[Federal Register Volume 64, Number 196 (Tuesday, October 12, 1999)]
[Rules and Regulations]
[Pages 55158-55161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26352]
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FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 206
RIN 3067-AC89
Disaster Assistance; Redesign of Public Assistance Program
Administration
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
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SUMMARY: We (FEMA) have redesigned the Public Assistance Program to
provide money to applicants more quickly and to make the application
process simpler than before. Specific changes to regulations rename
documents, define terms, adjust responsibilities, and edit the rule in
a way that we hope makes the rule easier to read and understand. This
rule reflects changes that we need to put the new Public Assistance
Program into effect.
EFFECTIVE DATE: This rule is effective on November 12, 1999.
FOR FURTHER INFORMATION CONTACT: James D. Duffer, Federal Emergency
Management Agency, room 713, 500 C Street SW., Washington DC 20472,
(202) 646-3532, or (email) james.duffer@fema.gov.
SUPPLEMENTARY INFORMATION: On November 20, 1998, we published an
interim final rule on the redesigned Public Assistance Disaster Grant
Program (Project Administration) in the Federal Register at 63 FR
64423. We invited comments for 45 days ending on January 4, 1999. We
received eight sets of comments: Five from States; one from an
organization; and, one from an individual. Comments varied widely. One
commenter objected to changing the regulations; some thought that
certain amended language required more clarification; some proposed
additions to the amendatory language; and, some supported the rule as
written.
We have carefully considered the comments and performed clarifying
amendments to Sec. 206.201, Sec. 206.202, Sec. 206.204, Sec. 206.205,
and Sec. 206.208 that are technical in nature and do not require
republication of the rule for comment. Specifically, within
Sec. 206.201 we added that a scope of work and cost estimate for a
project are documented on a Project Worksheet. We amended Sec. 206.202
to explain the State's responsibility better and to make the rule
easier to understand in this regard. We replaced the term ``Damage
Survey Report'' with ``Project Worksheet'' at Sec. 206.204. In
Sec. 206.205 we amended the section to provide that final payment of
the Federal share is made to the Grantee upon approval of the Project
Worksheet, rather than the project. And in Sec. 206.208 we eliminated
the damage survey report requirement for the implementation of direct
Federal assistance and replaced it with a requirement for a mission
assignment letter to the appropriate federal agency. Following is a
summary of the comments and responses.
Several States commented that the proposed amendments to the
governing regulations were generally acceptable. Some suggested that
additional changes to the rule were necessary to explain the meaning of
the redesigned process better for improving the delivery of the Public
Assistance Program. We believe that the comments have merit and where
terminologies are not consistent we are making additional changes to
define terms better and to adjust responsibilities as follows:
Several commenters noted that we might have omitted State
participation in the preparation of Project Worksheets from the
responsibilities of the Grantee, which could result in
misinterpretations with other sections of the rule. By way of
explanation, we encourage applicants to formulate their own small
projects and to prepare Project Worksheets. For those unable to do so,
we will prepare Project Worksheets for small projects. We also prepare
Project Worksheets for all large projects. The State is responsible for
providing assistance to the applicant and FEMA, as appropriate, for the
purposes of identifying and validating small and large projects. We
edited Sec. 206.202(b)(2), Sec. 206.202(d)(1)(i) and
Sec. 206.228(a)(2)(i) to explain the State's responsibility better and
make the rule easier to understand in this regard.
One commenter observed that Sec. 206.202(d)(1)(ii) of the
interim rule mistakenly omitted the word ``substantive''. We corrected
this section to include the word ``substantive'' in the text of the
rule. Our intent (as we noted under What Changes Are We Making to the
Rule?) is that the first substantive meeting (known as the Kickoff
Meeting) is between the applicant, the Public Assistance Coordinator
(PAC) and the Liaison (a State supplied position) when possible. The
PAC contacts the subgrantee to arrange the Kickoff Meeting. At this
meeting a subgrantee's damages will be discussed, needs assessed, and a
plan of action put in place. The PAC will go over what we expect of the
subgrantee and will provide detailed instructions on what to do and how
to do it. The State Liaison will discuss State requirements for
administering the programmatic and
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grant management requirements of the Public Assistance Program. This
meeting is also the place to bring any questions or concerns that the
subgrantee may have about how the public assistance process works.
