[Federal Register Volume 79, Number 152 (Thursday, August 7, 2014)]
[Rules and Regulations]
[Pages 46190-46194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18709]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID FEMA-2012-0004]
RIN 1660-AA75
Debris Removal: Eligibility of Force Account Labor Straight-Time
Costs Under the Public Assistance Program for Hurricane Sandy
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule finalizes, without change, an interim final rule
that published in the Federal Register on November 9, 2012, authorizing
reimbursement of force account labor under the Public Assistance
Program for debris removal work related to Hurricane Sandy.
DATES: This final rule is effective September 8, 2014.
FOR FURTHER INFORMATION CONTACT: William Roche, Director, Public
Assistance Division, Federal Emergency Management Agency, 500 C Street
SW., Washington, DC 20472-3100, (phone) 202-212-2340; or (email)
[email protected].
SUPPLEMENTARY INFORMATION:
This rule finalizes, without change, an interim final rule (IFR)
that published in the Federal Register on November 9, 2012, authorizing
reimbursement of force account labor under the Public Assistance
Program for debris removal work related to Hurricane Sandy. Below, we
provide (1) general background on FEMA's debris removal program; (2) a
discussion of the specific IFR at issue, which deals with a narrow band
of debris removal activities related to Hurricane Sandy; and (3) a
discussion of comments received on the IFR. A series of regulatory
analyses and implementing language follow.
I. Background
Every year, disasters strike communities throughout the United
States. When an incident is of such magnitude that it is beyond the
capabilities of the State, Tribal and local governments to efficiently
respond, a Governor may request that the President declare that an
emergency or major disaster exists in the State, under the authority of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act), 42 U.S.C. 5121-5207.
If the President declares an emergency or major disaster, FEMA may
award Public Assistance grants to assist State and local governments
(including Indian Tribal governments) and certain private nonprofit
(PNP) organizations, as defined in subpart H of 44 CFR part 206
(collectively referred to as ``applicants,'' ``grantees,'' or
``subgrantees''), with the response to and recovery from major
disasters and emergencies. Specifically, the Public Assistance Program
provides assistance for debris removal, emergency protective measures,
and permanent restoration of infrastructure serving a public purpose.
Sections 403(a)(3)(A), 407, and 502(a)(5) of the Stafford Act
authorize FEMA to provide assistance to eligible applicants to remove
debris from public and private property following a Presidential major
disaster or emergency declaration, when in the public interest. See 42
U.S.C. 5170b(a)(3)(A), 5173, and 5192. Removal must be necessary to
eliminate immediate threats to lives, public health, and safety;
eliminate immediate threats of significant damage to improved public or
private property; or ensure the economic recovery of the affected
community-at-large.\1\ See 44 CFR 206.224(a). The debris must be the
result of the disaster and located in the disaster area, and the
applicant must have the legal responsibility to remove the debris. See
44 CFR 206.223(a). To ensure these requirements are met, FEMA has
issued extensive guidance on oversight processes and procedures to
monitor debris removal activities.
---------------------------------------------------------------------------
\1\ In 44 CFR 206.224, FEMA also defines debris removal to be in
the ``public interest'' when necessary to mitigate the risk to life
and property by removing substantially damaged structures and
associated appurtenances as needed to convert property acquired
through a FEMA hazard mitigation program to uses compatible with
open space, recreation, or wetlands management practices. See 44 CFR
206.224(a)(4).
---------------------------------------------------------------------------
In general, FEMA regulations at 44 CFR 206.228 authorize
reimbursement of overtime, but not regular time, for an applicant's own
labor forces and equipment, referred to as ``force account labor,''
performing debris removal work. The regular time (also called
``straight-
[[Page 46191]]
time'') salaries and benefits of permanently employed personnel are
generally not eligible in calculating allowable costs. However, FEMA
can reimburse reasonable costs associated with a debris contract,
including the cost of contract workers' regular time as well as
overtime. This creates an incentive for applicants to contract for
debris removal work, even after relatively small events which could
have been handled in part, or entirely, by an applicant's employees.
State and local applicants have long requested reimbursement from FEMA
for straight-time salaries for their force account labor who were
pulled away from their normal day-to-day work to perform debris removal
operations.
