United States Office of Executive
Environmental Protection The Secretariat
Agency Administrator
Freedom of Information
m EPA 1550 - Freedom of
Information Act
Manual
1992 Edition
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CHECKLIST OF EPA TRANSMITTALS
FREEDOM OF INFORMATION ACT MANUAL — 1992 EDITION
When kept current, this checklist permits the user to see at a glance which transmittals have been filed.
SERIES
NUMBER
DATE
INI-
TIAL
SERIES
NUMBER
•
DATE
INI-
TIAL
SERIES
NUMBER
DATE
INI-
TIAL.
EPA Form 1315-4 (R»v. 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 1-3
6. Responsibilities 1—4
7. Delegation of Authority 1-5
8. Accountability 1-6
9. Overview of the FOIA Process 1-7
CHAPTER 2: LOGGING, ROUTING AND FILE-KEEPING
OF FOIA REOUESTS 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
Log 2-3
CHAPTER 3: GUIDANCE TO ACTION OFFICES
ON INITIAL RESPONSE TO REOUESTS 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—3
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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Freedom of Information Act Manual 1550
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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. •Categories of Request 4-2
c. Determining the Request Category .. 4-2
d. Fees to be Charged 4-3
e. Evaluating the Determination 4-4
f. Calculating the Fees 4—5
g. Costs Not Chargeable 4-7
h. Assuring Payment 4-8
i. Prepayment of Fees 4-8
j. Billing 4—9
2. Public Interest Fee Waivers
or Reductions 4-14
a. General Requirement 4-14
b. Policy 4-14
c. Procedures 4—14
d. Assistance in Making Decisions .... 4—16
e. Criteria 4-16
f. Reduction in Fees 4-21
g. Public Participation
Requirements 4-22
h. Appeals 4—22
i.. Court Review of Denials 4-23
3. Administrative Fee Waivers 4-23
4. Delinquent Requesters 4-23
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 Be Withheld 6-1
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CONTENTS
(continued)
Tab/Page
3. Prior Disclosure 6—2
4. Time Frame 6-3
5. Denial Letter 6-4
6. Partial Denial 6—6
7. Recordkeeping 6-7
CHAPTER 7: EXEMPTIONS AND EXCLUSIONS G 7-1
1. Overview 7—1
2. The Nine Exemptions 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 inteL 9 - and Intra-Agency
Memoranda 7—3
f. Exemption 6 Personal Privacy 7-8
g. Exemption 7 Records Compiled for Law
Enforcement Purposes 7—12
h. Exemption 8 Records of Financial
Institutions 7-14
1. Exemption 9 Geological/Geophysical
Information 7—14
3. Exclusions .... 7—14
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 8-5
5. Previous Confidentiality or
Class Determination 8-6
6. Disclosure with Consent of
Affected Business 8-6
7. Disclosure of CBI Other than
• Under FOIA 8-7
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CONTENTS
(Continued)
Tab/Page
CHAPTER 9: DISCRETIONARY RELEASE I 9-1
1. When to Use
2. When Not to Use
3. Discretionary Release on Appeal
CHAPTER 10: APPEALS J 10-1
1. Right to Appeal
2. Time Frame for Receiving Appeals
3. Time Frame for Responding to Appeals..
4. Procedure
5. Issuing Determinations
6. Judicial Review
CHAPTER 11: ANNUAL REPORT AND RECORDKEEPING K 11-1
1. Annual Report to Congress
2. Evaluations
3. Records Retention Schedules
APPENDIX I : __________________ L
APPENDIX II : ___________ M
APPENDIX III : ___________ N
APPENDIX IV : _______________ 0
APPENDIX V : _________________________ P
APPENDIX VI : _____________________________
___ Q
9-1
9—1
9—1
10—1
10—1
10—1
10—2
10-3
10—4
11—1
11—3
11—4
SAMPLE LETTERS/MEMOS
SAMPLE FORMS
FOIA STATUTE
EPA REGULATIONS
RECORDS RETENTION SCHEDULES
CONTACT LIST OF FOl PERSONNEL AT
EPA.
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Tab A - General
Information
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Freedom of Information Act Manual 1550
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CHAPTER 1: GENERAL INFORMATION
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.
All documents containing policies, procedures and guidance
relating to public access to Agency records must be submitted to
the Agency Freedom of Information (FOl) Officer for review and
concurrence prior to issuance and implementation.
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 is an agency record ? “Record” means any
document, writing, photograph, sound or magnetic
recording, drawing, computerized records (e.g. floppy
disks, databases, etc.), or other similar thing by’
which information has been preserved, from which the
information can be retrieved and copied, and over
which EPA has possession or control. It may include
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copies of the records of other Federal agencies. 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 FOTA
can include any individual (including non-U.S.
citizens), corporation or association, public
interest group, and local, State or foreign
government.
4) What requests are not treated under FOIA . Requests
from Federal agencies, the General Accounting Office,
or the Congress (i.e., the Speaker of the House, the
President of the Senate, or the Chair of.a committee
or subcommittee) are not FOIA requests (see Chapter
3, Section 1 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
singularly or in combination for a given request:
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 exemptions or the exclusion section of FOIA.
2) Withholding documents . An office may withhold
records only if they fall under one of the nine
exemptions or the exclusion section 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 (with the exception of 7(C) or (D)) of FOIA
(e.g. internal agency rules, inter— and intra—agency
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memos, and records or information compiled for law
enforcement purposes) . 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 not 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 FOl
Office receives the request. Excluded from that period is any
time taken by the requester to provide EPA with additional
information needed to identify the records or the time required
by the Agency to secure prepayment of fees or assurance of
payment.
b. Appeals. Any person whose request for one or more
existing, located EPA records has been denied in whole or in part
has a right to appeal the determination. This appeal should be
mailed to the Agency FOl Office no later than 30 calendar days
after the day the requester receives the Agency’s denial. 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 workdays is taken for
issuing the initial determination, an extension taken during the
appeal period can only be for seven workdays 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,
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cite the reasons for the extension, and give the date by which
the Agency reply will be made.
6. RESPONSIBILITIES
a. Agency P01 Office. Coordinates and oversees the Agency
FOIA program, develops and reviews FOIA procedures, policies and
guidance, provides advice to Agency FOl personnel in the program
and Regional offices, coordinates initial fee waiver decisions,
prepares the Annual FOIA Report to Congress, routes and tracks
FOIA requests, monitors Agency FOIA activities, maintains
official and public FOIA files, monitors quality and timeliness
of responses, and provides training or training opportunities to
Agency FOl personnel.
b. Office’ of General Counsel (OGC). Provides legal advice
and training on FOIA, issues appeal determinations, final
confidentiality determinations, and fee waiver appeal
determinations, drafts FOIA regulations, provides concurrence on
application of “Glomar ” responses and reliance on FOIA exclusions
and serves as liaison between EPA and the Department of Justice
on FOIA litigation.
c. Office of Communications, Education and Public Affairs.
Makes discretionary release determinations on Agency documents on
appeal.
d. Program Office 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 FOl Office or OGC).
e. Regional FOI Offices. 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), coordinate initial fee waiver decisions,
submit materials for the annual FOIA report, keep official FOIA
files, monitor quality and timeliness of responses, and provi.de
training and current information to Regional FOl personnel.
f. Offices of Regional Counsel. Provide legal advice and
guidance on FOIA questions and initial fee waiver decisions to
regional personnel, issue final determinations on business
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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 for Collection, and issue
initial 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 FOl
Offices. Collect fees related to FOIA requests.
7. DELEGATION OF AUTHORITY .
a. Authority to Issue FOIA Policies and Procedures. The
Agency Freedom of Information Officer is the Agency official
authorized to issue policies, procedures and guidance relating to
the Freedom of Information Act Program. All Headquarters and
Regional Program documents containing policies, procedures and
guidance relating to public access to Agency records must be
submitted to the Agency FOl Officer for review and concurrence
prior to issuance and implementation.
b. 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 denials based solely on a
determination by the action office that the information requested
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may be entitled to confidential treatment (40 CFR 2.204(d) (1))
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 FOl Office and with the FOl Coordinator (if
appropriate). An example of a redelegation memorandum is
available from the Agency FOI Office.
c. 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 of records and fee waiver denials.
This authority has been redelegated in writing to the
Deputy General Counsel and to the Associate General
Counsel for Contracts, Information and General Law.
These redelegations are on file in the Office of
General Counsel and the Agency FOl Office.
2) The Associate Administrator for the Office of
Communications Education and Public Affairs is the
Agency official authorized to review records for
discretionary release on appeal as required (see
Chapter 9). This authority may be redelegated to the
Deputy Associate Administrator for the Office of
Communications, Education and Public Affairs.
8. 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 with-
holding 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.
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The Whistleblower Protection Act of 1989 also provides that
the Special Counsel of the Merit Systems Protection Board will
investigate arbitrary and capricious withholding under the FOIA.
This provision does not require an administrative or court
decision prior to investigation. Sanctions for violation of this
provision may include removal, reduction in grade, debarment from
Federal employment for a period not to exceed 5 years, suspen-
sion, reprimand, or an assessment of a civil penalty not to
exceed $1,000.
9. OVERVIEW
This section provides a checklist for responding to EPA’s
FOIA process. Offices may find this useful as a summary of the
steps in the process.
a. Checklist for Responding to a FOIA Request
1) Read the request .
o Is it a request for records (i.e.,
a FOIA request) or is it a request
for information (i.e., a public
inquiry)?
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?
2) Determine the Category of the Request .
o Is the identity of the requester clear?
o How will the requester use the records,
requested?
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o Does the identity of the requester or
the use of the documents requested
need further clarification?
3) Resolve c uestions about fees with the reauester .
o Has the requester indicated a willingness to
pay the cost of searching for, reviewing and
copying records, as ‘appropriate?
o Has the requester asked for a fee waiver?’
o Should you obtain prepayment. or an assurance, of
payment?
o. Have you charged the appropriate fees for the
assigned category?
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?
5) Review the records . ‘ ‘ ‘
o Are there any exempt records or portions of
records?
o Do any of the records contain confidential
business information (CBI)?
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6) Prepare the response .
o Itemize records or portions of records to be
disclosed.
o Itemize records or portions of records to be
withheld and cite the statutory authority for
withholding them (i.e., applicable exemption(s)).
o Include names and titles or positions of each
person responsible for the denial.
o Include procedures for appealing the denial.
7) Purge exempt portions of information .
o 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 the fee
eciuals $25.00 or more) .
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 FOl Officer.
o Send one copy of the response to the FOl
Coordinator (if appropriate).
o Promptly send three copies of the bill (if
appropriate) to the Servicing Financial Office,
along with a copy of the initial.request and
response.
o Maintain a copy of the withheld records for 60
days so they can be made available promptly upon
request to the Office of General Counsel in the
event of an appeal.
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Tab B - Logging, Routing
and File-Keeping of
FOIA Requests
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Freedom of Information Act Manual 1550
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CHAPTER 2: LOGGING, ROUTING AND FILE-KEEPING OF
FOIA REQUESTS
1. PROCEDURES FOR AGENCY FOl OFFICES REGARDING INITIAL HANDLING
OF REOUESTS
a. Log the Request. A request delivered to either the
Agency or Regional FOl Office is:
o date stamped,
o assigned a Request Identification Number (RIN),
o assigned a due date for response,
o assigned a fee category,
o entered on the FOIA Request Log,
o attached to a completed FOIA Control Form,
o attached to a Bill for Collection Form, and
o delivered within 24 hours (preferably handôarried) to
the office responsible for preparing the reply.
b. Acknowledge the Request. Upon receipt of a FOIA request,
the Agency or Regional FOl Office should acknowledge receipt of
the request to the requester immediately after carrying out the
log—in procedures described above. The acknowledgement informs
the requester of the date of receipt and the assigned RIN
number.
c. Multiple Responsible Offices. If more than one office
will provide material for a reply, the Agency or Regional FOl
Office may coordinate the overall response, designate a lead
action office to coordinate the reply and billing, or instruct
each office to prepare separate replies.
d. Route the Request.
1) Route a Request from HO to Regional Offices . When a
request is routed from HQ to the Regional FOI Office,
the Agency FOl Office takesthe steps outlined in l.a
and 1.b above (assigning the RIN number, logging and
acknowledging the request) and telecopies the request
to the Regional FOl Office for proper routing within
the Region. The Regional Office should not assign
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the request a Regional RIN number, since the Agency
FOl Office has already assigned a RIN number and two
different RIN numbers 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 RIN numbers may both be carried on the
request.
2) Route a Request from Regional Offices to HO . If a
Regional FOl 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 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 FOl Office.
The Agency FOl 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 receives correspondence directly that is identifiable as
a FOIA request, the recipient should immediately handcarry the
request to the Program FOI Coordinator. The FOI Coordinator in
turn promptly handcarries the request to the appropriate FOI
Office. NOTE: No response should be sent out until the office
is actually assigned responsibility by the FOI Office to respond
to the request.
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b. Field Offices. If a field office located outside the
geographical area of the Agency or Regional FOl Office receives a
FOIA request directly, it should telephone the appropriate FOl
Office on the same day to obtain a RIN number. Once the FOI
Office assigns a RIN number, 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 (if
appropriate), to the proper FOI Office. Copies of the Bill for
Collection Form, initial request and response 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 FOIA Control Form, the Agency’s
response, the Bill for Collection Form (if
appropriate), follow—up correspondence., any appeal
and appeal determinations, and any intra-agency
communications concerning the request.
2) Public File . Each FOl 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 . FOl 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) Reguest Log . Each FOl Office shall maintain a FOIA
Request Log with personal information purged .
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5) Action Office Files . Each action office shall
maintain the incoming request, FOIA Control Form, 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.
b. Disclosure of FOIA 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 the FOIA requires disclosure. The FOIA
requires disclosure of certain Agency FOIA files
which’ have been purged of personal information (e.g.,
Public File, Request Log). 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 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:
o 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).
o Any other information, such as confidential
business information or intTernal communications
reflecting Agency deliberations, which is exempt
from disclosure under’ ‘the FOIA (see Chapter 7).
NOTE: Corporate account numbers should also be
purged.
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Tab C - Guidance to Action
Offices on InitlaiResponse
to Requests
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Freedom of Information Act Manual 1550
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CHAPTER 3: GUIDANCE TO ACTION OFFICES ON INITIAL
RESPONSE TO REQUESTS
1. MAKE SURE THE REOUEST FALLS UNDER FOIA
a. General Guidelines. Always contact the Agency or
Regional FOl Office as appropriate when there is doubt with
respect to the cases described below.
1) Inquiries for Documents that are not Aqency 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.
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 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
inust’be in writing.
1) If the record is unquestionably releasable and
readily available, (e.g., EPA publications, press
releases, information sheets prepared for general
distribution), 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 submit a written request to the
appropriate Agency or Regional FOl Office.
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NOTE: Whenever there is any doubt about the releasability or
the availability of information requested orally, ask that the
request be made in writing.
c. Responding to Requests from Other Federal Agencies. EPA’s
policy is to expedite the flow of information to other Federal
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.
NOTE: If the records being requested would normally be
withheld under FOIA, or if they may contain Confidential Business
Information, contact the appropriate legal office.
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. In all cases the action office should work with the
Congressional Liaison Office and Congressional Correspondence
Office.
1) A written request from an individual Member of
Congress is treated as a FOIA request (see COntact
List, Appendix VI).
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
concerning matters within their jurisdiction. Such
requests are not processed as FOIA requests.
e. Responding to Requests from the General Accounting Office
(GAO). Requests from GAO are not FOIA requests. All responses
should be coordinated with EPA’s GAO Liaison Office (see Contact
List, Appendix VI).
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.
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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.
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? Alter-
natively, 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?
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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 always
Agency records.
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.
o 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,
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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.
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 calenda
could be destroyed at any time by the
supervisor.
NOTE: When calendars are maintained on a Local
Area Network (LAN) and can be accessed by
others, the calendars are 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.
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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.
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.
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 FOl 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
costs (which may include search, copying and review depending on
the category of the request) 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.
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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 requested are believed to be within EPA’S
possession but cannot be obtained promptly . In those
rare instances when a record cannot be obtained
promptly 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).
3) Some or all of the records exist but are in the
possession of another EPA office . In this case,
promptly contact the appropriate FOl Office for
rerouting or coordinating of 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 confirmation to the FOl 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
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request is referred to another agency, the requester
should be notified in writing with a copy sent to the
appropriate FOl 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 FOl 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 and include appeal language (see
sample letter E, appendix I). Send a copy to the
appropriate’FOI Office so that the request may be
closed out of the FOIA tracking system. NOTE: The
Agency does not consider this response to be a
denial, but since such decisions can now 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. If the decision is
appealed, the action office will be required to
conduct a further search and confirm in writing to
the Office of General Counsel that no records exist.
8) The records exist but are located at the Federal
Records Center . EPA records that have been retired
to the Federal Records Center for storage are still
considered EPA records. These records must be
obtained and processed according to normal FOIA
procedures. (See section c.2above.)
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9) 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
FOl Office, so that the request may be closed out.
10) 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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Tab D - Fees and
Fee Waivers
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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, duplication and review. In some cases,
these costs are not charged. The FOIA also provides for a public
interest fee waiver or fee reduction. The requirements for these
waivers are listed in Section 2 later in this Chapter.
a. Initial Review
1) The action office should first estimate as accurately
as possible EPA’s search, review and copying costs,
if appropriate, (using the fee schedule in Section
l.f 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. The Financial
Management Division has determined that it costs
$25.00 to bill and collect payment. If the fees are
exactly $25.00 or more, the entire amount will be
charged.
3) If the request falls within one of the following
categories, fl2 fees will be charged. (Note that some
of the categories are not considered as requests
subjeôtto FOIA [ see Chapter 3]).
o 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.
o Requests by the Congress.
o Requests by another Federal agency including the
General Accounting Office.
o Requests by an EPA contractor or assistance
recipient (e.g., a grantee) when the records are
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needed in order to perform work required by the
contract, grant or cooperative agreement.
4) If the request asks for a public interest fee waiver
or reduction in fees, the action office, in
conjunction with the FOl Office and the appropriate
legal office, should determine whether the fee waiver
or fee reduction request should be granted. (See
Section 2, page 4-14)
b. Categories of Requests. All requests must be assigned to
one of the following four categories:
o Commercial Use
o Educational and Non-Commercial Scientific Institution
o Representative of the News Media
o All Other
Each category of request has a corresponding fee level. How
requests should be categorized and the fee level associated with
each category are outlined below.
c. Determining the Category of the Request. In determining
the category of a request, careful consideration should be given
to both the identity of the requester and the requester’s
intended use of the information requested. To help the FOl
Office make an accurate determination of a request’s category,
the following definitions are provided.
Commercial Use : The term refers to a request from or on
behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interests of the
requester or the person on whose behalf the request is made.
Non—Commercial Scientific Institution : The term refers to an
institution that is not operated on a commercial basis as
that term is defined above and which is operated solely for
the purpose of conducting scientific research, the results of
which are not intended to promote any particular product or
industry.
Educational Institution : The term refers to a preschool, a
public or private elementary or secondary school, an
institution of undergraduate higher education, an institution
of graduate higher education, an institution of professional
education and an institution of vocational education, which
operates a program or programs of scholarly research.
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Representative of the News Media : The term refers to any
person actively gathering news for an entity that is
organized and operated to publish or broadcast news to the
public. The term news means information that is about
current events or that would be of current interest to the
public.
d. Fees to be Charged. Using the above definitions as a
guide in categorizing a request, fee levels will be determined
based upon the following schedule:
1) Commercial Use Requests . If the request is for
records for a commercial use, the requester is
charged for the time spent searching for the
requested records, reviewing the records to determine
whether any should be disclosed and for the cost of
each page of duplication . Fees will also be charged
for search and review of records even if there is
ultimately no disclosure of records. If total fees
are less than $25.00, no charge will be made (see
administrative fee waiver, page 4—23).
2) Requests From Educational and Non—Commercial
Scientific Institutions . If the request is from an
educational or non-commercial scientific institution
involved in scholarly or scientific research and is
not for a commercial use, the requester will only be
charged for the duplication cost of the records. No
charge will be made for the first 100 pages of
duplication or for the time spent searching for and
reviewing responsive records. Final charges should
be calculated by totalling the cost of duplication
and then subtracting the cost of 100 pages of
duplication. If this amount is less than $25.00, no
charge will be made (see administrative fee waiver,
page 4—23).
3) Requests From Representatives of the News Media . If
the request is from a representative of the news
media and is not’ for a commercial use, the requester
will only be charged for the duplication cost of the
records requested. No charge will be made for the
first 100 pages of duplication or for the time spent
searching for and reviewing responsive records. The
final charge should be calculated by totalling the’
cost of duplication and then subtracting the cost of
100 pages of duplication. If this amount is less
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than $25.00, no charge will be made (see
administrative fee waiver, page 4-23).
4) All Other Requests . If the request cannot be
categorized under the three types of requests defined
above, the requester will only be charged for the
search and duplication costs of the records
requested. No charge will be made for the first two
hours of search time and the first 100 pages of
duplication or the time spent reviewing the record to
determine whether it should be disclosed. The final
charges should be calculated by totalling the fees
for search time and duplication and then subtracting
the cost of two hours of search time and 100 pages of
duplication. If this amount is less than $25.00, no
charge will be made (see administrative fee waiver,
page 4-23).. Fees will be charged for the search of
records even if there is ultimately no disclosure of
records.
e. Evaluating the Determination. Once the FOl Office has
carefully considered both. the identity of the requester and the
intended use of the information, an accurate determinatiàn of a
request’s category will usually be made.
o Example 1 : A local newspaper requests the release of
records for use in a story they are doing on an
environmental issue. Such a request should be
considered as being made by a representative of the
news media and not for commercial use. The newspaper
should be charged accordingly (i.e., for the
duplication costs of the records excluding the first
100 pages).
At the same time the newspaper has been cited by EPA
for a number of violations at one of its facilities.
The newspaper has requested records to determine
whether they should bring legal action against the
Agency. Though the request is from a representative
of the news media, the records requested are for a
commercial use. The request should be treated as a
commercial use request and the newspaper should be
charged accordingly (i.e., for the search, review and
duplication costs of the records).
o Example 2 : A professor at a graduate institution of
• higher learning has submitted two separate requests
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for records. One request is for records that will be
used in a university—sponsored research project.
This request is made on behalf of an educational
institution involved in scholarly research. The
requester should be charged for the duplication costs
of the records excluding the first 100 pages.
The second request is for information the professor
is going to incorporate into a database which he
plans to market to the general public. The infor-
mation requested is for a commercial use and the
professor should be charged accordingly (i.e., for
the search, review and duplication costs of the
records).
o Example 3 : A university student requests records
that she needs to complete her doctoral dissertation.
Though the student is enrolled at an educational
institution, her request for records is being made
solely for her personal use and not on behalf of the
university which she attends. Also, the records
requested are not for commercial use but for a
scholarly purpose. The request should be categorized
under all other requests and the requester should be
charged accordingly (i.e., for the search and
duplication costs of the records excluding the first
two hours of search time and the first 100 pages of
duplication).
f. Calculating the Fees. After determining the category of
the request and the corresponding fee level, a calculation of
fees should be made. The fee schedule is as follows:
1) Search Time . Search time——both manual and computer— —
includes all time spent looking for material that is
responsive to a request including page—by—page or
line—by-line identification of material within
documents. Charges for search time will be made as
follows:
o Manual search for records.
Personnel GS-8 and below . $4.00 will be charged
for each 1/2 hour or any portion thereof.
Personnel GS-9 and above . $10.00 will be charged
for each 1/2 hour or any portion thereof.
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(Example: If a GS-ll employee spends 40 minutes
locating responsive records, the cost for
searching is $20.00.)
Contractor . When a search for records is
performed by a contractor, requesters will be
assessed actual direct charges up to but not
exceeding $10.00 per 1/2 hour.
o Computer Search for records.
Personnel GS-8 and below . $4.00 will be charged
for each 1/2 hour or any portion thereof.
Personnel GS-9 and above . $10.00 will be charged
for each 1/2 hour or any portion thereof.
PLUS
Computer System Time . Charges will be made for
actual computer resource usage as indicated on the
computer run printout, when available.
o Other Search Costs . bther search costs may
include, but are not limited to, computer system
time, contractor programming 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.
2) Review Time . Review time is the time spent examining
records responsive to a request to determine whether
any portion of the records should be withheld. It
also includes the process of excising and otherwise
preparing a document for release. Review time can
only be charged to commercial users . (NOTE: Review
time does not include the time spent resolving legal
or policy issues regarding the application of
exemptions).
Personnel GS-8 and below . $4.00 will be charged
for each 1/2 hour or any portion thereof.
Personnel GS-9 and above . $10.00 will be charged
for each 1/2 hour or any portion thereof.
3) Duplication Costs
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o Paper Copy of Paper Original . 15 cents per
copy.
o Computer Printout . 15 cents per page.
o Other Duplication Costs . Other duplication
costs may include, but are not limited to, the
reproduction of photographs, microfilms,
microfiche, 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 EPA.
NOTE: Two-sided copying is considered 2 copies
or 30 cents.
4) Certification or Authentication of Records . $25.00
will be charged per certification or authentication
regardless of the volume of records being certified
or authenticated.
g. Costs not chargeable. No charge may be made:
1) for the delivery of records to the requester.
2) for the time spent purging documents of exempt
information (except for commercial use requests).
3) for the time spent duplicating records (this is
included in the 15 cents per copy charge).
4) for preparing and reviewing the FOIA response.
5) 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.
6) for responding to a request by an individual for one
copy of a record retrievable by the requesting
individual’s name or personal identifier from a
Privacy Act System of records.
h. 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 fee waiver has not been requested,
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(see Section 2, page 4-14), 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. Normally, the requester is not required to make the
actual payment in advance (see section i. below). 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 assurance 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
Conversation Record Form, OF—271).
3) The records may be released only after the requester
has agreed (verbally or in writing) to pay the fees.
4) Time used by the action office to secure pre—payment
or assurance of payment is excluded from the
mandatory 10—workday response period.
