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withheld. However, no initial determi. nation shall reveal the existence or nonexistence of records if identifying the mere fact of the existence or nonexistence of those records would reveal confidential business information, confidential personal information, or a confidential investigation. Instead of identifying the existence or nonexistence of the records, the initial determination shall state that the request is denied because either the records do not exist or they are exempt from mandatory disclosure under the applicable provision of 5 U.S.C. 552(b). No such determination shall be issued without the concurrence of the appropriate EPA legal office.

(e) If the issuance of the determination to deny a request was directed 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.

(f) Each initial determination which denies, in whole or in part, a request for one or more existing, located EPA records shall state that the requestor may appeal the initial denial by sending a written appeal to the address shown in $ 2.106(a) within 30 days of receipt of the determination.

(g) A determination shall be deemed issued on the date the determination letter is placed in EPA mailing channels for first class mailing to the requestor, delivered to the U.S. Postal Service for mailing, or personally delivered to the requestor, whichever date 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. (41 FR 36902, Sept. 1, 1976, as amended at 43 FR 39999, Sept. 8, 1978)

8 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 address shown in $ 2.106(a).

(b) An appeal should be mailed no later than 30 calendar days after the date the requestor received the initial determination on the request. An untimely appeal may be treated either as a timely appeal or as a new request, at the option of the Freedom of Information Officer.

(c) The appeal letter shall contain a reference to the Request Identification Number (RIN), the date of the initial determination, and the name and address of the person who issued the initial denial. The appeal letter shall also indicate which of the records to which access was denied are the subjects of the appeal. 82.115 Appeal determinations; by whom

made. (a) The General Counsel shall make one of the following legal determinations in connection with every appeal from the initial denial of a request for an existing, located record:

(1) The record must be disclosed;

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

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

(b) Whenever the General Counsel has determined under paragraph (a)(3) of this section that a record is exempt from mandatory disclosure but legally may be disclosed and the record has not been disclosed by EPA, the matter shall be referred to the Director of the EPA Office of Public Awareness. If the Director of the EPA Office of Public Awareness determines that the public interest would not be served by disclosure, a determination denying the appeal shall be issued by the General Counsel. If the Director of the EPA Office of Public Awareness determines that the public interest would be served by disclosure, the record shall be disclosed unless the

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Administrator (upon a review of the 82.117 Time allowed for issuance of matter requested by the appropriate appeal determination. Assistant Administrator, Regional Ad

(a) Except as otherwise provided in ministrator, or the Director of a Head

this section, not later than the twentiquarters Staff Office) determines that

eth working day after the date of rethe public interest would not be served

ceipt by the Freedom of Information by disclosure, in which case the Gener

Officer at EPA Headquarters of an al Counsel shall issue a determination

appeal from an initial denial of a redenying the appeal.

quest for records, the General Counsel (c) The General Counsel may dele

shall issue a written determination gate his authority under paragraph (a)

stating which of the requested records of this section to a Regional Counsel, or to any other attorney employed on

(as to which an appeal was made) shall

be disclosed and which shall not be a full-time basis by EPA, in connection with any category of appeals or any

disclosed. individual appeal.

(b) The period of 20 working days

shall be measured from the date an (41 FR 36902, Sept. 1, 1976, as amended at appeal is first received by the Freedom 43 FR 39999, Sept. 8, 1978)

of Information Officer at EPA Head§ 2.116 Contents of determination denying

quarters, except as otherwise provided

in $ 2.205(a). appeal.

(c) The Office of General Counsel, A determination denying an appeal

after notifying the Freedom of Inforfrom an initial denial shall be in writ

mation Officer at EPA Headquarters, ing, shall state which of the exemp

may extend the basic 20-day period estions in 5 U.S.C. 552(b) apply to each

tablished under subsection (a) of this requested existing record, and shall

section by a period not to exceed 10 state the reason(s) for denial of the appeal. A denial determination shall

additional working days, by furnishing

written notice to the requestor within also state the name and position of each EPA officer or employee who di

the basic 20-day period stating the rea

sons for such extension and the date rected that the appeal be denied. Such a determination shall further state

by which the office expects to be able that the person whose request was

to issue a determination. The period denied may obtain de novo judicial

may be so extended only when absoreview of the denial by complaint filed

lutely necessary, only for the period with the district court of the United

required, and only when one or more States in the district in which the

of the following unusual circumcomplainant resides, or in which the stances require the extension: Agency records are situated, or in the (1) There is a need to search for and District of Columbia, pursuant to 5 collect the records from field facilities U.S.C. 552(a)(4). However, no determi. or other establishments that are sepanation denying an appeal shall reveal rate from the office processing the the existence or nonexistence of appeal; records if identifying the mere fact of (2) There is a need to search for, colthe existence or nonexistence of those lect, and appropriately examine a vorecords would reveal confidential busi- luminous amount of separate and disness information, confidential person tinct records which are demanded in a al information, or a confidential inves- single request; or tigation. Instead of identifying the ex- (3) There is a need for consultation, istence or nonexistence of the records, which shall be conducted with all the determination shall state that the practicable speed, with another agency appeal is denied because either the having a substantial interest in the derecords do not exist or they are termination of the request or among exempt from mandatory disclosure

two or more components of EPA. under the applicable provision of 5

(d) No extension of the 20-day U.S.C. 552(b).

