[Title 44 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2016 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 44
Emergency Management and Assistance
Revised as of October 1, 2016
Containing a codification of documents of general
applicability and future effect
As of October 1, 2016
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 44:
Chapter I--Federal Emergency Management Agency,
Department of Homeland Security 3
Chapter IV--Department of Commerce and Department of
Transportation 577
Finding Aids:
Table of CFR Titles and Chapters........................ 585
Alphabetical List of Agencies Appearing in the CFR...... 605
List of CFR Sections Affected........................... 615
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 44 CFR 1.1 refers to
title 44, part 1, section
1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2016), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
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those instances where a regulation published in the Federal Register
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
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if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
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the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
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The e-CFR is a regularly updated, unofficial editorial compilation
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of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register.
October 1, 2016.
[[Page ix]]
THIS TITLE
Title 44--Emergency Management and Assistance is composed of one
volume. The contents of this volume represent all current regulations
codified under this title of the CFR as of October 1, 2016.
For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum
Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE
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Part
chapter i--Federal Emergency Management Agency, Department
of Homeland Security...................................... 1
chapter iv--Department of Commerce and Department of
Transportation............................................ 401
[[Page 3]]
CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF HOMELAND
SECURITY
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Editorial Note: Nomenclature changes to chapter I appear at 74 FR
15331, Apr. 3, 2009.
SUBCHAPTER A--GENERAL
Part Page
0
General statements of policy [Reserved]
1 Rulemaking; policy and procedures........... 7
2 OMB control numbers......................... 13
3 [Reserved]
4 Intergovernmental review of Federal
Emergency Management Agency (FEMA)
programs and activities................. 14
5 Production or disclosure of information..... 17
6 Implementation of the Privacy Act of 1974... 33
7 Nondiscrimination in federally-assisted
programs (FEMA Reg. 5).................. 51
8 [Reserved]
9 Floodplain management and protection of
wetlands................................ 67
10 [Reserved]
11 Claims...................................... 87
12-14 [Reserved]
15 Conduct at the Mt. Weather Emergency
Assistance Center and at the National
Emergency Training Center............... 98
16 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Federal
Emergency Management Agency............. 102
17 [Reserved]
18 New restrictions on lobbying................ 108
19 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 120
20-24 [Reserved]
[[Page 4]]
25 Uniform relocation assistance and real
property acquisition for Federal and
federally assisted programs............. 136
26-49 [Reserved]
SUBCHAPTER B--INSURANCE AND HAZARD MITIGATION
50-54 [Reserved]
NATIONAL INSURANCE DEVELOPMENT PROGRAM
55-58 [Reserved]
NATIONAL FLOOD INSURANCE PROGRAM
59 General provisions.......................... 137
60 Criteria for land management and use........ 153
61 Insurance coverage and rates................ 169
62 Sale of insurance and adjustment of claims.. 219
63 Implementation of section 1306(c) of the
National Flood Insurance Act of 1968.... 236
64 Communities eligible for the sale of
insurance............................... 241
65 Identification and mapping of special hazard
areas................................... 244
66 Consultation with local officials........... 261
67 Appeals from proposed flood elevation
determinations.......................... 262
68 Administrative hearing procedures........... 266
69 [Reserved]
70 Procedure for map correction................ 268
71 Implementation of coastal barrier
legislation............................. 270
72 Procedures and fees for processing map
changes................................. 274
73 Implementation of section 1316 of the
National Flood Insurance Act of 1968.... 277
74 [Reserved]
75 Exemption of State-owned properties under
self-insurance plan..................... 278
76-77 [Reserved]
78 Flood mitigation assistance................. 281
79 Flood mitigation grants..................... 284
80 Property acquisition and relocation for open
space................................... 293
81-149 [Reserved]
SUBCHAPTER C--FIRE PREVENTION AND CONTROL
150 Public safety awards to public safety
officers................................ 302
151 Reimbursement for costs of firefighting on
Federal property........................ 305
152 Assistance to firefighters grant program.... 310
[[Page 5]]
153-199 [Reserved]
SUBCHAPTER D--DISASTER ASSISTANCE
200 [Reserved]
201 Mitigation planning......................... 319
202-203 [Reserved]
204 Fire Management Assistance Grant Program.... 329
205 [Reserved]
206 Federal disaster assistance................. 339
207 Management costs............................ 456
208 National Urban Search and Rescue Response
System.................................. 462
209 Supplemental property acquisition and
elevation assistance.................... 477
210-294 [Reserved]
SUBCHAPTER E--CERRO GRANDE FIRE ASSISTANCE
295 Cerro Grande fire assistance................ 485
296-299 [Reserved]
SUBCHAPTER F--PREPAREDNESS
300 Disaster preparedness assistance............ 498
301 [Reserved]
302 Civil defense-State and local Emergency
Management Assistance Program (EMA)..... 499
303 [Reserved]
304 Consolidated grants to insular areas........ 508
305-311 [Reserved]
312 Use of civil defense personnel, materials,
and facilities for natural disaster
purposes................................ 509
313-320 [Reserved]
321 Maintenance of the mobilization base
(Department of Defense, Department of
Energy, Maritime Administration)........ 512
322 [Reserved]
323 Guidance on priority use of resources in
immediate post attack period (DMO-4).... 515
324-326 [Reserved]
327 Policy on use of Government-owned industrial
plant equipment by private industry
(DMO-10A)............................... 520
328 [Reserved]
329 Use of priorities and allocation authority
for Federal supply classification (FSC)
common use items (DMO-12)............... 522
[[Page 6]]
330 Policy guidance and delegation of
authorities for use of priorities and
allocations to maximize domestic energy
supplies in accordance with subsection
101(c) of the Defense Production Act of
1950, as amended (DMO-13)............... 523
331 Preservation of the mobilization base
through the placement of procurement and
facilities in labor surplus areas....... 524
332 Voluntary agreements under section 708 of
the Defense Production Act of 1950, as
amended................................. 525
333 [Reserved]
334 Graduated mobilization response............. 529
335-349 [Reserved]
350 Review and approval of State and local
radiological emergency plans and
preparedness............................ 532
351 Radiological emergency planning and
preparedness............................ 542
352 Commercial nuclear power plants: emergency
preparedness planning................... 548
353 Fee for services in support, review and
approval of State and local government
or licensee radiological emergency plans
and preparedness........................ 554
354 Fee for services to support FEMA'S offsite
Radiological Emergency Preparedness
Program................................. 562
355-359 [Reserved]
360 State assistance programs for training and
education in comprehensive emergency
management.............................. 566
361 National earthquake hazards reduction
assistance to State and local
governments............................. 569
362 Criteria for acceptance of gifts, bequests,
or services............................. 574
363-399 [Reserved]
[[Page 7]]
SUBCHAPTER A_GENERAL
PART 0_GENERAL STATEMENTS OF POLICY [RESERVED]
PART 1_RULEMAKING; POLICY AND PROCEDURES--Table of Contents
Subpart A_General
Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Scope.
1.4 Policy and procedures.
1.5 Rules docket.
1.6 Ex parte communications.
1.7 Regulations agendas.
1.8 Regulations review.
1.9 Regulatory impact analyses.
Subpart B_Procedures for Rulemaking
1.10 Initiation of rulemaking.
1.11 Advance notice of proposed rulemaking.
1.12 Notice of proposed rulemaking.
1.13 Participation by interested persons.
1.14 Additional rulemaking proceedings.
1.15 Hearings.
1.16 Adoption of a final rule.
1.17 Petitions for reconsideration.
1.18 Petition for rulemaking.
Authority: 5 U.S.C. 551, 552, 553; 5 U.S.C. 601, et seq.; E.O.
12291. Reorganization Plan No. 3 of 1978; E.O. 12127; E.O. 12148.
Source: 46 FR 32584, June 24, 1981, unless otherwise noted.
Subpart A_General
Sec. 1.1 Purpose.
(a) This part contains the basic policies and procedures of the
Federal Emergency Management Agency (FEMA) for adoption of rules. These
policies and procedures incorporate those provisions of section 4 of the
Administrative Procedure Act (APA) (5 U.S.C. 553) which FEMA will
follow. This part and internal FEMA Manuals implement Executive Order
12291.
(b) Rules which must be published are described in section 3(a) of
the APA, 5 U.S.C. 552(a). FEMA implementation of paragraph (a) is
contained in 44 CFR part 5, subpart B.
(c) This part contains policies and procedures for implementation of
the Regulatory Flexibility Act which took effect January 1, 1981.
(d) A FEMA Manual No. 1140.1, ``The Formulation, Drafting,
Clearance, and Publication of Federal Register Documents'' has been
issued describing the internal procedures including policy level
oversight of FEMA for:
(1) Publishing the semiannual agenda of significant regulations
under development and review;
(2) Making initial determinations with respect to significance of
proposed rulemaking;
(3) Determining the need for regulatory analyses; and
(4) Reviewing existing regulations, including the reviews required
by the Regulatory Flexibility Act.
(e) As the FEMA Manual deals with internal management it is not
subject to the requirements either of 5 U.S.C. 552 or 553. Its
provisions are not part of this rule and reference to it is informative
only.
[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]
Sec. 1.2 Definitions.
(a) Rule or regulation means the whole or a part of any agency
statement of general applicability and future effect designed to (1)
implement, interpret, or prescribe law or policy, or (2) describe
procedures or practice requirements. It includes any rule of general
applicability governing Federal grants to State and local governments
for which the agency provides an opportunity for notice and public
comment, except that the term rule does not include a rule of particular
applicability relating to rates, wages, prices, facilities, appliances,
services, or allowances therefor or to valuations, costs or accounting,
or practices relating to such rates, wages, structures, prices,
appliances, services, or allowances. For purposes of this part the term
rule does not include regulations issued with respect to a military or
foreign affairs function of the United States.
[[Page 8]]
(b) Rulemaking means the FEMA process for considering and
formulating the issuance, amendment or repeal of a rule.
(c) Administrator means the Administrator, FEMA, or an official to
whom the Administrator has expressly delegated authority to issue rules.
(d) FEMA means Federal Emergency Management Agency.
(e) Major rule means any regulation that is likely to result in:
(1) An annual effect on the economy of $100 million or more;
(2) A major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; or
(3) Significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic or export markets.
[46 FR 32584, June 24, 1981, as amended at 49 FR 38118, Sept. 27, 1984]
Sec. 1.3 Scope.
(a) This part prescribes general rulemaking procedures for the
issuance, amendment, or repeal of rules in which participation by
interested persons is required by 5 U.S.C. 553 or other statutes, by
Executive Order 12291, by FEMA policy, or by Sec. 1.4 of this part.
(b) Any delegation by the Administrator of authority to issue rules
may not be further redelegated, unless expressly provided for in the
delegation.
(c) This part does not apply to rules issued in accordance with the
formal rulemaking provisions of the Administrative Procedure Act (5
U.S.C. 556, 557).
Sec. 1.4 Policy and procedures.
(a) In promulgating new regulations, reviewing existing regulations,
and developing legislative proposals concerning regulation, FEMA, to the
extent permitted by law, shall adhere to the following requirements:
(1) Administrative decisions shall be based on adequate information
concerning the need for and consequences of proposed government action;
(2) Regulatory action shall not be undertaken unless the potential
benefits to society for the regulation outweigh the potential costs to
society;
(3) Regulatory objectives shall be chosen to maximize the net
benefits to society;
(4) Among alternative approaches to any given regulatory objective,
the alternative involving the least net cost to society shall be chosen;
and
(5) FEMA shall set regulatory priorities with the aim of maximizing
the aggregate net benefits to society, taking into account the condition
of the particular entities affected by regulations, the condition of the
national economy, and other regulatory actions contemplated for the
future.
(b) It is the policy of FEMA to provide for public participation in
rulemaking regarding its programs and functions, including matters that
relate to public property, loans, grants, or benefits, or contracts,
even though these matters are not subject to a requirement for notice
and public comment rulemaking by law.
(c) FEMA will publish notices of proposed rulemaking in the Federal
Register and will give interested persons an opportunity to participate
in the rulemaking through submission of written data, views, and
arguments with or without opportunity for oral presentation.
(d) In order to give the public, including small entities and
consumer groups, an early and meaningful opportunity to participate in
the development of rules, for a number of regulations the Administrator
will employ additional methods of inviting public participation. These
methods include, but are not limited to, publishing advance Notices of
Proposed Rulemaking (ANPR), which can include a statement with respect
to the impact of the proposed rule on small entities; holding open
conferences; convening public forums or panels, sending notices of
proposed regulations to publications likely to be read by those affected
and soliciting comment from interested parties by such means as direct
mail. An ANPR should be used to solicit public comment early in the
rulemaking process for significant rules.
(e) It is the policy of FEMA that its notices of proposed rulemaking
are to afford the public at least sixty days for
[[Page 9]]
submission of comments unless the Administrator makes an exception and
sets forth the reasons for the exception in the preamble to the notice
of proposed rulemaking. This period shall also include any period of
review required by the Office of Management and Budget in accordance
with the Paperwork Reduction Act of 1980.
(f) Unless required by statute or Executive Order, notice and public
procedure may be omitted if the Administrator, for good cause,
determines in a particular case or class of cases that notice and public
procedure is impractical, unnecessary or contrary to the public interest
and sets forth the reason for the determination in the rulemaking
document or, for a class of cases, in a published rule or statement of
policy. In a particular case, the reasons for the determination will be
stated in the rulemaking document. Notice and public procedure may also
be omitted with respect to statements of policy, interpretative rules,
rules governing FEMA's organization or its own internal practices or
procedures, or if a statute expressly authorizes omission.
(g) A final substantive rule will be published not less than 30 days
before its effective date unless it grants or recognizes an exemption or
relieves a restriction or unless the rulemaking document states good
cause for its taking effect less than 30 days after publication.
Statements of policy and interpretative rules will usually be made
effective on the date of publication.
(h) This part shall not apply to any regulation that responds to an
emergency situation, provided that, any such regulation shall be
reported to the Director, Office of Management and Budget, as soon as is
practicable. FEMA shall publish in the Federal Register a statement of
the reasons why it is impracticable for the agency to follow the
procedures of Executive Order 12866 with respect to such a rule, and the
agency shall prepare and transmit, if needed, as soon as is practicable
a Regulatory Impact Analysis of any such major rule.
[46 FR 32584, June 24, 1981, as amended at 49 FR 38119, Sept. 27, 1984;
50 FR 40004, Oct. 1, 1985]
Sec. 1.5 Rules docket.
(a) Documents which are public records and which are a part of a
specific rulemaking procedure, including but not limited to, advance
notices of proposed rulemaking, notices of proposed rulemaking, written
comments addressed to the merits of a proposed rule, and comments
received in response to notices, or withdrawals or terminations of
proposed rulemaking, petitions for rulemaking, requests for oral
argument in public participation cases, requests for extension of time,
grants or denials of petitions or requests, transcripts or minutes of
informal hearings, final rules and general notices shall be maintained
in the Office of Chief Counsel. All public rulemaking comments should
refer to the docket number which appears in the heading of the rule and
should be addressed to the Rule Docket Clerk, Federal Emergency
Management Agency, Office of Chief Counsel.
(b) Documents which are a part of a specific rulemaking proceeding
are public records. After a docket is established, any person may
examine docketed material at any time during established hours of
business and may obtain a copy of any docketed material upon payment of
the prescribed fee. (See part 5 of this chapter.)
[46 FR 32584, June 24, 1981, as amended at 48 FR 44542, Sept. 29, 1983]
Sec. 1.6 Ex parte communications.
In rulemaking proceedings subject only to the procedural
requirements of 5 U.S.C. 553:
(a) All oral communications from outside FEMA of significant
information and argument respecting the merits of a proposed rule,
received after notice of proposed informal rulemaking and in its course
by FEMA or its offices and divisions or their personnel participating in
the decision, should be summarized in writing and placed promptly in the
Rules Docket File available for public inspection.
(b) FEMA may conclude that restrictions on ex parte communications
in particular rulemaking proceedings are necessitated by consideration
of fairness or for other reasons.
[[Page 10]]
Sec. 1.7 Regulations agendas.
(a) The FEMA semi-annual agenda called for by Executive Order 12291
will be part of the Unified Agenda of Federal Regulations published in
April and October of each year.
(b) In accordance with 5 U.S.C. 605, the regulatory flexibility
agenda required by 5 U.S.C. 602 and the list of rules, if any, to be
reviewed pursuant to 5 U.S.C. 610 shall be included in the FEMA
semiannual agenda described in paragraph (a) of this section.
(c) The semiannual agenda shall, among other items, include:
(1) A summary of the nature of each major rule being considered, the
objectives and legal basis for the issuance of the rule, and an
approximate schedule for completing action on any major rule for which
the agency has issued a notice of proposed rulemaking.
(2) The name and telephone number of a knowledgeable agency official
for each item on the agenda; and
(3) A list of existing regulations to be reviewed under the terms of
the Order and a brief discussion of each such regulation.
[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]
Sec. 1.8 Regulations review.
(a) As part of the semiannual agenda described in Sec. 1.7 of this
part, FEMA will publish in the Federal Register and keep updated a plan
for periodic review of existing rules at least within 10 years from date
of publication of a rule as final. This includes those that have
significant impact on a substantial number of small entities.
(b) The purpose of the review shall be to determine whether such
rules should be continued without change, or should be amended or
rescinded, consistent with the stated objectives of applicable statutes,
including minimizing any significant economic impact of the rules upon a
substantial number of small entities.
(c) In reviewing rules FEMA shall consider the following factors:
(1) The continued need for the rule;
(2) The nature, type and number of complaints or comments received
concerning the rule from the public;
(3) The complexity of the rule, including need for review of
language for clarity;
(4) The extent to which the rule overlaps, duplicates or conflicts
with other Federal rules, and, to the extent feasible, with State and
local governmental rules; and
(5) The length of time since the rule has been evaluated or the
degree to which technology, economic conditions, or other factors have
changed in the area affected by the rule.
Sec. 1.9 Regulatory impact analyses.
(a) FEMA shall, in connection with any major rule, prepare and
consider a Regulatory Impact Analysis. Such analysis may be combined
with the Regulatory Flexibility Analysis described in Secs. 1.12(f) and
1.16(c) of this part.
(b) FEMA shall initially determine whether a rule it intends to
propose or to issue is a major rule and, if a major rule, shall prepare
Regulatory Impact Analyses and transmit them, along with all notices of
proposed rulemaking and all final rules, to the Director, Office of
Management and Budget, as follows:
(1) If no notice of proposed rulemaking is to be published for a
proposed major rule that is not an emergency rule, the agency shall
prepare only a final Regulatory Impact Analysis, which shall be
transmitted, along with the proposed rule, to the Director, Office of
Management and Budget, at least 60 days prior to the publication of the
major rule as a final rule;
(2) With respect to all other major rules, FEMA shall prepare a
preliminary Regulatory Impact Analysis, which shall be transmitted,
along with a notice of proposed rulemaking, to the Director, Office of
Management and Budget, at least 60 days prior to the publication of a
notice of proposed rulemaking, and a final Regulatory Impact Analysis,
which shall be transmitted along with the final rule at least 30 days
prior to the publication of the major rule as a final rule;
(3) For all rules other than major rules, FEMA shall, unless an
exemption has been granted, submit to the Director, Office of Management
and
[[Page 11]]
Budget, at least 10 days prior to publication, every notice of proposed
rulemaking and final rule.
(c) To permit each major rule to be analyzed in light of the
requirements stated in section 2 of Executive Order 12291, each
preliminary and final Regulatory Impact Analysis shall contain the
following information:
(1) A description of the potential benefits of the rule, including
any beneficial effects that cannot be quantified in monetary terms, and
the identification of those likely to receive the benefits;
(2) A description of the potential costs of the rule, including any
adverse effects that cannot be quantified in monetary terms, and the
identification of those likely to bear the costs;
(3) A determination of the potential net benefits of the rule,
including an evaluation of effects that cannot be quantified in monetary
terms;
(4) A description of alternative approaches that could substantially
achieve the same regulatory goal at lower cost, together with an
analysis of this potential benefit and costs and a brief explanation of
the legal reasons why such alternatives, if proposed, could not be
adopted; and
(5) Unless covered by the description required under paragraph
(c)(4) of this section, an explanation of any legal reasons why the rule
cannot be based on the requirements set forth in section 2 of Executive
Order 12291.
Subpart B_Procedures for Rulemaking
Sec. 1.10 Initiation of rulemaking.
Rulemaking may be initiated on the Administrator's motion or upon
motion of an official to whom rulemaking authority has been delegated.
Rulemaking may also be initiated on the petition of any interested
person in accordance with the provisions of Sec. 1.18. Interested person
includes a Federal, State, or local government or government agency.
Sec. 1.11 Advance notice of proposed rulemaking.
An Advance Notice of Proposed Rulemaking will be published in the
Federal Register and contains:
(a) A description of the proposed new program or program changes,
and why they are needed;
(b) A presentation of the major policy issues involved;
(c) A request for comments, both specific and general, on the need
for the proposed rule and the provisions that the rule might include;
(d) If appropriate, a list of questions about the proposal which
seeks to bring out detailed comments;
(e) If known, an estimate of the reporting or recordkeeping
requirements, if any, that the rule would impose; and
(f) The time within which comments may be submitted to the Rules
Docket Clerk, Federal Emergency Management Agency, Washington, DC 20472.
[46 FR 32584, June 24, 1981, as amended at 48 FR 44542, Sept. 29, 1983;
49 FR 33879, Aug. 27, 1984]
Sec. 1.12 Notice of proposed rulemaking.
Each notice of proposed rulemaking required by statute, executive
order, or by Sec. 1.4 will be published in the Federal Register and will
include:
(a) The substance or terms of the proposed rule or a description of
the subject matter and issues involved.
(b) A statement of how and to what extent interested persons may
participate in the proceeding.
(c) Where participation is limited to written comments, a statement
of the time within which such comments must be submitted.
(d) A reference to the legal authority under which the proposal is
issued.
(e) In a proceeding which has provided Advance Notice of Proposed
Rulemaking, an analysis of the principal issues and recommendations
raised by the comments, and the manner in which they have been addressed
in the proposed rulemaking.
(f)(1) A brief statement setting forth the agency's initial
determination whether the proposed rule is a major rule, together with
the reasons underlying that determination;
(2) For each proposed major rule, a brief summary of the agency's
preliminary Regulatory Impact Analysis; and
(3) The initial regulatory flexibility analysis or a summary thereof
as required by the Regulatory Flexibility
[[Page 12]]
Act (5 U.S.C. 601, et seq.), or a certification that the rule, if
promulgated, will not have a significant economic impact on a
significant number of small entities pursuant to 5 U.S.C. 605. Such
certification may be made by any FEMA official with rulemaking
authority.
(g) It is desirable, but not required, that the notices contain a
target deadline for issuance of the regulation, and that to the extent
feasible, this deadline be met.
(h) If the rule is one which contains a requirement for collection
of information, a copy of the rule will be furnished OMB in accordance
with 44 U.S.C. 3504(h).
[46 FR 32584, June 24, 1981, as amended at 49 FR 38119, Sept. 27, 1984]
Sec. 1.13 Participation by interested persons.
(a) Unless the notice otherwise provides, any interested person may
participate in rulemaking proceedings by submitting written data, views
or arguments within the comment time stated in the notice. In addition,
the Administrator may permit the filing of comments in response to
original comments.
(b) In appropriate cases, the Administrator may provide for oral
presentation of views in additional proceedings described in Sec. 1.14.
(c) Copies of regulatory flexibility analyses shall be furnished the
Chief Counsel for Advocacy of the Small Business Administration.
Sec. 1.14 Additional rulemaking proceedings.
The Administrator may invite interested persons to present oral
arguments, appear at informal hearings, or participate in any other
procedure affording opportunity for oral presentation of views. The
transcript or minutes of such meetings, as appropriate, will be kept and
filed in the Rules Docket.
Sec. 1.15 Hearings.
(a) The provisions of 5 U.S.C. 556 and 557, which govern formal
hearings in adjudicatory proceedings, do not apply to informal
rulemaking proceedings described in this part. When opportunity is
afforded for oral presentation, the informal ``hearing'' is a
nonadversary, fact-finding proceeding. Any rule issued in a proceeding
under this part in which a hearing is held need not be based exclusively
on the record of such hearing.
(b) When a hearing is provided, the Administrator will designate a
representative to conduct the hearing.
Sec. 1.16 Adoption of a final rule.
(a) All timely comments will be considered in taking final action on
a proposed rule. Each preamble to a final rule will contain a short
analysis and evaluation of the relevant significant issues set forth in
the comments submitted, and a clear concise statement of the basis and
purpose of the rule.
(b) When determined necessary by the Administrator in accordance
with the provisions of 1 CFR 18.12, the preamble shall contain the
following information:
(1) A discussion of the background and major issues involved;
(2) In the case of a final rule, any significant differences between
it and the proposed rule;
(3) A response to substantive public comments received; and
(4) Any other information the Administrator considers appropriate.
(c) At the time of publication of the final rule, a statement shall
be published describing how the public may obtain copies of the final
regulatory flexibility analysis which must be prepared in accordance
with 5 U.S.C. 604 unless the procedure for waiver or delay of completion
under 5 U.S.C. 608 is followed.
(d) Before approving any final major rule FEMA will:
(1) Make a determination that the regulation is clearly within the
authority delegated by law and consistent with congressional intent and
include in the Federal Register at the time of promulgation a memorandum
of law supporting that determination; and
(2) Make a determination that the factual conclusions upon which the
rule is based have substantial support in the agency record, viewed as a
whole, with full attention to public
[[Page 13]]
comments in general and the comments of persons directly affected by the
rule in particular.
Sec. 1.17 Petitions for reconsideration.
Petitions for reconsideration of a final rule will not be
considered. Such petitions, if filed, will be treated as petitions for
rulemaking in accordance with Sec. 1.18.
Sec. 1.18 Petition for rulemaking.
(a) Any interested person may petition the Administrator for the
issuance, amendment, or repeal of a rule. For purposes of this section
the term person includes a Federal, State or local government or
government agency. Each petition shall:
(1) Be submitted to the Rules Docket Clerk;
(2) Set forth the substance of the rule or amendment proposed or
specify the rule sought to be repealed or amended;
(3) Explain the interest of the petitioner in support of the action
sought; and
(4) Set forth all data and arguments available to the petitioner in
support of the action sought.
(b) No public procedures will be held directly on the petition
before its disposition. If the Administrator finds that the petition
contains adequate justification, a rulemaking proceeding will be
initiated or a final rule will be issued as appropriate. If the
Administrator finds that the petition does not contain adequate
justification, the petition will be denied by letter or other notice,
with a brief statement of the ground for denial. The Administrator may
consider new evidence at any time; however, repetitious petitions for
rulemaking will not be considered.
PART 2_OMB CONTROL NUMBERS--Table of Contents
Sec.
2.1 Purpose.
2.2 OMB control numbers assigned to information collections.
Authority: 5 U.S.C. 552; 42 U.S.C. 3507; Reorganization Plan No. 3
of 1978, 5 U.S.C. App. 1; E.O. 12127, 3 CFR, 1979 Comp., p. 376; E.O.
12148, as amended, 3 CFR, 1979 Comp., p. 412.
Source: 74 FR 15332, Apr. 3, 2009, unless otherwise noted.
Sec. 2.1 Purpose.
This part collects and displays the control numbers assigned to
information collection requirements of FEMA by the Office of Management
and Budget (OMB) pursuant to the Paperwork Reduction Act of 1980 (44
U.S.C. 3501 et seq.). FEMA intends that this part comply with the
requirements of section 3507(f) of the Paperwork Reduction Act, which
requires that agencies display a current control number assigned by the
Director of OMB for each agency information collection requirement.
Sec. 2.2 OMB control numbers assigned to information collections.
----------------------------------------------------------------------------------------------------------------
44 CFR part or section where identified or
described Current OMB Control No.
----------------------------------------------------------------------------------------------------------------
59............................................ 1660-0023
59.22......................................... 1660-0003, 1660-0004
59 subpart C.................................. 1660-0045
60.6, 60.3.................................... 1660-0033
61.13......................................... 1660-0006
62 subpart B.................................. 1660-0005,1660-0095
62.23(l)...................................... 1660-0086
62.24......................................... 1660-0020, 1660-0038
65, 70 generally.............................. 1660-0037
71.4.......................................... 1660-0010
72............................................ 1660-0015, 1660-0016
75.11......................................... 1660-0013
78............................................ 1660-0062, 1660-0072,1660-0075
79.7(d)....................................... 1660-0104
80............................................ 1660-0103
151.11........................................ 1660-0014
152.4, 152.7.................................. 1660-0069
201........................................... 1660-0062, 1660-0072, 1660-0103
204........................................... 1660-0058
206 subpart B: 206.34, 206.35, 206.36, 206.46, 1660-0009
206.47.
206 subpart D: 206.101(e), 202.110, 206.117, 1660-0002
206.119.
206.112, 206.114, 206.115..................... 1660-0061
206.171....................................... 1660-0085
206.202(f)(2), 206.203(c), 206.203(d)(i), 1660-0017
206.204(f).
[[Page 14]]
206 subpart K................................. 1660-0082, 1660-0083
206 subpart N................................. 1660-0076
206.437....................................... 1660-0026
206.440....................................... 1660-0076
208........................................... 1660-0073
352........................................... 1660-0024
----------------------------------------------------------------------------------------------------------------
PART 3 [RESERVED]
PART 4_INTERGOVERNMENTAL REVIEW OF FEDERAL EMERGENCY MANAGEMENT AGENCY
(FEMA) PROGRAMS AND ACTIVITIES--Table of Contents
Sec.
4.1 What is the purpose of these regulations?
4.2 What definitions apply to these regulations?
4.3 What programs and activities of FEMA are subject to these
regulations?
4.4 [Reserved]
4.5 What is the Administrator's obligation with respect to Federal
interagency coordination?
4.6 What procedures apply to the selection of programs and activities
under these regulations?
4.7 How does the Administrator communicate with State and local
officials concerning FEMA's programs and activities?
4.8 How does the Administrator provide an opportunity to comment on
proposed Federal financial assistance and direct Federal
development?
4.9 How does the Administrator receive and respond to comments?
4.10 How does the Administrator make efforts to accommodate
intergovernmental concerns?
4.11 What are the Administrator's obligations in interstate situations?
4.12 How may a State simplify, consolidate, or substitute federally
required State plans?
4.13 May the Administrator waive any provision of these regulations?
Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April
8, 1983 (48 FR 15887); sec. 401, Intergovernmental Cooperation Act of
1968, as amended (31 U.S.C. 6506); sec. 204, Demonstration Cities and
Metropolitan Development Act of 1966, as amended (42 U.S.C. 3334).
Source: 48 FR 29316, June 24, 1983, unless otherwise noted.
Editorial Note: For additional information, see related documents
published at 47 FR 57369, Dec. 23, 1982; 48 FR 17101, Apr. 21, 1983; and
48 FR 29096, June 24, 1983.
Sec. 4.1 What is the purpose of these regulations?
(a) The regulations in this part implement Executive Order 12372,
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982
and amended on April 8, 1983. These regulations also implement
applicable provisions of section 401 of the Intergovernmental
Cooperation Act of 1968 and section 204 of the Demonstration Cities and
Metropolitan Development Act of 1966.
