[Federal Register Volume 61, Number 208 (Friday, October 25, 1996)] [Proposed Rules] [Pages 55262-55263] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-27430] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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] BILLING CODE 6718-02-P