63020 Federal Register / Vol. 88, No. 177 / Thursday, September 14, 2023 / Rules and Regulations 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this rule 

will not result in such an expenditure, 

we do discuss the effects of this rule 

elsewhere in this preamble. 

F. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Directive 023–01, Rev. 1, associated 

implementing instructions, and 

Environmental Planning COMDTINST 

5090.1 (series), which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4370f), and have 

determined that this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule involves a 100 

yard radius safety zone around the USS 

MIDWAY lasting 2 hours during the 

U.S. ARMY’s parachute demonstration. 

It is categorically excluded from further 

review under paragraph L60(a) of 

Appendix A, Table 1 of DHS Instruction 

Manual 023–01–001–01, Rev. 1. A 

Record of Environmental Consideration 

supporting this determination is 

available in the docket. For instructions 

on locating the docket, see the 

ADDRESSES section of this preamble. 

G. Protest Activities 

The Coast Guard respects the First 

Amendment rights of protesters. 

Protesters are asked to call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

coordinate protest activities so that your 

message can be received without 

jeopardizing the safety or security of 

people, places, or vessels. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 46 U.S.C. 70034, 70051, 70124; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Department of Homeland Security Delegation 

No. 00170.1, Revision No. 01.3. 

■ 2. Add § 165.T11–130 to read as 

follows: 

§ 165.T11–130 Safety Zone; San Diego 

Bay, San Diego, California. 

(a) Location. The following area is a 

safety zone: all water surface to the 

bottom encompassing a 100-yard radius 

around USS MIDWAY. 

(b) Definitions. As used in this 

section, designated representative 

means a Coast Guard Patrol 

Commander, including a Coast Guard 

coxswain, petty officer, or other officer 

operating a Coast Guard vessel and a 

Federal, State, and local officer 

designated by or assisting the Captain of 

the Port Sector San Diego (COTP) in the 

enforcement of the safety zone. 

(c) Regulations. (1) Under the general 

safety zone regulations in subpart C of 

this part, you may not enter the safety 

zone described in paragraph (a) of this 

section unless authorized by the COTP 

or the COTP’s designated representative. 

(2) To seek permission to enter, 

contact the COTP or the COTP’s 

representative by VHF–FM Channel 21A 

or by telephone at 619–278–7033. Those 

in the safety zone must comply with all 

lawful orders or directions given to 

them by the COTP or the COTP’s 

designated representative. 

(d) Enforcement period. This section 

will be enforced from 10 a.m. to noon 

on September 18, 2023. 

Dated: September 8, 2023. 

J.W. Spitler, 

Captain, U.S. Coast Guard, Captain of the 

Port San Diego. 

[FR Doc. 2023–19870 Filed 9–13–23; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 2 

[OGC–2022–0885; FRL 5630–01–OGC] 

RIN 2025–AA38 

Freedom of Information Act 

Regulations Update; Phase II 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or Agency) finalizes 

revisions to the Agency’s regulations 

under the Freedom of Information Act 

(FOIA or Act). This action supports the 

Agency’s mission by updating the 

process by which the public may access 

information about EPA actions and 

activities. 

DATES: This rule is effective on 

November 13, 2023. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. OGC–2022–0885. All documents in 

the docket are listed on the http://

www.regulations.gov website. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available electronically 

through http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Christopher T. Creech, Office of General 

Counsel, U.S. Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW, (2310A), Washington, DC 20460; 

telephone, 202–564–4286; email, 

creech.christopher@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. General Information 

II. Background 

III. Summary of Provisions Finalized as 

Proposed 

IV. Summary of Changes From Proposal 

V. Statutory and Executive Orders Reviews 

I. General Information 

A. Does this action apply to me? 

This discussion is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This discussion 

includes the types of entities that EPA 

is now aware could potentially be 

regulated by this action. Other types of 

entities not included could also be 

regulated. To determine whether your 

entity is regulated by this action, you 

should carefully examine the 

applicability criteria found in 40 CFR 

part 2. If you have questions regarding 

the applicability of this action to a 

particular entity, consult the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

B. What action is the Agency taking? 

This action finalizes changes to EPA’s 

FOIA regulations at 40 CFR part 2. The 

changes alter the process by which 

individuals and entities request records 

from EPA under the Act. EPA makes 

changes to clarify certain provisions and 

align with the FOIA and with EPA and 

government-wide policy. 

In the 2019 ‘‘Freedom of Information 

Act Regulations Update,’’ 84 FR 30028, 

July 26, 2019 (Phase I Rule), EPA stated 

its intention to conduct a second 

rulemaking phase to make discretionary 

and modernizing changes. Consistent 

with that statement, EPA is finalizing 

the proposal published on November 

17. 2022 with certain changes. See 


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Freedom of Information Act Regulations 

Update; Phase II, 87 FR 68946. 

II. Background 

This action is the second phase in a 

two-phase process to update the 

Agency’s FOIA regulations. On June 26, 

2019, effective July 26, 2019, EPA 

issued the Phase I Rule to ‘‘bring EPA’s 

regulations into compliance with 

nondiscretionary provisions of the 

amended statute and reflect changes in 

the Agency’s organization, procedure, or 

practice.’’ 84 FR 30028. 

III. Summary of Provisions Finalized as 

Proposed 

Below is a summary of the provisions 

that EPA finalizes in the same form that 

they were proposed. 

A. Time for Response to Modification 

Request 

EPA adds a statement that requires a 

requester to modify a request within 20 

calendar days after an EPA notice that 

the request is not reasonably described. 

40 CFR 2.102(c) requires that requesters 

reasonably describe the records that 

they are seeking. EPA did, and 

continues to, provide requesters with an 

opportunity to discuss and modify a 

request that does not reasonably 

describe the records sought. Previously, 

however, there was no clear timeline for 

requesters to modify a request. If a 

requester sufficiently modifies the 

request to meet the requirements of 40 

CFR 2.102(c) within 20 calendar days, 

EPA will not close the request. 

B. Readability and Useful Information 

EPA reorganizes, but makes no 

substantive changes to, 40 CFR 2.100(a) 

by moving to separate paragraphs the 

sentences describing other regulations 

relevant to the release of information. 

EPA creates a new paragraph (f) in 

section 2.100 to direct the public to the 

Agency’s website (epa.gov/foia) for 

records made publicly available in 

compliance with 5 U.S.C. 

522(a)(2)(D)(ii)(II). 

EPA consolidates the provisions in 

EPA’s FOIA regulations that discuss the 

timing of EPA’s response to FOIA 

requests to simplify and accurately 

represent EPA’s obligations under the 

FOIA. This change combines into 

section 2.104(a) previous sections 

2.101(a)(4) and 2.102(a), and directly 

incorporates into section 2.104(a) the 

FOIA’s language on timing of response 

from 5 U.S.C. 552(a)(6)(A)(i). EPA also 

explains at section 2.104(f) that EPA 

will work with requesters to come to an 

agreement regarding alternative 

timeframes for processing the request 

when EPA provides notice pursuant to 

5 U.S.C. 552(a)(6)(B)(i) and (ii). 

EPA adds to section 2.104(a)(2) 

providing that a request submitted after 

5:00 p.m. Eastern Time is considered 

received on the next business day. This 

change states the corollary of the 

already existing and unchanged 

language stating that requests submitted 

before 5:00 p.m. are considered received 

on that business day. EPA modifies 

section 2.108(b) to state that appeals 

submitted after 5:00 p.m. Eastern Time 

are considered received on the next 

business day. 

C. Consistency With Government-Wide 

Policy 

EPA makes three changes, found at 

sections 2.106, 2.108(d)(3), and 

2.108(e)(1), which discuss the 

preservation of records, handling of 

appeals after FOIA litigation, and the 

contents of adverse administrative 

appeals decisions. 

EPA updates 40 CFR 2.107(b) to state 

that payments by check or money order 

should be made out to the Treasury of 

the United States. 