5) The action office must keep the appropriate FOl
Office apprised of all actions taken with respect to
the payment of fees. This includes furnishing a copy
of all correspondence to the FOl Office.
i. Prepayment of Fees. An action office may require a
requester to make a prepayment of fees equal to the estimated
amount only if:
1) a requester has previously failed to pay a fee in a
timely fashion (i.e., within 30 days after the date
of billing; see Section 4, page 4—23 on Delinquent
Requesters), or
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2) the action office estimates or determines that the
actual amount of fees will exceed $250.00 and the
requester has no history of payment. If the
prepayment is not received within 30 days after the
date of billing, the request will not be processed
and will be closed. (NOTE: If the fees will exceed
$250.00 and the requester has a history of prompt
payment of FOIA fees, the action office will notify
the requester of the anticipated charges and obtain
an assurance of payment. If no assurance is given,
the request will not be processed and will be
closed).
j. Billing Requesters
1) Billing Procedures . If the requester has assured
payment of fees, 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 spme 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:
o Enter U.S. Environmental Protection Agency in the
block captioned “Bureau/Office for Remittance
Payable.”
o Enter the lock box address in the block captioned
“Address for Mailing Payment.” (See Lock Box
Addresses under Section j.4, page 4-13.)
o Enter the assigned RIN number in the block
captioned “Bill No.”
o Enter the date of response in the block captioned
“Date.” (The Bill for Collection should be dated
the same date as the reply letter.)
o Enter the name and address of the requester in the
inset block under the heading “Payer.”
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o In the block under the heading “Description,” type
“FREEDOM OF INFORMATION ACT PAYMENT REQUEST.”
Give all the details relating to information
requested and fees charged for search, review or
duplicating records (as appropriate) including
such items as : computer system time; contractor
computer programming time; reproduction of
photographs, microfilms, or magnetic tape;
computer printouts; and transportation of records.
o Enter the total amount of payment requested in the
columns under the heading “Amount Due.”•
o Enter, at the bottom of the form, the name and
telephone number of the responsible official to
contact if there are any questions.
o Include with the bill the Fee Schedule and Payment
and Procedures form.
o Make sure to remind the requester in the response
letter to refer to the RIN number when paying the
bill.
A Sample Bill foi collection Form is attached at
Appendix II.
2) Simultaneously Distribute the Bill for Collection as
follows :
o Mail the original to the FOl requester along with
the prompt payment procedures form, reply letter
and records.
o Forward the first copy (Pink-Official Receipt),
the second copy (Blue-Accounting Copy), and the
third copy (Green-Administrative Billing Copy (1))
to the appropriate Headquarters Financial
Management Office or the Regional Financial
Management Office (Attention: Accounts Receivable)
(see Contact List, Appendix VI).
o Forward the fourth copy (Green-Administrative
Billing Copy (2)) to the appropriate Freedom of
Information Office together with two copies of the
response letter.
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o 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
paid timely or has no history of payment and the
action office estimates the fees will exceed $250.00,
an advance payment may be requested before proceeding
with the search for records. If the action office
estimates or determines that the fees are likely to
exceed $250.00, the assurance of payment should be
sought when the requester has a record of prompt
payment. If the requester •has no history of payment,
the action office will require an advance payment of
an amount up to the full estimated amount. To do
this, the action office 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 H, 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 j.4, page 4-13). Ask the requester to
please include the RIN number on the check or money
order.
The action office simultaneously forwards copies of
the interim response and Bill for Collection for
prepayment to the appropriate Financial Management
Office and the appropriate 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, reviews and duplicates the records,
calculates the actual fees, and forwards the
requested records to the requester.
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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 has 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 shall
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 j.6,
page 4-14.
4) 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 for 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.
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LOCK BOX ADDRESSES
EPA - Washington Headquarters EPA - Region 6
P.O. Box 360277M . P.O. Box 360582M
Pittsburgh, PA 15251 Pittsburgh, PA 15251.
EPA - Region 1 EPA - Region 7
P.O. Box 360197M P.O. Box 360748M
Pittsburgh, PA 15251 Pittsburgh, PA 15251
EPA - Region 2 EPA - Region 8
P.O. Box 360188M P.O. Box 360859M
Pittsburgh, PA 15251 Pittsburgh, PA 15251
EPA - Region 3 . EPA - Region 9
P.O. Box 360515M P.O. Box 360863M
Pittsburgh, PA 15251 Pittsburgh, PA 15251
EPA - Region 4 EPA - Region 10
P.O. Box 100142 P.O. Box 360903M
Atlanta, GA 30384 Pittsburgh, PA 15251
EPA - Region 5
P.O. Box 70753
Chicago, IL 60673
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 FOl Office, as appropriate, and to the
Headquarters or Regional Financial Management Office,
as appropriate. THE BILL FOR COLLECTION MUST BE
DATED THE SANE 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
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being assessed. ( The.Financial Management Offices
will work with Headquarters and Regional FOl 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 (see sample memo K,
Appendix I). 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 FEE REDUCTIONS
a. General Requirement. FOIA provides that documents shall
be furnished without any charge or at a reduced charge if
disclosure of the information is in the public interest because
it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not
primarily in the commercial interest of the requester.
b. Fee Waiver Policy. Requesters asking for a fee waiver or
reduction must present information in support of such a request.
The mere fact that a fee waiver or reduction has been requested
does not automatically mean that a fee waiver or reduction should
be granted . EPA’S policy in this regard is that if all the
relevant information in support of a fee waiver or reduction has
been supplied by the requester and such information demonstrates
that the statutory requirements have been satisfied, the fee
waiver or reduction will be granted.
c. Procedural Guidelines
1) Initial Decision on Waiver . The action office
assigned responsibility for responding to an initial
request, in conjunction with the FOl Office and legal
office if guidance is needed, 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.
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2) Obtain Needed Information . The FOl Office will
conununicate with the requester if additional
information is needed to determine whether the fee
waiver or reduction is to be granted (see Section
2.e, page 4-16 and sample letter I, Appendix I).
Upon receipt of additional information the FOl Office
will send a copy to the action office and coordinate
the fee waiver determination.
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 (see
sample letter J, Appendix I). The requester should
be informed that if an appeal is made, the appeal
letter should be addressed to the Agency FOl Officer.
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 Must Be Written . 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.
7) Precedents. FEE WAIVER DETERMINATIONS ARE MADE ON A
CASE BY CASE BASIS . 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
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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 FOl Coordinator or FOl Officer. If
additional consultation is needed, the action office and FOl
Coordinator orFOl Officer should contact the Office of General
Counsel.
e. Substantive Criteria for Fee Waivers. Requests for
public interest fee waivers or reductions must be decided on a
case—by—case basis. A request for a reduction or waiver of fees
can only be granted if it meets the following two requirements:
1) disclosure of the information is in the public
interest because it is likely to contribute
significantly to public understanding of government
activities and operations and
2) it is not primarily in the commercial interest of the
requester.
The six enumerated factors elaborated upon below are those
which the new statutory standard, by its plain language, requires
action offices to take into consideration in determining whether
the two basic requirements for a fee waiver or reduction are met.
A careful analysis of the factors, in sequence, is necessary to
lead to a proper determination of whether a request satisfies the
statute’s specific “public interest” requirement.
1) The Subject of the Request: Whether the Subject of
the Requested Records Concerns “the Operations or
Activities of the Government. ”
The action office should consider whether the subject
of the requested records concerns the operations or
activities of the government. The subject matter of
the requested records must specifically, concern
identifiable operations or actiyities of the federal
government.
While in most cases records possessed by EPA will
likely meet this threshold, there are cases in which
requested records do not directly concern government
operations or activities, and therefore would fail to
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meet it. An ‘é-xample can be records in the Agency’s
possession which often are sought for their intrinsic
informational content alone. Requests seeking
records for their intrinsic content rather than their
value with respect to specific government operations
or activities, are not usually expected to contribute
to public understanding of those operations or
activities. In the case of such requests, whether
for records submitted to EPA or generated by it, this
threshold consideration is not satisfied.
2) The Informative Value of the Information to be
Disclosed: Whether the Disclosure is “Likely to
Contribute” to an Understanding of Government
Operations or Activities .
Next, the action office should determine whether the
disclosure is likely to contribute to an under-
standing of government operations or activities.
This requires an analysis of the substantive content
of the disciosable portions of the requested records
in order to determine whether their disclosure will
in fact be informative regarding the particular
government activities or operations that are,
connected to the subject matter of the request. The
action office is in the best position to make this
determination.
Although the subject matter of a FOIA request may
directly concern certain’ government operations or
activities, if the records (or record portions) which
can be released in response to that request contain
nothing that is meaningfully informative on such
operations or activities, then the requested FOIA
disclosure would not contribute to an understanding
of them. Further, even where information is
meaningful in and of itself, it does not necessarily
hold great potential for contributing to increased
public understanding. Thus, the foundations for a
proper fee waiver analysis must be a close appraisal
of the information to be disclosed with careful
attention to the potential that it holds for
contributing to the public understanding of
government operations or activities.
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When making this appraisal, the action office should
also consider whether the requested information is
already in the public domain in substantially
identical form. If it is, then disclosure of the
information would not be likely to contribute to an
understanding of government operations or activities,
as nothing new would be added to the public record.
3) Contribution to Understanding of the Subject by the
Public Likely to Result from Disclosure: Whether
Disclosure of the Requested Information will
Contribute to “Public Understanding. ”
Next, the action office should consider whether
disclosure will contribute to the understanding of
the public at large, as opposed to the individual
understanding of the requester or a narrow segment of
interested persons. The proper focus must be on the
contribution to public understanding, rather than
personal benefit to be derived by the requester.
Thus, a requester’s indigence, for example, does not
entitle him to a fee waiver; there must be a credible
showing of a contribution to the public’s under-
standing that would result from the disclosure.
For purposes of this analysis, the identity of the
requester should be considered in order to determine
whether the requester is in a position to contribute
to public understanding through the requested
disclosure. A requester’s identity and qualifi-
cations (e.g., expertise in the subject area and
ability and intention to disseminate the information
to the general public) should be evaluated.
Specialized knowledge is often required to extract,
synthesize and effectively convey information to the
public and requesters vary in their ability to do so.
Where not readily apparent, requesters should be
asked to describe with specificity their qualifi-
cations, the nature of their research, the purpose
for which they intend to use the requested
information, and their intended means of
dissemination to the public.
Bare assertions by requesters that they are
“researchers” or “have plans to author a book” are
insufficient evidence that a contribution to
understanding by the general public will ultimately
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result from a disclosure. Generally, representatives
of the news media will be able to satisfy this
statutory requirement.
NOTE: This consideration is not satisfied simply
because a fee waiver request is made by a library or
other record repository, or a requester who intends
merely to disseminate information to such an
institution. Such requests, like those of other
requesters, should be analyzed to identify a
particular person who will actually use the requested
information in scholarly or other analytic work and
then disseminate it to the general public; absent
this dissemination, it cannot be determined that
disclosure to the requester will contribute to the
public’s under—standing of government operations or
activities. Thus, such requesters must provide the
same information that an individual would have to
provide to obtain a fee waiver.
4) Significance of the Contribution to Public
Understanding: Whether the Contribution to Public
Understanding of Government Operations or Activities
Will be “Significant. ”
Finally, the action office is required by the statute
to determine whether an identified contribution to
public understanding of government operations or
activities will be a “significant” one, i.e., such
that the general public’s understanding of the
subject matter in question likely will be enhanced by
the disclosure to a significant extent.
This final step in the “public interest” analysis
requires an agency to focus as realistically as
possible on the precise nature of the public
contribution likely to result from a disclosure. It
involves an assessment of the likely impact of the
disclosure on the public’s understanding of the
subject in question, as compared to the level of
public understanding of that subject existing prior
to the disclosure.
The determination of “significance” will require that
the action office’s decision properly turn on
whether the disclosure is likely to lead to a
significant contribution to public understanding.
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This does not permit a separate value judgment as to
whether the information is “important” enough to be
made public, even though it in fact would contribute
significantly to public understanding of the
operations and activities of the government.
If the action office determines that the likely
contribution to public understanding is significant,
then the “public interest” requirement for fee waiver
determinations is fully satisfied.
Once an actjo office is satisfied that the first
requirement for a fee waiver has been met, the
statute then requires a determination of whether
disclosure of the requested information is primarily
in the commercial interest of the requester.
5) The Existence and Maqnitude of a Commercial Interest:
Whether the Requester has a Commercial Interest that
Would be Furthered by the Requested Disclosure .
An action office must first determine as a threshold
matter whether the request involves any commercial
interest of the requester and, if so, determine
whether the requester’s commercial interest outweighs
the public interest. A “commercial interest” is one
that furthers a commercial, trade or profit interest
as those terms are commonly understood.
If the requester’s interest in the records is
unclear, it is entirely proper to consider and draw
reasonable inferences from the requester’s identity
and the circumstances surrounding the request. Where
an action office reasonably believes that such
circumstances suggest the existence of a commercial
interest in disclosure, the requester should be given
an opportunity in the administrative process to
provide further information rebutting such reasonable
inferences or clarifying the circumstances of the
request where necessary.
Where a commercial interest is found to exist, and it
would be furthered through the disclosure, the
magnitude of that commercial interest must be
assessed.
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6) The Primary Interest in Disclosure: Whether the
Magnitude of the Identified Commercial- Interest of
the Requester is Sufficiently Large, in Comparison
with the Public Interest in Disclosure, that
Disclosure is “Primarily in the Commercial Interest
of the Requester. ”
Once it has been determined that the requester has a
commercial interest, the action office must then
determine whether disclosure of the information would
be “primarily” in that interest. This requires a
balancing of the requester’s commercial interest
against the public interest in disclosure.
If the public interest can fairly be regarded as
outweighing the requester’s commercial interest, a
fee waiver or reduction should be granted.
For example, although newsgathering organizations
usually have a commercial interest in obtaining
information, the traditional process of newsgathering
• and dissemination by established news media
organizations, as a rule, should not be considered to
• be “primarily” in their commercial interest. On the
other hand, the disclosure of agency records to data
brokers or others who compile and market government
information for direct economic return can more
readily be considered as primarily in the commercial
interests of the requester, depending on the nature
of the records and the exact circumstances of the
enterprise.
f. Reduction in Fees. If only a portion of the requested
records for which a fee waiver has been requested will meet the
criteria for granting a waiver, a reduction in fees may be
granted. 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; or
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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 that meet the fee waiver criteria.
g. Public Participation Requirements. EPA regulations (40
CFR, Part 25) contain requirementsand suggested program elements
for public participation under the Clean Water Act, the Resource
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).
h. 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 ihformed in writing of the
decision and of the right to appeal the denial by letter
addressed to the Agency FOl Officer. The FOI Officer will
promptly refer any appeal to the Office of General Counsel for a
decision. The Office of General Counsel will review the file and
consult as appropriate with the action office. The review will
be novo , i.e., the request will be reviewed as if it were a
new request.
1) The Office of General Counsel will notify the
requester in writing of its decision. The decision
will normally be issued within ten workdays (see also
Chapter 10 on Appeals). Copies of the decision will
be sent to the action office and the Agency FOI
Officer.
2) A requester may choose to pay fees while appealing a
fee waiver denial and still be eligible for a refund
if the appeal is granted.
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i. 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 court’s de novo review is limited to the
administrative record. The Agency cannot supplement the record
once the matter is in court.
3. ADMINISTRATIVE FEE WAIVERS
a 1 Fees Less Than $25.00 Are Waived. All fees totalling
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. If the
total.fee is less than $25.00, the Agency’s response should
include a statement that the fees are waived as de nminimis .
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) (5) (v), 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. DELINOUENT REOUESTERS
Each month the Financial Management Offices will furnish to
the appropriate FOI Office a list of requesters not submitting
payment within 60 days. The FOl Offices will maintain and share
the delinquent lists. 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 G, Appendix I). Any request made by an individual who
specifies an affiliation with or representation of a corporation,
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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 7.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 must be released unless it falls into
one of the nine exemptions or the exclusions (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 FOl Office. If there has
been a long delay (30 days or more) in responding to the request,
the cut-off date of the search should be moved to the date on
which the search begins. 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 FOl/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 FOl 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.
b. Extensions. Under Section 2.112(e) the 10-workday time
limit may be extended up to an additional 10 workdays if it is
“ absolutely necessary ” because of:
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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 of information;
o the need to consult with another agency or EPA
component.
If an extension is necessary, the responsible action office
should notify the appropriate FOl Office and then contact the
requester in writing (see sample letter L, 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 FOl Office and FOl Program Coordi-
nator.
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 RIN number;
o include an itemized enclosure list; or
o include necessary cc/bcc information for
• recordkeeping purposes;
b. Sample Release Letter. A copy of a sample full release
letter, which acknowledges a positive determination, enclosing
the requested record(s) and index, is included at sample letter
M, Appendix I.
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 sample letter N, Appendix I.
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5. RECORDKEEPING
Whenever a release letter is sent to a requester, two copies
of it should also be sent to the Agency or Regional FOl Office
responsible for tracking the request. In addition, if there is a
fee charged, a copy of the invoice and response should be sent
simultaneously to the appropriate Financial Management Office
(see Chapter 4, Section l.j). Finally, the FOl Program
Coordinator should also receive a copy of the release letter, if
appropriate. Require—ments 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
.HQ 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 exception 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)(l)). In this case, authority may be redelegated to
any EPA employee.
2. WHAT MAY BE WITHHELD
a. FOIA Exemptions. Records must 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 - Records or Information 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
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unintelligible. Section 6 of this chapter (page 6-6) sets out
the procedures for partial denial .
c. Discretionary Release. If a record in EPA’s possession
does not fall into one of the nine exemption categories or
exclusions, its release is mandatory. If the record is legally
exempt by virtue of Exemption 2, 5 or 7 (with the exception of
7(C) or (D)) 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 Rules 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 and deliberative
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.
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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 maybe
withheld.
5) Where a prior disclosure was unauthorized (e.g., a
“leak”), a waiver has not occurred and the records
may be withheld.
4. TIME FRAME FOR DENYING REOUESTS
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 FOl
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 ôollect recOrds rbm
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 L,
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 FOl Office and FOl 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.
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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 RIN number;
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. The itemized list 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 staj itory exemption(s), and the reason(s)
for withholding.
NOTE: An itemized index should not be included
when the denial does not disclose the existence or
non—existence of records, see Section S.c below.
If Exemption S 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. NOTE:
Letters containing general assertions of exemption
5 or 7 without identification of the specific
privilege or sub—section are insufficient. Agency
personnel have a duty to apprise the requester of
the bases for the withholding.
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 position of the EPA employee
responsible for denying a request, if that person
is different from the signer of the determination
letter. NOTE: This requirement is particularly
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important in instances where a request requires
multiple action directed by a lead office;
5) state that the requester has the right to appeal
the initial denial by sending a written appeal to
the Agency FOl 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 cc/bcc information for record—
keeping.
b. Special Circumstances. In some instances, merely
revealing to the requester the existence or nonexistence of
records would mean disclosing information that an exemption is
designed to protect. Under these circumstances action offices
should avoid disclosing the existence or nonexistence of the
records requested. 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.” (See Chapter 7, “Glomar”, page 7—9.) I iQ
such determination shall be issued without the concurrence of
the Office of General Counsel. General and Information Law
Branch .
In certain circumstances action offices may deny the
existence of law enforcement records or information that are
excluded from the provisions of FOIA (see Chapter 7,
“Exclusions” page 7—14). No such determination shall be issued
without the concurrence of the Office of General Counsel,
General and Information Law Branch and the Department of
Justice .
c. Sample Denial Letter. A copy of a sample denial letter
is included at sample letter 0, Appendix I.
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.
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6. PARTIAL DENIAL OF RECORDS
a. Policy. Some requested documents contain both exempt
and non-exempt information. EPA’s FOIA regulations (40 CFR
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, records or information compiled for law
enforcement purposes that contain both exempt and non-exempt
information should be purged of the exempt information, and the
remainder released. The action office should delete only those
portions of the record that would interfere with or harm the
government’s enforcement action and release the portions that
would not harm the enforcement action.
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 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.
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6) Doubts about the intelligibility of a document
after all necessary deletions have been made should
be resolved in favor of release.
7) Normal FOIA fees should be charged for those
requests where records are denied or partially
denied (see Chapter 4, Section l.f).
c. 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
sample letter P , Appendix I.
d. 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. RECORDKEEPING
a. Copies to FOl 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 FOl Office and one
copy should be sent to the FOl 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, copies of the
withheld records and any additional correspondence relating to
the request on file.
NOTE: The action office should be prepared to make the
file available to the Office of General Counsel in case an
appeal is filed. Copies of the withheld records must be
maintained in a separate file for 60 days so they can be
provided promptly to OGC if an appeal is filed.
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Tab G - Exemptions and
Exclusions
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CHAPTER 7: EXEMPTIONS AND EXCLUSIONS
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. 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 FOl or legal office.
FOIA also specifies certain types of information that are not
sub-ject to the provisions of the Freedom of Information Act.
Records that are excluded from FOIA provisions and the manner in
which requests for such information should be handled by action
offices is discussed later in this chapter .
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 — Records or Information Compiled for
Law Enforcement Purposes
Exemption 8 - Records of Financial Institutions
Exemption 9 - Geological 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 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 consistentwith
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) With the Agency’s increased involvement in the
international arena, it is quite likely that we will
have classified records in our possession that are
responsive to FOIA requests.
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 no 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 unwarranted
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 Chapter 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 .
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) One example is 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 regulations elaborating on Exemption 4 are
located at 40 CFR Part 2, Subpart B. See Chapter 8 for a
detailed discussion of procedures to be followed in responding to
requests involving Confidential Business Information (CBI).
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:
o the deliberative process privilege;
o the attorney work-product privilege;
o the attorney-client privilege;
o the government commercial information privilege;
o the expert witness report privilege;
o the investigative report privilege; and
o the confidential informant privilege (see also
Exemption (b) (7) (D)).
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1) Agency Discretion and Waiver . Even though a document
falls under one of the privileges, the Agency encour-
ages the discretionary release of the document,
unless release would significantly harm the Agency
decisionrnaking process. All of these privileges may
have been waived if the Agency has disclosed the
document 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.
o Inter—Agency Records include only those trans-
mitted between Federal agencies, but generally not
those transmitted between Federal and State
agencies.
o Intra—Agency Records are those transmitted within
EPA and include reports prepared by outside
consultants at the request of the Agency. Recom-
mendations 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.)
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. NOTE: Former Administrator Ruckeishaus’
memorandum of October 3, 1984, addresses the
assertion of the deliberative process privilege in
litigation and does not cover the assertion of
this privilege in FOIA matters.
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o Predecisional, Deliberative Documents . Only pre-
decisional, deliberative documents may be with-
held. Predecisional, deliberative documents are
written prior to the Agency’s final decision and
usually contain recommendations or express
opinions on that decision. These documents
typically discuss the pros and cons of the
Agency’s adoption of one viewpoint or another. In
determining whether a document is predecisional,
consider the document’s language and its place in
the Agency’s chain of decisionmaking. Documents
written by a subordinate and transmitted to a
superior are more likely to be predecisional than
those written by a person with final decision—
making authority. (NOTE: As a general rule,
action offices must segregate from the record
those predecisional and deliberative sections and
release the factual portions to the requester.)
o Drafts of Documents are Often Predecisional . They
must be part of the decisionmaking chain and
either (1) contain language which discusses or
debates the decision being made, or makes
recommendations, such as a memorandum from a
subordinate to a superior which discusses the
effects and pros and cons of the decision; or (2)
represent a tentative expression of the Agency’s
position, as in a draft administrative order or
memorandum which is being reviewed prior to the
adoption of a final Agency position.
o Factual Portions of Deliberative Process Documents
Must Ordinarily be Released . The deliberative
process privilege does not allow the withholding
of purely factual portions of documents. Purely
factual portions of these documents must be
released if they can be segregated from the
remainder of the document (see Chapter 6, Section
6). If the facts themselves reflect the Agency’s
deliberations or involve some subjective opinion
which may be reviewed or evaluated and changed,
such factual portions may also be withheld.
o 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
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descriptions of Agency efforts to enforce current
Agency policies. Documents 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.
o 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. The Department of Justice has indicated
that settlement documents may be withheld by
agencies at the administrative level, particularly
where strong policy interests militating against
disclosure are present.
o The Attorney Work-Product Privilege . This
privilege allows the withholding of documents
prepared by, or at the direction of, an attorney
in anticipation of possible litigation (which can
include administrative proceedings). 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 the documents were prepared in reasonable
contemplation of litigation.
Segregable factual materials need not be deleted
from attorney work—product documents since the
facts are generally intertwined with an attorney t 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 t s
evaluation, or reveal his/her strategy or thought
process.
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o 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 application of this
privilege requires that the communications between
the parties be of a confidential nature. Unlike
the attorney work-product privilege, the
availability of the attorney-client privilege is
not limited to the context of litigation. The
privilege still applies when this information is
disseminated within the Agency to persons involved
with the matter in question. However, unre-
stricted distribution within the Agency would
preclude the Agency from claiming the privilege.
o The Government Commercial Information Privilege .
A privilege is available to the government for
information 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 . . . confi-
dential 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 Report Privilege . Another
privilege that is commonly invoked allows the
withholding of records generated by an expert
witness.
o The Investigative Report Privilege . This
privilege has been applied to protect witness
statements in Inspector General investigations.
o The Confidential Informant Statement Privilege .
Statements obtained from confidential informants
such as statements given to the Inspector General
by witnesses who have been granted confiden-
tiality, may be withheld.
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f. Exemption 6 - Personal Privacy. Exemption 6 permits the
withholding of all information about individuals in “ personnel,
medical, and similar files, the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy. ”
1. Threshold test : The record must be a personnel,
medical or similar file. This is a relatively easy
test to meet. Personnel and medical files are easily
identified. The term “similar file” has been very
broadly interpreted to include any information about
a particular individual which is identifiable to that
individual.
o The actual label assigned to the file is of no
significance. Nor does the information have to be
of a highly sensitive or intimate nature.
o If a record can be sanitized so that the identity
of the individual cannot be determined from the
record itself, or from the record in conjunction
with publicly available information, the record is
not a similar file and does not meet the threshold
test for Exemption 6. Accordingly, a sanitized
copy of the record should be disclosed.
2. Balancing test : Information which meets the
threshold test is withholdable under Exemption 6 if
the invasion of privacy resulting from disclosure
would be clearly unwarranted. To determine this, the
individual’s privacy interest must be balanced
against the public interest in disclosure.
Privacy interest : Encompasses the individual’s
reasonable expectation of privacy and control over
the dissemination of personal information about
himself. Individuals have an expectation of privacy
with respect to information which, by its nature, is
personal, embarrassing or otherwise injurious to the
individual. Privacy interests also include the right
to be free from the secondary effects of disclosure
such as harassment or unwanted intrusions even if the
information itself is not inherently harmful.
o Individuals may have a privacy interest in
information which is publicly available, e.g.,
marital status or home address, but there is no
privacy interest in information which is very well
known and clearly in the public domain.
