[Federal Register Volume 66, Number 148 (Wednesday, August 1, 2001)]
[Proposed Rules]
[Pages 39715-39726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19011]


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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 204

RIN 3067-AD24


Disaster Assistance; Fire Management Assistance Grant Program

AGENCY: Federal Emergency Management Agency.

ACTION: Proposed rule.

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[[Page 39716]]

SUMMARY: This proposed rule would implement section 420 of the Stafford 
Act as amended by the Disaster Mitigation Act of 2000 and would provide 
overall program guidance on the operation and administration of the 
Fire Management Assistance Grant Program.

DATES: We invite comments on this proposed rule and will accept 
comments until September 17, 2001.

ADDRESSES: Please send written comments to the Rules Docket Clerk, 
Office of the General Counsel, Federal Emergency Management Agency, 500 
C Street SW., Washington, DC 20472, (facsimile) 202-646-4536, or 
(email) [email protected].

FOR FURTHER INFORMATION CONTACT: Curtis Carleton, Chief, Community 
Services Branch, Federal Emergency Management Agency, 500 C Street SW., 
room 713, Washington, DC 20472, 202-646-4535; (facsimile) 202-646-3147; 
or (e-mail) [email protected].

SUPPLEMENTARY INFORMATION: Section 420 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5187, as 
amended by section 303 of the Disaster Mitigation Act of 2000, 
establishes the Fire Management Assistance Grant Program, which expands 
the scope and level of assistance currently available under the Fire 
Suppression Assistance Program. Instead of limiting Federal assistance 
to the ``suppression'' of forest or grassland fires that threaten such 
destruction as would constitute a major disaster, section 420, as 
amended, expands the range of eligible activities to include the 
``mitigation, management, and control'' of such fires.
    Part of the difficulty in administering the Fire Suppression 
Assistance Program over the past several years has been the changing 
nature and increased frequency of wildfires. From 1970-1995, we (FEMA) 
averaged about 5-7 State requests per year. However, since 1996, we 
have averaged approximately 40 requests per year. We attribute this 
increase in State requests to a higher occurrence of fires burning in 
the wildland/urban interface, the area where potentially highly 
flammable wildland vegetation meets high value structures, primarily 
residences.
    In addition to the dramatic increase in requests, expenditures for 
the Fire Suppression Assistance Program have also increased. From June 
1970-December 1996 Federal expenditures totaled $103,043,218; yet in 
1998 alone expenditures under the program totaled $105,803,191. In one 
year, the Fire Suppression Assistance Program exceeded the programmatic 
costs accumulated over its previous 27 years of existence. We expect 
this trend of more frequent and costly fires to continue well into the 
next decade as the boundaries between wildlands and urban population 
centers continue to diminish, creating a volatile wildland/urban 
interface. Federal expenditures for the 2000 fire season have already 
exceeded $50 million and we expect this number to increase as States 
submit additional costs to FEMA for review.\1\
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    \1\ Under the Fire Suppression Assistance Program it normally 
takes States between 12 and 18 months to gather and submit all 
eligible costs to FEMA for review.
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    Despite the relatively high level of funding provided to States 
under approved fire suppression assistance grants, the program has 
struggled to meet the needs of States that have exceeded their 
capability in battling fires in the wildland/urban in recent years. To 
compensate for deficiencies in the current program, the President has 
approved several State requests for major disaster and emergency 
declarations. Since 1996, Federal expenditures for major disaster and 
emergency declarations provided in conjunction with fire suppression 
assistance grants have totaled $62,433,467.
    The Disaster Mitigation Act of 2000 amendments to Sec. 420 will 
allow us to provide States with a higher, more organized level of 
Federal assistance under the Fire Management Assistance Grant Program 
than is currently available under the Fire Suppression Assistance 
Program. In Senate Report 106-295 dated May 16, 2000, which accompanied 
Senate Bill 1691, members of Congress acknowledged the deficiencies of 
the current program and commented that the amendments ``* * * would 
allow for payment of the extraordinary cost incurred by local 
governments in complex, multi-location wildfire situations (e.g., Texas 
and Oklahoma in 1996, and Florida in 1998), and may preclude the need 
to issue a major disaster or emergency in these situations.''
    For instance, to minimize the need for major disaster and emergency 
declarations to be provided in conjunction with fire management 
assistance grants, section 420, as amended, includes explicit authority 
to fund activities allowable under section 403 (42 U.S.C. 5170b)--
Essential Assistance--of the Stafford Act. Section 403 authorizes 
assistance for activities required to meet threats to life and 
property. To allow payment for the extraordinary costs incurred by 
local governments performing eligible firefighting activities, section 
420 now authorizes the provision of assistance, including grants, 
equipment, supplies, and personnel both to State and local governments, 
whereas under the Fire Suppression Assistance Program assistance was 
limited to States. To ensure the effective administration and operation 
of the new Fire Management Assistance Grant Program, section 420, as 
amended, requires us to coordinate with State and tribal departments of 
forestry, in addition to the more traditional emergency management 
agencies that we coordinate with on the administration and operation of 
other Stafford Act disaster assistance programs.
    Our proposed regulations for the new Fire Management Assistance 
Grant Program reflect the changes mandated by the Disaster Mitigation 
Act of 2000. These proposed regulations also include other initiatives 
designed to streamline the Fire Management Assistance Grant Program and 
make it more consistent with the administration, eligibility, and 
funding of the other Stafford Act disaster assistance programs.
    The Fire Management Assistance Grant Program becomes effective on 
October 30, 2001, one year from enactment of the Disaster Mitigation 
Act of 2000.

Disaster Mitigation Act of 2000 Amendments

Mitigation, Management and Control

    In order to gather a full spectrum of ideas for the design of the 
Fire Management Assistance Grant Program, we convened a meeting of 
foresters and program managers representing eight States, Native 
American Tribes, the Forest Service, and four FEMA Regional Offices in 
January 2001. During the meeting, we discussed the practical 
interpretation and application of ``mitigation, management, and 
control.'' Based on those discussions, we are interpreting 
``mitigation, management, and control'' as a flexible and broad-based 
provision intended to reduce the spread of a fire, reduce associated 
health and safety threats, prevent potential damages by the fire, and 
repair damage caused by the firefighting activities. In application, 
activities that may be eligible for funding under the new program 
include section 403 activities that are associated with the 
firefighting operation such as evacuations and sheltering, search and 
rescue, and public information, as well as other activities associated 
with the ``mitigation, management, and control'' of declared fires, 
which may include the

[[Page 39717]]

repair of damage caused by eligible firefighting activities and the 
pre-positioning of resources.
    State and local governments, however, should be aware that 
``mitigation, management, and control'' under this authority, applies 
only to a fire or fire complex that has been declared under the Fire 
Management Assistance Grant Program. Therefore, activities designed to 
reduce the potential for future fires, or to minimize future soil loss, 
for example, are outside of the scope of mitigation, management, and 
control, and would be ineligible for funding under the Fire Management 
Assistance Grant Program.

Local Governments

    Under section 420, as amended, we may provide funding to local 
firefighting organizations more readily than under the current program. 
Under the current program, States are the sole applicants eligible for 
assistance; local firefighting organizations may only be reimbursed if 
they are signatories to a mutual aid agreement with the State. This new 
provision would eliminate confusion over what are acceptable mutual aid 
agreements, and would provide a more equitable program with respect to 
local governments. In the Fire Management Assistance Grant Program, 
local governments would be considered subgrantees, with the State 
serving as Grantee, and may be reimbursed for eligible costs incurred 
without having entered into a pre-existing mutual aid agreement with 
the State.

