Debris Removal: Eligibility of Force Account Labor Straight-Time Costs Under the Public Assistance Program for Hurricane Sandy, 67285-67290 [2012-27382]

Agencies

• Federal Emergency Management Agency
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 77, Number 218 (Friday, November 9, 2012)]
[Rules and Regulations]
[Pages 67285-67290]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27382]


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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: Interim final rule.

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SUMMARY: The Fiscal Year 2007 Department of Homeland Security 
Appropriations Act authorized a Public Assistance Pilot Program 
intended to reduce the costs to the Federal government of providing 
assistance to States and local governments; increase flexibility in the 
administration of assistance; and expedite the provision of assistance 
under the Robert T. Stafford Disaster Relief and Emergency Assistance 
Act. Due to the current pressing need for efficient and timely recovery 
from a catastrophic disaster event, Hurricane Sandy, which has cast 
widespread debris over a major portion of the eastern seaboard of the 
United States, this rule implements one of the debris-related Public 
Assistance Pilot procedures: it allows for the reimbursement of the 
straight- or regular time salaries and benefits of the employees of 
Public Assistance applicants who perform 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.

DATES: This interim final rule is effective November 9, 2012, and 
applicable October 27, 2012. Comments must be submitted by January 8, 
2013.

ADDRESSES: You may submit comments, identified by Docket ID FEMA-2012-
0004, by one of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of 
Chief Counsel, Federal Emergency Management Agency, Room 835, 500 C 
Street, SW., Washington, DC 20472.

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) 
William.Roche@dhs.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Public Assistance Program

1. General
    Each year, the United States is struck by natural disasters, which 
may include events such as storms, earthquakes, volcanic eruptions, and 
landslides, as well as events that occur from various other causes, 
such as fires, floods, and explosions. When a locality is, or will be, 
overwhelmed by the magnitude of the damage from any such event, the 
community turns to the State for help. If it is evident that the 
situation is or will be beyond the combined capabilities of local and 
State resources, the 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 and 
authorizes Public Assistance, 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''). Public Assistance 
grants assist State, Tribal, and local governments with the response to 
and recovery from the declared event. Specifically, the Public 
Assistance program provides assistance for debris removal, emergency 
protective measures, and permanent restoration of public 
infrastructure. FEMA refers to debris removal and emergency protective 
measures as ``emergency work.'' FEMA also categorizes these types of 
work as Category A (debris removal) and Category B (emergency 
protective measures). Category B includes debris removal costs that are 
incurred as emergency protective measures, such as

[[Page 67286]]

clearing debris to establish immediate emergency access. Permanent 
restoration of infrastructure, which FEMA refers to as ``permanent 
work,'' includes several categories, including Roads and Bridges 
(Category C), Water Control Facilities (Category D), Buildings and 
Equipment (Category E), Utilities (Category F), and Parks, Recreational 
Facilities, and Other Items (Category G). This rulemaking applies to 
debris removal activities only (Categories A and B).
2. Debris Removal
    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. See 44 CFR 206.224. The debris must be the direct 
result of the disaster and located in the disaster area, and the 
applicant must have the legal responsibility to remove the debris. To 
ensure these requirements are met, FEMA has issued extensive guidance 
on oversight processes and procedures to monitor debris removal 
activities.
    In the immediate aftermath of an event, the removal of debris is a 
critical aspect of a community's economic recovery and return to 
normalcy. Debris blocks roadways prohibiting the passage of police, 
fire, and medical teams. Debris slows repairs and reconstruction of 
essential buildings and homes. It also may cause health and safety 
problems if left to fall on passersby, grow mold, or foster insect 
infestation.
    Between January 1, 1999, and December 1, 2010, FEMA obligated an 
annual average of 3,940 Project Worksheets (PWs) and $675,534,796 for 
Category A, Debris Removal for major disasters and emergency 
declarations. This figure does not include Category B debris removal 
work, including work to remove debris blocking emergency response; 
therefore, the total amount of debris removal funded during this time 
period is even higher.

