Rule2024-00677
Individual Assistance Program Equity
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 22, 2024
Effective
March 22, 2024
Issuing agencies
Homeland Security DepartmentFederal Emergency Management Agency
Abstract
The Federal Emergency Management Agency (FEMA) is publishing this interim final rule (IFR) amending its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program.
Full Text
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[Federal Register Volume 89, Number 14 (Monday, January 22, 2024)]
[Rules and Regulations]
[Pages 3990-4125]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00677]
[[Page 3989]]
Vol. 89
Monday,
No. 14
January 22, 2024
Part II
Department of Homeland Security
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Federal Emergency Management Agency
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44 CFR Part 206
Individual Assistance Program Equity; Interim Final Rule
Federal Register / Vol. 89 , No. 14 / Monday, January 22, 2024 /
Rules and Regulations
[[Page 3990]]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID: FEMA-2023-0003]
RIN 1660-AB07
Individual Assistance Program Equity
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Interim final rule.
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SUMMARY: The Federal Emergency Management Agency (FEMA) is publishing
this interim final rule (IFR) amending its regulations governing the
Individual Assistance program to increase equity by simplifying
processes, removing barriers to entry, and increasing eligibility for
certain types of assistance under the program.
DATES:
Effective Date: This rule is effective March 22, 2024.
Applicability Date: This rule applies to Emergencies and Major
Disasters declared on or after March 22, 2024.
Comment Date: Comments must be received no later than July 22,
2024.
ADDRESSES: You may submit comments, identified by Docket ID: FEMA-2023-
0003, via the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Kristina McAlister, Federal Emergency
Management Agency, 500 C Street SW, Washington, DC 20472. Phone: 866-
826-8751 or email: <a href="/cdn-cgi/l/email-protection#4503000804680c0d1568152a292c263c05232028246b212d366b222a33"><span class="__cf_email__" data-cfemail="2a6c6f676b0763627a077a45464349536a4c4f474b044e4259044d455c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
III. Background
A. Individual Assistance
B. Impacts of Climate Change on Disaster Assistance
C. Equity in Individual Assistance
1. Income Project
2. Equity RFI--IA Program Equity Responses to Comments
D. Changes in Policy Positions To Increase Equity in IHP
1. Insurance Proceeds
2. Requirement To Apply for an SBA Loan Prior to Receipt of ONA
3. Home Repair Pre-Existing Conditions
4. Serious Needs and Displacement Assistance
IV. Discussion of the Interim Final Rule
A. Section 206.101--Temporary Housing Assistance for Emergencies
and Major Disasters Declared on or Before October 14, 2002
B. Section 206.110--Federal Assistance to Individuals and
Households
C. Section 206.111--Definitions
D. Section 206.112--Registration Period
E. Section 206.113--Eligibility Factors
F. Section 206.114--Criteria for Continued or Additional
Assistance
G. Section 206.115--Appeals
H. Section 206.117--Housing Assistance
I. Section 206.118--Disposal of Housing Units
J. Section 206.119--Financial Assistance To Address Other Needs
K. Section 206.131--Individual and Family Grant Program for
Major Disasters Declared on or Before October 14, 2002
L. Section 206.191--Duplication of Benefits
V. Regulatory Analyses
A. Administrative Procedure Act
B. Executive Order 12866, Regulatory Planning and Review;
Executive Order 13563, Improving Regulation and Regulatory Review;
and Executive Order 14094, Modernizing Regulatory Review
1. Need for Regulation
2. Affected Population
3. Baseline
4. Transfer Payments
5. Costs
6. Cost Savings
7. Total Net Costs
8. Benefits
9. Circular A-4 Accounting Statement, No-Action Baseline (2020$)
Table
10. Circular A-4 Accounting Statement, Pre-Guidance Baseline
(2020$) Table
11. Marginal Analysis Table
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. National Environmental Policy Act of 1969 (NEPA)
F. Paperwork Reduction Act of 1995
G. Privacy Act/E-Government Act of 2002
H. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
I. Executive Order 13132, Federalism
J. Executive Order 12630, Taking of Private Property
K. Executive Order 12898, Environmental Justice and Executive
Order 14096, Revitalizing Our Nation's Commitment to Environmental
Justice for All
L. Executive Order 12988, Civil Justice Reform
M. Executive Order 13045, Protection of Children From
Environmental Health Risks and Safety Risks
N. Executive Order 11988, Floodplain Management
O. Executive Order 11990, Protection of Wetlands
P. National Historic Preservation Act
Q. Endangered Species Act
R. Congressional Review of Agency Rulemaking
Table of Abbreviations
ADA--Americans with Disabilities Act
APA--Administrative Procedure Act
CATEX--Categorical Exclusions
CDBG-DR--Community Development Block Grant Disaster Recovery Program
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
CNA--Critical Needs Assistance
CPI-U--Consumer Price Index for All Urban Consumers
CRA--Congressional Review of Agency Rulemaking Act
CTHA--Continued Temporary Housing Assistance
DCM--Disaster Case Management
DHAP--Disaster Housing Assistance Program
DHS--Department of Homeland Security
DHS-OIG--Department of Homeland Security's Office of Inspector
General
DMA2K--Disaster Mitigation Act of 2000
DRC--Disaster Recovery Center
DRRA--Disaster Recovery Reform Act of 2018
EA--Environmental Assessment
EDW--Enterprise Data Warehouse
EIS--Environmental Impact Statement
ESA--Endangered Species Act
FCO--Federal Coordinating Officer
FDAA--Federal Disaster Assistance Administration
FEMA--Federal Emergency Management Agency
FIT--Failed Income Test
FmHA--Farmers Home Administration
FMR--Fair Market Rent
FVL--FEMA Verified Loss
FY--Fiscal Year
GAO--Government Accountability Office
GFIP--Group Flood Insurance Policy
GSA--U.S. General Services Administration
HA--Housing Assistance
HUD--U.S. Department of Housing and Urban Development
IA--Individual Assistance
IAPPG--Individual Assistance Program and Policy Guide
IFG--Individual and Family Grant Program
IFR--Interim Final Rule
IHP--Individuals and Households Program
IRS--Internal Revenue Service
JFO--Joint Field Office
LEP--Limited English Proficiency/Limited English Proficient
LER--Lodging Expense Reimbursement
LI--Lower Income
MLR--Multifamily Lease and Repair
NEMIS--National Emergency Management Information System
NEPA--National Environmental Policy Act of 1969
NFIA--National Flood Insurance Act of 1968, as Amended
NFIP--National Flood Insurance Program
NHPA--National Historic Preservation Act
NPRM--Notice of Proposed Rulemaking
OIG--Office of Inspector General
OMB--Office of Management and Budget
ONA--Other Needs Assistance
PHC--Permanent Housing Construction
PHP--Permanent Housing Plan
PIA--Privacy Impact Assessment
PKEMRA--Post-Katrina Emergency Management Reform Act of 2006
RA--Regional Administrator
RA--Rental Assistance
RFA--Regulatory Flexibility Act of 1980
RFI--Request for Information
RIA--Regulatory Impact Analysis
RPFVL--Real Property FEMA Verified Loss
SBA--Small Business Administration
SFHA--Special Flood Hazard Area
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SRIA--Sandy Recovery Improvement Act of 2013
Stafford Act--Robert T. Stafford Disaster Relief and Emergency
Assistance Act, as Amended
STT--State, Tribal, or Territorial
Treasury--U.S. Department of Treasury
TSA--Transitional Sheltering Assistance
USGCRP--U.S. Global Change Research Program
Welfare Reform Act--Title IV of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996
I. Public Participation
We encourage you to participate in this rulemaking by submitting
comments and related materials. We will consider all comments and
materials received during the comment period.
If you submit a comment, identify the agency name and the Docket ID
for this rulemaking, indicate the specific section of this document to
which each comment applies, and give the reason for each comment. All
submissions will be posted, without change, to the Federal e-Rulemaking
Portal at <a href="http://www.regulations.gov">www.regulations.gov</a> and will include any personal information
you provide. Therefore, submitting this information makes it public.
For more about privacy and the docket, visit <a href="https://www.regulations.gov/document?D=DHS-2018-0029-0001">https://www.regulations.gov/document?D=DHS-2018-0029-0001</a>.
Viewing comments and documents: For access to the docket to read
background documents or comments received, go to the Federal e-
Rulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
II. Executive Summary
The Federal Emergency Management Agency (FEMA) is publishing this
interim final rule (IFR) amending its regulations governing the
Individual Assistance program to increase equity by simplifying
processes, removing barriers to entry, and increasing eligibility for
certain types of assistance under the program. Specifically, the IFR
increases eligibility for home repair assistance by amending the
definitions and application of the terms safe, sanitary, and
functional, allowing assistance for certain accessibility-related
items, and amending its approach to evaluating insurance proceeds;
allows for the re-opening of the applicant registration period when the
President adds new counties to the major disaster declaration;
simplifies the documentation requirements for continued temporary
housing assistance; simplifies the appeals process; simplifies the
process to request approval for a late registration; removes the
requirement to apply for a Small Business Administration (SBA) loan as
a condition of eligibility for Other Needs Assistance (ONA); and
establishes additional eligible assistance under ONA for serious needs,
displacement, disaster-damaged computing devices and essential tools
for self-employed individuals. FEMA also makes revisions to reflect
changes to statutory authority that have not yet been implemented in
regulation, to include provisions for utility and security deposit
payments, lease and repair of multifamily rental housing, child care
assistance, maximum assistance limits, and waiver authority.
III. Background
A. Individual Assistance
FEMA is responsible for administering and coordinating the Federal
Government response to Presidentially declared disasters pursuant to
the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as
amended (Stafford Act), Public Law 93-288, 42 U.S.C. 5121 et seq. When
a catastrophe occurs in a State or affects the members of a Tribal
community, the State's Governor or Tribal Chief Executive may request a
Presidential declaration of a major disaster pursuant to Section 401 of
the Stafford Act. 42 U.S.C. 5170(a), (b); 44 CFR 206.36(a). Such a
request must be based on a finding that the disaster is of such
severity and magnitude that an effective response is beyond the
capabilities of the State or Tribal government and the affected local
governments and that Federal assistance is necessary. 42 U.S.C. 5170.
The President's declaration of a disaster will designate the areas
within a State, or for an Indian Tribal government, where Federal
assistance may be made available (including local governments such as
counties, parishes, or Tribal lands, if appropriate) and identify the
types of assistance that are authorized under the declaration, 44 CFR
206.40(a), although other types may be authorized later, 44 CFR
206.40(c). A major disaster declaration may authorize all, or only
particular types of, supplemental Federal assistance requested by the
Governor or Tribal Chief Executive. 44 CFR 206.40(a).
One of those types is ``Federal Assistance to Individuals and
Households'' governed by section 408 of the Stafford Act, which
authorizes FEMA to provide financial assistance and direct services to
individuals and households who, as a direct result of a major disaster,
have necessary expenses and serious needs in cases in which the
individuals and households are unable to meet such expenses or needs
through other means. 42 U.S.C. 5174. FEMA refers to this assistance as
the Individuals and Households Program (IHP).
Section 408 categorizes IHP into two provisions of assistance:
Housing Assistance (HA) and ONA. Housing Assistance is available for
individuals and households who are displaced from their pre-disaster
primary residences \1\ or whose pre-disaster residences are rendered
uninhabitable or, for individuals with disabilities, inaccessible or
uninhabitable, as a result of damage caused by a major disaster. 42
U.S.C. 5174(b). FEMA may provide those individuals: (1) temporary
housing assistance in the form of financial assistance (funds provided
to an individual to reimburse for hotels, motels, or other short-term
lodging (referred to as Lodging Expense Reimbursement, or LER) or to
rent alternate housing accommodations while the individual is displaced
from their primary residence) or direct assistance (FEMA may provide
the individual temporary housing units or FEMA may lease and repair
multifamily rental properties (referred to as Multifamily Lease and
Repair, or MLR) for the purpose of housing individuals); (2) financial
assistance to repair owner-occupied private residences, utilities, and
residential infrastructure damaged by a major disaster to a safe and
sanitary living or functioning condition (referred to as home repair
assistance); (3) financial assistance to replace owner-occupied private
residences damaged by a major disaster (referred to as home replacement
assistance); and (4) in rare circumstances, financial or direct
assistance to construct permanent or semi-permanent housing (referred
to as Permanent Housing Construction, or PHC). 42 U.S.C. 5174(c).
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\1\ Per 44 CFR 206.111 ``primary residence'' means the dwelling
where the applicant normally lives, during the major portion of the
calendar year; or the dwelling that is required because of proximity
to employment, including agricultural activities, that provide 50
percent of the household's income. Home Repair Assistance and Home
Replacement Assistance are not available for non-traditional forms
of housing that do not have structural elements to assess and
calculate a repair or replacement award (e.g., tents). By policy,
FEMA defines non-traditional housing as a form of dwelling void of
structural floor, structural walls, and structural roof. See page 62
of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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ONA is financial assistance FEMA makes available to individuals and
households adversely affected by a disaster to address their necessary
expenses and serious needs.\2\ FEMA
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awards two types of ONA: SBA-dependent, which provides assistance for
personal property, transportation, and Group Flood Insurance Policies
(GFIPs); and non SBA-dependent ONA, which provides funeral assistance,
medical and dental assistance, childcare assistance, moving and storage
assistance, critical needs assistance, cleaning and sanitizing
assistance as well as assistance for miscellaneous items.\3\ To obtain
SBA-dependent ONA, FEMA currently requires individuals above a certain
income level, as identified in SBA-provided income test tables, to
apply for a disaster loan from SBA; SBA-dependent ONA includes Personal
Property Assistance, Transportation Assistance, and GFIP.\4\ If those
individuals were denied for a loan by the SBA or the amount received
did not satisfy their total necessary expenses, FEMA could provide them
with assistance for SBA-dependent types of ONA. Prior to this rule's
revisions, these provisions were located in 44 CFR 206.119(a). FEMA did
not require application to the SBA for individuals below the relevant
income threshold or for other types of ONA.\5\
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\2\ 42 U.S.C. 5174(e).
\3\ See page 146 of FEMA Policy (FP) 104-009-03, Individual
Assistance Program and Policy Guide, Version 1.1 (IAPPG 1.1).
<a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
\4\ Applicants whose pre-disaster home was located in a Special
Flood Hazard Area and received assistance for insurable flood
damaged real or personal property may be considered for a FEMA-
purchased GFIP certificate, which provides 3 years of flood
insurance coverage.
\5\ The SBA provides FEMA with the relevant income threshold
information on a yearly basis. The income threshold used is
determined by the individual's household situation and accounts for
where the individual resides and the number of dependents living in
the household.
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As detailed further below, section 1212 of the Disaster Recovery
Reform Act of 2018, Public Law 115-254, 132 Stat. 3448 (Oct. 5, 2018)
amended Section 408(h) to establish separate caps for each category of
assistance. Currently, the maximum amount of IHP HA and ONA financial
assistance for any single emergency or major disaster is $42,500.\6\
These financial caps do not apply to the provision of financial
assistance to rent alternate housing accommodations or necessary
expenses for individuals with disabilities. 42 U.S.C. 5174(h).\7\ The
Federal cost-share under IA is 100 percent for HA and 75 percent for
ONA (with the State responsible for the 25 percent non-Federal share).
42 U.S.C. 5174(g).
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\6\ See 88 FR 72520, Oct. 20, 2023. Section 408 caps the amount
of assistance individuals may receive under IA for HA to $25,000 and
for ONA to $25,000. These caps are adjusted annually to reflect
changes in the Consumer Price Index for All Urban Consumers (CPI-U)
published by the Department of Labor.
\7\ DRRA amended this section to exclude financial housing
assistance and necessary expenses for individuals with disabilities
from those caps.
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FEMA may only provide housing assistance for a period not to exceed
18 months from the date of the major disaster declaration, although it
may extend this period of assistance if it determines that due to
extraordinary circumstances an extension would be in the public
interest. 42 U.S.C. 5174(c)(1)(B)(iii); 44 CFR 206.110(e). FEMA is
required to ensure it has systems in place to allow it to verify the
identity and address of recipients for assistance, minimize the risk of
making duplicate or fraudulent payments, collect any duplicate
payments, provide instructions to individuals detailing the proper use
of assistance, and conduct an expedited and simplified review and
appeal process for individuals denied assistance. 42 U.S.C. 5174(i).
FEMA is required to ensure that the disaster assistance it provides
is not a duplication of benefits with any other program or from
insurance or any other source. 42 U.S.C. 5155(a). FEMA has set forth a
regulatory delivery sequence at 44 CFR 206.191(d) which was further
clarified in its Individual Assistance Program and Policy Guide (IAPPG)
\8\ to establish the order in which disaster relief agencies and
organizations provide assistance to disaster survivors and ensure its
assistance does not result in a prohibited duplication of benefits.
Currently, the delivery sequence is, in order of delivery: (i)
Volunteer Agencies and Mass Care; (ii) Insurance; (iii) FEMA Housing
Assistance; \9\ (iv) FEMA/State/Territory/Tribal Government ONA; \10\
(v) SBA Income Evaluation (Repayment Capability) which will either
result in an SBA referral or FEMA/State ONA; \11\ and (vi) Unmet
Needs--Volunteer Agencies.\12\
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\8\ See page 10 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
\9\ This includes both financial and direct Housing Assistance.
For financial, this encompasses Lodging Expense Reimbursement,
Rental Assistance, Repair Assistance, and Replacement Assistance,
and for direct, this includes Multifamily Lease and Repair,
Transportable Temporary Housing Units, Direct Lease, and Permanent
Housing Construction.
\10\ This includes the following types of non-SBA-dependent ONA:
Funeral Assistance, Medical and Dental Assistance, Child Care
Assistance, Moving and Storage Assistance, Assistance for
Miscellaneous Items, and, under this rule, Critical Needs Assistance
and Clean and Sanitize Assistance.
\11\ SBA-dependent ONA includes Personal Property Assistance,
Transportation Assistance, and Group Flood Insurance Policy.
\12\ See page 10 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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B. Impacts of Climate Change on Disaster Assistance
Climate change--changes in the average or variability of weather
conditions that persist over long time scales (e.g., multiple decades
or longer) \13\--and related global changes can threaten human health;
the economy; the built environment; and the natural world, including
wildlife, plants, and the ecosystems upon which they rely.\14\ Many
scientists, governments, and organizations have researched climate
change, documented its experienced effects, projected potential
effects, and undertaken activities to respond to it.\15\ Scientists
have demonstrated the effects of climate change are already realized
around the world, and they project that climate changes will intensify
in future decades.\16\
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\13\ C.R.S. Rep 46694, Climate Change Adaptation: Department of
the Interior, at 1 (2021) available at <a href="https://crsreports.congress.gov/product/pdf/R/R46694">https://crsreports.congress.gov/product/pdf/R/R46694</a>; for example, see
definitions of climate and climate change at U.S. Global Change
Research Program (USGCRP), ``Glossary,'' at <a href="https://www.globalchange.gov/climate-change/glossary">https://www.globalchange.gov/climate-change/glossary</a>, and Intergovernmental
Panel on Climate Change, ``Definition of Terms Used Within the Data
Distribution Centre: Glossary,'' at <a href="https://www.ipcc-data.org/guidelines/pages/glossary/glossary_c.html">https://www.ipcc-data.org/guidelines/pages/glossary/glossary_c.html</a>. This report does not
address the causes of multidecadal climate change. For a discussion
of climate change science, see CRS Report R43229, Climate Change
Science: Key Points, by Jane A. Leggett. For additional background
on climate change, see CRS In Focus IF11446, Weather and Climate
Change: What's the Difference? by Jane A. Leggett.
