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Rule2025-00960

Freedom of Information Act and Privacy Act Regulations

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Published

January 21, 2025

Effective

February 20, 2025

Issuing agencies

Council on Environmental Quality

Abstract

The Council on Environmental Quality (CEQ) is finalizing its Freedom of Information Act (FOIA) regulations to incorporate amendments to the FOIA set forth in the FOIA Improvement Act of 2016; to conform to guidance for Federal agencies from the Department of Justice; to make them easier for the public to understand and use; and to better reflect CEQ's current policy and practice. These final regulations reaffirm CEQ's commitment to providing the fullest possible disclosure of records to the public. In addition, CEQ is amending its regulations implementing the Privacy Act of 1974 (the Privacy Act) to make them easier for the public to understand and use and to better reflect CEQ's current policy and practice. These final regulations also make administrative changes, including reorganizing, renumbering, and renaming the sections of CEQ's current FOIA and Privacy Act regulations. CEQ considered all of the public comments received on its proposed rule and made changes in response in this final rule.

Full Text

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<title>Federal Register, Volume 90 Issue 12 (Tuesday, January 21, 2025)</title>
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[Federal Register Volume 90, Number 12 (Tuesday, January 21, 2025)]
[Rules and Regulations]
[Pages 6828-6839]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00960]

[[Page 6828]]

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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Parts 1515 and 1516

[CEQ-2024-0001]
RIN 0331-AA02

Freedom of Information Act and Privacy Act Regulations

AGENCY: Council on Environmental Quality.

ACTION: Final rule.

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SUMMARY: The Council on Environmental Quality (CEQ) is finalizing its
Freedom of Information Act (FOIA) regulations to incorporate amendments
to the FOIA set forth in the FOIA Improvement Act of 2016; to conform
to guidance for Federal agencies from the Department of Justice; to
make them easier for the public to understand and use; and to better
reflect CEQ's current policy and practice. These final regulations
reaffirm CEQ's commitment to providing the fullest possible disclosure
of records to the public. In addition, CEQ is amending its regulations
implementing the Privacy Act of 1974 (the Privacy Act) to make them
easier for the public to understand and use and to better reflect CEQ's
current policy and practice. These final regulations also make
administrative changes, including reorganizing, renumbering, and
renaming the sections of CEQ's current FOIA and Privacy Act
regulations. CEQ considered all of the public comments received on its
proposed rule and made changes in response in this final rule.

DATES: The effective date is February 20, 2025.

ADDRESSES: CEQ established a docket for this action on
<a href="http://www.regulations.gov">www.regulations.gov</a>, under docket number CEQ-2024-0001. The docket
contains all of the public comments that CEQ received on this action.

FOR FURTHER INFORMATION CONTACT: Samuel Roth, Associate General
Counsel, 202-395-5750, <a href="/cdn-cgi/l/email-protection#efbc8e829a8a83c1aac1bd809b87af8c8a9ec18a809fc1888099">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

I. Background

A. The FOIA

The FOIA, 5 U.S.C. 552, provides a right of access to certain
records that Federal agencies maintain and control. The FOIA directs
each Federal agency to publish regulations that describe how the agency
will process FOIA requests it receives from members of the public.
CEQ first adopted its FOIA regulations in 1977.\1\ In 2010, CEQ
amended its regulations to reflect legislative amendments to the FOIA,
a 2009 Presidential Memorandum regarding FOIA policy, and additional
guidance from the Department of Justice (DOJ) and the Office of
Management and Budget (OMB).\2\ CEQ's current FOIA regulations are
codified at 40 CFR part 1515.
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\1\ CEQ, Freedom of Information Act Procedures; Final Rule, 42
FR 65158 (Dec. 30, 1977).
\2\ CEQ, Revision of Freedom of Information Act Regulations, 75
FR 48585 (Sept. 10, 2010).
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CEQ is revising and republishing its FOIA regulations in their
entirety in order to make several improvements to the current rules.
First, CEQ is making updates to reflect a number of important changes
to the FOIA made by the FOIA Improvement Act of 2016 (Pub. L. 114-185).
Section 3(a) of the Act directs each agency to review its FOIA
regulations and update them to implement the changes set forth in the
Act. Second, CEQ is including a number of provisions to improve the
usefulness and readability of its FOIA regulations consistent with
DOJ's 2017 revised Template for Agency Regulations (the Template).\3\
CEQ modeled this final rule on the Template, which also incorporates
the FOIA Improvement Act of 2016's amendments to the FOIA.
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\3\ Template for Agency FOIA Regulations (February 22, 2017),
<a href="https://www.justice.gov/oip/template-agency-foia-regulations">https://www.justice.gov/oip/template-agency-foia-regulations</a>.
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Third, CEQ is making updates to better convey the FOIA's and the
CEQ regulation's requirements to members of the public who are
interested in CEQ's operations and activities, so they can easily
understand and use CEQ's FOIA process.\4\ Specifically, CEQ referred to
the Plain Writing Act of 2010 and the Federal Plain Language Guidelines
\5\ in preparing the final rule.
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\4\ See, e.g., E.O. 13563, Improving Regulation and Regulatory
Review, 76 FR 3821 (Jan. 21, 2011) (stating that ``regulations [must
be] accessible, consistent, written in plain language, and easy to
understand'').
\5\ Federal Plain Language Guidelines (1st rev. May 2011),
<a href="https://www.plainlanguage.gov/media/FederalPLGuidelines.pdf">https://www.plainlanguage.gov/media/FederalPLGuidelines.pdf</a>.
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Finally, the final rule reflects updates to CEQ's FOIA policies and
procedures, as well as the practical experience of CEQ's FOIA staff. As
it does under its current regulations, CEQ will administer the FOIA
under the final regulations with a presumption of openness, consistent
with the Memorandum of the Attorney General dated March 15, 2022.\6\
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\6\ Department of Justice, Freedom of Information Act Guidelines
(March 15, 2022), <a href="https://www.justice.gov/media/1212566/dl">https://www.justice.gov/media/1212566/dl</a>.
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B. The Privacy Act

The Privacy Act, 5 U.S.C. 552a, governs each Federal agency's
collection, maintenance, use, and dissemination of any information
about individuals that it maintains in a system of records. The Privacy
Act directs each Federal agency to publish regulations that describe
the agency's procedures for carrying out the provisions of the Privacy
Act. CEQ first adopted its Privacy Act regulations in 1977,\7\ codified
at 40 CFR part 1516.
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\7\ CEQ, Procedures for Gaining Access to Information Under the
Privacy Act of 1974; Final Regulations, 42 FR 32537 (June 27, 1977);
see also Procedures for Gaining Access to Information Under the
Privacy Act of 1974, Correction to Final Regulations, 42 FR 35960
(July 13, 1977) (technical amendment).
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CEQ is revising and republishing its Privacy Act regulation in its
entirety to make it easier for the public to understand and use and to
reflect updates to CEQ's Privacy Act procedures over the past five
decades.

II. Discussion of Comments on the Notice of Proposed Rulemaking

On December 11, 2024, CEQ published a notice of proposed rulemaking
for public comment.\8\ The public comment period concluded on January
10, 2025. Two commenters provided input on the proposal during the
public comment period. As noted above, their comments are available on
<a href="http://www.regulations.gov">www.regulations.gov</a> under docket number CEQ-2024-0001.
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\8\ CEQ, Freedom of Information Act and Privacy Act Regulations,
89 FR 99799 (Dec. 11, 2024).
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Comment 1: One commenter recommended that CEQ explicitly
incorporate the ``presumption of openness'' in its FOIA regulations.
The presumption of openness, which Congress codified in the FOIA
through the FOIA Improvement Act of 2016, directs agencies to withhold
information in response to a FOIA request ``only if . . . the agency
reasonably foresees that disclosure would harm an interest protected by
an exemption [under the FOIA],'' or disclosure is prohibited by law. 5
U.S.C. 552(a)(8)(A). As the Memorandum of the Attorney General dated
March 15, 2022, explains, the presumption means that ``[i]nformation
that might technically fall within an exemption should not be withheld
from a FOIA requester unless the agency can identify a foreseeable harm
or legal bar to disclosure.'' \9\
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\9\ Department of Justice, Freedom of Information Act Guidelines
(Mar. 15, 2022), <a href="https://www.justice.gov/media/1212566/dl">https://www.justice.gov/media/1212566/dl</a>.
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As CEQ noted in the preamble to the proposed rule, CEQ currently
administers its FOIA program consistent

