Update of FEMA's Public Assistance Regulations

Federal RegisterJul 2, 2024

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 206

[Docket ID FEMA-2023-0005]

RIN 1660-AB09

Update of FEMA's Public Assistance Regulations

AGENCY:

Federal Emergency Management Agency, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Federal Emergency Management Agency (FEMA, agency, or we) proposes to revise its Public Assistance program regulations to reflect current statutory authorities and implement program improvements. The proposed rule would incorporate changes brought about by amendments to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). FEMA is also proposing clarifications and corrections to improve the efficiency and consistency of the Public Assistance program.

DATES:

Comments must be submitted by September 3, 2024.

ADDRESSES:

You may submit comments, identified by Docket ID FEMA-2023-0005, via the Federal eRulemaking Portal:

www.regulations.gov.

Search for the Docket ID and follow the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT:

Robert Pesapane, Director, Public Assistance Division. Phone: (202) 646-3834. Email:

fema-recovery-pa-policy@fema.dhs.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation and Request for Comments

II. Executive Summary

A. Background and Purpose of the Regulatory Action

B. Summary of Major Provisions

III. Discussion of the Proposed Rule

A. 44 CFR Part 206, Subpart A—General

B. 44 CFR Part 206, Subpart C—Emergency Assistance

C. 44 CFR Part 206, Subpart G—Public Assistance Project Administration

D. 44 CFR Part 206, Subpart H—Public Assistance Eligibility

E. 44 CFR Part 206, Subpart K—Community Disaster Loans

IV. Regulatory Analysis

A. Executive Order 12866, as Amended, Regulatory Planning and Review, Executive Order 13563, Improving Regulation and Regulatory Review, and Executive Order 14094, Modernizing Regulatory Analysis

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act of 1995

D. National Environmental Policy Act

E. National Historic Preservation Act of 1966

F. Endangered Species Act

G. Paperwork Reduction Act of 1995

H. Privacy Act/E-Government Act

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

J. Executive Order 13132, Federalism

K. Executive Order 11988, Floodplain Management

L. Executive Order 11990, Protection of Wetlands

M. Executive Orders 12898 and 14096, Environmental Justice

N. OMB Circular A-119, Voluntary Consensus Standards

O. Congressional Review of Agency Rulemaking

Table of Abbreviations

ADA Americans with Disabilities Act

CDL Community Disaster Loan

CFR Code of Federal Regulations

CPI-U Consumer Price Index for All Urban Consumers

CRA Congressional Review of Agency Rulemaking Act

DFA Direct Federal Assistance

DHS Department of Homeland Security

DRRA Disaster Recovery Reform Act

EA Environmental Assessment

EMAC Emergency Management Assistance Compact

FEMA Federal Emergency Management Agency

GAO Government Accountability Office

HOW Houses of Worship

HUD Department of Housing and Urban Development

NAC National Advisory Committee

NEPA National Environmental Policy Act

NIST National Institute of Standards and Technology

OMB Office of Management and Budget

PAPPG Public Assistance Program and Policy Guide

PKEMRA Post-Katrina Emergency Management Reform Act of 2006

PNP Private Nonprofit

PV Present Value

SBA Small Business Administration

SORN System of Records Notice

SRIA Sandy Recovery Improvement Act of 2013

Stafford Act Robert T. Stafford Disaster Relief and Emergency Assistance Act

I. Public Participation and Request for Comments

Interested persons are invited to participate in this rulemaking by submitting comments and related materials. We will consider all comments and material received during the comment period.

If you submit a comment, include the Docket ID FEMA-2023-0005, indicate the specific section of this document to which each comment applies, and give the reason for each comment. All submissions may be posted, without change, to the Federal eRulemaking Portal at

www.regulations.gov,

and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to read the Privacy and Security Notice that is available via a link on the homepage of

www.regulations.gov.

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

www.regulations.gov.

II. Executive Summary

A. Background and Purpose of the Regulatory Action

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

et seq.

When a catastrophe occurs in a State or affects the members of a Tribal community, the State's Governor or Tribal Chief Executive may request a Presidential declaration of a major disaster pursuant to Section 401 of the Stafford Act.

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.

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,

although other types may be authorized later.

A major disaster declaration may authorize all, or only particular types of, supplemental Federal assistance requested by the Governor or Tribal Chief Executive.

42 U.S.C. 5170(a), (b); 44 CFR 206.36(a).

42 U.S.C. 5170.

44 CFR 206.40(a).

44 CFR 206.40(c).

44 CFR 206.40(a).

One of the programs that may be authorized by a declaration is the Public Assistance program, which provides a broad range of assistance to State, Tribal, Territorial and local governments.

It provides assistance for

emergency protective measures, such as emergency evacuation, sheltering, and debris removal, as well as financial assistance for the permanent restoration of facilities.

In addition, the Stafford Act authorizes Community Disaster Loans for any local or Tribal government that has suffered a substantial loss of tax and other revenues as a result of a major disaster, and that demonstrates a need for financial assistance to perform its governmental functions.

Generally, the State, Territorial, or Indian Tribal government for which the emergency or major disaster is declared is the recipient. The applicant is a State, Tribal, or Territorial agency, local government, or eligible private nonprofit organization submitting an application to the

recipient for assistance under the recipient's grant. Upon award, the recipient notifies the applicant of the award, and the applicant becomes a subrecipient.

42 U.S.C. 5170b, 5172, and 5173.

42 U.S.C. 5184.

FEMA proposes to amend its Public Assistance and Community Disaster Loan program regulations to both improve program administration and incorporate statutory changes relating to Public Assistance and Community Disaster Loans. These include the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), Public Law 109-295, 120 Stat. 1394, the Security and Accountability for Every Port Act of 2006 (SAFE Port Act), Public Law 109-347, 120 Stat. 1884, the Pets Evacuation and Transportation Standards Act of 2006 (PETS Act), Public Law 109-308, 120 Stat. 1725, the Sandy Recovery Improvement Act of 2013 (SRIA), Public Law 113-2, 127 Stat. 39, the Emergency Information Improvement Act of 2015, Public Law 114-111, 129 Stat. 2240, the Bipartisan Budget Act of 2018, Public Law 115-123, 132 Stat. 64, and the FAA Reauthorization Act of 2018, Division D, Disaster Recovery Reform Act of 2018 (DRRA), Public Law 115-254, 132 Stat. 3438.

B. Summary of Major Provisions

The proposed rule would amend the Public Assistance program regulations at Title 44, part 206, of the Code of Federal Regulations (CFR) to reflect current statutory authorities, clarify the requirements for program eligibility, and improve program administration. Most notably, FEMA proposes to:

• Incorporate PKEMRA:

○ Amend section 206.11 to include “disability” and “English proficiency” in the list of the grounds upon which discrimination in the provision of assistance is prohibited.

○ Amend section 206.221 to include performing arts facilities and community arts facilities as eligible Private Nonprofit (PNP) facilities.

○ Amend section 206.225 to cover essential assistance for the rescue, care, shelter, and essential needs of household pets, service animals, and assistance animals.

○ Amend section 206.226(c)(1) (proposed section 206.226(i)(1)) to include education in the list of critical services that qualify PNPs to apply for Public Assistance without having first applied for an SBA loan.

• Incorporate SRIA:

○ Amend section 206.228 to incorporate Public Assistance Alternate Procedures for Debris Removal (Stafford Act section 428) to make straight-time labor costs eligible for budgeted employees conducting eligible debris removal activities.

○ Make revisions throughout 44 CFR part 206 to reflect that Indian Tribal governments may act as recipients or subrecipients for the Public Assistance program.

• Incorporate the Bipartisan Budget Act of 2018:

○ Amend the definition of “private nonprofit organization” in section 206.2(19) and section 206.221 to clarify requirements for houses of worship (HOWs) that may be exempt from the requirements to apply for tax exempt status under Internal Revenue Code 501(c)(3) or applicable State laws.

○ Amend definition of “private nonprofit facility” in section 206.221 to include HOWs and change the term “essential governmental service facilities” to “essential social services facilities.”

• Incorporate DRRA:

○ Amend section 206.12 to include long-term recovery groups, domestic hunger relief organizations, and other relief organizations.

○ Amend section 206.201 to add definitions of the terms “resilient” and “resiliency.”

○ Revise proposed sections 206.204(b)(4) and 206.226 to eliminate funding reductions for alternate projects.

○ Amend definition of “private nonprofit facility” in section 206.221 to include “center-based childcare” facilities.

○ Amend definition of “essential social service facility” in section 206.221 to include food banks.

○ Amend section 206.226(d) (proposed section 206.226(c)) to incorporate the requirement to use the latest codes and standards.

• Remove the definition of “emergency work” in section 206.201 and refer to “debris removal” and “emergency protective measures” separately in sections 206.204 (proposed section 206.205), 206.208 (proposed section 206.209), and 206.225, due to differing legal criteria between debris removal and emergency protective measures.

• Amend section 206.202(d)(2) (proposed section 206.202(d)(4)) to apply the minimum threshold to each site within a Project Worksheet (PW) rather than to the PW as a whole to prevent applicants from improperly grouping together de minimis sites to reach the threshold.

• Amend section 206.202(d) to provide deadlines for the submission of certain work and cost documentation to avoid undue delay and administrative cost and to help ensure timely recovery.

• Amend section 206.202(e) to remove a non-statutory deadline previously imposed on FEMA for obligation of funds to provide the necessary flexibilities to maintain the smooth administration of the Public Assistance program.

• Amend section 206.205 (proposed section 206.206) to add deadlines for the submission of small project certifications and large project cost documentation to help ensure timely closeout of projects.

• Amend section 206.221 to reflect current Stafford Act definitions, which include rehabilitational facilities and broadcasting facilities.

• Amend section 206.225 to add paragraph addressing temporary relocation of public and nonprofit facilities that provide an eligible essential community service and define “essential community services.”

• Amend subpart K, “Community Disaster Loans,” to reflect the current statutory loan maximums.

• Align terminology and definitions with 2 CFR part 200, tailoring to FEMA authorities and requirements as needed.

III. Discussion of the Proposed Rule

This proposed rule would revise FEMA's Public Assistance program and FEMA's Community Disaster Loan regulations to reflect current statutory authority and agency practice. FEMA is also proposing amendments to improve the efficiency and consistency of the Public Assistance program and improve Public Assistance applicants' understanding of the program. This rule would affect 44 CFR 206.2, 206.11-12, 206.62, 206.200-210, 206.220-228, 206.361, and 206.363-364.

Throughout this rule, FEMA proposes a number of non-substantive, clarifying edits as follows, which will not generally be discussed separately in the section-by-section analysis below. FEMA proposes to revise the word “shall” to “must” or “will” and the word “which” to “that” as appropriate, consistent with current drafting best practices. FEMA intends these edits to

clarify, but not change, the regulations' meaning. Similarly, this rule proposes a number of non-substantive typographical corrections, stylistic edits to improve clarity, and citation corrections. FEMA also proposes to update references to various FEMA positions and offices to reflect their current titles, such as replacing “Disaster Assistance Directorate” with “Recovery Directorate.” Similar terminology changes include replacing “event” with “incident,” to improve clarity by matching the defined term in 44 CFR 206.32(e), and replacing “grant” with “award,” to improve clarity by matching the terminology used in 2 CFR part 200.

FEMA proposes to replace references in its regulations to “Project Worksheet” with the generic term “Project Application”

because FEMA is in the process of revising information collection 1660-0017, Public Assistance Program, to,

inter alia,

refer to “Project Application”, where it previously referred to “Project Worksheet.” These proposed changes to FEMA's regulations would not change how the form is used or processed in the Public Assistance program. Instead, FEMA proposes this amendment to ensure clarity and consistency in the regulations.

When discussing other proposed changes in this rule, we use the term “Project Worksheets” to avoid confusion.

Additionally, FEMA proposes to redesignate various sections to reflect the addition or removal of other sections and to update internal cross-references accordingly. Further, the proposed rule includes revisions to FEMA's regulations to reflect that Indian Tribal governments (Tribal Governments or Tribes) may be recipients or subrecipients for the purpose of Public Assistance, consistent with section 1110 of SRIA.

Finally, FEMA proposes to revise various sections throughout the rule to make clear that, where appropriate, a Regional Administrator's designee may take actions on his or her behalf, such as reviewing proposals and approving extensions of time. This is not a substantive change, but simply makes the use of a designee explicit to improve clarity.

Public Law 113-2, 127 Stat. 39, 47. Tribal declaration requests are currently handled under FEMA's Tribal Declarations Pilot Guidance, and this rule does not propose any changes to those procedures. For more information, see Tribal Declarations Pilot Guidance,

https://www.fema.gov/disaster/tribal-declarations

(last accessed June 12, 2024).

In early preparation for this rulemaking, FEMA solicited input from the Administrator's National Advisory Council (NAC). The NAC recommended revisions to the Public Assistance regulations to reflect FEMA's post-Katrina practices and post-Katrina legislative amendments to the Stafford Act.

