[Federal Register Volume 85, Number 143 (Friday, July 24, 2020)]
[Rules and Regulations]
[Pages 44770-44772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15139]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 350 and 355

[EPA-HQ-SFUND-1988-0002, EPA-HQ-SFUND-1998-0002; FRL-10012-00-OLEM]


Emergency Planning and Community Right-to-Know Regulations: Trade 
Secrecy Claims and Emergency Planning Notification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; technical amendment.

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

SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency) 
is issuing a technical amendment to update the program websites for 
trade secrecy regulations. This action amends the regulations to remove 
the outdated substantiation form for trade secrecy claims from the Code 
of Federal Regulations. The most current substantiation form is posted 
on EPA program websites. The Agency is also including clarification 
within a note in the regulations for state coordination of emergency 
response.

DATES: This final rule is effective on July 24, 2020.

ADDRESSES: EPA has established two dockets for this action under Docket 
ID No. EPA-HQ-SFUND-1988-0002 and EPA-HQ-SFUND-1998-0002. All documents 
in the docket are listed on the www.regulations.gov website. 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, is not placed on 
the internet and will be publicly available only in hard copy form. 
Publicly available docket materials are

[[Page 44771]]

available electronically through www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mark Douglas, U.S. Environmental 
Protection Agency, Office of Emergency Management, (MC: 5104A), 1200 
Pennsylvania Avenue NW, Washington, DC 20460; 202-564-5572; 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    Entities that may be affected by this action are those facilities 
subject to sections 302, 303, 304, 311, 312, 313, 325, 327, 328, and 
329 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 
specifically, entities that file trade secrecy claims for chemical 
identity and/or report emergency release notifications under the 
aforementioned sections.

II. What does this correction do?

    This technical amendment is being issued to correct the program 
website for the EPCRA Trade Secrecy Claims in 40 CFR 350.7, 350.16, and 
350.27. EPA published an amendment in the Federal Register on November 
14, 2003 (68 FR 64719) similarly correcting program websites. That 
document also discusses the intent of removing the Trade Secret 
substantiation form (OMB control number 2050-0078) and instructions 
from 40 CFR 350.27 and directing the public to the program websites to 
access the current version. Furthermore, the form requires Office of 
Management and Budget approval every three years, but Sec.  350.27 
still reflects a form that expired in 1990. The 2003 amendment 
inadvertently omitted the instructions to update CFR part 350 to remove 
the form. This technical amendment is being issued to amend the final 
rule by revising Sec.  350.27 to direct the public to the current 
version of the form and instructions on the program websites.
    This technical amendment is also being issued to revise a note in 
40 CFR 355.41 to denote potential SERC specific formats in the 
reporting requirements. On November 3, 2008, EPA published an amendment 
in the Federal Register (73 FR 65452) updating 40 CFR part 355. This 
action further clarifies a note at Sec.  355.41.

III. Rulemaking Procedures and Findings of Good Cause

    Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(3)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a final rule without 
providing notice and an opportunity for public comment. EPA has 
determined that there is good cause for making this technical amendment 
final without prior proposal and opportunity for comment, because such 
notice and opportunity for comment is unnecessary for the following two 
reasons. First, this action is merely correcting the regulatory text to 
reflect the removal of a form, where such removal was intended in a 
previously published final rule that went through notice and public 
comment procedures, but in which EPA inadvertently neglected to include 
the necessary amendatory instruction to revise the regulatory text. 
Second, this action is a minor, non-substantive technical correction 
since it involves removal of a duplicative and outdated form. EPA finds 
that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

IV. Effective Date

    Section 553(d)(3) of the APA, 5 U.S.C. 553(d), provides that final 
rules shall not become effective until 30 days after publication in the 
Federal Register ``except . . . as otherwise provided by the agency for 
good cause'' The purpose of this provision is to ``give affected 
parties a reasonable time to adjust their behavior before the final 
rule takes effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 
620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 
F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). Thus, in 
determining whether good cause exists to waive the 30-day delay, an 
agency should ``balance the necessity for immediate implementation 
against principles of fundamental fairness which require that all 
affected persons be afforded a reasonable amount of time to prepare for 
the effective date of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA 
has determined that there is good cause for making this final rule 
effective immediately because it merely removes an old Trade Secret 
substantiation form and directs the public to the program websites to 
access the most current version. For this reason, the agency finds that 
good cause exists under APA section 553(d)(3) to make this rule 
effective immediately upon publication.

