[Federal Register Volume 73, Number 96 (Friday, May 16, 2008)]
[Rules and Regulations]
[Pages 28357-28361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10936]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 153
[Docket ID FEMA-2005-0001; Legacy ID DHS-2005-0006]
RIN 1660-AA34
Assistance Program Under the 9/11 Heroes Stamp Act of 2001
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The 9/11 Heroes Stamp Act of 2001 directed the United States
Postal Service to issue a semipostal stamp and distribute the proceeds
through the Federal Emergency Management Agency (FEMA) to the families
of emergency relief personnel killed or permanently disabled while
serving in the line of duty in connection with the terrorist attacks
against the United States on September 11, 2001. In response, FEMA
issued interim regulations that governed the distribution of those
funds. Now that all funds have been distributed and all appeals
resolved, FEMA is issuing this Final rule to remove the interim
regulations from the Code of Federal Regulations.
DATES: This final rule is effective May 16, 2008.
FOR FURTHER INFORMATION CONTACT: Jotham Allen, Office of Chief Counsel,
Federal Emergency Management Agency, Department of Homeland Security,
500 C Street, SW., Room 840, Washington, DC 20472, (phone) 202-
[[Page 28358]]
646-1957, (facsimile) 202-646-4536, or (e-mail) [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The 9/11 Heroes Stamp Act of 2001, Public Law 107-67, sec. 652, 115
Stat. 557 (Nov. 12, 2001) (Heroes Stamp Act), directed the United
States Postal Service (USPS) to issue a semipostal stamp and distribute
the proceeds through the Federal Emergency Management Agency (FEMA) to
the families of emergency relief personnel killed or permanently
disabled while serving in the line of duty in connection with the
terrorist attacks against the United States on September 11, 2001.
A semipostal stamp is a type of postage that is sold for a value
greater than that of a regular first class stamp. The proceeds from the
price differential between the sale price of the stamp and the cost of
the postage fund the distribution, minus the USPS' cost to produce and
distribute the stamps. No administrative costs were deducted by FEMA.
The USPS issued the Heroes semipostal stamp in June 2002, and stopped
selling it on December 31, 2004. The sum of $10,565,073.61 was provided
to FEMA by USPS from stamp sales during that time period.
On July 26, 2005, FEMA published an interim rule at 70 FR 43214
establishing a program to distribute the funds raised from the sale of
the Heroes semipostal stamp. Under the program, eligible claimants were
those emergency relief personnel acting in their official capacity who
were permanently physically disabled, or the families of such personnel
who were killed in the line of duty while serving at the World Trade
Center, Pentagon, or Shanksville, PA site in connection with the
terrorist attacks against the United States on September 11, 2001. In
determining whether a claimant had a permanent physical disability,
FEMA relied on determinations made by appropriate Federal, State, and
local agencies, as well as appropriate private entities.
The interim rule also created an appeals process. This process
allowed an applicant to appeal a determination made by FEMA that the
applicant was not eligible. The applicant was required to submit a
notice of intent to appeal within 15 calendar days of the issuance of
FEMA's determination of eligibility. The written appeal could not
exceed 15 pages, exclusive of supporting documentation, and had to be
submitted within 60 calendar days of the issuance of FEMA's
determination of eligibility. New documentation was accepted on appeal.
Appeals determinations were made by the Appeals Specialist in FEMA's
Office of Dispute Resolution.
The amount of assistance granted under the Heroes Stamp Act was
within FEMA's discretion. The interim final rule established that FEMA
would, to the extent possible, distribute the funds equally among all
eligible claimants until the fund was liquidated. Multiple
distributions were allowed with monies set aside for applicants who
appealed their initial determination of ineligibility. On December 7,
2005, FEMA published a notice (70 FR 72845) that announced that the
application period for the Assistance Program Under the 9/11 Heroes
Stamp Act of 2001 would run from December 2, 2005 to April 3, 2006.
Eligibility determinations were made by the Heroes Stamp Panel who
conducted nine meetings between February and November 2006 to make the
determinations. Applicants were considered on a rolling basis and were
informed of their eligibility decisions by United States mail. Of the
1,945 total applications received during the application period, the
Panel deemed 1,356 eligible. Each applicant received a letter notifying
them of their eligibility determination, and for those deemed eligible,
FEMA provided an Electronic Funds Transfer form to be completed and
returned to FEMA. Between November 2006 and April 2007, FEMA
distributed $7,400 to each eligible applicant, who supplied the
necessary banking information for the Electronic Funds Transfer.