The NAC's recommendations included improving State administrative plans, streamlining and improving project worksheets, and reimbursing State, Tribal, Territorial, and local governments for force-account labor for emergency protective measures and debris removal. Consistent with those recommendations, FEMA is proposing updates to its regulations to reflect current statutory authorities and agency practices. As is discussed in more detail below, this rule proposes revisions to the project application process and State administrative plan requirements and proposes adding a provision that reflects the eligibility of straight-time force account labor for debris removal, which FEMA previously implemented via policy.

See

NAC Memo, Recommendations on the Stafford Act and Related Federal Regulations: Public Assistance and Individual Assistance Issues (Aug. 19, 2008), available at

https://www.fema.gov/pdf/about/nac/hp/stafford_act_rec_081908.pdf.

A. 44 CFR Part 206, Subpart A—General

i. Section 206.2 Definitions

Section 206.2 sets forth the defined terms that apply throughout 44 CFR part 206.

FEMA proposes to revise paragraph (a)(14) to clarify that the term “hazard mitigation” means any cost-effective measure intended to reduce the potential for damage from a “future” disaster event. Hazard mitigation does not address damage from disasters that have already occurred. This is not a substantive change and is simply intended to improve clarity.

Also, in paragraph (a)(14), FEMA proposes to change the word “event” to “impacts.” While throughout the rest of this rule we are proposing to replace “event” with “incident,” to improve clarity by matching the defined term in 44 CFR 206.32(e), in paragraph (a)(14), it is more accurate to refer to the impacts of a disaster, since those impacts are what mitigation measures seek to address. The use of this term is consistent with FEMA's guidance on the subject.

This is not a substantive change and does not change the meaning of “hazard mitigation.” Instead, we simply intend to improve clarity.

See

Public Assistance Program and Policy Guide, ver. 4, FP 104-002-2, at 153 (June 1, 2020) (PAPPG), available at

https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf.

Version 5 of the Public Assistance Program and Policy Guide is currently under review by the Office of Information and Regulatory Affairs. FEMA will update the Public Assistance Update final rule to reflect relevant amendments from Version 5.

In paragraph (a)(19)(i), FEMA proposes to update the outdated reference to the Internal Revenue Code of 1954. The current authority is the Internal Revenue Code of 1986, as amended.

Tax Reform Act of 1986, Public Law 99-514, sec. 2(a), 100 Stat. 2085, 2095.

FEMA also proposes to add a new paragraph (a)(19)(iii) to discuss the requirements for PNP organizations that are exempt from the requirements to apply for Internal Revenue Code section 501(c)(3) status or applicable State or Tribe tax exempt status. Instead of the requirement under paragraphs (a)(19)(i) and (ii) that such an organization must have an effective ruling letter from the Internal Revenue Service or appropriate documentation from the State, FEMA proposes that such an organization may establish their status through: (1) articles of association, bylaws, or other organizing documents indicating that it is an organized entity and (2) a certification that it is compliant with section 501(c)(3) of the Internal Revenue Code and State or Tribal law requirements. This proposed change is consistent with current FEMA guidance on this issue.

See

PAPPG at 43.

We also propose adding a reference to Tribes in paragraph (a)(19)(ii), to make clear that PNP organizations organized under Tribal law do not need to provide documentation from a State due to independent Tribal sovereignty.

Paragraph (a)(20) provides the general definition of “Public Assistance.” The definition includes references to other sections in the regulations that contain further information on Public Assistance. We propose to amend those references to add subpart I, Public Assistance Insurance Requirements, subpart J, Coastal Barrier Resources Act, and subpart M, Minimum Standards, which provide additional detail on the Public Assistance program, especially restrictions or limitations on the amount of funding allowed in subparts G and H, Public Assistance Project Administration and Public Assistance Eligibility, respectively. We also propose to replace the words “individuals and families” with “individuals and households,” to match the language used in section 408 of the Stafford Act. FEMA intends this change to improve clarity and consistency and is not a substantive change.

We propose adding new paragraphs (a)(26) and (a)(27) to include definitions of the terms “Tribal Authorized Representative” and “Tribal

Coordinating Officer.” These new paragraphs mirror the definitions of “Governor's Authorized Representative” and “State Coordinating Officer” in (a)(13) and (a)(23). As with the other changes proposed throughout this rule to add references to Indian Tribal governments, these proposed definitions would create provisions for Tribal governments equivalent to those already provided for State governments to ensure consistency with the Stafford Act.

ii. Section 206.11 Nondiscrimination in Disaster Assistance

Section 689a of PKEMRA amended section 308(a) of the Stafford Act to add “disability” and “English proficiency” to the list of protected classes. Public Assistance grant recipients are already prohibited from discrimination on these grounds under other laws as codified in the DHS Standard Terms and Conditions

and FEMA has already expanded its civil rights compliance and enforcement activities to include these two additional categories. FEMA now proposes to revise paragraph 206.11(b) to reflect this. The revision would improve consistency and clarity by making the list of classes in paragraph (b) match the list in section 308(a) of the Stafford Act.

See FY 2023 DHS Standard Terms and Conditions (Nov. 29, 2022),

https://www.dhs.gov/sites/default/files/2023-01/FY%202023%20DHS%20Terms%20and%20Conditions%20Version%202%20Dated%20November%2029%202022.pdf.

In addition, although this proposed revision, and others discussed below, originate from amendments to the Stafford Act, and do not involve the exercise of agency discretion, they are consistent with the principles of equity that FEMA seeks to advance in all its programs. We hope that these changes to the regulations would help highlight these provisions, such as nondiscrimination in disaster assistance, and their importance in every part of FEMA's mission.

iii. Section 206.12 Use and Coordination of Relief Organizations

Section 309(a) of the Stafford Act authorizes the President to utilize, with their consent, the personnel and facilities of certain relief or disaster assistance organizations in providing relief and assistance under the Act. Section 309(b) authorizes the President to enter into agreements with these same organizations to coordinate their disaster relief activities. This authority is codified in the regulations at 44 CFR 206.12.

Section 1227 of DRRA amended section 309 of the Stafford Act to add long-term recovery groups and domestic hunger relief and other relief organizations to the lists of organizations whose personnel and facilities may be used and with whom coordination agreements may be entered into. Accordingly, FEMA proposes to revise paragraphs (a) and (b) of section 206.12 to reflect this statutory change by replacing the existing reference to “other voluntary organizations” with “long-term recovery groups, domestic hunger relief organizations, and other relief or voluntary organizations.”

Also, in paragraph (b), FEMA proposes to revise “American Red Cross” to “American National Red Cross” to match the name used in section 309(b) of the Stafford Act.

B. 44 CFR Part 206, Subpart C—Emergency Assistance

In section 206.62, FEMA proposes non-substantive revisions related to Indian Tribal governments. Specifically, current paragraphs (a) through (c) and (g) mention assistance available to State and local governments under an emergency declaration. Section 1110 of SRIA extended this assistance to Indian Tribal governments,

but they are not mentioned in this section. FEMA proposes to add explicit references to Indian Tribal governments to properly reflect this eligibility.

Public Law 113-2, 127 Stat. 39, 47.

C. 44 CFR Part 206, Subpart G—Public Assistance Project Administration

i. Section 206.200 General

Section 206.200 provides a general overview to Subpart G, which governs the administration of the Public Assistance Program. We propose numerous non-substantive changes to this section to make the language more concise and move provisions to other sections in the regulations where they are more logically connected. The proposed amendments, however, would not remove any of the substantive provisions in § 206.200 from part 206 entirely.

We propose to remove the headings of paragraphs (a) and (b), since they are unnecessary and to be consistent with proposed paragraphs (c) and (d), which would not have headings. We further propose to revise paragraph (b) by simplifying its provisions. The first sentence of current paragraph (b)(1) would be redesignated as paragraph (b); the second sentence would be edited for clarity and designated as a new paragraph (c), because it addresses recipient and subrecipient responsibilities, rather than FEMA's responsibilities. We specifically propose to remove the words “we expect” from proposed paragraph (c), since adherence to the Stafford Act and FEMA's regulations is a clear legal requirement.

Current paragraph (b)(2) discusses the applicability of the “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards,” published at 2 CFR parts 200 and 3002. Since the specific applicability of 2 CFR part 200 is addressed in other sections of subpart G,

we propose to remove paragraph (b)(2). The proposed rule would replace it with a new paragraph (d) stating generally that the regulations at 2 CFR part 200 apply to all Public Assistance grants and to all recipients and subrecipients of Public Assistance grants except where those provisions are inconsistent with the Stafford Act or FEMA's regulations. This is a non-substantive change intended to improve clarity and readability.

See

current 44 CFR 206.202(a) (stating that the recipient is “responsible for processing subgrants to applicants under 2 CFR parts 200 and 3002, and 44 CFR part 206, and your own policies and procedures”); current 44 CFR 206.205(b) (stating that the recipient shall certify that payments for a project were made in accordance with 2 CFR 200.305); current 44 CFR 206.207(a) (stating that the “Uniform administrative requirements which are set forth in 2 CFR parts 200 and 3002 apply to all disaster assistance grants and subgrants”).

Current paragraph (b)(2)(i) states that FEMA expects the recipient to inform subrecipients about the status of their applications, including notification of FEMA's approvals of Project Worksheets and FEMA's estimates of when FEMA will make payments. These specific requirements more appropriately belong in section 206.202, which addresses application procedures, rather than section 206.200, which addresses general requirements. Therefore, we propose to remove section 206.200(b)(2)(i) and add this provision to section 206.202 in proposed paragraphs (b)(4), on recipient responsibilities, and (e)(2), on grant approval. Notifying subrecipients of FEMA's approvals is an important requirement and one that warrants repeating in both places in section 206.202.

Section 206.200(b)(2)(ii) states that FEMA expects the recipient to pay the full amounts due to the subrecipient as soon as practicable after FEMA approves payment, including the State contribution required in the FEMA-State Agreement. We propose to remove paragraph (b)(2)(ii) because this provision is already included in current section 206.205(a) (proposed

206.206(a)), regarding payment of claims for small projects. We propose to add an equivalent provision regarding payment for large projects in proposed section 206.206(b)(3), so that the requirement is still covered in both contexts.

Finally, current section 206.200(b)(2)(iii) states that FEMA expects the recipient to “pay the State contribution consistent with State laws.” Consistent with the other proposed changes to paragraph (b)(2) and for better organization, we propose to remove paragraph (b)(2)(iii) and add this provision to proposed 206.206(b), which addresses payment of claims for large projects. We further propose to add a similar provision for small projects in proposed 206.206(a).

ii. Section 206.201 Definitions Used in This Subpart

FEMA proposes several changes to the definitions in section 206.201. We propose to remove the paragraph designations throughout the section and reorder the definitions alphabetically.

We propose to revise the definition of “applicant.” The existing definition includes eligible private nonprofit organizations as identified in Subpart H of this regulation. For clarity, we propose replacing this language with “private nonprofit organization or institution that owns or operates a private nonprofit facility as defined in § 206.221,” which is consistent with the language used in section 206.222(b). Eligibility for FEMA Public Assistance remains facility-based; this revision would not impact the eligibility of facilities operated by private nonprofit organizations.

We propose to remove the definition of “emergency work” in this section to avoid confusion. Under current practice, FEMA identifies two categories of emergency work: debris removal and emergency protective measures. Due to differing legal criteria between the two, we propose to refer to “debris removal” and “emergency protective measures” separately in the sections where the term “emergency work” was used: sections 206.204 (proposed 206.205), 206.208 (proposed 206.209), and 206.225. This revision would improve clarity and would not be a substantive change to the eligibility of emergency work.

In the definition of “facility,” we propose to remove the words “publicly or privately owned” because they are unnecessary and do not affect the meaning of the term. We also propose to replace the word “works” with “structure,” because the latter term is more commonly used in FEMA's regulations and guidance. Neither change is substantive or alters the definition of facility; instead, we propose them to improve clarity and consistency.

We propose replacing the defined term “grant” with “award,” consistent with changes proposed throughout this rule to comport with the language used in 2 CFR part 200. We also propose specifying in the definition of the term that it means the financial assistance “that the recipient receives from FEMA” to avoid ambiguity.

We propose removing the definition of “hazard mitigation” in section 206.201 because it is duplicative of the definition in section 206.2. The definition provided in section 206.2 applies throughout 44 CFR part 206 and renders the definition in this section redundant.

We propose to simplify the definition of “permanent work” by replacing the current definition with “work performed pursuant to section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5172.” Recent amendments to section 406, such as DRRA section 1235(b), have rendered the definition of “permanent work” in section 206.201 incomplete or inaccurate. The current definition in section 206.201 ties restorative work to “current applicable standards,” but the Stafford Act now requires “conformity with the latest published editions of relevant consensus-based codes, specifications, and standards that incorporate the latest hazard-resistant designs . . . .”

