[Federal Register: November 5, 2002 (Volume 67, Number 214)]
[Rules and Regulations]
[Page 67303-67313]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05no02-4]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 2
[OEI-2002-0005; FRL-7404-4]
RIN 2025-AA04
Revised Freedom of Information Act Regulations
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: This document revises subpart A of the Environmental
Protection Agency (EPA or Agency) regulations implementing the Freedom
of Information Act (FOIA). EPA is streamlining and condensing its
regulations, in accordance with the principles of the National
Performance Review, and is using simpler language whenever possible. In
addition, the regulations contain new provisions implementing the
Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) and
update cost figures for calculating and charging fees.
EFFECTIVE DATE: November 5, 2002.
FOR FURTHER INFORMATION CONTACT: Betty A. Lopez, Records, Privacy and
[[Page 67304]]
FOIA Branch, Collection Strategies Division, Office of Information
Collection, Office of Environmental Information (OEI), EPA, 1200
Pennsylvania Ave, NW. (2822T), Washington, DC 20460. Phone, (202) 566-
1667; Fax, (202) 566-2147. e-mail, hq.foia@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How Can I Get Copies Of This Document and Other Related Information
?
1. Docket. EPA has established an official public docket for this
action under Docket ID No.OEI-2002-0005. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the EPA Docket Center, Public Reading Room, Room B102, EPA West
Building, 1301 Constitution Avenue, NW., Washington, DC. This Docket
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The Public Reading Room telephone number is
(202) 566-1744.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified in Unit I.A 1.
Once in the system, select ``search,'' then key in the appropriate
docket identification number.
II. Background Information
On April 12, 2000, the EPA published a proposed rule to revise 40
CFR part 2, subpart A, and add new provisions implementing the
Electronic Freedom of Information Act Amendments of 1996, Public Law
104-231. See 65 FR 19703, April 12, 2000. Interested persons were
afforded an opportunity to participate in the rulemaking through
submission of written comments on the proposed rule. The Agency
received eight comments on its proposed rule. The Agency has adopted
several of the suggested changes made by the commenters and has also
made other revisions to its proposed rule for clarity.
New provisions implementing the suggested changes made by the
commenters are found at Sec. 2.100(a), Sec. 2.101(a), Sec. 2.101(c)
(electronic availability of records), Sec. 2.102(a)--Sec. 2.102(d)
(process for requesting records), Sec. 2.103 (responsibility for
responding for requests), Sec. 2.104(a) (deadline for response), Sec.
2.104(b) (timing of responses, acknowledgment ), Sec. 2.104(c)
(multitrack processing), Sec. 2.104(d) (unusual circumstances), Sec.
2.104(e) (expedited processing), Sec. 2.104(f) (annotation of
applicable exemption), Sec. 2.104(h) (denial of records), Sec. 2.104
(i) (denial of fee waivers), Sec. 2.104(j)(2) (appeal of Inspector
General determinations), Sec. 2.104(j)(4) (closing of appeal if
litigation initiated), Sec. 2.104(k) (exhaustion of administrative
appeal rights), Sec. 2.105 (exemption categories), Sec. 2.107(b)(3)
(format of disclosure), and Sec. 2.107(b)(8) (searches for electronic
records). Revisions to the Agency's fee schedule are found at
Sec. Sec. 2.107(c) and (d).
Comments
The Agency received a total of eight comments from the following: a
nonprofit group that regularly uses the FOIA; an association that
represents electric utilities, international affiliates, and industry
associates; a manufacturing and services company; a law firm on behalf
of a manufacturing company; a law firm on behalf of an ad hoc group of
electric utilities and trade associations; a citizen; an association
that represents cattle feeders and family ranchers; and the EPA Office
of Inspector General.
In some instances, commenters suggested particular changes to the
proposed rule. Several of the suggested changes have been accepted and
incorporated into the Agency's final rule. For example, several
commenters suggested the rule should list the FOIA statutory exemptions
and refer to subpart B of these regulations to further address the
handling of confidential business information. The Agency agrees and
has modified Sec. 2.100(a) to include a reference to subpart B of
these regulations and has listed the statutory exemptions at Sec.
2.105.
The Agency also agrees with one commenter's suggestion to include
the e-mail addresses of the Agency's Freedom of Information (FOI)
Offices, a reference to the Agency's online forms for filing FOIA
requests, and clarification that a FOIA request must be in writing and
may be submitted by mail, facsimile (fax), or electronically.
Accordingly, the Agency has revised Sec. 2.101(a) to include the e-
mail addresses and the last sentence of Sec. 2.102(a) recommending
that envelopes, fax cover sheets, or e-mail subject lines be marked,
``Freedom of Information Act Request.'' Since telephone and fax numbers
are subject to change, the Agency has not included the numbers in the
final rule. Current telephone and fax numbers may be obtained from the
Agency's web site.
One commenter suggested the deletion of the phrase ``created by
EPA'' in Sec. 2.101(c) and rescission of an allegedly erroneous
interpretation of the statutory phrase ``created on or after November
1, 1996.'' The Agency disagrees with the commenter and believes that
these phrases are in accordance with the plain language of the statute.
The Agency agrees with one commenter's suggestion to revise Sec.
2.102(c) to match the language of FOIA at 5 U.S.C. 552(a)(3)(A) on what
constitutes a reasonable request. Accordingly, the Agency has modified
Sec. 2.102(c) concerning the description of records sought.
One commenter suggested the Agency amend Sec. 2.103(a) to provide
that EPA will review all responsive records ``in its possession as of
the date the FOI Office begins processing the request.'' The Agency
disagrees with the suggestion but has modified Sec. 2.103(a) to
clarify that only those records in EPA's possession as of the date the
FOIA request was received in the appropriate FOI Office will be
considered within the scope of the request.
