[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2006 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
40
Part 1 to 49
Revised as of July 1, 2006
Protection of Environment
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2006
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 40:
Chapter I--Environmental Protection Agency 3
Finding Aids:
Material Approved for Incorporation by Reference........ 869
Table of CFR Titles and Chapters........................ 871
Alphabetical List of Agencies Appearing in the CFR...... 889
List of CFR Sections Affected........................... 899
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 40 CFR 1.1 refers to
title 40, part 1, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
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The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2006.
[[Page ix]]
THIS TITLE
Title 40--Protection of Environment is composed of thirty-one
volumes. The parts in these volumes are arranged in the following order:
parts 1-49, parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-End),
parts 53-59, part 60 (60.1-End), part 60 (Appendices), parts 61-62, part
63 (63.1-63.599), part 63 (63.600-63.1199), part 63 (63.1200-63.1439),
part 63 (63.1440-63.6175), part 63 (63.6580-63.8830), part 63 (63.8980-
End) parts 64-71, parts 72-80, parts 81-85, part 86 (86.1-86.599-99)
part 86 (86.600-1-End), parts 87-99, parts 100-135, parts 136-149, parts
150-189, parts 190-259, parts 260-265, parts 266-299, parts 300-399,
parts 400-424, parts 425-699, parts 700-789, and part 790 to End. The
contents of these volumes represent all current regulations codified
under this title of the CFR as of July 1, 2006.
Chapter I--Environmental Protection Agency appears in all thirty-one
volumes. An alphabetical Listing of Pesticide Chemicals Index appears in
parts 150-189. Regulations issued by the Council on Environmental
Quality appear in the volume containing part 790 to End. The OMB control
numbers for title 40 appear in Sec. 9.1 of this chapter.
For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[Page 1]]
TITLE 40--PROTECTION OF ENVIRONMENT
(This book contains parts 1 to 49)
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Part
chapter i--Environmental Protection Agency.................. 1
[[Page 3]]
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
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Editorial Note: Nomenclature changes to chapter I appear at 65 FR
47324, 47325, Aug. 2, 2000, and 66 FR 34375, 34376, June 28, 2001.
SUBCHAPTER A--GENERAL
Part Page
1 Statement of organization and general
information............................. 5
2 Public information.......................... 23
3 Cross-media electronic reporting............ 70
4 Uniform relocation assistance and real
property acquisition for Federal and
federally assisted programs............. 81
5 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 81
6 Procedures for implementing the requirements
of the Council on Environmental Quality
on the National Environmental Policy Act 98
7 Nondiscrimination in programs or activities
receiving Federal assistance from the
Environmental Protection Agency......... 138
8 Environmental impact assessment of
nongovernmental activities in Antarctica 151
9 OMB approvals under the Paperwork Reduction
Act..................................... 159
10 Administrative claims under Federal Tort
Claims Act.............................. 182
11 Security classification regulations pursuant
to Executive Order 11652................ 186
12 Nondiscrimination on the basis of handicap
in programs or activities conducted by
the Environmental Protection Agency..... 190
13 Claims collection standards................. 196
14 Employee personal property claims........... 212
16 Implementation of Privacy Act of 1974....... 216
17 Implementation of the Equal Access to
Justice Act in EPA administrative
proceedings............................. 227
[[Page 4]]
18 Environmental protection research
fellowships and special research
consultants for environmental protection 233
19 Adjustment of civil monetary penalties for
inflation............................... 235
20 Certification of facilities................. 238
21 Small business.............................. 246
22 Consolidated rules of practice governing the
administrative assessment of civil
penalties and the revocation/termination
or suspension of permits................ 255
23 Judicial review under EPA--Administered
statutes................................ 280
24 Rules governing issuance of and
administrative hearings on interim
status corrective action orders......... 282
25 Public participation in programs under the
Resource Conservation and Recovery Act,
the Safe Drinking Water Act, and the
Clean Water Act......................... 290
26 Protection of human subjects................ 299
27 Program fraud civil remedies................ 327
29 Intergovernmental review of Environmental
Protection Agency programs and
activities.............................. 343
SUBCHAPTER B--GRANTS AND OTHER FEDERAL ASSISTANCE
30 Uniform administrative requirements for
grants and agreements with institutions
of higher education, hospitals, and
other non-profit organizations.......... 348
31 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 375
32 Governmentwide debarment and suspension
(nonprocurement); and statutory
disqualification under the Clean Air Act
and Clean Water Act..................... 410
34 New restrictions on lobbying................ 439
35 State and local assistance.................. 451
36 Governmentwide requirements for drug-free
workplace (financial assistance)........ 734
40 Research and demonstration grants........... 740
45 Training assistance......................... 749
46 Fellowships................................. 752
47 National Environmental Education Act grants. 757
49 Tribal Clean Air Act authority.............. 759
[[Page 5]]
SUBCHAPTER A_GENERAL
PART 1_STATEMENT OF ORGANIZATION AND GENERAL INFORMATION--Table of
Contents
Subpart A_Introduction
Sec.
1.1 Creation and authority.
1.3 Purpose and functions.
1.5 Organization and general information.
1.7 Location of principal offices.
Subpart B_Headquarters
1.21 General.
1.23 Office of the Administrator.
1.25 Staff Offices.
1.27 Offices of the Associate Administrators.
1.29 Office of Inspector General.
1.31 Office of General Counsel.
1.33 Office of Administration and Resources Management.
1.35 Office of Enforcement and Compliance Monitoring.
1.37 Office of External Affairs.
1.39 Office of Policy, Planning and Evaluation.
1.41 Office of Air and Radiation.
1.43 Office of Prevention, Pesticides and Toxic Substances.
1.45 Office of Research and Development.
1.47 Office of Solid Waste and Emergency Response.
1.49 Office of Water.
Subpart C_Field Installations
1.61 Regional Offices.
Authority: 5 U.S.C. 552.
Source: 50 FR 26721, June 28, 1985, unless otherwise noted.
Subpart A_Introduction
Sec. 1.1 Creation and authority.
Reorganization Plan 3 of 1970, established the U.S. Environmental
Protection Agency (EPA) in the Executive branch as an independent
Agency, effective December 2, 1970.
Sec. 1.3 Purpose and functions.
The U.S. Environmental Protection Agency permits coordinated and
effective governmental action to assure the protection of the
environment by abating and controlling pollution on a systematic basis.
Reorganization Plan 3 of 1970 transferred to EPA a variety of research,
monitoring, standard setting, and enforcement activities related to
pollution abatement and control to provide for the treatment of the
environment as a single interrelated system. Complementary to these
activities are the Agency's coordination and support of research and
antipollution activities carried out by State and local governments,
private and public groups, individuals, and educational institutions.
EPA reinforces efforts among other Federal agencies with respect to the
impact of their operations on the environment.
Sec. 1.5 Organization and general information.
(a) The U.S. Environmental Protection Agency's basic organization
consists of Headquarters and 10 Regional Offices. EPA Headquarters in
Washington, DC maintains overall planning, coordination and control of
EPA programs. Regional Administrators head the Regional Offices and are
responsible directly to the Administrator for the execution of the
Agency's programs within the boundaries of their Regions.
(b) EPA's Directives System contains definitive statements of EPA's
organization, policies, procedures, assignments of responsibility, and
delegations of authority. Copies are available for public inspection and
copying at the Management and Organization Division, 1200 Pennsylvania
Ave., NW., Washington, DC 20460. Information can be obtained from the
Office of Public Affairs at all Regional Offices.
(c) EPA conducts procurement pursuant to the Federal Property and
Administrative Services Act, the Federal Procurement Regulations, and
implementing EPA regulations.
Sec. 1.7 Location of principal offices.
(a) The EPA Headquarters is in Washington, DC. The mailing address
is 1200 Pennsylvania Ave., NW., Washington, DC 20460.
(b) The addresss of (and States served by) the EPA Regional Offices
(see Sec. 1.61) are:
[[Page 6]]
(1) Region I, U.S. Environmental Protection Agency, room 2203, John
F. Kennedy Federal Building, Boston, MA 02203. (Connecticut, Maine,
Massachusetts, New Hampshire, Rhode Island, and Vermont.)
(2) Region II, U.S. Environmental Protection Agency, Room 900, 26
Federal Plaza, New York, NY 10278. (New Jersey, New York, Puerto Rico,
and the Virgin Islands.)
(3) Region III, U.S. Environmental Protection Agency, 841 Chestnut
Street, Philadelphia, PA 19107. (Delaware, Maryland, Pennsylvania,
Virginia, West Virginia, and the District of Columbia.)
(4) Region IV, U.S. Environmental Protection Agency, 345 Courtland
Street NE., Atlanta, GA 30365. (Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee.)
(5) Region V, U.S. Environmental Protection Agency, 77 West Jackson
Boulevard, Chicago, IL 60604. (Illinois, Indiana, Michigan, Minnesota,
Ohio and Wisconsin.)
(6) Region VI, U.S. Environmental Protection Agency, 1201 Elm
Street, Dallas, TX 75270. (Arkansas, Louisiana, New Mexico, Oklahoma,
and Texas.)
(7) Region VII, U.S. Environmental Protection Agency, 726 Minnesota
Avenue, Kansas City, KS 66101. (Iowa, Kansas, Missouri, and Nebraska.)
(8) Region VIII, U.S. Environmental Protection Agency, 999 18th
street, One Denver Place, Denver, CO 80202. (Colorado, Montana, North
Dakota, South Dakota, Utah, and Wyoming.)
(9) Region IX, U.S. Environmental Protection Agency, 215 Fremont
Street, San Francisco, CA 94105. (Arizona, California, Hawaii, Nevada,
American Samoa, Trust Territories of the Pacific Islands, Guam, Wake
Islands, and the Northern Marianas.)
(10) Region X, U.S. Environmental Protection Agency, 1200 Sixth
Avenue, Seattle, WA 98101. (Alaska, Idaho, Oregon, and Washington.)
[50 FR 26721, June 28, 1985, as amended at 62 FR 1833, Jan. 14, 1997]
Subpart B_Headquarters
Sec. 1.21 General.
EPA Headquarters is comprised of:
(a) The Office of the Administrator;
(b) Two Associate Administrators and four staff offices which advise
the Administrator on cross-cutting Agency headquarters and regional
issues and conduct programs with respect to EPA's interface with other
national and international governmental organizations;
(c) The Office of Inspector General;
(d) The Office of General Counsel; and
(e) Nine operational offices, each headed by an Assistant
Administrator, responsible for carrying out EPA's major environmental
and administrative programs.
Sec. 1.23 Office of the Administrator.
The Environmental Protection Agency is headed by an Administrator
who is appointed by the President, by and with the consent of the
Senate. The Administrator is responsible to the President for providing
overall supervision to the Agency, and is assisted by a Deputy
Administrator also appointed by the President, by and with the consent
of the Senate. The Deputy Administrator assists the Administrator in the
discharge of Agency duties and responsibilities and serves as Acting
Administrator in the absence of the Administrator.
Sec. 1.25 Staff Offices.
(a) Office of Administrative Law Judges. The Office of
Administrative Law Judges, under the supervision of the Chief
Administrative Law Judge, is responsible for presiding over and
conducting formal hearings, and issuance of initial decisions, if
appropriate, in such proceedings. The Office provides supervision of the
Administrative Law Judges, who operate as a component of the Office of
Administrative Law Judges, in certain Agency Regional Offices. The
Office provides the Agency Hearing Clerk.
(b) Office of Civil Rights. The Office of Civil Rights, under the
supervision of a Director, serves as the principal adviser to the
Administrator with respect to EPA's civil rights programs. The Office
develops policies, procedures, and regulations to implement the Agency's
civil rights responsibilities, and provides direction to Regional and
field
[[Page 7]]
activities in the Office's area of responsibilities. The Office
implements and monitors the Agency's equal employment opportunity
program; provides advice and guidance to EPA program officials and
Regional Administrators on EEO matters; serves as advocate for
furthering career opportunities for minorities and women; and processes
complaints of discrimination for Agency disposition. The office assures:
(1) Maximum participation of minority business enterprises under EPA
contracts and grants;
(2) Equal employment opportunity under Agency service contracts,
construction contracts, and grants;
(3) Compliance with the Davis-Bacon Act and related acts;
(4) Compliance with the provisions of laws affecting Agency programs
requiring nondiscrimination on account of age and physical handicap and;
(5) Services or benefits are dispensed under any program or activity
receiving Agency financial assistance on a nondiscrimination basis.
(c) Science Advisory Board. The Science Advisory Board, under the
direction of a Director, provides expert and independent advice to the
Administrator on the scientific and technical issues facing the Agency.
The Office advises on broad, scientific, technical and policy matters;
assesses the results of specific research efforts; assists in
identifying emerging environmental problems; and advises the
Administrator on the cohesiveness and currency of the Agency's
scientific programs.
(d) Office of Small and Disadvantaged Business Utilization. The
Office of Small and Disadvantaged Business Utilization, under the
supervision of a Director, is responsible for developing policy and
procedures implementing the Agency's small and disadvantaged business
utilization responsibilities. The Office provides information and
assistance to components of the Agency's field offices responsible for
carrying out related activities. The Office develops and implements a
program to provide the maximum utilization of women-owned business
enterprises in all aspects of EPA contract work; in collaboration with
the Procurement and Contracts Management Division, develops programs to
stimulate and improve involvement of small and minority business
enterprises; and recommends the assignment of technical advisers to
assist designated Procurement Center Representatives of the Small
Business Administration in their duties. The Office represents EPA at
hearings, interagency meetings, conferences and other appropriate forums
on matters related to the advancement of these cited business
enterprises in EPA's Federal Contracting Program.
(e)(1) Environmental Appeals Board. The Environmental Appeals Board
is a permanent body with continuing functions composed of no more than
four Board Members designated by the Administrator. The Board shall
decide each matter before it in accordance with applicable statutes and
regulations. The Board typically shall sit on matters before it in
three-Member panels, and shall decide each matter by a majority vote. In
the event that absence or recusal prevents a three-Member panel, the
Board shall sit on a matter as a panel of two Members, and two Members
shall constitute a quorum under such circumstances. The Board in its
sole discretion shall establish panels to consider matters before it.
The Board's decisions regarding panel size and composition shall not be
reviewable. In the case of a tie vote, the matter shall be referred to
the Administrator to break the tie.
(2) Functions. The Environmental Appeals Board shall exercise any
authority expressly delegated to it in this title. With respect to any
matter for which authority has not been expressly delegated to the
Environmental Appeals Board, the Environmental Appeals Board shall, at
the Administrator's request, provide advice and consultation, make
findings of fact and conclusions of law, prepare a recommended decision,
or serve as the final decisionmaker, as the Administrator deems
appropriate. In performing its functions, the Environmental Appeals
Board may consult with any EPA employee concerning any matter governed
by the rules set forth in this title, provided such consultation does
not violate applicable ex parte rules in this title.
[[Page 8]]
(3) Qualifications. Each member of the Environmental Appeals Board
shall be a graduate of an accredited law school and a member in good
standing of a recognized bar association of any State or the District of
Columbia. Board Members shall not be employed by the Office of
Enforcement, the Office of the General Counsel, a Regional Office, or
any other office directly associated with matters that could come before
the Environmental Appeals Board. A Board Member shall recuse himself or
herself from deciding a particular case if that Board Member in previous
employment performed prosecutorial or investigative functions with
respect to the case, participated in the preparation or presentation of
evidence in the case, or was otherwise personally involved in the case.
[50 FR 26721, June 28, 1985, as amended at 57 FR 5323, Feb. 13, 1992; 63
FR 67780, Dec. 9, 1998]
Sec. 1.27 Offices of the Associate Administrators.
(a) Office of International Activities. The Office of International
Activities, under the supervision of an Associate Administrator,
provides direction to and supervision of the activities, programs, and
staff assigned to the Office of International Activities. All of the
functions and responsibilities of the Associate Administrator are
Agencywide, and apply to all international activities of the Agency. The
Office develops policies and procedures for the direction of the
Agency's international programs and activities, subject to U.S. foreign
policy, and assures that adequate program, scientific, and legal inputs
are provided. It conducts continuing evaluations of the Agency's
international activities and makes appropriate recommendations to the
Administrator. The Office advises the Administrator and principal Agency
officials on the progress and effect of foreign and international
programs and issues. The Office serves as the Administrator's
representative in contacts with the Department of State and other
Federal agencies concerned with international affairs. It negotiates
arrangements or understandings relating to international cooperation
with foreign organizations. The Office coordinates Agency international
contacts and commitments; serves as the focal point for responding to
requests for information relating to EPA international activities; and
provides an initial point of contact for all foreign visitors. The
Office maintains liaison with all relevant international organizations
and provides representation where appropriate. It establishes Agency
policy, and approves annual plans and modifications for travel abroad
and attendance at international conferences and events. It provides
administrative support for the general activities of the Executive
Secretary of the U.S. side of the US-USSR/PRC agreements on
environmental protection and of the U.S. Coordinator for the NATO
Committee on the Challenges of Modern Society. The Office supervises
these programs with respect to activities which are completely within
the purview of EPA.
(b) Office of Regional Operations. The Office of Regional
Operations, under the supervision of an Associate Administrator, reports
directly to the Administrator and Deputy Administrator. The Office
serves as the primary communications link between the Administrator/
Deputy Administrator and the Regional Administrators. It provides a
Headquarters focus for ensuring the involvement of Regions, or
consideration of Regional views and needs, in all aspects of the
Agency's work. The Office is responsible for assuring Regional
participation in Agency decision-making processes, assessing the impact
of Headquarters actions on Regional operations, and acting as ombudsman
to resolve Regional problems on behalf of the Administrator. The
Associate Administrator coordinates Regional issues, organizes Regional
Administrator meetings and work groups; and coordinates Regional
responses to specific issues. In addition, the Office is responsible for
working with the Regional Offices to further the consistent application
of national program policies by reinforcing existing administrative,
procedural, and program policy mechanisms as well as through initiation
of reviews of significant Regional issues of interest to the
Administrator. It continually monitors responsiveness
[[Page 9]]
and compliance with established policies and technical needs through
formal and informal contact and free dialogue. The Office initiates and
conducts on-site field visits to study, analyze, and resolve problems of
Regional, sectional, and national scale.
Sec. 1.29 Office of Inspector General.
The Office of Inspector General assumes overall responsibility for
audits and investigations relating to EPA programs and operations. The
Office provides leadership and coordination and recommends policies for
other Agency activities designed to promote economy and efficiency and
to prevent and detect fraud and abuse is such programs and operations.
The Office of the Inspector General informs the Administrator, Deputy
Administrator, and Congress of serious problems, abuses and deficiencies
relating to EPA programs and operations, and of the necessity for and
progress of corrective action; and reviews existing and proposed
legislation and regulations to assess the impact on the administration
of EPA's programs and operations. The Office recommends policies for,
and conducts or coordinates relationships between, the Agency and other
Federal, State and local government agencies, and nongovernmental
entities on all matters relating to the promotion of economy and
efficiency in the administration of, or the prevention and detection of
fraud and abuse in, programs and operations administered by the Agency.
Sec. 1.31 Office of General Counsel.
The Office of General Counsel is under the supervision of the
General Counsel who serves as the primary legal adviser to the
Administrator. The office provides legal services to all organizational
elements of the Agency with respect to all Agency programs and
activities and also provides legal opinions, legal counsel, and
litigation support; and assists in the formulation and administration of
the Agency's policies and programs as legal adviser.
Sec. 1.33 Office of Administration and Resources Management.
The Office of Administration and Resources Management is under the
supervision of the Assistance Administrator for Administration and
Resources Management who provides services to all of the programs and
activities of the Agency, except as may be specifically noted. In
addition, the Assistant Administrator has primary responsibility
Agencywide for policy and procedures governing the functional areas
outlined below. The major functions of the Office include resources
management and systems (including budget and financial management),
personnel services, occupational health and safety, administrative
services, organization and management analysis and systems development,
information management and services, automated data processing systems,
procurement through contracts and grants, and human resources
management. This Office is the primary point of contact and manages
Agencywide internal controls, audit resolution and follow up, and
government-wide management improvement initiatives. In the performance
of the above functions and responsibilities, the Assistant Administrator
for Administration and Resources Management represents the Administrator
in communications with the Office of Management and Budget, Office of
Personnel Management, General Accounting Office, General Services
Administration, Department of the Treasury, and other Federal agencies
prescribing requirements for the conduct of Government budget, fiscal
management and administrative activities.
(a) Office of Administration and Resources Management, Research
Triangle Park, North Carolina, (RTP). The Office of Administration and
Resources Management (OARM), RTP, under the supervision of a Director,
provides services to all of the programs and activities at RTP and
certain financial and automated data processing services Agencywide. The
major functions of the Office include personnel services, financial
management, procurement through contracts, library and other information
services, general services (including safety and security, property and
supply, printing, distribution, facilities and other administrative
services) and providing both local RTP and Agencywide automated data
processing systems services. The Director,
[[Page 10]]
OARM, RTP, supervises the Office of Administration, Financial Management
and Data Processing, RTP.
(b) Office of Administration, Cincinnati, Ohio. The Office of
Administration at Cincinnati, Ohio, under the supervision of a Director,
provides and administers personnel, procurement, safety and security,
property and supply, printing, distribution, facilities, and other
administrative service programs at Cincinnati and other specified
geographic locations.
(c) Office of the Comptroller. The Office of the Comptroller, under
the supervision of the Comptroller, is responsible for Agencywide
budget, resources management and financial management functions,
including program analysis and planning; budget formulation, preparation
and execution; funding allotments and allocations; and developing and
maintaining accounting systems, fiscal controls, and systems for payroll
and disbursements. The Assistant Administrator's resource systems
responsibilities are administered by this Office.
(d) Office of Administration. The Office of Administration, under
the supervision of a Director, is responsible for the development and
conduct of programs for personnel policies, procedures and operations;
organization and management systems, control, and services; facilities,
property and space management; personnel and property security;
policies, procedures, and operations related to procurement through
grants, contracts, and interagency agreements; and occupational health
and safety.
(e) Office of Information Resources Management. The Office of
Information Resources Management (OIRM), under the supervision of a
Director, provides for an information resource management program (IRM)
consistent with the provisions of Public Law 96-511. The Office
establishes policy, goals and objectives for implementation of IRM;
develops annual and long-range plans and budgets for IRM functions and
activities; and promotes IRM concepts throughout the Agency. The Office
coordinates IRM activities; plans, develops and operates information
systems and services in support of the Agency's management and
administrative functions, and other Agency programs and functions as
required. The Office oversees the performance of these activities when
carried out by other Agency components. The Office performs liaison for
interagency sharing of information and coordinates IRM activities with
OMB and GSA. The Office ensures compliance with requirements of Public
Law 96-511 and other Federal laws, regulations, and guidelines relative
to IRM; and chairs the Agency's IRM Steering Committee. The Office
develops Agency policies and standards; and administers or oversees
Agency programs for library systems and services, internal records
management, and the automated collection, processing, storage, retrieval
and transmission of data by or for Agency components and programs. The
Office provides national program policy and technical guidance for: The
acquisition of all information technology, systems and services by or
for Agency components and programs, inculding those systems and services
acquired by grantees and contractors using Agency funds; the operation
of all Agency computers and telecommunications hardware and facilities;
and the establishment and/or application of telecommunications and
Federal information processing standards. The Office reviews and
evaluates information systems and services, including office automation,
which are operated by other Agency components; and sets standards for
and approves the selection of Agency personnel who are responsible for
the technical management of these activities. The Office coordinates its
performance of these functions and activities with the Agency's
information collection policies and budgets managed by the Office of
Policy, Planning and Evaluation.
(f) The Office of Human Resources Management. The Office of Human
Resources Management (OHRM), under the supervision of a Director,
designs strategies, plans, and policies aimedat developing and training
all employees, revitalizing EPA organizations, and matching the right
people with the right jobs. The Office is responsible for developing and
assuring implementation of policies and practices necessary for EPA to
meet its present and future
[[Page 11]]
workforce needs. This includes consideration of the interrelationships
between the environmental protection workforce needs of EPA and State
governments. For Senior Executive Service (SES) personnel, SES
candidates, Presidential Executive Interchange Participants, and
Management Interns, OHRM establishes policies; assesses and projects
Agency executive needs and workforce capabilities; creates, establishes,
and implements training and development strategies and programs;
provides the full range of personnel functions; supports the Performance
Review Board (PRB) and the Executive Resources Board (ERB); and
reassigns SES personnel with the concurrence of the ERB. For the areas
of workforce management and employee and organizational development,
OHRM develops strategies, plans, and policies; coordinates Agencywide
implementation of those strategies, plans, and policies; and provides
technical assistance to operating personnel offices and States. OHRM, in
cooperation with the Office of the Comptroller, evaluates problems with
previous workyear use, monitors current workyear utilization, and
projects future workyear needs in coordination with the Agency's budget
process. The Office is the lead office for coordination of human
resources management with the Agency's Strategic Planning and Management
System. The Office develops methodologies and procedures for evaluations
of Agency human resources management activities; conducts evaluations of
human resources management activities Agencywide; and carries out human
resources management projects of special interest to Agency management.
The Office coordinates its efforts with the Office of Administration
(specifically the Personnel Management Division and the Management and
Organization Division), the Office of the Comptroller, the Office of
Information Resources Management, and the Office of Policy, Planning and
Evaluation.
Sec. 1.35 Office of Enforcement and Compliance Monitoring.
The Office of Enforcement and Compliance Monitoring, under the
supervision of the Assistant Administrator for Enforcement and
Compliance Monitoring, serves as the principal adviser to the
Administrator in matters concerning enforcement and compliance; and
provides the principal direction and review of civil enforcement
activities for air, water, waste, pesticides, toxics, and radiation. The
Assistant Administrator reviews the efforts of each Assistant and
Regional Administrator to assure that EPA develops and conducts a strong
and consistent enforcement and compliance monitoring program. The Office
manages the national criminal enforcement program; ensures coordination
of media office administrative compliance programs, and civil and
criminal enforcement activities; and provides technical expertise for
enforcement activities.
Sec. 1.37 Office of External Affairs.
(a) Office of Federal Activities. The Office of Federal Activities
is headed by a Director who reports to the Assistant Administrator for
External Affairs and supervises all the functions of the Office. The
Director acts as national program manager for five major programs that
include:
(1) The review of other agency environmental impact statements and
other major actions under the authority of Section 309 of the Clean Air
Act;
(2) EPA compliance with the National Environmental Policy Act (NEPA)
and related laws, directives, and Executive policies concerning special
environmental areas and cultural resources;
(3) Compliance with Executive policy on American Indian affairs and
the development of programs for environmental protection on Indian
lands; and
(4) The development and oversight of national programs and internal
policies, strategies, and procedures for implementing Executive Order
12088 and other administrative or statutory provisions concerning
compliance with environmental requirements by Federal facilities. The
Director chairs the Standing Committee on Implementation of Executive
Order 12088. The Office serves as the Environmental Protection Agency's
(EPA) principal point of contact and liaison with other Federal agencies
and provides consultation
[[Page 12]]
and technical assistance to those agencies relating to EPA's areas of
expertise and responsibility. The Office administers the filing and
information system for all Federal Environmental Impact Statements under
agreement with the Council on Environmental Quality (CEQ) and provides
liaison with CEQ on this function and related matters of NEPA program
administration. The Office provides a central point of information for
EPA and the public on environmental impact assessment techniques and
methodologies.
(b) Office of Public Affairs. The Office of Public Affairs is under
the supervision of a Director who serves as chief spokesperson for the
Agency and as a principal adviser, along with the Assistant
Administrator for External Affairs, to the Adminstrator, Deputy
Administrator, and Senior Management Officials, on public affairs
aspects of the Agency's activities and programs. The Office of Public
Affairs provides to the media adequate and timely information as well as
responses to queries from the media on all EPA program activities. It
assures that the policy of openness in all information matters, as
enunciated by the Administrator, is honored in all respects. Develops
publications to inform the general public of major EPA programs and
activities; it also develops informational materials for internal EPA
use in Headquarters and at the Regions, Labs and Field Offices. It
maintains clearance systems and procedures for periodicals and
nontechnical information developed by EPA for public distribution, and
reviews all publications for public affairs interests. The Office of
Public Affairs provides policy direction for, and coordination and
oversight of EPA's community relations program. It provides a system for
ensuring that EPA educates citizens and responds to their concerns about
all environmental issues and assures that there are opportunities for
public involvement in the resolution of problems. The Office supervises
the production of audio-visual materials, including graphics, radio and
video materials, for the general public and for internal audiences, in
support of EPA policies and programs. The Office provides program
direction and professional review of the performance of public affairs
functions in the Regional Offices of EPA, as well as at laboratories and
other field offices. The Office of Public Affairs is responsible for
reviewing interagency agreements and Headquarters purchase request
requisitions expected to result in contracts in the area of public
information and community relations. It develops proposals and reviews
Headquarters grant applications under consideration when public affairs
goals are involved.
(c) Office of Legislative Analysis. The Office of Legislative
Analysis, under the supervision of a Director who serves in the capacity
of Legislative Counsel, is responsible for legislative drafting and
liaison activities relating to the Agency's programs. It exercises
responsibility for legislative drafting; reports to the Office of
Management and Budget and congressional committees on proposed
legislation and pending and enrolled bills, as required by OMB Circular
No. A-19 and Bulletin No. 72-6; provides testimony on legislation and
other matters before congressional committees; and reviews transcripts
of legislative hearings. It maintains liaison with the Office of
Congressional Liaison on all Agency activities of interest to the
Congress. The Office works closely with the staffs of various Assistant
Administrators, Associate Administrators, Regional Administrators, and
Staff Office Directors in accordance with established Agency procedures,
in the development of the Agency's legislative program. The Office
assists the Assistant Administrator for External Affairs and the
Agency's senior policy officials in guiding legislative initiatives
through the legislative process. It advises the Assistant Administrator
for Administration and Resources Management in matters pertaining to
appropriations legislation. It works closely with the Office of Federal
Activities to assure compliance with Agency procedures for the
preparation of environmental impact statements, in relation to proposed
legislation and reports on legislation. The Office coordinates with the
Office of Management and Budget, other agencies, and congressional staff
members on matters within its area of responsibility; and develops
suggested
[[Page 13]]
State and local environmental legislative proposals, using inputs
provided by other Agency components. The Legislative Reference Library
provides legislative research services for the Agency. The Library
secures and furnishes congressional materials to all EPA employees and,
if available, to other Government agencies and private organizations;
and it also provides the service of securing, upon request, EPA reports
and materials for the Congress.
(d) Office of Congressional Liaison. The Office of Congressional
Liaison is under the supervision of a Director who serves as the
principal adviser to the Administrator with respect to congressional
activities. All of the functions and responsibilities of the Director
are Agencywide and apply to the provision of services with respect to
all of the programs and activities of the Agency. The Office serves as
the principal point of congressional contact with the Agency and
maintains an effective liaison with the Congress on Agency activities of
interest to the Congress and, as necessary, maintains liaison with
Agency Regional and field officials, other Government agencies, and
public and private groups having an interest in legislative matters
affecting the Agency. It assures the provision of prompt response to the
Congress on all inquiries relating to activities of the Agency; and
monitors and coordinates the continuing operating contacts between the
staff of the Office of the Comptroller and staff of the Appropriations
Subcommittees of Congress.
(e) Office of Community and Intergovernmental Relations. The Office
of Community and Intergovernmental Relations is under the supervision of
a Director who serves as the principal point of contact with public
interest groups representing general purpose State and local
governments, and is the principal source of advice and information for
the Administrator and the Assistant Administrator for External Affairs
on intergovernmental relations. The Office maintains liaison on
intergovernmental issues with the White House and Office of Management
and Budget (OMB); identifies and seeks solutions to emerging
intergovernmental issues; recommends and coordinates personal
involvement by the Administrator and Deputy Administrator in relations
with State, county, and local government officials; coordinates and
assists Headquarters components in their handling of broad-gauged and
issue-oriented intergovernmental problems. It works with the Regional
Administrators and the Office of Regional Operations to encourage the
adoption of improved methods for dealing effectively with State and
local governments on specific EPA program initiatives; works with the
Immediate Office of the Administrator, Office of Congressional Liaison,
Office of Public Affairs, and the Regional Offices to develop and carry
out a comprehensive liaison program; and tracks legislative initiatives
which affect the Agency's intergovernmental relations. It advises and
supports the Office Director in implementing the President's
Environmental Youth Awards program.
[50 FR 26721, June 28, 1985, as amended at 52 FR 30359, Aug. 14, 1987]
Sec. 1.39 Office of Policy, Planning and Evaluation.
The Assistant Administrator for Policy, Planning and Evaluation
services as principal adviser to the Administrator on Agency policy and
planning issues and as such is responsible for supervision and
management of the following: Policy analysis; standards and regulations;
and management strategy and evaluation. The Assistant Administrator
represents the Administrator with Congress and the Office of Management
and Budget, and other Federal agencies prescribing requirements for
conduct for Government management activities.
(a) Office of Policy Analysis. The Office of Policy Analysis is
under the supervision of a Director who performs the following functions
on an Agencywide basis: economic analysis of Agency programs, policies,
standards, and regulations, including the estimation of abatement costs;
research into developing new benefits models; benefit-cost analyses;
impact assessments; intermediate and long-range strategic studies;
consultation and analytical assistance in the areas described above to
senior policy and program officials and other offices in the Agency;
development and coordination proposals for
[[Page 14]]
major new Agency initiatives; liaison with other agencies; universities,
and interest groups on major policy issues and development of a
coordinated Agency position; and development of integrated pollution
control strategies for selected industrial and geographical areas.
(b) Office of Standards and Regulations. The Office of Standards and
Regulations is under the supervision of a Director who is responsible
for: involving the Office of Policy, Planning and Evaluation (OPPE) in
regulatory review; conducting technical and statistical analyses of
proposed standards, regulations and guidelines; serving as the Agency
focal point for identifying, developing and implementing alternatives to
conventional ``command and control'' regulations; conducting analyses of
Agency activities related to chemical substances and providing
mechanisms for establishing regulatory priorities and resolving
scientific issues affecting rulemaking; ensuring Agency compliance with
the Paperwork Reduction Act; evaluating and reviewing all Agency
information collection requests and activities, and, in cooperation with
the Office of Administration and Resources Management and the Office of
Management Systems and Evaluation, evaluating Agency management and uses
of data for decision-making.
(c) Office of Management Systems and Evaluation. The Office of
Management Systems and Evaluation is under the supervision of a Director
who directs and coordinates the development, implementation and
administration of Agencywide systems for planning, tracking, and
evaluating the accomplishments of Agency programs. In consultation with
other offices, the Office develops a long-range policy framework for
Agency goals, and objectives, identifies strategies for achieving goals,
establishes timetables for objectives, and ensures that programs are
evaluated against their accomplishments of goals.
Sec. 1.41 Office of Air and Radiation.
The Office of Air and Radiation is under supervision of the
Assistant Administrator for Air and Radiation who serves as principal
adviser to the Administrator in matters pertaining to air and radiation
programs, and is responsible for the management of these EPA programs:
Program policy development and evaluation; environmental and pollution
sources' standards development; enforcement of standards; program policy
guidance and overview, technical support or conduct of compliance
activities and evaluation of Regional air and radiation program
activities; development of programs for technical assistance and
technology transfer; and selected demonstration programs.
(a) Office of Mobile Sources. The Office of Mobile Sources, under
the supervision of a Director, is responsible for the mobile source air
pollution control functions of the Office of Air and Radiation. The
Office is responsible for: Characterizing emissions from mobile sources
and related fuels; developing programs for their control, including
assessment of the status of control technology and in-use vehicle
emissions; for carrying out, in coordination with the Office of
Enforcement and Compliance Monitoring as appropriate, a regulatory
compliance program to ensure adherence of mobile sources to standards;
and for fostering the development of State motor vehicles emission
inspection and maintenance programs.
(b) Office of Air Quality Planning and Standards. The Office of Air
Quality Planning and Standards, under the supervision of a Director, is
responsible for the air quality planning and standards functions of the
Office of Air and Radiation. The Director for Air Quality Planning and
Standards is responsible for emission standards for new stationary
sources, and emission standards for hazardous pollutants; for developing
national programs, technical policies, regulations, guidelines, and
criteria for air pollution control; for assessing the national air
pollution control program and the success in achieving air quality
goals; for providing assistance to the States, industry and other
organizations through personnel training activities and technical
information; for providing technical direction and support to Regional
Offices and other organizations; for
[[Page 15]]
evaluating Regional programs with respect to State implementation plans
and strategies, technical assistance, and resource requirements and
allocations for air related programs; for developing and maintaining a
national air programs data system, including air quality, emissions and
other technical data; and for providing effective technology transfer
through the translation of technological developments into improved
control program procedures.
(c) Office of Radiation Programs. The Office of Radiation Programs,
under the supervision of a Director, is responsible to the Assistant
Administrator for Air and Radiation for the radiation activities of the
Agency, including development of radiation protection criteria,
standards, and policies; measurement and control of radiation exposure;
and research requirements for radiation programs. The Office provides
technical assistance to States through EPA Regional Offices and other
agencies having radiation protection programs; establishes and directs a
national surveillance and investigation program for measuring radiation
levels in the environment; evaluates and assesses the impact of
radiation on the general public and the environment; and maintains
liaison with other public and private organizations involved in
environmental radiation protection activities. The Office coordinates
with and assists the Office of Enforcement and Compliance Monitoring in
enforcement activities where EPA has jurisdiction. The Office provides
editorial policy and guidance, and assists in preparing publications.
Sec. 1.43 Office of Prevention, Pesticides and Toxic Substances.
The Assistant Administrator serves as the principal adviser to the
Administrator in matters pertaining to assessment and regulation of
pesticides and toxic substances and is responsible for managing the
Agency's pesticides and toxic substances programs under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Federal Food,
Drug, and Cosmetic Act; the Toxic Substances Control Act (TSCA); and for
promoting coordination of all Agency programs engaged in toxic
substances activities. The Assistant Administrator has responsibility
for establishing Agency strategies for implementation and integration of
the pesticides and the toxic substances programs under applicable
Federal statutes; developing and operating Agency programs and policies
for assessment and control of pesticides and toxic substances;
developing recommendations for Agency priorities for research,
monitoring, regulatory, and information-gathering activities relating to
pesticides and toxic substances; developing scientific, technical,
economic, and social data bases for the conduct of hazard assessments
and evaluations in support of toxic substances and pesticides
activities; directing pesticides and toxic substances compliance
programs; providing toxic substances and pesticides program guidance to
EPA Regional Offices; and monitoring, evaluating, and assessing
pesticides and toxic substances program operations in EPA Headquarters
and Regional Offices.
(a) Office of Pesticide Programs. The Office of Pesticide Programs,
under the management of a Director and Deputy Director are responsible
to the Assistant Administrator for leadership of the overall pesticide
activities of the Agency under the authority of the Federal Insecticide,
Fungicide, and Rodenticide Act and several provisions of the Federal
Food, Drug, and Cosmetic Act, including the development of strategic
plans for the control of the national environmental pesticide situation.
Such plans are implemented by the Office of Pesticide Programs, other
EPA components, other Federal agencies, or by State, local, and private
sectors. The Office is also responsible for establishment of tolerance
levels for pesticide residues which occur in or on food; registration
and reregistration of pesticides; special review of pesticides suspected
of posing unreasonable risks to human health or the environment;
monitoring of pesticide residue levels in food, humans, and nontarget
fish and wildlife; preparation of pesticide registration guidelines;
development of standards for the registration and reregistration of
pesticide products; provision of program policy direction to
[[Page 16]]
technical and manpower training activities in the pesticides area;
development of research needs and monitoring requirements for the
pesticide program and related areas; review of impact statements dealing
with pesticides; and carrying out of assigned international activities.
(b) Office of Pollution Prevention and Toxics. The Office of
Pollution Prevention and Toxics (OPPT), under the management of a
Director and Deputy Director is responsible to the Assistant
Administrator for those activities of the Agency mandated by the Toxic
Substances Control Act. The Director is responsible for developing and
operating Agency programs and policies for new and existing chemicals.
In each of these areas, the Director is responsible for information
collection and coordination; data development; health, environmental and
economic assessment; and negotiated or regulatory control actions. The
Director provides operational guidance to EPA Regional Offices, reviews
and evaluates toxic substances activities at EPA Headquarters and
Regional Offices; coordinates TSCA activities with other EPA offices and
Federal and State agencies, and conducts the export notification
required by TSCA and provides information to importers. The Director is
responsible for developing policies and procedures for the coordination
and integration of Agency and Federal activities concerning toxic
substances. The Director is also responsible for coordinating
communication with the industrial community, environmental groups, and
other interested parties on matters relating to the implementation of
TSCA; providing technical support to international activities managed by
the Office of International Activities; and managing the joint planning
of toxic research and development under the auspices of the Pesticides/
Toxic Substances Research Committee.
(c) Office of Compliance Monitoring. The Office of Compliance
Monitoring, under the supervision of a Director, plans, directs, and
coordinates the pesticides and toxic substances compliance programs of
the Agency. More specifically, the Office provides a national pesticides
and toxic substances compliance overview and program policy direction to
the Regional Offices and the States, prepares guidance and policy on
compliance issues, establishes compliance priorities, provides technical
support for litigation activity, concurs on enforcement actions,
maintains liaison with the National Enforcement Investigations Center,
develops annual fiscal budgets for the national programs, and manages
fiscal and personnel resources for the Headquarters programs. The Office
directs and manages the Office of Prevention, Pesticides and Toxic
Substances' laboratory data integrity program which conducts laboratory
inspections and audits of testing data. The Office issues civil
administrative complaints and other administrative orders in cases of
first impression, overriding national significance, or violations by any
entity located in more than one Region. The office coordinates with the
Office of General Counsel and the Office of Enforcement and Compliance
Monitoring in an attorney-client relationship, with those Offices
providing legal support for informal and formal administrative
resolutions of violations; for conducting litigation; for interpreting
statutes, regulations and other legal precedents covering EPA's
activities; and for advising program managers on the legal implications
of alternative courses of action. The Office of Compliance Monitoring
coordinates with the Office of Pesticide Programs in the conduct of
pesticide enforcement compliance and registration programs under the
Federal Insecticide, Fungicide, and Rodenticide Act and participates in
decisions involving the cancellation or suspension of registration. The
Office establishes policy and operating procedures for pesticide
compliance activities including sampling programs, export certification,
monitoring programs to assure compliance with experimental use permits,
pesticide use restrictions, and recordkeeping requirements, and
determines when and whether compliance actions are appropriate. The
Office establishes policy and guidance for the State cooperative
enforcement agreement program and the applicator training and
certification program. The Office of
[[Page 17]]
Compliance Monitoring also coordinates with the Office of Pollution
Prevention and Toxics in the conduct of regulatory and compliance
programs under the Toxic Substances Control Act and participates in
regulation development for TSCA. The Office participates in the control
of imminent hazards under TSCA, inspects facilities subject to TSCA
regulation as a part of investigations which are national in scope or
which require specialized expertise, and samples and analyzes chemicals
to determine compliance with TSCA. The Office coordinates and provides
guidance to other TSCA compliance activities, including the State
cooperative enforcement agreement program and the preparation of
administrative suits.
[50 FR 26721, June 28, 1985, as amended at 57 FR 28087, June 24, 1992]
Sec. 1.45 Office of Research and Development.
The Office of Research and Development is under the supervision of
the Assistant Administrator for Research and Development who serves as
the principal science adviser to the Administrator, and is responsible
for the development, direction, and conduct of a national research,
development and demonstration program in: Pollution sources, fate, and
health and welfare effects; pollution prevention and control, and waste
management and utilization technology; environmental sciences; and
monitoring systems. The Office participates in the development of Agency
policy, standards, and regulations and provides for dissemination of
scientific and technical knowledge, including analytical methods,
monitoring techniques, and modeling methodologies. The Office serves as
coordinator for the Agency's policies and programs concerning
carcinogenesis and related problems and assures appropriate quality
control and standardization of analytical measurement and monitoring
techniques utilized by the Agency. The Office exercises review and
concurrence responsibilities on an Agencywide basis in all budgeting and
planning actions involving monitoring which require Heardquarters
approval.
(a) Office of Acid Deposition, Environmental Monitoring and Quality
Assurance. The Office of Acid Deposition, Environmental Monitoring and
Quality Assurance (OADEMQA), under the supervision of an Office
Director, is responsible for planning, managing and evaluating a
comprehensive program for:
(1) Monitoring the cause and effects of acid deposition;
(2) Research and development on the causes, effects and corrective
steps for the acid deposition phenomenon;
(3) Research with respect to the transport and fate of pollutants
which are released into the atmosphere;
(4) Development and demonstration of techniques and methods to
measure exposure and to relate ambient concentrations to exposure by
critical receptors;
(5) Research, development and demonstration of new monitoring
methods, systems, techniques and equipment for detection, identification
and characterization of pollutants at the source and in the ambient
environment and for use as reference or standard monitoring methods;
(6) Establishment, direction and coordination of Agencywide Quality
Assurance Program; and
(7) Development and provision of quality assurance methods,
techniques and material including validation and standardization of
analytical methods, sampling techniques, quality control methods,
standard reference materials, and techniques for data collection,
evaluation and interpretation. The Office identifies specific research,
development, demonstration and service needs and priorities; establishes
program policies and guidelines; develops program plans including
objectives and estimates of resources required to accomplish objectives;
administers the approved program and activities; assigns program
responsibility and resources to the laboratories assigned by the
Assistant Administrator; directs and supervises assigned laboratories in
program administration; and conducts reviews of program progress and
takes action as necessary to assure timeliness, quality and
responsiveness of outputs.
(b) Office of Environmental Engineering and Technology
Demonstration. The Office of Environmental Engineering and
[[Page 18]]
Technology Demonstration (OEETD) under the supervision of a Director, is
responsible for planning, managing, and evaluating a comprehensive
program of research, development, and demonstration of cost effective
methods and technologies to:
(1) Control Environmental impacts associated with the extraction,
processing, conversion, and transportation of energy, minerals, and
other resources, and with industrial processing and manufacturing
facilities;
(2) Control environmental impacts of public sector activities
including publicly-owned waste water and solid waste facilities;
(3) Control and manage hazardous waste generation, storage,
treatment, and disposal;
(4) Provide innovative technologies for response actions under
Superfund and technologies for control of emergency spills of oils and
hazardous waste;
(5) Improve drinking water supply and system operations, including
improved understanding of water supply technology and water supply
criteria;
(6) Characterize, reduce, and mitigate indoor air pollutants
including radon; and
(7) Characterize, reduce, and mitigate acid rain precursors from
stationary sources. Development of engineering data needed by the Agency
in reviewing premanufacturing notices relative to assessing potential
release and exposure to chemicals, treatability by waste treatment
systems, containment and control of genetically engineered organisms,
and development of alternatives to mitigate the likelihood of release
and exposure to existing chemicals. In carrying out these
responsibilities, the Office develops program plans and manages the
resources assigned to it; implements the approved programs and
activities; assigns objectives and resources to the OEETD laboratories;
conducts appropriate reviews to assure the quality, timeliness, and
responsiveness of outputs; and conducts analyses of the relative
environmental and socioeconomic impacts of engineering methods and
control technologies and strategies. The Office of Environmental
Engineering and Technology Demonstration is the focal point within the
Office of Research and Development for providing liaison with the rest
of the Agency and with the Department of Energy on issues associated
with energy development. The Office is also the focal point within the
Office of Research and Development for liaison with the rest of the
Agency on issues related to engineering reseach and development and the
control of pollution discharges.
(c) Office of Environmental Processes and Effects Research. The
Office of Environmental Processes and Effects Research, under the
supervision of the Director, is responsible for planning, managing, and
evaluating a comprehensive research program to develop the scientific
and technological methods and data necessary to understand ecological
processes, and predict broad ecosystems impacts, and to manage the
entry, movement, and fate of pollutants upon nonhuman organisms and
ecosystems. The comprehensive program includes:
(1) The development of organism and ecosystem level effect data
needed for the establishment of standards, criteria or guidelines for
the protection of nonhuman components of the environment and ecosystems
integrity and the prevention of harmful human exposure to pollutants;
(2) The development of methods to determine and predict the fate,
transport, and environmental levels which may result in human exposure
and exposure of nonhuman components of the environment, resulting from
the discharge of pollutants, singly or in combination into the
environment, including development of source criteria for protection of
environmental quality;
(3) The development and demonstration of methods for the control or
management of adverse environmental impacts from agriculture and other
rural nonprofit sources;
(4) The development and demonstration of integrated pest management
strategies for the management of agriculture and urban pests which
utilize alternative biological, cultural and chemical controls;
(5) The development of a laboratory and fieldscale screening tests
to provide data that can be used to predict the behavior of pollutants
in terms of
[[Page 19]]
movement in the environmental, accumulation in the food chain, effects
on organisms, and broad escosystem impacts;
(6) Coordination of interagency research activities associated with
the health and environmental impacts of energy production and use; and
(7) development and demonstration of methods for restoring degraded
ecosystem by means other than source control.
(d) Office of Health Research. The Office of Health Research under
the supervision of a Director, is responsible for the management of
planning, implementing, and evaluating a comprehensive, integrated human
health research program which documents acute and chronic adverse
effects to man from environmental exposure to pollutants and determines
those exposures which have a potentially adverse effect on humans. This
documentation is utilized by ORD for criteria development and scientific
assessments in support of the Agency's regulating and standard-setting
activities. To attain this objective, the program develops tests systems
and associated methods and protocols, such as predictive models to
determine similarities and differences among test organisms and man;
develops methodology and conducts laboratory and field research studies;
and develops interagency programs which effectively use pollutants. The
Office of Health Research is the Agency's focal point within the Office
of Research and Development for providing liaison relative to human
health effects and related human exposure issues (excluding issues
related to the planning and implementation of research on the human
health effects of energy pollutants that is conducted under the
Interagency Energy/Environment Program). It responds with recognized
authority to changing requirements of the Regions, program offices and
other offices for priority technical assistance. In close coordination
with Agency research and advisory committees, other agencies and
offices, and interaction with academic and other independent scientific
bodies, the Office develops health science policy for the Agency.
