Individual Assistance Program Equity

Federal RegisterJan 22, 2024

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 206

[Docket ID: FEMA-2023-0003]

RIN 1660-AB07

Individual Assistance Program Equity

AGENCY:

Federal Emergency Management Agency, DHS.

ACTION:

Interim final rule.

SUMMARY:

DATES:

Effective Date:

This rule is effective March 22, 2024.

Applicability Date:

This rule applies to Emergencies and Major Disasters declared on or after March 22, 2024.

Comment Date:

Comments must be received no later than July 22, 2024.

ADDRESSES:

You may submit comments, identified by Docket ID: FEMA-2023-0003, via the Federal eRulemaking Portal:

http://www.regulations.gov.

Follow the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT:

Kristina McAlister, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472. Phone: 866-826-8751 or email:

FEMA-IHP-Policy@fema.dhs.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

III. Background

A. Individual Assistance

B. Impacts of Climate Change on Disaster Assistance

C. Equity in Individual Assistance

1. Income Project

2. Equity RFI—IA Program Equity Responses to Comments

D. Changes in Policy Positions To Increase Equity in IHP

1. Insurance Proceeds

2. Requirement To Apply for an SBA Loan Prior to Receipt of ONA

3. Home Repair Pre-Existing Conditions

4. Serious Needs and Displacement Assistance

IV. Discussion of the Interim Final Rule

A. Section 206.101—Temporary Housing Assistance for Emergencies and Major Disasters Declared on or Before October 14, 2002

B. Section 206.110—Federal Assistance to Individuals and Households

C. Section 206.111—Definitions

D. Section 206.112—Registration Period

E. Section 206.113—Eligibility Factors

F. Section 206.114—Criteria for Continued or Additional Assistance

G. Section 206.115—Appeals

H. Section 206.117—Housing Assistance

I. Section 206.118—Disposal of Housing Units

J. Section 206.119—Financial Assistance To Address Other Needs

K. Section 206.131—Individual and Family Grant Program for Major Disasters Declared on or Before October 14, 2002

L. Section 206.191—Duplication of Benefits

V. Regulatory Analyses

A. Administrative Procedure Act

B. Executive Order 12866, Regulatory Planning and Review; Executive Order 13563, Improving Regulation and Regulatory Review; and Executive Order 14094, Modernizing Regulatory Review

1. Need for Regulation

2. Affected Population

3. Baseline

4. Transfer Payments

5. Costs

6. Cost Savings

7. Total Net Costs

8. Benefits

9. Circular A-4 Accounting Statement, No-Action Baseline (2020$) Table

10. Circular A-4 Accounting Statement, Pre-Guidance Baseline (2020$) Table

11. Marginal Analysis Table

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. National Environmental Policy Act of 1969 (NEPA)

F. Paperwork Reduction Act of 1995

G. Privacy Act/E-Government Act of 2002

H. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

I. Executive Order 13132, Federalism

J. Executive Order 12630, Taking of Private Property

K. Executive Order 12898, Environmental Justice and Executive Order 14096, Revitalizing Our Nation's Commitment to Environmental Justice for All

L. Executive Order 12988, Civil Justice Reform

M. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

N. Executive Order 11988, Floodplain Management

O. Executive Order 11990, Protection of Wetlands

P. National Historic Preservation Act

Q. Endangered Species Act

R. Congressional Review of Agency Rulemaking

Table of Abbreviations

ADA—Americans with Disabilities Act

APA—Administrative Procedure Act

CATEX—Categorical Exclusions

CDBG-DR—Community Development Block Grant Disaster Recovery Program

CEQ—Council on Environmental Quality

CFR—Code of Federal Regulations

CNA—Critical Needs Assistance

CPI-U—Consumer Price Index for All Urban Consumers

CRA—Congressional Review of Agency Rulemaking Act

CTHA—Continued Temporary Housing Assistance

DCM—Disaster Case Management

DHAP—Disaster Housing Assistance Program

DHS—Department of Homeland Security

DHS-OIG—Department of Homeland Security's Office of Inspector General

DMA2K—Disaster Mitigation Act of 2000

DRC—Disaster Recovery Center

DRRA—Disaster Recovery Reform Act of 2018

EA—Environmental Assessment

EDW—Enterprise Data Warehouse

EIS—Environmental Impact Statement

ESA—Endangered Species Act

FCO—Federal Coordinating Officer

FDAA—Federal Disaster Assistance Administration

FEMA—Federal Emergency Management Agency

FIT—Failed Income Test

FmHA—Farmers Home Administration

FMR—Fair Market Rent

FVL—FEMA Verified Loss

FY—Fiscal Year

GAO—Government Accountability Office

GFIP—Group Flood Insurance Policy

GSA—U.S. General Services Administration

HA—Housing Assistance

HUD—U.S. Department of Housing and Urban Development

IA—Individual Assistance

IAPPG—Individual Assistance Program and Policy Guide

IFG—Individual and Family Grant Program

IFR—Interim Final Rule

IHP—Individuals and Households Program

IRS—Internal Revenue Service

JFO—Joint Field Office

LEP—Limited English Proficiency/Limited English Proficient

LER—Lodging Expense Reimbursement

LI—Lower Income

MLR—Multifamily Lease and Repair

NEMIS—National Emergency Management Information System

NEPA—National Environmental Policy Act of 1969

NFIA—National Flood Insurance Act of 1968, as Amended

NFIP—National Flood Insurance Program

NHPA—National Historic Preservation Act

NPRM—Notice of Proposed Rulemaking

OIG—Office of Inspector General

OMB—Office of Management and Budget

ONA—Other Needs Assistance

PHC—Permanent Housing Construction

PHP—Permanent Housing Plan

PIA—Privacy Impact Assessment

PKEMRA—Post-Katrina Emergency Management Reform Act of 2006

RA—Regional Administrator

RA—Rental Assistance

RFA—Regulatory Flexibility Act of 1980

RFI—Request for Information

RIA—Regulatory Impact Analysis

RPFVL—Real Property FEMA Verified Loss

SBA—Small Business Administration

SFHA—Special Flood Hazard Area

SRIA—Sandy Recovery Improvement Act of 2013

Stafford Act—Robert T. Stafford Disaster Relief and Emergency Assistance Act, as Amended

STT—State, Tribal, or Territorial

Treasury—U.S. Department of Treasury

TSA—Transitional Sheltering Assistance

USGCRP—U.S. Global Change Research Program

Welfare Reform Act—Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996

I. Public Participation

We encourage you to participate in this rulemaking by submitting comments and related materials. We will consider all comments and materials received during the comment period.

If you submit a comment, identify the agency name and the Docket ID for this rulemaking, indicate the specific section of this document to which each comment applies, and give the reason for each comment. All submissions will be posted, without change, to the Federal e-Rulemaking Portal at

www.regulations.gov

and will include any personal information you provide. Therefore, submitting this information makes it public. For more about privacy and the docket, visit

https://www.regulations.gov/document?D=DHS-2018-0029-0001.

Viewing comments and documents:

For access to the docket to read background documents or comments received, go to the Federal e-Rulemaking Portal at

http://www.regulations.gov.

II. Executive Summary

The Federal Emergency Management Agency (FEMA) is publishing this interim final rule (IFR) amending its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. Specifically, the IFR increases eligibility for home repair assistance by amending the definitions and application of the terms safe, sanitary, and functional, allowing assistance for certain accessibility-related items, and amending its approach to evaluating insurance proceeds; allows for the re-opening of the applicant registration period when the President adds new counties to the major disaster declaration; simplifies the documentation requirements for continued temporary housing assistance; simplifies the appeals process; simplifies the process to request approval for a late registration; removes the requirement to apply for a Small Business Administration (SBA) loan as a condition of eligibility for Other Needs Assistance (ONA); and establishes additional eligible assistance under ONA for serious needs, displacement, disaster-damaged computing devices and essential tools for self-employed individuals. FEMA also makes revisions to reflect changes to statutory authority that have not yet been implemented in regulation, to include provisions for utility and security deposit payments, lease and repair of multifamily rental housing, child care assistance, maximum assistance limits, and waiver authority.

III. Background

A. Individual Assistance

FEMA is responsible for administering and coordinating the Federal Government response to Presidentially declared disasters pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (Stafford Act), Public Law 93-288, 42 U.S.C. 5121

et seq.

When a catastrophe occurs in a State or affects the members of a Tribal community, the State's Governor or Tribal Chief Executive may request a Presidential declaration of a major disaster pursuant to Section 401 of the Stafford Act. 42 U.S.C. 5170(a), (b); 44 CFR 206.36(a). Such a request must be based on a finding that the disaster is of such severity and magnitude that an effective response is beyond the capabilities of the State or Tribal government and the affected local governments and that Federal assistance is necessary. 42 U.S.C. 5170. The President's declaration of a disaster will designate the areas within a State, or for an Indian Tribal government, where Federal assistance may be made available (including local governments such as counties, parishes, or Tribal lands, if appropriate) and identify the types of assistance that are authorized under the declaration, 44 CFR 206.40(a), although other types may be authorized later, 44 CFR 206.40(c). A major disaster declaration may authorize all, or only particular types of, supplemental Federal assistance requested by the Governor or Tribal Chief Executive. 44 CFR 206.40(a).

One of those types is “Federal Assistance to Individuals and Households” governed by section 408 of the Stafford Act, which authorizes FEMA to provide financial assistance and direct services to individuals and households who, as a direct result of a major disaster, have necessary expenses and serious needs in cases in which the individuals and households are unable to meet such expenses or needs through other means. 42 U.S.C. 5174. FEMA refers to this assistance as the Individuals and Households Program (IHP).

Section 408 categorizes IHP into two provisions of assistance: Housing Assistance (HA) and ONA. Housing Assistance is available for individuals and households who are displaced from their pre-disaster primary residences

or whose pre-disaster residences are rendered uninhabitable or, for individuals with disabilities, inaccessible or uninhabitable, as a result of damage caused by a major disaster. 42 U.S.C. 5174(b). FEMA may provide those individuals: (1) temporary housing assistance in the form of financial assistance (funds provided to an individual to reimburse for hotels, motels, or other short-term lodging (referred to as Lodging Expense Reimbursement, or LER) or to rent alternate housing accommodations while the individual is displaced from their primary residence) or direct assistance (FEMA may provide the individual temporary housing units or FEMA may lease and repair multifamily rental properties (referred to as Multifamily Lease and Repair, or MLR) for the purpose of housing individuals); (2) financial assistance to repair owner-occupied private residences, utilities, and residential infrastructure damaged by a major disaster to a safe and sanitary living or functioning condition (referred to as home repair assistance); (3) financial assistance to replace owner-occupied private residences damaged by a major disaster (referred to as home replacement assistance); and (4) in rare circumstances, financial or direct assistance to construct permanent or semi-permanent housing (referred to as Permanent Housing Construction, or PHC). 42 U.S.C. 5174(c).

Per 44 CFR 206.111 “primary residence” means the dwelling where the applicant normally lives, during the major portion of the calendar year; or the dwelling that is required because of proximity to employment, including agricultural activities, that provide 50 percent of the household's income. Home Repair Assistance and Home Replacement Assistance are not available for non-traditional forms of housing that do not have structural elements to assess and calculate a repair or replacement award

(e.g.,

tents). By policy, FEMA defines non-traditional housing as a form of dwelling void of structural floor, structural walls, and structural roof. See page 62 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

ONA is financial assistance FEMA makes available to individuals and households adversely affected by a disaster to address their necessary expenses and serious needs.

FEMA

awards two types of ONA: SBA-dependent, which provides assistance for personal property, transportation, and Group Flood Insurance Policies (GFIPs); and non SBA-dependent ONA, which provides funeral assistance, medical and dental assistance, childcare assistance, moving and storage assistance, critical needs assistance, cleaning and sanitizing assistance as well as assistance for miscellaneous items.

To obtain SBA-dependent ONA, FEMA currently requires individuals above a certain income level, as identified in SBA-provided income test tables, to apply for a disaster loan from SBA; SBA-dependent ONA includes Personal Property Assistance, Transportation Assistance, and GFIP.

If those individuals were denied for a loan by the SBA or the amount received did not satisfy their total necessary expenses, FEMA could provide them with assistance for SBA-dependent types of ONA. Prior to this rule's revisions, these provisions were located in 44 CFR 206.119(a). FEMA did not require application to the SBA for individuals below the relevant income threshold or for other types of ONA.

42 U.S.C. 5174(e).

See page 146 of FEMA Policy (FP) 104-009-03, Individual Assistance Program and Policy Guide, Version 1.1 (IAPPG 1.1).

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

Applicants whose pre-disaster home was located in a Special Flood Hazard Area and received assistance for insurable flood damaged real or personal property may be considered for a FEMA-purchased GFIP certificate, which provides 3 years of flood insurance coverage.

The SBA provides FEMA with the relevant income threshold information on a yearly basis. The income threshold used is determined by the individual's household situation and accounts for where the individual resides and the number of dependents living in the household.

As detailed further below, section 1212 of the Disaster Recovery Reform Act of 2018, Public Law 115-254, 132 Stat. 3448 (Oct. 5, 2018) amended Section 408(h) to establish separate caps for each category of assistance. Currently, the maximum amount of IHP HA and ONA financial assistance for any single emergency or major disaster is $42,500.

These financial caps do not apply to the provision of financial assistance to rent alternate housing accommodations or necessary expenses for individuals with disabilities. 42 U.S.C. 5174(h).

The Federal cost-share under IA is 100 percent for HA and 75 percent for ONA (with the State responsible for the 25 percent non-Federal share). 42 U.S.C. 5174(g).

See 88 FR 72520, Oct. 20, 2023. Section 408 caps the amount of assistance individuals may receive under IA for HA to $25,000 and for ONA to $25,000. These caps are adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers (CPI-U) published by the Department of Labor.

DRRA amended this section to exclude financial housing assistance and necessary expenses for individuals with disabilities from those caps.

FEMA may only provide housing assistance for a period not to exceed 18 months from the date of the major disaster declaration, although it may extend this period of assistance if it determines that due to extraordinary circumstances an extension would be in the public interest. 42 U.S.C. 5174(c)(1)(B)(iii); 44 CFR 206.110(e). FEMA is required to ensure it has systems in place to allow it to verify the identity and address of recipients for assistance, minimize the risk of making duplicate or fraudulent payments, collect any duplicate payments, provide instructions to individuals detailing the proper use of assistance, and conduct an expedited and simplified review and appeal process for individuals denied assistance. 42 U.S.C. 5174(i).

FEMA is required to ensure that the disaster assistance it provides is not a duplication of benefits with any other program or from insurance or any other source. 42 U.S.C. 5155(a). FEMA has set forth a regulatory delivery sequence at 44 CFR 206.191(d) which was further clarified in its Individual Assistance Program and Policy Guide (IAPPG)

to establish the order in which disaster relief agencies and organizations provide assistance to disaster survivors and ensure its assistance does not result in a prohibited duplication of benefits. Currently, the delivery sequence is, in order of delivery: (i) Volunteer Agencies and Mass Care; (ii) Insurance; (iii) FEMA Housing Assistance;

(iv) FEMA/State/Territory/Tribal Government ONA;

(v) SBA Income Evaluation (Repayment Capability) which will either result in an SBA referral or FEMA/State ONA;

and (vi) Unmet Needs—Volunteer Agencies.

See page 10 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

This includes both financial and direct Housing Assistance. For financial, this encompasses Lodging Expense Reimbursement, Rental Assistance, Repair Assistance, and Replacement Assistance, and for direct, this includes Multifamily Lease and Repair, Transportable Temporary Housing Units, Direct Lease, and Permanent Housing Construction.

