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Federal Register / Vol. 67, No.

214 / Tuesday, November 5, 2002 / Rules and Regulations 67303

Risks and Safety Risks. This rule is not Authority: 33 U.S.C. 1231; 50 U.S.C. 191; (iii) Vessels providing direct
an economically significant rule and 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; operational/logistic support to
does not create an environmental risk to 49 CFR 1.46. commercial vessels within these zones;
health or risk to safety that may 2. A new temporary § 165.T08–108 is (iv) Vessels operated by the
disproportionately affect children. added to read as follows: appropriate port authority or by
facilities located within these zones;
Indian Tribal Governments § 165.T08–108 Security Zones; Captain of and
This rule does not have tribal the Port Houston-Galveston Zone. (v) Vessels operated by Federal, State,
implications under Executive Order (a) Location. The following areas are county, or municipal agencies.
13175, Consultation and Coordination designated as security zones: (2) Other persons or vessels requiring
with Indian Tribal Governments, (1) Houston, TX. The Houston Ship entry into a zone described in this
because it does not have a substantial Channel and all associated turning section must request express permission
direct effect on one or more Indian basins, bounded by a line drawn to enter from the Captain of the Port
tribes, on the relationship between the between Houston Ship Channel Light Houston-Galveston, or his designated
Federal Government and Indian tribes, 132 (LLNR–24445) and Houston Ship representative.
or on the distribution of power and Channel Light 133 (LLNR–24450) west (3) To request permission as required
responsibilities between the Federal to the T & N Rail Road Swing Bridge at by these regulations contact ‘‘Houston
Government and Indian tribes. the entrance to Buffalo Bayou, including Traffic’’ via VHF Channels 11/12 or via
Energy Effects all waters adjacent to the ship channel phone at (713) 671–5103.
from shoreline to shoreline and the first (4) All persons and vessels shall
We have analyzed this rule under 200 yards of connecting waterways. comply with the instructions of the
Executive Order 13211, Actions (2) Morgan’s Point, TX. The Barbours Captain of the Port Houston-Galveston
Concerning Regulations That Cut Ship Channel and Turning Basin and designated on-scene U.S. Coast
Significantly Affect Energy Supply, containing all waters west of a line Guard patrol personnel. On-scene U.S.
Distribution, or Use. We have drawn between Junction Light Coast Guard patrol personnel include
determined that it is not a ‘‘significant ‘‘Barbours Cut’’ 29°41′12″ N, 94°59′12″ commissioned, warrant, and petty
energy action’’ under that Order because W (LLNR–23525), and Houston Ship officers of the U.S. Coast Guard.
it is not a ‘‘significant regulatory action’’ Channel Light 91, 29°41′00″ N, Dated: October, 11 2002.
under Executive Order 12866 and is not 94°59′00″ W (LLNR–23375) (NAD 1983).
likely to have a significant adverse effect Kevin S. Cook,
(3) Bayport, TX. The Port of Bayport,
on the supply, distribution, or use of Captain, U.S. Coast Guard, Captain of the
Bayport Ship Channel and Bayport Port Houston-Galveston.
energy. It has not been designated by the Turning Basin containing all waters
Administrator of the Office of [FR Doc. 02–28090 Filed 11–4–02; 8:45 am]
south of latitude 29°36′45″ N and west
Information and Regulatory Affairs as a of the Bayport Ship Channel Light 9 BILLING CODE 4910–15–P
significant energy action. Therefore, it (LLNR–23295) (NAD 1983).
does not require a Statement of Energy (4) Texas City, TX. The Port of Texas
Effects under Executive Order 13211. City Channel, Turning Basin and ENVIRONMENTAL PROTECTION
Industrial Canal containing all waters AGENCY
Environment
bounded by the area South and West of
We have considered the 40 CFR Part 2
a line drawn from Texas City Channel
environmental impact of this rule and Light 19 (LLNR 24810) through Cut B [OEI–2002–0005; FRL–7404–4]
concluded that under figure 2–1, Inner Range Front Light (LLNR 24765)
paragraph 34(g), of Commandant RIN 2025–AA04
and terminating on land in position
Instruction M16475.1D, this rule is 29°23′16″ N, 94°53′15″ W (NAD 1983).
categorically excluded from further Revised Freedom of Information Act
(5) Freeport, TX. (i) The Dow Barge Regulations
environmental documentation because
Canal containing all waters bounded by
this rule is not expected to result in any AGENCY: Environmental Protection
its junction with the Intracoastal
significant environmental impact as Agency.
Waterway, by a line drawn between the
described in the National
eastern point at 28°56′48″ N, 95°18′20″ ACTION: Final rule.
Environmental Policy Act of 1969
W, and the western point at 28°56′40″
(NEPA). A ‘‘Categorical Exclusion SUMMARY: This document revises
N, 95°18′33″ W (NAD 1983).
Determination’’ is available for subpart A of the Environmental
(ii) The Brazos Harbor containing all
inspection or copying where indicated Protection Agency (EPA or Agency)
waters west of a line drawn between the
under ADDRESSES. regulations implementing the Freedom
northern point at 28°56′27″ N, 95°20′00″
List of Subjects in 33 CFR Part 165 W, and the southern point 28°56′09″ N, of Information Act (FOIA). EPA is
95°20′00″ W (NAD 1983) at its junction streamlining and condensing its
Harbors, Marine safety, Navigation regulations, in accordance with the
(water), Reporting and recordkeeping with the Old Brazos River Cut.
(b) Effective dates. This section is principles of the National Performance
requirements, Security measures, Review, and is using simpler language
Waterways. effective from 8 a.m. on October 15,
2002 through 8 a.m. on April 15, 2003. whenever possible. In addition, the
For the reasons discussed in the regulations contain new provisions
(c) Regulations. (1) Entry into these
preamble, the Coast Guard amends 33 implementing the Electronic Freedom of
zones is prohibited except for the
CFR part 165 as follows: Information Act Amendments of 1996
following:
(i) Commercial vessels operating at (E-FOIA) and update cost figures for
PART 165—REGULATED NAVIGATION calculating and charging fees.
AREAS AND LIMITED ACCESS AREAS waterfront facilities within these zones;
(ii) Commercial vessels transiting EFFECTIVE DATE: November 5, 2002.
1. The authority citation for part 165 directly to or from waterfront facilities FOR FURTHER INFORMATION CONTACT:
continues to read as follows: within these zones; Betty A. Lopez, Records, Privacy and

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67304 Federal Register / Vol. 67, No. 214 / Tuesday, November 5, 2002 / Rules and Regulations

