[Federal Register Volume 67, Number 232 (Tuesday, December 3, 2002)]
[Notices]
[Pages 71962-71963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30597]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7415-8]
Inquiry to Learn Whether Businesses Assert Business
Confidentiality Claims Covering Information Contained in Notifications
of Intent to Export Hazardous Waste From the United States, or
Notifications Under 40 CFR Part 262, Subpart H, Manifests for Shipments
of Hazardous Waste From the United States and Other Documents
Containing the Same Information; Notice of Opportunity To Comment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Environmental Protection Agency has received Freedom of
Information (FOIA) requests for the Hazardous Waste Export Data System
and documents contained therein pertaining to the export of hazardous
waste from the United States. The purpose of this notice is to contact
affected businesses other than those who furnished the documents sought
in the FOIA requests and to provide notice to those businesses of the
opportunity to submit comments to EPA regarding whether the information
sought in those FOIA requests is entitled to treatment as confidential
business information.
DATES: You must ensure that your comments are postmarked or hand
delivered to the EPA office designated below by January 2, 2003. 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 5 U.S.C. 552 is pending.
ADDRESSES: Comments concerning this inquiry and notice should be
submitted to Joseph F. Schive, Enforcement Planning, Targeting and Data
Division (MC 2222A), Office of Compliance, Office of Enforcement and
Compliance Assurance, Environmental Protection Agency, Room 5146A, 1200
Pennsylvania Avenue, NW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Joseph F. Schive, 202-564-4156.
SUPPLEMENTARY INFORMATION: The three types of documents subject to the
document requests are the notification of intent to export (NOI) (part
262, subpart E) or notification (part 262, subpart H), submitted to EPA
in accordance with 40 CFR 262.53 and 262.83, respectively; the
manifest,\1\ a copy of which is given to the United States Customs
Service on leaving the United States, in accordance with 40 CFR
263.20(g)(4), and is then forwarded by Customs to EPA; and the annual
report, submitted to EPA in accordance with 40 CFR 262.56 or
262.87(a).\2\
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\1\ Section 260.10 defines ``manifest'' as ``the shipping
document EPA form 8700-22 and, if necessary, EPA form 8700-22A,
originated and signed by the generator in accordance with the
instructions included in the appendix to part 262.''
\2\ Other documents contained in the database, including
renotifications (40 CFR 262.53(c)), transit notifications,
acknowledgments of consent (id. Sec. 262.53(f)), and exception
reports (id. Sec. Sec. 262.56 and 262.87(b)), also involve the same
parties and some of the same types of information. To the extent the
parties and information overlap, this inquiry and notice will
provide the opportunity to claim confidential business information
treatment for these documents as well.
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For the purposes of this notice, submitters of NOIs, notifications,
manifests and annual reports shall be referred to as ``submitters,''
and non-submitters which might be expected to assert a claim of
business confidentiality because their information also is contained in
the database or the requested documents shall be referred to as ``other
affected businesses.'' The types of businesses which comprise the
category of submitters are the primary exporters \3\ (NOI and annual
report) and notifiers \4\ (notification and annual report), and the
generators \5\ (manifest). The two types of businesses included in the
category of other affected businesses are the transporters \6\ of
hazardous waste; and the consignees \7\ (and alternate consignees)
under subpart E, or consignees \8\ and recovery facilities \9\ under
subpart H. The latter are located outside the United States, in the
receiving or importing countries. Thus, affected businesses may include
foreign business entities, as well as domestic businesses.
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\3\ Section 262.51 defines ``primary exporter'' as ``any person
who is required to originate the manifest for a shipment of
hazardous waste in accordance with 40 CFR part 262, subpart B, or
equivalent State provision, which specifies a treatment, storage or
disposal facility in a receiving country as the facility to which
the hazardous waste will be sent and any intermediary arranging for
the export.''
\4\ Section 262.81 defines ``notifier'' as ``the person under
the jurisdiction of the exporting country which has, or will have at
the time the planned transfrontier movement commences, possession or
other forms of legal control of the wastes and who proposes their
transfrontier movement for the ultimate purpose of submitting them
to recovery operations. When the United States (U.S.) is the
exporting country, notifier is interpreted to mean a person
domiciled in the U.S.''
\5\ Section 260.10 defines ``generator'' as ``any person, by
site, whose act or process produces hazardous waste identified or
listed in part 261 of this chapter or whose act first causes a
hazardous waste to become subject to regulation.''
\6\ Section 260.10 defines ``transporter'' as ``a person engaged
in the offsite transportation of hazardous waste by air, rail,
highway or water.''