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o Businesses and other entities do not have privacy
rights.
Public interest : There is a public interest in a
particular Agency record if disclosure of that record
sheds light on the operations or activities of the
government. The interest is that of the general
public in knowing what its Government is doing. The
FOIA requester’s identity, personal motives or
interests (including commercial interests) in seeking
the information are not relevant to the issue of
public interest and must not be considered in
determining if a public interest exists.
Balancing process : First, determine if the
individual has any privacy interest in the
information. If there is none, the information must
be released even if there is no public interest.
Second, if there is a privacy interest, determine
whether any public interest in the information
exists. If both privacy and public interests exist,
the competing interests must be weighed against each
other and the stronger interest prevails. If the
privacy interest outweighs the public interest, the
information is exempt under Exemption 6 and may not
be released in the Agency’s discretion.
3. Glomar : Occasionally a FOIA request is worded in
such a way that it would not be possible to deny the
redord under Exemption 6 without revealing the very
information which is protected under the Exemption.
For example, drug counseling records maintained by
EPA’s Employee Counseling and Assistance Program are
normally withholdable under Exemption 6. However, if
EPA denied a FOIA request for such records in
reliance on Exemption 6, the Agency would be
revealing the existence of such records, the very
information which is protected. To guard against
such inadvertent disclosures, the Agency may provide
a “Glomar” response; that is, it would neither
confirm nor deny the existence of records in response
to all requests for counseling records. The
appropriate EPA legal office must be contacted before
responding to the FOIA request in any case in which a
“ Glomar” response might be suitable .
4. Law Enforcement Records : Exemption 6 would normally
be applicable to protect the personal privacy of
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individuals named in law enforcement files if there
is no countervailing public interest. Exemption
7(C), which protects personal privacy in the law
enforcement context, would also be applicable. Since
the test for applying Exemption 7(C) is less
stringent than that of Exemption 6, consideration
should always be given to relying on both exemptions.
See discussion of Exemption 7(C) below.
5. Personnel—Related Records on Federal Employees : EPA
frequently receives FOIA requests for personnel—
related information on current and former Agency
employees. Federal employees have privacy rights
with respect to the personal details of their
employment and there is frequently little or no
public interest in this information. However, other
personnel information on Federal employees is
considered available to the public upon request
because it has been determined by the courts, the
Office of Personnel Management and/or common practice
that there is little if any privacy interest in this
information. Many records, such as employee
applications. (SF 171’s) and official personnel
folders, contain both exempt and non—exempt
information. The following lists describe the types
of personnel—related information which is frequently
subject to FOIA requests and whether such information
is customarily considered exempt or not under
Exemption 6.
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I EXEMPT NOT EXEMPT
Social Security No. Name/position/organization *
Home addresses & Telephone No. Office addresses! Tel. No. *
Salaries in the Private Sector Fed./State Gov. salaries (past
and present)/amounts of awards
and within grade increases
Evaluations/appraisals Position descriptions/job
standards
Employment/Education data Employment/Education data
not related to qualif i- related to qualifications for
cations for Federal employment Federal employment
Identities of unsuccessful Identities of successful
applicants for employment or applicants for employment or
promotion promotion
Recommendations for Approved promotions, awards,
promotions, awards including employee grade and
step
College grades
Past Federal/State/Military
Birthdate/Marital status/ service and dates of service *
similar personal or family
data
Life/health/charity/thrift
savings options and
withholding data
Citizenship * With the exception of
certain sensitive positions
Reasons for terminating past
employment
Leave records
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g. Exemption 7 — Records or Information Compiled For Law
Enforcement Purposes. In 1986, exemption 7 was amended to apply
to all records or information compiled for law enforcement
purposes whose release could reasonably be expected to cause the
specified harm. Prior to 1986 the exemption applied only to
investigatory records whose release would cause the harm each
sub—section sought to prevent. Exemption 7 provides that records
or information compiled for law enforcement purposes need not be
disclosed in six specific instances (discussed below).
1) Exemption 7(A): Interference with Enforcement
Proceedings . Records or information compiled for law
enforcement purposes may be withheld where disclosure
“ could reasonably be expected to 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 specifically
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.
The applicability of this exemption need not be
justified 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
“correspondence with attorneys and charging parties.”
2) Exemption 7(B): Deprive a Person of the Right to a
Fair Trial . Records or information compiled for law
enforcement purposes may also be withheld if their
disclosure “ would deprive a person of the right to a
fair trial or an impartial adludication. ” This
exemption applies mostly in the criminal trials of
individuals.
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3) Exemption 7(C): Unwarranted Invasion of Personal
Privacy . Records or information compiled for law
enforcement purposes may be withheld if disclosure
“ could reasonably be expected to 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 not
limited to matters contained in an individual
personnel, medical or similar file, but pertains to
any personal information compiled for law enforcement
purposes.
Courts have recognized the danger of damage to an
individual’s reputation simply because his or her
name is mentioned in a record compiled for law
enforcement purposes even though he or she is not
charged. Such information 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 compiling records or
information for law enforcement purposes, and to
withhold the names of informers who may not
technically qualify as confidential sources under
Exemption 7(D).
4) Exemption 7(D): Disclose Identity of Confidential
Source . The first prong of Exemption 7(D) applies to
civil law enforcement investigations and permits
records and information compiled for law enforcement
purposes to be withheld if disclosure. “ would reveal
the identity of the source. ” The second prong of
Exemption 7(D) applies to a criminal law enforcement
matter and allows the withholding not only of the
identity of the confidential source, but also any
information provided by the source . This allows
withholding of information provided by a confidential
source even if the information was obtainable by
other means.
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 reasonably
may be inferred.
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5) Exemption 7(E): Reveal Techniques, Procedures or
Guidelines . This exemption permits the withholding
of records or information compiled for law
enforcement purposes that “ would disclose techniques
and procedures for law enforcement investigations or
prosecution, or would disclose guidelines for law
enforcement investigation or prosecution if such
disclosure could reasonably be expected to risk
circumvention of law. ” Generally, the technique or
procedure should not be known to the public. Those
portions of an internal agency enforcement manual or
guidelines that would enable the circumvention of the
law should be withheld.
6) Exemption 7(F): Endanger Life or Safety of Any
Individual . Under this exemption any records or
information compiled for law enforcement purposes may
be withheld if disclosure “ could reasonably be
expected to endanger the life or physical safety of
any individual. ” 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.
i. Exemption 9 - Geological and Geophysical Information and
Data Concerning Wells. This exemption pertains to
“geological and geophysical information and data,
including maps, concerning wells.”
3. EXCLUSIONS
a. Substantive Guidelines.
1) Whenever a request is made which involves access to.
records described in sub-section (b) (7) (A) and
o the investigation or procedure involves a possible
violation of criminal law; and
o there is reason to believe that the subject of the
investigation is unaware of its pendency and
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o the disclosure of the existence of the records
could reasonably be expected to interfere with
enforcement proceedings,
the Agency may, only during such time as these
circumstances continue, treat the records as not
subject to the FOIA reguirements .
2) Action offices shall also deny the existence of
records whenever informant records maintained by the
Agency under an informant’s name or personal
identifier are requested by a third party according
to the informant’s name or personal identifier and
the informant’s status as an informant has not been
officially confirmed.
b. Procedural Guidelines. In situations where it would
appear to be appropriate to rely on the exclusion provisions,
action offices must consult with the Office of General Counsel,
Contracts and General Law Division prior to responding to the
request.
It is important to distinguish between the exclusions set
forth above and the situation where an agency expressly refuses
to confirm or deny the existence of records (i.e.,”Glomar”)
responsive to the FOIA request.
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Tab H - Business
Confidentiality
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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 (see 40 CFR
§2.204(c).(2)(i)).
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
(see 40 CFR §2.204(c) (2) (ii)).
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.
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Except where the information is clearly not entitled to
confidential 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 been furnished previously (see sample letter
Q, Appendix I).
If a FOIA request is pending, the action office should also
send 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 R,
Appendix I). The FOIA request is therefore initially denied (see
Chapter 6, Section 5).
b. Final Determination (By 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 shall 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 shall 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
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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 confiden-
tiality claim. Those points are spelled out in 40 CFR
§2.204(e) (4).
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 business’s 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 business’s 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.
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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
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 cannot
require)
a. Final Determination byEPA 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 (see 40 CFR
§2.204(d) (1)).
b. Final Determination by EPA Legal Office of Nonentjtlement
to Confidential Treatment. If the EPA legal office determines
that business information 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)).
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5. PREVIOUS CONFIDENTIALITY OR CLASS DETERMINATION
In some cases, information claimed as confidential business
information may be the subject of a previous final confiden-
tiality 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.
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 (see 40 CFR §2.204(b)). 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 (see 40 CFR §2.207).
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 or requested.
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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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Tab I - Discretionary Release
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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)
(with the exception of (b)(7)(C) or (D)) of FOIA (see chapter 7,
sections 2b, 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. Policy. In responding to a FOIA request, EPA will under
no circumstances release records exempted under 5 U.S.C.
552(b) (1), ‘(3), (4), (6), (8) or (9), unless
1) it is on the order of a Federal court, or
2) 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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TabJ -Appeals
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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. In addition, a person has the right to file an
appeal whenever the Agency response has indicated no responsive
records have been located. (see sample letter 0, Appendix I).
Written appeals are addressed to the EPA Freedom of Information
Officer, A-lOl, 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 or a no record response.
b. Untimely Appeals. Appeals mailed to EPA more than 30
calendar days after the receipt of an initial denial or a no
record response may be treated either as a timely appeal or as an
entirely new FOIA request at the discretion of the Agency FOl
Office.
3. TIME FRAME FOR RESPONDING TO APPEALS
a. 20—Day Time Limit. The Office of General Counsel has 20
workdays 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 workdays, unless the total of all such extensions
including any used during the initial determination period would
exceed 10 workdays.
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.
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4. APPEAL PROCEDURE
a. Office of General Counsel. Upon receipt of an appeal,
the Agency FOl Office sends the appeal to the Office of General
Counsel.
The Office of General Counsel contacts the action office, and
asks it to send the initial request, Agency response, index of
withheld documents and copies of withheld documents and any
additional correspondence needed to make a legal determination on
the appeal. In addition, the Office of General Counsel
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:
1) the record must be disclosed;
2) the record must not be disclosed because a statute or
provision of the regulations so requires; or
3) 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) (with the exception of (b)(7)(C) or (D)),
but may legally be released to the public at EPA’s discretion,
the matter is referred to the Associate Administrator for
Communications, Education and Public 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.
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o If the Associate Administrator for Communications,
Education and Public 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 Associate Administrator for Communications,
Education and Public Affairs determines that the
public interest would be served by disclosure, the
record is disclosed.
Prior to issuing a discretionary release in the public in-
terest, the Associate Administrator for Communications, Education
and Public Affairs consults with the appropriate action office.
In the event that there is disagreement between the Office of
Communications, Education and Public Affairs and the action
office, the Administrator, upon request, 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.
If an appeal is based on a response indicating no records
exist, the Office of General Counsel will require the action
office(s) to make an additional search and respond in writing to
the Office of General Counsel concerning the results of the
search. If no records are located in the additional search, the
Office’ of General Counsel will notify the requester of the
results, apprise them of their right to seek judicial review,
and close the file on the appeal. If documents are located, the
Office of General Counsel will issue an appeal determination.
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
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explained. It also forwards a copy of the determination to the
appropriate action office and FOl Program Coordinator or Regional
FOl Officer and sends two copies to the Agency FOl Officer.
6. JUDICIAL REVIEW
a. Judicial Review. Whenever OGC issues a determination
denying an appeal, or indicating no responsive records exist, 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 indices.
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and Recordkeeping
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CHAPTER 11: ANNUAL REPORT AND RECORDKEEPING
1. ANNUAL REPORT TO CONGRESS
a. Agency FOl Office. Each calendar year, the Agency’s FOl
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 FOl Officer compiles the report from information submitted
by Headquarters and Regional FOI Offices.
b. Regional FOl Offices. Each calendar year, every Regional
FOI Officer prepares a Regional FOl report on requests received
and handled in their Regional Office. The Regional FOI Officer
prepares this report on or before February 1 for the preceding
calendar year. This deadline 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 1.c below.
c. Content of the Annual Report. The Agency’s annual report
to Congress covers:
1) requests
o the number of FOIA requests received;
2) denials
o the number of determinations EPA made to deny
records in whole or in part and the reason for
each denial;
o 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;
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3) appeals
o 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;
o 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
o 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;
o 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
o the results of any disciplinary proceedings or
actions taken against employees or FOl Officers
who were primarily responsible for improperly
withholding records or an explanation of why
disciplinary actions were not taken;
6) Agency rules or regulations
o a copy of Agency rules or regulations regarding
the Freedom of Information Act;
7) fees/fee schedule
o a copy of the fee schedule and the total amount of
fees collected for making records available;
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8) administrative costs
o the administrative costs to EPA of complying with
the provisions of the Act in actual dollar terms;
9) compliance with time limitations
o the total number of instances in which it was
necessary to seek a 10—day extension of time;
10) court actions
o total number of instances where court appeals were
taken on the basis of exhaustion of administrative
procedures;
o instances where court allowed additional time upon
a showing of exceptional circumstances together
with a copy of each court opinion or order
containing such an extension of time;
11) internal memoranda
o a copy of any unpublished internal memoranda or
instructions that outline procedures for Agency
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 FOl 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.
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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
available from the Information Management and Services Division.
NOTE: Once a record is responsive to a FOIA request, the FOIA
records retention schedules dictate how long that record must be
retained by the action office.
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Tab L - Sample Letters/Memos
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APPENDICES
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APPENDIX I
SAMPLE LETTERS/MEMORMJDA
PAGE
A. Response to Request for Future
Records I—i
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 1-6
G. Request for Payment Owed on
Earlier Request 1—7
H. Request for Prepayment 1-8
I. Requestfor Fee Waiver Justification 1-9
J. Denial of Public Interest Fee
Waiver Request 1—11
K. Request for Refund Memo 1-12
L. Extension of 10—Day Time Limit 1—13
M. Release Letter with Records 1-14
N. Release Letter without Records 1-15
0. Denial Letter 1—16
P. Partial Denial Letter 1—17
Q. Request for Substantiation from
an Affected Business 1—18
R. Initial Denial Base on Claim of Business
Confidentiality 1—21
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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 FOl Office (2)
FOl 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 Nr./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 FOl Office (2)
FOl Coordinator (if appropriate)
*Norlnally, 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 pot 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 ( prolected date of release) .
I regret the inconvenience this may have caused. Please
contact ( name of employee ) of this office at ( te1ephon j.. . if you
have any questions.
Sincerely,
Signature and Title
bcc: Agency or Regional FOl Office (2)
FOl Coordinator (if appropriate)
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SAMPLE LETTER D
NOTIFYING REQUESTER THAT RECORDS ARE AVAILABLE FOR SALE
ELSEWHERE
(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 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 known.) )
Any further questions regarding this information
should be directed to (NTIS).
Sincerely,
Signature and Title
bcc: Agency or Regional FOl Office (2)
FOl 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) :
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. If you consider this response to be
a denial, you may appeal it by addressing your written appeal to
the Freedom of Information Officer (A—101), United States
Environmental Protection Agency, 401 M. Street, S.W., Washington,
D.C. 20460.
Sincerely,
Signature and Title
bcc: Agency or Regional FOl Office (2)
FOl 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 ( date 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 FOl Office (2)
FOl Coordinator (if appropriate)
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SAMPLE LETTER G
REQUEST FOR PAYMENT OWED ON EARLIER REQUEST
(stamp date)
Re: Freedom of Information Act Request RIN (RIN number of
request on which payment is still due)
Dear Mr./Mrs./Ms. (name of requester):
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 you 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), 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 H
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 FOl Office (2)
FOl Coordinator (if appropriate)
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SAMPLE LETTER I
FEE WAIVER JUSTIFICATION LETTER
(stamp date)
Re: Freedom of Information Act Request ______________________
Dear Mr./Mrs./Ms. (name of requester):
Your Freedom of Information Act request did not contain
sufficient information to enable the Agency to make a
determination on your fee waiver request.
The Freedom of Information Reform Act of 1986 provides that
“Documents shall be furnished without any charge or at a charge
reduced below the fees established under clause (ii) jf
disclosure of the information is in the public interest because
it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not
primarily in the commercial interest of the requester.” In order
to evaluate whether the statutory standard authorizing a fee
waiver or reduction has been met, we will need additional
information upon which to base our determination. Your response
should include:
(I) A clear statement of your interest in the
requested documents, the use proposed for the
documents and whether you will derive income
or other benefit from such use;
(ii) a statement of how the public will benefit
from such use and from the release of the
requested documents;
(iii) if specialized use of the documents or
information is contemplated, a statement of
your qualifications that are relevant to the
specialized use;
(iv) a statement indicating how you plan to
disseminate the documents or informationto
the public;
(v) and additional information you deem relevant
to your request for a fee waiver.
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—2—
If we have not heard from you by ( 15 working days) , we will
issue a determination based upon the information provided in your
request letter.
Sincerely,
Signature and Title
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SAMPLE LETTER J
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.
The statutory test for evaluating fee waiver requests is
whether release of the information “is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government
and is not primarily in the commercial interest of the
requester.” I have considered six factors in determining whether
your request satisfies this statutory standard: (1) whether the
subject of the requested records concerns the operations or
activities of the government; (2) whether the disclosure is
likely to contribute to an understanding of government operations
or activities; (3) whether disclosure of the requested
information will contribute to the understanding of the general
public; (4) whether the disclosure is likely to contribute
“significantly” to public understanding of government operations
and activities; (5) whether you have a commercial interest that
would be furthered by the requested disclosure; and (6) whether
any such commercial interest outweighs the public interest in
disclosure.
On the basis of all of the information available to me I
have concluded that your fee waiver request (or a portion of your
fee waiver request) must be denied because (state the basis for
denying the fee waiver for all or part of the requested records).
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-l0l, U. S. Environmental Protection
Agency, 401 N 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 MEMO K
REQUEST FOR FOl REFUND
(stamp date)
SUBJECT: Request for FOl Refund
FROM: (Responding Office)
THRU: Freedom of Information Officer
(Headquarters or Region)
TO: Financial Management Office
(Headquarters or Region)
Please process process a refund check in the amount of $_____
to the following individual:
Mr. John Doe
Jane Doe, Inc.
123 Anywhere Lane
Anytown, U.S. 56789
RIN #:__________
TYPE REASON FOR REFUND HERE
(see example below)
Advance payment of $__________ was received on (date).
Actual charges of $ were incurred in filling the Freedom
of Information request.
If you need further information, please contact ( name ) on
( telephone #) .
cc: FOI Coordinator
(TO BE COMPLETED BY FOl OFFICE)
REFUND. APPROVED IN’ THE AMOUNT OF: $
FREEDOM OF INFORMATION OFFICER DATE OF APPROVAL
(Headquarters or Region)
NOTE: After approval, the FOI Office will send this memo to the
Headquarters or Regional Financial Management Office.
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SAMPLE LETTER L
EXTENSION OF TEN-DAY TIME LIMIT
(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) . An extension of the time required
to comply with your request is necessary.
The reason 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) (1))
The need to search for, collect, and
appropriately examine a voluminous amount of
separate and distinct records involved in
your request. (40 CFR 2.112(e) (2))
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 FOl Office (2)
FOl Coordinator (if appropriate)
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SAMPLE LETTER M
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 is/are
responsive to your request. The cost of providing this
information is _______. An itemized invoice covering the charges
for processing your request 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: (index of documents and Bill for Collection.)
bac: Agency or Regional FOl Office (2)
FOl Coordinator (if appropriate)
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SAMPLE LETTER N
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 In -formation Act. We are
currently copying the information you requested and will forward
it to you (along with an itemized invoice covering the charges
for processing your request by ( estimated date of cOmpletion) .
Sincerely,
Signature and Title
bcc: Agency or Regional FOl Office (2)
FOl Coordinator (if appropriate)
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SAMPLE LETTER 0
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 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-10l), United States Environmental
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: (index of withheld documents)
bcc: Agency or Regional FOl Office (2)
FOI Coordinator (if appropriate)
NOTE: If you are relying on exemption 5, cite the specific
privilege (e.g., deliberative process privilege). If you are
relying on exemption 7, cite the particular subsection of 7
(i.e., (A), (B), etc.).
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SAMPLE LETTER P
PARTIAL DENIAL LETTER
(stamp date)
Re: Freedom of Information Act Request RIM ______________
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 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-lOl), 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 RIM 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: (index of documents released and withheld)
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
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SAMPLE LETTER Q
REQUEST FOR SUBSTANTIATION FROM AN AFFECTED BUSINESS
(date stamp)
Certified Mail
Return Receipt Requested
(Addressee)
Re: (Reference the RIN number and or the Information which is
the subject of the final confidentiality determination.)
Dear ( name of the representative of the Affected Business )
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 determination
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 yçur claim. Any
information not specifically identified as subject to a
confidentiality claim will be disclosed to the requestor without
further notice to you. For each item or class of information
that you identify as being subject to your claim, please answer
the following questions:
1. For what period of time do you request that the
information be maintained as confidential? If the
occurrence of a specific event will eliminate the need
for confidentiality, please specify that event.
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2. Information submitted to EPA becomes stale over time.
Why should the information you claim as confidential be
protected for the time period specified in your answer
to question #1?
3. What measures have you taken to protect the information
claimed as confidential? Have you disclosed the
information to anyone other than a governmental body or
someone who is bound by an agreement not to disclose
the information further? If so, why should the
information still be considered confidential?
4. Has any governmental body made a determination as to
the confidentiality of the information? If so, please
attach a copy of the determination.
5. Is the information contained in any publicly available
material such as promotional publications, annual
reports, articles, etc.? Is there any means by which a
member of the public could obtain access to the
information?
6. For each category of information claimed as
confidential, discuss with specificity why release of
the information is likely to cause substantial harm to
your competitive position. Explain the nature of those
harmful effects, why they should be viewed as
substantial, and the causal relationship between
disclosure and such harmful effects. How could your
competitors make use of this information to your
detriment?
7. Do you assert that the information is “voluntarily
submitted” as defined at 40 CFR sec. 2.201(1)? If so,
explain why, and how disclosure would tend to lessen
EPA t s ability to obtain similar information in the
future.
8. 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 determi-
nation. If you wish to claim any of the information in your
response as confidential, you must mark the response
“CONFIDENTIAL” or with a similar designation, and must bracket
all text so claimed. Information so designated will be disclosed
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by EPA only to the extent allowed by, and by means of the
procedures set forth in, 40 CFR Part 2. If you fail to claim the
information as confidential upon submission it may be made
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
NOTE: Please be sure to check with your FOI Officer or FOl
Coordinator to determine whether. the affected business has
designated a specific person or office to receive this letter.
If they have, you must address the request for substantiation to
the designated person or office (see 40 CFR 2.213).
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SAMPLE LETTER R
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 response to your request of ( request date ) in
which you requested (describe the requested records). I have
determrnned that the records in question have been claimed
confidential and may contain trade secrets or commercial or
financial information which is exempt from disclosure under 5
U.S. C. 552(b) (4). Pursuant to 40 C. F.R. 2.204(d) (1), 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-lOl, U.S.
Environmental 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 of fice)
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)
FOl Coordinator (if appropriate)
1—21
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Tab M - Sample Forms
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Freedom of Information Act Manual 1550
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APPENDIX II
SAMPLE FORMS
FOl Request Log II - 1
Bill for Collection Form II — 2
Acknowledgement (HQ Form 1550-2) II - 4
(NOTE: Forms 1550—13-22 For Regions 1-10, respectively)
-------
United States Environmental Protection Agency
9EPA Freedom of Information Request Log
Initial_Requests
Appeals
Requestor & Company
Action
Office
Date
Received
RIN
No.
Due Date
(10 workinfj
days after
receipt date)
Disposition
Fees
Di osition
Date
Received
Date
Approved
Denial Date
(Cite exemption & name
& title of signing official
Approval
Date
Denial Date
(Cite exemption & name
& title of signing official
OD
u n
H
EPA Form 1550-12 (9-85)
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FREEDOM OF INFORMATION ACT MANUAL
1550
05/4/92
BILL FOR COLLECTION
BILL NO.
PIN—1989—89
BUREAU/OFFICE FOR REMITIANCE PAYABLE
U. S. ivirorurenta1 Protection Agency
DATE
ADDRESS FOR MAILING PAYMENT P.O. Box 360277 M
Pittsburgh, Pa. 15251
AMOUNT OF PAYMENT
PAYER
DETACHANORETURN
- Mr. John DOe THISPARTOFBILL
McKenna, Wilkinson & Kitther WITH REMITtANCE.
1575 Eye Street, N.W.
Washington, D.C. 20005
DATE
OESCRIPTION )UA
UNIT PRICE
AMOUNT
NTIT’I -
COST
PER
FPEEDOM OF INPJPMATION ACT PAYMEI ’YT RD UEST
5 hr. search time @ $10.00 per 1/2 hour
250 pages duplicated @ 15 t per page
2 hours search tine excluded fran charges
100 pages of duplication excluded from charges
If there are any questions, call Jane Doe
on (202) 260—1234
100 00
37 50
- 40 00
- 15 00
IMPORTANT: A receipt will be LUued for at] caalt remittancer and for all other remittancea when required by applicable pro
cedures. Failure to receive a receipt lot cash payment should be promptly reported to Ihc bureau or office shown above.
AMOUNT DUE
$ 8 2
EPA Fon,t O54 (9731 REPLACES PORN 01.1040 WHICH IS OBSOLETE.
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FREEDOM OF INFORMATION ACT MANUAL 1550
U.S. ENVIRONMENTAL PROTECTION AGENCY 05/4/92
FREEDOM OF INFORMATION
FEE SCHEDULE AND PAYMENT PROCEDURES
EFFECTIVE JANUARY 2, 1992
NOTICE TO REQUESTER
Payment should be made in the form of a check or money order,
payable to the U.S. Environmental Protection Agency. To ensure
proper credit of your payment, please write the Freedom of In-
formation Act Request Identification Number (RIN #) on your check
or money order and return with the top portion of the Bill for
Collection. Mail payment to:
U.S. Environmental Protection Agency
Washington Headquarters
P.O. Box 360277M
Pittsburgh, PA 15251
In accordance with U.S. Treasury (I TFM 6-8000) and the Debt Col-
lection Act of 1982, payment is due within 30 calendar days of
the bill date. If not received within the 30 days, interest at
the rate of 6% which begins to accrue from the date of the bill
through the date of payment, will be assessed. A late payment
handling charge of $15.00 will be imposed after 30 days with an
additional charge of $15.00 for each subsequent 30-day period.
