Category Archives: Proposed Legislation

H.R. 2405 Clarifies Religious Institute PA Program Eligibility

H.R. 2405 Clarifies Religious Institute PA Program Eligibility

On May 11th, 2017, HR 2405 was introduced in an attempt to clarify that religious faculties are eligible for Post-Disaster Public Assistance Programs.

Representative Christopher Smith of New Jersey introduced HR 2405 “To amend the Robert T. Stafford Disaster Relief and Emergency Assistance Act to clarify that houses of worship are eligible for certain disaster relief and emergency assistance on terms equal to other eligible private nonprofit facilities, and for other purposes. Currently facilities that benefit the membership of the religious organization are not included in PA Program Facility eligibility. The concept behind facility eligibility is that it benefits “the community at large.” The current thought process is that a sanctuary or other type of worship facility does not benefit the community at large.

The introduced legislation would bring the entire Private Non-Profit (“PNP” Religious facility into the eligibility matrix for consideration as a facility. The facility would still need to be eligible in other ways though. This legislation was just recently introduced and the exact contents should be available soon. It must still Pass the full House, Senate, and be signed by the President to become effective law.

SB 2078 Requires Requires More Details in School District Disaster Planning

SB 2078 Requires Requires More Details in School District Disaster Planning

Texas legislation would require more specific details be added to a School District Disaster Plan and allow for the TEA to notify communities if their school districts don’t meet the disaster planning standard.

Texas SB 2078 currently working its way through the Texas House, essentially requires more detailed planning to be included into the School District’s Multi-Hazard Emergency Operations Plan (“MEOP”).

The biggest change is the addition of six requirements into the MEOP establishes for only school districts:

#1: The Chain of Command/Line of Succession Identification;

#2: 2 scenario specific response plans, with more that can be designated by the Texas School Safety Center at Texas State University;

#3: Portable building safety

#4: a parent/guardian communication plan

#5: statement on amount per student spent on school/district safety

#6: identification of the safety and security committee.

The interesting part is the statement on amount spent per student on school/district safety. The legislative history doesn’t currently suggest a reason why. It can be assumed that this is intended to be a marker for the community to see how their tax dollars are being spent.

The accountability and enforcement mechanism to this bill is essentially public shaming. The new Tex. Education Code §37.108(f) would allow the Texas Education Agency to post online those who fail to submit a MEOP, submit an MEOP that doesn’t meet standards, or fail a safety and security audit.

Texas SB 1897 Proposes to Modify Local Disaster Declaration Requirements

Texas SB 1897 Proposes to Modify Local Disaster Declaration Requirements

Texas State Senator Charles Perry Introduced SB 1897 to Modify Local Disaster Declaration Requirements.

Texas Senate Bill 1897 was introduced on March 10th, 2017 seeking to require more information be put into a local disaster declaration. State Senator Charles Perry of Lubbock, Texas introduced the legislation which has been referred to the Agriculture, Water, & rural Affairs Committee on March 23, 2017.

Here are the highlights from this legislation:

#1: More Description of the Area and Nature of the Designation

“An order or proclamation declaring, continuing, or terminating a local state of disaster issued under this section must include: (1)  a description of the nature of the disaster; (2) a designation of the area threatened; and (3) a description of the conditions that have brought the local state of disaster about or made possible the termination of the local state of disaster.”

#2: The Declaration Must be Posted to the Jurisdiction’s Website

If the political subdivision to which the order or proclamation applies maintains an Internet website, a copy of the order or proclamation shall also be posted on the political subdivision ’s Internet website.

#3: A Request May be Sent to the Governor to Suspend a Deadline

In accordance with Section 418.016(e), the presiding officer of a political subdivision may request the governor to waive or suspend a deadline imposed by a statute or the orders or rules of a state agency on the political subdivision, including a deadline relating to a budget or ad valorem tax, if the waiver or suspension is reasonably necessary for the political subdivision to cope with a local disaster declared under this section.

Follow the bill’s actions and progress by clicking here.

Visit State Senator Perry’s Website by clicking here.

Could Texas Have State Level Disaster Grants?

Could Texas Have State Level Disaster Grants?

SB 351 could give Texas the ability to provide state level disaster grants, similar to what FEMA already does.