This includes the following types of non-SBA-dependent ONA: Funeral Assistance, Medical and Dental Assistance, Child Care Assistance, Moving and Storage Assistance, Assistance for Miscellaneous Items, and, under this rule, Critical Needs Assistance and Clean and Sanitize Assistance.

SBA-dependent ONA includes Personal Property Assistance, Transportation Assistance, and Group Flood Insurance Policy.

See page 10 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

B. Impacts of Climate Change on Disaster Assistance

Climate change—changes in the average or variability of weather conditions that persist over long time scales (

e.g.,

multiple decades or longer)

—and related global changes can threaten human health; the economy; the built environment; and the natural world, including wildlife, plants, and the ecosystems upon which they rely.

Many scientists, governments, and organizations have researched climate change, documented its experienced effects, projected potential effects, and undertaken activities to respond to it.

Scientists have demonstrated the effects of climate change are already realized around the world, and they project that climate changes will intensify in future decades.

C.R.S. Rep 46694, Climate Change Adaptation: Department of the Interior, at 1 (2021) available at

https://crsreports.congress.gov/product/pdf/R/R46694;

for example, see definitions of climate and climate change at U.S. Global Change Research Program (USGCRP), “Glossary,” at

https://www.globalchange.gov/climate-change/glossary,

and Intergovernmental Panel on Climate Change, “Definition of Terms Used Within the Data Distribution Centre: Glossary,” at

https://www.ipcc-data.org/guidelines/pages/glossary/glossary_c.html.

This report does not address the causes of multidecadal climate change. For a discussion of climate change science, see CRS Report R43229, Climate Change Science: Key Points, by Jane A. Leggett. For additional background on climate change, see CRS In Focus IF11446, Weather and Climate Change: What's the Difference? by Jane A. Leggett.

Alexa Jay

et al.,

“Overview,” in Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment, vol. II, eds. David Reidmiller

et al.

(Washington, DC: U.S. USGCRP, 2018), pp. 33-71 (hereinafter, assessment cited as Reidmiller

et al.,

Impacts, Risks, and Adaptation).

For example, the USGCRP is a Federal program mandated by Congress through P.L. 101-606 with the stated purpose of developing and coordinating “a comprehensive and integrated United States research program which will assist the Nation and the world to understand, assess, predict, and respond to human-induced and natural processes of global change.” For more information, see USGCRP, “About USCGRP,” at

https://www.globalchange.gov/about.

The IPCC “is the United Nations body for assessing the science related to climate change” (IPCC, “About the IPCC,” at

https://www.ipcc.ch/about/

For example, see IPCC, “Synthesis Report of the IPCC Sixth Assessment Report (AR6), Summary for Policymakers” at 4-6, 12-13 (Mar. 20, 2023),

https://www.ipcc.ch/report/sixth-assessment-report-cycle/;

Economic Report of the President at 275, 280, 282-84 (March 2023),

https://www.whitehouse.gov/wp-content/uploads/2023/03/ERP-2023.pdf.

The issue of climate change impacts and implementing solutions is incredibly challenging and complex. Climate change poses a direct threat to the security of our Nation in the form of increasingly severe and unpredictable storms, flooding, and wildfires that disproportionately impact some of

America's most vulnerable communities.

Climate change disasters, such as heatwaves, can take place over longer time scales or broader geographic areas than other more acute disruptions. Other impacts, such as “nuisance flooding” are less intense but more chronic. This requires us to think differently about emergency response.

Fourth National Climate Assessment, Volume II: Impacts, Risks, and Adaptation in the United States,

https://nca2018.globalchange.gov/#sf-2.

DHS Strategic Framework for Addressing Climate Change (Oct. 21, 2021),

https://www.dhs.gov/sites/default/files/publications/dhs_strategic_framework_10.20.21_final_508.pdf.

The Nation is no stranger to historic and costly hurricane seasons. The 2017 Atlantic hurricane season was one of the most active in U.S. history; between April and November, there were 17 named storms, with 10 becoming hurricanes.

As of October 9, 2017, FEMA received more applications for the Individuals and Households Program than in hurricanes Katrina, Rita, Wilma and Sandy combined. By November 30, 2017, FEMA registered more than 4.7 million households for the Individuals and Households Program.

These hurricanes were accompanied by devastating wildfires in California that burned for months. The President's 2023 Economic Report

recounts that Hurricane Ian struck Florida in September 2022, causing a coastal storm surge of up to 18 feet and widespread inland flooding; it will end up being one of the costliest storms on record, with losses to residential and commercial property estimated at between $36 billion and $62 billion.

Climate change has elevated the need for the delivery of efficient disaster services and increased the need for IHP assistance, particularly for socially vulnerable populations, which are disproportionately impacted.

In response and in a step towards equity, the regulatory changes in this rule seek to add efficiency in the delivery of assistance to survivors by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. For example, the changes seek to streamline documentation requirements, thus easing entry into the Individuals and Households Program. Each regulatory change to follow is influenced by the growing emergency needs of citizens across the Nation, which has meant the trend of growing FEMA participation and responsibility for response.

2017 Hurricane Seasons FEMA After-Action Report, at v (July 12, 2018), 2017 Hurricane Season FEMA After-Action Report.

2017 Hurricane Seasons FEMA After-Action Report, at 39 (July 12, 2018), 2017 Hurricane Season FEMA After-Action Report.

See Economic Report of the President at 282 (March 2023),

https://www.whitehouse.gov/wp-content/uploads/2023/03/ERP-2023.pdf.

CoreLogic, “CoreLogic Analysis Shows Final Estimated Insured and Uninsured Damages for Hurricane Ian to Be Between $41 Billion and $70 Billion” (2022),

www.corelogic.com/press-releases/corelogic-analysis-shows-final-estimated-insured-and-uninsured-damages-for-hurricane-ian-to-be-between-41-billion-and-70-billion/.

Paquette, D., and M. Kornfield, “Ian Is Florida's Deadliest Hurricane Since 1935; Most Victims Drowned” (Oct. 5, 2022),

https://www.washingtonpost.com/nation/2022/10/05/hurricane-ian-florida-victims/.

See,

e.g.,

EPA, Climate Change and Social Vulnerability in the United States: A Focus on Six Impacts, (September 2021),

https://www.epa.gov/cira/social-vulnerability-report.

The EPA's report analyzed four socially vulnerable groups: low income, minority, no high school diploma, and 65 or older. See

Id.

at 4, Table ES.1—Socially Vulnerable Groups Analyzed in this Report.

Presently coastal areas globally face land loss, repeat flooding, and storm surges, affecting coastal populations.

Extreme weather events are increasing in intensity as well as frequency.

Sustained changes in climate have exacerbated the physical risks and threats coastal communities are exposed to every day.

Maldonado, J., Wang, I.F.C., Eningowuk, F.

et al.

Addressing the challenges of climate-driven community-led resettlement and site expansion: knowledge sharing, storytelling, healing, and collaborative coalition building,

J Environ Stud Sci

11, 294-304 (2021),

https://doi.org/10.1007/s13412-021-00695-0.

Maldonado, J., Wang, I.F.C., Eningowuk, F.

et al,

Addressing the challenges of climate-driven. community-led resettlement and site expansion: knowledge sharing, storytelling, healing, and collaborative coalition building,

J Environ Stud Sci

11, 294-304 (2021),

https://doi.org/10.1007/s13412-021-00695-0.

As climate change threatens to bring more extreme events like increased floods, sea level rise, and intensifying droughts and wildfires, is our responsibility to better prepare and support communities, families, and businesses before, during, and after disasters. Here, in light of the increasing climate-related disasters facing the Nation, FEMA issues amendments to the Individuals and Households Program to ensure that it meets the increasing need for assistance to individuals and families recovering from disasters.

C. Equity in Individual Assistance

1. Income Project

There have been numerous assertions over the years that IHP disproportionately benefits higher income households over lower income households.

In 2019, FEMA undertook an analysis to determine if this was true (Income Project).

FEMA analyzed 5 years of disaster data (January 1, 2014-December 31, 2018) which comprised 4.8 million registrations.

See The Hill,

Disaster Housing Recovery: Time for Congress to Act

(November, 26, 2018) (“FEMA consistently creates barriers that prevent low-income people from receiving assistance . . . FEMA is unwilling and incapable of handling the housing needs of low-income disaster survivors,”)

https://thehill.com/opinion/civil-rights/418175-disaster-housing-recovery-time-for-congress-to-act

(last visited Nov. 29, 2021); Texas Housers,

Low-income Households Disproportionately Denied by FEMA is a Sign of a System that is Failing the Most Vulnerable

(November 30, 2018) (“Homeowner households with fewer financial resources were more likely to be denied FEMA assistance after Harvey,”)

https://texashousers.org/2018/11/30/low-income-households-disproportionately-denied-by-fema-is-a-sign-of-a-system-that-is-failing-the-most-vulnerable/

(last visited Nov. 29, 2021); NPR,

How Federal Disaster Money Favors the Rich

(March 5, 2019) (“Disasters, and the federal aid that follows, disproportionately benefit wealthier Americans”)

https://www.npr.org/2019/03/05/688786177/how-federal-disaster-money-favors-the-rich

(last visited Nov. 29, 2021).

FEMA,

Individuals & Households Program Survivor Income Analysis

(2019) and

Survivor Income Analysis: Phase 2—Drivers of variance in IHP assistance across income groups

(2019). See Supporting & Related Material tab on

www.regulations.gov

under Docket ID: FEMA-2023-0003.

In July 2019, FEMA completed Phase 1 of the project.

Phase 1 results showed that of the FEMA registrants during that time period, 62 percent were “lower income,” 10 percent were “middle income,” and 28 percent were “higher income.”

FEMA concluded generally that lower income households were more likely to receive an award, or, in other words, have a higher award

rate

under the Individuals and Households Program, but that the average award

amount

was lower for those households than for higher income households.

For Phase 1 of the Income Project, the average repair/replacement award size for lower income owners is $2,165 while the average award size for higher income owners is $4,139. For Personal Property Assistance, the average award size for lower income owners is $819, while the average award size for higher income owners $2,093. For Personal Property Assistance, the average award size for lower income renters is $900, while the average award size for higher income renters is $2,110.

FEMA,

Individuals & Households Program Survivor Income Analysis

(2019) and

Survivor Income Analysis: Phase 2—Drivers of variance in IHP assistance across income groups

(2019). See Supporting & Related Material tab on

www.regulations.gov

under Docket ID: FEMA-2023-0003. FEMA defines Lower income as a combination of low, very low, and extremely low-income. As defined by HUD, Extremely Low income means Income at or below the national poverty threshold or 30% of the Area Median Income, whichever is less; Very Low income means Income between >30% and 50% of AMI; and Low Income means Income between >50% and 80% of AMI. (See Page 5 of the Income Analysis).

The data proved to be more varied at the assistance type level. FEMA compared the rate of applicants referred to IHP for further consideration,

award

rates, and award amounts of lower income households to higher income households for home repair/replacement financial assistance, rental housing financial assistance, personal property financial assistance, direct housing assistance, and transitional shelter assistance.

The term “referred to IHP” reflects terminology FEMA uses in the implementation of IHP.

Applicants fill out registrations and their answers will determine some threshold eligibility factors and what types of assistance they may need or what unmet needs they have. At that point, the eligible applications are routed to the FEMA employees who process each type of assistance to make further eligibility determinations.

The data received indicates that lower income households were referred for assistance at a higher

rate

than were higher income households for all types of assistance except direct housing but were awarded assistance in lower

amounts

for repair and replacement assistance and personal property. Specifically, FEMA found the following:

This represents “10 times” or “10× more likely” when it comes to personal property referrals for lower income applicants.

The original analysis did not include a specific breakdown for Transitional Sheltering Assistance (TSA) referral rates, but FEMA believes the rate to be in line with referral rates for non-lower-income TSA applicants.

ER22JA24.000

In November 2019, FEMA completed Phase 2 of the project in which it focused on additional analysis of the data to determine the cause of the variance in results between lower and higher income applicants. FEMA found that: (1) higher income households were less likely to receive an award for home repair/replacement assistance because they were more likely to have insurance which covered their losses; (2) lower income households received lower award amounts for home repair/replacement because they had lower Real Property FEMA Verified Loss (RPFVL),

smaller homes, and were more likely to live in mobile homes which may be smaller or less expensive than non-mobile homes; (3) lower income households were less likely to receive an award for rental assistance because they were more likely to be found ineligible as a result of their home being habitable than higher income households; (4) lower income households were less likely to be eligible for personal property assistance, but the results were inconclusive and FEMA could not identify the primary driver of the difference; (5) lower income households were likely to have a lower award amount for personal property assistance but FEMA could not account for the reason why, although home size might be a factor; and (6) using a RPFVL per square foot threshold instead of a flat RPFVL threshold for direct housing would increase the proportion of lower income owners and decrease the proportion of higher income owners who qualified for direct housing.

RPFVL is the total dollar amount of IHP eligible disaster-caused damage to real property as verified by FEMA.

For more information on FEMA's Direct Housing Assistance see page 93 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

2. Equity RFI—IA Program Equity Responses to Comments

On January 20, 2021, President Joseph R. Biden signed Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities

Through the Federal Government.”

On January 20, 2021, President Joseph R. Biden signed Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis.”

On January 27, 2021, President Joseph R. Biden signed Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad.”

And, on February 16, 2023, President Joseph R. Biden signed Executive Order 14091, “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”

Section 2.b. of Executive Order 13985 defines “underserved communities” as populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life, as exemplified by the list in the definition of “equity.” Section 10.a. of Executive Order 14091 defines “equity” to mean the consistent and systematic treatment of all individuals in a fair, just, and impartial manner, including individuals who belong to communities that often have been denied such treatment, such as Black, Latino, Indigenous and Native American, Asian American, Native Hawaiian, and Pacific Islander persons and other persons of color; members of religious minorities; women and girls; LGBTQI+ persons; persons with disabilities; persons who live in rural areas; persons who live in United States Territories; persons otherwise adversely affected by persistent poverty or inequality; and individuals who belong to multiple such communities.

E.O. 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” 86 FR 7009, Jan. 25, 2021.

E.O. 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” 86 FR 7037, Jan. 25, 2021.

E.O. 14008, “Tackling the Climate Crisis at Home and Abroad,” 86 FR 7619, Feb. 1, 2021.

E.O. 14091, “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”88 FR 10825, Feb. 22, 2023.

Consistent with those Executive Orders and to gain additional information on the issues identified in the 2019 income project, on April 22, 2021, FEMA published a Request for Information (RFI) on FEMA Programs, Regulations, and Policies.

FEMA sought public input on its programs, regulations, collections of information, and policies for the agency to ensure that its programs, regulations, and policies contain necessary, properly tailored, and up-to-date requirements that effectively achieve FEMA's mission in a manner that furthers the goals of advancing equity for all, including those in underserved communities; bolstering resilience from the impacts of climate change, particularly for those disproportionately impacted by climate change; and environmental justice.

86 FR 21325, Apr. 22, 2021.

FEMA held public meetings and extended the comment period on the RFI to ensure all interested parties had sufficient opportunity to provide comments on FEMA's programs.

All relevant comments received in response to the request for information, including those received during the public

meetings, have been posted to the public rulemaking docket on the Federal eRulemaking portal at

https://www.regulations.gov/document/FEMA-2021-0011-0001/comment.

See “Request for Information on FEMA Programs, Regulations, and Policies; Public Meetings; Extension of Comment Period,” 86 FR 30326, June 7, 2021.

Comments on the RFI that are relevant to the IHP issues addressed in this rule are discussed below. Comments regarding other IA programs outside of IHP, such as Disaster Legal Services, other FEMA program areas, such as Public Assistance, or that were otherwise not directly relevant to this rule, are not discussed.