FOIA Branch, Collection Strategies April 12, 2000. Interested persons were The Agency also agrees with one
Division, Office of Information afforded an opportunity to participate in commenter’s suggestion to include the
Collection, Office of Environmental the rulemaking through submission of e-mail addresses of the Agency’s
Information (OEI), EPA, 1200 written comments on the proposed rule. Freedom of Information (FOI) Offices, a
Pennsylvania Ave, NW. (2822T), The Agency received eight comments on reference to the Agency’s online forms
Washington, DC 20460. Phone, (202) its proposed rule. The Agency has for filing FOIA requests, and
566–1667; Fax, (202) 566–2147. e-mail, adopted several of the suggested clarification that a FOIA request must be
hq.foia@epa.gov. changes made by the commenters and in writing and may be submitted by
SUPPLEMENTARY INFORMATION: has also made other revisions to its mail, facsimile (fax), or electronically.
proposed rule for clarity. Accordingly, the Agency has revised
I. General Information § 2.101(a) to include the e-mail
New provisions implementing the
A. How Can I Get Copies Of This suggested changes made by the addresses and the last sentence of
Document and Other Related commenters are found at § 2.100(a), § 2.102(a) recommending that
Information ? § 2.101(a), § 2.101(c) (electronic envelopes, fax cover sheets, or e-mail
availability of records), § 2.102(a)— subject lines be marked, ‘‘Freedom of
1. Docket. EPA has established an
§ 2.102(d) (process for requesting Information Act Request.’’ Since
official public docket for this action
records), § 2.103 (responsibility for telephone and fax numbers are subject
under Docket ID No.OEI–2002–0005.
responding for requests), § 2.104(a) to change, the Agency has not included
The official public docket consists of the
(deadline for response), § 2.104(b) the numbers in the final rule. Current
documents specifically referenced in
(timing of responses, acknowledgment ), telephone and fax numbers may be
this action, any public comments
§ 2.104(c) (multitrack processing), obtained from the Agency’s web site.
received, and other information related
to this action. Although a part of the § 2.104(d) (unusual circumstances), One commenter suggested the
official docket, the public docket does § 2.104(e) (expedited processing), deletion of the phrase ‘‘created by EPA’’
not include Confidential Business § 2.104(f) (annotation of applicable in § 2.101(c) and rescission of an
Information (CBI) or other information exemption), § 2.104(h) (denial of allegedly erroneous interpretation of the
whose disclosure is restricted by statute. records), § 2.104 (i) (denial of fee statutory phrase ‘‘created on or after
The official public docket is the waivers), § 2.104(j)(2) (appeal of November 1, 1996.’’ The Agency
collection of materials that is available Inspector General determinations), disagrees with the commenter and
for public viewing at the EPA Docket § 2.104(j)(4) (closing of appeal if believes that these phrases are in
Center, Public Reading Room, Room litigation initiated), § 2.104(k) accordance with the plain language of
B102, EPA West Building, 1301 (exhaustion of administrative appeal the statute.
Constitution Avenue, NW., Washington, rights), § 2.105 (exemption categories), The Agency agrees with one
DC. This Docket Facility is open from § 2.107(b)(3) (format of disclosure), and commenter’s suggestion to revise
8:30 a.m. to 4:30 p.m., Monday through § 2.107(b)(8) (searches for electronic § 2.102(c) to match the language of FOIA
Friday, excluding legal holidays. The records). Revisions to the Agency’s fee at 5 U.S.C. 552(a)(3)(A) on what
Public Reading Room telephone number schedule are found at §§ 2.107(c) and constitutes a reasonable request.
is (202) 566–1744. (d). Accordingly, the Agency has modified
2. Electronic Access. You may access § 2.102(c) concerning the description of
Comments
this Federal Register document records sought.
electronically through the EPA Internet The Agency received a total of eight One commenter suggested the Agency
under the ‘‘Federal Register’’ listings at comments from the following: a amend § 2.103(a) to provide that EPA
http://www.epa.gov/fedrgstr/. nonprofit group that regularly uses the will review all responsive records ‘‘in
An electronic version of the public FOIA; an association that represents its possession as of the date the FOI
docket is available through EPA’s electric utilities, international affiliates, Office begins processing the request.’’
electronic public docket and comment and industry associates; a The Agency disagrees with the
system, EPA Dockets. You may use EPA manufacturing and services company; a suggestion but has modified § 2.103(a)
Dockets at http://www.epa.gov/edocket/ law firm on behalf of a manufacturing to clarify that only those records in
to view public comments, access the company; a law firm on behalf of an ad EPA’s possession as of the date the
index listing of the contents of the hoc group of electric utilities and trade FOIA request was received in the
official public docket, and to access associations; a citizen; an association appropriate FOI Office will be
those documents in the public docket that represents cattle feeders and family considered within the scope of the
that are available electronically. ranchers; and the EPA Office of request.
Although not all docket materials may Inspector General. Further, the Agency agrees with the
be available electronically, you may still In some instances, commenters suggestion of two commenters that
access any of the publicly available suggested particular changes to the § 2.103(c) be revised to set forth the
docket materials through the docket proposed rule. Several of the suggested standard EPA will use to decide
facility identified in Unit I.A 1. Once in changes have been accepted and whether to refer a request to another
the system, select ‘‘search,’’ then key in incorporated into the Agency’s final Federal agency. Accordingly, § 2.103(c)
the appropriate docket identification rule. For example, several commenters has been revised to state that where
number. suggested the rule should list the FOIA records responsive to the request
statutory exemptions and refer to originated with another Federal agency,
II. Background Information subpart B of these regulations to further EPA will either refer the request to the
On April 12, 2000, the EPA published address the handling of confidential other agency or, after consultation,
a proposed rule to revise 40 CFR part 2, business information. The Agency respond to the request itself. In
subpart A, and add new provisions agrees and has modified § 2.100(a) to addition, whenever all or any part of a
implementing the Electronic Freedom of include a reference to subpart B of these request has been transferred to another
Information Act Amendments of 1996, regulations and has listed the statutory agency for response, EPA will notify the
Public Law 104–231. See 65 FR 19703, exemptions at § 2.105. requestor.

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Federal Register / Vol. 67, No. 214 / Tuesday, November 5, 2002 / Rules and Regulations 67305

Three commenters suggested that the delay and of the extended date for determination, in which case the
language in §§ 2.104(b) and (k) regarding response. The commenter also suggests General Counsel, or their designee,
proposed time limits does not comply that the Agency should incorporate the would respond to the appeal.
with the time limits prescribed by FOIA statutory definition of ‘‘unusual One commenter suggested that the
at 5 U.S.C. 552(a)(6)(A)(i) and (ii), which circumstances’’ to avoid any confusion. Agency should eliminate proposed
provide that an agency must always In response to the commenter’s § 2.104(j)(3), which stated that the
respond to an initial FOIA request suggestions, the Agency has inserted the Agency would take no further action on
within 20 working days and to an phrase ‘‘as defined in the FOIA’’ into an appeal if the request becomes a
appeal within 20 working days. The this provision to alert requesters to the matter of FOIA litigation, because it
commenters recommended that statutory basis of the definition of the penalizes requesters who exercise their
§ 2.104(b) be rewritten to delete the term ‘‘unusual circumstances,’’ although statutory right to sue the Agency if the
language ‘‘[c]omponents ordinarily will we have retained the proposed language Agency fails to respond to the
respond to requests no later than twenty in § 2.104(e) regarding notification. requester’s appeal within 20 working
(20) working days from the date the Two commenters suggested changes days, as provided by § 2.104(j)(4). This
request is received.’’ Similarly, the to § 2.104(f) concerning expedited language is not intended to penalize
commenters recommended that processing. Specifically, one commenter requesters or to suggest that EPA will
§ 2.104(k) be rewritten to delete the recommended that the Agency use the take no further action on the matter but
language ‘‘[t]he decision on an appeal multitrack authority to expedite to indicate that once a lawsuit has been
will be made normally in writing, requests that are likely to be the subject filed, any further actions on behalf of
within 20 working days of its receipt.’’ of multiple requests. Another the Agency will be taken in the context
The Agency has modified § 2.104(b) to commenter suggested that the expedited of the litigation and not the
clarify that unusual circumstances may processing provision is too narrow and administrative appeal process.
provide for a response outside the 20 should be rewritten so that it guarantees Therefore, EPA has added language in
working day statutory time limit. Also, expedited processing to any requester § 2.104(j)(4) to reflect that once an
§ 2.104(k) has been modified by who ‘‘demonstrates a compelling need’’ appellant has initiated litigation because
removing any reference to time limits. for the requested records. The Agency the Agency has not resolved an appeal
Moreover, § 2.104(l) has been modified declines to adopt the first comment in a timely manner, any further action
to clarify that judicial action may be because it believes that it is implicit in on the records in dispute will take place
taken should EPA not respond to an the current language of § 2.104(f) that through the lawsuit.
appeal within the statutory 20 working those requests being given expedited The Agency agrees with one
day time limit. processing will receive immediate commenter’s suggestion to revise
The Agency agrees with the priority. Moreover, the current language § 2.104(l) because an administrative
suggestion of two commenters to change of § 2.104(l) clearly states that when a appeal is not necessary when the
§ 2.104(c) to comport with the requester meets the criteria set out in Agency has not made a timely initial
requirements of FOIA at 5 U.S.C. the regulation for establishing a determination. Accordingly, the Agency
552(a)(6)(C)(i) concerning when compelling need, expedited processing has inserted language in §§ 2.104(b) and
requesters may be deemed to have will be granted. Accordingly, a (l) stating that if EPA fails to respond to
exhausted their administrative ‘‘guarantee of expedited processing’’ is a request within the statutory 20
remedies. Accordingly, the Agency has unnecessary and the Agency declines to working day period or any authorized
modified § 2.104(b) to provide notice adopt the second comment. extension of time, the requester may
that requesters have a right to seek Three commenters suggested that the
seek judicial review to obtain the
immediate judicial review when the proposal retain the language for listing
records without first making an
Agency fails to respond to a request withheld records as it appears in
administrative appeal.
within the statutory 20 working day existing 40 CFR 2.113. The Agency
The Agency has removed the word
period or any authorized extension of agrees and has revised § 2.104(i)(2) to
‘‘component’’ from the proposed
time. include the language for identifying
regulations, and replaced it with
Three commenters suggested that records being withheld.
The EPA Office of Inspector General ‘‘Agency’’ or ‘‘office’’ as appropriate to
proposed § 2.104(d) provides no
standards to guide the Agency when requested that the rule be revised to reflect more accurately the Agency’s
distinguishing between simple and delegate authority to the Counsel to the organizational structure.
complex requests based on the amount Inspector General to respond to appeals III. Statutory Authority
of work or time (or both) expended for of denials of requests for Office of
EPA is issuing this rule under the
processing a request. The Agency Inspector General records. The Office of
Inspector General commented that authority of 5 U.S.C. 301, 552 (as
believes that the current language,
appeals of denials of access to Office of amended), and 553.
stating that the amount of work or time
(or both) to process a request, as well as Inspector General records are currently IV. Administrative Requirements
informing requesters that they have the handled by EPA’s General Counsel and,
in its view, Inspector General A. Regulatory Flexibility Act, as
opportunity to limit the scope of their
independence requires that the Office of amended
requests in order to qualify for faster
processing, directly comports with the Inspector General maintain full The Regulatory Flexibility Act, as
statutory language and therefore it responsibility for, and custody and amended by the Small Business
declines to revise § 2.104(d). control over, all Office of Inspector Regulatory Enforcement Fairness Act of
One commenter suggests that the ‘‘as General records. The Agency agrees and 1996, 5 U.S.C. 601 et seq., generally
soon as practicable’’ language in has added § 2.104(j)(2) to authorize the requires an agency to prepare a
proposed § 2.104(e) should be changed Counsel to the Inspector General to act regulatory flexibility analysis of any rule
to provide that the Agency shall notify on appeals of denials of requests for subject to notice and comment
a requester in writing, ‘‘within 20 days Office of Inspector General records, rulemaking requirements under the
of the date the request is received’’ of unless the Counsel to the Inspector Administrative Procedure Act or any
the unusual circumstances that warrant General has signed the adverse initial other statute, unless the agency certifies

