§2.301. Special rules governing certain information obtained under the Clean Air Act. — Inbound Citations

(e) include the concept of trade secrecy and other related legal concepts which give (or may give) a business the right to preserve the confidentiality of business information and to limit its use or disclosure by others in order that the business may obtain or retain business advantages it derives from its rights in the information. The definition is meant to encompass any concept which authorizes a Federal agency to withhold business information under 5 U.S.C. 552(b)(4), as well as any concept which requires EPA to withhold information from the public for the benefit of a business under 18 U.S.C. 1905 or any of the various statutes cited in §§ 2.301 through 2.309.

(b) Various statutes (other than 5 U.S.C. 552) under which EPA operates contain special provisions concerning the entitlement to confidential treatment of information gathered under such statutes. Sections 2.301 through 2.311 prescribe rules for treatment of certain categories of business information obtained under the various statutory provisions. Paragraph (b) of each of those sections should be consulted to determine whether any of those sections applies to the particular information in question.

The availability to the public of information provided to, or otherwise obtained by, the Administrator under this part shall be governed by part 2 of this chapter. (Information submitted voluntarily to the Administrator for the purposes of §§ 60.5 and 60.6 is governed by §§ 2.201 through 2.213 of this chapter and not by § 2.301 of this chapter.)

(v) The owner or operator must maintain at the affected source a current startup, shutdown, and malfunction plan and must make the plan available upon request for inspection and copying by the Administrator. In addition, if the startup, shutdown, and malfunction plan is subsequently revised as provided in paragraph (e)(3)(viii) of this section, the owner or operator must maintain at the affected source each previous (i.e., superseded) version of the startup, shutdown, and malfunction plan, and must make each such previous version available for inspection and copying by the Administrator for a period of 5 years after revision of the plan. If at any time after adoption of a startup, shutdown, and malfunction plan the affected source ceases operation or is otherwise no longer subject to the provisions of this part, the owner or operator must retain a copy of the most recent plan for 5 years from the date the source ceases operation or is no longer subject to this part and must make the plan available upon request for inspection and copying by the Administrator. The Administrator may at any time request in writing that the owner or operator submit a copy of any startup, shutdown, and malfunction plan (or a portion thereof) which is maintained at the affected source or in the possession of the owner or operator. Upon receipt of such a request, the owner or operator must promptly submit a copy of the requested plan (or a portion thereof) to the Administrator. The owner or operator may elect to submit the required copy of any startup, shutdown, and malfunction plan to the Administrator in an electronic format. If the owner or operator claims that any portion of such a startup, shutdown, and malfunction plan is confidential business information entitled to protection from disclosure under section 114(c) of the Act or 40 CFR 2.301, the material which is claimed as confidential must be clearly designated in the submission.

(a) Except as provided in paragraph (b) of this section, an owner or operator of a stationary source required to report or otherwise provide information under this part may make a claim of confidential business information for any such information that meets the criteria set forth in 40 CFR 2.301.

(a) An owner or operator claiming that information is confidential business information must substantiate that claim by providing documentation that demonstrates that the claim meets the substantive criteria set forth in 40 CFR 2.301.

(b) The following information contained in EPA determinations that RINs are invalid under § 80.1474(b)(4)(i)(C)(2) and (b)(4)(ii)(C)(2), notices of violation, settlement agreements, administrative complaints, civil complaints, criminal information, and criminal indictments arising under this subpart is not entitled to confidential treatment and the provisions of 40 CFR 2.201 through 2.215 and 2.301 do not apply:

(2) The name and location of the facility at which the fuel associated with the RINs in question was allegedly produced or imported.

(3) The EPA-issued company or facility identification number of the party that produced the fuel or generated the RINs in question.

(a) Sections 2.201 through 2.215 and 2.301 of this chapter do not apply to data submitted under this subpart that EPA has determined through rulemaking to be either of the following:

(1) Emission data, as defined in § 2.301(a)(2) of this chapter, determined in accordance with section 114(c) and 307(d) of the Clean Air Act; or

(a) Except as otherwise provided in this section, 40 CFR 2.201 through 2.215 and 2.301 do not apply to data submitted under this subpart that EPA has determined through rulemaking to be either of the following:

(1) Emission data, as defined in 40 CFR 2.301(a)(2), determined in accordance with section 114(c) and 307(d) of the Clean Air Act; or

(1) Except as otherwise provided in paragraph (i) of this section, 40 CFR 2.201 through 2.215 and 2.301 do not apply to data submitted under this part that EPA has determined through rulemaking to be either of the following:

(i) Emission data, as defined in 40 CFR 2.301(a)(2), determined in accordance with section 114(c) and 307(d) of the Clean Air Act; or

(e) See 40 CFR 1068.10 for provisions related to confidential information. Note however that under 40 CFR 2.301, emission data are generally not eligible for confidential treatment.

