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lished by the Civil Service Commission in 5 CFR Parts 293 and 297.
$ 16.2 Definitions.
As used in this part:
(a) The terms “individual," "maintain," "record," "system of records," and “routine use" shall have the meaning given them by 5 U.S.C. 552a (a)(2), (a)(3), (a)(4), (a)(5) and (a)(7), respectively.
(b) “EPA” means the Environmental Protection Agency.
(c) “Working days" means calendar days excluding Saturdays, Sundays, and legal public holidays.
8 16.3 Procedures for requests pertaining
to individual records in a record
system. Any individual who wishes to have EPA inform him or her whether a system of records maintained by EPA contains any record pertaining to him or her which is retrieved by name or personal identifier, or who wishes to request access to any such record, shall submit a written request in accordance with the instructions set forth in EPA's annual notice of systems for that system of records. This request shall include:
(a) The name of the individual making the request;
(b) The name of the system of records (as set forth in the EPA notice of systems) to which the request relates;
(c) Any other information which the system notice indicates should be included; and
(d) If the request is for access, a statement as to whether a personal inspection or a copy by mail is desired.
ployee identification card, social security card, credit card) to establish that he or she is the individual to whom the records pertain. An individual who is unable to provide such identification shall complete and sign, in the presence of an agency official, a stateme declaring his or her identity and stipulating that he or she understands it is a misdemeanor punishable by fine up to $5,000 to knowingly and willfully seek or obtain access to records about another individual under false pretenses.
(c) If an individual, having requested personal inspection of his or her records, wishes to have another person accompany him or her during inspection, he or she shall submit a written statement authorizing disclosure in the presence of the other person(s).
(d) An individual who has made a personal inspection of records may then request copies of those records. Such requests may be granted, but fees may be charged in accordance with $ 16.11.
(e) If an individual submitting a request under $16.3 wishes to have copies furnished by mail, he or she must include with the request sufficient data to allow EPA to verify his or her identity. Should sensitivity of the records warrant it, EPA may require a requester to submit a signed and notarized statement indicating that he or she is the individual to whom the records pertain and that he or she understands it is a misdemeanor punishable by fine up to $5,000 to knowingly and willfully seek or obtain access to records about another indi. vidual under false pretenses. Such mail requests may be granted, but fees may be charged in accordance with $ 16.11.
(f) No verification of identity will be required where the records sought are publicly available under the Freedom of Information Act, as EPA procedures under 40 CFR Part 2 will then apply.
8 16.4 Times, places, and requirements for
identification of individuals making re
quests. (a) If an individual submitting a request for access under $ 16.3 has asked that EPA authorize a personal inspection of records, and EPA has granted the request, he or she may present himself or herself at the time and place specified in EPA's response or arrange another time with the appropriate agency official.
(b) Prior to inspection of records, an individual shall present sufficient identification (e.g., driver's license, em
$ 16.5 Disclosure of requested information
to individuals. (a) Each request received will be acted upon promptly.
(b) Within 10 working days of receipt of a request, the system manager
shall acknowledge the request. When (3) A description of the nature and ever practicable, the acknowledgment substance of the correction or amendwill indicate whether or not access will ment request; and be granted and, if so, when and where. (4) Any additional information speci. When access is to be granted, it shall fied in the system notice. be provided within 30 working days of (b) Any person submitting a request first receipt. If the agency is unable to under this section shall include suffimeet this deadline, the records system cient information in support of that manager shall so inform the requester request to allow EPA to apply the stating reasons for the delay and an standards set forth in 5 U.S.C. 552a estimate of when access will be grant. (e)(1) and (e)(5). ed.