Further, the Agency agrees with the suggestion of two commenters
that Sec. 2.103(c) be revised to set forth the standard EPA will use
to decide whether to refer a request to another Federal agency.
Accordingly, Sec. 2.103(c) has been revised to state that where
records responsive to the request originated with another Federal
agency, EPA will either refer the request to the other agency or, after
consultation, respond to the request itself. In addition, whenever all
or any part of a request has been transferred to another agency for
response, EPA will notify the requestor.
[[Page 67305]]
Three commenters suggested that the language in Sec. Sec. 2.104(b)
and (k) regarding proposed time limits does not comply with the time
limits prescribed by FOIA at 5 U.S.C. 552(a)(6)(A)(i) and (ii), which
provide that an agency must always respond to an initial FOIA request
within 20 working days and to an appeal within 20 working days. The
commenters recommended that Sec. 2.104(b) be rewritten to delete the
language ``[c]omponents ordinarily will respond to requests no later
than twenty (20) working days from the date the request is received.''
Similarly, the commenters recommended that Sec. 2.104(k) be rewritten
to delete the language ``[t]he decision on an appeal will be made
normally in writing, within 20 working days of its receipt.'' The
Agency has modified Sec. 2.104(b) to clarify that unusual
circumstances may provide for a response outside the 20 working day
statutory time limit. Also, Sec. 2.104(k) has been modified by
removing any reference to time limits. Moreover, Sec. 2.104(l) has
been modified to clarify that judicial action may be taken should EPA
not respond to an appeal within the statutory 20 working day time
limit.
The Agency agrees with the suggestion of two commenters to change
Sec. 2.104(c) to comport with the requirements of FOIA at 5 U.S.C.
552(a)(6)(C)(i) concerning when requesters may be deemed to have
exhausted their administrative remedies. Accordingly, the Agency has
modified Sec. 2.104(b) to provide notice that requesters have a right
to seek immediate judicial review when the Agency fails to respond to a
request within the statutory 20 working day period or any authorized
extension of time.
Three commenters suggested that proposed Sec. 2.104(d) provides no
standards to guide the Agency when distinguishing between simple and
complex requests based on the amount of work or time (or both) expended
for processing a request. The Agency believes that the current
language, stating that the amount of work or time (or both) to process
a request, as well as informing requesters that they have the
opportunity to limit the scope of their requests in order to qualify
for faster processing, directly comports with the statutory language
and therefore it declines to revise Sec. 2.104(d).
One commenter suggests that the ``as soon as practicable'' language
in proposed Sec. 2.104(e) should be changed to provide that the Agency
shall notify a requester in writing, ``within 20 days of the date the
request is received'' of the unusual circumstances that warrant delay
and of the extended date for response. The commenter also suggests that
the Agency should incorporate the statutory definition of ``unusual
circumstances'' to avoid any confusion. In response to the commenter's
suggestions, the Agency has inserted the phrase ``as defined in the
FOIA'' into this provision to alert requesters to the statutory basis
of the definition of the term ``unusual circumstances,'' although we
have retained the proposed language in Sec. 2.104(e) regarding
notification.
Two commenters suggested changes to Sec. 2.104(f) concerning
expedited processing. Specifically, one commenter recommended that the
Agency use the multitrack authority to expedite requests that are
likely to be the subject of multiple requests. Another commenter
suggested that the expedited processing provision is too narrow and
should be rewritten so that it guarantees expedited processing to any
requester who ``demonstrates a compelling need'' for the requested
records. The Agency declines to adopt the first comment because it
believes that it is implicit in the current language of Sec. 2.104(f)
that those requests being given expedited processing will receive
immediate priority. Moreover, the current language of Sec. 2.104(l)
clearly states that when a requester meets the criteria set out in the
regulation for establishing a compelling need, expedited processing
will be granted. Accordingly, a ``guarantee of expedited processing''
is unnecessary and the Agency declines to adopt the second comment.
Three commenters suggested that the proposal retain the language
for listing withheld records as it appears in existing 40 CFR 2.113.
The Agency agrees and has revised Sec. 2.104(i)(2) to include the
language for identifying records being withheld.
The EPA Office of Inspector General requested that the rule be
revised to delegate authority to the Counsel to the Inspector General
to respond to appeals of denials of requests for Office of Inspector
General records. The Office of Inspector General commented that appeals
of denials of access to Office of Inspector General records are
currently handled by EPA's General Counsel and, in its view, Inspector
General independence requires that the Office of Inspector General
maintain full responsibility for, and custody and control over, all
Office of Inspector General records. The Agency agrees and has added
Sec. 2.104(j)(2) to authorize the Counsel to the Inspector General to
act on appeals of denials of requests for Office of Inspector General
records, unless the Counsel to the Inspector General has signed the
adverse initial determination, in which case the General Counsel, or
their designee, would respond to the appeal.
One commenter suggested that the Agency should eliminate proposed
Sec. 2.104(j)(3), which stated that the Agency would take no further
action on an appeal if the request becomes a matter of FOIA litigation,
because it penalizes requesters who exercise their statutory right to
sue the Agency if the Agency fails to respond to the requester's appeal
within 20 working days, as provided by Sec. 2.104(j)(4). This language
is not intended to penalize requesters or to suggest that EPA will take
no further action on the matter but to indicate that once a lawsuit has
been filed, any further actions on behalf of the Agency will be taken
in the context of the litigation and not the administrative appeal
process. Therefore, EPA has added language in Sec. 2.104(j)(4) to
reflect that once an appellant has initiated litigation because the
Agency has not resolved an appeal in a timely manner, any further
action on the records in dispute will take place through the lawsuit.
The Agency agrees with one commenter's suggestion to revise Sec.
