Census Bureau
Economic Analysis Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
Land Management Bureau
Ocean Energy Management Bureau
Office of Natural Resources Revenue
Employee Benefits Security Administration
Mine Safety and Health Administration
Occupational Safety and Health Administration
Wage and Hour Division
National Endowment for the Arts
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Internal Revenue Service
United States Mint
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Office of Personnel Management (OPM).
Final rule.
This rule adjusts the level of civil monetary penalties contained in U.S. Office of Personnel Management regulations implementing the Program Fraud Civil Remedies Act of 1986, in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and Office of Management and Budget guidance.
Effective January 22, 2024.
Valerie Dew, Office of the General Counsel, Office of Personnel Management, 1900 E St. NW, Washington, DC 20415,
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (sec. 701 of Pub. L. 114-74, 28 U.S.C. 2461 note) (“the Act”). The Act required agencies to: (1) adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rule, and (2) make subsequent annual adjustments for inflation not later than January 15 of each year. The purpose of these adjustments is to maintain the deterrent effect of civil penalties. OPM has updated the agency's monetary penalties since the passage of the 2015 Act.
This rule takes into account adjustments for the year 2024 based on inflation since the last adjustment. These calculations were made based on guidance contained in Office of Management and Budget Memorandum M-24-07:
This final rule is being issued without prior public notice or opportunity for public comments and is effective upon publication in the
The Office of Management and Budget (OMB) issues guidance annually on calculating adjustments. Under this guidance, OPM has described how to identify applicable civil monetary penalties and calculated the annual adjustment. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute or fees for services, licenses, permits, or other regulatory review. The calculated catch-up adjustment is based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015 CPI-U.
Office of Management and Budget Memorandum M 24-07 stated that the cost-of-living multiplier for calculating adjustments in 2024 was 1.03241. This multiplier is to be applied to the current level of civil monetary penalties for agencies. When OPM's 2023 penalties of $13,508 are multiplied by 1.03241 and rounded to the nearest dollar, the resulting penalty amount is $13,946.
OPM has examined the impact of this rule as required by Executive Orders 12866, 13563, and 14094, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). OMB has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094.
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)), requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial
This rule does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and will not significantly or uniquely affect small governments.
This rule does not have takings implications.
This rule does not have federalism implications. The rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a) Does not unduly burden the judicial system.
(b) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(c) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
In accordance with Executive Order 13175, OPM has evaluated this rule and determined that it has no tribal implications.
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13.
Claims, Fraud, Penalties.
For the reasons set forth in the preamble, OPM amends 5 CFR part 185 as follows:
28 U.S.C. 2461 note; 31 U.S.C. 3801-3812.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for all Airbus SAS Model A330-200, A330-200 Freighter, A330-300, A330-800, A330-900, A340-500, and A340-600 series airplanes. This AD was prompted by a report of temporary loss of the flight director (FD) and autothrottle (A/THR) on an airplane dispatched under the provisions of a master minimum equipment list (MMEL) item for fuel quantity indication (FQI). This AD requires revising the operator's existing FAA-approved minimum equipment list (MEL), as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 6, 2024.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 6, 2024.
The FAA must receive comments on this AD by March 7, 2024.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For material incorporated by reference in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone +49 221 8999 000; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available at
Vladimir A. Ulyanov, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone 206-231-3229; email
The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Vladimir A. Ulyanov, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone 206-231-3229; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2023-0206, dated November 21, 2023 (EASA AD 2023-0206) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, -343, -841, and -941 airplanes; and Model A340-541, -542, -642, and -643 airplanes. Model A340-542 and -643 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability. The MCAI states temporary loss of the FD and A/THR occurred on an airplane dispatched under the provisions of MMEL item 28-07-02-05, “Inner Tank Fuel Quantity Indication on the Fuel SD page.” Subsequent investigation determined that this behavior is systematic, when an airplane is dispatched under certain MMEL FQI items, because the FQI unavailability invalidates the gross weight and the center-of-gravity computation at the fuel control and monitoring computer (FCMC)-level. To address this unsafe condition, Airbus issued an MMEL update prohibiting required navigation performance—authorization required (RNP-AR) operation for airplanes dispatched under certain MMEL FQI items. This condition, if not corrected, could affect the airplane's capability to follow the desired ground track and vertical path during certain takeoff and approach phases.
The FAA is issuing this AD to address the loss of the autopilot (AP), FD, and A/THR when those systems are required for RNP-AR takeoffs and landings, which could result in failure to maintain safe flight and landing. You may examine the MCAI in the AD docket at
EASA AD 2023-0206 specifies procedures for revising the operator's MEL by incorporating the information in MMEL items 28-07-02-05A, 28-07-02-06A, 28-07-02-07A, 28-07-02-08A, and 28-07-02-10A of Airbus A330/340 MMEL Major Event Revision, dated August 23, 2023, for airplanes that have implemented RNP-AR capability by embodying—
• Airbus modification 57729, 200624, 200628, 203441 or 203442 in production; or
• Airbus Service Bulletin A330-34-3262, A330-34-3308, A330-34-3345, A330-34-3378, or A330-34-3409 in service.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This AD requires accomplishing the actions specified in EASA AD 2023-0206 described previously, except for any differences identified as exceptions in the regulatory text of this AD.
EASA AD 2023-0206 requires operators to implement the instructions of the MMEL update, on the basis of which the applicable MEL of each affected airplane must be amended and thereafter “operate the aeroplane(s) accordingly.” However, this AD does not specifically require that action as it is already required by an FAA regulation. Section 121.628(a)(5) of 14 CFR requires airplanes to be operated under all applicable conditions and limitations contained in the operator's MEL. Therefore, including a requirement in this AD to operate the airplane according to the revised MEL would be redundant and unnecessary.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2023-0206 is incorporated by reference in this AD. This AD requires compliance with EASA AD 2023-0206 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0206 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0206. Service information required by EASA AD 2023-0206 for compliance will be available at
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because the loss of the AP, FD, and A/THR when those systems are required for RNP-AR takeoffs and landings could result in failure to maintain safe flight and landing. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).
In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.
The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 142 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective February 6, 2024.
None.
This AD applies to all Airbus SAS airplanes identified in paragraphs (c)(1) and (2) of this AD, certificated in any category.
(1) Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, -343, -841, and -941 airplanes.
(2) Model A340-541 and -642 airplanes.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by a report of temporary loss of the flight director (FD) and autothrottle (A/THR) on an airplane dispatched under the provisions of a master minimum equipment list (MMEL) item for fuel quantity indication. The FAA is issuing this AD to address the loss of the autopilot (AP), FD, and A/THR when those systems are required for navigation performance—authorization required (RNP-AR) takeoffs and landings. The unsafe condition, if not addressed, could result in failure to maintain safe flight and landing.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2023-0206, dated November 21, 2023 (EASA AD 2023-0206).
(1) Where EASA AD 2023-0206 refers to its effective date, this AD requires using the effective date of this AD.
(2) Where paragraph (1) of EASA AD 2023-0206 specifies to “implement the instructions of the MMEL update, on basis of which the applicable MEL of each affected aeroplane must be amended,” this AD requires replacing those words with “revise the operator's existing FAA-approved MEL by incorporating the information identified in “The MMEL update” as defined in EASA AD 2023-0206.”
(3) Where paragraph (1) of EASA AD 2023-0206 specifies “and, thereafter, operate the aeroplane(s) accordingly,” this AD does not require that action as it is already required by an existing FAA operating regulation (see 14 CFR 121.628(a)(5)).
(4) Where paragraph (2) of EASA AD 2023-0206 specifies “the instructions of the MMEL update are implemented for that aeroplane,” this AD requires replacing those words with “the operator's existing FAA-approved MEL is revised by incorporating the information identified in “The MMEL update” as defined in EASA AD 2023-0206.”
(5) Where paragraph (2) of EASA AD 2023-0206 specifies implementing the instructions of the MMEL update before next flight after modifying a Group 2 airplane into a Group 1 airplane, this AD requires accomplishing the MEL update within 30 days after the effective date of this AD, or before further flight after accomplishing the modification, whichever occurs later.
(6) This AD does not adopt the “Remarks” section of EASA AD 2023-0206.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Vladimir A. Ulyanov, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone 206-231-3229; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2023-0206, dated November 21, 2023.
(ii) [Reserved]
(3) For EASA AD 2023-0206, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone +49 221 8999 000; email
(4) You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Federal Aviation Administration (FAA), DOT.
Final rule, delay of effective date.
This action delays the effective date of a final rule published in the
The effective date of the final rule published on September 22, 2023 (88 FR 65311), with an effective date of November 30, 2023, delayed on October 19, 2023 (88 FR 71990) to March 21, 2024, is delayed to May 16, 2024. The Director of the Federal Register approved this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
Colby Abbott, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA published a final rule in the
The FAA expects the required flight inspection for Canadian RNAV Route T-675 will be completed by May 16, 2024; therefore, the rule amending VOR Federal Airway V-36 and establishing Canadian RNAV Route T-675 within US airspace is delayed to coincide with that date.
VOR Federal airways are published in paragraph 6010(a) and Canadian Area Navigation routes (T-routes) are published in paragraph 6013 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available online at
FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
Section 553(b)(3)(B) of Title 5, United States Code, (the Administrative Procedure Act) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. The FAA finds that prior notice and public comment to this final rule is unnecessary due to the brief length of the extension of the
Accordingly, pursuant to the authority delegated to me, the effective date of the final rule, Airspace Docket 23-AGL-17, published in the
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., P. 389.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting a final rule that published in the
Effective 0901 UTC, March 21, 2024. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.11, Airspace Designations and Reporting Points, and publication of conforming amendments.
FAA Order 7400.11H, and subsequent amendments, can be viewed online at
Keith Adams, Federal Aviation Administration, Western Service Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA 98198; telephone (206) 231-2428.
The FAA published a final rule in the
In FR Doc 2023-28228 at 88528, published in the
That airspace extending upward from 700 feet above the surface within a 4.2-mile radius of the airport, that airspace 2 miles each side of the airport's 001° bearing extending from the 4.2-mile radius to 8.9 miles north of the airport, and that airspace 1.1 miles each side of the airport's 180° bearing extending from the 4.2-mile radius to 7 miles south of the airport.
Issued in Des Moines, Washington.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes United States Area Navigation (RNAV) Route Q-476, and amends RNAV Route T-393 in support of the Next Generation Air Transportation System (NextGen) efforts to provide a modern RNAV route structure to improve the safety and efficiency of the National Airspace System (NAS).
Effective date 0901 UTC, March 21, 2024. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
A copy of the Notice of Proposed Rulemaking (NPRM), all comments received, this final rule, and all background material may be viewed online at
FAA Order JO 7400.11H, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Brian Vidis, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator.
The FAA published a NPRM for Docket No. FAA-2023-1417 in the
Subsequent to the publication of the NPRM, the FAA identified a typographical error in the title and the summary that incorrectly stated RNAV Route T-739 was to be amended. The correct RNAV Route amended is T-393.
Additionally, in the NPRM's description of RNAV Route T-393, the FAA incorrectly listed the GAILS, MA route point as a waypoint (WP). The route point is actually identified as a Fix in the National Airspace System Resource (NASR) database and charted as a Fix accordingly. This final rule corrects these errors.
United States Area Navigation routes are published in paragraph 2006 and 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the
FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
This action amends 14 CFR part 71 by establishing RNAV Route Q-476 and amending RNAV Route T-393 in the northeastern United States to support NextGen efforts to provide a modern RNAV route structure to improve the safety and efficiency of the NAS. The RNAV routes are described below.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of establishing RNAV Route Q-476 and amending RNAV Route T-393 in the northeastern United States, to provide additional RNAV routing within the NAS in support of transitioning it from ground-based to satellite-based navigation, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p.389.
Office of Natural Resources Revenue (ONRR), Interior.
Final rule.
Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (referred to herein as the “Inflation Adjustment Acts”), and Office of Management and Budget (OMB) guidance, ONRR is adjusting for inflation the civil monetary penalty (CMP) amounts it assesses under the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA).
This rule is effective on January 22, 2024.
For questions on procedural issues, contact Ginger Hensley, Regulatory Specialist, by telephone at (303) 231-3171 or by email to
FOGRMA, at 30 U.S.C. 1719(a) through (d), authorizes the Secretary of the Interior (“Secretary”) to assess CMPs for royalty reporting and other violations. Pursuant to authority delegated to it by the Secretary, ONRR published regulations at 30 CFR part 1241 implementing the Secretary's CMP authority. The Inflation Adjustment Acts require Federal agencies to publish annual CMP inflation adjustments in the
The Inflation Adjustment Acts and OMB Memorandum No. M-24-07, December 19, 2023, (“OMB Memorandum”) specify that the annual inflation adjustments are based on the percent change between the Consumer Price Index for all Urban Consumers (“CPI-U”) published by the Department of Labor for the month of October in the year of the previous adjustment, and the October CPI-U for the preceding year. The OMB Memorandum further specifies that the cost-of-living adjustment multiplier for 2024, not seasonally adjusted, is 1.03241 for CY 2024 (the October 2023 CPI-U (307.671) divided by the October 2022 CPI-U (298.012) = 1.03241). ONRR used this guidance to calculate required inflation adjustments. Pursuant to the Inflation Adjustment Acts, any increases in CMPs are rounded to the nearest whole dollar and the new maximum penalty rates apply to CMPs assessed after the date the increase takes effect.
This final rule increases the maximum CMP dollar amounts for each of the four violation categories identified in 30 U.S.C. 1719(a)-(d) and implemented by 30 CFR part 1241. The following table identifies the applicable ONRR regulations, the dollar amounts set forth in the regulations, and the adjusted amounts.
Executive Order (“E.O.”) 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the OMB will review all significant rules. OIRA has determined that agency regulations intended only to implement the annual inflation adjustments are not significant, provided they are consistent with the OMB Memorandum. Because ONRR is only implementing the annual inflation adjustments in this final rule, this rule is not significant under E.O. 12866.
E.O. 13563 reaffirms the principles of E.O. 12866, while calling for improvements in the United States' regulatory system to promote predictability, to reduce uncertainty, and to use the most innovative and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. ONRR developed this rule in a manner consistent with these requirements.
This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601,
This rule is not a major rule under 5 U.S.C. 804(2), the Congressional Review Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more;
(b) Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, local government agencies; or geographic regions; and
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. Therefore, ONRR is not required to provide a statement containing the information that the Unfunded Mandates Reform Act (2 U.S.C. 1531,
This rule does not result in a taking of private property or otherwise have takings implications under E.O. 12630. Therefore, this rule does not require a takings implication assessment.
Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient Federalism implications to warrant the preparation of a federalism summary impact statement.
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a), which requires that ONRR review all regulations to eliminate errors and ambiguity and to write them to minimize litigation; and
(b) Meets the criteria of section 3(b)(2), which requires that ONRR write all regulations in clear language, using clear legal standards.
The Department of the Interior (“DOI”) strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. Under the DOI's consultation policy and the criteria in E.O. 13175, ONRR evaluated this rule and determined that it will have no substantial, direct effects on Federally recognized Indian Tribes and does not require consultation.
This rule:
(a) Does not contain any new information collection requirements; and
(b) Does not require a submission to OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. ONRR is not required to provide a detailed statement under NEPA because this rule qualifies for categorical exclusion under 43 CFR 46.210(i) in that this rule is “. . . of an administrative, financial, legal, technical, or procedural nature. . . .” ONRR also has determined that this rule is not involved in any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
This rule is not a significant energy action under the definition in E.O. 13211 and, therefore, does not require a Statement of Energy Effects.
ONRR is required by E.O. 12866 (section 1(b)(12)), E.O. 12988 (section 3(b)(1)(B)), and E.O. 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule ONRR publishes must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible;
If you feel that ONRR has not met these requirements, send your comments to
The Act requires agencies to publish annual inflation adjustments by January 15 of each year, notwithstanding section 553 of the Administrative Procedure Act. OMB has interpreted this direction to mean that the usual APA public procedure for rulemaking—which includes public notice of a proposed rule, an opportunity for public comment, and a delay in the effective date of a final rule—is not required when agencies issue regulations to implement the annual adjustments to civil penalties that the 2015 Act requires.
Administrative practice and procedure, Coal, Geothermal energy, Indian—lands, Mineral royalties, Natural gas, Oil and gas exploration, Penalties, Public lands—mineral resources.
For the reasons discussed in the preamble, ONRR amends 30 CFR part 1241 as set forth below:
25 U.S.C. 396
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving changes to the Florida State Implementation Plan (SIP), submitted by the Florida Department of Environmental Protection (FDEP) on April 1, 2022. The final rule revision corrects definitions, updates and removes outdated references, clarifies rule applicability in several rules within the Florida SIP, and removes methods to determine visible emissions. EPA is approving the changes because they are consistent with the Clean Air Act (CAA or Act).
This rule is effective February 21, 2024.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2022-0660. All documents in the docket are listed on the
Tiereny Bell, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9088. Ms. Bell can also be reached via electronic mail at
On April 1, 2022, FDEP submitted a SIP revision to EPA regarding Chapter 62-296, Florida Administrative Code (F.A.C.),
Through a notice of proposed rulemaking (NPRM) published on November 28, 2023 (88 FR 83062), EPA proposed to approve the April 1, 2022, SIP submittal, which corrects definitions, updates and removes outdated references, clarifies applicability in these rules, and removes methods to determine visible emissions in Rules 62-296.320 and 62-296.406. The details of the submission, as well as EPA's rationale for changing these rules, are described in more detail in EPA's November 28, 2023, NPRM. Comments on the November 28, 2023, NPRM were due on or before December 28, 2023. EPA received one comment on the November 28, 2023, NPRM, and it supports EPA's action. No adverse comments were received.
In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section I of this preamble, EPA is finalizing the incorporation by reference of Rule 62-296.320(4),
EPA is approving the changes to Rule 62-296.320(4),
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and
FDEP did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.
This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 22, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
Under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is approving the limited maintenance plans (LMPs) submitted by the Ohio Environmental Protection Agency (OEPA) for the Canton-Massillon (Stark County), Cleveland-Akron-Lorain (Cuyahoga, Lake, Lorain, Medina, Portage, and Summit Counties) and Steubenville-Weirton Ohio-West Virginia (Jefferson County) maintenance areas. The plans address the second 10-year maintenance periods for particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM
This final rule is effective on February 21, 2024.
EPA has established dockets for this action under Docket ID No. EPA-R05-OAR-2021-0615 (Canton-Massillon), EPA-R05-OAR-2021-0616 (Cleveland-Akron-Lorain), or EPA-R05-OAR-2021-0617 (Steubenville-Weirton). All documents in the dockets are listed on the
Cecilia Magos, Attainment Planning and Maintenance Section, Air Programs Branch (AR18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7336,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On November 13, 2009, EPA designated the Canton-Massillon (Canton), Cleveland-Akron-Lorain (Cleveland), and Steubenville-Weirton (Steubenville) areas as PM
On July 5, 2023 (88 FR 42900), EPA proposed to approve the second 10-year PM
EPA is approving the second 10-year PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993), and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
OEPA did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA performed an environmental justice analysis, as is described in the section titled “Environmental Justice Considerations” in the notice of proposed rulemaking.
This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 22, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Title 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Correcting amendment.
EPA issued a final rule in the
Effective on January 22, 2024.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2020-0336, is available at
Charles Smith, Director, Registration Division (7505T), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (202) 566-1030; email address:
The Agency included in the October 11, 2022, final rule a list of those who may be potentially affected by this action.
EPA issued a final rule in the
Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this correction final without prior proposal and opportunity for comment, because EPA inadvertently omitted an instruction to the
No. For a detailed discussion concerning the statutory and Executive order review refer to Unit VI. of the October 11, 2022, final rule.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, 40 CFR part 180 is corrected by making the following correcting amendment:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
(1) * * *
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notification of regulatory guidance.
FMCSA announces the availability of the Medical Examiner's Handbook (MEH), which includes updates to the Medical Advisory Criteria published in the Code of Federal Regulations (CFR). The MEH provides information about regulatory requirements and guidance to medical examiners (ME) listed on FMCSA's National Registry of Certified Medical Examiners (National Registry) who perform physical qualification examinations of interstate commercial motor vehicle (CMV) drivers. The January 2024 edition of the MEH replaces all previous handbook editions.
This guidance is applicable on January 22, 2024.
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-4001,
To view comments or any documents mentioned as being available in the docket, go to
FMCSA has statutory authority under 49 U.S.C. 31136(a)(3) and 31149(c)(1)(A)(i)—delegated to the Agency by 49 CFR 1.87(f)—to establish regulations to ensure the physical condition of CMV operators is adequate to enable them to operate the vehicles safely. The guidance in the MEH and Medical Advisory Criteria is related to the physical qualification regulations required by those sections.
The notice and comment rulemaking procedures of the Administrative Procedure Act (APA) do not apply to interpretative rules and general statements of policy (commonly called “guidance”) (5 U.S.C. 553(b)(A)). The MEH is a guidance document that does not amend any Agency regulation or establish any requirements for MEs or drivers not found in existing regulations. Accordingly, FMCSA was not required under the APA to solicit public comment on the MEH. Nevertheless, to ensure that the MEH provides clear, useful, and relevant information for stakeholders and as encouraged by DOT policy,
FMCSA's mission is to reduce crashes, injuries, and fatalities involving large trucks and buses. A critical element of FMCSA's safety program is ensuring CMV drivers are in adequate physical condition to operate the vehicles safely. MEs on the National Registry make the determination regarding a driver's physical qualification.
The Federal Motor Carrier Safety Regulations (FMCSRs), in 49 CFR 391.41 through 391.49, provide the basic driver physical qualification standards for interstate CMV operators. MEs make physical qualification determinations on a case-by-case basis and may consider guidance to assist with making those determinations.
FMCSA first posted the MEH to its website in 2008 to provide guidance to MEs on the physical qualification standards in the FMCSRs and the conducting of the physical qualification examination. FMCSA has also issued guidance for MEs in the form of Medical Advisory Criteria, now published at 49 CFR part 391, Appendix A. However, FMCSA withdrew the MEH in 2015 because some of the information was obsolete or was prescriptive in nature, and informed MEs and training organizations that the MEH was no longer in use and should not be considered as Agency guidance.
FMCSA's Medical Review Board (MRB) was established to provide FMCSA with medical advice and recommendations on medical standards and guidelines for the physical qualifications of CMV operators, ME education, and medical research (49 U.S.C. 31149(a)(1)). The MRB, in view of its statutory creation and advisory function, is chartered by DOT as an advisory committee under the Federal Advisory Committee Act (5 U.S.C. Ch. 10). See also
To assist in the development of the MEH, FMCSA, in collaboration with its
After consideration of the public comments and further internal review, FMCSA is now issuing a revised MEH, which includes updated Medical Advisory Criteria, with the goal of providing information about regulatory requirements and guidance for MEs to consider when making physical qualification determinations in conjunction with established best medical practices. In addition to being included in the MEH, the revised Medical Advisory Criteria are being published in Appendix A to 49 CFR part 391 concurrent with this notification. The final version of the criteria is identical in both publications.
The Agency notes that the updated MEH reflects the fact that medical certification under 49 CFR 391.64 for certain drivers who participated in FMCSA's Vision Waiver Study Program is no longer available. On January 21, 2022, FMCSA published a new alternative vision standard and eliminated physical qualification under § 391.64 (87 FR 3390). As of March 22, 2023, all Medical Examiner's Certificates, Form MCSA-5876, issued under § 391.64 became void. FMCSA is aware that references to medical certification under § 391.64 exist in FMCSA's current regulations and forms. The Agency plans to remove obsolete provisions in an upcoming technical amendment rule.
FMCSA received 67 comments in response to the draft MEH from a wide range of commenters, including individuals; medical providers (such as MEs listed on the National Registry and Concentra); drivers; motor carriers (including owner-operators and Schneider National, Inc.); a patient advocacy group (the Alliance of Sleep Apnea Partners (ASAP)); safety advocacy groups (a joint comment was filed by the Truck Safety Coalition (TSC), Citizens for Reliable and Safe Highways (CRASH), and Parents Against Tired Truckers (PATT)); the National Transportation Safety Board (NTSB); five members of Congress who filed a joint comment; and additional associations. Specifically, the medical associations were the American Academy of Sleep Medicine (AASM), the American College of Occupational and Environmental Medicine (ACOEM), and the American Physical Therapy Association. The trade associations were the American Trucking Associations (ATA), the National Association of Small Trucking Companies, the National Beer Wholesalers Association, the Owner-Operator Independent Drivers Association (OOIDA), and the Truckload Carriers Association.
The comments covered a variety of topics. Although the APA notice and comment requirements do not apply to guidance documents, FMCSA provides its responses to some of the comments in the interest of transparency.
Some commenters wanted FMCSA to provide more specificity regarding certain types of evaluations and stated the draft MEH is less useful than the previous MEH due to its lack of specificity. Most of the physical qualification standards are broadly stated, and establishing specific testing requirements, such as methodology and acceptable laboratory values, would have to occur through rulemaking. Thus, FMCSA believes the level of specificity in the current version of the MEH is appropriate for a regulatory guidance document.
However, FMCSA made numerous changes to improve the overall clarity, quality, and substance of the MEH based on suggestions from commenters. For example, based on comments from ACOEM and an individual, FMCSA edited several sections to emphasize privacy protections for the individuals being examined, particularly that the right to receive a copy of the Medical Examination Report Form, MCSA-5875, is personal to the individual and does not depend on who paid for or requested the physical qualification examination. In response to a comment from OOIDA, FMCSA also clarified when the individual's consent is required for the ME and the employer to request and receive protected health information about the individual being examined.
FMCSA incorporated a suggestion from OOIDA to add that individuals may request a second opinion and physical qualification examination from another ME if they choose but are expected to provide the same medical information to both MEs. In response to comments from an individual and ACOEM, FMCSA also stated that MEs should visualize the body while examining an individual and conduct an inguinal hernia examination for all males.
ACOEM also asked FMCSA to clarify issues regarding incomplete examinations, and the MEH now states that once an ME begins an examination, the results must be reported to the National Registry even if the examination is not completed. At the request of ACOEM and two MEs, FMCSA clarified issues relating to the use of the determination pending status, including that it does not extend the expiration date of an individual's current Medical Examiner's Certificate, Form MCSA-5876. One commenter, who is both an ME and a commercial driver's license holder, noted that some MEs do not use the most current versions of forms, so FMCSA clarified that using the current form is mandatory.
FMCSA made several other revisions to the MEH in response to comments and suggestions from ACOEM. For example, FMCSA clarified that the alternative vision standard is applicable only if the worse eye cannot be corrected to meet the distant visual acuity standard with corrective lenses. FMCSA added that if the individual meets the vision standard while wearing corrective lenses, it is not necessary to document the distant visual acuity without corrective lenses. FMCSA also added that when it is indicated that a medical exemption is required, the Medical Examiner's Certificate, Form MCSA-5876, is not valid unless the individual applies for and is issued the medical exemption from FMCSA. It was emphasized that MEs may certify an individual for less than the maximum period whenever they determine they need to monitor the individual more frequently. FMCSA moved the discussion of renal dialysis from the section on cardiovascular diseases to the section on diabetes because diabetes leads to a greater incidence of kidney disease than cardiovascular disease does.
In addition, ACOEM requested that FMCSA establish a regular cadence for updating the MEH. FMCSA intends to update the MEH periodically.
Concentra and ACOEM questioned why certain medical expert panel reports and other guidance were included in the draft MEH, while others were not. After reviewing the comments, FMCSA agrees that including some reports but not others has the potential to create confusion.
FMCSA revised the sections on narcolepsy and idiopathic hypersomnia based on comments by AASM and an individual. FMCSA deleted the references to obstructive sleep apnea (OSA) and added that the conditions should be diagnosed with an overnight lab-based sleep study followed by a Multiple Sleep Latency Test the next morning.
FMCSA made several changes in the section relating to the scheduled drug and alcohol standards in light of comments by
Of the 67 comments received, 36 referenced OSA. Of these, 27 commented only on OSA.
Several commenters, including ATA and OOIDA, indicated that the guidance in the MEH relating to OSA runs afoul of Public Law 113-45 (127 Stat. 557 (Oct. 15, 2013), 49 U.S.C. 31305 note), which provides FMCSA may implement or enforce a requirement providing for the screening, testing, or treatment of CMV operators for sleep disorders only if the requirement is adopted pursuant to a rulemaking proceeding. When drafting the MEH, FMCSA was mindful of Public Law 113-45. However, Public Law 113-45 is not applicable here because the MEH offers only guidance and FMCSA has not adopted requirements regarding OSA screening, testing, or treatment. Because this is not a rulemaking proceeding, FMCSA cannot accommodate the requests by commenters that FMCSA require MEs to use specific, objective criteria for OSA screening, treatment, and treatment evaluation.
FMCSA has gone to great efforts throughout the MEH to distinguish between regulatory requirements and non-binding guidance. The MEH states that MEs are free to choose whether to utilize guidance and recommendations as a basis for decision-making and that when the terms “recommend,” “consider,” “may,” “should,” or “could” are used in the MEH, they are used in a recommendatory or permissive sense and relate to guidance. In particular, the MEH states that the FMCSRs do not include requirements for MEs to screen individuals for OSA or to recommend that an individual be referred for OSA testing and do not include preferred diagnostic testing methods, treatment methods, or requirements by which to assess compliance with treatment. Instead, the MEH presents various considerations for ME when making a physical qualification determination.
Several commenters, including ASAP, ATA, CRASH, PATT, and TSC, indicated FMCSA should initiate a rulemaking to develop specific OSA screening, testing, and treatment requirements for CMV drivers rather than to issue more guidance. The notice issued in 2017 withdrawing an advance notice of proposed rulemaking explains FMCSA's reasons for not proceeding with a rulemaking on OSA (see Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea, 82 FR 37038 (Aug. 8, 2017)).
Several comments were received regarding the link in the MEH to the November 21, 2016, joint MRB and Motor Carrier Safety Advisory Committee recommendations regarding OSA. FMCSA continues to include the link in the final MEH for ease of access. As suggested by NTSB, FMCSA added text to state that the joint recommendations includes information on screening and diagnosing individuals with moderate-to-severe OSA, and not just certifying such individuals.
AASM, ASAP, OOIDA, and an individual questioned why the draft MEH included a window of 3 to 5 years for retesting individuals diagnosed with moderate-to-severe OSA treated with continuous positive airway pressure. FMCSA removed the recommendation of a time frame for retesting. FMCSA added that “untreated moderate-to-severe OSA is associated with cardiovascular and cerebrovascular morbidity, metabolic disease, and mortality” in response to a comment from AASM.
AASM recommended that FMCSA remove “moderate-to-severe” from the statement that untreated moderate-to-severe OSA may contribute to certain adverse conditions because they may be experienced at any level of OSA severity. FMCSA determined that the focus of the guidance is appropriately on moderate-to-severe OSA because it is likely to interfere with the ability to control and drive a CMV safely as required by the applicable standard.
Several commenters stated that MEs should not consider a single factor as being determinative with respect to whether an individual needs to be screened for OSA. FMCSA agrees and reiterates that the MEH provides guidance stating that the use of multiple risk factors is a reasonable approach to identify individuals at risk for moderate-to-severe OSA, rather than relying only on a single factor. The MEH guidance leaves it to the ME to determine whether an individual needs to be screened based on the individual circumstances.
AASM and ASAP recommended adding that moderate-to-severe OSA is to be “adequately treated” or “treated effectively.” As indicated in the MEH, determining whether treatment is adequate or effective should be left to the ME to determine based on the individual circumstances.
Several commenters, including ACOEM and Concentra, stated that the hypertension table from the 2013 expert panel recommendations titled “Medical Examiner Physical Qualification Standards and Clinical Guidelines for Cardiovascular Disease and Commercial Motor Vehicle Driver Safety” was vague, confusing, and difficult to understand. FMCSA agrees that the table has the potential to create confusion. FMCSA therefore decided to remove the hypertension table from the MEH and to continue the current guidance in the Medical Advisory Criteria. FMCSA is currently conducting research on this topic and will update the MEH based on the final report if warranted.
The NTSB and ACOEM stated that the information provided for non-insulin-treated diabetes is inadequate and that there should be some guidance on the complications and co-morbidities of non-insulin-treated diabetes mellitus. FMCSA does not have a medical standard specific to non-insulin-treated diabetes mellitus, and therefore cannot provide the level of specificity sought by these commenters.
However, FMCSA provided some additional information, including considerations for MEs when making a physical qualification determination for an individual with non-insulin-treated diabetes mellitus. In addition, FMCSA is in the process of seeking approval from the Office of Management and Budget for a new Non-Insulin-Treated Diabetes Mellitus Assessment Form. If approved, FMCSA will post the form on its website for MEs to use as a voluntary, optional tool to request additional information, with the individual's consent, when making a physical qualification determination for an individual with non-insulin-treated diabetes mellitus. It will also update the MEH with this information if approved.
Some commenters requested changes to the MEH that are beyond the scope of this guidance, including some that would require rulemaking and changes to existing law.
Each guidance document issued by FMCSA must be published on a publicly accessible DOT internet website on the date of issuance (49 U.S.C. 113 note).
FMCSA expects to review the guidance no later than 5 years after it is published and will consider at that time whether the guidance should be withdrawn, reissued, or incorporated into FMCSA's regulations.
U.S. International Development Finance Corporation.
Proposed rule; correction.
This document corrects a U.S. International Development Finance Corporation (DFC) proposed rule published in the
January 22, 2024.
Agency Submitting Officer: Deborah Papadopoulos, (202) 357-3979,
Office of Personnel Management; Internal Revenue Service, Department of the Treasury; Employee Benefits Security Administration, Department of Labor; Centers for Medicare & Medicaid Services, Department of Health and Human Services.
Proposed rules; reopening of comment period.
This document reopens the comment period for the proposed rules entitled “Federal Independent Dispute Resolution Operations” that appeared in the November 3, 2023, issue of the
The comment period for the proposed rules published November 3, 2023, at 88 FR 75744, is reopened. To be assured consideration, comments must be received at one of the addresses provided below, no later than February 5, 2024.
Written comments may be submitted to the addresses specified below. Any comment that is submitted will be shared among the Department of the Treasury, the Department of Labor, the Department of Health and Human Services (the Departments), and the Office of Personnel Management. Please do not submit duplicates.
Comments will be made available to the public. Warning: Do not include any personally identifiable information (such as name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments are posted on the internet exactly as received and can be retrieved by most internet search engines. No deletions, modifications, or redactions will be made to the comments received, as they are public records. Comments may be submitted anonymously.
In commenting, please refer to file code RIN 0938-AV15. Because of staff and resource limitations, the Departments cannot accept comments by facsimile (FAX) transmission.
Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
For information on viewing public comments, see the beginning of the
Padma Babubhai Shah, Office of
The Departments of the Treasury, Labor, and HHS (collectively, the Departments) and the Office of Personnel Management (OPM) published proposed rules entitled “Federal Independent Dispute Resolution Operations,” which appeared in the
The Departments published the final rules entitled “Federal Independent Dispute Resolution Process Administrative Fee and Certified IDR Entity Fee Ranges” (the IDR Fees final rules), which appeared in the
In addition, the preamble to the IDR Fees final rules addresses how changes in that rulemaking relate to the proposals contained in the Federal Independent Dispute Resolution Operations proposed rules, for which the comment period closed on January 2, 2024. To provide additional time for interested parties to consider and comment on any implications of the IDR Fees final rules, the Departments and OPM are reopening the comment period on the Federal Independent Dispute Resolution Operations proposed rules for all comments from January 22, 2024 to February 5, 2024. To be assured consideration, comments on the proposed rules must be received no later than February 5, 2024.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2021-20-08, which applies to certain Airbus SAS Model A318, A319, A320, A321, A330-200, A330-200 Freighter, A330-300, A330-800, A330-900, A340-200, A340-300, A340-500, A340-600, and A380-800 series airplanes. AD 2021-20-08 requires replacing certain parts manufacturer approval (PMA) nickel-cadmium (Ni-Cd) batteries with serviceable Ni-Cd batteries. Since the FAA issued AD 2021-20-08, it was determined that the on-wing preservation procedures originally provided in the service information did not ensure the expected preservation of the battery capacity. This proposed AD would add airplanes to the applicability and require replacement of certain affected parts with serviceable parts as a precondition for return to service of airplanes from storage or parking, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by March 7, 2024.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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• For the EASA AD identified in this NPRM, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Dan Rodina, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3225; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan Rodina, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3225; email
The FAA issued AD 2021-20-08, Amendment 39-21746 (86 FR 57025, October 14, 2021) (AD 2021-20-08), for all Airbus SAS Model A318, A319, A320, A321, A330-200, A330-200 Freighter, A330-300, A330-800, A330-900, A340-200, A340-300, A340-500, A340-600, and A380-800 series airplanes. AD 2021-20-08 was prompted by an MCAI originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued AD 2020-0274, dated December 10, 2020, to correct an unsafe condition.
AD 2021-20-08 requires replacing certain PMA nickel-cadmium (Ni-Cd) batteries with serviceable Ni-Cd batteries or maintaining the electrical storage capacity of those PMA Ni-Cd batteries during airplane storage or parking. The FAA issued AD 2021-20-08 to address reduced capacity of certain Ni-Cd batteries, which could lead to reduced battery endurance performance and possibly result in failure to supply the minimum essential electrical power during abnormal or emergency conditions.
Since the FAA issued AD 2021-20-08, EASA superseded EASA AD 2020-0274, dated 10 December 2020, and issued EASA AD 2023-0196, dated November 10, 2023 (EASA AD 2023-0196) (also referred to as the MCAI), to correct an unsafe condition for all:
• Airbus SAS Model A300 B4-2C, B4-102, B4-103, B4-120, B4-203, B4-220;
• Airbus SAS Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes;
• Airbus SAS Model A300 B4-605R and B4-622R airplanes;
• Airbus SAS Model A300 C4-203, C4-620, and C4-605R variant F airplanes;
• Airbus SAS Model A300 F4-203, F4-605R, F4-608ST, and F4-622R airplanes;
• Airbus SAS Model A310-203, -221, -222, -204, -203C, -322, -304, -324, -308, and -325 airplanes;
• Airbus SAS Model A318-111, -112, -121, and -122 airplanes;
• Airbus SAS Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, -153N, and -171N airplanes;
• Airbus SAS Model A320-211, -212, -214, -215, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes;
• Airbus SAS Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -251NX, -252N, -252NX, -253N, -253NX, -271N, -271NX, -272N, and -272NX airplanes;
• Airbus SAS Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, -343, -743L, -841, and -941 airplanes;
• Airbus SAS Model A340-211, -212, -213, -311, -312, -313, -541, -542, -642, and -643 airplanes;
• Airbus SAS Model A350-941 and A350-1041 airplanes; and
• Airbus SAS Model A380-841, -842, and -861 airplanes.
Model A300 B4-102, A300 B4-120, A300 B4-220, A300 C4-203, A300 C4-620, A300 F4-203, A300 F4-608ST, A310-203C, A310-308, A320-215, A330-743L, A340-542, and A340-643 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability. The MCAI states that it was determined that the on-wing preservation procedures originally provided for these airplanes did not
The FAA is proposing this AD to address the potential for reduced battery capacity. This condition, if not addressed, could lead to reduced battery endurance performance, possibly resulting in failure to supply the minimum essential electrical power during abnormal or emergency conditions. You may examine the MCAI in the AD docket at
EASA AD 2023-0196 specifies procedures for replacing certain PMA Ni-Cd batteries with serviceable Ni-Cd batteries. EASA AD 2023-0196 adds Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); Model A310 series airplanes; and Model A350-941 and -1041 airplanes to the applicability. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in EASA AD 2023-0196 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0196 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0196 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0196 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0196. Service information required by EASA AD 2023-0196 for compliance will be available at
The FAA estimates that this AD, if adopted as proposed, would affect 1,814 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by March 7, 2024.
This AD replaces AD 2021-20-08, Amendment 39-21746 (86 FR 57025, October 14, 2021) (AD 2021-20-08).
This AD applies to all Airbus SAS airplanes identified in paragraphs (c)(1) through (14) of this AD, certificated in any category.
(1) Model A300 B4-2C, B4-103, and B4-203 airplanes.
(2) Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes.
(3) Model A300 B4-605R and B4-622R airplanes.
(4) Model A300 C4-605R variant F airplanes.
(5) Model A300 F4-605R and F4-622R airplanes.
(6) Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes.
(7) Model A318-111, -112, -121, and -122 airplanes.
(8) Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, -153N, and -171N airplanes.
(9) Model A320-211, -212, -214, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes.
(10) Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -251NX, -252N, -252NX, -253N, -253NX, -271N, -271NX, -272N, and -272NX airplanes.
(11) Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, -343, -841, and -941 airplanes.
(12) Model A340-211, -212, -213, -311, -312, -313, -541, and -642 airplanes.
(13) Model A350-941 and A350-1041 airplanes.
(14) Model A380-841, -842, and -861 airplanes.
Air Transport Association (ATA) of America Code 24, Electrical Power.
This AD was prompted by a report that repetitive disconnection and reconnection of certain nickel-cadmium (Ni-Cd) batteries during airplane parking or storage could lead to a reduction in capacity of those batteries. The FAA is issuing this AD to address reduced capacity of certain Ni-Cd batteries. The unsafe condition, if not addressed, could lead to reduced battery endurance performance and possibly result in failure to supply the minimum essential electrical power during abnormal or emergency conditions.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2023-0196, dated November 10, 2023 (EASA AD 2023-0196).
(1) Where EASA AD 2023-0196 refers to its effective date, this AD requires using the effective date of this AD.
(2) This AD does not adopt the “Remarks” section of EASA AD 2023-0196.
The following provisions also apply to this AD:
(1)
(2)
(3)
For more information about this AD, contact Dan Rodina, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3225; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2023-0196, dated November 10, 2023.
(ii) [Reserved]
(3) For EASA AD 2023-0196, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to revoke Jet Route J-179 in its entirety and amend United States Area Navigation Route (RNAV) Q-10 in the vicinity of Emmonak, AK. The FAA is proposing this action due to the pending decommissioning of the Aniak, AK, Nondirectional Radio Beacon (NDB) and the St Marys, AK, NDB.
Comments must be received on or before March 7, 2024.
Send comments identified by FAA Docket No. FAA-2024-0020 and Airspace Docket No. 23-AAL-19 using any of the following methods:
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FAA Order JO 7400.11H, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Steven Roff, Rules and Regulations Group, Office of Policy, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System (NAS).
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific segment of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Jet Routes are published in paragraph 2004 and United States Area Navigation Routes are published in paragraph 2006 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the
FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
In 2003, Congress enacted the Vision 100-Century of Aviation Reauthorization Act (Pub. L. 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.
In support of NextGen, this proposal is part of an ongoing, large, and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite-based navigation development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide en route continuity that is not subject to the restrictions associated with ground-based airway navigation.” As part of this project, the FAA evaluated the existing Colored Airway structure for: (a) direct replacement (
The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from dependency on NDBs and move to develop and improve the RNAV route structure.
Jet Route J-179 extends between the Middleton Island, AK, Very High Frequency Omnidirectional Range/Distance Measuring Equipment (VOR/DME) and the Emmonak, AK, VOR/DME. The decommissioning of the Aniak and St Marys NDBs will leave portions of J-179 unusable. To mitigate the loss of J-179, the FAA is proposing to amend RNAV route Q-10. The proposed amendment to Q-10 would extend the route along essentially the same track as the current J-179. The only difference between the current J-179 and the proposed Q-10 is that the proposed track for Q-10 would not include the St Marys NDB. Instead, Q-10 would extend directly between the Emmonak NDB and the Aniak NDB.
The FAA is proposing an amendment to 14 CFR part 71 to revoke Jet Route J-179 in its entirety and amend United States Area Navigation Route Q-10 in the vicinity of Emmonak, AK.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of fishery management plan amendment; request for comments.
The North Pacific Fishery Management Council (Council) submitted Amendment 126 to the Fishery Management Plans for Groundfish of the Bering Sea/Aleutian Islands Management Area (BSAI FMP) and Amendment 114 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP). If approved, Amendments 126/114 would expand electronic monitoring (EM) to pelagic trawl pollock catcher vessels and tenders delivering to shoreside processors or stationary floating processors in the Bering Sea, Aleutian
Comments must be received no later than March 22, 2024.
1. February 28, 2024, 6 p.m. Alaska local time, Kodiak, AK.
2. March 12, 2024, 6 p.m. Pacific time, Virtual (see
You may submit comments on this document, identified by NOAA-NMFS-2023-0125, by any of the following methods:
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Electronic copies of Amendment 126 to the BSAI FMP and Amendment 114 to the GOA FMP, the Environmental Assessment/Regulatory Impact Review prepared for this action (the Analysis), and the Finding of No Significant Impact prepared for this action may be obtained from
Pursuant to section 313(c) of the Magnuson-Stevens Act, NMFS will hold public hearings to accept oral and written comments on the proposed rule during the public comment period. The first public hearing will be held at the Kodiak Fisheries Research Center, 301 Research Court, Kodiak, Alaska 99615. The second public hearings will be held virtually, available at
Joel Kraski,
The Magnuson-Stevens Act requires that each regional fishery management council submit any FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the
The Council prepared, and the Secretary approved, the BSAI FMP and GOA FMP under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801
Amendments 126/114 would amend the Council's fisheries research plan prepared under the authority of section 313 of the Magnuson-Stevens Act. NMFS published regulations implementing the plan on November 21, 2012 (77 FR 70062) and integrated EM into the plan on August 8, 2017 (82 FR 36991). The Secretary implements the fisheries research plan through the North Pacific Observer Program (Observer Program). Its purpose is to collect data necessary for the conservation, management, and scientific understanding of the groundfish and halibut fisheries off Alaska.
The Council's intent in recommending Amendments 126/114 is to improve salmon accounting, reduce monitoring costs, improve the quality of monitoring data, and modify current retention and/or discard requirements as necessary to achieve these objectives in association with catcher vessels using trawl gear in the BS, AI, and GOA Pollock fisheries along with associated tender vessels and processors.
Amendment 126 would add to section 3.9.2 of the BSAI FMP and Amendment 114 would add to section 3.9.2 of the GOA FMP to allow the use of EM systems to meet fisheries monitoring requirements under the Observer Program.
Amendments 126/114 would create an EM option—the trawl EM category—for pelagic trawl pollock catcher vessels and tender vessels delivering to a shoreside processor or stationary floating processor in the Bering Sea, Aleutian Islands, and Gulf of Alaska. The BSAI and GOA FMPs currently authorize the use of EM in the partial coverage category, but not the full observer coverage category of the Observer Program. Under this voluntary program, eligible catcher vessels and tender vessels would apply annually for entry into the trawl EM category. Shoreside processors and stationary floating processors would indicate that they intend to receive trawl EM category deliveries during their annual Catch Monitoring Control Plan process.
Amendments 126/114 would allow for monitoring to be conducted by an EM system on board both full and partial coverage trawl catcher vessels combined with sampling by observers stationed at shoreside or stationary floating processors. For fishing trips in the trawl EM category, the responsibilities normally conducted by at-sea observers would be completed by observers stationed at the shoreside or stationary floating processor plant. All fishing trips would operate under improved retention (
The use of EM and maximized retention on vessels would allow for observers to collect unbiased data at the shoreside or stationary floating processors. Shoreside and stationary floating processors would indicate their intent to receive EM deliveries during Catch Monitoring Control Plan approval process to join the trawl EM program annually. Shoreside and stationary floating processors would also indicate whether they expect to use tender vessels.
NMFS is soliciting public comments on proposed Amendments 126/114 through the end of the comment period (see
Section 313 of the Magnuson-Stevens Act requires NMFS to provide a 60-day public comment period on the proposed rule and conduct a public hearing in
People wanting to make an oral statement for the record at the a public hearing are encouraged to submit a written copy of their statement to NMFS using one of the methods identified under
16 U.S.C. 1801
Agency for International Development (USAID).
Notice of Advisory Committee Public Meeting and request for public comment.
Pursuant to the Federal Advisory Committee Act (FACA), notice is hereby given of Advisory Committee on Voluntary Foreign Aid (ACVFA) public meeting on February 7th, 2024.
To view additional information related to ACVFA please visit
This event will feature a conversation between the USAID Administrator and the ACVFA Chair, as well as two discussion panels featuring ACVFA members on key Agency priorities such as democratic governance, food security, climate change, private sector engagement, and inclusive development.
You may submit comments regarding the work of ACVFA to
American Sign Language interpretation will be provided during the public meeting. If you require a reasonable accommodation, please email
The entirety of this meeting is open to the public. You may register to watch the live public meeting at this link:
Sophia Lajaunie, Designated Federal Officer for ACVFA, at
ACVFA is USAID's external advisory committee, bringing together representatives from private voluntary organizations, nongovernmental organizations (NGOs), academia, civil society, and the private sector. Its membership of internationally recognized leaders represent a broad range of sectors who support the Agency's mission and goals by advising on key development challenges and priorities.
Pursuant to its charter, ACVFA is holding an annual public meeting on February 7, 2024, from 10:30 a.m. to 12:00 p.m. ET. This meeting is free and open to the public. The Committee welcomes public participation and comment before, during, and after the meeting via the web and/or email addresses provided above.
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
The ABS includes all nonfarm employer businesses filing Internal Revenue Service (IRS) tax forms as individual proprietorships, partnerships, or any other type of corporation, with receipts of $1,000 or more. While the 2023 ABS sampled approximately 850,000 employer businesses to produce detailed statistics by owner demographics, the 2024 ABS sample is reduced to approximately 330,000 employer businesses. Starting with survey year 2024 (reference year 2023), the sample is reduced to approximately 330,000 employer businesses annually (survey years 2024-2027) to reduce the burden on the respondents. The reduced sample size will yield summary-level estimates for women-owned, minority-owned, and veteran-owned businesses at the 4-digit
The 2024 ABS (reference year 2023) will also sample 8,000 nonprofit organizations to collect their research activities. Historically, nonprofit organizations were in scope to the ABS, however, they were not surveyed before the 2021 ABS because the survey does not expect nonprofit organizations to be classifiable by sex, ethnicity, race, or veteran status. To include the nonprofit organizations, the total ABS sample size is approximately 338,000 (330,000 employer businesses + 8,000 nonprofit organizations) for the 2024 survey. Of note, nonprofit organizations will only see questions relating to research activities and will not be asked any questions relating to owner demographics.
The ABS is designed to allow for incorporating new content each survey year based on topics of relevance. Each year, new questions will be submitted to the Office of Management and Budget (OMB) for approval.
Employer businesses will be asked questions about the sex, ethnicity, race, and veteran status for up to four persons owning the majority of rights, equity, or interest in the business. Additionally, businesses will be asked a question on gender identify as part of the owner section of the questionnaire. Organizations sampled as nonprofits and respondents with 1-9 employees will be asked about research and development (R&D) activities, R&D costs, and R&D capital expenditures. Further, employer businesses sampled will be asked about the following topics: Goods, Services, and Business Processes; Technology Transfer and Intellectual Property; Domestic and Foreign Transactions; and Management Practices. The 2024 ABS initial mailing is scheduled for July 2024.
Statistics from the ABS will be used by government program officials, industry organization leaders, economic and social analysts, business entrepreneurs, and domestic and foreign researchers in academia, business, and government. Estimates produced on owner demographic data may be used to assess business assistance needs, allocate available program resources, and create a framework for planning, directing, and assessing programs that promote the activities of disadvantaged groups; to assess minority-owned businesses by industry and area and to educate industry associations, corporations, and government entities; to analyze business operations in comparison to similar firms, compute market share, and assess business growth and future prospects. Estimates produced on R&D and innovation may be used to compare R&D costs across industries, determine where R&D activity is conducted geographically, and identify the types of businesses with R&D; to contribute to the Bureau of Economic Analysis (BEA) system of national accounts; to increase investments in research and development, strengthen education, and encourage entrepreneurship; and to compare business innovation in the United States to other countries, including those in the European Union. Results of the research activities data collected from nonprofit organizations will be used to report updated, valid, and reliable estimates of U.S. nonprofit R&D in National Patterns of R&D Resources and BEA's system of national accounts.
The data collected by ABS will also be incorporated into the National Science Board's biennial report, Science and Engineering Indicators (SEI). The R&D data from the nonprofit module will be reported in the Organization for Economic Cooperation and Development (OECD) periodic publications and for international comparisons of R&D efforts. NCSES also anticipates professional associations will use data from the nonprofit module. Likely users in this category include, but are not limited to, the Science Philanthropy Alliance, the Association of Independent Research Institutes, and the Health Research Alliance.
Additional examples of data use include:
• The Small Business Administration (SBA) and the Minority Business Development Agency (MBDA) to assess business assistance needs and allocate available program resources.
• Local government commissions on small and disadvantaged businesses to establish and evaluate contract procurement practices.
• Federal, state, and local government agencies as a framework for planning, directing and assessing programs that promote the activities of disadvantaged groups.
• The National Women's Business Council to assess the state of women's business ownership for policymakers, researchers, and the public at large.
• Consultants and researchers to analyze long-term economic and demographic shifts, and differences in ownership and performance among geographic areas.
• Individual business owners to analyze their operations in comparison to similar firms, compute their market share, and assess their growth and future prospects.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that Elque Ventures Private Limited (EVPL) is the successor-in-interest to Elque & Co. in the context of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from India.
Applicable January 22, 2024.
Terre Keaton Stefanova or Christopher Viers, AD/CVD Operations, Office IX, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1280 or (202) 482-0519, respectively.
On February 1, 2005, the Commerce published the order in the
On September 13, 2023, we issued a supplemental questionnaire to EVPL, to which we received a response on September 25, 2023.
The scope of this
The frozen warmwater shrimp and prawn products included in the scope of this
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this
Excluded from the scope are: (1) breaded shrimp and prawns (HTSUS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the
The products covered by this
In this CCR, pursuant to section 751(b) of the Tariff Act of 1930, as amended (the Act), Commerce conducted a successor-in-interest analysis. In making a successor-in-interest determination, Commerce examines several factors, including, but not limited to, changes in the following: (1) management; (2) production facilities; (3) supplier relationships; and (4) customer base.
In accordance with 19 CFR 351.216, we preliminarily determine that EVPL is the successor-in-interest to Elque & Co, based on the analysis of the information EVPL provided in its CCR request regarding the factors listed above.
EVPL was incorporated in 2019.
EVPL stated that it operates all of the same production facilities that Elque & Co. used to produce shrimp.
EVPL stated that there were no material changes in the raw material suppliers of Elque & Co. as a result of the restructuring. EVPL provided a list of Elque & Co.'s raw material suppliers during the three months prior to the takeover, as compared to EVPL's suppliers for the three months after the takeover.
EVPL stated that there were no material changes in the customer base of Elque & Co. as a result of the restructuring. EVPL provided a list of Elque & Co.'s shrimp customers during the three months prior to the takeover, as compared to EVPL's customers during the three months after the takeover.
Thus, record evidence, as submitted by EVPL, indicates that EVPL operates as essentially the same business entity as Elque & Co. with respect to the subject merchandise.
Pursuant to 19 CFR 351.309(c)(1)(ii), interested parties may submit case briefs to Commerce no later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.
As provided under 19 CFR 351.309(c)(2) and (d)(2), in prior proceedings we have encouraged interested parties to provide an executive summary of their brief that should be limited to five pages total, including footnotes. In this review, we instead request that interested parties provide at the beginning of their briefs a public, executive summary for each issue raised in their briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. An electronically filed hearing request must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.
Consistent with 19 CFR 351.216(e), we will issue the final results of this CCR no later than 270 days after the date on which the review was initiated, or within 45 days if all parties agree to our preliminary finding. If we continue to find that EVPL is the successor-in-interest to Elque & Co. in this CCR, we will assign EVPL the cash deposit rate currently assigned to Elque & Co. as part of the Elque Group (
We are issuing this notice in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216(b) and 351.221(b)(1).
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the City of Eagle Pass, grantee of FTZ 96, requesting authority to reorganize and expand the zone under the alternative site framework (ASF) adopted by the FTZ Board (15 CFR 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new subzones or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the FTZ Board's standard 2,000-acre activation limit for a zone. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on January 16, 2024.
FTZ 96 was approved by the FTZ Board on November 22, 1983 (Board
The current zone includes the following sites:
The grantee's proposed service area under the ASF would be Maverick County, Texas, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The application indicates that the proposed service area is within and adjacent to the Eagle Pass Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize and expand its existing zone as follows: (1) remove existing Sites 1, 2 and 4 from the zone; (2) modify Site 3 by removing and adding acreage (new site total—562.71 acres); and, (3) modified Site 3 would become a “magnet” site. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposes that modified Site 3 be so exempted.
In accordance with the FTZ Board's regulations, Camille Evans of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the FTZ Board.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary and sent to:
A copy of the application will be available for public inspection in the “Online FTZ Information Section” section of the FTZ Board's website, which is accessible via
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
Information collected as part of the application process may include but is not limited to project descriptions, project timelines, narrative justifications for incentives, applicant financial information, and relevant project environmental and workforce information.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Mid-Atlantic Fishery Management Council (Council) will hold public meetings of the Council.
The meetings will be held Tuesday, February 6 through Wednesday, February 7, 2024. For agenda details, see
This meeting will be an in-person meeting with a virtual option.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255. The Council's website,
The following items are on the agenda, although agenda items may be addressed out of order (changes will be noted on the Council's website when possible.)
Review and approve Public Hearing Document.
Committee Reports (SSC); Executive Director's Report; Organization Reports; and Liaison Reports.
Updates from the Bureau of Ocean Energy Management.
Updates from the state working group on a fisheries compensation fund administrator.
Updates from offshore wind project developers: Ørsted, Vineyard Wind, Kitty Hawk Wind, Community Offshore Wind.
Overview of recently completed Research Track stock assessment.
Review progress on joint Mid-Atlantic/New England Council action to reduce Atlantic Sturgeon interaction in the monkfish/dogfish gillnet fisheries.
Approve final packages of alternatives.
Overview of the Industry-based survey white paper.
Consider next steps.
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during these meetings. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c).
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of hybrid conference meetings of the North Pacific Fishery Management Council and its advisory committees.
The North Pacific Fishery Management Council (Council) and its advisory committees will meet in February in Seattle, WA.
The meetings will be held February 5, 2024 through February 12, 2024. The Council's Scientific and Statistical Committee (SSC) will begin at 8 a.m. in the Courtyard Ballroom on Monday, February 5, 2024, and continue through Wednesday, February 7, 2024. The Council's Advisory Panel (AP) will begin at 10:30 a.m. in the North/West room on Tuesday, February 6, 2024, and continue through Friday, February 9, 2024. The Council will begin at 8 a.m. in the Courtyard Ballroom on Thursday, February 8, 2024, and continue through Monday, February 12, 2024. All times listed are Pacific Time.
The meetings will be a hybrid conference.
Diana Evans, Council staff; email:
The SSC agenda will include the following issues:
The agenda is subject to change, and the latest version will be posted at
In addition to providing ongoing scientific advice for fishery management decisions, the SSC functions as the Council's primary peer review panel for scientific information, as described by the Magnuson-Stevens Act section 302(g)(1)(e), and the National Standard 2 guidelines (78 FR 43066). The peer-review process is also deemed to satisfy the requirements of the Information Quality Act, including the OMB Peer Review Bulletin guidelines.
The Advisory Panel agenda will include the following issues:
The Council agenda will include the following issues. The Council may take appropriate action on any of the issues identified.
You can attend the meeting online using a computer, tablet, or smart phone; or by phone only. Connection information will be posted online at:
If you are attending the meeting in-person, please refer to the COVID avoidance protocols on our website,
Public comment letters will be accepted and should be submitted electronically through the links at
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of Information Collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before March 22, 2024.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Gabrielle Aberle, National Marine Fisheries Service, P.O. Box 21668, Juneau, AK 99802-1668,
The National Marine Fisheries Service (NMFS), Alaska Regional Office, is requesting renewal of the currently approved information collection for the Commercial Operator's Annual Report (COAR).
The COAR is a State of Alaska report that is required to be completed and submitted by direct marketers, catcher processors, catcher exporters, buyer exporters, shore-based processors, and floating processor permit holders pursuant to Alaska Administrative Code (5 AAC 39.130) and Federal regulations at 50 CFR 679. Under 50 CFR 679.5(p), NMFS requires motherships and catcher processors that are issued a Federal fisheries permit to annually complete and submit the appropriate sections of the COAR.
The COAR is used to gather statewide fish and shellfish information describing buying (ex-vessel) and production (wholesale or retail) activities. The information collected in the COAR is used to determine the value of Alaska's fisheries resources and products. NMFS uses the COAR database in annual Federal publications on the value of U.S. commercial fisheries, in the annual NMFS Stock
The mothership and catcher processor data, when added to the COAR information collected from shoreside processors and stationary floating processors required under State of Alaska requirements, yield a complete data base of equivalent annual product value information for all respective processing sectors. The information also provides a consistent time series according to which groundfish resources may be managed more efficiently. Use of the information generated by the COAR is coordinated between NMFS and the Alaska Department of Fish and Game (ADF&G).
