Proposed Rule2024-13898
Update of FEMA's Public Assistance Regulations
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
July 2, 2024
Issuing agencies
Homeland Security DepartmentFederal Emergency Management Agency
Abstract
The Federal Emergency Management Agency (FEMA, agency, or we) proposes to revise its Public Assistance program regulations to reflect current statutory authorities and implement program improvements. The proposed rule would incorporate changes brought about by amendments to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). FEMA is also proposing clarifications and corrections to improve the efficiency and consistency of the Public Assistance program.
Full Text
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[Federal Register Volume 89, Number 127 (Tuesday, July 2, 2024)]
[Proposed Rules]
[Pages 54966-55015]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13898]
[[Page 54965]]
Vol. 89
Tuesday,
No. 127
July 2, 2024
Part II
Department of Homeland Security
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Federal Emergency Management Agency
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44 CFR Part 206
Update of FEMA's Public Assistance Regulations; Proposed Rule
Federal Register / Vol. 89, No. 127 / Tuesday, July 2, 2024 /
Proposed Rules
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID FEMA-2023-0005]
RIN 1660-AB09
Update of FEMA's Public Assistance Regulations
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Emergency Management Agency (FEMA, agency, or we)
proposes to revise its Public Assistance program regulations to reflect
current statutory authorities and implement program improvements. The
proposed rule would incorporate changes brought about by amendments to
the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act). FEMA is also proposing clarifications and corrections
to improve the efficiency and consistency of the Public Assistance
program.
DATES: Comments must be submitted by September 3, 2024.
ADDRESSES: You may submit comments, identified by Docket ID FEMA-2023-
0005, via the Federal eRulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>. Search
for the Docket ID and follow the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Robert Pesapane, Director, Public
Assistance Division. Phone: (202) 646-3834. Email: <a href="/cdn-cgi/l/email-protection#4f292a222e623d2a2c20392a3d36623f2e623f2023262c360f292a222e612b273c61282039"><span class="__cf_email__" data-cfemail="d0b6b5bdb1fda2b5b3bfa6b5a2a9fda0b1fda0bfbcb9b3a990b6b5bdb1feb4b8a3feb7bfa6">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation and Request for Comments
II. Executive Summary
A. Background and Purpose of the Regulatory Action
B. Summary of Major Provisions
III. Discussion of the Proposed Rule
A. 44 CFR Part 206, Subpart A--General
B. 44 CFR Part 206, Subpart C--Emergency Assistance
C. 44 CFR Part 206, Subpart G--Public Assistance Project
Administration
D. 44 CFR Part 206, Subpart H--Public Assistance Eligibility
E. 44 CFR Part 206, Subpart K--Community Disaster Loans
IV. Regulatory Analysis
A. Executive Order 12866, as Amended, Regulatory Planning and
Review, Executive Order 13563, Improving Regulation and Regulatory
Review, and Executive Order 14094, Modernizing Regulatory Analysis
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. National Environmental Policy Act
E. National Historic Preservation Act of 1966
F. Endangered Species Act
G. Paperwork Reduction Act of 1995
H. Privacy Act/E-Government Act
I. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
J. Executive Order 13132, Federalism
K. Executive Order 11988, Floodplain Management
L. Executive Order 11990, Protection of Wetlands
M. Executive Orders 12898 and 14096, Environmental Justice
N. OMB Circular A-119, Voluntary Consensus Standards
O. Congressional Review of Agency Rulemaking
Table of Abbreviations
ADA Americans with Disabilities Act
CDL Community Disaster Loan
CFR Code of Federal Regulations
CPI-U Consumer Price Index for All Urban Consumers
CRA Congressional Review of Agency Rulemaking Act
DFA Direct Federal Assistance
DHS Department of Homeland Security
DRRA Disaster Recovery Reform Act
EA Environmental Assessment
EMAC Emergency Management Assistance Compact
FEMA Federal Emergency Management Agency
GAO Government Accountability Office
HOW Houses of Worship
HUD Department of Housing and Urban Development
NAC National Advisory Committee
NEPA National Environmental Policy Act
NIST National Institute of Standards and Technology
OMB Office of Management and Budget
PAPPG Public Assistance Program and Policy Guide
PKEMRA Post-Katrina Emergency Management Reform Act of 2006
PNP Private Nonprofit
PV Present Value
SBA Small Business Administration
SORN System of Records Notice
SRIA Sandy Recovery Improvement Act of 2013
Stafford Act Robert T. Stafford Disaster Relief and Emergency
Assistance Act
I. Public Participation and Request for Comments
Interested persons are invited to participate in this rulemaking by
submitting comments and related materials. We will consider all
comments and material received during the comment period.
If you submit a comment, include the Docket ID FEMA-2023-0005,
indicate the specific section of this document to which each comment
applies, and give the reason for each comment. All submissions may be
posted, without change, to the Federal eRulemaking 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. You
may wish to read the Privacy and Security Notice that is available via
a link on the homepage of <a href="http://www.regulations.gov">www.regulations.gov</a>.
For access to the docket to read background documents or comments
received, go to the Federal eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a>.
II. Executive Summary
A. Background and Purpose of the Regulatory Action
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.\1\ 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.\2\ 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,\3\ although other types may be authorized later.\4\ A
major disaster declaration may authorize all, or only particular types
of, supplemental Federal assistance requested by the Governor or Tribal
Chief Executive.\5\
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\1\ 42 U.S.C. 5170(a), (b); 44 CFR 206.36(a).
\2\ 42 U.S.C. 5170.
\3\ 44 CFR 206.40(a).
\4\ 44 CFR 206.40(c).
\5\ 44 CFR 206.40(a).
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One of the programs that may be authorized by a declaration is the
Public Assistance program, which provides a broad range of assistance
to State, Tribal, Territorial and local governments.\6\ It provides
assistance for
[[Page 54967]]
emergency protective measures, such as emergency evacuation,
sheltering, and debris removal, as well as financial assistance for the
permanent restoration of facilities.\7\ In addition, the Stafford Act
authorizes Community Disaster Loans for any local or Tribal government
that has suffered a substantial loss of tax and other revenues as a
result of a major disaster, and that demonstrates a need for financial
assistance to perform its governmental functions.\8\
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\6\ Generally, the State, Territorial, or Indian Tribal
government for which the emergency or major disaster is declared is
the recipient. The applicant is a State, Tribal, or Territorial
agency, local government, or eligible private nonprofit organization
submitting an application to the recipient for assistance under the
recipient's grant. Upon award, the recipient notifies the applicant
of the award, and the applicant becomes a subrecipient.
\7\ 42 U.S.C. 5170b, 5172, and 5173.
\8\ 42 U.S.C. 5184.
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FEMA proposes to amend its Public Assistance and Community Disaster
Loan program regulations to both improve program administration and
incorporate statutory changes relating to Public Assistance and
Community Disaster Loans. These include the Post-Katrina Emergency
Management Reform Act of 2006 (PKEMRA), Public Law 109-295, 120 Stat.
1394, the Security and Accountability for Every Port Act of 2006 (SAFE
Port Act), Public Law 109-347, 120 Stat. 1884, the Pets Evacuation and
Transportation Standards Act of 2006 (PETS Act), Public Law 109-308,
120 Stat. 1725, the Sandy Recovery Improvement Act of 2013 (SRIA),
Public Law 113-2, 127 Stat. 39, the Emergency Information Improvement
Act of 2015, Public Law 114-111, 129 Stat. 2240, the Bipartisan Budget
Act of 2018, Public Law 115-123, 132 Stat. 64, and the FAA
Reauthorization Act of 2018, Division D, Disaster Recovery Reform Act
of 2018 (DRRA), Public Law 115-254, 132 Stat. 3438.
B. Summary of Major Provisions
The proposed rule would amend the Public Assistance program
regulations at Title 44, part 206, of the Code of Federal Regulations
(CFR) to reflect current statutory authorities, clarify the
requirements for program eligibility, and improve program
administration. Most notably, FEMA proposes to:
<bullet> Incorporate PKEMRA:
[cir] Amend section 206.11 to include ``disability'' and ``English
proficiency'' in the list of the grounds upon which discrimination in
the provision of assistance is prohibited.
[cir] Amend section 206.221 to include performing arts facilities
and community arts facilities as eligible Private Nonprofit (PNP)
facilities.
[cir] Amend section 206.225 to cover essential assistance for the
rescue, care, shelter, and essential needs of household pets, service
animals, and assistance animals.
[cir] Amend section 206.226(c)(1) (proposed section 206.226(i)(1))
to include education in the list of critical services that qualify PNPs
to apply for Public Assistance without having first applied for an SBA
loan.
<bullet> Incorporate SRIA:
[cir] Amend section 206.228 to incorporate Public Assistance
Alternate Procedures for Debris Removal (Stafford Act section 428) to
make straight-time labor costs eligible for budgeted employees
conducting eligible debris removal activities.
[cir] Make revisions throughout 44 CFR part 206 to reflect that
Indian Tribal governments may act as recipients or subrecipients for
the Public Assistance program.
<bullet> Incorporate the Bipartisan Budget Act of 2018:
[cir] Amend the definition of ``private nonprofit organization'' in
section 206.2(19) and section 206.221 to clarify requirements for
houses of worship (HOWs) that may be exempt from the requirements to
apply for tax exempt status under Internal Revenue Code 501(c)(3) or
applicable State laws.
[cir] Amend definition of ``private nonprofit facility'' in section
206.221 to include HOWs and change the term ``essential governmental
service facilities'' to ``essential social services facilities.''
<bullet> Incorporate DRRA:
[cir] Amend section 206.12 to include long-term recovery groups,
domestic hunger relief organizations, and other relief organizations.
[cir] Amend section 206.201 to add definitions of the terms
``resilient'' and ``resiliency.''
[cir] Revise proposed sections 206.204(b)(4) and 206.226 to
eliminate funding reductions for alternate projects.
[cir] Amend definition of ``private nonprofit facility'' in section
206.221 to include ``center-based childcare'' facilities.
[cir] Amend definition of ``essential social service facility'' in
section 206.221 to include food banks.
[cir] Amend section 206.226(d) (proposed section 206.226(c)) to
incorporate the requirement to use the latest codes and standards.
<bullet> Remove the definition of ``emergency work'' in section
206.201 and refer to ``debris removal'' and ``emergency protective
measures'' separately in sections 206.204 (proposed section 206.205),
206.208 (proposed section 206.209), and 206.225, due to differing legal
criteria between debris removal and emergency protective measures.
<bullet> Amend section 206.202(d)(2) (proposed section
206.202(d)(4)) to apply the minimum threshold to each site within a
Project Worksheet (PW) rather than to the PW as a whole to prevent
applicants from improperly grouping together de minimis sites to reach
the threshold.
<bullet> Amend section 206.202(d) to provide deadlines for the
submission of certain work and cost documentation to avoid undue delay
and administrative cost and to help ensure timely recovery.
<bullet> Amend section 206.202(e) to remove a non-statutory
deadline previously imposed on FEMA for obligation of funds to provide
the necessary flexibilities to maintain the smooth administration of
the Public Assistance program.
<bullet> Amend section 206.205 (proposed section 206.206) to add
deadlines for the submission of small project certifications and large
project cost documentation to help ensure timely closeout of projects.
<bullet> Amend section 206.221 to reflect current Stafford Act
definitions, which include rehabilitational facilities and broadcasting
facilities.
<bullet> Amend section 206.225 to add paragraph addressing
temporary relocation of public and nonprofit facilities that provide an
eligible essential community service and define ``essential community
services.''
<bullet> Amend subpart K, ``Community Disaster Loans,'' to reflect
the current statutory loan maximums.
<bullet> Align terminology and definitions with 2 CFR part 200,
tailoring to FEMA authorities and requirements as needed.
III. Discussion of the Proposed Rule
This proposed rule would revise FEMA's Public Assistance program
and FEMA's Community Disaster Loan regulations to reflect current
statutory authority and agency practice. FEMA is also proposing
amendments to improve the efficiency and consistency of the Public
Assistance program and improve Public Assistance applicants'
understanding of the program. This rule would affect 44 CFR 206.2,
206.11-12, 206.62, 206.200-210, 206.220-228, 206.361, and 206.363-364.
Throughout this rule, FEMA proposes a number of non-substantive,
clarifying edits as follows, which will not generally be discussed
separately in the section-by-section analysis below. FEMA proposes to
revise the word ``shall'' to ``must'' or ``will'' and the word
``which'' to ``that'' as appropriate, consistent with current drafting
best practices. FEMA intends these edits to
[[Page 54968]]
clarify, but not change, the regulations' meaning. Similarly, this rule
proposes a number of non-substantive typographical corrections,
stylistic edits to improve clarity, and citation corrections. FEMA also
proposes to update references to various FEMA positions and offices to
reflect their current titles, such as replacing ``Disaster Assistance
Directorate'' with ``Recovery Directorate.'' Similar terminology
changes include replacing ``event'' with ``incident,'' to improve
clarity by matching the defined term in 44 CFR 206.32(e), and replacing
``grant'' with ``award,'' to improve clarity by matching the
terminology used in 2 CFR part 200.
FEMA proposes to replace references in its regulations to ``Project
Worksheet'' with the generic term ``Project Application'' \9\ because
FEMA is in the process of revising information collection 1660-0017,
Public Assistance Program, to, inter alia, refer to ``Project
Application'', where it previously referred to ``Project Worksheet.''
These proposed changes to FEMA's regulations would not change how the
form is used or processed in the Public Assistance program. Instead,
FEMA proposes this amendment to ensure clarity and consistency in the
regulations.
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\9\ When discussing other proposed changes in this rule, we use
the term ``Project Worksheets'' to avoid confusion.
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Additionally, FEMA proposes to redesignate various sections to
reflect the addition or removal of other sections and to update
internal cross-references accordingly. Further, the proposed rule
includes revisions to FEMA's regulations to reflect that Indian Tribal
governments (Tribal Governments or Tribes) may be recipients or
subrecipients for the purpose of Public Assistance, consistent with
section 1110 of SRIA.\10\ Finally, FEMA proposes to revise various
sections throughout the rule to make clear that, where appropriate, a
Regional Administrator's designee may take actions on his or her
behalf, such as reviewing proposals and approving extensions of time.
This is not a substantive change, but simply makes the use of a
designee explicit to improve clarity.
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\10\ Public Law 113-2, 127 Stat. 39, 47. Tribal declaration
requests are currently handled under FEMA's Tribal Declarations
Pilot Guidance, and this rule does not propose any changes to those
procedures. For more information, see Tribal Declarations Pilot
Guidance, <a href="https://www.fema.gov/disaster/tribal-declarations">https://www.fema.gov/disaster/tribal-declarations</a> (last
accessed June 12, 2024).
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In early preparation for this rulemaking, FEMA solicited input from
the Administrator's National Advisory Council (NAC). The NAC
recommended revisions to the Public Assistance regulations to reflect
FEMA's post-Katrina practices and post-Katrina legislative amendments
to the Stafford Act.\11\ The NAC's recommendations included improving
State administrative plans, streamlining and improving project
worksheets, and reimbursing State, Tribal, Territorial, and local
governments for force-account labor for emergency protective measures
and debris removal. Consistent with those recommendations, FEMA is
proposing updates to its regulations to reflect current statutory
authorities and agency practices. As is discussed in more detail below,
this rule proposes revisions to the project application process and
State administrative plan requirements and proposes adding a provision
that reflects the eligibility of straight-time force account labor for
debris removal, which FEMA previously implemented via policy.
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\11\ See NAC Memo, Recommendations on the Stafford Act and
Related Federal Regulations: Public Assistance and Individual
Assistance Issues (Aug. 19, 2008), available at <a href="https://www.fema.gov/pdf/about/nac/hp/stafford_act_rec_081908.pdf">https://www.fema.gov/pdf/about/nac/hp/stafford_act_rec_081908.pdf</a>.
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A. 44 CFR Part 206, Subpart A--General
i. Section 206.2 Definitions
Section 206.2 sets forth the defined terms that apply throughout 44
CFR part 206.
FEMA proposes to revise paragraph (a)(14) to clarify that the term
``hazard mitigation'' means any cost-effective measure intended to
reduce the potential for damage from a ``future'' disaster event.
Hazard mitigation does not address damage from disasters that have
already occurred. This is not a substantive change and is simply
intended to improve clarity.
Also, in paragraph (a)(14), FEMA proposes to change the word
``event'' to ``impacts.'' While throughout the rest of this rule we are
proposing to replace ``event'' with ``incident,'' to improve clarity by
matching the defined term in 44 CFR 206.32(e), in paragraph (a)(14), it
is more accurate to refer to the impacts of a disaster, since those
impacts are what mitigation measures seek to address. The use of this
term is consistent with FEMA's guidance on the subject.\12\ This is not
a substantive change and does not change the meaning of ``hazard
mitigation.'' Instead, we simply intend to improve clarity.
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\12\ See Public Assistance Program and Policy Guide, ver. 4, FP
104-002-2, at 153 (June 1, 2020) (PAPPG), available at <a href="https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf">https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf</a>. Version 5 of the Public Assistance
Program and Policy Guide is currently under review by the Office of
Information and Regulatory Affairs. FEMA will update the Public
Assistance Update final rule to reflect relevant amendments from
Version 5.
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In paragraph (a)(19)(i), FEMA proposes to update the outdated
reference to the Internal Revenue Code of 1954. The current authority
is the Internal Revenue Code of 1986, as amended.\13\
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\13\ Tax Reform Act of 1986, Public Law 99-514, sec. 2(a), 100
Stat. 2085, 2095.
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FEMA also proposes to add a new paragraph (a)(19)(iii) to discuss
the requirements for PNP organizations that are exempt from the
requirements to apply for Internal Revenue Code section 501(c)(3)
status or applicable State or Tribe tax exempt status. Instead of the
requirement under paragraphs (a)(19)(i) and (ii) that such an
organization must have an effective ruling letter from the Internal
Revenue Service or appropriate documentation from the State, FEMA
proposes that such an organization may establish their status through:
(1) articles of association, bylaws, or other organizing documents
indicating that it is an organized entity and (2) a certification that
it is compliant with section 501(c)(3) of the Internal Revenue Code and
State or Tribal law requirements. This proposed change is consistent
with current FEMA guidance on this issue.\14\
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\14\ See PAPPG at 43.
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We also propose adding a reference to Tribes in paragraph
(a)(19)(ii), to make clear that PNP organizations organized under
Tribal law do not need to provide documentation from a State due to
independent Tribal sovereignty.
