[Federal Register Volume 63, Number 24 (Thursday, February 5, 1998)]
[Rules and Regulations]
[Pages 5895-5897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2711]
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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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