The COAR must be submitted by April 1 to the ADF&G for the previous year's activity for all operations that are required to submit a COAR. NMFS requires the owner of a mothership or catcher processor to annually complete and submit the appropriate forms of the COAR, whether the processor operated that year or not. If no receipt or production took place for that year, the owner submits only the COAR certification page.
The COAR requires submission of information on seafood purchasing, production, and both ex-vessel and wholesale values of seafood products. The buying information is reported by species, harvest area, area of purchase, condition of fisheries resources at the time of purchase, type of gear used in the harvest, pounds purchased, and ex-vessel value. The ex-vessel value includes any post-season adjustments or bonuses paid after the fish was purchased. The production information is reported by species, area of processing, process type (
The COAR may be submitted electronically through eLandings, the Interagency Electronic Reporting System (
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of public meetings.
This notice sets forth the schedule and proposed agenda of a meeting of the Ocean Research Advisory Panel (ORAP). The members will discuss issues outlined in the section on Matters to be considered.
The meeting is scheduled for February 26, 2024 from 1 p.m. to 5 p.m. Eastern Standard Time (EST). This time and the agenda topics described below are subject to change.
For the latest agenda please refer to the ORAP website:
The February 26, 2024 meeting will be virtual. The link for the webinar registration will be posted, when available, on the ORAP website:
Viviane Silva, ORAP Designated Federal Officer (DFO), SSMC3, Room 11320, 1315 East-West Hwy., Silver Spring, MD 20910; Phone Number: 240-624-0656; Email:
The Ocean Research Advisory Panel (ORAP) advises the Ocean Policy Committee (OPC) and provides independent recommendations to the Federal Government on matters of ocean policy.
Congress directed the establishment of the ORAP in Section 1055(c) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283), 10 U.S.C. 8933.
ORAP's responsibilities are (1) to advise the OPC on policies and procedures to implement the National Oceanographic Partnership Program; (2) to advise the OPC on matters relating to national oceanographic science, engineering, facilities, or resource requirements; (3) to advise the OPC on improving diversity, equity, and inclusion in the ocean sciences and related fields; (4) to advise the OPC on national ocean research priorities; and (5) any additional responsibilities that the OPC considers appropriate.
Consumer Product Safety Commission.
Request for comments on petition for rulemaking.
The Consumer Product Safety Commission (CPSC or Commission) has received a petition requesting that the Commission initiate rulemaking to mandate testing and labeling regarding the slip resistance (traction) of commercial and residential grade floor coverings, floor coatings and treatments, residential and commercial floor cleaning agents, and consumer footwear. The Commission invites written comments concerning the petition.
Submit comments by April 22, 2024.
Submit comments, identified by Docket No. CPSC-2024-0003, by any of the following methods:
Alberta E. Mills, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone: (301) 504-7479; email:
On April 11, 2023, the National Floor Safety Institute (NFSI; petitioner) requested that the Commission initiate rulemaking to mandate testing and labeling regarding the slip resistance (traction) of commercial and residential grade floor coverings, floor coatings and treatments, residential and commercial floor cleaning agents, and consumer footwear. The petitioner requests that the Commission require that:
• manufacturers of commercial and residential grade floor coverings and coatings test the slip resistance of their products in accordance with the most current version of NFSI's standard B101.3,
• manufacturers of commercial and residential grade chemical floor cleaners and treatments test the slip resistance of their products in accordance with the most current version of NFSI standard B101.2,
• manufacturers of footwear test the slip resistance of their products' outsoles in accordance with the most current version of NFSI standard B101.7,
The NFSI standards that the petitioner requests that the Commission mandate provide test methods for assessing the coefficient of friction (COF) of the listed products along with graphics to label the products as having low, moderate, or high traction, based on the COF test results.
The petitioner previously submitted similar requests for rulemaking. In 2015, the petitioner requested that the Commission initiate a rulemaking to require manufacturers of floor coverings to test and label their products in accordance with NFSI B101.5-2014,
In 2018, the petitioner submitted a similar request that the Commission initiate rulemaking to require manufacturers of floor coverings and coatings to test their products in accordance with NFSI B101.3-2012,
The Commission seeks comments concerning the present petition.
The major factors the Commission considers in deciding whether to grant or deny a petition (in pertinent part) include the following:
• whether the product presents an unreasonable risk of injury;
• whether a rule is reasonably necessary to eliminate or reduce the risk of injury; and
• whether failure of the Commission to initiate the rulemaking proceeding requested would unreasonably expose the petitioner or other consumers to the risk of injury which the petitioner alleges is presented by the product.
The petition is available at:
Wednesday, January 24, 2024—10:00 a.m.
Virtual.
Commission Meeting—Closed to the Public.
Alberta E. Mills, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, 301-504-7479 (Office) or 240-863-8938 (Cell).
Office of Finance and Operations (OFO), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a new information collection request (ICR).
Interested persons are invited to submit comments on or before February 21, 2024.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Cleveland Knight, 202-987-0064.
The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Postsecondary Education, Department of Education (Department).
Notice.
The Department announces the process for the designation of eligible institutions and invites applications for waivers of eligibility requirements for fiscal year (FY) 2024, for the programs listed in the
Jason Cottrell, Ph.D., Institutional Service, U.S. Department of Education, 400 Maryland Avenue SW, Room 5C122, Washington, DC 20202. Telephone: (202) 453-7530 or (202) 262-1833. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The Department announces the process for the designation of eligible institutions and invites applications for waivers of eligibility requirements for FY 2024 for the following programs:
1.
2.
3.
4.
Under the programs discussed above, institutions are eligible to apply for grants if they meet specific statutory and regulatory eligibility requirements. An institution of higher education that is designated as an eligible institution may also receive a waiver of certain non-Federal cost-sharing requirements for one year under the Federal Supplemental Educational Opportunity Grant (FSEOG) program authorized by title IV, part A of the HEA and the Federal Work-Study (FWS) program authorized by section 443 of the HEA. Qualified (eligible) institutions may receive the FSEOG and FWS waivers for one year even if they do not receive a grant under a title III or V grant program. An applicant that receives a grant from the Student Support Services (SSS) program that is authorized under section 402D of the HEA, 20 U.S.C. 1070a-14, may receive a waiver of the required non-Federal cost share for institutions for the duration of the grant. An applicant that receives a grant from the Undergraduate International Studies and Foreign Language (UISFL) program that is authorized under section 604 of the HEA, 20 U.S.C. 1124, may receive a waiver or reduction of the required non-Federal cost share for institutions for the duration of the grant.
Sections 312, 502, and 512 of the HEA, 34 CFR 607.2-607.5, and 34 CFR 606.2-606.5 include many of the basic eligibility requirements for grant programs authorized under titles III and V of the HEA. Sections 312(b)(1)(B) and 502(a)(2)(A) of the HEA provide that, to be eligible for these programs, an institution of higher education's average “educational and general expenditures” (E&G) per full-time equivalent (FTE) undergraduate student must be less than the average E&G expenditures per FTE undergraduate student of institutions that offer similar instruction (public 2-year, public 4-year, private 2-year, and private 4-year) in that year.
The National Center for Education Statistics (NCES) calculates Core Expenses per FTE of institutions, a statistic like E&G per FTE. Both E&G per FTE and Core Expenses per FTE are based on regular operational expenditures of institutions (excluding auxiliary enterprises, independent operations, and hospital expenses). They differ only in that E&G per FTE is based on fall undergraduate enrollment, while Core Expenses per FTE is based on 12-month undergraduate enrollment for the academic year.
To avoid inconsistency in the data submitted to, and produced by, the Department, for the purpose of sections 312(b)(1)(B) and 502(a)(2)(A) of the HEA, E&G per FTE is calculated using the same methodology as Core Expenses per FTE. Accordingly, the Department will apply the NCES methodology for calculating Core Expenses per FTE. Institutions requesting an eligibility exemption determination must use the Core Expenses per FTE data reported to NCES' Integrated Postsecondary Education Data System (IPEDS) for the most currently available academic year, in this case academic year 2021-2022.
Each institution interested in either applying for a new grant under the titles III or V programs addressed in this notice, or requesting a waiver of the title IV non-Federal cost share, must be designated as an eligible institution in FY 2024.
The eligibility requirements for the title V HSI program are in part A of title V of the HEA and in 34 CFR 606.2-606.5. The regulations may be accessed at
The requirements for the PPOHA program are in part B of title V of the HEA and in the notice of final requirements published in the
The Department has instituted a process known as the Eligibility Matrix (EM), under which we use information institutions submitted to IPEDS to determine which institutions meet the basic eligibility requirements for the programs authorized by title III or V of the HEA listed above. The data are utilized in the Department's eligibility system to calculate and determine which institutions meet the eligibility requirements. To make eligibility determinations for FY 2024, we use an institution's 2021-2022 enrollment and fiscal data. Beginning January 22, 2024, an institution will be able to review the Department's eligibility decision by checking the eligibility system linked through the Department's Institutional Service Eligibility website:
During the application period, the EM can be reviewed within the eligibility system (
To check your institution's eligibility, go to
If the system does not show that your institution is eligible for a program you can apply for a waiver or reconsideration using the process described in this notice. The application process mirrors that used in previous years. You will first complete an application on the website at
Once all waiver decisions are made, the data from the eligibility system will be used to build a final EM that will be published on the Department's eligibility website
Please note that through this process, the Department does not certify, nor designate, an institution a Minority-Serving Institution or Hispanic-Serving Institution. This eligibility determination relates only to the institution's ability to apply for grants under certain titles III and V grant programs, as discussed in this notice.
As to the enrollment of needy students, for programs under titles III and V (excluding the PBI programs), an institution is considered to have an enrollment of needy students if it meets either of the following two criteria: (1) at least 50 percent of its degree-seeking students received financial assistance under the Federal Pell Grant, FSEOG, or FWS programs; or (2) the percentage of its undergraduate degree-seeking students who were enrolled on at least a half-time basis and received Federal Pell Grants exceeded the median percentage of undergraduate degree students who were enrolled on at least a half-time basis and received Federal Pell Grants at comparable institutions that offer similar instruction.
To qualify under the second criterion, an institution's Federal Pell Grant percentage for base year 2021-2022 must be more than the median for its category of comparable institutions provided in the 2021-2022 Median Pell Grant and Average Core Expenses per FTE Student Table in this notice. If your institution qualifies only under the first criterion, you must submit an application containing the data necessary to satisfy the first criterion (showing at least 50 percent of your degree-seeking students received financial assistance under one of several Federal student aid programs (the Federal Pell Grant, FSEOG, or FWS programs)), since these data are not available in IPEDS.
“Enrollment of Needy Students” for purposes of the Part A PBI program is separately defined in section 318(b)(2) of the HEA, and for purposes of the Part F PBI program is defined in section 371(c)(3) of the HEA.
Core Expenses are defined as the total expenses for the essential education activities of the institution. Core Expenses for public institutions reporting under the Governmental Accounting Standards Board (GASB) requirements include expenses for instruction, research, public service, academic support, student services, institutional support, operation and maintenance of plant, depreciation, scholarships and fellowships, interest, and other operating and non-operating expenses. Core Expenses for institutions reporting under the Financial Accounting Standards Board (FASB) standards (primarily private, not-for-profit, and for-profit institutions) include expenses for instruction, research, public service, academic support, student services, institutional support, net grant aid to students, and other expenses. Core Expenses do not include Federal student aid for the purposes of eligibility. For both FASB and GASB institutions, Core Expenses do not include expenses for auxiliary enterprises (
The following table identifies base year 2021-2022 median Federal Pell Grant percentages and average Core Expenses per FTE student for the four categories of comparable institutions:
Institutions requesting a waiver of the needy student enrollment requirement or the Core Expenses per FTE requirement must include in their application detailed evidence supporting the waiver request, as described in the instructions for completing the application.
The regulations governing the Secretary's authority to grant a waiver of the needy student requirement refer to “low-income” students or families, at 34 CFR 606.3(b)(2) and (3) and 607.3(b)(2) and (3). The regulations at 34 CFR 606.3(c) and 607.3(c) define “low-income” as an amount that does not exceed 150 percent of the amount equal to the poverty level, as established by the U.S. Census Bureau.
For purposes of this waiver provision, the following table sets forth the low-income levels (at 150 percent) for various family sizes:
The figures shown under family income represent amounts equal to 150 percent of the family income levels established by the U.S. Census Bureau for determining poverty status. The poverty guidelines were published on January 21, 2022, in the
Information about “metropolitan statistical areas” referenced in 34 CFR 606.3(b)(4) and 607.3(b)(4) may be obtained at:
Please send this statement to the person listed in the
If you submit a paper application, you must mail your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Attention: Jason Cottrell, 400 Maryland Avenue SW, Room 5C122, Washington, DC 20202.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
We will not consider applications postmarked after the application deadline date.
You may also access documents of the Department published in the
Environmental Protection Agency (EPA).
Notice of proposed consent decree; request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or “the Act”), the Environmental Protection Agency (“EPA” or “the Agency”) is providing notice of a proposed consent decree in
Written comments on the proposed consent decree must be received by February 21, 2024.
Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0015, online at
Yasmín Pérez Ortiz, Air and Radiation Law Office, Office of General Counsel, U.S. Environmental Protection Agency; telephone: (202) 564-1077; email address:
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2024-0015) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
The electronic version of the public docket for this action contains a copy of the proposed consent decree, and is available through
Plaintiffs filed a complaint in the United States District Court for the Northern District of California alleging that EPA failed to perform its nondiscretionary duty under CAA section 110(k)(2) to approve, disapprove, or conditionally approve, in whole or in part SCAQMD Rule 2305, within 12 months of a determination of completeness by EPA or a submittal being deemed complete by operation of law. On February 13, 2022, the SCAQMD Rule 2305 submittal was deemed complete by operation of law and EPA had a mandatory duty to take final action on the SIP submittal by February 13, 2023.
Under the terms of the proposed consent decree, no later than July 17, 2024, the Administrator would be required to sign a notice of final rulemaking to approve, disapprove, conditionally approve, or approve in part and disapprove in part, the SIP submittal from California entitled South Coast Air Quality Management District Rule 2305, Warehouse Indirect Source Rule—Warehouse Actions and Investments to Reduce Emissions Program. For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed consent decree. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act.
Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2024-0015, via
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
Environmental Protection Agency (EPA).
Notice.
The Toxic Substances Control Act (TSCA) requires EPA to publish in the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2023-0098, is available online at
This action provides information that is directed to the public in general.
This document lists the statements of findings made by EPA after review of submissions under TSCA section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. This document presents statements of findings made by EPA during the reporting period.
TSCA section 5(a)(3) requires EPA to review a submission under TSCA section 5(a) and make one of several specific findings pertaining to whether the substance may present unreasonable risk of injury to health or the environment. Among those potential findings is that the chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment per TSCA Section 5(a)(3)(C).
TSCA section 5(g) requires EPA to publish in the
Anyone who plans to manufacture (which includes import) a new chemical substance for a non-exempt commercial purpose and any manufacturer or processor wishing to engage in a use of a chemical substance designated by EPA as a significant new use must submit a notice to EPA at least 90 days before commencing manufacture of the new chemical substance or before engaging in the significant new use.
The submitter of a notice to EPA for which EPA has made a finding of “not likely to present an unreasonable risk of
No.
In this unit, EPA provides the following information (to the extent that such information is not claimed as Confidential Business Information (CBI)) on the PMNs, MCANs and SNUNs for which, during this period, EPA has made findings under TSCA section 5(a)(3)(C) that the new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment:
The following list provides the EPA case number assigned to the TSCA section 5(a) submission and the chemical identity (generic name if the specific name is claimed as CBI).
• P-23-0077, Alkanepolyoxy acid, alkyl substituted (Generic Name).
To access EPA's decision document describing the basis of the “not likely to present an unreasonable risk” finding made by EPA under TSCA section 5(a)(3)(C), look up the specific case number at
Environmental Protection Agency.
Notice and request for public comment.
In accordance with the Solid Waste Disposal Act, as amended (commonly referred to as RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), notice is hereby given by the U.S. Environmental Protection Agency (“EPA”), Region 2, of a proposed settlement agreement (“Settlement”) pursuant to RCRA and CERCLA with St. Croix Petrochemical Corporation (“SCPC”) (“Settling Party”) related to the former SCPC manufacturing facility that operated in the past on a portion of the former HOVENSA refinery (“SCPC Facility”) in St. Croix, United States Virgin Islands (“USVI”).
Comments must be submitted on or before February 21, 2024.
Ricardito Vargas, Land and Redevelopment Programs Branch, Region 2, U.S. Environmental Protection Agency, 290 Broadway, 25th Floor, New York, NY 10007-1866. Email:
This Settlement would resolve the liability of SCPC for soil and groundwater contamination related to its former para-xylene manufacturing facility, a 20-acre portion of the former HOVENSA refinery in St. Croix. This Settlement would be contemporaneously finalized and become effective with a companion settlement between SCPC and the Hovensa Environmental Response Trust (“ERT”). The ERT was established during the HOVENSA, LLC bankruptcy proceedings, to, among other things, implement RCRA corrective measures at the former HOVENSA facility. Under both settlement agreements, SCPC would transfer its remaining assets of approximately $1.7 million to the ERT to help fund remediation of contamination caused by SCPC at the former HOVENSA facility. This payment would be made within 60 days of the Effective Date of the Settlement. The Settlement includes a covenant by EPA not to sue SCPC under sections 3013 and 7003 of RCRA and sections 106 and 107(a) of CERCLA regarding the SCPC Facility, contingent upon SCPC transferring its remaining assets to the ERT. For thirty (30) days following the date of publication of this notice, EPA will receive written comments relating to the Settlement. EPA and the United States Department of Justice will consider all comments received and may modify or withdraw consent to the Settlement if comments received disclose facts or considerations that indicate that the proposed Settlement is inappropriate, improper, or inadequate. The response to any comments can be viewed online at
Federal Communications Commission.
Notice.
The agency must receive comments on or before March 22, 2024.
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
Rolanda F. Smith, 202-418-2054,
The following applicants filed AM or FM proposals to change the community of license: EAST TEXAS COMMUNITY BROADCASTING, KKJX(FM), FAC. ID NO. 767072, FROM: JACKSONVILLE, TX, TO: MAYDELLE, TX, FILE NO. 0000224170; M. KENT FRANDSEN, KUNY(FM), FAC. ID NO. 762385, FROM: PARAGONAH, UT, TO: ENOCH,
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its obligations under the Paperwork Reduction Act of 1995, invites the general public and other Federal agencies to take this opportunity to comment on the request to renew the existing information collections described below (OMB Control No. 3064-0085; -0149; -0194). The notices of the proposed renewal for these information collections were previously published in the
Comments must be submitted on or before February 21, 2024.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Manny Cabeza, Regulatory Counsel, 202-898-3767,
Proposal to renew the following currently approved collection of information:
1.
The information collection is being revised to include 10 new information collection requirements created by subpart B, (sections 1002.101-1002.114),
2.
3.
The FDIC is increasing the total burden associated with this collection from 5 hours to 165 hours. The estimate for the number of respondents has increased from 10 to 66. The responses per respondent is unchanged from the 2021 submission. The estimate for hours per response represents a 1.5-hour increase from the 2021 submission. This increase is due to a change in calculation methodology.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Thursday, January 25, 2024, at 10:00 a.m.
Hybrid Meeting: 1050 First Street NE, Washington, DC (12th Floor) and virtual.
for those attending the meeting in person, current COVID-19 safety protocols for visitors, which are based on the CDC COVID-19 hospital admission level in Washington, DC will be updated on the commission's contact page by the Monday before the meeting. See the contact page at
This meeting will be open to the public, subject to the above-referenced guidance regarding the COVID-19 hospital admission level and corresponding health and safety procedures. To access the meeting virtually, go to the commission's website
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Individuals who plan to attend in person and who require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Laura E. Sinram, Secretary and Clerk, at (202) 694-1040 or
January 23, 2024 at 10:00 a.m. EST.
Telephonic. Dial-in (listen only) information: Number: 1-202-599-1426, Code: 472 801 767#; or via web:
Kimberly Weaver, Director, Office of External Affairs, (202) 942-1640.
Federal Trade Commission.
Annual notice of revision.
The Federal Trade Commission announces the revised thresholds for interlocking directorates required by the 1990 amendment of Section 8 of the Clayton Act.
January 22, 2024.
Christopher M. Grengs (202-326-2612), Bureau of Competition, Office of Policy and Coordination.
Section 8 of the Clayton Act prohibits, with certain exceptions, one person from serving as a director or officer of two competing corporations if two thresholds are met. Competitor corporations are covered by Section 8 if each one has capital, surplus, and undivided profits aggregating more than $10,000,000, with the exception that no corporation is covered if the competitive sales of either corporation are less than $1,000,000. Section 8(a)(5) requires the Federal Trade Commission to revise those thresholds annually, based on the change in gross national product. The new thresholds, which take effect immediately, are $48,559,000 for Section 8(a)(1), and $4,855,900 for Section 8(a)(2)(A).
Office of Acquisition Policy, General Services Administration (GSA).
Notice of request for comments regarding an extension to an existing OMB information collection.
Under the provisions of the Paperwork Reduction Act of 1995, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve a renewal of the currently approved information collection requirement regarding implementation of GSA information technology security requirements.
Submit comments on or before February 21, 2024.
Written comments and recommendations for this information collection should be sent within 30 days of publication of this notice to
Mr. Stephen Carroll, Procurement Analyst, at
General Services Acquisition Regulations (GSAR) requires that contractors accessing information systems that support the operations and assets of GSA, another agency, contractor, or other source, to comply with GSA's IT security policies including GSA IT's security policies outlined in CIO 09-48, IT Security Procedural Guide: Security and Privacy IT Acquisition Requirements and CIO 12-2018, IT Policy Requirements Guide.
A 60-day notice was published in the
Office of Child Care; Administration for Children and Families; Health and Human Services.
Request for public comments.
The Administration for Children and Families (ACF) is requesting an extension without changes of the form ACF-118: Child Care and Development Fund Plan Preprint for States/Territories for FFY 2022-2024 (OMB #0970-0114, expiration 02/29/2024), and a separate three-year extension of the form ACF-118: Child Care and Development Fund Plan Preprint for States/Territories for FFY 2025-2027. There are changes requested to the form ACF-118: Child Care and Development Fund Plan Preprint for States/Territories for FFY 2025-2027 to improve formatting, collect additional information about program implementation, and streamline questions.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
At this time, the ACF Office of Child Care (OCC) is proposing an extension of the approval of the currently approved CCDF Plan Preprint for FFY 2022-2024 to allow states and territories to continue to submit amendments for substantial program changes effective through September 30, 2024, as required. There are no changes proposed to the FFY 2022-2024 Plan Preprint. In addition, OCC is requesting comments on the proposed CCDF Plan Preprint for FFY 2025-2027. Updates were made to clarify questions, enhance the ability to align data with OCC monitoring data, reflect OCC priorities, ensure alignment with federal requirements, and facilitate grantee submission in the Child Care Automated Reporting System (CARS) data system.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the approval of a product redeeming a material threat medical countermeasure (MCM) priority review voucher. The Federal Food, Drug, and Cosmetic Act (FD&C Act) authorizes FDA to award priority review vouchers to sponsors of approved material threat MCM product applications that meet certain criteria. FDA is required to publish notice of the issuance of material threat MCM priority review vouchers as well as the approval of products redeeming a voucher. FDA has determined that QULIPTA (atogepant) tablets, approved September 28, 2021, meets the redemption criteria.
Cathryn Lee, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-1394, email:
Under section 565A of the FD&C Act (21 U.S.C. 360bbb-4a), FDA will report the issuance of material threat MCM priority review vouchers and the approval of products for which a voucher was redeemed. FDA has determined that the application for QULIPTA (atogepant) tablets, approved September 28, 2021, meets the redemption criteria.
For further information about the material threat MCM Priority Review Voucher Program and for a link to the full text of section 565A of the FD&C Act, go to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by March 22, 2024.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-976-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection helps support FDA regulations. Specifically, the Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the Prescription Drug Marketing Act of 1987 (Pub. L. 100-293) (PDMA) and Prescription Drug Amendments of 1992, establishes requirements for the: (1) reimportation and wholesale distribution of prescription drugs; (2) sale, purchase, or trade of, or the offer to sell, purchase, or trade, prescription drugs that were purchased by hospitals or healthcare entities or donated to charitable organizations; and (3) distribution of prescription drug samples. Because insufficient safeguards existed over the drug distribution system to prevent the introduction and retail sale of substandard, ineffective, or counterfeit drugs, and that a wholesale drug diversion submarket had developed that prevented effective control over the true sources of drugs, PDMA was enacted. PDMA is intended to ensure that drug products purchased by consumers are safe and effective and to avoid an unacceptable risk that counterfeit, adulterated, misbranded, subpotent, or expired drugs are sold. Requirements under PDMA are codified at part 203 (21 CFR part 203), Prescription Drug Marketing.
The regulations in part 203 include reporting and recordkeeping requirements intended to help achieve the following goals to: (1) ban the reimportation of prescription drugs produced in the United States, except when reimported by the manufacturer or under FDA authorization for emergency medical care; (2) ban the sale, purchase, or trade, or the offer to sell, purchase, or trade, of any prescription drug sample; (3) limit the distribution of drug samples to practitioners licensed or authorized to prescribe such drugs or to pharmacies of hospitals or other healthcare entities at the request of a licensed or authorized practitioner; (4) require licensed or authorized practitioners to request prescription drug samples in writing; (5) mandate storage, handling, and recordkeeping requirements for prescription drug samples; and (6) prohibit, with certain exceptions, the sale, purchase, or trade, or the offer to sell, purchase, or trade, of prescription drugs that were purchased by hospitals or other healthcare entities or that were donated or supplied at a reduced price to a charitable organization.
We estimate the burden of this collection of information as follows:
Based on a review of Agency data, since our last request for OMB approval, we have adjusted our estimate of 1 burden to reflect an increase of 6,492,354 responses and 516,028 hours annually. The estimates in table 1 (a decrease of 19,700 responses and 4,928 hours since the last OMB approval) reflect an assessment of the volume of loss/theft/falsification reports received by the Agency under § 203.37 over the past 18 months. While the requirements have not changed, we believe this more accurately reflects the number of reports estimated to be submitted to FDA under this section. Our adjustments to table 2 are attributable to a more accurate reflection of the number of drug sample requests received by manufacturers and authorized distributors of record. The PDMA does not require manufacturers and distributors to report the number of drug sample requests they receive to FDA. However, section 6004 of the Patient Protection and Affordable Care Act (Pub. L. 111-148) requires that manufacturers and authorized distributors submit to FDA annually the identity and quantity of drug samples requested, among other information.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) announces a forthcoming public advisory committee meeting of the Circulatory System Devices Panel of the Medical Devices Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public.
The meeting will take place virtually on February 13, 2024, from 9 a.m. to 6 p.m. Eastern Time.
All meeting participants will be heard, viewed, captioned, and recorded for this advisory committee meeting via an online teleconferencing and/or video conferencing platform. Answers to commonly asked questions, including information regarding special accommodations due to a disability, may be accessed at:
Akinola Awojope, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg., 66, Rm. 5214, Silver Spring, MD 20993-0002,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available on FDA's website at the time of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material and the link to the online teleconference meeting room will be available at
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact AnnMarie Williams at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2). This meeting notice also serves as notice that, pursuant to 21 CFR 10.19, the requirements in 21 CFR 14.22(b), (f), and (g) relating to the location of advisory committee meetings are hereby waived to allow for this meeting to take place using an online meeting platform. This waiver is in the interest of allowing greater transparency and opportunities for public participation, in addition to convenience for advisory committee members, speakers, and guest speakers. The conditions for issuance of a waiver under 21 CFR 10.19 are met.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, Mechanisms of Fusion-Driven Oncogenesis in Childhood Cancers and Next Generation Chemistry Centers for Fusion Oncoproteins, March 29, 2024, 09:00 a.m. to March 29, 2024, 05:00 p.m., National Cancer Institute Shady Grove, 9609 Medical Center Drive, Room 7W260, Rockville, Maryland, 20850 which was published in the
This notice is being amended to change the meeting date from March 29, 2024 to March 27, 2024. The meeting time and location will remain the same. The meeting is closed to the public.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Institute of Dental and Craniofacial Research Special Emphasis Panel Developing Salivary Components as Therapeutics for Oral Health, March 7, 2024, 12:30 p.m. to March 7, 2024, 5 p.m., National Institute of Dental and Craniofacial Research, 6701 Democracy Blvd., Bethesda, MD 20817 which was published in the
The meeting time has changed from 12:30 p.m. to 5 p.m. to 10:30 a.m. to 5 p.m. The date of the meeting and the location remain the same. The meeting is closed to the public.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material,
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities.
Each LOMR was finalized as in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Department of Homeland Security, Federal Emergency Management Agency
Notice of a new matching program.
The Department of Homeland Security, Federal Emergency Management Agency (FEMA) and the United States Small Business Administration (SBA), pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act may not provide duplicative disaster assistance to individuals, businesses, including Private-Not-for Profits (PNPs), or other entities for the same disaster or emergency losses. DHS/FEMA and SBA will participate in a Computer Matching program to share federal records regarding financial/benefits award decisions of individuals, businesses, and/or other entities to verify eligibility for benefits, prevent duplicative aid from being provided in response to the same disaster or emergency, and recover aid when duplication of benefits is identified. This proposed Agreement re-establishes the Computer Matching program between DHS/FEMA and SBA that is set to expire on March 2, 2024.
This Agreement will take effect 30 days from the date copies of this signed Agreement are sent to both Houses of Congress and OMB, or thirty (30) days from the date the Computer Matching Notice is published in the
You may submit comments on this proposed matching program, identified by docket number DHS-
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To obtain additional information about this matching program and the contents of this Computer Matching Agreement between DHS-FEMA and SBA, please view this Computer Matching Agreement at the following website:
The Agreement between SBA and DHS/FEMA is expected to aid in the reduction of Duplication of Benefits (DOB) payments to survivors of major disaster declarations. This will be accomplished by matching specific FEMA disaster applicant data with SBA disaster loan application and decision data for a declared disaster, as set forth in the Agreement. Prior to the use of this computer match, SBA loan officers used stand-alone Personal Computers to access FEMA's computer system, National Emergency Management Information System-Individual Assistance (NEMIS-IA) and matched records manually. SBA and DHS/FEMA are dual source and recipient agencies in this matching program. DHS/FEMA provides this notice in accordance with the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503) and the Computer Matching and Privacy Protection Amendments of 1990 (Pub. L. 101-508) (Privacy Act); Office of Management and Budget (OMB) Final Guidance Interpreting the Provisions of Pub. L. 100-503, the Computer Matching and Privacy Protection Act of 1988, 54 FR 25818 (June 19, 1989); and OMB Circular A-108, 81 FR 94424 (December 23, 2016). This proposed Agreement re-establishes the Computer Matching program between DHS/FEMA and SBA that is set to expire on March 2, 2024.
The notice for that agreement can be found here in the
DHS/FEMA and SBA.
Robert T. Stafford Disaster Relief and Emergency Assistance Act (Pub. L. 93-288), as amended at 42 U.S.C. 5121
The Debt Collection Improvement Act of 1996, 31 U.S.C. 3325(d) and 7701(c)(1).
Section 121 of the Immigration Reform and Control Act (IRCA) of 1986, Pub. L. 99-603, as amended by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. 104-193, 110 Stat. 2168 (1996), requires DHS to establish a system for the verification of immigration status of noncitizen applicants for, or recipients of, certain types of benefits as specified within IRCA, and to make this system available to state agencies that administer such benefits.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 State. 3009 (1996) grants federal, state, or local government agencies seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency with the authority to request such information from DHS-U.S. Citizenship and Immigration Services for any purpose authorized by law.
DHS/FEMA and SBA may not provide duplicative disaster assistance to individuals, businesses, including Private-Not-for Profits (PNPs), or other entities for the same disaster or emergency losses. DHS/FEMA and SBA will participate in a Computer Matching program to share federal records related to financial/benefits award decisions of individuals, businesses, and/or other entities to verify eligibility for benefits, prevent duplicative aid from being provided in response to the same disaster or emergency, and recover aid when duplication of benefits is identified.
Individuals and households who apply for FEMA disaster assistance following a Presidentially declared major disaster or emergency.
The three types of match processes, for initial registration, duplication of benefits, and status updates, are described below.
1. DHS/FEMA—SBA Automated Import/Export Process for Initial Registrations:
a. SBA is the recipient (
b. DHS/FEMA will provide SBA the data elements identified in the current NEMIS-IA Disaster Assistance Improvement Program (DAIP) Interface Control Document (ICD), which includes but is not limited to the following information: Applicant's personally identifiable information (PII), which includes: FEMA Registration ID Number, name, address, social security number, and date of birth; damaged property information; insurance policy data; property occupant data; vehicle registration data; and flood zone and flood insurance data.
c. SBA will conduct the match against the Disaster Loans Case Files system of records (SBA 20) via Disaster Lending System using the FEMA Disaster ID number, FEMA Registration ID number, Product (Home/Business), and Registration Occupant Social Security number (SSN) to create a New Pre-Application. The records SBA receives are of DHS/FEMA applicants who are referred to SBA for disaster loan assistance. Controls on the DHS/FEMA export of data are in place to ensure that SBA only receives unique and valid referral records.
d. When SBA matches its records to those provided by DHS/FEMA, two types of matches are possible: a full match and a partial match. A full match exists when an SBA record matches a DHS/FEMA record on each of the following data fields: FEMA Disaster ID number, FEMA Registration ID number, Product (Home/Business), and Registration Occupant SSN. A partial match exists when an SBA record matches a DHS/FEMA record on one or more, but not all data fields listed above. If an exact (full) match is found among SBA records for the current imported record, the current record is automatically marked as a duplicate by the system with appropriate comments inserted to indicate the corresponding record that matched. If a partial match is found during the import process, the record is routed for manual examination, investigation, and resolution to determine whether it is truly a duplicate record.
2. DHS/FEMA-SBA Duplication of Benefits Automated Match Process:
a. Both DHS/FEMA and SBA will act as the recipient (
b. DHS/FEMA will return the following fields for the matching DHS/FEMA record, if any: FEMA Disaster Number; FEMA Registration ID number; applicant and if applicable, co-applicant name; damaged dwelling address; phone number; SSN; damaged property data; insurance policy information; contact address (if different from damaged dwelling address); flood zone and flood insurance data; FEMA Housing Assistance and Other Needs Assistance data; program, award level, eligibility, inspection data; verification of ownership and occupancy; and approval or rejection data. DHS/FEMA will return no result when the FEMA Registration ID number is not matched.
c. For each matching record received from DHS/FEMA, SBA determines whether DHS/FEMA assistance duplicates SBA loan assistance. If SBA loan officers determine that there is a duplication of benefits, the duplicated amount is deducted from the eligible SBA loan amount.
3. DHS/FEMA-SBA Status Update Automated Match Process:
a. DHS/FEMA will act as the recipient (
b. SBA will provide to DHS/FEMA information and data, including but not limited to the following: personal information about SBA applicants, including name, damaged dwelling address, and SSN; application data; loss to personal property data; loss mitigation data; SBA loan data; and SBA event data. DHS/FEMA will conduct the match using FEMA Disaster Number and FEMA Registration ID number.
c. Loan data for matched records will be recorded and displayed in NEMIS-IA. Loan data will also be run through NEMIS-IA business rules; potentially duplicative categories of assistance are sent to FEMA's Program Review process for manual evaluation of any duplication of benefits. If FEMA review staff determines that there is a duplication of benefits, the duplicated amount is deducted from the e1igible award. FEMA applicants receive a letter (hardcopy or electronic) that indicates the amount of their eligible award and their ability to appeal.
DHS/FEMA-008 Disaster Recovery Assistance Files (87 FR 7852, February 10, 2022) accesses records from its Disaster Recovery Assistance Files system of records, as provided by the DHS/FEMA—008 SORN, through its NEMIS-IA system, and matches them to the records that SBA provides from its SBA-20 Disaster Loans Case Files, 86 FR 64979 (November 19, 2021) system of records, as amended. SBA 20 Disaster Loans Case Files (86 FR 64979, November 19, 2021) uses its Disaster Lending System to access records from its Disaster Loan Case Files system of records and match them to the records that DHS/FEMA provides from its Disaster Recovery Assistance Files system of records.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This notice governs Community Development Block Grant disaster recovery (CDBG-DR) and Community Development Block Grant National Disaster Resilience (CDBG-NDR) funds awarded under several appropriations acts identified in the Table of Contents. Specifically, this notice provides waivers and establishes alternative requirements for certain CDBG-DR and CDBG-NDR grantees that have submitted requests for waivers and alternative requirements for grants provided under the public laws cited in this notice.
Tennille Parker, Director, Office of Disaster Recovery, U.S. Department of
Each of the appropriations acts cited in the Table of Contents authorize the Secretary to waive, or specify alternative requirements for, any provision of any statute or regulation that the Secretary administers in connection with the obligation by the Secretary, or use by the recipient, of grant funds, except for requirements related to fair housing, nondiscrimination, labor standards, and the environment. HUD may also exercise its regulatory waiver authority under 24 CFR 5.110, 91.600, and 570.5.
All waivers and alternative requirements authorized in this notice are based upon a determination by the Secretary that good cause exists and that the waiver or alternative requirement is not inconsistent with the overall purposes of title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301
The
The State is using its CDBG-NDR funds to support the voluntary resettlement of current and former residents of the flood-prone Isle de Jean Charles to a new and more resilient inland community (the “IDJC Resettlement Project”). In 1955, Isle de Jean Charles was a 22,400-acre island. At the time of the CDBG-NDR award, IDJC had lost 98 percent of its land due to subsidence, with only 320 acres remaining. The goals of the IDJC Resettlement Project are to move residents out of harm's way, to engage the Isle de Jean Charles community residents in the design of the new community, to identify means by which the new community can be financially sustainable, and to safeguard the preservation and continuity of IDJC's diverse cultural identities and traditions.
In the
II.A.1.
The resettlement of the Isle de Jean Charles community and the development of the more resilient New Isle community is a unique effort by the State of Louisiana to demonstrate, with the support of CDBG-NDR funds, how communities nationwide may implement the voluntary resettlement of a community with diverse cultural identities and traditions, when confronted with repetitive disaster-related losses of land mass due to climate change. The IDJC Resettlement Project has the potential to serve as a model for other communities seeking to manage the retreat and resettlement of communities threatened by climate change.
Almost every IDJC household qualifies as low- or moderate-income, many are elderly and on fixed incomes, and nearly all will face increased overall expenses in relocating from IDJC. The State has therefore requested the following waivers and alternative requirements to address the challenges related to the eligibility and carrying out of activities, meeting of a national objective within the approved period of performance, and use of program income for the IDJC Resettlement Project.
The Department finds that there is good cause for the waivers and alternative requirements in this section because they are necessary to facilitate the IDJC Resettlement Project, which HUD anticipates will serve as a model for communities pursuing the resettlement of low- and moderate-income residents to lower-risk areas, and further the State's recovery goal of a holistic approach to resettlement of a diverse and culturally rich community.
II.A.2.
In rare instances, when necessary to achieve recovery goals, HUD has previously granted waivers and alternative requirements to allow a grantee to treat a large complex project with multiple components that contribute to long-term recovery and resilience as a single eligible activity. HUD has determined that the components of the IDJC Resettlement Project are largely eligible CDBG-NDR activities but that the complexity of managing multiple separate eligible activities as components of the overall relocation would detrimentally delay the timeline of this critical recovery project. Therefore, based on the good cause determination described in paragraph II.A.1. and to further facilitate an efficient implementation of the IDJC Resettlement Project, HUD is waiving section 105(a) of the HCDA (42 U.S.C. 5305(a)), as amended, to the extent
The State indicated that one of the new activities of the IDJC Resettlement Project eligible activity will be the establishment of the Fund. The State plans to use CDBG-NDR funds, CDBG-NDR program income generated by economic development activities at New Isle, and other sources to capitalize the Fund. The State indicated that the Fund will be used to assist New Isle homeowners with certain monthly costs (
Accordingly, under the waiver provided above to establish the IDJC Resettlement Project as a single new eligible CDBG-NDR activity, the State may use CDBG-NDR funds and program income to assist low and moderate-income New Isle residents relocated from the IDJC community with allowable housing costs for up to five years, meaning no beneficiary may receive more than a total of 5 years of this type of assistance or up to a specific amount, as determined by the State, to maintain the stability and affordability of New Isle and resettlement of relocated IDJC residents. HUD is also establishing an alternative requirement that no assistance shall be provided for this purpose until the State submits a substantial action plan amendment for its CDBG-NDR grant. The substantial action plan amendment must include the following:
1. A budget for the Fund,
2. Identify eligible costs under the Fund,
3. Describe how identified costs are allowable in accordance with 2 CFR part 200, subpart E,
4. Describe the criteria that will be used to select beneficiaries and determine the amount of assistance under the Fund,
5. The mechanisms and process to provide the assistance,
6. How the State will oversee and monitor the administration and use of the Fund, and
7. How the State will ensure public transparency regarding the provision of assistance and use of the Fund.
Additionally, CDBG-NDR funds and program income, including any portion used to finance the Fund, shall not be used to compensate beneficiaries for losses from disaster-related impacts.
Finally, as an alternative requirement, and in addition to all other modifications which constitute a substantial amendment requiring HUD approval as described in the
II.A.3.
The additional regulatory waivers and alternative requirements provided in this section enable the State to accomplish its goals for the IDJC Resettlement Project. The IDJC Resettlement Project aims to foster the growth of the New Isle's residents and address their housing, economic, and service needs. The IDJC Resettlement Project is not merely replacing the relocated households' homes, but is also carrying out acquisition, infrastructure, housing, economic development, and public service activities intended to create a sustainable, long-term community for these relocated residents. For these reasons and based on the good cause provided in paragraph II.A.1., the Department waives the criteria in 24 CFR 570.483(b) for the IDJC Resettlement Project eligible activity only and establishes the following alternative requirement for the criteria as a means of addressing the objective of benefitting low- and moderate-income (LMI) persons. To demonstrate that the IDJC Resettlement Project eligible activity addresses the objective of benefitting LMI persons, the State must meet all the applicable criteria described below:
1. The State must determine the actual service area benefiting from the IDJC Resettlement Project, in accordance with the regulations. The service area must be primarily residential in character with related cultural and recreational components (
2. The State must complete the housing units for occupancy by the households that are part of the original IDJC resettlement (at least 34 units of housing) and document that at least 70 percent of those households qualify as LMI;
3. The State must complete the community center, marketplace, recreational facilities, parks, and additional site improvements, as described in its approved action plan, as part of the New Isle community;
4. That State must require its Partners (as defined in the National Disaster Resilience Competition Phase 2 Notice of Funding Availability) and subrecipients to document that any economic development activities funded through the IDJC Resettlement Project are complete and will increase economic opportunity, primarily for LMI persons, through the creation of permanent jobs. The State may presume that any jobs created are held by or made available to a low- or moderate-income person, if the economic development activities are located in the New Isle community;
5. The State must submit a sustainability plan with its substantial action plan amendment adding the Fund as an activity, that is then approved by HUD. The sustainability plan must include prominent posting on the State's official website and must afford citizens, affected local governments, and other interested parties a reasonable opportunity to examine the plan. The State must notify affected citizens through electronic mailings, press releases, statements by public officials, media advertisements, public service announcements, and/or contacts with organizations located in or serving the target area or neighborhood. At a minimum, the sustainability plan must include the following information:
a. An estimate of the amount of taxes and insurance required for each home per year;
b. A detailed description of the process and timeline for New Isle residents to pay for housing costs that were once covered by the Fund, after their assistance from the Fund has ended (
c. A description of other financial resources, if any, that will be available to support beneficiaries with housing costs after the State concludes use of the Fund;
d. A detailed description of how the State will inform beneficiaries about the Fund, terms and conditions for Fund assistance, and the beneficiaries' financial responsibilities after assistance from the Fund ends; and
e. How the State will detect and prevent fraud, waste, and abuse in the administration and use of the Fund.
II.A.4.
Additionally, the
Finally, all public services carried out as part of the IDJC Resettlement Project shall be exempt from the cap on public service expenditures found in section 105(a)(8) of the HCDA (42 U.S.C. 5305(a)), as amended.
In the
The
Based on this authority, New Jersey's CDBG-DR grants for Tropical Storm Ida and its CDBG-DR grants for Superstorm Sandy may be used interchangeably and without limitation for the same activities in MID areas resulting from Superstorm Sandy or Tropical Storm Ida, if the MID areas of both disasters overlap and the activities address unmet needs of both disasters, as described in the May 2022 Notice and the January 2023 Notice. The State has requested, and HUD is providing the following waivers and alternative requirements to the State of New Jersey to carry out activities that will benefit Tropical Storm Ida beneficiaries. Both waivers and alternative requirements provided herein will help the State to expedite the delivery of assistance through programs that address the same activities related to unmet recovery needs resulting from Superstorm Sandy and Tropical Storm Ida in the MID areas that overlap. The grantee must describe its use of funds in both its CDBG-DR action plans for Superstorm Sandy and Tropical Storm Ida.
II.B.1.
The State's request notes that after Superstorm Sandy, the State identified a significant shortage of rental housing as a result of the storm, particularly in the MID areas, with rental stock being virtually non-existent. HUD and the State have evaluated the State's program budgets and the State has forecasted expenditures to determine that the State's Superstorm Sandy related unmet needs will be satisfied with the existing programs in place, while impacts related to Tropical Storm Ida have created new unmet rental needs that have further exacerbated issues associated with the COVID-19 pandemic.
Prior to Tropical Storm Ida, New Jersey's housing conditions were already under significant strain from the ongoing national housing crisis and supply chain issues from the COVID-19 pandemic. These issues combined with the subsequent impacts of the storm drastically escalated the State's housing and homelessness crises. At the time of the State's waiver request, the risk of eviction in New Jersey was greater than anywhere else in the country as 393,000 households were delinquent on their rent. These eviction pressures are faced primarily by residents of color, households with children, and in urban areas—including those disaster-impacted urban areas—where low-income populations are particularly vulnerable. In the State, more than 25 percent of renter households are extremely low income and 73 percent of these extremely low-income renters suffer from severe housing cost burden.
Due to the impacts of Tropical Storm Ida, over 8,000 homeowners and 4,500 renters experienced major to severe damage to their homes, as defined by HUD. The State of New Jersey has prioritized housing rehabilitation that will primarily benefit LMI households, through a phased approach for its homeowner program and by limiting its rehabilitation of rental housing to housing that will be affordable to LMI households. However, these units will take several years to be fully repaired and accessible. During that time, LMI residents residing in the MID areas could face unaffordable rents on top of an affordable housing crisis. Rents in the HUD MID-areas have considerably increased since Tropical Storm Ida. From 2021 to the anticipated launch of the State's CDBG-DR programs in 2023, rents in the HUD MID areas will have increased in some counties by over 10 percent and are expected to continue to rise over the next two to three years.
The State plans to use its CDBG-DR funds under Public Law 113-2 to offer rental assistance and utility payments in the form of direct payments to homeowners or renters who are displaced and homeless or at-risk of homelessness as a result of the impacts of Tropical Storm Ida when such assistance payments are part of a homelessness prevention, intermediate housing, or rapid rehousing program activity, including intermediate housing during the repair and reconstruction of homes.
After reviewing the State's request and based on the good cause that the waiver and alternative requirements will help homeowners and renters that are displaced and impacted by Tropical Storm Ida to obtain and remain in housing that is in limited supply due to New Jersey's ongoing housing and homelessness crises, the Department is imposing an alternative requirement to waive and modify 42 U.S.C. 5305(a)(8)
This activity is subject to the 15 percent cap on public services, and no beneficiary may receive more than a total of 24 months of rental assistance and utility payments. A homeowner receiving any form of CDBG-DR interim mortgage assistance that may be offered by the State is not eligible for rental assistance or utility payments, as authorized by this waiver and alternative requirement.
The State must determine that the rental assistance and utility payments are needed because the household moved from their primary residence due to rehabilitation or reconstruction needs from Tropical Storm Ida, the household is experiencing or is at risk of experiencing homelessness and the assistance is part of a homelessness prevention or rapid rehousing program or activity, or other disaster-related pressures on the housing market necessitate the assistance to support the household's recovery.
While this waiver and alternative requirement will allow the State to provide rental assistance and utility payments to households impacted by Tropical Storm Ida, this does not relieve the State of the duty to comply with other applicable requirements relating to the temporary relocation or displacement of households. If a household meets the definition of a “displaced person” under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, (42 U.S.C. 4601
The goals of this waiver and alternative requirement are to prevent and minimize the time households are experiencing or are at risk of experiencing homelessness as a result of the qualifying disaster and to provide additional time to stabilize persons or households in permanent housing through the use of CDBG-DR funds for rental assistance and utility payments. The use of CDBG-DR funds for each of these purposes advances the Department's priority to support forward-thinking solutions to help communities that are struggling to house and serve persons and families that are homeless or at risk of homelessness as a result of a disaster.
When providing rental assistance and utility payments to beneficiaries who are at risk of homelessness, the State must clearly demonstrate in their action plan the concrete steps they will take to prevent households from becoming homeless after the exhaustion of the CDBG-DR rental assistance. In addition, in developing their policies and procedures, the State must list services to be provided and outline a referral process that will enable the targeted households to apply to live in affordable housing units, including those that are created under other CDBG-DR funded programs.
HUD has previously certified the State's procedures to detect fraud, waste, and abuse prior to the obligation of Superstorm Sandy funding. To fortify these requirements and achieve a targeted use of funds and to safeguard against fraud, the State must amend the provisions in its policies and procedures to show how the State will verify the accuracy of information provided by applicants to its rental assistance and utility payment program, how the State will document that the applicant used the funds for only the eligible uses defined in its action plan or the program's policies and procedures, and how the State will detect and prevent fraud, waste, and abuse in its rental assistance and utility payment programs. The State must document, in its policies and procedures, how it will determine the basis of the rental assistance and utility payments award for each household assisted and that the amount of the assistance to be provided is necessary and reasonable and not duplicative of any other funding source, including insurance. To comply with the order of assistance requirements in the Appropriations Acts, any rental or temporary housing assistance provided by or made available by the Federal Emergency Management Agency (FEMA) must first be exhausted prior to providing CDBG-DR funds to a household for the uses permitted by this waiver and alternative requirement.
II.B.2.
The State of New Jersey has requested a waiver of section 414 of the Stafford Act (42 U.S.C. 5181), as amended, for real property acquisition, rehabilitation, and demolition of real property for CDBG-DR activities funded by Public Law 113-2 that will address the unmet housing needs from Tropical storm Ida.
Section 414 of the Stafford Act provides that “Notwithstanding any other provision of law, no person otherwise eligible for any kind of replacement housing payment under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 91-646) [42 U.S.C. 4601
The State has requested a waiver of section 414 of the Stafford Act to better align its CDBG-DR grants funded by Public Law 113-2 for Superstorm Sandy with its grants funded by the 2022 and 2023 Appropriations Acts. The State contends that this waiver, granted for all funds under the 2022 and 2023 Appropriations Acts, will allow it to implement its programs for Tropical storm Ida beneficiaries consistently, whether the program is being funded under Public Law 113-2 or the 2022 and 2023 Appropriations Acts.
HUD provided the waiver for grants under the 2022 and 2023 Appropriations Acts to simplify the administration of the disaster recovery process and reduce the administrative burden associated with the implementation of section 414 requirements for projects commencing more than one year after the date of the Presidentially declared disaster considering most of such persons displaced by the disaster will have returned to their dwellings or found another place of permanent residence.
Therefore, the Department has determined that good cause exists for a waiver for the State's funds under Public Law 113-2 and waives section 414 of the Stafford Act and its implementing regulation at 49 CFR 24.403(d)(1) to the extent that they would apply to real property acquisition, rehabilitation, or demolition of real property for a CDBG-DR funded project commencing more
For purposes of this waiver, a CDBG-DR funded project shall be determined to have commenced on the earliest of: (1) the date of an approved Request for Release of Funds and certification; (2) the date of completion of the site-specific review when a program utilizes Tiering; or (3) the date of sign-off by the approving official when a project converts to exempt under 24 CFR 58.34(a)(12).
This waiver does not apply with respect to persons that meet the occupancy requirements to receive a replacement housing payment under the URA nor does it apply to persons displaced or relocated temporarily by other HUD-funded programs or projects. Such persons' eligibility for relocation assistance and payments under the URA is not impacted by this waiver.
The
Because of the unique purpose of this $2 billion allocation of CDBG-DR funds, in recognition of the many Federal agencies that would be providing assistance to the Commonwealth and the USVI to enhance and improve each jurisdiction's electrical power system, and because of the historical and on-going fiscal and operational challenges of each of the public utilities that operate the Commonwealth and USVI systems, the June 2021 Noticeestablished a number of on-going coordination requirements unique to this allocation.
In February 2020, FEMA and the U.S. Department of Energy (DOE) established Energy Technical Coordination Teams (“TCT”) at each jurisdiction as a formal mechanism for coordination among the numerous local and Federal entities involved in electricity grid recovery to facilitate decision making and ensure the best use of expertise, solutions, and funds in the implementation of energy recovery activities. Section V.A.2.e. of the June 2021 Notice requires each grantee to consult at least quarterly with its respective TCT on one or more of the following areas: on the action plan required by the June 2021 Notice for the use of the CDBG-DR funds and any substantial amendments to that plan; the evaluation of the capacity of any public utility that will receive CDBG-DR funds to carry out improvements; the identification of opportunities to sequence and coordinate on permits and approvals necessary to carry out CDBG-DR funded electrical power system improvement activities, including environmental reviews; the technical evaluation of proposed electrical power system improvements; and implementation of applicable electrical power system industry standards and the commercial availability of system components that the grantee proposed to fund.
To ensure the coordination of electrical power system improvements that may be funded from each grantee's other allocations of CDBG-DR and CDBG mitigation (CDBG-MIT) funds provided in response to Hurricanes Irma and Maria, the June 2021 Notice also prohibits the use of other CDBG-DR and CDBG-MIT funds for electrical power system improvements until HUD consults and coordinates with its Federal members through the TCTs. The June 2021 Notice also provides that HUD shall determine when the required consultations previously noted shall be deemed complete.
Since the publication of the June 2021 Notice, each grantee has proactively engaged with its respective TCT on a wide range of issues associated with its planned and on-going electrical power system improvements. In January 2022, HUD, FEMA, and DOE also executed a memorandum of understanding establishing a framework outside of the TCT for coordination and providing technical assistance to the Commonwealth. Additionally, following Hurricane Fiona, the Administration announced the formation of a Puerto Rico Grid Recovery and Modernization Team, to be led by DOE, to coordinate Federal grid recovery and modernization efforts.
In recognition of these developments and the critical importance of accelerating electrical power system improvements following the devastating impact of Hurricane Fiona in September 2022, HUD finds good cause to waive and revise the consultation requirements of its June 2021 Notice as follows:
Upon approval by HUD of an action plan providing for the use of a grantee's total allocation of funds for electrical power system improvements as provided by the June 2021 Notice:
(1) Paragraph V.A.2.e of the June 2021 Notice, and as referenced elsewhere in the June 2021 Notice, with respect to TCT consultation shall no longer apply; provided that, at the request of HUD, each grantee shall engage with its TCT to provide updates on its implementation of CDBG-DR, CDBG-MIT, and other Federal funding for electrical power system improvements until grant closeout; and
(2) The consultation requirements at paragraph V.B.4 of the June 2021 Notice that prohibits grantees from using other CDBG-DR and CDBG-MIT funds provided in response to Hurricanes Irma and Maria for activities to enhance or improve electrical power systems until HUD consults and coordinates with its Federal members through the TCT shall no longer apply.
HUD will continue to engage its Federal partners directly in providing ongoing technical assistance to each grantee and in monitoring each grantee's use of all CDBG-DR and CDBG-MIT funds used for electrical power system improvements. HUD will also continue to engage its Federal partners through the TCTs, the Recovery Support Function Leadership Group (RSFLG) energy subgroup, and other forums.
The
The overall benefit requirement established by the HCDA requires that 70 percent of the aggregate of a grantee's
The State submitted a request to establish a lower overall benefit requirement based on the above criteria. In its request, the State contends that its two established programs: Owner-Occupied Rehabilitation and Reconstruction Program (OOR) and Multifamily Housing Program funded under Public Law 115-123 will meet the unmet needs of its LMI populations. Specifically, in its OOR program, the State has prioritized the needs of LMI persons and estimates that the program will expend at least 90 percent of funds for the benefit of LMI households. The Multifamily Housing Program is limited to projects that meet the LMI National Objective criteria, and the State estimates the program will expend 100 percent of funds for the benefit of LMI households. Based on these estimates, the total projected LMI benefit percentage for the State's allocation under Public Law 115-123 will be 96 percent, which demonstrates the State's commitment to meeting the needs of its LMI populations. While the Department evaluates overall benefit for each grant separately, the allocations from Public Laws 115-123 and 116-20 support recovery from the same disasters in the same MID areas, and the total projected LMI benefit percentage when combining the allocations would be 82 percent.
The State's allocation under Public Law 116-20 was limited to allow the State to only address its unmet infrastructure recovery needs. For this allocation, the State expanded its original Infrastructure Program proposed in its initial action plan to include standalone infrastructure projects and FEMA Hazard Mitigation Grant Program Non-Federal match activities in addition to FEMA Public Assistance non-federal match projects.
When considering its unmet infrastructure needs, the State indicated in its request that the total LMI percentage of the population in the HUD-identified MID areas is 42 percent, and the City of Clearlake is the only jurisdiction that is a MID area and would also qualify as an eligible LMI area. To address the needs of LMI households throughout the MID areas, the State prioritized infrastructure projects in MID areas that would benefit LMI areas through its Notice of Intent (NOI) process where eligible applicants submitted proposed infrastructure projects to meet the unmet infrastructure need in their community. The State also conducted extensive outreach to potential applicants by hosting multiple webinars and holding office hours for months during and after the NOI process. Despite these efforts, the State's CDBG-DR funded infrastructure program only received nine project applications from four eligible applicants: City of Clearlake, City of Santa Rosa, Santa Barbara County, and Sonoma County. Of the nine applications, three projects qualify for the LMI national objective, and all LMI projects will derive from a single eligible applicant, the City of Clearlake, leading to the allocation's total projected LMI benefit percentage being 38 percent.
To enable the State to undertake the activities it has determined to be the most critical for its recovery and LMI households in the MID areas, HUD is granting a waiver and alternative requirement to reduce the overall benefit requirement from 70 percent to not less than 38 percent of the State's total allocation of CDBG-DR funds for its unmet infrastructure recovery needs. This is a limited waiver modifying sections 101(c) and 104(b)(3)(A) of the HCDA and 24 CFR 570.200(a)(3) only to the extent necessary to reduce the LMI overall benefit requirement that the State must meet when carrying out activities identified in its approved action plan from 70 percent to not less than 38 percent of the grantee's allocation of CDBG-DR funds under Public Law 116-20 for its unmet infrastructure recovery needs. Based on the analysis submitted by the State, the Secretary finds good cause for this waiver and alternative requirement due to the circumstances outlined in the State's request. In particular, HUD notes that the State had demonstrated that it has sufficiently addressed LMI unmet recovery needs through both its CDBG-DR allocations awarded under Public Laws 115-123 and 116-20, conducted significant amounts of public outreach when determining LMI unmet infrastructure needs, and prioritized and selected infrastructure projects serving LMI areas, even though the LMI percentage of the MID areas was only 42 percent.
A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available online on HUD's CDBG-DR website at
Bureau of Land Management, Interior.
Notice of comment period.
In accordance with the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019, the Bureau of Land Management (BLM) is giving notice of a 60-day public comment period on the proposed recreational shooting closure included in the Proposed Sonoran Desert National Monument (SDNM) Resource Management Plan (RMP) Amendment and Final Environmental Assessment (2023).
The BLM will accept comments on the proposed SDNM target shooting closure included in the preferred alternative for 60 days. Written comments must be postmarked or electronically submitted to the BLM email address listed in the
You may submit comments regarding the proposed recreational shooting closures, by any of these methods:
•
•
You may examine documents and maps pertinent to this proposal online at
Tyler Lindsey, Lower Sonoran Field Manager, telephone 480-259-7436; address 2020 E. Bell Road, Phoenix, Arizona 85022; email
The Proposed SDNM RMP Amendment and Final Environmental Assessment considered four alternatives with a range of acres available for recreational target shooting. The preferred alternative in the proposed amendment is Alternative C, which would close 480,496 acres of public lands in the SDNM to recreational target shooting. Recreational target shooting would remain available on 5,295 acres of the SDNM. These lands are administered by the BLM Lower Sonoran Field Office. The proposed closure is for the smallest area necessary to ensure compliance with Presidential Proclamation 7397 and protect the objects and values for which the monument was designated. The proposed closure was analyzed in the environmental assessment.