Paragraph (a)(20) provides the general definition of ``Public
Assistance.'' The definition includes references to other sections in
the regulations that contain further information on Public Assistance.
We propose to amend those references to add subpart I, Public
Assistance Insurance Requirements, subpart J, Coastal Barrier Resources
Act, and subpart M, Minimum Standards, which provide additional detail
on the Public Assistance program, especially restrictions or
limitations on the amount of funding allowed in subparts G and H,
Public Assistance Project Administration and Public Assistance
Eligibility, respectively. We also propose to replace the words
``individuals and families'' with ``individuals and households,'' to
match the language used in section 408 of the Stafford Act. FEMA
intends this change to improve clarity and consistency and is not a
substantive change.
We propose adding new paragraphs (a)(26) and (a)(27) to include
definitions of the terms ``Tribal Authorized Representative'' and
``Tribal
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Coordinating Officer.'' These new paragraphs mirror the definitions of
``Governor's Authorized Representative'' and ``State Coordinating
Officer'' in (a)(13) and (a)(23). As with the other changes proposed
throughout this rule to add references to Indian Tribal governments,
these proposed definitions would create provisions for Tribal
governments equivalent to those already provided for State governments
to ensure consistency with the Stafford Act.
ii. Section 206.11 Nondiscrimination in Disaster Assistance
Section 689a of PKEMRA amended section 308(a) of the Stafford Act
to add ``disability'' and ``English proficiency'' to the list of
protected classes. Public Assistance grant recipients are already
prohibited from discrimination on these grounds under other laws as
codified in the DHS Standard Terms and Conditions \15\ and FEMA has
already expanded its civil rights compliance and enforcement activities
to include these two additional categories. FEMA now proposes to revise
paragraph 206.11(b) to reflect this. The revision would improve
consistency and clarity by making the list of classes in paragraph (b)
match the list in section 308(a) of the Stafford Act.
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\15\ See FY 2023 DHS Standard Terms and Conditions (Nov. 29,
2022), <a href="https://www.dhs.gov/sites/default/files/2023-01/FY%202023%20DHS%20Terms%20and%20Conditions%20Version%202%20Dated%20November%2029%202022.pdf">https://www.dhs.gov/sites/default/files/2023-01/FY%202023%20DHS%20Terms%20and%20Conditions%20Version%202%20Dated%20November%2029%202022.pdf</a>.
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In addition, although this proposed revision, and others discussed
below, originate from amendments to the Stafford Act, and do not
involve the exercise of agency discretion, they are consistent with the
principles of equity that FEMA seeks to advance in all its programs. We
hope that these changes to the regulations would help highlight these
provisions, such as nondiscrimination in disaster assistance, and their
importance in every part of FEMA's mission.
iii. Section 206.12 Use and Coordination of Relief Organizations
Section 309(a) of the Stafford Act authorizes the President to
utilize, with their consent, the personnel and facilities of certain
relief or disaster assistance organizations in providing relief and
assistance under the Act. Section 309(b) authorizes the President to
enter into agreements with these same organizations to coordinate their
disaster relief activities. This authority is codified in the
regulations at 44 CFR 206.12.
Section 1227 of DRRA amended section 309 of the Stafford Act to add
long-term recovery groups and domestic hunger relief and other relief
organizations to the lists of organizations whose personnel and
facilities may be used and with whom coordination agreements may be
entered into. Accordingly, FEMA proposes to revise paragraphs (a) and
(b) of section 206.12 to reflect this statutory change by replacing the
existing reference to ``other voluntary organizations'' with ``long-
term recovery groups, domestic hunger relief organizations, and other
relief or voluntary organizations.''
Also, in paragraph (b), FEMA proposes to revise ``American Red
Cross'' to ``American National Red Cross'' to match the name used in
section 309(b) of the Stafford Act.
B. 44 CFR Part 206, Subpart C--Emergency Assistance
In section 206.62, FEMA proposes non-substantive revisions related
to Indian Tribal governments. Specifically, current paragraphs (a)
through (c) and (g) mention assistance available to State and local
governments under an emergency declaration. Section 1110 of SRIA
extended this assistance to Indian Tribal governments,\16\ but they are
not mentioned in this section. FEMA proposes to add explicit references
to Indian Tribal governments to properly reflect this eligibility.
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\16\ Public Law 113-2, 127 Stat. 39, 47.
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C. 44 CFR Part 206, Subpart G--Public Assistance Project Administration
i. Section 206.200 General
Section 206.200 provides a general overview to Subpart G, which
governs the administration of the Public Assistance Program. We propose
numerous non-substantive changes to this section to make the language
more concise and move provisions to other sections in the regulations
where they are more logically connected. The proposed amendments,
however, would not remove any of the substantive provisions in Sec.
206.200 from part 206 entirely.
We propose to remove the headings of paragraphs (a) and (b), since
they are unnecessary and to be consistent with proposed paragraphs (c)
and (d), which would not have headings. We further propose to revise
paragraph (b) by simplifying its provisions. The first sentence of
current paragraph (b)(1) would be redesignated as paragraph (b); the
second sentence would be edited for clarity and designated as a new
paragraph (c), because it addresses recipient and subrecipient
responsibilities, rather than FEMA's responsibilities. We specifically
propose to remove the words ``we expect'' from proposed paragraph (c),
since adherence to the Stafford Act and FEMA's regulations is a clear
legal requirement.
Current paragraph (b)(2) discusses the applicability of the
``Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards,'' published at 2 CFR parts 200 and
3002. Since the specific applicability of 2 CFR part 200 is addressed
in other sections of subpart G,\17\ we propose to remove paragraph
(b)(2). The proposed rule would replace it with a new paragraph (d)
stating generally that the regulations at 2 CFR part 200 apply to all
Public Assistance grants and to all recipients and subrecipients of
Public Assistance grants except where those provisions are inconsistent
with the Stafford Act or FEMA's regulations. This is a non-substantive
change intended to improve clarity and readability.
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\17\ See current 44 CFR 206.202(a) (stating that the recipient
is ``responsible for processing subgrants to applicants under 2 CFR
parts 200 and 3002, and 44 CFR part 206, and your own policies and
procedures''); current 44 CFR 206.205(b) (stating that the recipient
shall certify that payments for a project were made in accordance
with 2 CFR 200.305); current 44 CFR 206.207(a) (stating that the
``Uniform administrative requirements which are set forth in 2 CFR
parts 200 and 3002 apply to all disaster assistance grants and
subgrants'').
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Current paragraph (b)(2)(i) states that FEMA expects the recipient
to inform subrecipients about the status of their applications,
including notification of FEMA's approvals of Project Worksheets and
FEMA's estimates of when FEMA will make payments. These specific
requirements more appropriately belong in section 206.202, which
addresses application procedures, rather than section 206.200, which
addresses general requirements. Therefore, we propose to remove section
206.200(b)(2)(i) and add this provision to section 206.202 in proposed
paragraphs (b)(4), on recipient responsibilities, and (e)(2), on grant
approval. Notifying subrecipients of FEMA's approvals is an important
requirement and one that warrants repeating in both places in section
206.202.
Section 206.200(b)(2)(ii) states that FEMA expects the recipient to
pay the full amounts due to the subrecipient as soon as practicable
after FEMA approves payment, including the State contribution required
in the FEMA-State Agreement. We propose to remove paragraph (b)(2)(ii)
because this provision is already included in current section
206.205(a) (proposed
[[Page 54970]]
206.206(a)), regarding payment of claims for small projects. We propose
to add an equivalent provision regarding payment for large projects in
proposed section 206.206(b)(3), so that the requirement is still
covered in both contexts.
Finally, current section 206.200(b)(2)(iii) states that FEMA
expects the recipient to ``pay the State contribution consistent with
State laws.'' Consistent with the other proposed changes to paragraph
(b)(2) and for better organization, we propose to remove paragraph
(b)(2)(iii) and add this provision to proposed 206.206(b), which
addresses payment of claims for large projects. We further propose to
add a similar provision for small projects in proposed 206.206(a).
ii. Section 206.201 Definitions Used in This Subpart
FEMA proposes several changes to the definitions in section
206.201. We propose to remove the paragraph designations throughout the
section and reorder the definitions alphabetically.
We propose to revise the definition of ``applicant.'' The existing
definition includes eligible private nonprofit organizations as
identified in Subpart H of this regulation. For clarity, we propose
replacing this language with ``private nonprofit organization or
institution that owns or operates a private nonprofit facility as
defined in Sec. 206.221,'' which is consistent with the language used
in section 206.222(b). Eligibility for FEMA Public Assistance remains
facility-based; this revision would not impact the eligibility of
facilities operated by private nonprofit organizations.
We propose to remove the definition of ``emergency work'' in this
section to avoid confusion. Under current practice, FEMA identifies two
categories of emergency work: debris removal and emergency protective
measures. Due to differing legal criteria between the two, we propose
to refer to ``debris removal'' and ``emergency protective measures''
separately in the sections where the term ``emergency work'' was used:
sections 206.204 (proposed 206.205), 206.208 (proposed 206.209), and
206.225. This revision would improve clarity and would not be a
substantive change to the eligibility of emergency work.
In the definition of ``facility,'' we propose to remove the words
``publicly or privately owned'' because they are unnecessary and do not
affect the meaning of the term. We also propose to replace the word
``works'' with ``structure,'' because the latter term is more commonly
used in FEMA's regulations and guidance. Neither change is substantive
or alters the definition of facility; instead, we propose them to
improve clarity and consistency.
We propose replacing the defined term ``grant'' with ``award,''
consistent with changes proposed throughout this rule to comport with
the language used in 2 CFR part 200. We also propose specifying in the
definition of the term that it means the financial assistance ``that
the recipient receives from FEMA'' to avoid ambiguity.
We propose removing the definition of ``hazard mitigation'' in
section 206.201 because it is duplicative of the definition in section
206.2. The definition provided in section 206.2 applies throughout 44
CFR part 206 and renders the definition in this section redundant.
We propose to simplify the definition of ``permanent work'' by
replacing the current definition with ``work performed pursuant to
section 406 of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5172.'' Recent amendments to section 406,
such as DRRA section 1235(b), have rendered the definition of
``permanent work'' in section 206.201 incomplete or inaccurate. The
current definition in section 206.201 ties restorative work to
``current applicable standards,'' but the Stafford Act now requires
``conformity with the latest published editions of relevant consensus-
based codes, specifications, and standards that incorporate the latest
hazard-resistant designs . . . .'' \18\ Rather than continuing to
update the regulatory definition each time section 406 is amended, we
propose to simply refer generally to work performed pursuant to that
section. This proposed revision would bring the regulatory definition
of the term ``permanent work'' up to date with the current statutory
provisions and avoid unnecessary confusion and administrative burden in
the future. This revision would not change eligibility under section
406 or otherwise impact FEMA's implementation of that section.
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\18\ 42 U.S.C. 5172(e)(1)(A)(ii).
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We propose to remove from the definition of ``project'' the
statement that ``the scope of work and cost estimate for a project are
documented on a Project Worksheet (FEMA Form 90-91).'' The Project
Worksheet is a significant part of the Public Assistance process and
merits its own definition. Therefore, we propose to add a stand-alone
definition describing the items that are included on the form. However,
FEMA is in the process of revising information collection 1660-0017,
Public Assistance Program, and will be replacing the term ``Project
Worksheet'' with ``Project Application.'' Therefore, we propose
defining the term ``Project Application'' instead of ``Project
Worksheet.'' We also propose to remove from the definition of
``project'' the statement that FEMA ``must approve a scope of eligible
work and an itemized cost estimate before funding a project.'' We
propose to capture these requirements in the definitions of ``project
approval'' and ``Project Application.''
Also, in the definition of ``project approval,'' we propose
revising the first sentence to replace ``the process in which the
Regional Administrator, or designee, reviews and signs an approval of
work and costs'' with ``the process in which the Regional
Administrator, or designee, reviews a proposed project and approves the
work and costs.'' FEMA believes the proposed language more clearly and
accurately describes the review and approval process. This would be a
clarifying edit and would not substantively affect the meaning of the
term. Additionally, we propose removing the last sentence of the
definition, which states ``Such approval is also an obligation of funds
to the recipient.'' Certain circumstances, such as a lack of available
funding, could prevent FEMA from immediately obligating funds upon
approval of a Project Worksheet. Removing this language from the
definition would avoid confusion in such situations. We also propose
replacing ``Project Worksheet'' with ``Project Application, consistent
with the pending changes to information collection 1660-0017, Public
Assistance Program.
As mentioned above, we propose adding a new definition of ``Project
Application'' to read as follows: ``Project Application is used to
document the location, scope of work, cost or cost estimate, terms and
conditions, and information required for approval. For permanent work,
the form is also used to document damage description and dimensions.''
This term would be the updated term for ``Project Worksheet,'' which is
not currently defined but is used throughout this subpart. We do not
intend for the proposed definition to substantively change how Project
Worksheets have been (and Project Applications will be) used in the
Public Assistance program. Instead, we simply propose to provide
clarity and ensure consistency in FEMA's regulations.
In 2023, the Biden-Harris Administration issued the National
Climate Resilience Framework noting
[[Page 54971]]
the intensifying impacts of climate change are costing lives,
disrupting livelihoods, and causing billions of dollars in damages.\19\
The Administration intends for the Federal Government to serve as a
partner with local communities by reforming and modernizing Federal
programs in ways that strengthen climate resilience. In 2018, Section
1235(d) of the DRRA amended section 406(e) of the Stafford Act to
require that FEMA issue a final rule defining the terms ``resilient''
and ``resiliency.'' Consistent with that requirement, we propose
defining the term ``resilient'' as ``able to prepare for threats and
hazards, adapt to changing conditions, and withstand and recover
rapidly from adverse conditions and disruptions'' and the term
``resiliency'' as ``the ability to prepare for threats and hazards,
adapt to changing conditions, and withstand and recover rapidly from
adverse conditions and disruptions.'' If adopted, these definitions
would help promote consistent terminology across FEMA's programs and
would satisfy FEMA's obligations under DRRA section 1235(d) and
Stafford Act section 406(e).
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\19\ The White House, National Climate Resilience Framework
(September 2023), <a href="https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf</a>.
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These definitions mirror the definition of ``resilience'' used in
FEMA's National Resilience Guidance,\20\ which is based on the
definition in Presidential Policy Directive (PPD) 21.\21\ These
definitions also mirror the definition of ``resilience'' used in the
National Climate Resilience Framework.\22\ FEMA previously used a
similar definition of ``resilience'' in guidance on DRRA section
1325(b) and on the Building Resilient Infrastructure and Communities
program.\23\ FEMA considered a few other definitions, including two
based on PPD-8 \24\ and a National Institute of Standards and
Technology (NIST) definition,\25\ but proposes the ones given above as
they provide the clearest articulation of resilience principles for the
purpose of the Public Assistance program, and for consistency with the
National Resilience Guidance.
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\20\ See FEMA, National Resilience Guidance: Background and Key
Concepts (March 2023), <a href="https://www.fema.gov/sites/default/files/documents/fema_national-resilience-guidance-project-background_2023.pdf">https://www.fema.gov/sites/default/files/documents/fema_national-resilience-guidance-project-background_2023.pdf</a>. See also FEMA, National Resilience Guidance,
<a href="https://www.fema.gov/emergency-managers/national-preparedness/plan/resilience-guidance">https://www.fema.gov/emergency-managers/national-preparedness/plan/resilience-guidance</a> (last accessed June 12, 2024).
\21\ Presidential Policy Directive 21, Critical Infrastructure
Security and Resilience (Feb. 12, 2013), available at <a href="https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil">https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil</a>.
\22\ Presidential Policy Directive 21, Critical Infrastructure
Security and Resilience (Feb. 12, 2013), available at <a href="https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil">https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil</a>. The White House, National Climate Resilience Framework
(September 2023), available at <a href="https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf</a>.
\23\ See Consensus-Based Codes, Specifications and Standards for
Public Assistance, FEMA Recovery Interim Policy FP-104-009-11 Ver.
2.1, at 2 n.2 (Dec. 20, 2019), available at <a href="https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1235b-public-assistance-codes-standards-interim-policy.pdf">https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1235b-public-assistance-codes-standards-interim-policy.pdf</a>; 87 FR 10805, 10808 (Feb. 25, 2022).
\24\ See Presidential Policy Directive 8, National Preparedness
(Mar. 30, 2011), available at <a href="https://www.dhs.gov/presidential-policy-directive-8-national-preparedness">https://www.dhs.gov/presidential-policy-directive-8-national-preparedness</a> (last accessed June 12,
2024).
\25\ See Community Resilience Planning Guide for Buildings and
Infrastructure Systems, vol. 1, at 9 (May 2016), available at
<a href="https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.1190v1.pdf">https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.1190v1.pdf</a>; NIST, Community Resilience, <a href="https://www.nist.gov/community-resilience">https://www.nist.gov/community-resilience</a> (last accessed June 12, 2024).
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Consistent with the requirement of DRRA section 1235(d), FEMA
consulted with the heads of relevant Federal departments and agencies
in developing these proposed definitions.\26\ As part of the National
Resilience Guidance, FEMA consulted with a broad range of stakeholders,
including the Mitigation Framework Leadership Group (MitFLG) and the
Recovery Support Function Leadership Group (RSFLG). These groups
comprise a wide range of Federal departments and agencies with equities
in national hazard mitigation and Federal recovery efforts,
respectively.\27\ Consistent with discussion and feedback received
during the National Resilience Guidance engagement process, and to
promote a common understanding of resilience in alignment with that
effort, FEMA proposes to use that definition of ``resilience'' as the
basis for the proposed definitions in this rule.
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\26\ 42 U.S.C. 5172(e)(5)(A).
\27\ For more information, see FEMA's website at <a href="https://www.fema.gov/emergency-managers/national-preparedness/frameworks/mitigation/mitflg">https://www.fema.gov/emergency-managers/national-preparedness/frameworks/mitigation/mitflg</a> and <a href="https://recovery.fema.gov/about">https://recovery.fema.gov/about</a> (last accessed
June 12, 2024).
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Lastly, we propose adding a new definition for ``site.'' This term
is used in several places in the Public Assistance program regulations,
including in the definition of ``project,'' but does not currently have
its own definition in section 206.201. Consistent with current FEMA
guidance,\28\ we propose defining ``site'' as ``an individual building,
structure, location, or system section.'' This definition would not
change current practice but would provide clarity for FEMA applicants
and improve consistency in FEMA's regulations.
