February 23, 2011
CALIFORNIA EMERGENCY MANAGEMENT AGENCY (Cal EMA)
INITIAL STATEMENT OF REASONS
CALIFORNIA CODE OF REGULATIONS
TITLE 19. PUBLIC SAFETY
DIVISION 2. OFFICE OF EMERGENCY SERVICES
CHAPTER 6, CALIFORNIA DISASTER ASSISTANCE ACT
General Problem Statement:
In accordance with Title 2, Division 1, Chapter 7.5, Section 8692(e) of the Government Code
(Govt. Code), Cal EMA shall adopt regulations to govern the administration of Article 6,
Nonprofit Organizations.
The California Disaster Assistance Act (Act) was amended by Assembly Bill 903 – Chapter 400;
approved by the Governor on October 10, 2007 [Title 2, Division 1, Chapter 7.5, of the Govt.
Code] to require the Secretary of the Cal EMA to administer a program that provides state
financial assistance as reimbursement to private nonprofit organizations (PNPs) for the
distribution of supplies and other emergency or disaster assistance activities resulting in
extraordinary costs. Prior to this amendment, the program provided state financial assistance to
local agencies. For the purposes of the program, a PNP is defined as any private not for profit
organization that is compliant with Title 44 of the Code of Federal Regulations (44 CFR)
Section 206.221(f). The program may be implemented only in the event of a Governor’s State of
Emergency Proclamation.
During this regulatory process, a series of winter storms which resulted in a federally declared
major disaster devastated many impacted counties in California. Cal EMA, in an effort to
alleviate some of the economic burden of PNPs, proposed to the Office of Administrative Law
that these regulations be adopted as emergency regulations. The emergency regulations were
adopted on February 18, 2011 and are effective for a period of 180 days.
General Purpose Statement:
The existing regulations (Title 19, Division 2, Chapter 6 of the California Code of Regulations
(19 CCR) Sections 2900 – 2990) describe the implementation of the program under the Act for
local agencies. Local agencies have the jurisdictional authority and responsibility to provide
emergency response and recovery activities to an impacted community.
With the increased impact of emergency management activities on local government coupled
with the current economic climate, it has become critical to rely on a holistic community
approach to emergency response and recovery. In order to promote this community effort, the
Governor and the Legislature have provided a mechanism by statute to reimburse PNPs for the
extraordinary costs of their emergency assistance activities.
These proposed regulations are necessary to implement PNP eligibility for state financial
assistance as mandated in Section 8692 of the Act. These regulations are consistent with the
Page 1 of 11
February 23, 2011
current practices for reimbursement to local agencies while providing the specificity and
flexibility necessary for PNPs to recoup their extraordinary costs for emergency or disaster
activities.
For example, Govt. Code Section 8685.2 requires local agencies to proclaim a local emergency
within 10 days of an incident in order to qualify for state financial assistance under the Act.
However, PNPs have neither the responsibility nor the authority to proclaim a local emergency.
Specifically, Cal EMA proposes to add new sections to 19 CCR beginning with Section 2991 as
detailed in the table beginning on page 3.
Technical, Theoretical, and/or Empirical Study, Reports, or Documents:
Unless otherwise stated in a particular regulatory section, Cal EMA did not rely upon any
technical, theoretical, or empirical studies, reports or documents in proposing the changes to
these regulations.
Description of Alternatives Considered and the Reasons for Rejecting Such Alternatives:
Pursuant to Govt. Code Section 8692(e), Cal EMA is specifically mandated to adopt regulations
to implement the statute.
Alternatives to the Proposed Regulatory Action That Would Lessen Any Adverse Impact
on Business:
The statute and regulations implemented by Cal EMA have no impact on businesses in
California. The proposed regulations would provide a mechanism to allow eligible PNPs to
receive state financial assistance as reimbursement for extraordinary costs during a state of
emergency as proclaimed by the Governor.