EPA revises all references to EPA’s 

electronic submission website, 

FOIAonline (www.FOIAonline.gov), to a 

more general location, EPA’s FOIA 

website (www.epa.gov/foia). EPA will 

identify for requesters the electronic 

submission platform’s new link on 

EPA’s FOIA website. 

D. 2019 Phase I Regulations 

EPA removes the clause in 40 CFR 

2.103(b) that described the phrase 

‘‘determinations required by 5 U.S.C. 

552(a)(6)(A).’’ 40 CFR 2.103(b) 

previously stated ‘‘[Listed positions 

within EPA] are authorized to make 

determinations required by 5 U.S.C. 

522(a)(6)(A), including to issue final 

determinations whether to release or 

withhold a record or a portion of a 

record on the basis of responsiveness or 

under one or more of the exemptions 

under the FOIA, and to issue ‘no 

records’ responses.’’ 40 CFR 2.103(b) 

now states that ‘‘[Listed positions 

within EPA] are authorized to make 

determinations required by 5 U.S.C. 

522(a)(6)(A).’’ 

EPA does not reinstate any methods 

of submission that EPA removed 

through the issuance of the 2019 FOIA 

Regulations Update. See 2019 FOIA 

Regulations Update, 84 FR 30028 at 

30030, July 26, 2019. EPA continues to 

accept FOIA requests through its FOIA 

submission website, an electronic 

submission website established 

pursuant to 5 U.S.C. 552(m), and U.S. 

Mail and overnight delivery sent to the 

National FOIA Office. 

E. General Processing Changes 

EPA changes the ‘‘ordinary’’ search 

cut-off date identified in section 

2.103(a) from the date the request was 

received to the date the Agency begins 

its search for responsive records. 

EPA adds a provision at 40 CFR 

2.107(l) that states EPA may aggregate 

FOIA requests when EPA reasonably 

believes that multiple requests— 

submitted either by a requester or by a 

group of requesters acting in concert— 

constitute a single request that would 

otherwise give rise to unusual 

circumstances and the requests involve 

related matters. 

EPA adds a provision at 40 CFR 

2.104(f) that states EPA may assign 

multiple tracking numbers to a request 

with distinct parts that will be 

processed by separate regions or 

program offices. EPA will notify the 

requester of the separate tracking 

numbers for the distinct parts of the 

request, which thereafter would be 

processed and responded to separately 

and will be provided with separate 

appeal rights on completion. 

EPA modifies the methods of 

submission of FOIA appeals, located at 

section 2.108(a), to match the methods 

of submission of FOIA requests. 

F. Fee Rates Update 

EPA establishes new fee rates, located 

at 40 CFR 2.107(f)(2)(ii) tied to the U.S. 

Office of Personnel and Management’s 

General Schedule (GS) scale. EPA now 

has two fee rates for Agency personnel 

time spent processing FOIA requests, 

one rate for grades GS–12 and below 

and a second rate for those with grades 

GS–13 and above. Both rates are 

adjusted for the value of benefits, 

expressed in quarter-hour rates, and 

rounded to the nearest $1 increment. As 

of the date of signature, the proposed 

rates would be calculated as explained 

below. 

Employees GS–12 and Below 

Average Quarter-Hour Rate of GS–9 Step 

1, GS–10 Step 1, GS–11 Step 1, and 

GS–12 Step 1 ($8.83) + Benefits (16% 

or $1.41) = $10.25 = (rounded to the 

nearest $1 increment) $10.00/quarter 

hour 

Employees GS–13 and Above 

Average Quarter-Hour Rate for GS–13 

Step 1, GS–14 Step 1, and GS–15 Step 

1 ($15.24) + Benefits (16% or $2.43) 

= $17.67 = (rounded to the nearest $1 

increment) $18.00/quarter-hour 

G. Minimum Fee Threshold 

EPA increases the minimum fee 

threshold, located at 40 CFR 2.107(g)(1), 

to an amount calculated by formula, 


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which, as of the publication of this rule 

is $250. That formula would apply a 

fourteen (14) times multiplier to the rate 

set in 40 CFR 2.107(e)(2)(ii)(B), rounded 

to the nearest $5 increment. As of the 

date of signature, the minimum fee 

threshold would be calculated as 

explained below. 

Fee rate listed in 40 CFR 

2.107(f)(2)(ii)(B) ($18.00) × 14 = $252 

= (rounded to the nearest $5 

increment) $250 

H. Automatic Agreement To Pay Fees 

EPA removes the provision specifying 

that a requester automatically agrees to 

pay up to $25 in fees when they submit 

a FOIA request. Because EPA raises the 

minimum fee threshold, EPA believes 

that an automatic agreement to fees at 

any amount at or above $250 may 

dissuade some requesters from 

submitting FOIA requests. 

I. Assurance of Payment Threshold 

EPA raises the assurance of payment 

threshold, located at 40 CFR 2.107(h)(1), 

to an amount calculated by formula, 

which, as of the publication of this rule 

is $250. When EPA estimates fees or 

accumulates actual fees equaling or 

exceeding the assurance of payment 

threshold, EPA seeks from a requester 

an assurance that the requester will pay 

the fees associated with the FOIA 

request. The formula would tie the 

assurance of payment threshold to the 

minimum fee threshold (40 CFR 

2.107(g)(1)). 

J. Advanced Payment Threshold 

EPA increases the advanced payment 

threshold, located at 40 CFR 2.107(h)(2), 

to an amount that would currently 

calculate to $450 and proposes a 

formula for calculating the advance 

payment threshold that will be selfescalating as EPA’s costs increase in 

future years. When EPA estimates fees 

or accumulates actual fees equaling or 

exceeding the advanced payment 

threshold, EPA may seek advanced 

payment from a requester of the 

estimated or actual fees associated with 

the FOIA request. 

Fee rate listed in proposed 40 CFR 

2.107(f)(2)(ii)(B) ($18.00) × 25 = $450 

K. Estimated or Actual Fee Assessment 

EPA adds language at 2.107(h)(5) 

explaining that EPA’s reassessment of 

actual or estimated fees may result in 

EPA re-seeking assurance of payment or 

advanced payment. This provision 

provides clarity and informs the public 

regarding EPA’s practices by describing 

a scenario where EPA has previously 

informed the requester of the amount of 

actual or estimated fees and, after 

further processing, EPA has updated its 

actual or estimated fee assessment. 

L. Failure To Pay Charged Fees 

EPA revises the provisions applicable 

to delinquent requesters. Previous EPA 

regulations discussed the failure to pay 

fees in several separate locations 

(previous sections 2.107(h) and (j). EPA 

consolidates these provisions into 40 

CFR 2.107(k). EPA also adds a sentence 

stating that the Agency may share 

information regarding delinquent 

requesters with other Federal agencies. 

IV. Summary of Changes From 

Proposal 

Below is a summary of the changes 

from what EPA proposed and what EPA 

finalizes today. 

A. Environmental Justice Expedited 

Processing Criteria 

EPA proposed, and here finalizes, a 

provision to allow requesters to seek 

expedited processing of their request if 

the records sought pertain to an 

environmental justice-related need and 

will be used to inform an affected 

community. 5 U.S.C. 552(a)(6)(E)(i) 

provides that EPA may issue regulations 

‘‘providing for expedited processing of 

requests for records (I) in cases in which 

the person requesting the records 

demonstrates a compelling need; and 

(II) in other cases determined by the 

agency.’’ (emphasis added). The Act 

defines what constitutes a ‘‘compelling 

need,’’ id. at section 552(a)(6)(E)(v), and 

does not limit the ‘‘other cases’’ that the 

Agency may determine merit expedited 

processing. 

EPA finalizes the proposed provision 

with two minor changes. EPA makes the 

first change to reflect a change in 

relevant descriptive language used in 

Executive Order 14096. EPA modifies 

the phrase ‘‘disproportionately high and 

adverse human health or environmental 

effects’’ to read ‘‘disproportionate and 

adverse human health or environment 

effects.’’ This change will ensure 

consistency with EPA policy but is not 

intended to have substantive impact on 

EPA’s implementation on the 

environmental justice-need expedited 

processing provision. 

