[Federal Register Volume 63, Number 167 (Friday, August 28, 1998)]
[Proposed Rules]
[Pages 45982-45993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22971]
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FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 5
RIN 3067-AC75
Production or Disclosure of Information
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Proposed rule.
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SUMMARY: This proposed rule would give the public access to government
information and records maintained in an electronic format, provide for
expedited processing of certain requests, establish an ``electronic
reading room,'' eliminate an agency backlog of work as a justification
for delay in processing requests, require redacted material to be
estimated or indicated in an agency's response, and require FEMA to
make available an agency reference guide on the Freedom of Information
Act (FOIA). This proposed rule would revise FEMA's existing regulations
to reflect the provisions of the Electronic Freedom of Information Act
Amendments of 1996.
DATES: We invite comments on this proposed rule on or before October
27, 1998.
ADDRESSES:Please submit your comments to the Rules Docket Clerk, Office
of General Counsel, 500 C Street SW., room 840, Washington, DC 20472,
(facsimile) 202-646-4536, or by email to rules@fema.gov.
FOR FURTHER INFORMATION CONTACT: Sandra Jackson, FOIA/PA Specialist,
Office of General Counsel, 500 C Street SW., room 840, Washington, DC
20472, (202) 646-3840.
SUPPLEMENTARY INFORMATION: This proposed rule would revise FEMA's
existing regulations to reflect the provisions of the Electronic
Freedom of Information Act Amendments of 1996, Public Law 104-231,
affecting the areas of electronic records, physical and electronic
reading rooms, time limits and backlogs, records denial specification,
reference guide, and annual reporting requirements.
According to the amended Act, the term ``record'' encompasses
information, when maintained in any format, including an electronic
format. The category of ``reading room'' records (5 U.S.C. 552(a)(2))
is expanded to include records that the agency discloses in response to
a FOIA request that has become, or is likely to become, the subject of
future requests. An index of those records that are the subject of
multiple requests must be prepared and made available to the public by
electronic means by December 31, 1999. Agencies must create an
``electronic reading room'' to contain those records created after
November 1, 1996 that fall within the ``reading room'' category as
defined by 5 U.S.C. 552(a)(2).
Additionally, agencies must make reasonable efforts to search for
records, even when information is maintained in an electronic database,
unless such efforts would significantly interfere with the operation of
the agency's automated information system. If information is requested
in a particular format, agencies must attempt to provide the record in
that format if readily reproducible.
The general period for responding to requests has been changed from
10 workdays to 20 workdays, and requests for expedited processing must
be accommodated when the requester has demonstrated a compelling need
as defined by the statute. Agencies and requesters must discuss
alternative time frames to process requests, or modifications to the
requests, when the general 20 workday time for responding cannot be
met. Moreover, multi-track processing may be established as a way to
provide more timely responses.
The amount of information deleted on a record must be indicated,
unless doing so would harm an interest protected by an exemption; and,
if technically feasible, the indication shall be at the place in the
record where the deletion is made. If whole pages or documents are
withheld, an estimate of the volume of material withheld must be
provided to the requester, unless doing so would harm an interest
protected by an exemption. Also, a guide for requesting records, which
is to include an index and description of major record systems, must be
developed and made available by computer telecommunications.
Section 5.3 would clarify the definition of ``record'' to include
information stored in an electronic format, and of ``search'' as
defined in section 552(a)(3)(D) to mean review manually or by automated
means.
Section 5.4 would be revised to refer to the availability of
records and information from the FEMA website, FEMAFAX, and the FEMA/
FOIA Handbook.
Section 5.10 would add the annual reporting requirements of FOIA
activity.
Section 5.25(d) would add a new category to reading room records
that ``the agency determines have become or are likely to become the
subject of subsequent requests for substantially the same records.''
Section 5.25(e) refers to the indexing of the records under
Sec. 5.25(d).
Section 5.26 would refer to the ``electronic reading room''
pursuant to 5 U.S.C. 552(a)(2)(D). The statute envisions that each
agency will ultimately have both a traditional reading room, and a new
``electronic reading room'' on the WorldWide Web. Section 5.26 would
also update the mailing address of FEMA Regional Offices.
Section 5.28 would require FEMA to index records under the
authority of 5 U.S.C. 552(a)(2)(E).
Section 5.43(a) would define the term ``public interest'' as
interpreted by the U.S. Supreme Court in Department of Justice v.
Reporters Committee for
[[Page 45983]]
Freedom of the Press, 445 U.S. 136 (1980).
Section 5.44(c) would change ``10 workdays'' to ``20 workdays''.
Section 5.50(a) would include the requirements concerning deleting
information; Sec. 5.50(b) would be revised to change ``10-day'' to ``20
workdays''.
Section 5.52(b) would include the requirements concerning
aggregating requests received from one person or persons acting in
concert.
Section 5.52(c) would require the office having custody of the
records to determine within 20 workdays whether to comply with the
request.
Section 5.52(d) would add the requirements concerning the
``expedited access'' provision of the Act.
Section 5.53 would add ``(a)'' before the existing paragraph. It
would delete the sentence, ``Copies may be furnished or the records may
be inspected and copied as provided in Sec. 5.26'' and would insert
``For records required to be made available under 5 U.S.C. 552(a)(2),
public inspection and copying would be provided as provided in
Sec. 5.26. For records being made available under 5 U.S.C. 552(a)(3),
records would be reviewed for disclosure suitability and provided as
expeditiously as possible.'' A new paragraph ``b'' would refer to
records being provided in any form or format requested, if readily
reproducible, as required by the amendments.
Section 5.54(a)(10) would change ``Comptroller'' to ``Chief
Financial Officer''.
Section 5.55(c) would modify the language to be used when
requesters appeal to the agency under the FOIA; Sec. 5.55(d) would be
modified to change ``Deputy Director'' to ``General Counsel'';
Sec. 5.55(e) would change titles of deciding officials indicated in
this section; Sec. 5.55(h) would change ``Deputy Director'' to
``General Counsel''.
Section 5.56 would insert ``(a)'' before the existing paragraph,
and explanatory language would be deleted and replaced with language
from the Act regarding the extension of time limits under ``unusual
circumstances.''
Section 5.58 would be modified to insert ``(a)'' to precede the
existing paragraph, and explanatory language in the section would be
replaced with language from the Act regarding the exhaustion of
administrative remedies and ``exceptional circumstances.''
Section 5.59 would delete the phrase, ``by the Deputy Director.''
Justification for 30-day Public Comment Period
FEMA has determined that good cause exists for a 30-day comment
period because this proposed rule would implement the Electronic
Freedom of Information Act; the 30-day time frame is sufficient to
provide the public with a meaningful opportunity to comment and would
permit early compliance with the legislative provisions of the FOIA.
Executive Order 12866, Regulatory Planning and Review
This proposed rule is not a significant regulatory action within
the meaning of Sec. 2(f) of E.O. 12866 of September 30, 1993, 58 FR
51735, and has not been reviewed by the Office of Management and
Budget. Nevertheless, this proposed rule adheres to the regulatory
principles set forth in E.O. 12866.
Paperwork Reduction Act
This proposed rule does not contain a collection of information and
is therefore not subject to the provisions of the Paperwork Reduction
Act.
Regulatory Flexibility Act
The Director certifies that this proposed rule is exempt from the
requirements of the Regulatory Flexibility Act because it relates to
individuals' access to information under the Freedom of Information Act
and not to small entities. A regulatory flexibility analysis has not
been prepared.
List of Subjects in 44 CFR Part 5
Administrative practice and procedure, Freedom of information.