Coordination With State and Tribal Foresters

    We have worked closely with State foresters in recent years as we 
have considered changes to the Fire Suppression Assistance Program. We 
have also worked closely with State foresters on many operational 
issues. We have had very little opportunity to work with tribal 
foresters; assistance for firefighting activities on tribal lands is 
available from other federal sources. We intend to seek out ways to 
coordinate program issues with tribal foresters, as well as with State 
foresters. We reflect this intent in our introduction to the proposed 
regulations.

Streamlining Proposals

    We propose to incorporate measures into the Fire Management 
Assistance Grant Program that are similar to those in the Fire 
Suppression Assistance Program to ensure that Federal assistance 
remains supplemental to State and local capabilities. These measures 
include the establishment of the following: (1) Criteria that would be 
used to determine when to approve a State's request for a declaration 
under the Fire Management Assistance Program, including a requirement 
for States to develop an Operations Plan that identifies, among other 
things, indicators of when the State needs Federal supplemental 
assistance; (2) a fire cost threshold that must be met on all fire 
management assistance grants, and (3) a 25 percent non-Federal cost-
share for fire management assistance grants.

Criteria

    We propose criteria that we would evaluate to determine whether a 
fire threatens such destruction as would constitute a major disaster. 
These criteria would indicate the conditions and resources specific to 
the current fire situation for which the State is requesting a 
declaration. We would consider these criteria in the context of the 
State's Operations Plan, which we would require each State to develop 
and maintain for the Fire Management Assistance Grant Program. The 
Operations Plan should provide an overview of State and local 
capabilities and identify when the State may need to request a fire 
management assistance declaration, detail the State's process for 
requesting assistance, and provide an outline for grant administration. 
In rendering a determination on a State's request for a declaration, we 
would consider the State's resources, capabilities, and other special 
considerations identified in the Operations Plan.

Fire Cost Threshold

    We propose to replace the floor cost \2\ that we have used in the 
Fire Suppression Assistance Program with a fire cost threshold that has 
been designed to ensure that Federal assistance remains supplemental to 
State and local capabilities under the Fire Management Assistance Grant 
Program. After we approve a State's request for a declaration, the 
State could apply for a fire management assistance grant; however, we 
would only approve a grant when the total eligible costs for a declared 
fire meet or exceed the fire cost threshold.
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    \2\ Floor costs are a creation specific to the Fire Suppression 
Assistance Program. Since its inception in 1969, the Fire 
Suppression Assistance program has relied on the concept of floor 
costs to establish monetary thresholds, State-by-State, above which 
Federal funding is provided for a declared fire. Floor costs 
represent 5 percent of a State's average annual fire fighting costs, 
the components of which States interpret variously. As a result of 
these varied interpretations and reporting of fire related costs 
there is a great disparity in floor costs from State-to-State. We 
have also noticed that the floor cost has acted as a disincentive 
for some States to develop budget and mitigation strategies 
adequately for combating wildfire (lower costs reported = lower 
floor cost to meet).
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    In an effort to streamline the Fire Management Assistance Grant 
Program with other Stafford Act disaster assistance programs and to 
clarify Federal and State responsibilities better under the new 
program, we undertook an examination of Federal expenditures approved 
under the current Fire Suppression Assistance Program from 1990-2000. 
Our examination showed that we approved 181 fire suppression assistance 
grants from 1990-2000 and obligated Federal funding in the amount of 
$238,511,003 during that ten-year period. Of the 181 approved fire 
suppression assistance grants, however, 55 grants required less than 
$15,000 in Federal funding. Federal expenditures for these 55 grants 
totaled $332,583. We found these numbers to be very disconcerting, as 
both the current and amended versions of section 420 state that 
assistance is to be provided for those fires burning ``on publicly or 
privately owned forest or grassland which threaten such destruction as 
would constitute a major disaster.'' (Emphasis added) In general, with 
dollar expenditures of this amount, a fire or fire complex would not 
appear to be beyond most States' capabilities to respond and would not 
be of such a magnitude that they threaten ``such destruction as would 
constitute a major disaster.'' \3\
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    \3\ For example, in the last 10 years there have been two fire 
suppression assistance grants for declared fires which received 
federal expenditures under $100 ($67 and $89 respectively).
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    Under other Stafford Act disaster assistance programs, we note that 
some type of monetary threshold must first be met before specific 
disaster assistance programs providing assistance to individuals, and 
State and local governments are designated under a major disaster 
declaration. We have studied the potential effects of basing the fire 
cost threshold for the Fire Management Assistance Grant Program on per 
capita costs and feel that five percent of $1.04 per capita of the 
State population would be appropriate. However, to further ensure that 
Federal assistance under the Fire Management Assistance Grant Program 
remains supplemental to State and local resources and capabilities, for 
those States with a per capita fire cost threshold of less than 
$100,000, a minimum $100,000 fire cost threshold would have to be met 
before we would be able to approve any Federal assistance. In 
determining whether or not a State has met its fire cost

[[Page 39718]]

threshold, we will review State's total eligible costs less any pre-
positioning costs. The fire cost threshold would be applied to each 
fire management assistance grant for which a State submits an 
application. We feel that the fire cost threshold is both reasonable 
and justified as the majority of fires declared under the Fire 
Suppression Assistance Program have received grants with very small 
dollar expenditures which are not beyond State and local capabilities 
to respond.
    It is very important to note that determinations on State requests 
for fire management assistance declarations would be based solely on 
criteria established in 44 CFR part 204, and would not be dependent on 
whether the State met the fire cost threshold. As States submit grant 
applications under fire management assistance declarations, those 
applications that meet or exceed the fire cost threshold would be cost-
shared in their entirety without deduction of the threshold. Those 
applications submitted with total eligible costs below the fire cost 
threshold would be turned down.
    In addition to our proposal for the fire cost threshold, we have 
been contemplating whether we should include a component to the fire 
cost threshold that would be based on the cumulative effect of 
numerous, but smaller fires burning in States that we have declared for 
fire management assistance, but which failed to meet the fire cost 
threshold. We would appreciate any thoughts or comments interested 
parties may have regarding the proposed fire cost threshold and the 
possibility of addressing the cumulative effect of smaller declared 
fires that do not meet the fire cost threshold.

Cost Share

    In contemplating the design of the Fire Management Assistance Grant 
Program, we explored ways that we could simplify the administration of 
the program for our applicants, while aligning the program with other 
Stafford Act disaster assistance programs. Consequently, we have 
determined to replace the three-tier matrix, which starts with a 70 
percent Federal, 30 percent non-Federal cost-share and can increase to 
100 percent Federal funding. We propose a 75 percent Federal, 25 
percent non-Federal cost-share provision similar to that used in other 
Stafford Act disaster assistance programs, and to allow for 90 percent 
Federal funding for extraordinary fires.
    The changes proposed in this section, when finalized, would 
simplify the administration of the Fire Management Assistance Grant 
Program, as well as streamline and align the program with other 
Stafford Act disaster assistance programs.

National Environmental Policy Act

    This rule is excluded from the preparation of an environmental 
assessment or environmental impact statement under 44 CFR 
10.8(d)(2)(ii), where the rule is related to actions that qualify for 
categorical exclusion under 44 CFR 10.8(d)(2)(xix).

