[Federal Register Volume 72, Number 150 (Monday, August 6, 2007)]
[Rules and Regulations]
[Pages 43544-43546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15224]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 5

[Docket ID FEMA-2007-0006]
RIN 1660-AA54


Federal Emergency Management Agency (FEMA) Touhy Regulations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

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SUMMARY: This final rule makes a clarifying amendment to the Federal 
Emergency Management Agency's (FEMA) Touhy regulations. As already 
provided in the Touhy regulations of the Department of Homeland 
Security (DHS), of which FEMA is a component, FEMA is adding language 
to its regulations clarifying that DHS Touhy regulations are applicable 
to any subject matter not already covered by FEMA's regulations, 
including but not limited to demands or requests directed to current or 
former FEMA contractors. This action ensures consistency within DHS 
with a uniform approach and administration of Touhy regulations, and 
provides additional clarification with respect to agency organization 
and practice. This regulation will have no substantive effect on the 
regulated public.

DATES: This final rule is effective August 6, 2007.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection and copying under Docket ID FEMA-2007-0006, at the Office of 
Chief Counsel, Federal Emergency Management Agency, Room 835, 500 C 
Street, SW., Washington, DC, or online at the Federal eRulemaking 
Portal:  http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jordan S. Fried, Associate Chief 
Counsel for Litigation, Office of Chief Counsel, Federal Emergency 
Management Agency, Department of Homeland Security, 500 C Street, SW., 
Washington, DC 20472, (phone) 202-646-4112, (facsimile) 202-646-4536, 
or (e-mail) [email protected].

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    FEMA did not publish a notice of proposed rulemaking for this 
regulation. Under both 5 U.S.C. 553(b)(A) and (b)(B), FEMA finds that 
this rule is exempt from notice and comment rulemaking requirements 
because this is a procedural rule involving agency organization and 
practice, and has no substantive effect on the public. This rule 
consists only of a technical clarifying amendment. Because this is a 
procedural rule, rather than substantive, this rule will become 
effective immediately upon publication as authorized under 5 U.S.C. 
553(d).

Background

    The Federal Emergency Management Agency (FEMA), a component of the 
Department of Homeland Security (DHS), issues this rule to eliminate 
public confusion with respect to how

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FEMA applies its Touhy regulations. Touhy regulations, named after 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), establish 
restrictions and procedures for demands on Federal agency employees for 
information or testimony 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 a part of 
the performance of that person's official duties or because of that 
person's official status.
    Currently, FEMA has Touhy regulations at 44 CFR part 5 subpart F, 
Subpoenas or Other Legal Demands for Testimony or the Production or 
Disclosure of Records or Other Information; and DHS has Touhy 
regulations at 6 CFR part 5 subpart C, Disclosure of Information in 
Litigation. DHS' regulation, at 6 CFR 5.41(b), provides that ``[t]he 
provisions established by this subpart shall apply to all Department 
components that are transferred to the Department. Except to the extent 
a Department component has adopted separate guidance governing the 
subject matter of a provision of this subpart, the provisions of this 
subpart shall apply to each component of the Department.'' There are 
some circumstances in which the DHS regulations address subject matter 
that is not addressed in FEMA's regulations. Therefore, as a matter of 
agency practice, FEMA applies DHS regulations when FEMA's regulations 
are silent, pursuant to the language of 6 CFR 5.41(b).
    In an effort toward providing public notice of this agency 
practice, FEMA is amending its scope and applicability regulation at 44 
CFR 5.80 to clarify for the public that DHS' Touhy regulations apply to 
any subject matter not already covered by FEMA's regulations, including 
but not limited to demands or requests directed to current or former 
FEMA contractors. FEMA specifically addressed the issue of demands or 
requests directed to current or former FEMA contractors because the 
agency is aware of particular confusion with respect to Title 44's 
silence on this subject matter. This regulatory change clarifies agency 
organization and practice and will have no substantive effect on the 
regulated public.

Executive Order 12866--Regulatory Planning and Review

    FEMA has prepared and reviewed this rule under the provisions of 
Executive Order 12866 (58 FR 51735, Oct. 4, 1993). Under Executive 
Order 12866, a ``significant regulatory action'' is subject to Office 
of Management and Budget (OMB) review and the requirements of the 
Executive Order. Section 3(f) of the Executive Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or may adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    As a DHS component, FEMA is subject to the Touhy provisions 
established by DHS at 6 CFR part 5 subpart C, except to the extent that 
FEMA has adopted separate guidance governing the subject matter of a 
provision of that subpart. As a result, DHS' regulations apply to any 
subject matter not already covered by FEMA's regulations, including but 
not limited to demands or requests directed to current or former FEMA 
contractors. In an effort at removing public confusion, FEMA is 
amending 44 CFR 5.80 to include language notifying the public of this 
existing agency practice and procedure. This regulatory change provides 
clarification with respect to agency organization and practice and has 
no substantive effect on the regulated public. Therefore, this 
rulemaking is not considered to be a significant regulatory action 
under section 3(f) of Executive Order 12866. This rule adheres to the 
principles of regulation as set forth in the Executive Order.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121, 110 Stat. 857), FEMA is not required to prepare 
a final regulatory flexibility analysis for this final rule because the 
agency has not issued a notice of proposed rulemaking prior to this 
action.