Of the 589 applicants found ineligible, 64 submitted appeals.
During the appeals process, 21 of these applicants submitted additional
information and were found eligible. This brought the total number of
eligible applicants to 1,377. In July 2007, the remaining amount of the
fund was distributed. In total, 1,357 of the eligible applicants
received $7,672.53; the final 20 applicants received $7,672.52. This
difference was required in order to liquidate the entire amount of the
funds raised.
II. Discussion of Public Comments
FEMA received 36 comments from the public regarding the interim
rule. The comments received, together with FEMA's responses, are set
forth below. All previously published rulemaking documents, as well as
all comments received are available in the public docket for this
rulemaking. The public docket for this rulemaking is available online
by conducting a search for Docket ID FEMA-2005-0001 or Legacy ID DHS-
2005-0006, at the Federal e-Rulemaking Portal at www.regulations.gov.
Continuation of semipostal stamp: Two comments suggested that the
Heroes semipostal stamp should be continued. FEMA could not implement
this suggestion. The Heroes Stamp Act specified that the stamp be
issued for such period of time that USPS considered necessary and
appropriate, but in no event could it continue issuing the stamp after
December 31, 2004. USPS discontinued selling the Heroes semipostal
stamp on December 31, 2004.
Eligibility: Seven comments suggested that iron, steel, and
construction workers should be included in the definition of emergency
relief personnel; one comment expressed concern that HAZMAT response
teams might not be eligible under the program; seven comments suggested
that the funds should be available to all victims of September 11,
2001, not just emergency relief personnel; three comments suggested
that non-uniformed volunteers should be eligible to receive funds; and
another commenter suggested that the funds should only be distributed
to rescue workers and emergency volunteers who have been disabled and
that the funds should not be distributed to the police and firefighter
families unless there are extenuating circumstances.
While FEMA recognizes that iron, steel, and construction workers
performed an invaluable service in response to the terrorist attacks of
September 11, 2001, FEMA determined that these workers did not fall
within the statutory definition of emergency relief personnel set out
in the Heroes Stamp Act. The statutory definition of emergency relief
personnel included a specific list of occupations, which did not
include iron, steel, or construction workers. It included firefighters,
law enforcement officers, paramedics, emergency medial technicians, and
members of the clergy. The Heroes Stamp Act did provide for inclusion
in that definition ``other individuals (including employees of legally
organized and recognized volunteer organizations, whether compensated
or not) who, in the course of professional duties, respond to fire,
medical, hazardous material, or other similar emergencies.'' FEMA
determined that iron, steel, and construction workers do not fall under
the statutory definition because they do not typically respond, in the
course of their professional duties, to fire, medical, hazardous
material, or other similar emergencies.
The language of the statute also limited FEMA from distributing the
[[Page 28359]]
funds to all victims of the September 11, 2001 attacks, or to all
individuals who provided assistance. The Heroes Stamp Act directed that
the funds were for emergency workers who had been permanently disabled
and the families of emergency workers killed. The Heroes Stamp Act
contained no provisions regarding other civilian victims. Furthermore,
the Act did not give FEMA discretion relating to need or extenuating
circumstances. It was left to FEMA's discretion to determine the
distribution of the funds, and it decided to distribute funds equally
among all eligible applicants, including the families of police and
firefighters.
With respect to HAZMAT responders, FEMA did consider them to be in
an eligible class of responders. The interim rule used the same
definition for emergency relief personnel as the Heroes Stamp Act,
which includes response to hazardous material: ``firefighters, law
enforcement officers, paramedics, emergency medical technicians,
members of the clergy, or other individuals * * * who, in the course of
professional duties, respond to fire, medical, hazardous material, or
other similar emergencies'' (emphasis added). Although FEMA did not
keep a tally sheet of each class of worker who received funds from sale
of the stamp, FEMA would have considered a HAZMAT worker to be well
within the statutory definition of emergency relief personnel set out
in the Heroes Stamp Act.