Accordingly, the Federal Emergency Management Agency proposes to
revise 44 CFR Part 5 as follows:
PART 5--PRODUCTION OR DISCLOSURE OF INFORMATION
Subpart A--General Provisions
Sec.
5.1 Scope and purposes of part.
5.2 Application.
5.3 Definitions.
5.4 Availability of records.
5.5 Exemptions.
5.6 Information to the Congress.
5.7 Records of other agencies.
5.8 Records involved in litigation or other judicial processes.
5.9 Inconsistent issuances of FEMA and its predecessor agencies
superseded.
5.10 Report on FOIA activity for the fiscal year.
Subpart B--Publication of or Availability of General Agency
Information, Rules, Orders, Policies, and Similar Material
5.20 Publication of rules and general policies.
5.21 Effect of failure to publish.
5.22 Coordination of publication.
5.23 Incorporation by reference.
5.24 Availablity of opinions, orders, policies, interpretations,
manuals, and instructions.
5.25 Available materials.
5.26 Rules for public inspection and copying.
5.27 Deletion of identifying details.
5.28 Indexes.
5.29 Effect of failure to make information materials available.
Subpart C--Fees
5.40 Copies of FEMA records available at a fee.
5.41 FEMA publications.
5.42 Fees to be charged--categories of requesters.
5.43 Waiver or reduction of fees.
5.44 Prepayment of fees.
5.45 Form of payment.
5.46 Fee schedule.
5.47 Appeals regarding fees.
Subpart D--Described Records
5.50 General.
5.51 Submission of requests for described records.
5.52 Review of requests.
5.53 Approval of requests.
5.54 Denial of request for records.
5.55 Appeal within FEMA of denial of request.
5.56 Extension of time limits.
5.57 Predisclosure notification procedures for confidential
commercial information.
5.58 Exhaustion of administrative remedies.
5.59 Judicial relief available to the public.
5.60 Disciplinary action against employees for ``arbitrary or
capricious'' denial.
5.61 Contempt for noncompliance.
Subpart E--Exemptions
5.70 General.
5.71 Categories of records exempt from disclosure under 5 U.S.C.
552.
5.72 Executive privilege exemption.
Subpart F--Subpoenas or Other Legal Demands for Testimony or the
Production or Disclosure of Records or Other Information
5.80 Scope and applicability.
5.81 Statement of policy.
5.82 Definitions.
5.83 Authority to accept service of subpoenas.
5.84 Production of documents in private litigation.
5.85 Authentication and attestation of copies.
5.86 Production of documents in litigation or other adjudicatory
proceeding in which the United States is a party.
5.87 Testimony of FEMA employees in private litigation.
5.88 Testimony in litigation in which the United States is a party.
5.89 Waiver.
Authority: 5 U.S.C. 552; 5 U.S.C. 301; Reorganization Plan No. 3
or 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR
19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR,
1979 Comp., p. 412.
[[Page 45984]]
Subpart A--General Provisions
Sec. 5.1 Scope and purposes of part.
This part sets forth policies and procedures concerning the
availability of and disclosure of records and information held by the
Federal Emergency Management Agency (FEMA) in accordance with 5 U.S.C.
552, popularly known as the ``Freedom of Information Act'' (FOIA).
Sec. 5.2 Application.
This part applies to all records and information materials
generated, developed, or held by FEMA at Headquarters, in Regions, or
in the field, or any component thereof.
Sec. 5.3 Definitions.
The following definitions shall apply to part 5:
(a) Records means all books, papers, maps, photographs, information
stored in electronic format, or other documentary materials, regardless
of physical form or characteristics made or received by FEMA in
pursuance of Federal law or in connection with the transaction of
public business and preserved, or appropriate for preservation, as
evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of FEMA or because of the
information value of data contained therein. The term does not include:
(1) Material made or acquired and preserved solely for reference or
exhibition purposes, extra copies of documents preserved only for
convenience of reference, and stocks of publications and of processed
documents; or
(2) Objects or articles, such as structures, furniture, paintings,
sculpture, models, vehicles or equipment; or
(3) Formulae, designs, drawings, research data, computer programs,
technical data packages, and the like, which are not considered records
within the Congressional intent of reference because of development
costs, use, or value. These items are considered exploitable resources
to be used in the best interest of the entire public and are not
preserved for informational value or as evidence of agency functions.
Requests for copies of such material shall be evaluated in accordance
with policies expressly directed to the appropriate dissemination or
use of these resources. Requests to inspect this material to determine
its content for informational purposes shall normally be granted,
unless inspection is inconsistent with the obligation to protect the
property value of the material, as, for example, may be true for patent
information and certain formulae, or is inconsistent with another
significant and legitimate governmental purpose.
(b) Reasonably Described. Reasonably described, when applied to a
request record, means identifying it to the extent that it will permit
the location of the particular document with a reasonable effort.
(c) Agency. Agency, as defined in 5 U.S.C. 552(f)(1), includes any
executive department, military department, Government corporation,
Government controlled corporation, or other establishment in the
executive branch of the Government (including the Executive Office of
the President), or any independent regulatory agency.
(d) Search. Search, as defined in 5 U.S.C. 552(a)(3)(D) means to
review, manually or by automated means, agency records for the purpose
of locating records that are responsive to a request.
(d) Headquarters FOIA Officer. The FOIA/Privacy Act Specialist or
his/her designee.
(e) Regional FOIA Officer. The Regional Director, or his/her
designee.
Sec. 5.4 Availability of records.
(a) FEMA records are available to the greatest extent possible in
keeping with the spirit and intent of FOIA and will be furnished
promptly to any member of the public upon request addressed to the
office designated in Sec. 5.26. The person making the request need not
have a particular interest in the subject matter, nor must the person
justify the request.
(b) The requirement of 5 U.S.C. 552 that records be available to
the public refers only to records in being when the requester asks for
them. The Act imposes no obligation to compile a record in response to
a request.
(c) Visit the FEMA website, http://www.fema.gov/library, for
information about the Agency and activities, or contact FEMAFAX, (202)
646-FEMA, for access to a variety of information from the Office of
Emergency Information and Media Affairs Master Document index. Any
document(s) selected will be provided via facsimile.
(d) A FEMA/FOIA Handbook will be available to the public that will
aid in requesting various types and categories of public information
from the Agency, both through FOIA and through non-FOIA means.
Sec. 5.5 Exemptions.
Requests for FEMA records may be denied if disclosure is exempted
under the provisions of 5 U.S.C. 552(b), as outlined in subpart E.
Except when a record is classified, or when disclosure would violate
any other Federal statute, the authority to withhold a record from
disclosure usually is permissive rather than mandatory. The authority
for nondisclosure will not be invoked unless there is compelling reason
to do so.
Sec. 5.6 Information to the Congress.
Nothing in this part authorizes withholding information from the
Congress except when the President invokes executive privilege.
Sec. 5.7 Records of other agencies.
If a request is submitted to FEMA to make available current records
that are the primary responsibility of another agency, FEMA will refer
the request to the agency concerned for appropriate action. FEMA will
advise the requester that the request has been forwarded to the
responsible agency.
Sec. 5.8 Records involved in litigation or other judicial process.
Where there is reason to believe that any records requested may be
involved in litigation or other judicial process in which the United
States is a party, including discovery procedures pursuant to the
Federal Rules of Civil Procedure or Federal Rules of Criminal
Procedure, the request shall be referred to the General Counsel.
Sec. 5.9 Inconsistent issuances of FEMA and its predecessor agencies
superseded.
Policies and procedures of any of FEMA's predecessor agencies
inconsistent with this regulation are superseded to the extent of that
inconsistency.
Sec. 5.10 Report on FOIA activity for the fiscal year.
