[Title 44 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2024 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 44
Emergency Management and Assistance
Revised as of October 1, 2024
Containing a codification of documents of general
applicability and future effect
As of October 1, 2024
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 555
Finding Aids:
Table of CFR Titles and Chapters........................ 563
Alphabetical List of Agencies Appearing in the CFR...... 583
List of CFR Sections Affected........................... 593
[[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
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To determine whether a Code volume has been amended since its
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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
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Code a note has been inserted to reflect the future effective date. In
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 dropped in 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
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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.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
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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For inquiries concerning CFR reference assistance, call 202-741-6000
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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, 2024
[[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, 2024.
For this volume, Christine Colaninno 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
--------------------------------------------------------------------
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
--------------------------------------------------------------------
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......................... 9
3
[Reserved]
4 Intergovernmental review of Federal
Emergency Management Agency (FEMA)
programs and activities................. 9
5 Production or disclosure of information..... 13
6 Implementation of the Privacy Act of 1974... 15
7 Nondiscrimination in federally-assisted
programs (FEMA Reg. 5).................. 34
8
[Reserved]
9 Floodplain management and protection of
wetlands................................ 49
10
[Reserved]
11 Claims...................................... 68
12-14
[Reserved]
15 Conduct at the Mt. Weather Emergency
Assistance Center and at the National
Emergency Training Center............... 79
16 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Federal
Emergency Management Agency............. 83
17
[Reserved]
18 New restrictions on lobbying................ 89
19 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 101
20-24
[Reserved]
[[Page 4]]
25 Uniform relocation assistance and real
property acquisition for Federal and
federally assisted programs............. 117
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.......................... 118
60 Criteria for land management and use........ 133
61 Insurance coverage and rates................ 149
62 Sale of insurance and adjustment of claims.. 200
63 Implementation of section 1306(c) of the
National Flood Insurance Act of 1968.... 211
64 Communities eligible for the sale of
insurance............................... 216
65 Identification and mapping of special hazard
areas................................... 219
66 Consultation with local officials........... 235
67 Appeals from proposed flood elevation
determinations.......................... 237
68 Administrative hearing procedures........... 240
69
[Reserved]
70 Procedure for map correction................ 242
71 Implementation of coastal barrier
legislation............................. 245
72 Procedures and fees for processing map
changes................................. 248
73 Implementation of section 1316 of the
National Flood Insurance Act of 1968.... 251
74
[Reserved]
75 Exemption of State-owned properties under
self-insurance plan..................... 253
76
[Reserved]
77 Flood mitigation grants..................... 255
78-79
[Reserved]
80 Property acquisition and relocation for open
space................................... 261
81-149
[Reserved]
SUBCHAPTER C--FIRE PREVENTION AND CONTROL
150 Public safety awards to public safety
officers................................ 270
151 Reimbursement for costs of firefighting on
Federal property........................ 273
152 Assistance to firefighters grant program.... 278
[[Page 5]]
153-199
[Reserved]
SUBCHAPTER D--DISASTER ASSISTANCE
200
[Reserved]
201 Mitigation planning......................... 287
202-203
[Reserved]
204 Fire Management Assistance Grant Program.... 296
205
[Reserved]
206 Federal disaster assistance................. 307
207 Management costs............................ 405
208 National Urban Search and Rescue Response
System.................................. 410
209 Supplemental property acquisition and
elevation assistance.................... 426
210-294
[Reserved]
SUBCHAPTER E--FIRE ASSISTANCE
295 Cerro Grande fire assistance................ 434
296 Hermit's Peak/Calf Canyon fire assistance... 446
297-299
[Reserved]
SUBCHAPTER F--PREPAREDNESS
300 Disaster preparedness assistance............ 458
301
[Reserved]
302 Civil defense-State and local Emergency
Management Assistance Program (EMA)..... 459
303
[Reserved]
304 Consolidated grants to insular areas........ 468
305-311
[Reserved]
312 Use of civil defense personnel, materials,
and facilities for natural disaster
purposes................................ 469
313-320
[Reserved]
321 Maintenance of the mobilization base
(Department of Defense, Department of
Energy, Maritime Administration)........ 472
322
[Reserved]
323 Guidance on priority use of resources in
immediate post attack period (DMO-4).... 475
324-326
[Reserved]
327 Policy on use of Government-owned industrial
plant equipment by private industry
(DMO-10A)............................... 480
328
[Reserved]
329 Use of priorities and allocation authority
for Federal supply classification (FSC)
common use items (DMO-12)............... 482
[[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)............... 483
331 Preservation of the mobilization base
through the placement of procurement and
facilities in labor surplus areas....... 484
332 Voluntary agreements under section 708 of
the Defense Production Act of 1950, as
amended................................. 485
333 Emergency Management Priorities and
Allocations System...................... 489
334 Graduated mobilization response............. 506
335-349
[Reserved]
350 Review and approval of State and local
radiological emergency plans and
preparedness............................ 510
351 Radiological emergency planning and
preparedness............................ 520
352 Commercial nuclear power plants: emergency
preparedness planning................... 526
353 Fee for services in support, review and
approval of State and local government
or licensee radiological emergency plans
and preparedness........................ 532
354 Fee for services to support FEMA'S offsite
Radiological Emergency Preparedness
Program................................. 540
355-359
[Reserved]
360 State assistance programs for training and
education in comprehensive emergency
management.............................. 544
361 National earthquake hazards reduction
assistance to State and local
governments............................. 547
362 Criteria for acceptance of gifts, bequests,
or services............................. 552
363-399
[Reserved]
[[Page 7]]
SUBCHAPTER A_GENERAL
PART 0_GENERAL STATEMENTS OF POLICY [RESERVED]
PART 1_RULEMAKING, POLICY, AND PROCEDURES--Table of Contents
Sec.
1.1 Purpose and scope.
1.2 Definitions.
1.3 Regulatory policy.
1.4 Public rulemaking docket.
1.5 Public comments.
1.6 Ex parte communications.
1.7 Hearings.
1.8 Petitions for rulemaking.
1.9 Petitions for reconsideration.
Authority: 5 U.S.C. 551, 553; 6 U.S.C. 101 et seq.; Department of
Homeland Security Delegation 9001.1.
Source: 87 FR 11977, Mar. 3, 2022, unless otherwise noted.
Sec. 1.1 Purpose and scope.
(a) This part contains FEMA's procedures for informal rulemaking
under the Administrative Procedure Act (5 U.S.C. 553) that affect the
public.
(b) 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. 1.2 Definitions.
(a) Rule or regulation have the same meaning as those terms are
defined in the Administrative Procedure Act (5 U.S.C. 551(4)).
(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.
Sec. 1.3 Regulatory policy.
(a) It is the general 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.
(b) It is the general policy of FEMA that its notices of proposed
rulemaking are to afford the public at least 60 days for 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.
(c) The general policies contained in this section are not intended
to and do not create a right or benefit, substantive or procedural,
enforceable against the United States or its agencies or officers. FEMA
may depart from such policies in its absolute discretion, including for
its annual grant programs and in other cases as circumstances warrant.
Sec. 1.4 Public rulemaking docket.
(a) FEMA maintains a public docket for each rulemaking after it is
published in the Federal Register and until the rulemaking is closed and
archived at the National Archives and Records Administration. The public
docket includes every document published in the Federal Register in
conjunction with a rulemaking. It also includes regulatory assessments
and analyses, written comments from the public addressed to the merits
of a proposed rule, comments from the public received in response to
notices, or to withdrawals or terminations of a proposed rulemaking,
requests for a public meeting, requests for extension of time, petitions
for rulemaking, grants or denials of petitions or requests, and
transcripts or minutes of informal hearings. The public rulemaking
docket is maintained by the Regulatory Affairs Division, Office of Chief
Counsel.