period shall be issued under subsection (41 FR 36902, Sept. 1, 1976, as amended at (c) of this section which would cause 43 FR 40000, Sept. 8, 1978)

the total of all such extensions and of

any extensions issued under $ 2.112(e) or by an agency conducting a lawful to exceed 10 working days.

national security intelligence investi

gation, confidential information fur§ 2.118 Exemption categories.

nished only by the confidential source; (a) 5 U.S.C. 552(b) establishes nine (e) disclose investigative techniques exclusive categories of matters which and procedures; or (f) endanger the are exempt from the mandatory dis- life or physical safety of law enforceclosure requirements of 5 U.S.C. ment personnel; 552(a). No request under 5 U.S.C. 552 (8) Contained in or related to examifor an existing, located record in nation, operating, or condition reports EPA's possession shall be denied by prepared by, on behalf of, or for the any EPA office or employee unless the use of an agency responsible for the record contains (or its disclosure regulation or supervision of finanical would reveal) matters that are

institutions; or (1) Specifically authorized under cri. (9) Geological and geophysical inforteria established by an Executive mation and data, including maps, conOrder to be kept secret in the interest cerning wells. of national defense or foreign policy (b) The fact that the applicability of and are in fact properly classified pur an exemption permits the withholding suant to such Executive Order;

of a requested record (or portion (2) Related solely to the internal thereof) does not necessarily mean personnel rules and practices of an that the record must or should be agency;

withheld. See $ 2.119. (3) Specifically exempted from dis

(41 FR 36902, Sept. 1, 1976, as amended at closure by statute (other than 5 U.S.C.

43 FR 40000, Sept. 8, 1978) 552(b)); Provided, That such statute:

(i) Requires that the matters be 82.119 Discretionary release of exempt withheld from the public in such a documents. manner as to leave no discretion on the issue, or

(a) An EPA office may, in its discre(ii) Establishes particular criteria for

tion, release requested records despite withholding or refers to particular

the applicability of one or more of the types of matters to be withheld;

exemptions listed in $ 2.118 (a)(2), (4) Trade secrets and commercial or

(a)(5), or (a)(7). Disclosure of such financial information obtained from a

records is encouraged if no important person and privileged or confidential

purpose would be served by withhold(see Subpart B);

ing the records. (5) Interagency or intra-agency

(b) As a matter of policy, EPA will memorandums or letters which would

not release a requested record if EPA not be available by law to a party

has determined that one or more of other than an agency in litigation with

the exemptions listed in $ 2.118 (a)(1), the agency;

(a)(3), (a)(4), (a)(6), (a)(8), or (a)(9), (6) Personnel and medical files and

applies to the record, except when orsimilar files the disclosure of which

dered to do so by a Federal court or in would constitute a clearly unwarrant

exceptional circumstances under aped invasion of personal privacy;

propriate restrictions with the approv(7) Investigatory records compiled

al of the Office of General Counsel or for law enforcement purposes, but

a Regional Counsel. only to the extent that the production of such records would; (a) interfere

8 2.120 Fees; payment; waiver. with enforcement proceedings; (b) de (a) Fee schedule. Fees will be prive a person of a right to a fair trial charged requestors for searching for or an impartial adjudication; (c) con and reproducing requested records, in stitute an unwarranted invasion of accordance with the following schedpersonal privacy; (d) disclose the iden- ule: tity of a confidential source and, in

Record search time (EPA employees), $2.50 the case of a record compiled by a per half hour. criminal law enforcement authority in Computer programming time (EPA employthe course of a criminal investigation, ees), $4.50 per half hour.

Reproduction of documents (paper copy of amount of the estimated fees or such paper original), $0.20 per page.

portion thereof as can readily be estiOther costs of searching for or duplicating

mated. In such cases, a request will records (including such items as: computer

not be deemed to have been received system time; contractor computer programming time; reproduction of photo

until the requester is notified of the graphs, microforms, or magnetic tape;

estimated fees and the requester pays computer printouts; and transportation of the total amount of fees due (or estirecords), actual direct cost to EPA.

mated to become due) under this secNo charge shall be made

tion. Such a notification of costs shall (1) For examination and evaluation

be transmitted to the requester as of records which have been located

soon as possible, but in any event and which are known to be among

within five working days, giving the those requested;

best estimate possible. (2) For the cost of preparing or re

(2) Where an estimated fee, paid by viewing letters of response to a request the requester in advance, exceeds the or appeal;

fee chargeable under the fee schedule (3) If the total fee in connection for services actually performed, the with a request is less than $10.00, or if balance will be refunded by the the costs of collecting the fee would Agency. Where the actual fees due for otherwise exceed the amount of the the services are in excess of the estifee;

mate, the requester will be required to (4) For search time or computer pro- remit the amount of the actual fees gramming time by EPA employees, if before the copies are released. less than one half hour of such time (d) Reduction or waiver of fee. The was required in connection with the fee chargeable under this section may request;

be reduced or waived by EPA If the (5) For responding to a request for public interest would be served thereone copy of the official personnel by. Reduction or waiver of fees shall record of the requestor;

be considered (but need not necessar(6) For furnishing records requested ily be granted) in connection with by either House of Congress, or by a each request from a representative of duly authorized committee or subcom the press or other communications mittee of Congress, unless the records medium, or from a public interest are requested for the benefit of an in- group. A request for reduction or dividual Member of Congress or for a waiver of fees shall be addressed to constituent;

the appropriate Freedom of Informa(7) For furnishing records requested tion Officer or the EPA office which is by and for the official use of other responding to the request for records. Federal agencies; or