EPA makes the second change to 

improve the readability of the 

environmental justice expedited 

processing criteria. EPA reorganizes but 

does not substantively change 40 CFR 

2.107(g)(ii). As proposed, the provision 

specified considerations in both 

2.107(g)(ii) and in the subsequent 

subparagraphs. The reorganization 

identifies in a list format the specific 

elements EPA will consider. EPA 

believes that this change is clearer than 

the proposal and will benefit requesters 

by providing a set of elements that flow 

in a logical and express manner. 

The provision providing expedited 

processing for an environmental justicerelated need is in addition to and does 

not modify the provision granting 

expedited processing for requests 

demonstrating a ‘‘compelling need,’’ 

which the FOIA provides at 5 U.S.C. 

552(a)(6)(E)(i)(I). This new expedited 

processing category targets a recognized 

need for communities with 

environmental justice concerns to have 

timely access to information. 

Executive Order 14096 defines 

environmental justice as ‘‘the just 

treatment and meaningful involvement 

of all people, regardless of income, race, 

color, national origin, Tribal affiliation, 

or disability, in agency decision-making 

and other Federal activities that affect 

human health and the environment[.]’’ 

EPA recognizes that timely access to 

information contained in EPA records 

improves the opportunity for 

meaningful involvement by 

communities with environmental justice 

concerns. 

To determine whether an application 

for expedited processing qualifies under 

this provision, the Agency will 

consider: (1) whether the requested 

records relate to actual or alleged 

Federal government activity, including 

Agency records containing 

environmental information or data; (2) 

the extent to which there is a pressing 

need to inform the community about the 

Federal government activity; (3) the 

extent to which the community is 

potentially experiencing 

disproportionate and adverse human 

health or environmental effects; and (4) 

the requester’s ability and intention to 

effectively convey the information to 

members of the community. 

EPA will use EJScreen as a source of 

facts to determine whether the 

community cited by the requester is 

potentially experiencing environmental 

justice concerns. As EPA previously 

explained in the preamble to the 

proposed rule, EJScreen is an 

environmental justice mapping and 

screening tool that provides EPA with a 

nationally consistent dataset and 

approach for combining environmental 

and demographic indicators into 

Environmental Justice indexes. 

EJScreen’s ‘‘Supplemental Indexes’’ are 

thirteen indexes calculated by combing 

a single environmental indicator and the 

supplemental demographic index. The 

Supplemental Indexes do not factor in 

racial status. EJScreen may also be a 

valuable tool for requesters to assess 

whether the community about which 

they are seeking records may be affected 


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by disproportionate and adverse human 

health or environmental effects. More 

information regarding EJScreen is 

available at this link: https://

www.epa.gov/ejscreen/environmentaljustice-indexes-ejscreen. EPA notes that 

it will consider additional information 

the requester provides if the additional 

information is not adequately reflected 

in the methods and tools available to the 

Agency, like EJScreen’s Supplemental 

Indexes, and the Agency is not 

otherwise prohibited from considering 

the information. 

One commenter suggested that EPA 

‘‘make[ ] clear that any criteria be 

applied flexibly and generously to 

accomplish the goals of this provision.’’ 

EPA acknowledges the commenter’s 

concern and will implement the 

provision consistent with the regulatory 

text. As such, EPA provides the 

following examples of types of requests 

that EPA would consider as evidencing 

a pressing need to inform a community 

potentially experiencing environmental 

justice-related concerns. 

—Requests for EPA-held data or 

communications that are reasonably 

likely to contain information that is 

directly relevant to an environmental 

harm affecting a community 

potentially experiencing 

environmental justice-related 

concerns. 

—Requests for information about or 

relevant to an action or policy, 

existing or in development, that is 

reasonably likely to have a direct, 

imminent, and cognizable connection 

to a threat to human health in a 

community experiencing 

environmental justice-related 

concerns. 

On the other hand, EPA would not 

consider the following types of requests 

to show a pressing need to inform the 

community. 

—Requests for information about a 

nation-wide action or policy, either 

existing or in development, that is 

largely only of general interest to the 

public. 

—Requests for environmental data 

without a direct and cognizable 

connection to the community. 

—Requests for information that is 

primarily in the commercial interest 

of the requester. 

—Requests for communications which 

are not reasonably likely to contain 

information related to the community. 

—Requests for wholly publicly available 

information. 

—Requests for information about an 

environmental concern not affecting 

or not reasonably likely to affect the 

community. 

One commenter suggested that EPA 

remove the evaluation criteria regarding 

the requester’s intent and ability to 

effectively convey the information to 

members of the community that is 

potentially experiencing 

disproportionate and adverse human 

health or environmental effects. EPA 

declines to make this change. The 

purpose of considering the requesters 

intent and ability to effectively convey 

the information to members of the 

community is to ensure that those 

seeking the information can and are 

likely to meet the information needs of 

members of the community. EPA 

believes that this consideration is 

essential to both the purpose and 

effective implementation of the 

provision. 

For clarity on how EPA intends to 

implement the ‘‘ability and intention’’ 

element, EPA provides the following 

examples that EPA would consider as 

evidencing an ability and intent to 

inform the community potentially 

experiencing environmental justicerelated concerns: 

—The requester is a membership or 

community-based organization with 

active members in the community and 

that disseminates environmental- or 

health-related information to those 

members. 

—The requester is a news organization 

with active subscribers in the 

community and that disseminates 

environmental- or health-related 

information to those subscribers. 

—The requester has demonstrated a 

particular technical expertise in the 

subject area and has previously 

directly disseminated information to 

the community or similar 

communities. 

EPA would consider the following 

types of requests to not show an intent 

and ability to inform the community 

potentially experiencing environmental 

justice-related concerns: 

—The requester’s stated ability to 

disseminate the information to the 

community is limited to passive or 

indirect means (e.g., dissemination 

through a website, newsletter, or other 

publication without indication of 

directly reaching members of the 

community). 

—A requester without either a direct 

connection to the community or a 

demonstrated expertise in the subject 

matter. 

—A requester without a direct 

connection to the community and 

without a mission and history of 

disseminating information to the 

community. 

—The Agency may consider previous 

failures to disseminate to the 

community information a requester 

received from EPA through an 

expedited request for records. 

B. Definition of Reasonably Described 

Requests 

EPA proposed modifying previous 

section 2.102(c) to state that ‘‘Requesters 

should reasonably describe the records 

sought in sufficient detail to enable 

agency personnel to locate them with a 

reasonable amount of effort.’’ One 

commenter suggested to use alternative 

language from Truitt v. Department of 

State. See 897 F.2d 540 (D.C. Cir. 1990). 

EPA agrees with the comment and 

changes the sentence, which is now 

located at section 2.102(b)(1), to state 

that ‘‘Requesters must reasonably 

describe the records sought in sufficient 

detail to enable a professional employee 

of the agency who is familiar with the 

subject area of the request to locate the 

records with reasonable amount of 

effort.’’ See Truitt v. Dep’t of State, 897 

F.2d 540, 545 n.36 (D.C. Cir. 1990), 

quoting H.R. Rep. No. 93–876, 93d 

Cong., 2d Sess. 5–6 (1974). 

C. Requests for Waiver and Reduction of 

Fees 

EPA proposed to incorporate a 

requirement that a requester must 

submit a statement, certified to be true 

and correct to the best of the requester’s 

knowledge and belief, explaining in 

detail the basis for the fee waiver 

request. EPA does not finalize that 

proposed provision at this time. 

D. Language Referring to Appeal Letter 

EPA received one comment about the 

use of the term ‘‘appeal letter’’ in the 

section of the regulations discussing 

administrative appeals, 40 CFR 2.108. 

The comment stated that the use of the 

word ‘‘letter’’ was misleading and 

implied that physical mail is suggested 

or preferred for purposes of appeal. 