(b) These regulations are intended to foster an intergovernmental
partnership and a strengthened Federalism by relying on state processes
and on State, areawide, regional and local coordination for review of
proposed Federal financial assistance and direct Federal development.
(c) These regulations are intended to aid the internal management of
FEMA, and are not intended to create any right or benefit enforceable at
law by a party against FEMA or its officers.
Sec. 4.2 What definitions apply to these regulations?
Administrator means the Administrator of FEMA or an official or
employee of FEMA acting for the Administrator of FEMA under a delegation
of authority.
FEMA means the Federal Emergency Management Agency.
Order means Executive Order 12372, issued July 14, 1982, and amended
April 8, 1983 and titled ``Intergovernmental Review of Federal
Programs.''
State means any of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of Northern Mariana
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust
Territory of the Pacific Islands.
[48 FR 29316, June 24, 1983, as amended at 74 FR 15332, Apr. 3, 2009]
[[Page 15]]
Sec. 4.3 What programs and activities of FEMA are subject to these
regulations?
The Administrator publishes in the Federal Register a list of FEMA's
programs and activities that are subject to these regulations and
identifies which of these are subject to the requirements of section 204
of the Demonstration Cities and Metropolitan Development Act.
Sec. 4.4 [Reserved]
Sec. 4.5 What is the Administrator's obligation with respect to
Federal interagency coordination?
The Administrator, to the extent practicable, consults with and
seeks advice from all other substantially affected Federal departments
and agencies in an effort to assure full coordination between such
agencies and FEMA regarding programs and activities covered under these
regulations.
Sec. 4.6 What procedures apply to the selection of programs and
activities under these regulations?
(a) A State may select any program or activity published in the
Federal Register in accordance with Sec. 4.3 of this part for
intergovernmental review under these regulations. Each State, before
selecting programs and activities, shall consult with local elected
officials.
(b) Each State that adopts a process shall notify the Administrator
of FEMA's programs and activities selected for that process.
(c) A State may notify the Administrator of changes in its
selections at any time. For each change, the State shall submit to the
Administrator an assurance that the State has consulted with local
elected officials regarding the change. FEMA may establish deadlines by
which States are required to inform the Administrator of changes in
their program selections.
(d) The Administrator uses a State's process as soon as feasible,
depending on individual programs and activities, after the Administrator
is notified of its selections.
Sec. 4.7 How does the Administrator communicate with State and local
officials concerning FEMA's programs and activities?
(a) For those programs and activities covered by a state process
under Sec. 4.6, the Administrator, to the extent permitted by law:
(1) Uses the state process to determine views of State and local
elected officials; and,
(2) Communicates with State and local elected officials, through the
state process, as early in a program planning cycle as is reasonably
feasible to explain specific plans and actions.
(b) The Administrator provides notice to directly affected State,
areawide, regional, and local entities in a State of proposed Federal
financial assistance or direct Federal development if:
(1) The State has not adopted a process under the Order; or
(2) The assistance or development involves a program or activity not
selected for the State process.
This notice may be made by publication in the Federal Register or other
appropriate means, which FEMA in its discretion deems appropriate.
Sec. 4.8 How does the Administrator provide an opportunity to comment
on proposed Federal financial assistance and direct Federal development?
(a) Except in unusual circumstances, the Administrator gives state
processes or directly affected State, areawide, regional and local
officials and entities at least 60 days from the date established by the
Administrator to comment on proposed direct Federal development or
Federal financial assistance.
(b) This section also applies to comments in cases in which the
review, coordination, and communication with FEMA have been delegated.
(c) Applicants for programs and activities subject to section 204 of
the Demonstration Cities and Metropolitan Act shall allow areawide
agencies a 60-day opportunity for review and comment.
[[Page 16]]
Sec. 4.9 How does the Administrator receive and respond to comments?
(a) The Administrator follows the procedures in Sec. 4.10 if:
(1) A State office or official is designated to act as a single
point of contact between a state process and all Federal agencies, and
(2) That office or official transmits a state process recommendation
for a program selected under Sec. 4.6.
(b)(1) The single point of contact is not obligated to transmit
comments from State, areawide, regional or local officials and entities
where there is no state process recommendation.
(2) If a state process recommendation is transmitted by a single
point of contact, all comments from state, areawide, regional, and local
officials and entities that differ from it must also be transmitted.
(c) If a State has not established a process, or is unable to submit
a state process recommendation, State, areawide, regional and local
officials and entities may submit comments to FEMA.
(d) If a program or activity is not selected for a state process,
State, areawide, regional and local officials and entities may submit
comments to FEMA. In addition, if a state process recommendation for a
nonselected program or activity is transmitted to FEMA by the single
point of contact, the Administrator follows the procedures of Sec. 4.10
of this part.
(e) The Administrator considers comments which do not constitute a
state process recommendation submitted under these regulations and for
which the Administrator is not required to apply the procedures of
Sec. 4.10 of this part, when such comments are provided by a single
point of contact, by the applicant or directly to FEMA by a commenting
party.
Sec. 4.10 How does the Administrator make efforts to accommodate
intergovernmental concerns?
(a) If a state process provides a state process recommendation to
FEMA through its single point of contact, the Administrator either:
(1) Accepts the recommendation;
(2) Reaches a mutually agreeable solution with the state process; or
(3) Provides the single point of contact with such written
explanation of the decision, as the Administrator in his or her
discretion deems appropriate. The Administrator may also supplement the
written explanation by providing the explanation to the single point of
contact by telephone, other telecommunication, or other means.
(b) In any explanation under paragraph (a)(3) of this section, the
Administrator informs the single point of contact that:
(1) FEMA will not implement its decision for at least ten days after
the single point of contact receives the explanation; or
(2) The Administrator has reviewed the decision and determined that,
because of unusual circumstances, the waiting period of at least ten
days is not feasible.
(c) For purposes of computing the waiting period under paragraph
(b)(1) of this section, a single point of contact is presumed to have
received written notification 5 days after the date of mailing of such
notification.
Sec. 4.11 What are the Administrator's obligations in interstate
situations?
(a) The Administrator is responsible for:
(1) Identifying proposed Federal financial assistance and direct
Federal development that have an impact on interstate areas;
(2) Notifying appropriate officials and entities in states which
have adopted a process and which select FEMA's program or activity;
(3) Making efforts to identify and notify the affected State,
areawide, regional, and local officials and entities in those States
that have not adopted a process under the Order or do not select FEMA's
program or activity;
(4) Responding pursuant to Sec. 4.10 of this part if the
Administrator receives a recommendation from a designated areawide
agency transmitted by a single point of contact, in cases in which the
review, coordination, and communication with FEMA have been delegated.
(b) The Administrator uses the procedures in Sec. 4.10 if a state
process provides a state process recommendation
[[Page 17]]
to FEMA through a single point of contact.
Sec. 4.12 How may a State simplify, consolidate, or substitute
federally required State plans?
(a) As used in this section:
(1) Simplify means that a State may develop its own format, choose
its own submission date, and select the planning period for a State
plan.
(2) Consolidate means that a State may meet statutory and regulatory
requirements by combining two or more plans into one document and that
the State can select the format, submission date, and planning period
for the consolidated plan.
(3) Substitute means that a State may use a plan or other document
that it has developed for its own purposes to meet Federal requirements.
(b) If not inconsistent with law, a State may decide to try to
simplify, consolidate, or substitute federally required state plans
without prior approval by the Administrator.
(c) The Administrator reviews each state plan that a State has
simplified, consolidated, or substituted and accepts the plan only if
its contents meet Federal requirements.
Sec. 4.13 May the Administrator waive any provision of these
regulations?
In an emergency, the Administrator may waive any provision of these
regulations.
PART 5_PRODUCTION OR DISCLOSURE OF INFORMATION--Table of Contents
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 Congressional information.
5.7 Records of other agencies.
5.8 Records involved in litigation or other judicial process.
5.9 Inconsistent issuances of FEMA and its predecessor agencies
superseded.
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 Availability 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 request.
5.54 Denial of request of 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.
[[Page 18]]
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; 6 U.S.C. 101 et seq;
Reorganization Plan No. 3 of 1978; E.O. 12127; and E.O. 12148.
Source: 44 FR 50287, Aug. 27, 1979, unless otherwise noted.
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.
For purposes of this part, the following terms have the meanings
ascribed to them in this section:
(a) Records. Records means all books, papers, maps, photographs, 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, utilization, or value. These items are considered exploitable
resources to be utilized in the best interest of all the public and are
not preserved for informational value nor 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 section 552(e) of title 5 U.S.C.,
includes any executive department, military department, government
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or any
independent regulatory agency.
(d) Headquarters FOIA Officer. The FOIA/Privacy Act Specialist or
his/her designee.
(e) Regional FOIA Officer. The Regional Administrator, or his/her
designee.
[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1421, Jan. 7, 1980; 51
FR 34604, Sept. 30, 1986]
[[Page 19]]
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 he provide
justification for the request.
(b) The requirement of 5 U.S.C. 552 that records be available to the
public refers only to records in being at the time the request for them
is made. FOIA imposes no obligation to compile a record in response to a
request.
Sec. 5.5 Exemptions.
Requests for FEMA records may be denied if disclosure is exempted
under the provisions of 5 U.S.C. 552, as outlined in subpart E. Usually,
except when a record is classified, or when disclosure would violate any
other Federal statute, the authority to withhold a record from
disclosure is permissive rather than mandatory. The authority for
nondisclosure will not be invoked unless there is compelling reason to
do so.
Sec. 5.6 Congressional information.
Nothing in this part authorizes withholding information from the
Congress except when executive privilege is invoked by the President.
Sec. 5.7 Records of other agencies.
If a request is submitted to FEMA to make available current records
which 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 Chief 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.
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.
[[Page 20]]
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 to 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 Chief Counsel, 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 which 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 which 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.
Sec. 5.26 Rules for public inspection and copying.
(a) Location. 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: 99 High Street, 6th Floor, Boston, Massachusetts 02110.
Region II: 26 Federal Plaza, Suite 1337, New York, New York 10278.
Region III: 615 Chestnut Street, One Independence Mall, 6th Floor,
Philadelphia, Pennsylvania 19106.
Region IV: 3003 Chamblee Tucker Road, Atlanta, Georgia 30341.
Region V: 536 South Clark Street, 6th Floor, Chicago, Illinois 60605.
Region VI: Federal Regional Center, 800 North Loop 288, Denton, Texas
76209.
Region VII: 9221 Ward Parkway, Suite 300, Kansas City, Missouri 64114.
Region VIII: Denver Federal Center, Building 710, Box 25267, Denver,
Colorado 80255.
Region IX: 1111 Broadway, Suite 1200, Oakland, California 94607.
Region X: Federal Regional Center, 130 228th Street SW, Bothell,
Washington 98021.
(b) Time. Materials will be made available for public inspection and
copying during the normal hours of business.
(c) 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.
[44 FR 50287, Aug. 27, 1979, as amended at 47 FR 13149, Mar. 29, 1982;
48 FR 44542, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985; 74 FR 15333,
Apr. 3, 2009]
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 Chief Counsel. A
[[Page 21]]
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 Administrator.
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.
Sec. 5.29 Effect of failure to make information materials available.
Materials requested to be made available pursuant to 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, the FEMA Library at www.FEMA.gov, or
from the FEMA Distribution Center at P.O. Box 2012, 8231 Stayton Drive,
Jessup, Maryland 20794 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.
[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983;
50 FR 40006, Oct. 1, 1985]
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
which 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 nor 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 and if
[[Page 22]]
the request does not include an agreement to pay all appropriate fees,
FEMA will process such request only up to the $30.00 threshold which is
the estimated cost to FEMA to collect fees which we are prohibited from
charging by law. Requesters must reasonably describe the records sought.
(2) When records are being requested by representatives of the news
media, the fee policy of FEMA is to levy reproduction charges only,
excluding charges for the first 100 pages. Representatives of the news
media refers to 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 that would
be of current interest to the public. Examples of news media entities
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 traditional methods of
news delivery evolve (i.e., electronic dissemination of newspapers
through telecommunications services), such alternative media would be
included in this category. In the case of ``freelance'' journalists,
they 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 basis as that term is defined under paragraph
(a)(1) of this section. A request for records supporting 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 which 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 qualifying 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.
(4) For any other request which 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.,
[[Page 23]]
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 which 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 portions of a document or documents, solely
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 section (4)(A)(iv) of the
Freedom of Information Act, as amended, FEMA shall not charge fees to
any requester, including commercial use requesters, if the cost of
collecting a fee would be equal to or greater than the fee itself.
(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
which 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, if the direct cost of
searching for and duplicating the records sought, excluding the first
two hours of search time and first 100 pages which are free of charge,
would not exceed $30.00, FEMA shall not charge the requester any costs.
[52 FR 13677, Apr. 24, 1987]
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.
(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 would
benefit the general public, the requester's and/or intended user's
identity and qualifications, expertise in the subject area and ability
and intention to disseminate the information to the public.
[52 FR 13678, Apr. 24, 1987]
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 charged 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
[[Page 24]]
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., 10 working days from the receipt of initial requests and 20
working days 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.
[52 FR 13678, Apr. 24, 1987]
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 requestor or to the
Headquarters FOIA Officer or Regional FOIA Officer, as appropriate.
[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983]
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. 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.
(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 $.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, 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.
(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 may be charged to those requesters who fail to pay fees
charged. FEMA may begin assessing interest
[[Page 25]]
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 section 3717 of Title 31 U.S.C. and will accrue from the date of the
billing.
(e) 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.
[52 FR 13678, Apr. 24, 1987, as amended at 52 FR 33410, Sept. 3, 1987]
Sec. 5.47 Appeals regarding fees.
A requestor whose application for a fee waiver or a fee reduction is
denied may appeal that decision to the Deputy Administrator 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 requestor pursuant to a
request which reasonably described such records unless FEMA invokes an
exemption pursuant to subpart E. Although the burden of reasonable
description of the records rests with the requestor, 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 which does not reasonably describe the
records requested, FEMA may contact the requestor to seek a more
specific description. The 10-day 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 on both the face of the request letter and the
envelope. The 10-day 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 which has custody of the record.
(b) 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 10 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 requestor and the Headquarters
FOIA Officer whether request originated in Headquarters, Region or
field.
[44 FR 50287, Aug. 27, 1979, as amended at 50 FR 40006, Oct. 1, 1985; 53
FR 2740, Feb. 1, 1988]
Sec. 5.53 Approval of request.
When a request is approved, records will be made available promptly
in accordance with the terms of the regulation. Copies may be furnished
or the
[[Page 26]]
records may be inspected and copied as provided in Sec. 5.26.
Sec. 5.54 Denial of request of records.
(a) Each of the following officials within FEMA, any official
designated to act for the official, or any official redelegated
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 Administrator(s).
(2) [Reserved]
(3) Federal Insurance Administrator.
(4) Assistant Administrators.
(5) United States Fire Administrator.
(6) Chief of Staff.
(7) Office Directors.
(8) Chief Counsel.
(9) [Reserved]
(10) Chief Financial Officer.
(11) Regional Administrators.
(b) If a request is denied, the appropriate official listed in
paragraph (a) of this section shall except as provided in Sec. 5.56
advise the requestor within 10 workdays of receipt of the request by the
official specified in Sec. 5.51 and furnish written reasons for the
denial. The denial will (1) describe the record or records requested,
(2) state the reasons for nondisclosure pursuant to subpart E, (3) state
the name and title or position of the official responsible for the
denial of such request, and (4) state the requestor's appeal rights.
(c) In the event FEMA cannot locate requested records the
appropriate official specified in paragraph (a) of this section will
inform the requestor (1) that the agency has determined at the present
time to deny the request because the records have not yet been found or
examined, but (2) 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 requestor may file an agency appeal immediately, pursuant to
Sec. 5.55.
[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983;
50 FR 40006, Oct. 1, 1985; 51 FR 34604, Sept. 30, 1986; 74 FR 15333,
Apr. 3, 2009]
Sec. 5.55 Appeal within FEMA of denial of request.
(a) A requestor denied access, in whole or in part, to FEMA records
may appeal that decision within FEMA. All appeals should be addressed 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
Administrator.
(b) An appeal must be received in the Headquarters FOIA Office no
later than thirty calendar days after receipt by the requestor of the
initial denial.
(c) An appeal must be in writing and should contain a brief
statement of the reasons why the records should be released and 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 twenty
workdays after the receipt of an appeal to make a determination with
respect to such appeal. The twenty day time limit shall not begin to run
until the appeal is received by the Headquarters FOIA Officer.
Misdirected appeals should be promptly forwarded to that office.
(d) The Headquarters FOIA Officer will submit the appeal to the
Deputy Administrator for final administrative determination.
(e) The Deputy Administrator shall be the deciding official on all
appeals except in those cases in which the initial denial was made by
him/her. If the Deputy Administrator made the initial denial, the
Administrator will be the deciding official on any appeal from that
denial. In the absence of the Deputy Administrator, or in case of a
vacancy in that office, the Administrator may designate another FEMA
official to perform the Deputy Administrator's functions.
(f) If an appeal is filed in response to a tentative denial pending
locating
[[Page 27]]
and/or examination of records, as described in Sec. 5.53(c), FEMA will
continue to search for and/or examine the requested records and will
issue a response immediately upon completion of the search and/or
examination. Such action in no way suspends the time for FEMA's response
to the requestor's appeal which FEMA will continue to process regardless
of the response under this paragraph.
(g) If a requestor files suit pending an agency appeal, FEMA
nonetheless will continue to process the appeal, and will furnish a
response within the twenty day time limit set out in paragraph (c) of
this section.
(h) If, on appeal, the denial of the request for records is in whole
or in part upheld, the Deputy Administrator will promptly furnish the
requestor a copy of the ruling in writing within the twenty day 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 requestor's rights of judicial review.
[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980; 50
FR 40006, Oct. 1, 1985]
Sec. 5.56 Extension of time limits.
In unusual circumstances as specified in this section, the time
limits prescribed in Secs. 5.52 and 5.55 may be extended by an official
named in Sec. 5.54(a) who will provide written notice to the requestor
setting forth the reasons for such extension and the date on which a
determination is expected. Such notice will specify no date that would
result in an extension of more than ten work days. In unusual
circumstances, the Headquarters FOIA Officer may authorize more than one
extension, divided between the initial request stage and the appeals
stage, but in no event will the combined periods of extension exceed ten
work days. As used in this section, ``unusual circumstances'' include
only those circumstances where extension of time is reasonably necessary
to the proper processing of the particular request. Examples include:
(a) 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; or
(b) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(c) The need for consultation, which shall be conducted with all
practicable speed, with another agency or with a non-Federal source
having a substantial interest in the determination of the request or
among two or more components of FEMA having substantial subject matter
interest therein.
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 (FOIA) 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 who provides confidential
commercial information to the government. The term submitter includes,
but is not limited to, 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
[[Page 28]]
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 working days 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 which is considered privileged or
confidential. Information provided by a submitter pursuant to this
paragraph may 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 working days after receipt of the
request by FEMA or 20 working days 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 which
shall include:
(1) A statement of the reasons for which 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 working days 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
[[Page 29]]
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.
[53 FR 2740, Feb. 1, 1988]
Sec. 5.58 Exhaustion of administrative remedies.
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.
[44 FR 50287, Aug. 27, 1979. Redesignated at 53 FR 2740, Feb. 1, 1988]
Sec. 5.59 Judicial relief available to the public.
Upon denial of a requestor's appeal by the Deputy Administrator the
requester may file a complaint in a 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).
[44 FR 50287, Aug. 27, 1979. Redesignated at 53 FR 2740, Feb. 1, 1988]
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
Administrator of FEMA and sends copies of the findings and
recommendations to the officer or employee or his or her representative.
The law requires the Administrator to take any corrective action which
the Special Counsel recommends.
[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980.
Redesignated and amended at 53 FR 2740, Feb. 1, 1988]
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).
[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980; 50
FR 40006, Oct. 1, 1985. Redesignated and amended at 53 FR 2740, Feb. 1,
1988]
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.
[[Page 30]]
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 (1) requires that
the matters be withheld from the public in such a manner as to leave no
discretion on the issue or (2) 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 which 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 which 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,
concerning wells. Any reasonably segregable portion of a record shall be
provided to any person requesting the record after deletion of the
portions which are exempt under this section.
(j) Whenever a request is made which 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.
[44 FR 50287, Aug. 27, 1979, as amended at 52 FR 13679, Apr. 24, 1987]
Sec. 5.72 Executive privilege exemption.
Where application of the executive privilege exemption is desired,
the matter shall be forwarded to the Administrator for consideration. If
the request for information is Congressional, 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.
[[Page 31]]
Subpart F_Subpoenas or Other Legal Demands for Testimony or the
Production or Disclosure of Records or Other Information
Source: 54 FR 11715, Mar. 22, 1989, unless otherwise noted.
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 arising out of traffic accidents, domestic relations, etc.).
(d) The Department of Homeland Security's regulations, 6 CFR 5.41
through 5.49, apply to any subject matter not already covered by this
subpart, including but not limited to demands or requests directed to
current or former FEMA contractors.
[54 FR 11715, Mar. 22, 1989, as amended at 72 FR 43546, Aug. 6, 2007]
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 Administrator of FEMA.
(c) Private litigation refers to any legal proceeding which 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 Administrator listed in Sec. 5.26.
For all other records or testimony, the subpoena should be addressed to
the Chief Counsel, FEMA, 500 C Street SW., Washington, DC 20472
Washington, DC 20472. No other official or employee of FEMA is
authorized to accept service of subpoenas on behalf of the Agency.
[[Page 32]]
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 Chief Counsel.
(b) Whenever an official or employee of FEMA, including any Regional
Administrator, 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 Chief Counsel.
(c) The Chief Counsel, 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 Chief Counsel, 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
Chief Counsel.
(e) Where the release of documents in response to a subpoena duces
tecum is authorized by the Chief Counsel, 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 Chief
Counsel.
Sec. 5.85 Authentication and attestation of copies.
The Administrator, Deputy Administrators, Regional Administrators,
Assistant Administrators, United States Fire Administrator, Federal
Insurance Administrator, Chief Counsel, and their designees, and other
heads of offices having possession of records are authorized in the name
of the Administrator 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 section
5.46 of this part.
[74 FR 15334, Apr. 3, 2009]
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
handled as provided at Sec. 5.8.
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, for the
disclosure of information described in paragraph (a) of this section,
that employee shall immediately notify the Office of Chief Counsel. The
Chief 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 the taking of
such steps as are necessary to quash the subpoena or seek a protective
order.
(c) In the event that an immediate demand for testimony or
disclosure is made in circumstances which would
[[Page 33]]
preclude prior notice to and consultation with the Chief Counsel, the
employee shall respectfully request from the 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 in which the United States is
a party, the attorney in charge of presenting the case for the United
States requests it, the Chief 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 Chief Counsel 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 Chief Counsel 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 Administrator may, in his or her
discretion, review any decision to authorize a waiver of any policy or
procedure prescribed by this subpart.
PART 6_IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents
Subpart A_General
Sec.
6.1 Purpose and scope of part.
6.2 Definitions.
6.3 Collection and use of information (Privacy Act statements).
6.4 Standards of accuracy.
6.5 Rules of conduct.
6.6 Safeguarding systems of records.
6.7 Records of other agencies.
6.8 Subpoena and other legal demands.
6.9 Inconsistent issuances of FEMA and/or its predecessor agencies
superseded.
6.10 Assistance and referrals.
Subpart B_Disclosure of Records
6.20 Conditions of disclosure.
6.21 Procedures for disclosure.
6.22 Accounting of disclosures.
Subpart C_Individual Access to Records
6.30 Form of requests.
6.31 Special requirements for medical records.
6.32 Granting access.
6.33 Denials of access.
6.34 Appeal of denial of access within FEMA.
Subpart D_Requests To Amend Records
6.50 Submission of requests to amend records.
6.51 Review of requests to amend records.
6.52 Approval of requests to amend records.
6.53 Denial of requests to amend records.
6.54 Agreement to alternative amendments.
6.55 Appeal of denial of request to amend a record.
6.56 Statement of disagreement.
6.57 Judicial review.
Subpart E_Report on New Systems and Alterations of Existing Systems
6.70 Reporting requirement.
6.71 Federal Register notice of establishment of new system or
alteration of existing system.
[[Page 34]]
6.72 Effective date of new system of records or alteration of an
existing system of records.
Subpart F_Fees
6.80 Records available at fee.
6.81 Additional copies.
6.82 Waiver of fee.
6.83 Prepayment of fees.
6.84 Form of payment.
6.85 Reproduction fees.
Subpart G_Exempt Systems of Records
6.86 General exemptions.
6.87 Specific exemptions.
Authority: 5 U.S.C. 552a; Reorganization Plan No. 3 of 1978; and
E.O. 12127.
Source: 44 FR 50293, Aug. 27, 1979, unless otherwise noted.
Subpart A_General
Sec. 6.1 Purpose and scope of part.
This part sets forth policies and procedures concerning the
collection, use and dissemination of records maintained by the Federal
Emergency Management Agency (FEMA) which are subject to the provision of
5 U.S.C. 552a, popularly known as the ``Privacy Act of 1974''
(hereinafter referred to as the Act). These policies and procedures
govern only those records as defined in Sec. 6.2. Policies and
procedures governing the disclosure and availability of records in
general are in part 5 of this chapter. This part also covers: (a)
Procedures for notification to individuals of a FEMA system of records
pertaining to them; (b) guidance to individuals in obtaining
information, including inspections of, and disagreement with, the
content of records; (c) accounting of disclosure; (d) special
requirements for medical records; and (e) fees.
Sec. 6.2 Definitions.
For the purpose of this part:
(a) Agency 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
(see 5 U.S.C. 552(e)).
(b) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
(c) Maintain includes maintain, collect, use, and disseminate.
(d) Record means any item, collection, or grouping of information
about an individual that is maintained by an agency, including, but not
limited to those concerning education, financial transactions, medical
history, and criminal or employment history, and that contains the name
or other identifying particular assigned to the individual, such as a
fingerprint, voiceprint, or photograph.
(e) System of records means a group of any records under the control
of an agency from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other
identification assigned to that individual.
(f) Statistical record means a record in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or in part in making any determination about an
identifiable individual, except as provided by 13 U.S.C. 8.
(g) Routine use means, with respect to the disclosure of a record,
the use of that record for a purpose which is compatible with the
purpose for which it was collected.
(h) System manager means the employee of FEMA who is responsible for
the maintenance of a system of records and for the collection, use, and
dissemination of information therein.
(i) Subject individual means the individual named or discussed in a
record of the individual to whom a record otherwise pertains.
(j) Disclosure means a transfer of a record, a copy of a record, or
any or all of the information contained in a record to a recipient other
than the subject individual, or the review of a record by someone other
than the subject individual.
(k) Access means a transfer of a record, a copy of a record, or the
information in a record to the subject individual, or the review of a
record by the subject individual.
(l) Solicitation means a request by an officer or employee of FEMA
that an
[[Page 35]]
individual provide information about himself or herself.
(m) Administrator means the Administrator, FEMA.
(n) Deputy Administrator means the Deputy Administrator, FEMA, or,
in the case of the absence of the Deputy Administrator, or a vacancy in
that office, a person designated by the Administrator to perform the
functions under this regulation of the Deputy Administrator.
(o) Privacy Appeals Officer means the FOIA/Privacy Act Specialist or
his/her designee.
[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980;
51 FR 34604, Sept. 30, 1986]
Sec. 6.3 Collection and use of information (Privacy Act statements).
(a) General. Any information used in whole or in part in making a
determination about an individual's rights, benefits, or privileges
under FEMA programs will be collected directly from the subject
individual to the extent practicable. The system manager also shall
ensure that information collected is used only in conformance with the
provisions of the Act and these regulations.
(b) Solicitation of information. System managers shall ensure that
at the time information is solicited the solicited individual is
informed of the authority for collecting that information, whether
providing the information is mandatory or voluntary, the purpose for
which the information will be used, the routine uses to be made of the
information, and the effects on the individual, if any, of not providing
the information. The Director, Records Management Division, Office of
Management and Regional Administrators shall ensure that forms used to
solicit information are in compliance with the Act and these
regulations.
(c) Solicitation of Social Security numbers. Before an employee of
FEMA can deny to any individual a right, benefit, or privilege provided
by law because such individual refuses to disclose his/her social
security account number, the employee of FEMA shall ensure that either:
(1) The disclosure is required by Federal statute; or
(2) The disclosure of a social security number was required under a
statute or regulation adopted before January 1, 1975, to verify the
identity of an individual, and the social security number will become a
part of a system of records in existence and operating before January 1,
1975.
If solicitation of the social security number is authorized under
paragraph (c) (1) or (2) of this section, the FEMA employee who requests
an individual to disclose the social security account number shall first
inform that individual whether that disclosure is mandatory or
voluntary, by what statutory or other authority the number is solicited,
and the use that will be made of it.
(d) Soliciting information from third parties. An employee of FEMA
shall inform third parties who are requested to provide information
about another individual of the purposes for which the information will
be used.
[44 FR 50293, Aug. 27, 1979, as amended at 47 FR 13149, Mar. 29, 1982;
48 FR 12091, Mar. 23, 1983; 50 FR 40006, Oct. 1, 1985]
Sec. 6.4 Standards of accuracy.
The system manager shall ensure that all records which are used by
FEMA to make determinations about any individual are maintained with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to ensure fairness to the individual.
Sec. 6.5 Rules of conduct.
Employees of FEMA involved in the design, development, operation, or
maintenance of any system of records or in maintaining any record, shall
conduct themselves in accordance with the rules of conduct concerning
the protection of personal information in Sec. 3.25 of this chapter.
Sec. 6.6 Safeguarding systems of records.
(a) Systems managers shall ensure that appropriate administrative,
technical, and physical safeguards are established to ensure the
security and confidentiality of records and to protect against any
anticipated threats or hazards to their security or integrity which
could result in substantial harm,
[[Page 36]]
embarrassment, inconvenience, or unfairness to any individual on whom
information is maintained.
(b) Personnel information contained in both manual and automated
systems of records shall be protected by implementing the following
safeguards:
(1) Official personnel folders, authorized personnel operating or
work folders and other records of personnel actions effected during an
employee's Federal service or affecting the employee's status and
service, including information on experience, education, training,
special qualification, and skills, performance appraisals, and conduct,
shall be stored in a lockable metal filing cabinet when not in use by an
authorized person. A system manager may employ an alternative storage
system providing that it furnished an equivalent degree of physical
security as storage in a lockable metal filing cabinet.
(2) System managers, at their discretion, may designate additional
records of unusual sensitivity which require safeguards similar to those
described in paragraph (a) of this section.
(3) A system manager shall permit access to and use of automated or
manual personnel records only to persons whose official duties require
such access, or to a subject individual or his or her representative as
provided by this part.
Sec. 6.7 Records of other agencies.
If FEMA receives a request for access to records which are the
primary responsibility of another agency, but which are maintained by or
in the temporary possession of FEMA on behalf of that agency, FEMA will
advise the requestor that the request has been forwarded to the
responsible agency. Records in the custody of FEMA which are the primary
responsibility of the Office of Personnel Management are governed by the
rules promulgated by it pursuant to the Privacy Act.
Sec. 6.8 Subpoena and other legal demands.
Access to records in systems of records by subpoena or other legal
process shall be in accordance with the provisions of part 5 of this
chapter.
Sec. 6.9 Inconsistent issuances of FEMA and/or its predecessor
agencies superseded.
