[Federal Register Volume 84, Number 123 (Wednesday, June 26, 2019)]
[Rules and Regulations]
[Pages 30028-30038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13290]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 2

[FRL-9995-48-OGC]
RIN 2015-AA02


Freedom of Information Act Regulations Update

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) takes final action 
to revise the Agency's regulations under the Freedom of Information Act 
(FOIA or Act). This action supports the Agency's mission by updating 
the process by which the public may access information about EPA 
actions and activities. These revisions include changes required by 
amendments to the Act in 2007, 2009, and 2016, updates to correct 
obsolete information, and changes to reflect internal EPA realignment.

DATES: This final rule is effective on July 26, 2019.

FOR FURTHER INFORMATION CONTACT: Christopher T. Creech, Office of 
General Counsel, U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, (2310A), Washington, DC 20460; telephone, 202-
564-4286; email, creech.christopher@epa.gov.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. Scope of This Action
II. Why is EPA Using the Good Cause and Procedural Exceptions?
    A. Procedural Exception
    B. Good Cause Exception
III. Background
    A. Background on EPA's FOIA Regulations and FOIA Processes
    B. Why EPA is Proposing Changes to its FOIA Regulations
IV. Revisions Related to the Amendments to the FOIA
    A. Revisions Related to the 2007 Amendments
    1. Incorporating the Definition of ``Representative of the News 
Media''
    2. Methods of Submitting FOIA Requests
    3. Tolling of the Time-Period To Respond to Requests
    4. FOIA Public Liaison
    B. Revision Related to the 2009 Amendments to FOIA--Elimination 
of List of FOIA Exemptions
    C. Revisions Related to the 2016 Amendments to FOIA
    1. When the Agency May Charge Search Fees
    2. Content of Response Letters
    3. Agency- or Government-Wide Submission Tool
    4. Extension of Minimum Time To File Administrative Appeal
V. Clarifications to EPA's FOIA Process
    A. Authority To Respond to Requests
    B. Administrative Appeals
VI. Other Changes
    A. Timing of Received Date
    B. References to the National FOIA Office
    C. Clear Writing Changes
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act

I. Scope of This Action

    This action makes changes to the Agency's FOIA regulations at 40 
CFR part 2, to implement statutory updates, correct obsolete 
information, and reflect internal EPA realignment and processing 
changes to improve the Agency's FOIA response process. These changes 
affect the process by which any individuals and entities request 
records from EPA under the Act. The EPA makes changes to bring EPA's 
FOIA regulations into compliance with the FOIA, as amended by the OPEN 
Government Act of 2007, Public Law 110-175, 121 Stat. 2524 (2007 
Amendments), the OPEN FOIA Act of 2009, Public Law 111-83, 123 Stat. 
2142 (2009 Amendments), and the FOIA Improvement Act of 2016, Public 
Law 114-185, 130 Stat. 538 (2016 Amendments).
    Although EPA also makes these revisions as a single action, EPA 
intends that the revisions detailed below would be severable from each 
other on judicial review. At this time, the EPA makes these changes to 
its regulations to comply with the 2007, 2009, and 2016 Amendments, and 
to remove and correct provisions that are superseded by the statutory 
amendments.
    The EPA has reserved for a later, second rulemaking phase certain

[[Page 30029]]

discretionary and modernizing changes that the EPA is considering and 
on which the EPA will consider taking public comment. The changes in 
today's rule bring EPA's regulations into compliance with 
nondiscretionary provisions of the amended statute and reflect changes 
in the Agency's organization, procedure, or practice.

II. Why is EPA using the good cause and procedural exceptions?

A. Procedural Exception

    The Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A), provides 
that an agency may issue interpretive rules, general statements of 
policy, or rules of agency organization, procedure, or practice without 
providing notice and an opportunity for public comment. Certain 
revisions in this action update the EPA's rules to accurately reflect 
the Agency's organizational structure and implement statutorily 
directed changes, which are self-executing. Importantly, these 
revisions do not change the substantive standards the Agency applies in 
implementing the FOIA to the extent they conform with the Act and the 
2007. 2009, and 2016 Amendments. As such, these revisions will not 
significantly affect the substantive rights of regulated entities or 
the general public.
    EPA has determined that the following changes announced in the 
preamble in this rule are exempt from notice and comment under the 
procedural exception: Modifying the methods of submitting a FOIA 
request (Section IV.A.2); reflecting the statutory language for the 
tolling of the time-period for responding to requests (Section IV.A.3); 
reflecting the statutory requirements to make the Agency's FOIA Public 
Liaison available (Section IV.A.4); updating the Agency's standard 
requirements for response letters (Section IV.C.2); acknowledging the 
possibility of an agency- or government-wide electronic submission tool 
(Section IV.C.3); extending the minimum time to file an administrative 
appeal (Section IV.C.4); clarifying the positions that have authority 
to respond to FOIA requests (Section V.A); modifying methods for 
submitting an administrative appeal and clarifying positions that have 
authority to respond to administrative appeals (Section V.B); 
clarifying that requests, appeals, and other communications from 
requesters, must be submitted before 5:00 p.m. Eastern Time for the 
Agency to consider the communication as received on that business day 
(Section VI.A); and replacing references to ``Agency FOI Office'' with 
references to the National FOIA Office (Section V.B).

B. Good Cause Exception

    The Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides 
that, when an agency for good cause finds that public notice and 
comment procedures are impracticable, unnecessary, or contrary to the 
public interest, the agency may issue a rule without providing notice 
and an opportunity for public comment. The EPA has determined that 
there is good cause to revise portions of its FOIA regulations without 
prior proposal and opportunity for comment. Notice and opportunity for 
comment on the revisions identified below is unnecessary because the 
agency lacks discretion to reach a different outcome in response to 
comment.
    It is routine for agencies to update their FOIA regulations to 
reflect self-executing statutory provisions. The 2016 Amendments 
provide that ``each agency . . . shall review the regulations of such 
agency and shall issue regulations in accordance with the [2016 
Amendments].'' Under section 3 of the FOIA Improvement Act (130 Stat. 
544) . The significance and consequence of the recent FOIA amendments 
derive from the amendments themselves. Whereas Congress required the 
Agency to follow the statutory provisions of the FOIA, these regulatory 
revisions are insignificant in impact and inconsequential to the 
public.
    This rule revises or strikes provisions in the EPA's prior 
regulations that are repetitive of the FOIA: Replacing the outdated 
definition of ``news media'' with a cross-reference to the FOIA 
(Section IV.A.1 in this preamble); and striking the obsolete list of 
FOIA exemptions as incorrect and duplicative of the FOIA (Section IV.B 
in this preamble). This rule also corrects certain provisions in the 
EPA's prior regulations to conform to the amended statutory text: 
Reflecting the statutory requirements to make the Agency's FOIA Public 
Liaison available (Section IV.A.4 in this preamble); incorporating the 
text of the 2016 Amendments, which changed when an agency may charge 
search fees (Section IV.C.1 in this preamble); and incorporating the 
statutorily required information that the agency must include in FOIA 
determinations (Section IV.C.2 in this preamble). These provisions now 
accurately reflect the statutory language of the FOIA, and the EPA is 
exercising no discretion in revising these sections. Further, any 
portions of this rule that have slightly different phrasing than the 
FOIA have no independent effect.
    Additionally, EPA has made minor and purely ministerial changes: 
Replacing references to ``Agency FOI Office'' with references to the 
National FOIA Office (Section V.B in this preamble); and making certain 
non-substantive style and grammatical corrections to the regulations 
(Section VI.C in this preamble).