Dropping the term ‘‘letter’’ would 

provide clarity to requesters. EPA 

reviewed the use of the word ‘‘letter’’ 

and related terms and updated 40 CFR 

2.108(c). These changes have no 

substantive impact on EPA or the public 

and are meant solely for clarity. 

E. Grammatical Edit 

EPA received one comment noting 

that the hyphen is not needed in the 

phrase ‘‘90-calendar days’’ and should 

be removed. EPA agrees with the 

commentor will make the suggested 

change at 40 CFR 2.108(a). 


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V. Statutory and Executive Orders 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was therefore not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, EPA concludes that the 

impact of concern for this rule is any 

significant adverse economic impact on 

small entities and that the agency is 

certifying that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

because the rule has no net burden on 

the small entities subject to the rule. 

This final rule does not impose any new 

requirements on small entities, and the 

EPA FOIA regulation’s requirements 

apply equally to all FOIA requesters. 

This rule raises the FOIA fee rates, 

which EPA applies when EPA charges 

for the direct costs of EPA staff’s time. 

This change does not represent a 

significant economic impact and any 

impact will be offset by increasing the 

minimum fee threshold. If EPA does not 

accumulate chargeable fees in an 

amount above the minimum fee 

threshold, then EPA does not charge 

fees. We have therefore concluded that 

this action will have no net regulatory 

burden for all directly regulated small 

entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandates as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. It will not have substantial 

direct effects on Indian Tribal 

governments or on the relationship 

between the national government and 

the Indian Tribal governments. Thus, 

Executive Order 13175 does not apply 

to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211 because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This rule does not involve technical 

standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) directs Federal 

agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations (people of color) and lowincome populations. 

The EPA believes that this type of 

action does not concern human health 

or environmental conditions and 

therefore cannot be evaluated with 

respect to potentially disproportionate 

and adverse effects on people of color, 

low-income populations and/or 

indigenous peoples. Although this 

action does not concern human health 

or environmental conditions, the EPA 

identifies and addresses environmental 

justice concerns by finalizing a 

provision to allow requesters to seek 

expedited processing of their request if 

the records sought pertain to an 

environmental justice-related need and 

will be used to inform an affected 

community. See section IV.A. of this 

preamble. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 2 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Freedom of information, Government 

employees. 

Michael S. Regan, 

Administrator. 

For the reasons set forth in the 

preamble, the EPA amends title 40 of 

the Code of Federal Regulations, part 2 

as follows: 

PART 2—PUBLIC INFORMATION 

■ 1. The authority citation for part 2 

continues to read as follows: 

Authority: 5 U.S.C. 552, 552a, 553; 28 

U.S.C. 509, 510, 534; 31 U.S.C. 3717. 

■ 2. Subpart A of Part 2 is revised to 

read as follows: 

PART 2—PUBLIC INFORMATION 

Subpart A—Procedures for Disclosure of 

Records Under the Freedom of Information 

Act 

Sec. 

2.100 General provisions. 

2.101 Where to file requests for records. 

2.102 Procedures for making requests. 

2.103 Responsibility for responding to 

requests. 

2.104 Responses to requests. 

2.105 [Reserved] 

2.106 Preservation of records. 

2.107 Fees. 

2.108 Administrative appeals. 

2.109 Other rights and services. 

Subpart A—Procedures for Disclosure 

of Records Under the Freedom of 

Information Act 

§ 2.100 General provisions. 

(a) General. This subpart contains the 

rules that the Environmental Protection 


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Agency (EPA or Agency) follows in 

processing requests for records under 

the Freedom of Information Act (FOIA), 

5 U.S.C. 552. Information routinely 

provided to the public as part of a 

regular EPA activity may be provided to 

the public without following this 

subpart. 

(b) Other regulatory provisions. (1) 

Subpart B of this part contains 

requirements pertaining to the 

confidentiality of business information. 

(2) 40 CFR part 16 contains 

requirements pertaining to Privacy Act 

requests. 

(c) Statutory-based fee schedule 

programs. EPA will inform the requester 

of the steps necessary to obtain records 

from agencies operating statutory-based 

fee schedule programs, such as, but not 

limited to, the Government Printing 

Office or the National Technical 

Information Service. 

(d) National FOIA Office. The Chief 

FOIA Officer designates the office that 

performs the duties of the National 

FOIA Office. The National FOIA Office 

reports to the Chief FOIA Officer. 

(e) FOIA Public Liaison. The Chief 

FOIA Officer designates the FOIA 

Public Liaisons. The FOIA Public 

Liaisons report to the Chief FOIA 

Officer. A FOIA Public Liaison is 

responsible for assisting in reducing 

delays, increasing transparency and 

understanding of the status of requests, 

and assisting in the resolution of 

disputes. A FOIA Public Liaison is an 

official to whom a requester can raise 

concerns about the service the requester 

received from the FOIA Requester 

Service Center. The public can find 

more information about the FOIA Public 

Liaisons at EPA’s website. 

(f) Other record availability. Records 

required by FOIA to be made available 

for public inspection and copying are 

accessible through EPA’s FOIA website, 

http://www.epa.gov/foia. EPA also 

proactively discloses records and 

information through the Agency’s 

website, www.epa.gov. 

§ 2.101 Where to file requests for records. 

(a) Requesters must submit all 

requests for records from EPA under the 

FOIA in writing and by one of the 

following methods: 

(1) EPA’s FOIA submission website, 

linked to at www.epa.gov/foia; 

(2) An electronic government 

submission website established 

pursuant to 5 U.S.C. 552(m), such as 

FOIA.gov; 

(3) U.S. Mail sent to the following 

address: National FOIA Office, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW (2310A), 

Washington, DC 20460; or 

(4) Overnight delivery service to 

National FOIA Office, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania NW, Room 7309C, 

Washington, DC 20460. 

(b) EPA will not treat a request 

submitted by any method other than 

those listed in § 2.101(a) as a FOIA 

request, and the Agency will not reroute such a request. 

(c) The requester or requester 

organization must include the full name 

of their point of contact and their 

mailing address for EPA to process the 

request. For all requests, requesters 

should provide an email address and 

daytime telephone number whenever 

possible. For requests submitted 

through EPA’s FOIA submission website 

or as provided by an electronic 

government submission website 

established pursuant to 5 U.S.C. 552(m), 

requesters must include an email 

address. For requests submitted through 

U.S. Mail, the requester must mark both 

the request letter and envelope 

‘‘Freedom of Information Act Request.’’ 

(d) EPA provides access to all records 

that the FOIA requires an agency to 

make regularly available for public 

inspection and copying. Each office is 

responsible for determining which of 

the records it generates are required to 

be made publicly available and for 

providing access by the public to them. 

The Agency will also maintain and 

make available for public inspection 

and copying a current subject matter 

index of such records and provide a 

copy or a link to the respective website 

for Headquarters or the Regions. Each 

index will be updated regularly, at least 

quarterly, with respect to newlyincluded records. 

(e) All records created by EPA on or 

after November 1, 1996, which the FOIA 

requires an agency to make regularly 

available for public inspection and 

copying, will be made available 

electronically through EPA’s website, 

located at http://www.epa.gov, or, upon 

request, through other electronic means. 

EPA will also include on its website the 

current subject matter index of all such 

records. 

§ 2.102 Procedures for making requests. 

(a) EPA employees may attempt in 

good faith to comply with oral requests 

for inspection or disclosure of EPA 

records that are publicly available under 

§ 2.201(a) and (b), but such requests are 

not subject to the FOIA or this Part. 

(b)(1) Requesters must reasonably 

describe the records sought in sufficient 

detail to enable a professional employee 

of the Agency who is familiar with the 

subject area of the request to locate the 

records with a reasonable amount of 

effort. 