Any policies and procedures in any issuances of FEMA or any of its
predecessor agencies which are inconsistent with the policies and
procedures in this part are superseded to the extent of that
inconsistency.
Sec. 6.10 Assistance and referrals.
Requests for assistance and referral to the responsible system
manager or other FEMA employee charged with implementing these
regulations should be made to the Privacy Appeals Officer, Federal
Emergency Management Agency, Washington, DC 20472.
[45 FR 17152, Mar. 18, 1980]
Subpart B_Disclosure of Records
Sec. 6.20 Conditions of disclosure.
No employee of FEMA shall disclose any record to any person or to
another agency without the express written consent of the subject
individual unless the disclosure is:
(a) To officers or employees of FEMA who have a need for the
information in the official performance of their duties;
(b) Required by the provisions of the Freedom of Information Act, 5
U.S.C. 552.
(c) For a routine use as published in the notices in the Federal
Register;
(d) To the Bureau of the Census for use pursuant to title 13, United
States Code;
(e) To a recipient who has provided FEMA with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record subject to the following: The record shall
be transferred in a form that is not individually identifiable. The
written statement should include as a minimum (1) a statement of the
purpose for requesting the records; and (2) certification that the
records will be used only for statistical purposes. These written
statements should be maintained as accounting records. In addition to
deleting personal identifying information from records released for
statistical purposes, the system manager shall ensure that the
[[Page 37]]
identity of the individual cannot reasonably be deduced by combining
various statistical records;
(f) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Administrator of The National Archives and Records Administration or his
designee to determine whether the record has such value;
(g) To another agency or instrumentality of any governmental
jurisdiction within or under the control of the United States for civil
or criminal law enforcement activity, if the activity is authorized by
law, and if the head of the agency or instrumentality or his designated
representative has made a written request to the Administrator
specifying the particular portion desired and the law enforcement
activity for which the record is sought;
(h) To a person showing compelling circumstances affecting the
health and safety of an individual to whom the record pertains. (Upon
such disclosure, a notification must be sent to the last known address
of the subject individual.)
(i) To either House of Congress or to a subcommittee or committee
(joint or of either House, to the extent that the subject matter falls
within their jurisdiction;
(j) To the Comptroller General or any duly authorized
representatives of the Comptroller General in the course of the
performance of the duties of the Government Accountability Office; or
(k) Pursuant to the order of a court of competent jurisdiction.
(l) To consumer reporting agencies as defined in the Fair Credit
Reporting Act (35 U.S.C. 1681a(f) or the Debt Collection Act of 1982 (31
U.S.C. 3711(d)(4)).
[44 FR 50293, Aug. 27, 1979, as amended at 48 FR 44543, Sept. 29, 1983;
50 FR 40006, Oct. 1, 1985]
Sec. 6.21 Procedures for disclosure.
(a) Upon receipt of a request for disclosure, the system manager
shall verify the right of the requestor to obtain disclosure pursuant to
Sec. 6.20. Upon that verification and subject to other requirements of
this part, the system manager shall make the requested records
available.
(b) If the system manager determines that the disclosure is not
permitted under the provisions of Sec. 6.20 or other provisions of this
part, the system manager shall deny the request in writing and shall
inform the requestor of the right to submit a request for review and
final determination to the Administrator or designee.
Sec. 6.22 Accounting of disclosures.
(a) Except for disclosures made pursuant to Sec. 6.20 (a) and (b),
an accurate accounting of each disclosure shall be made and retained for
5 years after the disclosure or for the life of the record, whichever is
longer. The accounting shall include the date, nature, and purpose of
each disclosure, and the name and address of the person or agency to
whom the disclosure is made;
(b) The system manager also shall maintain in conjunction with the
accounting of disclosures;
(1) A full statement of the justification for the disclosure.
(2) All documentation surrounding disclosure of a record for
statistical or law enforcement purposes; and
(3) Evidence of written consent to a disclosure given by the subject
individual.
(c) Except for the accounting of disclosures made to agencies or
instrumentalities in law enforcement activities in accordance with
Sec. 6.20 (g) or of disclosures made from exempt systems the accounting
of disclosures shall be made available to the individual upon request.
Procedures for requesting access to the accounting are in subpart C of
this part.
Subpart C_Individual Access to Records
Sec. 6.30 Form of requests.
(a) An individual who seeks access to his or her record or to any
information pertaining to the individual which is contained in a system
of records should notify the system manager at the address indicated in
the Federal Register notice describing the pertinent system. The notice
should bear the legend ``Privacy Act Request'' both on the request
letter and on the envelope. It
[[Page 38]]
will help in the processing of a request if the request letter contains
the complete name and identifying number of the system as published in
the Federal Register; the full name and address of the subject
individual; a brief description of the nature, time, place, and
circumstances of the individual's association with FEMA; and any other
information which the individual believes would help the system manager
to determine whether the information about the individual is included in
the system of records. The system manager shall answer or acknowledge
the request within 10 workdays of its receipt by FEMA.
(b) The system manager, at his discretion, may accept oral requests
for access subject to verification of identity.
Sec. 6.31 Special requirements for medical records.
(a) A system manager who receives a request from an individual for
access to those official medical records which belong to the U.S. Office
of Personnel Management and are described in Chapter 339, Federal
Personnel Manual (medical records about entrance qualifications or
fitness for duty, or medical records which are otherwise filed in the
Official Personnel Folder), shall refer the pertinent system of records
to a Federal Medical Officer for review and determination in accordance
with this section. If no Federal Medical Officer is available to make
the determination required by this section, the system manager shall
refer the request and the medical reports concerned to the Office of
Personnel Management for determination.
(b) If, in the opinion of a Federal Medical Officer, medical records
requested by the subject individual indicate a condition about which a
prudent physician would hesitate to inform a person suffering from such
a condition of its exact nature and probable outcome, the system manager
shall not release the medical information to the subject individual nor
to any person other than a physician designated in writing by the
subject individual, or the guardian or conservator of the individual.
(c) If, in the opinion of a Federal Medical Officer, the medical
information does not indicate the presence of any condition which would
cause a prudent physician to hesitate to inform a person suffering from
such a condition of its exact nature and probable outcome, the system
manager shall release it to the subject individual or to any person,
firm, or organization which the individual authorizes in writing to
receive it.
Sec. 6.32 Granting access.
(a) Upon receipt of a request for access to non-exempt records, the
system manager shall make these records available to the subject
individual or shall acknowledge the request within 10 workdays of its
receipt by FEMA. The acknowledgment shall indicate when the system
manager will make the records available.
(b) If the system manager anticipates more than a 10 day delay in
making a record available, he or she also shall include in the
acknowledgment specific reasons for the delay.
(c) If a subject individual's request for access does not contain
sufficient information to permit the system manager to locate the
records, the system manager shall request additional information from
the individual and shall have 10 workdays following receipt of the
additional information in which to make the records available or to
acknowledge receipt of the request and indicate when the records will be
available.
(d) Records will be available for authorized access during normal
business hours at the offices where the records are located. A requestor
should be prepared to identify himself or herself by signature; i.e., to
note by signature the date of access and/or produce other identification
verifying the signature.
(e) Upon request, a system manager shall permit an individual to
examine the original of a non-exempt record, shall provide the
individual with a copy of the record, or both. Fees shall be charged in
accordance with subpart F.
(f) An individual may request to pick up a record in person or to
receive it by mail, directed to the name and address
[[Page 39]]
provided by the individual in the request. A system manager shall not
make a record available to a third party for delivery to the subject
individual except for medical records as outlined in Sec. 6.31.
(g) An individual who selects another person to review, or to
accompany the individual in reviewing or obtaining a copy of the record
must, prior to the disclosure, sign a statement authorizing the
disclosure of the record. The system manager shall maintain this
statement with the record.
(h) The procedure for access to an accounting of disclosure is
identical to the procedure for access to a record as set forth in this
section.
Sec. 6.33 Denials of access.
(a) A system manager may deny an individual access to that
individual's record only upon the grounds that FEMA has published the
rules in the Federal Register exempting the pertinent system of records
from the access requirement. These exempt systems of records are
described in subpart G of this part.
(b) Upon receipt of a request for access to a record which the
system manager believes is contained within an exempt system of records
he or she shall forward the request to the appropriate official listed
below or to his or her delegate through normal supervisory channels.
(1) Deputy Administrators.
(2) [Reserved]
(3) Federal Insurance Administrator.
(4) Assistant Administrators.
(5) United States Fire Administrator.
(6) Chief of Staff.
(7) Office Directors.
(8) Chief Counsel.
(9) [Reserved]
(10) Chief Financial Officer.
(11) Regional Administrators.
(c) In the event that the system manager serves in one of the
positions listed in paragraph (b) of this section, he or she shall
retain the responsibility for denying or granting the request.
(d) The appropriate official listed in paragraph (b) of this section
shall, in consultation with the Office of Chief Counsel and such other
officials as deemed appropriate, determine if the request record is
contained within an exempt system of records and:
(1) If the record is not contained within an exempt system of
records, the above official shall notify the system manager to grant the
request in accordance with Sec. 6.32, or
(2) If the record is contained within an exempt system said official
shall;
(i) Notify the requestor that the request is denied, including a
statement justifying the denial and advising the requestor of a right to
judicial review of that decision as provided in Sec. 6.57, or
(ii) Notify the system manager to make record available to the
requestor in accordance with Sec. 6.31, notwithstanding the record's
inclusion within an exempt system.
(e) The appropriate official listed in paragraph (b) of this section
shall provide the Privacy Appeals Office with a copy of any denial of a
requested access.
[44 FR 50293, Aug. 27, 1979, as amended at 48 FR 44543, Sept. 29, 1983;
50 FR 40006, Oct. 1, 1985; 51 FR 34604, Sept. 30, 1986; 74 FR 15334,
Apr. 3, 2009]
Sec. 6.34 Appeal of denial of access within FEMA.
A requestor denied access in whole or in part, to records pertaining
to that individual, exclusive of those records for which the system
manager is the Administrator, may file an administrative appeal of that
denial. Appeals of denied access will be processed in the same manner as
processing for appeals from a denial of a request to amend a record set
out in Sec. 6.55, regardless whether the denial being appealed is made
at headquarters or by a regional official.
Subpart D_Requests To Amend Records
Sec. 6.50 Submission of requests to amend records.
An individual who desires to amend any record containing personal
information about the individual should direct a written request to the
system manager specified in the pertinent Federal Register notice
concerning FEMA's systems of records. A current FEMA employee who
desires to amend
[[Page 40]]
personnel records should submit a written request to the Director, Human
Capital Division, Washington, DC 20472. Each request should include
evidence of and justification for the need to amend the pertinent
record. Each request should bear the legend ``Privacy Act--Request to
Amend Record'' prominently marked on both the face of the request letter
and the envelope.
Sec. 6.51 Review of requests to amend records.
(a) The system manager shall acknowledge the receipt of a request to
amend a record within 10 workdays. If possible, the acknowledgment shall
include the system manager's determination either to amend the record or
to deny the request to amend as provided in Sec. 6.53.
(b) When reviewing a record in response to a request to amend, the
system manager shall assess the accuracy, relevance, timeliness, and
completeness of the existing record in light of the proposed amendment
and shall determine whether the request for the amendment is justified.
With respect to a request to delete information, the system manager also
shall review the request and the existing record to determine whether
the information is relevant and necessary to accomplish an agency
purpose required to be accomplished by statute or Executive Order.
Sec. 6.52 Approval of requests to amend records.
If the system manager determines that amendment of a record is
proper in accordance with the request to amend, he or she promptly shall
make the necessary corrections to the record and shall send a copy of
the corrected record to the individual. Where an accounting of
disclosure has been maintained, the system manager shall advise all
previous recipients of the record of the fact that a correction has been
made and the substance of the correction. Where practicable, the system
manager shall advise the Privacy Appeals Officer that a request to amend
has been approved.
Sec. 6.53 Denial of requests to amend records.
(a) If the system manager determines that an amendment of a record
is improper or that the record should be amended in a manner other than
that requested by an individual, he shall refer the request to amend and
his determinations and recommendations to the appropriate official
listed in Sec. 6.33(b) through normal supervisory channels.
(b) If the official listed in Sec. 6.33, after reviewing the request
to amend a record, determines to amend the record in accordance with the
request, said official promptly shall return the request to the system
manager with instructions to make the requested amendments in accordance
with Sec. 6.52.
(c) If the appropriate official listed in Sec. 6.33, after reviewing
the request to amend a record, determines not to amend the record in
accordance with the request, the requestor shall be promptly advised in
writing of the determination. The refusal letter (1) shall state the
reasons for the denial of the request to amend; (2) shall include
proposed alternative amendments, if appropriate; (3) shall state the
requestor's right to appeal the denial of the request to amend; and (4)
shall state the procedures for appealing and the name and title of the
official to whom the appeal is to be addressed.
(d) The appropriate official listed in Sec. 6.33 shall furnish the
Privacy Appeals Officer a copy of each initial denial of a request to
amend a record.
[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]
Sec. 6.54 Agreement to alternative amendments.
If the denial of a request to amend a record includes proposed
alternative amendments, and if the requestor agrees to accept them, he
or she must notify the official who signed the denial. That official
immediately shall instruct the system manager to make the necessary
amendments in accordance with Sec. 6.52.
Sec. 6.55 Appeal of denial of request to amend a record.
(a) A requestor who disagrees with a denial of a request to amend a
record
[[Page 41]]
may file an administrative appeal of that denial. The requestor should
address the appeal to the FEMA Privacy Appeals Officer, Washington, DC
20472. If the requestor is an employee of FEMA and the denial to amend
involves a record maintained in the employee's Official Personnel Folder
covered by an Office of Personnel Management Government-wide system
notice, the appeal should be addressed to the Assistant Director,
Information Systems, Agency Compliance and Evaluation Group, Office of
Personnel Management, Washington, DC 20415.
(b) Each appeal to the Privacy Act Appeals Officer shall be in
writing and must be received by FEMA no later than 30 calendar days from
the requestor's receipt of a denial of a request to amend a record. The
appeal should bear the legend ``Privacy Act--Appeal,'' both on the face
of the letter and the envelope.
(c) Upon receipt of an appeal, the Privacy Act Appeals Officer shall
consult with the system manager, the official who made the denial, the
Chief Counsel or a member of that office, and such other officials as
may be appropriate. If the Privacy Act Appeals Officer in consultation
with these officials, determines that the record should be amended, as
requested, the system manager shall be instructed immediately to amend
the record in accordance with Sec. 6.52 and shall notify the requestor
of that action.
(d) If the Privacy Act Appeals Officer, in consultation with the
officials specified in paragraph (c) of this section, determines that
the appeal should be rejected, the Privacy Act Appeals Officer shall
submit the file on the request and appeal, including findings and
recommendations, to the Deputy Administrator for a final administrative
determination.
(e) If the Deputy Administrator determines that the record should be
amended as requested, he or she immediately shall instruct the system
manager in writing to amend the record in accordance with Sec. 6.52. The
Deputy Administrator shall send a copy of those instructions to the
Privacy Act Appeals Officer, who shall notify the requester of that
action.
(f) If the Deputy Administrator determines to reject the appeal, the
requestor shall immediately be notified in writing of that
determination. This action shall constitute the final administrative
determination on the request to amend the record and shall include:
(1) The reasons for the rejection of the appeal.
(2) Proposed alternative amendments, if appropriate, which the
requestor subsequently may accept in accordance with Sec. 6.54.
(3) Notice of the requestor's right to file a Statement of
Disagreement for distribution in accordance with Sec. 6.56.
(4) Notice of the requestor's right to seek judicial review of the
final administrative determination, as provided in Sec. 6.57.
(g) The final agency determination must be made no later than 30
workdays from the date on which the appeal is received by the Privacy
Act Appeals Officer.
(h) In extraordinary circumstances, the Administrator may extend
this time limit by notifying the requestor in writing before the
expiration of the 30 workdays. The Administrator's notification will
include a justification for the extension.
[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]
Sec. 6.56 Statement of disagreement.
Upon receipt of a final administrative determination denying a
request to amend a record, the requestor may file a Statement of
Disagreement with the appropriate system manager. The Statement of
Disagreement should include an explanation of why the requestor believes
the record to be inaccurate, irrelevant, untimely, or incomplete. The
system manager shall maintain the Statement of Disagreement in
conjunction with the pertinent record, and shall include a copy of the
Statement of Disagreement in any disclosure of the pertinent record. The
system manager shall provide a copy of the Statement of Disagreement to
any person or agency to whom the record has been disclosed only if the
disclosure was subject to the accounting requirements of Sec. 6.22.
[[Page 42]]
Sec. 6.57 Judicial review.
Within 2 years of receipt of a final administrative determination as
provided in Sec. 6.34 or Sec. 6.55, a requestor may seek judicial review
of that determination. A civil action must be filed in the Federal
District Court in which the requestor resides or has his or her
principal place of business or in which the agency records are situated,
or in the District of Columbia.
Subpart E_Report on New Systems and Alterations of Existing Systems
Sec. 6.70 Reporting requirement.
(a) No later than 90 calendar days prior to the establishment of a
new system of records, the prospective system manager shall notify the
Privacy Appeals Officer of the proposed new system. The prospective
system manager shall include with the notification a completed FEMA Form
11-2, System of Records Covered by the Privacy Act of 1974, and a
justification for each system of records proposed to be established. If
the Privacy Appeals Officer determines that the establishment of the
proposed system is in the best interest of the Government, then no later
than 60 calendar days prior to the establishment of that system of
records, a report of the proposal shall be submitted by the
Administrator or a designee thereof, to the President of the Senate, the
Speaker of the House of Representatives, and the Administrator, Office
of Information and Regulatory Affairs, Office of Management and Budget
for their evaluation of the probable or potential effect of that
proposal on the privacy and other personal or property rights of
individuals.
(b) No later than 90 calendar days prior to the alteration of a
system of records, the system manager responsible for the maintenance of
that system of records shall notify the Privacy Appeals Officer of the
proposed alteration. The system manager shall include with the
notification a completed FEMA Form 11-2. System of Records Covered by
the Privacy Act of 1974, and a justification for each system of records
he proposes to alter. If it is determined that the proposed alteration
is in the best interest of the Government, then, the Administrator, or a
designee thereof, shall submit, no later than 60 calendar days prior to
the establishment of that alteration, a report of the proposal to the
President of the Senate, the Speaker of the House of Representatives,
and the Administrator, Office of Information and Regulatory Affairs,
Office of Management and Budget for their evaluation of the probable or
potential effect of that proposal on the privacy and other personal or
property rights of individuals.
(c) The reports required by this regulation are exempt from reports
control.
(d) The Administrator, Office of Information and Regulatory Affairs,
Office of Management and Budget may waive the time requirements set out
in this section upon a finding that a delay in the establishing or
amending the system would not be in the public interest and showing how
the public interest would be adversely affected if the waiver were not
granted and otherwise complying with OMB Circular A-130.
[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980;
51 FR 34604, Sept. 30, 1986]
Sec. 6.71 Federal Register notice of establishment of new system
or alteration of existing system.
Notice of the proposed establishment or alteration of a system of
records shall be published in the Federal Register, in accordance with
FEMA procedures when:
(a) Notice is received that the Senate, the House of
Representatives, and the Office of Management and Budget do not object
to the establishment of a new system or records or to the alteration of
an existing system of records, or
(b) No fewer than 30 calendar days elapse from the date of
submission of the proposal to the Senate, the House of Representatives,
and the Office of Management and Budget without receipt of an objection
to the proposal. The notice shall include all of the information
required to be provided in FEMA Form 11-2, System of Records Covered by
the Privacy Act of 1974, and such other information as the Administrator
deems necessary.
[[Page 43]]
Sec. 6.72 Effective date of new system of records or alteration of
an existing system of records.
Systems of records proposed to be established or altered in
accordance with the provisions of this subpart shall be effective no
sooner than 30 calendar days from the publication of the notice required
by Sec. 6.71.
Subpart F_Fees
Sec. 6.80 Records available at fee.
The system manager shall provide a copy of a record to a requestor
at a fee prescribed in Sec. 6.85 unless the fee is waived under
Sec. 6.82.
[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]
Sec. 6.81 Additional copies.
A reasonable number of additional copies shall be provided for the
applicable fee to a requestor who indicates that he has no access to
commercial reproduction services.
Sec. 6.82 Waiver of fee.
The system manager shall make one copy of a record, up to 300 pages,
available without charge to a requestor who is an employee of FEMA. The
system manager may waive the fee requirement for any other requestor if
the cost of collecting the fee is an unduly large part of, or greater
than, the fee, or when furnishing the record without charge conforms to
generally established business custom or is in the public interest.
[44 FR 50287, Aug. 27, 1979, as amended at 52 FR 13679, Apr. 24, 1987]
Sec. 6.83 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 charged 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. 6.85(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 Sec. 5.44 (a) or (b), the administrative
time limits prescribed in subsection (a)(6) of the FOIA (i.e., 10
working days from the receipt of initial requests and 20 working days
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 Sec. 5.44 (a) or (b).
[52 FR 13679, Apr. 24, 1987]
Sec. 6.84 Form of payment.
Payment shall be by check or money order payable to The Federal
Emergency Management Agency and shall be addressed to the system
manager.
Sec. 6.85 Reproduction fees.
(a) 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 $.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, 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.
(3) 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
[[Page 44]]
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.
(b) Interest may be charge 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 section 3717 of title
31 U.S.C.
[52 FR 13679, Apr. 24, 1987]
Subpart G_Exempt Systems of Records
Sec. 6.86 General exemptions.
(a) Whenever the Administrator, Federal Emergency Management Agency,
determines it to be necessary and proper, with respect to any system of
records maintained by the Federal Emergency Management Agency, to
exercise the right to promulgate rules to exempt such systems in
accordance with the provisions of 5 U.S.C. 552a (j) and (k), each
specific exemption, including the parts of each system to be exempted,
the provisions of the Act from which they are exempted, and the
justification for each exemption shall be published in the Federal
Register as part of FEMA's Notice of Systems of Records.
(b) Exempt under 5 U.S.C. 552a(j)(2) from the requirements of 5
U.S.C. 552a(c) (3) and (4), (d), (e) (1), (2), (3), (e)(4) (G), (H), and
(I), (e) (5) and (8) (f) and (g) of the Privacy Act.
(1) Exempt systems. The following systems of records, which contain
information of the type described in 5 U.S.C. 552(j)(2), shall be exempt
from the provisions of 5 U.S.C. 552a listed in paragraph (b) of this
section.
General Investigative Files (FEMA/IG-2)--Limited Access
(2) Reasons for exemptions. (i) 5 U.S.C. 552a (e)(4)(G) and (f)(1)
enable individuals to be notified whether a system of records contains
records pertaining to them. The Federal Emergency Management Agency
believes that application of these provisions to the above-listed system
of records would give individuals an opportunity to learn whether they
are of record either as suspects or as subjects of a criminal
investigation; this would compromise the ability of the Federal
Emergency Management Agency to complete investigations and identify or
detect violators of laws administered by the Federal Emergency
Management Agency or other Federal agencies. Individuals would be able
(A) to take steps to avoid detection, (B) to inform co-conspirators of
the fact that an investigation is being conducted, (C) to learn the
nature of the investigation to which they are being subjected, (D) to
learn the type of surveillance being utilized, (E) to learn whether they
are only suspects or identified law violators, (F) to continue to resume
their illegal conduct without fear of detection upon learning that they
are not in a particular system of records, and (G) to destroy evidence
needed to prove the violation.
(ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable
individuals to gain access to records pertaining to them. The Federal
Emergency Management Agency believes that application of these
provisions to the above-listed system of records would compromise its
ability to complete or continue criminal investigations and to detect or
identify violators of laws administered by the Federal Emergency
Management Agency or other Federal agencies. Permitting access to
records contained in the above-listed system of records would provide
individuals with significant information concerning the nature of the
investigation, and this could enable them to avoid detection or
apprehension in the following ways:
(A) By discovering the collection of facts which would form the
basis for their arrest, (B) by enabling them to destroy evidence of
criminal conduct which would form the basis for their arrest, and (C) by
learning that the criminal investigators had reason to believe that a
crime was about to be committed, they could delay the commission of the
crime or change the scene of the crime to a location which might not be
under surveillance. Granting access to ongoing or closed investigative
files would also reveal investigative techniques and procedures, the
knowledge of which could enable individuals planning criminal activity
[[Page 45]]
to structure their future operations in such a way as to avoid detection
or apprehension, thereby neutralizing law enforcement officers'
established investigative tools and procedures. Further, granting access
to investigative files and records could disclose the identity of
confidential sources and other informers and the nature of the
information which they supplied, thereby endangering the life or
physical safety of those sources of information by exposing them to
possible reprisals for having provided information relating to the
criminal activities of those individuals who are the subjects of the
investigative files and records; confidential sources and other
informers might refuse to provide criminal investigators with valuable
information if they could not be secure in the knowledge that their
identities would not be revealed through disclosure of either their
names or the nature of the information they supplied, and this would
seriously impair the ability of the Federal Emergency Management Agency
to carry out its mandate to enforce criminal and related laws.
Additionally, providing access to records contained in the above-listed
system of records could reveal the identities of undercover law
enforcement personnel who compiled information regarding individual's
criminal activities, thereby endangering the life or physical safety of
those undercover personnel or their families by exposing them to
possible reprisals.
(iii) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which
are dependent upon access having been granted to records pursuant to the
provisions cited in paragraph (b)(2)(ii) of this section, enable
individuals to contest (seek amendment to) the content of records
contained in a system of records and require an agency to note an
amended record and to provide a copy of an individual's statement (of
disagreement with the agency's refusal to amend a record) to persons or
other agencies to whom the record has been disclosed. The Federal
Emergency Management Agency believes that the reasons set forth in
paragraph (b)(2)(ii) of this section are equally applicable to this
paragraph and, accordingly, those reasons are hereby incorporated herein
by reference.
(iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request; such accountings must state the date, nature and purpose
of each disclosure of a record and the name and address of the
recipient. The Federal Emergency Management Agency believes that
application of this provision to the above-listed system of records
would impair the ability of other law enforcement agencies to make
effective use of information provided by the Federal Emergency
Management Agency in connection with the investigation, detection and
apprehension of violators of the criminal laws enforced by those other
law enforcement agencies. Making accountings of disclosure available to
violators or possible violators would alert those individuals to the
fact that another agency is conducting an investigation into their
criminal activities, and this could reveal the geographic location of
the other agency's investigation, the nature and purpose of that
investigation, and the dates on which that investigation was active.
Violators possessing such knowledge would thereby be able to take
appropriate measures to avoid detection or apprehension by altering
their operations, by transferring their criminal activities to other
geographic areas or by destroying or concealing evidence which would
form the basis for their arrest. In addition, providing violators with
accountings of disclosure would alert those individuals to the fact that
the Federal Emergency Management Agency has information regarding their
criminal activities and could inform those individuals of the general
nature of that information; this, in turn, would afford those
individuals a better opportunity to take appropriate steps to avoid
detection or apprehension for violations of criminal and related laws.
(v) 5 U.S.C. 552a(c)(4) requires that an agency inform any person or
other agency about any correction or notation of dispute made by the
agency in accordance with 5 U.S.C. 552a(d) of any record that has been
disclosed to the person or agency if an accounting of the disclosure was
made. Since this
[[Page 46]]
provision is dependent on an individual's having been provided an
opportunity to contest (seek amendment to) records pertaining to him/
her, and since the above-listed system of records is proposed to be
exempt from those provisions of 5 U.S.C. 552a relating to amendments of
records as indicated in paragraph (b)(2)(iii) of this section, the
Federal Emergency Management Agency believes that this provision should
not be applicable to the above system of records.
(vi) 5 U.S.C. 552a(e)(4)(I) requires that an agency publish a public
notice listing the categories of sources for information contained in a
system of records. The categories of sources of this system of records
have been published in the Federal Register in broad generic terms in
the belief that this is all that subsection (e)(4)(I) of the Act
requires. In the event, however, that this subsection should be
interpreted to require more detail as to the identity of sources of the
records in this system, exemption from this provision is necessary in
order to protect the confidentiality of the sources of criminal and
other law enforcement information. Such exemption is further necessary
to protect the privacy and physical safety of witnesses and informants.
(vii) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term maintain as defined
in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.'' At the
time that information is collected by the Federal Emergency Management
Agency, there is often insufficient time to determine whether the
information is relevant and necessary to accomplish a purpose of the
Federal Emergency Management Agency; in many cases information collected
may not be immediately susceptible to a determination of whether the
information is relevant and necessary, particularly in the early stages
of an investigation, and in many cases, information which initially
appears to be irrelevant or unnecessary may, upon further evaluation or
upon continuation of the investigation, prove to have particular
relevance to an enforcement program of the Federal Emergency Management
Agency. Further, not all violations of law discovered during a criminal
investigation fall within the investigative jurisdiction of the Federal
Emergency Management Agency; in order to promote effective law
enforcement, it often becomes necessary and desirable to disseminate
information pertaining to such violations to other law enforcement
agencies which have jurisdiction over the offense to which the
information relates. The Federal Emergency Management Agency should not
be placed in a position of having to ignore information relating to
violations of law not within its jurisdiction when that information
comes to the attention of the Federal Emergency Management Agency
through the conduct of a lawful FEMA investigation. The Federal
Emergency Management Agency, therefore, believes that it is appropriate
to exempt the above-listed system of records from the provisions of 5
U.S.C. 552a(e)(1).
(viii) 5 U.S.C. 552a(e)(2) requires that an agency collect
information to the greatest extent practicable directly from the subject
individual when the information may result in adverse determinations
about an individual's rights, benefits, and privileges under Federal
programs. The Federal Emergency Management Agency believes that
application of this provision to the above-listed system of records
would impair the ability of the Federal Emergency Management Agency to
conduct investigations and to identify or detect violators of criminal
or related laws for the following reasons:
(A) Most information collected about an individual under criminal
investigations is obtained from third parties such as witnesses and
informers, and it is usually not feasible to rely upon the subject of
the investigation as a source for information regarding his/her criminal
activities, (B) an attempt to obtain information from the subject of a
criminal investigation will often alert that individual to the existence
of an investigation, thereby affording the individual an opportunity to
attempt to conceal his/her criminal activities
[[Page 47]]
so as to avoid apprehension, (C) in certain instances, the subject of a
criminal investigation is not required to supply information to criminal
investigators as a matter of legal duty, and (D) during criminal
investigations it is often a matter of sound investigative procedures to
obtain information from a variety of sources in order to verify
information already obtained.
(ix) 5 U.S.C. 552a(e)(3) requires that an agency inform each
individual whom it asks to supply information, either on the form which
the agency uses to collect the information or on a separate form which
can be retained by the individual, with the following information: The
authority which authorizes the solicitation of the information and
whether disclosure of such information is mandatory or voluntary; the
principal purposes for which the information is intended to be used; the
routine uses which may be made of the information; and the effects on
the individual of not providing all or part of the requested
information. The Federal Emergency Management Agency believes that the
above-listed system of records should be exempted from this provision in
order to avoid adverse effects on its ability to identify or detect
violators of criminal or related laws. In many cases, information is
obtained by confidential sources, other informers or undercover law
enforcement officers under circumstances where it is necessary that the
true purpose of their actions be kept secret so as to avoid alerting the
subject of the investigation or his/her associates that a criminal
investigation is in process. Further, if it became known that the
undercover officer was assisting in a criminal investigation, that
officer's life or physical safety could be endangered through reprisal,
and, under such circumstances it may not be possible to continue to
utilize that officer in the investigation. In many cases, individuals,
for personal reasons, would feel inhibited in talking to a person
representing a criminal law enforcement agency but would be willing to
talk to a confidential source or undercover officer who they believe is
not involved in law enforcement activities. In addition, providing a
source of information with written evidence that he was a source, as
required by this provision, could increase the likelihood that the
source of information would be the subject of retaliatory action by the
subject of the investigation. Further, application of this provision
could result in an unwarranted invasion of the personal privacy of the
subject of the criminal investigation, particularly where further
investigation would result in a finding that the subject was not
involved in any criminal activity.