III. Background

A. Background on EPA's FOIA Regulations and FOIA Processes

    EPA's FOIA regulations at 40 CFR part 2 set forth the process and 
administrative rules by which EPA handles FOIA requests. These 
regulations address such topics as: Where and how to make a FOIA 
request to the Agency; who within the Agency is responsible for 
responding to FOIA requests; how and when the Agency will respond to 
requests; how to appeal final FOIA determinations and how the Agency 
handles appeals; and how FOIA fees are charged and processed. The 
Agency has not substantively updated these regulations since 2002. See 
67 FR 67303 (November 5, 2002).

B. Why EPA Is Proposing Changes to Its FOIA Regulations

    EPA revises its FOIA regulations to ensure compliance with 
amendments to the FOIA. Since the last time the EPA substantially 
revised these regulations in 2002, Congress has enacted three laws 
amending the FOIA. Congress passed the 2007 Amendments, which addressed 
several procedural issues that concern FOIA administration. Congress 
passed the 2009 Amendments, which revised the requirements of FOIA 
Exemption 3 regarding records exempt from disclosure by other statutes. 
Congress passed the 2016 amendments, which addressed a range of 
procedural and substantive issues and directed all agencies to amend 
their FOIA regulations to incorporate these required changes.
    EPA is also updating its FOIA regulations to correct obsolete 
information and reflect internal EPA realignment and processing changes 
to improve the Agency's FOIA response process.

IV. Revisions Related to the Amendments to the FOIA

    This action revises the Agency's FOIA regulations to incorporate 
certain required changes brought about by the 2007 Amendments, the 2009 
Amendments, and the 2016 Amendments.

[[Page 30030]]

A. Revisions Related to the 2007 Amendments

1. Incorporating the Definition of ``Representative of the News Media''
    EPA incorporates by reference the statutory definition provide by 
the 2007 Amendments of ``representative of the news media.'' Section 3 
of the 2007 Amendments amends 5 U.S.C. 552(a)(4)(A)(ii) by providing a 
definition of ``a representative of the news media'' directly in the 
statute. The amended statutory provision defines the term ``news,'' 
gives examples of news-media entities such as ``television or radio 
stations broadcasting to the public at large,'' and includes provision 
for a ``freelance journalist.'' Further, the amended statutory 
provision recognizes the evolution of ``methods of news delivery'' 
through, for example, ``electronic dissemination,'' and notes that 
news-media entities might make their products available by ``free 
distribution to the general public.''
2. Methods of Submitting FOIA Requests
    EPA also revises the location to which requesters may submit a FOIA 
request. By this action, EPA makes the National FOIA Office (NFO) in 
the Office of General Counsel (OGC) the point of entry for all 
requests. EPA clarifies that requesters may submit FOIA requests to the 
NFO only by the following four methods: 1) EPA's FOIA submission 
website at https://www.foiaonline.gov; 2) an electronic government 
submission website established pursuant to 5 U.S.C. 552(m); (3) U.S. 
Mail sent to the following address: National FOIA Office, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue NW (2310A), 
Washington, DC 20460; or (4) overnight delivery service to National 
FOIA Office, U.S. Environmental Protection Agency, 1200 Pennsylvania 
NW, Room 5315, Washington, DC 20460. EPA removes certain existing 
provisions in 40 CFR 2.102(a) and (b) regarding the routing of requests 
to conform with the approach for the submission of requests. A request 
triggers the statutory time-periods for response and the tolling 
provisions of the Act only when the NFO receives a FOIA request through 
one of the methods outlined above. The 2007 Amendments also decreased 
the amount of time an agency may take to route a request to the 
appropriate component of the agency to ten working-days or less. 5 
U.S.C. 552(a)(6)(A)(ii). The Agency makes these revisions above to 
address this change and to minimize the number of misdirected requests 
sent to the Agency.
    Under EPA's former regulations, requesters may have submitted FOIA 
requests to EPA Headquarters as well as to each of EPA's ten Regional 
Offices through various means. EPA will no longer accept FOIA requests 
sent (1) to any office by facsimile; (2) to any office by email; or (3) 
to Regional FOIA Offices by U.S. Mail or other non-electronic means. If 
a requester erroneously submits a FOIA request to an EPA program or 
regional office, the EPA will not consider the request received by the 
Agency. Consistent with the 2007 Amendments, the EPA will no longer 
consider these methods and offices ``components of the agency'' that 
are ``designated in the agency's regulations . . . to receive 
requests.'' 5 U.S.C. 552(a)(6)(A)(ii). Requests submitted by one of 
these three methods will not trigger the statutory time-periods for 
response or the tolling provisions of the Act. The requester therefore 
needs to submit a new request to the NFO by one of the four acceptable 
methods identified in the previous paragraph. Only when a requester 
properly submits a request by one of the four acceptable methods will 
EPA's timelines to respond begin to run.
3. Tolling of the Time-Period To Respond to Requests
    EPA revises the regulations regarding when the Agency may toll its 
time-period for responding to requests. The FOIA provides that agencies 
have 20 working days to respond to requests (unless ``unusual 
circumstances'' exist). Consistent with the 2007 Amendments to 5 U.S.C. 
552(a)(6)(A)(ii), the Agency may toll the response time once during the 
first 20 working days to obtain necessary clarification from a 
requester and as many times as necessary to address issues related to 
fees.
4. FOIA Public Liaison
    The 2007 Amendments to FOIA require agencies to make the FOIA 
Public Liaison available to requesters to resolve disputes. Therefore, 
this action includes information about the existence and role of EPA's 
FOIA Public Liaison, who is available to work with requesters and 
Agency staff concerning issues related to the Agency's response to FOIA 
requests.

