[Federal Register Volume 66, Number 220 (Wednesday, November 14, 2001)]
[Rules and Regulations]
[Pages 57342-57353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28577]



[[Page 57341]]

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Part VI





Federal Emergency Management Agency





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44 CFR Parts 2, 9, 10, 204 and 206



Disaster Assistance; Fire Management Assistance Grant Program; Final 
Rule

  Federal Register / Vol. 66, No. 220 / Wednesday, November 14, 2001 / 
Rules and Regulations  

[[Page 57342]]


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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Parts 2, 9, 10, 204 and 206

RIN 3067-AD24


Disaster Assistance; Fire Management Assistance Grant Program

AGENCY: Federal Emergency Management Agency.

ACTION: Final rule.

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SUMMARY: This rule implements section 420 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act as amended by the Disaster 
Mitigation Act of 2000, and provides overall program guidance on the 
operation and administration of the Fire Management Assistance Grant 
Program.

DATES: This rule is effective October 30, 2001.
    Applicability Date: The rule applies for fires declared on or after 
October 30, 2001.

FOR FURTHER INFORMATION CONTACT: Curtis Carleton, Chief, Community and 
Family Services Branch, Federal Emergency Management Agency, 500 C 
Street SW., room 713, Washington, DC 20472, 202-646-4535; (facsimile) 
202-646-2723; or (e-mail) [email protected].

SUPPLEMENTARY INFORMATION: On August 1, 2001, at 66 FR 39715, we 
published a proposed rule for the Fire Management Assistance Grant 
Program in the Federal Register. After careful consideration of the 
comments received in response to the proposed rule, we are publishing 
this final rule to implement the Fire Management Assistance Grant 
Program as directed by the Disaster Mitigation Act of 2000, Pub. L. 
106-390. The Disaster Mitigation Act of 2000 established a new program 
under Section 420 of the Stafford Act, 42 U.S.C. 5187--the Fire 
Management Assistance Grant Program. By statute, the Fire Management 
Assistance Grant Program is to be implemented on October 30, 2001, one 
year from enactment of the Disaster Mitigation Act of 2000. Once 
implemented, the Fire Management Assistance Grant Program replaces the 
Fire Suppression Assistance Program currently authorized under Section 
420 of the Stafford Act.
    We received comments from 12 State emergency managers and foresters 
on the proposed rule for the Fire Management Assistance Grant Program. 
The majority of comments addressed our proposals for a fire cost 
threshold, including the possibility of establishing a cumulative fire 
cost threshold; a State operations plan; and pre-positioning. Other 
comments received addressed the 90 percent cost-share, the 
ineligibility of regular time for permanently employed personnel, the 
definition of the Wildland/Urban Interface, and the payment and role of 
the Principal Advisor.

Fire Cost Threshold

    A majority of commenters, 11 of 12, expressed concern with the 
calculation and application of the individual fire cost threshold. In 
particular commenters objected to the individual fire cost threshold 
being applied to each and every declared fire, and expressed support 
for a cumulative fire cost threshold which would recognize numerous 
smaller fires burning throughout a State.
    As presented in the proposed rule, the individual fire cost 
threshold is based on a calculation of five percent  x  $1.04 \1\  x  
the State population, or $100,000, whichever is higher. Almost all the 
11 commenters indicated that this individual fire cost threshold is too 
high a threshold and would penalize States nationwide, regardless of 
population, if applied to every declared fire.
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    \1\ On October 9, 2001, a Notice of Adjustment of Statewide Per 
Capita Impact Indicator was published. In the notice, the Statewide 
per capita was increased from $1.04 to $1.07. This increase was 
based on an increase in the Consumer Price Index for All Urban 
Consumers of 2.7 percent for the 12-month period ending in August 
2001. The Bureau of Labor Statistics of the U.S. Department of Labor 
released the information on September 18, 2001. The final rule for 
the Fire Management Assistance Grant uses $1.07. This figure will be 
adjusted annually.
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    One goal in developing the Fire Management Assistance Grant Program 
was to ensure as much consistency as possible with the Public 
Assistance Program, which is also designed to provide assistance to 
State and local governments. In evaluating a State's request for public 
assistance under a Presidential major disaster, the $1.07 per capita of 
the State population is used as a financial indicator that a disaster 
is of such a size and magnitude that it may be beyond State and local 
resources and capabilities to respond and Federal assistance may be 
warranted. Similarly, in evaluating a State's initial grant application 
under a fire management assistance declaration, five percent of $1.07 
per capita statewide will be used as a financial indicator that a 
declared fire was of such a size and magnitude that it was beyond State 
and local resources and capabilities to respond and that Federal 
assistance is warranted.
    Although we feel that the individual fire cost threshold published 
in the proposed rule is reasonable and justified and will help serve as 
a means of ensuring that Federal assistance remains supplemental to 
State and local capabilities, in response to these comments, we have 
included a calculation for a cumulative fire cost threshold, while 
retaining the individual fire cost threshold in the final rule 
(Sec. 204.51).
    To meet the cumulative fire cost threshold, the total costs of all 
declared and non-declared fires for which a State assumes 
responsibility in a given calendar year must meet the threshold. The 
cumulative fire cost threshold will be 3x the individual fire cost 
threshold presented in the proposed rule or $500,000, whichever is 
higher. Assistance will only be provided for the declared fire 
responsible for meeting or exceeding the cumulative fire cost threshold 
and any future declared fires for that calendar year. Any previously 
declared fires during the calendar year which failed to meet the 
individual fire cost threshold and did not trigger the cumulative fire 
cost threshold will be ineligible for any assistance under the Fire 
Management Assistance Grant Program. The cumulative fire cost threshold 
does not replace the individual fire cost threshold, but is an 
alternative threshold created to ensure the fullest level of assistance 
is provided to States when fires are of a such magnitude and severity 
as would constitute a major disaster.
    The fire cost threshold concept is new and untested. We will 
therefore, closely monitor its implementation to assure that it 
facilitates the fair and consistent distribution of assistance under 
the new program, as intended. Should significant weaknesses or 
inequities surface, we will correct them with a rule change as 
appropriate.

