[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Rules and Regulations]
[Pages 26579-26583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11239]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and 
Regulations  

[[Page 26579]]



DEPARTMENT OF ENERGY

10 CFR Parts 600, 603, 609, and 611

RIN 1990-AA36


Procedures for Submitting to the Department of Energy Trade 
Secrets and Commercial or Financial Information That Is Privileged or 
Confidential

AGENCY: Office of the General Counsel, Department of Energy (DOE).

ACTION: Final rule.

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

SUMMARY: DOE issues procedures to standardize across its various 
programs procedures for the submission and protection of trade secrets 
and commercial or financial information that is privileged or 
confidential, where such information is submitted by applicants for 
various forms of DOE assistance (including financial assistance such as 
grants, cooperative agreements, and technology investment agreements, 
as well as loans and loan guarantees). The procedures, established 
across DOE programs, are modeled after existing procedures DOE uses to 
process loan applications submitted to DOE's Advanced Technology 
Vehicles Manufacturing Incentive Program.

DATES: This rule is effective on June 8, 2011.

FOR FURTHER INFORMATION CONTACT: Daniel Cohen, Assistant General 
Counsel for Legislation, Regulation and Energy Efficiency, U.S. 
Department of Energy, 1000 Independence Avenue, SW., Washington, DC 
20585-0121. Telephone: (202) 586-9523. E-mail: [email protected]. 
Include RIN 1990-AA36 in the subject line of the message.

SUPPLEMENTARY INFORMATION: DOE provides assistance to eligible 
applicants through a number of different programs. This assistance can 
take the form of financial assistance (i.e., grants, cooperative 
agreements, and technology investment agreements), loan guarantees, and 
direct loans, among others. DOE has consistently sought to protect 
trade secrets and commercial or financial information that is 
privileged or confidential submitted by applicants for these forms of 
assistance, but the procedures required of applicants when submitting 
such information can vary. In today's final rule, DOE establishes 
procedures for the submission to DOE of trade secrets and commercial or 
financial information that is privileged or confidential meant to 
standardize DOE's procedures for processing and handling applicant 
submissions containing such information. The procedures are modeled 
after existing procedures DOE uses to process loan applications 
submitted to DOE's Advanced Technology Vehicles Manufacturing Incentive 
Program.
    DOE makes minor changes to the Notice of Restriction on Disclosure 
and Use of Data in 10 CFR 600.15(b)(1), as well as corresponding 
changes to 10 CFR 600.15(a) and 600.15(b)(2) and (3). These changes are 
intended to allow for cross reference from other portions of Subpart H 
(specifically, Parts 609--Loan Guarantees for Projects that Employ 
Innovative Technologies and 611--Advanced Technology Vehicles 
Manufacturer Assistance Program) while recognizing that Part 600 does 
not otherwise apply to loans and loan guarantees.
    DOE amends 10 CFR 600.15(b)(1) to require a party submitting 
information to DOE, at the time of submission, to identify and assert a 
claim of exemption regarding information it considers to be trade 
secrets or commercial or financial information that is privileged or 
confidential such that the information would be exempt from disclosure 
under the Freedom of Information Act (FOIA, 5 U.S.C. 552). This claim 
of exemption must be made by placing the following notice on the first 
page of the application or other document and specifying the page or 
pages to be restricted: ``Pages [----] of this document may contain 
trade secrets or commercial or financial information that is privileged 
or confidential and exempt from public disclosure. Such information 
shall be used or disclosed only for evaluation purposes or in 
accordance with a financial assistance or loan agreement between the 
submitter and the Government. The Government may use or disclose any 
information that is not appropriately marked or otherwise restricted, 
regardless of source.''
    To further protect trade secrets and commercial or financial 
information that is privileged or confidential, DOE also adds a 
requirement in section 600.15(b)(1) that each page containing such data 
must be specifically identified and marked with text that is similar to 
the following: ``May contain trade secrets or commercial or financial 
information that is privileged or confidential and exempt from public 
disclosure.'' In addition, each line or paragraph containing trade 
secrets or commercial or financial information that is privileged or 
confidential on the page or pages on which this statement appears must 
be marked with brackets or other clear identification, such as 
highlighting.
    DOE acknowledges that the marking procedures set forth above may 
not be feasible on unalterable forms submitted through Grants.gov. In 
such cases only, submitters must include in a cover letter or the 
project narrative a notice containing language substantially similar to 
the following: ``Forms [----] may contain trade secrets or commercial 
or financial information that is privileged or confidential and exempt 
from public disclosure. Such information shall be used or disclosed 
only for evaluation purposes or in accordance with a financial 
assistance or loan agreement between the submitter and the Government. 
The Government may use or disclose any information that is not 
appropriately marked or otherwise restricted, regardless of source.'' 
The cover letter or project narrative must also specify the particular 
information on such forms that the submitter believes to be trade 
secrets or commercial or financial information that is privileged or 
confidential.
    DOE also amends 10 CFR 603.850 to require that the markings affixed 
to data for technology investment agreements that may contain trade 
secrets or commercial or financial information that is privileged or 
confidential conform to the marking requirements of 10 CFR 600.15.
    In addition, DOE regulations implementing its loan guarantee 
program for projects that employ

