Revision of Freedom of Information Act Regulations, 58576-58584 [E9-27234]

Agencies

• COUNCIL ON ENVIRONMENTAL QUALITY

[Federal Register Volume 74, Number 218 (Friday, November 13, 2009)]
[Proposed Rules]
[Pages 58576-58584]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27234]


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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Part 1515

RIN 0331-ZA01


Revision of Freedom of Information Act Regulations

AGENCY: Council on Environmental Quality.

ACTION: Notice of proposed rulemaking and opportunity for comment.

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SUMMARY: The Council on Environmental Quality (CEQ) is proposing to 
amend its Freedom of Information Act (FOIA) regulations to reflect its 
current policy and practice and to implement changes to the FOIA. These 
proposed regulations reaffirm CEQ's commitment to providing the fullest 
possible disclosure of records to the public. The proposal provides for 
an online FOIA Requester Service Center and Reading Room; electronic 
FOIA requests; access to records published or released under FOIA in 
electronic format, provided the record is readily reproducible in that 
form or format; designation of a Chief FOIA Officer and FOIA Public 
Liaison; referral of requests to appropriate Federal agencies or 
consultation with another agency, if appropriate; review of requests in 
order of receipt; multi-tracking of FOIA requests based on the amount 
of time and work involved in processing requests; revision of CEQ's 
initial determination period from 10 days to 20 days, beginning on the 
date CEQ receives a written request; assignment of individualized 
tracking numbers for certain requests; tolling of the time limit CEQ 
has to act on a request; expedited processing of FOIA requests upon a 
showing of compelling need; CEQ consultations with a requester to 
determine if a FOIA request may be modified to allow for a timely 
response, or to arrange an alternative timeframe for a response; 
informing the requester of the volume of requested material withheld 
and the extent of deletions in records released in response to a FOIA 
request; reduction in time for appeal from 45 to 30 days of denial of a 
request; extension of the time limit to respond to a request in 
``unusual circumstances''; and aggregation of clearly related requests 
by a single requester or group of requesters. Further, CEQ's fee 
structure is revised to include a method for computing fees based upon 
the classification of the requester and the base pay of the employee 
making the search, an increase of copying costs from $0.10 to $0.15 per 
page, and a provision for waiving fees. Additional

[[Page 58577]]

administrative changes including reorganizing, renumbering, and 
renaming of the FOIA subsections and updating addresses and telephone 
numbers are also proposed.

DATES: Comments due on or before December 14, 2009.

ADDRESSES: All comments concerning the proposed rule must be submitted 
in either electronic or written form. Electronic mail comments should 
be sent to efoia@ceq.eop.gov and should include in the body of the e-
mail message the commenter's full name and postal service address. 
Written comments should be addressed and mailed to Edward A. Boling, 
Chief FOIA Officer, Council on Environmental Quality, 722 Jackson 
Place, NW., Washington, DC 20503. Faxed comments should be sent to 
(202) 456-0753. Copies of all communications received will be available 
for public inspection and copying at the address above.

FOR FURTHER INFORMATION CONTACT: Elizabeth Moss, FOIA Coordinator, 722 
Jackson Place, NW., Washington, DC 20503 or (202) 456-6550.

SUPPLEMENTARY INFORMATION: CEQ coordinates Federal environmental 
efforts and works closely with agencies and other White House offices 
in the development of environmental policies and initiatives. CEQ was 
established within the Executive Office of the President by Congress as 
part of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 
et seq. (NEPA) and additional responsibilities were provided by the 
Environmental Quality Improvement Act of 1970, 42 U.S.C. 4372 et seq. 
CEQ's current FOIA regulations are published at 40 CFR Part 1515 and 
are available on the CEQ's Web site at: https://www.whitehouse.gov/administration/eop/ceq/foia. Promulgated in 1977, 42 FR 65158 (Dec. 30, 
1977), they have not been revised since to reflect current law or CEQ's 
policy and practice of conducting its activities in an open manner and 
providing the public with accurate and timely information about its 
activities. Amendments to the FOIA, including the ``Openness Promotes 
Effectiveness in our National Government Act of 2007'' (OPEN Government 
Act of 2007), Public Law 110-175, 121 Stat. 2524 (Dec. 31, 2007) and 
the ``Electronic Freedom of Information Act Amendments of 1996'' (1996 
Act), Public Law 104-231, 110 Stat. 3048 (Oct. 2, 1996), require 
changes in CEQ FOIA practices to promote openness and transparency in 
government, provide for public access to information in an electronic 
format and ensure a prompt and effective response to the public's 
requests for information. In addition, the Freedom of Information 
Reform Act of 1986 (1986 Act), Public Law 99-570, 100 Stat. 3207 
(1986), the DOJ's ``New FOIA Fee Waiver Policy Guidance'' (April 2, 
1987) and the OMB's Uniform FOIA Fee Schedule and Guidelines, 52 FR 
10012, March 27, 1987, established pursuant to the FOIA, require 
amendments to the FOIA fee provisions, including a method for computing 
fees that is based upon the classification of the requester and the 
base pay of the employee making the search and a provision for waiving 
fees. Finally, the Presidential Memorandum of January 21, 2009, 
``Transparency and Openness,'' 74 FR 4685, and the Attorney General's 
March 19, 2009 FOIA policy guidance have advised Federal agencies to 
apply a presumption of disclosure in FOIA decision-making. The Attorney 
General's guidance further advises that agencies should release 
information to the fullest extent of the law, including information 
that may be legally withheld, provided there is no foreseeable harm to 
an interest protected by an exemption or the disclosure is not 
prohibited by law.
    Consistent with these laws and guidance, CEQ undertook a 
comprehensive review of its FOIA regulations and, as a result proposes 
to revise its regulations to more clearly reflect current law and CEQ's 
current organizational structure, record system configuration and FOIA 
policy and practice and to eliminate outdated regulatory provisions. 
CEQ has modeled many of the provisions in today's rules on similar 
regulations previously adopted by other Federal agencies. Thus, many 
are identical to or closely resemble the requirements adopted by other 
Federal agencies, and as such represent regulatory ``best practices'' 
concerning FOIA procedures. The fee provisions reflect OMB's FOIA fee 
provisions. Additional provisions reorganize and renumber current FOIA 
regulations to reflect and implement the FOIA amendments referenced 
above.
    CEQ's policy of disclosure follows the Presidential Memorandum and 
the Attorney General's guidance. Congress established CEQ to advise the 
President on matters of environmental policy. Therefore, members of the 
public should be advised that communications between CEQ and the 
President (and their staffs) may be confidential and thus may not be 
released if they fall within a FOIA exemption. However, based on the 
recommendation of the CEQ FOIA Officer or Appeals Officer, CEQ 
considers the release of an entire record, even if it comes within an 
exemption or contains policy advice, if its disclosure would not impair 
Executive Branch policymaking processes or CEQ's participation in 
decision-making. CEQ requests comments on the following changes in 
particular.