V. Do any of the Statutory and Executive Order reviews apply to this 
action?

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is 
not a ``significant regulatory action'' and is therefore not subject to 
the Office of Management and Budget (OMB) review. Additionally, this 
action is not an Executive Order 13771 regulatory action because this 
action is not significant under Executive Order 12866. Because this 
action is not subject to notice and comment requirements under the 
Administrative Procedure Act or any other statute, it is not subject to 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or Sections 202 
and 205 of the Unfunded Mandates Reform Act (2 U.S.C. 1531-1538). In 
addition, this action does not significantly or uniquely affect small 
governments. This action does not create new binding legal requirements 
that substantially and directly affect Tribes under Executive Order 
13175 (65 FR 67249, November 9, 2000). This action does not have 
significant Federalism implications under Executive Order 13132 (64 FR 
43255, August 10, 1999). Because this final rule has been exempted from 
review under Executive Order 12866, this final rule is not subject to 
Executive Order 13211, entitled Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, 
May 22, 2001) or Executive Order 13045, entitled Protection of Children 
from Environmental Health Risks and Safety Risks (62 FR 19885, April 
23, 1997). This final rule does not contain any information collections 
subject to OMB approval under the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501 et seq., nor does it require any special considerations 
under Executive Order 12898, entitled Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). This action does not 
involve technical standards; thus, the requirements of Section 12(d) of 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note) do not apply.
    This action is subject to the Congressional Review Act (CRA), and 
the EPA will submit a rule report to each House of Congress and to the 
Comptroller General of the United States. The CRA allows the issuing 
agency to make a rule effective sooner than otherwise provided by the 
CRA if the agency makes a good cause finding that notice and comment 
rulemaking procedures are impracticable, unnecessary or contrary to the 
public interest (5 U.S.C. 808(2)). The EPA has made a good cause 
finding for this rule as discussed in Section III of the preamble, 
including the basis for that finding.

[[Page 44772]]

List of Subjects

40 CFR Part 350

    Environmental protection, Confidential business information, 
Reporting and recordkeeping requirements.

 40 CFR Part 355

    Environmental protection, Reporting and recordkeeping requirements.

    Dated: July 7, 2020.
Peter Wright,
Assistant Administrator, Office of Land and Emergency Management.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 350--TRADE SECRECY CLAIMS FOR EMERGENCY PLANNING AND COMMUNITY 
RIGHT-TO-KNOW INFORMATION: AND TRADE SECRET DISCLOSURES TO HEALTH 
PROFESSIONALS

0
1. The authority citation for Part 350 continues to read as follows:

    Authority: 42 U.S.C. 11042, 11043, and 11048 Pub. L. 99-499, 100 
Stat. 1747.


0
2. Amend Sec.  350.7 by revising paragraphs (a) introductory text, (b), 
(c) and (d)(2) to read as follows:


Sec.  350.7   Substantiating claims of trade secrecy.

