[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: 40CFR2.107]
[Page 30-35]
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. 2.107 Fees.
(a) In general. The Agency will charge for processing requests under
the FOIA in accordance with paragraph (c) of this section, except where
fees are limited under paragraph (d) of this section or where a waiver
or reduction of fees is granted under paragraph (l) of this section.
Requesters will pay fees by check or money order made payable to the
U.S. Environmental Protection Agency.
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his/her
commercial, trade, or profit interests, which can include furthering
those interests through litigation. FOI Officers will determine,
whenever reasonably possible, the use to which a requester will put the
requested records. When it appears that the requester will put the
records to a commercial use, either because of the nature of the request
itself or because an office has reasonable cause to doubt a requester's
stated use, the FOI Officer will provide the requester a reasonable
opportunity to submit further clarification.
(2) Direct costs means those expenses that the Agency actually
incurs in searching for and duplicating (and, in the case of commercial
use requests, reviewing) records to respond to a FOIA request. Direct
costs include, for example, the salary of the employee performing the
work and the cost of operating duplication equipment. Not included in
direct costs are overhead expenses such as the costs of space and
heating or lighting of the facility in which the records are kept.
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape, disk, or compact disk),
among others. The Agency will honor a requester's specified preference
of form or format of disclosure if the record is readily reproducible
with reasonable efforts in the requested form or format.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education,
that operates a program of scholarly research. To be in this category, a
requester must show that the request is authorized by, and is made under
the auspices of, a qualifying institution and that the records are not
sought for a commercial use but are sought to further scholarly
research.
(5) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific
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research which is not intended to promote any particular product or
industry. To be in this category, a requester must show that the request
is authorized by, and is made under the auspices of, a qualifying
institution and that the records are not sought for a commercial use but
are sought to further scientific research.
(6) Representative of the news media or news media requester means
any person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or that would be of
current interest to the public. Examples of news media include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only in those instances where they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. For ``freelance''
journalists to be regarded as working for a news organization, they must
demonstrate a solid basis for expecting publication through that
organization. A publication contract would be the clearest proof, but
FOI Officers will also look to the past publication record of a
requester in making this determination. To be in this category, a
requester must not be seeking the requested records for a commercial
use. A request for records supporting the news-dissemination function of
the requester will not be considered to be for a commercial use.
(7) Review means the examination of a record located in response to
a request in order to determine whether any portion of it is exempt from
disclosure. It also includes processing any record for disclosure (for
example, doing all that is necessary to redact it and prepare it for
disclosure). Review costs are recoverable even if a record ultimately is
not disclosed. Review time includes time spent considering any formal
objection to disclosure made by a business submitter requesting
confidential treatment, but does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(8) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Offices will ensure
that searches are done in the most efficient and least expensive manner
reasonably possible. For example, offices will not search line-by-line
where duplicating an entire document would be quicker and less
expensive.
(c) Fees to be charged. (1) There are four categories of requests.
Fees for each of these categories will be charged as follows:
(i) Commercial use requests. A requester seeking access to records
for a commercial use will be charged for the time spent searching for
the records, reviewing the records for possible disclosure, and for the
cost of each page of duplication. The charges for searching for and/or
reviewing the records may be charged even if no responsive records are
found or if the records are located but are determined to be exempt from
disclosure.
(ii) Educational or non-commercial scientific requests. Requesters
from educational or scientific institutions, whose purpose is scholarly,
noncommercial research, will be charged only for the cost of record
duplication, except that the first 100 pages of duplication will be
furnished at no charge.
(iii) News media requests. Requesters who are representatives of the
news media, and whose purpose in seeking records is noncommercial, will
be charged only for the cost of duplication, except that the first 100
pages of duplication will be furnished at no charge.
(iv) All other requests. Requesters not covered by one of the three
categories above will be charged for the full cost of search and
duplication, except that the first two hours of search time and the
first 100 pages of duplication will be furnished without charge. The
charges for searching for the records will be assessed even if no
responsive records are found or if the records are located but are
determined to be exempt from disclosure.
(2) In responding to FOIA requests, the Agency will charge the
following
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fees unless a waiver or reduction of fees has been granted under
paragraph (l) of this section:
(i) Search. (A) Search fees will be charged for all requests except
for those made by educational institutions, noncommercial scientific
institutions, or representatives of the news media subject to the
limitations of paragraph (d) of this section. Offices will charge for
time spent searching even if no responsive records are found or if the
records are located but are determined to be exempt from disclosure.