Regulatory Planning and Review

    We have formally submitted this proposed rule to OMB for review. 
This proposed rule, however, is not economically significant under 
Executive Order 12866, Regulatory Planning and Review, September 30, 
1993; it would not have an annual effect on the economy of $100 million 
or more or adversely affect in a material way the economy or State 
governments or communities. The rule sets out the administrative 
requirements for applying for and receiving Federal fire management 
assistance grants. Based on the history of the Fire Suppression 
Assistance Program and components proposed in this rule, we anticipate 
that the total of grants we provide annually will typically not exceed 
$15 million, though in years with extraordinary fire conditions and 
activity, we could provide grants totaling over $50 million. We do not 
anticipate providing over $100 million annually. We have vetted 
thoroughly all proposed policy changes with the affected constituents.

Regulatory Flexibility Act

    We certify that this proposed rule would not have a significant 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act. This proposed rule deals with 
assistance to States and local governments to provide supplemental 
Federal assistance to fight fires burning in the wildland/urban 
interface that threaten such destruction as would constitute a major 
disaster; it provides program guidance and outlines administrative 
requirements for the Fire Management Assistance Grant Program as they 
relate to States and local governments. We developed the proposed rule 
in consultation with the States and we estimate that the cost impacts 
of the changes are neutral. Thus, we do not expect the rule (1) to 
affect adversely the availability of funding to small entities, (2) to 
have significant secondary or incidental effects on a substantial 
number of small entities, or (3) to create any additional burden on 
small entities. We have not prepared a regulatory flexibility analysis.

Paperwork Reduction Act

    In accordance with the provisions of the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501 et seq., we have submitted the collections of 
information applicable to this proposed rule to the Office of 
Management and Budget for review and approval.
    During the comment period we solicit public comment on:
    (1) Whether the proposed collection of information is necessary for 
the proper performance of the functions of FEMA, including whether the 
information will have practical utility;
    (2) Whether our estimate of the burden of the proposed collection 
of information is accurate, including the validity of the methodology 
and assumptions that we used;
    (3) What we might do to enhance the quality, utility, and clarity 
of the information that we are to collect; and
    (4) What other measures we can take to minimize the burden of the 
collection of information on those who are to respond, including the 
use of automated, electronic, mechanical, electronic submission of 
responses, or other technological collection techniques.
    Following is a summary of how each form will be used:
    (a) FEMA-State Agreement. We provide Federal assistance under 
section 420 of the Stafford Act and a FEMA-State Agreement for the Fire 
Management Assistance Grant Program. The Governor and the Regional 
Director sign the Agreement, which contains the necessary terms and 
conditions consistent with the provisions of applicable laws and 
Executive Orders, and specifies the type and extent of Federal 
assistance to be provided. Supplemental agreements may be executed as 
necessary to update the agreement.
    (b) FEMA Form 90-58 Request for Fire Management Assistance is used 
by the State to provide information to support the need for a 
declaration. Additional supporting information may be furnished by the 
State or requested by FEMA after the initial request has been received. 
Since the program will operate on a ``real-time'' incident basis, a 
request for a declaration must be submitted while a fire(s) is burning 
and uncontrolled. A State may request a declaration by telephone, 
promptly following up the conversation with the FEMA Form 90-58.
    (c) Standard Form 424 Request for Federal Assistance must be 
completed by the State when applying for a grant

[[Page 39719]]

under a declared fire. The 424 and accompanying documentation must be 
submitted by a State to FEMA's Regional Director within nine months of 
declared fire. The 424 documents the incident period of the fire, the 
performance period of the grant, and all costs claimed under the 
approved declaration.
    (d) FEMA Form 90-91 Project Worksheet is prepared by the Principal 
Advisor and FEMA and State staff working with the applicant. The PW is 
used to report on the costs incurred by applicant for mitigation, 
management, and control activities and is used by FEMA to reimburse 
applicants based on eligible costs as described in the proposed 
regulation for the Fire Management Assistance Program.
    (e) A State Administrative Plan must be developed by the State for 
the administration of the fire management assistance grant. The plan 
must designate the State agency which has responsibility for program 
administration; ensure State compliance with the provisions of law and 
regulation applicable to fire management assistance grants, and ensure 
that the administrative plan is incorporated into the Operations Plan.
    (f) FEMA Form 20-10, Financial Status Report, is used by the State 
in its final reporting of costs under the Fire Management Assistance 
Grant Program.
    (g) Standard Form 270, Request for Advance or Reimbursement, is 
used by the State as an option to receive funds. The other option is 
use of FEMA's Letter of Credit procedures.
    (h)  Operations Plan. The State must submit the Operations Plan 
within 6 months of the date of the first declared fire and reviewed and 
updated on a yearly basis in order for a State to submit a 424 to FEMA. 
The Operations Plan should provide an overview of State and local 
capabilities, identify when the State may need to request a fire 
management assistance declaration, detail the State's process for 
requesting assistance, and outline the grant's administration. In 
rendering a determination on a State's request for a declaration, the 
Assistant Director would consider the State's resources, capabilities, 
and other special considerations identified in the Operations Plan.
    (i) Hazard Mitigation Plan. A plan to develop actions the State, 
local, or tribal government will take to reduce the risk to people and 
property from all hazards. The intent of hazard mitigation planning 
under the Fire Management Assistance Grant Program is to identify 
wildfire hazards and to implement actions that produce continual 
benefits and have a long-term impact. Mitigation of fire hazards is 
addressed as part of the State's comprehensive Hazard Mitigation Plan, 
described in 44 CFR part 206 Subpart M.
    (j) Appeals. When a State's request for a fire management 
assistance declaration is denied, the Governor of a State or Governor's 
Authorized Representative may appeal the decision in writing. Likewise, 
applicants may appeal any cost or eligibility determination under an 
approved declaration. Appeals usually consist of a letter briefly 
describing the reason for the appeal and any new supporting 
documentation the State or applicant submits to FEMA for review.
    (k) Duplication of Benefits. Applicants are required to notify FEMA 
of all benefits, actual or anticipated, received from other sources for 
the same loss for which they are applying to FEMA for assistance. 
Notification can be accomplished in a letter, accompanied by supporting 
documentation.
    The estimated hour burden is:

