89 FR 159 pgs. 66709-66710 - Class Determination 1-24: Confidentiality of Certain Business Information Concerning Contractors, Prospective Contractors, and Subcontractors
Type: NOTICEVolume: 89Number: 159Pages: 66709 - 66710
Pages: 66709, 66710Docket number: [EPA-HQ-OGC-2024-0296; FRL-12051-01-OGC]
FR document: [FR Doc. 2024-18351 Filed 8-15-24; 8:45 am]
Agency: Environmental Protection Agency
Official PDF Version: PDF Version
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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.
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 duffey.dylan@epa.gov 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:
? 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.
? 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.
? 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.
? 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.
[top] • 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
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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