[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Rules and Regulations]
[Pages 63020-63031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19699]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

[OGC-2022-0885; FRL 5630-01-OGC]
RIN 2025-AA38


Freedom of Information Act Regulations Update; Phase II

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA or Agency) finalizes 
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: This rule is effective on November 13, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. OGC-2022-0885. All documents in the docket are listed on 
the http://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available electronically through http://www.regulations.gov.

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. General Information
II. Background
III. Summary of Provisions Finalized as Proposed
IV. Summary of Changes From Proposal
V. Statutory and Executive Orders Reviews

I. General Information

A. 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 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.

B. What action is the Agency taking?

    This action finalizes changes to EPA's FOIA regulations at 40 CFR 
part 2. The changes alter the process by which individuals and entities 
request records from EPA under the Act. EPA makes 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 
conduct a second rulemaking phase to make discretionary and modernizing 
changes. Consistent with that statement, EPA is finalizing the proposal 
published on November 17. 2022 with certain changes. See

[[Page 63021]]

Freedom of Information Act Regulations Update; Phase II, 87 FR 68946.

II. Background

    This action is the second phase in a two-phase process to update 
the Agency's FOIA regulations. On June 26, 2019, effective 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.

III. Summary of Provisions Finalized as Proposed

    Below is a summary of the provisions that EPA finalizes in the same 
form that they were proposed.

A. Time for Response to Modification Request

    EPA adds a statement that requires a requester to modify a request 
within 20 calendar days after an EPA notice that the request is not 
reasonably described. 40 CFR 2.102(c) requires that requesters 
reasonably describe the records that they are seeking. EPA did, and 
continues to, provide requesters with an opportunity to discuss and 
modify a request that does not reasonably describe the records sought. 
Previously, however, there was no clear timeline for requesters to 
modify a request. If a requester sufficiently modifies the request to 
meet the requirements of 40 CFR 2.102(c) within 20 calendar days, EPA 
will not close the request.

B. Readability and Useful Information

    EPA reorganizes, but makes no substantive changes to, 40 CFR 
2.100(a) by moving to separate paragraphs the sentences describing 
other regulations relevant to the release of information.
    EPA creates 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).
    EPA consolidates 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 
combines into section 2.104(a) previous sections 2.101(a)(4) and 
2.102(a), and directly incorporates into section 2.104(a) the FOIA's 
language on timing of response from 5 U.S.C. 552(a)(6)(A)(i). EPA also 
explains at section 2.104(f) 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).
    EPA adds to section 2.104(a)(2) providing that a request submitted 
after 5:00 p.m. Eastern Time is considered received on the next 
business day. This change states the corollary of the already existing 
and unchanged language stating that requests submitted before 5:00 p.m. 
are considered received on that business day. EPA modifies section 
2.108(b) to state that appeals submitted after 5:00 p.m. Eastern Time 
are considered received on the next business day.

C. Consistency With Government-Wide Policy

    EPA makes three changes, found at sections 2.106, 2.108(d)(3), and 
2.108(e)(1), which discuss the preservation of records, handling of 
appeals after FOIA litigation, and the contents of adverse 
administrative appeals decisions.
    EPA updates 40 CFR 2.107(b) to state that payments by check or 
money order should be made out to the Treasury of the United States.
    EPA revises 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 will identify for requesters the 
electronic submission platform's new link on EPA's FOIA website.

D. 2019 Phase I Regulations

    EPA removes the clause in 40 CFR 2.103(b) that described the phrase 
``determinations required by 5 U.S.C. 552(a)(6)(A).'' 40 CFR 2.103(b) 
previously stated ``[Listed positions within 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.'' 40 CFR 2.103(b) now states that ``[Listed positions within 
EPA] are authorized to make determinations required by 5 U.S.C. 
522(a)(6)(A).''
    EPA does not reinstate any methods of submission that EPA removed 
through the issuance of the 2019 FOIA Regulations Update. See 2019 FOIA 
Regulations Update, 84 FR 30028 at 30030, July 26, 2019. EPA continues 
to accept FOIA requests through its FOIA submission website, an 
electronic submission website established pursuant to 5 U.S.C. 552(m), 
and U.S. Mail and overnight delivery sent to the National FOIA Office.

