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VII. References
American Association for the Advancement
of Science (AAAS). 2020. Per- and
Polyfluoroalkyl Substances (PFAS) in
Drinking Water. Available on the
internet at: https://www.aaas.org/
programs/epi-center/pfas.
CDC, 2020b. Legionella (Legionnaires’
Disease and Pontiac Fever). https://
cdc.gov/legionella/about/history.html.
Executive Office of the President. 2021.
Protecting Public Health and the
Environment and Restoring Science to
Tackle the Climate Crisis; Federal
Register. Vol. 86, E.O. 13990. p. 7037,
January 20, 2021.
National Drinking Water Advisory Council
(NDWAC). 2004. National Drinking
Water Advisory Council Report on the
CCL Classification Process to the U.S.
Environmental Protection Agency.
Available on the internet at: https://
www.epa.gov/sites/production/files/
2015-11/documents/report_ccl_ndwac_
07-06-04.pdf.
National Research Council (NRC). 2001.
Classifying Drinking Water
Contaminants for Regulatory
Consideration. National Academy Press,
Washington, DC.
USEPA. 1998. Announcement of the
Drinking Water Contaminant Candidate
List; Notice. Federal Register. Vol. 63,
No. 40. p. 10274, March 2, 1998. Docket
ID No. W–97–11
USEPA. 1999. Revisions to the Unregulated
Contaminant Monitoring Regulation for
Public Water Systems. Federal Register.
Vol. 64, No. 180, p. 50556, September 17,
1999. Docket No. FRL–6433–1
USEPA. 2003. Announcement of Regulatory
Determinations for Priority
Contaminants on the Drinking Water
Contaminant Candidate List. Federal
Register. Vol. 68, No. 138. p. 42898, July
18, 2003. Docket ID No. OW–2002–0021
USEPA. 2005. Drinking Water Contaminant
Candidate List 2; Final Notice. Federal
Register. Vol. 70, No. 36. p. 9071,
February 24, 2005. Docket ID No. OW–
2003–0028
USEPA. 2007. Unregulated Contaminant
Monitoring Regulation (UCMR) for
Public Water Systems Revisions;
Correction. Federal Register. Vol. 72, No.
19, p. 4328, January 30, 2007. Docket ID
No. OW–2004–0001
USEPA. 2008. Drinking Water: Regulatory
Determinations Regarding Contaminants
on the Second Drinking Water
Contaminant Candidate List. Federal
Register. Vol. 73, No. 174. p. 44251, July
30, 2008. Docket ID No. EPA–HQ–OW–
2007–0068
USEPA. 2009. Drinking Water Contaminant
Candidate List 3—Final. Federal
Register. Vol. 74, No. 194. p. 51850,
October 8, 2009. Docket ID No. EPA–
HQ–OW–2007–1189
USEPA. 2011. Drinking Water: Regulatory
Determination on Perchlorate. Federal
Register. Vol. 76, No. 29. p. 7762,
February 11, 2011. EPA Docket ID No.
EPA–HQ–OW–2009–0297
USEPA. 2012. Revisions to the Unregulated
Contaminant Monitoring Regulation
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(UCMR 3) for Public Water Systems.
Federal Register. Vol. 77, No. 85. p.
26071, May 2, 2012. Docket ID No. EPA–
HQ–OW–2009–0090
USEPA. 2015. Algal Toxin Risk Assessment
and Management Strategic Plan for
Drinking Water, Strategy Submitted to
Congress to Meet the Requirements of
Public Law 114–45. EPA 810–R–04–003
USEPA. 2016a. Revisions to the Unregulated
Contaminant Monitoring Regulation
(UCMR 4) for Public Water Systems.
Federal Register. Vol. 81, No. 244. p.
92666, December 20, 2016. Docket ID No.
EPA–HQ–OW–2015–0218
USEPA. 2016b. Final Regulatory
Determinations on the Third Drinking
Water Contaminant Candidate List.
Federal Register. Vol. 81, No. 1. P. 13–
19, January 4, 2016. Docket ID No. EPA–
HQ–OW–2012–0155
USEPA. 2016c. Drinking Water Contaminant
Candidate List 4-Final. Federal Register.
Vol. 81, No. 222. P. 81099, November 17,
2016. Docket ID No. EPA–HQ–OW–
2012–0217
USEPA. 2018a. Request for Nominations of
Drinking Water Contaminants for the
Fifth Contaminant Candidate List.
Notice. Federal Register. Vol. 83, No.
194. p. 50364, October 5, 2018. Docket ID
No. EPA–HQ–OW–2018–0594
USEPA. 2018b. Basic Information on PFAS.
Available at: https://www.epa.gov/pfas/
basic-information-pfas.
USEPA. 2019a. Drinking Water: Perchlorate
Proposed Rule. Federal Register. Vol. 84,
No. 123, p. 30524, June 26, 2019. EPA
Docket No. EPA–HQ–OW–2018–0780
USEPA. 2019b. EPA’s Per- and
Polyfluoroalkyl Substances (PFAS)
Action Plan. EPA 823–R–18–004,
February 2019. Available at: https://
www.epa.gov/sites/production/files/
2019-02/documents/pfas_action_plan_
021319_508compliant_1.pdf.
USEPA. 2020. Drinking Water: Final Action
on Perchlorate. Federal Register. Vol. 85,
No. 140, p. 43990. July 21, 2020. EPA
Docket No. EPA–HQ–OW–2018–0780;
EPA–HQ–OW–2008–0692; EPA–HQ–
OW–2009–0297
USEPA. 2021a. Childhood Lifestages relating
to Children’s Environmental Health.
Available at https://www.epa.gov/
children/childhood-lifestages-relatingchildrens-environmental-health.
USEPA. 2021b. Revisions to the Unregulated
Contaminant Monitoring Rule (UCMR 5)
for Public Water Systems and
Announcement of Public Meetings.
Federal Register. Vol. 86, No. 245. p.
73131, December 27, 2021. Docket ID No.
EPA–HQ–OW–2020–0530
USEPA. 2021c. PFAS Strategic Roadmap:
EPA’s Commitments to Action, 2021–
2024. EPA 100–K–21–002. October 2021.
USEPA. 2021d. Announcement of Final
Regulatory Determinations for
Contaminants on the Fourth Drinking
Water Contaminant Candidate List.
Federal Register. Vol. 86, No. 40, p.
12272, March 3, 2021. Docket ID No.
EPA–HQ–OW–2019–0583.
USEPA. 2021e. Drinking Water Contaminant
Candidate List 5—Draft. Federal
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USEPA. 2022a. Technical Support Document
for the Final Fifth Contaminant
Candidate List (CCL 5)—Chemical
Contaminants. EPA 815–R–22–002,
September 2022.
USEPA. 2022b. Technical Support Document
for the Final Fifth Contaminant
Candidate List (CCL 5)—Microbial
Contaminants. EPA 815–R–22–004,
September 2022.
USEPA. 2022c. Technical Support Document
for the Final Fifth Contaminant
Candidate List (CCL 5)—Contaminant
Information Sheets. EPA 815–R–22–003,
September 2022.
USEPA. 2022d. Comment Response
Document for the Draft Fifth Drinking
Water Contaminant Candidate List (CCL
5)—Categorized Public Comment. EPA
815–R–22–001, September 2022.
USEPA. 2022e. Review of the EPA’s Draft
Fifth Drinking Water Contaminant
Candidate List (CCL 5). EPA–SAB–22–
007, August 19, 2022.
USEPA. 2022f. About Risk Assessment.
Available at https://www.epa.gov/risk/
about-risk-assessment.
Radhika Fox,
Assistant Administrator.
[FR Doc. 2022–23963 Filed 11–10–22; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR 296
[Docket ID FEMA–2022–0037]
RIN 1660–AB14
Hermit’s Peak/Calf Canyon Fire
Assistance
Federal Emergency
Management Agency, Department of
Homeland Security.
ACTION: Interim final rule; request for
comments.
AGENCY:
This interim final rule sets
out the procedures for Claimants to seek
compensation for injury or loss of
property resulting from the Hermit’s
Peak/Calf Canyon Fire.
DATES:
Effective Date: This rule is effective
November 14, 2022.
Comment Date: Comments must be
received on or before January 13, 2023.
ADDRESSES: You may submit comments,
identified by Docket ID FEMA–2022–
0037, via the Federal eRulemaking
Portal: http://www.regulations.gov.
Follow the instructions for submitting
comments.
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
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Angela Gladwell, Office of Response
and Recovery, 202–646–3642, [email protected]. Persons
with hearing or speech challenges may
access this number through TTY by
calling the toll-free Federal Relay
Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting comments and related
materials. We will consider all
comments and material received during
the comment period.
If you submit a comment, include the
Docket ID FEMA–2022–0037, indicate
the specific section of this document to
which each comment applies, and give
the reason for each comment. All
submissions may be posted, without
change, to the Federal e-Rulemaking
Portal at http://www.regulations.gov,
and will include any personal
information you provide. Therefore,
submitting this information makes it
public.
Viewing comments and documents:
For access to the docket, to read
background documents or comments
received, go to the Federal eRulemaking Portal at http://
www.regulations.gov.
FEMA will hold four in-person public
meetings to solicit public feedback
about this Interim Final Rule. FEMA is
announcing these public meetings to
give the public as much notice as
possible regarding their dates. FEMA
will hold meetings on the below dates.
If the locations and times of these
meetings change, FEMA will announce
the specific times and locations in a
separate Federal Register document.
November 17, 2022 from 5:00 p.m. to
7:00 p.m. MT at Old Memorial Middle
School, 947 Legion Drive, Las Vegas,
NM 87701;
December 1, 2022 from 5:00 p.m. to
7:00 p.m. MT at the Mora High School,
10 Ranger Road, Mora, NM 87732;
December 15, 2022 from 5:00 p.m. to
7:00 p.m. MT at Old Memorial Middle
School, 947 Legion Drive, Las Vegas,
NM 87701; and
January 5, 2023 from 5:00 p.m. to 7:00
p.m. MT at the Mora High School, 10
Ranger Road, Mora, NM 87732.
Depending on the number of speakers,
the meetings may end before their
announced end time, following the last
call for comments. Reasonable
accommodations are available for
people with disabilities. To request a
reasonable accommodation, contact the
person listed in the FOR FURTHER
INFORMATION CONTACT section as soon as
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possible. Last minute requests will be
accepted but may not be possible to
fulfill. All comments on this IFR made
during the meetings will be posted to
https://www.regulations.gov, Docket ID
FEMA–2022–0037. Please review http://
www.fema.gov/hermits-peak for more
information and any updates on these
public meetings.
II. Background
On September 30, 2022, President
Biden signed into law the Hermit’s
Peak/Calf Canyon Fire Assistance Act
(‘‘Act’’) as part of the Continuing
Appropriations and Ukraine
Supplemental Appropriations Act,
2023, Public Law 117–180, 136 Stat.
2114 (2022). The Congress passed the
Act to compensate those parties who
suffered injury and loss of property from
the Hermit’s Peak/Calf Canyon Fire
(‘‘Fire’’).
On April 6, 2022, the U.S. Forest
Service initiated the Las DispensasGallinas prescribed burn on Federal
land in the Santa Fe National Forest in
San Miguel County, New Mexico. That
same day the prescribed burn, which
became known as the ‘‘Hermit’s Peak
Fire,’’ exceeded the containment
capabilities of the U.S. Forest Service
and was declared a wildfire, spreading
to other Federal and non-Federal lands.1
On April 19, 2022, the Calf Canyon Fire,
also in San Miguel County, New
Mexico, began burning on Federal land
and was later identified as the result of
a pile burn in January 2022 that
remained dormant under the surface
before reemerging.2 The Hermit’s Peak
and Calf Canyon Fires merged on April
27, 2022, and both fires were reported
as the Hermit’s Peak Fire or the Hermit’s
Peak/Calf Canyon Fire. By May 2, 2022,
the fire had grown, causing evacuations
in multiple villages and communities in
San Miguel County and Mora County,
including the San Miguel County jail,
the State’s psychiatric hospital, the
United World College, and New Mexico
Highlands University.3 At the request of
1 Section 102(a)(1) and (2), Hermit’s Peak/Calf
Canyon Fire Assistance Act, Public Law 117–180,
136 Stat. 2114 (2002). See also ‘‘Las Dispensas
Prescribed Burn Declared Wildfire,’’ Apr. 6, 2022
found at https://inciweb.nwcg.gov/incident/article/
8049/68044/ (last accessed Sept. 15, 2022) and
Theresa Davis, ‘‘How ‘good fires’ can turn into
wildfires,’’ Albuquerque Journal, Apr. 30, 2022
found at https://www.alqjournal.com/2494692/howgood-fires-can-turn-into-wildfires.html (last
accessed Sept. 15, 2022).
2 See Bill Gabbert, ‘‘Investigators determine Calf
Canyon Fire caused by holdover from prescribed
fire,’’ Wildfire Today, May 27, 2022 found at
https://wildfiretoday.com/
?s=calf+canyon+holdover&apbct__email_id__
search_form_34270= (last accessed Oct. 6, 2022).
3 See Bill Gabbert, ‘‘Calf Canyon/Hermits Peak
Fire grows to more than 120,000 acres,’’ Wildfire
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New Mexico Governor Lujan Grisham,
President Biden issued a major disaster
declaration on May 4, 2022.4 The
Hermit’s Peak/Calf Canyon Fire was not
100 percent contained until August 21,
2022.5
The Act provides compensation to
injured persons impacted by the Fire. It
requires FEMA to design and administer
a claims program to compensate victims
of the Fire, for injuries resulting from
the fire and to provide for the
expeditious consideration and
settlement for those claims and injuries.
The Act further directs FEMA to
establish an arbitration process for
disputes regarding claims.
This interim final rule establishes the
procedures for the processing and
payment of claims to those injured by
the Fire sustaining property, business,
and/or financial losses. FEMA’s
procedures in this interim final rule are
generally consistent with prior
processes established for claims
associated with the Cerro Grande Fire
Assistance Act.6 Specific discussion and
request for comment is provided where
FEMA seeks to revise and/or modernize
that process. As referenced above,
FEMA plans to hold in-person public
meetings during the 60-day comment
period.
The first step in the claims process
under this part is for the Claimant to file
a Notice of Loss with the Office of
Hermit’s Peak/Calf Canyon Fire Claims
(‘‘Claims Office’’). After receipt and
acknowledgement by the Claims Office,
a Claims Reviewer will contact the
Today, May 2, 2022 found at https://
wildfiretoday.com/2002/05/02/calf-canyon-hermitspeak-fire-grows-to-more-than-120000-acres/ (last
accessed Sept. 15, 2022). See also Bryan Pietsch and
Jason Samenow, ‘‘New Mexico blaze is now largest
wildfire in state history,’’ The Washington Post,
May 17, 2022 found at https://
www.washingtonpost.com/nation/2022/05/17/calfcanyon-hermits-peak-fire-new-mexico/ (last
accessed Sept. 15, 2022).
4 87 FR 33808 (June 3, 2022).
5 ‘‘Hermits Peak/Calf Canyon Fire 100 percent
contained, fire officials say,’’ The New Mexican,
Aug. 21, 2022 found at https://
www.santafenewmexican.com/news/local_news/
hermits-peak-calf-canyon-fire-100-percentcontained-fire-officials-say/articles_5ac054fc-21a111ed-9401-134e852ee0a8.html (last accessed Sept.
15, 2022).
6 The Cerro Grande Fire Assistance Act (Pub. L.
106–246 (2001)) required FEMA to design and
administer a program for fully compensating those
who suffered injuries resulting from the Cerro
Grande Fire. The Cerro Grande fire resulted from a
prescribed fire ignited on May 4, 2000, by National
Park Service fire personnel at the Bandelier
National Monument, New Mexico under an
approved prescribed fire plan. That fire burned
approximately 47,750 acres and destroyed over 200
residential structures. The Cerro Grande Fire
Assistance Act process is detailed in an Interim
Final Rule (65 FR 52259 (Aug. 27, 2000) and a Final
Rule (66 FR 15847 (Mar. 21, 2001) that is now
codified at 44 CFR part 295.