B. The Public Assistance Pilot Program

    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. 
FEMA implemented four of the six Pilot procedures authorized by the 
Appropriations Act for the administration of Public Assistance grants. 
The four initiatives that FEMA offered as part of the Pilot were: 
grants based on estimates (for Category A and C-G large projects up to 
$500,000); an increased Federal cost share for debris removal projects 
for applicants with a FEMA-approved debris management plan; 
reimbursement of straight-time wages for applicant force account labor 
performing disaster related debris removal work; and a debris recycling 
initiative. The Appropriations Act also gave FEMA the authority to 
waive regulations and policies to implement the Public Assistance Pilot 
Program. It allowed State and local governments to participate in the 
Public Assistance Pilot Program on a voluntary basis. Public Assistance 
applicants were not required to use the Pilot procedures, but could 
elect to use one or more of the Pilot procedures for one or more of its 
projects. The Appropriations Act did not authorize the participation of 
private non-profit applicants in the Pilot Program. FEMA was prohibited 
from approving any Pilot projects after December 31, 2008, and was 
required to submit a report to Congress regarding the effectiveness of 
the Pilot Program. On May 20, 2009, FEMA submitted the report, entitled 
``FEMA Public Assistance Pilot Program Fiscal Year 2009 Report to 
Congress.''
    This rule implements one of the debris-related Pilot Program 
procedures, Force Account Labor, for 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 the current Public Assistance program, FEMA only pays 
overtime 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-time'') salaries and benefits of 
permanently employed personnel are not eligible in calculating 
allowable costs. See 44 CFR 206.228(a)(2). However, FEMA reimburses 
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. For over a decade, State and 
local applicants have requested reimbursement for straight-time 
salaries for their force account labor who are pulled away from their 
normal day-to-day work to perform debris removal operations. In 
response to these requests and under the Force Account Labor procedure 
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 addition, FEMA wanted to evaluate whether debris 
removal operations and monitoring performed by force account labor was 
less costly and more efficient than contractor operations.
    Feedback received on the Public Assistance Pilot Program indicated 
that the Force Account Labor procedure resulted in administrative 
benefits. States and FEMA Regional Offices reported that grant 
applicants who utilized this procedure relied less on contractors, 
which resulted in fewer complaints and negotiation over costs and 
scopes of work and thus eliminated delays in accomplishing the work. 
FEMA also found that the Force Account Labor procedure provided 
applicants an incentive to monitor debris removal activities of 
contractors with its regular employees, rather than enter into 
contracts to perform the work. Indeed, ninety percent of all applicants 
participating in the Public Assistance Pilot Program requested 
reimbursement for straight- or regular time salary and benefits for 
their permanent employees who performed at least some of the monitoring 
or debris removal activities. This large participation rate, coupled 
with reporting from the States and FEMA Regions, shows that reimbursing 
straight-time for an applicant's regular employees who performed debris 
removal work provided an incentive for applicants to complete debris 
removal work themselves rather than entering into contracts to perform 
the work.
    The Force Account Labor procedure of the Public Assistance Pilot 
Program also resulted in cost and time savings. Funding straight- or 
regular time force account labor costs provided applicants an incentive 
to manage debris

[[Page 67287]]

operations more effectively and decreased the number of contractors 
required to both perform debris operations and monitor debris removal 
contractors. Not only did it reduce contractor costs, but it also 
allowed applicants to stop paying for contract equipment, and use their 
own equipment for debris operations. Funding the straight-time of an 
applicant's employees also provided additional flexibility to local 
governments, allowing them to use a combination of contracting and 
force account labor for debris removal work.
    In addition, because applicants started debris operations more 
expeditiously, and reduced or eliminated delays related to procuring 
and mobilizing contractors, the force account provision of the Pilot 
Program resulted in faster obligation of funding from FEMA. FEMA 
obligated funds for debris removal projects that used the Force Account 
Labor procedure in 60 percent less time than for those that used 
contractors for debris removal projects.

