753 United States Off ice of , Off ice of
n Environmental Protection The Executive
Agency Administrator Support
FREEDOM OF INFORMATION 100R86102
v/tr»A FREEDOM OF
INFORMATION ACT
MANUAL1550
1986 Edition
U.S. Environmental Protection Agency
Region V, Library ^ V
230 South Dearborn Street
Chicago, Illinois 60604
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U.S. Environmental Protection Agencv
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CLASSIFICATION NO.
APPROVAL DATE:
rRAIMSMriTAL
1550
2/20/1986
ADDRESSEE
FREEDOM OF INFORMATION MANUAL
1. PURPOSE. This Transmittal issues a new Freedom of
Information (FOI) Manual.
2. EXPLANATION. The FOI Manual provides guidance on policy
and procedures for implementing the Freedom of Information
Act.
3. SUPERSESSION. EPA Order 1550.1C, "Freedom of Information
Procedures."
4. FILING INSTRUCTIONS. Place Manual in a three-ring
binder and post receipt of this Transmittal on Checklist in
front of the Manual.
Sector
Management and Orrjani zation Division
ORIGINATOR: office of Executive Support, Office of the Administrator
EPA Form 1315-12 (R«v. 7-82) REPLACES EPA FORMS 131S-1A AND THE PREVIOUS EDITION OF 1315 12.
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CHECKLIST OF EPA TRANSMITTALS
TITLE
FREEDOM OF INFORMATION MANUAL - 1986 EDITION
When kept current, this checklist permits the user to see at a glance which transmittals have been filed.
SERIES
NUMBER
1550
DATE
2/20/86
INI-
TIAL
SERIES
NUMBER
DATE
INI-
TIAL
SERIES
NUMBER
D A TE
INI-
TIAL
EPA Form 1315-4 (Rev. 7-73)
PREVIOUS EDITIONS ARE OBSOLETE.
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CONTENTS
Tab/Page
CHAPTER 1; GENERAL INFORMATION A 1-1
1. Purpose 1-1
2. Policy 1-1
3. Authority 1-1
4. Definitions and Options 1-1
5. Time Requirements 1-2
6. Responsibilities 1-3
7 . Re v i ew . 1-4
8. Delegation of Authority 1-4
9. Accountability 1-5
10. Overview of the FOIA Process 1-5
CHAPTER 2; LOGGING, ROUTING AND FILE-KEEPING
OF FQIA REQUESTS B 2-1
1. FOI Office Procedures for Initial
Handling of Requests 2-1
2. Requests Addressed Directly to
Action/Field Offices 2-2
3. FOIA Files and Request
Logbook 2-3
CHAPTER 3; GUIDANCE TO ACTION OFFICES
ON INITIAL RESPONSE TO REQUESTS C 3-1
1. Make Sure the Request Falls Under
FOIA 3-1
a. Guidelines 3-1
b. Oral Requests 3-1
c. Requests from Other Federal
Agencies 3-2
d. Requests from Congress 3-2
e. Requests from General
Accounting Office 3-2
f. Future Records 3-2
g. Personal Records of Employees ... 3-2
2. Responding to FOIA Requests 3-6
a. Description of the Records 3-6
b. Voluminous Records 3-6
c. Locate the Records 3-6
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CONTENTS
(continued)
Tab/Page
CHAPTER 4; FEES AND FEE WAIVERS D 4-1
1. General Procedures 4-1
a. Initial Review 4-1
b. Calculating Fees 4-2
c. Costs Not Chargeable 4-2
d. Assuring Payment 4-3
e. Billing 4-4
2. Public Interest Fee Waivers
or Reductions ' 4-8
a. General Requirement 4-8
b. Policy 4-8
c. Procedures 4-9
d. Assistance in Making Decisions . 4-10
e. Special Consideration 4-10
t. Criteria 4-10
g. Reduction in Fees 4-12
h. Public Participation
Requirements 4-12
i. Appeals 4-1.3
j. Court Review of Denials 4-13
3. Administrative Fee Waivers 4-14
4. Delinquent^Requesters 4-14
CHAPTER 5; RELEASING RECORDS E 5-1
1. Who May Release 5-1
2. What May Be Released 5-1
3. Time Frame 5-2
4. Preparing Release Letters 5-3
5. Recordkeeping 5-4
CHAPTER 6: WITHHOLDING RECORDS F 6-1
1. Who May Withhold 6-1
2. What May Se Withheld 6-1
3. Prior Disclosure 6-2
4. Time Frame 6-3
5. Denial Letter 6-3
6. Partial Denial 6-5
7. Recordkeeping 6-6
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Freedom of Information Act Manual
CONTENTS
(continued)
CHAPTER 7: THE NINE EXEMPTIONS UNDER FOIA
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1. Overview
2. The Nine Exemptions
Tab/Page
G 7-1
7-1
7-2
a. Exemption 1 National Defense/
Foreign Policy 7-2
b. Exemption 2 Internal Agency Rules.. 7-2
c. Exemption 3 Information Exempt
under Other Statutes. 7-3
d. Exemption 4 Trade Secrets/Commercial
Financial Information 7-3
e. Exemption 5 Inter- and Intra-Agency
Memoranda 7-4
f. Exemption 6 Personal Privacy 7-7
g. Exemption 7 Investigatory Records.. 7-8
h. Exemption 8 Records of Financial
Institutions 7-10
i. Exemption 9 Geological/Geophysical
Information 7-10
CHAPTER 8; BUSINESS CONFIDENTIALITY H 8-1
«
1. Authority 8-1
2. Introduction 8-1
3. Action by EPA Office to
Determine Confidentiality 8-2
4. Final Confidentiality Determination
by EPA Legal Office 8-4
5. Previous Confidentiality or
Class Determination 8-5
6. Disclosure with Consent of
Affected Business 8-6
7. Disclosure of C8I Other than
Under FOIA 8-6
CHAPTER 9; DISCRETIONARY RELEASE I 9-1
1. When to Use 9-1
2. When Not to Use 9-1
3. Discretionary Release on Appeal ........ 9-1
CHAPTER 10; APPEALS J 10-1
1. Right to Appeal 10-1
2. Time Frame tor Receiving Appeals 10-1
3. Time Frame for Responding to Appeals ... 10-1
4. Procedure 10-1
5. Issuing Determinations 10-3
6. Judicial Review 10-3
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CONTENTS
(continued)
CHAPTER 11: ANNUAL REPORT AND RECORDKEEPING
1. Annual Report to Congress .
2. Evaluations
3. Records Retention Schedules
APPENDIX I:
APPENDIX II
SAMPLE LETTERS
SAMPLE FORMS
APPENDIX III: FOIA STATUTE (U.S. CODE)
APPENDIX IV:
APPENDIX V:
APPENDIX VI:
EPA REGULATIONS
RECORDS RETENTION SCHEDULES
CONTACT LIST OF FQI PERSONNEL AT
EPA
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Tab/Page
K
L
M
N
0
P
11-1
11-1
11-3
11-3
INDEX
IV
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CHAPTER 1; GENERAL INFORMATION
-;"1~-' ~ - - ~~ ~- ~-~"- e
1. PURPOSE
This manual provides guidance on policy and procedures for
implementing EPA's Freedom of Information Act (FOIA)/Public
Information Regulations (Title 40 CFR, Chapter 1, Part 2).
2. POLICY
It is the Agency's policy to make the fullest possible
disclosure of information without unjustifiable expense or
unnecessary delay to any requester.
3. AUTHORITY
a. The Freedom of Information Act is found at 5 U.S.C. 552.
b. EPA's regulations concerning implementation of FOIA are
found in Title 40, Code of Federal Regulations, Chapter 1,
Part 2.
4. DEFINITIONS & OPTIONS
a. Definitions
1) What is a FOIA request? A FOIA request is a written
request for records held or believed to be held by
EPA. The request need not specifically refer to the
Freedom of Information Act.
2) What isan agency record? "Record" may include any
existing document, memorandum, report, photograph,
sound or magnetic recording, computer tape, drawing,
or other similar thing by which information has been
preserved. The term includes draft documents and
may include handwritten notes (except personal notes,
see Chapter 3, section l.g).
3) Who can make a FOIA request? Requesters under FOIA
can include any individual (including non-U.S.
citizens), corporation or association, public interest
group, and local, State or foreign government.
Requests from Federal agencies, the General
Accounting Office, or the Congress (i.e., the Speaker
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of the House, the President of the Senate, or the
Chair of a committee or subcommittee) are not FOIA
requests (see Chapter 3 for more information).
b. Options for handling FOIA requests. Generally speaking,
an office has four options in handling a FOIA request for existing,
located records. These options may be applied singly or in
combination for a given request. They are:
1) Releasing documents. All EPA records will be made
available to the requester upon receipt of a request
(see Chapter 5) unless they fall under one of the
nine exemption categories provided under FOIA.
2) Withholding documents. An office may withhold records
if they fall under one of the nine exemptions of FOIA
(see Chapter 7).
3) Partial withholding of documents. If documents contain
both exempt and non-exempt information, the non-exempt
information must be disclosed if the exempt material
is "reasonably segregable" and the necessary deletions
can be made without making the document unintelligible
(see Chapter 6, Section 6).
4) Discretionary release. An office may release requested
records that fall under Exemptions 2, 5, and 7 of
FOIA (e.g. internal agency rules, inter- and intra-
agency memos, and investigatory records). As a matter
of policy, the Agency encourages disclosure of these
records if no important Agency purpose is served by
withholding, (i.e., release would cause significant
harm to the Agency) (see Chapter 9).
5. TIME REQUIREMENTS
a. Initial Determinations. Ordinarily, there is a 10-workday
time limit in-which to make an initial determination on whether
to release or withhold records requested under FOIA, with the
first day being the date when the Agency or Regional FOI Office
receives the request. Excluded from that period is any time
taken by the requester to provide EPA with additional information
to be able to identify the records or time required to secure
prepayment of fees or assurance of payment.
b. Appeals. Any person whose request is denied in whole or
in part has a right to appeal the determination. This appeal
should be mailed to the Agency FOI Office no later than 30 calendar
days after the day the requester receives the Agency's denial.
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The Office of General Counsel (OGC) then has 20 workdays to
review the appeal and to determine whether the records were
properly withheld.
c. Extensions. An extension of up to 10 workdays total
may be taken on the due date for the initial determination or
appeal determination. For the initial determination, an extension
may be taken only if the search involves extensive records,
physically distant records, or consultation with another agency
or another office within the Agency. Total extension time taken
on initial determinations and appeal determinations may not
exceed 10 workdays.
For example, if an extension of three days is taken for
issuing the initial determination, an extension taken during the
appeal period can only be for seven days or less. If an initial
determination cannot be issued in 10 workdays, the action office
should provide written notice to the requester concerning the
status of the request by the tenth day. The written notice
should inform the requester that an extension is being taken,
cite the reasons for the extension, and give the date by which
the Agency reply will be made.
6. RESPONSIBILITIES
a. Agency Freedom of Information Office. Coordinates
and oversees the Agency FOIA program, develops and "reviews FOIA
procedures and policies, provides advice to Agency FOI personnel
in the program and Regional offices, prepares the annual FOIA
report to Congress, routes and tracks FOIA requests, monitors
Agency FOIA activities, keeps FOIA official and public files,
monitors quality of responses, and provides training or training
opportunities to Agency FOI personnel.
b. Office of General Counsel (OGC). Provides legal advice
on FOIA, issues determinations on appeals, issues final
determinations on business confidentiality, drafts FOIA
regulations - and handles liaison with the Department of Justice
on FOIA litigation.
c. Office of External Affairs. Issues fee waiver appeal
determinations and makes discretionary release determinations on
Agency documents on appeal.
d. Program Offices. Program FOI Coordinators route requests
to appropriate action offices within their program, track FOIA
requests as to timeliness, monitor quality of response, and
provide guidance to program personnel (with help if needed from
the Agency FOI Office or OGC).
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e. Regional FOI Offices. Regional FOI Officers route
requests to appropriate action offices within their Region,
track FOIA requests, provide guidance to Regional personnel
(with help if needed from the Agency FOI Office), submit materials
for the annual FOIA report, keep FOIA official files, monitor
quality of responses and timeliness of responses, and provide
training and current information to Regional FOI personnel.
f. Offices of Regional Counsel. As part of OGC, provide
legal advice on FOIA questions to regional personnel, issue
final determinations on business confidentiality in cases
where authority has been delegated to them and provide legal
counsel on FOIA litigation.
g. Action Offices. Analyze requests, locate records, contact
requester as needed, examine records, delete exempt material,
prepare and issue responses, release records, and when appropriate,
prepare and issue bill, and issue fee waiver decisions.
h. Financial Management Offices. Ensure all Bills for
Collection related to FOIA requests are recorded promptly.
Prepare follow-up billing for all uncollected FOIA requests.
Reconcile FOIA receivables against information provided by FOI
Offices. Collect fees related to -FOIA requests.
7. REVIEW OF FOIA POLICIES AND PROCEDURES
All documents containing policies and procedures relating
to public access to Agency records must be submitted to the Agency
FOI Officer for review and concurrence prior to issuance and
implementation.
8. DELEGATION OF AUTHORITY
a. Authority to Issue Initial Determinations. The authority
to make initial determinations regarding the release or withholding
of materials, waiver of fees, or extension of due dates for
responses is-delegated to the:
o Deputy Administrator,
o Assistant and Associate Administrators,
o Heads of HQ Staff Offices,
o Regional Administrators,
o General Counsel, and
o Inspector General.
This authority (found in 40 CFR 2.113(b) and EPA Delegation
1-30) may be redelegated to all EPA employees, with the exception
that the authority to issue initial denials of records may
not be redelegated below the Division Director or equivalent
level. However, the authority to issue denial's based solely on
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a determination by the action office that the information
requested may be entitled to confidential business treatment (40
CFR 2.204(d)(l)) may be redelegated to any Agency employee.
Any redelegation of authority must be written and copies
of the official redelegation must be kept on file at the Agency
or Regional FOI Office and with the FOI Coordinator (if
appropriate. An example of a redelegation memorandum is
available from the Agency FOI Office.
b. Authority to Issue Determinations on Appeals
1) The General Counsel is the Agency Official authorized
to make legal determinations on written appeals of
initial denials. This authority has been redelegated
in writing to the Deputy General Counsel and to the
Associate General Counsel for Gra'nts, Contracts
and General Law. These redelegations are on file in
the Office of General Counsel and the Agency FOI Office.
2) The Assistant Administrator for External Affairs is
the Agency Official authorized to make determinations
on fee waiver appeals and to review records for dis-
cretionary release on appeal as required (see Chapter 9).
This authority may be redelegated to the Deputy
Assistant Administrator for External Affairs. Two
exceptions to this review by the Office of External
Affairs are appeals of initial denials issued by
the Inspector General's Office and appeals involving
Privacy Act records.
9. ACCOUNTABILITY
Agency employees will be held accountable for their decisions
with respect to the release or withholding of information, the
waiver of payment, and/or the appeals process. The FOIA provides
a special procedure whenever a court orders the production of EPA
records improperly withheld from the complainant and issues a
written finding that the circumstances surrounding the withholding
raise questions of whether the responsible employees acted arbitrarily
or capriciously. Under this procedure the Special Counsel of the
Merit Systems Protection Board will promptly initiate a proceeding
to determine whether disciplinary action is warranted against the
employee primarily responsible for the withholding.
10. OVERVIEW
This section provides a checklist and a flowchart of EPA's
FOIA process. Offices may find this useful as a summary of the
steps in the process.
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Checklist for Responding to a FOIA Request
1) Read the request.
Is it a request for records (i.e., a FOIA request) or
is it a request for information (i.e., a public
inquiry)?
2) Read the request again.
o Does it "reasonably describe" the record(s) sought?
That is, do you know what the requester wants?
o Is the request overly broad in scope or is it well
defined?
o Would discussion with the requester help to define,
clarify or narrow the scope of the request?
3) Resolve questions about fees with the requester.
o Has the requester indicated a willingness to
pay the -cost of searching for and copying records?
o Has the requester asked for, a fee waiver?
o Should you obtain prepayment or an assurance of
payment?
4) Identify and locate the records.
o Do the records exist?
o Are the records in the Agency's possession and
control?
. o Should another agency be consulted and/or
deferred to?
o Was your search for the records adequate to ensure
that all records within the scope of the request
were identified and located?
o If your office and another EPA office both have
copies of the records, which one would be the more
appropriate office to determine the release status
of the records?
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5) Review the records.
Are there any exempt records or portions of records?
6) Prepare the response, identifying;
o Records or portions of records to be disclosed.
o Records or portions of records to be withheld
and the authority for withholding them (i.e.,
applicable exemption(s)).
o Names and titles or positions of each person
responsible for the denial.
o Procedures for appealing the denial.
7) Purge exempt portions of information.
Prepare the records for disclosure/non-disclosure,
segregating exempt records or portions of records
from non-exempt portions.
8) Prepare the Bill for Collection Form (if a fee has
been assessed).
9) Issue the response/ enclosing records to be disclosed
and the Bill for Collection Form (if appropriate).
o Maintain one copy of the response and bill (if
appropriate) for the action office file.
o Send two copies of the response and one copy of
the bill (if appropriate) to the FOI Officer.
o Send one copy of the response to the FOI Coordinator
(if appropriate).
o Send three copies of the bill (if appropriate) to
the Servicing Financial Office.
o Maintain a copy of the withheld records or a list
adequate to identify records to be made available
to the Office of General Counsel in the event of
an appeal.
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b. FOIA Flowchart
The flowchart outlines the path of a typical FOIA request.
The process begins with receipt of a request and may result in
one of several possible outcomes. The records may be released or
withheld, in part or in full, by the action office. After the
initial determination, the requester may appeal the action office's
decision to withhold the documents and the records may still be
withheld or may subsequently be released.
Along the FOIA path, several factors may affect the final
outcome of the request. For example, a request for a fee waiver
must be weighed carefully and resolved by the action office. If
the requester appeals a fee waiver denial, the Office of External
Affairs would become involved in the process.
The flowchart depicts the different outcomes of the FOIA
process and identifies the offices responsible for the various
parts of the process.
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FOIA REQUEST FLOW CHART
(Note: This is the typical path of a request.)
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REQUESTER - initiates request
Day 1
of Initial
Determination
FOI OFFICE - reviews and routes to correct
(HO/Regional) ACTION OFFICE
- sends acknowledgement to REOUESTER
- HO may route requests through the
Program FOI coordinators
ACTION OFFICE - analyzes request
- locates, reviews, purges records
(if needed)
- contacts REOUESTER for clarification
information released
ACTION OFFICE - if fee waiver, may consult
w/ FOI Coordinator/Officer
- issues response letter, records &
bill (if needed) to REQUESTER.
'Day 10
REQUESTER - receives response letter 6 records
-Day 1
of Response to Denial by Requester
IDAY 30
information denied
ACTION OFFICE - may consult w/ OGC
- drafts denial, obtains
Responsible Official signature
REQUESTER - receives denial t notice of
right to appeal
if appealed
REOUESTER - initiates appeal w/ Agency FOI
Office
CAY 1
of Fee Waiver Appeal Process
if fee waiver appeal
FOI - Freedom of Information
OQC - Office of General Counsel
OEA - Office of External Affairs
FOI OFFICE - acknowledges appeal
if general appeal
FOI OFFICE - handcarries to OEA
OEA - consults w/ OGC
- issues determination on fee waiver
>ay 10
REQUESTER - receives determination
FOI OFFICE - handcarries to OGC
OGC - consults w/ ACTION OFFICE
- contacts OEA for public interest
determination if appropriate
- notifies requester of decision
Day 20
REOUESTER - receives determination
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CHAPTER 2; LOGGING, ROUTING AND FILE-KEEPING OF
FOIA REQUESTS
1. PROCEDURES FOR AGENCY FOI OFFICES REGARDING INITIAL HANDLING
OF REQUESTS
a. Log the Request. A request delivered to either the Agency
or Regional FOI Office is:
o date stamped,
o assigned a Request Identification Number (RIN),
o assigned a due date for response,
o entered on the FOIA Request Log (EPA Form 1550-12)
(sample attached, Appendix II, page 1),
o attached to a completed Mail Control Schedule (EPA
Form 5180-1) (sample attached, Appendix II, page 2),
o attached to a Bill for Collection Form (EPA Form 2505-4)
(sample attached, Appendix II, page 3), and
o delivered within 24-hours (preferably handcarried) to
the office responsible for preparing the reply.
b. Acknowledge the Request. Upon receipt of a FOIA request,
the Agency or Regional FOI Office should acknowledge receipt of
the request to the requester immediately after carrying out the
log-in procedures described above. The acknowledgement, EPA
Form 1550-2 or EPA Form 1550-3 (samples attached, Appendix II,
pages 4 and 5). informs the requester of the date of receipt
and the assigned Request Identification Number.
c. Multiple Responsible Offices. If more than one office
will provide material for a reply, the Agency or Regional FOI
Office may coordinate the overall response, designate a lead
action office to coordinate the reply, or instruct each office
to prepare separate replies.
d. Route the Request.
1) Route a Request from HQ to Regional Offices. When a
request is routed from HQ to the Regional FOI Office,
the Agency FOI Office takes the steps outlined in
l.a and l.b above (assigning the RIN number, logging
and acknowledging the request) and telecopies the
request to the Regional FOI Office for proper routing
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within the Region. The Regional Office should not
assign the request a Regional RIN, since the Agency
FOI Office has already assigned a RIN and two different
RINs would confuse the requester and complicate tracking.
NOTE: In instances where a separate but identical
request is received by both the Region and HQ, the HQ
and Regional RINs may both be carried on the request.
2) Route a Request from Regional Offices to HQ. If a
Regional FOI Office receives a request for records
that are held only in Headquarters, another Regional
Office, or a field office, the office should immediately
remove the request from its tracking system and telecopy
(i.e., Magnafax) the request to the Agency FOI Office.
At the same time, the requester must be notified that
the request is being transferred to the Agency FOI
Office for response.
NOTE: If a Regional Office receives a request for
records, some of which are held in the Region and
some of which are held in HQ or a field office, it
should respond as follows: 1) promptly forward the
request to the Agency FOI Office, noting which records
will be sent from the Region; 2) process the request
for those records held in the Region (using a Regional
RIN); and 3) send those records to the requester and
notify him/her that the remainder of the request was
forwarded to the Agency FOI Office. The Agency FOI
Office will assign a RIN number and process the
remainder of the request.
3) Never Re-Route Between Program Offices. Offices
should never, re-route requests directly to other
Program Offices. All re-routing should be through
the Agency or Regional FOI Office as appropriate.
2. REQUESTS ADDRESSED DIRECTLY TO ACTION/FIELD OFFICES
a. Action Offices. If an organizational unit or EPA official
directly receives correspondence that is identifiable as a FOIA
request, the office should immediately make a copy of the request
and handcarry the original request to the Program FOI Coordinator.
The FOI Coordinator in turn promptly handcarries the
request to the appropriate FOI Office. The action office may
use the copy made of the request to begin action on the request
but only if it is the appropriate office to handle the request.
No response should be sent out until the office is actually
assigned responsibility to respond to the request by the FOI Office
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b. Field Offices. If a field office located outside the
geographical area of the Agency or Regional FOI Office receives
a FOIA request directly/ it should telephone the appropriate
FOI Office on the same day to obtain a Request Identification
Number (RIN). Once the FOI Office assigns a RIN, it will forward
a completed control slip to the field office. Upon completion
of the action, the field office forwards two copies of the FOIA
request and the response, and one copy of the Bill for Collection
Form, to the appropriate FOI Office. Copies of the Bill for
Collection Form should be sent to the appropriate Financial
Management Office.
3. FOIA FILES
EPA's FOIA files constitute a system of records under the
Privacy Act and must be maintained under the requirements of that
Act, EPA's Privacy Act regulations, the Federal Register Notice
describing this system of records, and the Agency's Privacy Act
Manual.
a. Types of Files
1) Official Files. The Agency and Regional FOI Offices
maintain an official file on each FOIA request they
receive. The official file includes copies of the
incoming request, the Mail Control Schedule, the
Agency's response, the Bill for Collection Form,
follow-up correspondence, any appeal and appeal
determinations, and any intra-agency communications
concerning the request.
2) Public File. Each FOI Office may maintain, at its
own option, a separate public file to help facilitate
processing responses for FOIA requests for Agency
FOIA files. The public file shall include only the
copies of each FOIA request, the Agency's response,
and any appeal and appeal determination. These
documents shall be purged of any personal information.
3) FOI Coordinators* Files. FOI Coordinators may keep
files to facilitate their responsibilities for routing
and tracking requests assigned to action offices.
However, Coordinators' files are not a substitute for
official files.
4) Request Logbook. Each FOI Office shall maintain a FOIA
Daily Logbook with personal information purged (sample
attached, Appendix II, page 1).
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5) Action Office Files. Each action office shall maintain
the incoming request, Mail Control Schedule, a copy of
the response, a copy of the withheld documents or a
list adequate to identify the records, the Bill for
Collection Form, follow-up correspondence and any
communications concerning the request which may be
needed in the event of an appeal or litigation.
Disclosure of FQIA Files to the Public.
1) Rule. FOIA files may not be made available to a
member of the public without a written request from
the person seeking the records.
2) Background. The Privacy Act prohibits the disclosure
of information in systems of records to the public
unless FOIA requires disclosure. Since FOIA would
require disclosure of certain Agency FOIA files which
had been purged of personal information (e.g., Public
File, Request Logbook), EPA has, in the past, made these
files available to the public without requiring a
written request. Under current case law, the Privacy
Act provision permitting disclosure if the records are
required to be disclosed under FOIA, has been
construed to mean that there must be an actual FOIA
request pending for the specific records before an
agency may disclose Privacy Act records.
3) Purging FOIA Files. Before disclosing FOIA files,
the files must be reviewed and purged of:
- Home addresses and phone numbers and other personal
information the disclosure of which would constitute
. a clearly unwarranted invasion of personal privacy
within the meaning of Exemption 6 of the FOIA (see
Chapter 7, section 2.f).
Any other information, such as confidential business
information or internal communications reflecting
Agency deliberations, which is exempt from disclosure
under the FOIA (see Chapter 7).
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CHAPTER 3; GUIDANCE TO ACTION OFFICES ON INITIAL
RESPONSE TO REQUESTS
1. MAKE SURE THE REQUEST FALLS UNDER FOIA
a. General Guidelines. Always contact the Agency or Regional
FOI Office as appropriate when there is doubt with respect to
the cases described below.
1) Inquiries for Documents that are not Agency Records.
Requests for records that are published by non-federal
organizations and are readily available to the public
are generally not handled under FOIA. The response to
the requester should indicate that the documents are
not Agency records.
2) Inquiries for Answers to Specific Questions. If the
requester seeks answers to specific questions, the
Agency is not required to respond under FOIA. However,
if the questions can fairly be read as constituting a
request for access to records, the action office should
process the request under FOIA. The action office
should make good faith efforts to assist the requester
whose request is inartfully presented in the form of
questions.
b. Responding to Oral Requests. Requests made orally (either
by telephone or in person) are not FOIA requests. However, in
certain cases, offices should ask that oral requests be put in
writing and treated as FOIA requests. Those special circumstances
are discussed below. In general, an EPA office that directly
receives an oral request for records should: (1) determine whether
the requested record may be released (see Chapters 5 and 6), and
(2) determine whether the record is readily available or whether
substantial search time will be needed to locate it. NOTE:
Requests for documents in a Privacy Act system of records must be
in writing.
1) If the record is releasable and readily available
(e.g., an EPA manual), release the record but do not
treat it as a FOIA request. Fees shall be assessed in
accordance with the FOIA policy and billing procedures
(see Chapter 4).
2) If the record (or part of the record) may be subject
to withholding and/or is not readily available, ask
the requester to make the request in writing to the
appropriate Agency or Regional FOI Office. Whenever
there is any doubt about the releasability or the
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availability of information requested orally, ask
that the request be made in writing.
c. Responding to Requests from Other Federal Agencies.
SPA'S policy is to expedite the flow of information to other
"ederal agencies but not to treat requests from them as FOIA
requests. If the request is clearly an official request for
information, respond to the other Agency but not under FOIA. If
the request cites FOIA, notify the other Agency that the request
is being processed, but not under FOIA.
d. Responding to Congressional Requests. Congressional
requests are of two types: (1) requests from an individual Member
of Congress or (2) duly authorized requests from the Congress.
1) A wr-itten request from an individual Member of
Congress citing FOIA is treated as a FOIA request.
If FOIA is not cited, the action office should work
with the Congressional Correspondence Office in
responding to the request (see Contact List,
Appendix VI, Tab Q).
2) A request from the Congress is a written request
signed by the Speaker of the House, President of the
Senate, or chair of a committee or subcommittee con-
cerning matters within their jurisdiction. Such
requests are not processed as FOIA requests. In all
cases the action office should work through the
Congressional Correspondence Office.
e. Responding to Requests from the General Accounting Office
(GAP). Requests from GAO are not FOIA requests. All responses
should be coordinated with EPA's GAO Liaison Office (see Contact
List, Appendix VI, Tab Q).
f. Future Records. .FOIA only establishes requirements for
disclosure of existing records. It does not require the Agency
to place a requester's name on a distribution list for records as
they become available. However, requesters may submit requests
to ascertain whether such records have been created and are available,
Such requests should reference the period of time for which
records are requested. Sample letter A provides language for
responding to requests for future records.
g. Personal Records of Employees. The Freedom of Information
Act only applies to Agency records, not to the personal records
of individual Agency employees. If personal records are responsive
to a FOIA request, the Agency should notify the requester that the
personal records exist but are not covered by FOIA since they are
not Agency records, and accordingly are not being provided.
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1) "Personal Record" Considerations. In determining
whether documents are personal records, the Department
of Justice suggests that the following criteria be
considered. These considerations are closely related
and in some instances overlap. Employees should review
each document in the context of all these criteria.
o Creation - Was the document created by an Agency
employee on Agency time, with Agency materials, at
Agency expense? If not, then it probably is not an
Agency document on that basis alone.
o Content - Does the document contain substantive
information? If not, then it probably is not an
Agency record, on that basis alone.
o Purpose - Was the document created solely for an
individual's personal convenience? Alternatively,
to what extent was it created to facilitate Agency
business?
o Distribution - Was the document distributed to
anyone else for any reason, such as for a business
purpose? How wide was the circulation?
o Use - To what extent did the document's author
actually use it to conduct Agency business? Did
others use it?
o Maintenance - Was the document kept in the author's
possession, or was it placed in an official Agency
file?
o Disposition - Was the document's author free to
dispose of it at his or her personal discretion?
. What was the actual disposal practice?
NOTE: A document created within an agency cannot
be regarded as personal merely on the ground that
its author is free to dispose of it at his or her
personal discretion.
o Control - Has the Agency attempted to exercise
control over the document by requiring that it be
retained on file for a specified time? Did it do
so by requiring the document be created in the
first place? If so, such records are also always
Agency records.
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o Segregability - Is there any practical way to
segregate any personal information in the
document from official business information?
o Revision - Was the document revised or updated
after the fact for recordkeeping purposes?
2) Application of the Considerations. The following
examples illustrate the analysis and application of
the considerations to be made.
0 Example 1. An employee brings a paper to the office
that has been prepared for a class she is attending
at a local university. The employee shows the
paper to her friends during lunch and asks for
their comments. The subject matter of the paper
relates to her work at EPA.
The paper is a personal record and not an
Agency record. The document was not created on
Agency time, with Agency materials nor at Agency
expense. While the content relates to Agency
matters, it was not created to facilitate Agency
business nor was it relied upon or used in conducting
Agency business. The distribution was limited to
friends and was not for any business purpose. The
record was not placed in Agency files, and the
employee was free to remove it from the Agency's
offices and to dispose of it at her discretion.
o Example 2. An employee keeps old yellow telephone
message slips that indicate the names of the callers,
the dates and times of the calls, and the telephone
numbers where the callers can be reached.
The message slips, in this instance, are not
Agency records. Although created by the employee's
secretary at Agency expense, the documents
contain no substantive information, i.e., why the
call was made. The documents were created solely
for the employee's personal convenience and were
not used by anyone other than the employee. The
message slips, in this instance, were retained by
the employee and not placed in Agency files. The
employee was free to destroy the notes at his or
her discretion.
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o Example 3. A supervisor keeps an appointment
calendar on her desk on which she notes upcoming
meetings. On occasion, she notes personal meetings.
Her secretary notes appointments that have been
scheduled for her supervisor.
The calendar is not an Agency record. As in
the previous example, the record was created by
Agency employees on Agency time and at Agency
expense. However, the calendar contains little, if
any, substantive information. The calendar was
created for the supervisor's personal convenience
so that she could organize both her personal and
business appointments. It was not intended for use
by other office employees and was not distributed
to other employees. The Agency did not require the
supervisor to maintain the appointment calendar.
The calendar could be destroyed at any time by the
supervisor.
NOTE: The Administrator has made copies of his official
appointment calendar available to the public. He has also
directed the Deputy Administrator, Assistant Administrators,
Associate Administrators, Regional Administrators, the General
Counsel, and Staff Office Directors, to make their official
calendars available to the public. Since these calendars are
created, in part, to inform the public of what meetings these
individuals have held, they are to be treated as Agency
records.
o Example 4. An Office Director has a daily agenda
prepared listing the activities for each day of the
upcoming week. The agenda is circulated to his
staff to inform them of the schedule.
The daily agenda is an Agency record. The
' document, created at Agency expense by an Agency
employee, was in fact circulated to the staff for a
business purpose. It was created for the express
purpose of facilitating the daily activities of the
office. Any personal matters could be easily
segregated from the business material.
3) Assistance. If any action office is having difficulty
determining whether a particular document is an Agency'
record or a personal record, it should contact the
appropriate legal office for guidance.
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2. PROCEDURAL GUIDANCE FOR RESPONDING TO FOIA REQUESTS
a. Make Sure the Request Adequately Describes the Records.
Carefully read the description of the records sought. If the
description of the records is not sufficient to identify and
locate the records/ contact the requester (by telephone if
possible) and assist him/her in the identification of the records
sought and in formulating the request (see sample letter B,
Appendix I). If the description remains insufficient to reasonably
identify and locate the records, notify the requester in writing
and send a copy to the appropriate FOI Office so that the request
may be closed-out. Before doing this, make every reasonable
effort to identify and locate the requested records.
b. Discuss Requests for Voluminous Records. If the request
is extremely broad or involves a substantial number of records
(e.g. ten file drawers of records on the XYZ Superfund site),
contact the requester (by telephone if possible) and provide
him/her with a full description of the records and the estimated
search and copying costs of the records to ensure that the
requester wants all records (see sample letter B, Appendix I).
c. Locate the Records. Locate the records as promptly as
possible. A list of possible outcomes to the search for records
follows. The appropriate response to each outcome is either
described or referenced.
For records believed to be within EPA's possession:
1) The records requested are believed to be within EPA's
possession and may be obtained promptly. The next
step is to make an initial determination as to whether
(or what portion of) the records may be released (see
Chapters 5 and 6).
2) The records requestedare^believed to be within EPA's
possession but cannot be obtained promptly. In those
rare instances when a record cannot be promptly obtained
by the action office (e.g., the records are located in
the Federal Records Center), the action office should
call and write the requester (see sample letter C,
Appendix I), notify him/her of the delay and provide
a projected date when the record is likely to be
sent. If, after a thorough search, the records are
determined not to exist, follow the instruction for
requested records that do not exist (see Section c.7
below).
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3) Some or all of the records exist but are in the
possession of another EPA office. In this case,
promptly contact the appropriate FOI Office for
rerouting or coordinating ot the Agency's response.
4) The records are available in a public reading room.
Call the requester, inform him/her of the availability
of the documents in a public reading room, and ask
whether he/she would prefer to have the documents
sent or to review them in the public reading room. If
the requester chooses to use the public reading room,
confirm this in writing and send a copy of the confir-
mation to the FOI Office. If the requester prefers
to have the records sent, follow normal FOIA procedures.
5) For records held by EPA and originating with another
Federal agency. When a request for records, includes
records originating in another Federal agency either:
1) respond to the request after consulting with the
originating agency on the releasability of the records,
if necessary, or 2) transfer responsibility for
responding to the other agency, provided the other
agency is subject to FOIA. (Most Federal agencies are
subject to FOIA. Contact the appropriate legal office
when in doubt as to whether another agency is subject
to FOIA.) Whenever the request is referred to another
agency, the requester should be notified in writing
with a copy sent to the appropriate FOI Office so that
the request may be closed out.
6) The records have been published in the Federal
Register or elsewhere by the Federal Government.
Information may be sent to the requester if readily
available within EPA (e.g., a Federal Register Notice).
If the information is commonly available outside of
EPA (e.g., a manual available from the National
Technical Information Service), notify the requester
where he/she may obtain it and what it will cost (see
sample letter D, Appendix I). Send a copy of the
letter to the appropriate FOI Office so that the
request may be closed out.