Section-by-Section Analysis

    Section 1515.1. The FOIA, 5 U.S.C. 552, allows the public access to 
Federal agency records except those that are protected from release by 
nine specified exemptions. Language is added to the end of this section 
advising requesters that the regulations should be read together with 
the FOIA.
    Sections 1515.2(b) and 1515.2(c). Section 1515.2(b) and Section 
1515.2(c) are deleted in their entirety. Information about CEQ's 
purpose and functions is available online at https://www.whitehouse.gov/administration/eop/ceq. In 1995 Congress passed the Federal Reports 
Elimination and Sunset Act (Pub. L. 104-66) aimed at reducing paperwork 
in government, in part through the elimination of a list of reports 
identified in House Document No. 103-7. CEQ's Environmental Quality 
Report was listed on page 41. In addition, CEQ no longer maintains the 
``Quarterly Reports'' referred to in Section 1515.2(c).
    Sections 1515.3(a) and (c). These sections have been revised to 
reflect the current organizational structure of CEQ. Although the 
National Environmental Policy Act creates CEQ to have three members 
appointed by the President and confirmed by the Senate (42 U.S.C. 
4342), in accordance with CEQ annual appropriations, the Council 
consists of one member.
    Section 1515.3(e). This section has been deleted to reflect CEQ's 
current organizational structure. CEQ currently has an Associate 
Director for Communications but does not have a ``Public Affairs'' 
office.
    Section 1515.3(f). The hours of operation and CEQ telephone number 
and zip code have been updated in this section.
    Section 1515.4(a). The OPEN Government Act of 2007, amending 5 
U.S.C. 552(j), requires agencies to designate a Chief FOIA Officer who 
is responsible for the efficient and appropriate compliance with and 
implementation of the FOIA. At CEQ, this official may also serve as the 
FOIA Appeals Officer and, along with the FOIA Public Liaison designated 
in Subsection 1515.3(d), is designated to provide a clear point of 
contact for the public in dealing with the CEQ on FOIA matters. Thus, a 
new Section 1515.4(a) implements these laws and incorporates

[[Page 58578]]

