[Federal Register Volume 65, Number 71 (Wednesday, April 12, 2000)]
[Proposed Rules]
[Pages 19703-19710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8837]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

[FRL-6575-5]


Revised Freedom of Information Act Regulations

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) proposes 
to revise its 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. The regulations also 
reflect the principles established by President Clinton and Attorney 
General Reno in their FOIA Policy Memoranda dated October 4, 1993, as 
well as Attorney General Reno's recent restatement of those principles 
in a FOIA Policy Memorandum dated September 3, 1999. In addition, the 
regulations contain new provisions implementing the Electronic Freedom 
of Information Act Amendments of 1996, reflect developments in case law 
under the FOIA, and update cost figures for calculating and charging 
fees.

DATES: Comments must be received on or before May 12, 2000.

ADDRESSES: Please send any comments on this proposed rule to Jeralene 
B. Green, Office of Environmental Information (2822), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
    Public comments on this proposed rule will be available for review 
at EPA's Air and Radiation Docket and Information Center (6102), 
Attention Docket Number FOIA-2000-01, 401 M Street, SW., Room M-1500, 
Waterside Mall (ground floor), Washington, DC 20460. This Docket is 
available for public inspection and copying between 8:00 a.m. and 5:30 
p.m., Monday through Friday, or by calling (202) 260-7548. A reasonable 
fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Jeralene B. Green, (202) 260-1050.

SUPPLEMENTARY INFORMATION:

I. Description of Proposed Rule

    EPA is proposing this comprehensive revision to 40 CFR part 2, 
subpart A, to add new provisions to implement the Electronic Freedom of 
Information Act Amendments of 1996, Public Law 104-231, to update the 
fee schedule, and to incorporate changes to the language and structure 
of the regulations. New provisions implementing the amendments are 
found at Sec. 2.101(c) (electronic availability of records), 
Sec. 2.104(b) (timing of responses), Sec. 2.104(f) (expedited 
processing), Sec. 2.104(g) (deletion marking), Sec. 2.104(i)(3) (volume 
estimation), Sec. 2.106(b)(3) (format of disclosure), and 
Sec. 2.106(b)(8) (electronic searches).
    Proposed changes to the Agency's fee schedule are found at 
Sec. 2.106(c) and (d). The duplication charge will remain the same at 
fifteen (15) cents per page, while document search and review charges 
will increase to $4.00, $7.00, and $10.25 per quarter hour for 
clerical, professional, and managerial time, respectively. The amount 
at or below which the Agency will not charge a fee will be $14.00.

II. Statutory Authority

    EPA is proposing this rule under the authority of 5 U.S.C. 301, 552 
(as amended), and 553.

III. 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 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.
    EPA has determined that this proposed rule will have only a small 
economic impact on the small entities that submit FOIA requests to EPA 
for records. Under the FOIA, agencies may recover only the direct costs 
of searching for, reviewing, and duplicating the records processed for 
requesters. EPA's proposed fees are nominal and have been calculated to 
recover only the direct costs of processing a FOIA 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 FOIA request. Therefore, under 5 U.S.C. 605(b), I certify 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities.

IV. Paperwork Reduction Act

    This proposed 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.

V. Environmental Impact

    This proposed rule is expected to have no environmental impact. It 
pertains solely to the dissemination of information under the FOIA.

VI. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA 
must determine whether this proposed 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 proposed rule is not a ``significant 
regulatory action'' under the terms of

[[Page 19704]]

Executive Order 12866 and therefore is not subject to OMB review.

VII. 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.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This proposed 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 proposed rule simply 
revises EPA's regulations implementing the FOIA. Thus, the requirements 
of section 6 of the Executive Order do not apply to this proposed rule.

VIII. Executive Order 13084 on Consultation With Indian Tribal 
Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to OMB, in a separately identified section of 
the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    This proposed rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of Executive Order 13084 do not apply to this proposed rule.

IX. 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 proposed rule does not include a 
federal mandate as defined in UMRA. This proposed 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 establish regulatory requirements 
that may significantly or uniquely affect small governments.

X. Executive Order 13045

    Executive Order 13045, entitled ``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, EPA must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned rule is preferable to other potentially effective and 
reasonably feasible alternatives considered by EPA.
    EPA believes Executive Order 13045 applies only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Executive Order has the 
potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

XI. 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 proposed rule does not involve any technical standards, and 
EPA is not considering the use of any voluntary consensus standards. 
Accordingly, this proposed rule is not subject to the requirements of 
the NTTAA.