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67306 Federal Register / Vol. 67, No. 214 / Tuesday, November 5, 2002 / Rules and Regulations

that the rule will not have a significant D. Environmental Impact implementing the FOIA. Thus, the
economic impact on a substantial This final rule is expected to have no requirements of section 6 of the
number of small entities. Small entities environmental impact. It pertains solely Executive Order do not apply to this
include small businesses, small to the dissemination of information final rule.
organizations, and small governmental under the FOIA. G. Executive Order 13175 on
jurisdictions.
For purposes of assessing the impacts Consultation with Indian Tribal
E. Executive Order 12866
of today’s rule on small entities, small Governments
Under Executive Order 12866 (58 FR Executive Order 13175, entitled, ‘‘A
entity is defined as: (1) A small business 51735, October 4, 1993), EPA must
as that term is defined in the Small Consultation and Coordination with
determine whether this final rule is Indian Tribal Governments’’ (65 FR
Business Administration’s regulations at
‘‘significant’’ and therefore subject to 67249, November 6, 2000), requires EPA
13 CFR 121.201; (2) a small
Office of Management and Budget to develop an accountable process to
governmental jurisdiction that is a
(OMB) review and the requirements of ensure ‘‘ meaningful and timely input
government of a city, county, town,
the Executive Order. The Order defines by tribal officials in the development of
school district or special district with a
‘‘significant regulatory action’’ as one regulatory policies that have tribal
population of less than 50,000; and (3)
that is likely to result in a rule that may: implications.’’ ‘‘Policies that have tribal
a small organization that is any not-for-
(1) Have an annual effect on the implications’’ is defined in the
profit enterprise which is independently
economy of $100 million or more or Executive Order to include regulations
owned and operated and is not
dominant in its field. adversely affect in a material way the that have ‘‘substantial direct effects on
EPA has determined that this final economy, a sector of the economy, one or more Indian tribes, on the
rule will have only a small economic productivity, competition, jobs, the relationship between the Federal
impact on the small entities that submit environment, public health or safety, or government and the Indian tribes, or on
FOI requests to EPA for records. Under State, local, or tribal governments or the distribution of power and
the FOIA, agencies may recover only the communities; responsibilities between the Federal
direct costs of processing FOI requests. (2) Create a serious inconsistency or government and Indian tribes.’’
EPA’s proposed fees are nominal and otherwise interfere with an action taken This final rule does not have tribal
have been calculated to recover only the or planned by another agency; implications. It will not have substantial
direct costs of processing a FOI request. (3) Materially alter the budgetary direct effects on tribal governments, on
The revision to the fee schedule is impact of entitlements, grants, user fees, the relationship between the Federal
minimal and reflects a more specific or loan programs or the rights and government and Indian tribes, or on the
breakdown of direct costs by the kind of obligations of recipients thereof; or distribution of power and
EPA employee involved in processing a (4) Raise novel legal or policy issues responsibilities between the Federal
FOI request. Therefore, under 5 U.S.C. arising out of legal mandates, the government and Indian tribes, as
605(b), I certify that this final rule will President’s priorities, or the principles specified in Executive Order 13175.
not have a significant economic impact set forth in the Executive Order.
EPA has determined that this final H. Unfunded Mandates Reform Act of
on a substantial number of small 1995
entities. rule is not a ‘‘significant regulatory
action’’ under the terms of Executive Under section 202 of the Unfunded
B. Congressional Review Act Order 12866 and therefore is not subject Mandates Reform Act of 1995 (UMRA),
The Congressional Review Act, 5 to OMB review. Public Law 104–4, EPA must prepare a
U.S.C. 801 et seq., as added by the Small budgetary impact statement to
F. Executive Order 13132 on Federalism
Business Regulatory Enforcement accompany any general notice of
Fairness Act of 1996, generally provides Executive Order 13132, entitled proposed rulemaking or final rule that
that before a rule may take effect, the ‘‘Federalism’’ (64 FR 43255, August 10, includes a federal mandate which may
agency promulgating the rule must 1999), requires EPA to develop an result in estimated costs to State, local,
submit a rule report, which includes a accountable process to ensure or tribal governments in the aggregate,
copy of the rule, to each House of the ‘‘meaningful and timely input by State or to the private sector, of $100 million
Congress and to the Comptroller General and local officials in the development of or more. Under section 205, for any rule
of the United States. EPA will submit a regulatory policies that have federalism subject to section 202, EPA generally
report containing this rule and other implications.’’ ‘‘Policies that have must select the least costly, most cost-
required information to the U.S. Senate, federalism implications’’ is defined in effective, or least burdensome
the U.S. House of Representatives, and the Executive Order to include alternative that achieves the objectives
the Comptroller General of the United regulations that have ‘‘substantial direct of the rule and is consistent with
States prior to publication of the rule in effects on the States, on the relationship statutory requirements. Under section
the Federal Register. A major rule between the national government and 203, before establishing any regulatory
cannot take effect until 60 days after it the States, or on the distribution of requirements that may significantly or
is published in the Federal Register. power and responsibilities among the uniquely affect small governments, EPA
This is not a ‘‘major rule’’ as defined by various levels of government.’’ must take steps to inform and advise
5 U.S.C. 804(2). This rule will be This final rule does not have small governments of the requirements
effective November 5, 2002. federalism implications. It will not have and enable them to provide input.
substantial direct effects on the States, EPA has determined that this final
C. Paperwork Reduction Act on the relationship between the national rule does not include a federal mandate
This final rule does not impose any government and the States, or on the as defined in UMRA. This final rule
reporting or recordkeeping requirements distribution of power and does not include a federal mandate that
under the Paperwork Reduction Act, 44 responsibilities among the various may result in estimated annual costs to
U.S.C. 3501 et seq. It pertains solely to levels of government, as specified in State, local or tribal governments in the
the dissemination of information under Executive Order 13132. This final rule aggregate, or to the private sector, of
the FOIA. simply revises EPA’s regulations $100 million or more, and does not

