[Federal Register Volume 66, Number 123 (Tuesday, June 26, 2001)]
[Rules and Regulations]
[Pages 33900-33902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15924]


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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 206

RIN 3067-AD08


Disaster Assistance; Debris Removal

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Final rule.

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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, (202) 646-4240, or (email) [email protected].

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).

[[Page 33901]]

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 Sec. 206.224(a) to read as follows:


Sec. 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,

[[Page 33902]]

Response and Recovery extends this period.
* * * * *

    Dated: June 19, 2001.
Lacy Suiter,
Assistant Director, Readiness, Response and Recovery Directorate.
[FR Doc. 01-15924 Filed 6-25-01; 8:45 am]
BILLING CODE 6718-02-P