The Sonoran Desert National Monument was established by Presidential Proclamation 7397 in 2001 and contains approximately 485,791 acres of BLM-administered public lands in Maricopa and Pinal counties, Arizona. The monument was created to protect an array of scientific, biological, archaeological, geological, cultural, and historic objects (66 FR 7354).
The BLM completed the SDNM Record of Decision and Approved RMP in 2012. Under a March 2015 court order, the BLM was required to reanalyze the impacts of recreational target shooting in the monument. In 2018, the BLM amended the RMP to allow dispersed recreational shooting in approximately 90 percent of the monument. That decision was challenged in 2019, and a settlement agreement in that case required this new planning effort.
The BLM prepared the SDNM Recreational Target Shooting RMP Amendment and Environmental Assessment in response to the April 2022 settlement agreement. The RMP Amendment considers whether and where recreational target shooting should be allowed in the monument, along with any associated management actions. In accordance with the settlement agreement, the BLM prepared a suitability analysis that considered those areas of the monument that are suitable for recreational target shooting based on the presence of monument objects, the resiliency of those objects to recreational target shooting, and topographic features. This information, in addition to public safety considerations and federal and state laws and regulations governing the discharge of firearms on public lands, helped inform the alternatives analyzed in the EA.
The National Park Service and the Arizona Game and Fish Department participated as cooperating agencies in the development of the RMP Amendment.
Following the public comment period, the BLM will respond to the substantive comments regarding the proposed recreational shooting closure in its decision document. See
To afford the BLM the opportunity to consider comments on the proposed SDNM target shooting closures before approval of the Decision Record/RMP Amendment, please ensure your comments are received by the date listed in the
The proposed RMP Amendment and finding of no significant impact also include a 30-day protest period that begins with the 60-day Dingell Act comment period announced under this notice. Information on filing a plan protest is available online at
Before including your address, phone number, email address, or other personal identifying information in any comment, be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, the BLM cannot guarantee that we will be able to do so.
Bureau of Ocean Energy Management, Interior.
Notification of procedural changes.
The Bureau of Ocean Energy Management (BOEM) has finalized revisions to its bid adequacy procedures to ensure the receipt of fair market value from Outer Continental Shelf (OCS) oil and gas lease sales. BOEM intends to assess bids using the revised procedures beginning with the first lease sale under
Matt Frye, Chief, Resource Evaluation Division, Office of Strategic Resources, at (703) 787-1514 or email at
On January 19, 2023, BOEM published its proposed revised bid adequacy procedures in the
BOEM reviewed all comments received and addressed those comments directly related to the proposed revised bid adequacy procedures. BOEM's response to those comments can be found at
International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of full reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping and countervailing duty orders on ripe olives from Spain would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days.
January 16, 2024.
Caitlyn Hendricks-Costello ((202) 205-2058), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Please note the Secretary's Office will accept only electronic filings during this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
A nonparty who has testimony that may aid the Commission's deliberations may request permission to present a short statement at the hearing. All parties and nonparties desiring to appear at the hearing and make oral presentations should attend a prehearing conference, if deemed necessary, to be held at 9:30 a.m. on Friday, May 24, 2024. Parties shall file and serve written testimony and presentation slides in connection with their presentation at the hearing by no later than 4:00 p.m. on May 29, 2024 (one business day prior to hearing). Oral testimony and written materials to be submitted at the public hearing are governed by sections 201.6(b)(2), 201.13(f), and 207.24 of the Commission's rules. Parties must submit any request to present a portion of their hearing testimony
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to these reviews must be served on all other parties to these reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
The Commission has determined that these reviews are extraordinarily complicated and therefore has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C.1675(c)(5)(B).
By order of the Commission.
Mine Safety and Health Administration, Labor.
Request for public comments.
The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed collections of information, in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The Mine Safety and Health Administration (MSHA) is soliciting comments on the information collection for Proximity Detection Systems for Continuous Mining Machines in Underground Coal Mines.
All comments must be received on or before March 22, 2024.
Comments concerning the information collection requirements of this notice may be sent by any of the methods listed below. Please note that late comments received after the deadline will not be considered.
•
•
• MSHA will post all comments as well as any attachments, except for information submitted and marked as confidential, in the docket at
S. Aromie Noe, Director, Office of Standards, Regulations, and Variances, MSHA, at
Section 103(h) of the Federal Mine Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. 813(h), authorizes MSHA to collect information necessary to carry out its duty in protecting the safety and health of miners. Further, section 101(a) of the Mine Act, 30 U.S.C. 811(a), authorizes the Secretary of Labor (Secretary) to develop, promulgate, and revise, as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal and metal and nonmetal mines.
Under 30 CFR 75.1732, underground coal mine operators must equip continuous mining machines, except full-face continuous mining machines, with proximity detection systems. Miners working near continuous mining machines face pinning, crushing, and striking hazards that result in accidents
Under 30 CFR 75.1732(d)(1), at the completion of the check of the machine-mounted components of the proximity detection system described under 75.1732(c)(1), a certified person must certify by initials, date, and time that the check was conducted. The certified person is defined under 30 CFR 75.100 as a person who has been certified as a mine foreman (mine manager), an assistant mine foreman (section foreman), or a preshift examiner (mine examiner). Defects found as a result of the check, including corrective actions and dates of corrective actions, must be recorded before the end of the shift.
Under 30 CFR 75.1732(d)(2), the operator must make a record of the defects found as a result of the checks of miner-wearable components required under 75.1732(c)(2), including corrective actions and dates of corrective actions.
Under 30 CFR 75.1732(d)(3), the operator must make a record of the persons trained in the installation and maintenance of proximity detection systems under 75.1732(b)(6).
Under 30 CFR 75.1732(d)(4), the operator must maintain records in a secure book or electronically in a secure computer system not susceptible to alteration.
Under 30 CFR 75.1732(d)(5), the operator must retain records for at least one year and make them available for inspection by authorized representatives of the Secretary and representatives of miners.
MSHA is soliciting comments concerning the proposed information collection related to Proximity Detection Systems for Continuous Mining Machines in Underground Coal Mines. MSHA is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information has practical utility;
• Evaluate the accuracy of MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The information collection request will be available on
The public may also examine publicly available documents at DOL-MSHA, 201 12th Street South, Suite 4E401, Arlington, VA 22202-5452. Sign in at the receptionist's desk on the 4th floor via the East elevator. Before visiting MSHA in person, call 202-693-9455 to make an appointment, in keeping with the Department of Labor's COVID-19 policy. Special health precautions may be required.
Questions about the information collection requirements may be directed to the person listed in the
This information collection request concerns provisions for Proximity Detection Systems for Continuous Mining Machines in Underground Coal Mines. MSHA has updated the data with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request from the previous information collection request.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the proposed information collection request; they will become a matter of public record and be available at
Occupational Safety and Health Administration (OSHA), Labor.
Request for nominations to serve on the Federal Advisory Council on Occupational Safety and Health (FACOSH).
The Assistant Secretary of Labor for Occupational Safety and Health Administration (OSHA) invites interested parties to submit nominations for membership on the Federal Advisory Council on Occupational Safety and Health (FACOSH).
Nominations for FACOSH must be submitted (postmarked, sent, transmitted, or received) by February 23, 2024.
You may submit nominations and supporting materials by one of the following methods:
FACOSH is authorized to advise the Secretary of Labor (Secretary) on all matters relating to the occupational safety and health of Federal employees (Occupational Safety and Health Act of 1970 (29 U.S.C. 668), 5 U.S.C. 7902, Executive Orders 12196 and 14109. This includes providing advice on how to reduce and keep to a minimum the number of injuries and illnesses in the Federal workforce and how to encourage the establishment and maintenance of effective occupational safety and health programs in each Federal agency. The FACOSH charter is available to read or download at
FACOSH is comprised of 16 members (eight members represent management of federal agencies and departments and eight members are from labor organizations that represent federal employees) who the Secretary appoints to staggered terms not to exceed three (3) years. The Assistant Secretary, who chairs FACOSH, is seeking nominations to fill a labor member position on FACOSH that became vacant on November 30, 2023. This is a mid-term appointment, and the term will end on December 31, 2024.
FACOSH members serve at the pleasure of the Secretary unless the member is no longer qualified to serve, resigns, or is removed by the Secretary. The Secretary may appoint FACOSH members to successive terms. FACOSH meets at least two (2) times per year. The Department of Labor is committed to equal opportunity in the workplace and seeks broad-based and diverse FACOSH membership. Any interested person or organization may nominate one (1) or more qualified persons for membership on FACOSH. Interested persons also are invited and encouraged to submit statements in support of particular nominees.
Nominations must include the following information:
1. The nominee's contact information and current occupation or position;
2. Nominee's resume or curriculum vitae, including prior membership on FACOSH and other relevant organizations, associations, and committees;
3. A summary of the nominee's background, experience, and qualifications that addresses the nominee's suitability for the nominated membership category of labor representative;
4. Articles or other documents the nominee has authored that indicate the nominee's knowledge, experience, and expertise in occupational safety and health, particularly as it pertains to the Federal workforce; and
5. A statement that the nominee is aware of the nomination, is willing to regularly attend and participate in FACOSH meetings and has no apparent conflicts of interest that would preclude membership on FACOSH.
The Secretary will appoint FACOSH members based on criteria including, but not limited to, the nominee's level of responsibility for occupational safety and health matters involving the Federal workforce, experience and competence in occupational safety and health, and willingness and ability to participate in FACOSH meetings regularly and fully. Labor nominees who are responsible for Federal employee occupational safety and health matters within their respective organizations are preferred. The information received through the nomination process, along with other relevant sources of information, will assist the Secretary in making appointments to FACOSH. In selecting FACOSH members, the Secretary will consider individuals nominated in response to this
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by section 19 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 668), 5 U.S.C. 7902, the Federal Advisory Committee Act (5 U.S.C. 10), Executive Order 12196 and 14109 Secretary of Labor's Order 8-2020 (85 FR 58393, 9/18/2020), 29 CFR part 1960 (Basic Program Elements of for Federal Employee Occupational Safety and Health Programs), and 41 CFR part 102-3.
Signed at Washington, DC.
Notice.
In accordance with the Paperwork Reduction Act (PRA), the Wage and Hour Division (WHD) is providing notice to the public that the WHD sponsored information collection request (ICR) titled “Employment Information Form,” has been approved by the Office of Management and Budget (OMB). WHD is notifying the public that the information collection has been revised and extended effective immediately through January 31, 2027.
The OMB approval of the revision of this information collection is effective immediately with an expiration date of January 31, 2027.
Robert Waterman, Division of Regulations, Legislation, and Interpretation, Wage and Hour, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number) or by sending an email to
The Department of Labor submitted a proposed revision to the information collection titled Employment Information Form (OMB Control Number 1235-0021) in conjunction
Section (k) of 5 CFR 1320.11, “Clearance of Collections of Information in Proposed Rules” states, “After receipt of notification of OMB's approval, instruction to make a substantive or material change to, disapproval of a collection of information, or failure to act, the agency shall publish a notice in the
National Endowment for the Arts.
Notice of proposed collection; comment request.
The National Endowment for the Arts (NEA), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data is provided in the desired format; reporting burden (time and financial resources) is minimized; collection instruments are clearly understood; and the impact of collection requirements on respondents is properly assessed. Currently, the NEA is soliciting comments concerning the proposed information collection of: Civil Rights Evaluation Tool, designed to evaluate grant recipients' compliance with federal law including Title VI of the Civil Rights Act of 1964 and 45 CFR part 1110, Nondiscrimination in Federally Assisted Programs. A copy of the proposed information collection request can be obtained by contacting the office listed below in the address section of this notice.
Written comments must be submitted to the office listed in the address section below within 60 days from the date of this publication in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Can help the agency minimize the burden of the collection of information on those who are to respond, including through the electronic submission of responses.
Email comments to the Office of Civil Rights and Equal Employment Opportunity (OCREEO), National Endowment for the Arts, at: 202-682-5014 or
David Travis, Guidelines and Panel Operations Specialist, National Endowment for the Arts, at: 202-682-5001 or
Weeks of January 22, 29, and February 5, 12, 19, 26, 2024. The schedule for Commission meetings is subject to change on short notice. The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Public and closed.
Members of the public may request to receive the information in these notices electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
There are no meetings scheduled for the week of January 29, 2024.
There are no meetings scheduled for the week of February 5, 2024.
There are no meetings scheduled for the week of February 12, 2024.
There are no meetings scheduled for the week of February 26, 2024.
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 or via email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Postal Service®.
Notice of modified system of records.
The United States Postal Service® (USPS) is proposing to modify one General Privacy Act System of Records (SOR) to support compliance of the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act) which prohibits the Postal Service from inquiring into the criminal history of applicants before a conditional offer of employment has been made.
These revisions will become effective without further notice on February 21, 2024, unless responses to comments received on or before that date result in a contrary determination.
Comments may be submitted via email to the Privacy and Records Management Office, United States Postal Service Headquarters (
Janine Castorina, Chief Privacy and Records Management Officer, Privacy and Records Management Office, via email at
This notice is in accordance with the Privacy Act requirement that agencies publish their systems of records in the
The Postal Service must ensure that it is complying with Fair Chance to Compete for Jobs Act of 2019. The Fair Chance Act prohibits the Postal Service from inquiring into the criminal history of applicants before a conditional offer of employment has been made. An applicant who feels their rights under this law have been violated has 30 days from the date of violation to make a complaint to the Postal Service. The Postal Service will conduct a fact-finding investigation within 60 days of a complaint and submit all documents and findings to OPM.
The Postal Service is committed to compliance with the Fair Chance Act. The proposed Privacy Act System of Records updates reflects this commitment to being transparent with the collection and usage of an individual's information as a required result of a formal filing of complaint against the Postal Service if the individual believes the Postal Service inquired into the criminal history of an applicant before a conditional offer of employment has been made.
The Postal Service is proposing modifications to USPS SOR 100.900 Employee Inquiry, Complaint, and Investigative Records, in the summary of changes listed below:
• Updated SYSTEM MANAGERS to reflect the current Human Resource title.
• Added one CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM as bullet point #2 to include individuals specifically covered by the Fair Chance Act.
• Updated all three CATEGORIES OF RECORDS IN THE SYSTEM to include specific individual data elements and the full process of investigation to include decision and resolution of complaint.
• Updated administrative information in NOTIFICATION PROCEDURES to include individuals specifically covered by the Fair Chance Act.
Pursuant to 5 U.S.C. 552a(e)(11), interested persons are invited to submit written data, views, or arguments on this proposal. A report of the proposed revisions has been sent to Congress and to the Office of Management and Budget (OMB) for their evaluations. The Postal Service does not expect this amended system of records to have any adverse effect on individual privacy rights. USPS SOR 100.900 Employee Inquiry, Complaint, and Investigative Records is provided below in its entirety:
USPS 100.900 Employee Inquiry, Complaint, and Investigative Records.
None.
USPS personnel offices; area and district facilities; Post Offices; and contractor sites.
Vice President, Human Resources, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
Vice President, Labor Relations, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260.
39 U.S.C. 401, 410, 1001, 1005, and 1206.
1. To enable review and response to inquiries and complaints concerning employees and non-employees.
2. To enable management to initiate, review, process, track, and resolve inquiries, complaints, or concerns about the workplace.
3. To support administrative or court litigation and arbitration proceedings.
1. USPS employees and non-employees who contact USPS with an inquiry or complaint, and employees and non-employees who are subjects of management inquiries or investigations of workplace issues.
2. Individuals that file or are the subject of a complaint under the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act) and related regulations.
1.
2.
3.
Employees, non-employees, supervisors, managers, and witnesses.
Standard routine uses 1. through 9. apply. In addition:
a. Records may be disclosed to the National Labor Relations Board (NLRB) in response to its request for investigative purposes, to the extent that the requested information is relevant and necessary.
Automated database, computer storage media, and paper.
By employee and non-employee name, Employee Identification Number, Applicant Identification Number, subject category, facility, finance number, district, area, nationally, or case number.
Records are retained 4 years after response to inquiry, resolution of complaint, or conclusion of investigation.
Records existing on paper are destroyed by burning, pulping, or shredding. Records existing on computer storage media are destroyed according to the applicable USPS media sanitization practice.
Paper records, computers, and computer storage media are located in controlled-access areas under supervision of program personnel. Access to these areas is limited to authorized personnel, who must be identified with a badge.
Access to records is limited to individuals whose official duties require such access. Contractors and licensees are subject to contract controls and unannounced on-site audits and inspections. Computers are protected by mechanical locks, card key systems, or other physical access control methods.
The use of computer systems is regulated with installed security software, computer logon identifications, and operating system controls including access controls, terminal and transaction logging, and file management software.
Requests for access must be made in accordance with the Notification Procedure above and USPS Privacy Act regulations regarding access to records and verification of identity under 39 CFR 266.5.
See
Employees who want to know if their information is maintained in this system of records must address inquiries to the facility head where currently or last employed.
Headquarters employees must submit inquiries to Corporate Personnel Management, 475 L'Enfant Plaza SW, Washington, DC 20260.
Individuals who file complaints under the Fair Chance Act must submit complaints to National Human Resources at
Non-employees who want to know if their information is maintained in this system of records must address inquiries to the District Manager, Human Resources that governs the facility where the inquiry, complaint, or investigative records are stored. Inquiries must include full name, address, and other identifying information. In addition, employees must include Social Security number or Employee Identification Number, name and address of facility where last employed, and dates of USPS employment. Likewise, employees may also be required to furnish where the inquiry, complaint, or investigation occurred.
Records in this system that have been compiled in reasonable anticipation of a civil action or proceeding are exempt from individual access as permitted by 5 U.S.C. 552a(d)(5). The USPS has also claimed exemption from certain provisions of the Act for several of its other systems of records at 39 CFR 266.9. To the extent that copies of exempted records from those other systems are incorporated into this system, the exemptions applicable to the original primary system continue to apply to the incorporated records.
January 26, 2018, 83 FR 3777.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The title for the collection of information is “Form N-6F (17 CFR 274.15), Notice of Intent to Elect to be Subject to Sections 55 through 65 of the Investment Company Act of 1940.” The purpose of Form N-6F is to notify the Commission of a company's intent to file a notification of election to become subject to Sections 55 through 65 of the Investment Company Act of 1940 (15 U.S.C. 80a-1
The Commission estimates that on average approximately 9 companies file these notifications each year. Each of those companies need only make a single filing of Form N-6F. The Commission further estimates that this information collection imposes burden of 0.5 hours, resulting in a total annual PRA burden of 4.5 hours. Based on the estimated wage rate, the total cost to the industry of the hour burden for complying with Form N-6F would be approximately $1,912.50.
The collection of information under Form N-6F is mandatory. The information provided under the form is not kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX Options”) proposes to amend its Fee Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fee schedule for its equity options platform (“EDGX Options”) relating to logical connectivity fees.
By way of background, the Exchange offers a variety of logical ports, which provide users with the ability within the Exchange's System to accomplish a specific function through a connection, such as order entry, data receipt or access to information. The Exchange currently assesses, among other things, the following logical port connectivity fees on a monthly basis: $500 per port for Logical Ports;
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of section 6(b) of the Act.
The Exchange believes the proposed fee is reasonable as it is still in line with, or even lower than, amounts assessed by other exchanges for similar connections.
The Exchange also notes market participants may continue to choose the method of connectivity based on their specific needs, and no broker-dealer is required to become a Member of, let alone connect directly to, the Exchange. There is also no regulatory requirement that any market participant connect to any one particular exchange. Moreover, direct connectivity is not a requirement to participate on the Exchange. The Exchange also believes substitutable products and services are available to market participants, including, among other things, other options exchanges to which a market participant may connect in lieu of the Exchange, indirect connectivity to the Exchange via a third-party reseller of connectivity, and/or trading of any options product, such as within the Over-the-Counter (OTC) markets, which do not require connectivity to the Exchange. Indeed, there are currently 17 registered options exchanges that trade options (13 of which are not affiliated with Cboe), some of which have similar or lower connectivity fees.
As for market participants that determine to continue to maintain membership or to join the Exchange for business purposes, those business reasons presumably result in revenue capable of covering the proposed fee. Further, for such market participants that choose to connect to the Exchange, the Exchange believes the proposed fees continue to provide flexibility with respect to how to connect to the Exchange based on each market participants' respective business needs. For example, the amount and type of logical ports are determined by factors relevant and specific to each market participant, including its business model, costs of connectivity, how its business is segmented and allocated and volume of messages sent to the Exchange. Moreover, the Exchange notes that it does not have unlimited system capacity and the proposed fees are also designed to encourage market participants to be efficient with their respective logical port usage. There is also no requirement that any market participant maintain a specific number of logical ports and a market participant may choose to maintain as many or as few of such ports as each deems appropriate.
As noted above, there is no regulatory requirement that any market participant connect to any one options exchange, nor that any market participant connect at a particular connection speed or act in a particular capacity on the Exchange, or trade any particular product offered on an exchange. Moreover, membership is not a requirement to participate on the Exchange. Indeed, the Exchange is unaware of any one options exchange whose membership includes every registered broker-dealer. By way of example, while the Exchange has 51 members that trade options, Cboe BZX has 61 members that trade options, and Cboe C2 has 52 Trading Permit Holders (“TPHs”) (
The Exchange also believes that the proposed fee change is not unfairly discriminatory because it would be assessed uniformly across all market participants that purchase the respective logical ports. All Members have the option to select any connectivity option, and there is no differentiation among Members with regard to the fees charged for the services offered by the Exchange.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance
The Exchange believes the proposed fees will not impact intermarket competition because they are also in line with, or even lower than some fees for similar connectivity on other exchanges, and therefore may stimulate intermarket competition by attracting additional firms to connect to the Exchange or at least should not deter interested participants from connecting directly to the Exchange. Further, if the changes proposed herein are unattractive to market participants, the Exchange can, and likely will, see a decline in usage of these ports as a result. The Exchange operates in a highly competitive market in which market participants can determine whether or not to connect directly to the Exchange based on the value received compared to the cost of doing so. Indeed, market participants have numerous alternative venues that they may participate on and direct their order flow, including 13 (soon to be 14) non-Cboe affiliated options markets, as well as off-exchange venues, where competitive products are available for trading. Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing proposed rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995
Rule 11a-2 (17 CFR 270.11a-2) under the Investment Company Act of 1940 (15 U.S.C. 80a-1
The Commission staff estimates that 657 registrants are governed by Rule 11a-2. Based on this estimate, the total annual burden hours associated with the rule is estimated to be 657 hours. The estimated burden hours associated with rule 11a-2 has decreased by 19 hours from the current allocation of 676 hours. The decrease is due to a decrease in the number of registrants. The estimated external cost associated with this collection of information continues to be $0. The Commission includes the estimated burden of complying with the information collection required by Rule 11a-2 in the total number of burden hours estimated for completing the relevant registration statements and reports the burden of Rule 11a-2 in the separate Paperwork Reduction Act (“PRA”) submissions for those registration statements (see the separate PRA submissions for Form N-3 (17 CFR 274.11b), Form N-4 (17 CFR 274.11c) and Form N-6 (17 CFR 274.11d). The Commission is requesting a burden of one hour for Rule 11a-2 for administrative purposes.
The estimate of average burden hours is made solely for the purposes of the PRA and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules or forms. The information collection requirements imposed by Rule 11a-2 are mandatory. Responses to the collection of information will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17f-1 (17 CFR 270.17f-1) under the Investment Company Act of 1940 (the “Act”) (15 U.S.C. 80a) is entitled: “Custody of Securities with Members of National Securities Exchanges.” Rule 17f-1 provides that any registered management investment company (“fund”) that wishes to place its assets in the custody of a national securities exchange member may do so only under a written contract that must be ratified initially and approved annually by a majority of the fund's board of directors. The written contract also must contain certain specified provisions. In addition, the rule requires an independent public accountant to examine the fund's assets in the custody of the exchange member at least three times during the fund's fiscal year. The rule requires the written contract and the certificate of each examination to be transmitted to the Commission. The purpose of the rule is to ensure the safekeeping of fund assets.
Commission staff estimates that each fund makes 1 response and spends an average of 3.5 hours annually in complying with the rule's requirements. Commission staff estimates that on an annual basis it takes: (i) 0.5 hours for the board of directors
Funds that rely on Rule 17f-1 generally use outside counsel to prepare the custodial contract for the board's review and to transmit the contract to the Commission. Commission staff estimates the cost of outside counsel to perform these tasks for a fund each year is $1,130.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even
The public may view background documentation for this information collection at the following website:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 12d1-4 (17 CFR 270.12d1-4)under the Investment Company Act of 1940 (15 U.S.C. 80a-1
In addition to the mirror voting provisions of the rule, there are some circumstances in which the acquiring funds are the only shareholders of an acquired fund, and in such cases, pass-through voting may be used. Staff estimates that 10 funds will use pass-through voting. Staff estimates that internal counsel for such funds will spend 3 hours updating proxy voting policies and disclosures and 30 hours communicating with shareholders and voting accordingly. Thus, the staff estimates that the annual hour burden of the collection of information imposed by the pass-through provisions to be 33 hours per fund, resulting in a total burden of 330 hours.
Combining the estimates for the mirror voting and pass-through voting calculations, staff estimates that 446 funds will spend a total of 2,946 hours complying with the voting provisions of the rule.
The following estimates of external costs are made solely for purposes of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
As outlined above, we estimate the total external cost burden to comply with rule 12d1-4 to be $2,438,540.
The public may view background documentation for this information collection at the following website:
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the U.S. Securities and Exchange Commission will hold an Open Meeting on Wednesday, January 24, 2024, at 10:00 a.m. (ET).
The meeting will be webcast on the Commission's website at
This meeting will begin at 10:00 a.m. (ET) and will be open to the public via webcast on the Commission's website at
1. The Commission will consider whether to adopt new rules and amendments to enhance disclosures and provide additional investor protections in initial public offerings by special purpose acquisition companies (SPACs) and in subsequent business combination transactions between SPACs and target companies (de-SPAC transactions), and to address investor protection concerns more broadly with respect to shell companies.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
2:00 p.m. on Thursday, January 25, 2024.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to examinations and enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to section 11A of the Securities Exchange Act of 1934 (“Act”)
The Sponsors state that they have filed the Amendment pursuant to Rule 608(a)(1) under Regulation NMS.
Any two or more self-regulatory organizations, acting jointly, . . . may propose an amendment to an effective national market system plan (“proposed amendment”) by submitting the text of the . . . amendment to the Commission by email, together with a statement of the purpose of such . . . amendment and, to the extent applicable, the documents and information required by paragraphs (a)(4) and (5) of this section.
The Commission is publishing this notice to solicit comments from interested persons on the proposed Amendment. Set forth below in Section I, which is being published verbatim as filed by the Sponsors, is the statement of the purpose and summary of the Amendment, along with information pursuant to Rule 608(a) under the Act.
Access to high-quality, real-time market data is essential for participation in the financial markets. For this reason, market participants, regulators, and data providers are constantly working to strike a balance between data quality and data expense. Cboe proposes to amend the OPRA Plan in a manner in which it believes will better enable all OPRA Members to expand the amount of proprietary data available to users and consumers of such data, as well as spur innovation and competition for market data. In particular, Cboe believes that the proposed amendments would result in broadening the availability of U.S. option market data to investors consistent with the principles of Regulation NMS. The proposed amendment also will promote transparency by facilitating the dissemination of market data more widely through additional distribution channels, which will enable investors to better monitor trading activity on the U.S. options exchanges, support more informed trading and investment decisions, and thereby serve the public interest. To be clear, Cboe firmly believes that these amendments are simply clarifications of what the plain text of the OPRA Plan currently says. But in light of disagreement over the meaning of the current plan, Cboe seeks to make explicit the meaning of the OPRA Plan.
In particular, the Exchange proposes to amend Section 5.2(c)(iii) of the OPRA Plan (“Equivalent Access Provision”) which currently provides that:
(iii) A Member may disseminate its Proprietary Information pursuant to subparagraph (ii) of this paragraph (c) provided that:
(A) such dissemination is limited to other Members and to persons who also have equivalent access to consolidated Options Information disseminated by OPRA for the same classes or series of options that are included in the Proprietary Information. For purposes of this clause (A), “consolidated Options Information” means consolidated Last Sale Reports combined with either consolidated Quotation Information or the BBO furnished by OPRA, and access to consolidated Options Information and access to Proprietary Information are deemed “equivalent” if both kinds of information are equally accessible on the same terminal or work station; and
(B) a Member may not disseminate its Proprietary Information on any more timely basis than the same information is furnished to the OPRA System for inclusion in OPRA's consolidated dissemination of Options Information.
On July 20, 2001, the Commission approved an amendment to the OPRA Plan which allowed exchanges to provide proprietary data to their members under certain conditions, including a requirement that members have “equivalent access” to consolidated options information.
Cboe believes that, based on its plain language, subparagraph (A) of the Equivalent Access Provision is satisfied where a recipient of an exchange proprietary data product also is simultaneously authorized and entitled to receive OPRA data in one of the ways that OPRA makes its data available; that is, by maintaining a streaming subscription to the OPRA feed
Cboe strongly believes there are several bases that support its reading of the current subparagraph (A) of the Equivalent Access Provision including: the plain reading and unambiguous nature of the language in Equivalent Access Provision; the nature of the current OPRA audit protocols to ensure compliance with Equivalent Access Provision; the language (or lack thereof) included in OPRA market data agreements, policies and fees schedules relating to Equivalent Access and public representations made by other OPRA members since the adoption of the provision in 2001 that are inconsistent with a requirement that a person receiving a proprietary data feed also receive streaming real-time data from OPRA.
In March 2023 however, other OPRA Members took a different view and asserted that the Equivalent Access Provision can only be satisfied where a recipient of an exchange proprietary data feed also maintains a streaming subscription to the full OPRA feed (
Cboe proposes to modify Section 5.2(c)(iii)(A) of the OPRA Plan to clarify that access to consolidated Options Information and access to Proprietary Information are deemed “equivalent” if “Proprietary Information” and “consolidated Options Information” (as those terms are defined in the OPRA Plan), are equally accessible on the same terminal or work station, regardless of whether the OPRA data is disseminated on a streaming or per usage basis. Specifically, Cboe proposes to revise Section 5.2(c)(iii)(A) of the OPRA Plan to replace the sentence the following sentence:
For purposes of this clause (A), “consolidated Options Information” means consolidated Last Sale Reports combined with either consolidated Quotation Information or the BBO furnished by OPRA, and access to consolidated Options Information and access to Proprietary Information are deemed “equivalent” if both kinds of information are equally accessible on the same terminal or work station.
For purposes of this clause (A), “consolidated Options Information” means consolidated Last Sale Reports combined with either consolidated Quotation Information or the BBO furnished by OPRA, and access to consolidated Options Information and access to Proprietary Information are deemed “equivalent” if Proprietary Information and consolidated Options Information, whether disseminated on a streaming- or per usage-basis, are equally accessible on the same terminal or work station.
The new language would clarify that the Equivalent Access Provision is satisfied if a recipient of an exchange proprietary data product also is simultaneously authorized and entitled to receive OPRA data in one of the ways that OPRA makes its data available; that is, by maintaining a streaming subscription to the OPRA feed
The current Equivalent Access Provision of the OPRA Plan, as interpreted by OPRA, requires that vendors purchase a streaming subscription to the full OPRA feed alongside any exchange proprietary data product. That requirement could be cost-prohibitive or technologically unfeasible when considering the growing and significant bandwidth requirements associated with the full streaming OPRA data feed.
Indeed, when the National Association of Securities Dealers, Inc. (“NASD”) first established a per-query fee structure for U.S. equities, it noted its purpose was “to provide retail customers with a cost-effective alternative to calling their brokers for current market information.”
Although, the Commission's finding related to US equities pricing data, the underlying rationale applies with equal force to the options industry. OPRA's current interpretation of the Equal Access provision is directly at odds with that SEC statement—instead of facilitating cost effective access that will “accommodate the information needs of individual investors,” it will disfavor small investors that do not require—and may be unable to pay for or technologically accommodate—a full feed of streaming, real-time data from OPRA.
In addition, when OPRA amended its rules to make usage based access permanently available following a pilot, OPRA stated that “the availability of these alternative [usage-based] fees has not had
Moreover, under Cboe's proposal, all investors receiving exchange proprietary data will continue to have access to OPRA data should they so choose. The only difference is that the proposed amendment will provide subscribers with flexibility to choose the manner in which they are able to view the data. More specifically, since OPRA's usage-based data service allows market participants to obtain quote packets and options chains on their terminal or work station, by definition, that service will still provide equivalent access to “consolidated Options Information” because that market participants will have access to “Last Sale Reports,” “Quotation Information,” and the “BBO”, as required under the current Equivalent Access Provision.
Cboe also believes absent its proposed amendment, there could be discriminatory application of fees between market participants who choose to subscribe to exchange proprietary data products and those who do not. That discriminatory treatment arises because, absent the proposed amendment, only those market participants who do
Finally, Cboe believes its proposal fosters pricing competition because it provides users with more choices about what OPRA data to subscribe to, and what, if any, exchange data to subscribe to. That increased choice reduces that possibility that any one market data provider, including OPRA, could charge non-competitive prices for its data. In other words, that proposed amendment would result in a situation where all exchanges, as well as OPRA, would have an incentive to price their market data products based on the value relative to that of other markets, as they would otherwise risk that market participants would not subscribe to their products. As such, exchanges would have to compete on the price or quality of their data (
Cboe also proposes to add a new paragraph to the Equivalent Access Provision: proposed paragraph (C) of Section 5.2(c)(iii) of the OPRA Plan. Proposed paragraph (C) would include two requirements. First, Cboe proposes to require that dissemination of consolidated Options Information for the same classes or series of options that are included in the Proprietary Information must be displayed in a context in which a trading or order-routing decision can be implemented (
Like the Vendor Display Rule
Cboe also proposes to make clear that OPRA “consolidated Options Information” must also be provided if a registered representative of a broker-dealer provides a quotation to a customer that can be used to assess the current market or the quality of trade execution. The foregoing requirement codifies guidance provided by the SEC in connection with the Vendor Display Rule.
When adopting the Vendor Display Rule, the Commission expressed its view that the NBBO continues to provide a great deal of value for retail investors in assessing the current market for small trades and the quality of execution of such trades.
The proposed adoption of new subparagraph (C) under Section 5.2(c)(iii) of the OPRA Plan is designed to ensure continuing access to real-time “consolidated Options Information,” a long-standing requirement in the securities industry to display consolidated market data at the times when it is most needed. With the recent growth in US options trading, and a large portion of that growth coming from retail investors, it is imperative to continue to empower those investors with cost-effective U.S. options pricing information, along with the ability to choose the manner in which they access such data in accordance with their needs. Cboe believes its proposed display requirements, coupled with the proposal to clarify that OPRA's usage-based data service satisfies the Equivalent Access Provision, will achieve that objective and therefore meets the standard of being appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, and removes impediments to, and perfects the mechanism of, a national market system.
Cboe proposes to modify Section 5.2(c)(iii) of the OPRA Plan. The existing OPRA Plan is available on the OPRA website,
The proposed amendment will be incorporated into the OPRA Plan following Commission approval of the amendment pursuant to Rule 608(b)(1) and (b)(2) of Regulation NMS.
Not applicable.
Cboe believes that the proposed amendment will impose no burdens on competition that are not justified in light of the purposes of the Act. Rather, for the reasons discussed more fully above, Cboe believes the proposed amendment furthers competition and incorporates what Cboe believes to be the historical interpretation of the Equivalent Access Provision by many market participants across the industry. The proposal to clarify that OPRA's usage-based data services satisfies the Equivalent Access Provision, coupled with the proposed display requirements. would provide investors, particularly retail investors and the retail brokers that support them, with cost- effective U.S. options pricing information, along with the ability to choose the manner in which they access such data in accordance with their needs. Cboe believes that its proposal will further access to market data generally and will equip investors, including retail investors, with the ability to make informed investment decisions.
In particular, Cboe believes that the proposed amendments to the OPRA Plan would avoid an interpretation that would limit access to valuable options market data by imposing a cost prohibitive and/or technologically unfeasible requirement on investors, particularly low volume users like individual retail investors. The proposal also will provide the possibility of lower overall costs for US options market data users and permitting them to better evaluate the cost-to-value ratio of obtaining different types of data. Moreover, the proposed amendment would avoid rendering exchange proprietary market data products redundant, effectively leaving OPRA's feed as the only data source for options market participants such as retail investors. Furthermore, Cboe does not believe that the ability to choose the manner in which OPRA data is received (
Not applicable.
Not applicable.
Proposed amendments to the OPRA Plan set forth in Exhibit A.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
The Plan does not include provisions regarding resolution of disputes between or among the Members.
Additions
(c)
(iii) A Member may disseminate its Proprietary Information pursuant to subparagraph (ii) of this paragraph (c) provided that:
(A) such dissemination is limited to other Members and to persons who also have equivalent access to consolidated Options Information disseminated by OPRA for the same classes or series of options that are included in the Proprietary Information. For
(B) a Member may not disseminate its Proprietary Information on any more timely basis than the same information is furnished to the OPRA System for inclusion in OPRA's consolidated dissemination of Options Information
The Commission seeks comment on the Amendment. Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed amendment is necessary or appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanisms of, a national market system, or otherwise in furtherance of the purposes of the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend Rule 3240 (Borrowing From or Lending to Customers) to strengthen the general prohibition against borrowing and lending arrangements, narrow some of the existing exceptions to that general prohibition, modernize the immediate family exception, and enhance the requirements for giving notice to members and obtaining members' approval of such arrangements.
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Rule 3240 generally prohibits, with exceptions, registered persons from borrowing money from or lending money to their customers. The rule has five tailored exceptions, available only when the registered person's member firm has written procedures allowing the borrowing and lending of money between such registered persons and customers of the member, the borrowing or lending arrangements meet the conditions in one of the exceptions
Rule 3240 was last amended in 2010, when it became part of the consolidated FINRA rulebook.
FINRA is proposing to amend Rule 3240 to strengthen the general prohibition against borrowing and lending arrangements, narrow some of the existing exceptions to that general prohibition, modernize the immediate family exception, and enhance the requirements for giving notice to members and obtaining members' approval of such arrangements.
Rule 3240 generally prohibits registered persons from borrowing from or lending to their customers. To make this regulatory purpose more prominent, the proposed rule change would amend the rule's title from “Borrowing From or Lending to Customers” to “Prohibition on Borrowing From or Lending to Customers,” and change the title of Rule 3240(a) from “Permissible Lending Arrangements; Conditions” to “General Prohibition; Permissible Borrowing or Lending Arrangements; Conditions.” These changes would emphasize that the rule is, first and foremost, a general prohibition.
In addition, the proposed rule change would strengthen this general prohibition in three ways. First, Rule 3240(a) would be amended to clarify that the rule's general requirements concerning borrowing and lending arrangements—including the general prohibition—apply to arrangements that pre-exist a new broker-customer relationship. Currently, Rule 3240(a) begins, “[n]o person associated with a member in any registered capacity may borrow money from or lend money to any customer of such person . . . .” FINRA is proposing to amend this introductory clause in Rule 3240(a) to also prohibit registered persons from initiating a broker-customer relationship with a person with whom the registered person has an existing borrowing or lending arrangement.
Second, FINRA is proposing to add Rule 3240.02 (Customer). Proposed Rule 3240.02 would define “customer” to include, for purposes of Rule 3240, any customer that has, or in the previous six months had, a securities account assigned to the registered person at any member. This would extend the rule's limitations to borrowing or lending arrangements entered into within six months after a broker-customer relationship terminates. This proposed definition would align with the definition of “customer” in FINRA Rule 3241 (Registered Person Being Named a Customer's Beneficiary or Holding a Position of Trust for a Customer), a rule that addresses similar types of conflicts.
Third, FINRA is proposing to add Rule 3240.05 (Arrangements with Persons Related to Either the Registered Person or the Customer). Proposed Rule 3240.05 would extend the rule's requirements to borrowing or lending arrangements that involve similar conflicts as ones presented by arrangements directly between registered persons and their customers. Specifically, proposed Rule 3240.05 would provide that “[a] registered person instructing or asking a customer to enter into a borrowing or lending arrangement with a person related to the registered person (
In addition, FINRA is proposing to add Rule 3240.03 (Owner-Financing Arrangements) to expressly state that, for purposes of Rule 3240, borrowing or lending arrangements include owner-financing arrangements. For example, Rule 3240 would apply to situations where a registered person purchases real estate from his customer, the customer agrees to finance the purchase, and the registered person provides a promissory note for the entire purchase price or arranges to pay in installments.
One of the few exceptions to Rule 3240's general prohibition is for borrowing or lending arrangements with a customer who is a member of the registered person's immediate family.
During the retrospective review of Rule 3240, FINRA received feedback that the definition of “immediate family” should be modernized. The proposed rule change would modernize the “immediate family” definition to match the definition of the same term in Rule 3241, which also has exceptions for situations in which the customer is a member of the registered person's immediate family.
Currently, two exceptions to the rule's general prohibition are for arrangements based on (1) a “personal relationship with the customer, such that the loan would not have been solicited, offered, or given had the customer and the registered person not maintained a relationship outside of the broker-customer relationship”; and (2) a “business relationship outside of the broker-customer relationship.”
In addition to narrowing the personal relationship and business relationship exceptions, FINRA is proposing to add Rule 3240.04 (Close Personal Relationships; Business Relationships), which would provide factors for evaluating whether a borrowing or lending arrangement is based on a close personal relationship or a business relationship. The proposed factors would include, but would not be limited to, when the relationship began, its duration and nature, and any facts suggesting that the relationship is not bona fide or was formed with the purpose of circumventing the purpose of Rule 3240. Proposed Rule 3240.04 is intended to help establish the scope of the close personal relationship and business relationship exceptions, focus on the most relevant factors when evaluating whether a close personal relationship or business relationship exists, and ensure that members consider meaningfully the potential issues involved in the proposed arrangement.
To provide even more guidance about the scope of the close personal relationship and business relationship exceptions, proposed Rule 3240.04 would also provide illustrative examples of these relationships. Specifically, it would provide that examples of relationships that are close personal relationships include, but are not limited to, a childhood or long-term friend, a godparent, and other similarly close relationships. Additionally, proposed Rule 3240.04 would provide that an example of a business relationship includes, but is not limited to, a loan from a registered person to a small outside business that the registered person co-owned for years for the sole purpose of providing the business with additional operating capital.
The proposed rule change would also amend Rule 3240's notification and approval requirements. Currently, Rule 3240(b) contains notification and approval requirements for borrowing or lending arrangements within the five exceptions, which vary depending on which exception applies. With respect to the personal relationship, business relationship, and registered persons exceptions, Rule 3240(b)(1) provides that a registered person shall notify the member of borrowing or lending arrangements prior to entering into such arrangements, and that the member shall pre-approve in writing such arrangements.
FINRA is proposing several amendments to all these notification and approval requirements. First, FINRA is proposing to amend Rule 3240(b)(1) to clarify that, although registered persons are required to obtain the member's prior approval of arrangements within the close personal relationship, business relationship, or registered persons exceptions, the member is not required to approve such arrangements. As explained above, Rule 3240(b)(1) currently provides that the member “shall pre-approve” such arrangements, which could imply incorrectly that the member must approve the arrangement or modification and may not disapprove it. To preclude this incorrect interpretation, the proposed rule change would delete the “shall pre-approve” language and instead require the
The proposed rule change would also amend the notification and approval requirements that apply to borrowing or lending arrangements within the registered persons, personal relationship and business relationship exceptions, to correspond with the proposed amendments that would clarify that the general prohibition applies to pre-existing arrangements. Specifically, proposed Rule 3240(b)(1)(B) would require registered persons, prior to the initiation of a broker-customer relationship at the member with a person with whom the registered person has an existing borrowing or lending arrangement, to notify the member in writing of existing arrangements within the registered persons, personal relationship and business relationship exceptions and obtain the member's approval in writing of the broker-customer relationship.
Further, the proposed rule change would require that all notices required under Rule 3240 be in writing and retained by the member. Currently, Rule 3240 does not specify that notice must be given in writing, and the record-retention provision in Rule 3240.01 requires members only to preserve written approvals. The proposed rule change would require registered persons to give written notice and require members to preserve records of such written notice for at least three years.
The proposed rule change would also amend the provisions that address notice and approval of arrangements within the immediate family and financial institution exceptions, to correspond with the proposed amendments that would clarify that the general prohibition applies to arrangements that pre-exist the broker-customer relationship. Currently, under Rule 3240(b)(2) and (3), the member's written procedures may indicate that registered persons are not required to notify the member or receive member approval of arrangements within the immediate family exception or arrangements within the financial institution exception that meet the additional conditions set forth in Rule 3240(b)(3). To extend these provisions to pre-existing arrangements, the proposed rule change would amend Rule 3240(b)(2) and (3) to provide that the member's procedures may also indicate that registered persons are not required to notify the member or receive member approval of such arrangements either prior to or subsequent to initiating a broker-customer relationship.
Finally, in response to comments received in response to
FINRA intends that a member's “reasonable assessment” and “reasonable determination” for purposes of proposed Rule 3240.06 would be informed by guidance that FINRA has already provided to members in
(1) any potential conflicts of interest in the registered person being in a borrowing or lending arrangement with a customer;
(2) the length and type of relationship between the customer and registered person;
(3) the material terms of the borrowing or lending arrangement;
(4) the customer's or the registered person's ability to repay the loan;
(5) the customer's age;
(6) whether the registered person has been a party to other borrowing or lending arrangements with customers;
(7) whether, based on the facts and circumstances observed in the member's business relationship with the customer, the customer has a mental or physical impairment that renders the customer unable to protect his or her own interests;
(8) any disciplinary history or indicia of improper activity or conduct with respect to the customer or the customer's account (
(9) any indicia of customer vulnerability or undue influence of the registered person over the customer.
This list is not intended to be exhaustive. Moreover, while a listed factor may not be applicable to a particular situation, the factors that a member considers should allow for a reasonable assessment of the associated risks so that the member can make a reasonable determination of whether to approve the borrowing or lending arrangement, modification to the borrowing or lending arrangement, or, where there is an existing borrowing or lending arrangement with a person who seeks to be a customer of the registered person, the broker-customer relationship. FINRA does not expect a registered person's assertion that the registered person or the customer has no viable alternative person from whom to
If the Commission approves the proposed rule change, FINRA will announce the effective date of the proposed rule change in a
FINRA believes the proposed rule change is consistent with the provisions of section 15A(b)(6) of the Act,
FINRA believes that, by strengthening and modernizing Rule 3240, the proposed rule change would enhance investor protection. The proposed rule change would reduce risks to investors through incremental adjustments that strengthen the general prohibition against borrowing and lending arrangements and narrow the few exceptions to the rule. In addition, the proposed rule change would facilitate compliance by clarifying the scope of the general prohibition and the personal relationship and business relationship exceptions.
FINRA does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
FINRA has undertaken an economic impact assessment, as set forth below, to further analyze the regulatory need for the proposed rule change, its potential economic impacts, including anticipated costs, benefits, and distributional and competitive effects relative to the current baseline, and the alternatives FINRA considered in assessing how best to meet its regulatory objective.
Rule 3240 generally prohibits registered persons from borrowing from or lending to their customers except when certain conditions are met, as specified in Rule 3240 and described above. Anecdotal evidence from member firms, law clinics, and previous enforcement cases—as well as FINRA's experience in examining and enforcing for compliance with Rule 3240—suggests that there is some ambiguity about the scope of Rule 3240 and certain risks to investors due to conflicts of interest and the superior information that registered persons have about potential risks and returns. As discussed further below, the proposed rule change would reduce ambiguity and aim to mitigate these risks.
The economic baseline for the proposed rule change is Rule 3240, members' existing internal procedures regarding borrowing from or lending to a customer, and the extent of investor protection and market efficiency that result. As of the end of 2022, there were 620,882 registered persons and 3,378 registered member firms that would be covered by the proposed rule change, in addition to the registered persons' customers.
Absent Rule 3240, borrowing or lending arrangements between registered persons and their customers would likely be more widespread and riskier due to conflicts of interest and the superior information that registered persons have about potential risks and returns. Rule 3240 generally prohibits these arrangements, and it establishes processes that may help mitigate the potential conflicts of interest in those arrangements that are within the exceptions. In this regard, registered persons may not enter into borrowing or lending arrangements that are within the rule's exceptions unless the registered person's member firm has written procedures allowing the borrowing or lending of money between such registered persons and their customers, and unless the registered person complies with any applicable notification and approval requirements. Members may adopt procedures that are stricter than Rule 3240. However, for purposes of conducting an economic analysis, FINRA does not have comprehensive information readily available about members' borrowing or lending policies or practices.
To understand the potential harm from impermissible borrowing or lending arrangements, FINRA reviewed final FINRA enforcement cases that involved findings of Rule 3240 violations. Between January 2018 and December 2021, there were an average of 15 such enforcement cases per year, totaling 58 cases over the four-year period.
Customer harm occurs if a loan from the customer is not repaid according to its terms,
FINRA also reviewed disclosures on Forms U4 and U5 of consumer-initiated, investment-related arbitrations, civil litigation or customer complaints (written or oral) that included allegations related to a registered person (or former registered person) borrowing money from or lending money to a customer. This information complements the information from the enforcement cases regarding the potential harm caused by impermissible borrowing or lending arrangements, although the disclosures do not necessarily indicate whether or how Rule 3240 was violated. From 2018 to 2021, there was a total of 100 such disclosures over the four-year period, which averaged to 23 disclosures per year. The number of such disclosures declined from 38 in 2018 to 19 in 2021. In 28 of the total 100 identified disclosures, the amount of the compensatory damages claim was not
The extent to which data concerning these consumer-initiated events may inform an economic baseline has some limitations. First, some disclosures allege harm caused by conduct
To supplement the quantitative analysis above, FINRA also considered its own experience with examining and enforcing for compliance with Rule 3240. Specifically, FINRA is concerned that some registered persons attempt to circumvent the current rule, using tactics such as timing a borrowing or lending arrangement to be entered into after terminating a broker-customer relationship, using other nominal borrowers such as a spouse or business entity of the registered person, or claiming a personal relationship that is not bona fide. For example, FINRA has detected instances in which the registered person re-assigned the customer to another registered person and then immediately entered into a borrowing arrangement with the former customer. These kinds of arrangements present the same kinds of conflicts of interest that Rule 3240 is intended to address, and, as such, also inform the economic baseline.
By extending the coverage of the rule's general prohibition, narrowing some exceptions, and clarifying certain aspects of the rule, the proposed rule change would result in fewer attempts by registered persons to enter into impermissible arrangements. For example, the expected cost of attempting to enter into a borrowing or lending arrangement that is not within the exceptions would be higher, as the likelihood of getting caught would increase when members, registered persons and customers have better information about permitted arrangements. Further, by reducing ambiguity regarding permissible borrowing or lending arrangements, a registered person who currently avoids a permissible and mutually beneficial borrowing or lending arrangement may be more comfortable entering into such an arrangement because of the proposed rule change.
The proposed rule change would prohibit some arrangements that are allowed under the current rule. For example, the general prohibition does not currently extend to arrangements entered into within six months after a broker-customer relationship ends; under the proposed rule change, it would. Additionally, the proposed rule change would narrow the personal relationship exception, prohibiting some of the arrangements that are permissible under the current rule. FINRA recognizes, however, that the proposed rule change may preclude arrangements that could be mutually beneficial to customers and registered persons and superior to alternative opportunities for borrowing or lending. Furthermore, requiring members to make a reasonable assessment of the risks and a reasonable determination of whether to approve the arrangement or new broker-customer relationship, as the case may be, may lead some members to disallow these arrangements altogether to avoid the cost of making the required assessments and determinations.
The long-term net impact of the proposed rule change on members' compliance costs is less clear. The proposed rule change would likely reduce registered persons' attempts to borrow based on the close personal relationship exception. Further, with the proposed modernized definition of “immediate family,” some arrangements that are currently within the personal relationship exception would instead be within the immediate family exception, of which members could choose not to require notification or approval. On the other hand, by clarifying that the rule covers arrangements that pre-exist the initiation of a broker-customer relationship and extending the rule six months after a broker-customer relationship is terminated, members would start receiving notice of the kinds of arrangements of which they are not currently receiving notice and would be required to evaluate whether to approve the arrangement or a new broker-customer relationship, as applicable. Additionally, members may incur additional costs of supervising and monitoring due to the extended time period that the proposed rule change covers. The extent of net savings or costs to members for compliance would depend on the relative prevalence of such cases and the additional monitoring costs.
The proposed rule change requiring members that receive notice of an arrangement to perform a reasonable assessment of the risks created by the arrangement could also raise members' compliance costs in the long term to the extent that members are not currently conducting these assessments. While the current rule requires members, upon receiving notice of an arrangement, to approve the arrangement in writing, the current rule does not require members to conduct a reasonable assessment of the risks of the arrangement prior to giving approval. Some members may already have a robust assessment process while some may have to adjust their process to comply with the proposed rule change. As a result, the compliance cost of the approval process for members that would have to make the adjustments could increase.
Members may also incur increased compliance costs in the short term. Specifically, members may need to update their written procedures in light of the proposed rule change given that Rule 3240 prohibits all arrangements unless the member has procedures permitting them. Members may also have to re-train their staff to become aware of the extended prohibitions, the modernized definition of “immediate family,” the proposed factors to consider for arrangements based on close personal relationships and business relationships, and the “reasonable assessment” and “reasonable determination” requirements. While the proposed rule
For members that are not already maintaining written notices and approvals of borrowing or lending arrangements that the proposed rule change would require, there would be additional operational costs. However, FINRA expects the incremental costs to be minimal, as the costs of making and keeping written records are trivial with digital technology.
FINRA considered generally prohibiting all borrowing or lending arrangements between registered persons and customers and eliminating the existing exceptions. FINRA does not propose a complete prohibition for several reasons. As an initial matter, Rule 3240 already contains a general prohibition, and the proposed rule change would strengthen it, by clarifying that it applies to pre-existing arrangements, extending the time period over which the rule would apply, adopting supplementary material that addresses conduct by registered persons regarding arrangements with persons related to the registered person or to the customer, and narrowing some exceptions.
Moreover, as discussed below, FINRA determined that the enumerated exceptions in Rule 3240, with the proposed rule change described above, are for limited situations where the likelihood that the registered person and customer entered into the borrowing or lending arrangement by virtue of the broker-customer relationship is reduced, and the potential risks are outweighed by the potential benefits of allowing registered persons to enter into arrangements with such customers.
The proposed rule change was published for comment in
The comments and FINRA's responses are set forth in detail below.
Three commenters expressed support for the proposal in
NASAA and Malecki did not support the proposal in
During the retrospective review of Rule 3240, while some stakeholders also suggested that all borrowing and lending arrangements should be prohibited, others commented that the rule has appropriate exceptions or that the rule should have stronger controls short of a complete prohibition.
First, Rule 3240 already contains a general prohibition that the proposed rule change would strengthen by extending the period over which the rule would apply, clarifying that the prohibition applies to pre-existing arrangements, and narrowing some of the exceptions. Second, FINRA believes
FINRA does not believe that NASAA's model rule concerning the unethical business practices of broker-dealers and agents warrants changing the general approach of Rule 3240 as a general prohibition with narrow exceptions and associated protections. As explained above, one of the paragraphs in the NASAA model rule prohibits broker-dealer agents from engaging in the practice of borrowing or lending money or securities from a customer. Although some states have adopted that paragraph of the NASAA model rule verbatim,
In addition, NASAA commented that all borrowing and lending arrangements should be prohibited because the conflicts of interest that such arrangements create cannot be mitigated by member firm policies and procedures. NASAA contended that its position is consistent with the Commission's approach regarding certain other broker-dealer conflicts of interest. In this regard, NASAA wrote that the Commission recognized in the context of Regulation Best Interest (“Reg BI”) that some conflicts are so pervasive that they cannot reasonably be mitigated and must be eliminated in their entirety. NASAA contended that the direct personal incentives inherent in borrowing and lending arrangements, and the desire to collect or the duty to pay a customer, are of equal if not greater concern.
FINRA believes that the regulatory approach used in Rule 3240 is generally consistent with the approach the Commission took with Reg BI. Reg BI establishes a standard of conduct for broker-dealers and associated persons when they make a recommendation to a retail customer of any “securities transaction or investment strategy involving securities.”
In addition, NASAA suggested that FINRA should clarify that members may impose more stringent controls up to and including a total prohibition of borrowing and lending arrangements. When FINRA proposed to adopt Rule 3240 as part of the consolidated FINRA rulebook, it indicated that members can choose to permit registered persons to borrow money from or lend money to their customers consistent with the requirements of the rule or may be more restrictive, including prohibiting borrowing or lending arrangements in whole or in part.
NASAA recommended eliminating the immediate family exception because elder financial exploitation is often perpetrated by family members. NASAA also contended that, if the current rule framework is maintained, notification and approval should be required for arrangements with immediate family members, particularly where the customer is a senior or may otherwise be a vulnerable adult under applicable
Except for proposing to modify the definition of “immediate family,” FINRA does not propose to amend the existing immediate family exception or require notice and approval of arrangements with immediate family members. As explained above, the narrow exceptions to the rule—including for arrangements with immediate family members—are for situations where FINRA believes the likelihood that the registered person has borrowed from or lent money to a customer by virtue of the broker-customer relationship is reduced, and the rule contains additional protections that restrict a registered person's ability to enter into an arrangement within the exceptions.
FINRA believes that Malecki's suggestion to limit the immediate family exception to educational debt for children would narrow the exception too much. There are numerous other examples of beneficial borrowing or lending arrangements between immediate family members, including senior family members.
FINRA also reiterates that a registered person is prohibited from entering into a borrowing or lending arrangement with a customer who is an immediate family member, including one who is a senior investor, unless the member adopts written procedures permitting such arrangements. As explained above, members may choose to prohibit all borrowing and lending arrangements, allow only some of the exceptions enumerated in Rule 3240(a)(2), or impose limitations on the exceptions. FINRA believes that, by strengthening the general prohibition and narrowing its exceptions, the proposed rule change would further protect all investors, including senior investors.
Several commenters addressed the personal relationship and business relationship exceptions. Malecki commented that these two exceptions are too broad. Likewise, University of Pittsburgh requested that Rule 3240 limit the business relationship exception to the financial industry and noted that a registered person getting regular haircuts from a hairstylist should not fit within the business relationship exception. University of Pittsburgh also requested that FINRA provide examples of qualifying business relationships and more information about whether a business relationship qualifies for the exception. On this last point, University of Pittsburgh suggested that useful factors may include (1) the financial risks for the parties; (2) the industry involved; and (3) any other factor that may help determine the trust established between the parties and the comparative risks of their past business practices and their potential borrower-lender agreements.
FINRA shares some of these concerns and accordingly has proposed to narrow the personal relationship exception and to provide factors that are relevant to assessing whether a relationship falls within the scope of either exception. Beyond what FINRA proposed in
FINRA does not believe, however, that additional changes to the personal and business relationship exceptions are warranted. The personal relationship exception, as proposed to be amended, would not permit “virtually anyone” to enter into a borrowing or lending arrangement.
Likewise, FINRA believes that the business relationship exception, as proposed to be amended, is appropriately tailored. Rule 3240 currently requires that the qualifying business relationships be “outside of the broker-customer relationship.” This language serves to separate the business relationship from the broker-customer relationship, and thus mitigate the potential conflict of interest. The proposed rule change would further narrow this exception by requiring that the business relationship be “bona fide.” FINRA does not believe that the “business relationship” exception should be further limited to only the financial industry. There is no indication that the risks related to arrangements based on a bona fide business relationship turn on the industry or sector involved.
With respect to University of Pittsburgh's suggested factors, FINRA notes that the proposed rule change would require members, when receiving written notice under Rule 3240, to
Under the proposed rule change, the rule's prohibition would extend to arrangements with any customer who, within the previous six months, had a securities account assigned to the registered person at any member firm.
The Rule 4111 lookback periods (including, among others, the one-year lookback period that pertains to “Registered Persons In-Scope”
NASAA suggested that members should be required to incorporate specific supervisory procedures for assessing, and after approving, a borrowing or lending arrangement. Specifically, NASAA commented that the member should be required to document (1) the steps it undertook to assess the risk prior to approving the arrangement; (2) the steps it will take to minimize the conflict of interest; (3) how it communicated to the customer the risk created by the lending arrangement or repayment terms so that the customer appreciates the risk; and (4) an outline of the supervisory measures that it will take. Regarding the member's assessment of a borrowing or lending arrangement, NASAA contended that the rule should require members to evaluate borrowing and lending arrangements, and that the member's assessment should include an interview (preferably by a compliance officer) with the customer outside of the presence of the registered person or, where that is not possible, other verification that the customer benefits from and entered into the arrangement on his or her own volition and without pressure. Regarding supervision after approving an arrangement, NASAA commented that members should closely monitor the account of a customer who is a party to a borrowing or lending arrangement and impose formal conditions, apply heightened scrutiny to these accounts on an ongoing, annual review basis, place the registered person on heightened supervision, and conduct additional reviews on trades and transactions to ensure that recommendations are suitable. Similarly, Malecki commented that all loans except for educational debt for children should be supervised, and that “supervision of loans” should be aligned with FINRA rules regarding outside business activities and private securities transactions.
