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(c) Method of forwarding requests. Requests shall be forwarded under paragraphs (a) and (b) of this section by electronic means (facsimile machine, telephone, etc.).

§ 2.111 Action by office responsible for maintaining requested records.

(a) Whenever an EPA office becomes aware that it has been assigned the responsibility of responding to a request, or whenever such an office becomes aware that EPA has received a request for records which that office maintains or for which that office has responsibility, the office shall:

(1) Locate the records as promptly as possible, or determine that the records are not known to exist, or that they are located at another EPA office, or that they are held by another Federal agency and not by EPA;

(2) Determine which of the records (or portions of records) held by the office may not legally be released, and why;

(3) Determine whether disclosure will be made of requested records which are exempt from mandatory disclosure but which are not required by law or this part to be withheld (see §§ 2.118-2.119), and the reasons for withholding any such records;

(4) Issue an initial determination within the allowed period (see § 2.112), specifying which requested records will be withheld and which will be released (determinations to withhold requested records shall comply with § 2.113).

(b) If any requested records located under paragraph (a) of this section contain business information which is covered by a business confidentiality claim or is the type of information for which business sometimes requests confidential treatment, or is or may be required by law to be held in confidence for reasons of business confidentiality, the EPA office in possession of such records shall comply with applicable provisions of Subpart B of this part.

(c) Whenever an EPA office learns that some or all of the requested records are not in that office's possession but are or may be in the possession of some other EPA office or some other Federal agency, that office shall immediately so inform the Headquarters or regional

Freedom of Information Office which is monitoring the request.

(d) If at any time it appears to an EPA office that performance of further search work would cause fees to be incurred in excess of those which the requestor has paid or agreed to pay (or $25.00 if no fee has been agreed upon), action shall be taken to obtain or assure payment (see § 2.120), to assist in the reformulation of the request (see § 2.109), or both.

§ 2.112

Time allowed for issuance of initial determination.

(a) Except as otherwise provided in this section, not later than the tenth working day after the date of receipt by a Freedom of Information Office of a request for records, the EPA office responsible for responding to the request shall issue a written determination to the requestor stating which of the requested records will, and which will not, be released, and the reason for any denial of a request. (A written determination is not necessary if within that 10-day period all requested records are actually furnished to the requestor.)

(b) The period of 10 working days shall be measured from the date the request is first received and logged in by the Headquarters or regional Freedom of Information Office.

(c) There shall be excluded from the period of 10 working days (or any extension thereof) any time which elapses between the time that a requestor is notified by EPA that his request does not reasonably identify the records sought and the time that the requestor furnishes a reasonable identification (see § 2.109).

(d) There shall be excluded from the period of 10 working days (or any extension thereof) any time which elapses between the time that a requestor is notified by EPA that processing his request will generate chargeable fees in excess of $25.00 (or any higher dollar limit he has established as acceptable), and the time that the requestor makes suitable arrangements for payment of such charges (see § 2.120).

(e) The EPA office taking action under § 2.111, after notifying the appropriate Freedom of Information Office, may extend the basic 10-day period established

under paragraph (a) of this section by a period not to exceed 10 additional working days, by furnishing written notice to the requestor within the basic 10-day period stating the reasons for such extension and the date by which the office expects to be able to issue a determination. The period may be so extended only when absolutely necessary, only for the period required, and only when one or more of the following unusual circumstances require the extension:

(1) There is a need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(2) There is a need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(3) There is a need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of EPA.

(f) Failure of EPA to issue a determination within the 10-day period or any authorized extension shall constitute final agency action which authorizes the requestor to commence an action in an appropriate Federal district court to obtain the records.

§ 2.113 Initial denials of requests.

(a) An initial denial of a request may be issued only for the following reasons: (1) The record requested is not known to exist;

(2) The record is not in EPA's possession;

(3) The record has been published in the FEDERAL REGISTER or is otherwise published and available for sale.

(4) A statutory provision, provision of this part, or court order requires that the information not be disclosed;

(5) The record is exempt from mandatory disclosure under 5 U.S.C. 552(b) and EPA has decided as a matter of discretion not to release it;

(6) Subpart B of this part requires initial denial because a third person must be consulted in connection with a business confidentiality claim; or

(7) The record is believed to exist in EPA's possession but has not yet been located (see paragraph (h) of this section).