Rather than continuing to update the regulatory definition each time section 406 is amended, we propose to simply refer generally to work performed pursuant to that section. This proposed revision would bring the regulatory definition of the term “permanent work” up to date with the current statutory provisions and avoid unnecessary confusion and administrative burden in the future. This revision would not change eligibility under section 406 or otherwise impact FEMA's implementation of that section.

42 U.S.C. 5172(e)(1)(A)(ii).

We propose to remove from the definition of “project” the statement that “the scope of work and cost estimate for a project are documented on a Project Worksheet (FEMA Form 90-91).” The Project Worksheet is a significant part of the Public Assistance process and merits its own definition. Therefore, we propose to add a stand-alone definition describing the items that are included on the form. However, FEMA is in the process of revising information collection 1660-0017, Public Assistance Program, and will be replacing the term “Project Worksheet” with “Project Application.” Therefore, we propose defining the term “Project Application” instead of “Project Worksheet.” We also propose to remove from the definition of “project” the statement that FEMA “must approve a scope of eligible work and an itemized cost estimate before funding a project.” We propose to capture these requirements in the definitions of “project approval” and “Project Application.”

Also, in the definition of “project approval,” we propose revising the first sentence to replace “the process in which the Regional Administrator, or designee, reviews and signs an approval of work and costs” with “the process in which the Regional Administrator, or designee, reviews a proposed project and approves the work and costs.” FEMA believes the proposed language more clearly and accurately describes the review and approval process. This would be a clarifying edit and would not substantively affect the meaning of the term. Additionally, we propose removing the last sentence of the definition, which states “Such approval is also an obligation of funds to the recipient.” Certain circumstances, such as a lack of available funding, could prevent FEMA from immediately obligating funds upon approval of a Project Worksheet. Removing this language from the definition would avoid confusion in such situations. We also propose replacing “Project Worksheet” with “Project Application, consistent with the pending changes to information collection 1660-0017, Public Assistance Program.

As mentioned above, we propose adding a new definition of “Project Application” to read as follows: “Project Application is used to document the location, scope of work, cost or cost estimate, terms and conditions, and information required for approval. For permanent work, the form is also used to document damage description and dimensions.” This term would be the updated term for “Project Worksheet,” which is not currently defined but is used throughout this subpart. We do not intend for the proposed definition to substantively change how Project Worksheets have been (and Project Applications will be) used in the Public Assistance program. Instead, we simply propose to provide clarity and ensure consistency in FEMA's regulations.

In 2023, the Biden-Harris Administration issued the National Climate Resilience Framework noting

the intensifying impacts of climate change are costing lives, disrupting livelihoods, and causing billions of dollars in damages.

The Administration intends for the Federal Government to serve as a partner with local communities by reforming and modernizing Federal programs in ways that strengthen climate resilience. In 2018, Section 1235(d) of the DRRA amended section 406(e) of the Stafford Act to require that FEMA issue a final rule defining the terms “resilient” and “resiliency.” Consistent with that requirement, we propose defining the term “resilient” as “able to prepare for threats and hazards, adapt to changing conditions, and withstand and recover rapidly from adverse conditions and disruptions” and the term “resiliency” as “the ability to prepare for threats and hazards, adapt to changing conditions, and withstand and recover rapidly from adverse conditions and disruptions.” If adopted, these definitions would help promote consistent terminology across FEMA's programs and would satisfy FEMA's obligations under DRRA section 1235(d) and Stafford Act section 406(e).

The White House, National Climate Resilience Framework (September 2023),

https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf.

These definitions mirror the definition of “resilience” used in FEMA's National Resilience Guidance,

which is based on the definition in Presidential Policy Directive (PPD) 21.

These definitions also mirror the definition of “resilience” used in the National Climate Resilience Framework.

FEMA previously used a similar definition of “resilience” in guidance on DRRA section 1325(b) and on the Building Resilient Infrastructure and Communities program.

FEMA considered a few other definitions, including two based on PPD-8

and a National Institute of Standards and Technology (NIST) definition,

but proposes the ones given above as they provide the clearest articulation of resilience principles for the purpose of the Public Assistance program, and for consistency with the National Resilience Guidance.

See

FEMA, National Resilience Guidance: Background and Key Concepts (March 2023),

https://www.fema.gov/sites/default/files/documents/fema_national-resilience-guidance-project-background_2023.pdf. See also

FEMA, National Resilience Guidance,

https://www.fema.gov/emergency-managers/national-preparedness/plan/resilience-guidance

(last accessed June 12, 2024).

Presidential Policy Directive 21, Critical Infrastructure Security and Resilience (Feb. 12, 2013), available at

https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil.

Presidential Policy Directive 21, Critical Infrastructure Security and Resilience (Feb. 12, 2013), available at

https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil.

The White House, National Climate Resilience Framework (September 2023), available at

https://www.whitehouse.gov/wp-content/uploads/2023/09/National-Climate-Resilience-Framework-FINAL.pdf.

See

Consensus-Based Codes, Specifications and Standards for Public Assistance, FEMA Recovery Interim Policy FP-104-009-11 Ver. 2.1, at 2 n.2 (Dec. 20, 2019), available at

https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1235b-public-assistance-codes-standards-interim-policy.pdf;

87 FR 10805, 10808 (Feb. 25, 2022).

See

Presidential Policy Directive 8, National Preparedness (Mar. 30, 2011), available at

https://www.dhs.gov/presidential-policy-directive-8-national-preparedness

(last accessed June 12, 2024).

See

Community Resilience Planning Guide for Buildings and Infrastructure Systems, vol. 1, at 9 (May 2016), available at

https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.1190v1.pdf;

NIST, Community Resilience,

https://www.nist.gov/community-resilience

(last accessed June 12, 2024).

Consistent with the requirement of DRRA section 1235(d), FEMA consulted with the heads of relevant Federal departments and agencies in developing these proposed definitions.

As part of the National Resilience Guidance, FEMA consulted with a broad range of stakeholders, including the Mitigation Framework Leadership Group (MitFLG) and the Recovery Support Function Leadership Group (RSFLG). These groups comprise a wide range of Federal departments and agencies with equities in national hazard mitigation and Federal recovery efforts, respectively.

Consistent with discussion and feedback received during the National Resilience Guidance engagement process, and to promote a common understanding of resilience in alignment with that effort, FEMA proposes to use that definition of “resilience” as the basis for the proposed definitions in this rule.

42 U.S.C. 5172(e)(5)(A).

For more information, see FEMA's website at

https://www.fema.gov/emergency-managers/national-preparedness/frameworks/mitigation/mitflg

and

https://recovery.fema.gov/about

(last accessed June 12, 2024).

Lastly, we propose adding a new definition for “site.” This term is used in several places in the Public Assistance program regulations, including in the definition of “project,” but does not currently have its own definition in section 206.201. Consistent with current FEMA guidance,

we propose defining “site” as “an individual building, structure, location, or system section.” This definition would not change current practice but would provide clarity for FEMA applicants and improve consistency in FEMA's regulations.

PAPPG at 60.

All other revisions proposed in this section are non-substantive edits to improve clarity and do not affect the meaning of any defined term. This includes the removal of the word “eligible” from the definition of “subaward.” The current reference to “eligible subrecipients” is redundant, since, by definition, subrecipients are applicants who receive a subaward. We propose removing “eligible” to avoid confusion and improve consistency in the regulations. We also propose a minor non-substantive edit to the definition of “subrecipient,” rewording the sentence to use active, instead of passive voice.

iii. Section 206.202 Application Procedures

In paragraph (a), we propose to remove the statement that “under this section the State is the recipient” because an Indian Tribal government may also be a recipient. We propose to remove this provision rather than correct it because it is unnecessary. The term “recipient,” as defined in section 206.201, includes Indian Tribal governments. Also, in paragraph (a), we propose to remove the reference to 2 CFR part 3002, since that part now only references 2 CFR part 200, and instead simply refer directly to the applicable requirements of part 200. That part applies generally to Public Assistance awards except where inconsistent with the Stafford Act or FEMA's regulations. The other revisions proposed in this section are all non-substantive clarifying and stylistic edits to improve readability.

We propose to add a new paragraph (b)(4) stating that the recipient is responsible for informing the subrecipient of the status of its application for Public Assistance funding, including FEMA's approval of the Project Application and the process for disbursement of funds. This requirement currently appears in section 206.200(b)(2)(ii). As explained above for section 206.200, this provision is more appropriately placed in this section, which lists the recipient's responsibilities, and we propose non-substantive changes to the wording of the provision to better capture those responsibilities and the pending change to information collection 1660-0017, Public Assistance Program. We also propose to re-order existing paragraphs (b)(1), (3), and (4) and make other non-substantive clarifying edits to more accurately describe the recipient's grant management activities.

We propose to make a clarifying change to paragraph (c), which currently states that the recipient must submit a

request for assistance within 30 days after designation of the area where the damage occurred. Consistent with current FEMA guidance,

we propose to reword the paragraph to clarify that the recipient must submit the request no later than 30 calendar days after the area is designated in an emergency or major disaster declaration. We also propose to remove the references to outdated FEMA Form numbers in paragraph (c) and throughout this section. Neither of these proposed changes is substantive.

PAPPG at 37 (“Unless otherwise noted, FEMA calculates all deadlines based on calendar days”).

We propose to reorganize and revise paragraph (d). First, we propose revising the paragraph heading from “Project Worksheets” to “Project Applications,” consistent with the pending revision to FEMA's Public Assistance forms. In paragraph (d)(1), we propose clarifying that an applicant's authorized local representative is responsible for ensuring the applicant has submitted all costs or cost estimates. This is not a substantive change but would simply make explicit that submissions may include cost estimates as well as actual costs. For clarity, we also propose removing the words “for funding” from the end of paragraph (d)(1) because they are unnecessary.

We propose moving the first sentence of existing paragraph (d)(1)(i) to the end of paragraph (d)(1) and clarifying that the applicant may be assisted by the recipient or by FEMA in preparing a Project Application for each project. We propose removing the existing second sentence of (d)(1)(i), since the requirement to identify eligible work would be included in proposed new paragraphs (d)(2) and (3). We propose moving the provision in existing paragraph (d)(1)(ii) into a new paragraph (d)(2), with certain revisions. Existing paragraph (d)(2) would be redesignated as paragraph (d)(4). New paragraph (d)(2) would provide that within 90 calendar days following FEMA's approval of the Request for Public Assistance, the applicant must identify, and report all impacts the applicant proposes be included on the Project Applications. This would be a change from the existing deadline, which is 60 days following the first substantive meeting with FEMA. Basing the deadline on FEMA's approval of the Request for Public Assistance avoids potential confusion about what constitutes the first substantive meeting. We propose increasing the time period from 60 days to 90 days, to ensure applicants do not have less time to identify and report the impacts.

Based on an analysis of data from FEMA's Grants Manager system, it typically takes applicants approximately 78 days to complete this process. Accordingly, we do not expect this proposed deadline would impose a new burden on applicants.

We propose to add a new paragraph (d)(3), providing that for work not completed prior to or during the project development period, the applicant must conduct any site inspections necessary to validate incident impacts and obtain all information necessary to complete a detailed description of the impacts. This requirement is currently imposed in existing paragraph (d)(1)(ii), but the proposed change would improve clarity by better describing what is required. New paragraph (d)(3) would also require that within 30 calendar days following a site inspection or 120 calendar days following FEMA's approval of the Request for Public Assistance, whichever is later, the applicant must also provide the recipient and FEMA all other documentation necessary to determine eligible work and costs. These deadlines would ensure that applicants timely submit all required information and support the efficient administration of the program. Applicants would be able to request an extension to the deadlines under section 206.202(f)(2), but if they fail to submit the documentation within the required time, the project would be ineligible, and the applicant would need to submit an appeal. When obligation and closeout of projects extends beyond the completion of the work, it delays the recovery process and results in undue burdens and increased costs for FEMA, recipients, and disaster-impacted communities. FEMA believes codifying a specific timeframe for submitting information is necessary to ensure timely completion of Project Worksheets, obligation of funds, and closure of projects.

Existing paragraph (d)(2) (proposed (d)(4)) provides information on the minimum threshold for small projects. When the estimated cost of a project is below this threshold, FEMA will not approve funding for it. Paragraph (d)(2) currently provides that the minimum threshold amount “shall be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers” (CPI-U). We propose updating the listed minimum threshold amount from $3,000 to $3,900 which is the current published amount.

We also propose to revise this paragraph to provide that the minimum threshold “will be reviewed annually and may be adjusted . . . .” This is not a substantive revision, but simply clarifies that an adjustment to the minimum threshold is not strictly required every year. Sometimes, the change in CPI-U in a single year is so small as to only result in a de minimis change in the minimum threshold. FEMA interprets section 422 of the Stafford Act not to require the agency expend the time and resources necessary to issue an adjustment when the impact of that adjustment would be de minimis.