Through these relationships and the scientific capabilities of its
laboratories and Headquarters staffs, the Office provides a focal point
for matters pertaining to the effects of human exposure to environmental
pollutants.
(e) Office of Health and Environmental Assessment (OHEA). The Office
of Health and Environmental Assessment, under the supervision of a
Director, is the principal adviser on matters relating to the
development of health criteria, health affects assessment and risk
estimation, to the Assistant Administrator for Research and Development.
The Director's Office: Develops recommendations on OHEA programs
including the identification and development of alternative program
goals, priorities, objectives and work plans; develops recommendations
on overall office policies and means for their implementation; performs
the critical path planning necessary to assure a timely production of
OHEA information in response to program office needs; serves as an
Agency health assessment advocate for issue resolution and regulatory
review in the Agency Steering Committee, Science Advisory Board, and in
cooperation with other Federal agencies and the scientific and technical
community; and provides administrative support services to the
components of OHEA. The Director's Office provides Headquarters
coordination for the Environmental Criteria and Assessment Offices.
(f) Office of Exploratory Research. The Office of Exploratory
Research (OER), under the supervision of a Director, is responsible for
overall planning, administering, managing, and evaluating EPA's
anticipatory and extramural grant research in response to Agency
priorities, as articulated by Agency planning mechanisms and ORD's
Research Committees. The Director advises the Assistance Administrator
on the direction, scientific quality and effectiveness of ORD's long-
term scientific review and evaluation; and research funding assistance
efforts. The responsibilities of this office include: Administering
ORD's scientific review of extramural requests for research funding
assistance; developing research proposal solicitations; managing grant
projects; and ensuring project quality and optimum dissemination of
results.
[[Page 20]]
The OER is responsible for analyzing EPA's long-range environmental
research concerns; forecasting emerging and potential environmental
problems and manpower needs; identifying Federal workforce training
programs to be used by State and local governments; assuring the
participation of minority institutions in environmental research and
development activities; and conducting special studies in response to
high priority national environmental needs and problems. This office
serves as an ORD focal point for university relations and other Federal
research and development agencies related to EPA's extramural research
program.
[50 FR 26721, June 28, 1985, as amended at 52 FR 30360, Aug. 14, 1987]
Sec. 1.47 Office of Solid Waste and Emergency Response.
The Office of Solid Waste and Emergency Response (OSWER), under the
supervision of the Assistant Administrator for Solid Waste and Emergency
Response, provides Agencywide policy, guidance, and direction for the
Agency's solid and hazardous wastes and emergency response programs.
This Office has primary responsibility for implementing the Resource
Conservation and Recovery Act (RCRA) and the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA--``Superfund''). In
addition to managing those programs, the Assistant Administrator serves
as principal adviser to the Administrator in matters pertaining to them.
The Assistant Administrator's responsibilities include: Program policy
development and evaluation; development of appropriate hazardous waste
standards and regulations; ensuring compliance with applicable laws and
regulations; program policy guidance and overview, technical support,
and evaluation of Regional solid and hazardous wastes and emergency
response activities; development of programs for technical,
programmatic, and compliance assistance to States and local governments;
development of guidelines and standards for the land disposal of
hazardous wastes; analyses of the recovery of useful energy from solid
waste; development and implementation of a program to respond to
uncontrolled hazardous waste sites and spills (including oil spills);
long-term strategic planning and special studies; economic and long-term
environmental analyses; economic impact assessment of RCRA and CERCLA
regulations; analyses of alternative technologies and trends; and cost-
benefit analyses and development of OSWER environmental criteria.
(a) Office of Waste Programs Enforcement. The Office of Waste
Programs Enforcement (OWPE), under the supervision of a Director,
manages a national program of technical compliance and enforcement under
CERCLA and RCRA. The Office provides guidance and support for the
implementation of the CERCLA and RCRA compliance and enforcement
programs. This includes the development of program strategies, long-term
and yearly goals, and the formulation of budgets and plans to support
implementation of strategies and goals. The Office provides program
guidance through the development and issuance of policies, guidance and
other documents and through training and technical assistance. The
Office oversees and supports Regions and States in the implementation of
the CERCLA and RCRA enforcement programs. The Office may assume
responsibility for direct management of a limited number of CERCLA and
RCRA enforcement actions which are multi-regional in nature or are cases
of national significance. The Office serves as the national technical
expert for all matters relating to CERCLA and RCRA compliance and
enforcement. It represents the interest of the CERCLA and RCRA
enforcement programs to other offices of the Agency. In coordination
with the Office of External Affairs (OEA) and IO-OSWER, represents the
program to external organizations, including the Office of Management
and Budget (OMB), Congress, U.S. Department of Justice and other Federal
agencies, the media, public interest and industry groups, State and
local governments and their associations and the public.
(b) Office of Solid Waste. The Office of Solid Waste, under the
supervision of a Director, is responsible for the solid and hazardous
waste activities of the
[[Page 21]]
Agency. In particular, this Office is responsible for implementing the
Resource Conservation and Recovery Act. The Office provides program
policy direction to and evaluation of such activities throughout the
Agency and establishes solid and hazardous wastes research requirements
for EPA.
(c) Office of Emergency and Remedial Response. The Office of
Emergency and Remedial Response, under the supervision of a Director, is
responsible for the emergency and remedial response functions of the
Agency (i.e., CERCLA). The Office is specifically responsible for:
(1) Developing national strategy, programs, technical policies,
regulations, and guidelines for the control of abandoned hazardous waste
sites, and response to and prevention of oil and hazardous substance
spills;
(2) Providing direction, guidance, and support to the Environmental
Response Teams and overseeing their activities;
(3) Providing direction, guidance, and support to the Agency's non-
enforcement emergency and remedial response programs, including
emergency and remedial responses to hazardous waste sites;
(4) Developing national accomplishment plans and resources;
(5) Scheduling the guidelines for program plans;
(6) Assisting in the training of personnel;
(7) Monitoring and evaluating the performance, progress, and fiscal
status of the Regions in implementing emergency and remedial response
program plans;
(8) Maintaining liaison with concerned public and private national
organizations for emergency response;
(9) Supporting State emergency response programs; and
(10) Coordinating Office activities with other EPA programs.
(d) Office of Underground Storage Tanks. The Office of Underground
Storage Tanks, under the supervision of a Director, is responsible for
defining, planning, and implementing regulation of underground storage
tanks containing petroleum, petroleum products, and chemical products.
In particular, this Office is responsible for overseeing implementation
of Subtitle I of the Resource Conservation and Recovery Act (RCRA), as
amended. The Office develops and promulgates regulations and policies
including notification, tank design and installation, corrective action,
and State program approvals. It also plans for an oversees utilization
of the Underground Storage Tank Trust Fund established by the Superfund
Amendments and Reauthorization Act of 1986 (SARA).
[50 FR 26721, June 28, 1985, as amended at 52 FR 30360, Aug. 14, 1987]
Sec. 1.49 Office of Water.
The Office of Water, under the supervision of the Assistant
Administrator for Water who serves as the principal adviser to the
Administrator in matters pertaining to water programs, is responsible
for management of EPA's water programs. Functions of the Office include
program policy development and evaluation; environmental and pollution
source standards development; program policy guidance and overview;
technical support; and evaluation of Regional water activities; the
conduct of compliance and permitting activities as they relate to
drinking water and water programs; development of programs for technical
assistance and technology transfer; development of selected
demonstration programs; economic and long-term environmental analysis;
and marine and estuarine protection.
(a) Office of Water Enforcement and Permits. The Office of Water
Enforcement and Permits, under the supervision of a Director, develops
policies, strategies, procedures and guidance for EPA and State
compliance monitoring, evaluation, and enforcement programs for the
Clean Water Act and the Marine Protection Research and Sanctuaries Act.
The Office also provides national program direction to the National
Pollutant Discharge Elimination System permit program. The office has
overview responsibilities and provides technical assistance to the
regional activities in both enforcement and permitting programs.
(b) Office of Water Regulations and Standards. The Office of Water
Regulations and Standards, under the supervision of a Director, is
responsible for
[[Page 22]]
the Agency's water regulations and standards functions. The Office is
responsible for developing an overall program strategy for the
achievement of water pollution abatement in cooperation with other
appropriate program offices. The Office assures the coordination of all
national water-related activities within this water program strategy,
and monitors national progress toward the achievement of water quality
goals and is responsible for the development of effluent guidelines and
water quality standards, and other pollutant standards, regulations, and
guidelines within the program responsibilities of the Office. It
exercises overall responsibility for the development of effective State
and Regional water quality regulatory control programs. The Office is
responsible for the development and maintenance of a centralized water
programs data system including compatible water quality, discharger, and
program data files utilizing, but not displacing, files developed and
maintained by other program offices. It is responsible for developing
national accomplishment plans and resource and schedule guidelines for
monitoring and evaluating the performance, progress, and fiscal status
of the organization in implementing program plans. The Office represents
EPA in activities with other Federal agencies concerned with water
quality regulations and standards.
(c) Office of Municipal Pollution Control. The Office of Municipal
Pollution Control, under the supervision of a Director, is responsible
for the Agency's water program operations functions. The Office is
responsible for developing national strategies, program and policy
recommendations, regulations and guidelines for municipal water
pollution control; for providing technical direction and support to
Regional Offices and other organizations; and for evaluating Regional
and State programs with respect to municipal point source abatement and
control, and manpower development for water-related activities. The
Office assures that priority Headquarters and regional activities are
planned and carried out in a coordinated and integrated fashion,
including developing and implementing data submission systems.
(d) Office of Drinking Water. The Office of Drinking Water, under
the supervision of a Director, is responsible for water supply
activities of the Agency, including the development of an implementation
strategy which provides the national policy direction and coordination
for the program. This Office develops regulations and guidelines to
protect drinking water quality and existing and future underground
sources of drinking water, develops program policy and guidance for
enforcement and compliance activities, and recommends policy for water
supply protection activities. The office provides guidance and technical
information to State agencies, local utilities, and Federal facilities
through the Regional Offices on program planning and phasing; evaluates
the national level of compliance with the regulations; plans and
develops policy guidance for response to national, Regional, and local
emergencies; reviews and evaluates, with Regional Offices, technical
data for the designation of sole-source aquifers; designs a national
program of public information; provides program policy direction for
technical assistance and manpower training activities in the water
supply area; identifies research needs and develops monitoring
requirements for the national water supply program; develops national
accomplishments' plans and resource schedule guidelines for monitoring
and evaluating the program plans, and program performance, and fiscal
status; develops program plans, and budget and program status reports
for the water supply program; coordinates water supply activities with
other Federal agencies as necessary; and serves as liaison with the
National Drinking Water Advisory Council.
(e) Office of Ground-Water Protection. The Office of Ground-Water
Protection, under the supervision of a Director, oversees implementation
of the Agency's Ground-water Protection Strategy. This Office
coordinates support of Headquarters and regional activities to develop
stronger State government organizations and programs which foster
ground-water protection. The Office directs and coordinates Agency
analysis
[[Page 23]]
and approaches to unaddressed problems of ground-water contamination; is
principally responsible for establishing and implementing a framework
for decision-making at EPA on ground-water protection issues; and serves
as the focus of internal EPA policy coordination for ground-water.
(f) Office of Marine and Estuarine Protection. The Office of Marine
and Estuarine Protection, under the supervision of a Director, is
responsible for the development of policies and strategies and
implementation of a program to protect the marine/estuarine environment,
including ocean dumping. The Office provides national direction for the
Chesapeake Bay and other estuarine programs, and policy oversight of the
Great Lakes Program.
(g) Office of Wetlands Protection. The Office of Wetlands
Protection, under the supervision of a Director, administers the 404/
Wetlands Program and develops policies, procedures, regulations, and
strategies addressing the maintenance, enhancement, and protection of
the Nations Wetlands. The Office coordinates Agency issues related to
wetlands.
[50 FR 26721, June 28, 1985, as amended at 52 FR 30360, Aug. 14, 1987]
Subpart C_Field Installations
Sec. 1.61 Regional Offices.
Regional Administrators are responsible to the Administrator, within
the boundaries of their Regions, for the execution of the Regional
Programs of the Agency and such other responsibilities as may be
assigned. They serve as the Administrator's prinicipal representatives
in their Regions in contacts and relationships with Federal, State,
interstate and local agencies, industry, academic institutions, and
other public and private groups. Regional Administrators are responsible
for:
(a) Accomplishing national program objectives within the Regions as
established by the Administrator, Deputy Administrator, Assistant
Administrators, Associate Administrators, and Heads of Headquarters
Staff Offices;
(b) Developing, proposing, and implementing approved Regional
programs for comprehensive and integrated environmental protection
activities;
(c) Total resource management in their Regions within guidelines
provided by Headquarters;
(d) Conducting effective Regional enforcement and compliance
programs;
(e) Translating technical program direction and evaluation provided
by the various Assistant Administrators, Associate Administrators and
Heads of Headquarters Staff Offices, into effective operating programs
at the Regional level, and assuring that such programs are executed
efficiently;
(f) Exercising approval authority for proposed State standards and
implementation plans; and
(g) Providing for overall and specific evaluations of Regional
programs, both internal Agency and State activities.
PART 2_PUBLIC INFORMATION--Table of Contents
Subpart A_Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec.
2.100 General provisions.
2.101 Where requests for records are to be filed.
2.102 Procedures for making requests.
2.103 Responsibility for responding to requests.
2.104 Responses to requests and appeals.
2.105 Exemption categories.
2.106 Preservation of records.
2.107 Fees.
2.108 Other rights and services.
Subpart B_Confidentiality of Business Information
2.201 Definitions.
2.202 Applicability of subpart; priority where provisions conflict;
records containing more than one kind of information.
2.203 Notice to be included in EPA requests, demands, and forms; method
of asserting business confidentiality claim; effect of failure
to assert claim at time of submission.
2.204 Initial action by EPA office.
2.205 Final confidentiality determination by EPA legal office.
2.206 Advance confidentiality determinations.
2.207 Class determinations.
2.208 Substantive criteria for use in confidentiality determinations.
2.209 Disclosure in special circumstances.
[[Page 24]]
2.210 Nondisclosure for reasons other than business confidentiality or
where disclosure is prohibited by other statute.
2.211 Safeguarding of business information; penalty for wrongful
disclosure.
2.212 Establishment of control offices for categories of business
information.
2.213 Designation by business of addressee for notices and inquiries.
2.214 Defense of Freedom of Information Act suits; participation by
affected business.
2.215 Confidentiality agreements.
2.216-2.300 [Reserved]
2.301 Special rules governing certain information obtained under the
Clean Air Act.
2.302 Special rules governing certain information obtained under the
Clean Water Act.
2.303 Special rules governing certain information obtained under the
Noise Control Act of 1972.
2.304 Special rules governing certain information obtained under the
Safe Drinking Water Act.
2.305 Special rules governing certain information obtained under the
Solid Waste Disposal Act, as amended.
2.306 Special rules governing certain information obtained under the
Toxic Substances Control Act.
2.307 Special rules governing certain information obtained under the
Federal Insecticide, Fungicide and Rodenticide Act.
2.308 Special rules governing certain information obtained under the
Federal Food, Drug and Cosmetic Act.
2.309 Special rules governing certain information obtained under the
Marine Protection, Research and Sanctuaries Act of 1972.
2.310 Special rules governing certain information obtained under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
2.311 Special rules governing certain information obtained under the
Motor Vehicle Information and Cost Savings Act.
Subpart C_Testimony by Employees and Production of Documents in Civil
Legal Proceedings Where the United States Is Not a Party
2.401 Scope and purpose.
2.402 Policy on presentation of testimony and production of documents.
2.403 Procedures when voluntary testimony is requested.
2.404 Procedures when an employee is subpoenaed.
2.405 Subpoenas duces tecum.
2.406 Requests for authenticated copies of EPA documents.
Authority: 5 U.S.C. 301, 552 (as amended), 553; secs. 114, 205, 208,
301, and 307, Clean Air Act, as amended (42 U.S.C. 7414, 7525, 7542,
7601, 7607); secs. 308, 501 and 509(a), Clean Water Act, as amended (33
U.S.C. 1318, 1361, 1369(a)); sec. 13, Noise Control Act of 1972 (42
U.S.C. 4912); secs. 1445 and 1450, Safe Drinking Water Act (42 U.S.C.
300j-4, 300j-9); secs. 2002, 3007, and 9005, Solid Waste Disposal Act,
as amended (42 U.S.C. 6912, 6927, 6995); secs. 8(c), 11, and 14, Toxic
Substances Control Act (15 U.S.C. 2607(c), 2610, 2613); secs. 10, 12,
and 25, Federal Insecticide, Fungicide, and Rodenticide Act, as amended
(7 U.S.C. 136h, 136j, 136w); sec. 408(f), Federal Food, Drug and
Cosmetic Act, as amended (21 U.S.C. 346(f)); secs. 104(f) and 108,
Marine Protection Research and Sanctuaries Act of 1972 (33 U.S.C.
1414(f), 1418); secs. 104 and 115, Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9604 and
9615); sec. 505, Motor Vehicle Information and Cost Savings Act, as
amended (15 U.S.C. 2005).
Source: 41 FR 36902, Sept. 1, 1976, unless otherwise noted.
Subpart A_Procedures for Disclosure of Records Under the Freedom of
Information Act
Source: 67 FR 67307, Nov. 5, 2002, unless otherwise noted.
Sec. 2.100 General provisions.
(a) This subpart contains the rules that the Environmental
Protection Agency (EPA or Agency) follows in processing requests for
records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. The
Agency also has rules that it follows in processing Freedom of
Information (FOI) requests for records submitted to it as Confidential
Business Information (CBI). Such records are covered in subpart B of
this part. Requests made by individuals for records about themselves
under the Privacy Act of 1974 which are processed under 40 CFR part 16,
will also be treated as FOIA requests under this subpart. This ensures
that the requestor has access to all responsive records. Information
routinely provided to the public as part of a regular EPA activity may
be provided to the public without following this subpart.
(b) When documents responsive to a request are maintained for
distribution by agencies operating statutory-based fee schedule
programs, such as, but not
[[Page 25]]
limited to, the Government Printing Office or the National Technical
Information Service, EPA will inform the requester of the steps
necessary to obtain records from these sources.
Sec. 2.101 Where requests for records are to be filed.
(a) You may request records by writing to the Records, FOIA, and
Privacy Branch, Office of Environmental Information, Environmental
Protection Agency, 1200 Pennsylvania Avenue (2822T), NW, Washington, DC
20460; e-mail: [email protected]. You may also access EPA Headquarters and
Regional Freedom of Information Offices' Web sites at http://
www.epa.gov/foia and submit a request via an online form. If you believe
the records sought may be located in an EPA regional office, you should
send your request to the appropriate regional FOI Officer as indicated
in the following list:
(1) Region I (CT, ME, MA, NH, RI, VT): EPA, FOI Officer, One
Congress Street, Suite 1100, Boston, MA 02114-2023; e-mail:
[email protected].
(2) Region II (NJ, NY, PR, VI): EPA, FOI Officer, 290 Broadway, 26th
Floor, New York, NY 10007-1866; e-mail: [email protected].
(3) Region III (DE, DC, MD, PA, VA, WV): EPA, FOI Officer, 1650 Arch
Street, Philadelphia, PA 19103-2029; e-mail: [email protected].
(4) Region IV (AL, FL, GA, KY, MS, NC, SC, TN): EPA, Freedom of
Information Officer, Sam Nunn Atlanta Federal Center, 61 Forsyth Street,
SW., Atlanta, GA 30303-8960; e-mail: [email protected].
(5) Region V (IL, IN, MI, MN, OH, WI): EPA. Freedom of Information
Officer, 77 West Jackson Boulevard, Chicago, IL 60604-3507; e-mail:
[email protected].
(6) Region VI (AR, LA, NM, OK, TX): EPA, Freedom of Information
Officer, 1445 Ross Avenue, Dallas, TX 75202-2733; e-mail:
[email protected].
(7) Region VII (IA, KS, MO, NE): EPA, Freedom of Information
Officer, 901 North Fifth Street, Kansas City, KS 66101; e-mail:
[email protected].
(8) Region VIII (CO, MT, ND, SD, UT, WY): EPA, Freedom of
Information Officer, 999 18th Street, Suite 500, Denver, CO 80202-2466,
e-mail: [email protected].
(9) Region IX (AZ, CA, HI, NV, AS, GU): EPA, Freedom of Information
Officer, 75 Hawthorne Street, San Francisco, CA 94105; e-mail:
[email protected].
(10) Region X (AK, ID, OR, WA): EPA, Freedom of Information Officer,
1200 Sixth Avenue, Seattle, WA 98101; e-mail: [email protected].
(b) 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 Web
site for Headquarters or the Regions. Each index will be updated
regularly, at least quarterly, with respect to newly-included records.
(c) 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 worldwide Web site, located at http://www.epa.gov, or, upon
request, through other electronic means. EPA will also include on its
worldwide Web site the current subject-matter index of all such records.
Sec. 2.102 Procedures for making requests.
(a) How made and addressed. You may make a request for EPA records
that are not publicly available under Sec. 2.201(a)-(b) by writing
directly to the appropriate FOI Officer, as listed in Sec. 2.101(a).
Only written requests for records will be accepted for processing under
this subpart. For records located at EPA Headquarters, or in those
instances when you cannot determine where to send your request, you may
send it to the Records, FOIA, and Privacy Branch, Office of
Environmental Information, Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460; e-mail: [email protected].
That office will forward your request to the regional FOI Office it
believes most likely to have the records that you want. Your
[[Page 26]]
request will be considered received as of the date it is received by the
correct FOI Office. Misdirected requests will not be considered received
by EPA until the appropriate FOI Office receives the request. For proper
handling, you should mark both your request letter and its envelope or
e-mail subject line ``Freedom of Information Act Request.'' You should
also include your name, mailing address, and daytime telephone number in
the event we need to contact you.
(b) EPA employees may attempt in good faith to comply with oral
requests for inspection or disclosure of EPA records publicly available
under Sec. 2.201(a)-(b) , but such requests are not subject to the FOIA
or the regulations in this part.
(c) Description of records sought. Your request should reasonably
describe the records you are seeking in a way that will permit EPA
employees to identify and locate them. Whenever possible, your request
should include specific information about each record sought, such as
the date, title or name, author, recipient, and subject matter. If
known, you should include any file designations or descriptions for the
records that you want. The more specific you are about the records or
type of records that you want, the more likely EPA will be able to
identify and locate records responsive to your request. If EPA
determines that your request does not reasonably describe the records,
it will tell you either what additional information you need to provide
or why your request is otherwise insufficient. EPA will also give you an
opportunity to discuss and modify your request to meet the requirements
of this section. Should it be necessary for you to provide a revised
description of the records you are seeking, the time necessary to do so
will be excluded from the statutory 20 working day period (or any
authorized extension of time) that EPA has to respond to your request as
discussed in Sec. 2.104.
(d) Agreement to pay fees. If you make a FOIA request, EPA will
consider your request to be an agreement that you will pay all
applicable fees charged under Sec. 2.107, up to $25.00, unless you seek
a waiver of fees. The EPA office responsible for responding to your
request ordinarily will confirm this agreement in writing. When making a
request, you may specify a willingness to pay a greater or lesser
amount. Should it be necessary for you to provide a written agreement to
pay additional fees, the time necessary to do so will be excluded from
the statutory 20 working day period (or any authorized extension of
time).
Sec. 2.103 Responsibility for responding to requests.
(a) In general. Except as stated in paragraphs (c), (d), (e), and
(f) of this section, the EPA office that has possession of that record
is the office responsible for responding to you. In determining which
records are within the scope of a request, an office will ordinarily
include only those records in its possession as of the date the request
was received in the Headquarters or Regional FOI Office. If any other
date is used, the office will inform you of that date.
(b) Authority to grant or deny requests. The head of an office, or
that individual's designee, is authorized to grant or deny any request
for a record of that office or other Agency records when appropriate.
(c) Authority to grant or deny fee waivers or requests for expedited
treatment. The head of the Headquarters FOIA Office and Regional FOI
Officers, or their designees, are authorized to grant or deny fee
waivers or requests for expedited treatment.
(d) Consultations and referrals. When a request to EPA seeks records
in its possession that originated with another Federal agency, the EPA
office receiving the request shall either:
(1) Consult with the Federal agency where the record or portion
thereof originated and then respond to your request, or
(2) Direct the FOI Office to refer your request to the Federal
agency where the record or portion thereof originated. Whenever all or
any part of the responsibility for responding to a request has been
referred to another agency, the FOI Office will notify you accordingly.
(e) Law enforcement information. Whenever a request is made for a
[[Page 27]]
record containing information that relates to an investigation of a
possible violation of law and was originated by another agency, the
receiving office will either direct the FOI Office to refer the request
to that other agency or consult with that other agency prior to making
any release determination.
Sec. 2.104 Responses to requests and appeals.
(a) Unless the Agency and the requester have agreed otherwise, or
when unusual circumstances exist as provided in paragraph (e) of this
section, EPA offices will respond to requests no later than 20 working
days from the date the request is received and logged in by the
appropriate FOI Office. EPA will ordinarily respond to requests in the
order in which they were received. If EPA fails to respond to your
request within the 20 working day period, or any authorized extension of
time, you may seek judicial review to obtain the records without first
making an administrative appeal.
(b) On receipt of a request, the FOI Office ordinarily will send a
written acknowledgment advising you of the date it was received and of
the processing number assigned to the request for future reference.
(c) Multitrack processing. The Agency uses three or more processing
tracks by distinguishing between simple and complex requests based on
the amount of work and/or time needed to process the request, including
limits based on the number of pages involved. The Agency will advise you
of the processing track in which your request has been placed and of the
limits of the different processing tracks. The Agency may place your
request in its slower track(s) while providing you the opportunity to
limit the scope of your request in order to qualify for faster
processing within the specified limits of the faster track(s). If your
request is placed in a slower track, the Agency will contact you either
by telephone or by letter, whichever is most efficient in each case.
(d) Unusual circumstances. When the statutory time limits for
processing a request cannot be met because of ``unusual circumstances,''
as defined in the FOIA, and the time limits are extended on that basis,
you will be notified in writing, as soon as practicable, of the unusual
circumstances and of the date by which processing of the request should
be completed. When the extension is for more than 10 working days, the
Agency will provide you with an opportunity either to modify the request
so that it may be processed within the 10 working day time limit
extension or to arrange an alternative time period for processing the
original or modified request.
(e) Expedited processing. (1) Requests or appeals will be taken out
of order and given expedited treatment whenever EPA determines that such
requests or appeals involve a compelling need, as follows:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
Federal government activity, if the information is requested by a person
primarily engaged in disseminating information to the public.
(2) A request for expedited processing must be made at the time of
the initial request for records or at the time of appeal.
(3) If you are seeking expedited processing, you must submit a
statement, certified to be true and correct to the best of your
knowledge and belief, explaining in detail the basis for the request.
For example, if you fit within the category described in paragraph
(e)(1)(ii) of this section and are not a full-time member of the news
media, you must establish that you are a person whose primary
professional activity or occupation is information dissemination,
although it need not be your sole occupation. If you fit within the
category described in paragraph (e)(1)(ii) of this section, you must
also establish a particular urgency to inform the public about the
government activity involved in the request, beyond the public's right
to know about government activity generally.
(4) Within 10 calendar days from the date of your request for
expedited processing, the head of the Headquarters FOI Staff or Regional
FOI Officer will
[[Page 28]]
decide whether to grant your request and will notify you of the
decision. If your request for expedited treatment is granted, the
request will be given priority and will be processed as soon as
practicable. If your request for expedited processing is denied, any
appeal of that decision will be acted on expeditiously.
(f) Grants of requests. Once an office makes a determination to
grant a request in whole or in part, it will release the records or
parts of records to you and notify you of any applicable fee charged
under Sec. 2.107. Records released in part will be annotated, whenever
technically feasible, with the applicable FOIA exemption(s) at that part
of the record from which the exempt information was deleted.
(g) Adverse determinations of requests. Once the Agency makes an
adverse determination of a request, the requestor will be notified of
that determination in writing. An adverse determination consists of a
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that what has been requested is not a record
subject to the FOIA; a determination on any disputed fee matter,
including a denial of a request for a fee waiver; or a denial of a
request for expedited treatment.
(h) Initial denials of requests. The Deputy Administrator, Assistant
Administrators, Regional Administrators, the General Counsel, the
Inspector General, Associate Administrators, and heads of headquarters
staff offices are delegated the authority to issue initial
determinations. However, the authority to issue initial denials of
requests for existing, located records (other than initial denials based
solely on Sec. 2.204(d)(1)) may be redelegated only to persons
occupying positions not lower than division director or equivalent. Each
letter will include:
(1) The name and title or position of the person responsible for the
denial;
(2) A brief statement of the reason(s) for the denial, including an
identification of records being withheld (individual, or if a large
number of similar records are being denied, by described category), and
any FOIA exemption applied by the office in denying the request;
(3) An estimate of the volume of records or information withheld, in
number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through annotated deletions on records disclosed in part, or
if providing an estimate would harm an interest protected by an
applicable exemption; and
(4) A statement that the denial may be appealed under, and a
description of the requirements of, paragraph (j) of this section.
(i) Denial of fee waiver. The letter denying a request for a fee
waiver or expedited treatment will be signed by the head of the
Headquarters FOI Staff or Regional FOI Officers.
(j) Appeals of adverse determinations. If you are dissatisfied with
any adverse determination of your request by an office, you may appeal
that determination to the Headquarters Freedom of Information Staff,
Records, Privacy and FOIA Branch, Office of Information Collection,
Office of Environmental Information, Environmental Protection Agency,
1200 Pennsylvania Avenue (2822T), NW., Washington, DC 20460; e-mail:
[email protected]. The appeal must be made in writing, and it must be
submitted to the Headquarters FOI Staff no later than 30 calendar days
from the date of the letter denying the request. The Agency will not
consider appeals received after the 30-day limit. The appeal letter may
include as much or as little related information as you wish, as long as
it clearly identifies the determination being appealed (including the
assigned FOIA request number, if known). For quickest possible handling,
the appeal letter and its envelope should be marked ``Freedom of
Information Act Appeal.'' Unless the Administrator directs otherwise,
the General Counsel or his/her designee will act on behalf of the
Administrator on all appeals under this section, except that:
(1) In the case of an adverse initial determination by the General
Counsel or his/her designee, the Administrator or his/her designee will
act on the appeal;
[[Page 29]]
(2) The Counsel to the Inspector General will act on any appeal
where the Inspector General or his/her designee has made the initial
adverse determination; however, if the Counsel to the Inspector General
has signed the initial adverse determination, the General Counsel or
his/her designee will act on the appeal;
(3) An adverse determination by the Administrator on an initial
request will serve as the final action of the Agency; and
(4) If a requester seeks judicial review because the Agency has not
responded in a timely manner, any further action on an appeal will take
place through the lawsuit.
(k) The decision on your appeal will be made in writing, normally
within 20 working days of its receipt by the Headquarters Freedom of
Information Staff. A decision affirming an adverse determination in
whole or in part will contain a statement of the reason(s) for the
decision, including any FOIA exemption(s) applied, and inform you of the
FOIA provisions for judicial review of the decision. If the adverse
determination is reversed or modified on appeal, you will be notified in
a written decision. This written decision will either have the requested
information that has been determined on appeal to be releasable attached
to it, or your request will be returned to the appropriate office so
that it may be reprocessed in accordance with the appeal decision.
(l) If you wish to seek judicial review of any adverse
determination, you must first appeal that adverse determination under
this section, except when EPA has not responded to your request within
the statutory 20 working day time limit. In such cases, you may seek
judicial review without making an administrative appeal.
Sec. 2.105 Exemption categories.
(a) The FOIA, 5 U.S.C. 552(b), establishes the following nine
categories of information which are exempt from the mandatory disclosure
requirements of 5 U.S.C. 552(a):
(1)(i) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy; and
(ii) Are in fact properly classified pursuant to such Executive
order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than 5
U.S.C. 552(b)), provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding information or
refers to particular types of information to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a party other than an agency in litigation
with the affected agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
[[Page 30]]
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety or any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(b) [Reserved]
Sec. 2.106 Preservation of records.
Each FOI Officer shall preserve all correspondence pertaining to the
FOIA requests that it receives until disposition or destruction is
authorized by title 44 of the United States Code or the National
Archives and Records Administration's General Records Schedule 14.
Copies of all responsive records should be maintained by the appropriate
program office. Records shall not be disposed of while they are the
subject of a pending request, appeal, or lawsuit under the FOIA.
Sec. 2.107 Fees.
(a) In general. The Agency will charge for processing requests under
the FOIA in accordance with paragraph (c) of this section, except where
fees are limited under paragraph (d) of this section or where a waiver
or reduction of fees is granted under paragraph (l) of this section.
Requesters will pay fees by check or money order made payable to the
U.S. Environmental Protection Agency.
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers his/her
commercial, trade, or profit interests, which can include furthering
those interests through litigation. FOI Officers will determine,
whenever reasonably possible, the use to which a requester will put the
requested records. When it appears that the requester will put the
records to a commercial use, either because of the nature of the request
itself or because an office has reasonable cause to doubt a requester's
stated use, the FOI Officer will provide the requester a reasonable
opportunity to submit further clarification.
(2) Direct costs means those expenses that the Agency actually
incurs in searching for and duplicating (and, in the case of commercial
use requests, reviewing) records to respond to a FOIA request. Direct
costs include, for example, the salary of the employee performing the
work and the cost of operating duplication equipment. Not included in
direct costs are overhead expenses such as the costs of space and
heating or lighting of the facility in which the records are kept.
(3) Duplication means the making of a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, microform, audiovisual materials, or
electronic records (for example, magnetic tape, disk, or compact disk),
among others. The Agency will honor a requester's specified preference
of form or format of disclosure if the record is readily reproducible
with reasonable efforts in the requested form or format.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, or an institution of vocational education,
that operates a program of scholarly research. To be in this category, a
requester must show that the request is authorized by, and is made under
the auspices of, a qualifying institution and that the records are not
sought for a commercial use but are sought to further scholarly
research.
(5) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis, as that term is defined in
paragraph (b)(1) of this section, and that is operated solely for the
purpose of conducting scientific
[[Page 31]]
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
[[Page 32]]
fees unless a waiver or reduction of fees has been granted under
paragraph (l) of this section:
(i) Search. (A) Search fees will be charged for all requests except
for those made by educational institutions, noncommercial scientific
institutions, or representatives of the news media subject to the
limitations of paragraph (d) of this section. Offices will charge for
time spent searching even if no responsive records are found or if the
records are located but are determined to be exempt from disclosure.
(B) For searches and retrievals of requested records, either
manually or electronically, conducted by clerical personnel, the fee
will be $4.00 for each quarter hour of time. For searches and retrievals
of requested records, either manually or electronically, requiring the
use of professional personnel, the fee will be $7.00 for each quarter
hour of time. For searches and retrievals of requested records, either
manually or electronically, requiring the use of managerial personnel,
the fee will be $10.25 for each quarter hour of time.
(C) When searches and retrievals are conducted by contractors,
requesters will be charged for the actual charges up to but not
exceeding the rate which would have been charged had EPA employees
conducted the search. The costs of actual computer resource usage in
connection with such searches will also be charged, to the extent they
can be determined.
(ii) Duplication. Duplication fees will be charged to all
requesters, subject to the limitations of paragraph (d) of this section.
For either a photocopy or a computer-generated printout of a record (no
more than one copy of which need be supplied), the fee will be fifteen
(15) cents per page. For electronic forms of duplication, other than a
computer-generated printout, offices will charge the direct costs of
that duplication. Such direct costs will include the costs of the
requested electronic medium on which the copy is to be made and the
actual operator time and computer resource usage required to produce the
copy, to the extent they can be determined.
(iii) Review. Review fees will be charged only to requesters who
make a commercial use request. Review fees will be charged only for the
initial record review (that is, the review done when an office is
deciding whether an exemption applies to a particular record or portion
of a record at the initial request level). No charge will be made for
review at the administrative appeal level for an exemption already
applied. However, records or portions of records withheld under an
exemption that is subsequently determined not to apply may be reviewed
again to determine whether any other exemption not previously considered
applies; the costs of that review will be charged when it is made
necessary by a change of circumstances. Review fees will be charged at
the same rates as those charged for a search under paragraph (c)(1)(i)
of this section.
(d) Limitations on charging fees. (1) No search or review fees will
be charged for requests by educational institutions, noncommercial
scientific institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(3) Except for requesters seeking records for a commercial use,
offices will provide without charge:
(i) The first 100 pages of duplication, and
(ii) The first two hours of search.
(4) Whenever a total fee calculated under paragraph (c) of this
section is $14.00 or less for any request, no fee will be charged.
(5) The provisions of paragraphs (d)(3) and (4) of this section work
together. This means that for requesters other than those seeking
records for a commercial use, no fee will be charged unless the cost of
search in excess of two hours plus the cost of duplication in excess of
100 pages totals more than $14.00.
(e) Notice of anticipated fees in excess of $25.00. When the Agency
determines or estimates that the fees to be charged under this section
will amount to more than $25.00, the Agency will notify the requester of
the actual or estimated amount of the fees, unless the requester has
indicated a willingness to pay fees as high as those anticipated. The
amount of $25.00 is cumulative for
[[Page 33]]
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
[[Page 34]]
records responsive to requests are maintained for distribution by
agencies operating such statutorily based fee schedule programs, EPA
will inform requesters of the steps for obtaining records from those
sources so that they may do so most economically.
(l) Waiver or reduction of fees. (1) Records responsive to a request
will be furnished without charge or at a charge reduced below that
established under paragraph (c) of this section when a FOI Office
determines, based on all available information, that disclosure of the
requested information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
(2) To determine whether the first fee waiver requirement is met,
FOI Offices will consider the following factors:
(i) The subject of the request: Whether the subject of the requested
records concerns ``the operations or activities of the government.'' The
subject of the requested records must concern identifiable operations or
activities of the Federal government, with a connection that is direct
and clear, not remote.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be as
likely to contribute to such understanding when nothing new would be
added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public is likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the
individual understanding of the requester. A requester's expertise in
the subject area and ability and intention to effectively convey
information to the public will be considered. It will be presumed that a
representative of the news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a significant extent. FOI Offices will not
make value judgments about whether information that would contribute
significantly to public understanding of the operations or activities of
the government is ``important'' enough to be made public.
(3) To determine whether the second fee waiver requirement is met,
FOI Offices will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. FOI Offices will consider any commercial interest
of the requester (with reference to the definition of ``commercial use
request'' in paragraph (b)(1) of this section), or of any person on
whose behalf the requester may be acting, that would be furthered by the
requested disclosure. Requesters will be given an opportunity in the
administrative process to provide explanatory information regarding this
consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. FOI Offices ordinarily
will presume that
[[Page 35]]
when a news media requester has satisfied the public interest standard,
the public interest will be the interest primarily served by disclosure
to that requester. Disclosure to data brokers or others who merely
compile and market government information for direct economic return
will not be presumed to primarily serve the public interest.
(4) When only some of the requested records satisfy the requirements
for a waiver of fees, a waiver will be granted for only those records.
(5) Requests for the waiver or reduction of fees must address the
factors listed in paragraphs (k) (l)-(3) of this section, insofar as
they apply to each request. FOI Offices will exercise their discretion
to consider the cost-effectiveness of their investment of administrative
resources in deciding whether to grant waivers or reductions of fees and
will consult the appropriate EPA offices as needed. Requests for the
waiver or reduction of fees must be submitted along with the request.
(6) When a fee waiver request is denied, EPA will do no further work
on the request until it receives an assurance of payment or an appeal of
the fee waiver adverse determination is made and a final appeal
determination is made pursuant to Sec. 2.104(j).
Sec. 2.108 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.
Subpart B_Confidentiality of Business Information
Sec. 2.201 Definitions.
For the purposes of this subpart:
(a) Person means an individual, partnership, corporation,
association, or other public or private organization or legal entity,
including Federal, State or local governmental bodies and agencies and
their employees.
(b) Business means any person engaged in a business, trade,
employment, calling or profession, whether or not all or any part of the
net earnings derived from such engagement by such person inure (or may
lawfully inure) to the benefit of any private shareholder or individual.
(c) Business information (sometimes referred to simply as
information) means any information which pertains to the interests of
any business, which was developed or acquired by that business, and
(except where the context otherwise requires) which is possessed by EPA
in recorded form.
(d) Affected business means, with reference to an item of business
information, a business which has asserted (and not waived or withdrawn)
a business confidentiality claim covering the information, or a business
which could be expected to make such a claim if it were aware that
disclosure of the information to the public was proposed.
(e) Reasons of business confidentiality include the concept of trade
secrecy and other related legal concepts which give (or may give) a
business the right to preserve the confidentiality of business
information and to limit its use or disclosure by others in order that
the business may obtain or retain business advantages it derives from
its rights in the information. The definition is meant to encompass any
concept which authorizes a Federal agency to withhold business
information under 5 U.S.C. 552(b)(4), as well as any concept which
requires EPA to withhold information from the public for the benefit of
a business under 18 U.S.C. 1905 or any of the various statutes cited in
Sec. 2.301 through Sec. 2.309.
(f) [Reserved]
(g) Information which is available to the public is information in
EPA's possession which EPA will furnish to any member of the public upon
request and which EPA may make public, release or otherwise make
available to any person whether or not its disclosure has been
requested.
(h) Business confidentiality claim (or, simply, claim) means a claim
or allegation that business information is entitled to confidential
treatment for reasons of business confidentiality, or a request for a
determination that such information is entitled to such treatment.
(i) Voluntarily submitted information means business information in
EPA's possession--
[[Page 36]]
(1) The submission of which EPA had no statutory or contractual
authority to require; and
(2) The submission of which was not prescribed by statute or
regulation as a condition of obtaining some benefit (or avoiding some
disadvantage) under a regulatory program of general applicability,
including such regulatory programs as permit, licensing, registration,
or certification programs, but excluding programs concerned solely or
primarily with the award or administration by EPA of contracts or
grants.
(j) Recorded means written or otherwise registered in some form for
preserving information, including such forms as drawings, photographs,
videotape, sound recordings, punched cards, and computer tape or disk.
(k) [Reserved]
(l) Administrator, Regional Administrator, General Counsel, Regional
Counsel, and Freedom of Information Officer mean the EPA officers or
employees occupying the positions so titled.
(m) EPA office means any organizational element of EPA, at any level
or location. (The terms EPA office and EPA legal office are used in this
subpart for the sake of brevity and ease of reference. When this subpart
requires that an action be taken by an EPA office or by an EPA legal
office, it is the responsibility of the officer or employee in charge of
that office to take the action or ensure that it is taken.)
(n) EPA legal office means the EPA General Counsel and any EPA
office over which the General Counsel exercises supervisory authority,
including the various Offices of Regional Counsel. (See paragraph (m) of
this section.)
(o) A working day is any day on which Federal Government offices are
open for normal business. Saturdays, Sundays, and official Federal
holidays are not working days; all other days are.
Sec. 2.202 Applicability of subpart; priority where provisions
conflict; records containing more than one kind of information.
(a) Sections 2.201 through 2.215 establish basic rules governing
business confidentiality claims, the handling by EPA of business
information which is or may be entitled to confidential treatment, and
determinations by EPA of whether information is entitled to confidential
treatment for reasons of business confidentiality.
(b) Various statutes (other than 5 U.S.C. 552) under which EPA
operates contain special provisions concerning the entitlement to
confidential treatment of information gathered under such statutes.
Sections 2.301 through 2.311 prescribe rules for treatment of certain
categories of business information obtained under the various statutory
provisions. Paragraph (b) of each of those sections should be consulted
to determine whether any of those sections applies to the particular
information in question.
(c) The basic rules of Sec. Sec. 2.201 through 2.215 govern except
to the extent that they are modified or supplanted by the special rules
of Sec. Sec. 2.301 through 2.311. In the event of a conflict between
the provisions of the basic rules and those of a special rule which is
applicable to the particular information in question, the provision of
the special rule shall govern.
(d) If two or more of the sections containing special rules apply to
the particular information in question, and the applicable sections
prescribe conflicting special rules for the treatment of the
information, the rule which provides greater or wider availability to
the public of the information shall govern.
(e) For most purposes, a document or other record may usefully be
treated as a single unit of information, even though in fact the
document or record is comprised of a collection of individual items of
information. However, in applying the provisions of this subpart, it
will often be necessary to separate the individual items of information
into two or more categories, and to afford different treatment to the
information in each such category. The need for differentiation of this
type may arise, e.g., because a business confidentiality claim covers
only a portion of a record, or because only a portion of the record is
eligible for confidential treatment. EPA offices taking action under
this subpart must be alert to this problem.
(f) In taking actions under this subpart, EPA offices should
consider
[[Page 37]]
whether it is possible to obtain the affected business's consent to
disclosure of useful portions of records while protecting the
information which is or may be entitled to confidentiality (e.g., by
withholding such portions of a record as would identify a business, or
by disclosing data in the form of industry-wide aggregates, multi-year
averages or totals, or some similar form).
(g) This subpart does not apply to questions concerning entitlement
to confidential treatment or information which concerns an individual
solely in his personal, as opposed to business, capacity.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978;
50 FR 51661, Dec. 18, 1985]
Sec. 2.203 Notice to be included in EPA requests, demands, and forms;
method of asserting business confidentiality claim; effect of failure
to assert claim at time of submission.
(a) Notice to be included in certain requests and demands for
information, and in certain forms. Whenever an EPA office makes a
written request or demand that a business furnish information which, in
the office's opinion, is likely to be regarded by the business as
entitled to confidential treatment under this subpart, or whenever an
EPA office prescribes a form for use by businesses in furnishing such
information, the request, demand, or form shall include or enclose a
notice which--
(1) States that the business may, if it desires, assert a business
confidentiality claim covering part or all of the information, in the
manner described by paragraph (b) of this section, and that information
covered by such a claim will be disclosed by EPA only to the extent, and
by means of the procedures, set forth in this subpart;
(2) States that if no such claim accompanies the information when it
is received by EPA, it may be made available to the public by EPA
without further notice to the business; and
(3) Furnishes a citation of the location of this subpart in the Code
of Federal Regulations and the Federal Register.
(b) Method and time of asserting business confidentiality claim. A
business which is submitting information to EPA may assert a business
confidentiality claim covering the information by placing on (or
attaching to) the information, at the time it is submitted to EPA, a
cover sheet, stamped or typed legend, or other suitable form of notice
employing language such as trade secret, proprietary, or company
confidential. Allegedly confidential portions of otherwise non-
confidential documents should be clearly identified by the business, and
may be submitted separately to facilitate identification and handling by
EPA. If the business desires confidential treatment only until a certain
date or until the occurrence of a certain event, the notice should so
state.
(c) Effect of failure to assert claim at time of submission of
information. If information was submitted by a business to EPA on or
after October 1, 1976, in response to an EPA request or demand (or on an
EPA-prescribed form) which contained the substance of the notice
required by paragraph (a) of this section, and if no business
confidentiality claim accompanied the information when it was received
by EPA, the inquiry to the business normally required by Sec.
2.204(c)(2) need not be made. If a claim covering the information is
received after the information itself is received, EPA will make such
efforts as are administratively practicable to associate the late claim
with copies of the previously-submitted information in EPA files (see
Sec. 2.204(c)(1)). However, EPA cannot assure that such efforts will be
effective, in light of the possibility of prior disclosure or widespread
prior dissemination of the information.
Sec. 2.204 Initial action by EPA office.
(a) Situations requiring action. This section prescribes procedures
to be used by EPA offices in making initial determinations of whether
business information is entitled to confidential treatment for reasons
of business confidentiality. Action shall be taken under this section
whenever an EPA office:
(1) Learns that it is responsible for responding to a request under
5 U.S.C. 552 for the release of business information; in such a case,
the office shall
[[Page 38]]
issue an initial determination within the period specified in Sec.
2.112;
(2) Desires to determine whether business information in its
possession is entitled to confidential treatment, even though no request
for release of the information has been received; or
(3) Determines that it is likely that EPA eventually will be
requested to disclose the information at some future date and thus will
have to determine whether the information is entitled to confidential
treatment. In such a case this section's procedures should be initiated
at the earliest practicable time, in order to increase the time
available for preparation and submission of comments and for issuance of
determinations, and to make easier the task of meeting response
deadlines if a request for release of the information is later received
under 5 U.S.C. 552.
(b) Previous confidentiality determination. The EPA office shall
first ascertain whether there has been a previous determination, issued
by a Federal court or by an EPA legal office acting under this subpart,
holding that the information in question is entitled to confidential
treatment for reasons of business confidentiality.
(1) If such a determination holds that the information is entitled
to confidential treatment, the EPA Office shall furnish any person whose
request for the information is pending under 5 U.S.C. 552 an initial
determination (see Sec. 2.111 and Sec. 2.113) that the information has
previously been determined to be entitled to confidential treatment, and
that the request is therefore denied. The office shall furnish such
person the appropriate case citation or EPA determination. If the EPA
office believes that a previous determination which was issued by an EPA
legal office may be improper or no longer valid, the office shall so
inform the EPA legal office, which shall consider taking action under
Sec. 2.205(h).
(2) With respect to all information not known to be covered by such
a previous determination, the EPA office shall take action under
paragraph (c) of this section.
(c) Determining existence of business confidentiality claims. (1)
Whenever action under this paragraph is required by paragraph (b)(2) of
this section, the EPA office shall examine the information and the
office's records to determine which businesses, if any, are affected
businesses (see Sec. 2.201(d)), and to determine which businesses if
any, have asserted business confidentiality claims which remain
applicable to the information. If any business is found to have asserted
an applicable claim, the office shall take action under paragraph (d) of
this section with respect to each such claim.