List of Subjects 40 CFR Part 2

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Freedom of information, Government 
employees.

    Dated: March 31, 2000.
Margaret N. Schneider,
Principal Deputy Assistant Administrator.
    For the reasons set out above, EPA proposes to amend 40 CFR part 2 
as follows:

PART 2--PUBLIC INFORMATION

    1. The authority citation for part 2 continues to read as follows:

[[Page 19705]]


    Authority: 5 U.S.C. 301, 552 (as amended), 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. Subpart A is revised to read as follows:
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.
2.105   Preservation of records.
2.106   Fees.
2.107   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 the Agency) follows in processing requests 
for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. 
Information routinely provided to the public as part of a regular EPA 
activity may be provided to the public without following this subpart. 
As a matter of policy, EPA makes discretionary disclosures of records 
or information exempt under the FOIA whenever disclosure would not 
foreseeably harm an interest protected by a FOIA exemption, but this 
policy does not create any right enforceable in court.
    (b) As used in this subpart, the term ``component'' includes the 
offices of the Administrator, the Deputy Administrator, the Assistant 
Administrators, the Regional Administrators, the General Counsel, the 
Inspector General, the Chief Financial Officer, the Associate 
Administrators, and the headquarters staff offices.
    (c) 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 Headquarters Freedom 
of Information Operations Staff (1105), Environmental Protection 
Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460; (202) 260-4048; FAX: (202) 260-4499. If you believe the 
records sought may be located in an EPA regional office, you should 
send your request to the appropriate regional Freedom of Information 
Officer as indicated in the following list:
    (1) Region I (CT, ME, MA, NH, RI, VT): EPA, Freedom of Information 
Officer, One Congress Street, Suite 1100, Boston, MA 02114-2023; (617) 
918-1103; FAX: (617) 918-1124.
    (2) Region II (NJ, NY, PR, VI): EPA, Freedom of Information 
Officer, 290 Broadway, 26th Floor, New York, NY 10007-1866; (212) 637-
3668; FAX: (212) 637-5046.
    (3) Region III (DE, DC, MD, PA, VA, WV): EPA, Freedom of 
Information Officer, 1650 Arch Street, Philadelphia, PA 19103-2029; 
(215) 814-5553; FAX: (215) 814-5102.
    (4) Region IV (AL, FL, GA, KY, MS, NC, SC, TN): EPA, Freedom of 
Information Officer, Atlanta Federal Center, 61 Forsyth Street, SW., 
Atlanta, GA 30303-3104; (404) 562-8034; FAX: (404) 562-8054.
    (5) Region V (IL, IN, MI, MN, OH, WI): EPA. Freedom of Information 
Officer, 77 West Jackson Boulevard, Chicago, IL 60604-3507; (312) 886-
2942; FAX: (312) 886-6686.
    (6) Region VI (AR, LA, NM, OK, TX): EPA, Freedom of Information 
Officer, 1445 Ross Avenue, Dallas, TX 75202-2733; (214) 665-6597; FAX: 
(214) 665-2146.
    (7) Region VII (IA, KS, MO, NE): EPA, Freedom of Information 
Officer, 901 North Fifth Street, Kansas City, KS 66101; (913) 551-7764; 
FAX: (913) 551-7066. Subpart A. Procedure
    (8) Region VIII (CO, MT, ND, SD, UT, WY): EPA, Freedom of 
Information Officer, 999 18th Street, Suite 500, Denver, CO 80202-2466, 
(303) 312-6940; FAX: (303) 312-6961.
    (9) Region IX (AZ, CA, HI, NV, AS, GU): EPA, Freedom of Information 
Officer, 75 Hawthorne Street, San Francisco, CA 94105; (415) 744-1593; 
FAX: (415) 744-1605.
    (10) Region X (AK, ID, OR, WA): EPA, Freedom of Information 
Officer, 1200 Sixth Avenue, Seattle, WA 98101; (206) 553-8665; FAX: 
(206) 553-0149.
    (b) EPA provides access to all records that the FOIA requires an 
agency to make regularly available for public inspection and copying. 
Each component 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. Each component will also maintain and 
make available for public inspection and copying a current subject-
matter index of such records. 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 
by writing directly to the Freedom of Information Officer of the 
component as listed in Sec. 2.101(a). Only written requests for records 
will be accepted for processing under this subpart. If you are making a 
request for records about yourself, see 40 CFR part 16, which 
implements the Privacy Act of 1974. If you are making a request for 
records about another individual, either a written authorization signed 
by that individual permitting disclosure of those records to you or 
proof that that individual is deceased (for example, a copy of a death 
certificate or an obituary) will help EPA to process your request. For 
records located at EPA headquarters, or in those instances when you 
cannot determine which EPA office to send your request, you may send it 
to the Headquarters Freedom of Information Operations Staff (1105), 
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460. That office will forward your 
request to the component(s) 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 FOIA