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claimant to review the claim and help
the claimant formulate a strategy for
obtaining any necessary supporting
documentation to complete the Proof of
Loss. After discussion of the claim with
the Claims Reviewer, the claimant will
review and sign a Proof of Loss and
submit it to the Claims Office. The
Claims Reviewer will submit a report to
the Authorized Official for review to
determine whether compensation is due
to the claimant. The Authorized
Official’s written decision will be
provided to the claimant. If satisfied
with the decision, the claimant will
receive payment after returning a
completed Release and Certification
Form. If the claimant is not satisfied
with the decision, an Administrative
Appeal may be filed with the Director
of the Claims Office. If the claimant is
not satisfied after appeal, the dispute
may be resolved through binding
arbitration or heard in the United States
District Court for the District of New
Mexico. The specific proposals in this
rule are more fully described below.
III. Discussion of the Interim Final Rule
This interim final rule adds 44 CFR
part 296 to establish the procedures for
processing and payment of claims to
those injured by the Fire sustaining
property, business, and/or financial
losses.
A. Subpart A—General
Subpart A provides a general
introduction and overview of the
process.
1. Section 296.1
Purpose
This section provides for the purpose
of the regulation, which is to establish
the Office of Hermit’s Peak/Calf Canyon
Fire Claims to evaluate, process, and
pay actual compensatory damages for
injuries suffered from the Fire.
2. Section 296.2
Policy
This section explains FEMA’s policy
to provide expeditious resolution of
damage claims for those injured by the
Fire. The policy requires sensitivity to
claimants’ situations in administering
the process.
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3. Section 296.3
assistance
Information and
This section provides information on
the Claims Office and general
information about assistance available
as a result of the Fire.
4. Section 296.4
Definitions
This section provides definitions for
the relevant regulatory terms, consistent
with the Act and terms defined in the
Cerro Grande Fire Assistance process
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found at 44 CFR part 295. FEMA is
adding definitions for ‘‘Administrator,’’
‘‘Claims Office,’’ and ‘‘Hermit’s Peak/
Calf Canyon Fire’’ consistent with the
Act’s definition of these terms. FEMA is
including a definition of ‘‘Director’’ to
mean the Independent Claims Manager
appointed by the Administrator who
will lead the Claims Office. FEMA is
adding a definition of ‘‘Good Cause’’ to
further explain when FEMA will allow
claimants to extend the deadline for
filing, supplementing claims, or
reopening a claim for good cause. FEMA
is incorporating a definition for ‘‘Injury’’
similar to the definition of ‘‘Loss’’ found
in the Cerro Grande Fire Assistance
process to reflect the terminology of the
Act, and an updated definition of
‘‘Indian Tribe,’’ ‘‘Notice of Loss,’’ and
‘‘Proof of Loss’’ to reflect the definitions
and updated requirements found in the
Act. FEMA is also including a definition
for ‘‘Individual Assistance’’ consistent
with the definition found at 44 CFR
206.2. Finally, FEMA is including a
definition for ‘‘Subrogee’’ to mean an
insurer or other third party that has paid
compensation to a claimant for injury
and subrogated to any right the claimant
has to receive payment under the Act.
5. Section 296.5
Claims Process
Overview of the
The claims process is generally
described in this section and is
generally consistent with the process
established in the Cerro Grande Fire
Assistance process at 44 CFR part 295.
The claimant must first file a Notice of
Loss with the Claims Office. A Claims
Reviewer will then contact the claimant
to review the claim and help the
claimant formulate a strategy for
obtaining any necessary supporting
documentation. After discussion of the
claim with the Claims Reviewer, the
claimant will review and sign a Proof of
Loss. The Proof of Loss will document
all injuries and loss of property,
business losses, and financial losses
pursuant to the Act. The Claims
Reviewer will fully evaluate the claim
and submit a report to the Authorized
Official for review to determine whether
compensation is due to the claimant.
The Authorized Official’s written
decision will be provided to the
claimant. If the claimant is satisfied
with the decision, payment will be
received upon return of a completed
Release and Certification Form. If the
claimant is not satisfied with the
decision, an Administrative Appeal may
be filed with the Director of the Claims
Office. If the claimant is not satisfied
after appeal, the dispute may be
resolved through binding arbitration or
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heard in the United States District Court
for the District of New Mexico.
B. Subpart B—Bringing a Claim Under
the Hermit’s Peak/Calf Canyon Fire
Assistance Act
Consistent with the Cerro Grande Fire
Assistance claims process, subpart B
explains the procedure for filing a claim
under the Act.
1. Section 296.10 Filing a Claim Under
the Hermit’s Peak/Calf Canyon Fire
Assistance Act
Any Injured Person can file a Notice
of Loss to bring a claim under the Act
which must include a brief description
of each injury. FEMA will only accept
a Notice of Loss form to bring a claim
to ensure efficient and consistent
processing of all claims associated with
the Fire. FEMA reminds claimants in
paragraph (a) that the Notice of Loss
must contain a brief description of each
injury, as defined in section 296.4. For
the convenience of claimants, FEMA is
offering the option for a single Notice of
Loss submission for a household so long
as all those injured are identified.
Paragraph (c) explains the signature
process for the Notice of Loss. If the
claimant is an entity or individual who
lacks the legal capacity to sign the
Notice of Loss, then and only then can
a duly authorized legal representative of
the claimant sign the Notice of Loss.
The same principle applies to affidavits
submitted in support of claims, the
Proof of Loss, and the Release and
Certification Form. Public adjusters and
attorneys may not sign documents filed
under the Act on behalf of individual
claimants who have the legal capacity to
execute these documents.
Paragraph (e) modernizes the process
by providing options to file the Notice
of Loss by mail, electronically, or in
person. Details regarding the filing
process can be found at http://
www.fema.gov/hermits-peak. FEMA
seeks comment on whether this update
will improve the overall claims process.
Paragraph (f) clarifies that the Notice of
Loss is deemed to be filed on the date
received and acknowledged by the
Claims Office if completed and properly
signed.
2. Section 296.11 Deadline for
Notifying FEMA of Injuries
Pursuant to the Act, the deadline to
file a Notice of Loss is two years after
the date the interim final rule is
promulgated or November 14, 2022.
There is no ability to extend this
deadline under the Act and section
296.11 provides clear instructions
regarding the deadline to ensure
claimants are informed of the timeline
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by which to submit their Notice of Loss.
FEMA cannot provide compensatory
damages for an injury unless the
claimant has reported it to FEMA by
November 14, 2024. Sections 296.34 and
296.35 below establish a process for
notifying FEMA of injuries that are not
referenced in the initial Notice of Loss.
Whether a claimant tells FEMA about an
injury in the initial Notice of Loss or an
amendment under section 296.34,
FEMA must know about the injury by
November 14, 2024.
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3. Section 296.12 Election of Remedies
The Act permits an Injured Person to
seek compensation through one of three
mechanisms: (1) the Act; or (2) the
Federal Tort Claims Act; or (3) a civil
lawsuit against the United States (if
authorized by another law). The Act
further provides that a claimant’s choice
of one of these three mechanisms
becomes ‘‘final and conclusive on the
Claimant . . . upon acceptance of an
award.’’ Therefore, in paragraph (a),
FEMA clarifies that Injured Persons who
accept an award under the Act waive
the right to pursue any claims arising
out of or relating to the same subject
matter, whether through the Federal
Tort Claims Act or a civil lawsuit.
Under paragraph (b), any person or
entity who accepts an award on a claim
under the Federal Tort Claims Act or a
civil action against the United States, or
any employee, officer, or agency of the
United States for fire-related claims
waives the right to pursue any claims
for injuries arising out of or relating to
the same subject matter. FEMA seeks
comment on the best means of
implementing the Act’s election of
remedies provision.
4. Section 296.13 Subrogation
Section 296.13 describes the
procedures to be used by insurers (or
other third parties with the rights of a
Subrogee) for submitting subrogation
claims. This section is generally
consistent with the Cerro Grande Fire
Assistance process. The procedures
described in paragraphs (c) through (f)
of section 295.10 apply with equal vigor
to subrogation claims, including the
requirement that the Notice of Loss be
received by November 14, 2024. No
subrogation claim will be considered
unless the Subrogee elects the Act as its
exclusive mechanism for seeking
compensation from the United States for
all Hermit’s Peak/Calf Canyon Firerelated subrogation claims and any
other Hermit’s Peak/Calf Canyon Firerelated injuries. FEMA will reject a
subrogation claim to recover payments
until the Subrogee has paid the insured
everything that the Subrogee believes
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that the Injured Person is entitled to
receive under the policy. A Notice of
Loss may be filed if there is a dispute
between the Injured Person and the
Subrogee, which is pending before a
third party (e.g., appraiser, arbitrator, or
court), provided that the insurer has
made the final payment that it believes
that the insured is entitled to receive
under the policy.
5. Section 296.14
Assignments
Consistent with the Cerro Grande Fire
Assistance process, this section
prohibits assignment of claims. It also
prohibits assignment of the right to
receive payment for claims. FEMA
intends to make the Act’s compensation
payments only to the injured claimant.
C. Subpart C—Compensation Available
Under the Hermit’s Peak/Calf Canyon
Fire Assistance Act
Subpart C describes the compensation
available under the Act. Section
104(c)(3) of the Act limits payments
under the Act to ‘‘actual compensatory
damages measured by injuries suffered’’
and shall not include ‘‘interest before
settlement or payment of a claim; or
punitive damages.’’ Consistent with the
Cerro Grande Fire Assistance process,
FEMA views the terms ‘‘compensation,’’
‘‘damages,’’ and ‘‘compensatory
damages’’ under the Act as synonyms
and uses them interchangeably in this
interim final rule. FEMA may only
compensate claimants for damages that
resulted from the Fire. Each claim will
be reviewed on its unique facts and
merits. Claimants should not assume
that an injury resulting from the Fire is
not compensable simply because the
regulation fails to address it specifically.
Claimants should include all injuries
resulting from the Fire on the Notice of
Loss. Generally speaking, FEMA will
determine compensatory damages in
accordance with the laws of the State of
New Mexico, except where the Act is
more generous. If FEMA denies a claim,
an explanation of the reasons for doing
so will be provided.
1. Section 296.20
Compensation
Prerequisite to
Consistent with the Cerro Grande Fire
Assistance process, a claimant must be
an Injured Person who suffered an
injury as a result of the Fire and
sustained damages to receive
compensation under the Act.
2. Section 296.21
Allowable Damages
As required by the Act, FEMA will
provide for payment of actual
compensatory damages under paragraph
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(a). Consistent with the Act 7 and Cerro
Grande Fire Assistance process, FEMA
will apply the laws of the State of New
Mexico to the calculation of damages.
Damages must be reasonable in amount.
To reduce complexity in the process,
FEMA has eliminated language
referencing reasonable steps to reduce
damages.
Consistent with the Act and the Cerro
Grande Fire Assistance process,
paragraph (b) provides that FEMA will
not reimburse claimants for attorneys’
fees or agents’ fees. Our treatment of
attorney and agent fees is consistent
with the Act. Section 104(j) of the Act
limits the fees that an attorney or agent
may charge a client. It does not provide
that FEMA will reimburse claimants for
attorneys’ or agents’ fees and this
exclusion applies to attorney and agent
fees incurred in the prosecution of a
claim under the Act. FEMA also notes
that the Act does not regard attorneys’
fees as compensatory damages.
Attorneys’ fees are not considered
compensatory damages in tort actions
under New Mexico law.8 Further, the
statutory damages under New Mexico
law 9 may not be recovered as Congress
did not authorize FEMA to pay statutory
damages in the Act.
Paragraphs (c) through (e) explain
how FEMA plans to approach the types
of claims the agency expects to
encounter most frequently. FEMA
addressed all three categories of
damages allowed under the Act—
property, business, and/or financial
losses—but made a deliberate choice not
to address all the examples of such
categories enumerated under the Act.
There is no intention to limit the right
of claimants in this section. Claimants
may recover all damages allowable
under section 104(d)(4) of the Act.
Consistent with the approach taken in
the Act, paragraph (c) sets out FEMA’s
approach to compensating for property
losses. Paragraph (c)(1) explains FEMA’s
approach to loss of real property and
contents. FEMA will provide
compensatory damages for the damage
or destruction of a property and its
contents, including the reasonable cost
of reconstruction of a structure
comparable in design, construction
materials, size, and improvements.
FEMA will calculate these costs using
post-fire construction costs in the
locality that a damaged or destroyed
structure existed before the Fire. FEMA
will compensate property owners to
7 Section 104(c)(2), Hermit’s Peak/Calf Canyon
Fire Assistance Act, Public Law 117–180, 136 Stat.
2114, 2168 (2022).
8 See New Mexico Right to Choose/NARAL v.
Johnson, 127 N.M. 654 (1999).
9 See NM Stat. Ann. § 30–21–4.
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rebuild their structures in accordance
with the building codes and standards
applicable at the time that their claim is
processed, regardless of whether the
destroyed structure complied with
codes and standards before the Fire. To
process claims within a timely manner,
FEMA may be required to estimate a
property owner’s costs well before
construction is completed. Property
owners who decide to rebuild and later
find that their actual costs exceeded
FEMA’s estimate may supplement or
reopen their claims under Sections
296.34 and 296.35 of this interim final
rule.
In paragraph (c)(2), FEMA is limiting
compensation for trees and other
landscaping to 25 percent of the pre-fire
value of the structure and lot. This
approach is generally consistent with
the approach taken in the Cerro Grande
Fire Assistance process. Under New
Mexico tort law, damages are awarded
for destroyed or damaged trees based on
the value of the trees destroyed or the
difference in value of the real estate
with and without the trees.10 This 25
percent limitation does not apply to
business losses for timber, crops, and
other natural resources under section
296.21(d). The New Mexico tort law
formula is a less generous formula than
the replacement cost calculation FEMA
implemented in the Cerro Grande Fire
Assistance process. FEMA is
implementing the same formula as the
Cerro Grande Fire Assistance process
now.
Paragraph (c)(3) is intended to
implement section 104(d)(4)(A)(ii) of the
Act, which authorizes FEMA to pay
‘‘otherwise uncompensated damages
resulting from the Hermit’s Peak/Calf
Canyon Fire for . . . a decrease in the
value of real property.’’ Consistent with
the Cerro Grande Fire Assistance
process, paragraph (c)(3) allows FEMA
to compensate for realized losses in the
value of real property, i.e., land and
structure, to the extent that such losses
have not been fully compensated either
through compensation under paragraph
(c)(1) or otherwise. To be awarded
compensatory damages, paragraph (c)(3)
requires the claimant to either sell the
real property in a good faith arm’s
length transaction that closes no later
than November 14, 2024 and the
claimant realizes a loss in the pre-fire
value (see paragraph (c)(1)); or the
claimant can establish that the real
property value was permanently
diminished as a result of the Fire (see
paragraph (c)(2)). Losses involving the
10 See Mogollon Gold & Copper Co. v. Stout, 14
NW 245 (1907).
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value of commercial real estate will be
evaluated on a case-by-case basis.
Paragraph (c)(4) addresses
compensation to Injured Persons for
Subsistence Resources losses. FEMA is
generally mirroring the Cerro Grande
Fire Assistance process for subsistence
in this section, but consistent with
section 104(d)(4)(A)(iv) of the Act,
FEMA is not limiting compensation to
Indian Tribes, Tribal entities, Tribal
Members, or Households including
Tribal Members but rather allowing this
compensation for all Injured Persons
that have sustained Subsistence
Resource losses. Reimbursement is
available for the reasonable cost of
replacing Subsistence Resources used
by a claimant prior to the start of the
Fire, but that are no longer available to
the claimant as a result of the Fire.
Claimants may receive either
compensatory damages for the increased
cost of obtaining subsistence resources
from lands not damaged by the Fire or
for the cost of procuring substitute
Subsistence Resources in the cash
economy. Compensatory damages will
be paid for the period between April 6,
2022, and the date when subsistence
resources can reasonably be expected to
return to the level of availability that
existed before the Fire. Long-term
damages for subsistence resources will
be made in the form of lump sum cash
payments to eligible claimants.