the information described in the current Section 1515.5(a).
    Section 1515.4(b). The OPEN Government Act of 2007, amending 5 
U.S.C. 552(k)(6), requires agencies to designate a FOIA Public Liaison 
who reports to the Chief FOIA Officer and whose role is to provide 
information to the public regarding the status of its FOIA requests and 
to receive ``concerns about the service a requester has received from 
the [FOIA Requester Service] Center.'' The OPEN Government Act of 2007, 
at 5 U.S.C. 552(l), further directs the Public Liaison to ``assist, as 
appropriate, in reducing delays, increasing transparency and 
understanding of the status of requests, and resolving disputes.'' At 
CEQ, the FOIA Public Liaison is the FOIA Officer responsible for 
reviewing and making the initial determination on a FOIA request. Thus, 
a new Section 1515.4(b) is added to implement these laws and CEQ 
current practice.
    Section 1515.5(a). The language in this section has been deleted, 
and the information concerning CEQ's ``Chief FOIA Officer'' and 
``Appeals Officer'' has been moved to a new Section 1515.4. In 
addition, this section has been renamed ``Availability of Records.'' 
Pursuant to Section 2(c)(i) of E.O. 13392, CEQ maintains an online FOIA 
Requester Service Center ``which shall serve as the first place that a 
FOIA requester can contact to seek information concerning the status of 
the person's FOIA request and appropriate information about the 
agency's FOIA response.'' The 1996 FOIA Amendments, amending 5 U.S.C. 
552(a)(2), require agencies to make records that may be the subject of 
future requests, including computer telecommunications, created on or 
after November 1, 1996, available by electronic means. Accordingly, 
language is added to this section to implement these laws.
    Section 1515.5(b)(1). To reflect current CEQ practice, the language 
in this section is deleted in its entirety and replaced with the 
process the public follows when requesting information from CEQ. Like 
the original section, the new Section 1515.5(b)(1) requires all 
requests to be in writing and provides updated address and telephone 
contact information. It has also been revised to add language notifying 
requesters that they may submit FOIA requests via e-mail or facsimile.
    Section 1515.5(b)(2). The first two sentences of this section are 
deleted in their entirety, and the information contained in these 
deletions is reorganized and stated in Section 1515.5(b)(1). The 
language in current Section 1515.5(b)(3) is moved to this section. 
Additionally, the 1996 Amendments, amending 5 U.S.C. 552(a)(3)(B), 
require agencies to provide records in the form or format requested 
``if the record is readily reproducible by the agency in that form or 
format.'' Accordingly, language is added to this section notifying 
requesters to specify the form or format in which they wish to receive 
their response; otherwise CEQ will produce the request in the form or 
format most accessible to CEQ. Requesters are advised that FOIA 
requests themselves are part of CEQ's agency records subject to public 
release under FOIA.
    Section 1515.5(b)(3). The language in this section has been 
reorganized and incorporated into Section 1515.5(b)(2). In addition, 
the OPEN Government Act of 2007, amending 5 U.S.C. 
552(a)(6)(B)(iii)(III), grants agencies the authority to consult with 
another agency with a substantial interest in the determination of the 
request. The 1996 Amendments, amending 5 U.S.C. 552(a)(6)(D)(i) and 
(ii), allow agencies to provide for multitrack processing of requests 
for records based on the amount of time and/or work involved in 
processing of requests and to allow a FOIA requester whose request does 
not qualify for the fastest multitrack processing an opportunity to 
limit the scope of the request in order to qualify for faster 
processing. Thus language is added to this section to implement these 
amendments.
    Section 1515.5(b)(5). The OPEN Government Act of 2007, amending 5 
U.S.C. 552(a)(6)(A), provides that the statutory time period for 
determination commences ``on the date on which the request is first 
received by the appropriate component of the agency, but in any event 
not later than ten days after the request is first received by any 
component of the agency that is designated in the agency's regulations 
under this section to receive requests.'' The language in the current 
Section 1515.5(b)(5) is deleted to reflect current law. In addition, 
the new Section 1515.6 contains new language notifying requesters that 
the determination period begins on the date CEQ receives the request.
    Section 1515.6(a). This section renumbers and revises current 
Section 1515.5(c)(1). The 1996 Act, amending 5 U.S.C. 552(a)(6)(A)(i), 
lengthened the time within which agencies must respond to FOIA requests 
from 10 to 20 working days. Moreover, the OPEN Government Act of 2007 
added Sections 552(a)(6)(A)(ii)(I) and (II) to the FOIA which provide 
authority for agencies to toll the 20 day determination period. 
Specifically, an agency ``may make one request to the requester for 
information and toll'' the statutory time period ``while it is awaiting 
such information that it has reasonably requested from the requester.'' 
It may also toll the time period ``if necessary to clarify with the 
requester issues regarding fee assessment.'' There is no limit given 
for the number of times the agency may go back to a requester to 
clarify issues regarding fee assessments, which may need to be done in 
stages as the records are being located and processed. In both 
situations, the requester's response to the agency's request ``ends the 
tolling period.'' Accordingly, the time limit for determination is 
revised and language is added to this subsection to implement these 
laws.
    Section 1515.6(b). The OPEN Government Act of 2007, which added 5 
U.S.C. 552(a)(7), requires agencies to assign a tracking number for 
each request that will require more than 10 days to process and provide 
requesters with information regarding the status of their request. It 
further requires agencies to establish a phone number or an internet 
site to enable requesters to inquire about the status of their request. 
Accordingly, this section has been added to implement these 
requirements.
    Section 1515.6(c). This section renumbers current Section 
1515.5(c)(2).
    Section 1515.6(d). This section renumbers and revises current 
Section 1515.5(c)(4). The 1996 Act and the OPEN Government Act of 2007, 
amending 5 U.S.C. 552(a)(2), require agencies in the event of a denial, 
in whole or in part, to indicate the extent of any deletion made in 
released records and publicly available records and to inform the 
requester of the estimated volume of material withheld. Thus language 
is added to this section to implement these laws.
    Section 1515.7. The 1996 Act, amending 5 U.S.C. 552(a)(6)(E)(i), 
directs agencies to provide for expedited processing of FOIA requests 
in cases of ``compelling need'' and in other cases, if any, determined 
by the agency. Thus this new subsection 1515.7 is added which tracks 
the language of the FOIA amendments. The FOIA also sets out procedures 
for handling requests for expedited processing and for appeals which 
are followed and incorporated in this section.
    Section 1515.8(a). This section renumbers and revises current Sec.  
1515.5(d)(1) and explains the appeals process to a FOIA request 
determination. In order to streamline CEQ's FOIA process and provide 
prompt responses, the time period for

[[Page 58579]]

filing an appeal is reduced from 45 to 30 days.
    Section 1515.8(b). This section is added to advise requesters that 
they may file written appeals via e-mail or facsimile.
    Section 1515.8(d). This section renumbers and revises current Sec.  
1515.5(d)(4). Language is added to notify requesters that the 20 day 
appeal determination period does not include Saturdays, Sundays, and 
Federal holidays.
    Section 1515.9. This section renumbers and revises current Section 
1515.5(e). The FOIA at 5 U.S.C. 552(a)(6)(B) and Section 1515.5(e) of 
CEQ's current regulations permit CEQ, upon written notice to the 
requester, to extend the time limit for acting on a request or appeal 
if ``unusual circumstances'' exist. The 1996 Act, amending 5 U.S.C. 
552(a)(6)(B)(ii), expanded this authority to permit agencies to further 
extend the response time by notifying the requesters and providing them 
with an opportunity to either limit the scope of their request so that 
no extension is needed, or to arrange with the agency an alternative 
time frame for processing the request. Accordingly, a new Sec.  
1515.9(b) is added to implement this law, and the definition of 
``unusual circumstances'' currently at Sec.  1515.5(e)(i), (ii) and 
(iii) is renumbered and restated in a new Sec.  1515.9(c).
    Section 1515.10(a). The 1996 Act, amending 5 U.S.C. 522(a)(3)(C) 
and (D) requires agencies to provide requested records in any form or 
format requested, if the record is readily reproducible by the agency 
in that form or format. Agencies must make reasonable efforts to 
maintain their records in forms or formats that are reproducible 
electronically and to search for requested records in electronic form 
or format, except when such efforts would significantly interfere with 
the operation of the agency's automated information system. 
Accordingly, language is added to this section to implement this law. 
Language is also added to this section advising requesters that CEQ 
will make requested materials available at its online FOIA Center.
    Section 1515.10(b). The OPEN Government Act of 2007, amending 5 
U.S.C. 522(b), amends the current FOIA provision listing exemptions and 
generally requiring agencies to indicate directly ``on the released 
portion of the record'' the amount of information deleted, by adding 
the requirement that agencies also indicate ``the exemption under which 
the deletion is made.'' Accordingly, this section is added as Sec.  
1515.10(b) which follows the language of this law.
    Section 1515.10(c). In a Memorandum to Heads of Executive 
Departments and Agencies dated January 21, 2009, the President directed 
Federal agencies to implement the FOIA with a presumption of openness 
and in favor of disclosure. CEQ is committed to operating transparently 
and subject to public scrutiny and accountability. Accordingly, this 
section is deleted. CEQ's relationship with the President is referenced 
in the Preamble of the Notice of Proposed Rulemaking.
    Section 1515.11. The current Sec.  1515.15 regarding ``Costs'' is 
deleted in its entirety, and is replaced with updated fee structure and 
policy, Sec. Sec.  1515.11 through 1515.15, to be consistent with ``The 
Freedom of Information Reform Act of 1986,'' Public Law 99-570, 1801-
1804, 100 Stat. 3207, 3207-48 (1986), which established the current 
FOIA fee structure and waiver standard; and subsequent policy guidance 
and guidelines issued by the U.S. Department of Justice, ``New FOIA Fee 
Waiver Policy Guidance'' (4-2-87), and the Office of Management and 
Budget, ``Uniform Freedom of Information Act Fee Schedule and 
Guidelines.'' 52 FR 1007, March 27, 1987. CEQ's fee structure includes 
a method for computing fees that is based upon the classification of 
the requester and the base pay of the employee making the search, an 
increase of copying costs from $0.10 to $0.15 per page, and provides 
for waiver of fees.
    Section 1515.16. This new proposed section advises requesters that 
CEQ's FOIA regulations do not ``entitle any person, as of right, to any 
service or to the disclosure of any records to which such person is not 
entitled under the FOIA.''