See

88 FR 72512 (Oct. 20, 2023).

We further propose to revise current paragraph (d)(2) to change the way the minimum threshold is applied. Under the existing regulations, FEMA will not approve project applications when the estimated cost of work on the project is under the minimum threshold. FEMA requires applicants to restrict each project to a conceptual and logical grouping of eligible work at one or more sites.

Applicants have some discretion in how they group sites across projects, however, and some currently try to group together sites that are, by themselves, de minimis, in order to reach the minimum threshold. When projects consisting solely of multiple de minimis sites that should not have met the minimum threshold are processed, it takes up limited administrative resources and causes delays throughout the program. To remedy this, FEMA proposes to replace “when the estimated cost of work on a project” with “when the estimated cost of work at a site.” This would ensure the minimum threshold is applied not to the project as a whole, but to each site in the project individually, properly excluding project applications under the threshold.

See

44 CFR 206.201; PAPPG at 60-63.

We propose revising the heading of paragraph (e) from “grant approval” to “award notification” to better describe its provisions. We propose to make a number of clarifying revisions to paragraph (e)(1) to improve clarity and readability. Among them, we propose to revise the second sentence to replace the phrase “will obligate funds” with “may obligate funds.” This is not a substantive change, but merely a clarifying edit to more accurately reflect that, while in most cases the Regional Administrator will obligate funds after receiving the appropriate forms and approved Project Worksheets, there are occasionally situations that require a delay. For example, funding may not be available to obligate at the time the Project Worksheet is approved, FEMA may need to request additional information from the applicant, or an environmental review may be ongoing

and need to conclude before funds can be obligated. In such situations, obligation is not automatic upon approval, but FEMA will obligate funds as soon as the relevant issue is resolved. We further propose to replace the term “Project Worksheet” with “Project Application,” consistent with the pending revision to FEMA's Public Assistance forms.

We propose to remove existing paragraph (e)(2), which provides for a 45-day deadline for FEMA to obligate Federal funds, from the time the applicant submits the Project Worksheets. In the same way that there may be a delay as discussed above regarding paragraph (e)(1), circumstances may arise that require a delay before FEMA may obligate funds; to ensure we have the necessary flexibilities to maintain the smooth administration of the Public Assistance program, we propose to remove this deadline. Under this proposed change, FEMA would still maintain regular contact with applicants regarding the status of their projects and could explain any delays in obligation. We do not believe that removing the deadline will result in any substantial increase in delays or otherwise cause novel problems for applicants, but we request comment on the potential impact of this proposed change.

We propose to add a new paragraph (e)(2) providing that the recipient will notify the subrecipient of FEMA's approval of a subaward. As discussed above, this provision is currently included in section 206.200(b)(2)(i), and we propose moving it to this section to improve organization and clarity in FEMA's regulations.

In paragraph (f)(1)(i), we propose to clarify that a host State or Tribe that provides evacuation and sheltering support is eligible for a grant under sections 403 or 502 of the Stafford Act when an impacted State or Tribe requests direct Federal assistance for sheltering. Adding this statutory reference to “State/Tribe” would provide clarity to the reader and is a not a substantive change.

Overall, the proposed amendments to § 206.201 would streamline and improve the Project Worksheet process, which is a reform supported by the NAC in its recommendation.

See

NAC Memo, Recommendations on the Stafford Act and Related Federal Regulations: Public Assistance and Individual Assistance Issues, at 2 (Aug. 19, 2008), available at

https://www.fema.gov/pdf/about/nac/hp/stafford_act_rec_081908.pdf

iv. Section 206.203 Federal Grant Assistance

We propose to revise the heading of this section to read “Federal funding for large and small projects,” which adequately describes the contents of the section, as revised, and renders paragraph (a) unnecessary, and to remove paragraph (a). We proposed to redesignate paragraphs (b), (c)(1), (c)(2), and (c)(3) as paragraphs (a), (b), (c), and (d), respectively. We propose to move the provisions in existing paragraph (d), which address improved projects and alternate projects, to a new section 206.204, and accordingly redesignate existing sections 206.204-209 as sections 206.205-210, respectively.

In new paragraph (b), we propose to replace “State disaster assistance grants” with “FEMA Public Assistance awards.” In new paragraph (c), we propose stating that the minimum threshold amount will be “reviewed annually and may be adjusted” to reflect changes in CPI-U. This would more accurately reflect the fact that if the change in CPI-U for a given year is so small as to result in only a de minimis change in the minimum threshold, FEMA is not required to spend limited administrative resources issuing an adjustment that year. These revisions are merely clarifications and would not be a change in current agency practice.

In new paragraph (d), we propose minor edits to reflect the proposed reorganization of this section, replacing the reference to paragraph (c) with one to paragraphs (b) and (c), and to replace the term “Project Worksheet” with “Project Application,” consistent with FEMA's pending update of its Public Assistance forms.

v. Proposed Section 206.204 Funding Options—Improved Projects and Alternate Projects

Existing section 206.203(d) addresses two funding options for projects that are outside the originally approved scope of work: (1) improved projects, which restore the predisaster function of a damaged facility but include improvements beyond the predisaster design, and (2) alternate projects, which are done when the public welfare would not be best served by restoring a damaged public facility or its function. FEMA proposes to create a new section 206.204 for these provisions, and to make revisions to the current regulatory language in existing section 206.203(d).

FEMA proposes to address improved projects, currently in section 206.203(d)(1), in new paragraph 206.204(a). We propose to add further information regarding project eligibility, deadlines, and funding for improved projects in new paragraphs (a)(1) through (4). We propose to replace the words “Federal funding” with the words “Public Assistance funding” to more accurately reflect the source of the funds. Regarding project eligibility, we propose to add a sentence indicating that FEMA may only grant improved projects for permanent work.

This is not a new requirement, but the revision would help ensure clarity regarding eligibility for improved projects. Emergency work is meant to eliminate immediate threats to public safety and improved property, whereas an improved project is a project that restores the predisaster function of a facility and incorporates improvements or changes to the predisaster design. For example, an improved project would be a subrecipient contributing its own funding to add a new library when rebuilding a school.

See

definition of Permanent Work, 42 CFR 206.201, and discussion

supra

on proposed revision.

See also

PAPPG at 163.

The regulations at existing section 206.203(d)(1) require the subrecipient to obtain the recipient's approval for improved projects. We propose to clarify in new section 206.204(a)(2) that the subrecipient must obtain the recipient's approval in writing prior to the start of construction. Further, we propose to require that the recipient notify FEMA in writing of the improved project approval, which is consistent with current FEMA guidance on improved projects.

Having recipients notify FEMA of project approval helps ensure accountability and transparency by increasing communication between FEMA and recipients and providing consistent documentation.

See

PAPPG at 167.

FEMA also proposes to clarify in new paragraph 206.204(a)(3) that the project completion deadlines established under existing section 206.204(c) (proposed 206.205(c)) apply to the completion of improved projects and alternate projects. This is not a new requirement. Current section 206.204(c) establishes deadlines that apply to all projects approved under State disaster assistance grants. Including this requirement in the regulatory provisions that specifically address improved projects and alternate projects is intended to aid readers and FEMA in expediting project and program closure.

Regarding funding, FEMA proposes to clarify in new paragraph 206.204(a)(4) that Public Assistance funding for improved projects is either the Federal share of the actual costs of completing the improved project, or the Federal

share of the approved estimate of eligible costs, whichever is less. If, for example, a tornado destroys a school gym and the cost to replace that gym is approved for $2 million, the school could apply that $2 million toward the construction of a larger gymnasium, rather than replace a gymnasium of the same size. If it did, and the larger gymnasium cost $5 million to build, FEMA would still calculate the Federal share from the $2 million approved scope of work. If, however, the school rebuilt a smaller gym, and the actual cost was only $1 million, FEMA would calculate the Federal share from the school's actual costs of $1 million. These proposed changes are consistent with current FEMA guidance and would not substantively affect the amount of Federal share or the eligibility of costs for improved projects.

See

PAPPG at 164, 166-67.

FEMA proposes to move the provisions in existing section 206.203(d)(2), relating to alternate projects, to new section 206.204(b), and to clarify project eligibility, funding, and other requirements. In proposed paragraph (b)(4)(i), we propose to use the phrase “Public Assistance funding,” instead of the phrase “Federal funding” used in existing 206.203(d)(2)(ii), to more accurately reflect the source of the funds. Regarding project eligibility, the current regulation states that the recipient may propose alternate projects in any case where a subrecipient determines that restoring a damaged public facility or the function of that facility would not best serve the public welfare. We propose to add PNP facilities to this provision. This is not a substantive change. PNP facilities are currently eligible for alternate project funding under existing section 206.203(d)(2)(iii), but they were inadvertently left out of the introductory language of existing paragraph (d)(2). FEMA also proposes to remove the language in existing section 206.203(d)(2)(i) stating that the “alternate project option may be taken only on permanent restorative work,” and to instead state in proposed paragraph (b)(1) that “an alternate project may only be approved for permanent work.” Because the language “permanent restorative work” may be misunderstood to limit the use of alternate projects funds to restoration work, FEMA is proposing this revision to clarify existing eligibility requirements and avoid confusion regarding the use of alternate project funds.

The current regulation, in section 206.203(d)(2)(v), requires the recipient to submit a proposal for any alternate project to the Regional Administrator for approval before the start of construction. In addition to this requirement, we propose to further specify in new section 206.204(b)(2) that an applicant must receive approval from the Regional Administrator prior to the start of construction on an alternate project. This change would incorporate current policy

into the regulations and is intended to save applicants from beginning a project and committing their resources before learning that the project is ineligible for Public Assistance.

See

PAPPG at 167.

The current regulation also states that the recipient shall include a description of the proposed alternate project(s), a schedule of work, and the projected cost of the project(s) in the alternate project proposal. FEMA proposes to add that the schedule of work must include the starting date and targeted completion date because alternate projects tend to take a much longer time to complete than original or improved projects. Knowing the starting date and targeted completion date would enable FEMA to keep track of the project more effectively and aid FEMA in planning for closeout.

Additionally, existing section 206.203(d)(2)(v) further states that the recipient shall provide the necessary assurances to document compliance with special requirements, including, but not limited to, floodplain management, necessary environmental assessments, hazard mitigation, protection of wetlands, and insurance. FEMA proposes to simplify the regulatory language but slightly expand the scope of the provision by revising this list to read “any environmental or historic preservation issues, and any other legal considerations.” We propose including this new language to require the recipient to identify other legal considerations not currently listed, such as liens on property, ownership issues, and zoning. See proposed 44 CFR 206.204(b)(2). Legal issues are more likely to arise in alternate projects than in original or improved projects, so identifying these issues early in the project formulation phase can assist FEMA in determining whether it should approve the project, or whether these issues will be prohibitive, thereby saving applicants from beginning a project only to be halted before completion.

In proposed section 206.204(b)(4), FEMA proposes to provide additional clarity regarding funding for alternate projects. Under the existing regulations, at 206.203(d)(2), Public Assistance funding for alternate projects is limited to a certain percentage of the Federal share of FEMA's estimate of the cost of repairing, restoring, reconstructing, or replacing the original facility, and of management expenses. DRRA section 1207(a) amended section 406(c) of the Stafford Act to remove these percentage limitations, so we propose to update the regulations to reflect the current statutory provision. We also propose to clarify that Public Assistance funding for alternate projects is limited to the Federal share of the actual costs of completing the alternate project or the Federal share of the approved estimate of the total eligible cost, whichever is less. This last change is not a substantive change, but simply intended to improve clarity and avoid confusion. Both changes are consistent with current FEMA guidance on alternate projects.

See

PAPPG at 164, 167-68.

Existing section 206.203(d)(2)(iv) states that funds contributed for alternate projects may be used to repair or expand other selected public facilities, to construct new facilities, or to fund hazard mitigation measures. We propose to add, in proposed 206.204(b)(4)(ii), both the purchase of equipment and, when required to accomplish the project, the demolition of the original structure as eligible uses of alternate project funds. This change is consistent with current FEMA guidance on this issue,

and would improve clarity and consistency in the regulations.

See

PAPPG at 167.

Finally, we propose to add provisions to new paragraphs (b)(4)(ii)(A) and (B) regarding limitations on the use of funds for alternate projects. Funds awarded for alternate projects may not be used to pay the non-federal share of any project and may not be applied to operating expenses. These alternative project funds may not be applied in a regulatory floodway or for any uninsured public facility or private nonprofit facility located in a special flood hazard area. We also propose adding in new paragraphs (b)(4)(ii)(A) and (B) examples of work that alternative project funds may be used for. These examples are not an exhaustive list of permissible uses.

These limitations conform to the language of section 406(c)(1)(C) and (c)(2)(C) of the Stafford Act and current FEMA guidance,

and are proposed for clarity and to emphasize for readers the importance of these restrictions.

See

PAPPG at 167-68.

vi. Section 206.204 Project Performance (Proposed 206.205)

FEMA proposes to redesignate section 206.204 as section 206.205 to reflect the new section 206.204 discussed above.