Registration Period

A few commenters raised issues regarding the registration deadline for FEMA programs, arguing that the current deadline posed difficulties for applicants—particularly for applicants from underserved populations—and should be extended.

One commenter stated applicants may have a wide variety of valid reasons for registering late and that requiring documentation to justify the late filing is inappropriate and unnecessary.

This commenter requested all registrations received during the post-deadline grace period be accepted without additional documentation.

Another commenter recommended removing the registration deadline altogether, saying that it was arbitrary and discouraged disaster survivors from registering.

This commenter also noted that disaster survivors may not realize they need assistance immediately and that even once they do, it may be difficult for them to meet the registration deadlines due to the impacts of a disaster, such as being displaced or losing telephone service. Finally, this commenter argued that FEMA should not impose a registration deadline that ends before the period of assistance for the disaster ends.

FEMA-2021-0011-0149, FEMA-2021-0011-0236, FEMA-2021-0011-0277, and FEMA-2021-0011-0295.

FEMA-2021-0011-0149.

The commenter referred to a 30-day grace period after the registration period, but as described below, FEMA actually accepts late applications for 60 days following the close of the registration period.

FEMA-2021-0011-0295.

We do not agree that a registration deadline discourages disaster survivors from registering. Rather, it provides clear submission timeframes to help disaster applicants.

FEMA's regulations, at 44 CFR 206.112, provide that the standard registration period is 60 days following the date that the President declares an incident a major disaster or an emergency. FEMA may extend the registration period when the State

requests more time to collect registrations from the affected population. FEMA may also extend the standard registration period when necessary to establish the same registration deadline for contiguous counties or States. After the standard or extended registration period ends, FEMA accepts late registrations for an additional 60 days. FEMA processed late registrations for registrants that provided suitable documentation

to support and justify the reason for the delay in their registration.

To improve readability, the term “State” will be used in this rule to refer to State, Tribal, and Territorial governments, as applicable. Where there are relevant differences in how these governments are treated under the Stafford Act or FEMA's regulations, they will be explained in more detail.

Page 71 of IAPPG 1.1 discusses late applications and the types of acceptable information FEMA required in order for the late application to be considered.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

FEMA required the applicant to submit a letter, signed by the applicant or person who the applicant authorizes to act on their behalf, explaining the extenuating circumstances that prevented them from applying for assistance in a timely manner. Acceptable documentation included record of hospitalization, illness, or disability of the applicant or an immediate family member; record of death for an immediate family member; or proof of personal or business travel that kept the applicant out of the area for the full registration period.

See page 71 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf

Based on comments indicating that the level of documentation required to justify a late application is inappropriate and unnecessary, FEMA is removing the requirement to provide documentation. FEMA agrees that the late application process should be simplified to reduce the burden on disaster survivors. Therefore, under this rule, FEMA will only require that registrants explain the reason for the delay. This change is discussed in more detail in the section-by-section analysis, below.

FEMA believes these changes are needed to the current regulations to allow individual applicants to more easily submit a late application, but the regulations are generally sufficient to ensure the majority of disaster survivors have an adequate opportunity to register for assistance during the registration period. FEMA reaches out to survivors and communities after disasters using multiple tools, teams, and tactics to help applicants register for assistance, to include placing staff who can register applicants in disaster impacted areas and shelters.

Although disaster survivors may face a range of challenges in applying for assistance, the initial 60-day period is generally sufficient for most disasters, and for those specific disasters where there may be additional difficulties with timely filing, FEMA may extend the period. Increasing the default registration period or removing limits on registration altogether could lead to more applicants filing late, slowing the delivery of assistance, and increasing the administrative burden for FEMA in processing those applications.

The flexibility to extend the registration period on a disaster-by-disaster basis as appropriate allows FEMA to avoid unnecessary delays in program administration while still giving applicants additional time when needed, is why the registration period is not arbitrary.

For more information see FEMA in the Field: Disaster Survivor Assistance and Disaster Recovery Centers,

https://www.fema.gov/fact-sheet/fema-field-disaster-survivor-assistance-and-disaster-recovery-centers

. FEMA currently provides letters in English and Spanish. FEMA recently updated our English and Spanish letters to include a tagline in six languages informing applicants how to contact the Helpline for translation help. The six languages are: English, Spanish, Russian, Portuguese, Vietnamese, and Korean. FEMA knows which language to provide letters in based on the language that the Disaster Survivor selected on their Disaster Assistance Registration.

In response to a disaster declaration, FEMA scales up its resources including individuals working the FEMA Helpline, inspectors deploying to the field to conduct damage assessments, and staff deploying to the field to assist the Region and State in disaster recovery. Often, these individuals will staff Disaster Recovery Centers (DRCs), which are locations where individuals may register for assistance, ask questions about their application, provide documentation, etc. to FEMA or other government representatives in person. Removing a registration timeframe or increasing it beyond the current periods established in the regulations would increase the amount of time staff would need to be deployed in these various roles.

Data shows that over the last 10 years, the registration period was extended past the initial 60 days authorized in 44 CFR 206.112(a) in 42 percent of Individual Assistance (IA) declarations. In 44 CFR 206.112(b), FEMA still retains the ability to extend the registration period on an as-needed basis. FEMA, in coordination with a State, Tribal, or Territorial (STT) government, can extend the registration period when there are wide-spread obstacles that may delay or impede disaster survivors' ability to register, while maintaining the authority to accept late registrations from disaster survivors who may have specific, individual circumstances that impact their opportunity to register.

Accessibility, Language Access, and Effective Communication With People With Disabilities

Numerous commenters provided general statements about improving applicant access to FEMA assistance and the necessity for improving FEMA staff training to assist with language and accessibility needs across programs. Eight of these comments raised concerns about applicant accessibility within FEMA's IHP. Five commenters reasoned that FEMA must improve its communication access for applicants who have a primary language other than English with Limited English Proficiency (LEP),

as well as applicants with low-literacy and those with a disability who use another form of communication (

e.g.,

American Sign Language). These commenters stated that FEMA must provide effective translation or local FEMA employees that speak the applicant's language and can effectively explain the IHP process, as well as provide multilingual staff that can answer applicant questions during inspections, throughout registration intake, and in-person at DRCs.

FEMA-2021-0011-0149, FEMA-2021-001-0164, FEMA-2021-0011-0261, FEMA-2021-0011-0282, and FEMA-2021-0011-0313.

Five commenters questioned FEMA's ability to adequately identify and meet the reasonable accommodation and reasonable modification needs of applicants with disabilities across the IHP service delivery process.

These commenters reasoned that FEMA failed to establish a clear and transparent public process for survivors to request reasonable accommodations and reasonable modifications. One commenter stated that even if a disaster survivor has requested an accommodation or a modification, FEMA has no system to indicate that they are a survivor with a disability or that they need an accommodation or a modification other than another undifferentiated note in their file.

Commenters explained that, consequently, these requests do not automatically populate across IHP, so FEMA staff are often unaware of an applicant's previously documented accommodation, modification, or access need. They argued that this lack of planning and transparency denies meaningful access to survivors with disabilities and inhibits their ability to access reasonable accommodations and reasonable modifications within all aspects of IHP.

FEMA-2021-0011-0152, FEMA-2021-0011-0164, FEMA-2021-0011-0167, FEMA-2021-0011-0205, and FEMA-2021-0011-0313.

FEMA-2021-0011-0152.

Two commenters stated that IHP did not provide allowances for the inclusion of accessibility-related items for pre-existing or disaster acquired disabilities. These commenters asserted that disaster survivors with physical disabilities who require accommodations or modifications to access their home in the wake of a disaster should receive timely assistance to repair their homes.

Two commenters further explained that FEMA's habitability standards are inequitable and deny IHP assistance to applicants with disabilities and survivors who have low income, especially for applicants within these underserved groups who also have underlying health conditions. These commenters asserted that a habitability standard which assumes that what is safe to occupy for one person is safe to occupy for another person is wrong. They explained that because IHP policy has not considered the presence of mold a condition that would prevent an applicant from occupying a home safely, applicants with immunocompromised health conditions such as asthma, cancer, or sickle cell disease, for whom it was unsafe to live in a home with mold, were routinely denied assistance.

FEMA-2021-0011-0164 and FEMA-2021-0011-0261.

FEMA-2021-0011-0152 and FEMA-2021-0011-0164.

FEMA acknowledges that voluntary agencies and community organizations are the first and last organizations to provide survivors support services in a community before and after a disaster. Therefore, FEMA's Voluntary Agency Coordination Section provides technical assistance, coordination, and subject matter expertise to partners who are addressing gaps in resources, providing financial support and additional support to survivors after government assistance is exhausted. This assistance is provided via FEMA's Voluntary Agency Liaison (VAL) staff. The function of the VALs is to coordinate voluntary activities between internal FEMA partners, local, State, and Federal Government entities and State and National Voluntary Organizations Active in Disaster; to support and build the capability of disaster recovery for current and future disasters; and to support ongoing community recovery activities even after the period of assistance has ended. VALs work directly with IA staff to ensure that all disaster survivors to include those with LEP are informed of FEMA assistance.

FEMA has many ways to meet survivors' language needs. Many FEMA employees are bilingual or multilingual and can assist LEP survivors with registration in their primary language by phone and in-person at a DRC. All DRCs have a sign posted in a visible location with the phrase “If you do not speak English” in over 40 languages. A DRC staff member will use that sign to determine what language the survivor speaks and call for an interpreter to assist them.

If an in-person interpreter is not present at the DRC, FEMA staff will connect the survivor with the FEMA Helpline or video relay service so the survivor is able to communicate with the FEMA employee accurately. FEMA's Helpline has interpretation services provided by qualified interpreters available in 250 languages to assist LEP disaster survivors.

FEMA recognizes that an applicant's ability to effectively communicate their reasonable accommodation or reasonable modification request is essential. To improve FEMA's ability to assist applicants with disabilities with requesting and receiving reasonable accommodations and reasonable modifications during registration, FEMA recently updated its registration process to better capture accommodations, modifications, and access assistance needs for applicants and their household members. Specifically, FEMA added questions to the Disaster Assistance Registration forms to provide applicants with an opportunity to consider, document and differentiate their household's pre-disaster and disaster-caused accommodation or modification requests and access needs. FEMA uses responses to registration questions to provide reasonable accommodations, reasonable modifications, and assistance to applicants throughout the IHP process. These questions include whether the applicant has a disability or language need that requires an accommodation or modification, or interpretation or translation services to interact with FEMA staff and/or access FEMA programs; if the applicant or anyone in their household has a disability that affects their ability to perform daily living activities or requires an assistive device; and whether they have any disability-related assistive devices or medically required equipment/supplies/support services damaged, destroyed, lost, or disrupted because of the disaster.

This rulemaking clarifies that ONA includes medical service costs for the loss or injury of a service animal. See new 44 CFR 206.119(b)(3)(iv).

FEMA recently completed system updates with the new question in 2018 to ensure information provided in response to these questions at registration or provided to staff at other times are captured and easily accessible to all staff in a consistent area in the system. FEMA is also performing additional outreach to applicants with disabilities and language access needs to assist them in understanding any correspondence FEMA provides to them.

Applicants who state they have a disability during the registration process are placed in a prioritization queue and, if later determined ineligible for FEMA assistance, will be contacted via phone to explain their ineligibility. The field will also conduct their own outreach via phone to applicants with access and functional needs. FEMA continues to explore new methods and processes for documenting and populating reasonable accommodation and reasonable modification requests across the IHP. Lastly, in this rule, FEMA is revising the IHP

Application for Continued Temporary Housing Assistance, FEMA Form FF-104-FY-21-115,

to include a question that provides applicants with another opportunity to identify any disability-related household needs that might impact their application or recertification for temporary housing assistance.

FEMA currently provides letters in English and Spanish. FEMA recently updated our English and Spanish letters to include a tagline in six languages informing applicants how to contact the Helpline for translation help. The six languages are: English, Spanish, Russian, Portuguese, Vietnamese, and Korean.

As noted in the IAPPG 1.1, FEMA may provide Home Repair Assistance and Personal Property Assistance for disaster-damaged accessibility-related items. Nevertheless, in response to public requests for IHP policy that meets applicants' disaster-caused structural home modification needs, FEMA recently amended its policy to include

Assistance for Disaster-Caused Americans with Disabilities Act (ADA

)

Real Property Needs.

The September 2, 2021,

Amendment to FEMA Policy (FP) 104-009-03, Individual Assistance Program and Policy Guide (IAPPG), Version 1.1

memorandum currently allows FEMA to provide financial assistance to applicants who incur a disaster-caused disability and consequently require the installation or construction of accessibility-related real property components at their damaged dwelling to meet their needs. Home Repair Assistance for specific accessibility-related items is not limited by a financial maximum award. The following accessibility-related items are currently eligible under Home Repair Assistance when the applicant or a member of the household has a disaster-caused disability:

• Exterior ramp.

• Grab bars.

• Paved path of travel to the primary residential entrance (for accessible ingress or egress from the applicant's vehicle to their dwelling).

In response to public comments, FEMA is also making changes to the regulatory text at 44 CFR 206.117(b)(2) and adding a new 44 CFR 206.113(a)(9) as a part of this rule. The changes allow FEMA flexibility to provide financial assistance to applicants for the installation or construction of real property items that were not present in the home prior to the disaster. Specifically, these changes allow IHP to expand its existing policy, which provides for the installation of ADA related real property to applicants with disaster-caused needs, to include Home Repair Assistance for disaster survivors with pre-existing, pre-disaster needs for accessibility-related items, such as an exterior ramp, grab bars, etc., that make their home safe and functional when any level of disaster-caused real property damage occurs to the primary residence.

In new 44 CFR 206.113(a)(9), FEMA states that FEMA may provide assistance with respect to home repair for accessibility-related items, if an applicant meets the following conditions: (i) the applicant is either an individual with a disability as defined in 42 U.S.C. 5122 whose disability existed prior to the disaster

and whose primary residence was damaged by the disaster, or an individual with a disability as defined in 42 U.S.C. 5122 whose disability was caused by the disaster and whose primary residence was damaged by the disaster; (ii) the real property component is necessary to meet the accessibility-related need of the household; and (iii) the real property component is not covered by insurance or any other source.

FEMA generally will accept statements from relevant medical providers, such as physical therapists, occupational therapists, registered nurses, physician assistants, etc.

Via information collection at 1660-0002, we are adding a documentation requirement to tie the need for the home repair accessibility-related items (which currently includes only ramp, grab bars, and/or paved pathway) to the pre-existing disability to meet the household's access and functional need. We are requiring that a medical, health care, or rehabilitation professional certify whether or not this is necessary; as, they have the expertise to make that determination or we will accept prior medical, health care, or rehabilitation professional documentation that supports the need for the accessibility-related items.

FEMA is making the below changes to Home Repair Assistance to respond to four RFI comments,

so that FEMA may make the dwelling safe/sanitary for pre-disaster disabled applicants. For example, this change will allow FEMA to reimburse pre-disaster disabled applicants for installation of accessibility items, such as grab bars and access ramps, if the primary residence sustained disaster damage regardless of whether or not the applicant had grab bars or access ramps pre-disaster.

FEMA-2021-0011-0152, FEMA-2021-0011-0164, FEMA-2021-0011-0235, and FEMA-2021-0011-0261.

If the FEMA assistance provided for these items is less than the actual cost to the applicant, the applicant may appeal for additional assistance. FEMA will accept itemized bills, receipts, or estimates to verify that there is a need for additional assistance.

