Proposed Rule2026-01511
Freedom of Information Act Regulations Update
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 27, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or agency) proposes revisions to the agency's regulations under the Freedom of Information Act (FOIA or Act). This action is based on EPA's targeted reconsideration of the 2023 Freedom of Information Act (FOIA) Regulations Update, Phase II. EPA proposes to eliminate the inclusion of the newly minted Environmental Justice Expedited Processing (EJ EP) criteria.
Full Text
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<title>Federal Register, Volume 91 Issue 17 (Tuesday, January 27, 2026)</title>
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[Federal Register Volume 91, Number 17 (Tuesday, January 27, 2026)]
[Proposed Rules]
[Pages 3407-3409]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-01511]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 2
[OGC-2022-0885; FRL 5630-02-OGC]
RIN 2015-AA05
Freedom of Information Act Regulations Update
AGENCY: Environmental Protection Agency (EPA)
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or agency) proposes
revisions to the agency's regulations under the Freedom of Information
Act (FOIA or Act). This action is based on EPA's targeted
reconsideration of the 2023 Freedom of Information Act (FOIA)
Regulations Update, Phase II. EPA proposes to eliminate the inclusion
of the newly minted Environmental Justice Expedited Processing (EJ EP)
criteria.
DATES: Written comments on this proposal will be accepted on or before
February 26, 2026.
ADDRESSES: You may send comments, identified by Docket ID No. OGC-2022-
0885, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of General Counsel Docket, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
<bullet> Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m. through 4:30
p.m., Monday through Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Justace Keller, Office of General
Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue
NW, (2310A), Washington, DC 20460; telephone, 202-564-5306; email,
<a href="/cdn-cgi/l/email-protection#670c020b0b0215490d1214130604022702170649000811"><span class="__cf_email__" data-cfemail="3f545a53535a4d11554a4c4b5e5c5a7f5a4f5e11585049">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Does this action apply to me?
III. Scope of This Action
IV. Background
V. Rescinding Environmental Justice Expedited Processing
VI. Statutory and Executive Orders Reviews
I. Public Participation
Submit your comments, identified by Docket ID No. OGC-2022-0885, at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the other
methods identified in the ADDRESSES section. Once submitted, comments
cannot be edited or removed from the docket. The EPA may publish any
comment received to its public docket. Do not submit to EPA's docket at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you consider to be
Confidential Business Information (CBI), Proprietary Business
Information (PBI), or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). Please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a> for additional submission methods; the
full EPA public comment policy; information about CBI, PBI, or
multimedia submissions; and general guidance on making effective
comments.
II. Does this action apply to me?
This discussion is not intended to be exhaustive but rather
provides a guide for readers regarding entities likely to be regulated
by this action. This discussion includes the types of entities that the
EPA is now aware could potentially be regulated by this action. Other
types of entities not included could also be
[[Page 3408]]
regulated. This action may also specifically apply to communities that
relied on the EJ EP provision and the wider public in general as it
impacts the circumstances under which EPA can provide expedited
processing to FOIA requests. To determine whether your entity is
regulated by this action, you should carefully examine the
applicability criteria found in 40 CFR part 2. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the FOR FURTHER INFORMATION CONTACT
section.
III. Scope of This Action
This action proposes changes to EPA's FOIA regulations at 40 CFR
part 2. The proposed changes would remove the EJ EP provision. EPA
proposes changes to align with government-wide policy consistent with
Executive Order 14151, Ending radical and Wasteful Government DEI
Programs and Preferencing.
IV. Background
This action proposes removing the EJ EP provision which was
finalized and implemented on November 13, 2023 as part of the Phase II
Rule updating EPA's FOIA regulations. This provision provides expedited
processing and a fee waiver for requests if the records sought pertain
to an environmental justice-related need and will be used to inform an
affected community. The provision was added to the FOIA regulations to
provide timely access to information contained in EPA records by
communities with environmental justice concerns. To determine whether
an application for expedited processing qualifies under this provision,
the Agency considers: (1) whether the requested records relate to
actual or alleged Federal Government activity, including Agency records
containing environmental information or data; (2) the extent to which
there is a pressing need to inform the community about the Federal
Government activity; (3) the extent to which the community is
potentially experiencing disproportionate and adverse human health or
environmental effects; and (4) the requester's ability and intention to
effectively convey the information to members of the community. The
Agency stated that it intended to use EJScreen to aid in determining
whether the identified community is potentially experiencing a
disproportionate and adverse human health or environmental effect.
No other changes are being made to the FOIA regulations at this
time.
V. Rescinding Environmental Justice Expedited Processing
EPA proposes to remove the provision that allows requesters to seek
expedited processing of their request if the records sought pertain to
an environmental justice-related need and will be used to inform an
affected community.