In the chart in paragraph (c)(1), we propose replacing “debris clearance” with “debris removal” and “emergency work” with “emergency protective measures,” to improve clarity, consistent with the proposed removal of the definition of “emergency work” in section 206.201, discussed above. We further propose consolidating these two items onto a single line in the chart. Both have the same 6-month completion deadline, so combining them simplifies the chart and improves readability. We propose a conforming edit in paragraph (c)(2)(ii) to refer to “debris removal” and “emergency protective measures.”

Paragraph (c)(2) provides exceptions to the project completion deadlines established in paragraph (c)(1). Specifically, paragraph (c)(2)(i) states that the recipient may impose lesser deadlines for the completion of work if considered appropriate. Although deadlines shorter than those provided in paragraph (c)(1) are not often imposed, they may be appropriate in some circumstances. Under current practice, FEMA and the recipient will agree that a lesser timeline is appropriate in a particular case before any deadline(s) are reduced, and the recipient will inform the subrecipient of the reduced deadline, and then monitor and enforce the subrecipient's compliance. FEMA proposes revising the existing language in paragraph (c)(2)(i), “The recipient may impose . . .”, to say “FEMA and the recipient may impose . . .” FEMA specifically requests comment on this proposed change and whether mandating concurrence on reduced deadlines would improve delivery of the Public Assistance program. Additionally, consistent with current guidance,

FEMA proposes clarifying in paragraph (c)(2)(ii) that all extensions of deadlines for temporary relocation require prior FEMA approval.

See

PAPPG at 133.

Paragraph (d) requires the recipient to submit requests for time extensions beyond the recipient's authority to the Regional Administrator. FEMA proposes to clarify that the recipient must submit the request prior to the expiration of the last approved time extension, and that the recipient must provide the justification for the delay and projected completion date in writing. These revisions are consistent with current FEMA guidance and are not substantive policy changes.

FEMA also proposes to require that the recipient base the justification for an extension under this paragraph on extenuating circumstances beyond the recipient's and subrecipient's control. This requirement is similar to the provision in paragraph (c)(2)(ii) requiring that an extension be based on extenuating circumstances or unusual project requirements beyond the control of the subrecipient and would better align these closely related provisions.

See

PAPPG at 196-97.

Also, in paragraph (d)(2), FEMA proposes to clarify that while FEMA will not provide Federal funding for a project if the work is not completed, FEMA may provide Federal funding for the completed portion of that project if the completed work is distinct from uncompleted work.

Existing paragraph (e)(2) describes how a subrecipient requests additional funding for a cost overrun and FEMA's procedures for cost overruns for small projects. We propose to move the provisions relating to small projects to a new paragraph (e)(3) to more clearly differentiate between the treatment of large and small projects.

We propose to rewrite portions of paragraph (e)(2) to improve readability and to clarify that subrecipients may, but are not required to, submit requests for additional funding. These are non-substantive edits and only meant to improve clarity. We also propose to add a new sentence stating that subrecipients should make the request for additional funding as soon as practicable to give FEMA and the recipient an opportunity to inspect the uncompleted project to validate that the additional costs are eligible. The addition emphasizes the importance of timeliness in alerting the recipient and FEMA of potentially significant changes in eligible funding to allow time for the recipient or FEMA to make interim inspections of the projects, if necessary. Submitting requests as soon as practicable also protects the subrecipient by allowing for approval of reimbursement for the cost overruns before project closeout. Significant overruns that are not submitted until closeout of a project may be more difficult to justify, and the subrecipient may be severely impacted if the overruns are not approved.

The remainder of paragraph (e)(2) addresses cost overruns of small projects. We propose to include this language in new paragraph (e)(3) with one revision. We propose to specify that the subrecipient may submit a request for additional funding within 90 calendar days following the completion of the last small project, instead of an appeal in accordance with existing section 206.206 within 60 days. Consistent with section 423 of the Stafford Act, 42 U.S.C. 5189a, appeals under existing section 206.206 are for decisions regarding eligibility, whereas cost overruns for small projects are financial reconciliation matters that should be handled following procedures related to payment of claims. This proposed revision would provide a deadline for handling cost overruns for small projects under these financial accounting procedures, separate from the formal appeal process under existing section 206.206. Subrecipients would still be able to submit an appeal if FEMA denies the request for additional funding, but proposed paragraph (e)(3) would not specifically reference appeals.

FEMA proposes to revise paragraph (f) to remove the statement that progress reports must describe the status of those projects on which a final payment of the Federal share has not been made to the recipient and outline any problems or circumstances expected to result in noncompliance with the approved grant conditions. Since there may be projects that remain open after payment of the final Federal share has been made to the recipient, we propose rewording this requirement for clarity. For example, if FEMA has provided final payment to the recipient, but the recipient has not yet submitted payment to the subrecipient, the recipient would still be required to provide a progress report. FEMA proposes to revise paragraph (f) to instead state that progress reports must describe the status of open large projects. These amendments would align with current FEMA guidance on progress reports.

See

PAPPG at 193 (“FEMA requires the Recipient to report on the status of all open Large Projects on a quarterly basis.”).

vii. Section 206.205 Payment of Claims (Proposed 206.206)

Section 206.205(a) (proposed 206.206(a)) addresses small projects and currently provides that “Final payment of the Federal share of these projects will be made to the recipient upon approval of the Project Worksheet.” We propose to replace “Project Worksheet” with “Project Application,” consistent with the pending revision to FEMA's Public Assistance forms, and to remove the word “final” out of recognition that FEMA may occasionally need to adjust funding after approval of the Project Application—for example, to account for a net small project overrun or actual insurance proceeds. Similarly, we propose specifying that recipients must make payment of the Federal share of

small projects to the subrecipient as soon as practicable after Federal approval of funding “consistent with State or Tribal laws.” This is not a new requirement, and we only propose including this statement in the regulations to improve clarity. We also propose several non-substantive style edits to paragraph (a) to improve consistency and readability.

Paragraph (a) addresses small projects and currently requires the recipient to certify that all small projects were completed in accordance with FEMA approvals and that the contribution to the non-Federal share has been made to each subrecipient, if applicable. We propose revising paragraph (a) to add that the recipient must make this certification within 90 calendar days of the last approved small project completion date of record. This 90-day deadline is consistent with current Public Assistance program guidance on small projects,

and would provide recipients with a clear requirement for maintaining an efficient and timely administrative process. Currently, closeout sometimes extends significantly beyond the completion of the work, causing long administrative delays. FEMA believes imposing this deadline would allow recipients sufficient time to make the required certification, while also helping prevent undue delays and reducing burden on FEMA, but we request comment on the potential impact of this proposed change.

See

PAPPG at 199-200.

Paragraph (b) addresses large projects. Paragraph (b)(1) currently requires the recipient to submit an accounting to FEMA of each large project as soon as practicable after the subrecipient has completed the approved work and requested payment. We propose revising paragraph (b)(1) to require more specifically that the subrecipient submit a cost documentation for each large project to the recipient for final payment within 90 days of completion of the approved scope of work for that Project Application, and that the recipient submit the accounting for each large project to the Regional Administrator as soon as practicable, but not to exceed 90 calendar days after the subrecipient has submitted documentation for final payment. We also propose adding a new paragraph (b)(4) providing that the Regional Administrator could approve extensions when requested in writing by the recipient. Consistent with other requests for extensions, the recipient would be required to make these requests in advance of the initial deadline. As with the deadline proposed in paragraph (a), FEMA believes these time constraints would reasonably balance the practical need to allow recipients and subrecipients sufficient time to submit the required documentation with FEMA's interest in the efficient administration of the Public Assistance program. These deadlines would avoid lengthy delays by reducing the time it takes to close out projects. They would also require the recipient to make an accounting before documentation is irretrievable, which would improve accountability and transparency in program administration. The proposed 90-day timeframe is consistent with current Public Assistance program guidance.

We request comment on the potential impact of this proposed change.

See

PAPPG at 200.

The last sentence of paragraph (b)(2) currently states that if the Regional Administrator determines that eligible costs exceed the initial approval, he/she will obligate additional funds as necessary. We propose to revise this sentence to state that if the Regional Administrator determines that eligible costs vary from the approved estimate, then he/she will adjust the funding (increase or decrease) to reflect the eligible actual costs, as necessary. This revision clarifies that the Regional Administrator does not just determine whether costs exceed the initial approval, which would require the obligation of additional funds. Rather, the Regional Administrator looks for any discrepancies between the approved and actual costs and will adjust funding as necessary, based on whether costs are more or less than the initial approval.

As explained above in reference to section 206.200, we propose to move the requirement in 206.200(b)(2)(ii), relating to the prompt payment of the Federal share to the subrecipient, into proposed 206.206. Specifically, we propose adding a new paragraph (b)(3) requiring that the recipient make payment of the Federal share to the subrecipient as soon as practicable after the Federal obligation of funding, consistent with State or Tribal laws. This is a non-substantive change that would simply reorganize and clarify an existing requirement and is consistent with the changes proposed in 206.205(a) (proposed 206.206(a)) discussed above.

viii. Section 206.206 Appeals (Proposed 206.207)

FEMA proposes no substantive changes to this section. The proposed rule would redesignate the section as 206.207, to account for proposed new section 206.204, and would revise the cross references to the definitions in section 206.201 to reflect the proposed removal of the paragraph designations there.

ix. Section 206.207 Administrative and Audit Requirements (Proposed 206.208)

In section 206.207(a) (proposed 206.208(a)), we propose to remove the reference to 2 CFR part 3002, since that part now only references 2 CFR part 200, and instead simply refer directly to the applicable requirements of part 200. That part applies generally to Public Assistance awards except where inconsistent with the Stafford Act or FEMA's regulations. We propose similar revisions in paragraphs (b)(1)(iii) (G)-(H) and (c)(1)-(2) to remove references to part 3002 and provide more specific citations to the audit requirements of part 200.

Section 324 of the Stafford Act authorizes FEMA to provide funding for management costs incurred in the administration of the Hazard Mitigation Grant Program and the Public Assistance program. Section 324 was implemented in FEMA's regulations at 44 CFR part 207. Existing section 206.207(b)(1)(iii)(K) references these provisions, requiring State administrative plans to include procedures for determining the reasonable percentage or amount of pass-through funds for management costs provided under part 207. Section 1215 of DRRA amended section 324 of the Stafford Act to require FEMA provide funding for management costs at specific percentage rates for recipients and subrecipients. FEMA has implemented the DRRA section 1215 amendments via policy,

but new regulations have yet to be issued. Since recipients are no longer required to determine reasonable pass-through amounts, we propose removing the existing provision in paragraph (b)(1)(iii)(K) as it is no longer relevant to administrative plans.

See

Hazard Mitigation Grant Program Management Costs (Interim), FP 104-11-1 (Nov. 14, 2018), available at

https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1215-hazard-mitigation-grant-program-management-costs-interim-policy.pdf

; Public Assistance Management Costs (Interim), FP 104-11-2 (Nov. 14, 2018), available at

https://www.fema.gov/sites/default/files/2020-07/pa_management_costs_interim_policy.pdf

We propose to revise paragraph (b)(1)(iii)(K) to require State/Tribal administrative plans to include procedures for ensuring timely closeout of subawards, subrecipients, and awards. Existing section 206.207 does not explicitly require administrative plans to include procedures for timely

closeout, but recipients are subject to the closeout requirements outlined in 2 CFR 200.344 and should already have such procedures in place. Timely closeout is consistently an issue when administering the Public Assistance program, and this proposed revision is intended to assist FEMA in expediting project and program closure.

Paragraph (b)(3) addresses submission and amendment of administrative plans. We propose to delete the first sentence of this paragraph, which refers to the 1989 deadline for submission of the first plan. Every State has submitted a first plan, so this language is now obsolete. We also propose revising the rest of existing paragraph (b)(3) to improve clarity, including to clarify that an administrative plan is required regardless of whether there is an emergency declaration or a major disaster declaration. This is a non-substantive change.

We propose one other change to paragraph (b)(3), relating to recipient staffing plans. Paragraph (b)(1)(ii) already requires recipients to prepare a staffing plan for administering the Public Assistance program as part of the State/Tribal administrative plan. We now propose to add a requirement that when a recipient prepares amendments to its State/Tribal administrative plan after a disaster, the amendments include a disaster-specific staffing plan. A staffing plan identifies all Public Assistance staffing functions, sources of staff to fill these functions, and the management and oversight responsibilities of each position. The staffing plan should identify the number of positions needed by each function for various size disasters and include procedures for determining staffing and budgeting requirements necessary for program management. Disaster-specific staffing plans should address changes in staffing requirements during a particular disaster, for example, when a joint field office is closed, and fewer staff are needed to administer the program. Each recipient would, therefore, have an overarching plan in place before disasters hit and would be able to refine any such plan to address the specific needs of a disaster once it occurs and throughout the response and recovery effort. Including a revised staffing plan when preparing amendments to the State/Tribal administrative plan would provide the opportunity to discuss and resolve any disagreements. This is particularly helpful if mutual aid for program management, through the Emergency Management Assistance Compact, is a possibility. FEMA's administrative plan template already includes a comprehensive staffing plan, and that information is expected to be amended for each Federally declared emergency or major disaster declaration. These proposed changes are intended to improve administrative plans, which was a goal supported by the NAC in its recommendation.

