[Federal Register Volume 70, Number 142 (Tuesday, July 26, 2005)]
[Rules and Regulations]
[Pages 43214-43217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14517]



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Part II





Department of Homeland Security





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Federal Emergency Management Agency



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44 CFR Part 153



Heroes Stamp Act of 2001--Regulations, Privacy Act System of Records 
and Privacy Impact Assessment, and Information Collections; Interim 
Rule and Notices

  Federal Register / Vol. 70, No. 142 / Tuesday, July 26, 2005 / Rules 
and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 153

[DHS-2005-0006]
RIN 1660-AA34


Assistance Program Under the 9/11 Heroes Stamp Act of 2001

AGENCY: United States Fire Administration, Federal Emergency Management 
Agency, Emergency Preparedness and Response Directorate, Department of 
Homeland Security.

ACTION: Interim rule with request for comments.

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SUMMARY: The 9/11 Heroes Stamp Act of 2001 directed the United States 
Postal Service to issue a semipostal stamp and distribute the proceeds 
through the Federal Emergency Management Agency to the families of 
emergency relief personnel killed or permanently disabled while serving 
in the line of duty in connection with the terrorist attacks against 
the United States on September 11, 2001. This interim rule establishes 
the mechanism by which FEMA will distribute these funds.

DATES: This rule is effective August 25, 2005. Submit comments on or 
before August 25, 2005.

ADDRESSES: You may submit comments, identified by EPA DOCKET NUMBER 
DHS-2005-0006 and/or Regulatory Information Number (RIN) 1600-AA34, by 
one of the following methods:
     EPA Federal Partner EDOCKET Web Site: http://www.epa.gov/feddocket. Follow the instructions for submitting comments on the Web 
site.
    DHS has joined the Environmental Protection Agency (EPA) online 
public docket and comment system on its Partner Electronic Docket 
System (Partner EDOCKET). DHS and its agencies (excluding the United 
States Coast Guard and Transportation Security Administration) will use 
the EPA Federal Partner EDOCKET system. The USCG and TSA [legacy 
Department of Transportation (DOT) agencies] will continue to use the 
DOT Docket Management System until full migration to the electronic 
rulemaking Federal docket management system in 2005.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include RIN 1600-AA34 in the 
subject line of the message.
     Fax: (202) 646-4536.
     Mail: Please send any comments to the Rules Docket Clerk, 
Office of the General Counsel, Federal Emergency Management Agency, 500 
C Street, SW., Room 840, Washington, DC 20472.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking. All comments received 
will be posted without change to http://www.epa.gov/feddocket, 
including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.epa.gov/feddocket. You may also 
access the Federal eRulemaking Portal at http://www.regulations.gov. 
Submitted comments may also be inspected at Rules Docket Clerk, Office 
of the General Counsel, Federal Emergency Management Agency, 500 C 
Street, SW., Room 840, Washington, DC 20472.

FOR FURTHER INFORMATION CONTACT: Michael Herman, Heroes Stamp, 500 C 
Street, SW., Room 840, Washington, DC 20472, or call 1-866-887-9107, or 
send e-mail to [email protected].

