Production or Disclosure of Information

Federal RegisterAug 28, 1998

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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 [email protected].

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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;

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.

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.

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.

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.

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

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.