E8-10936. Assistance Program Under the 9/11 Heroes Stamp Act of 2001

AGENCY:

Federal Emergency Management Agency, DHS.

ACTION:

Final rule.

SUMMARY:

The 9/11 Heroes Stamp Act of 2001 directed the United States Postal Service to issue a semipostal stamp and distribute the proceeds through the Federal Emergency Management Agency (FEMA) to the families of emergency relief personnel killed or permanently disabled while serving in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001. In response, FEMA issued interim regulations that governed the distribution of those funds. Now that all funds have been distributed and all appeals resolved, FEMA is issuing this Final rule to remove the interim regulations from the Code of Federal Regulations.

DATES:

This final rule is effective May 16, 2008.

FOR FURTHER INFORMATION CONTACT:

Jotham Allen, Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland Security, 500 C Street, SW., Room 840, Washington, DC 20472, (phone) 202-646-1957, (facsimile) 202-646-4536, or (e-mail) [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

The 9/11 Heroes Stamp Act of 2001, Public Law 107-67, sec. 652, 115 Stat. 557 (Nov. 12, 2001) (Heroes Stamp Act), directed the United States Postal Service (USPS) to issue a semipostal stamp and distribute the proceeds through the Federal Emergency Management Agency (FEMA) to the families of emergency relief personnel killed or permanently disabled while serving in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001.

A semipostal stamp is a type of postage that is sold for a value greater than that of a regular first class stamp. The proceeds from the price differential between the sale price of the stamp and the cost of the postage fund the distribution, minus the USPS' cost to produce and distribute the stamps. No administrative costs were deducted by FEMA. The USPS issued the Heroes semipostal stamp in June 2002, and stopped selling it on December 31, 2004. The sum of $10,565,073.61 was provided to FEMA by USPS from stamp sales during that time period.

On July 26, 2005, FEMA published an interim rule at 70 FR 43214 establishing a program to distribute the funds raised from the sale of the Heroes semipostal stamp. Under the program, eligible claimants were those emergency relief personnel acting in their official capacity who were permanently physically disabled, or the families of such personnel who were killed in the line of duty while serving at the World Trade Center, Pentagon, or Shanksville, PA site in connection with the terrorist attacks against the United States on September 11, 2001. In determining whether a claimant had a permanent physical disability, FEMA relied on determinations made by appropriate Federal, State, and local agencies, as well as appropriate private entities.

The interim rule also created an appeals process. This process allowed an applicant to appeal a determination made by FEMA that the applicant was not eligible. The applicant was required to submit a notice of intent to appeal within 15 calendar days of the issuance of FEMA's determination of eligibility. The written appeal could not exceed 15 pages, exclusive of supporting documentation, and had to be submitted within 60 calendar days of the issuance of FEMA's determination of eligibility. New documentation was accepted on appeal. Appeals determinations were made by the Appeals Specialist in FEMA's Office of Dispute Resolution.

The amount of assistance granted under the Heroes Stamp Act was within FEMA's discretion. The interim final rule established that FEMA would, to the extent possible, distribute the funds equally among all eligible claimants until the fund was liquidated. Multiple distributions were allowed with monies set aside for applicants who appealed their initial determination of ineligibility. On December 7, 2005, FEMA published a notice (70 FR 72845) that announced that the application period for the Assistance Program Under the 9/11 Heroes Stamp Act of 2001 would run from December 2, 2005 to April 3, 2006.

Eligibility determinations were made by the Heroes Stamp Panel who conducted nine meetings between February and November 2006 to make the determinations. Applicants were considered on a rolling basis and were informed of their eligibility decisions by United States mail. Of the 1,945 total applications received during the application period, the Panel deemed 1,356 eligible. Each applicant received a letter notifying them of their eligibility determination, and for those deemed eligible, FEMA provided an Electronic Funds Transfer form to be completed and returned to FEMA. Between November 2006 and April 2007, FEMA distributed $7,400 to each eligible applicant, who supplied the necessary banking information for the Electronic Funds Transfer.