(B) For searches and retrievals of requested records, either
manually or electronically, conducted by clerical personnel, the fee
will be $4.00 for each quarter hour of time. For searches and retrievals
of requested records, either manually or electronically, requiring the
use of professional personnel, the fee will be $7.00 for each quarter
hour of time. For searches and retrievals of requested records, either
manually or electronically, requiring the use of managerial personnel,
the fee will be $10.25 for each quarter hour of time.
(C) When searches and retrievals are conducted by contractors,
requesters will be charged for the actual charges up to but not
exceeding the rate which would have been charged had EPA employees
conducted the search. The costs of actual computer resource usage in
connection with such searches will also be charged, to the extent they
can be determined.
(ii) Duplication. Duplication fees will be charged to all
requesters, subject to the limitations of paragraph (d) of this section.
For either a photocopy or a computer-generated printout of a record (no
more than one copy of which need be supplied), the fee will be fifteen
(15) cents per page. For electronic forms of duplication, other than a
computer-generated printout, offices will charge the direct costs of
that duplication. Such direct costs will include the costs of the
requested electronic medium on which the copy is to be made and the
actual operator time and computer resource usage required to produce the
copy, to the extent they can be determined.
(iii) Review. Review fees will be charged only to requesters who
make a commercial use request. Review fees will be charged only for the
initial record review (that is, the review done when an office is
deciding whether an exemption applies to a particular record or portion
of a record at the initial request level). No charge will be made for
review at the administrative appeal level for an exemption already
applied. However, records or portions of records withheld under an
exemption that is subsequently determined not to apply may be reviewed
again to determine whether any other exemption not previously considered
applies; the costs of that review will be charged when it is made
necessary by a change of circumstances. Review fees will be charged at
the same rates as those charged for a search under paragraph (c)(1)(i)
of this section.
(d) Limitations on charging fees. (1) No search or review fees will
be charged for requests by educational institutions, noncommercial
scientific institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use,
offices will provide without charge:
(i) The first 100 pages of duplication, and
(ii) The first two hours of search.
(4) Whenever a total fee calculated under paragraph (c) of this
section is $14.00 or less for any request, no fee will be charged.
(5) The provisions of paragraphs (d)(3) and (4) of this section work
together. This means that for requesters other than those seeking
records for a commercial use, no fee will be charged unless the cost of
search in excess of two hours plus the cost of duplication in excess of
100 pages totals more than $14.00.
(e) Notice of anticipated fees in excess of $25.00. When the Agency
determines or estimates that the fees to be charged under this section
will amount to more than $25.00, the Agency will notify the requester of
the actual or estimated amount of the fees, unless the requester has
indicated a willingness to pay fees as high as those anticipated. The
amount of $25.00 is cumulative for
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multi-office requests. If only a portion of the fee can be estimated
readily, the Agency will advise the requester that the estimated fee may
be only a portion of the total fee. When a requester has been notified
that actual or estimated fees will amount to more than $25.00, EPA will
do no further work on the request until the requester agrees to pay the
anticipated total fee. This time will be excluded from the twenty (20)
working day time limit. EPA will memorialize any such agreement in
writing. A notice under this paragraph will offer the requester an
opportunity to discuss the matter with Agency personnel in order to
reformulate the request to meet the requester's needs at a lower cost.
(f) Charges for other services. Apart from the other provisions of
this section, when an office chooses as a matter of administrative
discretion to provide a special service-such as certifying that records
are true copies or sending records by other than ordinary mail-the
direct costs of providing the service ordinarily will be charged.
(g) Charging interest. EPA may charge interest on any unpaid bill
starting on the 31st day following the date of billing the requester.
Interest charges will be assessed at the rate provided in 31 U.S.C. 3717
and will accrue from the date of the billing until payment is received
by the Agency. EPA will follow the provisions of the Debt Collection Act
of 1982 (Pub. L. 97-365), as amended, and its administrative procedures,
including the use of consumer reporting agencies, collection agencies,
and offset. No penalty will be assessed against FOIA requesters for
exercising their statutory right to ask that a fee be waived or reduced
or to dispute a billing. If a fee is in dispute, penalties will be
suspended upon notification.