Regulatory Analysis and Notices

Administrative Procedure Act

    This proposed rulemaking is in compliance with the Administrative 
Procedure Act (5 U.S.C. 553) and allows for a 30-day comment period. 
Interested persons are invited to submit written comments to CEQ on 
this proposed regulation, to be received within 30 days of publication 
of this Notice. CEQ will review all comments received and consider any 
modifications to this proposal which appear warranted.

Regulatory Flexibility Act

    For purposes of the Regulatory Flexibility Act (RFA) (5 U.S.C. 
chapter 6), the proposed rule, if adopted, will not have a significant 
economic impact on a substantial number of small entities. The proposed 
rule addresses only the procedures to be followed: (1) To request CEQ 
records; or (2) in the production or disclosure of CEQ materials and 
information in litigation where CEQ is not a party. Under the FOIA, 
agencies may recover only the direct costs of searching for, reviewing, 
and duplicating the records processed for certain categories of 
requesters. CEQ's proposed fee structure is in accordance with DOJ 
guidelines and based upon OMB fee schedules which calculate costs based 
upon the category of requester and kind of employee duplicating the 
records. Thus, fees assessed by CEQ are nominal and will not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the RFA.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 25, subchapter II), the proposed rule would not significantly 
or uniquely affect small governments and would not result in increased 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more (as adjusted for 
inflation).

Executive Order 12866

    In issuing this proposed regulation, CEQ has adhered to the 
regulatory philosophy and the applicable principles of regulation as 
set forth in Section 1 of Executive Order 12866, Regulatory Planning 
and Review, 58 FR 51735. This proposed rule has not been reviewed by 
the Office of Management and Budget under that Executive Order since it 
is not a significant regulatory action within the meaning of the 
Executive Order.

Executive Order 12988

    CEQ has reviewed this proposed regulation in light of Section 3 of 
Executive Order 12988, Civil Justice Reform, and certifies that it 
meets the applicable standards provided therein.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this proposed regulation does not impose any reporting or 
recordkeeping requirements.

National Environmental Policy Act (NEPA)

    The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
4321 et seq., and the CEQ regulations which implement the NEPA, 40 CFR 
1500-1508, impose requirements for considering the environmental 
impacts

[[Page 58580]]