SUPPLEMENTARY INFORMATION: The 9/11 Heroes Stamp Act of 2001, Public 
Law 107-67, sec. 652, 115 Stat. 514 (Nov. 12, 2001) (Heroes Stamp Act), 
directed the United States Postal Service (USPS) to issue a semipostal 
stamp and distribute the proceeds through the Federal Emergency 
Management Agency (FEMA) to the families of emergency relief personnel 
killed or permanently disabled while serving in the line of duty in 
connection with the terrorist attacks against the United States on 
September 11, 2001.
    A semipostal stamp is a type of postage that is sold for a value 
greater than that of a regular first class stamp. The proceeds from the 
price differential between the sale price of the stamp and the cost of 
the postage fund the distribution provided for in the Heroes Stamp Act, 
after appropriate deduction for reasonable costs of producing and 
distributing the Heroes semipostal stamps by the USPS. The Heroes Stamp 
Act does not grant any administrative costs to FEMA. The USPS issued 
the Heroes semipostal stamp in June 2002, and discontinued selling the 
Heroes semipostal stamp on December 31, 2004.
    FEMA has established a program to distribute the funds raised from 
the sale of the Heroes semipostal stamp. Eligible claimants are those 
emergency relief personnel who have been permanently physically 
disabled in the line of duty and, in the case of emergency relief 
personnel killed in the line of duty, their personal representatives.
    The September 11th Victim Compensation Fund of 2001 compensated any 
individual (or the personal representative of a deceased individual) 
who was physically injured or killed as a result of the terrorist-
related aircraft crashes on September 11, 2001. Public Law 107-42, 
secs. 401 et seq., 115 Stat. 237 (Sept. 22, 2001) (49 U.S.C. 40101 
note). The Attorney General adopted regulations for the management of 
this victim compensation fund. 66 FR 66282 (Dec. 21, 2001). The Heroes 
Stamp Act is narrower in scope and authorizes assistance only to the 
emergency relief personnel killed or permanently disabled in the line 
of duty in connection with the terrorist attacks against the United 
States on September 11, 2001, and their families. Although the Heroes 
Stamp Act fund is a separate fund from the September 11th Victim 
Compensation Fund of 2001, this interim rule incorporates some language 
from the rules for the September 11th Victim Compensation Fund of 2001 
to provide consistency. For example, FEMA used language from the 
definition of ``immediate aftermath'' from the September 11th Victim 
Compensation Fund of 2001 rule when crafting the definition of ``in the 
line of duty.''
    This interim rule excludes emotional injuries in the definition of 
``eligible claimants'' because of the manner in which the legislation 
established the program and the limited amount of money that is 
available for eligible claimants. Unlike the September 11th Victim 
Compensation Fund of 2001, funds were donations by each purchaser of 
the Heroes semipostal stamps and unlike the September 11th Victim 
Compensation Fund of 2001, this fund does not depend on evaluation of a 
degree of loss.
    To make the permanent disability determination, FEMA will rely on 
the expertise of and the determinations made by an appropriate private 
entity (e.g. private insurance company), Federal, State, or local 
agency such as: the Social Security Administration, New York Workers' 
Compensation Board, New York State Retirement System, New Jersey 
Division of Workers' Compensation, New York City Police Department and 
its pension system, or New York City Fire Department and its pension 
system.
    Similarly, FEMA will rely on previously established determinations 
of the representative of the claimant if at all possible. Accordingly, 
a personal representative will be selected in the