Page 2 of 11
February 23, 2011
Section
Number
Public problem, administrative
requirement, or other condition or
circumstance the amended
regulation is intended to address:
These proposed regulations are added
to Title 19, Division 2, Chapter 6 as a
separate and distinct program and to
eliminate the potential for confusion
or overlap with the State Public
Assistance program, the separation of
the Chapter into two Articles is
proposed.
The regulations contain no definition
of “essential community services.”
Specific purpose and necessity of the amended regulation:
2991(b)
The regulations currently contain a
definition of “hazard mitigation” but
the definition is specific to the state
Public Assistance Program.
To ensure that there is an understanding of the terminology in Section
2995(b), the definition of ‘hazard mitigation’ as it relates to the PNP
activities program is required for clarity of eligibility requirements.
2991(c)
The regulations contain no definition
of “intermediary private nonprofit
(Intermediary PNP) organizations.”
2991(d)
The regulations currently contain a
definition of “local agency” but the
definition is specific to the state
Public Assistance Program.
The definition of Intermediary PNP organizations provides understanding
and clarity to the concept of an umbrella organization. This definition is
necessary to ensure that PNP organizations have knowledge of the
qualifications that are necessary to be considered a Intermediary PNP and
what sets it apart from other PNPs.
Defining ‘local agency’ as it relates to the PNP activities program is required
for clarity of eligibility requirements within the proposed regulation. This
definition was also requested during the public comment period and is
essential for the separation of governmental agencies and those that may be
PNP organizations that refer to themselves as “agencies.”
2991(e)
The regulations contain no definition
of “private nonprofit organizations.”
Article I
and
Article II
2991(a)
Technical, theoretical,
and/or empirical studies,
reports, documents and
authorities:
The addition of Article I and Article II to Title 19, Division 2, Chapter 6
provides clarity and distinct separation of the State Public Assistance
Program from the State Private Nonprofit Organizations Assistance Program.
Defining the term “essential community services” will provide clarity and
consistency for the PNP activities eligible for state financial assistance under
this section.
The definition of PNP is required as the statute specifically addresses PNP
organizations. This definition already exists in federal regulation and for
consistency was utilized in these proposed regulations.
Page 3 of 11
Title 44 of the Code of
Federal Regulations
(44 CFR), Section
206.62(c)(1)
44 CFR Section 206.221(f);
U.S. Internal Revenue Code,
Section 5019(c), (d) or (e).
February 23, 2011
Section
Number
2992
2993
Public problem, administrative
requirement, or other condition or
circumstance the amended
regulation is intended to address:
The regulations contain no General
Provisions that apply to PNP
applicants.
The regulations currently contain no
description of PNP applicant
eligibility requirements.
Specific purpose and necessity of the amended regulation:
It is imperative that the potential PNP applicants comply with certain general
requirements that are mandated by the law and are not specific to either PNP
applicants or to Intermediary PNP applicants separately. A state of
emergency must have been proclaimed by the Governor and must be on or
after December 21, 2010 to be consistent with the emergency regulations
adopted for this program. All PNP activities must meet the definition of
“essential community services.” This includes the activities of the PNPs that
are coordinated by an Intermediary PNP. No PNP activities resulting from
self deployment will be eligible for reimbursement because this would be in
direct conflict with the California Emergency Services Act and the
implementation of the Standardized Emergency Management System
wherein it is the statutory responsibility of government to manage the overall
response activities of an emergency or disaster. The limitation of eligibility
to six (6) months following the Governor’s proclamation unless an extension
is approved by Cal EMA provides consistency to the implementation of the
program from one disaster to another. A standardized application process as
those described in Sections 2999 and 2999.1 is utilized to ensure equitability
in processing applications from one applicant to the next and from one
disaster to the next.
To provide clarification and consistency of implementation, this section
provides the specific elements required for PNP applicant eligibility. A PNP
must meet the federal definition of a private, not for profit organization to
comply with the definition of a PNP in Section 2991(e) and the requirement
of the law. A PNP must provide essential community services as defined in
Section 2991(a) to ensure that the assistance activities provided to a local
agency is a coordinated component consistent with the emergency
management of the disaster situation. In addition, a PNP must not use public
funds to provide religious content in the provision of emergency assistance
activities as described in statute.
