[Federal Register Volume 83, Number 39 (Tuesday, February 27, 2018)]
[Notices]
[Pages 8473-8476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03985]


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

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2018-0004; FRL-9974-57-OECA]


Inquiry To Learn Whether Businesses Assert Business 
Confidentiality Claims Regarding Waste Import and Export

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for comment.

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

SUMMARY: The Environmental Protection Agency (EPA) occasionally 
receives 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), the export and import of spent lead 
acid batteries (SLABs) from the United States, and the export and 
import of RCRA universal waste from/to the United States. 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. ``Affected businesses'' are 
businesses identified or referenced in the documents that were 
submitted to EPA by the submitting business which may have a right to 
assert a CBI claim concerning information that pertains to them and may 
do so in response to this notice. 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. This notice also serves to inform the public that based on the 
Confidentiality Determinations for Hazardous Waste Export and Import 
Documents, EPA-HQ-OLEM-2016-0492, published on December 26, 2017 
(Confidentiality Rule), this is the last time EPA will be publishing 
the Federal Register Notice ``Inquiry to Learn Whether Businesses 
Assert Business Confidentiality Claims.'' Effective June 26, 2018, the 
Confidentiality Rule applies a confidentiality determination such that 
no person can assert confidential business information (CBI) claims for 
documents related to the export, import, and transit of hazardous 
waste, including those hazardous waste managed under the alternate 
standards, and excluded cathode ray tubes (CRTs). Therefore, 
publication of this Federal Register notice will no longer be needed 
since ``affected businesses'' will no longer be able to claim CBI on 
any documents on which they are listed.

DATES: Comments must be received on or before March 29, 2018. 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-2018-0004, by one of the following methods:
     Email: [email protected].
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     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.

[[Page 8474]]

    Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-
2018-0004. 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 email. Instructions about how to submit comments 
claimed as CBI are given later in this notice.
    The http://www.regulations.gov 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 email comment directly to EPA without going through http://www.regulations.gov, your email 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; email address: [email protected].

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, during calendar year 2017 or 
before, under 40 CFR part 262, subparts E and H; (2) import of RCRA 
hazardous waste, during calendar year 2017 or before, under 40 CFR part 
262, subparts F and H; (3) transit of RCRA hazardous waste, during 
calendar year 2017 or before, under 40 CFR part 262, subpart H, through 
the United States and foreign countries; (4) export of cathode ray 
tubes, during calendar year 2017 or before, under 40 CFR part 261, 
subpart E; (5) export and import of non-crushed spent lead acid 
batteries with intact casings, during calendar year 2017 or before, 
under 40 CFR part 266 subpart G; (6) export and import of RCRA 
universal waste, during calendar year 2017 or before, under 40 CFR part 
273, subparts B, C, D, and F; and (7) submissions from transporters, 
during calendar year 2017 or before, 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 which occurred 
during calendar year 2017 or before, including receiving facility 
notices under 40 CFR 264.12(a)(1) and 265.12(a)(1) and import consent 
documentation under 40 CFR 264.71(a)3) and 265.71(a)(3).

I. General Information

    EPA has previously published notices similar to this one in the 
Federal Register, the latest one being at 82 FR 6506, January 19, 2017, 
that address issues similar to those raised by today's notice. The 
Agency did not receive any comments on the previous notices. Since the 
publication of the January 19, 2017, Federal Register notice, the 
Agency has continued to receive FOIA requests for documents and data 
contained in EPA's database related to hazardous waste exports and 
imports and exports of excluded CRTs.