\14\ Alexa Jay et al., ``Overview,'' in Impacts, Risks, and
Adaptation in the United States: Fourth National Climate Assessment,
vol. II, eds. David Reidmiller et al. (Washington, DC: U.S. USGCRP,
2018), pp. 33-71 (hereinafter, assessment cited as Reidmiller et
al., Impacts, Risks, and Adaptation).
\15\ For example, the USGCRP is a Federal program mandated by
Congress through P.L. 101-606 with the stated purpose of developing
and coordinating ``a comprehensive and integrated United States
research program which will assist the Nation and the world to
understand, assess, predict, and respond to human-induced and
natural processes of global change.'' For more information, see
USGCRP, ``About USCGRP,'' at <a href="https://www.globalchange.gov/about">https://www.globalchange.gov/about</a>. The
IPCC ``is the United Nations body for assessing the science related
to climate change'' (IPCC, ``About the IPCC,'' at <a href="https://www.ipcc.ch/about/">https://www.ipcc.ch/about/</a>).
\16\ For example, see IPCC, ``Synthesis Report of the IPCC Sixth
Assessment Report (AR6), Summary for Policymakers'' at 4-6, 12-13
(Mar. 20, 2023), <a href="https://www.ipcc.ch/report/sixth-assessment-report-cycle/">https://www.ipcc.ch/report/sixth-assessment-report-cycle/</a>; Economic Report of the President at 275, 280, 282-84 (March
2023), <a href="https://www.whitehouse.gov/wp-content/uploads/2023/03/ERP-2023.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/03/ERP-2023.pdf</a>.
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The issue of climate change impacts and implementing solutions is
incredibly challenging and complex. Climate change poses a direct
threat to the security of our Nation in the form of increasingly severe
and unpredictable storms, flooding, and wildfires that
disproportionately impact some of
[[Page 3993]]
America's most vulnerable communities.\17\ Climate change disasters,
such as heatwaves, can take place over longer time scales or broader
geographic areas than other more acute disruptions. Other impacts, such
as ``nuisance flooding'' are less intense but more chronic. This
requires us to think differently about emergency response.\18\
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\17\ Fourth National Climate Assessment, Volume II: Impacts,
Risks, and Adaptation in the United States, <a href="https://nca2018.globalchange.gov/#sf-2">https://nca2018.globalchange.gov/#sf-2</a>.
\18\ DHS Strategic Framework for Addressing Climate Change (Oct.
21, 2021), <a href="https://www.dhs.gov/sites/default/files/publications/dhs_strategic_framework_10.20.21_final_508.pdf">https://www.dhs.gov/sites/default/files/publications/dhs_strategic_framework_10.20.21_final_508.pdf</a>.
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The Nation is no stranger to historic and costly hurricane seasons.
The 2017 Atlantic hurricane season was one of the most active in U.S.
history; between April and November, there were 17 named storms, with
10 becoming hurricanes.\19\ As of October 9, 2017, FEMA received more
applications for the Individuals and Households Program than in
hurricanes Katrina, Rita, Wilma and Sandy combined. By November 30,
2017, FEMA registered more than 4.7 million households for the
Individuals and Households Program.\20\ These hurricanes were
accompanied by devastating wildfires in California that burned for
months. The President's 2023 Economic Report \21\ recounts that
Hurricane Ian struck Florida in September 2022, causing a coastal storm
surge of up to 18 feet and widespread inland flooding; it will end up
being one of the costliest storms on record, with losses to residential
and commercial property estimated at between $36 billion and $62
billion.\22\ Climate change has elevated the need for the delivery of
efficient disaster services and increased the need for IHP assistance,
particularly for socially vulnerable populations, which are
disproportionately impacted.\23\ In response and in a step towards
equity, the regulatory changes in this rule seek to add efficiency in
the delivery of assistance to survivors by simplifying processes,
removing barriers to entry, and increasing eligibility for certain
types of assistance under the program. For example, the changes seek to
streamline documentation requirements, thus easing entry into the
Individuals and Households Program. Each regulatory change to follow is
influenced by the growing emergency needs of citizens across the
Nation, which has meant the trend of growing FEMA participation and
responsibility for response.
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\19\ 2017 Hurricane Seasons FEMA After-Action Report, at v (July
12, 2018), 2017 Hurricane Season FEMA After-Action Report.
\20\ 2017 Hurricane Seasons FEMA After-Action Report, at 39
(July 12, 2018), 2017 Hurricane Season FEMA After-Action Report.
\21\ See Economic Report of the President at 282 (March 2023),
<a href="https://www.whitehouse.gov/wp-content/uploads/2023/03/ERP-2023.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/03/ERP-2023.pdf</a>.
\22\ CoreLogic, ``CoreLogic Analysis Shows Final Estimated
Insured and Uninsured Damages for Hurricane Ian to Be Between $41
Billion and $70 Billion'' (2022), <a href="http://www.corelogic.com/press-releases/corelogic-analysis-shows-final-estimated-insured-and-uninsured-damages-for-hurricane-ian-to-be-between-41-billion-and-70-billion/">www.corelogic.com/press-releases/corelogic-analysis-shows-final-estimated-insured-and-uninsured-damages-for-hurricane-ian-to-be-between-41-billion-and-70-billion/</a>.
Paquette, D., and M. Kornfield, ``Ian Is Florida's Deadliest
Hurricane Since 1935; Most Victims Drowned'' (Oct. 5, 2022), <a href="https://www.washingtonpost.com/nation/2022/10/05/hurricane-ian-florida-victims/">https://www.washingtonpost.com/nation/2022/10/05/hurricane-ian-florida-victims/</a>.
\23\ See, e.g., EPA, Climate Change and Social Vulnerability in
the United States: A Focus on Six Impacts, (September 2021), <a href="https://www.epa.gov/cira/social-vulnerability-report">https://www.epa.gov/cira/social-vulnerability-report</a>. The EPA's report
analyzed four socially vulnerable groups: low income, minority, no
high school diploma, and 65 or older. See Id. at 4, Table ES.1--
Socially Vulnerable Groups Analyzed in this Report.
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Presently coastal areas globally face land loss, repeat flooding,
and storm surges, affecting coastal populations.\24\ Extreme weather
events are increasing in intensity as well as frequency.\25\ Sustained
changes in climate have exacerbated the physical risks and threats
coastal communities are exposed to every day.
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\24\ Maldonado, J., Wang, I.F.C., Eningowuk, F. et al.
Addressing the challenges of climate-driven community-led
resettlement and site expansion: knowledge sharing, storytelling,
healing, and collaborative coalition building, J Environ Stud Sci
11, 294-304 (2021), <a href="https://doi.org/10.1007/s13412-021-00695-0">https://doi.org/10.1007/s13412-021-00695-0</a>.
\25\ Maldonado, J., Wang, I.F.C., Eningowuk, F. et al,
Addressing the challenges of climate-driven. community-led
resettlement and site expansion: knowledge sharing, storytelling,
healing, and collaborative coalition building, J Environ Stud Sci
11, 294-304 (2021), <a href="https://doi.org/10.1007/s13412-021-00695-0">https://doi.org/10.1007/s13412-021-00695-0</a>.
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As climate change threatens to bring more extreme events like
increased floods, sea level rise, and intensifying droughts and
wildfires, is our responsibility to better prepare and support
communities, families, and businesses before, during, and after
disasters. Here, in light of the increasing climate-related disasters
facing the Nation, FEMA issues amendments to the Individuals and
Households Program to ensure that it meets the increasing need for
assistance to individuals and families recovering from disasters.
C. Equity in Individual Assistance
1. Income Project
There have been numerous assertions over the years that IHP
disproportionately benefits higher income households over lower income
households.\26\ In 2019, FEMA undertook an analysis to determine if
this was true (Income Project).\27\ FEMA analyzed 5 years of disaster
data (January 1, 2014-December 31, 2018) which comprised 4.8 million
registrations.
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\26\ See The Hill, Disaster Housing Recovery: Time for Congress
to Act (November, 26, 2018) (``FEMA consistently creates barriers
that prevent low-income people from receiving assistance . . . FEMA
is unwilling and incapable of handling the housing needs of low-
income disaster survivors,'') <a href="https://thehill.com/opinion/civil-rights/418175-disaster-housing-recovery-time-for-congress-to-act">https://thehill.com/opinion/civil-rights/418175-disaster-housing-recovery-time-for-congress-to-act</a>
(last visited Nov. 29, 2021); Texas Housers, Low-income Households
Disproportionately Denied by FEMA is a Sign of a System that is
Failing the Most Vulnerable (November 30, 2018) (``Homeowner
households with fewer financial resources were more likely to be
denied FEMA assistance after Harvey,'') <a href="https://texashousers.org/2018/11/30/low-income-households-disproportionately-denied-by-fema-is-a-sign-of-a-system-that-is-failing-the-most-vulnerable/">https://texashousers.org/2018/11/30/low-income-households-disproportionately-denied-by-fema-is-a-sign-of-a-system-that-is-failing-the-most-vulnerable/</a> (last
visited Nov. 29, 2021); NPR, How Federal Disaster Money Favors the
Rich (March 5, 2019) (``Disasters, and the federal aid that follows,
disproportionately benefit wealthier Americans'') <a href="https://www.npr.org/2019/03/05/688786177/how-federal-disaster-money-favors-the-rich">https://www.npr.org/2019/03/05/688786177/how-federal-disaster-money-favors-the-rich</a> (last visited Nov. 29, 2021).
\27\ FEMA, Individuals & Households Program Survivor Income
Analysis (2019) and Survivor Income Analysis: Phase 2--Drivers of
variance in IHP assistance across income groups (2019). See
Supporting & Related Material tab on <a href="http://www.regulations.gov">www.regulations.gov</a> under
Docket ID: FEMA-2023-0003.
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In July 2019, FEMA completed Phase 1 of the project.\28\ Phase 1
results showed that of the FEMA registrants during that time period, 62
percent were ``lower income,'' 10 percent were ``middle income,'' and
28 percent were ``higher income.'' \29\ FEMA concluded generally that
lower income households were more likely to receive an award, or, in
other words, have a higher award rate under the Individuals and
Households Program, but that the average award amount was lower for
those households than for higher income households.
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\28\ For Phase 1 of the Income Project, the average repair/
replacement award size for lower income owners is $2,165 while the
average award size for higher income owners is $4,139. For Personal
Property Assistance, the average award size for lower income owners
is $819, while the average award size for higher income owners
$2,093. For Personal Property Assistance, the average award size for
lower income renters is $900, while the average award size for
higher income renters is $2,110.
\29\ FEMA, Individuals & Households Program Survivor Income
Analysis (2019) and Survivor Income Analysis: Phase 2--Drivers of
variance in IHP assistance across income groups (2019). See
Supporting & Related Material tab on <a href="http://www.regulations.gov">www.regulations.gov</a> under
Docket ID: FEMA-2023-0003. FEMA defines Lower income as a
combination of low, very low, and extremely low-income. As defined
by HUD, Extremely Low income means Income at or below the national
poverty threshold or 30% of the Area Median Income, whichever is
less; Very Low income means Income between >30% and 50% of AMI; and
Low Income means Income between >50% and 80% of AMI. (See Page 5 of
the Income Analysis).
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The data proved to be more varied at the assistance type level.
FEMA compared the rate of applicants referred to IHP for further
consideration,\30\ award
[[Page 3994]]
rates, and award amounts of lower income households to higher income
households for home repair/replacement financial assistance, rental
housing financial assistance, personal property financial assistance,
direct housing assistance, and transitional shelter assistance.
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\30\ The term ``referred to IHP'' reflects terminology FEMA uses
in the implementation of IHP. Applicants fill out registrations and
their answers will determine some threshold eligibility factors and
what types of assistance they may need or what unmet needs they
have. At that point, the eligible applications are routed to the
FEMA employees who process each type of assistance to make further
eligibility determinations.
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The data received indicates that lower income households were
referred for assistance at a higher rate than were higher income
households for all types of assistance except direct housing but were
awarded assistance in lower amounts for repair and replacement
assistance and personal property. Specifically, FEMA found the
following:
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\31\ This represents ``10 times'' or ``10x more likely'' when it
comes to personal property referrals for lower income applicants.
\32\ The original analysis did not include a specific breakdown
for Transitional Sheltering Assistance (TSA) referral rates, but
FEMA believes the rate to be in line with referral rates for non-
lower-income TSA applicants.
[GRAPHIC] [TIFF OMITTED] TR22JA24.000
In November 2019, FEMA completed Phase 2 of the project in which it
focused on additional analysis of the data to determine the cause of
the variance in results between lower and higher income applicants.
FEMA found that: (1) higher income households were less likely to
receive an award for home repair/replacement assistance because they
were more likely to have insurance which covered their losses; (2)
lower income households received lower award amounts for home repair/
replacement because they had lower Real Property FEMA Verified Loss
(RPFVL),\33\ smaller homes, and were more likely to live in mobile
homes which may be smaller or less expensive than non-mobile homes; (3)
lower income households were less likely to receive an award for rental
assistance because they were more likely to be found ineligible as a
result of their home being habitable than higher income households; (4)
lower income households were less likely to be eligible for personal
property assistance, but the results were inconclusive and FEMA could
not identify the primary driver of the difference; (5) lower income
households were likely to have a lower award amount for personal
property assistance but FEMA could not account for the reason why,
although home size might be a factor; and (6) using a RPFVL per square
foot threshold instead of a flat RPFVL threshold for direct housing
would increase the proportion of lower income owners and decrease the
proportion of higher income owners who qualified for direct
housing.\34\
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\33\ RPFVL is the total dollar amount of IHP eligible disaster-
caused damage to real property as verified by FEMA.
\34\ For more information on FEMA's Direct Housing Assistance
see page 93 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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2. Equity RFI--IA Program Equity Responses to Comments
On January 20, 2021, President Joseph R. Biden signed Executive
Order 13985, ``Advancing Racial Equity and Support for Underserved
Communities \35\ Through the Federal Government.'' \36\ On January 20,
2021, President Joseph R. Biden signed Executive Order 13990,
``Protecting Public Health and the Environment and Restoring Science To
Tackle the Climate Crisis.'' \37\ On January 27, 2021, President Joseph
R. Biden signed Executive Order 14008, ``Tackling the Climate Crisis at
Home and Abroad.'' \38\ And, on February 16, 2023, President Joseph R.
Biden signed Executive Order 14091, ``Further Advancing Racial Equity
and Support for Underserved Communities Through the Federal
Government.'' \39\
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\35\ Section 2.b. of Executive Order 13985 defines ``underserved
communities'' as populations sharing a particular characteristic, as
well as geographic communities, that have been systematically denied
a full opportunity to participate in aspects of economic, social,
and civic life, as exemplified by the list in the definition of
``equity.'' Section 10.a. of Executive Order 14091 defines
``equity'' to mean the consistent and systematic treatment of all
individuals in a fair, just, and impartial manner, including
individuals who belong to communities that often have been denied
such treatment, such as Black, Latino, Indigenous and Native
American, Asian American, Native Hawaiian, and Pacific Islander
persons and other persons of color; members of religious minorities;
women and girls; LGBTQI+ persons; persons with disabilities; persons
who live in rural areas; persons who live in United States
Territories; persons otherwise adversely affected by persistent
poverty or inequality; and individuals who belong to multiple such
communities.
\36\ E.O. 13985, ``Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government,'' 86 FR
7009, Jan. 25, 2021.
\37\ E.O. 13990, ``Protecting Public Health and the Environment
and Restoring Science to Tackle the Climate Crisis,'' 86 FR 7037,
Jan. 25, 2021.
\38\ E.O. 14008, ``Tackling the Climate Crisis at Home and
Abroad,'' 86 FR 7619, Feb. 1, 2021.
\39\ E.O. 14091, ``Further Advancing Racial Equity and Support
for Underserved Communities Through the Federal Government.''88 FR
10825, Feb. 22, 2023.
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Consistent with those Executive Orders and to gain additional
information on the issues identified in the 2019 income project, on
April 22, 2021, FEMA published a Request for Information (RFI) on FEMA
Programs, Regulations, and Policies.\40\ FEMA sought public input on
its programs, regulations, collections of information, and policies for
the agency to ensure that its programs, regulations, and policies
contain necessary, properly tailored, and up-to-date requirements that
effectively achieve FEMA's mission in a manner that furthers the goals
of advancing equity for all, including those in underserved
communities; bolstering resilience from the impacts of climate change,
particularly for those disproportionately impacted by climate change;
and environmental justice.
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\40\ 86 FR 21325, Apr. 22, 2021.
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FEMA held public meetings and extended the comment period on the
RFI to ensure all interested parties had sufficient opportunity to
provide comments on FEMA's programs.\41\ All relevant comments received
in response to the request for information, including those received
during the public
[[Page 3995]]
meetings, have been posted to the public rulemaking docket on the
Federal eRulemaking portal at <a href="https://www.regulations.gov/document/FEMA-2021-0011-0001/comment">https://www.regulations.gov/document/FEMA-2021-0011-0001/comment</a>.
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\41\ See ``Request for Information on FEMA Programs,
Regulations, and Policies; Public Meetings; Extension of Comment
Period,'' 86 FR 30326, June 7, 2021.
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Comments on the RFI that are relevant to the IHP issues addressed
in this rule are discussed below. Comments regarding other IA programs
outside of IHP, such as Disaster Legal Services, other FEMA program
areas, such as Public Assistance, or that were otherwise not directly
relevant to this rule, are not discussed.
Registration Period
A few commenters raised issues regarding the registration deadline
for FEMA programs, arguing that the current deadline posed difficulties
for applicants--particularly for applicants from underserved
populations--and should be extended.\42\ One commenter stated
applicants may have a wide variety of valid reasons for registering
late and that requiring documentation to justify the late filing is
inappropriate and unnecessary.\43\ This commenter requested all
registrations received during the post-deadline grace period be
accepted without additional documentation.\44\ Another commenter
recommended removing the registration deadline altogether, saying that
it was arbitrary and discouraged disaster survivors from
registering.\45\ This commenter also noted that disaster survivors may
not realize they need assistance immediately and that even once they
do, it may be difficult for them to meet the registration deadlines due
to the impacts of a disaster, such as being displaced or losing
telephone service. Finally, this commenter argued that FEMA should not
impose a registration deadline that ends before the period of
assistance for the disaster ends.
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\42\ FEMA-2021-0011-0149, FEMA-2021-0011-0236, FEMA-2021-0011-
0277, and FEMA-2021-0011-0295.
\43\ FEMA-2021-0011-0149.
\44\ The commenter referred to a 30-day grace period after the
registration period, but as described below, FEMA actually accepts
late applications for 60 days following the close of the
registration period.
\45\ FEMA-2021-0011-0295.
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We do not agree that a registration deadline discourages disaster
survivors from registering. Rather, it provides clear submission
timeframes to help disaster applicants.