A 6% per annum penalty will be applied on any principal amount
not paid within 90 days of the due date.
In accordance with the Freedom of Information Reform Act of 1986,
your request has been categorized as: -
( ) COMMERCIAL USE REQUEST: request charged for search, review,
and duplication costs
( ) EDUCATIONAL AND NON-COMMERCIAL SCIENTIFIC INSTITUTIONS:
requester charged for duplication costs excluding first
100 pages
( ) REPRESENTATIVE OF THE NEWS MEDIA: requester charged for
duplication costs excluding the first 100 pages
( ) ALL OTHER REQUEST: requester charged for search and
duplication time excluding the first two hours of search
time and the first 100 pages of duplication
ATTACHMENT TO BILL FOR COLLECTION FOR FREEDOM OF INFORMATION PAYMENT
11—3
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FREEDOM OF INFORMATION ACT MANUAL 1550
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EPA
United States
Evironmental Protection
Agency (A-101)
Washington. DC 20460
Official Business
Penalty for Private Use
$300
EPA Form 1550-2 (9-90) Replaces EPA Form 1550-3, whIch Is obsolete.
United States Environmental Protection Agency Date
Washington, DC 20460
Freedom of Information Act
WA
Request Acknowledgement
Date of Your Request Date Your Request Was 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 he
following Request Identification Number:
HO - RIN -
Agency reedom of Information Officer (A-1O1)
U. S. Environmental Protection Agency
11—4
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Tab N - FOIA Statute
(U.S. Code)
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Freedom of Information Act Manual 1550
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APPENDIX III
FOIA STATUTE (5 U.S.C. 552)
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FREEDOM OF INFORMATION ACT MANUAL 1550
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THE FREEDOM OF INFORMATION ACT
5 U.S.C. S552
As Amended By *
The Freedom of Information Reform Act of 1986
S552. Public information; agency rules, opinions, orders, records, and
proceedings
(a) Each agency shall make available to the public information as
follows:
(1) Each agency shall separately state and currently publish in
the Federal Register for the guidance of the public——
(A) descriptions of its central and field organization and
the established places at which, the employees (and in the
case of a uniformed service, the members) from whom, and the
methods whereby, the public may obtain information, make
subrnittals or recuests, or obtain decisions;
(B) statements of the general course and method by which its
functions are channeled and determined, including the nature
andrequirements of all formal and informal procedures
available;
(C) rules of procedure, descriptions of forms available or
the places at which forms may be obtained, and instructions
as to the scope and contents of all papers, reports, or
examinations;
(D) gubstantive rules of general applicability adopted as
authorized by law, and statements of general policy or
interpretations of general applicability formulated and
adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be required
to resort to, orbe adversely affected by, a matter required to
be published in the Federal Register and not so published. For
the purpose of this paragraph, matter reasonably available to
the class of persons affected thereby is deemed published in the
* The provisions specifying the effective dates of these asr end-
xrtents ar set out at the end of the text of the Act.
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FREEDOM OF INFORMATION ACT MANUAL 1550.
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Federal Register when incorporated by reference therein with the
approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying——
(A) final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of
cases;
(B) those statements of policy and interpretations which
have been adopted by the agency and are not published in the
Federal Register; and
(C) administrative staff manuals and instructions to staff
that affect a member of the public; unless the materials are
promptly published and copies offered for sale. To the
extent required to prevent a clearly unwarranted invasion of
personal privacy, an agency may delete identifying details
when it makes available or publishes an opinion, statement of
policy, interpretation, or staff manual or instruction.
}Iowever, in each case the, justification for the deletion
shall be explained fully in writing. Each agency shall also
maintain and make available for public inspection and copying
current indexes providing identifying information for the
public as to any matter issued, adopted, or promulgated after
July 4, 1967, and required by this paragraph to be made
available or published. Each agency shall promptly publish,
quarterly or more frequently, and distribute (by sale or
otherwise) copies of each index or supplements thereto unless
it determines by order published in the Federal Register that
the publication would be unnecessary and impracticable, in
which case the agency shall nonetheless provide copies of
such index on request at a cost not to exceed the direct cost
of duplication. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that affects a
member of the public may be relied on, used, or cited as
precedent by an agency against a party other than an agency
only if——
(i) it has been indexed and either made available or
published as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms
thereof.
(3) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, upon any
request for records which (A) reasonably describes such records
and (B) is made in accordance with published rules stating the
time, place, fees (if a .y), and procedures to be followed, shall
make the records promptly avai)able to any person.
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FREEDOM OF INFORMATION ACT MANUAL 1550
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(4)(A) ( i ) In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice and
receipt of public comment, specifying a—w’ 4€erm the schedule of
fees applicable to —ee t ent-w’ttte—e€—e e)t ege teyv the
processing of requests under this section and establishing
procedures and guidelines for determining when such fees should
be waived or reduced. Such schedule shall conform to the
guidelines which shall be promulgated, pursuant to notice and
receipt of public comment, by the Director of the Office of
Management and Budget and which shall provide for a uniform
schedule of fees for all agencies . S eh—feee—eha —be— te4
t - —preve- e?-reeevery-ef-en4y-the—dtreet—eeete-ef-e eh
e)targe -er-at—a—re eed—e1’terge-wl’tere-t)te-a eney— eterm es-that
we tyar-er-re et4ert—e -tI’ e-€ee- a
( ii) Such agency regulations shall provide that——
( I) fees shall be limited to reasonable standard
charges for document search, duplication, and review,
when records are requested for commercial use;
( II) fees shall be limited to reasonable standard
charges for document duplication when records are not
sought for commercial use and the recluest is made by an
educational or noncommercial scientific institution,
hose purpose is scholarly or scientific research; or a
representative of the news media; and
( III) for any re uest not described in (I) or (II),
fees shall be limited to reasonable standard charges
for document search and duplication.
( iii) Documents shall be furnished without any charge or
at a charge reduced below the fees established under
clause (ii) if disclosure of the information is in the
public interest because it is likely to contribute sig-
nificantly to public understanding of the operations or
activities of the government and is not primarily in the
commercial interest of the requester.
( iv) Fee schedules shall provide for the recovery of only
€he direct costs of search, duplication, or review.
Review costs shall include only the direct costs i curred
during the initial examination of a document for the
purposes of determining whether the documents must be
disclosed under this section and for the purposes of
withholding any portions exempt from disclosure under this
section. Review costs may not include any costs incurred
in resolving issues of law or policy that may be raised in
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FREEDOM OF INFORMATION ACT MANUAL 1550
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the course of processing a request under this section, No
fee may be charged by any agency under this section——
( I) if the costs of routine collection and processjn
of the fee are likely to equal or exceed the amount o
the fee; or
( II) for any request described in clause (ii) (II)
or (III) of this subparagra h for the first two hours
of search time or for the first one hundred pages of
duplication.
( v) No agency may require advance payment of any fee
iiiiless the rec uester has previously failed to pay fees in
timnely fashion, or the agency has determined that the
fee will exceed $250.
( vi) Nothing in this subparagraph shall supersede fees
char eable under a statute specifically providing for
setting the level of fees for particular types of records.
( vii) In any action by a: requester regarding the waiver
of fees under this section, the court shall determine the
atter de novo, provided that the court’s review of the
matter shall be limited to the record before the agency .
(B) On complaint, the district court of the United States in
the district in which the cot plainant resides, or has his
principal place of business, or in which the agency records
are situated, or in the District of Columbia, has jurisdic-
tion to enjoin the agency from withholding agency records
and to order the production of any agency records improperly
withheld from the complainant. In such a case the court
shall determine the matter de novo, and may examine the con-
tents of 3Uch agency records in camera to determine whether
such records or any part thereof shall be withheld under any
of the exemptions set forth in subsection (b) of this sec-
tion, and the burden is on the agency to sustain its action.
(C) Notwithstanding any other provision of law, the defen-
dant shall serve an answer or otherwise plead to any cons-
plaint made under this subsection within thirty days after
service upon the defendant of the pleading in which such
complaint is made, unless the court otherwise directs for
good cause shown.
(D) (Except as to cases the court considers of greater
importance, proceedings before the district court, as author-
ized by this subsection, and appeals therefrom, take prece-
dence on the docket over all cases and shall be assigned for
hearing and trial or for argument at the earliest practicable
date and expedited in every wa ’.) Repealed. Pub. L. 98-620,
Title IV, S402(2), Nov. 8, 1964, 98 Stat. 3335, 3357.
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(E) The court may assess against the United States reason-
able attorney fees and other litigation costs reasonably
incurred in any case under this section in which the com-
plainant has substantially prevailed.
(F) Whenever the court orders the production of any agency
records improperly withheld from the complainant and assesses
against the United States reasonable attorney fees and other
litigation costs, and the court additionally issues a written
finding that the circumstances surrounding the withholding
raise questions whether agency personnel acted arbitrarily or
capriciously with respect to the withholding, the Special
Counsel shall promptly initiate a proceeding to determine
whether disciplinary action.ia warranted against the officer
or employee who was primarily responsible for the withhold-
ing. The Special Counsel, after investigation and considera-
tion of the evidence submitted, shall submit his findings and
recommendations to the administrative authority of the agency
concerned and shall send copies of the findings and recommen-
dations to the officer or employee or his representative.
The administrative authority shall take the corrective action
that the Special Counsel recommends.
(C) In the event of noncompliance with the order of the
court, the district court may punish for contempt the respon-
sible employee, and in the case of a uniformed service, the
responsible member.
(5) Each agency having more than one member shall maintain
and make available for public inspection a record of the final
votes of each member in every agency proceeding.
(6) (A) Each agency, upon any request for records made under
paragraph C]), (2), or (3) of this subsection, shall——
(1) determine within ten days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt of
any such request whether to comply with such request and
shall inmiediately notify the person making such request of
such determination and the reasons therefor, end of the
right of such person to appeal to the head of the agency
any adverse determination; 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 request for records is in
whole or in part upheld, the agency shall notify the
person making such request of the provisions for udiciai
review of that determination under paragraph (4) of this
subsection.
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FREEDOM OF INFORNATION ACT MANUAL 1550.
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(B) In unusual circumstances as specified in this subpara-
graph, the tilDe limits prescribed in either clause (i) or
clause (ii) of subparagraph- (A) may be extended by written
notice to the person making such request setting forth the
reasons for such extension and the date on which.a determina-
tion is expected to be dispatched. No such notice shall
specify a date that would result in an extension for more
than ten working days. As used in this subparagraph, ‘Un-
usual circumstances’ means, but only to the extent reasonably
necessary to the proper processing of the particular
re qué S t——
(i) the need to search for and collect the requested
records from field facilities or other establishments that
are separate from the office processing the request;
(ii) the need to search for, collect, and appropriately
examine a volui inous amount of separate and distinct
records which are demanded in a single request; or
(iii) the 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 the agency having
substantial subject-matter interest therein.
(C) Any person making a request to any agency for records
under paragraph (1), (2), or (3) of this subsection shall be
deemed to have exhausted his administrative remedies with
respect to such request if the agency fails to comply with
the applicable time limit provisions of this paragraph. If
the Government can show exceptional circumstances exist and
that the agency is exercising due diligence in responding to
the request, the 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 request
for records, the records shall be made promptly available to
such person making such request. Any notification of denial
of any request for records under this subsection shall set
forth the names and titles or positions of each person
responsible for the denial of such request.
(b) This section does not apply to matters that are——
(1) (A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classi-
fied pursuant to such Executive order;
(2) related solely to the internal personnel rules and prac—
ticesof an agency;
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(3) specifically exempted from disclosure by statute (other
thertsection 552b of this title), provided that SUCh statute (A)
r uires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establish-
es 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;
(5) inter—agency or intra—agency memorand s or letters which
w ld 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 disclos-
ure of which would constitute a clearly unwarranted invasion of
personal privacy;
(7) 4wve9 gatery records or inforn ation compiled for law
e forceinent purposes, but only to the extent that the production
of such la enforcer ent records or information we (A) could
reasonably be expected to interfere with enforcement proceed—
ii s, (B) would deprive a person of a right to a fair trial or
a impartial adjudicaticr., (C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy, (D)
could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency
or authority or any private institution which furnished informa—
t.ion on a confidential basis , and, in the case of a record or
i forxnation compiled by a criminal law enforcement authority in
the course of a criminal investigation, or by an agency conduct-
ing a lawful national security intelligence investigation,
eeêe t e information furnished ert y by the a confidential
source, (E) would disclose yes !at4 ye techniques and proce—
dures for law enforcement investigations or prosecutions or
would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law , or (F) could reasonably be ax —
endanger the life or physical safety of aw—enferee—
aei’ t-pereern’ie any individual ;
(8) contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of
an agency responsible for the regulation or supervision of
financial institutions; or
(9) geological and geophysical information and data, including
maps, concerning wells.
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FREEDOM OF INFORMATION ACT MANUAL 1550
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Any reasonably segregable portion of a record shall be provided
to any person requesting SUCh record after deletion of the portions
which are exempt under this subsection.
( c) (1) Whenever a request is made which involves access to records
— described in subsection (b) (7) (A) and——
( A) the investigation or proceeding involves a possible
violation of criminal law; and
( B) there is reason to believe that (i) the subject of the
investigation or 2 roceeding is not aware of its j,endency, and
( ii) disclosure of the existence of the records could reason—
ibly be expected to interfere with enforcement proceeding.,
the agency may, during only such time as that circumstance
àntinues, treat the records as not subject to the requirements
f this section.
( 2) Whenever informant records maintained by a criminal law
inforcement agency under an informant’s name or personal identi—
fier are requested by a third party according to the informant’s
name or personal identifier, the agency may treatthe records as
i ot subject to the requirements of this section unless the
Ti formant’s status as an informant has been officially confirmed .
V
( 3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to
foreign intelligence or counterintelligence, or internationaA
terrorism, and the existenCe of the records is classified
Ii formatiOfl as provided in subsection (b) (1), the Bureau may, as
long as the existence of the records remains classified informa-
tion, treat the records as not subject to the requirements of
this section .
4e3(d) This section does not authorize withholding of information
or limit the availability of records to the public, except as
specificallY stated in this section. This section is not authority
to withhold information from Congress.
4 *(e1 On or before March 1 of each calendar year, each agency
shall submit a report covering the preceding calendar year to the
Speaker of the House of Representatives and President of the Senate
for referral to the appropriate committees of the Congress. The
report shall include-
(1) the nwther of determinations made by such agency not to
comply with requests for records made to such agency under
subsection (a) and the reasons for each such determination;
(2) the number of appeals made by persons under subsectiOfl
(a) (6), the result of such appeals, arid the reason for the
action upon each appeal that results in a denial of information;
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(3) the names and titles or positions of each person respon-
sible for the denial of records requested under this section,
and the number of instances of participation for each;
(4) the results of each proceeding conducted pursuant to
subsection (a) (4) (F), including a report of the disciplinary
action taken against the officer or employee who was primarily
responsible for improperly withholding records or an explanation
of why disciplinary action was not taken;
(5) a copy of every rule made by such agency regarding this
section;
(6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under this
section; and
(7) such other inforrtation as indicates efforts to administer
fully this section.
The Attorney Genera . shall submit an annual report on or before
March 1 of each calendar year which shall include for the prior
calendar year a listing of the number of cases arising under this
section, the exemption involved in each case, the disposition of
such case, and the cost, fees, and penalties assessed under sub-
sections (a) (4) (E), (F), and (G). Such report shall also include
a description of the efforts undertaken by the Department of
Justice to encourage agency compliance with this section.
4eHf) For purposes of this section, the term ‘ 1 agency as defined
in section 551(1) of this title includes any Executive department,
military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or
any independent regulatory agency.
* * * * a
Section 1804. Effective Dates (Will not be codified).
(a) The amendments made by section 1802 (the modification of
Exemption 7 and the addition of the new subsection (c)] shall be
effective on the date of enactment of this Act (October 27, 1986],
and shall apply with respect to any requests for records, whether
or not the request was made prior to such date, and shall apply to
any civil action pending on such date.
(b) (1) The amendments made by section 18C3 [ the new fee and fee
waiver provisions) shall be effective 180 days after the date of
the enactment of this Act, except that regulations tc implement
such amendments shall be promulgated by such 180th day.
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(2) The axnendsnents made by section 1803 shall apply with
respect to any requeBts for records,, whether or not the request
was made prior to such date, and shall apply to’ any civil action
pending on such date, except that review charges applicable to
records requested for coTnlnercial use shall not be applied by an
agency to requests made before the effective date specified in
paragraph (1) of this subsection or before the agency has
finally issued its regulations.
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APPENDIX IV
EPA REGULATIONS
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Freedom of Information Act Manual 1550
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U.S. ENVIRONMENTAL PROTECTION AGENCY
FREEDOM OF INFORMATION ACT REGULATIONS
40 CFR PART 2
REVISED AS OF JULY 1, 1989
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FREEDOM OF INFORMATION ACT MANUAL
1550
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Envhonmsfltal Pr.t.ctlofi Ag.ncy
PART 2—PUBLIC INFORMATION
Subpart A—R.qu.sts 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 ap-
plies.
2.105 ExIsting records.
2.108 Where requests for agency record.
shall be filed.
2.107 MisdIrected written requests; oral re-
quests.
2.108 Form of request.
2.109 Requests which do not reasonably
describe records sought.
2.110 Responsibilities of Freedom of Infor-
mation Officers.
2.111 Action by office responsible for re-
sponding to request
2.112 Time allowed for Issuance of initial
determination.
2.113 InItial denials of requests.
Part 2
Sec.
2.114 Appeals from Initial denials; manner
of making.
2.115 Appeal determinations; by whom
made.
2.118 Contents of determination denying
appeal.
2.117 Time allowed for Issuance of appeal
determination.
2.118 Exemption categories.
2.119 Discretionary release of exempt doc-
uxnents.
2.120 Fees; payment; waiver.
2.121 Exclusions.
Subpart B- .—Confld.ntIallty of Busln.ss
Information
2.201 DefinitIons.
2.202 ApplicabilIty of subpart; priority
where provisions conflict: records con-
taining more than one kind of Informa-
tion.
2.203 Notice to be included In EPA re-
quests, 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.
2.208 Advance confidentiality determina-
tions.
2.207 Class determinations.
2.208 Substantive criteria for use in confi-
dentiality determinations.
2.209 Disclosure In special circumstances.
2.210 Nondisclosure for reasons other than
business confidentiality or where disclo-
sure is prohibited by other statute.
2.211 SafeguardIng of business informa-
tion; 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 busi-
ness.
2.215 ConfidentialitY agreements.
2.218—2.300 (Reserved)
2.301 Special rules governing certain infor-
mation obtained under the Clean Air
Act.
2.302 Special rules governing certain inf or-
mation obtained under the Clean Water
Act.
2.303 Special rules governing certain infor-
mation obtained under the Noise Con.
trol Act of 1972.
2.304 Special rules governing certain Infor-
mation obtained under the Safe Drink-
ing Water Act.
2.305 Special rules governing certain Infor-
mation obtained under the Solid Waste
Disposal Act, as amended.
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2.308 Special rules governing certain Infor-
mation obtained under the Toxic Sub.
stances Control Act.
2.307 Special rules governing certain Infor-
mation obtained under the Federal In-
secticide, Fungicide and Rodenticide
Act.
2.308 Special rules governing certain infor-
mation obtained under the Federal
Food, Drug and Cosmetic Act.
2.309 Special rules governing certain Infor-
mation obtained under the Marine Pro-
tection, Research and Sanctuaries Act of
1972.
2.310 Special rules governing certain ln.for-
mation obtained under the Comprehen.
sive nvironi-nen Response, Compen-
sation, and Liability Act of 1980.
2.311 Special rules governing certain infor-
mation obtained under the Motor Vehi.
cle Information and Cost Savings Act.
Subpart C—T. .tlmony by Employ... and Pro-
ductIon of Yocum.nt . in Civil Legal Pro-
c.sding . Wh.r. h. UnIt.d Stat.. I. Not a
Party
2.401 Scope and purpose.
2.402 Policy on presentation of testimony
and production of documents.
2.403 Procedures when voluntary testimo-
ny is requested. -
2.404 Procedures when an employee is sub-
poenaed.
2.405 Subpoenas duces tecum.
2.406 Requests for authenticated copies of
EPA documents.
Atrn4oiuTy: 5 U.S.C. 301, 552 (a.s amend-
ed), 553; sees. 114, 206. 208, 301. and 307,
Clean A r Act, a.s amended (42 U.S.C. 7414,
7525, 7542. 7601, 7607); sees. 308. 501 and
509(a), Clean Water Act, as amended (33
U.S.C. 1318. 1361, 1369(a)); sec. 13, Noise
Control Act of 1972 (42 U.S.C. 4912); sees.
1445 and 1450, Safe Drinking Water Act (42
U.S.C. 300J-4. 300j-9); sees. 2002, 3007, and
9005, Solid Waste Disposal Act, as amended
(42 U.S.C. 6912, 6927, 6995); sees. 8(c). 11,
and 14. Toxic Substances Control Act (15
U.S.C. 2607(c). 2610. 2613): sees. 10. 12, and
25, Federal Insecticide, Fungicide and Ro-
dentic-ide Act, as amended (7 U.S.C. 136h,
1361, 136w); sec. 408(f), Federal Food. Drug
and Cosmetic Act, as amended (21 U.S.C.
346(f)): sees. 104(f) and 108. Marine Protec-
tion Research and Sanctuaries Act of 1972
(33 U.S.C. 1414(f). 1418); sec. 104. Compre-
hensIve Envjrorijnental Response. Compen-
sation, and Liability Act of 1980 (42 U.S.C.
9604); sec. 505, Motor Vehicle Information
and Cost Savings Act, as amended (15 U.S.C.
2005).
SOURCr 41 FR 36902, Sept. 1, 1976, unless
otherwise noted.
40 CFR Ch. I (7-1-88 EditIon
Subpart A—Requests for Information
§ 2.100 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, writ-
ing, photograph, sound or magnetic re
cording, drawing, or other similar
thing by which Information has been
preserved, from which the information
can be retrieved and copied, and over
which EPA has possession or control.
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 a]so
includes information preserved in a
form which must be translated or deci-
phered by machine in order to be in-
telligible to humans. The term in.
eludes documents and the like which
were created or acquired by EPA, it-s
predecessors, its officers, and its em-
ployees by use of Government funds
or in the course of transacting official
business, However, the term does not
include materials which are the per-
sonal records of an EPA officer or em-
ployee. Nor does the term include ma-
terials published by non-Federal orga-
nizations which are readily available
to the public, such as books, journals,
and periodicals available through ref-
erence libraries, even if such materials
are in EPA’s possession.
(c) “Request” means a request to in-
spect or obtain a copy of one or more
records.
(d) “Requestor” means any person
who has submitted a request to EPA.
(e) The term “‘commercial use’ re-
quest” refers to a request from or on
behalf f one who seeks information
for a use or purpose that furthers the
commercial, trade or profit interests of
the requestor or the person on whose
behalf the request is made. In deter-
mining whether a requestor properly
belongs in this category, EPA must de-
termine the use to which a requestor
will put the documents requested.
Moreover, where EPA has reasonable
cause to doubt the use to which a re-
questor will put the records sought, or
where that use is not clear from the
request itself, EPA may seek addition-
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FREEDOM OF INFORMATIOIN ACT MANUAL
Environmental Protection Agency
al clarification before assigning the re-
quest to a specific category.
(f) The term “non-commercial scien-
tific institution” refers to an institu-
tion that Is not operated on a “com-
mercial” basis as that term is refer-
enced in paragraph (e) of this section,
and which is operated solely for the
purpose of conducting scientific re-
search the results of which are not in-
tended to promote any particular
product or industry.
(g) The term “educational Institu-
tion” refers to a preschool, a public or
private elementary or secondary
school, an institution of graduate
higher education, an institution of un-
dergraduate higher education, an in-
stitution or professional education,
and an institution of vocational educa-
tion, which operates a program or pro-
grams of scholarly research.
(h) The term “representative of the
news media” refers to a y person ac-
tively gathering news for an entity
that is organized and operated to pub-
lish or broadcast news to the public.
The term “news” means Information
that is about current events or that
would be of current interest to the
public. Examples of news media enti-
ties include television or radio stations
broadcasting to the public at large.
and publishers of periodicals (but only
in those instances when they can qual-
ify as disseminators of “news”) who
make their products available for pur-
chase or subscription by the general
public. These examples are not intend-
ed to be all-inclusive. Moreover, as tra-
ditional methods of ne’is delivery
evolve (e.g., electronic dissemination
of newspapers through telecommuni-
cations services), such alternative
media would be included in this cate-
gory. In the case of “freelance” jour-
nalists, they may be regarded as work-
ing for a news organization if they can
demonstrate a solid basis for expecting
publication through that organization,
even though not actually employed by
it. A publication contract would be the
clearest proof, but EPA may also look
to the past publication record of a re-
questor in making this determinationS
(1) The term “search” includes all
time spent looking for material that is
responsive to a request, Including
page-by-page or line-by-line identifica-
§ 2. 101
tion of material within documents.
Searching for material must be done
in the most efficient and least expen-
sive manner so as to minimize costs for
both the EPA and the requestor. For
example, EPA will not engage in line-
by-line search when merely duplicat-
ing an entire document would prove
the less expensive and quicker method
of complying with a request. “Search”
will be distinguished, moreover, from
“review” of material in order to deter-
mine whether the material is exempt
from disclosure (see -aragraph (j) of
this section). Searches may be done
manually or by computer using exist-
ing programming.
(j) The term “review” refers to the
process of examining documents locat-
ed in response to a request that is for
a commercial use (see paragraph (e) of
this section) to determine whether any
portion of any document located is
permitted to be withheld. It also in-
cludes processing any documents for
disclosure, e.g., doing all that Is neces-
sary to excise them and otherwise pre-
pare them for release. Review does not
include time spent resolving legal or
policy issues regarding the application
of exemptions. (Documents must be
reviewed in responding to all requests;
however, review time may only be
charged to Commercial Use Request-
ers.)
(k) The term “duplication” refers to
the process of making a copy of a doc-
ument necessary to respond to an
FOIA request. Such copies can take
the form of paper copy, microform,
audio-visual materials, or machine
readable documentation (e.g., magnet-
ic tape or disk), among others. The
copy provided must be in a form that
is reasonably usable by requesters.