(e) See 40 CFR 1068.10 for provisions related to confidential information. Note however that under 40 CFR 2.301, emission data are generally not eligible for confidential treatment.

(a) This paragraph (a) applies the definition of “Emission data” in 40 CFR 2.301(a) for information related to engines/equipment subject to this part. “Emission data” cannot be treated as confidential business information and shall be available to be disclosed to the public except as specified in § 1068.10(d)(1). The following categories of information qualify as emission data, except as specified in paragraph (c) of this section:

(1) Certification and compliance information, including information submitted in an application for a certificate of conformity that is used to assess compliance.

(2) Fleet value information, including information submitted for compliance with fleet average emission standards and emissions related ABT credit information, including the information used to generate credits.

(3) For example, engine family information or test group information would identify the regulated emission source.

(4) Test information and results, including emission test results and other data from emission testing that are submitted in an application for a certificate of conformity, test results from in-use testing, production-line testing, and any other testing to demonstrate emissions. The information in this category includes all related information to characterize test results, document the measurement procedure, and modeling inputs and outputs where the compliance demonstration is based on computer modeling.

(5) ABT credit information, including information submitted for current and future compliance demonstrations using credits under an ABT program.

(6) Production volume, including information submitted for compliance with fleet average emission standards, compliance with requirements to test production engines/equipment, or compliance through ABT programs.

(7) Defect and recall information, including all information submitted in relation to a defect or recall except the remedial steps you identify in § 1068.510(a)(2).

(1) Emission data, as defined in § 2.301(a)(2) of this chapter, determined in accordance with section 114(c) and 307(d) of the Clean Air Act; or

(1) Emission data, as defined in 40 CFR 2.301(a)(2), determined in accordance with section 114(c) and 307(d) of the Clean Air Act; or

(i) Emission data, as defined in 40 CFR 2.301(a)(2), determined in accordance with section 114(c) and 307(d) of the Clean Air Act; or

(1) We will treat information submitted in an application for certification as confidential until the introduction-into-commerce date you identify in your application for certification consistent with 40 CFR 2.301(a)(2)(ii)(B). If you do not identify an introduction-into-commerce date or if we issue the certificate after your specified date, we will treat information submitted in an application for certification as described in § 1068.11 after the date we issue the certificate.

(b) Except as otherwise provided in paragraph (d) of this section and §§ 2.201 through 2.208 and 2.301(c) and (d) of this chapter do not apply to data submitted under this part that EPA has determined through rulemaking to be entitled to confidential treatment. EPA shall treat that information as confidential in accordance with the provisions of § 2.211 of this chapter, subject to paragraph (d) of this section and § 2.209 of this chapter.

(b) Except as otherwise provided in paragraph (d) of this section, 40 CFR 2.201 through 2.208 and 2.301(c) and (d) do not apply to data submitted under this subpart that EPA has determined through rulemaking to be entitled to confidential treatment. EPA shall treat that information as confidential in accordance with the provisions of 40 CFR 2.211, subject to paragraph (d) of this section and 40 CFR 2.209.

(2) Except as otherwise provided in paragraph (k)(4) of this section, 40 CFR 2.201 through 2.208 and 2.301(c) and (d) do not apply to data submitted under this part that EPA has determined through rulemaking to be entitled to confidential treatment. EPA shall treat that information as confidential in accordance with the provisions of 40 CFR 2.211, subject to paragraph (h)(4) of this section and 40 CFR 2.209.

(b) Except as otherwise provided in paragraph (d) of this section and §§ 2.201 through 2.208 and 2.301(c) and (d) of this chapter do not apply to data submitted under this part that EPA has determined through rulemaking to be entitled to confidential treatment. EPA shall treat that information as confidential in accordance with the provisions of § 2.211 of this chapter, subject to paragraph (d) of this section and § 2.209 of this chapter.