FEMA's regulations, at 44 CFR 206.112, provide that the standard
registration period is 60 days following the date that the President
declares an incident a major disaster or an emergency. FEMA may extend
the registration period when the State \46\ requests more time to
collect registrations from the affected population. FEMA may also
extend the standard registration period when necessary to establish the
same registration deadline for contiguous counties or States. After the
standard or extended registration period ends, FEMA accepts late
registrations for an additional 60 days. FEMA processed late
registrations for registrants that provided suitable documentation \47\
to support and justify the reason for the delay in their registration.
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\46\ To improve readability, the term ``State'' will be used in
this rule to refer to State, Tribal, and Territorial governments, as
applicable. Where there are relevant differences in how these
governments are treated under the Stafford Act or FEMA's
regulations, they will be explained in more detail.
\47\ Page 71 of IAPPG 1.1 discusses late applications and the
types of acceptable information FEMA required in order for the late
application to be considered. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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FEMA required the applicant to submit a letter, signed by the
applicant or person who the applicant authorizes to act on their
behalf, explaining the extenuating circumstances that prevented them
from applying for assistance in a timely manner. Acceptable
documentation included record of hospitalization, illness, or
disability of the applicant or an immediate family member; record of
death for an immediate family member; or proof of personal or business
travel that kept the applicant out of the area for the full
registration period.\48\
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\48\ See page 71 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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Based on comments indicating that the level of documentation
required to justify a late application is inappropriate and
unnecessary, FEMA is removing the requirement to provide documentation.
FEMA agrees that the late application process should be simplified to
reduce the burden on disaster survivors. Therefore, under this rule,
FEMA will only require that registrants explain the reason for the
delay. This change is discussed in more detail in the section-by-
section analysis, below.
FEMA believes these changes are needed to the current regulations
to allow individual applicants to more easily submit a late
application, but the regulations are generally sufficient to ensure the
majority of disaster survivors have an adequate opportunity to register
for assistance during the registration period. FEMA reaches out to
survivors and communities after disasters using multiple tools, teams,
and tactics to help applicants register for assistance, to include
placing staff who can register applicants in disaster impacted areas
and shelters.\49\ Although disaster survivors may face a range of
challenges in applying for assistance, the initial 60-day period is
generally sufficient for most disasters, and for those specific
disasters where there may be additional difficulties with timely
filing, FEMA may extend the period. Increasing the default registration
period or removing limits on registration altogether could lead to more
applicants filing late, slowing the delivery of assistance, and
increasing the administrative burden for FEMA in processing those
applications.\50\ The flexibility to extend the registration period on
a disaster-by-disaster basis as appropriate allows FEMA to avoid
unnecessary delays in program administration while still giving
applicants additional time when needed, is why the registration period
is not arbitrary.
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\49\ For more information see FEMA in the Field: Disaster
Survivor Assistance and Disaster Recovery Centers, <a href="https://www.fema.gov/fact-sheet/fema-field-disaster-survivor-assistance-and-disaster-recovery-centers">https://www.fema.gov/fact-sheet/fema-field-disaster-survivor-assistance-and-disaster-recovery-centers</a>. FEMA currently provides letters in
English and Spanish. FEMA recently updated our English and Spanish
letters to include a tagline in six languages informing applicants
how to contact the Helpline for translation help. The six languages
are: English, Spanish, Russian, Portuguese, Vietnamese, and Korean.
FEMA knows which language to provide letters in based on the
language that the Disaster Survivor selected on their Disaster
Assistance Registration.
\50\ In response to a disaster declaration, FEMA scales up its
resources including individuals working the FEMA Helpline,
inspectors deploying to the field to conduct damage assessments, and
staff deploying to the field to assist the Region and State in
disaster recovery. Often, these individuals will staff Disaster
Recovery Centers (DRCs), which are locations where individuals may
register for assistance, ask questions about their application,
provide documentation, etc. to FEMA or other government
representatives in person. Removing a registration timeframe or
increasing it beyond the current periods established in the
regulations would increase the amount of time staff would need to be
deployed in these various roles.
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Data shows that over the last 10 years, the registration period was
extended past the initial 60 days authorized in 44 CFR 206.112(a) in 42
percent of Individual Assistance (IA) declarations. In 44 CFR
206.112(b), FEMA still retains the ability to extend the registration
period on an as-needed basis. FEMA, in coordination with a State,
Tribal, or Territorial (STT) government, can extend the registration
period when there are wide-spread obstacles that may delay or impede
disaster survivors' ability to register, while maintaining the
authority to accept late registrations from disaster survivors who may
have specific, individual circumstances that impact their opportunity
to register.
[[Page 3996]]
Accessibility, Language Access, and Effective Communication With People
With Disabilities
Numerous commenters provided general statements about improving
applicant access to FEMA assistance and the necessity for improving
FEMA staff training to assist with language and accessibility needs
across programs. Eight of these comments raised concerns about
applicant accessibility within FEMA's IHP. Five commenters reasoned
that FEMA must improve its communication access for applicants who have
a primary language other than English with Limited English Proficiency
(LEP),\51\ as well as applicants with low-literacy and those with a
disability who use another form of communication (e.g., American Sign
Language). These commenters stated that FEMA must provide effective
translation or local FEMA employees that speak the applicant's language
and can effectively explain the IHP process, as well as provide
multilingual staff that can answer applicant questions during
inspections, throughout registration intake, and in-person at DRCs.
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\51\ FEMA-2021-0011-0149, FEMA-2021-001-0164, FEMA-2021-0011-
0261, FEMA-2021-0011-0282, and FEMA-2021-0011-0313.
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Five commenters questioned FEMA's ability to adequately identify
and meet the reasonable accommodation and reasonable modification needs
of applicants with disabilities across the IHP service delivery
process.\52\ These commenters reasoned that FEMA failed to establish a
clear and transparent public process for survivors to request
reasonable accommodations and reasonable modifications. One commenter
stated that even if a disaster survivor has requested an accommodation
or a modification, FEMA has no system to indicate that they are a
survivor with a disability or that they need an accommodation or a
modification other than another undifferentiated note in their
file.\53\ Commenters explained that, consequently, these requests do
not automatically populate across IHP, so FEMA staff are often unaware
of an applicant's previously documented accommodation, modification, or
access need. They argued that this lack of planning and transparency
denies meaningful access to survivors with disabilities and inhibits
their ability to access reasonable accommodations and reasonable
modifications within all aspects of IHP.
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\52\ FEMA-2021-0011-0152, FEMA-2021-0011-0164, FEMA-2021-0011-
0167, FEMA-2021-0011-0205, and FEMA-2021-0011-0313.
\53\ FEMA-2021-0011-0152.
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Two commenters stated that IHP did not provide allowances for the
inclusion of accessibility-related items for pre-existing or disaster
acquired disabilities. These commenters asserted that disaster
survivors with physical disabilities who require accommodations or
modifications to access their home in the wake of a disaster should
receive timely assistance to repair their homes.\54\ Two commenters
further explained that FEMA's habitability standards are inequitable
and deny IHP assistance to applicants with disabilities and survivors
who have low income, especially for applicants within these underserved
groups who also have underlying health conditions. These commenters
asserted that a habitability standard which assumes that what is safe
to occupy for one person is safe to occupy for another person is wrong.
They explained that because IHP policy has not considered the presence
of mold a condition that would prevent an applicant from occupying a
home safely, applicants with immunocompromised health conditions such
as asthma, cancer, or sickle cell disease, for whom it was unsafe to
live in a home with mold, were routinely denied assistance.\55\
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\54\ FEMA-2021-0011-0164 and FEMA-2021-0011-0261.
\55\ FEMA-2021-0011-0152 and FEMA-2021-0011-0164.
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FEMA acknowledges that voluntary agencies and community
organizations are the first and last organizations to provide survivors
support services in a community before and after a disaster. Therefore,
FEMA's Voluntary Agency Coordination Section provides technical
assistance, coordination, and subject matter expertise to partners who
are addressing gaps in resources, providing financial support and
additional support to survivors after government assistance is
exhausted. This assistance is provided via FEMA's Voluntary Agency
Liaison (VAL) staff. The function of the VALs is to coordinate
voluntary activities between internal FEMA partners, local, State, and
Federal Government entities and State and National Voluntary
Organizations Active in Disaster; to support and build the capability
of disaster recovery for current and future disasters; and to support
ongoing community recovery activities even after the period of
assistance has ended. VALs work directly with IA staff to ensure that
all disaster survivors to include those with LEP are informed of FEMA
assistance.
FEMA has many ways to meet survivors' language needs. Many FEMA
employees are bilingual or multilingual and can assist LEP survivors
with registration in their primary language by phone and in-person at a
DRC. All DRCs have a sign posted in a visible location with the phrase
``If you do not speak English'' in over 40 languages. A DRC staff
member will use that sign to determine what language the survivor
speaks and call for an interpreter to assist them.
If an in-person interpreter is not present at the DRC, FEMA staff
will connect the survivor with the FEMA Helpline or video relay service
so the survivor is able to communicate with the FEMA employee
accurately. FEMA's Helpline has interpretation services provided by
qualified interpreters available in 250 languages to assist LEP
disaster survivors.
FEMA recognizes that an applicant's ability to effectively
communicate their reasonable accommodation or reasonable modification
request is essential. To improve FEMA's ability to assist applicants
with disabilities with requesting and receiving reasonable
accommodations and reasonable modifications during registration, FEMA
recently updated its registration process to better capture
accommodations, modifications, and access assistance needs for
applicants and their household members. Specifically, FEMA added
questions to the Disaster Assistance Registration forms to provide
applicants with an opportunity to consider, document and differentiate
their household's pre-disaster and disaster-caused accommodation or
modification requests and access needs. FEMA uses responses to
registration questions to provide reasonable accommodations, reasonable
modifications, and assistance to applicants throughout the IHP process.
These questions include whether the applicant has a disability or
language need that requires an accommodation or modification, or
interpretation or translation services to interact with FEMA staff and/
or access FEMA programs; if the applicant or anyone in their household
has a disability that affects their ability to perform daily living
activities or requires an assistive device; and whether they have any
disability-related assistive devices or medically required equipment/
supplies/support services damaged, destroyed, lost, or disrupted
because of the disaster.\56\
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\56\ This rulemaking clarifies that ONA includes medical service
costs for the loss or injury of a service animal. See new 44 CFR
206.119(b)(3)(iv).
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[[Page 3997]]
FEMA recently completed system updates with the new question in
2018 to ensure information provided in response to these questions at
registration or provided to staff at other times are captured and
easily accessible to all staff in a consistent area in the system. FEMA
is also performing additional outreach to applicants with disabilities
and language access needs to assist them in understanding any
correspondence FEMA provides to them.\57\ Applicants who state they
have a disability during the registration process are placed in a
prioritization queue and, if later determined ineligible for FEMA
assistance, will be contacted via phone to explain their ineligibility.
The field will also conduct their own outreach via phone to applicants
with access and functional needs. FEMA continues to explore new methods
and processes for documenting and populating reasonable accommodation
and reasonable modification requests across the IHP. Lastly, in this
rule, FEMA is revising the IHP Application for Continued Temporary
Housing Assistance, FEMA Form FF-104-FY-21-115, to include a question
that provides applicants with another opportunity to identify any
disability-related household needs that might impact their application
or recertification for temporary housing assistance.
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\57\ FEMA currently provides letters in English and Spanish.
FEMA recently updated our English and Spanish letters to include a
tagline in six languages informing applicants how to contact the
Helpline for translation help. The six languages are: English,
Spanish, Russian, Portuguese, Vietnamese, and Korean.
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As noted in the IAPPG 1.1, FEMA may provide Home Repair Assistance
and Personal Property Assistance for disaster-damaged accessibility-
related items. Nevertheless, in response to public requests for IHP
policy that meets applicants' disaster-caused structural home
modification needs, FEMA recently amended its policy to include
Assistance for Disaster-Caused Americans with Disabilities Act (ADA)
Real Property Needs. The September 2, 2021, Amendment to FEMA Policy
(FP) 104-009-03, Individual Assistance Program and Policy Guide
(IAPPG), Version 1.1 memorandum currently allows FEMA to provide
financial assistance to applicants who incur a disaster-caused
disability and consequently require the installation or construction of
accessibility-related real property components at their damaged
dwelling to meet their needs. Home Repair Assistance for specific
accessibility-related items is not limited by a financial maximum
award. The following accessibility-related items are currently eligible
under Home Repair Assistance when the applicant or a member of the
household has a disaster-caused disability:
<bullet> Exterior ramp.
<bullet> Grab bars.
<bullet> Paved path of travel to the primary residential entrance
(for accessible ingress or egress from the applicant's vehicle to their
dwelling).
In response to public comments, FEMA is also making changes to the
regulatory text at 44 CFR 206.117(b)(2) and adding a new 44 CFR
206.113(a)(9) as a part of this rule. The changes allow FEMA
flexibility to provide financial assistance to applicants for the
installation or construction of real property items that were not
present in the home prior to the disaster. Specifically, these changes
allow IHP to expand its existing policy, which provides for the
installation of ADA related real property to applicants with disaster-
caused needs, to include Home Repair Assistance for disaster survivors
with pre-existing, pre-disaster needs for accessibility-related items,
such as an exterior ramp, grab bars, etc., that make their home safe
and functional when any level of disaster-caused real property damage
occurs to the primary residence.
In new 44 CFR 206.113(a)(9), FEMA states that FEMA may provide
assistance with respect to home repair for accessibility-related items,
if an applicant meets the following conditions: (i) the applicant is
either an individual with a disability as defined in 42 U.S.C. 5122
whose disability existed prior to the disaster \58\ and whose primary
residence was damaged by the disaster, or an individual with a
disability as defined in 42 U.S.C. 5122 whose disability was caused by
the disaster and whose primary residence was damaged by the disaster;
(ii) the real property component is necessary to meet the
accessibility-related need of the household; and (iii) the real
property component is not covered by insurance or any other source.
---------------------------------------------------------------------------
\58\ FEMA generally will accept statements from relevant medical
providers, such as physical therapists, occupational therapists,
registered nurses, physician assistants, etc.
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Via information collection at 1660-0002, we are adding a
documentation requirement to tie the need for the home repair
accessibility-related items (which currently includes only ramp, grab
bars, and/or paved pathway) to the pre-existing disability to meet the
household's access and functional need. We are requiring that a
medical, health care, or rehabilitation professional certify whether or
not this is necessary; as, they have the expertise to make that
determination or we will accept prior medical, health care, or
rehabilitation professional documentation that supports the need for
the accessibility-related items.
FEMA is making the below changes to Home Repair Assistance to
respond to four RFI comments,\59\ so that FEMA may make the dwelling
safe/sanitary for pre-disaster disabled applicants. For example, this
change will allow FEMA to reimburse pre-disaster disabled applicants
for installation of accessibility items, such as grab bars and access
ramps, if the primary residence sustained disaster damage regardless of
whether or not the applicant had grab bars or access ramps pre-
disaster.\60\
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\59\ FEMA-2021-0011-0152, FEMA-2021-0011-0164, FEMA-2021-0011-
0235, and FEMA-2021-0011-0261.
\60\ If the FEMA assistance provided for these items is less
than the actual cost to the applicant, the applicant may appeal for
additional assistance. FEMA will accept itemized bills, receipts, or
estimates to verify that there is a need for additional assistance.
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In 44 CFR 206.117(b)(2)(i), FEMA states that FEMA may provide
financial assistance for the repair of an owner-occupied primary
residence if: the eligibility criteria in 44 CFR 206.113 are met; FEMA
determines the dwelling was damaged by the disaster; and the damage is
not covered by insurance. This provision is similar to the current 44
CFR 206.117(b)(2)(i), except FEMA is removing the phrase ``real
property components in'' before ``an owner-occupied primary
residence;'' adding ``FEMA determines'' after ``met;'' removing ``to
the component'' after ``damage'' and replacing ``component'' with
``dwelling,'' as the Stafford Act does not limit repairs to
``components'' and replacing ``owner's'' with ``owner-occupied'' for
consistency as owner-occupied is the defined term in 44 CFR 206.111;
removing the current 44 CFR 206.117(b)(2)(i)(B) that ``the component
was functional immediately before the declared event'' and removing
current 44 CFR 206.117(b)(2)(i)(E) that ``the repair of the component
is necessary to ensure the safety or health of the occupant or to make
the residence functional,'' and removing the clause ``and the damage
was caused,'' since this rule will allow FEMA to pay for pre-existing
conditions if the component itself was damaged by the disaster.
In 44 CFR 206.117(b)(2)(ii), FEMA states that FEMA may provide
financial assistance for the repair of the disaster damaged dwelling to
a safe and sanitary living or functioning condition. This
[[Page 3998]]
clause is consistent with the current 44 CFR 206.117(b)(2)(ii), except
FEMA is adding ``the disaster damaged dwelling to a safe and sanitary
living or functioning condition including'' after ``of.'' These
additions align with the changes that make it clear that only disaster
damaged dwellings (regardless of their pre-disaster condition) may
receive repair assistance, as FEMA may only pay to restore disaster
damage to a safe and sanitary living or functioning condition. If the
dwelling was not touched by the disaster, it will not be eligible for
repair assistance; therefore, the applicant would not be able to apply
for Home Repair Assistance for their pre-existing, pre-disaster needs
for accessibility-related items, such as an exterior ramp, grab bars,
etc., that would make their home safe and functional.
The September 2, 2021, Amendment to FEMA Policy (FP) 104-009-03,
Individual Assistance Program and Policy Guide (IAPPG), Version 1.1
memorandum also amended the Home Repair Assistance section in IAPPG 1.1
to include financial assistance to repair real property components
impacted by disaster-caused mold growth.\61\ The amendment's expressed
intent was to support low income and other underserved disaster
survivors who may not have the means to immediately address disaster
damage, particularly when disasters are not declared immediately or
inspections are delayed. However, all applicants with disaster-caused
mold damage may be eligible for the assistance when they meet all other
conditions of eligibility. These additional funds will be provided as
part of the Home Repair Assistance award when applicable.
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\61\ See page 9 of the Amendment to FP 104-009-03, Individual
Assistance Program and Policy Guide, Version 1.1 memorandum cites to
Chapter 3, Section IV.E. of the IAPPG 1.1, which is on pages 85-88
of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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Appeals
Sixteen commenters provided responses about the IHP appeal process.
Ten of the commenters expressed concern that the appeal process is
burdensome on applicants and must be simpler in order for applicants of
varying backgrounds and communities to successfully navigate the
process.\62\ According to 3 of these 10 commenters, filing a successful
appeal for applicants in traditionally underserved populations often
requires hard to find or costly access to legal services.\63\ To
streamline the appeal process and reduce the burden on disaster
survivors, these commenters suggested FEMA expand methods for filing
appeals, including by:
---------------------------------------------------------------------------
\62\ FEMA-2021-0011-0151, FEMA-2021-0011-0162, FEMA-2021-0011-
0209, FEMA-2021-0011-0235, FEMA-2021-0011-0237, FEMA-2021-0011-0245,
FEMA-2021-0011-0260, FEMA-2021-0011-0261, FEMA-2021-0011-0273, and
FEMA-2021-0011-0292.
\63\ FEMA-2021-0011-0151, FEMA-2021-0011-0245, and FEMA-2021-
0011-0260.
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<bullet> Allowing applicants to file appeals online, by telephone,
and in-person.\64\
---------------------------------------------------------------------------
\64\ FEMA-2021-0011-0149, FEMA-2021-0011-0261, and FEMA-2021-
0011-0292.
---------------------------------------------------------------------------
<bullet> Providing a standard appeal form.\65\
---------------------------------------------------------------------------
\65\ FEMA-2021-0011-0245.