2.104(l) because an administrative appeal is not necessary when the
Agency has not made a timely initial determination. Accordingly, the
Agency has inserted language in Sec. Sec. 2.104(b) and (l) stating
that if EPA fails to respond to a request within the statutory 20
working day period or any authorized extension of time, the requester
may seek judicial review to obtain the records without first making an
administrative appeal.
The Agency has removed the word ``component'' from the proposed
regulations, and replaced it with ``Agency'' or ``office'' as
appropriate to reflect more accurately the Agency's organizational
structure.
III. Statutory Authority
EPA is issuing this rule under the authority of 5 U.S.C. 301, 552
(as amended), and 553.
IV. Administrative Requirements
A. Regulatory Flexibility Act, as amended
The Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.,
generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute, unless the agency certifies
[[Page 67306]]
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as that term
is defined in the Small Business Administration's regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
EPA has determined that this final rule will have only a small
economic impact on the small entities that submit FOI requests to EPA
for records. Under the FOIA, agencies may recover only the direct costs
of processing FOI requests. EPA's proposed fees are nominal and have
been calculated to recover only the direct costs of processing a FOI
request. The revision to the fee schedule is minimal and reflects a
more specific breakdown of direct costs by the kind of EPA employee
involved in processing a FOI request. Therefore, under 5 U.S.C. 605(b),
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities.
B. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This is not a ``major rule'' as defined by 5 U.S.C. 804(2).
This rule will be effective November 5, 2002.
C. Paperwork Reduction Act
This final rule does not impose any reporting or recordkeeping
requirements under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
It pertains solely to the dissemination of information under the FOIA.
D. Environmental Impact
This final rule is expected to have no environmental impact. It
pertains solely to the dissemination of information under the FOIA.
E. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether this final rule is ``significant'' and therefore
subject to Office of Management and Budget (OMB) review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA has determined that this final rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and
therefore is not subject to OMB review.
F. Executive Order 13132 on Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This final rule simply revises
EPA's regulations implementing the FOIA. Thus, the requirements of
section 6 of the Executive Order do not apply to this final rule.
G. Executive Order 13175 on Consultation with Indian Tribal Governments
Executive Order 13175, entitled, ``A Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure `` meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
H. Unfunded Mandates Reform Act of 1995
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), Public Law 104-4, EPA must prepare a budgetary impact statement
to accompany any general notice of proposed rulemaking or final rule
that includes a federal mandate which may result in estimated costs to
State, local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more. Under section 205, for any rule
subject to section 202, EPA generally must select the least costly,
most cost-effective, or least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Under section 203, before establishing any regulatory requirements that
may significantly or uniquely affect small governments, EPA must take
steps to inform and advise small governments of the requirements and
enable them to provide input.
EPA has determined that this final rule does not include a federal
mandate as defined in UMRA. This final rule does not include a federal
mandate that may result in estimated annual costs to State, local or
tribal governments in the aggregate, or to the private sector, of $100
million or more, and does not
[[Page 67307]]
establish regulatory requirements that may significantly or uniquely
affect small governments.
I. Executive Order 13045
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant regulatory action as defined under
Executive Order 12866.
J. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when EPA decides not to
use available and applicable voluntary consensus standards.
This final rule does not involve any technical standards, and EPA
is not considering the use of any voluntary consensus standards.
Accordingly, this final rule is not subject to the requirements of the
NTTAA.
K. Executive Order 13211 (Energy Effects)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. EPA has concluded
that this rule is not likely to have any adverse energy effects.
List of Subjects in 40 CFR Part 2
Environmental protection, Administrative practice and procedure,
Confidential business information, Freedom of information, Government
employees.
Dated: October 30, 2002.
Christie Whitman,
Administrator, Environmental Protection Agency.
For the reasons set out in the preamble, 40 CFR part 2 is amended
as follows:
PART 2--PUBLIC INFORMATION
1. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 301, 552 (as amended) and 553; secs. 114,
205, 208, 301, and 307, Clean Air Act, as amended (42 U.S.C. 7414,
7525, 7542, 7601, 7607); secs. 308, 501 and 509(a), Clean Water Act,
as amended (33 U.S.C. 1318, 1361, 1369(a)); sec. 13, Noise Control
Act of 1972 (42 U.S.C. 4912); secs. 1445 and 1450, Safe Drinking
Water Act (42 U.S.C. 300j-4, 300j-9); secs. 2002, 3007, and 9005,
Solid Waste Disposal Act, as amended (42 U.S.C. 6912, 6927, 6995);
secs. 8(c), 11, and 14, Toxic Substances Control Act (15 U.S.C.
2607(c), 2610, 2613); secs. 10, 12, and 25, Federal Insecticide,
Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136h, 136j,
136w); sec. 408(f), Federal Food, Drug and Cosmetic Act, as amended
(21 U.S.C. 346(f)); secs. 104(f) and 108, Marine Protection Research
and Sanctuaries Act of 1972 (33 U.S.C. 1414(f), 1418); secs. 104 and
115, Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. 9604 and 9615); sec.
505, Motor Vehicle Information and Cost Savings Act, as amended (15
U.S.C. 2005).
2. Part 2, subpart A, is revised to read as follows:
PART 2--PUBLIC INFORMATION
Subpart A--Procedures for Disclosure of Records Under the Freedom
of Information Act
Sec.
2.100 General provisions.
2.101 Where requests for records are to be filed.
2.102 Procedures for making requests.
2.103 Responsibility for responding to requests.
2.104 Responses to requests and appeals.
2.105 Exemption categories.
2.106 Preservation of records.
2.107 Fees.
2.108 Other rights and services.
Subpart A--Procedures for Disclosure of Records Under the Freedom
of Information Act
Sec. 2.100 General provisions.
