withheld. However, no initial determination 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]

(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.

§ 2.115 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 matter requested by the appropriate Assistant Administrator, Regional Administrator, or the Director of a Headquarters Staff Office) determines that the public interest would not be served by disclosure, in which case the General Counsel shall issue a determination denying the appeal.

(c) The General Counsel may delegate his authority 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.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 39999, Sept. 8, 1978]

§ 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) apply to each requested existing record, and shall state the reason(s) for denial of the appeal. A denial determination shall also state the name and position of each EPA officer or employee who directed that the appeal be denied. Such a determination shall further state that the person whose request was denied may obtain de novo 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). However, no determination denying an appeal 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 determination shall state that the appeal 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).

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978]

§ 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 is first received by the Freedom of Information Officer at EPA Headquarters, except as otherwise provided in § 2.205(a).

(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 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 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 records from field facilities or other establishments that are separate from the office processing the appeal;

(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 subsection (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.

§ 2.118 Exemption categories.

(a) 5 U.S.C. 552(b) establishes nine exclusive categories of matters which are exempt from the mandatory disclosure requirements of 5 U.S.C. 552(a). No request under 5 U.S.C. 552 for an existing, located record in EPA's possession shall 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 (other than 5 U.S.C. 552(b)): Provided, That such statute:

(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or

(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;

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

(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; (a) interfere with enforcement proceedings; (b) deprive a person of a right to a fair trial or an impartial adjudication; (c) constitute an unwarranted invasion of personal privacy; (d) 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; (e) disclose investigative techniques and procedures; or (f) 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 finanical institutions; or

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

(b) The fact that the applicability of an exemption permits the withholding of a requested record (or portion thereof) does not necessarily mean that the record must or should be withheld. See § 2.119.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978]

§ 2.119 Discretionary release of exempt

documents.

(a) An EPA office may, in its discretion, release requested records despite the applicability of one or more of the exemptions listed in § 2.118 (a)(2), (a)(5), or (a)(7). Disclosure of such records is encouraged if no important purpose would be served by withholding the records.

(b) As a matter of policy, EPA will not release a requested record if EPA has determined that one or more of the exemptions listed in § 2.118 (a)(1), (a)(3), (a)(4), (a)(6), (a)(8), or (a)(9), applies 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 Fees; payment; waiver.

(a) Fee schedule. Fees will be charged requestors for searching for and reproducing requested records, in accordance with the following schedule:

Record search time (EPA employees), $2.50 per half hour. Computer programming time (EPA employees), $4.50 per half hour.

Reproduction of documents (paper copy of paper original), $0.20 per page. Other costs of searching for or duplicating records (including such items as: computer system time; contractor computer programming time; reproduction of photographs, microforms, or magnetic tape; computer printouts; and transportation of records), actual direct cost to EPA.

No charge shall be made

(1) For examination and evaluation of records which have been located and which are known to be among those requested;

(2) For the cost of preparing or reviewing letters of response to a request or appeal;

(3) If the total fee in connection with a request is less than $10.00, or if the costs of collecting the fee would otherwise exceed the amount of the fee;

(4) For search time or computer programming time by EPA employees, if less than one half hour of such time was required in connection with the request;

(5) For responding to a request for one copy of the official personnel record of the requestor;

(6) For furnishing records requested by either House of Congress, or by a duly authorized committee or subcommittee of Congress, unless the records are requested for the benefit of an individual Member of Congress or for a constituent;

(7) For furnishing records requested by and for the official use of other Federal agencies; or

(8) For furnishing records needed by an EPA contractor or grantee to perform the work required by the EPA contract or grant.

(b) Method of payment. All fee payments shall be in the form of a check or money order payable to the "U.S. Environmental Protection Agency" and shall be sent (accompanied by a reference to the pertinent Request Identification Number(s)) to the appropriate Headquarter's or Regional Financial Management Officer.

(c) Notice of estimated fees in excess of $25. (1) Where it is estimated that the fee chargeable under this section will amount to more than $25, and the requester had not submitted payment in advance to cover the estimated fees, the requester shall be notified of the

amount of the estimated fees or such portion thereof as can readily be estimated. In such cases, a request will not be deemed to have been received until the requester is notified of the estimated fees and the requester pays the total amount of fees due (or estimated to become due) under this section. Such a notification of costs shall be transmitted to the requester as soon as possible, but in any event within five working days, giving the best estimate possible.