---------------------------------------------------------------------------
<bullet> Reaching out directly to applicants by phone to personally
assist them with the appeal process when they are denied
assistance.\66\
---------------------------------------------------------------------------
\66\ FEMA-2021-0011-0261.
---------------------------------------------------------------------------
<bullet> Providing appeal status updates to applicants through
their online applicant portals.\67\
---------------------------------------------------------------------------
\67\ FEMA-2021-0011-0149.
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Two additional commenters described the appeal process as overly
complicated to navigate because of challenges in other parts of the IHP
delivery process. Specifically, these commenters asserted that IHP
eligibility notification letters provided unclear explanations of the
reason an applicant is determined ineligible for assistance. The
commenters explained that when applicants are unable to identify and
understand the cause of their denial for assistance, they lack critical
information needed to pursue a successful appeal.\68\ Three commenters
also discussed obstacles disaster survivors face after the trauma of a
major disaster and recommended that FEMA extend the appeal deadline
beyond the current 60 days.\69\ Two of these commenters explained that
by providing applicants with a grace period for establishing ownership
and addressing other issues that take time to obtain documentation,
FEMA could improve access to their programs for applicants with low
income and applicants of color who are disproportionately affected by
heir-ownership (when a person inherited the land or residence but does
not hold formal title to it) and other documentation issues.
---------------------------------------------------------------------------
\68\ FEMA-2021-0011-0237 and FEMA-2021-0011-0275.
\69\ FEMA-2021-0011-0149, FEMA-2021-0011-0208, and FEMA-2021-
0011-0245.
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Three other commenters argued the need for greater transparency in
the appeal process.\70\ One of the three recommended that FEMA publish
appeal decisions online, while another suggested that if an applicant
pursues an appeal and inspection documents exist, FEMA should provide
those documents to the applicant regardless of the applicant's appeal
approval or denial status. Four commenters maintained that the issue
went beyond transparency and was instead a matter of fairness. They
asserted that the existing appeal process is unfair because FEMA serves
as both the original decision maker--determining applicant eligibility
or award amount, while simultaneously serving as the final decision
maker--determining if those same applicants have waged a successful
appeal to overturn FEMA's original eligibility and/or award
decisions.\71\ Three of these commenters went on to reason that a right
of legal action in the courts, to include an oral hearing and
discovery, should be built into the FEMA appeal process.
---------------------------------------------------------------------------
\70\ FEMA-2021-0011-0162, FEMA-2021-0011-0260, and FEMA-2021-
0011-0295.
\71\ FEMA-2021-0011-0235, FEMA-2021-0011-0275, FEMA-2021-0011-
0295, and FEMA-2021-0011-0302.
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FEMA does not have the legal authority to accept the commenters'
suggestions to create a right to challenge FEMA's eligibility decisions
in court as part of the appeal process, so that FEMA is not both the
original decision maker and the final decision maker. The United States
is immune from suit unless it consents to be sued.\72\ The Stafford Act
provides that FEMA shall not be liable for any claim based upon the
exercise or performance of or the failure to exercise or perform a
discretionary function or duty. 42 U.S.C. 5148. The appeal process
applies to FEMA's eligibility decisions under IHP. FEMA's eligibility
decisions are discretionary determinations, which means that they are
not reviewable by a court.\73\ However, FEMA has protocols in place
that guarantee appeals are not reviewed by the same case worker who
made the original eligibility determination.
---------------------------------------------------------------------------
\72\ See, e.g., United States v. Mitchell, 463 U.S. 206, 212
(1983).
\73\ See City of San Bruno v. FEMA, 181 F. Supp. 2d 1010, 1014-5
(N.D. Cal. 2001) (``Distributing limited funds is inherently a
discretionary responsibility.'') Please note, while the eligibility
decisions underlying appeals are discretionary and therefore immune
from suit, the mandatory provisions in 42 U.S.C. 5189a related to
appeals are not: FEMA is required to issue rules providing for the
fair and impartial consideration of appeals. FEMA has discharged
that responsibility by issuing regulations although the content of
those regulations are also considered discretionary and immune from
suit. (Barbosa v. United States Dep't of Homeland Security, 916 F.3d
1068, 1073 (D.C. Cir. 2019)) (``We have little doubt that the
statutory requirement for regulations rely on the discretionary
judgment of FEMA; the range of choice that FEMA can employ is quite
wide'').
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FEMA similarly does not have the legal authority to extend the 60-
day appeal time frame set forth in 42 U.S.C. 5189a(a). Nevertheless, as
a part of this rule, FEMA identified an opportunity to
[[Page 3999]]
codify additional flexibilities for applicants in meeting this 60-day
deadline for appeals sent by mail. As is currently done in practice,
FEMA will continue to accept and process any appeal postmarked within
60 days of the date on the applicant's IHP decision letter, even if
FEMA receives the appeal outside of the 60-day deadline.
FEMA can address comments to simplify the appeal process by
removing the requirement to submit an appeal and by creating an
optional appeal form. FEMA's existing regulations, 44 CFR 206.115(b),
require that appeals must be in writing and explain the reason(s) for
the appeal. However, a written explanation may not be necessary to
substantiate an appeal claim. Instead, supporting documents, such as
receipts, bills, repair estimates, contractor estimates, property
titles, or deeds may better demonstrate the reason(s) for the appeal
and provide justification for FEMA to reconsider the applicant's
original eligibility determination. Nevertheless, to comply with the
existing regulations, FEMA does not currently process appeals that do
not contain the required written and signed letter of explanation, even
if the applicant provides adequate documentation. To alleviate this
bureaucratic hurdle, FEMA is removing the requirement that applicants
must submit a signed appeal letter explaining the reason(s) for the
appeal when they have provided sufficient justification through
supporting documents. This change will streamline the appeal process
and reduce additional paperwork and correspondence between the
applicant and FEMA that may delay the applicant's recovery process.
To further assist applicants with navigating the appeal process, as
suggested by a commenter, as part of this rulemaking, FEMA has
developed an optional Appeal Request Form which applicants may use to
assist them when submitting an appeal.\74\ This form, which FEMA will
accept as a written explanation, will be available online at
<a href="http://www.DisasterAssistance.gov">www.DisasterAssistance.gov</a>. These changes are intended to provide a
more user-friendly, equitable, and efficient appeal process that better
meets the needs of traditionally underserved populations.
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\74\ FEMA is providing in this rule that appeals must include a
written explanation or verifiable documentation for the appeal. This
will give disaster survivors the option to complete the Appeal
Request Form instead of drafting a written appeal letter, or submit
verifiable documentation without the form or a letter. FEMA
currently provides letters in English and Spanish. FEMA recently
updated our English and Spanish letters to include a tagline in six
languages informing applicants how to contact the Helpline for
translation help. The six languages are: English, Spanish, Russian,
Portuguese, Vietnamese, and Korean. FEMA knows which language to
provide letters in based on the language that the Disaster Survivor
selected on their Disaster Assistance Registration.
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With respect to the additional suggestions from commenters, FEMA
notes that under the current process, applicants may access key
information online, including appeal status, letters, and their
personal appeal decision. Applicants with an online account can upload
their appeal \75\or check the status of their appeal, by visiting
<a href="http://www.DisasterAssistance.gov">www.DisasterAssistance.gov</a> and selecting Check Your Application Status
or by calling FEMA's Helpline at 800-621-3362 (711 or VRS available).
Applicants who use a relay service, such as a Videophone, InnoCaption,
or CapTel, are asked to provide the specific number assigned to that
service. Individual applicants can reference their personal appeal
decisions and letters online if they have created an online account and
selected electronic correspondence from FEMA. FEMA considered
publishing appeals information. Ultimately, FEMA declined to do so, due
to a concern that releasing data of only appeal applicants would appear
to require greater public exposure for appeal applicants than is
required for initial applicants. Publication of appeal records could
discourage applicants from appealing, or even appear to be a punitive
measure for individuals who appeal.
---------------------------------------------------------------------------
\75\ Applicants that create an online FEMA account or use their
<a href="http://login.gov">login.gov</a> account can upload documents including appeal letters.
---------------------------------------------------------------------------
Our system does not have the capability to display inspection
reports nor is it captured in FEMA's National Emergency Management
Information System (NEMIS) in a way that would readily be understood by
the public. As part of FEMA's development of a new system,\76\ FEMA
plans to improve the amount of detail that can be provided to
applicants related to their inspection results and eligibility.
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\76\ FEMA has been collecting suggestions from various workshops
and other feedback efforts to ensure the new system, once built,
meets all IHP and applicant needs.
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In addition, under section 423 of the Stafford Act, 42 U.S.C.
5189a, and existing regulations governing FEMA IHP, 44 CFR 206.115(d)-
(f), an applicant may ask for a copy of information in his or her file
by writing to FEMA. To promote transparency, FEMA's regulations require
the agency to give the applicant a written notice of the disposition of
the appeal within 90 days of receiving the appeal. The appeal decision
made by FEMA, or the State, Tribal, or Territorial (STT) government in
instances where the STT government has opted to process ONA, is final.
FEMA believes its current regulations are sufficient to ensure that
disaster survivors can exercise their right to appeal assistance
decisions. The existing regulations provide FEMA with the flexibility
needed to meet survivor needs, while complying with privacy and
paperwork reduction laws, intended to protect applicant information and
minimize burdens, and avoiding the unnecessary expenditures and delays
that would be a part of implementing the expanded appeal process
requested by commenters, which included a litigation component to the
IHP appeal process.
Finally, FEMA makes every effort to ensure that its correspondence
is written using plain language and that eligibility notification
letters provide adequate explanation of the applicant's eligibility
determination, award decision, and next steps should the applicant want
to appeal the eligibility determination or award amount.\77\ For
example, FEMA conducts periodic, comprehensive reviews of our applicant
correspondence to make improvements based on disaster survivor
feedback. As part of this process, FEMA hosts focus groups with
disaster survivors to give them the opportunity to review proposed
changes to our letters \78\ and to provide us with feedback about how
to make the letters more understandable and helpful. FEMA reviews the
feedback received from the focus groups before finalizing changes to
the letters. FEMA held focus groups in 2016 and 2022.\79\
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\77\ FEMA currently provides letters in English and Spanish.
FEMA recently updated our English and Spanish letters to include a
tagline in six languages informing applicants how to contact the
Helpline for translation help. The six languages are: English,
Spanish, Russian, Portuguese, Vietnamese, and Korean.
\78\ In 2022, the focus groups reviewed the following letters:
Cover Letter sent to all applicants; Continued Temporary Housing
Assistance Letter; Denial letter; Approval letter; Request For
Information letter; and Identity Theft/Bank Routing letter.
\79\ At the 2016 focus group, 196 people agreed to participate
but only 76 actually attended the feedback sessions. At the 2022
focus group, 102 people agreed to participate but only 18 actually
attended the feedback sessions.
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Prior to peak hurricane season in 2022, FEMA updated its applicant
letters based on focus group feedback, with the intent of simplifying
the letters and making the appeal process clearer. As one example of a
change made based on focus group input, FEMA further clarified the
relationship between SBA and FEMA and how our processes interact, after
focus group members
[[Page 4000]]
indicated that the SBA section of the letters were confusing.
Applicants who need assistance with understanding their eligibility
notification letter or the appeal process can receive assistance by
phone by calling the FEMA Helpline at 800-621-3362 (711 or VRS
available). When available, applicants may also receive in-person
assistance by visiting a local DRC, where FEMA and SBA customer
representatives are available. FEMA will continue to explore options
for simplifying the process for submitting appeals and strives to
continue to identify ways to alleviate any disparate impacts to
underserved groups in the IHP process.
Assistance by Default
Two commenters suggested FEMA implement proactive measures to
provide a broad delivery of disaster assistance to residents in a
declared area in order to equitably deliver assistance without regard
to economic ability, housing situation, or specific losses attributed
to the disaster.\80\ One of the suggestions specified assistance should
be delivered as an opt-out method, with a stronger focus on the housing
needs of parolees and unhoused individuals.
---------------------------------------------------------------------------
\80\ FEMA-2021-0011-0259 and FEMA-2021-0011-0274.
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FEMA has a duty under section 408(i) of the Stafford Act, 42 U.S.C.
5174(i), to verify each applicant is eligible for assistance.
Additionally, section 696 of the Post-Katrina Emergency Management
Reform Act of 2006 (PKEMRA), 6 U.S.C. 795, also requires FEMA to
develop and maintain proper internal management controls to prevent and
detect fraud, waste, and abuse. Accordingly, without a change to these
underlying statutory provisions, FEMA cannot provide assistance without
first verifying the applicant's specific housing situation or losses.
While FEMA understands the immediate need for assistance after
catastrophic events, FEMA also has to balance its responsibility to
ensure assistance is provided only to eligible individuals and for the
purpose allowable by statute. Therefore, FEMA must verify disaster-
caused loss or expenses. Additional assistance provided for in this
rulemaking, such as Serious Needs Assistance and Displacement
Assistance,\81\ will make more funds immediately available and their
eligibility criteria and uses are less specific than most existing
forms of IHP assistance. It should also be noted that there are other
State or local agencies, as well as volunteer organizations, that may
be able to provide more targeted assistance to populations where needs
and challenges extend beyond disaster caused impacts.
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\81\ Applicants experiencing homelessness pre-disaster who can
also verify occupancy at an impacted location may also be considered
for Initial Rental Assistance only; LER; all types of ONA (this
includes Serious Needs Assistance, Displacement Assistance, and
Critical Needs Assistance (prior to the IFR).)
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FEMA remains committed to ongoing community engagement and
communication with our stakeholders to better understand the needs of
traditionally underserved communities and to share information
regarding disaster preparedness and recovery assistance. We conduct
tribal engagement sessions on draft policies; and we have held
engagement sessions with the public on letter updates. We also engage
with other stakeholders, such as Congressional members and staff, State
and local officials, and advocacy organizations to discuss their
concerns.
Citizenship
A few commenters raised issues regarding immigration status-based
restrictions on FEMA IA, arguing that FEMA should reform the IA Program
to ensure that undocumented residents are eligible. Commenters noted
that undocumented families are unable to access a range of benefits and
therefore are more likely to suffer lasting harm.\82\ One commenter
stated that the FEMA registration process asks for information on all
members of the household, not just the eligible member(s). Non-eligible
parents who have survived disasters, even if they have U.S. citizen
children, and other eligible survivors are not applying for help for
fear they or others in their household may be turned in to immigration
enforcement authorities.\83\ This commenter also stated that FEMA
should repeal its alleged policy of forwarding citizenship status to
immigration enforcement authorities or any other Government agencies.
Another commenter stated that one of the obstacles for disaster
survivors seeking FEMA assistance is that based on the ``Welfare Reform
Act,'' an immigrant must have been designated a legal immigrant for 5
years in order to receive any Federal financial assistance.\84\ Another
commenter suggested that FEMA should look into creating and promoting
programs available for people who are not citizens but pay taxes
through work permits or ITIN \85\ numbers.\86\ Lastly, one commenter
stated that immigration and naturalization status is one demographic
characteristic that is notably absent in the RFI.\87\
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\82\ FEMA-2021-0011-0293 and FEMA-2021-0011-0269.
\83\ FEMA-2021-0011-0245.
\84\ FEMA-2021-0011-0255.
\85\ An ITIN, or Individual Taxpayer Identification Number, is a
tax processing number only available for certain nonresident and
resident aliens, their spouses, and dependents who cannot get a
Social Security Number (SSN). It is a 9-digit number, beginning with
the number ``9,'' formatted like an SSN (NNN-NN-NNNN).
\86\ FEMA-2021-0011-0275.
\87\ FEMA-2021-0011-0163.
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Title IV of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, sometimes referred to as the Welfare Reform
Act, Pub. L. 104-193, provides that noncitizens who are not ``qualified
aliens'' are not eligible for Federal public benefits, which include
assistance provided under Section 408 of the Stafford Act, 42 U.S.C.
5174. FEMA cannot alter this requirement without a statutory change;
however, FEMA considers the citizenship status of the entire household
where someone is applying for assistance. This means that any adult
household member who is a U.S. citizen or qualified alien in the
household may apply for assistance, or any undocumented immigrants with
children who are U.S. citizens may apply on behalf of their child.
Further, regardless of citizenship status, disaster survivors may be
eligible for the following FEMA programs that provide services instead
of financial assistance to individuals:
<bullet> Mass Care/Emergency Assistance (Section 403 of the
Stafford Act, 42 U.S.C. 5170b) which addresses sheltering needs
immediately following a disaster;
<bullet> Crisis Counseling Assistance and Training Program (Section
416 of the Stafford Act, 42 U.S.C. 5183) which is a Federal-funded
supplemental program that enables State, local, Territorial, or Tribal
government agencies to provide crisis counseling services or contract
with local mental health service providers to provide services;
<bullet> Disaster Case Management (DCM) (Section 426 of the
Stafford Act, 42 U.S.C. 5189d) which is a Federal-funded supplemental
program that provides financial assistance to State, local,
Territorial, or Tribal government agencies, or qualified private
organizations, to enable non-Federal entities to provide DCM services;
and
<bullet> Disaster Legal Services (Section 415 of the Stafford Act,
42 U.S.C. 5182) which via an agreement with the American Bar
Association provides free legal help for survivors.
In 2017, FEMA updated the FEMA registration language by removing
[[Page 4001]]
references to the Bureau of Immigration and Customs Enforcement \88\
and clarifying the reasons FEMA would share information. The current
version informs applicants that, consistent with the Privacy Act, 5
U.S.C. 552a, FEMA may share individuals' information with Federal,
State, Tribal, and local agencies and voluntary organizations to enable
individuals to receive additional disaster assistance or to allow FEMA
to administer assistance.\89\
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\88\ The Bureau of Immigration and Customs Enforcement is now
referred to as the U.S. Immigration & Customs Enforcement.
\89\ See ICR Reference No. 202201-1660-005, FF-104-FY-21-122
(formerly 009-0-1) View Information Collection Request (ICR) Package
(<a href="http://reginfo.gov">reginfo.gov</a>).
---------------------------------------------------------------------------
The topic of immigration is notably absent in the RFI because
citizenship requirements for Federal assistance are established by
statute and cannot be resolved via rulemaking. However, FEMA has no
policy of forwarding individuals' information particularly pertaining
to their citizenship status to immigration enforcement authorities.
Accordingly, FEMA posts the following language via a flyer in all DRC
locations. ``This location is a protected area designated to provide
emergency response and relief. FEMA will not proactively share your
information with immigration or law enforcement agencies. U.S.
Immigration and Customs Enforcement (ICE) and U.S. Customs and Border
Protection (CBP) will not conduct enforcement operations at or near
this location, except in the most extraordinary of circumstances.''
Codes and Standards
One comment was received suggesting that FEMA should require IHP
applicants to adhere to minimum construction standards for any
applicable repair to their disaster-damaged home, regardless of whether
the local community has adopted a building code.\90\ While FEMA
recognizes the importance of building codes and encourages all
communities to adopt and enforce modern building codes,\91\ we do not
believe it is appropriate to establish a nationwide minimum
construction standard for IHP at this time. FEMA provides funds to IHP
recipients to address disaster repair needs, which may include costs to
meet applicable codes, up to the Housing Assistance maximum award.