For records not in EPA's possession:
7) The records requested do not exist. After thoroughly
searching for the requested records and determining
that they do not exist, write the requester that the
records do not exist (see sample letter E, Appendix
I), and send a copy to the appropriate FOI Office so
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that the request may be closed out of the FOIA tracking
system. This response is not a denial of the 'records
since no records exist. Such a determination (i.e.,
a close-out) may be issued by any EPA employee who
has been delegated the responsibility to respond.
Since such decisions cannot be appealed, the Agency
recommends that these decisions be reviewed at the
Division Director level. This review will help to
ensure that the records do not exist in that Division
or elsewhere in the Agency. Offices need not create
records or compile new information to respond to a
FOIA request.
8) The records exist but are only in the possession of
another Federal agency or a delegated State. Notify
the requester in writing (see sample letter F, Appendix
I) that the requested records are not in EPA's possession
and indicate that they can contact the Federal agency
or State Office in question. A copy of the letter
should be sent to the appropriate FOI Office so that
the request may be closed out.
9) The records exist but are only in the possession of
an EPA contractor. If requested records are held by
an EPA contractor but are not located at EPA, as a
general rule, they are not Agency records. This would
be true, for example, of contractor working papers
that have not been turned over to the Agency. Such
requests should be closed out of the FOIA tracking
system following the procedures discussed in Section
c.7 above for records that do not exist. Records
in the possession of a contractor may be Agency records
when the contractor is functioning as a custodian of
the records for the Agency.
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CHAPTER 4: FEES AND FEE WAIVERS
1. GENERAL PROCEDURES
The FOIA authorizes EPA to charge requesters the direct cost
for document search and duplication. In some cases, these costs
are waived. Fees are waived automatically for a limited group
of requesters. These are discussed below. Another group of
requesters gets special consideration for a fee waiver or
reduction. These requesters are listed in Section 2.e later in
this Chapter.
a. Initial Review
1) The action office should first estimate as accurately
as possible the cost of EPA's search and copying
actions (using the fee schedule in Section l.b
below).
2) If the fees are less than $25.00 or if the cost of
collecting the fees would otherwise exceed the amount
collected, no fees will be charged. In general, if
the fees are exactly $25.00 or more, the entire amount
will be charged (e.g. if the cost of EPA's search and
copying is $30.00, the requester would be billed for
$30.00).
3) If the request falls within one of the following
categories, no fees will be charged. (Note that some
of the categories are not considered as requests
subject to FOIA [see Chapter 3]).
- Requests by individuals for records about themselves.
(Specifically this concerns records from a Privacy
Act system of records pertaining to the requester
that are retrieved by the requester's name or
personal identifier such as a Social Security
Number. See 40 CFR, Part 16.) Fees will be
waived only for the first copy.
Requests by the Congress.
Requests by another Federal agency including the
General Accounting Office.
Requests by an EPA contractor or assistance recipient
(e.g., a grantee) when the records are needed in
order to perform work required by the contract,
grant or cooperative agreement.
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4) If the request asks for a public interest fee waiver
or reduction in fees, the action office should determine
whether the fee waiver or fee reduction request should
be granted. (See Section 2, page 4-8.)
b. Calculating the Fees. Fees should be charged for the
search time required to locate responsive records and for the
reproduction of releasable records. The fee schedule is as follows:
1) Employee Search Time
Personnel GS-8 and below. $3.50 will be charged
for each 1/2 hour or any portion thereof.
- Personnel GS-9 and above. $7.00 will be charged
for each 1/2 hour or any portion thereof.
(Example: If a GS-11 employee spends 40 minutes
locating responsive records, the cost for searching
is $14.00. )
Computer Programming. $8.50 will be charged for
each 1/2 hour or any portion thereof.
2) Other Search Costs. Other search costs may include,
* but are not limited to, computer system time, contractor
programming time, contractor search time, and the
transportation of records (when required as a part
of the search). These should be charged at the
actual direct cost to EPA.
3) Duplication Costs
- Paper Copy of Paper Original. 20 cents per page.
Other Duplication Costs. Other duplication costs
may include, Dut are not limited to, the reproduction
of photographs, microfilms or magnetic tapes;
computer printouts; and the transportation of
records (when required in order to reproduce
documents). These will be charged at the actual
direct cost to bPA.
c. Costs not chargeable. No charge may be made:
1) for the delivery of records to the requester.
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2) for the time spent reviewing records to determine
whether they should be released or withheld.
3) for the time spent purging documents of exempt
information.
4) for the time spont duplicating records (this is included
in the 20 cents per page charge).
5) for preparing and reviewing correspondence for the
requester.
6) for materials prepared for free distribution to the
public. A charge for duplication may be made when
printed copies are exhausted and additional photocopies
are necessary.
d. Assure Payment of Fees. If the action office estimates
that the request would require payment of fees equal to or
greater than $25.00, and a waiver in the public interest has not
been requested, (see Section 2, page 4-8), the action
office should see if the requester's letter assures that fees
will be paid up to the estimated amount.
If the letter does not provide the assurance of payment,
the action office should check with the requester (by telephone
if possible) to see if he/she agrees to pay up to the estimated
amount. The requester must give assurance that he/she will pay
fees up to the estimated amount for processing of the request to
continue. The requester is not required to make the actual
payment in advance. NOTE: The requester may wish to modify
the request and limit the records sought to bring the fees to an
amount he or she is willing to pay. Action offices should be
prepared to assist requesters in modifying their requests. In
having a requester assure payment of fees, observe the following
guidelines:
1) 'If the final fees to be charged exceed the amount
agreed to by the requester, contact the requester
again to obtain a revised agreement to pay.
2) All discussions with the requester concerning fees
should be documented in writing by the action office
(offices may want to document such conversations
with Conversation Record, OF-271).
3) If the estimated or actual amount of fees is substantial
(over $100), the action office generally should seek
prepayment of the fees before proceeding with the
search for records.
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4) Only after the requester has agreed (verbally or in
writing) to the payment of fees or submits payment
may the records be released.
5) Time used by the action office to secure pre-payment
or assurance of payment is excluded from the mandatory
10-workday response period.
6) The action office must keep the appropriate FOI
Office apprised of all actions taken with respect to
the payment of fees. This includes furnishing the
FOI Office a copy of all correspondence.
e. Billing Requesters
1) Billing Procedures. If the requester has made
acceptable arrangements to pay, the action office
shall determine the fees, complete the Bill for
Collection (EPA Form 2505-4) and enclose it with the
response letter and requested records. (NOTE: In some
Regional Offices, billing is handled entirely by the
Financial Management Office rather than the action
office.) In any case, the procedures for completing
the Bill for Collection Form are the same. The Bill
for Collection Form must be typed and completed
as follows:
Enter "U.S. Environmental Protection Agency" in the
block captioned "Bureau/Office for Remittance Payable."
Enter the lock box address in the block captioned
"Address for Mailing Payment." (See Lock Box
Addresses under Section e.4, page 4-7.)
Enter the assigned Request Identification Number (RIN)
in the block captioned "Bill No."
Enter the date in the block captioned "Date." (Bill
for Collection should be dated same date as reply
letter.)
- Enter the name and address of the* requester in the
inset block under the heading "Payer."
In the block under the heading "Description," type
"FREEDOM OF INFORMATION ACT PAYMENT REQUEST."
Give all the details relating to information
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requested and fees charged for searching or dupli-
cating records including such items as; computer
system time; contractor computer programming
time; reproduction of photographs, microfilms,
or magnetic tape; computer printouts; and trans-
portation of records.
Enter the total amount of payment requested in
the columns under the heading "Amount Due."
Enter, at the bottom of the form, the name and
telephone number of the responsible official to
contact if there are any questions.
Include with the bill the following statement
concerning tardy payment:
"To avoid additional charges, payment must be
received within 30 days of the bill date. If
not received, interest will accrue at the rate
of _* percent yearly from the bill date until
the date of payment. A late payment handling
charge of $20.00 will be imposed after 30
days with an additional charge of $10.00 for
each subsequent 30-day period. A 6 percent
yearly penalty will be applied on any principal
amount not paid within 90 days of the due date."
Make sure to remind the requester to refer to the
RIN number when paying the bill.
A Sample Bill for Collection Form is attached at
Appendix II, page 3.
2) Distribution of the Bill for Collection
. - Mail the original to the FOI requester along with
the reply letter and records.
- Forward the first copy (Pink-Official Receipt),
the second copy (Blue-Accounting Copy), and the
third copy (Green-Administrative Billing Copy (1))
to the Headquarters Financial Management Office
or the Regional Financial Management Office
(Attention: Accounts Receivable) as appropriate
(see Contact List, Appendix VI, Tab Q).
wThe interest rate, set by Treasury, changes quarterly. As of
10/85, it is set at 9 percent. To determine the current
quarterly rate, call your FOI Officer or Coordinator.
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Forward the fourth copy (Green Administrative
Billing Copy (2)) to the appropriate Freedom of
Information Office together with two copies of
the response letter.
Retain the fifth copy (Green Administrative
Billing Copy (3)) together with a copy of the
response letter, request letter and other
documents for action office files.
3) Billing for Prepayment. If the requester has not made
acceptable arrangements to pay and the action office
estimates the fees will exceed $25.00, an advance
payment may be requested before proceeding with the
search for records. If the estimate or actual amount
of fees is substantial (over $100), advance payment
generally should be secured. To do this, the action
office estimates the fees, completes a Bill for Collection
(EPA Form 2505-4), and mails the bill together with
an interim response to the requester asking for advance
payment within 30 calendar days of the bill date (see
sample letter G, Appendix I). (NOTE; No notice of
interest, penalties or handling charges should be
included on the bill for prepayment).
Advance payment is requested in the form of a check
or money order made payable to the U.S. Environmental
Protection Agency and mailed to the appropriate Head-
quarters or Regional Lock Box address (see addresses
under section e.4, page 4-7). Ask the requester to
please include the RIN on the check or money order.
The action office simultaneously forwards copies of
the interim response and Bill for Collection to the
appropriate Financial Management Office and the appro-
priate Freedom of Information Office. Upon receipt
of the advance payment, the Financial Management
Office notifies the action office's contact person,
whose name appears on the Bill for Collection. Upon
notification from the Financial Management Office,
the action office searches for and duplicates the
records, calculates the actual fees, and forwards the
requested records to the requester.
If after 30 days the action office has not been notified
by the Financial Management Office of receipt of
advance payment, the action office should call the
Financial Management Office and confirm that no payment
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4)
was received. Once it confirms that payment has not
been received, the action office shall close the file
on the request and forward a written notification to
the appropriate Freedom of Information Office and the
appropriate Financial Management Office.
If the actual cost is $25.00 or greater than the
advance payment then the action office has to complete
an amended Bill for Collection for additional fees
and mail it with the final response and records. If
the advance payment is more than the actual cost, a
refund shall be made in accordance with the procedures
described in Section e.6, page 4-8.
Method of Payment. All payments shall be in the
form of a check or money order payable to the "U.S.
Environmental Protection Agency" and shall be sent
(accompanied by the top portion of the Bill for
Collection, EPA Form 2505-4) to the appropriate lock
box address tor Headquarters or the Regions (see list
of addresses below). In accordance with the U.S.
Treasury (TFRM 6-8000) and the Debt Collection Act of
1982, payment is due within thirty calendar days of
the date of billing.
LOCK BOX ADDRESSES
EPA - Washington
P.O. Box 360277M
Pittsburgh, PA 15251
EPA - Region 1
P.O. Box 360197M
Pittsburgh, PA 15251
EPA - Region 2
P.O. Box 360188M
Pittsburgh, PA 15251
EPA - Region 3
P.O. Box 360515M
Pittsburgh, PA 15251
EPA - Region 4
P.O. Box 100142
Atlanta, GA 30384
EPA - Region 5
P.O. Box 70753
Chicago, IL 60673
Headquarters
EPA - Region 6
P.O. Box 360582M
Pittsburgh, PA 15251
EPA - Region 7
P.O. Box 360748M
Pittsburgh, PA 15251
EPA - Region 8
P.O. Box 360859M
Pittsburgh, PA 15251
EPA - Region 9
P.O. Box 360863M
Pittsburgh, PA 15251
EPA - Region 10
P.O. Box 360903M
Pittsburgh, PA 15251
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5) Tracking Payments. The action office must forward
the Bill for Collection (EPA Form 2505-4)
simultaneously to the requester, to the Agency or
Regional FOI Office, as appropriate, and to the
Headquarters or Regional Financial Management Office,
as appropriate. THE BILL FOR COLLECTION MUST BE
DATED THE SAME DATE AS THE RESPONSE LETTER* Upon
receipt of the copy of the Bill for Collection, the
Financial Management Office will establish an accounts
receivable and track the bill to ensure that payment
is received from the requester within 30 days of the
billing date. If at the end of the 30 days the
requester has not paid, the Financial Management
Office sends a written notification (DEMAND .LETTER)
to the requester stating that his/her account is
delinquent and that interest and handling charges are
being assessed. (The Financial Management Offices will
work with Headquarters and Regional FOI Officers to
ensure all FOIA-related receivables are properly
recorded.)
6) Refund of Payment. If a refund is due, the action
office shall notify the appropriate Financial
Management Office and the appropriate Freedom of
Information Office in writing. Upon receipt of
written notification from the action office that a
refund is due, the Financial Management Office initiates
a refund and prepares EPA Form 2500-3, General Ledger
Code Sheet, to record the transactions in the
accounting system. As a matter of policy refunds of
amounts under $1.00 are not issued unless specifically
requested.
2. PUBLIC INTEREST FEE WAIVERS OR REDUCTION OF FEES
a. General Requirement. The Freedom of Information Act
provides that FOIA fees may be reduced or waived if the Agency
determines that such action is in the public interest because
furnishing the information may be considered as primarily
b.enefitting the general public.
b. Fee Waiver Policy. EPA needs to ensure the fullest
possible dissemination of information about the Agency's activities
because its programs have an impact on every citizen in this
country. It is, therefore, EPA's policy to apply the public
interest standard liberally when considering fee waiver or
reduction requests.
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c. Procedural Guidelines
1) Initial Decision on Waiver. The action office assigned
responsibility for responding to an initial request
makes the initial decision on any request for a public
interest fee waiver or reduction. This decision
requires full understanding of the records being requested
2) Obtain Needed Information. The action office should
communicate (by telephone if possible) with the
requester if additional information is needed to
determine whether the fee waiver or reduction is to be
granted (see section 2.f, page 4-10).
3) Documentation. A decision to deny a fee waiver
request or to grant only a portion of the fee waiver
request (a fee reduction) must be promptly communicated
to the requester by telephone if possible, with
subsequent written documentation. Any fee waiver
request denial must include the reason for the denial
and mention the right to appeal. The requester should be
informed that if an appeal is made, the appeal letter
should be addressed to the Agency FOI Officer. Appendix
I, sample letter H, offers sample denial language.
4) Multiple Copies. The Agency will consider waiving or
reducing fees only for single copies of documents.
The Agency is not required by FOIA to make multiple
copies. If additional copies are requested and are
provided at the Agency's discretion, full duplication
fees will be charged.
5) Delays. The decision to grant or deny a fee waiver
request may be delayed if it is necessary to identify,
by searching, the records requested.
6) Waiver Requests Should Be Written. Normally, the
requester must ask for the waiver or reduction of fees
in writing. The Agency has no responsibility to ask a
requester if a fee waiver is desired. This does not
preclude the action office from contacting a requester,
in appropriate cases, to determine whether a fee waiver
request was inadvertently omitted from the request.
Contacting the requester would be appropriate, for
example, in the case of a request from a newspaper
that does not mention a desire for a public interest
fee waiver.
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7) Precedents. The granting of a fee waiver for one
request does not mean that a fee waiver will
automatically' be granted on a later, related request.
8) Voluminous Records. When a request involves a voluminous
amount of material and a fee waiver is requested, the
action office should consider asking the requester to
review releasable records at an EPA location convenient
to the requester and the Agency, or consider tailoring
the request to only those records actually sought.
d. Assistance in Making Decisions. Action offices wishing
additional guidance on the Agency's public interest fee waiver
policy should contact their FOI Coordinator or FOI Officer. If
additional consultation is needed, the action office and FOI
Coordinator or FOI Officer should contact the Office of External
Affairs.
e. Requests Entitled to Special Consideration. To assure
consistent application of the Agency's fee waiver policy, the
following categories of FOIA requests that ask for a fee waiver
will receive special consideration for a waiver or reduction
of fees:
1) requests from the news media,
2) requests from public interest groups,
3) requests from State, local, and foreign governments
(except where covered by negotiated agreements), or
4) requests from organizations and groups engaged in
cooperative projects with EPA.
f. Substantive Criteria for Fee Waivers. Requests for
public interest fee waivers or reductions must be decided on a
case-by-case basis. In reviewing requests, consider the following
criteria:
1) The public interest in the subject matter of the
documents. If there is no public interest, there is
no basis for granting a waiver. To determine the
public interest in the subject matter of the records
requested, the Agency considers the "public" which
may find the subject to be of interest. Although
the "public" to be benefitted need not be so broad as
to encompass all citizens, the interest should involve
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a significant segment of the public and not just the
interest of the individual requester. Examples of a
significant segment of the public include public
interest organizations, environmental groups, the
media, or a community.
2) The value of the records themselves to the public.
The disclosable records should be informative on the
issue found to be of public interest. Action offices
should carefully review all responsive records to
ensure that the records would contribute to the
issue that is of public interest. For example, in
some cases prior disclosure of records may have
reduced the public interest in the subject' matter of
the documents. If the action office believes that
there is little public interest in the subject matter
of the FOIA request, denial of a fee waiver request
is appropriate. The fee waiver denial, however,
should not be issued without careful consideration
by the action office of the public interest issues.
Overly broad requests may encompass records of little
or no value to the public. Fees relating to these
records should not be waived.
3) The availability of the information. If the infor-
mation is already available and in the public domain,
(the information has been published or is otherwise
available on the public record), denial of the fee
waiver request is proper. For example:
Court records that are available for inspection at
the court are already in the public domain; and
Records available in EPA libraries, public dockets,
reading, rooms or public libraries accessible to
the public at the time of a FOIA request, are
already in the public domain.
Information that has been widely disseminated
(e.g., through newspapers and magazines).
4) The identity of the requester. A requester's identity
and ability and intention to disseminate the information
to the public should be evaluated. Therefore, when
requesting a fee waiver, requesters should specifically
describe the purposes for which they intend to use the
requested materials. Unsubstantiated assertions by
requesters that they are "researchers" or have "plans
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to write a book" are not sufficient. Action offices
may contact the requester if sufficient information
has not been provided.
5) Personal interest to the requester. This assessment
is based upon information provided by the requester as
well as information independently available to the
Agency. Interests that do not justify a fee waiver
include commercial interests, the interests of requesters
in records pertaining to themselves, and the interests
of requesters seeking records for use in litigation.
Even though the records are to be used in litigation,
there may be instances in which the furnishing
of records can be considered as primarily benefiting
the general public. An example would be records
requested by a public interest organization challenging
a major Agency action that affects a broad section of
the general public. A fee waiver may be granted if
there is both a personal interest of the requester and
a public interest.
g. Reduction in Fees. Under the FOIA and Agency regulations,
FOIA fees may be reduced (in contrast with a total fee waiver)
when release of the records is in the public interest. The
substantive criteria for a reduction in fees are the same as
those for total fee waiver. A reduction in fees can occur when
not all of the records requested meet the substantive criteria
for granting a fee waiver, (i.e., only part of the records
would benefit the general public if released). Examples of when
a reduction in fees would be appropriate include:
1) Part of the records may already be in the public domain,
2) Some of the records may relate only to the personal
interests of the requester,
3) Some records would have little or no value to the
public if disclosed,
4) Some records may involve a subject that is not of
public interest.
Fees in these cases should be prorated based on the percentage
of records primarily benefitting the general public.
h. Public Participation Requirements. EPA regulations (40
CFR, Part 25) contain requirements and suggested program elements
for public participation under the Clean Water Act, the Resource
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Conservation and Recovery Act and the Safe Drinking Water Act.
Information and assistance requirements include the following:
1) A requirement that whenever possible, EPA provide
copies of documents of interest to the public free of
charge. This requirement only relates to documents
that come under the Acts covered by 40 CFR, Part 25.
Free copies may not be possible when requests are
for voluminous amounts of material and copying resources
are limited. When a charge is made, the FOIA fee
schedule should be used.
2) When free copies of documents are limited, the free
copies should be distributed to those requesters
whose resources are limited (e.g., private citizens
would receive preference over corporations).
i. Fee Waiver or Fee Reduction Appeals. When an action
office denies a request for a public interest fee waiver or
reduction, the requester must be informed in writing of the decision
and of the right to appeal the denial by letter addressed to the
Agency FOI Officer. The FOI Officer will promptly refer any
appeal to the Office of External Affairs for a decision. The
Office of External Affairs will review the file and consult as
appropriate with the action office and the Office of General
Counsel. The review will be de novo, i.e., the request will
be reviewed as if it were a new request.
1) The Office of External Affairs will notify the requester
in writing of its decision. The decision will normally
be issued within ten days. (See also Chapter 10 on
Appeals.) Copies of the decision will be sent to the
action office, the Agency FOI Officer, and the Office
of General Counsel.
«
2) -A requester may choose to pay fees while appealing a
fee waiver denial to the Office of External Affairs
and still be eligible for a refund if their appeal is
granted.
j. Court Review of Denials of Requests for Fee Waivers or
Reductions. A requester may seek judicial review of the Agency's
denial of a request for a public interest fee waiver or reduction.
The courts will review the Agency's decision, which may be
overturned only if found to be arbitrary, capricious, or.not in
accordance with applicable law. The court's review is limited to
the administrative record. The Agency cannot supplement the
record once the matter is in court.
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3» ADMINISTRATIVE FEE WAIVERS
'a. Fees Less Than $25.00 Are Waived. All fees totaling less
than $25.00 per request are waived. This reflects the Agency's
determination that the cost to the Agency of billing and recording
the payment of FOIA fees is at least $25.00. (For example: If
the request involves an hour of search time by a GS-9 level employee
($14.00) and reproduction charges ot $11.20 (56 pages at 20 cents
a page), fees for the request total $25.20. The total ($25.20)
should be collected.)
b. Difference Between Advance Fees and Final Fees Is Less
Than $25.00. If the difference between the advance fees, and the
actual fees is less than $25.00, the difference is waived and not
billed. This reflects the Agency's determination, in accordance
with .40 CFR 2.120(a)(3 ) (iii) , that the costs of collecting the
remaining fees would exceed the amount outstanding.
c. Each Request Is Separate. As a general rule, each written
request for records will be viewed as a separate request for fee
calculation purposes. However, in cases in which it appears that
a requester has divided the request into several parts in an
attempt to avoid paying fees, the parts may be considered together
for billing purposes. The parts of the request should relate to
records existing in the Agency at the time of the first part of
the request.
4. DELINQUENT REQUESTERS
Each month the Financial Management Division, Financial
Reports and Analysis Branch, will furnish a list to the Agency
FOI Officer of requesters not submitting payment within 60 days.
The' Agency FOI Office will maintain the delinquent list and
forward copies to the Regional FOI Officers. A requester cannot
be placed on the delinquent list if an appeal for a fee waiver/
reduction is pending.
If a requester whose name appears on the delinquent list
makes a new request, the FOI Office shall inform the requester
that EPA will not process the request until payment of the overdue
fee from the earlier request is submitted (see sample letter I,
Appendix I). Any request made by an individual who specifies an
affiliation with or representation of a corporation, association,
law firm, or other organization shall be deemed to be a request
by the corporation, association, law firm or other organization.
If an organization placed on the delinquent list can show
that the person who made the request for which payment is overdue
did not make the request on behalf of the organization, the
organization will be removed from the delinquent list, although
the name of the individual shall remain on the list.
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CHAPTER 5: RELEASING RECORDS
1. WHO MAY RELEASE RECORDS
a. Authorized Officials. The Deputy Administrator, Assistant
Administrators, Associate Administrators, the Inspector General,
the General Counsel, Heads of HQ Staff Offices and Regional
Administrators are authorized under section 2.113(b) of EPA's
FOIA regulations to issue initial determinations to release
records in response to FOIA requests.
b. Redelegation of Authority. When records are to be
released in full, these officials may redelegate their authority
downward to any level of the EPA staff. Chapter 1, Section 8.a,
describes the redelegation process.
2. WHAT MAY BE RELEASED
a. Presumption to Release. FOIA is intended as a disclosure
law, not a withholding law. In handling all FOIA requests,
remember that there should be a presumption in favor of releasing
information. Information should be released unless it falls
into one of the nine exemption categories (covered in Chapter 7).
o All releasable EPA records are subject to'public dis-
closure on request, regardless of whether the requester
has shown any justification or need for the documents
requested.
o Some information legally exempt under FOIA is, by EPA
policy, normally released to the public. Such
discretionary release is discussed in Chapter 9.
b. Existing Records. Under FOIA, only existing Agency
records are subject to release. Offices need not create records
or compile new information to respond to a FOIA request.
NOTE: Offices may create new records if it would be easier
or less expensive, or if public understanding of more complex
documents would thereby be facilitated. In fact, Part 25 of
EPA's regulations on public participation (Title 40 CFR, Part
25) specifically encourages offices to summarize lengthy and/or
technical documents covered by that part.
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c. Cut-Off Date for Search. Ordinarily, the Agency is
responsible for releasing only those records that exist as of
the date of receipt of a request by the FOI Office. If there
has been a long delay in responding to the request, the action
office may elect to provide more recent documents created after
receipt of the request. The response should inform the requester
if a different cut-off date has been used.
d. Examples of Releasable Records
1) As a general rule of thumb, release: final orders
and opinions in administrative actions; official
policy statements, interpretations and guidelines
that have been adopted by the Agency; official
Agency manuals and similar instructions; and
position descriptions.
2) The type of document per se is not the sole factor in
determining releasability. Each document - e.g. memo,
drafts, notes - needs to be analyzed on its own merits
for releasability.
e. Consultation. If there are any questions concerning a
document's releasability after reading Chapters 6 and 7, consult
with the appropriate FOI/legal office.
3. TIME FRAME FOR RELEASING RECORDS
a. 10-Workday Time Limit
An initial determination to release a requested record must
be made and a letter mailed to the requester by the tenth workday
after receipt of a request by the FOI Office. While this does
not mean the requested record must be released by that date,
(e.g., if copying is not yet completed), the record should be
forwarded to the requester promptly thereafter.
NOTE: As a matter of policy, EPA personnel replying to FOIA
requests ordinarily should release records simultaneously with
determination letters. This will help assure prompt disclosure,
ease administrative and recordkeeping burdens, and avoid confusing
the requester.
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b. Extensions. The 10-workday time limit may be extended
up to an additional 10 workdays if it is "absolutely necessary"
because of:
o the need to search for and collect records from field
or other separate offices,
o the need to search for, collect and examine a voluminous
amount ot information, or
o the need to consult with another agency or EPA component.
If an extension is necessary, the responsible action office
should notify the appropriate FOI Office and then contact the
requester in writing (see sample letter J, Appendix I) prior to
the end of the initial 10-workday response period, informing him/her
of the extension, why it is necessary and when the office expects
to issue its determination. A copy of this letter should be
sent to the appropriate FOI Office and FOI Program Coordinator.
c. Legal Recourse. All EPA personnel responding to FOIA
requests should bear in mind that if a request is not answered
within 10 workdays (or 20 workdays if extended), the requester may
initiate legal action in federal district court.
4. PREPARING RELEASE LETTERS
a. Basics. Every EPA FOIA release letter should:
o be cordial and convey an attitude of cooperation,
o include the applicable Request Identification Number
(RIN),
o include an itemized enclosure list or, where records
are numerous, a general description of the enclosed
records,
o include necessary carbon copy/blind carbon copy
information for recordkeeping purposes.
b. Sample Release Letter. A copy of a sample full release
letter, which both acknowledges a positive determination and
includes the requested record(s), is included at Appendix I, sample
letter K.
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c. Sample Release Letter Without Records. In instances when
the requested record(s) cannot be released simultaneously with
the release determination, language to that effect should be
included in the release letter. A sample release letter
without records is included at Appendix I, sample letter L.
5. RECORDKEEPING
Whenever a release letter is sent to a requester, two copies
of it should also be sent to the Agency or Regional FOI Office
responsible for tracking the request. In addition, if there is
a fee charged, a copy of the invoice should be sent to the
appropriate Financial Management Office (see Chapter 4,'
Section l.e). Finally, the FOI Program Coordinator should also
receive a copy of the release letter, if appropriate. Requirements
for keeping records or files on FOIA requests are contained in
Appendix V.
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CHAPTER 6: WITHHOLDING RECORDS
1. WHO MAY WITHHOLD RECORDS
a. Authorized Officials. The authority to make initial
determinations to withhold records is delegated to the Deputy
Administrator, Associate and Assistant Administrators, Heads
of HO Staff Offices, Regional Administrators, the General
Counsel and the Inspector General.
b. Redelegation of Authority. Decisions to withhold, and
consequently deny in part or in full the release of existing,
located documents, may be redelegated to persons not lower
than the division director level or equivalent position.
The only except-ion is when an initial denial is based
solely on a determination by the action office that the records
requested may be entitled to confidential treatment under EPA
regulations governing confidential business information
(§2.204(d)(1)). In this case, authority may be redelegated
to any EPA employee.
2. WHAT MAY BE WITHHELD
a. FOIA Exemptions. Records should be released unless
they fall into one or more of the nine exemption categories
established by FOIA. These exemptions provide the basis for
withholding under FOIA. The most common exemptions (see Chapter 7)
that apply to FOIA requests received by EPA are:
o Exemption 4 - Trade Secrets, Commercial or Financial
Information (Confidential Business
Information),
o Exemption 5 - Privileged Inter- and Intra-Agency
Memoranda, and
o Exemption 7 - Investigatory Records Compiled for Law
Enforcement Purposes.
b. Partial Denial. If records contain both exempt and
non-exempt information, the non-exempt information must be
disclosed if the exempt material is "reasonably segregable" and
the necessary deletions can be made without making the record
unintelligible. Section 6 of this chapter (page 6-5) sets out
the procedures for partial denial.
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c. Discretionary Release. If a record in EPA's possession
does not fall into one of the nine exemption categories, its
release is mandatory. If the record is legally exempt
hy virtue of Exemption 2, 5 or 7 of the Act, it nonetheless
may be released at the Agency's discretion (see Chapter 9).
NOTE: Records contained in a Privacy Act system of records
may not be released at the Agency's discretion.
3. PRIOR DISCLOSURE
a. Effect of Prior Disclosure. Previous disclosure of
documents to the public, depending upon the circumstances of
the release, may impair the ability of the Agency to withhold
the records in response to a future request, even if the
exemption is warranted.
In general, once a record has been released under FOIA,
that record cannot later be withheld from a subsequent
requester. An exception would be where, for example, confidential
business information can be released to the business that
submitted the information, but would still be withheld from
other requesters. Where an agency mistakenly discloses the
contents of a record, it cannot always expect to be able to
withhold the record in response to a future FOIA request.
b. General Pules Regarding Prior Disclosure
1) Circulation of records within an agency or between
Federal agencies does not prohibit the agency from
subsequently- withholding the records.
2) Disclosure of predecisional records to advisory
committees or to the Congress does not prevent
future withholding.
3) When an agency is compelled to release a document
under limited and controlled conditions (e.g.,
release of documents under protective order in an
administrative proceeding), it is not barred from
later invoking applicable FOIA exemptions.
4) Where a prior disclosure has fulfilled a legitimate
government purpose (e.g., disclosure of enforcement
information to a delegated State), a waiver has not
necessarily occurred and the records may be withheld.
5) Where a prior disclosure was unauthorized (e.g., a
"leak"), a waiver has not occurred and the records
may be withheld.
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4. TIME FRAME FOR DENYING REQUESTS
a. 10-Workday Time Limit. An initial determination to deny
requested records must be made and mailed to the requester by
the tenth working day after receipt of a request by the FOI
Office.
b. Extensions. As in the case with releasing records,
the 10-workday limit may be extended for up to an additional 10
workdays while considering withholding records if it is
"absolutely necessary" because of:
o the need to search for and collect records- from
field offices or other separate offices,
o the need to search for, collect and examine a
voluminous amount of information, or
o the need to consult with another agency or EPA
component.
If an extension is necessary, the responsible action office
should contact the requester in writing (see sample letter J,
Appendix I) prior to the end of the initial 10-day response
period, informing him/her of the extension, why it is necessary,
and when the office expects to issue its determination. A copy
of this letter should be sent to the appropriate FOI Office and
FOI Program Coordinator.
c. Legal Recourse. All EPA personnel responding to FOIA
requests should remember that if a request is not answered within
10 workdays (or 20 workdays if extended), the requester may
initiate legal action in federal district court.
5. DENIAL LETTER
a. Basics. Every EPA FOIA denial letter should:
1) be cordial and convey an attitude of cooperation,
even though the response is a denial;
2) include the applicable Request Identification
Number (RIN);
3) include an itemized list of the withheld records,
a reference and summary of the applicable FOIA
exemption(s) for each (use the statute for reference
purposes), and any additional information that may
help the requester understand the Agency's denial.
An itemized list is not required when /the denial
does not disclose the existence or non-existence of
records, see Section 5.c below. The itemized list
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should normally include the type of record, the
author's name (the "to" and "from" in the case
of letters and memoranda), the date, the subject,
the number of pages, the specific statutory
exemption(s), and the reason(s) for withholding.
If Exemption 5 or 7 is the basis for the denial
(see Chapter 7), the letter should specify the
particular privilege of Exemption 5 relied upon
(e.g., the deliberative process privilege) or the
particular sub-section of Exemption 7.
In the case of a large number of similar records,
the records may be listed by general category (for
example, 30 bills of lading submitted by company X
relevant to the XYZ Superfund site);
4) include the name and title of the EPA employee re-
sponsible for directing issuance of the denial, if
that person is different from the signer of the
determination letter;
5) state that the requester has the right to appeal the
initial denial by sending a written appeal to the
Agency FOI Officer within 30 days of receipt of the
denial letter;
6) include the signature and title of the duly authorized
Agency employee issuing the denial (generally at
the division director level or higher); and
7) include necessary carbon copy/blind carbon copy
information for recordkeeping.
b. Sample Denial Letter. A copy of a sample denial letter
is included at Appendix I, sample letter M.
c. Special Circumstances. In certain limited cases,
confidential business, confidential personal or confidential
investigatory information could be disclosed by a denial
acknowledging the mere existence of certain EPA records.
Agency personnel should take care in such casejs to refrain
from disclosing either the existence or non-existence of such
records. They should issue a denial stating that the request
is denied because "either the records do not exist or they are
exempt from mandatory disclosure under the applicable provision
of FOIA." No such determination shall be issued without the
concurrence of the Office of General Counsel, Contracts and
Information Law Branch.
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d. Reminder. Since denial letters usually form the
basis of EPA's position during subsequent appeals (and often
in litigation as well), they should be clear, well-reasoned
and comprehensive.
6. PARTIAL DENIAL OF RECORDS
NOTE: A partial denial of records is also a partial release
of records; the terms are used interchangeably in this section.
a. Policy. Some requested documents contain both exempt
and non-exempt information. EPA's FOIA regulations (section
2.103) stipulate that in such cases the non-exempt.portion(s)
be forwarded to the requester after the exempt portions have
been deleted. (NOTE: Partial denial also applies to requests
for several records, some of which are releasable and some
exempt.)
For example, investigatory records (compiled for law enforce-
ment purposes) that contain both exempt and non-exempt informa-
tion should be purged of the exempt information, and the remainder
released. Specifically, the action office should delete those
exempt portions of the record that would result in harm to the
government's investigation and release those non-exempt,
reasonably segregable portions that would not harm the govern-
ment's investigation.
b. Guidelines
1) Title 5 of the U.S. Code (5 U.S.C. 552(b)) states
that all "reasonably segregable" material should be
disclosed.
2) Deletions of portions of a record of less than a
sentence in length are encouraged if the meaning
of the sentence is not obscured.
3) Any information otherwise disclosable that is
"inextricably intertwined" with exempt information
may be withheld.
4) To determine which portions of a record must be
deleted, see the discussion of the nine FOIA
exemptions in Chapter 7.
5) Do not purge proprietary information that belongs to
the specific requester. For example, confidential
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business information is generally available to the
submitter of the information. Personal information
about an individual (such as a Social Security
number) is generally available to that individual.
6) Doubts about the intelligibility of a document after
all necessary deletions have been made should be
resolved in favor of release.
c. Fees. Normal FOIA fees for search time and copying
costs apply to requests for records that are only partially
released. The Agency may not, however, charge any additional
fees for its time or expenses spent purging a document of exempt
information.
d. Sample Partial Denial Letter. Guidelines under section
5.a. of this chapter, should be followed in preparing a partial
denial letter. A sample partial denial letter is included at
Appendix I, sample letter N.
e. Reminder. Like full denial letters, partial denial
letters usually form the basis of the Agency's position during
subsequent appeals (and often litigation as well). They should,
therefore, be clear, well-reasoned and comprehensive.