[[Page 6829]]

with the presumption of openness and will continue to do so under its
revised regulations. CEQ has revised the language of Sec. 1515.16(b)
to clarify that it applies the presumption of openness in its FOIA
program.
Comment 2: One commenter recommended that CEQ revise Sec. 1515.4
to clarify that, when a FOIA requester submits an appeal, a CEQ
official other than the one who was responsible for processing the
original request will process the appeal. The commenter observed that
the Department of Justice's Office of Information Policy, which
provides guidance to agencies on FOIA administration, recommends this
practice.\10\ Consistent with this recommendation, the commenter
recommended that CEQ delete the last sentence of Sec. 1515.4(b)
(``Otherwise, the Chief FOIA Officer or the Chief FOIA Officer's
designee is responsible for processing FOIA appeals.'').
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\10\ Department of Justice, OIP Guidance: Adjudicating
Administrative Appeals Under the FOIA (Aug. 12, 2021), <a href="https://www.justice.gov/oip/oip-guidance/Adjudicating%20Administrative%20Appeals%20Under%20the%20FOIA">https://www.justice.gov/oip/oip-guidance/Adjudicating%20Administrative%20Appeals%20Under%20the%20FOIA</a>.
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CEQ agrees with the commenter that it is good practice to assign
the processing of a FOIA appeal to a different official than the one
who was responsible for processing the original FOIA request. CEQ
routinely follows this practice in its administration of the FOIA. CEQ
is a small agency, however, whose size varies widely from one
Presidential Administration to the next. From time to time, it may not
be reasonably possible to assign a FOIA appeal to a different official
than the one who reviewed the original request, if CEQ lacks sufficient
personnel with FOIA expertise. Accordingly, CEQ has inserted a sentence
in Sec. 1515.22(b) to explain that, whenever reasonably practicable,
CEQ will assign the processing of a FOIA appeal to a different official
than the one who was responsible for processing the original request.
Comment 3: One commenter recommended that CEQ modify Sec. 1515.11
and proposed Sec. 1515.20 to change the requirement to include the
phrase ``Freedom of Information Act Request'' in the subject line of a
request (or ``Freedom of Information Act Appeal'' in the subject line
of an appeal, as the case may be) into a recommendation.
CEQ agrees with the commenter that the FOIA statute does not impose
this requirement. CEQ regularly receives correspondence, however, that
is unclear about whether the sender is making a request for records or
seeking some other kind of official action. CEQ has changed the
language of Sec. Sec. 1515.11 and 1515.21 to provide that FOIA
requests and appeals must clearly identify themselves as such, and
encourage, but do not require them to use the phrase ``Freedom of
Information Act Request'' or ``Freedom of Information Act Appeal.''
Comment 4: One commenter recommended that CEQ change Sec.
1515.19(a)(4) to refer to ``records,'' rather than ``information,'' for
consistency with the FOIA statute. CEQ has made this change.

III. Summary of the Final Rules

A. Part 1515--Freedom of Information Act Procedures

1. Subpart A--The Council on Environmental Quality's FOIA Program
Section 1515.1--What is the purpose of the rules in this part? This
section describes the purpose of part 1515, which is to set forth CEQ's
FOIA procedures, and explains the limitations of the regulations.
Section 1515.2--What kind of records does CEQ maintain? This
section explains CEQ's activities and legal authorities.
Section 1515.3--Are there any CEQ records that CEQ proactively
discloses and for which I do not have to make a request? This section
describes CEQ information the public can access without filing a FOIA
request. In the final rule, CEQ uses the term ``proactive disclose'' in
the title and provision to improve clarity.
Section 1515.4--Who is responsible for processing FOIA requests and
appeals to CEQ? This section explains the roles of Chief FOIA Officer
and FOIA Appeals Officer at CEQ.
Section 1515.5--Who can help me with my FOIA request to CEQ? This
section explains that FOIA requesters can obtain assistance from CEQ's
FOIA Public Liaison and dispute resolution services from the National
Archives and Records Administration's Office of Government Information
Services. In the final rule, CEQ clarifies in Sec. 1515.5(b) that CEQ
will actively engage when CEQ agrees to participate in the voluntary
dispute resolution services consistent with the Template.
Section 1515.6--What are CEQ's procedures for preserving records?
This section explains CEQ's procedures for preserving records in
connection with its administration of the FOIA.
2. Subpart B--Making a FOIA Request and Receiving a Response
Section 1515.11--How do I make a FOIA request to CEQ? This section
explains how members of the public may request CEQ records under the
FOIA. It also describes CEQ's procedures for clarifying requests that
do not reasonably describe the records that the requester is seeking.
Section 1515.12--Will CEQ keep my request confidential? This
section notes that FOIA requests and the identities of FOIA requesters
are generally matters of public record. In the final rule, CEQ adds
``generally'' in the second sentence, for consistency with the third
sentence, to account for certain circumstances where CEQ determines it
appropriate to withhold a requester's identity.
Section 1515.13--When will CEQ respond to my request? This section
describes CEQ's timeline for responding to FOIA requests, including
circumstances in which CEQ will extend or pause the ordinary time
period for processing FOIA requests. In the final rule, CEQ adds to the
explanation of ``unusual circumstances'' in Sec. 1515.13(b)(1) the
need to search separate facilities consistent with 5 U.C.C.
552(a)(6)(B)(iii)(I), and adds the term ``aggregate'' for clarity in
Sec. 1515.13(b)(2).
Section 1515.14--What if my request is urgent? This section
explains how to ask CEQ to expedite its processing of a FOIA request or
appeal.
Section 1515.15--How will CEQ process my request? This section
describes CEQ's procedures for processing requests and circumstances in
which CEQ will deny requests. In the final rule, in Sec.
1515.13(b)(3), CEQ changes ``will include'' to ``may include'' before
``CEQ's estimate of the date on which we will respond to your
request.'' CEQ makes this change because FOIA does not require CEQ to
provide such a date, but CEQ considers it a best practice to provide an
estimate when it is able to do so.
Section 1515.16--How does CEQ determine when to withhold records or
portions of a record? This section describes CEQ's procedures for
applying the statutory exemptions from disclosure set forth in the
FOIA.
Section 1515.17--What if I request records that involve another
Government office or agency? This section describes CEQ's procedures
for consulting with other Federal agencies regarding whether to
disclose or withhold particular records in response to a FOIA request,
as well as CEQ's procedures for referring records to another agency for
processing.
Section 1515.18--What happens if CEQ grants my request in full or
in part? This section describes CEQ's procedure for disclosing records
in response to a FOIA request.

[[Page 6830]]

Section 1515.19--What happens if CEQ denies my request in full or
in part? This section describes CEQ's procedure for withholding records
in response to a FOIA request.
3. Subpart C--Appealing a FOIA Request
In the final rule, CEQ revised the numbering from the proposed rule
to start with Sec. 1515.21 instead of Sec. 1515.20.
Section 1515.21--Can I appeal CEQ's response to my request? This
section describes how a FOIA requester may appeal a determination that
CEQ made in processing the requester's request.
Section 1515.22--How will CEQ process my appeal? This section
describes CEQ's procedures for upholding, reversing, or modifying a
prior determination on appeal. In the final rule, CEQ adds paragraph
(e), to clarify that ordinarily, it will not adjudicate an appeal if
the request becomes the subject of litigation.
4. Subpart D--Fees for FOIA Requests and Appeals
Section 1515.31--Can CEQ charge fees for processing FOIA requests
and appeals? This section explains that CEQ charges fees for processing
FOIA requests, but not appeals, and describes the rules that CEQ will
follow in determining whether to charge a fee and the amount of the
fee. As in CEQ's current FOIA regulation, the provisions of this
section and the subsequent sections reflect OMB's Uniform Freedom of
Information Act Fee Schedule and Guidelines.
Section 1515.32--What is the amount of the fee for processing a
request? This section describes how CEQ will determine the amount of
the fee for processing a FOIA request.
Section 1515.33--Are there any exceptions for special requesters?
This section describes the services that CEQ will exclude from the
calculation of fees for non-commercial requesters, in general, and for
representatives of non-commercial scientific institutions, educational
institutions, and the news media, in particular.
Section 1515.34--Can I apply for a fee waiver? This section
describes the availability of fee waivers and explains the criteria CEQ
will apply in determining whether to grant a fee waiver.
Section 1515.35--When will CEQ contact me about fee-related
matters? This section describes CEQ's procedures for contacting FOIA
requesters to resolve fee-related matters.
Section 1515.36--Do I have to pay fees if CEQ misses the deadline
for responding to my request? This section describes the circumstances
in which CEQ will not charge fees for processing a FOIA request because
CEQ did not respond to the request within the time period set forth in
the FOIA.
Section 1515.37--When are fees due and how do I pay them? This
section describes when and how FOIA requesters must pay fees to CEQ,
including the circumstances in which CEQ may require a FOIA requester
to pay fees in advance.
Section 1515.38--What will CEQ do if I do not promptly pay the fee?
This section explains when CEQ will charge interest and use debt
collection procedures.
5. Subpart E--Confidential Commercial Information and Preservation of
Records
Section 1515.41--How does CEQ handle confidential commercial
information? This section implements the requirements of Executive
Order (E.O.) 12600, Predisclosure Notification Procedures for
Confidential Commercial Information,\11\ which directs Federal agencies
to allow submitters of information to designate records that contain
confidential commercial information and to notify submitters when a
FOIA requester seeks disclosure of confidential commercial information.
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\11\ 52 FR 23781 (June 25, 1987).
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B. Part 1516--Privacy Act Implementation