B. Revision Related to the 2009 Amendments to FOIA--Elimination of List 
of FOIA Exemptions

    EPA repeals the list of the FOIA exemptions in its regulations at 
40 CFR 2.105. Providing this list of exemptions by regulation is 
unnecessary and redundant of the statute. EPA will continue to apply 
the exemptions found in accordance with 5 U.S.C. 552(b) as appropriate. 
In 2009, Congress amended the FOIA to revise the requirements of FOIA 
Exemption 3, 5 U.S.C. 552(b)(3), regarding records exempted from 
disclosure by other statutes. If the EPA were to retain the list of 
statutory exemptions in its regulations, the EPA would be required to 
update the list to reflect the changes to Exemption 3. Further, EPA's 
removal of the list of exemptions from its regulations reduces the need 
for conforming amendments to EPA's regulations if Congress enacts 
future changes to the FOIA exemptions and reduces confusion regarding 
EPA's FOIA process, as it will eliminate any potential for 
inconsistency between EPA's regulations and the statute. By undertaking 
this change, no further changes to EPA's regulations would be required 
by the 2009 Amendments.

C. Revisions Related to the 2016 Amendments to FOIA

1. When the Agency May Charge Search Fees
    EPA does not charge search fees (or duplication fees for 
educational or noncommercial scientific institutions, or 
representatives of the news media) if the Agency fails to meet FOIA's 
period to respond to a FOIA request except where the following criteria 
are met: (1) ``unusual circumstances'' (as defined in FOIA) exist; (2) 
timely written notice is provided to the requester; (3) more than 5,000 
pages are necessary to respond to the request; and (4) Agency staff 
have made at least three good faith attempts to discuss limiting the 
scope of the request with the requester as provided for in section 
552(a)(6)(B)(ii), which includes notice of the availability of the FOIA 
Public Liaison and the right to seek dispute resolution services from 
the Office of Government Information Services (OGIS) at the National 
Archives and Records Administration (NARA).
    The 2016 Amendments limited agencies' ability to charge for search 
or duplication fees for certain requests. Specifically, the 2016 
Amendments limited agencies from assessing search fees (or duplication 
fees for educational or noncommercial scientific institutions, or 
representatives of the news media) if an agency's response time is 
delayed beyond statutory time-periods. 5 U.S.C. 552(a)(4)(viii). In 
general, the time-period for determining whether to comply with a FOIA 
request is 20 working days. When agencies determine that ``unusual'' 
circumstances apply to the processing of a request, and they have 
provided timely written notice to the requester, a delay may be excused 
for an additional 10 working

[[Page 30031]]

days. However, if the agency fails to comply with the extended time 
limit, it may not charge search fees (or duplication fees for 
educational or noncommercial scientific institutions, or 
representatives of the news media). The law contains an exception: if 
unusual circumstances apply (as defined by 5 U.S.C. 552(a)(6)(B)(iii)) 
and more than 5,000 pages are necessary to respond to the request, 
agencies may charge search fees (or duplication fees for educational or 
noncommercial scientific institutions, or representatives of the news 
media) if timely written notice has been made to the requester and 
``the agency has discussed with the requester by written mail, 
electronic mail, or telephone (or made not less than 3 good-faith 
attempts to do so) how the requester could effectively limit the scope 
of the request [under 5 U.S.C. 552(a)(6)(B)(ii)] .'' Id. Sec.  
552(a)(A)(4)(viii)(II)(bb).
2. Content of Response Letters
    EPA now requires that final determinations include information 
about the right to seek assistance from the FOIA Public Liaison, and in 
the case of an adverse determination, of the existence and role of OGIS 
in providing dispute resolution services in FOIA-related matters. EPA 
also requires that the office which is processing the FOIA requests to 
include information about the existence and role of the OGIS when any 
request for an extension exceeds the 10-day period, as required by the 
2016 Amendments. The 2016 Amendments established new requirements for 
providing notification of assistance from public liaisons. When 
agencies make determinations on requests they now must offer the 
services of their FOIA Public Liaison and must notify requesters of the 
dispute resolution services provided by OGIS. Agencies must also allow 
requesters a period of at least 90 days within which to file an 
administrative appeal. Specifically, agencies must notify requesters of 
``the right of such person to seek assistance from the FOIA Public 
Liaison of the agency,'' and, in the case of an adverse determination, 
the right to appeal within a period of time ``that is not less than 90 
days after the date of such adverse determination'' and ``the right of 
such person to seek dispute resolution services from the FOIA Public 
Liaison of the agency or the Office of Government Information 
Services.''
3. Agency- or Government-Wide Submission Tool
    EPA amends the regulations to permit electronic submission of FOIA 
requests to the Agency through an agency- or government-wide electronic 
submission tool that may be approved in the future pursuant to 5 U.S.C. 
552(m), such as FOIA.gov, in addition to permitting electronic 
submission through the Agency's current electronic submission tool, 
FOIAonline.
4. Extension of Minimum Time To File Administrative Appeal
    EPA extends the time in which a requester is required to file an 
administrative appeal from 30 calendar days to 90 calendar days, which 
reflects changes made by the 2016 Amendments.

V. Clarifications to EPA's FOIA Process

    The Agency is taking this opportunity to make additional changes to 
its regulations to improve the FOIA process.

A. Authority To Respond to Requests

    EPA clarifies that the Administrator and Deputy Administrator and 
all assistant administrator-level positions and regional administrator 
positions in the Agency, or their deputies, and certain other office 
heads have the authority to respond to FOIA requests. This change 
eliminates a potential conflict in the existing regulations and ensures 
consistency of responses across the Agency. The previous regulations 
contained a potential inconsistency. EPA simplifies and consolidates 
section 2.103(b), which empowered the ``head of an office, or that 
individual's designee'' to grant or deny requests, and section 
2.104(h), which empowered division directors or equivalents authority 
to issue ``denials.''
    In addition, the Agency clarifies the authorities, and delegation 
of the authority, because the term ``division director'' is not easily 
interpreted across the Agency. The Agency does not intend to affect the 
Agency's use of delegation directives to set forth specific rules and 
limitations regarding who may be delegated FOIA decision making 
authority; it is not necessary to set forth such delegations, and 
limitations, in Agency regulations.

B. Administrative Appeals

    EPA revises the provisions of its regulations relating to 
administrative appeals to further streamline the appeals process. Like 
the changes regarding the receipt of FOIA requests, EPA accepts 
administrative appeals through centralized means to ensure timely 
receipt by the Agency of the appeal. EPA accepts appeals only by 1) 
electronic means through the Agency's FOIA management system, or 2) by 
U.S. Mail to the NFO.
    Final determinations made by the General Counsel or the General 
Counsel's delegates will be heard by an authorized decisionmaker within 
OGC who did not make the final determination. This change ensures the 
most efficient receipt and processing of FOIA appeals by the Agency.

VI. Other Changes

    In addition to revisions related to the amendments to the FOIA, EPA 
is making both changes to procedural provisions to improve the way the 
Agency responds to FOIA requests and non-substantive edits for clarity.