Recipients should rebuild or repair their damaged homes in compliance
with applicable State and local codes, and are subject to State and
local enforcement of those codes. FEMA does not have the capacity to
monitor and enforce a nationwide minimum construction standard for IHP.
Moreover, FEMA does not have the authority to fund costs of compliance
of any such code beyond the maximum award amount, which would leave
some recipients in a situation where FEMA would require repair work but
would not be able to provide sufficient funding to cover it.
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\90\ FEMA-2021-0011-0307.
\91\ <a href="https://www.fema.gov/sites/default/files/documents/fema_bcs-brochure_03-01-21_0.pdf">https://www.fema.gov/sites/default/files/documents/fema_bcs-brochure_03-01-21_0.pdf</a>.
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Cost Share
Two commenters raised issues regarding the cost share requirement,
arguing that FEMA should reduce or remove the requirement
altogether.\92\ The commenters noted that the cost share requirement
can preclude many communities from accessing resources because they do
not have the ability to meet the cost share, specifically, economically
disadvantaged rural communities and Tribal Nations.
---------------------------------------------------------------------------
\92\ FEMA-2021-0011-0265 and FEMA-2021-0011-0289.
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Section 408(g) of the Stafford Act, 42 U.S.C. 5174(g), governs the
IHP cost share. Specifically, it states that the Federal share of
Housing Assistance under the IHP will be 100 percent; whereas, the
Federal share for Other Needs Assistance will be 75 percent and the
non-Federal share will be paid from funds made available by the
relevant STT government.\93\ The statute at 48 U.S.C. 1469a(d) allows
FEMA to waive or adjust the cost share for disaster grants in insular
areas such as the Virgin Islands, Guam, American Samoa, and the
Northern Mariana Islands. Outside of this one specific flexibility,
FEMA does not have the ability to waive or adjust the cost share for
IHP assistance through regulatory change, as it would require a
legislative change.
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\93\ The Stafford Act definition of State in 42 U.S.C. 5122(4)
incorporates the Territories and DC. The ``References'' provision in
42 U.S.C. 5123 incorporates Tribes into either the definition of
State or local government, depending on the role of the Tribe.
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Data Sharing/Collection
Two commenters expressed their concerns with how applicant data is
shared from FEMA with local partners. One of them commented that the
way in which FEMA shares data with local partners seems to be
inconsistent from incident to incident.\94\ Additionally, they asked
that FEMA utilize Internal Revenue Service (IRS) income data to
expedite the verification process.\95\ The other commenter mentioned
how FEMA's registration data needs to be accurate and quickly made
available to local partners, and that FEMA should create procedures to
safeguard applicants' information.\96\
---------------------------------------------------------------------------
\94\ FEMA-2021-0011-0187.
\95\ FEMA-2021-0011-0187.
\96\ FEMA-2021-0011-0277.
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FEMA recognizes that data sharing might make it easier for
survivors to access assistance from other entities, and FEMA is always
looking for ways to simplify IHP and speed the delivery of assistance.
However, collecting, maintaining, and sharing data on a large scale
presents challenges with respect to data security, and updating the
rules on data sharing with State and local partners requires carefully
balancing those concerns against the benefits of simplifying the
program. FEMA continues to work alongside its State, local, Tribal, and
Territorial partners to ensure that disaster recovery resources and
services are not delayed or hindered by data collection and sharing
concerns. Applicants can also access up to date information on their
individual applications by setting up a Disaster Assistance Center
electronic account with FEMA following a disaster.
Lastly, the IRS has indicated they could not share data with FEMA
without statutory authorization.\97\ As most forms of FEMA assistance
are not income dependent, however, using IRS income data would not
significantly improve how quickly FEMA is able to get initial
assistance to applicants. Applicants are asked to self-report their
income at Registration Intake to determine if the applicant meets
criteria established by the SBA to indicate the capability to repay a
loan. Those applicants determined potentially capable of repaying a
loan are referred to the SBA and must complete an application with the
SBA before being further considered by FEMA for SBA-dependent ONA.
Additionally, as part of this rule, FEMA is removing the requirement
that applicants must apply and be denied for an SBA disaster loan
before being considered for SBA-dependent ONA, further minimizing any
potential benefits of information sharing by the IRS.
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\97\ See 26 U.S.C. 6103; IRS, Disclosure Laws (Oct. 5, 2022),
<a href="https://www.irs.gov/government-entities/federal-state-local-governments/disclosure-laws">https://www.irs.gov/government-entities/federal-state-local-governments/disclosure-laws</a>. FEMA had multiple discussions with the
IRS on this subject, and representatives from the IRS stated clearly
that the agency believed that sharing this type of data with FEMA
would require a statutory authorization.
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Demographics
One commentor stated that Federal funds should not be a roadmap but
rather a single point of engagement and support, especially to
underserved communities or other communities who may fall below the
poverty line or
[[Page 4002]]
become homeless, and should ensure quality of life before the disaster
for these communities.\98\ A few commenters suggested that FEMA should
collect demographic data especially of those residing in vulnerable and
underserved communities to identify the communities with the most need
and enhance equitable recovery.\99\ One of those commenters also
suggested that FEMA should reconsider the constraints of the Paperwork
Reduction Act on how FEMA collects and shares voluntary demographical
data.\100\ A few commenters raised the issue of the type of demographic
data that FEMA should collect for identifying the communities which
benefit most from FEMA resources to include voluntary household data
(i.e., gender and race) and how they intersect (e.g., Black woman,
Latino man); immigration and nationalization status; ethnicity; race;
income; degree of rurality; and data that represents the underserved
and others who may fall below the poverty line or become homeless.\101\
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\98\ FEMA-2021-0011-0159.
\99\ FEMA-2021-0011-0163, FEMA-2021-0011-0224, FEMA-2021-0011-
0261, FEMA-2021-0011-0264, FEMA-2021-0011-0275, and FEMA-2021-0011-
0277.
\100\ FEMA-2021-0011-0163.
\101\ FEMA-2021-0011-0163, FEMA-2021-0011-0259, FEMA-2021-0011-
0261, and FEMA-2021-0011-0275.
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With respect to acting as a single point of engagement for
underserved communities' broader quality of life needs, FEMA is
committed to providing disaster assistance in a fair and equitable
manner. This rule's changes to how FEMA assesses habitability,
discussed in more depth below, will put applicants in a better position
to recover from disasters while staying within the bounds of FEMA
statutory authority under the Stafford Act.
With respect to demographic data, in an effort to further
understand the distribution of awarded IHP assistance, FEMA obtained
Office of Management and Budget's (OMB) approval to gather demographic
information from disaster survivors who choose to provide it.\102\ This
data will help FEMA assess \103\ whether agency policies and actions
create or exacerbate barriers to full and equal participation in our
programs and better understand program outcomes for applicants.
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\102\ Information Collection 1660-0154, Generic Clearance for
Civil Rights and Equity. In the IHP, FEMA already collects some
demographics for programmatic reasons (date of birth/age, income,
and disability via OMB Control Number: 1660-0002, Disaster
Assistance Registration). Under 1660-0154, new questions pertaining
to race, Tribal enrollment, ethnicity, education, gender, and
marital status are intended to be used in order to conduct robust
statistical analysis of the outcome of IHP for various vulnerable
populations. The data will be used to understand intersectionality
of demographics and identify any issues with program implementation
that may be affecting a specific group of individuals.
\103\ The supporting statement associated with FEMA's
demographics data collection, 1660-0154, indicates that FEMA will do
analysis of the demographic questions to determine if it is
necessary to continue to collect the data based on our findings. We
plan to complete this analysis after 2 years of data collection, in
the fall of 2024, to inform whether all six questions are still
needed.
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Disaster Housing Assistance Program
A few commenters mentioned the expired Disaster Housing Assistance
Program (DHAP), which initially was created as a FEMA pilot program
administered by the U.S. Department of Housing and Urban Development
(HUD) to assist applicants of Hurricanes Katrina and Rita,\104\ later
for Hurricanes Ike and Gustav, and a small program for Hurricane Sandy.
One commenter questioned why the previous administration did not
utilize this program for any recent disasters.\105\ Two other
commenters requested the pilot program be reinstated.\106\
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\104\ See <a href="https://www.huduser.gov/portal/publications/destech/DHAP.html">https://www.huduser.gov/portal/publications/destech/DHAP.html</a> for a HUD evaluation of DHAP that served Katrina and Rita.
\105\ FEMA-2021-0011-0149.
\106\ FEMA-2021-0011-0162 and FEMA-2021-0011-0235.
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Rather than reinstate DHAP,\107\ FEMA has instead developed and
implemented another form of Direct Temporary Housing Assistance called
Direct Lease. Direct Lease provides FEMA with the ability to lease
properties not generally available to the public directly from the
landlord to provide temporary housing to eligible survivors.\108\ Under
Direct Lease, eligible survivors pay no cost for rent (not including
utilities) for up to 18 months. FEMA matches survivors with available
housing that meets their needs and FEMA is able to place applicants
into Direct Lease within 4 to 6 weeks following a disaster
declaration.\109\
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\107\ Building off lessons learned from DHAP, HUD, and FEMA had
exploratory conversations regarding development of a new pilot
called Disaster Assistance Supportive Housing (DASH). However, DASH
is not currently being pursued.
\108\ The property must be an existing residential property, not
typically available to the general public (i.e., corporate
apartments, vacation rentals, and second homes) for use as temporary
housing.
\109\ In situations where pre-disaster HUD occupants are placed
into a FEMA-provided direct housing unit, HUD will engage with the
pre-disaster HUD assisted families to assist them in finding
permanent housing.
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Direct Housing
Several commenters mentioned Direct Housing Assistance. Four
commenters recommended FEMA should change regulations and policy to
allow FEMA to provide permanent housing solutions such as repairing
and/or rebuilding the applicant's damaged/destroyed dwelling.\110\ One
commenter desired more housing options outside of Transportable
Temporary Housing Units under Direct Housing Assistance,\111\ whereas,
another commenter wanted FEMA to provide more help to applicants on
their permanent housing plan.\112\ Lastly, one commenter wanted to
remind FEMA to ensure information provided to applicants meet relevant
fair housing and civil rights laws and notes that FEMA should enforce
those laws with entities with whom FEMA partners.\113\
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\110\ FEMA 2021-0011-0157, FEMA 2021-0011-0237, FEMA 2021-0011-
0269, and FEMA 2021-0011-0224.
\111\ FEMA 2021-0011-0261.
\112\ FEMA 2021-0011-0146.
\113\ FEMA 2021-0011-0235.
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FEMA's existing regulations at 44 CFR 206.117(b) and IAPPG 1.1
currently allow for the following forms of Direct Housing Assistance:
Transportable Temporary Housing Units, MLR, Direct Lease, and PHC. Per
42 U.S.C. 5174(c)(4), FEMA may only provide PHC assistance--in the form
of direct repairs or new construction--to individuals and households to
construct permanent or semi-permanent housing in insular areas outside
the continental United States. Per 42 U.S.C. 5174(c)(4)(A)-(B), FEMA
may also consider providing such assistance in other locations where no
alternative housing resources are available and other types of
Temporary Housing Assistance are unavailable, infeasible, or not cost-
effective.\114\ Such circumstances are extremely rare: FEMA has only
authorized PHC in the continental United States twice.\115\
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\114\ See 44 CFR 206.117(b)(4)(i)(F).
\115\ The factors that most commonly result in a need for PHC
outside the continental United States are a lack of temporary
housing resources and an inability to bring temporary housing into
an affected area due to high transportation costs.
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FEMA supports all direct housing occupants--owners and renters--in
achieving their Permanent Housing Plans \116\ through multiple
channels, including working with Voluntary Agency Liaisons \117\ and
DCM specialists
[[Page 4003]]
to identify and provide additional individualized services and
referrals for occupants, coordinating with the respective STT
government to jointly develop milestones for timely completion of
occupant transitions to permanent housing, and maintaining engagement
with the STT government and long-term recovery groups to identify State
or local housing programs that can continue to support survivors after
FEMA's direct housing mission closes. Furthermore, FEMA complies with
and requires all housing entities with whom the Agency contractually
partners to comply with Federal housing and civil rights laws. Lastly,
it is important to note that FEMA is undertaking an effort to improve
and streamline Direct Housing Assistance, which may include further
regulatory reforms.\118\
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\116\ Currently, permanent housing plan is defined at 44 CFR
206.111 to mean a realistic plan that, within a reasonable
timeframe, puts the disaster victim back into permanent housing that
is similar to the victim's pre-disaster housing situation. A
reasonable timeframe includes sufficient time for securing funds,
locating a permanent dwelling, and moving into the dwelling.
\117\ Voluntary Agency Liaisons establish and maintain
relationships among Federal and SLTT governments, as well as
voluntary, faith-based and community organizations active in
preparedness, response, and recovery; coordinate with Voluntary
Organizations Active in Disaster at the national, State,
Territorial, Tribal, and local levels; assist with translating and
navigating Federal programs for their stakeholders; provide
technical guidance and support with donations, unaffiliated and
spontaneous volunteer management; and collaborate with and support
non-government organizations that deliver an array of disaster
relief services to affected jurisdictions.
\118\ Direct Housing field operations coordinate with DCM and
Voluntary Agency Liaisons by hosting regular roundtable discussions
to discuss unmet needs and identify specific solutions for occupants
to help them achieve their permanent housing plans.
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Group Flood Insurance Policy
One commenter stated that the IA flood insurance requirements,
which attaches to property rather than people, can be a burdensome
expense for those on limited and fixed incomes.\119\ The commenter also
raised concern about FEMA's policy of determining an applicant
ineligible for disaster assistance when they have failed to maintain
flood insurance requirements established when the applicant received
the initial FEMA financial assistance that triggered the flood
insurance requirement. The commenter suggested FEMA consider extending
group flood insurance coverage to poor communities beyond 36 months.
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\119\ FEMA-2021-0011-0275.
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FEMA does not have the authority to remove the flood insurance
requirement absent a legislative change to the National Flood Insurance
Act of 1968 (NFIA). Under the Flood Disaster Protection Act of 1973,
FEMA may not approve any financial assistance for acquisition or
construction purposes for use in any Special Flood Hazard Area (SFHA)
where the sale of flood insurance has been made available under the
NFIA, 42 U.S.C. 4001 et seq., unless the building or mobile home and
any personal property to which such financial assistance relates is
covered by flood insurance in an amount at least equal to its
development or project cost. See 42 U.S.C. 4012a(a). As the commenter
notes, this requirement to maintain flood insurance applies to the
property, regardless of whether ownership is transferred.
While much of this comment touches on the National Flood Insurance
Program (NFIP) and is outside the scope of this IA rulemaking,\120\
FEMA understands that flood insurance policies may be cost prohibitive
for some disaster survivors as they are trying to recover from a major
disaster. A GFIP is a form of assistance that can help applicants who
have trouble affording an initial flood insurance policy. FEMA
establishes a GFIP for each disaster declaration that results from
flooding and is authorized for IA. FEMA's existing regulations at 44
CFR 206.119(d) provide that individuals identified by FEMA as eligible
for ONA as a result of flood damage caused by a Presidentially-declared
major disaster and who reside in a SFHA may be included in a GFIP
established under the NFIP regulations at 44 CFR 61.17.
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\120\ FEMA is working on many rulemakings to help the public
regarding the NFIP. See the following rules on FEMA's Unified Agenda
(UA): 1) 1660-AB06, the National Flood Insurance Program: Standard
Flood Insurance Policy (SFIP), Homeowner Flood Form. This rule would
revise the SFIP by adding a new Homeowner Flood Form and five
accompanying endorsements. The new Homeowner Flood Form would
replace the Dwelling Form as a source of coverage for homeowners of
one-to-four family residences. Together, the new Form and
endorsements would more closely align with property and casualty
homeowners' insurance and provide increased options and coverage in
a more user-friendly and comprehensible format. 2) 1660-AB11, NFIP's
Floodplain Management Standards for Land Management & Use, & an
Assessment of the Program's Impact on Threatened and Endangered
Species & Their Habitats. FEMA issued a Request for Information to
receive the public's input on revisions to the NFIP's floodplain
management standards for land management and use regulations. FEMA's
authority under the NFIA requires the agency to, from time to time,
develop comprehensive criteria designed to encourage the adoption of
adequate State and local measures. The agency is reviewing potential
actions to better align the NFIP minimum floodplain management
standards with our current understanding of flood risk, flood
insurance premium rates, and risk reduction approaches to make
communities safer, stronger, and more resilient to increased
flooding. FEMA is considering revisions to the minimum standards to
better protect people and property in a nuanced manner that balances
community needs with the national scope of the NFIP while also
incorporating opportunities for improving resilience in communities
that have been historically underserved. The agency is also
reviewing ways to further promote enhanced resilience efforts
through the Community Rating System and to strengthen NFIP
compliance with Section 7 of the Endangered Species Act.
---------------------------------------------------------------------------
Per IAPPG 1.1, FEMA directly purchases GFIP certificates on behalf
of applicants who are required to purchase and maintain flood insurance
but who may not otherwise be able to purchase a policy. This assistance
is provided as a part of the effort to reduce future expenses from
floods. As required by existing regulations at 44 CFR 206.119(a),
applicants must apply for and be denied an SBA loan before receiving a
GFIP certificate under ONA. This rule will remove this SBA requirement,
which increases the number of applicants in SFHAs that are eligible to
receive a 3-year policy from FEMA following a flood disaster.\121\
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\121\ An applicant who accepts an SBA loan with a flood
insurance requirement will not be considered for a FEMA-purchased
GFIP certificate in the same disaster as an applicant cannot hold
two flood insurance policies on one property.
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Habitability
A few commenters raised issues regarding the definition of
``uninhabitable,'' recommending that FEMA should revise the definition
to ensure it meets the needs of all disaster survivors and underserved
communities.\122\ One commenter stated that FEMA defines
``uninhabitable'' as a dwelling that is not safe, sanitary, or fit to
occupy, but that FEMA has no published standard that establishes when a
home is ``safe, sanitary, and functional.'' This commenter stated FEMA
must clearly define what constitutes a ``safe, sanitary, and functional
home.'' \123\ Another commenter stated that if a residence is deemed
``safe to occupy'' the applicant will be denied IHP assistance, as it
is presumed habitable, and that ``One Size Fits All'' Habitability
Standard is built on the faulty assumption that what is safe to occupy
for one is safe to occupy for all.\124\ This commenter also noted that
following Hurricane Harvey, FEMA did not consider the presence of mold
as a condition which would prevent safe occupation; therefore, many
were denied assistance. Another commenter argued that part of the
reason for fewer awards to low-income disaster survivors is likely
based on the implicit bias and inadequate training of its inspectors
but also that part of the reason lies in FEMA's standards for
determining when a disaster survivor's home is ``safe to occupy.''
\125\ This commenter also noted that despite applicants living in homes
with blue-tarped roofs, buckled floors, nonexistent foundations,
destroyed septic systems, and gaping holes, they were denied assistance
as their dwelling
[[Page 4004]]
was determined ``safe to occupy.'' Lastly, another commenter stated
that FEMA lacks ascertainable standards for equitable and impartial
distribution of Home Repair Assistance, which results in arbitrary,
subjective decisions about who gets Home Repair Assistance and how much
assistance is provided in each case.\126\
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\122\ FEMA-2021-0011-0260, FEMA-2021-0011-0152, and FEMA-2021-
0011-0286.
\123\ FEMA-2021-0011-0295.