E. General Processing Changes

    EPA changes the ``ordinary'' search cut-off date identified in 
section 2.103(a) from the date the request was received to the date the 
Agency begins its search for responsive records.
    EPA adds a provision at 40 CFR 2.107(l) that states 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.
    EPA adds a provision at 40 CFR 2.104(f) that states EPA may assign 
multiple tracking numbers to a request with distinct parts that will be 
processed by separate regions or program offices. EPA will notify the 
requester of the separate tracking numbers for the distinct parts of 
the request, which thereafter would be processed and responded to 
separately and will be provided with separate appeal rights on 
completion.
    EPA modifies the methods of submission of FOIA appeals, located at 
section 2.108(a), to match the methods of submission of FOIA requests.

F. Fee Rates Update

    EPA establishes new fee rates, located at 40 CFR 2.107(f)(2)(ii) 
tied to the U.S. Office of Personnel and Management's General Schedule 
(GS) scale. EPA now has two fee rates for Agency personnel time spent 
processing FOIA requests, one rate for grades GS-12 and below and a 
second rate for those with grades GS-13 and above. Both rates are 
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 explained below.
Employees GS-12 and Below
Average Quarter-Hour Rate of GS-9 Step 1, GS-10 Step 1, GS-11 Step 1, 
and GS-12 Step 1 ($8.83) + Benefits (16% or $1.41) = $10.25 = (rounded 
to the nearest $1 increment) $10.00/quarter hour
Employees GS-13 and Above
Average Quarter-Hour Rate for GS-13 Step 1, GS-14 Step 1, and GS-15 
Step 1 ($15.24) + Benefits (16% or $2.43) = $17.67 = (rounded to the 
nearest $1 increment) $18.00/quarter-hour

G. Minimum Fee Threshold

    EPA increases the minimum fee threshold, located at 40 CFR 
2.107(g)(1), to an amount calculated by formula,

[[Page 63022]]

which, as of the publication of this rule is $250. That formula would 
apply a fourteen (14) times multiplier to the rate set in 40 CFR 
2.107(e)(2)(ii)(B), rounded to the nearest $5 increment. As of the date 
of signature, the minimum fee threshold would be calculated as 
explained below.

Fee rate listed in 40 CFR 2.107(f)(2)(ii)(B) ($18.00) x 14 = $252 = 
(rounded to the nearest $5 increment) $250

H. Automatic Agreement To Pay Fees

    EPA removes the provision specifying that a requester automatically 
agrees to pay up to $25 in fees when they submit a FOIA request. 
Because EPA raises the minimum fee threshold, EPA believes that an 
automatic agreement to fees at any amount at or above $250 may dissuade 
some requesters from submitting FOIA requests.

I. Assurance of Payment Threshold

    EPA raises the assurance of payment threshold, located at 40 CFR 
2.107(h)(1), to an amount calculated by formula, which, as of the 
publication of this rule 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. The formula would 
tie the assurance of payment threshold to the minimum fee threshold (40 
CFR 2.107(g)(1)).

J. Advanced Payment Threshold

    EPA increases the advanced payment threshold, located at 40 CFR 
2.107(h)(2), to an amount that would currently calculate to $450 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.

Fee rate listed in proposed 40 CFR 2.107(f)(2)(ii)(B) ($18.00) x 25 = 
$450

K. Estimated or Actual Fee Assessment

    EPA adds language at 2.107(h)(5) explaining that EPA's reassessment 
of actual or estimated fees may result in EPA re-seeking assurance of 
payment or advanced payment. This provision provides clarity and 
informs the public regarding EPA's practices by describing 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.

L. Failure To Pay Charged Fees

    EPA revises the provisions applicable to delinquent requesters. 
Previous EPA regulations discussed the failure to pay fees in several 
separate locations (previous sections 2.107(h) and (j). EPA 
consolidates these provisions into 40 CFR 2.107(k). EPA also adds a 
sentence stating that the Agency may share information regarding 
delinquent requesters with other Federal agencies.