The Fiscal Year (FY) 2007 Department of Homeland Security
Appropriations Act (Appropriations Act), Public Law 109-295, authorized
FEMA to conduct a Public Assistance Pilot Program to reduce the costs
to the Federal government of providing debris-related assistance to
States and local governments, increase flexibility in the
administration of assistance, and expedite the provision of assistance
under sections 403(a)(3)(A), 502(a)(5), and 407 of the Stafford Act. 6
U.S.C. 777. Under the Force Account Labor provision of the Pilot
Program, FEMA reimbursed the straight-time salaries and benefits of the
applicant's employees who performed disaster-related debris and
wreckage removal work. FEMA's objective in reimbursing force account
labor was to provide applicants the opportunity and incentive to use
their own employees for debris removal activities in situations where
applicants determine that is the most appropriate method to perform the
work. In its evaluation of the Pilot Program, FEMA found that debris
removal operations and monitoring performed by force account labor
improved efficient and timely debris removal by starting operations
more expeditiously, reducing delays related to procuring and mobilizing
contractors, and decreasing complaints and negotiations over costs and
scopes of work. The Pilot Program ended on December 31, 2008.
II. Discussion of the Rule
This rule finalizes, without change, the IFR that published in the
Federal Register on November 9, 2012 (77 FR 67285). The IFR implemented
the Force Account Labor procedure of the Public Assistance Pilot
Program for debris removal work related to Hurricane Sandy, a
catastrophic disaster event of unprecedented magnitude and severity.
The geographic breadth of this storm was exceptional, covering major
portions of the Mid-Atlantic and Northeast, and bringing devastation to
much of the Eastern seaboard. In response to this event, FEMA issued
the IFR to accelerate the nation's recovery by maximizing the use of
force account labor.
The IFR revised 44 CFR 206.228(a)(2) to allow for the reimbursement
of straight-or regular time salaries and benefits of a grantee's or
subgrantee's permanently employed personnel for debris removal work
performed due to Hurricane Sandy. In order to receive reimbursement,
force account labor employees must work exclusively on Hurricane Sandy
debris removal. They cannot combine Hurricane Sandy debris removal work
with their normal work-related tasks or any other tasks, including
tasks related to emergencies or major disasters declared by the
President before October 27, 2012. Finally, reimbursement is restricted
to 30 consecutive calendar days. These provisions provide an incentive
to applicants to maximize the use of their force account labor, thus
lessening the need to secure and oversee contract labor, and
encouraging them to allot 100 percent of the work time of their regular
staff to Hurricane Sandy debris removal, thereby contributing to a
quicker and more efficient recovery.
Eligible activities include disaster-related debris and wreckage
removal work for any major disaster or emergency declared by the
President on or after October 27, 2012, in response to Hurricane Sandy
under Category A, Debris Removal, and/or Category B, Emergency
Protective Measures. In practice, FEMA treats debris removal work the
same whether it is under Category A or under Category B. Therefore, the
IFR made straight-or regular time salaries and benefits for an eligible
applicant's force account labor eligible in calculating the cost of
eligible Category A and/or Category B debris removal work. The IFR did
not allow for the reimbursement of straight- or regular time salaries
and benefits of a grantee's or subgrantee's permanently employed
personnel for any other emergency protective measures under Category B.
Non-Substantive Changes
The IFR added a reference to ``grantee'' in paragraph (a)(2) of
section 206.228; previously that section referred only to
``subgrantees.'' The eligibility of force account labor costs outlined
in 44 CFR 206.228(a)(2) applies to grantees as well as subgrantees.
States and Tribes act as the grantees for the Public Assistance
Program. Applicants who are successful in obtaining Public Assistance
are identified as ``subgrantees.'' Since State, Tribal, and local
government agencies are eligible applicants for Public Assistance,
States may act as the grantee, as well as the subgrantee. While most
work is performed by the subgrantees, it is possible that grantees
could perform eligible debris removal and/or permanent work, and
therefore incur straight-time force account labor costs for those
activities. To be more accurate, the IFR added ``grantee'' to paragraph
(a)(2) of section 206.228. The IFR also established a cross reference
to the exception for host state evacuation and sheltering in 44 CFR
206.202.