(a) On or before February 1 of each year, the Agency shall submit a
report of its activities with regard to freedom of information requests
during the preceding fiscal year to the Attorney General of the United
States.
(b) The annual report shall include:
(1) The number of determinations made by the agency not to comply
with requests for records made to such agency under paragraph (a) of
this section and the reasons for each such determination;
(2) The number of appeals made by persons, the result of such
appeals, and the reason for the action upon each appeal that results in
a denial of information;
(3) A complete list of all statutes that the Agency relies upon to
withhold information under such provisions, a description of whether a
court has
[[Page 45985]]
upheld the decision of the Agency to withhold information under each
such statute, and a concise description of the scope of any information
withheld;
(4) The number of requests for records pending before the Agency as
of September 30 of the preceding year, and the median number of days
that such request had been pending before the Agency as of that date;
(5) The number of requests for records received by the Agency and
the number of requests that the Agency processed;
(6) The median number of days taken by the Agency to process
different types of requests;
(7) The total amount of fees collected by the Agency for processing
requests; and
(8) The number of full-time staff of the Agency devoted to
processing requests for records under such provisions, and the total
amount expended by the Agency for processing such requests.
Subpart B--Publication of or Availability of General Agency
Information, Rules, Orders, Policies, and Similar Material
Sec. 5.20 Publication of rules and general policies.
In accordance with 5 U.S.C. 552(a)(1), there are separately stated
and currently published, or from time to time there will be published,
in the Federal Register for the guidance of the public, the following
general information concerning FEMA:
(a) Description of the organization of the Headquarters Office and
regional and other offices and the established places at which, the
employees from whom, and the methods whereby the public may obtain
information, make submittals or requests, or obtain decisions.
(b) Statement of the general course and method by which FEMA
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available.
(c) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations.
(d) Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretations
of general applicability formulated and adopted by FEMA.
(e) Each amendment, revision, or repeal of the materials described
in this section. Much of this information will also be codified in this
subchapter A.
Sec. 5.21 Effect of failure to publish.
5 U.S.C. 552(a)(1) provides that except to the extent that a person
has actual and timely notice of the terms thereof, a person may not in
any manner be required to resort to, or be adversely affected by, a
matter required to be published in the Federal Register and not so
published.
Sec. 5.22 Coordination of publication.
The General Counsel of FEMA is responsible for coordination of FEMA
materials required to be published in the Federal Register.
Sec. 5.23 Incorporation by reference.
When deemed appropriate, matter covered by this subpart, which is
reasonably available to the class of persons affected thereby may be
incorporated by reference in the Federal Register in accordance with
standards prescribed from time to time by the Director of the Federal
Register (see 1 CFR part 51).
Sec. 5.24 Availability of opinions, orders, policies, interpretations,
manuals, and instructions.
FEMA will make available for public inspection and copying the
material described in 5 U.S.C. 552(a)(2) as enumerated in Sec. 5.25 and
an index of those materials as described in Sec. 5.28, at convenient
places and times.
Sec. 5.25 Available materials.
FEMA materials that are available under this subpart are as
follows:
(a) Final opinions and orders made in the adjudication of cases.
(b) Those statements of policy and interpretations that have been
adopted by FEMA and are not published in the Federal Register.
(c) Administrative staff manuals and instructions to staff that
affect a member of the public, unless such materials are promptly
published and copies offered for sale.
(d) Copies of all records, regardless of form or format, that have
been released to any person under 5 U.S.C. 552(a)(3), and which because
of the nature of their subject matter, the agency determines have
become or are likely to become the subject of subsequent requests for
substantially the same records.
(e) A general index of the records referred to under paragraph (d)
of this section.
Sec. 5.26 Rules for public inspection and copying.
(a) Location. Reading room materials are available for public
inspection and copying at the following locations:
(1) Headquarters:
Federal Center Plaza, 500 C Street SW., Washington, DC 20472.
(2) Regional Offices
Region I, room 442, J. W. McCormack Post Office & Court House,
Boston, MA 02109-4595;
Region II, room 1337, 26 Federal Plaza, New York, NY 10278-0002;
Region III, Liberty Square Bldg. (Second Floor), 105 South
Seventh Street, Philadelphia, PA 19106-3316;
Region IV, 3003 Chamblee Tucker Road, Atlanta, GA 30341;
Region V, 175 W. Jackson Boulevard (Fourth Floor), Chicago, IL
60604-2698;
Region VI, Federal Regional Center, 800 North Loop, Denton, TX
76201-3698;
Region VII, Suite 900, 2323 Grand Avenue, Kansas City, MO 64108-
2670;
Region VIII, Denver Federal Center, Building 710, Box 25267,
Denver, CO 80225-0267;
Region XI, Building 105, The Presidio of San Francisco, CA
94129-1250;
Region X, Federal Regional Center, 130--228th Street, SW.,
Bothell, WA 98021-9796.
(b) Time. Materials will be made available for public inspection
and copying during the normal hours of business.
(c) Copying services. FEMA will furnish reasonable copying services
at fees specified in subpart C. Such reproduction services as are
required will be arranged by the Office of Administrative Support in
the headquarters or by regional offices as appropriate.
(d) Handling of materials. The unlawful removal or mutilation of
materials is forbidden by law and is punishable by fine or imprisonment
or both. FEMA personnel making materials available will ensure that all
materials provided for inspection and copying are returned in the same
condition as provided.
(e) Availability. All reading room materials that are created on or
after November 1, 1996 will also be made available by computer
telecommunications pursuant to 5 U.S.C. 552(a)(2).
Sec. 5.27 Deletion of identifying details.
To the extent required to prevent a clearly unwarranted invasion of
personal privacy, FEMA may delete identifying details when making
available or publishing an opinion, statement of policy,
interpretation, or staff manual or instruction. However, the
justification for each deletion will be explained fully in writing, and
will require the concurrence of the General Counsel. A copy of the
justification will be attached to the material containing the deletion
and a copy will also be furnished to the Headquarters FOIA Officer or
appropriate Regional Director.
[[Page 45986]]
Sec. 5.28 Indexes.
FEMA will maintain and make available for public inspection and
copying current indexes arranged by subject matter providing
identifying information for the public regarding any matter issued,
adopted, or promulgated after July 4, 1967, and described in Sec. 5.25.
FEMA will publish quarterly and make available copies of each index or
supplements thereto. The indexes will be maintained for public
inspection at the location described in Sec. 5.26. An index of
documents referred to in Sec. 5.25(e) will be made available by
computer telecommunications by December 31, 1999.
Sec. 5.29 Effect of failure to make information materials available.
Materials requested to be made available under Sec. 5.24 that
affect a member of the public may be relied upon, used, or cited as
precedent by FEMA against any private party only if (a) they have been
indexed and either made available or published as required by 5 U.S.C.
552(a)(2), or (b) the private party has actual and timely notice of
their terms.
Subpart C--Fees
Sec. 5.40 Copies of FEMA records available at a fee.
One copy of FEMA records not available free of charge will be
provided at a fee as provided in Sec. 5.46. A reasonable number of
additional copies will be provided for the applicable fee where
reproduction services are not readily obtainable from private
commercial sources.
Sec. 5.41 FEMA publications.
Anyone may obtain FEMA publications without charge from the FEMA
Headquarters, Regional Offices and from FEMA, PO Box 8181, Washington,
DC 20024 in accordance with standard operating procedures, including
limitation on numbers of specific individual publications. FEMA films
may be obtained on loan or certain of these films may be purchased, in
which case fees will be charged as set out in a FEMA catalogue. Non-
exempt FEMA research reports are available from the National Technical
Information Service, United States Department of Commerce, which
establishes its own fee schedule. Charges, if any, for these items and
similar user charges are established in accordance with other
provisions of law as, for example, 31 U.S.C. 9701, and are not deemed
search and duplication charges hereunder.