In paragraph (d), FEMA addresses
business losses. Consistent with the Act,
FEMA will award compensatory
damages for damage to tangible assets or
inventory, including timber, crops, and
other natural resources; business
interruption losses; overhead costs;
employee wages for work not
performed; loss of business net income;
and any other loss that the
Administrator determines to be
appropriate for inclusion as a business
loss.
Paragraph (e) discusses financial
losses. Consistent with the Act, these
losses include increased mortgage
interest costs, insurance deductibles,
temporary or relocation expenses, lost
wages or personal income, emergency
staffing expenses, debris removal and
other cleanup costs, costs of reasonable
heightened risk reduction, premiums for
flood insurance, and any other loss that
the Administrator determines to be
appropriate for inclusion as a financial
loss. Paragraph (e)(1) addresses recovery
loans and provides for reimbursement of
loans, including Small Business
Administration (SBA) disaster loans
obtained after April 6, 2022, for
damages resulting from the Fire.
Consistent with the Cerro Grande Fire
Assistance process, FEMA will
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68089
reimburse interest for the period
beginning on the date the loan was
taken out and ending on the date when
the claimant receives a compensation
award (other than partial payment).
Claimants are required to use the
proceeds of their compensation awards
to repay the SBA disaster loans and
FEMA will coordinate with the SBA to
formulate procedures for assuring
repayment contemporaneously with the
compensation award receipt.
Paragraph (e)(2) addresses the
requirement from the Act that claimants
be eligible for compensation for flood
insurance premiums. Consistent with
the Act, claimants that were not
required by law to maintain flood
insurance before the Fire and did not
have such insurance before the Fire may
receive reimbursement for the cost of
reasonable flood insurance premiums
for a two-year period for their owned or
leased real property if required to
purchase flood insurance. Because there
has not been sufficient time to revise
flood zone maps since the Fire, some
claimants who may have legitimate
reasons for concern may not be required
to maintain flood insurance. FEMA is
exercising the discretion in section
104(d)(4)(C)(x) to allow compensation
for flood insurance premiums if the
claimant purchased flood insurance
after the Fire due to the fear of
heightened flood risk. FEMA may also
provide flood insurance directly
through a group or blanket policy.
Consistent with the Cerro Grande Fire
Assistance process, paragraph (e)(3)
states that FEMA may reimburse
claimants for reasonable out of pocket
treatment costs for mental health
conditions resulting from the Fire.
FEMA is offering reimbursement for
treatment received between April 6,
2022 and April 6, 2024. Damages for
mental health conditions are not
recoverable under New Mexico law,
except in a very limited class of cases.
While FEMA will reimburse claimants
for these expenses, given the limitation
of New Mexico law FEMA will not
entertain subrogation claims for mental
health treatment unless those expenses
could be recovered in a tort action
under New Mexico law.
During the fire and its immediate
aftermath, many individuals, charitable
organizations, businesses, and other
entities made voluntary donations of
cash, goods, and services to assist the
fire fighting and fire recovery effort and
to help those affected by the Fire.
Consistent with the Cerro Grande Fire
Assistance process, in paragraph (e)(4)
FEMA will compensate claimants for
the cost of merchandise, use of
equipment, or other non-personal
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services, directly or indirectly donated
to survivors of the Fire, if donated no
later than September 20, 2022. Given
the scope of the Fire, FEMA believes a
30-day period after containment of the
Fire constitutes an appropriate time
frame for these donations to be
reimbursable; however, the agency seeks
comment on whether this time period is
sufficient. Donations will be valued at
cost. FEMA is removing compensation
for discounts as provided in the Cerro
Grande Fire Assistance process, as the
agency currently lacks information
about whether such discounts were
provided in the wake of the Fire.
However, FEMA seeks comment on
whether claimants should be able to
seek compensation for discounts on
goods and services offered to fire
survivors as well as on the method for
calculating such compensation should
FEMA amend its regulations to
authorize compensation for discounts
on goods or services offered to fire
survivors.
Section 104(d)(4)(C)(vii) of the Act
grants FEMA the authority to
compensate claimants for reasonable
efforts to reduce an increased risk to
their property from wildfires, floods, or
other natural disasters. Consistent with
the Act and with the Cerro Grande Fire
Assistance process, paragraph (e)(5)
provides that FEMA will reimburse
claimants for reasonable efforts to
reduce risk back to levels prevailing
before the Fire. Such measures may
include, for example, risk reduction
projects that reduce an increased risk
from flooding, mudslides, and
landslides in and around burn scars in
an amount not to exceed 25 percent of
the higher of compensation from all
sources, (i.e., the Act, insurance, and
FEMA assistance under the Stafford
Act), for damage to the structure and lot,
or the pre-fire value of the structure and
lot. Claimants seeking compensation
under paragraph (e)(5) must include the
claim in a Notice of Loss filed not later
than November 14, 2024 or an amended
Notice of Loss filed not later than
November 14, 2025. This is the deadline
provided by section 104(d)(4)(C)(vii) of
the Act. Claimants should take into
account current building codes and
standards and consider nature-based
solutions 11 to reduce their heightened
risk. Claimants must complete the risk
reduction project for which they receive
compensation. FEMA believes
paragraph (e)(5) clarifies the process for
obtaining compensation for heightened
risk reduction losses, regardless of the
11 See https://www.fema.gov/emergencymanagers/risk-management/nature-based-solutions
(last accessed Oct. 31, 2022).
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type of structure the claimant owns.
FEMA is increasing the total
compensation available for risk
reduction projects given the general
increase in costs of such projects since
the Cerro Grande Fire Assistance
process was implemented and to
encourage claimants to consider
implementing nature-based solutions to
reduce the heightened risks to their
property as a result of the Fire.12 FEMA
seeks comment on whether the
compensation is sufficient to reduce the
heightened risk and whether naturebased solutions should be considered in
risk reduction projects.
Paragraph (f) addresses insurance and
other benefits. The Act allows FEMA to
provide compensation only if damages
have not been paid or will not be paid
by insurance, a third party, or through
another FEMA program. Claimants are
not required to submit their claims to
their insurance company nor are they
required to pursue a settlement from
their insurance company after filing a
claim under the Act. FEMA encourages
claimants to continue to pursue their
insurance claims because this may
expedite the process of reconstructing
documentation that will be helpful to
the claims process under the Act. If a
claimant has received or expects to
receive a payment from an insurance
company, the actual or anticipated
payment must be disclosed. If a
claimant has not settled with the
insurance company by the time FEMA
is prepared to make a partial payment
on the claim, FEMA will examine the
insurance policy and determine what
the agency reasonably expects the
insurance company to pay. FEMA will
review the issues again in the
Authorized Official’s determination. If
the insurance company has not paid all
that FEMA anticipated, FEMA can
award the difference at the time that the
Authorized Official’s determination is
made. FEMA notes that the State of New
Mexico generally requires insurance
companies to settle catastrophic claims
brought by policyholders within 90 days
of the date that the claim was reported
to the insurer.13 FEMA expects that
12 FEMA
seeks to encourage Claimants to
consider nature-based solutions consistent with
Executive Order 14072 ‘‘Strengthening the Nation’s
Forests, Communities, and Local Economies,’’ 87
FR 24851, Apr. 22, 2022.
13 See New Mexico Statutes Annotated Chapter
59A–16–20 (2021) found at https://
nmonesource.com/nmos/nmsa/en/item/4438/
index.do#!fragment/zoupio-_Toc110333083/
BQCwhgziBcwMYg
K4DsDWszIQewE4BUBTADwBdoAvbRABw
EtsBaAfX2zgEYOAGAZn+4AOXgEoANMmyl
CEAIqJCuAJ7QA5KrERCYXAnmKVqraVIAbQg
AIAggDkAIheR1khUko1adCAMp5
SAIRUAJQBRABkQgDVbAGEQsVIwACNo
T10QEREgA (last accessed Sept. 27, 2022).
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most, if not all, insurance claims will be
paid before the Authorized Official’s
determination is issued. However, in the
event that the insurance claim is
resolved after the Authorized Official’s
determination is issued and as a result
the claimant is due additional
compensation under the Act, the
claimant should ask the Claims Office to
reconsider the matter under sections
296.34 or 296.35.
Those Injured Persons eligible for
disaster assistance under the Public
Assistance Program are expected to
apply for all available assistance, and
compensation will not be awarded for
specific costs or losses that are eligible
under that program. Consistent with the
Act, FEMA clarifies that the Federal
share of costs for Public Assistance
projects is 100 percent. Similarly,
compensation under the Act will not be
awarded for losses or costs that have
been reimbursed under the Federal
Assistance to Individual and
Households Program. Those individuals
that obtain assistance under the
Individuals and Households Program
are not precluded from filing a claim
under the Act. Claimants may seek
compensation for losses or costs that
exceed the amount provided under the
Individuals and Households Program.
FEMA encourages all Injured Persons to
seek assistance under the FEMA
programs for which they are eligible.
Those individuals suffering injuries that
are compensable under State or Federal
worker’s compensation laws must apply
for all benefits under such laws. Note
that gifts or donations made to
claimants by non-governmental
organizations and individuals, other
than wages paid by the claimant’s
employer or insurance payments, will
be disregarded in evaluating claims and
need not be disclosed by claimants.
D. Subpart D—Claims Evaluation
Subpart D explains the process after
the claim is filed, including how claims
are documented and how claimants can
obtain payment if they agree with
FEMA’s evaluation.
1. Section 296.30 Establishing Injuries
and Damages
Section 296.30 explains FEMA’s
approach to documentation of injuries
which is generally consistent with the
Cerro Grande Fire Assistance process.
This section explains who has the
burden of proof, the forms needed when
going through the claims process and
who has the authority to settle claims.
FEMA expects that claimants will
provide whatever documentation is
reasonably available to support their
claim.
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Once a claimant has begun the
process set out in section 296.30, the
claims office assigns a Claims Reviewer
to the claim. The Claims Reviewer will
review, investigate, and objectively
evaluate the claim for the Claims Office.
Claims Reviewers cannot function as
agents or representatives of the
claimant. Claims Reviewers will be
proactive in helping claimants identify
injuries and in formulating a strategy for
proving them and in assisting claimants
in locating documentation that may be
available from third-party sources.
Claimants may be asked to sign release
forms authorizing FEMA’s Claims
Reviewers to obtain information and
documentation from third-party sources.
Section 295.30(a) states that the
claimant bears the burden of proof for
establishing all elements of the injury
and compensatory damages. This
paragraph also provides claimants the
opportunity to make a record supporting
the claim by submitting any information
or documentation that they deem
relevant. The responsibility for making
this record rests with the claimant, not
the Claims Reviewer. As FEMA must
support compensation decisions with
evidence, the agency expects claimants
will provide whatever evidence is
reasonably available to corroborate the
nature, extent, and value of their losses.
If documentation or substantiating
evidence of an injury or damage is not
reasonably available (e.g., it burned in
the fire), the Claims Office may
determine that the claimant’s statement
alone will be sufficient to substantiate
the injury or damage based on the
unique circumstances presented by each
case, taking into consideration potential
alternative sources of substantiation and
documentation. Paragraph (a) authorizes
the Claims Office to ask claimants to
provide affidavits to support the claim.
FEMA is, however, sensitive to privacy
concerns of claimants. Where FEMA
believes an affidavit from a close
associate of the claimant will strengthen
the claim, the agency may suggest that
the claimant obtain one. FEMA will not
automatically reject the claim if the
claimant declines to provide the
affidavit. FEMA will consider all
evidence in the record, including an
alternative substantiation offered by the
claimant, in making a decision.
Paragraph (a) also reminds claimants
that FEMA may require an inspection of
real property as part of the claims
process and their establishment of
injuries and damages. FEMA is advising
claimants who have suffered business
losses that they may expedite resolution
of their claim if they voluntarily provide
copies of their income tax returns.
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Claimants who decline to submit their
income tax return voluntarily during the
claims review process must sign an
affidavit agreeing to produce the returns
if requested by the Department of
Homeland Security’s Office of the
Inspector General (DHS OIG) or the
General Accounting Office (GAO) in the
course of an audit.
Under paragraph (b), claimants are
required to attest to the nature and
extent of each injury of which
compensation is sought in the Proof of
Loss. Before the Authorized Official’s
determination can be issued, the
claimant must sign the Proof of Loss.
This Proof of Loss must be signed under
penalty of perjury by the claimant or the
claimant’s legal representative in
specific circumstances. Paragraph (b)
also sets forth the deadline by which a
Proof of Loss must be submitted after a
Notice of Loss and allows discretion for
good cause to extend that deadline. For
example, a claimant, through no fault of
their own, may not be able to access
needed documentation in time to
submit a claim and the Director of the
Claims Office may consider those
circumstances as good cause to extend
the deadline. It is in both the claimant’s
interest and FEMA’s interest that claims
be expeditiously resolved. The intent of
the Act is to compensate fire survivors
as quickly as possible. Congress
entrusted FEMA with administering an
orderly compensation process. Section
104(d)(1)(A)(i) of the Act states that
FEMA must determine the
compensation due to a claimant within
180 days of the date upon which the
Notice of Loss is filed. It is impossible
for FEMA to fulfill this mandate if
claimants are unwilling to provide
specific details about their injuries by
signing the Proof of Loss. While FEMA
believes that Congress intended for the
agency to have the flexibility to provide
claimants with extra time document
their injuries in appropriate cases,
nothing in the Act suggests that
claimants should be able to keep their
claims open for an extended period of
time. Claimants who submit their Notice
of Loss should submit a signed Proof of
Loss to the Claims Office not later than
150 days after the initial Notice of Loss
was submitted. Adherence to this
deadline will leave FEMA with 30 days
to determine the compensation due to
the claimant and enable the agency to
meet the 180-day timeframe required by
Congress. To provide a claims process
that is orderly for all and to meet the
agency’s obligation to be good stewards
of the Federal funds provided by
Congress for administration of the
program, Claimants must comply with
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68091
the timeframes for signing a Proof of
Loss set forth in this paragraph. Section
104(d)(1)(A)(i) of the Act assumes that
the claimant will fully cooperate with
FEMA in the adjudication of the claim
to ensure a timely determination. FEMA
will try to process claims in less than
180 days but may require the full 180day period in many cases. Partial
payments are intended to ease the
burden on the claimant during this
period.
There is flexibility built into the
process for claimants to tell FEMA
about injuries and damages that they
could not have discovered or did not
remember when they signed the Proof of
Loss. Sections 296.34 and 296.35
explain this flexibility. If a claimant is
not prepared to sign a Proof of Loss, for
good cause, an extension may be
requested from the Director of the
Claims Office. Extensions will not be
granted automatically, but only on
consideration of the equities in the
request. Alternatively, the claimant may
withdraw the claim and re-file the claim
once before November 14, 2024, when
the injuries are better defined. If a
claimant does not complete the Proof of
Loss within the timeframes specified in
this paragraph or fails to obtain an
extension, the Claims Office may
administratively close the claim.
Paragraph (c) requires claimants who
receive compensation to sign and return
a Release and Certification Form,
including for partial payments under
section 296.33. The Release and
Certification Form must be received
before the Claims Office provides
payment on the claim. FEMA is
simplifying the process from the Cerro
Grande Fire Assistance process to
eliminate specific timelines and would
rather tie the return of the form to
payment. Section 104(e) of the Act
provides that at the end of the process,
the United States and all employees,
officers, and agencies of the United
States are released from all claims
related to the Fire and the compensation
settlement is conclusive for the
claimant. The Act does not bar the
United States from recovering payments
made to the claimant after the return of
the Release and Certification Form. The
Act was intended to provide a more
expeditious and less adversarial process
for compensation than is available
under the Federal Tort Claims Act.