Section 1516.1--What is the purpose of this part? This section
describes the purpose of part 1516, which is to set forth CEQ's Privacy
Act procedures.
Section 1516.2--What records does this part cover? This section
explains when part 1516 applies and explains the meaning of ``record''
and ``system of records'' for purposes of part 1516.
Section 1516.3--When will CEQ disclose records about me? This
section describes the conditions under which CEQ will disclose records,
which are (1) in response to an individual's request for the
individual's own records; (2) as part of a routine use of records; or
(3) pursuant to one of the other bases for disclosure that appear in
section 3 of the Privacy Act, 5 U.S.C. 552a(b).
Section 1516.4--How can I obtain access to CEQ's records about me?
This section describes the procedures for an individual to request
access to the individual's own records.
Section 1516.5--How can I obtain information about how CEQ has used
its records about me? This section describes the procedures for an
individual to request an accounting of disclosures of the individual's
own records.
Section 1516.6--How can I ask CEQ to correct my records? This
section describes the procedures for an individual to request an
amendment of the individual's own records and explains how CEQ will
review such a request.
Section 1516.7--How can I appeal CEQ's decision to deny my request
to access or correct records about me? This section describes the
procedures for an individual to appeal CEQ's denial of the individual's
request to amend the individual's own records.
Section 1516.8--Will CEQ charge me a fee for a copy of my records?
This section describes the fees CEQ will charge for copies of records.

IV. Regulatory Analysis and Notices

A. Regulatory Flexibility Act and Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking

The Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601 et
seq., and E.O. 13272, Proper Consideration of Small Entities in Agency
Rulemaking,\12\ require agencies to assess the impacts of proposed and
final rules on small entities. Under the RFA, small entities include
small businesses, small organizations, and small governmental
jurisdictions. An agency must prepare an Initial Regulatory Flexibility
Analysis (IRFA) unless it determines and certifies that the rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities. 5 U.S.C. 605(b). The FOIA
authorizes Federal agencies to charge fees only to certain requesters,
and only in order to recover the direct costs of searching for,
reviewing, and duplicating agency records. Under the final rule, CEQ
will continue to charge fees in accordance with the FOIA and guidelines
from DOJ and OMB. The Privacy Act authorizes Federal agencies to charge
fees only to individuals, and accordingly CEQ will not charge fees
under the Privacy Act to small entities within the meaning of the RFA.
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\12\ 67 FR 53461 (Aug. 16, 2002).
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The fees that CEQ assesses for processing FOIA requests are nominal
and will not have a significant impact on a substantial number of small
entities within the meaning of the RFA. Accordingly, CEQ hereby
certifies that the rule will not have a significant economic impact on
a substantial number of small entities.

B. Unfunded Mandates Reform Act

Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L.

[[Page 6831]]

104-4, 2 U.S.C. 1531), requires Federal agencies to assess the effects
of their regulatory actions on State, Tribal, and local governments,
and the private sector to the extent that such regulations incorporate
requirements specifically set forth in law. Before promulgating a rule
that may result in the expenditure by a State, Tribal, or local
government, in the aggregate, or by the private sector of $100 million,
adjusted annually for inflation, in any 1 year, an agency must prepare
a written statement that assesses the effects on State, Tribal, and
local governments and the private sector. 2 U.S.C. 1532. This final
rule will apply only to requesters under the FOIA or the Privacy Act
and will not result in expenditures of $100 million or more for State,
Tribal, and local governments, in the aggregate, or the private sector
in any 1 year. This final action also will not impose any enforceable
duty, contain any unfunded mandate, or otherwise have any effect on
small governments subject to the requirements of 2 U.S.C. 1531-1538.

C. Executive Order 12866, Regulatory Planning and Review

E.O. 12866, as supplemented and affirmed by E.O. 13563 and amended
by E.O. 14094, provides that the Office of Information and Regulatory
Affairs will review any regulatory action that qualifies as a
``significant regulatory action'' within the meaning of the E.O.\13\
The final rule does not qualify as a significant regulatory action.
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\13\ See E.O. 12866, Regulatory Planning and Review, 58 FR
51735, 51737 (Oct. 4, 1993); E.O. 14094, Modernizing Regulatory
Review, 88 FR 21879, 21879-80 (Apr. 11, 2023); E.O. 13563, Improving
Regulation and Regulatory Review, 76 FR 3821, 3822 (Jan. 21, 2011).
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D. Executive Order 12988, Civil Justice Reform

Under section 3(a) of E.O. 12988,\14\ agencies must review their
proposed regulations to eliminate drafting errors and ambiguities,
draft them to minimize litigation, and provide a clear legal standard
for affected conduct. Section 3(b) provides a list of specific matters
that agencies must consider when conducting the review required by
section 3(a). CEQ has conducted this review and determined that this
final rule complies with the requirements of E.O. 12988.
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\14\ 61 FR 4729 (Feb. 7, 1996).
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E. Paperwork Reduction Act

This final rule will not impose any new information collection
burden that will require additional review or approval by OMB under the
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.

F. National Environmental Policy Act (NEPA)

The National Environmental Policy Act of 1969 (NEPA) (Pub. L. 118-
5, 42 U.S.C. 4321 et seq.), as amended, and the CEQ regulations that
implement NEPA, 40 CFR parts 1500 through 1508, require consideration
of the environmental effects of proposed actions in agency decision
making. NEPA provides for three levels of review. First, agencies may
establish in their agency-specific NEPA procedures categorical
exclusions (CEs) for categories of actions that normally do not have a
significant effect on the human environment, individually or in the
aggregate, and apply CEs to individual actions, as appropriate.\15\ If
an agency proposes to take an action that does not fall within a CE but
is not likely to have significant environmental effects (or the
significance of whose effects is unknown), CEQ's NEPA regulations
direct the agency to prepare an environmental assessment (EA).\16\ If,
as a result of this assessment, the agency determines that the proposed
action will not have significant effects, the agency may make a finding
of no significant impact (FONSI), in which case the agency may proceed
with the action.\17\ Otherwise, the agency must prepare an
environmental impact statement (EIS).\18\
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\15\ 40 CFR 1501.4(a).
\16\ Id. Sec. 1501.5(a).
\17\ Id. Sec. 1501.6.
\18\ 40 CFR part 1502.
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CEQ has not established a CE for the dissemination of information
under the FOIA; the disclosure of records under the Privacy Act; or the
preparation, revision, and adoption of regulations generally.
Accordingly, CEQ prepared an EA to determine whether the revisions to
CEQ's FOIA and Privacy Act regulations would have a significant effect
on the human environment. Because, as set forth below, the final
regulations will likely result in a small reduction in the use of
resources in CEQ's administration of the FOIA and the Privacy Act, CEQ
finds that the final rule will have no significant impact on the human
environment and that it is therefore unnecessary to prepare an EIS.
1. Environmental Assessment
Purpose and Need: As set forth in the proposed rule and the above
Summary of the Final Rule, CEQ adopted its FOIA regulations in 1977 and
has not updated them to reflect developments in FOIA law, policy, and
practice since 2010. As such, the current regulations fail to reflect
current FOIA requirements, including those set forth in the FOIA
Improvement Act of 2016. Furthermore, CEQ's current FOIA regulations do
not conform in all points to the Template and the directions in the
Plain Writing Act of 2010, and do not fully reflect CEQ's current
policy and practice with respect to the FOIA. Likewise, CEQ adopted its
Privacy Act regulations in 1977, and has not updated them since that
time to reflect updates to CEQ's Privacy Act procedures.
Proposed Action and Alternatives: A summary of the final action,
which is one of two action alternatives analyzed in this EA, is set
forth in the NPRM and in the above Summary of the Final Rule. Under a
no action alternative, CEQ would continue to operate under its current
regulations, addressing inconsistencies between the regulations and
current law and agency procedure on a case-by-case basis. CEQ has
decided that this approach is undesirable because it is confusing to
the public and requires CEQ staff to address inconsistencies between
the regulation, the law, and agency procedure that CEQ can obviate by
updating the regulation.
CEQ considered another action alternative of making only narrowly
tailored amendments to its current FOIA regulations in order to
implement the FOIA Improvement Act of 2016. While this alternative
would eliminate direct inconsistencies between CEQ's regulations and
the FOIA, it would not address inconsistencies between CEQ's FOIA
regulations, the Template and CEQ's FOIA policies and procedures, or
inconsistencies between CEQ's Privacy Act regulations and CEQ's
practice in implementing the Privacy Act.
CEQ's preferred alternative is to amend its regulations as
described in the proposed rule and this final rule, for the reasons set
forth in parts I through III of this preamble.
Environmental Effects of Alternatives: CEQ's FOIA and Privacy Act
programs affect the environment primarily through requesters' use of
paper and energy in submitting requests and CEQ's use of paper and
energy in searching for, reviewing, and duplicating responsive records.
CEQ's use of paper and energy for these purposes has remained within
the range typical of the operations of a small office. Currently, CEQ
accepts FOIA and Privacy Act requests by mail and fax, which require
the use of paper and energy to print and transmit requests to CEQ. The
final regulations will direct FOIA and Privacy Act requesters to submit
their requests electronically if they are able to do so, thereby
reducing the use of paper and