Sec. 5.42 Fees to be charged--categories of requesters.
(a) There are four categories of FOIA requesters: Commercial use
requesters; representatives of news media; educational and
noncommercial scientific institutions; and all other requesters. The
time limits for processing requests shall only begin upon receipt of a
proper request that reasonably identifies records being sought. The
Freedom of Information Reform Act of 1986 prescribes specific levels of
fees for each of these categories:
(1) When records are being requested for commercial use, the fee
policy of FEMA is to levy full allowable direct cost of searching for,
reviewing for release, and duplicating the records sought. Commercial
users are not entitled to two hours of free search time or to 100 free
pages of reproduction of documents. The full allowable direct cost of
searching for and reviewing records will be charged even if there is
ultimately no disclosure of records. Commercial use is defined as a use
that furthers the commercial, trade or profit interests of the
requester or person on whose behalf the request is made. In determining
whether a requester falls within the commercial use category, FEMA will
look to the use to which a requester will put the documents requested.
Where a requester does not explain his/her use, or where his/her
explanation is insufficient to permit a determination of the nature of
the use, FEMA shall require the requester to provide information
regarding the use to be made of the information. If the explanation
does not include an agreement to pay all appropriate fees FEMA will
process the request only up to the $30.00 threshold that FEMA has
determined is the minimum cost to the Agency of routine collection and
processing. Requesters must reasonably describe the records sought.
(2) When representatives of the news media request records, the fee
policy of FEMA is to levy reproduction charges only, excluding charges
for the first 100 pages. A representative of the news media is any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or information that
would be of current interest to the public. Examples of the news media
include television or radio stations broadcasting to the public at
large and publishers of periodicals (but only in those instances where
they can qualify as disseminators of ``news'') who make their products
available for purchase or subscription by the general public. These
examples are not intended to be all-inclusive. As methods of news
delivery evolve (i.e., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included
in this category. ``Freelance'' journalists, may be regarded as working
for a news organization if they can demonstrate a solid basis for
expecting publication through that organization, even though not
actually employed by it. For example, a publication contract would be
the clearest proof, but FEMA may also look to the past publication
record, press accreditation, guild membership, business registration,
Federal Communications Commission licensing, or similar credentials of
a requester in making this determination. To be eligible for inclusion
in this category, requesters must meet the criteria specified in this
section and his or her request must not be made for a commercial use as
that term is defined under paragraph (a)(1) of this section. A request
for records that supports the news dissemination function of the
requester shall not be considered to be a request that is for a
commercial use. Requesters must reasonably describe the records sought.
(3) When records are being requested by an educational or
noncommercial scientific institution whose purpose is scholarly or
scientific research, the fee policy of FEMA is to levy reproduction
charges only, excluding charges for the first 100 pages. ``Educational
institution'' refers to 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,
which operates a program or programs of scholarly research.
``Noncommercial scientific institution'' refers to an institution that
is not operated on a commercial basis as that term is defined under
paragraph (a)(1) of this section and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. To be eligible
for inclusion in this category, requesters must show that the request
is being made under the auspices of a qualified institution and that
the records are not sought for a commercial use, but are sought in
furtherance of scholarly (if the request is from an educational
institution) or scientific (if the request is from a noncommercial
scientific institution) research. Requesters must reasonably describe
the records sought.
[[Page 45987]]
(4) For any other request that does not meet the criteria contained
in paragraphs (a)(1) through (3) of this section, the fee policy of
FEMA is to levy full reasonable direct cost of searching for and
duplicating the records sought, except that the first 100 pages of
reproduction and the first two hours of search time shall be furnished
without charge. The first two hours of computer search time is based on
the hourly cost of operating the central processing unit and the
operator's hourly salary plus 16 percent. When the cost of the computer
search, including the operator time and the cost of operating the
computer to process the request, equals the equivalent dollar amount of
two hours of the salary of the person performing the search, i.e., the
operator, FEMA shall begin assessing charges for computer search.
Requests from individuals requesting records about themselves filed in
FEMA's systems of records shall continue to be treated under the fee
provisions of the Privacy Act of 1974 that permit fees only for
reproduction. Requesters must reasonably describe the records sought.
(b) Except for requests that are for a commercial use, FEMA may not
charge for the first two hours of search time or for the first 100
pages of reproduction. However, a requester may not file multiple
requests at the same time, each seeking a portion of a document or
documents, in order to avoid payment of fees. When FEMA believes that a
requester or, on rare occasions, a group of requesters acting in
concert, is attempting to break a request down into a series of
requests for the purpose of evading the assessment of fees, FEMA may
aggregate any such requests and charge accordingly. For example, it
would be reasonable to presume that multiple requests of this type made
within a 30-day period had been made to avoid fees. For requests made
over a longer period, however, FEMA must have a solid basis for
determining that aggregation is warranted in such cases. Before
aggregating requests from more than one requester, FEMA must have a
concrete basis on which to conclude that the requesters are acting in
concert and are acting specifically to avoid payment of fees. In no
case may FEMA aggregate multiple requests on unrelated subjects from
one requester.
(c) In accordance with the prohibition of 5 U.S.C. 552(a)(4)(A)(iv)
FEMA shall not charge fees to any requester, including commercial use
requesters, if the costs of collecting a fee are likely to equal or
exceed the amount of the fee.
(1) For commercial use requesters, if the direct cost of searching
for, reviewing for release, and duplicating the records sought would
not exceed $30.00, FEMA shall not charge the requester any costs.
(2) For requests from representatives of news media or educational
and noncommercial scientific institutions, excluding the first 100
pages that are provided at no charge, if the duplication cost would not
exceed $30.00, FEMA shall not charge the requester any costs.
(3) For all other requests not falling within the category of
commercial use requests, representatives of news media, or educational
and noncommercial scientific institutions, FEMA shall not charge the
requester any costs if the direct cost of searching for and duplicating
the records sought would not exceed $30.00, excluding the first two
hours of search time and first 100 pages that are free of charge.
Sec. 5.43 Waiver or reduction of fees.
(a) FEMA may waive all fees or levy a reduced fee when disclosure
of the information requested is deemed to be in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the Federal Government
and is not primarily in the commercial interest of the requester.
Disclosure is considered in the ``public interest'' if it would shed
light on how an agency performs its statutory duties; the identity of
the requester or purpose for which the information is requested is not
relevant.
(b) A fee waiver request shall indicate how the information will be
used, to whom it will be provided, whether the requester intends to use
the information for resale at a fee above actual cost, any personal or
commercial benefits that the requester reasonably expects to receive by
the disclosure, provide justification to support how release will
benefit the general public, the requester's or intended user's identity
and qualifications, expertise in the subject area and ability and
intention to disseminate the information to the public.
Sec. 5.44 Prepayment of fees.
(a) When FEMA estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250.00, FEMA may
require a requester to make an advance payment of the entire fee before
continuing to process the request.
(b) When a requester has previously failed to pay a fee in a timely
fashion (i.e., within 30 days of the date of the billing), FEMA may
require the requester to pay the full amount owed plus any applicable
interest as provided in Sec. 5.46(d), and to make an advance payment of
the full amount of the estimated fee before the agency begins to
process a new request or a pending request from that requester.
(c) When FEMA acts under paragraphs (a) or (b) of this section, the
administrative time limits prescribed in subsection (a)(6) of the FOIA
(i.e., 20 workdays from the receipt of initial requests and 20 workdays
from receipt of appeals from initial denial, plus permissible
extensions of these time limits) will begin only after FEMA has
received fee payments described under paragraphs (a) or (b) of this
section.