A. Timing of Received Date

    The Agency must receive all requests, appeals, and other 
communications from requesters, submitted electronically (through EPA's 
electronic FOIA management system or otherwise) before 5:00 p.m. 
Eastern Time for the Agency to consider the communication as received 
on that business day. EPA considers any such communications received 
after 5:00 p.m. Eastern Time as received on the next working day (i.e., 
excluding weekends and federal holidays). This timing rule will govern 
how the Agency calculates its time-periods for action under FOIA, as 
well as time-periods requesters may face (such as the requirement to 
file administrative appeals within 90 days).

B. References to the National FOIA Office

    EPA revises references to the Headquarters FOI Office, Headquarters 
FOIA Office, National FOI Office, etc., to refer to the National FOIA 
Office. The Chief FOIA Officer designates the office that performs the 
duties of the National FOIA Office.

C. Clear Writing Changes

    The EPA makes certain non-substantive changes to clarify references 
to Agency offices, correct grammatical errors, remove gendered 
language, remove second person pronouns, and correct passive voice.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

[[Page 30032]]

B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. Submission 
of a FOIA request is a voluntary action that any member of the public, 
including small entities, can elect to do and the rule relates to the 
procedures for submitting and processing a FOIA request for EPA 
records.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandates as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. It will not have substantial direct effects on 
Indian Tribal governments or on the relationship between the national 
government and the Indian Tribal governments. Thus, Executive Order 
13175 does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk.

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 
12898 (59 FR 7629 (February 16, 1994)) because it does not establish an 
environmental health or safety standard. This regulatory action is a 
procedural change and does not have any impact on human health or the 
environment.

L. Congressional Review Act

    This rule is exempt from the Congressional Review Act because it is 
a rule of agency organization, procedure or practice that does not 
substantially affect the rights or obligations of non-agency parties.

List of Subjects in 40 CFR Part 2

    Environmental Protection, Administrative practice and procedure, 
Confidential Business Information, Freedom of Information, government 
employees.

    Dated: June 14, 2019.
Andrew R. Wheeler,
Administrator.
    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 2, as follows:

PART 2--PUBLIC INFORMATION

0
1. The authority citation for Part 2 is revised to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 
534; 31 U.S.C. 3717.


0
2. Subpart A of Part 2 is revised to read as follows:

Subpart A--Procedures for Disclosure of Records Under the Freedom of 
Information Act
Sec.
2.100 General provisions.
2.101 Where to file requests for records.
2.102 Procedures for making requests.
2.103 Responsibility for responding to requests.
2.104 Responses to requests and appeals.
2.105 [Reserved]
2.106 Preservation of records.
2.107 Fees.
2.108 Other rights and services.

Subpart A--Procedures for Disclosure of Records Under the Freedom 
of Information Act


Sec.  [thinsp]2.100   General provisions.

    (a) This Subpart contains the rules that the Environmental 
Protection Agency (EPA or Agency) follows in processing requests for 
records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. The 
Agency also has rules that it follows in processing FOIA requests for 
records submitted to it as Confidential Business Information (CBI). 
Such records are covered in Subpart B of this Part. Requests made by 
individuals for records about themselves under the Privacy Act of 1974, 
which are processed under 40 CFR part 16, will also be treated as FOIA 
requests under this Subpart. This ensures that the requestor has access 
to all responsive records. Information routinely provided to the public 
as part of a regular EPA activity may be provided to the public without 
following this Subpart.
    (b) EPA will inform the requester of the steps necessary to obtain 
records from agencies operating statutory-based fee schedule programs, 
such as, but not limited to, the Government Printing Office or the 
National Technical Information Service.
    (c) The Chief FOIA Officer designates the office that performs the 
duties of the National FOIA Office. The National FOIA Office reports to 
the Chief FOIA Officer.
    (d) The Chief FOIA Officer designates the FOIA Public Liaisons. The 
FOIA Public Liaisons report to the Chief FOIA Officer. A FOIA Public 
Liaison is an official to whom a requester can raise concerns about the 
service the requester received from the FOIA Requester Service Center. 
A FOIA Public Liaison is responsible for assisting in reducing delays, 
increasing transparency and understanding of the status of requests, 
and assisting in the resolution of disputes. The public can find more 
information about the FOIA Public Liaisons at EPA's website.


Sec.  [thinsp]2.101   Where to file requests for records.

    (a) Requesters must submit all requests for records from EPA under 
the

[[Page 30033]]

FOIA in writing and by one of the following methods:
    (1) EPA's FOIA submission website at https://www.foiaonline.gov;
    (2) An electronic government submission website established 
pursuant to 5 U.S.C. 552(m), such as FOIA.gov;
    (3) U.S. Mail sent to the following address: National FOIA Office, 
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW 
(2310A), Washington, DC 20460; or
    (4) Overnight delivery service to National FOIA Office, U.S. 
Environmental Protection Agency, 1200 Pennsylvania NW, Room 5315, 
Washington, DC 20460. EPA will not treat a request submitted by any 
other method as a FOIA request, and the Agency will not re-route the 
request. The requester or requester organization must include the full 
name of their point of contact and their mailing address for EPA to 
process the request. For all requests, requesters should provide an 
email address and daytime telephone number whenever possible. For 
requests submitted through EPA's FOIA submission website or as provided 
by an electronic government submission website established pursuant to 
5 U.S.C. 552(m), requesters must include an email address. For requests 
submitted through U.S. Mail, the requester must mark both the request 
letter and envelope ``Freedom of Information Act Request.'' The 
requester should not provide social security numbers when making a 
request for information under the FOIA. Requesters submitting requests 
electronically must do so before 5:00 p.m. Eastern Time for the Agency 
to consider the request as received on that date.
    (b) EPA provides access to all records that the FOIA requires an 
agency to make regularly available for public inspection and copying. 
Each office is responsible for determining which of the records it 
generates are required to be made publicly available and for providing 
access by the public to them. The Agency will also maintain and make 
available for public inspection and copying a current subject matter 
index of such records and provide a copy or a link to the respective 
website for Headquarters or the Regions. Each index will be updated 
regularly, at least quarterly, with respect to newly-included records.
    (c) All records created by EPA on or after November 1, 1996, which 
the FOIA requires an agency to make regularly available for public 
inspection and copying, will be made available electronically through 
EPA's website, located at http://www.epa.gov, or, upon request, through 
other electronic means. EPA will also include on its website the 
current subject matter index of all such records.


Sec.  [thinsp]2.102   Procedures for making requests.

