Records

(a) Exempt information. may be exempt from disclosure, pursuant to 5 U.S.C. 552(b), when they pertain to matters that are:

(1) Specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy;

(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 files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;

(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) Procedures. The office responsible for maintaining the records requested will make a preliminary evaluation to determine whether they are exempt from mandatory disclosure pursuant to 5 U.S.C. 552(b). Whenever it is determined that the records requested are or may be exempt, such office will promptly forward a copy or a description of the records requested, together with a brief statement of its position with reference to the applicability of an exemption, and a request for a determination, to the Office of the General Counsel at EPA headquarters, or to the Regional Counsel for the region in which the records are located, and, if the information contained in the records requested was obtained from a person other than EPA, will give notice of the request to such other person.

§ 2.106

Determinations by the Office of the General Counsel or a Regional Counsel.

(a) General. Not later than 10 working days after receipt of a request for a determination, the Office of the General Counsel or Regional Counsel:

(1) Will advise the office requesting the determination to release the records requested, if no exemption pursuant to 5 U.S.C. 552(b) is found applicable; or (2) Will advise the office requesting the determination not to release the records requested, if disclosure is prohibited by law; or

(3) Will, if it is found that an exemption pursuant to 5 U.S.C. 552(b) is applicable, but that disclosure is not prohibited by law, forward to the EPA Office of Public Affairs the entire file, with an opinion as to the applicability of a statutory exemption; and,

(4) Will, if the information contained in the requested records was obtained from a person other than EPA, advise such other person of the action taken pursuant to this section.

(b) Consultation. A determination by a Regional Counsel under paragraph (a) of this section will be made only after consultation with the Office of the General Counsel.

§ 2.107

Determinations by the Office of Public Affairs.

Not later than 10 working days after receipt of an opinion from the Office of the General Counsel or a Regional Counsel pursuant to § 2.106(a)(3) as to the applicability of an exemption under 5 U.S.C. 552(b), the Office of Public Affairs will determine whether the records requested should be made available in the public interest, notwithstanding the applicability of an exemption, and will

(a) Order the disclosure of the records requested, or

(b) Notify the requesting party in accordance with § 2.109 that the records requested will not be disclosed.

§ 2.107a Trade secrets and privileged or confidential information.

(a) Trade secrets. (1) In the event records requested under this part may contain trade secrets, the office responsible for maintaining the records requested will forward the request for determination and accompanying materials referred to in § 2.105 (b) only to the Office of General Counsel, and the notice

referred to in § 2.105(b), unless published in the FEDERAL REGISTER, will be sent by certified mail (return receipt requested): Provided, That notice under § 2.105(b) need not be given if similar notice was given prior to referring the matter to the Office of General Counsel.

(2) If a person to whom notice of a request for records has been given under § 2.105(b), or otherwise, advises the Office of General Counsel, in writing, prior to the expiration of 10 working days following the receipt or publication of such notice, that the requested records contain trade secrets furnished by such person, the portions of such records said to contain trade secrets shall not be disclosed, nor copies provided, unless the General Counsel shall first have made a final written determination that such records do not in fact contain trade secrets, or unless such disclosure is authorized by statute in spite of the provisions of 18 U.S.C. 1905. In the event no claim or other response is received by the Office of General Counsel prior to the expiration of the 10 working days specified herein, it will, before reaching a determination with respect to trade secrecy, make prompt inquiries to ensure that the absence of a response hereunder is not attributable to delay or failure of the mails. A claim, including a claim asserted by telephone, made at the time of such inquiries and confirmed in writing will be considered timely for purposes of subparagraph (3) of this paragraph. The Office of General Counsel will promptly notify the requesting party whenever a claim is made under this subparagraph. In making a determination under this subparagraph, the General Counsel will consider any additional information submitted to the Office of General Counsel within 30 days of receipt of a claim made hereunder, or within such longer time period requested by the claimant or the requesting party as it may agree to. If authorized by 5 U.S.C. 552(b) (4), the Office of General Counsel may agree to treat any such additional information as confidential at the request of the person submitting it, in which case it will not be disclosed without the express written permission of the person submitting it. If the General Counsel determines that the records requested do not contain trade secrets, notice of such determination will be served by certified mail by the Office of General Counsel upon the person making the claim. No sooner than 30 days following

the mailing of such notice, the requested records will be disclosed in accordance with this part.

(3) In the event a timely claim is made under subparagraph (2) of this paragraph, the time limits specified in §§ 2.106(a) and 2.109 (b) will not apply. In addition, the time limit specified in § 2.106(a) will be extended to include the time required for the prompt inquiries by the Office of General Counsel, referred to in subparagraph (2) of this paragraph.