(b) After FEMA establishes a public rulemaking docket, any person
may examine docketed material during established business hours by
prearrangement with the Regulatory Affairs Division, Office of Chief
Counsel, FEMA, 500 C St. SW, Washington, DC 20472, and may obtain a copy
of any docketed material (except for copyrighted material). FEMA also
maintains a copy of
[[Page 8]]
each public docket electronically, with the exception of copyrighted
material, on www.regulations.gov. To access the docket on
www.regulations.gov, search for the docket ID associated with the
rulemaking.
(c) The docket for flood hazard elevation rules issued by the
National Flood Insurance Program are partially maintained at the
locality that is the subject of the rule. FEMA includes in the preamble
of each flood hazard elevation rule the repository address for
supporting material.
Sec. 1.5 Public comments.
A member of the public may submit comments via mail or courier to
the Regulatory Affairs Division, Office of Chief Counsel, Federal
Emergency Management Agency, 500 C St. SW, Washington, DC 20472, or may
submit comments electronically to the rulemaking docket at
www.regulations.gov under the applicable docket ID.
Sec. 1.6 Ex parte communications.
(a) All oral or written communications from outside the Federal
Executive branch of significant information and argument respecting the
merits of a rulemaking document, received after publication of a notice
of proposed rulemaking, by FEMA or its offices and divisions or their
personnel participating in the decision, must be summarized in writing
and placed promptly in the public docket. This applies until the agency
publishes a final regulatory action such as a withdrawal of the notice
of proposed rulemaking or a final rule.
(b) FEMA may conclude that restrictions on ex parte communications
are necessitated at other times by considerations of fairness or for
other reasons.
(c) This section does not apply to Tribal consultations.
Sec. 1.7 Hearings.
(a) When FEMA affords an opportunity for oral presentation, the
hearing is an informal, non-adversarial, fact-finding proceeding. Any
rulemaking 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 such a hearing is provided, the Administrator will
designate a representative to conduct the hearing.
(c) The transcript or minutes of the hearing will be kept and filed
in the public rulemaking docket.
Sec. 1.8 Petitions 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 any member of the public and any entity outside
the Federal Executive branch of Government. Each petitioner must:
(1) Submit the petition to the Regulatory Affairs Division, Office
of Chief Counsel, FEMA, 8NE, 500 C Street SW, Washington, DC 20472;
(2) Label the petition with the following: ``Petition for
Rulemaking'' or ``Rulemaking Petition'';
(3) Set forth the substance of the rule or amendment proposed or
specify the rule sought to be repealed or amended;
(4) Explain the interest of the petitioner in support of the action
sought; and
(5) Set forth all data and arguments available to the petitioner in
support of the action sought.
(b) FEMA will specify additional methods of submitting rulemaking
petitions on its website at www.fema.gov/ about/offices/chief-counsel/
rulemaking and petitioners seeking to confirm whether FEMA has received
or responded to a specific rulemaking petition may inquire at fema-
[email protected]. The website may also contain other information
about the petition for rulemaking process.
(c)(1) FEMA may solicit public comment on the petition in its
discretion. 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 disposition will be posted on www.regulations.gov
under docket ID FEMA-2022-0011.
[[Page 9]]
(2) The Administrator may consider new evidence at any time;
however, FEMA will not consider repetitious petitions for rulemaking.
Sec. 1.9 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. 1.8.
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).
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?
[[Page 10]]
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]
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.
[[Page 11]]
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.
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
[[Page 12]]
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 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,
[[Page 13]]
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
Subparts A-E [Reserved]
Subpart F_Subpoenas or Other Legal Demands for Testimony or the
Production or Disclosure of Records or Other Information
Sec.
5.80 Scope and applicability.
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 Records involved in litigation or other judicial process.
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: Pub. L. 107-296, 116 Stat. 2135; 5 U.S.C. 301.
Source: 44 FR 50287, Aug. 27, 1979, unless otherwise noted.
Subparts A-E [Reserved]
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
[[Page 14]]
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.
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 Records involved in litigation or other judicial process.
Subpoenas duces tecum issued pursuant to litigation or any other
adjudicatory proceeding in which the United
[[Page 15]]
States is a party shall be referred to the Chief Counsel.
[81 FR 83643, Nov. 22, 2016]
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 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.
[[Page 16]]
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.
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
[[Page 17]]
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 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]
[[Page 18]]
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, 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:
[[Page 19]]
(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 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.
[[Page 20]]
(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 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.
[[Page 21]]
(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 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]
[[Page 22]]
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 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
[[Page 23]]
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 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]
[[Page 24]]
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.
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]
[[Page 25]]
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.
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
[[Page 26]]
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 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
[[Page 27]]
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
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
[[Page 28]]
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 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
[[Page 29]]
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 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
[[Page 30]]
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 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
[[Page 31]]
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.
(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
[[Page 32]]
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 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
[[Page 33]]
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 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
[[Page 34]]
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.
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.
[[Page 35]]
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 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,
[[Page 36]]
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, 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.
[[Page 37]]
(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 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
[[Page 38]]
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 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
[[Page 39]]
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 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)
[[Page 40]]
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
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
[[Page 41]]
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 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 Administrator 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
[[Page 42]]
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 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
[[Page 43]]
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.
(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
[[Page 44]]
(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 (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 Sec. Sec. 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
[[Page 45]]
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 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 Sec. Sec. 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]
[[Page 46]]
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 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)
[[Page 47]]
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 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.
[[Page 48]]
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.
(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,
[[Page 49]]
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
(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.
9.2 Policy.
9.3 Severability.
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.
Authority: 6 U.S.C. 101 et seq.; 42 U.S.C. 4001 et seq.; 42 U.S.C.
4321 et seq.; E.O. 11988 of May 24, 1977, 42 FR 26951, 3 CFR, 1977
Comp., p. 117; E.O. 11990 of May 24, 1977, 42 FR 26961, 3 CFR, 1977
Comp. p. 121; E.O. 13690, 80 FR 6425; E.O. 14030, 86 FR 27967.
Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.
Sec. 9.1 Purpose.
This part sets forth the policy, procedure, and responsibilities to
implement and enforce relevant sections of the National Flood Insurance
Act of 1968, as amended, and the Flood Disaster Protection Act of 1973,
as amended, 42 U.S.C. 4001 et seq., the National Environmental Policy
Act of 1969, 42 U.S.C. 4321 et seq., as amended, and other relevant
statutory authorities in conjunction with Executive Order 11988,
Floodplain Management, as amended, and
[[Page 50]]
Executive Order 11990, Protection of Wetlands.
[89 FR 57037, July 11, 2024]
Sec. 9.2 Policy.
(a) FEMA shall take no action unless and until the requirements of
this regulation are complied with.
(b) The Agency will provide leadership in floodplain management and
the protection of wetlands, informed by the best available and
actionable science, to bolster the resilience of communities and Federal
assets against the impacts of flooding, which are anticipated to
increase over time due to the effects of changing conditions which
adversely affect the environment, economic prosperity, public health and
safety, and national security.
(c) The Agency shall integrate the goals of the Orders to the
greatest possible degree into its procedures for implementing the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
(d) The Agency shall:
(1) Minimize the impact of floods on human health, safety, and
welfare;
(2) Avoid long- and short-term adverse impacts associated with the
occupancy and modification of floodplains and the destruction and
modification of wetlands;
(3) Avoid direct and indirect support of floodplain development and
new construction in wetlands wherever there is a practicable
alternative;
(4) Reduce the risk of flood loss;
(5) Promote the use of nonstructural flood protection methods to
reduce the risk of flood loss;
(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;
(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.
[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57038, July 11, 2024]
Sec. 9.3 Severability.
Any provision of this part held to be invalid or unenforceable as
applied to any action should be construed so as to continue to give the
maximum effect to the provision permitted by law, unless such holding is
that the provision of this part is invalid and unenforceable in all
circumstances, in which event the provision should be severable from the
remainder of this subpart and shall not affect the remainder thereof.