When revising a policy, as EPA is doing in this proposed action, an
agency must only show that the new policy is permissible under the
statute, that there are good reasons for it, and that the agency
believes it to be better, which the conscious change of course
adequately indicates. FCC v. Fox TV Stations, Inc., 556 U.S. 502, 515.
Here, the FOIA Statute allows an agency to issue regulations for
expediting processing of requests for records in cases of compelling
need and ``in other cases determined by the agency'' 5 U.S.C.
552(a)(6)(E)(i). The statute does not require adoption of regulations
for such ``other cases.'' Removing this provision provides cost-
reduction benefits to the agency. The staff and management time spent
on review and analysis of these requests and any subsequent appeals,
particularly without the use of EJScreen, outweighs the benefit to the
public, as less than 2.7% of EJ EP requests were granted from November
13, 2023, to August 31, 2025. Further, EPA's conscious change of course
shows that the agency now believes removing the EJ EP provision to be
the better policy. This action will not remove or modify the expedited
processing for requests demonstrating a ``compelling need,'' which the
FOIA provides at 5 U.S.C. 552(a)(6)(E)(i)(I). Requesters will still be
able to request expedited processing under the EPA FOIA Regulations
under the compelling need standard which is provided for in the FOIA
Statute. 40 CFR 2.104(g)(1)(i); 5 U.S.C. 552(a)(6)(E)(i). The
compelling need standard grants expedited processing to requests in one
of two situations: (1) where there is an imminent threat to the life or
physical safety of an individual; or (2) there is urgency to inform the
public about an actual or alleged Federal Government activity, and the
information is requested by a person primarily engaged in disseminating
information to the public. Additionally, requesters will still be able
to request a fee waiver per EPA FOIA regulations. 40 CFR 2.104(n).
This proposal is consistent with Executive Order 14151, Ending
radical and Wasteful Government DEI Programs and Preferencing, which
calls for ``the termination of all discriminatory programs, including
illegal DEI and `diversity, equity, inclusion, and accessibility'
(DEIA) mandates, policies, programs, preferences, and activities in the
Federal Government, under whatever name they appear.''
Request for Comment 1: EPA specifically seeks comment on removing
the expedited processing category for requests seeking environmental
justice-related information. For example, EPA requests comment on the
effects of removing this provision on the FOIA requester community.
VI. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is expected to be an Executive Order 14192 deregulatory
action. This proposed rule is expected to provide burden reduction by
eliminating the agency's Environmental Justice Expedited Progress
procedures at 40 CFR part 2 to comply with Executive Order 14151.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Submission
of a FOIA request is a voluntary action that any member of the public,
including small entities, can elect to do and the rule relates to the
procedures for submitting and processing a FOIA request for EPA
records.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandates as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no
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enforceable duty on any state, local or tribal governments or the
private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
Indian Tribal governments or on the relationship between the national
government and the Indian Tribal governments. Thus, Executive Order
13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
List of Subjects in 40 CFR Part 2
Environmental protection, Administrative practice and procedure,
Confidential business information, Freedom of information, Government
employees.
Lee Zeldin,
Administrator.
For the reasons set out in the preamble, title 40 of the Code of
Federal Regulations, part 2, is proposed to be amended as follows.
PART 2--PUBLIC INFORMATION
0
1. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717.
0
2. Revise and republish Sec. 2.104(g) to read as follows:
Sec. 2.104 Responses to requests.
* * * * *
(g) Expedited processing.
(1) EPA will take requests or appeals out of order and give
expedited treatment whenever EPA determines that such requests or
appeals involve a compelling need. A compelling need is defined as
either:
(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) Requesters must make a written request for expedited processing
at the time of the initial request for records or at the time of
appeal.
(3) If the requester seeks expedited processing, the requester must
submit a statement, certified to be true and correct to the best of the
requester's knowledge and belief, explaining in detail the basis for
the request.
(i) For example, if the requester fits within the category
described in paragraph (g)(1)(i) of this section and is not a full-time
member of the news media, the requester must establish that they are a
person whose primary professional activity or occupation is information
dissemination, although it need not be the requester's sole occupation.
(ii) If the requester fits within the category described in
paragraph (g)(1)(i) of this section, the requester must also establish
a particular urgency to inform the public about the government activity
involved in the request, beyond the public's right to know about
government activity generally.
(4) Within 10 calendar days from the date of the request for
expedited processing, the Chief FOIA Officer, or the Chief FOIA
Officer's delegates, will decide whether to grant the request and will
notify the requester of the decision. If the Agency grants the request
for expedited processing, the Agency will give the request priority and
will process the request as soon as practicable. If the Agency denies
the request for expedited processing, the Agency will act on any appeal
of that decision expeditiously.
[FR Doc. 2026-01511 Filed 1-26-26; 8:45 am]
BILLING CODE 6560-50-P
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