Amount of funds distributed to each applicant: Three comments
suggested that the funds raised through the sale of the Heroes
semipostal stamp should be divided equally among all eligible
applicants, while one comment suggested that those applying on behalf
of deceased individuals should receive larger distribution than
permanently disabled applicants. It was also suggested that geographic
cost of living differences should be taken into account.
The Heroes Stamp Act left the manner of distribution within FEMA's
discretion. The funds were, to the extent possible, distributed equally
among the eligible applicants. Factors considered by FEMA in its
decision included the limited funds available to distribute, FEMA's
limited ability to assess degrees of disability, and an inherent sense
of fairness in providing everyone the same amount.
Interest: One comment questioned whether interest was earned on the
funds, and suggested that any earned interest should be distributed to
the applicants. Interest was not earned on the funds. Funds generated
as the result of a statute, such as the Heroes Stamp Act, that
authorizes the imposition and collection of specific charges and the
use of the funds generated, are appropriated funds. In the absence of
an express provision in the statute to the contrary, the funds are
subject to the various restrictions and limitations on the uses of
appropriated moneys (35 Comp. Gen. 615 (1956), 57 Comp. Gen. 311
(1978)). Given that these funds are appropriations, and lacking any
specific statutory authority to invest and retain interest in the
established fund or account, the accretions would have been required to
be deposited to the Miscellaneous Receipts of the Treasury. (31 U.S.C.
3302) FEMA was prohibited from distributing any earned interest to the
applicants, and therefore opted not to deposit the funds in an interest
bearing account.
Distribution by FEMA: One comment asked why FEMA was distributing
the funds. In the Heroes Stamp Act, Congress directed USPS to transfer
the funds to FEMA to carry out distribution.
Date of distribution unclear: Three comments noted that the interim
final rule did not include a date of distribution. A number of factors
precluded FEMA from providing a date of distribution in the interim
rule. First, the interim final rule did not include an application
period. At that point, before the application period had been
determined, it would not have been feasible to set a date of
distribution. Additionally, when the interim rule was published FEMA
had no way to determine the number of applications it would receive.
Finally, because funds were distributed through Electronic Funds
Transfer, the timing of distribution to each applicant depended on how
quickly the applicant provided banking information.
Complicated application process: One comment stated that the
application process was too complicated. FEMA made every effort to make
the application process as simple as possible. The application
contained detailed instructions, FEMA set up a dedicated phone number
and e-mail address for questions or concerns, and questions were
answered clearly and promptly. Additional information, including a copy
of the interim rule was made available on the United States Fire
Administration's Web site.
Unclear appeal process: Two commenters stated that the interim
final rule was unclear regarding timelines and deadlines for the
appeals process. FEMA disagrees. To appeal an ineligibility
determination, applicants were required to submit to FEMA's Appeals
Specialist a notice of intent to appeal within 15 calendar days of the
issuance of FEMA's determination of eligibility. The notice was
required to contain a brief statement explaining why the applicant
believed the determination was incorrect. Within 60 calendar days after
the issuance of FEMA's determination, the applicant was required to
submit their full written appeal, not to exceed 15 pages exclusive of
supporting documentation. The address to submit the notice of intent to
appeal and the appeal were also provided. This information was detailed
in Sec. 153.8 of the rule. It was also restated, along with the reason
for their denial, in the letters that were sent to applicants who were
denied.
Contact family of victims: One comment suggested that applications
from affected personnel or their survivors should be compared to known
names of victims to make sure no families are missed. FEMA made every
effort to publicize the Heroes Stamp Program to ensure that all
potentially eligible people would be aware of the program and its
requirements. In addition to the interim rule and postings on the
United States Fire Administration Web page, several outreach efforts
were conducted prior to and early in the application process. These
included face to face briefings with impacted New York City agencies
and their labor unions, and discussions with agencies in Shanksville,
PA, and emergency relief agencies in areas surrounding the Pentagon.
Broadcast e-mails also were forwarded to all of the urban search and
rescue (USAR) teams that assisted at the three locations. The media
also carried stories regarding the availability of the program and how
to apply. Finally, the New York City Police Department, Fire
Department, and Port Authority all cooperated and coordinated with the
Heroes Stamp Project office by providing special assistance and
individual notification directly to survivors of the deceased about how
to avail themselves of the program.
