[Federal Register Volume 87, Number 221 (Thursday, November 17, 2022)]
[Proposed Rules]
[Pages 68946-68958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24678]
[[Page 68946]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 2
[OGC-2022-0885; FRL 5630-02-OGC]
RIN 2025-AA38
Freedom of Information Act Regulations Update; Phase II
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or agency) proposes
revisions to the agency's regulations under the Freedom of Information
Act (FOIA or Act). This action supports the agency's mission by
updating the process by which the public may access information about
EPA actions and activities.
DATES: Comments must be received on or before December 19, 2022.
ADDRESSES: You may send comments, identified by Docket ID No. OGC-2022-
0885, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of General Counsel Docket, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., Monday
through Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Christopher T. Creech, Office of
General Counsel, U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue NW, (2310A), Washington, DC 20460; telephone, 202-
564-4286; email, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Does this action apply to me?
III. Scope of This Action
IV. Background
V. Proposals for Clarity
VI. 2019 Phase I FOIA Regulations
VII. General Processing Changes
VIII. Environmental Justice Expedited Processing Criteria
IX. Fee-Related Changes
X. Statutory and Executive Orders Reviews
I. Public Participation
Submit your comments, identified by Docket ID No. OGC-2022-0885, at
https://www.regulations.gov (our preferred method), or the other
methods identified in the ADDRESSES section. Once submitted, comments
cannot be edited or removed from the docket. The EPA may publish any
comment received to its public docket. Do not submit to EPA's docket at
https://www.regulations.gov any information you consider to be
Confidential Business Information (CBI), Proprietary Business
Information (PBI), or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the
full EPA public comment policy; information about CBI, PBI, or
multimedia submissions; and general guidance on making effective
comments.
II. Does this action apply to me?
This discussion is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be regulated
by this action. This discussion includes the types of entities that the
EPA is now aware could potentially be regulated by this action. Other
types of entities not included could also be regulated. To determine
whether your entity is regulated by this action, you should carefully
examine the applicability criteria found in 40 CFR part 2. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the FOR FURTHER INFORMATION
CONTACT section.
III. Scope of This Action
This action proposes changes to EPA's FOIA regulations at 40 CFR
part 2. The proposed changes would alter the process by which
individuals and entities request records from EPA under the Act. EPA
proposes changes to clarify certain provisions and align with the FOIA
and with EPA and government-wide policy.
In the 2019 ``Freedom of Information Act Regulations Update,'' 84
FR 30028, July 26, 2019 (Phase I Rule), EPA stated its intention to
propose a second rulemaking phase to make discretionary and modernizing
changes. Consistent with that statement, EPA is seeking public comment
on the changes proposed in this document.
IV. Background
This action is the second phase in a two-phase process to update
the agency's FOIA regulations. On July 26, 2019, EPA issued the Phase I
Rule to ``bring EPA's regulations into compliance with nondiscretionary
provisions of the amended statute and reflect changes in the agency's
organization, procedure, or practice.'' 84 FR 30028.
V. Proposals for Clarity
A. Clarifying Reasonably Described Requests
EPA proposes to modify existing section 2.102(c) and move it to
section 2.102(b), first, to define more clearly what it means for a
FOIA request to reasonably describe the records sought and, second, to
clarify how EPA would treat a FOIA request that does not reasonably
describe the records sought. For the latter, this includes providing a
clear timeline during which a requester may modify a submission that
does not reasonably describe the records sought.
First, EPA proposes replacing ``A request should reasonably
describe the records the requester seeks in a way that will permit EPA
employees to identify and locate them'' with ``Requesters should
reasonably describe the records sought in sufficient detail to enable
agency personnel to locate them with a reasonable amount of effort'' to
more clearly define a request that is reasonably described. 5 U.S.C.
552(a)(3)(A) requires agencies to respond to ``any request for records
which (i) reasonably describes such records.'' The D.C. Circuit has
recognized that a FOIA request reasonably describes the records sought
``if it enabled a professional employee of the agency who was familiar
with the subject area of the request to locate the record with a
reasonable amount of effort.'' Truitt v. Department of State, 897 F.2d
540, 545 n.36 (D.C. Cir. 1990), quoting H.R. Rep. No. 93-876, 93d
Cong., 2d Sess. 5-6 (1974).
[[Page 68947]]
Incorporating this definition, which is used in legislative history
and supported in caselaw, would provide clarity to FOIA requesters
about how EPA reviews FOIA requests and applies the FOIA's
requirements. EPA does not intend that this proposal would affect the
EPA's existing processes or alter the FOIA's requirements.
Request for Comment 1: EPA seeks comment on whether the addition to
2.102(c) provides sufficient clarity.
Second, EPA proposes 20 calendar days as the time in section
2.102(c) a requester would be given to respond to EPA's notice that the
requester has not reasonably described the records sought. The existing
regulations state that EPA will afford a requester with an opportunity
to modify the request if EPA determines that the submission did not
reasonably describe the records sought. However, the existing
regulations do not specify how long a requester may take to modify
their request before EPA closes the request. See 40 CFR 2.102(c) (``A
request should reasonably describe the records the requester seeks in a
way that will permit EPA employees to identify and locate them.''). The
agency believes that this change would provide requesters with
additional guidance during this process, facilitate cooperation between
the EPA and the requester, and clarify EPA's process for reviewing FOIA
requests.
Based on EPA's experience, the proposed 20 calendar days timeline
would be sufficient for requesters to review and modify their requests
as appropriate. Although not required by the FOIA, EPA's regulations
allow requesters an opportunity to modify a request that does not
reasonably describe the records sought. EPA further notes that a
requester may resubmit a new request reasonably describing the records
sought, even after EPA closes a request upon the aforementioned 20-day
deadline expiring.
Request for Comment 2: EPA seeks comments on providing a 20
calendar day timeline for a requester to modify their request after EPA
has provided notice that EPA has determined that their request does not
reasonably describe the records sought.
B. Readability and Useful Information
EPA also proposes and seeks comment on several provisions that EPA
believes would enhance the readability, clarity, and usability of EPA's
FOIA regulations.
First, EPA proposes reorganizing, but not making substantive
changes to, 40 CFR 2.100(a) by moving to separate paragraphs the
sentences describing other regulations relevant to the release of
information. Those sentences relate to the access to confidential
business information and requests made under the Privacy Act of 1974.
Both sentences are purely informational. EPA believes this change would
improve readability by separately listing information that is useful
but unrelated to each other. This proposal would not change EPA's
processing of records under the FOIA.
Second, EPA proposes to create a new paragraph (f) in section 2.100
to direct the public to the agency's website (epa.gov/foia) for records
made publicly available in compliance with 5 U.S.C.
522(a)(2)(D)(ii)(II). This change would inform the public where they
may access publicly available information. EPA notes that this change
would not alter the agency's practices or responsibilities under the
FOIA.
Third, EPA proposes to consolidate the provisions in EPA's FOIA
regulations that discuss the timing of EPA's response to FOIA requests
to simplify and accurately represent EPA's obligations under the FOIA.
This change would combine into section 2.104(a) existing sections
2.101(c) and 2.102(a), and EPA proposes to directly incorporate into
2.104(a), the FOIA's language on timing of response from 5 U.S.C.
552(a)(6)(A)(i). EPA believes that allowing the statutory language to
speak for itself is the clearest statement of EPA's obligations and
clarifies ambiguities in the regulatory text. EPA also proposes to
highlight in the regulatory text that EPA will work with requesters to
come to an agreement regarding alternative timeframes for processing
the request when EPA provides notice pursuant to 5 U.S.C.
552(a)(6)(B)(i) and (ii).