The fundamental approach of FINRA's supervision rule is to require members to establish and maintain a system to supervise the activities of each associated person that is “reasonably designed” to achieve compliance with applicable securities laws and regulations, and with applicable FINRA rules.
In response to the comments, however, FINRA is proposing stronger controls for when a member considers whether to approve a borrowing or lending arrangement or, where there is a pre-existing borrowing or lending arrangement, a new broker-customer relationship—specifically, the proposed requirement that a member, upon receiving written notice under Rule 3240, perform a “reasonable assessment” of the risks and a “reasonable determination” of whether to approve the arrangement or new broker-customer relationship, as the case may be.
In a related comment, NASAA suggested that FINRA should require registered persons, at a minimum, to disclose to customers the factors listed in the guidance provided in
NASAA commented that applying the proposed rule change retroactively could provide benefits to investors and recommended retroactive disclosure of pre-existing borrowing and lending arrangements.
In
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to file number SR-FINRA-2024-001 and should be submitted on or before February 12, 2024.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Under the Investment Company Act of 1940 (15 U.S.C. 80a-1
The purpose of Form N-54A is to notify the Commission that the investment company making the notification elects to be subject to Sections 55 through 65 of the Investment Company Act, enabling the Commission to administer those provisions of the Investment Company Act to such companies.
The Commission estimates that on average approximately 21 business development companies file these notifications each year. Each of those business development companies need only make a single filing of Form N-54A. The Commission further estimates that this information collection imposes a burden of 0.5 hours, resulting in a total annual PRA burden of 10.5 hours. Based on the estimated wage rate, the total cost to the business development company industry of the hour burden for complying with Form N-54A would be approximately $4,462.50.
The collection of information under Form N-54A is mandatory. The information provided by the form is not kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
60-Day notice and request for comments.
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) requires Federal agencies to publish a notice in the
Submit comments on or before March 22, 2024.
Send all comments by email to Tamara Jennings, Sr. Loan Specialist, Office of Financial Assistance, Small Business Administration at
Tamara Jennings, Sr. Loan Specialist, (202) 205-6674,
For SBA financial assistance programs, SBA Form 413 Personal Financial Statement (PFS) collects information regarding the assets and liabilities of certain owners, officers and guarantors of the small business applicant benefiting from such assistance and is used when analyzing the applicant's repayment abilities or creditworthiness. SBA's Surety Bond Guaranty Program uses the Form 413 PFS information during the claim recovery process. The information is also collected from applicants and participants in SBA's 8(a) Business Development (BD) and Women-Owned Small Business (WOSB) Program certification process to determine
All program offices use the same Form 413. SBA plans to revise and clarify the instructions for the Form 413 to ensure the public will be aware of the specific submission process for each program office. SBA will update the Form 413 to include recent rule and policy updates related to its thresholds for inflation. Lastly, the Form 413 may undergo additional formatting changes to make it easier to address mandatory Federal government 508 accessibility compliance.
SBA is requesting comments on (a) Whether the collection of information is necessary for the Agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of Illinois (FEMA-4749-DR), dated 11/20/2023.
Issued on 01/16/2024.
Alan Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for the State of Illinois, dated 11/20/2023, is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 02/09/2024.
All other information in the original declaration remains unchanged.
Pursuant to section 408(a) of the International Religious Freedom Act of 1998 (Pub. L. 105-292), as amended (the Act), notice is hereby given that, on December 29, 2023, the Secretary of State, under authority delegated by the President, has designated each of the following as a “country of particular concern” (CPC) under section 402(b) of the Act, for having engaged in or tolerated particularly severe violations of religious freedom: Burma, China, Cuba, Eritrea, Iran, the Democratic People's Republic of Korea, Nicaragua, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan. The Secretary simultaneously designated the following as satisfying the requirement to take Presidential Action for these CPCs:
For Burma, the existing ongoing restrictions referenced in 22 CFR 126.1, pursuant to section 402(c)(5) of the Act;
For the People's Republic of China, the existing ongoing restriction on exports to China of crime control or detection instruments or equipment, under the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991 (Pub. L. 101-246), pursuant to section 402(c)(5) of the Act;
For Cuba, the existing ongoing restrictions referenced in 31 CFR 515.201 and the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (Helms-Burton Act), pursuant to section 402(c)(5) of the Act;
For the Democratic People's Republic of Korea, the existing ongoing restrictions to which the Democratic People's Republic of Korea is subject, pursuant to sections 402 and 409 of the Trade Act of 1974 (the Jackson-Vanik Amendment), and pursuant to section 402(c)(5) of the Act;
For Eritrea, the existing ongoing restrictions referenced in 22 CFR 126.1, pursuant to section 402(c)(5) of the Act;
For Iran, the existing ongoing travel restrictions in section 221(c) of the Iran Threat Reduction and Syria Human Rights Act of 2012 (TRA) for individuals identified under section 221(a)(1)(C) of the TRA in connection with the commission of serious human rights abuses, pursuant to section 402(c)(5) of the Act;
For Nicaragua, the existing ongoing restrictions referenced in section 5 of the Nicaragua Investment Conditionality Act of 2018; (the NICA Act)
For Pakistan, a waiver as required in the “important national interest of the United States,” pursuant to section 407 of the Act;
For Russia, the existing ongoing sanctions issued for individuals identified pursuant to section 404(a)(2) of the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 and section 11 of the Support for the Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine Act of 2014, as amended by Section 228 of the Countering America's Adversaries Through Sanctions Act, pursuant to section 402(c)(5) of the Act;
For Saudi Arabia, a waiver as required in the “important national interest of the United States,” pursuant to section 407 of the Act;
For Tajikistan, a waiver as required in the “important national interest of the United States,” pursuant to section 407 of the Act; and
For Turkmenistan, a waiver as required in the “important national interest of the United States,” pursuant to section 407 of the Act.
In addition, the Secretary of State has designated the following countries as “special watch list” countries for engaging in or tolerating severe violations of religious freedom: Algeria, Azerbaijan, the Central African Republic, Comoros, and Vietnam.
Pursuant to section 408(a) of the International Religious Freedom Act of 1998 (Pub. L. 105-292), notice is hereby given that, on December 29, 2023, the Secretary of State, under authority delegated by the President, has designated each of the following as an “entity of particular concern” under section 301 of the Frank R. Wolf International Religious Freedom Act of 2016 (Pub. L. 114-281), for having engaged in particularly severe violations
Carter Allen, Office of International Religious Freedom, U.S. Department of State, (Phone: (202) 718-1792 or Email:
Federal Highway Administration (FHWA), DOT.
Notice of request for extension of currently approved information collection.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for renewal of an existing information collection that is summarized below under
Please submit comments by March 22, 2024.
You may submit comments identified by DOT Docket ID Number 0003 by any of the following methods: website: For access to the docket to read background documents or comments received go to the Federal eRulemaking Portal: Go to
Scott Gable, 202-366-2176, Office of Safety, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, between 7:30 a.m. to 4:30 p.m., Monday through Friday, except Federal holidays.
The existing provisions of Title 23 U.S.C. 130, Railway-Highway Crossings Program, as well as implementing regulations in 23 CFR part 924, remain in effect. Included in these combined provisions are requirements for State DOTs to annually produce and submit to FHWA by August 31 reports related to the implementation and effectiveness of their HSIPs, that are to include information on: (a) progress being made to implement HSIP projects and the effectiveness of these projects in reducing traffic fatalities and serious injuries [Sections 148(h)]; and (b) progress being made to implement the Railway-Highway Crossings Program and the effectiveness of the projects in that program [Sections 130(g) and 148(h)], which will be used by FHWA to produce and submit biennial reports to Congress. To be able to produce these reports, State DOTs must have safety data and analysis systems capable of identifying and determining the relative severity of hazardous highway locations on all public roads, based on both crash experience and crash potential, as well as determining the effectiveness of highway safety improvement projects. FHWA provides an online reporting tool to support the annual HSIP reporting process. Additional information is available on the Office of Safety website at
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of limitation on claims for judicial review of actions by the California Department of Transportation (Caltrans).
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans that are final. The actions relate to a proposed highway project, on State Route 99 from post miles 56.4-57.6 in Kern County and post miles 0.0-13.5 in Tulare County, State of California. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency
For Caltrans: Javier Almaguer, Senior Environmental Scientist, 2015 East Shields Avenue, Suite 100, Fresno, California 93726, (559) 287-9320,
Effective July 1, 2007, the Federal Highway Administration (FHWA) assigned, and the California Department of Transportation (Caltrans) assumed, environmental responsibilities for this project pursuant to
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Assessment/Finding of No Significant Impact (FONSI) for the project, approved on September 11, 2023, and in other documents in the project records. The FEA, FONSI, and other project records are available by contacting Caltrans at the address provided above. The Caltrans FEA and FONSI can be viewed and downloaded from the project website at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of limitation on claims for judicial review of actions by the California Department of Transportation (Caltrans).
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans, that are final. The actions relate to a proposed highway project, on State Route 99 from post miles 25.2 to post mile 30.6 in Tulare County, State of California. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before June 20, 2024. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
For Caltrans: Javier Almaguer, Senior Environmental Scientist, 2015 East Shields Avenue, Suite 100, Fresno, California 93726, (559) 287-9320,
Effective July 1, 2007, the Federal Highway Administration (FHWA) assigned, and the California Department of Transportation (Caltrans) assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that the Caltrans, have taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, and approvals for the following highway project in the State of California: Caltrans proposes to widen State Route 99 in the City of Tulare from just south of the Avenue 200 Overcrossing to the Prosperity Avenue Overcrossing (post miles 25.2 to 30.6). One lane would be built in each direction in the freeway median to create a six-lane freeway. The existing interchange at Paige Avenue would be reconstructed to a tight diamond layout and two roundabouts would be constructed on Paige Avenue at Blackstone Street and Laspina Street. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Assessment/Finding of No Significant Impact (FONSI) for the project, approved on December 29, 2023, and in other documents in the project records. The FEA, FONSI, and other project records are available by contacting Caltrans at the address provided above. The Caltrans FEA and FONSI can be viewed and downloaded from the project website at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. FMCSA requests OMB's renewed approval to the ICR titled “Practices of Household Brokers,” which applies to household goods (HHG) brokers who are procured by the public (HHG shippers) to arrange the transportation of the shipper's household goods by HHG motor carriers. This renewal updates wage related costs that have changed since the last approval and revises the previous information collection total respondent hourly and cost burden.
Comments on this notice must be received on or before March 22, 2024.
You may submit comments identified by Docket Number FMCSA-2023-0180 using any of the following methods:
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To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
Donnice Wagoner, Commercial Enforcement and Investigations Division, DOT, FMCSA, West Building 6th Floor MC-SEI, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; (202) 366-8045;
All submissions must include the Agency name and docket number. For detailed instructions on submitting comments, see the Public Participation heading below. Note that all comments received will be posted without change to
If you submit a comment, please include the docket number for this notice (FMCSA-2023-0180), indicate the specific section of this document to which your comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so FMCSA can contact you if there are questions regarding your submission. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard, or print the acknowledgement page that appears after submitting comments online.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
Comments received after the comment closing date will be included in the docket and will be considered to the extent practicable.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
As a result of Title IV, Subtitle B of the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59) and a petition for rulemaking from the American Moving and Storage Association (AMSA), FMCSA amended then-existing regulations for brokers in a final rule titled, “Brokers of Household Goods Transportation by Motor Vehicles,” (75 FR 72987, Nov. 29, 2010), amending 49 CFR part 371 by providing additional consumer protection responsibilities for brokers of HHG.
Section 4212 of SAFETEA-LU directs the Secretary of Transportation to require HHG brokers to provide shippers with information throughout the various stages of their interactions with shippers. The following phases summarize the information collection required by the HHG broker at the various contractual stages by 49 CFR 371.
When a HHG shipper is looking to procure a HHG broker's services, the broker must collect the following information and display it on its websites and solicitation materials:
• Its physical address (§ 371.107a);
• Its U.S. DOT license numbers (§ 371.107b);
• A statement indicating it will not transport the shipper's goods but will only arrange for goods to be transported by a registered motor carrier (§ 371.107c);
• If the broker chooses to publish rates on its website or solicitation materials, the broker must also publish a statement that the rates are based on a motor carrier's publicly available rates (§ 371.107d);
• If broker chooses to publish a list of motor carriers it works with, the list must be a list only of carriers with which brokers have agreements (§ 371.107e); and
• Brokers must publish information regarding their cancellation policies, including information on deposits and refunds (§ 371.117a).
For the exact text of regulations see section 12 part I of this document.
When an HHG shipper makes a reasonable request seeking additional information about broker services, the HHG broker must collect the following information and distribute it to the HHG shipper:
• A list of carriers it has agreements with (§ 371.109a); and
• A statement indicating the broker is not a carrier and that the broker is only arranging transportation of shipper's goods (§ 371.109b).
For the exact text of regulations see Section 12 Part II.
When an HHG shipper requests an estimate, the broker must collect the following information and provide it to the shipper:
• FMCSA's published information material: (1) “Ready to Move? Tips for a Successful Interstate Move” and (2) “Your Rights and Responsibilities When You Move (2022 Update)” (§ 371.111a1, 2, and 3);
• A written estimate based on a physical survey of household items (§ 371.113a) and published carrier rates (§ 371.113b); and
• If applicable, a “Waiver” receipt showing shipper waived their right to a physical survey of their household items (§ 371.113b).
The broker must obtain a signed document showing that FMCSA's published information material was received by the shipper (§ 371.111c). For the exact text of regulations see section 12 part III.
Should the shipper find the estimate(s) and broker services reasonable and wish to book the broker's services, the two parties must enter into an agreement. At this point it is standard practice for shippers to pay a deposit or full payment. Before a deposit is collected, the broker must collect the following information and distribute it to the HHG shipper:
• An agreement document with required specifications as laid out by regulation § 371.115; and
• An agreement document which highlights the broker's and/or motor carrier's refund policy for cancelation of agreements (§ 371.117a).
For the exact text of regulations see section 12 part IV.
After the broker confirms delivery of the household goods by the carrier, the broker must collect the following information and distribute it to the HHG shipper:
• A receipt with transaction data, including cancelation details if the agreement was canceled as laid out by 49 CFR 371.3.
The complete collection of information, required by the referenced regulations, assists shippers in their business dealings with interstate HHG brokers. The information collected is used by prospective shippers to make informed decisions about contracts, services ordered, executed, and settled. The HHG broker is often the primary contact for individual shippers and in the best position to educate shippers and prepare them for a successful move. The information collection is intended to combat deceptive business practices; the information helps enforcement personnel better protect consumers by verifying that shippers are receiving information as required by regulations.
FMCSA revises the total annual burden to 86,488 hours. This is an increase of 13,680 annual burden hours from the currently approved 72,808 burden estimate. The increase is due to the following:
(1) FMCSA's records for household goods brokers increased from 652 brokers to 1,256 brokers.
Issued under the authority of 49 CFR 1.87.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, this notice announces that FRA is forwarding the Information Collection Request (ICR) abstracted below to the Office of Management and Budget (OMB) for review and comment. The ICR describes the information collection and its expected burden. On July 21, 2023, FRA published a notice providing a 60-day period for public comment on the ICR.
Interested persons are invited to submit comments on or before February 21, 2024.
Written comments and recommendations for the proposed ICR should be sent within 30 days of publication of this notice to
Ms. Arlette Mussington, Information Collection Clearance Officer, at email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages.
FRA received several comments from labor organizations, individuals (including a railroad employee), the National Railroad Passenger Corporation (Amtrak), and interested coalitions that strongly support this proposed ICR. Noting their safety concerns with long trains, the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation workers (SMART-TD), the Transportation Trades Department of the AFL-CIO (TTD), an individual railroad employee, and the Illinois Commerce Commission (ICC) provided feedback regarding the steady and significant increase of long train lengths and noted that railroads already retain some of the data FRA is proposing to collect. SMART-TD commented that “tracking the lengths and tonnage of all freight trains will take this information from the realm of anecdotal to actionable.” Further, TTD commented that, “This information collection request comes at a time of widespread safety issues in the freight rail industry” and “We commend FRA for moving forward with this ICR and request that the agency consider our recommended additions to the proposed reporting requirements.” Amtrak noted that freight traffic has a major impact on the performance of Amtrak's trains and that increasingly long freight trains have exacerbated these problems. The prevailing opinion of these supportive commenters is that this proposed collection of information on train length is essential to understanding how to improve the safe and efficient operation of long trains.
In expressing support for this ICR, various commenters encouraged FRA to collect additional categories of information. For example, a group of nine urban Chicago communities, identified as the Coalition to Stop CPKC, recommended that the monthly data be presented in a format that allows interested parties to determine increasing train lengths in key regional areas. TTD encouraged FRA to consider collecting data related to train weight distribution, the number of buffer cars between hazardous materials shipments and crew member locations, and the presence of distributed power units (DPUs).
FRA did not add these categories because requiring respondents to provide this additional information without further FRA review, could create additional requirements that are beyond the initial purpose of this information collection. Similarly, commenter recommendations to include variables, such as delays to emergency responders due to blocked crossings and establishing a retroactive baseline year, are not being considered at this time. FRA directs commenters to field IDs F22 through F24.C of Form FRA F 6180.277, which request blocked crossing information. Once the ICR has been approved, FRA will review the data collected and consider adding additional data categories in the future.
Two individuals commented that the proposed ICR creates an excessive paperwork burden on respondents and that they do not believe FRA will be able to process and analyze the collected data in a timely manner. These commenters also asserted they do not believe FRA is avoiding duplicative collections by reviewing train length data collected on Form FRA F 6180.54. FRA is cognizant of the increased paperwork burdens that collecting this type of data create and has incorporated several measures to minimize them. As an example, FRA notes that reviewing train length information from existing Form FRA F 6180.54 under the Special Study Block 49a data field, rather than collecting the data on Form FRA F 6180.277, will avoid duplicative collections. When developing this proposed ICR, FRA considered the volume of data to be collected and the agency's capability to collect, analyze, and review it. Additionally, FRA's estimate of 40 minutes per month for the average time per response, or 8 hours annually, is based on data-compiling methods already in use by Class I railroads for other FRA reporting requirements. Furthermore, FRA agrees with the ICC's comment that the burden will be manageable and will decrease over time once a railroad has established the protocol to collect, if the railroad does not already do so, and present this data.
FRA received comments that the ICR does not define what constitutes “emergency”, and “communication event losses”. FRA addressed this comment by revising field ID F12, to include reference to 49 CFR 220.13 to define “emergency events”. “Communication loss events” are described in field IDs F13 through F15.C of Form FRA F 6180.277. Commenters also asserted that FRA should collect data on broken drawbars and that FRA omitted the word “certification” with respect to engineer certification revocations.
In response to this feedback, and upon further review, FRA agrees with the recommendation to collect data on broken drawbars as part of the “draft system.”
FRA also acknowledges the omission of the word “certification” and is updating the language throughout Form FRA F 6180.277 from “engineer revocations” to “engineer certification revocations”. FRA has uploaded the updated form in the PRA docket referenced above at
The Coalition to Stop CPKC commented that FRA is silent on the extent to which the reported data would be publicly available. FRA is planning to analyze the collected data and may publicly share the data or FRA's analysis in reports, testimony, or other safety-related agency actions.
In the proposed ICR, FRA stated that the proposal would require Class I
Before OMB decides whether to approve this proposed collection of information, it must provide 30 days' notice for public comment. Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published.
The 30-day notice both informs and gives the regulated community the opportunity to file relevant comments and affords the agency adequate time to digest public comments before it renders a decision.
Comments are invited on the following ICR regarding: (1) whether the information collection activities are necessary for FRA to properly execute its functions, including whether the information will have practical utility; (2) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (3) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (4) ways to minimize the burden of information collection activities on the public, including the use of automated collection techniques or other forms of information technology.
The summary below describes the ICR that FRA will submit for OMB clearance as the PRA requires:
In the Safety Advisory, FRA also explained that, in 2019, the U.S. Government Accountability Office (GAO) issued a report finding that freight-train length, particularly for Class I railroads, increased in recent years.
In the Safety Advisory, FRA also indicated that it was in the process of conducting research on the operational complexities of longer trains, including air brake system performance and resulting train dynamics.
As a next step, FRA is initiating a new ICR to gather train length data from Class I freight railroads as the safety concerns associated with long trains largely focus on these railroads.
The data collection is necessary to create an industry-wide database that will allow FRA to make objective
FRA has incorporated several measures to minimize respondents' paperwork burden in this proposed collection. For example, to avoid duplicating efforts, FRA is not asking railroads to provide train length information for any FRA-reportable accident or incident for which a Form FRA F 6180.54 is filed. Instead, for any train involved in an accident for which a Form FRA F 6180.54 is filed, FRA will review train length data collected on that form and will not seek to collect the same data proposed in this collection.
As provided by Congress to the Secretary of Transportation, and as delegated, FRA has broad statutory authority to oversee matters related to rail safety.
FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information that does not display a currently valid OMB control number.
United States Mint, Department of the Treasury.
Notice.
The United States Mint is setting prices for the Liberty & Britannia Products.
Ann Bailey, Sales and Marketing, United States Mint, 801 9th Street NW, Washington, DC 20220; or call 202-354-7500.
United States Mint, Department of the Treasury.
Notice.
The United States Mint announces pricing for the Liberty & Britannia 24K High Relief Gold Proof Coin on the 2024 Pricing of Numismatic Gold, Commemorative Gold, Platinum, and Palladium Products Grid.
The complete 2024 Pricing of Numismatic Gold, Commemorative Gold, Platinum, and Palladium Products Grid will be available online at
Pricing can vary weekly dependent upon the London Bullion Market Association gold, platinum, and palladium prices weekly average. The pricing for all United States Mint numismatic gold, platinum, and palladium products is evaluated every Wednesday and modified as necessary.
Ann Bailey, Sales and Marketing Directorate, United States Mint, 801 9th Street NW, Washington, DC 20220; or call 202-354-7500 or
Federal Emergency Management Agency, DHS.
Interim final rule.
The Federal Emergency Management Agency (FEMA) is publishing this interim final rule (IFR) amending its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program.
You may submit comments, identified by Docket ID: FEMA-2023-0003, via the Federal eRulemaking Portal:
Kristina McAlister, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472. Phone: 866-826-8751 or email:
We encourage you to participate in this rulemaking by submitting comments and related materials. We will consider all comments and materials received during the comment period.
If you submit a comment, identify the agency name and the Docket ID for this rulemaking, indicate the specific section of this document to which each comment applies, and give the reason for each comment. All submissions will be posted, without change, to the Federal e-Rulemaking Portal at
The Federal Emergency Management Agency (FEMA) is publishing this interim final rule (IFR) amending its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. Specifically, the IFR increases eligibility for home repair assistance by amending the definitions and application of the terms safe, sanitary, and functional, allowing assistance for certain accessibility-related items, and amending its approach to evaluating insurance proceeds; allows for the re-opening of the applicant registration period when the President adds new counties to the major disaster declaration; simplifies the documentation requirements for continued temporary housing assistance; simplifies the appeals process; simplifies the process to request approval for a late registration; removes the requirement to apply for a Small Business Administration (SBA) loan as a condition of eligibility for Other Needs Assistance (ONA); and establishes additional eligible assistance under ONA for serious needs, displacement, disaster-damaged computing devices and essential tools for self-employed individuals. FEMA also makes revisions to reflect changes to statutory authority that have not yet been implemented in regulation, to include provisions for utility and security deposit payments, lease and repair of multifamily rental housing, child care assistance, maximum assistance limits, and waiver authority.
FEMA is responsible for administering and coordinating the Federal Government response to Presidentially declared disasters pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (Stafford Act), Public Law 93-288, 42 U.S.C. 5121
One of those types is “Federal Assistance to Individuals and Households” governed by section 408 of the Stafford Act, which authorizes FEMA to provide financial assistance and direct services to individuals and households who, as a direct result of a major disaster, have necessary expenses and serious needs in cases in which the individuals and households are unable to meet such expenses or needs through other means. 42 U.S.C. 5174. FEMA refers to this assistance as the Individuals and Households Program (IHP).
Section 408 categorizes IHP into two provisions of assistance: Housing Assistance (HA) and ONA. Housing Assistance is available for individuals and households who are displaced from their pre-disaster primary residences
ONA is financial assistance FEMA makes available to individuals and households adversely affected by a disaster to address their necessary expenses and serious needs.
As detailed further below, section 1212 of the Disaster Recovery Reform Act of 2018, Public Law 115-254, 132 Stat. 3448 (Oct. 5, 2018) amended Section 408(h) to establish separate caps for each category of assistance. Currently, the maximum amount of IHP HA and ONA financial assistance for any single emergency or major disaster is $42,500.
FEMA may only provide housing assistance for a period not to exceed 18 months from the date of the major disaster declaration, although it may extend this period of assistance if it determines that due to extraordinary circumstances an extension would be in the public interest. 42 U.S.C. 5174(c)(1)(B)(iii); 44 CFR 206.110(e). FEMA is required to ensure it has systems in place to allow it to verify the identity and address of recipients for assistance, minimize the risk of making duplicate or fraudulent payments, collect any duplicate payments, provide instructions to individuals detailing the proper use of assistance, and conduct an expedited and simplified review and appeal process for individuals denied assistance. 42 U.S.C. 5174(i).
FEMA is required to ensure that the disaster assistance it provides is not a duplication of benefits with any other program or from insurance or any other source. 42 U.S.C. 5155(a). FEMA has set forth a regulatory delivery sequence at 44 CFR 206.191(d) which was further clarified in its Individual Assistance Program and Policy Guide (IAPPG)
Climate change—changes in the average or variability of weather conditions that persist over long time scales (
The issue of climate change impacts and implementing solutions is incredibly challenging and complex. Climate change poses a direct threat to the security of our Nation in the form of increasingly severe and unpredictable storms, flooding, and wildfires that disproportionately impact some of
The Nation is no stranger to historic and costly hurricane seasons. The 2017 Atlantic hurricane season was one of the most active in U.S. history; between April and November, there were 17 named storms, with 10 becoming hurricanes.
Presently coastal areas globally face land loss, repeat flooding, and storm surges, affecting coastal populations.
As climate change threatens to bring more extreme events like increased floods, sea level rise, and intensifying droughts and wildfires, is our responsibility to better prepare and support communities, families, and businesses before, during, and after disasters. Here, in light of the increasing climate-related disasters facing the Nation, FEMA issues amendments to the Individuals and Households Program to ensure that it meets the increasing need for assistance to individuals and families recovering from disasters.
There have been numerous assertions over the years that IHP disproportionately benefits higher income households over lower income households.
In July 2019, FEMA completed Phase 1 of the project.
The data proved to be more varied at the assistance type level. FEMA compared the rate of applicants referred to IHP for further consideration,
The data received indicates that lower income households were referred for assistance at a higher
In November 2019, FEMA completed Phase 2 of the project in which it focused on additional analysis of the data to determine the cause of the variance in results between lower and higher income applicants. FEMA found that: (1) higher income households were less likely to receive an award for home repair/replacement assistance because they were more likely to have insurance which covered their losses; (2) lower income households received lower award amounts for home repair/replacement because they had lower Real Property FEMA Verified Loss (RPFVL),
On January 20, 2021, President Joseph R. Biden signed Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities
Consistent with those Executive Orders and to gain additional information on the issues identified in the 2019 income project, on April 22, 2021, FEMA published a Request for Information (RFI) on FEMA Programs, Regulations, and Policies.
FEMA held public meetings and extended the comment period on the RFI to ensure all interested parties had sufficient opportunity to provide comments on FEMA's programs.
Comments on the RFI that are relevant to the IHP issues addressed in this rule are discussed below. Comments regarding other IA programs outside of IHP, such as Disaster Legal Services, other FEMA program areas, such as Public Assistance, or that were otherwise not directly relevant to this rule, are not discussed.
A few commenters raised issues regarding the registration deadline for FEMA programs, arguing that the current deadline posed difficulties for applicants—particularly for applicants from underserved populations—and should be extended.
We do not agree that a registration deadline discourages disaster survivors from registering. Rather, it provides clear submission timeframes to help disaster applicants.
FEMA's regulations, at 44 CFR 206.112, provide that the standard registration period is 60 days following the date that the President declares an incident a major disaster or an emergency. FEMA may extend the registration period when the State
FEMA required the applicant to submit a letter, signed by the applicant or person who the applicant authorizes to act on their behalf, explaining the extenuating circumstances that prevented them from applying for assistance in a timely manner. Acceptable documentation included record of hospitalization, illness, or disability of the applicant or an immediate family member; record of death for an immediate family member; or proof of personal or business travel that kept the applicant out of the area for the full registration period.
Based on comments indicating that the level of documentation required to justify a late application is inappropriate and unnecessary, FEMA is removing the requirement to provide documentation. FEMA agrees that the late application process should be simplified to reduce the burden on disaster survivors. Therefore, under this rule, FEMA will only require that registrants explain the reason for the delay. This change is discussed in more detail in the section-by-section analysis, below.
FEMA believes these changes are needed to the current regulations to allow individual applicants to more easily submit a late application, but the regulations are generally sufficient to ensure the majority of disaster survivors have an adequate opportunity to register for assistance during the registration period. FEMA reaches out to survivors and communities after disasters using multiple tools, teams, and tactics to help applicants register for assistance, to include placing staff who can register applicants in disaster impacted areas and shelters.
Data shows that over the last 10 years, the registration period was extended past the initial 60 days authorized in 44 CFR 206.112(a) in 42 percent of Individual Assistance (IA) declarations. In 44 CFR 206.112(b), FEMA still retains the ability to extend the registration period on an as-needed basis. FEMA, in coordination with a State, Tribal, or Territorial (STT) government, can extend the registration period when there are wide-spread obstacles that may delay or impede disaster survivors' ability to register, while maintaining the authority to accept late registrations from disaster survivors who may have specific, individual circumstances that impact their opportunity to register.
Numerous commenters provided general statements about improving applicant access to FEMA assistance and the necessity for improving FEMA staff training to assist with language and accessibility needs across programs. Eight of these comments raised concerns about applicant accessibility within FEMA's IHP. Five commenters reasoned that FEMA must improve its communication access for applicants who have a primary language other than English with Limited English Proficiency (LEP),
Five commenters questioned FEMA's ability to adequately identify and meet the reasonable accommodation and reasonable modification needs of applicants with disabilities across the IHP service delivery process.
Two commenters stated that IHP did not provide allowances for the inclusion of accessibility-related items for pre-existing or disaster acquired disabilities. These commenters asserted that disaster survivors with physical disabilities who require accommodations or modifications to access their home in the wake of a disaster should receive timely assistance to repair their homes.
FEMA acknowledges that voluntary agencies and community organizations are the first and last organizations to provide survivors support services in a community before and after a disaster. Therefore, FEMA's Voluntary Agency Coordination Section provides technical assistance, coordination, and subject matter expertise to partners who are addressing gaps in resources, providing financial support and additional support to survivors after government assistance is exhausted. This assistance is provided via FEMA's Voluntary Agency Liaison (VAL) staff. The function of the VALs is to coordinate voluntary activities between internal FEMA partners, local, State, and Federal Government entities and State and National Voluntary Organizations Active in Disaster; to support and build the capability of disaster recovery for current and future disasters; and to support ongoing community recovery activities even after the period of assistance has ended. VALs work directly with IA staff to ensure that all disaster survivors to include those with LEP are informed of FEMA assistance.
FEMA has many ways to meet survivors' language needs. Many FEMA employees are bilingual or multilingual and can assist LEP survivors with registration in their primary language by phone and in-person at a DRC. All DRCs have a sign posted in a visible location with the phrase “If you do not speak English” in over 40 languages. A DRC staff member will use that sign to determine what language the survivor speaks and call for an interpreter to assist them.
If an in-person interpreter is not present at the DRC, FEMA staff will connect the survivor with the FEMA Helpline or video relay service so the survivor is able to communicate with the FEMA employee accurately. FEMA's Helpline has interpretation services provided by qualified interpreters available in 250 languages to assist LEP disaster survivors.
FEMA recognizes that an applicant's ability to effectively communicate their reasonable accommodation or reasonable modification request is essential. To improve FEMA's ability to assist applicants with disabilities with requesting and receiving reasonable accommodations and reasonable modifications during registration, FEMA recently updated its registration process to better capture accommodations, modifications, and access assistance needs for applicants and their household members. Specifically, FEMA added questions to the Disaster Assistance Registration forms to provide applicants with an opportunity to consider, document and differentiate their household's pre-disaster and disaster-caused accommodation or modification requests and access needs. FEMA uses responses to registration questions to provide reasonable accommodations, reasonable modifications, and assistance to applicants throughout the IHP process. These questions include whether the applicant has a disability or language need that requires an accommodation or modification, or interpretation or translation services to interact with FEMA staff and/or access FEMA programs; if the applicant or anyone in their household has a disability that affects their ability to perform daily living activities or requires an assistive device; and whether they have any disability-related assistive devices or medically required equipment/supplies/support services damaged, destroyed, lost, or disrupted because of the disaster.
FEMA recently completed system updates with the new question in 2018 to ensure information provided in response to these questions at registration or provided to staff at other times are captured and easily accessible to all staff in a consistent area in the system. FEMA is also performing additional outreach to applicants with disabilities and language access needs to assist them in understanding any correspondence FEMA provides to them.
As noted in the IAPPG 1.1, FEMA may provide Home Repair Assistance and Personal Property Assistance for disaster-damaged accessibility-related items. Nevertheless, in response to public requests for IHP policy that meets applicants' disaster-caused structural home modification needs, FEMA recently amended its policy to include
• Exterior ramp.
• Grab bars.
• Paved path of travel to the primary residential entrance (for accessible ingress or egress from the applicant's vehicle to their dwelling).
In response to public comments, FEMA is also making changes to the regulatory text at 44 CFR 206.117(b)(2) and adding a new 44 CFR 206.113(a)(9) as a part of this rule. The changes allow FEMA flexibility to provide financial assistance to applicants for the installation or construction of real property items that were not present in the home prior to the disaster. Specifically, these changes allow IHP to expand its existing policy, which provides for the installation of ADA related real property to applicants with disaster-caused needs, to include Home Repair Assistance for disaster survivors with pre-existing, pre-disaster needs for accessibility-related items, such as an exterior ramp, grab bars, etc., that make their home safe and functional when any level of disaster-caused real property damage occurs to the primary residence.
In new 44 CFR 206.113(a)(9), FEMA states that FEMA may provide assistance with respect to home repair for accessibility-related items, if an applicant meets the following conditions: (i) the applicant is either an individual with a disability as defined in 42 U.S.C. 5122 whose disability existed prior to the disaster
Via information collection at 1660-0002, we are adding a documentation requirement to tie the need for the home repair accessibility-related items (which currently includes only ramp, grab bars, and/or paved pathway) to the pre-existing disability to meet the household's access and functional need. We are requiring that a medical, health care, or rehabilitation professional certify whether or not this is necessary; as, they have the expertise to make that determination or we will accept prior medical, health care, or rehabilitation professional documentation that supports the need for the accessibility-related items.
FEMA is making the below changes to Home Repair Assistance to respond to four RFI comments,
In 44 CFR 206.117(b)(2)(i), FEMA states that FEMA may provide financial assistance for the repair of an owner-occupied primary residence if: the eligibility criteria in 44 CFR 206.113 are met; FEMA determines the dwelling was damaged by the disaster; and the damage is not covered by insurance. This provision is similar to the current 44 CFR 206.117(b)(2)(i), except FEMA is removing the phrase “real property components in” before “an owner-occupied primary residence;” adding “FEMA determines” after “met;” removing “to the component” after “damage” and replacing “component” with “dwelling,” as the Stafford Act does not limit repairs to “components” and replacing “owner's” with “owner-occupied” for consistency as
In 44 CFR 206.117(b)(2)(ii), FEMA states that FEMA may provide financial assistance for the repair of the disaster damaged dwelling to a safe and sanitary living or functioning condition. This
The September 2, 2021,
Sixteen commenters provided responses about the IHP appeal process. Ten of the commenters expressed concern that the appeal process is burdensome on applicants and must be simpler in order for applicants of varying backgrounds and communities to successfully navigate the process.
• Allowing applicants to file appeals online, by telephone, and in-person.
• Providing a standard appeal form.
• Reaching out directly to applicants by phone to personally assist them with the appeal process when they are denied assistance.
• Providing appeal status updates to applicants through their online applicant portals.
Two additional commenters described the appeal process as overly complicated to navigate because of challenges in other parts of the IHP delivery process. Specifically, these commenters asserted that IHP eligibility notification letters provided unclear explanations of the reason an applicant is determined ineligible for assistance. The commenters explained that when applicants are unable to identify and understand the cause of their denial for assistance, they lack critical information needed to pursue a successful appeal.
Three other commenters argued the need for greater transparency in the appeal process.
FEMA does not have the legal authority to accept the commenters' suggestions to create a right to challenge FEMA's eligibility decisions in court as part of the appeal process, so that FEMA is not both the original decision maker and the final decision maker. The United States is immune from suit unless it consents to be sued.
FEMA similarly does not have the legal authority to extend the 60-day appeal time frame set forth in 42 U.S.C. 5189a(a). Nevertheless, as a part of this rule, FEMA identified an opportunity to
FEMA can address comments to simplify the appeal process by removing the requirement to submit an appeal and by creating an optional appeal form. FEMA's existing regulations, 44 CFR 206.115(b), require that appeals must be in writing and explain the reason(s) for the appeal. However, a written explanation may not be necessary to substantiate an appeal claim. Instead, supporting documents, such as receipts, bills, repair estimates, contractor estimates, property titles, or deeds may better demonstrate the reason(s) for the appeal and provide justification for FEMA to reconsider the applicant's original eligibility determination. Nevertheless, to comply with the existing regulations, FEMA does not currently process appeals that do not contain the required written and signed letter of explanation, even if the applicant provides adequate documentation. To alleviate this bureaucratic hurdle, FEMA is removing the requirement that applicants must submit a signed appeal letter explaining the reason(s) for the appeal when they have provided sufficient justification through supporting documents. This change will streamline the appeal process and reduce additional paperwork and correspondence between the applicant and FEMA that may delay the applicant's recovery process.
To further assist applicants with navigating the appeal process, as suggested by a commenter, as part of this rulemaking, FEMA has developed an optional Appeal Request Form which applicants may use to assist them when submitting an appeal.
With respect to the additional suggestions from commenters, FEMA notes that under the current process, applicants may access key information online, including appeal status, letters, and their personal appeal decision. Applicants with an online account can upload their appeal
Our system does not have the capability to display inspection reports nor is it captured in FEMA's National Emergency Management Information System (NEMIS) in a way that would readily be understood by the public. As part of FEMA's development of a new system,
In addition, under section 423 of the Stafford Act, 42 U.S.C. 5189a, and existing regulations governing FEMA IHP, 44 CFR 206.115(d)-(f), an applicant may ask for a copy of information in his or her file by writing to FEMA. To promote transparency, FEMA's regulations require the agency to give the applicant a written notice of the disposition of the appeal within 90 days of receiving the appeal. The appeal decision made by FEMA, or the State, Tribal, or Territorial (STT) government in instances where the STT government has opted to process ONA, is final. FEMA believes its current regulations are sufficient to ensure that disaster survivors can exercise their right to appeal assistance decisions. The existing regulations provide FEMA with the flexibility needed to meet survivor needs, while complying with privacy and paperwork reduction laws, intended to protect applicant information and minimize burdens, and avoiding the unnecessary expenditures and delays that would be a part of implementing the expanded appeal process requested by commenters, which included a litigation component to the IHP appeal process.
Finally, FEMA makes every effort to ensure that its correspondence is written using plain language and that eligibility notification letters provide adequate explanation of the applicant's eligibility determination, award decision, and next steps should the applicant want to appeal the eligibility determination or award amount.
Prior to peak hurricane season in 2022, FEMA updated its applicant letters based on focus group feedback, with the intent of simplifying the letters and making the appeal process clearer. As one example of a change made based on focus group input, FEMA further clarified the relationship between SBA and FEMA and how our processes interact, after focus group members
Applicants who need assistance with understanding their eligibility notification letter or the appeal process can receive assistance by phone by calling the FEMA Helpline at 800-621-3362 (711 or VRS available). When available, applicants may also receive in-person assistance by visiting a local DRC, where FEMA and SBA customer representatives are available. FEMA will continue to explore options for simplifying the process for submitting appeals and strives to continue to identify ways to alleviate any disparate impacts to underserved groups in the IHP process.
Two commenters suggested FEMA implement proactive measures to provide a broad delivery of disaster assistance to residents in a declared area in order to equitably deliver assistance without regard to economic ability, housing situation, or specific losses attributed to the disaster.
FEMA has a duty under section 408(i) of the Stafford Act, 42 U.S.C. 5174(i), to verify each applicant is eligible for assistance. Additionally, section 696 of the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), 6 U.S.C. 795, also requires FEMA to develop and maintain proper internal management controls to prevent and detect fraud, waste, and abuse. Accordingly, without a change to these underlying statutory provisions, FEMA cannot provide assistance without first verifying the applicant's specific housing situation or losses.
While FEMA understands the immediate need for assistance after catastrophic events, FEMA also has to balance its responsibility to ensure assistance is provided only to eligible individuals and for the purpose allowable by statute. Therefore, FEMA must verify disaster-caused loss or expenses. Additional assistance provided for in this rulemaking, such as Serious Needs Assistance and Displacement Assistance,
FEMA remains committed to ongoing community engagement and communication with our stakeholders to better understand the needs of traditionally underserved communities and to share information regarding disaster preparedness and recovery assistance. We conduct tribal engagement sessions on draft policies; and we have held engagement sessions with the public on letter updates. We also engage with other stakeholders, such as Congressional members and staff, State and local officials, and advocacy organizations to discuss their concerns.
A few commenters raised issues regarding immigration status-based restrictions on FEMA IA, arguing that FEMA should reform the IA Program to ensure that undocumented residents are eligible. Commenters noted that undocumented families are unable to access a range of benefits and therefore are more likely to suffer lasting harm.
Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, sometimes referred to as the Welfare Reform Act, Pub. L. 104-193, provides that noncitizens who are not “qualified aliens” are not eligible for Federal public benefits, which include assistance provided under Section 408 of the Stafford Act, 42 U.S.C. 5174. FEMA cannot alter this requirement without a statutory change; however, FEMA considers the citizenship status of the entire household where someone is applying for assistance. This means that any adult household member who is a U.S. citizen or qualified alien in the household may apply for assistance, or any undocumented immigrants with children who are U.S. citizens may apply on behalf of their child. Further, regardless of citizenship status, disaster survivors may be eligible for the following FEMA programs that provide services instead of financial assistance to individuals:
• Mass Care/Emergency Assistance (Section 403 of the Stafford Act, 42 U.S.C. 5170b) which addresses sheltering needs immediately following a disaster;
• Crisis Counseling Assistance and Training Program (Section 416 of the Stafford Act, 42 U.S.C. 5183) which is a Federal-funded supplemental program that enables State, local, Territorial, or Tribal government agencies to provide crisis counseling services or contract with local mental health service providers to provide services;
• Disaster Case Management (DCM) (Section 426 of the Stafford Act, 42 U.S.C. 5189d) which is a Federal-funded supplemental program that provides financial assistance to State, local, Territorial, or Tribal government agencies, or qualified private organizations, to enable non-Federal entities to provide DCM services; and
• Disaster Legal Services (Section 415 of the Stafford Act, 42 U.S.C. 5182) which via an agreement with the American Bar Association provides free legal help for survivors.
In 2017, FEMA updated the FEMA registration language by removing
The topic of immigration is notably absent in the RFI because citizenship requirements for Federal assistance are established by statute and cannot be resolved via rulemaking. However, FEMA has no policy of forwarding individuals' information particularly pertaining to their citizenship status to immigration enforcement authorities. Accordingly, FEMA posts the following language via a flyer in all DRC locations. “This location is a protected area designated to provide emergency response and relief. FEMA will not proactively share your information with immigration or law enforcement agencies. U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) will not conduct enforcement operations at or near this location, except in the most extraordinary of circumstances.”
One comment was received suggesting that FEMA should require IHP applicants to adhere to minimum construction standards for any applicable repair to their disaster-damaged home, regardless of whether the local community has adopted a building code.
Two commenters raised issues regarding the cost share requirement, arguing that FEMA should reduce or remove the requirement altogether.
Section 408(g) of the Stafford Act, 42 U.S.C. 5174(g), governs the IHP cost share. Specifically, it states that the Federal share of Housing Assistance under the IHP will be 100 percent; whereas, the Federal share for Other Needs Assistance will be 75 percent and the non-Federal share will be paid from funds made available by the relevant STT government.
Two commenters expressed their concerns with how applicant data is shared from FEMA with local partners. One of them commented that the way in which FEMA shares data with local partners seems to be inconsistent from incident to incident.
FEMA recognizes that data sharing might make it easier for survivors to access assistance from other entities, and FEMA is always looking for ways to simplify IHP and speed the delivery of assistance. However, collecting, maintaining, and sharing data on a large scale presents challenges with respect to data security, and updating the rules on data sharing with State and local partners requires carefully balancing those concerns against the benefits of simplifying the program. FEMA continues to work alongside its State, local, Tribal, and Territorial partners to ensure that disaster recovery resources and services are not delayed or hindered by data collection and sharing concerns. Applicants can also access up to date information on their individual applications by setting up a Disaster Assistance Center electronic account with FEMA following a disaster.
Lastly, the IRS has indicated they could not share data with FEMA without statutory authorization.
One commentor stated that Federal funds should not be a roadmap but rather a single point of engagement and support, especially to underserved communities or other communities who may fall below the poverty line or
With respect to acting as a single point of engagement for underserved communities' broader quality of life needs, FEMA is committed to providing disaster assistance in a fair and equitable manner. This rule's changes to how FEMA assesses habitability, discussed in more depth below, will put applicants in a better position to recover from disasters while staying within the bounds of FEMA statutory authority under the Stafford Act.
With respect to demographic data, in an effort to further understand the distribution of awarded IHP assistance, FEMA obtained Office of Management and Budget's (OMB) approval to gather demographic information from disaster survivors who choose to provide it.
A few commenters mentioned the expired Disaster Housing Assistance Program (DHAP), which initially was created as a FEMA pilot program administered by the U.S. Department of Housing and Urban Development (HUD) to assist applicants of Hurricanes Katrina and Rita,
Rather than reinstate DHAP,
Several commenters mentioned Direct Housing Assistance. Four commenters recommended FEMA should change regulations and policy to allow FEMA to provide permanent housing solutions such as repairing and/or rebuilding the applicant's damaged/destroyed dwelling.
FEMA's existing regulations at 44 CFR 206.117(b) and IAPPG 1.1 currently allow for the following forms of Direct Housing Assistance: Transportable Temporary Housing Units, MLR, Direct Lease, and PHC. Per 42 U.S.C. 5174(c)(4), FEMA may only provide PHC assistance—in the form of direct repairs or new construction—to individuals and households to construct permanent or semi-permanent housing in insular areas outside the continental United States. Per 42 U.S.C. 5174(c)(4)(A)-(B), FEMA may also consider providing such assistance in other locations where no alternative housing resources are available and other types of Temporary Housing Assistance are unavailable, infeasible, or not cost-effective.
FEMA supports all direct housing occupants—owners and renters—in achieving their Permanent Housing Plans
One commenter stated that the IA flood insurance requirements, which attaches to property rather than people, can be a burdensome expense for those on limited and fixed incomes.
FEMA does not have the authority to remove the flood insurance requirement absent a legislative change to the National Flood Insurance Act of 1968 (NFIA). Under the Flood Disaster Protection Act of 1973, FEMA may not approve any financial assistance for acquisition or construction purposes for use in any Special Flood Hazard Area (SFHA) where the sale of flood insurance has been made available under the NFIA, 42 U.S.C. 4001
While much of this comment touches on the National Flood Insurance Program (NFIP) and is outside the scope of this IA rulemaking,
Per IAPPG 1.1, FEMA directly purchases GFIP certificates on behalf of applicants who are required to purchase and maintain flood insurance but who may not otherwise be able to purchase a policy. This assistance is provided as a part of the effort to reduce future expenses from floods. As required by existing regulations at 44 CFR 206.119(a), applicants must apply for and be denied an SBA loan before receiving a GFIP certificate under ONA. This rule will remove this SBA requirement, which increases the number of applicants in SFHAs that are eligible to receive a 3-year policy from FEMA following a flood disaster.
A few commenters raised issues regarding the definition of “uninhabitable,” recommending that FEMA should revise the definition to ensure it meets the needs of all disaster survivors and underserved communities.
Section 408 of the Stafford Act, 42 U.S.C. 5174, authorizes FEMA to provide Housing Assistance to applicants who, as a direct result of a major disaster, are displaced from their pre-disaster primary residences or are left with pre-disaster primary residences that are “uninhabitable” or, with respect to individuals with disabilities, are “uninhabitable or inaccessible.” FEMA's regulations at 44 CFR 206.111 defines “uninhabitable” as a dwelling that is not “safe, sanitary or fit to occupy.” FEMA's regulations at 44 CFR 206.111 further defines “safe” and “sanitary,” but does not define “fit to occupy.” “Safe” means secure from disaster-related hazards or threats to occupants; “sanitary” means free of disaster-related health hazards.
FEMA recognizes that current regulations limit assistance to applicants with residences that incurred disaster-caused damage falling short of immediate safety and sanitation concerns and prevents FEMA from addressing or assessing the general livability issues when determining Housing Assistance eligibility, and is making changes that are expected to address these concerns. FEMA is revising the term “uninhabitable” to mean the dwelling is not safe or sanitary. FEMA is revising the term “safe” to mean secure from hazards or threats to occupants, and FEMA is revising the term “sanitary” to mean free of health hazards. FEMA is also removing the requirement for disaster-damaged real property components to be functional immediately before the disaster in order to provide assistance for pre-existing damage exacerbated by the disaster. This change will remove a discretionary element for inspectors that is not required by the Stafford Act.
Eleven commenters stated that FEMA should allow recovery funds to be used toward making resilient upgrades that offer greater protection against future disasters, with one commenter specifically noting that this would be particularly helpful in flood prone areas.
FEMA recognizes that helping disaster survivors address hazard mitigation measures while repairing their homes from disaster damage will help make their homes more resilient. Therefore, using our authority under Section 408(c)(2)(A)(ii) of the Stafford Act, 42 U.S.C. 5174(c)(2)(A)(ii), FEMA began including additional assistance for mitigation in Home Repair Assistance awards for disasters declared on or after May 26, 2021.
Prior to this IFR, hazard mitigation under IHP is awarded as part of Home Repair Assistance for specific real property components that existed and were functional prior to the disaster—roof, water heater, furnace, and main electrical panel.
This IFR will allow FEMA to include mitigation for components that were not functional prior to the disaster when the damage to the component is worsened by the disaster.
Seven commenters raised concern regarding FEMA's delivery of Home Repair Assistance,
Per Section 408 of the Stafford Act, 42 U.S.C. 5174, FEMA may provide financial assistance for the repair of owner-occupied private residences, utilities, and residential infrastructure (such as a private access routes) damaged by a major disaster to a safe and sanitary living or functioning condition; and eligible hazard mitigation measures that reduce the likelihood of future damage to such residences, utilities, or infrastructure.
As part of this rule, FEMA is removing the requirement for real property components to be functional immediately before the disaster to provide assistance for pre-existing damage that has been further damaged by the disaster. When a component of the home with pre-existing damage is further damaged by the disaster, FEMA may provide assistance to fully repair or replace the item (as appropriate) rather than denying assistance solely because not all damage was caused by the disaster.
One comment suggested FEMA focus its efforts on providing permanent repairs to disaster-damaged homes using a sliding scale benefit.
Four commenters voiced concern over the lack of FEMA guidance to State, local, and Tribal governments on how to handle people experiencing homelessness during a disaster, the lack of resources available for people experiencing homelessness during or after a disaster, and the need for more programs dedicated to those experiencing homelessness.
Per Section 408(a)(1) of the Stafford Act, 42 U.S.C. 5174(a)(1), FEMA's IHP assistance is intended to assist with disaster-caused losses; therefore, issues related to pre-disaster homelessness are outside the scope of the program. FEMA does not provide Housing Assistance (Rental Assistance, Direct Assistance, Home Repair Assistance, or Home Replacement Assistance) to applicants experiencing pre-disaster homelessness if their need for housing or shelter was not caused by the disaster. However, applicants experiencing pre-disaster homelessness may be eligible for certain types of ONA (Transportation Assistance, Medical and Dental Assistance, Funeral Assistance, and Child Care Assistance). Further, applicants whose pre-disaster residence was a tent or other form of nontraditional housing could be considered for limited housing assistance (2-month initial Rental Assistance and Lodging Expenses Reimbursement) if a public official or homelessness advocate verifies a disaster survivor's occupancy and if that individual meets all other eligibility requirements.
While FEMA may be limited in the types of assistance it can provide to pre-disaster homeless individuals, there are other Federal, State, or local government resources that are more readily available for this population,
Applicants experiencing homelessness as a result of the disaster—for example, those whose pre-disaster residences were destroyed due to a disaster—may be considered for various types of financial Housing Assistance to include Lodging Expense Reimbursement, Rental Assistance, Home Repair Assistance, and Replacement Assistance, to meet their disaster housing needs. Additionally, if a direct housing mission is approved for the disaster, they could be eligible for a direct housing unit depending on the level of damage incurred to their pre-disaster residence and on whether they have not been able to use any FEMA-provided Rental Assistance.
A few commenters raised issues regarding FEMA's process for applicants to request a copy of their IHP file, stating that it is unnecessarily complex.
There are multiple statutes which govern what information FEMA may collect and how that information may be shared. The Stafford Act allows FEMA to collect personal information to determine eligibility and administer FEMA disaster assistance as a result of an emergency or a Presidentially declared disaster. See 42 U.S.C. 5121-5207.
As outlined on page 67 of IAPPG 1.1, applicants may submit a written, signed request for a copy of FEMA's records related to their registration for IHP assistance.
FEMA continues to work alongside its State, local, Tribal and Territorial partners to ensure that disaster recovery resources and services are not delayed or hindered by data collection and sharing concerns. Following a disaster, FEMA establishes a Joint Field Office (JFO), which is the appropriate central point to work with the State and disaster-relief organizations for the disaster. Once the JFO closes, those duties would devolve to the FEMA Region, unless a long-term field office is set up to handle disaster-related concerns. FEMA has processes in place to assist States, Tribes, and Territories with information sharing. These entities work with the FEMA staff assigned to coordinate with them for a specific disaster. This is the standard process that FEMA utilizes when responding to disaster-specific requests of all types from States, Tribes, and Territories.
One commenter stated that the Stafford Act needed to be amended so that Federal assistance would not be considered a duplication of benefits
Twenty-three comments were received regarding FEMA's loss verification methods,
Once disaster survivors register for assistance, FEMA is required to verify losses to determine their eligibility for IHP assistance. FEMA uses multiple loss verification methods, including onsite and geospatial inspections as well as submitted documentation. FEMA may, at its discretion, determine other methods of verification (
FEMA inspectors are trained to identify post-disaster damage and record all appropriate evidence of any disaster damage. Home and/or property values are not considered during damage verification. While there are numerous checks and balances in place to verify consistent and accurate damage assessments, FEMA continues to explore ways to improve its loss verification methods.
Per IAPPG 1.1, FEMA may provide financial assistance to repair an owner-occupied primary residence, utilities, and residential infrastructure, including private access routes damaged as a result of a Presidentially-declared disaster up to the financial Housing Assistance maximum award. Home Repair Assistance is intended to make the damaged home safe, sanitary, or functional. Damage to real property components of the applicant's home is addressed under the IHP's Home Repair Assistance, regardless of the type of home. Mobile homes have unique real property components, and damage to these items are captured during inspection. Personal Property is not dependent on the type of home and is recorded under ONA.
One commenter stated that FEMA should make more effort to aid residents of multifamily housing units in the wake of disasters.
Section 408 of the Stafford Act, 42 U.S.C. 5174, limits IHP assistance to individuals and households;
FEMA may provide Direct Temporary Housing Assistance to eligible applicants in the form of temporary rental units made available through repairs or improvements to existing, vacant multifamily housing units (
One commenter stated that FEMA does not recognize applicants who live in non-traditional housing such as “boats, yurts, and travel trailers.” The commentor requested that FEMA consider these as viable places of residence and recognize them for compensation.
Per Chapter 3: II.B.
All 26 comments received regarding FEMA's verification of applicant ownership and/or occupancy of their
Per IAPPG 1.1, FEMA verifies occupancy through an automated public records search or submitted documents. In locations where automated verification of public records is limited, FEMA may partner with applicable authorities from the State, local, Tribal, or Territorial government to verify ownership or occupancy. When FEMA is unable to verify an applicant's occupancy of their disaster-damaged primary residence, the applicant may provide FEMA with documentation for verification. Based on comments submitted via the April 22, 2021 RFI, FEMA updated its automated public records criteria along with its policy to provide more documentation flexibilities for verifying occupancy. Specifically, as outlined in the
Like occupancy, when FEMA is unable to verify an applicant's ownership of their primary residence, the applicant may provide FEMA with documentation to prove ownership. Based on comments submitted via the RFI, FEMA also updated its policy to provide more documentation flexibilities in order to verify ownership. Specifically, as outlined in the
Both occupancy and ownership verification may be completed upon inspection if the applicant is able to show an acceptable document to the inspector. FEMA inspectors, however, will not accept self-declarative statements; this option of last resort must be mailed, uploaded to the applicant's online account, or submitted in person at a DRC.
Five commenters requested that the current period of assistance be extended or for there to be options in which it could be extended on an individual disaster basis.
Section 408(c)(1)(B)(iii) of the Stafford Act, 42 U.S.C. 5174(c)(1)(B)(iii), limits IHP assistance to 18 months following the date of the disaster declaration. The period of assistance begins at the date of the Presidential disaster declaration and not the date on which the disaster is designated for IA. FEMA may extend the period of IHP assistance beyond 18 months due to extraordinary circumstances if an extension would be in the public interest, and FEMA has implemented this authority when warranted.
FEMA assistance is intended for disaster caused losses. Disputes between contractors and individuals are private civil matters, in which FEMA has no authority to intercede. These should be addressed by the applicant through appropriate legal channels.
One commenter stated that FEMA must include clear guidance in its policies to ensure that multifamily homes are treated in a fair and equitable manner, including expanding the definition of “household” so that multiple families in one housing unit are counted as separate households for purposes of calculating aid and are eligible for separate rental assistance when needed.
Another commenter stated that it is common in Puerto Rico for multiple homes to be built on a single lot and to have the same address and that this leads to a denial of assistance for the second family to apply due to suspected duplication of benefits.
Ten commenters stated that FEMA assistance is prioritized for homeowners and that programs and services need to be expanded to include renters and/or provide more assistance programs to benefit renters.
A few commenters suggested that FEMA should partner with HUD to design resilient and affordable housing relocation solutions and follow a similar approach to HUD's Community Development Block Grant—Disaster Recovery (CDBG-DR) program for clients who want to remain in their communities while reducing disaster risk.
Some of these comments misconstrue FEMA policy. Per Section 408 of the Stafford Act, 42 U.S.C. 5174, FEMA may only provide financial assistance to repair an owner-occupied primary residence, utilities, and residential infrastructure, including private access routes damaged as a result of a Presidentially-declared disaster. FEMA does not have the authority to provide repair assistance to renters or landlords not occupying the damaged property as their primary residence.
Section 408 of the Stafford Act, 42 U.S.C. 5174, also states that FEMA may provide financial assistance,
FEMA agrees that renters should have equitable access to IHP financial assistance. One type of assistance renters may currently qualify for is Personal Property Assistance. Under Section 408(e)(2) of the Stafford Act, 42 U.S.C. 5174(e)(2), FEMA may provide financial assistance under the ONA provision of the IHP to repair or replace personal property damaged or destroyed due to a disaster. FEMA assistance to repair and replace personal property may be provided for: appliances (standard household appliances such as refrigerator, washing machine, etc.); clothing (essential clothing needed due to overall loss, damage, or contamination); room furnishings (standard furnishings found in a bedroom, kitchen, bathroom, and living room); and essential tools (tools and equipment required by an employer for employment and items required for education).
Additionally, FEMA is committed to improving its Renter Assistance program in those areas where equity may be lacking. For example, as part of this rule, FEMA is broadening the IHP to encompass any damage to the applicant's primary residence that causes the home to be unsuitable for occupancy. This change allows more renters with minimal damages to qualify
As is discussed further below, FEMA is removing the requirement that applicants must apply and be denied for an SBA disaster loan before being considered for SBA-dependent ONA. Applicants may apply for an SBA loan for additional funds if they have an unmet need, but eligibility for Personal Property Assistance, Transportation Assistance, and Group Flood Insurance Policies will no longer be contingent on applying for and being denied for an SBA loan making them available to more renters.