(2)(i) If the examination conducted under paragraph (c)(1) of this
section discloses the existence of any business which, although it has
not asserted a claim, might be expected to assert a claim if it knew EPA
proposed to disclose the information, the EPA office shall contact a
responsible official of each such business to learn whether the business
asserts a claim covering the information. However, no such inquiry need
be made to any business--
(A) Which failed to assert a claim covering the information when
responding to an EPA request or demand, or supplying information on an
EPA form, which contained the substance of the statements prescribed by
Sec. 2.203(a);
(B) Which otherwise failed to assert a claim covering the
information after being informed by EPA that such failure could result
in disclosure of the information to the public; or
(C) Which has otherwise waived or withdrawn a claim covering the
information.
(ii) If a request for release of the information under 5 U.S.C. 552
is pending at the time inquiry is made under this paragraph (c)(2), the
inquiry shall be made by telephone or equally prompt means, and the
responsible official contacted shall be informed that any claim the
business wishes to assert must be brought to the EPA office's attention
no later than the close of business on the third working day after such
inquiry.
(iii) A record shall be kept of the results of any inquiry under
this paragraph (c)(2). If any business makes a claim covering the
information, the EPA office shall take further action under paragraph
(d) of this section.
(3) If, after the examination under paragraph (c)(1) of this
section, and
[[Page 39]]
after any inquiry made under paragraph (c)(2) of this section, the EPA
office knows of no claim covering the information and the time for
response to any inquiry has passed, the information shall be treated for
purposes of this subpart as not entitled to confidential treatment.
(d) Preliminary determination. Whenever action under this paragraph
is required by paragraph (c)(1) or (2) of this section on any business's
claim, the EPA Office shall make a determination with respect to each
such claim. Each determination shall be made after consideration of the
provisions of Sec. 2.203, the applicable substantive criteria in Sec.
2.208 or elsewhere in this subpart, and any previously-issued
determinations under this subpart which are applicable.
(1) If, in connection with any business's claim, the office
determines that the information may be entitled to confidential
treatment, the office shall--
(i) Furnish the notice of opportunity to submit comments prescribed
by paragraph (e) of this section to each business which is known to have
asserted an applicable claim and which has not previously been furnished
such notice with regard to the information in question;
(ii) Furnish, to any person whose request for release of the
information is pending under 5 U.S.C. 552, a determination (in
accordance with Sec. 2.113) that the information may be entitled to
confidential treatment under this subpart and 5 U.S.C. 552(b)(4), that
further inquiry by EPA pursuant to this subpart is required before a
final determination on the request can be issued, that the person's
request is therefore initially denied, and that after further inquiry a
final determination will be issued by an EPA legal office; and
(iii) Refer the matter to the appropriate EPA legal office,
furnishing the information required by paragraph (f) of this section
after the time has elapsed for receipt of comments from the affected
business.
(2) If, in connection with all applicable claims, the office
determines that the information clearly is not entitled to confidential
treatment, the office shall take the actions required by Sec. 2.205(f).
However, if a business has previously been furnished notice under Sec.
2.205(f) with respect to the same information, no further notice need be
furnished to that business. A copy of each notice furnished to a
business under this paragraph (d)(2) and Sec. 2.205(f) shall be
forwarded promptly to the appropriate EPA legal office.
(e) Notice to affected businesses; opportunity to comment. (1)
Whenever required by paragraph (d)(1) of this section, the EPA office
shall promptly furnish each business a written notice stating that EPA
is determining under this subpart whether the information is entitled to
confidential treatment, and affording the business an opportunity to
comment. The notice shall be furnished by certified mail (return receipt
requested), by personal delivery, or by other means which allows
verification of the fact and date of receipt. The notice shall state the
address of the office to which the business's comments shall be
addressed (the EPA office furnishing the notice, unless the General
Counsel has directed otherwise), the time allowed for comments, and the
method for requesting a time extension under Sec. 2.205(b)(2). The
notice shall further state that EPA will construe a business's failure
to furnish timely comments as a waiver of the business's claim.
(2) If action under this section is occasioned by a request for the
information under 5 U.S.C. 552, the period for comments shall be 15
working days after the date of the business's receipt of the written
notice. In other cases, the EPA office shall establish a reasonable
period for comments (not less than 15 working days after the business's
receipt of the written notice). The time period for comments shall be
considered met if the business's comments are postmarked or hand
delivered to the office designated in the notice by the date specified.
In all cases, the notice shall call the business's attention to the
provisions of Sec. 2.205(b).
(3) At or about the time the written notice is furnished, the EPA
office shall orally inform a responsible representative of the business
(by telephone or otherwise) that the business should expect to receive
the written notice, and shall request the business
[[Page 40]]
to contact the EPA office if the written notice has not been received
within a few days, so that EPA may furnish a duplicate notice.
(4) The written notice required by paragraph (e)(1) of this section
shall invite the business's comments on the following points (subject to
paragraph (e)(5) of this section):
(i) The portions of the information which are alleged to be entitled
to confidential treatment;
(ii) The period of time for which confidential treatment is desired
by the business (e.g., until a certain date, until the occurrence of a
specified event, or permanently);
(iii) The purpose for which the information was furnished to EPA and
the approximate date of submission, if known;
(iv) Whether a business confidentiality claim accompanied the
information when it was received by EPA;
(v) Measures taken by the business to guard against undesired
disclosure of the information to others;
(vi) The extent to which the information has been disclosed to
others, and the precautions taken in connection therewith;
(vii) Pertinent confidentiality determinations, if any, by EPA or
other Federal agencies, and a copy of any such determination, or
reference to it, if available;
(viii) Whether the business asserts that disclosure of the
information would be likely to result in substantial harmful effects on
the business' competitive position, and if so, what those harmful
effects would be, why they should be viewed as substantial, and an
explanation of the causal relationship between disclosure and such
harmful effects; and
(ix) Whether the business asserts that the information is
voluntarily submitted information as defined in Sec. 2.201(i), and if
so, whether and why disclosure of the information would tend to lessen
the availability to EPA of similar information in the future.
(5) To the extent that the EPA office already possesses the relevant
facts, the notice need not solicit responses to the matters addressed in
paragraphs (e)(4) (i) through (ix) of this section, although the notice
shall request confirmation of EPA's understanding of such facts where
appropriate.
(6) The notice shall refer to Sec. 2.205(c) and shall include the
statement prescribed by Sec. 2.203(a).
(f) Materials to be furnished to EPA legal office. When a matter is
referred to an EPA legal office under paragraph (d)(1) of this section,
the EPA office taking action under this section shall forward promptly
to the EPA legal office the following items:
(1) A copy of the information in question, or (where the quantity or
form of the information makes forwarding a copy of the information
impractical) representative samples, a description of the information,
or both;
(2) A description of the circumstances and date of EPA's acquisition
of the information;
(3) The name, address, and telephone number of the EPA employee(s)
most familiar with the information;
(4) The name, address and telephone number of each business which
asserts an applicable business confidentiality claim;
(5) A copy of each applicable claim (or the record of the assertion
of the claim), and a description of when and how each claim was
asserted;
(6) Comments concerning each business's compliance or noncompliance
with applicable requirements of Sec. 2.203;
(7) A copy of any request for release of the information pending
under 5 U.S.C. 552;
(8) A copy of the business's comments on whether the information is
entitled to confidential treatment;
(9) The office's comments concerning the appropriate substantive
criteria under this subpart, and information the office possesses
concerning the information's entitlement to confidential treatment; and
(10) Copies of other correspondence or memoranda which pertain to
the matter.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978;
50 FR 51661, Dec. 18, 1985]
[[Page 41]]
Sec. 2.205 Final confidentiality determination by EPA legal office.
(a) Role of EPA legal office. (1) The appropriate EPA legal office
(see paragraph (i) of this section) is responsible for making the final
administrative determination of whether or not business information
covered by a business confidentiality claim is entitled to confidential
treatment under this subpart.
(2) When a request for release of the information under 5 U.S.C. 552
is pending, the EPA legal office's determination shall serve as the
final determination on appeal from an initial denial of the request.
(i) If the initial denial was issued under Sec. 2.204(b)(1), a
final determination by the EPA legal office is necessary only if the
requestor has actually filed an appeal.
(ii) If the initial denial was issued under Sec. 2.204(d)(1),
however, the EPA legal office shall issue a final determination in every
case, unless the request has been withdrawn. (Initial denials under
Sec. 2.204(d)(1) are of a procedural nature, to allow further inquiry
into the merits of the matter, and a requestor is entitled to a decision
on the merits.) If an appeal from such a denial has not been received by
the EPA Freedom of Information Officer on the tenth working day after
issuance of the denial, the matter shall be handled as if an appeal had
been received on that day, for purposes of establishing a schedule for
issuance of an appeal decision under Sec. 2.117 of this part.
(b) Comment period; extensions; untimeliness as waiver of claim. (1)
Each business which has been furnished the notice and opportunity to
comment prescribed by Sec. 2.204(d)(1) and Sec. 2.204(e) shall furnish
its comments to the office specified in the notice in time to be
postmarked or hand delivered to that office not later than the date
specified in the notice (or the date established in lieu thereof under
this section).
(2) The period for submission of comments may be extended if, before
the comments are due, a request for an extension of the comment period
is made by the business and approved by the EPA legal office. Except in
extraordinary circumstances, the EPA legal office will not approve such
an extension without the consent of any person whose request for release
of the information under 5 U.S.C. 552 is pending.
(3) The period for submission of comments by a business may be
shortened in the manner described in paragraph (g) of this section.
(4) If a business's comments have not been received by the specified
EPA office by the date they are due (including any approved extension),
that office shall promptly inquire whether the business has complied
with paragraph (b)(1) of this section. If the business has complied with
paragraph (b)(1) but the comments have been lost in transmission,
duplicate comments shall be requested.
(c) Confidential treatment of comments from business. If information
submitted to EPA by a business as part of its comments under this
section pertains to the business's claim, is not otherwise possessed by
EPA, and is marked when received in accordance with Sec. 2.203(b), it
will be regarded by EPA as entitled to confidential treatment and will
not be disclosed by EPA without the business's consent, unless its
disclosure is duly ordered by a Federal court, notwithstanding other
provisions of this subpart to the contrary.
(d) Types of final determinations; matters to be considered. (1) If
the EPA legal office finds that a business has failed to furnish
comments under paragraph (b) of this section by the specified due date,
it shall determine that the business has waived its claim. If, after
application of the preceding sentence, no claim applies to the
information, the office shall determine that the information is not
entitled to confidential treatment under this subpart and, subject to
Sec. 2.210, is available to the public.
(2) In all other cases, the EPA legal office shall consider each
business's claim and comments, the various provisions of this subpart,
any previously-issued determinations under this subpart which are
pertinent, the materials furnished it under Sec. 2.204(f), and such
other materials as it finds appropriate. With respect to each claim, the
office shall determine whether or not the information is entitled to
confidential treatment for the benefit of the business that asserted the
claim, and the period of any such entitlement (e.g.,
[[Page 42]]
until a certain date, until the occurrence of a specified event, or
permanently), and shall take further action under paragraph (e) or (f)
of this section, as appropriate.
(3) Whenever the claims of two or more businesses apply to the same
information, the EPA legal office shall take action appropriate under
the particular circumstances to protect the interests of all persons
concerned (including any person whose request for the information is
pending under 5 U.S.C. 552).
(e) Determination that information is entitled to confidential
treatment. If the EPA legal office determines that the information is
entitled to confidential treatment for the full period requested by the
business which made the claim, EPA shall maintain the information in
confidence for such period, subject to paragraph (h) of this section,
Sec. 2.209, and the other provisions of this subpart which authorize
disclosure in specified circumstances, and the office shall so inform
the business. If any person's request for the release of the information
is then pending under 5 U.S.C. 552, the EPA legal office shall issue a
final determination denying that request.
(f) Determination that information is not entitled to confidential
treatment; notice; waiting period; release of information. (1) Notice of
denial (or partial denial) of a business confidentiality claim, in the
form prescribed by paragraph (f)(2) of this section, shall be
furnished--
(i) By the EPA office taking action under Sec. 2.204, to each
business on behalf of which a claim has been made, whenever Sec.
2.204(d)(2) requires such notice; and
(ii) By the EPA legal office taking action under this section, to
each business which has asserted a claim applicable to the information
and which has furnished timely comments under paragraph (b) of this
section, whenever the EPA legal office determines that the information
is not entitled to confidential treatment under this subpart for the
benefit of the business, or determines that the period of any
entitlement to confidential treatment is shorter than that requested by
the business.
(2) The notice prescribed by paragraph (f)(1) of this section shall
be written, and shall be furnished by certified mail (return receipt
requested), by personal delivery, or by other means which allows
verification of the fact of receipt and the date of receipt. The notice
shall state the basis for the determination, that it constitutes final
agency action concerning the business confidentiality claim, and that
such final agency action may be subject to judicial review under Chapter
7 of Title 5, United States Code. With respect to EPA's implementation
of the determination, the notice shall state that (subject to Sec.
2.210) EPA will make the information available to the public on the
tenth working day after the date of the business's receipt of the
written notice (or on such later date as is established in lieu thereof
by the EPA legal office under paragraph (f)(3) of this section), unless
the EPA legal office has first been notified of the business's
commencement of an action in a Federal court to obtain judicial review
of the determination, and to obtain preliminary injunctive relief
against disclosure. The notice shall further state that if such an
action is timely commenced, EPA may nonetheless make the information
available to the public (in the absence of an order by the court to the
contrary), once the court has denied a motion for a preliminary
injunction in the action or has otherwise upheld the EPA determination,
or whenever it appears to the EPA legal office, after reasonable notice
to the business, that the business is not taking appropriate measures to
obtain a speedy resolution of the action. If the information has been
found to be temporarily entitled to confidential treatment, the notice
shall further state that the information will not be disclosed prior to
the end of the period of such temporary entitlement to confidential
treatment.
(3) The period established in a notice under paragraph (f)(2) of
this section for commencement of an action to obtain judicial review may
be extended if, before the expiration of such period, a request for an
extension is made by the business and approved by the EPA legal office.
Except in extraordinary circumstances, the EPA legal office
[[Page 43]]
will not approve such an extension without the consent of any person
whose request for release of the information under 5 U.S.C. 552 is
pending.
(4) After the expiration of any period of temporary entitlement to
confidential treatment, a determination under this paragraph (f) shall
be implemented by the EPA legal office by making the information
available to the public (in the absence of a court order prohibiting
disclosure) whenever--
(i) The period provided for commencement by a business of an action
to obtain judicial review of the determination has expired without
notice to the EPA legal office of commencement of such an action;
(ii) The court, in a timely-commenced action, has denied the
business' motion for a preliminary injunction, or has otherwise upheld
the EPA determination; or
(iii) The EPA legal office, after reasonable notice has been
provided to the business, finds that the business is not taking
appropriate measures to obtain a speedy resolution of the timely-
commenced action.
(5) Any person whose request for release of the information under 5
U.S.C. 552 is pending at the time notice is given under paragraph (f)(2)
of this section shall be furnished a determination under 5 U.S.C. 552
stating the circumstances under which the information will be released.
(g) Emergency situations. If the General Counsel finds that
disclosure of information covered by a claim would be helpful in
alleviating a situation posing an imminent and substantial danger to
public health or safety, he may prescribe and make known to interested
persons such shorter comment period (paragraph (b) of this section),
post-determination waiting period (paragraph (f) of this section), or
both, as he finds necessary under the circumstances.
(h) Modification of prior determinations. A determination that
information is entitled to confidential treatment for the benefit of a
business, made under this subpart by an EPA legal office, shall continue
in effect in accordance with its terms until an EPA legal office taking
action under this section, or under Sec. 2.206 or Sec. 2.207, issues a
final determination stating that the earlier determination no longer
describes correctly the information's entitlement to confidential
treatment because of change in the applicable law, newly-discovered or
changed facts, or because the earlier determination was clearly
erroneous. If an EPA legal office tentatively concludes that such an
earlier determination is of questionable validity, it shall so inform
the business, and shall afford the business an opportunity to furnish
comments on pertinent issues in the manner described by Sec. 2.204(e)
and paragraph (b) of this section. If, after consideration of any timely
comments submitted by the business, the EPA legal office makes a revised
final determination that the information is not entitled to confidential
treatment, or that the period of entitlement to such treatment will end
sooner than it would have ended under the earlier determination, the
office will follow the procedure described in paragraph (f) of this
section. Determinations under this section may be made only by, or with
the concurrence of, the General Counsel.
(i) Delegation and redelegation of authority. Unless the General
Counsel otherwise directs, or this subpart otherwise specifically
provides, determinations and actions required by this subpart to be made
or taken by an EPA legal office shall be made or taken by the
appropriate Regional counsel whenever the EPA office taking action under
Sec. 2.204 or Sec. 2.206(b) is under the supervision of a Regional
Administrator, and by the General Counsel in all other cases. The
General Counsel may redelegate any or all of his authority under this
subpart to any attorney employed by EPA on a full-time basis under the
General Counsel's supervision. A Regional Counsel may redelegate any or
all of his authority under this subpart to any attorney employed by EPA
on a full-time basis under the Regional counsel's supervision.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51661, Dec. 18, 1985]
[[Page 44]]
Sec. 2.206 Advance confidentiality determinations.
(a) An advance determination under this section may be issued by an
EPA legal office if--
(1) EPA has requested or demanded that a business furnish business
information to EPA;
(2) The business asserts that the information, if submitted, would
constitute voluntarily submitted information under Sec. 2.201(i);
(3) The business will voluntarily submit the information for use by
EPA only if EPA first determines that the information is entitled to
confidential treatment under this subpart; and
(4) The EPA office which desires submission of the information has
requested that the EPA legal office issue a determination under this
section.
(b) The EPA office requesting an advance determination under this
section shall--
(1) Arrange to have the business furnish directly to the EPA legal
office a copy of the information (or, where feasible, a description of
the nature of the information sufficient to allow a determination to be
made), as well as the business's comments concerning the matters
addressed in Sec. 2.204(e)(4), excluding, however, matters addressed in
Sec. 2.204 (e)(4)(iii) and (e)(4)(iv); and
(2) Furnish to the EPA legal office the materials referred to in
Sec. 2.204(f) (3), (7), (8), and (9).
(c) In making a determination under this section, the EPA legal
office shall first determine whether or not the information would
constitute voluntarily submitted information under Sec. 2.201(i). If
the information would constitute voluntarily submitted information, the
legal office shall further determine whether the information is entitled
to confidential treatment.
(d) If the EPA legal office determines that the information would
not constitute voluntarily submitted information, or determines that it
would constitute voluntarily submitted information but would not be
entitled to confidential treatment, it shall so inform the business and
the EPA office which requested the determination, stating the basis of
the determination, and shall return to the business all copies of the
information which it may have received from the business (except that if
a request under 5 U.S.C. 552 for release of the information is received
while the EPA legal office is in possession of the information, the
legal office shall retain a copy of the information, but shall not
disclose it unless ordered by a Federal court to do so). The legal
office shall not disclose the information to any other EPA office or
employee and shall not use the information for any purpose except the
determination under this section, unless otherwise directed by a Federal
court.
(e) If the EPA legal office determines that the information would
constitute voluntarily submitted information and that it is entitled to
confidential treatment, it shall so inform the EPA office which
requested the determination and the business which submitted it, and
shall forward the information to the EPA office which requested the
determination.
Sec. 2.207 Class determinations.
(a) The General Counsel may make and issue a class determination
under this section if he finds that--
(1) EPA possesses, or is obtaining, related items of business
information;
(2) One or more characteristics common to all such items of
information will necessarily result in identical treatment for each such
item under one or more of the provisions in this subpart, and that it is
therefore proper to treat all such items as a class for one or more
purposes under this subpart; and
(3) A class determination would serve a useful purpose.
(b) A class determination shall clearly identify the class of
information to which it pertains.
(c) A class determination may state that all of the information in
the class--
(1) Is, or is not, voluntarily submitted information under Sec.
2.201(i);
(2) Is, or is not, governed by a particular section of this subpart,
or by a particular set of substantive criteria under this subpart;
(3) Fails to satisfy one or more of the applicable substantive
criteria, and is therefore ineligible for confidential treatment;
[[Page 45]]
(4) Satisfies one or more of the applicable substantive criteria; or
(5) Satisfies one or more of the applicable substantive criteria
during a certain period, but will be ineligible for confidential
treatment thereafter.
(d) The purpose of a class determination is simply to make known the
Agency's position regarding the manner in which information within the
class will be treated under one or more of the provisions of this
subpart. Accordingly, the notice of opportunity to submit comments
referred to in Sec. 2.204(d)(1)(ii) and Sec. 2.205(b), and the list of
materials required to be furnished to the EPA legal office under Sec.
2.204(d)(1)(iii), may be modified to reflect the fact that the class
determination has made unnecessary the submission of materials pertinent
to one or more issues. Moreover, in appropriate cases, action based on
the class determination may be taken under Sec. 2.204(b)(1), Sec.
2.204(d), Sec. 2.205(d), or Sec. 2.206. However, the existence of a
class determination shall not, of itself, affect any right a business
may have to receive any notice under Sec. 2.204(d)(2) or Sec.
2.205(f).
Sec. 2.208 Substantive criteria for use in confidentiality
determinations.
Determinations issued under Sec. Sec. 2.204 through 2.207 shall
hold that business information is entitled to confidential treatment for
the benefit of a particular business if--
(a) The business has asserted a business confidentiality claim which
has not expired by its terms, nor been waived nor withdrawn;
(b) The business has satisfactorily shown that it has taken
reasonable measures to protect the confidentiality of the information,
and that it intends to continue to take such measures;
(c) The information is not, and has not been, reasonably obtainable
without the business's consent by other persons (other than governmental
bodies) by use of legitimate means (other than discovery based on a
showing of special need in a judicial or quasi-judicial proceeding);
(d) No statute specifically requires disclosure of the information;
and
(e) Either--
(1) The business has satisfactorily shown that disclosure of the
information is likely to cause substantial harm to the business's
competitive position; or
(2) The information is voluntarily submitted information (see Sec.
2.201(i)), and its disclosure would be likely to impair the Government's
ability to obtain necessary information in the future.
Sec. 2.209 Disclosure in special circumstances.
(a) General. Information which, under this subpart, is not available
to the public may nonetheless be disclosed to the persons, and in the
circumstances, described by paragraphs (b) through (g) of this section.
(This section shall not be construed to restrict the disclosure of
information which has been determined to be available to the public.
However, business information for which a claim of confidentiality has
been asserted shall be treated as being entitled to confidential
treatment until there has been a determination in accordance with the
procedures of this subpart that the information is not entitled to
confidential treatment.)
(b) Disclosure to Congress or the Comptroller General. (1) Upon
receipt of a written request by the Speaker of the House, President of
the Senate, chairman of a committee or subcommittee, or the Comptroller
General, as appropriate, EPA will disclose business information to
either House of Congress, to a committee or subcommittee of Congress, or
to the Comptroller General, unless a statute forbids such disclosure.
(2) If the request is for business information claimed as
confidential or determined to be confidential, the EPA office processing
the request shall provide notice to each affected business of the type
of information disclosed and to whom it is disclosed. Notice shall be
given at least ten days prior to disclosure, except where it is not
possible to provide notice ten days in advance of any date established
by the requesting body for responding to the request. Where ten days
advance notice cannot be given, as much advance notice as
[[Page 46]]
possible shall be provided. Where notice cannot be given before the date
established by the requesting body for responding to the request, notice
shall be given as promptly after disclosure as possible. Such notice may
be given by notice published in the Federal Register or by letter sent
by certified mail, return receipt requested, or telegram. However, if
the requesting body asks in writing that no notice under this subsection
be given, EPA will give no notice.
(3) At the time EPA discloses the business information, EPA will
inform the requesting body of any unresolved business confidentiality
claim known to cover the information and of any determination under this
subpart that the information is entitled to confidential treatment.
(c) Disclosure to other Federal agencies. EPA may disclose business
information to another Federal agency if--
(1) EPA receives a written request for disclosures of the
information from a duly authorized officer or employee of the other
agency or on the initiative of EPA when such disclosure is necessary to
enable the other agency to carry out a function on behalf of EPA;
(2) The request, if any, sets forth the official purpose for which
the information is needed;
(3) When the information has been claimed as confidential or has
been determined to be confidential, the responsible EPA office provides
notice to each affected business of the type of information to be
disclosed and to whom it is to be disclosed. At the discretion of the
office, such notice may be given by notice published in the Federal
Register at least 10 days prior to disclosure, or by letter sent by
certified mail return receipt requested or telegram either of which must
be received by the affected business at least 10 days prior to
disclosure. However, no notice shall be required when EPA furnishes
business information to another Federal agency to perform a function on
behalf of EPA, including but not limited to--
(i) Disclosure to the Department of Justice for purposes of
investigation or prosecution of civil or criminal violations of Federal
law related to EPA activities;
(ii) Disclosure to the Department of Justice for purposes of
representing EPA in any matter; or
(iii) Disclosure to any Federal agency for purposes of performing an
EPA statutory function under an interagency agreement.
(4) EPA notifies the other agency of any unresolved business
confidentiality claim covering the information and of any determination
under this subpart that the information is entitled to confidential
treatment, and that further disclosure of the information may be a
violation of 18 U.S.C. 1905; and
(5) The other agency agrees in writing not to disclose further any
information designated as confidential unless--
(i) The other agency has statutory authority both to compel
production of the information and to make the proposed disclosure, and
the other agency has, prior to disclosure of the information to anyone
other than its officers and employees, furnished to each affected
business at least the same notice to which the affected business would
be entitled under this subpart;
(ii) The other agency has obtained the consent of each affected
business to the proposed disclosure; or
(iii) The other agency has obtained a written statement from the EPA
General Counsel or an EPA Regional Counsel that disclosure of the
information would be proper under this subpart.
(d) Court-ordered disclosure. EPA may disclose any business
information in any manner and to the extent ordered by a Federal court.
Where possible, and when not in violation of a specific directive from
the court, the EPA office disclosing information claimed as confidential
or determined to be confidential shall provide as much advance notice as
possible to each affected business of the type of information to be
disclosed and to whom it is to be disclosed, unless the affected
business has actual notice of the court order. At the discretion of the
office, subject to any restrictions by the court, such notice may be
given by notice in the Federal Register, letter sent by certified mail
return receipt requested, or telegram.
(e) Disclosure within EPA. An EPA office, officer, or employee may
disclose any business information to another
[[Page 47]]
EPA office, officer, or employee with an official need for the
information.
(f) Disclosure with consent of business. EPA may disclose any
business information to any person if EPA has obtained the prior consent
of each affected business to such disclosure.
(g) Record of disclosures to be maintained. Each EPA office which
discloses information to Congress, a committee or subcommittee of
Congress, the Comptroller General, or another Federal agency under the
authority of paragraph (b) or (c) of this section, shall maintain a
record of the fact of such disclosure for a period of not less than 36
months after such disclosure. Such a record, which may be in the form of
a log, shall show the name of the affected businesses, the date of
disclosure, the person or body to whom disclosure was made, and a
description of the information disclosed.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978;
50 FR 51661, Dec. 18, 1985]
Sec. 2.210 Nondisclosure for reasons other than business
confidentiality or where disclosure is prohibited by other statute.
(a) Information which is not entitled to confidential treatment
under this subpart shall be made available to the public (using the
procedures set forth in Sec. Sec. 2.204 and 2.205) if its release is
requested under 5 U.S.C. 552, unless EPA determines (under subpart A of
this part) that, for reasons other than reasons of business
confidentiality, the information is exempt from mandatory disclosure and
cannot or should not be made available to the public. Any such
determination under subpart A shall be coordinated with actions taken
under this subpart for the purpose of avoiding delay in responding to
requests under 5 U.S.C. 552.
(b) Notwithstanding any other provision of this subpart, if any
statute not cited in this subpart appears to require EPA to give
confidential treatment to any business information for reasons of
business confidentiality, the matter shall be referred promptly to an
EPA legal office for resolution. Pending resolution, such information
shall be treated as if it were entitled to confidential treatment.
Sec. 2.211 Safeguarding of business information; penalty for wrongful
disclosure.
(a) No EPA officer or employee may disclose, or use for his or her
private gain or advantage, any business information which came into his
or her possession, or to which he or she gained access, by virtue of his
or her official position or employment, except as authorized by this
subpart.
(b) Each EPA officer or employee who has custody or possession of
business information shall take appropriate measures to properly
safeguard such information and to protect against its improper
disclosure.
(c) Violation of paragraph (a) or (b) of this section shall
constitute grounds for dismissal, suspension, fine, or other adverse
personnel action. Willful violation of paragraph (a) of this section may
result in criminal prosecution under 18 U.S.C. 1905 or other applicable
statute.
(d) Each contractor or subcontractor with the United States
Government, and each employee of such contractor or subcontractor, who
is furnished business information by EPA under Sec. Sec. 2.301(h),
Sec. 2.302(h), 2.304(h), 2.305(h), 2.306(j), 2.307(h), 2.308(i), or
2.310(h) shall use or disclose that information only as permitted by the
contract or subcontract under which the information was furnished.
Contractors or subcontractors shall take steps to properly safeguard
business information including following any security procedures for
handling and safeguarding business information which are contained in
any manuals, procedures, regulations, or guidelines provided by EPA. Any
violation of this paragraph shall constitute grounds for suspension or
debarment of the contractor or subcontractor in question. A willful
violation of this paragraph may result in criminal prosecution.
[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51662, Dec. 18, 1985;
58 FR 461, Jan. 5, 1993]
Sec. 2.212 Establishment of control offices for categories of business
information.
(a) The Administrator, by order, may establish one or more mutually
exclusive categories of business information,
[[Page 48]]
and may designate for each such category an EPA office (hereinafter
referred to as a control office) which shall have responsibility for
taking actions (other than actions required to be taken by an EPA legal
office) with respect to all information within such category.
(b) If a control office has been assigned responsibility for a
category of business information, no other EPA office, officer, or
employee may make available to the public (or otherwise disclose to
persons other than EPA officers and employees) any information in that
category without first obtaining the concurrence of the control office.
Requests under 5 U.S.C. 552 for release of such information shall be
referred to the control office.
(c) A control office shall take the actions and make the
determinations required by Sec. 2.204 with respect to all information
in any category for which the control office has been assigned
responsibility.
(d) A control office shall maintain a record of the following, with
respect to items of business information in categories for which it has
been assigned responsibility:
(1) Business confidentiality claims;
(2) Comments submitted in support of claims;
(3) Waivers and withdrawals of claims;
(4) Actions and determinations by EPA under this subpart;
(5) Actions by Federal courts; and
(6) Related information concerning business confidentiality.
Sec. 2.213 Designation by business of addressee for notices and
inquiries.
(a) A business which wishes to designate a person or office as the
proper addressee of communications from EPA to the business under this
subpart may do so by furnishing in writing to the Headquarters Freedom
of Information Operations (1105), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460, the following information:
The name and address of the business making the designation; the name,
address, and telephone number of the designated person or office; and a
request that EPA inquiries and communications (oral and written) under
this subpart, including inquiries and notices which require reply within
deadlines if the business is to avoid waiver of its rights under this
subpart, be furnished to the designee pursuant to this section. Only one
person or office may serve at any one time as a business's designee
under this subpart.
(b) If a business has named a designee under this section, the
following EPA inquiries and notices to the business shall be addressed
to the designee:
(1) Inquiries concerning a business's desire to assert a business
confidentiality claim, under Sec. 2.204(c)(2)(i)(A);
(2) Notices affording opportunity to substantiate confidentiality
claims, under Sec. 2.204(d)(1) and Sec. 2.204(e);
(3) Inquires concerning comments, under Sec. 2.205(b)(4);
(4) Notices of denial of confidential treatment and proposed
disclosure of information, under Sec. 2.205(f);
(5) Notices concerning shortened comment and/or waiting periods
under Sec. 2.205(g);
(6) Notices concerning modifications or overrulings of prior
determinations, under Sec. 2.205(h);
(7) Notices to affected businesses under Sec. Sec. 2.301(g) and
2.301(h) and analogous provisions in Sec. Sec. 2.302, 2.303, 2.304,
2.305, 2.306, 2.307, and 2.308; and
(8) Notices to affected businesses under Sec. 2.209.
(c) The Freedom of Information Officer shall, as quickly as
possible, notify all EPA offices that may possess information submitted
by the business to EPA, the Regional Freedom of Information Offices, the
Office of General Counsel, and the offices of Regional Counsel of any
designation received under this section. Businesses making designations
under this section should bear in mind that several working days may be
required for dissemination of this information within EPA and that some
EPA offices may not receive notice of such designations.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40001, Sept. 8, 1978]
Sec. 2.214 Defense of Freedom of Information Act suits; participation
by affected business.
(a) In making final confidentiality determinations under this
subpart, the
[[Page 49]]
EPA legal office relies to a large extent upon the information furnished
by the affected business to substantiate its claim of confidentiality.
The EPA legal office may be unable to verify the accuracy of much of the
information submitted by the affected business.
(b) If the EPA legal office makes a final confidentiality
determination under this subpart that certain business information is
entitled to confidential treatment, and EPA is sued by a requester under
the Freedom of Information Act for disclosure of that information, EPA
will:
(1) Notify each affected business of the suit within 10 days after
service of the complaint upon EPA;
(2) Where necessary to preparation of EPA's defense, call upon each
affected business to furnish assistance; and
(3) Not oppose a motion by any affected business to intervene as a
party to the suit under rule 24(b) of the Federal Rules of Civil
Procedure.
(c) EPA will defend its final confidentiality determination, but EPA
expects the affected business to cooperate to the fullest extent
possible in this defense.
[43 FR 40001, Sept. 8, 1978]
Sec. 2.215 Confidentiality agreements.
(a) No EPA officer, employee, contractor, or subcontractor shall
enter into any agreement with any affected business to keep business
information confidential unless such agreement is consistent with this
subpart. No EPA officer, employee, contractor, or subcontractor shall
promise any affected business that business information will be kept
confidential unless the promise is consistent with this subpart.
(b) If an EPA office has requested information from a State, local,
or Federal agency and the agency refuses to furnish the information to
EPA because the information is or may constitute confidential business
information, the EPA office may enter into an agreement with the agency
to keep the information confidential, notwithstanding the provisions of
this subpart. However, no such agreement shall be made unless the
General Counsel determines that the agreement is necessary and proper.
(c) To determine that an agreement proposed under paragraph (b) of
this section is necessary, the General Counsel must find:
(1) The EPA office requesting the information needs the information
to perform its functions;
(2) The agency will not furnish the information to EPA without an
agreement by EPA to keep the information confidential; and
(3) Either:
(i) EPA has no statutory power to compel submission of the
information directly from the affected business, or
(ii) While EPA has statutory power to compel submission of the
information directly from the affected business, compelling submission
of the information directly from the business would--
(A) Require time in excess of that available to the EPA office to
perform its necessary work with the information,
(B) Duplicate information already collected by the other agency and
overly burden the affected business, or
(C) Overly burden the resources of EPA.
(d) To determine that an agreement proposed under paragraph (b) of
this section is proper, the General Counsel must find that the agreement
states--
(1) The purpose for which the information is required by EPA;
(2) The conditions under which the agency will furnish the
information to EPA;
(3) The information subject to the agreement;
(4) That the agreement does not cover information acquired by EPA
from another source;
(5) The manner in which EPA will treat the information; and
(6) That EPA will treat the information in accordance with the
agreement subject to an order of a Federal court to disclose the
information.
(e) EPA will treat any information acquired pursuant to an agreement
under paragraph (b) of this section in accordance with the procedures of
this subpart except where the agreement specifies otherwise.
[43 FR 40001, Sept. 8, 1978]
[[Page 50]]
Sec. Sec. 2.216-2.300 [Reserved]
Sec. 2.301 Special rules governing certain information obtained under
the Clean Air Act.
(a) Definitions. For the purpose of this section:
(1) Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
(2)(i) Emission data means, with reference to any source of emission
of any substance into the air--
(A) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of any emission which has been emitted by the
source (or of any pollutant resulting from any emission by the source),
or any combination of the foregoing;
(B) Information necessary to determine the identity, amount,
frequency, concentration, or other characteristics (to the extent
related to air quality) of the emissions which, under an applicable
standard or limitation, the source was authorized to emit (including, to
the extent necessary for such purposes, a description of the manner or
rate of operation of the source); and
(C) A general description of the location and/or nature of the
source to the extent necessary to identify the source and to distinguish
it from other sources (including, to the extent necessary for such
purposes, a description of the device, installation, or operation
constituting the source).
(ii) Notwithstanding paragraph (a)(2)(i) of this section, the
following information shall be considered to be emission data only to
the extent necessary to allow EPA to disclose publicly that a source is
(or is not) in compliance with an applicable standard or limitation, or
to allow EPA to demonstrate the feasibility, practicability, or
attainability (or lack thereof) of an existing or proposed standard or
limitation:
(A) Information concerning research, or the results of research, on
any project, method, device or installation (or any component thereof)
which was produced, developed, installed, and used only for research
purposes; and
(B) Information concerning any product, method, device, or
installation (or any component thereof) designed and intended to be
marketed or used commercially but not yet so marketed or used.
(3) Standard or limitation means any emission standard or limitation
established or publicly proposed pursuant to the Act or pursuant to any
regulation under the Act.
(4) Proceeding means any rulemaking, adjudication, or licensing
conducted by EPA under the Act or under regulations which implement the
Act, except for determinations under this subpart.
(5) Manufacturer has the meaning given it in section 216(1) of the
Act, 42 U.S.C. 7550(1).
(b) Applicability. (1) This section applies to business information
which was--
(i) Provided or obtained under section 114 of the Act, 42 U.S.C.
7414, by the owner or operator of any stationary source, for the purpose
(A) of developing or assisting in the development of any implementation
plan under section 110 or 111(d) of the Act, 42 U.S.C. 7410, 7411(d),
any standard of performance under section 111 of the Act, 42 U.S.C.
7411, or any emission standard under section 112 of the Act, 42 U.S.C.
7412, (B) of determining whether any person is in violation of any such
standard or any requirement of such a plan, or (C) of carrying out any
provision of the Act (except a provision of Part II of the Act with
respect to a manufacturer of new motor vehicles or new motor vehicle
engines);
(ii) Provided or obtained under section 208 of the Act, 42 U.S.C.
7542, for the purpose of enabling the Administrator to determine whether
a manufacturer has acted or is acting in compliance with the Act and
regulations under the Act, or provided or obtained under section 206(c)
of the Act, 42 U.S.C. 7525(c); or
(iii) Provided in response to a subpoena for the production of
papers, books, or documents issued under the authority of section 307(a)
of the Act, 42 U.S.C. 7607(a).
(2) Information will be considered to have been provided or obtained
under section 114 of the Act if it was provided in response to a request
by EPA made for any of the purposes stated in section 114, or if its
submission could have
[[Page 51]]
been required under section 114, regardless of whether section 114 was
cited as the authority for any request for the information, whether an
order to provide the information was issued under section 113(a) of the
Act, 42 U.S.C. 7413(a), whether an action was brought under section
113(b) of the Act, 42 U.S.C. 7413(b), or whether the information was
provided directly to EPA or through some third person.
(3) Information will be considered to have been provided or obtained
under section 208 of the Act if it was provided in response to a request
by EPA made for any of the purposes stated in section 208, or if its
submission could have been required under section 208, regardless of
whether section 208 was cited as the authority for any request for the
information, whether an action was brought under section 204 of the Act,
42 U.S.C. 7523, or whether the information was provided directly to EPA
or through some third person.
(4) Information will be considered to have been provided or obtained
under section 206(c) of the Act if it was provided in response to a
request by EPA made for any of the purposes stated in section 206(c), or
if its submission could have been required under section 206(c)
regardless of whether section 206(c) was cited as authority for any
request for the information, whether an action was brought under section
204 of the Act, 42 U.S.C. 7523, or whether the information was provided
directly to EPA or through some third person.
(5) Information will be considered to have been provided or obtained
under section 307(a) of the Act if it was provided in response to a
subpoena issued under section 307(a), or if its production could have
been required by subpoena under section 307(a), regardless of whether
section 307(a) was cited as the authority for any request for the
information, whether a subpoena was issued by EPA, whether a court
issued an order under section 307(a), or whether the information was
provided directly to EPA or through some third person.
(c) Basic rules which apply without change. Sections 2.201 through
2.207, Sec. 2.209 and Sec. Sec. 2.211 through 2.215 apply without
change to information to which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality determinations.
Section 2.208 applies to information to which this section applies,
except that information which is emission data, a standard or
limitation, or is collected pursuant to section 211(b)(2)(A) of the Act
is not eligible for confidential treatment. No information to which this
section applies is voluntarily submitted information.
(f) Availability of information not entitled to confidential
treatment. Section 2.210 does not apply to information to which this
section applies. Emission data, standards or limitations, and any other
information provided under section 114 or 208 of the Act which is
determined under this subpart not to be entitled to confidential
treatment, shall be available to the public notwithstanding any other
provision of this part. Emission data and standards or limitations
provided in response to a subpoena issued under section 307(a) of the
Act shall be available to the public notwithstanding any other provision
of this part. Information (other than emission data and standards or
limitations) provided in response to a subpoena issued under section
307(a) of the Act, which is determined under this subpart not to be
entitled to confidential treatment, shall be available to the public,
unless EPA determines that the information is exempt from mandatory
disclosure under 5 U.S.C. 552(b) for reasons other than reasons of
business confidentiality and cannot or should not be made available to
the public.
(g) Disclosure of information relevant to a proceeding. (1) Under
sections 114, 208 and 307 of the Act, any information to which this
section applies may be released by EPA because of the relevance of the
information to a proceeding, notwithstanding the fact that the
information otherwise might be entitled to confidential treatment under
this subpart. Release of information because of its relevance to a
proceeding shall be made only in accordance with this paragraph (g).
(2) In connection with any proceeding other than a proceeding
involving a decision by a presiding officer after an evidentiary or
adjudicatory hearing,
[[Page 52]]
information to which this section applies which may be entitled to
confidential treatment may be made available to the public under this
paragraph (g)(2). No information shall be made available to the public
under this paragraph (g)(2) until any affected business has been
informed that EPA is considering making the information available to the
public under this paragraph (g)(2) in connection with an identified
proceeding, and has afforded the business a reasonable period for
comment (such notice and opportunity to comment may be afforded in
connection with the notice prescribed by Sec. 2.204(d)(1) and Sec.
2.204(e)). Information may be made available to the public under this
paragraph (g)(2) only if, after consideration of any timely comments
submitted by the business, the General Counsel determines that the
information is relevant to the subject of the proceeding and the EPA
office conducting the proceeding determines that the public interest
would be served by making the information available to the public. Any
affected business shall be given at least 5 days' notice by the General
Counsel prior to making the information available to the public.
(3) In connection with any proceeding involving a decision by a
presiding officer after an evidentiary or adjudicatory hearing,
information to which this section applies which may be entitled to
confidential treatment may be made available to the public, or to one or
more parties of record to the proceeding, upon EPA's initiative, under
this paragraph (g)(3). An EPA office proposing disclosure of information
under this paragraph (g)(3), shall so notify the presiding officer in
writing. Upon receipt of such a notification, the presiding officer
shall notify each affected business that disclosure under this paragraph
(g)(3) has been proposed, and shall afford each such business a period
for comment found by the presiding officer to be reasonable under the
circumstances. Information may be disclosed under this paragraph (g)(3)
only if, after consideration of any timely comments submitted by the
business, the EPA office determines in writing that, for reasons
directly associated with the conduct of the proceeding, the contemplated
disclosure would serve the public interest, and the presiding officer
determines in writing that the information is relevant to a matter in
controversy in the proceeding. The presiding officer may condition
disclosure of the information to a party of record on the making of such
protective arrangements and commitments as he finds to be warranted.
Disclosure to one or more parties of record, under protective
arrangements or commitments, shall not, of itself, affect the
eligibility of information for confidential treatment under the other
provisions of this subpart. Any affected business shall be given at
least 5 days notice by the presiding officer prior to making the
information available to the public or to one or more of the parties of
record to the proceeding.
(4) In connection with any proceeding involving a decision by a
presiding officer after an evidentiary or adjudicatory hearing,
information to which this section applies may be made available to one
or more parties of record to the proceeding, upon request of a party,
under this paragraph (g)(4). A party of record seeking disclosure of
information shall direct his request to the presiding officer. Upon
receipt of such a request, the presiding officer shall notify each
affected business that disclosure under this paragraph (g)(4) has been
requested, and shall afford each such business a period for comment
found by the presiding officer to be reasonable under the circumstances.
Information may be disclosed to a party of record under this paragraph
(g)(4) only if, after consideration of any timely comments submitted by
the business, the presiding officer determines in writing that (i) the
party of record has satisfactorily shown that with respect to a
significant matter which is in controversy in the proceeding, the
party's ability to participate effectively in the proceeding will be
significantly impaired unless the information is disclosed to him, and
(ii) any harm to an affected business that would result from the
disclosure is likely to be outweighed by the benefit to the proceeding
and to the public interest that would result from the disclosure. The
presiding officer may condition disclosure of the information to a party
of
[[Page 53]]
record on the making of such protective arrangements and commitments as
he finds to be warranted. Disclosure to one or more parties of record,
under protective arrangements or commitments, shall not, of itself,
affect the eligibility of information to confidential treatment under
the other provisions of this subpart. Any affected business shall be
given at least 5 days notice by the presiding officer prior to making
the information available to one or more of the parties of record to the
proceeding.
(h) Disclosure to authorized representatives. (1) Under sections
114, 208 and 307(a) of the Act, EPA possesses authority to disclose to
any authorized representative of the United States any information to
which this section applies, notwithstanding the fact that the
information might otherwise be entitled to confidential treatment under
this subpart. Such authority may be exercised only in accordance with
paragraph (h) (2) or (3) of this section.
(2)(i) A person under contract or subcontract to the United States
government to perform work in support of EPA in connection with the Act
or regulations which implement the Act may be considered an authorized
representative of the United States for purposes of this paragraph (h).
For purposes of this section, the term ``contract'' includes grants and
cooperative agreements under the Environmental Programs Assistance Act
of 1984 (Pub. L. 98-313), and the term ``contractor'' includes grantees
and cooperators under the Environmental Programs Assistance Act of 1984.
Subject to the limitations in this paragraph (h)(2), information to
which this section applies may be disclosed:
(A) To a contractor or subcontractor with EPA, if the EPA program
office managing the contract first determines in writing that such
disclosure is necessary in order that the contractor or subcontractor
may carry out the work required by the contract or subcontract; or
(B) To a contractor or subcontractor with an agency other than EPA,
if the EPA program office which provides the information to that agency,
contractor, or subcontractor first determines in writing, in
consultation with the General Counsel, that such disclosure is necessary
in order that the contractor or subcontractor may carry out the work
required by the contract or subcontract.
(ii) No information shall be disclosed under this paragraph (h)(2),
unless this contract or subcontract in question provides:
(A) That the contractor or subcontractor and the contractor's or
subcontractor's employees shall use the information only for the purpose
of carrying out the work required by the contract or subcontract, shall
refrain from disclosing the information to anyone other than EPA without
the prior written approval of each affected business or of an EPA legal
office and shall return to EPA all copies of the information (and any
abstracts or extracts therefrom) upon request by the EPA program office,
whenever the information is no longer required by the contractor or
subcontractor for the performance of the work required under the
contract or subcontract, or upon completion of the contract or
subcontract (where the information was provided to the contractor or
subcontractor by an agency other than EPA, the contractor may disclose
or return the information to that agency);
(B) That the contractor or subcontractor shall obtain a written
agreement to honor such terms of the contract or subcontract from each
of the contractor's or subcontractor's employees who will have access to
the information, before such employee is allowed such access; and
(C) That the contractor or subcontractor acknowledges and agrees
that the contract or subcontract provisions concerning the use and
disclosure of business information are included for the benefit of, and
shall be enforceable by, both the United States government and any
affected business having an interest in information concerning it
supplied to the contractor or subcontractor by the United States
government under the contract or subcontract.
(iii) No information shall be disclosed under this paragraph (h)(2)
until each affected business has been furnished notice of the
contemplated disclosure by the EPA program office and has
[[Page 54]]
been afforded a period found reasonable by that office (not less than 5
working days) to submit its comments. Such notice shall include a
description of the information to be disclosed, the identity of the
contractor or subcontractor, the contract or subcontract number, if any,
and the purposes to be served by the disclosure.
(iv) The EPA program office shall prepare a record of each
disclosure under this paragraph (h)(2), showing the contractor or
subcontractor, the contract or subcontract number, the information
disclosed, the date(s) of disclosure, and each affected business. The
EPA program office shall maintain the record of disclosure and the
determination of necessity prepared under paragraph (h)(2)(i) of this
section for a period of not less than 36 months after the date of the
disclosure.
(3) A State or local governmental agency which has duties or
responsibilities under the Act, or under regulations which implement the
Act, may be considered an authorized representative of the United States
for purposes of this paragraph (h). Information to which this section
applies may be furnished to such an agency at the agency's written
request, but only if--
(i) The agency has first furnished to the EPA office having custody
of the information a written opinion from the agency's chief legal
officer or counsel stating that under applicable State or local law the
agency has the authority to compel a business which possesses such
information to disclose it to the agency, or
(ii) Each affected business is informed of those disclosures under
this paragraph (h)(3) which pertain to it, and the agency has shown to
the satisfaction of an EPA legal office that the agency's use and
disclosure of such information will be governed by State or local law
and procedures which will provide adequate protection to the interests
of affected businesses.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40002, Sept. 8, 1978;
43 FR 42251, Sept. 20, 1978; 50 FR 51662, Dec. 18, 1985; 58 FR 461, Jan.
5, 1993; 58 FR 5061, Jan 19, 1993; 58 FR 7189, Feb. 5, 1993]
Sec. 2.302 Special rules governing certain information obtained under
the Clean Water Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Clean Water Act, as amended, 33 U.S.C. 1251 et
seq.