(41 FR 36902. Sept. 1, 1976, as amended at
50 FR 51658. Dec. 18, 1985; 53 FR 216, Jan.
5, 1988)
§ 2.101 Policy on disclosure of EPA
records.
(a) EPA will make the fullest possi-
ble disclosure of records to the public,
consistent with the rights of individ-
uals to privacy, the rights of persons
in business information entitled to
confidential treatment, and the need
for EPA to promote frank internal
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§ 2.103
40 CFR Ch. I (7-1-88 Edition)
policy deliberations and to pursue its
official activities without undue dis-
ruption.
(b) All EPA records shall be avail-
able to the public unless they are
exempt from the disclosure require-
ments 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.
(d) When documents responsive to a
request are maintained for distribu-
tion by agencies operating statutory-
based fee schedule programs, such as,
but not limited to, the Government
Printing Office or the National Tech-
nical Information Service, EPA will
inform the requester of the steps nec-
essary to obtain records from the
sources.
(41 FR 36902, Sept. 1, 1976, as amended at
53 FR 216, Jan. 5, 1988)
§ 2.102 [ Reserved]
§ 2.103 Partial disclosure of records.
If a requested record contains both
exempt and nonexempt material, the
nonexempt material shall be disclosed,
after the exempt material has been de-
leted in accordance with § 2.119.
§ 2.104 Requests to which this subpart ap-
plies.
(a) This subpart applies to any writ-
ten request (other than a request
made by another Federal agency) re-
ceived 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 di-
rected by the requestor to offices
other than those listed in § 9.106.
(b) Any written request to EPA for
existing records prepared by EPA for
routine public distribution, e.g., pam-
phlets, copies of speeches, press re-
leases, and educational materials, shall
be honored. No individual determina-
tion 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 cre-
ation of new records in response to a
request, nor does it require EPA to
place a requestor’s name on a distribu-
• tion list for automatic receipt oi cer-
tain kinds of records as they come into
existence. The Act establishes require-
ments for disclosure of existing rec-
ords.
(b) All existing EPA records are sub-
ject to routine destruction according
to standard record retention sched-
ules.
§ 2.106 Where requests for agency records
shall be filed.
(a) A request for records may be
filed with the EPA Freedom of Infor-
mation Officer, A-101, 401 M Street,
SW., Washington, DC 20460.
(b) Should the requestor have
reason to believe that the records
sought may be located in an EPA re-
gional office, he may transmit his re-
quest to the appropriate regional Free-
dom of Information Office indicated
below:
(1) Region I (Massachusetts, Con-
necticut, 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.
(3) Region III (Delaware, Maryland.
Pennsylvania, Virginia, West Virginia,
District of Columbia):
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.
FREEDOM OF INFORMATION ACT MANUAL
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§ 2.110
(5) Region V (Illinois, Indiana,
Michigan. Minnesota, Ohio, Wiscon-
sin);
d.s. Environmental Protection Agency.
Freedom of Information Officer, 230
Dearborn Street. Chicago, 11 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, Mis-
souri, Nebraska):
U.S. Environmental Protection Agency,
Freedom of Information Officer, 726 Min-
nesota 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. ;
(9) Region IX (Arizona. California,
Hawaii, Nevada, American Samoa.
Guam. Trust Territory of Pacific Is-
lands):
U.S. Environmental Protection Agency.
Freedom of Information Officer, 215 Fre-
mont 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.
(41 FR 36902. Sept. 1. 1976. as amended at
50 FR 51659, Dec. 16, 1985]
§2.107 Misdirected written requests; oral
requests.
(a) EPA caimot ass ire that a timely
or satisfa ory response under this
subpart will be given to written re-
quests that are addressed to EPA of-
fices, officers, or employees other than
the Freedom of Information Officers
listed In 2.106. Any EPA officer or
employee who receives a written re-
quest 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
tinder * 2.111. For purposes of § 2.112,
the time allowed with respect to initial
determinations shall be computed
from the day on which the appropri-
ate Freedom of Information Officer
receives the request.
(b) While EPA officers and employ-
ees 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 proc-
essed In accordance with this subpart.
(41 FR 36902, Sept. 1. 1976, as amended at
50 FR 51659, Dec. 18. 1985]
§ 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 of 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 the administra-
tive burden of processing a broad re-
quest 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 In-
formation Officers.
(a) Upon receipt of a written re-
quest, the Freedom of information Of-
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§ 2.111
40 CFR Ch. I (7-1-88 Edition)
ficer (whether 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 adminis-
trative Information. The request and
control slip shall then be forwarded
immediately to the EPA office be-
lieved to be responsible for maintain-
ing the records requested. (If the
records requested are believed to be lo-
cated 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 co-
ordinating the response.) The Free-
dom 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 Of-
flcer shall maintain a file concerning
each request received, which shall con-
tain a copy of the request, initial and
appeal determinations, and other per-
tinent correspondence and records.
(c) The Freedom of Information of-
ficer shall collect and maintain the in-
formation necessary to compile the re-
ports required by 5 U.S.C. 552(d).
§ 2.111 Action by office responsible for re-
sponding to request.
(a) Whenever an EPA office becomes
aware that it is responsible for re-
sponding to a request, the office shall:
(1) Take action under § 2.109, if re-
quired, 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 an-
other Federal agency and not pos-
sessedby 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 request-
ed records legally must be withheld,
and why (see § 2.119(b));
(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 all initial determination
within the allowed period (see § 2.112),
specifying (individually or by catego-
ry) which records will be disclosed and
which will be withheld, and signed by
a person authorized to Issue the deter-
mination under § 2.113(b). DenIals of
requests shall comply with § 2.113; and
(8) Furnish the appropriate Free-
dom of Information Officer a copy of
the determination. If the determina-
tion denied a request for one or more
existing, located records, the respond-
ing office shall also furnish the Free-
dom of Information officer the name,
address, and telephone number 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 re-
sponding to the request but may be in
the possession of some other EPA
office, the Freedom of Information of-.
ficer 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 pos-
session as of the date of the Agency’s
receipt of the request.
(d) When a request for EPA records
encompasses records of another Feder-
al agency, the EPA office shall either:
(1) Respond to the request after con-
sulting 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.
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§ 2.113
(41 FR 38902. Sept. 1, 1916. as amended at
50 FR 51659, Dec. 18, 1985)
§ 2.112 Time allowed for issuance of ini-
tial determination.
(a) Except as otherwise provided In
this section, not later than 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 re-
quest shall Issue a written determina-
tion 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 Feder-
al government, the response may
inform the requestor that the records
are available for inspectiQn 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 Free-
dom of Information Office.
(C) There shall be excluded from the
period of 10 working days (or any ex-
tension thereof) any time which
eIa ses between the date that a re-
questor is notified by ?A under
§ 2.109 that his request does not rea-
sonably identify the records sought,
and the date that the requestor fur-
nis . es a reasonable identification.
(d) There shall be excluded from the
pe iod of 10 working days or any ex-
tension thereof) any time which
elapses between the date that a re-
questor is notified by EPA under
§ 2.120 that prepayment or assurance
of paymeni of fees is required, and the
date that the requestot’ pays (or makes
Suitable arrangements to pay) such
charges.
(e) The EPA office taking action
under § 2.1U, after notifying the ap-
ropriate Freedom of Information
Office, may extend the basic 10-day
Period established under subsection
(a’ of this se- tjon by a period not to
e”ceed 10 additional working days, by
furnishing written notice to the re-
questor within the basic 10-day period
stating the reasons for such extension
and the date by which the office ex-
pects to be able to issue a determina-
tion. 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 proc-
essing the request:
(2) There is a need to search for, col-
lect, and appropriately examine a vo-
luminous amount of separate and dis-
tinct 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 de-
termination of the request or among
two or more components of EPA.
(f) Failure of EPA to issue a determi-
nation within the 10-day period or any
authorized extension shall constitute
final agency action which autho:izes
the requestor q commence an action
in an appropriate Federal district
court to obtain the records.
(41 FR 36902, Sept. 1, 1916. as amended at
50 Fl ’. 51659, Dec. 18, 1985]
§ 2.113 !nitial denials of requests.
(a) An initial denial of a request may
be issued only for the following rea-
sons:
(1) A statutory provision, provision
of this part, or court order reqt’ires
that the information not be disclosed:
(2) The record is exempt from man-
datory disclosure under 5 U.SC. 552(b)
a id EPA has decided that the public
Interest would not be served by disclo-
sure; or
(3) Section 2.204(d)(1) requires ini-
tial denial because a third person must
be consulted in connection with a busi-
ness confidentiality claim.
(b) The Deputy Administrator, As-
sistant Administrators, Regional Ad-
ministrators, the General counsel, the
Inspector General. Associate Adzninis-
trat-)rs, and heads of headquarters
staff offices are delegated the author-
ity to Issue initial determinations This
authority may be redelegated; Provid-
ed, That the authority to issue initial
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§ 2.114
40 CFR C l i. I (7-1-88 Edition)
denials of requests for existing, locat-
ed records (other than denla]s based
solely on § 2.204(d)(1)) may be redele-
gated only to persons occupying posi-
tions not lower than division director
or equivalent.
(C) (Reserved
(d)(1) Each initial determination to
deny a request shall be written, signed,
and dated, and, except as provided in
paragraph (d)(2), shall contain a refer-
ence 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 catego-
ry), and shall state the basis for denial
for each record or category of records
being withheld.
(2) No initial determination shall
reveal the existence or nonexistence of
records if identifying the mere fact of
the existence or nonexistence of those
records would reveal confidential busi-
ness information, confidential person-
al information or classified national
security Information. Instead of Identi-
fying 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 provi-
sion of 5 U.S.C. 552(b). No such deter-
mination shall be made without the
concurrence of the General Counsel or
his designee. The General Counsel has
designated the Contracts and Informa-
tion Law Branch to act on these re-
quests for concurrence. See § 2.12 1 for
guidance on initial determinations de-
nying, In limited circumstances, the
existence of certain law enforcement
records or information.
(e) if the decision to deny a request
is made by an authorized EPA employ-
ee other than the person signing the
determination letter, that other per-
son’s identity and position shall be
stated in the determination letter.
(f) Each initial determination which
denies, in whole or in part, a request
for one or more existing, located EPA
records (including determinations de-
scribed in § 2.113(d)(2) of this section)
shall state that the requester may
appeal the initial denial by sending a
written appeal to the address shown in
§ 2.106(a) within 30 days after receipt
of the determination. An initial deter-
mination which only denies the exist-
ence of records, however, will not in-
clude a notice of appeal rights.
(g) A determination shall be deemed
issued on the date the determination
letter is placed in EPA mailing chan-
nels for first class mailing to the re-
questor, delivered to the U.S. Postal
Service for mailing, or personally de-
livered to the requestor, whichever
date first occurs.
(41 FR 36902, Sept. 1, 1976, as amended at
50 FR 51659, Dec. 18. 1985; 53 FR 216, Jan.
5. 1988)
§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 the
date the requestor received the initial
determination on the request. An un-
timely appeal may be treated either as
a timely appeal or as a new request, at
the option of the Freedom of Informa-
tion Officer.
(C) The appeal letter shall contain a
reference to the ReQuest Identifica-
tion Number (RIN), the date of the
initial determination, and the name
and address of the person who issued
the initial denial. The appeal ietter
shall also indicate which of the
records to which access was denied are
the subjects of the appeal.
(41 FR 36902. Sept. 1. 1976. as ar.icnded at
50 FR 51 .59, Dec. 18, 1985]
§ 2.115 Appeal determinations; by whom
made.
(a) The General Counsel shall make
one of the following legal determina-
tions in connection with every appeal
from the initial denial of . 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 man-
datory disclosure but legally may be
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thsclosed as a matter of Agency discre-
tion.
(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 Administra-
tor for External Affairs. If the Assist-
ant Adrninistant Administrator deter.
mines that the public interest would
not be served by disclosure, .a determi-
nation 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 request-
ed by the appropriate Assistant Ad-
ministrator, Associate Administrator,
Regional Administrator, the General
Counsel, or the head of a headquar-
ters staff office) determines that the
public interest would not be served by
disclosure, in which case the General
Counsel shall issue a determination
denying the appeal. This review by the
Assistant Administrator for External
Affairs shall not apply to appeals from
inital determinations by the Office of
Inspector General to deny requests.
(C) The General Counsel may dele-
gate his authority under paragraph (a)
of this section to a Regional Counsel,
or to any other attorney employed on
a full-time basis by EPA, in connection
with any category of appeals or any
individual appeal.
(d) The Assistant Administrator for
External Affairs may delegate the au-
thority under paragraph (b) of this
Section to the Deputy Assistant Ad-
ministrator for External Affairs.
(41 FR 36902, Sept. 1, 1976, amended at
SO PR 51659. Dec. 18, 19851
2.116 Contents of determination denying
appeal.
(a) Except as provided In paragraph
(b) of this section each determination
denying an appeal from an initial
denial shall be in writing, shall state
‘hich of the exemptions in 5 U.S.C.
5 2(b) apply to each requested exist-
rig record, and shall state the
reason(s) for denial of the appeal. A
§2.117
denial determination shall also state
the name and position of eachEPA of-
ficer or employee who directed that
the appeal be denied. Such a determi-
nation shall further state that the
person whose request was denied may
obtain de novo judicial review of the
denial by complaint filed with the dis-
trict court of the United States In the
district in which the complainant re-
sides, or has his principal place of
business, or in which the Agency
records are situated, or in the District
of Columbia, pursuant to 5 U.S.C.
552(a)(4).
(b) No determination denying an
appeal 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 informa-
tion, confidential personal information
or classified national security informa-
tion. Instead of identifying the exist-
ence 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).
(53 FR 217. Jan. 5. 19881
§ 2.117 Time allowed for issuance of
appeal determination.
(a) Except as otherwise provided in
this section, not later than the twenti-
eth working day after the date of re-
ceipt by the Freedom of Information
Officer at EPA Headquarters of an
appeal from an initial denial of a re-
quest 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 Head-
quarters, except as otherwise provided
in § 2.205(a).
Cc) The Office of General Counsel,
after notifying the Freedom of Infor-
mation Officer at EPA Headquarters,
may extend the basic 20-day period es-
tablished under subsection (a) of this
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§2.118
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 rea-
sons 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 abso-
lutely necessary, only for the period
required, and only when one or more
of the following unusual circum-
stances require the extension:
(1) There is a need to search for and
collect the records from field facilities
or other establishments that are sepa-
rate from the office processing the
appeal;
(2) There Is a need to search for, col-.
lect, and appropriately examine a vo-
luminous amount of separate and dis-
tinct 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 .nother agency
having a substantial interest In the de-
termination 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.
§ 2.118 Exemption categore8.
(a) 5 U.S.C. 552(b) establishes nine
exclusive categories of matters which
are exempt from the mandatory dis-
closure requirements of 5 U.S.C.
552(a). No request 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 cr1-
terla established by an Executive
Order to be kept secret in the interest
of national defense or foreign policy
and are In fact properly classified pur-
suant to such Executive Order,
(2) Related solely to the internal
personnel rules and practices of an
agency;
(3) Specifically exempted from dis-
closure by statute (other than 5 U.S.C.
552(b)): Provided ,, That such statute:
40 CFR Ch. I (7-1-89 EdItion)
(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 unwarrant-
ed invasion of personal privacy;
(7)(t) Records or information com-
piled for law enforcement purposes,
but only to the extent that the pro-
duction of such law enforcement
records or information
(A) Could reasonably be expected to
interfere with enforcement proceed-
ings;
(B) Would deprive a person of a
right to a fair trial or an impartial ad-
judication;
(C) Could reasonably be expected to
constitute an unwarranted invasion of
personal privacy;
(D) Could reasonably be expected to
disclose the identity of a confidential
source, including a State, local, or for-
eign agency or authority or any pri-
vate institution which furnished infor-
mation on a confidential basis, and, In
the case of a record or information
compiled by a criminal law enforce-
ment authority in the course of a
criminal investigation, or by an agency
conducting a lawful national security
intelligence investigation, Information
furnished by a confidential source;
(E) Would disclose techniques and.
procedures for law enforcement Inves-
tigations or prosecutions, or would dis-
close guidelines for law enforcement
investigations or prosecutions if such .
disclosure could reasonably be expect.’
ed to risk circumvention of the law; of ‘
(F) Could reasonably be expected t0
endanger the life or physical safety of
any individual.
(U) (Reserved)
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• (8) Contained In or related to exami-
nation, operating, or condition reports
prepared by. on behalf of, or for the
use of an agency responsible for the
regulation or supervision of finanical
institutlon.s or
(9) Geological and geophysical irifor-
mation and data, including maps, con-
cerning wells.
(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.
[ 41 FR 36902, Sept. 1, 1976. as amended at
43 FR 40000, Sept. 8. 1978; 53 FR 217, Jan.
5. 1988)
§ 2.119 Discretionary release of exempt
documents.
(a) An EPA office may, irkits discre-
tion, release requested records despite
the applicability of one or more of the
xernptions 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 withhold-
ing the records.
(b) As a matter of policy, EPA will
not release a requested record if EPA
has determined that one or more of
thc exemptions listed in § 2.118(a) (1),
(3). (4), (6). (8), or (9), applies to the
record, except when ordered to do so
by a Federal court or in exceptional
circun, tances under appropriate re-
strictions with the approval of the
Office of General Counsel or a Re-
gional Counsel.
*2.120 Fees• payment• waiver.
(a) Fee schedule Requesters shall be
charged the full allowable direct costs
Incurred by the Agency in responding
to a FdA request However, If EPA.
Uses a contractor to search for, repro-
duce or disseminate records responsive
to a request the cost to the requester
• ha1l not exceed the cost of the
Agency Itself Performing the service.
(I) There are fo - categories of re-
ques Fees for each of the categories
‘•l11 be charged as follows:
() Comxner jai use requests. If the
req 5 seeks disclosure of records for
a com ercjal use, the requester shall
charged for the time spent search-
ing for the requested record, reviewing
§ 2.120
the record to determine whether it
should be disclosed and for the cost of
each page of duplication. Commercial
use requesters should note that EPA
also may charge fees to them for time
spent searching for and/or reviewing
records, even if EPA fails to locate the
records or If the records located are
determined to be exempt from disclo-
sure.
(ii) Requests from an educational or
non-commercial scientific institution
whose purpose is scholarly or scientif-
ic research, involving a request which
is not for a commercial use and seeks
disclosure of records. In the case of
such a request, the requester shall be
charged only for the duplication cost
of the records, except that the first
100 pages of duplication shall be fur-
nished without charge.
(iii) Requests from a representative
of the news media, involving a request
which is not for a commercial use and
seeks disclosure of records. In the case
of such a request, the requester shall
be charged only for the duplication
cost of the records, except that the
first 100 pages of duplication shall be
furnished without charge.
(iv) All other requests. If the request
seeks disclosure of records other than
as described in paragraphs (a)(1) (I),
(ii). and (iii) of this section, the re-
quester shall be charged the full cost
of search and duplication. However,
the first two hours of search time (or
its cost equivalent) and the first 100
pages of duplication (or their cost
equivalent) shall be furnished without
charge. Requesters in the “all other
requests” category should note that
EPA also may charge fees to them for
time spent searching for records, even
if EPA fails to locate the records or if
the records located are determined to
be exempt from disclosure.
(2) The determination of a request-
er’s fee category will be based on the
following:
(i) Commercial use requesters: The
use to which the requester will put the
doctmients requested;
(ii) Educational and non-commercial
scientific institution requestors: Iden-
tity of the requester and the use to
which the requestor will put the docu-
ments requested;
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§ 2.120
40 CFR Ch. I (7-1-88 Edition)
(iii) Representatives of the news
media requesters: The identity of the
requester and the use to which the re-
questor will put the documents re-
quested.
(3) Fees will be charged to request-
ers, as appropriate, for search, duplica-
tion and review of requested records in
accordance with the following sched-
ule:
(i) Manual search for records.
(A) EPA Employees: For each ½
hour or portion thereof:
(1) GS-8 and below: $4.00.
(2) GS-9 and above: $10.00.
(B) Contractor employees: The re-
questor will be charged for actual
charges up to but not exceeding the
rate which would have been charged
had EPA employees conducted the
search.
(ii) Computer search for records
charges will consist of:
(A) EPA employee operators: For
each V 2 hour or portien thereof:
(1) GS-8 and below: $4.00.
(2) GS-9 and above: $10.00, plus.
(B) Contractor operators: Reques
tors will be charged for the actual
charges up to but not exceeding the
rate which would have been charged
had EPA employees conducted the
search (see paragraph (a)(3)(i)(A) of
this section), plus.
(C) Actual computer resource usage
charges for this search.
(iii) Review of records. For each ½
hour or portion thereof (EPA employ-
ees):
(A) GS-8 and below: $4.00.
(B) GS-9 and above: $10.00.
(iv) Duplication or reproduction of
records.
(A) Duplication or reproduction of
documents by EPA employees (paper
copy of paper original): $.15 per page.
(B) Computer printouts (other than
those calculated in a direct-cost bill-
ing—see paragraph (a)(3)(ii) of this
section ‘Computer search for
records”) $.15 per page.
(C) Other methods of duplication or
reproduction, including, but not limit-
ed to, duplication of photographs;
microfilm and magnetic tape, will be
charged at the actual direct cost to
EPA.
(4) Other charges.
(I) Other charges incurred in re-
sponding to a request including but
not limited to, special handling or
transportation of records, will be
charged at the actual direct cost to
EPA.
(ii) Certification or authentication of
records: $25.00 per certification or au-
thentication.
(5) No charge shall be made—
(i) For the cost of preparing or re-
viewing letters of response to a request
or appeal;
(Ii) For time spent resolving legal or
policy issues concerning the applica-
tion of exemptions;
(iii) For search time and the first 100
pages of duplication for requests de-
scribed in § 2.120(a)(1) (ii) and (iii) of
this section;
(iv) For the first two hours of search
time (or its cost equivalent) and for
the first 100 pages of duplication for
requests described in § 2.120(a)(1)(iv)
of this section;
(v) 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. However, when EPA reasonably
believes that a requester or group of
requesters is attempting to break a re-
quest down into a series of requests
for the purpose of avoiding the assess-
ment of fees, EPA will aggregate such
requests to determine the total fee,
and will charge accordingly;
(vi) For responding to a request by
an individual for one copy of a record
retrievable by the requesting individ-
ual’s name or personal identifier from
a Privacy Act system of records;
(vii) For furnishing records request-
ed by either House of Congress, or by
a duly authorized committee or sub-
commitcee of Congress, unless the
records are requested for the benefit
of an individual Member of Congress
or for a constituent;
(viii) For furnishing records request-
ed by and for the official use of other
Federal agencies; or
(ix) For furnishing records needed
by an EPA contractor, subcontractor.
or grantee to perform the work re”
quired by the EPA contract or grant.
(b) Method of payment. All fee paY-
ments shall be in the form of a check
or money order payable to the “U.s
FREEDOM OF INFORMATION ACT MANUAL
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Environmental Protection Agency
Environmental Protection Agency”
and shall be sent (accompanied by a
reference to the pertinent Request
rdentification Number(s)) to the ap-
propriate Headquarters or Regional
Office lock box address:
(1) EPA—Washington Headquarters,
P.O. Box 360277M, Pittsburgh, PA
15251:
(2) EPA—Region 1, P.O. Box
360197M, Pittsburgh, PA 15251;
(3) EPA—Region 2, P.O. Box
360188M, Pittsburgh, PA 15251;
(4) EPA—Region 3, P.O. Box
360515M, Pittsburgh, PA 15251;
(5) EPA—Region 4, P.O. Box 100142,
Atlanta, GA. 30384;
(6) EPA—Region 5, P.O. Box 70753,
Chicago, IL 60673;
(7) EPA—Region 6, P.O. Box
360582M, Pittsburgh, PA 15251;
(8) EPA—RegIon 7, P.O. Box
360748M, Pittsburgh, PA 15251;
(9) EPA—Region 8, P.O. Box
360859M, Pittsburgh, PA 15251;
(10) EPA—Region 9, P.O. Box
360863M, Pittsburgh, PA 15251;
(11) EPA—Region 10, P.O. Box
360903M, Pittsburgh, PA 15251;
Under the Debt Collection Act of
1982 (Pub. L. 97-365), payment (except
for prepayment) shall be due within
thirty (30) calendar days after the
date of billing. If payment is not re-
ceived at the end of thlr y calendar
days, interest and a late payment han-
dling charge will be assessed. in addi
tion, under this Act, a penalty charge
w Ii be applied on any principal
amount not paid within ninety (90)
calendar days after the due date for
payment By the authority of the
Debt Collection Act of 1982, delln-
(iuent amounts due may be collected
througI administrative offset or re-
(erred to private collection agencies.
Information related todelinquent ac-
counts may also be reported to the ap-
Propriate credit agencies.
(C) As3urance 0/payment. (1) If an
PA office estimates that the fees for
Proce ing a request (or aggregated re-
QUests as described in § 2.120(a)(5)(vl)
of this section) will exceed $25.00, that
office need not search for, duplicate or
disclose records in response to the
request(s) until the requester assures
Payment of the total amount of fees
C3tlmated to become due under this
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§2.120
section. In such cases, the EPA office
will promptly inform the requester (by
telephone It practicable) of the need
to make assurance of payment.
(2) An EPA office may not require a
requester to make an advance pay-
ment. i.e. payment before work is com-
menced or continued on a request,
unless:
(I) A requester has previously failed
to pay a fee charged In a timely fash-
ion (i.e., wIthin 30 days after the date
of the billing), or
(Ii) The EPA office estimates or de-
termines that the allowable charges
that a requester may be required to
pay are likely to exceed $250.00. Then
the EPA office will notify the request-
er of the likely cost and obtain satis-
factory assurance of full payment
where the requester has a history of
prompt payment of FOIA fees, or re-
quire an advance payment of an
amount up to the full estimated
charges in the case of requesters with
no history of payment. If such ad-
vance payment is not received within
30 days after EPA’s billing, the re-
quest will not be processed and the re-
quest will be closed. See also
§ 2.112(d).
(d) Reduction or waiver of fee. (1)
The fee chargeable under this section
shall be reduced or waived by EPA if
the Agency determines that disclosure
of the information:
(i) Is in the public interest because it
is likely to contribute significantly to
public understanding of the operations
or activities of the government; and
(ii) Is not primarily in the commer-
cial Interest of the requestor.
(2) Both of these requirements must
be satisfied before fees properly as-
sessable can be waived or reduced.