Page 4 of 11
Technical, theoretical,
and/or empirical studies,
reports, documents and
authorities:
Consistent with but separate
from provisions in Title 19
of the California Code of
Regulations (19 CCR),
Chapter 6.
Standardized Emergency
Management System
(SEMS)
Emergency Services Act,
Govt. Code Section 8607
44 CFR Section
206.62(c)(1);
Govt. Code Section 8607(e);
Govt. Code Section 8692(d);
Earthquake Recovery: A
Survival Manual for Local
Government
February 23, 2011
Section
Number
2994
Public problem, administrative
requirement, or other condition or
circumstance the amended
regulation is intended to address:
The regulations currently contain no
description of Intermediary PNP
applicant eligibility requirements. As
a result of public comment, the
Intermediary PNP was added to the
regulation to facilitate the
management the multitude of PNP
applicants through an “umbrella”
organization that will act as a
“liaison” between the PNPs providing
essential community services and the
local agency.
Specific purpose and necessity of the amended regulation:
To ensure that all PNP organizations that are providing coordination of
multiple PNPs are recognized for their coordination efforts and are provided
consistent and equitable treatment, this section provides the specific elements
required for Intermediary PNP applicant eligibility. To ensure that
consistency and equity of implementation, an Intermediary PNP must meet
the definition of a Intermediary PNP as defined in Section 2991(c). To be
consistent with the Standardized Emergency Management System an
Intermediary PNP must be responsible for the coordination of multiple PNPs
through a written agreement with a local agency. The written agreement
shall contain a list of the PNPs that the Intermediary PNP will be
coordinating, to avoid duplication of application for reimbursement. The
process for the local agency to request the Intermediary to coordinate the
essential community services provided by the listed PNPs must also be
included in the written agreement to ensure that both parties understand the
relationship of the agreement to the emergency management process. This
written agreement with the local agency shall be executed within 30 day s of
the date of the Governor’s State of Emergency Proclamation. To provide
consistency and equitability, an Intermediary PNP must have a written
agreement with the listed PNPs, including a description of the process for the
request the performance of essential community services through the
Intermediary PNP and an authorization statement with signature that the
Intermediary PNP will comply with the procedures and requirements
described in the agreement. The PNPs represented by the Intermediary PNP
must have a written understanding that this Intermediary PNP will be
applying for reimbursement on behalf of the PNP and will be responsible for
coordinating the PNPs as they provide the essential community services.
Page 5 of 11
Technical, theoretical,
and/or empirical studies,
reports, documents and
authorities:
February 23, 2011
Section
Number
2995
2996
Public problem, administrative
requirement, or other condition or
circumstance the amended
regulation is intended to address:
The regulations contain no description
of requirements for eligible PNP
activities.
The regulations contain no description
of the requirements for eligible
Intermediary PNP coordination
activities.
Specific purpose and necessity of the amended regulation:
To provide a framework for the PNP to understand the specific elements
required for PNP activities eligibility, this section delineates each
requirement. To be in compliance with the Standardized Emergency
Management System (SEMS) required by the Emergency Services Act, PNP
activities must be requested by a local agency or the state and completed
within a timeframe established by the requesting agency. To provide some
flexibility to the local agency and to the PNP and to promote cooperation and
coordination between the two, a written agreement between an eligible PNP
and the requesting local agency may replace such request if the agreement
specifies the requirements of deployment and is executed prior to providing
the essential community services. The activities must support the community
affected by an emergency or disaster, since the intent of the law did not
include the development of an individual assistance or a social services
program. Eligible PNP activities must comply with civil rights laws and
must be free of religious content as required by the law. To be consistent
with the law, which refers specifically to assistance activities, hazard
mitigation, repair or permanent restoration to damaged facilities or real
property are included as ineligible PNP activities for purposes of this
program.