(a) This subpart contains the rules that the Environmental
Protection Agency (EPA or Agency) follows in processing requests for
records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. The
Agency also has rules that it follows in processing Freedom of
Information (FOI) requests for records submitted to it as Confidential
Business Information (CBI). Such records are covered in subpart B of
this part. Requests made by individuals for records about themselves
under the Privacy Act of 1974 which are processed under 40 CFR part 16,
will also be treated as FOIA requests under this subpart. This ensures
that the requestor has access to all responsive records. Information
routinely provided to the public as part of a regular EPA activity may
be provided to the public without following this subpart.
(b) When documents responsive to a request are maintained for
distribution by agencies operating statutory-based fee schedule
programs, such as, but not limited to, the Government Printing Office
or the National Technical Information Service, EPA will inform the
requester of the steps necessary to obtain records from these sources.
Sec. 2.101 Where requests for records are to be filed.
(a) You may request records by writing to the Records, FOIA, and
Privacy Branch, Office of Environmental Information, Environmental
Protection Agency, 1200 Pennsylvania Avenue (2822T), NW, Washington, DC
20460; e-mail: hq.foia@epa.gov. You may also access EPA Headquarters
and Regional Freedom of Information Offices' Web sites at http://
www.epa.gov/foia and submit a request via an online form. If you
believe the records sought may be located in an EPA regional office,
you should send your request to the appropriate regional FOI Officer as
indicated in the following list:
(1) Region I (CT, ME, MA, NH, RI, VT): EPA, FOI Officer, One
Congress Street, Suite 1100, Boston, MA 02114-2023; e-mail:
r1foia@epa.gov.
(2) Region II (NJ, NY, PR, VI): EPA, FOI Officer, 290 Broadway,
26th Floor, New York, NY 10007-1866; e-mail: r2foia@epa.gov.
(3) Region III (DE, DC, MD, PA, VA, WV): EPA, FOI Officer, 1650
Arch Street, Philadelphia, PA 19103-2029; e-mail: r3foia@epa.gov.
(4) Region IV (AL, FL, GA, KY, MS, NC, SC, TN): EPA, Freedom of
[[Page 67308]]
Information Officer, Sam Nunn Atlanta Federal Center, 61 Forsyth
Street, SW., Atlanta, GA 30303-8960; e-mail: r4foia@epa.gov.
(5) Region V (IL, IN, MI, MN, OH, WI): EPA. Freedom of Information
Officer, 77 West Jackson Boulevard, Chicago, IL 60604-3507; e-mail:
r5foia@epa.gov.
(6) Region VI (AR, LA, NM, OK, TX): EPA, Freedom of Information
Officer, 1445 Ross Avenue, Dallas, TX 75202-2733; e-mail:
r6foia@epa.gov.
(7) Region VII (IA, KS, MO, NE): EPA, Freedom of Information
Officer, 901 North Fifth Street, Kansas City, KS 66101; e-mail:
r7foia@epa.gov.
(8) Region VIII (CO, MT, ND, SD, UT, WY): EPA, Freedom of
Information Officer, 999 18th Street, Suite 500, Denver, CO 80202-2466,
e-mail: r8foia@epa.gov.
(9) Region IX (AZ, CA, HI, NV, AS, GU): EPA, Freedom of Information
Officer, 75 Hawthorne Street, San Francisco, CA 94105; e-mail:
r9foia@epa.gov.
(10) Region X (AK, ID, OR, WA): EPA, Freedom of Information
Officer, 1200 Sixth Avenue, Seattle, WA 98101; e-mail: r10foia@epa.gov.
(b) EPA provides access to all records that the FOIA requires an
agency to make regularly available for public inspection and copying.
Each office is responsible for determining which of the records it
generates are required to be made publicly available and for providing
access by the public to them. The Agency will also maintain and make
available for public inspection and copying a current subject-matter
index of such records and provide a copy or a link to the respective
Web site for Headquarters or the Regions. Each index will be updated
regularly, at least quarterly, with respect to newly-included records.
(c) All records created by EPA on or after November 1, 1996, which
the FOIA requires an agency to make regularly available for public
inspection and copying, will be made available electronically through
EPA's worldwide Web site, located at http://www.epa.gov, or, upon
request, through other electronic means. EPA will also include on its
worldwide Web site the current subject-matter index of all such
records.
Sec. 2.102 Procedures for making requests.
(a) How made and addressed. You may make a request for EPA records
that are not publicly available under Sec. 2.201(a)-(b) by writing
directly to the appropriate FOI Officer, as listed in Sec. 2.101(a).
Only written requests for records will be accepted for processing under
this subpart. For records located at EPA Headquarters, or in those
instances when you cannot determine where to send your request, you may
send it to the Records, FOIA, and Privacy Branch, Office of
Environmental Information, Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460; e-mail:
hq.foia@epa.gov. That office will forward your request to the regional
FOI Office it believes most likely to have the records that you want.
Your request will be considered received as of the date it is received
by the correct FOI Office. Misdirected requests will not be considered
received by EPA until the appropriate FOI Office receives the request.
For proper handling, you should mark both your request letter and its
envelope or e-mail subject line ``Freedom of Information Act Request.''
You should also include your name, mailing address, and daytime
telephone number in the event we need to contact you.
(b) EPA employees may attempt in good faith to comply with oral
requests for inspection or disclosure of EPA records publicly available
under Sec. 2.201(a)-(b) , but such requests are not subject to the
FOIA or the regulations in this part.
(c) Description of records sought. Your request should reasonably
describe the records you are seeking in a way that will permit EPA
employees to identify and locate them. Whenever possible, your request
should include specific information about each record sought, such as
the date, title or name, author, recipient, and subject matter. If
known, you should include any file designations or descriptions for the
records that you want. The more specific you are about the records or
type of records that you want, the more likely EPA will be able to
identify and locate records responsive to your request. If EPA
determines that your request does not reasonably describe the records,
it will tell you either what additional information you need to provide
or why your request is otherwise insufficient. EPA will also give you
an opportunity to discuss and modify your request to meet the
requirements of this section. Should it be necessary for you to provide
a revised description of the records you are seeking, the time
necessary to do so will be excluded from the statutory 20 working day
period (or any authorized extension of time) that EPA has to respond to
your request as discussed in Sec. 2.104.