Operations Plan

    Seven commenters provided us with input regarding the State 
Operations Plan for the Fire Management Assistance Program. Most 
commenters agreed that the Operations Plan is a good concept, but 
expressed concern with the developmental requirements of the plan as 
well as the role the plan would have in the declaration and grants 
management processes.
    In particular, many commenters expressed concern that FEMA would 
interpret the Operations Plans differently than States intended, and 
that the information to be collated in the Operations Plan is too 
restrictive if the purpose of the plan is to assist us in evaluating 
State requests for fire management assistance declarations. Commenters 
also disagreed with the

[[Page 57343]]

requirement prohibiting States from submitting an Operations Plan that 
reduced or lowered capabilities and resources from prior year levels. 
These commenters cited budgetary limitations and legislative decisions 
that may reduce funding levels from previous years, and asked us to 
reconsider this requirement.
    Based upon these comments, it appears to us that the Operations 
Plan has exceeded the scope we had initially intended and has become 
unduly burdensome. From a time and resources perspective to a planning 
and implementation perspective, the Operations Plan no longer seems to 
be an appropriate tool for the Fire Management Assistance Grant 
Program. Additionally, we believe that, to the extent that the 
Operations Plan may have helped indicate State capability, the fire 
cost threshold will adequately ensure that federal funding remains 
supplemental to State and local capabilities and resources. Therefore, 
we have decided to eliminate the Operations Plan from the final rule.
    In the final rule, however, we have ensured that certain 
information, which we had proposed would be included in the Operations 
Plan, will still be available to us through other provisions. A State 
will identify its legislative authorities for firefighting and its 
compliance with the laws and provisions applicable to the Fire 
Management Assistance Grant Program in the FEMA-State Agreement for the 
Fire Management Assistance Grant Program. A State also will still be 
required to develop and submit a Hazard Mitigation Plan and a State 
Administrative Plan to the Regional Director for approval. A State can 
always provide the mobilization plan, as well as staffing and resource 
and jurisdictional information from the State Fire Plan, should it be 
appropriate.

Pre-positioning

    Seven commenters opposed our proposal on pre-positioning. 
Specifically, commenters indicated that pre-positioning only Federal 
resources for an initial two-week period is shortsighted. Many 
commenters supported the inclusion of out-of-State and compact 
resources in the two-week period, while others not only supported these 
additional resources, but also the use of in-State and local resources.
    Commenters also asked us to define what was considered to be an 
``extraordinary fire event,'' for which States could possibly be 
eligible to receive funding for pre-positioned resources for up to 30 
days. Many commenters pointed out that typically whenever a State 
requests Federal assistance something ``extraordinary'' has occurred. A 
few commenters suggested that rather than separating pre-positioning 
into finite periods of time which must be directly associated with a 
declared fire (an initial period of up to 2 weeks, with a maximum of up 
to 30 days), that we base eligibility on the severity of conditions 
existing that would be conducive to a catastrophic fire happening if 
resources were not available for immediate response.
    As a result of these comments, in the final rule costs for the pre-
positioning of Federal, out-of-State (including compact), and 
international resources may be eligible for pre-positioning, but only 
for the period, up to a maximum of 21 days before the declared fire, 
that the State can demonstrate such pre-positioning was warranted based 
on recognized scientific indicators. These indicators include, but are 
not limited to drought indices, short-term weather forecasts, the 
current number of fires burning in the State, and the availability of 
in-state firefighting resources, and may also include other 
quantitative indicators with which to measure the increased risk of the 
threat of a major disaster.
    The Regional Director will determine the number of days of pre-
positioning to be approved for Federal funding, up to a maximum of 21 
days before the declared fire. All eligible pre-positioning will still 
need to be directly associated with a declared fire to be eligible 
since Section 420 is very clear that all assistance authorized must be 
for the ``mitigation, management, and control of any fire on public or 
private forestland or grassland that threatens such destruction as 
would constitute a major disaster.'' (Emphasis added).