Another example of how FEMA is making strides towards equity involves regulatory updates to CTHA. The rule update will add flexibility regarding FEMA's ability to provide some continued assistance without requiring substantial documentation from the applicant. FEMA is also making updates to its CTHA policy and the Application for CTHA forms so that applicants have a better understanding of what documentation is needed at each step of the process. Plus, the applicant having to work toward obtaining permanent housing in order to remain eligible for continued rental assistance increases the likelihood of successful recovery outcomes.
In addition, FEMA is implementing two new types of assistance, Serious Needs Assistance and Displacement Assistance. Serious Needs Assistance will provide funds to address immediate needs related to sheltering, evacuation, or other emergent disaster expenses. Displacement Assistance is intended to assist displaced applicants with the cost of short-term living arrangements immediately following a disaster.
The majority of commenters who commented on this requirement raised the same concern: FEMA should remove the requirement for applicants to apply for and be denied an SBA loan before receiving consideration for IA grants. The commenters stated the process is unclear and places an unnecessary burden on applicants; creates a disproportionate barrier; and may, at best, lead to a delay in the registration process, or, at worst, effectively block access to the grants.
FEMA's current regulations under 44 CFR 206.119(a)(1)-(3) state that FEMA and the State may provide financial assistance to individuals and households who have other disaster-related necessary expenses or serious needs. Prior to this IFR, to qualify for assistance under this section, an applicant must also apply to the SBA Disaster Home Loan Program for all available assistance under that program; and be declined for SBA Disaster Home Loan Program assistance; or demonstrate that the SBA assistance received does not satisfy their total necessary expenses or serious needs arising out of the major disaster. FEMA's current 44 CFR 206.191(d) provides FEMA's sequence of delivery to ensure uniformity in preventing duplication of benefits. The delivery sequence pertains to that period of time in the recovery phase when most of the traditional disaster assistance programs are available. The delivery sequence includes in relevant part Housing Assistance pursuant to Section 408 of the Stafford Act, 42 U.S.C. 5174; SBA and Farmers Home Administration
Prior to this IFR, FEMA's regulations required SBA referrals, but FEMA only required applicants whose self-reported income meets the SBA's minimum income requirements to apply for and be denied an SBA disaster loan before receiving consideration for SBA-dependent ONA, in an effort to minimize the burden on and expedite assistance to applicants whose income did not meet SBA's minimum income requirements. Based on comments submitted via the RFI, the SBA, in coordination with FEMA, raised the minimum income threshold so that more eligible lower income applicants could be assisted by FEMA as opposed to referred to SBA for a loan.
With this rule, FEMA is removing the requirement entirely that applicants must apply and be denied for an SBA disaster loan before being considered for SBA-dependent ONA. Removing this requirement will ensure low income and other vulnerable disaster survivors who may not have the means to obtain or repay a disaster loan due to their financial condition have equitable access to disaster assistance while also leveraging new ways to prevent duplication of benefits.
Just because an applicant already receives needs-based assistance such as food stamps, SSI, and SSDI does not mean that they will be eligible for FEMA assistance. The applicant will have to meet the IHP eligibility
Two commenters stated that gig workers, artists, and other self-employed individuals do not receive the same assistance as other applicants.
Prior to this IFR, per 44 CFR 206.113(b)(9), FEMA may not provide IHP assistance for business losses, including farm businesses and self-employment. Under current policy, self-employed individuals are eligible for FEMA assistance for their personal losses except for necessary expenses and serious needs related to business losses.
As part of this rule and in response to comments received during the Agency's RFI, FEMA is amending its regulations to allow FEMA to provide self-employed applicants with IHP financial assistance for necessary expenses and serious needs as it relates to self-employed applicants seeking assistance for the replacement of essential tools.
In addition, this rule will remove the requirement for applicants to apply for and be denied an SBA loan before receiving ONA. For additional information, refer to the SBA-Dependent ONA discussion in section III.D.2 of this rule.
Twenty-one commenters recommend merging the information collection authorities that govern over 19 other Federal agencies in order to form a single registration for disaster assistance.
FEMA recognizes the complexities caused by multiple disaster registration processes and that data sharing might make it easier for survivors to access assistance. FEMA has previously examined whether a streamlined, one-stop shop application could be created and has identified statutory and administrative barriers that would prevent a single agency from collecting and sharing as wide a range of information as would be required for a unified application. A recent Government Accountability Office (GAO) report highlighted the potential benefits of a single application, but noted concerns about the feasibility of such an application and about whether it would actually reduce the complexity of Federal disaster recovery programs.
Eight commenters raised transparency concerns regarding FEMA's IHP policy and guidance. The comments focused mainly on how FEMA should make public the policy and determination process it uses before IA decisions are made.
The Stafford Act and FEMA's regulations at 42 U.S.C. 5174 and 44 CFR 206.101-120 govern IHP's eligibility criteria. The Stafford Act and FEMA regulations are publicly available and can be found online by searching on
FEMA embraces the tenets of transparency, participation, and collaboration to support citizens and first responders to increase government accountability, innovation, and effectiveness. To provide greater transparency on the IHP, FEMA released the
To increase consistency in implementation, collaboration, and knowledge sharing between State, local, Territorial, or Tribal governments, FEMA, and other Federal and non-Federal entities who assist disaster survivors, FEMA conducts a comprehensive review of IA policies no less than every 3 years. If FEMA determines it necessary to release new or updated policy language before the next scheduled update, FEMA will update the electronic version of the IAPPG, issue a memorandum describing the additions or updates, and post both documents at
FEMA continuously seeks to improve public awareness and understanding of FEMA's programs. Some of the comments underestimate the transparency of FEMA policy. Uniform eligibility criteria are currently in place and available to the public. FEMA makes all policies, fact sheets, guidance, news, and multimedia content available online at
Existing technology for dissemination of disaster data includes OpenFEMA.
RSMeans,
Some of the comments touch on Mass Care and Direct Housing changes, which are outside the scope of this rule. A separate effort is underway to improve Direct Housing and other areas of IA that involve contracting.
Also, in an effort to advance equity and improve program administration, in August of 2022, FEMA began gathering demographic information from disaster survivors that choose to provide it. This data will be used to assess the impact of IA Programs on underserved populations.
One commenter noted that FEMA should provide resources to help displaced households without access to cars obtain funding for increased transportation costs (
Per Section 408(e)(2) of the Stafford Act, 42 U.S.C. 5174(e)(2), and as outlined on page 170 of the IAPPG 1.1, FEMA may provide financial assistance under the ONA provision of the IHP to individuals and households with disaster-caused vehicle repair or replacement expenses. Unlike most other forms of IHP assistance, an applicant seeking Transportation Assistance does not need to live in the Presidentially-declared area to be considered for assistance.
Understanding that applicants have serious and immediate needs after a disaster, including for transportation costs, this rule revises FEMA's regulations in order to establish Serious Needs Assistance. Through these changes, FEMA will provide more immediate financial assistance under the ONA provision of the IHP to applicants who have necessary expenses or serious needs as a result of a disaster. Serious needs may include but are not limited to: water, food, first aid, infant formula, diapers, personal hygiene items, and fuel for or the cost of transportation. FEMA's implementation of Serious Needs Assistance will also provide funds to address immediate needs related to sheltering, evacuating, or other emergent disaster expenses. As this assistance is intended to provide applicants the financial means to address immediate serious needs prior to FEMA's evaluation of their eligibility for other disaster assistance programs, FEMA will limit assistance to those applicants who are displaced from their pre-disaster primary residence as a result of the disaster or who are sheltering in their pre-disaster residence and report a need to shelter elsewhere, and who assert they have a serious need at registration and request financial assistance for those needs and expenses.
One commenter stated that FEMA needed to provide more assistance to applicants to ensure their utility bills are paid.
One commenter raised the issue that FEMA's assistance is often times proportional to the survivor's pre-disaster financial condition. This commenter, and a few others, expressed that FEMA should prioritize assistance to individuals with fewer resources or capabilities
Two of those commenters suggested that FEMA should proactively go into communities disproportionately impacted by emergencies to assist survivors in navigating the process and accessing resources. Specifically, these commenters noted that disaster survivors should be able to access these resources without the need to apply for FEMA assistance.
One commenter noted that survivors with LEP experience delays in recovery and often times receive denials for disaster assistance caused by miscommunications and misunderstandings of document requirements and lack of services to obtain equitable access to resources and assistance.
Three commenters suggested that FEMA should develop an internal program and policy evaluation capacity which would reduce the need for external review boards and inspector general audits that are more costly to the U.S. taxpayer and burdensome to FEMA personnel but results in little to no improvements in program equity.
Two commenters expressed that FEMA should apply the least restrictive guidance regarding documentation requirements across all jurisdictions to minimize administrative time, confusion, and inconsistencies from disaster to disaster, expressing that one way to start is for FEMA to apply more flexibility in its “use of funds” policy which would allow survivors to repurpose their rental assistance for home repair or vice versa in order to prioritize their own recovery needs.
A commenter stated that FEMA should include subsistence activities under ONA.
Another commenter raised the issue that the process between registration and receipt of assistance is too long, confusing, and biased against persons or families in underserved communities, including people of color, and especially for the elderly/disabled individuals who have to wait on insurance adjustments in order to complete and collect documents required for FEMA's eligibility process.
One commenter suggested that FEMA track and analyze who starts but does not finish the registration process to better understand barriers experienced by applicants seeking disaster assistance. This commenter raised the issue that FEMA's registration and the CTHA processes are burdensome, due to the length of the forms and instructions and the lack of a list of required documents, especially for survivors in poverty who may not be residing in traditional housing or not under a traditional written lease. This commenter suggested that FEMA completely remove its documentation requirements as applicants already have to certify the information provided is true and correct.
Similarly, another commenter noted that survivors have difficulty after a disaster with collecting required documentation to complete a disaster registration and/or provide eligibility documentation after they have registered. This commenter also stated that FEMA should change its authorities to allow temporary to permanent housing solutions instead of just temporary housing assistance. Lastly, they remind FEMA that disaster assistance must be fair, equitable, and based upon an objective assessment of need.
One commenter raised the suggestion for FEMA to provide two-way travel support to evacuated residents who want to return to their homes and provided examples of the challenges faced in Puerto Rico to include that some travel support was only available for residents who wanted to leave Puerto Rico and had the resources to start anew somewhere else, but others who lacked those resources experienced an insurmountable barrier to returning due to one-way travel restrictions.
One commenter raised the issue that due to the lack of development for post-disaster replacement housing or existing overcrowding in Tribal communities, temporary housing often becomes de facto permanent housing, leaving many families to never recover or regain their housing and become permanently displaced.
FEMA provides IHP assistance without concern to socioeconomic factors or gender, race, or ethnicity. IHP assistance provides financial assistance and direct services to eligible individuals and households who have uninsured or underinsured necessary expenses and serious needs caused by a disaster; it is intended to meet basic needs and supplement disaster recovery efforts. IHP assistance is not a substitute for insurance and cannot compensate for all losses.
As outlined in Section 408(h) of the Stafford Act, 42 U.S.C. 5174(h), the amount of financial assistance an individual or household may receive under IHP is limited. Financial Housing Assistance and ONA have independent and equal financial maximums, and FEMA adjusts these maximum awards each fiscal year based on the CPI-U. Temporary Housing Assistance, including Lodging Expense Reimbursement, Rental Assistance, and CTHA, are not counted toward the financial Housing Assistance maximum award.
FEMA understands that an applicant's pre-disaster financial and living situation may impact their post-disaster resources or capabilities, and increasing equity in disaster assistance outcomes is an area of focus for FEMA. As part of this rule, and as discussed above, FEMA is removing the requirement for disaster-damaged real property components to be functional immediately before the disaster to provide assistance for pre-existing damage exacerbated by the disaster. Applicants without the means to pay for minimal damage, or who are unable to complete the work themselves—often low-income or other underserved populations—may be eligible for repair assistance under the changes. The intent is still to limit assistance to disaster damage impacting the home.
One comment mentioned the disproportionate distribution of assistance based on an individual's or household's financial situation prior to the disaster.
The September 2, 2021,
Also, as part of this rule, FEMA is making changes to the current regulations, at 44 CFR 206.111, that will broaden its definition of “uninhabitable” as discussed below in section III.D. of this IFR. The changes to 44 CFR 206.117 will remove the requirement for disaster-damaged real property components to be functional immediately before the disaster. These changes will allow IHP to provide assistance for pre-existing damage exacerbated by the disaster, which will create more flexibility within the program to meet disaster survivors' unique recovery needs.
Another example of how FEMA is seeking to improve equity involves the regulatory updates to CTHA. This rule will add flexibility regarding FEMA's ability to provide some continued assistance without requiring substantial documentation from the applicant, while simplifying assistance delivery and reducing processing time. FEMA is making updates to its CTHA policy by adding a new form, the IHP Supplemental Application for CTHA form,
The updates to CTHA policy and the applicable CTHA forms are intended to address to concerns raised by organizations and the public in general about the CTHA process. All changes—working together—are intended to better assist applicants in obtaining a permanent housing solution by the 18-month period of assistance.
With respect to internal program and policy evaluation, FEMA is committed to improving our programs and internal processing capabilities, and previously established the IA Audit Section. This Section evaluates internal controls and makes recommendations for operational improvements within IA disaster assistance activities. The improvement recommendations are the results of thorough internal audits, studies, and investigations. The Audit Section's focus is to ensure compliance with the Stafford Act and other applicable laws and regulations. FEMA also has a Recovery Reporting and Analytics Division (RAD). This Division serves as the primary resource pool for analytical efforts and is focused on providing analysis and information that is targeted to inform specific operational or strategic decisions. FEMA also has a Continuous Improvement Division that routinely conducts reviews and issues internal after-action reports/recommendations on a variety of issues.
FEMA also recently reviewed our policies and processes to improve the application process. Based on comments submitted via the RFI, FEMA updated its policy to provide more documentation flexibilities in order to verify occupancy. Specifically, as outlined in the
Like occupancy, when FEMA is unable to verify an applicant's ownership of their primary residence, the applicant may provide FEMA with documentation to prove ownership. Based on comments submitted via the RFI, FEMA also updated its policy to provide more documentation flexibilities in order to verify ownership. Specifically, as outlined in the
Both occupancy and ownership verification may be completed upon inspection if the applicant is able to show an acceptable document to the inspector. FEMA inspectors, however, will not be able to accept self-declarative statements as they are an option of last resort.
FEMA recognizes that effective communication access regarding FEMA programs is essential in the recovery process, including during inspection, for all disaster survivors. FEMA has many ways to meet survivors' language needs. Many FEMA employees are bilingual or multilingual and can assist LEP survivors with registration in their primary language by phone and in-person at a DRC. When survivors visit a DRC there is a sign with the phrase “If you do not speak English” in over 40 languages. A DRC staff member will use that sign to determine what language the LEP survivor speaks and call for an interpreter to assist them. Applicants may also request language access by contacting FEMA's Helpline at 800-621-3362 (711 or VRS available). FEMA's Helpline has translation and interpretation services (provided by qualified translators and interpreters) available in 250 languages to assist LEP disaster survivors. FEMA often sends Disaster Assistance Teams into the affected communities to help survivors apply for IHP assistance. Or, FEMA may provide Mobile Registration Intake Centers which ease disaster survivor burden with registration as they provide survivors a way to perform initial registration, some technical assistance on current registrations, and allow them to have documents scanned into their case files. FEMA may also coordinate with the State, local, Tribal, or Territorial government to send staff into emergency shelters to assist survivors. FEMA staff are equipped with computers or similar devices to assist survivors with registering for IHP
FEMA remains committed to ongoing community engagement and communication with our stakeholders to better understand the needs of traditionally underserved communities and sharing information regarding disaster preparedness and recovery assistance. FEMA has focused on hiring more bilingual employees, including hiring local staff in affected areas with large Spanish-speaking populations.
One commenter appeared to misunderstand FEMA's Section 425, 42 U.S.C. 5189c, Transportation Assistance policy, implying that FEMA only provides assistance for survivors to evacuate their homes and not assistance to return. As outlined in Appendix A of IAPPG 1.1, the Stafford Act authorizes FEMA to provide assistance, when approved, to relocate individuals displaced from their pre-disaster primary residences as a result of a major disaster or emergency or otherwise transported from their pre-disaster residence under Section 403(a)(3) or Section 502 of the Stafford Act, 42 U.S.C. 5170b(a)(3) and 42 U.S.C. 5192, to and from alternative locations for short or long-term accommodation or to return an individual or household to their pre-disaster primary residence or alternative location. Contrary to the comment, per IAPPG 1.1, eligible expenses may include one round trip airfare for all pre-disaster household members and household pets and service animals.
A few other commenters also misconstrued other areas of IHP policy.
With respect to the comment that IA should remove the obtain/maintain flood insurance requirement for applicants who receive less than $5,000 to repair their damaged structure located in a SFHA, FEMA's discretion to waive this requirement is limited by certain statutory provisions. Under the Flood Disaster Protection Act of 1973, FEMA may not approve any financial assistance for acquisition or construction purposes for use in any SFHA where the sale of flood insurance has been made available under the NFIA, 42 U.S.C. 4001
As directed by Executive Order 13985 on “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” and Executive Order 14091, “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” FEMA assessed whether underserved communities and their members face systemic barriers in accessing benefits under IHP and how any such barriers could be reduced. FEMA's assessment was informed by longstanding challenges individuals have reported facing in navigating IHP, the income project,
FEMA provides IHP financial assistance to applicants for uninsured or underinsured disaster-caused expenses up to the IHP cap for the applicable form of assistance. Pursuant to existing regulations at 44 CFR 206.113(a)(4) and (a)(6), however, insured applicants are only eligible for such assistance if the net insurance settlement amount from insurance is: (1) less than the maximum
DMA2K amended the Stafford Act primarily to authorize a program for predisaster mitigation, but also to streamline the administration of disaster relief and control the Federal costs of disaster assistance.
FEMA did not specifically provide a rationale for, or consider any alternatives to, comparing the amount of insurance proceeds to the IHP cap in the preamble to its 2002 regulation; however, by making it a condition of eligibility that the amount of the insurance proceeds an individual receives must be less than the maximum amount of IHP assistance available, FEMA essentially determined that any insurance payout an applicant receives should be deducted from the amount of the FEMA Verified Loss as if it were automatically duplicative of the assistance FEMA might be authorized to provide. The Stafford Act does not require this result: FEMA is authorized to provide financial assistance, and, if necessary, direct services, to individuals and households who, as a direct result of a major disaster, have necessary expenses and serious needs that they are unable to meet through other means.
FEMA's 2002 interpretation may have made sense in the context of DMA2K in which Congress expressed intent to control the costs of disaster assistance and established, for the first time via statute, low sub-caps on repair and replacement assistance.
This has resulted in an implementation inequity that penalizes the applicants with the most insurance coverage. Eligible applicants may receive the difference between the net insurance settlement amount and the amount of FEMA verified loss, up to the IHP cap. When an applicant's net insurance settlement amount from insurance is equal to or exceeds the IHP cap, FEMA determines that the applicant's need has been met by insurance and will not provide any additional assistance. In practice, what this means is that even when an applicant's net insurance settlement amount is less than the loss amount verified by FEMA (
Excluding from IHP financial assistance those insured applicants with a net insurance settlement amount that is equal to or exceeds the IHP cap can pose a significant obstacle to them achieving a permanent housing solution, especially for homeowners. An ineligible insured homeowner whose home is underinsured may be unable to afford the unmet financial need to repair the home. An ineligible renter may also find it difficult to obtain a permanent housing solution when faced with the cost of underinsured losses for personal property. In Table 2 below, which assumes an IHP cap for housing assistance of $42,500, both Applicants A and B have the same unmet need for home repairs, but only Applicant B is eligible for IHP financial assistance for no other reason than that their net insurance settlement amount is less than the IHP cap.
This potential inequity is compounded by the fact that the IHP cap for an eligible insured applicant is not reduced by the amount of their net insurance settlement. The end result is that, while Applicant A is not eligible for any IHP financial assistance (because their net insurance settlement amount exceeds the IHP cap), Applicant B is eligible for IHP assistance up to the full amount of the IHP cap. Furthermore, Applicant B is treated the same as Applicant C, an uninsured applicant; both applicants are eligible for IHP financial assistance to address their unmet need up to the full amount of the IHP cap. This further compounds the inequity for Applicant A, who had the most insurance protection.
FEMA's use of the IHP cap to limit eligibility for insured applicants creates challenges for disaster survivor recovery by limiting the ability of some applicants to achieve a permanent housing solution. Applicants that cannot fund the full repair costs of their homes are, notionally, more likely to remain in temporary housing for extended periods of time. Ultimately, by making these additional funds available to applicants under the IHP cap, the Agency may save funds currently used for financial or direct temporary housing of this population.
To help equitably address the unmet needs of insured applicants, and to more effectively assist them to achieve permanent housing solutions, FEMA considered the following options: (1) remove the IHP cap as a condition of eligibility for insured applicants; or (2) make the cost of the deductible eligible for insured applicants. Under the first option, FEMA would discontinue its application of the IHP cap against an applicant's net insurance settlement amount for the purpose of determining eligibility for IHP financial assistance. Instead, all insured applicants would be potentially eligible for IHP assistance irrespective of whether their net insurance settlement amount exceeds the IHP cap. The IHP cap would continue to limit the amount of IHP financial assistance that eligible applicants could receive to address their unmet need. During a 5-year period, only 0.4 percent of applicants with real-property insurance settlements were found to be ineligible for IHP assistance due to their net settlement amounts exceeding the IHP cap. Under this option, each of these ineligible applicants would have received approximately $24,000 in IHP financial assistance. Total costs to FEMA would have been approximately $398,000 ($365,000 in financial assistance and $33,000 for the cost of increased inspections). However, it may be the case that many potential applicants with net settlement insurance amounts greater than the IHP cap simply do not apply for IHP assistance. In that case, the total costs to FEMA could be significantly higher. Regardless, the impact to these applicants will be significant compared to uninsured IHP recipients and those with low levels of damage.
Under the second option, FEMA would authorize eligible applicants to receive IHP financial assistance to address the cost of their deductible, irrespective of their FEMA verified loss. Based on insurance documentation, FEMA could pay applicants for the amount of their deductible. In cases where the insured applicant does not feel they have an unmet need, no FEMA inspection would be required. Applicants with an unmet need would receive funds to address their unmet need, as determined by their FEMA verified loss, and their deductible. In many cases, FEMA provides a lower amount of IHP funds to repair elements of a home than an insurance company provides. Therefore, addressing applicants' unmet needs and deductibles could help insured applicants recover more quickly post-disaster. It could also incentivize applicants to choose higher dollar deductibles, which does not align with Agency goals to increase insurance coverage in the general population.
This option could be implemented individually or in conjunction with Option 1. While this option is easy to understand, in some cases, it may require FEMA to overpay applicants' unmet needs based on Table 3 below. Applicant D has no unmet need per FEMA's calculations, but will still receive payment for their deductible. Applicant E has an unmet need and receives payment for that need and the amount of their deductible.
FEMA ultimately determined that removing the IHP cap as a condition of eligibility for insured applicants would be the most equitable in meeting the recovery needs of all applicants to assist them in recovering from the impacts of disasters by achieving permanent housing solutions more effectively. FEMA's post-DMA2K interpretation that the IHP cap should act as a condition of eligibility may have been reasonable given that the purpose of DMA2K was to control the costs of disaster assistance. However, the continued application of this policy position despite clear Congressional intent to increase assistance to individuals and households, and the inequitable treatment of applicants with varying levels of insurance coverage has led FEMA to reconsider. FEMA did not consider options that would provide less assistance to applicants than we already provide because it would contravene Congressional intent.
In addition to equity, FEMA's intent is to reduce the complexity of our program so that it is more straightforward and user-friendly to navigate for all disaster survivors. As such, it makes sense to remove an arbitrary test that is difficult to explain or defend and instead provide assistance, up to the cap, for the unmet need not covered by insurance. Although the second option might increase the amount of assistance that insured applicants receive, it will not remedy the implementation inequity in which applicants who have more insurance coverage may receive less assistance to address unmet needs. The selected option increases assistance for insured applicants and will not decrease assistance for any other category of applicants; as such, there are no reliance interests FEMA must consider in making the change.
Through their authorizing statutes, both FEMA
When applying for FEMA assistance, applicants who indicate a need for SBA-dependent ONA are asked to provide their approximate annual household income and number of dependents. FEMA's NEMIS performs an automated comparison of the applicant's information to the SBA's minimum income table to determine whether the applicant could potentially qualify for an SBA loan to cover their SBA-dependent ONA need. Applicants whose income and number of dependents do not meet the SBA's minimum threshold are not referred to the SBA and are considered for FEMA SBA-dependent ONA. For internal tracking purposes, FEMA and the SBA categorize these applicants as Failed Income Test (FIT). FEMA does not take additional steps to verify FIT applicants' income or dependent information before awarding funds for verified SBA-dependent ONA expenses; these expenses may include Personal Property Assistance, Transportation Assistance, and Group Flood Insurance Policies.
Applicants whose income and dependent information meet the SBA's minimum income threshold are referred to the SBA to complete the loan application process. The SBA's loan application process consists of multiple steps at which the applicant's income, credit score, and debt-to-earnings ratio are assessed and, in certain cases, verified with the IRS and a private credit reporting agency. If at any point during the process the applicant is declined for a loan, the applicant is referred back to FEMA for consideration for SBA-dependent ONA.
The requirement to apply to the SBA for a loan before an applicant may be eligible for certain types of disaster assistance is a holdover regulatory requirement dating back to the implementation of the Disaster Relief Act of 1974
The IFG was a grant the FDAA could provide to States to administer to individuals and households, subject to national criteria, standards, and procedures established via regulation. The original implementing regulations did not include a requirement to apply to the SBA for a loan as a condition of eligibility before receipt of a grant under the IFG.
In 1988, the President signed the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988
In 2000, DMA2K
Neither the FDAA nor FEMA ever provided a specific rationale for, or considered any alternatives to, the determination that applicants must apply to the SBA for loans and be denied or demonstrate the assistance provided fails to meet their needs as a condition of eligibility for ONA. It is clear from the rulemaking documents and the placement of the language related to SBA loans in 44 CFR 206.191 that FEMA views the types of assistance both it and the SBA may provide as potentially duplicative and therefore believes it is necessary to establish procedures to prevent such a duplication. However, there is no specific explanation in the rulemaking documents which sets forth why the FDAA and FEMA decided that loans from the FmHA or SBA had to precede the delivery of ONA assistance in the sequence of delivery. It may be that FEMA viewed the SBA as required to be first in the sequence of delivery because the Stafford Act requires FEMA to provide assistance to individuals under IHP if the individuals have necessary expenses and serious needs which they are “unable to meet through other means”
In practice, the SBA requirement has created such a significant barrier to assistance that it has resulted in millions of potentially eligible applicants walking away from the disaster assistance process and therefore unable to address their necessary disaster expenses or serious needs. Based on data
The GAO completed a review of the IHP in 2020 and described the challenges and barriers associated with the SBA loan requirement as a problem that requires a solution.
The GAO report accurately identified the requirement to apply for an SBA loan as a longstanding issue. FEMA was sued in the wake of Hurricane Katrina where plaintiffs alleged, among other claims, that FEMA had violated 42 U.S.C. 5174(a)(2) when it unlawfully denied applicants temporary housing assistance by inaccurately telling them they had to first apply to the SBA for a loan.
FEMA has attempted to remedy the confusion regarding the SBA requirement by explaining it in guidance documents, fact sheets, press releases, and videos.
FEMA RFI commenters also identified the SBA loan requirement as an inequitable barrier to entry into the program. The commenters stated the process is unclear and places an unnecessary burden on applicants; creates a disproportionate barrier; and may, at best, lead to a delay or, at worst, cause a functional barrier in the registration process.
Contrarily, the Department of Homeland Security's Office of Inspector General (DHS-OIG) criticized FEMA for not instituting enough controls over the SBA loan requirement process and recommended that FEMA collect and verify
FEMA explored multiple options to improve its verification of self-reported income in response to DHS-OIG's concerns. FEMA first considered whether it could require applicants to submit more documentation to verify income. Examples of acceptable documentation would include the previous year's tax returns or pay-related documents from an applicant's employer. Applicants whose documentation indicated that their income and dependent information met the SBA's minimum threshold would be referred to the SBA for loan consideration.
FEMA could take steps to verify income for FIT applicants in coordination with external government partners. This involves certain legal challenges FEMA would have to overcome. The SBA has specific legislative authority, which FEMA does not have, to verify an applicant's income with the IRS as part of its loan application process. The IRS has indicated they could only pursue data sharing if there were specific statutory authority for it.
FEMA could purchase the services of a privately operated credit reporting company which can verify real-time employment and income data for an individual. This would require FEMA to make system changes to interface with the company's data and add this additional verification against the self-reported income. The service provided by the company may be able to provide an applicant's current income, but it is unclear if that would accurately portray the household's annual income. Variance in household income immediately after a disaster is very common and there are a multitude of reasons why an applicant's reported income immediately after a disaster would not exactly match what is reported by the private sector credit reporting company. This option would not have a significant impact on the timing of the applicant's assistance, unless the private sector credit reporting company returns a higher income than what the applicant self-reported, in which case, the applicant would have to apply to SBA.
FEMA also explored utilizing a credit check to determine which applicants should be referred to the SBA, rather than solely the FIT table. The SBA currently uses a credit check in the later stages of their loan application process and FEMA could mirror the credit score thresholds that the SBA has already developed to determine which applicants should be referred to SBA for further evaluation. FEMA would need to establish a contract with a third-party vendor that provides credit scores. Unlike the SBA, which utilizes detailed information from the credit report on the applicant's debts, FEMA would only need the credit score. As the credit check can be performed electronically and completed in real-time, it should not delay assistance to applicants. However, FEMA would need to inform applicants their credit may be checked when they apply for disaster assistance which could cause hesitation for some applicants to participate in the FEMA disaster assistance process and increase the barrier to assistance.
Ultimately, none of the options FEMA explored to further verify applicant information will eliminate the longstanding inequitable barrier to access to the IHP presented by the SBA loan requirement. The requirement causes delay and confusion. FEMA has attempted to communicate the requirement more clearly; however, the confusion surrounding it has persisted. The historically low percentage of applicants with SBA-dependent needs identified at inspection who choose to apply for and accept an SBA loan for these needs indicates a gap in the correct recovery process which this change would address. Removal of the requirement addresses FEMA's obligation under Executive Order 13985 and Executive Order 14091 to identify and address barriers to opportunities and benefits and aligns with the goal of the 2022-2026 FEMA Strategic Plan to instill equity as a foundation of emergency management by removing barriers to FEMA programs through a people first approach and achieving equitable outcomes for those we serve.
Section 408 of the Stafford Act, 42 U.S.C. 5174, authorizes FEMA to provide housing assistance to applicants to respond to the disaster-related housing needs of individuals and households who are displaced from their predisaster primary residences or whose predisaster primary residences are rendered uninhabitable, or with respect to individuals with disabilities, rendered inaccessible or uninhabitable, as a result of damage caused by a major disaster. A subcategory of housing assistance is home repair assistance which FEMA may provide to repair disaster-damaged owner-occupied primary residences to a safe and sanitary living or functioning condition.
Prior to the changes in this IFR, 44 CFR 206.111 defined “uninhabitable” to mean the dwelling is not safe, sanitary or fit to occupy, but did not directly define “habitable” or “fit to occupy.” FEMA defined “safe” as secure from disaster-related hazards or threats to occupants. FEMA defined “sanitary” as free of disaster-related health hazards. FEMA defined “functional” as an item or home capable of being used for its intended purpose. In 44 CFR 206.117(b)(2)(ii), FEMA provided a list of components of the home for which it would provide repair assistance. In 44 CFR 206.117(b)(2)(i), FEMA provided that FEMA will repair each component
These regulations reflected FEMA's interpretation that the Stafford Act's requirement that housing assistance be provided for “disaster-related” needs prohibits FEMA from providing home repair assistance for pre-existing damage, which is where applicants have damage to their homes that occurred prior to the disaster and was not a result of the disaster or worsened by the disaster. FEMA has also referred to pre-existing damage as “deferred maintenance.”
A version of the current language has been in place since 2002 when FEMA issued an NPRM
In 2012, FEMA issued a Notice of Proposed Rulemaking (NPRM)
These limitations have been a regular source of frustration for survivors and disaster recovery community members,
At the time FEMA made these determinations, it may have made sense to limit assistance under IHP; however, Congress has since indicated clear intent to increase the amount of assistance FEMA provides to individuals and households.
In the first option, FEMA considered putting forth a policy interpretation of what might make a residence “unfit” to occupy.
In the second option, FEMA considered amending its regulations to remove the specific requirements related to pre-existing damage so that it could better address livability conditions. This required FEMA to re-visit its earlier interpretations of statutory authority. Although the Stafford Act uses the term disaster-related, it is not applied specifically to the subcategory of repair assistance; instead, it applies generally to the initial determination of whether to provide housing assistance at all.
This IFR's changes to the definitions of “uninhabitable,” “safe,” and “sanitary,” and the eligibility criteria for home repair assistance remove the regulatory limitations associated with pre-existing damage. Addressing this issue via amendment to the regulations more appropriately meets congressional intent that FEMA's assistance allows applicants to repair homes “to” a safe and sanitary living or functioning condition. Applicants will be in a better position to realistically recover from the disaster by receiving assistance to repair or replace real property components of the home that are not covered by insurance and are necessary to ensure the safety or health of the occupant. As a result, applicants will be less reliant on FEMA's other forms of housing assistance, such as temporary housing assistance, and will be able to return more quickly to a safe and functioning residence. This will expand assistance and address longstanding complaints that FEMA assistance does not adequately address survivor needs; as such, there are no reliance interests that FEMA considered in making these changes.
FEMA has the authority under Section 408(e)(2) of the Stafford Act, 42 U.S.C. 5174(e)(2), implemented as ONA at current 44 CFR 206.119(c)(6)(ii), which provides that FEMA in consultation with the State may provide financial assistance for “necessary expenses or serious needs.” FEMA has determined that the most pressing necessary expenses and serious needs generally occur during the immediate aftermath of disasters. Individuals and households displaced from their homes often need immediate assistance to be able to pay for short-term lodging or serious needs. In some instances, the immediate funds would be sufficient to address the short-term needs and the individuals may be able to return to their pre-disaster residences without additional support.
FEMA has established some short-term solutions for housing such as LER and initial rental assistance under its Stafford Act authority to provide temporary housing assistance at Section 408(c)(1)(A)(i), and it has offered expedited assistance for serious needs under its ONA authority at Section 408(e)(2) in the form of debit cards, or CNA. FEMA has, however, attached certain criteria to the eligibility for or expenditure of such assistance that has had the unintended consequence of impacting longer-term needs or resulting in the inequitable distribution of such benefits. FEMA provides LER via reimbursement for hotels, motels, or other short-term lodging while an applicant is displaced from his or her primary residence,
However, FEMA's previous interpretation has produced inequities in disaster events; FEMA has been sued by disaster applicants alleging that FEMA provided them with initial rental assistance without clearly explaining the purpose of the funds and, when applicants spent the funds on other necessities, FEMA denied them for continued temporary housing assistance because they could not produce receipts verifying the funds were spent on rent.
FEMA determined it could improve upon and expand its existing authority by establishing two new types of assistance to address immediate unmet needs under the IHP's ONA provision: Serious Needs Assistance and Displacement Assistance. Serious Needs Assistance and Displacement Assistance would both be subject to the ONA cost share and available for every disaster in which IHP is authorized. Applicants will have to meet all standard IHP eligibility criteria under 44 CFR 206.113. FEMA will not require receipts documenting the use of the funds for either form of assistance. Serious Needs Assistance will take the place of CNA, and, in this improved version, FEMA may provide funds to eligible survivors to assist with the additional costs they incur due to being impacted or displaced by a disaster (including evacuation). Survivors would be able to use the funds for immediate or serious needs such as water, food, first aid, infant formula, diapers, personal hygiene items, or fuel for transportation. These needs will vary according to each applicant and FEMA will not require receipts documenting the use of this assistance. Serious Needs Assistance will be available for every disaster in which IHP is authorized instead of only being available in specific geographic areas upon the request of STT government.
FEMA is establishing Displacement Assistance to provide funds for short-term living arrangements based on a timeframe established by FEMA and a nightly room rate approved in the State Administrative Option as required in § 206.120(b). Displacement Assistance will be available for eligible survivors whose homes are uninhabitable to assist them with securing temporary lodging while they make repairs or pursue temporary housing. Applicants who receive Displacement Assistance can still request and receive Initial Rental Assistance when they are ready to move into temporary housing; however, FEMA created this assistance to fill a gap for disaster survivors who may not need long-term rental assistance.
FEMA considered two options for limiting Serious Needs Assistance and Displacement Assistance. FEMA considered: (1) limiting the population who could receive Serious Needs Assistance to only those applicants who had been displaced by a disaster or who reported a need for shelter as a result of the disaster; or (2) limiting the geographic area that might be eligible for Serious Needs Assistance to only those areas with certain impacts. The first option would not meet the needs of disaster applicants who have immediate, unmet needs that are not caused by displacement. For example, if there are widespread power outages in an area that did not cause an applicant to be displaced, but might have caused refrigerated food or medicine to expire, an applicant might need immediate assistance to replace those necessary items. The second option would potentially delay the disbursement of Serious Needs Assistance beyond the initial disaster period to allow FEMA to gather information about the geographic impacts of the disaster. FEMA often does not have the detailed information necessary about the impacts of a disaster in its immediate aftermath to make such geographic determinations. Such a delay would frustrate the intent to provide immediate assistance and may compound the effects of unmet serious needs.
There are multiple benefits to improving FEMA's implementation of these types of immediate needs assistance. Lower-income groups and minorities suffer disproportionately from disaster and recover less quickly than more privileged residents. Natural disasters can compound existing inequities and act as tipping points, consuming savings, and pushing households into financial and economic insecurity. According to the Federal Reserve, 32 percent of Americans could not cover an emergency expense of $400 with cash or its equivalent, with 11 percent saying they would be unable to pay the expense by any means.
On September 30, 2002, FEMA issued regulations on the then-new Individuals and Households Program.
In the first sentence of § 206.110(a), FEMA states that this section implements the policy and procedures set forth in the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (Stafford Act), 42 U.S.C. 5174. This is consistent with the first sentence of current § 206.110(a), except for FEMA removing “section 408 of;” adding “as amended (Stafford Act)” for clarity; and removing “as amended by the Disaster Mitigation Act of 2000” for clarity. FEMA makes these edits for public ease of reference, as a United States Code cite is more accessible to the public and referencing the section of the Stafford Act only increases the length of the regulation. Plus, there have been many amendments to the Stafford Act since DMA2K. Instead of including all of the amendments to the Stafford Act, FEMA removes the reference to DMA2K and uses “as amended.”
In the first sentence of § 206.110(b), FEMA states that no individual or household will receive financial assistance greater than $25,000 under subpart D with respect to a single major disaster or emergency for the repair or replacement of their pre-disaster primary residence. This is consistent with the first sentence of current § 206.110(b), except for FEMA adding the phrase “for the repair or replacement of their pre-disaster primary residence” to codify section 1212 of the DRRA which amended 408(h) of the Stafford Act, 42 U.S.C. 5174, to remove Temporary Housing Assistance from any financial maximum retroactive to disasters declared on or after August 1, 2017. Thereby, financial assistance for temporary housing expenses are no longer limited to a maximum award amount. Financial assistance for home repair and replacement for owner-occupied homes is still limited to a maximum award amount.
FEMA adds a new second sentence to § 206.110(b), FEMA states that no individual or household will receive financial assistance greater than $25,000 under subpart D with respect to a single major disaster or emergency for Other Needs Assistance. FEMA adds this new language for clarity since section 1212 of the DRRA amended 408(h) of the Stafford Act, 42 U.S.C. 5174, by separating ONA, so ONA and Home Repair Assistance/Home Replacement Assistance have equal, independent financial maximums retroactive to disasters declared on or after August 1, 2017.
In the third sentence (currently the second sentence) of § 206.110(b), FEMA states that FEMA will adjust the $25,000 limits annually to reflect changes in the Consumer Price Index (CPI) for All Urban Consumers that the Department of Labor publishes. This is consistent with the current second sentence of § 206.110(b), except for FEMA replacing “limit” with “limits” for grammar purposes, since there are multiple $25,000 limits that FEMA adjusts annually.
FEMA adds a new paragraph (b)(1) to § 206.110 stating that the maximum amount of financial assistance excludes rental assistance under § 206.117(b)(1)(i) and lodging expense reimbursement under § 206.117(b)(1)(i). FEMA adds this new language for clarity; as, Rental Assistance and Lodging Expense Reimbursement are not counted toward the financial housing assistance maximum award.
FEMA adds a new paragraph (b)(2) to § 206.110 stating that the maximum amount of financial assistance excludes expenses to repair or replace eligible damaged accessibility-related real property improvements and personal property for individuals with disabilities. FEMA adds this new language for clarity since section 1212 of the DRRA removed financial assistance maximum award limits for accessibility-related real and personal property items for applicants with disabilities. IAPPG 1.1 references specific disaster-damaged accessibility real property items that can be paid in addition to the financial assistance maximum award amount for Housing Assistance (Chapter 3: IV.E. Home Repair Assistance).
In the second sentence of § 206.110(c), FEMA states that FEMA will determine the appropriate types of housing assistance to be provided under § 206.110 based on considerations of cost effectiveness, convenience to the individuals and households and the suitability and availability of the types of assistance. This is consistent with the current second sentence of § 206.110(c), except for FEMA revising “shall” to “will” for purposes of plain language.
In the fourth sentence of § 206.110(c), FEMA states that temporary housing and repair assistance must be utilized to the fullest extent practicable before other types of housing assistance. This is consistent with the current fourth sentence of § 206.110(c), except for FEMA revising “shall” to “must” for purposes of plain language.
In § 206.110(d), FEMA states that eligibility for Federal assistance under subpart D is limited to losses or expenses resulting from damage that occurred during the dates of the incident period established in a presidential declaration that a major disaster or emergency exists, except that reasonable lodging expenses that are incurred in anticipation of and immediately preceding such event may be eligible for Federal assistance under
In the second sentence of § 206.110(e), FEMA states that the Assistant Administrator for the Recovery Directorate may extend the period of assistance if he/she determines that due to extraordinary circumstances an extension would be in the public interest. This is consistent with current second sentence § 206.110(e), except for FEMA's technical edit of replacing “Disaster Assistance” with “Recovery,” as it represents a past FEMA organization change and replacing “this period” with “the period of assistance” to align with the paragraph heading (e),
In the first sentence of § 206.110(h), FEMA states that in accordance with the requirements of the Stafford Act, 42 U.S.C. 5155, FEMA will not provide assistance under subpart D when any other source has already provided such assistance or when such assistance is available from any other source. This is consistent with the first sentence of current § 206.110(h), except for FEMA removing “section 312 of” since referencing the section of the Stafford Act just increases the length of the regulation.
FEMA removes current § 206.110(h)(2), which states “applicable benefits are exhausted,” as it is unnecessary, since an applicant does not have to exhaust benefits as a condition for FEMA to provide assistance to insured applicants under subpart D. FEMA's current regulations assume this is necessary to prevent a duplication of benefits, but FEMA will only be providing assistance for items or repairs that are not covered or adequately addressed by the applicant's insurance, so it should not be necessary for them to exhaust their insurance benefits before they receive IA.
FEMA is not providing applicants all of the money they need for their recovery. The eligibility factor regulations at § 206.113(a)(5) already ensure that applicants accept all assistance from other sources for which they are eligible and that they accept all assistance from their insurance, if they have any.
Section 206.110(h)(2) is consistent with current § 206.110(h)(3), except for the change to the paragraph structure.
In § 206.110(h)(3), FEMA states that, among other exceptions to the principle that FEMA will not provide assistance when assistance is available from any other source, FEMA may provide assistance to insured applicants when applicants cannot use their insurance because there is no housing on the private market. This is consistent with current § 206.110(h)(4), except FEMA replaced “housing is not available” with “applicants cannot use their insurance because there is no housing” for clarity.
In § 206.110(i)(1), FEMA states that except as provided in § 206.110(i)(2), the Federal share of eligible costs paid under subpart D is 100 percent. This is consistent with current § 206.110(i)(1), except for FEMA replacing “shall be” with “is” for purposes of plain language.
In § 206.110(i)(2) through the first sentence of § 206.110(i)(2)(ii), FEMA states that Federal and State cost shares for “Other Needs” assistance under the Stafford Act, 42 U.S.C. 5174(e) and (f), are as follows: the Federal share is 75 percent; and the non-Federal share is 25 percent and must be paid from funds made available by the State. This is consistent with the current § 206.110(i)(2) through the first sentence of § 206.110(i)(2)(ii), except for FEMA removing “subsections 408 (e) and (f) of” and adding “42 U.S.C. 5174(e) and (f),” for public accessibility; replacing “will be” with “are,” “shall be” with “is,” and “replacing “shall” with “must” for purposes of plain language; and adding “is 25 percent and” after “non-Federal share” for clarity.
In the second sentence of § 206.110(i)(2)(ii), FEMA states that if the State does not provide the non-Federal share to FEMA before FEMA begins to provide assistance to individuals and households under the Stafford Act, 42 U.S.C. 5174(e), FEMA will still process applications. This is consistent with the second sentence in current § 206.110(i)(2)(ii), except for FEMA removing “subsection 408(e) of” and adding “42 U.S.C. 5174(e),” for ease of reference, as a United States Code cite is more accessible to the public and referencing the section of the Stafford Act just increases the length of the regulation.
In the fourth sentence of § 206.110(i)(2)(ii), FEMA states that if the State does not provide such reimbursement on a monthly basis, then FEMA will issue a billing notice to the State on a monthly basis for the duration of the program. This is consistent with the fourth sentence of current § 206.110(i)(2)(ii), except for FEMA replacing “Bill for Collection” with “billing notice” for clarity. The United States Treasury Department (Treasury) tends to use the term “billing notices” when referring to these documents,
In the fifth sentence of § 206.110(i)(2)(ii), FEMA states that FEMA will charge interest, penalties, and administrative costs on delinquent billing notices in accordance with the Debt Collection Improvement Act. This is consistent with the fifth sentence of current § 206.110(i)(2)(ii), except for FEMA replacing “administrative fees” with “administrative costs” and replacing “Bills for Collection” with “billing notices” for clarity. Treasury uses the terms “costs” and “administrative costs” instead of “fees” and “administrative fees” in the debt collection context,
In the sixth sentence of § 206.110(i)(2)(ii), FEMA states that cost shared funds, interest, penalties and administrative costs owed to FEMA through delinquent billing notices may be offset from other FEMA disaster assistance programs (
In § 206.110(j)(2), FEMA states that under the Stafford Act, 42 U.S.C. 5174(f)(2), FEMA must share applicant information with States in order for the States to make available any additional State and local disaster assistance to individuals and households. This is consistent with current § 206.110(j)(2), except for FEMA removing “section 408(f)(2) of” since referencing the section of the Stafford Act only increases the length of the regulation.
In § 206.110(j)(2)(ii), FEMA states that States receiving such applicant information must not further disclose the information to other entities, and must not use it for purposes other than providing additional State or local disaster assistance to individuals and households. This is consistent with current § 206.110(j)(2)(ii), except for FEMA replacing “must” with “shall” in
In the first sentence of § 206.110(k)(2), FEMA states that individuals or households that are located in a special flood hazard area may not receive Federal Assistance for National Flood Insurance Program (NFIP)—insurable real and/or personal property, damaged by a flood, unless the community in which the property is located is participating in the NFIP (See 44 CFR 59.1), or the exception in 42 U.S.C. 4105(d) applies. This is consistent with the first sentence in current § 206.110(k)(2), except for FEMA replacing “(
In the first sentence of § 206.110(k)(3)(i), FEMA states that as a condition of the assistance and in order to receive any Federal assistance for future flood damage to any insurable property, individuals and households named by FEMA as eligible recipients under the Stafford Act, 42 U.S.C. 5174, who receive assistance, due to flood damage, for acquisition or construction purposes under subpart D must buy and maintain flood insurance, as required in 42 U.S.C. 4012a, for at least the assistance amount. This is consistent with the current first sentence of § 206.110(k)(3)(i), except for FEMA removing “section 408 of” to decrease the length of the regulations; adding “42 U.S.C. 5174” for accessibility; and revising “damages” to “damage” for grammar purposes.
In the first sentence of § 206.110(k)(3)(i)(A), FEMA states that if the applicant is a homeowner, flood insurance coverage must be maintained at the address of the flood-damaged property for as long as there is a residential building (See 44 CFR 59.1) at the address. This is consistent with the current first sentence of § 206.110(k)(3)(i)(A), except for FEMA adding “there is a residential building (See 44 CFR 59.1) at” before “the address” and removing “exists” for clarity. An address does not “exist.” Rather, the language, for as long as there is a residential building at the address, is more precise.
In § 206.110(m), FEMA states that assistance provided under subpart D generally does not have the potential to affect historic properties and thus FEMA has no further obligations under the National Historic Preservation Act, 54 U.S.C. 306108, with the exception of ground disturbing activities and construction related to §§ 206.117(b)(1)(ii) (direct housing), 206.117(b)(2)(ii)(F) (repair assistance for privately owned roads and bridges), 206.117(b)(3) (replacement assistance), and 206.117(b)(4) (permanent housing construction.) This is consistent with current § 206.110(m), except for FEMA replacing “is exempted from review in accordance with section 106 of” with “FEMA has no further obligations under” for clarity and since referencing the section of the National Historic Preservation Act only increases the length of the regulation; adding “54 U.S.C. 306108” for ease of reference; replacing “Temporary” with “direct,” adding “206.117(b)(2)(ii)(F) (repair assistance for privately owned roads and bridges),” and replacing “Replacement housing” with “replacement assistance” for clarity; and replacing “Permanent housing construction” with “permanent housing construction” to align with section formatting.
With regard to the changes in § 206.110(m), the National Historic Preservation Act, 54 U.S.C. 306108, states that the head of any Federal agency having direct or indirect jurisdiction over a proposed Federal undertaking or federally assisted undertaking in any State, prior to the approval of the expenditure, shall take into account the effect of the undertaking on any historic property. If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under Section 106 of the National Historic Preservation Act. Based on over 20 years of practice, since § 206.110(m) was published, FEMA has determined that the proposed undertaking, excluding the stated exceptions, does not have the potential to cause effects on historic properties. Therefore, FEMA changes the language in § 206.110(m) to align it with the applicable statutory and regulatory language (
In § 206.110(n), FEMA adds a new paragraph heading of “Severability” for consistency with standards established by the
A severability clause is a standard legal provision. It indicates FEMA's intent that if a court finds that a specific provision of a rule is unlawful, the court should allow the remainder of the rule to survive. Those provisions that are unaffected by a legal ruling can be implemented by an agency without requiring a new round of rulemaking simply to promulgate provisions that are not subject to a court ruling.
FEMA is publishing this IFR to amend its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. Specifically, the IFR increases eligibility for home repair assistance by amending the definitions and application of the terms safe, sanitary, and functional, allowing assistance for certain accessibility-related items, and amending its approach to evaluating insurance proceeds; allows for the re-opening of the applicant registration period when the President adds new counties to the major disaster declaration; simplifies the documentation requirements for continued temporary housing assistance; simplifies the appeals process; simplifies the process to request approval for a late registration; removes the requirement to apply for a Small Business Administration loan as a condition of eligibility for ONA; and establishes additional eligible assistance under ONA for serious needs, displacement, disaster-damaged computing devices and essential tools for self-employed individuals. FEMA also makes revisions to reflect changes to statutory authority that have not yet been implemented in regulation, to include provisions for utility and security deposit payments, lease and repair of multifamily rental housing, child care assistance, maximum assistance limits, and waiver authority.
FEMA believes that its authority to implement each of these provisions is well-supported in law and practice and should be upheld in any legal challenge. FEMA also believes that its exercise of its authority reflects sound policy. However, in the event that any portion of the interim final rule is declared invalid, FEMA intends that the various provisions be severable. The provisions are not so interconnected that the rule's efficacy depends on every one of them remaining in place—implementation of the different provisions is sufficiently distinct that FEMA's aim of increasing equity and easing entry to the IA Program would still be furthered by
In § 206.111, FEMA adds terms for “Destroyed,” “Essential tools,” “Recertification,” “Repairs,” and “State” and to revise the definitions of “Alternative housing resources,” “Dependent,” “Displaced applicant,” “Eligible hazard mitigation measures,” “Fair market rent,” “Financial ability,” “Functioning,” “Housing costs,” “Manufactured housing sites,” “Owner-occupied,” “Permanent housing plan,” “Reasonable commuting distance,” “Safe,” “Sanitary,” “Serious need,” and “Uninhabitable.”
FEMA revises the term “Financial ability” to mean the applicant's capability to pay 30 percent of gross post-disaster household income for housing. When computing financial ability, extreme or unusual financial circumstances may be considered by FEMA. This is consistent with the current definition of the term “Financial ability,” except for FEMA moving the clause “30 percent of gross post-disaster income for housing” to earlier in the definition, replacing “the Regional Administrator” with “FEMA” to ensure continued consistency in processing across disasters at the national level when computing “Financial ability” in extreme or unusual financial circumstances, and removing the second and third sentences of the current definition.
(1)
(2)
(3)
This is consistent with the current definition of the term “Manufactured housing sites,” except for FEMA removing the phrase “government or privately owned mobile homes” for clarity and deleting the comma after “travel trailers” for grammar purposes. FEMA deletes “government or privately owned” as there is not something other than government or privately owned. FEMA deletes “mobile homes” to align with HUD's regulations and as FEMA has moved away from the term “mobile home” generally, except when referring to a pre-disaster mobile home that an applicant may have occupied.
Also, the above definition is consistent with the current definition of the subterm “Group site,” except for FEMA adding “or FEMA, if determined that such site would be more economical or accessible than one that the State or local government provides” before “that” for clarity and consistency. Currently, § 206.117(b)(1)(ii)(E)
(1) The legal owner with verifiable documentation; or
(2) A person who does not hold formal title to the residence and pays no rent, but can produce verifiable documentation demonstrative of legal responsibility including tax payment receipts; receipts for major repairs, maintenance, or improvements of the residence; court documents, a letter from a public official, or, for mobile home or travel trailer owners residing in a commercial park, a letter from the mobile home park owner or manager; or
(3) A person who has verifiable documentation of lifetime occupancy rights with formal title vested in another.
This is consistent with the current term “Owner-occupied,” except for FEMA adding “with verifiable documentation; or ” after “legal owner” in paragraph (1) for clarity and to avoid being overly limiting; adding “verifiable documentation of ” before “lifetime” in paragraph (3) for clarity; and replacing “is responsible for the payment of taxes or maintenance of the residence” with “can produce verifiable documentation demonstrative of legal responsibility including tax payment receipts; receipts for major repairs, maintenance, or improvements of the residence; court documents, a letter from a public official, or, for mobile home or travel trailer owners residing in a commercial park, a letter from the mobile home park owner or manager” in subparagraph (2) for clarity. FEMA has already implemented all of the proposed changes to the definition of the term “Owner-occupied” via the September 2, 2021,
Under FEMA's current regulations, if an applicant's primary residence had existing health hazards prior to a disaster, the applicant would not be eligible for assistance to repair those hazards. The changes to the definitions of “safe” and of “sanitary” allow FEMA to provide assistance for repairing those hazards. For example, under the changes, if an applicant's primary residence had a leaky roof prior to a disaster, that leak will be eligible for repair as long as the primary residence incurred some disaster damage and repair or replacement of the roof was required to make the home sanitary. This is consistent with 42 U.S.C. 5174 and will help FEMA provide disaster assistance in a more fair and equitable manner.
In the first sentence of § 206.112(b), FEMA states that FEMA may extend the registration period when the State requests more time to collect registrations from the affected population. This is consistent with the first sentence of current § 206.112(b), except for FEMA replacing “the regional administrator or his/her designee” with “FEMA” to ensure continued consistency in processing across disasters at the national level.
In the second sentence of § 206.112(b), FEMA states that FEMA may also extend the standard registration period when necessary to establish the same registration deadline for contiguous counties or States. This is consistent with the second sentence of current § 206.112(b), except for FEMA replacing “the Regional Administrator or his/her designee” with “FEMA” to ensure continued consistency in processing across disasters at the national level.
In § 206.112(c), FEMA adds a new paragraph heading of “Reopening of the registration period” for consistency with standards established by the
In the second sentence of § 206.112(d), FEMA states that we will process late registrations for those registrants who explain the reason for the delay in their registration. This is consistent with the second sentence of current § 206.112(c), except for FEMA replacing “provide suitable documentation to support and justify” with “explain” as requiring documentation places a burden on applicants to produce the documents and can slow the provision of assistance to applicants. It is also generally accepted that underserved populations are most likely to struggle with producing suitable documentation.
FEMA's current policy
• Record of hospitalization, illness, or disability of the applicant or an immediate family member;
• Record of death for an immediate family member; or
• Proof of personal or business travel that kept the applicant out of the area for the full application period.
Additionally, FEMA received the following comment in response to the RFI:
The barriers for an applicant to access FEMA assistance should be as minimal as possible. To that end, [the commenter] requests that Congress accept any and all applications received during the thirty-day grace period after the deadline has passed. Currently, CFR requirements state that an applicant must provide “suitable documentation” to justify the late application. There are myriads of valid reasons why applicants may be late to apply and forcing them to justify why their particular reason should count is inappropriate and unnecessary.
In the past 10 years, FEMA has approved 51 percent of the late applications received. In many disasters, the disaster staff worked closely with survivors who submitted late applications to explain the necessary documentation and help gather it from the applicant. Simplifying the process for applicants will also allow this staff more time to support other elements of disaster recovery and applicants with other ineligibility reasons.
The language surrounding “suitable documentation” has been in FEMA's regulations since the IHP regulations went into effect in 2002. Generally, requiring documentation has been a means for FEMA to validate that there is a disaster-related need. However, any applicants approved for further consideration based on their late application status still have to meet all the eligibility requirements required of applicants who applied during the application period (
This change ultimately benefits applicants and lowers the documentation burden for receiving eligibility consideration for IHP assistance for any disaster survivor who registers during the late application period, while also providing FEMA the ability to ensure there is a disaster-related reason for the late application. There are no expected negative impacts for disaster survivors in making this change.
FEMA has also decided to accept more reasons from applicants for late applications. These include:
• Incarceration;
• Victim of human trafficking;
• On-going domestic situations where persons in the same household posed an immediate threat to other family members, resulting in a separation of the family unit; or
• Major life events that occurred during the initial registration period (
FEMA considered the following policy alternatives: making no change; updating the language to no longer require suitable documentation; or removing the requirement for applicants to justify their late application at all. Making no change maintains a substantial applicant burden that slows the provision of assistance and likely impacts underserved populations disproportionately. While the current documentation requirement impacts a relatively small population's eligibility, it ultimately denies access to any form of FEMA IHP assistance if the applicant cannot provide documentation justifying the reason for their late application. Removing the requirement for any justification, verbal or otherwise, essentially removes any difference between the standard application period and the late application period which are identified as separate and distinct time periods.
In the first sentence of § 206.113(a), FEMA states that in general, FEMA may provide assistance to individuals and households who qualify for such assistance under the Stafford Act, 42 U.S.C. 5174, and subpart D. This is consistent with the first sentence of current § 206.113(a), except for FEMA removing “section 408 of” and adding “42 U.S.C. 5174” after “the Stafford Act,” for clarity and public ease of reference.
In § 206.113(a)(1), FEMA states that FEMA may only provide assistance when the individual or household has incurred a disaster-related necessary expense and serious need in the State in which the disaster has been declared, without regard to their residency in that State. This is consistent with current § 206.113(a)(1), except for FEMA replacing “or” with “and” before “serious need,” as a codification of a current existing policy and practice since FEMA has always allowed applicants to receive assistance for both a necessary expense and a serious need without regard to their residency in that State and FEMA capitalizing “State” in § 206.113(a)(1), when used as a noun.
FEMA removes the current sentence at § 206.113(a)(4), which states that an eligibility factor under which FEMA may provide assistance is in a situation where the applicant has insurance, when the insured individual or household's insurance proceeds are less than the maximum amount of assistance FEMA can authorize and the proceeds are insufficient to cover the necessary expenses or serious needs. FEMA removes current § 206.113(a)(4), as an applicant may only receive assistance for real or personal property through the IHP when their insurance proceeds are less than the FEMA Verified Loss (FVL) and the applicable HA or ONA maximum. Per 42 U.S.C. 5174, FEMA can assist underinsured applicants, but the current regulations limit the assistance to applicants who receive less than $42,500 in real or personal property from their insurance company. FEMA identified the need to update FEMA's current regulations to allow for more equity in the IHP when FEMA determines the unmet needs of applicants by comparing their net insurance settlements to the FVL. For the reasons described earlier, the IFR limits the requirement to compare insurance proceeds to the financial HA or ONA maximum.