(c) Any person whose request is (c) If a request pursuant to $ 16.3 for denied may appeal that denial to the access to a record is in a system of rec Privacy Act Officer. ords which is exempted, the records
(d) In the event that appeal is system manager will determine wheth- denied, the requester may bring a civil er the information will nonetheless be action to seek review of the denial, made available. If the determination is under 5 U.S.C. 552a(g). to deny access, the reason for denial and the appeal procedure will be given 816.8 Initial determination on request for to the requester.
correction or amendment of record. (d) Any person whose request is ini
(a) Within 10 working days of retially denied may appeal that denial to
ceipt of a request for amendment or the Privacy Act Officer, who shall
correction, the system manager shall make an appeal determination within
acknowledge the request, and prompt10 working days.
ly either: (e) If the appeal under paragraph (1) Make any correction, deletion, or (d) of this section is denied, the re
addition which the requester believes quester may bring a civil action under
should be made; or 5 U.S.C. 552a(g) to seek review of the
(2) Inform the requester of his or denial.
her refusal to correct or amend the 8 16.6 Special procedures: Medical rec
record, the reason for refusal, and the
procedures for appeal. ords.
(b) If the system manager is unable Should EPA receive a request for to comply with the preceding paraaccess to medical records (including graphs within 30 working days of his psychological records) disclosure of or her receipt of a request, he or she which the system manager determines will inform the requester of that fact, would be harmful to the individual to the reasons, and an estimate of when a whom they relate, EPA may refuse to determination will be reached. disclose the records directly to the in- (c) In conducting the review of the dividual and instead offer to transmit request, the system manager will be them to a physician designated by the guided by the requirements of 5 U.S.C. individual.
552a (e)(1) and (e)(5).
(d) If the system manager deter$ 16.7 Request for correction or amend.
mines to grant all or any portion of ment of record.
the request, he or she will: (a) An individual may request cor- (1) Advise the individual of that derection or amendment of any record termination; pertaining to him or her in a system of (2) Make the correction or amendrecords maintained by EPA by submit ment; and ting to the system manager, in writing, (3) So inform any person or agency the following:
outside EPA to whom the record has (1) The name of the individual been disclosed, and, where an accountmaking the request;
ing of that disclosure is maintained in (2) The name of the system, as de accordance with 5 U.S.C. 552a(c), note scribed in the notice of systems;
the occurrence and substance of the
correction or amendment in the accounting.
(e) If the system manager determines not to grant all or any portion of a request for correction or amend ment, he or she will:
(1) Comply with paragraph (d)(3) of this section (if necessary);
(2) Advise the individual of the determination and its basis;
(3) Inform the individual that an appeal may be made; and
(4) Describe the procedures for making the appeal.
(f) If EPA receives from another Federal agency a notice of correction or amendment of information furnished by that agency and contained in one of EPA's systems of records, the system manager shall advise the individual and make the correction as if EPA had originally made the correction or amendment.
(2) Of the requester's right to file a concise statement of reasons for disagreeing with EPA's decision;
(3) Of the procedures for filing such statement of disagreement;
(4) That such statements of disagreements will be made available in subsequent disclosures of the record, together with an agency statement (if deemed appropriate) summarizing its refusal;
(5) That prior recipients of the disputed record will be provided with statements as in paragraph (e)(4) of this section, to the extent that an accounting of disclosures is maintained under 5 U.S.C. 552a(c); and
(6) Of the requester's right to seek judicial review under 5 U.S.C. 552a(g).
8 16.9 Appeal of initial adverse agency de
termination on request for correction
or amendment. (a) Any individual whose request for correction or amendment is initially denied by EPA and who wishes to appeal may do so by letter to the Privacy Act Officer. The appeal shall contain a description of the initial request sufficient to identify it.
(b) The Privacy Act Officer shall make a final determination not later than 30 working days from the date on which the individual requests the review, unless, for good cause shown, the Privacy Act Officer extends the 30-day period and notifies the requester. Such extension will be utilized only in exceptional circumstances.
(c) In conducting the review of an appeal, the Privacy Act Officer will be guided by the requirements of 5 U.S.C. 552a (e)(1) and (e)(5).
