DIRECTIVE	:	UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 43-91
TO	:	ALL STATE EMPLOYMENT SECURITY AGENCIES
FROM	:	DONALD J. KULICK Administrator for Regional Management
SUBJECT	:	Interpretation of the Phrase "date of the disaster" as used in 20 CFR 625.6 and Procedures to be Followed in the Computation of the Weekly Amount of Disaster Unemployment Assistance (DUA)

1. Purpose. To advise State agencies of the Department of Labor's interpretation of the phrase "date of the disaster" and clarification of the provisions under 20 CFR 625.6 to be followed in computing the weekly DUA amount.

2. References. 42 U.S.C. 5177; 20 CFR Part 625; ET Handbook No. 356; and Unemployment Insurance Program Letter (UIPL) 16-78.

3. Background. 20 CFR 625.6(a) (1) provides that an individual shall be paid a weekly DUA amount (computed on the basis of the base period, qualifying employment, wage requirements and benefit formula of the applicable State law) equal to the amount calculated under the State unemployment compensation law. If, as a result, an individual is entitled to less than the average weekly amount of regular compensation paid in the State or is not entitled at all under the provisions of paragraph (a) (1), then 20 CFR 625.6 (a) (2) and (3), the alternate methods for computing a DUA weekly amount, provide that wages in the "13-week period immediately preceding the date of the disaster" shall be used to compute the DUA weekly amount

   20 CFR 625.6 (a) (2) provides that if the weekly amount computed under paragraph (a) (1) is less than the average weekly payment of regular compensation paid in the State, then, based on application of the individual's average weekly wages for the 13-week period immediately preceding the date of the disaster," a DUA weekly amount shall be computed and the individual shall receive the higher amount.

   20 CFR 625.6 (a) (3) is utilized whenever an individual is not entitled under Section 625.6 (a) (1). This Section provides that "the individual's weekly amount shall be determined by multiplying the hourly wage the individual earned or would have earned in weeks in the 13-week period immediately preceding the date of the disaster in employment or self-employment by the number of hours in the normal work week in such employment or self-employment."

   Instructions and examples, first in UIPL 16-78, dated January 24, 1977, and later in ET Handbook No. 356 (Chapter II), could be read to mean that the "date of the disaster" is the same as the "date the major disaster began." 20 CFR 625.2 (e) provides--" 'Date the major disaster began' means the date a major disaster first occurred, as specified in the understanding between the Federal Emergency Management Agency [FEMA] and the Governor of the State in which the major disaster occurred." This date is used to establish the "Disaster Assistance Period" beginning date as defined in 20 CFR 625.2 (f). Therefore, the referenced UIPL and Handbook imply that the 13-week period to be utilized for computations under Sections 625.6 (a) (2) and (3) is the 13-week period prior to the "date the major disaster began". Also, the examples convey that such date is used to determine application of the State law base period for purposes of computations under 20 CFR 625.6 (a) (1).

   In past Presidential major disaster declarations few problems were encountered in computing the DUA weekly amount by following the explanation and examples provided in the UIPL and Handbook, as separate declarations were made for each single disaster occurrence and individuals became unemployed on or near the "date the major disaster began".

   In the last year or so, however, FEMA has been amending a disaster declared for a particular incident when subsequent incidents occur or amending a declaration by adding additional jurisdictions (such as counties) when it determines such jurisdictions should be included because of the incident. "Incident" is defined in the FEMA regulations (44 CFR 206.32 (e)) to mean "any condition which meets the definition of major disaster or emergency ... which causes damage or hardship that may result in a Presidential declaration of a major disaster or emergency." These FEMA changes have resulted in an incident period lasting several weeks to months and individuals working several weeks or months after the "date the major disaster began" before they are affected by the disaster. "Incident period" is defined in the FEMA regulations (44 CFR 206.32 (f)) to mean "the time interval during which the disaster-causing incident occurs."

   Presidential declarations have also been made where the incident period beginning date was retroactive several weeks or months, but individuals only currently became unemployed. This result was vividly brought out in the retroactive Hawaii volcano declaration where the incident beginning date was more than 6 years prior to the declaration and no ending date was established because the incident was still occurring.

   In the case of amended declarations and retroactive beginning date declarations, utilizing the 13 weeks prior to the "date the major disaster began" is inequitable and restrictive. In fact, in the Hawaii disaster, many of the individuals only recently started work before being affected by the lava flow, ashes andor toxic gases and becoming unemployed. Hence, they could not qualify for DUA by utilizing any period prior to the "date the major disaster began" under the provisions of Sections 625.6 (a) (1), (2) or (3), as cited in the current instructions.

   Developments of the above nature have created the need for interpretation and definition of the phrase "date of the disaster" and application of such definition to the provisions related to the DUA weekly computation provided under 20 CFR 625.6.

4. Interpretation and Application. 

   1. Definition.  20 CFR 625.1 (b) provides that ". . . the Act and the implementing regulations in this part shall be construed liberally so as to carry out the purposes of the Act." Therefore, for purposes of 20 CFR 625.6, the phrase "date of the disaster," since it is not defined elsewhere, means the "date the major disaster began, or if later, the date the individual became unemployed".

      This clarification means the computation period utilized for each individual will be more similar to the "regular unemployment compensation" program administered by the State, wherein it is generally tied to the separation and claim filing date (establishment of a benefit year). For individuals who become unemployed months after the "date the major disaster began," it means more recent wages will be utilized in the computation of the DUA claim.

   2. Application.  The revised definition of "date of the disaster" conveyed in this UIPL means, for purposes of the DUA weekly computation, that the State law base period to be utilized in the DUA weekly computation under Section 625.6 (a) (1), is the base period for the "date the major disaster began, or if later, the date the individual became unemployed".

      As an example (for States having a first 4 of the last 5 completed quarters base period), if the "date the major disaster began" was September 15, 1991, and an individual became unemployed on that date, the base period for that individual would begin April 1, 1990, and end March 31, 1991. For an individual unemployed due to the same disaster on November 1, 1991, the base period would begin July 1, 1990, and end June 30, 1991.

      For purposes of computations under Sections 626.6 (a) (2) and (3), such computations would be made by utilizing the 13-week period beginning 13 complete weeks prior to the week in which the individual became unemployed. For example, if an individual became unemployed on November 1, 1991, the 13-week period would begin July 28, 1991 and end October 26, 1991. In accordance with 20 CFR 625.2 (v), "'Week' means a week as defined in the applicable State law."

   3. Limitation. The above interpretation and procedural applications do not change the beginning and ending date of the "Disaster Assistance Period". In accordance with Section 410 (a) of The Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5177) and defined at 20 CFR 625.2 (f), it must remain "the period beginning with the first week following the date the major disaster began, and ending with the 26th week subsequent to the date the major disaster was declared."

5. Action Required. SESA Administrators should communicate the contents of this UIPL to appropriate staff and ensure that these provisions are applicable for all Presidential disaster declarations occurring after the date of this issuance.

6. Inquiries. Inquiries should be addressed to the appropriate Regional Office.