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\28\ PAPPG at 60.
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All other revisions proposed in this section are non-substantive
edits to improve clarity and do not affect the meaning of any defined
term. This includes the removal of the word ``eligible'' from the
definition of ``subaward.'' The current reference to ``eligible
subrecipients'' is redundant, since, by definition, subrecipients are
applicants who receive a subaward. We propose removing ``eligible'' to
avoid confusion and improve consistency in the regulations. We also
propose a minor non-substantive edit to the definition of
``subrecipient,'' rewording the sentence to use active, instead of
passive voice.
iii. Section 206.202 Application Procedures
In paragraph (a), we propose to remove the statement that ``under
this section the State is the recipient'' because an Indian Tribal
government may also be a recipient. We propose to remove this provision
rather than correct it because it is unnecessary. The term
``recipient,'' as defined in section 206.201, includes Indian Tribal
governments. Also, in paragraph (a), we propose to remove the reference
to 2 CFR part 3002, since that part now only references 2 CFR part 200,
and instead simply refer directly to the applicable requirements of
part 200. That part applies generally to Public Assistance awards
except where inconsistent with the Stafford Act or FEMA's regulations.
The other revisions proposed in this section are all non-substantive
clarifying and stylistic edits to improve readability.
We propose to add a new paragraph (b)(4) stating that the recipient
is responsible for informing the subrecipient of the status of its
application for Public Assistance funding, including FEMA's approval of
the Project Application and the process for disbursement of funds. This
requirement currently appears in section 206.200(b)(2)(ii). As
explained above for section 206.200, this provision is more
appropriately placed in this section, which lists the recipient's
responsibilities, and we propose non-substantive changes to the wording
of the provision to better capture those responsibilities and the
pending change to information collection 1660-0017, Public Assistance
Program. We also propose to re-order existing paragraphs (b)(1), (3),
and (4) and make other non-substantive clarifying edits to more
accurately describe the recipient's grant management activities.
We propose to make a clarifying change to paragraph (c), which
currently states that the recipient must submit a
[[Page 54972]]
request for assistance within 30 days after designation of the area
where the damage occurred. Consistent with current FEMA guidance,\29\
we propose to reword the paragraph to clarify that the recipient must
submit the request no later than 30 calendar days after the area is
designated in an emergency or major disaster declaration. We also
propose to remove the references to outdated FEMA Form numbers in
paragraph (c) and throughout this section. Neither of these proposed
changes is substantive.
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\29\ PAPPG at 37 (``Unless otherwise noted, FEMA calculates all
deadlines based on calendar days'').
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We propose to reorganize and revise paragraph (d). First, we
propose revising the paragraph heading from ``Project Worksheets'' to
``Project Applications,'' consistent with the pending revision to
FEMA's Public Assistance forms. In paragraph (d)(1), we propose
clarifying that an applicant's authorized local representative is
responsible for ensuring the applicant has submitted all costs or cost
estimates. This is not a substantive change but would simply make
explicit that submissions may include cost estimates as well as actual
costs. For clarity, we also propose removing the words ``for funding''
from the end of paragraph (d)(1) because they are unnecessary.
We propose moving the first sentence of existing paragraph
(d)(1)(i) to the end of paragraph (d)(1) and clarifying that the
applicant may be assisted by the recipient or by FEMA in preparing a
Project Application for each project. We propose removing the existing
second sentence of (d)(1)(i), since the requirement to identify
eligible work would be included in proposed new paragraphs (d)(2) and
(3). We propose moving the provision in existing paragraph (d)(1)(ii)
into a new paragraph (d)(2), with certain revisions. Existing paragraph
(d)(2) would be redesignated as paragraph (d)(4). New paragraph (d)(2)
would provide that within 90 calendar days following FEMA's approval of
the Request for Public Assistance, the applicant must identify, and
report all impacts the applicant proposes be included on the Project
Applications. This would be a change from the existing deadline, which
is 60 days following the first substantive meeting with FEMA. Basing
the deadline on FEMA's approval of the Request for Public Assistance
avoids potential confusion about what constitutes the first substantive
meeting. We propose increasing the time period from 60 days to 90 days,
to ensure applicants do not have less time to identify and report the
impacts.\30\
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\30\ Based on an analysis of data from FEMA's Grants Manager
system, it typically takes applicants approximately 78 days to
complete this process. Accordingly, we do not expect this proposed
deadline would impose a new burden on applicants.
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We propose to add a new paragraph (d)(3), providing that for work
not completed prior to or during the project development period, the
applicant must conduct any site inspections necessary to validate
incident impacts and obtain all information necessary to complete a
detailed description of the impacts. This requirement is currently
imposed in existing paragraph (d)(1)(ii), but the proposed change would
improve clarity by better describing what is required. New paragraph
(d)(3) would also require that within 30 calendar days following a site
inspection or 120 calendar days following FEMA's approval of the
Request for Public Assistance, whichever is later, the applicant must
also provide the recipient and FEMA all other documentation necessary
to determine eligible work and costs. These deadlines would ensure that
applicants timely submit all required information and support the
efficient administration of the program. Applicants would be able to
request an extension to the deadlines under section 206.202(f)(2), but
if they fail to submit the documentation within the required time, the
project would be ineligible, and the applicant would need to submit an
appeal. When obligation and closeout of projects extends beyond the
completion of the work, it delays the recovery process and results in
undue burdens and increased costs for FEMA, recipients, and disaster-
impacted communities. FEMA believes codifying a specific timeframe for
submitting information is necessary to ensure timely completion of
Project Worksheets, obligation of funds, and closure of projects.
Existing paragraph (d)(2) (proposed (d)(4)) provides information on
the minimum threshold for small projects. When the estimated cost of a
project is below this threshold, FEMA will not approve funding for it.
Paragraph (d)(2) currently provides that the minimum threshold amount
``shall be adjusted annually to reflect changes in the Consumer Price
Index for All Urban Consumers'' (CPI-U). We propose updating the listed
minimum threshold amount from $3,000 to $3,900 which is the current
published amount.\31\ We also propose to revise this paragraph to
provide that the minimum threshold ``will be reviewed annually and may
be adjusted . . . .'' This is not a substantive revision, but simply
clarifies that an adjustment to the minimum threshold is not strictly
required every year. Sometimes, the change in CPI-U in a single year is
so small as to only result in a de minimis change in the minimum
threshold. FEMA interprets section 422 of the Stafford Act not to
require the agency expend the time and resources necessary to issue an
adjustment when the impact of that adjustment would be de minimis.
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\31\ See 88 FR 72512 (Oct. 20, 2023).
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We further propose to revise current paragraph (d)(2) to change the
way the minimum threshold is applied. Under the existing regulations,
FEMA will not approve project applications when the estimated cost of
work on the project is under the minimum threshold. FEMA requires
applicants to restrict each project to a conceptual and logical
grouping of eligible work at one or more sites.\32\ Applicants have
some discretion in how they group sites across projects, however, and
some currently try to group together sites that are, by themselves, de
minimis, in order to reach the minimum threshold. When projects
consisting solely of multiple de minimis sites that should not have met
the minimum threshold are processed, it takes up limited administrative
resources and causes delays throughout the program. To remedy this,
FEMA proposes to replace ``when the estimated cost of work on a
project'' with ``when the estimated cost of work at a site.'' This
would ensure the minimum threshold is applied not to the project as a
whole, but to each site in the project individually, properly excluding
project applications under the threshold.
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\32\ See 44 CFR 206.201; PAPPG at 60-63.
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We propose revising the heading of paragraph (e) from ``grant
approval'' to ``award notification'' to better describe its provisions.
We propose to make a number of clarifying revisions to paragraph (e)(1)
to improve clarity and readability. Among them, we propose to revise
the second sentence to replace the phrase ``will obligate funds'' with
``may obligate funds.'' This is not a substantive change, but merely a
clarifying edit to more accurately reflect that, while in most cases
the Regional Administrator will obligate funds after receiving the
appropriate forms and approved Project Worksheets, there are
occasionally situations that require a delay. For example, funding may
not be available to obligate at the time the Project Worksheet is
approved, FEMA may need to request additional information from the
applicant, or an environmental review may be ongoing
[[Page 54973]]
and need to conclude before funds can be obligated. In such situations,
obligation is not automatic upon approval, but FEMA will obligate funds
as soon as the relevant issue is resolved. We further propose to
replace the term ``Project Worksheet'' with ``Project Application,''
consistent with the pending revision to FEMA's Public Assistance forms.
We propose to remove existing paragraph (e)(2), which provides for
a 45-day deadline for FEMA to obligate Federal funds, from the time the
applicant submits the Project Worksheets. In the same way that there
may be a delay as discussed above regarding paragraph (e)(1),
circumstances may arise that require a delay before FEMA may obligate
funds; to ensure we have the necessary flexibilities to maintain the
smooth administration of the Public Assistance program, we propose to
remove this deadline. Under this proposed change, FEMA would still
maintain regular contact with applicants regarding the status of their
projects and could explain any delays in obligation. We do not believe
that removing the deadline will result in any substantial increase in
delays or otherwise cause novel problems for applicants, but we request
comment on the potential impact of this proposed change.
We propose to add a new paragraph (e)(2) providing that the
recipient will notify the subrecipient of FEMA's approval of a
subaward. As discussed above, this provision is currently included in
section 206.200(b)(2)(i), and we propose moving it to this section to
improve organization and clarity in FEMA's regulations.
In paragraph (f)(1)(i), we propose to clarify that a host State or
Tribe that provides evacuation and sheltering support is eligible for a
grant under sections 403 or 502 of the Stafford Act when an impacted
State or Tribe requests direct Federal assistance for sheltering.
Adding this statutory reference to ``State/Tribe'' would provide
clarity to the reader and is a not a substantive change.
Overall, the proposed amendments to Sec. 206.201 would streamline
and improve the Project Worksheet process, which is a reform supported
by the NAC in its recommendation.\33\
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\33\ See NAC Memo, Recommendations on the Stafford Act and
Related Federal Regulations: Public Assistance and Individual
Assistance Issues, at 2 (Aug. 19, 2008), available at <a href="https://www.fema.gov/pdf/about/nac/hp/stafford_act_rec_081908.pdf">https://www.fema.gov/pdf/about/nac/hp/stafford_act_rec_081908.pdf</a>.
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iv. Section 206.203 Federal Grant Assistance
We propose to revise the heading of this section to read ``Federal
funding for large and small projects,'' which adequately describes the
contents of the section, as revised, and renders paragraph (a)
unnecessary, and to remove paragraph (a). We proposed to redesignate
paragraphs (b), (c)(1), (c)(2), and (c)(3) as paragraphs (a), (b), (c),
and (d), respectively. We propose to move the provisions in existing
paragraph (d), which address improved projects and alternate projects,
to a new section 206.204, and accordingly redesignate existing sections
206.204-209 as sections 206.205-210, respectively.
In new paragraph (b), we propose to replace ``State disaster
assistance grants'' with ``FEMA Public Assistance awards.'' In new
paragraph (c), we propose stating that the minimum threshold amount
will be ``reviewed annually and may be adjusted'' to reflect changes in
CPI-U. This would more accurately reflect the fact that if the change
in CPI-U for a given year is so small as to result in only a de minimis
change in the minimum threshold, FEMA is not required to spend limited
administrative resources issuing an adjustment that year. These
revisions are merely clarifications and would not be a change in
current agency practice.
In new paragraph (d), we propose minor edits to reflect the
proposed reorganization of this section, replacing the reference to
paragraph (c) with one to paragraphs (b) and (c), and to replace the
term ``Project Worksheet'' with ``Project Application,'' consistent
with FEMA's pending update of its Public Assistance forms.
v. Proposed Section 206.204 Funding Options--Improved Projects and
Alternate Projects
Existing section 206.203(d) addresses two funding options for
projects that are outside the originally approved scope of work: (1)
improved projects, which restore the predisaster function of a damaged
facility but include improvements beyond the predisaster design, and
(2) alternate projects, which are done when the public welfare would
not be best served by restoring a damaged public facility or its
function. FEMA proposes to create a new section 206.204 for these
provisions, and to make revisions to the current regulatory language in
existing section 206.203(d).
FEMA proposes to address improved projects, currently in section
206.203(d)(1), in new paragraph 206.204(a). We propose to add further
information regarding project eligibility, deadlines, and funding for
improved projects in new paragraphs (a)(1) through (4). We propose to
replace the words ``Federal funding'' with the words ``Public
Assistance funding'' to more accurately reflect the source of the
funds. Regarding project eligibility, we propose to add a sentence
indicating that FEMA may only grant improved projects for permanent
work.\34\ This is not a new requirement, but the revision would help
ensure clarity regarding eligibility for improved projects. Emergency
work is meant to eliminate immediate threats to public safety and
improved property, whereas an improved project is a project that
restores the predisaster function of a facility and incorporates
improvements or changes to the predisaster design. For example, an
improved project would be a subrecipient contributing its own funding
to add a new library when rebuilding a school.
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\34\ See definition of Permanent Work, 42 CFR 206.201, and
discussion supra on proposed revision. See also PAPPG at 163.
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The regulations at existing section 206.203(d)(1) require the
subrecipient to obtain the recipient's approval for improved projects.
We propose to clarify in new section 206.204(a)(2) that the
subrecipient must obtain the recipient's approval in writing prior to
the start of construction. Further, we propose to require that the
recipient notify FEMA in writing of the improved project approval,
which is consistent with current FEMA guidance on improved
projects.\35\ Having recipients notify FEMA of project approval helps
ensure accountability and transparency by increasing communication
between FEMA and recipients and providing consistent documentation.
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\35\ See PAPPG at 167.
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FEMA also proposes to clarify in new paragraph 206.204(a)(3) that
the project completion deadlines established under existing section
206.204(c) (proposed 206.205(c)) apply to the completion of improved
projects and alternate projects. This is not a new requirement. Current
section 206.204(c) establishes deadlines that apply to all projects
approved under State disaster assistance grants. Including this
requirement in the regulatory provisions that specifically address
improved projects and alternate projects is intended to aid readers and
FEMA in expediting project and program closure.
Regarding funding, FEMA proposes to clarify in new paragraph
206.204(a)(4) that Public Assistance funding for improved projects is
either the Federal share of the actual costs of completing the improved
project, or the Federal
[[Page 54974]]
share of the approved estimate of eligible costs, whichever is less.
If, for example, a tornado destroys a school gym and the cost to
replace that gym is approved for $2 million, the school could apply
that $2 million toward the construction of a larger gymnasium, rather
than replace a gymnasium of the same size. If it did, and the larger
gymnasium cost $5 million to build, FEMA would still calculate the
Federal share from the $2 million approved scope of work. If, however,
the school rebuilt a smaller gym, and the actual cost was only $1
million, FEMA would calculate the Federal share from the school's
actual costs of $1 million. These proposed changes are consistent with
current FEMA guidance and would not substantively affect the amount of
Federal share or the eligibility of costs for improved projects.\36\
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\36\ See PAPPG at 164, 166-67.
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FEMA proposes to move the provisions in existing section
206.203(d)(2), relating to alternate projects, to new section
206.204(b), and to clarify project eligibility, funding, and other
requirements. In proposed paragraph (b)(4)(i), we propose to use the
phrase ``Public Assistance funding,'' instead of the phrase ``Federal
funding'' used in existing 206.203(d)(2)(ii), to more accurately
reflect the source of the funds. Regarding project eligibility, the
current regulation states that the recipient may propose alternate
projects in any case where a subrecipient determines that restoring a
damaged public facility or the function of that facility would not best
serve the public welfare. We propose to add PNP facilities to this
provision. This is not a substantive change. PNP facilities are
currently eligible for alternate project funding under existing section
206.203(d)(2)(iii), but they were inadvertently left out of the
introductory language of existing paragraph (d)(2). FEMA also proposes
to remove the language in existing section 206.203(d)(2)(i) stating
that the ``alternate project option may be taken only on permanent
restorative work,'' and to instead state in proposed paragraph (b)(1)
that ``an alternate project may only be approved for permanent work.''
Because the language ``permanent restorative work'' may be
misunderstood to limit the use of alternate projects funds to
restoration work, FEMA is proposing this revision to clarify existing
eligibility requirements and avoid confusion regarding the use of
alternate project funds.
The current regulation, in section 206.203(d)(2)(v), requires the
recipient to submit a proposal for any alternate project to the
Regional Administrator for approval before the start of construction.
In addition to this requirement, we propose to further specify in new
section 206.204(b)(2) that an applicant must receive approval from the
Regional Administrator prior to the start of construction on an
alternate project. This change would incorporate current policy \37\
into the regulations and is intended to save applicants from beginning
a project and committing their resources before learning that the
project is ineligible for Public Assistance.
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\37\ See PAPPG at 167.
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The current regulation also states that the recipient shall include
a description of the proposed alternate project(s), a schedule of work,
and the projected cost of the project(s) in the alternate project
proposal. FEMA proposes to add that the schedule of work must include
the starting date and targeted completion date because alternate
projects tend to take a much longer time to complete than original or
improved projects. Knowing the starting date and targeted completion
date would enable FEMA to keep track of the project more effectively
and aid FEMA in planning for closeout.
Additionally, existing section 206.203(d)(2)(v) further states that
the recipient shall provide the necessary assurances to document
compliance with special requirements, including, but not limited to,
floodplain management, necessary environmental assessments, hazard
mitigation, protection of wetlands, and insurance. FEMA proposes to
simplify the regulatory language but slightly expand the scope of the
provision by revising this list to read ``any environmental or historic
preservation issues, and any other legal considerations.'' We propose
including this new language to require the recipient to identify other
legal considerations not currently listed, such as liens on property,
ownership issues, and zoning. See proposed 44 CFR 206.204(b)(2). Legal
issues are more likely to arise in alternate projects than in original
or improved projects, so identifying these issues early in the project
formulation phase can assist FEMA in determining whether it should
approve the project, or whether these issues will be prohibitive,
thereby saving applicants from beginning a project only to be halted
before completion.