[89 FR 57038, July 11, 2024]
Sec. 9.4 Definitions.
The following definitions shall apply throughout this regulation.
0.2 percent annual chance flood elevation means the elevation to
which floodwater is anticipated to rise during the 0.2 percent annual
chance flood (also known as the 500-year flood).
0.2 Percent annual chance floodplain means the area subject to
flooding by the 0.2 percent annual chance flood (also known as the 500-
year floodplain).
1 percent annual chance flood elevation--see the definition of base
flood elevation in this section.
1 percent annual chance floodplain means the area subject to
flooding by the 1 percent annual chance flood (also known as the 100-
year floodplain or base floodplain).
Action means
(1) Acquiring, managing, and disposing of Federal lands and
facilities;
(2) Providing federally undertaken, financed, or assisted
construction and improvements; and
(3) Conducting Federal activities and programs affecting land use,
including, but not limited to, water and related land resources,
planning, regulating, and licensing activities.
Action subject to the Federal Flood Risk Management Standard (FFRMS)
means any action where FEMA funds are used for new construction,
substantial improvement, or to address substantial damage to a structure
or facility.
Actions affecting or affected by floodplains or wetlands means
actions
[[Page 51]]
which have the potential to result in the long- or short-term impacts
associated with:
(1) The occupancy or modification of floodplains, and the direct or
indirect support of floodplain development, or
(2) 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 elevation means the elevation to which floodwater is
anticipated to rise during the 1 percent annual chance flood (also known
as the base flood or 100-year flood). The terms ``base flood
elevation,'' ``1 percent annual change flood elevation,'' and ``100-year
flood elevation'' are synonymous and are used interchangeably.
Coastal high hazard area means an area of flood hazard extending
from offshore to the inland limit of a primary frontal dune along an
open coast and any other area subject to high velocity wave action from
storms or seismic sources.
Critical action means any action for which even a slight chance of
flooding is too great. Critical actions include, but are not limited to,
those which create or extend the useful life of structures or
facilities:
(1) Such as those which produce, use or store highly volatile,
flammable, explosive, toxic or water-reactive materials;
(2) 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;
(3) 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
(4) Such as generating plants, and other principal points of utility
lines.
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
403 and 502 of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act of 1988 (42 U.S.C. 5170b and 5192).
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.
Federal Flood Risk Management Standard (FFRMS) means the Federal
flood risk management standard to be incorporated into existing
processes used to implement Executive Order 11988, as amended.
Federal Flood Risk Management Standard (FFRMS) floodplain means the
floodplain established using one of the approaches described in Sec.
9.7(c) of this part.
Federally funded project--see the definition of Action subject to
the Federal Flood Risk Management Standard in this section.
FEMA means the Federal Emergency Management Agency.
FEMA Resilience means the organization within FEMA that includes the
Federal Insurance and Mitigation Administration, the Grants Program
Directorate, and the National Preparedness Directorate.
Flood or flooding means the 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 of runoff of
[[Page 52]]
surface waters from any source. 0.2 percent annual chance flood means
the flood which has a 0.2 percent chance of being equaled or exceeded in
any given year (also known as the 500-year flood). 1 percent annual
chance flood means the flood which has a 1 percent chance of being
equaled or exceeded in any given year (also known as the 100-year flood
or base flood). The terms ``base flood,'' ``1 percent annual chance
flood,'' and ``100-year flood'' are synonymous and are used
interchangeably.
Floodplain means any land area that is subject to flooding. The term
``floodplain,'' by itself, refers to geographic features with undefined
boundaries. For the purposes of this part, the FFRMS floodplain shall be
established using one of the approaches described in Sec. 9.7(c). See
the definitions of 0.2 percent annual chance floodplain, 1 percent
annual chance floodplain, and Federal Flood Risk Management Standard
floodplain in this section.
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.
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. 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 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.
National security means:
(1) A condition that is provided by either:
(i) A military or defense advantage over any foreign nation or group
of nations;
(ii) A favorable foreign relations position; or
(iii) A defense posture capable of successfully resisting hostile or
destructive action from within or without, overt or covert.
(2) National security encompasses both national defense and foreign
relations of the United States.
Natural and beneficial values of floodplains and wetlands means
features or resources that provide environmental and societal benefits.
Water and biological resources are often referred to as ``natural
functions of floodplains and wetlands.'' These values include, but are
not limited to:
(1) Water resource values (storing and conveying floodwaters,
maintaining water quality, and groundwater recharge);
(2) Living resource values (providing habitats and enhancing
biodiversity for fish, wildlife, and plant resources);
(3) Cultural resource values (providing open space, natural beauty,
recreation, scientific study, historic and archaeological resources, and
education; and
(4) Cultivated resource values (creating rich soils for agriculture,
aquaculture, and forestry).
Natural features means characteristics of a particular environment
(e.g., barrier islands, sand dunes, wetlands) that are created by
physical, geological, biological, and chemical processes and exist in
dynamic equilibrium. Natural features are self-sustaining parts of the
landscape that require little or no maintenance to continue providing
their ecosystem services (functions).
Nature-based approaches means the features (sometimes referred to as
``green infrastructure'') designed to mimic natural processes and
provide
[[Page 53]]
specific services such as reducing flood risk and/or improving water
quality. Nature-based approaches are created by human design (in concert
with and to accommodate natural processes) and generally, but not
always, must be maintained in order to reliably provide the intended
level of service.
New construction means the construction of a new structure or
facility or the replacement of a structure or facility which has been
totally destroyed. New construction includes permanent installation of
temporary housing units. New construction in wetlands includes draining,
dredging, channelizing, filling, diking, impounding, and related
activities.
Orders means Executive Order 11988, Floodplain Management, as
amended, and Executive Order 11990, Protection of Wetlands.
Practicable means capable of being done within existing constraints.
The test of what is practicable depends on the situation and includes
consideration of all pertinent factors, such as natural environment,
social concerns, economic aspects, legal constraints, and agency
authorities.
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 rise in the water surface is no more than a designated amount
above the base flood elevation.
Restore means to reestablish a setting or environment in which the
natural functions of the floodplain can operate.
Structure means a walled and roofed building, including a temporary
housing unit (manufactured housing) or a gas or liquid storage tank.
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 percent of the pre-
disaster market value of the structure or replacement cost of the
facility (including all ``public facilities'' as defined in the Robert
T. Stafford Disaster Relief and Emergency Assistance Act of 1988) before
the repair or improvement is started, or if the structure or facility
has been damaged and is proposed to be restored. Substantial improvement
includes work to address substantial damage to a structure or facility.
If a facility is an essential link in a larger system, the percentage of
damage will be based on the cost of repairing the damaged facility
relative 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 of floodplain and wetland development means to, directly or
indirectly, encourage, allow, serve, or otherwise facilitate development
in floodplains or wetlands. Development means any man-made change to
improved or unimproved real estate, including but not limited to new
construction, mining, dredging, filling, grading, paving, excavation or
drilling operations, or storage of equipment or materials. Direct
support results from actions within floodplains or wetlands, 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 aquatic life typically adapted for life in saturated or
seasonally saturated soil conditions, including wetlands areas separated
from their natural supply of water as a result of construction
activities such as structural flood protection methods or solid-fill
road beds, and activities such as mineral extraction and navigation
improvements. Examples of wetlands include, but are not limited to,
swamps, fresh and salt water marshes, estuaries, bogs, beaches, wet
meadows, sloughs, potholes,
[[Page 54]]
mud flats, river overflows, and other similar areas. This definition is
intended to be consistent with the definition utilized by the U.S. Fish
and Wildlife Service.
[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; 89 FR 57038, July
11, 2024]
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) The amendments to this part made on September 9, 2024 apply to
new actions for which assistance is made available pursuant to
declarations under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act of 1988 on or after September 9, 2024 and new actions for
which assistance is made available pursuant to notices of funding
opportunities published on or after September 9, 2024. For ongoing
actions for which assistance was made available prior to that date,
legacy program regulations (available at http://www.fema.gov) shall
apply.