The 85th Texas Legislature just called their first regular session this past month. With that, a plethora of bills were filed by state legislators seeking to get their ideas out into their chamber for consideration. One of theses bills was proposed by Senator Kirk Watson from District 14. SB 351 proposes establishing a disaster recovery fund and providing post-disaster grants to local governments (county and municipal), state agencies, and volunteer organizations.

The current system of emergency management under the Stafford Act Disaster Relief Act requires that each level of government or entity exhaust their response and recovery resources before asking for support from the next higher level. In the past, the Texas has been able to provide some funds to entities within the state for recovery purposes; state statute has generally limited support to helping with the state’s cost share of federal disaster grant programs. This is not a hard rule because there are many areas in state statute that allow for disaster grants to be awarded by the governor; however, the funding is largely driven from the federal level. This bill could change all of that.

SB 351 would establish a Disaster Recovery Fund and allow the Texas Division of Emergency Management to administer the fund. After reading the initial text of the bill (which has not been heard in committee yet) it appears that this is essentially duplicating the federal program, at the state level. This can be a good thing for Texas in helping relieve the need to try and help areas impacted by a disaster that has not received a declaration status by the president–which is highly discretionary and is considered to be highly politicized.

We will help keep an eye on this bill as it moves through the State Senate.

Texas Notice: HazMat Emergency Preparedness Sub-Grant Application

Texas Notice: HazMat Emergency Preparedness Sub-Grant Application

TDEM has published the notice on HMEP sub grants on September 19, 2016. The deadline to respond to the RFA is October 17, 2016.

On September 30th, the Texas Division of Emergency Management (“TDEM”) published the Request for Applications (“RFA”) notice for the Hazard Mitigation Emergency Preparedness (“HMEP”) grant program in the Texas Register. HMEP gives funds for the Local Emergency Planning Committees (“LEPC”) for furthering work in hazardous materials transportation emergency planning. This grant is through the U.S. Department of Transpiration, and is an 80% cost share program. Only LEPC’s may apply.

The deadline is October 17, 2016.

For more information, see the links below:

Texas Register Notice #TRD-201604827

TDEM Notification Letter

LEPC Planning Guide

SEC Proposes Business Continuity Rule

SEC Proposes Business Continuity Rules

The Security and Exchange Commission (“SEC”) has issued a request for comments on it’s proposed rules requiring Investment Advisors to prepare and maintain Business Continuity and Transition Planning. Over the past few years, the SEC has noticed a disparity among Investment Advisors in their Business Continuity planning. Some have very robust programs, while others do not and often face interruptions in their operations. With these new rules, the SEC is looking to change all that.

The SEC reasons that 15 USC § 80b6 (“Prohibited Transactions by Investment Advisors”) and the adviser’s fiduciary duty makes an adviser’s representation of a client tantamount to fraud, if they have not taken reasonable steps to develop and maintain a Business Continuity Plan. Many other areas of the finical industry require that their regulated parties have Business Continuity Plans. In fact, the Financial Regulatory Authority (“FINRA”), Commodity Futures Trading Commission (“CFTC”) require their regulated parties to maintain Business Continuity Plans. The North American Securities Administrator Association (“NASAA”) has even published a model rule that requires such Business Continuity Plans for Investment Advisors in adopting states. So bottom line, this has been starting to develop for some time.

There are two rules that are being proposed (one amended and one added). Essentially, §275.204-2 is being amended to add verbiage for Business Continuity Planning and the timeframe records need to be maintained for. The whole new section (which was previously reserved for expansion after that section was repealed) is §275.205(4)-4. Here is what that section currently looks like:

§ 275.206(4)–4 Investment adviser business continuity and transition plan.

(a) Prohibition. If you are an investment adviser registered or required to be registered under section 203 of the Act (15 U.S.C. 80b–3), it shall be unlawful within the meaning of section 206 of the Act (15. U.S.C. 80b– 6) for you to provide investment advice to your clients unless you:

(1) Business continuity and transition plan. Adopt and implement a written business continuity and transition plan; and

(2) Annual review. Review, no less frequently than annually, the adequacy of the business continuity and transition plan and the effectiveness of its implementation.