In § 206.113(a)(4), FEMA states that an eligibility factor under which FEMA may provide assistance is in a situation where the applicant has insurance, but the applicant cannot use their insurance because housing is not available on the private market. In § 206.113(a)(4), FEMA is consistent with current § 206.113(a)(5), except for FEMA adding “but the applicant cannot use their insurance” after “insurance,” and replacing “when” with “because” for clarity. FEMA is incorporating this clarifying language to apply to applicants who have insurance but are unable to use their Additional Living Expenses or Loss of Use coverage, as there is no housing available on the private market.
In § 206.113(a)(5), FEMA states that an eligibility factor under which FEMA may provide assistance is in a situation where the applicant has insurance, when the insured individual or household has accepted all assistance from other sources for which he, she, or they are eligible, including insurance, and that assistance and insurance is insufficient to cover the necessary expense and serious need. In § 206.113(a)(5), FEMA is consistent with current § 206.113(a)(6), except for FEMA replacing the phrase “when the insured individual or household's insurance
Section 206.113(a)(6) is consistent with current § 206.113(a)(7), except for the changes to the paragraph structure. Section 206.113(a)(7) is consistent with current § 206.113(a)(8), except for the changes to the paragraph structure and the removal of “and” at the end of the paragraph. Section 206.113(a)(8) is consistent with current § 206.113(a)(9), except for the changes to the paragraph structure and the addition of “; and” at the end of the paragraph to allow for a new paragraph § 206.113(a)(9).
In new § 206.113(a)(9), FEMA states that FEMA may provide assistance with respect to home repair for accessibility-related items, if an applicant meets the following conditions: (i) the applicant is either an individual with a disability as defined in 42 U.S.C. 5122 whose disability existed prior to the disaster and whose primary residence was damaged by the disaster, or an individual with a disability as defined in 42 U.S.C. 5122 whose disability was caused by the disaster and whose primary residence was damaged by the disaster; (ii) the real property component is necessary to meet the accessibility-related need of the household; and (iii) the real property component is not covered by insurance or any other source.
In response to public comments, FEMA has also changed the regulatory text at § 206.117(b)(2) and a new § 206.113(a)(9) as a part of this IFR. The changes will allow FEMA flexibility to provide financial assistance to applicants for the installation or construction of real property items that were not present in the home prior to the disaster. Specifically, these changes allow IHP to expand its existing policy,
Not only does the new regulatory text at § 206.113(a)(9) list the home repair for accessibility-related items eligibility factors, but it also clarifies that FEMA uses the term an “individual with a disability” as defined in section 102(7) of the Stafford Act, 42 U.S.C. 5122. Unfortunately, section 102(7) of the Stafford Act is outdated and states that the term “individual with a disability” means an individual with a disability as defined in Section 3(2) of the Americans with the Disabilities Act of 1990 (42 U.S.C. 12102(2)). The ADA was amended in 2008 and the definition of disability was moved from subparagraph (2) to subparagraph (1). Congress has not amended the Stafford Act to reflect this change; therefore, FEMA is interpreting the language in section 102(7) of the Stafford Act, 42 U.S.C. 5122, to mean that FEMA should use the ADA definition of disability with respect to an individual at 42 U.S.C. 12102(1).
If FEMA did not interpret section 102(7) of the Stafford Act, 42 U.S.C. 5122, to mean that the term “individual with a disability” means an individual with a disability as defined in the ADA at current 42 U.S.C. 12102(1) and instead relied on the ADA cross-reference that is currently listed in the Stafford Act, 42 U.S.C. 12102(2), then FEMA will define “individual with a disability” based on the ADA definition of the term “major life activities” which is illogical. FEMA assumes that Congress will amend the Stafford Act to cross-reference to the correct paragraph of the ADA.
Via information collection 1660-0002, we are adding a documentation requirement to tie the need for the home repair accessibility-related items: ramp, grab bars, and/or paved pathway to the pre-existing disability to meet the household's access and functional need. We are requiring that a medical, health care, or rehabilitation professional certify whether or not this is necessary; as, they have the expertise to make that determination or we will accept prior medical, health care, or rehabilitation professional documentation that supports the need for the accessibility-related items.
FEMA is making changes to Home Repair Assistance to adjudicate four RFI comments,
In § 206.117(b)(2)(i), FEMA states that FEMA may provide financial assistance for the repair of an owner-occupied primary residence if: the eligibility criteria in § 206.113 are met; FEMA determines the dwelling was damaged by the disaster; and the damage is not covered by insurance. This sentence is consistent with the current § 206.117(b)(2)(i), except for FEMA removing the phrase “real property components in” before “an owner-occupied primary residence;” adding “FEMA determines” after “met;” removing “to the component” after “damage” and replacing “component” with “dwelling,” as the Stafford Act does not limit repairs to “components” and replacing “owner's” with “owner-occupied” for consistency as
In § 206.117(b)(2)(ii), FEMA states that FEMA may provide financial assistance for the repair of the disaster damaged dwelling to a safe and sanitary living or functioning condition. This clause is consistent with the current § 206.117(b)(2)(ii), except for FEMA adding “the disaster damaged dwelling to a safe and sanitary living or functioning condition including” after “of.” These additions align with the changes that make it clear that only
In § 206.113(b)(1), FEMA states that FEMA may not provide assistance under subpart D for housing or displacement assistance, to individuals or households who are displaced from other than their pre-disaster primary residence. This is consistent with the current § 206.113(b)(1), except for FEMA adding “or displacement” before “assistance” for clarity, since we added displacement assistance to the ONA regulations in § 206.119(b)(2).
In § 206.113(b)(2), FEMA states that FEMA may not provide assistance under subpart D for temporary housing or displacement assistance, to individuals or households who have adequate rent-free housing accommodations. This is consistent with the current § 206.113(b)(2), except for FEMA adding “temporary” before “housing” and adding “or displacement” before “assistance” for clarity. FEMA may provide assistance to repair an applicant's home, but FEMA will not provide the applicant with rental assistance or direct housing assistance, while the applicant's repairs are made because the applicant has somewhere else they can temporarily live.
In § 206.113(b)(3), FEMA states that FEMA may not provide assistance under subpart D for temporary housing or displacement assistance, to individuals or households who own a secondary or vacation residence within reasonable commuting distance to the disaster area, or who own available rental property that meets their temporary housing needs. This is consistent with the current § 206.113(b)(3), except for FEMA adding “temporary” before “housing” and adding “or displacement” before “assistance” for clarity. See the explanation in the above discussion of § 206.113(b)(2).
In § 206.113(b)(4), FEMA states that FEMA may not provide assistance under subpart D for temporary housing or displacement assistance to individuals or households who evacuated the residence in response to official warnings solely as a precautionary measure and are able to return to and safely occupy the residence immediately after the incident. This is consistent with the current § 206.113(b)(4), except for FEMA adding “temporary” before “housing” adding “or displacement” before “assistance,” see the explanation in the above discussion of § 206.113(b)(2), removing “who” before “are,” and adding “and safely occupy” before “the residence immediately after the incident” for clarity and equity. This is intended to apply to applicants that did not receive damage that impacted habitability and can safely return and live in their home immediately. However, lodging expense reimbursement is available to individuals or households who evacuated the residence in response to official warnings solely as a precautionary measure and did not receive temporary housing or displacement assistance. See § 206.110(d).
In § 206.113(b)(5), FEMA states that FEMA may not provide assistance under subpart D for housing assistance, for improvements or additions to the pre-disaster condition of property, except for the following: (i) improvements or additions required to make repairs that comply with local and State ordinances; (ii) eligible hazard mitigation measures; or (iii) accessibility-related items for individuals with disabilities, consistent with § 206.113(a)(9). This is consistent with the current § 206.113(b)(5), except for FEMA adding “for the following:” after “except” and giving the exceptions in a list format across paragraphs (b)(5)(i)-(iii), for clarity; replacing “those” with “improvements or additions” for clarity; adding “hazard” to “Eligible hazard mitigation measures” for clarity since that is the defined term in § 206.111; adding to “make repairs that” before “comply” for clarity; and adding an exception for accessibility-related items for individuals with disabilities, for consistency with the changes to § 206.113(a)(9).
In § 206.113(b)(9), FEMA states that FEMA may not provide assistance under subpart D for business losses, including farm businesses. This is consistent with the current § 206.113(b)(9), except for FEMA removing “and self-employment” in order to allow the self-employed eligibility for essential tools. Currently, the self-employed are ineligible for IHP grants; so, artists and gig workers cannot apply for ONA personal property assistance for their self-employed personal property assistance items damaged in the disaster. Businesses will continue to be ineligible for business losses under 206.113(b)(9). Therefore, FEMA is allowing a self-employed individual to receive assistance under the ONA portion of the IHP for personal property losses under 206.119(b)(6)(iv) in their individual capacity. For example, under our changes, a gig worker could apply for personal property assistance for disaster damaged essential tools that are required for their livelihood. So, if they are a guitar player, then they could apply for ONA personal property assistance for repairing/replacing the guitar, whichever is needed.
For self-employed individuals, FEMA relies on the individual to self-certify the items required for their job.
In Senate Report 115-283, which accompanied the Fiscal Year (FY) 2019 DHS Appropriations Act (Pub. L. 116-6) included the requirement that FEMA review its reimbursement policy, including in relation to Small Business Loans, for expenses incurred as a result of a major disaster or emergency by self-employed or freelance workers for tool repair or replacement, specialized or protective clothing, or other requirement equipment, for fairness in relation to other reimbursement policies. The Senate Report also requested a cost estimate.
FEMA's Individuals and Households Program Assistance for Occupational Tools FY 2019 Report to Congress (FY 2019 Report) found that FEMA IHP assistance is not a substitute for insurance and cannot compensate for all losses caused by a disaster. The IHP is intended to meet basic needs and supplement disaster recovery efforts. FEMA believed that it was appropriate to continue to direct businesses, including self-employed persons, to SBA so that they can secure low-interest loans for their disaster-related losses. Self-employment business losses are ineligible for FEMA assistance, meaning that FEMA does not record business-
Currently, self-employed individuals are eligible for all FEMA assistance for their personal losses, except for necessary expenses and serious needs related to business losses. Non-self-employed individuals may receive assistance for disaster related costs for occupational tools, such as tool repair or replacement, essential computer, and uniforms, which may include specialized or protective clothing, but these are currently considered business losses for the self-employed, which makes them ineligible. The IFR changes this by removing “self-employment” from the list of conditions of ineligibility.
This IFR removes the requirement that applicants apply and receive an SBA loan denial before FEMA considers them for personal property assistance. FEMA assists self-employed individuals, solely related to their personal essential tools, without ever requiring them to seek loan assistance from SBA for these losses. In order to implement this change, FEMA is removing “self-employment” as a condition of ineligibility for business losses.
FEMA is making this policy change as there is stakeholder interest in such. Not only did FEMA receive two RFI comments on this matter, but obviously there is Congressional interest, since Senate Report 115-283 asked FEMA to review its policy.
In § 206.113(b)(10), FEMA states that FEMA may not provide assistance under subpart D for any items not otherwise authorized by §§ 206.117 and 206.119. This is consistent with current § 206.113(b)(10), except for FEMA replacing “this section” with “§§ 206.117 and 206.119,” for clarity since § 206.113 does not actually authorize any items.
FEMA revises § 206.114's heading of “Criteria for continued assistance” to “Criteria for continued or additional assistance” for clarity since it does not only cover “Criteria for continued assistance.”
In § 206.114(a), FEMA adds a new paragraph heading of “General” for consistency since the rest of the paragraphs at this level have paragraph headings and to comply with the
In the second sentence of § 206.114(a), FEMA states that FEMA may provide initial and continued temporary housing assistance, financial or direct, upon request during the period of assistance, based on need, and generally only when adequate, alternate housing is not available or when the permanent housing plan has not been fulfilled through no fault of the applicant. This sentence is consistent with the current second sentence of § 206.114(a), except for FEMA providing clarifying language by adding “initial and” before “continued” for clarity; adding “temporary” between “continued housing” for consistency throughout the section; adding “financial or direct, upon request” before “during,” to clarify that “continued temporary housing assistance” covers both financial or direct assistance and to clarify that applicants must request CTHA; and removing the clause “but not to exceed the maximum amount of assistance for the program.” FEMA deletes the clause, as section 1212 of the DRRA authorized changes to the provision of IHP Assistance by removing the financial assistance maximum award limits for temporary housing assistance. These changes were retroactive to disasters declared on or after August 1, 2017.
“Upon request” refers to the required income and housing costs documentation applicants in need of continued temporary housing assistance will have to complete to request additional assistance. Applicants may complete the IHP Application for Continued Temporary Housing Assistance, FEMA Form FF-104-FY-21-115, and the Supplemental Application for Continued Temporary Housing Assistance, FEMA Form FF-XXXXX, to request additional assistance. FEMA uses the information collected on the Application for Continued Temporary Housing Assistance to verify that an applicant continues to have a disaster-caused need for CTHA and to determine how much rental assistance the applicant may be eligible to receive.
For an applicant that is a homeowner and if the applicant's FEMA verified real property loss exceeds the amount of initial rental assistance awarded, FEMA will automatically mail the Application for Continued Temporary Housing Assistance after the initial rental assistance award. If the recorded FEMA-verified real property loss does not exceed the amount of initial rental assistance awarded, the applicant must call FEMA's Helpline to request an Application for Continued Temporary Housing Assistance. For an applicant that is a renter, the applicant must call FEMA's helpline to request an Application for Continued Temporary Housing Assistance. In § 206.114(b), FEMA replaces the paragraph heading of “Additional criteria for continued assistance” with “Rental assistance” for clarity.
In § 206.114(b), FEMA adds a new paragraph that states that FEMA may provide initial financial assistance for rent, also known as initial rental assistance, as described in § 206.117(b)(1)(i), to displaced eligible applicants to rent alternate housing accommodations for an initial time period established by FEMA.
FEMA reorganizes our current regulations at § 206.114(b)(1) through (5), as FEMA found that having the eligibility, non-eligibility, and criteria for continued assistance categories separate from the specific types of assistance made for very difficult reading. Therefore, FEMA instead of conflating the regulations into one paragraph, separates them into two paragraphs: “Rental assistance” and “Direct housing assistance.” There are no substantive changes in the reorganization, as we simply introduce initial and continued assistance for both rental and direct assistance in a clearer way.
In § 206.114(b)(1), we state that FEMA may periodically recertify all displaced applicants who received initial rental assistance and request continued rental assistance. All displaced applicants requesting continued rental assistance must take the following actions at certain points throughout the recertification process: submit rent receipts to show that they have exhausted or will exhaust previously provided funds; provide documentation demonstrating they lack the financial ability to pay their post-disaster housing costs and have a continued need for rental assistance; establish a realistic permanent housing plan; and provide documentation showing that they are making efforts to obtain permanent housing.
In the first new sentence of § 206.114(b)(1), FEMA clarifies that in order for displaced applicants to receive CTHA they must have been awarded initial rental assistance.
In the second sentence of § 206.114(b)(1), FEMA states that all displaced applicants requesting continued rental assistance must take the following actions at certain points throughout the recertification process. This sentence is not consistent with the current second sentence of
In order to help FEMA provide appropriate resources and assistance to applicants throughout their housing recovery process, applicants will select from a list of permanent housing plans on the Application for Continued Housing Assistance form based on their pre-disaster housing status.
The type of documentation that will be required to establish a permanent housing plan will be variable and flexible depending on an applicant's specific circumstances. For example, the following table provides a non-exhaustive list of the varying types of documentation that might be required based on the applicant's plan to achieve a permanent housing solution and pre-disaster status.
As post-disaster recovery can be a challenge for all applicants, FEMA will engage more closely to assist applicants in achieving a recovery outcome by the end of the period of assistance. FEMA will work with applicants through all
In § 206.114(b)(1)(i), FEMA states that displaced applicants requesting continued rental assistance must submit rent receipts to show exhaustion of previously provided funds. This sentence is generally consistent with the current first sentence of § 206.114(b)(2), except for FEMA adding “displaced” before “applicants” for consistency; and replacing “they have exhausted the FEMA rent funds and” with less limiting language “that they have exhausted or will exhaust previously provided funds.” While this is less limiting, it is still the Program's intent that the applicant must exhaust their funds. However, funds may be awarded prior to exhaustion to prevent a gap in assistance.
In § 206.114(b)(1)(ii), FEMA states that displaced applicants requesting continued rental assistance must provide documentation demonstrating they lack the financial ability to pay their post-disaster housing costs and have a continued need for rental
In § 206.114(b)(1)(iii), FEMA states that displaced applicants requesting continued rental assistance must establish a realistic permanent housing plan, which is consistent with current § 206.114(b)(1) except for the timing of the realistic permanent housing plan. Currently, the realistic permanent housing plan is required no later than the first certification for continued assistance. In this IFR, FEMA no longer requires the realistic housing plan at the first certification for continued assistance.
In § 206.114(b)(1)(iv), FEMA states that displaced applicants requesting continued rental assistance must provide documentation showing that they are making efforts to obtain permanent housing, which is consistent with current § 206.114(b)(1).
In the first sentence of § 206.114(b)(2), FEMA states that FEMA expects that pre-disaster renters will use their initial rental assistance to obtain permanent housing. This is consistent with the current first sentence of § 206.114(b)(3), except for FEMA removing “generally” before “expects” for clarity. FEMA does not want to suggest that in some cases applicants should not seek to obtain permanent housing.
In the second sentence of § 206.114(b)(2), we state that FEMA may provide continued rental assistance to pre-disaster renters with a continuing disaster-related housing need. This is consistent with the current second sentence of 206.114(b)(3), except for FEMA replacing “we” with “FEMA” for clarity; replacing “may certify them during the period of assistance, for” with “may provide” before “continued” for clarity; replacing “rent” with “rental” before assistance; and replacing “when adequate, alternate housing is not available, or when they have not realized a permanent housing plan through no fault of their own” with “to pre-disaster renters with a continuing disaster-related housing need” for clarity. FEMA's language is closer to the Stafford Act language at 42 U.S.C. 5174 which is our authorizing statute.
Currently, § 206.114 discusses rental assistance and direct housing assistance in the same paragraph. But, in this IFR we separate rental assistance from direct housing assistance. There will be repetitive language in 206.114(b) and (c), in order to clarify to the public what the requirements are for rental assistance and direct housing assistance.
In § 206.114(c), FEMA adds a new paragraph heading “Direct housing assistance,” for consistency since the rest of the paragraphs at this level have paragraph headings and to comply with the
In § 206.114(c), FEMA states that FEMA may provide direct housing assistance as described in § 206.117(b)(1)(ii), to displaced eligible applicants who are unable to make use of financial assistance to rent adequate alternate housing. FEMA may periodically recertify all displaced applicants receiving direct housing assistance for continued direct housing assistance. All displaced applicants who need continued direct housing assistance must take the following actions at certain points throughout the recertification process: (1) establish a realistic permanent housing plan; and (2) provide documentation showing that they are making efforts to obtain permanent housing throughout the recertification process. The clause in § 206.114(c)(1) is generally consistent with the current first sentence of § 206.114(b)(1), except for FEMA removing the phrase “no later than the first certification for continued assistance.” The clause in § 206.114(c)(2) is generally consistent with the current second sentence of § 206.114(b)(1), except for FEMA adding “throughout the recertification process” after “permanent housing.”
In § 206.114(d), FEMA adds a new paragraph heading “Other assistance,” for consistency since the rest of the paragraphs at this level have paragraph headings and to comply with the
In § 206.114(d) through (1), FEMA adds a new paragraph to state that FEMA may provide repairs or housing replacement assistance, as described in § 206.117(b)(2) and § 206.117(b)(3), lodging expense reimbursement, as described in § 206.117(b)(1)(i), or other needs assistance, as described in § 206.119, to eligible applicants. If FEMA requires more information to process an applicant's initial request for assistance, it may request additional information. This new language is intentionally broad in case FEMA finds an alternate way to contact applicants to request additional information in the future (
In § 206.114(d)(2), FEMA states that after the initial award of assistance, applicants requesting additional assistance for repairs, housing replacement, lodging expense reimbursement, personal property, transportation, child care, medical, dental, funeral, moving and storage, or other necessary expenses and serious needs may submit an appeal as outlined in § 206.115 and will be required to submit information and/or verifiable documentation established via guidance identifying the additional need. In § 206.114(d)(2), FEMA combines current § 206.114(b)(5) and § 206.114(b)(6) into one sentence, so as not to have to repeat the following language twice as it is used in both current § 206.114(b)(5) and current § 206.114(b)(6): “individuals or households requesting additional” and “will be required to submit information and/or documentation identifying the continuing need.” Section 206.114(d)(2) is consistent with combining current § 206.114(b)(5) and § 206.114(b)(6), except for FEMA adding “After the initial award of assistance” to the beginning of § 206.114(d)(2) for clarity; replacing “Individual or households” with “Applicants for consistency;” adding “repairs, housing replacement, lodging expense reimbursement” before “personal” for clarity and consistency; adding “child care” before “medical;” adding “may submit an appeal as outlined in § 206.115 and” before “will be” for clarity; adding “verifiable” before “documentation;” adding “established via guidance” before “identifying;” and replacing “continuing” with “additional” at the end of the sentence for clarity purposes. “Continuing need” is not appropriate in the sentence as there is not a “continuing need” for repair assistance, rather an “additional” need of repair assistance is more appropriate. FEMA adds child care; as section 1108 of the Sandy Recovery Improvement Act of
FEMA adds “may submit an appeal as outlined in § 206.115” for clarity; however, this is the current process so it will not change anything for applicants. Page 66, Chapter 3: II.C.
Upon subsequent requests for CTHA, applicants will only need to submit supporting documentation for income and housing costs if the household's income or housing costs have changed. See 44 CFR 206.114(b).
In the first sentence of § 206.115(a), FEMA states that under the provisions of the Stafford Act, 42 U.S.C. 5189a, applicants for assistance under subpart D may appeal any determination of eligibility for assistance made under subpart D. This sentence is consistent with the current first sentence of § 206.115(a), except for FEMA removing “section 423 of” and inserting “42 U.S.C. 5189a,” before applicants. FEMA makes these edits for public ease of reference, as a United States Code cite is more accessible to the public and referencing the section of the Stafford Act just increases the length of the regulation.
In the first sentence of § 206.115(b), FEMA states that appeals must include a written explanation or verifiable documentation for the appeal and meet the requirements of § 206.117, as applicable. This sentence is consistent with the current first two words of the first sentence of § 206.115(b). In the first sentence of § 206.115(b), FEMA replaces the clause “be in writing and explain the reason(s) for the appeal” with “include a written explanation or verifiable documentation for the appeal” to reduce the complexity, to streamline the process, to reduce FEMA processing time, and to decrease the burden on applicants to successfully appeal a determination. This language allows applicants to continue to submit a written letter of explanation to enhance their appeal, if they choose, and establishes the requirement to submit either a written appeal or verifiable documentation—thus reducing the need for additional letters requesting this information from
In the second sentence of § 206.115(b), FEMA states “See §§ 206.117(b)(2)(vi), 206.117(b)(3)(iv), and 206.117(b)(4)(iii).” FEMA makes this addition to the current regulations for clarity; as, the cross references to the appeals procedures in § 206.115 already exist in FEMA's current regulations at §§ 206.117(b)(2)(vii), 206.117(b)(3)(iv), and 206.117(b)(4)(iii).
In the third sentence of § 206.115(b), FEMA states that if someone other than the applicant files the appeal, then the applicant must also submit a signed statement giving that person authority to represent them. This sentence is consistent with the current third sentence in § 206.115(b), except for FEMA removing “his, her, or” before “them” as “his or her” is redundant.
In the fourth sentence of § 206.115(b), FEMA states that if a written explanation is submitted, it must be signed by the applicant or a person the applicant designates to represent them. This sentence is consistent with the intent of the current second sentence in § 206.115(b). This sentence is trying to ensure that the public understands that if a written explanation is submitted, it has to be signed either by the applicant or the person the applicant chooses to represent them. If the applicant submits verifiable documentation no signature is necessary.
In § 206.115(c), FEMA states that applicants must appeal to FEMA for decisions made under subpart D, unless FEMA has made a grant to the State to provide assistance to individuals and households under § 206.120(a), State administration of other needs assistance; then the applicant must appeal to the State. This is consistent with the current § 206.115(c), except for FEMA replacing “the Regional Administrator or his/her designee” with “FEMA” to ensure continued consistency in processing across disasters at the national level. This change also aligns regulations with current practices that already streamline the appeals process to eliminate delays.
In the second sentence of § 206.115(d), FEMA states that if someone other than the applicant is submitting the request, then the applicant must also submit a signed statement giving that person authority to represent them. This is consistent with the current second sentence of § 206.115(d), except for FEMA placing “him or her” with “them” for consistency with the edits suggested in the third sentence of § 206.115(b).
FEMA removes current § 206.115(e), which states that the appropriate FEMA or State program official will notify the applicant in writing of the receipt of the appeal. FEMA removes current § 206.115(e), to codify the current practice that the applicant is not notified in writing of receipt of the appeal.
In the first sentence of § 206.115(e), FEMA states that FEMA or the appropriate State official will review the original decision after receiving the appeal. This sentence is consistent with the current first sentence § 206.115(f), except for FEMA replacing “the Regional Administrator or his/her designee” with “FEMA” to ensure continued consistency in processing across disasters at the national level and adding “the” before “appropriate” for grammar purposes.
In the second sentence of § 206.115(e), FEMA states that FEMA or the State, as appropriate, will give the appellant a written notice of the disposition of the appeal and a reason for the determination within 90 days of receiving the appeal. This sentence is consistent with the current second sentence of § 206.115(f), except for FEMA removing “the” before “receiving” for grammar purposes and adding “and a reason for the determination” for clarity and transparency; as, it is currently FEMA's practice to provide a reason in the written notice of the disposition of the appeal.
In the third sentence of § 206.115(e), FEMA states that the decision of the FEMA or State appellate authority is final. This sentence is consistent with the current third sentence of § 206.115(f), except for FEMA adding a clarifying phrase “FEMA or State” before “appellate.”
In § 206.117(a), FEMA removes the definition “Caused by the disaster” since FEMA is paying for pre-existing conditions if the component itself was damaged by the disaster, adding the term “Multifamily Rental Housing,” and revising the definition of “Real Property Component” or “Component,” as follows.
However, FEMA currently has a definition of “Multifamily Rental Housing” in the IAPPG 1.1 at Chapter 3: V.E.
Prior to the definition of “Multifamily Rental Housing” in the 2019 version of the IAPPG, FEMA followed the HUD regulations at 12 CFR 1282.1(b), which states multifamily housing means a residence consisting of more than four dwelling units. However, during DR-4277-LA, the available housing market of multifamily buildings proved insufficient to meet the demand for temporary housing in the affected area. FEMA received hundreds of calls and emails from property owners interested in MLR. Despite a growing need for temporary housing and interest in MLR, many properties were immediately excluded based solely on the fact that the buildings had four or fewer units. Based on this experience, FEMA
When provided the authority to repair or make improvements to existing multifamily housing units as a form of direct temporary housing assistance via SRIA, FEMA initially defined “multifamily housing” as “a property that consists of not less than five dwelling units in one site, each such unit providing complete living facilities including provisions for cooking, eating, and sanitation within the unit.”
FEMA specifically seeks public comment on whether its definition is appropriate, or should be changed from “three or more dwelling units contained within one building” to “two or more dwelling units contained within one building.”
FEMA revises subparagraph heading (i) of § 206.117(b)(1) from “Financial” to “Rental” assistance for clarity. In the first sentence of § 206.117(b)(1)(i), FEMA states that eligible displaced applicants may receive rental assistance to rent alternate housing resources. This sentence is consistent with the current first sentence of § 206.117(b)(1)(i), except for FEMA replacing “individuals and households” with “displaced applicants” for clarity; replacing “financial” with “rental” for clarity; and removing “existing rental units, manufactured housing, recreational vehicles, or other readily fabricated dwellings” for clarity. There is no reason to list the definition of “Alternate housing resources” in the sentence after using the defined term. Finally, in the third sentence of § 206.117(b)(1)(i), FEMA states that this may include lodging expense reimbursement for reasonable short-term lodging expenses for individuals or households who have not received displacement assistance (See § 206.119(b)(2)) in the immediate aftermath of a disaster. This is consistent with the third sentence of current § 206.117(b)(1)(i), except for FEMA replacing “includes” with “may include,” adding “lodging expense” before “reimbursement,” replacing “that” with “for,” and adding “who have not received displacement assistance (See § 206.119(b)(2))” after “households,” and removing “incur” for clarity. FEMA adds the cross-reference to the displacement assistance regulations for ease of review.
In § 206.117(b)(1)(i)(A), FEMA states that FEMA will include all members of a pre-disaster household in a single registration and will provide assistance for one temporary housing residence, unless FEMA determines that the size or nature of the household requires that we provide assistance for more than one residence. This sentence is consistent with the current § 206.117(b)(1)(i)(A), except for FEMA replacing “the Regional Administrator or his/her designee” with “FEMA” for consistency.
In the first sentence of § 206.117(b)(1)(i)(B), FEMA states that FEMA will base the amount of assistance on the current fair market rent for existing rental units. This sentence is consistent with the current first sentence of § 206.117(b)(1)(i)(B), except for FEMA replacing “rental” with “amount of” for clarity; removing “Department of Housing and Urban Development's,” as it is duplicative; and replacing “rates” with “rent” for clarity. FEMA replaces “fair market rates” with “fair market rent” as the defined term at § 206.111 is “fair market rent.” Additionally, the definition of “fair market rent” states that the fair market rental rates applied are those identified by the Department of Housing and Urban Development as being adequate for existing rental housing in a particular area; since the term provides that the rates are identified by HUD, FEMA does not need to repeat that in the first sentence of § 206.117(b)(1)(i)(B).
In the second sentence of § 206.117(b)(1)(i)(B), FEMA states that FEMA will further base the applicable rate on the location of the rental unit and the number of bedrooms the household requires, as determined by FEMA. This sentence is consistent with the current second sentence of § 206.117(b)(1)(i)(B), except for FEMA removing the phrase “household's bedroom requirement and the” from the beginning of the sentence and replacing it with the clarifying phrase “and the number of bedrooms the households requires, as determined by FEMA” to the end of the sentence. This will codify existing policy and practice that FEMA determines the number of bedrooms a household requires, for clarity.
In § 206.117(b)(1)(i)(C), FEMA states that rental assistance may include the payment of the cost of utilities, excluding telephone, cable, television, and internet service. This sentence is not consistent with current § 206.117(b)(1)(i)(C), as the current regulations state that all utility costs and utility security deposits are the responsibility of the occupant except where the utility does not meter utility services separately and utility services are part of the rental charge. Section 689d of PKEMRA
In § 206.117(b)(1)(i)(D), FEMA states that rental assistance may include the payment of the cost of security deposits, not to exceed an amount equal to the fair market rent for one month, as determined under paragraph (b)(1)(i)(B) of § 206.117. This sentence is not consistent with the current two sentences of § 206.117(b)(1)(i)(D), as the current regulations state that the occupant is responsible for all housing security deposits and that in extraordinary circumstances, the Regional Administrator or his/her designee may authorize the payment of security deposits; however, the owner or occupant must reimburse the full
In § 206.117(b)(1)(i)(E), FEMA states that applicants that receive displacement assistance under § 206.119(b)(2) must request rental assistance if their disaster-caused temporary housing needs continue once displacement assistance is exhausted. This new paragraph is for public transparency. With the new displacement assistance, if an applicant wants to receive rental assistance after receiving displacement assistance, they now have to contact FEMA to let FEMA know that they need continued temporary housing assistance in the form of rental assistance. If FEMA did not propose § 206.117(b)(1)(i)(E), the only notification the public would have of this would be from the second sentence of § 206.114(a), which says that FEMA may provide initial and CTHA, financial or direct, upon request during the period assistance.
In § 206.117(b)(1)(ii)(A), FEMA states that FEMA may provide direct assistance in the form of purchased or leased temporary housing units directly to displaced applicants who lack available housing resources and are unable to make use of the assistance provided under paragraph (b)(1)(i) of § 206.117. This sentence is consistent with the current § 206.117(b)(1)(ii)(A), except for FEMA replacing “individuals or households” with “displaced applicants” and replacing “would be” with “are” for clarity.
In § 206.117(b)(1)(ii)(B), FEMA states that FEMA will include all members of a pre-disaster household in a single application and will provide assistance for one temporary housing unit, unless FEMA determines that the size or nature of the household requires that we provide assistance for more than one temporary housing unit. This is consistent with current § 206.117(b)(1)(ii)(B), except for FEMA replacing “residence” with “unit;” replacing “the Regional Administrator or his/her designee” with “FEMA;” and replacing “residence” with “temporary housing unit,” for clarity and consistency.
In § 206.117(b)(1)(ii)(C), FEMA states that any site upon which a FEMA-provided temporary housing unit is placed must comply with applicable State and local codes and ordinances, as well as 44 CFR part 9, Floodplain Management and Protection of Wetlands, and all other applicable environmental and historic preservation laws, regulations, Executive orders, and agency policy. This is consistent with current § 206.117(b)(1)(ii)(C), except for FEMA adding “temporary” before “housing” for consistency and replacing “Orders” with “orders” for formatting purposes.
In § 206.117(b)(1)(ii)(E), FEMA states that FEMA-provided or funded temporary housing units may be placed in the locations, listed in subparagraphs
In § 206.117(b)(1)(ii)(E)
In § 206.117(b)(1)(ii)(E)
In § 206.117(b)(1)(ii)(E)
In § 206.117(b)(1)(ii)(E)
In § 206.117(b)(1)(ii)(F), FEMA states that if FEMA determines it would be a cost-effective alternative to other temporary housing options, FEMA may enter into lease agreements with owners of multifamily rental housing properties to house displaced applicants eligible for assistance under subpart D.
In § 206.117(b)(1)(ii)(F)
In § 206.117(b)(1)(ii)(F)
FEMA is adding these subparagraphs since section 1103 of SRIA
However, FEMA currently has guidance regarding MLR that is consistent with § 206.117(b)(1)(ii)(F). The IAPPG 1.1 at Chapter 3: V.E.
Additionally, FEMA currently has guidance regarding MLR that is consistent with § 206.117(b)(1)(ii)(F)
FEMA also currently has guidance regarding MLR that is consistent with § 206.117(b)(1)(ii)(F)
In the first sentence of § 206.117(b)(1)(ii)(G), FEMA states that after the end of the 18-month period of assistance, FEMA may begin to charge up to the fair market rent for each temporary housing unit provided. This sentence is consistent with the current first sentence of § 206.117(b)(1)(ii)(F), except for FEMA removing “rate” from “fair market rent rate,” since the defined term at § 206.111 is “fair market rent” not “fair market rent rate.”
The second and third sentences of § 206.117(b)(1)(ii)(G) are consistent with the second and third sentences of current § 206.117(b)(1)(ii)(F), except for the change to the paragraph structure.
Section 206.117(b)(1)(ii)(H) is consistent with current § 206.117(b)(1)(ii)(G), except for the change to the paragraph structure.
Section 206.117(b)(1)(ii)(H)
The first sentence of § 206.117(b)(1)(ii)(I) is consistent with current § 206.117(b)(1)(ii)(H), except for the changes to the paragraph structure.
In the second sentence of § 206.117(b)(1)(ii)(I), FEMA states that this notice will specify the reasons for termination of assistance and occupancy, the date of termination, the procedure for appealing the determination, and the occupant's liability for such additional charges as FEMA deems appropriate after the termination date, including fair market rent for the unit. This sentence is consistent with the current second sentence of § 206.117(b)(1)(ii)(H), except for FEMA replacing “the Regional Administrator or his/her designee” with “FEMA” to ensure continued consistency in processing across disasters at the national level.
Section 206.117(b)(1)(ii)(J) through (b)(2) is consistent with current § 206.117(b)(1)(ii)(I) through (b)(2), except for the changes to the paragraph structure.
In § 206.117(b)(2)(i), FEMA states that FEMA may provide financial assistance for the repair of an owner-occupied primary residence if: the eligibility criteria in § 206.113 are met; FEMA determines the dwelling was damaged by the disaster; and the damage is not covered by insurance. This sentence is consistent with the current § 206.117(b)(2)(i), except for FEMA removing the phrase “real property components in” before “an owner-occupied primary residence;” adding “FEMA determines” after “met;” removing “to the component” after “damage” and replacing “component” with “dwelling,” as the Stafford Act does not limit repairs to “components” and replacing “owner's” with “owner-occupied” for consistency as
In § 206.117(b)(2)(ii), FEMA states that FEMA may provide financial assistance for the repair of the disaster damaged dwelling to a safe and sanitary living or functioning condition. This clause is consistent with the current § 206.117(b)(2)(ii), except for FEMA adding “the disaster damaged dwelling to a safe and sanitary living or functioning condition including” after “of.” These additions align with the changes that make it clear that only disaster damaged dwellings (regardless of their pre-disaster condition) may receive repair assistance, as FEMA may only pay to restore disaster damage to a safe and sanitary living or functioning condition. If the dwelling was not touched by the disaster, it will not be eligible for repair assistance.
In response to public comments, FEMA is also changing the regulatory text at § 206.117(b)(2) and a new § 206.113(a)(9) as a part of this IFR. The changes will allow FEMA flexibility to provide financial assistance to applicants for the installation or
In new § 206.113(a)(9), FEMA states that FEMA may provide assistance with respect to home repair for accessibility-related items, if an applicant meets the following conditions: (i) the applicant is either an individual with a disability as defined in 42 U.S.C. 5122 whose disability existed prior to the disaster and whose primary residence was damaged by the disaster, or an individual with a disability as defined in 42 U.S.C. 5122 whose disability was caused by the disaster and whose primary residence was damaged by the disaster; (ii) the real property component is necessary to meet the accessibility-related need of the household; and (iii) the real property component is not covered by insurance or any other source.
Via information collection 1660-0002, we are adding a documentation requirement to tie the need for the home repair accessibility-related items: ramp, grab bars, and/or paved pathway to the pre-existing disability to meet the household's access and functional need. We are requiring that a medical, health care, or rehabilitation professional certify whether or not this is necessary; as, they have the expertise to make that determination or, we will accept prior medical, health care, or rehabilitation professional documentation that supports the need for the accessibility-related items. FEMA requests comment on whether this is the appropriate level of documentation needed to confirm the necessity of accessibility-related items or if FEMA should pursue less burdensome documentation requirements.
FEMA makes the below changes to Home Repair Assistance to adjudicate four RFI comments,
In § 206.117(b)(2)(ii)(H), FEMA states that FEMA may provide financial assistance for eligible hazard mitigation measures. This is consistent with current § 206.117(b)(2)(ii)(H), except for FEMA removing the phrase “items or services determined to be” for clarity, as FEMA never defined what “items or services” meant in context of mitigation measures and the removing of the phrase “that reduce the likelihood of future damage to the residence, utilities, or infrastructure” as that is now part of the defined term “Eligible hazard mitigation measures.”
In the first sentence of § 206.117(b)(2)(iii), FEMA states that FEMA financial assistance for the repair of disaster damage will be limited to repairs of quality necessary for a safe and sanitary living or functioning condition. This is not consistent with current § 206.117(b)(2)(iii), as FEMA has changed its position regarding pre-existing conditions. Rather, FEMA now repairs the home to a safe and sanitary living or functioning condition to align with the “functioning condition” provision listed in 42 U.S.C. 5174 (c)(2)(A)(i) of the Stafford Act.
In the second sentence of § 206.117(b)(2)(iii), FEMA states that in some instances, when the extent of the damage is unclear, FEMA may provide assistance for the average cost of a licensed technician's professional assessment. The second sentence of § 206.117(b)(2)(iii) is new regulatory text which indicates that FEMA may pay for the average cost of a licensed technician's professional assessment in some situations when the extent of the damage is unclear. While that situation has typically presented itself when FEMA is considering providing assistance for damages to more complex items that affect the habitability of the home, like furnaces, wells, septic systems, roads, bridges, or retaining walls, there may be other situations in which we will need that kind of assessment. So, FEMA has left § 206.117(b)(2)(iii) general to allow for flexibility.
Currently, under page 86 of the IAPPG 1.1, FEMA lists that for wells, furnaces, and septic systems, FEMA may provide assistance or reimbursement for the cost of a licensed technician's professional assessment associated with the repair or replacement of those components. Additionally, when verifiable receipts or estimates are submitted on appeal, FEMA may pay up to the actual cost of the receipt or estimate for wells, furnaces, and septic systems. Thus, the new regulatory text for the second sentence of § 206.117(b)(2)(iii), will codify FEMA's policy and practice, in place since 2000, of providing assistance for the average cost of a licensed technician's professional assessment.
In the third sentence of § 206.117(b)(2)(iii), FEMA states that FEMA may provide for the replacement of a component if repair is not feasible. This is consistent with the fourth sentence of current § 206.117(b)(2)(iii), except for FEMA adding an “a” after “of” for clarity and replacing “components” with “component” for grammar purposes.
FEMA removes the current § 206.117(b)(2)(iv) that states that components that were functional immediately before the declared event may be eligible for repair assistance if the damage to the component was caused by the disaster and the component is no longer functional. The reason for the removal is FEMA's policy change. In this IFR, FEMA will provide assistance to repair or replace a disaster-damaged component, room, or area as long as the dwelling incurred disaster damage, including damage that was exacerbated by the disaster and requires repair or replacement to make the home habitable. If the dwelling was not touched by the disaster, it will not be eligible for repair assistance.
In § 206.117(b)(2)(iv), FEMA states that eligible individuals or households may receive up to the maximum amount of assistance (See § 206.110(b)) to repair damage to their primary residence irrespective of other financial resources, except insurance proceeds. This sentence is consistent with the current § 206.117(b)(2)(v), except for FEMA removing the italicization of “See” to correct a formatting error, removing “of this part” as to conform with the
Section 206.117(b)(2)(v) is consistent with current § 206.117(b)(2)(vi), except for the change to the paragraph structure.
In the first sentence of § 206.117(b)(2)(vi), FEMA states that if the applicant disputes a determination made by FEMA regarding eligibility for repair assistance, the applicant may appeal that determination pursuant to the procedures in § 206.115. This is consistent with current § 206.117(b)(2)(vii), except for changing the paragraph structure and removing of “of this part.” The removal of “of this part” is to conform with the
In the second sentence of § 206.117(b)(2)(vi), FEMA states that in addition to the requirements in § 206.115, the applicant must provide proof that the component meets the requirements of paragraph (b)(2)(i) of § 206.117. This sentence is consistent with the second sentence of current § 206.117(b)(2)(vii), except for FEMA removing the clause “including that the component was functional before the declared event and proof that the declared event caused the component to stop functioning.” The reason for the clause's removal is that FEMA is making a policy change that only disaster damaged components (regardless of their pre-disaster condition) may receive repair assistance, as FEMA may only pay to restore disaster damage to a safe and sanitary living or functioning condition.
The third sentence of § 206.117(b)(2)(vi) is consistent with current § 206.117(b)(2)(vii), except for the change to the paragraph structure.
In § 206.117(b)(3)(i), FEMA states that FEMA may provide financial assistance for the replacement of an owner-occupied primary residence if: the eligibility criteria in § 206.113 are met; the residence was destroyed by the disaster; and the damage to the residence is not covered by insurance. This sentence is consistent with current § 206.117(b)(3)(i), except for FEMA replacing “owner's” with “owner-occupied” before “primary residence;” removing “of this part” from current § 206.117(b)(3)(i)(A) for consistency; removing the current § 206.117(b)(3)(i)(B), which states that the residence was functional immediately before the disaster; removing the following clause from the current § 206.117(b)(3)(i)(C) “and the damage was caused;” removing the current § 206.117(b)(3)(i)(E), which states that repair is not feasible, will not ensure the safety or health of the occupant, or will not make the residence functional; and removing the current § 206.117(b)(3)(i)(F), which states that replacement is necessary to ensure the safety or health of the occupant. These additions align with the policy changes that the residence does not have to be functional immediately before the disaster and that all of the damage to the residence need not have been caused by the disaster since FEMA is paying for pre-existing damage.
In the first sentence of § 206.117(b)(3)(ii), FEMA replaces the first sentence with the second sentence of current § 206.117(b)(3)(ii), except for FEMA removing the italicization of “See” to correct a formatting error and removing “of this part” for consistency. FEMA is removing the first sentence of current § 206.117(b)(3)(ii), which states that all replacement assistance awards must be approved by the Regional Administrator or his/her designee to ensure continued consistency in processing across disasters at the national level.
In § 206.117(b)(3)(iii), FEMA states that housing replacement assistance will be based on the average replacement cost established by FEMA for the type of residence destroyed, or the statutory maximum (See § 206.110(b)), whichever is less. This sentence is consistent with current § 206.117(b)(3)(iii), except for FEMA replacing “verified disaster related level of damage to the dwelling” with “average replacement cost established by FEMA for the type of residence destroyed” and removing “of this part” for consistency. FEMA's clarifying revisions are to help the public understand that since FEMA has already said that the residence must be destroyed or cannot be repaired, that FEMA will pay replacement assistance based on the average replacement cost established by FEMA for the type of residence destroyed.
In the first sentence of § 206.117(b)(3)(iv), FEMA states that if the applicant disputes a determination made by FEMA regarding eligibility for replacement assistance, the applicant may appeal that determination pursuant to the procedures in § 206.115. This sentence is consistent with the current first sentence of § 206.117(b)(3)(iv), except for FEMA removing “of this part” to conform with the
In the second sentence of § 206.117(b)(3)(iv), FEMA states that in addition to the requirements in § 206.115, the applicant must provide proof that repair is not feasible, or will not ensure the safety or health of the occupant. This sentence is consistent with the current second sentence of § 206.117(b)(3)(iv), except for FEMA removing the clause “or make the residence functional” based on the policy changes that FEMA has previously discussed in this IFR that the residence no longer has to be functional pre-disaster.
In § 206.117(b)(4)(i)(A), FEMA states that FEMA may provide financial or direct assistance to applicants for the purpose of constructing permanent and semi-permanent housing if the eligibility criteria in § 206.113 are met. This is consistent with current § 206.117(b)(4)(i)(A), except for FEMA removing “of this part” to conform with the
In § 206.117(b)(4)(i)(B), FEMA deletes the current § 206.117(b)(4)(i)(B), which states that the residence was functional immediately before the declared event, based upon the policy changes that the residence no longer has to be functioning immediately before the declared event.
Section 206.117(b)(4)(i)(B) through (D) is consistent with current § 206.117(b)(4)(i)(C) through (E), except for changing the paragraph structure.
In § 206.117(b)(4)(i)(E), FEMA states that FEMA may provide financial or direct assistance to applicants to construct permanent and semi-permanent housing if the residence is in a location where alternate housing resources are not available and the types of financial or direct temporary housing assistance described in paragraph § 206.117(b)(1), (2), and (3) are unavailable, infeasible, or not cost-effective. This is consistent with current § 206.117(b)(4)(i)(F), except for FEMA removing “located” as it is repetitive and replacing the phrase “an insular area outside the continental United States or in another” with “a” before “location” as a simplifying edit for clarity. There is no reason to include the phrase, as the point of the sentence is that the residence is in a location where no alternative housing resources are available.
In the first sentence of § 206.117(b)(4)(iii), FEMA states that if the applicant disputes a determination made by FEMA regarding eligibility for construction assistance, the applicant may appeal that determination pursuant to the procedures in § 206.115. This is consistent with the first sentence in current § 206.117(b)(4)(iii), except for FEMA removing “of this part” to conform with the
In the second sentence of § 206.117(b)(4)(iii), FEMA states that in addition to the requirements in § 206.115, the applicant must provide proof that the property is in a location where alternative housing resources are
In § 206.118(a) through (1), FEMA states that FEMA may sell temporary housing units purchased under § 206.117(b)(1)(ii), Temporary housing, direct assistance, as follows: sale to an occupant. This is consistent with the current § 206.118(a) through (1), except for FEMA adding “temporary” before “housing units” for clarity and replacing “applicant” with “occupant” for clarity in reference to those who attempt to purchase the temporary housing unit they occupy during their period of FEMA individual assistance.
In § 206.118(a)(1)(i), FEMA states that FEMA may sell a temporary housing unit to the occupant, if they lack permanent housing and have a site that complies with local codes and ordinances and 44 CFR part 9. This is consistent with the current § 206.118(a)(1)(i), except for FEMA replacing “sale” with the clause “FEMA may sell a temporary housing unit;” replacing “individual or household” with “occupant;” removing “occupying the unit;” replacing “the occupant” with “they;” replacing “lacks” with “lack” for grammar purposes; replacing the “comma” after “permanent housing” with “and;” and replacing “has” with “have” for grammar purposes. These changes are for clarity and consistency.
In § 206.118(a)(1)(ii), FEMA removes the paragraph heading “adjustment to the sales price” for consistency and to comply with the
In § 206.118(a)(1)(ii), FEMA states that FEMA may approve adjustments to the sales price when selling a temporary housing unit to the occupant if the occupant is unable to pay the fair market value of the temporary housing unit and when doing so is in the best interest of the occupant and FEMA. This is consistent with current § 206.118(a)(1)(ii), except for FEMA adding “temporary” before “housing unit” for clarity; removing “of a unit;” replacing “purchaser” with “occupant” for consistency and because “occupant” is a defined term in § 206.111; replacing “home or” with “temporary housing unit;” and replacing “applicant” with “occupant” for consistency.
In § 206.118(a)(1)(iii), FEMA states that FEMA may sell a temporary housing unit to the occupant only on the condition that the purchaser agrees to obtain and maintain hazard insurance, as well as flood insurance on the temporary housing unit if it is or will be in a designated Special Flood Hazard Area. This is consistent with current § 206.118(a)(1)(iii), except for FEMA adding “temporary” before “housing unit” and “temporary housing” before “unit” for consistency.
In § 206.118(a)(2), FEMA replaces a colon with a period for grammar purposes. In the first sentence of § 206.118(a)(2)(i), FEMA states that FEMA may sell, transfer, donate, or otherwise make a temporary housing unit available directly to a State or other governmental entity, or to a voluntary organization, for the sole purpose of providing temporary housing to eligible displaced applicants in major disasters and emergencies. This is consistent with the first sentence of current § 206.118(a)(2)(i), except for FEMA adding “temporary housing” before “unit” for consistency and replacing “disaster victims” with “eligible displaced applicants” for consistency and clarity.
In § 206.118(a)(2)(i)(B), FEMA states that the State, governmental entity, or voluntary organization must agree to obtain and maintain hazard insurance on the temporary housing unit, as well as flood insurance if the housing unit is or will be in a designated Special Flood Hazard Area. This is consistent with current § 206.118(a)(2)(i)(B), except for FEMA adding “temporary housing” before “unit” for consistency.
In § 206.118(a)(2)(ii), FEMA states that FEMA may also sell temporary housing units at a fair market value to any other person. This is consistent with current § 206.118(a)(2)(ii), except for FEMA adding “temporary” before “housing units” for consistency.
In the first sentence of § 206.118(b), FEMA states that a temporary housing unit will be sold “as is, where is,” except for repairs FEMA deems necessary to protect health or safety, which are to be completed before the sale. This is consistent with current § 206.118(b), except for FEMA adding “temporary housing” before “unit” for consistency.
In the third sentence of § 206.118(b), FEMA states that in addition, FEMA will inform the purchaser that they may have to bring the installation of the temporary housing unit up to codes and standards that are applicable at the proposed site. This is consistent with the third sentence of § 206.118(b), except for FEMA replacing “he/she” with “they” and for adding “temporary housing” before “unit” for consistency. Plus, we are making these changes for clarity; as FEMA has always meant “temporary housing unit” when we used “unit” and FEMA has always meant that the installation of the temporary housing unit has to be up to codes and standards.
In § 206.119(a), FEMA states that FEMA and the State may provide financial assistance to individuals and households who are adversely affected by a major disaster and have other verifiable, documented disaster-related necessary expenses or serious needs. This is consistent with current § 206.119(a), except for FEMA adding the clause “are adversely affected by a major disaster and” after “households who” for clarity; adding “verifiable, documented” before “disaster-related” for clarification; and removing the current second sentence of § 206.119(a) and removing the current subparagraphs (a)(1) through (3) which state that to qualify for assistance under § 206.119, an applicant must also: apply to the United States Small Business Administration's (SBA) Disaster Home Loan Program for all available assistance under that program; and be declined for SBA Disaster Home Loan Program assistance; or demonstrate that the SBA assistance received does not satisfy their total necessary expenses or serious needs arising out of the major disaster. FEMA removes the above-mentioned regulatory text, as the removal of the designation of “SBA-dependent ONA” allows FEMA to provide all eligible applicants ONA regardless of loan repayment worthiness.
This aligns with the goal of the 2022-2026 FEMA Strategic Plan to instill equity as a foundation of emergency management by removing barriers to FEMA programs through a people first approach and achieving equitable outcomes for those we serve.
FEMA is removing the SBA requirement in order to streamline the application process and ensure all applicants can access assistance. However, we also recognize that doing so would allow applicants who might otherwise qualify for an SBA loan to instead receive a grant, thus increasing the cost of disaster assistance from the Disaster Relief Fund and reducing the potential for repayment of assistance. FEMA specifically seeks comment on the removal of the requirement to apply to the SBA to qualify for certain categories of assistance under ONA and whether FEMA should seek statutory authority for alternative ways to ensure higher income applicants first pursue SBA loans for this and other categories of assistance. From § 206.119(b) onward, FEMA reorganizes the order of the types of assistance to first cover the two new types of assistance: serious needs and displacement. FEMA states that the new types of assistance should go first as they are first in the delivery sequence and these two types of assistance have specific registration deadlines. FEMA also employees new paragraph headings of “Serious needs” and “Displacement” at § 206.119(b)(1) and § 206.119(b)(2), respectively.
In § 206.119(b)(1), FEMA states that serious needs assistance is the necessary expenses to assist applicants who report they are displaced as a result of the disaster, who report a need for shelter as a result of the disaster, or who have other emergency disaster expenses. These needs will vary according to each applicant and FEMA will not require receipts documenting the use of this assistance. FEMA will adjust the amount of this assistance to reflect changes in the CPI for all Urban Consumers that the Department of Labor publishes.
In § 206.111, FEMA revises the definition of
In § 206.119(b)(2), FEMA states that displacement assistance is the necessary expenses to assist displaced applicants with short-term living arrangements immediately following a disaster. Applicants must have registered within the 60-day or extended registration period. The award amount is based on a time period established by FEMA and approved in the State Administrative Option, as required by § 206.120(b). FEMA will not require receipts documenting the use of this assistance.
In § 206.119(b)(2), FEMA states the difference between lodging expense reimbursement and displacement assistance. Section 206.119(b)(2) does not require receipts for the new displacement assistance; while, lodging expense reimbursement does require receipts. Also, the new displacement assistance refers to the revised term
In § 206.119(b)(3), FEMA revises the paragraph heading to
Also, in § 206.119(b)(3), when describing eligible medical and dental assistance, FEMA states necessary expenses to assist applicants with medical and dental costs, which may include the following: medical service costs; dental service costs; repair or replacement of medical or dental equipment; loss or injury of a service animal; and costs for prescription medicines related to eligible medical or dental services, or which need to be replaced due to the disaster. This sentence is consistent with current § 206.119(c)(3), except for FEMA replacing “medical” with “necessary” before “expenses” for clarity; adding the clause “to assist applicants with medical and dental costs which” after “expenses” for clarity; removing “are generally” and “limited to” and adding “may include” for clarity; adding “service” between “medical costs” and “dental costs” for clarity and consistency; adding “or dental” before “equipment;” and adding the following new language “loss or injury of a service animal; and costs for prescription medicines related to eligible medical or dental services, or which need to be replaced due to the disaster” for clarity. FEMA currently covers the loss of prescription drugs in Chapter 3: VI.B.
In § 206.119(b)(4), FEMA adds a paragraph heading of “child care.” This is a new paragraph with a new paragraph heading. Currently, FEMA does not have child care expenses ONA regulations.
In § 206.119(b)(4), FEMA states that child care assistance is for necessary expenses to assist applicants with child care costs, which may include the following: standard child care service fees, including personal assistance services that support activities of daily living for children with disabilities and registration and health inventory fees for applicants who require a new child care provider. FEMA adds child care expenses under ONA; as section 1108 of SRIA
Currently, § 206.119(c)(4) paragraph heading is “funeral expenses.” In § 206.119(b)(5), FEMA changes the paragraph heading to “funeral” for
In § 206.119(b)(5), FEMA states that funeral assistance is necessary expenses to assist applicants with funeral costs, which may include the following: funeral services; burial or cremation; and other related funeral expenses. This is consistent with the current § 206.119(c)(4), except for FEMA replacing “funeral” with “necessary” before “expenses” for clarity, adding the clause “to assist applicants with funeral costs which” after “expenses” for clarity, removing “are generally limited to” and adding “may include” for clarity and to parallel the language in § 206.119(b)(3).
In § 206.119(b)(6), when describing eligible personal property assistance, FEMA includes necessary expenses to assist applicants whose primary residences were damaged by the disaster with personal property costs, which may include the following: clothing; household items, furnishings or appliances; computing devices; essential tools, specialized or protective clothing, computing devices, and equipment required for employment; computing devices, uniforms, schoolbooks and supplies required for educational purposes; and cleaning or sanitizing any eligible personal property item.
While FEMA had previously provided assistance for damaged computers, it was limited to those computers that were required for educational purposes or as a condition of employment. Recognizing that technology continues to have an increasing role in how households communicate, manage finances, and facilitate many other necessary aspects of daily living, FEMA, via IHP, is expanding Personal Property Assistance so that a household may receive financial assistance for a disaster damaged computing device, regardless of its intended use. Applicants may receive financial assistance for additional damaged computing devices that are needed for educational purposes or as a condition of employment, to include self-employed individuals.
In § 206.119(b)(6), FEMA clarifies that the personal property was in a pre-disaster primary residence in a declared disaster area when FEMA adds the clause “to assist applicants whose primary residences were damaged by the disaster.”
The paragraph heading § 206.119(b)(7) is the same as current § 206.119(c)(2), except for the change to the paragraph structure.
In § 206.119(b)(7), when describing eligible transportation assistance, FEMA states that FEMA and the State may provide financial assistance to individuals and households including necessary expenses to assist applicants with transportation costs, which may include the following: repairing or replacing vehicles; public transportation; and other transportation related costs or services. This is consistent with the current § 206.119(c)(2), except for FEMA removing “or serious needs” after “necessary expenses” and removing “for” before “transportation” for clarity; adding the clause “to assist applicants with” before “transportation” and adding “costs” after “transportation” for clarity; removing “are generally limited to” and adding “which may include” before “the following” for clarity and to parallel the language in § 206.119(b)(3); and removing “and” in current § 206.119(c)(2)(i), removing “financial assistance for” before “public,” removing “any;” moving the clause “other transportation related costs or services” from current § 206.119(c)(2)(ii) to § 206.119(b)(7)(iii).
The heading of § 206.119(b)(8) addresses moving and storage. This is consistent with current § 206.119(c)(5), except the heading does not include “expenses.” In § 206.119(b)(8), when describing eligible moving and storage assistance, FEMA states that FEMA and the State may provide financial assistance to individuals and households including necessary expenses to assist applicants whose primary residences were damaged by the disaster with costs related to moving and storing personal property, which may include the following: moving and storing personal property to avoid additional disaster damage; storage of personal property while disaster-related repairs are being made to the primary residence; and return of the personal property to the individual or household's primary residence. This is consistent with current § 206.119(c)(5), except for FEMA reorganizing this paragraph to include three subparagraphs so that it follows the format of the other paragraphs in this section. Also, § 206.119(b)(8), removes “and serious needs” after “necessary expenses,” and adds the clause “to assist applicants whose primary residences were damaged by the disaster with costs” before “related to moving and storing personal property” for clarity and replaces “generally” with “may.”
In § 206.119(b)(9), the paragraph heading is Group Flood Insurance purchase, which is consistent with the current paragraph heading at § 206.119(d), except for the paragraph structure. Since Group Flood Insurance is a type of assistance, it should be listed with the other types of assistance listed in § 206.119(b) instead of, as currently stands, its own separate paragraph. In § 206.119(b)(9), FEMA states that individuals identified by FEMA as eligible for assistance for flood insurable damage under the Stafford Act, 42 U.S.C. 5174, as a result of flood damage caused by a Presidentially-declared major disaster and who reside in a special flood hazard area (SFHA) may be included in a Group Flood Insurance Policy (GFIP) established under the National Flood Insurance Program (NFIP) regulations at 44 CFR 61.17. This sentence is consistent with current § 206.119(d), except for FEMA replacing “Other Needs assistance” with “assistance for flood insurable damage” for clarity; removing “section 408 of” and adding “42 U.S.C. 5174” for clarity and public ease of reference.