7. RFCORDKEEPING
a. Copies to FOI Office. Whenever a full or partial
denial letter is sent to a requester, two copies of the letter
should be sent to the Agency or Regional FOI Office and one copy
should be sent to the FOI Program Coordinator responsible for
tracking the request.
b. Copies on File. In addition, action offices should
keep the request, a copy of the denial letter, the withheld
records or a list of the withheld documents adequate to identify
them, and any additional correspondence relating to the request
on file. The action office should be prepared to make the
file available to the Office of General Counsel in case an
appeal is filed.
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CHAPTER 7: THE NINE EXEMPTIONS UNDER FOIA
1. OVERVIEW
FOIA establishes nine exemptions which provide the only
basis for withholding information. The exemptions may apply
singly or in combination to a given request. If information
does not fall under any of the exemptions, there is no basis
for withholding. The nine exemptions are listed in the box
below and discussed at length in the body of the chapter.
If you have questions concerning whether specific documents may
fall under any of the exemptions, consult the appropriate FOI
or legal office.
Exemption 1 - Matters of National Defense or
Foreign Policy
Exemption 2 - Internal Agency Rules
Exemption 3 - Information Exempted by Other
Statutes
Exemption 4 - Trade Secrets, Commercial, or
Financial Information (Confidential
Business Information)
Exemption 5 - Privileged Inter- or Intra-Agency.
Memoranda
Exemption 6 - Personal Privacy
Exemption 7 - Investigatory Records Compiled for
Law Enforcement Purposes
Exemption 8 - Records of Financial Institutions
Exemption 9 - Geographical or Geophysical Infor-
mation and Data Concerning Wells
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2. THE NINE EXEMPTIONS
a. Exemption 1 - Matters of National Defense or Foreign
Policy. This exemption authorizes an agency to withhold
information concerning national defense or foreign policy.
1) To qualify under this exemption, the information
must fall under the criteria established by Executive
Order (Executive Order #12356 implementing the
National Security System) to be classified in the
interest of national defense or foreign policy and
in fact be properly classified pursuant to procedural
and substantive criteria contained in the Executive
Order.
2) Certain information may be classified or reclassified
after EPA has received a request for it under FOIA.
Special approvals are required. No EPA document may
be classified or reclassified once a request for the
document under FOIA or Privacy Act has been received,
unless the classification is clearly consistent with
Executive Order 12356 and is authorized by the
Administrator (see Facilities and Support Services
Manual, Volume 4850, Security, Part -2, Document
Security, Chapter SCR 2-03, Classification).
3) This exemption applies infrequently to FOIA requests
received by EPA although it could apply to certain
international documents (e.g., a joint U.S./Canadian
study on acid rain with foreign policy implications).
b. Exemption 2 - Internal Agency Rules. This exemption
protects records "related solely to the internal personnel
rules and practices of an agency."
1) Internal matters of a relatively trivial nature for
which there is not substantial and legitimate public
interest in disclosure are encompassed under this
exemption. Examples include: documents governing
staff use of parking facilities, statements of
policy as to sick leave, and file numbers, routing
stamps and other administrative markings. The
rationale for such withholdings is to prevent un-
warranted administrative burden.
2) As a matter of policy, EPA does not withhold records
of a trivial nature, even though such records fall
within Exemption 2. Discretionary release of such
records is encouraged (see Chanter 9).
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3) Exemption 2 also has been interpreted to encompass
more substantial internal matters, the disclosure
of which would allow circumvention of a statute or
agency regulation. In some cases, those portions
of an internal agency enforcement manual that reveal
investigatory techniques or guidelines could be
exempted from disclosure.
c. Exemption 3 - Information Exempted by Other Statutes.
Under this exemption, information that is specifically exempted
from disclosure by another Federal statute, which has been
enacted by Congress, is also exempt from disclosure .under FOIA.
1) Examples include: identities of "whistleblowers"
under the Inspector General Act and statements of
government witnesses relating to federal criminal
prosecutions under the Jencks Act.
2) The statute in question must (1) leave no discretion
as to the requirement that matters be withheld
from the public.or (2) establish particular
criteria for withholding or refer to particular
types of matters to be withheld.
«
3) The Privacy Act is not an Exemption 3 statute.
Privacy considerations are covered under Exemption
6 or 7(C).
d. Exemption 4 - Trade Secrets, Commercial or Financial
Information (Confidential Business Information). This exemption
allows the Agency to withhold trade secrets and commercial or
financial information obtained from a person and privileged or
confidential. EPA has developed regulationsto elaborate on
Exemption 4, which are discussed under Confidentiality of
Business Information (Subpart B of 40 CFR Part 2).
1) As a matter of policy, EPA only releases information
that has been claimed as business confidential when
a final determination has been made that the information
is not entitled to confidential treatment and the
business has received appropriate notice of the
decision.
2) Refer to Chapter 8 for a detailed discussion of
Confidential Business Information (CBI).
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e. Exemption 5 - Privileged Inter-Agency or Intra-Agency
Memoranda. This exemption allows the Agency to withhold from
disclosure inter-agency or intra-agency memoranda or letters
which fall under one or more of the following privileges:
- the deliberative process privilege;
- the attorney work-product privilege;
- the attorney-client privilege;
- the government commercial information privilege;
- the expert witness report privilege; and
- the confidential informant privilege.
1) Agency Discretion and Waiver. Even though a
document falls under one of the privileges," the
Agency encourages the discretionary release of the
documents, unless release would significantly harm
the Agency decisionmaking process. All of these
privileges may be waived it the Agency has disclosed
the documents to third parties (see Chapter 6,
Section 3 on Prior Disclosure).
2) Inter- or Intra-Agency Records. Exemption 5 only
applies to inter- or intra-agency records. Intra-
agency records are those transmitted within EPA
and include reports prepared by outside consultants
at the request of the Agency. Recommendations
from State officials to EPA may be considered intra-
agency records in limited circumstances when EPA
has solicited State comments, has a formal relationship
with the State, and the records concern a specific
deliberative process, (The Office of General Counsel
or Regional Counsel should be consulted in these
instances.)
Inter-Agency Records include only those transmitted
between Federal agencies, but generally not those
transmitted between Federal and State agencies.
3) The Privileges under Exemption 5.
o The Deliberative Process Privilege. This privilege
incorporates the traditional government privilege
against discovery of government documents. The
purpose of this privilege is to protect the
quality of the Agency's decisionmaking process
(i.e., to protect against premature disclosure of
proposed policies before they are adopted), to
encourage candid and franK discussions among
Agency officials, and to avoid premature disclosure
which could mislead the public.
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- Final and Post-Decisional Documents. Final decision
documents and post-decisional documents may not
be withheld under the deliberative process privilege.
These include post-decisional analyses or explanations
of a final decision as well as descriptions of
Agency efforts to enforce current Agency policies.
Also/ documents can lose their predecisional
status if they are adopted, either formally or
informally, as the Agency's final position on a matter,
or if they are specifically incorporated by
reference in a final Agency decision. Similarly,
the deliberative process privilege does not allow
the withholding of "Agency working law," such as
guidelines, orders, decisions or interpretations
that are used to make decisions affecting the
public.
- Settlement Documents. Some courts have held that
documents transmitted between the government and
third parties during settlement negotiations are
not inter- or intra-agency documents, but have
indicated much sympathy for withholding such
documents from public disclosure for policy reasons.
Settlement documents should be withheld only when
policy reasons militate strongly against disclosure.
The Attorney Work-Product Privilege. This privilege
allows the withholding of documents prepared in
anticipation of possible litigation (which can
include administrative proceedings). It covers
all documents prepared by an attorney or under
his/her supervision, such as reports prepared by a
consultant or program employee. Litigation need
not have commenced but it must be reasonably
contemplated. This means that a specific claim must
exist that is likely to lead to litigation. The
privilege is still applicable after a legal case has
ended or even if it was never begun, as long as it
was reasonably contemplated.
Segregable factual materials need not be deleted from
attorney work-product documents since the facts are
generally intertwined with an attorney's evaluation
of the case. The privilege, however, does not extend
to purely factual documents, such as witness statements
or objective data, unless the documents reflect the
results of an attorney's evaluation, or reveal
his/her strategy or thought process.
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0 The Attorney-Client Privilege. This privilege applies
to confidential communications between attorney and
client. An attorney-client relationship is necessary
to invoke this privilege. Such a relationship exists
for communications between an Agency attorney and
an Agency employee. The Agency must show that it
took affirmative steps to protect the confidentiality
of the information. The privilege still applies
when this information is disseminated within the
Agency to persons involved with the matter in question.
However, unrestricted distribution within the Agency
would preclude the Agency from claiming the privilege.
° The Government Commercial Information Privilege. A
privilege is available to the government for informa-
tion it generates in the process leading up to the
award of a contract. This privilege incorporates
the language of Federal Rule of Civil Procedure
26(c)(7), which provides that "for good cause
shown...a trade secret or... confidential research,
development or commercial information" may be protected
in discovery in civil litigation. This privilege
expires once the contract is awarded or upon withdrawal
of the contractual offer. An example of this privilege
is cost estimates prepared by the government and
used to evaluate the construction proposals* of
private contractors.
o The Expert Witness Privilege. Another privilege
that is commonly invoked allows the withholding of
records generated by an expert witness.
o The Confidential Witness Statement Privilege.
Statements obtained from confidential witnesses, such
as statements given to the Inspector General by
witnesses who have been granted confidentiality, may
be withheld.
f. Exemption 6 - Personal Privacy. This exemption permits
the withholding of all information about individuals in personnel,
medical, and similar files, the disclosure of which would con-
stitute a clearly unwarranted invasion of personal privacy.
1) The term "similar files" (above) covers all informa-
tion on a particular individual that has privacy
implications similar to the information in personnel
or medical files.
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2) Records withheld under this exemption must pertain
to an individual in order to constitute an invasion
of "personal privacy"; records pertaining to a
business may not be withheld under this exemption.
The only exception to this principle involves cases
in which a business is a closely held corporation
(e.g., where the individual and the corporation are
identical).
3) The invasion of privacy must be "clearly unwarranted."
In determining if the invasion is clearly unwarranted,
the public's interest in disclosure must be.balanced
against the interests of an individual whose privacy
would be invaded by disclosure of the record.
g. Exemption 7 - Investigatory Records Compiled For Law
Enforcement Purposes. Exemption 7 provides that investigatory
records need not be disclosed in six specific instances (discussed
below). For records to fall within the Exemption 7 requirement
of investigatory records, there must be an investigation for a
specific suspected violation of law, not merely a routine
monitoring of activities. It must be focused specifically
upon a party or situation, for which a particular party has
not yet been identified, even though the* investigation may be
dormant.
Even though a document falls under Exemption 7, the Agency,
in its discretion, encourages release of the document unless
release would significantly harm the Agency.
1) Exemption 7(A); Interference with Enforcement
Proceedings. Investigatory records may be withheld
where disclosure will "interfere with enforcement
proceedings." Harm to the government's case in
court by premature release of evidence or information,
or damage to the Agency's ability to conduct an
investigation, constitutes interference under this
exemption. Damage to a related or similar enforcement
proceeding also constitutes interference. Exemption
7(A) can be invoked only as long as the enforcement
proceeding is in progress, pending or anticipated.
The government must be able to articulate the kind
of harm that would affect its case. Some types of
harm that fall under this exemption include premature
disclosure of the government's evidence and strategy
or the focus of its investigation, and the possibility
that potential witnesses and sources of information
would be inhibited.
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The applicability of this exemption need not be
demonstrated document by document since some generic
categorization of documents is permitted. For
instance, acceptable generic categories include
"witness statements prior to a hearing," "affidavits
and interviews of charging parties," and "correspond-
ence with attorneys and charging parties."
2) Exemption 7(B). Adverse Effect on Right to Fair
Trial. Investigatory records may also be withheld if
their disclosure will deprive a person of the right
to a fair trial or an impartial adjudication. This
exemption applies mostly in the criminal trials of
individuals.
3) Exemption 7(C). Unwarranted Invasion of Personal
Privacy. Disclosure of investigatory records
is also prohibited if it would constitute an
unwarranted invasion of personal privacy. The
public interest in the disclosure of a document
must be balanced against the invasion of privacy
that would result from disclosure. Exemption 7(C)
is interpreted as providing broader protection than
Exemption 6. Exemption 7(C) is not limited to
matters contained in an individual personnel, medical
or similar file, but to any personal information in
an investigatory record.
In balancing public versus private interests, some
courts have recognized a public interest in withholding
information the disclosure of which could impair an
Agency interest. Courts have also recognized the
danger of damage to an individual's reputation
simply because his or her name is mentioned in an
investigatory record even though he or she is not
charged. Such names may be released only where
exceptional interests weigh in favor of disclosure.
Exemption 7(C) is also used to protect the identities
of FBI agents and other law enforcement officials
who are personally involved in investigations, and
to withhold the names of informers who may not
technically qualify as confidential sources under
Exemption 7(D).
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4) Exemption 7(D). Disclose Identity of Confidential
Source. The first prong of Exemption 7(D) applies to
civil law enforcement investigations and permits
investigatory records to be withheld if disclosure
would reveal the identity of a confidential source.
This prong of the exemption protects the identity of
the source but not the information that may be furnished.
Information furnished by such a confidential source
may be withheld, however, if it would disclose the
identity of the source.
The second prong of Exemption 7(D) applies to a criminal
law enforcement investigation and allows the-withholding
not only of the identity of the confidential source,
but also of any other information provided by the source.
There is no balancing test used in applying this
exemption. To receive protection under this section,
the Agency must have given sources an express promise
of confidentiality, or there must be circumstances
from which assurances of confidentiality may be inferred.
5) Exemption 7(E) . Reveal Special Technique/Procedure.
This exemption permits the withholding of investigatory
records that reveal or reflect a special investigative
technique or procedure that is unique and generally
unknown to the public. Commonly known techniques may
also be protected if they are combined in a unique
fashion meriting protection to ensure future
effectiveness.
6) Exemption 7(F) . Endanger Life or Safety of Personnel.
Under this exemption any information may be withheld
that, if disclosed, would endanger the life or physical
safety of law enforcement personnel. No balancing test
is required.
h. Exemption 8 - Records of Financial Institutions. This
exemption applies to reports prepared for agencies responsible
for the regulation or supervision of financial institutions
(such as the Federal Reserve Board). It generally does not
apply to records in EPA's possession.
V
i. Exemption 9 - Geological and Geophysical Information and
Data Concerning Wells. This exemption pertains to "geological
and geophysical information and data, including maps, concerning
/fells." EPA rarely uses this exemption.
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CHAPTER 8; BUSINESS CONFIDENTIALITY
1. AUTHORITY
EPA's basic rules concerning Confidential Business Information
(CBI) are set out in sections 2.201 through 2.215 of EPA's
regulations in 40 CFR Part 2, Subpart B. Special provisions on
handling of business information submitted under specific EPA
statutes are found in sections 2.301 through 2.311 of the
regulations. These special rules incorporate, modify, or replace
the basic rules for information gathered under these statutes.
When basic rules and the special rules conflict, the .provisions
of the special rules should be followed.
2. INTRODUCTION
In the course of its work, EPA receives information that may
be entitled to protection from disclosure for reasons of business
confidentiality. In defining what constitutes "confidential
business information," EPA adopts the concept of business con-
fidentiality encompassed by Exemption 4 of FOIA, (5 U.S.C.
552(b)(4)), which allows an agency to withhold from disclosure
"trade secrets and commercial or financial information obtained
from a person and privileged or confidential." The term CBI also
includes business information that may not be disclosed under
the Trade Secrets Act, 18 U.S.C. 1905, or under any of the
statutes administered by EPA.
Under Exemption 4, commercial or financial information is
determined to be confidential if its disclosure would be likely
to: (1) impair the government's ability to obtain necessary
information in the future or (2) cause substantial competitive
harm to the person/business from whom the information was obtained.
The second test, that of substantial competitive harm, is the one
most commonly applied to information in EPA's possession because
many of our statutes give us the authority to mandate businesses
to give us information.
EPA operates under detailed regulations that spell out precise
steps to be taken to determine the confidentiality of information
claimed as CBI. While this manual provides guidance on the
handling of CBI, it is not a substitute for EPA's regulations,
which should be consulted to assure compliance with all required
procedures.
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3. ACTION BY EPA OFFICE TO DETERMINE CONFIDENTIALITY
a. Initial Determination. An EPA office that possesses
information obtained from a business may need to make an initial
determination of whether the information is entitled to confiden-
tial treatment. This need will arise if a FOIA request for the
information is received, or anticipated, or if for any'other
reason the office desires to ascertain the confidential status
of the information. Absent a FOIA request, there is normally
no requirement that an office initiate the process of making an
initial determination of confidentiality.
Under EPA's regulations, business information may not be
disclosed unless EPA has ascertained that there is no claim of
confidentiality applicable to the information (or unless a final
determination of nonconfidentiality has already been made and the
appropriate period allowed for comment by the business has ended).
If an examination of business information reveals that, even
though no applicable confidentiality claim exists, the affected
business might be expected to assert a claim if it knew EPA
proposed to disclose the information, the EPA office must contact
a responsible official of the business to determine whether the
business asserts a claim. Because the submitter bears the
burden of substantiating confidentiality, offices should
emphasize this burden to discourage unwarranted assertions.
If a FOIA request is pending at the time, the action office must
make this inquiry by telephone or equally prompt means, and must
inform the responsible official from the business that any
claim the business wishes to assert must be brought to the action
office's attention by the third working day after such inquiry.
The office should keep a record of the result of this inquiry.
The action office need not inquire whether a confidentiality
claim exists if (1) the business failed to assert a claim at the
time the information was provided to EPA, as long as the business
was notified at that time that failure to assert a claim would
mean that EPA could make the information available to the public
without notifying the business; (2) the business failed to assert
a claim after receiving the same notice at some other time; or
(3) the business has otherwise waived or withdrawn a claim covering
the information.
Except where the information is clearly not entitled to confi-
dential treatment (see section 3.b, below), the action office should
furnish each business that has asserted a claim an opportunity
to comment on (i.e., substantiate) its claim, if such opportunity
has not previously been furnished (see sample letter 0, Appendix I).
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If a FOIA request is pending, the action office should also
furnish the requester an initial determination that the records
requested may be entitled to withholding under Exemption 4,
and notify the requester that a final confidentiality determination
will be issued by EPA's legal office (see sample letter P, Appendix
I). The FOIA request is therefore initially denied (see section
5 of Chapter 6).
b. Final Determination (Py Action Office). If the EPA
action office determines that business information claimed to be
confidential "clearly is not entitled to confidential treatment,"
it may issue a final confidentiality determination and notify
the business of its decision by means of the notice procedures
outlined in section 4.b, below. (Note that the notice period
must expire before the information may be released.)
Such determinations of clear lack of entitlement to confidential
treatment may only be made by the action office in such clear-cut
cases as, for example, where the office knows that the claimed
information is publicly available elsewhere. In such cases, no
opportunity to comment need be furnished the business. A copy
of any such notice should be forwarded promptly to the appropriate
EPA legal office.
c. Notice of Opportunity to Comment. When the action office
determines that business information in its possession may be
entitled to confidential treatment (see section 3.a, above), the
office should provide each affected business with notice that
EPA is making a final confidentiality determination and provide
them with an opportunity to comment (if such notice and opportunity
have not previously been provided). This manual outlines what
is required in connection with such notice, but the action office
should consult 40 CFR §2.204(e) for specific instructions.
The action office must send the notice by certified mail (return
receipt requested), by personal delivery, or by other means
allowing verification of the fact and date of receipt. At or
about the time the written notice is sent, the action office
should also call a responsible official of the business to let
that person know that the business should expect to receive the
notice shortly and to request that the office be contacted if
the notice does not arrive within a few days.
The written notice should ask the business to comment on (i.e.,
substantiate) specific points regarding its confidentiality
claim. Those points are spelled out in 40 CFR §2.204(e)(4).
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If a FOIA request for the information prompted the need to
determine confidentiality, the period for comments should be
fifteen working days from the time the business received the
written notice. In other cases, the action office should establish
a reasonable period for comment of not less than fifteen working
days from the time of receipt of the notice.
The comment period may be extended at the request of the business
(before the comment due date) with approval by the appropriate
EPA legal office. However, if a FOIA request for the information
is pending, the EPA legal office will not approve an extension,
except in extraordinary circumstances, without the consent of
all FOIA requesters.
The written notice should state that the business1s comments
will be treated as entitled to confidential treatment if so
marked unless already possessed by the Agency in nonconfidential
form (see 40 CFR §2.205(c)). It should also state that EPA
will consider a business1s failure to furnish timely comments as
a waiver of the business's confidentiality claim and that, in
such event, EPA may release the information in question with no
further notice to the business.
If a business's comments have not been received by the specified
EPA action office by the due date (including any extension), the
office should promptly contact the business to inquire whether
it was granted an extension of time or whether its comments were
lost in transmission. If the comments were lost, duplicate
comments should be forwarded immediately by the business (see 40
CFR §2.205(b)(4)).
When comments are received by the action office, it should
forward all relevant materials to the appropriate EPA legal
office so that a final determination of confidentiality may be made.
4. FINAL CONFIDENTIALITY DETERMINATION BY EPA LEGAL OFFICE
Final confidentiality determinations are made by the Office of
General Counsel or the Office of Regional Counsel, as appropriate,
in accordance with the criteria set out in 40 CFR §2.208. Unlike
an initial determination by an EPA action office that business
information may be entitled to confidential treatment under
Exemption 4 of FOIA, a final confidentiality determination is a
basis for denying information under that exemption.
The EPA legal office makes its final determination in*
accordance with 40 CFR §2.208, under which commercial or
financial information has been held to be confidential if its
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disclosure would be likely to either (1) impair the government's
ability to obtain necessary information in the future, or (2)
cause substantial competitive harm to the person from whom the
information was obtained. EPA's inquiry usually focuses on the
second prong of the test, that of substantial competitive harm,
since the first prong applies only to information voluntarily
submitted to the Agency (i.e., information which EPA can't
require).
a. Final Determination by EPA Legal Office of Entitlement
to Confidential Treatment. If the EPA legal office makes a
determination that business information is entitled to confidential
treatment, it informs the business of its determination, and EPA
must maintain the information as confidential. If a request for
the information under FOIA is pending at the time, the EPA legal
office issues the requester a final determination denying the
request.
b. Final Determination by EPA Legal Office of Nonentitlement
to Confidential Treatment. If the EPA legal office determines
that businessinformation is not entitled to confidential treatment,
it issues a notice to each affected business of the denial of
the claim. The notice must state the basis for the determination,
that it is a final Agency action, and that it is subject to
judicial review (see 40 CFR §2.205(f)(2)). The notice must also
state that EPA will not disclose the information until the
tenth working day after the business's receipt of the notice of
denial of its claim. This waiting period is modified to thirty
calendar days in the case of information obtained under the
Toxic Substances Control Act or the Federal Insecticide, Fungicide,
and Rodenticide Act (see special rule provisions at 40 CFR
§2.306(e) and 2.307(e)).
5. PREVIOUS CONFIDENTIALITY OR CLASS DETERMINATION
In some cases, information claimed as confidential business
information may be the subject of a previous final confidentiality
determination or "class" determination. A class determination
is a final confidentiality determination issued by the Office of
General Counsel covering certain identifiable items of information
and which may be applied thereafter to information falling within
the class.
An EPA action office can check with the appropriate EPA legal
office to find out whether particular claimed information is
the subject of a previous final determination or class determination,
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a. Previous Final Determination. If a previous final
determination exists on particular information, then that
determination controls and no further inquiry of the business
should be made. If the determination held that the information
was not entitled to confidential treatment, and the appropriate
notice was provided the business, the information may be disclosed
without further notice. A previous final confidentiality
determination may be modified by the EPA legal office under
40 CFR §2.205(h).
b. Class Determination. If the information is covered by a
class determination which finds that category of information
confidential or not confidential, the business need not.be
furnished the usual opportunity to comment on its claim. Instead
the EPA office should send a copy of the class determination to
the business,, provide the appropriate notice, and allow the
applicable notice period to run before any information determined
not to be confidential is disclosed.
6. DISCLOSURE WITH CONSENT OF AFFECTED BUSINESS
Before initiating a confidentiality determination, the EPA
office should consider whether it is possible to obtain the
affected business's waiver, modification, or withdrawal of its
claim of confidentiality in such a way that will allow disclosure
of the needed or requested information without the necessity of
a final determination. For example, the action office may be'
able to obtain the affected business's consent to disclose the
useful portion of the information while EPA continues to protect
from disclosure information that is claimed as confidential but
the disclosure of which is not presently needed.
7. DISCLOSURE OF CBI OTHER THAN UNDER FOIA
Business information that is not available to the public because
it has been claimed or determined to be CBI may nonetheless be
disclosed to certain persons in special circumstances, as set
out in 40 CFR §2.209 and the modifications in the special rules.
For example, the rules state the circumstances under which CBI
may be disclosed to other Federal agencies, to authorized
representatives, and to the Congress. These provisions of the
regulations should be consulted to determine when such disclosures
are permitted and the procedures that must be followed. Note
especially that certain conditions must be met before CBI may be
disclosed to Agency contractors or subcontractors (and that in
some cases such disclosure is not permitted). The special rule
provisions for each statute should be consulted.
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CHAPTER 9: DISCRETIONARY RELEASE
1. WHEN TO USE DISCRETIONARY RELEASE
a. Policy. As a matter of policy, EPA encourages release
of records that are exempt under 5 U.S.C. 552(b)(2), (5) or (7)
of FOIA (see Chapter 7, sections b, e, and g) unless an important
Agency purpose is served by withholding the documents. Before
granting a discretionary release, you should decide whether
release would cause significant harm to the Agency.
NOTE: EPA may not exercise its discretion to release information
which is exempt from disclosure under the FOIA if the. information
is contained in a Privacy Act system of records. In general,
the Privacy Act prohibits the disclosure of records in a system
of records to any person other than the individual to whom the
records pertain.
b. Procedures. In making any discretionary release of
documents, the standard release procedures outlined in Chapter
5 should be followed carefully.
2. WHEN'NOT TO USE DISCRETIONARY RELEASE
a. Pol icy. In responding to a FOIA request, EPA will under
no circumstances release records exempted under 5 U.S.C. 552(b)(l),
(3) , (4), (6), (8) or (9), unless
o it is on the order of a Federal court, or
o exceptional circumstances exist, appropriate pre-
cautions are taken and the approval of the Office
of General Counsel or Regional Counsel is obtained.
(Such exceptional circumstances have rarely, if ever,
occurred at EPA.)
b. Court Order To Withhold. The Agency has no discretion to
release a record if a court has prohibited the Agency from releasing
the record to the public.
3. DISCRETIONARY RELEASE ON APPEAL
Discretionary release on appeals is discussed in Chapter 10,
section 4.c.
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CHAPTER 10; APPEALS
1. RIGHT TO APPEAL
Any person whose request for records under FOIA has been
denied in whole or in part by an initial determination may
appeal that denial by addressing a written appeal to the EPA
Freedom of Information Ottice, A-101, 401 M Street, S.W.,
Washington, D.C., 20460.
2. TIME FRAME FOR RECEIVING APPEALS
a. Timely Appeals. To be timely, an appeal must be mailed
to EPA within 30 calendar days of the receipt of an initial
denial by a requester,
b. Untimely Appeals. Appeals mailed to EPA more than 30
calendar days after the receipt of an initial denial by the
requester may be treated either as a timely appeal or as an
entirely new FOIA request at the discretion of the Agency FOI
Office.
3. TIME FRAME FOR RESPONDING TO APPEALS
a. 20-Day Time Limit. The Office of General Counsel has 20
working days from the date the Agency FOI Office receives an
appeal in which to issue a written determination stating which
of the requested records under appeal shall be disclosed and
which shall not be disclosed.
b. Extensions. This time limit may be extended up to an
additional 10 working days, unless the total of all such exten-
sions including any used during the initial determination period
would exceed 10 working days.
c. Backlog. Due to the Agency's backlog of FOIA appeals,
the Office of General Counsel will apprise the appellant (in
writing) of the backlog and EPA's policy of processing appeals
on a first-come, first-served basis. The backlog letter does
not predict an appeal decision date, but indicates that the
Agency will issue its determination as quickly as possible.
4. APPEAL PROCEDURE
a. Office of General Counsel. Upon receipt of an appeal,
the Agency FOI Office sends the appeal to the Office of General
Counsel, along with any correspondence the FOI Office has regarding
the case.
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The Office of General Counsel then contacts the action office,
asks it to send copies of any additional information needed to
make a legal determination on the appeal (e.g., a copy of the
initial request, the Agency's response, any additional correspond-
ence regarding the request and a copy of the withheld documents),
ascertains the names of the individuals in the action office
and legal office most familiar with the records under appeal,
and consults with these individuals concerning their rationale
for withholding the documents.
After reviewing this information, the Office of General
Counsel makes its appeal determination. In appropriate cases,
however, the Office of General Counsel may consult with the
appellant in an attempt to find a mutually acceptable resolution
short of a formal written legal determination of the appeal.
b. Determinations. The Office of General Counsel makes one
of the following legal determinations in connection with every
appeal for an existing, located record:
o the record must be disclosed,
o the record must not be disclosed because a statute
or provision of the regulations so requires, or
o the record is exempt from mandatory disclosure, but
may legally be disclosed at the Agency's discretion.
c. Discretionary Release. Whenever the Office of General
Counsel determines that a record is exempt by virtue of 5 U.S.C.
552(b)(2), (5) or (7) but may legally be released to the public
at EPA's discretion, the matter is referred to the Assistant
Administrator for External Affairs except in the case of appeals
of initial denials originating in the Office of the Inspector
General and in the case of records contained in a Privacy Act
system of records.
o If the Assistant Administrator for External Affairs
determines that the public interest would not be
served by disclosure, the Office of General Counsel
issues a determination denying the appeal.
o If the Assistant Administrator for External Affairs
determines that the public interest would be served
by disclosure, the record is disclosed.
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Prior to issuing a discretionary release in the public in-
terest, the Assistant Administrator for External Affairs consults
with the appropriate action office. In the event that there
is disagreement between the Office of External Affairs and the
action office, the Administrator determines whether the public
interest would be served by disclosure. The Office of General
Counsel then issues a final determination in accordance with the
Administrator's decision.
5. ISSUING APPEAL DETERMINATIONS
a. Release on Appeal. If the Office of General Counsel's
determination holds that a record is to be disclosed, the
record will be enclosed with OGC's determination letter (and
Bill for Collection, if fees are assessed) to the appellant. A
copy of the determination is forwarded to the action office and
FOI Coordinator or Regional FOI Officer and two copies are sent
to the Agency FOI Officer. (Copies of the Bill for Collection
should be sent to the Agency FOI Office and the HQ Financial
Management Office.)
b. Appeal Denials. If the Office of General Counsel's
determination is to deny an appeal in whole or in part, OGC
sends the appellant a copy of its determination, in which the
rationale for withholding the record (or portions of the record)
is explained. It also forwards a copy of the determination to
the appropriate action office and FOI Program Coordinator or
Regional FOI Officer and sends two copies to the Agency
FOI Officer.
6. JUDICIAL REVIEW
a. Judicial Review. Whenever OGC issues a determination
denying an appeal, it states that the appellant has the right to
seek judicial review of the final Agency decision by complaint
filed in the United States District Court for the district in
which the complainant resides or has his/her principal place of
business, for the district in which the records are located or
for the District of Columbia.
b. Action Office's Role. In the event an appellant files
suit against the Agency under FOIA, the Department of Justice
represents the Agency with assistance from EPA attorneys. The
action office responsible for responding to the initial request
is actively involved in the preparation of submissions to the
court such as affidavits and indexes.
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CHAPTER 11: ANNUAL REPORT AND RECORDKEEPING
1. ANNUAL REPORT TO CONGRESS
a. Agency FOI Office. Each calendar year, the Agency's FOI
Officer prepares a report to the Congress describing FOIA requests
received and handled by EPA. The Agency's FOI Officer prepares
this report on or before March 1 for the preceding calendar
year. The report is addressed to the Speaker of the House of
Representatives and the President of the Senate for referral
to the appropriate committees of the Congress. The Agency FOI
Officer compiles the report from information submitted by
Headquarters and Regional FOI Offices.
b. Regional FOI Offices. Each calendar year, every Regional
FOI Officer prepares a Regional FOI report on requests received
and handled in the Regional Office. The Regional FOI Officer
prepares this report on or before February 1 for the preceding
calendar year. The February 1 submittal date is important to
ensure inclusion of Regional information in the report to Congress
prepared by the Agency's FOI Officer. The Region is asked to
submit the information in the same format outlined in section l.c
below.
c. Content of the Annual Report. The Agency's annual report
to Congress covers:
1) requests
- the number of FOIA requests received;
2) denials
- the number of determinations EPA made to deny
records in whole or in part and the reason for
each denial;
- the name(s) and title(s)/position(s) of each
person(s) responsible for the initial denial of
records requested and the number of times the
official denied release of records;
3) appeals
- the number of appeals filed and the result of each
appeal, including the number of determinations to
either reverse the denial and release the records
in whole or in part, or to support the denial of
records in whole or in part, and the reason for each
denial;
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the name(s) and title(s)/position(s) of each
person(s) responsible for the denial of records,
in whole or in part,"on appeal and the number of
times each official made a final determination on
appeal to deny records;
4) confidential business information determinations
the number of final business confidentiality
determinations made by EPA, the results of each
determination, including the number of determinations
to either reverse the denial and release the records
in whole or in part or to support the denial of
records in whole or in part;
the name(s) and title(s)/position(s) of each
person(s) responsible for final business confi-
dentiality determinations that resulted in a
denial of information and the number of instances
of participation for each;
5) disciplinary actions
- the results of any disciplinary proceedings or
actions taken against employees or FOI Officers who
were primarily responsible for improperly withholding
records or an explanation of why disciplinary actions
were not taken;
6) Agency rules or regulations
- a copy of Agency rules or regulations regarding the
Freedom of Information Act;
7) fees/fee schedule
- a copy of the fee schedule and the total amount of
fees collected for making records available;
8) administrative workload/costs
- the administrative costs to EPA of complying with
the provisions of the Act in terms of workyears of
effort expended.
9) internal memoranda
- a copy of any unpublished internal memoranda or
instructions that outline procedures for Agency
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personnel to follow in administering or applying
FOIA. Also included should be a statement indicating
whether the memoranda or instructions are publicly
available and, if they are not available, the legal
basis for not disclosing such documents.
2. EVALUATIONS
Use of Annual Report. The Agency's FOI Officer will
analyze information gathered for the annual report to Congress
from a management standpoint to assure that EPA's actions are
in keeping with the intent of FOIA. He/she may, from time to
time, conduct evaluations of specific EPA responses to FOIA
requests. Information on administrative workload and costs is
used to document the need for future positions in EPA and to
document the effects of the Act on Executive Agencies' workload.
3. RECORDS RETENTION SCHEDULES
Freedom of Information files are maintained by calendar
year and should be retained in accordance with EPA's Records
Retention Schedules. The Schedules are included in Appendix V and
are also contained in the Agency's Records Management Manual.
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APPENDICES
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APPENDIX I
SAMPLE LETTERS
LETTERS PAGE
A. Response to Request for Future
Records 1-1
B. Clarifying a Vague or Overly
Broad Request 1-2
C. Notification that Records Can Not
be Obtained" Promptly 1-3
D. Notification that Records are
Available for Sale Elsewhere 1-4
E. Notification that Records Do
Not Exist 1-5
F. Notification that Records are
Possessed by another Federal
Agency or Delegated State ..,..", 16
G. Request for Prepayment 1-7
H. Denial of Public Interest Fee
Waiver Request 1-8
I. Request for Payment Owed on
Earlier Request 1-9
J. Extension of 10-Day Time Limit 1-10
K. Release Letter with Records 1-11
L. Release Letter without Records 1-12
M. Denial Letter 1-13
N. Partial Denial Letter 1-14
O. Request for Substantiation from
an Affected Business 1-15
P. Initial Denial Based on Claim
of Business Confidentiality 1-17
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SAMPLE LETTER A
RESPONSE TO REQUEST FOR FUTURE RECORDS
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester);
This is in response to your Freedom of Information Act
request of (date of request), regarding (nature of request).
The Freedom of Information Act does not require EPA to
place a requester's name on a distribution list for automatic
receipt of certain kinds of records as they become available.
The Act only establishes requirements for disclosure of existing
records.
However, you may submit future requests under the Freedom
of Information Act, if you desire to ascertain whether such
records have been created and are available. Any such letter(s)
should reference the period of time for which records are being
requested.
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
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SAMPLE LETTER B
CLARIFYING A VAGUE OR OVERLY BROAD REQUEST
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester);
This letter concerns your.Freedom of Information Act request
of (date of request), regarding (nature of request).
In reviewing your request, we find your description of the
records is not sufficient to allow us to identify and locate the
records you seek. We have tried unsuccessfully to reach you by
telephone to clarify your request. We cannot process your
request without further information. Please contact (name of
employee) of my office at (telephone) at your earliest convenience
If we have not heard from you by (date*), we will assume
that you are no longer interested in pursuing your request, and
your file will be closed.