(d) If the Privacy Act Officer determines to grant all or any portion of an appeal he or she shall so inform the requester and EPA shall make the correction or amendment and comply with $ 16.8(d)(3).
(e) If the Privacy Act Officer determines not to grant all or any portion of an appeal he or she shall inform the requester:
(1) Of the determination and its basis;
816.10 Disclosure of record to person
other than the individual to whom it
pertains. EPA shall not disclose any record which is contained in a system of records it maintains except pursuant to a written request by, or with the written consent of, the individual to whom the record pertains, unless the disclosure is authorized by one or more of the provisions of 5 U.S.C. 552a(b). 8 16.11 Fees.
No fees shall be charged for providing the first copy of a record or any portion to an individual to whom the record pertains. The fee schedule for reproducing other records is the same as that set forth in 40 CFR 2.120. 8 16.12 Penalties.
The Act provides, in pertinent part:
"Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.” (5 U.S.C. 552a(i)(3).)
8 16.14 Specific exemptions.
(a) Pursuant to 5 U.S.C. 552a(k)(2), investigatory material compiled for law enforcement purposes in the following systems of records is exempt from subsections (c)(3), (d), (e)(1). (e)(4) (G), (H) and (I), and (f) of 5 U.S.C. 552a and from the provisions of this part, except as otherwise provided in 552a(k)(2). EPA-2 General Personnel Records-EPA EPA-4 Inspection Branch Reports-EPA EPA-5 Personnel Security File System
EPA (b) Pursuant to 5 U.S.C. 552a(k)(5), investigatory material compiled solely for the purpose of determining suit. ability, eligibility, or qualifications for Federal civilian employment or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to September 27, 1975, under an implied promise that the identity would be held in confidence, in the following systems of records is exempt from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I) and (f) of 5 U.S.C. 552a and from the provisions of this part, except as otherwise provided in 552a(k)(5).
Applications 17.21 Filing and service of documents. 17.22 Answer to application. 17.23 Comments by other parties. 17.24 Settlement. 17.25 Extensions of time and further pro
ceedings. 17.26 Decision on application. 17.27 Agency review. 17.28 Judicial review. 17.29 Payment of award.
AUTHORITY: Sec. 504 of Title 5, United States Code, as amended by sec. 203(a)(1) of the Equal Access to Justice Act (Title 2 of Pub. L. 96-481, 94 Stat. 2323).
SOURCE: 47 FR 16781, Apr. 20, 1982, unless otherwise noted.
Subpart A-General Provisions
EPA-2 General Personnel Records-EPA EPA-4 Inspection Branch Reports-EPA EPA-5 Personnel Security File System
8 17.01 Purpose of these rules.
These rules are adopted by EPA pursuant to section 504 of title 5 United States Code, as added by section 203(a)(1) of the Equal Access to Justice Act, Pub. L. No. 96-481 ("the Act”). Under the Act, an eligible party may receive an award for attorney's fees and other expenses when it prevails over EPA in an adversary adjudication before EPA unless EPA's position as a party to the proceeding was substantially justified or special circumstances make an award unjust. The purpose of these interim rules is to establish procedures for the submission and consideration of applications for awards against EPA when the underlying decision is not reviewed by a court.
PART 17-IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN EPA ADMINISTRATIVE PROCEEDINGS
Subpart A-General Provisions
17.01 Purpose of these rules. 17.02 Definitions. 17.03 Proceedings covered. 17.04 Applicability to EPA proceedings. 17.05 Eligibility of applicants. 17.06 Standards for awards. 17.07 Allowable fees and other expenses. 17.08 Delegation of Authority.
8 17.02 Definitions.
As used in this part:
(a) “The Act” means section 504 of title 5, United States Code, as amended by section 203(a)(1) of the Equal Access to Justice Act, Pub. L. No. 96481.
(b) “Adversary adjudication" means an adjudication required by statute to be held pursuant to 5 U.S.C. 554 in which the position of the United States is represented by counsel or otherwise, but excludes an adjudication for the purpose of granting or renewing a license.