Of the 589 applicants found ineligible, 64 submitted appeals. During the appeals process, 21 of these applicants submitted additional information and were found eligible. This brought the total number of eligible applicants to 1,377. In July 2007, the remaining amount of the fund was distributed. In total, 1,357 of the eligible applicants received $7,672.53; the final 20 applicants received $7,672.52. This difference was required in order to liquidate the entire amount of the funds raised.

II. Discussion of Public Comments

FEMA received 36 comments from the public regarding the interim rule. The comments received, together with FEMA's responses, are set forth below. All previously published rulemaking documents, as well as all comments received are available in the public docket for this rulemaking. The public docket for this rulemaking is available online by conducting a search for Docket ID FEMA-2005-0001 or Legacy ID DHS-2005-0006, at the Federal e-Rulemaking Portal at www.regulations.gov.

Continuation of semipostal stamp: Two comments suggested that the Heroes semipostal stamp should be continued. FEMA could not implement this suggestion. The Heroes Stamp Act specified that the stamp be issued for such period of time that USPS considered necessary and appropriate, but in no event could it continue issuing the stamp after December 31, 2004. USPS discontinued selling the Heroes semipostal stamp on December 31, 2004.

Eligibility: Seven comments suggested that iron, steel, and construction workers should be included in the definition of emergency relief personnel; one comment expressed concern that HAZMAT response teams might not be eligible under the program; seven comments suggested that the funds should be available to all victims of September 11, 2001, not just emergency relief personnel; three comments suggested that non-uniformed volunteers should be eligible to receive funds; and another commenter suggested that the funds should only be distributed to rescue workers and emergency volunteers who have been disabled and that the funds should not be distributed to the police and firefighter families unless there are extenuating circumstances.

While FEMA recognizes that iron, steel, and construction workers performed an invaluable service in response to the terrorist attacks of September 11, 2001, FEMA determined that these workers did not fall within the statutory definition of emergency relief personnel set out in the Heroes Stamp Act. The statutory definition of emergency relief personnel included a specific list of occupations, which did not include iron, steel, or construction workers. It included firefighters, law enforcement officers, paramedics, emergency medial technicians, and members of the clergy. The Heroes Stamp Act did provide for inclusion in that definition “other individuals (including employees of legally organized and recognized volunteer organizations, whether compensated or not) who, in the course of professional duties, respond to fire, medical, hazardous material, or other similar emergencies.” FEMA determined that iron, steel, and construction workers do not fall under the statutory definition because they do not typically respond, in the course of their professional duties, to fire, medical, hazardous material, or other similar emergencies.

The language of the statute also limited FEMA from distributing the funds to all victims of the September 11, 2001 attacks, or to all individuals who provided assistance. The Heroes Stamp Act directed that the funds were for emergency workers who had been permanently disabled and the families of emergency workers killed. The Heroes Stamp Act contained no provisions regarding other civilian victims. Furthermore, the Act did not give FEMA discretion relating to need or extenuating circumstances. It was left to FEMA's discretion to determine the distribution of the funds, and it decided to distribute funds equally among all eligible applicants, including the families of police and firefighters.

With respect to HAZMAT responders, FEMA did consider them to be in an eligible class of responders. The interim rule used the same definition for emergency relief personnel as the Heroes Stamp Act, which includes response to hazardous material: “firefighters, law enforcement officers, paramedics, emergency medical technicians, members of the clergy, or other individuals * * * who, in the course of professional duties, respond to fire, medical, hazardous material, or other similar emergencies” (emphasis added). Although FEMA did not keep a tally sheet of each class of worker who received funds from sale of the stamp, FEMA would have considered a HAZMAT worker to be well within the statutory definition of emergency relief personnel set out in the Heroes Stamp Act.