See

NAC Memo, Recommendations on the Stafford Act and Related Federal Regulations: Public Assistance and Individual Assistance Issues, at 2 (Aug. 19, 2008), available at

https://www.fema.gov/pdf/about/nac/hp/stafford_act_rec_081908.pdf

x. Section 206.208 Direct Federal Assistance (Proposed 206.209)

Section 206.208 (proposed 206.209) lays out FEMA's regulations relating to direct Federal assistance (DFA), which may be requested when a State or Tribal government lacks the capability to perform or to contract for eligible emergency protective measures or debris removal.

We propose to revise the first sentence in paragraph (a) of this section to remove the reference to local governments. Requests for DFA are made at the State or Tribal government level, so we propose this change to avoid confusion. We also propose to replace “emergency work and/or debris removal” with “emergency protective measures or debris removal.” FEMA splits emergency work into two categories: debris removal and emergency protective measures. Current paragraph (a) is potentially confusing, as it refers to the both the broader term “emergency work” and the more specific term “debris removal.” We propose this non-substantive revision to more accurately reflect the way FEMA categorizes emergency work.

Additionally, we propose expanding the statutory references in paragraph (a) to include Stafford Act sections 402, 418, 419, 502(a)(4) and (6), and 503. Section 402 covers general Federal assistance that FEMA may provide in a major disaster. Paragraph (a) currently references 402(1) and (4), but the proposed revision would expand the reference to section 402 as a whole. Sections 418 and 419 authorize the President to establish temporary communications systems and temporary public transportation. DFA is the only way to provide funds under sections 418 and 419 of the Stafford Act, so adding these two provisions clarifies the potential Federal role. Section 502 authorizes the President to direct any Federal agency to provide emergency assistance. Current paragraph (a) references 502(a)(1), (5), and (7), but the proposed revision would expand that to include 502(a)(4) and (6), which concern emergency assistance through Federal agencies and assistance under Stafford Act section 408. Section 503 addresses the amount of assistance the President may provide for emergency assistance. These additions are a non-substantive change that would improve clarity for the reader and do not reflect a change in statutory authority.

We propose a few clarifying revisions to paragraph (b)(2). First, we propose replacing the words “statement as to the reasons” with “certification and explanation from” in order to more accurately reflect the form of a recipient's submission that it cannot perform or contract for performance of the requested work. Second, we propose to specify that this certification and explanation must come from the State or Indian Tribal government. Finally, we propose including Indian Tribal governments as one of the entities that must not be able to perform or contract for performance of the requested work. These are only revisions for clarity and would not represent substantive changes in policy.

We propose revising paragraph (c)(1) to replace the first instance of “Regional Administrator” with “FEMA.” This revision would clarify that some requests for DFA may be approved by FEMA headquarters instead of by a Regional Administrator. We also propose clarifying that when FEMA (whether a Regional Administrator or headquarters) approves a request for DFA, FEMA may perform or contract for the work itself or will, as appropriate, issue a mission assignment to another Federal agency. This is not a substantive change in policy; because the current regulatory language does not make explicit that FEMA may handle the DFA work itself, we are proposing such an addition for clarity. Paragraph (c)(1) also incorrectly indicates that FEMA issues the mission assignment via a letter to the Federal agency performing the mission assignment. FEMA issues a mission assignment using various OMB-approved forms, not via a letter. Therefore, we propose to remove the reference to a mission assignment “letter.” Although an actual letter is not used, the substance of the mission assignment remains the same. This is not a substantive change.

In paragraph (c)(2), we propose non-substantive edits to improve clarity, including the addition of the words “more specific” before “statutory authority of another Federal agency.” The relevant restriction derives from appropriations law that prohibits augmentation of a Federal agency's purpose,

i.e.,

expanding into another Federal agency's jurisdiction or area of authority. FEMA characterizes this issue

as “duplication of programs.” The proposed edit here is to improve clarity and is non-substantive.

In paragraph (d), we propose to clarify that the time limit for completion of work by a Federal agency under a mission assignment is 60

calendar

days after the President's declaration. The time limit has always been calculated using calendar days, but we propose making that explicit to improve clarity.

In paragraph (e), we propose only minor non-substantive edits.

xi. Section 206.209 Arbitration for Public Assistance Determinations Related to Hurricanes Katrina and Rita Hurricanes Katrina and Rita (Major Disaster Determinations DR-1603, DR-1604, DR-1605, DR-1606, and DR-1607) (Proposed 206.210)

FEMA proposes no substantive changes to this section. The proposed rule would redesignate the section as 206.210, update cross-references to other sections in part 206 consistent with the other changes proposed in this rule and replace the term “Project Worksheet” with “Project Application,” consistent with FEMA's pending update of its Public Assistance forms.

D. 44 CFR Part 206, Subpart H—Public Assistance Eligibility

i. Section 206.220 General

FEMA proposes only non-substantive stylistic edits to this section to improve clarity.

ii. Section 206.221 Definitions

In section 206.221, FEMA proposes to remove the top-level paragraph designations in the section and reorder the definitions alphabetically.

FEMA proposes to add new definitions for the terms “assistance animal,” “household pet,” and “service animal.” These proposed definitions are currently used in FEMA's Public Assistance guidance.

Their addition to section 206.221 is not intended to change their meaning, but simply to improve clarity and consistency in the regulations.

See

PAPPG at 119.

FEMA proposes to define “assistance animal” as an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates identified symptoms or effects of a person's disability. Although dogs are the most common type of assistance animal, other animals can also be assistance animals. This definition is based on the definition found in U.S. Department of Housing and Urban Development (HUD) guidance.

See

HUD, Office of Fair Housing and Equal Opportunity, Notice FHEO-2020-01 (Jan. 28, 2020), available at

https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf

FEMA proposes to define “household pet” as a domesticated animal that is traditionally kept in the home for personal rather than for commercial purposes, can travel in commercial carriers, and be housed in temporary facilities. Household pets do not include reptiles (except turtles), amphibians, fish, insects/arachnids, farm animals (including horses), and animals kept for racing purposes. This definition is based on HUD's definition of household pets found in 24 CFR 5.306 and is consistent with FEMA's current guidance.

See

PAPPG at 119.

FEMA proposes to define “service animal” as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Our proposed definition of “service animal” is based on the Americans with Disabilities Act (ADA), 42 U.S.C. 12101

et seq.,

and the U.S. Department of Justice's implementing regulations at 28 CFR 36.104.

FEMA proposes to update the definition of “educational institution” by adding references to Title 20 of the U.S. Code. The references to the terms “elementary school,” “secondary school,” and “institution of higher education” have not been updated since FEMA promulgated 44 CFR 206.221 in 1990.

FEMA proposes to update the references to these terms to reflect where they are defined in current law. The Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, Public Law 114-95, defines the terms “elementary school” and “secondary school.” The Higher Education Act of 1965, as amended, defines the term “institution of higher education.” All three definitions are codified in Title 20 of the U.S. Code (currently found at 20 U.S.C. 7801(19), 7801(45), and 1001(a), respectively).

See

55 FR 2307 (Jan. 23, 1990).

We also propose to clarify several definitions in this section. First, we propose to revise the definition of “immediate threat., which is currently defined as the threat of additional damage or destruction from an event that can reasonably be expected to occur within five years. The term “immediate threat” is used in the criteria that must be met for debris removal and emergency protective measures to be eligible for assistance. Some threats caused by a declared incident are threats in the context of some future incident, such as erosion to a beach creating the threat of damage to improved property in the event of flooding from a 5-year storm.

Other threats are more direct, such as broken tree limbs or branches that are overhanging improved property or public-use areas and creating the threat of injury or damage to improved property if they fall.

We propose revising this definition to better describe these two types of threats. We propose moving the existing definition to a new paragraph and revising it to clarify that the five-year period is from the date of the declared disaster and that, for flood incidents specifically, an immediate threat is a threat from a five-year flood (a flood that has a 20 percent chance of occurring in any given year). We also propose replacing the phrase “the threat of additional damage or destruction” in the existing definition with the phrase “the threat to lives or public health and safety, or of damage.” This change would clarify that the definition encompasses the full range of risks not just to improved property, but also to individuals and public health and safety that are at issue in debris removal and emergency protective measures determinations. We propose removing the word “destruction” because it is redundant with “damage,” and we propose removing the word “additional” to reflect that immediate threats may exist prior to any initial damage or destruction having occurred. In other words, reasonable expenses incurred in anticipation of and immediately preceding a declared incident may also be eligible. We propose adding a new paragraph covering the more direct type of immediate threats mentioned above. This new paragraph would provide that immediate threat includes an imminent danger requiring an urgent response to address serious risks to lives or public health and safety, or to avoid damage from an incident. These proposed revisions are consistent with FEMA's guidance on this issue

and are only intended to clarify the regulations. We do not seek to make substantive changes to how we assess immediate threats for

the purposes of debris removal or emergency protective measures. We specifically request public comment on the proposed revisions to this definition and whether the new definition would accurately capture how the term is used in the Public Assistance program.

See

PAPPG at 104.

See

PAPPG at 102.

See

PAPPG at 97-139.

“Improved property” is currently defined as a structure, facility, or item of equipment which was built, constructed, or manufactured. The term “facility” is currently defined in section 206.201 as “any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.” As discussed above, we propose to revise that definition by replacing the word “works” with “structure,” because the latter term is more commonly used in FEMA's regulations and guidance. Accordingly, we propose to remove the word “structure” from the definition of “improved property” in section 206.221 as it would be redundant. Additionally, although the current definition of “improved property” encompasses facilities, and “facility” is defined in section 206.201 as including improved and maintained natural features, there has been confusion as to whether improved and maintained natural features are improved property. To address this confusion and make clear that improved property does include improved and maintained natural features, FEMA proposes to revise the definition of “improved property” to explicitly include improved and maintained natural features. The current definition also states that land used for agricultural purposes is not improved property. For clarity, we propose to add crops and livestock as examples of agricultural purposes.

In the definition of “private nonprofit facility” (existing paragraph (e)), the introductory text lists the types of eligible private nonprofit (PNP) facilities, and the succeeding paragraphs provide more detailed definitions for each type. We propose revisions to update the introductory text to reflect current statutory language in section 102(11)(A) of the Stafford Act, which provides a definition of PNP facility. First, both section 102(11)(A) and the paragraph defining “utility” (existing (e)(3)) include an item for irrigation facilities, but they were inadvertently omitted from the list in the introductory text to the regulatory definition. We propose to correct this oversight and add irrigation facilities to this list. This is a technical, non-substantive change.

Second, we propose to add “rehabilitational” to the introductory text and add a new paragraph defining “rehabilitational facility.” This term has been in section 102 since 1988,

but was inadvertently omitted from the introductory text and paragraphs here. We propose to define “rehabilitational facility” as a facility that provides alcohol and drug treatment and other rehabilitational services. FEMA intends for this definition to clarify the distinction between this term and the separate term “rehabilitation facility,” which is used in the paragraph definitions of “medical facility” and “essential social service facility.” While the latter term refers to more traditionally medical-focused treatment of injury or disease, a “rehabilitational facility” as proposed to be defined offers treatment of substance use disorders and related services. This proposed definition would not represent a substantive policy change or alter FEMA's implementation of section 102(11)(A) of the Stafford Act. FEMA is proposing it to ensure consistency between the statute and regulations and improve clarity for the public.

See

Public Law 100-707, 102 Stat. 4689, 4690.

Third, we propose to add “center-based childcare” to the proposed introductory text and add a new paragraph defining “center-based childcare.” Section 1238(b) of DRRA amended section 102(11)(A) of the Stafford Act to add “center-based childcare” to the definition of “private nonprofit facility.” Our proposed additions in the definition would implement this statutory change. In the proposed paragraph, we would define “center-based childcare” as a private nonprofit facility that the State or Tribal Department of Children and Family Services, Department of Human Services, or similar agency, recognizes as a licensed childcare facility. This definition is consistent with FEMA's current guidance on childcare facilities,

and does not represent a substantive policy change.

See

PAPPG at 48.

Fourth, we propose to revise the introductory text to the definition to reflect changes in the Bipartisan Budget Act of 2018. Section 20604(a) of the Bipartisan Budget Act of 2018 amended section 102(11)(A) of the Stafford Act to provide that the definition of PNP facilities includes educational facilities without regard to the religious character of the facility and amended section 102(11)(B) to replace the term “essential services of a governmental nature” with the term “essential social services.” To incorporate these amendments in FEMA's regulations, we propose revising the introductory text to the definition to replace “educational” with “educational (without regard to the religious character of the facility)” and to replace “essential governmental type services” with “essential social services.” FEMA proposes the change from “essential governmental type services” to “essential social services” to conform FEMA's regulations with the current statutory text. This change would not represent a substantive change in policy.