In 44 CFR 206.117(b)(2)(i), FEMA states that FEMA may provide financial assistance for the repair of an owner-occupied primary residence if: the eligibility criteria in 44 CFR 206.113 are met; FEMA determines the dwelling was damaged by the disaster; and the damage is not covered by insurance. This provision is similar to the current 44 CFR 206.117(b)(2)(i), except FEMA is removing the phrase “real property components in” before “an owner-occupied primary residence;” adding “FEMA determines” after “met;” removing “to the component” after “damage” and replacing “component” with “dwelling,” as the Stafford Act does not limit repairs to “components” and replacing “owner's” with “owner-occupied” for consistency as

owner-occupied

is the defined term in 44 CFR 206.111; removing the current 44 CFR 206.117(b)(2)(i)(B) that “the component was functional immediately before the declared event” and removing current 44 CFR 206.117(b)(2)(i)(E) that “the repair of the component is necessary to ensure the safety or health of the occupant or to make the residence functional,” and removing the clause “and the damage was caused,” since this rule will allow FEMA to pay for pre-existing conditions if the component itself was damaged by the disaster.

In 44 CFR 206.117(b)(2)(ii), FEMA states that FEMA may provide financial assistance for the repair of the disaster damaged dwelling to a safe and sanitary living or functioning condition. This

clause is consistent with the current 44 CFR 206.117(b)(2)(ii), except FEMA is adding “the disaster damaged dwelling to a safe and sanitary living or functioning condition including” after “of.” These additions align with the changes that make it clear that only disaster damaged dwellings (regardless of their pre-disaster condition) may receive repair assistance, as FEMA may only pay to restore disaster damage to a safe and sanitary living or functioning condition. If the dwelling was not touched by the disaster, it will not be eligible for repair assistance; therefore, the applicant would not be able to apply for Home Repair Assistance for their pre-existing, pre-disaster needs for accessibility-related items, such as an exterior ramp, grab bars, etc., that would make their home safe and functional.

The September 2, 2021,

Amendment to FEMA Policy (FP) 104-009-03, Individual Assistance Program and Policy Guide (IAPPG), Version 1.1

memorandum also amended the Home Repair Assistance section in IAPPG 1.1 to include financial assistance to repair real property components impacted by disaster-caused mold growth.

The amendment's expressed intent was to support low income and other underserved disaster survivors who may not have the means to immediately address disaster damage, particularly when disasters are not declared immediately or inspections are delayed. However, all applicants with disaster-caused mold damage may be eligible for the assistance when they meet all other conditions of eligibility. These additional funds will be provided as part of the Home Repair Assistance award when applicable.

See page 9 of the Amendment to FP 104-009-03, Individual Assistance Program and Policy Guide, Version 1.1 memorandum cites to Chapter 3, Section IV.E. of the IAPPG 1.1, which is on pages 85-88 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

Appeals

Sixteen commenters provided responses about the IHP appeal process. Ten of the commenters expressed concern that the appeal process is burdensome on applicants and must be simpler in order for applicants of varying backgrounds and communities to successfully navigate the process.

According to 3 of these 10 commenters, filing a successful appeal for applicants in traditionally underserved populations often requires hard to find or costly access to legal services.

To streamline the appeal process and reduce the burden on disaster survivors, these commenters suggested FEMA expand methods for filing appeals, including by:

FEMA-2021-0011-0151, FEMA-2021-0011-0162, FEMA-2021-0011-0209, FEMA-2021-0011-0235, FEMA-2021-0011-0237, FEMA-2021-0011-0245, FEMA-2021-0011-0260, FEMA-2021-0011-0261, FEMA-2021-0011-0273, and FEMA-2021-0011-0292.

FEMA-2021-0011-0151, FEMA-2021-0011-0245, and FEMA-2021-0011-0260.

• Allowing applicants to file appeals online, by telephone, and in-person.

FEMA-2021-0011-0149, FEMA-2021-0011-0261, and FEMA-2021-0011-0292.

• Providing a standard appeal form.

FEMA-2021-0011-0245.

• Reaching out directly to applicants by phone to personally assist them with the appeal process when they are denied assistance.

FEMA-2021-0011-0261.

• Providing appeal status updates to applicants through their online applicant portals.

FEMA-2021-0011-0149.

Two additional commenters described the appeal process as overly complicated to navigate because of challenges in other parts of the IHP delivery process. Specifically, these commenters asserted that IHP eligibility notification letters provided unclear explanations of the reason an applicant is determined ineligible for assistance. The commenters explained that when applicants are unable to identify and understand the cause of their denial for assistance, they lack critical information needed to pursue a successful appeal.

Three commenters also discussed obstacles disaster survivors face after the trauma of a major disaster and recommended that FEMA extend the appeal deadline beyond the current 60 days.

Two of these commenters explained that by providing applicants with a grace period for establishing ownership and addressing other issues that take time to obtain documentation, FEMA could improve access to their programs for applicants with low income and applicants of color who are disproportionately affected by heir-ownership (when a person inherited the land or residence but does not hold formal title to it) and other documentation issues.

FEMA-2021-0011-0237 and FEMA-2021-0011-0275.

FEMA-2021-0011-0149, FEMA-2021-0011-0208, and FEMA-2021-0011-0245.

Three other commenters argued the need for greater transparency in the appeal process.

One of the three recommended that FEMA publish appeal decisions online, while another suggested that if an applicant pursues an appeal and inspection documents exist, FEMA should provide those documents to the applicant regardless of the applicant's appeal approval or denial status. Four commenters maintained that the issue went beyond transparency and was instead a matter of fairness. They asserted that the existing appeal process is unfair because FEMA serves as both the

original

decision maker—determining applicant eligibility or award amount, while simultaneously serving as the

final

decision maker—determining if those same applicants have waged a successful appeal to overturn FEMA's original eligibility and/or award decisions.

Three of these commenters went on to reason that a right of legal action in the courts, to include an oral hearing and discovery, should be built into the FEMA appeal process.

FEMA-2021-0011-0162, FEMA-2021-0011-0260, and FEMA-2021-0011-0295.

FEMA-2021-0011-0235, FEMA-2021-0011-0275, FEMA-2021-0011-0295, and FEMA-2021-0011-0302.

FEMA does not have the legal authority to accept the commenters' suggestions to create a right to challenge FEMA's eligibility decisions in court as part of the appeal process, so that FEMA is not both the original decision maker and the final decision maker. The United States is immune from suit unless it consents to be sued.

The Stafford Act provides that FEMA shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty. 42 U.S.C. 5148. The appeal process applies to FEMA's eligibility decisions under IHP. FEMA's eligibility decisions are discretionary determinations, which means that they are not reviewable by a court.

However, FEMA has protocols in place that guarantee appeals are not reviewed by the same case worker who made the original eligibility determination.

See, e.g., United States

Mitchell,

463 U.S. 206, 212 (1983).

See City of San Bruno

FEMA,

181 F. Supp. 2d 1010, 1014-5 (N.D. Cal. 2001) (“Distributing limited funds is inherently a discretionary responsibility.”) Please note, while the eligibility decisions underlying appeals are discretionary and therefore immune from suit, the mandatory provisions in 42 U.S.C. 5189a related to appeals are not: FEMA is required to issue rules providing for the fair and impartial consideration of appeals. FEMA has discharged that responsibility by issuing regulations although the content of those regulations are also considered discretionary and immune from suit. (

Barbosa

United States Dep't of Homeland Security,

916 F.3d 1068, 1073 (D.C. Cir. 2019)) (“We have little doubt that the statutory requirement for regulations rely on the discretionary judgment of FEMA; the range of choice that FEMA can employ is quite wide”).

FEMA similarly does not have the legal authority to extend the 60-day appeal time frame set forth in 42 U.S.C. 5189a(a). Nevertheless, as a part of this rule, FEMA identified an opportunity to

codify additional flexibilities for applicants in meeting this 60-day deadline for appeals sent by mail. As is currently done in practice, FEMA will continue to accept and process any appeal postmarked within 60 days of the date on the applicant's IHP decision letter, even if FEMA receives the appeal outside of the 60-day deadline.

FEMA can address comments to simplify the appeal process by removing the requirement to submit an appeal and by creating an optional appeal form. FEMA's existing regulations, 44 CFR 206.115(b), require that appeals must be in writing and explain the reason(s) for the appeal. However, a written explanation may not be necessary to substantiate an appeal claim. Instead, supporting documents, such as receipts, bills, repair estimates, contractor estimates, property titles, or deeds may better demonstrate the reason(s) for the appeal and provide justification for FEMA to reconsider the applicant's original eligibility determination. Nevertheless, to comply with the existing regulations, FEMA does not currently process appeals that do not contain the required written and signed letter of explanation, even if the applicant provides adequate documentation. To alleviate this bureaucratic hurdle, FEMA is removing the requirement that applicants must submit a signed appeal letter explaining the reason(s) for the appeal when they have provided sufficient justification through supporting documents. This change will streamline the appeal process and reduce additional paperwork and correspondence between the applicant and FEMA that may delay the applicant's recovery process.

To further assist applicants with navigating the appeal process, as suggested by a commenter, as part of this rulemaking, FEMA has developed an optional Appeal Request Form which applicants may use to assist them when submitting an appeal.

This form, which FEMA will accept as a written explanation, will be available online at

www.DisasterAssistance.gov.

These changes are intended to provide a more user-friendly, equitable, and efficient appeal process that better meets the needs of traditionally underserved populations.

FEMA is providing in this rule that appeals must include a written explanation or verifiable documentation for the appeal. This will give disaster survivors the option to complete the Appeal Request Form instead of drafting a written appeal letter, or submit verifiable documentation without the form or a letter. FEMA currently provides letters in English and Spanish. FEMA recently updated our English and Spanish letters to include a tagline in six languages informing applicants how to contact the Helpline for translation help. The six languages are: English, Spanish, Russian, Portuguese, Vietnamese, and Korean. FEMA knows which language to provide letters in based on the language that the Disaster Survivor selected on their Disaster Assistance Registration.

With respect to the additional suggestions from commenters, FEMA notes that under the current process, applicants may access key information online, including appeal status, letters, and their personal appeal decision. Applicants with an online account can upload their appeal

or check the status of their appeal, by visiting

www.DisasterAssistance.gov

and selecting

Check Your Application Status

or by calling FEMA's Helpline at 800-621-3362 (711 or VRS available). Applicants who use a relay service, such as a Videophone, InnoCaption, or CapTel, are asked to provide the specific number assigned to that service. Individual applicants can reference their personal appeal decisions and letters online if they have created an online account and selected electronic correspondence from FEMA. FEMA considered publishing appeals information. Ultimately, FEMA declined to do so, due to a concern that releasing data of only appeal applicants would appear to require greater public exposure for appeal applicants than is required for initial applicants. Publication of appeal records could discourage applicants from appealing, or even appear to be a punitive measure for individuals who appeal.

Applicants that create an online FEMA account or use their

account can upload documents including appeal letters.

Our system does not have the capability to display inspection reports nor is it captured in FEMA's National Emergency Management Information System (NEMIS) in a way that would readily be understood by the public. As part of FEMA's development of a new system,

FEMA plans to improve the amount of detail that can be provided to applicants related to their inspection results and eligibility.

FEMA has been collecting suggestions from various workshops and other feedback efforts to ensure the new system, once built, meets all IHP and applicant needs.

In addition, under section 423 of the Stafford Act, 42 U.S.C. 5189a, and existing regulations governing FEMA IHP, 44 CFR 206.115(d)-(f), an applicant may ask for a copy of information in his or her file by writing to FEMA. To promote transparency, FEMA's regulations require the agency to give the applicant a written notice of the disposition of the appeal within 90 days of receiving the appeal. The appeal decision made by FEMA, or the State, Tribal, or Territorial (STT) government in instances where the STT government has opted to process ONA, is final. FEMA believes its current regulations are sufficient to ensure that disaster survivors can exercise their right to appeal assistance decisions. The existing regulations provide FEMA with the flexibility needed to meet survivor needs, while complying with privacy and paperwork reduction laws, intended to protect applicant information and minimize burdens, and avoiding the unnecessary expenditures and delays that would be a part of implementing the expanded appeal process requested by commenters, which included a litigation component to the IHP appeal process.

Finally, FEMA makes every effort to ensure that its correspondence is written using plain language and that eligibility notification letters provide adequate explanation of the applicant's eligibility determination, award decision, and next steps should the applicant want to appeal the eligibility determination or award amount.

For example, FEMA conducts periodic, comprehensive reviews of our applicant correspondence to make improvements based on disaster survivor feedback. As part of this process, FEMA hosts focus groups with disaster survivors to give them the opportunity to review proposed changes to our letters

and to provide us with feedback about how to make the letters more understandable and helpful. FEMA reviews the feedback received from the focus groups before finalizing changes to the letters. FEMA held focus groups in 2016 and 2022.

In 2022, the focus groups reviewed the following letters: Cover Letter sent to all applicants; Continued Temporary Housing Assistance Letter; Denial letter; Approval letter; Request For Information letter; and Identity Theft/Bank Routing letter.

At the 2016 focus group, 196 people agreed to participate but only 76 actually attended the feedback sessions. At the 2022 focus group, 102 people agreed to participate but only 18 actually attended the feedback sessions.

Prior to peak hurricane season in 2022, FEMA updated its applicant letters based on focus group feedback, with the intent of simplifying the letters and making the appeal process clearer. As one example of a change made based on focus group input, FEMA further clarified the relationship between SBA and FEMA and how our processes interact, after focus group members

indicated that the SBA section of the letters were confusing.

Applicants who need assistance with understanding their eligibility notification letter or the appeal process can receive assistance by phone by calling the FEMA Helpline at 800-621-3362 (711 or VRS available). When available, applicants may also receive in-person assistance by visiting a local DRC, where FEMA and SBA customer representatives are available. FEMA will continue to explore options for simplifying the process for submitting appeals and strives to continue to identify ways to alleviate any disparate impacts to underserved groups in the IHP process.

Assistance by Default

Two commenters suggested FEMA implement proactive measures to provide a broad delivery of disaster assistance to residents in a declared area in order to equitably deliver assistance without regard to economic ability, housing situation, or specific losses attributed to the disaster.

One of the suggestions specified assistance should be delivered as an opt-out method, with a stronger focus on the housing needs of parolees and unhoused individuals.

FEMA-2021-0011-0259 and FEMA-2021-0011-0274.

FEMA has a duty under section 408(i) of the Stafford Act, 42 U.S.C. 5174(i), to verify each applicant is eligible for assistance. Additionally, section 696 of the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), 6 U.S.C. 795, also requires FEMA to develop and maintain proper internal management controls to prevent and detect fraud, waste, and abuse. Accordingly, without a change to these underlying statutory provisions, FEMA cannot provide assistance without first verifying the applicant's specific housing situation or losses.

While FEMA understands the immediate need for assistance after catastrophic events, FEMA also has to balance its responsibility to ensure assistance is provided only to eligible individuals and for the purpose allowable by statute. Therefore, FEMA must verify disaster-caused loss or expenses. Additional assistance provided for in this rulemaking, such as Serious Needs Assistance and Displacement Assistance,

will make more funds immediately available and their eligibility criteria and uses are less specific than most existing forms of IHP assistance. It should also be noted that there are other State or local agencies, as well as volunteer organizations, that may be able to provide more targeted assistance to populations where needs and challenges extend beyond disaster caused impacts.

Applicants experiencing homelessness pre-disaster who can also verify occupancy at an impacted location may also be considered for Initial Rental Assistance only; LER; all types of ONA (this includes Serious Needs Assistance, Displacement Assistance, and Critical Needs Assistance (prior to the IFR).)

