Notice2024-18351
Class Determination 1-24: Confidentiality of Certain Business Information Concerning Contractors, Prospective Contractors, and Subcontractors
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 16, 2024
Effective
August 23, 2024
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 159 (Friday, August 16, 2024)</title>
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[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Notices]
[Pages 66709-66710]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="/cdn-cgi/l/email-protection#5733223131322e79332e3b36391732273679303821"><span class="__cf_email__" data-cfemail="ec88998a8a8995c28895808d82ac899c8dc28b839a">[email protected]</span></a> 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:
<bullet> 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.
<bullet> 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.
<bullet> 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:
<bullet> 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.
<bullet> Information that the submitter has previously published or
disclosed to the public, either in writing or verbally, regardless of
the medium.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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
[[Page 66710]]
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:
<bullet> For information submitted after this class determination's
effective date, any information where ten years have passed after
submission.
<bullet> Any information more than ten years old when submitted to
EPA, regardless of submittal date.
<bullet> 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]
BILLING CODE 6560-50-P
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