(x) 5 U.S.C. 552a(e)(5) requires that an agency maintain all records
used by the agency in making any determination about any individual with
such accuracy, relevance, timeliness and completeness as is reasonably
necessary to assure fairness to the individual in the determination.
Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include ``collect''
and ``disseminate,'' application of this provision to the above-listed
system of records would hinder the initial collection of any information
which could not, at the moment of collection, be determined to be
accurate, relevant, timely and complete. Similarly, application of this
provision would seriously restrict the necessary flow of information
from the Federal Emergency Management Agency to other law enforcement
agencies when a FEMA investigation revealed information pertaining to a
violation of law which was under investigative jurisdiction of another
agency. In collecting information during the course of a criminal
investigation, it is not possible or feasible to determine accuracy,
relevance, timeliness or completeness prior to collection of the
information; in disseminating information to other law enforcement
agencies it is often not possible to determine accuracy, relevance,
timeliness or completeness prior to dissemination because the
disseminating agency may not have the expertise with which to make such
determinations. Further, information which may initially appear to be
inaccurate, irrelevant, untimely or incomplete may, when gathered,
grouped, and evaluated with other available information, become more
pertinent as an investigation progresses. In addition, application of
this provision could seriously impede criminal investigators and
intelligence analysts in the exercise of
[[Page 48]]
their judgment in reporting on results obtained during criminal
investigations. The Federal Emergency Management Agency believes that it
is appropriate to exempt the above-listed system of records from the
provisions of 5 U.S.C. 552a(e)(5).
(xi) 5 U.S.C. 552a(e)(8) requires that an agency make reasonable
effort to serve notice on an individual when any record on the
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. The Federal
Emergency Management Agency believes that the above-listed system of
records should be exempt from this provision in order to avoid revealing
investigative techniques and procedures outlined in those records and in
order to prevent revelation of the existence on an on-going
investigation where there is a need to keep the existence of the
investigation secret.
(xii) 5 U.S.C. 552a(g) provides civil remedies to an individual for
an agency's refusal to amend a record or to make a review of a request
for amendment; for an agency's refusal to grant access to a record; for
an agency's failure to maintain accurate, relevant, timely and complete
records which are used to make a determination which is adverse to the
individual; and for an agency's failure to comply with any other
provision of 5 U.S.C. 552a in such a way as to have an adverse effect on
an individual. The Federal Emergency Management Agency believes that the
above-listed system of records should be exempted from this provision to
the extent that the civil remedies provided therein may relate to
provisions of 5 U.S.C. 552a from which the above-listed system of
records is proposed to be exempt. Since the provisions of 5 U.S.C. 552a
enumerated in paragraphs (b)(2)(i) through (xi) of this section are
proposed to be inapplicable to the above-listed systems of records for
the reasons stated therein, there should be no corresponding civil
remedies for failure to comply with the requirements of those provisions
to which the exemption is proposed to apply. Further, the Federal
Emergency Management Agency believes that application of this provision
to the above-listed system of records would adversely affect its ability
to conduct criminal investigations by exposing to civil court action
every stage of the criminal investigative process in which information
is compiled or used in order to identify, detect, or otherwise
investigate persons suspected or known to be engaged in criminal
conduct.
(xiii) Individuals may not have access to another agency's records,
which are contained in files maintained by the Federal Emergency
Management Agency, when that other agency's regulations provide that
such records are subject to general exemption under 5 U.S.C. 552a(j). If
such exempt records are within a request for access, FEMA will advise
the individual of their existence and of the name and address of the
source agency. For any further information concerning the record and the
exemption, the individual must contact that source agency.
[45 FR 64580, Sept. 30, 1980]
Sec. 6.87 Specific exemptions.
(a) Exempt under 5 U.S.C. 552a(k)(1). The Administrator, Federal
Emergency Management Agency has determined that certain systems of
records may be exempt from the requirements of (c)(3) and (d) pursuant
to 5 U.S.C. 552a(k)(1) to the extent that the system contains any
information properly classified under Executive Order 12356 or any
subsequent Executive order and which are required to be kept secret in
the interest of national defense or foreign policy. To the extent that
this occurs, such records in the following systems would be exempt:
Claims (litigation) (FEMA/GC-1)--Limited Access
FEMA Enforcement (Compliance) (FEMA/GC-2)--Limited Access
General Investigative Files (FEMA/IG-1)--Limited Access
Security Management Information System (FEMA/SEC-1)--Limited Access
(b) Exempt under 5 U.S.C. 552a(k)(2) from the requirements of 5
U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f). The
Federal Emergency Management Agency will not deny individuals access to
information which has been used to deny them a right, privilege, or
benefit to which they would otherwise be entitled.
[[Page 49]]
(1) Exempt systems. The following systems of records, which contain
information of the type described in 5 U.S.C. 552a(k)(2), shall be
exempt from the provisions of 5 U.S.C. 552a(k)(2) listed in paragraph
(b) of this section.
Claims (litigation) (FEMA/GC-1)--Limited Access
FEMA Enforcement (Compliance) (FEMA/GC-2)--Limited Access
General Investigative Files (FEMA/IG-1)--Limited Access
Equal Employment Opportunity Complaints of Discrimination Files (FEMA/
PER-2)--Limited Access
(2) Reasons for exemptions. (i) 5 U.S.C. 552a (e)(4)(G) and (f)(1)
enable individuals to be notified whether a system of records contains
records pertaining to them. The Federal Emergency Management Agency
believes that application of these provisions to the above-listed
systems of records would impair the ability of FEMA to successfully
complete investigations and inquiries of suspected violators of civil
and criminal laws and regulations under its jurisdiction. In many cases
investigations and inquiries into violations of civil and criminal laws
and regulations involve complex and continuing patterns of behavior.
Individuals, if informed, that they have been identified as suspected
violators of civil or criminal laws and regulations, would have an
opportunity to take measures to prevent detection of illegal action so
as to avoid prosecution or the imposition of civil sanctions. They would
also be able to learn the nature and location of the investigation or
inquiry, the type of surveillance being utilized, and they would be able
to transmit this knowledge to co-conspirators. Finally, violators might
be given the opportunity to destroy evidence needed to prove the
violation under investigation or inquiry.
(ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable
individuals to gain access to records pertaining to them. The Federal
Emergency Management Agency believes that application of these
provisions to the above-listed systems of records would impair its
ability to complete or continue civil or criminal investigations and
inquiries and to detect violators of civil or criminal laws. Permitting
access to records contained in the above-listed systems of records would
provide violators with significant information concerning the nature of
the civil or criminal investigation or inquiry. Knowledge of the facts
developed during an investigation or inquiry would enable violators of
criminal and civil laws and regulations to learn the extent to which the
investigation or inquiry has progressed, and this could provide them
with an opportunity to destroy evidence that would form the basis for
prosecution or the imposition of civil sanctions. In addition, knowledge
gained through access to investigatory material could alert a violator
to the need to temporarily postpone commission of the violation or to
change the intended point where the violation is to be committed so as
to avoid detection or apprehension. Further, access to investigatory
material would disclose investigative techniques and procedures which,
if known, could enable violators to structure their future operations in
such a way as to avoid detection or apprehension, thereby neutralizing
investigators' established and effective investigative tools and
procedures. In addition, investigatory material may contain the identity
of a confidential source of information or other informer who would not
want his/her identity to be disclosed for reasons of personal privacy or
for fear of reprisal at the hands of the individual about whom he/she
supplied information. In some cases mere disclosure of the information
provided by an informer would reveal the identity of the informer either
through the process of elimination or by virtue of the nature of the
information supplied. If informers cannot be assured that their
identities (as sources for information) will remain confidential, they
would be very reluctant in the future to provide information pertaining
to violations of criminal and civil laws and regulations, and this would
seriously compromise the ability of the Federal Emergency Management
Agency to carry out its mission. Further, application of 5 U.S.C. 552a
(d)(1), (e)(4)(H) and (f)(2), (3) and (5) to the above-listed systems of
records would make available
[[Page 50]]
attorney's work product and other documents which contain evaluations,
recommendations, and discussions of on-going civil and criminal legal
proceedings; the availability of such documents could have a chilling
effect on the free flow of information and ideas within the Federal
Emergency Management Agency which is vital to the agency's predecisional
deliberative process, could seriously prejudice the agency's or the
Government's position in a civil or criminal litigation, and could
result in the disclosure of investigatory material which should not be
disclosed for the reasons stated above. It is the belief of the Federal
Emergency Management Agency that, in both civil actions and criminal
prosecutions, due process will assure that individuals have a reasonable
opportunity to learn of the existence of, and to challenge,
investigatory records and related materials which are to be used in
legal proceedings.
(iii) 5 U.S.C. 552a (d)(2), (3) and (4), (e)(4)(H) and (f)(4) which
are dependent upon access having been granted to records pursuant to the
provisions cited in paragraph (b)(2)(ii) of this section, enable
individuals to contest (seek amendment to) the content of records
contained in a system of records and require an agency to note an
amended record and to provide a copy of an individual's statement (of
disagreement with the agency's refusal to amend a record) to persons or
other agencies to whom the record has been disclosed. The Federal
Emergency Management Agency believes that the reasons set forth in
paragraphs (b)(2)(i) of this section are equally applicable to this
paragraph, and, accordingly, those reasons are hereby incorporated
herein by reference.
(iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request; such accountings must state the date, nature, and purpose
of each disclosure of a record and the name and address of the
recipient. The Federal Emergency Management Agency believes that
application of this provision to the above-listed systems of records
would impair the ability of the Federal Emergency Management Agency and
other law enforcement agencies to conduct investigations and inquiries
into civil and criminal violations under their respective jurisdictions.
Making accountings available to violators would alert those individuals
to the fact that the Federal Emergency Management Agency or another law
enforcement authority is conducting an investigation or inquiry into
their activities, and such accountings could reveal the geographic
location of the investigation or inquiry, the nature and purpose of the
investigation or inquiry and the nature of the information disclosed,
and the date on which that investigation or inquiry was active.
Violators possessing such knowledge would thereby be able to take
appropriate measures to avoid detection or apprehension by altering
their operations, transferring their activities to other locations or
destroying or concealing evidence which would form the basis for
prosecution or the imposition of civil sanctions.
(v) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term maintain as defined
in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.'' At the
time that information is collected by the Federal Emergency Management
Agency there is often insufficient time to determine whether the
information is relevant and necessary to accomplish a purpose of the
Federal Emergency Management Agency; in many cases information collected
may not be immediately susceptible to a determination of whether the
information is relevant and necessary, particularly in the early stages
of investigation or inquiry, and in many cases information which
initially appears to be irrelevant or unnecessary may, upon further
evaluation or upon continuation of the investigation or inquiry, prove
to have particular relevance to an enforcement program of the Federal
Emergency Management Agency. Further, not all violations of law
uncovered during a Federal Emergency Management Agency inquiry fall
within the civil or criminal jurisdiction of the Federal
[[Page 51]]
Emergency Management Agency; in order to promote effective law
enforcement, it often becomes necessary and desirable to disseminate
information pertaining to such violations to other law enforcement
agencies which have jurisdiction over the offense to which the
information relates. The Federal Emergency Management Agency should not
be placed in a position of having to ignore information relating to
violations of law not within its jurisdiction when that information
comes to the attention of the Federal Emergency Management Agency
through the conduct of a lawful FEMAs civil or criminal investigation or
inquiry. The Federal Emergency Management Agency therefore believes that
it is appropriate to exempt the above-listed systems of records from the
provisions of 5 U.S.C. 552a(e)(1).
(c) Exempt under 5 U.S.C. 552a(k)(5). The Administrator, Federal
Emergency Management Agency has determined that certain systems of
records are exempt from the requirements of (c)(3) and (d) of 5 U.S.C.
552a.
(1) Exempt systems. The following systems of records, which contain
information of the type described in 5 U.S.C. 552a(k)(5), shall be
exempted from the provisions of 5 U.S.C. 552a listed in paragraph (c) of
this section.
Claims (litigation) (FEMA/GC-1)--Limited Access
FEMA Enforcement (Compliance) (FEMA/GC-2)--Limited Access
General Investigative Files (FEMA/IG-2)--Limited Access
Security Management Information Systems (FEMA/SEC-1)--Limited Access
(2) Reasons for exemptions. All information about individuals in
these records that meet the criteria stated in 5 U.S.C. 552a(k)(5) is
exempt from the requirements of 5 U.S.C. 552a (c)(3) and (d). These
provisions of the Privacy Act relate to making accountings of disclosure
available to the subject and access to and amendment of records. These
exemptions are claimed because the system of records entitled, FEMA/SEC-
1, Security Management Information System, contains investigatory
material compiled solely for the purpose of determining suitability,
eligibility, or qualifications for access to classified information or
classified Federal contracts, but only to the extent that the disclosure
would reveal the identity of a source who furnished information to the
Government under an express promise or, prior to September 27, 1975,
under an implied promise that the identity of the source would be held
in confidence. During the litigation process and investigations, it is
possible that certain records from the system of records entitled, FEMA/
SEC-1, Security Management System may be necessary and relevant to the
litigation or investigation and included in these systems of records. To
the extent that this occurs, the Administrator, FEMA, has determined
that the records would also be exempted from subsections (c)(3) and (d)
pursuant to 5 U.S.C. 552a(k)(5) to protect such records. A determination
will be made at the time of the request for a record concerning whether
specific information would reveal the identity of a source. This
exemption is required in order to protect the confidentiality of the
sources of information compiled for the purpose of determining access to
classified information. This confidentiality helps maintain the
Government's continued access to information from persons who would
otherwise refuse to give it.
[45 FR 64580, Sept. 30, 1980, as amended at 47 FR 54816, Dec. 6, 1982;
52 FR 5114, Feb. 19, 1987]
PART 7_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS
(FEMA REG. 5)--Table of Contents
Subpart A_Nondiscrimination in FEMA-Assisted Programs_General
Sec.
7.1 Purpose.
7.2 Definitions.
7.3 Application of this regulation.
7.4 Further application of this regulation.
7.5 Specific discriminatory actions prohibited.
7.6 Life, health, and safety.
7.7 Assurances required.
7.8 Elementary and secondary schools.
7.9 Assurances from institutions.
7.10 Compliance information.
7.11 Conduct of investigations.
7.12 Procedure for effecting compliance.
7.13 Hearings.
7.14 Decisions and notices.
7.15 Judicial review.
[[Page 52]]
7.16 Effect on other regulations; forms and instructions.
Subparts B-D [Reserved]
Subpart E_Nondiscrimination on the Basis of Age in Programs or
Activities Receiving Federal Financial Assistance From FEMA
General
7.910 What is the purpose of the Age Discrimination Act of 1975?
7.911 What is the purpose of FEMA's age discrimination regulation?
7.912 To what programs or activities does this regulation apply?
7.913 Definition of terms used in this regulation.
Standards for Determining Age Discrimination
7.920 Rules against age discrimination.
7.921 Exceptions to the rules against age discrimination: Normal
operation or statutory objective of any program or activity.
7.922 Exceptions to the rules against age discrimination: Reasonable
factors other than age.
7.923 Burden of proof for exceptions.
7.924 Affirmative action by recipient.
7.925 Special benefits for children and the elderly.
7.926 Age distinctions contained in FEMA regulations.
Duties of FEMA Recipients
7.930 General responsibilities.
7.931 Notice to subrecipients and beneficiaries.
7.932 Assurance of compliance and recipient assessment of age
distinctions.
7.933 Information requirement.
Investigation, Conciliation, and Enforcement Procedures
7.940 Compliance reviews.
7.941 Complaints.
7.942 Mediation.
7.943 Investigation.
7.944 Prohibition against intimidation or retaliation.
7.945 Compliance procedure.
7.946 Hearings, decisions, post-termination proceedings.
7.947 Remedial action by recipient.
7.948 Alternate funds disbursal procedure.
7.949 Exhaustion of administrative remedies.
Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted.
Redesignated at 45 FR 44575, July 1, 1980.
Subpart A_Nondiscrimination in FEMA-Assisted Programs_General
Authority: FEMA Reg. 5 issued under sec. 602, 78 Stat. 252; 42
U.S.C. 2000 d-1; 42 U.S.C. 1855-1885g; 50 U.S.C. 404.
Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted.
Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at
55 FR 23078, June 6, 1990.
Sec. 7.1 Purpose.
The purpose of this regulation is to effectuate the provisions of
title VI of the Civil Rights Act of 1964 (hereafter referred to as the
``Act'') to the end that no person in the United States shall, on the
ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be otherwise subjected
to discrimination under any program or activity receiving Federal
financial assistance from the Federal Emergency Management Agency.
Sec. 7.2 Definitions.
As used in this regulation:
(a) The term responsible agency official with respect to any program
receiving Federal financial assistance means the Administrator of the
Federal Emergency Management Agency or other official of the agency who
by law or by delegation has the principal responsibility within the
agency for the administration of the law extending such assistance.
(b) The term United States means the States of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone, and the territories and
possessions of the United States, and the term State means any one of
the foregoing.
(c) The term Federal financial assistance includes (1) grants and
loans of Federal funds, (2) the grant or donation of Federal property
and interests in property, (3) the detail of Federal personnel, (4) the
sale and lease of, and the permission to use (on other than a casual or
transient basis), Federal property or any interest in such property
without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition
[[Page 53]]
of the public interest to be served by such sale or lease to the
recipient, and (5) any Federal agreement, arrangement, or other contract
which has as one of its purposes the provision of assistance.
(d) The terms program or activity and program mean all of the
operations of any entity described in paragraphs (d)(1) through (4) of
this section, any part of which is extended Federal financial
assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (d)(1), (2), or (3) of this section.
(e) The term facility includes all or any portion of structure,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration or acquisition of facilities.
(f) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, or organization, or other entity,
or any individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, including any
successor, assign, or transferee thereof, but such term does not include
any ultimate beneficiary.
(g) The term primary recipient means any recipient which is
authorized or required to extend Federal financial assistance to another
recipient.
(h) The term applicant means one who submits an application,
request, or plan required to be approved by a responsible agency
official, or by a primary recipient, as a condition to eligibility for
Federal financial assistance, and the term application means such an
application, request, or plan.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26,
2003]
Sec. 7.3 Application of this regulation.
No person in the United States shall, on the ground of race, color,
or national origin, be excluded from participation in, be denied the
benefits of, or be otherwise subjected to discrimination under any
program to which this regulation applies.
[68 FR 51379, Aug. 26, 2003]
Sec. 7.4 Further application of this regulation.
This regulation applies to any program for which Federal financial
assistance is authorized under a law administered by the Federal
Emergency Management Agency. It applies to money paid, property
transferred, or other Federal financial assistance extended after the
effective date of the regulation pursuant to an application approved
prior to such effective date. This regulation does not apply to (a) any
Federal financial assistance by way of insurance or guaranty contracts,
(b) money paid, property transferred, or other assistance extended
before the effective date of this regulation, (c) any assistance to any
individual who is the ultimate beneficiary,
[[Page 54]]
or (d) any employment practice, under such program, of any employer,
employment agency, or labor organization.
(Reorganization Plan No. 3 of 1978, E.O. 12127 and E.O. 12148)
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, as
amended at 48 FR 44543, Sept. 29, 1983; 68 FR 51379, Aug. 26, 2003]
Sec. 7.5 Specific discriminatory actions prohibited.
(a) A recipient to which this regulation applies may not, directly
or through contractual or other arrangements, on ground of race, color,
or national origin:
(1) Deny any individual any service, financial aid, or other benefit
provided under the program;
(2) Provide any service, financial aid, or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(3) Subject an individual to segregation or separate treatment in
any matter related to his receipt of any service, financial aid, or
other benefit under the program;
(4) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or other benefit under the program;
(5) Treat an individual differently from others in determining
whether he satisfies any admission, enrollment, quota, eligibility,
membership or other requirement or condition which individuals must meet
in order to be provided any service, financial aid, or other benefit
provided under the program;
(6) Deny an individual an opportunity to participate in the program
through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program.
(b) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of individuals to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respect individuals
of a particular race, color, or national origin.
(c) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any service, financial aid, or other benefit
provided in or through a facility provided with the aid of Federal
financial assistance.
(d) The enumeration of specific forms of prohibited discrimination
in this section does not limit the generality of the prohibition in
section 4.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26,
2003]
Sec. 7.6 Life, health, and safety.
Notwithstanding the provisions of section 5, a recipient of Federal
financial assistance shall not be deemed to have failed to comply with
section 3, if immediate provision of a service or other benefit to an
individual is necessary to prevent his death or serious impairment of
his health or safety.
Sec. 7.7 Assurances required.
Every application for Federal financial assistance to which this
regulation applies, and every application for Federal financial
assistance to provide a facility shall, as a condition to its approval
and the extension of any Federal financial assistance pursuant to the
application, contain or be accompanied by an assurance that the program
will be conducted or the facility operated in compliance with all
requirements imposed by or pursuant to this regulation. In the case of
an application for Federal financial assistance to provide real property
or structures thereon, the assurance shall obligate the recipient, or,
in the case of a subsequent transfer, the transferee, for the period
during which the real property
[[Page 55]]
or structures are used for a purpose for which the Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits. In the case of personal property the
assurance shall obligate the recipient for the period during which he
retains ownership or possession of the property. In all other cases the
assurance shall obligate the recipient for the period during which
Federal financial assistance is extended pursuant to the application.
The responsible agency official shall specify the form of the foregoing
assurances and the extent to which like assurances will be required of
subgrantee, contractors and subcontractors, transferees, successors in
interest, and other participants. Any such assurance shall include
provisions which give the United States a right to seek its judicial
enforcement.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26,
2003]
Sec. 7.8 Elementary and secondary schools.
The requirements of section 7 with respect to any elementary or
secondary school or school system shall be deemed to be satisfied if
such school or school system (a) is subject to a final order of a court
of the United States for the desegregation of such school or school
system, and provides an assurance that it will comply with such order,
including any future modification of such order, or (b) submits a plan
for the desegregation of such school or school system which the United
States Commissioner of Education determines is adequate to accomplish
the purpose of the Act and this regulation, and provides reasonable
assurance that it will carry out such plans; in any case of continuing
Federal financial assistance the responsible agency official may reserve
the right to redetermine, after such period as may be specified by him,
the adequacy of the plan to accomplish the purposes of the Act and this
regulation. In any case to which a final order of a court of the United
States for the desegregation of such school or school system is entered
after submission of such a plan, such plan shall be revised to conform
to such final order, including any future modification of such order.
Sec. 7.9 Assurances from institutions.
(a) In the case of any application for Federal financial assistance
to an institution of higher education, the assurance required by section
7 shall extend to admission practices and to all other practices
relating to the treatment of students.
(b) The assurances required with respect to an institution of higher
education, hospital, or any other institution, insofar as the assurance
relates to the institution's practices with respect to admission or
other treatment of individuals as students, patients, or clients of the
institutions or to the opportunity to participate in the provision of
services or other benefits to such individuals, shall be applicable to
the entire institution.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26,
2003]
Sec. 7.10 Compliance information.
(a) Cooperation and assistance. The responsible official in the
Federal Emergency Management Agency shall to the fullest extent
practicable seek the cooperation of recipients in obtaining compliance
with this regulation and shall provide assistance and guidance to
recipients to help them comply voluntarily with this regulation.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible agency official or his designee timely,
complete, and accurate compliance reports at such times, and in such
form and containing such information, as the responsible agency official
or his designee may determine to be necessary to enable him to ascertain
whether the recipient has complied or is complying with this regulation.
In the case in which a primary recipient extends Federal financial
assistance to any other recipient, such other recipient shall also
submit such compliance reports to the primary recipient as may be
necessary to enable the primary recipient to carry out its obligations
under this regulation.
(c) Access to sources of information. Each recipient shall permit
access by
[[Page 56]]
the responsible agency official or his designee during normal business
hours to such of its books, records, accounts, and other sources of
information, and its facilities as may be pertinent to ascertain
compliance with this regulation. Where any information required of a
recipient is in the exclusive possession of any other agency,
institution or person and this agency, institution or person shall fail
or refuse to furnish this information, the recipient shall so certify in
its report and shall set forth what efforts it has made to obtain the
information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
regulation and its applicability to the program for which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the responsible agency official
finds necessary to apprise such persons of the protection against
discrimination assured them by the Act and this regulation.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26,
2003]
Sec. 7.11 Conduct of investigations.
(a) Periodic compliance reviews. The responsible agency official or
his designee shall from time to time review the practices of recipients
to determine whether they are complying with this regulation.
(b) Complaints. Any person who believes himself or any specific
class of individuals to be subjected to discrimination prohibited by
this regulation may by himself or by a representative file a written
complaint with the National Headquarters or any Regional Office of the
Federal Emergency Management Agency. A complaint must be filed not later
than 180 days from the date of the alleged discrimination, unless the
time for filing is extended by the responsible agency official or his
designee.
(c) Investigations. The responsible agency official or his designee
will make a prompt investigation whenever a compliance review, report,
complaint, or any other information indicates a possible failure to
comply with this regulation. The investigation should include, where
appropriate, a review of the pertinent practices and policies of the
recipient, the circumstances under which the possible noncompliance with
this regulation occurred, and other factors relevant to a determination
as to whether the recipient has failed to comply with this regulation.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
regulation, the responsible agency official or his designee will so
inform the recipient and the matter will be resolved by informal means
whenever possible. If it has been determined that the matter cannot be
resolved by informal means, action will be taken as provided for in
section 12.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section the responsible agency official or his
designee will so inform the recipient and the complainant, if any, in
writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this regulation, or
because he has made a complaint, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this
regulation. The identity of complainants shall be kept confidential
except to the extent necessary to carry out the purposes of this
regulation, including the conduct of any investigation, hearing, or
judicial proceeding arising thereunder.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990, as amended at 64 FR
38309, July 16, 1999]
Sec. 7.12 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this regulation, and if the noncompliance or threatened
noncompliance cannot be corrected by informal
[[Page 57]]
means, compliance with this regulation may be effected by the suspension
or termination of or refusal to grant or to continue Federal financial
assistance or by any other means authorized by law. Such other means may
include, but are not limited to, (1) a reference to the Department of
Justice with a recommendation that appropriate proceedings be brought to
enforce any rights of the United States under any law of the United
States (including other titles of the Act), or any assurance or other
contractual undertaking, and (2) any applicable proceeding under state
or local law.
(b) Noncompliance with section 7. If an applicant fails or refuses
to furnish an assurance required under section 7 or otherwise fails or
refuses to comply with a requirement imposed by or pursuant to that
section Federal financial assistance may be refused in accordance with
the procedures of paragraph (c) of this section. The agency shall not be
required to provide assistance in such a case during the pendency of the
administrative proceedings under such paragraph except that the agency
shall continue assistance during the pendency of such proceedings where
such assistance is due and payable pursuant to an application thereof
approved prior to the effective date of this regulation.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating or refusing to
grant or continue Federal financial assistance shall become effective
until (1) the responsible agency official has advised the applicant or
recipient of his failure to comply and has determined that compliance
cannot be secured by voluntary means, (2) there has been an express
finding on the record, after opportunity for hearing, of a failure by
the applicant or recipient to comply with a requirement imposed by or
pursuant to this regulation, (3) the action has been approved by the
Administrator of the Federal Emergency Management Agency pursuant to
section 14, and (4) the expiration of 30 days after the Administrator
has filed with the committee of the House and the committee of the
Senate having legislative jurisdiction over the program involved, a full
written report of the circumstances and the grounds for such action. Any
action to suspend or terminate or to refuse to grant or to continue
Federal financial assistance shall be limited to the particular
political entity, or part thereof, or other applicant or recipient as to
whom such a finding has been made and shall be limited in its effect to
the particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to effect compliance by
any other means authorized by law shall be taken until (1) the
responsible agency official has determined that compliance cannot be
secured by voluntary means, (2) the action has been approved by the
Administrator of the Federal Emergency Management Agency, (3) the
recipient or other person has been notified of its failure to comply and
of the action to be taken to effect compliance, and (4) the expiration
of at least 10 days from the mailing of such notice to the recipient or
other person. During this period of at least 10 days additional efforts
shall be made to persuade the recipient or other person to comply with
the regulation and to take such corrective action as may be appropriate.
Sec. 7.13 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by section 12(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and either
(1) fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the responsible
agency official that the matter be scheduled for hearing or (2) advise
the applicant or recipient that the matter in question has been set down
for hearing at a stated place and time. The time and place so fixed
shall be reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of the
[[Page 58]]
hearing. An applicant or recipient may waive a hearing and submit
written information and argument for the record. The failure of an
applicant or recipient to request a hearing under this subsection or to
appear at a hearing for which a date has been set shall be deemed to be
a waiver of the right to a hearing under section 602 of the Act and
section 12(c) of this regulation and consent to the making of a decision
on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the
National Headquarters of the Federal Emergency Management Agency in
Washington, DC, at a time fixed by the responsible agency official
unless he determines that the convenience of the applicant or recipient
or of the agency requires that another place be selected. Hearings shall
be held before the responsible agency official or, at his discretion,
before a hearing examiner designated in accordance with section 11 of
the Administrative Procedure Act.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the agency shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
sections 5-8 of the Administrative Procedure Act, and in accordance with
such rules of procedure as are proper (and not inconsistent with this
section) relating to the conduct of the hearing, giving of notices
subsequent to those provided for in paragraph (a) of this section,
taking of testimony, exhibits, arguments and briefs, requests for
findings, and other related matters. Both the agency and the applicant
or recipient shall be entitled to introduce all relevant evidence on the
issues as stated in the notice for hearing or as determined by the
officer conducting the hearing at the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this regulation, but rules or principles designed
to assure production of the most credible evidence available and to
subject testimony to test by cross-examination shall be applied where
reasonably necessary by the officer conducting the hearing. The hearing
officer may exclude irrelevant, immaterial, or unduly repetitious
evidence. All documents and other evidence offered or taken for the
record shall be open to examination by the parties and opportunity shall
be given to refute facts and arguments advanced on either side of the
issues. A transcript shall be made of the oral evidence except to the
extent the substance thereof is stipulated for the record. All decisions
shall be based upon the hearing record and written findings shall be
made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this
regulation with respect to two or more Federal statutes, authorities, or
other means by which Federal financial assistance is extended and to
which this regulation applies, or noncompliance with this regulation and
the regulations of one or more other Federal departments or agencies
issued under title VI of the Act, the Administrator of the Federal
Emergency Management Agency may, by agreement with such other
departments or agencies where applicable, provide for the conduct of
consolidated or joint hearings, and for the application to such hearings
of rules of procedures not inconsistent with this regulation. Final
decisions in such cases, insofar as this regulation is concerned, shall
be made in accordance with section 14.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26,
2003]
Sec. 7.14 Decisions and notices.
