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®: CRE Regulatory Action of the Week

EPA Safeguards Confidential Business Information

EPA has announced that a private contractor, Syracuse Research Corporation, will be given access to the confidential business information of private companies. (See 65 Fed. Reg. 11,777.) The companies are required to report the confidential information to EPA under the Toxic Substances Control Act ("TSCA") and the information is supposed to be analyzed by EPA subject to EPA's "TSCA Confidential Business Information Security Manual." EPA's Federal Register notices indicates that contractor's employees will be "briefed on appropriate security procedures" and required to sign nondisclosure agreements.

EPA has instituted an extensive system, reflected in the Security Manual, for tracking the whereabouts of private-sector documents containing CBI. As part of this system, virtually all users of CBI are required to acknowledge in writing that they have viewed a training video and that they understand that they are subject to criminal penalties and loss of employment for violating document security. CRE commends EPA for establishing and implementing such a comprehensive system.

CRE believes that there are two areas where further improvements may be worthy of consideration.

  1. Availability of Civil Penalties for Intentional Theft or Disclosure of CBI: TSCA imposes penalties of up to $5,000 and imprisonment for wrongful disclosures of TSCA CBI. In addition, employees involved in wrongful disclosures can be subject to loss of employment. Given the financial or outside employment incentives that may, in some unusual circumstances, induce the selling or other wrongful disclosure of confidential information, CRE questions whether TSCA and/or the Federal Torts Claims Act should be amended to enable the victims of theft or wrongful disclosure to seek meaningful compensatory and/or punitive damages from willful violators. (See Greenwood, Mark, "White Paper From Industry Coalition Over Information Programs," Daily Envir. Rpt. at E-12 (May 4, 1999).)
  2. Ability of Private-Sector Facilities and Entities to Monitor the Uses of Their Own Data: A specific facility or entity may, in some circumstances, suspect that data pertaining to it is being misused. EPA has indicated that in this situation the agency is sensitive to the company's concerns and works with the company to investigate the matter on a case-by-case basis. CRE questions whether specific and uniformly applied guidelines would be appropriate or helpful to determine when a specific facility or company should be entitled to have possible violations investigated.

CRE invites all interested parties to submit comments on these issues to CRE's Interactive Public Docket.

Click Here to read EPA Federal Register Notice

Please click below to submit comments to the CRE regarding the EPA safeguards concerning Confidential Business Information.
EPA Safeguards Confidential Business Information: Interactive Public Docket

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