Permanent disability should not be required: One comment suggested
that eligible injuries should not be required to be permanent
disabilities, and two comments suggested that those with permanent
mental disabilities should be eligible as well as those with permanent
physical disabilities. The Heroes Stamp Act specifically limited the
assistance to emergency relief personnel killed or permanently
disabled. Congress left FEMA no discretion in this area. The Heroes
Stamp Act did not, however, define the term ``permanently disabled''.
Within its discretion, FEMA decided that the intent of the Heroes Stamp
Act
[[Page 28360]]
was best met by interpreting that term to mean physically disabled.
Validating ``permanent mental disabilities'' was found to be too
difficult. Further, considering the relatively small amount of funds
FEMA had to distribute, it was determined that further widening
eligibility would further reduce the amount of funds available for
distribution to those with clear cut permanent physical disabilities.
Focus on Pentagon and Shanksville, PA: One comment suggested that
the program should focus on those who responded to the events in
Shanksville, PA and at the Pentagon. The Heroes Stamp Act directed that
the funds be made available to the families of emergency workers killed
or permanently disabled while serving in the line of duty while
responding to the terrorist attacks against the United States on
September 11, 2001. FEMA believed that the Congressional intent was for
the funds to be available to personnel injured or killed in response to
all of the terrorist attacks against the United States on September 11,
2001. Since the terrorist attacks on September 11, 2001 took place at
the World Trade Center, the Pentagon, and Shanksville, Pennsylvania,
the interim rule made clear that all three locations were included in
the program.
Portion for support agencies: One comment suggested that a portion
of the funds should be directed to nonprofit World Trade Center
agencies. The Heroes Stamp Act was clear that the funds were to be
distributed to the emergency relief workers themselves or their
families. The interim rule followed this statutory language. Congress
left FEMA no discretion in this area.
Original intent of legislation: Two comments asked that FEMA follow
the original intent of the Heroes Stamp Act. FEMA agreed. The Heroes
Stamp Act states that the semipostal stamp was to be issued ``in order
to afford the public a direct and tangible way to provide assistance to
the families of emergency relief personnel killed or permanently
disabled in the line of duty in connection with the terrorist attacks
against the United States on September 11, 2001.'' The Heroes Stamp Act
directed FEMA to carry out this purpose. FEMA, within its discretion,
promulgated the interim rule and distributed the funds in order to best
carry out this intent.
Determinations: One comment suggested that the interim rule was
unclear as to who would review applications and make final
determinations on eligibility. The Heroes Stamp Act contained no
provisions relating to the review process. Within its discretion, FEMA
formed a Heroes Stamp Panel which conducted 9 meetings between February
and November 2006 to make the final eligibility determinations on all
1,945 applications. The panel's five members represented FEMA's Office
of Chief Counsel (formerly the Office of General Counsel), the Office
of Legislative Affairs, and the United States Fire Administration. In
making their final eligibility determinations, these individuals
largely relied upon determinations of permanent physical disability
made by appropriate Federal, State, and local agencies, as well as
appropriate private entities.
III. Regulatory Requirements
A. Administrative Procedure Act
As noted in the interim rule, FEMA found good cause under 5 U.S.C.
553(d)(3) to issue an interim rule which would take effect upon the
closure of the comment period because delay would be impracticable in
light of the eligible individuals' need for relief. FEMA also noted
that prompt disbursement of the benefits from the Heroes Stamp sales
proceeds was in the public interest. FEMA received no adverse comments
as to the finding of good cause.
Now that all funds have been distributed and all appeals resolved,
FEMA is removing the regulatory text from the Code of Federal
Regulations. FEMA again finds good cause not to take public comment or
wait 30 days before making this rule effective under 5 U.S.C. 553(b)
and (d). Because all of the funds available from the sale of the Heroes
Stamp have been distributed, and all appeals have been resolved, there
is no longer any need for these regulations. Allowing public comment
and/or delaying the effectiveness of this rule for 30 days is
unnecessary.
B. Executive Order 12866, Regulatory Planning and Review
FEMA prepared and reviewed this rulemaking under the provisions of
Executive Order 12866, Regulatory Planning and Review. Although the
interim rule was determined to be a significant, but not economically
significant regulatory action, now that all funds have been distributed
and all appeals resolved these regulations no longer serve a purpose to
FEMA or the public. OMB has determined that this rule is not a
significant regulatory action. OMB has not reviewed this rule.