FEMA remains committed to ongoing community engagement and communication with our stakeholders to better understand the needs of traditionally underserved communities and to share information regarding disaster preparedness and recovery assistance. We conduct tribal engagement sessions on draft policies; and we have held engagement sessions with the public on letter updates. We also engage with other stakeholders, such as Congressional members and staff, State and local officials, and advocacy organizations to discuss their concerns.

Citizenship

A few commenters raised issues regarding immigration status-based restrictions on FEMA IA, arguing that FEMA should reform the IA Program to ensure that undocumented residents are eligible. Commenters noted that undocumented families are unable to access a range of benefits and therefore are more likely to suffer lasting harm.

One commenter stated that the FEMA registration process asks for information on all members of the household, not just the eligible member(s). Non-eligible parents who have survived disasters, even if they have U.S. citizen children, and other eligible survivors are not applying for help for fear they or others in their household may be turned in to immigration enforcement authorities.

This commenter also stated that FEMA should repeal its alleged policy of forwarding citizenship status to immigration enforcement authorities or any other Government agencies. Another commenter stated that one of the obstacles for disaster survivors seeking FEMA assistance is that based on the “Welfare Reform Act,” an immigrant must have been designated a legal immigrant for 5 years in order to receive any Federal financial assistance.

Another commenter suggested that FEMA should look into creating and promoting programs available for people who are not citizens but pay taxes through work permits or ITIN

numbers.

Lastly, one commenter stated that immigration and naturalization status is one demographic characteristic that is notably absent in the RFI.

FEMA-2021-0011-0293 and FEMA-2021-0011-0269.

FEMA-2021-0011-0245.

FEMA-2021-0011-0255.

An ITIN, or Individual Taxpayer Identification Number, is a tax processing number only available for certain nonresident and resident aliens, their spouses, and dependents who cannot get a Social Security Number (SSN). It is a 9-digit number, beginning with the number “9,” formatted like an SSN (NNN-NN-NNNN).

FEMA-2021-0011-0275.

FEMA-2021-0011-0163.

Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, sometimes referred to as the Welfare Reform Act, Pub. L. 104-193, provides that noncitizens who are not “qualified aliens” are not eligible for Federal public benefits, which include assistance provided under Section 408 of the Stafford Act, 42 U.S.C. 5174. FEMA cannot alter this requirement without a statutory change; however, FEMA considers the citizenship status of the entire household where someone is applying for assistance. This means that any adult household member who is a U.S. citizen or qualified alien in the household may apply for assistance, or any undocumented immigrants with children who are U.S. citizens may apply on behalf of their child. Further, regardless of citizenship status, disaster survivors may be eligible for the following FEMA programs that provide services instead of financial assistance to individuals:

• Mass Care/Emergency Assistance (Section 403 of the Stafford Act, 42 U.S.C. 5170b) which addresses sheltering needs immediately following a disaster;

• Crisis Counseling Assistance and Training Program (Section 416 of the Stafford Act, 42 U.S.C. 5183) which is a Federal-funded supplemental program that enables State, local, Territorial, or Tribal government agencies to provide crisis counseling services or contract with local mental health service providers to provide services;

• Disaster Case Management (DCM) (Section 426 of the Stafford Act, 42 U.S.C. 5189d) which is a Federal-funded supplemental program that provides financial assistance to State, local, Territorial, or Tribal government agencies, or qualified private organizations, to enable non-Federal entities to provide DCM services; and

• Disaster Legal Services (Section 415 of the Stafford Act, 42 U.S.C. 5182) which via an agreement with the American Bar Association provides free legal help for survivors.

In 2017, FEMA updated the FEMA registration language by removing

references to the Bureau of Immigration and Customs Enforcement

and clarifying the reasons FEMA would share information. The current version informs applicants that, consistent with the Privacy Act, 5 U.S.C. 552a, FEMA may share individuals' information with Federal, State, Tribal, and local agencies and voluntary organizations to enable individuals to receive additional disaster assistance or to allow FEMA to administer assistance.

The Bureau of Immigration and Customs Enforcement is now referred to as the U.S. Immigration & Customs Enforcement.

See ICR Reference No. 202201-1660-005, FF-104-FY-21-122 (formerly 009-0-1) View Information Collection Request (ICR) Package (

reginfo.gov

The topic of immigration is notably absent in the RFI because citizenship requirements for Federal assistance are established by statute and cannot be resolved via rulemaking. However, FEMA has no policy of forwarding individuals' information particularly pertaining to their citizenship status to immigration enforcement authorities. Accordingly, FEMA posts the following language via a flyer in all DRC locations. “This location is a protected area designated to provide emergency response and relief. FEMA will not proactively share your information with immigration or law enforcement agencies. U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) will not conduct enforcement operations at or near this location, except in the most extraordinary of circumstances.”

Codes and Standards

One comment was received suggesting that FEMA should require IHP applicants to adhere to minimum construction standards for any applicable repair to their disaster-damaged home, regardless of whether the local community has adopted a building code.

While FEMA recognizes the importance of building codes and encourages all communities to adopt and enforce modern building codes,

we do not believe it is appropriate to establish a nationwide minimum construction standard for IHP at this time. FEMA provides funds to IHP recipients to address disaster repair needs, which may include costs to meet applicable codes, up to the Housing Assistance maximum award. Recipients should rebuild or repair their damaged homes in compliance with applicable State and local codes, and are subject to State and local enforcement of those codes. FEMA does not have the capacity to monitor and enforce a nationwide minimum construction standard for IHP. Moreover, FEMA does not have the authority to fund costs of compliance of any such code beyond the maximum award amount, which would leave some recipients in a situation where FEMA would require repair work but would not be able to provide sufficient funding to cover it.

FEMA-2021-0011-0307.

https://www.fema.gov/sites/default/files/documents/fema_bcs-brochure_03-01-21_0.pdf

Cost Share

Two commenters raised issues regarding the cost share requirement, arguing that FEMA should reduce or remove the requirement altogether.

The commenters noted that the cost share requirement can preclude many communities from accessing resources because they do not have the ability to meet the cost share, specifically, economically disadvantaged rural communities and Tribal Nations.

FEMA-2021-0011-0265 and FEMA-2021-0011-0289.

Section 408(g) of the Stafford Act, 42 U.S.C. 5174(g), governs the IHP cost share. Specifically, it states that the Federal share of Housing Assistance under the IHP will be 100 percent; whereas, the Federal share for Other Needs Assistance will be 75 percent and the non-Federal share will be paid from funds made available by the relevant STT government.

The statute at 48 U.S.C. 1469a(d) allows FEMA to waive or adjust the cost share for disaster grants in insular areas such as the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. Outside of this one specific flexibility, FEMA does not have the ability to waive or adjust the cost share for IHP assistance through regulatory change, as it would require a legislative change.

The Stafford Act definition of State in 42 U.S.C. 5122(4) incorporates the Territories and DC. The “References” provision in 42 U.S.C. 5123 incorporates Tribes into either the definition of State or local government, depending on the role of the Tribe.

Data Sharing/Collection

Two commenters expressed their concerns with how applicant data is shared from FEMA with local partners. One of them commented that the way in which FEMA shares data with local partners seems to be inconsistent from incident to incident.

Additionally, they asked that FEMA utilize Internal Revenue Service (IRS) income data to expedite the verification process.

The other commenter mentioned how FEMA's registration data needs to be accurate and quickly made available to local partners, and that FEMA should create procedures to safeguard applicants' information.

FEMA-2021-0011-0187.

FEMA-2021-0011-0277.

FEMA recognizes that data sharing might make it easier for survivors to access assistance from other entities, and FEMA is always looking for ways to simplify IHP and speed the delivery of assistance. However, collecting, maintaining, and sharing data on a large scale presents challenges with respect to data security, and updating the rules on data sharing with State and local partners requires carefully balancing those concerns against the benefits of simplifying the program. FEMA continues to work alongside its State, local, Tribal, and Territorial partners to ensure that disaster recovery resources and services are not delayed or hindered by data collection and sharing concerns. Applicants can also access up to date information on their individual applications by setting up a Disaster Assistance Center electronic account with FEMA following a disaster.

Lastly, the IRS has indicated they could not share data with FEMA without statutory authorization.

As most forms of FEMA assistance are not income dependent, however, using IRS income data would not significantly improve how quickly FEMA is able to get initial assistance to applicants. Applicants are asked to self-report their income at Registration Intake to determine if the applicant meets criteria established by the SBA to indicate the capability to repay a loan. Those applicants determined potentially capable of repaying a loan are referred to the SBA and must complete an application with the SBA before being further considered by FEMA for SBA-dependent ONA. Additionally, as part of this rule, FEMA is removing the requirement that applicants must apply and be denied for an SBA disaster loan before being considered for SBA-dependent ONA, further minimizing any potential benefits of information sharing by the IRS.

See 26 U.S.C. 6103; IRS, Disclosure Laws (Oct. 5, 2022),

https://www.irs.gov/government-entities/federal-state-local-governments/disclosure-laws

. FEMA had multiple discussions with the IRS on this subject, and representatives from the IRS stated clearly that the agency believed that sharing this type of data with FEMA would require a statutory authorization.

Demographics

One commentor stated that Federal funds should not be a roadmap but rather a single point of engagement and support, especially to underserved communities or other communities who may fall below the poverty line or

become homeless, and should ensure quality of life before the disaster for these communities.

A few commenters suggested that FEMA should collect demographic data especially of those residing in vulnerable and underserved communities to identify the communities with the most need and enhance equitable recovery.

One of those commenters also suggested that FEMA should reconsider the constraints of the Paperwork Reduction Act on how FEMA collects and shares voluntary demographical data.

100

A few commenters raised the issue of the type of demographic data that FEMA should collect for identifying the communities which benefit most from FEMA resources to include voluntary household data (

i.e.,

gender and race) and how they intersect (

e.g.,

Black woman, Latino man); immigration and nationalization status; ethnicity; race; income; degree of rurality; and data that represents the underserved and others who may fall below the poverty line or become homeless.

101

FEMA-2021-0011-0159.

FEMA-2021-0011-0163, FEMA-2021-0011-0224, FEMA-2021-0011-0261, FEMA-2021-0011-0264, FEMA-2021-0011-0275, and FEMA-2021-0011-0277.

100

FEMA-2021-0011-0163.

101

FEMA-2021-0011-0163, FEMA-2021-0011-0259, FEMA-2021-0011-0261, and FEMA-2021-0011-0275.

With respect to acting as a single point of engagement for underserved communities' broader quality of life needs, FEMA is committed to providing disaster assistance in a fair and equitable manner. This rule's changes to how FEMA assesses habitability, discussed in more depth below, will put applicants in a better position to recover from disasters while staying within the bounds of FEMA statutory authority under the Stafford Act.

With respect to demographic data, in an effort to further understand the distribution of awarded IHP assistance, FEMA obtained Office of Management and Budget's (OMB) approval to gather demographic information from disaster survivors who choose to provide it.

102

This data will help FEMA assess

103

whether agency policies and actions create or exacerbate barriers to full and equal participation in our programs and better understand program outcomes for applicants.

102

Information Collection 1660-0154, Generic Clearance for Civil Rights and Equity. In the IHP, FEMA already collects some demographics for programmatic reasons (date of birth/age, income, and disability via OMB Control Number: 1660-0002, Disaster Assistance Registration). Under 1660-0154, new questions pertaining to race, Tribal enrollment, ethnicity, education, gender, and marital status are intended to be used in order to conduct robust statistical analysis of the outcome of IHP for various vulnerable populations. The data will be used to understand intersectionality of demographics and identify any issues with program implementation that may be affecting a specific group of individuals.

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The supporting statement associated with FEMA's demographics data collection, 1660-0154, indicates that FEMA will do analysis of the demographic questions to determine if it is necessary to continue to collect the data based on our findings. We plan to complete this analysis after 2 years of data collection, in the fall of 2024, to inform whether all six questions are still needed.

Disaster Housing Assistance Program

A few commenters mentioned the expired Disaster Housing Assistance Program (DHAP), which initially was created as a FEMA pilot program administered by the U.S. Department of Housing and Urban Development (HUD) to assist applicants of Hurricanes Katrina and Rita,

104

later for Hurricanes Ike and Gustav, and a small program for Hurricane Sandy. One commenter questioned why the previous administration did not utilize this program for any recent disasters.

105

Two other commenters requested the pilot program be reinstated.

106

104

See

https://www.huduser.gov/portal/publications/destech/DHAP.html

for a HUD evaluation of DHAP that served Katrina and Rita.

105

FEMA-2021-0011-0149.

106

FEMA-2021-0011-0162 and FEMA-2021-0011-0235.

Rather than reinstate DHAP,

107

FEMA has instead developed and implemented another form of Direct Temporary Housing Assistance called Direct Lease. Direct Lease provides FEMA with the ability to lease properties not generally available to the public directly from the landlord to provide temporary housing to eligible survivors.

108

Under Direct Lease, eligible survivors pay no cost for rent (not including utilities) for up to 18 months. FEMA matches survivors with available housing that meets their needs and FEMA is able to place applicants into Direct Lease within 4 to 6 weeks following a disaster declaration.

109

107

Building off lessons learned from DHAP, HUD, and FEMA had exploratory conversations regarding development of a new pilot called Disaster Assistance Supportive Housing (DASH). However, DASH is not currently being pursued.

108

The property must be an existing residential property, not typically available to the general public (

i.e.,

corporate apartments, vacation rentals, and second homes) for use as temporary housing.

109

In situations where pre-disaster HUD occupants are placed into a FEMA-provided direct housing unit, HUD will engage with the pre-disaster HUD assisted families to assist them in finding permanent housing.

Direct Housing

Several commenters mentioned Direct Housing Assistance. Four commenters recommended FEMA should change regulations and policy to allow FEMA to provide permanent housing solutions such as repairing and/or rebuilding the applicant's damaged/destroyed dwelling.

110

One commenter desired more housing options outside of Transportable Temporary Housing Units under Direct Housing Assistance,

111

whereas, another commenter wanted FEMA to provide more help to applicants on their permanent housing plan.

112

Lastly, one commenter wanted to remind FEMA to ensure information provided to applicants meet relevant fair housing and civil rights laws and notes that FEMA should enforce those laws with entities with whom FEMA partners.

113

110

FEMA 2021-0011-0157, FEMA 2021-0011-0237, FEMA 2021-0011-0269, and FEMA 2021-0011-0224.

111

FEMA 2021-0011-0261.

112

FEMA 2021-0011-0146.

113

FEMA 2021-0011-0235.

FEMA's existing regulations at 44 CFR 206.117(b) and IAPPG 1.1 currently allow for the following forms of Direct Housing Assistance: Transportable Temporary Housing Units, MLR, Direct Lease, and PHC. Per 42 U.S.C. 5174(c)(4), FEMA may only provide PHC assistance—in the form of direct repairs or new construction—to individuals and households to construct permanent or semi-permanent housing in insular areas outside the continental United States. Per 42 U.S.C. 5174(c)(4)(A)-(B), FEMA may also consider providing such assistance in other locations where no alternative housing resources are available and other types of Temporary Housing Assistance are unavailable, infeasible, or not cost-effective.

114

Such circumstances are extremely rare: FEMA has only authorized PHC in the continental United States twice.

115

114

See 44 CFR 206.117(b)(4)(i)(F).

115

The factors that most commonly result in a need for PHC outside the continental United States are a lack of temporary housing resources and an inability to bring temporary housing into an affected area due to high transportation costs.