In proposed section 206.204(b)(4), FEMA proposes to provide
additional clarity regarding funding for alternate projects. Under the
existing regulations, at 206.203(d)(2), Public Assistance funding for
alternate projects is limited to a certain percentage of the Federal
share of FEMA's estimate of the cost of repairing, restoring,
reconstructing, or replacing the original facility, and of management
expenses. DRRA section 1207(a) amended section 406(c) of the Stafford
Act to remove these percentage limitations, so we propose to update the
regulations to reflect the current statutory provision. We also propose
to clarify that Public Assistance funding for alternate projects is
limited to the Federal share of the actual costs of completing the
alternate project or the Federal share of the approved estimate of the
total eligible cost, whichever is less. This last change is not a
substantive change, but simply intended to improve clarity and avoid
confusion. Both changes are consistent with current FEMA guidance on
alternate projects.\38\
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\38\ See PAPPG at 164, 167-68.
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Existing section 206.203(d)(2)(iv) states that funds contributed
for alternate projects may be used to repair or expand other selected
public facilities, to construct new facilities, or to fund hazard
mitigation measures. We propose to add, in proposed 206.204(b)(4)(ii),
both the purchase of equipment and, when required to accomplish the
project, the demolition of the original structure as eligible uses of
alternate project funds. This change is consistent with current FEMA
guidance on this issue,\39\ and would improve clarity and consistency
in the regulations.
---------------------------------------------------------------------------
\39\ See PAPPG at 167.
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Finally, we propose to add provisions to new paragraphs
(b)(4)(ii)(A) and (B) regarding limitations on the use of funds for
alternate projects. Funds awarded for alternate projects may not be
used to pay the non-federal share of any project and may not be applied
to operating expenses. These alternative project funds may not be
applied in a regulatory floodway or for any uninsured public facility
or private nonprofit facility located in a special flood hazard area.
We also propose adding in new paragraphs (b)(4)(ii)(A) and (B) examples
of work that alternative project funds may be used for. These examples
are not an exhaustive list of permissible uses.
These limitations conform to the language of section 406(c)(1)(C)
and (c)(2)(C) of the Stafford Act and current FEMA guidance,\40\ and
are proposed for clarity and to emphasize for readers the importance of
these restrictions.
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\40\ See PAPPG at 167-68.
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[[Page 54975]]
vi. Section 206.204 Project Performance (Proposed 206.205)
FEMA proposes to redesignate section 206.204 as section 206.205 to
reflect the new section 206.204 discussed above.
In the chart in paragraph (c)(1), we propose replacing ``debris
clearance'' with ``debris removal'' and ``emergency work'' with
``emergency protective measures,'' to improve clarity, consistent with
the proposed removal of the definition of ``emergency work'' in section
206.201, discussed above. We further propose consolidating these two
items onto a single line in the chart. Both have the same 6-month
completion deadline, so combining them simplifies the chart and
improves readability. We propose a conforming edit in paragraph
(c)(2)(ii) to refer to ``debris removal'' and ``emergency protective
measures.''
Paragraph (c)(2) provides exceptions to the project completion
deadlines established in paragraph (c)(1). Specifically, paragraph
(c)(2)(i) states that the recipient may impose lesser deadlines for the
completion of work if considered appropriate. Although deadlines
shorter than those provided in paragraph (c)(1) are not often imposed,
they may be appropriate in some circumstances. Under current practice,
FEMA and the recipient will agree that a lesser timeline is appropriate
in a particular case before any deadline(s) are reduced, and the
recipient will inform the subrecipient of the reduced deadline, and
then monitor and enforce the subrecipient's compliance. FEMA proposes
revising the existing language in paragraph (c)(2)(i), ``The recipient
may impose . . .'', to say ``FEMA and the recipient may impose . . .''
FEMA specifically requests comment on this proposed change and whether
mandating concurrence on reduced deadlines would improve delivery of
the Public Assistance program. Additionally, consistent with current
guidance,\41\ FEMA proposes clarifying in paragraph (c)(2)(ii) that all
extensions of deadlines for temporary relocation require prior FEMA
approval.
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\41\ See PAPPG at 133.
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Paragraph (d) requires the recipient to submit requests for time
extensions beyond the recipient's authority to the Regional
Administrator. FEMA proposes to clarify that the recipient must submit
the request prior to the expiration of the last approved time
extension, and that the recipient must provide the justification for
the delay and projected completion date in writing. These revisions are
consistent with current FEMA guidance and are not substantive policy
changes.\42\ FEMA also proposes to require that the recipient base the
justification for an extension under this paragraph on extenuating
circumstances beyond the recipient's and subrecipient's control. This
requirement is similar to the provision in paragraph (c)(2)(ii)
requiring that an extension be based on extenuating circumstances or
unusual project requirements beyond the control of the subrecipient and
would better align these closely related provisions.
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\42\ See PAPPG at 196-97.
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Also, in paragraph (d)(2), FEMA proposes to clarify that while FEMA
will not provide Federal funding for a project if the work is not
completed, FEMA may provide Federal funding for the completed portion
of that project if the completed work is distinct from uncompleted
work.
Existing paragraph (e)(2) describes how a subrecipient requests
additional funding for a cost overrun and FEMA's procedures for cost
overruns for small projects. We propose to move the provisions relating
to small projects to a new paragraph (e)(3) to more clearly
differentiate between the treatment of large and small projects.
We propose to rewrite portions of paragraph (e)(2) to improve
readability and to clarify that subrecipients may, but are not required
to, submit requests for additional funding. These are non-substantive
edits and only meant to improve clarity. We also propose to add a new
sentence stating that subrecipients should make the request for
additional funding as soon as practicable to give FEMA and the
recipient an opportunity to inspect the uncompleted project to validate
that the additional costs are eligible. The addition emphasizes the
importance of timeliness in alerting the recipient and FEMA of
potentially significant changes in eligible funding to allow time for
the recipient or FEMA to make interim inspections of the projects, if
necessary. Submitting requests as soon as practicable also protects the
subrecipient by allowing for approval of reimbursement for the cost
overruns before project closeout. Significant overruns that are not
submitted until closeout of a project may be more difficult to justify,
and the subrecipient may be severely impacted if the overruns are not
approved.
The remainder of paragraph (e)(2) addresses cost overruns of small
projects. We propose to include this language in new paragraph (e)(3)
with one revision. We propose to specify that the subrecipient may
submit a request for additional funding within 90 calendar days
following the completion of the last small project, instead of an
appeal in accordance with existing section 206.206 within 60 days.
Consistent with section 423 of the Stafford Act, 42 U.S.C. 5189a,
appeals under existing section 206.206 are for decisions regarding
eligibility, whereas cost overruns for small projects are financial
reconciliation matters that should be handled following procedures
related to payment of claims. This proposed revision would provide a
deadline for handling cost overruns for small projects under these
financial accounting procedures, separate from the formal appeal
process under existing section 206.206. Subrecipients would still be
able to submit an appeal if FEMA denies the request for additional
funding, but proposed paragraph (e)(3) would not specifically reference
appeals.
FEMA proposes to revise paragraph (f) to remove the statement that
progress reports must describe the status of those projects on which a
final payment of the Federal share has not been made to the recipient
and outline any problems or circumstances expected to result in
noncompliance with the approved grant conditions. Since there may be
projects that remain open after payment of the final Federal share has
been made to the recipient, we propose rewording this requirement for
clarity. For example, if FEMA has provided final payment to the
recipient, but the recipient has not yet submitted payment to the
subrecipient, the recipient would still be required to provide a
progress report. FEMA proposes to revise paragraph (f) to instead state
that progress reports must describe the status of open large projects.
These amendments would align with current FEMA guidance on progress
reports.\43\
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\43\ See PAPPG at 193 (``FEMA requires the Recipient to report
on the status of all open Large Projects on a quarterly basis.'').
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vii. Section 206.205 Payment of Claims (Proposed 206.206)
Section 206.205(a) (proposed 206.206(a)) addresses small projects
and currently provides that ``Final payment of the Federal share of
these projects will be made to the recipient upon approval of the
Project Worksheet.'' We propose to replace ``Project Worksheet'' with
``Project Application,'' consistent with the pending revision to FEMA's
Public Assistance forms, and to remove the word ``final'' out of
recognition that FEMA may occasionally need to adjust funding after
approval of the Project Application--for example, to account for a net
small project overrun or actual insurance proceeds. Similarly, we
propose specifying that recipients must make payment of the Federal
share of
[[Page 54976]]
small projects to the subrecipient as soon as practicable after Federal
approval of funding ``consistent with State or Tribal laws.'' This is
not a new requirement, and we only propose including this statement in
the regulations to improve clarity. We also propose several non-
substantive style edits to paragraph (a) to improve consistency and
readability.
Paragraph (a) addresses small projects and currently requires the
recipient to certify that all small projects were completed in
accordance with FEMA approvals and that the contribution to the non-
Federal share has been made to each subrecipient, if applicable. We
propose revising paragraph (a) to add that the recipient must make this
certification within 90 calendar days of the last approved small
project completion date of record. This 90-day deadline is consistent
with current Public Assistance program guidance on small projects,\44\
and would provide recipients with a clear requirement for maintaining
an efficient and timely administrative process. Currently, closeout
sometimes extends significantly beyond the completion of the work,
causing long administrative delays. FEMA believes imposing this
deadline would allow recipients sufficient time to make the required
certification, while also helping prevent undue delays and reducing
burden on FEMA, but we request comment on the potential impact of this
proposed change.
---------------------------------------------------------------------------
\44\ See PAPPG at 199-200.
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Paragraph (b) addresses large projects. Paragraph (b)(1) currently
requires the recipient to submit an accounting to FEMA of each large
project as soon as practicable after the subrecipient has completed the
approved work and requested payment. We propose revising paragraph
(b)(1) to require more specifically that the subrecipient submit a cost
documentation for each large project to the recipient for final payment
within 90 days of completion of the approved scope of work for that
Project Application, and that the recipient submit the accounting for
each large project to the Regional Administrator as soon as
practicable, but not to exceed 90 calendar days after the subrecipient
has submitted documentation for final payment. We also propose adding a
new paragraph (b)(4) providing that the Regional Administrator could
approve extensions when requested in writing by the recipient.
Consistent with other requests for extensions, the recipient would be
required to make these requests in advance of the initial deadline. As
with the deadline proposed in paragraph (a), FEMA believes these time
constraints would reasonably balance the practical need to allow
recipients and subrecipients sufficient time to submit the required
documentation with FEMA's interest in the efficient administration of
the Public Assistance program. These deadlines would avoid lengthy
delays by reducing the time it takes to close out projects. They would
also require the recipient to make an accounting before documentation
is irretrievable, which would improve accountability and transparency
in program administration. The proposed 90-day timeframe is consistent
with current Public Assistance program guidance.\45\ We request comment
on the potential impact of this proposed change.
---------------------------------------------------------------------------
\45\ See PAPPG at 200.
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The last sentence of paragraph (b)(2) currently states that if the
Regional Administrator determines that eligible costs exceed the
initial approval, he/she will obligate additional funds as necessary.
We propose to revise this sentence to state that if the Regional
Administrator determines that eligible costs vary from the approved
estimate, then he/she will adjust the funding (increase or decrease) to
reflect the eligible actual costs, as necessary. This revision
clarifies that the Regional Administrator does not just determine
whether costs exceed the initial approval, which would require the
obligation of additional funds. Rather, the Regional Administrator
looks for any discrepancies between the approved and actual costs and
will adjust funding as necessary, based on whether costs are more or
less than the initial approval.
As explained above in reference to section 206.200, we propose to
move the requirement in 206.200(b)(2)(ii), relating to the prompt
payment of the Federal share to the subrecipient, into proposed
206.206. Specifically, we propose adding a new paragraph (b)(3)
requiring that the recipient make payment of the Federal share to the
subrecipient as soon as practicable after the Federal obligation of
funding, consistent with State or Tribal laws. This is a non-
substantive change that would simply reorganize and clarify an existing
requirement and is consistent with the changes proposed in 206.205(a)
(proposed 206.206(a)) discussed above.
viii. Section 206.206 Appeals (Proposed 206.207)
FEMA proposes no substantive changes to this section. The proposed
rule would redesignate the section as 206.207, to account for proposed
new section 206.204, and would revise the cross references to the
definitions in section 206.201 to reflect the proposed removal of the
paragraph designations there.
ix. Section 206.207 Administrative and Audit Requirements (Proposed
206.208)
In section 206.207(a) (proposed 206.208(a)), we propose to remove
the reference to 2 CFR part 3002, since that part now only references 2
CFR part 200, and instead simply refer directly to the applicable
requirements of part 200. That part applies generally to Public
Assistance awards except where inconsistent with the Stafford Act or
FEMA's regulations. We propose similar revisions in paragraphs
(b)(1)(iii) (G)-(H) and (c)(1)-(2) to remove references to part 3002
and provide more specific citations to the audit requirements of part
200.
Section 324 of the Stafford Act authorizes FEMA to provide funding
for management costs incurred in the administration of the Hazard
Mitigation Grant Program and the Public Assistance program. Section 324
was implemented in FEMA's regulations at 44 CFR part 207. Existing
section 206.207(b)(1)(iii)(K) references these provisions, requiring
State administrative plans to include procedures for determining the
reasonable percentage or amount of pass-through funds for management
costs provided under part 207. Section 1215 of DRRA amended section 324
of the Stafford Act to require FEMA provide funding for management
costs at specific percentage rates for recipients and subrecipients.
FEMA has implemented the DRRA section 1215 amendments via policy,\46\
but new regulations have yet to be issued. Since recipients are no
longer required to determine reasonable pass-through amounts, we
propose removing the existing provision in paragraph (b)(1)(iii)(K) as
it is no longer relevant to administrative plans.
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\46\ See Hazard Mitigation Grant Program Management Costs
(Interim), FP 104-11-1 (Nov. 14, 2018), available at <a href="https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1215-hazard-mitigation-grant-program-management-costs-interim-policy.pdf">https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1215-hazard-mitigation-grant-program-management-costs-interim-policy.pdf</a>; Public
Assistance Management Costs (Interim), FP 104-11-2 (Nov. 14, 2018),
available at <a href="https://www.fema.gov/sites/default/files/2020-07/pa_management_costs_interim_policy.pdf">https://www.fema.gov/sites/default/files/2020-07/pa_management_costs_interim_policy.pdf</a>.
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We propose to revise paragraph (b)(1)(iii)(K) to require State/
Tribal administrative plans to include procedures for ensuring timely
closeout of subawards, subrecipients, and awards. Existing section
206.207 does not explicitly require administrative plans to include
procedures for timely
[[Page 54977]]
closeout, but recipients are subject to the closeout requirements
outlined in 2 CFR 200.344 and should already have such procedures in
place. Timely closeout is consistently an issue when administering the
Public Assistance program, and this proposed revision is intended to
assist FEMA in expediting project and program closure.
Paragraph (b)(3) addresses submission and amendment of
administrative plans. We propose to delete the first sentence of this
paragraph, which refers to the 1989 deadline for submission of the
first plan. Every State has submitted a first plan, so this language is
now obsolete. We also propose revising the rest of existing paragraph
(b)(3) to improve clarity, including to clarify that an administrative
plan is required regardless of whether there is an emergency
declaration or a major disaster declaration. This is a non-substantive
change.
We propose one other change to paragraph (b)(3), relating to
recipient staffing plans. Paragraph (b)(1)(ii) already requires
recipients to prepare a staffing plan for administering the Public
Assistance program as part of the State/Tribal administrative plan. We
now propose to add a requirement that when a recipient prepares
amendments to its State/Tribal administrative plan after a disaster,
the amendments include a disaster-specific staffing plan. A staffing
plan identifies all Public Assistance staffing functions, sources of
staff to fill these functions, and the management and oversight
responsibilities of each position. The staffing plan should identify
the number of positions needed by each function for various size
disasters and include procedures for determining staffing and budgeting
requirements necessary for program management. Disaster-specific
staffing plans should address changes in staffing requirements during a
particular disaster, for example, when a joint field office is closed,
and fewer staff are needed to administer the program. Each recipient
would, therefore, have an overarching plan in place before disasters
hit and would be able to refine any such plan to address the specific
needs of a disaster once it occurs and throughout the response and
recovery effort. Including a revised staffing plan when preparing
amendments to the State/Tribal administrative plan would provide the
opportunity to discuss and resolve any disagreements. This is
particularly helpful if mutual aid for program management, through the
Emergency Management Assistance Compact, is a possibility. FEMA's
administrative plan template already includes a comprehensive staffing
plan, and that information is expected to be amended for each Federally
declared emergency or major disaster declaration. These proposed
changes are intended to improve administrative plans, which was a goal
supported by the NAC in its recommendation.\47\
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\47\ See NAC Memo, Recommendations on the Stafford Act and
Related Federal Regulations: Public Assistance and Individual
Assistance Issues, at 2 (Aug. 19, 2008), available at <a href="https://www.fema.gov/pdf/about/nac/hp/stafford_act_rec_081908.pdf">https://www.fema.gov/pdf/about/nac/hp/stafford_act_rec_081908.pdf</a>.
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x. Section 206.208 Direct Federal Assistance (Proposed 206.209)
Section 206.208 (proposed 206.209) lays out FEMA's regulations
relating to direct Federal assistance (DFA), which may be requested
when a State or Tribal government lacks the capability to perform or to
contract for eligible emergency protective measures or debris removal.
We propose to revise the first sentence in paragraph (a) of this
section to remove the reference to local governments. Requests for DFA
are made at the State or Tribal government level, so we propose this
change to avoid confusion. We also propose to replace ``emergency work
and/or debris removal'' with ``emergency protective measures or debris
removal.'' FEMA splits emergency work into two categories: debris
removal and emergency protective measures. Current paragraph (a) is
potentially confusing, as it refers to the both the broader term
``emergency work'' and the more specific term ``debris removal.'' We
propose this non-substantive revision to more accurately reflect the
way FEMA categorizes emergency work.
Additionally, we propose expanding the statutory references in
paragraph (a) to include Stafford Act sections 402, 418, 419, 502(a)(4)
and (6), and 503. Section 402 covers general Federal assistance that
FEMA may provide in a major disaster. Paragraph (a) currently
references 402(1) and (4), but the proposed revision would expand the
reference to section 402 as a whole. Sections 418 and 419 authorize the
President to establish temporary communications systems and temporary
public transportation. DFA is the only way to provide funds under
sections 418 and 419 of the Stafford Act, so adding these two
provisions clarifies the potential Federal role. Section 502 authorizes
the President to direct any Federal agency to provide emergency
assistance. Current paragraph (a) references 502(a)(1), (5), and (7),
but the proposed revision would expand that to include 502(a)(4) and
(6), which concern emergency assistance through Federal agencies and
assistance under Stafford Act section 408. Section 503 addresses the
amount of assistance the President may provide for emergency
assistance. These additions are a non-substantive change that would
improve clarity for the reader and do not reflect a change in statutory
authority.