(a) Decision by person other than the responsible agency official.
If the hearing is held by a hearing examiner such hearing examiner shall
either make an initial decision, if so authorized, or certify the entire
record including his recommended findings and proposed decision to the
responsible agency official for a final decision, and a copy of such
initial decision or certification shall be mailed to the applicant or
recipient. Where the initial decision is
[[Page 59]]
made by the hearing examiner the applicant or recipient may within 30
days of the mailing of such notice of initial decision file with the
responsible agency official his exceptions to the initial decision, with
his reasons therefor. In the absence of exceptions, the responsible
agency official may on his own motion within 45 days after the initial
decision serve on the applicant or recipient a notice that he will
review the decision. Upon the filing of such exceptions or of such
notice of review the responsible agency official shall review the
initial decision and issue his own decision thereon including the
reasons therefor. In the absence of either exceptions or a notice of
review the initial decision shall constitute the final decision of the
responsible agency official.
(b) Decisions on record or review by the responsible agency
official. Whenever a record is certified to the responsible agency
official for decision or he reviews the decision of a hearing examiner
pursuant to paragraph (a) of this section, or whenever he conducts the
hearing, the applicant or recipient shall be given reasonable
opportunity to file with him briefs or other written statements of its
contentions, and a copy of his final decision shall be given in writing
to the applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to section 13(a) a decision shall be made by
the responsible agency official on the record and a copy of such
decision shall be given in writing to the applicant or recipient, and to
the complainant, if any.
(d) Rulings required. Each decision of a hearing officer or
responsible agency official shall set forth his ruling on each finding,
conclusion, or exception presented, and shall identify the requirement
or requirements imposed by or pursuant to this regulation with which it
is found that the applicant or recipient has failed to comply.
(e) Approval by Administrator. Any final decision of a responsible
agency official (other than the Director of the agency) which provides
for the suspension or termination of, or the refusal to grant or
continue Federal financial assistance, or the imposition of any other
sanction available under this regulation or the Act, shall promptly be
transmitted to the Administrator of the Federal Emergency Management
Agency who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, to which this regulation applies, and
may contain such terms, conditions, and other provisions as are
consistent with and will effectuate the purposes of the Act and this
regulation, including provisions designed to assure that no Federal
financial assistance to which this regulation applies will thereafter be
extended to the applicant or recipient determined by such decision to be
in default in its performance of an assurance given by it pursuant to
this regulation, or to have otherwise failed to comply with this
regulation, unless and until it corrects its noncompliance and satisfies
the Administrator of the Federal Emergency Management Agency that it
will fully comply with this regulation.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26,
2003]
Sec. 7.15 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
Sec. 7.16 Effect on other regulations; forms and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions heretofore issued by any officer of the Federal Emergency
Management Agency which impose requirements designed to prohibit any
discrimination against individuals on the ground of race, color, or
national origin under any program to which this regulation applies, and
which authorize the suspension or termination of or refusal to grant or
to continue Federal financial assistance to any applicant for or
recipient of such assistance for failure to comply
[[Page 60]]
with such requirements, are hereby superseded to the extent that such
discrimination is prohibited by this regulation, except that nothing in
this regulation shall be deemed to relieve any person of any obligation
assumed or imposed under any such superseded regulation, order,
instruction, or like direction prior to the effective date of this
regulation. Nothing in this regulation, however, shall be deemed to
supersede Executive Orders 10925 and 11114 (including future amendments
thereof) and regulations issued thereunder, or any other regulations or
instructions, insofar as such regulations or instructions prohibit
discrimination on the ground of race, color, or national origin in any
program or situation to which this regulation is inapplicable, or
prohibit discrimination on any other ground.
(b) Forms and instructions. Each responsible agency official shall
issue and promptly make available to interested persons forms and
detailed instructions and procedures for effectuating this regulation as
applied to programs to which this regulation applies and for which he is
responsible.
(c) Supervision and coordination. The Administrator of the Federal
Emergency Management Agency may from time to time assign to officials of
other departments or agencies of the Government with the consent of such
departments or agencies, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this regulation
(other than responsibility for final decision as provided in section
14), including the achievement of effective coordination and maximum
uniformity within the agency and within the Executive Branch of the
Government in the application of title VI and this regulation to similar
programs and in similar situations.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26,
2003]
Subparts B-D [Reserved]
Subpart E_Nondiscrimination on the Basis of Age in Programs or
Activities Receiving Federal Financial Assistance From FEMA
Authority: Age Discrimination Act of 1975, as amended (42 U.S.C.
6101 et seq.); 45 CFR part 90.
Source: 55 FR 23078, June 6, 1990, unless otherwise noted.
General
Sec. 7.910 What is the purpose of the Age Discrimination Act of 1975?
The Age Discrimination Act of 1975 (the ``Act''), as amended, is
designed to prohibit discrimination on the basis of age in programs or
activities receiving Federal financial assistance. The Act also permits
federally-assisted programs or activities, and recipients of Federal
funds, to continue to use certain age distinctions and factors other
than age which meet the requirements of the Act and this regulation.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 7.911 What is the purpose of FEMA's age discrimination
regulation?
The purpose of this regulation is to set out FEMA's policies and
procedures under the Age Discrimination Act of 1975 and the general
governmentwide regulations, 45 CFR part 90. The Act and the general
regulations prohibit discrimination on the basis of age in programs or
activities receiving Federal financial assistance. The Act and the
general regulations permit federally-assisted programs or activities,
and recipients of Federal funds, to continue to use age distinctions and
factors other than age which meet the requirements of the Act and its
implementing regulations.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 7.912 To what programs or activities does this regulation apply?
(a) The Act and this regulation apply to each FEMA recipient and to
each program or activity operated by the recipient which receives
Federal financial assistance provided by FEMA.
[[Page 61]]
(b) The Act and this regulation do not apply to:
(1) An age distinction contained in that part of a Federal, State or
local statute or ordinance adopted by an elected, general purpose
legislative body which:
(i) Provides any benefits or assistance to persons based on age; or
(ii) Establishes criteria for participation in age-related terms; or
(iii) Describes intended beneficiaries or target groups in age-
related terms.
(2) Any employment practice of any employer, employment agency,
labor organization, or any labor-management joint apprenticeship
training program, except for any program or activity receiving Federal
financial assistance for public service employment under the Job
Training Partnership Act (29 U.S.C. 150, et seq.)
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 7.913 Definition of terms used in this regulation.
As used in this regulation, the term Act means the Age
Discrimination Act of 1975 as amended (title III of Pub. L. 94-135).
Action means any act, activity, policy, rule, standard, or method of
administration; or the use of any policy, rule, standard or method of
administration.
Administrator means the Administrator of the Federal Emergency
Management Agency.
Age means how old a person is, or the number of years from the date
of a person's birth.
Age distinction means any action using age or an age-related term.
Age-related term means a word or words which necessarily imply a
particular age or range of ages (for example, children, older persons,
but not student).
Agency means the Federal Emergency Management Agency.
Federal financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement by which
the agency provides or otherwise makes available assistance in the form
of:
(a) Funds; or
(b) Services or Federal personnel; or
(c) Real and personal property or any interest in or use of
property, including:
(1) Transfers or leases of property for less than fair market value
or for reduced consideration; and
(2) Proceeds from a subsequent transfer or lease of property if the
Federal share of its fair market value is not returned to the Federal
Government.
Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objective.
Program or activity means all of the operations of any entity
described in paragraphs (1) through (4) of this definition, any part of
which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities
[[Page 62]]
described in paragraph (1), (2), or (3) of this definition.
Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, institution,
organization, or other entity, or any person to which Federal financial
assistance is extended, directly or through another recipient. Recipient
includes any successor, assignee, or transferee, but excludes the
ultimate beneficiary of the assistance.
Statutory objective means any purpose of a program or activity
expressly stated in any Federal statute, State statute or local statute
or ordinance adopted by an elected, general purpose legislative body.
Subrecipient means any of the entities in the definition of
``recipient'' to which a recipient extends or passes on Federal
financial assistance. A subrecipient is generally regarded as a
recipient of Federal financial assistance and has all the duties of a
recipient in these regulations.
United States includes the States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
American Samoa, Guam, the Commonwealth of the Northern Mariana Islands,
Wake Island, the Canal Zone, the Trust Territory of the Pacific Islands
and all other territories and possessions of the United States. The term
``State'' also includes any one of the foregoing.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003; 74
FR 15335, Apr. 3, 2009]
Standards for Determining Age Discrimination
Sec. 7.920 Rules against discrimination.
The rules stated in this section are limited by the exceptions
contained in Secs. 7.921 and 7.922 of these regulations.
(a) General rule: No person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under, any program or activity receiving
Federal financial assistance.
(b) Specific rules: A recipient may not, in any program or activity
receiving Federal financial assistance, directly or through contractual
licensing, or other arrangements, use age distinctions or take any other
actions which have the effect, on the basis of age, of:
(1) Excluding individuals from, denying them the benefits of,
subjecting them to discrimination under, a program or activity receiving
Federal financial assistance; or
(2) Denying or limiting individuals in their opportunity to
participate in any program or activity receiving Federal financial
assistance. The specific forms of age discrimination listed in paragraph
(b) of this section do not necessarily constitute a complete list.
Sec. 7.921 Exceptions to the rules against age discrimination:
Normal operation or statutory objective of any program or activity.
A recipient is permitted to take an action, otherwise prohibited by
Sec. 7.920, if the action reasonably takes into account age as a factor
necessary to the normal operation of the achievement of any statutory
objective of a program or activity. An action reasonably takes into
account age as a factor necessary to the normal operation or the
achievement of any statutory objective of a program or activity, if:
(a) Age is used as a measure or approximation of one or more other
characteristics; and
(b) The other characteristic(s) must be measured or approximated in
order for the normal operation of the program or activity to continue,
or to achieve any statutory objective of the program or activity; and
(c) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(d) The other characteristic(s) are impractical to measure directly
on an individual basis.
Sec. 7.922 Exceptions to the rules against age discrimination:
Reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by
Sec. 7.920 which is based on a factor other than age, even though that
action may have a disproportionate effect on persons of different ages
only if the factor bears a direct and substantial relationship to the
normal operation of the program or
[[Page 63]]
activity or to the achievement of a statutory objective.
Sec. 7.923 Burden of proof for exceptions.
The burden of proving that an age distinction or other action falls
within the exceptions outlined in Secs. 7.921 and 7.922 is on the
recipient of Federal financial assistance.
Sec. 7.924 Affirmative action by recipient.
Even in the absence of a finding of discrimination, a recipient may
take affirmative action to overcome the effects of conditions that
resulted in the limited participation in the recipient's program or
activity on the basis of age.
Sec. 7.925 Special benefits for children and the elderly.
If a recipient operating a program or activity provides special
benefits to the elderly or to children, such use of age distinctions
shall be presumed to be necessary to the normal operation of the program
or activity, notwithstanding the provisions of Sec. 7.921.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 7.926 Age distinctions contained in FEMA regulations.
Any age distinctions contained in a rule or regulation issued by
FEMA shall be presumed to be necessary to the achievement of a statutory
objective of the program or activity to which the rule or regulation
applies, notwithstanding the provisions of Sec. 7.921.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Duties of FEMA Recipients
Sec. 7.930 General responsibilities.
Each FEMA recipient has primary responsibility to ensure that its
programs or activities are in compliance with the Act and this
regulation, and shall take steps to eliminate violations of the Act. A
recipient also has responsibility to maintain records, provide
information, and to afford FEMA access to its records to the extent FEMA
finds necessary to determine whether the recipient is in compliance with
the Act and this regulation.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 7.931 Notice to subrecipients and beneficiaries.
(a) Where a recipient passes on Federal financial assistance from
FEMA to subrecipients, the recipient shall provide the subrecipients
written notice of their obligations under the Act and this regulation.
(b) Each recipient shall make necessary information about the Act
and this regulation available to its beneficiaries in order to inform
them about the protection against discrimination provided by the Act and
this regulation.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 7.932 Assurance of compliance and recipient assessment of age
distinctions.
(a) Each recipient of Federal financial assistance from FEMA shall
sign a written assurance as specified by FEMA that it will comply with
Act and this regulation.
(b) Recipient assessment of age distinctions. (1) As part of the
compliance review under Sec. 7.940 or complaint investigation under
Sec. 7.943, FEMA may require a recipient employing the equivalent of
fifteen or more employees to complete written evaluation, in a manner
specified by the responsible Agency official, of any age distinction
imposed in its program or activity receiving Federal financial
assistance from FEMA to assess the recipient's compliance with the Act.
(2) Whenever an assessment indicates a violation of the Act and the
FEMA regulations, the recipient shall take corrective action.
Sec. 7.933 Information requirement.
Each recipient shall:
(a) Keep records in a form acceptable to FEMA and containing
information which FEMA determines are necessary to ascertain whether the
recipient is complying with the Act and this regulation.
(b) Provide to FEMA, upon request, information and reports which
FEMA
[[Page 64]]
determines are necessary to ascertain whether the recipient is complying
with the Act and this regulation.
(c) Permit FEMA reasonable access to the books, records, accounts,
and other recipient facilities and sources of information to the extent
FEMA determines is necessary to ascertain whether the recipient is
complying with the Act and this regulation.
Investigation, Conciliation, and Enforcement Procedures
Sec. 7.940 Compliance reviews.
(a) FEMA may conduct compliance reviews and preaward reviews or use
other similar procedures that will permit it to investigate and correct
violations of the Act and this regulation. FEMA may conduct these
reviews even in the absence of a complaint against a recipient. The
reviews may be as comprehensive as necessary to determine whether a
violation of the Act and this regulation has occurred.
(b) If a compliance review or preaward review indicates a violation
of the Act or this regulation, FEMA will attempt to achieve voluntary
compliance with the Act. If voluntary compliance cannot be achieved,
FEMA will arrange for enforcement as described in Sec. 7.945.
Sec. 7.941 Complaints.
(a) Any person, individually or as a member of a class or on behalf
of others, may file a complaint with FEMA, alleging discrimination
prohibited by the Act or these regulations occurring after the date of
final adoption of this rule. A complainant shall file a complaint within
180 days from the date the complainant first had knowledge of the
alleged act of discrimination. However, for good cause showing, FEMA may
extend this time limit.
(b) FEMA will consider the date a complaint is filed to be the date
upon which the complaint is sufficient to be processed. A complaint is
deemed ``sufficient'' when it contains particulars (e.g., names,
addresses, and telephone numbers of parties involved; date(s) of alleged
discrimination; kind(s) of alleged discrimination) upon which to begin
an investigation.
(c) FEMA will attempt to facilitate the filing of complaints
wherever possible, including taking the following measures:
(1) Accepting as a sufficient complaint any written statement which
identifies the parties involved and the date the complainant first had
knowledge of the alleged violation, describes generally the action or
practice complained of, and is signed by the complainant.
(2) Freely permitting a complainant to add information to the
complaint to meet the requirements of a sufficient complaint.
(3) Notifying the complainant and the recipient of their rights and
obligations under the complaint procedure, including the right to have a
representative at all stages of the complaint procedure.
(4) Notifying the complainant and the recipient (or their
representatives) of their right to contact FEMA for information and
assistance regarding the complaint resolution process.
(d) FEMA will return to the complainant any complaint outside the
jurisdiction of this regulation, and will state the reason(s) why it is
outside the jurisdiction of this regulation.
Sec. 7.942 Mediation.
(a) FEMA will promptly refer to a mediation agency designated by the
Administrator all sufficient complaints that:
(1) Fall within the jurisdiction of the Act and this regulation,
unless the age distinction complained of is clearly within an exception;
and,
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the
mediation process to the extent necessary to reach an agreement or for
the mediator to make an informed judgment that an agreement is not
possible.
(c) If the complainant and the recipient reach an agreement, the
mediator shall prepare a written statement of the agreement and have the
complainant and the recipient sign it. The mediator shall send a copy of
the agreement to FEMA. FEMA will take no further action on the complaint
unless the
[[Page 65]]
complainant or the recipient fails to comply with the agreement.
(d) The mediator shall protect the confidentiality of all
information obtained in the course of the mediation process. No mediator
shall testify in any adjudicative proceeding, produce any document, or
otherwise disclose any information obtained in the course of the
mediation process without prior approval of the head of the mediation
agency.
(e) The mediation will proceed for a maximum of 60 days after a
complaint is filed with FEMA. Mediation ends if:
(1) Sixty days elapse from the time the complaint is filed; or
(2) Prior to the end of that 60 day period, an agreement is reached;
or
(3) Prior to the end of that 60 day period, the mediator determines
that an agreement cannot be reached. This 60 day period may be extended
by the mediator, with the concurrence of FEMA, for not more than 30 days
if the mediator determines agreement will likely be reached during such
extended period.
(f) The mediator shall return unresolved complaints to FEMA.
Sec. 7.943 Investigation.
(a) Informal investigation. (1) FEMA will investigate complaints
that are unresolved after mediation or are reopened because of a
violation of a mediation agreement.
(2) As part of the initial investigation, FEMA will use informal
fact finding methods, including joint or separate discussion with the
complainant and recipient, to establish the facts and, if possible,
settle the complaint on terms that are mutually agreeable to the
parties. FEMA may seek the assistance of any involved state agency.
(3) FEMA will put any agreement in writing and have it signed by the
parties and an authorized official at FEMA.
(4) The settlement shall not affect the operation of any other
enforcement effort of FEMA, including compliance reviews and
investigation of other complaints which may involve the recipient.
(5) The settlement is not a finding of discrimination against a
recipient.
(b) Formal investigation. If FEMA cannot resolve the complaint
through informal investigation, it will begin to develop formal findings
through further investigation of the complaint. If the investigation
indicates a violation of this regulation, FEMA will attempt to obtain
voluntary compliance, it will begin enforcement as described in
Sec. 7.945.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 7.944 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation
against any person who:
(a) Attempts to assert a right protected by the Act or this
regulation; or
(b) Cooperates in any mediation, investigation, hearing, or other
part of FEMA's investigation, conciliation and enforcement process.
Sec. 7.945 Compliance procedure.
(a) FEMA may enforce the Act and this regulation through:
(1) Termination of a recipient's Federal financial assistance from
FEMA under the program or activity involved where the recipient has
violated the Act or this regulation. The determination of the
recipient's violation may be made only after a recipient has had an
opportunity for a hearing on the record before an administrative law
judge.
(2) Any other means authorized by law including but not limited to:
(i) Referral to the Department of Justice for proceedings to enforce
any rights of the United States or obligations of the recipient created
by the Act or this regulation.
(ii) Use of any requirement of or referral to any Federal, State or
local government agency that will have the effect of correcting a
violation of the Act or this regulation.
(b) FEMA will limit any termination under Sec. 7.945(a)(1) to the
particular recipient and particular program or activity or part of such
program or activity FEMA finds in violation of this regulation. FEMA
will not base any part of a termination on a finding with respect to any
program or activity of the recipient which does not receive Federal
financial assistance from FEMA.
[[Page 66]]
(c) FEMA will take no action under paragraph (a) until:
(1) The Administrator has advised the recipient of its failure to
comply with the Act and this regulation and has determined that
voluntary compliance cannot be obtained.
(2) Thirty days have elapsed after the Administrator has sent a
written report of the circumstances and grounds of the action to the
committees of the Congress having legislative jurisdiction over the
program or activity involved. The Administrator will file a report
whenever any action is taken under paragraph (a).
(d) FEMA also may defer granting new Federal financial assistance
from FEMA to a recipient when a hearing under Sec. 7.945(a)(1) is
initiated.
(1) New Federal financial assistance from FEMA includes all
assistance for which FEMA requires an application or approval, including
renewal or continuation of existing activities, or authorization of new
activities, during the deferral period. New Federal financial assistance
from FEMA does not include increases in funding as a result of changed
computation of formula awards or assistance approved prior to the
beginning of a hearing under Sec. 7.945(a)(1).
(2) FEMA will not begin a deferral until the recipient has received
a notice of an opportunity for a hearing under Sec. 7.945(a)(1). FEMA
will not continue a deferral for more than 60 days unless a hearing has
begun within that time or the time for beginning the hearing has been
extended by mutual consent of the recipient for more than 30 days after
the close of the hearing, unless the hearing results in a finding
against the recipient.
(3) FEMA will limit any deferral to the particular recipient and
particular program or activity or part of such program or activity FEMA
finds in violation of this regulation. FEMA will not base any part of a
deferral on a finding with respect to any program or activity of the
recipient which does not and would not, in connection with new funds,
receive Federal financial assistance from FEMA.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 7.946 Hearings, decisions, post-termination proceedings.
Certain FEMA procedural provisions applicable to title VI of the
Civil Rights Act of 1964 apply to FEMA enforcement of this regulation.
They are found at 44 CFR 7.10 through 7.16.
Sec. 7.947 Remedial action by recipient.
Where FEMA finds a recipient has discriminated on the basis of age,
the recipient shall take any remedial action that FEMA may require to
overcome the effects of the discrimination. If another recipient
exercises control over the recipient that had discriminated, FEMA may
require both recipients to take remedial action.
Sec. 7.948 Alternate funds disbursal procedure.
(a) When FEMA withholds funds from recipient under this regulation,
the Administrator may, if allowable under the statute governing the
assistance, disburse the withheld funds directly to an alternate
recipient: Any public or nonprofit private organization or agency, or
State or political subdivision of the State.
(b) The Administrator will require any alternate recipient to
demonstrate:
(1) The ability to comply with this regulation; and
(2) The ability to achieve the goals of the Federal statute
authorizing the Federal financial assistance.
[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]
Sec. 7.949 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion
of administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and FEMA had made no finding with regard to the complaint; or
(2) FEMA issues any finding in favor of the recipient.
(b) If FEMA fails to make a finding within 180 days or issues a
finding in favor of the recipient, FEMA shall:
(1) Promptly advise the complainant in writing of this fact; and
[[Page 67]]
(2) Advise the complainant of his or her right to bring a civil
action for injunctive relief; and
(3) Inform the complainant:
(i) That the complainant may bring a civil action only in a United
States District Court for the district in which the recipient is located
or transacts business;
(ii) That a complainant prevailing in a civil action has the right
to be awarded the costs of the action, including reasonable attorney's
fees, but that the complainant must demand these costs in the complaint
at the time it is filed.
(iii) That before commencing the action, the complainant shall give
30 days notice by registered mail to the Administrator, the Attorney
General of the United States, and the recipient;
(iv) That the notice must state: The alleged violation of the Act;
the relief requested; the court in which the complainant is bringing the
action; and whether or not attorney's fees are demanded in the event the
complainant prevails; and
(v) That the complainant may not bring an action if the same alleged
violation of the Act by the same recipient is the subject of a pending
action in any court (Federal or State) of the United States.
PART 8 [RESERVED]
PART 9_FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS--
Table of Contents
Sec.
9.1 Purpose of part.
9.2 Policy.
9.3 Authority.
9.4 Definitions.
9.5 Scope.
9.6 Decision-making process.
9.7 Determination of proposed action's location.
9.8 Public notice requirements.
9.9 Analysis and reevaluation of practicable alternatives.
9.10 Identify impacts of proposed actions.
9.11 Mitigation.
9.12 Final public notice.
9.13 Particular types of temporary housing.
9.14 Disposal of Agency property.
9.15 Planning programs affecting land use.
9.16 Guidance for applicants.
9.17 Instructions to applicants.
9.18 Responsibilities.
Appendix A to Part 9--Decision-Making Process for E.O. 11988
Authority: E.O. 11988 of May 24, 1977. 3 CFR, 1977 Comp., p. 117;
E.O. 11990 of May 24 1977, 3 CFR, 1977 Comp. p. 121; Reorganization Plan
No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of
March 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148 of
July 20, 1979, 44 FR 43239, 3 CFR, 1979 Comp., p. 412, as amended.; E.O.
12127; E.O. 12148; 42 U.S.C. 5201.
Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.
Sec. 9.1 Purpose of part.
This regulation sets forth the policy, procedure and
responsibilities to implement and enforce Executive Order 11988,
Floodplain Management, and Executive Order 11990, Protection of
Wetlands.
Sec. 9.2 Policy.
(a) FEMA shall take no action unless and until the requirements of
this regulation are complied with.
(b) It is the policy of the Agency to provide leadership in
floodplain management and the protection of wetlands. Further, the
Agency shall integrate the goals of the Orders to the greatest possible
degree into its procedures for implementing NEPA. The Agency shall take
action to:
(1) Avoid long- and short-term adverse impacts associated with the
occupancy and modification of floodplains and the destruction and
modification of wetlands;
(2) Avoid direct and indirect support of floodplain development and
new construction in wetlands wherever there is a practicable
alternative;
(3) Reduce the risk of flood loss;
(4) Promote the use of nonstructural flood protection methods to
reduce the risk of flood loss;
(5) Minimize the impact of floods on human health, safety and
welfare;
(6) Minimize the destruction, loss or degradation of wetlands;
(7) Restore and preserve the natural and beneficial values served by
floodplains;
(8) Preserve and enhance the natural values of wetlands;
(9) Involve the public throughout the floodplain management and
wetlands protection decision-making process;
[[Page 68]]
(10) Adhere to the objectives of the Unified National Program for
Floodplain Management; and
(11) Improve and coordinate the Agency's plans, programs, functions
and resources so that the Nation may attain the widest range of
beneficial uses of the environment without degradation or risk to health
and safety.
Sec. 9.3 Authority.
The authority for these regulations is (a) Executive Order 11988,
May 24, 1977, which replaced Executive Order 11296, August 10, 1966, (b)
Executive Order 11990, May 24, 1977, (c) Reorganization Plan No. 3 of
1978 (43 FR 41943); and (d) Executive Order 12127, April 1, 1979 (44 FR
1936). E.O. 11988 was issued in furtherance of the National Flood
Insurance Act of 1968, as amended (Pub. L. 90-488); the Flood Disaster
Protection Act of 1973, as amended (Pub. L. 93-234); and the National
Environmental Policy Act of 1969 (NEPA) (Pub. L. 91-190). Section 2(d)
of Executive Order 11988 requires issuance of new or amended regulations
and procedures to satisfy its substantive and procedural provisions.
E.O. 11990 was issued in furtherance of NEPA, and at section 6 required
issuance of new or amended regulations and procedures to satisfy its
substantive and procedural provisions.
[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 44543, Sept. 29, 1983]
Sec. 9.4 Definitions.
The following definitions shall apply throughout this regulation.
Action means any action or activity including: (a) Acquiring,
managing and disposing of Federal lands and facilities; (b) providing
federally undertaken, financed or assisted construction and
improvements; and (c) conducting Federal activities and programs
affecting land use, including, but not limited to, water and related
land resources, planning, regulating and licensing activities.
Actions Affecting or Affected by Floodplains or Wetlands means
actions which have the potential to result in the long- or short-term
impacts associated with (a) the occupancy or modification of
floodplains, and the direct or indirect support of floodplain
development, or (b) the destruction and modification of wetlands and the
direct or indirect support of new construction in wetlands.
Administrator means the Administrator of the Federal Emergency
Management Agency.
Agency means the Federal Emergency Management Agency (FEMA).
Agency Assistance means grants for projects or planning activities,
loans, and all other forms of financial or technical assistance provided
by the Agency.
Base Flood means the flood which has a one percent chance of being
equalled or exceeded in any given year (also known as a 100-year flood).
This term is used in the National Flood Insurance Program (NFIP) to
indicate the minimum level of flooding to be used by a community in its
floodplain management regulations.
Base Floodplain means the 100-year floodplain (one percent chance
floodplain).
Coastal High Hazard Area means the areas subject to high velocity
waters including but not limited to hurricane wave wash or tsunamis. On
a Flood Insurance Rate Map (FIRM), this appears as zone V1-30, VE or V.
Critical Action means an action for which even a slight chance of
flooding is too great. The minimum floodplain of concern for critical
actions is the 500-year floodplain, i.e., critical action floodplain.
Critical actions include, but are not limited to, those which create or
extend the useful life of structures or facilities:
(a) Such as those which produce, use or store highly volatile,
flammable, explosive, toxic or water-reactive materials;
(b) Such as hospitals and nursing homes, and housing for the
elderly, which are likely to contain occupants who may not be
sufficiently mobile to avoid the loss of life or injury during flood and
storm events;
(c) Such as emergency operation centers, or data storage centers
which contain records or services that may become lost or inoperative
during flood and storm events; and
(d) Such as generating plants, and other principal points of utility
lines.
[[Page 69]]
Direct Impacts means changes in floodplain or wetland values and
functions and changes in the risk to lives and property caused or
induced by an action or related activity. Impacts are caused whenever
these natural values and functions are affected as a direct result of an
action. An action which would result in the discharge of polluted storm
waters into a floodplain or wetland, for example, would directly affect
their natural values and functions. Construction-related activities,
such as dredging and filling operations within the floodplain or a
wetland would be another example of impacts caused by an action.
Emergency Actions means emergency work essential to save lives and
protect property and public health and safety performed under sections
305 and 306 of the Disaster Relief Act of 1974 (42 U.S.C. 5145 and
5146). See 44 CFR part 205, subpart E.
Enhance means to increase, heighten, or improve the natural and
beneficial values associated with wetlands.
Facility means any man-made or man-placed item other than a
structure.
FEMA means the Federal Emergency Management Agency.
FIA means the Federal Insurance Administration.
Five Hundred Year Floodplain (the 500-year floodplain or 0.2 percent
change floodplain) means that area, including the base floodplain, which
is subject to inundation from a flood having a 0.2 percent chance of
being equalled or exceeded in any given year.
Flood or flooding means a general and temporary condition of partial
or complete inundation of normally dry land areas from the overflow of
inland and/or tidal waters, and/or the unusual and rapid accumulation or
runoff of surface waters from any source.
Flood Fringe means that portion of the floodplain outside of the
floodway (often referred to as ``floodway fringe'').
Flood Hazard Boundary Map (FHBM) means an official map of a
community, issued by the Administrator, where the boundaries of the
flood, mudslide (i.e., mudflow) and related erosion areas having special
hazards have been designated as Zone A, M, or E.
Flood Insurance Rate Map (FIRM) means an official map of a community
on which the Administrator has delineated both the special hazard areas
and the risk premium zones applicable to the community. FIRMs are also
available digitally, and are called Digital Flood Insurance Rate Maps
(DFIRM).
Flood Insurance Study (FIS) means an examination, evaluation and
determination of flood hazards and, if appropriate, corresponding water
surface elevations or an examination, evaluation and determination of
mudslide (i.e., mudflow) and/or flood-related erosion hazards.
Floodplain means the lowland and relatively flat areas adjoining
inland and coastal waters including, at a minimum, that area subject to
a one percent or greater chance of flooding in any given year. Wherever
in this regulation the term ``floodplain'' is used, if a critical action
is involved, ``floodplain'' shall mean the area subject to inundation
from a flood having a 0.2 percent chance of occurring in any given year
(500-year floodplain). ``Floodplain'' does not include areas subject
only to mudflow until FIA adopts maps identifying ``M'' Zones.
Floodproofing means the modification of individual structures and
facilities, their sites, and their contents to protect against
structural failure, to keep water out, or to reduce effects of water
entry.
Floodway means that portion of the floodplain which is effective in
carrying flow, within which this carrying capacity must be preserved and
where the flood hazard is generally highest, i.e., where water depths
and velocities are the greatest. It is that area which provides for the
discharge of the base flood so the cumulative increase in water surface
elevation is no more than one foot.