Sec. 5.45 Form of payment.
Payment shall be by check or money order payable to the Federal
Emergency Management Agency and shall be addressed to the official
designated by FEMA in correspondence with the requester or to the
Headquarters FOIA Officer or to the Regional FOIA Officer, as
appropriate.
Sec. 5.46 Fee schedule.
(a) Manual searches for records. FEMA will charge at the salary
rate(s), (i.e., basic hourly pay rate plus 16 percent) of the
employee(s) conducting the search. FEMA may assess charges for time
spent searching, even if the agency fails to locate the records or if
records located are determined to be exempt from disclosure.
(b) Computer searches for records. FEMA will charge the actual
direct cost of providing the service. This will include the cost of
operating the central processing unit (CPU) for that portion of
operating time that is directly attributable to searching for records
responsive to a FOIA request and operator/programmer salary
apportionable to the search. FEMA may assess charges for time spent
searching, even if FEMA fails to locate the records or if records
located are determined to be exempt from disclosure.
(c) Duplication costs. (1) For copies of documents reproduced on a
standard office copying machine in sizes up to 8\1/2\ x 14 inches,
the charge will be $0.15 per page.
(2) The fee for reproducing copies of records over 8\1/2\ x 14
inches or whose physical characteristics do not permit reproduction by
routine electrostatic copying shall be the direct cost of reproducing
the records through government or commercial sources. If FEMA estimates
that the allowable duplication charges are likely to exceed $25.00, it
shall notify the requester of the estimated amount of fees, unless the
requester has indicated in advance his/her willingness to pay fees as
high as those anticipated. Such a notice shall
[[Page 45988]]
offer a requester the opportunity to confer with agency personnel with
the objective of reformulating the request to meet his/her needs at a
lower cost.
(3) For copies prepared by computer, such as tapes or printouts,
FEMA shall charge the actual cost, including operator time, of
production of the tape or printout. If FEMA estimates that the
allowable duplication charges are likely to exceed $25, it shall notify
the requester of the estimated amount of fees, unless the requester has
indicated in advance his/her willingness to pay fees as high as those
anticipated. Such a notice shall offer a requester the opportunity to
confer with agency personnel with the objective of reformulating the
request to meet his/her needs at a lower cost.
(4) For other methods of reproduction or duplication, FEMA shall
charge the actual direct costs of producing the document(s). If FEMA
estimates that the allowable duplication charges are likely to exceed
$25, it shall notify the requester of the estimated amount of fees,
unless the requester has indicated in advance his/her willingness to
pay fees as high as those anticipated. Such a notice shall offer a
requester the opportunity to confer with agency personnel with the
objective of reformulating the request to meet his/her needs at a lower
cost.
(d) Interest. Interest may be charged to those requesters who fail
to pay fees charged. FEMA may begin assessing interest charges on the
amount billed starting on the 31st day following the day on which the
billing was sent. Interest will be at the rate prescribed in 31 U.S.C.
3717 and will accrue from the date of the billing.
(e) Methods to comply. FEMA shall use the most efficient and least
costly methods to comply with requests for documents made under the
FOIA. FEMA may choose to contract with private sector services to
locate, reproduce and disseminate records in response to FOIA requests
when that is the most efficient and least costly method. When documents
responsive to a request are maintained for distribution by agencies
operating statutory-based fee schedule programs, such as but not
limited to the Government Printing Office or the National Technical
Information Service, FEMA will inform requesters of the steps necessary
to obtain records from those sources.
Sec. 5.47 Appeals regarding fees.
A requester whose application for a fee waiver or a fee reduction
is denied may appeal that decision to the General Counsel in the manner
prescribed in subpart D.
Subpart D--Described Records
Sec. 5.50 General.
(a) Except for records made available pursuant to subpart B, FEMA
shall promptly make records available to a requester pursuant to a
request that reasonably describes such records unless FEMA invokes an
exemption under subpart E. For information that is deleted from a
record in part, the amount of information deleted shall be indicated on
the released portion of the record, unless including that indication
would harm an interest protected by an applicable exemption. When
entire records, or entire pages, are withheld a reasonable effort is to
be made to estimate the volume of what is withheld and provide any such
estimate to the requester. Although the burden of reasonable
description of the records rests with the requester, FEMA will assist
in identification to the extent practicable. Where requested records
may be involved in litigation or other judicial proceedings in which
the United States is a party the procedures set forth under Sec. 5.8
shall be followed.
(b) Upon receipt of a request that does not reasonably describe the
records requested, FEMA may contact the requester to seek a more
specific description. The 20-workday time limit set forth in Sec. 5.52
will not start until a request reasonably describing the records is
received in the office of the appropriate official identified in
Sec. 5.51.
Sec. 5.51 Submission of requests for described records.
(a) For records located in the FEMA Headquarters, requests shall be
submitted in writing, to the Headquarters FOIA Officer, Federal
Emergency Management Agency, Washington, DC 20472. For records located
in the FEMA Regional Offices, requests shall be submitted to the
appropriate Regional FOIA Officer, at the address listed in Sec. 5.26.
Requests should bear the legend ``Freedom of Information Request''
prominently marked both on the face of the request letter and on the
envelope. The 20-workday time limit for agency determinations set forth
in Sec. 5.52 shall not start until a request is received in the office
of the appropriate official identified in this paragraph.
(b) The Headquarters FOIA Officer shall respond to questions
concerning the proper office to which Freedom of Information requests
should be addressed.
Sec. 5.52 Review of requests.
(a) Upon receipt of a request for information, the Headquarters
FOIA Officer, or the Regional FOIA Officer for a regional office, will
forward the request to the FEMA office that has custody of the record.
An information copy of region requests will be forwarded to the
Headquarters FOIA Officer.
(b) Multiple requests from one requester or requesters acting in
concert will be processed as one request when the Agency reasonably
believes that such requests actually constitute a single request that
will otherwise satisfy the unusual circumstances specified in
Sec. 5.56(c). Multiple unrelated requests will not be aggregated.
(c) Upon any request for records made pursuant to Sec. 5.20,
Sec. 5.24, or Sec. 5.51, the office having custody of the records shall
determine within 20 workdays after receipt of any such request in the
office of the appropriate official identified in Sec. 5.51 whether to
comply with the request. If the request is approved, the office having
custody of the record shall notify the requester and the Headquarters
FOIA Officer whether the request originated in Headquarters, a Region
or the field.
(d) Requests for expedited processing and FOIA appeals will be
taken out of order and given expedited treatment whenever it is
determined that:
(1) Circumstances in which failure to expedite could reasonably be
expected to pose an imminent threat to the life or physical safety of
an individual;
(2) There exists an urgency to inform the public about an actual or
alleged Federal Government activity, and a person who is primarily
engaged in disseminating information makes the request.
A requester whose request for expedited access is denied may appeal
that decision to the General Counsel in the manner prescribed in
subpart D.
Sec. 5.53 Approval of requests.
(a) When a request is approved, records will be made available
promptly in accordance with the terms of the regulation. For records
required to be made available under 5 U.S.C. 552(a)(2), public
inspection and copying will be provided as provided in Sec. 5.26. For
records being made available under 5 U.S.C. 552(a)(3), records will be
reviewed and provided as expeditiously as possible.
(b) In making a record available under 5 U.S.C. 552(a)(3), the
record shall be provided in any form or format requested by the person
if the record is readily reproducible by the agency in that form or
format.
[[Page 45989]]
Sec. 5.54 Denial of request for records.