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establish regulatory requirements that likely to have any adverse energy Subpart A—Procedures for Disclosure
may significantly or uniquely affect effects. of Records Under the Freedom of
small governments. Information Act
List of Subjects in 40 CFR Part 2
I. Executive Order 13045 § 2.100 General provisions.
Environmental protection,
Executive Order 13045: ‘‘Protection of (a) This subpart contains the rules
Administrative practice and procedure,
Children from Environmental Health that the Environmental Protection
Confidential business information,
Risks and Safety Risks’’ (62 FR 19885, Agency (EPA or Agency) follows in
Freedom of information, Government
April 23, 1997) applies to any rule that: processing requests for records under
employees.
(1) Is determined to be ‘‘economically the Freedom of Information Act (FOIA),
significant’’ as defined under Executive Dated: October 30, 2002. 5 U.S.C. 552. The Agency also has rules
Order 12866, and (2) concerns an Christie Whitman, that it follows in processing Freedom of
environmental health or safety risk that Administrator, Environmental Protection Information (FOI) requests for records
EPA has reason to believe may have a Agency. submitted to it as Confidential Business
disproportionate effect on children. If Information (CBI). Such records are
For the reasons set out in the
the regulatory action meets both criteria, covered in subpart B of this part.
preamble, 40 CFR part 2 is amended as
the Agency must evaluate the Requests made by individuals for
follows:
environmental health or safety effects of records about themselves under the
the planned rule on children, and PART 2—PUBLIC INFORMATION Privacy Act of 1974 which are processed
explain why the planned regulation is under 40 CFR part 16, will also be
preferable to other potentially effective treated as FOIA requests under this
1. The authority citation for part 2
and reasonably feasible alternatives subpart. This ensures that the requestor
continues to read as follows:
considered by the Agency. has access to all responsive records.
This rule is not subject to Executive Authority: 5 U.S.C. 301, 552 (as amended) Information routinely provided to the
Order 13045 because it is not an and 553; secs. 114, 205, 208, 301, and 307, public as part of a regular EPA activity
economically significant regulatory Clean Air Act, as amended (42 U.S.C. 7414, may be provided to the public without
7525, 7542, 7601, 7607); secs. 308, 501 and following this subpart.
action as defined under Executive Order
509(a), Clean Water Act, as amended (33 (b) When documents responsive to a
12866.
U.S.C. 1318, 1361, 1369(a)); sec. 13, Noise request are maintained for distribution
J. National Technology Transfer and Control Act of 1972 (42 U.S.C. 4912); secs. by agencies operating statutory-based
Advancement Act of 1995 1445 and 1450, Safe Drinking Water Act (42 fee schedule programs, such as, but not
U.S.C. 300j–4, 300j–9); secs. 2002, 3007, and limited to, the Government Printing
Section 12(d) of the National
9005, Solid Waste Disposal Act, as amended Office or the National Technical
Technology Transfer and Advancement (42 U.S.C. 6912, 6927, 6995); secs. 8(c), 11,
Act of 1995 (NTTAA), Public Law 104– Information Service, EPA will inform
and 14, Toxic Substances Control Act (15 the requester of the steps necessary to
113, section 12(d) (15 U.S.C. 272 note), U.S.C. 2607(c), 2610, 2613); secs. 10, 12, and
directs EPA to use voluntary consensus obtain records from these sources.
25, Federal Insecticide, Fungicide, and
standards in its regulatory activities Rodenticide Act, as amended (7 U.S.C. 136h, § 2.101 Where requests for records are to
unless to do so would be inconsistent 136j, 136w); sec. 408(f), Federal Food, Drug be filed.
with applicable law or otherwise and Cosmetic Act, as amended (21 U.S.C. (a) You may request records by
impractical. Voluntary consensus 346(f)); secs. 104(f) and 108, Marine writing to the Records, FOIA, and
standards are technical standards (e.g., Protection Research and Sanctuaries Act of Privacy Branch, Office of Environmental
materials specifications, test methods, 1972 (33 U.S.C. 1414(f), 1418); secs. 104 and Information, Environmental Protection
sampling procedures, and business 115, Comprehensive Environmental Agency, 1200 Pennsylvania Avenue
practices) that are developed or adopted Response, Compensation, and Liability Act of (2822T), NW, Washington, DC 20460; e-
by voluntary consensus standards 1980, as amended (42 U.S.C. 9604 and 9615); mail: hq.foia@epa.gov. You may also
bodies. The NTTAA directs EPA to sec. 505, Motor Vehicle Information and Cost access EPA Headquarters and Regional
provide Congress, through OMB, Savings Act, as amended (15 U.S.C. 2005). Freedom of Information Offices’ Web
explanations when EPA decides not to sites at http://www.epa.gov/foia and
use available and applicable voluntary 2. Part 2, subpart A, is revised to read submit a request via an online form. If
consensus standards. as follows: you believe the records sought may be
This final rule does not involve any located in an EPA regional office, you
technical standards, and EPA is not PART 2—PUBLIC INFORMATION
should send your request to the
considering the use of any voluntary appropriate regional FOI Officer as
Subpart A—Procedures for Disclosure
consensus standards. Accordingly, this indicated in the following list:
of Records Under the Freedom of
final rule is not subject to the (1) Region I (CT, ME, MA, NH, RI,
Information Act
requirements of the NTTAA. VT): EPA, FOI Officer, One Congress
K. Executive Order 13211 (Energy Sec. Street, Suite 1100, Boston, MA 02114–
Effects) 2.100 General provisions. 2023; e-mail: r1foia@epa.gov.
2.101 Where requests for records are to be (2) Region II (NJ, NY, PR, VI): EPA,
This rule is not a ‘‘significant energy filed. FOI Officer, 290 Broadway, 26th Floor,
action’’ as defined in Executive Order 2.102 Procedures for making requests. New York, NY 10007–1866; e-mail:
13211, ‘‘Actions Concerning Regulations 2.103 Responsibility for responding to r2foia@epa.gov.
That Significantly Affect Energy Supply, requests. (3) Region III (DE, DC, MD, PA, VA,
Distribution, or Use’’ (66 FR 28355 (May 2.104 Responses to requests and appeals. WV): EPA, FOI Officer, 1650 Arch
22, 2001)) because it is not likely to 2.105 Exemption categories. Street, Philadelphia, PA 19103–2029; e-
have a significant adverse effect on the 2.106 Preservation of records. mail: r3foia@epa.gov.
supply, distribution, or use of energy. 2.107 Fees. (4) Region IV (AL, FL, GA, KY, MS,
EPA has concluded that this rule is not 2.108 Other rights and services. NC, SC, TN): EPA, Freedom of