Amount of funds distributed to each applicant: Three comments suggested that the funds raised through the sale of the Heroes semipostal stamp should be divided equally among all eligible applicants, while one comment suggested that those applying on behalf of deceased individuals should receive larger distribution than permanently disabled applicants. It was also suggested that geographic cost of living differences should be taken into account.

The Heroes Stamp Act left the manner of distribution within FEMA's discretion. The funds were, to the extent possible, distributed equally among the eligible applicants. Factors considered by FEMA in its decision included the limited funds available to distribute, FEMA's limited ability to assess degrees of disability, and an inherent sense of fairness in providing everyone the same amount.

Interest: One comment questioned whether interest was earned on the funds, and suggested that any earned interest should be distributed to the applicants. Interest was not earned on the funds. Funds generated as the result of a statute, such as the Heroes Stamp Act, that authorizes the imposition and collection of specific charges and the use of the funds generated, are appropriated funds. In the absence of an express provision in the statute to the contrary, the funds are subject to the various restrictions and limitations on the uses of appropriated moneys (35 Comp. Gen. 615 (1956), 57 Comp. Gen. 311 (1978)). Given that these funds are appropriations, and lacking any specific statutory authority to invest and retain interest in the established fund or account, the accretions would have been required to be deposited to the Miscellaneous Receipts of the Treasury. (31 U.S.C. 3302) FEMA was prohibited from distributing any earned interest to the applicants, and therefore opted not to deposit the funds in an interest bearing account.

Distribution by FEMA: One comment asked why FEMA was distributing the funds. In the Heroes Stamp Act, Congress directed USPS to transfer the funds to FEMA to carry out distribution.

Date of distribution unclear: Three comments noted that the interim final rule did not include a date of distribution. A number of factors precluded FEMA from providing a date of distribution in the interim rule. First, the interim final rule did not include an application period. At that point, before the application period had been determined, it would not have been feasible to set a date of distribution. Additionally, when the interim rule was published FEMA had no way to determine the number of applications it would receive. Finally, because funds were distributed through Electronic Funds Transfer, the timing of distribution to each applicant depended on how quickly the applicant provided banking information.

Complicated application process: One comment stated that the application process was too complicated. FEMA made every effort to make the application process as simple as possible. The application contained detailed instructions, FEMA set up a dedicated phone number and e-mail address for questions or concerns, and questions were answered clearly and promptly. Additional information, including a copy of the interim rule was made available on the United States Fire Administration's Web site.

Unclear appeal process: Two commenters stated that the interim final rule was unclear regarding timelines and deadlines for the appeals process. FEMA disagrees. To appeal an ineligibility determination, applicants were required to submit to FEMA's Appeals Specialist a notice of intent to appeal within 15 calendar days of the issuance of FEMA's determination of eligibility. The notice was required to contain a brief statement explaining why the applicant believed the determination was incorrect. Within 60 calendar days after the issuance of FEMA's determination, the applicant was required to submit their full written appeal, not to exceed 15 pages exclusive of supporting documentation. The address to submit the notice of intent to appeal and the appeal were also provided. This information was detailed in § 153.8 of the rule. It was also restated, along with the reason for their denial, in the letters that were sent to applicants who were denied.

Contact family of victims: One comment suggested that applications from affected personnel or their survivors should be compared to known names of victims to make sure no families are missed. FEMA made every effort to publicize the Heroes Stamp Program to ensure that all potentially eligible people would be aware of the program and its requirements. In addition to the interim rule and postings on the United States Fire Administration Web page, several outreach efforts were conducted prior to and early in the application process. These included face to face briefings with impacted New York City agencies and their labor unions, and discussions with agencies in Shanksville, PA, and emergency relief agencies in areas surrounding the Pentagon. Broadcast e-mails also were forwarded to all of the urban search and rescue (USAR) teams that assisted at the three locations. The media also carried stories regarding the availability of the program and how to apply. Finally, the New York City Police Department, Fire Department, and Port Authority all cooperated and coordinated with the Heroes Stamp Project office by providing special assistance and individual notification directly to survivors of the deceased about how to avail themselves of the program.