    (a) General information. EPA will consider a request received when 
the Agency receives a request by one of the methods identified in Sec.  
2.101(a).
    (b) EPA employees may attempt in good faith to comply with oral 
requests for inspection or disclosure of EPA records publicly available 
under Sec.  [thinsp]2.201(a) and (b), but such requests are not subject 
to the FOIA or this Part.
    (c) Description of records sought. A request should reasonably 
describe the records the requester seeks in a way that will permit EPA 
employees to identify and locate them. Whenever possible, a request 
should include specific information about each record sought, such as 
the date, title or name, author, recipient, and subject matter. If 
known, the requester should include any file designations or 
descriptions for the records that the requester wants. The more 
specific the requester is about the records or type of records that the 
requester wants, the more likely EPA will be able to identify and 
locate records responsive to the request. If EPA determines that the 
request does not reasonably describe the records, EPA will tell the 
requester either what additional information the requester needs to 
provide or why the request is otherwise insufficient. EPA will also 
give the requester an opportunity to discuss and modify the request to 
meet the requirements of this Section.
    (d) Agreement to pay fees. If the requester makes a FOIA request, 
EPA will consider the request to be an agreement that the requester 
will pay all applicable fees charged under Sec.  [thinsp]2.107, up to 
$25.00, unless the requester seeks a waiver of fees. The EPA office 
responsible for responding to the request ordinarily will confirm this 
agreement in writing. When making a request, the requester may specify 
a willingness to pay a greater or lesser amount.


Sec.  [thinsp]2.103   Responsibility for responding to requests.

    (a) In general. Upon receipt of a FOIA request under Sec.  2.101(a) 
of this Subpart, the National FOIA Office will assign the request to an 
appropriate office within the Agency for processing. To determine which 
records are within the scope of a request, an office will ordinarily 
include only those records in the Agency's possession as of the date 
the request was received by one of the methods described in Sec.  
2.101(a). The Agency will inform the requester if any other date is 
used.
    (b) Authority to issue final determinations. The Administrator, 
Deputy Administrators, Assistant Administrators, Deputy Assistant 
Administrators, Regional Administrators, Deputy Regional 
Administrators, General Counsel, Deputy General Counsels, Regional 
Counsels, Deputy Regional Counsels, and Inspector General or those 
individuals' delegates, are authorized to make determinations required 
by 5 U.S.C. 552(a)(6)(A), including to issue final determinations 
whether to release or withhold a record or a portion of a record on the 
basis of responsiveness or under one or more exemptions under the FOIA, 
and to issue ``no records'' responses.
    (c) Authority to grant or deny fee waivers or requests for 
expedited processing. EPA's Chief FOIA Officer or EPA's Chief FOIA 
Officer's delegates are authorized to grant or deny requests for fee 
waivers or requests for expedited processing.
    (d) Consultations and referrals. When a request to EPA seeks 
records in its possession that originated with another Federal agency, 
the EPA office assigned to process the request shall either:
    (1) In coordination with the National FOIA Office, consult with the 
Federal agency where the record or portion thereof originated and then 
respond to the request, or
    (2) With the concurrence of the National FOIA Office, refer the 
request to the Federal agency where the record or portion thereof 
originated. The National FOIA Office will notify the requester whenever 
all or any part of the responsibility for responding to a request has 
been referred to another agency.
    (e) Law enforcement information. Whenever a requester makes a 
request for a record containing information that relates to an 
investigation of a possible violation of law and the investigation 
originated with another agency, the assigned office, with the 
concurrence of the National FOIA Office, will refer the request to that 
other agency or consult with that other agency prior to making any 
release determination.


Sec.  [thinsp]2.104   Responses to requests and appeals.

    (a) Timing of response. The EPA office assigned to process the FOIA 
request will initiate the search, collection, and review process, and 
respond to a request within 20 working days from the date the request 
was received by one of the methods identified in Sec.  2.101(a), unless 
unusual or exceptional circumstances

[[Page 30034]]

exist as provided in paragraph (e) of this section. If EPA fails to 
respond to the request within the statutory time-period, or any 
authorized extension of time, the requester may seek judicial review to 
obtain the records without first making an administrative appeal.
    (b) On receipt of a request, the National FOIA Office ordinarily 
will send a written acknowledgment advising the requester of the date 
the Agency received the request and of the processing number assigned 
to the request for future reference.
    (c) Multitrack processing. The Agency uses three or more processing 
tracks by distinguishing between simple and complex requests based on 
the amount of work, time needed to process the request, or both, 
including limits based on the number of pages involved. The Agency will 
advise the requester of the processing track in which the Agency placed 
the request and the limits of the different processing tracks. The 
Agency may place the request in a slower track while providing the 
requester with the opportunity to limit the scope of the request to 
qualify for faster processing within the specified limits of a faster 
track. If the Agency places the request in a slower track, the Agency 
will contact the requester.
    (d) Tolling the request. Once the request is received, the Agency 
shall not toll the processing time-period except:
    (1) The Agency may toll the processing time-period one time while 
seeking clarification from the requester; or
    (2) The Agency may toll the processing time-period as many times as 
necessary to resolve fee issues.
    (e) Unusual circumstances. When the Agency cannot meet statutory 
time limits for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and the time limits are 
extended on that basis, the Agency will notify the requester in 
writing, as soon as practicable, of the unusual circumstances and of 
the date by which processing of the request should be completed. If the 
20 working-day period is extended, EPA will give the requester an 
opportunity to limit the scope of the request, modify the request, or 
agree to an alternative time-period for processing, as described by the 
FOIA. EPA will also provide contact information for its FOIA Public 
Liaison to assist in the resolution of any disputes between the 
requester and the Agency, and the Agency will notify the requester of 
their right to seek dispute resolution services from the Office of 
Government Information Services within the National Archives and 
Records Administration.
    (f) Expedited processing. (1) EPA will take requests or appeals out 
of order and give expedited treatment whenever EPA determines that such 
requests or appeals involve a compelling need, as follows:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
Federal government activity, if the information is requested by a 
person primarily engaged in disseminating information to the public.
    (2) Requesters must make a request for expedited processing at the 
time of the initial request for records or at the time of appeal.
    (3) If the requester seeks expedited processing, the requester must 
submit a statement, certified to be true and correct to the best of the 
requester's knowledge and belief, explaining in detail the basis for 
the request. For example, if the requester fits within the category 
described in paragraph (f)(1)(ii) of this section and is not a full-
time member of the news media, the requester must establish that they 
are a person whose primary professional activity or occupation is 
information dissemination, although it need not be the requester's sole 
occupation. If the requester fits within the category described in 
paragraph (f)(1)(ii) of this section, the requester must also establish 
a particular urgency to inform the public about the government activity 
involved in the request, beyond the public's right to know about 
government activity generally.
    (4) Within 10 calendar days from the date of the request for 
expedited processing, the Chief FOIA Officer, or the Chief FOIA 
Officer's delegates, will decide whether to grant the request and will 
notify the requester of the decision. If the Agency grants the request 
for expedited processing, the Agency will give the request priority and 
will process the request as soon as practicable. If the Agency denies 
the request for expedited processing, the Agency will act on any appeal 
of that decision expeditiously.
    (g) Grants of requests. Once the Agency determines to grant a 
request in whole or in part, it will release the records or parts of 
records to the requester and notify the requester of any applicable fee 
charged under Sec.  [thinsp]2.107. The office will annotate records 
released in part, whenever technically feasible, with the applicable 
FOIA exemption or exemptions at that part of the record from which the 
exempt information was deleted.
    (h) Adverse determinations of requests. When the Agency makes an 
adverse determination, the Agency will notify the requester of that 
determination in writing. Adverse determinations include:
    (1) A decision that the requested record is exempt from disclosure, 
in whole or in part;
    (2) A decision that the information requested is not a record 
subject to the FOIA;
    (3) A decision that the requested record does not exist or cannot 
be located;
    (4) A decision that the requested record is not readily 
reproducible in the form or format sought by the requester;
    (5) A determination on any disputed fee matter, including a denial 
of a request for a fee waiver; or
    (6) A denial of a request for expedited processing.
    (i) Content of final determination letter. The appropriate official 
will issue the final determination letter in accordance with Sec.  
2.103(b) of this subpart and will include:
    (1) The name and title or position of the person responsible for 
the determination;
    (2) A brief statement of the reason or reasons for the denial, 
including an identification of records being withheld (either 
individually or, if a large number of similar records are being denied, 
described by category) and any FOIA exemption applied by the office in 
denying the request;
    (3) An estimate of the volume of records or information withheld, 
in number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through annotated deletions on records disclosed in part, or 
if providing an estimate would harm an interest protected by an 
applicable exemption;
    (4) A statement that an adverse determination may be appealed under 
(j) of this section and description of the requirements for submitting 
an administrative appeal; and
    (5) A statement that the requester has the right to seek dispute 
resolution services from an EPA FOIA Public Liaison or the Office of 
Government Information Service.
    (j) Appeals of adverse determinations. If the requester is 
dissatisfied with any adverse determination of their request, the 
requester may appeal that determination by letter to the National FOIA 
Office, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue 
NW (2310A), Washington, DC 20460 or hq.foia@epa.gov. The requester must 
make their appeal in writing, and