(2)(i) Effluent data means, with reference to any source of
discharge of any pollutant (as that term is defined in section 502(6) of
the Act, 33 U.S.C. 1362 (6))--
(A) Information necessary to determine the identity, amount,
frequency, concentration, temperature, or other characteristics (to the
extent related to water quality) of any pollutant which has been
discharged by the source (or of any pollutant resulting from any
discharge from the source), or any combination of the foregoing;
(B) Information necessary to determine the identity, amount,
frequency, concentration, temperature, or other characteristics (to the
extent related to water quality) of the pollutants which, under an
applicable standard or limitation, the source was authorized to
discharge (including, to the extent necessary for such purpose, a
description of the manner or rate of operation of the source); and
(C) A general description of the location and/or nature of the
source to the extent necessary to identify the source and to distinguish
it from other sources (including, to the extent necessary for such
purposes, a description of the device, installation, or operation
constituting the source).
(ii) Notwithstanding paragraph (a)(2)(i) of this section, the
following information shall be considered to be effluent data only to
the extent necessary to allow EPA to disclose publicly that a source is
(or is not) in compliance with an applicable standard or limitation, or
to allow EPA to demonstrate the feasibility, practicability, or
attainability (or lack thereof) of an existing or proposed standard or
limitation:
(A) Information concerning research, or the results of research, on
any product, method, device, or installation (or any component thereof)
which was produced, developed, installed, and used only for research
purposes; and
[[Page 55]]
(B) Information concerning any product, method, device, or
installation (or any component thereof) designed and intended to be
marketed or used commercially but not yet so marketed or used.
(3) Standard or limitation means any prohibition, any effluent
limitation, or any toxic, pre-treatment or new source performance
standard established or publicly proposed pursuant to the Act or
pursuant to regulations under the Act, including limitations or
prohibitions in a permit issued or proposed by EPA or by a State under
section 402 of the Act, 33 U.S.C. 1342.
(4) Proceeding means any rulemaking, adjudication, or licensing
conducted by EPA under the Act or under regulations which implement the
Act, except for determinations under this part.
(b) Applicability. (1) This section applies only to business
information--
(i) Provided to or obtained by EPA under section 308 of the Act, 33
U.S.C. 1318, by or from the owner or operator of any point source, for
the purpose of carrying out the objective of the Act (including but not
limited to developing or assisting in the development of any standard or
limitation under the Act, or determining whether any person is in
violation of any such standard or limitation); or
(ii) Provided to or obtained by EPA under section 509(a) of the Act,
33 U.S.C. 1369(a).
(2) Information will be considered to have been provided or obtained
under section 308 of the Act if it was provided in response to a request
by EPA made for any of the purposes stated in section 308, or if its
submission could have been required under section 308, regardless of
whether section 308 was cited as the authority for any request for the
information, whether an order to provide the information was issued
under section 309(a)(3) of the Act, 33 U.S.C. 1319(a)(3), whether a
civil action was brought under section 309(b) of the Act, 33 U.S.C.
1319(b), and whether the information was provided directly to EPA or
through some third person.
(3) Information will be considered to have been provided or obtained
under section 509(a) of the Act if it was provided in response to a
subpoena issued under section 509(a), or if its production could have
been required by subpoena under section 509(a), regardless of whether
section 509(a) was cited as the authority for any request for the
information, whether a subpoena was issued by EPA, whether a court
issued an order under section 307(a), or whether the information was
provided directly to EPA or through some third person.
(4) This section specifically does not apply to information obtained
under section 310(d) or 312(g)(3) of the Act, 33 U.S.C. 1320(d),
1322(g)(3).
(c) Basic rules which apply without change. Sections 2.201 through
2.207, 2.209, 2.211 through 2.215 apply without change to information to
which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality determinations.
Section 2.208 applies to information to which this section applies,
except that information which is effluent data or a standard or
limitation is not eligible for confidential treatment. No information to
which this section applies is voluntarily submitted information.
(f) Availability of information not entitled to confidential
treatment. Section 2.210 does not apply to information to which this
section applies. Effluent data, standards or limitations, and any other
information provided or obtained under section 308 of the Act which is
determined under this subpart not to be entitled to confidential
treatment, shall be available to the public notwithstanding any other
provision of this part. Effluent data and standards or limitations
provided in response to a subpoena issued under section 509(a) of the
Act shall be available to the public notwithstanding any other provision
of this part. Information (other than effluent data and standards or
limitations) provided in response to a subpoena issued under section
509(a) of the Act, which is determined under this subpart not to be
entitled to confidential treatment, shall be available to the public,
unless EPA determines that the information is exempt from mandatory
disclosure under 5 U.S.C. 552(b) for reasons other than reasons of
business confidentiality and cannot or should not be made available to
the public.
[[Page 56]]
(g) Disclosure of information relevant to a proceeding. (1) Under
sections 308 and 509(a) of the Act, any information to which this
section applies may be released by EPA because of the relevance of the
information to a proceeding, notwithstanding the fact that the
information otherwise might be entitled to confidential treatment under
this subpart. Release of information to which this section applies
because of its relevance to a proceeding shall be made only in
accordance with this paragraph (g).
(2)-(4) The provisions of Sec. 2.301(g) (2), (3), and (4) are
incorporated by reference as paragraphs (g) (2), (3), and (4),
respectively of this section.
(h) Disclosure to authorized representatives. (1) Under sections 308
and 509(a) of the Act, EPA possesses authority to disclose to any
authorized representative of the United States any information to which
this section applies, notwithstanding the fact that the information
might otherwise be entitled to confidential treatment under this
subpart. Such authority may be exercised only in accordance with
paragraph (h)(2) or (h)(3) of this section.
(2)-(3) The provisions of Sec. 2.301(h) (2) and (3) are
incorporated by reference as paragraphs (h) (2) and (3), respectively,
of this section.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40003, Sept. 8, 1978]
Sec. 2.303 Special rules governing certain information obtained under
the Noise Control Act of 1972.
(a) Definitions. For the purposes of this section:
(1) Act means the Noise Control Act of 1972, 42 U.S.C. 4901 et seq.
(2) Manufacturer has the meaning given it in 42 U.S.C. 4902(6).
(3) Product has the meaning given it in 42 U.S.C. 4902(3).
(4) Proceeding means any rulemaking, adjudication, or licensing
conducted by EPA under the Act or under regulations which implement the
Act, except for determinations under this subpart.
(b) Applicability. This section applies only to information provided
to or obtained by EPA under section 13 of the Act, 42 U.S.C. 4912, by or
from any manufacturer of any product to which regulations under section
6 or 8 of the Act (42 U.S.C. 4905, 4907) apply. Information will be
deemed to have been provided or obtained under section 13 of the Act, if
it was provided in response to a request by EPA made for the purpose of
enabling EPA to determine whether the manufacturer has acted or is
acting in compliance with the Act, or if its submission could have been
required under section 13 of the Act, regardless of whether section 13
was cited as authority for the request, whether an order to provide such
information was issued under section 11(d) of the Act, 42 U.S.C.
4910(d), and whether the information was provided directly to EPA by the
manufacturer or through some third person.
(c) Basic rules which apply without change. Sections 2.201 through
2.207 and 2.209 through 2.215 apply without change to information to
which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality determinations.
Section 2.208 applies without change to information to which this
section applies; however, no information to which this section applies
is voluntarily submitted information.
(f) [Reserved]
(g) Disclosure of information relevant to a proceeding. (1) Under
section 13 of the Act, any information to which this section applies may
be released by EPA because of its relevance to a matter in controversy
in a proceeding, notwithstanding the fact that the information otherwise
might be entitled to confidential treatment under this subpart. Release
of information because of its relevance to a proceeding shall be made
only in accordance with this paragraph (g).
(2)-(4) The provisions of Sec. 2.301(g) (2), (3), and (4) are
incorporated by reference as paragraphs (g) (2), (3), and (4),
respectively, of this section.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40003, Sept. 8, 1978]
Sec. 2.304 Special rules governing certain information obtained under
the Safe Drinking Water Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Safe Drinking Water Act, 42 U.S.C. 300f et seq.
[[Page 57]]
(2) Contaminant means any physical, chemical, biological, or
radiological substance or matter in water.
(3) Proceeding means any rulemaking, adjudication, or licensing
process conducted by EPA under the Act or under regulations which
implement the Act, except for any determination under this part.
(b) Applicability. (1) This section applies only to information--
(i) Which was provided to or obtained by EPA pursuant to a
requirement of a regulation which was issued by EPA under the Act for
the purpose of--
(A) Assisting the Administrator in establishing regulations under
the Act;
(B) Determining whether the person providing the information has
acted or is acting in compliance with the Act; or
(C) Administering any program of financial assistance under the Act;
and
(ii) Which was provided by a person--
(A) Who is a supplier of water, as defined in section 1401(5) of the
Act, 42 U.S.C. 300f(5);
(B) Who is or may be subject to a primary drinking water regulation
under section 1412 of the Act, 42 U.S.C. 300g-1;
(C) Who is or may be subject to an applicable underground injection
control program, as defined in section 1422(d) of the Act, 42
U.S.C.300h-1(d);
(D) Who is or may be subject to the permit requirements of section
1424(b) of the Act, 42 U.S.C. 300h-3(b);
(E) Who is or may be subject to an order issued under section
1441(c) of the Act, 42 U.S.C. 300j(c); or
(F) Who is a grantee, as defined in section 1445(e) of the Act, 42
U.S.C. 300j-4(e).
(2) This section applies to any information which is described by
paragraph (b)(1) of this section if it was provided in response to a
request by EPA or its authorized representative (or by a State agency
administering any program under the Act) made for any purpose stated in
paragraph (b)(1) of this section, or if its submission could have been
required under section 1445 of the Act, 42 U.S.C. 300j-4, regardless of
whether such section was cited in any request for the information, or
whether the information was provided directly to EPA or through some
third person.
(c) Basic rules which apply without change. Sections 2.201 through
2.207, 2.209, and 2.211 through 2.215 apply without change to
information to which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality determinations.
Section 2.208 applies to information to which this section applies,
except that information which deals with the existence, absence, or
level of contaminants in drinking water is not eligible for confidential
treatment. No information to which this section applies is voluntarily
submitted information.
(f) Nondisclosure for reasons other than business confidentiality or
where disclosure is prohibited by other statute. Section 2.210 applies
to information to which this section applies, except that information
which deals with the existence, absence, or level of contaminants in
drinking water shall be available to the public notwithstanding any
other provision of this part.
(g) Disclosure of information relevant to a proceeding. (1) Under
section 1445(d) of the Act, any information to which this section
applies may be released by EPA because of the relevance of the
information to a proceeding, notwithstanding the fact that the
information otherwise might be entitled to confidential treatment under
this subpart. Release of information to which this section applies
because of its relevance to a proceeding shall be made only in
accordance with this paragraph (g).
(2)-(4) The provisions of Sec. 2.301(g) (2), (3), (4) are
incorporated by reference as paragraphs (g) (2), (3), and (4),
respectively, of this section.
(h) Disclosure to authorized representatives. (1) Under section
1445(d) of the Act, EPA possesses authority to disclose to any
authorized representative of the United States any information to which
this section applies, notwithstanding the fact that the information
otherwise might be entitled to confidential treatment under this
subpart. Such authority may be exercised only in accordance with
paragraph (h)(2) or (h)(3) of this section.
(2)-(3) The provisions of Sec. 2.301(h) (2) and (3) are
incorporated by reference as
[[Page 58]]
paragraphs (h) (2) and (3), respectively, of this section.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40003, Sept. 8, 1978]
Sec. 2.305 Special rules governing certain information obtained under
the Solid Waste Disposal Act, as amended.
(a) Definitions. For purposes of this section:
(1) Act means the Solid Waste Disposal Act, as amended, including
amendments made by the Resource Conservation and Recovery Act of 1976,
as amended, 42 U.S.C. 6901 et seq.
(2) Person has the meaning given it in section 1004(15) of the Act,
42 U.S.C. 6903(15).
(3) Hazardous waste has the meaning given it in section 1004(5) of
the Act, 42 U.S.C. 6903(5).
(4) Proceeding means any rulemaking, adjudication, or licensing
conducted by EPA under the Act or under regulations which implement the
Act including the issuance of administrative orders and the approval or
disapproval of plans (e.g. closure plans) submitted by persons subject
to regulation under the Act, but not including determinations under this
subpart.
(b) Applicability. This section applies to information provided to
or obtained by EPA under section 3001(b)(3)(B), 3007, or 9005 of the
Act, 42 U.S.C 6921(b)(3)(B), 6927, or 6995. Information will be
considered to have been provided or obtained under sections
3001(b)(3)(B), 3007, or 9005 of the Act if it was provided in response
to a request from EDA made for any of the purposes stated in the Act or
if its submission could have been required under those provisions of the
Act regardless of whether a specific section was cited as the authority
for any request for the information or whether the information was
provide directly to EPA or through some third person.
(c) Basic rules which apply without change. Sections 2.201 through
2.207 and 2.209 through 2.215 apply without change to information to
which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality determinations.
Section 2.208 applies without change to information to which this
section applies; however, no information to which this section applies
is voluntarily submitted information.
(f) [Reserved]
(g) Disclosure of information relevant in a proceeding. (1) Under
sections 3007(b) and 9005(b) of the Act (42 U.S.C. 6927(b) and 6995(b)),
any information to which this section applies may be disclosed by EPA
because of the relevance of the information in a proceeding under the
Act, notwithstanding the fact that the information otherwise might be
entitled to confidential treatment under this subpart. Disclosure of
information to which this section applies because of its relevance in a
proceeding shall be made only in accordance with this paragraph (g).
(2)-(4) The provisions of Sec. 2.301(g) (2), (3), and (4) are
incorporated by reference as paragraphs (g) (2), (3), and (4),
respectively, of this section.
(h) Disclosure to authorized representatives. (1) Under sections
3001(b)(3)(B), 3007(b), and 9005(b) of the Act (42 U.S.C. 6921(b)(3)(B),
6927(b), and 6995(b)), EPA possesses authority to disclose to any
authorized representative of the United States any information to which
this section applies, notwithstanding the fact that the information
might otherwise be entitled to confidential treatment under this
subpart. Such authority may be exercised only in accordance with
paragraph (h)(2) or (h)(3) of this section.
(2)-(3) The provisions of Sec. 2.301(h) (2) and (3) are
incorporated by reference as paragraphs (h) (2) and (3), respectively,
of this section.
(4) At the time any information is furnished to a contractor,
subcontractor, or State or local government agency under this paragraph
(h), the EPA office furnishing the information to the contractor,
subcontractor, or State or local government agency shall notify the
contractor, subcontractor, or State or local government agency that the
information may be entitled to confidential treatment and that any
knowing and willful disclosure of the information may subject the
contractor, subcontractor, or State or local government agency and its
employees to penalties in section 3001(b)(3)(B), 3007(b)(2), or
9005(b)(1) of
[[Page 59]]
the Act (42 U.S.C. 6921(b)(3)(B), 6927(b), or 6995(b)).
[43 FR 40003, Sept. 8, 1978, as amended at 50 FR 51662, Dec. 18, 1985]
Sec. 2.306 Special rules governing certain information obtained under
the Toxic Substances Control Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Toxic Substances Control Act, 15 U.S.C. 2601 et
seq.
(2) Chemical substance has the meaning given it in section 3(2) of
the Act, 15 U.S.C. 2602(2).
(3)(i) Health and safety data means the information described in
paragraphs (a)(3)(i) (A), (B), and (C) of this section with respect to
any chemical substance or mixture offered for commercial distribution
(including for test marketing purposes and for use in research and
development), any chemical substance included on the inventory of
chemical substances under section 8 of the Act (15 U.S.C. 2607), or any
chemical substance or mixture for which testing is required under
section 4 of the Act (15 U.S.C. 2603) or for which notification is
required under section 5 of the Act (15 U.S.C. 2604).
(A) Any study of any effect of a chemical substance or mixture on
health, on the environment, or on both, including underlying data and
epidemiological studies; studies of occupational exposure to a chemical
substance or mixture; and toxicological, clinical, and ecological
studies of a chemical substance or mixture;
(B) Any test performed under the Act; and
(C) Any data reported to, or otherwise obtained by, EPA from a study
described in paragraph (a)(3)(i)(A) of this section or a test described
in paragraph (a)(3)(i)(B) of this section.
(ii) Notwithstanding paragraph (a)(3)(i) of this section, no
information shall be considered to be health and safety data if
disclosure of the information would--
(A) In the case of a chemical substance or mixture, disclose
processes used in the manufacturing or processing the chemical substance
or mixture or,
(B) In the case of a mixture, disclose the portion of the mixture
comprised by any of the chemical substances in the mixture.
(4) [Reserved]
(5) Mixture has the meaning given it in section 3(8) of the Act, 15
U.S.C. 2602(8).
(6) Proceeding means any rulemaking, adjudication, or licensing
conducted by EPA under the Act or under regulations which implement the
Act, except for determinations under this subpart.
(b) Applicability. This section applies to all information submitted
to EPA for the purpose of satisfying some requirement or condition of
the Act or of regulations which implement the Act, including information
originally submitted to EPA for some other purpose and either relied
upon to avoid some requirement or condition of the Act or incorporated
into a submission in order to satisfy some requirement or condition of
the Act or of regulations which implement the Act. Information will be
considered to have been provided under the Act if the information could
have been obtained under authority of the Act, whether the Act was cited
as authority or not, and whether the information was provided directly
to EPA or through some third person.
(c) Basic rules which apply without change. Sections 2.201 through
2.203, 2.206, 2.207, and 2.210 through 2.215 apply without change to
information to which this section applies.
(d) Initial action by EPA office. Section 2.204 applies to
information to which this section applies, except that the provisions of
paragraph (e)(3) of this section regarding the time allowed for seeking
judicial review shall be reflected in any notice furnished to a business
under Sec. 2.204(d)(2).
(e) Final confidentiality determination by EPA legal office. Section
2.205 applies to information to which this section applies, except
that--
(1) Notwithstanding Sec. 2.205(i), the General Counsel (or his
designee), rather than the regional counsel, shall make the
determinations and take the actions required by Sec. 2.205;
(2) In addition to the statement prescribed by the second sentence
of Sec. 2.205(f)(2), the notice of denial of a business confidentiality
claim shall state that under section 20(a) of the Act, 15 U.S.C. 2619,
the business may
[[Page 60]]
commence an action in an appropriate Federal district court to prevent
disclosure.
(3) The following sentence is substituted for the third sentence of
Sec. 2.205(f)(2): ``With respect to EPA's implementation of the
determination, the notice shall state that (subject to Sec. 2.210) EPA
will make the information available to the public on the thirty-first
(31st) calendar day after the date of the business' receipt of the
written notice (or on such later date as is established in lieu thereof
under paragraph (f)(3) of this section), unless the EPA legal office has
first been notified of the business' commencement of an action in a
Federal court to obtain judicial review of the determination and to
obtain preliminary injunctive relief against disclosure.''; and
(4) Notwithstanding Sec. 2.205(g), the 31 calendar day period
prescribed by Sec. 2.205(f)(2), as modified by paragraph (e)(3) of this
section, shall not be shortened without the consent of the business.
(f) [Reserved]
(g) Substantive criteria for use in confidentiality determinations.
Section 2.208 applies without change to information to which this
section applies, except that health and safety data are not eligible for
confidential treatment. No information to which this section applies is
voluntarily submitted information.
(h) Disclosure in special circumstances. Section 2.209 applies to
information to which this section applies, except that the following two
additional provisions apply to Sec. 2.209(c):
(1) The official purpose for which the information is needed must be
in connection with the agency's duties under any law for protection of
health or the environment or for specific law enforcement purposes; and
(2) EPA notifies the other agency that the information was acquired
under authority of the Act and that any knowing disclosure of the
information may subject the officers and employees of the other agency
to the penalties in section 14(d) of the Act (15 U.S.C. 2613(d)).
(i) Disclosure of information relevant in a proceeding. (1) Under
section 14(a)(4) of the Act (15 U.S.C. 2613(a)(4)), any information to
which this section applies may be disclosed by EPA when the information
is relevant in a proceeding under the Act, notwithstanding the fact that
the information otherwise might be entitled to confidential treatment
under this subpart. However, any such disclosure shall be made in a
manner that preserves the confidentiality of the information to the
extent practicable without impairing the proceeding. Disclosure of
information to which this section applies because of its relevance in a
proceeding shall be made only in accordance with this paragraph (i).
(2)-(4) The provisions of Sec. 2.301(g) (2), (3), and (4) are
incorporated by reference as paragraphs (i) (2), (3), and (4),
respectively, of this section.
(j) Disclosure of information to contractors and subcontractors. (1)
Under section 14(a)(2) of the Act (15 U.S.C. 2613(a)(2)), any
information to which this section applies may be disclosed by EPA to a
contractor or subcontractor of the United States performing work under
the Act, notwithstanding the fact that the information otherwise might
be entitled to confidential treatment under this subpart. Subject to the
limitations in this paragraph (j), information to which this section
applies may be disclosed:
(i) To a contractor or subcontractor with EPA, if the EPA program
office managing the contract first determines in writing that such
disclosure is necessary for the satisfactory performance by the
contractor or subcontractor of the contract or subcontract; or
(ii) To a contractor or subcontractor with an agency other than EPA,
if the EPA program office which provides the information to that agency,
contractor, or subcontractor first determines in writing, in
consultation with the General Counsel, that such disclosure is necessary
for the satisfactory performance by the contractor or subcontractor of
the contract or subcontract.
(2)-(4) The provisions of Sec. 2.301(h)(2) (ii), (iii), and (iv)
are incorporated by reference as paragraphs (j) (2), (3), and (4),
respectively, of this section.
(5) At the time any information is furnished to a contractor or
subcontractor under this paragraph (j), the EPA office furnishing the
information
[[Page 61]]
to the contractor or subcontractor shall notify the contractor or
subcontractor that the information was acquired under authority of the
Act and that any knowing disclosure of the information may subject the
contractor or subcontractor and its employees to the penalties in
section 14(d) of the Act (15 U.S.C. 2613(d)).
(k) Disclosure of information when necessary to protect health or
the environment against an unreasonable risk of injury. (1) Under
section 14(a)(3) of the Act (15 U.S.C 2613(a)(3)), any information to
which this section applies may be disclosed by EPA when disclosure is
necessary to protect health or the environment against an unreasonable
risk of injury to health or the environment. However, any disclosure
shall be made in a manner that preserves the confidentiality of the
information to the extent not inconsistent with protecting health or the
environment against the unreasonable risk of injury. Disclosure of
information to which this section applies because of the need to protect
health or the environment against an unreasonable risk of injury shall
be made only in accordance with this paragraph (k).
(2) If any EPA office determines that there is an unreasonable risk
of injury to health or the environment and that to protect health or the
environment against the unreasonable risk of injury it is necessary to
disclose information to which this section applies that otherwise might
be entitled to confidential treatment under this subpart, the EPA office
shall notify the General Counsel in writing of the nature of the
unreasonable risk of injury, the extent of the disclosure proposed, how
the proposed disclosure will serve to protect health or the environment
against the unreasonable risk of injury, and the proposed date of
disclosure. Such notification shall be made as soon as practicable after
discovery of the unreasonable risk of injury. If the EPA office
determines that the risk of injury is so imminent that it is
impracticable to furnish written notification to the General Counsel,
the EPA office shall notify the General Counsel orally.
(3) Upon receipt of notification under paragraph (k)(2) of this
section, the General Counsel shall make a determination in writing
whether disclosure of information to which this section applies that
otherwise might be entitled to confidential treatment is necessary to
protect health or the environment against an unreasonable risk of
injury. The General Counsel shall also determine the extent of
disclosure necessary to protect against the unreasonable risk of injury
as well as when the disclosure must be made to protect against the
unreasonable risk of injury.
(4) If the General Counsel determines that disclosure of information
to which this section applies that otherwise might be entitled to
confidential treatment is necessary to protect health or the environment
against an unreasonable risk of injury, the General Counsel shall
furnish notice to each affected business of the contemplated disclosure
and of the General Counsel's determination. Such notice shall be made in
writing by certified mail, return receipt requested, at least 15 days
before the disclosure is to be made. The notice shall state the date
upon which disclosure will be made. However, if the General Counsel
determines that the risk of injury is so imminent that it is
impracticable to furnish such notice 15 days before the proposed date of
disclosure, the General Counsel may provide notice by means that will
provide receipt of the notice by the affected business at least 24 hours
before the disclosure is to be made. This may be done by telegram,
telephone, or other reasonably rapid means.
[43 FR 40003, Sept. 8, 1978, as amended at 44 FR 17674, Mar. 23, 1979;
58 FR 462, Jan. 5, 1993]
Sec. 2.307 Special rules governing certain information obtained under
the Federal Insecticide, Fungicide and Rodenticide Act.
(a) Definitions. For the purposes of this section;
(1) Act means the Federal Insecticide, Fungicide and Rodenticide
Act, as amended, 7 U.S.C. 136 et seq., and its predecessor, 7 U.S.C. 135
et seq.
(2) Applicant means any person who has submitted to EPA (or to a
predecessor agency with responsibility for administering the Act) a
registration
[[Page 62]]
statement or application for registration under the Act of a pesticide
or of an establishment.
(3) Registrant means any person who has obtained registration under
the Act of a pesticide or of an establishment.
(b) Applicability. This section applies to all information submitted
to EPA by an applicant or registrant for the purpose of satisfying some
requirement or condition of the Act or of regulations which implement
the Act, including information originally submitted to EPA for some
other purpose but incorporated by the applicant or registrant into a
submission in order to satisfy some requirement or condition of the Act
or of regulations which implement the Act. This section does not apply
to information supplied to EPA by a petitioner in support of a petition
for a tolerance under 21 U.S.C. 346a(d), unless the information is also
described by the first sentence of this paragraph.
(c) Basic rules which apply without change. Sections 2.201 through
2.203, 2.206, 2.207, and 2.210 through 2.215 apply without change to
information to which this section applies.
(d) Initial action by EPA office. Section 2.204 applies to
information to which this section applies, except that the provisions of
paragraph (e) of this section regarding the time allowed for seeking
judicial review shall be reflected in any notice furnished to a business
under Sec. 2.204(d)(2).
(e) Final confidentiality determination by EPA legal office. Section
2.205 applies to information to which this section applies, except
that--
(1) Notwithstanding Sec. 2.205(i), the General Counsel (or his
designee), rather than the Regional Counsel, shall make the
determinations and take the actions required by Sec. 2.205;
(2) In addition to the statement prescribed by the second sentence
of Sec. 2.205(f)(2), the notice of denial of a business confidentiality
claim shall state that under section 10(c) of the Act, 7 U.S.C. 136h(c),
the business may commence an action in an appropriate Federal district
court for a declaratory judgment;
(3) The following sentence is substituted for the third sentence of
Sec. 2.205(f)(2): ``With respect to EPA's implementation of the
determination, the notice shall state that (subject to Sec. 2.210) EPA
will make the information available to the public on the thirty-first
(31st) calendar day after the date of the business's receipt of the
written notice (or on such later date as is established in lieu thereof
under paragraph (f)(3) of this section), unless the EPA legal office has
first been notified of the business's commencement of an action in a
Federal court to obtain judicial review of the determination or to
obtain a declaratory judgment under section 10(c) of the Act and to
obtain preliminary injunctive relief against disclosure.''; and
(4) Notwithstanding Sec. 2.205(g), the 31 calendar day period
prescribed by Sec. 2.205(f)(2), as modified by paragraph (e)(3) of this
section, shall not be shortened without the consent of the business.
(f) [Reserved]
(g) Substantive criteria for use in confidentiality determinations.
Section 2.208 applies without change to information to which this
section applies; however, no information to which this section applies
is voluntarily submitted information.
(h) Disclosure in special circumstances. (1) Section 2.209 applies
without change to information to which this section applies. In
addition, under section 12(a)(2)(D) of the Act, 7 U.S.C. 136j(a)(2)(D),
EPA possesses authority to disclose any information to which this
section applies to physicians, pharmacists, and other qualified persons
needing such information for the performance of their duties,
notwithstanding the fact that the information might otherwise be
entitled to confidential treatment under this subpart. Such authority
under section 12(a)(2)(D) of the Act may be exercised only in accordance
with paragraph (h)(2) or (h)(3) of this section.
(2) Information to which this section applies may be disclosed
(notwithstanding the fact that it might otherwise be entitled to
confidential treatment under this subpart) to physicians, pharmacists,
hospitals, veterinarians, law enforcement personnel, or governmental
agencies with responsibilities for protection of public health, and to
[[Page 63]]
employees of any such persons or agencies, or to other qualified
persons, when and to the extent that disclosure is necessary in order to
treat illness or injury or to prevent imminent harm to persons,
property, or the environment, in the opinion of the Administrator or his
designee.
(3) Information to which this section applies may be disclosed
(notwithstanding the fact that it otherwise might be entitled to
confidential treatment under this subpart) to a person under contract to
EPA to perform work for EPA in connection with the Act or regulations
which implement the Act, if the EPA program office managing the contract
first determines in writing that such disclosure is necessary in order
that the contractor may carry out the work required by the contract. Any
such disclosure to a contractor shall be made only in accordance with
the procedure and requirements of Sec. 2.301(h)(2) (ii) through (iv).
(4) Information to which this section applies, and which relates to
formulas of products, may be disclosed at any public hearing or in
findings of fact issued by the Administrator, to the extent and in the
manner authorized by the Administrator or his designee.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40005, Sept. 8, 1978]
Sec. 2.308 Special rules governing certain information obtained under
the Federal Food, Drug and Cosmetic Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Federal Food, Drug and Cosmetic Act, as amended,
21 U.S.C. 301 et seq.
(2) Petition means a petition for the issuance of a regulation
establishing a tolerance for a pesticide chemical or exempting the
pesticide chemical from the necessity of a tolerance, pursuant to
section 408(d) of the Act, 21 U.S.C. 346a(d).
(3) Petitioner means a person who has submitted a petition to EPA
(or to a predecessor agency).
(b) Applicability. (1) This section applies only to business
information submitted to EPA (or to an advisory committee established
under the Act) by a petitioner, solely in support of a petition which
has not been acted on by the publication by EPA of a regulation
establishing a tolerance for a pesticide chemical or exempting the
pesticide chemical from the necessity of a tolerance, as provided in
section 408(d) (2) or (3) of the Act, 21 U.S.C. 346a(d) (2) or (3).
(2) Section 2.307, rather than this section, applies to information
described by the first sentence of Sec. 2.307(b) (material incorporated
into submissions in order to satisfy the requirements of the Federal
Insecticide, Fungicide and Rodenticide Act, as amended), even though
such information was originally submitted by a petitioner in support of
a petition.
(3) This section does not apply to information gathered by EPA under
a proceeding initiated by EPA to establish a tolerance under section
408(e) of the Act, 21 U.S.C. 346a(e).
(c) Basic rules which apply without change. Sections 2.201, 2.202,
2.206, 2.207, and 2.210 through 2.215 apply without change to
information to which this section applies.
(d) Effect of submission of information without claim. Section 2.203
(a) and (b) apply without change to information to which this section
applies. Section 2.203(c), however, does not apply to information to
which this section applies. A petitioner's failure to assert a claim
when initially submitting a petition shall not constitute a waiver of
any claim the petitioner may have.
(e) Initial action by EPA office. Section 2.204 applies to
information to which this section applies, except that--
(1) Unless the EPA office has on file a written waiver of a
petitioner's claim, a petitioner shall be regarded as an affected
business, a petition shall be treated as if it were covered by a
business confidentiality claim, and an EPA office acting under Sec.
2.204(d) shall determine that the information in the petition is or may
be entitled to confidential treatment and shall take action in
accordance with Sec. 2.204(d)(1);
(2) In addition to other required provisions of any notice furnished
to a petitioner under Sec. 2.204(e), such notice shall state that--
(i) Section 408(f) of the Act, 21 U.S.C. 346a(f), affords absolute
confidentiality
[[Page 64]]
to information to which this section applies, but after publication by
EPA of a regulation establishing a tolerance (or exempting the pesticide
chemical from the necessity of a tolerance) neither the Act nor this
section affords any protection to the information;
(ii) Information submitted in support of a petition which is also
incorporated into a submission in order to satisfy a requirement or
condition of the Federal Insecticide, Fungicide and Rodenticide Act, as
amended, 7 U.S.C. 136 et seq., is regarded by EPA as being governed,
with respect to business confidentiality, by Sec. 2.307 rather than by
this section;
(iii) Although it appears that this section may apply to the
information at this time, EPA is presently engaged in determining
whether for any reason the information is entitled to confidential
treatment or will be entitled to such treatment if and when this section
no longer applies to the information; and
(iv) Information determined by EPA to be covered by this section
will not be disclosed for as long as this section continues to apply,
but will be made available to the public thereafter (subject to Sec.
2.210) unless the business furnishes timely comments in response to the
notice.
(f) Final confidentiality determination by EPA legal office. Section
2.205 applies to information to which this section applies, except
that--
(1) Notwithstanding Sec. 2.205(i), the General Counsel or his
designee, rather than the Regional counsel, shall in all cases make the
determinations and take the actions required by Sec. 2.205;
(2) In addition to the circumstances mentioned in Sec. 2.205(f)(1),
notice in the form prescribed by Sec. 2.205(f)(2) shall be furnished to
each affected business whenever information is found to be entitled to
confidential treatment under section 408(f) of the Act but not otherwise
entitled to confidential treatment. With respect to such cases, the
following sentences shall be substituted for the third sentence of Sec.
2.205(f)(2): ``With respect to EPA's implementation of the
determination, the notice shall state that (subject to Sec. 2.210) EPA
will make the information available to the public on the thirty-first
(31st) calendar day after the business's receipt of the written notice
(or on such later date as is established in lieu thereof under paragraph
(f)(3) of this section), unless the EPA legal office has first been
notified of the business's commencement of an action in a Federal court
to obtain judicial review of the determination and to obtain preliminary
injunctive relief against disclosure; provided, that the information
will not be made available to the public for so long as it is entitled
to confidential treatment under section 408(f) of the Federal Food, Drug
and Cosmetic Act, 21 U.S.C. 346a(f).''; and
(3) Notwithstanding Sec. 2.205(g), the 31 calendar day period
prescribed by Sec. 2.205(f)(2), as modified by paragraph (f)(2) of this
section, shall not be shortened without the consent of the business.
(g) [Reserved]
(h) Substantive criteria for use in confidentiality determinations.
Section 2.208 does not apply to information to which this section
applies. Such information shall be determined to be entitled to
confidential treatment for so long as this section continues to apply to
it.
(i) Disclosure in special circumstances. (1) Section 2.209 applies
to information to which this section applies. In addition, under Section
408(f) of the Act, 21 U.S.C. 346a(f), EPA is authorized to disclose the
information to other persons. Such authority under section 408(f) of the
Act may be exercised only in accordance with paragraph (i)(2) or (i)(3)
of this section.
(2) Information to which this section applies may be disclosed
(notwithstanding the fact that it otherwise might be entitled to
confidential treatment under this subpart) to a person under contract to
EPA to perform work for EPA in connection with the Act, with the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended, or regulations
which implement either such Act, if the EPA program office managing the
contract first determines in writing that such disclosure is necessary
in order that the contractor may carry out the work required by the
contract. Any such disclosure to a
[[Page 65]]
contractor shall be made only in accordance with the procedures and
requirements of Sec. 2.301(h)(2) (ii) through (iv).
(3) Information to which this section applies may be disclosed by
EPA to an advisory committee in accordance with section 408(d) of the
Act, 21 U.S.C. 346a(d).
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40005, Sept. 8, 1978]
Sec. 2.309 Special rules governing certain information obtained under
the Marine Protection, Research and Sanctuaries Act of 1972.
(a) Definitions. For the purposes of this section:
(1) Act means the Marine Protection, Research and Sanctuaries Act of
1972, 33 U.S.C. 1401 et seq.
(2) Permit means any permit applied for or granted under the Act.
(3) Application means an application for a permit.
(b) Applicability. This section applies to all information provided
to or obtained by EPA as a part of any application or in connection with
any permit.
(c) Basic rules which apply without change. Sections 2.201 through
2.207 and 2.209 through 2.215 apply without change to information to
which this section applies.
(d) Substantive criteria for use in confidentiality determinations.
Section 2.208 does not apply to information to which this section
applies. Pursuant to section 104(f) of the Act, 33 U.S.C. 1414(f), no
information to which this section applies is eligible for confidential
treatment.
[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40005, Sept. 8, 1978]
Sec. 2.310 Special rules governing certain information obtained under
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended.
(a) Definitions. For purposes of this section:
(1) Act means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, including
amendments made by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. 9601, et seq.
(2) Person has the meaning given it in section 101(21) of the Act,
42 U.S.C. 9601(21).
(3) Facility has the meaning given it in section 101(9) of the Act,
42 U.S.C. 9601(9).
(4) Hazardous substance has the meaning given it in section 101(14)
of the Act, 42 U.S.C. 9601(14).
(5) Release has the meaning given it in section 101(22) of the Act,
42 U.S.C. 9601(22).
(6) Proceeding means any rulemaking or adjudication conducted by EPA
under the Act or under regulations which implement the Act (including
the issuance of administrative orders under section 106 of the Act and
cost recovery pre-litigation settlement negotiations under sections 107
or 122 of the Act), any cost recovery litigation under section 107 of
the Act, or any administrative determination made under section 104 of
the Act, but not including determinations under this subpart.
(b) Applicability. This section applies only to information provided
to or obtained by EPA under section 104 of the Act, 42 U.S.C. 9604, by
or from any person who stores, treats, or disposes of hazardous wastes;
or where necessary to ascertain facts not available at the facility
where such hazardous substances are located, by or from any person who
generates, transports, or otherwise handles or has handled hazardous
substances, or by or from any person who performs or supports removal or
remedial actions pursuant to section 104(a) of the Act. Information will
be considered to have been provided or obtained under section 104 of the
Act if it was provided in response to a request from EPA or a
representative of EPA made for any of the purposes stated in section
104, if it was provided pursuant to the terms of a contract, grant or
other agreement to perform work pursuant to section 104, or if its
submission could have been required under section 104, regardless of
whether section 104 was cited as authority for any request for the
information or whether the information was provided directly to EPA or
through some third person.
(c) Basic rules which apply without change. Sections 2.201 through
2.207 and
[[Page 66]]
Sec. Sec. 2.209 through 2.215 apply without change to information to
which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality determinations.
Section 2.208 applies without change to information to which this
section applies; however, no information to which this section applies
is voluntarily submitted information.
(f) [Reserved]
(g)(1) Under section 104(e)(7)(A) of the Act (42 U.S.C.
9604(e)(7)(A)) any information to which this section applies may be
disclosed by EPA because of the relevance of the information in a
proceeding under the Act, notwithstanding the fact that the information
otherwise might be entitled to confidential treatment under this
subpart. Disclosure of information to which this section applies because
of its relevance in a proceeding shall be made only in accordance with
this paragraph (g).
(2) The provisions of Sec. 2.301(g)(2) are to be used as paragraph
(g)(2) of this section.
(3) In connection with any proceeding involving a decision by a
presiding officer after an evidentiary or adjudicatory hearing, except
with respect to litigation conducted by a Federal court, information to
which this section applies which may be entitled to confidential
treatment may be made available to the public, or to one or more parties
of record to the proceeding, upon EPA's initiative, under this paragraph
(g)(3). An EPA office proposing disclosure of information under this
paragraph (g)(3) shall so notify the presiding officer in writing. Upon
receipt of such a notification, the presiding officer shall notify each
affected business that disclosure under this paragraph (g)(3) has been
proposed, and shall afford each such business a period for comment found
by the presiding officer to be reasonable under the circumstances.
Information may be disclosed under this paragraph (g)(3) only if, after
consideration of any timely comments submitted by the business, the EPA
office determines in writing that, for reasons directly associated with
the conduct of the proceeding, the contemplated disclosure would serve
the public interest, and the presiding officer determines in writing
that the information is relevant to a matter in controversy in the
proceeding. The presiding officer may condition disclosure of the
information to a party of record on the making of such protective
arrangements and commitments as he finds to be warranted. Disclosure to
one or more parties of record, under protective arrangements or
commitments, shall not, of itself, affect the eligibility of information
for confidential treatment under the other provisions of this subpart.
Any affected business shall be given at least 5 days notice by the
presiding officer prior to making the information available to the
public or to one or more of the parties of record to the proceeding.
(4) In connection with any proceeding involving a decision by a
presiding officer after an evidentiary or adjudicatory hearing, except
with respect to litigation conducted by a Federal court, information to
which this section applies which may be entitled to confidential
treatment may be made available to one or more parties of record to the
proceeding, upon request of a party, under this paragraph (g)(4). A
party of record seeking disclosure of information shall direct his
request to the presiding officer. Upon receipt of such a request, the
presiding officer shall notify each affected business that disclosure
under this paragraph (g)(4) has been requested, and shall afford each
such business a period for comment found by the presiding officer to be
reasonable under the circumstances. Information may be disclosed to a
party of record under this paragraph (g)(4) only if, after consideration
of any timely comments submitted by the business, the presiding officer
determines in writing that:
(i) The party of record has satisfactorily shown that with respect
to a significant matter which is in controversy in the proceeding, the
party's ability to participate effectively in the proceeding will be
significantly impaired unless the information is disclosed to him; and
(ii) Any harm to an affected business that would result from the
disclosure is likely to be outweighed by the benefit
[[Page 67]]
to the proceeding and the public interest that would result from the
disclosure.
The presiding officer may condition disclosure of the information to a
party of record on the making of such protective arrangements and
commitments as he finds to be warranted. Disclosure to one or more
parties of record, under protective arrangements or commitments, shall
not, of itself, affect the eligibility of information for confidential
treatment under the other provisions of this subpart. Any affected
business shall be given at least 5 days notice by the presiding officer
prior to making the information available to one or more of the parties
of record to the proceeding.
(5) In connection with cost recovery pre-litigation settlement
negotiations under sections 107 or 122 of the Act (42 U.S.C. 9607,
9622), any information to which this section applies that may be
entitled to confidential treatment may be made available to potentially
responsible parties pursuant to a contractual agreement to protect the
information.
(6) In connection with any cost recovery proceeding under section
107 of the Act involving a decision by a presiding officer after an
evidentiary or adjudicatory hearing, any information to which this
section applies that may be entitled to confidential treatment may be
made available to one or more parties of record to the proceeding, upon
EPA's initiative, under this paragraph (g)(6). Such disclosure must be
made pursuant to a stipulation and protective order signed by all
parties to whom disclosure is made and by the presiding officer.
(h) Disclosure to authorized representatives. (1) Under section
104(e)(7) of the Act (42 U.S.C. 9604(e)(7)), EPA possesses authority to
disclose to any authorized representative of the Untied States any
information to which this section applies, notwithstanding the fact that
the information might otherwise be entitled to confidential treatment
under this subpart. Such authority may be exercised only in accordance
with paragraph (h)(2) or (h)(3) of this section.
(2) The provisions of Sec. 2.301(h)(2) are to be used as paragraph
(h)(2) of this section.
(3) The provisions of Sec. 2.301(h)(3) are to be used as paragraph
(h)(3) of this section.
(4) At the time any information is furnished to a contractor,
subcontractor, or State or local government under this paragraph (h),
the EPA office furnishing the information to the contractor,
subcontractor, or State or local government agency shall notify the
contractor, subcontractor, or State or local government agency that the
information may be entitled to confidential treatment and that any
knowing and willful disclosure of the information may subject the
contractor, subcontractor, or State or local government agency and its
employees to penalties in section 104(e)(7)(B) of the Act (42 U.S.C.
9604(e)(7)(B)).
[50 FR 51663, Dec. 18, 1985, as amended at 58 FR 462, Jan. 5, 1993]
Sec. 2.311 Special rules governing certain information obtained under
the Motor Vehicle Information and Cost Savings Act.
(a) Definitions. For the purposes of this section:
(1) Act means the Motor Vehicle Information and Cost Savings Act, as
amended, 15 U.S.C. 1901 et seq.
(2) Average fuel economy has the meaning given it in section 501(4)
of the Act, 15 U.S.C. 2001(4).
(3) Fuel economy has the meaning given it in section 501(6) of the
Act, 15 U.S.C. 2001(6).
(4) Fuel economy data means any measurement or calculation of fuel
economy for any model type and average fuel economy of a manufacturer
under section 503(d) of the Act, 15 U.S.C. 2003(d).
(5) Manufacturer has the meaning given it in section 501(9) of the
Act, 15 U.S.C. 2001(9).
(6) Model type has the meaning given it in section 501(11) of the
Act, 15 U.S.C. 2001(11).
(b) Applicability. This section applies only to information provided
to or obtained by EPA under Title V, Part A of the Act, 15 U.S.C. 2001
through 2012. Information will be considered to have been provided or
obtained under Title V, Part A of the Act if it was provided in response
to a request from EPA made for any purpose stated in Title V,
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Part A, or if its submission could have been required under Title V Part
A, regardless of whether Title V Part A was cited as the authority for
any request for information or whether the information was provided
directly to EPA or through some third person.
(c) Basic rules which apply without change. Sections 2.201 through
2.207 and Sec. Sec. 2.209 through 2.215 apply without change to
information to which this section applies.
(d) [Reserved]
(e) Substantive criteria for use in confidentiality determinations.
Section 2.208 applies without change to information to which this
section applies, except that information this is fuel economy data is
not eligible for confidential treatment. No information to which this
section applies is voluntarily submitted information.
(f) [Reserved]
(g) Disclosure of information relevant to a proceeding. (1) Under
section 505(d)(1) of the Act, any information to which this section
applies may be released by EPA because of the relevance of the
information to a proceeding under Title V, Part A of the Act,
notwithstanding the fact that the information otherwise might be
entitled to confidential treatment under this subpart. Release of
information to which this section applies because of its relevance to a
proceeding shall be made only in accordance with this paragraph (g).
(2) The provisions of Sec. 2.301(g)(2) are to be used as paragraph
(g)(2) of this section.
(3) The provisions of Sec. 2.301(g)(3) are to be used as paragraph
(g)(3) of this section.
(4) The provisions of Sec. 2.301(g)(4) are to be used as paragraph
(g)(3) of this section.
[50 FR 51663, Dec. 18, 1985]
Subpart C_Testimony by Employees and Production of Documents in Civil
Legal Proceedings Where the United States Is Not a Party
Authority: 5 U.S.C. 301; Reorganization Plan No. 3 of 1970, 5 U.S.C.
App.; 33 U.S.C. 361(a); 42 U.S.C. 300j-9; 42 U.S.C. 6911a, 42 U.S.C.
7601(a).
Source: 50 FR 32387, Aug. 9, 1985, unless otherwise noted.
Sec. 2.401 Scope and purpose.
This subpart sets forth procedures to be followed when an EPA
employee is requested or subpoenaed to provide testimony concerning
information acquired in the course of performing official duties or
because of the employee's official status. (In such cases, employees
must state for the record that their testimony does not necessarily
represent the official position of EPA. If they are called to state the
official position of EPA, they should ascertain that position before
appearing.) These procedures also apply to subpoenas duces tecum for any
document in the possession of EPA and to requests for certification of
copies of documents.
(a) These procedures apply to:
(1) State court proceedings (including grand jury proceedings);
(2) Federal civil proceedings, except where the United States, EPA
or another Federal agency is a party; and
(3) State and local legislative and administrative proceedings.
(b) These procedures do not apply:
(1) To matters which are not related to EPA;
(2) To Congressional requests or subpoenas for testimony or
documents;
(3) Where employees provide expert witness services as approved
outside activities in accordance with 40 CFR part 3, subpart E (in such
cases, employees must state for the record that the testimony represents
their own views and does not necessarily represent the official position
of EPA);
(4) Where employees voluntarily testify as private citizens with
respect to environmental matters (in such cases, employees must state
for the record that the testimony represents their own views and does
not necessarily represent the official position of EPA).
(c) The purpose of this subpart is to ensure that employees'
official time is used only for official purposes, to maintain the
impartiality of EPA among private litigants, to ensure that public funds
are not used for private purposes and to establish procedures for
approving testimony or production of documents when clearly in the
interests of EPA.
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Sec. 2.402 Policy on presentation of testimony and production of
documents.
(a) With the approval of the cognizant Assistant Administrator,
Office Director, Staff Office Director or Regional Administrator or his
designee, EPA employees (as defined in 40 CFR 3.102 (a) and (b)) may
testify at the request of another Federal agency, or, where it is in the
interests of EPA, at the request of a State or local government or State
legislative committee.
(b) Except as permitted by paragraph (a) of this section, no EPA
employee may provide testimony or produce documents in any proceeding to
which this subpart applies concerning information acquired in the course
of performing official duties or because of the employee's official
relationship with EPA, unless authorized by the General Counsel or his
designee under Sec. Sec. 2.403 through 2.406.
Sec. 2.403 Procedures when voluntary testimony is requested.
A request for testimony by an EPA employee under Sec. 2.402(b) must
be in writing and must state the nature of the requested testimony and
the reasons why the testimony would be in the interests of EPA. Such
requests are immediately sent to the General Counsel or his designee
(or, in the case of employees in the Office of Inspector General, the
Inspector General or his designee) with the recommendations of the
employee's supervisors. The General Counsel or his designee, in
consultation with the appropriate Assistant Administrator, Regional
Administrator, or Staff Office Director (or, in the case of employees in
the Office of Inspector General, the Inspector General or his designee),
determines whether compliance with the request would clearly be in the
interests of EPA and responds as soon as practicable.
Sec. 2.404 Procedures when an employee is subpoenaed.
(a) Copies of subpoenas must immediately be sent to the General
Counsel or his designee with the recommendations of the employee's
supervisors. The General Counsel or his designee, in consultation with
the appropriate Assistant Administrator, Regional Administrator or Staff
Office Director, determines whether compliance with the subpoena would
clearly be in the interests of EPA and responds as soon as practicable.
(b) If the General Counsel or his designee denies approval to comply
with the subpoena, or if he has not acted by the return date, the
employee must appear at the stated time and place (unless advised by the
General Counsel or his designee that the subpoena was not validly issued
or served or that the subpoena has been withdrawn), produce a copy of
these regulations and respectfully refuse to provide any testimony or
produce any documents. United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951).
(c) Where employees in the Office of Inspector General are
subpoenaed, the Inspector General or his designee makes the
determination under paragraphs (a) and (b) of this section in
consultation with the General Counsel.