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following order: (1) An individual appointed by a court of competent 
jurisdiction, or the executor or administrator of the decedent's will 
or estate; (2) the personal representative recognized by the Special 
Master of the September 11th Victim Compensation Fund of 2001; or (3) a 
personal representative selected by FEMA. See, K. Feinberg, I Final 
Report of the Special Master for the September 11th Victim Compensation 
Fund, 24-29 (2004).
    Only one application for assistance may be submitted for each 
emergency relief personnel killed or permanently physically disabled in 
the line of duty. To be eligible for assistance under the Heroes Stamp 
Act, each applicant is required to file an application which will be 
provided by FEMA upon request and consistent with the regulations. The 
deadline for filing an application will be announced in a separate 
notice in the Federal Register. Applications may not be submitted after 
the application deadline. In the unusual event that the applicant's 
documentation is not available, the applicant nonetheless must apply 
within the application period and must explain why he/she cannot obtain 
the necessary documentation. The history of claims applications to the 
September 11th Victim Compensation Fund of 2001 and State and local 
pension and Workers' Compensation agencies strongly suggests that 
applicants generally possess this information and that it is readily 
available.
    The Heroes Stamp Act granted FEMA the discretion to determine 
eligibility criteria and the amount of any grant. FEMA will notify 
applicants of its determination. FEMA will attempt to distribute funds 
equally among all eligible claimants until the fund has been 
liquidated. FEMA will make an initial disbursement to all eligible 
claimants, after which FEMA will address and resolve any appeals. After 
any appeals have been administratively resolved, FEMA will make a final 
distribution of the funds.
    After the fund has been liquidated, FEMA has no authority or funds 
with which to make an additional award to an otherwise eligible 
claimant. There are no funds available for the program other than the 
proceeds that were distributed to FEMA by the USPS, nor are there any 
other Federal funds authorized for use in making such payments. 
Payments can be made only from the Heroes Stamp Act fund.
    $10,565,073.61 has been collected from the sales of the Heroes 
semipostal stamp, plus the administrative costs of the USPS. Based on 
FEMA's estimate of approximately 1000 eligible claimants, FEMA 
anticipates grants in the amount of approximately $10,000 for each 
eligible claimant. These are only estimates and can not be relied upon 
for any purpose--final amounts to be paid out to claimants will only be 
determined after the total number of eligible claims filed have been 
determined.
    FEMA will distribute funds to eligible claimants via Electronic 
Funds Transfer (EFT). FEMA will be using the DIRECT DEPOSIT SIGN-UP 
FORM, Standard Form 1199A (Rev. June 1987), prescribed by the 
Department of the Treasury, to obtain the necessary information to 
perform the EFT. Eligible claimants must provide the name and address 
of their financial institution, the routing number, the type of 
depositor account, the depositor account number, and the depositor 
account title. Finally, the financial institution must complete a 
certification as to the identity of the payee and the account number 
and title.
    Because the Heroes Stamp Act does not provide for payment of legal 
or other fees by the Heroes Stamp Act fund, these regulations do not 
impose any limits on the types or amount of fees that eligible 
claimants may use to pay their attorneys or other costs incurred in 
applying for this award. Although these regulations do not set specific 
limits on attorneys fees separate from those existing in State law or 
attorney ethical standards, FEMA believes that any fee arrangement 
(including contingency, hourly, etc.) exceeding 5% of an eligible 
claimant's payment from the Heroes Stamp Act fund would not be in the 
best interest of the eligible claimant. However, all expenses incurred 
by the applicant are the sole responsibility of the applicant.
    FEMA requested guidance from the Internal Revenue Service, 
Department of the Treasury (IRS), regarding whether certain payments 
made pursuant to the Heroes Stamp Act are reportable as income. On 
December 22, 2004, the IRS informed FEMA that FEMA is not required to 
issue Forms 1099 and W-2 for payments it makes to eligible claimants 
(or their survivors, in the case of certain death benefits) pursuant to 
the Heroes Stamp Act. The IRS noted, for example, that section 
104(a)(5) of the Internal Revenue Code of 1986 (``the Code'') (26 
U.S.C. 104(a)(5)) excludes from the gross income of an individual 
amounts received as disability income attributable to injuries incurred 
as a direct result of a terrorist attack or military action and section 
102(a) of the Code (26 U.S.C. 102(a)) excludes from gross income 
amounts received by an individual as gifts. As a result, the IRS 
advised that payments made under this section are not reportable to the 
IRS as income. This letter is not binding on the Internal Revenue 
Service in determining individual tax liabilities, but only relieves 
FEMA of the obligation to report the distributions as taxable income to 
the IRS and the individual claimant.

Administrative Procedure Act

    In general, FEMA publishes a rule for public comment before issuing 
a final rule under the Administrative Procedure Act, 5 U.S.C. 533 and 
44 CFR 1.12. The Administrative Procedure Act, however, provides an 
exception from that procedure where the agency, for good cause, finds 
the procedures for comment and response contrary to the public 
interest. In accordance with 5 U.S.C. 553(d)(3), FEMA finds that there 
is good cause for the interim rule to take effect upon the closure of 
the comment period because delay would be impracticable in light of the 
presumed need of eligible individuals for relief. Additionally, prompt 
disbursement of the benefits from the Heroes semipostal stamp sales 
proceeds is in the public interest.
    Normally, FEMA affords the public 60 days to comment upon FEMA's 
rules. FEMA is required in its notices of proposed rulemakings, by 44 
CFR 1.4(e), to allow 60 days for submission of comments. However, as 
FEMA is publishing an interim rule and not a notice of proposed 
rulemaking, FEMA is not bound by the 60 day requirement. Additionally, 
FEMA believes that it is in the public's interest to allow a shorter 
comment period in order to allow comments prior to the effective date 
of the rule.