Paragraph (c) provides that the United
States will not attempt to recover
monies paid to claimants completing
this process, except in the case of fraud
or misrepresentation by the claimant or
the claimant’s representative, failure of
the claimant to cooperate with an audit
as required by section 296.36, or a
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material mistake by FEMA. The Act
generally obligates FEMA to attempt to
recover payments where there is
evidence of civil or criminal fraud,
misrepresentation, presentation of a
false claim or where a claimant was not
eligible for a partial payment received
pursuant to the Act.14 FEMA may also
recover overpayments where the agency
made a material mistake in calculation
of the damages owed to the claimant
and in other appropriate cases.
Paragraph (d) authorizes the Director
of the Claims Office to offer claimants
an opportunity to settle or compromise
a claim in whole or in part at any time
during the process. This authority
allows flexibility in the process to help
claimants recover more efficiently and
is consistent with the Cerro Grande Fire
Assistance process.
2. Section 296.31 Reimbursement of
Claim Expenses
Early in the process, claimants should
also discuss with the Claims Reviewer
whether FEMA will require an appraisal
or other third-party opinion of value to
evaluate a claim. FEMA may order
appraisals and third-party opinions
directly or request the claimant to
obtain them. Section 296.31 provides
that if FEMA requests the claimant
provide an appraisal or other third-party
opinion, FEMA will reimburse the
claimant for the reasonable cost of
obtaining it. Paragraph (a) addresses the
circumstances in which FEMA will
reimburse a claimant for reasonable
costs of third-party opinions obtained
by the claimant. It provides that FEMA
will do so only if the agency requests
that the claimant procure the opinion. It
is the claimant’s responsibility to
develop and submit whatever evidence
they think is appropriate to support the
claim. Claims preparation expenses are
not regarded as compensatory damages
under New Mexico law or under the
Federal Tort Claims Act. Similarly, they
are not recoverable under the Act. If
FEMA requests that a claimant obtain a
third-party opinion and the expert
selected by the claimant believes they
must consult with other experts to
render the opinion, the claimant should
notify the Claims Reviewer and provide
an estimate of the total cost. FEMA will
not reimburse the claimant for the cost
of these other experts unless the Claims
Office has expressly approved their use.
Compensatory damages for time spent
in claims preparation are not available
under New Mexico law or the Federal
Tort Claims Act. Moreover, there is no
evidence Congress intended that
14 See Section 104(l), Public Law 117–180, 136
Stat. 2114, 2168.
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claimants be compensated for the value
of their time in preparing a claim.
Providing compensation for a claimant’s
time would be difficult to administer, as
FEMA would have to determine
equitably the value of a claimant’s time
and to verify that claimants have
expended the number of hours that are
claimed. FEMA’s payments under the
Act are subject to independent audit by
the GAO and the DHS OIG and
claimants would likely find attempts by
auditors to verify the payment for hours
spent in the claims process highly
intrusive. However, as with the Cerro
Grande Fire Assistance process, FEMA
is choosing to exercise discretion to
provide a lump sum payment to
claimants for miscellaneous and
incidental expenses incurred in the
claims process. Subrogation claimants
and claimants whose only Fire-related
loss is the cost of a flood insurance
premium are not eligible for the lump
sum payment. FEMA will provide a
lump sum payment of five percent of
the insured and uninsured loss
(excluding flood insurance premiums),
not to exceed $25,000. The minimum
lump sum payment is $150.15 The
payment amounts for these
miscellaneous and incidental expenses
are based upon the Cerro Grande Fire
Assistance process and have been
updated to reflect inflationary increases
since that rule was published.16 FEMA
believes that paragraph (b) represents a
fair and reasonable accommodation
between the agency’s responsibility to
spend Federal funds wisely and the
desire to compensate claimants as fully
as possible. The lump sum payment
under paragraph (b) will be made after
a properly executed Release and
Certification Form is returned to the
Claims Office and cannot be obtained
through partial payment.
3. Section 296.32 Determination of
Compensation Due to Claimant
Section 296.32 explains how FEMA
will evaluate claims. Claims Reviewers
do not have the authority to determine
whether a claim is eligible for
compensation or how much
compensation will be paid. Their role is
to work with the claimant to obtain
relevant evidence, analyze the evidence,
and make a recommendation to an
Authorized Official. Each claim will be
15 The Cerro Grande Fire Assistance regulations at
44 CFR 295.31(b) provided for a lump sum payment
of $100 or 5% of the compensatory damages, not
to exceed $15,000.
16 Inflationary adjustments have been made based
on the Consumer Price Index for All Urban
Consumers as published by the U.S. Department of
Labor. See generally https://www.bls.gov/data/
inflation_calculator.htm.
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assigned to an Authorized Official, and
only Authorized Officials have the
authority to decide claims.
When the Authorized Official has
decided a claim, they will send a
written notification to the claimant’s
address as it appears in the Claims
Office records. The date that appears on
this notification starts a 120-day clock
during which a claimant must either
accept the finding or appeal it. The
procedure for appealing an Authorized
Official’s determination is explained in
section 295.41. If the claimant has not
acted at the end of this period, they may
forfeit further rights to an
Administrative Appeal. The Director of
the Claims Office may modify the 120day deadline if good cause exists.
4. Section 296.33 Partial Payments
This section explains the partial
payment process. Section 104(d)(2) of
the Act authorizes FEMA to make
partial payments at the request of the
claimant. As in the Cerro Grande Fire
Assistance process, the Claims Office
may make one or more partial payments
to the claimant if there is a reasonable
basis to estimate the claimant’s
damages. FEMA believes this section
offers sufficient discretion to the agency
to make partial payments of any amount
and to expedite payments where it is
appropriate to do so. The amount of a
partial payment in any particular case
will depend on the nature of the claim
and in some cases, how well the claim
is supported. FEMA encourages
claimants who require expedited
payments to discuss the matter with a
Claims Reviewer. FEMA is updating the
Cerro Grande Fire Assistance process by
requiring claimants to sign a Release
and Certification Form as part of the
partial payment process. This change
simplifies the requirement that the Form
be submitted to receive any payment.
While the Claims Office’s decision to
provide a partial payment cannot be
appealed, acceptance of a partial
payment does not affect the claimant’s
ability to pursue an appeal, arbitration,
or other options under the Act with
respect to any portion of a claim for
which a Release and Certification Form
is not executed.
5. Section 296.34 Supplementing
Claims
Section 104(d)(1)(A)(i) of the Act
requires FEMA to determine and fix the
amount to be paid for a claim within
180 days after the claim is submitted. To
meet this deadline, FEMA may ask
claimants to sign the Proof of Loss and
require that the Authorized Officials
render a definitive determination more
expeditiously than some claimants
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would prefer. Section 296.34 provides
claimants with the flexibility to make
additional claims after submitting a
Proof of Loss and before submission of
the Release and Certification Form.
Before signing the Proof of Loss, the
claimant may amend the Notice of Loss
to seek compensation for injuries not
referenced in the Notice of Loss.
claimants who wish to amend the
Notice of Loss should contact the
Claims Reviewer. The additional
injuries will be noted on the Proof of
Loss and will be adjudicated in the
Authorized Official’s determination.
Once the claimant has signed the Proof
of Loss, they may request permission
from the Director of the Claims Office to
amend the Notice of Loss for
consideration of one or more injuries
not addressed in the Proof of Loss. The
claimant should consult with the Claims
Reviewer about the procedure for
obtaining permission of the Director of
the Claims Office. The Director of the
Claims Office will grant the request if it
is supported by good cause. If the
request is granted, the Director will
determine whether compensation is due
for the additional injury under the
Administrative Appeal procedures
described in subpart E of part 296. The
additional injury will not be considered
until after the Authorized Official’s
determination is issued on the
remainder of the claim. If the claimant
decides to appeal the Authorized
Official’s determination on other
injuries, the Director of the Claims
Office will decide both matters in a
single appeal proceeding. Claimants are
reminded that they must put the Claims
Office on notice of any injury not
mentioned in the initial Notice of Loss
not later than the deadline for filing an
Administrative Appeal under section
296.41 or November 14, 2024,
whichever is earlier. A written request
for permission to amend a Notice of
Loss after the Proof of Loss is signed
must be on file with the Director of the
Claims Office no later than the deadline
for filing an Administrative Appeal
under section 296.41 or November 14,
2024, whichever is earlier.
6. Section 296.35 Reopening a Claim
Section 296.35 provides for reopening
a claim after the claimant has submitted
a Release and Certification Form again
with the goal to allow claimants an
opportunity to request damages in
excess of those previously awarded. In
appropriate cases, the claimant can use
the reopening provision of this section
to seek compensation for an injury not
previously reported to FEMA.
Specifically, claimants may request to
reopen if, not later than November 14,
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2025, the claimant desires heightened
risk reduction compensation under
section 296.21(e)(5); the claimant closed
the sale of a home and wishes to present
a claim for a decrease in the value of the
real property under section 296.21(c)(3);
or the claimant has incurred additional
losses under section 296.21(c)(1) as part
of a reconstruction in excess of those
previously awarded. Requests to reopen
for good cause will only be granted in
the Director’s discretion. The Director’s
decision to reopen or not reopen a claim
is not subject to review under the
arbitration provisions of Subpart E of
this part. Reopened claims will not be
decided by the Director of the Claims
Office but by an Authorized Official,
after considering the recommendation of
the Claims Reviewer. Claimants who are
dissatisfied with the Authorized
Official’s determination on the reopened
claim may appeal to the Director of the
Claims Office pursuant to subpart E of
part 296.
7. Section 296.36
Access to Records
Claimants are required to grant the
DHS OIG and the Comptroller General
of the United States access to the subject
property and to records and information
in their control that are relevant to their
claims for purposes of audit and
investigation. These records include,
but are not limited to, any relevant tax
records. The Act requires that the GAO,
a legislative branch agency, audit claims
and payments made under the Act. The
DHS OIG is responsible for investigating
charges of fraud and abuse and auditing
FEMA’s programs.
8. Section 296.37
Information
Confidentiality of
The Privacy Act protects the
confidentiality of information provided
by individual claimants. This
information may only be disclosed with
the consent of the claimant or pursuant
to a routine use, which has been
disclosed to the public. Confidential,
proprietary, and trade secret
information provided by entities, such
as business, Indian Tribes, Tribal
entities, and government agencies, are
not eligible for Privacy Act protection,
but may be exempt from disclosure
under the Freedom of Information Act.
Non-individual claimants are
encouraged to discuss the need to
protect confidential information from
disclosure with FEMA before the
information is submitted. FEMA may
not be able to prevent the disclosure of
this information without awareness of
its confidential nature.
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E. Subpart E—Dispute Resolution
Subpart E discusses a claimant’s
rights if they disagree with FEMA’s
evaluation of the claim.
1. Section 296.40
Scope
Claimants are afforded a right to
appeal the initial determination to the
Director of the Claims Office. This is
referred to as an Administrative Appeal.
If the claimant is dissatisfied with the
Administrative Appeal decision, they
may put the matter to binding
arbitration or seek judicial review in
federal court.
2. Section 296.41
Appeal
Administrative
Section 296.41 describes the
Administrative Appeal process.
Consistent with the Cerro Grande Fire
Assistance process, claimants
disagreeing with the conclusions of
FEMA’s Authorized Official under
section 296.32 must pursue an
Administrative Appeal before initiating
arbitration or seeking judicial review in
federal court. An Administrative Appeal
decision constitutes the final decision of
the Director of the Claims Office.
Pursuant to paragraph (a), a written
request for an Administrative Appeal
must be postmarked or electronically
stamped within 120 days after the date
of the Authorized Official’s
determination.
FEMA requests that claimants provide
the Claims Reviewer with all relevant
evidence supporting the claim. The goal
of the process is to render equitable
compensation decisions the first time,
not to encourage Administrative
Appeals or further proceedings.
However, paragraphs (c) and (d) allow
for the claimant to submit supplemental
filings and to present any relevant
factual evidence concerning the issues
under appeal, even if it was not
presented earlier in the process to
ensure claimants are fully heard.
Claimants who wish to raise new claims
or damage theories after submitting a
Proof of Loss should ask the Director of
the Claims Office to supplement their
claim under section 296.34 of this part.
Under section 296.41, the Director of
the Claims Office may request
additional information, may schedule a
conference, or may convene a hearing
under paragraphs (e), (f), and (g)
respectively. To ensure effective,
efficient resolution of claims, FEMA is
updating the process to allow claimants
to request a mediator to facilitate a
conference during the Administrative
Appeal. This allows claimants to
request a facilitator earlier in the
process as part of the Administrative
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Appeal at a conference in paragraph (f)
instead of at the later arbitration stage of
the process. FEMA believes this change
will resolve claims faster consistent
with the Act’s purpose to expeditiously
consider and settle claims. FEMA seeks
comment on this update. Following the
Administrative Appeal decision, if the
claimant does not initiate arbitration or
seek judicial review in the prescribed
timelines, their concurrence with the
decision will be conclusively presumed
under paragraph (i). If the claimant
concurs with the Director’s decision,
any additional damages will be paid
upon receipt of a properly executed
Release and Certification Form.
3. Sections 296.42 Arbitration
Section 104(h)(3)(A) of the Act
requires FEMA establish procedures
under which a dispute regarding a claim
may be settled by arbitration. Section
296.42 establishes these procedures.
Consistent with the Cerro Grande Fire
Assistance arbitration process, any issue
decided in an Administrative Appeal
may be referred to binding arbitration.
Paragraph (a) requires the written
request for arbitration be electronically
stamped or postmarked no later than 60
days after the Administrative Appeal
decision date. FEMA is updating the
process to allow for electronic
submission of arbitration requests and
seeks comment on this update. Evidence
not previously entered into the
Administrative Record will not be
considered during arbitration under
paragraph (b). A claimant cannot
arbitrate an issue unless it was raised
and decided in the Administrative
Appeal.
As explained above, FEMA is
updating the process to allow claimants
to request a mediator to facilitate a
conference during the Administrative
Appeal in 296.41(f). FEMA believes this
change will resolve claims faster
consistent with the Act’s purpose to
expeditiously consider and settle
claims. FEMA seeks comment on this
update.
Based on FEMA’s experience with the
arbitration process for the Cerro Grande
Fire Assistance, the agency is updating
paragraph (c) regarding arbitrator
selection. Specifically, FEMA is
changing the arbitrator selection process
to a random drawing from a list of
qualified arbitrators who have agreed to
serve, rather than allowing the claimant
to select an arbitrator from such a list for
claims at or below a certain amount.
This change would improve efficiency
in the process and would not result in
any inequity to claimants, as the
selection would be from a random
drawing. FEMA believes this change
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will result in a faster assignment of
arbitrator to resolve the claim more
efficiently consistent with the Act’s goal
to expeditiously consider and settle
claims for injuries resulting from the
Fire. FEMA seeks comment on this
process. FEMA is also increasing the
thresholds associated with the
assignment of either one arbitrator or a
panel of three arbitrators to reflect
inflationary increases since the Cerro
Grande regulation was published.17
Amounts in dispute of $500,000 or less
will be decided by one arbitrator while
a panel of three arbitrators will decide
amounts in dispute exceeding
$500,000.18 FEMA seeks comment on
the increased thresholds.
In paragraph (d), FEMA seeks to
modernize the arbitration process by
generally offering virtual arbitration
hearings to promote efficiency in the
process. Additionally, given the scope
of the Fire, FEMA is not providing a
specific location for any in-person
hearing, but rather allowing the
Arbitration Administrator the flexibility
to select a location in New Mexico for
those limited circumstances in which an
in-person hearing is held. Decisions will
be in writing and provided to the
Arbitration Administrator, the claimant,
and the Director of the Claims Office
under paragraph (e). FEMA seeks
comment on these provisions.
Consistent with the Cerro Grande Fire
Assistance process, decisions will be
rendered no later than 10 days after a
hearing is concluded, although the
Arbitration Administrator may extend
the decision timeline with notice to
both the claimant and the Director of the
Claims Office. Written arbitration
decisions will establish the
compensation due to a claimant, if any,
and the corresponding rationale.
Consistent with the Cerro Grande Fire
Assistance arbitration process, the
Arbitration Administrator will forward a
Release and Certification Form to the
claimant with the written decision. Any
additional compensation that is
awarded as a result of the arbitration
will be paid after the signed Release and
Certification Form is received.