FEMA supports all direct housing occupants—owners and renters—in achieving their Permanent Housing Plans

116

through multiple channels, including working with Voluntary Agency Liaisons

117

and DCM specialists

to identify and provide additional individualized services and referrals for occupants, coordinating with the respective STT government to jointly develop milestones for timely completion of occupant transitions to permanent housing, and maintaining engagement with the STT government and long-term recovery groups to identify State or local housing programs that can continue to support survivors after FEMA's direct housing mission closes. Furthermore, FEMA complies with and requires all housing entities with whom the Agency contractually partners to comply with Federal housing and civil rights laws. Lastly, it is important to note that FEMA is undertaking an effort to improve and streamline Direct Housing Assistance, which may include further regulatory reforms.

118

116

Currently, permanent housing plan is defined at 44 CFR 206.111 to mean a realistic plan that, within a reasonable timeframe, puts the disaster victim back into permanent housing that is similar to the victim's pre-disaster housing situation. A reasonable timeframe includes sufficient time for securing funds, locating a permanent dwelling, and moving into the dwelling.

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Voluntary Agency Liaisons establish and maintain relationships among Federal and SLTT governments, as well as voluntary, faith-based and community organizations active in preparedness, response, and recovery; coordinate with Voluntary Organizations Active in Disaster at the national,

State, Territorial, Tribal, and local levels; assist with translating and navigating Federal programs for their stakeholders; provide technical guidance and support with donations, unaffiliated and spontaneous volunteer management; and collaborate with and support non-government organizations that deliver an array of disaster relief services to affected jurisdictions.

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Direct Housing field operations coordinate with DCM and Voluntary Agency Liaisons by hosting regular roundtable discussions to discuss unmet needs and identify specific solutions for occupants to help them achieve their permanent housing plans.

Group Flood Insurance Policy

One commenter stated that the IA flood insurance requirements, which attaches to property rather than people, can be a burdensome expense for those on limited and fixed incomes.

119

The commenter also raised concern about FEMA's policy of determining an applicant ineligible for disaster assistance when they have failed to maintain flood insurance requirements established when the applicant received the initial FEMA financial assistance that triggered the flood insurance requirement. The commenter suggested FEMA consider extending group flood insurance coverage to poor communities beyond 36 months.

119

FEMA-2021-0011-0275.

FEMA does not have the authority to remove the flood insurance requirement absent a legislative change to the National Flood Insurance Act of 1968 (NFIA). Under the Flood Disaster Protection Act of 1973, FEMA may not approve any financial assistance for acquisition or construction purposes for use in any Special Flood Hazard Area (SFHA) where the sale of flood insurance has been made available under the NFIA, 42 U.S.C. 4001

et seq.,

unless the building or mobile home and any personal property to which such financial assistance relates is covered by flood insurance in an amount at least equal to its development or project cost. See 42 U.S.C. 4012a(a). As the commenter notes, this requirement to maintain flood insurance applies to the property, regardless of whether ownership is transferred.

While much of this comment touches on the National Flood Insurance Program (NFIP) and is outside the scope of this IA rulemaking,

120

FEMA understands that flood insurance policies may be cost prohibitive for some disaster survivors as they are trying to recover from a major disaster. A GFIP is a form of assistance that can help applicants who have trouble affording an initial flood insurance policy. FEMA establishes a GFIP for each disaster declaration that results from flooding and is authorized for IA. FEMA's existing regulations at 44 CFR 206.119(d) provide that individuals identified by FEMA as eligible for ONA as a result of flood damage caused by a Presidentially-declared major disaster and who reside in a SFHA may be included in a GFIP established under the NFIP regulations at 44 CFR 61.17.

120

FEMA is working on many rulemakings to help the public regarding the NFIP. See the following rules on FEMA's Unified Agenda (UA): 1) 1660-AB06, the

National Flood Insurance Program: Standard Flood Insurance Policy (SFIP), Homeowner Flood Form

. This rule would revise the SFIP by adding a new Homeowner Flood Form and five accompanying endorsements. The new Homeowner Flood Form would replace the Dwelling Form as a source of coverage for homeowners of one-to-four family residences. Together, the new Form and endorsements would more closely align with property and casualty homeowners' insurance and provide increased options and coverage in a more user-friendly and comprehensible format. 2) 1660-AB11,

NFIP's Floodplain Management Standards for Land Management & Use, & an Assessment of the Program's Impact on Threatened and Endangered Species & Their Habitats

. FEMA issued a Request for Information to receive the public's input on revisions to the NFIP's floodplain management standards for land management and use regulations. FEMA's authority under the NFIA requires the agency to, from time to time, develop comprehensive criteria designed to encourage the adoption of adequate State and local measures. The agency is reviewing potential actions to better align the NFIP minimum floodplain management standards with our current understanding of flood risk, flood insurance premium rates, and risk reduction approaches to make communities safer, stronger, and more resilient to increased flooding. FEMA is considering revisions to the minimum standards to better protect people and property in a nuanced manner that balances community needs with the national scope of the NFIP while also incorporating opportunities for improving resilience in communities that have been historically underserved. The agency is also reviewing ways to further promote enhanced resilience efforts through the Community Rating System and to strengthen NFIP compliance with Section 7 of the Endangered Species Act.

Per IAPPG 1.1, FEMA directly purchases GFIP certificates on behalf of applicants who are required to purchase and maintain flood insurance but who may not otherwise be able to purchase a policy. This assistance is provided as a part of the effort to reduce future expenses from floods. As required by existing regulations at 44 CFR 206.119(a), applicants must apply for and be denied an SBA loan before receiving a GFIP certificate under ONA. This rule will remove this SBA requirement, which increases the number of applicants in SFHAs that are eligible to receive a 3-year policy from FEMA following a flood disaster.

121

An applicant who accepts an SBA loan with a flood insurance requirement will not be considered for a FEMA-purchased GFIP certificate in the same disaster as an applicant cannot hold two flood insurance policies on one property.

Habitability

A few commenters raised issues regarding the definition of “uninhabitable,” recommending that FEMA should revise the definition to ensure it meets the needs of all disaster survivors and underserved communities.

122

One commenter stated that FEMA defines “uninhabitable” as a dwelling that is not safe, sanitary, or fit to occupy, but that FEMA has no published standard that establishes when a home is “safe, sanitary, and functional.” This commenter stated FEMA must clearly define what constitutes a “safe, sanitary, and functional home.”

123

Another commenter stated that if a residence is deemed “safe to occupy” the applicant will be denied IHP assistance, as it is presumed habitable, and that “One Size Fits All” Habitability Standard is built on the faulty assumption that what is safe to occupy for one is safe to occupy for all.

124

This commenter also noted that following Hurricane Harvey, FEMA did not consider the presence of mold as a condition which would prevent safe occupation; therefore, many were denied assistance. Another commenter argued that part of the reason for fewer awards to low-income disaster survivors is likely based on the implicit bias and inadequate training of its inspectors but also that part of the reason lies in FEMA's standards for determining when a disaster survivor's home is “safe to occupy.”

125

This commenter also noted that despite applicants living in homes with blue-tarped roofs, buckled floors, nonexistent foundations, destroyed septic systems, and gaping holes, they were denied assistance as their dwelling

was determined “safe to occupy.” Lastly, another commenter stated that FEMA lacks ascertainable standards for equitable and impartial distribution of Home Repair Assistance, which results in arbitrary, subjective decisions about who gets Home Repair Assistance and how much assistance is provided in each case.

126

122

FEMA-2021-0011-0260, FEMA-2021-0011-0152, and FEMA-2021-0011-0286.

123

FEMA-2021-0011-0295.

124

FEMA-2021-0011-0152.

125

FEMA-2021-0011-0286.

126

FEMA-2021-0011-0310.

Section 408 of the Stafford Act, 42 U.S.C. 5174, authorizes FEMA to provide Housing Assistance to applicants who, as a direct result of a major disaster, are displaced from their pre-disaster primary residences or are left with pre-disaster primary residences that are “uninhabitable” or, with respect to individuals with disabilities, are “uninhabitable or inaccessible.” FEMA's regulations at 44 CFR 206.111 defines “uninhabitable” as a dwelling that is not “safe, sanitary or fit to occupy.” FEMA's regulations at 44 CFR 206.111 further defines “safe” and “sanitary,” but does not define “fit to occupy.” “Safe” means secure from disaster-related hazards or threats to occupants; “sanitary” means free of disaster-related health hazards.

FEMA recognizes that current regulations limit assistance to applicants with residences that incurred disaster-caused damage falling short of immediate safety and sanitation concerns and prevents FEMA from addressing or assessing the general livability issues when determining Housing Assistance eligibility, and is making changes that are expected to address these concerns. FEMA is revising the term “uninhabitable” to mean the dwelling is not safe or sanitary. FEMA is revising the term “safe” to mean secure from hazards or threats to occupants, and FEMA is revising the term “sanitary” to mean free of health hazards. FEMA is also removing the requirement for disaster-damaged real property components to be functional immediately before the disaster in order to provide assistance for pre-existing damage exacerbated by the disaster. This change will remove a discretionary element for inspectors that is not required by the Stafford Act.

127

As a result, applicants with minimal damage, who may be without the means to pay for minimal repairs, or who are unable to complete the work themselves, will be eligible for Home Repair Assistance.

127

In coordination with the publication of this rule, FEMA will ensure its training and instructional materials are updated to ensure all relevant FEMA staff are apprised of and are able to implement the changes.

Hazard Mitigation Under IHP

Eleven commenters stated that FEMA should allow recovery funds to be used toward making resilient upgrades that offer greater protection against future disasters, with one commenter specifically noting that this would be particularly helpful in flood prone areas.

128

Another commenter noted the recent changes made to IHP assistance provide funds toward hazard mitigation measures; however, they stated that these funds are specifically for wind and flood events. This commentor believed that these funds should also be extended to wildfire and earthquake events.

129

128

FEMA-2021-0011-0151, Attachment 1; FEMA-2021-0011-0206; FEMA-2021-0011-0209; FEMA-2021-0011-0221; FEMA-2021-0011-0224; FEMA-2021-0011-0237; FEMA-2021-0011-0270; FEMA-2021-0011-0271; FEMA-2021-0011-0278; FEMA-2021-0011-0285; and FEMA-2021-0011-0303.

129

FEMA-2021-0011-0261. At the time of this comment, FEMA was only providing hazard mitigation assistance for items in wind and flood events. However, in August of 2022, FEMA added two fire-specific hazard mitigation items,

i.e.,

covering for attic vents, crawlspace vents, and vents in enclosures below decks and non-combustible gutter and leaf guards. FEMA continues to explore hazard mitigation under the IHP to include funds for additional mitigation measures, some targeted toward additional disaster causes.

FEMA recognizes that helping disaster survivors address hazard mitigation measures while repairing their homes from disaster damage will help make their homes more resilient. Therefore, using our authority under Section 408(c)(2)(A)(ii) of the Stafford Act, 42 U.S.C. 5174(c)(2)(A)(ii), FEMA began including additional assistance for mitigation in Home Repair Assistance awards for disasters declared on or after May 26, 2021.

130

See pages 86-88 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf

Prior to this IFR, hazard mitigation under IHP is awarded as part of Home Repair Assistance for specific real property components that existed and were functional prior to the disaster—roof, water heater, furnace, and main electrical panel.

131

Hazard mitigation measures are intended to minimize future damage to owner-occupied residences and are subject to the IHP maximum amount of Home Repair Assistance. FEMA plans to expand hazard mitigation under IHP in the future to include funds for additional mitigation measures, some targeted toward additional disaster causes.

131

Prior to this IFR, in order to receive IHP assistance toward hazard mitigation efforts, the component needs to have been functional prior to the disaster.

This IFR will allow FEMA to include mitigation for components that were not functional prior to the disaster when the damage to the component is worsened by the disaster.

Home Repair Assistance

Seven commenters raised concern regarding FEMA's delivery of Home Repair Assistance,

132

specifically focusing on how FEMA addresses pre-existing damage.

132

FEMA-2021-0011-0033, FEMA-2021-0011-0149, FEMA-2021-0011-0194, FEMA-2021-0011-0199, FEMA-2021-0011-0245, FEMA-2021-0011-0277, and FEMA-2021-0011-0310.

Per Section 408 of the Stafford Act, 42 U.S.C. 5174, FEMA may provide financial assistance for the repair of owner-occupied private residences, utilities, and residential infrastructure (such as a private access routes) damaged by a major disaster to a safe and sanitary living or functioning condition; and eligible hazard mitigation measures that reduce the likelihood of future damage to such residences, utilities, or infrastructure.

As part of this rule, FEMA is removing the requirement for real property components to be functional immediately before the disaster to provide assistance for pre-existing damage that has been further damaged by the disaster. When a component of the home with pre-existing damage is further damaged by the disaster, FEMA may provide assistance to fully repair or replace the item (as appropriate) rather than denying assistance solely because not all damage was caused by the disaster.

One comment suggested FEMA focus its efforts on providing permanent repairs to disaster-damaged homes using a sliding scale benefit.

133

FEMA has limited statutory authority to provide direct repairs via PHC—

i.e.,

per Section 408(c)(4) of the Stafford Act, 42 U.S.C. 5174(c)(4), FEMA may only provide financial assistance or direct assistance—in the form of direct repairs or new construction—to individuals and households to construct permanent or semi-permanent housing in insular areas outside the continental United States. or other areas where no alternative housing resources are available and other types of Temporary Housing Assistance are unavailable, infeasible, or not cost-effective. Because FEMA is authorized under statute to provide such assistance only in these limited circumstances, FEMA has only implemented this type of direct assistance twice before in the continental United States.

133

FEMA-2021-0011-0269.

Homelessness

Four commenters voiced concern over the lack of FEMA guidance to State, local, and Tribal governments on how to handle people experiencing homelessness during a disaster, the lack of resources available for people experiencing homelessness during or after a disaster, and the need for more programs dedicated to those experiencing homelessness.

134

FEMA-2021-0011-0235, FEMA-2021-0011-0277, FEMA-2021-0011-0295, and FEMA-2021-0011-0310.

Per Section 408(a)(1) of the Stafford Act, 42 U.S.C. 5174(a)(1), FEMA's IHP assistance is intended to assist with disaster-caused losses; therefore, issues related to pre-disaster homelessness are outside the scope of the program. FEMA does not provide Housing Assistance (Rental Assistance, Direct Assistance, Home Repair Assistance, or Home Replacement Assistance) to applicants experiencing pre-disaster homelessness if their need for housing or shelter was not caused by the disaster. However, applicants experiencing pre-disaster homelessness may be eligible for certain types of ONA (Transportation Assistance, Medical and Dental Assistance, Funeral Assistance, and Child Care Assistance). Further, applicants whose pre-disaster residence was a tent or other form of nontraditional housing could be considered for limited housing assistance (2-month initial Rental Assistance and Lodging Expenses Reimbursement) if a public official or homelessness advocate verifies a disaster survivor's occupancy and if that individual meets all other eligibility requirements.

While FEMA may be limited in the types of assistance it can provide to pre-disaster homeless individuals, there are other Federal, State, or local government resources that are more readily available for this population,

e.g.,

HUD's Emergency Solutions Grants Program or HUD's Rapid Unsheltered Survivor Housing Program.

Applicants experiencing homelessness as a result of the disaster—for example, those whose pre-disaster residences were destroyed due to a disaster—may be considered for various types of financial Housing Assistance to include Lodging Expense Reimbursement, Rental Assistance, Home Repair Assistance, and Replacement Assistance, to meet their disaster housing needs. Additionally, if a direct housing mission is approved for the disaster, they could be eligible for a direct housing unit depending on the level of damage incurred to their pre-disaster residence and on whether they have not been able to use any FEMA-provided Rental Assistance.