In addition, EPA proposes to add to section 2.104(a)(2) that
requests submitted after 5:00 p.m. Eastern Time would be considered
received on the next business day. Existing section 2.101(d) says that
``Requesters submitting requests electronically must do so before 5:00
p.m. Eastern Time for the agency to consider the request as received on
that date.'' EPA would add on to this existing sentence, explaining how
EPA would treat a request a request submitted at or after 5:00 p.m. EPA
is not seeking feedback and does not propose to make changes to the
existing language regarding requests and appeals received before 5:00
p.m. Eastern Time. This addition is intended to clarify the existing
regulatory language and provide additional transparency to the public.
Parallel to this proposal, EPA proposes modifying section 2.108(b) to
state that appeals submitted after 5:00 p.m. Eastern Time would be
considered received on the next business day.
Request for Comment 3: EPA seeks comment on whether the proposed
reorganization, informational addition, and consolidation is clear.
C. Consistency With Government-Wide Policy
EPA proposes three changes that are intended to more closely align
with the Department of Justice's Template for Agency FOIA Regulations.
See Department of Justice, Template for Agency FOIA Regulations at
sections VIII and IX, https://www.justice.gov/oip/template-agency-foia-regulations (last updated February 22, 2017). These proposed changes
are found at sections 2.106, 2.108(d)(3), and 2.108(e)(1), which
discuss the preservation of records, handling appeals after FOIA
litigation, and the contents of adverse administrative appeals
decisions. EPA does not intend that these proposals would make any
substantive changes to EPA's practices or the regulatory requirements
in those provisions. These proposed changes are intended to reflect
existing best practices and ensure clarity of EPA's processes.
EPA proposes correcting 40 CFR 2.107(b), which discusses how
requesters make fee payments. The existing regulations state that
checks or money orders should be made out to the U.S. Environmental
Protection Agency. The updated language would say that requesters
should make checks and money orders out to the Treasury of the United
States. This proposal would only affect where FOIA requesters make
certain FOIA fee payments and is purely administrative in nature.
Finally, EPA also proposes revising all references to EPA's
electronic submission website, FOIAonline (www.FOIAonline.gov), to a
more general location, EPA's FOIA website (www.epa.gov/foia). EPA
proposes this change to ensure that the location of the platform to
receive FOIA submissions remains clear even after the decommissioning
of FOIA Online. Instead, EPA proposes to use its FOIA web page
(epa.gov/foia) to identify for requesters the new electronic FOIA
request submission platform, providing a prominent and easily
accessible link. Please note also that the sunsetting of FOIA online is
not a part of this rulemaking, and EPA is neither proposing nor asking
for comments on that process here.
Request for Comment 4: EPA seeks comment on whether the changes
detailed above improve the readability, usefulness, and clarity of
those provisions.
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VI. 2019 Phase I FOIA Regulations
Citizens for Responsibility and Ethics in Washington (CREW) and
Center for Biological Diversity (CBD) filed lawsuits against EPA
challenging aspects of the 2019 FOIA Regulations Update. Citizens for
Responsibility and Ethics in Washington v. EPA, 1:19-cv-02181. As part
of the agreement to settle those claims, EPA agreed to seek comment on
40 CFR 2.103(b) and on whether to reinstate methods of submissions
previously listed at 40 CFR 2.101(a).
A. Description of Determinations Under the FOIA
EPA proposes and seeks comment on removing the clause in 40 CFR
2.103(b) describing the term ``determinations required by 5 U.S.C.
552(a)(6)(A).'' Existing section 2.103(b) states, ``[Listed positions
within the EPA] are authorized to make determinations required by 5
U.S.C. 522(a)(6)(A), including to issue final determinations whether to
release or withhold a record or a portion of a record on the basis of
responsiveness or under one or more of the exemptions under the FOIA,
and to issue `no records' responses.'' There has been some confusion
regarding the meaning of this clause, which has led to inaccurate
understandings of EPA's authority regarding FOIA determination. EPA
believes that removing this clause would ensure clarity and allow the
Act to speak for itself.
Request for Comment 5: EPA seeks comment on whether to remove the
explanatory clause in 40 CFR 2.103(b) that begins with ``including''
and ends with ``responses.''
B. Previous Methods of Submission
EPA seeks comment on whether to reinstate any methods of FOIA
request submission that the EPA removed through the issuance of the
2019 FOIA Regulations Update. See 2019 FOIA Regulations Update, 84 FR
30028 at 30030. EPA does not propose changes to 40 CFR 2.101(a).
The 2019 FOIA rule removed submission methods previously allowed
via U.S. mail and email to the Regions, and email requests to EPA
headquarters. Id. The 2019 FOIA Rule removed those methods of
submission to ``reduce the number of misdirected requests'' because the
``2007 Amendments also decreased the amount of time an agency may take
to route a request to the appropriate component . . . .'' 2019 FOIA
Regulations Update, 84 FR 30028 at 30030. The 2019 FOIA Rule designated
the National FOIA Office as the location to which mailed FOIA requests
must be submitted; the Rule did not centralize FOIA processing in that
office.
Since the 2019 FOIA Regulations Update was implemented, EPA's
National FOIA Office has efficiently implemented centralized intake of
FOIA requests providing enhanced transparency and clarity to
requesters. As a result, EPA more fully realized its goal to provide
first-rate service and communication to the FOIA requester community.
Request for Comment 6: EPA requests comment on whether EPA should
reinstate any of the methods of submission, located at 40 CFR 2.101(a),
that were removed by the 2019 FOIA Rule.
VII. General Processing Changes
A. Ordinary Search Cut-Off Date
EPA proposes to change the ``ordinary'' search cut-off date
identified in section 2.103(a) from the date ``the request was
received'' to ``the Agency begins its search for responsive records.''
A ``cut-off'' date delineates the scope of a FOIA request by treating
records created after that date as not responsive to the FOIA request.
See Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)
(observing that ``[t]o require an agency to adjust or modify its FOIA
responses based on post-response occurrences could create an endless
cycle of judicially mandated reprocessing''). Under EPA's FOIA
regulations, the ordinary cut-off date identified in 40 CFR 2.103(a)
informs requesters of the cut-off date that the agency most typically
uses. ``The Agency will inform the requester if any other date is
used.'' 40 C.F.R 2.103(a).
Nothing in the existing or proposed FOIA regulations precludes the
agency from evaluating the FOIA request for the most appropriate cut-
off date or a FOIA requester from identifying a date range for the
records sought.
Request for Comment 7: EPA seeks comment on whether to change the
ordinary search cut-off date from the date the FOIA request is received
to the date the agency begins the search for responsive records.
B. Aggregation of Requests
EPA proposes adding a provision stating that EPA may aggregate FOIA
requests when EPA reasonably believes that multiple requests--submitted
either by a requester or by a group of requesters acting in concert--
constitute a single request that would otherwise give rise to unusual
circumstances and the requests involve related matters.
5 U.S.C. 552(a)(6)(B)(iv) provides authority for such a provision,
stating ``Each agency may promulgate regulations . . . providing for
the aggregation of certain requests . . . if the agency reasonably
believes that such requests actually constitute a single request[.]''
Mirroring the Act, EPA would only aggregate requests that are submitted
by the same requester or group of requesters and the requests involve
related manners. EPA is not proposing changes to the existing provision
at 40 CFR 2.107(i), which allows for aggregation for fee-avoidance
reasons.
Request for Comment 8: EPA requests comment on whether to add the
request aggregation provision allowed for in 5 U.S.C. 552(a)(6)(B)(iv).
C. Assigning Tracking Numbers
EPA proposes a provision stating that EPA may assign multiple
tracking numbers to a request with distinct parts that will be
processed by separate regions or program offices. EPA would notify the
requester of the separate tracking numbers for the distinct parts of
the request, which thereafter would be processed and responded to
separately.
This provision would reduce unnecessary coordination on unrelated
records among different EPA offices and regions when processing a
single request with multiple unrelated parts. This includes
communicating with the requester to clarify the request, seeking fee
assurance, conducting the records search and review, and issuing
interim and final responses.
