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their evaluation of the probable or po- the Office of Management and Budget tential effect of that proposal on the do not object to the establishment of a privacy and other personal or property new system or records or to the alterrights of individuals.

ation of an existing system of records, (b) No later than 90 calendar days

or prior to the alteration of a system of

(b) No fewer than 30 calendar days records, the system manager respon

elapse from the date of submission of sible for the maintenance of that sys

the proposal to the Senate, the House tem of records shall notify the Privacy Appeals Officer of the proposed alter

of Representatives, and the Office of

Management and Budget without reation. The system manager shall include with the notification a completed

ceipt of an objection to the proposal.

The notice shall include all of the inFEMA Form 11-2. System of Records Covered by the Privacy Act of 1974, and

formation required to be provided in a justification for each system of

FEMA Form 11-2, System of Records records he proposes to alter. If it is de

Covered by the Privacy Act of 1974, and termined that the proposed alteration

such other information as the Director is in the best interest of the Govern

deems necessary. ment, then, the Director, or a designee thereof, shall submit, no later than 60

86.72 Effective date of new system of calendar days prior to the establish

records or alteration of an existing ment of that alteration, a report of the

system of records. proposal to the President of the Sen- Systems of records proposed to be esate, the Speaker of the House of Rep- tablished or altered in accordance with resentatives, and the Administrator, the provisions of this subpart shall be Office of Information and Regulatory effective no sooner than 30 calendar Affairs, Office of Management and days from the publication of the notice Budget for their evaluation of the prob- required by $6.71. able or potential effect of that proposal on the privacy and other personal or

Subpart F-Fees property rights of individuals. (c) The reports required by this regu

8 6.80 Records available at fee. lation are exempt from reports control. (d) The Administrator, Office of In

The system manager shall provide a formation and Regulatory Affairs, Of- copy of a record to a requestor at a fee fice of Management and Budget may prescribed in $6.85 unless the fee is waive the time requirements set out in waived under $6.82. this section upon a finding that a delay

(44 FR 50293, Aug. 27, 1979, as amended at 45 in the establishing or amending the

FR 17152, Mar. 18, 1980) system would not be in the public interest and showing how the public in

86.81 Additional copies. terest would be adversely affected if the waiver were not granted and other

A reasonable number of additional wise complying with OMB Circular A

copies shall be provided for the applica130.

ble fee to a requestor who indicates

that he has no access to commercial re[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980; 51 FR 34604, Sept. 30,

production services. 1986]

8 6.82 Waiver of fee. 86.71 Federal Register notice of estab- The system manager shall make one

lishment of new system or alter.
ation of existing system.

copy of a record, up to 300 pages, avail

able without charge to a requestor who Notice of the proposed establishment is an employee of FEMA. The system or alteration of a system of records

manager may waive the fee requireshall be published in the FEDERAL REG

ment for any other requestor if the ISTER, in accordance with FEMA proce

cost of collecting the fee is an unduly dures when:

large part of, or greater than, the fee, (a) Notice is received that the Sen

or when furnishing the record without ate, the House of Representatives, and

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)

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 op portunity 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.

96.83 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 $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 $5.44 (a) or (b), the administrative time limits prescribed in subsection (a)(6) of the FOLA (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 $5.44 (a) or (b). (52 FR 13679, Apr. 24, 1987) 86.84 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. $6.85 Reproduction fees.

(a) Duplication costs. (1) For copies of documents reproduced on a standard office copying machine in sizes up to 842x14 inches, the charge will be $.15 per page.

(2) The fee for reproducing copies of records over 842 x 14 inches or whose physical characteristics do not permit reproduction by routine electrostatic copying shall be the direct cost of reproducing the records through Government or commercial sources. If FEMA estimates that the allowable duplication charges are likely to exceed $25, it

(52 FR 13679, Apr. 24, 1987)

Subpart G-Exempt Systems of

Records

86.86 General exemptions.

(a) Whenever the Director, 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(1)(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) nature of the investigation, and this and (g) of the Privacy Act.

could enable them to avoid detection (1) Exempt systems. The following sys- or apprehension in the following ways: tems of records, which contain infor- (A) By discovering the collection of mation of the type described in 5 U.S.C. facts which would form the basis for 552(j)(2), shall be exempt from the pro- their arrest, (B) by enabling them to visions of 5 U.S.C. 552a listed in para- destroy evidence of criminal conduct graph (b) of this section.

which would form the basis for their

arrest, and (C) by learning that the General Investigative Files (FEMA/IG-2) Limited Access

criminal investigators had reason to

believe that a crime was about to be (2) Reasons for exemptions. (i) 5 U.S.C. committed, they could delay the com552a (e)(4)(G) and (f)(1) enable individ- mission of the crime or change the uals to be notified whether a system of scene of the crime to a location which records contains records pertaining to might not be under surveillance. them. The Federal Emergency Manage- Granting access to ongoing or closed ment Agency believes that application investigative files would also reveal inof these provisions to the above-listed vestigative techniques and procedures, system of records would give individ- the knowledge of which could enable uals an opportunity to learn whether individuals planning criminal activity they are of record either as suspects or to structure their future operations in as subjects of a criminal investigation; such a way as to avoid detection or apthis would compromise the ability of prehension, thereby neutralizing law the Federal Emergency Management enforcement officers' established invesAgency to complete investigations and tigative tools and procedures. Further, identify or detect violators of laws ad- granting access to investigative files ministered by the Federal Emergency and records could disclose the identity Management Agency or other Federal of confidential sources and other inagencies. Individuals would be able (A) formers and the nature of the informato take steps to avoid detection, (B) to tion which they supplied, thereby eninform co-conspirators of the fact that dangering the life or physical safety of an investigation is being conducted, (C) those sources of information by exposto learn the nature of the investigation ing them to possible reprisals for havto which they are being subjected, (D) ing provided information relating to to learn the type of surveillance being the criminal activities of those individutilized, (E) to learn whether they are uals who are the subjects of the invesonly suspects or identified law viola- tigative files and records; confidential tors, (F) to continue to resume their il- sources and other informers might legal conduct without fear of detection refuse to provide criminal investigaupon learning that they are not in a tors with valuable information if they particular system of records, and (G) to could not be secure in the knowledge destroy evidence needed to prove the that their identities would not be reviolation.