Cost Share

    Four commenters provided input on the cost share. All four 
commenters welcomed streamlining the cost-share to 75 percent Federal, 
25 percent non-Federal. The commenters revealed, however, that the 
possibility of receiving a 90 percent cost-share was more confusing 
than helpful and added an element of complexity not keeping with the 
original intent of a simple formula of 75 percent Federal cost-share 
for all declared fires.
    Based on these comments and the fact that the 90 percent Federal 
cost-share would be used infrequently, we have decided to eliminate the 
90 percent Federal cost-share in the final rule.

Grants Management

    Four commenters wrote to provide us with suggestions to improve our 
grants management process. Most of the discussion was focused on our 
requirement that the Standard Form (SF) 424 (Request for Federal 
Assistance) document actual costs. Commenters, citing the application 
process for other Stafford Act disaster assistance programs, such as 
the Public Assistance Program, suggested that the SF 424 be submitted 
based on estimated costs. As actual costs are received, the SF 424 then 
can be amended to reflect any adjustments. Commenters also provided a 
myriad of other changes we could implement to overhaul our grants 
management process. The proposed changes included using forms other 
than the FEMA forms listed, and instituting new deadlines for submittal 
of these forms and the completion of the grants management process.
    Generally, costs under the Fire Management Assistance Grant Program 
will be submitted after all eligible work has been completed and will 
be documented on the SF 424 as non-construction costs; whereas costs 
under the Public Assistance Program are submitted before eligible work 
has begun and are documented on the SF 424 primarily as construction 
costs.
    Since eligible work under the Public Assistance Program can take 
several months to years to complete and is a longer-term process in 
which we provide progress payments as work is completed, it is not 
uncommon for the SF 424 to be submitted by the Grantee based on the 
estimated costs of the disaster. For the purposes of the Fire 
Management Assistance Grant Program, however, all eligible work should 
be completed no later than 30 days after the close of the incident 
period for a declared fire. Due to the short-term, non-construction 
nature of the work performed and costs incurred, we do not see the need 
to base approval of the initial grant award on estimated costs. 
Therefore, under the Fire Management Assistance Grant Program, we will 
continue to approve the initial grant application based on actual 
costs. Once a State has documented that its actual costs meet the fire 
cost threshold, we may approve the initial grant award and the State 
may submit amendments to the grant award as necessary.
    Based on our consultation with our Financial and Acquisition 
Management Division, as well as our Regional program staff, no changes 
will be made to our grants management process at this time. We 
appreciate the comments received and will be closely monitoring the 
grants management process under the Fire Management Assistance Program 
once the program takes effect on October 30, 2001.

[[Page 57344]]

Regular Time

    Three commenters expressed concern that regular-time for 
permanently employed personnel is ineligible under the Fire Management 
Assistance Grant Program. These three commenters explained that there 
are real costs to States when permanently employed personnel are 
deployed in support of firefighting efforts. We understand that there 
are real costs to the State; however, the regular time salaries of 
permanently employed personnel, including those reassigned to the fire 
line, would still be incurred in the absence of a fire management 
assistance declaration. In addition, this approach is consistent with 
our practice in the Public Assistance Program. Therefore, regular time 
for permanently employed personnel will remain ineligible in the final 
rule.

Definition of Wildland/Urban Interface

    Three commenters suggested an alternative definition for wildland/
urban interface. The three commenters suggested that we use the 
definition of wildland/urban interface contained in the publication 
Fire in the West, the Wildland Urban Interface Problem. While a very 
thorough definition of wildland/urban interface, our discussions with 
the National Fire Protection Association and the Forest Service, United 
States Department of Agriculture, have led us to believe that this 
definition is by no means the definitive or nationally accepted 
definition of wildland/urban interface. Since we do not mention the 
wildland/urban interface anywhere in the final regulations, we are 
deleting it from the definitions section of the final rule 
(Sec. 204.3).

Payment of the Principal Advisor

    Three commenters asked why we pay for the Principal Advisor east of 
the Mississippi, but not west of the Mississippi. In 1996, we were 
advised by the Forest Service, USDA, that Principal Advisors west of 
the Mississippi do not require any reimbursement, while Principal 
Advisors east of the Mississippi require reimbursement beyond regularly 
scheduled hours. We have operated under this guidance ever since. Since 
this is a Federal policy, we have decided to delete this section from 
the final rule.

Role of the Principal Advisor

    The commenters who questioned our payment for the Principal Advisor 
also questioned the role of the Principal Advisor and indicated that 
the role was not made clear in the proposed rule. We feel that the role 
was clear in the proposed rule. We rely on the Principal Advisor to 
provide us with technical assistance in gathering the appropriate 
information to help us assess the potential threat posed by a fire or 
fire complex. Although we will not be providing any additional 
clarification in the final rule on the role of the Principal Advisor, 
we may consider doing so in related guidance materials still to be 
developed for the Fire Management Assistance Grant Program.