(b) Content of business continuity and transition plan.

(1) For purposes of this section, the term business continuity and transition plan means policies and procedures reasonably designed to address operational and other risks related to a significant disruption in the investment adviser’s operations, including policies and procedures concerning:

               (i) Business continuity after a significant business disruption; and

(ii) Business transition in the event the investment adviser is unable to continue providing investment advisory services to clients.

(2) The content of a business continuity and transition plan shall be based upon risks associated with the adviser’s operations and shall include policies and procedures designed to minimize material service disruptions, including policies and procedures that address the following:

(i) Maintenance of critical operations and systems, and the protection, backup, and recovery of data, including client records;

(ii) Pre-arranged alternate physical location(s) of the adviser’s office(s) and/ or employees;

(iii) Communications with clients, employees, service providers, and regulators;

(iv) Identification and assessment of third-party services critical to the operation of the adviser; and

(v) Plan of transition that accounts for the possible winding down of the investment adviser’s business or the transition of the investment adviser’s business to others in the event the investment adviser is unable to continue providing investment advisory services, that includes the following:

(A) Policies and procedures intended to safeguard, transfer, and/or distribute client assets during transition;

(B) Policies and procedures facilitating the prompt generation of any client-specific information necessary to transition each client account;

(C) Information regarding the corporate governance structure of the adviser;

(D) Identification of any material financial resources available to the adviser; and

(E) An assessment of the applicable law and contractual obligations governing the adviser and its clients, including pooled investment vehicles, implicated by the adviser’s transition.

In addition, the SEC provides a very in-depth reasoning and analysis of what they are seeking to do. Even more, they have specific questions they want to get feedback from the field on centered around what the impacts of a regulation like this would be.

Click Here to View the Full Entry on the Federal Register

or

Click Here to Submit a Comment to the US Securities and Exchange Commission

FEMA Wants Stakeholder Input on NIMS

FEMA Wants Stakeholder Input on NIMS

FEMA is working on an update to the NIMS documents and wants your thoughts!

FEMA is working on an update (what they are calling a “refresh”) of the National Incident Management System (“NIMS”). NIMS was last reviewed in 2004 and 2008, incorporating lessons learned, best practices, national policy updates that occurred between publishing. Part of the development of new governmental policies is the input from stakeholders. I know wherever I have been we’ve had practitioners with great ideas and thoughts of how to make programs better; this is the chance to be heard.

Most significant to the NIMS update is the introduction of Center Management System (“CMS”) guidance that helps provide a common structure and activation scheme for operations and coordination centers. Though its not mandatory as part of preparedness grant programs. However as we all know with most things in the government, once something is introduced it’s usually a matter of time before it becomes required.

FEMA is hosting a series of Webinars to discuss the proposed changes and provide information how to give feedback. Here is a list of the dates and times of each:

  1. Monday, April 25, 2016 at 12:00 PM Eastern – Visit the Registration Page Here
  2. Tuesday, April 26, 2016 at 1:00 PM Eastern – Visit the Registration Page Here
  3. Wednesday, April 27, 2016 at 10:00 AM Eastern – Visit the Registration Page Here
  4. Thursday, April 28, 2016 at 5:00 PM Eastern – Visit the Registration Page Here
  5. Monday, May 2, 2016 at 12:00 PM Eastern – Visit the Registration Page Here

To take a look at the draft document and the feedback form Visit FEMA’s document page by Clicking Here.

The Comment Period will end on May 9th at 5:00 PM Eastern, so don’t wait too long to think about those ideas and write them down!

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Visit FEMA’s Statement by Clicking Here.

Emergency Preparedness Sales Tax Holiday

Emergency Preparedness Sales Tax Holiday

The 2016 Sales Tax Holiday for Emergency Preparedness Supplies will happen in Texas from April 23-25, 2016.

Did you know that Texas has a sales tax holiday specifically for Emergency Preparedness Supplies? It does! It is designed to mirror the School Supplies Tax Holiday that has been in effect for many years. However, this hasn’t always been the case.

State Senator Juan “Chuy” Hinojosa from McAllen, Texas authored the bill in March 2015 and was passed in June 2015 by signature of the Governor. A review of the legislative history of SB 904 (the bill that then turned into Tex. Tax §151.3565) shows a very easy path with relatively no opposition to the bill.