(b) Initial denials of requests may be issued or ordered by those EPA officers or employees occupying positions to which such authority has been delegated or redelegated.

(c) Initial determinations should normally be made by the office which is in possession of, or has responsibility for maintaining, the requested records, and only in unusual cases should it be necessary to refer the matter to higher authorities for issuance of the determination. Initial determinations to deny requests may be issued only by an officer or employee who exercises supervisory authority over the EPA office which possesses or has responsibility for maintaining the requested records.

(d) Each initial determination to deny a request shall be written, signed, and dated, and shall contain a reference to the Request Identification Number.

(e) If the determination to deny a request was directed to be issued by some EPA officer or employee other than the person signing the determination letter, that other person's identity and position shall be stated in the determination letter. If an EPA regulation (e.g., § 2.204) requires that an initial denial determination be issued upon the finding of certain facts, reference shall be made to the regulation and the determination letter shall state the name of the person who made the fact finding.

(f) Each initial determination which denies a request in whole or part shall state that the requestor may appeal the initial denial by mailing or personally delivering an appeal in writing to the address stated in § 2.114 within 30 days of receipt of the determination or within 30 days of the date the requestor last received any records in response to the request, whichever date is later.

(g) An initial determination shall be deemed to be issued at the time the determination letter is placed in EPA mailing channels for first class mailing to the requestor, is delivered to the U.S. Postal Service for mailing, or is personally delivered to the requestor, whichever first occurs.

(h) When a request must be denied because the record has not yet been located (although it is believed to exist in EPA's possession), the EPA office responsible for maintaining the record shall continue to search diligently until it is located or it appears that the record does not exist or is not in EPA's possession, and shall periodically inform the requestor of the office's progress.

§ 2.114 Appeals from initial denials; manner of making.

(a) Any person whose request has been denied in whole or in part by an initial determination may appeal that denial by addressing a written appeal to the Freedom of Information Officer (A101), U.S. Environmental Protection Agency, 401 M Street, SW., Washington, D.C. 20460.

(b) Any appeal shall be mailed no later than 30 calendar days after the date the requestor received the initial determination from which the appeal is taken, or 30 calendar days after the date the requestor last received any documents in response to the request, whichever is later.

(c) The appeal letter shall contain a reference to the date of the initial determination, the name and address of the person who issued the denial letter. The appeal letter shall also indicate whether any of the documents to which access was denied are not the subject of appeal. § 2.115 Appeal determinations; by whom made.

(a) The General Counsel shall make one of the following legal determinations in connection with every appeal of an initial determination from the initial denial of a request for an existing record in EPA's possession:

(1) The record must be released;

(2) The record must not be released, because a statute or a provision of this part so requires; or

(3) The record is exempt from mandatory disclosure but may be released as a matter of Agency discretion.

(b) Whenever the General Counsel has determined under paragraph (a) of this section that a record is exempt from mandatory disclosure but may legally be disclosed, the matter shall be referred to the Director of the EPA Office of

Public Affairs. If the Director of the EPA Office of Public Affairs determines that the record shall not be disclosed, a determination denying the appeal shall be issued by the General Counsel. If the Director of the EPA Office of Public Affairs determines that the record should be disclosed, the record shall be disclosed unless the Administrator (upon a review of the matter requested by the appropriate Assistant Administrator, Regional Administrator, or the Director of a Headquarters Staff Office) determines that the record shall not be disclosed, in which case the General Counsel shall issue a determination denying the appeal.

(c) The General Counsel may delegate his duties under paragraph (a) of this section to a Regional Counsel, or to any other attorney employed on a full-time basis by EPA, in connection with any category of appeals or any individual appeal. No redelegation of such duties is authorized.

§ 2.116 Contents of determination denying appeal.

A determination denying an appeal from an initial denial shall be in writing shall state which of the exemptions in 5 U.S.C. 552(b) are felt to apply to each requested existing record, and shall state briefly the reason(s) for denial of the request. A denial determination shall also state the name and position of each EPA officer or employee who determined or ordered that the appeal be denied. Such a determination shall further state that the person whose request was denied may obtain judicial review of the denial by complaint filed with the district court of the United States in the district in which the complainant resides, or in which the Agency records are situated, or in the District of Columbia, pursuant to 5 U.S.C. 552(a) (4).

§ 2.117 Time allowed for issuance of appeal determination.