vealed through disclosure of either (ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and their names or the nature of the infor(1)(2), (3) and (5) enable individuals to mation they supplied, and this would gain access to records pertaining to seriously impair the ability of the Fedthem. The Federal Emergency Manage- eral Emergency Management Agency ment Agency believes that application to carry out its mandate to enforce of these provisions to the above-listed criminal and related laws. Additionsystem of records would compromise ally, providing access to records conits ability to complete or continue tained in the above-listed system of criminal investigations and to detect records could reveal the identities of or identify violators of laws adminis- undercover law enforcement personnel tered by the Federal Emergency Man- who compiled information regarding agement Agency or other Federal agen- individual's criminal activities, therecies. Permitting access to records con- by endangering the life or physical tained in the above-listed system of safety of those undercover personnel or records would provide individuals with their families by exposing them to possignificant information concerning the sible reprisals.

174-166 0-97-43

of

(iii) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (0)(4), which are dependent upon access having been granted to records pursuant to the provisions cited in paragraph (b)(2)(ii) of this section, enable individuals to contest (seek amendment to) the content of records contained in a system of records and require an agency to note an amended record and to provide a copy of an individual's statement (of disagreement with the agency's refusal to amend a record) to persons or other agencies to whom the record has been disclosed. The Federal Emergency Management Agency believes that the reasons set forth in paragraph (b)(2)(ii) of this section are equally applicable to this paragraph and, accordingly, those reasons are hereby incorporated herein by reference.

(iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of disclosures of records available to individuals named in the records at their request; such accountings must state the date, nature and purpose of each disclosure of a record and the name and address of the recipient. The Federal Emergency Management Agency believes that application of this provision to the above-listed system of records would impair the ability of other law enforcement agencies to make effective use of information provided by the Federal Emergency Management Agency in connection with the investigation, detection and apprehension of violators of the criminal laws enforced by those other law enforcement agencies. Making accountings of disclosure available to violators or possible violators would alert those individuals to the fact that another agency is conducting an investigation into their criminal activities, and this could reveal the geographic location of the other agency's investigation, the nature and purpose of that investigation, and the dates on which that investigation was active. Violators possessing such knowledge would thereby be able to take appropriate measures to avoid detection or apprehension by altering their operations, by transferring their criminal activities to other geographic areas or by destroying or concealing evidence which would form the basis for their arrest. In addition, providing violators with

accountings of disclosure would alert those individuals to the fact that the Federal Emergency Management Agency has information regarding their criminal activities and could inform those individuals of the general nature of that information; this, in turn, would afford those individuals a better opportunity to take appropriate steps to avoid detection or apprehension for violations of criminal and related laws.

(v) 5 U.S.C. 552a(c)(4) requires that an agency inform any person or other agency about any correction or notetion 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 records is proposed to be exempt from those provisions of 5 U.S.C. 552a relating to amendments of records as indicated in paragraph (b)(2)(iii) of this section, the Federal Emergency Management Agency believes that this provision should not be applicable to the above system of records.

(vi) 5 U.S.C. 552a(e)(4)(I) requires that an agency publish a public notice listing the categories of sources for information contained in a system of records. The categories of sources of this system of records have been published in the FEDERAL REGISTER in broad generic terms in the belief that this is all that subsection (e)(4)(I) of the Act requires. In the event, however, that this subsection should be interpreted to require more detail as to the identity of sources of the records in this system, exemption from this provision is necessary in order to protect the confidentiality of the sources of criminal and other law enforcement information. Such exemption is further necessary to protect the privacy and physical safety of witnesses and informants.

(vii) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order. The term maintain as defined in 5 U.S.C. 552a(a)(3) includes "collect” and “disseminate.” At the time that information is collected by the Federal Emergency Management Agency, there is often insufficient time to determine whether the information is relevant and necessary to accomplish a purpose of the Federal Emergency Management Agency; in many cases information collected may not be immediately susceptible to a determination of whether the information is relevant and necessary, particularly in the early stages of an investigation, and in many cases, information which initially appears to be irrelevant or unnecessary may, upon further evaluation or upon continuation of the investigation, prove to have particular relevance to an enforcement program of the Federal Emergency Management Agency. Further, not all violations of law discovered during a criminal investigation fall within the investigative jurisdiction of the Federal Emergency Management Agency; in order to promote effective law enforcement, it often becomes necessary and desirable to disseminate information pertaining to such violations to other law enforcement agencies which have jurisdiction over the offense to which the information relates. The Federal Emergency Management Agency should not be placed in a position of having to ignore information relating to violations of law not within its jurisdiction when that information comes to the attention of the Federal Emergency Management Agency through the conduct of a lawful FEMA investigation. The Federal Emergency Management Agency, therefore, believes that it is appropriate to exempt the above-listed system of records from the provisions of 5 U.S.C. 552a(e)(1).

(viii) 5 U.S.C. 552a(e)(2) requires that an agency collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about 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

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