D. Revised Methods of Submission of Administrative Appeals
EPA proposes modifying the methods of submission of FOIA appeals,
located in the existing regulations at 40 CFR 2.104(j) and 2.108(a) in
the proposed regulations, to match the methods of submission of FOIA
requests. This change would streamline EPA's receipt and handling of
FOIA appeals.
VIII. Environmental Justice Expedited Processing Criteria
EPA proposes a provision to allow requesters to seek expedited
processing of their request if the records sought pertain to an
environmental justice-related need and will be used to inform an
affected community. 5 U.S.C. 552(a)(6)(E)(i) provides that EPA may
issue regulations ``providing for expedited processing of requests for
records (I) in cases in which the person requesting the records
demonstrates a compelling need; and (II) in other cases determined by
the agency.'' (emphasis added). The Act defines what constitutes a
``compelling need,'' id. at
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section 552(a)(6)(E)(v), and does not limit the ``other cases'' that
they agency may determine merit expedited processing.
EPA has recognized environmental justice concerns for many decades
and has defined Environmental justice (EJ) as the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation and enforcement of environmental laws, regulations, and
policies. EPA recognizes the role timely access to information
contained in EPA records may play in the opportunity for meaningful
involvement by communities that potentially experience
disproportionately high and adverse human health or environmental
effects.
This provision would be in addition to and not modify the expedited
processing for requests demonstrating a ``compelling need,'' which the
FOIA provides at 5 U.S.C. 552(a)(6)(E)(i)(I). This proposed new
expedited processing category would target an understood need for
timely access for communities with environmental justice concerns to
information, which may not be met by the statutorily provided
``compelling need'' categories.
Request for Comment 9: EPA seeks comment on whether to include a
new expedited processing category for requests seeking environmental
justice-related information and whether there is an unmet need for
prompt access to information in communities affected by environment
justice concerns. For example, EPA requests comment on the frequency
and types of contact that occur with members of communities affected by
environmental justice concerns and how information for which there is a
pressing need is typically utilized by members of those communities.
EPA proposes narrowly tailored criteria to achieve the intended
goal. To qualify for expedited processing under this proposed
provision, a requester would need to show: (1) a pressing need; (2) to
inform a community potentially experiencing disproportionately high and
adverse human health or environmental effects; (3) about those effects;
(4) affecting, or potentially affecting, that community.
Request for Comment 10: EPA seeks comment on whether EPA should
further define or use another definition or term to more accurately
identify communities for which there is a need for more rapid access to
EPA records containing information regarding environmental harms
affecting those communities.
In evaluating requests for expedited processing under this
expedited processing category, EPA would consider the requester's
intent to effectively convey the information to members of the
community that is potentially experiencing disproportionately high and
adverse human health or environmental effects. EPA would not require
that a requester be a member of the affected community, although
membership in the community may be relevant to the requester's intent
and ability to convey the information to the community. EPA would
consider the requester's ability to effectively convey the information
received about the community back to the community within a timeframe
sufficient to meet the identified pressing need. EPA proposes that a
requester would not have to be a formal member of the news media to
qualify for this expedited processing category.
EPA further proposes that the need to inform the affected community
would not include a request where the disclosure is primarily in the
commercial interest of the requester. EPA intends that this criterion
would help tailor the provision by focusing on requests for which the
purpose of the request is to share information with members of the
affected community.
Request for Comment 11: EPA seeks feedback on whether the proposed
criteria properly target EPA's stated intent.
To implement this provision, EPA could use EJScreen's
``Supplemental Indexes'' tool to assess a requester's claim that a
particular community may be experiencing disproportionately high and
adverse human health or environmental effects. EJScreen is an
environmental justice mapping and screening tool that provides EPA with
a nationally consistent dataset and approach for combining
environmental and demographic indicators. EJScreen provides a way to
display this information and includes a method for combining
environmental and demographic indicators into EJ indexes. EJScreen's
``Supplemental Indexes'' are twelve indexes calculated by combing
twelve environmental indicators and a five-factor demographic index.
The five socioeconomic indicators considered are percent low-income,
percent limited English-speaking, percent less than high school
education, percent unemployed, and low life expectancy. EJScreen may
also be a valuable tool for requesters to assess whether the community
about which they are seeking records may be affected by
disproportionately high and adverse human health or environmental
effects. More information regarding EJScreen is available here: https://www.epa.gov/ejscreen/environmental-justice-indexes-ejscreen.
Request for Comment 12: EPA seeks comment on whether EPA should
require requesters to identify in a particular manner the relevant
community with environmental justice concerns. EPA also seeks comment
on methods and approaches to evaluating whether a particular community
is potentially experiencing disproportionately high and adverse human
health or environmental effects.
EPA also proposes that if the agency grants a request for expedited
processing under the environmental justice expedited processing
category, the agency will also grant the requester a fee waiver for the
request under 5 U.S.C. 552(a)(4)(A)(iii), and EPA's FOIA regulations,
at section 2.107(l) of the existing regulations and section 2.107(n) of
the proposed regulations. EPA believes that meeting the standard and
factors provided in the proposed new expedited processing criteria
would result in the requester having met the burden set forth by the
FOIA to qualify for a waiver of fees. 5 U.S.C. 552(a)(4)(A)(iii)
(``[D]isclosure of the 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.''). EPA also recognizes the
potential efficiencies for both requesters and the agency in this
approach.
Request for Comment 13: EPA seeks comment on whether EPA should
provide fee waivers to requests that qualify for the proposed
environmental justice expedited processing provision.
IX. Fee-Related Changes
A. Fee Rates Update
EPA proposes modernizing its fee rates by establishing fee rates
tied to the U.S. Office of Personnel and Management's General Schedule
(GS) scale. EPA proposes two rates for agency personnel time spent
processing FOIA requests, with one rate for grades GS-12 and below and
a second rate for those with grades GS-13 and above, both adjusted for
the value of benefits, expressed in quarter-hour rates, and rounded to
the nearest $1 increment. As of the date of signature, the proposed
rates would be calculated as such:
Employees GS-12 and Below
Average Quarter-Hour Rate for GS-9 to 12 ($8.83) + Benefits (16% or
$1.41) = $10.24 = (rounded to the nearest $1 increment) $10.00/quarter
hour
[[Page 68950]]
Employees GS-13 and Above
Average Quarter-Hour Rate for GS-13 to 15 ($15.24) + Benefits (16%
or $2.43) = $17.67 = (rounded to the nearest $1 increment) $18.00/
quarter-hour
The FOIA directs agencies to issue FOIA regulations ``specifying
the schedule of fees applicable to the processing of requests[.]'' 5
U.S.C. 522(a)(4)(A)(i). The Office of Management and Budget's (OMB's)
Fee Guidelines provide that agencies may charge for the direct costs of
expenditures that the agency incurs, including staff time spent on
search, duplication, and review of records. See OMB, Uniform Freedom of
Information Act Fee Schedule Guidelines, 52 FR 10012, 10017, March 27,
1987 (hereinafter OMB Fee Guidelines). The OMB Fee Guidelines also
provide that staff time can be quantified by using the salary of the
employee plus 16% to cover benefits. Id.
Raising the fee rates and tying them to the GS-scale will more
accurately reflect the EPA's costs and align with the OMB Fee
Guidelines. Id. at 10018 (``Agencies should charge fees that recoup the
full allowable direct costs they incur.''). Fee rates in existing EPA's
regulations include three categories: clerical ($4/quarter-hour);
professional ($7/quarter-hour); and managerial ($10.25/quarter-hour).
See 40 CFR 2.107(c)(2)(i)(B). EPA's existing fee rates have not been
updated since at least 2002. Consequently, the existing rates no longer
recoup the cost of processing a FOIA request and the clerical rate is
obsolete as it is rarely used given the substantial transition to
digital records and electronic processing and response mechanisms.
EPA proposes that its fee rates would automatically update with
OPM's publication in the Federal Register of new GS-scale rates. See
OPM, January 2022 Pay Schedules, 87 FR 26376, May 4, 2022. This
practice is consistent with the OMB Fee Schedule and the practices of
other Federal agencies. EPA anticipates that this approach would be a
predictable and efficient approach to establishing a fee rate.