Functionally Dependent Use means a use which cannot perform its
intended purpose unless it is located or carried out in close proximity
to water, (e.g., bridges, and piers).
Indirect Impacts means an indirect result of an action whenever the
action induces or makes possible related activities which effect the
natural values and functions of floodplains or wetlands or the risk to
lives and property.
[[Page 70]]
Such impacts occur whenever these values and functions are potentially
affected, either in the short- or long-term, as a result of undertaking
an action.
Minimize means to reduce to the smallest amount or degree possible.
Mitigation means all steps necessary to minimize the potentially
adverse effects of the proposed action, and to restore and preserve the
natural and beneficial floodplain values and to preserve and enhance
natural values of wetlands.
Mitigation Directorate means the Mitigation Directorate of the
Federal Emergency Management Agency.
Natural Values of Floodplains and Wetlands means the qualities of or
functions served by floodplains and wetlands which include but are not
limited to: (a) Water resource values (natural moderation of floods,
water quality maintenance, groundwater recharge); (b) living resource
values (fish, wildlife, plant resources and habitats); (c) cultural
resource values (open space, natural beauty, scientific study, outdoor
education, archeological and historic sites, recreation); and (d)
cultivated resource values (agriculture, aquaculture, forestry).
New Construction means the construction of a new structure
(including the placement of a mobile home) or facility or the
replacement of a structure or facility which has been totally destroyed.
New Construction in Wetlands includes draining, dredging,
channelizing, filling, diking, impounding, and related activities and
any structures or facilities begun or authorized after the effective
dates of the Orders, May 24, 1977.
Orders means Executive Orders 11988, Floodplain Management, and
11990, Protection of Wetlands.
Practicable means capable of being done within existing constraints.
The test of what is practicable depends upon the situation and includes
consideration of all pertinent factors, such as environment, cost and
technology.
Preserve means to prevent alterations to natural conditions and to
maintain the values and functions which operate the floodplains or
wetlands in their natural states.
Regional Administrator means the Regional Administrator of the
Federal Emergency Management Agency for the Region in which FEMA is
acting, or the Disaster Recovery Manager when one is designated.
Regulatory Floodway means the area regulated by federal, State or
local requirements to provide for the discharge of the base flood so the
cumulative increase in water surface elevation is no more than a
designated amount (not to exceed one foot as set by the National Flood
Insurance Program).
Restore means to reestablish a setting or environment in which the
natural functions of the floodplain can again operate.
Structures means walled or roofed buildings, including mobile homes
and gas or liquid storage tanks.
Substantial Improvement means any repair, reconstruction or other
improvement of a structure or facility, which has been damaged in excess
of, or the cost of which equals or exceeds, 50% of the market value of
the structure or replacement cost of the facility (including all
``public facilities'' as defined in the Disaster Relief Act of 1974) (a)
before the repair or improvement is started, or (b) if the structure or
facility has been damaged and is proposed to be restored, before the
damage occurred. If a facility is an essential link in a larger system,
the percentage of damage will be based on the relative cost of repairing
the damaged facility to the replacement cost of the portion of the
system which is operationally dependent on the facility. The term
``substantial improvement'' does not include any alteration of a
structure or facility listed on the National Register of Historic Places
or a State Inventory of Historic Places.
Support means to encourage, allow, serve or otherwise facilitate
floodplain or wetland development. Direct support results from actions
within a floodplain or wetland, and indirect support results from
actions outside of floodplains or wetlands.
Wetlands means those areas which are inundated or saturated by
surface or ground water with a frequency sufficient to support, or that
under normal hydrologic conditions does or would support, a prevalence
of vegetation or
[[Page 71]]
aquatic life typically adapted for life in saturated or seasonally
saturated soil conditions. Examples of wetlands include, but are not
limited to, swamps, fresh and salt water marshes, estuaries, bogs,
beaches, wet meadows, sloughs, potholes, mud flats, river overflows and
other similar areas. This definition includes those wetlands areas
separated from their natural supply of water as a result of activities
such as the construction of structural flood protection methods or
solid-fill road beds and activities such as mineral extraction and
navigation improvements. This definition is intended to be consistent
with the definition utilized by the U.S. Fish and Wildlife Service in
the publication entitled Classification of Wetlands and Deep Water
Habitats of the United States (Cowardin, et al., 1977).
[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982;
50 FR 40006, Oct. 1, 1985; 74 FR 15335, Apr. 3, 2009]
Sec. 9.5 Scope.
(a) Applicability. (1) These regulations apply to all Agency actions
which have the potential to affect floodplains or wetlands or their
occupants, or which are subject to potential harm by location in
floodplains or wetlands.
(2) The basic test of the potential of an action to affect
floodplains or wetlands is the action's potential (both by itself and
when viewed cumulatively with other proposed actions) to result in the
long- or short-term adverse impacts associated with:
(i) The occupancy or modification of floodplains, and the direct and
indirect support of floodplain development; or
(ii) The destruction or modification of wetlands and the direct or
indirect support of new construction in wetlands.
(3) This regulation applies to actions that were, on the effective
date of the Orders (May 24, 1977), ongoing, in the planning and/or
development stages, or undergoing implementation, and are incomplete as
of the effective date of these regulations. The regulation also applies
to proposed (new) actions. The Agency shall:
(i) Determine the applicable provisions of the Orders by analyzing
whether the action in question has progressed beyond critical stages in
the floodplain management and wetlands protection decision-making
process, as set out below in Sec. 9.6. This determination need only be
made at the time that followup actions are being taken to complete or
implement the action in question; and
(ii) Apply the provisions of the Orders and of this regulation to
all such actions to the fullest extent practicable.
(b) Limited exemption of ongoing actions involving wetlands located
outside the floodplains. (1) Executive Order 11990, Protection of
Wetlands, contains a limited exemption not found in Executive Order
11988, Floodplain Management. Therefore, this exemption applies only to
actions affecting wetlands which are located outside the floodplains,
and which have no potential to result in harm to or within floodplains
or to support floodplain development.
(2) The following proposed actions that impact wetlands located
outside of floodplains are exempt from this regulation:
(i) Agency-assisted or permitted projects which were under
construction before May 24, 1977; and
(ii) Projects for which the Agency has proposed a draft of a final
environmental impact statement (EIS) which adequately analyzes the
action and which was filed before October 1, 1977. Proposed actions that
impact wetlands outside of floodplains are not exempt if the EIS:
(A) Only generally covers the proposed action;
(B) Is devoted largely to related activities; or
(C) Treats the project area or program without an adequate and
specific analysis of the floodplain and wetland implications of the
proposed action.
(c) Decision-making involving certain categories of actions. The
provisions set forth in this regulation are not applicable to the
actions enumerated below except that the Regional Administrators shall
comply with the spirit of the Order to the extent practicable. For any
action which is excluded from the actions enumerated below, the full 8-
step process applies (see Sec. 9.6) (except as indicated at paragraphs
(d), (f) and
[[Page 72]]
(g) of this section regarding other categories of partial or total
exclusions). The provisions of these regulations do not apply to the
following (all references are to the Disaster Relief Act of 1974, Pub.
L. 93-288, as amended, except as noted):
(1) Assistance provided for emergency work essential to save lives
and protect property and public health and safety performed pursuant to
sections 305 and 306;
(2) Emergency Support Teams (section 304);
(3) Unemployment Assistance (section 407);
(4) Emergency Communications (section 415);
(5) Emergency Public Transportation (section 416);
(6) Fire Management Assistance (Section 420);
(7) Community Disaster Loans (section 414), except to the extent
that the proceeds of the loan will be used for repair of facilities or
structures or for construction of additional facilities or structures;
(8) The following Individual and Family Grant Program (section 408)
actions:
(i) Housing needs or expenses, except for restoring, repairing or
building private bridges, purchase of mobile homes and provision of
structures as minimum protective measures;
(ii) Personal property needs or expenses;
(iii) Transportation expenses;
(iv) Medical/dental expenses;
(v) Funeral expenses;
(vi) Limited home repairs;
(vii) Flood insurance premium;
(viii) Cost estimates;
(ix) Food expenses; and
(x) Temporary rental accommodations.
(9) Mortgage and rental assistance under section 404(b);
(10) Use of existing resources in the temporary housing assistance
program [section 404(a)], except that Step 1 (Sec. 9.7) shall be carried
out;
(11) Minimal home repairs [section 404(c)];
(12) Debris removal (section 403), except those grants involving
non-emergency disposal of debris within a floodplain or wetland;
(13) Repairs or replacements under section 402, of less than $5,000
to damaged structures or facilities.
(14) Placement of families in existing resources and Temporary
Relocation Assistance provided to those families so placed under the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, Public Law 96-510.
(d) For each action enumerated below, the Regional Administrator
shall apply steps 1, 2, 4, 5 and 8 of the decision-making process
(Secs. 9.7, 9.8, 9.10 and 9.11, see Sec. 9.6). Steps 3 and 6 (Sec. 9.9)
shall be carried out except that alternative sites outside the
floodplain or wetland need not be considered. After assessing impacts of
the proposed action on the floodplain or wetlands and of the site on the
proposed action, alternative actions to the proposed action, if any, and
the ``no action'' alternative shall be considered. The Regional
Administrator may also require certain other portions of the decision-
making process to be carried out for individual actions as is deemed
necessary. For any action which is excluded from the actions listed
below. (except as indicated in paragraphs (c), (f) and (g) of this
section regarding other categories of partial or total exclusion), the
full 8-step process applies (see Sec. 9.6). The references are to the
Disaster Relief Act of 1974, Public Law 93-288, as amended.
(1) Actions performed under the Individual and Family Grant Program
(section 408) for restoring or repairing a private bridge, except where
two or more individuals or families are authorized to pool their grants
for this purpose.
(2) Small project grants (section 419), except to the extent that
Federal funding involved is used for construction of new facilities or
structures.
(3) Replacement of building contents, materials and equipment.
(sections 402 and 419).
(4) Repairs under section 402 to damaged facilities or structures,
except any such action for which one or more of the following is
applicable:
(i) FEMA estimated cost of repairs is more than 50% of the estimated
reconstruction cost of the entire facility or structure, or is more than
$100,000, or
[[Page 73]]
(ii) The action is located in a floodway or coastal high hazard
area, or
(iii) The facility or structure is one which has previously
sustained structural damage from flooding due to a major disaster or
emergency or on which a flood insurance claim has been paid, or
(iv) The action is a critical action.
(e) Other categories of actions. Based upon the completion of the 8-
step decision-making process (Sec. 9.6), the Director may find that a
specific category of actions either offers no potential for carrying out
the purposes of the Orders and shall be treated as those actions listed
in Sec. 9.5(c), or has no practicable alternative sites and shall be
treated as those actions listed in Sec. 9.5(d), or has no practicable
alternative actions or sites and shall be treated as those actions
listed in Sec. 9.5(g). This finding will be made in consultation with
the Federal Insurance Administration and the Council on Environmental
Quality as provided in section 2(d) of E.O. 11988. Public notice of each
of these determinations shall include publication in the Federal
Register and a 30-day comment period.
(f) The National Flood Insurance Program (NFIP). (1) Most of what is
done by FIA or the Mitigation Directorate, in administering the National
Flood Insurance Program is performed on a program-wide basis. For all
regulations, procedures or other issuances making or amending program
policy, FIA or the Mitigation Directorate, shall apply the 8-step
decision-making process to that program-wide action. The action to which
the 8-step process must be applied is the establishment of programmatic
standards or criteria, not the application of programmatic standards or
criteria to specific situations. Thus, for example, FIA or the
Mitigation Directorate, would apply the 8-step process to a programmatic
determination of categories of structures to be insured, but not to
whether to insure each individual structure. The two prime examples of
where FIA or the Mitigation Directorate, does take site specific actions
which would require individual application of the 8-step process are
property acquisition under section 1362 of the National Flood Insurance
Act of 1968, as amended, and the issuance of an exception to a community
under 44 CFR 60.6(b). (See also Sec. 9.9(e)(6) and Sec. 9.11(e).)
(2) The provisions set forth in this regulation are not applicable
to the actions enumerated below except that the Federal Insurance
Administrator or the Assistant Administrator for Mitigation, as
appropriate shall comply with the spirit of the Orders to the extent
practicable:
(i) The issuance of individual flood insurance policies and policy
interpretations;
(ii) The adjustment of claims made under the Standard Flood
Insurance Policy;
(iii) The hiring of independent contractors to assist in the
implementation of the National Flood Insurance Program;
(iv) The issuance of individual flood insurance maps, Map
Information Facility map determinations, and map amendments; and
(v) The conferring of eligibility for emergency or regular program
(NFIP) benefits upon communities.
(g) For the action listed below, the Regional Administrator shall
apply steps 1, 4, 5 and 8 of the decision-making process (Secs. 9.7,
9.10 and 9.11). For any action which is excluded from the actions listed
below, (except as indicated in paragraphs (c), (d) and (f) of this
section regarding other categories of partial or total exclusion), the
full 8-step process applies (See Sec. 9.6). The Regional Administrator
may also require certain other portions of the decision-making process
to be carried out for individual actions as is deemed necessary. The
references are to the Disaster Relief Act of 1974, Public Law 93-288.
The above requirements apply to repairs, under section 402, between
$5,000 and $25,000 to damaged structures of facilities except for:
(1) Actions in a floodway or coastal high hazard area; or
(2) New or substantially improved structures or facilities; or
(3) Facilities or structures which have previously sustained
structural
[[Page 74]]
damage from flooding due to a major disaster or emergency.
[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982;
49 FR 35583, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 39531,
Oct. 29, 1986; 66 FR 57347, Nov. 14, 2001]
Sec. 9.6 Decision-making process.
(a) Purpose. The purpose of this section is to set out the
floodplain management and wetlands protection decision-making process to
be followed by the Agency in applying the Orders to its actions. While
the decision-making process was initially designed to address the
floodplain Order's requirements, the process will also satisfy the
wetlands Order's provisions due to the close similarity of the two
directives. The numbering of Steps 1 through 8 does not firmly require
that the steps be followed sequentially. As information is gathered
throughout the decision-making process and as additional information is
needed, reevaluation of lower numbered steps may be necessary.
(b) Except as otherwise provided in Sec. 9.5 (c), (d), (f), and (g)
regarding categories of partial or total exclusion when proposing an
action, the Agency shall apply the 8-step decision-making process. FEMA
shall:
Step 1. Determine whether the proposed action is located in a
wetland and/or the 100-year floodplain (500-year floodplain for critical
actions); and whether it has the potential to affect or be affected by a
floodplain or wetland (see Sec. 9.7);
Step 2. Notify the public at the earliest possible time of the
intent to carry out an action in a floodplain or wetland, and involve
the affected and interested public in the decision-making process (see
Sec. 9.8);
Step 3. Identify and evaluate practicable alternatives to locating
the proposed action in a floodplain or wetland (including alternative
sites, actions and the ``no action'' option) (see Sec. 9.9). If a
practicable alternative exists outside the floodplain or wetland FEMA
must locate the action at the alternative site.
Step 4. Identify the potential direct and indirect impacts
associated with the occupancy or modification of floodplains and
wetlands and the potential direct and indirect support of floodplain and
wetland development that could result from the proposed action (see
Sec. 9.10);
Step 5. Minimize the potential adverse impacts and support to or
within floodplains and wetlands to be identified under Step 4, restore
and preserve the natural and beneficial values served by floodplains,
and preserve and enhance the natural and beneficial values served by
wetlands (see Sec. 9.11);
Step 6. Reevaluate the proposed action to determine first, if it is
still practicable in light of its exposure to flood hazards, the extent
to which it will aggravate the hazards to others, and its potential to
disrupt floodplain and wetland values and second, if alternatives
preliminarily rejected at Step 3 are practicable in light of the
information gained in Steps 4 and 5. FEMA shall not act in a floodplain
or wetland unless it is the only practicable location (see Sec. 9.9);
Step 7. Prepare and provide the public with a finding and public
explanation of any final decision that the floodplain or wetland is the
only practicable alternative (see Sec. 9.12); and
Step 8. Review the implementation and post-implementation phases of
the proposed action to ensure that the requirements stated in Sec. 9.11
are fully implemented. Oversight responsibility shall be integrated into
existing processes.
[45 FR 59526, Sept. 9, 1980, as amended at 49 FR 35583, Sept. 10, 1984;
50 FR 40006, Oct. 1, 1985]
Sec. 9.7 Determination of proposed action's location.
(a) The purpose of this section is to establish Agency procedures
for determining whether any action as proposed is located in or affects
(1) the base floodplain (the Agency shall substitute the 500-year
floodplain for the base floodplain where the action being proposed
involves a critical action), or (2) a wetland.
(b) Information needed. The Agency shall obtain enough information
so that it can fulfill the requirements of the Orders to (1) avoid
floodplain and wetland locations unless they are the only practicable
alternatives; and (2) minimize harm to and within
[[Page 75]]
floodplains and wetlands. In all cases, FEMA shall determine whether the
proposed action is located in a floodplain or wetland. In the absence of
a finding to the contrary, FEMA may assume that a proposed action
involving a facility or structure that has been flooded is in the
floodplain. Information about the 100-year and 500-year floods and
location of floodways and coastal high hazard areas may also be needed
to comply with these regulations, especially Sec. 9.11. The following
additional flooding characteristics shall be identified by the Regional
Administrator as appropriate:
(i) Velocity of floodwater;
(ii) Rate of rise of floodwater;
(iii) Duration of flooding;
(iv) Available warning and evacuation time and routes;
(v) Special problems:
(A) Levees;
(B) Erosion;
(C) Subsidence;
(D) Sink holes;
(E) Ice jams;
(F) Debris load;
(G) Pollutants;
(H) Wave heights;
(I) Groundwater flooding;
(J) Mudflow.
(c) Floodplain determination. (1) In the search for flood hazard
information, FEMA shall follow the sequence below:
(i) The Regional Administrator shall consult the FEMA Flood
Insurance Rate Map (FIRM) the Flood Boundary Floodway Map (FBFM) and the
Flood Insurance Study (FIS).
(ii) If a detailed map (FIRM or FBFM) is not available, the Regional
Administrator shall consult an FEMA Flood Hazard Boundary Map (FHBM) .
If data on flood elevations, floodways, or coastal high hazard areas are
needed, or if the map does not delineate the flood hazard boundaries in
the vicinity of the proposed site, the Regional Administrator shall seek
the necessary detailed information and assistance from the sources
listed below.
Sources of Maps and Technical Information
Department of Agriculture: Soil Conservation Service
Department of the Army: Corps of Engineers
Department of Commerce: National Oceanic and Atmospheric Administration
Federal Insurance Administration
FEMA Regional Offices/Natural and Technological Hazards Division
Department of the Interior:
Geological Survey
Bureau of Land Management
Bureau of Reclamation
Tennessee Valley Authority
Delaware River Basin Commission
Susquehanna River Basin Commission
States
(iii) If the sources listed do not have or know of the information
necessary to comply with the Orders' requirements, the Regional
Administrator shall seek the services of a Federal or other engineer
experienced in this type of work.
(2) If a decision involves an area or location within extensive
Federal or state holdings or a headwater area, and an FIS, FIRM, FBFM,
or FHBM is not available, the Regional Administrator shall seek
information from the land administering agency before information and/or
assistance is sought from the sources listed in this section. If none of
these sources has information or can provide assistance, the services of
an experienced Federal or other engineer shall be sought as described
above.
(d) Wetland determination. The following sequence shall be followed
by the Agency in making the wetland determination.
(1) The Agency shall consult with the U.S. Fish and Wildlife Service
(FWS) for information concerning the location, scale and type of
wetlands within the area which could be affected by the proposed action.
(2) If the FWS does not have adequate information upon which to base
the determination, the Agency shall consult wetland inventories
maintained by the Army Corps of Engineers, the Environmental Protection
Agency, various states, communities and others.
(3) If state or other sources do not have adequate information upon
which to base the determination, the Agency shall carry out an on-site
analysis performed by a representative of the FWS or other qualified
individual for wetlands characteristics based on the performance
definition of what constitutes a wetland.
(4) If an action is in a wetland but not in a floodplain, and the
action is
[[Page 76]]
new construction, the provisions of this regulation shall apply. Even if
the action is not in a wetland, the Regional Administrator shall
determine if the action has the potential to result in indirect impacts
on wetlands. If so, all adverse impacts shall be minimized. For actions
which are in a wetland and the floodplain, completion of the decision-
making process is required. (See Sec. 9.6.) In such a case the wetland
will be considered as one of the natural and beneficial values of
floodplain.
[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982;
49 FR 33879, Aug. 27, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 34605,
Sept. 30, 1986]
Sec. 9.8 Public notice requirements.
(a) Purpose. The purpose of this section is to establish the initial
notice procedures to be followed when proposing any action in or
affecting floodplains or wetlands.
(b) General. The Agency shall provide adequate information to enable
the public to have impact on the decision outcome for all actions having
potential to affect, adversely, or be affected by floodplains or
wetlands that it proposes. To achieve this objective, the Agency shall:
(1) Provide the public with adequate information and opportunity for
review and comment at the earliest possible time and throughout the
decision-making process; and upon completion of this process, provide
the public with an accounting of its final decisions (see Sec. 9.12);
and
(2) Rely on its environmental assessment processes, to the extent
possible, as vehicles for public notice, involvement and explanation.
(c) Early public notice. The Agency shall provide opportunity for
public involvement in the decision-making process through the provision
of public notice upon determining that the proposed action can be
expected to affect or be affected by floodplains or wetlands. Whenever
possible, notice shall precede major project site identification and
analysis in order to preclude the foreclosure of options consistent with
the Orders.
(1) For an action for which an environmental impact statement is
being prepared, the Notice of Intent to File an EIS is adequate to
constitute the early public notice, if it includes the information
required under paragraph (c)(5) of this section.
(2) For each action having national significance for which notice is
being provided, the Agency shall use the Federal Register as the minimum
means for notice, and shall provide notice by mail to national
organizations reasonably expected to be interested in the action. The
additional notices listed in paragraph (c)(4) of this section shall be
used in accordance with the determination made under paragraph (c)(3) of
this section.
(3) The Agency shall base its determination of appropriate notices,
adequate comment periods, and whether to issue cumulative notices
(paragraphs (c)(4), (6) and (7) of this section) on factors which
include, but are not limited to:
(i) Scale of the action;
(ii) Potential for controversy;
(iii) Degree of public need;
(iv) Number of affected agencies and individuals; and
(v) Its anticipated potential impact.
(4) For each action having primarily local importance for which
notice is being provided, notice shall be made in accordance with the
criteria under paragraph (c)(3) of this section, and shall entail as
appropriate:
(i) [Reserved]
(ii) Notice to Indian tribes when effects may occur on reservations.
(iii) Information required in the affected State's public notice
procedures for comparable actions.
(iv) Publication in local newspapers (in papers of general
circulation rather than legal papers).
(v) Notice through other local media.
(vi) Notice to potentially interested community organizations.
(vii) Publication in newsletters that may be expected to reach
potentially interested persons.
(viii) Direct mailing to owners and occupants of nearby or affected
property.
(ix) Posting of notice on and off site in the area where the action
is to be located.
(x) Holding a public hearing.
(5) The notice shall include:
[[Page 77]]
(i) A description of the action, its purpose and a statement of the
intent to carry out an action affecting or affected by a floodplain or
wetland;
(ii) Based on the factors in paragraph (c)(3) of this section, a map
of the area or other indentification of the floodplain and/or wetland
areas which is of adequate scale and detail so that the location is
discernible; instead of publication of such map, FEMA may state that
such map is available for public inspection, including the location at
which such map may be inspected and a telephone number to call for
information;
(iii) Based on the factors in paragraph (c)(3) of this section, a
description of the type, extent and degree of hazard involved and the
floodplain or wetland values present; and
(iv) Identification of the responsible official or organization for
implementing the proposed action, and from whom further information can
be obtained.
(6) The Agency shall provide for an adequate comment period.
(7) In a post-disaster situation in particular, the requirement for
early public notice may be met in a cumulative manner based on the
factors set out in paragraph (c)(3) of this section. Several actions may
be addressed in one notice or series of notices. For some actions
involving limited public interest a single notice in a local newspaper
or letter to interested parties may suffice.
(d) Continuing public notice. The Agency shall keep the public
informed of the progress of the decision-making process through
additional public notices at key points in the process. The preliminary
information provided under paragraph (c)(5) of this section shall be
augmented by the findings of the adverse effects of the proposed actions
and steps necessary to mitigate them. This responsibility shall be
performed for actions requiring the preparation of an EIS, and all other
actions having the potential for major adverse impacts, or the potential
for harm to the health and safety of the general public.
[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983]
Sec. 9.9 Analysis and reevaluation of practicable alternatives.
(a) Purpose. (1) The purpose of this section is to expand upon the
directives set out in Sec. 9.6, of this part, in order to clarify and
emphasize the Orders' key requirements to avoid floodplains and wetlands
unless there is no practicable alternative.
(2) Step 3 is a preliminary determination as to whether the
floodplain is the only practicable location for the action. It is a
preliminary determination because it comes early in the decision-making
process when the Agency has a limited amount of information. If it is
clear that there is a practicable alternative, or the floodplain or
wetland is itself not a practicable location, FEMA shall then act on
that basis. Provided that the location outside the floodplain or wetland
does not indirectly impact floodplains or wetlands or support
development therein (see Sec. 9.10), the remaining analysis set out by
this regulation is not required. If such location does indirectly impact
floodplains or wetlands or support development therein, the remaining
analysis set out by this regulation is required. If the preliminary
determination is to act in the floodplain, FEMA shall gather the
additional information required under Steps 4 and 5 and then reevaluate
all the data to determine if the floodplain or wetland is the only
practicable alternative.
(b) Analysis of practicable alternatives. The Agency shall identify
and evaluate practicable alternatives to carrying out a proposed action
in floodplains or wetlands, including:
(1) Alternative sites outside the floodplain or wetland;
(2) Alternative actions which serve essentially the same purpose as
the proposed action, but which have less potential to affect or be
affected by the floodplain or wetlands; and
(3) No action. The floodplain and wetland site itself must be a
practicable location in light of the factors set out in this section.
(c) The Agency shall analyze the following factors in determining
the practicability of the alternatives set out in paragraph (b) of this
section:
(1) Natural environment (topography, habitat, hazards, etc.);
[[Page 78]]
(2) Social concerns (aesthetics, historical and cultural values,
land patterns, etc.);
(3) Economic aspects (costs of space, construction, services, and
relocation); and
(4) Legal constraints (deeds, leases, etc.).
(d) Action following the analysis of practicable alternatives. (1)
The Agency shall not locate the proposed action in the floodplain or in
a wetland if a practicable alternative exists outside the floodplain or
wetland.
(2) For critical actions, the Agency shall not locate the proposed
action in the 500-year floodplain if a practicable alternative exists
outside the 500-year floodplain.
(3) Even if no practicable alternative exists outside the floodplain
or wetland, in order to carry out the action the floodplain or wetland
must itself be a practicable location in light of the review required in
this section.
(e) Reevaluation of alternatives. Upon determination of the impact
of the proposed action to or within the floodplain or wetland and of
what measures are necessary to comply with the requirement to minimize
harm to and within floodplains and wetlands (Sec. 9.11), FEMA shall:
(1) Determine whether:
(i) The action is still practicable at a floodplain or wetland site
in light of the exposure to flood risk and the ensuing disruption of
natural values;
(ii) The floodplain or wetland site is the only practicable
alternative;
(iii) There is a potential for limiting the action to increase the
practicability of previously rejected non-floodplain or wetland sites
and alternative actions; and
(iv) Minimization of harm to or within the floodplain can be
achieved using all practicable means.
(2) Take no action in a floodplain unless the importance of the
floodplain site clearly outweighs the requirement of E.O. 11988 to:
(i) Avoid direct or indirect support of floodplain development;
(ii) Reduce the risk of flood loss;
(iii) Minimize the impact of floods on human safety, health and
welfare; and
(iv) Restore and preserve floodplain values.
(3) Take no action in a wetland unless the importance of the wetland
site clearly outweighs the requirements of E.O. 11990 to:
(i) Avoid the destruction or modification of the wetlands;
(ii) Avoid direct or indirect support of new construction in
wetlands;
(iii) Minimize the destruction, loss or degradation of wetlands; and
(iv) Preserve and enhance the natural and beneficial values of
wetlands.
(4) In carrying out this balancing process, give the factors in
paragraphs (e)(2) and (3) of this section, the great weight intended by
the Orders.
(5) Choose the ``no action'' alternative where there are no
practicable alternative actions or sites and where the floodplain or
wetland is not itself a practicable alternative. In making the
assessment of whether a floodplain or wetland location is itself a
practicable alternative, the practicability of the floodplain or wetland
location shall be balanced against the practicability of not carrying
out the action at all. That is, even if there is no practicable
alternative outside of the floodplain or wetland, the floodplain or
wetland itself must be a practicable location in order for the action to
be carried out there. To be a practicable location, the importance of
carrying out the action must clearly outweigh the requirements of the
Orders listed in paragraphs (e)(2) and (e)(3) of this section. Unless
the importance of carrying out the action clearly outweighs those
requirements, the ``no action'' alternative shall be selected.
(6) In any case in which the Regional Director has selected the ``no
action'' option, FIA may not provide a new or renewed contract of flood
insurance for that structure.
Effective Date Note: At 45 FR 79070, Nov. 28, 1980, Sec. 9.9(e)(6)
was temporarily suspended until further notice.
Sec. 9.10 Identify impacts of proposed actions.
(a) Purpose. The purpose of this section is to ensure that the
effects of proposed Agency actions are identified.
(b) The Agency shall identify the potential direct and indirect
adverse impacts associated with the occupancy and modification of
floodplains and
[[Page 79]]
wetlands and the potential direct and indirect support of floodplain and
wetland development that could result from the proposed action. Such
identification of impacts shall be to the extent necessary to comply
with the requirements of the Orders to avoid floodplain and wetland
locations unless they are the only practicable alternatives and to
minimize harm to and within floodplains and wetlands.
(c) This identification shall consider whether the proposed action
will result in an increase in the useful life of any structure or
facility in question, maintain the investment at risk and exposure of
lives to the flood hazard or forego an opportunity to restore the
natural and beneficial values served by floodplains or wetlands.
Regional Offices of the U.S. Fish and Wildlife Service may be contacted
to aid in the identification and evaluation of potential impacts of the
proposed action on natural and beneficial floodplain and wetland values.
(d) In the review of a proposed or alternative action, the Regional
Administrator shall specifically consider and evaluate: impacts
associated with modification of wetlands and floodplains regardless of
its location; additional impacts which may occur when certain types of
actions may support subsequent action which have additional impacts of
their own; adverse impacts of the proposed actions on lives and property
and on natural and beneficial floodplain and wetland values; and the
three categories of factors listed below:
(1) Flood hazard-related factors. These include for example, the
factors listed in Sec. 9.7(b)(2);
(2) Natural values-related factors. These include, for example, the
following: Water resource values (natural moderation of floods, water
quality maintenance, and ground water recharge); living resource values
(fish and wildlife and biological productivity); cultural resource
values (archeological and historic sites, and open space recreation and
green belts); and agricultural, aquacultural and forestry resource
values.