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
*Normally, 30 days should be adequate.
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SAMPLE LETTER C
NOTIFYING REQUESTER THAT RECORDS CANNOT BE OBTAINED PROMPTLY
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester);
This letter concerns your Freedom of Information Act request
of (date of request), regarding (nature of request).
I wish to advise you that we have not been able to
obtain the record(s) you requested due to (reason for delay).
We are making every effort to obtain the'record(s) and hope
to complete our response to you by (projected date of release).
I regret the inconvenience this may have caused. Please
contact (name of employee) of this office at (telephone) if
you have any questions.
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
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SAMPLE LETTER D
NOTIFYING REQUESTER THAT RECORDS ARE AVAILABLE FOR SALE
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (_naroe of requester);
This is in response to your Freedom of Information Act
request of (date of request), regarding (nature of request).
The information you requested may be purchased from (e.g. ,
the National Technical Information Service (NTIS)» 5285 Port
Royal Road, Springfield, VA 22161. Their telephone number
is 703-487-4600. (Indicate the cost of the document(s), if
knowni.))
Any further questions regarding this information
should be directed to (NTIS).
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
NOTE: Many services can provide documents only if an identification
or order number is known. Provide the requester with the document
order number and price if available.
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SAMPLE LETTER E
NOTIFICATION THAT RECORDS DO NOT EXIST
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester)t
This, is in response to your Freedom of Information Act
request of (date of request).
I wish to advise you that the Agency has no records
responsive to your request. I regret that we are unable to
assist you in this matter.
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
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SAMPLE LETTER F
NOTIFICATION THAT RECORDS ARE POSSESSED ONLY BY ANOTHER
FEDERAL AGENCY OR DELEGATED STATE
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester);
This is in response to your Freedom of Information Request
of jdate of request), regarding (nature of request).
This is to advise you that the records you requested are
not in EPA's possession but may be available from (name and
address of other Agency or State Program Office). You may wish
to contact (name of other Agency or State Program) directly.
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
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SAMPLE LETTER G
REQUEST FOR PREPAYMENT
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester);
This letter concerns your Freedom of Information Act request
of (date of request).
Pursuant to Title 40 CFR, Part 2, section 2.120(c),
"Prepayment or Assurance of Payment," it will be necessary
for you to prepay the costs associated with your request.
Upon receipt of your payment, we will complete the processing
of your request and forward the requested records to you.
Enclosed is a Bill for Collection requesting prepayment.
This represents our best estimate of cost at this time. Please
return the top portion of the form with your check or money
order payable to the U.S. Environmental Protection Agency and
forward your payment to the address listed on the form.
Your check should refer to the Freedom of Information Act
Request Number (listed above).
Sincerely,
Signature and Title
Enclosure
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
NOTE: This letter should be used where the request involves
a large number of records, fees are substantial, and prepayment
is deemed necessary before processing the request can be completed.
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SAMPLE LETTER H
LANGUAGE FOR FEE WAIVER/REDUCTION DENIAL
The following provides some guidance concern-
ing what wording should be used in release, partial
release and discretionary release letters that also
acknowledge a fee waiver/reduction denial. Note
that the language presupposes that the action office
has already talked with the requester, informed him/
her of the denial and made some arrangements for
payment.
As I mentioned in our telephone conversation of (date),
your application for a fee waiver (or reduction) has been denied.
Your request does not qualify for a fee waiver because (explain
rationale for denial, e.g., public interest in the records is
not sufficient, records are already available to the public, etc.)
It is my understanding that you will remit payment for the
records upon their receipt (or you will remit payment for the
advance, before their release by EPA).
records in
^__ If you desire
to appeal this fee waiver (or reduction) denial, you should
submit a written appeal to the. Agency's Freedom of Information
Officer, A-101, U. S. Environmental Protection Agency, 401 M Street,
SW, Washington, DC 20460. Any appeal should refer to the Request
Identification Number listed above, the date of this determination,
and my name, title and address (or the name, title and address of
the person directing issuance of the denial).
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SAMPLE LETTER I
REQUEST FOR PAYMENT OWED ON EARLIER REQUEST
BEFORE NEW REQUEST IS PROCESSED
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester):
_(RIN- number of
request on which
payment is still due)
We have received your letter of (date) requesting information
from the Environmental Protection Agency (EPA) under the Freedom
of Information Act. A review of our records indicates that you
made another request that was assigned Request Identification
Number RIN (number of request on which payment is still due).
You were billed (amount) by EPA for costs related to processing
that request. Attached is a copy of the Bill for Collection
sent to yo'u at that time requesting payment. There is no
indication in our records that you have paid the amount due.
Pursuant to 40 CFR 2.120(e)f we will not process your
current request until you pay the amount due on your earlier
request or furnish proof (in the form of a receipt or cancelled
check) that the bill was paid.
Please make your check or money order payable to the U.S.
Environmental Protection Agency, refer to the RIN number
indicated above, and attach the top portion of the enclosed
Bill for Collection.
Sincerely,
Signature and Title
Enclosure
bcc: Financial Management Division
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SAMPLE LETTER J
EXTENSION OF TEN-DAY TIME LIMIT
(stamp date)
Pe: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester);
This is in response to your Freedom of Information Act
request of (date of request). An extension of the time
required to comply with your request is necessary.
The reason(s) for the extension is (are):
The need to search for and collect the requested
records from offices that are physically distant
from this office. (40 CFR, 2.112(e)(D)
The need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct
records involved in your request. (40 CFP, 2.112(e)(2))
_L The need for consultation, which shall be conducted
with all practicable speed, with another agency or
EPA office having a substantial subject-matter
interest in your request. (40 CFR, 2.112(e)(3))
An initial determination is expected by (date of expected
determination).
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
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SAMPLE LETTER K
RELEASE LETTER WITH RECORDS
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs. Ms. (name of requester);
This is in response to your Freedom of Information Act
request of (request date), regarding (nature of request).
I am enclosing a copy/copies of the records which are
responsive to your request. The cost of providing this information
is . An itemized invoice covering the charges for search
time and copying costs is enclosed. Please forward your check
or money order, made payable to the U.S. Environmental Protection
Agency, within 30 days of the date of this response. Your
check should refer to the RIN number above and should be
accompanied by the top portion of the enclosed Bill for
Collection. Your prompt payment of the amount indicated will
be appreciated.
Sincerely,
Signature and Title
Enclosures: (list describing documents and Bill for Collection.)
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
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SAMPLE LETTER L
RELEASE LETTER WITHOUT RECORDS
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your Freedom of Information Act
request of (request date), regarding (nature of request).
My office has determined that the record(s) you requested
can be released under the Freedom of Information Act. We are
currently copying the information you requested and will forward
it to you (along with an itemized invoice covering the charges
for search time and copy costs) by (estimated date of completion)
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
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SAMPLE LETTER M
DENIAL LETTER
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester);
This is in response to your Freedom of Information Act
request of (request date), concerning (nature of request).
We are unable to provide you with the requested records
because they are exempt from mandatory disclosure by virtue of
5 U.S.C. 552(b)(cite the exemption or exemptions). (An itemized
list or a description by categories of the records which are
being withheld along with the basis for withholding is provided
on the enclosure to this letter.) *
You may appeal this denial by addressing, within 30 days
of your receipt of this letter, your written appeal to the
Freedom of Information Officer (A-101) , United States Environ-
mental Protection Agency, 401 M Street, S.W., Washington,
D.C. 20460. Your appeal should include the RIN number listed
above, the date of this determination, and my name, title
and address (or the name, title and address of the person
directing issuance of the denial).
Please contact ( ) at ( ) , should you
have any questions concerning this matter.
Sincerely,
Signature and Title
(Division Director
Level or Above)
Enclosure
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
* An index of withheld documents or categories of documents
should be used only when the number of documents being withheld
is voluminous. In all other cases, identify the withheld docu-
ments in the denial letter itself.
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SAMPLE LETTER N
PARTIAL DENIAL LETTER
(stamp date)
"A
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your Freedom of Information Act
request regarding (nature of request).
Enclosed you will find copies of some of the documents
responsive to your request.
We are unable to provide you with the documents, or
portions of documents, which have been determined to be
exempt from mandatory disclosure by virtue of 5 U.S.C. 552(b)
(cite exemption or exemptions). (An itemized list or a
description by categories of the withheld material along with
the basis for withholding is provided on the enclosure to this
letter.)*
You may appeal this partial denial by submitting a written
appeal to the Freedom of Information Officer (A-101) , United
States Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, within 30 days of receipt of this partial
denial. Your appeal should refer to the RIN number listed
above, the date of this determination, and my name, title
and address (or the name, title and address of the person directing
issuance of the partial denial).
Please contact ( ) at ( ) , should you
have any questions concerning this matter.
Sincerely,
Signature and Title
(Division Director
Level or Above)
Enclosures
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
* NOTE: An index of the withheld records, or portions of
records, should be used only when the number of withholdings
is voluminous. In all other cases, identify the withheld
material in the partial denial letter itself.
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SAMPLE LETTER 0
REQUEST FOR SUBSTANTIATION FROM AN AFFECTED BUSINESS
(date stamp)
Certified Mail
Return Receipt Requested
(Addressee)
Re: (Reference the RIN and or the Information which is the
subject of the final confidentiality determination.)
Dear Mr./Mrs./Ms. (name of requester);
The Environmental Protection Agency (EPA) has received a
request under the Freedom of Information Act (FOIA) for certain
records pertaining to (description of the information which is
the subject of the final confidentiality determination). You
asserted a business confidentiality claim covering (all or
part) of this information. In accordance with EPA's Freedom
of Information Act regulations (40 C.F.R Part 2), the request
has been initially denied to afford you an opportunity to
substantiate your claim before a final determination is made.
This letter is to notify you that the EPA (appropriate
legal office) will be making a final confidentiality determina-
tion concerning this information. If you feel that some or all
of the above information is entitled to confidential treatment,
please specify which portions of the information you consider
confidential. Please be specific by page, paragraph and
sentence when identifying the information subject to your claim.
For each item or class of information that you identify as being
subject to your claim, please comment on the following issues:
1. The period of time for which confidential treatment
is desired, e.g. until a certain date or until the
occurrence of a certain event, etc.;
2. Measures you have taken to guard against undesired
disclosure of the information to others;
3. The extent to which the information has been disclosed to
others and the precautions taken in connection therewith;
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4. Whether there are pertinent confidentiality determinations
by EPA or other federal agencies. If so, enclose a copy
of any such determinations;
5. Whether you assert that disclosure of the information
would be likely to result in substantial harmful effects
to your competitive position. If so, explain the nature
of those harmful effects, why they should be viewed as
substantial and the causal relationship between disclosure
and such harmful effects (generally including the manner
in which a competitor would use the information);
6. Whether you assert that the information is "voluntarily
submitted" as defined at 40 C.F.R. 2.201(i). If so,
explain how disclosure would tend to lessen EPA's ability
to obtain similar information in the future.
7. Any other issue you deem relevant.
Please note that you bear the burden of substantiating your
confidentiality claim pursuant to 40 C.F.R. 2.208(e). Conclusory
allegations will be given little or no weight in the determination.
If relevant facts necessary to the substantiation are themselves
confidential, please identify them as such so EPA may maintain
their confidentiality pursuant to 40 C.F.R. 2.205(c). In the
absence of such identification, your comments will be available
to the public without further notice to you.
Your comments must be postmarked or hand delivered to this
office by the 15th working day after your receipt of this letter.
You may seek an extension of time to submit your comments,
but the request must be made to the (appropriate legal office)
before the end of the 15-day period. Except in extraordinary
circumstances, no extension will be made without the permission
of the requester. Failure to submit your comments within
that time will be regarded as a waiver of your confidentiality
claim, and EPA will be free to release the information.
Should you have any questions in this matter, please call
me at (telephone).
Sincerely,
Signature and Title
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SAMPLE LETTER P
INITIAL DENIAL BASED ON CLAIM OF BUSINESS CONFIDENTIALITY
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester);
This is in reply to your letter dated ( ) in which
you requested (describe the requested records). I have deter-
mmned that the records in question have been claimed confidential
and may contain trade secrets or commercial or financial infor-
mation which is exempt from disclosure under 5 U.S.C. 552(b)(4).
Pursuant to 40 C.F.P. 2.204(d)(l)f your request is being initially
denied because further inquiry by EPA is required before a final
determination can be made. We will consult with the third party(ies)
in connection with their business confidentiality claim(s) covering
these records and (the appropriate EPA legal office) will issue a
final confidentiality determination.
You may appeal this initial denial of your request by
writing to the Freedom of Information Officer, A-101, U.S. Environ-
mental Protection Agency, 401 M Street, S.W., Washington, D.C.
20460. Any appeal must be made within 30 days after your receipt
of this initial denial. A final confidentiality determination
will be made by the (appropriate EPA legal office) whether or
not you file an appeal, and you will be notified of the final
determination.
You should refer to RIN in any further
correspondence concerning this matter. Please contact ( )
at ( ) if you have any questions.
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
1-17
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APPENDIX II
SAMPLE FORMS
FOI Request Log (EPA Form 1550-12) II - 1
Mail Control Schedule (EPA Form 5180-1) II - 2
Bill for Collection Form (EPA Form 2505-4) II - 3
Acknowledgement (EPA Form 1550-2) II - 4
Acknowledgement (EPA Form 1550-3) II - 5
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Freedom of Information Act Manual
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FROM
SUBJECT AND DATE
REFERRED (1)
DATE
WZPLY SENT TO
(2)
O)
ftK MARKS
CONTROL NO.
DATE REC'D
DUE DATE
14)
DATE RELEASED
ACKNOWLEDGED - DATE
D
NO ANSWER NEEDED
Q (Explain in remark*)
EPA Form 5180-1 (6-72)
REPLACES FWPCA FORM 72 AND
HEW-73 WHICH MAY NOT BE USED.
* S»0! I083-4ie-«20
(Remove this copy only, do not separate remainder.) MAIL CONTROL SCHEDULE
U.S. GOVERNMENT PRINTING OFPICE-1984-U57-568/28C
II-2
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NOTE:
1550
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This statement will appear on a separate page as an attachment to
the bill, unless the requester has sent in nrepayment for a request
or the action office is requesting advance payment.
The Agency's New Fee Schedule for Search Time
Personnel GS-8 and below
Personnel GS-9 and above
Computer Programing
$3.50
$7.00)
$8.50
Per half-hour or any
portion thereof
"To avoid additional charges, payment must be received within 30 days
of the bill date. If not received, interest will accrue fron the
bill date at the rate of * % per annum, through the date of payment.
A late payment handling charge of $20.00 will be imposed after 30 days
with an additional charge of $10.00 for each subsequent 30 day period.
A 6% per <\nnum penalty will be applied on any principal amount not
paid within 90 days of the due date."
* The interest rate, set by Treasury, changes quarterly. As of 1/86
the rate is set at 8%. To determine the new quarterly rate, call
your FOI Officer or Coordinator.
ILL FOR COLLECTION
.UREAU/OFF-CEFORREM-TTANCEPAYAtLE U EnvirOnmental PrOtCCtiOn AgCHCy
Washington Headquarters
ADDRESS FOR MAILING PAYMENT p^Q BOX 360277M
Pittsburgh. PA 15251
BILL NO
(A-10DRIN-1985-85
DATE
March 29, 1985
AMOUNT OF PAYMENT
$
PAYER
Mr. Thomas W. Smith
McKenna, Wilkinson & Kittner
1575 Eye Street, N.W.
Washington, D.C. 20005
DETACH AND RETURN
THIS PART OF IILL
WITH REMITTANCE
DATE
DESCRIPTION
FREEDOM OF INFORMATION ACT PAYMENT REQUEST
PSD Applicability Determinations & related
records.
1 hr. search time @ $3.50 per 1/2 hour
1 hr. in-house computer programming time
@ $8.50 per 1/2 hour
68 pages reproduced @ $.20 per page
IF THERE ARE ANY QUESTIONS, CALL JANE DOE
ON (202) 382-1234.
IMPORTANT A rtM*< wiD bt m*,t (of til cud itmitiuan ud f o. tU otlwt IWMUKM »> n^unrf *T ***oM> pn-
ctdurn Fiiurc to raom f«c>ipt foe cuh p^mmi AouU U pronptly npani4 lo KM bunvi ot oOk»
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&EPA
United States
Environmental Protection
Agency
(A-101)
Washington. DC 20460
Official Business
Penalty for Private Use
$300
EPA Form 1660-2 (Rev. 7-86)
£EPA
US Environmental Protection Agency
Washington. DC 20460
Freedom of Information Act
Reauest Acknowledgement
Date of Your Request
Date
Date Your Request Wat Received
The Agency has ten (10) working days to respond to your request.
You can expect a reply shortly after expiration of the ten-working-
day period. Further correspondence on this subject should cite the
following Request Identification Number:
(A-101) RIN
reedom of Information Officer
US Environmental Protection Agency
II-4
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UMITID STATIS
IHVMONHtNTAL MOTICTlO* 4CIMCT
W.
»«OTt«Tl»«« 4CKMCV
«»*-
OFFICIAL OUIINIU
JO* »«IVATI U««. IK*
1MO-I (l.n>
BAT*
Yout itquttt for inferaiation purtvant to tk«
of tb» Ft*edem of Inforast.ioo Act, M tmtndtd, wta i«e«iv»d
oo
Tte Aftney IMS toa (10) wofhing day* to lotpond to
youi f*q«*»t. You can txpoet nply thonly shot otpintlon
of tho tea wotkini d*y period. Furthot eoriotpondoneoon this
abjoct should eitt tht followini Rtqvtt notification
Froodon of InforvotiOB Officot
U.S. F.nviraa«tnul Protection A»oncy
TT_S
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APPENDIX III
FOIA STATUTE (5 U.S.C.S552).
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FOIA TEXT
1562. Public MeniiatJen agency rules, opinions,
orders, records, and proceedings.
(a) Each agency shall make available to the public
Information as follows:
(1) Each agency shall separately slate and cur-
rently publish In the Federal Register for the guidance
of the public
(A) descriptions of Its central and field organi-
zation and the established places at which, the em-
ployees (and In the case of a uniformed service, the
members) from whom, and the methods whereby,
the public may obtain Information, make submrttals
or requests, or obtain decisions;
(B) statements of the general course and
method by which Its functions are channeled and de-
termined. Including the nature and requirements of
all formal and Informal procedures available;
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ttons which have been adopted by tha agency and are
not published In ths Federal Register, and
(Q administrative staff manuals and Instruc-
tions to sufl thai affect a mernber of the public;
unless the materials am promptly published and
copies offered for aato. To tha extent required to pre-
vent a clearly unwarranted Invasion of personal pri-
vacy, an agency may delete Identifying details whan
It makes available or publishes an opinion, statement
of policy, Interpretation, or staff manual or Instruction.
However, in each case the juatiflcation for the dele-
tion shall ba explained fully In writing. Each agency
ahall atoo maintain and make available for pubUc In-
spection and copying current Indexes providing Iden-
tifying Information for tha public aa to any matter to-
aued, adopted, or promulgated after July 4,1987, and
required by thto paragraph to be made available or
published. Each agency ahall promptly pubttoh, quar-
terly or more frequently, and distribute (by aato or
otherwise) copies of each Index or supplements there-
to unless K determines by order published In the Fed-
eral Register that tha publication would be unnecae-
aary and Impracticable, In which case the agency shall
nonetheless provide copies of auch Index on request
at a coat not to exceed the direct coat of duplication.
A final order, opinion, atatement of policy, interpreta-
tion, or staff manual or Instruction that affects a mem-
ber of the public may ba railed on, used, or. cited aa
precedent by an agency againat a party other than an
agency only If
(I) It has been Indexed and either made
available or published as provided by thto paragraph;
or '
(II) the party has actual and timely notice
of the terms thereof.
(3) Except wtth respect to the records made
available under paragraphs (1) and (2) of thto subeeo-
tton, aach agency, upon any request for records which
(A) reasonably describes such records and (B) to made
In accordance with published rules stating ths time.
place, fees (If any), and procedures to be followed,
ahall make the records promptly available to any p*r-
aon.
(4XA) In order to cany out the provisions of thto
action, each agency ahall promulgate regulations,
pursuant to notice and receipt of public comment.
specifying a uniform schedule of fees applicable to
all constituent unite of auch agency. Such fees shall
be limited to reaaonabto standard charges for docu-
ment search and duplication and provide for recovery
of only the direct coats of auch search and duplica-
tion. Documents shall be furnished without charge or
at a reduced charge where the agency determines
that waiver or reduction of the fee to in the public In-
terest because furnishing the Information can be con-
sidered aa primarily benefiting the general public.
(B) On complaint, the district court of the
United States In ths district In which ths complainant
resides, or has his principal place of business, or In
which the agency records are situated, or In the Dis-
trict of Columbia, has Jurisdiction to enjoin the agency
from withholding agency records and to order ths pro-
duction of any agency records Improperly withheld
from the complainant In auch a case the court shall
determine the matter de novo, and may examine the
contents of such agency records In camera to deter-
mine whether such records or any part thereof shall
ba withheld under any of the exemptions set forth In
aubeectton (b) of thto section, and the burden to on
the agency to sustain Its action.
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Freedom of Information Act Manual
0) determine within ten days (excepting
Saturday*. Sunday*, and legal public holiday*) after
the receipt of any auch requeat whether to comply
with auch request and shall Immediately notify the par-
eon making auch requeat of auch determination and
tha reasons therefor, and of the right of auch person
to appeel to the head of tha agency any adverse de-
termination; and
(II) make a determination with respect to
any appeal within twenty days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt
of such appeal If on appeal the denial of the requeat
for records Is In whole or In part upheld, the agency
ahall notify the person making auch request of the pro-
visions for judlcisJ review of that determination under
paragraph (4) of this subsection.
(B) In unusual clrcumstancee as epecffled In
thla subparagraph, the time limits prescribed In either
clauae (I) or clause M of subparagraph (A) may be ex-
tended by written notice to the peraon making auch
request setting forth the reasons for such extension
and the date on which a determination la expected to
be dispatched. No auch notice ahall specify s date
that would result In an extension for more than ten
working days. As used In this subparagraph, "unusual
circumstance*" meen*. but only to the extent reason-
ably necessary to the proper processing of ths partic-
ular requeet
(I) the need to search for and collect the re-
quested records from ftekl facilities or other estab-
lishments that are separate from the office protesting
the requeat
01) the need to search for, collect, and ap-
roprlatery examine a voluminous amount of separate
and distinct records which are demanded In a single
requeet; or
Oil) the need for consultation, which ahall
be conducted with all practicable speed, with another
agency having a substantial interest In the determina-
tion of the requeat or among two or more components
of the agency having substantial subject-matter In-
terest therein.
(C) Any person making a requeet to any agen-
cy for records under paragraph (1), (35. or (3) of thla sub-
section shell be deemed to have exhauated hie admin-
tetrative remedies with respect to such request If ths
agency falls to comply with ths application time Hmtt
provisions of this paragraph. If the Government can
ahow exceptional clrcumstancee exist and that tha
agency la axercielng due diligence In responding to
ths request, ths court may retain Jurisdiction and allow
the agency additional time to complete Its review of
the records. Upon any determination by an agency to
comply with a requeat for records, the record* shall
b* made promptly available to auch person making
auch request Any notification of denial of any requeet
for records under this subsection shall sst forth ths
name* and title* or position* of each peraon responsi-
ble for the denial of such request
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Thla section doaa not apply to* mattara 'that
OKA) epeclflcally authorized under criteria estab-
lished by an Executive order to be kept aacret m the
Interest of national defense or foreign policy and (B)
are In fact property classified pursuant to auch Exec-
utive order;
Q related solely to the Interne! personnel rute*
and practice* of an agency;
(3) specifically exempted from dlacloaura by
statute (other than aection SB2b of thla title), provided
that auch statute
(A) requires that tha matters be withheld from
the public In auch a manner aa to leave no discretion
onthetaaua,or
(B) establishes particular criteria for withhold-
ing or refers to particular types of matters to be with-
nek*
(4) trade eecrets and commercial or financial
Information obtained from a paraon and privileged or
confidential;
0) Inter-egency or Intra agency memorandums
or tetters which would not be available by law to a par-
ty other than an agency In litigation with tha agency;
A personnel and medical file* and similar flies
the dlacloaura of which would constitute a clearly un-
warranted Invasion of personal privacy;
(7) Investigatory records compiled for lew en-
forcement purposes, but only to Ins extent that the
production of such records would
(A) Interfere with enforcement proceedings,
(B) deprive a paraon of a right to a fair trial or
an Impartial adjudication,
(Q constitute an unwarranted invasion of
personal privacy,
(D) dlectoee the Identity of a confidential
aource end, In the case of a record compiled by a crim-
inal law enforcement authority In the course of a
criminal Investigation, or by an agency conducting a
lawful national aecurity Intelligence Investigation,
confidential Information furnished only by the confi-
dential aource,
(E) diectoee Investigative techniques snd pro-
cedure*, or
(F) endanger the life or physical safety of tew
enforcement personnel;
(B) contained In or reieted to examination, oper-
ating, or condition report* prepared by, on behalf of,
or for the uaa of an agency responsible for the regu-
lation or supervision of financial Institutions; or
(B) geological and geophysical Information and
date. Including maps, concerning walla.
Any reasonably aegregable portion of a record ahall
be provided to any person requesting auch record
after deletion of the portions which srs exempt under
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(c) This Motion does not authorize withholding of
Information or limit tha availability of nKorda to the
public, axcapt a* specifically stated In this section.
This section Is not authority to withhold Information
from Congress.
(d) On or before March 1 of each calendar year,
each agency shall submit a report covering the preced-
ing calendar year to the Speaker of the House of
Representatives and President of the Senate for re-
ferral to the appropriate committees of the Congress.
The report shall Include
(1) the number of determinations made by such
agency not to comply with requests for records made
to such agency under subsection (a) and tha reasons
for each such determination;
0) the number of appeals made by person* un-
der subsection
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APPENDIX IV
EPA REGULATIONS
Freedom of Information Act Manual ^
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PART 2 - PUBLIC INFORMATION
Subpart A - Requests for Information
Sec.
2.100 Definitions.
2.101 Policy on disclosure of EPA records.
2.102 [Reserved]
2.103 Partial disclosure of records.
2.104 Requests to which this subpart applies.
2.105 Existing records.
2.106 Where requests for agency records shall be filed.
2.107 Misdirected written requests; oral requests.
2.108 Form of request.
2.109 Requests which do not reasonably describe records sought,
2.110 Responsibilities of Freedom of Information Officers.
2.111 Action by office responsible for responding to request.
2.112 Time allowed for issuance of initial determination.
2.113 Initial denials of requests.
2.114 Appeals from initial denials; manner of making.
2.115 Appeal determinations; by whom made.
2.116 Contents of determination denying appeal.
2.117 Time allowed for issuance of appeal determination.
2.118 Exemption categories.
2.119 Discretionary release of exempt docunents.
2.120 Fees; payment; waiver.
2.121-2.200 [Reserved]
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Subpart B - Confidentiality of Business Information
Sec.
2.201 Definitions.
2.202 Applicability of subpart; priority where provisions conflict; records
containing more than one kind of information.
2.203 Notice to be included in EPA requests, demands, and forms; method of
asserting business confidentiality claim; effect of failure to assert
claim at time of submission.
2.204 Initial action by EPA office.
2.205 Final confidentiality determination by EPA legal office.
2.206 Advance confidentiality determinations.
2.207 Class determinations.
2.208 Substantive criteria for use in confidentiality determinations.
2.209 Disclosure in special circumstances.
2.210 Nondisclosure for reasons other than business confidentiality or where
disclosure is prohibited by other statute.
2.211 Safeguarding of business information; penalty for wrongful disclosure.
2.212 Establishment of control offices for categories of business information.
2.213 Designation by business of addressee for notices and inquiries.
2.214 Defense of Freedom of Information Act suits; participation by affected
business.
2.215 Confidentiality agreements.
2.216 - 2.300 [Reserved]
2.301 Special rules governing certain information obtained under the Clean Air
Act.
2.302 Special rules governing certain information obtained under the Clean Water
Act.
2.303 Special rules governing certain information obtained under the Noise Control
i Act of 1972.
i
2.304. Special rules governing certain information obtained under the Safe Drinking
i Water Act.
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2.305 Special rules governing certain information obtained under the Solid Waste
Disposal Act, as amended.
2.306 Special rules governing certain information obtained under the Toxic
Substances Control Act.
2.307 Special rules governing certain information obtained under the Federal
Insecticide, Fungicide, and Rodenticide Act.
2.308 Special rules governing certain information obtained under the Federal Food,
Drug, and Cosmetic Act.
2.309 Special rules governing certain information obtained under the Marine
Protection, Research and Sanctuaries Act of 1972.
2.310 Special rules governing certain information obtained under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980.
2.311 Special rules governing certain information obtained under the Motor
Vehicle Information and Cost Savings Act.
Subpart C - Testimony by Employees and Production of Documents in Civil Legal
Proceedings Where the United States is Not a Party
OAS*
tjCw
2.401 Scope and purpose.
2.402 Policy on presentation of testimony and production of documents.
2.403 Procedures when voluntary testimony is requested.
2.404 Procedures when an employee is subpoenaed.
2.405 Subpoenas duces tecum.
2.406 Requests for authenticated copies of EPA documents.
AUTHORITY: 5 U.S.C. 301, 552, 553; sees. 114, 206, 208, 301, and 307 of
the Clean Air Act, as amended, 42 U.S.C. 7414, 7525, 7542, 7601, 7607; sees. 308,
501, and 509(a) of the Clean Water Act, as amended, 33 U.S.C. 1318, 1361, 1369(a);
sec. 13 of the Noise Control Act of 1972, 42 U.S.C. 4912; sees. 1445 and 1450 of
the Safe Drinking Water Act, 42 U.S.C. 300J-4, 300J-9; sees. 2002, 3007, and 9005
of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6911a, 6912, 6927, 6995;
sees. 8(c), 11, and 14 of Toxic Substances Control Act, 15 U.S.C. 2607(c), 2610,
2613; sees. 10, 12, and 25 of Federal Insecticide, Fungicide and Rodenticide Act,
as amended, 7 U.S.C. 136h, 136j, 136v; sec. 408(f) of the Federal Food, Drug and
Cosmetic Act, as amended, 21 U.S.C. 346(f); sees. 104(f) and 108 of the Marine
Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. 1414(f), 1418; sec.
104 of the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. 9604; sec. 505 of the Motor Vehicle Information and Cost
Savings Act, as amended, 15 U.S.C. 2005; Reorganization Plan No. 3 of 1970,
5 U.S.C. App.; 33 U.S.C. 361(a); 42 U.S.C. 7601(a).
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Subpart A - Requests for Information
S2.100 Definitions.
For the purposes of this part:
(a) "EPA" means the United States Environmental Protection Agency.
(b) "EPA record" or, simply "record" means any document, writing,
photograph, sound or magnetic recording, drawing, or other similar thing by which
information has been preserved, from which the information can be retrieved and
copied, and which is, was, or is alleged to be possessed by EPA. It may include
copies of the records of other Federal agencies (see §2.111(d)). The term includes
informal writings (such as drafts and the like), and also includes information
preserved in a form which must be translated or deciphered by machine in order to
be intelligible to humansl The term includes documents and the like which were
created or acquired by EPA, its predecessors, its officers, and its employees by
use of Government funds or in the course of transacting official business.
However, the term does not .include materials which are legally owned by an EPA
officer or employee in his or her purely personal capacity. Nor does the term
include materials published by non-Federal organizations which are readily avail-
able to the public, such as books, journals, and periodicals available through
reference libraries, even if such materials are in EPA's possession.
(c) "Request" means a request to inspect or obtain a copy of one or more
records.
(d) "Requestor" means any person who has submitted a request to EPA.
§2.101 Policy on disclosure of EPA records.
(a) EPA will make the fullest possible disclosure of records to the
public, consistent with the rights of individuals to privacy, the rights of
persons in business information entitled to confidential treatment, and the need
for EPA to promote frank internal policy deliberations and to pursue its official
activities without undue disruption.
(b) All EPA records shall be available to the public unless they are
exempt from the disclosure requirements of 5 U.S.C. 552.
(c) All nonexempt EPA records shall be available to the public upon request
regardless of whether any justification or need for such records has been shown
by the requestor.
§2.102 [Reserved]
§2.103 Partial disclosure of records.
If a requested record contains both exempt and nonexerapt material, the
nonexempt material shall be disclosed, after the exempt material has been deleted
in accordance with §2.119.
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§2.104 Requests to which this subpart applies.
(a) This subpart applies to any written request (other than a request
made by another Federal agency) received by any EPA office, whether or not the
request cites the Freedom of Information Act, 5 U.S.C. 552. See §2.107(a) and
§2.112(b) regarding the treatment of requests which are directed by the requestor
to offices other than those listed in §2.106.
(b) Any written request to EPA for existing records prepared by EPA for
routine public distribution, e.g., pamphlets, copies of speeches, press releases,
and educational materials, shall be honored. No individual determination under
§2.111 is necessary in such cases, since preparation of the records for routine
public distribution itself constitutes a determination that the records are
available to the public.
§2.105 Existing records.
(a) The Freedom of Information Act, 5 U.S.C. 552, does not require the
creation of new records in response to a request, nor does it require EPA to
.place a requestor's name on a distribution list for automatic receipt of certain
kinds of records as they come into existence. The Act establishes requirements
for disclosure of existing records.
(b) All existing EPA records are subject to routine destruction according
to standard record retention schedules.
§2.106 Where requests for agency records shall be filed.
(a) A request for records may be filed with the EPA Freedom of Information
Officer, A-101, 401 M Street, S.W., Washington, D.C. 20460.
(b) Should the requestor have reason to believe that the records sought
may be located in an EPA regional office, he may transmit his request to the
appropriate regional Freedom of Information Office indicated below:
(1) Region I (Massachusetts, Connecticut, Maine, New Hampshire,
Rhode Island, Vermont):
U.S. Environmental Protection Agency
Freedom of Information Officer, Room 2303
John F. Kennedy Federal Building, Boston, Mass. 02203
(2) Region II (New Jersey, New York, Puerto Rico, Virgin Islands):
U.S. Environmental Protection Agency
Freedom of Information Officer
Room 1005,
26 Federal Plaza
New York, NY 10007
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(3) Region III (Delaware, Maryland, Pennsylvania, Virginia, West
Virginia, District of Colunbia):
U.S. Environmental Protection Agency
Freedom of Information Officer
841 Chestnut Street
Philadelphia, PA 19107
(4) Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, Tennessee):
U.S. Environmental Protection Agency
Freedom of Information Officer
345 Courtland Street, N.E.
Atlanta, GA 30365.
(5) Region V (Illinois, Indiana, Michigan, Minnesota, Ohio,
Wisconsin):
U.S. Environmental Protection Agency
Freedom of Information Officer
230 South Dearborn Street
Chicago, IL 60604.
(6) Region VI (Arkansas, louisiana, New Mexico, Oklahoma, Texas)
U.S. Environmental Protection Agency
Freedom of Information Officer (6M-MC)
1201 ELm Street
Dallas, TX 75270
(7) Region VII (Iowa, Kansas, Missouri, Nebraska):
U.S. Environmental Protection Agency
Freedom of Information Officer
726 Minnesota Avenue
Kansas City, KS 66101
(8) Region VIII (Colorado, Montana, North Dakota, South Dakota,
Utah, Wyoming):
U.S. Environmental Protection Agency
Freedom of Information Officer
One Denver Place
999 18th Street
Suite 1300
Denver, CO 80202-2413.
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(9) Region IX (Arizona, California, Hawaii, Nevada, Anerican Samoa,
Guam, Trust Territory of Pacific Islands):
U.S. Environmental Protection Agency
Freedom of Information Officer
215 Fremont Street
San Francisco, CA 94105
(10) Region X (Alaska, Idaho, Oregon, Washington):
U.S. Environmental Protection Agency
Freedom of Information Officer
1200 Sixth Avenue
Seattle, WA 98101
§2.107 Misdirected written requests; oral requests.
(a) EPA cannot assure that a timely or satisfactory response under this
subpart will be given to written requests that are addressed to EPA offices,
officers or employees other than the Freedom of Information Officers listed in
§2.106. Any EPA officer or employee who receives a written request for inspection
or disclosure of EPA records shall promptly forward a copy of the request to the
appropriate Freedom of Information Officer, by the fastest practicable means, and
shall, if appropriate, commence action under §2.111. For purposes of §2.112, the
time allowed with respect to initial determinations shall be computed from the
day on which the appropriate Freedom of Information Officer receives the request.
(b) While EPA officers and employees will attempt in good faith to comply
with requests for inspection or disclosure of EPA records made orally, by telephone
or otherwise, such oral requests are not required to be processed in accordance
with this Subpart.
§2.108 Form of request.
