[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Notices]
[Pages 66709-66710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18351]



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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2024-0296; FRL-12051-01-OGC]


Class Determination 1-24: Confidentiality of Certain Business 
Information Concerning Contractors, Prospective Contractors, and 
Subcontractors

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is notifying 
interested persons of the issuance of a class determination concerning 
the confidentiality of certain classes of contractor- and prospective 
contractor-submitted information. The class determination announced in 
this notice--identified as Class Determination 1-24--updates and 
supersedes EPA's earlier Class Determination 1-95 covering certain 
contractor-submitted information. Class Determination 1-24 is being 
issued to bring EPA's approach to identifying and processing 
contractor-submitted CBI into alignment with the Supreme Court's 
decision in Food Mktg. Inst. v. Argus Leader Media and to update the 
classes of contractor-submitted CBI that are, and are not, 
presumptively entitled to confidential treatment. EPA's CBI regulations 
will still govern EPA's handling and processing of all CBI claims, 
including the contractor-submitted information covered by Class 
Determination 1-24, but will enable EPA offices to respond more quickly 
and efficiently to requests submitted under the Freedom of Information 
Act.

DATES: Class Determination 1-24 will take effect on August 23, 2024.

FOR FURTHER INFORMATION CONTACT: Dylan Duffey, Attorney-Advisor, Office 
of General Counsel, EPA, at [email protected] or (202) 564-3008.

SUPPLEMENTARY INFORMATION:

I. General Information

    EPA's Office of General Counsel (OGC) issues class determinations 
to describe the categories of business information that can be 
considered presumptively confidential or presumptively not 
confidential. EPA relies on class determinations to permit efficient 
processing of numerous Freedom of Information Act (FOIA) requests for 
the same types of confidential business information (CBI). On June 10, 
1995, OGC issued ``Class Determination 1-95 Confidentiality of Certain 
Business Information Submitted by Contractors and Prospective 
Contractors.'' Class Determination 1-24 updates and supersedes Class 
Determination 1-95 and brings EPA's approach to processing contractor-
submitted CBI into alignment with the Supreme Court's decision in Food 
Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 204 L. Ed. 2d 742 
(2019). In accordance with 40 CFR 2.207, Class Determination 1-24 is 
intended solely as guidance and is not a final agency action subject to 
judicial review. It does not impose legally binding requirements on the 
EPA, state or tribal regulators, or any other party. Nor does it 
contradict the Federal Acquisition Regulation's protection of 
contractor information at 48 CFR 3.104-4. An EPA office that is making 
a determination as to whether business information covered by this 
class determination may be entitled to confidential treatment should 
follow the procedures in 40 CFR part 2, subpart B, applying this class 
determination as guidance. As of the effective date of this notice, 
Class Determination 1-95 is officially superseded by Class 
Determination 1-24 and will no longer be used at EPA. The full text of 
Class Determination 1-24 can be found on the EPA web page titled 
``Guidance Documents Managed by the Office of General Counsel.''
    In summary, Class Determination 1-24 finds that the following class 
of information submitted by EPA contractors or prospective contractors 
is presumptively entitled to confidential treatment where the 
information is private or at least closely held, where the information 
is not otherwise publicly available, and where disclosure of the 
information is not otherwise required by statute or regulation:
     Information that would disclose a contractor's, 
subcontractor's, prospective contractor's, or prospective 
subcontractor's proposal that may include unit pricing, client 
information, marketing strategy, financial statements or structure, 
accounting methods, labor hourly rates, salaries, overhead costs, 
general and administrative costs, fees, profits, accounting methods, 
and potential plans to manage the project.
     Information that would disclose a contractor's, 
subcontractor's, prospective contractor's, or prospective 
subcontractor's proprietary processes, devices, software, or similar 
proprietary information submitted to the Agency.
     Contract deliverables that would reveal proprietary 
analytical methods, manufacturing processes, or algorithms.
    Conversely, the following class of information is presumptively not 
private, nor closely held and is therefore not entitled to confidential 
treatment under Class Determination 1-24. Unless this information is 
otherwise claimed as CBI in accordance with EPA's CBI regulations at 40 
CFR part 2, subpart B, EPA may release this information without further 
notice to the submitter:
     Information concerning the identity and scope of work of 
any government contracts or grants performed by the submitter pursuant 
to the awarded contract. This information is available to the public 
pursuant to the Federal Funding Accountability and Transparency Act, 
and through the Commerce Business Daily, the Federal Procurement Data 
System, and from specific government agencies.
     Information that the submitter has previously published or 
disclosed to the public, either in writing or verbally, regardless of 
the medium.
     Information in documents that are already publicly 
available, such as requests for proposals, other publicly available EPA 
documents, or published materials, whether in print or electronic.
     The following information is not entitled to confidential 
treatment after contract award unless the information could reasonably 
be used to reverse engineer information that is entitled to 
confidential treatment:
    [cir] The aggregate cost (total of all costs and fees) of an 
awarded contract to the government. The aggregate cost of awarded 
contract options to the government.
    [cir] Totals of labor effort expended, invoiced, or paid at any 
point during contract performance for work performed under the contract 
or for any discrete segment of such contract work.
    [cir] Totals of costs incurred, invoiced, or paid at any point 
during contract performance for work performed under the contract or 
for any discrete segment of such contract work.
    [cir] The aggregate of labor hours worked by all subcontractors and 
consultants and the aggregate of all costs incurred by them at any 
point during contract performance or for any discrete segment of such 
contract work.
     Information developed by the government, regardless of 
whether the information is subsequently contained in a document 
submitted to the Government by a contractor or prospective contractor.
     Names and business contact information of Agency 
contractors or subcontractors or their employees or consultants of any 
contractor or subcontractor, unless sufficient countervailing factors 
exist. This category reflects, among other things, the fact that in the 
course of routine interaction with contractors and

