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2.202 Applicability of subpart; priority where provisions conflict; records containing more than one kind of information.

2.203 Notice to be included in EPA requests, demands, and forms; method of asserting business confidentiality claim; effect of failure to assert claim at time of submission.

2.204 Initial action by EPA office. 2.205 Final confidentiality determination by EPA legal office.

2.206 Advance confidentiality determinations.

2.207 Class determinations.

2.208 Substantive criteria for use in confidentiality determinations.

2.209 Disclosure in special circumstances. 2.210 Nondisclosure for reasons other than business confidentiality or where disclosure is prohibited by other statute. 2.211 Safeguarding of business information; penalty for wrongful disclosure. 2.212 Establishment of control offices for categories of business information. 2.213 Designation by business of addressee for notices and inquiries.

2.214 Defense of Freedom of Information Act suits; participation by affected busi

ness.

2.215 Confidentiality agreements. 2.216-2.300 [Reserved]

2.301 Special rules governing certain information obtained under the Clean Air Act.

2.302 Special rules governing certain information obtained under the Clean Water Act.

2.303 Special rules governing certain information obtained under the Noise Control Act of 1972.

2.304 Special rules governing certain information obtained under the Safe Drinking Water Act.

2.305 Special rules governing certain information obtained under the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976.

2.306 Special rules governing certain information obtained under the Toxic Substances Control Act.

Sec.

2.307 Special rules governing certain information obtained under the Federal Insecticide, Fungicide and Rodenticide Act. 2.308 Special rules governing certain information obtained under the Federal Food, Drug and Cosmetic Act.

2.309 Special rules governing certain information obtained under the Marine Protection, Research and Sanctuaries Act of 1972.

AUTHORITY: 5 U.S.C. 301, 552, 553; secs. 114, 208, 301, and 307 of the Clean Air Act, as amended, 42 U.S.C. 7414, 7542, 7601, 7607; secs. 308, 501, and 509(a) of the Clean Water Act, as amended, 33 U.S.C. 1318, 1361, 1369(a); sec. 13 of the Noise Control Act of 1972, 42 U.S.C. 4912; secs. 1445 and 1450 of the Safe Drinking Water Act, 42 U.S.C. 300j-4, 300j-9; secs. 2002 and 3007 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6927; sec. 14 of the Toxic Substances Control Act, 15 U.S.C. 2613; secs. 10. 12, and 25 of the Federal Insecticide, Fungicide and Rodenticide Act, as amended, 7 U.S.C. 136h, 136j, 136v; sec. 408(f) of the Federal Food, Drug, and Cosmetic Act, as amended, 21 U.S.C. 346(f); and secs. 104(f) and 108 of the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. 1414(f), 1418.

SOURCE: 41 FR 36902, Sept. 1, 1976, unless otherwise noted.

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For the purposes of this part:

(a) "EPA" means the United States Environmental Protection Agency.

(b) "EPA record" or, simply, "record" means any document, writing, photograph, sound or magnetic recording, drawing, or other similar thing by which information has been preserved, from which the information can be retrieved and copied, and which is, was, or is alleged to be possessed by EPA. The term includes informal writings (such as handwritten notes, drafts, and the like), and also includes information preserved in a form which inust be translated or deciphered by machine in order to be intelligible to humans. The term includes documents and the like which were created or acquired by EPA, its predecessors, its officers, and employees by use of Government funds or in the course of transacting official business. However,

the term does not include materials which are legally owned by an EPA officer or employee in his or her purely personal capacity. Nor does the term include materials published by nonFederal organizations which are readily available to the public, such as books, journals, and periodicals available through reference libraries, even if such materials are in EPA's possession.

(c) "Request" means a request to inspect or obtain a copy of one or more records.

(d) "Requestor" means any person who has submitted a request to EPA.

§ 2.101 Policy on disclosure of EPA records.

(a) EPA will make the fullest possible disclosure of records to the public, consistent with the rights of individuals to privacy, the rights of persons in business information entitled to confidential treatment, and the need for EPA to promote frank internal policy deliberations and to pursue its official activities without undue disruption.

(b) All EPA records shall be available to the public unless they are exempt from the disclosure requirements of 5 U.S.C 552.