(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, as amended. 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 part are not applicable to the actions
enumerated in paragraphs (c)(1) through (10) of this section except that
the Regional Administrators shall comply with the spirit of Executive
Order 11988, as amended, and Executive Order 11990 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), (e), and (g) of this section
regarding other categories of partial or total exclusion). The
provisions of this part do not apply to the following (all references
are to the Robert T. Stafford Disaster Relief and Emergency Assistance
Act of 1988, Public Law 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 403 and 502;
(2) Emergency Support Teams (section 303);
(3) Emergency Communications (section 418);
(4) Emergency Public Transportation (section 419);
(5) Fire Management Assistance (section 420), except for hazard
mitigation assistance under sections 404 and 420(d);
[[Page 55]]
(6) Community Disaster Loans (section 417), 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;
(7) The following Federal Assistance to Individuals and Households
Program (section 408) categories of assistance:
(i) Financial assistance for temporary housing (section
408(c)(1)(A));
(ii) Lease and repair of rental units for temporary housing (section
408(c)(1)(B)(ii)), except that Step 1 (Sec. 9.7) shall be carried out;
(iii) Repairs (section 408(c)(2));
(iv) Replacement (section 408(c)(3)); and
(v) Financial assistance to address other needs (section 408(e)).
(8) Debris clearance and removal (sections 403 and 502), except
those grants involving non-emergency disposal of debris within a
floodplain or wetland (section 407);
(9) Actions under sections 406 and 407 of less than $18,000. Such
$18,000 amount will be adjusted annually to reflect changes in the
Consumer Price Index for All Urban Consumers published by the Department
of Labor;
(10) 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) Abbreviated decision-making process applying steps 1, 4, 5, and
8. The Regional Administrator shall apply steps 1, 4, 5, and 8 of the
decision-making process (Sec. Sec. 9.7, 9.10, and 9.11) to repairs
under section 406 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act of 1988, Public Law 93-288, as amended, between
$18,000 and $91,000. Such $18,000 and $91,000 amounts will be adjusted
annually to reflect changes in the Consumer Price Index for All Urban
Consumers published by the Department of Labor. For any action which is
excepted from the actions listed below (except as otherwise provided in
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. Steps 1, 4, 5, and 8 of the decision-making process apply to
actions under section 406 of the Stafford Act referenced above except
for:
(1) Actions in a floodway or coastal high hazard area; or
(2) New construction, substantial improvement, or repairs to address
substantial damage of structures or facilities; or
(3) Facilities or structures which have previously sustained damage
from flooding due to a major disaster or emergency or on which a flood
insurance claim has been paid; or
(4) Critical actions.
(e) Abbreviated decision-making process applying steps 1, 2, 4, 5,
and 8. The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 of
the decision-making process (Sec. Sec. 9.7, 9.8, 9.10, and 9.11, see
Sec. 9.6) to certain actions under Section 406 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act of 1988, Public
Law 93-288, as amended, provided in paragraphs (e)(1) and (2) of this
section. 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
otherwise provided in this section regarding other categories of partial
or total exclusion), the full 8-step process applies (see Sec. 9.6).
The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 of the
decision-making process (Sec. Sec. 9.7, 9.8, 9.10, and 9.11, see Sec.
9.6) to:
(1) Replacement of building contents, materials, and equipment
(section 406).
(2) Repairs under section 406 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 percent of the
estimated
[[Page 56]]
reconstruction cost of the entire facility or structure or is more than
$364,000. Such $364,000 amount will be adjusted annually to reflect
changes in the Consumer Price Index for All Urban Consumers published by
the Department of Labor; or
(ii) The action is located in a floodway or coastal high hazard
area; or
(iii) Facilities or structures which have 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.
(f) Other categories of actions. Based upon the completion of the 8-
step decision-making process (Sec. 9.6), the Regional Administrator 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 paragraph (c) of this section, or has no practicable
alternative sites and shall be treated as those actions listed in
paragraph (e) of this section, or has no practicable alternative actions
or sites and shall be treated as those actions listed in paragraph (d)
of this section. This finding will be made in consultation with FEMA
Resilience and the Council on Environmental Quality as provided in
section 2(d) of Executive Order 11988, as amended. Public notice of each
of these determinations shall include publication in the Federal
Register and a 30-day comment period.
(g) The National Flood Insurance Program (NFIP). (1) FEMA Resilience
shall apply the 8-step decision-making process to program-wide actions
under the NFIP, including all regulations, procedures, and other
issuances making or amending program policy, and the establishment of
programmatic standards or criteria. FEMA Resilience shall not apply the
8-step decision-making process to the application of programmatic
standards or criteria to specific situations. Thus, for example, FEMA
Resilience 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.
(2) The provisions set forth in this part are not applicable to the
actions enumerated below except that FEMA Resilience 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 NFIP;
(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.
[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; 89 FR 57040, July 11, 2024]
Sec. 9.6 Decision-making process.
(a) Purpose. This section sets out the floodplain management and
wetlands protection decision-making process to be followed by the Agency
in applying the Orders to its actions. The numbering of Steps 1 through
8 does not require that the steps be followed sequentially. As
information is gathered through the decision-making process, and as
additional information is needed, reevaluation of lower numbered steps
may be necessary.
(b) Decision-making process. Except as otherwise provided in Sec.
9.5 regarding categories of partial or total exclusion when proposing an
action, the Agency shall apply the 8-step decision-making process. FEMA
shall:
(1) Step 1. Determine whether the proposed action is located in a
floodplain and/or a wetland as established by Sec. 9.7; and whether it
has the potential to affect or be affected by a floodplain or wetland
(see Sec. 9.7);
(2) 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);
(3) Step 3. Identify and evaluate practicable alternatives to
locating the
[[Page 57]]
proposed action in a floodplain or wetland (including alternative sites,
actions, natural features, nature-based approaches, 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.
(4) 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);
(5) Step 5. Minimize the potential adverse impacts to or within
floodplains and wetlands and minimize support of floodplain and wetland
development 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. Integrate nature-
based approaches where appropriate (see Sec. 9.11);
(6) 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 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);
(7) 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
(8) 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.
[89 FR 57041, July 11, 2024]
Sec. 9.7 Determination of proposed action's location.
(a) Purpose. This section establishes Agency procedures for
determining whether any action as proposed is located in or affects a
floodplain established in paragraph (c) of this section or a wetland.
(b) Information needed. (1) The Agency shall obtain enough
information so that it can fulfill the requirements in this part to:
(i) Avoid Federal action in floodplain and wetland locations unless
they are the only practicable alternatives; and
(ii) Minimize harm to and within floodplains and wetlands.
(2) In all cases, FEMA shall determine whether the proposed action
is located in a floodplain or wetland. Information about the floodplain
as established by paragraph (c) of this section and the location of
floodways and coastal high hazard areas may also be needed to comply
with this part, especially Sec. 9.11.
(3) The following additional current and future flooding
characteristics may be identified by the Regional Administrator as
applicable:
(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.
(vi) Any other applicable flooding characteristics.
(c) Floodplain determination. In the absence of a finding to the
contrary, FEMA will determine that a proposed action involving a
facility or structure that has been flooded previously is in the
floodplain. In determining if a proposed action is in the floodplain:
(1) FEMA shall determine whether the action is an action subject to
the FFRMS as defined in Sec. 9.4.
(i) If the action is an action subject to the FFRMS, FEMA shall
establish the FFRMS floodplain area and associated flood elevation by
using the process specified in (c)(3) of this section and one of the
following approaches:
[[Page 58]]
(A) Climate-Informed Science Approach (CISA): Using a climate-
informed science approach that uses the best-available, actionable
hydrologic and hydraulic data and methods that integrate current and
future changes in flooding based on climate science. This approach will
also include an emphasis on whether the action is a critical action as
one of the factors to be considered when conducting the analysis;
(B) Freeboard Value Approach (FVA): Using the freeboard value,
reached by adding an additional 2 feet to the base flood elevation for
non-critical actions and by adding an additional 3 feet to the base
flood elevation for critical actions;
(C) 0.2-Percent-Annual-Chance Flood Approach (0.2PFA): The 0.2
percent annual chance flood; or
(D) Any other method identified in an update to the FFRMS.