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                                                                            Burden
            Burden item              Hours per  respondent  Respondents   hours per            Comments
                                                              per year       year
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FEMA-State Agreement..............  5 minutes.............            9            1  We estimate 5 minutes for
                                                                                       the Governor to sign this
                                                                                       agreement which has the
                                                                                       terms and conditions for
                                                                                       the Fire Management
                                                                                       Assistance Grant Program
                                                                                       (FMAGP).
FEMA Form 90-58...................  1 hour................            9            9  States use this form to
                                                                                       support their request for
                                                                                       a declaration.
Standard Form 424.................  1 hour................            9            9  The State must complete
                                                                                       this form and attachments
                                                                                       when applying for a grant
                                                                                       under a declared fire.
FEMA Form 90-91...................  30 minutes............        1,000          500  Prepared by the Principal
                                                                                       Advisor, FEMA and State
                                                                                       staff, and the applicant.
                                                                                       This form documents the
                                                                                       costs incurred by an
                                                                                       applicant for mitigation,
                                                                                       management, and control
                                                                                       activities associated
                                                                                       with a declared fire and
                                                                                       to reimburse applicants
                                                                                       based on eligible costs
                                                                                       describe din the proposed
                                                                                       regulations for the
                                                                                       FMAGP.
FEMA Form 20-10...................  1 hour................            9            9  The State uses this to
                                                                                       submit a final reporting
                                                                                       of costs for a fire
                                                                                       management assistance
                                                                                       grant (FMAG).
Standard Form 270 or Letter of      30 minutes............            9            5  The State uses this form
 Credit.                                                                               as an option to receive
                                                                                       funds. The other option
                                                                                       is use of FEMA's Letter
                                                                                       of Credit procedures.
State Administrative Plan.........  8 hour................            9           72  The State must develop
                                                                                       this plan for
                                                                                       administration of the
                                                                                       FMAG.
Operations Plan...................  20 hours..............            9          180  The Operation Plan
                                                                                       provides an overview of
                                                                                       State and local
                                                                                       capabilities, identifies
                                                                                       when the State may need
                                                                                       to request a fire
                                                                                       management assistance
                                                                                       declaration, details the
                                                                                       State's process for
                                                                                       requesting assistance,
                                                                                       and outlines the grant's
                                                                                       administration.
State Hazard Mitigation Plan......  160...................            9         1440  A plan to develop actions
                                                                                       the State, local, or
                                                                                       tribal government will
                                                                                       take to reduce the risk
                                                                                       to people and property
                                                                                       from all hazards. The
                                                                                       State Hazard Mitigation
                                                                                       Plan is to identify
                                                                                       wildfire hazards and to
                                                                                       implement actions that
                                                                                       produce continual
                                                                                       benefits and have a long-
                                                                                       term impact. Mitigation
                                                                                       of fire hazards are part
                                                                                       of the State's
                                                                                       comprehansive Hazard
                                                                                       Mitigation Plan, 44 CFR
                                                                                       Part 206, Subpart M.
Appeals...........................  1.....................           20           20  Appeals usually consist of
                                                                                       a letter briefly
                                                                                       describing the reason for
                                                                                       the appeal and any new
                                                                                       supporting evidence for
                                                                                       review.
Duplication of Benefits...........  1.....................           20           20  Notification consists of a
                                                                                       letter and supporting
                                                                                       documentation.
                                                                        -------------
    Total Burden Hours............  ......................  ...........        2,265
----------------------------------------------------------------------------------------------------------------


[[Page 39720]]

    For the purposes of this rule we estimate the following annual cost 
burdens:

----------------------------------------------------------------------------------------------------------------
                                                                   Est'd hours/
                 Requests from:                    No.  requests     requester       Cost/hour      Costs/year
----------------------------------------------------------------------------------------------------------------
States..........................................               9             194             $40         $69,840
Local Governments...............................           1,000            0.52             $20         $10,400
    Totals Costs/Year...........................  ..............  ..............  ..............         $80,240
----------------------------------------------------------------------------------------------------------------

Executive Order 13132, Federalism

    This rule involves no policies that have federalism implications 
under Executive Order 13132, Federalism, dated August 4, 1999. The rule 
establishes the administrative requirements for the Fire Management 
Assistance Grant Program in applying for and receiving Federal grants. 
It involves no preemption of State law nor does it limit State 
policymaking discretion. Nevertheless, in the course of designing the 
Fire Management Assistance Grant Program, we met with State emergency 
managers and foresters, and representatives from Tribal governments and 
the Forest Service, USDA, in January 2001 to gather input on the 
failings of the Fire Suppression Assistance Program and to see what 
steps we could take to improve the delivery of assistance under the 
Fire Management Assistance Grant Program. Based upon their input, we 
drafted these proposed regulations. Both FEMA and State concerns and 
the extent to which this rule meets those concerns are set out earlier 
in the preamble. Following that meeting we continued to solicit 
reactions from the States involved in order to address their needs in 
applying for and receiving Federal fire management assistance.

Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    We have reviewed the proposed rule under Executive Order 13175, 
which became effective on February 6, 2001. Under the Fire Management 
Assistance Grant Program, tribal governments will have the option to 
submit requests for fire management assistance declarations directly to 
us and to serve as ``Grantee,'' carrying out ``State'' roles when a 
grant application under the declaration has been approved. In January 
2001, we met with foresters and emergency managers representing eight 
States, Indian tribes, the Forest Service, USDA, and four FEMA Regional 
offices to discuss the Disaster Mitigation Act of 2000 amendments to 
Section 420 and the implementation of the new program on October 30, 
2001. We received invaluable input from all parties, which helped us to 
develop the proposed rule for the Fire Management Assistance Grant 
Program.
    In reviewing the proposed rule, we find that the proposed rule does 
not have ``tribal implications'' as defined in Executive Order 13175 
because it will not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes. Moreover, the 
proposed rule does not impose substantial direct compliance costs on 
tribal governments, nor does it preempt tribal law, impair treaty 
rights or limit the self-governing powers of tribal governments.

List of Subjects in 44 CFR Part 204

    Administrative practice and procedure, Fire management assistance, 
Grant programs--fire management, Reporting and recordkeeping 
requirements.

    Accordingly, FEMA proposes to add Part 204 to Subchapter D of 44 
CFR, to read as follows:

PART 204--FIRE MANAGEMENT ASSISTANCE GRANT PROGRAM

Subpart A--General
Sec.
204.1  Purpose.
204.2   Scope.
204.3   Definitions used throughout this part.
204.4-204.20   [Reserved]
Subpart B--Declaration Process
204.21   Fire management assistance declaration criteria.
204.22   Submitting a request for a fire management assistance 
declaration.
204.23   Processing a request for a fire management assistance 
declaration.
204.24   Determination on request for a fire management assistance 
declaration.
204.25   FEMA-State Agreement for Fire Management Assistance Grant 
Program.
204.26   Appeal of fire management assistance declaration denial.
204.27-204.40   [Reserved]
Subpart C--Eligibility
204.41   Eligible applicants.
204.42   Eligible costs.
204.43   Ineligible costs.
204.44-204.50   [Reserved]
Subpart D--Application Procedures
204.51   Application and approval procedures for a fire management 
assistance grant.
204.52   Application and approval procedures for a subgrant under a 
fire management assistance grant.
204.53   Certifying costs and payments.
204.54   Appeal of cost and eligibility determinations.
204.55-204.60   [Reserved]
Subpart E--Grant Administration
204.61   Cost share.
204.62   Duplication of programs.
204.63   Allowable costs.
204.64   Reporting and audit requirements.

    Authority: Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121-5206; Reorganization Plan No. 3 of 
1978, 43 FR 41943, 3 CFR, 1978 Comp., p 329; E.O. 12127, 44 FR 
19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 
1979 Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., 
p. 214.

Subpart A--General


Sec. 204.1  Purpose.

    This part provides information on the policies and procedures for 
the declaration process, eligibility, grant application and 
administrative requirements for the Fire Management Assistance Grant 
Program in accordance with the provisions of section 420 of the 
Stafford Act. We (FEMA) will actively work with State and Tribal 
emergency managers and foresters on the efficient delivery of fire 
management assistance as directed by this part.


Sec. 204.2  Scope.

    This part is intended for those individuals responsible for 
requesting declarations and administering grants under the Fire 
Management Assistance Grant Program, as well as those applying for 
assistance under the program.


Sec. 204.3  Definitions used throughout this part.