Alternatively, EPA could set a stagnant rate that would not
automatically update with changes to the GS-scale. EPA expects that the
stagnant rate alternative would be more burdensome than the proposed
approach because EPA would need to update its FOIA regulations
regularly to ensure that it is charging FOIA fees to recoup its costs.
EPA recognizes that the stagnant rate approach may provide more clarity
for requesters by not requiring a calculation of the adjustment. To
mitigate this, if it finalizes the automatically adjusting rate as
proposed, EPA intends to publish the current fee rate on its FOIA
website (epa.gov/foia) and will update that publication as the GS-scale
changes.
Request for Comment 14: EPA requests comment on whether to
modernize the fee schedule to two categories based on average GS
levels.
B. Minimum Fee Threshold
EPA proposes increasing the minimum fee threshold to an amount
calculated by formula, which, as of the publication of this rulemaking
is $250. The formula would enable the minimum fee threshold to reflect
EPA's costs as they increase in the futures. FOIA prohibits collection
of fees if processing the payment is costlier than the fee itself. See
5 U.S.C. 552(a)(4)(A)(iv)(I). Existing EPA regulations, section
2.107(d)(4), have a minimum fee threshold of $14, meaning that EPA will
charge FOIA fees if the total chargeable fees sum to more than $14.
However, EPA calculates that the existing cost to process a payment is
around $90. Thus, raising the minimum fee threshold will ensure that
EPA is only charging for fees that are more than EPA's cost to process
the fees.
Raising the minimum fee threshold to $250 would reduce the burden
and tasks associated with processing fees and seeking assurance of
payment and advanced payment. Alternatively, EPA could set a minimum
fee threshold to an amount calculated by formula, which, as of the
publication of this rulemaking is $90, the estimated cost of processing
payment.
To achieve an automatically adjusting minimum fee threshold, which
is currently calculated as $250, EPA proposes to utilize a formula that
applies a fourteen (14) times multiplier to the rate set in 40 CFR
2.107(e)(2)(ii)(B). This ties the minimum fee threshold to the fee
rate, which is itself based on the GS-scale. OPM adjusts the GS-scale
annually. This proposal would allow for a minimum fee threshold that is
sustainable and remains effective as fee rates and personnel costs
increase, without the need to publish updates to the regulations. This
number will be on the EPA website and updated as there are increases to
the GS-scale. For more information about how the fee rate is calculated
see section VII.A. of this preamble. As of the date of signature, the
proposed minimum fee threshold would be calculated as follows:
Fee rate listed in 40 CFR 2.107(f)(2)(ii)(B) ($18.00) x 14 = $252 =
(rounded to the nearest $5 increment) $250
Request for Comment 15: EPA requests comment on whether to increase
the minimum fee threshold to an amount calculated by formula, which, as
of the publication of this rulemaking is $250.
C. Automatic Agreement To Pay Fees
EPA proposes removing the automatic agreement to pay fees provision
from the EPA's FOIA regulations. Submission of a request is considered
an agreement to pay fees up to $25 in the existing EPA FOIA
regulations. Because of the proposal to raise the minimum fee threshold
to an amount calculated by formula, which, as of the publication of
this rulemaking is $250, EPA would also need to adjust the existing
automatic agreement to pay fees threshold.
EPA proposes to remove the automatic agreement to pay fees
provision and instead seek assurance of payments from requesters if the
actual or anticipated fees for the request equal or exceed the minimum
fee threshold. EPA notes that the FOIA does not require agency FOIA
regulations to include an automatic agreement to pay fees provision.
Alternatively, EPA could consider the submission of a FOIA request
an automatic agreement to pay fees up to some amount above $250. EPA
recognizes that an automatic agreement to pay $250 or some higher
amount may be a deterrent to submitting a FOIA request for some members
of the public, whether or not they are ultimately charged fees, and
that a better practice will be for EPA to notify requesters when EPA's
chargeable costs are anticipated to go above the minimum fee threshold
and to seek an assurance of payment as described below.
Request for Comment 16: EPA requests comment on whether to remove
the automatic agreement to pay fees provision from the FOIA
regulations. EPA also requests comment on whether to increase the
automatic agreement to pay fees commensurate with the minimum fee
threshold.
D. Assurance of Payment Threshold
EPA proposes raising the assurance of payment threshold to an
amount calculated by formula, which, as of the publication of this
rulemaking is $250. When EPA estimates fees or accumulates actual fees
equaling or exceeding the assurance of payment threshold, EPA seeks
from a requester an assurance that the requester will pay the fees
associated with the FOIA request.
[[Page 68951]]
Existing EPA regulations require assurance of payment when the
estimated or actual fees are at or above $25. As noted above, EPA also
proposes to raise the minimum fee threshold to $250. As such, keeping
an assurance of payment threshold of $25 would be inconsistent with
that proposal.
EPA proposes tying the assurance of payment threshold to the
minimum fee threshold. EPA would directly referencing the minimum fee
threshold citation to accomplish this. The intent of this approach
would be to ensure that, as explained above, the assurance of payment
threshold rises commensurate with the minimum fee threshold and the fee
rate. This proposal could reduce confusion for the requester and set
clear steps and guideposts for assessing fees.
Request for Comment 17: EPA requests comment on whether to set the
assurance of payment threshold to the same amount as the minimum fee
threshold.
E. Advanced Payment Threshold
EPA proposes increasing the advanced payment threshold to an amount
that would currently calculate to $425 and proposes a formula for
calculating the advance payment threshold that will be self-escalating
as EPA's costs increase in future years. When EPA estimates fees or
accumulates actual fees equaling or exceeding the advanced payment
threshold, EPA may seek advanced payment from a requester of the
estimated or actual fees associated with the FOIA request.
The FOIA provides that agencies can establish guidelines for when
and describes when agencies can require advanced payment of fees from
requesters. See 5 U.S.C. 552(a)(4)(A)(v)(c). The FOIA specifies two
situations in which an agency may require advanced payment: ``the
requester has previously failed to pay fees in a timely fashion, or the
agency has determined that the fee will exceed $250.'' Id. The advanced
payment threshold, as described here, references that second criteria,
the estimated or actual fee. EPA is not proposing modification to the
advanced payment requirements for requesters who have failed to pay
fees in a timely fashion.
Similar to the minimum fee threshold, EPA would tie the advanced
payment threshold to the fee rate and round that amount to the nearest
$5 increment. This means that the advance payment threshold would be
calculated based on the fee rate, which is itself based on the GS-scale
that is adjusted annually.
EPA chose a twenty-five (25) times multiplier to achieve an initial
advanced payment threshold of $450. $450 represents a proportional
increase with the fee rate. The fee rate, as explained above, reflects
agency personnel costs. The proposed advanced payment threshold thus
represents a level at which EPA believes it would begin to see
administrative burdens in processing a request that continues to
accumulate uncollected fees.
As of the date of signature, the proposed advanced payment
threshold would be calculated as follows:
Fee rate listed in proposed 40 CFR 2.107(f)(2)(ii)(B) ($18.00) x 25 =
$450
Request for Comment 18: EPA requests comment on whether to increase
the minimum fee threshold to an amount calculated by formula, which, as
of the publication of this rulemaking is $450, and automatically
adjusting with the proposed fee rate.
EPA proposes to reorganize the 40 CFR 2.107. EPA does not intend
that this reorganization make any substantive modifications to the
regulatory or statutory requirements. The intent of these changes is to
consolidate duplicative information and place related provisions in
close proximity to improve readability and provide clarity. For
example, EPA's proposal would move information regarding the type of
fees, the types of requests, what fees the agency may assess for types
of requests, and how EPA calculates those fees into two subsections:
(1) types of requests and types of fees that may be assessed to those
requests and (2) types of fees and how EPA calculates those fees.