The first sentence of § 206.119(b)(9)(i) is consistent with the current first
In the first sentence of § 206.119(b)(9)(ii), FEMA states that FEMA or the State IHP staff must provide the NFIP with records of individuals who received assistance for flood-insurable losses within a SFHA and are to be insured through the GFIP. This is consistent with the current first sentence of § 206.119(d)(2), except for FEMA replacing “shall” with “must” for purposes of plain language and replacing “an “Other Needs” award” with “assistance for flood-insurable losses within a SFHA” for clarity. In the second sentence of § 206.119(b)(9)(ii), FEMA states that records of applicants to be insured must be accompanied by payments to cover the premium amounts for each applicant for the 3-year policy term. This is consistent with the current second sentence of § 206.119(d)(2), except for FEMA removing “Other Needs” for clarity and replacing “shall” with “must” for purposes of plain language. The third and fourth sentences in § 206.119(b)(9)(ii) are consistent with the third and fourth sentences in the current § 206.119(d)(2).
Section 206.119(b)(9)(iii) is consistent with current § 206.119(d)(3), except for the paragraph structure.
In § 206.119(b)(10), when describing eligible miscellaneous assistance, FEMA states that FEMA may provide assistance for other miscellaneous items or services that FEMA, in consultation with the State, determines are necessary expenses and serious needs. Section 206.119(b)(10) is consistent with current § 206.119(c)(6)(ii), except for FEMA adding a paragraph heading of “Miscellaneous” to § 206.119(b)(10). This last paragraph for section 206.119 serves as a “catch all” for types of assistance under the necessary expenses and serious needs provisions of the Stafford Act.
On September 30, 2002, FEMA issued regulations on the then-new Individuals and Households Program. The rule implemented the DMA2K and added §§ 206.110-120 to subpart D of part 206 of FEMA's regulations. The previous regulations, relating to the superseded Individual and Family Grant Program, were retained in § 206.131, but revised to apply only to disasters declared before October 15, 2002, the effective date of the new Individuals and Households Program regulations. Since these old regulations are now outdated and no longer necessary, FEMA removes and reserves § 206.131. Sections 206.132 through 206.140 are currently reserved, so removing and reserving § 206.131 extends the existing reservation to §§ 206.131-140.
Since FEMA is removing § 206.131 and reserving § 206.131, FEMA also is revising the Subpart E—heading from “Individual and Family Grant Programs' to “Reserved” for clarity.
In the first sentence of § 206.191(a), FEMA states that § 206.191 establishes the policies for implementing the Stafford Act, 42 U.S.C. 5155, entitled Duplication of Benefits. This sentence is consistent with current § 206.191(a), except for FEMA removing “section 312 of” and adding “42 U.S.C. 5155” after “the Stafford Act.” FEMA makes these edits for public ease of reference, as a United States Code cite is more accessible to the public and referencing the section of the Stafford Act just increases the length of the regulation.
In the first sentence of § 206.191(b)(1), FEMA states that Federal agencies providing disaster assistance under the Act or under their own authorities triggered by the Act, must cooperate to prevent and rectify duplication of benefits, according to the general policy guidance of the Federal Emergency Management Agency. This sentence is consistent with the first sentence of current § 206.191(b)(1), except for FEMA replacing “shall” with “must” for purposes of plain language.
In the second sentence of § 206.191(b)(1), FEMA states that the agencies must establish appropriate agency policies and procedures to prevent duplication of benefits. This sentence is consistent with the second sentence of current § 206.191(b)(1), except for FEMA replacing “shall” with “must” for purposes of plain language.
In § 206.191(d)(2), FEMA states that the delivery sequence is, in order of delivery: volunteer agencies' emergency assistance (except expendable items such as clothes, linens, and basic kitchenware); insurance (including flood insurance); housing assistance pursuant to the Stafford Act, 42 U.S.C. 5174; Other Needs assistance, pursuant to the Stafford Act, 42 U.S.C. 5174; Small Business Administration and Department of Agriculture disaster loans; Volunteer agencies' “additional assistance” programs; and the “Cora Brown Fund.” This is consistent with current § 206.191(d)(2), except for FEMA removing the Stafford Act section cites and replacing them with United States Code cites, which are more accessible to the public and switching the delivery sequence, so that FEMA disaster survivors do not have to go to SBA before seeking ONA assistance from FEMA. Also, FEMA removes “Farmers Home Administration” and replaces it with “Department of Agriculture” since the Farmers Home Administration is now administered by the successor agencies of the Farmers Home Administration, so the “Farmers Home Administration disaster loans” are now the “Department of Agriculture disaster loans.”
In the first sentence of § 206.191(d)(4), FEMA states that if following the delivery sequence concept would adversely affect the timely receipt of essential assistance by an individual or household, an agency may offer assistance which is the primary responsibility of another agency. This sentence is consistent with current § 206.191(d)(4), except for FEMA replacing “a disaster victim” with “an individual or household” for consistency and clarity.
In the § 206.191(d)(4)(ii), FEMA states that in the case where the individual or household has refused assistance from Agency A, Agency A must notify Agency B that it must recover assistance previously provided. This sentence is consistent with current § 206.191(d)(4)(ii), except for FEMA replacing “disaster victim” with “individual or household” for consistency and adding the clarifying phrase “Agency A must” before “notify Agency B.”
In § 206.191(e)(1)(i), FEMA states that in making an eligibility determination, FEMA, in the case of federally operated
In § 206.191(e)(2), FEMA states that in making an eligibility determination, FEMA or the State must remind the applicant about his/her responsibility to pursue an adequate settlement. In the second sentence of § 206.191(e)(2)(iii), FEMA states that where flood insurance is involved, FEMA must coordinate with the Federal Insurance Administration. These sentences are consistent with current § 206.191(e)(2) and the second sentence of § 206.191(e)(2)(iii), except for FEMA revising “the FEMA Regional Administrator” to “FEMA,” as the RA is not involved; adding “the” before State for grammar purposes; and revising “shall” to “must” for purposes of plain language.
In the first sentences of § 206.191(e)(3), FEMA states that each disaster assistance agency is responsible for preventing and rectifying duplication of benefits under the general authority of the Stafford Act, 42 U.S.C. 5155. This sentence is consistent with current § 206.191(e)(3), except for FEMA removing the phrase “the coordination of the Federal Coordinating Officer (FCO) and,” as field leadership does not coordinate the rectification of duplication of benefits; and revising “section 312” to “the Stafford Act, 42 U.S.C. 5155” for clarity and public ease of reference.
In the second sentence of § 206.191(e)(3), FEMA states that to determine whether duplication has occurred and established procedures have been followed, FEMA must, within 90 days after the close of the disaster assistance program's application period, for selected disaster declarations, examine on a random sample basis, FEMA's and other government and voluntary agencies' case files and document the findings in writing. This sentence is consistent with the current second sentence of § 206.191(e)(3), except for FEMA replacing “the Regional Administrator” with “FEMA” for consistency, replacing “shall” with “must” for purposes of plain language, and replacing “programs” with “program's” for grammar purposes.
In § 206.191(e)(4), FEMA states that if duplication is discovered, FEMA must determine whether the duplicating agency followed its own remedial procedures. This is consistent with current § 206.191(e)(4), except for FEMA replacing “the Regional Administrator” with “FEMA” for consistency and replacing “shall” with “must” for purposes of plain language.
In the first sentence of § 206.191(e)(4)(i), FEMA states that if the duplicating agency followed its procedures and was successful in correcting the duplication, FEMA will take no further action. This is consistent with current first sentence of § 206.191(e)(4)(i), except for FEMA replacing “the Regional Administrator” with “FEMA” for consistency.
In the second sentence of § 206.191(e)(4)(i), FEMA states that if the agency was not successful in correcting the duplication, and FEMA is satisfied that the duplicating agency followed its remedial procedures, no further action will be taken. This is consistent with the current second sentence of § 206.191(e)(4)(i), except for FEMA replacing “the Regional Administrator” with “FEMA,” as the RA is not involved.
In the first sentence of § 206.191(e)(4)(ii), FEMA states that if the duplicating agency did not follow its duplication of benefits procedures, or FEMA is not satisfied that the procedures were followed in an acceptable manner, then FEMA must provide an opportunity for the agency to take the required corrective action. This is consistent with the current first sentence of § 206.191(e)(4)(ii), except for FEMA twice replacing “the Regional Administrator” with “FEMA,” as the RA is not involved and replacing “shall” with “must” for purposes of plain language.
In the second sentence of § 206.191(e)(4)(ii), FEMA states that if the agency cannot fulfill its responsibilities for remedial action, FEMA must notify the recipient of the excess assistance, and after examining the debt, then as appropriate, take those recovery actions in conjunction with agency representatives for each identified case in the random sample (or larger universe, at FEMA's discretion). This is consistent with the current second sentence of § 206.191(e)(4)(ii), except for FEMA replacing “the Regional Administrator” with “FEMA,” as the RA is not involved; replacing “shall” with “must” for purposes of plain language; replacing “if it is determined that the likelihood of collecting the debt and the best interests of the Federal Government justify taking the necessary recovery actions, then” with “then as appropriate,” and replacing “the Regional Administrator's” with “FEMA's,” as the RA's discretion is not involved.
In the first sentence of § 206.191(e)(5), FEMA states that when the random sample shows evidence that duplication has occurred and corrective action is required, FEMA must urge the duplicating agency to follow its own procedures to take corrective action, and must work with the agency toward that end. This is consistent with the current first sentence of § 206.191(e)(5), except for FEMA replacing “the Regional Administrator and the FCO” with “FEMA,” as the RA and the FCO are not involved and replacing “shall” with “must” for purposes of plain language.
In the second sentence of § 206.191(e)(5), FEMA states that under its authority in the Stafford Act, 42 U.S.C. 5155, FEMA must require the duplicating agency to report to FEMA on the agency's attempt to correct the duplications identified in the sample. This is consistent with the current second sentence of § 206.191(e)(5), except for FEMA replacing “his/her” with “its;” replacing “section 312” with “the Stafford Act, 42 U.S.C. 5155,” for clarity and public ease of reference; replacing “the Regional Administrator” with “FEMA,” as the RA is not involved in duplication of assistance when assistance under other authorities is involved; replacing “shall” with “must” for purposes of plain language; replacing “him/her” with “FEMA;” and replacing “its” with “the agency's” for clarity.
In the first sentence of § 206.191(f), FEMA states that funds due to FEMA are recovered in accordance with the Department of Homeland Security's Debt Collection Regulations (6 CFR part 11—Claims) and the Federal Claims Collection Standards (Department of the Treasury—Department of Justice) (31 CFR chapter IX). This is consistent with the current first sentence of § 206.191(f), except for FEMA adding the follow clause at the end of the sentence “and the Federal Claims Collection Standards (Department of the Treasury—Department of Justice) (31 CFR chapter IX).” FEMA is adding the additional cross reference as much of 44 CFR part 11 uses the joint Department of the Treasury (Treasury)/Department of Justice (DOJ) regulations and there are provisions in the Treasury/DOJ regulations that are not addressed in the DHS regulations.
In the second sentence of § 206.191(f), FEMA states that section 1216 of DRRA, 42 U.S.C. 5174a, also provides FEMA the authority to waive debts owed by individuals and households who received assistance under subpart D of part 206. FEMA is adding a new second sentence at § 206.191(f) for clarity and transparency, since section 1216 of the DRRA directs FEMA to (1) waive debt owed by individuals and households who received assistance through the IHP where the assistance was distributed in error by FEMA; and (2) waive debt owed to the United States related to covered assistance that is subject to a claim or legal action, in accordance with section 317 of the Stafford Act, 42 U.S.C. 5160.
In § 206.191(g), FEMA adds a new paragraph heading of “Severability” for consistency with standards established by the
A severability clause is a standard legal provision. It indicates FEMA's intent that if a court finds that a specific provision of a rule is unlawful, the court should allow the remainder of the rule to survive. Those provisions that are unaffected by a legal ruling can be implemented by an agency without requiring a new round of rulemaking simply to promulgate provisions that are not subject to a court ruling.
FEMA believes that its authority to implement the provisions of this IFR is well-supported in law and practice and should be upheld in any legal challenge. FEMA also believes that its exercise of its authority reflects sound policy. However, in the event that any portion of the IFR is declared invalid, FEMA intends that the various provisions be severable. The provisions are not so interconnected that the rule's efficacy depends on every one of them remaining in place—implementation of the different provisions is sufficiently distinct that FEMA's aim of increasing equity and easing entry to the IA Program would still be furthered by maintaining the other provisions. For example, if a court were to find unlawful the change to the sequence of delivery in paragraph (d), the remaining provisions of the IFR, such as those on debt waiver in paragraph (f), could still function sensibly and FEMA would still intend them to stand.
The Administrative Procedure Act
As described more fully in the background section,
However, FEMA did not end its analysis here. FEMA's regulations on rulemaking provide that its general policy is to provide for public participation in rulemaking despite the APA exemption unless it determines that circumstances warrant a departure from that general policy.
In light of the increasing climate-related disasters facing the Nation, it is vital to implement these program improvements now to ensure IHP meets the increasing need for assistance to individuals and families recovering from disasters. Some impacts of climate change are already being felt as extreme weather events have increased in
FEMA has balanced the need for flexibility to adapt quickly to legal and policy mandates with its general policy favoring public participation in rulemaking. FEMA sought input on regulatory changes to the IHP through an RFI, published on April 22, 2021, seeking public input on its programs, regulations, collections of information, and policies to ensure they effectively achieve FEMA's mission in a manner that furthers the goals of advancing equity for all, including those in underserved communities; bolstering resilience from the impacts of climate change, particularly for those disproportionately impacted by climate change; and environmental justice.
FEMA has determined, in its discretion,
Executive Orders 12866 (Regulatory Planning and Review), as amended by Executive Order 14094 (Modernizing Regulatory Review), and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. OMB has designated this rule as a “significant regulatory action” as defined under section 3(f)(1) of Executive Order 12866, as amended by Executive Order 14094 because its annual effects on the economy exceed $200 million in any year of the analysis. Accordingly, OMB has reviewed it.
This Regulatory Impact Analysis (RIA) provides an assessment of the potential costs, benefits, and transfer payments from this rule under the criteria of Executive Orders 12866 and 13563. This analysis does not attempt to replicate the regulatory language of the rule or any other supporting documentation. FEMA urges the reader to review the rest of this rule in addition to reviewing this analysis. The complete RIA is available in the Docket. The following analysis is a summary of the information contained in the IA Equity RIA document.
FEMA publishes this IFR amending its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. Specifically, the IFR increases eligibility for home repair assistance by amending the definitions and application of the terms safe, sanitary, and functional, allowing assistance for certain accessibility-related items, and amending its approach to evaluating insurance proceeds; allows for the re-opening of the applicant registration period when the President adds new counties to the major disaster declaration; simplifies the documentation requirements for continued temporary housing assistance; simplifies the appeals process; simplifies the process to request approval for a late registration; removes the requirement to apply for a Small Business Administration loan as a condition of eligibility for ONA; and establishes additional eligible assistance under ONA for serious needs, displacement, disaster-damaged computing devices and essential tools for self-employed individuals. FEMA also makes to reflect changes to statutory authority that have not yet been implemented in regulation, to include provisions for utility and security deposit payments, lease and repair of multifamily rental housing, child care assistance, maximum assistance limits, and waiver authority. FEMA is also making several technical changes, codification of existing policy and practice, and non-substantive clarifications to its IA regulations. These changes are addressed in the Marginal Analysis Table that can be found in this document.
FEMA
FEMA makes the following changes to increase equity and ease of entry to IHP:
1. Revise IHP eligibility determinations based on insurance proceeds to help with unmet needs;
2. Expand application of habitability “safe, sanitary, and functioning” for IHP to include pre-existing damage;
3. Amend CTHA process and timeline in which applicants provide permanent housing plan documents. Also, codify CTHA income threshold of 30 percent of applicant's post-disaster income towards their post-disaster housing costs;
4. Remove the requirement to apply for an SBA loan prior to receipt of certain types of ONA;
5. Establish Serious Needs Assistance ONA;
6. Establish Displacement Assistance ONA;
7. Simplify IA appeals process;
8. Amend IA registration to allow for the reopening of the registration period
9. Amend IA late registration to accept verbal explanations for applicant requests;
10. Expand Personal Property Assistance ONA eligibility for computing devices;
11. Expand Personal Property Assistance ONA eligibility for self-employed essential tools;
12. Expand Home Repair Assistance to include accessibility-related items for applicants who have a disability but had unmet pre-disaster accessibility needs;
13. Codify Home Repair Assistance to include accessibility-related items for survivors with disaster-related disabilities;
14. Codify Home Repair Assistance for professional assessments; and
15. Codify requirements waiver of certain IHP debt.
Additionally, to support eligible applicants' ability to respond to and recover from major disasters and emergencies, Congress passed PKEMRA, SRIA, and DRRA. This rule will incorporate certain changes identified in those acts into regulation including assistance for Security Deposits and Utilities (PKEMRA), Child Care Assistance (SRIA), Lease and Repair of Multifamily Rental Housing (SRIA), and Maximum Amount of Assistance (DRRA).
The IHP provides financial assistance and direct services to eligible individuals and households who have uninsured or underinsured necessary expenses and serious needs as a result of a Presidentially-declared disaster. From 2010 to 2019, the average number of IHP recipients was 340,654 per year.
Following OMB Circular A-4 guidance, FEMA assessed impacts of this rule against a no-action baseline and pre-guidance baseline. The no-action baseline is what the world will look like without this rule. Accordingly, measuring the rule against a no-action baseline shows the effects of the rule as compared to current FEMA practice (
FEMA conducted a 10-year retrospective analysis of available IA Program data from 2010-2019, the most recent representative disaster period with complete data at the time of this analysis, to estimate how the rule will impact major disaster declarations costs, benefits, and transfers over a 10-year period.
Transfer payments are monetary payments from one group to another that do not affect the total resources available to society. The assistance FEMA provides to recipients through IHP grants are considered transfer payments because these are monetary payments from FEMA and States to individuals and households for their purchase of goods and services. In this analysis, FEMA has analyzed the impact of this rule on these transfer payments.
The rule under a no-action baseline will result in additional transfer payments due to the following changes for: Insurance Proceeds, Habitability, Removing SBA Requirement for ONA, Serious Needs Assistance, Displacement Assistance, Appeals Process, Reopening Registration Period, Personal Property Assistance (PPA) Computing Devices, PPA Self-Employed, and Home Repair for Accessibility-Related Items for Per-Disaster Unmet Needs. Other changes, such as providing reimbursement for a professional assessment for unclear damage and providing child care assistance, were changed by statute and have been already implemented by FEMA through IA Guidance. Because FEMA has already implemented these policies and codifies them without change, the codification of these policies will not impact transfer payments under the no-action baseline. Additionally, the late registration change of accepting verbal explanations for late registration requests is not expected to impact transfer payments.
Under a no-action baseline, the rule increases assistance provided from FEMA and States to individuals and households by an estimated $672 million per year. Specifically, FEMA's transfer payments increase by $512 million per year and State transfer payments, due to State ONA cost share, increases $160 million per year. The three largest changes (removing SBA requirement of ONA, Serious Needs Assistance, and Displacement Assistance) account for approximately 87 percent of the increase in transfer payments and detailed summaries of these impact are provided below measured against the no-action baseline.
FEMA's change removing the SBA loan application requirement prior to receipt of certain types of ONA accounts for more than 20 percent of the transfer payment increase, estimated at $155,551,150 (FEMA $116,663,362 + State $38,887,788) per year. Currently, applicants seeking certain types of IHP ONA must first apply and be denied for an SBA disaster loan. Through this process, applicants who qualify for an SBA loan are ineligible to receive certain types of ONA. Unlike ONA, which is a grant that does not need to be repaid, an SBA loan accrues interest and must be repaid. SBA-dependent ONA includes three types of assistance Personal Property assistance, Transportation assistance, and GFIP.
FEMA used ONA recipient data from EDW for 2010 through 2019 to establish a no-action baseline. From 2010 to 2019, an average of 174,693 recipients received ONA annually and the average award was $1,455. FEMA awarded $254,178,315 (= 174,693 × $1,455) of ONA on average annually. Accordingly, FEMA estimates that under a no-action baseline, 174,693 recipients will receive ONA annually and ONA assistance will total $254,178,315 per year. FEMA uses these amounts against which to measure the change to remove the SBA requirement for ONA.
FEMA used the three types of SBA-dependent ONA assistance (Personal Property assistance, Transportation assistance, and GFIP) historical ONA data to estimate the impact to households and individuals of the changes to eliminate the requirement to apply for an SBA loan prior to receipt of ONA. From 2010 to 2019, an average of 174,693 recipients received ONA annually. Based on FVL damages collected from ONA applicants 2010 through 2019, FEMA estimates the number applicants previously ineligible for ONA under Personal Property Assistance and Transportation Assistance with disaster damage was 574,899 referred applicants, or 57,490 applicants per year. These applicants previously would have either received an SBA loan or been eligible but chose not to receive a loan. FEMA estimates that, after removing the SBA application requirement, these 57,490 applicants currently ineligible for SBA-dependent ONA will receive the average ONA amount of $1,455 resulting in additional assistance of $83,647,950 (= 57,490 × $1,455) per year. The ONA average award amount of $1,455 was used for these applicants because Personal Property Assistance and Transportation Assistance are the most frequent types of SBA-ONA assistance and represents the average recipient award amount. Additionally, from 2010 through 2019 there were 422,958 referred ONA ineligible applicants, or 42,296 per year, with flood damage within a flood zone. Applicants located in Special Flood Hazard Areas, who receive disaster assistance after a flooding event, are required to buy and keep flood insurance on their property. As part of ONA, FEMA will provide GFIP for eligible applicants. FEMA estimates that, after removing the SBA application requirement, these 42,296 applicants currently ineligible for SBA-dependent ONA will receive the average GFIP amount of $1,700 resulting in additional assistance of $71,903,200 (42,296 × $1,700) per year in the future. The $1,700 specific GFIP average amount was used for these applicants because FEMA was able to identify those in a flood zone and GFIP would be in addition to any other SBA-dependent ONA amounts.
FEMA's primary impact estimate of this change is an additional $155,551,150 (= $83,647,950 + $71,903,200) in ONA awards annually. ONA is a cost-shared program between FEMA and the affected State, where the State typically covers 25 percent of ONA award and FEMA covers 75 percent. State's transfer payments for the additional ONA will be $38,887,788 per year (= $155,551,150 × 25 percent) and FEMA's transfer payments will be $116,663,362 per year (= $155,551,150 × 75 percent).
FEMA will establish Displacement Assistance under ONA that will provide assistance to eligible survivors whose homes are uninhabitable. FEMA expects Displacement Assistance will be a payment per recipient to cover 14 nights of lodging in most cases. Displacement Assistance will become a preceding step before requesting initial Rental Assistance and those receiving Displacement Assistance will be ineligible for LER Assistance.
Currently there are two primary types of assistance for displaced survivors: LER Assistance and initial Rental Assistance. FEMA used LER and initial Rental Assistance data from EDW for 2010 through 2019 to estimate the baseline for this change. FEMA estimates a no-action baseline of 142,273 recipients who receive LER or Rental Assistance (= 2,367 LER recipients + 139,906 Initial Rental Assistance recipients) and approved assistance in the amount of $315,987,647 (= $3,017,925 + $312,969,722) per year. Displacement Assistance will be a new type of assistance established through this rule; recipients will be ineligible for LER assistance.
To estimate the impact that establishing Displacement Assistance will have on transfer payments, FEMA used the State standard U.S. General Services Administration (GSA) lodging rates in conjunction with initial Rental Assistance data. Initial Rental Assistance data from 2010-2019 provided the recipient count for each State. FEMA assumes that individuals who received Initial Rental Assistance will meet the criteria to receive newly established Displacement Assistance. Additionally, FEMA used IHP data 2010-2019 to estimate that an average of 67,075 individuals per year were displaced due to housing damage but were unwilling to relocate. These individuals unwilling to relocate were ineligible for Rental Assistance but will be eligible for Displacement Assistance. Because the amount in Displacement Assistance will vary by State according to GSA lodging rates, FEMA needed recipient counts by State in order to estimate the amount in Displacement Assistance that FEMA might provide. FEMA multiplied the number of recipients per State by the GSA lodging rate for each State to calculate a per State total. Next, FEMA summed the State totals to create a national total. Finally, FEMA divided the national total by the total number of Initial Rental Assistance recipients to estimate an average per recipient Displacement Assistance amount of $1,369 (= $283,356,989 average annual amount ÷ 206,981 (139,906 Rental + 67,075 unwilling to relocate) average number of Initial Rental Assistance recipients and those unwilling to relocate). FEMA used the estimated the average Displacement Assistance amount per recipient of $1,369 multiplied by the average number of recipients for LER and initial Rental Assistance 209,348 (= 2,367 + 206,981) per year to estimate the average annual amount of Displacement Assistance at $286,597,412 (= $1,369 × 209,348). FEMA anticipates LER for displaced applicants with disaster-damage to their home will fall to near zero based on the sequence of assistance delivery for Displacement Assistance (
The estimated annual transfer payments from FEMA and States to recipients (individuals/households) for the new Displacement Assistance ONA increases assistance by $220,985,543 (= $536,973,190-$315,987,647 baseline) per year. ONA is a cost-shared program between FEMA and the affected State, where the State typically covers 25 percent of ONA award and FEMA covers 75 percent. States' transfer payments for Displacement Assistance ONA will be $55,246,386 (=
FEMA is also creating Serious Needs Assistance to provide assistance in an amount established by FEMA to eligible survivors to address immediate needs related to sheltering, evacuation, or other emergency disaster expenses. Serious Needs Assistance will be more widely available to survivors than CNA as Serious Needs Assistance will not require an additional State request and FEMA approval, unlike CNA. Serious Needs Assistance will take the place of CNA. FEMA used CNA data from EDW for 2015 through 2019 to estimate the baseline and impact for this change due to more frequent CNA usage during this period. Prior to 2015, CNA was rarely used with most years having zero CNA recipients.
FEMA used IHP applicant data from EDW for 2015 through 2019 to estimate the impact that replacing CNA with the new, broader, Serious Needs Assistance will have on transfer payments. FEMA's change to Serious Needs Assistance will standardize eligibility within the declaration area based on the applicant's location being out of the pre-disaster home or that they report they have other emergency disaster expenses.
FEMA estimates that the new Serious Needs Assistance ONA increases annual transfer payments from FEMA and States to recipients (individuals/households) by $209,930,514, for a total of $308,105,250 in Serious Needs Assistance per year (from a baseline of $98,174,736 in CNA per year). ONA is cost-shared between FEMA and the affected State. The State typically covers 25 percent of the ONA award and FEMA covers 75 percent. The States' portion of the additional assistance provided under Serious Needs Assistance ONA will be $52,482,628 (= $209,930,514 × 25 percent) per year and FEMA's portion will be $157,447,886 (= $209,930,514 × 75 percent) per year.
FEMA will expand Personal Property Assistance so that a household may receive financial assistance for a disaster-damaged computing device, regardless of its intended use. While FEMA had previously provided assistance for damaged computers, it was limited to those computers that were required for educational purposes or as a condition of employment. FEMA recognizes that technology continues to have an increasing role in how households communicate, manage finances, and facilitate many other necessary aspects of daily living. FEMA used 2010-2019 Personal Property ONA data to estimate the impact of the changes. FEMA estimated the number of additional recipients based on the average number of recipients with Personal Property awards 2010-2019 and the assistance estimated award amount for a computing device of $900. To estimate the number of additional recipients, FEMA used the average annual number of Personal Property Assistance recipients of 53,131 because recipients of Personal Property Assistance sustained damage to personal property and FEMA assumed all such recipients will be eligible for assistance to replace one computer. FEMA estimates that the annual impact of the change will be an additional $47,817,900 (= 53,131 × $900) in assistance. ONA is a cost-shared program between FEMA and the affected State, where the State typically covers 25 percent of ONA award and FEMA covers 75 percent. States' portion of the new Personal Property Assistance ONA will be $11,954,475 (= $47,817,900 × 25 percent) and FEMA's portion will be $35,863,425 (= $47,817,900 × 75 percent).
In Table 8 below, FEMA presents the total change in transfer payments from the rule as measured against a no-action baseline (
The rule under a pre-guidance baseline will result in additional transfer payments due to the following changes (mirroring the no-action baseline changes) that FEMA makes through this rule: Insurance Proceeds, Habitability, Removing SBA Requirement for ONA, Serious Needs Assistance, Displacement Assistance, Appeals Process, Reopening Registration Period, Personal Property Assistance (PPA) Computing Devices, PPA Self-Employed, and Home Repair for Accessibility-Relates Items for Per-Disaster Unmet Needs. FEMA also codifies a number of changes that FEMA has previously implemented through guidance. FEMA has measured the impact of these changes on transfer payments against the pre-guidance baseline. These are for changes to: CHTA, Professional Assessment for Unclear Damage, Debt Waiver, MLR, Assistance for Child Care, Assistance for Security Deposit Payments, Assistance for Utility Payments, Temporary Housing (TH) Maximum Cap Removal, and HA and ONA Maximum Cap Separation.
In Table 9 below, FEMA presents the total change in transfer payments from the rule as measured against a pre-guidance baseline (
Under a pre-guidance baseline, FEMA's three largest changes (removing SBA requirement of ONA, Serious Needs Assistance, and Displacement Assistance) account for approximately more than 80 percent of the increase in transfer payments estimated at $587 million (FEMA transfer payments $440 million + State transfer payments $147 million) per year.
FEMA estimates the 10-year undiscounted transfer payments of the rule measured against a pre-guidance baseline will be $7.11 billion. The total 10-year discounted transfer payments will be $6.06 billion at a 3 percent discount rate and $4.99 billion at a 7 percent discount rate, with annualized transfers of $711 million at a 3 percent and 7 percent discount rate (Table 9).
In Table 10 below, FEMA presents the total costs of the rule as measured against a no-action baseline (
Applicants will have additional costs due to increased burden hours for submitting documentation to FEMA related to these same changes: removal of the SBA application requirement ($334,300), registration period reopening ($830), and application for accessibility-related items ($10,982). FEMA estimates applicants burden hour costs increases by a total of $346,112 per year.
FEMA estimates total costs, to FEMA, States, and applicants, at $5,280,975 (= $41,816 + $4,300,000 + $593,047 + $346,112) in the first year, $5,239,159 (= $4,300,000 + $593,047 + $346,112) in the second year, and $939,159 (= $593,047 + $346,112) in subsequent years.
FEMA estimates the 10-year undiscounted costs of the rule will be $18.0 million over the next 10 years as measured against a no-action baseline. The total 10-year discounted costs will be $16.3 million at a 3 percent discount rate and $14.4 million at a 7 percent discount rate, with annualized costs of $1.9 million at a 3 percent and $2.1 million at a 7 percent discount rate (Table 10).
In Table 11 below, FEMA presents the total costs of the rule over the future 10-year period as measured against a pre-guidance baseline (
Applicants will have additional costs due to increased burden hours for submitting documentation related to the same changes: (1) SBA requirement removal ($334,300), (2) debt waiver ($385), (3) child care assistance ($593), (4) registration period reopening ($830), and (5) applicants with a disability applying for accessibility-related items ($10,982). FEMA estimates the total cost to applicants for the new changes in this rule and the changes FEMA has already implemented and codifies is $347,090 per year measured against a pre-guidance baseline. FEMA estimates costs, before cost saving, at $5,283,121 (= $41,816 + $4,300,000 + $594,215 + $347,090) in the first year, $5,241,305 (= $4,300,000 + $594,215 + $347,090) in the second year, and $572,190 (= $594,215 + $347,090) in subsequent years.
FEMA estimates the 10-year undiscounted costs of the rule will be $18.1 million measured against a pre-guidance baseline. The total 10-year discounted costs will be $16.3 million at a 3 percent discount rate and $14.4 million at a 7 percent discount rate, with annualized costs of $1.9 million at a 3 percent and $2.1 million at a 7 percent discount rate (Table 11).
The rule, under a no-action and pre-guidance baseline, will also reduce burden costs for applicants by removing the SBA loan application requirement prior to certain FEMA assistance and lowering the expected number of applicants spending time completing loan applications ($2,029,273), submitting CTHA streamlined incremental documentation ($870,862), the more flexible appeals process documentation ($861,338), and the simplified option for verbal explanations of late registration requests ($207,727) resulting in cost savings estimated at $1,939,927 per year. FEMA will also have cost savings related to CTHA documentation review ($7,220) and late registration review ($173,928) estimated at $181,148 per year. Additionally, SBA will have cost savings because fewer loan applications will be submitted and reviewed by SBA staff resulting in savings estimated at $3,877,763 per year. The combined Federal Government cost savings are estimated at $4,058,911 (FEMA $181,148 + SBA $3,877,763).
FEMA estimates the 10-year undiscounted cost savings of the will be $80.3 million. The total 10-year discounted cost savings will be $68.5 million at a 3 percent discount rate and $56.4 million at a 7 percent discount rate, with annualized cost savings of $8.0 million at a 3 percent and 7 percent discount rate (Table 12).
FEMA estimates net cost savings under a no-action baseline at $2.7 million (= $5,280,975 costs−$8,028,111 cost savings) in the first year, $2.8 million (= $5,239,159 costs−$8,028,111 cost savings) in the second year, and $7.1 million (= $980,975 costs−$8,028,111 cost savings) in subsequent years for this rule.
FEMA estimates net cost savings under a pre-guidance baseline at $2.7 million (= $5,283,121 costs−$8,028,111 cost savings) in the first year, $2.8 million (= $5,241,305 costs−$8,028,111 cost savings) in the second year, and $7.1 million (= $941,305 costs−$8,028,111 cost savings) in subsequent years for this rule.
FEMA was unable to quantify benefits of this rule because data does not explicitly exist for the types of benefits incurred. All benefits associated with the rule will be qualitative. FEMA anticipates this rule will promote more equitable access to disaster assistance by reducing applicant barriers, improving overall timeliness, and removing administrative burdens for disaster survivors. These benefits are expected to be broad based impacting disaster survivors applying for IHP assistance types covered in this rule. Ultimately, the rule will lead to a larger pool of eligible disaster survivors receiving disaster assistance funds than had in the past. The rule will also improve clarity and align FEMA regulations with statutory changes improving the efficiency and consistency of IHP assistance. The intent is that these changes will lead to improved recovery outcomes for applicant survivors with an emphasis on vulnerable populations.
The following is an overview of equity (consistent, systematic fair, just, and impartial treatment of all) benefits under a no-action baseline for changes of this rule.
FEMA's change removing the requirement for applicants to apply for SBA loans prior to receipt of ONA will alleviate survivor administrative burden and help streamline recovery. FEMA used EDW applicant data for the FEMA to SBA referral date and SBA to FEMA return date from 2010 through 2019 to estimate the potential change in speed of assistance of this change. FEMA analyzed applicants that FEMA referred to SBA because their income met the referral threshold but who were denied an SBA loan and returned to FEMA for ONA. FEMA estimates that 364,334 (36,433 per year) such applications were referred to SBA and returned to FEMA for ONA. On average, 33.6 days (12,244,620 days ÷ 364,334 applicants) were required for those referred to SBA for loan repayment eligible consideration, determined ineligible for SBA loans, and returned to FEMA for ONA. Two potential reasons for this time delay estimate could be high volume of SBA referred applicants during the initial days following the disaster and non-responsiveness of applicants. FEMA anticipates that eliminating the need to apply to SBA for a loan before receiving ONA will reduce the time it takes for these 36,433 applicants to receive assistance from FEMA by 33.6 days, thereby streamlining the disaster assistance process for many individuals. Non-repayable assistance grants to survivors also provides greater financial assistance, than repayable SBA loans, allowing disaster survivors and communities to recover more quickly. Additionally, lower income survivors are less likely to apply for an SBA loan, due to uncertain financial and employment conditions following a disaster. Benefits of this change will remove administrative burdens to increase applicant access to assistance.
Benefits from streamlining the appeals process by removing the signed letter requirement are that the appeal requirements will be more equitable and flexible. Applicants could still submit a signed letter explaining the reason(s) for an appeal or applicants could instead choose to provide verifiable documentation of their appeal. To further assist applicants with navigating
FEMA's change for CTHA incremental documentation requirements for PHPs will lessen applicant burden and help FEMA provide appropriate resources and assistance to applicants throughout their housing recovery process. FEMA recognizes that post-disaster recovery can be a challenge for all applicants, FEMA will engage more closely to assist applicants in achieving a recovery outcome by the end of the period of assistance. Depending on the disaster, applicants may not be able to satisfy requirements of a PHP during the initial application. To expedite the recovery process, FEMA will remove the requirement for applicants to select a permanent housing plan during the initial application. FEMA will work with applicants through all recertification intervals to review their progress toward their PHP and identify specific resources to assist the applicant in achieving their recovery goals.
Benefits from the establishment of Displacement Assistance will address the need many disaster survivors have for short-term transitional assistance. Displacement Assistance will also be a more equitable and efficient way to provide short-term lodging rather than LER, as it is proactive assistance increasing the benefit for applicants that do not have the means to pay for lodging costs up front. It will also improve assistance equity as displaced disaster survivors within an area receive a consist amount of assistance to address their short-term lodging needs ensuring displaced survivors receive assistance covering common needs and allows for recipients to receive assistance quickly. Displacement Assistance also improves assistance flexibility and may avoid unintended use of funds, reducing the risk of applicants unable to qualify for Rental Assistance because they spent Rental Assistance funds on immediate needs or ineligible temporary housing solutions like staying with friends and family.
FEMA's change establishing Serious Needs Assistance will broaden eligible expense categories compared with CNA, thereby improving assistance flexibility. This change may avoid unintended use of funds reducing the risk of applicants unable to qualify for other FEMA assistance because they spent the prior more narrowly defined CNA on other needs. It will also provide all impacted disaster survivors a consistent amount of assistance ensuring all displaced survivors receive assistance covering common needs and allows for recipients to receive assistance more quickly. The benefits of establishing Serious Needs Assistance improves assistance flexibility to better help disaster survivors.
Benefits from expanding Home Repair and Home Replacement Assistance eligibility for accessibility-related items when these items were not present prior to the disaster and are necessary to make the damaged home safe and functional for someone who has a pre-existing disability increases assistance equity for those disaster survivors with a disability. This change will also address unmet needs and more effectively assist applicants achieve permanent housing solutions. FEMA continually faces challenges finding available accessible housing post-disaster, as there is a limited amount of accessible housing stock.
FEMA's change of broadening the “uninhabitable” definition to encompass disaster damage to the applicant's primary residence that causes the home to be unsuitable for occupancy better supports disaster survivors whose residences incurred disaster damage. According to the Federal Reserve, 32 percent of Americans could not cover an emergency expense of $400 with cash or its equivalent, with 11 percent saying they would be unable to pay the expense by any means.
Benefits from expanding Personal Property Assistance so that a household may receive financial assistance for a disaster-damaged computing device, regardless of its intended use will provide additional assistance to help survivors replace disaster-damaged computing devices. This change reflects FEMA recognizing technology continues to have an increasing role in how households communicate, manage finances, and facilitate many other necessary aspects of daily living. This change aligns with the purpose of IHP is to determine what meets the basic needs of disaster survivors. In the current landscape, most households have a computing device;
FEMA's change for insurance proceeds, no longer comparing net insurance settlement amounts to the applicable maximum IHP Assistance amount when determining eligibility will more equitably address the unmet needs of underinsured applicants. FEMA's current use of the applicable maximum IHP Assistance amount as a threshold for determining eligibility creates an inequity between similarly impacted applicants. A one-dollar difference in net insurance settlement at the applicable maximum IHP Assistance amount determines an applicant's ineligibility for potentially thousands of dollars in IHP Assistance verses an applicant with one dollar less in net settlement who will be eligible. Excluding those insured applicants with a net insurance settlement amount that
Under a pre-guidance baseline, the benefits above will apply as well as the benefits of the changes FEMA has already implemented and is codifying. The following provides an overview of additional equity (consistent, systematic fair, just, and impartial treatment of all) benefits under a pre-guidance baseline.
Amending the definition of “financial ability” to pay by removing the comparison between pre-disaster and post-disaster income and awarding CTHA recipients 30 percent of their post-disaster housing income streamlines applicant documentation and more accurately measures applicants' post-disaster financial situation. This change also reduced documentation of the pre-disaster income to lessen applicant burdens.
FEMA's change for MLR to lease, repair, and improve existing, vacant multifamily units as a type of temporary housing for applicants is cost-effective and more survivor-centric alternative to other temporary housing options. In addition to cost-effectiveness and improvements to properties that benefit affected communities, multifamily lease and repair assistance will provide more capacity for temporary housing. If available properties in the designated area are exhausted, applicants or FEMA will have more flexibility by incorporating this option in the portfolio of housing solutions.
In 2014, FEMA expanded assistance to recognize child care as a disaster-caused financial burden because the applicant's gross household income has decreased as a direct result of the disaster or because child care expenses have increased as a result of the disaster. By increasing assistance eligibility and reducing disruptions to affordable, local child care services, FEMA enables applicants to financially recuperate sooner and reduces disruptions to families.
FEMA's change allowing applicants to use security deposit payments for another property when an applicant is unable to return to their disaster-damaged home better assists applicants by allowing the recipient to make timely progress toward finding a long-term housing solution. This change increases assistance flexibility to better help the survivor recover.
FEMA revisions to align with section 698d of the PKEMRA to allow for payments of utilities, excluding telephone service. Providing additional assistance for utility payments increases CTHA flexibility to better help displaced survivors recover by reducing temporary housing burden costs for those with financial needs.
Benefits from removal of Temporary Housing Assistance applied to the Financial Housing Assistance maximum ensures those applicants with the most severe disaster damage may still have funds available to them for temporary housing solutions.
FEMA's change to have separate and individual maximum caps for HA and ONA ensures those applicants with the most severe disaster damage receive eligible assistance at least equivalent to similarly impacted disaster survivors for HA and ONA. This policy change removes limiting HA like Home Repair Assistance due to assistance already ready received for ONA.
FEMA change to waive debt for individuals and households who received assistance through the IHP that was distributed in error by FEMA benefitted disaster survivors who accrued this debt through no fault of their own. This change reduced repayment burden for these applicants which could place additional financial hardship on disaster survivors. FEMA made this policy change to align with DRRA.
As discussed above, to provide a full understanding of the impacts of the policy changes discussed in this rule, DHS measured their impacts relative to two baselines. The no action baseline represents a state o the world under current FEMA policies; that is, impacts of the rule as compared to IA Guidance. The second baseline considered in the analysis is the pre-guidance baseline, which represents a state of the world before statutory changes and/or FEMA's implementing guidance. Table 13 provides a summary of the impacts of the rule over a 10-year future period of analysis as measured against a no-action baseline. Table 14 provides a summary of the impacts measured against the pre-guidance baseline for a 21-period of analysis that includes the actual impacts from the changes that FEMA has already implemented and will codify (2010-2019) combined with the future impacts of these changes and the new changes FEMA implements through this rule (2020-2030).
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), and section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 847, 858-59 (Mar. 29, 1996) (5 U.S.C. 601 note) require that special consideration be given to the effects of regulations on small entities. When an agency is required to publish a general NPRM, it must prepare a regulatory flexibility analysis describing the impact of the rule on small entities.
As is discussed above, the APA generally requires agencies to publish an NPRM, but it provides an exception for matters relating to public property, loans, grants, benefits, or contracts.
This rulemaking is related to financial assistance and direct services FEMA provides to individuals and households who, as a direct result of a major disaster, have necessary expenses and serious needs in cases in which the individuals and households are unable to meet such expenses or needs through other means. 42 U.S.C. 5174. The only part of the rulemaking which might affect small entities are the changes to 44 CFR 206.113(b)(9) where FEMA is allowing self-employed individuals to receive personal property assistance for essential tools damaged in the disaster. That means this rulemaking will not have a significant impact on small entities as it will only impact those self-employed individuals who choose to apply for personal property assistance, in their individual capacity, not as a self-employed business.
Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that before promulgating any general NPRM that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year, and before promulgating any final rule for which a general NPRM was published, the agency shall prepare a written statement detailing the effect on State, local, and Tribal governments and the private sector. This is a final rule for which a general NPRM was not published, and thus preparation of such a statement is not required.
Section 102 of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
For efficiency, Federal agencies identify in their NEPA implementing procedures categories of actions (categorical exclusions (CATEXs)) that normally do not have a significant effect on the human environment individually or cumulatively. 40 CFR 1501.4. If a CATEX applies then the, preparation of an EA or environmental impact statement EIS is not required. However, the Federal agency must determine if there are extraordinary circumstances which may result in the action having a significant impact. If the agency can lessen the significance of the impact, the agency may still apply the CATEX. However, if there is a significant impact, the CATEX does not apply, and further environmental review is required. 40 CFR 1501.4. If an action does not qualify for a CATEX and has the potential to significantly effect the environment, the agency must prepare an EA to evaluate the environmental impact of the action. The EA will determine whether the agency may issue a finding of no significant impact or must prepare an EIS. A Federal agency is required to prepare an EIS if the proposed action will have significant effects on the quality of the human environment. 40 CFR 1501.3, 1502.3.
DHS has established categorical exclusions for categories of actions that experience has shown do not individually or cumulatively have a significant effect on the human environment. The DHS categorical exclusions are listed in Appendix A of DHS Instruction Manual 023-01-001-01,
The majority of the revisions in this rulemaking apply to the regulations for the Individuals and Households Program, which is a voluntary grant program that provides financial assistance and direct services to eligible individuals and households who have uninsured or underinsured necessary expenses and serious needs as a result of a Presidentially-declared disaster. FEMA publishes this IFR to amend its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. Specifically, the IFR increases eligibility for home repair assistance by amending the definitions and application of the terms safe, sanitary, and functional, allowing assistance for certain accessibility-related items, and amending its approach to evaluating insurance proceeds; allows for the re-opening of the applicant registration period when the President adds new counties to the major disaster declaration; simplifies the documentation requirements for continued temporary housing assistance; simplifies the appeals process; simplifies the process to request approval for a late registration; removes the requirement to apply for a Small Business Administration loan as a condition of eligibility for ONA; and establishes additional eligible assistance under ONA for serious needs, displacement, disaster-damaged computing devices and essential tools for self-employed individuals. FEMA also makes revisions to reflect changes to statutory authority that have not yet been implemented in regulation, to include provisions for utility and security deposit payments, lease and repair of multifamily rental housing, child care assistance, maximum assistance limits, and waiver authority. This action is not a piece of a larger action, but rather amends subpart D, E, and F of 44 CFR part 206
These changes implement existing statutory requirements and amend existing regulations. FEMA is not aware of any significant impact on the environment or any change in environmental effect that will result from these changes. Accordingly, FEMA finds promulgation of this rule clearly fits within the scope of Categorical Exclusion A(3) in Appendix A of the Instruction Manual, which provides a categorical exclusion for promulgation of certain types of rules, including rules that interpret or amend an existing regulation without changing its environmental effect (Categorical Exclusion A3(d)).
In accordance with DHS NEPA implementing procedures, FEMA finds no extraordinary circumstances associated with this rulemaking that may give rise to significant environmental effects requiring further analysis and documentation. This rule addresses specific amendments to subpart D, E, and F of 44 CFR part 206 and is not part of a larger action by FEMA. This action is therefore categorically excluded, and no further NEPA analysis or documentation is required.
This rule contains information collection revisions necessary to support FEMA's implementation of the Individual Assistance Program Equity Interim Final Rule. The Individual Assistance Registration and Individuals and Households Program collections are assigned OMB Control Numbers 1660-0002 and 1660-0061. The collections are submitted under OMB's emergency clearance procedures to allow implementation as of the effective date of this interim final rule. Additionally, FEMA will seek public comments on both collections through the normal clearance process.
Under the Privacy Act, 5 U.S.C. 552a, an agency must determine whether implementation of a proposed regulation will result in a system of records. A “record” is any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his/her education, financial transactions, medical history, and criminal or employment history and that contains his/her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. See 5 U.S.C. 552a(a)(4). A “system of records” is a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. An agency cannot disclose any record which is contained in a system of records without written consent from the file subject, or an applicable Privacy Act exception. 5 U.S.C. 552a(b).
The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires specific procedures when an agency takes action to develop or procure information technology that collects, maintains, or disseminates information that is in an identifiable form. This Act also applies when an agency initiates a new collection of information that will be collected, maintained, or disseminated using information technology if it includes any information in an identifiable form permitting the physical or online contacting of a specific individual.
To meet the requirements of the Privacy Act and E-Government Act of 2002, the agency performed a Privacy Threshold Analysis, which is an initial determination of whether the regulation triggers the requirements of either of those Acts. The system is covered by the existing Privacy Impact Assessments (PIAs): DHS/FEMA/PIA-049 Individual Assistance (IA) Program and DHS/FEMA/PIA-057 Individuals and Households Program Equity Analysis. The system is also covered by an existing System of Records Notice: DHS/FEMA-008 Disaster Recovery Assistance Files.
Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments,” 65 FR 67249, Nov. 9, 2000 applies to agency regulations that have Tribal implications, that is, regulations that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Under this Executive order, to the extent practicable and permitted by law, no agency will promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulation are provided by the Federal Government, or the agency consults with Tribal officials.
The majority of the revisions in this rulemaking apply to the regulations for the IHP, which is a voluntary grant program that provides financial assistance and direct services to eligible
In its request for information,
All four of the comments addressed the same general issue: the eligibility of subsistence cabins and equipment under IHP.
There are a number of different factors that can impact eligibility under IHP ONA and a close review of the specific circumstances for these subsistence cabins and equipment would be needed to determine whether they are in fact eligible. Even if a given item is eligible, however, the applicable STT government for the declaration must identify all the ONA-eligible personal property and miscellaneous items it wishes to cover, as well as the maximum number of items each individual or household may receive.
Per current regulations, 44 CFR 206.113(b)(9), FEMA may not provide IHP assistance for business losses, including farm businesses and self-employment. Under current policy, self-employed individuals are eligible for FEMA assistance for their personal losses, but not for necessary expenses and serious needs related to business losses.
As part of this IFR and in response to comments received on the agency's RFI, FEMA amends its regulations to allow FEMA to provide self-employed applicants with IHP financial assistance for necessary expenses and serious needs for occupational tools. Assistance would be based on a need to replace certain disaster-damaged items required for self-employment. This would include disaster-damaged tools and equipment, or other items required for a specific trade or profession, not provided or supplied by the employer. Depending on the item requested by the applicant and its purpose, subsistence items may be eligible for assistance under this authority.
A rule has implications for federalism under Executive Order 13132 “Federalism” (64 FR 43255, Aug. 10, 1999), if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. FEMA has analyzed this rule under Executive Order 13132 and determined that it does not have implications for federalism.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, “Governmental Actions and Interference With Constitutionally Protected Property Rights” (53 FR 8859, Mar. 18, 1988).
Executive Order 12898 “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, Feb. 16, 1994), as amended by Executive Order 12948 (60 FR 6381, Feb. 1, 1995) mandates that Federal agencies identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations. It requires each Federal agency to conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that those programs, policies, and activities do not have the effect of excluding persons from participation in, denying persons the benefit of, or subjecting persons to discrimination
The supplemental definition of “Environmental Justice” in sec. 2.(b)(ii) of Executive Order 14096 “Revitalizing Our Nation's Commitment to Environmental Justice for All” (88 FR 25251, April 26, 2023) includes the just treatment and meaningful involvement of all people such that they have equitable access to subsistence practices and the Section 1 policy statement says that the Federal Government must recognize, honor and respect the different cultural practices—including subsistence practices, ways of living, Indigenous Knowledge, and traditions—in communities across America.
The majority of the revisions in this rulemaking apply to the regulations for the IHP, which is a voluntary grant program that provides financial assistance and direct services to eligible individuals and households who have uninsured or underinsured necessary expenses and serious needs as a result of a Presidentially-declared disaster FEMA publishes this IFR amending its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. Specifically, the IFR increases eligibility for home repair assistance by amending the definitions and application of the terms safe, sanitary, and functional, allowing assistance for certain accessibility-related items, and amending its approach to evaluating insurance proceeds; allows for the re-opening of the applicant registration period when the President adds new counties to the major disaster declaration; simplifies the documentation requirements for continued temporary housing assistance; simplifies the appeals process; simplifies the process to request approval for a late registration; removes the requirement to apply for a Small Business Administration loan as a condition of eligibility for ONA; and establishes additional eligible assistance under ONA for serious needs, displacement, disaster-damaged computing devices and essential tools for self-employed individuals. FEMA also makes revisions to reflect changes to statutory authority that have not yet been implemented in regulation, to include provisions for utility and security deposit payments, lease and repair of multifamily rental housing, child care assistance, maximum assistance limits, and waiver authority. There are no adverse effects and no disproportionate effects on minority populations and low-income populations.
On April 22, 2021, FEMA published an RFI on FEMA Programs, Regulations, and Policies.
FEMA held public meetings and extended the comment period on the RFI to ensure all interested parties had sufficient opportunity to provide comments on FEMA's programs.
In response to its RFI, FEMA received five comments on environmental justice related to this rule.
FEMA recognizes that current regulations limit assistance to applicants with residences that incurred disaster-caused damage; therefore, the regulations, as written, do not allow FEMA to address applicants' immediate safety and sanitation concerns and prevent FEMA from addressing or assessing the general livability issues with the applicant's residence when determining Housing Assistance eligibility. As part of this rule, FEMA broadens the definition of uninhabitable to encompass any damage to the applicant's disaster damaged primary residence that causes the home to be unsuitable for occupancy or any disaster damage, that if left unrepaired, would impact habitability in the future. FEMA redefines “uninhabitable” to mean the dwelling is not safe or sanitary. “Safe” will refer to being secure from hazards or threats to occupants, and “sanitary” will refer to being free of health hazards. FEMA also removes the requirement for disaster-damaged real property components to be functional immediately before the disaster in order to provide assistance for pre-existing damage exacerbated by the disaster. Applicants with minimal damage, including those without the means to pay for minimal damage or who are unable to complete the work themselves, would generally be eligible for Home Repair Assistance under the regulations.
In response to public requests for IHP policy that meets applicants' disaster-caused structural home modification needs, FEMA recently amended its Home Repair Assistance policy to include
• Exterior ramp.
• Grab bars.
• Paved path of travel to the primary residential entrance (for accessible ingress or egress from the applicant's vehicle to their dwelling).
In response to public comments, FEMA has also changes to the regulatory text at 44 CFR 206.117(b)(2) and a new 44 CFR 206.113(a)(9) as a part of this IFR. The changes will allow FEMA flexibility to provide financial assistance to applicants for the installation or construction of real property items that were not present in the home prior to the disaster. Specifically, these changes would allow IHP to expand its existing policy, which provides for the installation of ADA related real property to applicants with disaster-caused needs, to include Home Repair Assistance for disaster survivors with pre-existing, pre-disaster needs for accessibility-related items, such as an exterior ramp, grab bars, etc., that make their home safe and functional when any level of disaster-caused real property damage occurs to the primary residence.
One commenter recommended programmatic changes they stated would promote environmental justice.
Different Federal aid programs have different statutory requirements for eligibility and an applicant who qualifies for one may not necessarily qualify for another. The eligibility standards for FEMA's IA Program are not the same as those for the other Federal programs the commenter listed, and FEMA is not able to change statutory requirements via regulation.
The commenter further suggested a way to streamline policies to promote environmental justice is to connect agency databases. This way, Federal Government agencies already working with individuals from environmental justice communities, can share information about those in need at the time the individual makes an application for disaster relief.
FEMA recognizes that data sharing might make it easier to access information about disaster survivors. However, collecting, maintaining, and sharing data on a large scale presents challenges with respect to data security. The Stafford Act and other authorities allow FEMA to collect personal information to determine eligibility and administer FEMA disaster assistance as a result of an Emergency or a Presidentially-declared disaster. FEMA cannot use other agencies' data for purposes not specifically authorized by statute.
The same commenter stated that to further promote equity, resilience to climate change, and environmental justice, FEMA should reduce its focus and the resources it commits to preventing fraud and duplication of benefits.
Section 312(a) of the Stafford Act, 42 U.S.C. 5155(a), requires all Federal agencies to prevent recipients of disaster assistance from receiving such assistance for losses as to which the recipient has received financial assistance under any other program or from insurance or any other source. In short, 42 U.S.C. 5155(a) prohibits the use of Federal disaster assistance to pay a person or entity twice for the same disaster loss. In addition, per Section 408(i) of the Stafford Act, 42 U.S.C. 5174, FEMA must develop a system, including an electronic database, that minimizes the risk of making duplicative payments or payments for fraudulent claims under this section. FEMA must ensure good stewardship of taxpayers' funds and avoid both fraud and duplication of benefits as mandated by law. Section 696 of PKEMRA, 6 U.S.C. 795, also requires FEMA to develop and maintain proper internal management controls to prevent and detect fraud, waste, and abuse.
While FEMA continues to ensure we remain good stewards of taxpayers' funds, based on the comments received via the RFI, FEMA updated its policy to provide more documentation flexibilities in order to verify occupancy. Specifically, as outlined in the
Like occupancy, when FEMA is unable to verify an applicant's ownership of their primary residence, the applicant may provide FEMA with documentation to prove ownership. Based on comments submitted via the RFI, FEMA also updated its policy to provide more documentation flexibilities in order to verify ownership. Specifically, as outlined in the
The commenter also stated that FEMA's determination letters sent to IA applicants are not effective at achieving the objective of assisting those most at need within environmental justice communities because they fail to provide useful or understandable information about the types of assistance provided or denied and the reasons for denial.
FEMA continually updates and assesses the clarity and effectiveness of our IHP eligibility letters. FEMA's letters do not rely solely on codes and provide plain language descriptions of reasons for ineligibility and how to appeal. FEMA's regulations, at 44 CFR 206.115(b), require that appeals must be in writing and explain the reason(s) for the appeal. In this rule, FEMA is
The commenter stated that internet access is an environmental justice concern and that members of underserved communities, including people of color, and the elderly tend to lack reliable access to the internet and FEMA's online portal.
While FEMA does encourage applicants to apply online when possible, we appreciate that not all applicants will have reliable internet access, especially right after a disaster. There are other options besides the internet for applying for IHP assistance, and if an applicant prefers not using the internet or does not have reliable access to the internet, they may apply over the telephone or in-person, instead.
This commenter also stated that immigrant households and those with undocumented individuals face a number of environmental justice issues, that the FEMA application asks for information on all members of a household, not just the eligible members, and that the FEMA application and other forms indicate that information provided regarding an application for assistance may be shared with other DHS components, including U.S. Immigration and Customs Enforcement.
While the Privacy Act requires FEMA to make applicants aware of this information, we have updated this data sharing language in the past several years to remove references to U.S. Immigration and Customs Enforcement and clarify the reasons FEMA would share information. The current version informs applicants that, consistent with the Privacy Act, as amended, 5 U.S.C. 552a, FEMA may share individuals' information with Federal, State, Tribal, and local agencies and voluntary organizations to enable individuals to receive additional disaster assistance or to allow FEMA to administer assistance.
One commenter stated that the focus of many FEMA programs on replacing what was lost in a disaster propagates environmental injustices and inequity for marginalized communities.
FEMA may provide financial assistance to repair an owner-occupied primary residence, utilities, and residential infrastructure, including private access routes damaged as a result of a Presidentially-declared disaster. Home Repair Assistance is intended to make the damaged home safe, sanitary, or functional.
In this rule, FEMA removes the requirement for real property components to be functional immediately before the disaster to provide assistance for pre-existing damage. Under this IFR, when a component of the home with pre-existing damage is further damaged by the disaster, FEMA will provide assistance to fully repair or replace the item (as appropriate) rather than denying assistance solely because not all damage was caused by the disaster.
One commenter stated FEMA should prioritize comprehensive data collection and analysis to achieve the agency's equity and environmental justice goals, and noted this may require collecting more specific data than FEMA has collected before.
In August of 2022, FEMA began gathering demographic information from disaster survivors that choose to provide it. This data will be used to assess the impact of IA Programs and policies on underserved populations using FEMA's existing analysis processes. Although some data and information will be provided for background or situational awareness, the objective will be to affect positive changes by conducting analysis of the collected data to better understand program outcomes accordingly based on factors such as race, ethnicity, and income and updating policies and programs within our regulatory and statutory parameters to achieve greater equity.
This commenter also stated that FEMA could extend the process of self-certifying homeownership to members of underserved, historically marginalized, and environmental justice communities nationwide.
Per IAPPG 1.1, FEMA verifies occupancy through an automated public records search or submitted documents. In locations where automated verification of public records is limited, FEMA may partner with applicable authorities from the State, local, Tribal, or Territorial government to verify ownership or occupancy. When FEMA is unable to verify an applicant's occupancy of their disaster-damaged primary residence, the applicant may provide FEMA with documentation for
Like occupancy, when FEMA is unable to verify an applicant's ownership of their primary residence, the applicant may provide FEMA with documentation to prove ownership. Based on comments submitted via the RFI, FEMA also updated its policy to provide more documentation flexibilities in order to verify ownership. Specifically, as outlined in the
One commenter stated that FEMA's policies forcing disaster survivors to rebuild their homes in hazardous and racially segregated and environmentally blighted areas fails to promote environmental justice.
