[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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