(2) If EPA determines that a request 

does not reasonably describe the 

requested records as provided in 

§ 2.102(b)(1), EPA will tell the requester 

either what additional information the 

requester needs to provide or why the 

request is otherwise insufficient. EPA 

will also give the requester an 

opportunity to discuss and modify the 

request to meet the requirements of 

§ 2.102(b)(1). If the requester fails to 

modify the request to meet the 

requirements of § 2.102(b)(1) within 20 

calendar days, EPA will not process the 

submission and close the request. If the 

requester does modify the request to 

meet the requirements of § 2.102(b)(1), 

EPA will consider the request received 

as of the date the modification is 

received by EPA. 

(3) Whenever possible, a request 

should include specific information 

about each record sought, such as the 

date, title or name, author, recipient, 

and subject matter. If known, the 

requester should include any file 

designations or descriptions for the 

records that the requester wants. The 

more specific the requester is about the 

records or type of records that the 

requester wants, the more likely EPA 

will be able to identify and locate 

records responsive to the request. 

§ 2.103 Responsibility for responding to 

requests. 

(a) In general. Upon receipt of a FOIA 

request under § 2.101(a), the National 

FOIA Office will assign the request to an 

appropriate office within the Agency for 

processing. To determine which records 

are within the scope of a request, an 

office will ordinarily include only those 

records in the Agency’s possession as of 

the date that the Agency begins its 

search. The Agency will inform the 

requester if any other date is used. 

(b) Authority to issue final 

determinations. The Administrator, 

Deputy Administrators, Assistant 

Administrators, Deputy Assistant 

Administrators, Regional 

Administrators, Deputy Regional 

Administrators, General Counsel, 

Deputy General Counsels, Regional 

Counsels, Deputy Regional Counsels, 

and Inspector General or those 

individuals’ delegates, are authorized to 

make determinations required by 5 

U.S.C. 552(a)(6)(A). 

(c) Authority to grant or deny fee 

waivers or requests for expedited 

processing. EPA’s Chief FOIA Officer or 

EPA’s Chief FOIA Officer’s delegates are 

authorized to grant or deny requests for 

fee waivers or requests for expedited 

processing. 


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(d) Consultations and referrals. When 

a request to EPA seeks records in EPA’s 

possession that originated with another 

Federal agency, the EPA office assigned 

to process the request shall either: 

(1) In coordination with the National 

FOIA Office, consult with the Federal 

agency where the record or portion 

thereof originated and then respond to 

the request, or 

(2) With the concurrence of the 

National FOIA Office, refer any record 

to the Federal agency where the record 

or portion thereof originated. The 

National FOIA Office will notify the 

requester whenever all or any part of the 

responsibility for responding to a 

request has been referred to another 

agency. 

(e) Law enforcement information. 

Whenever a requester makes a request 

for a record containing information that 

relates to an investigation of a possible 

violation of law and the investigation 

originated with another agency, the 

assigned office, with the concurrence of 

the National FOIA Office, will refer the 

record to that other agency or consult 

with that other agency prior to making 

any release determination. 

(f) Assigning tracking numbers. EPA 

may assign multiple tracking numbers 

to a FOIA request that contains 

unrelated parts that will be processed 

separately by multiple regions or 

headquarters program offices. 

§ 2.104 Responses to requests. 

(a) Timing of response. (1) Consistent 

with 5 U.S.C. 552(a)(6)(A) and upon any 

request for records made pursuant to 

this subpart, EPA shall determine 

within 20 working days after receipt of 

any such request whether to comply 

with such request and shall 

immediately notify the person according 

to this section. 

(2) A requester submitting a request 

electronically must do so before 5:00 

p.m. Eastern Time for the Agency to 

consider the request as received on that 

date, and a request submitted 

electronically at or after 5 p.m. Eastern 

Time will be considered received by the 

National FOIA Office on the next 

business day. 

(3) The timeframe for response may be 

extended if unusual circumstances exist 

per paragraph (f) of this section, 

including when EPA asserts unusual 

circumstances and arranges an 

alternative timeframe with the 

requester, or exceptional circumstances 

exist per paragraph (g) of this section. 

The timeframe for response may be 

tolled per paragraph (e) of this section. 

(b) Agency failure to respond. If EPA 

fails to respond to the request within the 

statutory time-period, or any authorized 

extension of time, the requester may 

seek judicial review to obtain the 

records without first making an 

administrative appeal. 

(c) Acknowledgment of request. On 

receipt of a request, the National FOIA 

Office ordinarily will send a written 

acknowledgment advising the requester 

of the date the Agency received the 

request and of the processing number 

assigned to the request for future 

reference. 

(d) Multitrack processing. The Agency 

uses three or more processing tracks by 

distinguishing between simple and 

complex requests based on the amount 

of work, time needed to process the 

request, or both, including limits based 

on the number of pages involved. The 

Agency will advise the requester of the 

processing track in which the Agency 

placed the request and the limits of the 

different processing tracks. The Agency 

may place the request in a slower track 

while providing the requester with the 

opportunity to limit the scope of the 

request to qualify for faster processing 

within the specified limits of a faster 

track. If the Agency places the request 

in a slower track, the Agency will 

contact the requester. 

(e) Tolling the request. EPA shall not 

toll the processing time-period except: 

(1) The Agency may toll the 

processing time-period one time while 

seeking clarification from the requester; 

or 

(2) The Agency may toll the 

processing time-period as many times as 

necessary to resolve fee issues. 

(f) Unusual circumstances. (1) When 

the Agency cannot meet statutory time 

limits for processing a request because 

of ‘‘unusual circumstances,’’ as defined 

in the FOIA, and the time limits are 

extended on that basis, the Agency will 

notify the requester in writing, as soon 

as practicable, of the unusual 

circumstances and of the date by which 

processing of the request should be 

completed. 

(2) If the 20 working-day period is 

extended, EPA will give the requester an 

opportunity to limit the scope of the 

request, modify the request, or agree to 

an alternative time-period for 

processing, as described by the FOIA. 

(3) EPA will provide contact 

information for its FOIA Public Liaison 

to assist in the resolution of any 

disputes between the requester and the 

Agency, and the Agency will notify the 

requester of their right to seek dispute 

resolution services from the Office of 

Government Information Services 

within the National Archives and 

Records Administration. 

(g) Expedited processing. (1) EPA will 

take requests or appeals out of order and 

give expedited treatment whenever EPA 

determines that such requests or appeals 

involve a compelling need, an 

environmental justice-related need, or 

both. 

(i) A compelling need is defined as 

either: 

(A) 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 

(B) 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. 

(ii) For purposes of this provision, an 

environmental justice-related need 

means a pressing need to inform a 

community that is potentially 

experiencing disproportionate and 

adverse human health or environmental 

effects. The Agency will consider: 

(A) Whether the requested records 

relate to actual or alleged Federal 

government activity, including Agency 

records containing environmental 

information or data. 

(B) The extent to which there is a 

pressing need to inform the community 

about the Federal government activity. 

A pressing need to inform does not 

include requests where the disclosure is 

primarily in the commercial interest of 

the requester. 

(C) The extent to which the 

community is potentially experiencing 

disproportionate and adverse human 

health or environmental effects. 

(D) The requester’s ability and 

intention to effectively convey the 

information to members of the 

community. 

(iii) If the Agency grants a request for 

expedited processing under paragraph 

(g)(1)(ii) of this section, the Agency will 

also waive fees established under 

§ 2.107(f) for the request. 

(2) Requesters must make a written 

request for expedited processing at the 

time of the initial request for records or 

at the time of appeal. 

(3) If the requester seeks expedited 

processing, the requester must submit a 

statement, certified to be true and 

correct to the best of the requester’s 

knowledge and belief, explaining in 

detail the basis for the request. 

(i) For example, if the requester fits 

within the category described in 

paragraph (g)(1)(i)(B) of this section and 

is not a full-time member of the news 

media, the requester must establish that 

they are a person whose primary 

professional activity or occupation is 

information dissemination, although it 


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need not be the requester’s sole 

occupation. 