Permanent disability should not be required: One comment suggested that eligible injuries should not be required to be permanent disabilities, and two comments suggested that those with permanent mental disabilities should be eligible as well as those with permanent physical disabilities. The Heroes Stamp Act specifically limited the assistance to emergency relief personnel killed or permanently disabled. Congress left FEMA no discretion in this area. The Heroes Stamp Act did not, however, define the term “permanently disabled”. Within its discretion, FEMA decided that the intent of the Heroes Stamp Act was best met by interpreting that term to mean physically disabled. Validating “permanent mental disabilities” was found to be too difficult. Further, considering the relatively small amount of funds FEMA had to distribute, it was determined that further widening eligibility would further reduce the amount of funds available for distribution to those with clear cut permanent physical disabilities.

Focus on Pentagon and Shanksville, PA: One comment suggested that the program should focus on those who responded to the events in Shanksville, PA and at the Pentagon. The Heroes Stamp Act directed that the funds be made available to the families of emergency workers killed or permanently disabled while serving in the line of duty while responding to the terrorist attacks against the United States on September 11, 2001. FEMA believed that the Congressional intent was for the funds to be available to personnel injured or killed in response to all of the terrorist attacks against the United States on September 11, 2001. Since the terrorist attacks on September 11, 2001 took place at the World Trade Center, the Pentagon, and Shanksville, Pennsylvania, the interim rule made clear that all three locations were included in the program.

Portion for support agencies: One comment suggested that a portion of the funds should be directed to nonprofit World Trade Center agencies. The Heroes Stamp Act was clear that the funds were to be distributed to the emergency relief workers themselves or their families. The interim rule followed this statutory language. Congress left FEMA no discretion in this area.

Original intent of legislation: Two comments asked that FEMA follow the original intent of the Heroes Stamp Act. FEMA agreed. The Heroes Stamp Act states that the semipostal stamp was to be issued “in order to afford the public a direct and tangible way to provide assistance to the families of emergency relief personnel killed or permanently disabled in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001.” The Heroes Stamp Act directed FEMA to carry out this purpose. FEMA, within its discretion, promulgated the interim rule and distributed the funds in order to best carry out this intent.

Determinations: One comment suggested that the interim rule was unclear as to who would review applications and make final determinations on eligibility. The Heroes Stamp Act contained no provisions relating to the review process. Within its discretion, FEMA formed a Heroes Stamp Panel which conducted 9 meetings between February and November 2006 to make the final eligibility determinations on all 1,945 applications. The panel's five members represented FEMA's Office of Chief Counsel (formerly the Office of General Counsel), the Office of Legislative Affairs, and the United States Fire Administration. In making their final eligibility determinations, these individuals largely relied upon determinations of permanent physical disability made by appropriate Federal, State, and local agencies, as well as appropriate private entities.

III. Regulatory Requirements

A. Administrative Procedure Act

As noted in the interim rule, FEMA found good cause under 5 U.S.C. 553(d)(3) to issue an interim rule which would take effect upon the closure of the comment period because delay would be impracticable in light of the eligible individuals' need for relief. FEMA also noted that prompt disbursement of the benefits from the Heroes Stamp sales proceeds was in the public interest. FEMA received no adverse comments as to the finding of good cause.

Now that all funds have been distributed and all appeals resolved, FEMA is removing the regulatory text from the Code of Federal Regulations. FEMA again finds good cause not to take public comment or wait 30 days before making this rule effective under 5 U.S.C. 553(b) and (d). Because all of the funds available from the sale of the Heroes Stamp have been distributed, and all appeals have been resolved, there is no longer any need for these regulations. Allowing public comment and/or delaying the effectiveness of this rule for 30 days is unnecessary.

B. Executive Order 12866, Regulatory Planning and Review

FEMA prepared and reviewed this rulemaking under the provisions of Executive Order 12866, Regulatory Planning and Review. Although the interim rule was determined to be a significant, but not economically significant regulatory action, now that all funds have been distributed and all appeals resolved these regulations no longer serve a purpose to FEMA or the public. OMB has determined that this rule is not a significant regulatory action. OMB has not reviewed this rule.

C. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FEMA is not required to prepare a final regulatory flexibility analysis for this final rule because the agency has not issued a notice of proposed rulemaking.

D. National Environmental Policy Act (NEPA)

In the interim rule, FEMA determined that this rule fell within the exclusion category of 44 CFR 10.8(d)(2)(ii), which excludes from NEPA requirements the preparation, revision, adoption of regulations, directives, manuals, and other guidance documents related to actions that qualify for categorical exclusions. No commenters disagreed with our determination. The rulemaking provided for disbursement of funds received from the sale of the Heroes Stamp to emergency relief personnel who were permanently disabled while serving in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001, or to the families of such personnel who were killed in such line of duty. The rule had no significant effect on the human environment. Because no other extraordinary circumstances have been identified, this rule does not require the preparation of either an environmental assessment or an environmental impact statement as defined by NEPA.

E. Executive Order 12898, Environmental Justice

Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” 59 FR 7629, February 16, 1994, each Federal agency is required to conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that those programs, policies, and activities do not have the effect of excluding persons from participation, denying persons benefits of our programs, or subjecting persons to discrimination because of their race, color, or national origin.

This final rule removes regulations that implemented the 9/11 Heroes Stamp Act of 2001. The Heroes Stamp Act provided for the sale of the Heroes Stamp and for disbursement of the proceeds to emergency relief personnel who were permanently disabled while serving in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001, or to the families of such personnel who were killed in such line of duty. There were no effects on human health or the environment as a result of this rulemaking, and the Heroes Stamp funds were distributed without regard to race, color, or national origin; thus the requirements of Executive Order 12898 do not apply to this rule.

F. Congressional Review of Agency Rulemaking

FEMA has sent this final rule to the Congress and to the Government Accountability Office under the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801-808. The rule is not a “major rule” within the meaning of that Act. This rule will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises.

G. Unfunded Mandates Reform Act

This rule is not an unfunded mandate within the meaning of the Unfunded Mandates Reform Act of 1995, 5 U.S.C. 1531-1538. This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, nor by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no action is required by the provisions of the Unfunded Mandates Reform Act of 1995.

H. Executive Order 13132, Federalism

Executive Order 13132, “Federalism,” (64 FR 43255, August 10, 1999), sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications. This rule provided for the distribution of funds collected from the sale of the semipostal Heroes Stamp. It had no substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. It did not preempt any State laws. As noted in the interim rule, FEMA determined that this rule did not have sufficient federalism implications sufficient to warrant the preparation of a federalism impact statement. This final action which removes the interim regulations likewise has no federalism implications.

I. Paperwork Reduction Act

The interim rule contained information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq. Under the PRA, a person may not be penalized for failing to comply with an information collection that does not display a currently valid OMB control number. The information collection, which includes FEMA Form 75-14, the 9/11 Heroes Stamp Act of 2001 Eligibility and Application for Benefits form, was approved under OMB number 1660-0091 with an expiration date of July 2008. The Paperwork Reduction Act Collection Discontinuation Form for 1660-0091 was filed on August 15, 2007.

J. Executive Order 13175, Consultation With and Coordination With Indian Tribal Governments

FEMA has reviewed this rule under Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

K. Executive Order 12988, Civil Justice Reform

FEMA has reviewed this rule under Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996). This rule meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden.

List of Subjects in 44 CFR Part 153

• Disaster assistance
• Emergency relief personnel
• Terrorism

Accordingly, for the reasons stated in the preamble, and under the authority of 5 U.S.C. 301 and 6 U.S.C. 101 et seq., FEMA amends 44 CFR chapter 1, by removing part 153.

PART 153—[REMOVED AND RESERVED]

R. David Paulison,

Administrator, Federal Emergency Management Agency.