Criteria

    Two commenters discussed ``the potential impact on environmental 
and historic/cultural resources'' declaration criterion. One commenter 
suggested that we rethink the inclusion of this criterion since these 
resources are not eligible for assistance under the Fire Management 
Assistance Grant Program. Another commenter applauded the inclusion of 
this criterion in our overall evaluation criteria. Although it was our 
intent to recognize these resources and acknowledge them as important, 
we recognize that it is not appropriate to include this criterion in 
the content of the final rule. Therefore, this criterion has been 
removed from the final rule.

Other Comments

    We received various individual comments addressing demolition of 
damaged facilities and removal of demolition debris under Section 403, 
soil restoration/reseeding efforts under repair of firefighting damage, 
unreasonableness of the requirement to develop a hazard mitigation 
plan, and delegation of declaration authority to the Regional Director. 
While the discussions were thoughtful, and we understand the rationale 
for their proposal, we do not agree with these comments and have not 
made any changes in the final regulations to reflect these suggestions.
    We have made several changes to the proposed rule intended to 
improve the overall operation of the Fire Management Assistance Grant 
Program and the delivery of assistance under the program. These changes 
include the adoption of a cumulative fire cost threshold, the 
elimination of the State Operations Plan, the modification of our 
proposal for pre-positioning, and the elimination of a 90 percent 
Federal cost-share.
    This final rule also contains a new provision, Sec. 206.42(d), that 
was not in the proposed rule. The section reiterates the statutory 
provision concerning recovery of assistance for intentional acts 
contained in 42 U.S.C 5160.

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 rule to OMB for review. This 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 
currently authorized by Section 420 of the Stafford Act, and the 
components 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 rule will not have a significant impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act. This rule deals with assistance to States 
and local governments to provide supplemental Federal assistance to 
fight fires burning on publicly or privately owned forest or grassland 
which 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 this rule in consultation 
with the States and we estimate that the cost impacts of the changes 
are neutral. Thus, we do not expect the final 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 statement.

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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 rule to the Office of Management and 
Budget for review and approval. OMB has reviewed and approved the 
information collections in this rule and assigned OMB control number 
3067-0290.
    During the comment period we solicited 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 under a declared fire. 
The 424 and accompanying documentation must be submitted by a State to 
FEMA's Regional Director within 9 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 that has responsibility for program 
administration and ensure State compliance with the provisions of law 
and regulation applicable to fire management assistance grants.
    (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, Based on comments received regarding the use 
of the Operations Plan, we have eliminated the requirement from the 
final rule.
    (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 cost-effective mitigation alternatives that 
produce long-term benefits. We address mitigation of fire hazards as 
part of the State's comprehensive Hazard Mitigation Plan, described in 
44 CFR 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 hours
           Burden item                  Hours per         Respondents    per year (in           Comments
                                        respondent         per year         hours)
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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
                                                                                         described in the
                                                                                         proposed regulations
                                                                                         for the FMAGP.

[[Page 57346]]

 
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.
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 comprehensive
                                                                                         Hazard Mitigation Plan,
                                                                                         44 CFR Part 206,
                                                                                         Subpart M.
Appeals..........................  1 hour.............              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 hour.............              20              20  Notification consists of
                                                                                         a letter and supporting
                                                                                         documentation.
    Total Burden Hours...........  ...................  ..............           2,085
----------------------------------------------------------------------------------------------------------------

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

----------------------------------------------------------------------------------------------------------------
                                                      Number       Est'd hours/
                 Requests from:                      requests        requester       Cost/hour      Costs/year
----------------------------------------------------------------------------------------------------------------
States..........................................               9             172             $40         $61,812
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 this rule. Both FEMA and State concerns and the extent to which 
this rule meets those concerns are set out earlier in the preamble.

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 reviewing the rule, we find that the 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 tribal 
governments, on the relationship between the Federal Government and 
Indian tribal governments, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribal 
governments. Moreover, the 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

44 CFR Part 2

    Administrative practice and procedure.

44 CFR Part 9

    Flood Plains, Reporting and recordkeeping requirements.

44 CFR Part 10

    Environmental impact statements.

44 CFR Part 204

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

44 CFR Part 206

    Administrative practice and procedure, Community facilities, 
Disaster Assistance, Grant programs, Loan programs, Reporting and 
recordkeeping requirements.

    Accordingly, amend 44 CFR, chapter I as follows:

[[Page 57347]]

PART 2--ORGANIZATION, FUNCTIONS, AND DELEGATIONS OF AUTHORITY

    1. The authority citation for Part 2 continues to read as follows:

    Authority: 5 U.S.C. 552; Reorganization Plan No. 3 of 1978, 5 
U.S.C. App. 1; E.O. 12127, 3 CFR, 1979 Comp., p. 376; E.O. 12148, as 
amended, 3 CFR, 1979 Comp., p. 412.


Sec. 2.81  [Amended]

    2. In 44 CFR 2.81 amend the list of current OMB control numbers by 
inserting ``204......3067-0290'' between ``151 subpart B'' and 
``205.33''.