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Information Officer, Sam Nunn Atlanta instances when you cannot determine waiver of fees. The EPA office
Federal Center, 61 Forsyth Street, SW., where to send your request, you may responsible for responding to your
Atlanta, GA 30303–8960; e-mail: send it to the Records, FOIA, and request ordinarily will confirm this
r4foia@epa.gov. Privacy Branch, Office of Environmental agreement in writing. When making a
(5) Region V (IL, IN, MI, MN, OH, WI): Information, Environmental Protection request, you may specify a willingness
EPA. Freedom of Information Officer, 77 Agency, 1200 Pennsylvania Avenue, to pay a greater or lesser amount.
West Jackson Boulevard, Chicago, IL NW., Washington, DC 20460; e-mail: Should it be necessary for you to
60604–3507; e-mail: r5foia@epa.gov. hq.foia@epa.gov. That office will provide a written agreement to pay
(6) Region VI (AR, LA, NM, OK, TX): forward your request to the regional FOI additional fees, the time necessary to do
EPA, Freedom of Information Officer, Office it believes most likely to have the so will be excluded from the statutory
1445 Ross Avenue, Dallas, TX 75202– records that you want. Your request will 20 working day period (or any
2733; e-mail: r6foia@epa.gov. be considered received as of the date it authorized extension of time).
(7) Region VII (IA, KS, MO, NE): EPA, is received by the correct FOI Office.
Freedom of Information Officer, 901 Misdirected requests will not be § 2.103 Responsibility for responding to
North Fifth Street, Kansas City, KS considered received by EPA until the requests.
66101; e-mail: r7foia@epa.gov. appropriate FOI Office receives the (a) In general. Except as stated in
(8) Region VIII (CO, MT, ND, SD, UT, request. For proper handling, you paragraphs (c), (d), (e), and (f) of this
WY): EPA, Freedom of Information should mark both your request letter section, the EPA office that has
Officer, 999 18th Street, Suite 500, and its envelope or e-mail subject line possession of that record is the office
Denver, CO 80202–2466, e-mail: ‘‘Freedom of Information Act Request.’’ responsible for responding to you. In
r8foia@epa.gov. You should also include your name, determining which records are within
(9) Region IX (AZ, CA, HI, NV, AS, mailing address, and daytime telephone the scope of a request, an office will
GU): EPA, Freedom of Information number in the event we need to contact ordinarily include only those records in
Officer, 75 Hawthorne Street, San you. its possession as of the date the request
Francisco, CA 94105; e-mail: (b) EPA employees may attempt in was received in the Headquarters or
r9foia@epa.gov. good faith to comply with oral requests Regional FOI Office. If any other date is
(10) Region X (AK, ID, OR, WA): EPA, for inspection or disclosure of EPA used, the office will inform you of that
Freedom of Information Officer, 1200 records publicly available under date.
Sixth Avenue, Seattle, WA 98101; e- § 2.201(a)–(b) , but such requests are not (b) Authority to grant or deny
mail: r10foia@epa.gov. subject to the FOIA or the regulations in requests. The head of an office, or that
(b) EPA provides access to all records this part. individual’s designee, is authorized to
that the FOIA requires an agency to (c) Description of records sought. grant or deny any request for a record
make regularly available for public Your request should reasonably describe of that office or other Agency records
inspection and copying. Each office is the records you are seeking in a way when appropriate.
responsible for determining which of that will permit EPA employees to (c) Authority to grant or deny fee
the records it generates are required to identify and locate them. Whenever waivers or requests for expedited
be made publicly available and for possible, your request should include treatment. The head of the Headquarters
providing access by the public to them. specific information about each record FOIA Office and Regional FOI Officers,
The Agency will also maintain and sought, such as the date, title or name, or their designees, are authorized to
make available for public inspection author, recipient, and subject matter. If grant or deny fee waivers or requests for
and copying a current subject-matter known, you should include any file
expedited treatment.
index of such records and provide a designations or descriptions for the
(d) Consultations and referrals. When
copy or a link to the respective Web site records that you want. The more
specific you are about the records or a request to EPA seeks records in its
for Headquarters or the Regions. Each
type of records that you want, the more possession that originated with another
index will be updated regularly, at least
likely EPA will be able to identify and Federal agency, the EPA office receiving
quarterly, with respect to newly-
locate records responsive to your the request shall either:
included records.
(c) All records created by EPA on or request. If EPA determines that your (1) Consult with the Federal agency
after November 1, 1996, which the FOIA request does not reasonably describe the where the record or portion thereof
requires an agency to make regularly records, it will tell you either what originated and then respond to your
available for public inspection and additional information you need to request, or
copying, will be made available provide or why your request is (2) Direct the FOI Office to refer your
electronically through EPA’s worldwide otherwise insufficient. EPA will also request to the Federal agency where the
Web site, located at http://www.epa.gov, give you an opportunity to discuss and record or portion thereof originated.
or, upon request, through other modify your request to meet the Whenever all or any part of the
electronic means. EPA will also include requirements of this section. Should it responsibility for responding to a
on its worldwide Web site the current be necessary for you to provide a request has been referred to another
subject-matter index of all such records. revised description of the records you agency, the FOI Office will notify you
are seeking, the time necessary to do so accordingly.
§ 2.102 Procedures for making requests. will be excluded from the statutory 20 (e) Law enforcement information.
(a) How made and addressed. You working day period (or any authorized Whenever a request is made for a record
may make a request for EPA records that extension of time) that EPA has to containing information that relates to an
are not publicly available under respond to your request as discussed in investigation of a possible violation of
§ 2.201(a)–(b) by writing directly to the § 2.104. law and was originated by another
appropriate FOI Officer, as listed in (d) Agreement to pay fees. If you make agency, the receiving office will either
§ 2.101(a). Only written requests for a FOIA request, EPA will consider your direct the FOI Office to refer the request
records will be accepted for processing request to be an agreement that you will to that other agency or consult with that
under this subpart. For records located pay all applicable fees charged under other agency prior to making any release
at EPA Headquarters, or in those § 2.107, up to $25.00, unless you seek a determination.

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§ 2.104 Responses to requests and (i) Circumstances in which the lack of does not exist or cannot be located; a
appeals. expedited treatment could reasonably be determination that what has been
(a) Unless the Agency and the expected to pose an imminent threat to requested is not a record subject to the
requester have agreed otherwise, or the life or physical safety of an FOIA; a determination on any disputed
when unusual circumstances exist as individual; or fee matter, including a denial of a
provided in paragraph (e) of this (ii) An urgency to inform the public request for a fee waiver; or a denial of
section, EPA offices will respond to about an actual or alleged Federal a request for expedited treatment.
requests no later than 20 working days government activity, if the information (h) Initial denials of requests. The
from the date the request is received and is requested by a person primarily Deputy Administrator, Assistant
logged in by the appropriate FOI Office. engaged in disseminating information to Administrators, Regional
EPA will ordinarily respond to requests the public. Administrators, the General Counsel,
in the order in which they were (2) A request for expedited processing the Inspector General, Associate
received. If EPA fails to respond to your must be made at the time of the initial Administrators, and heads of
request within the 20 working day request for records or at the time of headquarters staff offices are delegated
period, or any authorized extension of appeal. the authority to issue initial
time, you may seek judicial review to (3) If you are seeking expedited determinations. However, the authority
obtain the records without first making processing, you must submit a to issue initial denials of requests for
an administrative appeal. statement, certified to be true and existing, located records (other than
(b) On receipt of a request, the FOI correct to the best of your knowledge initial denials based solely on
Office ordinarily will send a written and belief, explaining in detail the basis § 2.204(d)(1)) may be redelegated only to
acknowledgment advising you of the for the request. For example, if you fit persons occupying positions not lower
date it was received and of the within the category described in than division director or equivalent.
processing number assigned to the paragraph (e)(1)(ii) of this section and Each letter will include:
request for future reference. are not a full-time member of the news (1) The name and title or position of
(c) Multitrack processing. The Agency media, you must establish that you are the person responsible for the denial;
uses three or more processing tracks by a person whose primary professional (2) A brief statement of the reason(s)
distinguishing between simple and activity or occupation is information for the denial, including an
complex requests based on the amount dissemination, although it need not be identification of records being withheld
of work and/or time needed to process your sole occupation. If you fit within (individual, or if a large number of
the request, including limits based on the category described in paragraph similar records are being denied, by
the number of pages involved. The (e)(1)(ii) of this section, you must also described category), and any FOIA
Agency will advise you of the establish a particular urgency to inform exemption applied by the office in
processing track in which your request the public about the government activity denying the request;
has been placed and of the limits of the involved in the request, beyond the (3) An estimate of the volume of
different processing tracks. The Agency public’s right to know about government records or information withheld, in
may place your request in its slower activity generally. number of pages or in some other
track(s) while providing you the (4) Within 10 calendar days from the reasonable form of estimation. This
opportunity to limit the scope of your date of your request for expedited estimate does not need to be provided
request in order to qualify for faster processing, the head of the Headquarters if the volume is otherwise indicated
processing within the specified limits of FOI Staff or Regional FOI Officer will through annotated deletions on records
the faster track(s). If your request is decide whether to grant your request disclosed in part, or if providing an
placed in a slower track, the Agency and will notify you of the decision. If estimate would harm an interest
will contact you either by telephone or your request for expedited treatment is protected by an applicable exemption;
by letter, whichever is most efficient in granted, the request will be given and
each case. priority and will be processed as soon (4) A statement that the denial may be
(d) Unusual circumstances. When the as practicable. If your request for appealed under, and a description of the
statutory time limits for processing a expedited processing is denied, any requirements of, paragraph (j) of this
request cannot be met because of appeal of that decision will be acted on section.
‘‘unusual circumstances,’’ as defined in expeditiously. (i) Denial of fee waiver. The letter
the FOIA, and the time limits are (f) Grants of requests. Once an office denying a request for a fee waiver or
extended on that basis, you will be makes a determination to grant a request expedited treatment will be signed by
notified in writing, as soon as in whole or in part, it will release the the head of the Headquarters FOI Staff
practicable, of the unusual records or parts of records to you and or Regional FOI Officers.
circumstances and of the date by which notify you of any applicable fee charged (j) Appeals of adverse determinations.
processing of the request should be under § 2.107. Records released in part If you are dissatisfied with any adverse
completed. When the extension is for will be annotated, whenever technically determination of your request by an
more than 10 working days, the Agency feasible, with the applicable FOIA office, you may appeal that
will provide you with an opportunity exemption(s) at that part of the record determination to the Headquarters
either to modify the request so that it from which the exempt information was Freedom of Information Staff, Records,
may be processed within the 10 working deleted. Privacy and FOIA Branch, Office of
day time limit extension or to arrange an (g) Adverse determinations of Information Collection, Office of
alternative time period for processing requests. Once the Agency makes an Environmental Information,
the original or modified request. adverse determination of a request, the Environmental Protection Agency, 1200
(e) Expedited processing. (1) Requests requestor will be notified of that Pennsylvania Avenue (2822T), NW.,
or appeals will be taken out of order and determination in writing. An adverse Washington, DC 20460; e-mail:
given expedited treatment whenever determination consists of a hq.foia@epa.gov. The appeal must be
EPA determines that such requests or determination to withhold any made in writing, and it must be
appeals involve a compelling need, as requested record in whole or in part; a submitted to the Headquarters FOI Staff
follows: determination that a requested record no later than 30 calendar days from the