We propose a few clarifying revisions to paragraph (b)(2). First,
we propose replacing the words ``statement as to the reasons'' with
``certification and explanation from'' in order to more accurately
reflect the form of a recipient's submission that it cannot perform or
contract for performance of the requested work. Second, we propose to
specify that this certification and explanation must come from the
State or Indian Tribal government. Finally, we propose including Indian
Tribal governments as one of the entities that must not be able to
perform or contract for performance of the requested work. These are
only revisions for clarity and would not represent substantive changes
in policy.
We propose revising paragraph (c)(1) to replace the first instance
of ``Regional Administrator'' with ``FEMA.'' This revision would
clarify that some requests for DFA may be approved by FEMA headquarters
instead of by a Regional Administrator. We also propose clarifying that
when FEMA (whether a Regional Administrator or headquarters) approves a
request for DFA, FEMA may perform or contract for the work itself or
will, as appropriate, issue a mission assignment to another Federal
agency. This is not a substantive change in policy; because the current
regulatory language does not make explicit that FEMA may handle the DFA
work itself, we are proposing such an addition for clarity. Paragraph
(c)(1) also incorrectly indicates that FEMA issues the mission
assignment via a letter to the Federal agency performing the mission
assignment. FEMA issues a mission assignment using various OMB-approved
forms, not via a letter. Therefore, we propose to remove the reference
to a mission assignment ``letter.'' Although an actual letter is not
used, the substance of the mission assignment remains the same. This is
not a substantive change.
In paragraph (c)(2), we propose non-substantive edits to improve
clarity, including the addition of the words ``more specific'' before
``statutory authority of another Federal agency.'' The relevant
restriction derives from appropriations law that prohibits augmentation
of a Federal agency's purpose, i.e., expanding into another Federal
agency's jurisdiction or area of authority. FEMA characterizes this
issue
[[Page 54978]]
as ``duplication of programs.'' The proposed edit here is to improve
clarity and is non-substantive.
In paragraph (d), we propose to clarify that the time limit for
completion of work by a Federal agency under a mission assignment is 60
calendar days after the President's declaration. The time limit has
always been calculated using calendar days, but we propose making that
explicit to improve clarity.
In paragraph (e), we propose only minor non-substantive edits.
xi. Section 206.209 Arbitration for Public Assistance Determinations
Related to Hurricanes Katrina and Rita Hurricanes Katrina and Rita
(Major Disaster Determinations DR-1603, DR-1604, DR-1605, DR-1606, and
DR-1607) (Proposed 206.210)
FEMA proposes no substantive changes to this section. The proposed
rule would redesignate the section as 206.210, update cross-references
to other sections in part 206 consistent with the other changes
proposed in this rule and replace the term ``Project Worksheet'' with
``Project Application,'' consistent with FEMA's pending update of its
Public Assistance forms.
D. 44 CFR Part 206, Subpart H--Public Assistance Eligibility
i. Section 206.220 General
FEMA proposes only non-substantive stylistic edits to this section
to improve clarity.
ii. Section 206.221 Definitions
In section 206.221, FEMA proposes to remove the top-level paragraph
designations in the section and reorder the definitions alphabetically.
FEMA proposes to add new definitions for the terms ``assistance
animal,'' ``household pet,'' and ``service animal.'' These proposed
definitions are currently used in FEMA's Public Assistance
guidance.\48\ Their addition to section 206.221 is not intended to
change their meaning, but simply to improve clarity and consistency in
the regulations.
---------------------------------------------------------------------------
\48\ See PAPPG at 119.
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FEMA proposes to define ``assistance animal'' as an animal that
works, provides assistance, or performs tasks for the benefit of a
person with a disability, or provides emotional support that alleviates
identified symptoms or effects of a person's disability. Although dogs
are the most common type of assistance animal, other animals can also
be assistance animals. This definition is based on the definition found
in U.S. Department of Housing and Urban Development (HUD) guidance.\49\
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\49\ See HUD, Office of Fair Housing and Equal Opportunity,
Notice FHEO-2020-01 (Jan. 28, 2020), available at <a href="https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf">https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf</a>.
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FEMA proposes to define ``household pet'' as a domesticated animal
that is traditionally kept in the home for personal rather than for
commercial purposes, can travel in commercial carriers, and be housed
in temporary facilities. Household pets do not include reptiles (except
turtles), amphibians, fish, insects/arachnids, farm animals (including
horses), and animals kept for racing purposes. This definition is based
on HUD's definition of household pets found in 24 CFR 5.306 and is
consistent with FEMA's current guidance.\50\
---------------------------------------------------------------------------
\50\ See PAPPG at 119.
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FEMA proposes to define ``service animal'' as any dog that is
individually trained to do work or perform tasks for the benefit of an
individual with a disability, including a physical, sensory,
psychiatric, intellectual, or other mental disability. Other species of
animals, whether wild or domestic, trained or untrained, are not
service animals for the purposes of this definition. The work or tasks
performed by a service animal must be directly related to the
individual's disability. Our proposed definition of ``service animal''
is based on the Americans with Disabilities Act (ADA), 42 U.S.C. 12101
et seq., and the U.S. Department of Justice's implementing regulations
at 28 CFR 36.104.
FEMA proposes to update the definition of ``educational
institution'' by adding references to Title 20 of the U.S. Code. The
references to the terms ``elementary school,'' ``secondary school,''
and ``institution of higher education'' have not been updated since
FEMA promulgated 44 CFR 206.221 in 1990.\51\ FEMA proposes to update
the references to these terms to reflect where they are defined in
current law. The Elementary and Secondary Education Act of 1965, as
amended by the Every Student Succeeds Act, Public Law 114-95, defines
the terms ``elementary school'' and ``secondary school.'' The Higher
Education Act of 1965, as amended, defines the term ``institution of
higher education.'' All three definitions are codified in Title 20 of
the U.S. Code (currently found at 20 U.S.C. 7801(19), 7801(45), and
1001(a), respectively).
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\51\ See 55 FR 2307 (Jan. 23, 1990).
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We also propose to clarify several definitions in this section.
First, we propose to revise the definition of ``immediate threat.,
which is currently defined as the threat of additional damage or
destruction from an event that can reasonably be expected to occur
within five years. The term ``immediate threat'' is used in the
criteria that must be met for debris removal and emergency protective
measures to be eligible for assistance. Some threats caused by a
declared incident are threats in the context of some future incident,
such as erosion to a beach creating the threat of damage to improved
property in the event of flooding from a 5-year storm.\52\ Other
threats are more direct, such as broken tree limbs or branches that are
overhanging improved property or public-use areas and creating the
threat of injury or damage to improved property if they fall.\53\ We
propose revising this definition to better describe these two types of
threats. We propose moving the existing definition to a new paragraph
and revising it to clarify that the five-year period is from the date
of the declared disaster and that, for flood incidents specifically, an
immediate threat is a threat from a five-year flood (a flood that has a
20 percent chance of occurring in any given year). We also propose
replacing the phrase ``the threat of additional damage or destruction''
in the existing definition with the phrase ``the threat to lives or
public health and safety, or of damage.'' This change would clarify
that the definition encompasses the full range of risks not just to
improved property, but also to individuals and public health and safety
that are at issue in debris removal and emergency protective measures
determinations. We propose removing the word ``destruction'' because it
is redundant with ``damage,'' and we propose removing the word
``additional'' to reflect that immediate threats may exist prior to any
initial damage or destruction having occurred. In other words,
reasonable expenses incurred in anticipation of and immediately
preceding a declared incident may also be eligible. We propose adding a
new paragraph covering the more direct type of immediate threats
mentioned above. This new paragraph would provide that immediate threat
includes an imminent danger requiring an urgent response to address
serious risks to lives or public health and safety, or to avoid damage
from an incident. These proposed revisions are consistent with FEMA's
guidance on this issue \54\ and are only intended to clarify the
regulations. We do not seek to make substantive changes to how we
assess immediate threats for
[[Page 54979]]
the purposes of debris removal or emergency protective measures. We
specifically request public comment on the proposed revisions to this
definition and whether the new definition would accurately capture how
the term is used in the Public Assistance program.
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\52\ See PAPPG at 104.
\53\ See PAPPG at 102.
\54\ See PAPPG at 97-139.
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``Improved property'' is currently defined as a structure,
facility, or item of equipment which was built, constructed, or
manufactured. The term ``facility'' is currently defined in section
206.201 as ``any publicly or privately owned building, works, system,
or equipment, built or manufactured, or an improved and maintained
natural feature.'' As discussed above, we propose to revise that
definition by replacing the word ``works'' with ``structure,'' because
the latter term is more commonly used in FEMA's regulations and
guidance. Accordingly, we propose to remove the word ``structure'' from
the definition of ``improved property'' in section 206.221 as it would
be redundant. Additionally, although the current definition of
``improved property'' encompasses facilities, and ``facility'' is
defined in section 206.201 as including improved and maintained natural
features, there has been confusion as to whether improved and
maintained natural features are improved property. To address this
confusion and make clear that improved property does include improved
and maintained natural features, FEMA proposes to revise the definition
of ``improved property'' to explicitly include improved and maintained
natural features. The current definition also states that land used for
agricultural purposes is not improved property. For clarity, we propose
to add crops and livestock as examples of agricultural purposes.
In the definition of ``private nonprofit facility'' (existing
paragraph (e)), the introductory text lists the types of eligible
private nonprofit (PNP) facilities, and the succeeding paragraphs
provide more detailed definitions for each type. We propose revisions
to update the introductory text to reflect current statutory language
in section 102(11)(A) of the Stafford Act, which provides a definition
of PNP facility. First, both section 102(11)(A) and the paragraph
defining ``utility'' (existing (e)(3)) include an item for irrigation
facilities, but they were inadvertently omitted from the list in the
introductory text to the regulatory definition. We propose to correct
this oversight and add irrigation facilities to this list. This is a
technical, non-substantive change.
Second, we propose to add ``rehabilitational'' to the introductory
text and add a new paragraph defining ``rehabilitational facility.''
This term has been in section 102 since 1988,\55\ but was inadvertently
omitted from the introductory text and paragraphs here. We propose to
define ``rehabilitational facility'' as a facility that provides
alcohol and drug treatment and other rehabilitational services. FEMA
intends for this definition to clarify the distinction between this
term and the separate term ``rehabilitation facility,'' which is used
in the paragraph definitions of ``medical facility'' and ``essential
social service facility.'' While the latter term refers to more
traditionally medical-focused treatment of injury or disease, a
``rehabilitational facility'' as proposed to be defined offers
treatment of substance use disorders and related services. This
proposed definition would not represent a substantive policy change or
alter FEMA's implementation of section 102(11)(A) of the Stafford Act.
FEMA is proposing it to ensure consistency between the statute and
regulations and improve clarity for the public.
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\55\ See Public Law 100-707, 102 Stat. 4689, 4690.
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Third, we propose to add ``center-based childcare'' to the proposed
introductory text and add a new paragraph defining ``center-based
childcare.'' Section 1238(b) of DRRA amended section 102(11)(A) of the
Stafford Act to add ``center-based childcare'' to the definition of
``private nonprofit facility.'' Our proposed additions in the
definition would implement this statutory change. In the proposed
paragraph, we would define ``center-based childcare'' as a private
nonprofit facility that the State or Tribal Department of Children and
Family Services, Department of Human Services, or similar agency,
recognizes as a licensed childcare facility. This definition is
consistent with FEMA's current guidance on childcare facilities,\56\
and does not represent a substantive policy change.
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\56\ See PAPPG at 48.
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Fourth, we propose to revise the introductory text to the
definition to reflect changes in the Bipartisan Budget Act of 2018.
Section 20604(a) of the Bipartisan Budget Act of 2018 amended section
102(11)(A) of the Stafford Act to provide that the definition of PNP
facilities includes educational facilities without regard to the
religious character of the facility and amended section 102(11)(B) to
replace the term ``essential services of a governmental nature'' with
the term ``essential social services.'' To incorporate these amendments
in FEMA's regulations, we propose revising the introductory text to the
definition to replace ``educational'' with ``educational (without
regard to the religious character of the facility)'' and to replace
``essential governmental type services'' with ``essential social
services.'' FEMA proposes the change from ``essential governmental type
services'' to ``essential social services'' to conform FEMA's
regulations with the current statutory text. This change would not
represent a substantive change in policy.\57\
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\57\ 42 U.S.C. 5122(11)(B).
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The fifth revision we propose within the introductory text to the
definition of ``private nonprofit facility'' is to remove the term
``aged and disabled'' and replace it with ``older adults and persons
living with disabilities.'' Terminology has changed since the original
drafting of Sec. 206.221 and FEMA proposes this change to align with
more updated terminology. This change would not represent a substantive
change in policy.
The last revision we propose to the introductory text to the
definition of ``private nonprofit facility'' is to remove the words
``and such facilities on Indian reservations'' and ``Further definition
is as follows'' from the end. The reference to facilities on Indian
reservations has no practical impact on facility eligibility and causes
confusion. Section 102(11)(A) of the Stafford Act, 42 U.S.C.
5122(11)(A), includes in the definition of ``private nonprofit
facility'' a category for facilities on reservations, to be defined in
regulation. However, neither the existing nor proposed regulations
include a definition for facilities on reservations. As such, only the
specific facility types named in the definition (existing paragraph
(e)) are eligible, and they are eligible regardless of whether they are
located on a reservation. We propose removing the reference to
facilities on Indian reservations to avoid confusion. This revision
would not change which facilities are eligible. Similarly, the mention
of ``further definition'' in the last sentence is unnecessary, and we
propose to remove it to simplify the paragraph and improve clarity.
The paragraph defining ``educational facilities'' to the definition
of ``private nonprofit facility'' (existing (e)(1)), currently states
that they are classrooms plus related supplies, equipment, machinery,
and utilities of an educational institution necessary or appropriate
for instructional, administrative, and support purposes. We propose to
explicitly limit this definition to PNP facilities, for the sake of
clarity, and to explicitly include in the definition ``related
buildings.'' FEMA has found that many educational
[[Page 54980]]
facilities have buildings that may contain support functions in
addition to classrooms, for example, dormitories. These buildings may
be essential to the provision of the school's educational services, but
the current regulation is not clear as to their eligibility. We propose
to clarify that related buildings are indeed eligible, consistent with
current FEMA practice and guidance.\58\ This proposed revision is not
substantive. Also, in this paragraph, we propose to remove the word
``machinery'' as it is already encompassed by the word ``equipment,''
which immediately precedes it. This is a non-substantive change
intended to simplify the provision and prevent confusion. Further, we
propose to remove from this paragraph the exclusion of buildings,
structures, and related items used primarily for religious purposes or
instruction. Consistent with the proposed revisions to the introductory
text in the proposed definition, this proposed change would reflect the
amendments to the Stafford Act in section 20604(a) of the Bipartisan
Budget Act of 2018, which specifically provided that an educational
facility could qualify as a PNP facility regardless of its religious
character.
---------------------------------------------------------------------------
\58\ See PAPPG at 45.
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In the proposed edits to the paragraph defining ``utility''
(existing (e)(2)), we propose to explicitly limit the application of
the definition to PNP facilities, for the sake of clarity, and to
further clarify that PNP irrigation facilities are not considered
``utilities'' under this paragraph. This is to avoid any possible
confusion that such facilities are also considered utilities. Instead,
a proposed paragraph (existing (e)(3)) would separately define PNP
irrigation facilities.
In the proposed paragraph defining ``medical facility'' (existing
(e)(5)), we propose to make a technical correction to the citation. The
current citation, 42 U.S.C. 2910, should be 42 U.S.C. 291o.
In the proposed paragraph defining ``essential social service
facility'' (existing (e)(7)), we propose a number of revisions. First,
we propose to revise the defined term ``other essential governmental
service facility'' to ``essential social service facility.'' Section
20604(a) of the Bipartisan Budget Act of 2018 amended section
102(11)(B) of the Stafford Act to redefine this term, and this revision
would update FEMA's regulations to reflect that. Section 20604(a) also
added ``houses of worship'' to the list of eligible PNP facilities, and
we accordingly propose to add ``house of worship'' to the list of
eligible PNP facilities in the proposed paragraph. Second, we propose
adding the words ``a private nonprofit facility'' to explicitly limit
this definition to PNP facilities, for the sake of clarity. Third, we
propose adding performing arts facilities and community arts centers as
eligible PNP facilities. Section 688 of PKEMRA amended section 102 of
the Stafford Act to add performing arts facilities and community arts
centers as eligible PNP facilities, and this revision would update
FEMA's regulations to reflect that. Fourth, we propose adding food
banks as eligible PNP facilities. Section 1214 of the DRRA amended
section 102 of the Stafford Act to include food banks as eligible PNP
facilities, and this revision would update FEMA's regulations to
reflect that. Fifth, we propose adding broadcasting facilities as
eligible PNP facilities. Section 2(a) of the Emergency Information
Improvement Act of 2015 amended section 102 of the Stafford Act to
include broadcasting facilities as eligible PNP facilities and this
revision would update FEMA's regulations to reflect that. The proposed
revisions would reflect the current statutory language, which provides
that these categories of PNPs are eligible to receive PA funding, and
are consistent with current FEMA guidance.\59\ Under this proposed
rule, the paragraph would list the following facility types: museums,
zoos, performing arts facilities, community arts centers, community
centers, libraries, homeless shelters, senior citizen centers,
rehabilitation facilities, shelter workshops, food banks, broadcasting
facilities, houses of worship, and facilities that provide health and
safety services of a governmental nature.\60\
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\59\ See PAPPG at 43, 46.
\60\ ``Shelter workshop'' and ``senior citizen centers'' are the
terms used in section 102 of the Stafford Act, 42 U.S.C.
5122(11)(B), but other facilities providing services for individuals
with disabilities and/or older adults may qualify for assistance if
they meet the standards for one of the other facility types. See
PAPPG at 43-47.