[[Page 6832]]

energy associated with mailed and faxed requests. CEQ receives requests
by fax or mail infrequently, however, so any reduction in the use of
resources is likely to be modest. In addition, by improving the
public's timely access to information contained in CEQ records, the
final regulations support the meaningful involvement of all
communities, including communities with environmental justice concerns,
in Federal decision-making processes.
List of Agencies and Persons Consulted: CEQ's NEPA staff reviewed
and commented on this EA, the proposed rule, and this final rule.
2. Finding of No Significant Impact
Based on the foregoing EA, CEQ finds that implementation of the
final regulations will reduce the use of paper and energy resources in
CEQ's FOIA and Privacy Act programs, streamline CEQ's FOIA and Privacy
Act procedures, make CEQ more accessible and responsive to the public,
and improve the opportunity for all communities to access information
and be meaningfully involved in Federal decision-making processes.
Thus, there will be no significant environmental effects associated
with implementation of the proposed action, and it is not necessary for
CEQ to prepare an EIS.
CEQ further finds that the final action is not one that normally
requires the preparation of an EIS, closely similar to such an action,
or an action without precedent.

List of Subjects

40 CFR Part 1515

Administrative practice and procedures, Courts, Freedom of
information, Government employees, Records.

40 CFR Part 1516

Administrative practice and procedures, Courts, Government
employees, Privacy, Records.

Amy B. Coyle,
Principal Deputy General Counsel.

0
For the reasons discussed in the preamble, the Council on Environmental
Quality revises and republishes 40 CFR parts 1515 and 1516 to read as
follows:

PART 1515--FREEDOM OF INFORMATION ACT PROCEDURES

Subpart A--The Council on Environmental Quality's FOIA Program

Sec.
1515.1 What is the purpose of the rules in this part?
1515.2 What kind of records does CEQ maintain?
1515.3 Are there any CEQ records that CEQ proactively discloses and
for which I do not have to make a request?
1515.4 Who is responsible for processing FOIA requests and appeals
to CEQ?
1515.5 Who can help me with my FOIA request to CEQ?
1515.6 What are CEQ's procedures for preserving records?

Subpart B--Making a FOIA Request and Receiving a Response

Sec.
1515.11 How do I make a FOIA request to CEQ?
1515.12 Will CEQ keep my request confidential?
1515.13 When will CEQ respond to my request?
1515.14 What if my request is urgent?
1515.15 How will CEQ process my request?
1515.16 How does CEQ determine when to withhold records or portions
of a record?
1515.17 What if I request records that involve another Government
office or agency?
1515.18 What happens if CEQ grants my request in full or in part?
1515.19 What happens if CEQ denies my request in full or in part?

Subpart C--Appealing a FOIA Request

Sec.
1515.21 Can I appeal CEQ's response to my request?
1515.22 How will CEQ process my appeal?

Subpart D--Fees for FOIA Requests and Appeals

Sec.
1515.31 Can CEQ charge fees for processing FOIA requests and
appeals?
1515.32 What is the amount of the fee for processing a request?
1515.33 Are there any exceptions for special requesters?
1515.34 Can I apply for a fee waiver?
1515.35 When will CEQ contact me about fee-related matters?
1515.36 Do I have to pay fees if CEQ misses the deadline for
responding to my request?
1515.37 When are fees due and how do I pay them?
1515.38 What will CEQ do if I do not promptly pay the fee?

Subpart E--Confidential Commercial Information and Preservation of
Records

Sec.
1515.41 How does CEQ handle confidential commercial information?

Authority: 5 U.S.C. 552; E.O. 13392, 70 FR 75373, 3 CFR, 2005
Comp., p. 216; Pres. Mem., 74 FR 4685, 3 CFR, 2009 Comp., p. 338.
Section 1515.41 also issued under E.O. 12600, 52 FR 23781, 3
CFR, 1987 Comp., p. 235.

Subpart A--The Council on Environmental Quality's FOIA Program

Sec. 1515.1 What is the purpose of the rules in this part?

(a) This part explains how you, a member of the public, may request
copies of records from the Council on Environmental Quality (CEQ) under
the Freedom of Information Act (FOIA). You can find the text of the
FOIA at 5 U.S.C. 552.
(b) Nothing in this part entitles you to any service or to the
disclosure of any record to which you are not entitled under the FOIA.

Sec. 1515.2 What kind of records does CEQ maintain?

CEQ carries out responsibilities under the National Environmental
Policy Act of 1969, as amended (42 U.S.C. 4321-4347); the Environmental
Quality Improvement Act of 1970, as amended (42 U.S.C. 4371-4375);
Reorganization Plan No. 1 of 1977 (July 15, 1977); and various
Executive orders, among other authorities. CEQ maintains certain
records on these subjects, among others.

Sec. 1515.3 Are there any CEQ records that CEQ proactively discloses
and for which I do not have to make a request?

Yes. The FOIA requires CEQ to proactively disclose--that is, to
make certain records available for public inspection online--records
that have been or are likely to become the subject of repeated
requests. You can find those records, together with an index, at
<a href="https://www.whitehouse.gov/ceq/foia/">https://www.whitehouse.gov/ceq/foia/</a>.

Sec. 1515.4 Who is responsible for processing FOIA requests and
appeals to CEQ?

(a) CEQ's Chief FOIA Officer oversees the administration of
requests made to CEQ under the FOIA. The Chief FOIA Officer, or the
Chief FOIA Officer's designee, is responsible for processing and
granting or denying FOIA requests. The Chair of CEQ appoints the Chief
FOIA Officer.
(b) The Chief FOIA Officer may appoint a FOIA Appeals Officer. If
the Chief FOIA Officer does so, the FOIA Appeals Officer or the FOIA
Appeals Officer's designee is responsible for processing and granting
or denying FOIA appeals. Otherwise, the Chief FOIA Officer or the Chief
FOIA Officer's designee is responsible for processing FOIA appeals.

Sec. 1515.5 Who can help me with my FOIA request to CEQ?

(a) You may contact CEQ's FOIA Public Liaison for assistance with
your FOIA request, including help in formulating your request and

[[Page 6833]]

information about the status of your request, or to submit concerns
about CEQ's handling of your request. You can contact CEQ's FOIA Public
Liaison by email at <a href="/cdn-cgi/l/email-protection#94f1f2fbfdf5d4f7f1e5baf1fbe4baf3fbe2">[email&#160;protected]</a> or by phone at 202-395-5750. For
additional contact information, visit <a href="https://www.foia.gov">https://www.foia.gov</a> and choose
``Council on Environmental Quality'' in the index of Government
agencies.
(b) If you have a dispute with CEQ over its handling of your FOIA
request, you may contact the National Archives and Records
Administration's Office of Government Information Services for
assistance or dispute resolution services by calling (202) 741-5770 or
visiting <a href="https://archives.gov/ogis">https://archives.gov/ogis</a>. If CEQ agrees to participate in the
voluntary dispute resolution services provided by the Office of
Government Information Services, CEQ will actively engage as a partner
to the process in an attempt to resolve the dispute.
(c) If you are an individual with a disability, CEQ will provide
you with access to and use of information and data through its FOIA
program that is comparable to the access to and use of the information
and data by members of the public who are not individuals with
disabilities, unless doing so would impose an undue burden on CEQ.
(d) If your proficiency in English is limited, CEQ will take steps
as appropriate to provide you with meaningful access to CEQ's FOIA
program.

