhold the substantiation
without going through the CBI determination procedures of 40 CFR part
2, subpart B.
The original purpose of 40 CFR 2.205(c) was to encourage
businesses, which bear the burden of substantiating their claims of
confidentiality, to provide sufficient information to support their
claims by automatically regarding their substantiations as entitled to
confidential treatment if certain specified conditions were met.
II. Description of Proposed Rule
EPA proposes to amend its regulations to remove 40 CFR 2.205(c).
This amendment will eliminate EPA's separate treatment of
substantiations. Instead, EPA will treat substantiations in exactly the
same manner as all other information requested under FOIA and claimed
to be confidential.
EPA believes that there is no continued need for 40 CFR 2.205(c)
for two reasons. First, the special treatment of substantiations under
40 CFR 2.205(c) is no longer necessary to support the original purpose
of 40 CFR 2.205(c), which was to encourage businesses to provide
sufficient information to support their claims. EPA believes that its
CBI determination procedures of 40 CFR part 2, subpart B, provide
adequate safeguards and protections to prevent the improper release of
additional confidential business information contained in a submitter's
substantiation.
Second, EPA believes that removing 40 CFR 2.205(c) will bring EPA
into conformity with how substantiations are treated by other federal
agencies, which do not provide special treatment for substantiations.
III. Statutory Authority
EPA is proposing this rule under the authority of 5 U.S.C. 301, 552
(as amended), and 553.
IV. Economic Impact
This proposed rule is expected to have little or no economic impact
on parties affected by EPA's regulations at 40 CFR part 2, subpart B.
The removal of 40 CFR 2.205(c) will result in EPA's treatment of
substantiations in exactly the same manner as all other information
requested under FOIA and claimed to be confidential. Businesses will
continue to be required to comply with the marking requirements of 40
CFR 2.203(b) when submitting substantiations. Only after EPA receives a
FOIA request for a substantiation and notifies the submitter, pursuant
to 40 CFR 2.204(e), will the submitter have to provide comments to
substantiate its original substantiation.
V. Paperwork Reduction Act
The information collection requirements in this proposed rule have
not been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
amendment to the current Information Collection Request (ICR), (OMB
Control No. 2020-0003) will be prepared by EPA. Once it is prepared, it
will be announced in the Federal Register for public comment.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions. This proposed rule would not have a
significant economic impact on a substantial number of small entities
because it is not expected to result in any significant additional
costs to entities asserting a claim of confidentiality for their
information submitted to EPA. Any cost of providing comments on a
substantiation are likely to be incidental, and most often will simply
document a basis for confidentiality that has already been developed.
Therefore, under 5 U.S.C. 605(b), I certify that this rule will not
have a significant economic impact on a substantial number of small
entities.
VII. Environmental Impact
This proposed rule is expected to have no environmental impact. It
pertains solely to the collection and dissemination of information.
VIII. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to OMB review and the requirements of the Executive
Order. The Executive Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA has determined that this rule is not a ``significant regulatory
action'' under the terms of Executive Order 12866 and is therefore not
subject to interagency review under the Executive Order.
IX. Executive Orders 12875, 13132, and 12612 on Federalism
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to OMB a
description of the extent of EPA's prior consultation with
representatives of affected State, local and tribal governments, the
nature of their concerns, any written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful
[[Page 57423]]
and timely input in the development of regulatory proposals containing
significant unfunded mandates.'' This proposed rule does not create a
mandate on State, local or tribal governments. The rule does not impose
any enforceable duties on these entities. This rule applies to
businesses, not government entities, submitting comments to
substantiate CBI. Accordingly, the requirements of section 1(a) of
Executive Order 12875 do not apply to this rule.
On August 4, 1999, President Clinton issued a new executive order
on federalism, Executive Order 13132 [64 FR 43255 (August 10, 1999)],
which will take effect on November 2, 1999. In the interim, the current
executive order on federalism, Executive Order 12612 [52 FR 41685
(October 30, 1987)] still applies. This proposed rule will not have a
substantial direct effect on States, on the relationship between the
national government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 12612.
X. Executive Order 13084 on Consultation With Indian Tribal
Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to OMB, in a separately identified section of
the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
This proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments. This rule applies to
businesses, not government entities, submitting comments to
substantiate CBI. Accordingly, the requirements of section 3(b) of
Executive Order 13084 do not apply to this rule.
XI. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, EPA must prepare a budgetary impact statement
to accompany any general notice of proposed rulemaking or final rule
that includes a federal mandate which may result in estimated costs to
State, local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more. Under Section 205, for any rule
subject to Section 202, EPA generally must select the least costly,
most cost-effective, or least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Under Section 203, before establishing any regulatory requirements that
may significantly or uniquely affect small governments, EPA must take
steps to inform and advise small governments of the requirements and
enable them to provide input.
EPA has determined that this proposed rule does not include a
federal mandate as defined in UMRA. The rule does not include a federal
mandate that may result in estimated annual costs to State, local or
tribal governments in the aggregate, or to the private sector, of $100
million or more, and does not establish regulatory requirements that
may significantly or uniquely affect small governments.
XII. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR19885, April 23,
1997), applies to any rule that (1) is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, EPA must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned rule is preferable to other potentially effective and
reasonably feasible alternatives considered by EPA.
EPA believes Executive Order 13045 applies only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Executive Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks.
XIII. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, Section 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when EPA decides not to
use available and applicable voluntary consensus standards.
This proposed rule does not involve any technical standards, and
EPA is not considering the use of any voluntary consensus standards.
EPA welcomes comments and specifically invites the public to identify
any potentially-applicable voluntary consensus standards and explain
why such standards should be used in this rule.
List of Subjects in 40 CFR Part 2
Environmental protection, Administrative practice and procedure,
Confidential business information, Freedom of information, Government
employees.
Dated: October 19, 1999.
Carol M. Browner,
Administrator.
For the reasons set out above, EPA proposes to amend 40 CFR part 2
as follows:
PART 2--PUBLIC INFORMATION
1. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 301, 552 (as amended), 553; secs. 114, 205,
208, 301, and 307, Clean Air Act, as amended (42 U.S.C. 7414, 7525,
7542, 7601, 7607); secs. 308, 501 and 509(a), Clean Water Act, as
amended (33 U.S.C. 1318, 1361, 1369(a)); sec. 13, Noise Control Act
of 1972 (42 U.S.C. 4912); secs. 1445 and 1450, Safe Drinking Water
Act (42 U.S.C. 300j-4, 300j-9); secs. 2002, 3007, and 9005, Solid
Waste Disposal Act, as amended (42 U.S.C. 6912, 6927, 6995); secs.
8(c), 11, and 14, Toxic Substances Control Act (15 U.S.C. 2607(c),
2610, 2613); secs. 10, 12, and 25, Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (7 U.S.C. 136h, 136j, 136w); sec.
408(f), Federal Food, Drug and Cosmetic Act, as amended (21 U.S.C.
346(f)); secs. 104(f) and 108, Marine Protection Research and
Sanctuaries Act of
[[Page 57424]]
1972 (33 U.S.C. 1414(f), 1418); secs. 104 and 115, Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C. 9604 and 9615); sec. 505, Motor Vehicle
Information and Cost Savings Act, as amended (15 U.S.C. 2005).
2. Section 2.205(c) is removed and reserved.
[FR Doc. 99-27798 Filed 10-22-99; 8:45 am]
BILLING CODE 6560-50-P