(d) The General Counsel will request the assistance of the
Department of Justice or a U.S. Attorney where necessary to represent
the interests of the Agency and the employee.
Sec. 2.405 Subpoenas duces tecum.
Subpoenas duces tecum for documents or other materials are treated
the same as subpoenas for testimony. Unless the General Counsel or his
designee, in consultation with the appropriate Assistant Administrator,
Regional Administrator or Staff Office Director (or, as to employees in
the Office of Inspector General, the Inspector General) determines that
compliance with the subpoena is clearly in the interests of EPA, the
employee must appear at the stated time and place (unless advised by the
General Counsel or his designee that the subpoena was not validly issued
or served or that the subpoena has been withdrawn) and respectfully
refuse to produce the subpoenaed materials. However, where a subpoena
duces tecum is essentially a written request for documents, the
requested documents will be provided or denied in accordance with
subparts A and B of this part where approval to respond to the subpoena
has not been granted.
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Sec. 2.406 Requests for authenticated copies of EPA documents.
Requests for authenticated copies of EPA documents for purposes of
admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules of
Civil Procedure will be granted for documents which would otherwise be
released pursuant to subpart A. For purposes of Rule 44 the person
having legal custody of the record is the cognizant Assistant
Administrator, Regional Administrator, Staff Office Director or Office
Director or his designee. The advice of the Office of General Counsel
should be obtained concerning the proper form of authentication.
PART 3_CROSS-MEDIA ELECTRONIC REPORTING--Table of Contents
Subpart A_General Provisions
Sec.
3.1 Who does this part apply to?
3.2 How does this part provide for electronic reporting?
3.3 What definitions are applicable to this part?
3.4 How does this part affect enforcement and compliance provisions of
Title 40?
Subpart B_Electronic Reporting to EPA
3.10 What are the requirements for electronic reporting to EPA?
3.20 How will EPA provide notice of changes to the Central Data
Exchange?
Subpart C [Reserved]
Subpart D_Electronic Reporting under EPA-Authorized State, Tribe, and
Local Programs
3.1000 How does a state, tribe, or local government revise or modify its
authorized program to allow electronic reporting?
3.2000 What are the requirements authorized state, tribe, and local
programs' reporting systems must meet?
Appendix 1 to Part 3--Priority Reports
Authority: 7 U.S.C. 136 to 136y; 15 U.S.C. 2601 to 2692; 33 U.S.C.
1251 to 1387; 33 U.S.C. 1401 to 1445; 33 U.S.C. 2701 to 2761; 42 U.S.C.
300f to 300j-26; 42 U.S.C. 4852d; 42 U.S.C. 6901-6992k; 42 U.S.C. 7401
to 7671q; 42 U.S.C. 9601 to 9675; 42 U.S.C. 11001 to 11050; 15 U.S.C.
7001; 44 U.S.C. 3504 to 3506.
Source: 70 FR 59879, Oct. 13, 2005, unless otherwise noted.
Subpart A_General Provisions
Sec. 3.1 Who does this part apply to?
(a) This part applies to:
(1) Persons who submit reports or other documents to EPA to satisfy
requirements under Title 40 of the Code of Federal Regulations (CFR);
and
(2) States, tribes, and local governments administering or seeking
to administer authorized programs under Title 40 of the CFR.
(b) This part does not apply to:
(1) Documents submitted via facsimile in satisfaction of reporting
requirements as permitted under other parts of Title 40 or under
authorized programs; or
(2) Electronic documents submitted via magnetic or optical media
such as diskette, compact disc, digital video disc, or tape in
satisfaction of reporting requirements, as permitted under other parts
of Title 40 or under authorized programs.
(c) This part does not apply to any data transfers between EPA and
states, tribes, or local governments as a part of their authorized
programs or as a part of administrative arrangements between states,
tribes, or local governments and EPA to share data.
Sec. 3.2 How does this part provide for electronic reporting?
(a) Electronic reporting to EPA. Except as provided in Sec. 3.1(b),
any person who is required under Title 40 to create and submit or
otherwise provide a document to EPA may satisfy this requirement with an
electronic document, in lieu of a paper document, provided that:
(1) He or she satisfies the requirements of Sec. 3.10; and
(2) EPA has first published a notice in the Federal Register
announcing that EPA is prepared to receive, in electronic form,
documents required or permitted by the identified part or subpart of
Title 40.
(b) Electronic reporting under an EPA-authorized state, tribe, or
local program.
(1) An authorized program may allow any document submission
requirement under that program to be satisfied with an electronic
document provided that the state, tribe, or local government
[[Page 71]]
seeks and obtains revision or modification of that program in accordance
with Sec. 3.1000 and also meets the requirements of Sec. 3.2000 for
such electronic reporting.
(2) A state, tribe, or local government that is applying for initial
delegation, authorization, or approval to administer a federal program
or a program in lieu of the federal program, and that will allow
document submission requirements under the program to be satisfied with
an electronic document, must use the procedures for obtaining
delegation, authorization, or approval under the relevant part of Title
40 and may not use the procedures set forth in Sec. 3.1000; but the
application must contain the information required by Sec. 3.1000(b)(1)
and the state, tribe, or local government must meet the requirements of
Sec. 3.2000.
(c) Limitations. This part does not require submission of electronic
documents in lieu of paper. This part confers no right or privilege to
submit data electronically and does not obligate EPA, states, tribes, or
local governments to accept electronic documents.
Sec. 3.3 What definitions are applicable to this part?
The definitions set forth in this section apply when used in this
part.
Acknowledgment means a confirmation of electronic document receipt.
Administrator means the Administrator of the EPA.
Agency means the EPA or a state, tribe, or local government that
administers or seeks to administer an authorized program.
Agreement collection certification means a signed statement by which
a local registration authority certifies that a subscriber agreement has
been received from a registrant; the agreement has been stored in a
manner that prevents unauthorized access to these agreements by anyone
other than the local registration authority; and the local registration
authority has no basis to believe that any of the collected agreements
have been tampered with or prematurely destroyed.
Authorized program means a Federal program that EPA has delegated,
authorized, or approved a state, tribe, or local government to
administer, or a program that EPA has delegated, authorized, or approved
a state, tribe or local government to administer in lieu of a Federal
program, under other provisions of Title 40 and such delegation,
authorization, or approval has not been withdrawn or expired.
Central Data Exchange means EPA's centralized electronic document
receiving system, or its successors, including associated instructions
for submitting electronic documents.
Chief Information Officer means the EPA official assigned the
functions described in section 5125 of the Clinger Cohen Act (Pub. L.
104-106).
Copy of record means a true and correct copy of an electronic
document received by an electronic document receiving system, which copy
can be viewed in a human-readable format that clearly and accurately
associates all the information provided in the electronic document with
descriptions or labeling of the information. A copy of record includes:
(1) All electronic signatures contained in or logically associated
with that document;
(2) The date and time of receipt; and
(3) Any other information used to record the meaning of the document
or the circumstances of its receipt.
Disinterested individual means an individual who is not connected
with the person in whose name the electronic signature device is issued.
A disinterested individual is not any of the following: The person's
employer or employer's corporate parent, subsidiary, or affiliate; the
person's contracting agent; member of the person's household; or
relative with whom the person has a personal relationship.
Electronic document means any information in digital form that is
conveyed to an agency or third-party, where ``information'' may include
data, text, sounds, codes, computer programs, software, or databases.
``Data,'' in this context, refers to a delimited set of data elements,
each of which consists of a content or value together with an
understanding of what the content or value means; where the electronic
document includes data, this understanding of what the data element
content or value means must be explicitly
[[Page 72]]
included in the electronic document itself or else be readily available
to the electronic document recipient.
Electronic document receiving system means any set of apparatus,
procedures, software, records, or documentation used to receive
electronic documents.
Electronic signature means any information in digital form that is
included in or logically associated with an electronic document for the
purpose of expressing the same meaning and intention as would a
handwritten signature if affixed to an equivalent paper document with
the same reference to the same content. The electronic document bears or
has on it an electronic signature where it includes or has logically
associated with it such information.
Electronic signature agreement means an agreement signed by an
individual with respect to an electronic signature device that the
individual will use to create his or her electronic signatures requiring
such individual to protect the electronic signature device from
compromise; to promptly report to the agency or agencies relying on the
electronic signatures created any evidence discovered that the device
has been compromised; and to be held as legally bound, obligated, or
responsible by the electronic signatures created as by a handwritten
signature.
Electronic signature device means a code or other mechanism that is
used to create electronic signatures. Where the device is used to create
an individual's electronic signature, then the code or mechanism must be
unique to that individual at the time the signature is created and he or
she must be uniquely entitled to use it. The device is compromised if
the code or mechanism is available for use by any other person.
EPA means the United States Environmental Protection Agency.
Existing electronic document receiving system means an electronic
document receiving system that is being used to receive electronic
documents in lieu of paper to satisfy requirements under an authorized
program on October 13, 2005 or the system, if not in use, has been
substantially developed on or before that date as evidenced by the
establishment of system services or specifications by contract or other
binding agreement.
Federal program means any program administered by EPA under any
other provision of Title 40.
Federal reporting requirement means a requirement to report
information directly to EPA under any other provision of Title 40.
Handwritten signature means the scripted name or legal mark of an
individual, handwritten by that individual with a marking-or writing-
instrument such as a pen or stylus and executed or adopted with the
present intention to authenticate a writing in a permanent form, where
``a writing'' means any intentional recording of words in a visual form,
whether in the form of handwriting, printing, typewriting, or any other
tangible form. The physical instance of the scripted name or mark so
created constitutes the handwritten signature. The scripted name or
legal mark, while conventionally applied to paper, may also be applied
to other media.
Information or objects of independent origin means data or items
that originate from a disinterested individual or are forensic evidence
of a unique, immutable trait which is (and may at any time be)
attributed to the individual in whose name the device is issued.
Local registration authority means an individual who is authorized
by a state, tribe, or local government to issue an agreement collection
certification, whose identity has been established by notarized
affidavit, and who is authorized in writing by a regulated entity to
issue agreement collection certifications on its behalf.
Priority reports means the reports listed in Appendix 1 to part 3.
Subscriber agreement means an electronic signature agreement signed
by an individual with a handwritten signature. This agreement must be
stored until five years after the associated electronic signature device
has been deactivated.
Transmit means to successfully and accurately convey an electronic
document so that it is received by the intended recipient in a format
that can be processed by the electronic document receiving system.
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Valid electronic signature means an electronic signature on an
electronic document that has been created with an electronic signature
device that the identified signatory is uniquely entitled to use for
signing that document, where this device has not been compromised, and
where the signatory is an individual who is authorized to sign the
document by virtue of his or her legal status and/or his or her
relationship to the entity on whose behalf the signature is executed.
Sec. 3.4 How does this part affect enforcement and compliance
provisions of Title 40?
(a) A person is subject to any applicable federal civil, criminal,
or other penalties and remedies for failure to comply with a federal
reporting requirement if the person submits an electronic document to
EPA under this part that fails to comply with the provisions of Sec.
3.10.
(b) A person is subject to any applicable federal civil, criminal,
or other penalties or remedies for failure to comply with a State,
tribe, or local reporting requirement if the person submits an
electronic document to a State, tribe, or local government under an
authorized program and fails to comply with the applicable provisions
for electronic reporting.
(c) Where an electronic document submitted to satisfy a federal or
authorized program reporting requirement bears an electronic signature,
the electronic signature legally binds, obligates, and makes the
signatory responsible, to the same extent as the signatory's handwritten
signature would on a paper document submitted to satisfy the same
federal or authorized program reporting requirement.
(d) Proof that a particular signature device was used to create an
electronic signature will suffice to establish that the individual
uniquely entitled to use the device did so with the intent to sign the
electronic document and give it effect.
(e) Nothing in this part limits the use of electronic documents or
information derived from electronic documents as evidence in enforcement
or other proceedings.
Subpart B_Electronic Reporting to EPA
Sec. 3.10 What are the requirements for electronic reporting to EPA?
(a) A person may use an electronic document to satisfy a federal
reporting requirement or otherwise substitute for a paper document or
submission permitted or required under other provisions of Title 40 only
if:
(1) The person transmits the electronic document to EPA's Central
Data Exchange, or to another EPA electronic document receiving system
that the Administrator may designate for the receipt of specified
submissions, complying with the system's requirements for submission;
and
(2) The electronic document bears all valid electronic signatures
that are required under paragraph (b) of this section.
(b) An electronic document must bear the valid electronic signature
of a signatory if that signatory would be required under Title 40 to
sign the paper document for which the electronic document substitutes,
unless EPA announces special provisions to accept a handwritten
signature on a separate paper submission and the signatory provides that
handwritten signature.
Sec. 3.20 How will EPA provide notice of changes to the Central Data
Exchange?
(a) Except as provided under paragraph (b) of this section, whenever
EPA plans to change Central Data Exchange hardware or software in ways
that would affect the transmission process, EPA will provide notice as
follows:
(1) Significant changes to CDX: Where the equipment, software, or
services needed to transmit electronic documents to the Central Data
Exchange would be changed significantly, EPA will provide public notice
and seek comment on the change and the proposed implementation schedule
through the Federal Register;
(2) Other changes to CDX: EPA will provide notice of other changes
to Central Data Exchange users at least sixty (60) days in advance of
implementation.
(3) De minimis or transparent changes to CDX: For de minimis or
transparent
[[Page 74]]
changes that have minimal or no impact on the transmission process, EPA
may provide notice if appropriate on a case-by-case basis.
(b) Emergency changes to CDX: Any change which EPA's Chief
Information Officer or his or her designee determines is needed to
ensure the security and integrity of the Central Data Exchange is exempt
from the provisions of paragraph (a) of this section. However, to the
extent consistent with ensuring the security and integrity of the
system, EPA will provide notice for any change other than de minimis or
transparent changes to the Central Data Exchange.
Subpart C [Reserved]
Subpart D_Electronic Reporting Under EPA-Authorized State, Tribe, and
Local Programs
Sec. 3.1000 How does a state, tribe, or local government revise or
modify its authorized program to allow electronic reporting?
(a) A state, tribe, or local government that receives or plans to
begin receiving electronic documents in lieu of paper documents to
satisfy requirements under an authorized program must revise or modify
such authorized program to ensure that it meets the requirements of this
part.
(1) General procedures for program modification or revision: To
revise or modify an authorized program to meet the requirements of this
part, a state, tribe, or local government must submit an application
that complies with paragraph (b)(1) of this section and must follow
either the applicable procedures for program revision or modification in
other parts of Title 40, or, at the applicant's option, the procedures
provided in paragraphs (b) through (e) of this section.
(2) Programs planning to receive electronic documents under an
authorized program: A state, tribe, or local government that does not
have an existing electronic document receiving system for an authorized
program must receive EPA approval of revisions or modifications to such
program in compliance with paragraph (a)(1) of this section before the
program may receive electronic documents in lieu of paper documents to
satisfy program requirements.
(3) Programs already receiving electronic documents under an
authorized program: A state, tribe, or local government with an existing
electronic document receiving system for an authorized program must
submit an application to revise or modify such authorized program in
compliance with paragraph (a)(1) of this section no later than October
13, 2007. On a case-by-case basis, this deadline may be extended by the
Administrator, upon request of the state, tribe, or local government,
where the Administrator determines that the state, tribe, or local
government needs additional time to make legislative or regulatory
changes to meet the requirements of this part.
(4) Programs with approved electronic document receiving systems: An
authorized program that has EPA's approval to accept electronic
documents in lieu of paper documents must keep EPA apprised of those
changes to laws, policies, or the electronic document receiving systems
that have the potential to affect program compliance with Sec. 3.2000.
Where the Administrator determines that such changes require EPA review
and approval, EPA may request that the state, tribe, or local government
submit an application for program revision or modification;
additionally, a state, tribe, or local government on its own initiative
may submit an application for program revision or modification
respecting their receipt of electronic documents. Such applications must
comply with paragraph (a)(1) of this section.
(5) Restrictions on the use of procedures in this section: The
procedures provided in paragraphs (b) through (e) of this section may
only be used for revising or modifying an authorized program to provide
for electronic reporting and for subsequent revisions or modifications
to the electronic reporting elements of an authorized program as
provided under paragraph (a)(4) of this section.
(b)(1) To obtain EPA approval of program revisions or modifications
using procedures provided under this section, a state, tribe, or local
government
[[Page 75]]
must submit an application to the Administrator that includes the
following elements:
(i) A certification that the state, tribe, or local government has
sufficient legal authority provided by lawfully enacted or promulgated
statutes or regulations that are in full force and effect on the date of
the certification to implement the electronic reporting component of its
authorized programs covered by the application in conformance with Sec.
3.2000 and to enforce the affected programs using electronic documents
collected under these programs, together with copies of the relevant
statutes and regulations, signed by the State Attorney General or his or
her designee, or, in the case of an authorized tribe or local government
program, by the chief executive or administrative official or officer of
the governmental entity, or his or her designee;
(ii) A listing of all the state, tribe, or local government
electronic document receiving systems to accept the electronic documents
being addressed by the program revisions or modifications that are
covered by the application, together with a description for each such
system that specifies how the system meets the applicable requirements
in Sec. 3.2000 with respect to those electronic documents;
(iii) A schedule of upgrades for the electronic document receiving
systems listed under paragraph (b)(1)(ii) of this section that have the
potential to affect the program's continued conformance with Sec.
3.2000; and
(iv) Other information that the Administrator may request to fully
evaluate the application.
(2) A state, tribe, or local government that revises or modifies
more than one authorized program for receipt of electronic documents in
lieu of paper documents may submit a consolidated application under this
section covering more than one authorized program, provided the
consolidated application complies with paragraph (b)(1) of this section
for each authorized program.
(3)(i) Within 75 calendar days of receiving an application for
program revision or modification submitted under paragraph (b)(1) of
this section, the Administrator will respond with a letter that either
notifies the state, tribe, or local government that the application is
complete or identifies deficiencies in the application that render the
application incomplete. The state, tribe, or local government receiving
a notice of deficiencies may amend the application and resubmit it.
Within 30 calendar days of receiving the amended application, the
Administrator will respond with a letter that either notifies the
applicant that the amended application is complete or identifies
remaining deficiencies that render the application incomplete.
(ii) If a state, tribe, or local government receiving notice of
deficiencies under paragraph (b)(3)(i) of this section does not remedy
the deficiencies and resubmit the subject application within a
reasonable period of time, the Administrator may act on the incomplete
application under paragraph (c) of this section.
(c)(1) The Administrator will act on an application by approving or
denying the state's, tribe's or local government's request for program
revision or modification.
(2) Where a consolidated application submitted under paragraph
(b)(2) of this section addresses revisions or modifications to more than
one authorized program, the Administrator may approve or deny the
request for revision or modification of each authorized program in the
application separately; the Administrator need not take the same action
with respect to the requested revisions or modifications for each such
program.
(3) When an application under paragraph (b) of this section requests
revision or modification of an authorized public water system program
under part 142 of this title, the Administrator will, in accordance with
the procedures in paragraph (f) of this section, provide an opportunity
for a public hearing before a final determination pursuant to paragraph
(c)(1) of this section with respect to that component of the
application.
(4) Except as provided under paragraph (c)(4)(i) and (ii) of this
section, if the Administrator does not take any action under paragraph
(c)(1) of this
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section on a specific request for revision or modification of a specific
authorized program addressed by an application submitted under paragraph
(b) of this section within 180 calendar days of notifying the state,
tribe, or local government under paragraph (b)(3) of this section that
the application is complete, the specific request for program revision
or modification for the specific authorized program is considered
automatically approved by EPA at the end of the 180 calendar days unless
the review period is extended at the request of the state, tribe, or
local government submitting the application.
(i) Where an opportunity for public hearing is required under
paragraph (c)(3) of this section, the Administrator's action on the
requested revision or modification will be in accordance with paragraph
(f) of this section.
(ii) Where a requested revision or modification addressed by an
application submitted under paragraph (b) of this section is to an
authorized program with an existing electronic document receiving
system, and where notification under paragraph (b)(3) of this section
that the application is complete is executed after October 13, 2007, if
the Administrator does not take any action under paragraph (c)(1) of
this section on the specific request for revision or modification within
360 calendar days of such notification, the specific request is
considered automatically approved by EPA at the end of the 360 calendar
days unless the review period is extended at the request of the state,
tribe, or local government submitting the application.
(d) Except where an opportunity for public hearing is required under
paragraph (c)(3) of this section, EPA's approval of a program revision
or modification under this section will be effective upon publication of
a notice of EPA's approval of the program revision or modification in
the Federal Register. EPA will publish such a notice promptly after
approving a program revision or modification under paragraph (c)(1) of
this section or after an EPA approval occurs automatically under
paragraph (c)(4) of this section.
(e) If a state, tribe, or local government submits material to amend
its application under paragraph (b)(1) of this section after the date
that the Administrator sends notification under paragraph (b)(3)(i) of
this section that the application is complete, this new submission will
constitute withdrawal of the pending application and submission of a
new, amended application for program revision or modification under
paragraph (b)(1) of this section, and the 180-day time period in
paragraph (c)(4) of this section or the 360-day time period in paragraph
(c)(4)(ii) of this section will begin again only when the Administrator
makes a new determination and notifies the state, tribe, or local
government under paragraph (b)(3)(i) of this section that the amended
application is complete.
(f) For an application under this section that requests revision or
modification of an authorized public water system program under part 142
of this chapter:
(1) The Administrator will publish notice of the Administrator's
preliminary determination under paragraph (c)(1) of this section in the
Federal Register, stating the reasons for the determination and
informing interested persons that they may request a public hearing on
the Administrator's determination. Frivolous or insubstantial requests
for a hearing may be denied by the Administrator;
(2) Requests for a hearing submitted under this section must be
submitted to the Administrator within 30 days after publication of the
notice of opportunity for hearing in the Federal Register. The
Administrator will give notice in the Federal Register of any hearing to
be held pursuant to a request submitted by an interested person or on
the Administrator's own motion. Notice of hearing will be given not less
than 15 days prior to the time scheduled for the hearing;
(3) The hearing will be conducted by a designated hearing officer in
an informal, orderly, and expeditious manner. The hearing officer will
have authority to take such action as may be necessary to assure the
fair and efficient conduct of the hearing; and
(4) After reviewing the record of the hearing, the Administrator
will issue an order either affirming the determination the Administrator
made
[[Page 77]]
under paragraph (c)(1) of this section or rescinding such determination
and will promptly publish a notice of the order in the Federal Register.
If the order is to approve the program revision or modification, EPA's
approval will be effective upon publication of the notice in the Federal
Register. If no timely request for a hearing is received and the
Administrator does not determine to hold a hearing on the
Administrator's own motion, the Administrator's determination made under
paragraph (c)(1) of this section will be effective 30 days after notice
is published pursuant to paragraph (f)(1) of this section.
Sec. 3.2000 What are the requirements authorized state, tribe, and
local programs' reporting systems must meet?
(a) Authorized programs that receive electronic documents in lieu of
paper to satisfy requirements under such programs must:
(1) Use an acceptable electronic document receiving system as
specified under paragraphs (b) and (c) of this section; and
(2) Require that any electronic document must bear the valid
electronic signature of a signatory if that signatory would be required
under the authorized program to sign the paper document for which the
electronic document substitutes, unless the program has been approved by
EPA to accept a handwritten signature on a separate paper submission.
The paper submission must contain references to the electronic document
sufficient for legal certainty that the signature was executed with the
intention to certify to, attest to, or agree to the content of that
electronic document.
(b) An electronic document receiving system that receives electronic
documents submitted in lieu of paper documents to satisfy requirements
under an authorized program must be able to generate data with respect
to any such electronic document, as needed and in a timely manner,
including a copy of record for the electronic document, sufficient to
prove, in private litigation, civil enforcement proceedings, and
criminal proceedings, that:
(1) The electronic document was not altered without detection during
transmission or at any time after receipt;
(2) Any alterations to the electronic document during transmission
or after receipt are fully documented;
(3) The electronic document was submitted knowingly and not by
accident;
(4) Any individual identified in the electronic document submission
as a submitter or signatory had the opportunity to review the copy of
record in a human-readable format that clearly and accurately associates
all the information provided in the electronic document with
descriptions or labeling of the information and had the opportunity to
repudiate the electronic document based on this review; and
(5) In the case of an electronic document that must bear electronic
signatures of individuals as provided under paragraph (a)(2) of this
section, that:
(i) Each electronic signature was a valid electronic signature at
the time of signing;
(ii) The electronic document cannot be altered without detection at
any time after being signed;
(iii) Each signatory had the opportunity to review in a human-
readable format the content of the electronic document that he or she
was certifying to, attesting to or agreeing to by signing;
(iv) Each signatory had the opportunity, at the time of signing, to
review the content or meaning of the required certification statement,
including any applicable provisions that false certification carries
criminal penalties;
(v) Each signatory has signed either an electronic signature
agreement or a subscriber agreement with respect to the electronic
signature device used to create his or her electronic signature on the
electronic document;
(vi) The electronic document receiving system has automatically
responded to the receipt of the electronic document with an
acknowledgment that identifies the electronic document received,
including the signatory and the date and time of receipt, and is sent to
at least one address that does not share the same access controls as the
account used to make the electronic submission; and
[[Page 78]]
(vii) For each electronic signature device used to create an
electronic signature on the document, the identity of the individual
uniquely entitled to use the device and his or her relation to any
entity for which he or she will sign electronic documents has been
determined with legal certainty by the issuing state, tribe, or local
government. In the case of priority reports identified in the table in
Appendix 1 of Part 3, this determination has been made before the
electronic document is received, by means of:
(A) Identifiers or attributes that are verified (and that may be re-
verified at any time) by attestation of disinterested individuals to be
uniquely true of (or attributable to) the individual in whose name the
application is submitted, based on information or objects of independent
origin, at least one item of which is not subject to change without
governmental action or authorization; or
(B) A method of determining identity no less stringent than would be
permitted under paragraph (b)(5)(vii)(A) of this section; or
(C) Collection of either a subscriber agreement or a certification
from a local registration authority that such an agreement has been
received and securely stored.
(c) An authorized program that receives electronic documents in lieu
of paper documents must ensure that:
(1) A person is subject to any appropriate civil, criminal penalties
or other remedies under state, tribe, or local law for failure to comply
with a reporting requirement if the person fails to comply with the
applicable provisions for electronic reporting.
(2) Where an electronic document submitted to satisfy a state,
tribe, or local reporting requirement bears an electronic signature, the
electronic signature legally binds or obligates the signatory, or makes
the signatory responsible, to the same extent as the signatory's
handwritten signature on a paper document submitted to satisfy the same
reporting requirement.
(3) Proof that a particular electronic signature device was used to
create an electronic signature that is included in or logically
associated with an electronic document submitted to satisfy a state,
tribe, or local reporting requirement will suffice to establish that the
individual uniquely entitled to use the device at the time of signature
did so with the intent to sign the electronic document and give it
effect.
(4) Nothing in the authorized program limits the use of electronic
documents or information derived from electronic documents as evidence
in enforcement proceedings.
Appendix 1 to Part 3--Priority Reports
------------------------------------------------------------------------
Category Description 40 CFR Citation
------------------------------------------------------------------------
Required Reports
------------------------------------------------------------------------
State Implementation Plan..... Emissions data reports 51.60(c).
for mobile sources.
Excess Emissions and Excess emissions and 60.7(c),
Monitoring Performance Report monitoring 60.7(d).
Compliance Notification performance report
Report. detailing the
magnitude of excess
emissions, and
provides the date,
time, and system
status at the time of
the excess emission.
New Source Performance Semi-annual reports 60.49a(e) & (j)
Standards Reporting (quarterly, if report & (v),
Requirements. is approved for 60.49b(v).
electronic submission
by the permitting
authority) on sulfur
dioxide, nitrous
oxides and
particulate matter
emission (includes
reporting
requirements in
Subparts A through
DDDD).
Semi-annual Operations and Semi-annual report 60.107(c),
Corrective Action Reports. provides information 60.107(d).
on a company's
exceedance of its
sulfur dioxide
emission rate, sulfur
content of the fresh
feed, and the average
percent reduction and
average concentration
of sulfur dioxide.
When emissions data
is unavailable, a
signed statement is
required which
documents the
changes, if any, made
to the emissions
control system that
would impact the
company's compliance
with emission limits.
[[Page 79]]
National Emission Standards Include such reports 61.11,
for Hazardous Air Pollutants as: Annual 61.24(a)(3) &
Reporting Requirements. compliance, (a)(8),
calculation, initial 61.70(c)(1) &
startup, compliance (c)(2)(v) &
status, (c)(3) &
certifications of (c)(4)(iv),
compliance, waivers 61.94(a) &
from compliance (b)(9),
certifications, 61.104(a) &
quarterly inspection (a)(1)(x) &
certifications, (a)(1)(xi) &
operations, and (a)(1)(xvi),
operations and 61.138(e) &
process change. (f),
61.165(d)(2) &
(d)(3) & (d)(4)
& (f)(1) &
(f)(2) &(f)(3),
61.177(a)(2) &
(c)(1) & (c)(2)
& (c)(3) &
(e)(1) &
(e)(3),
61.186(b)(1) &
(b)(2) & (b)(3)
& (c)(1) &
(f)(1),
61.247(a)(1) &
(a)(4) &
(a)(5)(v) &
(b)(5) & (d),
61.254(a)(4),
61.275(a) & (b)
& (c),
61.305(f) &
(i), 61.357(a)
& (b) & (c) &
(d), 63.9(h).
Hazardous Air Pollutants Reports containing 63.10(d),
Compliance Report. results from 63.10(e)(1),
performance test, 63.10(e)(3).
opacity tests, and
visible emissions
tests. Progress
reports; periodic and
immediate startup,
shutdown, and
malfunction reports;
results from
continuous monitoring
system performance
evaluations; excess
emissions and
continuous monitoring
system performance
report; or summary
report.
Notifications and Reports..... Reports that document 65.5(d),
a facility's initial 65.5(e).
compliance status,
notification of
initial start-up, and
periodic reports
which includes the
startup, shutdown,
and malfunction
reports discussed in
40 CFR 65.6(c).
Continuous Emissions Quarterly emissions 75.64, 75.65.
Monitoring. monitoring reports
and opacity reports
which document a
facility's excess
emission.
Notice of Fuel or Fuel Registration of new 79.10, 79.11,
Additive Registration and fuels and additives, 79.20, 79.21,
Health Effects Testing. and the submission 79.51.
and certification of
health effect data.
Manufacture In-Use and Product Reports that document 86.1845,
Line Emissions Testing. the emissions testing 86.1846,
results generated 86.1847,
from the in-use 90.113,
testing program for 90.1205,
new and in-use 90.704, 91.805,
highway vehicle 91.504, 92.607,
ignition engines; non- 92.508, 92.509.
road spark-ignition
engines; marine spark-
ignition engines; and
locomotives and
locomotive engines.
Industrial and Publicly Owned Discharge monitoring 122.41(l)(4)(i),
Treatment Works Reports. reports for all 403.12(b) & (d)
individual & (e) & (h).
permittees--including
baseline reports,
pretreatment
standards report,
periodic compliance
reports, and reports
made by significant
industrial users.
------------------------------------------------------------------------
Event Driven Notices
------------------------------------------------------------------------
State Implementation Plan..... Owners report 51.211.
emissions data from
stationary sources.
Report For Initial Performance Report that provides 60.2200 (initial
Test. the initial performance
performance test tests).
results, site-
specific operating
limits, and, if
installed,
information on the
bag leak detection
device used by the
facility.
Emissions Control Report...... Report submitted by 61.153(a)(1),
new sources within 90 61.153(a)(4)(i)
days of set-up which ,
describes emission 61.153(a)(5)(ii
control equipment ).
used, processes which
generate asbestos-
containing waste
material, and
disposal information.
State Operating Permits-- Monitoring and 70.6(a)(3)(iii)(
Permit Content. deviation reports A),
under the State 70.6(a)(3)(iii)
Operating Permit. (B).
Title V Permits--Permit Monitoring and 71.6(a)(3)(iii).
Content. deviation reports
under the Federal
Operating Permit.
Annual Export Report.......... Annual report 262.56(a).
summarizing the
amount and type of
hazardous waste
exported.
Exceptions Reports............ Reports submitted by a 262.42, 262.55.
generator when the
generator has not
received confirmation
from the Treatment,
Storage, and Disposal
Facility (TSDF) that
it received the
generator's waste and
when hazardous waste
shipment was received
by the TSDF. For
exports, reports
submitted when the
generator has not
received a copy of
the manifest from the
transporter with
departure date and
place of export
indicated; and
confirmation from the
consignee that the
hazardous waste was
received or when the
hazardous waste is
returned to the U.S.
Contingency Plan Follow-up reports made 264.56(j),
Implementation Reports. to the Agency for all 265.56(j).
incidents noted in
the operating record
which required the
implementation of a
facility's
contingency plan.
[[Page 80]]
Significant Manifest Report filed by 264.72(b),
Discrepancy Report. Treatment, Storage, 265.72(b).
and Disposal
Facilities (TSDF)
within 15 days of
receiving wastes,
when the TSDF is
unable to resolve
manifest
discrepancies with
the generator.
Unmanifested Waste Report..... Report that documents 264.76, 265.76.
hazardous waste
received by a
Treatment, Storage,
and Disposal Facility
without an
accompanying manifest.
Noncompliance Report.......... An owner/operator 264.1090.
submitted report
which documents
hazardous waste that
was placed in
hazardous waste
management units in
noncompliance with 40
CFR sections
264.1082(c)(1) and
(c)(2); 264.1084(b);
264.1035(c)(4); or
264.1033(d).
Notification--Low Level Mixed One-time notification 266.345.
Waste. concerning
transportation and
disposal of
conditionally
exempted waste.
Notification--Land Disposal One-time notification 268.9(d).
Restrictions. and certification
that characteristic
waste is no longer
hazardous.
Underground Storage Tank Underground Storage 280.22.
Notification. Tank system
notifications
concerning design,
construction, and
installation. As well
as when systems are
being placed in
operation. (EPA Form
7530-1 or state
version.).
Free Product Removal Report Report written and 280.64, 280.65.
and Subsequent Investigation submitted within 45
Report. days after confirming
a free product
release, including
information on the
release and recovery
methods used for the
free product, and
when test indicate
presence of free
product, response
measures.
Manufacture or Import Premanufacture 720.102, 721.25.
Premanufacture Notification. notification of
intent to begin
manufacturing,
importing, or
processing chemicals
identified in Subpart
E for significant new
use (forms 7710-56
and 7710-25).
------------------------------------------------------------------------
Permit Applications \1\
------------------------------------------------------------------------
State Implementation Plan..... Information describing 52.21(n).
the source, its
construction
schedule, and the
planned continuous
emissions reductions
system.
State Operating Permits....... Reports, notices, or 70.6(c)(1).
other written
submissions required
by a State Operating
Permit.
Title V Permits--Permit Reports, notices, or 71.6(c)(1),
Content. other written 71.25(c)(1).
submissions required
by a Title V
Operating Permit.
Title V Permits............... Specific criteria for 71.7(e(2)(ii)(c)
permit modifications .
and or revisions,
including a
certification
statement by a
responsible official.
Reclaimer Certification....... Certification made by 82.164.
a reclaimer that the
refrigerant was
reprocessed according
to specifications and
that no more than
1.5% of the
refrigerant was
released during the
reclamation.
Application for Certification Control of Emissions 86.007-21 (heavy
and Statement of Compliance. for New and In-Use duty), 1844-01
Highway Vehicles and (light duty).
Engines statement of
compliance made by
manufacturer,
attesting that the
engine family
complies with
standards for new and
in-use highway
vehicles and engines.
Application for Certification. Application made by 89.115, 90.107,
engine manufacturer 91.107, 92.203,
to obtain certificate 94.203.
of conformity.
National Pollutant Discharge National Pollutant 122.21.
Elimination System. Discharge Elimination
System (NPDES)
Permits and Renewals
(includes individual
permit applications,
NPDES General Form 1,
and NPDES Forms 2A-F,
and 2S).
Resource Conservation and Signatures for permit 270.11, 270.42.
Recovery Act Permit applications and
Applications and reports; submission
Modifications. of permit
modifications. (This
category excludes
Class I permit
modifications (40 CFR
270.42, Appendix I)
that do not require
prior approval).
------------------------------------------------------------------------
Certifications of Compliance/Non-Applicability
------------------------------------------------------------------------
State Implementation Plan State implementation 51.212(c),
Requirements. plan certifications 51.214(e).
for testing,
inspection,
enforcement, and
continuous emissions
monitoring.
Certification Statement....... Chemical Accident 68.185.
Prevention
Provisions--Risk
Management Plan
certification
statements.
Title V Permits............... Federal compliance 70.5(c)(9),
certifications and 70.5(d),
permit applications. 70.6(c)(5).
State Operating Permits....... State compliance 71.5(c)(9),
certifications and 71.5(d),
permit applications. 71.24(f).
Annual and Other Compliance Annual compliance 72.90.
Certification Reports. certification report
and is submitted by
units subject to acid
rain emissions
limitations.
Annual Compliance Annual compliance 74.43.
Certification Report, Opt-In certification report
Report, and Confirmation which is submitted in
Report. lieu of annual
compliance
certification report
listed in Subpart I
of Part 72.
Quarterly Reports and Continuous Emission 75.73.
Compliance Certifications. Monitoring
certifications,
monitoring plans, and
quarterly reports for
NOX emissions.
[[Page 81]]
Certification Letters Recovery Protection of 79.4, 80.161,
and Recycling Equipment, Stratospheric Ozone: 82.162, 82.42.
Motor Vehicle Air Recycling & Emissions
Conditioners Recycling Reduction.
Program, Detergent Package. Acquisition of
equipment for
recovery or recycling
made by auto repair
service technician
and Fuels and Fuel
Additives Detergent
additive
certification.
Response Plan Cover Sheet..... Oil Pollution 112 (Appendix
Prevention f).
certification to the
truth and accuracy of
information.
Closure Report................ Report which documents 146.71.
that closure was in
accordance with
closure plan and/or
details difference
between actual
closure and the
procedures outlined
in the closure plan.
Certification of Closure and Certification that 264.115,
Post Closure Care, Post- Treatment, Storage, 264.119,
Closure Notices. and Disposal 264.119(b)(2),
Facilities (TSDF) are 264.120,
closed in accordance 265.115,
with approved closure 265.119(b)(2),
plan or post-closure 265.120,
plan. 265.19.
Certification of Testing Lab Certification that the 270.63.
Analysis. testing and/or lab
analyses required for
the treatment
demonstration phase
of a two-phase permit
was conducted.
Periodic Certification........ Certification that 437.41(b).
facility is operating
its system to provide
equivalent treatment
as in initial
certification.
------------------------------------------------------------------------
\1\ Included within each permit application category, though sometimes
not listed, are the permits submitted to run/operate/maintain
facilities and/or equipment/products under EPA or authorized programs.
PART 4_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR
FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents
Authority: Section 213, Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, as amended by the Surface
Transportation and Uniform Relocation Assistance Act of 1987, Title IV
of Pub. L. 100-17, 101 Stat. 246-256 (42 U.S.C. 4601 note).
Sec. 4.1 Uniform relocation assistance and real property acquisition.
Effective April 2, 1989, regulations and procedures for complying
with the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (Pub. L. 91-646, 84 Stat. 1894, 42 U.S.C. 4601), as
amended by the Surface Transportation and Uniform Relocation Assistance
Act of 1987 (Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are
set forth in 49 CFR part 24.
[52 FR 48023, Dec. 17, 1987 and 54 FR 8912, Mar. 2, 1989]
PART 5_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_Introduction
Sec.
5.100 Purpose and effective date.
5.105 Definitions.
5.110 Remedial and affirmative action and self-evaluation.
5.115 Assurance required.
5.120 Transfers of property.
5.125 Effect of other requirements.
5.130 Effect of employment opportunities.
5.135 Designation of responsible employee and adoption of grievance
procedures.
5.140 Dissemination of policy.
Subpart B_Coverage
5.200 Application.
5.205 Educational institutions and other entities controlled by
religious organizations.
5.210 Military and merchant marine educational institutions.
5.215 Membership practices of certain organizations.
5.220 Admissions.
5.225 Educational institutions eligible to submit transition plans.
5.230 Transition plans.
5.235 Statutory amendments.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
5.300 Admission.
5.305 Preference in admission.
[[Page 82]]
5.310 Recruitment.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
5.400 Education programs or activities.
5.405 Housing.
5.410 Comparable facilities.
5.415 Access to course offerings.
5.420 Access to schools operated by LEAs.
5.425 Counseling and use of appraisal and counseling materials.
5.430 Financial assistance.
5.435 Employment assistance to students.
5.440 Health and insurance benefits and services.
5.445 Marital or parental status.
5.450 Athletics.
5.455 Textbooks and curricular material.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
5.500 Employment.
5.505 Employment criteria.
5.510 Recruitment.
5.515 Compensation.
5.520 Job classification and structure.
5.525 Fringe benefits.
5.530 Marital or parental status.
5.535 Effect of state or local law or other requirements.
5.540 Advertising.
5.545 Pre-employment inquiries.
5.550 Sex as a bona fide occupational qualification.
Subpart F_Procedures
5.600 Notice of covered programs.
5.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52890, Aug. 30, 2000, unless otherwise noted.
Subpart A_Introduction
Sec. 5.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 5.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means the Director, Office of Civil
Rights.
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein,
[[Page 83]]
including surplus property, and the proceeds of the sale or transfer of
such property, if the Federal share of the fair market value of the
property is not, upon such sale or transfer, properly accounted for to
the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that offers a program
of academic study that leads to a first professional degree in a field
for which there is a national specialized accrediting agency recognized
by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or
trade, or to pursue study in a technical field, whether or not the
school or institution offers certificates, diplomas, or degrees and
whether or not it offers full-time study.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or
through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Sec. Sec.
5.100 through 5.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
[[Page 84]]
admits students of both sexes without discrimination.
[65 FR 52865, 52890, Aug. 30, 2000]
Sec. 5.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 5.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official if the applicant or
recipient to whom such assurance applies fails to commit itself to take
whatever remedial action is necessary in accordance with Sec. 5.110(a)
to eliminate existing discrimination on the basis of sex or to eliminate
the effects of past discrimination whether occurring prior to or
subsequent to the submission to the designated agency official of such
assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
[[Page 85]]
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 5.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Sec. Sec. 5.205 through 5.235(a).
Sec. 5.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that would render any applicant or
student ineligible to participate or limit the eligibility or
participation of any applicant or student, on the basis of sex, in any
education program or activity operated by a recipient and that receives
Federal financial assistance.
Sec. 5.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
Sec. 5.135 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations. The recipient shall notify all its students and employees
of the name, office address, and telephone number of the employee or
employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by these Title IX regulations.
Sec. 5.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and
[[Page 86]]
continuing steps to notify applicants for admission and employment,
students and parents of elementary and secondary school students,
employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Sec. Sec. 5.300 through 5.310 do not apply to the recipient, and
that inquiries concerning the application of Title IX and these Title IX
regulations to such recipient may be referred to the employee designated
pursuant to Sec. 5.135, or to the designated agency official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of September 29, 2000 or
of the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
Subpart B_Coverage
Sec. 5.200 Application.
Except as provided in Sec. Sec. 5.205 through 5.235(a), these Title
IX regulations apply to every recipient and to each education program or
activity operated by such recipient that receives Federal financial
assistance.
Sec. 5.205 Educational institutions and other entities controlled by
religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Sec. 5.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training
[[Page 87]]
of individuals for a military service of the United States or for the
merchant marine.
Sec. 5.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 5.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 5.225 and 5.230, and Sec. Sec. 5.300 through 5.310,
each administratively separate unit shall be deemed to be an educational
institution.
(c) Application of Sec. Sec. 5.300 through .310. Except as provided
in paragraphs (d) and (e) of this section, Sec. Sec. 5.300 through
5.310 apply to each recipient. A recipient to which Sec. Sec. 5.300
through 5.310 apply shall not discriminate on the basis of sex in
admission or recruitment in violation of Sec. Sec. 5.300 through 5.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Sec. Sec. 5.300 through 5.310 apply only to institutions of vocational
education, professional education, graduate higher education, and public
institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Sec. Sec. 5.300 through 5.310 do not apply to any public institution of
undergraduate higher education that traditionally and continually from
its establishment has had a policy of admitting students of only one
sex.
Sec. 5.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational
institution to which Sec. Sec. 5.300 through 5.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only one sex as regular students as of June
23, 1965, but thereafter admitted, as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Sec. Sec. 5.300 through 5.310.
Sec. 5.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 5.225 applies
and that is composed of more than one administratively separate unit may
submit either a single transition plan applicable to all such units, or
a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the
name, address, and telephone number of the person to whom questions
concerning the plan may be addressed. The person who submits the plan
shall be the chief administrator or president of the institution, or
another individual legally authorized to bind the institution to all
actions set forth in the plan.
(2) State whether the educational institution or administratively
separate
[[Page 88]]
unit admits students of both sexes as regular students and, if so, when
it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 5.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Sec. Sec. 5.300 through
5.310 unless such treatment is necessitated by an obstacle identified in
paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 5.225 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 5.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
[[Page 89]]
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a ``program or activity'' subject to
these Title IX regulations if the college, university, or other
institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or has received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 5.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which Sec. Sec. 5.300 through Sec. Sec. 5.310 apply,
except as provided in Sec. Sec. 5.225 and 5.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Sec. Sec. 5.300 through 5.310 apply
shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the basis of sex unless the use of such test or criterion is
shown to predict validly success in the education program or activity in
question and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Sec. Sec. 5.300 through 5.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
[[Page 90]]
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 5.235(d), shall treat disabilities related to
pregnancy, childbirth, termination of pregnancy, or recovery therefrom
in the same manner and under the same policies as any other temporary
disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 5.305 Preference in admission.
A recipient to which Sec. Sec. 5.300 through 5.310 apply shall not
give preference to applicants for admission, on the basis of attendance
at any educational institution or other school or entity that admits as
students only or predominantly members of one sex, if the giving of such
preference has the effect of discriminating on the basis of sex in
violation of Sec. Sec. 5.300 through 5.310.
Sec. 5.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.
5.300 through 5.310 apply shall not discriminate on the basis of sex in
the recruitment and admission of students. A recipient may be required
to undertake additional recruitment efforts for one sex as remedial
action pursuant to Sec. 5.110(a), and may choose to undertake such
efforts as affirmative action pursuant to Sec. 5.110(b).
(b) Recruitment at certain institutions. A recipient to which
Sec. Sec. 5.300 through 5.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Sec. Sec. 5.300 through 5.310.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 5.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that receives Federal financial assistance. Sections
5.400 through 5.455 do not apply to actions of a recipient in connection
with admission of its students to an education program or activity of a
recipient to which Sec. Sec. 5.300 through 5.310 do not apply, or an
entity, not a recipient, to which Sec. Sec. 5.300 through 5.310 would
not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Sec. Sec. 5.400
through 5.455, in providing any aid, benefit, or service to a student, a
recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing any aid, benefit, or
service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a
[[Page 91]]
foreign institution. A recipient educational institution may administer
or assist in the administration of scholarships, fellowships, or other
awards established by foreign or domestic wills, trusts, or similar
legal instruments, or by acts of foreign governments and restricted to
members of one sex, that are designed to provide opportunities to study
abroad, and that are awarded to students who are already matriculating
at or who are graduates of the recipient institution; Provided, that a
recipient educational institution that administers or assists in the
administration of such scholarships, fellowships, or other awards that
are restricted to members of one sex provides, or otherwise makes
available, reasonable opportunities for similar studies for members of
the other sex. Such opportunities may be derived from either domestic or
foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that facilitates, permits, or
considers such participation as part of or equivalent to an education
program or activity operated by such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 5.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
Sec. 5.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 5.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of sex,
or require or refuse participation therein by any of its students on
such basis, including health, physical education, industrial, business,
vocational, technical, home economics, music, and adult education
courses.
[[Page 92]]
(b)(1) With respect to classes and activities in physical education
at the elementary school level, the recipient shall comply fully with
this section as expeditiously as possible but in no event later than one
year from September 29, 2000. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 5.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
Sec. 5.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 5.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a
recipient shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other
[[Page 93]]
services, assist any foundation, trust, agency, organization, or person
that provides assistance to any of such recipient's students in a manner
that discriminates on the basis of sex; or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 5.450.
Sec. 5.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates Sec. Sec.
5.500 through 5.550.
Sec. 5.440 Health and insurance benefits and services.
Subject to Sec. 5.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Sec. Sec. 5.500 through 5.550 if it were provided to employees
of the recipient. This section shall not prohibit a recipient from
providing any benefit or service that may be used by a different
proportion of students of one sex than of the other, including family
planning services. However, any recipient that provides full coverage
health service shall provide gynecological care.
Sec. 5.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy,
[[Page 94]]
or recovery therefrom, unless the student requests voluntarily to
participate in a separate portion of the program or activity of the
recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 5.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 5.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try out for the team offered unless the sport involved is a contact
sport. For the purposes of these Title IX regulations, contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and
other sports the purpose or major activity of which involves bodily
contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but
[[Page 95]]
the designated agency official may consider the failure to provide
necessary funds for teams for one sex in assessing equality of
opportunity for members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from
September 29, 2000. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
secondary or postsecondary school level shall comply fully with this
section as expeditiously as possible but in no event later than three
years from September 29, 2000.
Sec. 5.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 5.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Sec. Sec. 5.500
through 5.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Sec. Sec. 5.500 through 5.550
apply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 5.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for
[[Page 96]]
any employment opportunity that has a disproportionately adverse effect
on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 5.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Sec. Sec. 5.500 through 5.550.
Sec. 5.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 5.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. 5.550.