    Applicant. A State or tribal government submitting an application 
to us for a fire management assistance grant, or a State, local, or 
tribal government submitting an application to the Grantee for a 
subgrant under an

[[Page 39721]]

approved fire management assistance grant.
    Associate Director. The Associate Director or Assistant Director, 
as applicable, of the Readiness, Response and Recovery Directorate of 
FEMA, or his/her designated representative.
    Declared fire. An uncontrolled fire, threatening such destruction 
as would constitute a major disaster, which the Associate Director has 
approved in response to a State's request for a fire management 
assistance declaration and in accordance with the criteria listed in 
Sec. 204.21.
    Demobilization. The process and procedures for deactivating, 
disassembling, and transporting back to their point of origin all 
resources that had been provided to respond to and support an incident.
    FEMA-State agreement for the Fire management assistance grant 
program (``the Agreement.'') An agreement signed by the Governor of a 
State and the Regional Director. The agreement contains the necessary 
terms and conditions, consistent with the declaration and the 
provisions of applicable laws, Executive Orders, and regulations as the 
Associate Director may require with respect to the amount of funding to 
be provided. The agreement specifies the type and extent of Federal 
assistance to be provided, including descriptions of the incident 
period and cost sharing provisions, as well as any articles of 
agreement necessary for the administration of a grant approved under a 
fire management assistance declaration.
    Fire complex. Two or more individual fires located in the same 
general area, which are assigned to a single Incident Commander.
    Fire severity index. A number indicating the relative severity of 
the forest or grassland fire danger as determined from burning 
conditions and other variable factors of fire danger.
    Governor's Authorized Representative (GAR). The person empowered by 
the Governor to execute, on behalf of the State, all necessary 
documents for fire management assistance, including the request for a 
fire management assistance declaration.
    Grant. An award of financial assistance, including cooperative 
agreements, by FEMA to an eligible grantee. The grant award shall be 
based on the projected amount of total eligible costs for which a State 
submits an application and that FEMA approves related to a declared 
fire.
    Grantee. The State agency, as designated in the FEMA-State 
Agreement, to which a grant is awarded and which is accountable for the 
use of funds provided. An Indian tribe or authorized tribal 
organization may be the Grantee and carry out ``state'' roles when it 
applies directly to FEMA. For purposes of this part, except as noted, 
the State is the Grantee.
    Hazard mitigation plan. A plan to develop actions the State, local, 
or tribal government will take to reduce the risk to people and 
property from all hazards. The intent of hazard mitigation planning 
under the Fire Management Assistance Grant Program is to identify 
wildfire hazards and to implement actions that produce continual 
benefits and have a long-term impact. We address mitigation of fire 
hazards as part of the State's comprehensive Hazard Mitigation Plan, 
described in 44 CFR part 206, subpart M.
    Incident commander. The ranking official responsible for overseeing 
the management of fire operations, planning, logistics, and finance of 
the field response.
    Incident period. The period established by the Regional Director, 
in consultation with the Governor's Authorized Representative and the 
Principal Advisor, for the purpose of providing assistance under a fire 
management assistance declaration. The incident period usually begins 
with the start of firefighting activities and ends with the completion 
of mop-up activities. For grant administration purposes, the incident 
period generally defines the time limits for eligible costs.
    Individual assistance. Supplementary Federal assistance provided 
under the Stafford Act to individuals and families adversely affected 
by a major disaster or an emergency. Such assistance may be provided 
directly by the Federal Government or through State or local 
governments or disaster relief organizations. For further information, 
see subparts D, E, and F of 44 CFR part 206.
    Mitigation, management, and control. Those activities undertaken, 
generally during the incident period of a fire or fire complex, to 
minimize immediate adverse effects and to manage and control a fire or 
fire complex. Eligible activities may include associated emergency work 
and pre-positioning directly related to the fire for which a fire 
management assistance declaration was approved.
    Mobilization. The process and procedures used for activating, 
assembling, and transporting all resources that the Grantee requested 
to respond to support an incident.
    Operations Plan for the Fire Management Assistance Grant Program. A 
plan that the State develops, in coordination with FEMA, that provides 
an overview of the State and local capabilities and identifies when the 
State may need to request a fire management assistance declaration, 
details the State's process for requesting assistance, and outlines the 
grant's administration. The Operations Plan will assist the Associate 
Director in evaluating a State's request for a fire management 
assistance declaration.
    Pre-positioning. Moving existing fire prevention or suppression 
resources from an area of lower fire danger to one of higher fire 
danger in anticipation of an increase in wildland fire activity. The 
intent of pre-positioning is to prepare for a likely event rather than 
react to an event.
    Principal advisor. An individual appointed by the Forest Service, 
United States Department of Agriculture, or Bureau of Land Management, 
Department of the Interior, who is responsible for providing FEMA with 
a technical assessment of the fire or fire complex for which a State is 
requesting a fire management assistance declaration.
    Project worksheet. FEMA Form 90-91, which identifies actual costs 
incurred by eligible applicants as well as quantitative estimates for 
outstanding work still to be performed as a result of the eligible 
firefighting activities.
    Public assistance. Supplementary Federal assistance provided under 
the Stafford Act to State and local governments or certain private, 
nonprofit organizations other than assistance for the direct benefit of 
individuals and families. For further information, see subparts G and H 
of 44 CFR part 206.
    Regional Director. A director of a regional office of FEMA, or his/
her designated representative.
    Stafford Act. The Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121 et seq.
    Subgrant. An award of financial assistance under a grant by a 
Grantee to an eligible subgrantee.
    Subgrantee. An applicant that is awarded a subgrant and is 
accountable to the Grantee for the use of grant funding provided.
    Threat of a major disaster. The potential impact of the fire or 
fire complex is of a severity and magnitude that would result in a 
presidential major disaster declaration for the Public Assistance 
program, the Individual Assistance Program, or both.
    Uncontrolled fire. Any fire not safely confined to predetermined 
control lines as established by fire suppression forces.
    We, our, us mean FEMA.

[[Page 39722]]

    Wildland/urban interface. The geographical meeting point of two 
diverse systems, wildland and densely populated, built up environment. 
At this interface, structures and vegetation are sufficiently close 
such that a forest or grassland fire could spread to structures or a 
structure fire could ignite vegetation.


Secs. 204.4-204.20  [Reserved]

Subpart B--Declaration Process


Sec. 204.21  Fire management assistance declaration criteria.

    (a) Determinations. We will approve declarations for fire 
management assistance when the Associate Director determines that a 
fire or fire complex threatens such destruction as would constitute a 
major disaster.
    (b) Evaluation criteria. We will evaluate the threat posed by a 
fire or fire complex based on consideration of the following specific 
criteria:
    (1) Threat to lives and improved property, including threats to 
critical facilities/infrastructure, and critical watershed areas;
    (2) Availability of State and local firefighting resources;
    (3) High fire danger conditions, as indicated by nationally 
accepted indices such as the National Fire Danger Ratings System;
    (4) Potential impact on environmental and historic/cultural 
resources; and
    (5) Potential major economic impact.


Sec. 204.22  Submitting a request for a fire management assistance 
declaration.