(a) Each of the following officials within FEMA, any official
designated to act for the official, or any official delegated authority
by such officials shall have the authority to make initial denials of
requests for disclosure of records in his or her custody, and shall, in
accordance with 5 U.S.C. 552(a)(6)(C) be the responsible official for
denial of records under this part.
(1) Deputy Director.
(2) [Reserved].
(3) Federal Insurance Administrator/Executive Administrator.
(4) Associate Directors/Executive Associate Directors.
(5) United States Fire Administrator/Executive Administrator.
(6) Chief of Staff.
(7) Office Directors.
(8) Associate General Counsel for General Law.
(9) Inspector General.
(10) Chief Financial Officer.
(11) Regional Directors.
(b) If a request is denied, the appropriate official listed in
paragraph (a) of this section shall advise the requester within 20
workdays of receipt of the request by the official specified in
Sec. 5.51, except as provided in Sec. 5.56, and shall furnish written
reasons for the denial. The denial will describe the record or records
requested, state the reasons for nondisclosure pursuant to subpart E,
state the name and title or position of the official responsible for
the denial of such request, and state the requester's appeal rights.
(c) If FEMA cannot locate requested records the appropriate
official specified in paragraph (a) of this section will inform the
requester that the agency has determined at the present time to deny
the request because the records have not yet been found or examined,
but that the agency will review the request within a specified number
of days, when the search or examination is expected to be complete. The
denial letter will state the name and title or position of the official
responsible for the denial of such request. In such event, the
requester may file an agency appeal immediately, pursuant to Sec. 5.55.
Sec. 5.55 Appeal within FEMA of denial of request.
(a) A requester denied access, in whole or in part, to FEMA records
may appeal that decision within FEMA. Address all appeals to the
Headquarters FOIA Officer, Federal Emergency Management Agency,
Washington, DC 20472, regardless of whether the denial being appealed
was made at Headquarters, in a field office, or by a Regional Director.
(b) An appeal must be received in the Headquarters FOIA Office no
later than thirty calendar days after receipt by the requester of the
initial denial.
(c) An appeal must be in writing and should contain a brief
statement of the requester's reason(s) challenging the cited
exemption(s) as improper, and should enclose copies of the initial
request and denial. The appeal letter should bear the legend, ``FREEDOM
OF INFORMATION APPEAL,'' conspicuously marked on both the face of the
appeal letter and on the envelope. FEMA has 20 workdays after the
receipt of an appeal to make a determination with respect to such
appeal. The 20-workday time limit shall not begin to run until the
Headquarters FOIA Officer receives the appeal. Misdirected appeals
should be forwarded promptly to that office.
(d) The Headquarters FOIA Officer will submit the appeal to the
General Counsel for final administrative determination.
(e) The General Counsel shall be the deciding official on all
appeals except in those cases in which he or she made the initial
denial. If the General Counsel made the initial denial, the Deputy
Director will be the deciding official on any appeal from that denial.
In the absence of the Deputy Director, or in case of a vacancy in that
office, the Director may be the deciding official or designate another
FEMA official to perform the Deputy's functions.
(f) If an appeal is filed in response to a tentative denial pending
locating and/or examination of records, as described in Sec. 5.53(c),
FEMA will continue to search for or examine the requested records and
will issue a response immediately upon completion of the search or
examination. Such action in no way suspends the time for FEMA's
response to the requester's appeal that FEMA will continue to process
regardless of the response under this paragraph.
(g) If a requester files suit pending an agency appeal, FEMA
nonetheless will continue to process the appeal, and will furnish a
response within the 20 workday time limit set out in paragraph (c) of
this section.
(h) If, on appeal, the denial of the request for records is upheld
in whole or in part, the General Counsel will promptly furnish the
requester a copy of the ruling in writing within the 20-workday time
limit set out in paragraph (c) of this section except as provided in
Sec. 5.55. The notification letter shall contain:
(1) A brief description of the record or records requested;
(2) A statement of the legal basis for nondisclosure;
(3) A statement of the name and title or position of the official
or officials responsible for the denial of the initial request as
described in Sec. 5.54 and the denial of the appeal as described in
paragraph (f) of this section, and
(4) A statement of the requester's rights of judicial review.
Sec. 5.56 Extension of time limits.
(a) In unusual circumstances as specified in this section, the time
limits prescribed in Secs. 5.52 and 5.55 may be extended by a written
notice to the person making such request setting forth the unusual
circumstances for such extension and the date on which a determination
is expected to be dispatched. No such notice shall specify a date that
would result in an extension for more than 10 workdays, except as
provided in paragraph (b) of this section.
(b) With respect to a request for which a written notice under
paragraph (a) of this section extends the time limits prescribed under
Secs. 5.52(b) and 5.55(c), the agency shall notify the person making
the request if the request cannot be processed within the time limit
specified in that section and shall provide the person an opportunity
to limit the scope of the request so that it may be processed within
that time limit or an opportunity to arrange with the agency an
alternative time frame for processing the request or a modified
request. Refusal by the requester to modify the request reasonably or
to arrange such an alternative time frame shall be considered as a
factor in determining whether exceptional circumstances exist for
purposes of this section.
(c) ``Unusual circumstances'' means, but only to the extent
reasonably necessary for the proper processing of the particular
requests--
(1) The need to search for and collect the requested records from
field facilities or other 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 that are demanded in
a single request; or
(3) The need for consultation, which shall 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.
[[Page 45990]]
Sec. 5.57 Predisclosure notification procedures for confidential
commercial information.
(a) In general. Business information provided to FEMA by a business
submitter shall not be disclosed pursuant to a Freedom of Information
Act request except in accordance with this section. For purposes of
this section, the following definitions apply:
(1) Confidential commercial information means records provided to
the government by a submitter that arguably contain material exempt
from release under Exemption 4 of the Freedom of Information Act, 5
U.S.C. 552(b)(4), because disclosure could reasonably be expected to
cause substantial competitive harm.
(2) Submitter means any person or entity that provides confidential
commercial information to the government. The term submitter includes
corporations, State governments, and foreign governments.
(b) Notice to business submitters. FEMA shall provide a submitter
with prompt notice of receipt of a Freedom of Information Act request
encompassing its business information whenever required in accordance
with paragraph (c) of this section, and except as provided in paragraph
(g) of this section. The written notice shall either describe the exact
nature of the business information requested or provide copies of the
records or portions of records containing the business information.
(c) When notice is required. (1) For confidential commercial
information submitted prior to January 1, 1988, FEMA shall provide a
submitter with notice of receipt of a FOIA request whenever:
(i) The records are less than 10 years old and the information has
been designated by the submitter as confidential commercial
information;
(ii) FEMA has reason to believe that disclosure of the information
could reasonably result in commercial or financial injury to the
submitter; or
(iii) The information is subject to prior express commitment of
confidentiality given by FEMA to the submitter.
(2) For confidential commercial information submitted to FEMA on or
after January 1, 1988, FEMA shall provide a submitter with notice of
receipt of a FOIA request whenever:
(i) The submitter has in good faith designated the information as
commercially or financially sensitive information; or
(ii) FEMA has reason to believe that disclosure of the information
could reasonably result in commercial or financial injury to the
submitter.
(3) Notice of a request for confidential commercial information
falling within paragraph (c)(2)(i) of this section shall be required
for a period of not more than 10 years after the date of submission
unless the submitter requests, and provides acceptable justification
for, a specific notice period of greater duration.
(4) Whenever possible, the submitter's claim of confidentiality
shall be supported by a statement or certification by an officer or
authorized representative of the company that the information in
question is in fact confidential commercial or financial information
and has not been disclosed to the public.