Request for Comment 19: EPA requests comment on reorganizing and
removing duplicative information from EPA's FOIA regulations.
F. Estimated or Actual Fee Assessment
EPA proposes adding language stating that EPA's reassessment of
actual or estimated fees may result in EPA re-seeking assurance of
payment or advanced payment. Adding this provision would provide
clarity and inform the public regarding EPA's practices. The intent of
this proposal is to describe a scenario where EPA has previously
informed the requester of the amount of actual or estimated fees and,
after further processing, EPA has updated its actual or estimated fee
assessment.
EPA notes that providing a requester with the most up-to-date fee
calculations leads to transparency for the requester. Advancement
through processing steps may result in new or revised circumstances.
For example, EPA may perform a search that returns more or less records
than initially estimated. If this is the case, EPA would inform the
requester of the changed circumstances and latest information and
accordingly, if appropriate, seek additional fee guarantees from the
requester.
Request for Comment 20: EPA requests comment on whether to state
that a reassessment of actual or estimated fees may trigger a need for
advanced payment or assurance of payment.
G. Failure To Pay Charged Fees
EPA proposes editing for clarity and revising the provisions
applicable to delinquent requesters. Existing EPA regulations discuss
failure to pay fees in several separate locations. EPA would
consolidate these provisions into 40 CFR 2.107(k). EPA would also add a
sentence stating that the agency may share information regarding
delinquent requesters with other Federal agencies.
Request for Comment 21: EPA requests comments on editing for
clarity and revising the provisions applicable to delinquent
requesters.
H. Requests for Waiver and Reduction of Fees
EPA proposes to incorporate a requirement that a requester must
submit a statement, certified to be true and correct to the best of the
requester's knowledge and belief, explaining in detail the basis for
the fee waiver request. Existing EPA regulations require that requests
for expedited processing must be made through a statement certified to
be true and correct. See 5 U.S.C. 552(a)(6)(E)(vi). Aligning these
requirements could streamline the practice and ensure the information a
requester submits to EPA presents an accurate representation.
Request for Comment 22: EPA requests comments on incorporating a
requirement that a requester must submit a statement, certified to be
true and correct to the best of the requester's knowledge and believe,
explaining in detail the basis for the fee waiver request.
X. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
[[Page 68952]]
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Submission
of a FOIA request is a voluntary action that any member of the public,
including small entities, can elect to do and the rule relates to the
procedures for submitting and processing a FOIA request for EPA
records.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandates as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
Indian Tribal governments or on the relationship between the national
government and the Indian Tribal governments. Thus, Executive Order
13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color) and low-income
populations.
The EPA believes that this type of action does not concern human
health or environmental conditions and therefore cannot be evaluated
with respect to potentially disproportionate and adverse effects on
people of color, low-income populations and/or Indigenous peoples.
Although this action does not concern human health or environmental
conditions, the EPA identifies and addresses environmental justice
concerns by proposing a provision to allow requesters to seek expedited
processing of their request if the records sought pertain to an
environmental justice-related need and will be used to inform an
affected community. See section VII of this preamble.
List of Subjects in 40 CFR Part 2
Environmental protection, Administrative practice and procedure,
Confidential business information, Freedom of information, Government
employees.
Michael S. Regan,
Administrator.
For the reasons set out in the preamble, title 40 of the Code of
Federal Regulations, part 2, is proposed to be amended as follows.
PART 2--PUBLIC INFORMATION
0
1. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 552, 552a, 553; 28 U.S.C. 509, 510, 534; 31
U.S.C. 3717.
0
2. Subpart A of Part 2 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 to file requests for records.
2.102 Procedures for making requests.
2.103 Responsibility for responding to requests.
2.104 Responses to requests.
2.105 [Reserved]
2.106 Preservation of records.
2.107 Fees.
2.108 Administrative appeals.
2.109 Other rights and services.
Subpart A--Procedures for Disclosure of Records Under the Freedom
of Information Act
Sec. 2.100 General provisions.
(a) General. 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.
Information routinely provided to the public as part of a regular EPA
activity may be provided to the public without following this Subpart.
(b) Other Regulatory Provisions. (1) 40 CFR Subpart B contains
requirements pertaining to the confidentiality of business information.
(2) 40 CFR part 16 contains requirements pertaining to Privacy Act
requests.
(c) Statutory-based fee schedule programs. EPA will inform the
requester of the steps necessary to obtain records from agencies
operating statutory-based fee schedule programs, such as, but not
limited to, the Government Printing Office or the National Technical
Information Service.
(d) National FOIA Office. The Chief FOIA Officer designates the
office that performs the duties of the National FOIA Office. The
National FOIA Office reports to the Chief FOIA Officer.
[[Page 68953]]
(e) FOIA Public Liaison. The Chief FOIA Officer designates the FOIA
Public Liaisons. The FOIA Public Liaisons report to the Chief FOIA
Officer. A FOIA Public Liaison is responsible for assisting in reducing
delays, increasing transparency and understanding of the status of
requests, and assisting in the resolution of disputes. A FOIA Public
Liaison is an official to whom a requester can raise concerns about the
service the requester received from the FOIA Requester Service Center.
The public can find more information about the FOIA Public Liaisons at
EPA's website.
(f) Other record availability. Records required by FOIA to be made
available for public inspection and copying are accessible through
EPA's FOIA website, http://www.epa.gov/foia. EPA also proactively
discloses records and information through the Agency's website,
www.epa.gov.
Sec. 2.101 Where to file requests for records.
(a) Requesters must submit all requests for records from EPA under
the FOIA in writing and by one of the following methods:
(1) EPA's FOIA submission website, linked to at www.epa.gov/foia;
(2) An electronic government submission website established
pursuant to 5 U.S.C. 552(m), such as FOIA.gov;
(3) U.S. Mail sent to the following address: National FOIA Office,
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW
(2310A), Washington, DC 20460; or
(4) Overnight delivery service to National FOIA Office, U.S.
Environmental Protection Agency, 1200 Pennsylvania NW, Room 7309C,
Washington, DC 20460.
(b) EPA will not treat a request submitted by any method other than
those listed in Sec. 2.101(a) as a FOIA request, and the Agency will
not re-route such a request.
(c) The requester or requester organization must include the full
name of their point of contact and their mailing address for EPA to
process the request. For all requests, requesters should provide an
email address and daytime telephone number whenever possible. For
requests submitted through EPA's FOIA submission website or as provided
by an electronic government submission website established pursuant to
5 U.S.C. 552(m), requesters must include an email address. For requests
submitted through U.S. Mail, the requester must mark both the request
letter and envelope ``Freedom of Information Act Request.''
(d) 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
website for Headquarters or the Regions. Each index will be updated
regularly, at least quarterly, with respect to newly-included records.
(e) 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 website, located at http://www.epa.gov, or, upon request, through
other electronic means. EPA will also include on its website the
current subject matter index of all such records.
Sec. 2.102 Procedures for making requests.
(a) EPA employees may attempt in good faith to comply with oral
requests for inspection or disclosure of EPA records that are publicly
available under Sec. 2.201(a) and (b), but such requests are not
subject to the FOIA or this Part.
(b)(1) Requesters should reasonably describe the records sought in
sufficient detail to enable agency personnel to locate them with a
reasonable amount of effort.
(2) If EPA determines that the request does not reasonably describe
the requested records, EPA will tell the requester either what
additional information the requester needs to provide or why the
request is otherwise insufficient. EPA will also give the requester an
opportunity to discuss and modify the request to meet the requirements
of Sec. 2.102(b)(1). If the requester fails to modify the request to
reasonably describe the requested records sought within 20 calendar
days, EPA will not process the submission and close the request. If the
requester does modify the submission to reasonably describe the
requested records, EPA will consider the request received as of the
date the modification is received by EPA.
(3) Whenever possible, a request should include specific
information about each record sought, such as the date, title or name,
author, recipient, and subject matter. If known, the requester should
include any file designations or descriptions for the records that the
requester wants. The more specific the requester is about the records
or type of records that the requester wants, the more likely EPA will
be able to identify and locate records responsive to the request.