Paragraphs (f) and (g) are generally
consistent with the Cerro Grande Fire
Assistance process. If additional
compensation is awarded at arbitration,
the Arbitration Administrator will
forward the decision to the claimant
with a Release and Certification Form.
17 Inflationary adjustments have been made based
on the Consumer Price Index for All Urban
Consumers as published by the U.S. Department of
Labor. See generally https://www.bls.gov/data/
inflation_calculator.htm.
18 The Cerro Grande Fire Assistance regulations at
44 CFR 295.42(d) set the threshold at $300,000.
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Such compensation will be paid to the
claimant after the signed Form is
received by the Arbitration
Administrator. FEMA reiterates in
paragraph (g) that arbitration decisions
are not subject to any further appeal or
review and are binding on the claimant
and on FEMA. Paragraph (i) includes a
provision that while the Arbitration
Administrator will pay all fees and
expenses of the arbitrator or arbitrators
assigned, claimants are responsible for
any expenses they incur as a result of
the arbitration, including travel costs.
This update to the Cerro Grande Fire
Assistance process ensures fairness by
eliminating the provision to allow the
parties to jointly agree to pay such fees.
FEMA seeks comment on this provision.
4. Section 296.43
Judicial Review
Section 296.43 discusses judicial
review of the Administrative Appeal
decision, which remains consistent with
the Cerro Grande Fire Assistance
process and the provisions of the Act.
Claimants may seek judicial review in
lieu of arbitration if dissatisfied with the
outcome of the Administrative Appeal
decision. The suit must be filed in the
United States District Court for the
District of New Mexico within 60 days
of a final decision of the Administrator
under the Act. Only evidence in the
administrative record will be considered
by the court. Claimants should be aware
that section 104(i)(3) of the Act requires
that the court uphold the
Administrative Appeals decision if it is
supported by substantial evidence on
the record considered as a whole.
IV. Regulatory Analysis
A. Administrative Procedure Act (APA)
For the reasons that follow, FEMA is
issuing this rule as an interim final rule
pursuant to statutory authority under
the Act. Specifically, section 104(f)(1)
requires FEMA to publish ‘‘interim final
regulations for the processing and
payment of claims under this Act.’’
Further, these regulations must be
published ‘‘not later than 45 days after
the date of enactment.’’ Given Congress’
specific authority to issue an interim
final rule, the agency is proceeding
without advance notice and comment as
required under the APA. See 5 U.S.C.
553(b) and (c).
The APA also provides an exception
to prior notice and comment for rules of
agency organization, procedures, or
practice. 5 U.S.C. 553(b)(A). This
interim final rule implements the
Hermit’s Peak/Calf Canyon Fire
Assistance Act by detailing how FEMA
will process and pay claims under the
Act. The majority of the provisions in
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this interim final rule are procedural
because they create the procedural
framework through which FEMA is able
to efficiently implement a claims
process to compensate victims of the
Fire. The rule details how a claimant
may seek compensation through a
claims process with the Office of
Hermit’s Peak/Calf Canyon Fire Claims
(‘‘Claims Office’’) from initiating a claim
with a Notice of Loss through appeal
and arbitration or judicial review of an
Authorized Official’s determination of
the claim. This interim final rule
provides the voluntary process by
which an Injured Party may file a claim
under the Act. Injured Persons may seek
compensation through the Federal Tort
Claims Act or a civil action in lieu of
filing a claim under the Act. This
interim final rule sets out the agency’s
procedure for how to voluntarily file a
claim. Since this rule is procedural in
nature, it is excepted from the notice
and comment requirements under 5
U.S.C. 553(b)(A).
Consistent with Congress’ direction in
section 104(f)(1) of the Act that FEMA
publish ‘‘interim final regulations for
the processing and payment of claims
under [the] Act,’’ good cause exists
pursuant to 5 U.S.C. 553(b)(B) as it
would be impracticable and contrary to
the public interest to require notice and
comment rulemaking in this instance.
Potential claimants are currently
without (and awaiting) compensation
for injuries they suffered due to a
massive wildfire. They need to rebuild
as soon as possible to regain normalcy,
reduce erosion, and restore land
health.19 The sooner the federal
government can compensate them, the
sooner they can begin the process of
rebuilding and recovery. And so FEMA
must establish the relevant regulatory
framework without delay, so as to be
able to respond expeditiously and
without unnecessary confusion
regarding the applicable procedures for
claimants under the Act. Section
102(b)(2) lists as one of the two
purposes of the Act to ‘‘provide for the
expeditious consideration and
settlement of claims’’ for the injuries
suffered as a result of the Fire. The Fire
constitutes the largest wildfire in New
Mexico history.20 Over 340,000 acres of
19 See New Mexico Forest and Watershed
Restoration Institute, ‘‘Hermit’s Peak and Calf
Canyon Fire: The largest wildfire in New Mexico’s
recorded history and its lasting impacts’’ Aug. 24,
2022 found at https://storymaps.arcgis.com/stories/
d48e2171175f4aa4b5613c2d11875653 (last
accessed Sept. 27, 2022).
20 See Bryan Pietsch and Jason Samenow, ‘‘New
Mexico blaze is now largest wildfire in state
history,’’ The Washington Post, May 17, 2022 found
at https://www.washingtonpost.come/nation/2022/
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forest burned during the Fire and over
half of the land impacted by the Fire
consisted of privately-owned land, with
just under 200,000 total acres burned.21
At least 160 homes and a total of over
900 structures were destroyed during
the Fire.22 Despite containment, the
impact of the Fire continues to be felt
in the impacted areas, causing flooding
and setting off a drinking water crisis.23
The higher burn severity of soil on
private lands increases the likelihood of
flooding and mudslide impacts on those
areas. Residents in the areas of the Fire
have already suffered significant
damage from flooding, including
washed out roads and buildings,
drowned pastures, and burned debris
moved downstream.24 In addition, as
noted above, Congress explicitly
mandated in section 104(f)(1) of the Act
that FEMA promulgate these regulations
expeditiously as interim final
regulations, a factor that supports a
finding of ‘‘good cause.’’ Pursuant to
section 104(f)(1) of the Act, consistent
with 5 U.S.C. 553(b)(B), and for the
reasons stated above, FEMA therefore
will dispense with prior public notice
and the opportunity to comment on this
rule before finalizing this rule and to
make this interim final rule effective
immediately upon publication.
Based on the discussion above, FEMA
further finds there is good cause, under
5 U.S.C. 553(d)(3), not to require a 30day delayed effective date for this
rulemaking because delaying
implementation of the rule by 30 days
is contrary to the goal of the statutory
requirement to issue an interim final
rule within 45 days after the Act’s
enactment, and delay would further
negatively impact claimants seeking
compensation through the Act. While
05/17/calf-canyon-hermits-peak-fire-new-mexico/
(last accessed Sept. 15, 2022).
21 See New Mexico Forest and Watershed
Restoration Institute, ‘‘Hermit’s Peak and Calf
Canyon Fire: The largest wildfire in New Mexico’s
recorded history and its lasting impacts’’ Aug. 24,
2022 found at https://storymaps.arcgis.com/stories/
d48e2171175f4aa4b5613c2d11875653 (last
accessed Sept. 27, 2022).
22 Id.
23 See Jordan Honeycutt, ‘‘Rain brings flash
flooding to Hermits Peak Calf Canyon burn scar,’’
KRQE, July 13, 2022 found at https://
www.krqe.com/news/new-mexico/rain-brings-flashflooding-to-hermits-peak-calf-canyon-burn-scar/
(last accessed Sept. 27, 2022), and Simon Romero,
‘‘How New Mexico’s Largest Wildfire Set Off a
Drinking Water Crisis,’’ The New York Times, Sept.
26, 2022 found at https://www.nytimes.com/2022/
09/26/us/new-mexico-las-vegas-fire-water.html (last
accessed Sept. 27, 2022).
24 See New Mexico Forest and Watershed
Restoration Institute, ‘‘Hermit’s Peak and Calf
Canyon Fire: The largest wildfire in New Mexico’s
recorded history and its lasting impacts’’ Aug. 24,
2022 found at https://storymaps.arcgis.com/stories/
d48e2171175f4aa4b5613c2d11875653 (last
accessed Sept. 27, 2022).
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FEMA believes the agency has the
statutory authority pursuant to section
104(f)(1) of the Act and 5 U.S.C. 553
(b)(A), 553(b)(B), and 553(d)(3) to issue
the rule without advance notice and
comment and with an immediate
effective date, FEMA is interested in the
views of the public and requests
comment on all aspects of the interim
final rule.
B. Executive Order 12866, Regulatory
Planning and Review and Executive
Order 13563, Improving Regulation and
Regulatory Review
Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 13563 (Improving Regulation and
Regulatory Review) direct agencies to
assess the costs and benefits of available
regulatory alternatives and, if regulation
is necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has been designated a ‘‘significant
regulatory action’’ that is economically
significant, under section 3(f)(1) of
Executive Order 12866. Accordingly,
the rule has been reviewed by the Office
of Management and Budget.
In this rule, FEMA is establishing the
process by which claimants who were
injured as a result of the Fire may apply
for compensation under the Act.
Affected State, local, and Tribal
governments, private sector businesses,
not-for-profit organizations, and
individuals and households will be
eligible to apply for compensation. This
rule will result in costs to claimants for
time to apply for and substantiate a
claim, and for FEMA to process and
adjudicate claims. Claimants will
submit a Notice of Loss to FEMA, meet
with a FEMA Claims Reviewer, obtain
the documentation needed to
substantiate claims, sign a Proof of Loss,
and complete and return a Release and
Certification Form. Additionally,
affected insurance companies can
submit a subrogation notice of loss for
possible compensation under the Act.
Claimants who disagree with FEMA’s
evaluation of the claim may also incur
costs to appeal the determination.
FEMA estimates over 57,000 claimants
will seek compensation under the Act,
totaling between 1.3 and 1.6 million
burden hours over the two-year period,
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depending on if all applicants submit all
forms.25
The rule will result in additional
transfer payments from FEMA to
victims for the settlement of claims for
injuries resulting from the Fire. Injuries
may include property, business and/or
financial losses. Congress appropriated
$2.5 billion to provide for the
expeditious consideration and
settlement of these claims.26 The
maximum total economic impact of this
rule, therefore, is $2.5 billion (assuming
that all funds awarded will be
expended). These funds are for the
settlement of actual compensatory
damages measured by injuries suffered,
FEMA’s administration of the program,
and DHS OIG oversight.27 However,
without knowing the dollar amount of
claims that will be filed for these
injuries, it is impossible to predict the
amount of the economic impact of this
rule with any precision.
The Act requires claims must be
submitted no later than two years after
publication of this interim final rule or
November 14, 2024.28 The Act requires
that FEMA determine and fix the
amount to be paid for a claim within
180 days after a claim is submitted.29
Although the impact of the rule could
be spread over multiple years as claims
are received, processed, and paid, the
total economic effects of a specific
payment would only occur once, rather
than annually.
This rule will provide distributional
benefits to victims of the Fire. FEMA
has provided immediate assistance
under the Robert T. Stafford Disaster
Relief and Emergency Assistance Act to
those eligible for public and individual
assistance pursuant to the President’s
declaration of a major disaster on May
4, 2022. The additional compensation
from the Act will more fully compensate
victims and allow affected State, local
and Tribal governments, businesses,
organizations, and individuals to
rebuild.
C. Regulatory Flexibility Act
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The Regulatory Flexibility Act (RFA)
(5 U.S.C. 605(b)) applies only to rules
for which an agency publishes a general
notice of proposed rulemaking pursuant
to 5 U.S.C. 553(b). As discussed
25 Not all Claimants will submit a Mitigation
Assistance or a Subrogation Notice and Proof of
Loss Form. FEMA estimates that 57,450 applicants
will incur between 22.75 and 27.75 burden hours,
depending on the Forms they submit.
26 Division A of Public Law 117–180, 136 Stat.
2144 (2022).
27 Id.
28 Id.
29 Division G of Public Law 117–180, 136 Stat.
2114 (2022).
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previously, FEMA is not issuing a notice
of proposed rulemaking. Accordingly,
the RFA’s requirements do not apply.
D. Unfunded Mandates Reform Act of
1995
FEMA has not issued a notice of
proposed rulemaking for this regulatory
action; therefore, the written statement
provisions of the Unfunded Mandates
Reform Act of 1995, as amended, do not
apply to this regulatory action.
E. Paperwork Reduction Act of 1995
This rule contains information
collections necessary to support FEMA’s
implementation of the Act. The Notice
of Loss and Proof of Loss forms are a
new collection (OMB Control Number
1660–NW162) submitted under OMB’s
emergency clearance procedures to
allow FEMA to begin accepting claims
immediately after publication of this
interim final rule. Additionally, FEMA
will seek public comments on the
collection through the normal clearance
process.
F. Privacy Act
Under the Privacy Act of 1974, 5
U.S.C. 552a, an agency must determine
whether implementation of a regulation
will result in a system of records. A
‘‘record’’ is any item, collection, or
grouping of information about an
individual that is maintained by an
agency, including, but not limited to,
his/her education, financial
transactions, medical history, and
criminal or employment history and
that contains his/her name, or the
identifying number, symbol, or other
identifying particular assigned to the
individual, such as a finger or voice
print or a photograph. See 5 U.S.C.
552a(a)(4). A ‘‘system of records’’ is a
group of records under the control of an
agency from which information is
retrieved by the name of the individual
or by some identifying number, symbol,
or other identifying particular assigned
to the individual. An agency cannot
disclose any record which is contained
in a system of records except by
following specific procedures.
In accordance with DHS policy,
FEMA has completed a Privacy
Threshold Analysis (PTA) for this rule.
DHS has determined that this
rulemaking does not affect the 1660–
NW162 OMB Control Number’s
compliance with the E-Government Act
of 2002 or the Privacy Act of 1974, as
amended. Specifically, DHS has
concluded that the 1660–NW162 OMB
Control Number is covered by the DHS/
FEMA/PIA–044 National Fire Incident
Reporting Systems (NFIRS) Privacy
Impact Assessment (PIA) and the DHS/
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FEMA/PIA–049 Individual Assistance
(IA) Program PIA. Additionally, DHS
has decided that the 1660–NW162 OMB
Control Number is covered by DHS/
FEMA–008 Disaster Recovery
Assistance Files, 87 FR 7852 (Feb. 10,
2022), DHS/ALL–004 General
Information Technology Access
Account Records System, 77 FR 70792
(Nov. 27, 2012), and DHS/ALL–013
Department of Homeland Security
Claims Records, 73 FR 63987 (Oct. 28,
2008) System of Records Notices
(SORNs).
G. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments,’’ 65 FR 67249, November
9, 2000, applies to agency regulations
that have Tribal implications, that is,
regulations that have substantial direct
effects 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. Under
this Executive Order, to the extent
practicable and permitted by law, no
agency shall promulgate any regulation
that has Tribal implications, that
imposes substantial direct compliance
costs on Indian Tribal governments, and
that is not required by statute, unless
funds necessary to pay the direct costs
incurred by the Indian Tribal
government or the Tribe in complying
with the regulation are provided by the
Federal Government, or the agency
consults with Tribal officials.
FEMA has reviewed this interim final
rule under Executive Order 13175 and
has determined that this interim final
rule may 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. FEMA
will enter into consultation with the
Indian Tribes that have been impacted
by the Fire and whose Tribal entities or
Tribal members have been impacted by
the Fire during the public comment
period of this rulemaking.
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, that is,
regulations that have ‘‘substantial direct
effects on the States, on the relationship
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between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ Federal
agencies must closely examine the
statutory authority supporting any
action that would limit the
policymaking discretion of the States,
and to the extent practicable, must
consult with State and local officials
before implementing any such action.
FEMA has determined that this
rulemaking does not have a substantial
direct effect 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, and therefore does
not have federalism implications as
defined by the Executive Order. FEMA,
however, seeks comment on this
determination from any States that have
been impacted by the Fire and who seek
assistance pursuant to the Act.