(d) Agreement to pay fees. If you make a FOIA request, EPA will
consider your request to be an agreement that you will pay all
applicable fees charged under Sec. 2.107, up to $25.00, unless you
seek a waiver of fees. The EPA office responsible for responding to
your request ordinarily will confirm this agreement in writing. When
making a request, you may specify a willingness to pay a greater or
lesser amount. Should it be necessary for you to provide a written
agreement to pay additional fees, the time necessary to do so will be
excluded from the statutory 20 working day period (or any authorized
extension of time).
Sec. 2.103 Responsibility for responding to requests.
(a) In general. Except as stated in paragraphs (c), (d), (e), and
(f) of this section, the EPA office that has possession of that record
is the office responsible for responding to you. In determining which
records are within the scope of a request, an office will ordinarily
include only those records in its possession as of the date the request
was received in the Headquarters or Regional FOI Office. If any other
date is used, the office will inform you of that date.
(b) Authority to grant or deny requests. The head of an office, or
that individual's designee, is authorized to grant or deny any request
for a record of that office or other Agency records when appropriate.
(c) Authority to grant or deny fee waivers or requests for
expedited treatment. The head of the Headquarters FOIA Office and
Regional FOI Officers, or their designees, are authorized to grant or
deny fee waivers or requests for expedited treatment.
(d) Consultations and referrals. When a request to EPA seeks
records in its possession that originated with another Federal agency,
the EPA office receiving the request shall either:
(1) Consult with the Federal agency where the record or portion
thereof originated and then respond to your request, or
(2) Direct the FOI Office to refer your request to the Federal
agency where the record or portion thereof originated. Whenever all or
any part of the responsibility for responding to a request has been
referred to another agency, the FOI Office will notify you accordingly.
(e) Law enforcement information. Whenever a request is made for a
record containing information that relates to an investigation of a
possible violation of law and was originated by another agency, the
receiving office will either direct the FOI Office to refer the request
to that other agency or consult with that other agency prior to making
any release determination.
[[Page 67309]]
Sec. 2.104 Responses to requests and appeals.
(a) Unless the Agency and the requester have agreed otherwise, or
when unusual circumstances exist as provided in paragraph (e) of this
section, EPA offices will respond to requests no later than 20 working
days from the date the request is received and logged in by the
appropriate FOI Office. EPA will ordinarily respond to requests in the
order in which they were received. If EPA fails to respond to your
request within the 20 working day period, or any authorized extension
of time, you may seek judicial review to obtain the records without
first making an administrative appeal.
(b) On receipt of a request, the FOI Office ordinarily will send a
written acknowledgment advising you of the date it was received and of
the processing number assigned to the request for future reference.
(c) Multitrack processing. The Agency uses three or more processing
tracks by distinguishing between simple and complex requests based on
the amount of work and/or time needed to process the request, including
limits based on the number of pages involved. The Agency will advise
you of the processing track in which your request has been placed and
of the limits of the different processing tracks. The Agency may place
your request in its slower track(s) while providing you the opportunity
to limit the scope of your request in order to qualify for faster
processing within the specified limits of the faster track(s). If your
request is placed in a slower track, the Agency will contact you either
by telephone or by letter, whichever is most efficient in each case.
(d) Unusual circumstances. When the statutory time limits for
processing a request cannot be met because of ``unusual
circumstances,'' as defined in the FOIA, and the time limits are
extended on that basis, you will be notified in writing, as soon as
practicable, of the unusual circumstances and of the date by which
processing of the request should be completed. When the extension is
for more than 10 working days, the Agency will provide you with an
opportunity either to modify the request so that it may be processed
within the 10 working day time limit extension or to arrange an
alternative time period for processing the original or modified
request.
(e) Expedited processing. (1) Requests or appeals will be taken out
of order and given expedited treatment whenever EPA determines that
such requests or appeals involve a compelling need, as follows:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
Federal government activity, if the information is requested by a
person primarily engaged in disseminating information to the public.
(2) A request for expedited processing must be made at the time of
the initial request for records or at the time of appeal.
(3) If you are seeking expedited processing, you must submit a
statement, certified to be true and correct to the best of your
knowledge and belief, explaining in detail the basis for the request.
For example, if you fit within the category described in paragraph
(e)(1)(ii) of this section and are not a full-time member of the news
media, you must establish that you are a person whose primary
professional activity or occupation is information dissemination,
although it need not be your sole occupation. If you fit within the
category described in paragraph (e)(1)(ii) of this section, you must
also establish a particular urgency to inform the public about the
government activity involved in the request, beyond the public's right
to know about government activity generally.
(4) Within 10 calendar days from the date of your request for
expedited processing, the head of the Headquarters FOI Staff or
Regional FOI Officer will decide whether to grant your request and will
notify you of the decision. If your request for expedited treatment is
granted, the request will be given priority and will be processed as
soon as practicable. If your request for expedited processing is
denied, any appeal of that decision will be acted on expeditiously.
(f) Grants of requests. Once an office makes a determination to
grant a request in whole or in part, it will release the records or
parts of records to you and notify you of any applicable fee charged
under Sec. 2.107. Records released in part will be annotated, whenever
technically feasible, with the applicable FOIA exemption(s) at that
part of the record from which the exempt information was deleted.
(g) Adverse determinations of requests. Once the Agency makes an
adverse determination of a request, the requestor will be notified of
that determination in writing. An adverse determination consists of a
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that what has been requested is not a record
subject to the FOIA; a determination on any disputed fee matter,
including a denial of a request for a fee waiver; or a denial of a
request for expedited treatment.