(4) On request of an interested party, the General Counsel may issue written determinations as to whether specified information contained in EPA records does or does not constitute trade secrets, whether or not a request for information has been made under this part. In the event a request is subsequently made under this part for information previously so determined to constitute trade secrets, EPA will be bound by that previous determination, unless the General Counsel: (i) Determines that subsequent events have destroyed the trade secrecy of the information in question, and (ii) gives written notice of such determination, and a full explanation of the basis therefor, to any person making a claim under subparagraph (2) of this paragraph.

(b) Privileged or confidential information. (1) Privileged or confidential information (other than trade secrets or financial information the disclosure of which is prohibited by 18 U.S.C. 1905), which is referred to in 5 U.S.C. 552(b) (4) and 2.105 (a) (4), and defined in subparagraph (2) of this paragraph, will not be disclosed under this part without the express written permission of the person providing it to EPA.

(2) For purposes of this paragraph, "privileged or confidential information" means information which an agency is authorized (but not required) by law to withhold from the public and which is either:

(i) Submitted to EPA pursuant to, and in reliance on, a pledge of confidentiality contained in anv EPA form, or obtained in writing from EPA; or

(ii) Received from a State or Federal agency which in turn has received the information pursuant to, and in reliance on, a pledge of confidentiality, and which continues to consider itself bound by such pledge (unless EPA is entitled by law to demand such information from the original private source).

(3) No pledge will be made by EPA under subparagraph (2) of this paragraph in connection with information which EPA is entitled by law to demand (such as emission data under section 114 of the Clean Air Act, 42 U.S.C. 1857c-9) or which is submitted to EPA to fulfill a requirement imposed by statute or regulation in connection with a regulatory scheme of general applicability (such as information contained in application for registrations, permits, certifications, and the like). Nothing herein is intended to affect the status of information which is required by law to be treated as confidential.

[37 FR 9630, May 13, 1972]

§ 2.108 Creation of records.

Documents will not be created by compiling selected items from other documents at the request of a member of the public, nor will records be created to provide the requesting party with data such as ratios, proportions, percentages, frequency distribution, trends, correlations, or comparisons.

§ 2.109

Denial of requests for records.

(a) General: If it is determined pursuant to this part that requested records will not be provided, the EPA office responsible for maintaining the requested records (or, in the event a determination has been made under § 2.107(b), the Office of Public Affairs will notify the requesting party in writing that the request has been denied. A written denial of a request for information will contain a brief explanation of the statutory basis for nondisclosure, and will state that judicial review is available in the U.S. District Court for the district in which the requesting party resides or has his principal place of business, or in which the records sought are located.

(b) If EPA shall fail to grant or to deny in writing a request within 90 days following its receipt, the requesting party may regard such failure as final EPA action denying the request, and will be entitled to pursue his remedy in the courts as provided by 5 U.S.C. 552(a) (3). § 2.110

Copies of documents.

If it is determined that records requested may be disclosed, the requesting party will be entitled to copies. However, records shall not be released for copying by non-EPA personnel. When a determination not to disclose a portion of

(a) Charges. Fees will be charged for copies of records which are furnished to a person under this part and for time spent in locating and reproducing them, in accordance with a fee schedule maintained and revised by the Office of Public Affairs. No fee will be charged for time spent in processing of any request for information, nor will any fee be charged for periods of less than one-half hour spent in connection with a search for records. For purposes of this section, "processing" shall include all time spent in generating correspondence related to a request and in making determinations under §§ 2.106, 2.107 and 2.107a.

(b) Prepayment. In the event pending requests under this part from the same requesting party would require the payment of fees in excess of $10, such records will not be made available, nor copies of such records furnished unless the requesting party first submits payment in the total amount due; or, if not ascertainable, in the approximate amount that would become due upon compliance with the request, as determined by the Office of Public Affairs or by the office complying with the request. In the event an advance payment hereunder shall differ from the amount of the fees actually due, an appropriate adjustment will be effected at the time the copies requested are delivered.

(c) Waiver. The Office of Public Affairs or the office complying with the request may waive the payment of fees, if such waiver would be in the public interest. [36 FR 23058, Dec. 13, 1971, as amended at 37 FR 9631, May 13, 1972]

3.302 Statutory prohibitions against acts affecting a personal financial interest.

3.303 Waiver of statutory prohibition. 3.304

Confidential statements of employment and financial interests. Appendix A-Procedures for filing statements of employment and financial interests.

Appendix B-Positions whose incumbents must file confidential statements of employment and financial interests.

Appendix C-Categories of financial interests exempted from the prohibition of 18 U.S.C. 208(a). (See §§ 3.303 (b) and 3.606 (d) (ii).)