This section provides clarification of the specific elements required for the
Intermediary PNP coordination activities eligibility. To be consistent with
the Standardized Emergency Management System (SEMS), eligible
coordination activities must be requested by the local agency. To be
consistent with the requirements of Govt. Code Section 8692, the
coordination activities must pertain to the performance of essential
community services by the multiple PNPs that they are responsible for
coordinating. Eligible Intermediary PNP coordination activities must comply
with civil rights laws and must be free of religious content, as require by
Govt. Code Section 8692. These coordination activities must relate to the
state of emergency as proclaimed by the Governor and support the
community affected by the emergency or disaster, Govt. Code Section 8692.
Page 6 of 11
Technical, theoretical,
and/or empirical studies,
reports, documents and
authorities:
Govt. Code Section 8692(a)
and (d);
Debris Removal: Title 19
Section 2925
Standardized Emergency
Management System
(SEMS)
Emergency Services Act,
Govt. Code Section 8607
Standardized Emergency
Management System
(SEMS)
Emergency Services Act,
Govt. Code Section 8607
February 23, 2011
Section
Number
2997
Public problem, administrative
requirement, or other condition or
circumstance the amended
regulation is intended to address:
The regulations contain no description
of cost eligibility requirements.
Specific purpose and necessity of the amended regulation:
Pursuant to Govt. Code Section 8692, only extraordinary costs are eligible
for reimbursement. To provide "extraordinary cost" as required by the law,
the assistance activities had to have been both completed and paid for prior to
seeking state reimbursement. In order to process the claim, the costs must be
substantiated by appropriate documentation. The term extraordinary is
globally accepted as above or beyond normal, exceptional or remarkable. As
is relates to costs, extraordinary refers to costs above what is documented as
normal. The term is not defined in federal or state regulation or law. To
define extraordinary in these regulations would require an explanation of
normal costs and with the wide variety of assistance activities that PNP could
potentially provided to local agencies, this would be restrictive and not all
encompassing. Accepting the global interpretation of the term extraordinary
allows the PNP or the Intermediary PNP to document their normal costs
without creating undue and unnecessary hardship while also ensuring that the
costs that are submitted for reimbursement under this program are
documented as above their normal costs for that activity. This program is
designed to provide financial relief to PNPs and Intermediary PNPs through
a simple, easy to follow process.
No state financial assistance will be provided for activities prohibited by
federal and state constitution, law or regulations.
To ensure that PNPs are able to recoup the inventory they utilize to provide
essential community services, the reasonable equal value replacement costs
for documented pre-event inventory may be reimbursable. No state
reimbursement will be provided for any donated resources received by the
PNP on or after the first day of the incident period as specified in the
Governor’s State of Emergency proclamation, since there are no costs
associated with donations. No reimbursement will be provided for donated
or volunteer labor because there are no costs associated with donations. No
reimbursement will be provided for vouchers, debit cards or other monetary
relief provided to the community affected by the emergency or disaster since
these are not assistance activities as required by the law. As required by the
law, reimbursement for damages caused by negligence or intentional acts
will not be eligible under this section, and no funds can be used to supplant
other state or federal funds.
Page 7 of 11
Technical, theoretical,
and/or empirical studies,
reports, documents and
authorities:
Govt. Code Section 8692(a)
[extraordinary costs]; Govt.
Code 8690.6(e)
[supplanting language]; 44
CCR 2910(g)
[administrative allowance
allocated to local agencies]
February 23, 2011
Section
Number
2998
2999(a)
Public problem, administrative
requirement, or other condition or
circumstance the amended
regulation is intended to address:
The regulations contain no description
for the cost eligibility requirements of
the Intermediary PNP.
The regulations contain no prescribed
application process for PNPs to obtain
state financial assistance under this
section for essential community
services.
Specific purpose and necessity of the amended regulation:
This section provides clarity and understanding to the cost eligibility
requirements of the Intermediary PNP for coordination activities of the PNPs
providing essential community services. The coordination costs are
restricted to those documented and extraordinary. The Intermediary PNP
will need to provide documentation of their normal costs and demonstrate
that the costs for their coordination activities at the request of a local agency
during an emergency or disaster are above normal. No state financial
assistance will be provided for costs associated with activities prohibited by
federal and state constitution, law or regulations. No funds can be used to
supplant other state or federal funds.