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date of the letter denying the request. § 2.105 Exemption categories. disclosure could reasonably be expected
The Agency will not consider appeals (a) The FOIA, 5 U.S.C. 552(b), to risk circumvention of the law; or
received after the 30-day limit. The establishes the following nine categories (vi) Could reasonably be expected to
appeal letter may include as much or as of information which are exempt from endanger the life or physical safety or
little related information as you wish, as the mandatory disclosure requirements any individual;
long as it clearly identifies the of 5 U.S.C. 552(a): (8) Contained in or related to
determination being appealed (1)(i) Specifically authorized under examination, operating, or condition
(including the assigned FOIA request criteria established by an Executive reports prepared by, on behalf of, or for
number, if known). For quickest Order to be kept secret in the interest of the use of an agency responsible for the
possible handling, the appeal letter and national defense or foreign policy; and regulation or supervision of financial
its envelope should be marked (ii) Are in fact properly classified institutions; or
‘‘Freedom of Information Act Appeal.’’ pursuant to such Executive order; (9) Geological and geophysical
Unless the Administrator directs (2) Related solely to the internal information and data, including maps,
otherwise, the General Counsel or his/ personnel rules and practices of an concerning wells.
her designee will act on behalf of the agency;
(3) Specifically exempted from § 2.106 Preservation of records.
Administrator on all appeals under this
section, except that: disclosure by statute (other than 5 Each FOI Officer shall preserve all
(1) In the case of an adverse initial U.S.C. 552(b)), provided that such correspondence pertaining to the FOIA
determination by the General Counsel or statute: requests that it receives until
his/her designee, the Administrator or (i) Requires that the matters be disposition or destruction is authorized
his/her designee will act on the appeal; withheld from the public in such a by title 44 of the United States Code or
(2) The Counsel to the Inspector manner as to leave no discretion on the the National Archives and Records
General will act on any appeal where issue; or Administration’s General Records
the Inspector General or his/her (ii) Establishes particular criteria for Schedule 14. Copies of all responsive
designee has made the initial adverse withholding information or refers to records should be maintained by the
determination; however, if the Counsel particular types of information to be appropriate program office. Records
to the Inspector General has signed the withheld; shall not be disposed of while they are
initial adverse determination, the (4) Trade secrets and commercial or the subject of a pending request, appeal,
General Counsel or his/her designee financial information obtained from a or lawsuit under the FOIA.
will act on the appeal; person and privileged or confidential;
(3) An adverse determination by the (5) Inter-agency or intra-agency § 2.107 Fees.
Administrator on an initial request will memoranda or letters which would not (a) In general. The Agency will charge
serve as the final action of the Agency; be available by law to a party other than for processing requests under the FOIA
and an agency in litigation with the affected in accordance with paragraph (c) of this
(4) If a requester seeks judicial review agency; section, except where fees are limited
because the Agency has not responded (6) Personnel and medical files and under paragraph (d) of this section or
in a timely manner, any further action similar files the disclosure of which where a waiver or reduction of fees is
on an appeal will take place through the would constitute a clearly unwarranted granted under paragraph (l) of this
lawsuit. invasion of personal privacy; section. Requesters will pay fees by
(k) The decision on your appeal will (7) Records or information compiled check or money order made payable to
be made in writing, normally within 20 for law enforcement purposes, but only the U.S. Environmental Protection
working days of its receipt by the to the extent that the production of such Agency.
Headquarters Freedom of Information law enforcement records or information: (b) Definitions. For purposes of this
Staff. A decision affirming an adverse (i) Could reasonably be expected to section:
determination in whole or in part will interfere with enforcement proceedings; (1) Commercial use request means a
contain a statement of the reason(s) for (ii) Would deprive a person of a right request from or on behalf of a person
the decision, including any FOIA to a fair trial or an impartial who seeks information for a use or
exemption(s) applied, and inform you of adjudication; purpose that furthers his/her
the FOIA provisions for judicial review (iii) Could reasonably be expected to commercial, trade, or profit interests,
of the decision. If the adverse constitute an unwarranted invasion of which can include furthering those
determination is reversed or modified personal privacy; interests through litigation. FOI Officers
on appeal, you will be notified in a (iv) Could reasonably be expected to will determine, whenever reasonably
written decision. This written decision disclose the identity of a confidential possible, the use to which a requester
will either have the requested source, including a State, local, or will put the requested records. When it
information that has been determined foreign agency or authority or any appears that the requester will put the
on appeal to be releasable attached to it, private institution which furnished records to a commercial use, either
or your request will be returned to the information on a confidential basis, and, because of the nature of the request
appropriate office so that it may be in the case of a record or information itself or because an office has reasonable
reprocessed in accordance with the compiled by a criminal law enforcement cause to doubt a requester’s stated use,
appeal decision. authority in the course of a criminal the FOI Officer will provide the
(l) If you wish to seek judicial review investigation, or by an agency requester a reasonable opportunity to
of any adverse determination, you must conducting a lawful national security submit further clarification.
first appeal that adverse determination intelligence investigation, information (2) Direct costs means those expenses
under this section, except when EPA furnished by a confidential source; that the Agency actually incurs in
has not responded to your request (v) Would disclose techniques and searching for and duplicating (and, in
within the statutory 20 working day procedures for law enforcement the case of commercial use requests,
time limit. In such cases, you may seek investigations or prosecutions, or would reviewing) records to respond to a FOIA
judicial review without making an disclose guidelines for law enforcement request. Direct costs include, for
administrative appeal. investigations or prosecutions if such example, the salary of the employee