National Environmental Policy Act

    This interim rule falls within the exclusion category of 44 CFR 
10.8(d)(2)(ii), which addresses the preparation, revision, adoption of 
regulations, directives, manuals, and other guidance documents related 
to actions that qualify for categorical exclusions. Because no other 
extraordinary circumstances have been identified, this interim rule 
will not require the preparation of either an environmental assessment 
or an environmental impact statement as defined by the National 
Environmental Policy Act.

Paperwork Reduction Act of 1995

    This interim rule contains information collection requirements 
subject to the Paperwork Reduction Act of 1995. Under the Paperwork 
Reduction Act, a person may not be

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penalized for failing to comply with an information collection that 
does not display a currently valid OMB control number. This information 
collection request has been submitted to OMB for review and will be 
available for public comment and use in a notice published in the 
Federal Register.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, nor by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Executive Order 12866--Regulatory Planning and Review

    Under Executive Order 12866, 58 FR 51735, October 4, 1993, a 
``significant regulatory action'' is subject to OMB review and the 
requirements of Executive Order 12866. Section 3(f) of the Executive 
Order defines ``significant regulatory action'' as one that is likely 
to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or may adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    In determining whether to proceed with the formulation and 
publication of this rule, FEMA considered three alternatives: manage 
the program through administrative directives; manage the program 
through a Notice of Funds Availability (NOFA); and manage the program 
through an interim rule. FEMA rejected both the management directive 
and NOFA approaches because neither provides an opportunity for public 
comment, which we believe is important for the assurance of public 
confidence in the integrity of the fund distribution. Moreover, 
management directives pose substantial problems in communicating the 
requirements of the program to the general public. NOFAs may not reach 
the individuals who may be eligible under this program because NOFAs 
are generally designed to address organizational applications for 
grants and cooperative agreements. On the other hand, FEMA 
traditionally has used the rulemaking process when it has been directed 
by Congress to create new programs. FEMA has established rulemaking as 
the mechanism that it relies on when developing new programs so it was 
natural that FEMA would select rulemaking as the mechanism to establish 
this program.
    This rule is a significant regulatory action, but not an 
economically significant regulatory action within the definition of 
section 3(f) of Executive Order 12866, and it adheres to the principles 
of regulation of the Executive Order. OMB has reviewed this rule under 
the provisions of the Executive Order.

Executive Order 13132--Federalism

    This rulemaking will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, we have determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

List of Subjects in 44 CFR Part 153

    Disaster assistance, Emergency relief personnel, Terrorism.

0
Accordingly, for the reasons set forth in the preamble, part 153 of 
chapter I of title 44 of the Code of Federal Regulations is added to 
read as follows:

PART 153--ASSISTANCE PROGRAM UNDER THE 9/11 HEROES STAMP ACT OF 
2001

Sec.
153.1 Purpose.
153.2 Eligibility definitions and requirements.
153.3 Other definitions.
153.4 Personal representative.
153.5 Application process.
153.6 Deadline for filing an application.
153.7 Distribution of funds.
153.8 Appeal.
153.9 Subrogation.

    Authority: Section 652 of Pub. L. 107-67, 115 Stat. 514; 42 
U.S.C. 2218(b)(5), 5 U.S.C. 301, 6 U.S.C. 112(a)(3) &(b)(1).


Sec.  153.1  Purpose.