\124\ FEMA-2021-0011-0152.
\125\ FEMA-2021-0011-0286.
\126\ FEMA-2021-0011-0310.
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Section 408 of the Stafford Act, 42 U.S.C. 5174, authorizes FEMA to
provide Housing Assistance to applicants who, as a direct result of a
major disaster, are displaced from their pre-disaster primary
residences or are left with pre-disaster primary residences that are
``uninhabitable'' or, with respect to individuals with disabilities,
are ``uninhabitable or inaccessible.'' FEMA's regulations at 44 CFR
206.111 defines ``uninhabitable'' as a dwelling that is not ``safe,
sanitary or fit to occupy.'' FEMA's regulations at 44 CFR 206.111
further defines ``safe'' and ``sanitary,'' but does not define ``fit to
occupy.'' ``Safe'' means secure from disaster-related hazards or
threats to occupants; ``sanitary'' means free of disaster-related
health hazards.
FEMA recognizes that current regulations limit assistance to
applicants with residences that incurred disaster-caused damage falling
short of immediate safety and sanitation concerns and prevents FEMA
from addressing or assessing the general livability issues when
determining Housing Assistance eligibility, and is making changes that
are expected to address these concerns. FEMA is revising the term
``uninhabitable'' to mean the dwelling is not safe or sanitary. FEMA is
revising the term ``safe'' to mean secure from hazards or threats to
occupants, and FEMA is revising the term ``sanitary'' to mean free of
health hazards. FEMA is also removing the requirement for disaster-
damaged real property components to be functional immediately before
the disaster in order to provide assistance for pre-existing damage
exacerbated by the disaster. This change will remove a discretionary
element for inspectors that is not required by the Stafford Act.\127\
As a result, applicants with minimal damage, who may be without the
means to pay for minimal repairs, or who are unable to complete the
work themselves, will be eligible for Home Repair Assistance.
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\127\ In coordination with the publication of this rule, FEMA
will ensure its training and instructional materials are updated to
ensure all relevant FEMA staff are apprised of and are able to
implement the changes.
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Hazard Mitigation Under IHP
Eleven commenters stated that FEMA should allow recovery funds to
be used toward making resilient upgrades that offer greater protection
against future disasters, with one commenter specifically noting that
this would be particularly helpful in flood prone areas.\128\ Another
commenter noted the recent changes made to IHP assistance provide funds
toward hazard mitigation measures; however, they stated that these
funds are specifically for wind and flood events. This commentor
believed that these funds should also be extended to wildfire and
earthquake events.\129\
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\128\ FEMA-2021-0011-0151, Attachment 1; FEMA-2021-0011-0206;
FEMA-2021-0011-0209; FEMA-2021-0011-0221; FEMA-2021-0011-0224; FEMA-
2021-0011-0237; FEMA-2021-0011-0270; FEMA-2021-0011-0271; FEMA-2021-
0011-0278; FEMA-2021-0011-0285; and FEMA-2021-0011-0303.
\129\ FEMA-2021-0011-0261. At the time of this comment, FEMA was
only providing hazard mitigation assistance for items in wind and
flood events. However, in August of 2022, FEMA added two fire-
specific hazard mitigation items, i.e., covering for attic vents,
crawlspace vents, and vents in enclosures below decks and non-
combustible gutter and leaf guards. FEMA continues to explore hazard
mitigation under the IHP to include funds for additional mitigation
measures, some targeted toward additional disaster causes.
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FEMA recognizes that helping disaster survivors address hazard
mitigation measures while repairing their homes from disaster damage
will help make their homes more resilient. Therefore, using our
authority under Section 408(c)(2)(A)(ii) of the Stafford Act, 42 U.S.C.
5174(c)(2)(A)(ii), FEMA began including additional assistance for
mitigation in Home Repair Assistance awards for disasters declared on
or after May 26, 2021.\130\
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\130\ See pages 86-88 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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Prior to this IFR, hazard mitigation under IHP is awarded as part
of Home Repair Assistance for specific real property components that
existed and were functional prior to the disaster--roof, water heater,
furnace, and main electrical panel.\131\ Hazard mitigation measures are
intended to minimize future damage to owner-occupied residences and are
subject to the IHP maximum amount of Home Repair Assistance. FEMA plans
to expand hazard mitigation under IHP in the future to include funds
for additional mitigation measures, some targeted toward additional
disaster causes.
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\131\ Prior to this IFR, in order to receive IHP assistance
toward hazard mitigation efforts, the component needs to have been
functional prior to the disaster.
---------------------------------------------------------------------------
This IFR will allow FEMA to include mitigation for components that
were not functional prior to the disaster when the damage to the
component is worsened by the disaster.
Home Repair Assistance
Seven commenters raised concern regarding FEMA's delivery of Home
Repair Assistance,\132\ specifically focusing on how FEMA addresses
pre-existing damage.
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\132\ FEMA-2021-0011-0033, FEMA-2021-0011-0149, FEMA-2021-0011-
0194, FEMA-2021-0011-0199, FEMA-2021-0011-0245, FEMA-2021-0011-0277,
and FEMA-2021-0011-0310.
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Per Section 408 of the Stafford Act, 42 U.S.C. 5174, FEMA may
provide financial assistance for the repair of owner-occupied private
residences, utilities, and residential infrastructure (such as a
private access routes) damaged by a major disaster to a safe and
sanitary living or functioning condition; and eligible hazard
mitigation measures that reduce the likelihood of future damage to such
residences, utilities, or infrastructure.
As part of this rule, FEMA is removing the requirement for real
property components to be functional immediately before the disaster to
provide assistance for pre-existing damage that has been further
damaged by the disaster. When a component of the home with pre-existing
damage is further damaged by the disaster, FEMA may provide assistance
to fully repair or replace the item (as appropriate) rather than
denying assistance solely because not all damage was caused by the
disaster.
One comment suggested FEMA focus its efforts on providing permanent
repairs to disaster-damaged homes using a sliding scale benefit.\133\
FEMA has limited statutory authority to provide direct repairs via
PHC--i.e., per Section 408(c)(4) of the Stafford Act, 42 U.S.C.
5174(c)(4), FEMA may only provide financial assistance or direct
assistance--in the form of direct repairs or new construction--to
individuals and households to construct permanent or semi-permanent
housing in insular areas outside the continental United States. or
other areas where no alternative housing resources are available and
other types of Temporary Housing Assistance are unavailable,
infeasible, or not cost-effective. Because FEMA is authorized under
statute to provide such assistance only in these limited circumstances,
FEMA has only implemented this type of direct assistance twice before
in the continental United States.
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\133\ FEMA-2021-0011-0269.
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[[Page 4005]]
Homelessness
Four commenters voiced concern over the lack of FEMA guidance to
State, local, and Tribal governments on how to handle people
experiencing homelessness during a disaster, the lack of resources
available for people experiencing homelessness during or after a
disaster, and the need for more programs dedicated to those
experiencing homelessness.\134\
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\134\ FEMA-2021-0011-0235, FEMA-2021-0011-0277, FEMA-2021-0011-
0295, and FEMA-2021-0011-0310.
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Per Section 408(a)(1) of the Stafford Act, 42 U.S.C. 5174(a)(1),
FEMA's IHP assistance is intended to assist with disaster-caused
losses; therefore, issues related to pre-disaster homelessness are
outside the scope of the program. FEMA does not provide Housing
Assistance (Rental Assistance, Direct Assistance, Home Repair
Assistance, or Home Replacement Assistance) to applicants experiencing
pre-disaster homelessness if their need for housing or shelter was not
caused by the disaster. However, applicants experiencing pre-disaster
homelessness may be eligible for certain types of ONA (Transportation
Assistance, Medical and Dental Assistance, Funeral Assistance, and
Child Care Assistance). Further, applicants whose pre-disaster
residence was a tent or other form of nontraditional housing could be
considered for limited housing assistance (2-month initial Rental
Assistance and Lodging Expenses Reimbursement) if a public official or
homelessness advocate verifies a disaster survivor's occupancy and if
that individual meets all other eligibility requirements.
While FEMA may be limited in the types of assistance it can provide
to pre-disaster homeless individuals, there are other Federal, State,
or local government resources that are more readily available for this
population, e.g., HUD's Emergency Solutions Grants Program or HUD's
Rapid Unsheltered Survivor Housing Program.
Applicants experiencing homelessness as a result of the disaster--
for example, those whose pre-disaster residences were destroyed due to
a disaster--may be considered for various types of financial Housing
Assistance to include Lodging Expense Reimbursement, Rental Assistance,
Home Repair Assistance, and Replacement Assistance, to meet their
disaster housing needs. Additionally, if a direct housing mission is
approved for the disaster, they could be eligible for a direct housing
unit depending on the level of damage incurred to their pre-disaster
residence and on whether they have not been able to use any FEMA-
provided Rental Assistance.
IHP File
A few commenters raised issues regarding FEMA's process for
applicants to request a copy of their IHP file, stating that it is
unnecessarily complex.\135\ One commenter argued that it is excessive
and unnecessarily burdensome to require applicants to obtain notary
signatures or provide the penalty of perjury statement in order to
access their IHP file. This commenter reasoned that IHP file
information should be accessible through one online portal.\136\
Another commenter argued that when applicants request a copy of their
file, FEMA does not provide access to all specific information used to
make FEMA's decision such as pictures, home and property damage
descriptions, and eligibility decisions, including include how FEMA
calculates the awards and inspection line-item pricing. This commentor
also noted that to access this type of information, applicants must
file a Freedom of Information Act request.\137\ Lastly, one commenter
stated that FEMA should develop a streamlined process including a
central point of contact for State-led agencies and other disaster
relief organizations to obtain applicant information required to
provide further recovery assistance years following the disaster
declaration.\138\
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\135\ FEMA-2021-0011-0149 and FEMA-2021-0011-0277.
\136\ FEMA-2021-0011-0149.
\137\ FEMA-2021-0011-0295.
\138\ FEMA-2021-0011-0275.
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There are multiple statutes which govern what information FEMA may
collect and how that information may be shared. The Stafford Act allows
FEMA to collect personal information to determine eligibility and
administer FEMA disaster assistance as a result of an emergency or a
Presidentially declared disaster. See 42 U.S.C. 5121-5207.
As outlined on page 67 of IAPPG 1.1, applicants may submit a
written, signed request for a copy of FEMA's records related to their
registration for IHP assistance.\139\ The request must specifically
state what information the applicant would like to receive (e.g.,
entire file copy, copy of all correspondence from FEMA, etc.) \140\ and
who is to receive the requested information (e.g., self, attorney,
friend, etc.). For identity verification purposes, the request must
include, among other requirements, the applicant's signature with
either a notary stamp or seal or the statement: ``I hereby declare
under penalty of perjury that the foregoing is true and correct.''
Applicants have the ability to create an online account, via
<a href="http://www.DisasterAssistance.gov">www.DisasterAssistance.gov</a>, where they may access a high-level overview
of their application, including eligibility determinations and letters
provided by FEMA, upload documentation, and change some information.
Current system limitations prevent FEMA from including information such
as pictures, home and property damage descriptions, and inspection
line-item pricing. However, FEMA is developing a new system with
increased capabilities.\141\ Once such increased capabilities are
developed, nothing in this rule will prevent FEMA from implementing
them. Information on how FEMA calculates awards and determines
eligibility are available to the public via the IAPPG.
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\139\ Applicants may alternatively choose to complete, sign, and
return the Authorization for the Release of Information Under the
Privacy Act form (OMB No. 1660-0061) to request a copy of their file
and authorize the release of information.
\140\ Note that line-item pricing is not part of an applicant's
IHP file and therefore is not included in requests for copies of IHP
files. While NEMIS can provide a summary of the items viewed or
noted during inspection, it does not include the line-item pricing.
\141\ FEMA is in the very early stages of the Systems
Engineering Lifecycle and Acquisition process. The Agency is working
to complete all requisite documentation needed for gate reviews, and
have requested funding via the Program Decision Option process to
support completely modernizing the functionality currently provided
by the legacy on-premises NEMIS-IA system. This will be a multi-year
effort.
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FEMA continues to work alongside its State, local, Tribal and
Territorial partners to ensure that disaster recovery resources and
services are not delayed or hindered by data collection and sharing
concerns. Following a disaster, FEMA establishes a Joint Field Office
(JFO), which is the appropriate central point to work with the State
and disaster-relief organizations for the disaster. Once the JFO
closes, those duties would devolve to the FEMA Region, unless a long-
term field office is set up to handle disaster-related concerns. FEMA
has processes in place to assist States, Tribes, and Territories with
information sharing. These entities work with the FEMA staff assigned
to coordinate with them for a specific disaster. This is the standard
process that FEMA utilizes when responding to disaster-specific
requests of all types from States, Tribes, and Territories.
Insurance
One commenter stated that the Stafford Act needed to be amended so
that Federal assistance would not be considered a duplication of
benefits
[[Page 4006]]
with received insurance proceeds.\142\ Statutory changes are outside
the scope of this rulemaking.
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\142\ FEMA-2021-0011-0153.
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Loss Verification
Twenty-three comments were received regarding FEMA's loss
verification methods,\143\ referencing FEMA's inspection process and
describing it as slow, subject to human error, costly, and
disproportionally impacting historically disadvantaged populations.
While three commenters stated FEMA should utilize more geospatial
technology or develop remote technology capabilities, one commenter
\144\ noted concern over the remote inspector process established by
FEMA during COVID-19, stating that it disadvantaged disaster survivors
by creating additional documentation burdens, which particularly
impacted those who were least able to access technology or local
assistance. Another commenter noted their concern that the loss
verification process prioritized property values rather than examining
the full impact of the housing loss, thereby adversely impacting
whether an applicant would be considered eligible for Direct Housing
Assistance. Lastly, one commenter specifically stated that FEMA, during
inspection, should count damages to mobile homes as personal property
losses.
---------------------------------------------------------------------------
\143\ FEMA-2021-0011-0033, FEMA-2021-0011-0147, FEMA-2021-0011-
0151, FEMA-2021-0011-0153, FEMA-2021-0011-0159, FEMA-2021-0011-0162,
FEMA-2021-0011-0163, FEMA-2021-0011-0169, FEMA-2021-0011-0199, FEMA-
2021-0011-0206, FEMA-2021-0011-0208, FEMA-2021-0011-0221, FEMA-2021-
0011-0256, FEMA-2021-0011-0261, FEMA-2021-0011-0270, FEMA-2021-0011-
0271, FEMA-2021-0011-0275, FEMA-2021-0011-0277, FEMA-2021-0011-0282,
FEMA-2021-0011-0285, FEMA-2021-0011-0295, FEMA-2021-0011-0302, and
FEMA-2021-0011-0310.
\144\ FEMA-2021-0011-0169.
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Once disaster survivors register for assistance, FEMA is required
to verify losses to determine their eligibility for IHP assistance.
FEMA uses multiple loss verification methods, including onsite and
geospatial inspections as well as submitted documentation. FEMA may, at
its discretion, determine other methods of verification (i.e., remote
inspections) that will be used to help verify loss and deliver
assistance.\145\ FEMA may also review and verify documentation for
disaster-caused losses that cannot be verified through on-site or
geospatial inspections.
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\145\ FEMA uses a variety of techniques and technologies when
conducting geospatial inspections. This includes using aerial and
satellite photography and remote sensing technologies. For remote
inspections, FEMA inspectors will contact applicants via phone and
complete the standard onsite inspection process remotely based on
responses from the applicant.
---------------------------------------------------------------------------
FEMA inspectors are trained to identify post-disaster damage and
record all appropriate evidence of any disaster damage. Home and/or
property values are not considered during damage verification. While
there are numerous checks and balances in place to verify consistent
and accurate damage assessments, FEMA continues to explore ways to
improve its loss verification methods.
Per IAPPG 1.1, FEMA may provide financial assistance to repair an
owner-occupied primary residence, utilities, and residential
infrastructure, including private access routes damaged as a result of
a Presidentially-declared disaster up to the financial Housing
Assistance maximum award. Home Repair Assistance is intended to make
the damaged home safe, sanitary, or functional. Damage to real property
components of the applicant's home is addressed under the IHP's Home
Repair Assistance, regardless of the type of home. Mobile homes have
unique real property components, and damage to these items are captured
during inspection. Personal Property is not dependent on the type of
home and is recorded under ONA.
Multifamily Lease and Repair
One commenter stated that FEMA should make more effort to aid
residents of multifamily housing units in the wake of disasters.\146\
---------------------------------------------------------------------------
\146\ FEMA-2021-0011-0268.
---------------------------------------------------------------------------
Section 408 of the Stafford Act, 42 U.S.C. 5174, limits IHP
assistance to individuals and households; \147\ therefore, in
situations where multifamily housing units, such as a condominium, are
damaged by a disaster, FEMA only provides financial Housing Assistance
and ONA to owner-occupants for eligible disaster-caused damages to
areas the owner is responsible for within their unit. These types of
assistance do not cover repair for disaster-caused damage to
multifamily housing units for structural elements (e.g., roof, exterior
walls, chimneys, and shared foundation) and common areas shared by all
residents such as recreational facilities, outdoor space, parking,
landscaping, fences, laundry rooms, and all other jointly-used space,
unless these spaces are the individual's responsibility.
---------------------------------------------------------------------------
\147\ 44 CFR 206.113(b)(9) further limits assistance by stating
that FEMA may not provide IHP assistance for business losses,
including farm businesses and self-employment.
---------------------------------------------------------------------------
FEMA may provide Direct Temporary Housing Assistance to eligible
applicants in the form of temporary rental units made available through
repairs or improvements to existing, vacant multifamily housing units
(e.g., apartments). Under the Multifamily Lease and Repair program,
FEMA may enter into lease agreements with owners of multifamily
properties located in a disaster area and make repairs or improvements
(including to structural elements and common areas of the multifamily
properties) to provide temporary housing to eligible applicants. FEMA
may utilize units repaired or improved under Multifamily Lease and
Repair as temporary housing for eligible applicants who are unable to
use Rental Assistance due to a lack of available resources. This type
of Direct Temporary Housing Assistance is intended to repair or improve
individual units to re-house existing tenants.\148\
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\148\ For additional information about Multifamily Lease and
Repair, please see pages 107 to 112 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
---------------------------------------------------------------------------
Non-Traditional Housing
One commenter stated that FEMA does not recognize applicants who
live in non-traditional housing such as ``boats, yurts, and travel
trailers.'' The commentor requested that FEMA consider these as viable
places of residence and recognize them for compensation.\149\
---------------------------------------------------------------------------
\149\ FEMA-2021-0011-0149.
---------------------------------------------------------------------------
Per Chapter 3: II.B.10. of IAPPG 1.1,\150\ eligible applicants who
live in travel trailers and boats may be eligible for Home Repair
Assistance and Home Replacement Assistance. Applicants residing in
yurts and other unique homes may also receive Home Repair Assistance
for any damaged structural elements of the home. However, Home Repair
Assistance and Home Replacement Assistance is not available for other
non-traditional forms of housing if they do not have structural
elements to assess and calculate a repair or replacement award (e.g.,
tents). By policy, FEMA defines non-traditional housing as a form of
dwelling void of structural floor, structural walls, and structural
roof. Applicants who reside in non-traditional housing who are able to
verify occupancy may be eligible for initial Rental Assistance, Lodging
Expense Reimbursement, and all types of Other Needs Assistance.
