(a) No EPA officer, employee, contractor, or subcontractor shall enter into any agreement with any affected business to keep business information confidential unless such agreement is consistent with this subpart. No EPA officer, employee, contractor, or subcontractor shall promise any affected business that business information will be kept confidential unless the promise is consistent with this subpart.
(b) If an EPA office has requested information from a State, local, or Federal agency and the agency refuses to furnish the information to EPA because the information is or may constitute confidential business information, the EPA office may enter into an agreement with the agency to keep the information confidential, notwithstanding the provisions of this subpart. However, no such agreement shall be made unless the General Counsel determines that the agreement is necessary and proper.
(c) To determine that an agreement proposed under paragraph (b) of this section is necessary, the General Counsel must find:
(1) The EPA office requesting the information needs the information to perform its functions;
(2) The agency will not furnish the information to EPA without an agreement by EPA to keep the information confidential; and
(3) Either:
(i) EPA has no statutory power to compel submission of the information directly from the affected business, or
(ii) While EPA has statutory power to compel submission of the information directly from the affected business, compelling submission of the information directly from the business would -
(A) Require time in excess of that available to the EPA office to perform its necessary work with the information,
(B) Duplicate information already collected by the other agency and overly burden the affected business, or
(C) Overly burden the resources of EPA.
(d) To determine that an agreement proposed under paragraph (b) of this section is proper, the General Counsel must find that the agreement states -
(1) The purpose for which the information is required by EPA;
(2) The conditions under which the agency will furnish the information to EPA;
(3) The information subject to the agreement;
(4) That the agreement does not cover information acquired by EPA from another source;
(5) The manner in which EPA will treat the information; and
(6) That EPA will treat the information in accordance with the agreement subject to an order of a Federal court to disclose the information.
(e) EPA will treat any information acquired pursuant to an agreement under paragraph (b) of this section in accordance with the procedures of this subpart except where the agreement specifies otherwise.
[43 FR 40001, Sept. 8, 1978]