    (a) Submission of request. The Governor of a State, or the 
Governor's Authorized Representative (GAR), may submit a request for a 
fire management assistance declaration. The request must be submitted 
while the fire is burning uncontrolled and threatens such destruction 
as would constitute a major disaster. The request must be submitted to 
the Regional Director and should address the relevant criteria listed 
in Sec. 204.21, with supporting documentation that contains factual 
data and professional estimates on the fire or fire complex. To ensure 
that we can process a State's request for a fire management assistance 
declaration as expeditiously as possible, the State should transmit the 
request by telephone, promptly followed by written documentation (FEMA 
Form 90-58).
    (b) State Operations Plan for the Fire Management Assistance 
Program. (1) General. To assist us in evaluating the State's request 
for a fire management assistance declaration in accordance with the 
provisions of this part, each State must develop and maintain an 
Operations Plan for the Fire Management Assistance Grant Program.
    (2) Content of Plan. The Operations Plan should identify when the 
State will request a declaration based on State and local capabilities. 
We expect the following components to be specifically addressed in the 
Operations Plan:
    (i) Identification of FEMA and State points of contact;
    (ii) Identification of jurisdictional responsibility for fighting 
fire;
    (iii) Identification of the legislative authority for firefighting, 
and compliance with the laws and provisions applicable to the Fire 
Management Assistance Grant Program;
    (iv) Total State firefighting resources available under normal 
conditions (using historical data), specification of staffing 
requirements, and roles and responsibilities;
    (v) Examples of the conditions and situations under which the State 
would expect to request a fire management assistance grant and details 
of the State's process for requesting assistance;
    (vi) Mobilization plan;
    (vii) Hazard mitigation plan, which among other things identifies 
land and property at risk from fires (see Sec. 204.51(d)(2)); and
    (viii) State administrative plan for fire management assistance 
grants (see Sec. 204.51(d)(1)).
    (3) Development and distribution of plan.
    (i) The Regional Director's staff will work with the State to 
develop the Operations Plan. Once complete, the State should distribute 
copies of the Operations Plan to the Regional Director, who will 
forward a copy to the Associate Director.
    (ii) The State must submit an acceptable Operations Plan within six 
(6) months of the approval of its first request for a declaration. We 
may approve declarations requested within this six-month period based 
on the information provided in the State's request. The State must 
submit an acceptable Operations Plan before it can apply for a grant 
under this part 204.
    (iii) If the State fails to develop and submit an acceptable 
Operations Plan within the 6-month period allowed, the State forfeits 
the opportunity to apply for any grants under declarations approved 
within that 6-month period. In addition, we will deny subsequent 
requests for declarations until such a time as the State submits an 
acceptable Operations Plan.
    (iv) The Operations Plan should be reviewed on a yearly basis and 
updated as necessary. The Operations Plan should be designed so that 
State capabilities and resources are further enhanced or built-upon to 
better meet the needs of current and future wildfire firefighting 
efforts. States may not submit Operations Plans that effectively reduce 
or lower capabilities and resources from prior year levels.


Sec. 204.23  Processing a request for a fire management assistance 
declaration.

    (a) In processing a request for a fire management assistance 
declaration, the Regional Director, in coordination with the Principal 
Advisor, will verify the information submitted in the State's request. 
Typically, verification is based on the Principal Advisor's Assessment 
and the Regional Summary.
    (b) The Regional Director will then forward the request to the 
Associate Director for determination, with the Principal Advisor's 
Assessment and the Regional Summary.
    (1) Principal Advisor's Assessment. The Principal Advisor, at the 
request of the Regional Director, is responsible for providing a 
technical assessment of the fire or fire complex for which the State is 
requesting a fire management assistance declaration.
    (2) Regional summary. Upon obtaining all necessary information on 
the fire or fire complex from the State and the Principal Advisor, the 
Regional Director will prepare a summary report to accompany the 
State's request. The summary should include a discussion of the threat 
of a major disaster.


Sec. 204.24  Determination on request for a fire management assistance 
declaration.

    The Associate Director will review all information submitted in the 
State's request along with the Principal Advisor's assessment and 
Regional summary and render a determination. When possible, the 
Associate Director will evaluate the request and make a determination 
within several hours. Once the Associate Director makes a 
determination, the Associate Director will promptly notify the Regional 
Director. The Regional Director will then inform the State of the 
determination.


Sec. 204.25  FEMA-State agreement for fire management assistance grant 
program.

    At the beginning of each calendar year, the Governor and the 
Regional Director will enter into a year-long FEMA-State Agreement for 
the Fire Management Assistance Grant Program (Agreement). The State 
must have a current signed Agreement before receiving Federal funding 
for fire management assistance grants. We will provide no FEMA funding 
absent a signed Agreement. The parties may add properly executed 
amendments to

[[Page 39723]]

modify the standing Agreement throughout the year when needed for 
program changes or when signatory parties change.


Sec. 204.26  Appeal of fire management assistance declaration denial.

    (a) Submitting an appeal. When we deny a State's request for a fire 
management assistance declaration, the Governor or GAR may appeal the 
decision in writing within 30 days after the date of the letter denying 
the request. The State should submit this one-time request for 
reconsideration in writing, with appropriate additional information, to 
the Associate Director through the Regional Director. The Associate 
Director will notify the State of his/her determination on the appeal, 
in writing, within 90 days of the receipt of the appeal or the receipt 
of additional requested information.
    (b) Requesting a time-extension. The Associate Director may extend 
the 30-day period provided that the Governor or the GAR submits a 
written request for such an extension within the 30-day period. The 
Associate Director will evaluate the need for an extension based on the 
reasons cited in the request and either approve or deny the request for 
an extension.


Secs. 204.27-204.40  [Reserved]

Subpart C--Eligibility


Sec. 204.41  Eligible applicants.

    (a) The following entities are eligible to apply for a subgrant 
under an approved fire management assistance grant:
    (1) State and local governments; and
    (2) Indian tribes or authorized tribal organizations and Alaska 
Native villages or organizations, but not Alaska Native corporations, 
the ownership of which is vested in private individuals. A tribe or 
Alaska Native village may apply either to the State or directly to 
FEMA.
    (b) Entities that are not eligible to apply for a subgrant as 
identified in paragraph (a) of this section, such as privately owned 
entities and volunteer firefighting organizations, may be reimbursed 
through a contract or compact with an eligible applicant for eligible 
costs associated with the fire or fire complex.
    (c) Eligibility is contingent upon the findings that the resources 
were requested by the Incident Commander or other comparable State 
official.
    (d) The activities performed must be the legal responsibility of 
the applying entity, required as the result of the fire or fire complex 
for which a fire management assistance declaration was approved, and 
located within the declared area.


Sec. 204.42  Eligible costs.