PART 9--FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS

    3. Revise the authority for Part 9 to read as follows:

    Authority: E.O. 11988 of May 24, 1977. 3 CFR, 1977 Comp., p. 
117; E.O. 11990 of May 24 1977, 3 CFR, 1977 Comp. p. 121; 
Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., 
p. 329; E.O. 12127 of March 31, 1979, 44 FR 19367, 3 CFR, 1979 
Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3 CFR, 1979 
Comp., p. 412, as amended.; E.O. 12127; E.O. 12148; 42 U.S.C. 5201.


Sec. 9.5  [Amended]

    4. Revise 44 CFR 9.5 (c)(6), to read ``Fire Management Assistance 
(Section 420).''

PART 10--ENVIRONMENTAL CONSIDERATIONS

    5. The authority for Part 10 continues to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; E.O. 11514 of March 7, 1970, 
35 FR 4247, as amended by E.O. 11991 of March 24, 1977, 3 CFR, 1977 
Comp., p. 123; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 
CFR, 1978 Comp., p. 329; E.O. 12127 of March 31, 1979, 44 FR 19367, 
3 CFR, 1979 Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 
3 CFR, 1979 Comp., p. 412, as amended.


Sec. 10.8  [Amended]

    6. Revise 44 CFR 10.8 (d)(2)(xix)(N) to read ``Fire Management 
Assistance Grants.''

    7. Add Part 204 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  Applicant eligibility.
204.42   Eligible costs.
204.43   Ineligible costs.
204.44-204.50   [Reserved]
Subpart D--Grant 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   Appeals.
204.55-204.60   [Reserved]
Subpart E--Grant Administration
204.61  Cost share.
204.62   Duplication and recovery of assistance.
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 procedures for the 
declaration and grants management processes for the Fire Management 
Assistance Grant Program in accordance with the provisions of section 
420 of the Stafford Act. This part also details applicant eligibility 
and the eligibility of costs to be considered under the program. 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 Indian tribal government submitting an 
application to us for a fire management assistance grant, or a State, 
local, or Indian tribal government submitting an application to the 
Grantee for a subgrant under an 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 or fire complex, 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 a declared 
fire.
    FEMA Form 90-91. see Project Worksheet.
    Fire complex. Two or more individual fires located in the same 
general area, which are assigned to a single Incident Commander.
    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 will 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 Grantee is the government to which a grant is awarded 
which is accountable for the use of the funds provided. The Grantee is 
the entire legal entity even if only a particular component of the 
entity is designated in the grant award document. Generally, the State, 
as designated in the FEMA-State Agreement for the Fire Management 
Assistance Grant Program, is the Grantee. However, after a declaration, 
an Indian tribal government may choose to be a Grantee, or it may act 
as a subgrantee under the State. An Indian tribal government acting as 
Grantee will assume the responsibilities of a ``state'', as described 
in this Part, for the purpose of administering the grant.

[[Page 57348]]

    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 cost-effective mitigation alternatives that 
produce long-term benefits. 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 finances of 
the field response.
    Incident period. The time interval during which the declared fire 
occurs. The Regional Director, in consultation with the Governor's 
Authorized Representative and the Principal Advisor, will establish the 
incident period. Generally, costs must be incurred during the incident 
period to be considered eligible.
    Indian tribal government. An Indian tribal government is any 
Federally recognized governing body of an Indian or Alaska Native 
tribe, band, nation, pueblo, village, or community that the Secretary 
of Interior acknowledges to exist as an Indian tribe under the 
Federally Recognized Tribe List Act of 1994, 25 U.S.C. 479a. This does 
not include Alaska Native corporations, the ownership of which is 
vested in private individuals.
    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 part 206.
    Local government. A local government is any county, municipality, 
city, town, township, public authority, school district, special 
district, intrastate district, council of governments (regardless of 
whether the council of governments is incorporated as a nonprofit 
corporation under State law), regional or interstate government entity, 
or agency or instrumentality of a local government; any Indian tribal 
government or authorized tribal organization, or Alaska Native village 
or organization; and any rural community, unincorporated town or 
village, or other public entity, for which an application for 
assistance is made by a State or political subdivision of a State.
    Mitigation, management, and control. Those activities undertaken, 
generally during the incident period of a declared fire, to minimize 
immediate adverse effects and to manage and control the fire. Eligible 
activities may include associated emergency work and pre-positioning 
directly related to the declared fire.
    Mobilization. The process and procedures used for activating, 
assembling, and transporting all resources that the Grantee requested 
to respond to support a declared fire.
    Performance Period. The time interval designated in block 13 on the 
Application for Federal Assistance (Standard Form 424) for the Grantee 
and all subgrantees to submit eligible costs and have those costs 
processed, obligated, and closed out by FEMA.
    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 fire activity likely to 
constitute the threat of a major disaster.
    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. The Principal 
Advisor also frequently participates with FEMA on other wildland fire 
initiatives.
    Project worksheet. FEMA Form 90-91, which identifies actual costs 
incurred by eligible applicants 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 for eligible emergency measures and repair, 
restoration, and replacement of damaged facilities. For further 
information, see Subparts G and H of Part 206.
    Regional Director. A director of a regional office of FEMA, or his/
her designated representative.
    Request for Federal Assistance. See Standard Form (SF) 424.
    Standard Form (SF) 424. The SF 424 is the Request for Federal 
Assistance. This is the form the State submits to apply for a grant 
under a fire management assistance declaration.
    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 firefighting resources.
    We, our, us mean FEMA.