[[Page 30035]]

the Agency must receive the requester's appeal no later than 90 
calendar days from the date of the letter that denied the request. The 
Agency will not consider appeals received after the 90-calendar day 
limit. Requesters submitting appeals electronically must do so before 
5:00 p.m. Eastern Time for the Agency to consider the appeal as 
received on that date. The appeal letter may include as much or as 
little related information as the requester wishes, as long as it 
clearly identifies the determination being appealed (including the 
assigned FOIA request number, if known). For quickest handling, the 
requester must mark their appeal letter and its envelope with ``Freedom 
of Information Act Appeal.'' Unless the Administrator directs 
otherwise, the General Counsel or the General Counsel's delegate will 
act on behalf of the Administrator on all appeals under this Section, 
except that:
    (1) The Counsel to the Inspector General will act on any appeal 
where the Inspector General or the Inspector General's delegate has 
made the final adverse determination; however, if the Counsel to the 
Inspector General has signed the final adverse determination, the 
General Counsel or the General Counsel's delegate will act on the 
appeal;
    (2) An adverse determination by the Administrator on an initial 
request will serve as the final action of the Agency; and
    (3) If a requester seeks judicial review because the Agency has not 
responded in a timely manner, any further action on an appeal will take 
place through the lawsuit.
    (k) EPA will make the decision on the appeal in writing, normally 
within 20 working days of its receipt by the National FOIA Office. A 
decision affirming an adverse determination in whole or in part will 
contain a statement of the reason or reasons for the decision, 
including any FOIA exemption or exemptions applied, and inform the 
requester of the FOIA provisions for judicial review of the decision. 
If the Agency reverses or modifies the adverse determination on appeal, 
the Agency will notify the requester in a written decision. In the 
written decision, the Agency will attach the requested information that 
the Agency determined on appeal to be releasable, or the Agency will 
return the request to the appropriate office so that the office may 
reprocess the request in accordance with the appeal decision.
    (l) If the requester wishes to seek judicial review of any adverse 
determination, the requester must first appeal that adverse 
determination under this Section, except when EPA has not responded to 
the request within the applicable time-period. In such cases, the 
requester may seek judicial review without making an administrative 
appeal.


Sec.  [thinsp]2.105   [Reserved]


Sec.  [thinsp]2.106   Preservation of records.

    The Agency shall preserve all correspondence pertaining to the FOIA 
requests that it receives until disposition or destruction is 
authorized by title 44 of the United States Code or the National 
Archives and Records Administration's General Records Schedule 14. 
Copies of all responsive records should be maintained by the 
appropriate program office. Records shall not be disposed of while they 
are the subject of a pending request, appeal, or lawsuit under the 
FOIA.


Sec.  [thinsp]2.107   Fees.

    (a) In general. The Agency will charge for processing requests 
under the FOIA in accordance with paragraph (c) of this section, except 
where fees are limited under paragraph (d) of this section or where a 
waiver or reduction of fees is granted under paragraph (l) of this 
section. Requesters will pay fees by check or money order made payable 
to the U.S. Environmental Protection Agency.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers the 
requester's commercial, trade, or profit interests, which can include 
furthering those interests through litigation. The Agency will 
determine, whenever reasonably possible, the use to which a requester 
will put the requested records. When it appears that the requester will 
put the records to a commercial use, either because of the nature of 
the request itself or because the Agency has reasonable cause to doubt 
a requester's stated use, the Agency will provide the requester a 
reasonable opportunity to submit further clarification.
    (2) Direct costs means those expenses that the Agency actually 
incurs in searching for and duplicating (and, in the case of commercial 
use requests, reviewing) records to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing the 
work and the cost of operating duplication equipment. Not included in 
direct costs are overhead expenses such as the costs of space and 
heating or lighting of the facility in which the records are kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape, disk, or compact disk), 
among others. The Agency will honor a requester's specified preference 
of form or format of disclosure if the record is readily reproducible 
with reasonable efforts in the requested form or format.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, 
a requester must show that the request is authorized by, and is made 
under the auspices of, a qualifying institution and that the records 
are not sought for a commercial use but are sought to further scholarly 
research.
    (5) Noncommercial scientific institution means an institution not 
operated on a ``commercial'' basis, as defined in paragraph (b)(1) of 
this section, and that is operated solely for conducting scientific 
research that is not intended to promote any particular product or 
industry. To be in this category, a requester must show that a 
qualifying institution authorizes the request, that the requester makes 
the request under the auspices of the qualifying institution, and that 
the requester does not seek the records for a commercial use but to 
further scientific research.
    (6) Representative of the news media has the meaning provided at 5 
U.S.C. 552(a)(4)(A)(ii).
    (7) Review means the examination of a record located in response to 
a request to determine whether any portion of it is exempt from 
disclosure. It also includes processing any record for disclosure (for 
example, doing all that is necessary to redact it and prepare it for 
disclosure). Review costs are recoverable even if a record ultimately 
is not disclosed. Review time includes time spent considering any 
formal objection to disclosure made by a business submitter requesting 
confidential treatment but does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within