(3) The Agency will employ the fol-
lowing four factors In determining
whether the first requirement has
been met:
(i) The subjecl of the request:
Whether the subject of the requested
records concerns “the operations or
activities of the government”;
(Ii) The informative value of the in-
formation to be disclosed: Whether
the disclosure Is “likely to contribute
to an understanding of government
operations or activities”;
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§ 2.121
(iii) The contribution to an under-
standing of the subject by the general
public likely to result from disclosure:
Whether disclosure of the requested
information will contribute to “public
understanding”; and
(iv) The significance of the contribu-
tion to public understanding: Whether
disclosure is likely to contribute “sig-
nificantly” to public understanding of
government operations or activities.
(4) The Agency will employ the fol-
lowing factors in determining whether
the second requirement has been met:
(I) The existence and magnitude of a
commercial interest: Whether the re-
quester has a commercial interest that
would be furthered by the requested
disclosure; and, if so
(ii) The primary interest in disclo-
sure: Whether the magnitude of the
identified commercial interest of the
requester is sufficiently large, in com-
parison with the public interest in dis-
closure, that disclosure is “primarily in
the commercial interest of the re-
quester.”
(5) In all cases, the burden shall be
on the requester to present informa-
tion in support of a request for a
waiver of fees. A request for reduction
or waiver of fees should include:
(i) A clear statement of the request-
er’s interest in the requested docu-
ments;
(ii) The use proposed for the docu-
ments and whether the requester will
derive income or other benefit from
such use;
(iii) A statement of how the public
will benefit from such use and from
the release of the requested docu-
ments: and
(iv) If specialized use of the docu-
ments or information is contemplated,
a statement of the requester’s qualifi-
cations that are relevant to the spe-
cialized use.
(6) A request for reduction or waiver
of fees shall be addressed to the ap-
propriate Freedom of Information Of-
ficer. The requester shall be informed
in writing of the Agency’s decision
whether to grant or deny the fee
waiver or fee reduction request. This
decision may be appealed by letter ad-
dressed to the EPA Freedom of Infor-
- matlon Officer. The General Counsel
shall decide such appeals. The Gener-
40 CFR Ch. I (7-1-88 Edition)
al Counsel may redelegate this author-
ity only to the Deputy General Coun-
sel or the Associate General Counsel
for Grants. Contracts and General
Law.
(e) The Financial Management
Office shall maintain a record of all
fees charged requesters for searching
for, reviewing and reproducing re-
quested records under this section. If
after the end of 60 calendar days from
the date on which request for pay-
ment was made the requester has not
submitted payment to the appropriate
EPA billing address (as listed In
§ 2.120(b)). the Financial Management
Division shall place the requester’s
name on a delinquent list which is
sent to the EPA Freedom of In.forma-
tion Officer. If a requ ster whose
name appears on the delinquent list
makes a request under this part, the
EPA Freedom of Information Officer
shall inform the requester that EPA
will not process the request until the
requester submits payment of the
overdue fee from the earlier request.
Any request made by an individual
who specifies an affiliation with or
representation cf a corporation, asso-
ciation, 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 was overdue did
not make the request on behalf of the
organization the organization will be
removed from the delinquent list but
the name of the individual shall
remain on the list. A requester 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.
(53 FR 217, Jan. 5, 1988)
§ 2.121 Exclusions.
(a) Whenever a request is made
which involves access to records de-
scribed in § 2.118(a)(7)(i)(A), and
(1) The investigation or proceeding
involves a possible violation of crirfl.1
nal law: and
(2) There is reason to believe that
the subject of the investigation or prO
ceedmg is not aware of its pendenCY.
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§ 2.201
and disclosure of the existence of such
records could reasonably be expected
to interfere with enforcement proceed-
in s, EPA shall, during only such time
as the circumstances continue, treat
the records as not subject to the re-
quirements of 5 U.S.C. 552 and this
subpart.
(b) Whenever informant records
maintained by the Agency under an
informant’s name or personal Identifi-
er are requested by a third party ac-
cording to the Informant’s name or
personal Identifier and the Inform-
ant s status as an informant has not
been officially confirmed, EPA shall
treat the records as not subject to the
requirements of 5 U.S.C. 552 and this
subpart.
(c) No determination relying on this
section shall be issued without the
concurrence of the General Counsel or
his designee. The General Counsel has
designated the Contracts and Informa-
tion Lay.’ Branch to act on these re-
quests for concurrence.
(d) ith initial determination which
only relies on thL section will not In-
cIu ’ .e notice of appeal rights.
153 FR 219. Jan. 5, 1988]
!ubprrt B—Confidenti lity of
B’ siness Information
§ 2.201 Definitions.
Fc.r the purposes oi this subpart:
(a) “Person” mea is an individual.
1)artnersaip, corporation, association,
or otlier public or private organization
or legal entity, including Federal,
State or local governmental bodies and
agencies and their employees.
(b) ‘Business” means any person en-
gaged In a business, trade, employ-
ment. calling or profession, whether or
flOt 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 indi”idual.
‘C) “3usiness Information” (some-
times referred to simply s “informa-
tion ) means any information which
Pertains to the interests of any busi-
fl ss. whiCh was developed or acquired
by that business and (except where
the context otherwise requires) which
is P°Ss ssed by EPA in recorded form.
(d) “Affected business” means, with
reference to an Item of business Infor-
mation, a business which has asserted
(and not waived or withdrawn) a busi-
ness confidentiality claim covering the
Information, or a business which could
be expected to make such a claim Lf It
were aware that disclosure of the in-
formation to the public was proposed.
(e) “Reasons of business confiden-
tiality” include the concept of trade
secrecy and other related legal con-
cepts which give (or may give) a busi-
ness the right to preserve the confi-
dentiality of business Information and
to limit its use or disclosure by others
in order that the business may obtain
or retain business advantages It de-
rives from its rights in the informa-
tion. The definition Is meant to en-
compass 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 var-
ious statutes cited in § 2.301 through
§ 2.309.
(1) (Reserved]
(g) information which is” available
to the public” Is information in EPA’s
possession which EPA will furnish to
any member o the public upon re-
quest and which EPA may make
public, release or otherwise make
available to any persen whether or ot
its disclosure has been requested.
(h) “Businezs 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.
‘1) “Voluntarily submitted informa-
tion” means. business information in
EPA’s possession—
(1) The submission of which EPA
had no statutory or contractual au-
thority 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 appli-
cability. including such regulatory pro-
grams as permit, licensing, registra-
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§t202
40 CFR Ch. I (7-149 EdItion)
tion, or certification programs, but ex-
cluding programs concerned solely or
primarily with the award or adminin-
tration by EPA of contracts or grants.
(j) “Recorded” means written or oth-
erwise registered In some form for pre-
serving Information, including such
forms as drawings, photographs, video-
tape, sound recordings, punched cards,
and computer tape or disk.
(k) (Reserved]
(1) “AdmInistrator,” “Regional Ad-
rnlrilstrator ,” “General Counsel,” “Re-
gional Counsel.” and “Freedom of In-
formation Officer” mean the EPA off I-
cers or employees occupying the posi-
tions so titled.
(m) “EPA office” means any organi-
zational 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 by an “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, in-
cluding the various Offices of Region-
al Counsel. (See paragraph ( in) of this
section.
(0) 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 con-
taining more than one kind of infor-
mation.
(a) Sections 2.201 through 2.215 es-
tablish 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 treat-
ment of information gathered under
such statutes. Sections 2.301 through
2.3 11 prescribe rules for treatment of
certain categories of business informs.-
tion obtained under the various statu-
tory provisions. Paragraph (b) of each
of those sections should be consulted
to determine whether any of those
sections applies to the particular infor-
mation in question.
(c) The basic rules of H 2.201
through 2.215 govern except to the
extent that they are modified or sup-
planted by the special rules of H 2.301
through 2.311. In the event of a con-
flict 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 rule shall govern,
(d) If two or more of the sections
containing special rules apply to the
particular information In question.
and the appUcable sections prescribe
conflicting special rules for the treat-
ment of the Information, the rule
which provides greater or wider avail-
ability to the public of the Informa-
tion shall govern.
(e) For most purposes, a document
or other record may usefully be treat-
ed as a single unit of “information,”
even though in fact the document or
record is comprised of a collection of
individual Items of Information. How-
ever, In applying the provisions of this
subpart, it will often be necessary to
separate the Individual Items of infor-
mation into two or more categories,
and to afford different treatment to
the information in each such category.
The need for differentiation of this
type may arise, e.g., because a business
confidentiality claim covers only a por-
tion of a record, or because only a por-
tion of the record Is eligible for confi-
dential treatment. EPA offices taking
action under this subpart must be
alert to this problem.
(f) In taking actions under this sub-
part, EPA offices should consider
whether It Is possible to obtain the af-
fected business’s consent to disclosure
of useful portions of records while pro-
tecting 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
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Envlronm.ntal Prot.ctlon Ag.ncy
by disclosing data In the form of in-
dustry-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 in.formation
which concerns an Individual solely in
his personal, as opposed to business,
capacity.
(41 FR 36902. Sept. 1, 1976, as amended at
43 FR 40000. Sept. 8. 1978; 50 FR 51681.
Dec. 18, 19853
§ 2.203 Notice to be included in EPA re-
quests, 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 infor-
mation 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 infor-
mation, the request, demand, or form
shall include or enclose a notice
which—
(1) States that the business may, if It
desires, assert a business confidential-
ity claim covering part or all of the in-
formation, in the manner described by
paragraph (b) of this section, and that
information covered by such a claim
wiU be disclosed by EPA only to the
extent, and by means of the proce-
dures, set forth in this subpart;
(2) States that if no such claim ac-
companies the Information when it Is
received by EPA, it may be made avail-
able to the public by EPA without fur-
ther notice to the business; and
(3) FurnIshes a citation of the loca-
tion of this subpart in the Code of
Federal Regulations and the FEDERAL
REGXs1ER.
(b) Method and time of asserting
business confidentiality claim. A busi-
ness which is submitting information
to EPA may assert a business conf i-
dentiality claim covering the informa-
tion by placing on (or attaching to)
the information, at the time it is sub-
mitted to EPA, a cover sheet, stamped
§2.204
or typed legend, or other suitable form
of notice employing language such as
“trade secret,” “proprietary,” or “com-
pany confidential.” Allegedly confi-
dential portions of otherwise non-con-
fidential documents should be clearly
identified by the business, and may be
submitted separately to facilitate Iden-
tification and handling by EPA. If the
business desires confidential treat-
ment only until a certain date or until
the occurrence of a certain event, the
notice should so state.
(c) Effect 0/failure to assert claim at
time of submission of Information. If
information was submitted by a busi-
ness to EPA on or after October 1,
1976, 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 nor-
mally required by § 2.204(c)(2) need
not be made. If a claim covering the
information is received after the Infor-
mation itself is received, EPA will
make such efforts as are administra-
tively 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.
§ 2.204 Initial action by EPA office.
(a) Situations requiring action. This
section prescribes procedures to be
used by EPA offices In making initial
determinations of whether business In-
formation Is entitled to confidential
treatment for reasons of business con-
fidentiality. Action shall be taken
under this section whenever an EPA
office:
(1) Learns that it is responsible for
responding to a request under 5 U.S.C.
552 for the release of business infor-
mation; in such a case, the office shall
issue an initial determination within
the period specified in § 2.112;
(2) Desires to determine whether
business Information in its possession
is entitled to confidential treatment,
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§t204
even though no request for release of
the information has been received; or
(3) Determines that it is likely that
EPA eventually will be requested to
disclose the Information at some
future date and thus will have to de-
termine whether the Information Is
entitled to confidential treatment. In
such a case this section’s procedures
should be Initiated at the earliest prac-
ticable time, in order to Increase the
time available for preparation and
submI ion of comments and for Issu-
ance 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.
(b) Previous confldentiazlty deter,nl-
nation. The EPA office shall first as-
certain whether there has been a pre-
vious determination, issued by a Fed-
eral court or by an EPA legal office
acting under this subpart, holding
that the information in question Is en-
titled to confidential treatment for
reasons of business confidentiality.
(1) If such a determination holds
that the information Is entitled to con-
fidential treatment, the EPA Office
shall furnish any person whose re-
quest for the Information is pending
under 5 U.S.C. 552 an initial determi-
nation (see * 2.111 and 2.113) that
the information has previously been
determined to be entitled to confiden-
tial treatment, and that the request is
therefore denied. The office shall fur-
nish such person the appropriate case
citation or EPA determination. If the
EPA office believes that a previous de-
termination 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 pre-
vious determination, the EPA office
shall take action under paragraph (C)
of this section.
(C) Determining existence of business
coii,fidentiality claims. (1) Whenever
action under this paragraph is re-
quired by paragraph (b)(2) of this sec-
tion, the EPA office shall examine the
information and the office’s records to
determine which businesses, If any,
40 CM C l i. I (7-149 EdItIon)
are affected businesses (see * 2.201(d),
and to determine which businesses if
any, have asserted business confiden-
tiality claImR which remain applicable
to the Information. If any business 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 asserted a
claim, might be expected to assert a
claim if it knew EPA proposed to dis-
close the information, the EPA office
shall contact a responsible official of
each such business to learn whether
the business asserts a claim covering
the information. However, no such in-
quiry need be made to any business—
(A) Which failed to assert a claim
covering the Information when re-
sponding to an EPA request or
demand, 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 fail-
ure could result in disclosure of the in-
formation to the public; or
(C) Which has otherwise waived or
withdrawn a claim covering the infor-
mation.
(Ii) If a request for release of the in-
formation under 5 U.S.C. 552 Is pend-
ing at the time inquiry is made under
this paragraph (c)(2), the inquiry shall
be made by telephone or equally
prompt means, and the responsible of-
ficial 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 re-
s t ilts of any inquiry under this para-
graph (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 p .
graph (c)(2) of this section, the EPA
office knows of no claim covering the
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FREEDOM OF INFORMATION ACT MANUAL
Envlroflmsfltal Protection Agency
Information and the time for response
to any inquiry has passed, the Infor-
znation shall be treated for purposes of
this subpart as not entitled to confi-
dential treatment.
(d) Preliminary determination.
Whenever action under this paragraph
is required by paragraph (c)(1) or (2)
of this section on any busIness’8 claim,
the EPA Office shall make a determi-
nation with respect to each such
claim. Each determination shall be
made after consideration of the provi-
sions of § 2.203, the applicable sub-
stantive criteria In 2.208 or elsewhere
in this subpart, and any previously-
issued determinations under this sub-
part which are applicable.
(1) If, In connection with any busi-
ness’s claim, the office determines
that the Information may be entitled
to confidential treatment, the office
shall—
(1) FurnIsh the notice oçopportunity
to submit comments prescribed by
paragraph (e) of this section to each
business which is known to have as-
serted an applicable claim and which
has not previously been furnished
such notice with regard to the Infor-
mation In question;
(ii) Furnish, to any person whose re-
quest for release of the information is
pending under 5 U.S.C. 552, a determi-
nation (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 detemina-
tion will be issued by an EPA legal
office: and
(iii) Refer the matter to the appro-
priate 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 applica-
ble 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). However, If a business has
previously been furnished notice
1550
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§2.204
under t 2.205(f) with respect to the
same Information, 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.
Ce) Notice to affected businesses; op-
portunity 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 opportu-
nity to comment. The notice shall be
furnished by certified mail (return re-
ceipt requested), by personal delivery,
or by other means which allows verifi-
cation of the fact and date of receipt.
The notice shall state the address of
the office to which the business’s com-
ments shall be addressed (the EPA
office furnishing the notice, unless the
General Counsel has directed other-
wise), the time aUowed 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 business’s failure to
furnish timely comments as a waiver
of the business’s claim.
(2) If action under this section Is oc-
casioned by a request for the informa-
tion 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 rea-
sonable period for comments (not less•
than 15 working days after the busi-
ness’s receipt of the written notice).
The time period for comments shall be
considered met If the business’s com-
ments are postmarked or hand deliv-
ered to the office designated In the
notice by the date specified. In all
cases, the notice shall call the busi-
ness’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 repre-
sentative of the business (by tele-
phone or otherwise) that the business
should expect to receive the written
notice, and shall request the business
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40 CFR Ch. I (7-149 EditIon)
to contact the EPA office If the writ-
ten 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 con-
fidential treatment;
(U) 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);
(ill) The purpose for which the In-
formation was furnished to EPA and
the approximate date of submIssion, 11
known;
(iv) Whether a business confidential-
ity claim accompanied the information
when it was received by EPA;
Cv) Measures taken by the business
to guard against undesired disclosure
of the information to others;
(vi) The extent to which the Infor-
mation has been disclosed to others,
and the precautions taken in connec-
tion therewith;
(vii) Pertinent confidentiality deter-
minations, 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 causal relation-
ship between disclosure and such
harmful effects; and
(Ix) Whether the business asserts
that the information Is voluntarily
submitted Information as defined In
§ 2.201(1), 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 re-
sponses to the matters addressed in
paragraphs (e)(4) (i) through (lx) of
this section, although the notice shall
request confirmation of EPA’s under-
standing of such facts where appropri-
ate.
(8) The notice shall refer to
§ 2.205(c) and shall include the state-
ment prescribed by § 2.203(a).
(f) Materials to be furni,shed to EPA
legal offtce. When a matter is referred
to an EPA legal office under para-
graph (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 for-
warding a copy of the information Im-
practical) representative samples, a de-
scription of the Information, or both;
(2) A description of the circum-
stances and date of EPA’s acquisition
of the information;
(3) The name, address, and tele-
phone number of the EPA
employee(s) most familiar with the in-
formation;
(4) The name, address and telephone
number of each business which asserts
an applicable business confldentiallty
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;
(8) Comments concerning each busi-
ness’s compliance or noncompliance
with applicable requirements of
§ 2.203;
(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 corn-
ments on whether the information is
entitled to confidential treatment;
(9) The office’s comments concern-
ing the appropriate substantive crite-
ria under this subpart, and informa-
tion the office possesses concerning
the information’s entitlement to confi-
dential treatment; and
(10) Copies of other correspondence
or memoranda which pertain to the
matter.
(41 FR 36902. Sept. 1, 1976, as amended at
43 FR 40000. Sept. 8, 1978; 50 FR 51681.
Dec. 18, 19851
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Environmental Protection Agency
§ 2.205 Final confidentiality determina-
tion by EPA legal office.
(a) Role of EPA legal office. (1) The
appropriate EPA legal office (see para-
graph (i) of this section) is responsible
for making the final administrative de-
termination of whether or not busi-
ness information covered by a business
confidentiality claim is entitled to con-
fidential 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 deter-
mination shall serve as the final deter-
mination on appeal from an initial
denial of the request.
(i) If the initial denial was issued
under § 2.204(b)(1), a final determina-
tion by the EPA legal office is neces-
sary 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 deterrni-
nation in every case, unless the re-
quest has been withdrawn. (Initial de-
nials under § 2.204(d)(1) are of a proce-
dural nature, to allow further inquiry
into the merits of the matter, and a re-
questor 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 issu-
ance of the denial, the matter shall be
handled as if an appeal had been re-
ceived on that day, for purposes of es-
tablishing a schedule for issuance of
an appeal decision under § 2.117 of
‘his part.
(b) Comment period, extensions; Un-
ti7flejjn -. 8 as waiver of claim. (1) Each
busjnesc which has been furnished the
notice and opportunity to comment
prezcribed by § 2.204(d)(1) and
2 . 2 04(e) shall furnish its comments
to the office specified in the notice in
time to be postmarked or hand deliv-
ered to that office riot later than the
date specified in the notice (or the
date established in lieu thereof under
IllS 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
e EPA legal office. Except in ex-
traordinary circumstances, the EPA
§ 2.205
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. 552 Is
pending.
(3) The period for submission of
comments by a business may be short-
ened in the manner described in para-
graph (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 (in-
cluding any approved extension), that
office shall promptly inquire whether
the business has complied with para-
graph (b)(1) of this section. If the
business has complied with paragraph
(b)(1) but the comments have been
lost in transmission, duplicate com-
ments shall be requested.
(c) Confidential treatment of com-
ments from business. If information
submitted to EPA by a business as
part of its comments under this sec-
tion pertains to the business’s 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 treat-
ment and will not be disclosed by EPA
without the business’s consent, unless
its disclosure is duly ordered by a Fed-
eral court, notwithstanding other pro-
visions 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 inf or-
mation, the office shall determine that
the information is not entitled to con-
fidential 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 pro-
visions of this subpart, army previously-
issued determinations under this sub-
part which are pertinent, the materi-
als furnished it under § 2.204(f), and
such other materials as it finds appro-
priate. With respect to each claim, the
office shall determine whether or not
the information is entitled to confi-
43
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§ 2.205
40 CFR Ch. I (7-1-88 Edition)
dential treatment for the benefit of
the business that asserted the claim,
and the period of any such entitle-
ment (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 in-
formation, the EPA legal office shall
take action appropriate under the par-
ticular circumstances to protect the in-
terests of all persons concerned (in-
cluding 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 confi-
dential treatment for the full period
requested by the business which made
the claim. EPA shall m aintain the in-
formation in confidehce for such
period, subject to paragraph (h) of
this section, § 2.209, and the other pro-
visions of this subpart which authorize
disclosure in specified circumstances,
and the office shall so inform the busi-
ness. If any person’s request for the
release of the information is then
pending under 5 U.S.C. 552, the EPA
legal office shall issue a final determi-
nation denying that request.
(f) Determination that information
is not entitled to confidential treat-
ment, notice; waiting period., release of
information. (1) Notice of denial (or
partial denial) of a business confiden-
tiality 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 busi-
ness which has asserted a claim appli-
cable to the information and which
has furnished timely comments under
paragraph (b) of this section, when-
ever the EPA legal office determines
that the information is not entitled to
confidential treatment under this sub-
part for the benefit of the business, or
determines that the period of any en-
titlement to confidential treatment is
shorter than that requested by the
business.
(2) The notice prescribed by para-
graph (f)(1) of this section shall be
written, and shall be furnished by cer-
tified 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 re-
spect 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 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 ju-
dicial 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 nonethe-
less 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 pre-
liminafy injunction in the action or
has otherwise upheld the EPA deter-
mination, or whenever it appears tO
the EPA legal office, after reasonable
notice to the business, that the busi-
ness is not taking appropriate mea.5-
ures to obtain a speedy resolution Of
the action. If the information has
been found to be temporarily entitled
to confidential treatment, the not1
shall further state that the in.forIflS
tion will not be disclosed prior to the
end of the period of such tempora1 Y
entitlement to confidential treatmeflt
(3) The- period established in
notice under paragraph (f)(2) of tliI5
section for commencement of
action to obtain judicial review may
extended if, before the expiratiofl 0
such period, a request for an extension
FREEDOM OF INFORMATION ACT MANUAL
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Environmental Protection Agency
§ 2.205
is made by the business and approved
by the EPA legal office. Except in ex-
traordinary 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. 552 is
pending.
(4) After the expiration of any
period of temporary entitlement to
confidential treatment, a determina-
tion under this paragraph (f) shall be
implemented by the EPA legal office
by making the information available
to the public (In the absence of a court
order prohibiting disclosure) when-
ever—
(i) The period provided for com-
mencement by a business of an action
to obtain judicial review of the deter-
mination has expired without notice
to the EPA legal office of commence-
ment of such an action;
(ii) The court, In a time y-com-
rnenced action, has denied the busi-
ness’ motion for a preliminary injunc-
tion, or has otherwise upheld the EPA
1etermjnation; or
(iii) The EPA legal office, after rea-
sonable 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 re-
lease of the inrorrnation 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 de-
termination under 5 U.S.C. 552 stating
the c1rcurr tances under which the in-
formation will be released.
(g) Emergency situations. If the
General Counsel finds that disclosure
of information covered by a claim
V. ould be helpful in alleviating a situa-
tion Posing an imminent and substan-
tial danger to public health or safety,
he may prescribe and make known to
trltert.sted persons such shorter corn-
mint period (paragraph (b) of this sec-
lion). post-determination Waiting
Pl’rlod (paragraph (f) of this section),
or both as he finds necessary under
the circu tances
(h Modification of prior determina-
(tort A
uetermlnation that informa-
LLOn Is entitled to confidential treat-
ment fo
r ue benefit of a busmess,
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 informa-
tion’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 con-
cludes that such an earlier determina-
tion 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 com-
ments 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. Determinations
under this section may be made only
by, or with the concurrence of, the
General Counsel.
(i) Delegation and redelegation of
authority. Unless the General Counsel
otherwise directs, or this subpart oth-
erwise specifically provides, determi-
nations 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 full-time basis under the
General Counsel’s supervision. A Re-
gional 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.
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FREEDOM OF INFORMATION ACT MANUAL
§ 2.206
(41 FR 36902. Sept. 1. 1976, as amended at
50 FR 51661, Dec. 18, 1985]
§ 2.206 Advance confidentiality determina.
tions.
(a) An advance determination under
this section may be issued by an EPA
legal office if—
(1) EPA has requested or demanded
that a business furnish business infor-
mation to EPA;
(2) The business asserts that the in-
formation, if submitted, would consti-
tute voluntarily submitted informa-
tion under § 2.201(1);
(3) The business will voluntarily
submit the information for use by
EPA only if EPA first determines that
the information is entitled to confi-
dential 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 ad-
vance determination under this sec-
tion shall—
(1) Arrange to have the business fur-
nish 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 comments concerning
the matters addressed in § 2.204(e)(4),
excluding, however, matters addressed
in § 2.204 (e)(4)(iil) and (e)(4)(iv); and
(2) Furnish to the EPA legal office
the materials referred to in § 2.204(f)
(3), (7), (8), and (9).
(c) In making a determination under
this section, the EPA legal office shall
first determine whether or not the in-
formation would constitute voluntarily
submitted information under
§ 2.201(1). If the information would
constitute voluntarily submitted infor-
mation, the legal office shall further
determine whether the information is
entitled to confidential treatment.
(d) If the EPA legal office deter—
mines that the Information would not
constitute voluntarily submitted infor-
mation, or determines that It would
constitute voluntarily submitted infor-
mation but would not be entitled to
confidential treatment, it shall so
inform the business and the EPA
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40 CFR Ch. I (7-1-88 Edition)
office which requested the determina-
tion, stating the basis of the determi-
nation, and shall return to the busi-
ness all copies of the information
which it may have received from the
business (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 in-
formation, the legal office shall retain
a copy of the information, but shall
not disclose it unless ordered by a Fed-
eral 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 di-
rected by a Federal court.
