EPA Part 2 Section 107
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
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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 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 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
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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 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 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.
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(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 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).
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