(c) All nonexempt EPA records shall be available to the public upon request regardless of whether any justification or need for such records has been shown by the requestor.

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rected by the requestor to offices other than those listed in § 2.106.

(b) Any written request to EPA for existing records prepared by EPA for routine public distribution, e.g., pamphlets, copies of speeches, press releases, and educational materials, shall be honored. No individual determination under § 2.111 is necessary in such cases, since preparation of the records for routine public distribution itself constitutes a determination that the records are available to the public.

§ 2.105 Existing records.

(a) The Freedom of Information Act, 5 U.S.C. 552, does not require the creation of new records in response to a request, nor does it require EPA to place a requestor's name on a distribution list for automatic receipt of certain kinds of records as they come into existence. The Act establishes requirements for disclosure of existing records.

(b) All existing EPA records are subject to routine destruction according to standard record retention schedules.

§ 2.106 Where requests for agency records shall be filed.

(a) A request for records may be filed with the EPA Freedom of Information Officer, A-101, 401 M Street, SW., Washington, D.C. 20460.

(b) Should the requestor have reason to believe that the records sought may be located in an EPA regional office, he may transmit his request to the appropriate regional Freedom of Information Office indicated below:

(1) Region I (Massachusetts, Connecticut, Maine, New Hampshire, Rhode Island, Vermont):

U.S. Environmental Protection Agency, Freedom of Information Officer, Room 2303, John F. Kennedy Federal Building, Boston, Mass. 02203.

(2) Region II (New Jersey, New York, Puerto Rico, Virgin Islands):

U.S. Environmental Protection Agency, Freedom of Information Officer, Room 1005, 26 Federal Plaza, New York, NY 10007.

(3) Region III (Delaware, Maryland, Pennsylvania, Virginia, West Virginia, District of Columbia);

U.S. Environmental Protection Agency, Freedom of Information Officer, Curtis Building, Sixth and Walnut Streets, Philadelphia, PA 19106.

(4) Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee): U.S. Environmental Protection Agency, Freedom of Information Officer, Suite 504, 1421 Peachtree Street, NE., Atlanta, GA 30309.

(5) Region V (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin);

U.S. Environmental Protection Agency, Freedom of Information Officer, 230 Dearborn Street, Chicago, IL 60604.

(6) Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas): U.S. Environmental Protection Agency, Freedom of Information Officer, Suite 1100, 1600 Patterson Street, Dallas, TX 75201.

(7) Region VII (Iowa, Kansas, Missouri, Nebraska):

U.S. Environmental Protection Agency, Freedom of Information Officer, 1735 Baltimore Avenue, Kansas City, MO 64108. (8) Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming):

U.S. Environmental Protection

Agency,

Freedom of Information Officer, Suite 900, 1860 Lincoln Street, Denver, CO 80203.

(9) Region IX (Arizona, California, Hawaii, Nevada, American Samoa, Guam, Trust Territory of Pacific Islands, Wake Island):

U.S. Environmental Protection Agency, Freedom of Information Officer, 100 California Street, San Francisco, CA 94111.

(10) Region X (Alaska, Idaho, Oregon, Washington):

U.S. Environmental Protection Agency, Freedom of Information Officer, 1200 Sixth Avenue, Seattle, WA 98101.

§ 2.107 Misdirected written requests; oral

requests.

(a) EPA cannot assure that a timely or satisfactory response under this

subpart will be given to written requests that are addressed to EPA offices, officers, or employees other than the Freedom of Information Officers listed in § 2.106. Any EPA officer or employee who receives a written request for inspection or disclosure of EPA records shall promptly forward a copy of the request to the appropriate Freedom of Information Officer, by the fastest practicable means, and shall, if appropriate, commence action under § 2.111.

(b) While EPA officers and employees will attempt in good faith to comply with requests for inspection or disclosure of EPA records made orally, by telephone or otherwise, such oral requests are not required to be processed in accordance with this subpart. § 2.108 Form of request.

A request shall be made in writing, shall reasonably describe the records sought in a way that will permit their identification and location, and should be addressed to one of the addresses set forth in § 2.106, but otherwise need not be in any particular form.

§ 2.109 Requests which do not reasonably describe records sought.