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We further propose revising the last sentence of the paragraph
defining ``essential social service facility'' to replace ``All such
facilities must be open to the general public'' with ``such a facility
must provide essential social services to the general public.'' This
revision would better align FEMA's regulations with the language of the
Stafford Act, as amended by section 20604(a) of the Bipartisan Budget
Act of 2018 and improve clarity. Section 102(11)(B) of the Stafford Act
requires that facilities provide essential social services to the
general public in order to qualify as eligible PNP facilities under the
statute, and also provides that houses of worship may not be excluded
from the definition of PNP facility on the grounds that leadership or
membership in the organization operating the house of worship is
limited to persons who share a religious faith or practice. As
currently written, one could interpret the last sentence to require
that PNPs allow members of the public open access to their facilities
or not restrict leadership or membership, instead of simply providing
services to the public. The proposed revision to this sentence would
avoid that potential confusion and ensure that it is interpreted
consistently with the statutory requirements.
Next, FEMA proposes to revise the definition of ``private nonprofit
organization.'' In proposed paragraph (1) in the definition (existing
(f)(1)), FEMA proposes to update the outdated reference to the Internal
Revenue Code of 1954. The current authority is the Internal Revenue
Code of 1986, as amended. This revision is also proposed in section
206.2 under the definition of ``private nonprofit organization.'' In
proposed paragraph (2) (existing (f)(2)), FEMA proposes to remove the
words ``nonrevenue producing'' and add a reference to Tribal law to
make the definition consistent with section 206.2(a)(19)(ii). The
definitions should be uniform, and FEMA currently applies the
definition as it appears in section 206.2.\61\ Lastly, we propose to
add new paragraph (3) to allow private nonprofit organizations that are
exempt from the requirements to apply for Internal Revenue Code section
501(c)(3) status or applicable State or Tribal tax exempt status to
establish their status through (1) articles of association, bylaws, or
other organizing documents indicating that it is an organized entity
and (2) a certification that it is compliant with section 501(c)(3) of
the Internal Revenue Code and State or Tribal law requirements.
Consistent with the addition proposed in section 206.2(a)(19)(iii),
discussed above, this proposed addition is meant to ease the burden for
certain private nonprofit organizations that are not able to establish
their nonprofit status under proposed paragraphs (1) or (2).
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\61\ FEMA proposes maintaining this definition in both sections
to improve readability. Section 206.221 includes several provisions
regarding PNPs and including the definition there would help avoid
confusion and the need to cross-reference section 206.2.
---------------------------------------------------------------------------
Finally, eligibility for Public Assistance is dependent on the
existence of an eligible facility, but the agency recognizes that care
for vulnerable populations such as those for
[[Page 54981]]
older adults and persons with disabilities, has evolved since the
original drafting of FEMA's regulations. FEMA seeks comment on whether
its definition of ``private nonprofit facility'' is sufficiently broad
to encompass all private nonprofit organizations providing service to
older adults and persons with disabilities that are eligible to receive
public assistance under the Stafford Act. Stakeholders should identify
gaps that might be addressed if FEMA offered further amendment to the
definition of ``private nonprofit facility'' in the final rule.
iii. Section 206.222 Applicant Eligibility
Section 206.222 lists the entities that are eligible to apply for
Public Assistance through the recipient. We propose to revise paragraph
(c) to replace ``Indian tribes'' with ``Indian Tribal governments,''
for consistency with the definition at 44 CFR 206.201 and the Stafford
Act. Neither this nor the other changes proposed in this section are
substantive.
iv. Section 206.223 General Work Eligibility
Section 206.223 describes general work eligibility. Paragraph (a)
lists general eligibility requirements for an item of work. We propose
to revise paragraph (a)(2) to clarify that emergency operation center
activities are eligible even if they are located outside of the
designated area. It is FEMA's practice to allow for emergency
operations center activity \62\ under paragraph (a)(2), and the change
would simply update the regulatory text for clarity and consistency.
---------------------------------------------------------------------------
\62\ See PAPPG at 52.
---------------------------------------------------------------------------
Paragraph (b) specifically addresses PNP facilities. For work on
PNP facilities to be eligible for financial assistance, an organization
meeting the definition of a ``private nonprofit organization'' in
section 206.221 must own or operate the PNP facility. FEMA proposes to
rewrite paragraph (b) to improve clarity for the reader. Additionally,
these edits would correct the language that says facilities must be
owned ``and'' operated to read owned ``or'' operated, in conformance
with 44 CFR 206.222(b) and FEMA's application of the requirement.
FEMA proposes to consolidate paragraphs (c) and (d) into a revised
paragraph (c) titled ``Rural community, unincorporated town or village,
or other public entity facilities.'' Section 102(8)(C) of the Stafford
Act provides that the term ``local government'' includes ``a rural
community, unincorporated town or village, or other public entity, for
which an application for assistance is made by a State or political
subdivision of a State.'' Section 206.223(c) properly reflects that
facilities owned or operated by public entities are eligible for
financial assistance, but paragraph (d) only discusses facilities
serving a rural community or unincorporated town or village that are
owned by a PNP. While it is correct that work performed on PNP
facilities may be eligible, this is already addressed by paragraph (b)
and confuses what are separate issues. Facilities serving a rural
community or unincorporated town or village are also eligible if they
are the legal responsibility of the rural community or unincorporated
town or village itself. To improve clarity, we propose revising
paragraph (c) to cover rural communities, unincorporated towns or
villages, and other public entities together, consistent with the
statutory language.
Per the above changes, existing paragraph (e) would be redesignated
paragraph (d), and FEMA further proposes to add a new paragraph (e)
addressing duplication of benefits. This new paragraph would describe
the recipient's and subrecipient's obligations to notify FEMA of
available benefits and to pursue recovery of available benefits, and
would reiterate that FEMA will disallow or recoup duplicate benefits.
We propose adding this new paragraph (e) to improve usability for
readers and emphasize these requirements in the relevant section of the
regulations. Nothing in proposed paragraph (e) is a new requirement.
The provision is based on section 312(c) of the Stafford Act, which
requires FEMA to recover other assistance that is available. For
example, if a recipient or subrecipient did not receive insurance
proceeds because they did not present the claims or assert the legal
rights, FEMA would deduct the value of those unasserted rights to
insurance proceeds from the Public Assistance grant amount.
v. Section 206.224 Debris Removal
In paragraphs (a) and (b), we propose to make non-substantive
stylistic edits to make the provisions easier to understand. The
proposed edits would not change the meaning of these paragraphs.
We also propose to revise paragraph (a)(4) to provide that the
Regional Administrator must approve extensions of the two-year deadline
to complete debris removal under the terms of that paragraph, instead
of the Assistant Administrator for the Disaster Assistance Directorate
(now the Recovery Directorate). FEMA believes the Regional
Administrator is best positioned to determine whether an extension is
appropriate, and that approval at the Assistant Administrator level is
not necessary in this situation. The delay and administrative burden of
a lengthier review process, which is required for approval by the
Assistant Director, outweigh any marginal benefit it may have.
vi. Section 206.225 Emergency Work
FEMA proposes to revise the heading of this section from
``Emergency work'' to ``Emergency protective measures.'' FEMA splits
emergency work into two categories: debris removal and emergency
protective measures. Currently, the heading of sections 206.224 and
206.225 are confusing as both concern emergency work, but only section
206.225 is entitled ``emergency work.'' We propose to revise the
heading of this section to more accurately reflect the way FEMA
categorizes emergency work. Similarly, in paragraph (a)(2), we propose
to replace ``emergency work'' with ``emergency protective measures.''
These are non-substantive changes intended to improve clarity.
Also, in paragraph (a)(2), we propose replacing ``cope with'' with
``eliminate, lessen, or avert,'' and in paragraph (a)(3) we propose
adding ``avert'' to ``eliminate'' and ``lessen.'' ``Avert'' is used in
the current definition of ``emergency work'' in 206.201, as well as in
section 502 of the Stafford Act. These proposed changes in paragraph
(a) are non-substantive and would simply ensure clear, consistent
language throughout part 206.
In paragraph (a)(3)(ii), we propose to remove the word
``additional.'' Emergency protective measures authorized under section
403 or 502 of the Stafford Act include work that eliminates, lessens,
or averts immediate threats of significant damage to improved public or
private facilities. The Stafford Act does not limit emergency
protective measures to ``additional'' damage to improved facilities.
That is, FEMA does not currently limit emergency work to ``additional''
damage, and FEMA reimburses emergency protective measures that protect
a facility prior to damage. For example, emergency protective measures
such as sandbagging, bracing/shoring structures, and construction of
temporary levees are eligible for reimbursement. Removal of the word
``additional'' is a non-substantive change.
[[Page 54982]]
FEMA proposes to revise paragraphs (c) and (d) to clarify that
pursuant to these provisions FEMA provides emergency communications and
emergency public transportation in the form of direct Federal
assistance. In paragraph (c), this new language would replace the
existing statement about establishing and making emergency
communications available to State and local government officials.
Although this current language is a reasonably accurate description of
the DFA process, FEMA believes it could be better worded to improve
clarity. FEMA therefore proposes to explicitly describe this assistance
as DFA. The proposed revision would not change how FEMA provides
emergency communications or other types of DFA. Likewise, under section
206.225(a), emergency communications and emergency public
transportation are only eligible to save lives, to protect public
health and safety, and to protect improved property. Once those needs
have been met, funding is discontinued. As there is no need to restate
this requirement in paragraphs (c) and (d), FEMA proposes to remove the
relevant sentence from each paragraph for clarity.
Additionally, FEMA proposes to add specific mention of appropriate
auxiliary aids and services where necessary for effective communication
and paratransit services for individuals with disabilities to
paragraphs (c) and (d). FEMA currently provides DFA for these
services,\63\ and this proposed revision would not change that, but
simply improve clarity and highlight to the reader the availability of
this assistance, consistent with FEMA's obligation to provide
accessible disaster assistance.\64\
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\63\ See PAPPG at 114.
\64\ See 42 U.S.C. 5151, 29 U.S.C. 794.
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FEMA proposes to add a new paragraph (e) to address the rescue,
care, shelter, and essential needs of household pets, service animals,
and assistance animals. Section 689(b) of PKEMRA and section 4 of the
PETS Act amended section 403(a) of the Stafford Act to include as
essential assistance the rescue, care, shelter, and essential needs of
individuals with household pets and service animals and of such pets
and animals. With the change to FEMA's statutory authority, the costs
recipients and subrecipients expend to rescue, shelter, care for, and
provide essential needs for household pets and service animals are
reimbursable, and we therefore propose updating section 206.225
accordingly. Consistent with FEMA guidance on this issue,\65\ proposed
paragraph (e) includes ``assistance animals,'' since animals meeting
the definition of that term proposed in section 206.221 would fall
within the scope of section 403(a) of the Stafford Act.\66\
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\65\ See PAPPG at 119.
\66\ 42 U.S.C. 5170b(a)(3)(J)(ii) refers to ``such pets and
animals,'' indicating that household pets and service and assistance
animals are contemplated within our statutory authority.
---------------------------------------------------------------------------
FEMA proposes to add a new paragraph (f) to address the provision
of temporary relocation facilities for essential community services,
which is authorized by section 403(a)(3)(D) of the Stafford Act. As a
result of a disaster, essential community services provided at public
and PNP facilities may be disrupted to the extent that they cannot
continue unless they are relocated to another facility. An applicant
may request reimbursement for the reasonable costs for temporary
facilities so that it can continue to provide its essential community
services. Consistent with current FEMA guidance, paragraph (f) would
define ``essential community services'' as those services performed by
governmental entities or private nonprofit organizations that are
necessary to save lives, protect and preserve property or public health
and safety, or preserve the proper function and health of the community
at large.\67\ Proposed paragraph (f) would also include a non-
exhaustive illustrative list of specific essential community services
as previously provided in guidance. The temporary relocation provision
in section 403(a)(3)(D) of the Stafford Act is not new and FEMA's
administration of temporary relocation assistance is not changing; the
proposed addition of paragraph (f) would simply provide additional
information in the regulations to improve clarity and usability.
---------------------------------------------------------------------------
\67\ See PAPPG at 130.
---------------------------------------------------------------------------
vii. Section 206.226 Restoration of Damaged Facilities
FEMA proposes to revise the introductory text in this section by
adding a parenthetical after ``restore'' that reads ``(repair,
reconstruct, or replace),'' which more clearly reflects the scope of
projects that are eligible for Public Assistance funding under section
406 of the Stafford Act. We also propose revising this sentence to
clarify that the restoration of facilities must be on the basis of
their ``predisaster design,'' consistent with the term used in the
definition in section 206.201. This is not a substantive change.
To improve clarity and readability, we propose to reorganize the
paragraphs in this section to be in alphabetical order.
We propose to remove existing paragraphs (a)(2) and (3), which
allow public elementary and secondary school facilities to receive
assistance under the Stafford Act even though they may be otherwise
eligible for assistance from the U.S. Department of Education. The
exception was added on October 25, 1993, to provide an exception to
FEMA's general practice of deferring to the authority of another
Federal agency when both FEMA and the other agency have authority to
grant assistance in response to a declared major disaster.\68\ The
change eliminated the overlap of FEMA and the U.S. Department of
Education programs and any confusion resulting from that overlap. Due
to changes made by the No Child Left Behind Act of 2001, 20 U.S.C.
6301, the U.S. Department of Education no longer has the authority to
assist elementary and secondary schools in response to a disaster.
Therefore, the exception is no longer necessary, and these paragraphs
are no longer applicable. Removing these paragraphs is not a
substantive change. FEMA will continue to provide assistance to public
and eligible PNP elementary and secondary school facilities as
otherwise authorized by 44 CFR part 206.
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\68\ Disaster Assistance; Public Elementary and Secondary School
Facilities Final Rule, 58 FR 55021 (Oct. 25, 1993).
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In proposed paragraph (c) (existing (d)), we propose revising the
heading to read ``Codes and standards,'' consistent with the other
edits to this paragraph, discussed below. We also propose conforming
edits elsewhere in the paragraph to change ``standards'' to ``codes and
standards.'' We also propose designating the introductory text as
paragraph (c)(2), adding a new paragraph (c)(1), and redesignating the
remaining paragraphs accordingly.
Section 1235(b) of DRRA amended section 406(e) of the Stafford Act
to require FEMA to fund repair, restoration, reconstruction, or
replacement in conformity with ``the latest published editions of
relevant consensus-based codes, specifications, and standards that
incorporate the latest hazard-resistant design and establish minimum
acceptable criteria for the design, construction, and maintenance of
residential structures and facilities . . . .'' We propose to codify
this requirement in our regulations in proposed paragraph (c)(1). Per
the proposed revision to the definition of ``facility'' in section
206.201, the proposed language in proposed section 206.226(c)(1) does
not include the word ``structure.'' FEMA has issued interim guidance on
DRRA section 1235(b),
[[Page 54983]]
which defines the framework for consistent and appropriate
implementation of this consensus-based codes, specifications, and
standards requirement,\69\ and this proposed addition to the
regulations would not displace that guidance. The framework and details
provided there would continue to apply; this proposed rule would simply
incorporate the basic statutory requirement into the regulations. We
also propose revising new paragraph (c)(2) (existing (d)) to provide
that the costs of restoration under other Federal, State, Tribal, and
local codes and standards are still eligible, provided that they (1)
are at least as stringent as the applicable code or standard
established in new paragraph (c)(1), and (2) meet the existing
requirements being retained in proposed paragraphs (c)(2)(i)-(v). This
proposed revision would ensure that the new DRRA-mandated consensus-
based codes and standards apply, but also allow for the funding of
projects under other codes and standards that meet or exceed that
minimum. This proposed revision is consistent with FEMA's guidance on
DRRA section 1235(b).\70\
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\69\ Consensus-Based Codes, Specifications and Standards for
Public Assistance, FEMA Recovery Interim Policy FP-104-009-11 Ver.
2.1 (Dec. 20, 2019), available at <a href="https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1235b-public-assistance-codes-standards-interim-policy.pdf">https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1235b-public-assistance-codes-standards-interim-policy.pdf</a>.
\70\ See Id. at 4.
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In proposed paragraph (c)(2)(i) (existing (d)(1)), we propose
removing ``repair,'' since it is redundant with ``restoration.'' This
is consistent with the proposed revision to the introductory text of
section 206.226, discussed above. We also propose removing the
undesignated parenthetical between paragraphs (c)(2)(i) and (ii)
(existing (d)(1) and (2)), which explains that standards may be
different for new construction than for repair work. Removing this
language would not be a substantive change, but simply improve the
readability and clarity of the regulations; paragraph (c)(2)(i) would
already make clear that different types of restoration may have
different applicable codes and standards, so the parenthetical is
redundant, and its location in the paragraph may cause confusion. In
addition, we propose to remove existing paragraph (d)(3)(ii), which
addresses standards for State governments until January 1, 2000, and
local governments until January 1, 1999. This paragraph is no longer
necessary because these dates have passed.
We propose to add a new paragraph (d) to address disaster damage.
The requirement that, to be eligible for restoration under section
206.226, damage must be the result of a major disaster is a fundamental
requirement of section 406 of the Stafford Act. Deterioration, loss of
useful life, or aging of a facility are not damage caused by a
disaster, and therefore do not qualify for Public Assistance funding.
This proposed addition would emphasize the disaster damage requirement
and improve clarity in the regulations.
Proposed paragraph (f) (existing (e)) addresses hazard mitigation
and states that, in approving grant assistance for restoration of
facilities, the Regional Administrator may require cost-effective
hazard mitigation measures not required by applicable standards.
Although it has been FEMA's policy to consider hazard mitigation
measures when evaluating projects for Public Assistance grants,\71\
FEMA proposes to add language clarifying that recipients and
subrecipients may request cost-effective hazard mitigation measures
when seeking grant assistance for the restoration of facilities to
underscore the importance of hazard mitigation in the recovery from a
disaster. In recognition that there are some projects in which hazard
mitigation is not appropriate, or that some measures may not be cost-
effective, the Regional Administrator must consider, but is not
required to approve, all proposals for hazard mitigation.
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\71\ See PAPPG at 153.
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Proposed paragraph (i) (existing (c)) lists the critical services
that eligible PNP facilities must provide in order to be eligible for
Public Assistance funding for permanent work without applying for a
loan from the U.S. Small Business Administration. Section 689h of
PKEMRA amended section 406(a)(3)(B) of the Stafford Act to include
education as a critical service. To implement this new statutory
authority, FEMA proposes to add ``education'' to this list of critical
services. Similarly, the Emergency Information Improvement Act of 2015,
Public Law 114-111, amended the list of critical services in section
406(a)(3)(B) of the Stafford Act to replace ``communications'' with
``communications (including broadcast and telecommunications)''. FEMA
proposes to make this same change to the list of critical services in
this paragraph. FEMA also proposes to revise paragraphs (i)(1) and (2)
(existing (c)(1) and (2)) to remove unnecessary cross-references and
improve clarity and readability; these changes would not alter the
current PNP eligibility requirements.