National Environmental Policy Act

    The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.) implementing regulations governing FEMA activities at 44 CFR 
10.8(d)(2)(ii) categorically exclude the preparation, revision, and 
adoption of regulations, directives, manuals, and other guidance 
documents related to actions that qualify for categorical exclusions. 
This amendment provides clarifying information regarding administrative 
actions of the agency regarding the handling of demands on Federal 
agency employees for information or testimony in response to a subpoena 
or other demand in private litigation and is therefore categorically 
exempt under Sec.  10.8(d)(2)(i). Because no other extraordinary 
circumstances have been identified, this rule will not require the 
preparation of either an environmental assessment or an environmental 
impact statement as defined by the National Environmental Policy Act.

Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism,'' (64 FR 43255, 
published August 10, 1999), sets forth principles and criteria that 
agencies must adhere to in formulating and implementing policies that 
have federalism implications; that is, regulations that have 
substantial direct effects on the States, or on the distribution of 
power and responsibilities among the various levels of government. 
Federal agencies must closely examine the statutory authority 
supporting any action that would limit the policymaking discretion of 
the States, and to the extent practicable, must consult with State and 
local officials before implementing any such action. This rule provides 
clarification with respect to agency organization and practice and will 
have no substantive effect on the regulated public, therefore it will 
not have substantial direct effects on the States, on the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
It will not preempt any State laws. In accordance with section 6 of 
Executive Order 13132, FEMA determines that this rule will not have 
federalism implications sufficient to warrant the preparation of a 
federalism impact statement.

Paperwork Reduction Act of 1995

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.), an agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless the 
collection of information displays a valid OMB control number. This 
rule does not impose any new reporting or recordkeeping requirements, 
nor does it revise information collection requirements

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currently approved under the Paperwork Reduction Act of 1995.

Executive Order 12988, Civil Justice Reform

    FEMA has reviewed this rule under Executive Order 12988, ``Civil 
Justice Reform'' (61 FR 4729, published February 7, 1996). This rule 
meets applicable standards to minimize litigation, eliminate ambiguity, 
and reduce burden.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies, to the extent permitted by law, to prepare a 
written assessment of the effects of any Federal mandate in a proposed 
or final agency rule that may result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year. Though this rule will 
not result in such an expenditure, FEMA does discuss the effects of 
this rule elsewhere in this preamble.

Executive Order 12898, Environmental Justice

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'' (59 FR 7629, published February 16, 1994), FEMA 
incorporates environmental justice into its policies and programs. The 
Executive Order requires each Federal agency to conduct its programs, 
policies, and activities that substantially affect human health or the 
environment in a manner that ensures that those programs, policies, and 
activities do not have the effect of excluding persons from 
participation in programs, denying persons the benefits of programs, or 
subjecting persons to discrimination because of race, color, or 
national origin.
    FEMA believes that no action under this rule will have a 
disproportionately high or adverse effect on human health or the 
environment as it contains only a clarifying amendment regarding agency 
organization and practice and has no substantive effect on the 
regulated public. Accordingly, the requirements of Executive order 
12898 do not apply to this rule.

Congressional Review of Agency Rulemaking

    FEMA has sent this final rule to the Congress and to the General 
Accounting Office under the Congressional Review of Agency Rulemaking 
Act, (``Congressional Review Act'') Public Law 104-121. This rule is 
not a ``major rule'' within the meaning of the Congressional Review 
Act. This rule will not result in a major increase in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. It will not have 
``significant adverse effects'' on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
enterprises to compete with foreign-based enterprises.

Executive Order 13045, Protection of Children

    FEMA has analyzed this final rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or safety that might 
disproportionately affect children.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    FEMA has reviewed this rule under Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, published November 9, 2000). As this rule provides clarification 
with respect to agency organization and practice and has no substantive 
effect on the regulated public, it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes.

Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    FEMA has reviewed this rule under Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights'' (53 FR 8859, published March 18, 1988) as 
supplemented by Executive Order 13406, ``Protecting the Property Rights 
of the American People'' (71 FR 36973, published June 28, 2006). This 
rule will not affect a taking of private property or otherwise have 
taking implications under Executive Order 12630.

List of Subjects in 44 CFR Part 5

    Courts, Freedom of Information, Government employees.

0
For the reasons set forth above, FEMA amends 44 CFR part 5 as follows:

44 CFR Chapter 1--Federal Emergency Management Agency, Department 
of Homeland Security

Subchapter A--General

PART 5--[REVISED]

0
1. The authority citation for part 5 is revised to read as follows:

    Authority: 5 U.S.C. 552; 5 U.S.C. 301; 6 U.S.C. 101 et seq; 
Reorganization Plan No. 3 of 1978; E.O. 12127; and E.O. 12148.

0
2. Amend Sec.  5.80, by adding paragraph (d) to read as follows:


Sec.  5.80  Scope and applicability.

* * * * *
    (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.

    Dated: August 1, 2007.
R. David Paulison,
Administrator, Federal Emergency Management Agency.
 [FR Doc. E7-15224 Filed 8-3-07; 8:45 am]
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