---------------------------------------------------------------------------
\150\ See page 62 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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Ownership/Occupancy
All 26 comments received regarding FEMA's verification of applicant
ownership and/or occupancy of their
[[Page 4007]]
disaster-damaged dwelling were consistent with one concern: the
applicant's burden of proving ownership and/or occupancy, especially in
relation to properties being passed down via heirship.\151\
---------------------------------------------------------------------------
\151\ FEMA-2021-0011-0033, FEMA-2021-0011-0149, FEMA-2021-0011-
0153, FEMA-2021-0011-0163, FEMA-2021-0011-0194, FEMA-2021-0011-0199,
FEMA-2021-0011-0207, FEMA-2021-0011-0235, FEMA-2021-0011-0236, FEMA-
2021-0011-0245, FEMA-2021-0011-0255, FEMA-2021-0011-0259, FEMA-2021-
0011-0260, FEMA-2021-0011-0261, FEMA-2021-0011-0265, FEMA-2021-0011-
0273, FEMA-2021-0011-0275, FEMA-2021-0011-0276, FEMA-2021-0011-0277,
FEMA-2021-0011-0282, FEMA-2021-0011-0286, FEMA-2021-0011-0293, FEMA-
2021-0011-0302, FEMA-2021-0011-0305, FEMA-2021-0011-0306, and FEMA-
2021-0011-0310.
---------------------------------------------------------------------------
Per IAPPG 1.1, FEMA verifies occupancy through an automated public
records search or submitted documents. In locations where automated
verification of public records is limited, FEMA may partner with
applicable authorities from the State, local, Tribal, or Territorial
government to verify ownership or occupancy. When FEMA is unable to
verify an applicant's occupancy of their disaster-damaged primary
residence, the applicant may provide FEMA with documentation for
verification. Based on comments submitted via the April 22, 2021 RFI,
FEMA updated its automated public records criteria along with its
policy to provide more documentation flexibilities for verifying
occupancy. Specifically, as outlined in the Amendment to FEMA Policy
(FP) 104-009-03, Individual Assistance Program and Policy Guide
(IAPPG), Version 1.1 memorandum, dated September 2, 2021, FEMA will now
accept social service organization documents, local school documents,
Federal or State benefit documents, motor vehicle registration,
affidavits of residency or court documentation, and mobile home park
documents in addition to the documentation options listed in IAPPG 1.1
to verify occupancy. Furthermore, as an option of last resort, FEMA may
accept a written self-declarative statement from applicants whose pre-
disaster residence was a mobile home or travel trailer or from
applicants living in insular areas, islands, and Tribal lands.
Like occupancy, when FEMA is unable to verify an applicant's
ownership of their primary residence, the applicant may provide FEMA
with documentation to prove ownership. Based on comments submitted via
the RFI, FEMA also updated its policy to provide more documentation
flexibilities in order to verify ownership. Specifically, as outlined
in the Amendment to FEMA Policy (FP) 104-009-03, Individual Assistance
Program and Policy Guide (IAPPG), Version 1.1 memorandum, dated
September 2, 2021, FEMA will now accept receipts for major repairs or
improvements, mobile home park letters, court documents, and a public
official's letter in addition to the documentation options listed in
IAPPG 1.1 to verify ownership. Furthermore, as an option of last
resort, FEMA may accept a written self-declarative statement from
applicants whose pre-disaster residence was a mobile home or travel
trailer, from applicants living in insular areas, islands, and Tribal
lands, and from applicants whose pre-disaster residence was passed down
via heirship.\152\
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\152\ Please see FEMA's Equity web page at Equity [bond]
<a href="http://FEMA.gov">FEMA.gov</a> (last visited July 2, 2022.)
---------------------------------------------------------------------------
Both occupancy and ownership verification may be completed upon
inspection if the applicant is able to show an acceptable document to
the inspector. FEMA inspectors, however, will not accept self-
declarative statements; this option of last resort must be mailed,
uploaded to the applicant's online account, or submitted in person at a
DRC.\153\ For those applicants who are still unable to prove occupancy
and ownership, FEMA will conduct proactive outreach via casework to
ensure all eligible applicants are able to receive assistance.
---------------------------------------------------------------------------
\153\ FEMA inspectors do not have the ability to upload
documentation into an applicant's file. Applicants may submit a
self-declarative statement to FEMA by either mail, uploading the
document into their online www.disasterassistance.gov account, or by
visiting a DRC, where a FEMA employee may upload the document into
their file.
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Period of Assistance
Five commenters requested that the current period of assistance be
extended or for there to be options in which it could be extended on an
individual disaster basis.\154\ One of the commenters stated that some
applicants who received FEMA assistance to fix their homes had
contractors take money for the repairs but not complete the work, that
FEMA should take on the burden of the lost money, or otherwise ensure
that the work is properly completed, and that assistance from FEMA
should only be complete when the people in a household are fully,
safely housed again.\155\
---------------------------------------------------------------------------
\154\ FEMA-2021-0011-0153, FEMA-2021-0011-0163, FEMA-2021-0011-
0253, FEMA-2021-0011-0274, and FEMA-2021-0011-0277.
\155\ FEMA-2021-0011-0274.
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Section 408(c)(1)(B)(iii) of the Stafford Act, 42 U.S.C.
5174(c)(1)(B)(iii), limits IHP assistance to 18 months following the
date of the disaster declaration. The period of assistance begins at
the date of the Presidential disaster declaration and not the date on
which the disaster is designated for IA. FEMA may extend the period of
IHP assistance beyond 18 months due to extraordinary circumstances if
an extension would be in the public interest, and FEMA has implemented
this authority when warranted.\156\ As the period of assistance is
established in statute, it cannot be addressed in this rulemaking
effort.
---------------------------------------------------------------------------
\156\ The President has delegated authority to the Administrator
of FEMA to determine whether due to extraordinary circumstances an
extension of IHP assistance beyond the 18-month limit would be in
the public interest. See 42 U.S.C. 5174(c)(1)(B)(iii). Executive
Order 12148, Federal Emergency Management, July 20, 1979 and
Department of Homeland Security Delegation 9001.1. The FEMA
Administrator has delegated authority to the Assistant Administrator
for the Recovery Directorate to extend this period if they determine
that due to extraordinary circumstances an extension would be in the
public interest. See 44 CFR 206.110(e) and section G.4. of the
Federal Emergency Management Agency (FEMA) Delegation Number: FDA
112-002a-1 Issue Date: Oct. 30, 2020.
---------------------------------------------------------------------------
FEMA assistance is intended for disaster caused losses. Disputes
between contractors and individuals are private civil matters, in which
FEMA has no authority to intercede. These should be addressed by the
applicant through appropriate legal channels.
Rental Assistance
One commenter stated that FEMA must include clear guidance in its
policies to ensure that multifamily homes are treated in a fair and
equitable manner, including expanding the definition of ``household''
so that multiple families in one housing unit are counted as separate
households for purposes of calculating aid and are eligible for
separate rental assistance when needed.\157\ This situation is
addressed in current FEMA policy.\158\ FEMA may provide financial
assistance to pre-disaster homeowners or renters to rent alternate
housing if they are displaced from their primary residence as a result
of a Presidentially-declared disaster. While FEMA typically will award
Rental Assistance to the first individual who registers for the
household, if a multifamily household is unable to relocate together
due to extenuating circumstance, then FEMA may provide additional
Rental Assistance to the other members of the household. Additionally,
through this rule, FEMA is adding a new type of assistance--
Displacement Assistance--that will provide an additional resource to
applicants who must temporarily
[[Page 4008]]
relocate from their home as the result of damage from a Presidentially-
declared disaster. Displacement Assistance will be an award amount
based on the daily rate established by the STT government and is
intended to provide flexibility for applicants to address their short-
term lodging needs via hotels, motels, friends and family, or other
available options.
---------------------------------------------------------------------------
\157\ FEMA-2021-0011-0295.
\158\ See page 57 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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Another commenter stated that it is common in Puerto Rico for
multiple homes to be built on a single lot and to have the same address
and that this leads to a denial of assistance for the second family to
apply due to suspected duplication of benefits.\159\ Although FEMA did
previously encounter difficulties distinguishing between separate homes
on a single lot due to system limitations and lack of available third-
party data, we now have a better understanding of these arrangements
and have improved our processes \160\ to ensure the appropriate
assistance is provided to each family when FEMA can determine two
separate homes exist and the applicants meet all other eligibility
criteria.
---------------------------------------------------------------------------
\159\ FEMA-2021-0011-0292.
\160\ There are processes available in these types of unique
situations where multiple households reside in the same house or
there are multiple separate homes on the same property. In the case
of multiple separate homes on the same property, applicants must
demonstrate that the homes are separate structures, and for multiple
households in the same home, they must demonstrate that they have a
pre-disaster financial responsibility to the household, such as a
formal agreement supported by pre-disaster rent receipts, cancelled
checks, or money orders; pre-disaster lease, landlord's written or
verbal statement, or rental agreement; or pre-disaster major utility
bills.
---------------------------------------------------------------------------
Renter Assistance
Ten commenters stated that FEMA assistance is prioritized for
homeowners and that programs and services need to be expanded to
include renters and/or provide more assistance programs to benefit
renters.\161\ One commenter stated that FEMA should afford minority and
poor families the opportunity to move to neighborhoods that are safer,
the schools are better, and jobs are more available.\162\ This
commenter also suggested that the choice of where to live must be built
into FEMA housing programs. Another commenter stated that FEMA provides
assistance for hotel stays, but there are not many programs that
provide rental assistance, security deposits, and application fees for
survivors that have to relocate.\163\ This commenter also stated that
providing flexible funding for renters to replace appliances,
furniture, clothing, and other necessary goods would be more
beneficial. One commenter stated that the application for continuing
Rental Assistance is onerous and difficult for survivors to complete.
Further, applicants must continue to work toward obtaining permanent
housing to remain eligible for continuing rental assistance.\164\
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\161\ FEMA-2021-0011-0293, FEMA-2021-0011-0271, FEMA-2021-0011-
0270, FEMA-2021-0011-0285, FEMA-2021-0011-0206, FEMA-2021-0011-0209,
FEMA-2021-0011-0221, FEMA-2021-0011-0262, FEMA-2021-0011-0274, and
FEMA-2021-0011-0187.
\162\ FEMA-2021-0011-0199.
\163\ FEMA-2021-0011-0275.
\164\ FEMA-2021-0011-0295.
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A few commenters suggested that FEMA should partner with HUD to
design resilient and affordable housing relocation solutions and follow
a similar approach to HUD's Community Development Block Grant--Disaster
Recovery (CDBG-DR) program for clients who want to remain in their
communities while reducing disaster risk.\165\ Lastly, two commenters
suggested longer-term, safe housing solutions that are affordable to
renters, arguing that once the funds are exhausted for renters, FEMA
transitional services are not timely or are complex processes causing
victims to experience a period of homelessness.\166\
---------------------------------------------------------------------------
\165\ FEMA-2021-0011-0231, and 0264.
\166\ FEMA-2021-0011-0256, and 0296.
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Some of these comments misconstrue FEMA policy. Per Section 408 of
the Stafford Act, 42 U.S.C. 5174, FEMA may only provide financial
assistance to repair an owner-occupied primary residence, utilities,
and residential infrastructure, including private access routes damaged
as a result of a Presidentially-declared disaster. FEMA does not have
the authority to provide repair assistance to renters or landlords not
occupying the damaged property as their primary residence.
Section 408 of the Stafford Act, 42 U.S.C. 5174, also states that
FEMA may provide financial assistance, i.e., Rental Assistance, to pre-
disaster homeowners or renters to rent alternate temporary housing if
they are displaced from their primary residence as a result of a
Presidentially-declared disaster. FEMA may also provide Continued
Temporary Housing Assistance (CTHA) to eligible applicants who
exhausted previously awarded Rental Assistance (for its intended use),
are unable to return to their pre-disaster residence because it is
uninhabitable, inaccessible, or not available due to the disaster, and
their post disaster housing costs represent 30 percent or more of their
post-disaster household income.\167\ This assistance may be provided
for up to 18 months or until the end of the 18-month period of
assistance, whichever comes first.\168\ FEMA will also award applicants
one additional month of rent when utilized for a security deposit. FEMA
does not dictate where renters may choose temporary housing; rather,
renters may choose where to live. Addressing the suggestion that FEMA
partner with HUD to design a CDBG-DR equivalent, FEMA notes that HUD is
a separate Federal agency with separate statutory authorities that
differ from FEMA's both in terms of the structure of the Agency's
programs and the objectives of those programs. Such a change is outside
the scope of this rulemaking. However, FEMA is currently working with
HUD on several housing issues in an effort to make better use of each
agency's authorities in support of disaster survivors.
---------------------------------------------------------------------------
\167\ See page 81 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
\168\ FEMA may certify pre-disaster renters, up to 18-months or
the end of the 18-month period of assistance, whichever comes first,
for continued rent assistance when adequate, alternate housing is
not available, or when they have not realized a permanent housing
plan through no fault of their own. FEMA may certify pre-disaster
owners for continued rent assistance, up to 18-months or the end of
the 18-month period of assistance, whichever comes first, when
adequate, alternate housing is not available, or when they have not
realized a permanent housing plan through no fault of their own.
---------------------------------------------------------------------------
FEMA agrees that renters should have equitable access to IHP
financial assistance. One type of assistance renters may currently
qualify for is Personal Property Assistance. Under Section 408(e)(2) of
the Stafford Act, 42 U.S.C. 5174(e)(2), FEMA may provide financial
assistance under the ONA provision of the IHP to repair or replace
personal property damaged or destroyed due to a disaster. FEMA
assistance to repair and replace personal property may be provided for:
appliances (standard household appliances such as refrigerator, washing
machine, etc.); clothing (essential clothing needed due to overall
loss, damage, or contamination); room furnishings (standard furnishings
found in a bedroom, kitchen, bathroom, and living room); and essential
tools (tools and equipment required by an employer for employment and
items required for education).
Additionally, FEMA is committed to improving its Renter Assistance
program in those areas where equity may be lacking. For example, as
part of this rule, FEMA is broadening the IHP to encompass any damage
to the applicant's primary residence that causes the home to be
unsuitable for occupancy. This change allows more renters with minimal
damages to qualify
[[Page 4009]]
for Rental Assistance if they must relocate for a short time while
repairs are made to their apartment.
As is discussed further below, FEMA is removing the requirement
that applicants must apply and be denied for an SBA disaster loan
before being considered for SBA-dependent ONA. Applicants may apply for
an SBA loan for additional funds if they have an unmet need, but
eligibility for Personal Property Assistance, Transportation
Assistance, and Group Flood Insurance Policies will no longer be
contingent on applying for and being denied for an SBA loan making them
available to more renters.
Another example of how FEMA is making strides towards equity
involves regulatory updates to CTHA. The rule update will add
flexibility regarding FEMA's ability to provide some continued
assistance without requiring substantial documentation from the
applicant. FEMA is also making updates to its CTHA policy and the
Application for CTHA forms so that applicants have a better
understanding of what documentation is needed at each step of the
process. Plus, the applicant having to work toward obtaining permanent
housing in order to remain eligible for continued rental assistance
increases the likelihood of successful recovery outcomes.
In addition, FEMA is implementing two new types of assistance,
Serious Needs Assistance and Displacement Assistance. Serious Needs
Assistance will provide funds to address immediate needs related to
sheltering, evacuation, or other emergent disaster expenses.
Displacement Assistance is intended to assist displaced applicants with
the cost of short-term living arrangements immediately following a
disaster.
SBA-Dependent ONA
The majority of commenters who commented on this requirement raised
the same concern: FEMA should remove the requirement for applicants to
apply for and be denied an SBA loan before receiving consideration for
IA grants. The commenters stated the process is unclear and places an
unnecessary burden on applicants; creates a disproportionate barrier;
and may, at best, lead to a delay in the registration process, or, at
worst, effectively block access to the grants.\169\ Two commenters
further expressed that forcing people to apply for an SBA loan after
the initial registration is a barrier and deterrent to applying for
help, especially in senior citizen communities as they do not want a
loan and most are on a fixed income; for black disaster survivors who
face their credit history being scrutinized without receiving tangible
assistance; and for renters with low incomes, and for members of
underserved communities, including people of color, who, many times,
have a greater need than middle-income survivors.\170\ Another
commenter argued that FEMA should automatically qualify the application
and denial steps of the SBA process for individuals who already receive
needs-based assistance such as food stamps, Supplemental Security
Income, and Social Security Disability Income to allow the most
vulnerable to receive assistance more quickly and easily.\171\ A few
commenters offered solutions, such as that FEMA actively coordinate
with the SBA to conduct pre-screening using SBA's established credit
score and citizenship requirements before referring applicants to the
SBA, and that FEMA's staff receive training on SBA-related issues and
be able to answer questions about any aspect of the SBA's process.\172\
One commenter stated that FEMA underassesses the needs of renters with
low-incomes, and for members of underserved communities, including
people of color, who seek to recover damaged personal property and
vehicles by first requiring an application for an SBA loan, which
causes delays in their application process.\173\ Lastly, one commenter
remarked that requiring an SBA loan denial as a prerequisite to
receiving emergency aid burdens the applicant and paves the way for
deeper poverty for survivors of natural disasters. This commentor
further explained their perception that the ease to extend debt
instruments (i.e., an SBA loan) is in stark contrast to the denial of
assistance due to the lack of legal documentation or a means to fight
unjust denials.\174\
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\169\ FEMA-2021-0011-0245, FEMA-2021-0011-0251, FEMA-2021-0011-
0255, FEMA-2021-0011-0275, and FEMA-2021-0011-0277.
\170\ FEMA-2021-0011-0245 and FEMA-2021-0011-0277.
\171\ FEMA-2021-0011-0245.
\172\ FEMA-2021-0011-0255 and FEMA-2021-0011-0275.
\173\ FEMA-2021-0011-0277.
\174\ FEMA-2021-0011-0306.
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FEMA's current regulations under 44 CFR 206.119(a)(1)-(3) state
that FEMA and the State may provide financial assistance to individuals
and households who have other disaster-related necessary expenses or
serious needs. Prior to this IFR, to qualify for assistance under this
section, an applicant must also apply to the SBA Disaster Home Loan
Program for all available assistance under that program; and be
declined for SBA Disaster Home Loan Program assistance; or demonstrate
that the SBA assistance received does not satisfy their total necessary
expenses or serious needs arising out of the major disaster. FEMA's
current 44 CFR 206.191(d) provides FEMA's sequence of delivery to
ensure uniformity in preventing duplication of benefits. The delivery
sequence pertains to that period of time in the recovery phase when
most of the traditional disaster assistance programs are available. The
delivery sequence includes in relevant part Housing Assistance pursuant
to Section 408 of the Stafford Act, 42 U.S.C. 5174; SBA and Farmers
Home Administration \175\ disaster loans; and then ONA, pursuant to
Section 408 of the Stafford Act, 42 U.S.C. 5174.
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\175\ The Farmers Home Administration is now administered by the
successor agencies of the Farmers Home Administration. The Farmers
Home Administration disaster loans are now the Department of
Agriculture disaster loans.
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Prior to this IFR, FEMA's regulations required SBA referrals, but
FEMA only required applicants whose self-reported income meets the
SBA's minimum income requirements to apply for and be denied an SBA
disaster loan before receiving consideration for SBA-dependent ONA, in
an effort to minimize the burden on and expedite assistance to
applicants whose income did not meet SBA's minimum income requirements.