Proposed paragraph (j) (existing (g)) addresses approval of funding
for relocation. Existing paragraph (g)(1) currently states that the
Regional Administrator may approve funding for and require restoration
of a destroyed facility at a new location when the facility is and will
be subject to repetitive heavy damage, the approval is not barred by
other provisions in 44 CFR, and the overall project, including all
costs, is cost-effective. FEMA proposes three clarifying, non-
substantive edits to proposed paragraph (j)(1).
First, we propose replacing the phrase ``a destroyed facility''
with ``a damaged facility that is not repairable, per paragraph (k)(1)
of this section.'' Under proposed paragraph (k)(1) (existing (f)(1)),
if the cost to repair a damaged facility exceeds 50 percent of the cost
to replace the facility, it is considered not repairable. Damaged
facilities that are not destroyed but that are not repairable are
treated the same as destroyed facilities with respect to relocation
assistance. The proposed change would make clear that the Regional
Administrator may approve funding for and require relocation of these
damaged, not repairable facilities. The proposed change would not
affect the eligibility of destroyed facilities. Destroyed facilities
are considered not repairable and would continue to be eligible for
relocation assistance if the other requirements of proposed paragraph
(j) are met.
Second, FEMA proposes to revise proposed paragraph (j)(1)(ii) to
clarify that FEMA regulation or applicable statutory requirements must
not bar relocation approval. Adherence to applicable statutory
requirements is necessary even if those requirements are not explicitly
invoked in FEMA regulations in Title 44 CFR.
Third, we propose to remove the words ``including all costs'' from
proposed paragraph (j)(1)(iii). In determining the cost-effectiveness
of relocation, it is not necessary to include every cost and it is
unlikely that all costs will be known at the time the cost-
effectiveness determination is made. FEMA considers the larger context
of the requested relocation when determining cost-effectiveness, such
as whether the applicant provides an essential community service that
should be relocated. The regulatory text should not suggest the burden
for establishing cost-effectiveness is higher than it is. This proposed
revision is consistent with FEMA's current guidance on relocation.\72\
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\72\ See PAPPG at 160 (``If the cost to relocate the facility is
less than the eligible cost to replace the facility at its original
location . . . then the project is cost effective. In instances
where the cost of relocation exceeds the cost to replace the
facility at its original location FEMA may . . . determine cost
effectiveness.'').
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[[Page 54984]]
In proposed paragraph (j)(2), we propose to clarify that when
relocation is required by the Regional Administrator, it is ``the
construction of'' ancillary facilities such as roads and utilities that
is eligible.
Existing paragraph (g)(3) states that, when relocation is required
by the Regional Administrator, no future funding for repair or
replacement of a facility at the original site will be approved. We
propose to clarify that the funding referred to is FEMA funding. We
also propose to replace the reference to 44 CFR part 9 with a reference
to 44 CFR part 80. Part 80, added to the CFR in 2007,\73\ consolidated
FEMA's procedures and requirements for the acquisition of property for
open space and expanded the scope of the prior regulations to address
the use of all types of mitigation funds.
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\73\ See Flood Mitigation Grants and Hazard Mitigation Planning,
72 FR 61720 (Oct. 31, 2007) (interim final rule); see also Flood
Mitigation Grants and Hazard Mitigation Planning, 74 FR 47471 (Sept.
16, 2009) (final rule).
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In proposed paragraph (j)(4), we propose to remove the 90 percent
limit on eligible costs for alternate projects to reflect section
1207(a) of DRRA, which amended section 406(c) of the Stafford Act to
remove the 90 percent Federal cost share limit for alternate projects.
This proposed revision would incorporate the statutory change without
alteration. Also, in proposed paragraph (j)(4), we propose clarifying
that if the actual project costs for an alternate project are less than
the estimated costs, only the actual costs will be eligible for
funding. This is not a substantive policy change; we would simply be
making this limitation explicit.\74\
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\74\ See PAPPG at 164.
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Lastly, in proposed paragraph (j)(5), we propose to remove an
outdated reference to 44 CFR part 10, which was removed in 2016.\75\
When considering the environmental planning and historic preservation
impacts of providing funding for projects under the Public Assistance
program, FEMA now uses DHS Instruction Manual 023-01-001-1, Revision
01, and Directive 023-01, Implementation of the National Environmental
Policy Act, and FEMA Directive 108-1 and Instruction 108-1-1,
Environmental Planning and Historic Preservation Responsibilities and
Program Requirements, instead of 44 CFR part 10.
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\75\ See Removal of Environmental Considerations Regulations, 81
FR 56514 (Aug. 22, 2016).
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Proposed paragraph (k) (existing (f)) addresses when a facility
should be repaired versus replaced. Existing paragraph (f)(1) states in
part that ``[a] facility is considered repairable when disaster damages
do not exceed 50 percent of the cost of replacing a facility to its
predisaster condition.'' We propose to replace the words ``disaster
damages do'' with ``the estimated repair cost for disaster damage
does.'' This is a more accurate statement since it is the costs of
repair rather than the damage incurred that is considered when
determining whether a facility is repairable. This change would not
substantively alter the requirements of this paragraph. Instead, it is
simply intended to improve clarity. Similarly, we propose replacing the
words ``predisaster condition'' with ``predisaster design and
function.'' This latter term is used more often in FEMA's guidance on
repair and replacement,\76\ and would improve clarity and consistency;
it would not be a substantive change. We also propose replacing the
second occurrence of the words ``a facility'' with ``the facility'' to
avoid confusion. This would not be a substantive change.
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\76\ See PAPPG at 157, 217.
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Finally, in proposed paragraph (l)(1) (existing (k)(1)), we propose
to change the subheading from ``Alternative use facilities'' to
``Converted facilities'' in order to avoid confusion with ``alternate
projects,'' which are addressed in another section of this subpart. We
also propose to reword the text to clarify the limitations of
eligibility for converted facilities. When a facility is being used for
an alternate use at the time of the disaster, it is eligible for
restoration either to the alternate use or to the original use,
whichever is less. For example, a school being used as a hospital at
the time of the disaster would be reimbursed for eligible costs to
restore the facility to a school, or a hospital, whichever is less.
This is detailed in FEMA's current guidance,\77\ but the regulatory
language in existing paragraph (k)(1) does not make this clear, so we
propose to revise the text to improve clarity and consistency.
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\77\ PAPPG at 140.
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As clarified in the preceding paragraph, FEMA currently considers
eligible the lesser of the cost to restore a converted facility to its
immediate pre-disaster use or its original use. FEMA requests comment
on whether to amend its regulations to allow reimbursement in some or
all cases for the cost of restoring the facility to its original design
or to the design for the purpose the facility was being used prior to
the disaster, regardless of the lesser cost. FEMA seeks feedback on how
best to balance supporting community-driven recovery and responsible
stewardship of taxpayer funds and whether there are specific criteria
FEMA should consider when evaluating converted facilities projects.
We also propose non-substantive grammatical edits to proposed
paragraph (l)(2) (existing (k)(2)) to refer to ``facility'' in the
singular instead of the plural, to match the usage in proposed
paragraph (l)(1) (existing (k)(1)).
viii. Section 206.227 Snow Assistance
We propose to revise section 206.227 by replacing the word
``snowstorms'' with ``snowfall'' to clarify that FEMA's assessment of
record or near-record conditions for the purposes of snow assistance is
based on the amount of snow that falls. This change is non-substantive,
but would improve clarity and make the language in section 206.227
consistent with the language used in FEMA's guidance on snow
assistance.\78\
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\78\ See PAPPG at 238.
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ix. Section 206.228 Allowable Costs
We propose to revise the introductory text in section 206.228 to
clarify the applicability of different authorities to the Public
Assistance program. While 2 CFR part 200 provides basic requirements
for allowable costs for all Federal awards, the Public Assistance
program is limited to the assistance authorized and other requirements
imposed by the Stafford Act.\79\ Part 200 therefore applies only to the
extent that it does not conflict with the more specific statutory
provisions, or with FEMA's implementation of those provisions in
regulation and guidance. The revised language does not represent a
substantive policy change with respect to allowable costs but is simply
intended to more accurately describe the interplay between these
different authorities.
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\79\ See also 2 CFR 200.420 (``In case of a discrepancy between
the provisions of a specific Federal award and the provisions below,
the Federal award governs'').
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We propose to replace paragraph (a) with paragraph (a)(1) and to
redesignate the remaining paragraphs accordingly. The heading of new
paragraph (a) would be revised to read ``Eligible Force Account
Equipment Costs,'' to more accurately describe its contents.
We also propose to remove paragraph (a)(2)(ii) to remove the
provision on debris removal work for major disasters and emergencies
declared in response to
[[Page 54985]]
Hurricane Sandy. This provision is out of date and no longer needed.
We propose to add a new paragraph 206.228(b)(2) incorporating the
Public Assistance alternative procedures pilot program for debris
removal. The Sandy Recovery Improvement Act of 2013 amended the
Stafford Act to add section 428, which, inter alia, authorized
alternative procedures for debris removal under the Public Assistance
program.\80\ It also authorized FEMA to implement the alternative
procedures through a pilot program. FEMA established a pilot program
that applied to debris removal in all major disasters and emergencies
declared on or after June 28, 2013, and has repeatedly revised the
pilot program since then.\81\ Under normal procedures for emergency
work, only overtime labor is eligible for budgeted employees, while
straight and overtime labor are eligible for unbudgeted employees.\82\
Under the alternative procedures, as currently implemented in FEMA
guidance, applicants can opt to participate in the straight-time
procedure for debris removal, where straight-time labor costs are
eligible for budgeted employees conducting Category A debris removal
activities.\83\ Proposed new paragraph 206.228(b)(2) would incorporate
this policy into FEMA's regulations.
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\80\ See Public Law 113-2, 1102, 127 Stat. 39, 39-42.
\81\ See FEMA, Archives: Public Assistance Alternative
Procedures (PAAP), <a href="https://www.fema.gov/assistance/public/policy-guidance-fact-sheets/public-assistance-alternative-procedures-paap-archives">https://www.fema.gov/assistance/public/policy-guidance-fact-sheets/public-assistance-alternative-procedures-paap-archives</a> (last accessed June 12, 2024).
\82\ 42 U.S.C. 5170b(d)(1)(B); 44 CFR 206.228(a)(2)(iii)
(proposed 206.228(b)(3)).
\83\ See PAPPG at 101. When FEMA first issued guidance on the
alternative procedures, it provided for a variety of alternatives,
including, for example, recycling revenues and an increased Federal
cost share for accelerated removal. See PAAP Alternative Procedures
Pilot Program Guide for Debris Removal, ver. 1 (June 28, 2013),
available at <a href="https://www.fema.gov/sites/default/files/2020-07/fema_PAAP-debris-removal-guide-V1_2013.pdf">https://www.fema.gov/sites/default/files/2020-07/fema_PAAP-debris-removal-guide-V1_2013.pdf</a>. Over the years, as FEMA
revised the guidance, various provisions were removed for being
ineffective or underutilized, and by 2019, when FEMA issued version
7 of the guidance, it only included the straight time force account
labor provision. See PAAP Alternative Procedures Pilot Program Guide
for Debris Removal, ver. 7 (June 28, 2019), available at <a href="https://www.fema.gov/sites/default/files/2020-07/fema_PAAP-debris-removal-guide-V7_6-28-2019.pdf">https://www.fema.gov/sites/default/files/2020-07/fema_PAAP-debris-removal-guide-V7_6-28-2019.pdf</a>. In 2020, this guidance was incorporated into
FEMA's comprehensive Public Assistance program guidance, the PAPPG,
retaining only this straight time force account labor provision. See
PAPPG at 101.
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The Sandy Recovery Improvement Act of 2013 also amended section 403
of the Stafford Act to provide for the eligibility of straight-time for
force account labor for state and local employees conducting emergency
protective measures, where the work is not typically performed by the
employees and it is the type of work that might otherwise be carried
out by contract.\84\ We request comment on whether FEMA should
incorporate that change in its regulations. In addition, we request
comment on a provision to make straight-time labor costs eligible for
permanently employed health care personnel reassigned or redeployed to
perform eligible healthcare work for any major disaster or emergency
declared by the President on or after March 13, 2020, in response to
the COVID-19 pandemic. In light of the widespread impact of the
pandemic and its continued impact on State and local governments, we
seek feedback from the public on whether such a provision would promote
efficient and timely recovery.
---------------------------------------------------------------------------
\84\ See Public Law 113-2, 1108, 127 Stat. 39, 47.
---------------------------------------------------------------------------
Existing paragraph (a)(3) provides that administrative and
management costs for major disasters and emergencies will be paid in
accordance with 44 CFR part 207. We propose removing paragraph (a)(3)
to avoid confusion. Part 207 was first published in 2007 \85\ and
implemented section 324 of the Stafford Act, which authorizes FEMA to
provide funding for management costs incurred in the administration of
the Hazard Mitigation Grant Program and the Public Assistance program.
Section 1215 of DRRA amended section 324 of the Stafford Act to require
FEMA provide funding for management costs at specific percentage rates.
As a result of this amendment, the existing part 207 regulations are no
longer current. FEMA has implemented the DRRA section 1215 amendments
via policy,\86\ but FEMA has not yet issued new regulations. As such,
the reference to part 207 in paragraph (a)(3) may cause confusion, and
we propose to remove it. This removal would not change the current
calculation or funding of management costs and future revisions to part
207 would still apply even without the specific cross-reference here.
This proposed change would help simply to improve clarity.
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\85\ See Management Costs, 72 FR 57875 (Oct. 11, 2007).
\86\ See Hazard Mitigation Grant Program Management Costs
(Interim), FP 104-11-1 (Nov. 14, 2018), available at <a href="https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1215-hazard-mitigation-grant-program-management-costs-interim-policy.pdf">https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1215-hazard-mitigation-grant-program-management-costs-interim-policy.pdf</a>; Public
Assistance Management Costs (Interim), FP 104-11-2 (Nov. 14, 2018),
available at <a href="https://www.fema.gov/sites/default/files/2020-07/pa_management_costs_interim_policy.pdf">https://www.fema.gov/sites/default/files/2020-07/pa_management_costs_interim_policy.pdf</a>.
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E. 44 CFR Part 206, Subpart K--Community Disaster Loans
The Disaster Relief Act of 1974 (Pub. L. 93-288) authorized FEMA's
Community Disaster Loan (CDL) program, which is currently codified in
Section 417 of the Stafford Act, 42 U.S.C. 5184. The CDL program
provides funding for local governments to operate their essential
community services after substantial revenue loss caused by a
disaster.\87\
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\87\ FEMA's website provides more information on CDLs at <a href="https://www.fema.gov/assistance/public/nonstate-nonprofit/community-disaster-loan">https://www.fema.gov/assistance/public/nonstate-nonprofit/community-disaster-loan</a> (last accessed June 12, 2024).
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i. Section 206.361 Loan Program
Section 608 of the Security and Accountability for Every Port Act
of 2006 (SAFE Port Act), Public Law 109-347, 120 Stat. 1884, amended
section 417(b) of the Stafford Act by increasing the amount that
communities may receive in a CDL. It now allows communities to receive
up to 50 percent of their annual operating budgets (not to exceed $5
million) if they suffered a loss of tax or other revenue equal to or
greater than 75 percent of their annual operating budgets for the
fiscal year in which the disaster occurred. We propose to revise
paragraph (b) accordingly.
ii. Section 206.363 Eligibility Criteria
We propose to remove the words ``or emergency'' from paragraph
(b)(1). Section 417(a) of the Stafford Act authorizes CDLs only under
major disaster declarations, and FEMA only makes CDLs in such cases;
however, paragraph (b)(1) erroneously refers to major disasters and
emergencies. This revision would make clear that CDLs are not
authorized for emergency declarations, consistent with the Stafford
Act.
iii. Section 206.364 Loan Application
Consistent with the proposed edit to section 206.361, we propose to
revise paragraph 206.364(d)(1)(ii) to reflect that, per section 608 of
the SAFE Port Act, communities may now receive CDLs of up to 50 percent
of their annual operating budgets (not to exceed $5 million) if they
suffered a loss of tax or other revenue equal to or greater than 75
percent of their annual operating budgets for the fiscal year in which
the disaster occurred. Additionally, we propose a non-substantive
revision to paragraph (c)(2) to clarify that the deadline to submit a
revised loan application is sixty ``calendar days'' from the date of
the initial disapproval.
[[Page 54986]]
IV. Regulatory Analysis
A. Executive Order 12866, as Amended, Regulatory Planning and Review
and Executive Order 13563, Improving Regulation and Regulatory Review,
Executive Order 14094 Modernizing Regulatory Analysis
Executive Orders 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory Review), and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
The Office of Management and Budget (OMB) has designated this
proposed rule a ``significant regulatory action'' under section 3(f) of
Executive Order 12866, as amended by Executive Order 14094, but it is
not significant under section 3(f)(1). Accordingly, the rule has been
reviewed by OMB.
This analysis provides a summary of the potential costs, benefits,
and transfer payments for the Public Assistance program update Notice
of Proposed Rulemaking (NPRM) under the criteria of Executive Orders
12866, 13563, and 14094. The full Regulatory Impact Analysis (RIA) for
this proposed rule is included in the docket for this NPRM.
FEMA proposes to revise its PA and CDL programs regulation to
reflect current statutory authorities, agency practice, and implement
program improvements. The proposed rule would incorporate changes
brought about by amendments to the Stafford Act. FEMA is also proposing
clarifications and corrections to the Public Assistance program. FEMA
previously implemented many of the changes limiting the practical
effects of this rule. The primary purpose of this rule would be to
codify these changes to improve efficiency and consistency of
information for the Programs. The following Table 1 summarizes the
proposed changes of this rule and their impacts as measured against a
no-action baseline (i.e., what the world would look like absent the
rule) and Table 2 summarizes the changes and their impacts as measured
against a pre-statutory baseline (i.e., what the world would look like
without the statutory changes or FEMA's implementing guidance).
Table 1--Summary of the Impacts for the Proposed Changes, No-Action
Baseline, 2020-2029
[2019$]
------------------------------------------------------------------------
Category Summary
------------------------------------------------------------------------
Changes...................... Codify availability of assistance for the
rescue, care, shelter and essential
needs of household pets and service
animals.