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performing the work and the cost of publication contract would be the media, and whose purpose in seeking
operating duplication equipment. Not clearest proof, but FOI Officers will also records is noncommercial, will be
included in direct costs are overhead look to the past publication record of a charged only for the cost of duplication,
expenses such as the costs of space and requester in making this determination. except that the first 100 pages of
heating or lighting of the facility in To be in this category, a requester must duplication will be furnished at no
which the records are kept. not be seeking the requested records for charge.
(3) Duplication means the making of a commercial use. A request for records (iv) All other requests. Requesters not
a copy of a record, or of the information supporting the news-dissemination covered by one of the three categories
contained in it, necessary to respond to function of the requester will not be above will be charged for the full cost
a FOIA request. Copies can take the considered to be for a commercial use. of search and duplication, except that
form of paper, microform, audiovisual (7) Review means the examination of the first two hours of search time and
materials, or electronic records (for a record located in response to a request the first 100 pages of duplication will be
example, magnetic tape, disk, or in order to determine whether any furnished without charge. The charges
compact disk), among others. The portion of it is exempt from disclosure. for searching for the records will be
Agency will honor a requester’s It also includes processing any record assessed even if no responsive records
specified preference of form or format of for disclosure (for example, doing all are found or if the records are located
disclosure if the record is readily that is necessary to redact it and prepare but are determined to be exempt from
reproducible with reasonable efforts in it for disclosure). Review costs are disclosure.
the requested form or format. recoverable even if a record ultimately (2) In responding to FOIA requests,
(4) Educational institution means a is not disclosed. Review time includes the Agency will charge the following
preschool, a public or private time spent considering any formal fees unless a waiver or reduction of fees
elementary or secondary school, an objection to disclosure made by a has been granted under paragraph (l) of
institution of undergraduate higher business submitter requesting this section:
education, an institution of graduate confidential treatment, but does not (i) Search. (A) Search fees will be
higher education, an institution of include time spent resolving general charged for all requests except for those
professional education, or an institution legal or policy issues regarding the made by educational institutions,
of vocational education, that operates a application of exemptions. noncommercial scientific institutions,
program of scholarly research. To be in (8) Search means the process of or representatives of the news media
this category, a requester must show looking for and retrieving records or subject to the limitations of paragraph
that the request is authorized by, and is information responsive to a request. It (d) of this section. Offices will charge
made under the auspices of, a qualifying includes page-by-page or line-by-line for time spent searching even if no
institution and that the records are not identification of information within responsive records are found or if the
sought for a commercial use but are records and also includes reasonable records are located but are determined
sought to further scholarly research. efforts to locate and retrieve information to be exempt from disclosure.
(5) Noncommercial scientific from records maintained in electronic (B) For searches and retrievals of
institution means an institution that is form or format. Offices will ensure that requested records, either manually or
not operated on a ‘‘commercial’’ basis, searches are done in the most efficient electronically, conducted by clerical
as that term is defined in paragraph and least expensive manner reasonably personnel, the fee will be $4.00 for each
(b)(1) of this section, and that is possible. For example, offices will not quarter hour of time. For searches and
operated solely for the purpose of search line-by-line where duplicating an retrievals of requested records, either
conducting scientific research which is entire document would be quicker and manually or electronically, requiring the
not intended to promote any particular less expensive. use of professional personnel, the fee
product or industry. To be in this (c) Fees to be charged. (1) There are will be $7.00 for each quarter hour of
category, a requester must show that the four categories of requests. Fees for each time. For searches and retrievals of
request is authorized by, and is made of these categories will be charged as requested records, either manually or
under the auspices of, a qualifying follows: electronically, requiring the use of
institution and that the records are not (i) Commercial use requests. A managerial personnel, the fee will be
sought for a commercial use but are requester seeking access to records for a $10.25 for each quarter hour of time.
sought to further scientific research. commercial use will be charged for the (C) When searches and retrievals are
(6) Representative of the news media time spent searching for the records, conducted by contractors, requesters
or news media requester means any reviewing the records for possible will be charged for the actual charges up
person actively gathering news for an disclosure, and for the cost of each page to but not exceeding the rate which
entity that is organized and operated to of duplication. The charges for would have been charged had EPA
publish or broadcast news to the public. searching for and/or reviewing the employees conducted the search. The
The term ‘‘news’’ means information records may be charged even if no costs of actual computer resource usage
that is about current events or that responsive records are found or if the in connection with such searches will
would be of current interest to the records are located but are determined also be charged, to the extent they can
public. Examples of news media include to be exempt from disclosure. be determined.
television or radio stations broadcasting (ii) Educational or non-commercial (ii) Duplication. Duplication fees will
to the public at large and publishers of scientific requests. Requesters from be charged to all requesters, subject to
periodicals (but only in those instances educational or scientific institutions, the limitations of paragraph (d) of this
where they can qualify as disseminators whose purpose is scholarly, section. For either a photocopy or a
of ‘‘news’’) who make their products noncommercial research, will be computer-generated printout of a record
available for purchase or subscription charged only for the cost of record (no more than one copy of which need
by the general public. For ‘‘freelance’’ duplication, except that the first 100 be supplied), the fee will be fifteen (15)
journalists to be regarded as working for pages of duplication will be furnished at cents per page. For electronic forms of
a news organization, they must no charge. duplication, other than a computer-
demonstrate a solid basis for expecting (iii) News media requests. Requesters generated printout, offices will charge
publication through that organization. A who are representatives of the news the direct costs of that duplication. Such

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direct costs will include the costs of the Agency will advise the requester that requests involving unrelated matters
requested electronic medium on which the estimated fee may be only a portion will not be aggregated.
the copy is to be made and the actual of the total fee. When a requester has (j) Advance payments. (1) For requests
operator time and computer resource been notified that actual or estimated other than those described in
usage required to produce the copy, to fees will amount to more than $25.00, paragraphs (j)(2) and (3) of this section,
the extent they can be determined. EPA will do no further work on the an office will not require the requester
(iii) Review. Review fees will be request until the requester agrees to pay to make an advance payment (that is, a
charged only to requesters who make a the anticipated total fee. This time will payment made before EPA begins or
commercial use request. Review fees be excluded from the twenty (20) continues work on a request). Payment
will be charged only for the initial working day time limit. EPA will owed for work already completed (that
record review (that is, the review done memorialize any such agreement in is, a prepayment before copies are sent
when an office is deciding whether an writing. A notice under this paragraph to a requester) is not an advance
exemption applies to a particular record will offer the requester an opportunity payment.
or portion of a record at the initial to discuss the matter with Agency (2) When the Agency determines or
request level). No charge will be made personnel in order to reformulate the estimates that a total fee to be charged
for review at the administrative appeal request to meet the requester’s needs at under this section will be more than
level for an exemption already applied. a lower cost. $250.00, it may require the requester to
However, records or portions of records (f) Charges for other services. Apart make an advance payment of an amount
withheld under an exemption that is from the other provisions of this section, up to the amount of the entire
subsequently determined not to apply when an office chooses as a matter of anticipated fee before beginning to
may be reviewed again to determine administrative discretion to provide a process the request, except when it
whether any other exemption not special service-such as certifying that receives a satisfactory assurance of full
previously considered applies; the costs records are true copies or sending payment from a requester that has a
of that review will be charged when it records by other than ordinary mail-the history of prompt payment.
is made necessary by a change of direct costs of providing the service (3) When a requester has previously
circumstances. Review fees will be ordinarily will be charged. failed to pay a properly charged FOIA
charged at the same rates as those (g) Charging interest. EPA may charge
fee to the Agency within 30 calendar
charged for a search under paragraph interest on any unpaid bill starting on
days of the date of billing, the Agency
(c)(1)(i) of this section. the 31st day following the date of billing
may require the requester to pay the full
(d) Limitations on charging fees. (1) the requester. Interest charges will be
amount due, plus any applicable
No search or review fees will be charged assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the interest, and to make an advance
for requests by educational institutions, payment of the full amount of any
noncommercial scientific institutions, date of the billing until payment is
received by the Agency. EPA will follow anticipated fee, before the Agency
or representatives of the news media. begins to process a new request or
(2) No search fee or review fee will be the provisions of the Debt Collection
Act of 1982 (Pub. L. 97–365), as continues to process a pending request
charged for a quarter-hour period unless from that requester.
more than half of that period is required amended, and its administrative
procedures, including the use of (4) When the Agency requires
for search or review.
consumer reporting agencies, collection advance payment or payment due under
(3) Except for requesters seeking
agencies, and offset. No penalty will be paragraph (j)(3) of this section, the
records for a commercial use, offices
assessed against FOIA requesters for request will not be considered, and EPA
will provide without charge:
(i) The first 100 pages of duplication, exercising their statutory right to ask will do no further work on the request
and that a fee be waived or reduced or to until the required payment is made.
(ii) The first two hours of search. dispute a billing. If a fee is in dispute, (k) Other statutes specifically
(4) Whenever a total fee calculated penalties will be suspended upon providing for fees. The fee schedule of
under paragraph (c) of this section is notification. this section does not apply to fees
$14.00 or less for any request, no fee (h) Delinquent requesters. If charged under any other statute that
will be charged. requesters fail to pay all fees within 60 specifically requires an agency to set
(5) The provisions of paragraphs (d)(3) calendar days of the fees assessment, and collect fees for particular types of
and (4) of this section work together. they will be placed on a delinquency records. When records responsive to
This means that for requesters other list. Subsequent FOIA requests will not requests are maintained for distribution
than those seeking records for a be processed until payment of the by agencies operating such statutorily
commercial use, no fee will be charged overdue fees has first been made. based fee schedule programs, EPA will
unless the cost of search in excess of (i) Aggregating requests. When the inform requesters of the steps for
two hours plus the cost of duplication Agency reasonably believes that a obtaining records from those sources so
in excess of 100 pages totals more than requester or a group of requesters acting that they may do so most economically.
$14.00. together is attempting to divide a (l) Waiver or reduction of fees. (1)
(e) Notice of anticipated fees in excess request into a series of requests for the Records responsive to a request will be
of $25.00. When the Agency determines purpose of avoiding fees, the Agency furnished without charge or at a charge
or estimates that the fees to be charged may aggregate those requests and charge reduced below that established under
under this section will amount to more accordingly. The Agency may presume paragraph (c) of this section when a FOI
than $25.00, the Agency will notify the that multiple requests of this type made Office determines, based on all available
requester of the actual or estimated within a 30-day period have been made information, that disclosure of the
amount of the fees, unless the requester in order to avoid fees. When requests requested information is in the public
has indicated a willingness to pay fees are separated by a longer period, the interest because it is likely to contribute
as high as those anticipated. The Agency will aggregate them only if there significantly to public understanding of
amount of $25.00 is cumulative for exists a solid basis for determining that the operations or activities of the
multi-office requests. If only a portion of aggregation is warranted under all the government and is not primarily in the
the fee can be estimated readily, the circumstances involved. Multiple commercial interest of the requester.