[[Page 26580]]

innovative technologies under Title XVII of the Energy Policy Act of 
2005 (42 U.S.C. 16511-16514) now cross-reference 10 CFR 600.15. These 
regulations are set forth at 10 CFR Part 609. In today's final rule, 
DOE thus establishes the same marking requirements as described above 
for any information submitted through the Title XVII loan application 
process, including pre-applications, applications, and any additional 
information provided by loan applicants. Similarly, DOE regulations 
implementing its Advanced Technology Vehicles Manufacturing (ATVM) 
Incentive Program at 10 CFR Part 611 will also cross-reference 10 CFR 
600.15. DOE already applies to the ATVM program procedures virtually 
identical to those established in this notice. In this final rule, DOE 
establishes the marking requirements described above in the program's 
implementing regulations.
    DOE received no comments on its proposed rule and made no changes 
to the proposal in today's final rule.

Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a regulatory flexibility analysis for any rule that by 
law must be proposed for public comment, unless the agency certifies 
that the rule, if promulgated, will not have a significant economic 
impact on a substantial number of small entities. As required by 
Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking'' 67 FR 53461 (Aug. 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site (http://www.gc.doe.gov).
    DOE has reviewed today's rule under the Regulatory Flexibility Act 
and certifies that the rule will not have a significant impact on a 
substantial number of small entities. While DOE recognizes that some 
applicants for assistance may be small businesses according to SBA size 
standards, DOE believes that the impact on such applicants of the rule 
will not be significant. The rule does not change the information 
applicants are required to submit to apply for the various forms of DOE 
assistance. It merely instructs applicants how to mark information that 
they believe to be trade secrets or commercial or financial information 
that is privileged or confidential.

C. Review Under the Paperwork Reduction Act

    The information collection requirements for the various forms of 
assistance to which the marking requirements in this rule will apply 
have been approved under OMB Control Numbers 1910-0400 (Financial 
Assistance Regulations) and 1910-5134 (Title XVII loan guarantee 
program).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act