IHP File

A few commenters raised issues regarding FEMA's process for applicants to request a copy of their IHP file, stating that it is unnecessarily complex.

135

One commenter argued that it is excessive and unnecessarily burdensome to require applicants to obtain notary signatures or provide the penalty of perjury statement in order to access their IHP file. This commenter reasoned that IHP file information should be accessible through one online portal.

136

Another commenter argued that when applicants request a copy of their file, FEMA does not provide access to all specific information used to make FEMA's decision such as pictures, home and property damage descriptions, and eligibility decisions, including include how FEMA calculates the awards and inspection line-item pricing. This commentor also noted that to access this type of information, applicants must file a Freedom of Information Act request.

137

Lastly, one commenter stated that FEMA should develop a streamlined process including a central point of contact for State-led agencies and other disaster relief organizations to obtain applicant information required to provide further recovery assistance years following the disaster declaration.

138

135

FEMA-2021-0011-0149 and FEMA-2021-0011-0277.

136

FEMA-2021-0011-0149.

137

FEMA-2021-0011-0295.

138

FEMA-2021-0011-0275.

There are multiple statutes which govern what information FEMA may collect and how that information may be shared. The Stafford Act allows FEMA to collect personal information to determine eligibility and administer FEMA disaster assistance as a result of an emergency or a Presidentially declared disaster. See 42 U.S.C. 5121-5207.

As outlined on page 67 of IAPPG 1.1, applicants may submit a written, signed request for a copy of FEMA's records related to their registration for IHP assistance.

139

The request must specifically state what information the applicant would like to receive (

e.g.,

entire file copy, copy of all correspondence from FEMA, etc.)

140

and who is to receive the requested information (

e.g.,

self, attorney, friend, etc.). For identity verification purposes, the request must include, among other requirements, the applicant's signature with either a notary stamp or seal or the statement: “I hereby declare under penalty of perjury that the foregoing is true and correct.” Applicants have the ability to create an online account, via

www.DisasterAssistance.gov,

where they may access a high-level overview of their application, including eligibility determinations and letters provided by FEMA, upload documentation, and change some information. Current system limitations prevent FEMA from including information such as pictures, home and property damage descriptions, and inspection line-item pricing. However, FEMA is developing a new system with increased capabilities.

141

Once such increased capabilities are developed, nothing in this rule will prevent FEMA from implementing them. Information on how FEMA calculates awards and determines eligibility are available to the public via the IAPPG.

139

Applicants may alternatively choose to complete, sign, and return the Authorization for the Release of Information Under the Privacy Act form (OMB No. 1660-0061) to request a copy of their file and authorize the release of information.

140

Note that line-item pricing is not part of an applicant's IHP file and therefore is not included in requests for copies of IHP files. While NEMIS can provide a summary of the items viewed or noted during inspection, it does not include the line-item pricing.

141

FEMA is in the very early stages of the Systems Engineering Lifecycle and Acquisition process. The Agency is working to complete all requisite documentation needed for gate reviews, and have requested funding via the Program Decision Option process to support completely modernizing the functionality currently provided by the legacy on-premises NEMIS-IA system. This will be a multi-year effort.

FEMA continues to work alongside its State, local, Tribal and Territorial partners to ensure that disaster recovery resources and services are not delayed or hindered by data collection and sharing concerns. Following a disaster, FEMA establishes a Joint Field Office (JFO), which is the appropriate central point to work with the State and disaster-relief organizations for the disaster. Once the JFO closes, those duties would devolve to the FEMA Region, unless a long-term field office is set up to handle disaster-related concerns. FEMA has processes in place to assist States, Tribes, and Territories with information sharing. These entities work with the FEMA staff assigned to coordinate with them for a specific disaster. This is the standard process that FEMA utilizes when responding to disaster-specific requests of all types from States, Tribes, and Territories.

Insurance

One commenter stated that the Stafford Act needed to be amended so that Federal assistance would not be considered a duplication of benefits

with received insurance proceeds.

142

Statutory changes are outside the scope of this rulemaking.

142

FEMA-2021-0011-0153.

Loss Verification

Twenty-three comments were received regarding FEMA's loss verification methods,

143

referencing FEMA's inspection process and describing it as slow, subject to human error, costly, and disproportionally impacting historically disadvantaged populations. While three commenters stated FEMA should utilize more geospatial technology or develop remote technology capabilities, one commenter

144

noted concern over the remote inspector process established by FEMA during COVID-19, stating that it disadvantaged disaster survivors by creating additional documentation burdens, which particularly impacted those who were least able to access technology or local assistance. Another commenter noted their concern that the loss verification process prioritized property values rather than examining the full impact of the housing loss, thereby adversely impacting whether an applicant would be considered eligible for Direct Housing Assistance. Lastly, one commenter specifically stated that FEMA, during inspection, should count damages to mobile homes as personal property losses.

143

FEMA-2021-0011-0033, FEMA-2021-0011-0147, FEMA-2021-0011-0151, FEMA-2021-0011-0153, FEMA-2021-0011-0159, FEMA-2021-0011-0162, FEMA-2021-0011-0163, FEMA-2021-0011-0169, FEMA-2021-0011-0199, FEMA-2021-0011-0206, FEMA-2021-0011-0208, FEMA-2021-0011-0221, FEMA-2021-0011-0256, FEMA-2021-0011-0261, FEMA-2021-0011-0270, FEMA-2021-0011-0271, FEMA-2021-0011-0275, FEMA-2021-0011-0277, FEMA-2021-0011-0282, FEMA-2021-0011-0285, FEMA-2021-0011-0295, FEMA-2021-0011-0302, and FEMA-2021-0011-0310.

144

FEMA-2021-0011-0169.

Once disaster survivors register for assistance, FEMA is required to verify losses to determine their eligibility for IHP assistance. FEMA uses multiple loss verification methods, including onsite and geospatial inspections as well as submitted documentation. FEMA may, at its discretion, determine other methods of verification (

i.e.,

remote inspections) that will be used to help verify loss and deliver assistance.

145

FEMA may also review and verify documentation for disaster-caused losses that cannot be verified through on-site or geospatial inspections.

145

FEMA uses a variety of techniques and technologies when conducting geospatial inspections. This includes using aerial and satellite photography and remote sensing technologies. For remote inspections, FEMA inspectors will contact applicants via phone and complete the standard onsite inspection process remotely based on responses from the applicant.

FEMA inspectors are trained to identify post-disaster damage and record all appropriate evidence of any disaster damage. Home and/or property values are not considered during damage verification. While there are numerous checks and balances in place to verify consistent and accurate damage assessments, FEMA continues to explore ways to improve its loss verification methods.

Per IAPPG 1.1, FEMA may provide financial assistance to repair an owner-occupied primary residence, utilities, and residential infrastructure, including private access routes damaged as a result of a Presidentially-declared disaster up to the financial Housing Assistance maximum award. Home Repair Assistance is intended to make the damaged home safe, sanitary, or functional. Damage to real property components of the applicant's home is addressed under the IHP's Home Repair Assistance, regardless of the type of home. Mobile homes have unique real property components, and damage to these items are captured during inspection. Personal Property is not dependent on the type of home and is recorded under ONA.

Multifamily Lease and Repair

One commenter stated that FEMA should make more effort to aid residents of multifamily housing units in the wake of disasters.

146

FEMA-2021-0011-0268.

Section 408 of the Stafford Act, 42 U.S.C. 5174, limits IHP assistance to individuals and households;

147

therefore, in situations where multifamily housing units, such as a condominium, are damaged by a disaster, FEMA only provides financial Housing Assistance and ONA to owner-occupants for eligible disaster-caused damages to areas the owner is responsible for within their unit. These types of assistance do not cover repair for disaster-caused damage to multifamily housing units for structural elements (

e.g.,

roof, exterior walls, chimneys, and shared foundation) and common areas shared by all residents such as recreational facilities, outdoor space, parking, landscaping, fences, laundry rooms, and all other jointly-used space, unless these spaces are the individual's responsibility.

147

44 CFR 206.113(b)(9) further limits assistance by stating that FEMA may not provide IHP assistance for business losses, including farm businesses and self-employment.

FEMA may provide Direct Temporary Housing Assistance to eligible applicants in the form of temporary rental units made available through repairs or improvements to existing, vacant multifamily housing units (

e.g.,

apartments). Under the Multifamily Lease and Repair program, FEMA may enter into lease agreements with owners of multifamily properties located in a disaster area and make repairs or improvements (including to structural elements and common areas of the multifamily properties) to provide temporary housing to eligible applicants. FEMA may utilize units repaired or improved under Multifamily Lease and Repair as temporary housing for eligible applicants who are unable to use Rental Assistance due to a lack of available resources. This type of Direct Temporary Housing Assistance is intended to repair or improve individual units to re-house existing tenants.

148

For additional information about Multifamily Lease and Repair, please see pages 107 to 112 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

Non-Traditional Housing

One commenter stated that FEMA does not recognize applicants who live in non-traditional housing such as “boats, yurts, and travel trailers.” The commentor requested that FEMA consider these as viable places of residence and recognize them for compensation.

149

FEMA-2021-0011-0149.

Per Chapter 3: II.B.

10.

of IAPPG 1.1,

150

eligible applicants who live in travel trailers and boats may be eligible for Home Repair Assistance and Home Replacement Assistance. Applicants residing in yurts and other unique homes may also receive Home Repair Assistance for any damaged structural elements of the home. However, Home Repair Assistance and Home Replacement Assistance is not available for other non-traditional forms of housing if they do not have structural elements to assess and calculate a repair or replacement award

(e.g.,

tents). By policy, FEMA defines non-traditional housing as a form of dwelling void of structural floor, structural walls, and structural roof. Applicants who reside in non-traditional housing who are able to verify occupancy may be eligible for initial Rental Assistance, Lodging Expense Reimbursement, and all types of Other Needs Assistance.

150

See page 62 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

Ownership/Occupancy

All 26 comments received regarding FEMA's verification of applicant ownership and/or occupancy of their

disaster-damaged dwelling were consistent with one concern: the applicant's burden of proving ownership and/or occupancy, especially in relation to properties being passed down via heirship.

151

FEMA-2021-0011-0033, FEMA-2021-0011-0149, FEMA-2021-0011-0153, FEMA-2021-0011-0163, FEMA-2021-0011-0194, FEMA-2021-0011-0199, FEMA-2021-0011-0207, FEMA-2021-0011-0235, FEMA-2021-0011-0236, FEMA-2021-0011-0245, FEMA-2021-0011-0255, FEMA-2021-0011-0259, FEMA-2021-0011-0260, FEMA-2021-0011-0261, FEMA-2021-0011-0265, FEMA-2021-0011-0273, FEMA-2021-0011-0275, FEMA-2021-0011-0276, FEMA-2021-0011-0277, FEMA-2021-0011-0282, FEMA-2021-0011-0286, FEMA-2021-0011-0293, FEMA-2021-0011-0302, FEMA-2021-0011-0305, FEMA-2021-0011-0306, and FEMA-2021-0011-0310.

Per IAPPG 1.1, FEMA verifies occupancy through an automated public records search or submitted documents. In locations where automated verification of public records is limited, FEMA may partner with applicable authorities from the State, local, Tribal, or Territorial government to verify ownership or occupancy. When FEMA is unable to verify an applicant's occupancy of their disaster-damaged primary residence, the applicant may provide FEMA with documentation for verification. Based on comments submitted via the April 22, 2021 RFI, FEMA updated its automated public records criteria along with its policy to provide more documentation flexibilities for verifying occupancy. Specifically, as outlined in the

Amendment to FEMA Policy (FP) 104-009-03, Individual Assistance Program and Policy Guide (IAPPG), Version 1.1

memorandum, dated September 2, 2021, FEMA will now accept social service organization documents, local school documents, Federal or State benefit documents, motor vehicle registration, affidavits of residency or court documentation, and mobile home park documents in addition to the documentation options listed in IAPPG 1.1 to verify occupancy. Furthermore, as an option of last resort, FEMA may accept a written self-declarative statement from applicants whose pre-disaster residence was a mobile home or travel trailer or from applicants living in insular areas, islands, and Tribal lands.

Like occupancy, when FEMA is unable to verify an applicant's ownership of their primary residence, the applicant may provide FEMA with documentation to prove ownership. Based on comments submitted via the RFI, FEMA also updated its policy to provide more documentation flexibilities in order to verify ownership. Specifically, as outlined in the

Amendment to FEMA Policy (FP) 104-009-03, Individual Assistance Program and Policy Guide (IAPPG), Version 1.1

memorandum, dated September 2, 2021, FEMA will now accept receipts for major repairs or improvements, mobile home park letters, court documents, and a public official's letter in addition to the documentation options listed in IAPPG 1.1 to verify ownership. Furthermore, as an option of last resort, FEMA may accept a written self-declarative statement from applicants whose pre-disaster residence was a mobile home or travel trailer, from applicants living in insular areas, islands, and Tribal lands, and from applicants whose pre-disaster residence was passed down via heirship.

152

Please see FEMA's Equity web page at Equity |

FEMA.gov

(last visited July 2, 2022.)

Both occupancy and ownership verification may be completed upon inspection if the applicant is able to show an acceptable document to the inspector. FEMA inspectors, however, will not accept self-declarative statements; this option of last resort must be mailed, uploaded to the applicant's online account, or submitted in person at a DRC.

153

For those applicants who are still unable to prove occupancy and ownership, FEMA will conduct proactive outreach via casework to ensure all eligible applicants are able to receive assistance.

153

FEMA inspectors do not have the ability to upload documentation into an applicant's file. Applicants may submit a self-declarative statement to FEMA by either mail, uploading the document into their online

www.disasterassistance.gov

account, or by visiting a DRC, where a FEMA employee may upload the document into their file.

Period of Assistance

Five commenters requested that the current period of assistance be extended or for there to be options in which it could be extended on an individual disaster basis.

154

One of the commenters stated that some applicants who received FEMA assistance to fix their homes had contractors take money for the repairs but not complete the work, that FEMA should take on the burden of the lost money, or otherwise ensure that the work is properly completed, and that assistance from FEMA should only be complete when the people in a household are fully, safely housed again.

155

154

FEMA-2021-0011-0153, FEMA-2021-0011-0163, FEMA-2021-0011-0253, FEMA-2021-0011-0274, and FEMA-2021-0011-0277.

155

FEMA-2021-0011-0274.

Section 408(c)(1)(B)(iii) of the Stafford Act, 42 U.S.C. 5174(c)(1)(B)(iii), limits IHP assistance to 18 months following the date of the disaster declaration. The period of assistance begins at the date of the Presidential disaster declaration and not the date on which the disaster is designated for IA. FEMA may extend the period of IHP assistance beyond 18 months due to extraordinary circumstances if an extension would be in the public interest, and FEMA has implemented this authority when warranted.

156

As the period of assistance is established in statute, it cannot be addressed in this rulemaking effort.

156

The President has delegated authority to the Administrator of FEMA to determine whether due to extraordinary circumstances an extension of IHP assistance beyond the 18-month limit would be in the public interest. See 42 U.S.C. 5174(c)(1)(B)(iii). Executive Order 12148, Federal Emergency Management, July 20, 1979 and Department of Homeland Security Delegation 9001.1. The FEMA Administrator has delegated authority to the Assistant Administrator for the Recovery Directorate to extend this period if they determine that due to extraordinary circumstances an extension would be in the public interest. See 44 CFR 206.110(e) and section G.4. of the Federal Emergency Management Agency (FEMA) Delegation Number: FDA 112-002a-1 Issue Date: Oct. 30, 2020.

FEMA assistance is intended for disaster caused losses. Disputes between contractors and individuals are private civil matters, in which FEMA has no authority to intercede. These should be addressed by the applicant through appropriate legal channels.