Since 2016 will be the first ever “Emergency Preparation Supplies Sales Tax Holiday” there might be some confusion on what exactly is tax free from 12:01 am on Saturday, April 23, and ending at midnight on Monday, April 25, 2016. If you are interested in reading the full statute, you can find what is covered at Tex. Tax Code § 151.3565(b) (West 2016). The great part about this whole process is that–like the School Supplies Sales Tax Holiday–you don’t need to show an exemption form to be exempted from sales tax and there’s no limit to the number of items you can purchase! Keep in mind though, if there is shipping, handling or any other charges on the item when it is purchased, that is considered part of the sales price.

Here’s the list:

  • Portable Generators that are sales priced at $3,000 or less and used for light, communications, and/or perishable foods in the event of a power outage (Tex. Tax Code § 151.3565(b)(1)).
  • Storm Protection Devices, that are”manufactured, rated, and marketed specifically to prevent damage to a glazed or non-glazed opening during a storm” sales priced less than $300 (Tex. Tax Code § 151.3565(b)(2)(A)).
  • Emergency or Rescue Ladders sales priced less than $300 (Tex. Tax Code § 151.3565(b)(2)(B)).
  • Each of the following are eligible if sales priced under $75 (Tex. Tax Code § 151.3565(b)(3)(A)-(M)):
    • Reusable or Artificial Ice Products
    • Portable, self-powered light sources
    • Gasoline or diesel fuel containers
    • Small batteries that come more than one to a package and are not car or boat batteries (AAA, AA, C, and D cells & 6 and 9 volt batteries)
    • Nonelectric cooler or ice chest used for food storage
    • Tarps (listed as “tarpaulin”) or other flexible weatherproof sheeting
    • Ground anchor systems or tie-down kits
    • Cellphone batteries or battery chargers
    • Portable self-powered radios to include both two-way and weather radios
    • Fire extinguishers
    • Smoke Detectors
    • Carbon Monoxide Detectors
    • Hatchets & Axes
    • Self-contained first aid kits
    • Non-electric can openers.

As a review, the Federal Emergency Management Agency (“FEMA”) recommends individuals and families have the following in their basic emergency supplies kit:

  • Water (1 Gallon per person, per day)
  • At least 3 days of non-perishable food
  • Battery-powered or hand crank radio and a weather radio with tone alert.
  • Flashlight
  • First Aid Kit
  • Whistle
  • Filter masks
  • Moist towelettes, garbage bags, and plastic ties
  • Wrench or pliers
  • Manual can opener
  • Plastic sheeting and duct tape
  • Cellphone and chargers
  • Important Family Documents
  • Extra batteries for all electronics in the kit
  • And family unique items (such as pet supplies, medicines, formula, or diapers).

The Texas Comptroller’s website has an announcement speaking about this tax holiday at: http://comptroller.texas.gov/taxinfo/taxpubs/tx98_1017.html.

Sales Tax Holiday Flyer

Reefer & Recovery: Possible SBA Disaster Loan Issues

Reefer & Recovery: Possible SBA Disaster Loan Issues

As states and tribes legalize marijuana, are there any problems that emergency managers face? Regardless of personal/political opinions, are there tertiary impacts we in the profession should be thinking and advising our political leaders about?

As states and tribes legalize marijuana, emergency managers are faced problem of controlling the impact of a disaster without the assistance of federal programs that are heavily relied upon. The Emergency Management Cycle is the standardized method emergency managers use to understand how to approach their job. Each of the cycle’s four phases present a unique problem for consideration concerning marijuana legalization. This article is second in a series of four articles related to marijuana legalization and potential issues related to Emergency Management. This article asks whether or not legalized marijuana grow operations and dispensaries are eligible for Disaster Loans from the U.S. Small Business Administration.

Note: This article does not state a position on the legalization of marijuana and merely identifies potential issues for emergency management as it is legalized at state and tribal levels. This article is not legal advice! Consult with a licensed attorney in your jurisdiction!