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 major economic impact.


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

    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).


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

    (a) In processing a State's request for a fire management 
assistance

[[Page 57349]]

declaration, the Regional Director, in coordination with the Principal 
Advisor, will verify the information submitted in the State's request.
    (b) The Regional Director will then forward the State's request to 
the Associate Director for determination along 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 us with 
a technical assessment of the fire or fire complex for which the State 
is requesting a fire management assistance declaration. The Principal 
Advisor may consult with State agencies, usually emergency management 
or forestry, as well as the Incident Commander, in order to provide us 
with an accurate assessment.
    (2) Regional summary and recommendation. Upon obtaining all 
necessary information on the fire or fire complex from the State and 
the Principal Advisor, the Regional Director will provide the Associate 
Director with a summary and recommendation to accompany the State's 
request. The summary and recommendation 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. The determination will be 
based on the conditions of the fire or fire complex existing at the 
time of the State's request. 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.

    (a) After a State's request for a fire management assistance 
declaration has been approved, the Governor and Regional Director will 
enter into a standing FEMA-State Agreement (the Agreement) for the 
declared fire and for future declared fires in that calendar year. The 
State must have a signed and up-to-date FEMA-State Agreement before 
receiving Federal funding for fire management assistance grants. FEMA 
will provide no funding absent a signed and up-to-date Agreement. An 
Indian tribal government serving as Grantee, must sign a FEMA-Tribal 
Agreement, modeled upon the FEMA-State Agreement.
    (b) The Agreement states the understandings, commitments, and 
conditions under which we will provide Federal assistance, including 
the cost share provision and articles of agreement necessary for the 
administration of grants approved under fire management assistance 
declarations. The Agreement must also identify the State legislative 
authority for firefighting, as well as the State's compliance with the 
laws, regulations, and other provisions applicable to the Fire 
Management Assistance Grant Program.
    (c) For each subsequently declared fire within the calendar year, 
the parties must add a properly executed amendment, which defines the 
incident period and contains the official declaration number. Other 
amendments modifying the standing Agreement may be added throughout the 
year to reflect changes in the program or signatory parties.


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 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  Applicant eligibility.

    (a) The following entities are eligible to apply through a State 
Grantee for a subgrant under an approved fire management assistance 
grant:
    (1) State agencies;
    (2) Local governments; and
    (3) Indian tribal governments.
    (b) Entities that are not eligible to apply for a subgrant as 
identified in (a), 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 a finding that the Incident 
Commander or comparable State official requested the applying entity's 
resources.
    (d) The activities performed must be the legal responsibility of 
the applying entity, required as the result of the declared fire, and 
located within the designated 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) Grantees will award Federal funds to subgrantees under State 
law and procedure and complying with 44 CFR part 13.
    (b) Equipment and supplies. Eligible costs include:
    (1) Personal comfort and safety items normally provided by the 
State under field conditions for firefighter health and safety, 
including:
    (2) Firefighting supplies, tools, materials, expended or lost, to 
the extent not covered by reasonable insurance, will be replaced with 
comparable items.
    (3) Operation and maintenance costs of publicly owned, contracted, 
rented, or volunteer firefighting department equipment used in eligible 
firefighting activities to the extent any of these costs are not 
included in applicable equipment rates.
    (4) Use of U.S. Government-owned equipment based on reasonable 
costs as billed by the Federal agency and paid by the State. (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.)
    (5) Repair of equipment damaged in firefighting activities to the 
extent not covered by reasonable insurance. We will use the lowest 
applicable equipment rates, or other rates that we determine, to 
calculate the eligible cost of repairs.
    (6) Replacement of equipment lost or destroyed in firefighting 
activities, to the extent not covered by reasonable

[[Page 57350]]