One commenter said that a change should be made to the
Payment of Claims for small projects. Under the previous process for
small projects, final payment of the Federal share was made to the
Grantee upon project approval (each project was separately identified
on a Damage Survey Report). The comment has merit because the
redesigned process approves all small projects listed on a Project
Worksheet as a single grant. We edited Sec. 206.205(a) to say that we
make final payment of the Federal share of these projects to the
Grantee when we approve the Project Worksheet.
Another commenter proposed a change to eliminate the term
DSR under Sec. 206.208(c)(1), Direct Federal Assistance. In the past,
the Regional Director had to prepare a damage survey report
establishing the scope and estimated cost of eligible work before
execution of the work by another Federal agency that had the mission
assignment to provide direct Federal assistance. This requirement was a
pre-Federal Response Plan activity. We edited this section to eliminate
the DSR requirement. However, the mission assignment letter to the
agency providing direct Federal assistance will define the eligible
scope of work, the estimated cost of the eligible work and the billing
frequency.
Another commenter observed for Sec. 206.204(e) that we
needed to eliminate the term DSR (Damage Survey Report) and replace it
with PW (Project Worksheet). We made that change.
We also received comments that were unrelated to matters of
terminology or consistency in the interim rule. Following is our
summary of and response to these comments:
A commenter observed that the grantee and subgrantee must
be trained before a disaster and that we should provide adequate
funding for training and publications to implement the Public
Assistance Program properly. In response, our priority is to train FEMA
staff to better deliver the redesigned Public Assistance Program.
Although we do not propose a formal training program for States and
applicants, we are providing educational and training materials in a
variety of forms and delivery methods to educate States and applicants.
To prepare States to train applicants we have provided limited training
to the States (e.g. train-the-trainer classes). We are relying on
States and locals to avail themselves of the training materials mounted
on our web site that includes clearly marked areas for Public
Assistance Program information and publications.
One commenter expressed that there could be confusion with
the terms ``we'' and ``you'' as used throughout the text of the
proposed language. We have considered the possibility and agree. To
reduce the potential for confusion, terminology changes throughout text
of the proposed language have been made to reflect the term's
``Grantee'' and ``subgrantee'' as appropriate.
Another commenter noted that allowable administrative
costs for subgrantees are insufficient to complete program
responsibilities and said the allowance should be increased. The
statutory allowance to assist in the cost of requesting, obtaining and
administering Federal assistance is outside the scope of the changes to
the regulations.
A commenter asserted that FEMA should retain the
requirement to explain in writing to a State Program Administrator any
delays beyond 45 days in the obligation of Federal funds. We appreciate
the comment but we do not take that view. We keep our obligation to
explain delays but remove the requirement for written explanation. The
program relies greatly on open communication, which we effect in a
variety of ways. For instance, soon after the declaration, FEMA and
State officials will meet to develop a public assistance recovery
strategy, which will address FEMA and State staffing plans. As other
examples, State staff assigned to the Resource Pool may assist in
recovery efforts by providing technical assistance to applicants
requesting assistance with their small project formulation activities,
by validating an applicant's small projects, by assisting in the
formulation of large projects, or by reviewing an applicant's case
management file. Through the Federal, State and local partnership all
participants will know why delays greater than 45 days in obligating
Federal funds may occur both through open communication and through the
review of an applicant's case management file. We believe that it would
be redundant to duplicate this information in writing separately, when
the same information is available from either the Public Assistance
Coordinator (PAC), the State Liaison, or an applicant's case management
file.