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Federal Register / Vol. 67, No. 214 / Tuesday, November 5, 2002 / Rules and Regulations 67313

(2) To determine whether the first fee (i) The existence and magnitude of a of any record to which such person is
waiver requirement is met, FOI Offices commercial interest: Whether the not entitled under the FOIA.
will consider the following factors: requester has a commercial interest that [FR Doc. 02–28081 Filed 11–4–02; 8:45 am]
(i) The subject of the request: Whether would be furthered by the requested BILLING CODE 6560–50–P
the subject of the requested records disclosure. FOI Offices will consider
concerns ‘‘the operations or activities of any commercial interest of the requester
the government.’’ The subject of the (with reference to the definition of ENVIRONMENTAL PROTECTION
requested records must concern ‘‘commercial use request’’ in paragraph AGENCY
identifiable operations or activities of (b)(1) of this section), or of any person
the Federal government, with a on whose behalf the requester may be 40 CFR Part 52
connection that is direct and clear, not acting, that would be furthered by the [CA242–0373a; FRL–7395–8]
remote. requested disclosure. Requesters will be
(ii) The informative value of the given an opportunity in the Revisions to the California State
information to be disclosed: Whether administrative process to provide Implementation Plan, Imperial County
the disclosure is ‘‘likely to contribute’’ explanatory information regarding this Air Pollution Control District
to an understanding of government consideration.
AGENCY: Environmental Protection
operations or activities. The disclosable (ii) The primary interest in disclosure:
portions of the requested records must Agency (EPA).
Whether any identified commercial
be meaningfully informative about ACTION: Direct final rule.
interest of the requester is sufficiently
government operations or activities in large, in comparison with the public SUMMARY: EPA is taking direct final
order to be ‘‘likely to contribute’’ to an interest in disclosure, that disclosure is action to approve revisions to the
increased public understanding of those ‘‘primarily in the commercial interest of Imperial County Air Pollution Control
operations or activities. The disclosure the requester.’’ A fee waiver or District’s (ICAPCD) portion of the
of information that already is in the reduction is justified where the public California State Implementation Plan
public domain, in either a duplicative or interest standard is satisfied and that (SIP). These revisions concern volatile
a substantially identical form, would public interest is greater in magnitude organic compound (VOC) emissions
not be as likely to contribute to such than that of any identified commercial from Soil Decontamination Operations,
understanding when nothing new interest in disclosure. FOI Offices Organic Solvent Degreasing Operations,
would be added to the public’s ordinarily will presume that when a and Organic Solvents. We are approving
understanding. news media requester has satisfied the local rules that regulate these emission
(iii) The contribution to an public interest standard, the public sources under the Clean Air Act as
understanding of the subject by the interest will be the interest primarily amended in 1990 (CAA or the Act).
public is likely to result from disclosure: served by disclosure to that requester. DATES: This rule is effective on January
Whether disclosure of the requested Disclosure to data brokers or others who
information will contribute to ‘‘public 6, 2003 without further notice, unless
merely compile and market government EPA receives adverse comments by
understanding.’’ The disclosure must information for direct economic return
contribute to the understanding of a December 5, 2002. If we receive such
will not be presumed to primarily serve comment, we will publish a timely
reasonably broad audience of persons the public interest.
interested in the subject, as opposed to withdrawal in the Federal Register to
(4) When only some of the requested notify the public that this rule will not
the individual understanding of the records satisfy the requirements for a
requester. A requester’s expertise in the take effect.
waiver of fees, a waiver will be granted ADDRESSES: Mail comments to Andy
subject area and ability and intention to for only those records.
effectively convey information to the Steckel, Rulemaking Office Chief (AIR–
public will be considered. It will be (5) Requests for the waiver or 4), U.S. Environmental Protection
presumed that a representative of the reduction of fees must address the Agency, Region IX, 75 Hawthorne
news media will satisfy this factors listed in paragraphs (k) (l)–(3) of Street, San Francisco, CA 94105–3901.
consideration. this section, insofar as they apply to You can inspect copies of the
(iv) The significance of the each request. FOI Offices will exercise submitted SIP revisions and EPA’s
contribution to public understanding: their discretion to consider the cost- technical support documents (TSDs) at
Whether the disclosure is likely to effectiveness of their investment of our Region IX office during normal
contribute ‘‘significantly’’ to public administrative resources in deciding business hours. You may also see copies
understanding of government operations whether to grant waivers or reductions of the submitted SIP revisions at the
or activities. The public’s understanding of fees and will consult the appropriate following locations:
of the subject in question, as compared EPA offices as needed. Requests for the Air and Radiation Docket and
to the level of public understanding waiver or reduction of fees must be Information Center, U.S.
existing prior to the disclosure, must be submitted along with the request. Environmental Protection Agency,
enhanced by the disclosure to a (6) When a fee waiver request is Room B–102, 1301 Constitution
significant extent. FOI Offices will not denied, EPA will do no further work on Avenue, NW., (Mail Code 6102T),
make value judgments about whether the request until it receives an assurance Washington, DC 20460.
information that would contribute of payment or an appeal of the fee California Air Resources Board,
significantly to public understanding of waiver adverse determination is made Stationary Source Division, Rule
the operations or activities of the and a final appeal determination is Evaluation Section, 1001 ‘‘I’’ Street,
government is ‘‘important’’ enough to be made pursuant to § 2.104(j). Sacramento, CA 95814.
made public. Imperial County Air Pollution Control
§ 2.108 Other rights and services. District, 150 South 9th Street, El
(3) To determine whether the second
fee waiver requirement is met, FOI Nothing in this subpart shall be Centro, California 92243–2850
Offices will consider the following construed to entitle any person, as a A copy of the rules may also be
factors: right, to any service or to the disclosure available via the Internet at http://

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