Sec. 1515.6 What are CEQ's procedures for preserving records?

(a) CEQ preserves records pursuant to title 44 of the United States
Code and the Records Schedules issued by the Archivist of the United
States.
(b) CEQ will not dispose of or destroy agency records that are the
subject of a pending request, appeal, or lawsuit under the FOIA.

Subpart B--Making a FOIA Request and Receiving a Response

Sec. 1515.11 How do I make a FOIA request to CEQ?

(a) You must make your request by email to <a href="/cdn-cgi/l/email-protection#0560636a6c64456660742b606a752b626a73">[email&#160;protected]</a> or by
completing the request form at <a href="https://www.foia.gov">https://www.foia.gov</a>. If you are not
able to make your request by either of these methods, please contact
CEQ's FOIA Public Liaison for assistance.
(b) When making a request to CEQ, you must:
(1) Clearly indicate that you are making a request for records,
such as by including ``Freedom of Information Act Request'' in the
subject line if you are submitting your request by email. If your email
includes attachments, you must enter your request in the body of the
email in addition to the attachment.
(2) Identify or reasonably describe the records you are requesting
in sufficient detail to enable CEQ personnel to locate them with a
reasonable amount of effort. Make your request as specific as you can.
If possible, include the date (or a range of dates), title or name,
author, recipient, subject matter, case number, file designation, or
reference number for the records you seek.
(3) Explain if you need CEQ to provide the records in a particular
form or format. CEQ ordinarily provides records in Portable Document
Format (PDF), but CEQ will provide its response in the format you
request if it is reasonably practicable to do so.
(4) Provide your contact information, such as your phone number,
your email address, or both, so that CEQ is able to contact you, as
necessary, regarding the status of your request and to clarify matters
related to your request.
(5) Indicate the maximum amount you are willing to pay in fees, as
described in subpart E of this part. If you are requesting a fee waiver
as part of your initial request, include the statement described at
Sec. 1515.34(a).
(6) If applicable, include a signed letter on your institution's
official letterhead, stating that you believe you qualify for a
reduction of fees, as described in Sec. 1515.33, because you are a
representative of a non-commercial scientific institution, a
representative of an educational institution, or a member of the news
media.
(c) If you are requesting information that is subject to the
Privacy Act of 1974 (i.e., records about you that CEQ maintains in a
system of records), you must follow the procedures under part 1516 of
this chapter, instead of the procedures in this part.
(d) If you are requesting copies of ethics-related documents that
CEQ makes available pursuant to section 105 of the Ethics in Government
Act of 1978 (such as CEQ employees' public financial disclosure
reports), you must follow the procedures at 5 CFR 2634.603, instead of
the procedures in this part. For more information, visit the U.S.
Office of Government Ethics website at <a href="https://www.oge.gov">https://www.oge.gov</a>.
(e) If CEQ determines that your request does not reasonably
describe the records you are seeking, such that CEQ would not be able
to locate the records you have requested with a reasonable amount of
effort, CEQ will notify you and explain what additional information you
need to provide regarding the records that you seek.
(1) For example, if you request all records related to a broad
subject or all communications between CEQ and a third party, we will
generally ask you to clarify the scope of your request.
(2) Furthermore, your request must seek existing records of CEQ; we
will not create new records or compile new information in order to
respond to a FOIA request.
(3) If you have not provided a way to contact you, or you do not
respond to our inquiry within 30 working days (i.e., excepting
Saturdays, Sundays, and Federal holidays), CEQ will administratively
close your request. If possible, we will notify you of the closure.

Sec. 1515.12 Will CEQ keep my request confidential?

No. CEQ generally will not keep your request confidential. A FOIA
request, including the requester's identity, is generally a matter of
public record. CEQ publishes logs of requests and requesters at <a href="https://www.whitehouse.gov/ceq/foia/">https://www.whitehouse.gov/ceq/foia/</a>.

Sec. 1515.13 When will CEQ respond to my request?

(a) CEQ's Chief FOIA Officer or the Chief FOIA Officer's designee
will make an initial determination of how CEQ will respond to your
request within 20 working days from the date that CEQ received your
request, except as provided in this section.
(b) If CEQ is unable to make a determination within the 20-day
period because of ``unusual circumstances,'' we may extend the period
of time in which we will respond to your request.
(1) ``Unusual circumstances'' exist when, in order to properly
process your request, CEQ must search for, collect, and appropriately
examine a voluminous amount of separate and distinct records, CEQ must
consult with another agency or another component of the Executive
Office of the President, or CEQ must search at separate facilities.
(2) In determining whether ``unusual circumstances'' are present,
CEQ may aggregate and treat multiple requests on clearly related
matters from you (or from other persons acting in concert with you) as
a single request.
(3) Before the conclusion of the 20-day period, CEQ will notify you
of the ``unusual circumstances'' that apply and the date by which we
estimate we will complete processing your request.
(4) When the extension will exceed 10 working days, CEQ will
provide you the opportunity to modify the request or arrange an
alternative time period for processing the original or modified
request.

[[Page 6834]]

(c) If CEQ reasonably requires additional information from you to
clarify your request or to resolve fee-related matters, we may toll
(i.e., pause) the 20-day period, or any extension of that period, from
the date we request information from you until the date you respond. We
will only toll the response period one time for the purpose of
clarifying your request, but we may toll the response period more than
once to resolve fee-related matters.

Sec. 1515.14 What if my request is urgent?

(a) You may ask CEQ to expedite the processing of your FOIA request
or appeal. If CEQ agrees to expedite processing of your request or
appeal, we will process it with priority over non-expedited requests
and appeals and respond to you as quickly as possible.
(b) CEQ will expedite requests or appeals if:
(1) Failing to expedite the request or appeal could reasonably be
expected to pose an imminent threat to the life or physical safety of
an individual; or
(2) You are primarily engaged in disseminating information (e.g.,
you are a member of the news media), and you have an urgent need to
inform the public about an actual or alleged Federal Government
activity, beyond the public's right to know about Government activity
generally.
(c) You may ask for expedited processing when you make your initial
request or appeal, or at any later time.
(d) In order to ask for expedited processing, you must submit a
statement, certified to be true and correct, that explains in detail
why your request or appeal satisfies the requirements of paragraph
(b)(1) or (2) of this section. If you believe that you have an urgent
need to inform the public about an actual or alleged Federal Government
activity, you should provide examples of other coverage of the same or
related subjects, if possible. CEQ may waive the formal certification
requirement at its discretion.
(e) CEQ will notify you within 10 calendar days whether we will
grant or deny you expedited processing.
(f) If CEQ denies you expedited processing, you may appeal that
determination using the procedures in subpart C of this part. We will
process your appeal as promptly as we can.

Sec. 1515.15 How will CEQ process my request?

(a) If your request does not reasonably describe the records you
seek; the information you have requested is not a record subject to
FOIA; CEQ has already published the information you are requesting; or
your request does not follow the procedures described in the
regulations in this part, we will deny your request in accordance with
Sec. 1515.19.
(b) If your request reasonably describes the records you seek and
otherwise comports with the procedures described in this part, CEQ will
process your request as follows:
(1) CEQ will acknowledge your request in writing and assign it an
individualized tracking number. The written acknowledgment may include
CEQ's estimate of the date on which we will respond to your request.
(2) CEQ will search for agency records that respond to your
request. CEQ ordinarily will search records in our possession as of the
date that we begin our search. We will notify you if we use a different
date.
(3) If CEQ finds records that you have requested, we will determine
whether to grant your request (i.e., provide you with the records you
have requested) or to deny it (i.e., withhold the relevant records from
disclosure in accordance with Sec. 1515.16).
(4) Once CEQ has determined whether to grant your request in full,
grant it in part and deny it in part, or deny it in full, we will
notify you of our determination in writing.
(c) If CEQ determines that it has a voluminous amount of records
responsive to your request, or if your request requires CEQ to search
for records in multiple locations (electronic or physical), CEQ may
provide you with one or more interim responses, releasing responsive
records to you on a rolling basis.

Sec. 1515.16 How does CEQ determine when to withhold records or
portions of a record?