(e) If the EPA legal office deter-
mines that the information would con-
stitute voluntarily submitted informa-
tion and that it is entitled to confiden-
tial treatment, it shall so inform the
EPA office which requested the deter-
mination and the business which sub-
mitted it, and shall forward the infor-
mation to the EPA office which re-
quested 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, re-
lated items of business information;
(2) One or more characteristics
common to all such items of informa-
tion 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 wou.ld
serve a useful purpose.
(b) A class determination shall clea.t-
ly identify the class of information tO
which it pertains.
(c) A class determination may sta
that all of the information i the
class—
(1) Is, or is not, voluntarily subrfli
ted information under § 2.201(1);
(2) Is, or Is not, governed by a par•
ticular section of this subpart, or bY
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Envlronmsntal Prot.ctlon Ag.ncy
§2.209
aticular set of substantive criteria
under this subpart;
(3) Falls to satisfy one or more of
the applicable substantive criteria, and
therefore ineligible for confidential
tzeatment
(4) Satisfies one or more of the ap-
plicable substantive crlterta or
(5) SatIsfies one or more of the ap-
plicable substantive criteria during a
certain period, but will be ineligible
for confidential treatment thereafter.
Cd) The purpose of a class determl-
nation 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.
ccordlngly, the notice of opportunity
to submit comments referred to in
§ 2.204(d)(1)(li) and 2.205(b), and the
jist of materials required to be fur-
nished to the EPA legal office under
2.204(d)(1)(Iit), may be modified to
ceflect the fact that the class determi-
nation has made unnecessary the sub-
mission of materials pertinent to one
or more issues. Moreover, in appropri-
ate cases, action based on the class de-
termination 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 con-
fidentiality determinations.
Determinations issued under § 2.204
through 2.207 shall hold that business
information is entitled to confidential
treatment for the benefit of a particu-
lar business if—
(a) The business has asserted a busi-
ness 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 confidential-
Ity of the informatIon, and that it in-
tends to continue to take such meas-
(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 show-
ing of special need in a Judicial or
quasi-Judicial proceeding);
Cd) 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 circum-
stances,
(a) General. Information which,
under this subpart, Is not available to
the public may nonetheless be dis-
closed to the persons, and In the cir-
cumstances, described by paragraphs
(b) through (g) of this section. (This
section shall not be construed to re-
strict the disclosure of information
which has been determined to be
available to the public. However, bus!-
ness information for which a claim of
confidentiality has been asserted shall
be treated as being entitled to con! 1-
dential treatment until there has been
a determination in accordance with
the procedures of this subpart that
the Information is not entitled to con-
fidential treatment.)
(b) Disclosure to Congress or the
Comptroller General. (1) Upon receipt
of a written request by the Speaker of
the House. President of the Senate,
chairman of a committee or subcom-
mittee, or the Comptroller General, as
appropriate, EPA will disclose business
Information to either House of Con-
gress, 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 In-
formation 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
47
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§ 2.209
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40 CFR Cl i. I (7-1-88 EditIo
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 ad-
vance notice as possible shall be pro-
vided. Where notice cannot be given
before the date established by the re-
questing body for responding to the
request, notice shall be given as
promptly alter 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. Howev-
er. if the requesting body asks in writ-
ing that no notice under this subsec-
tion 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 * iiy
deterrrination under this subpart that
the information is entitled to confi-
den ial treatment.
(C) Disclosure to other Federal agen-
cies. EPA may disclose business infor-
mation to another Federal agency if—
(1) EPA receives a written request
for disclosures of the information
fi om a duly authorized officer or em-
ployee of the other agency or on the
initiative 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 in-
formation is needed;
(3) When the information has been
claimed as confidential or has been de-
termined to be confidential, the re-
sponsible 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 dis-
cretion of the office, such notice may
be given by notice published in the
F g kI. REGIsTER at least 10 days
prior to disclosure, or by letter sent by
certified rr ail rett rn receipt requested
or telegram either of wliich must be
received by the affected business at
least 10 days prior to disclosure. How-
ever, no notice shall be required when
EPA furnishes business information to
another Federal agency to perform a
function on behalf of EPA. includi
but not limited to—
(I) Disclosure to the Department o
Justice for purposes of investigation o
prosecution of civil or criminal viola
tions of Federal law related to EPA ac-
tivities;
(ii) Disclosure to the Department of
Justice for purposes of representing
EPA in any matter; or
(iii) Disclosure to any Federa]
agency for purposes of performing at.
EPA statutory function under at
Interagency agreement.
(4) EPA notifies the other agency of
any unresolved business confidential.
Ity claim covering the information anc
of any determination under this sub
part that the information is entitled to
confidential treatment, and that fur-
ther disclosure of the information may
be a violation of 13 U.S.C. 1905; and
(5) The other agency agrees in writ-
ing not to disclose further any infor-
mation desigi ated 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 obtaned a
written statement from the EPA Gen-
eral Counsel or an EPA Regionni
Counsel that disclosure of the inforrn
mation would be proper under this
subpart.
(d) Court-ordered disclosure. EPA
may disclose any business information
in any manner arid to the extent or
dered by a Federal court. Where possi-
ble, and when not in violation of a spe-
cific directive from the court, the EPA
office disclosing information claimed
as confidential or determined to be
confidential shall provide as much ad-
vance notice as possible to each affect-
ed business of the type of information
to be disclosed and to whom it Is to be
disclosed, unless the affected business
FREEDOM OF INFORMATION ACT MANUAL
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Environmental Protedion Agency
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
p ssux. REGISTER, letter sent by certi-
fied mail return receipt requested, or
telegram.
(e) Disclosure within EPA. An EPA
office, officer, or employee may dis-
close any business Information to an-
other EPA office, officer, or employee
with an official need for the informa-
tion.
(f) Disclosure with consent of busi-
ness. EPA may disclose any business
Information to any person if EPA has
obtained the prior consent of each af-
fected business to such disclosure.
(g) Record of disclosures to be main-
tamed. Each EPA office which dis-
closes in.formation to Congress, a com-
rnlttee 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
he affected businesses, the date of
disclosure, the person or body to
-:hcm disclosure was made, and a de-
scription of the information disclosed.
4i FR 36902, Sept. 1, 1976. as amended at
43 FR 40000, Sept. 8, 1978; 50 FR 51661.
Dec. 18, 1985]
§ 2.210 Nondisclosure for reasons other
than business’ confidentiality or where
disclosure is prohibited by other stat-
ute.
(a) Information which is not entitled
to confIdential treatment under this
subpa -t shall be made available to the
public (using the procedures set forth
in H 2.204 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 mandato-
ry disclosure and cannot or should not
be made available to the publlc. Any
such determination under subpart A
shall be coordinated with actions
taken under this subpart for the pur-
Pose of avoiding delay In responding to
reques under 5 U.S.C. 552.
§2.211
(b) Notwithstanding any other provi-
sion of this subpart, If any statute not
cited in this subpart appears to re-
quire EPA to give confidential treat-
ment to any business Information for
reasons of business confidentiality, the
matter shall be referred promptly to
an EPA legal office for resolution.
Pending resolution, such information
shall be treated as if it were entitled to
confidential treatment,
o 2.211 SafeguardIng of business Informa-
tion; penalty for wrongful disclosure.
(a) No EPA officer or employee may
disclose, or use for his or her private
gain or advantage, any business Infor-
mation 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 busi-
ness Information shall take appropri-
ate measures to properly safeguard
such Information and to protect
against its improper disclosure.
(C) Violation of paragraph (a) or (b)
of this section shall constitute grounds
for dismissal, suspension, fine, or
cther adverse personnel action. Willful
violation of paragraph (a) of this sec-
tion may result in criminal prosecu-
tion under 18 U.S.C. 1905 or other ap-
plicable statute.
(d) Each contractor or subcontractor
with EPA, and each employee of such
contractor or subcontractor, who is
furnished business Information by
EPA under H 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 subcontractors shall
take steps to properly safeguard busi-
ness Information Including following
any security procedures for handling
and safeguarding business information
which are contained in any manuals,
procedures, regulations, or guidelines
provided by EPA. Any violation of this
paragraph shall constitute grounds for
suspension or debarment of the con-
tractor or subcontractor In question. A
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§ 2.212
willful violation of this paragraph may
result in criminal prosecution.
(41 FR 36902, Sept. 1. 1976, as amended at
50 FR 51662, Dec. 18, 1985]
§ 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 infor-
mation, and may designate for each
such category an EPA office (herein-
after referred to as a “control office”)
which shall have responsibility for
taking actions (other than actions re-
quired to be taken by an EPA legal
office) with respect to all information
within such category.
(b) If a control office has been as-
signed 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 of-
ficers and employees) any information
in that category wlth’but first obtain-
ing 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 the ac-
tions and make the determinations re-
quired by § 2.204 with respect to all in-
formation 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 as-
signed 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 ad.
dressee for notices and inquiries.
(a) A business which wishes to desig-
nate a person or office as the proper
addressee of communications from
EPA to the business under this sub-
part may do so by furnishing in writ-
40 CFR Ch. I (7-1-88 EditIon)
ing to the Freedom of Information Of.
ficer (A-101), Environmental Protec..
tion Agency, 401 M St. SW., Washing-
ton, DC 20460, the following informa-
tion: The name and address of the
business making the designation; the
name, address, and telephone number
of the designated person or office; and
a request that EPA inquiries and coin.
municatlons (oral and written) under
this subpart, 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 desig-
nee under this section, the following
EPA inquiries and notices to the bust.
ness shall be addressed to the desig-
nee:
(1) Inquiries concerning a business’s
desire to assert a business confidential.
ity 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) Inquires concerning comments,
under § 2.205(b)(4);
(4) Notices of dental 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 determinations,
under § 2.205(h);
(7) Notices to affected businesses
under II 2.301(g) and 2.301(h) and
analogous 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 Of-
ficer shall, as quickly as possible,
notify all EPA offices that may pos-
sess information submitted by the
business to EPA, the Regional Free-
dom 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 work-
ing days may be required for dissem.i-
nation of this Information within EPA
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and that some EPA offices may not re-
ceive notice of such designations.
(41 FR 36902. Sept. 1, 1976, as amended at
43 FR 40001, Sept. 8,1978]
§ 2.214 Defense of Freedom of Informa-
tion 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 fur-
nished by the affected business to sub-
stantiate its claim of confidentiality.
The EPA legal office may be unable to
verify the accuracy of much of the in-
formation submitted by the affected
business.
(b) If the EPA legal office makes a
final confidentiality determination
under this subpart that certain busi-
ness information Is entitled to confi-
dential treatment, and EPA is sued by
a requester under the Freedom of In-
formation Act for disclosure of that
information, EPA will:
(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 af-
fected business to furnish assistance;
and
(3) Not oppose a motion by any af-
fected business to intervene as a party
to the suit under rule 24(b) o the Fed-
eral Rules of Civil Procedure.
(c) EPA will defend its final confi-
dentiality determination, but EPA ex-
pect.s the affected business to cooper-
ate to the fullest extent possible in
this defense.
(43 FR 40001, Sept. 8, 1978]
§ 2.215 Co ifidentiality agreements.
(a) No EPA officer, employee, con-
tractor, 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 sub-
contractor shall promise any affected
business that business Information will
be kept confidential unless the prom-
ise 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 be-
cause the information is or may con-
stitute confidential business informa-
tion, the EPA office may enter into an
agreement with the agency to keep
the Information confidential, notwith-
standing the provisions of this sub-
part. However, no such agreement
shall be made unless the General
Counsel determines that the agree-
ment 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 informa-
tion directly from the affected busi-
ness, compelling submission of the in-
formation directly from the business
would—
(A) Require time in excess of that
available to the EPA office to perform
its necessary work with the informa-
tion,
(B) Duplicate Information already
collected by the other agency and
overly burden the affected business, or
(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 infor-
mation 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
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(6) That EPA will treat the Informa-
tion 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.
(43 FR 40001, Sept. 8, 19781
§ 2.216—2.300 [ Reserved)
§ 2.301 Special rules governing certain in-
formation 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 sowce of emission of
any substance Into the air—
(A) Information necessary to deter-
mine 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 re-
sulting from any emission by the
source ), or any combination of the
foregoing;
(B) Information necessary to deter-
mine the identity, amount, frequency,
concentration, or other characteristics
(to the extent related to air quality) of
the emissions which, under an applica-
ble standard or limitation, the source
was authorized to emit (including, to
the extent necessary for such pur-
poses, a description of the manner or
rate of operation of the source); and
(C) A general description of the loca-
tion 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 neces-
sary for such purposes, a description
of the device, installation, or operation
constituting the source).
(Ii) Notwithstanding paragraph
(a)(2)(l) 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 stand-
ard or limitation, or to allow EPA to
40 CFR Ch. 1(7-1-88 Edition)
demonstrate the feasibility, practIce.
bility, or attainability (or lack thereof)
of an existing or proposed standard or
limitation:
(A) Information’ concerning re.
search, or the results of research, oi
any project, method, device or instalja,
tion (or any component thereof)
which was produced, developed, lx i.
stalled, and used only for research
purposes; and
(B) Information concerning any
product, method, device, or Installa-
tion (or any component thereof) de-
signed and Intended to be marketed or
used commercially but not yet so mar-
keted or used.
(3) “Standard or limitation” meam
any emission standard or limitation es-
tablished or publicly proposed pursu-
ant to the Act or pursuant to any reg-
ulation under the Act.
(4) “Proceeding” means any rule-
making, adjudication, or licensing con-
ducted 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(1) of the Act, 42
U.S.C. 7550(1).
(b) Applicability. (1) This section ap-
plies to business information which
was—
(I) Provided or obtained under sec-
tion 114 of the Act, 42 U.S.C. 7414, by
the owner or operator of any station-
ary source, for the purpose (A) of de-
veloping or- assisting in the develop-
ment of any implementation plan
under section 110 or 111(d) of the Act,
42 U.S.C. 7410, 7411(d), any standard
of performance under section 111 of
the Act, 42 U.S.C. 7411, or any emis-
sion 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 pro-
vision of Part II of the Act with re-
spect to a manufacturer of new motor
vehicles or new motor vehicle engines);
(Ii) Provided or obtained under sec-
tion 208 of the Act, 42 U.S.C. 7542, for
the purpose of enabling the Adminis-
trator to determine whether a manu-
facturer has acted or is acting In com-
pliance with the Act and regulations
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under the Act, or provided or obtained
under section 206(c) of the Act, 42
U.S.C. 7525(c); or
jjj) Provided in response to a sub-
poena 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) In.formation will be considered to
have been provided or obtained under
section 114 of the Act if it was provid-
ed In response to a request by EPA
made for any of the purposes stated fri
section 114. or if its submission could
have 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 provid-
ed 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 in-
formation 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 pro-
vided In response to a request by EPA
made for any of the purposes stated in
section 206(c), or if its submission
Could have been required under sec-
tion 206(c) regardless of whether sec-
tion 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 pro-
vided 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 pro-
vided In response to a subpoena issued
Under section 307(a), or if its produc-
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tion could have been required by sub-
poena 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 Information 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. Sec-
tIon 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 infor-
mation to which this section applies is
voluntarily submitted information.
(f) Availability of information not
entitled to confidential treatment. Sec-
tion 2.2 10 does not apply to informa-
tion to which this section applies.
Emission data, standards or limita-
tions, and any other information pro-
vided under section 114 or 208 of the
Act which is determined under this
subpart not to be entitled to confiden-
tial treatment, shall be available to
the public notwithstanding any other
provision of this part. Emission data
and standards or limitations provided
In response to a subpoena issued under
section 307(a) of the Act shall be avail-
able to the public notwithstanding any
other provision of this part. Informa•
tion (other than emission data and
standards or limitations) provided in
response to a subpoena issued under
section 307(a) of the Act, which is de-
termined 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 confi-
dentiality and cannot or should not be
made available to the public.
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(g) Dt.sclosure of information rele-
vant to a proceeding. (1) Under see-
tion.s 114, 208 and 307 of the Act, any
Information to which this section ap-
plies 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 infor-
mation because of Its relevance to a
proceeding shall be made only in ac-
cordance with this paragraph (g).
(2) In connection with any proceed-
ing other than a proceeding involving
a decision by a presiding officer after
an evidentiary or adjudicatory hear-
ing, information to which this section
applies which may be entitled to confi-
dential treatment may be made avail-
able to the public under this para-
graph (g)(2). No information shall be
made available to the public under
this paragraph (g)(2) until any affect-
ed business has been Infonned that
EPA is considering making the infor-
mation 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 af-
forded 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 para-
graph (g)(2) only if, after consider-
ation of any timely comments submit-
ted by the business, the General Coun-
sel determines that the information is
relevant to the subject of the proceed-
ing 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 proceed-
ing involving a decision by a presiding
officer after an evidentiary or adjudi-
catory hearing, information to which
this section applies which may be enti-
tled to confidential treatment may be
made available to the public, or to one
or more parties of record to the pro-
ceeding, upon EPA’s initiative, under
this paragraph (g)(3), An EPA office
40 CFR Ch. I (7-1-88 Edition)
proposing disclosure of information
under this paragraph (g)(3), shall so
notify the presiding officer in writing,
Upon receipt of such a notification,
the presiding officer shall notify each
affected business that disclosure under
this paragraph (g)(3) has been pro-
posed, and shall afford each such busi-
ness a period for comment found by
the presiding officer to be reasonable
under the circumstances. Information
may be disclosed under this paragraph
(g)(3) only if, after consideration of
any timely comments submitted by
the business, the EPA office deter-
mines in writing that, for reasons di-
rectly associated with the conduct of
the proceeding, the contemplated dis-
closure would serve the public inter-
est, and the presiding officer deter-
mines in writing that the information
is relevant to a matter in controversy
in the proceeding. The presiding offi-
cer may condition disclosure of the in-
formation to a party of record on the
making of such protective arrange-
ments and commitments as he finds to
be warranted. Disclosure to one or
more parties of record, under protec-
tive arrangements or commitments,
shall not, of itself, affect the eligibility
of information for confidential treat-
ment 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 proceed-
ing involving a decision by a presiding
officer after an evidentiary or adjudi-
catory hearing, information to which
this section applies may be made avail-
able to one or more parties of record
to the proceeding, 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
af ford each such business a period f or
comment found by the presiding offi-
cer to be reasonable under the circum-
stances. Information may be disclosed
to a party of record under this para-
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graph (g)(4) only If, after consider-
ation of any timely comments submit-
ted by the business, the presiding off I .
cer determines In writing that (I) the
party of record has satisfactorily
shOwn that with respect to a signifi-
cant matter which is In controversy in
the proceeding, the party’s ability to
participate effectively in the proceed-
ing 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 of-
ficer may condition disclosure of the
information to a party of record on
the making of such protective arrange-
ments and commitments as he finds to
be warranted. Disclosure to one or
more parties of record, under protec-
tive arrangements or commitments,
shall not, of itself, affect tl e eligibility
of information to confidential treat-
ment under the other provisions of
this subpart. Any affected b,usiness
shall be given at least 5 days notice by
the presiding officer prior to making
the information available to one or
more of the parties of record to the
proceeding.
(h) Disclosure to authorized repre-
sentatives. (1) Under sections 114, 208
and 301(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 (3) of this
section.
(2)(l) 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 rep-
resentative of the United States for
Purposes of this paragraph (h). SUb-
ject to the limitations in this para-
graph (h)(2), information to which
this section applies may be disclosed
to such a person If the EPA program
office managing the contract or sub-
contract first determines in writing
that such disclosure Is necessary in
order that the contractor or subcon-
tractor may carry out the work re-
quired by the contract or subcontract.
(Ii) No information shall be disclosed
under this paragraph (h)(2), unless
this contract or subcontract in ques-
tion provides:
(A) That the contractor or subcon-
tractor and the contractor’s or subcon-
tractor’s employees shall use the infor-
mation only for the purpose of carry-
ing out the work required by the con-
tract, or subcontract, shall retrain
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 ex-
tracts therefrom) upon request by the
EPA program office, whenever the in-
formation 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 subcon-
tractor shall obtain a written agree-
ment to honor such terms of the con-
tract or subcontract from each of the
contractor’s or subcontractor’s em-
ployees who will have access to the in-
formation, before such employee is al-
lowed such access; and
(C) That the contractor or subcon-
tractor 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 enforcea-
ble by, both EPA and any affected
business having an interest in informa-
tion concerning It supplied to the con-
tractor or subcontractor by EPA under
the contract or subcontract.
(iii) No information shall be dis-
closed 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
thè.n 5 working days) to submit Its
comments. Such notice shall include a
description of the Information to be
disclosed, the Identity of the contrac-
tor or subcontractor, the contract or
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subcontract number, If any, and the
purposes to be served by the disclo-
sure.
(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 shah main-
tain the record of disclosure and the
determination of necessity prepared
under paragraph (h)(2)(i) of this sec-
tion for a period of not less than 36
months after the date of the disclo-
sure.
(3) A state or local governmental
agency which has duties or responsi-
bilities under the Act, or under regula-
tions which implement the Act, may
be considered an authorized represent-
ative of the United States for purposes
of this paragraph (h). Information to
which this section applies may be fur-
nished to such an agerfcy at the agen-
cy’s written request, but only if—
(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 in-
formed of those disclosures under this
paragraph (h)(3) which pertain to it,
and the agency has shown to the satis-
faction of an EPA legal office that the
agency’s use and disclosure of such in-
formation will be governed by state or
local law and procedures which will
provide adequate protection to the In-
terests of affected businesses.
(41 FR 36902. Sept. 1, 19’76, as amended at
43 FR 40002. Sept. 8, 1978: 43 FR 42251.
Sept. 20. 1978: 50 FR 51662. Dec. 18. 1985)
§ 2.302 Special rules governing certain in-
formation 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) laformation necessary to deter-
mine 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 deter-
mine 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 author-
ized 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 loca-
tion 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 neces-
sary 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 nec-
essary to allow EPA to disclose public-
ly that a source is (or is not) in compli-
ance with an applicable standard or
limitation, or to allow EPA to demon-
strate the feasibility, practicability, or
attainability (or lack thereof) of an ex-
isting or proposed standard or limita-
tion:
(A) Information concerning re-
search, or the results of research, on
any product, method, device, or instal-
lation (or any component thereof)
which was produced, developed, in-
stalled, and used only for research
purposes; and
(B) Information concerning any
product, method, device, or installa-
tion (or any component thereof) de-
signed and intended to be marketed or
used commercially but not yet so mar-
keted or used.
(3) “Standard or limitation” means
any prohibition, any effluent limita-
tion, or any toxic, pre-treatment or
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source performance standard es-
tablished or publicly proposed pursu-
ant to the Act or pursuant to regula-
tions under the Act, Including limita-
tions or prohibitions 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 rule-
making, adjudication, or licensing con-
ducted by EPA under the Act or under
regulations which implement the Act,
except for determinations under this
part.
(b) Applicability. (1) This section ap-
plies only to business information—
(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 develop-
ing or assisting in the develobment 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 provid-
ed 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. 1319(b),
and whether the information was pro-
vided 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 pro-
vided In response to a subpoena issued
under section 509(a), or if its produc-
tion could have been required by sub-
poena under section 509(a), regardless
of whether section 509(a) was cited as
the authority for any request for the
information, whether a subpoena was
issued by EPA. whether a court issued
§ 2.302
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 with-
out change to information to which
this section applies.
(d) (Reserved]
(e) Substantive criteria for use in
confidentiality determinations. Sec-
tion 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 infor-
mation to which this section applies is
voluntarily submitted information.
(f) Availability of information not
entitled to confidential treatment. Sec-
tion 2.210 does not apply to informa-
tion to which this section applies. Ef-
fluent data, standards or limitations,
and any other information provided or
obtained under section 308 of the Act
which is determined under this sub-
part not to be entitled to confidential
treatment, shall be available to the
public notwithstanding any other pro-
vision 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 avail-
able to the public notwithstanding any
other provision of this part. Informa-
tion (other than effluent data and
standards or limitations) provided In
response to a subpoena issued under
section 509(a) of the Act, which is de-
termined 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 conf i-
dentiality and cannot or should not be
made available to the public.
(g) Disclosure of information rele-
vant to a proceeding. (1) Under sec-
tions 308 and 509(a) of the Act, any in-
formation to which this section ap-
plies may be released by EPA because
of the relevance of the information to
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§2.303
a proceeding, notwithstanding the fact
that the Information otherwise might
be entitled to confidential treatment
under this subpart. Release of Infor-
mation to which this section applies
because of Its relevance to a proceed-
ing shall be made only In accordance
with this paragraph (g).
(2)-(4) The provisions of * 2.301(g)
(2), (3), and (4) are incorporated by
reference as paragraphs (g) (2), (3),
and (4), respectively of this section.
(h) Disclosure to authorized repre-
sentatives. (1) Under sections 308 and
509(a) of the Act, EPA possesses au-
thority 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)—(3) The provisions of § 2.301(h)
(2) and (3) are incorporated by refer-
ence as paragraphs (h) (2) and (3), re-
spectively, of this section.
[ 41 FR 36902, Sept. 1, 1976, as amended at
43 FR 40003, Sept. 8, 1978]
§ 2.303 Special rules governing certain in-
formation obtair.ed 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).
(3) ‘Product” has the meaning given
it in 42 U.S.C. 4902(3).
(4) “Proceeding” means any rule-
making, adjudication, or licensing con-
ducted by EPA under the Act or under
regulations which implement the Act,
except for determinations under this
subpart.
(b) Applicability. This section ap-
plies 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 sec-
tion 13 of the Act, if it was provided in
40 CFR Ch. 1(7-1-88 Editle )
response to a request by EPA made for
the purpose of enabling EPA to deter.
mine 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 In.
formation was issued under section
11(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. Sec-
tion 2.208 applies without change to
information to which this section ap-
plies; however, no Information to
which this section applies is voluntari-
ly submitted information.
(1) (Reserved]
(g) Disclosure of infonnation rele-
vant to a proceeding. (1) Under section
13 of the Act, any information to
which this section applies may be re-
leased by EPA because of its relevance
to a. matter in controversy in a pro-
ceeding, notwithstanding the fact that
the information otherwise might be
entitled to confidential treatment
under this subpart. Release of infor-
mation because of its relevance to a
proceeding shall be made only in ac-
cordance with this paragraph (g).
(2)—(4) The provisions of § 2.301(g)
(2). (3), and (4) are incorporated by
reference as paragraphs (g) (2), (3),
and (4), respectively, of this section.
(41 FR 36902. Sept. 1, 1976, as amended at
43 FR 40003. Sept. 8, 1978]
§ 2.304 Special rules governing certain in-
formation 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.
(2) “Contaminant” means any physi-
cal, chemical, biological, or radiologi-
cal substance or matter In water.