(3) Factors relevant to a proposed action's effects on the survival
and quality of wetlands. These include, for example, the following:
Public health, safety, and welfare, including water supply, quality,
recharge and discharge; pollution; flood and storm hazards; and sediment
and erosion; maintenance of natural systems, including conservation and
long term productivity of existing flora and fauna, species and habitat
diversity and stability, hydrologic utility, fish, wildlife, timber, and
food and fiber resources; and other uses of wetlands in the public
interest, including recreational, scientific, and cultural uses.
Sec. 9.11 Mitigation.
(a) Purpose. The purpose of this section is to expand upon the
directives set out in Sec. 9.6 of this part, and to set out the
mitigative actions required if the preliminary determination is made to
carry out an action that affects or is in a floodplain or wetland.
(b) General provisions. (1) The Agency shall design or modify its
actions so as to minimize harm to or within the floodplain;
(2) The Agency shall minimize the destruction, loss or degradation
of wetlands;
(3) The Agency shall restore and preserve natural and beneficial
floodplain values; and
(4) The Agency shall preserve and enhance natural and beneficial
wetland values.
(c) Minimization provisions. The Agency shall minimize:
(1) Potential harm to lives and the investment at risk from the base
flood, or, in the case of critical actions, from the 500-year flood;
(2) Potential adverse impacts the action may have on others; and
(3) Potential adverse impact the action may have on floodplain and
wetland values.
(d) Minimization Standards. In its implementation of the Disaster
Relief Act of 1974, the Agency shall apply at a minimum, the following
standards to its actions to comply with the requirements of paragraphs
(b) and (c), of this section, (except as provided in Sec. 9.5 (c), (d),
and (g) regarding categories of partial or total exclusion). Any Agency
action to which the following specific requirements do not apply, shall
nevertheless be subject to the full 8-step
[[Page 80]]
process (Sec. 9.6) including the general requirement to minimize harm to
and within floodplains:
(1) There shall be no new construction or substantial improvement in
a floodway, and no new construction in a coastal high hazard area,
except for:
(i) A functionally dependent use; or
(ii) A structure or facility which facilitates an open space use.
(2) For a structure which is a functionally dependent use, or which
facilitates an open space use, the following applies. There shall be no
construction of a new or substantially improved structure in a coastal
high hazard area unless it is elevated on adequately anchored pilings or
columns, and securely anchored to such piles or columns so that the
lowest portion of the structural members of the lowest floor (excluding
the pilings or columns) is elevated to or above the base flood level
(the 500-year flood level for critical actions) (including wave height).
The structure shall be anchored so as to withstand velocity waters and
hurricane wave wash. The Regional Administrator shall be responsible for
determining the base flood level, including the wave height, in all
cases. Where there is a FIRM in effect, it shall be the basis of the
Regional Administrator's determination. If the FIRM does not reflect
wave heights, or if there is no FIRM in effect, the Regional
Administrator is responsible for delineating the base flood level,
including wave heights.
(3) Elevation of structures. (i) There shall be no new construction
or substantial improvement of structures unless the lowest floor of the
structures (including basement) is at or above the level of the base
flood.
(ii) There shall be no new construction or substantial improvement
of structures involving a critical action unless the lowest floor of the
structure (including the basement) is at or above the level of the 500-
year flood.
(iii) If the subject structure is nonresidential, FEMA may, instead
of elevating the structure to the 100-year or 500-year level, as
appropriate, approve the design of the structure and its attendant
utility and sanitary facilities so that below the flood level the
structure is water tight with walls substantially impermeable to the
passage of water and with structural components having the capability of
resisting hydrostatic and hydrodynamic loads and effects of buoyancy.
(iv) The provisions of paragraphs (d)(3)(i), (ii), and (iii) of this
section do not apply to the extent that the Federal Insurance
Administration has granted an exception under 44 CFR Sec. 60.6(b)
(formerly 24 CFR 1910.6(b)), or the community has granted a variance
which the Regional Administrator determines is consistent with 44 CFR
60.6(a) (formerly 24 CFR 1910.6(a)). In a community which does not have
a FIRM in effect, FEMA may approve a variance from the standards of
paragraphs (d)(3)(i), (ii), and (iii) of this section, after compliance
with the standards of 44 CFR 60.6(a).
(4) There shall be no encroachments, including fill, new
construction, substantial improvements of structures or facilities, or
other development within a designated regulatory floodway that would
result in any increase in flood levels within the community during the
occurrence of the base flood discharge. Until a regulatory floodway is
designated, no new construction, substantial improvements, or other
development (including fill) shall be permitted within the base
floodplain unless it is demonstrated that the cumulative effect of the
proposed development, when combined with all other existing and
anticipated development, will not increase the water surface elevation
of the base flood more than one foot at any point within the community.
(5) Even if an action is a functionally dependent use or facilitates
open space uses (under paragraph (d) (1) or (2) of this section) and
does not increase flood heights (under paragraph (d)(4) of this
section), such action may only be taken in a floodway or coastal high
hazard area if:
(i) Such site is the only practicable alternative; and
(ii) Harm to and within the floodplain is minimized.
(6) In addition to standards (d)(1) through (d)(5) of this section,
no action may be taken if it is inconsistent with the criteria of the
National Flood Insurance Program (44 CFR part 59 et
[[Page 81]]
seq.) or any more restrictive Federal, State or local floodplain
management standards.
(7) New construction and substantial improvement of structures shall
be elevated on open works (walls, columns, piers, piles, etc.) rather
than on fill, in all cases in coastal high hazard areas and elsewhere,
where practicable.
(8) To minimize the effect of floods on human health, safety and
welfare, the Agency shall:
(i) Where appropriate, integrate all of its proposed actions in
floodplains into existing flood warning and preparedness plans and
ensure that available flood warning time is reflected;
(ii) Facilitate adequate access and egress to and from the site of
the proposed action; and
(iii) Give special consideration to the unique hazard potential in
flash flood, rapid-rise or tsunami areas.
(9) In the replacement of building contents, materials and
equipment, the Regional Administrator shall require as appropriate,
disaster proofing of the building and/or elimination of such future
losses by relocation of those building contents, materials and equipment
outside or above the base floodplain or the 500-year floodplain for
critical actions.
(e) In the implementation of the National Flood Insurance Program.
(1) The Federal Insurance Administration shall make identification of
all coastal high hazard areas a priority;
(2) Beginning October 1, 1981, the Federal Insurance Administration
of FEMA may only provide flood insurance for new construction or
substantial improvements in a coastal high hazard area if:
(i) Wave heights have been designated for the site of the structure
either by the Administrator of FEMA based upon data generated by FEMA or
by another source, satisfactory to the Administrator; and
(ii) The structure is rated by FEMA-FIA based on a system which
reflects the capacity to withstand the effects of the 100-year frequency
flood including, but not limited to, the following factors:
(A) Wave heights;
(B) The ability of the structure to withstand the force of waves.
(3)(i) FEMA shall accept and take fully into account information
submitted by a property owner indicating that the rate for a particular
structure is too high based on the ability of the structure to withstand
the force of waves. In order to obtain a rate adjustment, a property
owner must submit to FEMA specific information regarding the structure
and its immediate environment. Such information must be certified by a
registered professional architect or engineer who has demonstrable
experience and competence in the fields of foundation, soils, and
structural engineering. Such information should include:
(A) Elevation of the structure (bottom of lowest floor beam) in
relation to the Base Flood Elevation including wave height;
(B) Distance of the structure from the shoreline;
(C) Dune protection and other environmental factors;
(D) Description of the building support system; and
(E) Other relevant building details.
Adequate completion of the ``V-Zone Risk Factor Rating Form'' is
sufficient for FEMA to determine whether a rate adjustment is
appropriate. The form is available from and applications for rate
adjustments should be submitted to:
National Flood Insurance Program
Attention: V-Zone Underwriting Specialist
9901-A George Palmer Highway
Lanham, MD 20706
Pending a determination on a rate adjustment, insurance will be issued
at the class rate. If the rate adjustment is granted, a refund of the
appropriate portion of the premium will be made. Unless a property owner
is seeking an adjustment of the rate prescribed by FEMA-FIA, this
information need not be submitted.
(ii) FIA shall notify communities with coastal high hazard areas and
federally related lenders in such communities, of the provisions of this
paragraph. Notice to the lenders may be accomplished by the Federal
instrumentalities to which the lenders are related.
(4) In any case in which the Regional Director has been, pursuant to
[[Page 82]]
Sec. 9.11(d)(1), precluded from providing assistance for a new or
substantially improved structure in a floodway, FIA may not provide a
new or renewed policy of flood insurance for that structure.
(f) Restore and preserve. (1) For any action taken by the Agency
which affects the floodplain or wetland and which has resulted in, or
will result in, harm to the floodplain or wetland, the Agency shall act
to restore and preserve the natural and beneficial values served by
floodplains and wetlands.
(2) Where floodplain or wetland values have been degraded by the
proposed action, the Agency shall identify, evaluate and implement
measures to restore the values.
(3) If an action will result in harm to or within the floodplain or
wetland, the Agency shall design or modify the action to preserve as
much of the natural and beneficial floodplain and wetland values as is
possible.
[45 FR 59526, Sept. 9, 1980, as amended at 46 FR 51752, Oct. 22, 1981;
48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984; 49 FR 35584,
Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985]
Effective Date Note: At 45 FR 79070, Nov. 28, 1980, Sec. 9.11(e)(4)
was temporarily suspended until further notice.
Sec. 9.12 Final public notice.
If the Agency decides to take an action in or affecting a floodplain
or wetland, it shall provide the public with a statement of its final
decision and shall explain the relevant factors considered by the Agency
in making this determination.
(a) In addition, those sent notices under Sec. 9.8 shall also be
provided the final notice.
(b) For actions for which an environmental impact statement is being
prepared, the FEIS is adequate to constitute final notice in all cases
except where:
(1) Significant modifications are made in the FEIS after its initial
publication;
(2) Significant modifications are made in the development plan for
the proposed action; or
(3) Significant new information becomes available in the interim
between issuance of the FEIS and implementation of the proposed action.
If any of these situations develop, the Agency shall prepare a separate
final notice that contains the contents of paragraph (e) of this section
and shall make it available to those who received the FEIS. A minimum of
15 days shall, without good cause shown, be allowed for comment on the
final notice.
(c) For actions for which an environmental assessment was prepared,
the Notice of No Significant Impact is adequate to constitute final
public notice, if it includes the information required under paragraph
(e) of this section.
(d) For all other actions, the finding shall be made in a document
separate from those described in paragraphs (a), (b), and (c) of this
section. Based on an assessment of the following factors, the
requirement for final notice may be met in a cumulative manner:
(1) Scale of the action;
(2) Potential for controversy;
(3) Degree of public need;
(4) Number of affected agencies and individuals;
(5) Its anticipated potential impact; and
(6) Similarity of the actions, i.e., to the extent that they are
susceptible of common descriptions and assessments.
When a damaged structure or facility is already being repaired by the
State or local government at the time of the Damage Survey Report, the
requirements of Steps 2 and 7 (Secs. 9.8 and 9.12) may be met by a
single notice. Such notice shall contain all the information required by
both sections.
(e) The final notice shall include the following:
(1) A statement of why the proposed action must be located in an
area affecting or affected by a floodplain or a wetland;
(2) A description of all significant facts considered in making this
determination;
(3) A list of the alternatives considered;
(4) A statement indicating whether the action conforms to applicable
state and local floodplain protection standards;
(5) A statement indicating how the action affects or is affected by
the floodplain and/or wetland, and how mitigation is to be achieved;
[[Page 83]]
(6) Identification of the responsible official or organization for
implementation and monitoring of the proposed action, and from whom
further information can be obtained; and
(7) A map of the area or a statement that such map is available for
public inspection, including the location at which such map may be
inspected and a telephone number to call for information.
(f) After providing the final notice, the Agency shall, without good
cause shown, wait at least 15 days before carrying out the action.
[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983]
Sec. 9.13 Particular types of temporary housing.
(a) The purpose of this section is to set forth the procedures
whereby the Agency will provide certain specified types of temporary
housing.
(b) Prior to providing the types of temporary housing enumerated in
paragraph (c) of this section, the Agency shall comply with the
provisions of this section. For all temporary housing not enumerated
below, the full 8-step process (see Sec. 9.6) applies.
(c) The following temporary housing actions are subject to the
provisions of this section and not the full 8-step process:
(1) [Reserved]
(2) Placing a mobile home or readily fabricated dwelling on a
private or commercial site, but not a group site.
(d) The actions set out in paragraph (c) of this section are subject
to the following decision-making process:
(1) The temporary housing action shall be evaluated in accordance
with the provisions of Sec. 9.7 to determine if it is in or affects a
floodplain or wetland.
(2) No mobile home or readily fabricated dwelling may be placed on a
private or commercial site in a floodway or coastal high hazard area.
(3) An individual or family shall not be housed in a floodplain or
wetland unless the Regional Administrator has complied with the
provisions of Sec. 9.9 to determine that such site is the only
practicable alternative. The following factors shall be substituted for
the factors in Sec. 9.9 (c) and (e) (2) through (4):
(i) Speedy provision of temporary housing;
(ii) Potential flood risk to the temporary housing occupant;
(iii) Cost effectiveness;
(iv) Social and neighborhood patterns;
(v) Timely availability of other housing resources; and
(vi) Potential harm to the floodplain or wetland.
(4) An individual or family shall not be housed in a floodplain or
wetland (except in existing resources) unless the Regional Administrator
has complied with the provisions of Sec. 9.11 to minimize harm to and
within floodplains and wetlands. The following provisions shall be
substituted for the provisions of Sec. 9.11(d) for mobile homes:
(i) No mobile home or readily fabricated dwelling may be placed on a
private or commercial site unless it is elevated to the fullest extent
practicable up to the base flood level and adequately anchored.
(ii) No mobile home or readily fabricated dwelling may be placed if
such placement is inconsistent with the criteria of the National Flood
Insurance Program (44 CFR part 59 et seq.) or any more restrictive
Federal, State or local floodplain management standard. Such standards
may require elevation to the base flood level in the absence of a
variance.
(iii) Mobile homes shall be elevated on open works (walls, columns,
piers, piles, etc.) rather than on fill where practicable.
(iv) To minimize the effect of floods on human health, safety and
welfare, the Agency shall:
(A) Where appropriate, integrate all of its proposed actions in
placing mobile homes for temporary housing in floodplains into existing
flood warning and preparedness plans and ensure that available flood
warning time is reflected;
(B) Provide adequate access and egress to and from the proposed site
of the mobile home; and
(C) Give special consideration to the unique hazard potential in
flash flood and rapid-rise areas.
(5) FEMA shall comply with Step 2 Early Public Notice (Sec. 9.8(c))
and Step 7
[[Page 84]]
Final Public Notice (Sec. 9.12). In providing these notices, the
emergency nature of temporary housing shall be taken into account.
(e) FEMA shall not sell or otherwise dispose of mobile homes or
other readily fabricated dwellings which would be located in floodways
or coastal high hazard areas. FEMA shall not sell or otherwise dispose
of mobile homes or other readily fabricated dwellings which would be
located in floodplains or wetlands unless there is full compliance with
the 8-step process. Given the vulnerability of mobile homes to flooding,
a rejection of a non-floodplain location alternative and of the no-
action alternative shall be based on (1) a compelling need of the family
or individual to buy a mobile home for permanent housing, and (2) a
compelling requirement to locate the unit in a floodplain. Further, FEMA
shall not sell or otherwise dispose of mobile homes or other readily
fabricated dwellings in a floodplain unless they are elevated at least
to the level of the 100-year flood. The Regional Administrator shall
notify the Assistant Administrator for Mitigation of each instance where
a floodplain location has been found to be the only practicable
alternative for a mobile home sale.
[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982;
49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985]
Sec. 9.14 Disposal of Agency property.
(a) The purpose of this section is to set forth the procedures
whereby the Agency shall dispose of property.
(b) Prior to its disposal by sale, lease or other means of disposal,
property proposed to be disposed of by the Agency shall be reviewed
according to the decision-making process set out in Sec. 9.6 of this
part, as follows:
(1) The property shall be evaluated in accordance with the
provisions of Sec. 9.7 to determine if it affects or is affected by a
floodplain or wetland;
(2) The public shall be notified of the proposal and involved in the
decision-making process in accordance with the provisions of Sec. 9.8;
(3) Practicable alternatives to disposal shall be evaluated in
accordance with the provisions of Sec. 9.9. For disposals, this
evaluation shall focus on alternative actions (conveyance for an
alternative use that is more consistent with the floodplain management
and wetland protection policies set out in Sec. 9.2 than the one
proposed, e.g., open space use for park or recreational purposes rather
than high intensity uses), and on the ``no action'' option (retain the
property);
(4) Identify the potential impacts and support associated with the
disposal of the property in accordance with Sec. 9.10;
(5) Identify the steps necessary to minimize, restore, preserve and
enhance in accordance with Sec. 9.11. For disposals, this analysis shall
address all four of these components of mitigation where unimproved
property is involved, but shall focus on minimization through
floodproofing and restoration of natural values where improved property
is involved;
(6) Reevaluate the proposal to dispose of the property in light of
its exposure to the flood hazard and its natural values-related impacts,
in accordance with Sec. 9.9. This analysis shall focus on whether it is
practicable in light of the findings from Secs. 9.10 and 9.11 to dispose
of the property, or whether it must be retained. If it is determined
that it is practicable to dispose of the property, this analysis shall
identify the practicable alternative that best achieves all of the
components of the Orders' mitigation responsibility;
(7) To the extent that it would decrease the flood hazard to lives
and property, the Agency shall, wherever practicable, dispose of the
properties according to the following priorities:
(i) Properties located outside the floodplain;
(ii) Properties located in the flood fringe; and
(iii) Properties located in a floodway, regulatory floodway or
coastal high hazard area.
(8) The Agency shall prepare and provide the public with a finding
and public explanation in accordance with Sec. 9.12.
(9) The Agency shall ensure that the applicable mitigation
requirements are fully implemented in accordance with Sec. 9.11.
(c) At the time of disposal, for all disposed property, the Agency
shall reference in the conveyance uses that are
[[Page 85]]
restricted under existing Federal, State and local floodplain management
and wetland protection standards relating to flood hazards and
floodplain and wetland values.
Sec. 9.15 Planning programs affecting land use.
The Agency shall take floodplain management into account when
formulating or evaluating any water and land use plans. No plan may be
approved unless it:
(a) Reflects consideration of flood hazards and floodplain
management and wetlands protection; and
(b) Prescribes planning procedures to implement the policies and
requirements of the Orders and this regulation.
Sec. 9.16 Guidance for applicants.
(a) The Agency shall encourage and provide adequate guidance to
applicants for agency assistance to evaluate the effects of their plans
and proposals in or affecting floodplains and wetlands.
(b) This shall be accomplished primarily through amendment of all
Agency instructions to applicants, e.g., program handbooks, contracts,
application and agreement forms, etc., and also through contact made by
agency staff during the normal course of their activities, to fully
inform prospective applicants of:
(1) The Agency's policy on floodplain management and wetlands
protection as set out in Sec. 9.2;
(2) The decision-making process to be used by the Agency in making
the determination of whether to provide the required assistance as set
out in Sec. 9.6;
(3) The nature of the Orders' practicability analysis as set out in
Sec. 9.9;
(4) The nature of the Orders' mitigation responsibilities as set out
in Sec. 9.11;
(5) The nature of the Orders' public notice and involvement process
as set out in Secs. 9.8 and 9.12; and
(6) The supplemental requirements applicable to applications for the
lease or other disposal of Agency owned properties set out in Sec. 9.14.
(c) Guidance to applicants shall be provided where possible, prior
to the time of application in order to minimize potential delays in
process application due to failure of applicants to recognize and
reflect the provisions of the Orders and this regulation.
Sec. 9.17 Instructions to applicants.
(a) Purpose. In accordance with Executive Orders 11988 and 11990,
the Federal executive agencies must respond to a number of floodplain
management and wetland protection responsibilities before carrying out
any of their activities, including the provision of Federal financial
and technical assistance. The purpose of this section is to put
applicants for Agency assistance on notice concerning both the criteria
that it is required to follow under the Orders, and applicants'
responsibilities under this regulation.
(b) Responsibilities of Applicants. Based upon the guidance provided
by the Agency under Sec. 9.16, that guidance included in the U.S. Water
Resources Council's Guidance for Implementing E.O. 11988, and based upon
the provisions of the Orders and this regulation, applicants for Agency
assistance shall recognize and reflect in their application:
(1) The Agency's policy on floodplain management and wetlands
protection as set out in Sec. 9.2;
(2) The decision-making process to be used by the Agency in making
the determination of whether to provide the requested assistance as set
out in Sec. 9.6;
(3) The nature of the Orders' practicability analysis as set out in
Sec. 9.9;
(4) The nature of the Orders' mitigation responsibilities as set out
in Sec. 9.11;
(5) The nature of the Orders' public and involvement process as set
out in Secs. 9.8 and 9.12; and
(6) The supplemental requirements for application for the lease or
other disposal of Agency-owned properties, as set out in Sec. 9.13.
(c) Provision of supporting information. Applicants for Agency
assistance may be called upon to provide supporting information relative
to the various responsibilities set out in paragraph (b) of this section
as a prerequisite to the approval of their applications.
(d) Approval of applications. Applications for Agency assistance
shall be reviewed for the recognition and reflection of the provisions
of this regulation
[[Page 86]]
in addition to the Agency's existing approval criteria.
Sec. 9.18 Responsibilities.
(a) Regional Administrators' responsibilities. Regional
Administrators shall, for all actions falling within their respective
jurisdictions:
(1) Implement the requirements of the Orders and this regulation.
Anywhere in Secs. 9.2, 9.6 through 9.13, and 9.15 where a direction is
given to the Agency, it is the responsibility of the Regional
Administrator.
(2) Consult with the Chief Counsel regarding any question of
interpretation concerning this regulation or the Orders.
(b) The Heads of the Offices, Directorates and Administrations of
FEMA shall:
(1) Implement the requirements of the Orders and this regulation.
When a decision of a Regional Administrator relating to disaster
assistance is appealed, the Assistant Administrator for Mitigation may
make determinations under these regulations on behalf of the Agency.
(2) Prepare and submit to the Office of Chief Counsel reports to the
Office of Management and Budget in accordance with section 2(b) of E.O.
11988 and section 3 of E.O. 11990. If a proposed action is to be located
in a floodplain or wetland, any requests to the Office of Management and
Budget for new authorizations or appropriations shall be accompanied by
a report indicating whether the proposed action is in accord with the
Orders and these regulations.
[45 FR 59526, Sept. 9, 1980, as amended at 49 FR 33879, Aug. 27, 1984;
74 FR 15336, Apr. 3, 2009]
[[Page 87]]
Sec. Appendix A to Part 9--Decision-making Process for E.O. 11988
[GRAPHIC] [TIFF OMITTED] TC02FE91.074
PART 10 [RESERVED]
PART 11_CLAIMS--Table of Contents
Subpart A_General
Sec.
11.1 General collection standards.
11.2 Delegations of authority.
Subpart B_Administrative Claims Under Federal Tort Claims Act
11.10 Scope of regulation.
11.11 Administrative claim; when presented; appropriate FEMA office.
11.12 Administrative claim; who may file.
11.13 Investigations.
11.14 Administrative claim; evidence and information to be submitted.
11.15 Authority to adjust, determine, compromise and settle.
11.16 Limitations on authority.
11.17 Referral to Department of Justice.
11.18 Final denial of claim.
11.19 Action on approved claim.
Subpart C [Reserved]
Subpart D_Personnel Claims Regulations
11.70 Scope and purpose.
11.71 Claimants.
11.72 Time limitations.
11.73 Allowable claims.
11.74 Claims not allowed.
11.75 Claims involving carriers and insurers.
11.76 Claims procedures.
11.77 Settlement of claims.
11.78 Computation of amount of award.
11.79 Attorney's fees.
Authority: 31 U.S.C. 3701 et seq.
Source: 45 FR 15930, Mar. 12, 1980, unless otherwise noted.
[[Page 88]]
Subpart A_General
Sec. 11.1 General collection standards.
The general standards and procedures governing the collection,
compromise, termination and referral to the Department of Justice of
claims for money and property that are prescribed in the regulations
issued jointly by the Government Accountability Office and the
Department of Justice pursuant to the Federal Claims Collection Act of
1966 (4 CFR part 101 et seq.), apply to the administrative claim
collection activities of the Federal Emergency Management Agency (FEMA).
Sec. 11.2 Delegations of authority.
Any and all claims that arise under subchapter III of chapter 83,
chapter 87 and chapter 88 of title 5, the United States Code, the
Retired Federal Employees Health Benefits Act (74 Stat. 849), the Panama
Canal Construction Annuity Act (58 Stat. 257), and the Lighthouse
Service Widow's Annuity Act (64 Stat. 465) shall be referred to the
Director of the Bureau of Retirement and Insurance, Office of Personnel
Management, for handling. The Chief Counsel, FEMA shall act on all other
claims against FEMA for money and property.
Subpart B_Administrative Claims Under Federal Tort Claims Act
Sec. 11.10 Scope of regulation.
This regulation applies to claims asserted under the Federal Tort
Claims Act against the Federal Emergency Management Agency (FEMA). It
does not include any contractor with FEMA.
Sec. 11.11 Administrative claim; when presented; appropriate FEMA office.
(a) For the purpose of this part, and the provisions of the Federal
Tort Claims Act a claim is deemed to have been presented when FEMA
receives, at a place designated in paragraph (b) or (c) of this section,
an executed ``Claim for Damage or Injury,'' Standard Form 95, or other
written notification of an incident, accompanied by a claim for money
damages in a sum certain for injury to or loss of property, for personal
injury, or for death alleged to have occurred by reason of the incident.
A claim which should have been presented to FEMA, but which was
mistakenly addressed to or filed with another Federal agency, is deemed
to be presented to FEMA as of the date that the claim is received by
FEMA. If a claim is mistakenly addressed to or filed with FEMA, the
claim shall forthwith be transferred to the appropriate Federal Agency,
if ascertainable, or returned to the claimant.
(b) Except as provided in paragraph (c) of this section, a claimant
shall mail or deliver his or her claim to the Office of Chief Counsel,
Federal Emergency Management Agency, Washington, DC, 20472.
(c) When a claim is for $200 or less, does not involve a personal
injury, and involves a FEMA regional employee, the claimant shall mail
or deliver the claim to the Administrator of the FEMA Regional Office in
which is employed the FEMA employee whose negligence or wrongful act or
omission is alleged to have caused the loss or injury complained of. The
addresses of the Regional Offices of FEMA are set out in part 2 of this
chapter.
(d) A claim presented in compliance with paragraph (a) of this
section may be amended by the claimant at any time prior to final FEMA
action or prior to the exercise of the claimant's option under 28 U.S.C.
2675(a). Amendments shall be submitted in writing and signed by the
claimant or his or her duly authorized agent or legal representative.
Upon the timely filing of an amendment to a pending claim, FEMA shall
have six months in which to make a final disposition of the claim as
amended and the claimant's option under 28 U.S.C. 2675(a) shall not
accrue until six months after the filing of an amendment.
[45 FR 15930, Mar. 12, 1980, as amended at 48 FR 6711, Feb. 15, 1983; 49
FR 33879, Aug. 27, 1984]
Sec. 11.12 Administrative claim; who may file.
(a) A claim for injury to or loss of property may be presented by
the owner of the property interest which is
[[Page 89]]
the subject of the claim, his or her authorized agent, or legal
representative.
(b) A claim for personal injury may be presented by the injured
person or, his or her authorized agent or legal representative.
(c) A claim based on death may be presented by the executor or
administrator of the decedent's estate or by any other person legally
entitled to assert such a claim under applicable State law.
(d) A claim for loss wholly compensated by an insurer with the
rights of a subrogee may be presented by the insurer or the insured
individually, as their respective interests appear, or jointly. When an
insurer presents a claim asserting the rights of a subrogee, he or she
shall present with the claim appropriate evidence that he or she has the
rights of a subrogee.
(e) A claim presented by an agent or legal representative shall be
presented in the name of the claimant, be signed by the agent or legal
representative, show the title of legal capacity of the person signing,
and be accompanied by evidence of his or her authority to present a
claim on behalf of the claimant as agent, executor, administrator,
parent, guardian, or other representative.
Sec. 11.13 Investigations.
FEMA may investigate, or may request any other Federal agency to
investigate, a claim filed under this part.
Sec. 11.14 Administrative claim; evidence and information to be
submitted.
(a) Death. In support of a claim based on death the claimant may be
required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Decedent's employment or occupation at time of death, including
his or her monthly or yearly salary or earnings (if any), and the
duration of his or her last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of the decedent's survivors, including identification of those survivors
who were dependent for support on the decedent at the time of his or her
death.
(4) Degree of support afforded by the decedent to each survivor
dependent on him or her for support at the time of death.
(5) Decedent's general physical and mental condition before death.
(6) Itemized bills or medical and burial expenses incurred by reason
of the incident causing death, or itemized receipts of payment for such
expenses.
(7) If damages for pain and suffering before death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and the
decedent's physical condition in the interval between injury and death.
(8) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
amount of damages claimed.
(b) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit the
following evidence or information:
(1) A written report by his or her attending physician or dentist
setting forth the nature and extent of the injury, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity. In addition, the claimant may be required to submit to a
physical or mental examination by a physician employed by FEMA or
another Federal agency. FEMA shall make available to the claimant a copy
of the report of the examining physician on written request by the
claimant, if he or she has, on request, furnished the report referred to
in the first sentence of this subparagraph and has made or agrees to
make available to FEMA any other physician's reports previously or
thereafter made of the physical or mental condition which is the subject
matter of the claim.
(2) Itemized bills for medical, dental, and hospital expenses
incurred, or itemized receipts of payment of such expenses.
(3) If the prognosis reveals the necessity for future treatment, a
statement
[[Page 90]]
of expected expenses for such treatment.
(4) If a claim is made for loss of time from employment, a written
statement from the employer showing actual time lost from employment,
whether he or she is a full- or part-time employee, and wages or salary
actually lost.
(5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually
lost.
(6) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
(c) Property damage. In support of a claim for injury to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information:
(1) Proof of ownership of the property interest which is the subject
of the claim.
(2) A detailed statement of the amount claimed with respect to each
item of property.
(3) An itemized receipt of payment for necessary repairs or itemized
written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price, and
salvage value, where repair is not economical.
(5) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the injury to or loss
of property or the damages claimed.
Sec. 11.15 Authority to adjust, determine, compromise and settle.
(a) The Chief Counsel of FEMA, or a designee of the Chief Counsel,
is delegated authority to consider, ascertain, adjust, determine,
compromise, and settle claims under the provisions of section 2672 of
title 28, United States Code, and this part.
(b) Notwithstanding the delegation of authority in paragraph (a) of
this section, a Regional Administrator is delegated authority to be
exercised in his or her discretion, to consider, ascertain, adjust,
determine, compromise, and settle under the provisions of section 2672
of title 28, United States Code, and this part, any claim for $200 or
less which is based on alleged negligence or wrongful act or omission of
an employee of the appropriate Region, except when:
(1) There are personal injuries to either Government personnel or
individuals not employed by the Government; or
(2) All damage to Government property or to property being used by
FEMA, or both, is more than $200, or all damage to non-Government
property being used by individuals not employed by the Government is
more than $200.