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subcontractors with the Agency, the names of employees are revealed and 
not kept confidential. Additionally, many employees and employers 
publicly post names and business contact information on the internet.

II. Does this action apply to me?

    This action is directed to all current and future EPA contractors 
and prospective contractors who submit information to the Agency after 
the effective date of this class determination, and it applies to 
information submitted both before and after a contract is awarded. 
Class Determination 1-24 does not apply to contractor or prospective 
contractor-submitted information that was in the Agency's possession 
prior to the effective date of this class determination. Additionally, 
by its express terms, Class Determination 1-24 does not apply to the 
following categories of contractor or prospective contractor 
submissions:
     For information submitted after this class determination's 
effective date, any information where ten years have passed after 
submission.
     Any information more than ten years old when submitted to 
EPA, regardless of submittal date.
     Except as otherwise provided, information submitted to EPA 
by or on behalf of any person or entity that is not an EPA contractor 
or subcontractor.
    Any contractor or prospective contractor-submitted information that 
falls outside of the scope of Class Determination 1-24 or to which 
Class Determination 1-24 does not apply will be handled in accordance 
with EPA's CBI regulations at 40 CFR part 2, subpart B.
    This Federal Register notice may be of relevance to current and 
future EPA contractors that submit information to the Agency in 
connection with their performance of a contract, or to future 
prospective contractors that submit proposals to Agency solicitations. 
If you have further questions regarding the applicability of this 
action to a party, please contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

III. How can I get copies of this document and other related 
information?

    Electronic Access. You may access this Federal Register document 
electronically from the Government Printing Office under the ``Federal 
Register'' listings. You may also access the full text of Class 
Determination 1-24 on the EPA web page titled ``Guidance Documents 
Managed by the Office of General Counsel.''

Jennifer Clark,
Associate General Counsel.
[FR Doc. 2024-18351 Filed 8-15-24; 8:45 am]
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