    In this rule, DOE establishes procedures for the submission of 
information relating to various forms of assistance, including grants, 
cooperative agreements, technology investment agreements, loans, and 
loan guarantees. DOE has determined that this rule falls into a class 
of actions that are categorically excluded from review under the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
DOE's implementing regulations at 10 CFR part 1021. Specifically, this 
rule is a procedural rule covered by Categorical Exclusion A6 under 10 
CFR Part 1021, subpart D, which applies to any rulemaking that is 
strictly procedural in nature. Accordingly, neither an environmental 
assessment nor an environmental impact statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have other federalism implications. The Executive Order requires 
agencies to examine the constitutional and statutory authority 
supporting any action that would limit the policymaking discretion of 
the States and to carefully assess the necessity for such actions. The 
Executive Order also requires agencies to have an accountable process 
to ensure meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications. On March 14, 2000, DOE published a statement of policy 
describing the intergovernmental consultation process it will follow in 
the development of such regulations. 65 FR 13735. DOE has considered 
today's final rule in accordance with Executive Order 13132 and its 
policy and determined that this rule setting forth requirements for the 
marking of trade secrets and commercial or financial information that 
is privileged or confidential will not preempt State law or have any 
federalism impacts. No further action is required by Executive Order 
13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' imposes on Federal agencies the general duty 
to adhere to the following requirements: (1) Eliminate drafting errors 
and ambiguity; (2) write regulations to minimize litigation; and (3) 
provide a clear legal standard for affected conduct rather than a 
general standard and promote simplification and burden reduction. 61 FR 
4729 (February 7, 1996). Section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that this rule meets the relevant 
standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. For proposed regulatory actions likely to result in a 
rule that may cause expenditures by State, local, and Tribal

[[Page 26581]]

governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish estimates of the resulting 
costs, benefits, and other effects on the national economy. (2 U.S.C. 
1532(a), (b).) UMRA also requires Federal agencies to develop an 
effective process to permit timely input by elected officers of State, 
local, and Tribal governments on a proposed ``significant 
intergovernmental mandate.'' In addition, UMRA requires an agency plan 
for giving notice and opportunity for timely input to small governments 
that may be affected before establishing a requirement that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. (62 FR 12820.) (This policy is also available at http://www.gc.doe.gov). Today's rule contains neither an intergovernmental 
mandate, nor a mandate that may result in the expenditure of $100 
million or more in any year, so these requirements do not apply.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule will not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights,'' 53 FR 8859 (March 18, 1988), that this regulation will not 
result in any takings which might require compensation under the Fifth 
Amendment to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed today's rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
at OMB a Statement of Energy Effects for any proposed significant 
energy action. A ``significant energy action'' is defined as any action 
by an agency that promulgates or is expected to lead to promulgation of 
a final rule, and that (1) is a significant regulatory action under 
Executive Order 12866 or any successor order; and (2) is likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    DOE has concluded that today's regulatory action, which establishes 
marking requirements for information submitted to DOE that the 
submitter believes to be trade secrets or commercial or financial 
information that is privileged or confidential, is not a significant 
energy action because the rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy, nor has 
it been designated as such by the Administrator at OIRA. Accordingly, 
DOE has not prepared a Statement of Energy Effects for the rule.

L. Review Under the Information Quality Bulletin for Peer Review

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy, issued its Final Information Quality 
Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). 
The Bulletin establishes that certain scientific information shall be 
peer reviewed by qualified specialists before it is disseminated by the 
Federal Government, including influential scientific information 
related to agency regulatory actions. The purpose of the bulletin is to 
enhance the quality and credibility of the Government's scientific 
information. DOE has determined that today's rule does not contain any 
influential or highly influential scientific information that would be 
subject to the peer review requirements of the Bulletin.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this rule.

List of Subjects in 10 CFR Parts 600, 603, 609, and 611

    Accounting, Administrative practice and procedure, Colleges and 
universities, Confidential business information, Energy, Government 
contracts, Grant programs, Hospitals, Indians, Intergovernmental 
relations, Loan programs, Lobbying, Nonprofit organizations, Penalties, 
Reporting and recordkeeping requirements.

    Issued in Washington, DC on May 2, 2011.
Daniel B. Poneman,
Deputy Secretary of Energy.

    For the reasons stated in the preamble, DOE amends Subchapter H of 
Chapter II of Title 10, Code of Federal Regulations, to read as set 
forth below:

PART 600--FINANICIAL ASSISTANCE RULES

0
1. The authority citation for Part 600 continues to read as follows:

    Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 50 
U.S.C. 2401 et seq., unless otherwise noted.


