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: Final rule.

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SUMMARY: The Federal Emergency Management Agency (FEMA) is amending the

basis for determining the eligibility of disaster costs associated with

State and local repair or replacement standards adopted prior to

restoration project approval that change the predisaster construction

of a damaged facility. The rule requires that eligible costs associated

with State and local repair or replacement standards (building codes,

specifications, or standards required for the construction of

facilities) be found reasonable and be limited to the standards that

are in writing and formally adopted by the State or local government on

or before the date of the disaster declaration. This rule staggers the

effective dates; the rule will be effective for local standards on

January 1, 1999, and for State standards on January 1, 2000.

DATES: This rule is effective March 9, 1998 and is applicable for local

governments on January 1, 1999 and for States on January 1, 2000.

FOR FURTHER INFORMATION CONTACT: Melissa M. Howard, Ph.D.,

Infrastructure Support Division, Federal Emergency Management Agency,

room 713, 500 C Street SW., Washington DC 20472 (202) 646-3243.

SUPPLEMENTARY INFORMATION: FEMA has determined that standards, as dealt

with in 44 CFR 206.226(b)(3), must be in effect at the time of the

disaster and not at the time of project approval. On October 25, 1996,

FEMA published a proposed rule in the Federal Register at 61 FR 55262

and invited comments for 60 days ending on December 24, 1996.

The regulation proposed that eligible costs associated with State

and local repair or replacement standards that change the pre-disaster

construction of a facility be limited to the standards that are in

place at the time of the disaster declaration date. The term

``standards''

[[Page 5896]]

is as defined in 44 CFR 206.221 and includes construction codes,

specifications, and standards. The phrase ``in place'' means that

standards must be in writing, formally adopted and implemented by the

State or local government on or before the date of the disaster

declaration. Comments were received from six (6) sources representing

State and local governments and a national association.

A frequent general comment was that as a consequence of any

disaster, State and local communities learn from the damages that

occurred to facilities and begin the process of updating applicable

standards. Based upon this conclusion, it was recommended in two

comments that FEMA allow applicants to upgrade codes and standards to a

set time limit after the declaration date. Three related comments were

made that eligibility should remain as stated in 44 CFR 206.226(b)(3).

FEMA agrees that post-disaster engineering research and analysis may

provide valuable results that may be beneficial to building standards

development. However, after thorough review of the statute and related

documentation, FEMA concludes that the suggested changes in the

comments are not warranted.

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, FEMA interprets the phrase, ``* * * in conformity

with current codes, specifications, and standards * * *'' to mean those

standards (i.e., codes, specifications, and standards required for the

construction of facilities) that are officially adopted and implemented

before the disaster declaration date, not the project approval date.

This interpretation also is consistent with earlier documentation.

Two comments were made that the proposed regulation was not

consistent with FEMA's National Mitigation Strategy. FEMA does not take

that view. FEMA encourages State and local governments to adopt and

enforce reasonable standards in an effort to mitigate future losses.

However, FEMA believes that the responsibility rests with State and

local governments to do so before a disaster occurs. As part of FEMA's

National Mitigation Strategy, FEMA believes that the success of the

strategy depends on individuals and government at all levels

acknowledging their vulnerability and accepting their responsibility

for reducing their exposure to risk from disasters. The adoption and

enforcement of reasonable standards benefit the local community by

mitigating potential damage to its infrastructure and, in turn,

reducing the loss of life and property from such events. To minimize

damages, standards need to be in effect and enforced at the time of the

disaster. The provision of a window for post-disaster enactment will

encourage delays in the implementation of safer building practices.

FEMA believes strongly that prudent action on the part of the State and

local governments will help to reduce the future need for Federal

disaster assistance and the administrative burden on all parties of

administering that assistance.