insurance, will be replaced with comparable equipment.
    (b) Labor costs. Eligible costs include:
    (1) Overtime for permanent or reassigned State and local employees.
    (2) Regular time and overtime for temporary and contract employees 
hired to perform fire-related activities.
    (d) Travel and per diem costs. Eligible costs include:
    (1) Travel and per diem of employees who are providing services 
directly associated with eligible fire-related activities may be 
eligible.
    (2) Provision of field camps and meals when made available in place 
of per diem;
    (e) Pre-positioning Costs. (1) The actual costs of pre-positioning 
Federal, out-of-State (including compact), and international resources 
for a limited period may be eligible when those resources are used in 
response to a declared fire.
    (2) The Regional Director must approve all pre-positioning costs.
    (i) Upon approval of a State's request for a fire management 
assistance declaration by the Associate Director, the State should 
immediately notify the Regional Director of its intention to seek 
funding for pre-positioning resources.
    (ii) The State must document the number of pre-positioned resources 
to be funded and their respective locations throughout the State, 
estimate the cost of the pre-positioned resources that were used on the 
declared fire and the amount of time the resources were pre-positioned, 
and provide a detailed explanation of the need to fund the pre-
positioned resources .
    (iii) The State will base the detailed explanation on recognized 
scientific indicators, that include, but are not limited to, drought 
indices, short-term weather forecasts, the current number of fires 
burning in the State, and the availability of in-State firefighting 
resources. The State may also include other quantitative indicators 
with which to measure the increased risk of the threat of a major 
disaster.
    (iv) Based on the information contained in the State's 
notification, the Regional Director will determine the number of days 
of pre-positioning to be approved for Federal funding, up to a maximum 
of 21 days before the fire declaration.
    (3) Upon rendering his/her determination on pre-positioning costs, 
the Regional Director will notify the Associate Director of his/her 
determination.
    (f) Emergency work. We may authorize the use of section 403 of the 
Stafford Act, 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, but are not limited to, 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.
    (g) Temporary repair of damage caused by firefighting activities. 
Temporary repair of damage caused by eligible firefighting activities 
listed in this subpart involves short-term actions to repair damage 
directly caused by the firefighting effort or activities. This includes 
minimal repairs to bulldozer lines, camps, and staging areas to address 
safety concerns; as well as minimal repairs to facilities damaged by 
the firefighting activities such as fences, buildings, bridges, roads, 
etc. All temporary repair work must be completed within thirty days of 
the close of the incident period for the declared fire.
    (h) Mobilization and demobilization. Costs for mobilization to, and 
demobilization from, a declared fire may be eligible for reimbursement. 
Demobilization may be claimed at a delayed date if deployment involved 
one or more declared fires. If resources are being used on more than 
one declared fire, mobilization and demobilization costs must be 
claimed against the first declared fire.
    (i) Fires on co-mingled Federal/State lands. Reasonable costs for 
the mitigation, management, and control of a declared fire burning on 
co-mingled Federal and State 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 Stafford 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. Ineligible costs include the following:
    (a) Costs incurred in the mitigation, management, and control of 
undeclared fires;
    (b) Costs related to planning, pre-suppression (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) Costs for the straight or regular time salaries and benefits of 
a subgrantee's permanently employed or reassigned personnel;
    (d) Costs for mitigation, management, and control of a declared 
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 51);
    (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 (Request for Federal 
Assistance) and FEMA Form 20-16a (Summary of Assurances--Non-
construction Programs), as well as supporting documentation for the 
budget.
    (2) The State should submit its grant application within 9 months 
of the declaration. Upon receipt of the written request from 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 either of the following:
    (i) Total eligible costs for the declared fire meet or exceed the 
individual fire cost threshold; or
    (ii) Total costs of all declared and non-declared fires for which a 
State has assumed responsibility in a given calendar year meet the 
cumulative fire cost threshold.
    (2) The individual fire cost threshold for a State is the greater 
of the following:
    (i) $100,000; or
    (ii) Five percent  x  $1.07  x  the State population, adjusted 
annually for inflation using the Consumer Price

[[Page 57351]]

Index for All Urban Consumers published annually by the Department of 
Labor.
    (3) The cumulative fire cost threshold for a State is the greater 
of the following:
    (i) $500,000; or
    (ii) Three times the five percent  x  $1.07  x  the State 
population as described in Sec. 204.51(b)(2)(ii).
    (4) States must document the total eligible costs for a declared 
fire on Project Worksheets, which they must submit with the grant 
application.
    (5) We will not consider the costs of pre-positioning resources for 
the purposes of determining whether the grant application meets the 
fire cost threshold.
    (6) 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 State's grant application. 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 the State's grant 
application, the State must have an up-to-date State Administrative 
Plan and a Hazard Mitigation Plan that has been reviewed and approved 
by the Regional Director. Once these plans are approved by the Regional 
Director, the State's grant application may be approved and we may 
begin to obligate the Federal share of funding for subgrants to the 
Grantee.
    (1) State administrative plan.
    (i) The State must 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 will 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) The Grantee may request the Regional Director 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.


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 close of the incident period.
    (2) The Grantee will review and forward the Request to the Regional 
Director for final review and determination. The Grantee may also 
forward a recommendation for approval of the Request to the Regional 
Director when appropriate.
    (3) The Regional Director will approve or deny the request based on 
the eligibility requirements outlined in Sec. 204.41.
    (4) The Regional Director will notify the Grantee of his/her 
determination; the Grantee will inform the applicant.
    (b) Preparing a Project Worksheet. (1) Once the Regional Director 
approves an applicant's Request for Fire Management Assistance, the 
Regional Director's staff may begin to work with the Grantee and local 
staff to prepare Project Worksheets (FEMA Form 90-91).
    (2) The Regional Director may request the Principal Advisor to 
assist in the preparation of Project Worksheets.
    (3) 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 close of the incident period.
    (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) Project Worksheets will not be accepted after the deadline and 
extension specified in paragraphs (c)(2) and (c)(3) of this section has 
expired.
    (5) $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) By submitting applicants' Project Worksheets to us, the Grantee 
is certifying that all costs reported on applicant Project Worksheets 
were incurred for work that was performed in compliance with FEMA laws, 
regulations, 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 
processed as follows:
    (1) Through the U.S. Department of Health and Human Services 
SMARTLINK system; and
    (2) In compliance with 44 CFR 13.21 and U. S. Treasury 31 CFR part 
205, Cash Management Improvement Act.