(d) Opportunity to object to disclosure. (1) Through the notice
described in paragraph (b) of this section, FEMA shall afford a
submitter 7 workdays within which to provide FEMA with a detailed
statement of any objection to disclosure. Such statement shall specify
all grounds for withholding any of the information under any exemptions
of the Freedom of Information Act and, in the case of Exemption 4,
shall demonstrate why the information is contended to be a trade secret
or commercial or financial information that is considered privileged or
confidential. Information provided by a submitter pursuant to this
paragraph might itself be subject to disclosure under the FOIA.
(2) When notice is given to a submitter under this section, FEMA
shall notify the requester that such notice has been given to the
submitter. The requester will be further advised that a delay in
responding to the request, i.e., 10 workdays after receipt of the
request by FEMA or 20 workdays after receipt of the request by FEMA if
the time limits are extended under unusual circumstances permitted by
the FOIA, may be considered a denial of access to records and the
requester may proceed with an administrative appeal or seek judicial
review, if appropriate.
(e) Notice of intent to disclose. FEMA shall consider carefully a
submitter's objections and specific grounds for nondisclosure prior to
determining whether to disclose business information. Whenever FEMA
decides to disclose business information over the objection of a
submitter, FEMA shall forward to the submitter a written notice that
shall include:
(1) A statement of the reasons why the submitter's disclosure
objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which is 7 workdays after the
notice of the final decision to release the requested information has
been mailed to the submitter. FEMA shall inform the submitter that
disclosure will be made by the specified disclosure date, unless the
submitter seeks a court injunction to prevent its release by the date.
When notice is given to a submitter under this section, FEMA shall
notify the requester that such notice has been given to the submitter
and the proposed date for disclosure.
(f) Notice of lawsuit. (1) Whenever a requester brings legal action
seeking to compel disclosure of business information covered by
paragraph (c) of this section, FEMA shall promptly notify the
submitter.
(2) Whenever a submitter brings legal action seeking to prevent
disclosure of business information covered by paragraph (c) of this
section, FEMA shall promptly notify the requester.
(g) Exception to notice requirement. The notice requirements of
this section shall not apply if:
(1) FEMA determines that the information shall not be disclosed;
(2) The information has been published or otherwise officially made
available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The information was required in the course of a lawful
investigation of a possible violation of criminal law.
Sec. 5.58 Exhaustion of administrative remedies.
(a) Any person making a request to FEMA for records under this part
shall be deemed to have exhausted his administrative remedies with
respect to the request if the agency fails to comply with the
applicable time limit provisions set forth in Secs. 5.52 and 5.55.
(b) ``Exceptional circumstances'' does not include a delay that
results from a predictable agency workload of requests under this
section, unless the agency demonstrates reasonable progress in reducing
its backlog of pending requests.
(c) Refusal by a requester to modify the scope of a request
reasonably or to arrange an alternative time frame for processing the
request (or a modified request) under paragraph (a) after being given
an opportunity to do so by the agency to whom the person made the
request shall be considered as a factor in determining whether
exceptional circumstances exist for purposes of this paragraph.
Sec. 5.59 Judicial relief available to the public.
Upon denial of a requester's appeal, the requester may file a
complaint in a
[[Page 45991]]
district court of the United States in the district in which the
complainant resides, or has his principal place of business, or in
which the agency records are situated, or in the District of Columbia,
pursuant to 5 U.S.C. 552(a)(4)(B).
Sec. 5.60 Disciplinary action against employees for ``arbitrary or
capricious'' denial.
Pursuant to 5 U.S.C. 552(a)(4)(F), whenever the district court,
described in Sec. 5.59 orders the production of any FEMA records
improperly withheld from the complainant and assesses against the
United States reasonable attorney fees and other litigation costs, and
the court additionally issues a written finding that the circumstances
surrounding the withholding raise questions whether FEMA personnel
acted arbitrarily or capriciously with respect to the withholding, the
Special Counsel in the Merit Systems Protection Board is required to
initiate a proceeding to determine whether disciplinary action is
warranted against the officer or employee who primarily was responsible
for the withholding. The Special Counsel after investigation and
consideration of the evidence submitted, submits findings and
recommendations to the Director of FEMA and sends copies of the
findings and recommendations to the officer or employee or his or her
representative. The law requires the Director to take any corrective
action that the Special Counsel recommends.
Sec. 5.61 Contempt for noncompliance.
In the event of noncompliance by FEMA with an order of a district
court pursuant to Sec. 5.60, the district court may punish for contempt
the FEMA employee responsible for the noncompliance, pursuant to 5
U.S.C. 552(a)(4)(G).
Subpart E--Exemptions
Sec. 5.70 General.
The exemptions enumerated in 5 U.S.C. 552(b), under which the
provisions for availability of records and informational materials will
not apply, are general in nature. FEMA will decide each case on its
merits in accordance with the FEMA policy expressed in subpart A.
Sec. 5.71 Categories of records exempt from disclosure under 5 U.S.C.
552.
5 U.S.C. 552(b) provides that the requirements of the statute do
not apply to matters that are:
(a) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense
or foreign policy and are, in fact, properly classified pursuant to
such Executive Order;
(b) Related solely to the internal personnel rules and practices of
an agency;
(c) Specifically exempted from disclosure by statute other than
section 552(b) of title 5, provided that such statute requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue or establishes particular criteria for
withholding or refers to particular types of matter to be withheld;
(d) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(e) Inter-agency or intra-agency memoranda or letters that would
not be available by law to a party other than an agency in litigation
with the agency;
(f) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(g) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(1) Could reasonably be expected to interfere with enforcement
proceedings;
(2) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(3) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(4) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution that furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source;
(5) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical
safety of any individual;
(h) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of any agency
responsible for the regulation or supervision of financial
institutions;
(i) Geological and geophysical information and data, including
maps, regarding wells. Any reasonably segregable portion of a record
shall be provided to any person requesting the record after deletion of
the portions that are exempt under this section; or
(j) Whenever a request is made that involves access to records
described in paragraph (g)(1) of this section and the investigation or
proceeding involves a possible violation of criminal law; and there is
reason to believe that the subject of the investigation or proceeding
is not aware of its pendency, and disclosure of the existence of the
records could reasonably be expected to interfere with enforcement
proceedings, FEMA may, during only such time as that circumstance
continues, treat the records as not subject to the requirements of 5
U.S.C. 552 and this subpart.
Sec. 5.72 Executive privilege exemption.
Where application of the executive privilege exemption is desired,
the matter shall be forwarded to the Director for consideration. If the
request for information is from a congressional source, only the
President may invoke the exemption. Presidential approval is not
necessarily required if the request for information is in connection
with judicial or adjudicatory proceedings or otherwise. In connection
with judicial proceedings, the response shall be coordinated with the
Department of Justice.
Subpart F--Subpoenas or Other Legal Demands for Testimony or the
Production or Disclosure of Records or Other Information
Sec. 5.80 Scope and applicability.
(a) This subpart sets forth policies and procedures with respect to
the disclosure or production by FEMA employees, in response to a
subpoena, order or other demand of a court or other authority, of any
material contained in the files of the Agency or any information
relating to material contained in the files of the Agency or any
information acquired by an employee as part of the performance of that
person's official duties or because of that person's official status.
(b) This subpart applies to State and local judicial,
administrative and legislative proceedings, and federal judicial and
administrative proceedings.
(c) This subpart does not apply to congressional requests or
subpoenas for testimony or documents, or to an employee making an
appearance solely in his or her private capacity in judicial or
administrative proceedings that do not relate to the Agency (such as
cases
[[Page 45992]]
arising out of traffic accidents, domestic relations, etc.).