of proposed agency decisions and actions. They provide for each agency 
to develop a list of categories of actions called categorical 
exclusions (CEs) that are determined through agency experience to 
typically have no significant environmental impact and thus may 
generally be excluded from detailed analysis and documentation. It 
further directs agencies to prepare an environmental impact statement 
(EIS) for ``major Federal actions significantly affecting the quality 
of the human environment.'' If an action may have a significant impact 
and the agency has not decided to prepare an EIS, the agency must 
prepare an environmental assessment (EA). If, as a result of this 
assessment, the agency makes a Finding of No Significant Impact 
(FONSI), no further action is necessary. If it will have a significant 
effect, then the agency uses the EA to develop an EIS.
    Overview: CEQ's NEPA regulations do not have a CE for either the 
dissemination of information under the FOIA or the preparation, 
revision, and adoption of regulations, directives, and other guidance 
documents. Thus, CEQ includes in this Notice an EA to determine whether 
these proposed revisions to CEQ's FOIA regulations may or may not have 
a significant impact on the human environment. Because as set forth 
below, the proposed rules pertain solely to procedures regarding the 
dissemination of information and will have not only a minimal impact on 
CEQ resources, including paper consumption, but will conserve resources 
and improve the FOIA process, CEQ proposes a finding that the proposed 
regulations will have no significant impact on the human environment 
and therefore, an EIS is not required.
    Purpose and Need: As set forth above in the Supplemental 
Information section, CEQ's FOIA regulations were adopted in 1977 and 
have not been updated since to reflect FOIA amendments and CEQ policy 
and practice. As such, the current regulations fail to reflect current 
FOIA requirements including timelines for CEQ response to requests, 
provision of and access to online resources, increased use of 
technology to reduce paperwork including the use of electronic formats, 
practices with respect to aggregating requests, requests for expedited 
processing, and implementation of multi-track processing. CEQ's FOIA 
Improvement Plan, dated September 6, 2006, identified the need to amend 
these regulations, but this action has been delayed by staffing 
constraints. CEQ is undertaking revisions at this time in response to 
the President's Memorandum, amendments to the FOIA, and the Department 
of Justice Attorney General guidelines referenced above in the 
SUPPLEMENTARY INFORMATION section.
    Proposed Action and Alternatives: A summary of the proposed action 
is set forth above in the Summary section. Under a ``no action'' 
alternative, CEQ would continue to operate under its 1977 regulations 
and the current law, addressing inconsistencies between the two 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 CEQ procedures and the law that are obviated by 
updating CEQ's regulations.
    CEQ considered an alternative of a more expansive regulation, which 
would include statements of policy in this Federal Register notice and 
details of CEQ's internal organization under its FOIA Improvement Plan 
described in its FOIA Annual Reports.
    The CEQ preferred alternative is as proposed in this Federal 
Register Notice which reflects CEQ's current practice and procedure at 
a level of detail that is appropriate for agency FOIA regulations. CEQ 
has an online reading room which it continues to update and by which it 
provides the public information concerning its operations thereby 
eliminating paperwork and streamlining its FOIA operations. CEQ has 
designated FOIA officials and staff to improve processing of and 
response to FOIA requests, which allows CEQ to deliver the FOIA product 
in a manner which is consistent with law and regulation and meets the 
requirements and expectations of the public. For example, the final 
regulations would ensure the public has the opportunity to obtain 
information in the format of its choice (including electronic formats) 
when it is feasible for CEQ to produce the information in the requested 
manner.
    Environmental Effects of Alternatives: CEQ's FOIA implementation 
affects the environment primarily through use of paper and energy for 
copying and distribution. CEQ's use of paper and energy has remained 
within the range typical of the operations of a small office. Prior to 
the implementation of its online reading room, CEQ responded to 
requests by providing paper copies of documents requested. This output 
has ranged from approximately 7,000 to 75,000 pages of records for one 
request. CEQ has also responded to requests for certain e-mails by 
printing them out on recycled paper, scanning them into portable 
document format (.pdf), and forwarding them to the requester. By 
adopting the proposed regulations, CEQ is codifying its current 
practice of increasing the use of electronic formats in response to 
requests, which has reduced expenditure of CEQ resources, including 
employee time and paperwork. To place this paper use in context, the 
typical office worker uses about 10,000 sheets of copier paper per 
year. DOE, Lawrence Berkeley Laboratory, University of California, 
Environmental Energy Technologies Division, Facts about U.S. Paper Use 
(https://eetd.lbl.gov/paper/ideas/html/uspaperuse.htm).
    Decision: Based on the analysis above, CEQ proposes to find that 
implementation of the proposed regulations in this notice would reduce 
the paperwork and resources CEQ expends in response to FOIA requests, 
streamline CEQ's FOIA procedures, and make CEQ more accessible and 
responsive to the public. Thus, there would be no significant impacts 
associated with implementation of the proposed action. CEQ makes this 
Finding of No Significant Impact and no further environmental 
assessment is required. Public comment is invited on this environmental 
assessment.
    List of Agencies and Persons Consulted: Department of Justice, 
Office of Information and Privacy and the Office of the Federal 
Environmental Executive have reviewed and commented on this EA and 
Notice of Proposed Rulemaking.

List of Subjects in 40 CFR Part 1515

    Administrative practice and procedures, Conflict of interests, 
Freedom of information, Courts, Government employees, Records, 
Subpoenas, Testimony.

    Accordingly, for the reasons set forth in the preamble, the Council 
on Environmental Quality proposes to revise 40 CFR 1515 to read as 
follows:

PART 1515--FREEDOM OF INFORMATION ACT PROCEDURES

Sec.

Purpose

1515.1 FOIA procedures.

Organization of CEQ

1515.2 About the Council on Environmental Quality (CEQ).
1515.3 CEQ organization.
1515.4 CEQ FOIA Officials.

Procedures for Requesting Records

1515.5 Making a Freedom of Information Act request.
1515.6 CEQ's response to a request.
1515.7 Expedited processing.
1515.8 Appeals.

[[Page 58581]]

1515.9 Extending CEQ's time to respond.

Availability of Information

1515.10 Obtaining available information.

Costs

1515.11 Definitions.
1515.12 Fees in general.
1515.13 Fees for categories of requesters.
1515.14 Other charges.
1515.15 Payment and waiver.
1515.16 Other rights and services.
1515.17-1515.19 [Reserved]

    Authority:  5 U.S.C. 552, as amended by Public Law 93-502, 
Public Law 99-570, Public Law 104-231, Public Law 110-175; E.O. 
13392; Pres. Mem. 74 FR 4685. Source: 42 FR 65158, Dec. 30, 1977, 
unless otherwise noted.

Purpose


Sec.  1515.1  FOIA procedures.

    The Freedom of Information Act (5 U.S.C. 552), as amended, commonly 
known as FOIA, is a Federal law that creates a procedure for any person 
to request official documents and other records from United States 
Government agencies. The law requires every Federal agency to make 
available to the public the material requested, unless the material 
falls under one of the limited exemptions stated in Section 552(b) of 
the Act. These procedures explain how the Council on Environmental 
Quality (CEQ)--one of several agencies in the Executive Office of the 
President--will carry out the FOIA. They are written from the 
standpoint of an FOIA requester and should be read together with the 
FOIA, which provides additional information about access to records 
maintained by CEQ. This information is furnished for the guidance of 
the public and in compliance with the requirements of Section 552 of 
title 5, United States Code, as amended.

Organization of CEQ


Sec.  1515.2  About the Council on Environmental Quality (CEQ).

    The Council on Environmental Quality (``CEQ'' or ``the Council'') 
was created by the National Environmental Policy Act of 1969, as 
amended (42 U.S.C. 4321 through 4347). The Council's authority is 
primarily derived from that Act, the Environmental Quality Improvement 
Act of 1970, as amended (42 U.S.C. 4371-4374), Reorganization Plan No. 
1 of 1977 (July 15, 1977), and Executive Order 11514, ``Protection and 
Enhancement of Environmental Quality,'' March 5, 1970, as amended by 
Executive Order 11991, May 24, 1977.


Sec.  1515.3  CEQ organization.