Another commenter observed that we had deleted
Sec. 206.202(f). We appreciate the comment and note that the final rule
retains that section in its original form.
A commenter stated that the redesigned Public Assistance
Program should not be implemented until we closed out one of the
``pilot'' disasters and audited the program result. We appreciate the
comment but we do not take that view. State and local officials who
participated in the pilot enthusiastically endorsed the redesigned
process. Changes to the regulations incorporate the lessons that we
learned from the pilot. The evaluation of program performance is an
essential part of the redesigned program. An overall survey program
began in late 1997 specifically for this purpose. We conducted an
initial survey, Public Assistance Program Evaluation and Customer
Satisfaction Baseline Survey, from December 1997 through February 1998
and we published results of the survey in April 1998. The Baseline
Survey revealed that, while a majority of respondents were satisfied
with the overall Public Assistance (PA) Program and its major
components, customer satisfaction levels were below our performance
expectations. In response, our headquarters and regional staffs
designed performance standards and targets for the PA Program to make
the Program a more customer-responsive and performance-based operation.
We published the standards in June 1998 in Public Assistance Program
Performance Standards. We are now conducting a series of Post-Disaster
Surveys to evaluate the effectiveness of new processes for the delivery
of financial assistance and services to customers.
Another commenter observed that Sec. 206.228(a)(2)(i)(A-D)
had been left out of the November 20, 1998 Federal Register notice. We
appreciate the comment and when we found the error we published a
correction in the Federal Register, 64 FR 41827, August 2, 1999, to
ensure that we retain the subparagraphs. They are in the final rule.
A commenter expressed the desire to have Federal Register
notices appear on the FEMA Website. We believe the comment has merit
and have asked our Office of the General Counsel to post all FEMA-
generated Federal Register publications on the FEMA Website.
National Environmental Policy Act
Our regulations categorically exclude this rule from the
preparation of environmental impact statements and environmental
assessments as an administrative action in support of normal day-to-day
grant activities. We have not prepared an environmental assessment or
an environmental impact statement.
[[Page 55160]]
Executive Order 12866, Regulatory Planning and Review
We do not expect this rule (1) to affect adversely the availability
of disaster assistance funding to small entities, (2) to have
significant secondary or incidental effects on a substantial number of
small entities, or (3) to create any additional burden on small
entities.
As Director I certify that this rule is not a significant
regulatory action within the meaning of section 2(f) of E.O. 12866 of
September 30, 1993, 58 FR 51735, and that it attempts to adhere to the
regulatory principles set forth in E.O. 12866. The Office of Management
and Budget has not reviewed this rule under E.O. 12866.
Paperwork Reduction Act
This rule does not contain a collection of information and
therefore is not subject to the provisions of the Paperwork Reduction
Act of 1995.
Executive Order 12612, Federalism
In publishing this rule, we 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 under 44 CFR Part 13, Uniform
Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments, remain the same. We have not prepared a
Federalism assessment.
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
We have submitted this final rule to the Congress and to the
General Accounting Office under the Congressional Review of Agency
Rulemaking Act, Pub. L. 104-121. The rule is not a ``major rule''
within the meaning of that Act. It is an administrative action in
support of normal day-to-day activities. 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, and (2) from the Paperwork Reduction Act.
The 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, the interim rule published at 63 FR 64425, Nov. 20,
1998, amending 44 CFR part 206 is adopted as final with the following
changes:
PART 206--DISASTER ASSISTANCE
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. Revise Sec. 206.200(b) to read as follows:
Sec. 206.200 General.
* * * * *
(b) What policies apply to FEMA public assistance grants? (1) The
Stafford Act requires that we deliver eligible assistance as quickly
and efficiently as possible consistent with Federal laws and
regulations. We expect the Grantee and the subgrantee to adhere to
Stafford Act requirements and to these regulations when administering
our public assistance grants.