    This part implements the 9/11 Heroes Stamp Act of 2001 (``Heroes 
Stamp Act''), Public Law 107-67, 115 Stat. 514 (2001), which authorizes 
the Federal Emergency Management Agency (FEMA) to establish a program 
to provide assistance to emergency relief personnel killed or 
permanently disabled while serving in the line of duty in connection 
with the terrorist attacks against the United States on September 11, 
2001, and their families.


Sec.  153.2  Eligibility definitions and requirements.

    (a) Eligible claimants. The term eligible claimants shall mean 
emergency relief personnel acting in their official capacity who were 
killed or permanently physically disabled in the line of duty while 
serving at the World Trade Center, Pentagon, or Shanksville, 
Pennsylvania site in connection with the terrorist attacks against the 
United States on September 11, 2001.
    (b) Emergency relief personnel. The term emergency relief personnel 
shall mean those individuals serving at the World Trade Center, 
Pentagon, or Shanksville, Pennsylvania site in connection with the 
terrorist attacks against the United States on September 11, 2001, who 
were firefighters, law enforcement officers, paramedics, emergency 
medical technicians, members of the clergy, or other individuals 
(including employees of legally organized and recognized volunteer 
organizations, whether compensated or not) who, in the course of 
professional duties, respond to fire, medical, hazardous material, or 
other similar emergencies.
    (c) In the line of duty. The term in the line of duty shall mean 
emergency relief personnel were serving in their official capacity at 
the World Trade Center, Pentagon, or Shanksville, Pennsylvania site in 
connection with the terrorist attacks against the United States on 
September 11, 2001, during the period of time of and extending for 96 
hours after the crashes resulting from the terrorist attacks.
    (d) Permanently physically disabled. The term permanently 
physically disabled shall mean an individual with a significant and 
nontemporary physical impairment. In order to make these 
determinations, FEMA will rely on a determination by an appropriate 
private entity, Federal, State, or local agency.


Sec.  153.3  Other definitions.

    Appeal means a written explanation of the applicant's basis to 
contest FEMA's eligibility determination. The appeal shall not exceed 
15 pages, exclusive of supporting documentation.
    Heroes Stamp Act or the Act means the 9/11 Heroes Stamp Act of 
2001, section 652 of Public Law 107-67, 115 Stat. 514 (2001).

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    Personal representative means the individual determined to be the 
personal representative under Sec.  153.4.
    Special Master means the individual appointed on November 26, 2001, 
by the Attorney General of the United States to administer The 
September 11th Victim Compensation Fund of 2001. See 28 CFR part 101.


Sec.  153.4  Personal representative.

    (a) In general. A personal representative will be recognized by 
FEMA as follows:
    (1) An individual appointed by a court of competent jurisdiction as 
the personal representative of the decedent or as the executor or 
administrator of the decedent's will or estate.
    (2) In the event that no personal representative or executor or 
administrator has been appointed by any court of competent 
jurisdiction, and such issue is not the subject of pending litigation 
or other dispute, then the personal representative selected by the 
Special Master will be recognized as the personal representative for 
the purposes of compensation under the Heroes Stamp Act.
    (3) In the event that no personal representative or executor or 
administrator has been appointed by any court of competent 
jurisdiction, such issues are not the subject of pending litigation or 
other dispute and the Special Master did not select a personal 
representative, FEMA, may, in its discretion, determine whether to 
recognize any individual or entity as a personal representative and the 
identity of the personal representative.
    (b) Disputes regarding personal representative. FEMA shall not be 
required to arbitrate, litigate, or otherwise resolve any dispute as to 
the identity of the personal representative. In the event of a dispute 
over the appropriate personal representative, FEMA may suspend 
adjudication of the claim or if sufficient information is provided, 
authorize payment, but place any payment in escrow until the dispute is 
resolved either by agreement of the disputing parties or by a court of 
competent jurisdiction.


Sec.  153.5  Application process.