(b) Except as otherwise provided in paragraph (d) of this section, 40 CFR 2.201 through 2.208 and 2.301(c) and (d) do not apply to data submitted under this subpart that EPA has determined through rulemaking to be entitled to confidential treatment. EPA shall treat that information as confidential in accordance with the provisions of 40 CFR 2.211, subject to paragraph (d) of this section and 40 CFR 2.209.

(2) Except as otherwise provided in paragraph (k)(4) of this section, 40 CFR 2.201 through 2.208 and 2.301(c) and (d) do not apply to data submitted under this part that EPA has determined through rulemaking to be entitled to confidential treatment. EPA shall treat that information as confidential in accordance with the provisions of 40 CFR 2.211, subject to paragraph (h)(4) of this section and 40 CFR 2.209.

(7) Notices to affected businesses under §§ 2.301(g) and 2.301(h) and analogous provisions in §§ 2.302, 2.303, 2.304, 2.305, 2.306, 2.307, and 2.308; and

(2) -(4) The provisions of § 2.301(g) (2), (3), and (4) are incorporated by reference as paragraphs (g) (2), (3), and (4), respectively of this section.

(2) -(4) The provisions of § 2.301(g) (2), (3), and (4) are incorporated by reference as paragraphs (g) (2), (3), and (4), respectively, of this section.

(2) -(4) The provisions of § 2.301(g) (2), (3), (4) are incorporated by reference as paragraphs (g) (2), (3), and (4), respectively, of this section.

(2) -(4) The provisions of § 2.301(g) (2), (3), and (4) are incorporated by reference as paragraphs (g) (2), (3), and (4), respectively, of this section.

(2) The provisions of § 2.301(g)(2) through (4) apply to disclosures under this paragraph (e).

(2) The provisions of § 2.301(g)(2) are to be used as paragraph (g)(2) of this section.

(2) The provisions of § 2.301(g)(2) are to be used as paragraph (g)(2) of this section.

(2) The provisions of § 2.301(g)(2) through (4) apply to disclosures under this paragraph (e).

(3) The provisions of § 2.301(g)(3) are to be used as paragraph (g)(3) of this section.

(b) Whenever any information or data are required to be produced or examined in a hearing and any party makes a business confidentiality claim regarding such information under part 2 of this chapter, the availability of such information to the other parties or to the public shall be determined by EPA in accordance with part 2 of this chapter, including specifically the procedures and principles set forth in § 2.30l(g)(3) and (g)(4) of this chapter. The presiding officer shall make the determinations with respect to the matters referred to in § 2.301(g)(3) and (g)(4) to the extent provided, and shall take such steps as are necessary for the protection of information entitled to confidential treatment or otherwise exempt from public disclosure, including issuance of protective orders to parties or taking testimony in a closed hearing.

(2) The provisions of § 2.301(g)(2) through (4) apply to disclosures under this paragraph (e).

(4) The provisions of § 2.301(g)(4) are to be used as paragraph (g)(3) of this section.

(b) Whenever any information or data are required to be produced or examined in a hearing and any party makes a business confidentiality claim regarding such information under part 2 of this chapter, the availability of such information to the other parties or to the public shall be determined by EPA in accordance with part 2 of this chapter, including specifically the procedures and principles set forth in § 2.30l(g)(3) and (g)(4) of this chapter. The presiding officer shall make the determinations with respect to the matters referred to in § 2.301(g)(3) and (g)(4) to the extent provided, and shall take such steps as are necessary for the protection of information entitled to confidential treatment or otherwise exempt from public disclosure, including issuance of protective orders to parties or taking testimony in a closed hearing.

(d) Each contractor or subcontractor with the United States Government, and each employee of such contractor or subcontractor, who is furnished business information by EPA under § 2.301(h), § 2.302(h), § 2.304(h), § 2.305(h), § 2.306(j), § 2.307(h), § 2.308(i), or § 2.310(h) shall use or disclose that information only as permitted by the contract or subcontract under which the information was furnished. Contractors or subcontractors shall take steps to properly safeguard business information including following any security procedures for handling and safeguarding business information which are contained in any manuals, procedures, regulations, or guidelines provided by EPA. Any violation of this paragraph shall constitute grounds for suspension or debarment of the contractor or subcontractor in question. A willful violation of this paragraph may result in criminal prosecution.