C. 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.
D. National Environmental Policy Act (NEPA)
In the interim rule, FEMA determined that this rule fell within the
exclusion category of 44 CFR 10.8(d)(2)(ii), which excludes from NEPA
requirements the preparation, revision, adoption of regulations,
directives, manuals, and other guidance documents related to actions
that qualify for categorical exclusions. No commenters disagreed with
our determination. The rulemaking provided for disbursement of funds
received from the sale of the Heroes Stamp to emergency relief
personnel who were permanently disabled while serving in the line of
duty in connection with the terrorist attacks against the United States
on September 11, 2001, or to the families of such personnel who were
killed in such line of duty. The rule had no significant effect on the
human environment. Because no other extraordinary circumstances have
been identified, this rule does not require the preparation of either
an environmental assessment or an environmental impact statement as
defined by NEPA.
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, February 16, 1994, each Federal agency is
required 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, denying persons
benefits of our programs, or subjecting persons to discrimination
because of their race, color, or national origin.
This final rule removes regulations that implemented the 9/11
Heroes Stamp Act of 2001. The Heroes Stamp Act provided for the sale of
the Heroes Stamp and for disbursement of the proceeds to emergency
relief personnel who were permanently disabled while serving in the
line of duty in connection with the terrorist attacks against the
United States on September 11, 2001, or to the families of such
personnel who were killed in such line of duty. There were no effects
on human health or the environment as a result of this
[[Page 28361]]
rulemaking, and the Heroes Stamp funds were distributed without regard
to race, color, or national origin; thus the requirements of Executive
Order 12898 do not apply to this rule.
F. Congressional Review of Agency Rulemaking
FEMA has sent this final rule to the Congress and to the Government
Accountability Office under the Congressional Review of Agency
Rulemaking Act, 5 U.S.C. 801-808. The rule is not a ``major rule''
within the meaning of that 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
United States-based enterprises to compete with foreign-based
enterprises.
G. Unfunded Mandates Reform Act
This rule is not an unfunded mandate within the meaning of the
Unfunded Mandates Reform Act of 1995, 5 U.S.C. 1531-1538. This rule
will not result in the expenditure by State, local, and tribal
governments, in the aggregate, nor by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no action is required by
the provisions of the Unfunded Mandates Reform Act of 1995.
H. Executive Order 13132, Federalism
Executive Order 13132, ``Federalism,'' (64 FR 43255, August 10,
1999), sets forth principles and criteria that agencies must adhere to
in formulating and implementing policies that have federalism
implications. This rule provided for the distribution of funds
collected from the sale of the semipostal Heroes Stamp. It had no
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 did not
preempt any State laws. As noted in the interim rule, FEMA determined
that this rule did not have sufficient federalism implications
sufficient to warrant the preparation of a federalism impact statement.
This final action which removes the interim regulations likewise has no
federalism implications.
I. Paperwork Reduction Act
The interim rule contained information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et
seq. Under the PRA, a person may not be penalized for failing to comply
with an information collection that does not display a currently valid
OMB control number. The information collection, which includes FEMA
Form 75-14, the 9/11 Heroes Stamp Act of 2001 Eligibility and
Application for Benefits form, was approved under OMB number 1660-0091
with an expiration date of July 2008. The Paperwork Reduction Act
Collection Discontinuation Form for 1660-0091 was filed on August 15,
2007.
J. Executive Order 13175, Consultation With 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, November 9, 2000). This rule does 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.
K. Executive Order 12988, Civil Justice Reform
FEMA has reviewed this rule under Executive Order 12988, ``Civil
Justice Reform'' (61 FR 4729, February 7, 1996). This rule meets
applicable standards to minimize litigation, eliminate ambiguity, and
reduce burden.
List of Subjects in 44 CFR Part 153
Disaster assistance, Emergency relief personnel, Terrorism.
0
Accordingly, for the reasons stated in the preamble, and under the
authority of 5 U.S.C. 301 and 6 U.S.C. 101 et seq., FEMA amends 44 CFR
chapter 1, by removing part 153.
PART 153--[REMOVED AND RESERVED]
R. David Paulison,
Administrator, Federal Emergency Management Agency.
[FR Doc. E8-10936 Filed 5-15-08; 8:45 am]
BILLING CODE 9110-17-P