Sec. 204.54  Appeals.

    An eligible applicant, subgrantee, or grantee may appeal any 
determination we make related to an application for the provision of 
Federal assistance according to the procedures below.

[[Page 57352]]

    (a) Format and content. The applicant or subgrantee will make the 
appeal in writing through the grantee to the Regional Director. The 
grantee will review and evaluate all subgrantee appeals before 
submission to the Regional Director. The grantee may make grantee-
related appeals to the Regional Director. The appeal will contain 
documented justification supporting the appellant's position, 
specifying the monetary figure in dispute and the provisions in Federal 
law, regulation, or policy with which the appellant believes the 
initial action was inconsistent.
    (b) Levels of appeal. (1) The Regional Director will consider first 
appeals for fire management assistance grant-related decisions under 
subparts A through E of this part.
    (2) The Associate Director will consider appeals of the Regional 
Director's decision on any first appeal under paragraph (b)(1) of this 
section.
    (c) Time limits. (1) Appellants must file appeals within 60 days 
after receipt of a notice of the action that is being appealed.
    (2) The grantee will review and forward appeals from an applicant 
or subgrantee, with a written recommendation, to the Regional Director 
within 60 days of receipt.
    (3) Within 90 days following receipt of an appeal, the Regional 
Director (for first appeals) or Associate Director (for second appeals) 
will notify the grantee in writing of the disposition of the appeal or 
of the need for additional information. A request by the Regional 
Director or Associate Director for additional information will include 
a date by which the information must be provided. Within 90 days 
following the receipt of the requested additional information or 
following expiration of the period for providing the information, the 
Regional Director or Associate Director will notify the grantee in 
writing of the disposition of the appeal. If the decision is to grant 
the appeal, the Regional Director will take appropriate implementing 
action.
    (d) Technical advice. In appeals involving highly technical issues, 
the Regional Director or Associate Director may, at his or her 
discretion, submit the appeal to an independent scientific or technical 
person or group having expertise in the subject matter of the appeal 
for advice or recommendation. The period for this technical review may 
be in addition to other allotted time periods. Within 90 days of 
receipt of the report, the Regional Director or Associate Director will 
notify the grantee in writing of the disposition of the appeal.
    (e) The decision of the Associate Director at the second appeal 
level will be the final administrative decision of FEMA.


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%).
    (b) As stated in Sec. 204.25, the cost share provision will be 
outlined in the terms and conditions of the FEMA-State Agreement for 
the Fire Management Assistance Grant Program.


Sec. 204.62  Duplication and recovery of assistance.

    (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 (a) of this 
section.
    (d) Intentional acts. Any person who intentionally causes a 
condition for which assistance is provided under this part shall be 
liable to the United States to the extent that we incur costs 
attributable to the intentional act or omission that caused the 
condition. We may provide assistance under this part, but it will be 
conditioned on an agreement by the applicant to cooperate with us in 
efforts to recover the cost of the assistance from the liable party. A 
person shall not be liable under this section as a result of actions 
the person takes or omits in the course of rendering care or assistance 
in response to the fire.


Sec. 204.63  Allowable costs.

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


Sec. 204.64  Reporting and audit requirements

    (a) Reporting. Within 90-days of the Performance Period expiration 
date, the State will submit a final 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
    (b) Audit. (1) Audits will be performed, for both the Grantee and 
the subgrantees, under 44 CFR 13.26.
    (2) FEMA may elect to conduct a program-specific Federal audit on 
the Fire Management Assistance Grant or a subgrant.

PART 206--FEDERAL DISASTER ASSISTANCE FOR DISASTERS DECLARED ON OR 
AFTER NOVEMBER 23, 1988

    7. The authority citation for part 206 continues to read as 
follows:

    Authority: The Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121 et seq.; 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 12571, 3 CFR, 1989 Comp., p. 
214.


    8. Amend Sec. 206.2 as follows:
    a. Revise paragraph (a)(3)(i) to read ``Unless otherwise specified 
in subparts A through K of this part, the Associate Director or 
Assistant Director of the

[[Page 57353]]

Readiness, Response and Recovery Directorate, or his/her designated 
representative.''
    b. Revise paragraph (a)(20) to read as follows:


Sec. 206.2  Definitions.

    (a) * * *
    (20) 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 this part. Fire Management Assistance Grants under 
section 420 of the Stafford Act are also considered Public Assistance. 
See subpart K of this part and part 204 of this chapter.
* * * * *

    Dated: November 8, 2001.
Michael D. Brown,
Acting Deputy Director.
[FR Doc. 01-28577 Filed 11-13-01; 8:45 am]
BILLING CODE 6718-02-P