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(3) “Proceeding” means any rule-
n, klrig. adjudication, or licensing
process conducted by EPA under the
Act or under regulations which Imple-
ment the Act, except for any determi-
nation under this part.
(b) Applicability. (1) This section ap-
plies only to information—
(I) Which was provided to or ob-
tained by EPA pursuant to a require-
ment 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 fi-
nancial assistance under the Act; and
(ii) Which was provided by a
person—
(A) Who is a supplier of water, as de-
fined 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-1;
(C) Who is or may be subject to an
applicable underground injection con-
trol 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.
3 00j-4(e).
(2) This section applies to any infor-
mation which is described by para-
graph (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 sec-
tion 1445 of the Act, 42 U.S.C. 300j—4,
regardje 5 5 of whether such section was
Cited in any request for the ln.forma-
tion, or whether the Information was
Provided directly to EPA or through
8otne third person.
§ 1.304
(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 detenninations. Sec-
tion 2.208 applIes to information to
which this section applies, except that
information which deals with the ex-
istence, absence, or level of contami-
nants in drinking water is not eligible
for confidential treatment. No infor-
mation to which this section applies is
voluntarily submitted information.
(f) Nondisclosure for reasons other
than business confidentiality or where
disclosure is prohibited by other stat-
ute. Section 2.210 applies to informa-
tion 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 notwith-
standing any other provision of this
part.
(g) Disclosure of information rele-
vant to a proceeding. (1) Under section
1445(d) of the Act, any information to
which this section applies may be re-
leased by EPA because of the rel-
evance of the information to a pro-
ceeding, notwithstanding the fact that
the Information otherwise might ?e
entitled to confidential treatment
under this subpart. Release of infor-
mation to which this section applIes
because of Its relevance to a proceed-
ing shall be made only in accordance
with this paragraph (g).
(2)-(4) The provisions of § 2.301(g)
(2), (3), (4) are incorporated by refer-
ence as paragraphs (g) (2), (3), and (4),
respectively, of this section.
(h) Disclosure to authorized repre-
sentatives. (1) Under section 1445(d) of
the Act, EPA possesses authority to
disclose to any authorized representa-
tive of the United States any informa-
tion to which this section applies, not-
withstanding the fact that the infor-
mation otherwise might be entitled to
confidential treatment under this sub-
part. 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 (3) are incorporated by refer-
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40 CFR Ch. I (7-1-88 Edilion)
ence as paragraphs (h) (2) and (3), re-
spectively, of this section.
(41 FR 36902, Sept. 1, 1976, as amended at
43 FR 40003, Sept. 8. 1978]
§ 2.305 Special rules governing certain in-
formation obtained under the Solid
Waste Disposal Act, as amended.
(a) Definitions. For purposes of this
section:
(1) “Act” means the Solid Waste Dis-
posal 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).
(4) ‘ProceedLng” means any rule-
making. adjudication, or licensing con-
ducted by EPA under the Act or under
regulations which implement the Act
including the issuance of administra-
tive orders and the approval or disap-
proval of plans (e.g. closure plans) sub-
mitted by persons subject to regula-
tion under the Act, but not including
determinations under this subpart.
(b) Applicability. This section ap-
plies to information provided to or ob-
tained 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 sec
tions 3001(b)(3)(B), 3007, or 9005 of
the Act Lf it was provided in response
to a request from EDA made for any
of the purposes stated in the Act or if
its submission could have been re-
quired 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 provide
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. Sec-
tion 2.208 applies without change to
information to which this section ap-
plies; however, no information to
which this section applies is voluntari-
ly submitted information.
(f) (Reserved)
(g) Disclosure of information rele-
vant in a proceeding. (1) Under sec-
tions 3007(b) and 9005(b) of the Act
(42 U.S.C. 6927(b) and 6995(b)), any in-
formation to which this section ap-
plies may be disclosed by EPA because
of the relevance of the information in
a proceeding under the Act, notwith-
standing 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 rel-
evance In a proceeding shall be made
only in accordance with this para-
graph (g).
(2)-(4) The provisions of § 2.301(g)
(2), (3), and (4) are incorporated by
reference as paragraphs (g) (2). (3).
and (4), respectively, of this section.
(h) Disclosure to authorized repre-
sentatives. (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 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)—(3) The provisions of § 2.301(h)
(2) and (3) are incorporated by refer-
ence as paragraphs (h) (2) and (3), re-
spectively, of this section.
(4) At the time any information is
furnished to a contractor, subcontrac-
tor, 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 contrac-
tor, subcontractor, or state or local
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Environmental Protection Agency
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)).
(43 FR 40003. Sept. 8, 1978, as amended at
50 FR 51662. Dec. 18, 1985]
§ 2.306 Special rules governing certain in-
formation obtained under the Toxic
Substances Control Act.
(a) Definitions. For the purposes of
this section:
(1) “Act” means the Toxic Sub-
stances 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), (B). and (C)
of this section with respect to any
chemical substance or mixtui-e offered
for commercial distribution (including
for test marketing purposes and for
use in research and development), any
chemical substance included on the in-
ventory 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 oc-
cupational exposure to a chemical sub-
stance 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 other-
wise obtained by, EPA from a study
described in paragraph (a)(3)(l)(A) of
this section or a test described in para-
graph (a)(3)(i)(B) of this section.
(II) Notwithstanding paragraph
(a)3)(i) of tltis section, no information
shall be considered to be “health and
safety data” if disclosure of the infor-
rflatlon would-.-
(A) In the case of a chemical sub-
stance or mixture, disclose processes
§ 2.306
used in the manufacturing or process-
ing 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.
(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 rule-
making, adjudication, or licensing con-
ducted by EPA under the Act or under
regulations which implement the Act,
except for determinations under this
subpart.
(b) Applicability. This section ap-
plies 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 origi-
nally submitted to EPA for some other
purpose and either relied upon to
avoid some requirement or condition
of the Act or incorporated into a sub-
mission in order to satisfy some re-
quirement 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 ob-
tained 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. Sec-
tion 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 re-
flected in any notice furnished to a
business under § 2.204(d)(2).
(e) Final confidentiality determina-
tion by EPA legal office. SectIon 2.205
applies to information to which this
section applies, except that—
(1) Notwithstanding § 2.205(1). the
General Counsel (or his designee).
rather than the regional counsel, shall
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make the determinations and take the
actions required by 2.205;
(2) In addition to the statement pre-
scribed 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 dis-
closure.
(3) The following sentence is substi-
tuted 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 Informa-
tion available to the public on the
thirty-fIrst (3 1st) calendar day after
the date of the business’ receipt of the
wirtten 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’ com-
mencement of an action in a Federal
court to obtain judicial review of the
determination and to obtain prelimi-
nary injunctive relief against disclo-
sure.”; 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. Sec-
tion 2.208 applies without change to
information to which this section ap-
plies, except that health and safety
data are not eligible for confidential
treatment. No information to which
this section applies is voluntarily sub-
mitted information.
(h) Disclosure in special circum-
stanccs. Section 2.209 applies to infor-
mation to which this section applies.
except that the following two addi-
tional 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 infor-
mation 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 rele-
vant in a proceeding. (1) Under sec-
tion 14(a)(4) of the Act (15 U.S.C.
2613(a)(4)), any information to which
this section applies may be disclosed
by EPA when the information is rele-
vant in a proceeding under the Act,
notwithstanding the fact that the in-
formation otherwise might be entitled
to confidential treatment under this
subpart. However, any such disclosure
shall be made in a manner that pre-
serves the confidentiality of the In! or-
mation to the extent practicable with-
out impairing the proceeding. Disclo-
sure of information to which this sec-
tion applies because of its relevance In
a proceeding shall be made only in ac-
cordance with this paragraph (i).
(2)-(4) The provisions of § 2.301(g)
(2), (3), and (4) are incorporated by
reference as paragraphs (1) (2), (3),
and (4), respectively, of this section.
(j) Disclosure of information to con-
tractors and subcontractors. (1) Under
section 14(a)(2) of the Act (15 U.S.C.
2613(a)(2)), any information to which
this section applies may be disclosed
by EPA to a contractor or subcontrac-
tor of the United States performing
work under the Act, notwithstanding
the fact that the information other-
wise might be entitled to confidential
treatment under this subpart. Subject
to the limitations in this paragraph
(j), information to which this section
applier may be disclosed to a contrac-
tor or subcontractor if the EPA pro-
gram office managing the contract or
subcontract, or (in the case of contrac-
tors or subcontractors with agencies
other than EPA) the General Counsel,
determines in writing that such disclo-
sure is necessary for the satisfactory
performance by the contractor or sub-
contractor of the contract or subcon-
tract.
(2)-(4) The provisions of
§ 2.301(h)(2) (ii), (lii), and (iv) are in-
corporated by reference as paragraphs
(j) (2). (3), and (4), respectively, of this
section.
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§ 2.307
(5) At the time any information is
furnished to a contractor or subcon-
tractor under this paragraph (j), the
EPA office furnishing the information
to the contractor or subcontractor
shall notify the contractor or subcon-
tractor that the information was ac-
quired under authority of the Act and
that any knowing disclosure of the in.
formation 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 envi-
ronment against an unreasonable risk
of injury. (1) Under section 14(a)(3) of
the Act (15 U.S.C 2613(a)(3)), any in-
formation to which this section ap-
plies may be disclosed by EPA when
disclosure is necessary to protect
health or the environment against an
unreasonable risk of injury to health
or the environment. However, any dis-
closure shall be made in a manner
that preserves the confidentiality of
the information to the extent not in-
consistent with protecting health or
the environment against the unreason-
able risk ofinjury. Disclosure of Infor-
mation to which this section applies
because of the need to protect health
or the environment against an unrea-
sonable risk of injury shall be made
only in accordance with this para-
graph (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 envi-
ronment against the unreasonable risk
of injury it is necessary to disclose in-
formation to which this section ap-
plies 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 en-
vironment against the unreasonable
risk of injury, and the proposed date
of 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 writ-
ten notification to the General Coun-
sel, 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 de-
termination in writing whether disclo-
sure of information to which this sec-
tion applies that otherwise might be
entitled to confidential treatment is
necessary to protect health or the en-
vironment against an unreasonable
risk of injury. The General Counsel
shall also determine the extent of dis-
closure 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 deter-
mines that disclosure of information
to which this section applies that oth-
erwise might be entitled to confiden-
tial treatment is necessary to protect
health or the environment against an
unreasonable risk of injury, the Gen-
eral Counsel shall furnish notice to
each affected business of the contem-
plated disclosure and of the General
Counsel’s determination. Such notice
shall be made in writing by certified
mail, return receipt requested, at 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 de-
termines 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 Gen-
eral 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.
(43 FR 40003. Sept. 8. 1978, as amended at
44 FR 17674, Mar. 23, 1979)
§ 2.307 Special rules governing certain in-
formation obtained under the Federal
Insecticide, Fungicide and Rodenticide
Act
(a) Definitions. For the purposes of
this section;
(1) “Act” means the Federal Insecti-
cide, Fungicide and Rodenticide Act,
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§2 307
40 CFR Ch. I (7.1-88 Edition)
as amended, 7 U.S.C. 136 et seq., and
its predecessor, ‘1 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 registra-
tion statement or application for regis-
tration under the Act of a pesticide or
of an establishment.
(3) “Registrant” means any person
who has obtained registration under
the Act of a pesticide or of an estab-
lishment.
(b) Applicability. This section ap-
plies to all Information submitted to
EPA by an applicant or registrant for
the purpose of satisfying some re-
quirement or condition of the Act or
of regulations which implement the
Act, including information originally
submitted to EPA for some other pur-
pose but incorporated by the applicant
or registrant into a submission in
order to satisfy son 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. Sec-
tion 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 reflect-
ed in any notice furnished to a busi-
ness under § 2.204(d)(2).
(e) Final confidentiality determina-
tion by EPA legal office. Section 2.205
applies to information to which this
section applies, except that—
(1) Notwithstanding § 2.205(1), 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 pre-
scribed 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
judgment;
(3) The following sentence is substi-
tuted for the third sentence of
§ 2.205(f)(2): “With respect to EPA’ 8
Implementation of the determination,
the notice shall state that (subject to
§ 2.210) EPA will make the informa-
tion available to the public on the
thirty-first (3 1st) calendar day after
the date of 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 com-
mencement of an action in a Federal
court to obtain judicial review of the
determination or to obtain a declarato-
ry judgment under section 10(c) of the
Act and to obtain preliminary injunc-
tive relief against disclosure.”; and
(4) Notwithstanding § 2.205(g), the
31 calendar day period prescribcd 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. Sec-
tion 2.208 applies without change to
information to which this section ap-
plies; however, no information to
which this section applies is voluntari-
ly submitted information.
(h) Disclosure in special circum-
stances. (1) Section 2.209 applies with-
out 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 perU
Sons needing such information for the
performance of their duties, notwith-
standing the fact that the information
might otherwise be entitled to confi
dential treatment under this subpart-
Such authority under section
12(a)(2)(D) of the Act may be exer-
cised only in accordance with para
graph (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 other-
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Environmental Protection Agency
wise be entitled to confidential treat-
ment under this subpart) to physi-
cians, pharmacists, hospitals, veteri-
narians, law enforcement personnel, or
governmental agencies with responsi-
bilities for protection of public health,
and to employees of any such persons
or agencies, or to other qualified per-
sons, when and to the extent that dis-
closure is necessary in order to treat
illness or injury or to prevent immi-
nent harm to persons, property, or the
environment, in the opinion of the Ad-
ministrator 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 treat-
ment 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 pçogram office
managing the contract first deter-
mines in writing that such disclosure
is necessary in order that the contrac-
tor 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 re-
quirements 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.
(41 FR 36902, Sept. 1. 1976, as amended at
43 FR 40005, Sept. 8, 19781
§ 2.308 Special rules governing certain in-
formation 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 establish-
ing a tolerance for a pesticide cheini-
cal or exempting the pesticide chemi-
cal from the necessity of a tolerance,
Pursuant to section 408(d) of the Act,
21 U.S.C. 346a(d).
§ 2.308
(3) “Petitioner” means a person who
has submitted a petition to EPA (or to
a predecessor agency).
(b) Applicability. (1) This section ap-
plies only to business information sub-
mitted to EPA (or to an advisory com-
mittee established under the Act) by a
petitioner, solely in support of a peti-
tion 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 toler-
ance. 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 de-
scribed by the first sentence of
§ 2.307(b) (material incorporated into
submissions in order to satisfy the re-
quirements of the Federal Insecticide,
Fungicide and Rodenticide Act, as
amended), even though such informa-
tion was originally submitted by a pe-
titioner in support of a petition.
(3) This section does not apply to in-
formation gathered by EPA under a
proceeding initiated by EPA to estab-
lish a tolerance under section 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.
(d) Effect of submission of informa-
tion without claim. Section 2.203 (a)
and (b) apply without change to infor-
mation to which this section applies.
Section 2.203(c), however, does not
apply to information to which this sec-
tion applIes. A petitioner’s failure to
assert a claim when initially submit-
ting a petition shall not constitute a
waiver of any claim the petitioner may
have.
(e) Initial action by EPA office. Sec-
tion 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
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§ 2.308
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 pro-
visions of any notice furnished to a pe-
titioner under § 2.204(e), such notice
shall state that—
( I) Section 408(f) of the Act, 21
U.S.C. 346a(f), affords absolute confi-
dentiality 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 toler-
ance) neither the Act nor this section
affords any protection to the informa-
tion;
(ii) Information submitted in sup-
port of a petition which is also incor-
porated 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 regafded by EPA as
being governed, with respect to busi-
ness confidentiality, 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 confi-
dential treatment or will be entitled to
such treatment if and when this sec-
tion no longer applies to the informa-
tion; 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 (sub-
ject to § 2.2 10) unless the business fur-
nishes timely comments in response to
the notice.
(f) Final confidentiality determina-
tion 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 determina-
tions 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 § 2205(f)(2)
shall be furnished to each affected
business whenever information is
40 CFR Ch. I (7-1-88 Edition)
found to be entitled to confidentlaj
treatment under section 408(f) of the
Act but not otherwise entitled to con.
fidential treatment. With respect to
such cases, the following sentences
shall be substituted for the third sen.
tence of § 2.205(f)(2): “With respect to
EPA’s implementation of the determi.
nation, the notice shall state that
(subject to § 2.2 10) EPA will make. the
information available to the public on
the thirty-first (3 1st) calendar day
after the business’s receipt of the writ-
ten notice (or on such later date as is
established in lieu thereof under para.
graph (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 ju-
dicial 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 enti-
tled 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. Sec-
tion 2.208 does not apply to informa-
tion to which this section applies.
Such information shall be determined
to be entitled to confidential treat-
ment for so long as this section contin-
ues to apply to it.
(j) Disclosure in special circum-
stances. (1) Section 2.209 applies to in-
formation to which this section ap-
plies. 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 sec-
tion.
(2) Information to which this section
applies may be disclosed (notwith-
standing the fact that it otherwise
might be entitled to confidential treatS
ment under this subpart) to a person
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Environmental Protection Agency
under contract to EPA to perform
work for EPA in connection with the
Act, with the Federal Insecticide, Fun-
gicide. and Rodenticide Act, as amend-
ed, or regulations which implement
either such Act, if the EPA program
office managing the contract first de-
termines in writing that such disclo-
sure is necessary in order that the con-
tractor may carry out the work re-
quired by the contract. Any such dis-
closure to a contractor shall be made
only in accordance with the proce-
dures 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).
(41 FR 36902, Sept. 1. 1976. as amended at
43 FR 40005, Sept. 8, 1978) ,
§ 2.309 Special rules governing certain in-
formation obtained under the Ma ine
Protection, Research and Sanctuaries
Act of 1972.
(a) Definitions. For the purposes of
this section:
(1) “Act” means the Marine Protec-
tion, Research and Sanctuaries Act of
1972, 33 U.S.C. 1401 et seq.
(2) “Permit” means any permit ap-
plied for or granted under the Act.
(3) “Application” means an applica-
tion for a permit.
(b) Applicability. This section ap-
plies to all information provided to or
obtained by EPA as a part of any ap-
plication 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) Substantive criteria for use in
Confidentiality deter,ninat ions, Sec-
tion 2.208 does not apply to informa-
tion to which this section applies. Pur-
SUant 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.
(41 FR 36902, Sept. 1, 1976, as amended at
43 FR 40005, Sept. 8. 1978]
§ 2.310
§ 2.310 Special rules governing certain in.
formation obtained ,inder the Compre-
hensive Environmental Response, Com-
pensation, and Liability Act of 1980.
(a) Definitions. For purposes of this
section:
(1) “Act” means the Comprehensive
Environmental Response, Compensa-
tion, 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 rule-
making or adjudication conducted by
EPA under the Act or under regula-
tions which implement the Act (in-
cluding 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 ap-
plies 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 dis-
poses of hazardous wastes; or where
necessary to ascertain facts not avail-
able at the facility, where such hazard-
ous substances are located, by or from
any person who generates, transports,
or othewlse handles or has handled
hazardous substances. Information
will be considered to have been provid-
ed or obtained under section 104 of
the Act if it was provided In response
to a request from EPA or a representa-
tive of EPA made for any of the pur-
poses stated In section 104, or if its
submission could have been required
under section 104, regardless of wheth-
er 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.
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§ 2.311
( ) Basic rules which apply without
change. SectIons 2.20 1 through 2.207
and § 2.209 through 2.215 apply with-
out change to information to which
this section applies.
(d) (Reserved]
(e) Substantive cntena for use In
confidentiality deter,ninations, Sec-
tion 2.208 applies without change to
Information to which this section ap-
plies; however, no Information to
which this section applies is voluntari-
ly 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 ap-
plies may be disclosed by EPA because
of the relevance of the information in
a proceeding under the Act, nothwith-
standing 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 rel-
evance in a proceeding shall be made
only in accordance with this para-
graph (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 authonzed repre-
sentatives. (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, notwith-
standing the fact that the information
might otherwise be entitled to confi-
dential 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.
(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, subcontrac-
tor, or state or local government
40 CFR Ch. I (7-1-88 Edition)
agency under this paragraph (h), the
EPA office furnishing the information
to the contractor, subcontractor, or
state or local government agency shajj
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 contrac.
tor, 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)).
(50 FR 51663, Dec. 18, 1985]
§ 2.311 Special rules governing certain in-
formation 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 aver-
age 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 ap-
plies 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 con-
sidered to have been provided or ob-
tained under Title V, Part A of the Act
if it was provided in response to a re-
quest from EPA made for any purpose
stated in Title V, Part A, or if its sub-
mission 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 in-
formation or whether the information
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Environmental Protection Agency
was provided directly to EPA or
through some third person.
(C) Basic rules which apply ‘oithout
change. Sections 2.201 through 2.207
and § 2.209 through 2.215 apply with.
out change to information to which
this section applies.
(d) (Reserved)
(e) Substantive criteria for use in
confidentiality determinations. Sec-
tion 2.208 applies without change to
information to which this section ap-
plies. except that information this is
fuel economy data is not eligible for
confidential treatment. No informa-
tion to which this section applies is
voluntarily submitted information.
(f) [ Reserved]
(g) Disclosure of inforTnation rele-
vant 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 rel-
evance of the information to a pro-
ceeding under Title V. art A of the
Act, notwithstanding the fact that the
information otherwise might be enti-
tled 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 o ‘ 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.
(50 F’R 51663, Dec. 18, 1985]
Subpart C—Testimony by Employees
and Production of Documents in
Civil Legal Proceedings Where
the United States Is Not a Party
AO ’fl oRzry: 5 U.S.C. 301: Reorganization
Plan No. 3 of 1970. 5 U.S.C. App.: 33 u.s.c.
36 1(a): 42 U.S.C. 3001-9: 42 U.S.C. 6911a, 42
U.S.C. 76C1(a).
SOURcE: 50 FR 32387, Aug. 9, 1985, unless
otherw e noted.
§ 2.401 Scope and purpose.
This subpart sets forth procedures
to be followed when an EPA employee
§ 2.402
is requested or subpoenaed to provide
testimony concerning information ac-
quired in the course of performing of-
ficial duties or because of the employ-
ee’s official status. (In such cases, em-
ployees 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 (includ-
ing grand jury proceedings);
(2) Federal civil proceedings, except
where the United States, EPA or an-
other Federal agency is a party; and
(3) State and local legislative and ad-
ministrative proceedings.
(b) These procedures do not apply:
(1) To matters which are not related
to EPA;
(2’ To Congressional requests or sub-
poenas 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, em-
ployees must state for the record that
the testimony represents their own
views and does not necessarily repre-
sent the official position of EPA);
(4) Where employees voluntarfly tes-
tify 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 in-
terests of EPA.
§ 2.402 Policy on presentation of testimo-
ny and production of documents.
(a) With the approval of the cogni-
zant Assistant Administrator, Office
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§ 2.403
Director. Staff Office Director or Re-
gional Administrator or his designee,
EPA employees (as defined In 40 CFR
3.102 (a) and (b)) may testify at the re-
quest of another Federal agency, or.
where It Is in the interests of EPA. at
the request of a State or local govern-
ment or State legislative committee.
(b) Except as permitted by para-
graph (a) of this section. no EPA em-
ployee may provide testimony or
produce documents in any proceeding
to which this subpart applies concern-
ing information acquired in the course
of performing official duties or be-
cause of the employee’s official rela-
tionship with EPA, unless authorized
by the General Counsel or his desig-
nee under § 2.403 through 2.406.
§ 2.403 Procedures when voluntary testi-
mony is requested.
A request for testimony by an EPA
employee under § 2.402(b) must be In
writing and must stats the nature of
the requested testimony and the rea-
sons why the testimony would be In
the Interests of EPA. Such requests
are immediately sent to the General
Counsel or his designee (or. In the case
of employees In the Office of Inspec-
tor General, the Inspector General or
his designee) with the recommenda-
tions of the employee’s supervisors.
The General Counsel or his designee.
in consultation with the appropriate
Assistant Administrator, Regional Ad-
ministrator, or Staff Office Director
(or, in the case of employees in the
Office of Inspector General, the In-
spector General or his designee), de-
termines whether compliance with the
request would clearly be in the inter-
ests of EPA and responds as soon as
practicable.
§ 2.404 Procedures when an employee is
suhpoenaed.
(a) Copies of subpoenas must imme-
diately be sent to the General Counsel
or his designee with the recommenda-
tions of the employee’s supervisors.
The General Counsel or his designee,
in consultation with the appropriate
Assistant Administrator, Regional Ad-
ministrator or Staff Office Director,
determines whether compliance with
the subpoena would clearly be in the
40 CFR Ch. I (7-1-88 Edition)
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 sub-
poena was not validly Issued or served
or that the subpoena has been with-
drawn), produce a copy of these regu-
lations and respectfully refuse to pro.
vide any testimony or produce any
documents. United States ex reL Touhy
v. Ragen, 340 U.S. 462 (1951).
(c) Where employees in the Office of
Inspector General are subpoenaed, the
Inspector General or his designee
malies the determination under para-
graphs (a) and (b) of this section in
consultation with the General Coun-
sel.
(d) The General Counsel will request
the assistance of the Department of
Justice or a U.S. Attorney where nec-
essary to represent the interests of the
Agency and the employee.
§ 2.405 Subpoenas duces tecum.
Subpoenas duces tecum. Lor docu-
ments or other materials are treated
the same as subpoenas for testimony.
Unless the General Counsel or his des-
ignee, in consultation with the appro-
priate Assistant Administrator, Re-
gional Administrator or Staff Office
Director (or, as to employees in the
Office of Inspector General, the In-
spector General) determines that com-
pliance 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 sub-
poena was not validly issued or served
or that the subpoena has been with-
drawn) and respectfully refuse to
produce the subpoenaed materials.
However, where a subpoena duces
tecum is essentially a written request
for documents, the requested docu-
ments will be provided or denied in ac-
cordance with Subparts A and B of
this part where approval to respond to
the subpoena has not been granted.
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FREEDOM OF INFORAMTION ACT MANUAL 1550
05/04/92
Environmental Protctlen Agency
§ 2.406 Requests for authenticated copies
of EPA documents.
Requests for authenticated copies of
EPA documents for purposes of admis-
sibifity under 28 U.S.C. 1733 and Rule
44 of the Federal Rules of Civil Proce-
dure 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 cognt .nnt
Assistant Administrator, Regional Ad.
mli4strator, Staff Office Director or
Office Director or his designee. The
advice of the Office of General Coun-
sel should be obtained concerning the
proper form of authentication.
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