(ii) FEMA may select among and prioritize the approaches in this
paragraph (c)(1) by policy.
(iii) FEMA may provide an exception to using the FFRMS floodplain
and corresponding flood elevation for an action subject to the FFRMS and
instead use the 1 percent annual chance (base) floodplain for non-
critical actions or the 0.2 percent annual chance floodplain for
critical actions where the action is in the interest of national
security, where the action is an emergency action, or where the action
is a mission-critical requirement related to a national security
interest or an emergency action.
(2) If the action is not an action subject to the FFRMS as defined
in Sec. 9.4, FEMA shall use, at a minimum:
(i) The 1 percent annual chance (base) floodplain and flood
elevation for non-critical actions; and
(ii) The 0.2 percent annual chance floodplain and flood elevation
for critical actions.
(3) FEMA shall establish the floodplain and corresponding elevation
using the best available information. The floodplain and corresponding
elevation determined using the best available information must be at
least as restrictive as FEMA's regulatory determinations under the NFIP
where such determinations are available. In obtaining the best available
information, FEMA may consider other FEMA information as well as other
available information, such as information from:
(i) Department of Agriculture: Natural Resources Conservation
Service, U.S. Forest Service;
(ii) Department of Defense: U.S. Army Corps of Engineers;
(iii) Department of Commerce: National Oceanic and Atmospheric
Administration;
(iv) Department of the Interior: Bureau of Land Management, Bureau
of Reclamation, National Park Service, U.S. Fish and Wildlife Service,
United States Geological Survey;
(v) Tennessee Valley Authority;
(vi) Department of Transportation;
(vii) Environmental Protection Agency;
(viii) General Services Administration;
(ix) Agencies of State, Regional, and Indian Tribal governments; or
(x) Local sources such as Floodplain Administrators, Regional Flood
Control Districts, or Transportation Departments.
(4) If the sources listed in paragraph (c)(3) of this section do not
have or know of the information necessary to comply with the
requirements in this part, the Regional Administrator may seek the
services of a professional registered engineer.
(5) If a decision involves an area or location within extensive
Federal or state holdings or a headwater area and FEMA's regulatory
determinations under the National Flood Insurance Program are 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 paragraph (c)(3) of this section.
(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.
[[Page 59]]
(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 the identified 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 definition of a
wetland in Sec. 9.4.
(4) If an action constitutes new construction and is in a wetland
but not in a floodplain, the provisions of this part shall apply. 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 potential 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 the 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; 89 FR 57042, July 11, 2024]
Sec. 9.8 Public notice requirements.
(a) Purpose. This section establishes the initial notice procedures
to be followed when the Agency proposes 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 constitutes 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 at a minimum shall provide notice by
publication in the Federal Register 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 determine whether it has provided appropriate
notices, adequate comment periods, and whether to issue cumulative
notices (paragraphs (c)(4), (6), and (7) of this section) based 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) Anticipated potential impact of the action.
(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 include, as
appropriate:
(i) Notice through the internet or another comparable method.
(ii) Notice to Indian tribes when effects may occur on reservations.
[[Page 60]]
(iii) Information required in the affected State's public notice
procedures for comparable actions.
(iv) Publication in local newspapers.
(v) Notice through other local media including newsletters.
(vi) Notice to potential interested community organizations.
(vii) Direct mailing to owners and occupants of nearby or affected
property.
(viii) Posting of notice on and off site in the area where the
action is to be located.
(ix) Public hearing.
(5) The notice shall:
(i) Describe the action, its purposes, 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,
include a map of the area and other identification of the floodplain
and/or wetland areas which is of adequate scale and detail;
alternatively, 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 or may provide a link to
access the map online;
(iii) Based on the factors in paragraph (c)(3) of this section,
describe the type, extent, and degree of hazard involved and the
floodplain or wetland values present; and
(iv) Identify 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;
89 FR 57042, July 11, 2024]
Sec. 9.9 Analysis and reevaluation of practicable alternatives.
(a) Purpose. (1) This section expands upon the directives set out in
Sec. 9.6 of this part in order to clarify and emphasize the
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
[[Page 61]]
proposed action, but which have less potential to affect or be affected
by the floodplain or wetlands. In developing the alternative actions,
the Agency shall use, where possible, natural systems, ecosystem
processes, and nature-based approaches; 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 (including, but not limited to topography,
habitat, hazards, when applicable);
(2) Social concerns (including, but not limited to aesthetics,
historical and cultural values, land patterns, when applicable);
(3) Economic aspects (including, but not limited to costs of space,
technology, construction, services, relocation, when applicable);
(4) Legal constraints (including, but not limited to deeds and
leases, when applicable); and
(5) Agency authorities.
(1) The Agency shall not locate the proposed action in the
floodplain as established by Sec. 9.7(c) or in a wetland if a
practicable alternative exists outside the floodplain or wetland.
(2) 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,
considering the flood risk and the ensuing disruption of natural values;
(ii) The floodplain or wetland site is the only practicable
alternative;
(iii) The scope of the action can be limited to increase the
practicability of previously rejected non-floodplain or wetland sites
and alternative actions; and
(iv) Harm to or within the floodplain can be minimized using all
practicable means.
(2) Take no action in a floodplain unless the importance of the
floodplain site clearly outweighs the requirements 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 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 great weight.
(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.
[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57043, July 11, 2024]
[[Page 62]]
Sec. 9.10 Identify impacts of proposed actions.
(a) This section ensures 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 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 this part to avoid
floodplain and wetland locations unless they are the only practicable
alternatives 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.
(d) In the review of a proposed or alternative action, the Regional
Administrator shall 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, but are not limited
to, the factors listed in Sec. 9.7(b)(3);
(2) Natural values-related factors. These include, but are not
limited to: water resource values, as in storing and conveying
floodwaters, maintaining water quality, and groundwater recharge; living
resource values, as in providing habitats and enhancing biodiversity for
fish and wildlife and plant resources; cultural resource values, as in
providing open space, natural beauty, recreation, scientific study,
historical and archaeological resources, and education; and cultivated
resource values, as in creating rich soils for agriculture, aquaculture,
and forestry.
(3) Factors relevant to a proposed action's effects on the survival
and quality of wetlands. These include, but are not limited to: 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.
[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57043, July 11, 2024]
Sec. 9.11 Mitigation.
(a) Purpose. This section expands upon the directives set out in
Sec. 9.6 of this part and sets 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 from flooding based
on flood elevations as established by Sec. 9.7(c);
(2) Potential adverse impacts the action may have on others; and
(3) Potential adverse impact the action may have on floodplain and
wetland values.
[[Page 63]]
(d) Minimization Standards. 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 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: Any construction
of a new or substantially improved structure in a coastal high hazard
area must be 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 floodplain as established by Sec.
9.7(c). The structure shall be anchored so as to withstand velocity
waters and hurricane wave wash.
(3) The following applies to 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 elevation of the floodplain as established
by Sec. 9.7(c).
(ii) If the subject structure is nonresidential, instead of
elevating the structure, FEMA may approve the design of the structure
and its attendant utility and sanitary facilities so that the structure
is watertight below the flood elevation 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.
(iii) The provisions of paragraphs (d)(3)(i) and (ii) of this
section do not apply to the extent that FEMA Resilience has granted an
exception under Sec. 60.6(b) of this chapter, or the community has
granted a variance which the Regional Administrator determines is
consistent with Sec. 60.6(a) of this chapter. In a community which does
not have a FEMA regulatory product in effect, FEMA may approve a
variance from the standards of paragraphs (d)(3)(i) and (ii) of this
section, after compliance with the standards of Sec. 60.6(a).