[45 FR 15930, Mar. 12, 1980, as amended at 48 FR 6711, Feb. 15, 1983]
Sec. 11.16 Limitations on authority.
(a) An award, compromise, or settlement of a claim under this part
in excess of $25,000 may be effected only with the advance written
approval of the Attorney General or his or her designee. For the purpose
of this paragraph, a principal claim and any derivative or subrogated
claim shall be treated as a single claim.
(b) An administrative claim may be adjusted, determined,
compromised, or settled under this part only after consultation with the
Department of Justice, when, in the opinion of the Chief Counsel of FEMA
or his or her designee:
(1) A new precedent or a new point of law is involved; or
(2) A question of policy is or may be involved; or
(3) The United States is or may be entitled to indemnity or
contribution from a third party and FEMA is unable to adjust the third
party claim; or
(4) The compromise of a particular claim, as a practical matter,
will or may control the disposition of a related claim in which the
amount to be paid may exceed $25,000.
(c) An administrative claim may be adjusted, determined, compromised
or settled under this part only after consultation with the Department
of Justice when FEMA is informed or is otherwise aware that the United
States or an employee, agent or cost-type contractor of the United
States is involved in litigation based on a claim arising out of the
same incident or transaction.
[[Page 91]]
Sec. 11.17 Referral to Department of Justice.
When Department of Justice approval or consultation is required
under Sec. 11.16, the referral or request shall be transmitted to the
Department of Justice by the Chief Counsel or his or her designee.
Sec. 11.18 Final denial of claim.
(a) Final denial of an administrative claim under this part shall be
in writing and sent to the claimant, his or her attorney, or legal
representative by certified or registered mail. The notification of
final denial may include a statement of the reasons for the denial and
shall include a statement that, if the claimant is dissatisfied with the
FEMA action, he or she may file suit in an appropriate U.S. District
Court not later than 6 months after the date of mailing of the
notification.
(b) Prior to the commencement of suit and prior to the expiration of
the 6-month period provided in 28 U.S.C. 2401(b), a claimant, his or her
duly authorized agent, or legal representative, may file a written
request with FEMA for reconsideration of a final denial of a claim under
paragraph (a) of this section. Upon the timely filing of a request for
reconsideration the FEMA shall have 6 months from the date of filing in
which to make a final FEMA disposition of the claim and the claimant's
option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the
filing of a request for reconsideration. Final FEMA action on a request
for reconsideration shall be effected in accordance with the provisions
of paragraph (a) of this section.
Sec. 11.19 Action on approved claim.
(a) Payment of a claim approved under this part is contingent on
claimant's execution of (1) a ``Claim for Damage or Injury,'' Standard
Form 95, or a claims settlement agreement, and (2) a ``Voucher for
Payment,'' Standard Form 1145, as appropriate. When a claimant is
represented by an attorney, the voucher for payment shall designate both
the claimant and his or her attorney as payees, and the check shall be
delivered to the attorney, whose address shall appear on the voucher.
(b) Acceptance by the claimant, his or her agent, or legal
representative, of an award, compromise, or settlement made under
section 2672 or 2677 of title 28, United States Code, is final and
conclusive on the claimant, his or her agent or legal representative,
and any other person on whose behalf or for whose benefit the claim has
been presented, and constitutes a complete release of any claim against
the United States and against any employee of the Government whose act
or omission gave rise to the claim, by reason of the same subject
matter.
Subpart C [Reserved]
Subpart D_Personnel Claims Regulations
Authority: 31 U.S.C. 3721.
Source: 50 FR 8112, Feb. 28, 1985, unless otherwise noted.
Sec. 11.70 Scope and purpose.
(a) The Administrator, Federal Emergency Management Agency (FEMA),
is authorized by 31 U.S.C. 3721 to settle and pay (including replacement
in kind) claims of officers and employees of FEMA, amounting to not more
than $25,000 for damage to or loss of personal property incident to
their service. Property may be replaced in-kind at the option of the
Government. Claims are payable only for such types, quantities, or
amounts of tangible personal property (including money) as the approving
authority shall determine to be reasonable, useful, or proper under the
circumstances existing at the time and place of the loss. In determining
what is reasonable, useful, or proper, the approving authority will
consider the type and quantity of property involved, circumstances
attending acquisition and use of the property, and whether possession or
use by the claimant at the time of damage or loss was incident to
service.
(b) The Government does not underwrite all personal property losses
that a claimant may sustain and it does not underwrite individual
tastes. While the Government does not attempt to limit possession of
property by an individual, payment for damage or loss is made
[[Page 92]]
only to the extent that the possession of the property is determined to
be reasonable, useful, or proper. If individuals possess excessive
quantities of items, or expensive items, they should have such property
privately insured. Failure of the claimant to comply with these
procedures may reduce or preclude payment of the claim under this
subpart.
Sec. 11.71 Claimants.
(a) A claim pursuant to this subpart may only be made by: (1) An
employee of FEMA; (2) a former employee of FEMA whose claim arises out
of an incident occurring before his/her separation from FEMA; (3)
survivors of a person named in paragraph (a) (1) or (2) of this section,
in the following order of precedence: (i) Spouse; (ii) children; (iii)
father or mother, or both or (iv) brothers or sisters, or both; (4) the
authorized agent or legal representative of a person named in paragraphs
(a) (1), (2), and (3) of this section.
(b) A claim may not be presented by or for the benefit of a
subrogee, assignee, conditional vendor, or other third party.
Sec. 11.72 Time limitations.
(a) A claim under this part may be allowed only if it is in writing,
specifies a sum certain and is received in the Office of Chief Counsel,
Federal Emergency Management Agency, Washington, DC 20472: (1) Within 2
years after it accrues; (2) or if it cannot be filed within the time
limits of paragraph (a)(1) of this section because it accrues in time of
war or in time of armed conflict in which any armed force of the United
States is engaged or if such a war or armed conflict intervenes within 2
years after the claim accrues, when the claimant shows good cause, the
claim may be filed within 2 years after the cause ceases to exist but
not more than 2 years after termination of the war or armed conflict.
(b) For purposes of this subpart, a claim accrues at the time of the
accident or incident causing the loss or damage, or at such time as the
loss or damage should have been discovered by the claimant by the
exercise of due diligence.
Sec. 11.73 Allowable claims.
(a) A claim may be allowed only if: (1) The damage or loss was not
caused wholly or partly by the negligent or wrongful act of the
claimant, his/her agent, the members of his/her family, or his/her
private employee (the standard to be applied is that of reasonable care
under the circumstances); and (2) the possession of the property lost or
damaged and the quantity possessed is determined to have been
reasonable, useful, or proper under the circumstances; and (3) the claim
is substantiated by proper and convincing evidence.
(b) Claims which are otherwise allowable under this subpart shall
not be disallowed solely because the property was not in the possession
of the claimant at the time of the damage or loss, or solely because the
claimant was not the legal owner of the property for which the claim is
made. For example, borrowed property may be the subject of a claim.
(c) Subject to the conditions in paragraph (a) of this section, and
the other provisions of this subpart, any claim for damage to, or loss
of, personal property incident to service with FEMA may be considered
and allowed. The following are examples of the principal types of claims
which may be allowed, unless excluded by Sec. 11.74.
(1) Property loss or damage in quarters or other authorized places.
Claims may be allowed for damage to, or loss of, property arising from
fire, flood, hurricane, other natural disaster, theft, or other unusual
occurrence, while such property is located at:
(i) Quarters within the 50 states or the District of Columbia that
were assigned to the claimant or otherwise provided in-kind by the
United States; or
(ii) Any warehouse, office, working area, or other place (except
quarters) authorized for the reception or storage of property.
(2) Transportation or travel losses. Claims may be allowed for
damage to, or loss of, property incident to transportation or storage
pursuant to orders, or in connection with travel under orders, including
property in the custody of a carrier, an agent or agency of the
Government, or the claimant.
[[Page 93]]
(3) Motor vehicles. Claims may be allowed for automobiles and other
motor vehicles damaged or lost by overseas shipments provided by the
Government. ``Shipments provided by the Government'' means via
Government vessels, charter of commercial vessels, or by Government
bills of lading on commercial vessels, and includes storage, unloading,
and offloading incident thereto. Other claims for damage to or loss of
automobiles and other major vehicles may be allowed when use of the
vehicles on a nonreimbursable basis was required by the claimant's
supervisor, but these claims shall be limited to a maximum of $1,000.00.
(4) Mobile homes. Claims may be allowed for damage to or loss of
mobile homes and their content under the provisions of paragraph (c)(2)
of this section. Claims for structural damage to mobile homes resulting
from such structural damage must contain conclusive evidence that the
damage was not caused by structural deficiency of the mobile home and
that it was not overloaded. Claims for damage to or loss of tires
mounted on mobile homes may be allowed only in cases of collision,
theft, or vandalism.
(5) Money. Claims for money in an amount that is determined to be
reasonable for the claimant to possess at the time of the loss are
payable:
(i) Where personal funds were accepted by responsible Government
personnel with apparent authority to receive them for safekeeping,
deposit, transmittal, or other authorized disposition, but were neither
applied as directed by the owner nor returned;
(ii) When lost incident to a marine or aircraft disaster;
(iii) When lost by fire, flood, hurricane, or other natural
disaster;
(iv) When stolen from the quarters of the claimant where it is
conclusively shown that the money was in a locked container and that the
quarters themselves were locked. Exceptions to the foregoing ``double
lock'' rule are permitted when the adjudicating authority determines
that the theft loss was not caused wholly or partly by the negligent or
wrongful act of the claimant, their agent, or their employee. The
adjudicating authority should use the test of whether the claimant did
their best under the circumstances to protect the property; or
(v) When taken by force from the claimant's person.
(6) Clothing. Claims may be allowed for clothing and accessories
customarily worn on the person which are damaged or lost:
(i) During the performance of official duties in an unusual or
extraordinary-risk situation;
(ii) In cases involving emergency action required by natural
disaster such as fire, flood, hurricane, or by enemy or other
belligerent action;
(iii) In cases involving faulty equipment or defective furniture
maintained by the Government and used by the claimant required by the
job situation; or
(iv) When using a motor vehicle.
(7) Property used for benefit of the Government. Claims may be
allowed for damage to or loss of property (except motor vehicles, see
Secs. 11.73(c)(3) and 11.74(b)(13)) used for the benefit of the
Government at the request of, or with the knowledge and consent of,
superior authority or by reason of necessity.
(8) Enemy action or public service. Claims may be allowed for damage
to or loss of property as a direct consequence of:
(i) Enemy action or threat thereof, or combat, guerrilla,
brigandage, or other belligerent activity, or unjust confiscation by a
foreign power or its nation:
(ii) Action by the claimant to quiet a civil disturbance or to
alleviate a public disaster; or
(iii) Efforts by the claimant to save human life or Government
property.
(9) Marine or aircraft disaster. Claims may be allowed for personal
property damaged or lost as a result of marine or aircraft disaster or
accident.
(10) Government property. Claims may be allowed for property owned
by the United States only when the claimant is financially responsible
to an agency of the Government other than FEMA.
(11) Borrowed property. Claims may be allowed for borrowed property
that has been damaged or lost.
(12)(i) A claim against the Government may be made for not more than
$40,000 by an officer or employee of the agency for damage to, or loss
of, personal property in a foreign country
[[Page 94]]
that was incurred incident to service, and--
(A) The officer, or employee was evacuated from the country on a
recommendation or order of the Secretary of State or other competent
authority that was made in responding to an incident of political unrest
or hostile act by people in that country; and the damage or loss
resulted from the evacuation, incident, or hostile act; or
(B) The damage or loss resulted from a hostile act directed against
the Government or its officers, or employees.
(ii) On paying the claim under this section, the Government is
subrogated for the amount of the payment to a right or claim that the
claimant may have against the foreign country for the damage or loss for
which the Government made the payment.
(iii) Amounts may be obligated or expended for claims under this
section only to the extent provided in advance in appropriation laws.
Sec. 11.74 Claims not allowed.
(a) A claim is not allowable if:
(1) The damage or loss was caused wholly or partly by the negligent
or wrongful act of the claimant, claimant's agent, claimant's employee,
or a member of claimant's family;
(2) The damage or loss occurred in quarters occupied by the claimant
within the 50 states and the District of Columbia that were not assigned
to the claimant or otherwise provided in-kind by the United States;
(3) Possession of the property lost or damaged was not incident to
service or not reasonable or proper under the circumstances.
(b) In addition to claims falling within the categories of paragraph
(a) of this section, the following are examples of claims which are not
payable:
(1) Claims not incident to service. Claims which arose during the
conduct of personal business are not payable.
(2) Subrogation claims. Claims based upon payment or other
consideration to a proper claimant are not payable.
(3) Assigned claims. Claims based upon assignment of a claim by a
proper claimant are not payable.
(4) Conditional vendor claims. Claims asserted by or on behalf of a
conditional vendor are not payable.
(5) Claims by improper claimants. Claims by persons not designated
in Sec. 11.71 are not payable.
(6) Articles of extraordinary value. Claims are not payable for
valuable or expensive articles, such as cameras, watches, jewelry, furs,
or other articles of extraordinary value, when shipped with household
goods or as unaccompanied baggage (shipment includes storage). This
prohibition does not apply to articles in the personal custody of the
claimant or articles properly checked, provided that reasonable
protection or security measures have been taken, by the claimant.
(7) Articles acquired for other persons. Claims are not payable for
articles intended directly or indirectly for persons other than the
claimant or members of the claimants' immediate household. This
prohibition includes articles acquired at the request of others and
articles for sale.
(8) Property used for business. Claims are not payable for property
normally used for business or profit.
(9) Unserviceable property. Claims are not payable for wornout or
unserviceable property.
(10) Violation of law or directive. Claims are not payable for
property acquired, possessed, or transported in violation of law,
regulation, or other directive. This does not apply to limitation
imposed on the weight of shipments of household goods.
(11) Intangible property. Claims are not payable for intangible
property such as bank books, checks, promissory notes, stock
certificates, bonds, bills of lading, warehouse receipts, baggage
checks, insurance policies, money orders, and traveler's checks.
(12) Government property. Claims are not payable for property owned
by the United States unless the claimant is financially responsible for
the property to an agency of the Government other than FEMA.
(13) Motor vehicles. Claims for motor vehicles, except as provided
for by Sec. 11.73(c)(3), will ordinarily not be paid. However, in
exceptional cases, meritorious claims for damage to or loss of motor
vehicles, limited to a maximum of $1,000.00, may be recommended to the
Office of Chief Counsel for consideration and approval for payment.
[[Page 95]]
(14) Enemy property. Claims are not payable for enemy property,
including war trophies.
(15) Losses recoverable from carrier, insurer or contractor. Claims
are not payable for losses, or any portion thereof, which have been
recovered or are recoverable from a carrier, insurer or under contract
except as permitted under Sec. 11.75.
(16) Fees for estimates. Claims are not normally payable for fees
paid to obtain estimates of repair in conjunction with submitting a
claim under this subpart. However, where, in the opinion of the
adjudicating authority, the claimant could not obtain an estimate
without paying a fee, such a claim may be considered in an amount
reasonable in relation to the value for the cost of repairs of the
articles involved, provided that the evidence furnished clearly
indicates that the amount of the fee paid will not be deducted from the
cost of repairs if the work is accomplished by the estimator.
(17) Items fraudulently claimed. Claims are not payable for items
fraudulently claimed. When investigation discloses that a claimant,
claimant's agent, claimant's employee, or member of claimant's family
has intentionally misrepresented an item claimed as to cost, condition,
costs to repair, etc., the item will be disallowed in its entirety even
though some actual damage has been sustained. However, if the remainder
of the claim is proper, it may be paid. This does not preclude
appropriate disciplinary action if warranted.
(18) Minimum amount. Loss or damage amounting to less than $10.
Sec. 11.75 Claims involving carriers and insurers.
In the event the property which is the subject of a claim was lost
or damaged while in the possession of a carrier or was insured, the
following procedures will apply:
(a) Whenever property is damaged, lost, or destroyed while being
shipped pursuant to authorized travel orders, the owner must file a
written claim for reimbursement with the last commercial carrier known
or believed to have handled the goods, or the carrier known to be in
possession of the property when the damage or loss occurred, according
to the terms of its bill of lading or contract, before submitting a
claim against the Government under this subpart.
(1) If more than one bill of lading or contract was issued, a
separate demand should be made against the last carrier on each such
document.
(2) The demand should be made within the time limit provided in the
policy and prior to the filing of a claim against the Government.
(3) If it is apparent that the damage or loss is attributable to
packing, storage, or unpacking while in the custody of the Government,
no demand need be made against the carrier.
(b) Whenever property which is damaged, lost, or destroyed incident
to the claimant's service is insured in whole or in part, the claimant
must make demand in writing against the insurer for reimbursement under
terms and conditions of the insurance coverage, prior to the filing of
the concurrent claim against the Government.
(c) Failure to make a demand on a carrier or insurer or to make all
reasonable efforts to protect and prosecute rights available against a
carrier or insurer and to collect the amount recoverable from the
carrier or insurer may result in reducing the amount recoverable from
the Government by the maximum amount which would have been recoverable
from the carrier or insurer, had the claim been timely or diligently
prosecuted. However, no deduction will be made where the circumstances
of the claimant's service preclude reasonable filing of such a claim or
diligent prosecution, or the evidence indicates a demand was
impracticable or would have been unavailing.
(d) Following the submission of the claim against the carrier or
insurer, the claimant may immediately submit a claim against the
Government in accordance with the provisions of this subpart, without
waiting until either final approval or denial of the claim is made by
the carrier or insurer.
(1) Upon submission of a claim to the Government, the claimant must
certify in the claim that no recovery (or the amount of recovery) has
been gained from a carrier or insurer, and enclose all correspondence
pertinent thereto.
[[Page 96]]
(2) If the carrier or insurer has not taken final action on the
claim against them, by the time the claimant submits a claim to the
Government, the claimant will immediately notify them to address all
correspondence in regard to the claim to him/her, in care of the Chief
Counsel of FEMA.
(3) The claimant shall timely advise the Chief Counsel in writing,
of any action which is taken by the carrier or insurer on the claim. On
request, the claimant also will furnish such evidence as may be required
to enable the United States to enforce the claim.
(e) When a claim is paid by FEMA, the claimant will assign to the
United States, to the extent of any payment on the claim accepted by
claimant, all rights, title, and interest in any claim against the
carrier, insurer, or other party arising out of the incident on which
the claim against the Government is based. After payment of the claim by
the Government, the claimant will, upon receipt of any payment from a
carrier or insurer, pay the proceeds to the United States to the extent
of the payment received by the claimant from the United States.
(f) When a claimant recovers for the loss from the carrier or
insurer before the claim against the Government under this subpart is
settled, the amount or recovery shall be applied to the claim as
follows:
(1) When the amount recovered from a carrier, insurer, or other
third party is greater than or equal to the claimant's total loss as
determined under this subpart, no compensation is allowable under this
subpart.
(2) When the amount recovered is less than such total loss, the
allowable amount is determined by deducting the recovery from the amount
of such total loss;
(3) For the purpose of this paragraph (f) the claimant's total loss
is to be determined without regard to the $25,000 maximum set forth
above. However, if the resulting amount, after making this deduction,
exceeds $25,000, the claimant will be allowed only $25,000.
Sec. 11.76 Claims procedures.
(a) Filing a claim. Applicants shall file claims in writing with the
Chief Counsel, Federal Emergency Management Agency, Washington, DC
20472. Each written claim shall contain, as a minimum:
(1) Name, address, and place of employment of the claimant;
(2) Place and date of the damage or loss:
(3) A brief statement of the facts and circumstances surrounding the
damage or loss;
(4) Cost, date, and place of acquisition of each price of property
damaged or lost;
(5) Two itemized repair estimates, or value estimates, whichever is
applicable;
(6) Copies of police reports, if applicable;
(7) A statement from the claimant's supervisor that the loss was
incident to service;
(8) A statement that the property was or was not insured;
(9) With respect to claims involving thefts or losses in quarters or
other places where the property was reasonably kept, a statement as to
what security precautions were taken to protect the property involved;
(10) With respect to claims involving property being used for the
benefit of the Government, a statement by the claimant's supervisor that
the claimant was required to provide such property or that the
claimant's providing it was in the interest of the Government; and
(11) Other evidence as may be required.
(b) Single claim. A single claim shall be presented for all lost or
damaged property resulting from the same incident. If this procedure
causes a hardship, the claimant may present an initial claim with notice
that it is a partial claim, an explanation of the circumstances causing
the hardship, and an estimate of the balance of the claim and the date
it will be submitted. Payment may be made on a partial claim if the
adjudicating authority determines that a genuine hardship exists.
(c) Loss in quarters. Claims for property loss in quarters or other
authorized places should be accompanied by a statement indicating:
(1) Geographical location;
[[Page 97]]
(2) Whether the quarters were assigned or provided in-kind by the
Government;
(3) Whether the quarters are regularly occupied by the claimant;
(4) Names of the authority, if any, who designated the place of
storage of the property if other than quarters;
(5) Measures taken to protect the property; and
(6) Whether the claimant is a local inhabitant.
(d) Loss by theft or robbery. Claims for property loss by theft or
robbery should be accompanied by a statement indicating:
(1) Geographical location;
(2) Facts and circumstances surrounding the loss, including evidence
of the crime such as breaking and entering, capture of the thief or
robber, or recovery of part of the stolen goods; and
(3) Evidence that the claimant exercised due care in protecting the
property prior to the loss, including information as to the degree of
care normally exercised in the locale of the loss due to any unusual
risks involved.
(e) Transportation losses. Claims for transportation losses should
be accompanied by the following:
(1) Copies of orders authorizing the travel, transportation, or
shipment or a certificate explaining the absence of orders and stating
their substance;
(2) Statement in cases where property was turned over to a shipping
officer, supply officer, or contract packer indicating:
(i) Name (or designation) and address of the shipping officer,
supply officer, or contract packer indicating;
(ii) Date the property was turned over;
(iii) Inventoried condition when the property was turned over;
(iv) When and where the property was packed and by whom;
(v) Date of shipment;
(vi) Copies of all bills of lading, inventories, and other
applicable shipping documents;
(vii) Date and place of delivery to the claimant;
(viii) Date the property was unpacked by the carrier, claimant, or
Government;
(ix) Statement of disinterested witnesses as to the condition of the
property when received and delivered, or as to handling or storage;
(x) Whether the negligence of any Government employee acting within
the scope of his/her employment caused the damage or loss;
(xi) Whether the last common carrier or local carrier was given a
clear receipt, except for concealed damages;
(xii) Total gross, tare, and new weight of shipment;
(xiii) Insurance certificate or policy if losses are privately
insured;
(xiv) Copy of the demand on carrier or insured, or both, when
required, and the reply, if any;
(xv) Action taken by the claimant to locate missing baggage or
household effects, including related correspondence.
(f) Marine or aircraft disaster. Claims for property losses due to
marine or aircraft disaster should be accompanied by a copy of orders or
other evidence to establish the claimant's right to be, or to have
property on board.
(g) Enemy action, public disaster, or public service. Claims for
property losses due to enemy action, public disaster, or public service
should be accompanied by:
(1) Copies of orders or other evidence establishing the claimant's
required presence in the area involved; and
(2) A detailed statement of facts and circumstances showing an
applicable case enumerated in Sec. 11.73(c)(8).
(h) Money. Claims for loss of money deposited for safekeeping,
transmittal, or other authorized disposition should be accompanied by:
(1) Name, grade, and address of the person or persons who received
money and any others involved;
(2) Name and designation of the authority who authorized such person
or persons to accept personal funds and the disposition required; and
(3) Receipts and written sworn statements explaining the failure to
account for funds or return them to the claimant.
(i) Motor vehicles or mobile homes in transit. Claims for damage to
motor vehicles or mobile homes in transit
[[Page 98]]
should be accompanied by a copy of orders or other available evidence to
establish the claimant's lawful right to have the property shipped and
evidence to establish damage in transit.
Sec. 11.77 Settlement of claims.
(a) The Chief Counsel, FEMA, is authorized to settle (consider,
ascertain, adjust, determine, and dispose of, whether by full or partial
allowance or disallowance) any claim under this subpart.
(b) The Chief Counsel may formulate such procedures and make such
redelegations as may be required to fulfill the objectives of this
subpart.
(c) The Chief Counsel shall conduct or request the Office of
Inspector General to conduct such investigation as may be appropriate in
order to determine the validity of a claim.
(d) The Chief Counsel shall notify a claimant in writing of action
taken on their claim, and if partial or full disallowance is made, the
reasons therefor.
(e) In the event a claim submitted against a carrier under
Sec. 11.75 has not been settled, before settlement of the claim against
the Government pursuant to this subpart, the Chief Counsel shall notify
such carrier or insurer to pay the proceeds of the claim to FEMA to the
extent FEMA has paid such to claimant in settlement.
(f) The settlement of a claim under this subpart, whether by full or
partial allowance or disallowance, is final and conclusive.
Sec. 11.78 Computation of amount of award.
(a) The amount allowed for damage to or loss of any items of
property may not exceed the cost of the item (either the price paid in
cash or property, or the value at the time of acquisition if not
acquired by purchase or exchange), and there will be no allowance for
replacement cost or for appreciation in the value of the property.
Subject to these limitations, the amount allowable is either:
(1) The depreciated value, immediately prior to the loss or damage,
of property lost or damaged beyond economical repair, less any salvage
value; or
(2) The reasonable cost or repairs, when property is economically
repairable, provided that the cost of repairs does not exceed the amount
allowable under paragraph (a)(1) of this section.
(b) Depreciation in value is determined by considering the type of
article involved, its costs, its conditions when damaged or lost, and
the time elapsed between the date of acquisition and the date of damage
or loss.
(c) Replacement of lost or damaged property may be made in-kind
whenever appropriate.
Sec. 11.79 Attorney's fees.
No more than 10 per centum of the amount paid in settlement of each
individual claim submitted and settled under this subpart shall be paid
or delivered to or received by any agent or attorney on account of
services rendered in connection with that claim. A person violating this
section shall be fined not more than $1,000.
[45 FR 15930, Mar. 12, 1980, as amended at 74 FR 15337, Apr. 3, 2009]
PARTS 12 14 [RESERVED]
PART 15_CONDUCT AT THE MT. WEATHER EMERGENCY ASSISTANCE CENTER AND
AT THE NATIONAL EMERGENCY TRAINING CENTER--Table of Contents
Sec.
15.1 Applicability.
15.2 Definitions.
15.3 Access to Mt. Weather.
15.4 Inspection.
15.5 Preservation of property.
15.6 Compliance with signs and directions.
15.7 Disturbances.
15.8 Gambling.
15.9 Alcoholic beverages and narcotics.
15.10 Soliciting, vending, and debt collection.
15.11 Distribution of handbills.
15.12 Photographs and other depictions.
15.13 Dogs and other animals.
15.14 Vehicular and pedestrian traffic.
15.15 Weapons and explosives.
15.16 Penalties.
15.17 Other laws.
Authority: Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR,
1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR,
1979 Comp., p. 376; E.O. 12148, 44 FR 13239, 3
[[Page 99]]
CFR, 1979 Comp., p. 412; Federal Fire Prevention and Control Act of
1974, 15 U.S.C. 2201 et seq.; delegation of authority from the
Administrator of General Services, dated July 18, 1979; Pub. L. 80-566,
approved June 1, 1948, 40 U.S.C. 318-318d; and the Federal Property and
Administrative Services Act of 1949, 40 U.S.C. 271 et seq.
Source: 64 FR 31137, June 10, 1999, unless otherwise noted.
Sec. 15.1 Applicability.
The rules and regulations in this part apply to all persons
entering, while on, or leaving all the property known as the Mt. Weather
Emergency Operations Center (Mt. Weather) located at 19844 Blue Ridge
Mountain Road, Bluemont, Virginia 20135, and all the property known as
the National Emergency Training Center (NETC), located on 16825 South
Seton Avenue in Emmitsburg, Maryland, which the Federal Emergency
Management Agency (FEMA) owns, operates and controls.
Sec. 15.2 Definitions.
Terms used in part 15 have these meanings:
Administrator means the Administrator of the Federal Emergency
Management Agency.
Assistant Administrator means the Assistant Administrator, United
States Fire Administration, FEMA.
FEMA means the Federal Emergency Management Agency.
Mt. Weather means the Mt. Weather Emergency Operations Center,
Bluemont, Virginia.
Mt. Weather Executive Director means the Executive Director of the
Mt. Weather Emergency Operations Center.
NETC means the National Emergency Training Center, Emmitsburg, MD.
We means the Federal Emergency Management Agency or FEMA.
[64 FR 31137, June 10, 1999, as amended at 74 FR 15338, Apr. 3, 2009]
Sec. 15.3 Access to Mt. Weather.
Mt. Weather contains classified material and areas that we must
protect in the interest of national security. The facility is a
restricted area. We deny access to Mt. Weather to the general public and
limit access to those persons having official business related to the
missions and operations of Mt. Weather. The Administrator or the Mt.
Weather Executive Director must approve all persons and vehicles
entering Mt. Weather. All persons must register with the Mt. Weather
Police/Security Force and must receive a Mt. Weather identification
badge and vehicle parking decal or permit to enter or remain on the
premises. No person will enter or remain on Mt. Weather premises unless
he or she has received permission from the Administrator or the Mt.
Weather Executive Director and has complied with these procedures.
Sec. 15.4 Inspection.
(a) In general. All vehicles, packages, handbags, briefcases, and
other containers being brought into, while on or being removed from Mt.
Weather or the NETC are subject to inspection by the Police/Security
Force and other authorized officials. A full search of a vehicle or
person may accompany an arrest.
(b) Inspection at Mt. Weather. We authorize inspection at Mt.
Weather to prevent the possession and use of items prohibited by these
rules and regulations or by other applicable laws, to prevent theft of
property and to prevent the wrongful obtaining of defense information
under 18 U.S.C. 793. If individuals object to such inspections they must
tell the officer on duty at the entrance gate before entering Mt.
Weather. The Police/Security Force and other authorized officials must
not authorize or allow individuals who refuse to permit an inspection of
their vehicle or possessions to enter the premises of Mt. Weather.
Sec. 15.5 Preservation of property.
At both Mt. Weather and NETC we prohibit:
(a) The improper disposal of rubbish;
(b) Willful destruction of or damage to property;
(c) Theft of property;
(d) Creation of any hazard on the property to persons or things;
(e) Throwing articles of any kind from or at a building;
(f) Climbing upon a fence; or
(g) Climbing upon the roof or any part of a building.
[[Page 100]]
Sec. 15.6 Compliance with signs and directions.
Persons at Mt. Weather and the NETC must comply at all times with
official signs that prohibit, regulate, or direct, and with the
directions of the Police/Security Force and other authorized officials.
Sec. 15.7 Disturbances.
At both Mt. Weather and NETC we prohibit any unwarranted loitering,
disorderly conduct, or other conduct at Mt. Weather and NETC that:
(a) Creates loud or unusual noise or a nuisance;
(b) Unreasonably obstructs the usual use of classrooms, dormitory
rooms, entrances, foyers, lobbies, corridors, offices, elevators,
stairways, roadways or parking lots;
(c) Otherwise impedes or disrupts the performance of official duties
by government employees or government contractors;
(d) Interferes with the delivery of educational or other programs;
or
(e) Prevents persons from obtaining in a timely manner the
administrative services provided at both facilities.