[[Page 30036]]

records and includes reasonable efforts to locate and retrieve 
information from records maintained in electronic form or format. 
Offices will ensure that searches are done in the most efficient and 
least expensive manner reasonably possible. For example, offices will 
not search line-by-line where duplicating an entire document would be 
quicker and less expensive.
    (c) Fees to be charged. (1) There are four categories of requests. 
The Agency charges fees for each of these categories as follows:
    (i) Commercial use requests. The Agency will charge a requester 
seeking access to records for a commercial use for the time spent 
searching for the records, reviewing the records for possible 
disclosure, and for the cost of each page of duplication. The Agency 
may charge for searching for and/or reviewing the records even if no 
responsive records are found or if the records are located but are 
determined to be exempt from disclosure.
    (ii) Educational or non-commercial scientific requests. The Agency 
will charge requesters from educational or noncommercial scientific 
institution, whose purpose is scholarly or scientific research, only 
for the cost of record duplication, except that the Agency will furnish 
the first 100 pages of duplication at no charge.
    (iii) News media requests. The Agency will charge requesters who 
are representatives of the news media, and whose purpose in seeking 
records is noncommercial, for the cost of duplication, except that the 
first 100 pages of duplication will be furnished at no charge.
    (iv) All other requests. The Agency will charge requesters not 
covered by one of the three categories above for the full cost of 
search and duplication, except that the Agency will furnish without 
charge the first two hours of search time and the first 100 pages of 
duplication. The Agency will charge for searching for the records even 
if no responsive records are found or if the records are located but 
are determined to be exempt from disclosure.
    (2) In responding to FOIA requests, the Agency will charge the 
following fees unless a waiver or reduction of fees has been granted 
under paragraph (l) of this section:
    (i) Search. (A) The Agency will charge search fees for all requests 
except for those made by educational institutions or noncommercial 
scientific institutions, or representatives of the news media subject 
to the limitations of paragraph (d) of this section. The Agency will 
charge for time spent searching even if no responsive records are found 
or if the records are located but are determined to be exempt from 
disclosure.
    (B) For searches and retrievals of requested records, either 
manually or electronically, conducted by clerical personnel, the fee 
will be $4.00 for each quarter hour of time. For searches and 
retrievals of requested records, either manually or electronically, 
requiring the use of professional personnel, the fee will be $7.00 for 
each quarter hour of time. For searches and retrievals of requested 
records, either manually or electronically, requiring the use of 
managerial personnel, the fee will be $10.25 for each quarter hour of 
time.
    (C) When contractors conduct searches and retrievals, the Agency 
will charge requesters for the actual charges up to but not exceeding 
the rate that the Agency would have charged the requester had EPA 
employees conducted the search. The Agency will charge the costs of 
actual computer resource usage in connection with such searches, to the 
extent they can be determined.
    (ii) Duplication. The Agency will charge duplication fees to all 
requesters, subject to the limitations of paragraph (d) of this 
section. For either a photocopy or a computer-generated printout of a 
record (no more than one copy of which need be supplied), the fee will 
be fifteen (15) cents per page. For electronic forms of duplication, 
other than a computer-generated printout, offices will charge the 
direct costs of that duplication. Such direct costs will include the 
costs of the requested electronic medium on which the copy is to be 
made and the actual operator time and computer resource usage required 
to produce the copy, to the extent they can be determined.
    (iii) Review. The Agency will charge review fees to requesters who 
make a commercial use request. The Agency will charge review fees only 
for the initial record review (that is, the review done when an office 
is deciding whether an exemption applies to a particular record or 
portion of a record at the initial request level). The Agency will not 
charge for review at the administrative appeal level for an exemption 
already applied. However, the Agency may again review records or 
portions of records withheld under an exemption that the Agency 
subsequently determines not to apply to determine whether any other 
exemption not previously considered applies; the Agency will charge 
costs of that review when a change of circumstances makes it necessary. 
The Agency will charge review fees at the same rates as those charged 
for a search under paragraph (c)(1)(i) of this section.
    (d) Limitations on charging fees. (1) The Agency will charge no 
search or review fees for requests by educational institutions or 
noncommercial scientific institutions, or representatives of the news 
media.
    (2) The Agency will charge no search fee or review fee for a 
quarter-hour period unless more than half of that period is required 
for search or review.
    (3) Except for requesters seeking records for a commercial use, 
offices will provide without charge:
    (i) The first 100 pages of duplication, and
    (ii) The first two hours of search.
    (4) The Agency will charge no fee when a total fee calculated under 
paragraph (c) of this section is $14.00 or less for any request.
    (5) The provisions of paragraphs (d)(3) and (4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, the Agency will charge no fee unless the 
cost of search in excess of two hours plus the cost of duplication in 
excess of 100 pages totals more than $14.00.
    (6) If EPA fails to comply with the FOIA's time limits for 
responding to a request, EPA will not charge search fees, or, in the 
instance of requesters described in paragraphs (b)(4) through (6) of 
this section, duplication fees, except as follows:
    (i) If EPA determined that unusual circumstances as defined by the 
FOIA apply and the Agency provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be excused for an additional 10 working days;
    (ii) If EPA determined that unusual circumstances as defined by the 
FOIA apply and more than 5,000 pages are necessary to respond to the 
request, EPA may charge search fees, or, in the case of requesters 
described in paragraph paragraphs (b)(4) through (6) of this section, 
may charge duplication fees, if the following steps are taken: EPA must 
have provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and the EPA must have discussed 
with the requester by written mail, email, or telephone (or made not 
less than three good-faith attempts to do so) how the requester could 
effectively limit the scope of the request in accordance with 5 U.S.C. 
552(a)(6)(B)(ii), which includes notification to the requester of the 
availability of the FOIA Public Liaison and the right to seek dispute 
resolution services from the Office of Government

[[Page 30037]]