To be consistent with the application process for local agencies, a similar
process has been developed for PNPs to facilitate that review of the
application since staff is already familiar with the application process for
local agencies. A completed PNP application must be submitted to Cal EMA
within 60 days after the date of the Governor’s Proclamation. To provide
consistency and efficiency in processing, a standardized application form has
been incorporated into the regulations by reference. The 60-day time frame
should be sufficient to provide the state with the information as to how many
PNPs and Intermediary PNPs will be applying of reimbursement for a
specific emergency or disaster. This date may be extended by the Cal EMA
Secretary for unusual circumstances, allowing for the need for flexibility in
emergency or disaster situations. The PNP applicant must also submit a
resolution designating an authorized representative. This resolution is also
consistent with the requirements for local agencies and provides the
appropriate contact information and the authority to resolve potential issues
and ensure that the application process is as smooth and easy as possible for
the PNP or the Intermediary PNP. To provide consistency and efficiency in
processing, a standardized authorized agent resolution form has been
incorporated into the regulations by reference.
Page 8 of 11
Technical, theoretical,
and/or empirical studies,
reports, documents and
authorities:
19 CCR, Section 2970(a)(4)
February 23, 2011
Section
Number
2999(b)
Public problem, administrative
requirement, or other condition or
circumstance the amended
regulation is intended to address:
The regulations contain no prescribed
claims process for PNPs to obtain
state financial assistance under this
section for essential community
services.
Specific purpose and necessity of the amended regulation:
A PNP must submit an activities claim to Cal EMA within 60 days of the
completion of all eligible activities. To provide consistency and efficiency in
processing, a standardized activities claim form has been incorporated into
the regulations by reference. The 60-day time frame is consistent with that
required of local agencies and provides sufficient time frame to be completed
by the applicant. Providing this information in a timely manner, provides the
state essential data which relates to the staffing necessary to effectively
process the applications received during an emergency or disaster.
State Reimbursement Rate: The state shall provide one hundred (100)
percent of the total cost of eligible PNP activities. This decision was based
on the fact that there are no administrative costs allowable under this
program. The reimbursement, pursuant to Govt. Code Section 8692 is only
for the extraordinary costs associated with providing assistance to local
agencies.
Threshold for Reimbursement: The state shall make no allocation less than
$1,000 for eligible PNP costs. This threshold is lower than the threshold of
$2,500 for local agencies in order to decrease the financial burden of
extraordinary costs of PNP organizations when performing essential
community services following an emergency or disaster. A threshold for
reimbursement is established to ensure that the cost of processing the
payment does not exceed the payment provided.
2999(c)
The regulations contain no prescribed
partial payment process for PNPs to
obtain state financial assistance under
this section for essential community
services.
To provide assurance that PNP applicants are processed equitably, the PNP
has the right to a fair hearing if the state allocation is less than the total costs
submitted.
The current regulations provide a process for local agencies to submit a
reimbursement request prior to the completion of all eligible activities. To
ensure that PNP applicants have a similar option and to ensure that the
process does not impose undue burden, Cal EMA has included a provision
for partial payment when PNPs provide sustained operations and they can
demonstrate financial hardship.
Page 9 of 11
Technical, theoretical,
and/or empirical studies,
reports, documents and
authorities:
19 CCR, Section 2980(a)
Govt. Code 8685.6;
19 CCR, Section 2970(e)
Govt. Code 8686(d)
[threshold described for
local agencies]
19 CCR, Section 2970(e)
19 CCR, Section 2970(d)
February 23, 2011
Section
Number
2999.1(a)
Public problem, administrative
requirement, or other condition or
circumstance the amended
regulation is intended to address:
The regulations contain no prescribed
application process for the eligible
Intermediary PNP applicant to obtain
state financial assistance.
2999.1(b)
The regulations contain no prescribed
claims process for Intermediary PNPs
to obtain state financial assistance
under this section for coordination
activities.