Subpart D-Acceptance of Gifts, Gratuities, or Entertainment

AUTHORITY.-Executive Order 11222, 30 FR 6460, 3 CFR, 1964-1965 Comp., p. 306; 5 CFR 735.101 et seq.

SOURCE: 38 FR 9556, April. 17, 1973, unless otherwise noted.

Subpart A-General Provisions

§ 3.100

Purpose.

The regulations prescribed in this part set forth the high ethical standards of conduct required of each Environmental Protection Agency (hereinafter "EPA") employee, including both regular and special Government employees as they are covered by these regulations, in carrying out their duties and responsibilities.

(a) "Agency" means the Environmental Protection Agency.

(b) "Employee" means any officer or employee of the Environmental Protection Agency other than a special Government employee.

(c) "Special Government employee" as defined under section 202 of Title 18, United States Code, means an officer or employee of the Environmental Protection Agency who is retained, designated, appointed, or employed to perform with or without compensation, temporary duties either on a full-time or intermittent basis, for not to exceed 130 days during any period of 365 consecutive days.

(d) "Former employee" means a former Environmental Protection Agency employee or former special Government employee as defined under paragraph (c) of this section. § 3.103

Ethical standards of conduct for employees.

Each employee shall refrain from any use of his official position which is motivated by, or has the appearance of being

motivated by, the desire for private gain for himself or other persons. He shall conduct himself in such a manner that there is not the slightest suggestion of the extracting of private advantage from his Government employment. Pursuant to this policy, each employee will observe the following standards of conduct:

(a) He shall not as a result of, or on the basis of, any information derived from his official position or from the official position of other employees with them whom he associates, engage, directly or indirectly, in any business transaction or arrangement, including the buying or selling of securities or recommending the purchase or sale of securities to other persons.

(b) He shall exercise care in his personal financial activities to avoid any appearance of acting on the basis of information obtained in the course of performing his Government duties.

(c) If he acquires information in the course of performing his Government duties that is not generally available to those outside the Government, he shall not use this information to further a private interest or for the special benefit of a business or other entity in which he has a financial or other interest.

(d) He shall not use his Government position in anyway to coerce, or give the appearance of coercing, another person to provide any financial benefit to him or to other persons.

(e) He shall avoid any action, whether or not specifically prohibited by law or regulation (including the provisions of this part), which might result in, or create the appearance of:

(1) Using his public office for private gain;

(2) Giving preferential treatment to any organization or person;

(3) Impeding Government efficiency or economy;

(4) Losing his independence or impartiality of action;

(5) Making a Government decision outside official channels; or

(6) Affecting adversely the confidence of the public in the integrity of the Government.

§ 3.104 Other general standards of conduct.

(a) Use of Government property.—An employee shall not directly or indirectly use, or allow the use of, Government property of any kind, including property leased to the Government, for other than

officially approved activities. An employee has a positive duty to protect and conserve Government property, including equipment, supplies, and other property entrusted or issued to him.

(b) Indebtedness.-The indebtedness of EPA employees is considered to be essentially a matter of their own concern. EPA shall not be placed in the position of acting as a collection agency or of determining the validity or amount of contested debts. Employees are expected, however, to honor in a proper and timely manner all just financial obligations, especially those imposed by law such as Federal, State, or local taxes. For purposes of this section a "just financial obligation" means one acknowledged by the employee or reduced to judgment by a court, and "in a proper and timely manner" means in a manner which the agency determines does not, under the circumstances, reflect adversely on the Government as his employer.

(c) Gambling, betting, and lotteries.— While on Government-owned or leased property, or while on duty for the Government, employees shall not participate in any gambling activity, including the operation of a gambling device, in conducting a lottery or pool, in participating in a game for money or property, or in selling or purchasing a numbers slip or ticket. Participation in federally sponsored fund-raising activities conducted under section 3 of Executive Order No. 10927 of March 18, 1961, or in similar EPA-approved activities, is not precluded.

(d) General conduct prejudicial to the Government.-Employees shall not engage in criminal, infamous, dishonest, immoral, or disgraceful conduct, or any other conduct prejudicial to the Government.

(e) Statutory prohibitions relating to gifts and decorations.—(1) An employee shall not solicit a contribution from another employee for a gift to an official superior, make a donation as a gift to an official superior, or accept a gift presented as a contribution from an employee receiving less salary than himself (5 U.S.C. 7351). This includes service, merchandise, loan, or other thing of value. However, this paragraph (e) does not prohibit a voluntary gift of nominal value or a donation in a nominal amount made on a special occasion such as marriage, illness or death, or retirement.

(2) An employee shall not accept a gift, present, decoration, or other thing