(h) Initial denials of requests. The Deputy Administrator,
Assistant Administrators, Regional Administrators, the General Counsel,
the Inspector General, Associate Administrators, and heads of
headquarters staff offices are delegated the authority to issue initial
determinations. However, the authority to issue initial denials of
requests for existing, located records (other than initial denials
based solely on Sec. 2.204(d)(1)) may be redelegated only to persons
occupying positions not lower than division director or equivalent.
Each letter will include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reason(s) for the denial, including an
identification of records being withheld (individual, or if a large
number of similar records are being denied, by described category), and
any FOIA exemption applied by the office in denying the request;
(3) An estimate of the volume of records or information withheld,
in number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through annotated deletions on records disclosed in part, or
if providing an estimate would harm an interest protected by an
applicable exemption; and
(4) A statement that the denial may be appealed under, and a
description of the requirements of, paragraph (j) of this section.
(i) Denial of fee waiver. The letter denying a request for a fee
waiver or expedited treatment will be signed by the head of the
Headquarters FOI Staff or Regional FOI Officers.
(j) Appeals of adverse determinations. If you are dissatisfied with
any adverse determination of your request by an office, you may appeal
that determination to the Headquarters Freedom of Information Staff,
Records, Privacy and FOIA Branch, Office of Information Collection,
Office of Environmental Information, Environmental Protection Agency,
1200 Pennsylvania Avenue (2822T), NW., Washington, DC 20460; e-mail:
hq.foia@epa.gov. The appeal must be made in writing, and it must be
submitted to the Headquarters FOI Staff no later than 30 calendar days
from the
[[Page 67310]]
date of the letter denying the request. The Agency will not consider
appeals received after the 30-day limit. The appeal letter may include
as much or as little related information as you wish, as long as it
clearly identifies the determination being appealed (including the
assigned FOIA request number, if known). For quickest possible
handling, the appeal letter and its envelope should be marked ``Freedom
of Information Act Appeal.'' Unless the Administrator directs
otherwise, the General Counsel or his/her designee will act on behalf
of the Administrator on all appeals under this section, except that:
(1) In the case of an adverse initial determination by the General
Counsel or his/her designee, the Administrator or his/her designee will
act on the appeal;
(2) The Counsel to the Inspector General will act on any appeal
where the Inspector General or his/her designee has made the initial
adverse determination; however, if the Counsel to the Inspector General
has signed the initial adverse determination, the General Counsel or
his/her designee will act on the appeal;
(3) An adverse determination by the Administrator on an initial
request will serve as the final action of the Agency; and
(4) If a requester seeks judicial review because the Agency has not
responded in a timely manner, any further action on an appeal will take
place through the lawsuit.
(k) The decision on your appeal will be made in writing, normally
within 20 working days of its receipt by the Headquarters Freedom of
Information Staff. A decision affirming an adverse determination in
whole or in part will contain a statement of the reason(s) for the
decision, including any FOIA exemption(s) applied, and inform you of
the FOIA provisions for judicial review of the decision. If the adverse
determination is reversed or modified on appeal, you will be notified
in a written decision. This written decision will either have the
requested information that has been determined on appeal to be
releasable attached to it, or your request will be returned to the
appropriate office so that it may be reprocessed in accordance with the
appeal decision.
(l) If you wish to seek judicial review of any adverse
determination, you must first appeal that adverse determination under
this section, except when EPA has not responded to your request within
the statutory 20 working day time limit. In such cases, you may seek
judicial review without making an administrative appeal.
Sec. 2.105 Exemption categories.
(a) The FOIA, 5 U.S.C. 552(b), establishes the following nine
categories of information which are exempt from the mandatory
disclosure requirements of 5 U.S.C. 552(a):
(1)(i) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense
or foreign policy; and
(ii) Are in fact properly classified pursuant to such Executive
order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than 5
U.S.C. 552(b)), provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding information or
refers to particular types of information to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a party other than an agency in litigation
with the affected agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety or any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
Sec. 2.106 Preservation of records.
Each FOI Officer shall preserve all correspondence pertaining to
the FOIA requests that it receives until disposition or destruction is
authorized by title 44 of the United States Code or the National
Archives and Records Administration's General Records Schedule 14.
Copies of all responsive records should be maintained by the
appropriate program office. Records shall not be disposed of while they
are the subject of a pending request, appeal, or lawsuit under the
FOIA.
Sec. 2.107 Fees.
(a) In general. The Agency will charge for processing requests
under the FOIA in accordance with paragraph (c) of this section, except
where fees are limited under paragraph (d) of this section or where a
waiver or reduction of fees is granted under paragraph (l) of this
section. Requesters will pay fees by check or money order made payable
to the U.S. Environmental Protection Agency.
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his/her
commercial, trade, or profit interests, which can include furthering
those interests through litigation. FOI Officers will determine,
whenever reasonably possible, the use to which a requester will put the
requested records. When it appears that the requester will put the
records to a commercial use, either because of the nature of the
request itself or because an office has reasonable cause to doubt a
requester's stated use, the FOI Officer will provide the requester a
reasonable opportunity to submit further clarification.
(2) Direct costs means those expenses that the Agency actually
incurs in searching for and duplicating (and, in the case of commercial
use requests, reviewing) records to respond to a FOIA request. Direct
costs include, for example, the salary of the employee
[[Page 67311]]
performing the work and the cost of operating duplication equipment.
Not included in direct costs are overhead expenses such as the costs of
space and heating or lighting of the facility in which the records are
kept.
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape, disk, or compact disk),
among others. The Agency will honor a requester's specified preference
of form or format of disclosure if the record is readily reproducible
with reasonable efforts in the requested form or format.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education,
that operates a program of scholarly research. To be in this category,
a requester must show that the request is authorized by, and is made
under the auspices of, a qualifying institution and that the records
are not sought for a commercial use but are sought to further scholarly
research.