(4) There shall be no encroachments, including but not limited to
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 elevation within the
community during the occurrence of the 1 percent annual chance (base)
flood discharge. Until a regulatory floodway is designated, no fill, new
construction, substantial improvements, or other development shall be
permitted within the 1 percent annual chance (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 1 percent annual chance
(base) flood more than the amount designated by the NFIP or the
community, whichever is most restrictive.
(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 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,
[[Page 64]]
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,
flood proofing and/or elevation of the building and/or elimination of
such future losses by relocation of those building contents, materials,
and equipment outside or above the floodplain as established by Sec.
9.7(c).
(e) 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; 89 FR 57044, July 11, 2024]
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)(1) 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:
(i) Scale of the action;
(ii) Potential for controversy;
(iii) Degree of public need;
(iv) Number of affected agencies and individuals;
(v) Its anticipated potential impact; and
(vi) Similarity of the actions, i.e., to the extent that they are
susceptible of common descriptions and assessments.
(2) When a damaged structure or facility is already being repaired
by the State or local government at the time of the project application,
the requirements of Steps 2 and 7 (Sec. 9.8 and this section) may be
met by a single notice. Such notice shall contain all the information
required by both sections.
[[Page 65]]
(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;
(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;
89 FR 57045, July 11, 2024]
Sec. 9.13 Particular types of temporary housing.
(a) This section sets forth the procedures whereby the Agency will
provide certain specified types of temporary housing at a private,
commercial, or group site.
(b) Prior to providing the temporary housing described in paragraph
(a) of this section, the Agency shall comply with the provisions of this
section. For temporary housing not enumerated above, the full 8-step
process (see Sec. 9.6) applies.
(c) The actions described in paragraph (a) 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 the
1 percent annual chance (base) floodplain or wetland.
(2) No temporary housing unit may be placed on a site in a floodway
or coastal high hazard area.
(3) An individual or family shall not be housed in the 1 percent
annual chance (base) 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) For temporary housing units at group sites, Step 4 of the 8-step
process shall be applied in accordance with Sec. 9.10.
(5) 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 temporary housing
units:
(i) No temporary housing unit may be placed unless it is elevated to
the fullest extent practicable up to the base flood elevation and
adequately anchored.
(ii) No temporary housing unit may be placed if such placement is
inconsistent with the criteria of the NFIP (44 CFR parts 59 and 60) or
any more restrictive Federal, State, or local floodplain management
standard. Such standards may require elevation to the base flood
elevation in the absence of a variance.
(iii) Temporary housing units shall be elevated on open works
(walls, columns, piers, piles, etc.) rather than on fill where
practicable.
[[Page 66]]
(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 temporary housing units for temporary housing in floodplains
into existing flood warning or 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 temporary housing unit; and
(C) Give special consideration to the unique hazard potential in
flash flood and rapid-rise areas.
(6) FEMA shall comply with Step 2 Early Public Notice (Sec. 9.8(c))
and Step 7 Final Public Notice (Sec. 9.12). In providing these notices,
the emergency nature of temporary housing shall be taken into account.
(7) FEMA shall carry out the actions in accordance with Step 8,
ensuring the requirements of this section and the decision-making
process are fully integrated into the provision of temporary housing.
(d) The following applies to the permanent installation of a
temporary housing unit as part of a sale or disposal of temporary
housing:
(1) FEMA shall not permanently install temporary housing units in
floodways or coastal high hazard areas. FEMA shall not permanently
install a temporary housing unit in floodplains as established by 9.7(c)
or wetlands unless there is full compliance with the 8-step process.
Given the vulnerability of temporary housing units to flooding, a
rejection of a non-floodplain location alternative and of the no-action
alternative shall be based on:
(i) A compelling need of the family or individual to buy a temporary
housing unit for permanent housing; and
(ii) A compelling requirement to permanently install the unit in a
floodplain.
(2) FEMA shall not permanently install temporary housing units in
the floodplain as established by Sec. 9.7(c) unless they are or will be
elevated at least to the elevation of the floodplain as established by
Sec. 9.7(c).
(3) The Regional Administrator shall notify FEMA Resilience of each
instance where a floodplain location has been found to be the only
practicable alternative for permanent installation of a temporary
housing unit.
[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; 89 FR 57045,
July 11, 2024]
Sec. 9.14 Disposal of Agency property.
(a) This section sets 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 of floodplain and
wetland development 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
elevation or 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
[[Page 67]]
whether it is practicable in light of the findings from Sec. Sec. 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
the Agency's 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 inside the floodplain but outside of the
floodway and the coastal high hazard area; 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).
(c) At the time of disposal, for all disposed property, the Agency
shall reference in the conveyance uses that are restricted under
existing Federal, State and local floodplain management and wetland
protection standards relating to flood hazards and floodplain and
wetland values.
[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57045, July 11, 2024]
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, 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 take an action in or affecting
floodplains or wetlands as set out in Sec. 9.6;
(3) The practicability analysis as set out in Sec. 9.9;
(4) The mitigation responsibilities as set out in Sec. 9.11;
(5) The public notice and involvement process as set out in
Sec. Sec. 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 the
Agency's processing of the application due to failure of applicants to
follow the provisions in this part.
[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57046, July 11, 2024]
Sec. 9.17 Instructions to applicants.
(a) Purpose. In accordance with Executive Orders 11988, as amended,
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. This section provides notice to
applicants for Agency assistance of both the criteria that FEMA is
required to follow, and the applicants' responsibilities under this
part.
(b) Responsibilities of applicants. Based upon the guidance provided
by the Agency under Sec. 9.16, the guidance included in the U.S. Water
Resources Council's Guidelines for Implementing
[[Page 68]]
Executive Order 11988, Floodplain Management, and Executive Order 13690,
Establishing a Federal Flood Risk Management Standard and a Process for
Further Soliciting and Considering Stakeholder Input, and based upon the
provisions of the Orders and this part, 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 practicability analysis as set out in Sec. 9.9;
(4) The mitigation responsibilities as set out in Sec. 9.11;
(5) The public notice and involvement process as set out in
Sec. Sec. 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 required 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 applicants. Applications for Agency assistance shall
be reviewed for compliance with the provisions in this part in addition
to the Agency's other approval criteria.
[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57046, July 11, 2024]
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 part. Under
Sec. Sec. 9.2 and 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, FEMA Resilience may make determinations under
this part 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
Executive Order 11988, as amended, and section 3 of Executive Order
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; 89 FR 57046, July 11, 2024]
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.
[[Page 69]]
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.
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
[[Page 70]]
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 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
[[Page 71]]
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 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
[[Page 72]]
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.
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,
[[Page 73]]
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 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
[[Page 74]]
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.
(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
Sec. Sec. 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
[[Page 75]]
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 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,
[[Page 76]]
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.
(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
[[Page 77]]
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.
(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.
[[Page 78]]
(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;
(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,
[[Page 79]]
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 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.
[[Page 80]]
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 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.
[[Page 81]]
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.
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.
Sec. 15.8 Gambling.
We prohibit participating in games for money or other personal
property, including the operation of gambling devices, the conduct of a
lottery or pool, or the sale or purchase of numbers tickets at both
facilities.
Sec. 15.9 Alcoholic beverages and narcotics.
