Determinations issued under §§ 2.204 through 2.207 shall hold that business information is entitled to confidential treatment for the benefit of a particular business if—
(a) The business has asserted a business confidentiality claim which has not expired by its terms, nor been waived nor withdrawn;
(b) The business has satisfactorily shown that it has taken reasonable measures to protect the confidentiality of the information, and that it intends to continue to take such measures;
(c) The information is not, and has not been, reasonably obtainable without the business's consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding);
(d) No statute specifically requires disclosure of the information; and
(e) Either—
(1) The business has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business's competitive position; or
(2) The information is voluntarily submitted information (see § 2.201(i)), and its disclosure would be likely to impair the Government's ability to obtain necessary information in the future.
Notes of Decisions
Renewable Fuels Ass'n v. EPA, 948 F.3d 1206 (10th Cir. 2020).
“§ 552 (b)(4), which contains a disclosure exemption for privileged or confidential “trade secrets and commercial or financial information,” as well as 40 C.F.R. § 2.208 , which states that “business information is entitled to confidential treatment” if various requirements are…”
Nw. Coalition for Alternatives to Pesticides v. Browner, 965 F. Supp. 59 (D.D.C. 1997).
· cites it 2× “EPA’s response is a plea of necessity: that it cannot embark upon its own investigation in every case and that it must necessarily rely on the information manufacturers supply in support of their assertions of confidentiality.”
Nw. Coalition for Alternatives to Pesticides v. Env't Prot. Agency, 254 F. Supp. 2d 125 (D.D.C. 2003).
· cites it 5× “With respect to NCAP’s APA challenge to the agency’s regulation, 40 C.F.R. § 2.208 (c), defendant contends that the regulation does not conflict with FOIA and is justified by a need to “insure the efficient and effective operation of a government program.”
Nw. Coalition for Alternatives to Pesticides v. Browner, 941 F. Supp. 197 (D.D.C. 1996).
· cites it 2× “The first count alleges that EPA made its decision to withhold the requested information without properly applying the criteria established by its own regulations, 40 C.F.R. § 2.208 . This first count invokes the Administrative Procedure Act, 5 U.”
RSR Corp. v. Browner, 924 F. Supp. 504 (S.D.N.Y. 1996).
“is not eligible for confidential treatment” under 40 C.F.R. § 2.208 ). Therefore, the EPA’s decision is in accordance with law.”
Alcolac, Inc. v. Wagoner, 610 F. Supp. 745 (W.D. Mo. 1985).
· cites it 3× “See 40 C.F.R. § 2.208 . Failure to make the required showing on any criteria results in denial of the confidentiality claim.”
— 40 C.F.R. § 2.208(d) — 1 case
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