II. Discussion of the Rule

    This rule implements 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 depth of this storm is 
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 is promulgating this rule to accelerate the 
nation's recovery by maximizing the use of force account labor. A 2011 
Department of Homeland Security Inspector General Report recommended 
that FEMA implement the force account labor procedure in some form, 
especially for an event of this magnitude, which would assist in 
reducing the occurrence of waste, fraud, and abuse.
    This rule revises 44 CFR 206.228(a)(2) to allow the reimbursement 
of straight-or regular-time salaries and benefits of a grantee's or 
subgrantee's permanently employed personnel for debris removal work due 
to Hurricane Sandy performed under the Stafford Act's Major Disaster 
Assistance Programs (sections 403 and 502) or Emergency Assistance 
Programs (section 407). In order to receive reimbursement, force 
account labor employees must work exclusively on Hurricane Sandy debris 
removal. They cannot combine Hurricane Sandy debris removal 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 will 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. Emergency work is that work which must be 
performed to reduce or eliminate an immediate threat to life, protect 
public health and safety, and to protect improved property that is 
threatened as a result of the disaster. See 44 CFR 206.225. Debris 
removal work, whether labeled as Category A or Category B, must be in 
the public interest. See 44 CFR 206.224. In practice, FEMA treats 
debris removal work the same whether it is under Category A or under 
Category B. Therefore, this rule makes 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. This rule does 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.
    This rule adds a reference to ``grantee'' in paragraph (a)(2) of 
section 206.228; it currently only refers to ``subgrantees.'' The 
eligibility of force account labor costs outlined in 44 CFR 
206.228(a)(2) applies to grantees as well as subgrantees. The State, in 
most cases, acts as the grantee 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, this rule adds ``grantee'' to 
paragraph (a)(2) of section 206.228. The rule also establishes a cross 
reference to the exception for host state evacuation and sheltering in 
44 CFR 206.202.

III. Administrative Procedure Act

    FEMA has good cause to publish this interim final rule without 
notice and comment under 5 U.S.C. 553(b)(3)(B), as it would be 
impracticable, unnecessary and contrary to the public interest. The 
impacts of Hurricane Sandy illustrate the need for promulgating this 
rule as quickly as possible. Between October 28, 2012 and October 31, 
2012, Hurricane Sandy produced widespread wind, storm surge, flood, and 
snow damage to the Mid-Atlantic and Northeast regions of the United 
States. Before Hurricane Sandy had even made landfall the President 
issued emergency declarations for nine States, authorizing Federal 
resources to assist those States with their preparations for the 
historic storm. Hurricane force winds were experienced along portions 
of the coasts from Virginia to Massachusetts. On October 29, 2012, 
Hurricane Sandy made landfall as a post-tropical cyclone with maximum 
sustained winds of 85 miles per hour, which corresponds to a strong 
Category 1 hurricane on the Saffir Simpson Scale. Landfall occurred 
very close with high tide in many areas, resulting in substantial storm 
surge including almost 14 feet in New York City, and the Holland and 
Brooklyn-Battery tunnels remain closed due to flooding as of October 
30, 2012. Thus far, Sandy is responsible for 30 fatalities in the 
United States, with search and rescue operations still ongoing.
    Efficient and effective debris operations are arguably the single 
most important step toward community recovery following a major 
disaster--the ability of residents to return and live in a safe and 
healthy environment depends on the quality of the debris response. 
Since 2000, the Public Assistance Program awarded over $8 billion in 
grant funding--nearly 20 percent of all Public Assistance grants 
obligated during the period--to reimburse eligible applicants for 
debris removal. In addition, over $3 billion has been expended on 
Direct Federal Assistance related to debris removal. While the full 
scope of the damage from Sandy has yet to be determined, United States 
Army Corps of Engineering modeling estimates that a Category 1 
hurricane making landfall in approximately the same area as Sandy could 
result in an excess of 27.3 million cubic yards of debris, spread 
across nine states and the District of Columbia.
    Removing the current disincentive to applicants using their own 
employees

