44 C.F.R. Subpart D—Described Records
Title 44 - Emergency Management and Assistance
(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 §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 §5.52 will not start until a request reasonably describing the records is received in the office of the appropriate official identified in §5.51. (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 §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 §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. (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 §5.20, §5.24, or §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 §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] 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 records may be inspected and copied as provided in §5.26. (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 Director (2) [Reserved] (3) Federal Insurance Administrator (4) Associate Directors (5) United States Fire Administrator (6) Chief of Staff (7) Office Directors (8) General Counsel (9) Inspector General (10) Comptroller (11) Regional Directors (b) If a request is denied, the appropriate official listed in paragraph (a) of this section shall except as provided in §5.56 advise the requestor within 10 workdays of receipt of the request by the official specified in §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 §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] (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 Director. (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 Director for final administrative determination. (e) The Deputy Director 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 Director made the initial denial, the Director will be the deciding official on any appeal from that denial. In the absence of the Deputy Director, or in case of a vacancy in that office, the Director may designate another FEMA official to perform the Deputy's functions. (f) If an appeal is filed in response to a tentative denial pending locating and/or examination of records, as described in §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 Director 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 §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 §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] In unusual circumstances as specified in this section, the time limits prescribed in §§5.52 and 5.55 may be extended by an official named in §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. (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 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 adminstrative 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 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] 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 §§5.52 and 5.55. [44 FR 50287, Aug. 27, 1979. Redesignated at 53 FR 2740, Feb. 1, 1988] Upon denial of a requestor's appeal by the Deputy Director 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] Pursuant to 5 U.S.C. 552(a)(4)(F), whenever the district court, described in §5.59 orders the production of any FEMA records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether FEMA personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel in the Merit Systems Protection Board is required to initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who primarily was responsible for the withholding. The Special Counsel after investigation and consideration of the evidence submitted, submits findings and recommendations to the Director of FEMA and sends copies of the findings and recommendations to the officer or employee or his or her representative. The law requires the Director to take any corrective action 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] In the event of noncompliance by FEMA with an order of a district court pursuant to §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]
Title 44: Emergency Management and Assistance
PART 5—PRODUCTION OR DISCLOSURE OF INFORMATION
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.