Subpart B-Information Required From
Applicants 17.11 Contents of application. 17.12 Net worth exhibit. 17.13 Documentation of fees and expenses. 17.14 Time for submission of application.
(c) “Presiding officer” means the of- cation or suspension of any permit ficial, without regard to whether he is under section 105(a) or 105(f) of the designated as an administrative law Marine Protection Research, and judge or a hearing officer or examiner, Sanctuaries Act as amended (33 U.S.C. who presides at the adversary adjudi- 1415(a), 33 U.S.C. 1415(f)); cation.
(9) A hearing to consider the issu(d) “Proceeding" means an adver ance of a compliance order or the assary adjudication as defined in para sessment of any civil penalty conductgraph (b) of this section.
ed under Section 3008 of the Resource
Conservation and Recovery Act as 8 17.03 Proceedings covered.
amended (42 U.S.C. 6928); (a) These rules apply to adversary (10) A hearing to consider the issuadjudications required by statute to be ance of a compliance order under Secconducted by EPA under 5 U.S.C. 554. tion 11(d) of the Noise Control Act as To the extent that they are adversary amended (42 U.S.C. 4910(d)). adjudications, the proceedings con (b) If a proceeding includes both ducted by EPA to which these rules matters covered by the Act and matapply include:
ters specifically excluded from cover(1) A hearing to consider the assess age, any award made will include only ment of a noncompliance penalty fees and expenses related to covered under section 120 of the Clean Air Act issues. as amended (42 U.S.C. 7420);
(2) A hearing to consider the termi- $ 17.04 Applicability to EPA proceedings. nation of an individual National Pollu
The Act applies to an adversary adtion Discharge Elimination System
judication pending before EPA at any permit under Section 402 of the Clean
time between October 1, 1981 and SepWater Act as amended (33 U.S.C.
tember 30, 1984. This includes pro1342);
ceedings begun before October 1, 1981 (3) A hearing to consider the assess
if final EPA action has not been taken ment of any civil penalty under sec
before that date, and proceedings tion 16(a) of the Toxic Substances
pending on September 30, 1984. Control Act (15 U.S.C. 2615(a));
(4) A hearing to consider ordering a 8 17.05 Eligibility of applicants. manufacturer of hazardous chemical substances or mixtures to take actions
(a) To be eligible for an award of atunder section 6(b) of the Toxic Sub
torney's fees and other expenses stances Control Act, (15 U.S.C.
under the Act, the applicant must be a 2605(b)) to decrease the unreasonable
prevailing party in the adversary adjurisk posed by a chemical substance or
dication for which it seeks an award. mixture;
The term "party” is defined in 5 (5) A hearing to consider the assess
U.S.C. 551(3). The applicant must ment of any civil penalty under sec
show that it meets all conditions of elition 14(a) of the Federal Insecticide,
gibility set out in this subpart and in Fungicide, and Rodenticide Act as
Subpart B. amended (7 U.S.C. 1361);
(b) The types of eligible applicants (6) A hearing to consider suspension of a registrant for failure to take ap
(1) An individual with a net worth of propriate steps in the development of not more than $1 million; registration data under Section (2) The sole owner of an unincorpor3(c)(2)(B) of the Federal Insecticide. ated business who has a net worth of Fungicide and Rodenticide Act as not more than $5 million and not more amended (7 U.S.C. 136a);
than 500 employees; (7) A hearing to consider the cancel (3) A charitable or other tax-exempt lation of a registration under Section 6 organization described in section of the Federal Insecticide, Fungicide, 501(c)(3) of the Internal Revenue and Rodenticide Act as amended (7 Code (26 U.S.C. 501(c)(3)) with not U.S.C. 136(d));
more than 500 employees; (8) A hearing to consider the assess- (4) A cooperative association as dement of any civil penalty or the revo- fined in section 15(a) of the Agricul