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I. National Environmental Policy Act of
1969 (NEPA)
Under the National Environmental
Policy Act of 1969 (NEPA), as amended,
42 U.S.C. 4321 et seq., an agency must
prepare an environmental assessment or
environmental impact statement for any
rulemaking that significantly affects the
quality of the human environment.
FEMA has determined that this
rulemaking does not significantly affect
the quality of the human environment
and consequently has not prepared an
environmental assessment or
environmental impact statement.
Rulemaking is a major Federal action
subject to NEPA. Categorical exclusion
A3 included in the list of exclusion
categories at Department of Homeland
Security Instruction Manual 023–01–
001–01, Revision 01, Implementation of
the National Environmental Policy Act,
Appendix A, issued November 6, 2014,
covers the promulgation of rules,
issuance of rulings or interpretations,
and the development and publication of
policies, orders, directives, notices,
procedures, manuals, and advisory
circulars if they meet certain criteria
provided in A3(a)–(f). This interim final
rule meets Categorical Exclusion A3(a),
‘‘[t]hose of a strictly administrative or
procedural nature,’’ and A3(b), ‘‘[t]hose
that implement, without substantive
change, statutory or regulatory
requirements.’’ FEMA has determined
that there are no extraordinary
circumstances that prevent the use of
this categorical exclusion for this
rulemaking action.
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J. 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 (Feb. 16,
1994), as amended by Executive Order
12948, 60 FR 6381, (Feb. 1, 1995),
FEMA incorporates environmental
justice into its policies and programs.
The Executive Order requires each
Federal agency to conduct its programs,
policies, and activities that substantially
affect human health or the environment
in a manner that ensures that those
programs, policies, and activities do not
have the effect of excluding persons
from participation in programs, denying
persons the benefits of programs, or
subjecting persons to discrimination
because of race, color, or national origin.
This rulemaking would not have a
disproportionately high or adverse effect
on human health or the environment,
nor would it exclude persons from
participation in FEMA programs, deny
persons the benefits of FEMA programs,
or subject persons to discrimination
because of race, color, or national origin.
K. Congressional Review of Agency
Rulemaking
Under the Congressional Review of
Agency Rulemaking Act (CRA), 5 U.S.C.
801–808, before a rule can take effect,
the Federal agency promulgating the
rule must: submit to Congress and to the
Government Accountability Office
(GAO) a copy of the rule; a concise
general statement relating to the rule,
including whether it is a major rule; the
proposed effective date of the rule; a
copy of any cost-benefit analysis;
descriptions of the agency’s actions
under the Regulatory Flexibility Act and
the Unfunded Mandates Reform Act;
and any other information or statements
required by relevant executive orders.
FEMA has submitted this rule to the
Congress and to GAO pursuant to the
CRA. The Office of Management and
Budget has determined that this rule is
‘‘economically significant,’’ but FEMA
believes this rule is not a ‘‘major rule’’
within the meaning of the CRA. FEMA
believes this interim final rule is not
subject to the additional review
requirements under the CRA given the
statutory mandate to issue this interim
final rule within 45 days of the Act’s
enactment under section 104(f) of the
Act. This interim final rule is a
procedural rule and does not confer any
substantive rights, benefits, or
obligations but rather only sets out the
agency’s procedure for how to
voluntarily file a claim under the Act.
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As such, this interim final rule is a ‘‘rule
of agency organization, procedure, or
practice that does not substantially
affect the rights or obligation of nonagency parties’’ pursuant to 5 U.S.C.
804(3)(C). Finally, even if this interim
final rule is considered a ‘‘rule’’ under
the CRA, FEMA finds there is good
cause to dispense with notice and
public comment under 5 U.S.C. 808(2).
Notice and public comment are
impracticable and contrary to public
interest given the Act’s requirement for
the agency to publish an interim final
rule within 45 days of enactment and
the Act’s purpose to provide
expeditious consideration and
settlement of claims for victims of the
Fire as explained above. Therefore,
there is no delay in its effective date
under the CRA.
List of Subjects in 44 CFR Part 296
Administrative practice and
procedure, Claims, Disaster assistance,
Federally affected areas, Indians,
Indians—lands, Indians—Tribal
government, Organization and functions
(Government agencies), Public lands,
Reporting and recordkeeping
requirements, State and local
governments.
For the reasons discussed in the
preamble, the Federal Emergency
Management Agency (FEMA) amends
subchapter E of title 44 of the Code of
Federal Regulations by revising the
subchapter heading and adding part 296
to read as follows:
SUBCHAPTER E—FIRE ASSISTANCE
PART 296—HERMIT’S PEAK/CALF
CANYON FIRE ASSISTANCE
Sec.
Subpart A—General
296.1 Purpose of this part.
296.2 Policy.
296.3 Information and assistance.
296.4 Definitions.
296.5 Overview of the claims process.
296.6–296.9 [Reserved]
Subpart B—Bringing a Claim Under the
Hermit’s Peak/Calf Canyon Fire Assistance
Act
296.10 Filing a claim under the Hermit’s
Peak/Calf Canyon Fire Assistance Act.
296.11 Deadline for notifying FEMA of
injuries.
296.12 Election of remedies.
296.13 Subrogation.
296.14 Assignments.
296.15–296.19 [Reserved]
Subpart C—Compensation Available Under
the Hermit’s Peak/Calf Canyon Fire
Assistance Act
296.20 Prerequisite to compensation.
296.21 Allowable damages.
296.22–296.29 [Reserved]
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Subpart D—Claims Evaluation
296.30 Establishing injuries and damages.
296.31 Reimbursement of claim expenses.
296.32 Determination of compensation due
to claimant.
296.33 Partial payments.
296.34 Supplementing claims.
296.35 Reopening a claim.
296.36 Access to records.
296.37 Confidentiality of information.
296.38–296.39 [Reserved]
Subpart E—Dispute Resolution
296.40 Scope.
296.41 Administrative appeal.
296.42 Arbitration.
296.43 Judicial review.
Authority: Pub. L. 117–180, 136 Stat.
2114, 2168; Homeland Security Act of 2002,
6 U.S.C. 101 et seq.
Subpart A—General
§ 296.1
Purpose.
This part implements the Hermit’s
Peak/Calf Canyon Fire Assistance Act
(Act), Division G of Public Law 117–
180, 136 Stat. 2114, 2168, which
requires the Federal Emergency
Management Agency (FEMA) to
establish the Office of Hermit’s Peak/
Calf Canyon Fire Claims (‘‘Claims
Office’’) to receive, evaluate, process,
and pay actual compensatory damages
for injuries suffered from the Hermit’s
Peak/Calf Canyon Fire.
§ 296.2
Policy.
It is our policy to provide for the
expeditious resolution of damage claims
through a process that is administered
with sensitivity to the burdens placed
upon claimants by the Hermit’s Peak/
Calf Canyon Fire.
§ 296.3
Information and assistance.
Information and assistance
concerning the Act is available from the
Claims Office, Federal Emergency
Management Agency online at http://
www.fema.gov/hermits-peak.
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§ 296.4
Definitions.
Administrative Appeal means an
appeal of the Authorized Official’s
Determination to the Director of the
Claims Office in accordance with the
provisions of Subpart E of this part.
Administrative Record means all
information submitted by the claimant
and all information collected by FEMA
concerning the claim, which is used to
evaluate the claim and to formulate the
Authorized Official’s Determination. It
also means all information that is
submitted by the claimant or FEMA in
an Administrative Appeal and the
decision of the Administrative Appeal.
It excludes the opinions, memoranda
and work papers of FEMA attorneys and
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drafts of documents prepared by Claims
Office personnel and contractors.
Administrator means the
Administrator of the Federal Emergency
Management Agency.
Arbitration Administrator means the
FEMA official responsible for
administering arbitration procedures to
resolve disputes regarding a claim.
Contact information for the Arbitration
Administrator can be found online at
http://www.fema.gov/hermits-peak.
Authorized Official means an
employee of the United States who is
delegated with authority by the Director
of the Claims Office to render binding
determinations on claims and to
determine compensation due to
claimants under the Act.
Authorized Official’s Determination
means a report signed by an Authorized
Official and mailed to the claimant
evaluating each element of the claim as
stated in the Proof of Loss and
determining the compensation, if any,
due to the claimant.
Claimant means a person who has
filed a Notice of Loss under the Act.
Claims Office means the Office of
Hermit’s Peak/Calf Canyon Fire Claims.
Claims Reviewer means an employee
of the United States or a Claims Office
contractor or subcontractor who is
authorized by the Director of the Claims
Office to review and evaluate claims
submitted under the Act.
Days means calendar days, including
weekends and holidays.
Director means an Independent
Claims Manager appointed by the
Administrator who will serve as the
Director of the Claims Office.
Good Cause, for purposes of
extending the deadline for filing,
supplementing a claim, or reopening a
claim includes, but is not limited to:
instances where a claimant, through no
fault of their own, may not be able to
access needed documentation in time to
submit a claim or transmit relevant
information or data; or where damage is
found after a claim has been submitted;
or other instances in which the Director
of the Claims Office, in their discretion,
determines that an undue hardship or
change in circumstances on the
claimant warrants an extension of a
deadline or the supplementation or
reopening of existing claims.
Hermit’s Peak/Calf Canyon Fire
means
(1) The fire resulting from the
initiation by the U.S. Forest Service of
a prescribed burn in the Santa Fe
National Forest in San Miguel County,
New Mexico on April 6, 2022;
(2) The pile burn holdover resulting
from the prescribed burn by the U.S.
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Forest Services which reemerged on
April 19, 2022; and
(3) The merger of the two fires
described in paragraphs (1) and (2) of
this definition, reported as the Hermit’s
Peak Fire or the Hermit’s Peak Fire/Calf
Canyon Fire.
Household means a group of people,
related or unrelated, who live together
on a continuous basis and does not
include members of an extended family
who do not regularly and continuously
cohabit.
Household Including Tribal Members
means a Household that existed on
April 6, 2022, which included one or
more Tribal Members as continuous
residents.
Indian Tribe means the recognized
governing body of any Indian or Alaska
Native Tribe, band, nation, pueblo,
village, community, component band, or
components reservation individually
identified (including parenthetically) in
the list published most recently as of
September 30, 2022, pursuant to section
104 of the Federally Recognized Indian
Tribe List Act of 1994.
Individual Assistance means the
FEMA program established under
Subchapter IV of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act, as amended, 42 U.S.C.
5121, et seq., which provides assistance
to individuals and families adversely
affected by a major disaster or an
emergency.
Injured Person means an individual,
regardless of citizenship or alien status;
or an Indian Tribe, Tribal corporation,
corporation, partnership, company,
association, county, township, city,
State, school district, or other nonFederal entity that suffered injury
resulting from the Hermit’s Peak/Calf
Canyon Fire. The term Injured Person
includes an Indian Tribe with respect to
any claim relating to property or natural
resources held in trust for the Indian
Tribe by the United States. Lenders
holding mortgages or security interests
on property affected by the Hermit’s
Peak/Calf Canyon Fire and lien holders
are not an ‘‘Injured Person’’ for purposes
of the Act.
Injury means ‘‘injury or loss of
property, or personal injury or death,’’
as used in the Federal Tort Claims Act,
28 U.S.C. 1346(b)(1).
Notice of Loss means a form supplied
by the Claims Office through which an
Injured Person or Subrogee makes a
claim for possible compensation under
the Act.
Proof of Loss means a statement
attesting to the nature and extent of the
claimant’s injuries.
Public Assistance Program means the
FEMA program established under
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Subchapter IV of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act, as amended, 42 U.S.C.
5121, et seq., which provides grants to
States, local governments, Indian Tribes
and private nonprofit organizations for
emergency measures and repair,
restoration, and replacement of
damaged facilities.
Release and Certification Form means
a document in the manner prescribed by
section 104(e) of the Act that all
claimants who have received or are
awarded compensatory damages under
the Act must execute and return to the
Claims Office as required by § 296.30(c).
Subsistence Resources means food
and other items obtained through
hunting, fishing, firewood gathering,
timbering, grazing or agricultural
activities undertaken by the claimant
without financial remuneration, on land
damaged by the Hermit’s Peak/Calf
Canyon Fire.
Subrogee means an insurer or other
third party that has paid to a claimant
compensation for Injury and is
subrogated to any right that the claimant
has to receive payment under the Act.
Tribal Member means an enrolled
member of an Indian Tribe.
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§ 296.5
Overview of the claims process.
(a) The Act is intended to provide
persons who suffered Injury from the
Hermit’s Peak/Calf Canyon Fire with a
simple, expedited process to seek
compensation from the United States.
This section provides a brief
explanation of the claims process for
claims other than subrogation claims. It
is not intended to supersede the more
specific regulations that follow and
explain the claims process in greater
detail. To obtain compensation under
the Act, an Injured Person must submit
all Hermit’s Peak/Calf Canyon Fire
related claims against the United States
or any employee, officer, or agency of
the United States to the FEMA Claims
Office. An Injured Person who elects to
accept an award under the Act is barred
from accepting an award pursuant to a
claim under the Federal Tort Claims Act
or a civil action against the United
States or any employee, officer, or
agency of the United States arising out
of or relating to the same subject matter.
Judicial review of FEMA decisions
under the Act is available.
(b) The first step in the process is to
file a Notice of Loss with the Claims
Office. The Claims Office will provide
the claimant with a written
acknowledgement that the claim has
been filed and a claim number.
(c) Shortly thereafter, a Claims
Reviewer will contact the claimant to
review the claim. Claims Reviewer will
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help the claimant formulate a strategy
for obtaining any necessary
documentation or other support. This
assistance does not relieve the claimant
of their responsibility for establishing
all elements of the injuries and the
compensatory damages that are sought,
including that the Hermit’s Peak/Calf
Canyon Fire caused the injuries. After
the claimant has had an opportunity to
discuss the claim with the Claims
Reviewer, a Proof of Loss will be
presented to the claimant for signature.
After any necessary documentation has
been obtained and the claim has been
fully evaluated, the Claims Reviewer
will submit a report to the Authorized
Official. The Claims Reviewer is
responsible for providing an objective
evaluation of the claim to the
Authorized Official.
(d) The Authorized Official will
review the report and determine
whether compensation is due to the
claimant. The claimant will be notified
in writing of the Authorized Official’s
determination. If the claimant is
satisfied with the decision, payment
will be made after the claimant returns
a completed Release and Certification
Form. If the claimant is dissatisfied with
the Authorized Official’s determination,
an administrative appeal may be filed
with the Director of the Claims Office.
If the claimant remains dissatisfied after
the appeal is decided, the dispute may
be resolved through binding arbitration
or heard in the United States District
Court for the District of New Mexico.
Subpart B—Bringing a Claim Under the
Hermit’s Peak/Calf Canyon Fire
Assistance Act
§ 296.10 Filing a claim under the Hermit’s
Peak/Calf Canyon Fire Assistance Act.
(a) Any Injured Person may bring a
claim under the Act by filing a Notice
of Loss. A claim submitted on any form
other than a Notice of Loss will not be
accepted. The claimant must provide a
brief description of each injury on the
Notice of Loss.
(b) A single Notice of Loss may be
submitted on behalf of a household
containing Injured Persons provided
that all Injured Persons on whose behalf
the claim is presented are identified.
(c) The Notice of Loss must be signed
by each claimant, if the claimant is an
individual, or by a duly authorized legal
representative of each claimant, if the
claimant is an entity or an individual
who lacks the legal capacity to sign the
Notice of Loss. If one is signing a Notice
of Loss as the legal representative of a
claimant, the signer must disclose their
relationship to the claimant. FEMA may
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require a legal representative to submit
evidence of their authority to act.
(d) The Claims Office will provide
Notice of Loss forms through the mail,
electronically, in person at the Claims
Office or by telephone request. The
Notice of Loss form can also be
downloaded from the internet at http://
www.fema.gov/hermits-peak.
(e) A Notice of Loss may be filed with
the Claims Office by mail,
electronically, or in person. Details
regarding the filing process can be
found at http://www.fema.gov/hermitspeak.
