Disaster Assistance; Restoration of Damaged Facilities

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 206

RIN 3067-AC60

Disaster Assistance; Restoration of Damaged Facilities

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Proposed rule.

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SUMMARY: This proposed rule would require that eligible costs

associated with State and local repair or replacement standards

(building codes), which change the predisaster construction of a

facility, be limited to the standards that are in place at the time of

the disaster declaration date. The standards must be in writing and

formally adopted by the applicant or State on or before the disaster

declaration date. The proposed rule would become effective for

disasters declared one (1) year or more after the publication of the

final rule.

DATES: We invite comments on this proposed rule and will accept

comments until December 24, 1996.

ADDRESSES: Please send written comments to the Rules Docket Clerk,

Office of the General Counsel, Federal Emergency Management Agency, 500

C Street SW., Washington, DC 20472, (facsimile) (202) 646-4536.

[[Page 55263]]

FOR FURTHER INFORMATION CONTACT: Gregory Ormsby, Engineer, Federal

Emergency Management Agency, room 713, 500 C Street SW., Washington, DC

20472, (202) 646-2726.

SUPPLEMENTARY INFORMATION: The Robert T. Stafford Disaster Relief and

Emergency Assistance Act (Stafford Act), as amended, 42 U.S.C. 5121 et

seq., authorizes the President to provide supplemental assistance to

State and local governments and certain private nonprofit organizations

after the President declares a major disaster. Section 406 of the

Stafford Act, ``Repair, Restoration, and Replacement of Damaged

Facilities,'' authorizes the President to fund the repair, restoration,

reconstruction, or replacement of a damaged public facility or private

nonprofit facility ``. . . on the basis of the design of the facility

as it existed immediately prior to the major disaster and in conformity

with current applicable codes, specifications, and standards.'' Under

authority delegated by the President to FEMA, we have interpreted the

phrase, ``. . . in conformity with current codes, specifications, and

standards . . .'' to mean those codes, specifications, and standards

that are officially adopted and implemented before project approval,

that is, the date FEMA approves the repair estimate for a specific

facility. This interpretation is codified at 44 CFR 206.226(b)(3).

44 CFR 206.226(b)(3) allows applicants to incorporate new codes and

standards in the eligible repair of damaged facilities as well as the

construction of new facilities. Damage mitigation achieved by the new

codes would lessen the impact of future disasters and reduce future

Federal disaster expenditures. This change was made from pre-Stafford

Act regulations to encourage adoption of codes at a time when there is

a heightened awareness of the need for improved codes.

Recently, FEMA has experienced several unintended consequences of

this interpretation of the law, which have had negative impacts on the

program. We have experienced protracted delays in repairing eligible

projects as applicants debate the adoption of codes and standards that

will affect eligible damaged facilities and the amount of Federal

assistance they will receive. After adopting new codes and standards,

there have been protracted discussions with FEMA regarding the

applicability of the new codes and standards to the damaged facilities.

These actions have resulted in extensive delays in repairing damaged

facilities and subsequently in closing out disasters.

After review of the statute and a General Accounting Office (GAO)

report entitled ``Disaster Assistance: Improvements Needed in

Determining Eligibility for Public Assistance'' (GAO/RCED-96-113),

which commented on this provision in the regulations, FEMA determined

that its current interpretation is not fully consistent with

Congressional intent. FEMA believes that the word ``current'' means at

the time of the disaster and not at the time of project approval. This

is consistent with Congressional intent.

Accordingly, FEMA proposes to revise 44 CFR 206.226 (b)(3) to

reflect this revised interpretation. The proposed rule would become

effective for disasters declared one year or more after publication of

the final rule. During this period, applicants will be encouraged to

adopt improved building codes before their next disaster. In this way,

all those structures built between the adoption of a code and the next

disaster will benefit from better construction and have less damage.

All other provisions of 44 CFR 206.226(b) would remain unchanged.

National Environmental Policy Act. This proposed rule would be

categorically excluded from the preparation of environmental impact

statements and environmental assessments as an administrative action in

support of normal day-to-day grant activities. No environmental

assessment or environmental impact statement has been prepared.

Regulatory Flexibility Act. A regulatory impact analysis is in

process to determine the effect of this rule on small communities.

Paperwork Reduction Act. This rule does not involve any collection

of information for the purposes of the Paperwork Reduction Act.

Executive Order 12612, Federalism. In promulgating this rule, FEMA

has considered the President's Executive Order 12612 on Federalism.

This rule makes no changes in the division of governmental

responsibilities between the Federal government and the States. Grant

administration procedures in accordance with 44 CFR Part 13, Uniform

Administrative Requirements for Grants and Cooperative Agreements to

State and Local Governments, remain the same. No Federalism assessment

has been prepared.

Executive Order 12778, Civil Justice Reform. This rule meets the

applicable standards of section 2(b)(2) of Executive Order 12778, Civil

Justice Reform, dated October 25, 1991, 3 CFR, 1991 Comp., p. 359.

List of Subjects in 44 CFR Part 206

Disaster assistance, Public assistance.

Accordingly, 44 CFR part 206 is proposed to be amended as follows:

1. The authority citation for part 206 continues to read as

follows:

Authority: The Robert T. Stafford Disaster Relief and Emergency

Assistance Act, 42 U.S.C. 5121 et seq.; Reorganization Plan No. 3 of

1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12148, 44 FR

43239, 3 CFR, 1979 Comp., p. 412; and E.O. 12673, 54 FR 12571, 3

CFR, 1989 Comp., p. 214.

2. Section 206.226 (b)(3) is proposed to be revised to read as

follows:

Sec. 206.226 Restoration of damaged facilities.

* * * * *

(b)(1) * * *

(2) * * *

(3) Be in writing and formally adopted by the applicant or State

prior to the disaster declaration date or be a legal Federal

requirement applicable to the type of restoration;

* * * * *

Dated: October 16, 1996.

James L. Witt,

Director.

[FR Doc. 96-27430 Filed 10-24-96; 8:45 am]

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