    (a) The Council is made up of a Chair appointed by the President 
and subject to approval by the Senate who serves in a full-time 
capacity. Congress has allowed CEQ to consist of a Council of one 
member who serves as Chairman or Chair.
    (b) The National Environmental Policy Act and the Environmental 
Quality Improvement Act give the Council the authority to hire any 
officers and staff that may be necessary to carry out responsibilities 
and functions specified in these two Acts. Also, the use of consultants 
and experts is permitted.
    (c) In addition to the Chair, the Council has program and legal 
staff.
    (d) The Council has no field or regional offices.
    (e) The Council is located at 722 Jackson Place, NW., Washington, 
DC 20503. Office hours are 9 a.m.-5:30 p.m., Monday through Friday, 
except Federal holidays. To meet with any of the staff, please write or 
phone ahead for an appointment. The main number is 202-456-6224.


Sec.  1515.4  CEQ FOIA Officials.

    (a) The Chair shall appoint a Chief Freedom of Information Act 
Officer (Chief FOIA Officer) who is responsible for overseeing the 
Council's administration of the Freedom of Information Act and for 
receiving, routing and overseeing the processing of all Freedom of 
Information requests as set forth in these regulations. The Chair shall 
appoint an Appeals Officer, who is responsible for processing and 
acting upon any appeals and may designate one or more CEQ officials, as 
appropriate, as FOIA Officers authorized to oversee and process FOIA 
requests. The Chief FOIA Officer may serve as the Appeals Officer.
    (b) The Chief FOIA officer shall designate a FOIA Public Liaison 
who is the supervisory official to whom a FOIA requester can raise 
concerns about the service the FOIA requester has received from the CEQ 
FOIA Center, described in section 1515.5(a), following an initial 
response from the staff of the CEQ FOIA Center staff. The FOIA Public 
Liaison shall assist, as appropriate, in reducing delays and increasing 
understanding of the status of requests. The Chief FOIA officer shall 
also designate a CEQ FOIA Officer responsible for overseeing CEQ's day-
to-day administration of the FOIA and for receiving, routing, and 
overseeing the processing of all FOIA requests.

Procedures for Requesting Records


Sec.  1515.5  Making a Freedom of Information Act request.

    (a) Availability of records. The Council maintains a World Wide Web 
site, http:/www.whitehouse.gov/administration/eop/ceq, and an online 
Freedom of Information Act Requester Service Center (``Center''), 
https://www.whitehouse.gov/administration/eop/ceq/foia. From the Center, 
a requester can find contact information regarding the CEQ's FOIA 
Public Liaison, as defined in section 1515.4(b), and access CEQ's 
Online Reading Room where CEQ makes available records pertaining to 
matters within the scope of 5 U.S.C. 552(a)(2), as amended, and 
environmental issues and other documents that, because of the nature of 
their subject matter, are likely to be the subject of FOIA requests. To 
save both time and money, CEQ strongly urges requesters to review 
documents currently available from the Center's Online Reading Room 
before submitting a request.
    (b) Requesting information from the Council. (1) Requesters must 
make a Freedom of Information Act request in writing. For quickest 
possible handling, it should be sent via e-mail to: efoia@ceq.eop.gov 
and must include in the subject line of the e-mail message: ``Freedom 
of Information Act Request.'' Written requests may also be faxed to 
(202) 456-0753 or addressed and mailed to: Council on Environmental 
Quality, Executive Office of the President, 722 Jackson Place, NW., 
Washington, DC 20503. Requesters should mark both the request letter 
and the envelope ``Freedom of Information Act Request'' and include 
their name, address, and sufficient contact information to allow follow 
up regarding the scope and status of your request.
    (2) The request should identify or reasonably describe the desired 
record. It should be as specific as possible, so that the item can be 
readily found. Blanket requests, such as requests for ``all materials 
relating to'' a specified subject are not recommended. Requesters 
should specify the preferred form or format (including electronic 
format) for the response. CEQ will accommodate such requests, if the 
record is readily reproducible in that form or format. Please be aware 
that FOIA requests and responses may themselves be made available for 
public inspection.
    (3) The CEQ FOIA Officer is responsible for acting on all initial 
requests; however, he or she may consult and refer, pursuant to section 
552(a)(6)(B)(iii)(III) of the FOIA, with

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another agency if he or she determines that that agency is better able 
to act on the request. Whenever the CEQ FOIA Officer refers all or any 
part of the responsibility for responding to a request to another 
agency, he or she will notify the requester of the referral, the name 
of the agency and agency official to whom it has been referred, and 
which portion of the request has been referred. Unless a request is 
deemed ``expedited'' as set forth in section 1515.7 below, the CEQ FOIA 
Officer will respond to requests in order of receipt. CEQ may use two 
or more processing tracks by distinguishing between simple and more 
complex requests based on the amount of time and work needed to process 
the request. CEQ may provide requesters on a slower track an 
opportunity to limit the scope of their request in order to qualify for 
faster processing.
    (4) The Council will make a reasonable effort to assist with 
defining the request to eliminate extraneous and unwanted materials and 
to keep search and copying fees to a minimum. If budgetary constraints 
exist, the requester should indicate the maximum fee he or she is 
prepared to pay to acquire the information. (See also Sec.  1515.11)
    (5) The Freedom of Information Act does not require a government 
agency to create or research information; rather, it only requires that 
existing records be made available to the public.


Sec.  1515.6  CEQ's response to a request.

    (a) Upon receipt of any written request for information or records, 
under the Act, the CEQ FOIA Officer or his or her designee will decide 
how to respond to--or ``make an initial determination on''--the request 
within 20 days (excepting Saturdays, Sundays and Federal holidays) from 
the date CEQ receives the request. The CEQ FOIA Officer will provide 
written notification of the determination, including, if applicable, 
notification that the request has been referred to another agency for 
consultation as set forth above in Section 1515.5(b)(3). CEQ may make 
one request to the requester for information and toll the 20-day period 
while it is awaiting such information that it has reasonably requested 
from the requester. It may also toll the 20-day period if necessary to 
clarify with the requester issues regarding fee assessment. In either 
case, CEQ's receipt of the requester's response to its request for 
information or clarification ends the tolling period.
    (b) Requests received by the CEQ FOIA Officer or his or her 
designee will be assigned an individualized tracking number, if they 
will take more than 10 days to process. Requesters may call the FOIA 
Public Liaison at (202) 456-6224 and, using the tracking number, obtain 
information about the request, including the date on which CEQ 
originally received the request and an estimated date on which CEQ will 
complete action on the request.
    (c) If it is appropriate to grant the request, a staff member will 
immediately collect the requested materials in order to accompany, 
wherever possible, the Freedom of Information Officer's letter 
conveying the decision.
    (d) If a request is denied in part or in full, the letter conveying 
the decision will be signed by the CEQ FOIA Officer, and will include: 
The reasons for any denial, including any FOIA exemption(s) applied by 
the FOIA Officer in denying the request; an estimate of the volume of 
records or information withheld, in number of pages or in some other 
reasonable form of estimation. This estimate does not need to be 
provided if the volume is otherwise indicated through exemptions on 
records disclosed in part, or if providing an estimate would harm an 
interest protected by an applicable exemption; and the procedure for 
filing an appeal.