(h) Delinquent requesters. If requesters fail to pay all fees within
60 calendar days of the fees assessment, they will be placed on a
delinquency list. Subsequent FOIA requests will not be processed until
payment of the overdue fees has first been made.
(i) Aggregating requests. When the Agency reasonably believes that a
requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, the Agency may aggregate those requests and charge accordingly.
The Agency may presume that multiple requests of this type made within a
30-day period have been made in order to avoid fees. When requests are
separated by a longer period, the Agency will aggregate them only if
there exists a solid basis for determining that aggregation is warranted
under all the circumstances involved. Multiple requests involving
unrelated matters will not be aggregated.
(j) Advance payments. (1) For requests other than those described in
paragraphs (j)(2) and (3) of this section, an office will not require
the requester to make an advance payment (that is, a payment made before
EPA begins or continues work on a request). Payment owed for work
already completed (that is, a prepayment before copies are sent to a
requester) is not an advance payment.
(2) When the Agency determines or estimates that a total fee to be
charged under this section will be more than $250.00, it may require the
requester to make an advance payment of an amount up to the amount of
the entire anticipated fee before beginning to process the request,
except when it receives a satisfactory assurance of full payment from a
requester that has a history of prompt payment.
(3) When a requester has previously failed to pay a properly charged
FOIA fee to the Agency within 30 calendar days of the date of billing,
the Agency may require the requester to pay the full amount due, plus
any applicable interest, and to make an advance payment of the full
amount of any anticipated fee, before the Agency begins to process a new
request or continues to process a pending request from that requester.
(4) When the Agency requires advance payment or payment due under
paragraph (j)(3) of this section, the request will not be considered,
and EPA will do no further work on the request until the required
payment is made.
(k) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any other statute
that specifically requires an agency to set and collect fees for
particular types of records. When
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records responsive to requests are maintained for distribution by
agencies operating such statutorily based fee schedule programs, EPA
will inform requesters of the steps for obtaining records from those
sources so that they may do so most economically.
(l) Waiver or reduction of fees. (1) Records responsive to a request
will be furnished without charge or at a charge reduced below that
established under paragraph (c) of this section when a FOI Office
determines, based on all available information, that disclosure of the
requested information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
(2) To determine whether the first fee waiver requirement is met,
FOI Offices will consider the following factors:
(i) The subject of the request: Whether the subject of the requested
records concerns ``the operations or activities of the government.'' The
subject of the requested records must concern identifiable operations or
activities of the Federal government, with a connection that is direct
and clear, not remote.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be as
likely to contribute to such understanding when nothing new would be
added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public is likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester's expertise in
the subject area and ability and intention to effectively convey
information to the public will be considered. It will be presumed that a
representative of the news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. FOI Offices will not
make value judgments about whether information that would contribute
significantly to public understanding of the operations or activities of
the government is ``important'' enough to be made public.
(3) To determine whether the second fee waiver requirement is met,
FOI Offices will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. FOI Offices will consider any commercial interest
of the requester (with reference to the definition of ``commercial use
request'' in paragraph (b)(1) of this section), or of any person on
whose behalf the requester may be acting, that would be furthered by the
requested disclosure. Requesters will be given an opportunity in the
administrative process to provide explanatory information regarding this
consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. FOI Offices ordinarily
will presume that
[[Page 35]]
when a news media requester has satisfied the public interest standard,
the public interest will be the interest primarily served by disclosure
to that requester. Disclosure to data brokers or others who merely
compile and market government information for direct economic return
will not be presumed to primarily serve the public interest.
(4) When only some of the requested records satisfy the requirements
for a waiver of fees, a waiver will be granted for only those records.
(5) Requests for the waiver or reduction of fees must address the
factors listed in paragraphs (k) (l)-(3) of this section, insofar as
they apply to each request. FOI Offices will exercise their discretion
to consider the cost-effectiveness of their investment of administrative
resources in deciding whether to grant waivers or reductions of fees and
will consult the appropriate EPA offices as needed. Requests for the
waiver or reduction of fees must be submitted along with the request.
(6) When a fee waiver request is denied, EPA will do no further work
on the request until it receives an assurance of payment or an appeal of
the fee waiver adverse determination is made and a final appeal
determination is made pursuant to Sec. 2.104(j).