A request shall be made in writing, shall reasonably describe the records
sought in a way that will permit their identification and location, and should
be addressed to one the addresses set forth in §2.106, but otherwise need not be
in any particular form.
§2.109 Requests which do not reasonably describe records sought.
»
(a) If the description of the records sought in the request is not
sufficient to allow EPA to identify and locate the requested records, the EPA
office taking action under §2.111 will notify the requestor (by telephone when
practicable) that the request cannot be further processed until additional
information is furnished.
(b) EPA will make every reasonable effort to assist in the identification
and description of records sought and to assist the requestor in formulating his
request. If a request is described in general terms (e.g., all records having to
do with a certain area), the EPA office taking action under §2.111 may communicate
with the requestor (by telephone when practicable) with a view toward reducing
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the administrative burden of processing a broad request and minimizing the fees
payable by the requestor. Such attempts will not be used as a means to 'discourage
requests, but rather as a means to help identify with more specificity the records
actually sought.
§2.110 Responsibilities of Freedom of Information Officers.
(a) Upon receipt of a written request, the Freedom of Information Officer
(vhether at EPA Headquarters or at an EPA region) shall mark the request with the
date of receipt, and shall attach to the request a control slip indicating the
date of receipt, the date by which response is due, a unique Request Identification
Number, and other pertinent administrative information. The request and control
slip shall then be forwarded immediately to the EPA office believed -to be
responsible for maintaining the records requested. (If the records requested are
believed to be located at two or more EPA offices, each such office shall be
furnished a copy of the request and control slip, with instructions concerning
which office shall serve as the lead office for coordinating the response.) The
Freedom of Information Officer shall retain a file copy of the request and control
slip, and shall monitor the handling of the request to ensure a timely response.
(b) The Freedom of Information Officer shall maintain a file concerning
each request received, which shall contain a copy of the request, initial and
appeal determinations, and other pertinent correspondence and records.
(c) The Freedom of Information officer shall collect and maintain the
information necessary to compile the reports required by 5 U.S.C. 552(d).
§2.111 Action by office responsible for responding to request.
(a) Whenever an EPA office becomes aware that it is responsible for
responding to a request, the office shall:
(1) Take action under §2.109, if required, to obtain a better description
of the records requested;
(2) locate the records as promptly as possible, or determine that the
records are not known to exist, or that they are located at another EPA office,
or that they are located at another Federal agency and not possessed by EPA;
(3) When appropriate, take action under §2.120(c) to obtain payment or
assurance of payment;
(4) If any located records contain business information, as defined in
§2.201(c), comply with subpart B of this part;
(5) Determine which of the requested records legally must be withheld,
and why (see §2.119(b));
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(6) Of the requested records which are exempt from mandatory disclosure
but which legally may be disclosed (see §2.119(a)), determine which records will
be withheld, and why;
(7) Issue an initial determination within the allowed period (see §2.112),
specifying (individually or by category) which records will be disclosed and
which will be withheld, and signed by a person authorized to issue the determination
under §2.113(b). Denials of requests shall comply with 2.113; and
(8) Furnish the appropriate Freedom of Information Officer a copy of the
determination. If the determination denied a request for one or more existing,
located records, the responding office shall also furnish the Freedom of Informa-
tion Officer the name, address, and telephone nunber of the EPA employee(s)
having custody of the records, and shall maintain the records in a manner permitting
their prompt forwarding to the General Counsel upon request if an appeal from the
initial denial is filed. See also §2.204(f).
(b) If it appears that some or all of the requested records are not in the
possession of the EPA office which has been assigned responsibility for responding
to the request but may be in the possession of some other EPA office, the Freedom of
Information officer who is monitoring the request shall be so informed immediately.
(c) In determining which records are responsive to a request, the EPA office
responding shall ordinarily include those records within the Agency's possession
as of the date of the Agency's receipt of the request.
(d) When a request for EPA records encompasses records of another Federal
agency, the EPA office shall either: (1) Respond to the request after consulting
with the originating agency when appropriate or (2) promptly transfer responsibility
for responding to the request to the originating agency provided that the other
agency is subject to the FOIA. Whenever the EPA office refers a request to
another agency, it shall notify the requestor of the referral.
§2.112 Time allowed for issuance of initial determination.
(a) Except as otherwise provided in this section, no later that the tenth
working day after the date of receipt by a Freedom of Information Office of a
request for records, the EPA office responsible for responding to the request
shall issue a written determination to the requestor stating which of the requested
records will, and which will not, be released and the reason for any denial of a
request. If the records are not known to exist or are not in EPA's possession,
the EPA office shall so inform the requestor. To the extent requested records
which are in EPA's possession are published by the Federal government, the
response may inform the requestor that the records are (available for inspection
and where copies can be obtained.
(b) The period of 10 working days shall be measured from the date the
request is first received and logged in by the Headquarters or regional Freedom
of Information Office.
(c) There shall be excluded from the period of 10 working days (or any
extension thereof) any time which elapses between the date that a requestor is
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notified by EPA under §2.109 that his request does not reasonably identify the
records sought, and the date that the requestor furnishes a.reasonable identifi-
cation.
(d) There shall be excluded from the period of 10 working days (or any
extension thereof) any time which elapses between the date that a requestor is
notified by EPA under §2.120 that prepayment or assurance of payment of fees is
required, and the date that the requestor pays (or makes suitable arrangements to
pay) such charges.
(e) The EPA office taking action under §2.111, after notifying the appro-
priate Freedom of Information Office, may extend the basic 10-day period estab-
lished under subsection (a) of this section by a period not to exceed 10 additional
working days, by furnishing written notice to the requestor within the basic
10-day period stating the reasons for such extension and the date by which the
office expects to be able to issue a determination. The period may be so extended
only when absolutely necessary, only for the period required, and only when one
or more of the following unusual circumstances require the extension:
(1) There is a need to search for and collect the requested records from
field facilities or other establishments that are separate from the office
processing the request;
(2) There is a need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in a single
request; or
(3) There is a need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in the
determination of the request or among two or more components of EPA.
(f) Failure of EPA to issue a determination within the 10-day period or
any authorized extension shall constitute final agency action which authorizes
the requestor to commence an action in an appropriate Federal distinct court to
obtain the records.
§2.113 Initial denials of requests.
(a) An initial denial of a request may be issued only for the following
reasons:
(1) A statutory provision, provision of this part, or court order requires
that the information not be disclosed;
(2) The record is exempt from mandatory disclosure under 5 TJ.S.C. 552(b)
and EPA has decided that the public interest would not be served by disclosure;
or
(3) Section 2.204(d)(1) requires initial denial because a third person must
be consulted in connection with a business confidentiality claim.
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(b) The Deputy Administrator, Assistant Administrators, Regional Admini-
strators, the General Counsel, the Inspector General, Associate Administrators,
and heads of headquarters staff offices are delegated the authority to issue initial
determinations. This authority may be redelegated; PROVIDED that the authority to
issue initial denials of requests for existing, located records (other than denials
based solely on § 2.204(d)(1) may be redelegated only to persons occupying posi-
tions not lower than division director or equivalent.
(c) [Reserved]
(d) Each initial determination to deny a request shall be written, signed,
and dated, shall contain a reference to the Request Identification Number, shall
identify the records that are being withheld (individually, or, if the denial
covers a large number of similar records, by described category), and shall state
the basis for denial of each record or category of records being withheld.
However, no initial determination shall reveal the existence or nonexistence of
records if identifying the mere fact of the existence or non-existence of those
records would reveal confidential business information, confidential personal
information, or confidential investigation. Instead of identifying the existence
or nonexistence of the records, the initial determination shall state that the
request is denied because either the records do not exist or they are exempt
from mandatory disclosure under the applicable provision of 5 U.S.C. 552(b). No
such determination shall, be issued without the concurrence of the appropriate
EPA legal office.
(e) If the issuance of the determination to deny a request was directed
by some EPA officer or employee other than the person signing the determination
letter, that other person's identity and position shall be stated in the deter-
mination letter.
(f) Each initial determination which denies, in whole or in part, a request
for one or more existing, located EPA records shall state that the requestor may
appeal the initial denial by sending a written appeal to the address shown in
§ 2.106(a) within 30 days of receipt of the determination.
(g) A determination shall be deemed issued on the date the determination
letter is placed in EPA mailing channels for first class mailing to the requestor,
delivered to the U.S. Postal Service for mailing, or personally delivered to the
requestor, whichever date first occurs.
§2.114 Appeals from initial denials; manner of making.
(a) Any person whose request for one or more existing, located EPA records
has been denied in whole or in part by an initial determination may appeal that
denial by addressing a written appeal to the address shown in § 2.106(a).
(b) An appeal should be mailed no later than 30 calendar days after date
the requestor received the initial determination on the request. An untimely
appeal may be treated either as a timely appeal or as a new request, at the
option of the Freedom of Information Officer.
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(c) The appeal letter shall contain a reference to the Request Identi-
fication Number (RIN), the date of the initial determination, and the name and
address of the person who issued the initial denial. The appeal letter shall
also indicate which of the records to which access was denied are the subjects
of the appeal.
52.115 Appeal determination; by whom made.
(a) The General Counsel shall make one of the following legal determinations
in connection with every appeal from the initial denial of a request for an existing,
located record:
(1) The record must be disclosed;
(2) The record must not be disclosed, because a statute or a provision of
this part so requires; or
(3) The record is exempt from mandatory disclosure but legally may be
disclosed as a matter of Agency discretion.
(b) Whenever the General Counsel has determined under paragraph (a)(3) of
this section that a record is exempt from mandatory disclosure but legally may be
disclosed and the record has not been, disclosed by EPA under 5 U.S.C. 552, the
matter shall be referred to the Assistant Administrator for External Affairs. If
the Assistant Administant Administrator determines that the public interest would
not be served by disclosure, a determination denying the appeal shall be issued
by the General Counsel. If the Assistant Administrator determines that the public
interest would be served by disclosure, the record shall be disclosed unless the
Administrator (upon a review of the matter requested by the appropriate Assistant
Administrator, Associate Administrator, Regional Administrator, the General
Counsel, or the head of a headquarters staff office) determines that the public
interest would not be served by disclosure, in which case the General Counsel shall
I.;v3ue a determination denying the appeal. This-review by the Assistant Administra-
tor for External Affairs shall not apply to appeals from initial determinations
by the Office of Inspector General to deny requests.
(c) The General Counsel may delegate his authority under paragraph (a)
of this section to a Regional Counsel, or to any other attorney employed on a
irulltime basis by EPA, in connection with any category of appeals or any indivi-
dual appeal.
(d) The Assistant Administrator for External Affairs may delegate the
authority under paragraph (b) of this section to the Deputy Assistant Administra-
tor for External Affairs.
§2.116 Contents of determination denying, appeal.
A determination denying an appeal from an initial denial shall be in writing,
shall state which of the exemptions in 5 U.S.C. 552(b) apply to each requested
existing record, and shall state the reason(s) for denial of the appeal. A denial
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determination shall also state the name and position of each EPA officer or employee
who directed that the appeal be denied. Such a determination shall further state
that the person whose request was denied may obtain de novo judicial review of
the denial by complaint filed with the district court of the United States in the
district in which the complainant resides, or in which the Agency records are
siutated, or in the District of Colunbia, pursuant 5 U.S.C. 552(a)(4). However,
no determination denying an appeal shall reveal the existence or nonexistence of
records if identifying the mere fact of the existence or nonexistence of those
records would reveal confidential business information, confidential personal
information, or a confidential investigation. Instead of identifying the
existence or nonexistence of the records, the determination shall state that the
appeal is denied because either the records do not exist or they are exempt from
mandatory disclosure under the applicable provision of 5 U.S.C. 552(b).
§2.117 Time allowed for issuance of appeal determination.
(a) Except as otherwise provided in this section, not later than the
twentieth working day after the date of receipt by the Freedom of Information
Officer at EPA Headquarters of an appeal from an initial denial of a request for
records, the General Counsel shall issue a written determination stating which of
the requested records (as to which an appeal was made) shall be disclosed and
which shall not be disclosed.
.(b) The period of 20 working days shall be measured from the date an appeal
is first received by the Freedom of Information Officer at EPA Headquarters,
except as other provided in §2.205(a).
(c) The Office of General Counsel, after notifying the Freedom of Informa-
tion Officer at EPA Headquarters, may extend the basic 20-day period established
under subsection (a) of this section by a period not to exceed 10 additional
working days, by furnishing written notice to the requestor within the basic
20-day period stating the reasons for such extension and the date by which the
office expects to be able to issue a determination. The period may be so extended
only when absolutely necessary, only for the period required, and only when one
or more of the following unusual circumstances require extension:
(1) There is a need to search for and collect the records from field
facilities or other establishments that are separate from the office processing
the appeal;
(2) There is a need to search for, collect, and appropriately examine a
voluninous amount of separate and distinct records which are demanded in a single
request; or
(3) There is a need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in the
determination of the request or among two or more components of EPA.
(d) No extension of the 20-day period shall be issued under subsection (c)
of this section which would cause the total of all such extensions and of any
extensions issued under §2.112(e) to exceed 10 working days.
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§2.118 Exemption categories.
(a) 5 U.S.C. 552(b) establishes nine exclusive categories of matters which
are exempt from the mandatory disclosure requirements of 5 U.S.C. 552(a). No re-
quest under 5 U.S.C. 552 for an existing, located record in EPA's possession
shall be denied by any EPA office or employee unless the record contains (or its
disclosure would reveal) matters that are
(1) Specifically authorized under criteria established by an Executive
Order to be kept secret in the interest of national defense or foreign policy and
are in fact properly classified pursuant to such Executive Order;
(2) Related solely to the internal personnel rules and practices of an
agency;
(3) Specifically exempted from disclosure by statute (other than 5 U.S.C.
552(b)); PROVIDED, That such statute:
(i) Requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to particular
types of matters to be withheld;
«
(4) Trade secrets and commercial or financial information obtained from a
person and privileged or confidential (see Subpart B);
(5) Interagency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the agency;
(6) Personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy;
(7) Investigatory records compiled for law enforcement purposes, but only
to the extent that the production of such records would: (a) interfere with
enforcement proceedings; (b) deprive a person of a right to a fair trial or an
impartial adjudication; (c) constitute an unwarranted invasion of personal privacy;
(d) disclose the identity of a confidential source and, in the case of a record
compiled by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security intelligence
investigation, confidential information furnished only by the confidential source;
(e) disclose investigative techniques and procedures; or (f) endanger the life
or physical safety of law enforcement personnel;
(8) Contained in or related to examination, operating, or condition reports
prepared by, on behalf of, or for the use of an agency responsible for the
regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps,
concerning wells.
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(b) The fact that the applicability of an exemption permits the withholding
of a requested record (or portion thereof) does not necessarily mean that the
record must or should be withheld. See 2.119.
§2.119 Discretionary release of exempt documents.
(a) An EPA office may, in its discretion, release requested records despite
the applicability of one or more of the exemptions listed in § 2.118(a)(2), (a)(5),
or (a)(7). Disclosure of such records is encouraged if no important purpose
would be served by withholding the records.
(b) As a matter of policy, EPA will not release a requested record if EPA
has determined that one or more of the exemptions listed in §2.118(a)(1), (a)(3),
(a)(4), (a)(6), (a)(8), or (a)(9) applies to the record, except when ordered to
do so by a Federal court or in exceptional circumstances under appropriate
restrictions with the approval of the Office of General Counsel or a Regional
Counsel.
§2.120 Fees; payment; waiver.
(a) FEE SCHEDULE. Fees will be charged requestors for searching for and
producing requested records in accordance with the following schedule:
(1) Record search time (EPA employees):
(i) Personnel at GS-8 and below. For each 1/2 hour, or portion thereof,
spent searching for a requested record, $3.50.
(ii) Personnel at GS-9 and above. For each 1/2 hour, or portion thereof,
spent searching for a requested record, $7.00.
(2) Computer programming time (EPA employees) , $8.50 per half hour.
(3) Reproduction of documents (EPA employees) (paper copy of paper
original) $0.20 per page.
(4) Other costs of searching for or duplicating records (including such
items as computer system time; contractor computer programming time; contractor
search time; contractor reproduction costs; reproduction of photographs, micro-
films, or magnetic tape; computer printouts; and transportation of records), will
be the actual direct cost to EPA.
(5) No charge shall be made
(i) For examination and evaluation of records which have been located and
which are known to be among those requested;
(ii) For the cost of preparing or reviewing letters of response to request
or appeal;
(iii) If the total fee in connection with a request is less than $25.00,
or if the costs of collecting the fee would otherwise exceed the amount of the fee
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(however, ERA may group requests by one requestor to determine the total fee);
(iv) For responding to a request by an individual for one copy of a record
pertaining to the individual from a Privacy Act system of records;
(v) For furnishing records requested by either House of Congress, or by a
duly authorized comnittee or subcommittee of Congress, unless the records are
requested for the benefit of an individual Member of Congress or for a constituent;
(vi) For furnishing records requested by and for the official use of other
Federal agencies; or
(vii) For furnishing records needed by an EPA contractor, subcontractor, or
grantee to perform the work required by the EPA contract or grant.
(b) METHOD OF PAYMENT. All fee payments shall be in the form of a check
or money order payable to the "U.S. Environmental Protection Agency" and shall be
sent (accompanied by a reference to the pertinent Request Identification Number(s))
to the appropriate Headquarters or Regional Office lock box address listed below.
Under the Debt Collection Act of 1982 (Pub. L. 97-365), payment (except for pre-
payment) shall be due within thirty (30) calendar days of date of billing. If
payment is not received at the end of thirty calendar days, interest and a late
payment handling charge will be assessed. In addition, under this Act, a penalty
charge will be applied on any principal amount not paid within ninety (90) calendar
days of the due date for payment.
(1) EPAWashington Headquarters, P.O. Box 360277M, Pittsburgh, PA. 15251;
(2) EPARegion 1, P.O. Box 360197M, Pittsburgh, PA 15251;
(3) EPARegion 2, P.O. Box 360188M, Pittsburgh, PA. 15251;
(4) EPARegion 3, P.O. Box 360515M, Pittsburgh, PA. 15251;
(5) EPARegion 4, P.O. Box 100142, Atlanta, GA. 30384;
(6) EPARegion 5, P.O. Box 70753, Chicago, IL 60673;
(7) EPARegion 6, P.O. Box 360582M, Pittsburgh, PA. 15251;
(8) EPARegion 7, P.O. Box 360748M, Pittsburgh, PA. 15251;
(9) EPARegion 8, P.O. Box 360859M, Pittsburgh, PA. 15251;
(10) EPARegion 9, P.O. Box 360863M, Pittsburgh, PA. 15251;
(11) EPA-Region 10, P.O. Box 360903M, Pittsburgh, PA. 15251.
(c) PREPAYMENT OR ASSURANCE OF PAYMENT. If an EPA office determines or
estimates that the unpaid fees attributable to one or more requests by the same
requestor exceed or will exceed $25.00, that office need not search for, duplicate
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or disclose records in response to any request by the requestor until the requestor
pays, or makes acceptable arrangements to pay, the total amount of fees due (or
estimated to become due) under this section. In such a case, the EPA office shall
promptly inform the requestor (by telephone, if practicable) of the need to make
payment or arrangements to pay. See also § 2.112(d).
(d) REDUCTION OR WAIVER OF FEE. The fee chargeable under this section
shall be reduced or waived by EPA if the Agency determines that a waiver or
reduction of the fee is in the public interest because furnishing the information
can be considered as primarily benefitting the general public. Reduction or waiver
of fees shall be considered (but need not necessarily be granted) in connection
with each request from a representative of the press or other communications
median, or from a public interest group. A request for reduction or waiver of
fees shall be addressed to the appropriate Freedom of Information Officer or EPA
office which is responding to the request for records. The latter office shall
initially determine whether the fee shall be reduced or waived, and shall so
inform the requestor. This initial determination may be appealed by letter
addressed to the EPA Freedom of Information Officer. The Assistant Administrator
for External Affairs or, if delegated the authority, the Deputy Assistant Admini-
strator for External Affairs, shall decide such appeals.
(e) The EPA Financial Management Division shall maintain a record of all
fees charged requestors for searching for and reproducing requested records under
this section. If after the end of 60 calendar days from the date on which request
for payment was made the requestor has not submitted payment to the appropriate
EPA billing address (as listed in §2.120(b)), the Financial Management Division
shall place the requestor's nane on a delinquent list which is sent to the EPA
Freedom of Information Officer. If a requestor whose name appears on the delinquent
list makes a request under this part, the EPA Freedom of Information Officer
shall inform the requestor that EPA will not process the request until the requestor
submits payment of the overdue fee from the earlier request. Any request made by
an individual who specifies an affiliation with or representation of a corporation,
association, law firm, or other organization shall be deemed to be a request by
the corporation, association, law firm, or other organization. If an organization
placed on the delinquent list can show that the person vdio made the request for
which payment was overdue did not make the request on behalf of the organization,
the organization will be removed form the delinquent list but the name of the
individual shall remain on the list. A requestor shall not be placed on the
delinquent list if a request for a reduction or for a waiver is pending under
paragraph (d) of this section.
§2.121-§2.200 [Reserved]
Subpart B-Confidentiality of Business Information
§2.201 Definitions.
For the purposes of this subpart:
(a) "person" means an individual, partnership, corporation, association,
or other public or private organization or legal entity, including Federal, State
or local governmental bodies and agencies and their employees.
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(b) "Business" means any person engaged in a business, trade, employment,
calling or profession, whether or not all or any part of the net earnings derived
from such engagement by such person inure (or may lawfully inure) to the benefit
of any private shareholder or individual.
(c) "Business information" (sometimes referred to simply as "information")
means any information which pertains to the interests of any business, which was
developed or acquired by that business, and (except where the context otherwise
requires) which is possessed by EPA in recorded form.
(d) "Affected business" means, with reference to an item of business
information, a business which has asserted (and not waived or withdrawn) a business
confidentiality claim covering the information, or a business which could be
expected to make such a claim if it were aware that disclosure of the information
to the public was proposed.
(e) "Reasons of business confidentiality" include the concept of trade
secrecy and other related legal concepts which give (or may give) a business the
right to preserve the confidentiality of business information and to limit its use
or disclosure by others in order that the business may obtain or retain business
advantages it derives from its rights in the information. The definition is meant
to encompass any concept which authorizes a Federal agency to withhold business
information under 5 U.S.C. 552(b)(4), as well as any concept which requires EPA
to withhold information from the public for the benefit of a business under
18 U.S.C. 1905 or any of the various statutes cited in §2.301 through §2.309.
(f) [Reserved]
(g) Information which is "available to the public" is information in
EPA's possession which EPA will furnish to any member of the public upon request
and which EPA may make public, release or otherwise make available to any person
whether or not its disclosure has been requested.
(h) "Business confidentiality claim" (or, simply, "claim") means a claim
or allegation that business information is entitled to confidential treatment for
reasons of business confidentiality, or a request for a determination that such
information is entitled to such treatment.
(i) "Voluntarily submitted information" means business information in
EPA's possession
(1) The submission of which EPA had no statutory or contractual
authority to require; and
(2) The submission of which was not prescribed by statute or regulation
as a condition of obtaining some benefit (or avoiding some disadvantage) under a
regulatory program of general applicability, including such regulatory programs
as permit, licensing, registration, or certification programs, but excluding
programs concerned solely or primarily with the award or administration by EPA of
contracts or grants.
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(j) "Recorded" means written or otherwise registered in some form for
preserving information, including such forms as drawings, photographs, video-
tape, sound recordings, punched cards, and computer tape or disk.
(k) [Reserved]
(1) "Administrator," "Regional Administrator," "General Counsel,"
"Regional Counsel," and "Freedom of Information Officer" means the EPA officers
or employees occupying the position so titled.
(m) "EPA office" means any organizational element of EPA, at any level
or location. (The terms "EPA, office" and "EPA legal office" are used in this
subpart for the sake of brevity and ease of reference. When this subpart requires
that an action be taken by an "EPA office" or "EPA legal office," it is the
responsibility of the officer or employee in charge of that office to take the
action or ensure that it is taken.)
(n) "EPA legal office" means the EPA General Counsel and any EPA office
over which the General Counsel exercises supervisory authority, including the
various Offices of Regional Counsel. (See paragraph (m) of this section.)
(o) A "working day" is any day on which Federal government offices are
open for normal business. Saturdays, Sundays, and official Federal holidays are
not working days; all other days are.
§2.202 Applicability of subpart; priority where provisions conflict; records
containing more than one kind of information.
(a) Sections 2.201 through 2.215 establish basic rules governing business
confidentiality claims, the handling by EPA of business information which is or
may be entitled to confidential treatment, and determinations by EPA of whether
information is entitled to confidential treatment for reasons of business
confidentiality.
(b) Various statutes (other than 5 U.S.C. 552) under which EPA operates
contain special provisions concerning the entitlement to confidential treatment
of information gathered under such statutes. Sections 2.301 through 2.311 prescribe
rules for treatment of certain categories of business information obtained under
the various statutory provisions. Paragraph (b) of each of those sections should
be consulted to determine whether any of those sections applies to the particular
information in question.
(c) The basic rules of §§2.201 through 2.215 govern except to the extent
that they are modified or supplanted by the special rules of §§2.301 through
2.311. In the event of a conflict between the provisions of the basic rules and
those of a special rule which is applicable to the particular information in
question, the provision of the special role shall govern.
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(d) If two or more of the sections containing special rules apply to the
particular information in question, and the applicable sections prescribe conflict-
ing special rules for the treatment of the information, the rule **iich provides
greater or wider availability to the public of the information shall govern.
(e) For most purposes, a document or other record may usefully be treated
as a single unit of "information," even though in fact the document or record is
comprised of a collection of individual items of information. However, in applying
the provisions of this subpart, it will often be necessary to separate the indivi-
dual items of information into two or more categories, and to afford different
treatment to the information in each such category, ihe need for differentiation
of this type may arise, e.g., because a business confidentiality claim covers only
a portion of a record, or because only a portion of the record is eligible for
confidential treatment. EPA offices taking action under this subpart nmst be
alert to this problem.
(f) In taking actions under this subpart, EPA offices should consider
whether it is possible to obtain the affected business's consent to disclosure of
useful portions of records while protecting the information which is or may be
entitled to confidentiality (e.g., by withholding such portions of a record as
would identify a business, or by disclosing data in the form of industry-wide
aggregates, multi-year averages or totals, or some similar form).
(g) This subpart does not apply to questions concerning entitlement to
confidential treatment or information which concerns an individual solely in his
personal, as opposed to business, capacity.
§2.203 Notice to be included in EPA requests, demands, and forms; method of
asserting business confidentiality claim; effect of failure to assert
claim at time of submission.
(a) Notice to be included in certain requests and demands for information,
and in certain forms. Whenever an EPA office makes a written request or demand
that a business furnish information which, in the office's opinion, is likely to
be regarded by the business as entitled to confidential treatment under this
subpart, or whenever an EPA office prescribes a form for use by businesses in
furnishing such information, the request, demand, or form shall include or enclose
a notice which --
(1) States that the business may, if it desires assert a business
confidentiality claim covering part or all of the information, in the manner
described by paragraph (b) of this section, and that information covered by such
a claim will be disclosed by EPA only to the extent, and by means of the procedures,
set forth in this subpart;
(2) States that if no such claim accompanies the information when it is
received by EPA, it may be made available to the public by EPA without further
notice to the business; and
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(3) Furnishes a citation of the location of this subpart in the Code of
Federal Regulations and the Federal Register.
(b) METHOD AND TIME OF ASSERTING BUSINESS CONFIDENTIALITY CLAIM. A busi-
ness which is submitting information to EPA may assert a business confidentiality
claim covering the information by placing on (or attaching to) the information,
at the time it is submitted to EPA, a cover sheet, stamped or typed legend, or
other suitable form of notice employing language such as "trade secret," "proprie-
tary," or "company confidential." Allegedly confidential portions of otherwise
nonconfidential documents should be clearly identified by the business, and may
be submitted separately to facilitate identification and handling by EPA. If the
business desires confidential treatment only until a certain event or until the
occurrence of a certain event, the notice should so state.
(c) EFFECT OF FAILURE TO ASSERT CLAIM AT TIME OF SUBMISSION OF INFORMATION.
If information was submitted by a business to EPA on or after [the effective date
of this subpart], in response to an EPA request or demand (or on an EPA-prescribed
form) which contained the substance of the notice required by paragraph (a) of
this section, and if no business confidentiality claim accompanied the information
when it was received by EPA, the inquiry to the business normally required by
§2.204(c)(2) need not be made. If a claim covering the information is received
after the information itself is received, EPA will make such efforts as are
administratively practicable to associate the late claim with copies of the
previously-submitted information in EPA files (see §2.204(c)(1). However, EPA
cannot assure that such efforts will be effective, in light of the possibility of
prior disclosure or widespread prior dissemination of the information.
S2.204 Initial action by EPA office.
(a) SITUATIONS REQUIRING ACTION. Tnis section prescribes procedures to
be used by EPA offices in making initial determinations of whether business
information is entitled to confidential treatment for reasons of business confi-
dentiality. Action shall be taken under this section whenever an EPA office:
(i) learns that it is responsible for responding to a request under
5 U.S.C. 552-for the release of business information; in such a case, the office
shall issue an initial determination within the period specified in §2.112;
(ii) desires to determine whether business information in its possession is
entitled to confidential treatment, even though no request for release of the
information has been received; or
(iii) determines that is likely that EPA eventually will be requested to
disclose the information at some future date and thus will have to determine
whether the information is entitled to confidential treatment. In such a case
this section's procedures should be initiated at the earliest practicable time,
in order to increase the time available for preparation and submission of comments
and for issuance of determinations, and to make easier the task of meeting response
deadlines if a request for release of the information is later received under
5 U.S.C. 552.
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(b) PREVIOUS CONFIDENTIALITY DETERMINATION. The EPA office shall first
ascertain whether there has been a previous determination, issued by a Federal
court or by an EPA legal office acting under this subpart, holding that the
information in question is entitled to confidential treatment for reasons of
business confidentiality.
(1) If such a determination holds that the information is entitled to
confidential treatment, the EPA office shall furnish any person whose request for
the information is pending under 5 U.S.C. 552 an initial determination (see §2.111
and §2.113) that the information has previously been determined to be entitled to
confidential treatment, and that the request is therefore denied. The office
shall furnish such person the appropriate case citation or EPA determination. If
the EPA office believes that a previous determination which was issued by an EPA
legal office may be improper or no longer valid, the office shall so inform the
EPA legal office, which shall consider taking action under §2. 205(h).
(2) With respect to all information not known to be covered by such a
previous determination, the EPA office shall take action under paragraph (c) of
this section.
(c) DETERMINING EXISTENCE OF BUSINESS CONFIDENTIALITY CLAIMS.
(1) Whenever action under this paragraph is required by a paragraph
(b)(2) of this section, the EPA office shall examine the information and the
office's records to determine which businesses, if any, are affected businesses
(see §2. 201 (d), and Go determine which businesses if any, have asserted business
confidentiality claims which remain applicable to the information. If any busi-
ness is found to have asserted an applicable claim, the office shall take action
under paragraph (d) of this section with respect to each such claim.
(2)(i) If the examination conducted under paragraph (c)(1) of this
section discloses the existence of any business which, although it has not assert-
ed a claim, might be expected to assert a claim if it knew EPA proposed to disclose
the information, the EPA office shall contact a responsible official of each such
business to learn whether die business asserts a claim covering the information.
However, no such inquiry need be made to any business
(A) which failed to assert a claim covering the information when respond-
ing to an EPA request or danand, or supplying information on an EPA form, which
contained the substance of the statements prescribed by §2. 203 (a);
(B) which otherwise failed to assert a claim covering the information
after being informed by EPA that such failure could result in disclosure of the
information to the public; or
(C) which has otherwise waived or withdrawn a claim covering the informa-
tion.
(ii) If a request for release of the information under 5 U.S.C. 552 is
pending at the time inquiry is made under this paragraph (c)(2), the inquiry
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shall be made by telephone or equally prompt means, and the responsible official
contacted shall be informed that any claim the business wishes to assert must be
brought to the EPA office's attention no later than the close of business on the
third working day after such inquiry.
(iii) A record shall be kept of the results of any inquiry under this
paragraph (c)(2). If any business makes a claim covering the information, the
EPA office shall take further action under paragraph (d) of this section.
(3) If, after the examination under paragraph (c)(1) of this section, and
after any inquiry made under paragraph (c)(2) of this section, the EPA office knows
of no claim covering the information and the time for response to any inquiry has
passed, the information shall be treated for purposes of this subpart as not
entitled to confidential treatment.
(d) PRELIMINARY DETERMINATION. Whenever action under this paragraph is
required by paragraph (c)(1) or (c)(2) of this section on any business1s claim,
the EPA office shall make a determination with respect to each such claim. Each
determination shall be made after consideration of the provisions of §2.203, the
applicable substantive criteria in §2.208 or elsewhere in this subpart, and any
previously-issued determinations under this subpart which are applicable.
(1) If, in connection with any business's claim, the office determines that
the information may be entitled to confidential treatment, the office shall
(i) Furnish the notice of opportunity to submit comments prescribed by
paragraph (e) of this section to each business which is known to have asserted an
applicable claim and which has not previously been furnished such notice with
regard to information in question;
(ii) Furnish, to any person whose request for release of information is
pending under 5 U.S.C. 552, a determination (in accordance with §2.113) that the
information may be entitled to confidential treatment under this subpart and
5 U.S.C. 552(b)(4), that further inquiry by EPA pursuant to this subpart is
required before a final determination on the request can be issued, that the
person's request is therefore initially denied, and that after further inquiry a
final determination will be issued by an EPA legal office; and
(iii) Refer the matter to the appropriate EPA legal office, furnishing the
information required by paragraph (f) of this section after the time has elapsed
for receipt of comments from the affected business.
(2) If, in connection with all applicable claims, the office determines
that the information clearly is not entitled to confidential treatment, the
office shall take the actions required by §2.205(f). HDwever, if a business has
previously been furnished notice under §2.205(f) with respect to the same infor-
mation, no further notice need be furnished to that business. A copy of each
notice furnished to a business under this paragraph (d)(2) and §2.205(f) shall be
forwarded promptly to the appropriate EPA legal office.
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(e) NOTICE TO AFFECTED BUSINESSES; OPPORTUNITY TO COMMENT.
(1) Whenever required by paragraph (d)(1) of this section, the EPA office
shall promptly furnish each business a written notice stating that EPA is
determining under this subpart whether the information is entitled to confidential
treatment, and affording the business an opportunity to conment. The notice
shall be furnished by certified mail (return receipt requested), by personal
delivery, or by other means which allows verification of the fact and date of
receipt. The notice shall state the address of the office to which the business's
comments shall be addressed (the EPA office furnishing the notice, unless the
General Counsel has directed otherwise) , the time allowed for comments, and the
method for requesting a time extension under §2.205(b)(2). The notice shall
further state that EPA will construe a business1s failure to furnish timely
conments as a waiver of the business's claim.
(2) If action under this section is occasioned by a request for the infor-
mation under 5 U.S.C. 552, the period for comments shall be 15 working days after
the date of the business's receipt of the written notice. In other cases, the
EPA office shall establish a reasonable period for comments (not less than 15
working days after the business1s receipt of the written notice). The time
period for comments shall be considered met if the business's comments are post-
marked or hand delivered to the office designated in the notice by the date
specified. In all cases, the notice shall call the business's attention to the
provisions of §2.205(b).
(3) At or about the time the written notice is furnished, the EPA office
shall orally inform a responsible representative of the business (by telephone or
otherwise) that the business should expect to receive the written notice, and
shall request the business to contact the EPA office if the written notice has
not been received within a few days, so that EPA may furnish a duplicate notice.
(4) The written notice required by paragraph (e)(1) of this section shall
invite the business's comments on the following points (subject to paragraph
(e)(5) of this section ):
(i) The portions of the information which are alleged to be entitled to
confidential treatment;
(ii) The period of time for which confidential treatment is desired by the
business (e.g., until a certain date, until the occurrence of a specified event,
or permanently);
(iii) The purpose for which the information was furnished to EPA and the
approximate date of submission, if known;
(iv) Whether a business confidentiality claim accompanied the information
when it was received by EPA.
(v) Measures taken by the business to guard against undesired disclosure
of the information to others;
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(vi) The extent to which the information has been disclosed to others, and
the precautions taken in connection therewith;
(vii) Pertinent confidentiality determinations, if any, by EPA or other
Federal agencies, and a copy of any such determination, or reference to it, if
available;
(viii) Whether the business asserts that disclosure of the information
would be likely to result in substantial harmful effects on the business' com-
petitive position, and if so, what those harmful effects would be, why they
should be viewed as substantial, and an explanation of the casual relationship
between disclosure and such harmful effects; and
(ix) Whether the business asserts that the information is voluntarily
submitted information as defined in §2.201(i), and if so, whether and why
disclosure of the information would tend to lessen the availability to EPA of
similar information in the future.
(5) To the extent that the EPA office already possesses the relevant
facts, the notice need not solicit responses to the matters addressed in para-
graphs (e)(4)(i) through (e)(4)(ix) of this section, although the notice shall
request confirmation of EPA's understanding of such facts where appropriate.