Sec.  1515.7  Expedited processing.

    (a) Requests and appeals will be taken out of order and given 
expedited treatment whenever it is determined that they involve:
    (1) 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
    (2) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person primarily engaged in 
disseminating information.
    (b) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (c) A requester who seeks expedited processing must submit a 
written statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. For example, a requester within the 
category described in paragraph (a)(2) of this section, if not a full-
time member of the news media, must establish that he or she is a 
person whose main professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. A 
requester within category (a)(2) of this section 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. Formal certification may be waived as a 
matter of administrative discretion.
    (d) Within 10 days of its receipt of a request for expedited 
processing, the CEQ FOIA Officer will decide whether to grant it and 
will notify the requester of the decision. If a request for expedited 
treatment is granted, the request will be given priority and will be 
processed as soon as practicable. If a request for expedited processing 
is denied, any appeal of that decision will be acted on expeditiously.


Sec.  1515.8  Appeals.

    (a) The requester may appeal an adverse determination, in any 
respect, to the CEQ FOIA Appeals Officer. Any appeal must be received 
by CEQ within 60 days of the date on the CEQ letter denying the 
request.
    (b) Appeals must be in writing and may be sent via e-mail to: 
efoia@ceq.eop.gov. They may also be sent via facsimile to: (202) 456-
0753 or via U.S. Mail addressed to: FOIA Appeals Officer, Council on 
Environmental Quality, Executive Office of the President, 722 Jackson 
Place, NW., Washington, DC 20503.
    (c) The appeal letter should specify the records requested and ask 
the Appeals Officer to review the determination made by the Freedom of 
Information Officer. The letter should explain the basis for the 
appeal.
    (d) The Appeals Officer will decide the appeal--or ``make a final 
determination''--within 20 working days (excepting Saturdays, Sundays 
and Federal holidays) from the date CEQ receives the appeal. The 
Appeals Officer (or designee) will send a letter to the requester 
conveying the decision as soon as it is made. If an appeal is denied, 
in part or in whole, the letter will also include the provisions for 
judicial review.


Sec.  1515.9  Extending CEQ's time to respond.

    (a) In unusual circumstances as defined in paragraph (c) of this 
section, the time limits for responding to a request (Sec. Sec.  
1515.6(a) and 1515.8(d)) may be extended by the Council for not more 
than 10 working days. Extensions may be granted by the CEQ FOIA Officer 
in the case of initial requests and by the Appeals Officer in the case 
of any appeals. The extension period may be split between the initial 
request and the appeal but may not exceed 10 working days overall. 
Extensions will be

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confirmed in writing and set forth the reasons for the extension and 
the date that the final determination is expected.
    (b) With respect to a request for which a written notice under this 
section extends the time limits prescribed under section 1515.6(a), the 
CEQ FOIA Officer will notify the requester, if the request cannot be 
processed within the time limit specified in Sec.  1515.6(a) and 
provide an opportunity to limit the scope of the request, so that it 
may be processed within that time limit or an opportunity to arrange an 
alternative time frame for processing the request or a modified 
request. A requester's refusal to reasonably modify the request or 
arrange such an alternative time frame will be considered as a factor 
in determining whether exceptional circumstances exist for purposes of 
5 U.S.C. 552(a)(6)(C). When CEQ reasonably believes that a requester, 
or a group of requesters, has submitted a request constituting a single 
request that would otherwise satisfy the unusual circumstances 
specified under this section, CEQ may aggregate those requests for 
purposes of this paragraph. Multiple requests involving unrelated 
matters will not be aggregated.
    (c) The term ``unusual circumstances'' means:
    (1) The need to search for and collect the requested records from 
establishments that are separate from the office processing the 
request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (3) The need for consultation, which will be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.

Availability of Information


Sec.  1515.10  Obtaining available information.

    (a) When a request for information has been granted in whole or in 
part, CEQ will notify the requester in writing, inform the requester in 
the notice of any fee charged under Sec.  1515.11 and will disclose 
records to the requester promptly on payment of any applicable fees. 
The requested material may be made available on CEQ's Online FOIA 
Center, https://www.whitehouse.gov/administration/eop/ceq/foia, and also 
in the form or format requested if the record is readily reproducible 
in that form or format with reasonable effort. When a form or format of 
the response is not requested, CEQ will respond in the form or format 
in which the document is most accessible to CEQ. ``Readily 
reproducible'' means, with respect to electronic format, that the 
requested record or records can be downloaded or transferred intact to 
a computer disk or other electronic medium using equipment currently in 
use by CEQ.
    (b) Records disclosed in part will be marked or annotated to show 
information deleted, unless doing so would harm an interest protected 
by an applicable exemption. The location of the information deleted 
will also be indicated in the record, if technically feasible.

Costs


Sec.  1515.11  Definitions.

    For purposes of these regulations:
    Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers the 
requester's or other person's commercial, trade, or profit interests.
    Direct costs means those costs incurred in searching for and 
duplicating (and, in the case of commercial use requests, reviewing) 
documents to respond to a FOIA request. Direct costs include, for 
example, salaries of employees who perform the work and costs of 
conducting large-scale computer searches.
    Duplicate means to copy records to be released to the FOIA 
requester. Copies can take the form of paper, audio-visual materials, 
or electronic records, among others.
    Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, that operates a program or programs of scholarly research.
    Non-commercial scientific institution means an institution that is 
not operated on a commercial basis and that operates solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry.
    Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience.
    Review means to examine a record to determine whether any portion 
of the record may be withheld and to process a record for disclosure, 
including by redacting it.
    Search for means look for and retrieve records covered by a FOIA 
request, including by looking page-by-page or line-by-line to identify 
responsive material within individual records.