(a) If CEQ finds records that are responsive to your request, we
will review the records to determine whether to withhold any of the
records or portions of individual records.
(b) The FOIA identifies nine exemptions to the requirement that
agencies provide agency records upon request. CEQ will only withhold a
record or a portion of a record under one of these exemption to the
FOIA if CEQ reasonably foresees that disclosing it would harm an
interest that the exemption protects. In determining the interests at
stake in disclosing or withholding CEQ records, we bear in mind that
Congress, in creating CEQ, intended for the CEQ Chair to serve as a
confidential advisor to the President and the President's immediate
advisors on matters of environmental policy.
(c) CEQ will also withhold a record, or a portion of a record, if
disclosing it would violate another provision of the FOIA or a law
other than the FOIA.
(d) If the record concerns another government agency, CEQ generally
will involve the other agency in determining whether to withhold the
record or portions of the record, using the procedures at Sec.
1515.17.

Sec. 1515.17 What if I request records that involve another
Government office or agency?

(a) If CEQ determines that any of the CEQ records you have
requested involve another agency in the Federal Government, including
another component of the Executive Office of the President, we
generally will involve the other agency in reviewing that record in
either of two ways.
(1) CEQ may consult with the other agency regarding the record to
obtain the other agency's views on whether the record or portions of
the record are exempt from disclosure under the FOIA. We will take the
other agency's views into consideration when making a final
determination of whether to withhold the record or any portions of the
record.
(2) CEQ may refer the record to the other agency, in which case the
other agency will determine whether the record or portions of the
record are exempt from disclosure under the FOIA, and will respond
directly to you regarding your request for the record. If CEQ
determines to refer records you have requested to another agency, we
will notify you of the referral and explain how to contact the other
agency's FOIA officials.
(b) CEQ will choose between consulting with another agency about a
record and referring the record to the other agency according to the
following principles:
(1) Ordinarily, CEQ will use consultation procedures for records
that originated with CEQ but that contain information of interest to
another agency or office, and CEQ will refer records that originated
with another agency to that agency.
(2) CEQ will typically refer a classified record (or a portion of a
record) or a record that may be appropriate for classification to the
agency that either classified the information or should consider the
information for classification.
(c) CEQ may make agreements with other agencies about how CEQ will
handle records involving that agency or how that agency will handle
records involving CEQ. Any agreement we make will comply with the FOIA
and this part.

[[Page 6835]]

Sec. 1515.18 What happens if CEQ grants my request in full or in
part?

Once you have paid the fees that are due under subpart E of this
part (if any), CEQ will promptly provide you with a copy of the records
you requested, except for the records or portions of records we have
determined to withhold under Sec. 1515.16. We will follow the
procedures in Sec. 1515.19 with respect to those records or portions
of records.

Sec. 1515.19 What happens if CEQ denies my request in full or in
part?

(a) CEQ may deny your request in full or in part for these reasons,
among others:
(1) CEQ determines to withhold all or a portion of the records you
requested under Sec. 1515.16;
(2) Your request does not reasonably describe the records you seek;
(3) The information you requested is not a record subject to the
FOIA;
(4) CEQ has already published the records you are requesting;
(5) The records you requested do not exist, cannot be located, or
have been destroyed;
(6) The records you requested are not readily reproducible in the
form or format you seek; or
(7) Your request does not comport with the procedures set forth in
this part.
(b) If CEQ denies your request regarding expedited processing or
fee-related matters, we will also treat that as a denial of your
request in part and follow the procedures in this section.
(c) If CEQ determines to deny your request in full or in part, we
will notify you of the basis for the denial. The notification will
include the following information:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption CEQ applied in determining to withhold records (or
portions thereof) under Sec. 1515.16;
(3) An estimate of the volume of the records CEQ is withholding,
unless the volume is indicated by markings we have made on the records
we are providing;
(4) A statement that you may appeal the denial to CEQ, under
subpart C of this part, and an explanation of what you must do to
appeal; and
(5) A reminder that you can obtain assistance from CEQ's FOIA
Public Liaison and dispute resolution services from the National
Archives and Records Administration's Office of Government Information
Services.
(d) For each record CEQ discloses in part, we will mark the record
clearly to show which portions we are withholding and the FOIA
exemptions we applied in determining to withhold those portions, unless
doing so would harm an interest protected by an applicable FOIA
exemption. If technically feasible, we will mark the record to indicate
the location of the portions we are withholding.

Subpart C--Appealing a FOIA Request

Sec. 1515.21 Can I appeal CEQ's response to my request?

(a) Yes. You may appeal CEQ's response if you disagree with any
determination that CEQ made in responding to your request, including
CEQ's determination to deny your request in whole or in part, CEQ's
determination to deny you expedited processing, CEQ's determination of
how to conduct the search for records, and fee-related determinations.
(b) CEQ must receive your appeal within 90 calendar days of the
date on which CEQ notified you of the relevant determination in
writing.
(c) You must make your appeal by email to <a href="/cdn-cgi/l/email-protection#afcac9c0c6ceefcccade81cac0df81c8c0d9">[email&#160;protected]</a>. If you
are not able to make your appeal by email, please contact CEQ's FOIA
Public Liaison for assistance.
(1) Clearly indicate that you are making an appeal, such as by
including ``Freedom of Information Act Appeal'' in the subject line. If
your email includes attachments, you also must explain your request in
the body of the email, in addition to the attachment.
(2) If you are not able to make your appeal by email, please
contact CEQ's FOIA Public Liaison for assistance.
(d) Your appeal must include your request's individualized tracking
number and must identify the specific CEQ determinations you are
appealing.
(e) If you fail to properly appeal a determination that CEQ made in
processing your request, you may lose your right to challenge that
determination in Federal court.

Sec. 1515.22 How will CEQ process my appeal?

(a) CEQ will review the determinations you have appealed and
determine if they are consistent with applicable law and policy. CEQ
will conduct this review de novo, which means that CEQ will not presume
that its prior determinations were correct. Whenever reasonably
possible, CEQ will assign your appeal to a different official than the
one who was responsible for processing your original request.
(b) CEQ will respond to your appeal within 20 working days from the
date that CEQ received your appeal.
(c) If CEQ determines to uphold a determination that you have
appealed, CEQ's response will:
(1) Include a statement that identifies our reasons for affirming
the decision, including any FOIA exemption CEQ applied in determining
to affirm our determination to withhold a record or a portion of a
record; and
(2) Explain how to challenge our determination by filing a lawsuit
in Federal court and how to seek dispute resolution services from the
National Archives and Records Administration's Office of Government
Information Services.
(d) If CEQ determines to reverse or modify a determination that you
have appealed, we will reprocess your request in accordance with the
reversed or modified determination, using the procedures set forth at
Sec. 1515.15.
(e) CEQ ordinarily will not adjudicate an appeal if the appealed
request becomes the subject of litigation.

Subpart D--Fees for FOIA Requests and Appeals

Sec. 1515.31 Can CEQ charge fees for processing FOIA requests and
appeals?

(a) Yes. CEQ may charge fees for processing your FOIA request.
(b) CEQ will determine whether to charge a fee and the amount of
the fee by using the rules in this subpart and the Office of Management
and Budget's Uniform Freedom of Information Act Fee Schedule and
Guidelines, as amended.\1\
---------------------------------------------------------------------------

\1\ 52 FR 10016 (Mar. 27, 1987).
---------------------------------------------------------------------------

(c) CEQ will not charge fees for deciding whether to grant or deny
your appeal. If CEQ grants your appeal, we will charge fees for any
additional searching, reviewing, or duplication that we carry out as a
result of your appeal. For instance, if you appeal our determination of
how to conduct the search for records, and we grant your appeal, we
will conduct a new search in the manner you requested and will charge
you fees accordingly.

Sec. 1515.32 What is the amount of the fee for processing a request?