(6) The notice shall rfefer to §2.205(c) and shall include the statement
prescribed by §2.203(a).
(f) MATERIALS TO BE FURNISHED TO EPA LEGAL OFFICE. When a matter is
referred to an EPA legal office under paragraph (d)(1) of this section, the EPA
office taking action under this section shall forward promptly to the EPA legal
office the following items:
(1) A copy of the information in question, or (where the quantity or
form of the information makes forwarding a copy of the information impractical)
representative samples, a description of the information, or both;
(2) A description of the circumstances and date of EPA's acquisition of
the information;
(3) The name, address, and telephone number of the EPA employee(s) most
familiar with the information;
*
(4) The name, address and telephone number of each business which asserts
an applicable business confidentiality claim;
(5) A copy of each applicable claim (or the record of the assertion of the
claim), and a description of when and how each claim was asserted;
(6) Comments concerning each business's compliance or noncompliance with
applicable requirements of §2.203;
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(7) A copy of any request for release of the information pending under 5
U.S.C. 552;
(8) A copy of the business's comments on whether the information is en-
titled to confidential treatment;
(9) The office's comments concerning the appropriate substantive criteria
under this subpart, and information the office possesses concerning the informa-
tion's entitlement to confidential treatment; and
(10) Copies of other correspondence or memoranda which pertain to the
matter.
§2.205 Final confidentiality determination by EPA legal office.
(a) Pole of EPA legal office.
(1) The appropriate EPA legal office (see paragraph (i) of this section)
is responsible for making the final administrative determination of whether or
not business information covered by a business confidentiality claim is entitled
to confidential treatment under this subpart.
(2) When a request for release of the information under 5 U.S.C. 552 is
pending, the EPA legal office's determination shall serve as the final determina-
tion on appeal from an initial denial of the request.
(i) If the initial denial was issued under §2.204(b)(1), a final deter-
mination by the EPA legal office is necessary only if the requestor has actually
filed an appeal.
(ii) If the initial denial was issued under §2.204(d)(1), however, the EPA
legal office shall issue a final determination in every case, unless the request
has been withdrawn. (Initial denials under §2.204(d)(l) are of a procedural
nature to allow further inquiry into the merits of the matter, and a requestor is
entitled to a decision on the merits.) If an appeal from such a denial has not
been received by .the EPA Freedom of Information Officer on the tenth working day
after issuance of the denial, the matter shall be handled as if an appeal had
been received on that day, for purposes of establishing a schedule for issuance
of an appeal decision under §2.117 of this part.
(b) COMMENT PERIOD; EXTENSIONS; UNTIMELINESS AS WAIVER OF CLAIM.
(1) Each business which has been furnished the notice and opportunity to
coranent prescribed by §2.204(d)(1) and §2.204(e) shall furnish its comments to
the office specified in the notice in time to be postmarked or hand delivered to
that office not later than the date specified in the notice (or the date estab-
lished in lieu thereof under this section).
(2) The period for submission of comments may be extended if, before the
comments are due, a request for an extension of the comment period is made by the
business and approved by the EPA legal office. Except in extraordinary circum-
stances, the EPA legal office will not approve such an extension without the
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consent of any person whose request for release of the information under 5 U.S.C.
552 is pending.
(3) The period for submission of comments by a business may be shortened
in the manner described in paragraph (g) of this section.
(4) If a business's comments have not been received by the specified EPA
office by the date they are due (including any approved extension), that office
shall promptly inquire whether the business has complied with paragraph (b)(1)
of this section. If the business has complied with paragraph (b)(l) but the
comments have been lost in transmission, duplicate comments shall be requested.
(c) CONFIDENTIAL TREATMENT OF COWENTS FROM BUSINESS. If information
submitted to EPA by a business as part of its comments under this section pertains
to the business1s claim, is not otherwise possessed by EPA, and is marked when
received in accordance with §2.203(b), it will be regarded by EPA as entitled to
confidential treatment and will not be disclosed by EPA without the business's
consent, unless its disclosure is duly ordered by a Federal court, notwithstand-
ing other provisions of this subpart to the contrary.
(d) TYPES OF FINAL DETERMINATIONS; MATTERS TO BE CONSIDERED.
(1) If the EPA legal office finds that a business has failed to furnish
comments under paragraph (b) of this section by the specified due date, it shall
determine that the business has waived its claim. If after application of the
preceding sentence, no claim applies to the information the office shall determine
that the.information is not entitled to confidential treatment under this subpart
and, subject to §2.210, is available to the public.
(2) In all other cases, the EPA legal office shall consider each business's
claim and comments, the various provisions of this subpart, any previously-issued
determinations under this subpart which are pertinent, the materials furnished it
under S2.204(f), and such other materials as it finds appropriate. With respect
to each claim, the office shall determine whether or not the information is
entitled to confidential treatment for the benefit of the business that asserted
the claim, and the period of any such entitlement (e.g., until a certain date,
until the occurrence of a specified event, or permanently), and shall take further
action under paragraph (e) or (f) of this section, as appropriate.
(3) Whenever the claims of two or more businesses apply to the same infor-
mation the EPA legal office shall take action appropriate under the particular
circunstances to protect the interests of all persons concerned (including any
person whose request for the information is pending under 5 U.S.C. 552).
(e) DETERMINATION THAT INFORMATION IS ENTITLED TO CONFIDENTIAL TREATMENT.
If the EPA legal office determines that the information is entitled to confidential
treatment for the full period requested by the business which made the claim, EPA
shall maintain the information in confidence for such period, subject to paragraph
(h) of this section §2.209, and the other provisions of this subpart which
authorize disclosure in specified circumstances, and the office shall so inform
the business. If any person's request for the release of the information is then
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pending under 5 U.S.C. 552, the EPA legal office shall issue a final
determination denying that request.
(f) DETERMINATION THAT INFORMATION IS NOT ENTITLED TO CONFIDENTIAL
TREATMENT; NOTICE; WAITING PERIOD; RELEASE OF INFORMATION.
(1) Notice of denial (or partial denial) of a business confidentiality
claim, in the form prescribed by paragraph (f)(2) of this section, shall be
furnished
(i) By the EPA office taking action under §2.204, to each business on
behalf of which a claim has been made, whenever §2.204(d)(2) requires such notice;
and
(ii) By the EPA legal office taking action under this section, to each
business which has asserted a claim applicable to the.information and which has
furnished timely comments under paragraph (b) of this section, whenever the EPA
legal office determines that the information is not entitled to confidential
treatment under this subpart for the benefit of the.business, or determines that
the period of any entitlement to confidential treatment is shorter than that
requested by the business.
(2) The notice prescribed by paragraph (f)(1) of this section shall be
written, and shall be furnished by certified mail (return receipt requested), by
personal delivery, or by other means which allows verification of the fact of
receipt and the date of receipt. The notice shall state the basis for the
determination, that it constitutes final agency action concerning the business
confidentiality claim, and that such final agency action may be subject to judicial
review under chapter 7 of title 5, United States Code. With respect to EPA's
implementation of the determination, the notice shall state that (subject to
§2.210) EPA will make the information available to the public on the tenth working
day after the date of the business's receipt of the written notice (or on such
later date as is established in lieu thereof by the EPA legal office under para-
graph (f)(3) of this section), unless the EPA legal office has first been noti-
fied of the business's commencement of an action in a Federal court to obtain
judicial review of the determination, and to obtain preliminary injunctive
relief against disclosure. The notice shall further state that if such an action
is timely commenced, EPA may nonetheless make the information available to the
public (in the absence of an order by the court to the contrary), once the court
has denied a motion for a preliminary injunction in the action or has otherwise
upheld the EPA determination, or whenever it appears to the EPA legal office,
after reasonable notice to the business, that the business is not taking appro-
priate measures to obtain a speedy resolution of the action. If the information
has been found to be temporarily entitled to confidential treatment, the notice
shall further state that the information will not be disclosed prior to the end
of the period of such temporary entitlement to confidential treatment.
(3) The period established in a notice under paragraph (f)(2) of this
section for commencement of an action to obtain judicial review may be extended
if, before the expiration of such period, a request for an extension is made by
the business and approved by the EPA legal office. Except in extraordinary
circumstances, the EPA legal office will not approve such an extension without
the consent of any person whose request for release of the information under
5 U.S.C. is pending.
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(4) After the expiration of any period of temporary entitlement to confi-
dential treatment, a determination under this paragraph (f) shall be implenented
by the EPA legal office by making the information available to the public (in the
absence of a court order prohibiting disclosure) whenever --
(i) The period provided for commencement by a business of an action to
obtain judicial review of the determination has expired without notice to the EPA
legal office of commencement of such an action;
(ii) The court, in a timely-commenced action, has denied the business'
motion for a preliminary injunction, or has otherwise upheld EPA determination;
or
(iii) The EPA legal office, after reasonable notice has been provided to
the business, finds that the business is not taking appropriate measures to obtain
a speedy resolution of the timely-commenced action.
(5) Any person whose request for release of the information under
5 U.S.C. 552 is pending at the time notice is given under paragraph (f)(2) of
this section shall be furnished a determination under 5 U.S.C. 552 stating the
circumstances under which the information will be released.
(g) EMERGENCY SIUTATIONS. If the General Counsel finds that disclosure
of information covered by a claim would be helpful in alleviatirtg a situation
posing an imminent and substantial danger to public health, or safety, he may
prescribe and make .known to interested persons such shorter comment period
(paragraph (b) of this section), post-determination waiting period (paragraph
(f) of this section), or both, as he finds necessary under the circumstances.
(h) MODIFICATION OF PRIOR DETERMINATIONS. A determination that informa-
tion is entitled to confidential treatment for the benefit of a business, made
under this subpart by an EPA legal office, shall continue in effect in accordance
with its terms until an EPA legal office taking action under this section, or
under §2.206 or §2.207, issues a final determination stating that the earlier
determination no longer describes correctly the information's entitlement to
confidential treatment because of change in the applicable law, newly-discovered
or changed facts, or because the earlier determination was clearly erroneous. If
an EPA legal office tentatively concludes that such an earlier determination is
of questionable validity, it shall so inform the business, and shall afford the
business an opportunity to furnish comments on pertinent issues in the manner
described by §2.204(e) and paragraph (b) of this section. If, after consideration
of any timely comments submitted by the business, the EPA legal office makes a
revised final determination that the information is not entitled to confidential
treatment, or that the period of entitlement to such treatment will end sooner
than it would have ended under the earlier determination, the office will follow
the procedure described in paragraph (f) of this section. Determination under
this section may be made only by, or with the concurrence of, the General Counsel.
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(i) DELEGATION AND REDELEGATION OF AUTHORITY. Unless the General Counsel
otherwise directs, or this subpart otherwise specifically provides, determinations
and actions required by this subpart to be made or taken by an EPA legal office
shall be made or taken by the appropriate Regional Counsel whenever the EPA office
taking action under §2.204 or §2.206(b) is under the supervision of a Regional
Administrator, and by the General Counsel in all other cases. The General Counsel
may redelegate any or all of his authority under this subpart to any attorney
employed by EPA on a fulltime basis under the General Counsel's supervision. A
Regional Counsel may redelegate any or all of his authority under this subpart
to any attorney employed by EPA on a full-time basis under the Regional Counsel's
supervision.
§2.206 Advance confidentiality determinations.
(a) An advance determination under this section may be issued by an EPA
legal office if
(1) EPA has requested or dananded that a business furnish business infor-
mation to EPA;
(2) The business asserts that the information, if submitted, would con-
stitute voluntarily submitted information under §2.201(i);
(3) The business will voluntarily submit the information for use by EPA
only if EPA first determines that the information is entitled to confidential
treatment under this subpart; and
(4) The EPA office which desires submission of the information has re-
quested that the EPA legal office issue a determination under this section.
(b) The EPA office requesting an advance determination under this section
shall
(1) Arrange to have the business furnish directly to the EPA legal office
a copy of the information (or, where feasible, a description of the nature of the
information sufficient to allow a determination to be made), as well as the
business's comnents concerning the matters addressed in §2.204(e)(4), excluding,
however, matters addressed in §2.204(e)(4)(iii) and (e)(4)(iv); and
(2) Furnish to the EPA legal office the materials referred to in
S2.204(f)(3), (f)(7), (f)(8), and (f)(9).
(c) In making a determination under this section, the EPA legal office
shall first determine whether or not the information would constitute voluntarily
submitted information under §2.201(i). If the information would constitute
voluntarily submitted information, the legal office shall further determine
whether the information is entitled to confidential treatment.
(d) If the EPA legal office determines that the information would not con-
stitute voluntarily submitted information, or determines that it would constitute
voluntarily submitted information but would not be entitled to confidential
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treatment, it shall so inform the business and the EPA office which requested the
determination, stating the basis of the determination, and shall return to the
business all copies of the information which it may have received from the busi-
ness (except that if a request under 5 U.S.C. 552 for release of the information
is received while the EPA legal office is in possession of the information, the
legal office shall retain a copy of the information, but shall not disclose it
unless ordered by a Federal court to do so). The legal office shall not disclose
the information to any other EPA office or employee and shall not use the
information for any purpose except the determination under this section, unless
otherwise directed by a Federal court.
(e) If the EPA legal office determines that the information would consti-
tute voluntarily submitted information and that it is entitled to confidential
treatment, it shall so inform the EPA office which requested the determination
and the business which submitted it, and shall forward the information to the EPA
office which requested the determination.
§2.207 Class determinations.
(a) The General Counsel may make and issue a class determination under
this section if he finds that
(1) EPA possesses, or is obtaining, related items of business information;
(2) One or more characteristics common to all such items of information
will necessarily result in identical treatment for each such item under one or
more of the provisions in this subpart, and that it is therefore proper to treat
all such items as a class for one or more purposes under this subpart; and
(3) A class determination would serve a useful purpose.
(b) A class determination shall clearly identify the class of information
to which it pertains.
(c) A class determination may state that all of the information in the
class
(1) Is, or is not, voluntarily submitted information under §2.201(i);
(2) Is, or is not, governed by a particular section of this subpart, or
by a particular set of substantive criteria under this eubpart;
(3) Fails to satisfy one or more of the applicable substantive criteria,
and is therefore ineligible for confidential treatment;
(4) Satisfies one or more of the applicable substantive criteria; or
(5) Satisfies one or more of the applicable substantive criteria during
a certain period, but will be ineligible for confidential treatment thereafter.
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(d) The purpose of a class determination is simply to make known the
Agency's position regarding the manner in which information within the class
will be treated under one or more of the provisions of this subpart. Accordingly,
the notice of opportunity to submit comments referred to in §2.204(d)(1)(ii) and
§2.205(b) /and the list of materials required to be furnished to the EPA legal
office under §2.204(d) (1)(iii), may be modified to reflect the fact that the class
determination has made unnecessary the submission of materials pertinent to one
or more issues. Moreover, in appropriate cases, action based on the class deter-
mination may be taken under §2.204(b)(1), §2.204(d), §2.205(d), or §2.206.
However, the existence of a class determination shall not, of itself, affect any
right a business may have to receive any notice under §2.204(d)(2) or §2.205(f).
§2.208 Substantive criteria for use in confidentiality determinations.
Determinations issued under §§2.204 through 2.207 shall hold that business
information is entitled to confidential treatment for the benefit of a particular
business if
(a) The business has asserted a business confidentiality claim which has
not expired by its terms, nor been waived nor withdrawn;
(b) The business has satisfactorily shown that it has taken reasonable
measures to protect the confidentiality of the information, and that it intends
to continue to take such measures;
(c) The information is not, and has not been, reasonably obtainable with-
out the business's consent by other persons (other than governmental bodies) by
use of legitimate means (other than discovery based on a showing of special need
in a judicial or quasi-judicial proceeding);
(d) No statute specifically requires disclosure of the information; and
(e) Either --
(1) The business has satisfactorily shown that disclosure of the informa-
tion is likely to cause substantial harm to the business's competitive position;
or
(2) The information is voluntarily submitted information (see §2.201 (i)),
and its disclosure would be likely to impair the Government's ability to obtain
necessary information in the future.
§2.209 Disclosure in special circumstances.
(a) GENERAL. Information which under this subpart, is not available to
the public may nonetheless be disclosed to the persons, and in the circumstances,
described by paragraphs (b) through (g) of this section. (This section shall not
be construed to restrict the disclosure of information which has been determined
to be available to the public, ttowever, business information for which a claim
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of confidentiality has been asserted shall be treated as being entitled to confi-
dential treatment until there has been a determination in accordance with the
procedures of this subpart that the information is not entitled to confidential
treatment).
(b) Disclosure to Congress or the Comptroller General.
(1) Upon receipt of a written request by the Speaker of the House, Presi-
dent of the Senate, chairman of a committee or subcommittee, or the Comptroller
General, as appropriate, EPA will disclose business information to either House of
Congress, to a committee or subcommittee of Congress, or to the Comptroller General,
unless a statute forbids such disclosure.
(2) If the request is for business information claimed as confidential or
determined to be confidential, the EPA office processing the request shall provide
notice to each affected business of the type of information disclosed and to whom
it is disclosed. Notice shall be given at least ten days prior to disclosure,
except where it is not possible to provide notice ten days in advance of any date
established by the requesting body for responding to the request. Where ten days
advance notice cannot be given, as much advance notice as possible shall be pro-
vided. Where notice cannot be given before the date established by the request-
ing body for responding to the request, notice shall be given as promptly after
disclosure as possible. Such notice may be given by notice published in the
Federal Register or by letter sent by certified mail, return receipt requested,
or telegram. However, if the requesting body asks in writing that no notice
under this subsection be given, EPA will give no notice.
(3) At the time EPA discloses the business information, EPA will inform
the requesting body of any unresolved business confidentiality claim known to
cover the information and of any determination under this subpart that the
information is entitled to confidential treatment.
(c) DISCLOSURE TO OTHER FEDERAL AGENCIES. EPA may disclose business
information to another Federal agency if
(1) EPA receives a written request for disclosures of the information
from a duly authorized officer or employee of the other agency or on the initia-
tive of EPA when such disclosure is necessary to enable the other agency to carry
out a function on behalf of EPA;
(2) The request, if any, sets forth the official purpose for which the
information is needed;
(3) When the information has been claimed as confidential or has been
determined to be confidential, the responsible EPA office provides notice to each
affected business of the type of information to be disclosed and to whom it is to
be disclosed. At the discretion of the office, such notice may be given by
notice published in the Federal Register at least 10 days prior to disclosure,
or by letter sent by certified mail return receipt requested or telegram either
of which must be received by the affected business at least 10 days prior to
disclosure. However, no notice shall be required when EPA furnishes business
information to another Federal agency to perform a function on behalf of EPA,
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including but not limited to
(i) Disclosure to the Department of Justice for purposes of investigation
or prosecution of civil or criminal violations of Federal law related to EPA
activities;
(ii) Disclosure to the Department of Justice for purposes of representing
EPA in any matter; or
(iii) Disclosure to any Federal agency for purposes of performing an EPA
statutory function under an interagency agreement.
(4) EPA notifies the other agency of any unresolved business confiden-
tiality claim covering the information and of any determination under this subpart
that the information is entitled to confidential treatment, and that further
other disclosure of the' information may be a violation of 18 U.S.C. 1905; and
(5) The other agency agrees in writing not to disclose further any infor-
mation designated as confidential unless
(i) The other agency has statutory authority both to compel production of
the information and to make the proposed disclosure, and the other agency has,
prior to disclosure of the information to anyone other than its officers and
employees, furnished to each affected business at least the same notice to which
the affected business would be entitled under this subpart;
(ii) The other agency has obtained the consent of each affected business
to the proposed disclosure; or
(iii) The other agency has obtained a written statement from EPA General
Counsel or an EPA Regional Counsel that disclosure of the information would be
proper under this subpart.
(d) COURT-ORDERED DISCLOSURE. EPA may disclose any business information
in any manner and to the extent ordered by a Federal court. Where possible, and
when not in violation of a specific directive from the court, the EPA office
disclosing information claimed as confidential or determined to be confidential
shall provide as much advance notice as possible to each affected business of the
type of information to be disclosed and to whom it is to be disclosed unless the
affected business has actual notice of the court order. At the discretion of the
office, subject to any restrictions by the court, such notice may be given by
notice in the Federal Register, letter sent by certified mail, return receipt
requested, or telegram.
(e) DISCLOSURE WITHIN'EPA. An EPA office, officer, or employee may
disclose any business information to another EPA office, officer, or employee with
an official need for the information.
(f) DISCLOSURE WITH CONSENT OF BUSINESS. EPA may disclose any business
information to any person if EPA has obtained the prior consent of each affected
business to such disclosure.
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(g) RECORD OF DISCLOSURES TO BE MAINTAINED. Each EPA office which
discloses information to Congress, a committee or subcommittee of Congress, the
Comptroller General, or another Federal agency under the authority of paragraph
(b) or (c) of this section, shall maintain a record of the fact of such disclosure
for a period of not less than 36 months after such disclosure. Such a record,
which may be in the form of a log, shall show the name of the affected businesses,
the date of disclosure, the person or body to whom disclosure was made, and a
description of the information disclosed.
§2.210 Nondisclosure for reasons other than business confidentiality or where
disclosure is prohibited by other statute.
(a) Information which is not entitled to confidential treatment under this
subpart shall be made available to the public (using the procedures set forth in
§§2.2)4 and 2.205) if its release is requested under 5 U.S.C. 552, unless EPA
determines (under subpart A of this part) that, for reasons other than reasons of
business confidentiality, the information is exempt from mandatory disclosure and
cannot or should not be made available to the public. My such determination
under subpart A shall be coordinated with actions taken under this subpart for
the purpose of avoiding delay in responding to requests under 5 U.S.C. 552.
(b) Notwithstanding any other provision of this subpart, if any statute
not cited in this subpart appears to require EPA to give confidential treatment
to any business information for reasons of business confidentiality, the matter
shall be referred promptly to an EPA legal office for resolution. Pending reso-
lution, such information shall be treated as if it were entitled to confidential
treatment.
§2.211 Safeguarding of business information; penalty for wrongful disclosure.
(a) No EPA officer or employee may disclose, or use for his or her private
gain or advantage, any business information which came into his or her possession,
or to which he or she gained access, by virtue of his or her official position
or employment, except as authorized by this subpart.
(b) Each EPA officer or employee who has custody or possession of business
information shall take appropriate measures to properly safeguard such information
and to protect against its improper disclosure.
(c) Violation of paragraphs (a) or (b) of this section shall constitute
grounds for dismissal, suspension, fine, or other adverse personnel action. Will-
ful violation of paragraph (a) of this section may result in criminal prosecution
under 18 U.S.C. 1905 or other applicable statute.
(d) Each contractor or subcontractor with EPA, and each employee of such
contractor or subcontractor, who is furnished business information by EPA under
§§2.301(h), 2.302(h), 2.304(h), 2.305(h) , 2.306(j), 2.307(h), 2.308(i),or
2.310(i) shall use or disclose that information only as permitted by the contract
or subcontract under which the information was furnished. Contractors or sub-
contractors shall take steps to properly safeguard business information including
following any security procedures for handling and safeguarding business inforraa-
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tion which are contained in any manuals, procedures, regulations, or guidelines
provided by EPA. My violation of this paragraph shall constitute grounds for
suspension or debarment of the contractor or subcontractor in question.
A willful violation of this paragraph may result in criminal prosecution.
§2.212 Establishment of control offices for categories of business information.
(a) The Administrator, by order, may establish one or more mutually
exclusive categories of business information, and may designate for each such
category an EPA office (hereinafter referred to as a "control office") which
shall have responsibility for taking actions (other than actions required
to be taken by an EPA legal office) with respect to all information within such
category.
(b) If a control office has been assigned responsibility for a category of
business information, no other EPA office, officer, or employee may make available
to the public (or otherwise disclose to persons other than EPA officers and
employees) any information in that category without first obtaining the concurrence
of the control office. Requests under 5 U.S.C. 552 for release of such information
shall be referred to the control office.
(c) A control office shall take actions and make the determinations
required by §2.204 with respect to all information in any category for which the
control office has been assigned responsibility.
(d) A control office shall maintain a record of the following, with respect
to items of business information in categories for which it has been assigned
responsibility;
(1) Business confidentiality claims;
(2) Comments submitted in support of claims;
(3) Waivers and withdrawals of claims;
(4) Actions and determinations by EPA under this subpart;
(5) Actions by Federal courts; and
(6) Related information concerning business confidentiality.
§2.213 Designation by business of addressee for notices and inquiries.
(a) A business which wishes to designate a person or office as the proper
addressee of communications from EPA to the business under this subpart may do so
by furnishing in writing to the Freedom of Information Officer (A-101), Environ-
mental Protection Agency, 401 M St. S.W., Washington D.C. 20460, the following
information: the name and address of business making the designation; the name,
address, and telephone number of the designated person or office; and a request
that EPA inquiries and communications (oral and written) under this subpart,
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including inquiries and notices which require reply within deadlines if the
business is to avoid waiver of its rights under this subpart, be furnished to the
designee pursuant to this section. Only one person or office may serve at any
one time as a business"s designee under this subpart.
(b) If a business has named a designee under this section, the following
EPA inquiries and notices to the business shall be addressed to the designee;
(1) Inquiries concerning a business's desire to assert a business confi-
dentiality claim, under §2. 204(c) (2)(i) (A);
(2) Notices affording opportunity to substantiate confidentiality claims,
under §2.204(d)(1) and §2. 204(e);
(3) Inquiries concerning comments, under §2. 205(b) (4);
(4) Notices of denial of confidential treatment and proposed disclosure of
information, under § 2. 205(f) ;
(5) Notices concerning shortened comment and/or waiting periods under
§2.205(g);
(6) Notices concerning modifications or overrulings of prior determina-
tions , under § 2. 205 (h);
(7) Notices to affected business under §§2.301(g) and 2.301(h) and analo-
gous provisions in §§2.302, 2.303, 2.304, 2.305, 2.306, 2.307, and 2.308; and
(8) Notices to affected businesses under §2.209.
(c) The Freedom of Information Officer shall, as quickly as possible,
notify all EPA offices that may possess information submitted by the business to
EPA, the Regional Freedom of Information Offices, the Office of General Counsel,
and the offices of Regional Counsel of any designation received under this
section. Businesses making designations under this section should bear in mind
that several working days may be required for dissemination of this information
within EPA and that some EPA offices may not receive notice of such designations.
§2.214 Defense of Freedom of Information Act suits; participation by affected
business.
«
(a) In making final confidentiality determinations under this subpart,
the EPA legal office relies to a large extent upon the information furnished by
the affected business to substantiate its claim of confidentiality. The EPA
legal office may be unable to verify the accuracy of much of the information
submitted by the affected business.
(b) If the EPA legal office makes a final confidentiality determination
under this subpart that certain business information is entitled to confidential
treatment, and EPA is sued by a requester under the Freedom of Information Act
for disclosure of that information, EPA will:
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(1) Notify each affected business of the suit within 10 days after service
of the complaint upon EPA;
(2) Where necessary to preparation of EPA's defense, call upon each affected
business to furnish assistance; and
(3) Not oppose a motion by any affected business to intervene as a party to
the suit under rule 24(b) of the Federal Rules of Civil Procedure.
(c) EPA will defend its final confidentiality determination, but EPA expects
the affected business to cooperate to the fullest extent possible in this defense.
§2,215 Confidentiality agreements.
(a) No EPA officer, employee, contractor, or subcontractor shall enter into
any agreement with any affected business to keep business information confidential
unless such agreement is consistent with this subpart. No EPA officer, employee,
contractor, or subcontractor shall promise any affected business that business
information will be kept confidential unless the promise is consistent with this
subpart.
(b) If an EPA office has requested information from a State, local, or
Federal agency and the agency refuses to furnish the information to EPA because
the information is or may constitute confidential business information, the EPA
office may enter into an agreement with the agency to keep the information
confidential, notwithstanding the provisions of this subpart. However, no such
agreement shall be made unless the General Counsel determines that the agreement
Is necessary and proper.
(c) To determine that an agreement proposed under paragraph (b) of this
section is necessary, the General Counsel must find:
(1) The EPA office requesting the information needs the information to
perform its functions;
(2) The agency will not furnish the information to EPA without an agree-
ment by EPA to keep the information confidential; and
(3) Either:
(i) EPA has no statutory power to compel submission of the information
directly from the affected business, or
(ii) While EPA has statutory power to compel submission of the information
directly from the affected business, compelling submission of the information
directly from the business would --
(A) Require time in excess of that available to the EPA office to perform
its necessary work with the information,
(B) Duplicate information already collected by the other agency and overly
burden the affected business, or
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(C) Overly burden the resources of EPA.
(d) To determine that an agreement proposed under paragraph (b) of this
section is proper, the General Counsel must find that the agreement states
(1) The purpose for which the information is required by EPA;
(2) The conditions under which the agency will furnish the information to
EPA;
(3) The information subject to the agreement;
(4) That the agreement does not cover information acquired by EPA from
another source;
(5) The manner in which EPA will treat the information; and
(6) That EPA will treat the information in accordance with the agreement
subject to an order of a Federal court to disclose the information.
(e) EPA will treat any information acquired pursuant to an agreement under
paragraph (b) of this section in accordance with the procedures of this subpart
except where the agreement specifies otherwise.
§2.216 - §2.300 [Reserved]
§2.301 Special rules governing certain information obtained under the Clean
Air Act.
(a) Definitions. For the purpose of this section:
(1) "Act" means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
(2)(i) "Emission data" means, with reference to any source of emission of
any substance into the air
(A) Information necessary to determine the identity, amount, frequency,
concentration, or other characteristics (to the extent related to air quality) of
any emission which has been emitted by the source (or of any pollutant resulting
from any emission by the source), or any combination of the foregoing;
(B) Information necessary to determine the identity, amount, frequency,
concentration, or other characteristics (to extent related to air quality) of
the emissions which, under an applicable standard or limitation, the source was
authorized to emit (including, to the extent necessary for such purposes, a
description of the manner or rate of operation of the source); and
(C) A general description of the location and/or nature of the source to
the extent necessary to identify the source and to distinguish it from the other
sources (including, to the extent necessary for such purposes, a description of
the device, installation, or operation constituting the source).
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(ii) Notwithstanding paragraph (a)(2)(i) of this section, the following
information shall be considered to be "emission data" only to the extent necessary
to allow EPA to disclose publicly that a source is (or is not) in compliance with
an applicable standard or limitation, or to allow EPA to demonstrate the feasibil-
ity, practicability, or attainability (or lack thereof) of an existing or proposed
standard or limitation:
(A) Information concerning research, or the results of research, on any
project, method, device or installation (or any component thereof) which was
produced, developed, installed, and used only for research purposes; and
(B) Information concerning any product, method, device, or installation (or
any component thereof) designed and intended to be marketed or used commercially
but not yet so marketed or used.
(3) "Standard or limitation" means any emission standard or limitation
established or publicly proposed pursuant to the Act or pursuant to any regulation
under the Act.
(4) "Proceeding" means any rulemaking, adjudication, or licensing conducted
by EPA under the Act or under regulations which implement the Act, except for
determinations under this subpart.
(5) "Manufacturer" has the meaning given it in section 216(i) of the Act,
42 U.S.C. 7550(1).
(b) APPLICABILITY, (1) This section applies to business information which
was
(i) Provided or obtained under section 114 of the Act, 42 U.S.C. 7414,
by the owner or operator of any stationary source, for the purpose (A) of
developing or assisting in the development of any implementation plan under
section 110 or lll(d) of the Act, 42 U.S.C. 7410, 7411(d), any standard of per-
formance under section 111 of the Act, 42 U.S.C. 7411, or any emission standard
under section 112 of the Act, 42 U.S.C. 7412, (B) of determining whether any
person is in violation of any such standard or any requirement of such a plan, or
(C) of carrying out any provision of the Act (except a provision of Part II of
the Act with respect to a manufacturer of new motor vehicles or new motor vehicle
engines);
(ii) Provided or obtained under section 208 of the Act, 42 U.S.C. 7542,
for the purpose of enabling the Administrator to determine whether a manufacturer
has acted or is acting in compliance with the Act and regulations under the Act,
or provided or obtained under section 206(c) of the Act, 42 U.S.C. 7525(c); or
(iii) Provided in response to a subpoena for the production of papers,
books, or documents issued under the authority of section 307(a) of the Act,
42 U.S.C. 7607(a).
(2) Information will be considered to have been provided or obtained under
section 114 of the Act if it was provided in response to a request by EPA made
for any of the purposes stated in section 114,-or if its submission could have
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been required under section 114, regardless of whether section 114 was cited as
the authority for any request for the information, whether an order to provide
the information was issued under section 113(a) of the Act, 42 U.S.C. 7413(a),
whether an action was brought under section 113(b) of the Act, 42 U.S.C. 7413(b),
or whether the information was provided directly to EPA or through some third
person.
(3) Information will be considered to have been provided or obtained
under section 208 of the Act if it was provided in response to a request by EPA
made for any of the purposes stated in section 208, or if its submission could
have been required under section 208, regardless of whether section 208 was cited
as the authority for any request for the information, whether an action was
brought under section 204 of the Act, 42 U.S.C. 7523, or whether the information
was provided directly to EPA or through some third person.
(4) Information will be considered to have been provided or obtained
under section 206(c) of the Act if it was provided in response to a request
by EPA made for any of the purposes stated in section 206(c) , or if its sub-
mission could have been required under section 206(c) regardless of whether
section 206(c) was cited as authority for any request for the information,
whether an action was brought under section 204 of the Act, 42 U.S.C. 7523,
or whether the information was provided directly to EPA or through some third
person.
(5) Information will be considered to have been provided or obtained under
section 307(a) of the Act if it was provided in response to a subpoena issued
under section 307(a), or if its production could have been required by subpoena
under section 307(a), regardless of whether section 307(a) was cited as the
authority for any request for the information, whether a subpoena was issued by
EPA, whether a court issued an order under section 307(a), or whether the infor-
mation was provided directly to EPA or through some third person.
(6) This section specifically does not apply to information obtained under
section 115(j) or 211(b) of the Act, 42 U.S.C. 7415(j), 7545(b).
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201 through 2.207,
§2.209 and §§2.211 through 2.215 apply without change to information to which
this section applies.
(d) [Reserved]
(e) SUBSTANTIVE CRITERIA FOR USE IN CONFIDENTIALITY DETERMINATIONS.
Section 2.208 applies to information to which this section applies, except that
information which is emission data or a standard or limitation is not eligible
for confidential treatment. No information to which this section applies is
voluntarily submitted information.
(f) AVAILABILITY OF INFORMATION NOT ENTITLED TO CONFIDENTIAL TREATMENT.
Section 2.210 does not apply to information to which this section applies. Emission
data, standards or limitations, and any other information provided under section
114 or 208 of the Act which is determined under this subpart not to be entitled
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to confidential treatment, shall be available to the public notwithstanding
any other provision of this part. Hnission data and standards or limitations
provided in response to a subpoena issued under section 307(a) of the Act shall
be available to the public notwithstanding any other provision of this part.
Information (other than emission data and standards or limitations) provided in
response to a subpoena issued under 307(a) of the Act, which is determined under
this subpart not to be entitled to confidential treatment, shall be available to
the public, unless EPA determines that the information is exempt from mandatory
disclosure under 5 U.S.C. 552(b) for reasons other than reasons of business
confidentiality and cannot or should not be made available to the public.
(g) DISCLOSURE OF INFORMATION RELEVANT TO A PROCEEDING.
(1) Under sections 114, 208 and 307 of the Act, any information to which
this section applies may be released by EPA because of the relevance of the
information to a proceeding, notwithstanding the fact that the information
otherwise might be entitled to confidential treatment under this subpart. Release
of information because of its relevance to a proceeding shall be made only in
accordance with this paragraph (g).
(2) In connection with any proceeding other than a proceeding involving
a decision by a presiding officer after an evidentiary or adjudicatory hearing,
information to which this section applies which may be entitled to confidential
treatment may be made available to the public under this paragraph (g)(2). No
information shall be made available to the public under this paragraph (g)(2)
until any affected business has been informed that EPA is considering making, the
information available to the public under this paragraph (g)(2) in connection
with an identified proceeding, and has afforded the business a reasonable period
for comment (such notice and opportunity to comment may be afforded in connection
with the notice prescribed by §2.204(d)(1) and §2.204(e)). Information may be
made available to the public under this paragraph (g)(2) only if, after consider-
ation of any timely comments submitted by the business, the General Counsel
determines that the information is relevant to the subject of the proceeding and
the EPA office conducting the proceeding determines that the public interest
would be served by making the information available to the public. Any affected
business shall be given at least 5 days notice by the General Counsel prior to
making the information available to the public.