Sec.  1515.12  Fees in general.

    CEQ shall charge fees that recoup the full allowable direct costs 
it incurs in responding to FOIA requests. CEQ may assess charges for 
time spent searching for records even if CEQ fails to locate the 
records or if the records are located and determined to be exempt from 
disclosure. In general, CEQ shall apply the following fee schedule, 
subject to Sec. Sec.  1515.13 through 1515.15:
    (a) Manual searches. Time devoted to manual searches shall be 
charged on the basis of the salary of the employee(s) conducting the 
search (basic hourly rate(s) of pay for the employee(s), plus 16 
percent).
    (b) Electronic searches. Fees shall reflect the direct cost of 
conducting the search. This will include the cost of operating the 
central processing unit for that portion of operating time that is 
directly attributable to searching for and printing records responsive 
to the FOIA request and operator/programmer salary attributable to the 
search.
    (c) Record reviews. Time devoted to reviewing records shall be 
charged on the same basis as under paragraph (a) of this section, but 
shall only be applicable to the review of records located in response 
to commercial use requests.
    (d) Duplication. Fees for copying paper records or for printing 
electronic records shall be assessed at a rate of $.15 per page. For 
other types of copies such as disks or audio visual tapes, CEQ shall 
charge the direct cost of producing the document(s). If total costs are 
expected to exceed $25, the FOIA Officer shall notify the requester, 
unless the requester has indicated in advance a willingness to pay fees 
as high as those anticipated. If a requester wishes to limit costs, the 
FOIA Officer shall provide the requester an opportunity to reformulate 
the request in order to reduce costs. If the requester reformulates a 
request, it shall be considered a new request and the 20-day period 
described in Sec.  1515.6(a) shall be deemed to begin when the FOIA 
Officer receives the request.
    (e)(1) Advance payments required. The FOIA Officer may require a 
requester to make an advance deposit of up to the amount of the entire 
anticipated fee before the FOIA Officer begins to process the request 
if:
    (i) The FOIA Officer estimates that the fee will exceed $250; or

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    (ii) The requester has previously failed to pay a fee in a timely 
fashion.
    (2) When the FOIA Officer requires a requester to make an advance 
payment, the 20-day period described in Sec.  1515.6(a) shall begin 
when the FOIA Officer receives the payment.
    (f) No assessment of fee. CEQ shall not charge a fee to any 
requester if:
    (1) The cost of collecting the fee would be equal to or greater 
than the fee itself; or
    (2) After the effective date of these regulations CEQ fails to 
comply with a time limit under the Freedom of Information Act for 
responding to the request for records where no unusual or exceptional 
circumstances apply.


Sec.  1515.13  Fees for categories of requesters.

    CEQ shall assess fees for certain categories of requesters as 
follows:
    (a) Commercial use requesters. In responding to commercial use 
requests, CEQ shall assess fees that recover the full direct costs of 
searching for, reviewing, and duplicating records.
    (b) Educational and non-commercial scientific institutions. CEQ 
shall provide records to requesters in this category for the cost of 
duplication alone, excluding charges for the first 100 pages. To 
qualify for inclusion in this fee category, a requester must show that 
the request is authorized by and is made under the auspices of a 
qualifying institution and that the records are sought to further 
scholarly research, not an individual goal.
    (c) Representatives of the news media. CEQ shall provide records to 
requesters in this category for the cost of duplication alone, 
excluding charges for the first 100 pages.
    (d) All other requesters. CEQ shall charge requesters who do not 
fall within paragraphs (a) through (c) of this section fees that 
recover the full direct cost of searching for and duplicating records, 
excluding charges for the first 100 pages of reproduction and the first 
two hours of search time.


Sec.  1515.14  Other charges.

    CEQ may apply other charges, including the following:
    (a) Special charges. CEQ shall recover the full cost of providing 
special services, such as sending records by express mail, to the 
extent that CEQ elects to provide them.
    (b) Interest charges. CEQ may begin assessing interest charges on 
an unpaid bill starting on the 31st day following the day on which the 
FOIA Officer sent the billing. Interest shall be charged at the rate 
prescribed in 31 U.S.C. 3717 and will accrue from the date of billing.
    (c) Aggregating requests. When the FOIA Officer reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a request into a series of requests for the 
purpose of avoiding fees, the FOIA Officer shall aggregate those 
requests and charge accordingly.


Sec.  1515.15  Payment and waiver.

    (a) Remittances. Payment shall be made in the form of check or 
money order made payable to the Treasury of the United States. At the 
time the FOIA Officer notifies a requester of the applicable fees, the 
Officer shall inform the requester of where to send the payment.
    (b) Waiver of fees. CEQ may waive all or part of any fee provided 
for in Sec. Sec.  1515.12 and 1515.13 when the FOIA Officer deems that 
disclosure of the information is in the general public's interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester. In 
determining whether a fee should be waived, the FOIA Officer may 
consider whether:
    (1) The subject matter specifically concerns identifiable 
operations or activities of the government;
    (2) The information is already in the public domain;
    (3) Disclosure of the information would contribute to the 
understanding of the public-at-large as opposed to a narrow segment of 
the population;
    (4) Disclosure of the information would significantly enhance the 
public's understanding of the subject matter;
    (5) Disclosure of the information would further a commercial 
interest of the requester; and
    (6) The public's interest is greater than any commercial interest 
of the requester.


Sec.  1515.16  Other rights and services.

    Nothing in this subpart will be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.


Sec. Sec.  1515.16-1515.19  [Reserved]

    Dated: October 23, 2009.
Nancy H. Sutley,
Chair, Council on Environmental Quality.
[FR Doc. E9-27234 Filed 11-12-09; 8:45 am]
BILLING CODE 3125-W9-P