[[Page 19706]]

office. Misdirected requests will not be considered received by EPA 
until the appropriate FOIA office receives the request. For the 
quickest possible handling, you should mark both your request letter 
and its envelope ``Freedom of Information Act Request.''
    (b) EPA officers and employees will attempt in good faith to comply 
with requests for inspection or disclosure of EPA records made orally, 
by telephone or otherwise, but such requests are not required to be 
processed in accordance with this subpart.
    (c) Description of records sought. You must describe the records 
you are seeking in enough detail to enable EPA personnel to locate them 
with a reasonable amount of effort. 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. As a general rule, the more specific you are 
about the records or type of records that you want, the more likely EPA 
will be able to locate those records in response 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 20 working day period (or 
any extension of such period) 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. 2.106, up to $25.00, unless you seek 
a waiver of fees. The EPA component 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.


Sec. 2.103  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraphs (c), (d), and (e) of 
this section, the Freedom of Information Office of the component that 
has possession of that record is the component responsible for 
responding to you. In determining which records are responsive to a 
request, a component will include only those records in its possession 
as of the date the Freedom of Information Office of the component 
receives the request. If any other date is used, the component will 
inform you of that date.
    (b) Authority to grant or deny requests. The head of a component, 
or the component head's designee, has been delegated authority to grant 
or deny any request for a record of that component.
    (c) Consultations and referrals. When a component receives a 
request for a record in its possession, it will determine whether 
another component, or another agency of the Federal government, is 
better able to determine whether the record is exempt from disclosure 
under the FOIA and, if so, whether it should be disclosed as a matter 
of administrative discretion. If the receiving component determines 
that it is best able to process the record in response to the request, 
then it will do so. If the receiving component determines that it is 
not best able to process the record, then it will either:
    (1) Respond to you regarding the record you have requested, after 
consulting with the component or agency best able to determine whether 
to disclose it and with any other component or agency that has a 
substantial interest in it; or
    (2) Refer the responsibility for responding to your request 
regarding that record to the component best able to determine whether 
to disclose it, or to another agency that originated the record (but 
only if that agency is subject to FOIA). Ordinarily, the component or 
agency that originated a record will be presumed to be best able to 
determine whether to disclose it.
    (d) 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 component or 
agency, the receiving component will either refer the responsibility 
for responding to the request regarding that information to that other 
component or agency or will consult with that other component or agency 
prior to making any release determination.
    (e) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or agency, it ordinarily will notify you of the referral and inform you 
of the name of each component or agency to which the request has been 
referred and of the part of the request that has been referred.


Sec. 2.104  Responses to requests.

    (a) The Deputy Administrator, Assistant Administrators, Regional 
Administrators, General Counsel, Inspector General, Chief Financial 
Officer, Associate Administrators, and heads of headquarters staff 
offices are delegated the authority to issue initial determinations to 
release or deny the release of responsive records. The authority to 
issue initial determinations denying the release of records, except for 
records that have been claimed as confidential business information 
(CBI), may be redelegated to the division director level or equivalent, 
but not lower. The authority to issue initial determinations denying 
the release of records that have been claimed as CBI, as discussed in 
subpart B of this part 2, may be redelegated to levels below the 
division director level or equivalent.
    (b) Components ordinarily will respond to requests no later than 
twenty (20) working days from the date the request is received. 
Requests ordinarily will be responded to according to their order of 
receipt.
    (c) On receipt of a request, the Freedom of Information Office 
ordinarily will send an acknowledgment letter advising you of the date 
it was received and of the processing number assigned to the request 
for future reference.
    (d) Multitrack processing. (1) A component may use two 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. If a component 
does so, it will advise you of the processing track in which your 
request has been placed and of the limits of the different processing 
tracks.
    (2) A component using multitrack processing 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 component's faster track(s). A component 
doing so will contact you either by telephone or by letter, whichever 
is most efficient in each case.
    (e) Unusual circumstances. When the time limits for processing a 
request cannot be met because of unusual circumstances and the 
component determines to extend the time limits on that basis, the 
component will notify you in writing, as soon as practicable, of the 
unusual circumstances and of the date by which the component expects 
processing of the request to be completed. When the extension is for 
more than ten (10) working days, the