Sec. 5.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, fringe benefits means: Any medical, hospital, accident,
life insurance, or retirement benefit, service, policy or plan, any
profit-sharing or bonus plan, leave, and any other benefit or service of
employment not subject to the provision of Sec. 5.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 5.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment that treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant
[[Page 97]]
for employment on the basis of pregnancy, childbirth, false pregnancy,
termination of pregnancy, or recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec. 5.235(d),
a recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy, recovery therefrom, and any temporary
disability resulting therefrom as any other temporary disability for all
job-related purposes, including commencement, duration, and extensions
of leave, payment of disability income, accrual of seniority and any
other benefit or service, and reinstatement, and under any fringe
benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 5.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Sec. Sec. 5.500 through 5.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 5.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
Sec. 5.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 5.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Sec. Sec. 5.500
through 5.550 provided it is shown that sex is a bona fide occupational
qualification for that action, such that consideration of sex with
regard to such action is essential to successful operation of the
employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet facility used only by
members of one sex.
Subpart F_Procedures
Sec. 5.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
[[Page 98]]
Sec. 5.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 40 CFR 7.105 through 7.135.
[65 FR 52890, Aug. 30, 2000]
PART 6_PROCEDURES FOR IMPLEMENTING THE REQUIREMENTS OF THE COUNCIL ON
ENVIRONMENTAL QUALITY ON THE NATIONAL ENVIRONMENTAL POLICY ACT--Table
of Contents
Subpart A_General
Sec.
6.100 Purpose and policy.
6.101 Definitions.
6.102 Applicability.
6.103 Responsibilities.
6.104 Early involvement of private parties.
6.105 Synopsis of environmental review procedures.
6.106 Deviations.
6.107 Categorical exclusions.
6.108 Criteria for initiating an EIS.
Subpart B_Content of EISs
6.200 The environmental impact statement.
6.201 Format.
6.202 Executive summary.
6.203 Body of EISs.
6.204 Incorporation by reference.
6.205 List of preparers.
Subpart C_Coordination With Other Environmental Review and Consultation
Requirements
6.300 General.
6.301 Landmarks, historical, and archeological sites.
6.302 Wetlands, floodplains, important farmlands, coastal zones, wild
and scenic rivers, fish and wildlife, and endangered species.
6.303 Air quality.
Subpart D_Public and Other Federal Agency Involvement
6.400 Public involvement.
6.401 Official filing requirements.
6.402 Availability of documents.
6.403 The commenting process.
6.404 Supplements.
Subpart E_Environmental Review Procedures for Wastewater Treatment
Construction Grants Program
6.500 Purpose.
6.501 Definitions.
6.502 Applicability and limitations.
6.503 Overview of the environmental review process.
6.504 Consultation during the facilities planning process.
6.505 Categorical exclusions.
6.506 Environmental review process.
6.507 Partitioning the environmental review process.
6.508 Findings of No Significant Impact (FNSI) determination.
6.509 Criteria for initiating Environmental Impact Statements (EIS).
6.510 Environmental Impact Statement (EIS) preparation.
6.511 Record of Decision (ROD) for EISs and identification of mitigation
measures.
6.512 Monitoring for compliance.
6.513 Public participation.
6.514 Delegation to States.
Subpart F_Environmental Review Procedures for the New Source NPDES
Program
6.600 Purpose.
6.601 Definitions.
6.602 Applicability.
6.603 Limitations on actions during environmental review process.
6.604 Environmental review process.
6.605 Criteria for preparing EISs.
6.606 Record of decision.
6.607 Monitoring.
Subpart G_Environmental Review Procedures for Office of Research and
Development Projects
6.700 Purpose.
6.701 Definition.
6.702 Applicability.
6.703 General.
6.704 Categorical exclusions.
6.705 Environmental assessment and finding of no significant impact.
6.706 Environmental impact statement.
Subpart H_Environmental Review Procedures for Solid Waste Demonstration
Projects
6.800 Purpose.
6.801 Applicability.
6.802 Criteria for preparing EISs.
6.803 Environmental review process.
[[Page 99]]
6.804 Record of decision.
Subpart I_Environmental Review Procedures for EPA Facility Support
Activities
6.900 Purpose.
6.901 Definitions.
6.902 Applicability.
6.903 Criteria for preparing EISs.
6.904 Environmental review process.
6.905 Record of decision.
Subpart J_Assessing the Environmental Effects Abroad of EPA Actions
6.1001 Purpose and policy.
6.1002 Applicability.
6.1003 Definitions.
6.1004 Environmental review and assessment requirements.
6.1005 Lead or cooperating agency.
6.1006 Exemptions and considerations.
6.1007 Implementation.
Appendix A to Part 6--Statement of Procedures on Floodplain Management
and Wetlands Protection
Authority: 42 U.S.C. 4321 et seq., 7401-7671q; 40 CFR part 1500.
Source: 44 FR 64177, Nov. 6, 1979, unless otherwise noted.
Subpart A_General
Sec. 6.100 Purpose and policy.
(a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321 et seq., as implemented by Executive Orders 11514 and 11991 and the
Council on Environmental Quality (CEQ) Regulations of November 29, 1978
(43 FR 55978) requires that Federal agencies include in their decision-
making processes appropriate and careful consideration of all
environmental effects of proposed actions, analyze potential
environmental effects of proposed actions and their alternatives for
public understanding and scrutiny, avoid or minimize adverse effects of
proposed actions, and restore and enhance environmental quality as much
as possible. The Environmental Protection Agency (EPA) shall integrate
these NEPA factors as early in the Agency planning processes as
possible. The environmental review process shall be the focal point to
assure NEPA considerations are taken into account. To the extent
applicable, EPA shall prepare environmental impact statements (EISs) on
those major actions determined to have significant impact on the quality
of the human environment. This part takes into account the EIS
exemptions set forth under section 511(c)(1) of the Clean Water Act
(Pub. L. 92-500) and section 7(c)(1) of the Energy Supply and
Environmental Coordination Act of 1974 (Pub. L. 93-319).
(b) This part establishes EPA policy and procedures for the
identification and analysis of the environmental impacts of EPA-related
activities and the preparation and processing of EISs.
Sec. 6.101 Definitions.
(a) Terminology. All terminology used in this part will be
consistent with the terms as defined in 40 CFR part 1508 (the CEQ
Regulations). Any qualifications will be provided in the definitions set
forth in each subpart of this regulation.
(b) The term CEQ Regulations means the regulations issued by the
Council on Environmental Quality on November 29, 1978 (see 43 FR 55978),
which implement Executive Order 11991. The CEQ Regulations will often be
referred to throughout this regulation by reference to 40 CFR part 1500
et al.
(c) The term environmental review means the process whereby an
evaluation is undertaken by EPA to determine whether a proposed Agency
action may have a significant impact on the environment and therefore
require the preparation of the EIS.
(d) The term environmental information document means any written
analysis prepared by an applicant, grantee or contractor describing the
environmental impacts of a proposed action. This document will be of
sufficient scope to enable the responsible official to prepare an
environmental assessment as described in the remaining subparts of this
regulation.
(e) The term grant as used in this part means an award of funds or
other assistance by a written grant agreement or cooperative agreement
under 40 CFR chapter I, subpart B.
Sec. 6.102 Applicability.
(a) Administrative actions covered. This part applies to the
activities of EPA in
[[Page 100]]
accordance with the outline of the subparts set forth below. Each
subpart describes the detailed environmental review procedures required
for each action.
(1) Subpart A sets forth an overview of the regulation. Section
6.102(b) describes the requirements for EPA legislative proposals.
(2) Subpart B describes the requirements for the content of an EIS
prepared pursuant to subparts E, F, G, H, and I.
(3) Subpart C describes the requirements for coordination of all
environmental laws during the environmental review undertaken pursuant
to subparts E, F, G, H, and I.
(4) Subpart D describes the public information requirements which
must be undertaken in conjunction with the environmental review
requirements under subparts E, F, G, H, and I.
(5) Subpart E describes the environmental review requirements for
the wastewater treatment construction grants program under Title II of
the Clean Water Act.
(6) Subpart F describes the environmental review requirements for
new source National Pollutant Discharge Elimination System (NPDES)
permits under section 402 of the Clean Water Act.
(7) Subpart G describes the environmental review requirements for
research and development programs undertaken by the Agency.
(8) Subpart H describes the environmental review requirements for
solid waste demonstration projects undertaken by the Agency.
(9) Subpart I describes the environmental review requirements for
construction of special purpose facilities and facility renovations by
the Agency.
(b) Legislative proposals. As required by the CEQ Regulations,
legislative EISs are required for any legislative proposal developed by
EPA which significantly affects the quality of the human environment. A
preliminary draft EIS shall be prepared by the responsible EPA office
concurrently with the development of the legislative proposal and
contain information required under subpart B. The EIS shall be processed
in accordance with the requirements set forth under 40 CFR 1506.8.
(c) Application to ongoing activities--(1) General. The effective
date for these regulations is December 5, 1979. These regulations do not
apply to an EIS or supplement to that EIS if the draft EIS was filed
with the Office of External Affairs, (OEA) before July 30, 1979. No
completed environmental documents need be redone by reason of these
regulations.
(2) With regard to activities under subpart E, these regulations
shall apply to all EPA environmental review procedures effective
December 15, 1979. However, for facility plans begun before December 15,
1979, the responsible official shall impose no new requirements on the
grantee. Such grantees shall comply with requirements applicable before
the effective date of this regulation. Notwithstanding the above, this
regulation shall apply to any facility plan submitted to EPA after
September 30, 1980.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]
Sec. 6.103 Responsibilities.
(a) General responsibilities. (1) The responsible official's duties
include:
(i) Requiring applicants, contractors, and grantees to submit
environmental information documents and related documents and assuring
that environmental reviews are conducted on proposed EPA projects at the
earliest possible point in EPA's decision-making process. In this
regard, the responsible official shall assure the early involvement and
availability of information for private applicants and other non-Federal
entities requiring EPA approvals.
(ii) When required, assuring that adequate draft EISs are prepared
and distributed at the earliest possible point in EPA's decision-making
process, their internal and external review is coordinated, and final
EISs are prepared and distributed.
(iii) When an EIS is not prepared, assuring documentation of the
decision to grant a categorical exclusion, or assuring that findings of
no significant impact (FNSIs) and environmental assessments are prepared
and distributed for those actions requiring them.
[[Page 101]]
(iv) Consulting with appropriate officials responsible for other
environmental laws set forth in subpart C.
(v) Consulting with the Office of External Affairs (OEA) on actions
involving unresolved conflicts concerning this part or other Federal
agencies.
(vi) When required, assuring that public participation requirements
are met.
(2) Office of External Affairs duties include: (i) Supporting the
Administrator in providing EPA policy guidance and assuring that EPA
offices establish and maintain adequate administrative procedures to
comply with this part.
(ii) Monitoring the overall timeliness and quality of the EPA effort
to comply with this part.
(iii) Providing assistance to responsible officials as required,
i.e., preparing guidelines describing the scope of environmental
information required by private applicants relating to their proposed
actions.
(iv) Coordinating the training of personnel involved in the review
and preparation of EISs and other associated documents.
(v) Acting as EPA liaison with the Council on Environmental Quality
and other Federal and State entities on matters of EPA policy and
administrative mechanisms to facilitate external review of EISs, to
determine lead agency and to improve the uniformity of the NEPA
procedures of Federal agencies.
(vi) Advising the Administrator and Deputy Administrator on projects
which involve more than one EPA office, are highly controversial, are
nationally significant, or pioneer EPA policy, when these projects have
had or should have an EIS prepared on them.
(vii) Carrying out administrative duties relating to maintaining
status of EISs within EPA, i.e., publication of notices of intent in the
Federal Register and making available to the public status reports on
EISs and other elements of the environmental review process.
(3) Office of an Assistant Administrator duties include: (i)
Providing specific policy guidance to their respective offices and
assuring that those offices establish and maintain adequate
administrative procedures to comply with this part.
(ii) Monitoring the overall timeliness and quality of their
respective office's efforts to comply with this part.
(iii) Acting as liaison between their offices and the OEA and
between their offices and other Assistant Administrators or Regional
Administrators on matters of agencywide policy and procedures.
(iv) Advising the Administrator and Deputy Administrator through the
OEA on projects or activities within their respective areas of
responsibilities which involve more than one EPA office, are highly
controversial, are nationally significant, or pioneer EPA policy, when
these projects will have or should have an EIS prepared on them.
(v) Pursuant to Sec. 6.102(b) of this subpart, preparing
legislative EISs as appropriate on EPA legislative initiatives.
(4) The Office of Policy, Planning, and Evaluation duties include:
responsibilities for coordinating the preparation of EISs required on
EPA legislative proposals in accordance with Sec. 6.102(b).
(b) Responsibilities for subpart E--(1) Responsible official. The
responsible official for EPA actions covered by this subpart is the
Regional Administrator.
(2) Assistant Administrator. The responsibilities of the Assistant
Administrator, as described in Sec. 6.103(a)(3), shall be assumed by
the Assistant Administrator for Water for EPA actions covered by this
subpart.
(c) Responsibilities for subpart F--(1) Responsible official. The
responsible official for activities covered by this subpart is the
Regional Administrator.
(2) Assistant Administrator. The responsibilities of the Assistant
Administrator, as described in Sec. 6.103(a)(3), shall be assumed by
the Assistant Administrator for Enforcement and Compliance Monitoring
for EPA actions covered by this subpart.
(d) Responsibilities for subpart G. The Assistant Administrator for
Research and Development will be the responsible official for activities
covered by this subpart.
(e) Responsibilities for subpart H. The Assistant Administrator for
Solid Waste and Emergency Response will be
[[Page 102]]
the responsible official for activities covered by this subpart.
(f) Responsibilities for subpart I. The responsible official for new
construction and modification of special purpose facilities is as
follows:
(1) The Chief, Facilities Engineering and Real Estate Branch,
Facilities and Support Services Division, Office of the Assistant
Administrator for Administration and Resource Management (OARM) shall be
the responsible official on all new construction of special purpose
facilities and on all new modification projects for which the Facilities
Engineering and Real Estate Branch has received a funding allowance and
for all other field components not covered elsewhere in paragraph (f) of
this section.
(2) The Regional Administrator shall be the responsible official on
all improvement and modification projects for which the regional office
has received the funding allowance.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982; 50
FR 26315, June 25, 1985; 51 FR 32609, Sept. 12, 1986]
Sec. 6.104 Early involvement of private parties.
As required by 40 CFR 1501.2(d) and Sec. 6.103(a)(3)(v) of this
regulation, responsible officials must ensure early involvement of
private applicants or other non-Federal entities in the environmental
review process related to EPA grant and permit actions set forth under
subparts E, F, G, and H. The responsible official in conjunction with
OEA shall:
(a) Prepare where practicable, generic guidelines describing the
scope and level of environmental information required from applicants as
a basis for evaluating their proposed actions, and make these guidelines
available upon request.
(b) Provide such guidance on a project-by-project basis to any
applicant seeking assistance.
(c) Upon receipt of an application for agency approval, or
notification that an application will be filed, consult as required with
other appropriate parties to initiate and coordinate the necessary
environmental analyses.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]
Sec. 6.105 Synopsis of environmental review procedures.
(a) Responsible official. The responsible official shall utilize a
systematic, interdisciplinary approach to integrate natural and social
sciences as well as environmental design arts in planning programs and
making decisions which are subject to environmental review. The
respective staffs may be supplemented by professionals from other
agencies (see 40 CFR 1501.6) or consultants whenever in-house
capabilities are insufficiently interdisciplinary.
(b) Environmental information documents (EID). Environmental
information documents (EIDs) must be prepared by applicants, grantees,
or permittees and submitted to EPA as required in subparts E, F, G, H,
and I. EIDs will be of sufficient scope to enable the responsible
official to prepare an environmental assessment as described under Sec.
6.105(d) of this part and subparts E through I. EIDs will not have to be
prepared for actions where a categorical exclusion has been granted.
(c) Environmental reviews. Environmental reviews shall be conducted
on the EPA activities outlined in Sec. 6.102 of this part and set forth
under subparts E, F, G, H and I. This process shall consist of a study
of the action to identify and evaluate the related environmental
impacts. The process shall include a review of any related environmental
information document to determine whether any significant impacts are
anticipated and whether any changes can be made in the proposed action
to eliminate significant adverse impacts; when an EIS is required, EPA
has overall responsibility for this review, although grantees,
applicants, permittees or contractors will contribute to the review
through submission of environmental information documents.
(d) Environmental assessments. Environmental assessments (i.e.,
concise public documents for which EPA is responsible) are prepared to
provide sufficient data and analysis to determine whether an EIS or
finding of no significant impact is required. Where EPA determines that
a categorical exclusion is appropriate or an EIS will be prepared, there
is no need to prepare a formal environmental assessment.
[[Page 103]]
(e) Notice of intent and EISs. When the environmental review
indicates that a significant environmental impact may occur and
significant adverse impacts can not be eliminated by making changes in
the project, a notice of intent to prepare an EIS shall be published in
the Federal Register, scoping shall be undertaken in accordance with 40
CFR 1501.7, and a draft EIS shall be prepared and distributed. After
external coordination and evaluation of the comments received, a final
EIS shall be prepared and disseminated. The final EIS shall list any
mitigation measures necessary to make the recommended alternative
environmentally acceptable.
(f) Finding of no significant impact (FNSI). When the environmental
review indicates no significant impacts are anticipated or when the
project is altered to eliminate any significant adverse impacts, a FNSI
shall be issued and made available to the public. The environmental
assessment shall be included as a part of the FNSI. The FNSI shall list
any mitigation measures necessary to make the recommended alternative
environmentally acceptable.
(g) Record of decision. At the time of its decision on any action
for which a final EIS has been prepared, the responsible official shall
prepare a concise public record of the decision. The record of decision
shall describe those mitigation measures to be undertaken which will
make the selected alternative environmentally acceptable. Where the
final EIS recommends the alternative which is ultimately chosen by the
responsible official, the record of decision may be extracted from the
executive summary to the final EIS.
(h) Monitoring. The responsible official shall provide for
monitoring to assure that decisions on any action where a final EIS has
been prepared are properly implemented. Appropriate mitigation measures
shall be included in actions undertaken by EPA.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26315, June 25, 1985; 51
FR 32610, Sept. 12, 1986]
Sec. 6.106 Deviations.
(a) General. The Assistant Administrator, OEA, is authorized to
approve deviations from these regulations. Deviation approvals shall be
made in writing by the Assistant Administrator, OEA.
(b) Requirements. (1) Where emergency circumstances make it
necessary to take an action with significant environmental impact
without observing the substantive provisions of these regulations or the
CEQ Regulations, the responsible official shall notify the Assistant
Administrator, OEA, before taking such action. The responsible official
shall consider to the extent possible alternative arrangements; such
arrangements will be limited to actions necessary to control the
immediate impacts of the emergency; other actions remain subject to the
environmental review process. The Assistant Administrator, OEA, after
consulting CEQ, will inform the responsible official, as expeditiously
as possible of the disposition of his request.
(2) Where circumstances make it necessary to take action without
observing procedural provisions of these regulations, the responsible
official shall notify the Assistant Administrator, OEA, before taking
such action. If the Assistant Administrator, OEA, determines such a
deviation would be in the best interest of the Government, he shall
inform the responsible official, as soon as possible, of his approval.
(3) The Assistant Administrator, OEA, shall coordinate his action on
a deviation under Sec. 6.106(b) (1) or (2) of this part with the
Director, Grants Administration Division, Office of Planning and
Management, for any required grant-related deviation under 40 CFR
30.1000, as well as the appropriate Assistant Administrator.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]
Sec. 6.107 Categorical exclusions.
(a) General. Categories of actions which do not individually,
cumulatively over time, or in conjunction with other Federal, State,
local, or private actions have a significant effect on the quality of
the human environment and which have been identified as having no such
effect based on the requirements in Sec. 6.505, may be exempted from
the substantive environmental review requirements of this part.
Environmental information documents and
[[Page 104]]
environmental assessments or environmental impact statements will not be
required for excluded actions.
(b) Determination. The responsible official shall determine whether
an action is eligible for a categorical exclusion as established by
general criteria in Sec. 6.107 (d) and (e) and any applicable criteria
in program specific subparts of part 6 of this title. A determination
shall be made as early as possible following the receipt of an
application. The responsible official shall document the decision to
issue or deny an exclusion as soon as practicable following review in
accordance with Sec. 6.400(f). For qualified actions, the documentation
shall include the application, a brief description of the proposed
action, and a brief statement of how the action meets the criteria for a
categorical exclusion without violating criteria for not granting an
exclusion.
(c) Revocation. The responsible official shall revoke a categorical
exclusion and shall require a full environmental review if, subsequent
to the granting of an exclusion, the responsible official determines
that: (1) The proposed action no longer meets the requirements for a
categorical exclusion due to changes in the proposed action; or (2)
determines from new evidence that serious local or environmental issues
exist; or (3) that Federal, State, local, or tribal laws are being or
may be violated.
(d) General categories of actions eligible for exclusion. Actions
consistent with any of the following categories are eligible for a
categorical exclusion:
(1) Actions which are solely directed toward minor rehabilitation of
existing facilities, functional replacement of equipment, or towards the
construction of new ancillary facilities adjacent or appurtenant to
existing facilities;
(2) Other actions specifically allowed in program specific subparts
of this regulation; or
(3) Other actions developed in accordance with paragraph (f) of this
section.
(e) General criteria for not granting a categorical exclusion. (1)
The full environmental review procedures of this part must be followed
if undertaking an action consistent with allowable categories in
paragraph (d) of this section may involve serious local or environmental
issues, or meets any of the criteria listed below:
(i) The action is known or expected to have a significant effect on
the quality of the human environment, either individually, cumulatively
over time, or in conjunction with other Federal, State, local, tribal or
private actions;
(ii) The action is known or expected to directly or indirectly
affect:
(A) Cultural resource areas such as archaeological and historic
sites in accordance with Sec. 6.301,
(B) Endangered or threatened species and their critical habitats in
accordance with Sec. 6.302 or State lists,
(C) Environmentally important natural resource areas such as
floodplains, wetlands, important farmlands, aquifer recharge zones in
accordance with Sec. 6.302, or
(D) Other resource areas identified in supplemental guidance issued
by the OEA;
(iii) The action is known or expected not to be cost-effective or to
cause significant public controversy; or
(iv) Appropriate specialized program specific criteria for not
granting an exclusion found in other subparts of this regulation are
applicable to the action.
(2) Notwithstanding the provisions of paragraph (d) of this section,
if any of the conditions cited in paragraph (e)(1) of this section
exist, the responsible official shall ensure:
(i) That a categorical exclusion is not granted or, if previously
granted, that it is revoked according to paragraph (c) of this section;
(ii) That an adequate EID is prepared; and
(iii) That either an environmental assessment and FNSI or a notice
of intent for an EIS and ROD is prepared and issued.
(f) Developing new categories of excluded actions. The responsible
official, or other interested parties, may request that a new general or
specialized program specific category of excluded actions be created, or
that an existing category be amended or deleted. The request shall be in
writing to the Assistant Administrator, OEA, and shall contain adequate
information to support the request. Proposed new categories shall be
developed by OEA and published in the Federal Register as
[[Page 105]]
a proposed rule, amending paragraph (d) of this section when the
proposed new category applies to all eligible programs or, amending
appropriate paragraphs in other subparts of this part when the proposed
new category applies to one specific program. The publication shall
include a thirty (30) day public comment period. In addition to criteria
for specific programs listed in other subparts of this part, the
following general criteria shall be considered in evaluating proposals
for new categories:
(1) Any action taken seldom results in the effects identified in
general or specialized program specific criteria identified through the
application of criteria for not granting a categorical exclusion;
(2) Based upon previous environmental reviews, actions consistent
with the proposed category have not required the preparation of an EIS;
and
(3) Whether information adequate to determine if a potential action
is consistent with the proposed category will normally be available when
needed.
[50 FR 26315, June 25, 1985, as amended at 51 FR 32610, Sept. 12, 1986]
Sec. 6.108 Criteria for initiating an EIS.
The responsible official shall assure that an EIS will be prepared
and issued for actions under subparts E, G, H, and I when it is
determined that any of the following conditions exist:
(a) The Federal action may significantly affect the pattern and type
of land use (industrial, commercial, agricultural, recreational,
residential) or growth and distribution of population;
(b) The effects resulting from any structure or facility constructed
or operated under the proposed action may conflict with local, regional
or State land use plans or policies;
(c) The proposed action may have significant adverse effects on
wetlands, including indirect and cumulative effects, or any major part
of a structure or facility constructed or operated under the proposed
action may be located in wetlands;
(d) The proposed action may significantly affect threatened and
endangered species or their habitats identified in the Department of the
Interior's list, in accordance with Sec. 6.302, or a State's list, or a
structure or a facility constructed or operated under the proposed
action may be located in the habitat;
(e) Implementation of the proposed action or plan may directly cause
or induce changes that significantly:
(1) Displace population;
(2) Alter the character of existing residential areas;
(3) Adversely affect a floodplain; or
(4) Adversely affect significant amounts of important farmlands as
defined in requirements in Sec. 6.302(c), or agricultural operations on
this land.
(f) The proposed action may, directly, indirectly or cumulatively
have significant adverse effect on parklands, preserves, other public
lands or areas of recognized scenic, recreational, archaeological, or
historic value; or
(g) The Federal action may directly or through induced development
have a significant adverse effect upon local ambient air quality, local
ambient noise levels, surface water or groundwater quality or quantity,
water supply, fish, shellfish, wildlife, and their natural habitats.
[50 FR 26315, June 25, 1985, as amended at 51 FR 32611, Sept. 12, 1986]
Subpart B_Content of EISs
Sec. 6.200 The environmental impact statement.
Preparers of EISs must conform with the requirements of 40 CFR part
1502 in writing EISs.
Sec. 6.201 Format.
The format used for EISs shall encourage good analysis and clear
presentation of alternatives, including the proposed action, and their
environmental, economic and social impacts. The following standard
format for EISs should be used unless the responsible official
determines that there is a compelling reason to do otherwise:
(a) Cover sheet;
(b) Executive Summary;
(c) Table of contents;
(d) Purpose of and need for action;
(e) Alternatives including proposed action;
(f) Affected environment;
(g) Environmental consequences of the alternatives;
[[Page 106]]
(h) Coordination (includes list of agencies, organizations, and
persons to whom copies of the EIS are sent);
(i) List of preparers;
(j) Index (commensurate with complexity of EIS);
(k) Appendices.
Sec. 6.202 Executive summary.
The executive summary shall describe in sufficient detail (10-15
pages) the critical facets of the EIS so that the reader can become
familiar with the proposed project or action and its net effects. The
executive summary shall focus on:
(a) The existing problem;
(b) A brief description of each alternative evaluated (including the
preferred and no action alternatives) along with a listing of the
environmental impacts, possible mitigation measures relating to each
alternative, and any areas of controversy (including issues raised by
governmental agencies and the public); and
(c) Any major conclusions.
A comprehensive summary may be prepared in instances where the EIS is
unusually long in nature. In accordance with 40 CFR 1502.19, the
comprehensive summary may be circulated in lieu of the EIS; however,
both documents shall be distributed to any Federal, State and local
agencies who have EIS review responsibilities and also shall be made
available to other interested parties upon request.
Sec. 6.203 Body of EISs.
(a) Purpose and need. The EIS shall clearly specify the underlying
purpose and need to which EPA is responding. If the action is a request
for a permit or a grant, the EIS shall clearly specify the goals and
objectives of the applicant.
(b) Alternatives including the proposed action. In addition to 40
CFR 1502.14, the EIS shall discuss:
(1) Alternatives considered by the applicant. This section shall
include a balanced description of each alternative considered by the
applicant. These discussions shall include size and location of
facilities, land requirements, operation and maintenance requirements,
auxiliary structures such as pipelines or transmission lines, and
construction schedules. The alternative of no action shall be discussed
and the applicant's preferred alternative(s) shall be identified. For
alternatives which were eliminated from detailed study, a brief
discussion of the reasons for their having been eliminated shall be
included.
(2) Alternatives available to EPA. EPA alternatives to be discussed
shall include: (i) Taking an action; or (ii) taking an action on a
modified or alternative project, including an action not considered by
the applicant; and (iii) denying the action.
(3) Alternatives available to other permitting agencies. When
preparing a joint EIS, and if applicable, the alternatives available to
other Federal and/or State agencies shall be discussed.
(4) Identifying preferred alternative. In the final EIS, the
responsible official shall signify the preferred alternative.
(c) Affected environment and environmental consequences of the
alternatives. The affected environment on which the evaluation of each
alternative shall be based includes, for example, hydrology, geology,
air quality, noise, biology, socioeconomics, energy, land use, and
archeology and historic subjects. The discussion shall be structured so
as to present the total impacts of each alternative for easy comparison
among all alternatives by the reader. The effects of a ``no action''
alternative should be included to facilitate reader comparison of the
beneficial and adverse impacts of other alternatives to the applicant
doing nothing. A description of the environmental setting shall be
included in the ``no action'' alternative for the purpose of providing
needed background information. The amount of detail in describing the
affected environment shall be commensurate with the complexity of the
situation and the importance of the anticipated impacts.
(d) Coordination. The EIS shall include:
(1) The objections and suggestions made by local, State, and Federal
agencies before and during the EIS review process must be given full
consideration, along with the issues of public concern expressed by
individual citizens and interested environmental groups. The EIS must
include discussions of any such comments concerning our actions, and the
author of each
[[Page 107]]
comment should be identified. If a comment has resulted in a change in
the project or the EIS, the impact statement should explain the reason.
(2) Public participation through public hearings or scoping meetings
shall also be included. If a public hearing has been held prior to the
publication of the EIS, a summary of the transcript should be included
in this section. For the public hearing which shall be held after the
publication of the draft EIS, the date, time, place, and purpose shall
be included here.
(3) In the final EIS, a summary of the coordination process and EPA
responses to comments on the draft EIS shall be included.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26316, June 25, 1985]
Sec. 6.204 Incorporation by reference.
In addition to 40 CFR 1502.21, material incorporated into an EIS by
reference shall be organized to the extent possible into a Supplemental
Information Document and be made available for review upon request. No
material may be incorporated by reference unless it is reasonably
available for inspection by potentially interested persons within the
period allowed for comment.
Sec. 6.205 List of preparers.
When the EIS is prepared by contract, either under direct contract
to EPA or through an applicant's or grantee's contractor, the
responsible official must independently evaluate the EIS prior to its
approval and take responsibility for its scope and contents. The EPA
officials who undertake this evaluation shall also be described under
the list of preparers.
Subpart C_Coordination With Other Environmental Review and Consultation
Requirements
Sec. 6.300 General.
Various Federal laws and executive orders address specific
environmental concerns. The responsible official shall integrate to the
greatest practicable extent the applicable procedures in this subpart
during the implementation of the environmental review process under
subparts E through I. This subpart presents the central requirements of
these laws and executive orders. It refers to the pertinent authority
and regulations or guidance that contain the procedures. These laws and
executive orders establish review procedures independent of NEPA
requirements. The responsible official shall be familiar with any other
EPA or appropriate agency procedures implementing these laws and
executive orders.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26316, June 25, 1985]
Sec. 6.301 Landmarks, historical, and archeological sites.
EPA is subject to the requirements of the Historic Sites Act of
1935, 16 U.S.C. 461 et seq., the National Historic Preservation Act of
1966, as amended, 16 U.S.C. 470 et seq., the Archaeological and Historic
Preservation Act of 1974, 16 U.S.C. 469 et seq., and Executive Order
11593, entitled ``Protection and Enhancement of the Cultural
Environment.'' These statutes, regulations and executive orders
establish review procedures independent of NEPA requirements.
(a) National natural landmarks. Under the Historic Sites Act of
1935, the Secretary of the Interior is authorized to designate areas as
national natural landmarks for listing on the National Registry of
Natural Landmarks. In conducting an environmental review of a proposed
EPA action, the responsible official shall consider the existence and
location of natural landmarks using information provided by the National
Park Service pursuant to 36 CFR 62.6(d) to avoid undesirable impacts
upon such landmarks.
(b) Historic, architectural, archeological, and cultural sites.
Under section 106 of the National Historic Preservation Act and
Executive Order 11593, if an EPA undertaking affects any property with
historic, architectural, archeological or cultural value that is listed
on or eligible for listing on the National Register of Historic Places,
the responsible official shall comply with the procedures for
consultation and comment promulgated by the Advisory Council on Historic
Preservation in 36 CFR part 800. The responsible
[[Page 108]]
official must identify properties affected by the undertaking that are
potentially eligible for listing on the National Register and shall
request a determination of eligibility from the Keeper of the National
Register, Department of the Interior, under the procedures in 36 CFR
part 63.
(c) Historic, prehistoric and archeological data. Under the
Archeological and Historic Preservation Act, if an EPA activity may
cause irreparable loss or destruction of significant scientific,
prehistoric, historic or archeological data, the responsible official or
the Secretary of the Interior is authorized to undertake data recovery
and preservation activities. Data recovery and preservation activities
shall be conducted in accordance with implementing procedures
promulgated by the Secretary of the Interior. The National Park Service
has published technical standards and guidelines regarding archeological
preservation activities and methods at 48 FR 44716 (September 29, 1983).
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26316, June 25, 1985]
Sec. 6.302 Wetlands, floodplains, important farmlands, coastal zones,
wild and scenic rivers, fish and wildlife, and endangered species.
The following procedures shall apply to EPA administrative actions
in programs to which the pertinent statute or executive order applies.
(a) Wetlands protection. Executive Order 11990, Protection of
Wetlands, requires Federal agencies conducting certain activities to
avoid, to the extent possible, the adverse impacts associated with the
destruction or loss of wetlands and to avoid support of new construction
in wetlands if a practicable alternative exists. EPA's Statement of
Procedures on Floodplain Management and Wetlands Protection (dated
January 5, 1979, incorporated as appendix A hereto) requires EPA
programs to determine if proposed actions will be in or will affect
wetlands. If so, the responsible official shall prepare a floodplains/
wetlands assessment, which will be part of the environmental assessment
or environmental impact statement. The responsible official shall either
avoid adverse impacts or minimize them if no practicable alternative to
the action exists.
(b) Floodplain management. Executive Order 11988, Floodplain
Management, requires Federal agencies to evaluate the potential effects
of actions they may take in a floodplain to avoid, to the extent
possible, adverse effects associated with direct and indirect
development of a floodplain. EPA's Statement of Procedures on Floodplain
Management and Wetlands Protection (dated January 5, 1979, incorporated
as appendix A hereto), requires EPA programs to determine whether an
action will be located in or will affect a floodplain. If so, the
responsible official shall prepare a floodplain/wetlands assessment. The
assessment will become part of the environmental assessment or
environmental impact statement. The responsible official shall either
avoid adverse impacts or minimize them if no practicable alternative
exists.
(c) Important farmlands. It is EPA's policy as stated in the EPA
Policy To Protect Environmentally Significant Agricultural Lands, dated
September 8, 1978, to consider the protection of the Nation's
significant/important agricultural lands from irreversible conversion to
uses which result in its loss as an environmental or essential food
production resource. In addition the Farmland Protection Policy Act,
(FPPA) 7 U.S.C. 4201 et seq., requires Federal agencies to use criteria
developed by the Soil Conservation Service, U.S. Department of
Agriculture, to:
(1) Identify and take into account the adverse effects of their
programs on the preservation of farmlands from conversion to other uses;
(2) Consider alternative actions, as appropriate, that could lessen
such adverse impacts; and
(3) Assure that their programs, to the extent possible, are
compatible with State and local government and private programs and
policies to protect farmlands. If an EPA action may adversely impact
farmlands which are classified prime, unique or of State and local
importance as defined in the Act, the responsible official shall in all
cases apply the evaluative criteria promulgated by the U.S. Department
of
[[Page 109]]
Agriculture at 7 CFR part 658. If categories of important farmlands,
which include those defined in both the FPPA and the EPA policy, are
identified in the project study area, both direct and indirect effects
of the undertaking on the remaining farms and farm support services
within the project area and immediate environs shall be evaluated.
Adverse effects shall be avoided or mitigated to the extent possible.
(d) Coastal zone management. The Coastal Zone Management Act, 16
U.S.C. 1451 et seq., requires that all Federal activities in coastal
areas be consistent with approved State Coastal Zone Management
Programs, to the maximum extent possible. If an EPA action may affect a
coastal zone area, the responsible official shall assess the impact of
the action on the coastal zone. If the action significantly affects the
coastal zone area and the State has an approved coastal zone management
program, a consistency determination shall be sought in accordance with
procedures promulgated by the Office of Coastal Zone Management in 15
CFR part 930.
(e) Wild and scenic rivers. (1) The Wild and Scenic Rivers Act, 16
U.S.C. 1274 et seq., establishes requirements applicable to water
resource projects affecting wild, scenic or recreational rivers within
the National Wild and Scenic Rivers system as well as rivers designated
on the National Rivers Inventory to be studied for inclusion in the
national system. Under the Act, a Federal agency may not assist, through
grant, loan, license or otherwise, the construction of a water resources
project that would have a direct and adverse effect on the values for
which a river in the National System or study river on the National
Rivers Inventory was established, as determined by the Secretary of the
Interior for rivers under the jurisdiction of the Department of the
Interior and by the Secretary of Agriculture for rivers under the
jurisdiction of the Department of Agriculture. Nothing contained in the
foregoing sentence, however, shall:
(i) Preclude licensing of, or assistance to, developments below or
above a wild, scenic or recreational river area or on any stream
tributary thereto which will not invade the area or unreasonably
diminish the scenic, recreational, and fish and wildlife values present
in the area on October 2, 1968; or
(ii) Preclude licensing of, or assistance to, developments below or
above a study river or any stream tributary thereto which will not
invade the area or diminish the scenic, recreational and fish and
wildlife values present in the area on October 2, 1968.
(2) The responsible official shall:
(i) Determine whether there are any wild, scenic or study rivers on
the National Rivers Inventory or in the planning area, and
(ii) Not recommend authorization of any water resources project that
would have a direct and adverse effect on the values for which such
river was established, as determined by the administering Secretary in
request of appropriations to begin construction of any such project,
whether heretofore or hereafter authorized, without advising the
administering Secretary, in writing of this intention at least sixty
days in advance, and without specifically reporting to the Congress in
writing at the time the recommendation or request is made in what
respect construction of such project would be in conflict with the
purposes of the Wild and Scenic Rivers Act and would affect the
component and the values to be protected by the Responsible Official
under the Act.
(3) Applicable consultation requirements are found in section 7 of
the Act. The Department of Agriculture has promulgated implementing
procedures, under section 7 at 36 CFR part 297, which apply to water
resource projects located within, above, below or outside a wild and
scenic river or study river under the Department's jurisdiction.
(f) Barrier islands. The Coastal Barrier Resources Act, 16 U.S.C.
3501 et seq., generally prohibits new Federal expenditures or financial
assistance for any purpose within the Coastal Barrier Resources System
on or after October 18, 1982. Specified exceptions to this prohibition
are allowed only after consultation with the Secretary of the Interior.
The responsible official shall ensure that consultation is carried out
[[Page 110]]
with the Secretary of the Interior before making available new
expenditures or financial assistance for activities within areas covered
by the Coastal Barriers Resources Act in accord with the U.S. Fish and
Wildlife Service published guidelines defining new expenditures and
financial assistance, and describing procedures for consultation at 48
FR 45664 (October 6, 1983).
(g) Fish and wildlife protection. The Fish and Wildlife Coordination
Act, 16 U.S.C. 661 et seq., requires Federal agencies involved in
actions that will result in the control or structural modification of
any natural stream or body of water for any purpose, to take action to
protect the fish and wildlife resources which may be affected by the
action. The responsible official shall consult with the Fish and
Wildlife Service and the appropriate State agency to ascertain the means
and measures necessary to mitigate, prevent and compensate for project-
related losses of wildlife resources and to enhance the resources.
Reports and recommendations of wildlife agencies should be incorporated
into the environmental assessment or environmental impact statement.
Consultation procedures are detailed in 16 U.S.C. 662.
(h) Endangered species protection. Under the Endangered Species Act,
16 U.S.C. 1531 et seq., Federal agencies are prohibited from
jeopardizing threatened or endangered species or adversely modifying
habitats essential to their survival. The responsible official shall
identify all designated endangered or threatened species or their
habitat that may be affected by an EPA action. If listed species or
their habitat may be affected, formal consultation must be undertaken
with the Fish and Wildlife Service or the National Marine Fisheries
Service, as appropriate. If the consultation reveals that the EPA
activity may jeopardize a listed species or habitat, mitigation measures
should be considered. Applicable consultation procedures are found in 50
CFR part 402.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26316, June 25, 1985]
Sec. 6.303 Air quality.
(a) The Clean Air Act, as amended in 1990, 42 U.S.C. 7476(c),
requires Federal actions to conform to any State implementation plan
approved or promulgated under section 110 of the Act. For EPA actions,
the applicable conformity requirements specified in 40 CFR part 51,
subpart W, 40 CFR part 93, subpart B, and the applicable State
implementation plan must be met.
(b) In addition, with regard to wastewater treatment works subject
to review under subpart E of this part, the responsible official shall
consider the air pollution control requirements specified in section
316(b) of the Clean Air Act, 42 U.S.C. 7616, and Agency implementation
procedures.
(c)-(g) [Reserved]
[58 FR 63247, Nov. 30, 1993]
Subpart D_Public and Other Federal Agency Involvement
Sec. 6.400 Public involvement.
(a) General. EPA shall make diligent efforts to involve the public
in the environmental review process consistent with program regulations
and EPA policies on public participation. The responsibile official
shall ensure that public notice is provided for in accordance with 40
CFR 1506.6(b) and shall ensure that public involvement is carried out in
accordance with EPA Public Participation Regulations, 40 CFR part 25,
and other applicable EPA public participation procedures.
(b) Publication of notices of intent. As soon as practicable after
his decision to prepare an EIS and before the scoping process, the
responsible official shall send the notice of intent to interested and
affected members of the public and shall request the OEA to publish the
notice of intent in the Federal Register. The responsible official shall
send to OEA the signed original notice of intent for Federal Register
publication purposes. The scoping process should be initiated as soon as
practicable in accordance with the requirements of 40 CFR 1501.7.
Participants in the scoping process shall be kept informed of
substantial changes which evolve during the EIS drafting process.
[[Page 111]]
(c) Public meetings or hearings. Public meetings or hearings shall
be conducted consistent with Agency program requirements. There shall be
a presumption that a scoping meeting will be conducted whenever a notice
of intent has been published. The responsible official shall conduct a
public hearing on a draft EIS. The responsible official shall ensure
that the draft EIS is made available to the public at least 30 days in
advance of the hearing.
(d) Findings of no significant impact (FNSI). The responsible
official shall allow for sufficient public review of a FNSI before it
becomes effective. The FNSI and attendant publication must state that
interested persons disagreeing with the decision may submit comments to
EPA. The responsible official shall not take administrative action on
the project for at least thirty (30) calendar days after release of the
FNSI and may allow more time for response. The responsible official
shall consider, fully, comments submitted on the FNSI before taking
administrative action. The FNSI shall be made available to the public in
accordance with the requirements and all appropriate recommendations
contained in Sec. 1506.6 of this title.
(e) Record of Decision (ROD). The responsible official shall
disseminate the ROD to those parties which commented on the draft or
final EIS.
(f) Categorical exclusions. (1) For categorical exclusion
determinations under subpart E (Wastewater Treatment Construction Grants
Program), an applicant who files for and receives a determination of
categorical exclusion under Sec. 6.107(a), or has one rescinded under
Sec. 6.107(c), shall publish a notice indicating the determination of
eligibility or rescission in a local newspaper of community-wide
circulation and indicate the availability of the supporting
documentation for public inspection. The responsible official shall,
concurrent with the publication of the notice, make the documentation as
outlined in Sec. 6.107(b) available to the public and distribute the
notice of the determination to all known interested parties.
(2) For categorical exclusion determinations under other subparts of
this regulation, no public notice need be issued; however, information
regarding these determinations may be obtained by contacting the U.S.
Environmental Protection Agency's Office of Research Program Management
for ORD actions, or the Office of Federal Activities for other program
actions.
[44 FR 64177, Nov. 6, 1979, as amended at 51 FR 32611, Sept. 12, 1986;
56 FR 20543, May 6, 1991]
Sec. 6.401 Official filing requirements.
(a) General. OEA is responsible for the conduct of the official
filing system for EISs. This system was established as a central
repository for all EISs which serves not only as means of advising the
public of the availability of each EIS but provides a uniform method for
the computation of minimum time periods for the review of EISs. OEA
publishes a weekly notice in the Federal Register listing all EISs
received during a given week. The 45-day and 30-day review periods for
draft and final EISs, respectively, are computed from the Friday
following a given reporting week. Pursuant to 40 CFR 1506.9, responsible
officials shall comply with the guidelines established by OEA on the
conduct of the filing system.
(b) Minimum time periods. No decision on EPA actions shall be made
until the later of the following dates:
(1) Ninety (90) days after the date established in Sec. 6.401(a) of
this part from which the draft EIS review time period is computed.
(2) Thirty (30) days after the date established in Sec. 6.401(a) of
this part from which the final EIS review time period is computed.
(c) Filing of EISs. All EISs, including supplements, must be
officially filed with OEA. Responsible officials shall transmit each EIS
in five (5) copies to the Director, Office of Environmental Review, EIS
Filing Section (A-104). OEA will provide CEQ with one copy of each EIS
filed. No EIS will be officially filed by OER unless the EIS has been
made available to the public. OEA will not accept unbound copies of EISs
for filing.
(d) Extensions or waivers. The responsible official may
independently extend review periods. In such cases, the responsible
official shall notify OEA as
[[Page 112]]
soon as possible so that adequate notice may be published in the weekly
Federal Register report. OEA upon a showing of compelling reasons of
national policy may reduce the prescribed review periods. Also, OEA upon
a showing by any other Federal agency of compelling reasons of national
policy may extend prescribed review periods, but only after consultation
with the responsible official. If the responsible official does not
concur with the extension of time, OEA may not extend a prescribed
review period more than 30 days beyond the minimum prescribed review
period.
(e) Rescission of filed EISs. The responsible official shall file
EISs with OEA at the same time they are transmitted to commenting
agencies and made available to the public. The responsible official is
required to reproduce an adequate supply of EISs to satisfy these
distribution requirements prior to filing an EIS. If the EIS is not made
available, OEA will consider retraction of the EIS or revision of the
prescribed review periods based on the circumstances.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]
Sec. 6.402 Availability of documents.
(a) General. The responsible official will ensure sufficient copies
of the EIS are distributed to interested and affected members of the
public and are made available for further public distribution. EISs,
comments received, and any underlying documents should be available to
the public pursuant to the provisions of the Freedom of Information Act
(5 U.S.C. 552(b)), without regard to the exclusion for interagency
memoranda where such memoranda transmit comments of Federal agencies on
the environmental impact of the proposed actions. To the extent
practicable, materials made available to the public shall be provided
without charge; otherwise, a fee may be imposed which is not more than
the actual cost of reproducing copies required to be sent to another
Federal agency.
(b) Public information. Lists of all notices, determinations and
other reports/documentation, related to these notices and
determinations, involving CEs, EAs, FNSIs, notices of intent, EISs, and
RODs prepared by EPA shall be available for public inspection and
maintained by the responsible official as a monthly status report. OEA
shall maintain a comprehensive list of notices of intent and draft and
final EISs provided by all responsible officials for public inspection
including publication in the Federal Register. In addition, OEA will
make copies of all EPA-prepared EISs available for public inspection;
the responsible official shall do the same for any EIS he/she
undertakes.
[44 FR 64177, Nov. 6, 1979, as amended at 51 FR 32611, Sept. 12, 1986]
Sec. 6.403 The commenting process.
(a) Inviting comments. After preparing a draft EIS and before
preparing a final EIS, the responsible official shall obtain the
comments of Federal agencies, other governmental entities and the public
in accordance with 40 CFR 1503.1.
(b) Response to comments. The responsible official shall respond to
comments in the final EIS in accordance with 40 CFR 1503.4.
Sec. 6.404 Supplements.
(a) General. The responsible official shall consider preparing
supplements to draft and final EISs in accordance with 40 CFR 1502.9(c).
A supplement shall be prepared, circulated and filed in the same fashion
(exclusive of scoping) as draft and final EISs.
(b) Alternative procedures. In the case where the responsible
official wants to deviate from existing procedures, OEA shall be
consulted. OEA shall consult with CEQ on any alternative arrangements.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]
Subpart E_Environmental Review Procedures for Wastewater Treatment
Construction Grants Program
Source: 50 FR 26317, June 25, 1985, unless otherwise noted.
Sec. 6.500 Purpose.
This subpart amplifies the procedures described in subparts A
through D with
[[Page 113]]
detailed environmental review procedures for the Municipal Wastewater
Treatment Works Construction Grants Program under Title II of the Clean
Water Act.
Sec. 6.501 Definitions.
(a) Step 1 facilities planning means preparation of a plan for
facilities as described in 40 CFR part 35, subpart E or I.
(b) Step 2 means a project to prepare design drawings and
specifications as described in 40 CFR part 35, subpart E or I.
(c) Step 3 means a project to build a publicly owned treatment works
as described in 40 CFR part 35, subpart E or I.
(d) Step 2+3 means a project which combines preparation of design
drawings and specifications as described in Sec. 6.501(b) and building
as described in Sec. 6.501(c).
(e) Applicant means any individual, agency, or entity which has
filed an application for grant assistance under 40 CFR part 35, subpart
E or I.
(f) Grantee means any individual, agency, or entity which has been
awarded wastewater treatment construction grant assistance under 40 CFR
part 35, subpart E or I.
(g) Responsible Official means a Federal or State official
authorized to fulfill the requirements of this subpart. The responsible
Federal official is the EPA Regional Administrator and the responsible
State official is as defined in a delegation agreement under 205(g) of
the Clean Water Act. The responsibilities of the State official are
subject to the limitations in Sec. 6.514 of this subpart.
(h) Approval of the facilities plan means approval of the facilities
plan for a proposed wastewater treatment works pursuant to 40 CFR part
35, subpart E or I.
Sec. 6.502 Applicability and limitations.