Codify expansion of PA eligibility for
certain types of private nonprofits
(PNPs): rehabilitational facilities,
community and performing arts
facilities, broadcasting facilities,
food banks, houses of worship, and
center-based childcare facilities.
Codify expanding CDL percentage to 50
percent under certain conditions while
maintaining $5 million maximum loan cap.
Codify alternative procedures for debris
removal.
Codify the alternate project funding
Federal cost share caps.
Codify consensus-based codes and
standards requirement for PA funded
projects.
Proposed requirement for applicants to
identify any legal considerations for
alternate projects.
Proposed requirement that State and
Tribal Administrative Plans include an
outline for timely closeout of project
and disaster specific staffing plans.
Proposed setting of submission dates for
certain work documentation required for
PA projects.
Non-substantive changes and
clarifications to improve the efficiency
and consistency of the PA program.
Affected Population.......... Applicants eligible to request a Federal
major disaster declaration authorizing
PA, including 56 State and Territorial
governments, 574 Federally recognized
Indian Tribal governments, local
governments, and certain private
nonprofit organizations.
Transfer Payments from FEMA Under a no-action baseline, there are no
to Applicants. transfer payments to report.
Costs (quantitative)......... For the no-action baseline, the total 10-
year costs to Applicants and FEMA
discounted at 3 percent and 7 percent,
respectively, is $251,270 and $216,272.
The annualized cost is $29,457 and
$30,792 at the 3 and 7 percent discount
rates.
Benefits (quantitative)...... FEMA is unable to estimate quantitative
benefits.
Benefits (qualitative)....... Codifying already implemented changes
would improve clarity and align FEMA
regulations with statutory changes and
current practices and procedures.
Identifying legal considerations early in
the applications process would allow for
more complete project application review
for alternate projects.
Adding submission deadlines for work
documentation would increase clarity and
add more time early in the application
process for work documentation.
Keeping administrative plans up-to-date
and providing additional staffing
information about prior disasters would
help recipients be in a better position
to respond to and recover from
emergencies and disasters.
------------------------------------------------------------------------
[[Page 54987]]
Table 2--Summary of the Impacts for Changes, Pre-Statutory Baseline,
2000-2029
[2019$]
------------------------------------------------------------------------
Category Summary
------------------------------------------------------------------------
Changes...................... Amends availability of assistance for the
rescue, care, shelter and essential
needs of household pets and service
animals.
Amends PA eligibility for certain types
of private nonprofits (PNPs):
rehabilitational facilities, community
and performing arts facilities,
broadcasting facilities, food banks,
houses of worship, and center-based
childcare facilities.
Amends CDL percentage to 50 percent under
certain conditions while maintaining $5
million maximum loan cap.
Amends alternative procedures for debris
removal.
Amends the alternate project funding
Federal cost share caps.
Amends consensus-based codes and
standards requirement for PA funded
projects.
Proposed requirement for applicants to
identify any legal considerations for
alternate projects.
Proposed requirement that State and
Tribal Administrative Plans include an
outline for timely closeout of project
and disaster specific staffing plans.
Proposed setting of submission dates for
certain work documentation required for
PA projects.
Non-substantive changes and
clarifications to improve the efficiency
and consistency of the PA program.
Affected Population.......... Applicants eligible to request a Federal
major disaster declaration authorizing
PA, including 56 State and Territorial
governments, 574 Federally recognized
Indian Tribal governments, local
governments, and certain private
nonprofit organizations.
Transfer Payments from FEMA Under a pre-statutory baseline, the net
to Applicants. increase in 10-year total transfer
payments discounted at 3 and 7 percent,
respectively, is $50,762,154 and
$41,796,443. The net increase in
annualized transfer payment is
$5,950,873 at the 3 and 7 percent
discount rates.
Costs (quantitative)......... Under the pre-statutory baseline, the
total 10-year costs to Applicants and
FEMA discounted at 3 percent and 7
percent, respectively, is $70,957,558
and $58,434,274. The annualized cost is
$8,318,390 and $8,319,726 at the 3 and 7
percent discount rates.
Benefits (quantitative)...... FEMA is unable to estimate quantitative
benefits.
Benefits (qualitative)....... Expands PA eligibility for certain PNPs
allowing FEMA to consistently provide
additional assistance to such PNPs to
allow them to recover more quickly from
disaster-damage.
Improving clarity and aligning FEMA
regulations with statutory changes and
current practices and procedures.
Increasing recipient flexibility when
determining whether the community would
benefit more from facility restoration
or an alternate project.
Promotes resiliency and reduces future
damage risk of repaired facilities with
consensus-based codes and standards
requirement for PA funded projects.
Increasing flexibility for debris removal
projects by allowing FEMA to reimburse
base and overtime wages for the
employees of State, Tribal, or local
governments.
Identifying legal considerations early in
the applications process would allow for
more complete project application review
for alternate projects.
Increases clarity and adds more time
early in the application process for
work documentation.
Keeping administrative plans up-to-date
and providing additional staffing
information about prior disasters would
help recipients be in a better position
to respond to and recover from
emergencies and disasters.
------------------------------------------------------------------------
Need for Regulation
FEMA proposes to revise its PA and CDL program regulations to
reflect current statutory authorities and implement program
improvements. The proposed rule would incorporate changes brought about
by amendments to the Stafford Act \88\ to the PA and CDL programs. FEMA
proposes to amend its PA and CDL program regulations to incorporate
these statutory changes and to improve program administration. FEMA is
also proposing clarifications and corrections to improve the efficiency
and consistency of the PA program. FEMA previously implemented many of
the changes through guidance, limiting the practical effects of this
rule. The primary purpose of this rule would be to codify these changes
to improve efficiency and consistency of information for the program.
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\88\ Several Federal statutes have amended sections of the
Stafford Act relating to Public Assistance and Community Disaster
Loans. These include the Post-Katrina Emergency Management Reform
Act of 2006 (PKEMRA), 6 U.S.C. 701 et seq., the Security and
Accountability for Every Port Act of 2006 (SAFE Port Act), Public
Law 109-347, 120 Stat. 1884, the Pets Evacuation and Transportation
Standards Act of 2006 (PETS Act), Public Law 109-308, 120 Stat.
1725, the Sandy Recovery Improvement Act of 2013 (SRIA), Public Law
113-2, 127 Stat. 39, the Emergency Information Improvement Act of
2015, Public Law 114-111, 129 Stat. 2240, the Bipartisan Budget Act
of 2018, Public Law 115-123, 132 Stat. 64, and the FAA
Reauthorization Act of 2018, Division D, Disaster Recovery Reform
Act of 2018 (DRRA), Public Law 115-254, 132 Stat. 3438.
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FEMA addresses the substantive changes in this analysis and
presents how they affect costs, benefits, and transfer payments. The
remaining changes would be non-substantive, meaning they are technical
and include definitional updates and other changes that modernize and
standardize regulations, reduce redundancy, or increase readability.
The non-substantive changes do not have an economic impact. FEMA
included a detailed marginal analysis table in Appendix A of the
separate Regulatory Impact Analysis that summarizes changes listed in
the NPRM and the related impacts.
Affected Population
The proposed rule would affect all potential applicants for Federal
assistance under the PA and CDL programs. Eligible applicants for PA
include 56 State and Territorial governments, 574 Federally recognized
Tribal governments, local governments,
[[Page 54988]]
and certain PNPs.\89\ Based on data from 2010 to 2019, the PA program
as a whole obligated an average amount of $5.6 billion (in 2019
dollars) across 28,721 projects per year. For PNP entities
specifically, the PA program obligated an average amount of $454.7
million (in 2019 dollars) per year across 2,070 projects from 2010 to
2019.
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\89\ A list of the 574 Tribal entities can be found at: Indian
Entities Recognized by and Eligible To Receive Services From the
United States Bureau of Indian Affairs, 88 FR 2112 (Jan. 12, 2023).
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Under the PA program, FEMA awards grants to help communities
quickly respond to and recover from Presidentially-declared emergencies
and major disasters. Generally, the State, Territory, or the District
of Columbia for which the emergency or major disaster is declared is
the recipient. Federally recognized Indian Tribal governments may apply
for Public Assistance directly and be classified as a recipient.\90\
The applicant is a State, Tribal, or Territorial agency, local
government, or eligible private nonprofit organization submitting an
application to the recipient for assistance under the recipient's
grant. Upon award, the recipient notifies the applicant of the award,
and the applicant becomes a subrecipient.
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\90\ FEMA Tribal Policy (Rev. 2). FEMA. <a href="https://www.fema.gov/sites/default/files/documents/fema_tribal-policy.pdf">https://www.fema.gov/sites/default/files/documents/fema_tribal-policy.pdf</a>. Dec. 18, 2020.
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Baseline
Following guidance in OMB Circular A-4, FEMA assessed each impact
of this rule against a pre-statutory and no-action baseline. The pre-
statutory baseline is what the world would be like if the relevant
statute(s) had not been adopted and implemented through guidance.
Accordingly, measuring the proposed rule against a pre-statutory
baseline shows the effects of the proposed rule as compared to FEMA
practice prior to the enactment of the enabling statute or guidance
(i.e., as if FEMA had not already implemented the statutory or policy
changes.) A no-action baseline is an assessment of the way the world
would look absent the proposed action. Accordingly, measuring the
proposed rule against a no-action baseline shows the effects of the
proposed rule as compared to current FEMA practice (i.e., compared to
FEMA guidance, which reflects FEMA's current practice).
The proposed rule under a no-action baseline would have monetary
costs and qualitative benefits. Under a pre-statutory baseline, the
proposed rule would have distributional transfer payments, monetary
costs, opportunity costs, and qualitative benefits. Table 3 shows the
undiscounted annual effects of this proposed rule under a no-action
baseline. Table 4 shows the undiscounted annual effects of this
proposed rule under a pre-statutory baseline.
Table 3--Average Annual Effects of Proposed Rule, Future 10-Year Period, No-Action Baseline
[2019$]
----------------------------------------------------------------------------------------------------------------
Transfers
Year from FEMA
Change No. Change implemented Costs Benefits to
recipients
----------------------------------------------------------------------------------------------------------------
1............... Rehabilitational Facilities... 1988 $0 Qualitative............. $0
2............... Pets and Service Animals...... 2006 0 0
3............... Community and Performing Arts. 2007 0 0
4............... CDL Program................... 2012 0 0
5............... Debris Removal Pilot.......... 2013 0 0
6............... Broadcasting Facilities....... 2015 0 0
7............... Food Banks.................... 2017 0 0
8............... Houses of Worship............. 2017 0 0
9............... Alternate Project Funding..... 2017 0 0
10.............. Center-Based Childcare 2018 0 0
Facilities.
11.............. Codes and Standards........... 2019 0 0
12.............. Alt Projects Legal New 1,434 0
Considerations.
13.............. State and Tribal Admin Plans * New 22,138 0
14.............. Work Documentation............ New 0 0
Familiarization *............. 4,926 0
Annual Increase............... 28,498 0
Annual Decrease............... ............ 0 0
-------------------------------------------------
Total...................... 28,498 Qualitative............. 0
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* For consistency in the table, this cost is displayed as an annual average over ten years. Familiarization cost
would be a one-time cost in the first year of $49,264. Change 13 has a cost of $40,250 in the first year and
$20,125 in subsequent years.
Table 4--Average Annual Effects of Proposed Rule, Future 10-Year Period, Pre-Statutory Baseline
[2019$]
----------------------------------------------------------------------------------------------------------------
Transfers
Change No. Change Year Costs Benefits from FEMA to
implemented recipients
----------------------------------------------------------------------------------------------------------------
1............... Rehabilitational Facilities.. 1988 $10,890 Qualitative............. $1,126,114
2............... Pets and Service Animals..... 2006 3,496 590,464
3............... Community and Performing Arts 2007 1,485 224,514
4............... CDL Program.................. 2012 0 0
5............... Debris Removal Pilot......... 2013 0 -7,373,048
6............... Broadcasting Facilities...... 2015 1,485 344,235
7............... Food Banks................... 2017 0 0
8............... Houses of Worship............ 2017 76,725 2,121,795
9............... Alternate Project Funding.... 2017 0 2,524,814
10.............. Center-Based Childcare 2018 0 0
Facilities.
11.............. Codes and Standards.......... 2019 8,194,853 6,391,985
12.............. Alt Project Legal New 1,434 0
Considerations.
13.............. State and Tribal Admin Plans New 22,138 0
*.
[[Page 54989]]
14.............. Work Documentation........... New 0 0
Familiarization *............ 4,926 0
Annual Increase.............. 8,317,432 13,323,921
Annual Decrease.............. 0 -7,373,048
--------------------------------------------------
Total (Net)............... 8,317,432 Qualitative............. 5,950,873
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* For consistency in the table, these costs are displayed as an annual average over ten years. Familiarization
would be a one-time cost in the first year of $49,216. Change 13 has a cost of $40,250 in the first year and
$20,125 in subsequent years.
Costs
No-Action Baseline
FEMA estimates the total average undiscounted cost for this
proposed rule, as measured against a no-action baseline, to be $28,498
per year over a future ten-year period. Changes 1 through 11 would not
result in any additional costs, as measured against the no-action
baseline, because FEMA has already implemented them through guidance
and proposes to codify these changes through this rule. The proposed
rule under a no-action baseline would result in additional costs due to
Change 12: Alternate Project Legal Considerations (recipient costs of
$1,434) and Change 13: State and Tribal Admin Plans (recipient costs of
$40,250 in the first year and $20,125 in the subsequent years). Changes
12 and 13, and their estimated impacts, are described in more detail in
the Pre-Statutory Baseline section below.
The proposed regulation would also result in familiarization costs.
FEMA assumed a State Government Chief Executive, a senior level
government official, or an individual in an equivalent occupation would
read the proposed regulations to understand the changes. FEMA obtained
the wage rate of $52.83 for a State Government Chief Executive from BLS
OES data.\91\ To account for employee benefits, FEMA multiplied the
base hourly wage rate by a load factor of 1.6 to find a loaded hourly
wage rate of $84.53 ($52.83 hourly mean wage for Chief Executives x 1.6
wage rate multiplier).\92\ FEMA used 93 respondents (56 States
territories + 37 Tribes acting as recipients) \93\ in the estimate as
this is the level from which a PA disaster declaration request is made.
FEMA assumed there would be 112 Chief Executives that review the
proposed changes, two from each State. FEMA also assumed there would be
74 Chief Executives that review the proposed changes, two from each
Tribe. This means that there are a total of 186 (112 + 74) Chief
Executives. FEMA assumed the States regularly update their emergency
response networks and local emergency management divisions on changes
in the field and the States would disseminate the regulatory changes
through each State's respective process. As of the time of this
analysis, there are approximately 47,000 words in the NPRM document for
this rule. Although FEMA could not identify formal studies on the
subject, some reports suggest that, on average, a person reads about
250 words per minute, though there can be variation according to
individual attributes and type of material being read.\94\ Based on the
word count at the time of this analysis, it would thus take about
3.1333 (47,000 words / 250 words per minute / 60 minutes per hour)
hours to read the rule. At the burdened wage for Chief Executives, this
would be about $264.86 ($84.53 x 3.1333 hours) per review. The total
familiarization cost would be about $49,264 (186 respondents x
$264.86), which would potentially be incurred during the first year the
rule is effective.
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\91\ BLS OES, May 2019, NAICS code 999200, State Government,
Standard Occupational Code 11-1011 for Chief Executives, mean wage.
<a href="https://www.bls.gov/oes/2019/may/naics4_999200.htm">https://www.bls.gov/oes/2019/may/naics4_999200.htm</a>.
\92\ Fully loaded wage rates include other benefits, we are
using a factor of 1.6 to calculate fully loaded wage rates. The
unloaded wage rate does not account for costs to the employer for
benefits, such as paid leave, health insurance, retirement, and
other benefits. Bureau of Labor Statistics. Employer Costs for
Employee Compensation, Table 1. ``Employer costs For Employee
Compensation by ownership, March 2019.'' <a href="http://www.bls.gov/news.release/archives/ecec_06182019.pdf">http://www.bls.gov/news.release/archives/ecec_06182019.pdf</a>. June 18, 2019.
The wage multiplier is calculated by dividing total compensation
for State and local government workers of $50.89 by Wages and
salaries for State and local government workers of $31.75 per hour
yielding a benefits multiplier of approximately 1.6 ($50.89 /
$31.75).
\93\ 56 States includes 50 states and 6 territories: the
District of Columbia, and territories including American Samoa,
Guam, Northern Mariana Islands, Puerto Rico, and U.S. Virgin
Islands. FEMA's annual estimate of 37 Tribes was based on the number
of Tribes acting as recipients historically.
\94\ The benchmark of 250 words per minute applies to most
adults, according to several reports. See, e.g., <a href="http://HealthGuidance.org">HealthGuidance.org</a>,
What Is the Average Reading Speed and the Best Rate of Reading?,
<a href="https://www.healthguidance.org/entry/13263/1/what-is-the-average-reading-speed-and-the-best-rate-of-reading.html">https://www.healthguidance.org/entry/13263/1/what-is-the-average-reading-speed-and-the-best-rate-of-reading.html</a>, (last accessed June
12, 2024); ExecuRead, Speed Reading Facts, <a href="https://secure.execuread.com/facts/">https://secure.execuread.com/facts/</a>, (last accessed June 12, 2024). It is
noted that the reading of technical material can be slower than
other types of documents. Because this document is technical in some
ways, the actual review time might be higher, thus resulting in
higher familiarization costs than reported herein.
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Under a no-action baseline, FEMA estimates the total annual cost
undiscounted would be $90,948 ($1,434 + $40,250 + $49,264) for only the
first year. The first year includes the calculations for
familiarization costs discussed in the previous paragraph as well as
costs due to Change 12: Alternate Project Legal Considerations and
Change 13: State and Tribal Admin Plans. Then the total annual cost
undiscounted would be $21,559 ($1,434 + $20,125) for each year after
that. The discounted total net 10-year cost at 3 percent and 7 percent,
respectively, would be $251,270 and $216,272. The annualized cost would
be $29,457 and $30,792 at the 3 and 7 percent discount rates (Table 5).
[[Page 54990]]
Table 5--Summary of No-Action Baseline Costs, Future 10-Year Period
[2019$]
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[…truncated; see source link]Indexed from Federal Register on July 2, 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.