[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR2.104]
[Page 27-29]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 2_PUBLIC INFORMATION--Table of Contents
Subpart A_Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec. 2.104 Responses to requests and appeals.
(a) Unless the Agency and the requester have agreed otherwise, or
when unusual circumstances exist as provided in paragraph (e) of this
section, EPA offices will respond to requests no later than 20 working
days from the date the request is received and logged in by the
appropriate FOI Office. EPA will ordinarily respond to requests in the
order in which they were received. If EPA fails to respond to your
request within the 20 working day period, or any authorized extension of
time, you may seek judicial review to obtain the records without first
making an administrative appeal.
(b) On receipt of a request, the FOI Office ordinarily will send a
written acknowledgment advising you of the date it was received and of
the processing number assigned to the request for future reference.
(c) Multitrack processing. The Agency uses three or more processing
tracks by distinguishing between simple and complex requests based on
the amount of work and/or time needed to process the request, including
limits based on the number of pages involved. The Agency will advise you
of the processing track in which your request has been placed and of the
limits of the different processing tracks. The Agency may place your
request in its slower track(s) while providing you the opportunity to
limit the scope of your request in order to qualify for faster
processing within the specified limits of the faster track(s). If your
request is placed in a slower track, the Agency will contact you either
by telephone or by letter, whichever is most efficient in each case.
(d) Unusual circumstances. When the statutory time limits for
processing a request cannot be met because of ``unusual circumstances,''
as defined in the FOIA, and the time limits are extended on that basis,
you will be notified in writing, as soon as practicable, of the unusual
circumstances and of the date by which processing of the request should
be completed. When the extension is for more than 10 working days, the
Agency will provide you with an opportunity either to modify the request
so that it may be processed within the 10 working day time limit
extension or to arrange an alternative time period for processing the
original or modified request.
(e) Expedited processing. (1) Requests or appeals will be taken out
of order and given expedited treatment whenever EPA determines that such
requests or appeals involve a compelling need, as follows:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
Federal government activity, if the information is requested by a person
primarily engaged in disseminating information to the public.
(2) A request for expedited processing must be made at the time of
the initial request for records or at the time of appeal.
(3) If you are seeking expedited processing, you must submit a
statement, certified to be true and correct to the best of your
knowledge and belief, explaining in detail the basis for the request.
For example, if you fit within the category described in paragraph
(e)(1)(ii) of this section and are not a full-time member of the news
media, you must establish that you are a person whose primary
professional activity or occupation is information dissemination,
although it need not be your sole occupation. If you fit within the
category described in paragraph (e)(1)(ii) of this section, you must
also establish a particular urgency to inform the public about the
government activity involved in the request, beyond the public's right
to know about government activity generally.
(4) Within 10 calendar days from the date of your request for
expedited processing, the head of the Headquarters FOI Staff or Regional
FOI Officer will
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decide whether to grant your request and will notify you of the
decision. If your request for expedited treatment is granted, the
request will be given priority and will be processed as soon as
practicable. If your request for expedited processing is denied, any
appeal of that decision will be acted on expeditiously.
(f) Grants of requests. Once an office makes a determination to
grant a request in whole or in part, it will release the records or
parts of records to you and notify you of any applicable fee charged
under Sec. 2.107. Records released in part will be annotated, whenever
technically feasible, with the applicable FOIA exemption(s) at that part
of the record from which the exempt information was deleted.
(g) Adverse determinations of requests. Once the Agency makes an
adverse determination of a request, the requestor will be notified of
that determination in writing. An adverse determination consists of a
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that what has been requested is not a record
subject to the FOIA; a determination on any disputed fee matter,
including a denial of a request for a fee waiver; or a denial of a
request for expedited treatment.
(h) Initial denials of requests. The Deputy Administrator, Assistant
Administrators, Regional Administrators, the General Counsel, the
Inspector General, Associate Administrators, and heads of headquarters
staff offices are delegated the authority to issue initial
determinations. However, the authority to issue initial denials of
requests for existing, located records (other than initial denials based
solely on Sec. 2.204(d)(1)) may be redelegated only to persons
occupying positions not lower than division director or equivalent. Each
letter will include:
(1) The name and title or position of the person responsible for the
denial;
(2) A brief statement of the reason(s) for the denial, including an
identification of records being withheld (individual, or if a large
number of similar records are being denied, by described category), and
any FOIA exemption applied by the office in denying the request;
(3) An estimate of the volume of records or information withheld, in
number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through annotated deletions on records disclosed in part, or
if providing an estimate would harm an interest protected by an
applicable exemption; and
(4) A statement that the denial may be appealed under, and a
description of the requirements of, paragraph (j) of this section.
(i) Denial of fee waiver. The letter denying a request for a fee
waiver or expedited treatment will be signed by the head of the
Headquarters FOI Staff or Regional FOI Officers.
(j) Appeals of adverse determinations. If you are dissatisfied with
any adverse determination of your request by an office, you may appeal
that determination to the Headquarters Freedom of Information Staff,
Records, Privacy and FOIA Branch, Office of Information Collection,
Office of Environmental Information, Environmental Protection Agency,
1200 Pennsylvania Avenue (2822T), NW., Washington, DC 20460; e-mail:
hq.foia@epa.gov. The appeal must be made in writing, and it must be
submitted to the Headquarters FOI Staff no later than 30 calendar days
from the date of the letter denying the request. The Agency will not
consider appeals received after the 30-day limit. The appeal letter may
include as much or as little related information as you wish, as long as
it clearly identifies the determination being appealed (including the
assigned FOIA request number, if known). For quickest possible handling,
the appeal letter and its envelope should be marked ``Freedom of
Information Act Appeal.'' Unless the Administrator directs otherwise,
the General Counsel or his/her designee will act on behalf of the
Administrator on all appeals under this section, except that:
(1) In the case of an adverse initial determination by the General
Counsel or his/her designee, the Administrator or his/her designee will
act on the appeal;
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(2) The Counsel to the Inspector General will act on any appeal
where the Inspector General or his/her designee has made the initial
adverse determination; however, if the Counsel to the Inspector General
has signed the initial adverse determination, the General Counsel or
his/her designee will act on the appeal;
(3) An adverse determination by the Administrator on an initial
request will serve as the final action of the Agency; and
(4) If a requester seeks judicial review because the Agency has not
responded in a timely manner, any further action on an appeal will take
place through the lawsuit.
(k) The decision on your appeal will be made in writing, normally
within 20 working days of its receipt by the Headquarters Freedom of
Information Staff. A decision affirming an adverse determination in
whole or in part will contain a statement of the reason(s) for the
decision, including any FOIA exemption(s) applied, and inform you of the
FOIA provisions for judicial review of the decision. If the adverse
determination is reversed or modified on appeal, you will be notified in
a written decision. This written decision will either have the requested
information that has been determined on appeal to be releasable attached
to it, or your request will be returned to the appropriate office so
that it may be reprocessed in accordance with the appeal decision.
(l) If you wish to seek judicial review of any adverse
determination, you must first appeal that adverse determination under
this section, except when EPA has not responded to your request within
the statutory 20 working day time limit. In such cases, you may seek
judicial review without making an administrative appeal.