(a) Applicability. This subpart applies to the following actions:
(1) Approval of a facilities plan or an amendment to the plan;
(2) Award of grant assistance for a project where signficant change
has occurred in the project or its impact since prior compliance with
this part; and
(3) Approval of preliminary Step 3 work prior to the award of grant
assistance pursuant to 40 CFR part 35, subpart E or I.
(b) Limitations. (1) Except as provided in Sec. 6.504(c), all
recipients of Step 1 grant assistance must comply with the requirements,
steps, and procedures described in this subpart.
(2) As specified in 40 CFR 35.2113, projects that have not received
Step 1 grant assistance must comply with the requirements of this
subpart prior to submission of an application for Step 3 or Step 2+3
grant assistance.
(3) Except as otherwise provided in Sec. 6.507, no step 3 or 2=3
grant assistance may be awarded for the construction of any component/
portion of a proposed wastewater treatment system(s) until the
responsible official has:
(i) Completed the environmental review for all complete wastewater
treatment system alternatives under consideration for the facilities
planning area, or any larger study area identified for the purposes of
conducting an adequate environmental review as required under this
subpart; and
(ii) Recorded the selection of the preferred alternative(s) in the
appropriate decision document (ROD for EISs, FNSI for environmental
assessments, or written determination for categorical exclusions).
(4) In accord with Sec. 6.302(f), on or after October 18, 1982, no
new expenditures or financial assistance involving the construction
grants program can be made within the Coastal Barrier Resource System,
or for projects outside the system which would have the effect of
encouraging development in the system, other than specified exceptions
made by the EPA after consultation with the Secretary of the Interior.
[50 FR 26317, June 25, 1985, as amended at 51 FR 32611, Sept. 12, 1986]
Sec. 6.503 Overview of the environmental review process.
The process for conducting an environmental review of wastewater
treatment construction grant projects includes the following steps:
[[Page 114]]
(a) Consultation. The Step 1 grantee or the potential Step 3 or Step
2+3 applicant is encouraged to consult with the State and EPA early in
project formulation or the facilities planning stage to determine
whether a project is eligible for a categorical exclusion from the
remaining substantive environmental review requirements of this part
(Sec. 6.505), to determine alternatives to the proposed project for
evaluation, to identify potential environmental issues and opportunities
for public recreation and open space, and to determine the potential
need for partitioning the environmental review process and/or the need
for an Environmental Impact Statement (EIS).
(b) Determining categorical exclusion eligibility. At the request of
a potential Step 3 or Step 2+3 grant applicant, or a Step 1 facilities
planning grantee, the responsible official will determine if a project
is eligible for a categorical exclusion in accordance with Sec. 6.505.
A Step 1 facilities planning grantee awarded a Step 1 grant on or before
December 29, 1981 may request a categorical exclusion at any time during
Step 1 facilities planning. A potential Step 3 or Step 2+3 grant
applicant may request a categorical exclusion at any time before the
submission of a Step 3 or Step 2+3 grant application.
(c) Documenting environmental information. If the project is
determined to be ineligible for a categorical exclusion, or if no
request for a categorical exclusion is made, the potential Step 3 or
Step 2+3 applicant or the Step 1 grantee subsequently prepares an
Environmental Information Document (EID) (Sec. 6.506) for the project.
(d) Preparing environmental assessments. Except as provided in Sec.
6.506(c)(4) and following a review of the EID by EPA or by a State with
delegated authority, EPA prepares an environmental assessment (Sec.
6.506), or a State with delegated authority (Sec. 6.514) prepares a
preliminary environmental assessment. EPA reviews and finalizes any
preliminary assessments. EPA subsequently:
(1) Prepares and issues a Finding of No Significant Impact (FNSI)
(Sec. 6.508); or
(2) Prepares and issues a Notice of Intent to prepare an original or
supplemental EIS (Sec. 6.510) and Record of Decision (ROD) (Sec.
6.511).
(e) Monitoring. The construction and post-construction operation and
maintenance of the facilities are monitored (Sec. 6.512) to ensure
implementation of mitigation measures (Sec. 6.511) identified in the
FNSI or ROD.
[50 FR 26317, June 25, 1985, as amended at 51 FR 32611, Sept. 12, 1986]
Sec. 6.504 Consultation during the facilities planning process.
(a) General. Consistent with 40 CFR 1501.2 and 35.2030(c), the
responsible official shall initiate the environmental review process
early to identify environmental effects, avoid delays, and resolve
conflicts. The environmental review process should be integrated
throughout the facilities planning process. Two processes for
consultation are described in this section to meet this objective. The
first addresses projects awarded Step 1 grant assistance on or before
December 29, 1981. The second applies to projects not receiving grant
assistance for facilities planning on or before December 29, 1981 and,
therefore, subject to the regulations implementing the Municipal
Wastewater Treatment Construction Grant Amendments of 1981 (40 CFR part
35, subpart I).
(b) Projects receiving Step 1 grant assistance on or before December
29, 1981. (1) During facilities planning, the grantee shall evaluate
project alternatives and the existence of environmentally important
resource areas including those identified in Sec. 6.108 and Sec. 6.509
of this subpart, and potential for open space and recreation
opportunities in the facilities planning area. This evaluation is
intended to be brief and concise and should draw on existing information
from EPA, State agencies, regional planning agencies, areawide water
quality management agencies, and the Step 1 grantee. The Step 1 grantee
should submit this information to EPA or a delegated State at the
earliest possible time during facilities planning to allow EPA to
determine if the action is eligible for a categorical exclusion. The
evaluation and any additional analysis deemed necessary by the
responsible official may be used by EPA to determine whether
[[Page 115]]
the action is eligible for a categorical exclusion from the substantive
environmental review requirements of this part. If a categorical
exclusion is granted, the grantee will not be required to prepare a
formal EID nor will the responsible official be required to prepare an
environmental assessment under NEPA. If an action is not granted a
categorical exclusion, this evaluation may be used to determine the
scope of the EID required of the grantee. This information can also be
used to make an early determination of the need for partitioning the
environmental review or for an EIS. Whenever possible, the Step 1
grantee should discuss this initial evaluation with both the delegated
State and EPA.
(2) A review of environmental information developed by the grantee
should be conducted by the responsible official whenever meetings are
held to assess the progress of facilities plan development. These
meetings should be held after completion of the majority of the EID
document and before a preferred alternative is selected. Since any
required EIS must be completed before the approval of a facilities plan,
a decision whether to prepare an EIS is encouraged early during the
facilities planning process. These meetings may assist in this early
determination. EPA should inform interested parties of the following:
(i) The preliminary nature of the Agency's position on preparing an
EIS;
(ii) The relationship between the facilities planning and
environmental review processes;
(iii) The desirability of public input; and
(iv) A contact person for further information.
(c) Projects not receiving grant assistance for Step 1 facilities
planning on or before December 29, 1981. Potential Step 3 or Step 2+3
grant applicants should, in accordance with Sec. 35.2030(c), consult
with EPA and the State early in the facilities planning process to
determine the appropriateness of a categorical exclusion, the scope of
an EID, or the appropriateness of the early preparation of an
environmental assessment or an EIS. The consultation would be most
useful during the evaluation of project alternatives prior to the
selection of a preferred alternative to assist in resolving any
identified environmental problems.
Sec. 6.505 Categorical exclusions.
(a) General. At the request of an existing Step 1 facilities
planning grantee or of a potential Step 3 or Step 2+3 grant applicant,
the responsible official, as provided for in Sec. Sec. 6.107(b),
6.400(f) and 6.504(a), shall determine from existing information and
document whether an action is consistent with the categories eligible
for exclusion from NEPA review identified in Sec. 6.107(d) or Sec.
6.505(b) and not inconsistent with the criteria in Sec. 6.107(e) or
Sec. 6.505(c).
(b) Specialized categories of actions eligible for exclusion. For
this subpart, eligible actions consist of any of the categories in Sec.
6.107(d), or:
(1) Actions for which the facilities planning is consistent with the
category listed in Sec. 6.107(d)(1) which do not affect the degree of
treatment or capacity of the existing facility including, but not
limited to, infiltration and inflow corrections, grant-eligible
replacement of existing mechanical equipment or structures, and the
construction of small structures on existing sites;
(2) Actions in sewered communities of less than 10,000 persons which
are for minor upgrading and minor expansion of existing treatment works.
This category does not include actions that directly or indirectly
involve the extension of new collection systems funded with Federal or
other sources of funds;
(3) Actions in unsewered communities of less than 10,000 persons
where on-site technologies are proposed; or
(4) Other actions are developed in accordance with Sec. 6.107(f).
(c) Specialized Criteria for not granting a categorical exclusion.
(1) The full environmental review procedures of this part must be
followed if undertaking an action consistent with the categories
described in paragraph (b) of this section meets any of the criteria
listed in Sec. 6.107(e) or when:
(i) The facilities to be provided will (A) create a new, or (B)
relocate an existing, discharge to surface or ground waters;
[[Page 116]]
(ii) The facilities will result in substantial increases in the
volume of discharge or the loading of pollutants from an existing source
or from new facilities to receiving waters; or
(iii) The facilities would provide capacity to serve a population
30% greater than the existing population.
(d) Proceeding with grant awards. (1) After a categorical exclusion
on a proposed treatment works has been granted, and notices published in
accordance with Sec. 6.400(f), grant awards may proceed without being
subject to any further environmental review requirements under this
part, unless the responsible official later determines that the project,
or the conditions at the time the categorical determination was made,
have changed significantly since the independent EPA review of
information submitted by the grantee in support of the exclusion.
(2) For all categorical exclusion determinations:
(i) That are five or more years old on projects awaiting Step 2+3 or
Step 3 grant funding, the responsible official shall re-evaluate the
project, environmental conditions and public views and, prior to grant
award, either:
(A) Reaffirm--issue a public notice reaffirming EPA's decision to
proceed with the project without need for any further environmental
review;
(B) Supplement--update the information in the decision document on
the categorically excluded project and prepare, issue, and distribute a
revised notice in accordance with Sec. 6.107(f); or
(C) Reassess--revoke the categorical exclusion in accordance with
Sec. 6.107(c) and require a complete environmental review to determine
the need for an EIS in accordance with Sec. 6.506, followed by
preparation, issuance and distribution of an EA/FNSI or EIS/ROD.
(ii) That are made on projects that have been awarded a Step 2+3
grant, the responsible official shall, at the time of plans and
specifications review under Sec. 35.2202(b) of this title, assess
whether the environmental conditions or the project's anticipated impact
on the environment have changed and, prior to plans and specifications
approval, advise the Regional Administrator if additional environmental
review is necessary.
[50 FR 26317, June 25, 1985, as amended at 51 FR 32611, Sept. 12, 1986]
Sec. 6.506 Environmental review process.
(a) Review of completed facilities plans. The responsible official
shall ensure a review of the completed facilities plan with particular
attention to the EID and its utilization in the development of
alternatives and the selection of a preferred alternative. An adequate
EID shall be an integral part of any facilities plan submitted to EPA or
to a State. The EID shall be of sufficient scope to enable the
responsible official to make determinations on requests for partitioning
the environmental review process in accordance with Sec. 6.507 and for
preparing environmental assessments in accordance with Sec. 6.506(b).
(b) Environmental assessment. The environmental assessment process
shall cover all potentially significant environmental impacts. The
responsible official shall prepare a preliminary environmental
assessment on which to base a recommendation to finalize and issue the
environmental assessment/FNSI. For those States delegated environmental
review responsibilities under Sec. 6.514, the State responsible
official shall prepare the preliminary environmental assessment in
sufficient detail to serve as an adequate basis for EPA's independent
NEPA review and decision to finalize and issue an environmental
assessment/FNSI or to prepare and issue a notice of intent for an EIS/
ROD. The EPA also may require submission of supplementary information
before the facilities plan is approved if needed for its independent
review of the State's preliminary assessment for compliance with
environmental review requirements. Substantial requests for
supplementary information by EPA, including the review of the facilities
plan, shall be made in writing. Each of the following subjects outlined
below, and requirements of subpart C of this part, shall be reviewed by
the responsible official to identify potentially significant
environmental concerns and their associated potential impacts, and the
responsible official shall furthermore address these concerns and
[[Page 117]]
impacts in the environmental assessment:
(1) Description of the existing environment. For the delineated
facilities planning area, the existing environmental conditions relevant
to the analysis of alternatives, or to determining the environmental
impacts of the proposed action, shall be considered.
(2) Description of the future environment without the project. The
relevant future environmental conditions shall be described. The no
action alternative should be discussed.
(3) Purpose and need. This should include a summary discussion and
demonstration of the need, or absence of need, for wastewater treatment
in the facilities planning area, with particular emphasis on existing
public health or water quality problems and their severity and extent.
(4) Documentation. Citations to information used to describe the
existing environment and to assess future environmental impacts should
be clearly referenced and documented. These sources should include, as
appropriate but not limited to, local, tribal, regional, State, and
Federal agencies as well as public and private organizations and
institutions with responsibility or interest in the types of conditions
listed in Sec. 6.509 and in subpart C of this part.
(5) Analysis of alternatives. This discussion shall include a
comparative analysis of feasible alternatives, including the no action
alternative, throughout the study area. The alternatives shall be
screened with respect to capital and operating costs; direct, indirect,
and cumulative environmental effects; physical, legal, or institutional
constraints; and compliance with regulatory requirements. Special
attention should given to: the environmental consequences of long-term,
irreversible, and induced impacts; and for projects initiated after
September 30, 1978, that grant applicants have satisfactorily
demonstrated analysis of potential recreation and open-space
opportunities in the planning of the proposed treatment works. The
reasons for rejecting any alternatives shall be presented in addition to
any significant environmental benefits precluded by rejection of an
alternative. The analysis should consider when relevant to the project:
(i) Flow and waste reduction measures, including infiltration/inflow
reduction and pretreatment requirements;
(ii) Appropriate water conservation measures;
(iii) Alternative locations, capacities, and construction phasing of
facilities;
(iv) Alternative waste management techniques, including
pretreatment, treatment and discharge, wasterwater reuse, land
application, and individual systems;
(v) Alternative methods for management of sludge, other residual
materials, including utilization options such as land application,
composting, and conversion of sludge for marketing as a soil conditioner
or fertilizer;
(vi) Improving effluent quality through more efficient operation and
maintenance;
(vii) Appropriate energy reduction measures; and
(viii) Multiple use including recreation, other open space, and
environmental education.
(6) Evaluating environmental consequences of proposed action. A full
range of relevant impacts of the proposed action shall be discussed,
including measures to mitigate adverse impacts, any irreversible or
irretrievable commitments of resources to the project and the
relationship between local short-term uses of the environment and the
maintenance and enhancement of long-term productivity. Any specific
requirements, including grant conditions and areawide waste treatment
management plan requirements, should be identified and referenced. In
addition to these items, the responsible official may require that other
analyses and data in accordance with subpart C which are needed to
satisfy environmental review requirements be included with the
facilities plan. Such requirements should be discussed whenever meetings
are held with Step 1 grantees or potential Step 3 or Step 2 = 3
applicants.
(7) Minimizing adverse effects of the proposed action. (i)
Structural and nonstructural measures, directly or indirectly related to
the facilities plan, to mitigate or eliminate adverse effects
[[Page 118]]
on the human and natural environments, shall be identified during the
environmental review. Among other measures, structual provisions include
changes in facility design, size, and location; non-structural
provisions include staging facilities, monitoring and enforcement of
environmental regulations, and local commitments to develop and enforce
land use regulations.
(ii) The EPA shall not accept a facilities plan, nor award grant
assistance for its implementation, if the applicant/grantee has not
made, or agreed to make, changes in the project, in accordance with
determinations made in a FNSI based on its supporting environmental
assessment or the ROD for a EIS. The EPA shall condition a grant, or
seek other ways, to ensure that the grantee will comply with such
environmental review determinations.
(c) FNSI/EIS determination. The responsible official shall apply the
criteria under Sec. 6.509 to the following:
(1) A complete facilities plan;
(2) The EID;
(3) The preliminary environmental assessment; and
(4) Other documentation, deemed necessary by the responsible
official adequate to make an EIS determination by EPA. Where EPA
determines that an EIS is to be prepared, there is no need to prepare a
formal environmental assessment. If EPA or the State identifies
deficiencies in the EID, preliminary environmental assessment, or other
supporting documentation, necessary corrections shall be made to this
documentation before the conditions of the Step 1 grant are considered
satisfied or before the Step 3 or Step 2+3 application is considered
complete. The responsible official's determination to issue a FNSI or to
prepare an EIS shall constitute final Agency action, and shall not be
subject to administrative review under 40 CFR part 30, subpart L.
[50 FR 26317, June 25, 1985, as amended at 51 FR 32612, Sept. 12, 1986]
Sec. 6.507 Partitioning the environmental review process.
(a) Purpose. Under certain circumstances the building of a
component/portion of a wastewater treatment system may be justified in
advance of completing all NEPA requirements for the remainder of the
system(s). When there are overriding considerations of cost or impaired
program effectiveness, the responsible official may award a construction
grant, or approve procurement by other than EPA funds, for a discrete
component of a complete wastewater treatment system(s). The process of
partitioning the environmental review for the discrete component shall
comply with the criteria and procedures described in paragraph (b) of
this section. In addition, all reasonable alternatives for the overall
wastewater treatment works system(s) of which the component is a part
shall have been previously identified, and each part of the
environmental review for the remainder of the overall facilities
system(s) in the planning area in accordance with Sec. 6.502(b)(3)
shall comply with all requirements under Sec. 6.506.
(b) Criteria for partitioning. (1) Projects may be partitioned under
the following circumstances:
(i) To overcome impaired program effectiveness, the project
component, in addition to meeting the criteria listed in paragraph
(b)(2) of this section, must immediately remedy a severe public health,
water quality or other environmental problem; or
(ii) To significantly reduce direct costs on EPA projects, or other
related public works projects, the project component (such as major
pieces of equipment, portions of conveyances or small structures) in
addition to meeting the criteria listed in paragraph (b)(2) of this
section, must achieve a cost savings to the Federal Government and/or to
the grantee's or potential grantee's overall costs incurred in procuring
the wastewater treatment component(s) and/or the installation of other
related public works projects funded in coordination with other Federal,
State, tribal or local agencies.
(2) The project component also must:
(i) Not foreclose any reasonable alternatives identified for the
overall wastewater treatment works system(s);
(ii) Not cause significant adverse direct or indirect environmental
impacts including those which cannot be acceptably mitigated without
completing
[[Page 119]]
the entire wastewater treatment system of which the component is a part;
and
(iii) Not be highly controversial.
(c) Requests for partitioning. The applicant's or State's request
for partitioning must contain the following:
(1) A description of the discrete component proposed for
construction before completing the environmental review of the entire
facilities plan;
(2) How the component meets the above criteria;
(3) The environmental information required by Sec. 6.506 of this
subpart for the component; and
(4) Any preliminary information that may be important to EPA in an
EIS determination for the entire facilities plan (Sec. 6.509).
(d) Approval of requests for partitioning. The responsible official
shall:
(1) Review the request for partitioning against all requirements of
this subpart;
(2) If approvable, prepare and issue a FNSI in accordance with Sec.
6.508;
(3) Include a grant condition prohibiting the building of additional
or different components of the entire facilities system(s) in the
planning area as described in Sec. 6.502(b)(3)(i).
[50 FR 26317, June 25, 1985, as amended at 51 FR 32612, Sept. 12, 1986]
Sec. 6.508 Finding of No Significant Impact (FNSI) determination.
(a) Criteria for producing and distributing FNSIs. If, after
completion of the environmental review, EPA determines that an EIS will
not be required, the responsible official shall issue a FNSI in
accordance with Sec. Sec. 6.105(f) and 6.400(d). The FNSI will be based
on EPA's independent review of the preliminary environmental assessment
and any other environmental information deemed necessary by the
responsible official consistent with the requirements of Sec. 6.506(c).
Following the Agency's independent review, the environmental assessment
will be finalized and either be incorporated into, or attached to, the
FNSI. The FNSI shall list all mitigation measures as defined in Sec.
1508.20 of this title, and specifically identify those mitigation
measures necessary to make the recommended alternative environmentally
acceptable.
(b) Proceeding with grant awards. (1) Once an environmental
assessment has been prepared and the issued FNSI becomes effective for
the treatment works within the study area, grant awards may proceed
without preparation of additional FNSIs, unless the responsible official
later determines that the project or environmental conditions have
changed significantly from that which underwent environmental review.
(2) For all environmental assessment/FNSI determinations:
(i) That are five or more years old on projects awaiting Step 2+3 or
Step 3 grant funding, the responsible official shall re-evaluate the
project, environmental conditions and public views and, prior to grant
award, either:
(A) Reaffirm--issue a public notice reaffirming EPA's decision to
proceed with the project without revising the environmental assessment;
(B) Supplement--update information and prepare, issue and distribute
a revised EA/FNSI in accordance with Sec. Sec. 6.105(f) and 6.400(d);
or
(C) Reassess--withdraw the FNSI and publish a notice of intent to
produce an EIS followed by the preparation, issuance and distribution of
the EIS/ROD.
(ii) That are made on projects that have been awarded a Step 2+3
grant, the responsible official shall, at the time of plans and
specifications review under Sec. 35.2202(b) of this title, assess
whether the environmental conditions or the project's anticipated impact
on the environment have changed and, prior to plans and specifications
approval, advise the Regional Administrator if additional environmental
review is necessary.
[51 FR 32612, Sept. 12, 1986]
Sec. 6.509 Criteria for initiating Environmental Impact Statements
(EIS).
(a) Conditions requiring EISs. (1) The responsible official shall
assure that an EIS will be prepared and issued when it is determined
that the treatment works or collector system will cause any of the
conditions under Sec. 6.108 to exist, or when
[[Page 120]]
(2) The treated effluent is being discharged into a body of water
where the present classification is too lenient or is being challenged
as too low to protect present or recent uses, and the effluent will not
be of sufficient quality or quantity to meet the requirements of these
uses.
(b) Other conditions. The responsible official shall also consider
preparing an EIS if: The project is highly controversial; the project in
conjunction with related Federal, State, local or tribal resource
projects produces significant cumulative impacts; or if it is determined
that the treatment works may violate Federal, State, local or tribal
laws or requirements imposed for the protection of the environment.
Sec. 6.510 Environmental Impact Statement (EIS) preparation.
(a) Steps in preparing EISs. In addition to the requirements
specified in subparts A, B, C, and D of this part, the responsible
official will conduct the following activities:
(1) Notice of intent. If a determination is made that an EIS will be
required, the responsible official shall prepare and distribute a notice
of intent as required in Sec. 6.105(e) of this part.
(2) Scoping. As soon as possible, after the publication of the
notice of intent, the responsible official will convene a meeting of
affected Federal, State and local agencies, or affected Indian tribes,
the grantee and other interested parties to determine the scope of the
EIS. A notice of this scoping meeting must be made in accordance with
Sec. 6.400(a) and 40 CFR 1506.6(b). As part of the scoping meeting EPA,
in cooperation with any delegated State, will as a minimum:
(i) Determine the significance of issues for and the scope of those
significant issues to be analyzed in depth, in the EIS;
(ii) Identify the preliminary range of alternatives to be
considered;
(iii) Identify potential cooperating agencies and determine the
information or analyses that may be needed from cooperating agencies or
other parties;
(iv) Discuss the method for EIS preparation and the public
participation strategy;
(v) Identify consultation requirements of other environmental laws,
in accordance with subpart C; and
(vi) Determine the relationship between the EIS and the completion
of the facilities plan and any necessary coordination arrangements
between the preparers of both documents.
(3) Identifying and evaluating alternatives. Immediately following
the scoping process, the responsible official shall commence the
identification and evaluation of all potentially viable alternatives to
adequately address the range of issues identified in the scoping
process. Additional issues may be addressed, or others eliminated,
during this process and the reasons documented as part of the EIS.
(b) Methods for preparing EISs. After EPA determines the need for an
EIS, it shall select one of the following methods for its preparation:
(1) Directly by EPA's own staff;
(2) By EPA contracting directly with a qualified consulting firm;
(3) By utilizing a third party method, whereby the responsible
official enters into ``third party agreements'' for the applicant to
engage and pay for the services of a third party contractor to prepare
the EIS. Such agreement shall not be initiated unless both the applicant
and the responsible official agree to its creation. A third party
agreement will be established prior to the applicant's EID and eliminate
the need for that document. In proceeding under the third party
agreement, the responsible official shall carry out the following
practices:
(i) In consultation with the applicant, choose the third party
contractor and manage that contract;
(ii) Select the consultant based on ability and an absence of
conflict of interest. Third party contractors will be required to
execute a disclosure statement prepared by the responsible official
signifying they have no financial or other conflicting interest in the
outcome of the project; and
(iii) Specify the information to be developed and supervise the
gathering, analysis and presentation of the information. The responsible
official shall have sole authority for approval and
[[Page 121]]
modification of the statements, analyses, and conclusions included in
the third party EIS; or
(4) By utilizing a joint EPA/State process on projects within States
which have requirements and procedures comparable to NEPA, whereby the
EPA and the State agree to prepare a single EIS document to fulfill both
Federal and State requirements. Both EPA and the State shall sign a
Memorandum of Agreement which includes the responsibilities and
procedures to be used by both parties for the preparation of the EIS as
provided for in 40 CFR 1506.2(c).
Sec. 6.511 Record of Decision (ROD) for EISs and identification of
mitigation measures.
(a) Record of Decision. After a final EIS has been issued, the
responsible official shall prepare and issue a ROD in accordance with 40
CFR 1505.2 prior to, or in conjunction with, the approval of the
facilities plan. The ROD shall include identification of mitigation
measures derived from the EIS process including grant conditions which
are necessary to minimize the adverse impacts of the selected
alternative.
(b) Specific mitigation measures. Prior to the approval of a
facilities plan, the responsible official must ensure that effective
mitigation measures identified in the ROD will be implemented by the
grantee. This should be done by revising the facilities plan, initiating
other steps to mitigate adverse effects, or including conditions in
grants requiring actions to minimize effects. Care should be exercised
if a condition is to be imposed in a grant document to assure that the
applicant possesses the authority to fulfill the conditions.
(c) Proceeding with grant awards. (1) Once the ROD has been prepared
on the selected, or preferred, alternative(s) for the treatment works
described within the EIS, grant awards may proceed without the
preparation of supplemental EISs unless the responsible official later
determines that the project or the environmental conditions described
within the current EIS have changed significantly from the previous
environmental review in accordance with Sec. 1502.9(c) of this title.
(2) For all EIS/ROD determinations:
(i) That are five or more years old on projects awaiting Step 2+3 or
Step 3 grant funding, the responsible official shall re-evaluate the
project, environmental conditions and public views and, prior to grant
award, either:
(A) Reaffirm--issue a public notice reaffirming EPA's decision to
proceed with the project, and documenting that no additional significant
impacts were identified during the re-evaluation which would require
supplementing the EIS; or
(B) Supplement--conduct additional studies and prepare, issue and
distribute a supplemental EIS in accordance with Sec. 6.404 and
document the original, or any revised, decision in an addendum to the
ROD.
(ii) That are made on projects that have been awarded a Step 2+3
grant, the responsible official shall, at the time of plans and
specifications review under Sec. 35.2202(b) of this title, assess
whether the environmental conditions or the project's anticipated impact
on the environment have changed, and prior to plans and specifications
approval, advise the Regional Administrator if additional environmental
review is necessary.
[50 FR 26317, June 25, 1985, as amended at 51 FR 32613, Sept. 12, 1986]
Sec. 6.512 Monitoring for compliance.
(a) General. The responsible official shall ensure adequate
monitoring of mitigation measures and other grant conditions identified
in the FNSI, or ROD.
(b) Enforcement. If the grantee fails to comply with grant
conditions, the responsible official may consider applying any of the
sanctions specified in 40 CFR 30.900.
Sec. 6.513 Public participation.
(a) General. Consistent with public participation regulations in
part 25 of this title, and subpart D of this part, it is EPA policy that
certain public participation steps be achieved before the State and EPA
complete the environmental review process. As a minimum, all potential
applicants that do not qualify for a categorical exclusion shall conduct
the following steps in accordance with procedures specified in part 25
of this title:
[[Page 122]]
(1) One public meeting when alternatives have been developed, but
before an alternative has been selected, to discuss all alternatives
under consideration and the reasons for rejection of others; and
(2) One public hearing prior to formal adoption of a facilities plan
to discuss the proposed facilities plan and any needed mitigation
measures.
(b) Coordination. Public participation activities undertaken in
connection with the environmental review process should be coordinated
with any other applicable public participation program wherever
possible.
(c) Scope. The requirements of 40 CFR 6.400 shall be fulfilled, and
consistent with 40 CFR 1506.6, the responsible official may institute
such additional NEPA-related public participation procedures as are
deemed necessary during the environmental review process.
[50 FR 26317, June 25, 1985, as amended at 51 FR 32613, Sept. 12, 1986]
Sec. 6.514 Delegation to States.
(a) General. Authority delegated to the State under section 205(g)
of the Clean Water Act to review a facilities plan may include all EPA
activities under this part except for the following:
(1) Determinations of whether or not a project qualifies for a
categorical exclusion;
(2) Determinations to partition the environmental review process;
(3) Finalizing the scope of an EID when required to adequately
conclude an independent review of a preliminary environmental
assessment;
(4) Finalizing the scope of an environmental assessment, and
finalization, approval and issuance of a final environmental assessment;
(5) Determination to issue, and issuance of, a FNSI based on a
completed (Sec. 6.508) or partitioned (Sec. 6.507(d)(2)) environmental
review;
(6) Determination to issue, and issuance of, a notice of intent for
preparing an EIS;
(7) Preparation of EISs under Sec. 6.510(b) (1) and (2), final
decisions required for preparing an EIS under Sec. 6.510(b)(3),
finalizing the agreement to prepare an EIS under Sec. 6.510(b)(4),
finalizing the scope of an EIS, and issuance of draft, final and
supplemental EISs;
(8) Preparation and issuance of the ROD based on an EIS;
(9) Final decisions under other applicable laws described in subpart
C of this part;
(10) Determination following re-evaluations of projects awaiting
grant funding in the case of Step 3 projects whose existing evaluations
and/or decision documents are five or more years old, or determinations
following re-evaluations on projects submitted for plans and
specifications review and approval in the case of awarded Step 2+3
projects where the EPA Regional Administrator has been advised that
additional environmental review is necessary, in accordance with Sec.
6.505(d)(2), Sec. 6.508(b)(2) or Sec. 6.511(c)(2); and
(11) Maintenance of official EPA monthly status reports as required
under Sec. 6.402(b).
(b) Elimination of duplication. The responsible official shall
assure that maximum efforts are undertaken to minimize duplication
within the limits described under paragraph (a) of this section. In
carrying out requirements under this subpart, maximum consideration
shall be given to eliminating duplication in accordance with Sec.
1506.2 of this title. Where there are State or local procedures
comparable to NEPA, EPA should enter into memoranda of understanding
with these States concerning workload distribution and responsibilities
not specifically reserved to EPA in paragraph (a) of this section for
implementing the environmental review and facilities planning process.
[50 FR 26317, June 25, 1985, as amended at 51 FR 32613, Sept. 12, 1986]
Subpart F_Environmental Review Procedures for the New Source NPDES
Program
Sec. 6.600 Purpose.
(a) General. This subpart provides procedures for carrying out the
environmental review process for the issuance of new source National
Pollutant Discharge Elimination System (NPDES) discharge permits
authorized under section 306, section 402, and section 511(c)(1) of the
Clean Water Act.
[[Page 123]]
(b) Permit regulations. All references in this subpart to the permit
regulations shall mean parts 122 and 124 of title 40 of the CFR relating
to the NPDES program.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982]
Sec. 6.601 Definitions.
(a) The term administrative action for the sake of this subpart
means the issuance by EPA of an NPDES permit to discharge as a new
source, pursuant to 40 CFR 124.15.
(b) The term applicant for the sake of this subpart means any person
who applies to EPA for the issuance of an NPDES permit to discharge as a
new source.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982]
Sec. 6.602 Applicability.
(a) General. The procedures set forth under subparts A, B, C and D,
and this subpart shall apply to the issuance of new source NPDES
permits, except for the issuance of a new source NPDES permit from any
State which has an approved NPDES program in accordance with section
402(b) of the Clean Water Act.
(b) New Source Determination. An NPDES permittee must be determined
a new source before these procedures apply. New source determinations
will be undertaken pursuant to the provisions of the permit regulations
under Sec. 122.29(a) and (b) of this chapter and Sec. 122.53(h).
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982; 51
FR 32613, Sept. 12, 1986]
Sec. 6.603 Limitations on actions during environmental review process.
The processing and review of an applicant's NPDES permit application
shall proceed concurrently with the procedures within this subpart.
Actions undertaken by the applicant or EPA shall be performed consistent
with the requirements of Sec. 122.29(c) of this chapter.
[47 FR 9831, Mar. 8, 1982, as amended at 51 FR 32613, Sept. 12, 1986]
Sec. 6.604 Environmental review process.
(a) New source. If EPA's initial determination under Sec. 6.602(b)
is that the facility is a new source, the responsible official shall
evaluate any environmental information to determine if any significant
impacts are anticipated and an EIS is necessary. If the permit applicant
requests, the responsible official shall establish time limits for the
completion of the environmental review process consistent with 40 CFR
1501.8.
(b) Information needs. Information necessary for a proper
environmental review shall be provided by the permit applicant in an
environmental information document. The responsible official shall
consult with the applicant to determine the scope of an environmental
information document. In doing this the responsible official shall
consider the size of the new source and the extent to which the
applicant is capable of providing the required information. The
responsible official shall not require the applicant to gather data or
perform analyses which unnecessarily duplicate either existing data or
the results of existing analyses available to EPA. The responsible
official shall keep requests for data to the minimum consistent with his
responsibilities under NEPA.
(c) Environmental assessment. The responsible official shall prepare
a written environmental assessment based on an environmental review of
either the environmental information document and/or any other available
environmental information.
(d) EIS determination. (1) When the environmental review indicates
that a significant environmental impact may occur and that the
significant adverse impacts cannot be eliminated by making changes in
the proposed new source project, a notice of intent shall be issued, and
a draft EIS prepared and distributed. When the environmental review
indicates no significant impacts are anticipated or when the proposed
project is changed to eliminate the significant adverse impacts, a FNSI
shall be issued which lists any mitigation measures necessary to make
the recommended alternative environmentally acceptable.
[[Page 124]]
(2) The FNSI together with the environmental assessment that
supports the finding shall be distributed in accordance with Sec.
6.400(d) of this regulation.
(e) Lead agency. (1) If the environmental review reveals that the
preparation of an EIS is required, the responsible official shall
determine if other Federal agencies are involved with the project. The
responsible official shall contact all other involved agencies and
together the agencies shall decide the lead agency based on the criteria
set forth in 40 CFR 1501.5.
(2) If, after the meeting of involved agencies, EPA has been
determined to be the lead agency, the responsible official may request
that other involved agencies be cooperating agencies. Cooperating
agencies shall be chosen and shall be involved in the EIS preparation
process in the manner prescribed in the 40 CFR 1501.6(a). If EPA has
been determined to be a cooperating agency, the responsible official
shall be involved in assisting in the preparation of the EIS in the
manner prescribed in 40 CFR 1501.6(b).
(f) Notice of intent. (1) If EPA is the lead agency for the
preparation of an EIS, the responsible official shall arrange through
OER for the publication of the notice of intent in the Federal Register,
distribute the notice of intent and arrange and conduct a scoping
meeting as outlined in 40 CFR 1501.7.
(2) If the responsible official and the permit applicant agree to a
third party method of EIS preparation, pursuant to Sec. 6.604(g)(3) of
this part, the responsible official shall insure that a notice of intent
is published and that a scoping meeting is held before the third party
contractor begins work which may influence the scope of the EIS.
(g) EIS method. EPA shall prepare EISs by one of the following
means:
(1) Directly by its own staff;
(2) By contracting directly with a qualified consulting firm; or
(3) By utilizing a third party method, whereby the responsible
official enters into a third party agreement for the applicant to engage
and pay for the services of a third party contractor to prepare the EIS.
Such an agreement shall not be initiated unless both the applicant and
the responsible official agree to its creation. A third party agreement
will be established prior to the applicant's environmental information
document and eliminate the need for that document. In proceeding under
the third party agreement, the responsible official shall carry out the
following practices:
(i) In consultation with the applicant, choose the third party
contractor and manage that contract.
(ii) Select the consultant based on his ability and an absence of
conflict of interest. Third party contractors will be required to
execute a disclosure statement prepared by the responsible official
signifying they have no financial or other conflicting interest in the
outcome of the project.
(iii) Specify the information to be developed and supervise the
gathering, analysis and presentation of the information. The responsible
official shall have sole authority for approval and modification of the
statements, analyses, and conclusions included in the third party EIS.
(h) Documents for the administrative record. Pursuant to 40 CFR
124.9(b)(6) and 124.18(b)(5) any environmental assessment, FNSI EIS, or
supplement to an EIS shall be made a part of the administrative record
related to permit issuance.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982]
Sec. 6.605 Criteria for preparing EISs.
(a) General guidelines. (1) When determining the significance of a
proposed new source's impact, the responsible official shall consider
both its short term and long term effects as well as its direct and
indirect effects and beneficial and adverse environmental impacts as
defined in 40 CFR 1508.8.
(2) If EPA is proposing to issue a number of new source NPDES
permits during a limited time span and in the same general geographic
area, the responsible official shall examine the possibility of tiering
EISs. If the permits are minor and environmentally insignificant when
considered separately, the responsible official may determine that the
cumulative impact of the issuance of all these permits may have a
significant environmental effect and require an EIS for the area. Each
[[Page 125]]
separate decision to issue an NPDES permit shall then be based on the
information in this areawide EIS. Site specific EISs may be required in
certain circumstances in addition to the areawide EIS.
(b) Specific criteria. An EIS will be prepared when:
(1) The new source will induce or accelerate significant changes in
industrial, commercial, agricultural, or residential land use
concentrations or distributions which have the potential for significant
environmental effects. Factors that should be considered in determining
if these changes are environmentally significant include but are not
limited to: The nature and extent of the vacant land subject to
increased development pressure as a result of the new source; the
increases in population or population density which may be induced and
the ramifications of such changes; the nature of land use regulations in
the affected area and their potential effects on development and the
environment; and the changes in the availability or demand for energy
and the resulting environmental consequences.
(2) The new source will directly, or through induced development,
have significant adverse effect upon local ambient air quality, local
ambient noise levels, floodplains, surface or groundwater quality or
quantity, fish, wildlife, and their natural habitats.
(3) Any major part of the new source will have significant adverse
effect on the habitat of threatened or endangered species on the
Department of the Interior's or a State's lists of threatened and
endangered species.
(4) The environmental impact of the issuance of a new source NPDES
permit will have significant direct and adverse effect on a property
listed in or eligible for listing in the National Register of Historic
Places.
(5) Any major part of the source will have significant adverse
effects on parklands, wetlands, wild and scenic rivers, reservoirs or
other important bodies of water, navigation projects, or agricultural
lands.
Sec. 6.606 Record of decision.
(a) General. At the time of permit award, the responsible official
shall prepare a record of decision in those cases where a final EIS was
issued in accordance with 40 CFR 1505.2 and pursuant to the provisions
of the permit regulations under 40 CFR 124.15 and 124.18(b)(5). The
record of decision shall list any mitigation measures necessary to make
the recommended alternative environmentally acceptable.
(b) Mitigation measures. The mitigation measures derived from the
EIS process shall be incorporated as conditions of the permit; ancillary
agreements shall not be used to require mitigation.
[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982]
Sec. 6.607 Monitoring.
In accordance with 40 CFR 1505.3 and pursuant to 40 CFR 122.66(c)
and 122.10 the responsible official shall ensure that there is adequate
monitoring of compliance with all NEPA related requirements contained in
the permit.
[47 FR 9831, Mar. 8, 1982]
Subpart G_Environmental Review Procedures for Office of Research and
Development Projects
Source: 56 FR 20543, May 6, 1991, unless otherwise noted.
Sec. 6.700 Purpose.
(a) This subpart amplifies the requirements described in subparts A
through D by providing specific environmental review procedures for
activities undertaken or funded by the Office of Research and
Development (ORD).
(b) The ORD Program provides scientific support for setting
environmental standards as well as the technology needed to prevent,
monitor and control pollution. Intramural research is conducted at EPA
laboratories and field stations throughout the United States. Extramural
research is implemented through grants, cooperative agreements, and
contracts. The majority of ORD's research is conducted within the
confines of laboratories. Outdoor research includes monitoring,
sampling, and environmental stress and ecological effects studies.
[[Page 126]]
Sec. 6.701 Definition.
The term appropriate program official means the official at each
decision level within ORD to whom the Assistant Administrator has
delegated responsibility for carrying out the environmental review
process.
Sec. 6.702 Applicability.
The requirements of this subpart apply to administrative actions
undertaken to approve intramural and extramural projects under the
purview of ORD.
Sec. 6.703 General.
(a) Environmental information. (1) For intramural research projects,
information necessary to perform the environmental review shall be
obtained by the appropriate program official.
(2) For extramural research projects, environmental information
documents shall be submitted to EPA by applicants to facilitate the
Agency's environmental review process. Guidance on environmental
information documents shall be included in all assistance application
kits and in contract proposal instructions. If there is a question
concerning the preparation of an environmental information document, the
applicant should consult with the project officer or contract officer
for guidance.
(b) Environmental review. The diagram in figure 1 represents the
various stages of the environmental review process to be undertaken for
ORD projects.
(1) For intramural research projects, an environmental review will
be performed for each laboratory's projects at the start of the planning
year. The review will be conducted before projects are incorporated into
the ORD program planning system. Projects added at a later date and,
therefore, not identified at the start of the planning year, or any
redirection of a project that could have significant environmental
effects, also will be subjected to an environmental review. This review
will be performed in accordance with the process set forth in this
subpart and depicted in figure 1.
(2) For extramural research projects, the environmental review shall
be conducted before an initial or continuing award is made. The
appropriate program official will perform the environmental review in
accordance with the process set forth in this subpart and depicted in
figure 1. EPA form 5300-23 will be used to document categorical
exclusion determinations or, with appropriate supporting analysis, as
the environmental assessment (EA). The completed form 5300-23 and any
finding of no significant impact (FNSI) or environmental impact
statement (EIS) will be submitted with the proposal package to the
appropriate EPA assistance or contract office.
(c) Agency coordination. In order to avoid duplication of effort and
ensure consistency throughout the Agency, environmental reviews of ORD
projects will be coordinated, as appropriate and feasible, with reviews
performed by other program offices. Technical support documents prepared
for reviews in other EPA programs may be adopted for use in ORD's
environmental reviews and supplemented, as appropriate.
Sec. 6.704 Categorical exclusions.
(a) At the beginning of the environmental review process (see Figure
1), the appropriate program official shall determine whether an ORD
project can be categorically excluded from the substantive requirements
of a NEPA review. This determination shall be based on general criteria
in Sec. 6.107(d) and specialized categories of ORD actions eligible for
exclusion in Sec. 6.704(b). If the appropriate program official
determines that an ORD project is consistent with the general criteria
and any of the specialized categories of eligible activities, and does
not satisfy the criteria in Sec. 6.107(e) for not granting a
categorical exclusion, then this finding shall be documented and no
further action shall be required. A categorical exclusion shall be
revoked by the appropriate program official if it is determined that the
project meets the criteria for revocation in Sec. 6.107(c). Projects
that fail to qualify for categorical exclusion or for which categorical
exclusion has been revoked must undergo full environmental review in
accordance with Sec. 6.705 and Sec. 6.706.
(b) The following specialized categories of ORD actions are eligible
for
[[Page 127]]
categorical exclusion from a detailed NEPA review:
(1) Library or literature searches and studies;
(2) Computer studies and activities;
(3) Monitoring and sample collection wherein no significant
alteration of existing ambient conditions occurs;
(4) Projects conducted completely within a contained facility, such
as a laboratory or other enclosed building, where methods are employed
for appropriate disposal of laboratory wastes and safeguards exist
against hazardous, toxic, and radioactive materials entering the
environment. Laboratory directors or other appropriate officials must
certify and provide documentation that the laboratory follows good
laboratory practices and adheres to applicable Federal statutes,
regulations and guidelines.
Sec. 6.705 Environmental assessment and finding of no significant
impact.
(a) When a project does not meet any of the criteria for categorical
exclusion, the appropriate program official shall undertake an
environmental assessment in accordance with 40 CFR 1508.9 in order to
determine whether an EIS is required or if a FNSI can be made. ORD
projects which normally result in the preparation of an EA include the
following:
(1) Initial field demonstration of a new technology;
(2) Field trials of a new product or new uses of an existing
technology;
(3) Alteration of a local habitat by physical or chemical means.
(b) If the environmental assessment reveals that the research is not
anticipated to have a significant impact on the environment, the
appropriate program official shall prepare a FNSI in accordance with
Sec. 6.105(f). Pursuant to Sec. 6.400(d), no administrative action
will be taken on a project until the prescribed 30-day comment period
for a FNSI has elapsed and the Agency has fully considered all comments.
(c) On actions involving potentially significant impacts on the
environment, a FNSI may be prepared if changes have been made in the
proposed action to eliminate any significant impacts. These changes must
be documented in the proposal and in the FNSI.
(d) If the environmental assessment reveals that the research may
have a significant impact on the environment, an EIS must be prepared.
The appropriate program official may make a determination that an EIS is
necessary without preparing a formal environmental assessment. This
determination may be made by applying the criteria for preparation of an
EIS in Sec. 6.706.
Sec. 6.706 Environmental impact statement.
(a) Criteria for preparation. In performing the environmental
review, the appropriate program official shall assure that an EIS is
prepared when any of the conditions under Sec. 6.108 (a) through (g)
exist or when:
(1) The proposed action may significantly affect the environment
through the release of radioactive, hazardous or toxic substances;
(2) The proposed action, through the release of an organism or
organisms, may involve environmental effects which are significant;
(3) The proposed action involves effects upon the environment which
are likely to be highly controversial;
(4) The proposed action involves environmental effects which may
accumulate over time or combine with effects of other actions to create
impacts which are significant;
(5) The proposed action involves uncertain environmental effects or
highly unique environmental risks which may be significant.
(b) ORD actions which may require preparation of an EIS. There are
no ORD actions which normally require the preparation of an EIS.
However, each ORD project will be evaluated using the EIS criteria as
stated in Sec. 6.706(a) to determine whether an EIS must be prepared.
(c) Notice of intent. (1) If the environmental review reveals that a
proposed action may have a significant effect on the environment and
this effect cannot be eliminated by redirection of the research or other
means, the appropriate program official shall issue a notice of intent
to prepare an EIS pursuant to Sec. 6.400(b).
[[Page 128]]
(2) As soon as possible after release of the notice of intent, the
appropriate program official shall ensure that a draft EIS is prepared
in accordance with subpart B and that the public is involved in
accordance with subpart D.
(3) Draft and final EISs shall be sent to the Assistant
Administrator for ORD for approval.
(4) Pursuant to Sec. 6.401(b), a decision on whether to undertake
or fund a project must be made in conformance with the time frames
indicated.
(d) Record of decision. Before the project is undertaken or funded,
the appropriate program official shall prepare, in accordance with Sec.
6.105 (g) and (h), a record of decision in any case where a final EIS
has been issued.
[[Page 129]]
[GRAPHIC] [TIFF OMITTED] TC14NO91.165
[[Page 130]]
Subpart H_Environmental Review Procedures for Solid Waste Demonstration
Projects
Sec. 6.800 Purpose.
This subpart amplifies the procedures described in subparts A
through D by providing more specific environmental review procedures for
demonstration projects undertaken by the Office of Solid Waste and
Emergency Response.
[44 FR 64177, Nov. 6, 1979, as amended at 51 FR 32613, Sept. 12, 1986]
Sec. 6.801 Applicability.
The requirements of this subpart apply to solid waste demonstration
projects for resource recovery systems and improved solid waste disposal
facilities undertaken pursuant to section 8006 of the Resource
Conservation and Recovery Act of 1976.
Sec. 6.802 Criteria for preparing EISs.
The responsible official shall assure that an EIS will be prepared
when it is determined that any of the conditions in Sec. 6.108 exist.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26323, June 25, 1985]
Sec. 6.803 Environmental review process.
(a) Environmental information. (1) Environmental information
documents shall be submitted to EPA by grant applicants or contractors.
If there is a question concerning the need for a document, the potential
contractor or grantee should consult with the appropriate project
officer for the grant or contract.
(2) The environmental information document shall contain the same
sections specified for EIS's in subpart B. Guidance alerting potential
grantees and contractors of the environmental information documents
shall be included in all grant application kits, attached to letters
concerning the submission of unsolicited proposals, and included with
all requests for proposal.
(b) Environmental review. An environmental review will be conducted
before a grant or contract award is made. This review will include the
preparation of an environmental assessment by the responsible official;
the appropriate Regional Administrator's input will include his
recommendations on the need for an EIS.
(c) Notice of intent and EIS. Based on the environmental review if
the criteria in Sec. 6.802 of this part apply, the responsible official
will assure that a notice of intent and a draft EIS are prepared. The
responsible official may request the appropriate Regional Administrator
to assist him in the preparation and distribution of the environmental
documents.
(d) Finding of no significant impact. If the environmental review
indicated no significant environmental impacts, the responsible official
will assure that a FNSI is prepared which lists any mitigation measures
necessary to make the recommended alternative environmentally
acceptable.
(e) Timing of action. Pursuant to Sec. 6.401(b), in no case shall a
contract or grant be awarded until the prescribed 30-day review period
for a final EIS has elapsed. Similarly, no action shall be taken until
the 30-day comment period for a FNSI is completed.
Sec. 6.804 Record of decision.
The responsible official shall prepare a record of decision in any
case where final EIS has been issued in accordance with 40 CFR 1505.2.
It shall be prepared at the time of contract or grant award. The record
of decision shall list any mitigation measures necessary to make the
recommended alternative environmentally acceptable.
Subpart I_Environmental Review Procedures for EPA Facility Support
Activities
Sec. 6.900 Purpose.