(3) In connection with any proceeding involving a decision by a presiding
officer after an evidentiary or adjudicatory hearing, information to which this
section applies which may be entitled confidential treatment may be made available
to the public, or to one or more parties of record to the proceeding, upon EPA's
initiative, under this paragraph(g)(3). An EPA office proposing disclosure of
information under this paragraph (g)(3), shall so notify the presiding officer
in writing. Upon receipt of such notification, the presiding officer shall notify
each affected business that disclosure under this paragraph (g)(3) has been
proposed, and shall afford each such business a period for comment found by the
presiding officer to be reasonable under the circunstances. Information may be
disclosed under this paragraph (g)(3) only if, after consideration of any timely
comments submitted by the business, the EPA office determines in writing that,
for reasons directly associated with the conduct of the proceeding, the contem-
plated disclosure would serve the public interest, and the presiding officer
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determines in writing that the information is relevant to a matter in contro-
versy in the proceeding. The presiding officer may condition disclosure of
the information to a party of record on the making of such protective arrangements
and commitments as he finds to be warranted. Disclosure to one or more parties
of record, under protective arrangements or commitments, shall not, of itself,
affect the eligibility of information for confidential treatment under the other
provisions of this subpart.
Any affected business shall be given at least 5 days notice by the presiding
officer prior to making the information available to the public or to one or more
of the parties of record to the proceeding.
(4) In connection with any proceeding involving a decision by a presiding
officer after an evidentiary or adjudicatory hearing, information to which this
section applies may be made available to one or more parties of record the pro-
ceeding, upon request of a party under this paragraph (g)(4). A party of record
seeking disclosure of information shall direct his request to the presiding
officer. Upon receipt of such a request, the presiding officer shall notify each
affected business that disclosure under this paragraph (g)(4) has been requested,
and shall afford each such business a period for comment found by the presiding
officer to be reasonable under the circumstances. Information may be disclosed
to a party of record under this paragraph (g)(4) only if, after consideration of
any timely comments submitted by the business, the presiding officer determines
in writing (i) the party of record has satisfactorily shown that with respect to
a significant matter which is in controversy in the proceeding, the party's ability
to participate effectively in the proceeding will be significantly impaired unless
the information is disclosed to him, and (ii) any harm to an affected business
that would result from the disclosure is likely to be outweighed by the benefit
to the proceeding and to the public interest that would result from the disclosure.
The presiding officer may condition disclosure of the information to a party of
record on the making of such protective arrangements and commitments as he finds
to be warranted. Disclosure to one or more parties of record, under protective
arrangements or commitments, shall not, or itself, affect the eligibility of
information to confidential treatment under the other provisions of this subpart.
Any affected business shall be given at least 5 days notice by the pre-
siding officer prior to making the information available to one or more of the
parties of record to the proceeding.
(h) DISCLOSURE TO AUTHORIZED REPRESENTATIVES.
(1) Under sections 114, 208 and 307(a) of the Act, EPA possesses authority
to disclose to any authorized representative of the United States any information
to which this section applies, notwithstanding the fact that the information might
otherwise be entitled to confidential treatment under this subpart. Such authority
may be exercised only in accordance with paragraph (h)(2) or (h)(3) of this section.
(2)(i). A person under contract or subcontract to EPA to perform work for
EPA in connection with the Act or regulations which implement the Act may be
considered an authorized representative of the United States for purposes of this
paragraph (h). Subject to the limitations in this paragraph (h)(2), information
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to which this section applies may be disclosed to such a person if the EPA program
office managing the contract or subcontract first determines in writing that such
disclosure is necessary in order that the contractor or subcontractor may carry
out the work required by the contract or subcontract.
(ii) No information shall be disclosed under the paragraph (h)(2), unless
this contract or subcontract in question provides:
(A) That the contractor or subcontractor and the contractor's or subcon-
tractor's employees shall use the information only for the purpose of carrying
out the work required by the contract or subcontract, shall refrain from disclosing
the information to anyone other than EPA without the prior written approval of
each affected business or of an EPA legal office, and shall return to. EPA all
copies of the information (and any abstracts or extracts therefrom) upon request
by the EPA program office, whenever the information is no longer required by the
contractor or subcontractor for the performance of the work required under the
contract or subcontract, or upon completion of the contract or subcontract;
(B) That the contractor or subcontractor shall obtain a written agreement
to honor such terms of the contract or subcontract from each of the contractor's
or subcontractor's employees who will have access to the information, before such
employee is allowed such access; and
(C) That the contractor or subcontractor acknowledges and agrees that the
contract or subcontract provisions concerning the use and disclosure of business
information are included for the benefit of, and shall be enforceable by, both
EPA and any affected business having an interest in information concerning it
supplied to the contractor or subcontractor by EPA under the contract or subcon-
tract.
(iii) No information shall be disclosed under this paragraph (h)(2) until
each affected business has been furnished notice of the contemplated disclosure by
the EPA program office and has been afforded a period found reasonable by that
office (not less than 5 working days) to submit its comments. Such notice shall
include a description of the information to be disclosed, the identity of the
contractor or subcontractor, the contract or subcontract number, if any, and the
purposes to be served by the disclosure.
(iv) The EPA program office shall prepare a record of each disclosure under
this paragraph (h)(2), showing the contractor or subcontractor, the contract or
subcontract number, the information disclosed, the date(s) of disclosure, and
each affected business. The EPA program office shall maintain the record of
disclosure and the determination of necessity prepared under paragraph (h)(2)(i)
of this section for a period of not less than 36 months after the date of the
disclosure.
(3) A state or local governmental agency which has duties or responsibil-
ities under the Act, or under regulations which implement the Act, may be con-
sidered an authorized representative of the United States for purposes of this
paragraph (h). Information to which this section applies may be furnished to
such an agency at the agency's written request, but only if
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(i) The agency has first furnished to the EPA office having custody of the
information a written opinion from the agency's chief legal officer or counsel
stating that under applicable state or local law the agency has the authority to
compel a business which possesses such information to disclose it to the agency,
or
(ii) Each affected business is informed of those disclosures under this
paragraph (h)(3) which pertain to it, and the agency has shown to the satisfaction
of an EPA legal office that the agency's use and disclosure of such information
will be governed by state or local law and procedures which will provide adequate
protection to the interests of affected businesses.
§2.302 Special rules governing certain information obtained under the Clean
Water Act.
(a) DEFINITIONS. For the purposes of this section:
(1) "Act" means the Clean Water Act, as amended, 33 U.S.C. 1251 et seq.
(2)(i) "Effluent data" means, with reference to any source of discharge
of any pollutant (as that term is defined in section 502(6)of the Act,
33 U.S.C. 1362(6))
(A) Information necessary to determine the identity, amount, frequency,
concentration, temperature, or other characteristics (to the extent related to
water quality) of any pollutant which has been discharged by the source (or of
any pollutant resulting from any discharge from the source), or any combination
of the foregoing;
(B) Information necessary to determine the identity, amount, frequency,
concentration, temperature, or other characteristics (to the extent related to
water quality) of the pollutants which, under an applicable standard or limitation,
the source was authorized to discharge (including, to the extent necessary for
such purpose, a description of the manner or rate of operation of the source);
and
(C) A general description of the location and/or nature of the source
to the extent necessary to identify the source and to distinguish it from other
sources (including, to the extent necessary for such purposes, a description of
the device, installation, or operation constituting the source).
(ii) Notwithstanding paragraph (a)(2)(i) of this section, the following
information shall be considered to be "effluent data" only to the extent necessary
to allow EPA to disclose publicly that a souce is (or is not) in compliance with
an applicable standard or limitation, or to allow EPA to demonstrate the feasi-
bility, practicability, or attainability (or lack thereof) of an existing or
proposed standard or limitation:
(A) Information concerning research, or the results of research, on any
product, method, device, or installation (or any component thereof) which was
produced, developed, installed, and used only for research purposes; and
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(B) Information concerning any product, method, device, or installation
(or any component thereof) designed and intended to be marketed or used commer-
cially but not yet so marketed or used.
(3) "Standard or limitation" means any prohibition, any effluent limita-
tion, or any toxic, pre-treatment or new source publicly proposed pursuant to
the Act or pursuant to regulations under the Act, including limitations or prohi-
bitions in a permit issued or proposed by EPA, or by a State under section 402 of
the Act, 33 U.S.C. 1342.
(4) "Proceeding" means any rulemaking, adjudication, or licensing conducted
by EPA under the Act or under regulations which implement the Act, except for
determinations under this part.
(b) APPLICABILITY. (1) This section applies only to business informa-
tion ~
(i) Provided to or obtained by EPA under section 308 of the Act, 33 U.S.C.
1318, by or from the owner or operator of any point source, for the purpose of
carrying out the objective of the Act (including but not limited to developing or
assisting in the development of any standard or limitation under the Act, or
determining whether any person is in violation of any such standard or limitation);
or
(ii) Provided to or obtained by EPA under section 509(a) of the Act,
33 U.S.C. 1369(a).
(2) Information will be considered to have been provided or obtained
under section 308 of the Act if it was provided in response to a request by EPA
made for any of the purposes stated in section 308, or if its submission could
have been required under section 308, regardless of whether section 308 was cited
as the authority for any request for the information, whether an order to provide
the information was issued under section 309 (a)(3) of the Act, 33 U.S.C. 1319
(a)(3), whether a civil action was brought under section 309(b) of the Act,
33 U.S.C. 13l9(b), and whether the information was provided directly to EPA or
through some third person.
(3) Information will be considered to have been provided or obtained under
section 509(a) of the Act if it was provided in response to a subpoena issued
under section 509(a), or if its production could have been required by subpoena
under section 509(a) regardless of whether section 509(a) was cited as the author-
ity for any request for the information, whether a subpoena was issued by EPA,
whether a court issued an order under section 307(a), or whether the information
was provided directly to EPA or through some third person.
(4) This section specifically does not apply to information obtained under
section 310(d) or 312(g)(3) of the Act, 33 U.S.C. 1320(d), 1322(g)(3).
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201 through 2.207,
§2.209, §§2.211 through 2.215 apply without change to information to which this
section applies.
(d) [Reserved]
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(e) Substantive criteria for use in confidentiality determinations. Section
2.208 applies to information to which this section applies, except that information
which is effluent data or a standard or limitation is not eligible for. confidential
treatment. No information to which this section applies is voluntarily submitted
information.
(f) Availability of information not entitled to confidential treatment.
Section 2.210 does not apply to information to which this section applies.
Effluent data, standards or limitations, and any other information provided or
obtained under section 308 of the Act which is determined under this subpart not
to be entitled to confidential treatment, shall be available to the public
notwithstanding any other provision of this part. Effluent data and standards or
limitations provided in response to a subpoena issued under section 509(a) of the
Act shall be available to the public notwithstanding any other provision of this
part. Information (other than effluent data and standards or limitations) pro-
vided in response to a subpoena issued under section 509(a) of the Act, which is
determined under this subpart not to be entitled to confidential treatment, shall
be available to the public, unless EPA determines that the information is exempt
from mandatory disclosure under 5 U.S.C. 552(b) for reasons other than reasons of
business confidentiality and cannot or should not be made available to the public.
(g) DISCLOSURE OF INFORMATION RELEVANT TO A PROCEEDING.
(1) Under sections 308 and 509(a) of the Act, any information to which this
section applies may be released by EPA because of the relevance of the information
to a proceeding, notwithstanding the fact that the information otherwise might be
entitled to confidential treatment under this subpart. Release of information to
which this section applies because of its relevance to a proceeding shall be made
only in accordance with this paragraph (g).
(2-4) The provisions of §2.301(g)(2), (g)(3), and (g)(4) are incorporated by
reference as paragraphs (g)(2) , (g)(3), and (g)(4), respectively of this section.
(h) DISCLOSURE TO AUTHORIZED REPRESENTATIVES.
(1) Under sections 308 and 509(a) of the Act, EPA possesses authority to
disclose to any authorized representative of the United States any information to
which this section applies, notwithstanding the fact that the information might
otherwise be entitled to confidential treatment under this subpart. Such author-
ity may be exercised only in accordance with paragraph (h)(2) or (h)(3) of this
section.
(2-3) The provisions of §2.301 (h)(2) and (h)(3) are incorporated by
reference as paragraphs (h)(2) and (h)(3), respectively, of this section.
§2.303 Special rules governing certain information obtained under the Noise
Control Act of 1972.
(a) DEFINITIONS. For the purposes of this section:
(1) "Act" means the Noise Control Act of 1972, 42 U.S.C. 4901 et seq.
(2) "Manufacturer" has the meaning given it in 42 U.S.C. 4902(6).
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(3) "Product" has the meaning given it in 42 U.S.C. 4902(3).
(4) "Proceeding" means any ruleraaking, adjudication, or licensing conducted
by EPA under the Act or under regulations which implement the Act, except for
determinations under this subpart.
(b) APPLICABILITY. This section applies only to information provided to or
obtained by EPA under section 13 of the Act, 42 U.S.C. 4912, by or from any
manufacturer of any product to which regulations under section 6 or 8 of the Act
(42 U.S.C. 4905, 4907) apply. Information will be deemed to have been provided
or obtained under section 13 of the Act if it was provided in response to a
request by EPA made for the purpose of enabling EPA to determine whether the
manufacturer has acted or is acting in compliance with the Act, or if its submission
could have been required under section 13 of the Act regardless of whether section
13 was cited as authority for the request, whether an order to provide such infor-
mation was issued under section ll(d) of the Act, 42 U.S.C. 4910(d), and whether
the information was provided directly to EPA by the manufacturer or through some
third person.
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201 through 2.207
and §§2.209 through 2.215 apply without change to information to which this section
applies.
(d) [Reserved]
(e) SUBSTANTIVE CRITERIA FOR .USE IN CONFIDENTIALITY DETERMINATIONS. Section
2.208 applies without change to information to which this section applies; however
no information to which this section applies is voluntarily submitted information.
(f) [Reserved]
(g) DISCLOSURE OF INFORMATION REIEVANT TO A PROCEEDING.
(1) Under section 13 of the Act, any information to which this section
applies may be released by EPA because of its relevance to a matter in controversy
in a proceeding, notwithstanding the fact that the information otherwise might be
entitled to confidential treatment under this subpart. Release of information
because of its relevance to a proceeding shall be made only in accordance with
this paragraph (g).
(2-4) The provisions of §2.301(g)(2), (g)(3), and (g)(4) are incorporated
by reference as paragraphs (g)(2), (g)(3), and (g)(4), respectively, of this
section,
(h) [Reserved]
§2.304 Special rules governing certain information obtained under the Safe
Drinking Water Act.
(a) DEFINITIONS. For the purposes of this section:
(1) "Act" means the Safe Drinking Water Act, 42 U.S.C. 300f et seq.
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(2) "Contaminant" means any physical, chemical, biological, or radiological
substance or matter in water.
(3) "Proceeding" means any rulemaking, adjudication, or licensing process
conducted by EPA under the Act or under regulations which implement the Act,
except for any determination under this part.
(b) APPLICABILITY.
(1) This section applies only to information --
(i) Which was provided to or obtained by EPA pursuant to a requirement of a
regulation which was issued by EPA under the Act for the purpose of --
(A) Assisting the Administrator in establishing regulations under the Act;
(B) Determining whether the person providing the information has acted or
is acting in compliance with the Act; or
(C) Administering any program of financial assistance under the Act; and
(ii) Which was provided by a person
(A) Who is a supplier of water, as defined in section 1401(5) of the Act,
42 U.S.C. 300f(5);
(B) Who is or may be subject to a primary drinking water regulation under
section 1412 of the Act, 42 U.S.C. 300g-l;
(C) Who is or may be subject to an applicable underground injection control
program, as defined in section 1422(d) of the Act, 42 U.S.C. 300h-1(d)
(D) Who is or may be subject to the permit requirements of section 1424(b)
of the Act, 42 U.S.C. 300h-3(b);
(E) Who is or may be subject to an order issued under section 1441(c) of
the Act, 42 U.S.C. 300j(c); or
(F) Who is a grantee, as defined in section 1445(e) of the Act, 42 U.S.C.
300j-4(e).
*
(2) This section applies to any information which is described by paragraph
(b)(1) of this section if it was provided in response to a request by EPA or its
authorized representative (or by a State agency administering any program under the
Act) made for any purpose stated in paragraph (b)(1) of this section, or if its
submission could have been required under section 1445 of the Act, 42 U.S.C. 300J-4,
regardless of whether such section was cited in any request for the information,
or whether the information was provided directly to EPA or through some third persor.
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201 through 2.207,
§2.209, and §§2.211 through 2.215 apply without change to information to which
this section applies.
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(d) [Reserved]
(e) SUBSTANTIVE CRITERIA FOR USE IN CONFIDENTIALITY DETERMINATIONS. Section
2.208 applies to information to which this section applies, except that information
which deals with the existence, absence or level of contaminants in drinking water
is not eligible for confidential treatment. No information to which this section
applies is voluntarily submitted information.
(f) NONDISCLOSURE FOR REASONS OTHER THAN BUSINESS CONFIDENTIALITY OR WHERE
DISCLOSURE IS PROHIBITED BY OTHER STATUTE. Section 2.210 applies to information
to which this section applies, except that information which deals with the
existence, absence, or level of contaminants in drinking water shall be available
to the public notwithstanding any other provision of this part.
(g) DISCLOSURE OF INFORMATION RELEVANT TO A PROCEEDING.
(1) Under section 1445(d) of the Act, any information to which this
section applies may be released by EPA because of the relevance of the information
to a proceeding, notwithstanding the fact that the information otherwise might be
entitled to confidential treatment under this subpart. Release of information to
which this section applies because of its relevance to a proceeding shall be made
only in accordance with this paragraph (g).
(2-4) The provisions of §2.301(g)(2), (g)(3), (g)(4) are incorporated by
reference as paragraphs (g)(2), (g)(3), and (g)(4), respectively, of this section.
(h) DISCLOSURE TO AUTHORIZED REPRESENTATIVES.
(1) Under section 1445(d) of the Act, EPA possesses authority to disclose
to any authorized representative of the United States any information to which
this section applies, notwithstanding the fact that the information otherwise
might be entitled to confidential treatment under this subpart. Such authority
may be exercised only in accordance with paragraph (h)(2) or (h)(3) of this
section.
(2-3) The provisions of §2.301 (h)(2) and (h)(3) are incorporated by
reference as paragraphs (h)(2) and (h)(3), respectively, of this section.
§2.305 Special rules governing certain information obtained under the Solid Waste
Disposal Act, as amended.
(a) DEFINITIONS. For purposes of this section:
(1) "Act" means the Solid Waste Disposal Act, as amended, including
amendments made by the Resource Conservation and Recovery Act of 1976, as amended,
42 U.S.C. 6901 et seq.
(2) "Person" has the meaning given it in section 1004(15) of the Act,
42 U.S.C. 6903(15).
(3) "Hazardous waste" has the meaning given it in section 1004(5) of the
Act, 42 U.S.C. 6903(5).
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(4) "Proceeding" means any ruleraaking, adjudication, or licensing conducted
by EPA under the Act or under regulations which implement the Act including the
issuance of administrative orders and the approval or disapproval of plans (e.g.,
closure plans) submitted by persons subject to regulation under the Act, but not
including determinations under this subpart.
(b) APPLICABILITY. This section applies to information provided to or
obtained by EPA under section 3001(b)(3)(B) , 3007, or 9005 of the Act, 42 U.S.C.
6921(b)(3)(B), 6927 or 6995. Information will be considered to have been provided
or obtained under sections 3001(b)(3)(B), 3007, or 9005 of the Act if it was
provided in response to a request from EPA made for any of the purposes stated in
the Act or if its submission could have been required under those provisions of
the Act regardless of whether a specific section was cited as the authority for
any request for the information or whether the information was provided directly
to EPA or through some third person.
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201 through 2.207
and §§2.209 through 2.215 apply without change to information to which this
section applies.
(d) [Reserved]
(e) SUBSTANTIVE CRITERIA FOR USE IN CONFIDENTIALITY DETERMINATIONS.
Section 2.208 applies without change to information to which this section applies;
however, no information to which this section applies is voluntarily submitted
information.
(f) [Reserved]
(g) DISCLOSURE OF INFORMATION REIEVANT IN A PROCEEDING.
(V, Under sections 3007(b) and 9005(b) of the Act (42 U.S.C. 6927(b) and
6995(b)), any information to which this section applies may be disclosed by EPA
because of the relevance of the information in a proceeding under the Act, not-
withstanding the fact that the information otherwise might be entitled to confi-
dential treatment under this subpart. Disclosure of information to which this
section applies because of its relevance in a proceeding shall be made only in
accordance with this paragraph (g).
(2-4) The provisions of §2.301 (g)(2), (g)(3), and (g)(4) are incorporated
by reference as paragraphs (g)(2), (g)(3), and (g)(4), respectively, of this section.
(h) DISCLOSURE TO AUTHORIZED REPRESENTATIVES.
(1) Under sections 3001(b)(3)(B), 3007(b), and 9005(b) of the Act
(42 U.S.C. 6921(b)(3)(B), 6927(b), and 6995(b)), EPA possesses authority to dis-
close to any authorized representative of the United States any information to
which this section applies, notwithstanding the fact that the information might
otherwise be entitled to confidential treatment under this subpart. Such authority
may be exercised only in accordance with paragraph (h)(2) or (h)(3) of this
section.
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(2-3) The provisions of §2.301 (h)(2) and (h)(3) are incorporated by
reference as paragraphs (h)(2) and (h)(3), respectively, of this section.
(4) At the time any information is furnished to a contractor, subcontractor,
or state or local government agency under this paragraph (h) , the EPA office
furnishing the information to the contractor, subcontractor, or state or local
government agency shall notify the contractor, subcontractor, or state or local
government agency that the information may be entitled to confidential treatment
and that any knowing and willful disclosure of the information may sxibject the
contractor, subcontractor, or state or local government agency and its employees
to penalties in section 3001(b)(3)(B), 3007(b)(2), or 9005(b)(1) of the Act
(42 U.S.C. 6921(b)(3)(B), 6927(b) , or 6995(b)).
§2.306 Special rules governing certain information obtained under the Toxic
Substances Control Act.
(a) DEFINITIONS. For the purposes of this section:
(1) "Act" means the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.
(2) "Chemical substance" has the meaning given it in section 3(2) of the
Act, 15 U.S.C. 2602(2).
(3)(i) "Health and safety data" means the information described in
paragraphs (a)(3)(i)(A), (a)(3)(i)(B), and (a)(3)(i)(C) of this section with
respect to any chemical substance or mixture offered for commercial distribution
(including for test marketing purposes and for use in research and development),
any chemical substance included on the inventory of chemical substances under
section 8 of the Act (15 U.S.C. 2607), or any chemical substance or mixture for
which testing is required under section 4 of the Act (15 U.S.C. 2603) or for
which notification is required under section 5 of the Act (15 U.S.C. 2604).
(A) Any study of any effect of a chemical substance or mixture on health,
on the environment, or on both, including underlying 'data and epidemiological
studies; studies of occupational exposure to a chemical substance or mixture; and
toxicological, clinical, and ecological studies of a chemical substance or mixture;
(B) Any test performed under the Act; and
(C) Any data reported to, or otherwise obtained by EPA from a study
described in paragraph (a)(3)(i)(A) of this section or a test described in
paragraph (a)(3)(i)(B) of this section.
(ii) Notwithstanding paragraph (a)(3)(i) of this section, no information
shall be considered to be "health and safety data" if disclosure of the information
would
(A) In the case of a chemical substance or mixture, disclose processes
used in the manufacturing or processing the chemical substance or mixture or,
(B) In the case of a mixture, disclose the portion of the mixture comprised
by any of the chemical substances in the mixture.
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(4) [Reserved]
(5) "Mixture" has the meaning given it in section 3(8) of the Act, 15
U.S.C. 2602(8).
(6) "Proceeding" means any rulemaking, adjudication, or licensing conducted
by EPA under the Act or under regulations which implement the Act, except for
determinations under this subpart.
(b) APPLICABILITY. This section applies to all information submitted to
EPA for the purpose of satisfying some requirement or condition of the Act or of
regulations which implement the Act, including information originally submitted
to EPA for some other purpose and either relied upon to avoid some requirement or
condition of the Act or incorporated into a submission in order to satisfy some
requirement or condition of the Act or of regulations which implement the Act.
Information will be considered to have been provided under the Act if the
information could have been obtained under authority of the Act, whether the Act
was cited as authority or not, and whether the information was provided directly
to EPA or through some third person.
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201 through 2.203,
§2.206, §2.207, and §§2.210 through 2.215 apply without change to information to
which this section applies.
(d) INITIAL ACTION BY EPA OFFICE. Section 2.204 applies to information
to which this section applies, except that the provisions of paragraph (e)(3) of
this section regarding the time allowed for seeking judicial review shall be
reflected in any notice furnished to a business under §2.204(d)(2).
(e) FINAL CONFIDENTIALITY DETERMINATION BY EPA LEGAL OFFICE. Section
2.205 applies to information to which this section applies, except that
(1) Notwithstanding §2.205(i), the General Counsel (or his designee),
rather than the Regional Counsel, shall make the determinations and take the
actions required by §2.205;
(2) In addition to the statement prescribed by the second sentence of
§2.205(f)(2), the notice of denial of a business confidentiality claim shall
state that under section 20(a) of the Act, 15 U.S.C. 2619, the business may
commence an action in an appropriate Federal district court to prevent disclosure.
(3) The following sentence is substituted for the third sentence of
§2.205(f)(2): "With respect to EPA's implementation of the determination the
notice shall state that (subject to §2.210) EPA will make the information available
to the public on the thirty-first (31st) calendar day after the date of the
business' receipt of the written notice (or on such later date as is established
in lieu thereof under paragraph (f)(3) of this section), unless the EPA legal
office has first been notified of the business' commencement of an action in a
Federal court to obtain judicial review of the determination and to obtain
preliminary injunctive relief against disclosure."; and
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(4) Notwithstanding §2.205(g), the 31 calendar day period prescribed by
§2.205(f)(2), as modified by paragraph (e)(3) of this section, shall not be
shortened without the consent of the business.
(f) [Reserved]
(g) SUBSTANTIVE CRITERIA FOR USE IN CONFIDENTIALITY DETERMINATIONS.
Section 2.208 applies without change to information to which this section applies
except that health and safety data are not eligible for confidential treatment.
No information to which this section applies is voluntarily submitted information.
(h) DISCLOSURE IN SPECIAL CIRCUMSTANCES. Section 2.209 applies to
information to which this section applies, except that the following two additional
provisions apply to §2.209(c):
(1) The official purpose for which the information is needed must be in
connection with the agency's duties under any law for protection of health or the
environment or for specific law enforcement purposes; and
(2) EPA notifies the other agency that the information was acquired under
authority of the Act and that any knowing disclosure of the information may
subject the officers and employees of the other agency to the penalties in section
14(d) of the Act (15 U.S.C. 2613(d)).
(i) DISCLOSURE OF INFORMATION RELEVANT IN A,PROCEEDING.
(1) Under section 14(a)(4) of the Act (15 U.S.C. 2613(a)(4)), any informa-
tion to which this section applies may be disclosed by EPA when the information
is relevant in a proceeding under the Act, notwithstanding the fact that the
information otherwise might be entitled to confidential treatment under this
subpart. However, any such disclosure shall be made in a manner that preserves
the confidentiality of the information to the extent practicable without impairing
the proceeding. Disclosure of information to which this section applies because
of its relevance in a a proceeding shall be made only in accordance with this
paragraph (i).
(2-4) The provisions of §§2.301(g)(2), (g)(3), and (g)(4) are incorporated
by reference as paragraphs (i)(2), (i)(3), and (i)(4), respectively, of this section.
(j) DISCLOSURE OF INFORMATION TO CONTRACTORS AND SUBCONTRACTORS.
(1) Under section 14(a)(2) of the Act (15 US.C. 2613(a)(2)), any informa-
tion to which this section applies may be disclosed by EPA to a contractor or
subcontractor of the United States performing work under the Act, notwithstanding
the fact that the information otherwise might be entitled to confidential treatment
under this subpart. Subject to the limitations in this paragraph (j) , information
to which this section applies may be disclosed to a contractor or subcontractor
if the EPA program office managing the contract or subcontract, or (in the case
of contractors or subcontractors with agencies other than EPA) the General Counsel,
determines in writing that such disclosure is necessary for the satisfactory
performance by the contractor or subcontractor of the contract or subcontract.
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(2-4) The provisions of §§2.301(h)(2)(ii), (h)(2)(iii), and (h)(2)(iv)
are incorporated by reference as paragraphs (j)(2), (j)(3), and (j)(4), respectively
of this section.
(5) At the time any information is furnished to a contractor or subcontracto
under this paragraph (j), the EPA office furnishing the information to the
contractor or subcontractor shall notify the contractor or subcontractor that the
information was acquired under authority of the Act and that any knowing disclosure
of the information may subject the contractor or subcontractor and its employees
to the penalties in section 14(d) of the Act (15 U.S.C. 2613(d)).
(k) DISCLOSURE OF INFORMATION WHEN NECESSARY TO PROTECT HEALTH OR THE
ENVIRONMENT AGAINST AN UNREASONABLE RISK OF INJURY.
(1) Under section 14(a)(3) of the Act (15 U.S.C. 2613(a)(3)), any informa-
tion to which this section applies may be disclosed by EPA when disclosure is
necessary to protect health or the enviroiment against an unreasonable risk of
injury to health or the environment. However, any disclosure shall be made in a
manner that preserves the confidentiality of the information to the extent not
inconsistent with protecting health or the environment against the unreasonable
risk of injury. Disclosure of information to which this section applies because
of the need to protect health or the environment against an unreasonable risk of
injury shall be made only in accordance with this paragraph (k).
. (2) If any EPA office determines that there is an unreasonable risk of
injury to health or the environment and that to protect health or the environment
against the unreasonable risk of injury it is necessary to disclose information to
vAiich this section applies that otherwise might be entitled to confidential
treatment under this subpart, the EPA office shall notify the General Counsel in
writing of the nature of the unreasonable risk of injury, the extent of the
disclosure proposed, how the proposed disclosure will serve to protect health or
the environment against the unreasonable risk of injury, and the proposed date ot
disclosure. Such notification shall be made as soon as practicable after discovery
of the unreasonable risk of injury. If the EPA office determines that the risk
of injury is so imminent that it is impracticable to furnish written notification
to the General Counsel, the EPA office shall notify the General Counsel orally.
(3) Upon receipt of notification under paragraph (k)(2) of this section,
the General Counsel shall make a determination in writing whether disclosure of
information to which this section applies that otherwise might be entitled to
confidential treatment is necessary to protect health or, the environment against
an unreasonable risk of injury. The General Counsel shall also determine the extent
of disclosure necessary to protect against the unreasonable risk of injury as
well as when the disclosure must be made to protect against the unreasonable risk
of injury.
(4) If the General Counsel determines that disclosure of information to
which this section applies that otherwise might be entitled to confidential
treatment is necessary to protect health or the environment against an unreasonable
risk of injury, the General Counsel shall furnish notice to each affected business
of the contemplated disclosure and of the General Counsel's determination. Such
notice shall be made in writing by certified mail, return receipt requested, at
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least 15 days before the disclosure is to be made. The notice shall state the
date upon which disclosure will be made. However, if the General Counsel determines
that the risk of injury is so imminent that it is impracticable to furnish such
notice 15 days before the proposed date of disclosure, the General Counsel may
provide notice by means that will provide receipt of the notice by the affected
business at least 24 hours before the disclosure is to be made. This may be done
by telegram, telephone, or other reasonably rapid means.
§2.307 Special rules governing certain information obtained under the Federal
Insecticide, Fungicide and Rodenticide Act.
(a) DEFINITIONS. For the purposes of this section:
(1) "Act" means the Federal Insecticide, Fungicide and Rodenticide Act,
as amended, 7 U.S.C. 136 et seq., and its predecessor, 7 U.S.C. 135 et seq.
(2) "Applicant" means any person who has submitted to EPA (or to a
predecessor agency with responsibility for administering the Act) a registration
statement or application for registration under the Act of a pesticide or ot an
establishment.
(3) "registrant" means any person who has obtained registration under the
Act of a pesticide or of an establishment.
(b) APPLICABILITY. This section applies to all information submitted to
EPA by an applicant or registrant for the purpose of satisfying some requirement
or condition of the Act or of regulations which implement the Act, including
information originally submitted to EPA for some other purpose but incorporated
by the applicant or registrant into a submission in order to satisfy some requirement
or condition of the Act or of regulations which implement the Act. This section
does not apply to information supplied to EPA by a petitioner in support of a
petition for a tolerance under 21 U.S.C. 346a(d), unless the information is also
described by the first sentence of this paragraph.
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201 through 2.203,
§2.206, §2.207, and §§2.210 through 2.215 apply without change to information to
which this section applies.
(d) INITIAL ACTION BY EPA OFFICE. Section 2.204 applies to information
to which this section applies, except that the provisions of paragraph (e) of
this section regarding the time allowed for seeking judicial review shall be
reflected in any notice furnished to a business under §2.204(d)(2).
(e) FINAL CONFIDENTIALITY DETERMINATION BY EPA LEGAL OFFICE. Section
2.205 applies to information to which this section applies, except that
(1) Notwithstanding §2.205(i), the General Counsel (or his designee),
rather than the Regional Counsel, shall make the determinations and take the actions
required by §2.205;
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(2) In addition to the statement prescribed by the second sentence of
§2.205 (f)(2), the notice of denial of a business confidentiality claim shall
state that under section 10(c) of the Act, 7 U.S.C. 136h(c), the business may
commence an action in an appropriate Federal district court for a declaratory
j udgment:
(3) The following sentence is substituted for the third sentence of
§2.205(f)(2): "With respect to EPA's implementation of the determination, the
notice shall state that (subject to §2.210) EPA will make the information available
to the public on the thirty-first (31st) calendar day after the date of the
business1s receipt of the written notice (or on such later date as is established
in lieu thereof under paragraph (f)(3) of this section), unless the EPA legal
office has first been notified of the business's commencement of an action in a
Federal court to obtain judicial review of the determination or to obtain a
declaratory judgment under section 10(c) of the Act and to obtain preliminary
injunctive relief against disclosure"; and
(4) Notwithstanding §2.205(g), the 31 calendar day period prescribed by
§2.205(f)(2), as modified by paragraph (e)(3) of this section, shall not be
shortened without the consent of the business.
(f) [Reserved]
(g) SUBSTANTIVE CRITERIA FOR USE IN CONFIDENTIALITY DETERMINATIONS.
Section 2.208 applies without change to information to which this section applies;
however, no information to which this section applies is voluntarily submitted
information.
(h) DISCLOSURE IN SPECIAL CIRCUMSTANCES.
(1) Section 2.209 applies without change to information to which this
section applies. In addition, under section 12(a)(2)(D) of the Act, 7 U.S.C.
136j(a)(2)(D), EPA possesses authority to disclose any information to which this
section applies to physicians, pharmacists, and other qualified persons needing
such information for the performance of their duties, notwithstanding the fact
that the information might otherwise be entitled to confidential treatment under
this subpart. Such authority under section 12(a)(2)(D) of the Act may be exercised
only in accordance with paragraph (h)(2) or (h)(3) of this section.
(2) Information to which this section applies may be disclosed (notwith-
standing the fact that it might otherwise be entitled to confidential treatment
under this subpart) to physicians, pharmacists, hospitals, veterinarians, law
enforcement personnel, or governmental agencies with responsibilities for protection
of public health, and to employees of any such persons or agencies, or to other
qualified persons, when and to the extent that disclosure is necessary in order
to treat illness or injury or to prevent imminent harm to persons, property, or
the environment, in the opinion of the Administrator or his designee.
(3) Information to which this section applies may be disclosed (notwith-
standing the fact that it otherwise might be entitled to confidential treatment
under this subpart) to a person under contract to EPA to perform work for EPA in
connection with the Act or regulations which implement the Act, if the EPA
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program office managing the contract first determines in writing that such disclosun
is necessary in order that the contractor may carry out the work required by the
contract. Any such disclosure to a contractor shall be made only in accordance
with the procedure and requirements of §2.301(h)(2)(ii) through (iv).
(4) Information to which this section applies, and which relates to
formulas of products, may be disclosed at any public hearing or in findings of
fact issued by the Administrator, to the extent and in the manner authorized by
the Administrator or his designee.
§2.308 Special rules governing certain information obtained under the Federal
Food, Drug and Cosmetic Act.
(a) DEFINITIONS. For the purposes of this section:
(1) "Act" means the Federal Food, Drug and Cosmetic Act, as amended,
21 U.S.C. 301 et seq.
(2) "Petition" means a petition for the issuance of a regulation
establishing a tolerance for a pesticide chemical or exempting the pesticide
chemical from the necessity of a tolerance, pursuant to section 408(d) of the
Act, 21 U.S.C. 346a(d).
(3) "Petitioner" means a person who has submitted a petition to EPA (or
to a predecessor agency).
(b) APPLICABILITY.
(1) This section applies only to business information submitted to EPA
(or to an advisory committee established under the Act) by a petitioner, solely
in support of a petition which has not been acted on by the publication by EPA of
a regulation establishing a tolerance for a pesticide chemical or exempting the
pesticide chemical from the necessity of a tolerance, as provided in section
408(d)(2) or (3) of the Act, 21 U.S.C. 346a(d)(2) or (3).