(ii) If the requester fits within the 

category described in paragraph 

(g)(1)(i)(B) of this section, the requester 

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 the request for expedited 

processing, the Chief FOIA Officer, or 

the Chief FOIA Officer’s delegates, will 

decide whether to grant the request and 

will notify the requester of the decision. 

If the Agency grants the request for 

expedited processing, the Agency will 

give the request priority and will 

process the request as soon as 

practicable. If the Agency denies the 

request for expedited processing, the 

Agency will act on any appeal of that 

decision expeditiously. 

(h) Grants of requests. Once the 

Agency determines to grant a request in 

whole or in part, it will release the 

records or parts of records to the 

requester and notify the requester of any 

applicable fee charged under § 2.107. 

The office will annotate records released 

in part, whenever technically feasible, 

with the applicable FOIA exemption or 

exemptions at that part of the record 

from which the exempt information was 

deleted. 

(i) Adverse determinations of 

requests. When the Agency makes an 

adverse determination, the Agency will 

notify the requester of that 

determination in writing. Adverse 

determinations include: 

(1) A decision that the requested 

record is exempt from disclosure, in 

whole or in part; 

(2) A decision that the information 

requested is not a record subject to the 

FOIA; 

(3) A decision that the requested 

record does not exist or cannot be 

located; 

(4) A decision that the requested 

record is not readily reproducible in the 

form or format sought by the requester; 

(5) A determination on any disputed 

fee matter, including a denial of a 

request for a fee waiver; or 

(6) A denial of a request for expedited 

processing. 

(j) Content of final determination 

letter. The appropriate official will issue 

the final determination letter in 

accordance with § 2.103(b) and will 

include: 

(1) The name and title or position of 

the person responsible for the 

determination; 

(2) A brief statement of the reason or 

reasons for the denial, including an 

identification of records being withheld 

(either individually or, if a large number 

of similar records are being denied, 

described by 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; 

(4) A statement that an adverse 

determination may be appealed under 

§ 2.108 and description of the 

requirements for submitting an 

administrative appeal; and 

(5) A statement that the requester has 

the right to seek dispute resolution 

services from an EPA FOIA Public 

Liaison or the Office of Government 

Information Service. 

§ 2.105 [Reserved] 

§ 2.106 Preservation of records. 

The Agency will preserve all 

correspondence pertaining to the FOIA 

requests that it receives, as well as 

copies of all requested records, until 

disposition or destruction is authorized 

pursuant to title 44 of the United States 

Code or the National Archives and 

Records Administration’s General 

Records Schedule 4.2. Records shall not 

be disposed of while they are the subject 

of a pending request, appeal, or lawsuit 

under the FOIA. 

§ 2.107 Fees. 

(a) In general. The Agency will charge 

for processing requests under the FOIA 

in accordance with this section, except 

where fees are limited under paragraph 

(g) of this section or where a waiver or 

reduction of fees is granted under 

paragraph (n) of this section. 

(b) How to pay fees. Requesters must 

pay fees by check, money order, 

electronically at https://www.pay.gov/, 

to the Treasury of the United States. 

(c) Contractor rates. When any search, 

review, or duplication task is performed 

by a contractor, EPA will charge for staff 

time at the contractor’s actual pay rate, 

but not exceeding the rates set under 

paragraph (f)(2)(ii) of this section. 

(d) Rounding staff time. Billable staff 

time is calculated by rounding to the 

nearest quarter-hour. 

(e) Types of requests for fee purposes. 

For purposes of this section, the five 

types of request categories are defined 

in paragraphs (e)(1) through (5) of this 

section. These request categories will be 

charged for the types of fees as noted, 

subject to the restrictions in paragraph 

(g) of this section and unless a fee 

waiver has been granted under 

paragraph (n) of this section. Paragraph 

(f) of this section defines and explains 

how the Agency calculates each type of 

fee. 

(1) Commercial-use Request. (i) 

Commercial use request means a request 

from or on behalf of a person who seeks 

information for a use or purpose that 

furthers the requester’s commercial, 

trade, or profit interests, which can 

include furthering those interests 

through litigation. The Agency 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 the Agency has 

reasonable cause to doubt a requester’s 

stated use, the Agency will provide the 

requester a reasonable opportunity to 

submit further clarification. 

(ii) For a commercial-use request, the 

Agency will charge the requester for 

search, review, and duplication. 

(2) Educational institution request. (i) 

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 

eligible for inclusion in this category, 

requesters must show that the request is 

being made as authorized by and under 

the auspices of a qualifying institution 

and that the records are not sought for 

a commercial use, but are sought in 

furtherance of scholarly research. 

(ii) For an educational institution 

request, the Agency will charge the 

requester for duplication, except that 

the Agency will furnish the first 100 

pages of duplication at no charge. 

(3) Noncommercial scientific 

institution request. (i) Noncommercial 

scientific institution means an 

institution not operated on a 

‘‘commercial’’ basis, as defined in 

paragraph (e)(1) of this section, and that 

is operated solely for conducting 

scientific research that is not intended 

to promote any particular product or 

industry. To be eligible for inclusion in 

this category, requesters must show that 

the request is being made as authorized 

by and under the auspices of a 

qualifying institution and that the 

records are not sought for a commercial 


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use, but are sought in furtherance of 

scientific research. 

(ii) For a noncommercial scientific 

institution request, the Agency will 

charge the requester for duplication, 

except that the Agency will furnish the 

first 100 pages of duplication at no 

charge. 

(4) Representative of the news media 

requests. (i) Representative of the news 

media has the meaning provided at 5 

U.S.C. 552(a)(4)(A)(ii). 

(ii) For representative of the news 

media requests, the Agency will charge 

a requester for duplication, except that 

the Agency will furnish the first 100 

pages of duplication at no charge. 

(5) Other requests. (i) Other requesters 

are requesters that are not commercialuse requesters, educational institutions, 

noncommercial scientific institutions, 

or representatives of the news media. 

(ii) The Agency will charge other 

requesters for search and duplication, 

except that the Agency will furnish 

without charge the first two hours of 

search time and the first 100 pages of 

duplication. 

(f) Types of fees. Paragraphs (f)(1) 

through (4) of this section are 

definitions of the types of fees and 

explanations of how the Agency 

calculates each type of fee. 

(1) Direct costs. 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. 

(2) Search. (i) Search means the 

process of looking for and retrieving 

records or information responsive to a 

request. It includes page-by-page or lineby-line identification of information 

within records and 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. The Agency 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. 

(ii) Search fees will equal the direct 

costs of search. Personnel will bill their 

time at the following rates using the 

current Office of Personnel Management 

General Schedule (GS) pay table for 

Washington–Baltimore–Arlington, DC– 

MD–VA–WV–PA. The current 

calculations of these rates may be found 

at www.epa.gov/foia. 

(A) GS–12 level or below (or 

equivalent pay scale): The average of 

GS–9 to GS–12 (Step 5), plus 16 percent, 

rounded to the nearest $1 increment per 

quarter hour. 

(B) GS–13 level or above (or 

equivalent pay scale): The average of 

GS–13 to GS–15 (Step 5), plus 16 

percent, rounded to the nearest $1 

increment per quarter hour. 

(iii) For requests that require the 

retrieval of records stored by an agency 

at a Federal Records Center operated by 

NARA, additional costs will be charged 

in accordance with the Transactional 

Billing Rate Schedule established by 

NARA. 

(3) Review. (i) Review means the 

examination of a record located in 

response to a request 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. 

(ii) The Agency will charge review 

fees 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). 

The Agency will not charge for review 

at the administrative appeal level for an 

exemption already applied. However, 

the Agency may again review records or 

portions of records withheld under an 

exemption that the Agency 

subsequently determines not to apply to 

determine whether any other exemption 

not previously considered applies; the 

Agency will charge costs of that review 

when a change of circumstances makes 

it necessary. The Agency will charge 

review fees at the same rates as those 

charged for a search under paragraph 

(f)(2)(ii) of this section. 