2999.1(c)
The regulations contain no prescribed
process for Intermediary PNPs to
obtain state financial assistance under
this section for essential community
services provided by the multiple
PNPs that the Intermediary PNP is
responsible for coordinating.
Specific purpose and necessity of the amended regulation:
To be consistent with the application process for local agencies, a similar
process has been developed for Intermediary PNPs to facilitate that review of
the application since staff is already familiar with the application process for
local agencies. A completed PNP application must be submitted to Cal EMA
within 60 days after the date of the Governor’s Proclamation. To provide
consistency and efficiency in processing, a standardized application form has
been incorporated into the regulations by reference. The 60-day time frame
should be sufficient to provide the state with the information as to how many
PNPs and Intermediary PNPs will be applying of reimbursement for a
specific emergency or disaster. This date may be extended by the Cal EMA
Secretary for unusual circumstances, allowing for the need for flexibility in
emergency or disaster situations. The Intermediary PNP applicant must also
submit a resolution designating an authorized representative. This resolution
is also consistent with the requirements for local agencies and provides the
appropriate contact information and the authority to resolve potential issues
and ensure that the application process is as smooth and easy as possible. To
provide consistency and efficiency in processing, a standardized authorized
agent resolution form has been incorporated into the regulations by reference.
An Intermediary PNP must submit an activities claim to Cal EMA within 60
days of the completion of all eligible coordination activities. To provide
consistency and efficiency in processing, a standardized activities claim form
has been incorporated into the regulations by reference. The 60-day time
frame is consistent with that required of local agencies and provides
sufficient time frame to be completed by the applicant. Providing this
information in a timely manner, provides the state essential data which
relates to the staffing necessary to effectively process the applications
received during an emergency or disaster.
As a part to their coordination, the Intermediary PNP may include on the
PNP activities claim, the eligible costs of all of the PNPs listed in their
agreement that provided essential community services for the requesting
local agency. The Intermediary PNP will be responsible for processing the
reimbursement to those PNPs included on the claims form. This language is
included in the regulations to ensure that the Intermediary PNP understands
their responsibility to reimburse the PNPs with costs included on the PNP
activities claim form. The state may review supporting documentation at
their discretion.
Page 10 of 11
Technical, theoretical,
and/or empirical studies,
reports, documents and
authorities:
February 23, 2011
Section
Number
Public problem, administrative
requirement, or other condition or
circumstance the amended
regulation is intended to address:
Specific purpose and necessity of the amended regulation:
Technical, theoretical,
and/or empirical studies,
reports, documents and
authorities:
State Reimbursement Rate: The state shall provide one hundred (100)
percent of the total cost of eligible Intermediary PNP coordination activities.
This decision was based on the fact that there are no administrative costs
allowable under this program. The reimbursement, pursuant to Govt. Code
Section 8692 is only for the extraordinary costs associated with providing
assistance to local agencies.
Threshold for Reimbursement: The state shall make no allocation less than
$1,000 for eligible Intermediary PNP coordination costs. A threshold for
reimbursement is established to ensure that the cost of processing the
payment does not exceed the payment provided.
2999.2
2999.3,
2999.4,
2999.5
The regulations contain no prescribed
fair hearing process for PNPs or
Intermediary PNPs to obtain state
financial assistance under this section
for essential community services.
The regulations contain no prescribed
audits and documentation
requirements for PNP or Intermediary
PNP applicants receiving state grant
assistance.
To provide assurance that Intermediary PNP applicants are processed
equitably, the Intermediary PNP has the right to a fair hearing if the state
allocation is less than the total costs submitted.
To provide consistency with local agency provisions, PNP or Intermediary
PNP applicants have the right to a fair hearing. The fair hearing process
allows the PNP or the Intermediary PNP applicant the chance to formally
appeal a less than total payment of a PNP activities claim.
To be in compliance with state auditing and records retention requirements,
these sections have been included to provide the PNP and the Intermediary
PNP a clear understanding of their requirements in this regard.
Page 11 of 11
19 CCR, Section 2990
19 CCR, Sections 2980(d),
(e),(f)