This subpart amplifies the general requirements described in
subparts A through D by providing environmental procedures for the
preparation of EISs on construction and renovation of special purpose
facilities.
Sec. 6.901 Definitions.
(a) The term special purpose facility means a building or space,
including land incidental to its use, which is wholly or predominantly
utilized for the special purpose of an agency and not generally suitable
for other uses,
[[Page 131]]
as determined by the General Services Administration.
(b) The term program of requirements means a comprehensive document
(booklet) describing program activities to be accomplished in the new
special purpose facility or improvement. It includes architectural,
mechanical, structural, and space requirements.
(c) The term scope of work means a document similar in content to
the program of requirements but substantially abbreviated. It is usually
prepared for small-scale projects.
Sec. 6.902 Applicability.
(a) Actions covered. These procedures apply to all new special
purpose facility construction, activities related to this construction
(e.g., site acquisition and clearing), and any improvements or
modifications to facilities having potential environmental effects
external to the facility, including new construction and improvements
undertaken and funded by the Facilities Engineering and Real Estate
Branch, Facilities and Support Services Division, Office of the
Assistant Administrator for Administration and Resource Management; or
by a regional office .
(b) Actions excluded. This subpart does not apply to those
activities of the Facilities Engineering and Real Estate Branch,
Facilities and Support Services Division, for which the branch does not
have full fiscal responsibility for the entire project. This includes
pilot plant construction, land acquisition, site clearing and access
road construction where the Facilities Engineering and Real Estate
Branch's activity is only supporting a project financed by a program
office. Responsibility for considering the environmental impacts of such
projects rests with the office managing and funding the entire project.
Other subparts of this regulation apply depending on the nature of the
project.
[44 FR 64177, Nov. 6, 1979, as amended at 51 FR 32613, Sept. 12, 1986]
Sec. 6.903 Criteria for preparing EISs.
(a) Preliminary information. The responsible official shall request
an environmental information document from a construction contractor or
consulting architect/engineer employed by EPA if he is involved in the
planning, construction or modification of special purpose facilities
when his activities have potential environmental effects external to the
facility. Such modifications include but are not limited to facility
additions, changes in central heating systems or wastewater treatment
systems, and land clearing for access roads and parking lots.
(b) EIS preparation criteria. The responsible official shall conduct
an environmental review of all actions involving construction of special
purpose facilities and improvements to these facilities. The responsible
official shall assure that an EIS will be prepared when it is determined
that any of the conditions in Sec. 6.108 of this part exist.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26323, June 25, 1985]
Sec. 6.904 Environmental review process.
(a) Environmental review. (1) An environmental review shall be
conducted when the program of requirements or scope of work has been
completed for the construction, improvements, or modification of special
purpose facilities. For special purpose facility construction, the
Chief, Facilities Engineering and Real Estate Branch, shall request the
assistance of the appropriate program office and Regional Administrator
in the review. For modifications and improvement, the appropriate
responsible official shall request assistance in making the review from
other cognizant EPA offices.
(2) Any environmental information documents requested shall contain
the same sections listed for EISs in subpart B. Contractors and
consultants shall be notified in contractual documents when an
environmental information document must be prepared.
(b) Notice of intent, EIS, and FNSI. The responsible official shall
decide at the completion of the Environmental review whether there may
be any significant environmental impacts. If there could be significant
environmental impacts, a notice of intent and an EIS shall be prepared
according to the procedures under subparts A, B, C and D. If there are
not any significant environmental impacts, a FNSI shall be prepared
according to the procedures in subparts A and D. The FNSI shall list
[[Page 132]]
any mitigation measures necessary to make the recommended alternative
environmentally acceptable.
(c) Timing of action. Pursuant to Sec. 6.401(b), in no case shall a
contract be awarded or construction activities begun until the
prescribed 30-day wait period for a final EIS has elapsed. Similarly,
under Sec. 6.400(d), no action shall be taken until the 30-day comment
period for FNSIs is completed.
Sec. 6.905 Record of decision.
At the time of contract award, the responsible official shall
prepare a record of decision in those cases where a final EIS has been
issued in accordance with 40 CFR 1505.2. The record of decision shall
list any mitigation measures necessary to make the recommended
alternative environmentally acceptable.
Subpart J_Assessing the Environmental Effects Abroad of EPA Actions
Authority: Executive Order 12114, 42 U.S.C. 4321, note.
Source: 46 FR 3364, Jan. 14, 1981, unless otherwise noted.
Sec. 6.1001 Purpose and policy.
(a) Purpose. On January 4, 1979, the President signed Executive
Order 12114 entitled ``Environmental Effects Abroad of Major Federal
Actions.'' The purpose of this Executive Order is to enable responsible
Federal officials in carrying out or approving major Federal actions
which affect foreign nations or the global commons to be informed of
pertinent environmental considerations and to consider fully the
environmental impacts of the actions undertaken. While based on
independent authority, this Order furthers the purpose of the National
Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) and the Marine
Protection Research and Sanctuaries Act (MPRSA) (33 U.S.C. 1401 et
seq.). It should be noted, however, that in fulfilling its
responsibilities under Executive Order 12114, EPA shall be guided by CEQ
regulations only to the extent that they are made expressly applicable
by this subpart. The procedures set forth below reflect EPA's duties and
responsibilities as required under the Executive Order and satisfy the
requirement for issuance of procedures under section 2-1 of the
Executive Order.
(b) Policy. It shall be the policy of this Agency to carry out the
purpose and requirements of the Executive Order to the fullest extent
possible. EPA, within the realm of its expertise, shall work with the
Department of State and the Council on Environmental Quality to provide
information to other Federal agencies and foreign nations to heighten
awareness of and interest in the environment. EPA shall further
cooperate to the extent possible with Federal agencies to lend special
expertise and assistance in the preparation of required environmental
documents under the Executive Order. EPA shall perform environmental
reviews of activities significantly affecting the global commons and
foreign nations as required under Executive Order 12114 and as set forth
under these procedures.
Sec. 6.1002 Applicability.
(a) Administrative actions requiring environmental review. The
environmental review requirements apply to the activities of EPA as set
forth below:
(1) Major research or demonstration projects which affect the global
commons or a foreign nation.
(2) Ocean dumping activities carried out under section 102 of the
MPRSA which affect the related environment.
(3) Major permitting or licensing by EPA of facilities which affect
the global commons or the environment of a foreign nation. This may
include such actions as the issuance by EPA of hazardous waste
treatment, storage, or disposal facility permits pursuant to section
3005 of the Resource Conservation and Recovery Act (42 U.S.C. 6925),
NPDES permits pursuant to section 402 of the Clean Water Act (33 U.S.C.
1342), and prevention of significant deterioration approvals pursuant to
Part C of the Clean Air Act (42 U.S.C. 7470 et seq.).
(4) Wastewater Treatment Construction Grants Program under section
201 of the Clean Water Act when activities
[[Page 133]]
addressed in the facility plan would have environmental effects abroad.
(5) Other EPA activities as determined by OER and OIA (see Sec.
6.1007(c)).
Sec. 6.1003 Definitions.
As used in this subpart, environment means the natural and physical
environment and excludes social, economic and other environments; global
commons is that area (land, air, water) outside the jurisdiction of any
nation; and responsible official is either the EPA Assistant
Administrator or Regional Administrator as appropriate for the
particular EPA program. Also, an action significantly affects the
environment if it does significant harm to the environment even though
on balance the action may be beneficial to the environment. To the
extent applicable, the responsible official shall address the
considerations set forth in the CEQ Regulations under 40 CFR 1508.27 in
determining significant effect.
Sec. 6.1004 Environmental review and assessment requirements.
(a) Research and demonstration projects. The appropriate Assistant
Administrator is responsible for performing the necessary degree of
environmental review on research and demonstration projects undertaken
by EPA. If the research or demonstration project affects the environment
of the global commons, the applicant shall prepare an environmental
analysis. This will assist the responsible official in determining
whether an EIS is necessary. If it is determined that the action
significantly affects the environment of the global commons, then an EIS
shall be prepared. If the undertaking significantly affects a foreign
nation EPA shall prepare a unilateral, bilateral or multilateral
environmental study. EPA shall afford the affected foreign nation or
international body or organization an opportunity to participate in this
study. This environmental study shall discuss the need for the action,
analyze the environmental impact of the various alternatives considered
and list the agencies and other parties consulted.
(b) Ocean dumping activities. (1) The Assistant Administrator for
Water and Waste Management shall ensure the preparation of appropriate
environmental documents relating to ocean dumping activities in the
global commons under section 102 of the MPRSA. For ocean dumping site
designations prescribed pursuant to section 102(c) of the MPRSA and 40
CFR part 228, EPA shall prepare an environmental impact statement
consistent with the requirements of EPA's Procedures for the Voluntary
Preparation of Environmental Impact Statements dated October 21, 1974
(see 39 FR 37419). Also EPA shall prepare an environmental impact
statement for the establishment or revision of criteria under section
102(a) of MPRSA.
(2) For individual permits issued by EPA under section 102(b) an
environmental assessment shall be made by EPA. Pursuant to 40 CFR part
221, the permit applicant shall submit with the application an
environmental analysis which includes a discussion of the need for the
action, an outline of alternatives, and an analysis of the environmental
impact of the proposed action and alternatives consistent with the EPA
criteria established under section 102(a) of MPRSA. The information
submitted under 40 CFR part 221 shall be sufficient to satisfy the
environmental assessment requirement.
(c) EPA permitting and licensing activities. The appropriate
Regional Administrator is responsible for conducting concise
environmental reviews with regard to permits issued under section 3005
of the Resource Conservation and Recovery Act (RCRA permits), section
402 of the Clean Water Act (NPDES permits), and section 165 of the Clean
Air Act (PSD permits), for such actions undertaken by EPA which affect
the global commons or foreign nations. The information submitted by
applicants for such permits or approvals under the applicable
consolidated permit regulations (40 CFR parts 122 and 124) and
Prevention of Significant Deterioration (PSD) regulations (40 CFR part
52) shall satisfy the environmental document requirement under section
2-4(b) of Executive Order 12114. Compliance with applicable requirements
in part 124 of the consolidated permit regulations (40 CFR part 124)
shall be sufficient to satisfy the requirements to
[[Page 134]]
conduct a concise environmental review for permits subject to this
paragraph.
(d) Wastewater treatment facility planning. 40 CFR 6.506 details the
environmental review process for the facilities planning process under
the wastewater treatment works construction grants program. For the
purpose of these regulations, the facility plan shall also include a
concise environmental review of those activities that would have
environmental effects abroad. This shall apply only to the Step 1 grants
awarded after January 14, 1981, but on or before December 29, 1981, and
facilities plans developed after December 29, 1981. Where water quality
impacts identified in a facility plan are the subject or water quality
agreements with Canada or Mexico, nothing in these regulations shall
impose on the facility planning process coordination and consultation
requirements in addition to those required by such agreements.
(e) Review by other Federal agencies and other appropriate
officials. The responsible officials shall consult with other Federal
agencies with relevant expertise during the preparation of the
environmental document. As soon as feasible after preparation of the
environmental document, the responsible official shall make the document
available to the Council on Environmental Quality, Department of State,
and other appropriate officials. The responsible official with
assistance from OIA shall work with the Department of State to establish
procedures for communicating with and making documents available to
foreign nations and international organizations.
[46 FR 3364, Jan. 14, 1981, as amended at 50 FR 26323, June 25, 1985]
Sec. 6.1005 Lead or cooperating agency.
(a) Lead Agency. Section 3-3 of Executive Order 12114 requires the
creation of a lead agency whenever an action involves more than one
Federal agency. In implementing section 3-3, EPA shall, to the fullest
extent possible, follow the guidance for the selection of a lead agency
contained in 40 CFR 1501.5 of the CEQ regulations.
(b) Cooperating Agency. Under section 2-4(d) of the Executive Order,
Federal agencies with special expertise are encouraged to provide
appropriate resources to the agency preparing environmental documents in
order to avoid duplication of resources. In working with a lead agency,
EPA shall to the fullest extent possible serve as a cooperating agency
in accordance with 40 CFR 1501.6. When other program commitments
preclude the degree of involvement requested by the lead agency, the
responsible EPA official shall so inform the lead agency in writing.
Sec. 6.1006 Exemptions and considerations.
Under section 2-5 (b) and (c) of the Executive Order, Federal
agencies may provide for modifications in the contents, timing and
availability of documents or exemptions from certain requirements for
the environmental review and assessment. The responsible official, in
consultation with the Director, Office of Environmental Review (OER),
and the Director, Office of International Activities (OIA), may approve
modifications for situations described in section 2-5(b). The
responsible official, in consultation with the Director, OER and
Director OIA, shall obtain exemptions from the Administrator for
situations described in section 2-5(c). The Department of State and the
Council on Environmental Quality shall be consulted as soon as possible
on the utilization of such exemptions.
Sec. 6.1007 Implementation.
(a) Oversight. OER is responsible for overseeing the implementation
of these procedures and shall consult with OIA wherever appropriate. OIA
shall be utilized for making formal contacts with the Department of
State. OER shall assist the responsible officials in carrying out their
responsibilities under these procedures.
(b) Information exchange. OER with the aid of OIA, shall assist the
Department of State and the Council on Environmental Quality in
developing the informational exchange on environmental review activities
with foreign nations.
(c) Unidentified activities. The responsible official shall consult
with OER
[[Page 135]]
and OIA to establish the type of environmental review or document
appropriate for any new EPA activities or requirements imposed upon EPA
by statute, international agreement or other agreements.
Appendix A to Part 6--Statement of Procedures on Floodplain Management
and Wetlands Protection
Contents:
Section 1 General
Section 2 Purpose
Section 3 Policy
Section 4 Definitions
Section 5 Applicability
Section 6 Requirements
Section 7 Implementation
Section 1 General
a. Executive Order 11988 entitled ``Floodplain Management'' dated
May 24, 1977, requires Federal agencies to evaluate the potential
effects of actions it may take in a floodplain to avoid adversely
impacting floodplains wherever possible, to ensure that its planning
programs and budget requests reflect consideration of flood hazards and
floodplain management, including the restoration and preservation of
such land areas as natural undeveloped floodplains, and to prescribe
procedures to implement the policies and procedures of this Executive
Order. Guidance for implementation of the Executive Order has been
provided by the U.S. Water Resources Council in its Floodplain
Management Guidelines dated February 10, 1978 (see 40 FR 6030).
b. Executive Order 11990 entitled ``Protection of Wetlands'', dated
May 24, 1977, requires Federal agencies to take action to avoid
adversely impacting wetlands wherever possible, to minimize wetlands
destruction and to preserve the values of wetlands, and to prescribe
procedures to implement the policies and procedures of this Executive
Order.
c. It is the intent of these Executive Orders that, wherever
possible, Federal agencies implement the floodplains/wetlands
requirements through existing procedures, such as those internal
procedures established to implement the National Environmental Policy
Act (NEPA) and OMB A-95 review procedures. In those instances where the
environmental impacts of a proposed action are not significant enough to
require an environmental impact statement (EIS) pursuant to section
102(2)(C) of NEPA, or where programs are not subject to the requirements
of NEPA, alternative but equivalent floodplain/wetlands evaluation and
notice procedures must be established.
Section 2 Purpose
a. The purpose of this Statement of Procedures is to set forth
Agency policy and guidance for carrying out the provisions of Executive
Orders 11988 and 11990.
b. EPA program offices shall amend existing regulations and
procedures to incorporate the policies and procedures set forth in this
Statement of Procedures.
c. To the extent possible, EPA shall accommodate the requirements of
Executive Orders 11988 and 11990 through the Agency NEPA procedures
contained in 40 CFR part 6.
Section 3 Policy
a. The Agency shall avoid wherever possible the long and short term
impacts associated with the destruction of wetlands and the occupancy
and modification of floodplains and wetlands, and avoid direct and
indirect support of floodplain and wetlands development wherever there
is a practicable alternative.
b. The Agency shall incorporate floodplain management goals and
wetlands protection considerations into its planning, regulatory, and
decisionmaking processes. It shall also promote the preservation and
restoration of floodplains so that their natural and beneficial values
can be realized. To the extent possible EPA shall:
(1) Reduce the hazard and risk of flood loss and wherever it is
possible to avoid direct or indirect adverse impact on floodplains;
(2) Where there is no practical alternative to locating in a
floodplain, minimize the impact of floods on human safety, health, and
welfare, as well as the natural environment;
(3) Restore and preserve natural and beneficial values served by
floodplains;
(4) Require the construction of EPA structures and facilities to be
in accordance with the standards and criteria, of the regulations
promulgated pursuant to the National Flood Insurance Program;
(5) Identify floodplains which require restoration and preservation
and recommend management programs necessary to protect these floodplains
and to include such considerations as part of on-going planning
programs; and
(6) Provide the public with early and continuing information
concerning floodplain management and with opportunities for
participating in decision making including the (evaluation of) tradeoffs
among competing alternatives.
c. The Agency shall incorporate wetlands protection considerations
into its planning, regulatory, and decisionmaking processes. It shall
minimize the destruction, loss, or degradation of wetlands and preserve
and enhance the natural and beneficial values of wetlands. Agency
activities shall continue to
[[Page 136]]
be carried out consistent with the Administrator's Decision Statement
No. 4 dated February 21, 1973 entitled ``EPA Policy to Protect the
Nation's Wetlands.''
Section 4 Definitions
a. Base Flood means that flood which has a one percent chance of
occurrence in any given year (also known as a 100-year flood). This term
is used in the National Flood Insurance Program (NFIP) to indicate the
minimum level of flooding to be used by a community in its floodplain
management regulations.
b. Base Floodplain means the land area covered by a 100-year flood
(one percent chance floodplain). Also see definition of floodplain.
c. Flood or Flooding means a general and temporary condition of
partial or complete inundation of normally dry land areas from the
overflow of inland and/or tidal waters, and/or the unusual and rapid
accumulation or runoff of surface waters from any source, or flooding
from any other source.
d. Floodplain means the lowland and relatively flat areas adjoining
inland and coastal waters and other floodprone areas such as offshore
islands, including at a minimum, that area subject to a one percent or
greater chance of flooding in any given year. The base floodplain shall
be used to designate the 100-year floodplain (one percent chance
floodplain). The critical action floodplain is defined as the 500-year
floodplain (0.2 percent chance floodplain).
e. Floodproofing means modification of individual structures and
facilities, their sites, and their contents to protect against
structural failure, to keep water out or to reduce effects of water
entry.
f. Minimize means to reduce to the smallest possible amount or
degree.
g. Practicable means capable of being done within existing
constraints. The test of what is practicable depends upon the situation
and includes consideration of the pertinent factors such as environment,
community welfare, cost, or technology.
h. Preserve means to prevent modification to the natural floodplain
environment or to maintain it as closely as possible to its natural
state.
i. Restore means to re-establish a setting or environment in which
the natural functions of the floodplain can again operate.
j. Wetlands means those areas that are inundated by surface or
ground water with a frequency sufficient to support and under normal
circumstances does or would support a prevalence of vegetative or
aquatic life that requires saturated or seasonally saturated soil
conditions for growth and reproduction. Wetlands generally include
swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet
meadows, river overflows, mud flats, and natural ponds.
Section 5 Applicability
a. The Executive Orders apply to activities of Federal agencies
pertaining to (1) acquiring, managing, and disposing of Federal lands
and facilities, (2) providing Federally undertaken, financed, or
assisted construction and improvements, and (3) conducting Federal
activities and programs affecting land use, including but not limited to
water and related land resources planning, regulating, and licensing
activities.
b. These procedures shall apply to EPA's programs as follows: (1)
All Agency actions involving construction of facilities or management of
lands or property. This will require amendment of the EPA Facilities
Management Manual (October 1973 and revisions thereafter).
(2) All Agency actions where the NEPA process applies. This would
include the programs under sections 306/402 of the Clean Water Act
pertaining to new source permitting and section 201 of the Clean Water
Act pertaining to wastewater treatment construction grants.
(3) All agency actions where there is sufficient independent
statutory authority to carry out the floodplain/wetlands procedures.
(4) In program areas where there is no EIS requirement nor clear
statutory authority for EPA to require procedural implementation, EPA
shall continue to provide leadership and offer guidance so that the
value of floodplain management and wetlands protection can be understood
and carried out to the maximum extent practicable in these programs.
c. These procedures shall not apply to any permitting or source
review programs of EPA once such authority has been transferred or
delegated to a State. However, EPA shall, to the extent possible,
require States to provide equivalent effort to assure support for the
objectives of these procedures as part of the State assumption process.
Section 6 Requirements
a. Floodplain/Wetlands review of proposed Agency actions.
(1) Floodplain/Wetlands Determination-- Before undertaking an Agency
action, each program office must determine whether or not the action
will be located in or affect a floodplain or wetlands. The Agency shall
utilize maps prepared by the Federal Insurance Administration of the
Federal Emergency Management Agency (Flood Insurance Rate Maps or Flood
Hazard Boundary Maps), Fish and Wildlife Service (National Wetlands
Inventory Maps), and other appropriate agencies to determine whether a
proposed action is located in or will likely affect a floodplain or
wetlands. If there is no floodplain/wetlands impact identified, the
action may proceed without further consideration of the remaining
procedures set forth below.
[[Page 137]]
(2) Early Public Notice--When it is apparent that a proposed or
potential agency action is likely to impact a floodplain or wetlands,
the public should be informed through appropriate public notice
procedures.
(3) Floodplain/Wetlands Assessment--If the Agency determines a
proposed action is located in or affects a floodplain or wetlands, a
floodplain/wetlands assessment shall be undertaken. For those actions
where an environmental assessment (EA) or environmental impact statement
(EIS) is prepared pursuant to 40 CFR part 6, the floodplain/wetlands
assessment shall be prepared concurrently with these analyses and shall
be included in the EA or EIS. In all other cases, a floodplain/wetlands
assessment shall be prepared. Assessments shall consist of a description
of the proposed action, a discussion of its effect on the floodplain/
wetlands, and shall also describe the alternatives considered.
(4) Public Review of Assessments--For proposed actions impacting
floodplain/wetlands where an EA or EIS is prepared, the opportunity for
public review will be provided through the EIS provisions contained in
40 CFR parts 6, 25, or 35, where appropriate. In other cases, an
equivalent public notice of the floodplain/wetlands assessment shall be
made consistent with the public involvement requirements of the
applicable program.
(5) Minimize, Restore or Preserve--If there is no practicable
alternative to locating in or affecting the floodplain or wetlands, the
Agency shall act to minimize potential harm to the floodplain or
wetlands. The Agency shall also act to restore and preserve the natural
and beneficial values of floodplains and wetlands as part of the
analysis of all alternatives under consideration.
(6) Agency Decision--After consideration of alternative actions, as
they have been modified in the preceding analysis, the Agency shall
select the desired alternative. For all Agency actions proposed to be in
or affecting a floodplain/wetlands, the Agency shall provide further
public notice announcing this decision. This decision shall be
accompanied by a Statement of Findings, not to exceed three pages. This
Statement shall include: (i) The reasons why the proposed action must be
located in or affect the floodplain or wetlands; (ii) a description of
significant facts considered in making the decision to locate in or
affect the floodplain or wetlands including alternative sites and
actions; (iii) a statement indicating whether the proposed action
conforms to applicable State or local floodplain protection standards;
(iv) a description of the steps taken to design or modify the proposed
action to minimize potential harm to or within the floodplain or
wetlands; and (v) a statement indicating how the proposed action affects
the natural or beneficial values of the floodplain or wetlands. If the
provisions of 40 CFR part 6 apply, the Statement of Findings may be
incorporated in the final EIS or in the environmental assessment. In
other cases, notice should be placed in the Federal Register or other
local medium and copies sent to Federal, State, and local agencies and
other entities which submitted comments or are otherwise concerned with
the floodplain/wetlands assessment. For floodplain actions subject to
Office of Management and Budget (OMB) Circular A-95, the Agency shall
send the Statement of Findings to State and areawide A-95 clearinghouse
in the geographic area affected. At least 15 working days shall be
allowed for public and interagency review of the Statement of Findings.
(7) Authorizations/Appropriations--Any requests for new
authorizations or appropriations transmitted to OMB shall include, a
floodplain/wetlands assessment and, for floodplain impacting actions, a
Statement of Findings, if a proposed action will be located in a
floodplain or wetlands.
b. Lead agency concept. To the maximum extent possible, the Agency
shall relay on the lead agency concept to carry out the provisions set
forth in section 6.a of this appendix. Therefore, when EPA and another
Federal agency have related actions, EPA shall work with the other
agency to identify which agency shall take the lead in satisfying these
procedural requirements and thereby avoid duplication of efforts.
c. Additional floodplain management provisions relating to Federal
property and facilities.
(1) Construction Activities--EPA controlled structures and
facilities must be constructed in accordance with existing criteria and
standards set forth under the NFIP and must include mitigation of
adverse impacts wherever feasible. Deviation from these requirements may
occur only to the extent NFIP standards are demonstrated as
inappropriate for a given structure or facility.
(2) Flood Protection Measures--If newly constructed structures or
facilities are to be located in a floodplain, accepted floodproofing and
other flood protection measures shall be undertaken. To achieve flood
protection, EPA shall, wherever practicable, elevate structures above
the base flood level rather than filling land.
(3) Restoration and Preservation--As part of any EPA plan or action,
the potential for restoring and preserving floodplains and wetlands so
that their natural and beneficial values can be realized must be
considered and incorporated into the plan or action wherever feasible.
(4) Property Used by Public--If property used by the public has
suffered damage or is located in an identified flood hazard area, EPA
shall provide on structures, and other places where appropriate,
conspicuous indicators of past and probable flood height to enhance
public knowledge of flood hazards.
[[Page 138]]
(5) Transfer of EPA Property--When property in flood plains is
proposed for lease, easement, right-of-way, or disposal to non-Federal
public or private parties, EPA shall reference in the conveyance those
uses that are restricted under Federal, State and local floodplain
regulations and attach other restrictions to uses of the property as may
be deemed appropriate. Notwithstanding, EPA shall consider withholding
such properties from conveyance.
Section 7 Implementation
a. Pursuant to section 2, the EPA program offices shall amend
existing regulations, procedures, and guidance, as appropriate, to
incorporate the policies and procedures set forth in this Statement of
Procedures. Such amendments shall be made within six months of the date
of these Procedures.
b. The Office of External Affairs (OEA) is responsible for the
oversight of the implementation of this Statement of Procedures and
shall be given advanced opportunity to review amendments to regulations,
procedures, and guidance. OEA shall coordinate efforts with the program
offices to develop necessary manuals and more specialized supplementary
guidance to carry out this Statement of Procedures.
[44 FR 64177, Nov. 6, 1976, as amended at 50 FR 26323, June 25, 1985]
PART 7_NONDISCRIMINATION IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL
ASSISTANCE FROM THE ENVIRONMENTAL PROTECTION AGENCY--Table of Contents
Subpart A_General
Sec.
7.10 Purpose of this part.
7.15 Applicability.
7.20 Responsible agency officers.
7.25 Definitions.
Subpart B_Discrimination Prohibited on the Basis of Race, Color,
National Origin or Sex
7.30 General prohibition.
7.35 Specific prohibitions.
Subpart C_Discrimination Prohibited on the Basis of Handicap
7.45 General prohibition.
7.50 Specific prohibitions against discrimination.
7.55 Separate or different aid, benefits, or services.
7.60 Prohibitions and requirements relating to employment.
7.65 Accessibility.
7.70 New construction.
7.75 Transition plan.
Subpart D_Requirements for Applicants and Recipients
7.80 Applicants.
7.85 Recipients.
7.90 Grievance procedures.
7.95 Notice of nondiscrimination.
7.100 Intimidation and retaliation prohibited.
Subpart E_Agency Compliance Procedures
7.105 General policy.
7.110 Preaward compliance.
7.115 Postaward compliance.
7.120 Complaint investigations.
7.125 Coordination with other agencies.
7.130 Actions available to EPA to obtain compliance.
7.135 Procedure for regaining eligibility.
Appendix A to Part 7--Types of EPA Assistance as Listed in the ``Catalog
of Federal Domestic Assistance''
Authority: 42 U.S.C. 2000d to 2000d-7; 29 U.S.C. 794; 33 U.S.C. 1251
nt.
Source: 49 FR 1659, Jan. 12, 1984, unless otherwise noted.
Subpart A_General
Sec. 7.10 Purpose of this part.
This part implements: Title VI of the Civil Rights Act of 1964, as
amended; section 504 of the Rehabilitation Act of 1973, as amended; and
section 13 of the Federal Water Pollution Control Act Amendments of
1972, Public Law 92-500, (collectively, the Acts).
Sec. 7.15 Applicability.
This part applies to all applicants for, and recipients of, EPA
assistance in the operation of programs or activities receiving such
assistance beginning February 13, 1984. New construction (Sec. 7.70)
for which design was initiated prior to February 13, 1984, shall comply
with the accessibility requirements in the Department of Health,
Education and Welfare (now the Department of Health and Human Services)
nondiscrimination regulation, 45 CFR 84.23, issued June 3, 1977, or with
equivalent standards that ensure the facility is readily accessible to
and usable by handicapped persons. Such assistance includes but is not
limited to
[[Page 139]]
that which is listed in the Catalogue of Federal Domestic Assistance
under the 66.000 series. It supersedes the provisions of former 40 CFR
parts 7 and 12.
Sec. 7.20 Responsible agency officers.
(a) The EPA Office of Civil Rights (OCR) is responsible for
developing and administering EPA's means of ensuring compliance under
the Acts.
(b) EPA's Project Officers will, to the extent possible, be
available to explain to each recipient its obligations under this part
and to provide recipients with technical assistance or guidance upon
request.
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 7.25 Definitions.
As used in this part:
Administrator means the Administrator of EPA. It includes any other
agency official authorized to act on his or her behalf, unless explicity
stated otherwise.
Alcohol abuse means any misuse of alcohol which demonstrably
interferes with a person's health, interpersonal relations or working
ability.
Applicant means any entity that files an application or unsolicited
proposal or otherwise requests EPA assistance (see definition for EPA
assistance).
Assistant Attorney General is the head of the Civil Rights Division,
U.S. Department of Justice.
Award Official means the EPA official with the authority to approve
and execute assistance agreements and to take other assistance related
actions authorized by this part and by other EPA regulations or
delegation of authority.
Drug abuse means:
(a) The use of any drug or substance listed by the Department of
Justice in 21 CFR 1308.11, under authority of the Controlled Substances
Act, 21 U.S.C. 801, as a controlled substance unavailable for
prescription because:
(1) The drug or substance has a high potential for abuse,
(2) The drug or other substance has no currently accepted medical
use in treatment in the United States, or
(3) There is a lack of accepted safety for use of the drug or other
substance under medical supervision.
Note: Examples of drugs under paragraph (a)(1) of this section
include certain opiates and opiate derivatives (e.g., heroin) and
hallucinogenic substances (e.g., marijuana, mescaline, peyote) and
depressants (e.g., methaqualone). Examples of (a)(2) include opium, coca
leaves, methadone, amphetamines and barbiturates.
(b) The misuse of any drug or substance listed by the Department of
Justice in 21 CFR 1308.12-1308.15 under authority of the Controlled
Substances Act as a controlled substance available for prescription.
EPA means the United States Environmental Protection Agency.
EPA assistance means any grant or cooperative agreement, loan,
contract (other than a procurement contract or a contract of insurance
or guaranty), or any other arrangement by which EPA provides or
otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of personnel; or
(3) Real or personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if EPA's share of its fair market value is not returned to EPA.
Facility means all, or any part of, or any interests in structures,
equipment, roads, walks, parking lots, or other real or personal
property.
Handicapped person:
(a) Handicapped person means any person who (1) has a physical or
mental impairment which substantially limits one or more major life
activities, (2) has a record of such an impairment, or (3) is regarded
as having such an impairment. For purposes of employment, the term
handicapped person does not include any person who is an alcoholic or
drug abuser whose current use of alcohol or drugs prevents such
individual from performing the duties of the job in question or whose
employment, by reason of such current drug or alcohol abuse, would
constitute a direct threat to property or the safety of others.
(b) As used in this paragraph, the phrase:
(1) Physical or mental impairment means (i) any physiological
disorder or
[[Page 140]]
condition, cosmetic disfigurement, or anatomical loss affecting one or
more of the following body systems: Neurological; musculoskeletal;
special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genito-urinary; hemic and
lymphatic; skin; and endocrine; and (ii) any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities.
(2) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means:
(i) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by a recipient as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined above but is treated by a
recipient as having such an impairment.
Office of Civil Rights or OCR means the Director of the Office of
Civil Rights, EPA Headquarters or his/her designated representative.
Project Officer means the EPA official designated in the assistance
agreement (as defined in EPA assistance) as EPA's contact with the
recipient; Project Officers are responsible for monitoring the project.
Program or activity and program mean all of the operations of any
entity described in paragraphs (1) through (4) of this definition, any
part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (1), (2), or (3) of this definition.
Qualified handicapped person means:
(a) With respect to employment: A handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question.
(b) With respect to services: A handicapped person who meets the
essential eligibility requirements for the receipt of such services.
Racial classifications: \1\
---------------------------------------------------------------------------
\1\ Additional subcategories based on national origin or primary
language spoken may be used where appropriate on either a national or a
regional basis. Subparagraphs (a) through (e) are in conformity with
Directive 15 of the Office of Federal Statistical Policy and Standards,
whose function is now in the Office of Information and Regulatory
Affairs, Office of Management and Budget. Should that office, or any
successor office, change or otherwise amend the categories listed in
Directive 15, the categories in this paragraph shall be interpreted to
conform with any such changes or amendments.
---------------------------------------------------------------------------
[[Page 141]]
(a) American Indian or Alaskan native. A person having origins in
any of the original peoples of North America, and who maintains cultural
identification through tribal affiliation or community recognition.
(b) Asian or Pacific Islander. A person having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian
subcontinent, or the Pacific Islands. This area includes, for example,
China, Japan, Korea, the Philippine Islands, and Samoa.
(c) Black and not of Hispanic origin. A person having origins in any
of the black racial groups of Africa.
(d) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish culture or origin, regardless or race.
(e) White, not of Hispanic origin. A person having origins in any of
the original peoples of Europe, North Africa, or the Middle East.
Recipient means, for the purposes of this regulation, any State or
its political subdivision, any instrumentality of a State or its
political subdivision, any public or private agency, institution,
organization, or other entity, or any person to which Federal financial
assistance is extended directly or through another recipient, including
any successor, assignee, or transferee of a recipient, but excluding the
ultimate beneficiary of the assistance.
Section 13 refers to section 13 of the Federal Water Pollution
Control Act Amendments of 1972.
United States includes the States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
American Samoa, Guam, Wake Island, the Canal Zone, and all other
territories and possessions of the United States; the term State
includes any one of the foregoing.
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
Subpart B_Discrimination Prohibited on the Basis of Race, Color,
National Origin or Sex
Sec. 7.30 General prohibition.
No person shall be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving EPA assistance on the basis of race, color, national
origin, or on the basis of sex in any program or activity receiving EPA
assistance under the Federal Water Pollution Control Act, as amended,
including the Environmental Financing Act of 1972.
Sec. 7.35 Specific prohibitions.
(a) As to any program or activity receiving EPA assistance, a
recipient shall not directly or through contractual, licensing, or other
arrangements on the basis of race, color, national origin or, if
applicable, sex:
(1) Deny a person any service, aid or other benefit of the program
or activity;
(2) Provide a person any service, aid or other benefit that is
different, or is provided differently from that provided to others under
the program or activity;
(3) Restrict a person in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving any service, aid, or benefit
provided by the program or activity;
(4) Subject a person to segregation in any manner or separate
treatment in any way related to receiving services or benefits under the
program or activity;
(5) Deny a person or any group of persons the opportunity to
participate as members of any planning or advisory body which is an
integral part of the program or activity, such as a local sanitation
board or sewer authority;
(6) Discriminate in employment on the basis of sex in any program or
activity subject to section 13, or on the basis of race, color, or
national origin in any program or activity whose purpose is to create
employment; or, by means of employment discrimination, deny intended
beneficiaries the benefits of EPA assistance, or subject the
beneficiaries to prohibited discrimination.
[[Page 142]]
(7) In administering a program or activity receiving Federal
financial assistance in which the recipient has previously discriminated
on the basis of race, color, sex, or national origin, the recipient
shall take affirmative action to provide remedies to those who have been
injured by the discrimination.
(b) A recipient shall not use criteria or methods of administering
its program or activity which have the effect of subjecting individuals
to discrimination because of their race, color, national origin, or sex,
or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program or activity with respect
to individuals of a particular race, color, national origin, or sex.
(c) A recipient shall not choose a site or location of a facility
that has the purpose or effect of excluding individuals from, denying
them the benefits of, or subjecting them to discrimination under any
program or activity to which this part applies on the grounds of race,
color, or national origin or sex; or with the purpose or effect of
defeating or substantially impairing the accomplishment of the
objectives of this subpart.
(d) The specific prohibitions of discrimination enumerated above do
not limit the general prohibition of Sec. 7.30.
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
Subpart C_Discrimination Prohibited on the Basis of Handicap
Sec. 7.45 General prohibition.
No qualified handicapped person shall solely on the basis of
handicap be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity receiving EPA assistance.
Sec. 7.50 Specific prohibitions against discrimination.
(a) A recipient, in providing any aid, benefit or service under any
program or activity receiving EPA assistance shall not, on the basis of
handicap, directly or through contractual, licensing, or other
arrangement:
(1) Deny a qualified handicapped person any service, aid or other
benefit of a federally assisted program or activity;
(2) Provide different or separate aids, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless the action is necessary to provide qualified
handicapped persons with aids, benefits, or services that are as
effective as those provided to others;
(3) Aid or perpetuate discrimination against a qualified handicapped
person by providing significant assistance to an entity that
discriminates on the basis of handicap in providing aids, benefits, or
services to beneficiaries of the recipient's program or activity;
(4) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(5) Limit a qualified handicapped person in any other way in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving an aid, benefit or service from the program or
activity.
(b) A recipient may not, in determining the site or location of a
facility, make selections: (1) That have the effect of excluding
handicapped persons from, denying them the benefits of, or otherwise
subjecting them to discrimination under any program or activity that
receives EPA assistance or (2) that have the purpose or effect of
defeating or substantially impairing the accomplishment of the
objectives of the program or activity receiving EPA assistance with
respect to handicapped persons.
(c) A recipient shall not use criteria or methods of administering
any program or activity receiving EPA assistance which have the effect
of subjecting individuals to discrimination because of their handicap,
or have the effect of defeating or substantially impairing
accomplishment of the objectives of such program or activity with
respect to handicapped persons.
(d) Recipients shall take appropriate steps to ensure that
communications with their applicants, employees, and beneficiaries are
available to persons with impaired vision and hearing.
[[Page 143]]
(e) The exclusion of non-handicapped persons or specified classes of
handicapped persons from aid, benefits, or services limited by Federal
statute or Executive Order to handicapped persons or a different class
of handicapped persons is not prohibited by this subpart.
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 7.55 Separate or different aid, benefits, or services.
Recipients shall not deny a qualified handicapped person an
opportunity equal to that afforded others to participate in or benefit
from the aid, benefit, or service in the program or activity receiving
EPA assistance. Recipients shall administer programs or activities in
the most integrated setting appropriate to the needs of qualified
handicapped persons.
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 7.60 Prohibitions and requirements relating to employment.
(a) No qualified handicapped person shall, on the basis of handicap,
be subjected to discrimination in employment under any program or
activity that receives Federal assistance.
(b) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur, and
shall not limit, segregate, or classify applicants or employees in any
way that adversely affects their opportunities or status because of
handicap.
(c) The prohibition against discrimination in employment applies to
the following activities:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including those that are social
or recreational; or
(9) Any other term, condition, or privilege of employment.
(d) A recipient shall not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this subpart.
The relationships referred to in this paragraph include relationships
with employment and referral agencies, with labor unions, with
organizations providing or administering fringe benefits to employees of
the recipient, and with organizations providing training and
apprenticeships.
(e) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program or activity.
(f) A recipient shall not use employment tests or criteria that
discriminate against handicapped persons and shall ensure that
employment tests are adapted for use by persons who have handicaps that
impair sensory, manual, or speaking skills.
(g) A recipient shall not conduct a preemployment medical
examination or make a preemployment inquiry as to whether an applicant
is a handicapped person or as to the nature or severity of a handicap
except as permitted by the Department of Justice in 28 CFR 42.513.
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
[[Page 144]]
Sec. 7.65 Accessibility.
(a) General. A recipient shall operate each program or activity
receiving EPA assistance so that when each part is viewed in its
entirety it is readily accessible to and usable by handicapped persons.
This paragraph does not:
(1) Necessarily require a recipient to make each of its existing
facilities or every part of an existing facility accessible to and
usable by handicapped persons.
(2) Require a recipient to take any action that the recipient can
demonstrate would result in a fundamental alteration in the nature of
its program or activity or in undue financial and administrative
burdens. If an action would result in such an alternation or such
financial and administrative burdens, the recipient shall be required to
take any other action that would not result in such an alteration or
financial and administrative burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity receiving EPA assistance.
(b) Methods of ensuring compliance in existing facilities. A
recipient may comply with the accessibility requirements of this section
by making structural changes, redesigning equipment, reassigning
services to accessible buildings, assigning aides to beneficiaries, or
any other means that make its program or activity accessible to
handicapped persons. In choosing among alternatives, a recipient must
give priority to methods that serve handicapped persons in the most
integrated setting appropriate.
(c) Deadlines. (1) Except where structural changes in facilities are
necessary, recipients must adhere to the provisions of this section
within 60 days after the effective date of this part.
(2) Recipients having an existing facility which does require
alterations in order to comply with paragraph (a) of this section must
prepare a transition plan in accordance with Sec. 7.75 within six
months from the effective date of this part. The recipient must complete
the changes as soon as possible, but not later than three years from
date of award.
(d) Notice of accessibility. The recipient must make sure that
interested persons, including those with impaired vision or hearing, can
find out about the existence and location of the services, activities,
and facilities that are accessible to and usable by handicapped persons.
(e) Structural and financial feasibility. This section does not
require structural alterations to existing facilities if making such
alterations would not be structurally or financially feasible. An
alteration is not structurally feasible when it has little likelihood of
being accomplished without removing or altering a load-bearing
structural member. Financial feasibility shall take into account the
degree to which the alteration work is to be assisted by EPA assistance,
the cost limitations of the statute under which such assistance is
provided, and the relative cost of accomplishing such alterations in
manners consistent and inconsistent with accessibility.
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 7.70 New construction.
(a) General. New facilities shall be designed and constructed to be
readily accessible to and usable by handicapped persons. Alterations to
existing facilities shall, to the maximum extent feasible, be designed
and constructed to be readily accessible to and usable by handicapped
persons.
(b) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of January 18, 1991, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their
[[Page 145]]
intended use, will not require accessibility to the public or
beneficiaries or result in the employment or residence therein of
persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[49 FR 1659, Jan. 12, 1984, as amended at 55 FR 52138, 52142, Dec. 19,
1990]
Sec. 7.75 Transition plan.
If structural changes to facilities are necessary to make the
program or activity accessible to handicapped persons, a recipient must
prepare a transition plan.
(a) Requirements. The transition plan must set forth the steps
needed to complete the structural changes required and must be developed
with the assistance of interested persons, including handicapped persons
or organizations representing handicapped persons. At a minimum, the
transition plan must:
(1) Identify the physical obstacles in the recipient's facilities
that limit handicapped persons' access to its program or activity,
(2) Describe in detail what the recipient will do to make the
facilities accessible,
(3) Specify the schedule for the steps needed to achieve full
accessibility under Sec. 7.65(a), and include a year-by-year timetable
if the process will take more than one year,
(4) Indicate the person responsible for carrying out the plan.
(b) Availability. Recipients shall make available a copy of the
transition plan to the OCR upon request and to the public for inspection
at either the site of the project or at the recipient's main office.
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
Subpart D_Requirements for Applicants and Recipients
Sec. 7.80 Applicants.
(a) Assurances--(1) General. Applicants for EPA assistance shall
submit an assurance with their applications stating that, with respect
to their programs or activities that receive EPA assistance, they will
comply with the requirements of this part. Applicants must also submit
any other information that the OCR determines is necessary for preaward
review. The applicant's acceptance of EPA assistance is an acceptance of
the obligation of this assurance and this part.
(2) Duration of assurance--(i) Real property. When EPA awards
assistance in the form of real property, or assistance to acquire real
property, or structures on the property, the assurance will obligate the
recipient, or transferee, during the period the real property or
structures are used for the purpose for which EPA assistance is
extended, or for another purpose in which similar services or benefits
are provided. The transfer instrument shall contain a covenant running
with the land which assures nondiscrimination. Where applicable, the
covenant shall also retain a right of reverter which will permit EPA to
recover the property if the covenant is ever broken.
(ii) Personal property. When EPA provides assistance in the form of
personal property, the assurance will obligate the recipient for so long
as it continues to own or possess the property.
(iii) Other forms of assistance. In all other cases, the assurance
will obligate the recipient for as long as EPA assistance is extended.
(b) Wastewater treatment project. EPA Form 4700-4 shall also be
submitted with applications for assistance under Title II of the Federal
Water Pollution Control Act.
(c) Compliance information. Each applicant for EPA assistance shall
submit regarding the program or activity that would receive EPA
assistance:
(1) Notice of any lawsuit pending against the applicant alleging
discrimination on the basis of race, color, sex, handicap, or national
origin;
(2) A brief description of any applications pending to other Federal
agencies for assistance, and of Federal assistance being provided at the
time of the application; and
(3) A statement describing any civil rights compliance reviews
regarding the applicant conducted during the two-year period before the
application, and information concerning the agency
[[Page 146]]
or organization performing the reviews.
(Approved by the Office of Management and Budget under control number
2000-0006)
Sec. 7.85 Recipients.
(a) Compliance information. Each recipient shall collect, maintain,
and on request of the OCR, provide the following information to show
compliance with this part:
(1) A brief description of any lawsuits pending against the
recipient that allege discrimination which this part prohibits;
(2) Racial/ethnic, national origin, sex and handicap data, or EPA
Form 4700-4 information submitted with its application;
(3) A log of discrimination complaints which identifies the
complaint, the date it was filed, the date the recipient's investigation
was completed, the disposition, and the date of disposition; and
(4) Reports of any compliance reviews conducted by any other
agencies.
(b) Additional compliance information. If necessary, the OCR may
require recipients to submit data and information specific to certain
programs or activities to determine compliance where there is reason to
believe that discrimination may exist in a program or activity receiving
EPA assistance or to investigate a complaint alleging discrimination in
a program or activity receiving EPA assistance. Requests shall be
limited to data and information which is relevant to determining
compliance and shall be accompanied by a written statement summarizing
the complaint or setting forth the basis for the belief that
discrimination may exist.
(c) Self-evaluation. Each recipient must conduct a self-evaluation
of its administrative policies and practices, to consider whether such
policies and practices may involve handicap discrimination prohibited by
this part. When conducting the self-evaluation, the recipient shall
consult with interested and involved persons including handicapped
persons or organizations representing handicapped persons. The
evaluation shall be completed within 18 months after the effective date
of this part.
(d) Preparing compliance information. In preparing compliance
information, a recipient must:
(1) [Reserved]
(2) Use the racial classifications set forth in Sec. 7.25 in
determining categories of race, color or national origin.
(e) Maintaining compliance information. Recipients must keep records
for paragraphs (a) and (b) of this section for three (3) years after
completing the project. When any complaint or other action for alleged
failure to comply with this part is brought before the three-year period
ends, the recipient shall keep records until the complaint is resolved.
(f) Accessibility to compliance information. A recipient shall:
(1) Give the OCR access during normal business hours to its books,
records, accounts and other sources of information, including its
facilities, as may be pertinent to ascertain compliance with this part;
(2) Make compliance information available to the public upon
request; and
(3) Assist in obtaining other required information that is in the
possession of other agencies, institutions, or persons not under the
recipient's control. If such party refuses to release that information,
the recipient shall inform the OCR and explain its efforts to obtain the
information.
(g) Coordination of compliance effort. If the recipient employs
fifteen (15) or more employees, it shall designate at least one person
to coordinate its efforts to comply with its obligations under this
part.
(Approved by the Office of Management and Budget under control number
2000-0006)
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 7.90 Grievance procedures.
(a) Requirements. Each recipient shall adopt grievance procedures
that assure the prompt and fair resolution of complaints which allege
violation of this part.
(b) Exception. Recipients with fewer than fifteen (15) full-time
employees need not comply with this section unless the OCR finds a
violation of this part or determines that creating a
[[Page 147]]
grievance procedure will not significantly impair the recipient's
ability to provide benefits or services.
Sec. 7.95 Notice of nondiscrimination.
(a) Requirements. A recipient shall provide initial and continuing
notice that it does not discriminate on the basis of race, color,
national origin, or handicap in a program or activity receiving EPA
assistance or, in programs or activities covered by section 13, on the
basis of sex. Methods of notice must accommodate those with impaired
vision or hearing. At a minimum, this notice must be posted in a
prominent place in the recipient's offices or facilities. Methods of
notice may also include publishing in newspapers and magazines, and
placing notices in recipient's internal publications or on recipient's
printed letterhead. Where appropriate, such notice must be in a language
or languages other than English. The notice must identify the
responsible employee designated in accordance with Sec. 7.85.
(b) Deadline. Recipients of assistance must provide initial notice
by thirty (30) calendar days after award and continuing notice for the
duration of EPA assistance.
[49 FR 1659, Jan. 12, 1984, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 7.100 Intimidation and retaliation prohibited.
No applicant, recipient, nor other person shall intimidate,
threaten, coerce, or discriminate against any individual or group,
either:
(a) For the purpose of interfering with any right or privilege
guaranteed by the Acts or this part, or
(b) Because the individual has filed a complaint or has testified,
assisted or participated in any way in an investigation, proceeding or
hearing under this part, or has opposed any practice made unlawful by
this regulation.