42 U.S.C. 5122(11)(B).

The fifth revision we propose within the introductory text to the definition of “private nonprofit facility” is to remove the term “aged and disabled” and replace it with “older adults and persons living with disabilities.” Terminology has changed since the original drafting of § 206.221 and FEMA proposes this change to align with more updated terminology. This change would not represent a substantive change in policy.

The last revision we propose to the introductory text to the definition of “private nonprofit facility” is to remove the words “and such facilities on Indian reservations” and “Further definition is as follows” from the end. The reference to facilities on Indian reservations has no practical impact on facility eligibility and causes confusion. Section 102(11)(A) of the Stafford Act, 42 U.S.C. 5122(11)(A), includes in the definition of “private nonprofit facility” a category for facilities on reservations, to be defined in regulation. However, neither the existing nor proposed regulations include a definition for facilities on reservations. As such, only the specific facility types named in the definition (existing paragraph (e)) are eligible, and they are eligible regardless of whether they are located on a reservation. We propose removing the reference to facilities on Indian reservations to avoid confusion. This revision would not change which facilities are eligible. Similarly, the mention of “further definition” in the last sentence is unnecessary, and we propose to remove it to simplify the paragraph and improve clarity.

The paragraph defining “educational facilities” to the definition of “private nonprofit facility” (existing (e)(1)), currently states that they are classrooms plus related supplies, equipment, machinery, and utilities of an educational institution necessary or appropriate for instructional, administrative, and support purposes. We propose to explicitly limit this definition to PNP facilities, for the sake of clarity, and to explicitly include in the definition “related buildings.” FEMA has found that many educational

facilities have buildings that may contain support functions in addition to classrooms, for example, dormitories. These buildings may be essential to the provision of the school's educational services, but the current regulation is not clear as to their eligibility. We propose to clarify that related buildings are indeed eligible, consistent with current FEMA practice and guidance.

This proposed revision is not substantive. Also, in this paragraph, we propose to remove the word “machinery” as it is already encompassed by the word “equipment,” which immediately precedes it. This is a non-substantive change intended to simplify the provision and prevent confusion. Further, we propose to remove from this paragraph the exclusion of buildings, structures, and related items used primarily for religious purposes or instruction. Consistent with the proposed revisions to the introductory text in the proposed definition, this proposed change would reflect the amendments to the Stafford Act in section 20604(a) of the Bipartisan Budget Act of 2018, which specifically provided that an educational facility could qualify as a PNP facility regardless of its religious character.

See

PAPPG at 45.

In the proposed edits to the paragraph defining “utility” (existing (e)(2)), we propose to explicitly limit the application of the definition to PNP facilities, for the sake of clarity, and to further clarify that PNP irrigation facilities are not considered “utilities” under this paragraph. This is to avoid any possible confusion that such facilities are also considered utilities. Instead, a proposed paragraph (existing (e)(3)) would separately define PNP irrigation facilities.

In the proposed paragraph defining “medical facility” (existing (e)(5)), we propose to make a technical correction to the citation. The current citation, 42 U.S.C. 2910, should be 42 U.S.C. 291o.

In the proposed paragraph defining “essential social service facility” (existing (e)(7)), we propose a number of revisions. First, we propose to revise the defined term “other essential governmental service facility” to “essential social service facility.” Section 20604(a) of the Bipartisan Budget Act of 2018 amended section 102(11)(B) of the Stafford Act to redefine this term, and this revision would update FEMA's regulations to reflect that. Section 20604(a) also added “houses of worship” to the list of eligible PNP facilities, and we accordingly propose to add “house of worship” to the list of eligible PNP facilities in the proposed paragraph. Second, we propose adding the words “a private nonprofit facility” to explicitly limit this definition to PNP facilities, for the sake of clarity. Third, we propose adding performing arts facilities and community arts centers as eligible PNP facilities. Section 688 of PKEMRA amended section 102 of the Stafford Act to add performing arts facilities and community arts centers as eligible PNP facilities, and this revision would update FEMA's regulations to reflect that. Fourth, we propose adding food banks as eligible PNP facilities. Section 1214 of the DRRA amended section 102 of the Stafford Act to include food banks as eligible PNP facilities, and this revision would update FEMA's regulations to reflect that. Fifth, we propose adding broadcasting facilities as eligible PNP facilities. Section 2(a) of the Emergency Information Improvement Act of 2015 amended section 102 of the Stafford Act to include broadcasting facilities as eligible PNP facilities and this revision would update FEMA's regulations to reflect that. The proposed revisions would reflect the current statutory language, which provides that these categories of PNPs are eligible to receive PA funding, and are consistent with current FEMA guidance.

Under this proposed rule, the paragraph would list the following facility types: museums, zoos, performing arts facilities, community arts centers, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, shelter workshops, food banks, broadcasting facilities, houses of worship, and facilities that provide health and safety services of a governmental nature.

See

PAPPG at 43, 46.

“Shelter workshop” and “senior citizen centers” are the terms used in section 102 of the Stafford Act, 42 U.S.C. 5122(11)(B), but other facilities providing services for individuals with disabilities and/or older adults may qualify for assistance if they meet the standards for one of the other facility types.

See

PAPPG at 43-47.

We further propose revising the last sentence of the paragraph defining “essential social service facility” to replace “All such facilities must be open to the general public” with “such a facility must provide essential social services to the general public.” This revision would better align FEMA's regulations with the language of the Stafford Act, as amended by section 20604(a) of the Bipartisan Budget Act of 2018 and improve clarity. Section 102(11)(B) of the Stafford Act requires that facilities provide essential social services to the general public in order to qualify as eligible PNP facilities under the statute, and also provides that houses of worship may not be excluded from the definition of PNP facility on the grounds that leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice. As currently written, one could interpret the last sentence to require that PNPs allow members of the public open access to their facilities or not restrict leadership or membership, instead of simply providing services to the public. The proposed revision to this sentence would avoid that potential confusion and ensure that it is interpreted consistently with the statutory requirements.

Next, FEMA proposes to revise the definition of “private nonprofit organization.” In proposed paragraph (1) in the definition (existing (f)(1)), FEMA proposes to update the outdated reference to the Internal Revenue Code of 1954. The current authority is the Internal Revenue Code of 1986, as amended. This revision is also proposed in section 206.2 under the definition of “private nonprofit organization.” In proposed paragraph (2) (existing (f)(2)), FEMA proposes to remove the words “nonrevenue producing” and add a reference to Tribal law to make the definition consistent with section 206.2(a)(19)(ii). The definitions should be uniform, and FEMA currently applies the definition as it appears in section 206.2.

Lastly, we propose to add new paragraph (3) to allow private nonprofit organizations that are exempt from the requirements to apply for Internal Revenue Code section 501(c)(3) status or applicable State or Tribal tax exempt status to establish their status through (1) articles of association, bylaws, or other organizing documents indicating that it is an organized entity and (2) a certification that it is compliant with section 501(c)(3) of the Internal Revenue Code and State or Tribal law requirements. Consistent with the addition proposed in section 206.2(a)(19)(iii), discussed above, this proposed addition is meant to ease the burden for certain private nonprofit organizations that are not able to establish their nonprofit status under proposed paragraphs (1) or (2).

FEMA proposes maintaining this definition in both sections to improve readability. Section 206.221 includes several provisions regarding PNPs and including the definition there would help avoid confusion and the need to cross-reference section 206.2.

Finally, eligibility for Public Assistance is dependent on the existence of an eligible facility, but the agency recognizes that care for vulnerable populations such as those for

older adults and persons with disabilities, has evolved since the original drafting of FEMA's regulations. FEMA seeks comment on whether its definition of “private nonprofit facility” is sufficiently broad to encompass all private nonprofit organizations providing service to older adults and persons with disabilities that are eligible to receive public assistance under the Stafford Act. Stakeholders should identify gaps that might be addressed if FEMA offered further amendment to the definition of “private nonprofit facility” in the final rule.

iii. Section 206.222 Applicant Eligibility

Section 206.222 lists the entities that are eligible to apply for Public Assistance through the recipient. We propose to revise paragraph (c) to replace “Indian tribes” with “Indian Tribal governments,” for consistency with the definition at 44 CFR 206.201 and the Stafford Act. Neither this nor the other changes proposed in this section are substantive.

iv. Section 206.223 General Work Eligibility

Section 206.223 describes general work eligibility. Paragraph (a) lists general eligibility requirements for an item of work. We propose to revise paragraph (a)(2) to clarify that emergency operation center activities are eligible even if they are located outside of the designated area. It is FEMA's practice to allow for emergency operations center activity

under paragraph (a)(2), and the change would simply update the regulatory text for clarity and consistency.

See

PAPPG at 52.

Paragraph (b) specifically addresses PNP facilities. For work on PNP facilities to be eligible for financial assistance, an organization meeting the definition of a “private nonprofit organization” in section 206.221 must own or operate the PNP facility. FEMA proposes to rewrite paragraph (b) to improve clarity for the reader. Additionally, these edits would correct the language that says facilities must be owned “and” operated to read owned “or” operated, in conformance with 44 CFR 206.222(b) and FEMA's application of the requirement.

FEMA proposes to consolidate paragraphs (c) and (d) into a revised paragraph (c) titled “

Rural community, unincorporated town or village, or other public entity facilities.”

Section 102(8)(C) of the Stafford Act provides that the term “local government” includes “a rural community, unincorporated town or village, or other public entity, for which an application for assistance is made by a State or political subdivision of a State.” Section 206.223(c) properly reflects that facilities owned or operated by public entities are eligible for financial assistance, but paragraph (d) only discusses facilities serving a rural community or unincorporated town or village that are owned by a PNP. While it is correct that work performed on PNP facilities may be eligible, this is already addressed by paragraph (b) and confuses what are separate issues. Facilities serving a rural community or unincorporated town or village are also eligible if they are the legal responsibility of the rural community or unincorporated town or village itself. To improve clarity, we propose revising paragraph (c) to cover rural communities, unincorporated towns or villages, and other public entities together, consistent with the statutory language.

Per the above changes, existing paragraph (e) would be redesignated paragraph (d), and FEMA further proposes to add a new paragraph (e) addressing duplication of benefits. This new paragraph would describe the recipient's and subrecipient's obligations to notify FEMA of available benefits and to pursue recovery of available benefits, and would reiterate that FEMA will disallow or recoup duplicate benefits. We propose adding this new paragraph (e) to improve usability for readers and emphasize these requirements in the relevant section of the regulations. Nothing in proposed paragraph (e) is a new requirement. The provision is based on section 312(c) of the Stafford Act, which requires FEMA to recover other assistance that is available. For example, if a recipient or subrecipient did not receive insurance proceeds because they did not present the claims or assert the legal rights, FEMA would deduct the value of those unasserted rights to insurance proceeds from the Public Assistance grant amount.

v. Section 206.224 Debris Removal

In paragraphs (a) and (b), we propose to make non-substantive stylistic edits to make the provisions easier to understand. The proposed edits would not change the meaning of these paragraphs.

We also propose to revise paragraph (a)(4) to provide that the Regional Administrator must approve extensions of the two-year deadline to complete debris removal under the terms of that paragraph, instead of the Assistant Administrator for the Disaster Assistance Directorate (now the Recovery Directorate). FEMA believes the Regional Administrator is best positioned to determine whether an extension is appropriate, and that approval at the Assistant Administrator level is not necessary in this situation. The delay and administrative burden of a lengthier review process, which is required for approval by the Assistant Director, outweigh any marginal benefit it may have.

vi. Section 206.225 Emergency Work

FEMA proposes to revise the heading of this section from “Emergency work” to “Emergency protective measures.” FEMA splits emergency work into two categories: debris removal and emergency protective measures. Currently, the heading of sections 206.224 and 206.225 are confusing as both concern emergency work, but only section 206.225 is entitled “emergency work.” We propose to revise the heading of this section to more accurately reflect the way FEMA categorizes emergency work. Similarly, in paragraph (a)(2), we propose to replace “emergency work” with “emergency protective measures.” These are non-substantive changes intended to improve clarity.

Also, in paragraph (a)(2), we propose replacing “cope with” with “eliminate, lessen, or avert,” and in paragraph (a)(3) we propose adding “avert” to “eliminate” and “lessen.” “Avert” is used in the current definition of “emergency work” in 206.201, as well as in section 502 of the Stafford Act. These proposed changes in paragraph (a) are non-substantive and would simply ensure clear, consistent language throughout part 206.