Sandy Recovery Improvement Act of 2013 (SRIA)
After publication of the IFR, Public Law 113-2 (SRIA) was enacted.
Section 1102 of SRIA authorizes FEMA to implement a pilot program for
Public Assistance ``alternative procedures'' until such time as FEMA
can promulgate such procedures via notice and comment rulemaking. 42
U.S.C. 5189f(f). One of these alternative procedures includes
reimbursement of straight time for debris removal work. 42 U.S.C.
5189f(e)(2)(D). FEMA initiated a pilot program for debris alternative
procedures, including the provision for reimbursement of straight time
for debris removal work, in June of 2013. FEMA plans to use information
and data gathered from the pilot program to initiate a separate
rulemaking related to more comprehensive implementation of the debris
alternative procedures under section 1102.
III. Discussion of Public Comments
FEMA received three comments on the IFR (two private associations,
one private citizen). One commenter recommended that FEMA reimburse
``over-time hours of emergency and city personnel or any hours that are
expended beyond the normal working conditions.'' FEMA currently does
reimburse overtime force account labor costs for all emergency work.
See 44 CFR 206.228(a)(2). The IFR allowed for reimbursement of straight
time for certain Hurricane Sandy-related debris removal activities, for
the reasons described above.
One commenter supported the IFR but recommended that FEMA provide
more flexibility by allowing waivers and extensions to the 30-day
limitation. FEMA respectfully declines to incorporate the commenter's
recommendation. Waivers and extensions would create an administrative
burden and would ultimately delay debris removal
[[Page 46192]]
operations. This rule was instituted in the weeks immediately following
Sandy to support as expeditious a recovery as possible from that storm;
the focus of the rule was on recovery from the immediate aftermath.
FEMA chose 30 days to capture that period. Therefore, FEMA has elected
not to allow waivers of and extensions to the 30-day limitation.
One commenter inquired whether the IFR applied to eligible
nonprofit entities (specifically rural electric cooperatives). FEMA
responds that nonprofit entities, including rural electric
cooperatives, are eligible for Public Assistance pursuant to 44 CFR
206.221 and 44 CFR 206.222. The straight- or regular time salaries and
benefits of personnel of eligible nonprofit entities, including rural
electric cooperatives, would be eligible if they otherwise meet the
criteria of the IFR, that is, the debris removal work is performed as
the result of Hurricane Sandy and is the only work performed by
straight-time personnel for the relevant timeframe.
The commenter also suggested that FEMA apply the IFR to all major
disasters and emergencies rather than limiting it to Hurricane Sandy
work. FEMA plans to use information and data gathered from the pilot
program to initiate a separate rulemaking related to more comprehensive
implementation of the debris alternative procedures under section 1102.
IV. Regulatory Analysis
A. National Environmental Policy Act (NEPA)
Under the National Environmental Policy Act of 1969 (NEPA), as
amended, 42 U.S.C. 42 U.S.C. 4321 et. seq., an agency must prepare an
environmental assessment or environmental impact statement for any
rulemaking that significantly affects the quality of the human
environment. As explained below, FEMA has determined that this
rulemaking does not significantly affect the quality of the human
environment and consequently has not prepared an environmental
assessment or environmental impact statement.
Section 316 of the Stafford Act exempts from the NEPA requirements
debris removal actions undertaken under Sections 402, 403, 407, or 502
of the Act. Rulemaking actions related to actions statutorily excluded
are not themselves excluded from the application of NEPA. NEPA
implementing regulations governing FEMA activities at 44 CFR
10.8(d)(2)(ii) categorically exclude the preparation, revision, and
adoption of regulations from the preparation of an EA or EIS, where the
rule relates to actions that qualify for categorical exclusions. FEMA's
``List of exclusion categories'' at 44 CFR 10.8(d)(2)(ii) categorically
excludes the preparation, revision, and adoption of regulations related
to actions that qualify for categorical exclusions. Further, essential
assistance under section 403 and debris removal under section 407 of
the Stafford Act are categorically excluded at 44 CFR
10.8(d)(2)(xix)(B) and (C). These categorical exclusions cover all
debris removal actions under the Stafford Act.