0
2. Section 600.15 is revised to read as follows:


Sec.  600.15  Authorized uses of information.

    (a) General. Information contained in applications shall be used 
only for evaluation purposes unless such information is generally 
available to the public or is already the property of the Government. 
The Trade Secrets Act, 18 U.S.C. 1905, prohibits the unauthorized 
disclosure by Federal employees of trade secret and confidential 
business information.
    (b) Treatment of application information. (1) An application or 
other document, including any unsolicited information, may include 
technical data and other data, including trade secrets and commercial 
or financial information that is privileged or confidential, which the 
applicant does not want disclosed to

[[Page 26582]]

the public or used by the Government for any purpose other than 
application evaluation.
    (i) To protect such data, the submitter must mark the cover sheet 
of the application or other document with the following Notice:

Notice of Restriction on Disclosure and Use of Data

Pages [----] of this document may contain trade secrets or 
commercial or financial information that is privileged or 
confidential and is exempt from public disclosure. Such information 
shall be used or disclosed only for evaluation purposes or in 
accordance with a financial assistance or loan agreement between the 
submitter and the Government. The Government may use or disclose any 
information that is not appropriately marked or otherwise 
restricted, regardless of source.

    (ii)(A) To further protect such data, except as otherwise provided 
in paragraph (b)(1)(iii) of this section, each page containing trade 
secrets or commercial or financial information that is privileged or 
confidential must be specifically identified and marked with text 
similar to the following:
    May contain trade secrets or commercial or financial information 
that is privileged or confidential and exempt from public disclosure.
    (B) In addition, each line or paragraph containing trade secrets or 
commercial or financial information that is privileged or confidential 
must be marked with brackets or other clear identification, such as 
highlighting.
    (iii) (A) In the case where a form for data submission is 
unalterable, such as certain forms submitted through Grants.gov, 
submitters must include in a cover letter or the project narrative a 
notice like the following:

Forms [----] may contain trade secrets or commercial or financial 
information that is privileged or confidential and exempt from 
public disclosure. Such information shall be used or disclosed only 
for evaluation purposes or in accordance with a financial assistance 
or loan agreement between the submitter and the Government. The 
Government may use or disclose any information that is not 
appropriately marked or otherwise restricted, regardless of source.

    (B) The cover letter or project narrative must also specify the 
particular information on such forms that the submitter believes 
contains trade secrets or commercial or financial information that is 
privileged or confidential.
    (2) Unless DOE specifies otherwise, DOE shall not refuse to 
consider an application or other document solely on the basis that the 
application or other document is restrictively marked in accordance 
with paragraph (b)(1) of this section.
    (3) Data (or abstracts of data) specifically marked in accordance 
with paragraph (b)(1) of this section shall be used by DOE or its 
designated representatives solely for the purpose of evaluating the 
proposal. The data so marked shall not be disclosed or used for any 
other purpose except to the extent provided in any resulting assistance 
agreement, or to the extent required by law, including the Freedom of 
Information Act (5 U.S.C. 552) (10 CFR Part 1004). The Government shall 
not be liable for disclosure or use of unmarked data and may use or 
disclose such data for any purpose.
    (4) This process enables DOE to follow the provisions of 10 CFR 
1004.11(d) in the event a Freedom of Information Act (5 U.S.C. 552) 
request is received for the data submitted, such that information not 
identified as subject to a claim of exemption may be released without 
obtaining the submitter's views under the process set forth in 10 CFR 
1004.11(c)

PART 603--TECHNOLOGY INVESTMENT AGREEMENTS

0
3. The authority citation for Part 603 continues to read as follows:

    Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 50 
U.S.C. 2401 et seq., unless otherwise noted.


0
4. Section 603.850 is revised to read as follows:


Sec.  603.850  Marking of data.