(7) Notices to affected businesses under §§ 2.301(g) and 2.301(h) and analogous provisions in §§ 2.302, 2.303, 2.304, 2.305, 2.306, 2.307, and 2.308; and

(2) -(3) The provisions of § 2.301(h) (2) and (3) are incorporated by reference as paragraphs (h) (2) and (3), respectively, of this section.

(2) -(3) The provisions of § 2.301(h) (2) and (3) are incorporated by reference as paragraphs (h) (2) and (3), respectively, of this section.

(2) -(3) The provisions of § 2.301(h) (2) and (3) are incorporated by reference as paragraphs (h) (2) and (3), respectively, of this section.

(3) Information to which this section applies may be disclosed (notwithstanding the fact that it otherwise might be entitled to confidential treatment under this subpart) to a person under contract to EPA to perform work for EPA in connection with the Act or regulations which implement the Act, if the EPA program office managing the contract first determines in writing that such disclosure is necessary in order that the contractor may carry out the work required by the contract. Any such disclosure to a contractor shall be made only in accordance with the procedure and requirements of § 2.301(h)(2) (ii) through (iv).

(2) Information to which this section applies may be disclosed (notwithstanding the fact that it otherwise might be entitled to confidential treatment under this subpart) to a person under contract to EPA to perform work for EPA in connection with the Act, with the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, or regulations which implement either such Act, if the EPA program office managing the contract first determines in writing that such disclosure is necessary in order that the contractor may carry out the work required by the contract. Any such disclosure to a contractor shall be made only in accordance with the procedures and requirements of § 2.301(h)(2) (ii) through (iv).

(2) The provisions of § 2.301(h)(2) are to be used as paragraph (h)(2) of this section.

(a) The Presiding Officer shall admit all evidence which is not irrelevant, immaterial, unduly repetitious, or otherwise unreliable or of little probative value, except that evidence which would be excluded in the Federal courts under Rule 408 of the Federal Rules of Evidence (28 U.S.C. appendix) is not admissible. In the presentation, admission, disposition, and use of evidence, the Presiding Officer shall follow the provisions regarding confidential business information of 40 CFR part 2, subpart B for CERCLA. The commercial or trade secret status of any information shall not, however, preclude its being introduced into evidence. The Presiding Officer may make such orders as may be necessary to consider such evidence in camera, including the preparation of a supplemental final order to address questions of law or fact which arise out of that portion of the evidence which is confidential or which includes trade secrets. For the purpose of recording the hearing, the court reporter shall be considered “a person under contract or subcontract to EPA to perform work for EPA in connection with the Act or regulations which implement the Act” pursuant to 40 CFR 2.301(h)(2); unless the affected business, as defined in 40 CFR 2.201(d), agrees to some other procedures approved by the Presiding Officer.

(2) The provisions of § 2.301(h)(2)(ii) through (iv) apply to disclosures under paragraph this (f).

(2) The provisions of § 2.301(h)(2)(ii) through (iv) apply to disclosures under paragraph this (f).

(2) The provisions of § 2.301(h)(2)(ii) through (iv) apply to disclosures under paragraph this (f).

(3) The provisions of § 2.301(h)(3) are to be used as paragraph (h)(3) of this section.

(b) If you send us information without claiming it is confidential, we may make it available to the public without further notice to you, as described in 40 CFR 2.301(j).

(5) The confidentiality determinations in this section and in the standard-setting parts may be changed through the processes described in 40 CFR 2.301(j)(4).

(c) The following categories of information are subject to the process for confidentiality determinations in 40 CFR part 2 as described in 40 CFR 2.301(j)(5):

(6) For example, this applies for any projections of emission credits for the coming model year or determinations of the number of required repair facilities that are based on projected production volumes.

(iii) Emission measurements you use to compare procedures or demonstrate that the procedures are appropriate.

(ii) Meeting bond requirements, including aggregate U.S. asset holdings, financial details regarding specific assets, whether the manufacturer or importer obtains a bond, and copies of bond policies.

(10) Procedures that apply based on your request to test engines/equipment differently than we specify in the regulation. This applies for special and alternative test procedures. This also applies, for example, if we approve a broader or narrower zone of engine operation for not-to-exceed testing.

(13) Information related to possible defects that are subject to further investigation (not confirmed defects).