Finally, FEMA has evaluated the potential for extraordinary
circumstances as required in 44 CFR 10.8(d)(3) and determined that the
procedure authorized under this rule does not change its environmental
effect. The straight-time force account labor provision does not change
the nature or extent of debris removal activities reimbursed by FEMA.
The potential for reimbursement of straight-time force account labor
provides applicants with more flexibility to perform debris removal
work with their own employees in addition to, or in place of,
contractors, but does not affect the eligibility of debris removal
actions under this Program. An environmental assessment was not
prepared for this rulemaking action because a categorical exclusion
applies and no extraordinary circumstances exist.
B. Paperwork Reduction Act of 1995
As required by the Paperwork Reduction Act of 1995 (PRA), as
amended, 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 control number.
The collection of information associated with the Public Assistance
Program is approved under OMB Control No. 1660-0017, which expires on
June 30, 2016. This rule does not contain any new collections of
information.
C. Executive Order 12866, Regulatory Planning and Review & Executive
Order 13563, Improving Regulation and Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has not been designated a ``significant
regulatory action,'' under section 3(f) of Executive Order 12866.
Accordingly, the rule has not been reviewed by the Office of Management
and Budget.
The rule provides (unquantified) benefits that are vitally
important to further FEMA's mission. This rule increases efficiency,
flexibility, and reduces the costs of performing debris removal work
after Hurricane Sandy. The rule affects States, Indian Tribal
governments, local governments, as well as certain private non-profit
organizations that have been affected by Hurricane Sandy, by maximizing
the use of force account labor for debris removal, thus accelerating
the recovery process.
Review of FEMA's existing debris regulations revealed that they
could be expanded to provide for more efficient and timely debris
removal after a disaster. As discussed earlier in this preamble, the
reimbursement of force account labor for debris removal under the Pilot
Program improved efficient and timely debris removal. In reimbursing
force account labor, FEMA provided applicants with an incentive to
perform the work in-house, as well as improve oversight of debris
removal operations. Therefore, FEMA is expanding the debris regulations
to incorporate this procedural improvement in response to Hurricane
Sandy.
D. Executive Order 13132, Federalism
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 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, on the relationship between the national
government and 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.
FEMA has reviewed this rule under Executive Order 13132 and has
concluded that this rule does not have federalism implications as
defined by Executive Order 13132. FEMA has determined that this rule
does not significantly affect the rights, roles, and responsibilities
of States, and involves no preemption of State law nor does it
[[Page 46193]]
limit State policymaking discretion. This rulemaking amends a voluntary
grant program that may be used by State, local and Tribal governments
and eligible private nonprofit organizations to receive Federal grants
to assist in the recovery from disasters. States are not required to
seek grant funding, and this rulemaking does not limit their
policymaking discretion.
E. 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, Feb. 16, 1994), as amended, FEMA
incorporates environmental justice into its policies and programs.
Executive Order 12898 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 has incorporated environmental justice
into its programs, policies, and activities, as well as this
rulemaking. This proposed rulemaking contains provisions that ensure
that FEMA's activities will not have a disproportionately high or
adverse effect on human health or the environment or subject persons to
discrimination because of race, color, or national origin.
The purpose of this rule is to implement a debris-related Public
Assistance Pilot Program procedure. This rule reimburses straight- or
regular time wages for the permanent employees of Public Assistance
applicants while they perform disaster-related debris and wreckage
removal activities related to Hurricane Sandy for a period of 30
consecutive calendar days. Reimbursing straight- or regular time for an
applicant's permanent employees who perform debris removal work will
provide an incentive for applicants to complete debris removal work
themselves rather than entering into contracts to perform the work.
Removing debris expeditiously provides value to the American people by
creating safer communities and reducing loss of life and property,
enables communities to recover more rapidly from disasters, and lessens
the financial impact of disasters on individuals, the United States
Department of the Treasury, State, local, and Tribal communities.
No action that FEMA can anticipate under this rule will have a
disproportionately high and adverse human health or environmental
effect on any segment of the population. Accordingly, the requirements
of Executive Order 12898 do not apply to this rule.