Sec. 2.103 Responsibility for responding to requests.
(a) In general. Upon receipt of a FOIA request under Sec.
2.101(a), the National FOIA Office will assign the request to an
appropriate office within the Agency for processing. To determine which
records are within the scope of a request, an office will ordinarily
include only those records in the Agency's possession as of the date
that the Agency begins its search. The Agency will inform the requester
if any other date is used.
(b) Authority to issue final determinations. The Administrator,
Deputy Administrators, Assistant Administrators, Deputy Assistant
Administrators, Regional Administrators, Deputy Regional
Administrators, General Counsel, Deputy General Counsels, Regional
Counsels, Deputy Regional Counsels, and Inspector General or those
individuals' delegates, are authorized to make determinations required
by 5 U.S.C. 552(a)(6)(A).
(c) Authority to grant or deny fee waivers or requests for
expedited processing. EPA's Chief FOIA Officer or EPA's Chief FOIA
Officer's delegates are authorized to grant or deny requests for fee
waivers or requests for expedited processing.
(d) Consultations and referrals. When a request to EPA seeks
records in EPA's possession that originated with another Federal
agency, the EPA office assigned to process the request shall either:
(1) In coordination with the National FOIA Office, consult with the
Federal agency where the record or portion thereof originated and then
respond to the request, or
(2) With the concurrence of the National FOIA Office, refer any
record to the Federal agency where the record or portion thereof
originated. The National FOIA Office will notify the requester whenever
all or any part of the responsibility for responding to a request has
been referred to another agency.
(e) Law enforcement information. Whenever a requester makes a
request for a record containing information that relates to an
investigation of a possible violation of law and the investigation
originated with another agency, the assigned office, with the
concurrence of the National FOIA Office, will refer the record to that
other agency or consult with that other agency prior to making any
release determination.
[[Page 68954]]
(f) Assigning tracking numbers. EPA may assign multiple tracking
numbers to a FOIA request that contains unrelated parts that will be
processed separately by multiple regions or headquarters program
offices.
Sec. 2.104 Responses to requests.
(a) Timing of response. (1) Consistent with 5 U.S.C. 552(a)(6)(A)
and upon any request for records made pursuant to this subpart, EPA
shall determine within 20 working days after receipt of any such
request whether to comply with such request and shall immediately
notify the person according to this section.
(2) A requester submitting a request electronically must do so
before 5:00 p.m. Eastern Time for the Agency to consider the request as
received on that date, and a request submitted electronically at or
after 5:00 p.m. Eastern Time will be considered received by the
National FOIA Office on the next business day.
(3) The timeframe for response may be extended if unusual
circumstances exist per paragraph (f) of this section, including when
EPA asserts unusual circumstances and arranges an alternative timeframe
with the requester, or exceptional circumstances exist per paragraph
(g) of this section. The timeframe for response may be tolled per
paragraph (e) of this section.
(b) Agency failure to respond. If EPA fails to respond to the
request within the statutory time-period, or any authorized extension
of time, the requester may seek judicial review to obtain the records
without first making an administrative appeal.
(c) Acknowledgment of request. On receipt of a request, the
National FOIA Office ordinarily will send a written acknowledgment
advising the requester of the date the Agency received the request and
of the processing number assigned to the request for future reference.
(d) Multitrack processing. The Agency uses three or more processing
tracks by distinguishing between simple and complex requests based on
the amount of work, time needed to process the request, or both,
including limits based on the number of pages involved. The Agency will
advise the requester of the processing track in which the Agency placed
the request and the limits of the different processing tracks. The
Agency may place the request in a slower track while providing the
requester with the opportunity to limit the scope of the request to
qualify for faster processing within the specified limits of a faster
track. If the Agency places the request in a slower track, the Agency
will contact the requester.
(e) Tolling the request. EPA shall not toll the processing time-
period except:
(1) The Agency may toll the processing time-period one time while
seeking clarification from the requester; or
(2) The Agency may toll the processing time-period as many times as
necessary to resolve fee issues.
(f) Unusual circumstances. (1) When the Agency cannot meet
statutory time limits for processing a request because of ``unusual
circumstances,'' as defined in the FOIA, and the time limits are
extended on that basis, the Agency will notify the requester in
writing, as soon as practicable, of the unusual circumstances and of
the date by which processing of the request should be completed.
(2) If the 20 working-day period is extended, EPA will give the
requester an opportunity to limit the scope of the request, modify the
request, or agree to an alternative time-period for processing, as
described by the FOIA.
(3) EPA will provide contact information for its FOIA Public
Liaison to assist in the resolution of any disputes between the
requester and the Agency, and the Agency will notify the requester of
their right to seek dispute resolution services from the Office of
Government Information Services within the National Archives and
Records Administration.
(g) Expedited processing. (1) EPA will take requests or appeals out
of order and give expedited treatment whenever EPA determines that such
requests or appeals involve a compelling need, an environmental
justice-related need, or both.
(i) A compelling need is defined as either:
(A) 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
(B) 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.
(ii) For purposes of this provision, an environmental justice-
related need means a pressing need to inform a community that is
potentially experiencing disproportionately high and adverse human
health or environmental effects.
(A) The Agency will consider whether the requested records relate
to actual or alleged Federal government activity, including
environmental information or data.
(B) The Agency will consider the requester's ability and intention
to effectively convey the information to members of the affected
community, taking into account, for example, the requester's
relationship to the community or its members, expertise in the subject
matter, or other relevant knowledge and experiences.
(C) A pressing need to inform an affected community does not
include requests where the disclosure is primarily in the commercial
interest of the requester.
(D) If the Agency grants a request for expedited processing under
paragraph (g)(1)(ii) of this section, the Agency will also waive fees
established under Sec. 2.107(f) for the request.
(2) Requesters must make a written request for expedited processing
at the time of the initial request for records or at the time of
appeal.
(3) If the requester seeks expedited processing, the requester must
submit a statement, certified to be true and correct to the best of the
requester's knowledge and belief, explaining in detail the basis for
the request.
(i) For example, if the requester fits within the category
described in paragraph (g)(1)(i)(B) of this section and is not a full-
time member of the news media, the requester must establish that they
are a person whose primary professional activity or occupation is
information dissemination, although it need not be the requester's sole
occupation.
(ii) If the requester fits within the category described in
paragraph (g)(1)(i)(B) of this section, the requester 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 the request for
expedited processing, the Chief FOIA Officer, or the Chief FOIA
Officer's delegates, will decide whether to grant the request and will
notify the requester of the decision. If the Agency grants the request
for expedited processing, the Agency will give the request priority and
will process the request as soon as practicable. If the Agency denies
the request for expedited processing, the Agency will act on any appeal
of that decision expeditiously.
(h) Grants of requests. Once the Agency determines to grant a
request in whole or in part, it will release the records or parts of
records to the requester and notify the requester of any
[[Page 68955]]
applicable fee charged under Sec. 2.107. The office will annotate
records released in part, whenever technically feasible, with the
applicable FOIA exemption or exemptions at that part of the record from
which the exempt information was deleted.
(i) Adverse determinations of requests. When the Agency makes an
adverse determination, the Agency will notify the requester of that
determination in writing. Adverse determinations include:
(1) A decision that the requested record is exempt from disclosure,
in whole or in part;
(2) A decision that the information requested is not a record
subject to the FOIA;
(3) A decision that the requested record does not exist or cannot
be located;
(4) A decision that the requested record is not readily
reproducible in the form or format sought by the requester;
(5) A determination on any disputed fee matter, including a denial
of a request for a fee waiver; or
(6) A denial of a request for expedited processing.
(j) Content of final determination letter. The appropriate official
will issue the final determination letter in accordance with Sec.