(4) Duplication. (i) 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, disc, or compact disc), 

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. 

(ii) 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 computergenerated 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. The 

Agency will charge operator time at the 

same rates as those charged for search 

under paragraph (f)(2)(ii) of this section. 

(g) Limitations on charging fees. (1) 

The Agency will charge no fee when a 

total fee calculated under paragraph (c) 

of this section is less than fourteen 

times the rate in paragraph (f)(2)(ii)(B) of 

this section rounded to the nearest $5.00 

increment for any request. The current 

calculation of this threshold may be 

found at www.epa.gov/foia. 

(2) The restrictions in paragraphs 

(e)(1)(ii), (2)(ii), (3)(ii), (4)(ii), and (5)(ii) 

and minimum fee threshold in (g)(1) of 

this section work together. This means 

that for requesters other than those 

seeking records for a commercial use, 

the Agency will charge no fee unless the 

cost of search more than two hours plus 

the cost of duplication in excess of 100 

pages totals more than fourteen times 

the rate in paragraph 2.107(f)(2)(ii)(B) of 

this section rounded to the nearest $5.00 

increment. The current calculation of 

this threshold may be found at 

www.epa.gov/foia. 

(3) If EPA fails to comply with the 

FOIA’s time limits for responding to a 

request, EPA will not charge search fees, 

or, in the instance of requesters 

described in paragraphs (e)(2) through 

(4) of this section, duplication fees, 

except as follows: 

(i) If EPA determined that unusual 

circumstances as defined by the FOIA 

apply and the Agency provided timely 

written notice to the requester in 

accordance with the FOIA, a failure to 

comply with the time limit shall be 

excused for an additional 10 working 

days; 

(ii) If EPA determined that unusual 

circumstances as defined by the FOIA 

apply and more than 5,000 pages are 

necessary to respond to the request, EPA 

may charge search fees, or, in the case 

of requesters described in paragraphs 

(e)(2) through (4) of this section, may 

charge duplication fees, if the following 

steps are taken: EPA must have 


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provided timely written notice of 

unusual circumstances to the requester 

in accordance with the FOIA and the 

EPA must have discussed with the 

requester by written mail, email, or 

telephone (or made not less than three 

good-faith attempts to do so) how the 

requester could effectively limit the 

scope of the request in accordance with 

5 U.S.C. 552(a)(6)(B)(ii), which includes 

notification to the requester of the 

availability of the FOIA Public Liaison 

and the right to seek dispute resolution 

services from the Office of Government 

Information Services. If this exception is 

satisfied, EPA may charge all applicable 

fees incurred in the processing of the 

request; or 

(iii) If a court determines that 

exceptional circumstances exist, as 

defined by the FOIA, a failure to comply 

with the time limits shall be excused for 

the length of time provided by the court 

order. 

(h) Assurance of payment and 

advanced payment of fees. (1) If EPA 

determines that the actual or estimated 

fees exceed the amount in paragraph 

(g)(1) of this section, the Agency will 

notify the requester of the actual or 

estimated amount, toll the processing 

clock, and will do no further work on 

the request until the requester agrees in 

writing to pay the anticipated total fee. 

(2) If EPA determines that the actual 

or estimated fees exceed twenty-five 

times the amount in paragraph 

(f)(2)(ii)(B) of this section, the Agency 

will notify the requester of the actual or 

estimated amount, and may toll the 

processing clock and do no further work 

on the request until the requester pays 

the estimated or actual fee. The current 

calculation of this amount may be found 

at www.epa.gov/foia. 

(3) After providing the requester with 

estimated fee amounts, EPA will 

provide the requester with an 

opportunity to discuss with the Agency 

how to modify the request to meet the 

requester’s needs at a lower cost. 

(4) EPA calculates the estimated or 

actual fee cumulatively for multicomponent requests. If only a part 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. 

(5) If, after the requester provided an 

assurance of payment or paid an 

initially estimated or actual amount of 

fees, the Agency increases the estimated 

or actual amount of fees, the Agency 

will notify the requester, stop further 

processing of the request, and toll any 

deadline for responding to the request. 

Once the requester provides assurance 

of payment or pays the fees, the time to 

respond to the request will resume from 

where it was at the date of the tolling 

notification. 

(i) Charges for other services. 

Although not required to provide 

special services, if EPA chooses to do so 

as a matter of administrative discretion, 

the direct costs of providing the service 

will be charged to the requester. 

Examples of such services include 

certifying that records are true copies, 

sending records by other than EPA’s 

electronic FOIA management system or 

U.S. Mail, or providing multiple copies 

of the same document. 

(j) Charging interest. EPA may charge 

interest on any unpaid bill starting on 

the 31st day following the date of billing 

the requester. The Agency will assess 

interest charges at the rate provided in 

31 U.S.C. 3717 and will accrue from the 

date of the billing until the Agency 

receives payment. 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. The 

Agency will assess no penalty against 

FOIA requesters for exercising their 

statutory right to ask the Agency to 

waive or reduce a fee or to dispute a 

billing. If a fee is in dispute, the Agency 

will suspend penalties upon 

notification. 

(k) Delinquent requesters. (1) If a 

requester fails to pay all fees charged to 

the requester under the FOIA by EPA or 

any other Federal agency within 60 

calendar days of the date the fees were 

billed, the Agency will treat the 

requester as delinquent. The Agency 

may share information regarding 

delinquent requesters with other 

Federal agencies. 

(2) Before EPA continues processing a 

pending FOIA request or begins 

processing any new FOIA requests from 

a delinquent requester, the delinquent 

requester must pay the full amount due, 

plus any applicable interest, on that 

prior request and make an advance 

payment of the full amount of any 

anticipated fee. 

(3) When the Agency requires 

payment under paragraph (h)(2) of this 

section, the request will not be 

considered received until the required 

payment is made. If the requester does 

not pay the outstanding balance and the 

advance payment within 30 calendar 

days after the date of EPA’s fee 

determination, the request will be 

closed. 

(l) Aggregating requests. If a requester 

or a group of requesters acting in 

concert submit two or more requests 

that involve related matters and 

paragraphs (l)(1), (2), or both of this 

section, apply then the Agency may 

aggregate those requests and charge fees 

accordingly. Multiple FOIA requests 

involving unrelated matters shall not be 

aggregated. An aggregated group of 

FOIA requests will be treated as a single 

FOIA request under this subpart, 

including evaluation of whether 

unusual circumstances exist. 

(1) The Agency reasonably believes 

that if the requests constituted a single 

request, such a request would result in 

unusual circumstances pursuant to 

§ 2.104(f); or 

(2) The Agency reasonably believes 

that the requester or requesters acting 

together are attempting to divide a 

request into a series of requests for the 

purpose of avoiding fees. The Agency 

may presume that such requests have 

been submitted to avoid fees if 

submitted within a 30-day period. When 

requests are submitted by a period 

greater than 30 days, the Agency will 

aggregate them only if there exists a 

solid basis for determining that 

aggregation is warranted under all the 

circumstances involved. 

(m) 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. 

(n) Waiver or reduction of fees. (1) A 

request for a waiver or reduction of 

FOIA fees must be made at the time of 

the initial submission of a FOIA request. 

An untimely request for a waiver or 

reduction of fees will be denied. 

(2) Requests for the waiver or 

reduction of fees must address the 

factors listed in paragraphs (n)(4) 

through (6) of this section, as far as they 

apply to each request. EPA components 

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 components as needed. 

Requesters must submit requests for the 

waiver or reduction of fees along with 

the request. 


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(3) When only some of the requested 

records satisfy the requirements for a 

waiver of fees, the Agency will grant a 

waiver for only those records. 

(4) 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 

the Agency determines, based on all 

available information, that disclosure of 

the requested information is in the 

public interest because it is: 

(i) Likely to contribute significantly to 

public understanding of the operations 

or activities of the government, and 

(ii) Is not primarily in the commercial 

interest of the requester. 