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 ``receiving facilities'' or ``foreign 
receiving facilities,'' \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, during calendar year 2017 or 
before, 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\ 
``any subsequent communication withdrawing a prior consent or 
objection,'' \8\ ``responses that neither consent nor object,'' 
``exception reports,'' \9\ ``transit notifications,'' \10\ and 
``renotifications''; \11\ (2) documents related to the import of 
hazardous waste, during calendar year 2017 or before, 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, during 
calendar year 2017 or before, 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

[[Page 8475]]

U.S.; (4) documents related to the export of cathode ray tubes (CRTs), 
during calendar year 2017 or before, under 40 CFR part 261, subpart E, 
including but not limited to notifications of intent to export CRTs; 
(5) documents related to the export or import of non-crushed spent lead 
acid batteries (SLABs) with intact casings, during calendar year 2017 
or before, under 40 CFR part 266 subpart G, including but not limited 
to notifications of intent to export SLABs; (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 which occurred during calendar year 2017 
or before, including receiving facility notices under 40 CFR 
264.12(a)(1) and 265.12(a)(1) and import consent documentation under 40 
CFR 264.71(a)(3) and 265.71(a)(3); and (7) documents related to the 
export and import of RCRA ``universal waste'' \12\ 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 terms ``foreign receiving facility'' and ``receiving 
facility'' are defined, for different purposes, at 40 CFR 262.81.
    \4\ The term ``notification for export'' is described at 40 CFR 
262.83(b), and for import at 40 CFR 262.84(b).
    \5\ The term ``manifest'' is defined at 40 CFR 260.10.
    \6\ The term ``annual reports'' is described at 40 CFR 
262.83(g).
    \7\ The term ``EPA Acknowledgement of Consent'' is defined at 40 
CFR 262.81.
    \8\ The requirement to forward to the exporter ``any subsequent 
communication withdrawing a prior consent or objection'' is found at 
42 U.S.C. 6938(e)
    \9\ The term ``exception reports'' is described at 40 CFR 
262.83(h).
    \10\ The term ``transit notifications'' is described at 40 CFR 
262.83(b)(5).
    \11\ The term ``renotifications'' is described at 40 CFR 
262.83(b)(4).
    \12\ 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 business confidentiality claim.\13\ 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.
---------------------------------------------------------------------------

    \13\ 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 it 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.\14\
---------------------------------------------------------------------------

    \14\ 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 business 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 business confidentiality of the 
information at issue: The preliminary inquiry and the notice of 
opportunity to comment.
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 Sec.  2.204 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 business 
confidential treatment, and affording each business an opportunity to 
comment as to the reasons why it believes that the information deserves 
business 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 a 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 business

[[Page 8476]]

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 
business confidential treatment, please specify which portions of the 
information you consider business confidential. Information not 
specifically identified as subject to a business 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 business confidential? Note that as of June 26, 2018 the 
Confidentiality Rule takes effect applying confidentiality 
determinations such that no CBI claims may be asserted by any person 
with respect to any documents related to the export, import, and 
transit of hazardous waste and export of excluded CRTs.
    2. Information submitted to EPA becomes stale over time. Why should 
the information you claim as business 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 business 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 business 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 
business confidentiality of the information? If so, please attach a 
copy of the determination.
    6. For each category of information claimed as business 
confidential, explain with specificity why and how 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 
business 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 business confidential, you must 
mark the response ``BUSINESS 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 business confidential, it may be 
made available to the requestor without further notice to you.

III. Publication of the Confidentiality Determinations for Hazardous 
Waste Export and Import Documents Final Rule and Its Effect on This 
Notice

    The Confidentiality Determinations for Hazardous Waste Export and 
Import Documents Final Rule, EPA-HQ-OLEM-2016-0492, published on 
December 26, 2017 (``Confidentiality Rule'') and effective on June 26, 
2018, finalizes the application of confidentiality determinations such 
that no CBI claims may be asserted by any person with respect to any 
documents related to the export, import, and transit of hazardous waste 
and export of excluded CRTs, including all documents listed in this 
Notice in section II, above. Therefore, further publications of this 
Federal Register Notice ``Inquiry to Learn Whether Businesses Assert 
Business Confidentiality Claims'' will no longer be needed, after 
today. Today's Notice is the last and final publication of this Notice.

IV. 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 email. 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.
     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: February 12, 2018.
Robert Tomiak,
Director, Office of Federal Activities.
[FR Doc. 2018-03985 Filed 2-26-18; 8:45 am]
 BILLING CODE 6560-50-P