[[Page 19707]]

component will provide you with an opportunity either to modify the 
request so that it may be processed within the ten-day time limit 
extension or to arrange an alternative time period with the component 
for processing the original or modified request.
    (f) 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:
    (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 may be made at the time of 
the initial request for records or before processing of the request has 
been completed. For a prompt determination, you must send a request for 
expedited processing to the proper component.
    (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 
(f)(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 (f)(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 ten (10) working days from the date of your request for 
expedited processing, the proper component 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.
    (g) Grants of requests. Once a component 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. 2.106. 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.
    (h) Adverse determinations of requests. Once a component makes an 
adverse determination of a request, it will notify you 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; and a denial of a 
request for expedited treatment.
    (i) The letter denying a request for records in whole or in part 
will be signed by the head of the component, or the component head's 
designee, and 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 
any FOIA exemption applied by the component 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.
    (j) Appeals of adverse determinations. If you are dissatisfied with 
any adverse determination of your request by a component, you may 
appeal that determination to the Headquarters Freedom of Information 
Operations Staff (1105), Environmental Protection Agency, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. The 
appeal must be made in writing, and it must be submitted to the 
Headquarters Freedom of Information Operations Staff no later than 
thirty (30) calendar days from the date of the letter denying the 
request. 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 determination on an initial request 
by the General Counsel or his/her designee, the Administrator or his/
her designee will act on the appeal;
    (2) An adverse determination on an initial request by the 
Administrator will be the final action of the Agency; and
    (3) An appeal will not be acted on if the request becomes a matter 
of FOIA litigation.
    (k) The decision on an appeal will be made normally, in writing, 
within twenty (20) working days of its receipt by the Headquarters 
Freedom of Information Operations Staff. A decision affirming a 
component's 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 component's 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 
component 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.


Sec. 2.105  Preservation of records.

    Each component shall preserve all correspondence pertaining to the 
FOIA requests that it receives, as well as copies of all requested 
records, 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. Records shall not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.


Sec. 2.106  Fees.

    (a) In general. Components 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

[[Page 19708]]

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. Components 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 a component has reasonable cause to doubt 
a requester's stated use, the component 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 performing the 
work (the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) 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 or disk), 
among others. Components 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 the results of which are 
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 components 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. However, 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. Components will 
ensure that searches are done in the most efficient and least expensive 
manner reasonably possible. For example, components 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 in paragraphs (c)(1)(i) through (iii) of this section 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, components 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. Components will charge 
for time spent searching even if no responsive records are found or if 
the

[[Page 19709]]

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 cents per page. For electronic forms of duplication, other 
than a computer-generated printout, components will charge the direct 
costs of that duplication. Such 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 a component 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, 
components 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 are 
complementary. 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 a 
component determines or estimates that the fees to be charged under 
this section will amount to more than $25.00, the component 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. If only a portion of the fee can be estimated readily, the 
component 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. 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 a component 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 (Public Law 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.
    (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 a component 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 component may aggregate those requests and charge 
accordingly. Components 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, components 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, a component 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 a component 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 any component or agency within 30 calendar days of 
the date of billing, a component 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 component 
begins to process a new

[[Page 19710]]

request or continues to process a pending request from that requester.
    (4) When a component 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, components 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 component 
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.
    (2) To determine whether the first fee waiver requirement is met, 
components 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. Components 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, 
components 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. Components 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. Components 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 should address the 
factors listed in paragraphs (l) (2) and (3) of this section, insofar 
as they apply to each request. Components 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. Requests for the waiver or reduction of fees must 
be submitted along with the request or before processing of the request 
has been completed.


Sec. 2.107  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. 00-8837 Filed 4-11-00; 8:45 am]
BILLING CODE 6560-50-P