Based on comments submitted via the RFI, the SBA, in coordination with
FEMA, raised the minimum income threshold so that more eligible lower
income applicants could be assisted by FEMA as opposed to referred to
SBA for a loan.
With this rule, FEMA is removing the requirement entirely that
applicants must apply and be denied for an SBA disaster loan before
being considered for SBA-dependent ONA. Removing this requirement will
ensure low income and other vulnerable disaster survivors who may not
have the means to obtain or repay a disaster loan due to their
financial condition have equitable access to disaster assistance while
also leveraging new ways to prevent duplication of benefits.\176\
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\176\ FEMA currently shares relevant data with the SBA, and will
continue to do so to ensure FEMA and the SBA continue to remain good
partners and stewards of taxpayer dollars. FEMA and the SBA will
continue to coordinate to ensure that FEMA assistance and SBA
disaster loans do not cause a duplication of benefits for the same
type of assistance.
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Just because an applicant already receives needs-based assistance
such as food stamps, SSI, and SSDI does not mean that they will be
eligible for FEMA assistance. The applicant will have to meet the IHP
eligibility
[[Page 4010]]
requirements which have no link to income for the majority of IHP
assistance. Therefore, FEMA cannot automatically qualify applicants for
IHP assistance based upon their already receiving food stamps, SSI, and
SSDI.
Self-Employed Workers
Two commenters stated that gig workers, artists, and other self-
employed individuals do not receive the same assistance as other
applicants.\177\ One of those commenters detailed that FEMA should
correct the inequity by extending eligibility to self-employed
individuals for necessary expenses and serious needs for repair or
replacement of tools, specialized or protective clothing and equipment
required by an employer as a condition of employment. The commenter
also stated that FEMA could streamline the process to remove obstacles
that delay assistance to self-employed workers by eliminating the FEMA
requirement for applicants to first apply for and be denied an SBA
disaster loan before self-employed workers are eligible for Personal
Property Assistance for necessary expenses and serious needs.\178\
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\177\ FEMA-2021-0011-0187 and FEMA-2021-0011-0200.
\178\ FEMA-2021-0011-0200.
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Prior to this IFR, per 44 CFR 206.113(b)(9), FEMA may not provide
IHP assistance for business losses, including farm businesses and self-
employment. Under current policy, self-employed individuals are
eligible for FEMA assistance for their personal losses except for
necessary expenses and serious needs related to business losses.\179\
Business losses include costs for essential tools, such as tool repair
or replacement, computing devices, supplies, and uniforms, which may
include specialized or protective clothing.
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\179\ See page 168 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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As part of this rule and in response to comments received during
the Agency's RFI, FEMA is amending its regulations to allow FEMA to
provide self-employed applicants with IHP financial assistance for
necessary expenses and serious needs as it relates to self-employed
applicants seeking assistance for the replacement of essential
tools.\180\ FEMA is also adding a new definition at 44 CFR 206.111 of
``essential tools'' to mean tools and equipment required for employment
and items required for education. The changes will allow FEMA to
provide assistance for disaster-damaged tools and equipment, or other
items required for a specific trade or profession, for self-employed
applicants, in their individual capacity.
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\180\ For self-employed applicants FEMA is requiring a written
statement from the applicant, including an itemized list of
essential tools, specialized or protective clothing, computing
devices, and equipment required for self-employment, and verifying
their need for the items. The statement must include ``I hereby
declare under penalty of perjury that the foregoing is true and
correct,'' and be signed by the applicant. Tax return documentation
are required to establish self-employment (e.g., Form 1040 or 1040-
SR, Schedule C, etc.).
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In addition, this rule will remove the requirement for applicants
to apply for and be denied an SBA loan before receiving ONA. For
additional information, refer to the SBA-Dependent ONA discussion in
section III.D.2 of this rule.
Single Application for Federal Assistance
Twenty-one commenters recommend merging the information collection
authorities that govern over 19 other Federal agencies in order to form
a single registration for disaster assistance.\181\ These commenters
point out how each of the separate registration processes of the
various agencies places an unnecessary burden on the survivor as they
try to recover from a disaster. One commentor also stated that the
current documentation requirements and duplicative registration
processes prevents them from receiving aid they would otherwise be
eligible to receive.\182\
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\181\ FEMA-2021-0011-0033; FEMA-2021-0011-0151 Attachment 1;
FEMA-2021-0011-0153; FEMA-2021-0011-0157; FEMA-2021-0011-0159; FEMA-
2021-0011-0187; FEMA-2021-0011-0204; FEMA-2021-0011-0206; FEMA-2021-
0011-0209; FEMA-2021-0011-0221; FEMA-2021-0011-0235; FEMA-2021-0011-
0236; FEMA-2021-0011-0237; FEMA-2021-0011-0256; FEMA-2021-0011-0270;
FEMA-2021-0011-0271; FEMA-2021-0011-0277; FEMA-2021-0011-0285; FEMA-
2021-0011-0293; FEMA-2021-0011-0295; FEMA-2021-0011-0302.
\182\ FEMA-2021-0011-0295.
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FEMA recognizes the complexities caused by multiple disaster
registration processes and that data sharing might make it easier for
survivors to access assistance. FEMA has previously examined whether a
streamlined, one-stop shop application could be created and has
identified statutory and administrative barriers that would prevent a
single agency from collecting and sharing as wide a range of
information as would be required for a unified application. A recent
Government Accountability Office (GAO) report highlighted the potential
benefits of a single application, but noted concerns about the
feasibility of such an application and about whether it would actually
reduce the complexity of Federal disaster recovery programs.\183\
However, within the spirit of these comments, and aligned with existing
authorities, FEMA is streamlining the application process to reduce the
burden on applicants, and plans to implement the streamlined process by
the end of this year.\184\ This effort will also help prepare FEMA's
technology platform to integrate with other Federal agency application
platforms in the future, but such integration will likely still require
multiple years of systems development. Nonetheless, FEMA continually
assesses its application process and is open to other changes that
would make it simpler or less burdensome for applicants.
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\183\ GAO-23-104956, Disaster Recovery: Actions Needed to
Improve the Federal Approach (November 15, 2022).
\184\ Once the streamlined applicant process is implemented,
survivors applying for disaster assistance will have the ability to
select the type of assistance they require and only have to answer
questions directly related to the specific types of assistance they
need. This will decrease the number of questions survivors need to
answer and reduce the time to complete their disaster application
online or at a FEMA Disaster Recovery Center.
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Transparency
Eight commenters raised transparency concerns regarding FEMA's IHP
policy and guidance. The comments focused mainly on how FEMA should
make public the policy and determination process it uses before IA
decisions are made.\185\ Five commenters stated that FEMA should make
FEMA's determination process for IA more transparent and accessible and
that FEMA regulations should be easier to find.\186\ Two of those
commenters also stated that there is a general lack of transparency
around FEMA's inspection process.\187\ One commenter stated that FEMA
denial codes used during Hurricane Harvey offer only vague reasons for
a denial of renters and low-income homeowners.\188\ This commenter also
believes FEMA made processing mistakes during Hurricane Harvey and is
refusing to release the data to allow for a proper determination if a
significant number of these denials were made incorrectly. One
commenter also noted that FEMA's eligibility codes are not publicly
accessible, and when found, they do not provide a detailed
[[Page 4011]]
explanation of the code.\189\ Another commenter stated that FEMA should
publicize the RSMeans amounts.\190\ Lastly, another commenter suggested
that FEMA should release information about the contracting process for
IA in a transparent and more equitable way.\191\
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\185\ FEMA-2021-0011-0206, FEMA-2021-0011-0209, FEMA-2021-0011-
0221, FEMA-2021-0011-0237, FEMA-2021-0011-0270, FEMA-2021-0011-0271,
FEMA-2021-0011-0286, and FEMA-2021-0011-0295.
\186\ FEMA-2021-0011-0033, FEMA-2021-0011-0245, FEMA-2021-0011-
0157, FEMA-2021-0011-0285 and FEMA-2021-0011-0277.
\187\ FEMA-2021-0011-0277 and FEMA-2021-0011-0285.
\188\ FEMA-2021-0011-0277.
\189\ FEMA-2021-0011-0199.
\190\ FEMA-2021-0011-0260.
\191\ FEMA-2021-0011-0275.
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The Stafford Act and FEMA's regulations at 42 U.S.C. 5174 and 44
CFR 206.101-120 govern IHP's eligibility criteria. The Stafford Act and
FEMA regulations are publicly available and can be found online by
searching on <a href="http://www.fema.gov">www.fema.gov</a> and <a href="http://www.ecfr.gov">www.ecfr.gov</a>.
FEMA embraces the tenets of transparency, participation, and
collaboration to support citizens and first responders to increase
government accountability, innovation, and effectiveness. To provide
greater transparency on the IHP, FEMA released the Individuals and
Households Program Unified Guidance (IHPUG) on September 30, 2016. The
IHPUG compiled FEMA policy for each type of assistance under the IHP
into one comprehensive document and was intended to serve as a singular
policy resource for State, local, Territorial, and Tribal governments,
and other entities who assist disaster survivors with post-disaster
recovery. The IHPUG was eventually superseded by the Individual
Assistance Program and Policy Guide, which was released on January 19,
2019. The IAPPG consolidated policy statements from all IA Programs to
include IHP, Mass Care and Emergency Assistance, and the Community
Services. On May 26, 2021, FEMA released FP 104-009-03, IAPPG 1.1,
which supersedes the IAPPG, Version 1.0. IAPPG 1.1 \192\ incorporates
policy changes to the IHP resulting from Disaster Recovery Reform Act
of 2018 (DRRA),\193\ and provides an updated guide to programs and
activities available to an affected State, local, Territorial, or
Tribal government following a disaster. Chapter 3.III.B. of the IAPPG
includes information of how FEMA verifies losses via inspections.
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\192\ See page 7 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
\193\ Disaster Recovery Reform Act of 2018, Public Law 115-254,
132 Stat. 3448 (Oct. 5, 2018), 42 U.S.C. 5174(h).
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To increase consistency in implementation, collaboration, and
knowledge sharing between State, local, Territorial, or Tribal
governments, FEMA, and other Federal and non-Federal entities who
assist disaster survivors, FEMA conducts a comprehensive review of IA
policies no less than every 3 years. If FEMA determines it necessary to
release new or updated policy language before the next scheduled
update, FEMA will update the electronic version of the IAPPG, issue a
memorandum describing the additions or updates, and post both documents
at <a href="http://www.fema.gov">www.fema.gov</a>.
FEMA continuously seeks to improve public awareness and
understanding of FEMA's programs. Some of the comments underestimate
the transparency of FEMA policy. Uniform eligibility criteria are
currently in place and available to the public. FEMA makes all
policies, fact sheets, guidance, news, and multimedia content available
online at <a href="http://www.fema.gov">www.fema.gov</a>. FEMA continually updates and assesses the
clarity and effectiveness of its IHP eligibility letters to ensure
applicants are properly informed of the reasons for and consequences of
FEMA's eligibility determinations, and how the decision may be
appealed. Applicants who do not understand FEMA's determination process
or have additional questions after receiving an eligibility letter can
call FEMA's Helpline to request additional information.
Existing technology for dissemination of disaster data includes
OpenFEMA.\194\ Building off of the DHS Open Government plan,\195\ the
OpenFEMA initiative proactively publishes data relevant to its mission
and in open formats that are easily accessible to the public. FEMA has
a long history of engaging non-profits, local communities and non-
governmental organizations (NGOs) and private entities to prepare for,
protect from, respond to, recover from and mitigate hazards. This
initiative aims to ensure FEMA is providing timely, usable, and
accurate data in a raw format to constituents. This enables
stakeholders to leverage the data in innovative and value-added ways.
The OpenFEMA database is widely used, receiving approximately 8 million
requests for data from roughly 64,000 unique visitors each month. Most
importantly, by proactively releasing information on an ongoing basis,
this initiative makes it easier to operationalize live data during a
disaster. FEMA will continue to leverage innovative methods to collect
and share data while adhering to all applicable laws and policies.
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\194\ See OpenFEMA, <a href="https://www.fema.gov/about/reports-and-data/openfema">https://www.fema.gov/about/reports-and-data/openfema</a>.
\195\ DHS, Open Government Plan 2016-2018 (Oct. 21, 2016),
available at <a href="https://www.dhs.gov/sites/default/files/publications/2016%20Open%20Government%20Plan_vFinal.pdf">https://www.dhs.gov/sites/default/files/publications/2016%20Open%20Government%20Plan_vFinal.pdf</a>.
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RSMeans, <a href="http://www.rsmeans.com">http://www.rsmeans.com</a>, is one of a number of commercial
sources that produces industry-accepted guides of construction cost
information to support estimating the repair or replacement cost of a
building. Under FEMA's contract with RSMeans, the company identifies
some of the costs to repair or replace damaged real and personal
property based on geographic area. FEMA may not share RSMeans amounts,
however, because the contract does not permit us to publicly post the
company's proprietary data.
Some of the comments touch on Mass Care and Direct Housing changes,
which are outside the scope of this rule. A separate effort is underway
to improve Direct Housing and other areas of IA that involve
contracting.
Also, in an effort to advance equity and improve program
administration, in August of 2022, FEMA began gathering demographic
information from disaster survivors that choose to provide it. This
data will be used to assess the impact of IA Programs on underserved
populations.
Transportation Assistance
One commenter noted that FEMA should provide resources to help
displaced households without access to cars obtain funding for
increased transportation costs (e.g., the use of Uber or Lyft).\196\
Another commenter stated that FEMA should provide transportation
assistance to applicants to use public transportation services (i.e.,
bus, metro).\197\
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\196\ FEMA-2021-0011-0235.
\197\ FEMA-2021-0011-0244.
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Per Section 408(e)(2) of the Stafford Act, 42 U.S.C. 5174(e)(2),
and as outlined on page 170 of the IAPPG 1.1, FEMA may provide
financial assistance under the ONA provision of the IHP to individuals
and households with disaster-caused vehicle repair or replacement
expenses. Unlike most other forms of IHP assistance, an applicant
seeking Transportation Assistance does not need to live in the
Presidentially-declared area to be considered for assistance.\198\ The
affected STT government establishes the maximum amount of
Transportation Assistance (i.e., Transportation Repair and
Transportation Replacement) that may be awarded. The amount of
Transportation Repair and Replacement Assistance awarded is based on
the degree of damage and the STT government's repair and replacement
maximum.
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\198\ See page 170 of IAPPG 1.1. <a href="https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf">https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf</a>.
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[[Page 4012]]
Understanding that applicants have serious and immediate needs
after a disaster, including for transportation costs, this rule revises
FEMA's regulations in order to establish Serious Needs Assistance.
Through these changes, FEMA will provide more immediate financial
assistance under the ONA provision of the IHP to applicants who have
necessary expenses or serious needs as a result of a disaster. Serious
needs may include but are not limited to: water, food, first aid,
infant formula, diapers, personal hygiene items, and fuel for or the
cost of transportation. FEMA's implementation of Serious Needs
Assistance will also provide funds to address immediate needs related
to sheltering, evacuating, or other emergent disaster expenses. As this
assistance is intended to provide applicants the financial means to
address immediate serious needs prior to FEMA's evaluation of their
eligibility for other disaster assistance programs, FEMA will limit
assistance to those applicants who are displaced from their pre-
disaster primary residence as a result of the disaster or who are
sheltering in their pre-disaster residence and report a need to shelter
elsewhere, and who assert they have a serious need at registration and
request financial assistance for those needs and expenses.
Utilities
One commenter stated that FEMA needed to provide more assistance to
applicants to ensure their utility bills are paid.\199\ FEMA may
provide assistance toward utility bills in limited circumstances. For
example, FEMA may provide financial assistance to pre-disaster
homeowners or renters to rent alternate temporary housing if they are
displaced from their primary residence as a result of a Presidentially-
declared disaster. FEMA awards eligible applicants initial Rental
Assistance based on the Fair Market Rent (FMR) established by HUD for
the county, parish, Tribal land, municipality, village, or district
where the pre-disaster residence is located and the number of bedrooms
the household requires. Utility costs are factored into the FMR rate
established by HUD. Additionally, should an applicant need continued
rental assistance, the cost of utilities is factored into the CTHA
award amount provided. Homeowners may also provide their pre-disaster
housing costs (to include utilities) in order to show a continued
financial need for CTHA. Under section 408 of the Stafford Act, 42
U.S.C. 5174(c)(1)(A), however, FEMA, is not able to provide assistance
for pre-disaster utility bills or for any utility bills from the
residence from which the applicant was displaced.
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\199\ FEMA-2021-0011-0033.
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Other Comments on IHP Delivery
One commenter raised the issue that FEMA's assistance is often
times proportional to the survivor's pre-disaster financial condition.
This commenter, and a few others, expressed that FEMA should prioritize
assistance to individuals with fewer resources or capabilities \200\
including underserved communities and individuals who are near or below
the poverty level and cannot afford insurance.\201\ Multiple commenters
expressed concern that FEMA's housing programs are overly complex to
navigate,\202\ especially for survivors whose first language is not
English.\203\
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\200\ FEMA-2021-0011-0005, FEMA-2021-0011-0159, and FEMA-2021-
0011-0236.
\201\ FEMA-2021-0011-0159.
\202\ FEMA-2021-0011-0159, FEMA-2021-0011-0265, and FEMA-2021-
0011-0276.
\203\ FEMA-2021-0011-0276.
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Two of those commenters suggested that FEMA should proactively go
into communities disproportionately impacted by emergencies to assist
survivors in navigating the process and accessing resources.
Specifically, these commenters noted that disaster survivors should be
able to access these resources without the need to apply for FEMA
assistance.\204\
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\204\ FEMA-2021-0011-0159, and FEMA-2021-0011-0265.
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One commenter noted that survivors with LEP experience delays in
recovery and often times receive denials for disaster assistance caused
by miscommunications and misunderstandings of document requirements and
lack of services to obtain equitable access to resources and
assistance.\205\ Another commenter expressed that FEMA should provide
assistance to local governments so that local officials could work
within the community to ensure disaster survivors understand where and
how to obtain disaster assistance. Alternatively, another commenter
believed that FEMA should provide better outreach to underserved
communities in order to inform and help survivors access and apply for
FEMA's programs.\206\
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\205\ FEMA-2021-0011-0193.
\206\ FEMA-2021-0011-0287.
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Three commenters suggested that FEMA should develop an internal
program and policy evaluation capacity which would reduce the need for
external review boards and inspector general audits that are more
costly to the U.S. taxpayer and burdensome to FEMA personnel but
results in little to no improvements in program equity.\207\
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\207\ FEMA-2021-0011-0163, FEMA-2021-0011-0224, and FEMA-2021-
0011-0254.
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Two commenters expressed that FEMA should apply the least
restrictive guidance regarding documentation requirements across all
jurisdictions to minimize administrative time, confusion, and
inconsistencies from disaster to disaster, expressing that one way to
start is for FEMA to apply more flexibility in its ``use of funds''
policy which would allow survivors to repurpose their rental assistance
for home repair or vice versa in order to prioritize their own recovery
needs.\208\ Two commenters expressed that FEMA's ``use of funds''
guidance leads to long wait times for FEMA assistance, communicates
distrust between government and residents, and leaves owners and
renters of substa
[…truncated; see source link]Indexed from Federal Register on January 22, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.