(a) Except as otherwise provided in this section, not later than the twentieth working day after the date of receipt by the Freedom of Information Officer at EPA Headquarters of an appeal from an initial denial of a request for records, the

General Counsel shall issue a written determination stating which of the requested records (as to which an appeal was made) shall be disclosed and which shall not be disclosed.

(b) The period of 20 working days shall be measured from the date an appeal, in accordance with § 2.114, is first received by the Freedom of Information Officer at EPA Headquarters, except as otherwise provided in § 2.205.

(c) The Office of General Counsel, after notifying the Freedom of Information Officer at EPA Headquarters, may extend the basic 20-day period established under paragraph (a) of this section by a period not to exceed 10 additional working days, by furnishing written notice to the requestor within the basic 20-day period stating the reasons for such extension and the date by which the office expects to be able to issue a determination. The period may be so extended only when absolutely necessary, only for the period required, and only when one or more of the following unusual circumstances require the extension:

(1) There is a need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(2) There is a need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(3) There is a need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of EPA.

(d) No extension of the 20-day period shall be issued under paragraph (c) of this section which would cause the total of all such extensions and of any extensions issued under § 2.112(e) to exceed 10 working days.

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be denied by any EPA office or employee unless the record contains (or its disclosure would reveal) matters that are

(1) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order;

(2) Related solely to the internal personnel rules and practices of an agency; (3) Specifically exempted from disclosure by statute;

(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would: (1) Interfere with enforcement proceedings; (ii) deprive a person of a right to a fair trial or an impartial adjudication; (iii) constitute an unwarranted invasion of personal privacy; (iv) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source; (v) disclose investigative techniques and procedures; or (vi) endanger the life or physical safety of law enforcement personnel.

(8) Contained in or related to examination operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) Geological and geophysical information and data, including maps, concerning wells.

(b) The fact that the applicability of an exemption permits nondisclosure of a requested record (or portion thereof) does not necessarily mean that the rec

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(a) EPA may, in its discretion, release requested records despite the applicability of the exemptions listed in paragraphs (a) (2), (5), (7), (8), or (9) of § 2.118.

(b) As a matter of policy, EPA will not release a requested record if EPA determines that one or more of the exemptions listed in paragraphs (a) (1), (3), (4), or (6) of § 2.118 apply to the record, except when ordered to do so by a Federal court or in exceptional circumstances under appropriate restrictions with the approval of the Office of General Counsel or a Regional Counsel. § 2.120

Payment.

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If the information requested exists as a computer record and & printout or tape is a means by which that information may be made available, the fee will be the actual direct cost of the computer system time added to any applicable search, in-house programming, reproduction, or contract programming costs.

(b) Prepayment. In the event pending requests under this part from the same requesting party would require the payment of fees in excess of $25.00, such records will not be searched for or made available, nor copies or such records furnished unless the requesting party first pays, or makes acceptable arrangements

to pay, the total amount due; or if not ascertainable exactly, the approximate amount that would become due upon the completion of EPA's search and/or copying activities, as determined by the office responding to the request. All payments must be in the form of check or money order made payable to the U.S. Environmental Protection Agency and delivered to the Freedom of Information Officer at EPA Headquarters or at the appropriate regional office. In the event an advance payment hereunder shall differ from the amount of the fees actually due, an appropriate adjustment will be made at the time the negative determination is issued, the copies requested are delivered, or the records are made available.

(c) Waiver. EPA may reduce or waive the payment of fees, if such reduction or waiver would be in the public interest. § 2.121 Preparation of annual report.

On or before March 1 of each calendar year, EPA's Freedom of Information Officer will submit an Agency report covering the preceding calendar year to the Speaker of the House of Representatives and President of the Senate for referral to the appropriate committees of the Congress. The report shall include:

(a) The number of determinations made by EPA not to comply with requests for records made under section 552(a) of the Freedom of Information Act, as amended, and the reasons for each determination;

(b) The number of appeals made by persons under subsection 552(a) (6), the result of such appeals, and the reason for the action upon each appeal that results in a denial for information;

(c) The name(s) and title(s) or position(s) of each person responsible for the denial of records requested under section 552(b) and the number of instances of participation for each;

(d) The results of each proceeding conducted pursuant to subsection 552(a) (4) (f), including a report of the disciplinary action taken against the officer or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;

(e) A copy of Agency rules regarding the Freedom of Information Act;

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