At both Mt. Weather and the NETC we prohibit:
(a) Operating a motor vehicle by any person under the influence of
alcoholic beverages, narcotic drugs, hallucinogens, marijuana,
barbiturates or amphetamines as defined in Title 21 of the Annotated
Code of Maryland, Transportation, sec. 21-902 or in Title 18.2, ch. 7,
Art. 2 of the Code of Virginia, secs. 18.2-266 and 18.2-266.1, as
applicable;
(b) Entering upon or while on either property being under the
influence of or using or possessing any narcotic drug, marijuana,
hallucinogen, barbiturate or amphetamine. This prohibition does not
apply in cases where a licensed physician has prescribed the drug for
the person;
(c) Entering upon either property or being on either property under
the influence of alcoholic beverages;
(d) Bringing alcoholic beverages, narcotic drugs, hallucinogens,
marijuana, barbiturates or amphetamines onto the premises unless the
Assistant Administrator, the Mt. Weather Executive Director, or the
Administrator or designee for the NETC authorizes it in writing; and
(e) Use of alcoholic beverages on the property except:
(1) In the Balloon Shed Lounge at Mt. Weather and in other locations
that the Administrator or the Mt. Weather Executive Director authorizes
in writing; and
(2) In the NETC Recreation Association and other locations that the
Assistant Administrator for the United States Fire Administration or the
Administrator, or designee, authorizes in writing.
Sec. 15.10 Soliciting, vending, and debt collection.
(a) We prohibit soliciting alms and contributions, commercial or
political soliciting and vending of all kinds, displaying or
distributing commercial advertising, or collecting private debts unless
the Assistant Administrator for the United States Fire Administration or
the Mt. Weather Executive Director approve the activities in writing and
in advance.
(b) The prohibitions of this section do not apply to:
(1) National or local drives for funds for welfare, health, or other
purposes
[[Page 82]]
as authorized by 5 CFR part 950, Solicitation of Federal Civilian and
Uniformed Service Personnel for Contributions to Private Voluntary
Organizations. The Administrator, or the Senior Resident Manager, or the
Assistant Administrator for the United States Fire Administration or
designee, must approve all such national or local drives before they are
conducted on either premises;
(2) Authorized concessions;
(3) Personal notices posted by employees on authorized bulletin
boards; and
(4) Solicitation of labor organization membership or dues authorized
by occupant agencies under the Civil Service Reform Act of 1978, 5
U.S.C. 7101 et seq.
Sec. 15.11 Distribution of handbills.
We prohibit the distribution of materials such as pamphlets,
handbills or flyers, and the displaying of placards or posting of
materials on bulletin boards or elsewhere at Mt. Weather and the NETC
unless the Administrator, the Mt. Weather Executive Director, or the
Deputy Assistant Administrator for the United States Fire Administration
or designee, approves such distribution or display, or when such
distribution or display is conducted as part of authorized government
activities.
Sec. 15.12 Photographs and other depictions.
(a) Photographs and other depictions at Mt. Weather. We prohibit
taking photographs and making notes, sketches, or diagrams of buildings,
grounds or other features of Mt. Weather, or the possession of a camera
while at Mt. Weather except when the Administrator or Mt. Weather
Executive Director approves in advance.
(b) Photographs and other depictions at the NETC. (1) Photographs
may be taken inside classroom or office areas of the NETC only with the
consent of the occupants. Except where security regulations apply or a
Federal court order or rule prohibits it, photographs may be taken in
entrances, lobbies, foyers, corridors, or auditoriums when used for
public meetings.
(2) Subject to the foregoing prohibitions, photographs for
advertising and commercial purposes may be taken only with written
permission of the Director of Management Operations and Systems Support,
United States Fire Administration, Federal Emergency Management Agency,
Emmitsburg, MD 21727, (telephone) (301) 447-1223, (facsimile) (301) 447-
1052, or other authorized official where photographs are to be taken.
Sec. 15.13 Dogs and other animals.
Dogs and other animals, except seeing-eye dogs, must not be brought
onto Mt. Weather grounds or into the buildings at NETC for other than
official purposes.
Sec. 15.14 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles entering or while at Mt. Weather or the
NETC must drive carefully and safely at all times and must obey the
signals and directions of the Police/Security Force or other authorized
officials and all posted traffic signs;
(b) Drivers must comply with NETC parking requirements and vehicle
registration requirements;
(c) At both Mt. Weather and the NETC we prohibit:
(1) Blocking entrances, driveways, walks, loading platforms, or fire
hydrants on the property; and
(2) Parking without authority, parking in unauthorized locations or
in locations reserved for other persons, or parking contrary to the
direction of posted signs.
(3) Where warning signs are posted vehicles parked in violation may
be removed at the owners' risk and expense.
(d) The Administrator, Mt. Weather Executive Director, or the
Assistant Administrator for the United States Fire Administration or
designee may issue and post specific supplemental traffic directives if
needed. When issued and posted supplemental traffic directives will have
the same force and effect as if they were in these rules. Proof that a
parked motor vehicle violated these rules or directives may be taken as
prima facie evidence that the registered owner was responsible for the
violation.
[[Page 83]]
Sec. 15.15 Weapons and explosives.
No person entering or while at Mt. Weather or the NETC will carry or
possess firearms, other dangerous or deadly weapons, explosives or items
intended to be used or that could reasonably be used to fabricate an
explosive or incendiary device, either openly or concealed, except:
(a) For official purposes if the Administrator, Mt. Weather
Executive Director, or the Assistant Administrator for the United States
Fire Administration or designee approves; and
(b) In accordance with FEMA policy governing the possession of
firearms.
Sec. 15.16 Penalties.
(a) Misconduct. (1) Whoever is found guilty of violating any of
these rules and regulations is subject to a fine of not more than $50 or
imprisonment for not more than 30 days, or both. (See 40 U.S.C. 318c.)
(2) We will process any misconduct at NETC according to FEMA/NETC
policy or instructions.
(b) Parking violations. We may tow at the owner's expense any
vehicles parked in violation of State law, FEMA, Mt. Weather, or NETC
instructions.
Sec. 15.17 Other laws.
Nothing in the rules and regulations in this part will be construed
to abolish any other Federal laws or any State and local laws and
regulations applicable to Mt. Weather or NETC premises. The rules and
regulations in this part supplement penal provisions of Title 18, United
States Code, relating to Crimes and Criminal Procedure, which apply
without regard to the place of the offense and to those penal provisions
that apply in areas under the special maritime and territorial
jurisdiction of the United States, as defined in 18 U.S.C. 7. They
supersede provisions of State law, however, that Federal law makes
criminal offenses under the Assimilated Crimes Act (18 U.S.C. 13) to the
extent that State laws conflict with these regulations. State and local
criminal laws apply as such only to the extent that the State reserved
such authority to itself by the State consent or cession statute or that
a Federal statute vests such authority in the State.
PART 16_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL EMERGENCY MANAGEMENT
AGENCY--Table of Contents
Sec.
16.101 Purpose.
16.102 Application.
16.103 Definitions.
16.104-16.109 [Reserved]
16.110 Self-evaluation.
16.111 Notice.
16.112-16.129 [Reserved]
16.130 General prohibitions against discrimination.
16.131-16.139 [Reserved]
16.140 Employment.
16.141-16.148 [Reserved]
16.149 Program accessibility: Discrimination prohibited.
16.150 Program accessibility: Existing facilities.
16.151 Program accessibility: New construction and alterations.
16.152-16.159 [Reserved]
16.160 Communications.
16.161-16.169 [Reserved]
16.170 Compliance procedures.
16.171-16.999 [Reserved]
Authority: 29 U.S.C. 794.
Source: 53 FR 25885, July 8, 1988, unless otherwise noted.
Sec. 16.101 Purpose.
The purpose of this regulation is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
Sec. 16.102 Application.
This regulation (Sec. Sec. 16.101 through 16.170) applies to all
programs or activities conducted by the agency, except for programs or
activities conducted outside the United States that do not involve
individuals with handicaps in the United States.
[[Page 84]]
Sec. 16.103 Definitions.
For purposes of this regulation, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by
[[Page 85]]
statute, regulation, or agency policy to receive education services from
the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this regulation by Sec. 16.140.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this regulation, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
Sec. Sec. 16.104-16.109 [Reserved]
Sec. 16.110 Self-evaluation.