(5) To determine whether the request 

meets the first fee waiver requirement, 

the Agency 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 the 

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. The Agency will consider a 

requester’s expertise in the subject area 

and ability and intention to effectively 

convey information to the public. The 

Agency presumes 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. The Agency 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. 

(6) To determine whether the request 

meets the second fee waiver 

requirement, the Agency 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. The Agency will consider 

any commercial interest of the requester 

(with reference to the definition of 

‘‘commercial use request’’ in paragraph 

(e)(1) of this section), or of any person 

on whose behalf the requester may be 

acting, that would be furthered by the 

requested disclosure. The Agency will 

give the requester 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. The Agency 

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. 

The Agency will not presume that 

disclosure to data brokers or others who 

merely compile and market government 

information for direct economic return 

is to primarily serve the public interest. 

§ 2.108 Administrative appeals. 

(a) Appeals of adverse 

determinations. To appeal an adverse 

determination, a requester must submit 

an appeal in writing within 90 calendar 

days from the date of the letter 

communicating the Agency’s adverse 

determination, and by one of the 

following methods: 

(1) EPA’s FOIA submission website, 

linked to at www.epa.gov/foia; 

(2) U.S. Mail sent to the following 

address: National FOIA Office, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW (2310A), 

Washington, DC 20460; or 

(3) Overnight delivery service to 

National FOIA Office, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania NW, Room 7309C, 

Washington, DC 20460. 

(b) Timing for administrative appeals 

submitted electronically. Requesters 

submitting appeals electronically must 

do so before 5 p.m. Eastern Time for the 

Agency to consider the appeal as 

received on that date, and appeals 

submitted electronically at or after 5 

p.m. Eastern Time will be considered 

received by the National FOIA Office on 

the next business day. 

(c) Content of administrative appeal. 

The appeal may include as much or as 

little related information as the 

requester wishes. The appeal must 

clearly identify the office’s 

determination that is being appealed 

and the assigned request tracking 

number. For quickest handling of 

appeals sent via U.S. Mail or overnight 

delivery service, the requester must 

mark their appeal letter and its envelope 

with ‘‘Freedom of Information Act 

Appeal.’’ 

(d) Authority to make decision on 

appeal. Unless the Administrator 

directs otherwise, the General Counsel 

or the General Counsel’s delegate will 

act on behalf of the Administrator on all 

appeals under this section, except that: 

(1) The Counsel to the Inspector 

General will act on any appeal where 

the Inspector General or the Inspector 

General’s delegate has made the final 

adverse determination; however, if the 

Counsel to the Inspector General has 

signed the final adverse determination, 

the General Counsel or the General 

Counsel’s delegate will act on the 

appeal; 

(2) An adverse determination by the 

Administrator on an initial request will 

serve as the final action of the Agency; 

and 

(3) An appeal ordinarily will not be 

adjudicated if the request becomes a 

matter of FOIA litigation. 

(e) Timing of decision on appeal. EPA 

will make the decision on the appeal in 

writing, normally within 20 working 

days of its receipt by the National FOIA 

Office. 

(1) A decision affirming an adverse 

determination in whole or in part will 

contain a statement of the reason or 

reasons for the decision, including any 

FOIA exemption or exemptions applied, 

inform the requester of dispute 

resolution services offered by the Office 

of Government Information Service of 

the National Archives and Records 

Administration, and inform the 


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1 88 FR 19233. 

2Concurrent with our proposed approval action, 

we issued an interim final determination that the 

District had satisfied the requirements of title I, part 

D of the CAA permitting program for nonattainment 

areas within the jurisdiction of the EDCAQMD. See 

88 FR 19225 (March 31, 2023). The effect of our 

interim final determination was that the imposition 

of sanctions that had been triggered in a February 

2, 2000 final limited approval and limited 

disapproval action (65 FR 4887) was deferred. 

3As discussed in our proposed action, we 

determined that Rule 523–1 satisfies the NNSR 

program requirements applicable to nonattainment 

areas classified as Severe for ozone and Moderate 

for PM2.5, and that the submittal addressed the 

NNSR requirements both the 2008 and 2015 ozone 

NAAQS, as well as the 2006 PM2.5 NAAQS. 88 FR 

19233, 19235. 

requester of the FOIA provisions for 

judicial review of the decision. 

(2) If the Agency reverses or modifies 

the adverse determination on appeal, 

the Agency will attach the requested 

information that the Agency determined 

on appeal to be releasable, or the 

Agency will return the request to the 

appropriate office so that the office may 

reprocess the request in accordance 

with the appeal decision. 

(f) When appeal is required. If the 

requester wishes to seek judicial review 

of any adverse determination, the 

requester must first appeal that adverse 

determination under this section, except 

when EPA has not responded to the 

request within the applicable timeperiod. In such cases, the requester may 

seek judicial review without making an 

administrative appeal. 

§ 2.109 Other rights and services. 

Nothing in this subpart shall be 

construed to entitle any person, as a 

right, to any service or to the disclosure 

of any record to which such person is 

not entitled under the FOIA. 

[FR Doc. 2023–19699 Filed 9–13–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2022–0910; FRL–10564– 

03–R9] 

Air Quality Implementation Plan; 

California; El Dorado County Air 

Quality Management District; 

Stationary Source Permits 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is finalizing a revision to 

the El Dorado County Air Quality 

Management District’s (EDCAQMD or 

‘‘District’’) portion of the California 

State Implementation Plan (SIP). This 

revision governs the District’s issuance 

of permits for stationary sources, and 

focuses on the preconstruction review 

and permitting of major sources and 

major modifications under part D of title 

I of the Clean Air Act (CAA or ‘‘the 

Act’’). 

DATES: This rule is effective October 16, 

2023. 

ADDRESSES: The EPA has established a 

docket for this action under Docket No. 

EPA–R09–OAR 2022–0910. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available through https://

www.regulations.gov, or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section. If you 

need assistance in a language other than 

English or if you are a person with 

disabilities who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Camille Cassar, EPA Region IX, 75 

Hawthorne St., San Francisco, CA 

94105; by phone: (415) 947–4164; or by 

email to cassar.camille@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments 

III. EPA Action 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

I. Proposed Action 

On March 31, 2023,1 the EPA 

proposed to approve the rule listed in 

Table 1 into the California SIP.2

TABLE 1—SUBMITTED RULE

Rule No. Rule title Revised Submitted 

Rule 523–1 ................................. Federal Non-Attainment New Source Review .............................. December 7, 2021 March 9, 2022. 

For areas designated nonattainment 

for one or more National Ambient Air 

Quality Standards (NAAQS), the 

applicable SIP must include 

preconstruction review and permitting 

requirements for new or modified major 

stationary sources of such 

nonattainment pollutant(s) under part D 

of title I of the Act, commonly referred 

to as Nonattainment New Source 

Review (NNSR). The rule listed in Table 

1 contains the District’s NNSR permit 

program applicable to new and 

modified major sources located in the 

designated nonattainment areas in El 

Dorado County. Our proposed action 

contains more information on the rule 

and our evaluation. 

II. Public Comments 

The EPA’s proposed action provided 

a 30-day public comment period. During 

this period, no comments were 

submitted on our proposal. 

III. EPA Action 

No comments were submitted on our 

proposal. We continue to find that Rule 

523–1 satisfies the relevant 

requirements for a CAA NNSR program 

for ozone and PM2.5 nonattainment 

areas,3 as well as the associated 

visibility requirements for sources 

subject to review under such a program 

in accordance with 40 CFR 51.307. 

Therefore, as authorized in section 

110(k)(3) of the Act, the EPA is 

approving the submitted rule. 

Additionally, all sanctions and 

sanctions clocks triggered by our 

February 2, 2000 final limited approval 

and limited disapproval action (65 FR 

4887) will be permanently terminated 

on the effective date of this final 

approval action. In our interim final 

determination to defer sanctions (88 FR 

19225), issued concurrently with our 

proposed approval action, we explained 


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