F. 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, Nov. 9, 2000). Under Executive Order 13175, FEMA may not issue a
regulation that has Tribal implications, that imposes substantial
direct compliance costs on Indian Tribal governments, and that is not
required by statute. In reviewing this rule, FEMA finds that because
Indian Tribal governments are potentially eligible applicants under the
Public Assistance Program, this rule may impact Indian Tribal
governments. However, this rule does not have ``tribal implications''
as defined in the Executive Order. Eligibility to receive reimbursement
for force account labor for debris removal operations 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. This rule does not impose substantial
direct compliance costs on Indian Tribal governments nor does it
preempt tribal law, impair treaty rights nor limit the self-governing
powers of Indian Tribal governments.
G. Regulatory Flexibility Act Statement
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and
section 213(a) of the Small Business Regulatory Enforcement Fairness
Act of 1996, 5 U.S.C. 601 note, agencies must consider the impact of
their rulemakings on ``small entities'' (small businesses, small
organizations and local governments). The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
This rule did not require a notice of proposed rulemaking and therefore
is exempt from the requirements of the RFA.
H. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et
seq., requires each Federal agency, 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 (adjusted annually for
inflation) in any one year. UMRA exempts from its definition of
``Federal intergovernmental mandate'' regulations that establish
conditions of Federal assistance or provide for emergency assistance or
relief at the request of any State, local, or Tribal government.
Therefore, this rule is not an unfunded Federal mandate under that Act.
I. Executive Order 12988, Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, Feb. 7,
1996), to minimize litigation, eliminate ambiguity, and reduce burden.
J. 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, Mar. 18, 1988) as supplemented by
Executive Order 13406, ``Protecting the Property Rights of the American
People'' (71 FR 36973, June 28, 2006). Sections 403(a)(3)(A) and 407 of
the Stafford Act, 42 U.S.C. 5170b and 5173, respectively, provide FEMA
authority to fund debris removal from private property provided that
the State or local government arranges an unconditional authorization
for removal of the debris, and agrees to indemnify the Federal
government against any claim arising from the removal. The regulations
implementing Sections 403 and 407 of the Stafford Act at 44 CFR 206.224
establish the requirement that debris removal be in the ``public
interest'' in order to be eligible for reimbursement. Generally, debris
removal from private property following a disaster is the
responsibility of the property owner. However, large-scale disasters
may deposit enormous quantities of debris on private property over a
large area resulting in widespread immediate threats to the public-at-
large. In these cases, the State or local government may need to enter
private property to remove debris to: Eliminate immediate threats to
life, public health, and safety; eliminate immediate threats of
significant damage to improved property; or ensure economic recovery
[[Page 46194]]
of the affected community to the benefit of the community-at-large. In
these situations, debris removal from private property may be
considered to be in the public interest and thus may be eligible for
reimbursement under the Public Assistance Program. See 44 CFR
206.224(b). FEMA will work with States affected by a disaster to
designate those areas where the debris is so widespread that removal of
the debris from private property is in the ``public interest'' pursuant
to 44 CFR 206.224, and thus is eligible for FEMA Public Assistance
reimbursement on a case-by-case basis. This rule will not affect a
taking of private property or otherwise have taking implications under
Executive Order 12630.
K. Congressional Review of Agency Rulemaking
FEMA is sending this rule to Congress and to the Government
Accountability Office pursuant to the Congressional Review of Agency
Rulemaking Act (Congressional Review Act)(CRA), Public Law 104-121, 110
Stat. 873 (March 29, 1996) (5 U.S.C. 801 et seq). This rule is not a
``major rule'' within the meaning of the CRA.
List of Subjects in 44 CFR Part 206
Administrative practice and procedure, Coastal zone, Community
facilities, Disaster assistance, Fire prevention, Grant programs-
housing and community development, Housing, Insurance,
Intergovernmental relations, Loan programs-housing and community
development, Natural resources, Penalties, Reporting and recordkeeping
requirements.
PART 206--FEDERAL DISASTER ASSISTANCE
Accordingly, 44 CFR 206.228 of the interim final rule published on
November 9, 2012 (77 FR 67285) is adopted as a final rule without
change.
Dated: August 1, 2014.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2014-18709 Filed 8-6-14; 8:45 am]
BILLING CODE 9111-23-P