    (a) Only an eligible claimant may file an application for 
assistance under this part. An application must be submitted on the 9/
11 Heroes Stamp Act of 2001 Eligibility and Application for Benefits 
form (FEMA Form 75-14, OMB No. 1660-0091). Only one application may be 
submitted for each eligible claimant. FEMA will review the applications 
to determine whether applicants are eligible claimants. After FEMA has 
evaluated the application and supporting materials, FEMA will issue and 
provide each applicant with a copy of FEMA's eligibility determination 
of that applicant.
    (b) Application forms are available from FEMA upon request. They 
may be obtained through the mail, or by telephone request. The 
application form may also be downloaded from the Internet at http://www.usfa.fema.gov.
    (c) Applications must be sent to Heroes Stamp, USFA, NETC, 16825 
South Seton Avenue, Emmitsburg, MD 21727. Applications submitted by 
facsimile or e-mail will not be accepted.
    (d) An application is deemed filed on the date it is received by 
FEMA.


Sec.  153.6  Deadline for filing an application.

    The deadline for filing an application will be announced through 
publication of a notice in the Federal Register.


Sec.  153.7  Distribution of funds.

    (a) FEMA will not distribute funds until FEMA has made eligibility 
determinations on all applications under Sec.  153.5.
    (b) The amount of assistance granted under the Act is within FEMA's 
discretion. FEMA will distribute funds equally, to the extent feasible, 
among eligible claimants until the fund has been liquidated. FEMA will 
not differentiate in making the amount of the award, between those 
eligible claimants who were killed or those eligible claimants who were 
permanently physically disabled while serving in the line of duty in 
connection with the terrorist attacks against the United States on 
September 11, 2001.
    (c) FEMA will notify each individual it determines to be eligible 
for assistance under the Heroes Stamp Act of its intent to make a 
distribution, and of an estimated amount of the initial distribution. 
This notification will be made through the United States mail.
    (d) FEMA may make multiple distributions. Once all appeals have 
been settled, FEMA will further distribute to eligible claimants any 
monies that were set-aside for applicants who are determined not to be 
eligible claimants.


Sec.  153.8  Appeal.

    (a) An applicant may appeal a determination made by FEMA that the 
applicant is not eligible to participate in the distribution of funds. 
An applicant may not appeal the amount of the award.
    (b) The applicant must submit a notice of his/her intent to appeal 
to FEMA's Appeals Specialist within 15 calendar days of the date of the 
issuance of FEMA's determination of eligibility. The notice of 
intention to appeal must be sent to: Appeals Specialist, Office of 
Dispute Resolution, Heroes Stamp, USFA, NETC, 16825 South Seton Avenue, 
Emmitsburg, MD 21727. A notice of intention to appeal submitted by 
facsimile or e-mail will not be accepted. The applicant must submit, 
along with the notice of appeal, a brief statement explaining why the 
applicant believes the determination regarding the application was 
incorrect. The notice of intention to appeal is deemed filed on the 
date it is received by FEMA.
    (c) The applicant must file an appeal within 60 calendar days of 
the date of the issuance of FEMA's determination. An appeal shall mean 
a written explanation of the applicant's basis to contest FEMA's 
eligibility determination. The appeal shall not exceed 15 pages, 
exclusive of supporting documentation. The appeal must be sent to: 
Appeals Specialist, Office of Dispute Resolution, Heroes Stamp, USFA, 
NETC, 16825 South Seton Avenue, Emmitsburg, MD 21727. Appeals submitted 
by facsimile or e-mail will not be accepted. All supporting 
documentation must be submitted with the appeal. The appeal is deemed 
filed on the date it is received by FEMA.
    (d) FEMA's decision on the appeal will constitute the final agency 
decision on the matter.


Sec.  153.9  Subrogation.

    No person or entity having paid other benefits or compensation to 
or on behalf of an eligible claimant shall have any right of recovery, 
whether through subrogation or otherwise, against the compensation paid 
by the Fund.

    Dated: July 15, 2005.
Michael D. Brown,
Under Secretary, Emergency Preparedness and Response, Department of 
Homeland Security.
[FR Doc. 05-14517 Filed 7-25-05; 8:45 am]
BILLING CODE 9110-17-P