(a) CEQ will charge fees equal to:
(1) The basic hourly rate of pay for each employee who participates
in searching for records, reviewing records, or duplicating records
(including contract employees), multiplied by the total number of hours
that the employee worked on your request (rounded to the nearest
quarter of an hour), plus 16 percent (to account for employee
benefits); plus
(2) The total direct costs that CEQ incurs in searching for,
reviewing, or

[[Page 6836]]

duplicating records, such as the cost of operating computers and other
electronic equipment, but excluding overhead expenses such as the cost
of office space, heating, and lighting; plus
(3) An additional fee equal to the total direct costs of any
additional services that you and CEQ agree upon, such as providing
multiple copies of a record.
(b) In determining the fee under paragraph (a) of this section, CEQ
will use the following guidelines:
(1) ``Searching for records'' is the process of looking for and
retrieving the records you requested (including by electronic search)
and determining whether individual records contain the information that
you seek. CEQ will charge fees for searching for records even if we do
not locate any records that respond to your request, or even if we
determine not to disclose any of the records that we locate.
(2) ``Reviewing records'' is the process of examining records to
determine whether to withhold them, in accordance with Sec. 1515.16,
and preparing records for disclosure (for instance, by marking records
to indicate which portions CEQ is withholding).
(i) ``Reviewing records'' also includes the time CEQ spends
obtaining and considering the views of other government agencies under
Sec. 1515.17 and the time CEQ spends obtaining and considering formal
objections to disclosure under Sec. 1515.41.
(ii) ``Reviewing records'' does not include time CEQ spends
resolving general legal or policy questions regarding the application
of exemptions.
(iii) CEQ will charge fees for reviewing records even if we
determine not to disclose any of the records that we review.
(3) ``Duplicating records'' is the process of reproducing records,
including scanning or printing records as necessary, in order to
provide you with a copy.
(4) CEQ may include employee costs and direct costs that another
component of the Executive Office of the President incurs in assisting
CEQ with your request.
(c) CEQ will not charge fees if the total is less than $25.00, or
if we determine that the cost of collecting the fee would exceed the
amount of the fee.
(d) If CEQ reasonably determines that you (or other persons acting
in concert with you) have submitted multiple requests on related
matters for the purpose of avoiding fees, we may aggregate those
requests and charge fees accordingly.

Sec. 1515.33 Are there any exceptions for special requesters?

(a) Yes. CEQ makes the following exceptions for special requesters:
(1) CEQ will not charge you fees for searching for records if you
are an educational institution, a noncommercial scientific institution,
or a representative of the news media. Otherwise, CEQ will not charge
you fees for the first 2 hours of searching for records, unless you are
a commercial requester.
(2) CEQ will not charge you fees for reviewing records, unless you
are a commercial requester.
(3) CEQ will not charge you fees for the first 100 pages of
duplication (or an equivalent cost for duplication in other media),
unless you are a commercial requester.
(b) For purposes of applying the exceptions in this section:
(1) You are a representative of a non-commercial scientific
institution if your institution operates solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular product or industry, and your request is in
furtherance of scientific research.
(2) You are a representative of an educational institution if you
work for or study at a school that operates a program of scholarly
research and your request is in furtherance of scholarly research.
(3) You are a representative of the news media if you or your
employer gathers information of potential interest to a segment of the
public, uses editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience, and your request is in
furtherance of these activities. For the purposes of this paragraph
(b), news means information that is about events of current interest to
the public.
(i) If you are a freelance journalist, CEQ will consider you a
representative of the news media if you can demonstrate that you have a
solid basis to expect that a news media entity will publish the work to
which your request relates, such as a publishing contract or a strong
record of past publications.
(ii) If you are a representative of the news media, CEQ will
ordinarily presume that your request does not primarily further a
commercial interest for purposes of this section and Sec. 1515.34.
(4) You are a commercial requester if you do not qualify as a
special requester under paragraph (b)(1), (2), or (3) of this section
and your request furthers a commercial, trade, or profit interest or
supports litigation in furtherance of those interests.
(c) If you claim to be a representative of a non-commercial
scientific institution, an educational institution, or the news media,
CEQ may require you to verify your status by providing reasonable
documentation, such as a signed letter on official letterhead. If you
claim that your request is non-commercial for another reason, CEQ may
require you to explain why it is non-commercial.

Sec. 1515.34 Can I apply for a fee waiver?

(a) Yes. You can apply for a waiver of fees (or a reduction of
fees) by submitting a written statement that explains why disclosing
the information will meet the conditions in paragraph (c) of this
section.
(b) You can apply for a fee waiver at any time before CEQ completes
processing your request or an appeal of your request. You can apply for
a fee waiver with respect to a part of the records you seek or with
respect to all of them.
(c) CEQ will grant you a fee waiver if all of the following
conditions are met:
(1) Disclosure of the requested information would shed light on the
operations or activities of the Government. The connection between the
subject matter of your request, on the one hand, and identifiable
operations or activities of the Federal Government, on the other, must
be direct and clear, not remote or attenuated.
(2) Disclosure of the requested information would likely contribute
significantly to public understanding of those operations or
activities, because it would satisfy both of the following criteria:
(i) Disclosure of the requested records would be meaningfully
informative about Government operations or activities. (The disclosure
of information that already is in the public domain, in either the same
or a substantially identical form, would not be meaningfully
informative if nothing new would be added to the public's
understanding.)
(ii) The disclosure would contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to your own individual understanding. (CEQ will presume that
your request satisfies this criterion if you are a representative of
the news media; otherwise, we will consider your expertise in the
subject area as well as your ability and intention to effectively
convey information to the public.)
(3) Disclosure of the requested information would not primarily

[[Page 6837]]

advance your commercial, trade, or profit interests.
(d) CEQ will determine whether to grant or deny your request for a
fee waiver if and when we would otherwise charge you fees. If we
determine prior to that time that we are unlikely to grant your request
for a fee waiver, we may notify you of our determination so that you
may modify your request.

Sec. 1515.35 When will CEQ contact me about fee-related matters?

(a) If CEQ determines or estimates that we will charge you more
than $25.00 in fees, we will notify you of our determination or
estimate, unless you have already told us that you are willing to pay
fees equal to or in excess of the amount we have determined or
estimated.
(1) If CEQ can only estimate a part of the fee, we will explain
that in the notice.
(2) If you are entitled to 2 hours of searching and 100 pages of
duplication for free for the reasons described in Sec. 1515.33, CEQ
will advise you of this and explain whether we have already provided
these entitlements.
(3) CEQ may ask you to tell us the maximum amount you are willing
to pay in fees in writing, in which case we will toll the period for
processing your request until you respond.
(b) If CEQ determines or estimates that the fee will exceed the
maximum amount you previously told us you were willing to pay, we will
inquire with you about modifying your request or increasing the
maximum, and we will toll the period for processing your request until
you respond.
(c) If you have not provided a way to contact you regarding fee
matters, or you do not respond to a fee-related inquiry within 30
calendar days, CEQ will deny your request.

Sec. 1515.36 Do I have to pay fees if CEQ misses the deadline for
responding to my request?

CEQ will not charge search fees or duplication fees if we have
failed to grant or deny your request within the period described in
Sec. 1515.13, unless:
(a) CEQ determines that unusual circumstances are present, as
described in Sec. 1515.13; and
(1) CEQ finishes processing your request within 10 working days of
the original deadline; or
(2) Your request seeks more than 5,000 pages of records; CEQ has
provided you timely written notice of the unusual circumstances; and we
have discussed with you how you could effectively limit the scope of
your request (or we made at least three attempts in good faith to do
so); or
(b) A court grants CEQ additional time to process your request due
to exceptional circumstances, and we finish processing your request
within the period set forth in a court order.

Sec. 1515.37 When are fees due and how do I pay them?

(a) Ordinarily, CEQ will bill you for fees at the time we respond
to your FOIA request.
(b) When CEQ determines or estimates that the total fee for your
request will exceed $250, we may require that you pay all or part of
the anticipated fee in advance before we will process (or continue to
process) your request.
(c) If you have previously failed to pay a FOIA fee that was due to
any Government agency within 30 calendar days of the billing date, CEQ
may require you to pay the outstanding fee (including interest) and
make an advance payment of the anticipated fee for your current request
before we will process (or continue to process) your request.
(d) If CEQ requires you to make an advance payment under this
section, we will toll the period for processing your request until we
receive the payment. If you do not pay within 30 calendar days, we will
deny your request.
(e) CEQ will inform you of how to make a payment at the time that
we bill you or require you to make an advance payment.

Sec. 1515.38 What will CEQ do if I do not promptly pay the fee?

If you do not pay a fee within 30 calendar days of the date of the
bill:
(a) CEQ may charge interest, at the rate provided for in 31 U.S.C.
3717, from the 31st day following the date of billing through the date
we receive your payment; and
(b) CEQ will follow the provisions of the Debt Collection Act of
1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, including its
administrative procedures, which provide for the use of consumer
reporting agencies, collection agencies, and offset.

Subpart E--Confidential Commercial Information and Preservation of
Records

Sec. 1515.41 How does CEQ handle confidential commercial information?