    (a) General. (1) All eligible work and related costs must be 
associated with the incident period of a declared fire.
    (2) Before obligating Federal funds the Regional Director must 
review and approve the initial grant application, along with project 
worksheets submitted with the application and any subsequent amendments 
to the application.
    (3) Federal funds will be awarded to subgrantees in accordance with 
State law and procedure and in compliance with 44 CFR part 13.
    (b) Equipment and supplies. Personal comfort and safety items 
normally provided by the State under field conditions for firefighter 
health and safety, including:
    (1) Firefighting supplies, tools, materials, expended or lost, to 
the extent not covered by reasonable insurance, will be reimbursed 
based on the cost to replace new comparable items. (Examples: shovels, 
fire boots, and retardant).
    (2) Operation and maintenance costs of publicly owned, contracted, 
rented, or volunteered equipment used in eligible firefighting 
activities.
    (3) Use of U.S. Government-owned equipment based on reasonable 
costs as billed by the Federal agency and paid by the State. (Note: 
only direct costs for use of Federal Excess Personal Property (FEPP) 
vehicles and equipment on loan to State Forestry and local cooperators 
may be eligible).
    (4) Repair of equipment damaged in fire suppression activities, to 
the extent not covered by reasonable insurance, may be funded based on 
reasonable State equipment rates or FEMA equipment rates, whichever are 
lower.
    (5) Replacement of equipment lost or destroyed in fire suppression 
activities, to the extent not covered by reasonable insurance, will be 
based on the actual depreciated value of the equipment.
    (b) Labor costs. (1) Federal funding under the fire management 
assistance grant for labor costs may be provided for:
    (i) Overtime for permanent or reassigned state and local employees.
    (ii) Regular time and overtime for temporary and contract employees 
hired to perform fire related activities.
    (2) The straight or regular time salaries and benefits of a 
subgrantee's permanently employed personnel (for example, firefighters) 
are not eligible in calculating the costs of eligible work under 
sections 403 and 420 of the Stafford Act.
    (c) Travel and per diem costs. Travel and per diem of employees who 
are providing services directly associated with eligible fire related 
activities may be eligible. This includes:
    (1) Expenses to provide field camps and meals when made available 
in place of per diem; as well as
    (2) Travel and per diem expenses incurred by the Principal Advisor 
east of the Mississippi River and in Texas.
    (d) Pre-positioning costs. The actual costs of pre-positioning 
Federal resources for up to two weeks before the declaration may be 
eligible when those resources are used in response to a declared fire 
at the Incident Commander's request. For extraordinary fire events, the 
Regional Director may authorize funding for the actual cost of pre-
positioning out-of-State and international resources, in addition to 
Federal resources, for up to 30 days before the declaration, when those 
resources were used on the declared fire at the Incident Commander's 
request.
    (e) Emergency work. We may authorize the use of section 403, 
Essential Assistance, under an approved fire management assistance 
grant when directly related to the mitigation, management, and control 
of the declared fire. Essential assistance activities that may be 
eligible include police barricading and traffic control, extraordinary 
emergency operations center expenses, evacuations and sheltering, 
search and rescue, arson investigation teams, public information, and 
the limited removal of trees that pose a threat to the general public.
    (f) Repair of damage caused by firefighting activities. Repair of 
damage caused by eligible firefighting activities listed in this 
subpart involves short term actions to repair and rehabilitate damage 
to lands, resources, and facilities directly caused by the wildland 
fire suppression effort or activities. This includes bulldozer lines, 
camps, and staging areas; damaged facilities (fences, buildings, 
bridges, etc.), handlines, roads, etc. This work should be complete 
before demobilization, or as soon thereafter as practicable. Damage 
caused by backfires and burnouts to stop fire spread falls under fire 
damage restoration and does not qualify as damage caused by 
firefighting activities.
    (g) Mobilization and demobilization. Costs for mobilization to, and 
demobilization from, a fire or fire complex may be eligible for 
reimbursement. Demobilization may be claimed at a delayed date if 
deployment involved one or more approved events. If claiming 
mobilization and demobilization charges at a delayed

[[Page 39724]]

date, such charges must be claimed against the first declared fire or 
fire complex.
    (h) Fires on co-mingled Federal/State lands. Reasonable costs for 
the mitigation, management, and control of a fire or fire complex 
burning on Federal land may be eligible in cases where the State has a 
responsibility for suppression activities under an agreement to perform 
such action on a non-reimbursable basis. (This provision is an 
exception to normal FEMA policy under the Act and is intended to 
accommodate only those rare instances that involve State firefighting 
on a Stafford Act section 420 fire incident involving co-mingled 
Federal/State and privately-owned forest or grassland.)


Sec. 204.43  Ineligible costs.

    Costs not directly associated with the incident period are 
ineligible. The exception to this item involves costs associated with 
eligible pre-positioning, mobilization and demobilization activities, 
and grant administrative requirements, which are directly related to 
the approved fire management assistance grant. Additional ineligible 
costs include:
    (a) Costs incurred in the mitigation, management, and control of 
undeclared fires;
    (b) Costs related to planning, presuppression (i.e., cutting fire-
breaks without the presence of an imminent threat, training, road 
widening, and other similar activities), and recovery (i.e., land 
rehabilitation activities, such as seeding, planting operations, and 
erosion control, or the salvage of timber and other materials, and 
restoration of facilities damaged by fire);
    (c) Regular time costs for permanent or reassigned employees of the 
applicant;
    (d) Costs for mitigation, management, and control of a fire on co-
mingled Federal land when such costs are reimbursable to the State by a 
Federal agency under another statute (See 44 CFR part 151);
    (e) Fires fought on Federal land are generally the responsibility 
of the Federal Agency that owns or manages the land. Costs incurred 
while fighting fires on federally owned land are not eligible under the 
Fire Management Assistance Grant Program except as noted in 
Sec. 204.42(i).


Secs. 204.44-204.50  [Reserved]

Subpart D--Application Procedures


Sec. 204.51  Application and approval procedures for a fire management 
assistance grant.

    (a) Preparing and submitting an application. (1) After the approval 
of a fire management assistance declaration, the State may submit an 
application package for a grant to the Regional Director. The 
application package must include the SF 424 and FEMA Form 20-16a, as 
well as supporting documentation for the budget.
    (2) The State should submit its application within nine months of 
the declaration. Upon the request of the State, the Regional Director 
may grant an extension for up to 3 months. The State's request must 
include a justification for the extension.
    (b) Fire Cost Threshold. (1) We will approve the initial grant 
award to the State when we determine that the State's application 
demonstrates that the total eligible costs for a declared fire meet or 
exceed the fire cost threshold. The fire cost threshold for a State is 
the greater of the following:
    (i) $100,000; or
    (ii) five percent of $1.04 per capita of the State population, 
adjusted periodically for inflation using the Consumer Price Index for 
All Urban Consumers published annually by the Department of Labor.
    (2) States must document the total eligible costs for a declared 
fire on project worksheets, which they must submit with the grant award 
application.
    (3) We will not consider the costs of pre-positioning resources for 
the purposes of determining whether the application meets the fire cost 
threshold.
    (4) When the State's total eligible costs associated with the fire 
management assistance declaration meet or exceed the fire cost 
threshold eligible costs will be cost shared in accordance with 
Sec. 204.61.
    (c) Approval of the grant award. The Regional Director has 45 days 
from receipt the State's grant application or an amendment to the 
State's grant application, including attached supporting project 
worksheet(s), to review and approve or deny the grant application or 
amendment; or to notify the Grantee of a delay in processing funding.
    (d) Obligation of the Grant. Before we approve a grant award, the 
Grantee must submit a State Administrative Plan and a Hazard Mitigation 
Plan to the Regional Director for review and approval. Once approved, 
the Grantee must incorporate these plans into the State Operations Plan 
for the Fire Management Assistance Program under Sec. 204.22 
(b)(2)(viii).
    (1) State administrative plan. (i)The State shall develop an 
Administrative Plan (or have a current Administrative Plan on file with 
FEMA) that describes the procedures for the administration of the Fire 
Management Assistance Grant Program. The Plan shall include, at a 
minimum, the items listed below:
    (A) The designation of the State agency or agencies which will have 
responsibility for program administration.
    (B) The identification of staffing functions for the Fire 
Management Assistance Program, the sources of staff to fill these 
functions, and the management and oversight responsibilities of each.
    (C) The procedures for:
    (1) Notifying potential applicants of the availability of the 
program;
    (2) Assisting FEMA in determining applicant eligibility;
    (3) Submitting and reviewing subgrant applications;
    (4) Processing payment for subgrants;
    (5) Submitting, reviewing, and accepting subgrant performance and 
financial reports;
    (6) Monitoring, close-out, and audit and reconciliation of 
subgrants;
    (7) Recovering funds for disallowed costs;
    (8) Processing appeal requests and requests for time extensions; 
and
    (9) Providing technical assistance to applicants and subgrant 
recipients, including briefings for potential applicants and materials 
on the application procedures, program eligibility guidance and program 
deadlines.
    (ii) As with the development of the State Operations Plan for the 
Fire Management Assistance Program, the Grantee may request the RD to 
provide technical assistance in the preparation of the State 
Administrative Plan.
    (2) Hazard Mitigation Plan. As a requirement of receiving funding 
under a fire management assistance grant a State or tribal 
organization, acting as Grantee, must:
    (i) Develop a Hazard Mitigation Plan in accordance with 44 CFR part 
206, subpart M, that addresses wildfire risks and mitigation measures; 
or
    (ii) Incorporate wildfire mitigation into the existing Hazard 
Mitigation Plan developed and approved under 44 CFR part 206, subpart M 
that also addresses wildfire risk and contains a wildfire mitigation 
strategy and related mitigation initiatives.