    (a) Claims of trade secrecy must be substantiated by providing a 
specific answer including, where applicable, specific facts, to each of 
the following questions with submission to which the trade secrecy 
claim pertains. Submitters must answer these questions on the form 
entitled ``Substantiation to Accompany Claims of Trade Secrecy.'' The 
form and instructions are posted on the EPA program websites, http://www.epa.gov/epcra and http://www.epa.gov/tri/rfi.
* * * * *
    (b) The answers to the substantiation questions listed in paragraph 
(a) of this section are to be submitted on the form entitled 
``Substantiation to Accompany Claims of Trade Secrecy'' and included 
with a submitter's trade secret claim. The form is posted on the EPA 
program websites, http://www.epa.gov/epcra and http://www.epa.gov/tri/rfi,
    (c) An owner, operator, or senior official with management 
responsibility shall sign the certification at the end of the form 
entitled ``Substantiation to Accompany Claims of Trade Secrecy,'' which 
is posted on the EPA program websites, http://www.epa.gov/epcra and 
http://www.epa.gov/tri/rfi. The certification in both the sanitized and 
unsanitized versions of the substantiation must bear an original 
signature.
    (d) * * *
    (2) An owner, operator, or senior official with management 
responsibility shall sign the certification stating that those portions 
of the substantiation claimed as confidential would, if disclosed, 
reveal the chemical identity being claimed as a trade secret, or would 
reveal other confidential business or trade secret information. This 
certification is combined on the substantiation form found on EPA 
program websites, http://www.epa.gov/epcra and http://www.epa.gov/tri/rfi, with the certification described in paragraph (c) of this section.
* * * * *

0
3. Revise Sec.  350.16 to read as follows:


Sec.  350.16   Address to send trade secrecy claims and petitions 
requesting disclosure.

    The address and location to send all claims of trade secrecy under 
sections 303(d)(2) and (d)(3), 311, 312, and 313 of Title III and all 
public petitions requesting disclosure of chemical identities claimed 
as trade secret are posted on the following EPA program websites, 
http://www.epa.gov/epcra and http://www.epa.gov/tri/rfi. Any subsequent 
changes to the address and location will be announced in Federal 
Register Notices as these changes occur. Also, the changes will be 
posted on these websites. Submitters may also contact the EPCRA, RMP & 
Oil Information Center at (800) 424-9346 or (703) 348-5070, https://www.epa.gov/epcra/forms/contact-us-about-emergency-planning-and-community-right-know-act-epcra to obtain this information.

0
4. Amend Sec.  350.27 by revising paragraph (a) and removing and 
reserving paragraph (b), including the form and instructions to the 
form, to read as follows:


Sec.  350.27  Substantiation form to accompany claims of trade secrecy, 
instructions to substantiation form.

    (a) The substantiation form to accompany claims of trade secrecy 
must be completed and submitted as required in Sec.  350.7(a). The form 
and instructions are posted on the Emergency Planning and Community 
Right-to-Know Act (EPCRA) website, http://www.epa.gov/epcra and the 
Toxics Release Inventory Program Division website, http://www.epa.gov/tri/rfi. Submitters may also contact the National Service Center for 
Environmental Publications (NSCEP) at (800) 490-9198 or https://www.epa.gov/nscep to obtain the form. The address to send all trade 
secrecy claims is posted on the following EPA Program websites, http://www.epa.gov/epcra and http://www.epa.gov/tri/rfi. This information can 
also be obtained by contacting the EPCRA, RMP & Oil Information Center 
at (800) 424-9346 or (703) 348-5070, or https://www.epa.gov/epcra/forms/contact-us-about-emergency-planning-and-community-right-know-act-epcra.
* * * * *

PART 355--EMERGENCY PLANNING AND NOTIFICATION

0
5. The authority citation for Part 355 continues to read as follows:

    Authority: Sections 302, 303, 304, 325, 327, 328, and 329 of the 
Emergency Planning and Community Right-to-know Act of 1986 (EPCRA) 
(42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049).


0
7. Amend the Note to Sec.  355.41 to read as follows:


Sec.  355.41  In what format should the information be submitted?

* * * * *

    Note 1 to Sec.  355.41: The SERC and LEPC may request a specific 
format for this information.

[FR Doc. 2020-15139 Filed 7-23-20; 8:45 am]
BILLING CODE 6560-50-P