(a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
Sec. 16.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this regulation and its
applicability to the programs or activities conducted by the agency, and
make such information available to them in such manner as the head of
the agency finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this regulation.
Sec. Sec. 16.112-16.129 [Reserved]
Sec. 16.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or
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service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this regulation.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Sec. Sec. 16.131-16.139 [Reserved]
Sec. 16.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subject to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. Sec. 16.141-16.148 [Reserved]
Sec. 16.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 16.150, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from
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participation in, or otherwise be subjected to discrimination under any
program or activity conducted by the agency.
Sec. 16.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 16.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with handicaps. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151 through 4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 16.150(a) in historic preservation programs, the agency shall give
priority to methods that provide physical access to individuals with
handicaps. In cases where a physical alteration to an historic property
is not required because of Sec. 16.150(a) (2) or (3), alternative
methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be
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undertaken to achieve program accessibility, the agency shall develop,
by March 6, 1989, a transition plan setting forth the steps necessary to
complete such changes. The agency shall provide an opportunity to
interested persons, including individuals with handicaps or
organizations representing individuals with handicaps, to participate in
the development of the transition plan by submitting comments (both oral
and written). A copy of the transition plan shall be made available for
public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 16.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. Sec. 16.152-16.159 [Reserved]
Sec. 16.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 16.160 would result
in such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not
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result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with handicaps
receive the benefits and services of the program or activity.
Sec. Sec. 16.161-16.169 [Reserved]
Sec. 16.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Director of the Office of Equal Rights shall be responsible
for coordinating implementation of this section. Complaints may be sent
to Director of the Office of Equal Rights, Room 810, Federal Emergency
Management Agency, 500 C Street, SW., Washington, DC 20472.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by paragraph (g) of this section. The
agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
Sec. Sec. 16.171-16.999 [Reserved]
PART 17 [RESERVED]
PART 18_NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A_General
Sec.
18.100 Conditions on use of funds.
18.105 Definitions.
18.110 Certification and disclosure.
Subpart B_Activities by Own Employees
18.200 Agency and legislative liaison.
18.205 Professional and technical services.
18.210 Reporting.
Subpart C_Activities by Other Than Own Employees
18.300 Professional and technical services.
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Subpart D_Penalties and Enforcement
18.400 Penalties.
18.405 Penalty procedures.
18.410 Enforcement.
Subpart E_Exemptions
18.500 Secretary of Defense.
Subpart F_Agency Reports
18.600 Semi-annual compilation.
18.605 Inspector General report.
Appendix A to Part 18--Certification Regarding Lobbying
Appendix B to Part 18--Disclosure Form To Report Lobbying
Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 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, E.O. 12657, E.O. 12699.
Source: 55 FR 6737, 6754, Feb. 26, 1990, unless otherwise noted.
Cross Reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Subpart A_General
Sec. 18.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative agreement to pay any
person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with any of the
following covered Federal actions: the awarding of any Federal contract,
the making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
Sec. 18.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
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Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to professional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a
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person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 18.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000, unless such person
previously filed a certification, and a disclosure form, if required,
under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
shall file a certification, and a disclosure form, if required, to the
next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to
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file a required certification or disclosure, the United States may
pursue all available remedies, including those authorized by section
1352, title 31, U.S. Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
Subpart B_Activities by Own Employees
Sec. 18.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
18.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
Sec. 18.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
18.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
(b) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational
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capability of a piece of equipment rendered directly in the negotiation
of a contract is allowable. However, communications with the intent to
influence made by a professional (such as a licensed lawyer) or a
technical person (such as a licensed accountant) are not allowable under
this section unless they provide advice and analysis directly applying
their professional or technical expertise and unless the advice or
analysis is rendered directly and solely in the preparation, submission
or negotiation of a covered Federal action. Thus, for example,
communications with the intent to influence made by a lawyer that do not
provide legal advice or analysis directly and solely related to the
legal aspects of his or her client's proposal, but generally advocate
one proposal over another are not allowable under this section because
the lawyer is not providing professional legal services. Similarly,
communications with the intent to influence made by an engineer
providing an engineering analysis prior to the preparation or submission
of a bid or proposal are not allowable under this section since the
engineer is providing technical services but not directly in the
preparation, submission or negotiation of a covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 18.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C_Activities by Other Than Own Employees
Sec. 18.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
18.100 (a), does not apply in the case of any reasonable payment to a
person, other than an officer or employee of a person requesting or
receiving a covered Federal action, if the payment is for professional
or technical services rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in Sec. 18.110 (a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting or a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the
[[Page 95]]
intent to influence made by an engineer providing an engineering
analysis prior to the preparation or submission of a bid or proposal are
not allowable under this section since the engineer is providing
technical services but not directly in the preparation, submission or
negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D_Penalties and Enforcement
Sec. 18.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
Sec. 18.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar
as these provisions are not inconsistent with the requirements herein.
Sec. 18.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E_Exemptions
Sec. 18.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
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Subpart F_Agency Reports
Sec. 18.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 18.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
Sec. Appendix A to Part 18--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and
belief, that:
[[Page 97]]
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required statement shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
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Sec. Appendix B to Part 18--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC02FE91.075
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[GRAPHIC] [TIFF OMITTED] TC02FE91.076
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[GRAPHIC] [TIFF OMITTED] TC02FE91.077
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PART 19_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_Introduction
Sec.
19.100 Purpose and effective date.
19.105 Definitions.
19.110 Remedial and affirmative action and self-evaluation.
19.115 Assurance required.
19.120 Transfers of property.
19.125 Effect of other requirements.
19.130 Effect of employment opportunities.
19.135 Designation of responsible employee and adoption of grievance
procedures.
19.140 Dissemination of policy.
Subpart B_Coverage
19.200 Application.
19.205 Educational institutions and other entities controlled by
religious organizations.
19.210 Military and merchant marine educational institutions.
19.215 Membership practices of certain organizations.
19.220 Admissions.
19.225 Educational institutions eligible to submit transition plans.
19.230 Transition plans.
19.235 Statutory amendments.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
19.300 Admission.
19.305 Preference in admission.
19.310 Recruitment.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
19.400 Education programs or activities.
19.405 Housing.
19.410 Comparable facilities.
19.415 Access to course offerings.
19.420 Access to schools operated by LEAs.
19.425 Counseling and use of appraisal and counseling materials.
19.430 Financial assistance.
19.435 Employment assistance to students.
19.440 Health and insurance benefits and services.
19.445 Marital or parental status.
19.450 Athletics.
19.455 Textbooks and curricular material.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
19.500 Employment.
19.505 Employment criteria.
19.510 Recruitment.
19.515 Compensation.
19.520 Job classification and structure.
19.525 Fringe benefits.
19.530 Marital or parental status.
19.535 Effect of state or local law or other requirements.
19.540 Advertising.
19.545 Pre-employment inquiries.
19.550 Sex as a bona fide occupational qualification.
Subpart F_Procedures
19.600 Notice of covered programs.
19.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52892, Aug. 30, 2000, unless otherwise noted.
Subpart A_Introduction
Sec. 19.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 19.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate,
[[Page 102]]
transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means Director, Office of Equal Rights.
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that offers a program
of academic study that leads to a first professional degree in a field
for which there is a national specialized accrediting agency recognized
by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or
trade, or to pursue study in a
[[Page 103]]
technical field, whether or not the school or institution offers
certificates, diplomas, or degrees and whether or not it offers full-
time study.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or
through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Sec. Sec.
19.100 through 19.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.
Sec. 19.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 19.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from
[[Page 104]]
the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official if the applicant or
recipient to whom such assurance applies fails to commit itself to take
whatever remedial action is necessary in accordance with Sec. 19.110(a)
to eliminate existing discrimination on the basis of sex or to eliminate
the effects of past discrimination whether occurring prior to or
subsequent to the submission to the designated agency official of such
assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 19.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Sec. Sec. 19.205 through 19.235(a).