2.103(b) and will include:
(1) The name and title or position of the person responsible for
the determination;
(2) A brief statement of the reason or reasons for the denial,
including an identification of records being withheld (either
individually or, if a large number of similar records are being denied,
described by 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;
(4) A statement that an adverse determination may be appealed under
Sec. 2.108 and description of the requirements for submitting an
administrative appeal; and
(5) A statement that the requester has the right to seek dispute
resolution services from an EPA FOIA Public Liaison or the Office of
Government Information Service.
Sec. 2.105 [Reserved]
Sec. 2.106 Preservation of records.
The Agency will 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 pursuant to title 44 of
the United States Code or the National Archives and Records
Administration's General Records Schedule 4.2. 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 this section, except where fees are
limited under paragraph (g) of this section or where a waiver or
reduction of fees is granted under paragraph (n) of this section.
(b) How to pay fees. Requesters must pay fees electronically at
https://www.pay.gov/ by check or money order made payable to the
Treasury of the United States.
(c) Contractor rates. When any search, review, or duplication task
is performed by a contractor, EPA will charge for staff time at the
contractor's actual pay rate, but not exceeding the rates set under
paragraph (f)(2)(ii) of this section.
(d) Rounding staff time. Billable staff time is calculated by
rounding to the nearest quarter-hour.
(e) Types of requests for fee purposes. For purposes of this
section, the five types of request categories are defined in paragraphs
(e)(1) through (5) of this section. These request categories will be
charged for the types of fees as noted, subject to the restrictions in
paragraph (g) of this section and unless a fee waiver has been granted
under paragraph (n) of this section. Paragraph (f) of this section
defines and explains how the Agency calculates each type of fee.
(1) Commercial-use Request. (i) Commercial use request means a
request from or on behalf of a person who seeks information for a use
or purpose that furthers the requester's commercial, trade, or profit
interests, which can include furthering those interests through
litigation. The Agency 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 the
Agency has reasonable cause to doubt a requester's stated use, the
Agency will provide the requester a reasonable opportunity to submit
further clarification.
(ii) For a commercial-use request, the Agency will charge the
requester for search, review, and duplication.
(2) Educational institution request. (i) 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.
(ii) For an educational institution request, the Agency will charge
the requester for duplication, except that the Agency will furnish the
first 100 pages of duplication at no charge.
(3) Noncommercial scientific institution request. (i) Noncommercial
scientific institution means an institution not operated on a
``commercial'' basis, as defined in paragraph (e)(1) of this section,
and that is operated solely for conducting scientific research that is
not intended to promote any particular product or industry. To be in
this category, a requester must show that a qualifying institution
authorizes the request, that the requester makes the request under the
auspices of the qualifying institution, and that the requester does not
seek the records for a commercial use but to further scientific
research.
(ii) For a noncommercial scientific institution request, the Agency
will charge the requester for duplication, except that the Agency will
furnish the first 100 pages of duplication at no charge.
(4) Representative of the news media requests. (i) Representative
of the news media has the meaning provided at 5 U.S.C.
552(a)(4)(A)(ii).
(ii) For representative of the news media requests, the Agency will
charge a requester for duplication, except that the Agency will furnish
the first 100 pages of duplication at no charge.
(5) Other requests. (i) Other requesters are requesters that are
not commercial-use requesters, educational institutions, noncommercial
scientific institutions, or representatives of the news media.
(ii) The Agency will charge other requesters for search and
duplication, except that the Agency will furnish without charge the
first two hours of search time and the first 100 pages of duplication.
[[Page 68956]]
(f) Types of fees. Paragraphs (f)(1) through (4) of this section
are definitions of the types of fees and explanations of how the Agency
calculates each type of fee.
(1) Direct costs. 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 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.
(2) Search. (i) 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 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. The Agency 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.
(ii) Search fees will equal the direct costs of search. Personnel
will bill their time at the following rates using the current Office of
Personnel Management General Schedule (GS) pay table for Washington-
Baltimore-Arlington, DC-MD-VA-WV-PA. The current calculations of these
rates may be found at www.epa.gov/foia.
(A) GS-12 level or below (or equivalent pay scale): The average of
GS-9 to GS-12 (Step 5), plus 16 percent, rounded to the nearest $1
increment per quarter hour.
(B) GS-13 level or above (or equivalent pay scale): The average of
GS-13 to GS-15 (Step 5), plus 16 percent, rounded to the nearest $1
increment per quarter hour.
(iii) For requests that require the retrieval of records stored by
an agency at a Federal Records Center operated by NARA, additional
costs will be charged in accordance with the Transactional Billing Rate
Schedule established by NARA.
(3) Review. (i) Review means the examination of a record located in
response to a request 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.
(ii) The Agency will charge review fees 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). The Agency will not charge for review at the
administrative appeal level for an exemption already applied. However,
the Agency may again review records or portions of records withheld
under an exemption that the Agency subsequently determines not to apply
to determine whether any other exemption not previously considered
applies; the Agency will charge costs of that review when a change of
circumstances makes it necessary. The Agency will charge review fees at
the same rates as those charged for a search under paragraph (f)(2)(ii)
of this section.
(4) Duplication. (i) 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.
(ii) 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 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. The Agency
will charge operator time at the same rates as those charged for search
under paragraph (f)(2)(ii) of this section.
(g) Limitations on charging fees.
(1) The Agency will charge no fee when a total fee calculated under
paragraph (c) of this section is less than fourteen times the rate in
paragraph (f)(2)(ii)(B) of this section rounded to the nearest $5.00
increment for any request. The current calculation of this threshold
may be found at www.epa.gov/foia.
(2) The restrictions in paragraphs (e)(1)(ii), (2)(ii), (3)(ii),
(4)(ii), and (5)(ii) and minimum fee threshold in (g)(1) of this
section work together. This means that for requesters other than those
seeking records for a commercial use, the Agency will charge no fee
unless the cost of search more than two hours plus the cost of
duplication in excess of 100 pages totals more than fourteen times the
rate in paragraph 2.107(f)(2)(ii)(B) of this section rounded to the
nearest $5.00 increment. The current calculation of this threshold may
be found at www.epa.gov/foia.
(3) If EPA fails to comply with the FOIA's time limits for
responding to a request, EPA will not charge search fees, or, in the
instance of requesters described in paragraphs (e)(1) through (5) of
this section, duplication fees, except as follows:
(i) If EPA determined that unusual circumstances as defined by the
FOIA apply and the Agency provided timely written notice to the
requester in accordance with the FOIA, a failure to comply with the
time limit shall be excused for an additional 10 working days;
(ii) If EPA determined that unusual circumstances as defined by the
FOIA apply and more than 5,000 pages are necessary to respond to the
request, EPA may charge search fees, or, in the case of requesters
described in paragraphs (e)(1) through (5) of this section, may charge
duplication fees, if the following steps are taken: EPA must have
provided timely written notice of unusual circumstances to the
requester in accordance with the FOIA and the EPA must have discussed
with the requester by written mail, email, or telephone (or made not
less than three good-faith attempts to do so) how the requester could
effectively limit the scope of the request in accordance with 5 U.S.C.
552(a)(6)(B)(ii), which includes notification to the requester of the
availability of the FOIA Public Liaison and the right to seek dispute
resolution services from the Office of Government Information Services.
If this exception is satisfied, EPA may charge all applicable fees
incurred in the processing of the request; or
(iii) If a court determines that exceptional circumstances exist,
as defined by the FOIA, a failure to comply with the time limits shall
be excused for the length of time provided by the court order.
(h) Assurance of payment and advanced payment of fees. (1) If EPA
determines that the actual or estimated fees exceed the amount in
paragraph
[[Page 68957]]
(g)(1) of this section, the Agency will notify the requester of the
actual or estimated amount, toll the processing clock, and will do no
further work on the request until the requester agrees in writing to
pay the anticipated total fee.
(2) If EPA determines that the actual or estimated fees exceed
twenty-five times the amount in paragraph (f)(2)(ii)(B) of this
section, the Agency will notify the requester of the actual or
estimated amount, and may toll the processing clock and do no further
work on the request until the requester pays the estimated or actual
fee. The current calculation of this amount may be found at
www.epa.gov/foia.