(2) The regulations entitled ``Uniform Requirements for Grants and
Cooperative Agreements to State and Local Governments,'' published at
44 CFR part 13, place requirements on the State in its role as Grantee
and gives the Grantee discretion to administer federal programs under
their own procedures. We expect the Grantee to:
(i) Inform subgrantees about the status of their applications,
including notifications of our approvals of Project Worksheets and our
estimates of when we will make payments;
(ii) Pay the full amounts due to subgrantees as soon as practicable
after we approve payment, including the State contribution required in
the FEMA-State Agreement; and
(iii) Pay the State contribution consistent with State laws.
3. Amend section Sec. 206.201 by revising the heading and the
definitions of project and project approval in paragraphs (i) and (j)
to read as follows:
Sec. 206.201 Definitions used in this subpart.
* * * * *
(i) A project is a logical grouping of work required as a result of
the declared major disaster or emergency. The scope of work and cost
estimate for a project are documented on a Project Worksheet (FEMA Form
90-91).
(1) We must approve a scope of eligible work and an itemized cost
estimate before funding a project.
(2) A project may include eligible work at several sites.
(j) Project approval means the process in which the Regional
Director, or designee, reviews and signs an approval of work and costs
on a Project Worksheet or on a batch of Project Worksheets. Such
approval is also an obligation of funds to the Grantee.
* * * * *
4. Revise Sec. 206.202 to read as follows:
Sec. 206.202 Application procedures.
(a) General. This section describes the policies and procedures
that we use to process public assistance grants to States. Under this
section the State is the Grantee. As Grantee you are responsible for
processing subgrants to applicants under 44 CFR parts 13, 14, and 206,
and your own policies and procedures.
(b) Grantee. You are the grant administrator for all funds provided
under the Public Assistance grant program. Your responsibilities under
this section include:
(1) Providing technical advice and assistance to eligible
subgrantees;
(2) Providing State support for project identification activities
to include small and large project formulation and the validation of
small projects;
(3) Ensuring that all potential applicants are aware of available
public assistance; and
(4) Submitting documents necessary for the award of grants.
(c) Request for Public Assistance (Request). The Grantee must send
a completed Request (FEMA Form 90-49) to the Regional Director for each
applicant who requests public assistance. You must send Requests to the
Regional Director within 30 days after designation of the area where
the damage occurred.
(d) Project Worksheets. (1) An applicant's authorized local
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representative is responsible for representing the applicant and for
ensuring that the applicant has identified all eligible work and
submitted all costs for disaster-related damages for funding.
(i) We or the applicant, assisted by the State as appropriate, will
prepare a Project Worksheet (FEMA Form 90-91) for each project. The
Project Worksheet must identify the eligible scope of work and must
include a quantitative estimate for the eligible work.
(ii) The applicant will have 60 days following its first
substantive meeting with us to identify and to report damage to us.
(2) When the estimated cost of work on a project is less than
$1,000, that work is not eligible and we will not approve a Project
Worksheet for the project. Periodically we will review this minimum
approval amount for a Project Worksheet and, if needed, will adjust the
amount by regulation.
(e) Grant approval. (1) Before we obligate any funds to the State,
the Grantee must complete and send to the Regional Director a Standard
Form (SF) 424, Application for Federal Assistance, and a SF 424D,
Assurances for Construction Programs. After we receive the SF 424 and
SF 424D, the Regional Director will obligate funds to the Grantee based
on the approved Project Worksheets. The Grantee will then approve
subgrants based on the Project Worksheets approved for each applicant.
(2) When the applicant submits the Project Worksheets, we will have
45 days to obligate Federal funds. If we have a delay beyond 45 days we
will explain the delay to the Grantee.
(f) Exceptions. The following are exceptions to the procedures and
time limitations outlined in paragraphs (c), (d), and (e) of this
section.
(1) Grant applications. An Indian tribe or authorized tribal
organization may submit a SF 424 directly to the RD when the Act
authorizes assistance and a State is legally unable to assume the
responsibilities that these regulations prescribe.