(5) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific research which is not intended to
promote any particular product or industry. To be in this category, a
requester must show that the request is authorized by, and is made
under the auspices of, a qualifying institution and that the records
are not sought for a commercial use but are sought to further
scientific research.
(6) Representative of the news media or news media requester means
any person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or that would be of
current interest to the public. Examples of news media include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only in those instances where they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. For ``freelance''
journalists to be regarded as working for a news organization, they
must demonstrate a solid basis for expecting publication through that
organization. A publication contract would be the clearest proof, but
FOI Officers will also look to the past publication record of a
requester in making this determination. To be in this category, a
requester must not be seeking the requested records for a commercial
use. A request for records supporting the news-dissemination function
of the requester will not be considered to be for a commercial use.
(7) Review means the examination of a record located in response to
a request in order to determine whether any portion of it is exempt
from disclosure. It also includes processing any record for disclosure
(for example, doing all that is necessary to redact it and prepare it
for disclosure). Review costs are recoverable even if a record
ultimately is not disclosed. Review time includes time spent
considering any formal objection to disclosure made by a business
submitter requesting confidential treatment, but does not include time
spent resolving general legal or policy issues regarding the
application of exemptions.
(8) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Offices will ensure
that searches are done in the most efficient and least expensive manner
reasonably possible. For example, offices will not search line-by-line
where duplicating an entire document would be quicker and less
expensive.
(c) Fees to be charged. (1) There are four categories of requests.
Fees for each of these categories will be charged as follows:
(i) Commercial use requests. A requester seeking access to records
for a commercial use will be charged for the time spent searching for
the records, reviewing the records for possible disclosure, and for the
cost of each page of duplication. The charges for searching for and/or
reviewing the records may be charged even if no responsive records are
found or if the records are located but are determined to be exempt
from disclosure.
(ii) Educational or non-commercial scientific requests. Requesters
from educational or scientific institutions, whose purpose is
scholarly, noncommercial research, will be charged only for the cost of
record duplication, except that the first 100 pages of duplication will
be furnished at no charge.
(iii) News media requests. Requesters who are representatives of
the news media, and whose purpose in seeking records is noncommercial,
will be charged only for the cost of duplication, except that the first
100 pages of duplication will be furnished at no charge.
(iv) All other requests. Requesters not covered by one of the three
categories above will be charged for the full cost of search and
duplication, except that the first two hours of search time and the
first 100 pages of duplication will be furnished without charge. The
charges for searching for the records will be assessed even if no
responsive records are found or if the records are located but are
determined to be exempt from disclosure.
(2) In responding to FOIA requests, the Agency will charge the
following fees unless a waiver or reduction of fees has been granted
under paragraph (l) of this section:
(i) Search. (A) Search fees will be charged for all requests except
for those made by educational institutions, noncommercial scientific
institutions, or representatives of the news media subject to the
limitations of paragraph (d) of this section. Offices will charge for
time spent searching even if no responsive records are found or if the
records are located but are determined to be exempt from disclosure.
(B) For searches and retrievals of requested records, either
manually or electronically, conducted by clerical personnel, the fee
will be $4.00 for each quarter hour of time. For searches and
retrievals of requested records, either manually or electronically,
requiring the use of professional personnel, the fee will be $7.00 for
each quarter hour of time. For searches and retrievals of requested
records, either manually or electronically, requiring the use of
managerial personnel, the fee will be $10.25 for each quarter hour of
time.
(C) When searches and retrievals are conducted by contractors,
requesters will be charged for the actual charges up to but not
exceeding the rate which would have been charged had EPA employees
conducted the search. The costs of actual computer resource usage in
connection with such searches will also be charged, to the extent they
can be determined.
(ii) Duplication. Duplication fees will be charged to all
requesters, subject to the limitations of paragraph (d) of this
section. For either a photocopy or a computer-generated printout of a
record (no more than one copy of which need be supplied), the fee will
be fifteen (15) cents per page. For electronic forms of duplication,
other than a computer-generated printout, offices will charge the
direct costs of that duplication. Such
[[Page 67312]]
direct costs will include the costs of the requested electronic medium
on which the copy is to be made and the actual operator time and
computer resource usage required to produce the copy, to the extent
they can be determined.
(iii) Review. Review fees will be charged only to requesters who
make a commercial use request. Review fees will be charged only for the
initial record review (that is, the review done when an office is
deciding whether an exemption applies to a particular record or portion
of a record at the initial request level). No charge will be made for
review at the administrative appeal level for an exemption already
applied. However, records or portions of records withheld under an
exemption that is subsequently determined not to apply may be reviewed
again to determine whether any other exemption not previously
considered applies; the costs of that review will be charged when it is
made necessary by a change of circumstances. Review fees will be
charged at the same rates as those charged for a search under paragraph
(c)(1)(i) of this section.
(d) Limitations on charging fees. (1) No search or review fees will
be charged for requests by educational institutions, noncommercial
scientific institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use,
offices will provide without charge:
(i) The first 100 pages of duplication, and
(ii) The first two hours of search.
(4) Whenever a total fee calculated under paragraph (c) of this
section is $14.00 or less for any request, no fee will be charged.
(5) The provisions of paragraphs (d)(3) and (4) of this section
work together. This means that for requesters other than those seeking
records for a commercial use, no fee will be charged unless the cost of
search in excess of two hours plus the cost of duplication in excess of
100 pages totals more than $14.00.
(e) Notice of anticipated fees in excess of $25.00. When the Agency
determines or estimates that the fees to be charged under this section
will amount to more than $25.00, the Agency will notify the requester
of the actual or estimated amount of the fees, unless the requester has
indicated a willingness to pay fees as high as those anticipated. The
amount of $25.00 is cumulative for multi-office requests. If only a
portion of the fee can be estimated readily, the Agency will advise the
requester that the estimated fee may be only a portion of the total
fee. When a requester has been notified that actual or estimated fees
will amount to more than $25.00, EPA will do no further work on the
request until the requester agrees to pay the anticipated total fee.