Rental Assistance

One commenter stated that FEMA must include clear guidance in its policies to ensure that multifamily homes are treated in a fair and equitable manner, including expanding the definition of “household” so that multiple families in one housing unit are counted as separate households for purposes of calculating aid and are eligible for separate rental assistance when needed.

157

This situation is addressed in current FEMA policy.

158

FEMA may provide financial assistance to pre-disaster homeowners or renters to rent alternate housing if they are displaced from their primary residence as a result of a Presidentially-declared disaster. While FEMA typically will award Rental Assistance to the first individual who registers for the household, if a multifamily household is unable to relocate together due to extenuating circumstance, then FEMA may provide additional Rental Assistance to the other members of the household. Additionally, through this rule, FEMA is adding a new type of assistance—Displacement Assistance—that will provide an additional resource to applicants who must temporarily

relocate from their home as the result of damage from a Presidentially-declared disaster. Displacement Assistance will be an award amount based on the daily rate established by the STT government and is intended to provide flexibility for applicants to address their short-term lodging needs via hotels, motels, friends and family, or other available options.

157

FEMA-2021-0011-0295.

158

See page 57 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

Another commenter stated that it is common in Puerto Rico for multiple homes to be built on a single lot and to have the same address and that this leads to a denial of assistance for the second family to apply due to suspected duplication of benefits.

159

Although FEMA did previously encounter difficulties distinguishing between separate homes on a single lot due to system limitations and lack of available third-party data, we now have a better understanding of these arrangements and have improved our processes

160

to ensure the appropriate assistance is provided to each family when FEMA can determine two separate homes exist and the applicants meet all other eligibility criteria.

159

FEMA-2021-0011-0292.

160

There are processes available in these types of unique situations where multiple households reside in the same house or there are multiple separate homes on the same property. In the case of multiple separate homes on the same property, applicants must demonstrate that the homes are separate structures, and for multiple households in the same home, they must demonstrate that they have a pre-disaster financial responsibility to the household, such as a formal agreement supported by pre-disaster rent receipts, cancelled checks, or money orders; pre-disaster lease, landlord's written or verbal statement, or rental agreement; or pre-disaster major utility bills.

Renter Assistance

Ten commenters stated that FEMA assistance is prioritized for homeowners and that programs and services need to be expanded to include renters and/or provide more assistance programs to benefit renters.

161

One commenter stated that FEMA should afford minority and poor families the opportunity to move to neighborhoods that are safer, the schools are better, and jobs are more available.

162

This commenter also suggested that the choice of where to live must be built into FEMA housing programs. Another commenter stated that FEMA provides assistance for hotel stays, but there are not many programs that provide rental assistance, security deposits, and application fees for survivors that have to relocate.

163

This commenter also stated that providing flexible funding for renters to replace appliances, furniture, clothing, and other necessary goods would be more beneficial. One commenter stated that the application for continuing Rental Assistance is onerous and difficult for survivors to complete. Further, applicants must continue to work toward obtaining permanent housing to remain eligible for continuing rental assistance.

164

161

FEMA-2021-0011-0293, FEMA-2021-0011-0271, FEMA-2021-0011-0270, FEMA-2021-0011-0285, FEMA-2021-0011-0206, FEMA-2021-0011-0209, FEMA-2021-0011-0221, FEMA-2021-0011-0262, FEMA-2021-0011-0274, and FEMA-2021-0011-0187.

162

FEMA-2021-0011-0199.

163

FEMA-2021-0011-0275.

164

FEMA-2021-0011-0295.

A few commenters suggested that FEMA should partner with HUD to design resilient and affordable housing relocation solutions and follow a similar approach to HUD's Community Development Block Grant—Disaster Recovery (CDBG-DR) program for clients who want to remain in their communities while reducing disaster risk.

165

Lastly, two commenters suggested longer-term, safe housing solutions that are affordable to renters, arguing that once the funds are exhausted for renters, FEMA transitional services are not timely or are complex processes causing victims to experience a period of homelessness.

166

165

FEMA-2021-0011-0231, and 0264.

166

FEMA-2021-0011-0256, and 0296.

Some of these comments misconstrue FEMA policy. Per Section 408 of the Stafford Act, 42 U.S.C. 5174, FEMA may only provide financial assistance to repair an owner-occupied primary residence, utilities, and residential infrastructure, including private access routes damaged as a result of a Presidentially-declared disaster. FEMA does not have the authority to provide repair assistance to renters or landlords not occupying the damaged property as their primary residence.

Section 408 of the Stafford Act, 42 U.S.C. 5174, also states that FEMA may provide financial assistance,

i.e.,

Rental Assistance, to pre-disaster homeowners or renters to rent alternate temporary housing if they are displaced from their primary residence as a result of a Presidentially-declared disaster. FEMA may also provide Continued Temporary Housing Assistance (CTHA) to eligible applicants who exhausted previously awarded Rental Assistance (for its intended use), are unable to return to their pre-disaster residence because it is uninhabitable, inaccessible, or not available due to the disaster, and their post disaster housing costs represent 30 percent or more of their post-disaster household income.

167

This assistance may be provided for up to 18 months or until the end of the 18-month period of assistance, whichever comes first.

168

FEMA will also award applicants one additional month of rent when utilized for a security deposit. FEMA does not dictate where renters may choose temporary housing; rather, renters may choose where to live. Addressing the suggestion that FEMA partner with HUD to design a CDBG-DR equivalent, FEMA notes that HUD is a separate Federal agency with separate statutory authorities that differ from FEMA's both in terms of the structure of the Agency's programs and the objectives of those programs. Such a change is outside the scope of this rulemaking. However, FEMA is currently working with HUD on several housing issues in an effort to make better use of each agency's authorities in support of disaster survivors.

167

See page 81 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

168

FEMA may certify pre-disaster renters, up to 18-months or the end of the 18-month period of assistance, whichever comes first, for continued rent assistance when adequate, alternate housing is not available, or when they have not realized a permanent housing plan through no fault of their own. FEMA may certify pre-disaster owners for continued rent assistance, up to 18-months or the end of the 18-month period of assistance, whichever comes first, when adequate, alternate housing is not available, or when they have not realized a permanent housing plan through no fault of their own.

FEMA agrees that renters should have equitable access to IHP financial assistance. One type of assistance renters may currently qualify for is Personal Property Assistance. Under Section 408(e)(2) of the Stafford Act, 42 U.S.C. 5174(e)(2), FEMA may provide financial assistance under the ONA provision of the IHP to repair or replace personal property damaged or destroyed due to a disaster. FEMA assistance to repair and replace personal property may be provided for: appliances (standard household appliances such as refrigerator, washing machine, etc.); clothing (essential clothing needed due to overall loss, damage, or contamination); room furnishings (standard furnishings found in a bedroom, kitchen, bathroom, and living room); and essential tools (tools and equipment required by an employer for employment and items required for education).

Additionally, FEMA is committed to improving its Renter Assistance program in those areas where equity may be lacking. For example, as part of this rule, FEMA is broadening the IHP to encompass any damage to the applicant's primary residence that causes the home to be unsuitable for occupancy. This change allows more renters with minimal damages to qualify

for Rental Assistance if they must relocate for a short time while repairs are made to their apartment.

As is discussed further below, FEMA is removing the requirement that applicants must apply and be denied for an SBA disaster loan before being considered for SBA-dependent ONA. Applicants may apply for an SBA loan for additional funds if they have an unmet need, but eligibility for Personal Property Assistance, Transportation Assistance, and Group Flood Insurance Policies will no longer be contingent on applying for and being denied for an SBA loan making them available to more renters.

Another example of how FEMA is making strides towards equity involves regulatory updates to CTHA. The rule update will add flexibility regarding FEMA's ability to provide some continued assistance without requiring substantial documentation from the applicant. FEMA is also making updates to its CTHA policy and the Application for CTHA forms so that applicants have a better understanding of what documentation is needed at each step of the process. Plus, the applicant having to work toward obtaining permanent housing in order to remain eligible for continued rental assistance increases the likelihood of successful recovery outcomes.

In addition, FEMA is implementing two new types of assistance, Serious Needs Assistance and Displacement Assistance. Serious Needs Assistance will provide funds to address immediate needs related to sheltering, evacuation, or other emergent disaster expenses. Displacement Assistance is intended to assist displaced applicants with the cost of short-term living arrangements immediately following a disaster.

SBA-Dependent ONA

The majority of commenters who commented on this requirement raised the same concern: FEMA should remove the requirement for applicants to apply for and be denied an SBA loan before receiving consideration for IA grants. The commenters stated the process is unclear and places an unnecessary burden on applicants; creates a disproportionate barrier; and may, at best, lead to a delay in the registration process, or, at worst, effectively block access to the grants.

169

Two commenters further expressed that forcing people to apply for an SBA loan after the initial registration is a barrier and deterrent to applying for help, especially in senior citizen communities as they do not want a loan and most are on a fixed income; for black disaster survivors who face their credit history being scrutinized without receiving tangible assistance; and for renters with low incomes, and for members of underserved communities, including people of color, who, many times, have a greater need than middle-income survivors.

170

Another commenter argued that FEMA should automatically qualify the application and denial steps of the SBA process for individuals who already receive needs-based assistance such as food stamps, Supplemental Security Income, and Social Security Disability Income to allow the most vulnerable to receive assistance more quickly and easily.

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A few commenters offered solutions, such as that FEMA actively coordinate with the SBA to conduct pre-screening using SBA's established credit score and citizenship requirements before referring applicants to the SBA, and that FEMA's staff receive training on SBA-related issues and be able to answer questions about any aspect of the SBA's process.

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One commenter stated that FEMA underassesses the needs of renters with low-incomes, and for members of underserved communities, including people of color, who seek to recover damaged personal property and vehicles by first requiring an application for an SBA loan, which causes delays in their application process.

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Lastly, one commenter remarked that requiring an SBA loan denial as a prerequisite to receiving emergency aid burdens the applicant and paves the way for deeper poverty for survivors of natural disasters. This commentor further explained their perception that the ease to extend debt instruments (

i.e.,

an SBA loan) is in stark contrast to the denial of assistance due to the lack of legal documentation or a means to fight unjust denials.

174

169

FEMA-2021-0011-0245, FEMA-2021-0011-0251, FEMA-2021-0011-0255, FEMA-2021-0011-0275, and FEMA-2021-0011-0277.

170

FEMA-2021-0011-0245 and FEMA-2021-0011-0277.

171

FEMA-2021-0011-0245.

172

FEMA-2021-0011-0255 and FEMA-2021-0011-0275.

173

FEMA-2021-0011-0277.

174

FEMA-2021-0011-0306.

FEMA's current regulations under 44 CFR 206.119(a)(1)-(3) state that FEMA and the State may provide financial assistance to individuals and households who have other disaster-related necessary expenses or serious needs. Prior to this IFR, to qualify for assistance under this section, an applicant must also apply to the SBA Disaster Home Loan Program for all available assistance under that program; and be declined for SBA Disaster Home Loan Program assistance; or demonstrate that the SBA assistance received does not satisfy their total necessary expenses or serious needs arising out of the major disaster. FEMA's current 44 CFR 206.191(d) provides FEMA's sequence of delivery to ensure uniformity in preventing duplication of benefits. The delivery sequence pertains to that period of time in the recovery phase when most of the traditional disaster assistance programs are available. The delivery sequence includes in relevant part Housing Assistance pursuant to Section 408 of the Stafford Act, 42 U.S.C. 5174; SBA and Farmers Home Administration

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disaster loans; and then ONA, pursuant to Section 408 of the Stafford Act, 42 U.S.C. 5174.

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The Farmers Home Administration is now administered by the successor agencies of the Farmers Home Administration. The Farmers Home Administration disaster loans are now the Department of Agriculture disaster loans.

Prior to this IFR, FEMA's regulations required SBA referrals, but FEMA only required applicants whose self-reported income meets the SBA's minimum income requirements to apply for and be denied an SBA disaster loan before receiving consideration for SBA-dependent ONA, in an effort to minimize the burden on and expedite assistance to applicants whose income did not meet SBA's minimum income requirements. Based on comments submitted via the RFI, the SBA, in coordination with FEMA, raised the minimum income threshold so that more eligible lower income applicants could be assisted by FEMA as opposed to referred to SBA for a loan.

With this rule, FEMA is removing the requirement entirely that applicants must apply and be denied for an SBA disaster loan before being considered for SBA-dependent ONA. Removing this requirement will ensure low income and other vulnerable disaster survivors who may not have the means to obtain or repay a disaster loan due to their financial condition have equitable access to disaster assistance while also leveraging new ways to prevent duplication of benefits.

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FEMA currently shares relevant data with the SBA, and will continue to do so to ensure FEMA and the SBA continue to remain good partners and stewards of taxpayer dollars. FEMA and the SBA will continue to coordinate to ensure that FEMA assistance and SBA disaster loans do not cause a duplication of benefits for the same type of assistance.

Just because an applicant already receives needs-based assistance such as food stamps, SSI, and SSDI does not mean that they will be eligible for FEMA assistance. The applicant will have to meet the IHP eligibility

requirements which have no link to income for the majority of IHP assistance. Therefore, FEMA cannot automatically qualify applicants for IHP assistance based upon their already receiving food stamps, SSI, and SSDI.

Self-Employed Workers

Two commenters stated that gig workers, artists, and other self-employed individuals do not receive the same assistance as other applicants.

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One of those commenters detailed that FEMA should correct the inequity by extending eligibility to self-employed individuals for necessary expenses and serious needs for repair or replacement of tools, specialized or protective clothing and equipment required by an employer as a condition of employment. The commenter also stated that FEMA could streamline the process to remove obstacles that delay assistance to self-employed workers by eliminating the FEMA requirement for applicants to first apply for and be denied an SBA disaster loan before self-employed workers are eligible for Personal Property Assistance for necessary expenses and serious needs.

178

177

FEMA-2021-0011-0187 and FEMA-2021-0011-0200.

178

FEMA-2021-0011-0200.

Prior to this IFR, per 44 CFR 206.113(b)(9), FEMA may not provide IHP assistance for business losses, including farm businesses and self-employment. Under current policy, self-employed individuals are eligible for FEMA assistance for their personal losses except for necessary expenses and serious needs related to business losses.

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Business losses include costs for essential tools, such as tool repair or replacement, computing devices, supplies, and uniforms, which may include specialized or protective clothing.

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See page 168 of IAPPG 1.1.

https://www.fema.gov/sites/default/files/documents/fema_iappg-1.1.pdf.

As part of this rule and in response to comments received during the Agency's RFI, FEMA is amending its regulations to allow FEMA to provide self-employed applicants with IHP financial assistance for necessary expenses and serious needs as it relates to self-employed applicants seeking assistance for the replacement of essential tools.

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FEMA is also adding a new definition at 44 CFR 206.111 of “essential tools” to mean tools and equipment required for employment and items required for education. The changes will allow FEMA to provide assistance for disaster-damaged tools and equipment, or other items required for a specific trade or profession, for self-employed applicants, in their individual capacity.

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For self-employed applicants FEMA is requiring a written statement from the applicant, including an itemized list of essential tools, specialized or protective clothing, computing devices, and equipment required for self-employment, and verifying their need for the items. The statement must include “I hereby declare under penalty of perjury that the foregoing is true and correct,” and be signed by the applicant. Tax return documentation are required to establish self-employment (

e.g.,

Form 1040 or 1040-SR, Schedule C, etc.).

In addition, this rule will remove the requirement for applicants to apply for and be denied an SBA loan before receiving ONA. For additional information, refer to the SBA-Dependent ONA discussion i

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