(a) If the description of the records sought in the request is not sufficient to allow EPA to identify and locate the requested records, the EPA office taking action under § 2.111 will notify the requestor (by telephone when practicable) that the request cannot be further processed until additional information is furnished.

(b) EPA will make every reasonable effort to assist in the identification and description of records sought and to assist the requestor in formulating his request. If a request is described in general terms (e.g., all records having to do with a certain area), the EPA office taking action under §2.111 may communicate with the requestor (by telephone when practicable) with a view toward reducing the administrative burden of processing a broad request and minimizing the fees payable by the requestor. Such attempts will not be used as a means to discourage requests, but rather as a means to help

identify with more specificity the records actually sought.

§ 2.110 Responsibilities of Freedom of Information Officers.

(a) Upon receipt of a written request, the Freedom of information Officer (whether at EPA Headquarters or at an EPA region) shall mark the request with the date of receipt, and shall attach to the request a control slip indicating the date of receipt, the date by which response is due, a unique Request Identification Number, and other pertinent administrative information. The request and control slip shall then be forwarded immediately to the EPA office believed to be responsible for maintaining the records requested. (If the records requested are believed to be located at two or more EPA offices, each such office shall be furnished a copy of the request and control slip, with instructions concerning which office shall serve as the lead office for coordinating the response.) The Freedom of Information Officer shall retain a file copy of the request and control slip, and shall monitor the handling of the request to ensure a timely response.

(b) The Freedom of Information Officer shall maintain a file concerning each request received, which shall contain a copy of the request, initial and appeal determinations, and other pertinent correspondence and records.

(c) The Freedom of Information officer shall collect and maintain the information necessary to compile the reports required by 5 U.S.C. 552(d).

§ 2.111 Action by office responsible for responding to request.

(a) Whenever an EPA office becomes aware that it is responsible for responding to a request, the office shall:

(1) Take action under § 2.109, if required, to obtain a better description of the records requested;

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

(3) When appropriate, take action under §2.120(c) to obtain payment or assurance of payment;

(4) If any located records contain business information, as defined in §2.201(c), comply with Subpart B of this part;

(5) Determine which of the requested records legally must be withheld, and why (see § 2.119(b));

(6) Of the requested records which are exempt from mandatory disclosure but which legally may be disclosed (see § 2.119(a)), determine which records will be withheld, and why;

(7) Issue all initial determination within the allowed period (see § 2.112), specifying (individually or by category) which records will be disclosed and which will be withheld, and signed by a person authorized to issue the determination under §2.113(b). Denials of requests shall comply with § 2.113; and

(8) Furnish the appropriate Freedom of Information Officer a copy of the determination. If the determination denied a request for one or more existing, located records, the responding office shall also furnish the Freedom of Information officer the name, address, and telephone number of the EPA employee(s) having custody of the records, and shall maintain the records in a manner permitting their prompt forwarding to the General Counsel upon request if an appeal from the initial denial is filed. See also § 2.204(f).

(b) If it appears that some or all of the requested records are not in the possession of the EPA office which has been assigned responsibility for responding to the request but may be in the possession of some other EPA office, the Freedom of Information officer who is monitoring the request shall be so informed immediately.

§ 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.

(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 date that a requestor is notified by EPA under § 2.109 that his request does not reasonably identify the records sought, and the date that the requestor furnishes a reasonable identification.

(d) There shall be excluded from the period of 10 working days (or any extension thereof) any time which elapses between the date that a requestor is notified by EPA under § 2.120 that prepayment of fees is required, and the date that the requestor pays (or makes suitable arrangements to pay) such charges.

(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 subsection (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.

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(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 that the public interest would not be served by disclosure;

(6) Section 2.204(d)(1) 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) Assistant Administrators, heads of headquarters staff offices, and Regional Administrators are delegated the authority to issue initial determinations. This authority may be redelegated; provided, that the authority to issue initial denials of requests for existing located records (other than denials based solely on § 2.204(d)(1)) may be redelegated only to persons occupying positions not lower than division director or equivalent.

(c) [Reserved]

(d) Each initial determination to deny a request shall be written, signed, and dated, shall contain a reference to the Request Identification Number, shall identify the records that are being withheld (individually, or, if the denial covers a large number of similar records, by described category), and shall state the basis for denial of each record or category of records being

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