Information Services. If this exception is satisfied, EPA may charge 
all applicable fees incurred in the processing of the request; or
    (iii) If a court determines that exceptional circumstances exist, 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (e) Notice of anticipated fees in excess of $25.00. When the Agency 
determines or estimates that the fees the Agency will charge under this 
Section will amount to more than $25.00, the Agency will notify the 
requester of the actual or estimated amount of the fees, unless the 
requester has indicated a willingness to pay fees as high as those 
anticipated. The amount of $25.00 is cumulative for multi-office 
requests. If the Agency can only readily estimate a portion of the fee, 
the Agency will advise the requester that the estimated fee may be only 
a portion of the total fee. When the Agency notifies a requester that 
actual or estimated fees will amount to more than $25.00, the Agency 
will do no further work on the request until the requester agrees to 
pay the anticipated total fee. The Agency will exclude time from the 
twenty (20) working day time limit. EPA will memorialize any such 
agreement in writing. A notice under this paragraph will offer the 
requester an opportunity to discuss the matter with Agency personnel to 
reformulate the request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, when the Agency chooses as a matter of administrative 
discretion to provide a special service--such as certifying that 
records are true copies or sending records by other than ordinary 
mail--the Agency will ordinarily charge the direct costs of providing 
the service.
    (g) Charging interest. EPA may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
The Agency will assess interest charges at the rate provided in 31 
U.S.C. 3717 and will accrue from the date of the billing until the 
Agency receives payment. EPA will follow the provisions of the Debt 
Collection Act of 1982 (Pub. L. 97-365), as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset. The Agency will assess no 
penalty against FOIA requesters for exercising their statutory right to 
ask the Agency to waive or reduce a fee or to dispute a billing. If a 
fee is in dispute, the Agency will suspend penalties upon notification.
    (h) Delinquent requesters. If requesters fail to pay all fees 
within 60 calendar days of the fees assessment, the Agency will place 
the requester on a delinquency list. The Agency will not process 
subsequent FOIA requests until the requester makes payment of the 
overdue fees.
    (i) Aggregating requests. When the Agency reasonably believes that 
a requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the Agency may aggregate those requests and charge accordingly. 
The Agency may presume that multiple requests of this type made within 
a 30-day period have been made to avoid fees. When requests are 
separated by a longer period, the Agency will aggregate them only if 
there exists a solid basis for determining that aggregation is 
warranted under all the circumstances involved. The Agency will not 
aggregate multiple requests involving unrelated matters.
    (j) Advance payments. (1) For requests other than those described 
in paragraphs (j)(2) and (3) of this section, the Agency will not 
require the requester to make an advance payment (that is, a payment 
made before EPA begins or continues work on a request). Payment owed 
for work already completed (that is, a prepayment before the Agency 
sends copies to a requester) is not an advance payment.
    (2) When the Agency determines or estimates that a total fee to be 
charged under this section will be more than $250.00, it may require 
the requester to make an advance payment of an amount up to the amount 
of the entire anticipated fee before beginning to process the request, 
except when it receives a satisfactory assurance of full payment from a 
requester that has a history of prompt payment.
    (3) When a requester has previously failed to pay a properly 
charged FOIA fee to the Agency within 30 calendar days of the date of 
billing, the Agency may require the requester to pay the full amount 
due, plus any applicable interest, and to make an advance payment of 
the full amount of any anticipated fee, before the Agency begins to 
process a new request or continues to process a pending request from 
that requester.
    (4) When the Agency requires advance payment or payment due under 
paragraph (j)(3) of this section, the Agency will not consider the 
request, and EPA will do no further work on the request until the 
requester makes the required payment.
    (k) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any other 
statute that specifically requires an agency to set and collect fees 
for particular types of records. When records responsive to requests 
are maintained for distribution by agencies operating such statutorily 
based fee schedule programs, EPA will inform requesters of the steps 
for obtaining records from those sources so that they may do so most 
economically.
    (l) Waiver or reduction of fees. (1) Records responsive to a 
request will be furnished without charge or at a charge reduced below 
that established under paragraph (c) of this section when the Agency 
determines, based on all available information, that disclosure of the 
requested information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government and is not primarily in the commercial 
interest of the requester.
    (2) To determine whether the request meets the first fee waiver 
requirement, the Agency will consider the following factors:
    (i) The subject of the request. Whether the subject of the 
requested records concerns ``the operations or activities of the 
government.'' The subject of the requested records must concern 
identifiable operations or activities of the Federal government, with a 
connection that is direct and clear, not remote.
    (ii) The informative value of the information to be disclosed. 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding when nothing new would be 
added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public is likely to result from the disclosure. Whether disclosure of 
the requested information will contribute to ``public understanding.'' 
The disclosure must contribute to the understanding of a reasonably 
broad audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. The Agency will consider a 
requester's expertise in the subject area and ability and intention to 
effectively

[[Page 30038]]

convey information to the public. The Agency presumes that a 
representative of the news media will satisfy this consideration.
    (iv) The significance of the contribution to public understanding. 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a significant extent. The Agency will not 
make value judgments about whether information that would contribute 
significantly to public understanding of the operations or activities 
of the government is ``important'' enough to be made public.
    (3) To determine whether the request meets the second fee waiver 
requirement, the Agency will consider the following factors:
    (i) The existence and magnitude of a commercial interest. Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. The Agency will consider any commercial interest 
of the requester (with reference to the definition of ``commercial use 
request'' in paragraph (b)(1) of this section), or of any person on 
whose behalf the requester may be acting, that would be furthered by 
the requested disclosure. The Agency will give the requester an 
opportunity in the administrative process to provide explanatory 
information regarding this consideration.
    (ii) The primary interest in disclosure. Whether any identified 
commercial interest of the requester is sufficiently large, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. The Agency ordinarily 
will presume that when a news media requester has satisfied the public 
interest standard, the public interest will be the interest primarily 
served by disclosure to that requester. The Agency will not presume 
that disclosure to data brokers or others who merely compile and market 
government information for direct economic return is to primarily serve 
the public interest.
    (4) When only some of the requested records satisfy the 
requirements for a waiver of fees, the Agency will grant a waiver for 
only those records.
    (5) Requests for the waiver or reduction of fees must address the 
factors listed in paragraphs (k)(l) through (3) of this section, as far 
as they apply to each request. Offices will exercise their discretion 
to consider the cost-effectiveness of their investment of 
administrative resources in deciding whether to grant waivers or 
reductions of fees and will consult the appropriate EPA offices as 
needed. Requesters must submit requests for the waiver or reduction of 
fees along with the request.
    (6) When the EPA denies a fee waiver request, EPA will do no 
further work on the request until it receives an assurance of payment 
from the requester, or until the requester appeals the fee waiver 
adverse determination and the EPA completes its final appeal 
determination pursuant to Sec.  [thinsp]2.104(j).


Sec.  [thinsp]2.108   Other rights and services.

    Nothing in this Subpart shall be construed to entitle any person, 
as a right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

[FR Doc. 2019-13290 Filed 6-25-19; 8:45 am]
 BILLING CODE 6560-50-P