    To protect the recipient's interests in data, the TIA should 
require the recipient to mark any particular data that it wishes to 
protect from disclosure as specified in 10 CFR 600.15(b).

PART 609--LOAN GUARANTEES FOR PROJECTS THAT EMPLOY INNOVATIVE 
TECHNOLOGIES

0
5. The authority citation for Part 609 continues to read as follows:

    Authority: 42 U.S.C. 7254, 16511-16514.


0
6. Section 609.4 is amended by revising the introductory text to read 
as follows:


Sec.  609.4  Submission of Pre-Applications.

    In response to a solicitation requesting the submission of Pre-
Applications, either Project Sponsors or Applicants may submit Pre-
Applications to DOE. The information submitted in or in connection with 
Pre-Applications will be treated as provided in 10 CFR 600.15 and must 
be marked as provided in 10 CFR 600.15(b). Pre-Applications must meet 
all requirements specified in the solicitation and this part. At a 
minimum, each Pre-Application must contain all of the following:
* * * * *

0
7. Section 609.5 is amended by revising paragraph (d) to read as 
follows:


Sec.  609.5  Evaluation of Pre-Applications.

* * * * *
    (d) After the evaluation described in paragraph (c) of this 
section, DOE will determine if there is sufficient information in the 
Pre-Application to assess the technical and commercial viability of the 
proposed project and/or the financial capability of the Project Sponsor 
and to assess other aspects of the Pre-Application. DOE may ask for 
additional information from the Project Sponsor during the review 
process and may request one or more meetings with the Project Sponsor. 
Any additional information submitted will be treated as provided in 10 
CFR 600.15 and must be marked as provided in 10 CFR 600.15(b).
* * * * *

0
8. Section 609.6 is amended by revising paragraph (a) to read as 
follows:


Sec.  609.6  Submission of Applications.

    (a) In response to a solicitation or written invitation to submit 
an Application, an Applicant submitting an Application must meet all 
requirements and provide all information specified in the solicitation 
and/or invitation and this part. The information submitted in or in 
connection with Applications will be treated as provided in 10 CFR 
600.15 and must be marked as provided in 10 CFR 600.15(b).
* * * * *

0
9. Section 609.7 is amended by revising paragraph (c) to read as 
follows:


Sec.  609.7  Programmatic, technical and financial evaluation of 
Applications.

* * * * *
    (c) During the Application review process DOE may raise issues or 
concerns that were not raised during the Pre-Application review process 
where a Pre-Application was requested in the applicable solicitation. 
Any additional information submitted to DOE will be treated as provided 
in 10 CFR 600.15 and must be marked as provided in 10 CFR 600.15(b).
* * * * *

PART 611--ADVANCED TECHNOLOGY VEHICLES MANUFACTURER ASSISTANCE 
PROGRAM

0
10. The authority citation for Part 611 continues to read as follows:


[[Page 26583]]


    Authority: Pub. L. 110-140 (42 U.S.C. 17013), Pub. L. 110-329.

0
11. Section 611.101 is amended by revising the introductory text to 
read as follows:


Sec.  611.101  Application.

    The information and materials submitted in or in connection with 
applications will be treated as provided in 10 CFR 600.15 and must be 
marked as provided in 10 CFR 600.15(b). An application must include, at 
a minimum, the following information and materials:
* * * * *

0
12. Section 611.103 is amended by revising paragraph (a) to read as 
follows:


Sec.  611.103  Application evaluation.

    (a) Eligibility screening. Applications will be reviewed to 
determine whether the applicant is eligible, the information required 
under Sec.  611.101 is complete, and the proposed loan complies with 
applicable statutes and regulations. DOE can at any time reject an 
application, in whole or in part, that does not meet these 
requirements. Any additional information submitted to DOE will be 
treated as provided in 10 CFR 600.15 and must be marked as provided in 
10 CFR 600.15(b).
* * * * *
[FR Doc. 2011-11239 Filed 5-6-11; 8:45 am]
BILLING CODE 6450-01-P