IV. Summary of Changes From Proposal

    Below is a summary of the changes from what EPA proposed and what 
EPA finalizes today.

A. Environmental Justice Expedited Processing Criteria

    EPA proposed, and here finalizes, 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 section 552(a)(6)(E)(v), and 
does not limit the ``other cases'' that the Agency may determine merit 
expedited processing.
    EPA finalizes the proposed provision with two minor changes. EPA 
makes the first change to reflect a change in relevant descriptive 
language used in Executive Order 14096. EPA modifies the phrase 
``disproportionately high and adverse human health or environmental 
effects'' to read ``disproportionate and adverse human health or 
environment effects.'' This change will ensure consistency with EPA 
policy but is not intended to have substantive impact on EPA's 
implementation on the environmental justice-need expedited processing 
provision.
    EPA makes the second change to improve the readability of the 
environmental justice expedited processing criteria. EPA reorganizes 
but does not substantively change 40 CFR 2.107(g)(ii). As proposed, the 
provision specified considerations in both 2.107(g)(ii) and in the 
subsequent subparagraphs. The reorganization identifies in a list 
format the specific elements EPA will consider. EPA believes that this 
change is clearer than the proposal and will benefit requesters by 
providing a set of elements that flow in a logical and express manner.
    The provision providing expedited processing for an environmental 
justice-related need is in addition to and does not modify the 
provision granting expedited processing for requests demonstrating a 
``compelling need,'' which the FOIA provides at 5 U.S.C. 
552(a)(6)(E)(i)(I). This new expedited processing category targets a 
recognized need for communities with environmental justice concerns to 
have timely access to information.
    Executive Order 14096 defines environmental justice as ``the just 
treatment and meaningful involvement of all people, regardless of 
income, race, color, national origin, Tribal affiliation, or 
disability, in agency decision-making and other Federal activities that 
affect human health and the environment[.]'' EPA recognizes that timely 
access to information contained in EPA records improves the opportunity 
for meaningful involvement by communities with environmental justice 
concerns.
    To determine whether an application for expedited processing 
qualifies under this provision, the Agency will consider: (1) whether 
the requested records relate to actual or alleged Federal government 
activity, including Agency records containing environmental information 
or data; (2) the extent to which there is a pressing need to inform the 
community about the Federal government activity; (3) the extent to 
which the community is potentially experiencing disproportionate and 
adverse human health or environmental effects; and (4) the requester's 
ability and intention to effectively convey the information to members 
of the community.
    EPA will use EJScreen as a source of facts to determine whether the 
community cited by the requester is potentially experiencing 
environmental justice concerns. As EPA previously explained in the 
preamble to the proposed rule, 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 into Environmental Justice indexes. EJScreen's 
``Supplemental Indexes'' are thirteen indexes calculated by combing a 
single environmental indicator and the supplemental demographic index. 
The Supplemental Indexes do not factor in racial status. EJScreen may 
also be a valuable tool for requesters to assess whether the community 
about which they are seeking records may be affected

[[Page 63023]]

by disproportionate and adverse human health or environmental effects. 
More information regarding EJScreen is available at this link: https://www.epa.gov/ejscreen/environmental-justice-indexes-ejscreen. EPA notes 
that it will consider additional information the requester provides if 
the additional information is not adequately reflected in the methods 
and tools available to the Agency, like EJScreen's Supplemental 
Indexes, and the Agency is not otherwise prohibited from considering 
the information.
    One commenter suggested that EPA ``make[ ] clear that any criteria 
be applied flexibly and generously to accomplish the goals of this 
provision.'' EPA acknowledges the commenter's concern and will 
implement the provision consistent with the regulatory text. As such, 
EPA provides the following examples of types of requests that EPA would 
consider as evidencing a pressing need to inform a community 
potentially experiencing environmental justice-related concerns.