One comment concerned the interpretation of State and local

building standards that contain ``triggers'' designed to require

seismic upgrades for damaged structures. The comment was made in the

context that the proposed rule would not resolve the problem of the

delays resulting from disagreements over the reasonableness of the

standards. The comment highlights the practice of using the concept of

``triggers'' for upgrades in standards. The issue is two-fold--the

applicants'' inclusion of very low thresholds that warrant very large

repairs and reconstruction, and FEMA's authority to determine the

reasonableness of thresholds and standards. FEMA continues to maintain

its authority to accept only reasonable claims on recovery funds. The

language of the rule has been amended to include this clarification.

One comment was that the proposed rule required that the applicable

standard be in place ``prior'' to the disaster declaration date, not

``on or before'' that date as described in the Federal Register

SUPPLEMENTARY INFORMATION. The language of the regulation has been made

consistent.

The comment period provided the opportunity for the general public

and governmental entities to respond to the proposed rule. FEMA

believes this period was adequate and that no further consultation is

needed.

This rule staggers the effective dates for local and State

governments. The rule will be effective for local standards on January

1, 1999, and for State standards on January 1, 2000.The rationale for

staggered effective dates is to encourage local governments to act

promptly to amend their codes and standards, and also to provide ample

time for all States, including those that have biennial legislative

sessions, to amend applicable State codes and standards in order to be

eligible for reimbursement of costs associated with State and local

repair or replacement standards that change the pre-disaster

construction of a facility.

Until the respective effective dates, current Sec. 202.226(b)(3)

will continue to apply, that is: ``(3) Be in writing and formally

adopted by the applicant prior to project approval or be a legal

Federal or State requirement applicable to the type of restoration.''

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

The Director certifies that this rule is not a major rule under

Executive Order 12291, and will not have a significant impact on a

substantial number of small entities within the meaning of the

Regulatory Flexibility Act, and is not expected (1) to adversely affect

the availability of disaster assistance funding to small entities, (2)

to have significant secondary or incidental effects on a substantial

number of small entities, nor (3) to create any additional burden on

small entities. Construction costs incurred as a result of more

stringent standards enacted by the State or local applicant after the

date of a disaster declaration will not be eligible for Federal public

assistance grant funding.

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.

[[Page 5897]]

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.

Congressional Review of Agency Rulemaking

This final rule has been submitted to the Congress and to the

General Accounting Office under the Congressional Review of Agency

Rulemaking Act, 5 U.S.C. 801 et seq. The rule is not a ``major rule''

within the meaning of that Act. It does not result in nor is it likely

to result in an annual effect on the economy of $100,000,000 or more;

it will not result in a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions; and it will not have ``significant

adverse effects'' on competition, employment, investment, productivity,

innovation, or on the ability of United States-based enterprises to

compete with foreign-based enterprises.

This final rule is exempt (1) from the requirements of the

Regulatory Flexibility Act, as certified previously, and (2) from the

Paperwork Reduction Act.

This rule is not an unfunded Federal mandate within the meaning of

the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4. It does not

meet the $100,000,000 threshold of that Act, and any enforceable duties

are imposed as a condition of Federal assistance or a duty arising from

participation in a voluntary Federal program.

List of Subjects in 44 CFR Part 206

Disaster assistance, Public assistance.

Accordingly, 44 CFR Part 206 is 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. 12127, 44 FR

19367, 3 CFR, 1979 Comp., p. 376; 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 revised to read as follows:

Sec. 206.226 Restoration of damaged facilities.

* * * * *

(b) * * *

(3)(i) Be found reasonable, in writing, and formally adopted and

implemented by the State or local government on or before the disaster

declaration date or be a legal Federal requirement applicable to the

type of restoration.

(ii) This paragraph (b) applies to local governments on January 1,

1999 and to States on January 1, 2000. Until the respective

applicability dates, the standards must be in writing and formally

adopted by the applicant prior to project approval or be a legal

Federal or State requirement applicable to the type of restoration.

* * * * *

Dated: January 29, 1998.

James L. Witt,

Director.

[FR Doc. 98-2711 Filed 2-4-98; 8:45 am]

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