This time will be excluded from the twenty (20) working day time limit.
EPA will memorialize any such agreement in writing. A notice under this
paragraph will offer the requester an opportunity to discuss the matter
with Agency personnel in order to reformulate the request to meet the
requester's needs at a lower cost.
(f) Charges for other services. Apart from the other provisions of
this section, when an office chooses as a matter of administrative
discretion to provide a special service-such as certifying that records
are true copies or sending records by other than ordinary mail-the
direct costs of providing the service ordinarily will be charged.
(g) Charging interest. EPA may charge interest on any unpaid bill
starting on the 31st day following the date of billing the requester.
Interest charges will be assessed at the rate provided in 31 U.S.C.
3717 and will accrue from the date of the billing until payment is
received by the Agency. EPA will follow the provisions of the Debt
Collection Act of 1982 (Pub. L. 97-365), as amended, and its
administrative procedures, including the use of consumer reporting
agencies, collection agencies, and offset. No penalty will be assessed
against FOIA requesters for exercising their statutory right to ask
that a fee be waived or reduced or to dispute a billing. If a fee is in
dispute, penalties will be suspended upon notification.
(h) Delinquent requesters. If requesters fail to pay all fees
within 60 calendar days of the fees assessment, they will be placed on
a delinquency list. Subsequent FOIA requests will not be processed
until payment of the overdue fees has first been made.
(i) Aggregating requests. When the Agency reasonably believes that
a requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, the Agency may aggregate those requests and charge accordingly.
The Agency may presume that multiple requests of this type made within
a 30-day period have been made in order to avoid fees. When requests
are separated by a longer period, the Agency will aggregate them only
if there exists a solid basis for determining that aggregation is
warranted under all the circumstances involved. Multiple requests
involving unrelated matters will not be aggregated.
(j) Advance payments. (1) For requests other than those described
in paragraphs (j)(2) and (3) of this section, an office will not
require the requester to make an advance payment (that is, a payment
made before EPA begins or continues work on a request). Payment owed
for work already completed (that is, a prepayment before copies are
sent to a requester) is not an advance payment.
(2) When the Agency determines or estimates that a total fee to be
charged under this section will be more than $250.00, it may require
the requester to make an advance payment of an amount up to the amount
of the entire anticipated fee before beginning to process the request,
except when it receives a satisfactory assurance of full payment from a
requester that has a history of prompt payment.
(3) When a requester has previously failed to pay a properly
charged FOIA fee to the Agency within 30 calendar days of the date of
billing, the Agency may require the requester to pay the full amount
due, plus any applicable interest, and to make an advance payment of
the full amount of any anticipated fee, before the Agency begins to
process a new request or continues to process a pending request from
that requester.
(4) When the Agency requires advance payment or payment due under
paragraph (j)(3) of this section, the request will not be considered,
and EPA will do no further work on the request until the required
payment is made.
(k) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any other
statute that specifically requires an agency to set and collect fees
for particular types of records. When records responsive to requests
are maintained for distribution by agencies operating such statutorily
based fee schedule programs, EPA will inform requesters of the steps
for obtaining records from those sources so that they may do so most
economically.
(l) Waiver or reduction of fees. (1) Records responsive to a
request will be furnished without charge or at a charge reduced below
that established under paragraph (c) of this section when a FOI Office
determines, based on all available information, that disclosure of the
requested information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
[[Page 67313]]
(2) To determine whether the first fee waiver requirement is met,
FOI Offices will consider the following factors:
(i) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
government.'' The subject of the requested records must concern
identifiable operations or activities of the Federal government, with a
connection that is direct and clear, not remote.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be as
likely to contribute to such understanding when nothing new would be
added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public is likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester's expertise in
the subject area and ability and intention to effectively convey
information to the public will be considered. It will be presumed that
a representative of the news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. FOI Offices will
not make value judgments about whether information that would
contribute significantly to public understanding of the operations or
activities of the government is ``important'' enough to be made public.
(3) To determine whether the second fee waiver requirement is met,
FOI Offices will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. FOI Offices will consider any commercial interest
of the requester (with reference to the definition of ``commercial use
request'' in paragraph (b)(1) of this section), or of any person on
whose behalf the requester may be acting, that would be furthered by
the requested disclosure. Requesters will be given an opportunity in
the administrative process to provide explanatory information regarding
this consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. FOI Offices
ordinarily will presume that when a news media requester has satisfied
the public interest standard, the public interest will be the interest
primarily served by disclosure to that requester. Disclosure to data
brokers or others who merely compile and market government information
for direct economic return will not be presumed to primarily serve the
public interest.
(4) When only some of the requested records satisfy the
requirements for a waiver of fees, a waiver will be granted for only
those records.
(5) Requests for the waiver or reduction of fees must address the
factors listed in paragraphs (k) (l)-(3) of this section, insofar as
they apply to each request. FOI Offices will exercise their discretion
to consider the cost-effectiveness of their investment of
administrative resources in deciding whether to grant waivers or
reductions of fees and will consult the appropriate EPA offices as
needed. Requests for the waiver or reduction of fees must be submitted
along with the request.
(6) When a fee waiver request is denied, EPA will do no further
work on the request until it receives an assurance of payment or an
appeal of the fee waiver adverse determination is made and a final
appeal determination is made pursuant to Sec. 2.104(j).
Sec. 2.108 Other rights and services.
Nothing in this subpart shall be construed to entitle any person,
as a right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
[FR Doc. 02-28081 Filed 11-4-02; 8:45 am]
BILLING CODE 6560-50-P