(2) Time limitations. The RD may extend the time limitations shown
in paragraphs (c) and (d) of this section when the Grantees justifies
and makes a request in writing. The justification must be based on
extenuating circustances beyond the grantee's or subgrantee's control.
5. Amend Sec. 206.204 by revising paragraph (e) to read as follows:
Sec. 206.204 Project performance.
* * * * *
(e) Cost Overruns. (1) During the execution of approved work a
subgrantee may find that the actual project costs exceed the approved
Project Worksheet estimates. Such cost overruns normally fall into the
following three categories:
(i) Variations in unit prices;
(ii) Change in the scope of eligible work; or
(iii) Delays in timely starts or completion of eligible work.
(2) The subgrantee must evaluate each cost overrun and, when
justified, submit a request for additional funding through the Grantee
to the RD for a final determination. All requests for the RD's approval
will contain sufficient documentation to support the eligibility of all
claimed work and costs. The Grantee must include a written
recommendation when forwarding the request. The RD will notify the
Grantee in writing of the final determination. FEMA will not normally
review an overrun for an individual small project. The normal procedure
for small projects will be that when a subgrantee discovers a
significant overrun related to the total final cost for all small
projects, the subgrantee may submit an appeal for additional funding in
accordance with Sec. 206.206, within 60 days following the completion
of all its small projects.
* * * * *
6. Amend Sec. 206.205 by revising paragraph (a) to read as follows:
Sec. 206.205 Payment of Claims.
(a) Small Projects. Final payment of the Federal share of these
projects will be made to the Grantee upon approval of the Project
Worksheet. The Grantee will make payment of the Federal share to the
subgrantee as soon as practicable after Federal approval of funding.
Before the closeout of the disaster contract, the Grantee must certify
that all such projects were completed in accordance with FEMA approvals
and that the State contribution to the non-Federal share, as specified
in the FEMA-State Agreement, has been paid to each subgrantee. Such
certification is not required to specify the amount spent by a
subgrantee on small projects. The Federal payment for small projects
shall not be reduced if all of the approved funds are not spent to
complete a project. However, failure to complete a project may require
that the Federal payment be refunded.
* * * * *
7. Amend Sec. 206.208 by revising paragraph (c)(1) to read as
follows:
Sec. 206.208 Direct Federal Assistance.
* * * * *
(c) Implementation. (1) If the RD approves the request, a mission
assignment will be issued to the appropriate Federal agency. The
mission assignment letter to the agency will define the scope of
eligible work, the estimated cost of the eligible work and the billing
period frequency. The Federal agency must not exceed the approved
funding limit without the authorization of the RD.
* * * * *
8. Amend Sec. 206.228 by revising paragraph (a)(2)(i) to read as
follows:
Sec. 206.228 Allowable costs.
* * * * *
(a) * * *
(1) * * *
(2) Statutory Administrative Costs--(i) Grantee. Under section
406(f)(2) of the Stafford Act, we will pay you, the State, an allowance
to cover the extraordinary costs that you incur to formulate Project
Worksheets for small and large projects, to validate small projects, to
prepare final inspection reports, project applications, final audits,
and to make related field inspections by State employees. Eligible
costs include overtime pay and per diem and travel expenses, but do not
include regular time for your State employees. The allowance to the
State will be based on the following percentages of the total amount of
Federal assistance that we provide for all subgrantees in the State
under sections 403, 406, 407, 502, and 503 of the Act:
(A) For the first $100,000 of total assistance provided (Federal
share), three percent of such assistance.
(B) For the next $900,000, two percent of such assistance.
(C) For the next $4,000,000, one percent of such assistance.
(D) For assistance over $5,000,000, one-half percent of such
assistance.
* * * * *
Dated: October 1, 1999.
James L. Witt,
Director.
[FR Doc. 99-26352 Filed 10-8-99; 8:45 am]
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