[[Page 67288]]

for debris removal operations will encourage applicants to use their 
own labor forces to perform debris work that may be done more quickly, 
more efficiently, and at less cost than going through a procurement 
process and bringing in debris removal contractors.
    This rule implements a procedure that has already been thoroughly 
tested through a Pilot Program in which any eligible State or local 
government was welcome to participate. Over 4,000 applicants chose to 
participate, and FEMA's analysis of the Pilot program indicated that it 
was very beneficial to those applicants. State and local governments 
that participated in the Pilot program were highly supportive of this 
procedure. In addition, the Department of Homeland Security's Office of 
Inspector General has recommended that this procedure be implemented in 
some form.
    Due to the widespread, significant impact of disasters like 
Hurricane Sandy, and given that the procedure implemented by this 
interim final rule was extensively tested during the Public Assistance 
Pilot Program, FEMA has determined that it would be impracticable, 
unnecessary, and contrary to the public interest to delay putting the 
provisions of this interim final rule in place until a public notice 
and comment process has been completed. We find good cause to waive the 
notice of proposed rulemaking and to issue this final rule on an 
interim basis. We will accept public comments on this interim final 
rule for 60 days.
    We are also dispensing with the Administrative Procedure Act 
requirement that a new rule not take effect until 30 days after it is 
issued. Instead, this rule is effective October 27, 2012, to allow the 
maximum benefit for Hurricane Sandy debris removal operations. 
Immediate effectiveness is authorized because this is a substantive 
rule granting an exception to the prohibition on reimbursing Public 
Assistance applicants for their straight-time force account labor costs 
associated with debris removal in response a major disaster or 
emergency. In addition, for the reasons set forth above, there is good 
cause to make the procedure implemented by this rule effective 
immediately.

IV. Regulatory Analysis

A. National Environmental Policy Act (NEPA)

    CEQ regulations provide for Federal agencies to establish 
categories of actions that do not individually or cumulatively have a 
significant impact on the human environment which do not require an 
environmental assessment or environmental impact statement. 40 CFR 
1508.4. 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 
April 30, 2013. 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 been designated a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866. Accordingly, the 
rule has 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 greatly 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 into the debris 
removal program 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

[[Page 67289]]

responsibilities of States, and involves no preemption of State law nor 
does it 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, as amended ``Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations'' (59 FR 7629, Feb. 16, 1994), FEMA has undertaken to 
incorporate 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, denying persons the benefit of, or 
subjecting persons to discrimination because of their race, color, or 
national origin or income level.
    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 does have ``tribal implications'' 
as defined in the Executive Order. However, 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 does 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 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. 
FEMA will work with States

[[Page 67290]]

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 the 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. Furthermore, Section 808 
of the CRA allows the issuing agency to make a rule effective sooner 
than otherwise provided by the CRA if the agency makes a good cause 
finding that notice and public procedure is impracticable, unnecessary 
or contrary to the public interest. As stated previously, FEMA has made 
such a good cause finding, including the reasons therefore.

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.

    For the reasons discussed in the preamble, the Federal Emergency 
Management Agency amends 44 CFR part 206 as follows:

PART 206--FEDERAL DISASTER ASSISTANCE

0
1. The authority citation for part 206 is revised to read as follows:

    Authority:  Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act 
of 2002, 6 U.S.C. 101 et seq.; Department of Homeland Security 
Delegation 9001.1.


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2. Revise Sec.  206.228, paragraph (a)(2) to read as follows:


Sec.  206.228  Allowable costs.

* * * * *
    (a) * * *
    (2) Force Account Labor Costs. The straight- or regular-time 
salaries and benefits of a grantee's or subgrantee's permanently 
employed personnel are:
    (i) Eligible in calculating the cost of eligible permanent repair, 
restoration, and replacement of facilities under section 406 of the 
Stafford Act;
    (ii) Eligible, at the Administrator's discretion, in calculating 
the cost of eligible debris removal work under sections 403(a)(3)(A), 
502(a)(5), and 407 of the Stafford Act for a period not to exceed 30 
consecutive calendar days, provided the grantee's or subgrantee's 
permanently employed personnel are dedicated solely to eligible debris 
removal work for any major disaster or emergency declared by the 
President on or after October 27, 2012, in response to Hurricane Sandy; 
and
    (iii) Not eligible in calculating the cost of other eligible 
emergency protective measures under sections 403 and 502 of the 
Stafford Act, except for those costs associated with host state 
evacuation and sheltering, as established in Sec.  206.202.
* * * * *

Janet Napolitano,
Secretary.
[FR Doc. 2012-27382 Filed 11-8-12; 8:45 am]
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