(f) A Notice of Loss that is completed
and properly signed is deemed to be
filed on the date it is received and
acknowledged by the Claims Office.
§ 296.11 Deadline for notifying FEMA of
injuries.
The deadline for filing a Notice of
Loss is November 14, 2024. Except as
provided in § 296.35 with respect to a
request to reopen a claim, an injury that
has not been described: on a Notice of
Loss, on a supplement to a Notice of
Loss or a request to supplement a Notice
of Loss under § 296.34 received by the
Claims Office on or before November 14,
2024 cannot be compensated under the
Act. The Act establishes this deadline
and does not provide any extensions of
the filing deadline.
§ 296.12
Election of remedies.
(a) An Injured Person who accepts an
award under the Act waives the right to
pursue all claims for injuries arising out
of or relating to the same subject matter
against the United States or any
employee, officer, or agency of the
United States through the Federal Tort
Claims Act or a civil action authorized
by any other provision of law.
(b) An Injured Person who accepts an
award through a Federal Tort Claims
Act claim or a civil action against the
United States or any employee, officer,
or agency of the United States relating
to the Hermit’s Peak/Calf Canyon Fire
waives the right to pursue any claim
arising out of or relating to the same
subject matter under the Act.
§ 296.13
Subrogation.
An insurer or other third party with
the rights of a subrogee, who has
compensated an injured person for
Hermit’s Peak/Calf Canyon Fire related
injuries, may file a Notice of Loss under
the Act for the subrogated claim. A
subrogee may file a Notice of Loss
without regard to whether the Injured
Person who received payment from the
subrogee filed a Notice of Loss. A
Subrogation Notice of Loss should be
filed after the subrogee has made all
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payments that it believes the Injured
Person is entitled to receive for Hermit’s
Peak/Calf Canyon Fire related injuries
under the terms of the insurance policy
or other agreement between the
subrogee and the Injured Person, but not
later than November 14, 2024. By filing
a Notice of Loss for any subrogated
claim, the subrogee elects the Act as its
exclusive remedy against the United
States or any employee, officer, or
agency of the United States for all
subrogated claims arising out of the
Hermit’s Peak/Calf Canyon Fire.
Subrogation claims must be made on a
Notice of Loss form furnished by the
Claims Office.
§ 296.14
Assignments.
Assignment of claims and the right to
receive compensation for claims under
the Act is prohibited and will not be
recognized by FEMA.
Subpart C—Compensation Available
Under the Hermit’s Peak/Calf Canyon
Fire Assistance Act
§ 296.20
Prerequisite to compensation.
In order to receive compensation
under the Act, a claimant must be an
Injured Person who suffered an injury as
a result of the Hermit’s Peak/Calf
Canyon Fire and sustained damages.
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§ 296.21
Allowable damages.
(a) Allowable damages. The Act
provides for the payment of actual
compensatory damages for Injury or loss
of property, business loss, and financial
loss. The laws of the State of New
Mexico will apply to the calculation of
damages. Damages must be reasonable
in amount.
(b) Exclusions. Punitive damages,
statutory damages under section 30–32–
4 of the New Mexico Statutes Annotated
(2019), interest on claims, attorney’s
fees and agents’ fees incurred in
prosecuting a claim under the Act or an
insurance policy, and adjusting costs
incurred by an insurer or other third
party with the rights of a subrogee that
may be owed by a claimant as a
consequence of receiving an award are
not recoverable from FEMA. The cost to
a claimant of prosecuting a claim under
the Act does not constitute
compensatory damages and is not
recoverable from FEMA, except as
provided in § 296.31(b).
(c) Loss of property. Compensatory
damages may be awarded for an
uninsured or underinsured property
loss, a decrease in the value of real
property, damage to physical
infrastructure, cost resulting from lost
subsistence, cost of reforestation or
revegetation not covered by any other
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Federal program, and any other loss that
the Administrator determines to be
appropriate for inclusion as a loss of
property.
(1) Real property and contents.
Compensatory damages for the damage
or destruction of real property and its
contents may include the reasonable
cost of reconstruction of a structure
comparable in design, construction
materials, size, and improvements,
taking into account post-fire
construction costs in the community in
which the structure existed before the
fire and current building codes and
standards. Compensatory damages may
also include the cost of removing debris
and burned trees, including hazardous
materials or soils, stabilizing the land,
replacing contents, and compensation
for any decrease in the value of land on
which the structure sat pursuant to
paragraph (c)(3) of this section.
(2) Reforestation and revegetation.
Compensation for the replacement of
destroyed trees and other landscaping
will not exceed 25 percent of the prefire value of the structure and lot.
(3) Decrease in the value of real
property. Compensatory damages may
be awarded for a decrease in the value
of real property that a claimant owned
before the Hermit’s Peak/Calf Canyon
Fire if:
(i) The claimant sells the real property
in a good faith, arm’s length transaction
that is closed no later than November
14, 2024 and realizes a loss in the prefire value; or
(ii) The claimant can establish that the
value of the real property was
permanently diminished as a result of
the Hermit’s Peak/Calf Canyon Fire.
(4) Subsistence. Compensatory
damages will be awarded for lost
Subsistence Resources.
(i) FEMA may reimburse an injured
party for the reasonable cost of replacing
Subsistence Resources customarily and
traditionally used by the claimant on or
before April 6, 2022, but no longer
available to the claimant as a result of
the Hermit’s Peak/Calf Canyon Fire. For
each category of Subsistence Resources,
the claimant must elect to receive
compensatory damages either for the
increased cost of obtaining Subsistence
Resources from lands not damaged by
the Hermit’s Peak/Calf Canyon Fire or
for the cost of procuring substitute
resources in the cash economy.
(ii) FEMA may consider evidence
submitted by claimants, Indian Tribes,
and other knowledgeable sources in
determining the nature and extent of a
claimant’s subsistence uses.
(iii) Compensatory damages for
subsistence losses will be paid for the
period between April 6, 2022 and the
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date when Subsistence Resources can
reasonably be expected to return to the
level of availability that existed before
the Hermit’s Peak/Calf Canyon Fire.
FEMA may rely upon the advice of
experts in making this determination.
(iv) Long-term damage awards for
subsistence resources will be made to
claimants in the form of lump sum cash
payments.
(d) Business loss. Compensatory
damages may be awarded for damage to
tangible assets or inventory, including
timber, crops, and other natural
resources; business interruption losses;
overhead costs; employee wages for
work not performed; loss of business net
income; and any other loss that the
Administrator determines to be
appropriate for inclusion as a business
loss.
(e) Financial loss. Compensatory
damages may be awarded for increased
mortgage interest costs, insurance
deductibles, temporary living or
relocation expenses, lost wages or
personal income, emergency staffing
expenses, debris removal and other
cleanup costs, costs of reasonable
heightened risk reduction, premiums for
flood insurance, and any other loss that
the Administrator determines to be
appropriate for inclusion as financial
loss.
(1) Recovery loans. FEMA will
reimburse claimants awarded
compensation under the Act for interest
paid on loans, including Small Business
Administration disaster loans obtained
after April 6, 2022 for damages resulting
from the Fire. Interest will be
reimbursed for the period beginning on
the date that the loan was taken out and
ending on the date when the claimant
receives a compensation award (other
than a partial payment). Claimants are
required to use the proceeds of their
compensation award to repay Small
Business Administration disaster loans.
FEMA will cooperate with the Small
Business Administration to formulate
procedures for assuring that claimants
repay Small Business Administration
disaster loans contemporaneously with
the receipt of their compensation award.
(2) Flood insurance. FEMA will
reimburse claimants for flood insurance
premiums to be paid on or before May
31, 2024 if, as a result of the Hermit’s
Peak/Calf Canyon Fire, a claimant who
was not required to purchase flood
insurance before the Hermit’s Peak/Calf
Canyon Fire is required to purchase
flood insurance or the claimant did not
maintain flood insurance before the Fire
but purchased flood insurance after the
Fire due to fear of heightened flood risk.
Alternatively, FEMA may provide flood
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insurance to such claimants directly
through a group or blanket policy.
(3) Out of pocket expenses for
treatment of mental health conditions.
FEMA may reimburse an individual
claimant for reasonable out of pocket
expenses incurred for treatment of a
mental health condition rendered by a
licensed mental health professional,
which condition resulted from the
Hermit’s Peak/Calf Canyon Fire. FEMA
will not reimburse for treatment
rendered after April 6, 2024.
(4) Donations. FEMA will compensate
claimants for the cost of merchandise,
use of equipment or other non-personal
services, directly or indirectly donated
to survivors of the Hermit’s Peak/Calf
Canyon Fire not later than September
20, 2022. Donations will be valued at
cost.
(5) Heightened Risk Reduction. FEMA
will reimburse claimants for the costs
incurred to implement reasonable
measures necessary to reduce risks from
natural hazards heightened by the
Hermit’s Peak/Calf Canyon Fire to the
level of risk prevailing before the
Hermit’s Peak/Calf Canyon Fire. Such
measures may include, for example, risk
reduction projects that reduce an
increased risk from flooding, mudslides,
and landslides in and around burn
scars. Compensation under this section
may not exceed 25 percent of the higher
of payments from all sources (i.e., the
Act, insurance proceeds, FEMA
assistance under the Stafford Act) for
damage to the structure and lot, or the
pre-fire value of the structure and lot.
Claimants seeking compensation for
heightened risk reduction must include
the claim in their Notice of Loss by
November 14, 2024 or an amended
Notice of Loss filed no later than
November 14, 2025. Claimants should
take into account current building codes
and standards and must complete the
risk reduction project for which they
receive compensation.
(f) Insurance and other benefits. The
Act allows FEMA to compensate Injured
Persons only for damages not paid, or
will not be paid, by insurance or other
third-party payments or settlements.
(1) Insurance. Claimants who carry
insurance will be required to disclose
the name of the insurer(s) and the
nature of the insurance and provide the
Claims Office with such insurance
documentation as the Claims Office
reasonably requests.
(2) Coordination with FEMA’s Public
Assistance Program. Injured Persons
eligible for disaster assistance under
FEMA’s Public Assistance Program are
expected to apply for all available
assistance. Pursuant to the Act, the
Federal share of the costs for Public
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17:07 Nov 10, 2022
Jkt 259001
Assistance projects is 100 percent.
Compensation will not be awarded
under the Act for injuries or costs that
are eligible under the Public Assistance
Program.
(3) Benefits provided by FEMA’s
Individual Assistance program.
Compensation under the Act will not be
awarded for injuries or costs that have
been reimbursed under the Federal
Assistance to Individual and
Households Program or any other FEMA
Individual Assistance Program.
(4) Worker’s compensation claims.
Individuals who have suffered injuries
that are compensable under State or
Federal worker’s compensation laws
must apply for all benefits available
under such laws.
(5) Benefits provided by nongovernmental organizations and
individuals. Gifts or donations made to
a claimant by a non-governmental
organization or an individual, other
than wages paid by the claimant’s
employer or insurance payments, will
be disregarded in evaluating claims and
need not be disclosed to the Claims
Office by claimants.
Subpart D—Claims Evaluation
§ 296.30 Establishing injuries and
damages.
(a) Burden of proof. The burden of
proving injuries and damages rests with
the claimant. A claimant may submit for
the Administrative Record a statement
explaining why the claimant believes
that the injuries and damages are
compensable and any documentary
evidence supporting the claim.
Claimants will provide documentation,
which is reasonably available, including
photographs and video, to corroborate
the nature, extent, and value of their
injuries and/or to execute affidavits in a
form established by the Claims Office.
FEMA may compensate a claimant for
an injury in the absence of supporting
documentation, in its discretion, on the
strength of an affidavit or Proof of Loss
executed by the claimant, if
documentary evidence substantiating
the injury is not reasonably available.
FEMA may also require an inspection of
real property. FEMA may request that a
business claimant execute an affidavit,
which states that the claimant will
provide documentary evidence,
including but not limited to income tax
returns, if requested by the DHS Office
of the Inspector General or the
Government Accountability Office
during an audit of the claim.
(b) Proof of Loss. All claimants are
required to attest to the nature and
extent of each injury for which
compensation is sought in the Proof of
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68101
Loss. The Proof of Loss, which will be
in a form specified by the Claims Office,
must be signed by the claimant or the
claimant’s legal representative if the
claimant is not an individual or is an
individual who lacks the legal capacity
to execute the Proof of Loss. The Proof
of Loss must be signed under penalty of
perjury. Non-subrogation claimants
should submit a signed Proof of Loss to
the Claims Office not later than 150
days after the date when the Notice of
Loss was submitted. This deadline may
be extended at the discretion of the
Director of the Claims Office for good
cause. If a non-subrogation claimant
fails to submit a signed Proof of Loss
within the timeframes set forth in this
section and does not obtain an
extension from the Director of the
Claims Office, the Claims Office may
administratively close the claim and
require the claimant to repay any partial
payments made on the claim.
Subrogation claimants will submit the
Proof of Loss contemporaneously with
filing the Notice of Loss.
(c) Release and Certification Form. All
claimants who receive compensation
under the Act are required to sign a
Release and Certification Form,
including for partial payments under
§ 296.33. The Release and Certification
Form must be executed by the claimant
or the claimant’s legal representative if
the claimant is an entity or lacks the
legal capacity to execute the Release and
Certification Form. A Release and
Certification Form must be received by
the Claims Office before the Claims
Office provides payment on the claim.
The United States will not attempt to
recover compensatory damages paid to
a claimant who has executed and
returned a Release and Certification
Form within the periods provided
above, except in the case of fraud or
misrepresentation by the claimant or the
claimant’s representative, failure of the
claimant to cooperate with an audit as
required by § 296.36 or a material
mistake by FEMA.
(d) Authority to settle or compromise
claims. Notwithstanding any other
provision of this part, the Director of the
Claims Office may extend an offer to
settle or compromise a claim or any
portion of a claim at any time during the
process outlined in this part, which if
accepted by the claimant will be
binding on the claimant and on the
United States, except that the United
States may recover funds improperly
paid to a claimant due to fraud or
misrepresentation on the part of the
claimant or the claimant’s
representative, a material mistake on
FEMA’s part or the claimant’s failure to
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cooperate in an audit as required by
§ 296.36.
§ 296.31 Reimbursement of claim
expenses.
(a) FEMA will reimburse claimants for
the reasonable costs they incur in
providing documentation requested by
the Claims Office. FEMA will also
reimburse claimants for the reasonable
costs they incur in providing appraisals,
or other third-party opinions, requested
by the Claims Office. FEMA will not
reimburse claimants for the cost of
appraisals or other third-party opinions
not requested by the Claims Office.
(b) FEMA will provide a lump sum
payment for incidental expenses
incurred in claims preparation to
claimants that are awarded
compensatory damages under the Act
after a properly executed Release and
Certification Form has been returned to
the Claims Office. The amount of the
lump sum payment will be the greater
of $150 or 5% of the Act’s compensatory
damages and insurance proceeds
recovered by the claimant for Hermit’s
Peak/Calf Canyon Fire related injuries
(not including the lump sum payment
or monies reimbursed under the Act for
the purchase of flood insurance) but
will not exceed $25,000. Subrogation
claimants and claimants whose only
Hermit’s Peak/Calf Canyon Fire related
loss is for flood insurance premiums
will not be eligible.
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§ 296.32 Determination of compensation
due to claimant.
(a) Authorized Official’s report. After
the Claims Office has evaluated all
elements of a claim as stated in the
Proof of Loss, the Authorized Official
will issue, and provide the claimant
with a copy of, the Authorized Official’s
determination.
(b) Claimant’s options upon issuance
of the Authorized Official’s
determination. Not later than 120 days
after the date that appears on the
Authorized Official’s determination, the
claimant must either accept the
determination by submitting a Release
and Certification Form to FEMA and/or
initiate an Administrative Appeal in
accordance with § 296.41. Claimants
must sign the Release and Certification
Form to receive payment on their claims
(including for partial payments). The
claimant will receive payment of
compensation awarded by the
Authorized Official after FEMA receives
the completed Release and Certification
Form. If the claimant does not either
submit a Release and Certification Form
to FEMA or initiate an Administrative
Appeal no later than 120 days after the
date that appears on the Authorized
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Official’s determination, the claimant
will be conclusively presumed to have
accepted the Authorized Official’s
determination. The Director of the
Claims Office may modify the deadlines
set forth in this subsection at the request
of a claimant for good cause shown.