[[Page 39725]]

Sec. 204.52  Application and approval procedures for a subgrant under a 
fire management assistance grant.

    (a) Request for Fire Management Assistance. (1) State, local, and 
tribal governments interested in applying for subgrants under an 
approved fire management assistance grant must submit a Request for 
Fire Management Assistance to the Grantee in accordance with State 
procedures and within timelines set by the Grantee, but no longer than 
30 days after the date of the declaration.
    (2) The Grantee will review and approve the Request in accordance 
with Sec. 204.41, and forward the Request to the Regional Director for 
final review and approval.
    (3) The Regional Director will approve or deny the request based on 
the eligibility requirements outlined in Sec. 204.41, Eligible 
applicants.
    (b) Preparing a project worksheet. Once the Regional Director 
approves an applicant's Request for Fire Management Assistance, the 
Regional Director's staff may begin to work with the Principal Advisor 
and the Grantee and local staff to prepare Project Worksheets (FEMA 
Form 90-91). The State will be the primary contact for transactions 
with and on behalf of the applicant.
    (c) Submitting a project worksheet. (1) Applicants should submit 
all Project Worksheets through the Grantee for approval and transmittal 
to the Regional Director as amendments to the State's application.
    (2) The Grantee will determine the deadline for an applicant to 
submit completed Project Worksheets, but the deadline must be no later 
than six months from the date of the declaration.
    (3) At the request of the Grantee, the Regional Director may grant 
an extension of up to three months. The Grantee must include a 
justification in its request for an extension.
    (4) $1,000 project worksheet minimum. When the costs reported are 
less than $1,000, that work is not eligible and we will not approve 
that Project Worksheet.


Sec. 204.53  Certifying costs and payments.

    (a) The Grantee must certify that all costs reported on applicant 
project worksheets were incurred for work that was performed in 
compliance with FEMA law, regulation, policy and guidance applicable to 
the Fire Management Assistance Grant Program, as well as with the terms 
and conditions outlined for the administration of the grant in the 
FEMA-State Agreement for the Fire Management Assistance Grant Program.
    (b) Advancement/Reimbursement for State grant costs will be:
    (1) Processed through the U.S. Department of Health and Human 
Services SMARTLINK system; and
    (2) In compliance with 44 CFR 13.21 and 31 CFR part 205.


Sec. 204.54  Appeal of cost and eligibility determinations.

    Applicants may appeal any cost or eligibility determination FEMA 
makes related to a fire management assistance grant through a two level 
appeal process.
    (a) First level appeal. Applicants should submit the first level 
appeal through the State to the Regional Director, in writing, within 
60 days after a receipt of notice of the action being appealed. The 
Regional Director will notify the State of the decision in writing 
within 90 days of the receipt of the appeal or the receipt of 
additional requested information.
    (b) Second level appeal. Applicants should submit the second level 
appeal to the Associate Director through the State and Regional 
Director, in writing, within 60 days of receipt of the Regional 
Director's denial. The Associate Director will notify the State of the 
decision in writing within 90 days of the receipt of the appeal or the 
receipt of additional requested information. The decision of the 
Associate Director is the final decision for the Agency.
    (c) Technical advice. In appeals involving highly technical issues, 
the Associate Director or Regional Director may, in his or her 
discretion, submit the appeal to an independent scientific or technical 
individual(s) who may provide subject matter expertise. The period for 
this technical review may be in addition to other allotted time 
periods. Within 90 days of the receipt of the report, the Regional 
Director or Associate Director will notify the Grantee in writing of 
the disposition of the appeal.


Secs. 204.55-204.60  [Reserved]

Subpart E--Grant Administration


Sec. 204.61  Cost share.

    (a) All fire management assistance grants are subject to a cost 
share. The Federal cost share for fire management assistance grants is 
seventy-five percent (75%). However, for extraordinary fire events, the 
Associate Director may increase the Federal cost to ninety percent 
(90%) whenever actual Federal obligations under this part, excluding 
FEMA administrative costs, meet or exceed a qualifying threshold as 
defined in 44 CFR 206.47(b). As stated in Sec. 204.25, provisions for 
the cost share will be outlined in the terms and conditions of the FEMA 
State Agreement for Fire Management Assistance.
    (b) In making a determination to adjust the Federal cost share to 
90 percent, the Associate Director will take into consideration the 
impact of declared fires in the State during the calendar year.


Sec. 204.62  Duplication of programs.

    (a) Duplication of benefits. We provide supplementary assistance 
under the Stafford Act, which generally may not duplicate benefits 
received by or available to the applicant from insurance, other 
assistance programs, legal awards, or any other source to address the 
same purpose. An applicant must notify us of all benefits that it 
receives or anticipates from other sources for the same purpose, and 
must seek all such benefits available to them. We will reduce the grant 
by the amounts available for the same purpose from another source. We 
may provide assistance under this part when other benefits are 
available to an applicant, but the applicant will be liable to us for 
any duplicative amounts that it receives or has available to it from 
other sources, and must repay us for such amounts.
    (b) Duplication of programs. We will not provide assistance under 
this Part for activities for which another Federal agency has more 
specific or primary authority to provide assistance for the same 
purpose. We may disallow or recoup amounts that fall within another 
Federal agency's authority. We may provide assistance under this part, 
but the applicant must agree to seek assistance from the appropriate 
Federal agency and to repay us for amounts that are within another 
Agency's authority.
    (c) Negligence. We will provide no assistance to an applicant for 
costs attributable to applicant's own negligence. If the applicant 
suspects negligence by a third party for causing a condition for which 
we made assistance available under this part, the applicant is 
responsible for taking all reasonable steps to recover all costs 
attributable to the negligence of the third party. We generally 
consider such amounts to be duplicated benefits available to the 
grantee or subgrantee, and will treat them consistent with paragraph 
(a) of this section.


Sec. 204.63  Allowable costs.

    (a) 44 CFR 13.22 establishes general policies for determining 
allowable costs.
    (b) We will reimburse direct costs for the administration of a fire 
management assistance grant under 44 CFR part 13.

[[Page 39726]]

    (c) We will reimburse indirect costs for the administration of a 
fire management assistance grant in compliance with the Grantee's 
approved indirect cost rate under OMB Circular A-87, or, at our option, 
as management costs under section 324 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act.


Sec. 204.64  Reporting and audit requirements.

    (a) Reporting. Within 90-days of the Performance Period expiration 
date, the State shall submit a final:
    (1) Financial Status Report (FEMA Form 20-10), which reports all 
costs incurred within the incident period and all administrative costs 
incurred within the performance period; and
    (2) Performance period, which certifies that only costs approved in 
the application received reimbursement for costs identified in the 
subgrant application.
    (b) Audit. (1) Audits will be performed, for both the Grantee and 
the subgrantees, under 44 CFR 13.26 or OMB Circular A-133, as 
appropriate.
    (2) FEMA may elect to conduct a program-specific Federal audit on 
the Fire Management Assistance Grant or a subgrant.

    Dated: July 25, 2001.
Michael D. Brown,
General Counsel.
[FR Doc. 01-19011 Filed 7-31-01; 8:45 am]
BILLING CODE 6718-02-P