--Requests for EPA-held data or communications that are reasonably 
likely to contain information that is directly relevant to an 
environmental harm affecting a community potentially experiencing 
environmental justice-related concerns.
--Requests for information about or relevant to an action or policy, 
existing or in development, that is reasonably likely to have a direct, 
imminent, and cognizable connection to a threat to human health in a 
community experiencing environmental justice-related concerns.

    On the other hand, EPA would not consider the following types of 
requests to show a pressing need to inform the community.

--Requests for information about a nation-wide action or policy, either 
existing or in development, that is largely only of general interest to 
the public.
--Requests for environmental data without a direct and cognizable 
connection to the community.
--Requests for information that is primarily in the commercial interest 
of the requester.
--Requests for communications which are not reasonably likely to 
contain information related to the community.
--Requests for wholly publicly available information.
--Requests for information about an environmental concern not affecting 
or not reasonably likely to affect the community.

    One commenter suggested that EPA remove the evaluation criteria 
regarding the requester's intent and ability to effectively convey the 
information to members of the community that is potentially 
experiencing disproportionate and adverse human health or environmental 
effects. EPA declines to make this change. The purpose of considering 
the requesters intent and ability to effectively convey the information 
to members of the community is to ensure that those seeking the 
information can and are likely to meet the information needs of members 
of the community. EPA believes that this consideration is essential to 
both the purpose and effective implementation of the provision.
    For clarity on how EPA intends to implement the ``ability and 
intention'' element, EPA provides the following examples that EPA would 
consider as evidencing an ability and intent to inform the community 
potentially experiencing environmental justice-related concerns:

--The requester is a membership or community-based organization with 
active members in the community and that disseminates environmental- or 
health-related information to those members.
--The requester is a news organization with active subscribers in the 
community and that disseminates environmental- or health-related 
information to those subscribers.
--The requester has demonstrated a particular technical expertise in 
the subject area and has previously directly disseminated information 
to the community or similar communities.

    EPA would consider the following types of requests to not show an 
intent and ability to inform the community potentially experiencing 
environmental justice-related concerns:

--The requester's stated ability to disseminate the information to the 
community is limited to passive or indirect means (e.g., dissemination 
through a website, newsletter, or other publication without indication 
of directly reaching members of the community).
--A requester without either a direct connection to the community or a 
demonstrated expertise in the subject matter.
--A requester without a direct connection to the community and without 
a mission and history of disseminating information to the community.
--The Agency may consider previous failures to disseminate to the 
community information a requester received from EPA through an 
expedited request for records.

B. Definition of Reasonably Described Requests

    EPA proposed modifying previous section 2.102(c) to state that 
``Requesters should reasonably describe the records sought in 
sufficient detail to enable agency personnel to locate them with a 
reasonable amount of effort.'' One commenter suggested to use 
alternative language from Truitt v. Department of State. See 897 F.2d 
540 (D.C. Cir. 1990). EPA agrees with the comment and changes the 
sentence, which is now located at section 2.102(b)(1), to state that 
``Requesters must reasonably describe the records sought in sufficient 
detail to enable a professional employee of the agency who is familiar 
with the subject area of the request to locate the records with 
reasonable amount of effort.'' See Truitt v. Dep't 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).

C. Requests for Waiver and Reduction of Fees

    EPA proposed 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. EPA does not finalize that proposed provision 
at this time.

D. Language Referring to Appeal Letter

    EPA received one comment about the use of the term ``appeal 
letter'' in the section of the regulations discussing administrative 
appeals, 40 CFR 2.108. The comment stated that the use of the word 
``letter'' was misleading and implied that physical mail is suggested 
or preferred for purposes of appeal. Dropping the term ``letter'' would 
provide clarity to requesters. EPA reviewed the use of the word 
``letter'' and related terms and updated 40 CFR 2.108(c). These changes 
have no substantive impact on EPA or the public and are meant solely 
for clarity.

E. Grammatical Edit

    EPA received one comment noting that the hyphen is not needed in 
the phrase ``90-calendar days'' and should be removed. EPA agrees with 
the commentor will make the suggested change at 40 CFR 2.108(a).