(2) Where an estimated fee, paid by the requester in advance, exceeds the fee chargeable under the fee schedule for services actually performed, the balance will be refunded by the Agency. Where the actual fees due for the services are in excess of the estimate, the requester will be required to remit the amount of the actual fees before the copies are released.

(d) Reduction or waiver of fee. The fee chargeable under this section may be reduced or waived by EPA If the public interest would be served thereby. Reduction or waiver of fees shall be considered (but need not necessarily be granted) in connection with each request from a representative of the press or other communications medium, or from a public interest group. A request for reduction or waiver of fees shall be addressed to the appropriate Freedom of Information Officer or the EPA office which is responding to the request for records. The latter office shall initially determine whether the fee shall be reduced or waived, and shall so inform the requestor. The initial determination may be appealed by letter addressed to the appropriate Freedom of Information Officer. The Director of the EPA Office of Public Affairs, or the Director's designee in an EPA regional office, shall decide such appeals. The Director of the EPA Office of Public Awareness, or the Director's designee in an EPA regional office, shall decide such appeals.

(e) In the event a requester who is in arrears for previous requests makes a request under this part, the EPA Freedom of Information Officer shall inform the requester that EPA will not process the request until the arrears have been paid in full. Any re

quest made by an individual who specifies an affiliation with or representation of a corporation, association, law firm, or other organization shall be deemed to be a request by the corporation, association, law firm, or other organization. If an organization can show that the person who made the request for which payment is overdue did not make the request on behalf of the organization, the organization will not be considered in arrears, but the individual shall be.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978; 48 FR 11270, Mar. 17, 1983]

For the purposes of this subpart: (a) "Person" means an individual, partnership, corporation, association, or other public or private organization or legal entity, including Federal, State or local governmental bodies and agencies and their employees.

(b) "Business" means any person engaged in a business, trade, employment, calling or profession, whether or not all or any part of the net earnings derived from such engagement by such person inure (or may lawfully inure) to the benefit of any private shareholder or individual.

(c) "Business information" (sometimes referred to simply as "information") means any information which pertains to the interests of any business, which was developed or acquired by that business, and (except where the context otherwise requires) which is possessed by EPA in recorded form.

(d) "Affected business" means, with reference to an item of business information, a business which has asserted (and not waived or withdrawn) a business confidentiality claim covering the information, or a business which could be expected to make such a claim if it were aware that disclosure of the information to the public was proposed.

(e) "Reasons of business confidentiality" include the concept of trade secrecy and other related legal concepts which give (or may give) a business the right to preserve the confi

dentiality of business information and to limit its use or disclosure by others in order that the business may obtain or retain business advantages it derives from its rights in the information. The definition is meant to encompass any concept which authorizes a Federal agency to withhold business information under 5 U.S.C. 552(b)(4), as well as any concept which requires EPA to withhold information from the public for the benefit of a business under 18 U.S.C. 1905 or any of the various statutes cited in § 2.301 through § 2.309.

(f) [Reserved]

(g) Information which is "available to the public" is information in EPA's possession which EPA will furnish to any member of the public upon request and which EPA may make public, release or otherwise make available to any person whether or not its disclosure has been requested.

(h) "Business confidentiality claim" (or, simply, "claim") means a claim or allegation that business information is entitled to confidential treatment for reasons of business confidentiality, or a request for a determination that such information is entitled to such treatment.

(i) "Voluntarily submitted information" means business information in EPA's possession

(1) The submission of which EPA had no statutory or contractual authority to require; and

(2) The submission of which was not prescribed by statute or regulation as a condition of obtaining some benefit (or avoiding some disadvantage) under a regulatory program of general applicability, including such regulatory programs as permit, licensing, registration, or certification programs, but excluding programs concerned solely or primarily with the award or administration by EPA of contracts or grants. (j) "Recorded" means written or otherwise registered in some form for preserving information, including such forms as drawings, photographs, videotape, sound recordings, punched cards, and computer tape or disk.

(k) [Reserved]

(1) "Administrator," "Regional Administrator," "General Counsel," "Regional Counsel," and "Freedom of In