PART 296—HERMIT'S PEAK/CALF CANYON FIRE ASSISTANCE Authority: Pub. L. 117-180, 136 Stat. 2114, 2168; Homeland Security Act of 2002, 6 U.S.C. 101 et seq. Source: 88 FR 59777, Aug. 29, 2023, unless otherwise noted. 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 resulting 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 https://www.fema.gov/hermits-peak. § 296.4 Definitions. Administrative Appeal Administrative Record Administrator Arbitration Administrator https://www.fema.gov/hermits-peak. Authorized Official Authorized Official's Determination Claimant Claims Office Claims Reviewer Days Director Good Cause, Hermit's Peak/Calf Canyon Fire (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. 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 Household Including Tribal Members Indian Tribe Individual Assistance et seq., Injured Person Injury Notice of Loss Proof of Loss Public Assistance Program et seq., Release and Certification Form Subrogee Subsistence Resources Tribal Member § 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 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. §§ 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. (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 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 https://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 https://www.fema.gov/hermits-peak. (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 a final 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 a final 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 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 and such claims will be paid only after paying claims submitted by injured persons that are not insurance companies seeking payment as subrogees. § 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. §§ 296.15-296.19 [Reserved] 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. § 296.21 Allowable damages. (a) Allowable damages. (b) Exclusions. (c) Loss of property. (1) Real property and contents. (2) Reforestation and revegetation. (3) Decrease in the value of real property. (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 pre-fire value; or (ii) The claimant can establish that the value of the real property was significantly diminished long-term as a result of the Hermit's Peak/Calf Canyon Fire. (4) Subsistence. (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 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. (5) Physical infrastructure. (d) Business loss. (e) Financial loss. (1) Recovery loans. (2) Flood insurance. (3) Out of pocket expenses for treatment of mental health conditions. (4) Donations. (5) Heightened risk reduction. (f) Insurance and other benefits. (1) Insurance. (2) Coordination with FEMA's Public Assistance Program. (3) Benefits provided by FEMA's Individual Assistance program. (4) Worker's compensation claims. (5) Benefits provided by non-governmental organizations and individuals. § 296.22-296.29 [Reserved] Subpart D—Claims Evaluation § 296.30 Establishing injuries and damages. (a) Burden of proof. (b) Proof of Loss. (c) Release and Certification Form. (d) Authority to settle or compromise claims. § 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 that the Claims Office deems necessary to determine the amount of the claim. FEMA will not reimburse claimants for the cost of appraisals or other third-party opinions not deemed necessary 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. § 296.32 Determination of compensation due to claimant. (a) Authorized Official's report. (b) Claimant's options upon issuance of the Authorized Official's determination. § 296.33 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) or the claimant closed the sale of real property and wishes to present a claim for decrease in the value of the real property under § 296.21(c)(3). Claimants may request to reopen claims where 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 no later than the deadline established by the Director of the Claims Office as published in the Federal Register https://www.fema.gov/hermits-peak. § 296.36 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. § 296.38-296.39 [Reserved] 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. http://www.fema.gov/hermits-peak. (b) Acknowledgement of appeal. (c) Supplemental filings. (d) Admissible evidence. (e) Obtaining evidence. (f) Conferences. (g) Hearings. (h) Decision on appeal. (i) Claimant's options following appeal. § 296.42 Arbitration. (a) Initiating arbitration. http://www.fema.gov/hermits-peak. (b) Permissible claims. (c) Selection of arbitrator. (d) Conduct of arbitration. (e) Decision. (f) Action on arbitration decision. (g) Final decision. (h) Administration of arbitration. (i) Expenses. § 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 evidence on the record considered as a whole.