Background: After the President issues a federal disaster declaration, the U.S. Small Business Administration (“SBA”) can offer low-interest loans to businesses and individuals. Businesses can qualify for up to $2 million in low-interest physical disaster loans to cover damage to their business. Further, small businesses, and agricultural operations who suffer an economic impact from a disaster can apply for the Economic Injury and Disaster Loan program (“EIDL”).

Hypothetical: California just experienced its first tsunami from a 8.7 magnitude earthquake centered around the Cascadia subduction zone (predicted to be the most dangerous part of the San Andreas fault). You represent a legalized medical marijuana grower in Northern California. The grow operation lost everything to the tsunami, including: plants, equipment, inventories, and facilities. The owner wants to know if she can qualify for either a Physical or EIDL SBA loan to get everything started again. What do you advise her?

Answer: Apply, but don’t expect to get a yes. Under 13 CFR § 123.201(d), illegal activities are generally ineligible for both disaster loan programs. However, the SBA encourages everyone to apply for a disaster loan simply because things can change depending on the disaster. Upon receiving the denial letter from the SBA, the owner will have six months to submit a written request for reconsideration of the application by a different SBA loan officer. If the request is denied for a second time, the owner will have at a minimum 30 days to appeal to the SBA’s Office of Hearings and Appeals. An additional 60 days may be granted if the second denial letter states new reasons for denying the application. At any one of these points the argument could be made that the grow operation was legal. There are no general cases on point regarding what “concerns” are illegal and the statute is vague enough, making the approval of a grow operation’s application subject to the discretion of an SBA loan officer or Administrative Judge.

Next Step: Though immediate reaction might be to lobby for some sort of policy change, doing so might create more hurdles for marijuana businesses. Currently a single sentence in both statute and operating procedure guide loan officers on marijuana businesses. Advocating for policy reform independent of rescheduling efforts may lead to more barriers. Lack of formal guidance enables owners to make better arguments during reviews and hearings.

Registration of Drone Operators

FAA To Require Drone Operator Registration

FAA seeks to increase accountability of drone operators due to recent near misses. This could be a sign of relief for Emergency Managers.

According to the FAA, pilot sightings of unmanned aircraft near airplanes and at sporting events have doubled since last year. Some of these reports included interference with wildfire-fighting operations on the West Coast this year. Despite the increase, no accidents have been reported to the FAA.

Though there are no current requirements in place, Secretary of Transportation has directed a Task Force to develop and deliver a report by November 20th to have registration requirements in place by mid-December–just in time for the holidays. This gets interesting as the Consumer Electronics Association predicts that 700,000 drones will be sold this holiday season.

What does this mean for emergency managers? Really not much for internal operations. Currently government entities are required to receive a Certificate of Authorization from the FAA before operating their own unmanned aviation program. Hobbyists and some commercial entities have typically been afforded less regulation. However, emergency managers should see this as a somewhat sigh of relief. The ability to assign ownership of a specific unmanned aircraft could lead to more accountability and more responsible airborne operation. This may reduce the risk assessment emergency managers currently assess unmanned aircraft incidents at.

However, questions remain as to how this will be regulated, if state and local law enforcement entities will have the ability to enforce. Further, just because there are regulations doesn’t mean that everyone will follow them. Without an effective enforcement mechanism, any new FAA regulation of unmanned aircraft wouldn’t really have the desired impact. A pressing question–though it is unclear how this could be addressed–is how do you distinguish between the unmanned aircraft operated by regulated and approved operators and those operated by individuals with more of a nefarious intent?

Though the last statement may seem to contradict the sigh of relief emergency managers may feel, it really could help weed out the nefarious intenders from the responsible ones. For example: there are 100 unmanned aircraft within a jurisdiction owned by the citizenry. 90 are registered and operated by those following the rules (i.e. don’t fly near a stadium) and 10 are not. This form of deterrence reduces the logical leap required to identify those unmanned aircraft with a higher likelihood of nefarious intent. But without mandatory registration at purchase, it would be extremely hard for authorities to identify the owner of the nefarious unmanned aircraft–especially if it is not recovered by authorities.

Sources:

Article by Ian Duncan of the Barlitmore Sun: Click Here

FAA UAV Webpage: Click Here

FAA UAV Registration Information: Click Here