\7\ Section 262.51 defines ``consignee'' for purposes of subpart
F as ``the ultimate treatment, storage or disposal facility in a
receiving country to which the hazardous waste will be sent.''
\8\ Section 262.83 defines ``consignee'' for purposes of subpart
H as ``the person to whom possession or other form of legal control
of the waste is assigned at the time the waste is received in the
importing country.''
\9\ Section 262.83 defines ``recovery facility'' as ``an entity
which, under applicable domestic law, is operating or is authorized
to operate in the importing country to receive wastes and to perform
recovery operations on them.''
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The submitters of the documents sought in the FOIA requests did not
assert a claim of business confidentiality covering part or all of that
information. As set forth in the Resource Conservation and Recovery Act
(RCRA) regulations, at 40 CFR 260.2(b), ``if no such 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.''
Moreover, as EPA pointed out in the preambles to the proposed and final
RCRA export rules, 51 FR 8744 (March 13, 1986) and 51 FR 28644 (August
8, 1986), respectively, EPA does not believe that notification
information and also manifest information generally are entitled to
treatment as confidential business information. Nevertheless, EPA is
mindful of the fact that the cited provision must be read in
conjunction with the protection which the FOIA regulations afford other
affected businesses.
[[Page 71963]]
1. Other Affected Businesses
EPA regulations regarding FOIA requirements, at 40 CFR 2.204(c)(1),
require an EPA office which is responsible for responding to a request
under 5 U.S.C. 552 for the release of business information (EPA office)
``to determine which businesses, if any are affected businesses (see
Sec. 2.201(d)) * * *'' ``Affected business'' is defined at Sec.
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.''
EPA has furnished, to those persons whose request for release of
information is pending under 5 U.S.C. 552, a determination (in
accordance with 40 CFR 2.113) that the information may be entitled to
confidential treatment under this subpart and 5 U.S.C. 552(b)(4), that
further inquiry by EPA pursuant to this subpart is required before a
final determination on the request can be issued, that the persons'
requests are therefore initially denied, and that after inquiry a final
determination will be issued by an EPA legal office. 40 CFR
2.204(d)(1)(ii).
2. The Purposes of This Notice
This notice encompasses two distinct steps in the process of
communication with other affected businesses: the preliminary inquiry
and the notice of opportunity to comment.
a. Inquiry to Learn Whether Other Affected Businesses Assert Claims
Covering the Information
Section 2.204(c)(2) provides:
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 official
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) require that written notice be
provided to businesses stating that EPA is determining under this
subpart whether the information is entitled to confidential treatment,
and affording the businesses an opportunity to comment.
3. The Use of Publication in the Federal Register
Section 2.0204(e)(1) 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 other affected businesses and to furnish the
notice of opportunity to submit comments. Its determination to follow
this course was made in recognition of the large number of businesses
included in the pertinent universe. EPA estimates that there are
approximately 400 other affected businesses, including approximately
100 transporters, 150 consignees and alternate consignees under subpart
E, and 150 consignees and recovery facilities under subpart H.
Employment of publication in the Federal Register also dispenses with
orally informing a responsible representative of the business that it
should expect to receive a written notice, and requesting the business
to contact the EPA office if the written notice has not been received
within a few days, so that EPA may furnish a duplicate notice. 40 CFR
2.204(e)(3).
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), EPA will construe your failure
to furnish timely comments as a waiver of the business's claim.
6. What To Include in Your Comments
If you feel that some or all of the information contained in the
two types of documents which are 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 will 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:
1. For what period of time do you request that the information be
maintained as confidential? 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. Has any governmental body made a determination as to the
confidentiality of the information? If so, please attach a copy of the
determination.
5. Is the information contained in any publicly available material
such as promotional publications, annual reports, articles, etc.? Is
there any means by which a member of the public could obtain access to
the information?
6. For each category of information claimed as confidential,
discuss with specificity why release of the information is likely to
cause substantial harm to your competitive position. Explain the 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 ``voluntarily submitted''
as defined at 40 CFR 2.201(i)? If so, explain why, and how disclosure
would tend to lessen EPA's ability to obtain similar information in the
future.
8. Any other issue you deem relevant.
Please note that you bear the burden of substantiating your
confidentiality claim pursuant to 40 CFR 2.208(e). 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. If you fail
to claim the information as confidential upon submission it may be made
available to the public without further notice to you.
Dated: November 22, 2002.
Michael M. Stahl,
Director, Office of Compliance.
[FR Doc. 02-30597 Filed 12-2-02; 8:45 am]
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