01-15924. Disaster Assistance; Debris Removal

AGENCY:

Federal Emergency Management Agency (FEMA).

ACTION:

Final rule.

SUMMARY:

We (FEMA) are adding to the conditions under which we may determine that debris removal is in the public interest following a declared disaster. We may provide funding for the removal of debris and wreckage from publicly and privately owned lands and waters when communities convert property acquired through a FEMA program for hazard mitigation purposes to uses compatible with open space, recreational, or wetlands management practices.

EFFECTIVE DATE:

This rule is effective July 26, 2001.

FOR FURTHER INFORMATION CONTACT:

Melissa M. Howard, Ph.D., Federal Emergency Management Agency, room 713, 500 C Street SW., Washington DC 20472, [phone], or (email) [e-mail].

SUPPLEMENTARY INFORMATION:

We consider that it is in the public interest to remove substantially damaged structures and related slabs, driveways, fencing, garages, sheds, and similar appurtenances from properties that are part of a FEMA-funded hazard mitigation buyout and relocation project. On May 16, 2000, we published a proposed rule on debris removal in the Federal Register, 65 FR 31129, and invited comments for 60 days ending on July 15, 2000. We received comments from three sources representing a federal agency, a State government, and a national association.

The proposed rule stated that we would consider in the public interest the removal of substantially damaged structures that a community acquired through a FEMA-funded hazard mitigation project. The removal of such structures would help to mitigate the risk to life and property by converting the property to uses that are compatible with open space, recreational and wetlands management practices. We believe that Federal assistance used in this way supports the effort to break the cycle of repetitive damage and repair; such removal is less costly to taxpayers than paying for repetitive damage and repair. Mitigation through buyout and relocation also substantially reduces the risk of future infrastructure damage and personal hardship, loss and suffering.

Comment. One commenter asked whether it is in the public interest to remove substantially damaged structures and related appurtenances during a partial buyout. In these cases, the commenter said, a FEMA-funded mitigation program may acquire one property, but not an adjacent property.

Response. We believe that debris removal from the acquired property is in the public interest because that property will not be built upon in the future. This type of removal contributes to the goal of reducing long-term vulnerability. In the case of an adjacent property, if that property is not substantially damaged, it could be removed under section 404 of the Stafford Act, but it could not be removed under section 407 since it would not be debris or wreckage.

Comment. Another commenter stated that debris and wreckage removal was just one element of demolition and suggested that we also fund the razing of these structures.

Response. We intend to remove only those structures that may be classed as debris and wreckage. Razing the structure in such cases should not be necessary. However, if a structure and its appurtenances meet the criteria in this rule, that is, that the property is substantially damaged and acquired through a FEMA-funded hazard mitigation program, we will fund its removal and will include razing and disposal as applicable.

Comment. A related comment asked that we fund the removal of all damaged structures acquired through a FEMA-funded mitigation program, not just those that are substantially damaged. Section 407 of the Stafford Act allows for the removal of debris and wreckage.

Response. We do not consider structures to be debris and wreckage if they are not substantially damaged. If we were to fund their removal, we would have to do so under the authority of section 404 of the Stafford Act. In order to lessen the administrative burden of funding on a structure-by-structure basis in areas where some structures are substantially damaged and others are not, we will fund debris and wreckage removal on a prorated basis. For example, if 60 percent of structures are substantially damaged, we will reimburse 60 percent of the costs for removing all structures acquired through a FEMA-funded mitigation program.

Comment. A final comment raised the issue of timelines for completion of debris removal. The commenter thought that assisting in the buyout process would prevent the Public Assistance Program from reaching disaster closeout objectives. The commenter suggested that we limit funding to 12 months after the declaration.

Response. We understand the point of the commenter and agree that the use of the authority must be time-limited. Because we find a one-year deadline to be impractical, we have established a two-year deadline, which we do find reasonable. Therefore, we will allow two years from the declaration date to obligate funds and complete the removal of substantially damaged structures.

National Environmental Policy Act

This rule is excluded from the preparation of an environmental assessment or environmental impact statement under 44 CFR 10.8(d)(2)(ii), where the rule is related to actions that qualify for categorical exclusion under 44 CFR 10.8(d)(2)(vii).

Executive Order 12866, Regulatory Planning and Review

We have prepared and reviewed this final rule under the provisions of E.O. 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This final rule adds a category of property eligible to receive public assistance following a declared disaster, and will benefit those small entities that qualify for this assistance. We know of no conditions that would qualify the rule as a “significant regulatory action” within the definition of section 3(f) of the Executive Order. To the extent possible this rule adheres to the principles of regulation in Executive Order 12866. The Office of Management and Budget has not reviewed this rule under the provisions of Executive Order 12866.

Paperwork Reduction Act

This rule does not require a collection of information and therefore is not subject to the provisions of the Paperwork Reduction Act of 1995.

Regulatory Flexibility Act, 5 U.S.C. 601

Under the Regulatory Flexibility Act agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). When an agency is required by 5 U.S.C. 553 to publish a notice of proposed rulemaking, a regulatory flexibility analysis is required for both the proposed rule and the final rule if the rulemaking could “have a significant economic impact on a substantial number of small entities.” The Act also provides that if a regulatory flexibility analysis is not required, the agency must certify in the rulemaking document that the rulemaking will not “have a significant economic impact on a substantial number of small entities.”

For the reasons that follow I certify that a regulatory flexibility analysis is not required for this rule because it would not have a significant economic impact on a substantial number of small entities. This rule adds a new condition under which we may determine debris removal is in the public interest following a declared disaster. We expect the rule will benefit those small entities that qualify for this assistance and will enhance the ability of local officials to make sound floodplain management decisions more readily than under the current rule.

Executive Order 13132, Federalism

Executive Order 13132, Federalism, dated August 4, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

We have reviewed this rule under Executive Order 13132 and have concluded that the rule does not have federalism implications as defined by the Executive Order. As noted under Regulatory Planning and Review, this rule adds a new condition under which we may determine debris removal is in the public interest following a declared disaster. We know of no substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government that would result from this rule.

The Office of Management and Budget has reviewed this rule under the provisions of Executive Order 13132.

Congressional Review of Agency Rulemaking

We have sent this 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. By adding a new condition under which we may determine debris removal is in the public interest following a declared disaster it will not result in an annual effect on the economy of $100,000,000 or more. We do not expect that it will result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor do we expect that it will 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.

List of Subjects in 44 CFR Part 206

• Disaster assistance

Accordingly, amend 44 CFR part 206 as follows:

PART 206—FEDERAL DISASTER ASSISTANCE FOR DISASTERS DECLARED ON OR AFTER NOVEMBER 23, 1988

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

Authority: 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 § 206.224(a) to read as follows:

§ 206.224

Debris removal.

(a) Public interest. Upon determination that debris removal is in the public interest, the Regional Director may provide assistance for the removal of debris and wreckage from publicly and privately owned lands and waters. Such removal is in the public interest when it is necessary to:

(1) Eliminate immediate threats to life, public health, and safety; or

(2) Eliminate immediate threats of significant damage to improved public or private property; or

(3) Ensure economic recovery of the affected community to the benefit of the community-at-large; or

(4) Mitigate the risk to life and property by removing substantially damaged structures and associated appurtenances as needed to convert property acquired through a FEMA hazard mitigation program to uses compatible with open space, recreation, or wetlands management practices. Such removal must be completed within two years of the declaration date, unless the Associate Director for Readiness, Response and Recovery extends this period.

* * * * *

Dated: June 19, 2001.

Lacy Suiter,

Assistant Director, Readiness, Response and Recovery Directorate.