(3) After providing the requester with estimated fee amounts, EPA
will provide the requester with an opportunity to discuss with the
Agency how to modify the request to meet the requester's needs at a
lower cost.
(4) EPA calculates the estimated or actual fee cumulatively for
multi-component requests. If only a part 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.
(5) If, after the requester provided an assurance of payment or
paid an initially estimated or actual amount of fees, the Agency
increases the estimated or actual amount of fees, the Agency will
notify the requester, stop further processing of the request, and toll
any deadline for responding to the request. Once the requester provides
assurance of payment or pays the fees, the time to respond to the
request will resume from where it was at the date of the tolling
notification.
(i) Charges for other services. Although not required to provide
special services, if EPA chooses to do so as a matter of administrative
discretion, the direct costs of providing the service will be charged
to the requester. Examples of such services include certifying that
records are true copies, sending records by other than EPA's electronic
FOIA management system or U.S. Mail, or providing multiple copies of
the same document.
(j) Charging interest. EPA may charge interest on any unpaid bill
starting on the 31st day following the date of billing the requester.
The Agency will assess interest charges at the rate provided in 31
U.S.C. 3717 and will accrue from the date of the billing until the
Agency receives payment. 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. The Agency will assess no
penalty against FOIA requesters for exercising their statutory right to
ask the Agency to waive or reduce a fee or to dispute a billing. If a
fee is in dispute, the Agency will suspend penalties upon notification.
(k) Delinquent requesters. (1) If a requester fails to pay all fees
charged to the requester under the FOIA by EPA or any other Federal
agency within 60 calendar days of the date the fees were billed, the
Agency will treat the requester as delinquent. The Agency may share
information regarding delinquent requesters with other Federal
agencies.
(2) Before EPA continues processing a pending FOIA request or
begins processing any new FOIA requests from a delinquent requester,
the delinquent requester must pay the full amount due, plus any
applicable interest, on that prior request and make an advance payment
of the full amount of any anticipated fee.
(3) When the Agency requires payment under paragraph (h)(2) of this
section, the request will not be considered received until the required
payment is made. If the requester does not pay the outstanding balance
and the advance payment within 30 calendar days after the date of EPA's
fee determination, the request will be closed.
(l) Aggregating requests. If a requester or a group of requesters
acting in concert submit two or more requests that involve related
matters and paragraphs (l)(1), (l)(2), or both of this section, apply
then the Agency may aggregate those requests and charge fees
accordingly, Multiple FOIA requests involving unrelated matters shall
not be aggregated. An aggregated group of FOIA requests will be treated
as a single FOIA request under this subpart, including evaluation of
whether unusual circumstances exist.
(1) The Agency reasonably believes that if the requests constituted
a single request, such a request would result in unusual circumstances
pursuant to Sec. 2.104(f); or
(2) The Agency reasonably believes that the requester or requesters
acting together are attempting to divide a request into a series of
requests for the purpose of avoiding fees. The Agency may presume that
such requests have been submitted to avoid fees if submitted within a
30-day period. When requests are submitted by a period greater than 30
days, the Agency will aggregate them only if there exists a solid basis
for determining that aggregation is warranted under all the
circumstances involved.
(m) 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.
(n) Waiver or reduction of fees. (1) A request for a waiver or
reduction of FOIA fees must be made at the time of the initial
submission of a FOIA request. An untimely request for a waiver or
reduction of fees will be denied. If the requester seeks a waiver or
reduction of fees, the requester must submit a statement, certified to
be true and correct to the best of the requester's knowledge and
belief, explaining in detail the basis for making the request for such
a fee waiver or reduction.
(2) Requests for the waiver or reduction of fees must address the
factors listed in paragraphs (n)(4) through (6) of this section, as far
as they apply to each request. EPA 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 and will consult the appropriate EPA components as
needed. Requesters must submit requests for the waiver or reduction of
fees along with the request.
(3) When only some of the requested records satisfy the
requirements for a waiver of fees, the Agency will grant a waiver for
only those records.
(4) 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 the Agency determines, based on all available
information, that disclosure of the requested information is in the
public interest because it is:
(i) Likely to contribute significantly to public understanding of
the operations or activities of the government, and
(ii) Is not primarily in the commercial interest of the requester.
(5) To determine whether the request meets the first fee waiver
requirement, the Agency 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
[[Page 68958]]
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 the 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. The Agency will consider a
requester's expertise in the subject area and ability and intention to
effectively convey information to the public. The Agency presumes 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. The Agency 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.
(6) To determine whether the request meets the second fee waiver
requirement, the Agency 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. The Agency will consider any commercial interest
of the requester (with reference to the definition of ``commercial use
request'' in paragraph (e)(1) of this section), or of any person on
whose behalf the requester may be acting, that would be furthered by
the requested disclosure. The Agency will give the requester 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. The Agency 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. The Agency will not presume
that disclosure to data brokers or others who merely compile and market
government information for direct economic return is to primarily serve
the public interest.
Sec. 2.108 Administrative appeals.
(a) Appeals of adverse determinations. To appeal an adverse
determination, a requester must submit an appeal in writing within 90-
calendar days from the date of the letter communicating the Agency's
adverse determination, and by one of the following methods:
(1) EPA's FOIA submission website, linked to at www.epa.gov/foia;
(2) U.S. Mail sent to the following address: National FOIA Office,
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW
(2310A), Washington, DC 20460; or
(3) Overnight delivery service to National FOIA Office, U.S.
Environmental Protection Agency, 1200 Pennsylvania NW, Room 7309C,
Washington, DC 20460.
(b) Requesters submitting appeals electronically must do so before
5:00 p.m. Eastern Time for the Agency to consider the appeal as
received on that date, and appeals submitted electronically at or after
5:00 p.m. Eastern Time will be considered received by the National FOIA
Office on the next business day.
(c) The appeal letter may include as much or as little related
information as the requester wishes. The appeal letter must clearly
identify the office's determination that is being appealed and the
assigned request tracking number. For quickest handling, the requester
must mark their appeal letter and its envelope with ``Freedom of
Information Act Appeal.''
(d) Authority to make decision on appeal. Unless the Administrator
directs otherwise, the General Counsel or the General Counsel's
delegate will act on behalf of the Administrator on all appeals under
this section, except that:
(1) The Counsel to the Inspector General will act on any appeal
where the Inspector General or the Inspector General's delegate has
made the final adverse determination; however, if the Counsel to the
Inspector General has signed the final adverse determination, the
General Counsel or the General Counsel's delegate will act on the
appeal;
(2) An adverse determination by the Administrator on an initial
request will serve as the final action of the Agency; and
(3) An appeal ordinarily will not be adjudicated if the request
becomes a matter of FOIA litigation.
(e) Timing of decision on appeal. EPA will make the decision on the
appeal in writing, normally within 20 working days of its receipt by
the National FOIA Office.
(1) A decision affirming an adverse determination in whole or in
part will contain a statement of the reason or reasons for the
decision, including any FOIA exemption or exemptions applied, inform
the requester of dispute resolution services offered by the Office of
Government Information Service of the National Archives and Records
Administration, and inform the requester of the FOIA provisions for
judicial review of the decision.
(2) If the Agency reverses or modifies the adverse determination on
appeal, the Agency will attach the requested information that the
Agency determined on appeal to be releasable, or the Agency will return
the request to the appropriate office so that the office may reprocess
the request in accordance with the appeal decision.
(f) When appeal is required. If the requester wishes to seek
judicial review of any adverse determination, the requester must first
appeal that adverse determination under this section, except when EPA
has not responded to the request within the applicable time-period. In
such cases, the requester may seek judicial review without making an
administrative appeal.
Sec. 2.109 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. 2022-24678 Filed 11-16-22; 8:45 am]
BILLING CODE 6560-50-P