(2) Section 2.307, rather than this section, applies to information
described by the first sentence of §2.307(b) Material incorporated into submissions
in order to satisfy the requirements of the Federal Insecticide, Fungicide and
Rodenticide Act, as amended), even though such information was originally submitted
by a petitioner in support of a petition.
(3) This section does not apply to information gathered by EPA under a
proceeding initiated by EPA to establish a tolerance under §408(e) .of the Act,
21 U.S.C. 346a(e).
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201, 2.202, 2.206,
2.207, and §§2.210 through 2.215 apply without change to information to which
this section applies.
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(d) EFFECT OF SUBMISSION OF INFORMATION WITHOUT CLAIM. Sections 2.203(a)
and (b) apply without change to information to which this section applies.
Section 2.203(c), however, does not apply to information to which this section
applies. A petitioner's failure to assert a claim when initially submitting a
petition shall not constitute a waiver of any claim the petitioner may have.
(e) INITIAL ACTION BY EPA OFFICE. Section 2.204 applies to information
to which this- section applies, except that
(1) Unless the EPA office has on file a written waiver of a petitioner's
claim, a petitioner shall be regarded as an affected business, a petition shall
be treated as if it were covered by a business confidentiality claim, and an EPA
office acting under §2.204(d) shall determine that the information in the petition
is or may be entitled to confidential treatment and shall take action in accordance
with §2.204(d)(1);
(2) In addition to other required provisions of any notice furnished to a
petitioner under §2.204(e), such notice shall state that
(i) Section 408(f) of the Act, 21 U.S.C. 346a(f), affords absolute
confidentiality to information to which this section applies, but after publication
by EPA of a regulation establishing a tolerance (or exempting the pesticide
chemical from the necessity of a tolerance) neither the Act nor this section
affords any protection to the information;
(ii) Information submitted in support of a petition which is also
incorporated into a submission in order to satisfy a requirement or condition of
the Federal Insecticide, Fungicide and Rodenticide Act, as amended, 7 U.S.C. 136
et seq., is regarded by EPA as being governed, 'with respect to business confidential!
by §2.307 rather than by this section;
(iii) Although it appears that this section may apply to the information
at this time, EPA is presently engaged in determining whether for any reason the
information is entitled to confidential treatment or will be entitled to such
treatment if and when this section no longer applies to the information; and
(iv) Information determined by EPA to be covered by this section will not
be disclosed for as long as this section continues to apply, but will be made
available to the public thereafter (subject to §2.210) unless the business furnishes
.timely comments in response to the notice.
(f) FINAL, CONFIDENTIALITY DETERMINATION BY EPA LEGAL OFFICE. Section
2.205 applies to information to which this section applies, except that
(1) Notwithstanding §2.205(i), the General Counsel or his designee, rather
than the Regional Counsel, shall in all cases make the determinations and take
the actions required by §2.205;
(2) In addition to the circumstances mentioned in §2.205(f) (1.), notice in
the form prescribed by §2.205(f)(2) shall be furnished to each affected business
whenever information is found to be entitled to confidential treatment under
section 408(f) of the Act but not otherwise entitled to confidential treatment.
With respect to such cases, the following sentences shall be substituted tor the
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third sentence of §2.205(f)(2): "With respect to EPA's implementation of the
determination, the notice shall state that (subject to §2.210) EPA will make the
information available to the public on the thirty-first (31st) calendar day after
the business's receipt of the written notice (or on such later date as is
established in lieu thereof under paragraph (f)(3) of this section), unless the
EPA legal office has first been notified of the business's commencement of an
action in a Federal court to obtain judicial review of the determination and to
obtain preliminary injunctive relief against disclosure; provided, that the
information will not be made available to the public for so long as it is entitled
to confidential treatment under section 408(f) of the Federal Food, Drug and
Cosmetic Act, 21 U.S.C. 346a(f)."; and
(3) Notwithstanding §2.205(g), the 31 calendar day period prescribed by
§2.205(f)(2), as modified by paragraph (f)(2) of this section, shall not be
shortened without the consent of the business.
(g) [Reserved]
(h) SUBSTANTIVE CRITERIA FOR USE IN CONFIDENTIALITY DETERMINATIONS.
Section 2.208 does not apply to information to which this section applies. Such
information shall be determined to be entitled to confidential treatment for so
long as this section continues to apply to it.
(i) DISCLOSURE IN SPECIAL CIRCUMSTANCES.
(1) Section 2.209 applies to information to which this section applies.
In addition, under Section 408(f) of the Act, 21 U.S.C. 346a(f), EPA is authorized
to disclose the information to other persons. Such authority under section
408(f) of the Act may be exercised only in accordance with paragraph (i)(2) or
(i)(3) of this section.
(2) Information to which this section applies may be disclosed (not-
withstanding the fact that it otherwise might be entitled to confidential
treatment under this subpart) to a person under contract to EPA to perform work
for EPA in connection with the Act, with the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended, or regulations which implement either such Act, if
the EPA program office managing the contract first determines in writing that
such disclosure is necessary in order that the contractor may carry out the work
required by the contract. Any such disclosure to a contractor shall be made only
in accordance with the procedures and requirements of §2.301(h)(2)(ii) through
(iv).
(3) Information to which this section applies may be disclosed by EPA to
an advisory committee in accordance with section 408(d) of the Act, 21 U.S.C.
346a(d).
§2.309 Special rules governing certain information obtained under the Marine
Protection, Research and Sanctuaries Act of 1972.
(a) DEFINITIONS. For the purposes of this section:
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(1) "Act" means the Marine Protection, Research and Sanctuaries Act of
1972, 33 U.S.C. 1401 et seq.
(2) "Permit" means any permit applied for or granted under the Act.
(3) "Application" means an application for a permit.
(b) APPLICABILITY. This section applies to all information provided to or
obtained by EPA as a part of any application or in connection with any permit.
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201 through 2.207
and §§2.209 through 2.215 apply without change to information to which this
section applies.
(d) SUBSATANTIVE CRITERIA FOR USE IN CONFIDENTIALITY DETERMINATIONS.
Section 2.208 does not apply to information to which this section applies. Pursuant
to section 104(f) of the Act, 33 U.S.C. 1414(f), no information to which this
section applies is eligible for confidential treatment.
§2.310 Special rules governing certain information obtained under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980.
(a) DEFINITIONS. For purposes'of this section:
(1) "Act" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. 9601 et seq.
(2) "Person" has the meaning given it in section 101(21) of the Act,
42 U.S.C. 9601(21).
(3) "Facility has the meaning given it in section 101(9) of the Act,
42 U.S.C. 9601(9).
(4) "Hazardous substance" has the meaning given it in section 101(14) of
the Act, 42 U.S.C. 9601(14).
(5) "Release" has the meaning given it in section 101(22) of the Act,
42 U.S.C. 9601(22).
(6) "Proceeding" means any rulemaking or adjudication conducted by EPA
under the Act or under regulations which implement the Act (including the issuance
of administrative orders under section 106 of the Act), or any administrative
determination made under section 104 of the Act, but not including determinations
under this subpart.
(b) APPLICABILITY. This section applies only to information provided to
or obtained by EPA under section 104 of the Act, 42 U.S.C 9604, by or from any
person who stores, treats, or disposes of hazardous wastes; or where necessary to
ascertain facts not available at the facility where such hazardous substances are
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located, by or from any person who generates, transports, or otherwise handles or
has handled hazardous substances. Information will be considered to have been
provided or obtained under section 104 of the Act if it was provided in response
to a request from EPA or a representative of EPA made for any of the purposes
stated in section 104, or if its submission could have been required under section
104, regardless of whether section 104 was cited as authority for any request for
the information or whether the information was provided directly to EPA or through
some third person.
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.201 through 2.207
and §§2.209 through 2.215 apply without change to information to which this section
appl ies.
(d) [Reserved]
(e) SUBSTANTIVE CRITERIA FOR USE IN CONFIDENTIALITY DETERMINATIONS.
Section 2.208 applies without change to information to which this section applies;
however, no information to which this section applies is voluntarily submitted
information.
(f) [Reserved]
(g)(1) Under section 104(e)(2)(A) of the Act (42 U.S.C. 9604(e)(2)(A)) any
information to which this section applies may be disclosed by EPA because of the
relevance of the information in a proceeding under the Act, notwithstanding the
fact that the information otherwise might be entitled to confidential treatment under
this subpart. Disclosure of information to which this section applies because of
its relevance in a proceeding shall be made only in accordance with this
paragraph (g).
(2) The provisions of §2.301(g)(2) are to be used as paragraph (g)(2) of
this section.
(3) The provisions of §2.301(g)(3) are to be used as paragraph (g)(3) of
this section.
(4) The provisions of §2.301(g)(4) are to be used as paragraph (g)(3) of
this section.
(h) DISCLOSURE TO AUTHORIZED REPRESENTATIVES.
(1) Under section 104(e)(2) of the Act (42 U.S.C. 9604(e)(2)), EPA
possesses authority to disclose to any authorized representative of the United
States any information to which this section applies, notwithstanding the fact
that the information might otherwise be entitled to confidential treatment under
this subpart. Such authority may be exercised only in accordance with paragraph
(h)(2) or (h)(3) of this section.
(2) The provisions of §2.301(h)(2) are to be used as paragraph (h)(2) of
this section.
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(3) The provisions of §2.301(h)(3) are to be used as paragraph (h)(3) of
this section.
(4) At the time any information is furnished to a contractor, subcontractor,
or state or local government agency under this paragraph (h), the EPA office
furnishing the information to the contractor, subcontractor, or state or local
government agency shall notify the contractor, subcontractor, or state or local
government agency that the information may be entitled to confidential treatment
and that any knowing and willful disclosure of the information may subject the
contractor, subcontractor, or state or local government agency and its employees
to penalties in section 104(e)(2)(B) of the Act (42 U.S.C. §9604(e)(2)(B)).
§2.311 Special rules governing certain information obtained under the Motor
Vehicle Information and Cost Savings Act.
(a) DEFINITIONS. For the purposes of this section:
(1) "Act" means the Motor Vehicle Information and Cost Savings Act, as
amended, 15 U.S.C. 1901 et seq.
(2) "Average fuel economy" has the meaning given it in section 501(4) of
the Act, 15 U.S.C. 2001(4).
(3) "Fuel economy has the meaning given it in section 501(6) of the Act,
15 U.S.C. 2001(6).
(4) Fuel economy data" means any measurement or calculation of fuel
economy for any model type and average fuel economy of a manufacturer under
section 503(d) of the Act, 15 U.S.C. 2003(d).
(5) "Manufacturer" has the meaning given it in section 501(9) of the Act,
15 U.S.C. 2001(9).
(6) "Model type" has the meaning given it in section 501(11) of the Act,
15 U.S.C. 2001(11).
(b) APPLICABILITY. This section applies only to information provided to
or obtained by EPA under Title V, Part A of the Act, 15 U.S.C. 2001 through 2012.
Information will be considered to have been provided or obtained under Title V,
Part A of the Act if it was provided in response to a request from EPA made for
any purpose stated in Title V, Part A, or if its submission could have been
required under Title V, Part A, regardless of whether Title V, Part A was cited as
the authority for any request for information or whether the information was
provided directly to EPA or through some third person.
(c) BASIC RULES WHICH APPLY WITHOUT CHANGE. Sections 2.2.01 through 2.207
and §§2.209 through 2.215 apply without change to information to which this section
applies.
(d) [Reserved]
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(e) SUBSTANTIVE CRITERIA FOR USE IN CONFIDENTIALITY DETERMINATION..
Section 2.208 applies without change to information to which this section applies,
except that information that is fuel economy data is not eligible for confidential
treatment. No information to which this section applies is voluntarily submitted
information.
(f) [Reserved]
(g) DISCLOSURE OF INFORMATION RELEVANT TO A PROCEEDING.
(1) Under section 505(d)(1) of the Act, any information to which this
section applies may be released by EPA because of the relevance of the information
to a proceeding under title V, Part A of the Act, notwithstanding the fact that
the information otherwise might be entitled to confidential treatment under this
subpart. Release of information to which this section applies because of its
relevance to a proceeding shall be made only in accordance with this paragraph (g)<
(2) The provisions of §2.301(g)(2) are to be used as paragraph (g)(2) of
this section.
(3) The provisions of §2.301(g)(3) are to be used as paragraph (g)(3) of
this section.
(4) The provisions of §2o301(g)(4) are to be used as paragraph (g)(4) of
this section.
Subpart C - Testimony by Employees and Production of Documents in Civil Legal
Proceedings Where the United States is Not a Party
§2.401 Scope and purpose.
This subpart sets forth procedures to be followed when an EPA employee is
requested or subpoenaed to provide testimony concerning information acquired in
the course of performing official duties or because of the employee's official
status. (In such cases, employees must state for the record that their testimony
does not necessarily represent the official position of EPA. If they are called
to state the official position of EPA, they should ascertain that position before
appearing.) These procedures also apply to subpoenas duces tecum for any document
in the possession of EPA and to requests for certification of copies of documents.
(a) These procedures apply to:
(1) State court proceedings (including grand jury proceedings):
(2) Federal civil proceedings, except where the United States, EPA or
another Federal agency is a party; and
(3) State and local legislative and administrative proceedings.
(b) These procedures do not apply:
(1) 'To matters which are not related to EPA;
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(2) To Congressional requests or subpoenas for testimony or documents;
(3) Where employees provide expert witness services as approved outside
activities in accordance with 40 CFR, Part 3, Subpart E (in such cases employees
must state for the record that the testimony represents their own views and does
not necessarily represent the official position of EPA);
(4) Where employees voluntarily testify as private citizens with respect
to environmental matters (in such cases, employees must state for the record that
the testimony represents their own views and does not necessarily represent the
official position of EPA).
(c) The purpose of this Subpart is to ensure that employees' official
time is used only for official purposes, to maintain the impartiality of EPA
among private litigants, to ensure that public funds are not used for private
purposes and to establish procedures for approving testimony or production of
documents when clearly in the interests of EPA.
§2.402 Policy of presentation of testimony and production of documents.
(a) With the approval of the cognizant Assistant Administrator, Office
Director, Staff Office Director or Regional Administrator or his designee, EPA
employees (as defined in 40 CFR 2.102(a) and (b) may testify at the request of
another Federal agency, or where it is in the interest of EPA, at the request of
a State br local government or" State legislative committee.
(b) Except as permitted by paragraph (a) of this section, no EPA employee
may provide testimony or produce documents in any proceeding to which this Subpart
applies concerning information acquired in the course of performing official
duties or because of the employee's official relationship with EPA, unless author-
ized by the General Counsel or his designee under §§2.403 through 2.406.
§2.403 Procedures when voluntary testimony is requested.
A request for testimony by an EPA employee under §2.402(b) must be in
writing and must state the nature of the requested testimony and the reasons why
the testimony would be in the interest of EPA. Such requests are immediately
sent to the General Counsel or his designee (or, in the case of employees in the
Office of Inspector General, the Inspector General or his designee) with the
recommendations of the employee's supervisors. The General Counsel or his
designee, in consultation with the appropriate Assistant Administrator, Regional
Administrator, or Staff Office Director (or, in the case of employees in the
Office of Inspector General, the Inspector General or his designee), determines
whether compliance with the request would clearly be in the interests of EPA and
responds as soon as practicable.
§2.404 Procedures when an employee is subpoenaed.
(a) Copies of subpoenas must immediately be sent to the General Counsel
or his designee with the recommendations of the employee's supervisors. The
General Counsel or his designee, in consultation with the appropriate Assistant
Administrator, Regional Administrator or Staff Office Director, determines whether
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compliance with the subpoena would clearly be in the interests of EPA and responds
as soon as practicable.
(b) If the General Counsel or his designee denies approval to comply with
the subpoena, or if he has not acted by the return date, the employee must appear
at the stated time and place (unless advised by the General Counsel or his designee
that the subpoena was not validly issued or served or that the subpoena has been
withdrawn), produce a copy of these regulations and respectfully refuse to provide
any testimony or produce any documents. United States ex rel. Touhy v. Ragen,
340 U.S.C. 462 (1951).
(c) Where employees in the Office of Inspector General are subpoenaed,
the Inspector General or his designee makes the determination under paragraphs
(a) and (b) of this section in consultation with the General Counsel.
(d) The General Counsel will request the assistance of the Department of
Justice or a U.S. Attorney where necessary to represent the interests of the
Agency and the employee.
§2.405 Subpoenas duces tecum.
Subpoenas duces tecum for documents or other materials are treated the
same as subpoenas for testimony. Unless the General Counsel or his designee, in
consultation with the appropriate Assistant Administrator, Regional Administrator
or Staff Office Director (or, as to employees in the Office of Inspector General,
the Inspector General) determines that compliance with the subpoena is clearly in
the interests of EPA, the employee must appear at the stated time and place
(unless advised by the General Counsel or his designee that the subpoena was not
validly issued or served or that the subpoena has been withdrawn) and respectfully
refuses to produce the subpoenaed materials. However, where a subpoena duces
tecum is essentially a written request for documents, the requested documents
will be provided or denied in accordance with Subparts A and B of this Part where
approval to respond to the subpoena has not been granted.
§2.406 Request for authenticated copies of EPA documents.
Requests for authenticated copies of EPA documents for purposes of
admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules of Civil
Procedure will be granted for documents which would otherwise be released pursuant
to Subpart A. For purposes of Rule 44 the "person having legal custody of the
record" is the cognizant Assistant Administrator, Regional Administrator, Staff
Office Director or his designee. The advice of the Office of General Counsel
should be obtained concerning the proper form of authentication.
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APPENDIX V
RECORDS RETENTION SCHEDULES
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RECORDS RETENTION SCHEDULES
Freedom of Information files are maintained by calendar year,
and should be retained in accordance with EPA's Records Control
Schedules. The schedules, shown below, are also contained in the
Agency's Records Management Manual.
1. AGENCY AND REGIONAL FOI OFFICES
a. FQIA Control Files.
Files maintained for control
purposes in responding to re-
quests, including registers
and similar records listing
date, nature, arid purpose
of request and name and
address of requester.
1) Registers or listing. Destroy 5 years after date of
(e.g., logbook) last entry.
2) Other files. Destroy 5 years after final
action by the Agency or after
final adjudication by courts,
whichever is later.
b. FOIA Reports Files.
Recurring reports and
one-time information
requirements relating to
the Agency implementation
of the Freedom of Informa-
tion Act, including annual
reports to the Congress.
1) Annual reports at Permanent. Offer to NARS with
Departmental/Agency related Agency records approved
level. for permanent retention in
Agency records control schedule
or when 15 years old, whichever
is sooner.
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2) Other reports. Destroy when 2 years old or
sooner if no longer needed
for administrative use.
c. FOIA Administrative Files.
Records relating to the Destroy when 2 years old or
general Agency implementa- sooner if no longer needed for
tion of FOIA, including administrative use.
notices, memoranda, routine
correspondence, and related
records.
2. HEADQUARTERS AND REGIONAL PROGRAM OFFICES (Action offices)
a. FOIA Requests Files.
Files created in response
to requests for informa-
tion under the Freedom of
Information Act consisting
of the original request, a
copy of the reply thereto,
and all related supporting
files which may include
official file copy of a
requested record or copy
thereof.
1) Correspondence and
supporting documents
(EXCLUDING the official
file copy ot the records
requested if filed
herein) .-
o Granting access to Destroy 2 years after date
all the requested of reply.
records.
o Responding to re-
quests for non-
existent records;
to requesters
who provide inadequate
descriptions; and to
those who fail to pay
agency reproduction fees.
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Request not
appealed.
Request appealed,
Destroy 2 years after date
of reply.
Destroy 4 years after final
determination by Agency or 3
years after final adjudication
by courts, whichever is later.
Denying access to
all or part of the
records requested.
(a) Request jnot
appealed.
(b) Request
appealed.
2) Official file copy
of requested records.
Destroy 5
of reply.
years after date
Destroy 4 years after final
determination by Agency or 3
years after final adjudication
by courts, whichever is later.
Dispose of in accordance with
approved Agency disposition
instruction for the related
records, or with the related
FOIA request, whichever is
later.
3. OFFICE OF GENERAL COUNSEL (OFFICE OF REGIONAL COUNSEL)*
a. FOIA Appeals Files.
Files created in responding
to administrative appeals
under the FOIA for release
of information denied by
the Agency, consisting of
the appellant's letter, a
copy of the reply thereto,
and related supporting
documents, which may include
the official file copy of
records under appeal or copy
thereof.
* FOIA appeals arising out of a regional denial under 40 C.F.R.
2.204(d)(l) are transferred by the Office of General Counsel to the
Office of Regional Counsel. The Regional Counsel's final
confidentiality determination serves as the Agency's determination
on the appeal.
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1) Correspondence and
supporting documents
(EXCLUDING the file
copy of the records
under appeal if filed
herein) .
2) Official file copy
of records under
appeal.
Destroy 4 years after final
determination by Agency or
3 years after final adjudi-
cation by courts, whichever
is later.
Dispose of in accordance with
approved Agency disposition
instructions for the related
record, or with the related
FOIA requests, whichever is
later.
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APPENDIX VI
CONTACT LIST OF FOI PERSONNEL AT EPA
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CONTACT LIST OF PERSONNEL AT EPA*
(Freedom of Intormation/Public Information Activities)
The following list of headquarters and Regional EPA
personnel can provide assistance on questions relating to the
Freedom of Information Act. If you are not sure who to call
regarding a specific question, always contact your Freedom of
Information Officer or Coordinator first. He/she will direct
you to the proper contact.
I. HEADQUARTERS
OFFICE
Agency Freedom of
Information Office
Jeralene B. Green
Agency FOI Officer
US EPA
401 M Street, SW
Washington, D.C. 20460
Mary Rhones (Assistant)
PHONE
NUMBER &
MAIL CODE
382-4048
A-101
HANDLE QUESTIONS ABOUT;
o FOIA policies and procedures.
o Program oversight.
o Log-in and routing matters.
o Billing and fee waivers.
o Delinquent requesters list.
o Annual report.
Office of General 382-5460
Counsel, LE-132G
Contracts & Information
Law Branch..
Office of External 475-8200
Affairs A-100EA
o Legal advice on FOIA, including
initial response, denials and
appeals.
o Business confidentiality
determinations.
o Changes in FOIA regulations.
o Legal advice on Privacy Act.
o Liaison with Department of
Justicfe.
o Fee waiver appeals.
o Discretionary release
determinations.
*For any EPA offices not listed here, especially field offices
or laboratories, check your directory or contact your FOI Officer,
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CONTACT LIST OF PERSONNEL AT EPA
(Freedom of Information/Public Information Activities)
OFFICE
PHONE
NUMBER &
MAIL CODE
HANDLE QUESTIONS ABOUT:
Privacy Act
Coordinator,
Office of Information
Resources Management
382-5913
PM-211D
o General information about
the Privacy Act.
Office of Executive
Support,
Congressional
Correspondence
382-7638
A-101
o Congressional' requests,
especially where FOIA
is not cited.
Financial
Management
Division,
Financial Management
Officer,
ATTN: Accounts
Receivable
382-5161
PM-226
o Questions about Billing
go to the Agency or
Regional FOI Office.
o Bill for Collection Form
(Form 2505-4) goes to
Headquarters or Regional
Financia.1 Management
Offices (as appropriate)
ATTN: Accounts Receivable
EPA's General
Accounting
Liaison
Office
382-7642
PM-222A
o Requests from the General
Accounting Office.
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CONTACT LIST OF PERSONNEL AT EPA
(Freedom of Information/Public Information Activities)
II. REGIONAL OFFICES
Region 1
Evelyn Sullivan
Freedom of Information Officer
TEL: FTS-223-7223
CML-617-223-7223
John F. Kennedy Federal Building
Room 2203
Boston, MA 02203
Region 1
Office of Regional Counsel
TEL: FTS-223-7210
Reg ion 2
James Marshall
Freedom of Information Officer
Nayda Maymi (Assistant)
TEL: FTS-264-2515
CML-212-264-2515
26 Federal Plaza
Room 900
New York, NY 10278
Region 2
Office of Regional Counsel
TEL: FTS-264-2525
Region 3
Lorraine Urbiet
Freedom of Information Officer
TEL: FTS-597-2447
CML-215-597-2447
Region 3
Office of Regional Counsel
TEL: FTS-597-9800
Carey Widman (Assistant)
TEL: FTS-597-0798
841 Chestnut Street
Philadelphia, PA 19107
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CONTACT LIST OF PERSONNEL AT EPA
(Freedom of Information/Public Information Activities
Region 4
Walton Jones
Freedom of Information Officer
TEL: FTS-257-3004
CML-404-881-3004
Rae Hallisey (Assistant)
345 Courtland Street, NE
Atlanta, GA 30365
Region 4
Office of Regional Counsel
TEL: FTS-257-3506
Region 5
Robert M. Hartian
Freedom of Information Officer
TEL: FTS-886-6686
CML-312-886-6686
230 South Dearborn Street
Chicago, IL 60604
Region 5
Office of Regional Counsel
TEL: FTS-886-6837
Region 6
Nita House
Freedom of Information Officer
TEL: FTS-729-7341
CML-214-767-7341
Leticia Lane (Assistant)
TEL: FTS-729-7341
1201 Elm Street
Dallas, TK 75270
Region 6
Office of Regional Counsel
TEL: FTS-729-9974
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CONTACT LIST OF PERSONNEL AT EPA
(Freedom of Information/Public Information Activities)
Region 7
Rowena Michaels
Freedom of Information Officer
TEL: FTS-757-2803
CML-913-236-2803
Pat Pennington (Assistant)
Victor Fleming (Coordinator)
TEL: FTS-757-2803
726 Minnesota Avenue
Kansas City, KS 66101
Region 7
Office of Regional Counsel
TEL: FTS-757-2800
Region 8
Jody Meacham
Freedom of Information Officer
TEL: FTS-564-1458
CML-303-293-1458
One Denver Place
999 18th Street, Suite 1300
Denver, CO 80202-2413
Region 8
Office of Regional Counsel
TEL: FTS-564-1458
Region 9
Melanie Blaha
Freedom of Information Officer
TEL: FTS-454-8083
CML-415-974-8083
215 Fremont Street
San Francisco, CA 94105
Region 9
Office of Regional Counsel
TEL: FTS-454-8038
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CONTACT LIST OF PERSONNEL AT EPA*
(Freedom of Information/Public Information Activities)
Region 10
Mary Neilson
Freedom of Information Officer
TEL; FTS-399-1234
CML-206-442-1234
Vivian Warden (Assistant)
TEL: FTS-399-1234
1200 6th Avenue
Seattle, WA 98101
Region 10
Office of Regional Counsel
TEL: FTS-399-1146
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INDEX
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INDEX
In each entry listing in this index, the first Arabic nu-
meral is the chapter number; the second, the page number. The
Roman numeral is the appendix number; the Arabic number which
follows is the page number.
Accountability of EPA Employees, 1-5
Acknowledging initial requests, 2-1, (sample forms II-4II-5)
Action Offices
appeal procedure, role of in, 10-2
confidential business information determination, role
of in, 8-28-4 (sample letter 1-15)
files, 2-4
guidance on initial responses, 3-13-8
litigation, role of in, 10-3
requests addressed directly to, 2-2
responsibilities of, 1-4
Administrative Fee Waivers, 4-14
Agency. See Environmental Protection Agency (EPA)
Annual Report to Congress, 11-111-3
Appeals
authority to issue determinations, 1-5
denial of records on, 10-210-3
determinations, 10-210-3
fee waivers or reductions, 4-13
judicial review, 10-3
procedures, 10-110-3
release of records on, 10-3
time requirements for, 1-21-3, 10-1
Attorney-Client Privilege, 7-7
Attorney Work-Product Privilege, 7-6
Bills for Collection
distribution, 4-54-6, (sample form, II-3), VI
form, 4-4--4-S, (sample form, II-3)
payment, 4-7, (sample form, II-3)
prepayment, 4-64-7, (sample letter, 1-7), (sample form, II-3)
procedures, 4-14-8, (sample form, II-3)
refunds, 4-8
Business Confidentiality. See Confidential Business Information
CBI. See Confidential Business Information
Checklist of FOIA Process, 1-61-7
Class Determination, 8-58-6
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Commercial Information. See Confidential Business Information
Confidential Business Information (CBI), 8-18-6
business1 opportunity to comment, 8-38-4
definition, 8-1
determining existence of claim, 8-2
disclosure of, 8-6
entitlement to treatment as, 8-28-6
exemption, 7-3
final determination, 8-48-5
initial determination, 8-28-4, (sample letter, 1-151-17)
policy on, 8-1
regulations, IV
Confidential Business Information Exemption, 7-3
Confidential Witness Statement Privilege, 7-7
Congress
annual report to, 11-111-3
fees charged to, 4-1
requests from, 3-2, VI-2
Contact List of FOI Personnel at EPA, VI-1VI-6
Contractor-Held Records, 3-8
Coordinators, 1-3, 2-22-3
Costs. See Fees
Definitions, 1-11-2
Delegation of Authority, 1-4-1-5
Deliberative Process Privilege, 7-47-6
Delinquent Requesters, 4-14, (sample letter, 1-9)
Denials
appeal rights, 10-1
basis for issuing, 7-17-10, 8-18-6 (see Exemptions)
fee waiver or reduction requests, 4-13
letters, 6-36-5, (samples, 1-131-14)
signing officials, 1-41-5
time frame for, 6-3
Discretionary Release, 6-2, 9-1, 10-210-3
Documents. See Records
Drafts, 5-2, 7-4 7-5
Duplication Costs, 4-24-3
Employees, personal records of, 3-23-5
Enforcement Records. See Investigatory Records Exemption
Environmental Protection Agency (EPA)
FOIA regulations, IV
FOIA responsibilities, 1-31-4
overview of FOIA process, 1-51-8
policy on FOIA, 1-1, 1-4
records (see Records)
Exemptions under FOIA, 2-4, 6-1, 7-1-7-10
exemption 1, National Defense/Foreign Policy, 7-2
exemption 2, Internal Agency Rules, 7-2
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exemption 3, Information Exempt Under Other Statutes, 7-3
exemption 4, Trade Secrets/Commercial Financial
Information, 7-3
exemption 5, Inter- and Intra-Agency Memoranda, 7-4
exemption 6, Personal Privacy, 7-7
exemption 7, Investigatory Records, 7-8
exemption 8, Records of Financial Institutions, 7-10
exemption 9, Geological/Geophysical Information, 7-10
Expert Witness Privilege, 7-7
Extensions of Time, 1-3, (sample letter, 1-10)
Federal Agencies
records held by, 3-7
requests from, 3-2
Fee Reductions, 4-124-13
See also Fee Waivers
Fees, 4-14-14
assurance of payments, 4-3--4-4
billings, 4-4--4-S, (sample form, II-3)
calculatio- of, 4-2
general procedures, 4-1--4-8
payment method, 4-7, (sample form, II-3)
requests for which there is no charge, 4-1
See also Costs
Fee Waivers, 4-14-14
administrative, 4-14
appeals, 4-13
denials, 4-13
policy, 4-3
public interest (see Public Interest Fee Waivers
or Reductions)
See also Fee Reductions
Field Offices, 2-3
Financial Information. See Confidential Business Information
Financial Institution Records, 7-10
Financial Management Offices, 1-4, VI-2
Flowchart of FOIA Process, 1-8
FOIA Files, 2-3--2-4
FOIA Statute (5 U.S.C. 522), IIE-1--IIE-4
Foreign Policy Information, 7-2
Forms, sample, II
Future Records, 3-2, (sample letter, 1-1)
GAO, requests from, 3-2, VI-2
Geological and Geophysical Information, 7-10
Government Commercial Information Privilege, 7-7
Information Exempt under other Statutes, 7-3
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Initial Determinations
signing officials, 1-41-5
time requirements for, 1-2
Inter-Agency Memoranda, 7-4--7-7
Interference with Enforcement Proceedings, 7-S--7-9
Internal Agency Rules, 7-27-3
Intra-Agency Memoranda, 7-4--7-7
Investigatory Records Exemption, 7-8--7-10
Judicial Review of Appeals, 10-3
Letters, sample, I
Lock Box Addresses, 4-7
Logbook, 2-3, (sample form, II-l)
Logging initial requests, 2-1, (sample forms, II-lII-3)
Memoranda, 5-2, 7-47-5
National Defense Information, 7-2
National Security Information, 7-2
Notes, 5-2
Office, Agency Freedom of Information, 1-3
.Office, External Affairs, 1-3
Office, General Counsel, 1-3
Office, Regional Counsel, 1-4
Office, Regional Freedom of Information, 1-4
Oral Requests, 3-13-2
Partial Denial of Records, 1-2, 6-1, 6-S--6-6, (sample
letter, 1-14)
Partial Release of Records. See Partial Denial of Records
Payments
methods, 4-7, (sample form, II-3)
refunds, 4-8
tracking of, 4-8, (sample form, II-3)
See also Prepayments
Personal Privacy Information, 7-77-9
Personal Records of Employees, 3-23-5
Personnel Contact List, VI-1--VI-6
Predecisional Records, 7-5
Prepayments, 4-3--4-4
billing, 4-64-7, (sample letter, 1-7), (sample form, II-3)
Prior Disclosure, 6-2
Privacy Act, 6-2, 7-3, 9-1
Privileged Inter-Agency or Intra-Agency Memoranda
Exemption, 7-4 7-7
Program Offices. See Action Offices
Public Disclosure, 2-32-4
Public Interest Fee Waivers or Reductions, 4-84-13
assistance in decisions, 4-10
criteria, 4-104-12
policy, 4-8
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procedural guidelines, 4-94-10, (sample letter, 1-8)
public participation requirements, 4-124-13
special considerations, 4-10
Public Participation Requirements, 4-124-13
Reading Room, Records in, 3-7
Recordkeeping, 6-6, 11-3
Records
definition of, 1-1
description, 3-6, (sample letter, 1-2)
personal, 3-23-5
published in Federal Register or elsewhere
in Federal Government, 3-7, (sample letter, 1-4)
retention schedules, 11-3, V-lV-4
search, 5-2
Records, Location of, 3-63-8, (sample letters, 1-31-6)
do not exist, 3-73-8, (sample letter, 1-5)
held by EPA and originating with another Federal Agency, 3-7
in EPA's possession, 3-63-7
in public reading room, 3-7
not in EPA's possession, 3-73-8, (sample letters, 1-51-6)
Records, Release of, 1-2, 5-15-4
initial determinations, 3-6
letters, 5-35-4, 1-111-12
recordkeeping, 5-4, V
signing officials, 1-41-5, 5-1
time frame for, 1-21-3, 5-25-3
Records, Withholding, 1-2, 6-1--6-6
denial letter, 6-36-5, (sample letter, 1-13)
discretionary release, 6-2
FOIA exemptions, 6-1, 7-17-10
partial denial, 1-2, 6-1, 6-56-6, (sample letter, 1-14)
recordkeeping, 6-6
signing officials, 1-41-5, 6-1
time frame for, 1-21-3, 6-3
Redelegation of Authority, 1-4
Refunds, 4-8
Regional Counsel, 1-4
Regional FOI Office, 1-4
Regional Office Annual Report, 11-111-3
Release Letters, 5-35-4, (sample letters, 1-111-12)
Release of Records, Dicretionary, 1-2, 6-2, 9-1
appeals, 10-210-3
Requests, FOIA
acknowledgment of, 2-1, (sample forms, II-4II-5)
assignment of RIN, 2-1, (sample form, II-2)
definition of, 1-11-2
logging, 2-1, 2-3, (sample form, II-l)
initial handling by action office, 1-2
initial handling by FOI Offices, 2-12-3
routing, 2-12-3
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Requests, Initial Response to, 3-1--3-8
determination of, 3-13-5
oral requests, 3-1--3-2
procedural guidelines, 3-1, 3-6--3-S
record description, 3-6, (sample letter, 1-2)
voluminous records, 3-6, (sample letter, 1-2)
Requests, Sources of, 1-11-2
from Congress, 3-2, VI-2
from delinquent requesters, 4-14, (sample letter, 1-9)
from Federal Agencies, 3-2
Erom GAO, 3-2, VI-2
Review of FOIA Policies and Procedures, 1-4
Sample Forms, II
Sample Letters, I
Search Costs, 4-2
State Records, 3-8, 7-4
Time Requirements
appeals, 1-2--1-3, 10-1
extensions, 1-3, (sample letter, I-LO)
for denying requests, 1-21-3, 6-3
for initial determinations, 1-2
for releasing records, 1-2--1-3, 5-2--S-3
for search (cutoff date), 5-2
Tracking Payments, 4-8, (sample form, II-3)
Trade Secrets. See Confidential Business Information
Voluminous Records, 3-6, (sample letter 1-2)
Waivers* See Fee Waivers
Wells, data on, 7-10
Withholding Records. See Records, Withholding.
See also Denials
U.S. Environmental Protection Agency
Region V, Library y
230 South Dearborn Street
^'^o. Illinois 60604
*U.S. ,"VERt*ttCT PRINTING OFFICE:1986 620-518
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