§ 2.108 Administrative appeals.

(a) Appeals of adverse determinations. To appeal an adverse determination, a requester must submit an appeal in writing within 90 calendar days from the date of the letter communicating the Agency's adverse determination, and by one of the following methods:

(1) EPA's FOIA submission website, linked to at www.epa.gov/foia;

(2) U.S. Mail sent to the following address: National FOIA Office, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW (2310A), Washington, DC 20460; or

(3) Overnight delivery service to National FOIA Office, U.S. Environmental Protection Agency, 1200 Pennsylvania NW, Room 7309C, Washington, DC 20460.

(b) Timing for administrative appeals submitted electronically. Requesters submitting appeals electronically must do so before 5 p.m. Eastern Time for the Agency to consider the appeal as received on that date, and appeals submitted electronically at or after 5 p.m. Eastern Time will be considered received by the National FOIA Office on the next business day.

(c) Content of administrative appeal. The appeal may include as much or as little related information as the requester wishes. The appeal must clearly identify the office's determination that is being appealed and the assigned request tracking number. For quickest handling of appeals sent via U.S. Mail or overnight delivery service, the requester must mark their appeal letter and its envelope with “Freedom of Information Act Appeal.”

(d) Authority to make decision on appeal. Unless the Administrator directs otherwise, the General Counsel or the General Counsel's delegate will act on behalf of the Administrator on all appeals under this section, except that:

(1) The Counsel to the Inspector General will act on any appeal where the Inspector General or the Inspector General's delegate has made the final adverse determination; however, if the Counsel to the Inspector General has signed the final adverse determination, the General Counsel or the General Counsel's delegate will act on the appeal;

(2) An adverse determination by the Administrator on an initial request will serve as the final action of the Agency; and

(3) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.

(e) Timing of decision on appeal. EPA will make the decision on the appeal in writing, normally within 20 working days of its receipt by the National FOIA Office.

(1) A decision affirming an adverse determination in whole or in part will contain a statement of the reason or reasons for the decision, including any FOIA exemption or exemptions applied, inform the requester of dispute resolution services offered by the Office of Government Information Service of the National Archives and Records Administration, and inform the requester of the FOIA provisions for judicial review of the decision.

(2) If the Agency reverses or modifies the adverse determination on appeal, the Agency will attach the requested information that the Agency determined on appeal to be releasable, or the Agency will return the request to the appropriate office so that the office may reprocess the request in accordance with the appeal decision.

(f) When appeal is required. If the requester wishes to seek judicial review of any adverse determination, the requester must first appeal that adverse determination under this section, except when EPA has not responded to the request within the applicable time-period. In such cases, the requester may seek judicial review without making an administrative appeal.

[88 FR 63024, Sept. 14, 2023]