Sec. 5.81 Statement of policy.
(a) It is the policy of FEMA to make its records available to
private litigants to the same extent and in the same manner as such
records are made available to members of the general public, except
where protected from disclosure by litigation procedural authority
(e.g., Federal Rules of Civil Procedure) or other applicable law.
(b) It is FEMA's policy and responsibility to preserve its human
resources for performance of the official functions of the Agency and
to maintain strict impartiality with respect to private litigants.
Participation by FEMA employees in private litigation in their official
capacities is generally contrary to this policy.
Sec. 5.82 Definitions.
For purposes of this subpart, the following terms have the meanings
ascribed to them in this section:
(a) Demand refers to a subpoena, order, or other demand of a court
of competent jurisdiction, or other specific authority (e.g., an
administrative or State legislative body), signed by the presiding
officer, for the production, disclosure, or release of FEMA records or
information or for the appearance and testimony of FEMA personnel as
witnesses in their official capacities.
(b) Employee of the Agency includes all officers and employees of
the United States appointed by or subject to the supervision,
jurisdiction or control of the Director of FEMA.
(c) Private litigation refers to any legal proceeding that does not
involve as a named party the United States Government, or the Federal
Emergency Management Agency, or any official thereof in his or her
official capacity.
Sec. 5.83 Authority to accept service of subpoenas.
In all legal proceedings between private litigants, a subpoena
duces tecum or subpoena ad testificandum or other demand by a court or
other authority for the production of records held by FEMA Regional
offices or for the oral or written testimony of FEMA Regional employees
should be addressed to the appropriate Regional Director listed in
Sec. 5.26. For records or testimony of the Office of Inspector General,
the subpoena should be addressed to the Inspector General, Federal
Emergency Management Agency, 500 C Street SW., Washington, DC 20472.
For all other records or testimony, the subpoena should be addressed to
the General Counsel, Federal Emergency Management Agency, 500 C Street
SW., Washington, DC 20472. No other official or employee of FEMA is
authorized to accept service of subpoenas on behalf of the Agency.
Sec. 5.84 Production of documents in private litigation.
(a) The production of records held by FEMA in response to a
subpoena duces tecum or other demand issued pursuant to private
litigation, whether or not served in accordance with the provisions of
Sec. 5.83 of this subpart, is prohibited absent authorization by the
General Counsel or, as to records of the Office of the Inspector
General, by the Inspector General.
(b) Whenever an official or employee of FEMA, including any
Regional Director, receives a subpoena or other demand for the
production of Agency documents or material, he or she shall immediately
notify and provide a copy of the demand to the General Counsel, unless
the subpoena or demand seeks the production of documents or material
maintained by the Office of Inspector General, in which case a copy of
the demand shall be provided to the Inspector General.
(c) The General Counsel (or Inspector General), after consultation
with other appropriate officials as deemed necessary, shall promptly
determine whether to disclose the material or documents identified in
the subpoena or other demand. Generally, authorization to furnish the
requested material or documents shall not be withheld unless their
disclosure is prohibited by relevant law or for other compelling
reasons.
(d) Whenever a subpoena or demand commanding the production of any
record is served upon any Agency employee other than as provided in
Sec. 5.83 of this subpart, or the response to a demand is required
before the receipt of instructions from the General Counsel (or
Inspector General), such employee shall appear in response thereto,
respectfully decline to produce the record(s) on the ground that it is
prohibited by this section and state that the demand has been referred
for the prompt consideration of the General Counsel (or, where
appropriate, the Inspector General).
(e) Where the release of documents in response to a subpoena duces
tecum is authorized by the General Counsel (or, as to documents
maintained by the Office of Inspector General, the Inspector General),
the official having custody of the requested records will furnish, upon
the request of the party seeking disclosure, authenticated copies of
the documents. No official or employee of FEMA shall respond in strict
compliance with the terms of a subpoena duces tecum unless specifically
authorized by the General Counsel (or Inspector General).
Sec. 5.85 Authentication and attestation of copies.
The Director, Deputy Director, Associate Directors, Executive
Associate Directors, Administrators, Executive Administrators, the
General Counsel, the Deputy General Counsel, the Rules Docket Clerk,
Inspector General, Regional Directors, and their designees, and other
heads of offices having possession of records are authorized in the
name of the Director to authenticate and attest for copies or
reproductions of records. Appropriate fees will be charged for such
copies or reproductions based on the fee schedule set forth in
Sec. 5.46 of this part.
Sec. 5.86 Production of documents in litigation or other adjudicatory
proceeding in which the United States is a party.
Subpoenas duces tecum issued pursuant to litigation or any other
adjudicatory proceeding in which the United States is a party shall be
referred to the General Counsel.
Sec. 5.87 Testimony of FEMA employees in private litigation.
(a) No FEMA employee shall testify in response to a subpoena or
other demand in private litigation as to any information relating to
material contained in the files of the Agency, or any information
acquired as part of the performance of that person's official duties or
because of that person's official status, including the meaning of
Agency documents.
(b) Whenever a demand is made upon a FEMA employee, other than an
employee of the Office of Inspector General, for the disclosure of
information described in paragraph (a) of this section, that employee
shall immediately notify the Office of General Counsel. Employees of
the Office of Inspector General shall notify the Inspector General of
such demands. The General Counsel (or Inspector General through
designated legal counsel), upon receipt of such notice and absent
waiver of the general prohibition against employee testimony at his or
her discretion, shall arrange with the appropriate United States
Attorney to take steps to quash the subpoena or to seek a protective
order.
(c) If an immediate demand for testimony or disclosure is made that
would preclude prior notice to and consultation with the General
Counsel (or Inspector General), the employee shall respectfully request
from the
[[Page 45993]]
demanding authority a stay in the proceedings to allow sufficient time
to obtain advice of counsel.
(d) If the court or other authority declines to stay the effect of
the demand in response to a request made in accordance with paragraph
(c) of this section pending consultation with counsel, or if the court
or other authority rules that the demand must be complied with
irrespective of instructions not to testify or disclose the information
sought, the employee upon whom the demand has been made shall
respectfully decline to comply with the demand, citing these
regulations and United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Sec. 5.88 Testimony in litigation in which the United States is a
party.
(a) Whenever, in any legal proceeding where the United States is a
party, the attorney in charge of presenting the case for the United
States requests it, the General Counsel shall arrange for an employee
of the Agency to testify as a witness for the United States.
(b) The attendance and testimony of named employees of the Agency
may not be required in any legal proceeding by the judge or other
presiding officer, by subpoena or otherwise. However, the judge or
other presiding officer may, upon a showing of exceptional
circumstances (such as a case in which a particular named FEMA employee
has direct personal knowledge of a material fact not known to the
witness made available by the Agency) require the attendance and
testimony of named FEMA personnel.
Sec. 5.89 Waiver.
The General Counsel (or, as to employees of the Office of Inspector
General, the Inspector General) may grant, in writing, a waiver of any
policy or procedure prescribed by this subpart, where waiver is
considered necessary to promote a significant interest of the Agency or
for other good cause. In granting such waiver, the General Counsel (or
Inspector General) shall attach to the waiver such reasonable
conditions and limitations as are deemed appropriate in order that a
response in strict compliance with the terms of a subpoena duces tecum
or the providing of testimony will not interfere with the duties of the
employee and will otherwise conform to the policies of this part. The
Director may, in his or her discretion, review any decision to
authorize a waiver of any policy or procedure prescribed by this
subpart.
Dated: July 30, 1998.
James L. Witt,
Director.
[FR Doc. 98-22971 Filed 8-27-98; 8:45 am]
BILLING CODE 6718-01-P