(a) At the time that a person or entity outside the Federal
Government (a submitter) directly or indirectly provides information to
CEQ, the submitter must mark or otherwise designate any part of its
submission that it considers in good faith to be confidential
commercial information.
(1) Confidential commercial information means commercial or
financial information that comes within the scope of Exemption 4 of the
FOIA, 5 U.S.C. 552(b)(4).
(2) In good faith means not frivolously.
(3) The submitter also must explain how long CEQ should consider
the information to be confidential commercial information, or else CEQ
will presume that the designation expires after 10 years.
(b) Prior to disclosing information in response to a FOIA request,
CEQ will provide written notice to the submitter if:
(1) The submitter has properly designated the information as
confidential commercial information pursuant to paragraph (a) of this
section; or
(2) CEQ requires the submitter's views on whether the information
is confidential commercial information.
(c) Each notice under paragraph (b) of this section will either
describe the information in question or include a copy of the requested
records (or portions of records) containing the information. If the
matter involves a large number of submitters, CEQ may post or publish
the notice in a place or manner reasonably likely to inform the
submitters of the potential disclosure, instead of sending individual
notifications.
(d) CEQ will not provide a notice under paragraph (b) of this
section if:
(1) CEQ has determined to withhold the information under Sec.
1515.16;
(2) Someone other than CEQ has already lawfully published the
information; or
(3) A law other than the FOIA requires CEQ to disclose the
information.
(e) When CEQ provides a notice under paragraph (b) of this section:
(1) CEQ will give the submitter a reasonable period in which to
reply.
(2) If the submitter objects to CEQ disclosing the information (in
whole or in part), the submitter must reply to CEQ with a detailed
explanation of which FOIA exemptions it believes apply to the
information and why the information comes within the scope of those
FOIA exemptions. CEQ will consider the submitter's reply, if any, in
determining whether to disclose the information in question in response
to a FOIA request.
(3) If the submitter does not reply to CEQ during the period stated
in the notice, CEQ will deem the submitter to have no objection to
CEQ's disclosure of the information, except that CEQ may consider late
replies in its discretion.

[[Page 6838]]

(f) If CEQ determines to disclose information over a submitter's
objection, CEQ will notify the submitter in writing.
(1) The notice will explain why CEQ disagreed with the submitter's
objections and describe the information CEQ will disclose (or include a
copy of the relevant agency records in the form in which CEQ will
release them).
(2) The notice will indicate the date on which CEQ will disclose
the information, which will be a reasonable number of calendar days
following the date of the notice unless the FOIA requires us to
disclose the information more promptly.
(3) CEQ will also provide the notice described in this paragraph
(f) when CEQ determines to disclose information that a submitter
designated as confidential commercial information not in good faith.
(g) CEQ will notify a submitter who has designated confidential
commercial information pursuant to paragraph (b) of this section if a
requester files a lawsuit seeking to compel CEQ to disclose the
information under the FOIA.
(h) CEQ will notify the relevant FOIA requester whenever it
provides a notice under paragraph (b) or (f) of this section, and
whenever a submitter files a lawsuit to prevent the disclosure of
information.

PART 1516--PRIVACY ACT IMPLEMENTATION

Sec.
1516.1 What is the purpose of this part?
1516.2 What records does this part cover?
1516.3 When will CEQ disclose records about me?
1516.4 How can I obtain access to CEQ's records about me?
1516.5 How can I get information about how CEQ has used its records
about me?
1516.6 How can I ask CEQ to correct my records?
1516.7 How can I appeal CEQ's decision to deny my request to access
or correct records about me?
1516.8 Will CEQ charge me a fee for a copy of my records?

Authority: 5 U.S.C. 552a.

Sec. 1516.1 What is the purpose of this part?

(a) This part explains how the Council on Environmental Quality
(CEQ) manages certain records about individuals under the Privacy Act
of 1974 (the Privacy Act). You can find the text of the Privacy Act at
5 U.S.C. 552a.
(b) This part explains how you, a citizen or lawful permanent
resident of the United States, can request access to records about
yourself, request that CEQ amend or correct those records, or request
that CEQ inform you about how it has used those records.

Sec. 1516.2 What records does this part cover?

(a) This part covers any records about you that CEQ maintains in a
system of records.
(b) A record is any item, collection, or grouping of information
about you that contains your name or another piece of information that
identifies you (for example, your social security number).
(c) CEQ maintains your record in a system of records if CEQ:
(1) Maintains, collects, uses, or disseminates the record as part
of a larger group of records; and
(2) Organizes the group by individuals' names or by another piece
of information that identifies individuals (such as their Social
Security numbers).

Sec. 1516.3 When will CEQ disclose records about me?

CEQ will only disclose records about you that it maintains in
system of records if:
(a) You or your authorized representative submit a request for your
own records or agree in writing that CEQ may disclose the records to
someone else;
(b) CEQ is making the disclosure as part of one of CEQ's routine
uses of the records, which CEQ must have previously established in a
written public notice; or
(c) The disclosure qualifies for one of the other exceptions
described in section 3 of the Privacy Act, which you can find at 5
U.S.C. 552a(b).

Sec. 1516.4 How can I obtain access to CEQ's records about me?

(a) You can obtain access to CEQ's records about you by submitting
a request by email to <a href="/cdn-cgi/l/email-protection#2f4a4940464e6f4c4a5e014a405f01484059">[email&#160;protected]</a>. If you are not able to make
your request by email, please contact CEQ's Office of the General
Counsel for assistance by calling 202-395-5750.
(b) Your request must describe the records that you want, in enough
detail to enable CEQ to locate them with a reasonable amount of effort.
(1) You should name or describe the system of records you want CEQ
to search.
(2) If you are not sure which system of records you are interested
in, you may request that CEQ inform you which of its systems of
records, if any, contain records about you.
(c) To protect the privacy of your records, CEQ will require you to
verify your identity before processing your request. CEQ may require
you to:
(1) Provide a statement that contains your name, your current
address, and your date and place of birth, and sign the statement
before a notary public;
(2) Verify your identity using an electronic authentication
process; or
(3) Supply additional information as necessary in order to verify
your identity.
(d) CEQ may deny your request if:
(1) CEQ prepared the records you are seeking in reasonable
anticipation of a civil action or proceeding (that is, a lawsuit or a
similar proceeding); or
(2) The Privacy Act exempts the system containing your records from
the requirement that CEQ provide those records upon request.
(e) If CEQ grants your request, you may arrange to review your
records in person, obtain a copy from CEQ, or both. If you choose to
review your records in person, you may choose one person to accompany
you, except that CEQ may first require you to authorize CEQ to discuss
your records in that person's presence.
(f) If CEQ denies your request in whole or in part, CEQ will give
you the reason for its decision in writing and explain how you can
challenge the denial.

Sec. 1516.5 How can I get information about how CEQ has used its
records about me?

You can request information about how CEQ has used its records
about you--called an ``accounting of disclosures''--using the same
procedures you would use to make a request for access to your records
under Sec. 1516.4.

Sec. 1516.6 How can I ask CEQ to correct my records?

(a) You can request that CEQ correct or update its records about
you using the same procedures you would use to make a request for
access to your records under Sec. 1516.4.
(b) In your request, you must explain exactly what change you are
requesting and point out specific pieces of information in your CEQ
records that are inaccurate, irrelevant, outdated, or incomplete.
(c) CEQ will review your request, decide whether to grant or deny
it, and inform you of the decision within 10 working days (i.e.,
excepting Saturdays, Sundays, and Federal holidays).
(d) If CEQ denies your request, CEQ will give you the reason for
its decision in writing and explain how you can appeal the denial.

Sec. 1516.7 How can I appeal CEQ's decision to deny my request to
access or correct records about me?

(a) If CEQ denies your request to access or correct CEQ's records
about you, you can appeal the decision using the same procedures you
would use to

[[Page 6839]]

make a request for access to your records under Sec. 1516.4.
(b) In your appeal, you must include a copy of CEQ's decision
denying your request and explain exactly why you believe the decision
was wrong.
(c) The General Counsel of CEQ (or the General Counsel's designee)
will review your appeal, decide whether to grant or deny it, and inform
you of the decision within 30 working days. If it is necessary to
extend the time for making a decision, the Chair of CEQ (or the Chair's
designee) will explain why in writing.
(d) If CEQ's General Counsel (or designee) denies your appeal, you
may provide CEQ with a concise statement that explains your
disagreement with the decision, and you may bring a civil lawsuit
against CEQ.
(1) If CEQ subsequently discloses the disputed record under Sec.
1516.4, we will clearly identify the disputed portion of the record and
attach a copy of your statement of disagreement.
(2) For more information about filing a civil lawsuit, see 5 U.S.C.
552a(g)(1).

Sec. 1516.8 Will CEQ charge me a fee for a copy of my records?

If you request a copy of CEQ's records about you, CEQ may charge
you a fee of no more than 10 cents per page, which you must pay before
CEQ provides you with a copy of your records.

[FR Doc. 2025-00960 Filed 1-17-25; 8:45 am]
BILLING CODE 3325-FA-P

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.