In paragraph (a)(3)(ii), we propose to remove the word “additional.” Emergency protective measures authorized under section 403 or 502 of the Stafford Act include work that eliminates, lessens, or averts immediate threats of significant damage to improved public or private facilities. The Stafford Act does not limit emergency protective measures to “additional” damage to improved facilities. That is, FEMA does not currently limit emergency work to “additional” damage, and FEMA reimburses emergency protective measures that protect a facility prior to damage. For example, emergency protective measures such as sandbagging, bracing/shoring structures, and construction of temporary levees are eligible for reimbursement. Removal of the word “additional” is a non-substantive change.

FEMA proposes to revise paragraphs (c) and (d) to clarify that pursuant to these provisions FEMA provides emergency communications and emergency public transportation in the form of direct Federal assistance. In paragraph (c), this new language would replace the existing statement about establishing and making emergency communications available to State and local government officials. Although this current language is a reasonably accurate description of the DFA process, FEMA believes it could be better worded to improve clarity. FEMA therefore proposes to explicitly describe this assistance as DFA. The proposed revision would not change how FEMA provides emergency communications or other types of DFA. Likewise, under section 206.225(a), emergency communications and emergency public transportation are only eligible to save lives, to protect public health and safety, and to protect improved property. Once those needs have been met, funding is discontinued. As there is no need to restate this requirement in paragraphs (c) and (d), FEMA proposes to remove the relevant sentence from each paragraph for clarity.

Additionally, FEMA proposes to add specific mention of appropriate auxiliary aids and services where necessary for effective communication and paratransit services for individuals with disabilities to paragraphs (c) and (d). FEMA currently provides DFA for these services,

and this proposed revision would not change that, but simply improve clarity and highlight to the reader the availability of this assistance, consistent with FEMA's obligation to provide accessible disaster assistance.

See

PAPPG at 114.

See

42 U.S.C. 5151, 29 U.S.C. 794.

FEMA proposes to add a new paragraph (e) to address the rescue, care, shelter, and essential needs of household pets, service animals, and assistance animals. Section 689(b) of PKEMRA and section 4 of the PETS Act amended section 403(a) of the Stafford Act to include as essential assistance the rescue, care, shelter, and essential needs of individuals with household pets and service animals and of such pets and animals. With the change to FEMA's statutory authority, the costs recipients and subrecipients expend to rescue, shelter, care for, and provide essential needs for household pets and service animals are reimbursable, and we therefore propose updating section 206.225 accordingly. Consistent with FEMA guidance on this issue,

proposed paragraph (e) includes “assistance animals,” since animals meeting the definition of that term proposed in section 206.221 would fall within the scope of section 403(a) of the Stafford Act.

See

PAPPG at 119.

42 U.S.C. 5170b(a)(3)(J)(ii) refers to “such pets and animals,” indicating that household pets and service and assistance animals are contemplated within our statutory authority.

FEMA proposes to add a new paragraph (f) to address the provision of temporary relocation facilities for essential community services, which is authorized by section 403(a)(3)(D) of the Stafford Act. As a result of a disaster, essential community services provided at public and PNP facilities may be disrupted to the extent that they cannot continue unless they are relocated to another facility. An applicant may request reimbursement for the reasonable costs for temporary facilities so that it can continue to provide its essential community services. Consistent with current FEMA guidance, paragraph (f) would define “essential community services” as those services performed by governmental entities or private nonprofit organizations that are necessary to save lives, protect and preserve property or public health and safety, or preserve the proper function and health of the community at large.

Proposed paragraph (f) would also include a non-exhaustive illustrative list of specific essential community services as previously provided in guidance. The temporary relocation provision in section 403(a)(3)(D) of the Stafford Act is not new and FEMA's administration of temporary relocation assistance is not changing; the proposed addition of paragraph (f) would simply provide additional information in the regulations to improve clarity and usability.

See

PAPPG at 130.

vii. Section 206.226 Restoration of Damaged Facilities

FEMA proposes to revise the introductory text in this section by adding a parenthetical after “restore” that reads “(repair, reconstruct, or replace),” which more clearly reflects the scope of projects that are eligible for Public Assistance funding under section 406 of the Stafford Act. We also propose revising this sentence to clarify that the restoration of facilities must be on the basis of their “predisaster design,” consistent with the term used in the definition in section 206.201. This is not a substantive change.

To improve clarity and readability, we propose to reorganize the paragraphs in this section to be in alphabetical order.

We propose to remove existing paragraphs (a)(2) and (3), which allow public elementary and secondary school facilities to receive assistance under the Stafford Act even though they may be otherwise eligible for assistance from the U.S. Department of Education. The exception was added on October 25, 1993, to provide an exception to FEMA's general practice of deferring to the authority of another Federal agency when both FEMA and the other agency have authority to grant assistance in response to a declared major disaster.

The change eliminated the overlap of FEMA and the U.S. Department of Education programs and any confusion resulting from that overlap. Due to changes made by the No Child Left Behind Act of 2001, 20 U.S.C. 6301, the U.S. Department of Education no longer has the authority to assist elementary and secondary schools in response to a disaster. Therefore, the exception is no longer necessary, and these paragraphs are no longer applicable. Removing these paragraphs is not a substantive change. FEMA will continue to provide assistance to public and eligible PNP elementary and secondary school facilities as otherwise authorized by 44 CFR part 206.

Disaster Assistance; Public Elementary and Secondary School Facilities Final Rule, 58 FR 55021 (Oct. 25, 1993).

In proposed paragraph (c) (existing (d)), we propose revising the heading to read “Codes and standards,” consistent with the other edits to this paragraph, discussed below. We also propose conforming edits elsewhere in the paragraph to change “standards” to “codes and standards.” We also propose designating the introductory text as paragraph (c)(2), adding a new paragraph (c)(1), and redesignating the remaining paragraphs accordingly.

Section 1235(b) of DRRA amended section 406(e) of the Stafford Act to require FEMA to fund repair, restoration, reconstruction, or replacement in conformity with “the latest published editions of relevant consensus-based codes, specifications, and standards that incorporate the latest hazard-resistant design and establish minimum acceptable criteria for the design, construction, and maintenance of residential structures and facilities . . . .” We propose to codify this requirement in our regulations in proposed paragraph (c)(1). Per the proposed revision to the definition of “facility” in section 206.201, the proposed language in proposed section 206.226(c)(1) does not include the word “structure.” FEMA has issued interim guidance on DRRA section 1235(b),

which defines the framework for consistent and appropriate implementation of this consensus-based codes, specifications, and standards requirement,

and this proposed addition to the regulations would not displace that guidance. The framework and details provided there would continue to apply; this proposed rule would simply incorporate the basic statutory requirement into the regulations. We also propose revising new paragraph (c)(2) (existing (d)) to provide that the costs of restoration under other Federal, State, Tribal, and local codes and standards are still eligible, provided that they (1) are at least as stringent as the applicable code or standard established in new paragraph (c)(1), and (2) meet the existing requirements being retained in proposed paragraphs (c)(2)(i)-(v). This proposed revision would ensure that the new DRRA-mandated consensus-based codes and standards apply, but also allow for the funding of projects under other codes and standards that meet or exceed that minimum. This proposed revision is consistent with FEMA's guidance on DRRA section 1235(b).

Consensus-Based Codes, Specifications and Standards for Public Assistance, FEMA Recovery Interim Policy FP-104-009-11 Ver. 2.1 (Dec. 20, 2019), available at

https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1235b-public-assistance-codes-standards-interim-policy.pdf.

See Id.

at 4.

In proposed paragraph (c)(2)(i) (existing (d)(1)), we propose removing “repair,” since it is redundant with “restoration.” This is consistent with the proposed revision to the introductory text of section 206.226, discussed above. We also propose removing the undesignated parenthetical between paragraphs (c)(2)(i) and (ii) (existing (d)(1) and (2)), which explains that standards may be different for new construction than for repair work. Removing this language would not be a substantive change, but simply improve the readability and clarity of the regulations; paragraph (c)(2)(i) would already make clear that different types of restoration may have different applicable codes and standards, so the parenthetical is redundant, and its location in the paragraph may cause confusion. In addition, we propose to remove existing paragraph (d)(3)(ii), which addresses standards for State governments until January 1, 2000, and local governments until January 1, 1999. This paragraph is no longer necessary because these dates have passed.

We propose to add a new paragraph (d) to address disaster damage. The requirement that, to be eligible for restoration under section 206.226, damage must be the result of a major disaster is a fundamental requirement of section 406 of the Stafford Act. Deterioration, loss of useful life, or aging of a facility are not damage caused by a disaster, and therefore do not qualify for Public Assistance funding. This proposed addition would emphasize the disaster damage requirement and improve clarity in the regulations.

Proposed paragraph (f) (existing (e)) addresses hazard mitigation and states that, in approving grant assistance for restoration of facilities, the Regional Administrator may require cost-effective hazard mitigation measures not required by applicable standards. Although it has been FEMA's policy to consider hazard mitigation measures when evaluating projects for Public Assistance grants,

FEMA proposes to add language clarifying that recipients and subrecipients may request cost-effective hazard mitigation measures when seeking grant assistance for the restoration of facilities to underscore the importance of hazard mitigation in the recovery from a disaster. In recognition that there are some projects in which hazard mitigation is not appropriate, or that some measures may not be cost-effective, the Regional Administrator must consider, but is not required to approve, all proposals for hazard mitigation.

See

PAPPG at 153.

Proposed paragraph (i) (existing (c)) lists the critical services that eligible PNP facilities must provide in order to be eligible for Public Assistance funding for permanent work without applying for a loan from the U.S. Small Business Administration. Section 689h of PKEMRA amended section 406(a)(3)(B) of the Stafford Act to include education as a critical service. To implement this new statutory authority, FEMA proposes to add “education” to this list of critical services. Similarly, the Emergency Information Improvement Act of 2015, Public Law 114-111, amended the list of critical services in section 406(a)(3)(B) of the Stafford Act to replace “communications” with “communications (including broadcast and telecommunications)”. FEMA proposes to make this same change to the list of critical services in this paragraph. FEMA also proposes to revise paragraphs (i)(1) and (2) (existing (c)(1) and (2)) to remove unnecessary cross-references and improve clarity and readability; these changes would not alter the current PNP eligibility requirements.

Proposed paragraph (j) (existing (g)) addresses approval of funding for relocation. Existing paragraph (g)(1) currently states that the Regional Administrator may approve funding for and require restoration of a destroyed facility at a new location when the facility is and will be subject to repetitive heavy damage, the approval is not barred by other provisions in 44 CFR, and the overall project, including all costs, is cost-effective. FEMA proposes three clarifying, non-substantive edits to proposed paragraph (j)(1).

First, we propose replacing the phrase “a destroyed facility” with “a damaged facility that is not repairable, per paragraph (k)(1) of this section.” Under proposed paragraph (k)(1) (existing (f)(1)), if the cost to repair a damaged facility exceeds 50 percent of the cost to replace the facility, it is considered not repairable. Damaged facilities that are not destroyed but that are not repairable are treated the same as destroyed facilities with respect to relocation assistance. The proposed change would make clear that the Regional Administrator may approve funding for and require relocation of these damaged, not repairable facilities. The proposed change would not affect the eligibility of destroyed facilities. Destroyed facilities are considered not repairable and would continue to be eligible for relocation assistance if the other requirements of proposed paragraph (j) are met.

Second, FEMA proposes to revise proposed paragraph (j)(1)(ii) to clarify that FEMA regulation

applicable statutory requirements must not bar relocation approval. Adherence to applicable statutory requirements is necessary even if those requirements are not explicitly invoked in FEMA regulations in Title 44 CFR.

Third, we propose to remove the words “including all costs” from proposed paragraph (j)(1)(iii). In determining the cost-effectiveness of relocation, it is not necessary to include every cost and it is unlikely that all costs will be known at the time the cost-effectiveness determination is made. FEMA considers the larger context of the requested relocation when determining cost-effectiveness, such as whether the applicant provides an essential community service that should be relocated. The regulatory text should not suggest the burden for establishing cost-effectiveness is higher than it is. This proposed revision is consistent with FEMA's current guidance on relocation.

See

PAPPG at 160 (“If the cost to relocate the facility is less than the eligible cost to replace the facility at its original location . . . then the project

is cost effective. In instances where the cost of relocation exceeds the cost to replace the facility at its original location FEMA may . . . determine cost effectiveness.”).

In proposed paragraph (j)(2), we propose to clarify that when relocation is required by the Regional Administrator, it is “the construction of” ancillary facilities such as roads and utilities that is eligible.

Existing paragraph (g)(3) states that, when relocation is required by the Regional Administrator, no future funding for repair or replacement of a facility at the original site will be approved. We propose to clarify that the funding referred to is FEMA funding. We also propose to replace the reference to 44 CFR part 9 with a reference to 44 CFR part 80. Part 80, added to the CFR in 2007,

consolidated FEMA's procedures and requirements for the acquisition of property for open space and expanded the scope of the prior regulations to address the use of all types of mitigation funds.

See

Flood Mitigation Grants and Hazard Mitigation Planning, 72 FR 61720 (Oct. 31, 2007) (interim final rule);