The latter office shall initially deter(8) For furnishing records needed by mine whether the fee shall be reduced an EPA contractor or grantee to per or waived, and shall so inform the reform the work required by the EPA questor. The initial determination contract or grant.

may be appealed by letter addressed to (b) Method of payment. All fee pay. the appropriate Freedom of Informaments shall be in the form of a check tion Officer. The Director of the EPA or money order payable to the “U.S. Office of Public Affairs, or the DirecEnvironmental Protection Agency" tor's designee in an EPA regional and shall be sent (accompanied by a office, shall decide such appeals. The reference to the pertinent Request Director of the EPA Office of Public Identification Number(s)) to the ap. Awareness, or the Director's designee propriate Headquarter's or Regional in an EPA regional office, shall decide Financial Management Officer.

such appeals. (c) Notice of estimated fees in excess (e) In the event a requester who is in of $25. (1) Where it is estimated that arrears for previous requests makes a the fee chargeable under this section request under this part, the EPA Freewill amount to more than $25, and the dom of Information Officer shall requester had not submitted payment inform the requester that EPA will in advance to cover the estimated fees, not process the request until the arthe requester shall be notified of the rears have been paid in full. Any request made by an individual who speci- dentiality of business information and fies an affiliation with or representa- to limit its use or disclosure by others tion of a corporation, association, law in order that the business may obtain firm, or other organization shall be or retain business advantages it dedeemed to be a request by the corpora- rives from its rights in the information, association, law firm, or other or tion. The definition is meant to enganization. If an organization can compass any concept which authorizes show that the person who made the a Federal agency to withhold business request for which payment is overdue information under 5 U.S.C. 552(b)(4), did not make the request on behalf of as well as any concept which requires the organization, the organization will EPA to withhold information from the not be considered in arrears, but the public for the benefit of a business individual shall be.

under 18 U.S.C. 1905 or any of the var

ious statutes cited in $ 2.301 through (41 FR 36902, Sept. 1, 1976, as amended at

$ 2.309. 43 FR 40000, Sept. 8, 1978; 48 FR 11270, Mar. 17, 1983)

(f) (Reserved)

(g) Information which is "available Subpart B-Confidentiality of

to the public" is information in EPA's

possession which EPA will furnish to Business Information

any member of the public upon re

quest and which EPA may make & 2.201 Definitions.

public, release or otherwise make For the purposes of this subpart: available to any person whether or not

(a) Person" means an individual, its disclosure has been requested. partnership, corporation, association, (h) “Business confidentiality claim" or other public or private organization (or, simply, "claim") means a claim or or legal entity, including Federal, allegation that business information is State or local governmental bodies and entitled to confidential treatment for agencies and their employees.

reasons of business confidentiality, or (b) “Business" means any person en a request for a determination that gaged in a business, trade, employ- such information is entitled to such ment, calling or profession, whether or treatment. not all or any part of the net earnings (i) “Voluntarily submitted informaderived from such engagement by tion" means business information in such person inure (or may lawfully EPA's possessioninure) to the benefit of any private (1) The submission of which EPA shareholder or individual.

had no statutory or contractual au(c) “Business information” (some. thority to require; and times referred to simply as "informa (2) The submission of which was not tion") means any information which prescribed by statute or regulation as pertains to the interests of any busi. a condition of obtaining some benefit ness, which was developed or acquired (or avoiding some disadvantage) under by that business, and (except where a regulatory program of general applithe context otherwise requires) which cability, including such regulatory prois possessed by EPA in recorded form. grams as permit, licensing, registra

(d) “Affected business" means, with tion, or certification programs, but exreference to an item of business infor- cluding programs concerned solely or mation, a business which has asserted primarily with the award or adminis(and not waived or withdrawn) a busi- tration by EPA of contracts or grants. ness confidentiality claim covering the (j) "Recorded" means written or othinformation, or a business which could erwise registered in some form for prebe expected to make such a claim if it serving information, including such were aware that disclosure of the in- forms as drawings, photographs, videoformation to the public was proposed. tape, sound recordings, punched cards,

(e) “Reasons of business confiden- and computer tape or disk. tiality” include the concept of trade (k) (Reserved] secrecy and other related legal con (1) “Administrator, Regional Ads cepts which give (or may give) a busi. ministrator.” “General Counsel, Reness the right to preserve the confi- gional Counsel," and Freedom of In

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