§ 296.21(c)(3); the claimant has incurred
additional losses under § 296.21(c)(1) as
part of a reconstruction in excess of
those previously awarded; or the
Director of the Claims Office otherwise
determines that claimant has
demonstrated good cause.
§ 296.33
§ 296.36
Partial payments.
The Claims Office at the request of a
claimant may make one or more partial
payments on any aspect of a claim that
is severable. Receipt by a claimant of a
partial payment is contingent on the
claimant signing a Release and
Certification Form for the severable part
of the claim for which partial payment
is being made. Acceptance of a partial
payment in no way affects a claimant’s
ability to pursue an Administrative
Appeal of the Authorized Official’s
determination or to pursue other rights
afforded by the Act with respect to any
portion of a claim for which a Release
and Certification Form has not been
executed. The Claims Office decision on
whether to provide a partial payment
cannot be appealed.
§ 296.34
Supplementing claims.
A claimant may amend the Notice of
Loss to include additional claims at any
time before signing a Proof of Loss. After
the claimant has submitted a Proof of
Loss and before submission of a Release
and Certification Form, a claimant may
request that the Director of the Claims
Office consider one or more injuries not
addressed in the Proof of Loss. The
request must be submitted in writing to
the Director of the Claims Office and
received not later than the deadline for
filing an Administrative Appeal under
§ 296.32 or November 14, 2024,
whichever is earlier. It must be
supported by the claimant’s explanation
of why the injury was not previously
reported. If good cause is found to
consider the additional injury, the
Director will determine whether
compensation is due to the claimant for
the Loss under the Administrative
Appeal procedures described in
§ 296.41.
§ 296.35
Reopening a claim.
The Director of the Claims Office may
reopen a claim if requested to do so by
the claimant, notwithstanding the
submission of the Release and
Certification Form, for the limited
purpose of considering issues raised by
the request to reopen if, not later than
November 14, 2025, the claimant desires
heightened risk reduction compensation
in accordance with § 296.21(e)(5); the
claimant closed the sale of a home and
wishes to present a claim for decrease
in the value of the real property under
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Access to records.
For purpose of audit and
investigation, a claimant will grant the
DHS Office of the Inspector General and
the Comptroller General of the United
States access to any property that is the
subject of a claim and to any and all
books, documents, papers, and records
(including any relevant tax records)
maintained by a claimant or under the
claimant’s control pertaining or relevant
to the claim.
§ 296.37
Confidentiality of information.
Confidential information submitted
by individual claimants is protected
from disclosure to the extent permitted
by the Privacy Act. These protections
are described in the Privacy Act Notice
provided with the Notice of Loss. Other
claimants should consult with FEMA
concerning the availability of
confidentiality protection under
exemptions to the Freedom of
Information Act and other applicable
laws before submitting confidential,
proprietary or trade secret information.
Subpart E—Dispute Resolution
§ 296.40
Scope.
This subpart describes a claimant’s
right to bring an Administrative Appeal
in response to the Authorized Official’s
Determination. It also describes the
claimant’s right to pursue arbitration or
seek judicial review following an
Administrative Appeal.
§ 296.41
Administrative appeal.
(a) Notice of appeal. A claimant may
request that the Director of the Claims
Office review the Authorized Official’s
determination by written request to the
Appeals Docket, Office of Hermit’s
Peak/Calf Canyon Claims, postmarked
or delivered within 120 days after the
date that appears on the Authorized
Official’s determination pursuant to
§ 296.32. The claimant will submit
along with the notice of appeal a
statement explaining why the
Authorized Official’s determination was
incorrect. Information regarding where
to file can be found at http://
www.fema.gov/hermits-peak.
(b) Acknowledgement of appeal. The
Claims Office will acknowledge receipt
of an appeal. Following the receipt of a
timely filed appeal, the Director of the
Claims Office will obtain the
Administrative Record from the
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Authorized Official and transmit a copy
to the claimant.
(c) Supplemental filings. The claimant
may supplement their statement
accompanying the appeal and provide
any additional documentary evidence
supporting the appeal within 60 days
after the date when the appeal is filed.
The Director of the Claims Office may
extend these timeframes or authorize
additional filings either on their own
initiative or in response to a request by
the claimant for good cause shown.
(d) Admissible evidence. The claimant
may rely upon any relevant evidence to
support the appeal, regardless of
whether the evidence was previously
submitted to the Claims Reviewer for
consideration by the Authorized
Official.
(e) Obtaining evidence. The Director
of the Claims Office may request from
the claimant or from the Authorized
Official any additional information that
is relevant to the issues posed by the
appeal in their discretion.
(f) Conferences. The Director of the
Claims Office may schedule a
conference to gain a better
understanding of the issues or to
explore settlement or compromise
possibilities. The claimant may also
request a conference. Conferences will
generally be conducted virtually. In
limited circumstances, the Director may
convene an in-person conference at a
location in New Mexico designated by
the Director. A claimant may request
that the Director of the Claims Office
appoint a mediator at FEMA’s expense
to facilitate such conferences.
(g) Hearings. The Director of the
Claims Office may exercise the
discretion to convene an informal
hearing to receive oral testimony from
witnesses or experts. The rules under
which hearings will be conducted will
be established by the Director of the
Claims Office and provided to the
claimant. Formal rules of evidence
applicable to court proceedings will not
be used in hearings under this
subsection. Hearings will generally be
conducted virtually, be transcribed, and
the transcript will be entered in the
Administrative Record. In limited
circumstances, the Director may
convene an in-person hearing at a
location in New Mexico designated by
the Director.
(h) Decision on appeal. After the
allotted time for submission of evidence
has passed, the Director of the Claims
Office will close the Administrative
Record and render a written decision on
the Administrative Appeal. The Director
of the Claims Office’s decision on the
Administrative Appeal will constitute
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the final decision of the Administrator
of FEMA under sections 104(d)(2)(B)
and 104(i)(1) of the Act.
(i) Claimant’s options following
appeal. The claimant’s concurrence
with the decision in the Administrative
Appeal will be conclusively presumed
unless the claimant initiates arbitration
in accordance with § 296.42 or seeks
judicial review in accordance with
§ 296.43. If the claimant concurs with
the Director’s determination, payment of
any additional damages awarded by the
Director will be made to the claimant
upon receipt of a properly executed
Release and Certification Form.
§ 296.42
Arbitration.
(a) Initiating arbitration. A claimant
who is dissatisfied with the outcome of
the Administrative Appeal may elect to
submit the dispute to a binding
arbitration process. A claimant may
initiate arbitration by submitting a
written request to the Arbitration
Administrator for Hermit’s Peak/Calf
Canyon Claims. Additional information
regarding how to submit a written
arbitration request can be found at
http://www.fema.gov/hermits-peak. The
written request for arbitration must be
electronically stamped or postmarked
no later than 60 days after the date that
appears on the Administrative Appeal
decision.
(b) Permissible claims. A claimant
may not arbitrate an issue unless it was
raised and decided in the
Administrative Appeal. Arbitration will
be conducted on the evidence in the
Administrative Record. Evidence not
previously entered into the
Administrative Record will not be
considered.
(c) Selection of arbitrator. The
Arbitration Administrator will maintain
a list of qualified arbitrators who have
agreed to serve. The arbitration will be
decided by one arbitrator if the amount
in dispute is $500,000 or less and a
panel of three arbitrators if the amount
in dispute exceeds $500,000. Arbitrators
will be assigned by the Arbitration
Administrator through a random
drawing.
(d) Conduct of arbitration. Pursuant to
guidelines from the Arbitration
Administrator, which will be provided
directly to claimants who have filed a
request for arbitration, the arbitration
process will include an arbitration
hearing with consideration of the
claimant’s written request for
arbitration, the Administrative Record,
and oral testimony. Hearings will
generally be conducted virtually. In
limited circumstances, the arbitrator
may convene an in-person hearing at a
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68103
location in New Mexico designated by
the Arbitration Administrator.
(e) Decision. After a hearing and
reviewing the evidence, the arbitrator(s)
will render a written decision and will
transmit the decision to the Arbitration
Administrator, the claimant, and the
Director of the Claims Office. If a panel
of three arbitrators conducts the
arbitration, at least two of the three
arbitrators must sign the decision. The
arbitrator(s) should render a decision no
later than 10 Days after a hearing is
concluded. The Arbitration
Administrator may extend the time for
a decision with notice to the claimant
and the Director of the Claims Office.
The decision will establish the
compensation due to the claimant, if
any, and the reasons therefor.
(f) Action on arbitration decision. The
Arbitration Administrator will forward
the arbitration decision to the claimant
and, if additional compensation is
awarded to the claimant, a Release and
Certification Form. Additional
compensation awarded in the
arbitration will be paid to the claimant
after the signed Release and
Certification Form is received by the
Arbitration Administrator.
(g) Final decision. The decision of the
arbitrator(s) will be final and binding on
all parties and will not be subject to any
administrative or judicial review. The
arbitrator(s) may correct clerical,
typographical or computational errors as
requested by the Arbitration
Administrator.
(h) Administration of arbitration. The
Arbitration Administrator oversees
arbitration procedures and will resolve
any procedural disputes arising in the
course of the arbitration.
(i) Expenses. The Arbitration
Administrator will pay all fees and
expenses of the arbitrator(s). The
claimant is responsible for any expenses
they incur, including travel costs.
§ 296.43
Judicial review.
As an alternative to arbitration, a
claimant dissatisfied with the outcome
of an Administrative Appeal may seek
judicial review of the decision by
bringing a civil lawsuit against FEMA in
the United States District Court for the
District of New Mexico. This lawsuit
must be brought within 60 Days of the
date that appears on the Administrative
Appeal decision. Pursuant to section
104(i) of the Act, the court may only
consider evidence in the Administrative
Record. The court will uphold FEMA’s
decision if it is supported by substantial
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evidence on the record considered as a
whole.
Deanne Criswell,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2022–24728 Filed 11–10–22; 8:45 am]
BILLING CODE 9111–68–P
Framework)) are available from the
Atlantic HMS Management Division
website at https://
www.fisheries.noaa.gov/topic/atlantichighly-migratory-species or by
contacting Ann Williamson at
[email protected] or 301–427–
8503.
Ann
Williamson ([email protected]),
Guy DuBeck ([email protected]), or
Karyl Brewster-Geisz ([email protected]) at 301–427–8503.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
Background
[Docket No. 221107–0236; RTID 0648–
XC082]
Atlantic Highly Migratory Species;
2023 Atlantic Shark Commercial
Fishing Year
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This final rule adjusts the
quotas and retention limits and
establishes the opening date for the
2023 fishing year for the Atlantic
commercial shark fisheries. Quotas are
adjusted as required or allowable based
on underharvests from the 2022 fishing
year. NMFS establishes the opening date
and commercial retention limits to
provide, to the extent practicable,
fishing opportunities for commercial
shark fishermen in all regions and areas.
The final measures could affect fishing
opportunities for commercial shark
fishermen in the northwestern Atlantic
Ocean, Gulf of Mexico, and Caribbean
Sea.
DATES: This final rule is effective on
January 1, 2023. The 2023 Atlantic
shark commercial fishing year opens on
January 1, 2023 for all species and
regions.
ADDRESSES: Electronic copies of this
final rule and supporting documents
(including the annual Atlantic Highly
Migratory Species (HMS) Stock
Assessment and Fishery Evaluation
Report and the Atlantic HMS Best
Scientific Information Available
Regional Framework (BSIA Regional
SUMMARY:
Atlantic shark fisheries are managed
primarily under the authority of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act; 16 U.S.C. 1801
et seq.) and the Atlantic Tunas
Convention Act (16 U.S.C. 971 et seq.).
The 2006 Consolidated Atlantic HMS
Fishery Management Plan (2006
Consolidated HMS FMP) and its
amendments are implemented by
regulations at 50 CFR part 635.
For the Atlantic commercial shark
fisheries, the 2006 Consolidated HMS
FMP and its amendments established
default commercial shark retention
limits, quotas for species and
management groups, and accountability
measures for underharvests and
overharvests. The retention limits,
commercial quotas, and accountability
measures can be found at 50 CFR
635.24(a), 635.27(b), and 635.28(b).
Regulations also include provisions
allowing flexible opening dates for the
fishing year (§ 635.27(b)(3)) and
inseason adjustments to shark trip limits
(§ 635.24(a)(8)), which provide
management flexibility in furtherance of
equitable fishing opportunities, to the
extent practicable, for commercial shark
fishermen in all regions and areas. In
addition, § 635.28(b)(4) lists species and
management groups with quotas that are
linked. If quotas are linked, when the
specified quota threshold for one
management group or species is reached
and that management group or species
is closed, the linked management group
or species closes at the same time
(§ 635.28(b)(3)). Lastly, pursuant to
§ 635.27(b)(2), any annual or inseason
adjustments to the base annual
commercial overall, regional, or subregional quotas will be published in the
Federal Register.
Background information about the
need to adjust the quotas and retention
limits and establish the opening date for
the 2023 fishing year for the Atlantic
commercial shark fisheries was
provided in the proposed rule (87 FR
55379, September 9, 2022) and is not
repeated here. The comment period for
the proposed rule closed on October 11,
2022. NMFS received 99 written
comments, the majority of which were
form letter submissions. Summaries of
the comments received, and our
responses to those comments, are in the
Response to Comments section. Similar
comments are combined, where
appropriate. After reviewing and
considering all the public comments
received on the proposed rule, NMFS is
finalizing the rule as proposed.
2023 Commercial Shark Quotas
In this final rule, NMFS adjusts the
quota levels for the various shark stocks
and management groups for the 2023
Atlantic commercial shark fishing year
(i.e., January 1 through December 31,
2023) based on underharvests that
occurred during the 2022 fishing year,
consistent with existing regulations at
§ 635.27(b). Unharvested quota may be
added to the quota for the next fishing
year, but only for shark management
groups that have shark stocks that are
declared not overfished and not
experiencing overfishing. No more than
50 percent of a base annual quota may
be carried over from a previous fishing
year.
Based on 2022 harvests that were
reported by September 30, 2022, and
after considering catch rates and
landings from previous years, with this
final rule, NMFS adjusts the 2023
quotas for certain management groups
as shown in Table 1. NMFS anticipates
that dealer reports received after that
time will be used to adjust 2024 quotas,
as appropriate, noting that, in some
circumstances, NMFS re-adjusts quotas
during the subject year. A description of
the calculations for each stock and
management group is provided in the
proposed rule and is not repeated here.
khammond on DSKJM1Z7X2PROD with RULES
TABLE 1—2023 QUOTAS AND OPENING DATES FOR THE ATLANTIC SHARK MANAGEMENT GROUPS
Region or
sub-region
Western Gulf of
Mexico.
VerDate Sep<11>2014
Management
group
2022 Annual
quota
Preliminary 2022
landings 1
Adjustments 2
2023 Base
annual quota
2023 Final
annual quota
(A)
(B)
(C)
(D)
(D + C)
115.7 mt (255,131 lb)
Blacktip Sharks ......
347.2 mt (765,392 lb)
220.1 mt (485,297 lb)
Aggregate Large
Coastal Sharks 3.
72.0 mt (158,724 lb)
68.0 mt (149,951 lb)
17:07 Nov 10, 2022
Jkt 259001
PO 00000
Frm 00084
Fmt 4700
Sfmt 4700
231.5 mt (510,261 lb)
347.2 mt (765,392 lb).
72.0 mt (158,724 lb)
72.0 mt (158,724 lb).
E:\FR\FM\14NOR1.SGM
14NOR1
Season
opening date
January 1, 2023.
| File Type | application/pdf |
| File Modified | 2022-11-11 |
| File Created | 2022-11-11 |