[[Page 63024]]

V. 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.

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.

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. In 
making this determination, EPA concludes that the impact of concern for 
this rule is any significant adverse economic impact on small entities 
and that the agency is certifying that this rule will not have a 
significant economic impact on a substantial number of small entities 
because the rule has no net burden on the small entities subject to the 
rule. This final rule does not impose any new requirements on small 
entities, and the EPA FOIA regulation's requirements apply equally to 
all FOIA requesters. This rule raises the FOIA fee rates, which EPA 
applies when EPA charges for the direct costs of EPA staff's time. This 
change does not represent a significant economic impact and any impact 
will be offset by increasing the minimum fee threshold. If EPA does not 
accumulate chargeable fees in an amount above the minimum fee 
threshold, then EPA does not charge fees. We have therefore concluded 
that this action will have no net regulatory burden for all directly 
regulated small entities.

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 rule 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 finalizing 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 IV.A. of this preamble.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

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 forth in the preamble, the EPA amends title 40 
of the Code of Federal Regulations, part 2 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:

PART 2--PUBLIC INFORMATION

Subpart A--Procedures for Disclosure of Records Under the Freedom of 
Information Act
Sec.
2.100 General provisions.
2.101 Where 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

[[Page 63025]]

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) Subpart B of this part 
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.
    (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 must reasonably describe the records sought in 
sufficient detail to enable a professional employee of the Agency who 
is familiar with the subject area of the request to locate the records 
with a reasonable amount of effort.
    (2) If EPA determines that a request does not reasonably describe 
the requested records as provided in Sec.  2.102(b)(1), 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 meet the requirements of Sec.  2.102(b)(1) within 
20 calendar days, EPA will not process the submission and close the 
request. If the requester does modify the request to meet the 
requirements of Sec.  2.102(b)(1), 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.

[[Page 63026]]

    (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.
    (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 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 disproportionate and adverse human health or 
environmental effects. The Agency will consider:
    (A) Whether the requested records relate to actual or alleged 
Federal government activity, including Agency records containing 
environmental information or data.
    (B) The extent to which there is a pressing need to inform the 
community about the Federal government activity. A pressing need to 
inform does not include requests where the disclosure is primarily in 
the commercial interest of the requester.
    (C) The extent to which the community is potentially experiencing 
disproportionate and adverse human health or environmental effects.
    (D) The requester's ability and intention to effectively convey the 
information to members of the community.
    (iii) 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

[[Page 63027]]

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 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 by check, money 
order, electronically at https://www.pay.gov/, 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 eligible for inclusion in this category, 
requesters must show that the request is being made as authorized by 
and under the auspices of a qualifying institution and that the records 
are not sought for a commercial use, but are sought in furtherance of 
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 
eligible for inclusion in this category, requesters must show that the 
request is being made as authorized by and under the auspices of a 
qualifying institution and that the records are not sought for a 
commercial

[[Page 63028]]

use, but are sought in furtherance of 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.
    (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, disc, or compact disc), 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)(2) through (4) 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)(2) through (4) of this section, may charge 
duplication fees, if the following steps are taken: EPA must have

[[Page 63029]]

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 (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), (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.
    (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.

[[Page 63030]]

    (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 
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) Timing for administrative appeals submitted electronically. 
Requesters submitting appeals electronically must do so before 5 p.m. 
Eastern Time for the Agency to consider the appeal as received on that 
date, and appeals submitted electronically at or after 5 p.m. Eastern 
Time will be considered received by the National FOIA Office on the 
next business day.
    (c) Content of administrative appeal. The appeal may include as 
much or as little related information as the requester wishes. The 
appeal must clearly identify the office's determination that is being 
appealed and the assigned request tracking number. For quickest 
handling of appeals sent via U.S. Mail or overnight delivery service, 
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

[[Page 63031]]

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. 2023-19699 Filed 9-13-23; 8:45 am]
BILLING CODE 6560-50-P