Per Section 408 of the Stafford Act, 42 U.S.C. 5174, FEMA may provide financial assistance to repair or replace an owner-occupied primary residence damaged as a result of a Presidentially-declared disaster. An applicant who receives Home Repair or Home Replacement Assistance may use the funds to either repair their disaster damaged dwelling or for the purchase of a home in a different location.
FEMA recognizes that helping disaster survivors address hazard mitigation measures while repairing their homes from disaster damage will help make their homes more resilient. FEMA began including additional assistance for mitigation in Home Repair Assistance awards for disasters declared on or after May 26, 2021. Section 408(c)(2)(A)(ii) of the Stafford Act, 42 U.S.C. 5174(c)(2)(A)(ii), authorizes FEMA to provide IHP assistance for eligible hazard mitigation measures that reduce the likelihood of future damage to such residences, utilities, or infrastructure, under the Home Repair Assistance provision. Hazard mitigation under IHP is awarded as part of Home Repair Assistance for specific real property components that existed and were functional prior to the disaster—roof, water heater, furnace, and main electrical panel. Hazard mitigation measures, such as elevating the water heater and furnace, are intended to minimize future damage to owner-occupied residences and are subject to the IHP maximum amount of Home Repair Assistance. FEMA plans to expand hazard mitigation under IHP in the future to include additional mitigation measures.
The same commenter stated that a number of other issues impact environmental justice. First, the commenter stated FEMA's assistance policy for the homeless population is discriminatory, noting that homeless people living in shelters or unsheltered on the street do not qualify for any housing assistance.
FEMA's IHP assistance is intended to assist with disaster-caused losses. Therefore, issues related to pre-disaster homelessness are outside the scope of the program. As the commenter noted, applicants who resided in non-traditional housing (including tents) and are able to verify occupancy are eligible for certain types of housing assistance, in addition to ONA.
Second, the commenter noted that the “Needs Assessment” is the first of many applications for recovery that applicants submit and that it provides crucial information that gives governments a realistic assessment of the amount of
It is unclear to FEMA whether the “Needs Assessment” referenced by the commenter is a form submitted to a private organization or another Federal agency. If the commenter's reference is to a form submitted to a Federal agency, different Federal aid programs have different statutory requirements for eligibility and an applicant who qualifies for one may not necessarily qualify for another. The eligibility standards for FEMA's IA Program are not the same as those for HUD's CDBG-DR program, and FEMA is not able to change statutory requirements via regulation. If the “Needs Assessment” form is submitted to a private organization, it generally would not be a part of FEMA's operations.
With respect to data sharing, FEMA recognizes that data sharing might make it easier to access information about disaster survivors. However, collecting, maintaining, and sharing data on a large scale presents challenges with respect to data security. The Stafford Act and other authorities allow FEMA to collect personal information to determine eligibility and administer FEMA disaster assistance as a result of an Emergency or a Presidentially declared disaster. FEMA cannot use other agencies' data for unintended purposes.
Finally, the commenter noted that some types of disaster assistance are administered by FEMA and others by HUD and that FEMA has an obligation to not duplicate assistance with any other Federal program, but stated that this is an issue of income discrimination for low-income survivors and also a barrier to finding stable housing in a housing market devastated by a disaster.
The commenter is correct that FEMA must not duplicate assistance provided by other Federal programs. With respect to taking over other assistance programs outside of the Stafford Act, doing so would require a change to the statutory provisions underlying those programs and FEMA cannot change statutory provisions via rulemaking. However, FEMA is committed to ongoing engagement and communication with our Federal partners to better address the needs of traditionally underserved communities and will continue looking for better ways to coordinate our program delivery. Additionally, FEMA already provides permanent repair dollars in addition to temporary housing funds to eligible homeowners.
As part of this IFR and in response to comments received on the agency's RFI, FEMA amends its regulations to allow FEMA to provide self-employed applicants with IHP financial assistance for necessary expenses and serious needs for occupational tools. Assistance will be based on a need to replace certain disaster-damaged items required for self-employment. This will include disaster-damaged tools and equipment, or other items required for a specific trade or profession, not provided or supplied by the employer. Depending on the item requested by the applicant and its purpose, subsistence items may be eligible for assistance under this authority. (See the
Other comments received on FEMA's RFI relating to public access to information, which may overlap with the Environmental Justice effects of this rule, are discussed above in the Equity RFI—IA Program Equity Responses to Comments section.
This rule meets applicable standards in Sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, Feb. 7, 1996), to minimize litigation, eliminate ambiguity, and reduce burden.
This rule will not create environmental health risks or safety risks for children under Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, Apr. 23, 1997).
Pursuant to Executive Order 11988, each Federal agency is required to provide leadership and take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for (1) acquiring, managing, and disposing of Federal lands and facilities; (2) providing federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. In carrying out these responsibilities, each agency must evaluate the potential effects of any actions it may take in a floodplain; to ensure that its planning programs and budget requests reflect consideration of flood hazards and floodplain management; and to prescribe procedures to implement the policies and requirements of the Executive order, to the extent permitted by law.
Before promulgating any regulation, an agency must determine whether the regulation will affect a floodplain(s), and if so, the agency must consider alternatives to avoid adverse effects and incompatible development in the floodplain(s). Where possible, an agency shall use natural systems, ecosystem processes, and nature-based approaches when developing alternatives for consideration. If the head of the agency finds that the only practicable alternative consistent with the law and with the policy set forth in Executive Order 11988 is to promulgate a regulation that affects a floodplain(s), the agency must, prior to promulgating the regulation, design or modify the regulation in order to minimize potential harm to or within the floodplain, consistent with the agency's floodplain management regulations and prepare and circulate a notice containing an explanation of why the action is located in the floodplain.
The requirements of Executive Order 11988 apply in the context of the provision of Federal financial assistance relating to, among other things, construction and property improvement activities. However, this rule will not have an effect on floodplains. The purpose of the rule is to update FEMA's
Pursuant to Executive Order 11990, each Federal agency must provide leadership and take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities for (1) acquiring, managing, and disposing of Federal lands and facilities; and (2) providing federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. Each agency, to the extent permitted by law, must avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use. In making this finding the head of the agency may take into account economic, environmental and other pertinent factors.
In carrying out the activities described in the Executive order, each agency must consider factors relevant to a proposal's effect on the survival and quality of the wetlands. Among these factors are: public health, safety, and welfare, including water supply, quality, recharge and discharge; pollution; flood and storm hazards; and sediment and erosion; maintenance of natural systems, including conservation and long-term productivity of existing flora and fauna, species and habitat diversity and stability, hydrologic utility, fish, wildlife, timber, and food and fiber resources; and other uses of wetlands in the public interest, including recreational, scientific, and cultural uses.
The requirements of Executive Order 11990 apply in the context of the provision of Federal financial assistance relating to, among other things, construction and property improvement activities. However, this rule will not have an effect on land use or wetlands. The purpose of the rule is to update FEMA's IHP regulations to reflect statutory changes that have already been implemented. The majority of the revisions in this rulemaking apply to the regulations for the IHP, which is a voluntary grant program that provides financial assistance and direct services to eligible individuals and households who have uninsured or underinsured necessary expenses and serious needs as a result of a Presidentially declared disaster. FEMA publishes this IFR amending its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. Specifically, the IFR increases eligibility for home repair assistance by amending the definitions and application of the terms safe, sanitary, and functional, allowing assistance for certain accessibility-related items, and amending its approach to evaluating insurance proceeds; allows for the re-opening of the applicant registration period when the President adds new counties to the major disaster declaration; simplifies the documentation requirements for continued temporary housing assistance; simplifies the appeals process; simplifies the process to request approval for a late registration; removes the requirement to apply for a Small Business Administration loan as a condition of eligibility for ONA; and establishes additional eligible assistance under ONA for serious needs, displacement, disaster-damaged computing devices and essential tools for self-employed individuals. FEMA also makes revisions to reflect changes to statutory authority that have not yet been implemented in regulation, to include provisions for utility and security deposit payments, lease and repair of multifamily rental housing, child care assistance, maximum assistance limits, and waiver authority.
The National Historic Preservation Act (NHPA) (54 U.S.C. 300101, formerly 16 U.S.C. 470) was enacted in 1966, with various amendments throughout the years. Section 106 of the NHPA (54 U.S.C. 306108) requires Federal agencies to take into account the effect of a proposed Federal or Federally assisted undertaking on any historic property. Among other requirements, where there is the potential for the undertaking (or project) to affect historic properties, the NHPA mandates a consultation process in the early stages of project planning which must be completed prior to the approval of expenditure of the Federal funds. Subpart B of 36 CFR part 800 lays out a four-step Section 106 process to fulfill this obligation: (1) Initiate the process (800.3); (2) identify historic properties (800.4); (3) assess adverse effects (800.5); (4) resolve adverse effects (800.6). If, however, the agency determines that the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency has no further obligations under the NHPA. 36 CFR 800.3(a)(1). Based on over 20 years of practice, since section 206.110(m) was published, FEMA has determined that the proposed undertaking, excluding the stated exceptions, does not have the potential to cause effects on historic properties. Therefore, FEMA changes the language in section 206.110(m) to align it with the applicable statutory and regulatory language (
The purpose of the rule is to amend its IA regulations to increase equity and ease of entry to the IA Program and to update FEMA's IHP regulations to reflect statutory changes that have already been implemented. The majority of the revisions in this rulemaking apply to the regulations for the IHP, which is a voluntary grant program that provides financial assistance and direct services to eligible individuals and households who have uninsured or underinsured necessary expenses and serious needs as a result of a Presidentially-declared disaster. FEMA publishes this IFR amending its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. Specifically, the IFR increases eligibility for home repair assistance by amending the definitions and application of the terms safe, sanitary, and functional, allowing assistance for certain accessibility-related items, and amending its approach to evaluating insurance proceeds; allows for the re-opening of the applicant registration period when the President adds new counties to the major disaster declaration; simplifies the documentation requirements for continued temporary housing assistance; simplifies the appeals process; simplifies the process to request approval for a late registration; removes the requirement to apply for a Small Business Administration loan as a condition of eligibility for ONA; and establishes additional eligible assistance under ONA for serious needs, displacement, disaster-damaged computing devices and essential tools for self-employed individuals. FEMA also makes revisions to reflect changes to statutory authority that have not yet been implemented in regulation, to include provisions for utility and security deposit payments, lease and repair of multifamily rental housing, child care assistance, maximum assistance limits, and waiver authority.
Pursuant to Section 106 of the NHPA and its implementing regulations at 36 CFR part 800, FEMA has determined that this rule does not have the potential to cause effects to historic properties and in accordance with 36 CFR 800.3(a)(1), FEMA has no further obligations under Section 106.
The Endangered Species Act (ESA) mandates that Federal agencies determine whether their proposed actions may affect listed species and/or their designated critical habitat (critical habitat has been designated for some, but not all listed species). Without authorization or exemption from Federal resource agencies, it is unlawful for any person, whether government employee or private citizen, to take listed species.
To comply with Section 7(a)(2) of the ESA, 16 U.S.C. 1536, for every action that FEMA proposes to carry out, fund, or authorize, FEMA must first determine if listed species and habitat are present in the action area. If species are present in the action area, then FEMA must make one of the following determinations with respect to the effect of the proposed action on listed species and critical habitat: (1) No Effect (NE); (2) may affect, but is not likely to adversely affect (NLAA); or (3) may affect and is likely to adversely affect (LAA).
The purpose of the rule is to update FEMA's IHP regulations to reflect statutory changes that have already been implemented. The majority of the revisions in this rulemaking apply to the regulations for the IHP, which is a voluntary grant program that provides financial assistance and direct services to eligible individuals and households who have uninsured or underinsured necessary expenses and serious needs as a result of a Presidentially declared disaster. FEMA publishes this IFR amending its regulations governing the Individual Assistance program to increase equity by simplifying processes, removing barriers to entry, and increasing eligibility for certain types of assistance under the program. Specifically, the IFR increases eligibility for home repair assistance by amending the definitions and application of the terms safe, sanitary, and functional, allowing assistance for certain accessibility-related items, and amending its approach to evaluating insurance proceeds; allows for the re-opening of the applicant registration period when the President adds new counties to the major disaster declaration; simplifies the documentation requirements for continued temporary housing assistance; simplifies the appeals process; simplifies the process to request approval for a late registration; removes the requirement to apply for a Small Business Administration loan as a condition of eligibility for ONA; and establishes additional eligible assistance under ONA for serious needs, displacement, disaster-damaged computing devices and essential tools for self-employed individuals. FEMA also makes revisions to reflect changes to statutory authority that have not yet been implemented in regulation, to include provisions for utility and security deposit payments, lease and repair of multifamily rental housing, child care assistance, maximum assistance limits, and waiver authority.
This rule has been evaluated by FEMA and due to the administrative nature, FEMA has determined the rule does not have the potential to affect Federally listed species or designated critical habitat. As such, a “No Effect” determination has been made for these activities. Per the ESA regulations, notification to, and consultation with, the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service are not required for activities with a “No Effect” determination.
Under the Congressional Review of Agency Rulemaking Act (CRA), 5 U.S.C. 801-808, before a rule can take effect, the Federal agency promulgating the rule must submit to Congress and to the GAO a copy of the rule; a concise general statement relating to the rule, including whether it is a major rule; the proposed effective date of the rule; a copy of any cost-benefit analysis; descriptions of the agency's actions under the RFA and the Unfunded Mandates Reform Act; and any other information or statements required by relevant Executive orders.
FEMA has submitted this interim final rule to the Congress and to GAO pursuant to the CRA. OMB has determined that this rule is a “major rule” within the meaning of the CRA.
Administrative practice and procedure, Coastal zone, Community facilities, Disaster assistance, Fire prevention, Grant programs—housing and community development, Housing, Insurance, Intergovernmental relations, Loan programs—housing and community development, Natural resources, Penalties, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Federal Emergency Management Agency amends 44 CFR part 206 as follows:
Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act of 2002, 6 U.S.C. 101
The additions and revisions read as follows:
(a)
(b)
(1) The maximum amount of financial assistance excludes rental assistance under § 206.117(b)(1)(i) and lodging expense reimbursement under § 206.117(b)(1)(i).
(2) The maximum amount of financial assistance excludes expenses to repair or replace eligible damaged accessibility-related real property improvements and personal property for individuals with disabilities.
(c)
(d)
(e)
(h)
(3) Applicants cannot use their insurance because there is no housing on the private market.
(i)
(2) Federal and State cost shares for “Other Needs” assistance under the Stafford Act, 42 U.S.C. 5174(e) and (f), are as follows:
(i) The Federal share is 75 percent; and
(ii) The non-Federal share is 25 percent and must be paid from funds made available by the State. If the State does not provide the non-Federal share to FEMA before FEMA begins to provide assistance to individuals and households under the Stafford Act, 42 U.S.C. 5174(e), FEMA will still process applications. The State will then be obliged to reimburse FEMA for the non-Federal cost share of such assistance on a monthly basis. If the State does not provide such reimbursement on a monthly basis, then FEMA will issue a billing notice to the State on a monthly basis for the duration of the program. FEMA will charge interest, penalties, and administrative costs on delinquent billing notices in accordance with the Debt Collection Improvement Act. Cost shared funds, interest, penalties and administrative costs owed to FEMA through delinquent billing notices may be offset from other FEMA disaster assistance programs (
(j) * * *
(2) Under the Stafford Act, 42 U.S.C. 5174(f)(2), FEMA must share applicant information with States in order for the States to make available any additional State and local disaster assistance to individuals and households.
(ii) States receiving such applicant information must not further disclose the information to other entities, and must not use it for purposes other than providing additional State or local disaster assistance to individuals and households.
(k) * * *
(2) Individuals or households that are located in a special flood hazard area may not receive Federal Assistance for National Flood Insurance Program (NFIP)—insurable real and/or personal property, damaged by a flood, unless the community in which the property is located is participating in the NFIP (See 44 CFR 59.1), or the exception in 42 U.S.C. 4105(d) applies. * * *
(3)
(A) If the applicant is a homeowner, flood insurance coverage must be maintained at the address of the flood-
(m)
(n)
The additions and revisions to read as follows:
(3)
(1) The legal owner with verifiable documentation; or
(2) A person who does not hold formal title to the residence and pays no rent, but can produce verifiable documentation demonstrative of legal responsibility including tax payment receipts; receipts for major repairs, maintenance, or improvements of the residence; court documents, a letter from a public official, or, for mobile home or travel trailer owners residing in a commercial park, a letter from the mobile home park owner or manager; or
(3) A person who has verifiable documentation of lifetime occupancy rights with formal title vested in another.
The additions and revisions read as follows:
(b)
(c)
(d)
The addition and revisions read as follows:
(a)
(1) When the individual or household has incurred a disaster-related necessary expense and serious need in the State in which the disaster has been declared, without regard to their residency in that State;
(4) In a situation where the applicant has insurance, but the applicant cannot use their insurance because housing is not available on the private market;
(5) In a situation where the applicant has insurance, when the insured individual or household has accepted all assistance from other sources for which he, she, or they are eligible, including insurance, and that assistance and insurance is insufficient to cover the necessary expense and serious need;
(7) With respect to housing assistance, if the primary residence has been destroyed, is uninhabitable, or is inaccessible;
(8) With respect to housing assistance, if a renter's primary residence is no longer available as a result of the disaster; and
(9) With respect to home repair for accessibility-related items, if an applicant meets the following conditions:
(i) The applicant is either an individual with a disability as defined in 42 U.S.C. 5122 whose disability existed prior to the disaster and whose primary residence was damaged by the disaster, or an individual with a disability as defined in 42 U.S.C. 5122 whose disability was caused by the disaster and whose primary residence was damaged by the disaster;
(ii) The real property component is necessary to meet the accessibility-related need of the household; and
(iii) The real property component is not covered by insurance or any other source.
(b) * * *
(1) For housing or displacement assistance, to individuals or households who are displaced from other than their pre-disaster primary residence;
(2) For temporary housing or displacement assistance, to individuals or households who have adequate rent-free housing accommodations;
(3) For temporary housing or displacement assistance, to individuals or households who own a secondary or vacation residence within reasonable commuting distance to the disaster area, or who own available rental property that meets their temporary housing needs;
(4) For temporary housing or displacement assistance to individuals or households who evacuated the residence in response to official warnings solely as a precautionary measure and are able to return to and safely occupy the residence immediately after the incident;
(5) For housing assistance, for improvements or additions to the pre-disaster condition of property, except for the following:
(i) Improvements or additions required to make repairs that comply with local and State ordinances;
(ii) Eligible hazard mitigation measures; or
(iii) Accessibility-related items for individuals with disabilities, consistent with paragraph (a)(9) of this section;
(9) For business losses, including farm businesses; or
(10) For any items not otherwise authorized by §§ 206.117 and 206.119.
(a)
(b)
(1) FEMA may periodically recertify all displaced applicants who received initial rental assistance and request continued rental assistance. All displaced applicants requesting continued rental assistance must take the following actions at certain points throughout the recertification process:
(i) Submit rent receipts to show that they have exhausted or will exhaust previously provided funds;
(ii) Provide documentation demonstrating they lack the financial ability to pay their post-disaster housing costs and have a continued need for rental assistance;
(iii) Establish a realistic permanent housing plan; and
(iv) Provide documentation showing that they are making efforts to obtain permanent housing.
(2) FEMA expects that pre-disaster renters will use their initial rental assistance to obtain permanent housing. However, FEMA may provide continued rental assistance to pre-disaster renters with a continuing disaster-related housing need.
(c)
(1) Establish a realistic permanent housing plan; and
(2) Provide documentation showing that they are making efforts to obtain permanent housing throughout the recertification process.
(d)
(1) If FEMA requires more information to process an applicant's initial request for assistance, it may request additional information.
(2) After the initial award of assistance, applicants requesting additional assistance for repairs, housing replacement, lodging expense reimbursement, personal property, transportation, child care, medical, dental, funeral, moving and storage, or other necessary expenses and serious needs may submit an appeal as outlined in § 206.115 and will be required to submit information and/or verifiable documentation established via guidance identifying the additional need.
The revisions read as follows:
(a) Under the provisions of the Stafford Act, 42 U.S.C. 5189a, applicants for assistance under this subpart may appeal any determination of eligibility for assistance made under this subpart. * * *
(b) Appeals must include a written explanation or verifiable documentation for the appeal and meet the requirements of § 206.117, as applicable. See §§ 206.117(b)(2)(vi), 206.117(b)(3)(iv), and 206.117(b)(4)(iii). If someone other than the applicant files the appeal, then the applicant must also submit a signed statement giving that person authority to represent them. If a written explanation is submitted, it must be signed by the applicant or a person the applicant designates to represent them.
(c) Applicants must appeal to FEMA for decisions made under this subpart, unless FEMA has made a grant to the State to provide assistance to individuals and households under § 206.120(a), State administration of other needs assistance; then the applicant must appeal to the State.
(d) * * * If someone other than the applicant is submitting the request, then the applicant must also submit a signed statement giving that person authority to represent them.
(e) FEMA or the appropriate State official will review the original decision after receiving the appeal. FEMA or the State, as appropriate, will give the appellant a written notice of the disposition of the appeal and a reason for the determination within 90 days of receiving the appeal. The decision of the FEMA or State appellate authority is final.
The additions and revisions read as follows:
(a) * * *
“
“
(b)
(A) FEMA will include all members of a pre-disaster household in a single registration and will provide assistance for one temporary housing residence, unless FEMA determines that the size or nature of the household requires that we provide assistance for more than one residence.
(B) FEMA will base the amount of assistance on the current fair market rent for existing rental units. FEMA will further base the applicable rate on the location of the rental unit and the number of bedrooms the household requires, as determined by FEMA.
(C) Rental assistance may include the payment of the cost of utilities, excluding telephone, cable, television, and internet service.
(D) Rental assistance may include the payment of the cost of security deposits, not to exceed an amount equal to the fair market rent for one month, as determined under paragraph (b)(1)(i)(B) of this section.
(E) Applicants that receive displacement assistance under § 206.119(b)(2) must request rental assistance if their disaster-caused temporary housing needs continue once displacement assistance is exhausted.
(ii)
(B) FEMA will include all members of a pre-disaster household in a single application and will provide assistance for one temporary housing unit, unless FEMA determines that the size or nature of the household requires that we provide assistance for more than one temporary housing unit.
(C) Any site upon which a FEMA-provided temporary housing unit is placed must comply with applicable State and local codes and ordinances, as well as 44 CFR part 9, Floodplain Management and Protection of Wetlands, and all other applicable environmental and historic preservation laws, regulations, Executive orders, and agency policy.
(E) FEMA-provided or funded temporary housing units may be placed in the following locations:
(
(
(
(
(F) If FEMA determines it would be a cost-effective alternative to other temporary housing options, FEMA may enter into lease agreements with owners of multifamily rental housing properties to house displaced applicants eligible for assistance under this subpart.
(
(
(G) After the end of the 18-month period of assistance, FEMA may begin to charge up to the fair market rent for each temporary housing unit provided. * * *
(H) * * *
(
(I) * * * This notice will specify the reasons for termination of assistance and occupancy, the date of termination, the procedure for appealing the determination, and the occupant's liability for such additional charges as FEMA deems appropriate after the termination date, including fair market rent for the unit.
(2)
(A) The eligibility criteria in § 206.113 are met;
(B) FEMA determines the dwelling was damaged by the disaster; and,
(C) The damage is not covered by insurance.
(ii) FEMA may provide financial assistance for the repair of the disaster damaged dwelling to a safe and sanitary living or functioning condition including:
(H) Eligible hazard mitigation measures.
(iii) FEMA financial assistance for the repair of disaster damage will be limited to repairs of a quality necessary for a safe and sanitary living or functioning condition. In some instances, when the extent of the damage is unclear, FEMA may provide assistance for the average cost of a licensed technician's professional assessment. FEMA may provide for the replacement of a component if repair is not feasible.
(iv) Eligible individuals or households may receive up to the maximum amount of assistance (See § 206.110(b)) to repair damage to their primary residence irrespective of other financial resources, except insurance proceeds.
(vi) If the applicant disputes a determination made by FEMA regarding eligibility for repair assistance, the applicant may appeal that determination pursuant to the procedures in § 206.115. In addition to the requirements in § 206.115, the applicant must provide proof that the component meets the requirements of paragraph (b)(2)(i) of this section. If the applicant disputes the amount of repair assistance awarded, the applicant must also provide justification for the amount sought.
(3)
(A) The eligibility criteria in § 206.113 are met;
(B) The residence was destroyed by the disaster; and
(C) The damage to the residence is not covered by insurance.
(ii) If replacement assistance is granted, the applicant may either use the maximum amount of assistance (See § 206.110(b)) to replace the dwelling in its entirety, or may use the assistance toward the cost of acquiring a new permanent residence.
(iii) Housing replacement assistance will be based on the average replacement cost established by FEMA for the type of residence destroyed, or the statutory maximum (See § 206.110(b)), whichever is less.
(iv) If the applicant disputes a determination made by FEMA regarding eligibility for replacement assistance, the applicant may appeal that determination pursuant to the procedures in § 206.115. In addition to the requirements in § 206.115, the applicant must provide proof that repair is not feasible, or will not ensure the safety or health of the occupant. If the applicant disputes the amount of replacement assistance awarded, the applicant must also provide justification for the amount sought.
(4) * * *
(i) * * *
(A) The eligibility criteria in § 206.113 are met;
(E) The residence is in a location where alternative housing resources are not available and the types of financial
(iii) If the applicant disputes a determination made by FEMA regarding eligibility for construction assistance, the applicant may appeal that determination pursuant to the procedures in § 206.115. In addition to the requirements in § 206.115, the applicant must provide proof that the property is in a location where alternative housing resources are not available. * * *
(a) FEMA may sell temporary housing units purchased under § 206.117(b)(1)(ii), Temporary housing, direct assistance, as follows:
(1)
(ii) FEMA may approve adjustments to the sales price when selling a temporary housing unit to the occupant if the occupant is unable to pay the fair market value of the temporary housing unit and when doing so is in the best interest of the occupant and FEMA.
(iii) FEMA may sell a temporary housing unit to the occupant only on the condition that the purchaser agrees to obtain and maintain hazard insurance, as well as flood insurance on the temporary housing unit if it is or will be in a designated Special Flood Hazard Area.
(2)
(A) Comply with the nondiscrimination provisions of the Stafford Act, 42 U.S.C. 5151; and
(B) Obtain and maintain hazard insurance on the temporary housing unit, as well as flood insurance if the housing unit is or will be in a designated Special Flood Hazard Area.
(ii) FEMA may also sell temporary housing units at a fair market value to any other person.
(b) A temporary housing unit will be sold “as is, where is”, except for repairs FEMA deems necessary to protect health or safety, which are to be completed before the sale. There will be no implied warranties. In addition, FEMA will inform the purchaser that they may have to bring the installation of the temporary housing unit up to codes and standards that are applicable at the proposed site.
(a)
(b)
(2)
(3)
(i) Medical service costs;
(ii) Dental service costs;
(iii) Repair or replacement of medical or dental equipment;
(iv) Loss or injury of a service animal; and
(v) Costs for prescription medicines related to eligible medical or dental services, or which need to be replaced due to the disaster.
(4)
(i) Standard child care service fees, including personal assistance services that support activities of daily living for children with disabilities; and
(ii) Registration and health inventory fees for applicants who require a new child care provider.
(5)
(i) Funeral services;
(ii) Burial or cremation; and
(iii) Other related funeral expenses.
(6)
(i) Clothing;
(ii) Household items, furnishings or appliances;
(iii) Computing devices;
(iv) Essential tools, specialized or protective clothing, computing devices, and equipment required for employment;
(v) Computing devices, uniforms, schoolbooks and supplies required for educational purposes; and
(vi) Cleaning or sanitizing any eligible personal property item.
(7)
(i) Repairing or replacing vehicles;
(ii) Public transportation; and
(iii) Other transportation related costs or services.
(8)
(i) Moving and storing personal property to avoid additional disaster damage;
(ii) Storage of personal property while disaster-related repairs are being made to the primary residence; and
(iii) Return of the personal property to the individual or household's primary residence.
(9)
(i) The premium for the GFIP is a necessary expense within the meaning of this section. FEMA or the State must withhold this portion of the Other Needs award and provide it to the NFIP
(ii) FEMA or the State IHP staff must provide the NFIP with records of individuals who received assistance for flood-insurable losses within a SFHA and are to be insured through the GFIP. Records of applicants to be insured must be accompanied by payments to cover the premium amounts for each applicant for the 3-year policy term. The NFIP will then issue a Certificate of Flood Insurance to each applicant. Flood insurance coverage becomes effective on the 30th day following the receipt of records of GFIP insureds and their premium payments from the State or FEMA, and such coverage terminates 36 months from the inception date of the GFIP, which is 60 days from the date of the disaster declaration.
(iii) Insured applicants would not be covered if they are determined to be ineligible for coverage based on a number of exclusions established by the NFIP. Therefore, once applicants/policyholders receive the Certificate of Flood Insurance that contains a list of the policy exclusions, they should review that list to see if they are ineligible for coverage. Those applicants who fail to do this may find that their property is, in fact, not covered by the insurance policy when the next flooding incident occurs and they file for losses. Once the applicants find that their damaged buildings, contents, or both, are ineligible for coverage, they should notify the NFIP in writing in order to have their names removed from the GFIP, and to have the flood insurance maintenance requirement expunged from the data-tracking system.
(10)
The addition and revisions read as follows.
(a)
(b) * * *
(1) Federal agencies providing disaster assistance under the Act or under their own authorities triggered by the Act, must cooperate to prevent and rectify duplication of benefits, according to the general policy guidance of the Federal Emergency Management Agency. The agencies must establish appropriate agency policies and procedures to prevent duplication of benefits.
(d) * * *
(2) * * *
(ii) Housing assistance pursuant to the Stafford Act, 42 U.S.C. 5174;
(iii) Other Needs assistance, pursuant to the Stafford Act, 42 U.S.C. 5174;
(iv) Small Business Administration and Department of Agriculture disaster loans;
(4) If following the delivery sequence concept would adversely affect the timely receipt of essential assistance by an individual or household, an agency may offer assistance which is the primary responsibility of another agency. * * *
(ii) In the case where the individual or household has refused assistance from Agency A, Agency A must notify Agency B that it must recover assistance previously provided.
(e) * * *
(1) * * *
(i) In making an eligibility determination, FEMA, in the case of federally operated programs, or the State, in the case of State operated programs, must determine whether assistance is the primary responsibility of another agency to provide, according to the delivery sequence; and determine whether that primary response agency can provide assistance in a timely way.
(2)
(iii) * * * Where flood insurance is involved, FEMA must coordinate with the Federal Insurance Administration. * * *
(3)
(4)
(i) If the duplicating agency followed its procedures and was successful in correcting the duplication, FEMA will take no further action. If the agency was not successful in correcting the duplication, and FEMA is satisfied that the duplicating agency followed its remedial procedures, no further action will be taken.
(ii) If the duplicating agency did not follow its duplication of benefits procedures, or FEMA is not satisfied that the procedures were followed in an acceptable manner, then FEMA must provide an opportunity for the agency to take the required corrective action. If the agency cannot fulfill its responsibilities for remedial action, FEMA must notify the recipient of the excess assistance, and after examining the debt, then as appropriate, take those recovery actions in conjunction with agency representatives for each identified case in the random sample (or larger universe, at FEMA's discretion).
(5)
(f)
(g)
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) adopts rules pursuant to section 60506 of the Infrastructure Investment and Jobs Act (Infrastructure Act) that establish a framework to facilitate equal access to broadband internet access service by preventing digital discrimination of access. These rules address policies and practices that impede equal access to broadband, while taking into account issues of technical and economic feasibility that pose serious challenges to full achievement of the equal access objective. The rules constitute an effective, balanced means to accomplish Congress's objective of ensuring that historically unserved and underserved communities throughout the Nation have equal opportunity to receive high-speed broadband service comparable to that received by others, without discrimination as to the terms and conditions on which that service is received.
Effective March 22, 2024, except for the amendment to 47 CFR 1.717 (amendatory instruction 5), which is delayed indefinitely. FCC will publish a document in the
Wireline Competition Bureau, Competition Policy Division, Aurélie Mathieu, at (202) 418-2194,
This is a summary of the Commission's Report and Order (
This document may contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. This document will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding.
The Commission sent a copy of the
1. In this
2. The actions taken today are summarized below. Digital Discrimination of Access Defined. In furtherance of our goal to facilitate equal access to broadband internet access service, we adopt the following definition of “digital discrimination of access”: “policies or practices, not justified by genuine issues of technical or economic feasibility, that differentially impact consumers' access to broadband internet access service based on their income level, race, ethnicity, color, religion or national origin, or are intended to have such differential impact.” Under the rules we adopt today, we will investigate conduct alleged to be motivated by discriminatory intent, as well as conduct alleged to have discriminatory effect, based on income level, race, ethnicity, color, religion, or national origin. Consistent with the definition of “equal access” in the statute, we find that differentiation as to any available quality of service metric for broadband service may provide a basis for liability under these rules, absent sufficient justification.
3. Technical and Economic Feasibility. Consistent with Congress's directive, our definition of digital discrimination of access fully takes into account “issues of technical and economic feasibility,” constituting impediments to full achievement of the equal access goal of the statute. We define “technically feasible” to mean “reasonably achievable as evidenced by prior success by covered entities under similar circumstances or demonstrated technological advances clearly indicating that the policy or practice in question may reasonably be adopted, implemented, and utilized.” We similarly define “economically feasible” to mean “reasonably achievable as evidenced by prior success by covered entities under similar circumstances or demonstrated new economic conditions clearly indicating that the policy or practice in question may reasonably be adopted, implemented, and utilized.”
4. Consumers Afforded Protection from Digital Discrimination, and
5. We adopt today the same definition of “broadband internet access service” that appears in our rules at 47 CFR 8.1(b). In accordance with section 60506, the rules we adopt today shall apply to all policies and practices that affect a consumer's ability to have equal access to broadband internet access service, including but not limited to deployment, network upgrades, and maintenance. Covered elements of service include both technical and non-technical elements of service that may affect a consumer's ability to receive and effectively utilize the service.
6. Enforcement. We adopt rules that allow for enforcement of our prohibition against digital discrimination of access through self-initiated Commission investigations and revise our informal complaint process to accept complaints alleging digital discrimination of access, including offering parties voluntary mediation overseen by Commission staff when appropriate. Possible violations will be investigated by Commission staff using our standard investigative toolkit, and all penalties and remedies will be available when we determine that our rules have been violated. The Commission will consider utilizing consent decrees when appropriate. We decline, at this time, to create an additional process for the filing and adjudication of formal complaints akin to section 208 of the Communications Act.
7. Consumer Complaints. Consistent with Congress's directive, we revise our informal consumer complaint process to accept complaints from consumers or other members of the public that relate to digital discrimination of access by establishing a dedicated pathway for digital discrimination of access complaints including from organizations, and collecting voluntary demographic information from complainants.
8. State and Local Model Policies and Best Practices. We adopt the Communications Equity and Diversity Council's recommendations that propose model policies and practices for states and localities to address digital discrimination of access. We emphasize that these model policies and practices do not foreclose adoption by states and localities of additional measures to ensure equal access to broadband service in their communities.
9. Section 60506 of Division F, Title V of the Infrastructure Act is entitled “Digital Discrimination.” This provision supports extensive broadband expansion programs in the Infrastructure Act and requires that the Commission adopt rules to facilitate equal access to broadband internet service. Section 60506(b) reads: “Not later than 2 years after November 15, 2021, the Commission shall adopt final rules to facilitate equal access to broadband internet access service, taking into account the issues of technical and economic feasibility presented by that objective, including—(1) preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin; and (2) identifying necessary steps for the Commission to take to eliminate discrimination described in paragraph (1).”
10. The Commission's implementation of section 60506 builds on a robust history of Commission regulatory action premised on nondiscrimination and universal service, which, in turn, furthers the goal of broadband internet access for all and addresses the digital divide.
11. At the core of the Commission's commitment to broadband internet access for all is section 1 of the Communications Act of 1934, as amended, which states the agency's purpose “to make available, so far as possible,” a “rapid, efficient, Nation-wide” wire and radio communication service with adequate facilities “to all people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex.” Nondiscrimination and universal service are cornerstone principles and drive agency policies to achieve the broadest possible consumer access to communications services. In the Telecommunications Act of 1996 (1996 Act), Congress expanded the traditional goal of universal service to include increased access to telecommunications and advanced services, such as broadband internet access service, for all consumers at just, reasonable, and affordable rates. The 1996 Act established principles for universal service that focus on increasing access for consumers living in rural and insular areas, and for low-income consumers. Section 706 of the 1996 Act requires the Commission to report annually on whether broadband “is being deployed to all Americans in a reasonable and timely fashion.”
12. In 2009, Congress directed the Commission to develop a National Broadband Plan to ensure every American has “access to broadband capability.” The Commission released the National Broadband Plan in March 2010, highlighting ways to “[r]eform current universal service mechanisms to support deployment of broadband and voice in high-cost areas; and ensure that low-income Americans can afford broadband; and in addition, support efforts to boost adoption and utilization.”
13. The Commission has long used its Universal Service funding programs to further consumer access to broadband and bridge the digital divide. These funding programs, which preceded the Infrastructure Act, have historically helped to deliver broadband services to low-income consumers and to unserved and underserved communities in rural and insular areas. Further, these programs provide support in various ways, including: offering to low-income consumers discounts on voice service and/or broadband internet access service; providing funding to eligible schools and libraries for affordable broadband services to help connect students and members of local communities; providing funding for health care providers to ensure that patients have access to broadband enabled healthcare services; and offering subsidies to providers to build out, deploy, and maintain networks that provide voice and broadband service in high-cost areas.
14. These Commission actions help to ameliorate a digital divide that has underpinnings in the country's historical segregation and redlining practices in housing. Relying on historical research, data, and surveys, numerous commenters correlate inequities in broadband access to historically segregated housing patterns and discriminatory housing practices. The record in this proceeding reflects that the digital divide significantly tracks housing redlining that came into existence under the National Housing Act of 1934, when the Federal Housing
15. The Commission regularly reports on the number of Americans who lack access to broadband internet access service. While the Commission reported in 2021 that 14.5 million Americans lack access to broadband, an independent study suggested that the actual number was as high as 42 million. Further, Microsoft's data usage, as of 2020, suggested that as many as 120.4 million people in the United States did not
16. The uncomfortable reality is that too many households in the United States lack equal access to broadband. Lack of equal access to broadband is not limited to historically redlined urban communities, but also encompasses and acutely affects both rural and urban low-income communities, other rural communities, and Tribal areas.
17. The global COVID-19 pandemic compounded the problem of unequal access to broadband internet access service in the United States. The digital divide became more stark as shutdowns caused a heightened need for high-quality broadband internet access service to meet basic needs such as working from home, distance learning, accessing public benefits and services, telehealth, job-hunting, remote worship activities, remote family and social connections, and other daily activities. In 2020, a Pew Research Center survey found that nearly half of adults surveyed stated that internet access was essential during the pandemic. And in that same survey, Pew found that at that time, “[s]ome 43% of lower-income parents with children whose schools shut down say it is very or somewhat likely their children will have to do schoolwork on their cellphones; 40% report the same likelihood of their child having to use public Wi-Fi to finish schoolwork because there is not a reliable internet connection at home.” Subsequently, in 2021, Pew surveys found that 57% of households making less than $30,000 had home broadband, compared to 93% of households making $100,000 or more, and additionally, white survey participants were more likely than black and Hispanic survey participants to report having home broadband access.
18. Moreover, based on data contributed by civil society organizations, educational institutions, and private sector companies, among households with broadband access, lower-income communities were observed to have slower effective speeds. For example, broadband internet access service has been found to be 21% lower in Tribal areas, compared to neighboring non-Tribal areas, and download speeds were lower. Overall, research and data indicate that during the pandemic, entrenched disparities in broadband internet access service in low-income, rural, and minority households adversely affected all aspects of daily life, including accessing education, seeking housing and employment online, accessing telehealth medical care, and applying for services. For example, as the pandemic caused the vast majority of K-12 students across the country to receive online instruction, 14% of parents had to access public Wi-Fi because there was no reliable connection to the home. This figure was 4% in high-income households and 23% in lower income households.
19. On November 15, 2021, in the midst of the pandemic, Congress enacted the Infrastructure Act providing $65 billion for broadband programs for the purpose of expanding access and affordability to under-served and unserved areas and addressing the “digital divide.” During House debates on the Infrastructure Act, House Majority Whip James Clyburn (D-SC) testified about the harm caused by the digital divide and the need to address inequities in access to high-speed broadband internet service. Division F of the Infrastructure Act is entitled “Broadband.” In the legislation, Congress found: (1) Access to affordable, reliable, high-speed broadband is essential to full participation in modern life in the United States; (2) The persistent “digital divide” in the United States is a barrier to the economic competitiveness of the United States and equitable distribution of essential public services, including health care and education; (3) The digital divide disproportionately affects communities of color, lower-income areas, and rural areas, and the benefits of broadband should be broadly enjoyed by all; and (4) In many communities across the country, increased competition among broadband providers has the potential to offer consumers more affordable, high quality options for broadband service.
20. The 2019 novel coronavirus pandemic has underscored the critical importance of affordable, high speed broadband for individuals, families, and communities to be able to work, learn, and connect remotely while supporting social distancing.
21. The Infrastructure Act's funding measures are intended to promote access to broadband internet access service and reduce the digital divide. Under Title I through Title V of Division F of the Act, Congress authorized funding for expansive broadband access, affordability, and digital literacy programs. These programs fall into seven major program areas: the Broadband Equity, Access, and Deployment Program ($42.45 billion), the Affordable Connectivity Program ($14.2 billion) Digital Equity Planning, Capacity and Competitive Grants ($2.75 billion), the Tribal Broadband Connectivity Program ($2 billion), Rural Utilities Service at the Department of Agriculture ($2 billion), the Middle Mile Grant Program ($1 billion), and Private Activity Bonds (approximately $600 million).
22. In addition to providing funding for broadband deployment in unserved and underserved communities, the Infrastructure Act sets out specified measures for the Commission in service of the goal that “every American ha[ve] access to reliable high-speed internet.” Title I directs the Commission to create a broadband funding map, which is an “online mapping tool to provide a
23. Most relevant here, section 60506 of the Infrastructure Act sets out further measures to support the fundamental objective of ensuring equal access to broadband. The Statement of Policy provides that “insofar as technically and economically feasible” the Commission “should take steps to ensure that all people of the United States benefit from equal access to broadband internet access service.” In addition to mandating the adoption of rules to facilitate equal access by “preventing digital discrimination of access” on specified bases and identifying necessary steps to eliminate such discrimination, matters we discuss in great depth throughout this
24. The Commission's most recent efforts to get marginalized communities connected to high-quality broadband internet access service include administration of well-targeted subsidy programs. The Affordable Connectivity Program and its predecessor, the Emergency Broadband Benefit (EBB) Program, have been instrumental in helping low-income households afford broadband internet. Under the program, eligible low-income households can receive a discount of $30 per month toward internet service and up to $75 per month for eligible households on qualifying Tribal lands. Eligible households can also receive a one-time discount of up to $100 to purchase a laptop, desktop computer, or tablet from participating providers. As of August 2023, more than 20 million households in the United States have enrolled in the program.
25. During the pandemic, the Commission expedited adoption of the Emergency Connectivity Fund (ECF) and COVID-19 Telehealth Programs to provide funding to eligible schools and libraries for broadband services and connected devices for use by students, school staff, or library patrons and health care providers for telecommunications services, information services, and connected devices.
26. On June 29, 2021, the Commission chartered the Communications Equity and Diversity Council (CEDC), a federal advisory committee created for the purpose of presenting recommendations to the Commission on “advancing equity in the provision of and access to digital communication services and products for all people of the United States, without discrimination on the basis of race, color, religion, national origin, sex, or disability.” In chartering the CEDC, the Commission renewed the charter of the Advisory Committee on Diversity and Digital Empowerment under a new name. Within the CEDC is the Digital Empowerment and Inclusion Working Group that was tasked with recommending “model policies and best practices that can be adopted by States and localities to ensure that broadband internet access service providers do not engage in digital discrimination” as required by section 60506(d).
27. Since its formation, the CEDC and its working groups have taken significant steps towards satisfying its mission. On November 7, 2022, the CEDC submitted Recommendations and Best Practices to Prevent Digital Discrimination and Promote Digital Equity to the Commission. The CEDC found that “COVID-19 exacerbated economic disparities for those who did not already have access to broadband services, especially in communities of color, where a lack of broadband access can reinforce systemic inequality. The CEDC further found that data supported the conclusion that minority status and income correlated with broadband access. To that end, the CEDC compiled findings from its three CEDC Working Groups and proposed recommendations for, among other things, model policies and best practices for states and localities that address discrimination in broadband access.
28. Moreover, in furtherance of its mission, on March 23, 2023, the CEDC convened a range of community organizations, broadband internet access providers, federal agencies with emergency broadband funding, and state agencies to assess lessons learned concerning programs that provided broadband connectivity to communities during the pandemic. The CEDC released recommendations on this topic on June 15, 2023.
29. Force to Prevent Digital Discrimination (Task Force). The Task Force is charged with coordinating the development of rules and policies to combat digital discrimination and promote equal access to broadband, overseeing the development of model state and local policies, and improving how the Commission seeks feedback from persons facing digital discrimination in their communities.
30. The Task Force has engaged in significant outreach nationwide to understand the depth of problems in accessing broadband, particularly as experienced by persons in historically excluded, low-income, rural, and marginalized communities. On January 25, 2023, the Task Force released a Broadband Access Experience Form for consumers to state their experience with accessing broadband internet. The Task Force explained that the experiences shared by consumers help inform the work of the Commission. Further, the Task Force has held numerous public listening sessions to gain additional information and understanding from affected communities, state, local and Tribal governments, public interest advocates, and providers about challenges, barriers, and experiences with accessing broadband. In addition,
31. The Commission has taken iterative steps to form a robust record for the rules adopted in today's
32. In December 2022, the Commission released a
33. Based on our review of the record received in response to the
34. Section 60506 is part of a comprehensive broadband access and affordability framework intended to expand broadband coverage in the United States, improve the quality of broadband services, and increase broadband adoption rates in low-income communities. As many commenters note, the bulk of the Infrastructure Act's broadband-related provisions are directed toward (1) improving broadband access in unserved and underserved communities by incentivizing investment in hard-to-build areas (principally through tens of billions of dollars in federally administered grants), and (2) improving broadband adoption rates in low-income communities through subsidies to qualifying consumers for high-speed broadband service and related equipment.
35. The Infrastructure Act's historic investment incentives represent an acknowledgement by Congress that: (1) deploying, upgrading, and maintaining high-speed broadband networks is an expensive enterprise, even for the largest of broadband providers, (2) networks will only be built where they can be deployed at acceptable cost and then profitably operated, and (3) such legitimate, profit and loss considerations likely account for many of the gaps in access to high-speed broadband service across the United States. The investment incentives in the Infrastructure Act directly address the very real technical and economic constraints facing many broadband providers as they work to expand their networks to reach unserved and underserved communities across the country.
36. But even while seeking to address these legitimate business constraints, Congress recognized that other factors might also have played a significant role in creating and maintaining the digital divide in the United States. Thus, alongside the ambitious programs in the Infrastructure Act for improving broadband access in unserved and underserved communities, Congress, in section 60506, specifically directed the Commission to facilitate equal access to broadband service, including addressing discrimination in the provision of access to broadband service.
37. Section 60506(a) first declares “the policy of the United States that, insofar as technically and economically feasible . . . subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service . . . [and that] the Commission should take steps to ensure that all people of the United States benefit from equal access to broadband internet access service.” Section 60506(b) then directs the Commission to “adopt final rules to facilitate equal access to broadband internet access service, taking into account the issues of technical and economic feasibility presented by that objective,” and mandates that those rules include “preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin” and “identifying necessary steps for the Commission[ ] to take to eliminate” such digital discrimination of access.
38. Critically important to our understanding of the reach of section 60506 is its definition of “equal access.” Section 60506(a) declares in the Statement of Policy that the Commission should take steps to ensure “equal access” to broadband internet access service across our Nation, and section 60506(b) directs the Commission to adopt rules to “facilitate equal access” to broadband internet access service. The “equal access” that we are to ensure and facilitate is defined in subsection (a)(2) as “the
39. By enacting section 60506, Congress vested the Commission with authority to adopt and enforce rules to address the problem of digital discrimination of access. To achieve
40. In so defining “digital discrimination of access,” we find that to achieve the statute's equal access purposes, the legal standard must address not only business conduct motivated by discriminatory intent, but also business conduct having discriminatory effects.
41. Virtually all commenters agree that digital discrimination of access encompasses business conduct motivated by discriminatory intent. Certainly treating a person or a group of persons “less favorably than others because of a protected trait” is “the most easily understood type of discrimination.” Under our adopted rules, business conduct motivated
42. The disagreement among commenters centers on whether policies and practices having discriminatory
43. Statutory interpretation focuses on “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” The text and context of section 60506 of the Infrastructure Act fully support our adopted definition of digital discrimination of access and its application, as does the overall framework of the Infrastructure Act and section 60506.
44. Section 60506 plainly addresses intentional discrimination,
45. In determining whether section 60506 authorizes us to include disparate impact in our definition of digital discrimination of access, we look to the guidance provided in the Supreme Court's decision in
46. The language of section 60506 falls within Division F (Broadband Access) of the Infrastructure Act, where Congress addresses the problem of the “digital divide” in our country and the urgency of corrective action because “[a]ccess to affordable, reliable, high-speed broadband is essential to full participation in modern life in the United States.” The term “equal access” is defined in section 60506 as “the equal opportunity to subscribe to an offered service” of comparable quality on comparable terms and conditions. The term “equal access” lies at the center of section 60506's Statement of Policy in subsection (a). At subsection (b) Congress directs the Commission to adopt final rules to “facilitate equal access” which includes “preventing digital discrimination” and “identifying necessary steps . . . to eliminate [such] discrimination.” As we explain below, the facial text, context and purposes of the statute establish Congress's intent that our implementing rules address conduct having discriminatory effects as well as conduct motivated by discriminatory intent.
47. The operative text mandates the adoption of rules to “facilitate equal access to broadband” which includes “preventing digital discrimination of access based on” specified characteristics, and “identifying necessary steps . . . to eliminate [such] discrimination.” The term “equal access” is defined in section 60506(a) as “the
48. Courts commonly look to the “ordinary meaning” of a statute's words to interpret their meaning when the statute itself does not provide a definition. Looking at other operative text of section 60506, given its ordinary meaning, we find that each term targets the “consequences of actions.” For undefined statutory terms, courts can look to the “dictionary for clarification of the plain meaning of words selected by Congress.” For instance, subsection (a)(1) of the statute focuses on the “opportunity” to subscribe
49. In reaching this conclusion, we are mindful of the history of disparate impact analysis as it applies to federal anti-discrimination statutes. It was first addressed in
50. Similar reasoning was employed in examining section 804(a) of the FHA by the Court in
51. Our reading of the statutory text to encompass disparate impact aligns with the overall scheme of the Infrastructure Act, and with the purpose of section 60506 specifically. As described above, promoting broadband internet access has been a longstanding policy objective for the Commission. The 1996 Act expanded the goal of universal service to include advanced services such as broadband internet service, and the Commission used its universal funding programs to address the persistent digital divide. Then, in 2020, the global COVID-19 pandemic necessitated social distancing that made the ongoing digital divide even more evident and troublesome. Some commenters in this proceeding argue, directly or indirectly, that “digital discrimination” does not exist. But those arguments are belied by Congress's findings in the Infrastructure Act and the record compiled in this proceeding correlating the digital divide with historical discrimination. In all events, Congress has directed the Commission to take swift action to prevent digital discrimination of access. Therefore, we do not find it necessary to evaluate claims by commenters that digital discrimination of access does not exist. Such arguments would more appropriately have been made to Congress when it was considering this legislation. We have neither the authority, nor the inclination, to question the factual bases for Congress's directives to the Commission. Indeed, section 60506 aligns with the Commission's longstanding obligation to promote nondiscrimination in the telecommunications sector. Section 202(a) of the Communications Act is a nondiscrimination provision that makes it unlawful for common carriers to “discriminat[e] in charges, practices, classifications, regulations, facilities, or services for or in connection with like communications service . . . or to . . . . advantage . . . any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.” It requires no showing of discriminatory intent to establish a violation. Under section 202, where “like communications services” are provided by the same provider but on different terms or conditions, the provider must justify any difference as reasonable.
52. Gaps in access to high-quality broadband across the country led Congress to enact the broadband-related provisions of the Infrastructure Act, which creates historic investment incentives and affordability subsidies to address some of the causes of the digital divide. The Infrastructure Act also clearly mandates certain prophylactic measures to address discriminatory conduct that is not addressed elsewhere in the legislation. For the past half century, our country's civil rights jurisprudence has recognized that equal opportunity to achieve economic and social benefits can be denied intentionally because of the personal characteristics or status of the person seeking the opportunity or benefit, or it can be denied unintentionally because of facially neutral policies or practices that disproportionately exclude persons possessing such characteristics or status, and both types of denial are unlawful. Disparate impact analysis has maintained its foundational standing in the courts, most recently in
53. As further support for the Congressional purpose that drives our actions today, the record in this proceeding contains substantial evidence of gaps in access among persons in some low-income, rural, Tribal, and minority communities. As noted above, there is little or no evidence in the legislative history of the Infrastructure Act or the record of this proceeding that impediments to broadband internet access service are the result of intentional discrimination based on the criteria set forth in the statute. Rather, we must conclude that such impediments are more likely driven by neutral policies or practices (
54. Even where a statute contains “results-based” text that authorizes disparate impact claims, the liability standard must require a showing that a challenged policy or practice is causing the disparity complained about, and “avoid displacement of legitimate practices.” Both of these factors are met by the rules we adopt today.
55. First, we will require that any determination of differential impact that relies on observed disparity must point to a specific policy or practice that is causing the disparity. A “robust causality requirement” ensures that any statistical imbalance does not alone establish liability and thus protects covered entities “from being held liable for . . . disparities they did not create.” We therefore require that any determination of liability under our rules that is founded on statistical disparity must include a determination that the disparity is caused by a specific policy or practice of the covered entity under investigation.
56. Next, the rules will give covered entities an opportunity to present justifications for discriminatory policies and practices. Section 60506 sets out such limitation by requiring that our rules facilitate equal access while taking into account “issues of technical and economic feasibility.” Where the Commission believes there is credible evidence that a covered entity's policy or practice differentially impacts access to broadband internet access service on the basis of income level, race, ethnicity, color, religion, or national origin, the covered entity will have the opportunity to prove that the policy or practice is nevertheless “justified by genuine issues of technical or economic feasibility.” We anticipate that such justification will include proof that there is not a reasonably available and achievable alternative policy or practice that would serve the entity's legitimate business objectives with less discriminatory effect. In this
57. Contrary to some commenters' claims, including disparate impact in our definition of digital discrimination of access does not conflict with the
58. Nor do we believe that including disparate impact in our definition of digital discrimination of access will chill investments in broadband networks. Congress has provided historic funding incentives aimed to spur broadband investments in unserved and underserved communities throughout the United States. Those incentives, once again, address the very real technical and economic challenges that have hindered deployment, upgrades, and maintenance of networks in those communities. We are not persuaded that adoption of a disparate impact standard will disincentivize economic investments in networks out of fear that doing so might somehow require uneconomic investments. Again, we emphasize that under the rules we adopt today, there can be no liability determination for disparate impact unless (1) there is a differential in access to broadband service; (2) the differential is caused by a specific policy or practice of the covered entity; and (3) the covered entity fails to prove that the policy or practice is justified on genuine technical or economic grounds. When providing broadband access to a particular area is impeded by genuine issues of technical or economic feasibility, the covered entity should be able to explain those issues and offer substantial evidence to support them. While our rules will require greater diligence by covered entities in determining and documenting the reasons for access gaps in their service areas, we do not think that result is overly burdensome in furtherance of the statutory goal of equal access, nor do we think it will disincentivize investment in broadband networks.
59. Having reached the central determinations for adopting a definition of digital discrimination of access and the applicable legal standards, we respond to other considerations commenters raise. Commenters raise additional arguments regarding interpretation of “equal access,” legislative history, and the role that a covered entity's profitability and access to consumer data should play in our definition of digital discrimination of access analysis. We address each of those considerations in turn.
60.
61. We also disagree with Lincoln Network's argument that the statute's reference to an “opportunity” to subscribe requires a disparate treatment standard. This interpretation ignores that a consumer's “opportunity” to subscribe could be impeded by policies and practices having discriminatory effects even where discriminatory intent is absent. Consequently, limiting our definition to conduct motivated by discriminatory intent would not fully accomplish our mandate from Congress to facilitate equal access to broadband service and prevent discrimination on the listed bases.
62.
63.
64.
65.
66. Section 60506 twice references technical and economic feasibility. First, as noted above, Congress declared in section 60506(a)(1) the “policy of the United States that,
67. These references are clear indicators that full achievement of the “equal access” and “equal opportunity” goals of the statute might, in some instances, be limited by genuine technical or economic constraints. If the technology does not yet exist to provide a particular broadband internet access service to a particular geographic area, or the technology to provide the service does exist but utilizing it to reach the area in question would be prohibitively expensive, the failure to provide that specific service to that specific area would be explained by genuine technical or economic constraints. In order to account for these types of circumstances, in our December 2022
68. We first find that including the carve out for technical and economic feasibility in our definition of “digital discrimination of access” is the soundest, most straightforward, and most effective means of satisfying our statutory responsibility to facilitate equal access while “taking into account the issues of technical and economic feasibility presented by that objective.” We disagree with those commenters that suggest we omit the carve out language or argue that it should only be considered as an affirmative defense if the Commission were to create a structured complaint process to receive allegations of digital discrimination of access. We are also not persuaded by the argument that feasibility should not be included in our definition because it is not included in subsections (b)(1), (d), or (e). The proffered construction misreads subsection (b), which places feasibility concerns squarely within each of the tasks assigned to the Commission under that subsection. We similarly decline USTelecom and WISPA's request that we omit the word “genuine” from the carve out. The record reflects widespread concern that naked assertions of technical or economic infeasibility could become a loophole to complying with our digital discrimination of access rules such that they would not actually “facilitate equal access to broadband” as Congress intended. We include the word
69. We further find that Congress's directive in section 60506(b) that we take into account issues of technical and economic feasibility supports including a disparate impact approach in our definition of “digital discrimination of access” and fits neatly into the framework of disparate impact analysis. Under traditional disparate impact analysis, once a policy or practice is shown to have a meaningful adverse impact on a protected group, the covered entity may affirmatively produce evidence that the challenged policy or practice is justified by a substantial, legitimate business interest. If the covered entity does so, it may still be liable if there is a less discriminatory alternative to the challenged policy or practice. Congress's directive that the Commission take into account issues of technical and economic feasibility represents a formulation of this traditional test as tailored to the specific context of section 60506 and the issues it aims to address. As further discussed above in the disparate impact paragraphs and below in the enforcement-related paragraphs, a covered entity in a Commission investigation under section 60506 will likewise have the opportunity to show that the policy or practice under scrutiny is justified by genuine technical or economic constraints. And as part of the Commission's consideration of these issues, a covered entity will be allowed to present for the Commission's review any legitimate business impediment to the use of less discriminatory alternatives. We find that the feasibility provision is largely superfluous to intentional discrimination of access, and that when Congress directed the Commission to be mindful of technical and economic considerations, its objective was to ensure that covered entities in any investigation the Commission conducts under our rules to prevent digital discrimination of access would have an opportunity to explain and justify their conduct.
70. We disagree with commenters asserting that the technical and economic feasibility language in section 60506 does not support inclusion of disparate impact in our definition of digital discrimination of access. These commenters fail to explain why consideration of technical and economic feasibility makes sense only in the context of disparate treatment claims or why it makes more sense in the context of disparate treatment claims than in the context of disparate impact claims.
71. We are also not persuaded by AT&T's argument that Congress's contemplation of technical and economic justifications for challenged practices does not support an inference that Congress intended to capture cases of disparate impact. AT&T argues that section 60506's feasibility provision has “independent significance even if Congress intended the Commission to address only intentional discrimination” because “income levels are routinely used [ ] as a basis for business decisions in a wide variety of [] industries.” But as the Lawyers' Committee for Civil Rights Under Law notes, “there is still no scenario in which intentional discrimination on the basis of income level—or any other protected characteristic—could ever be justified by technical feasibility.” We find that AT&T's reading “is thus at odds with one of the most basic interpretive canons, that `[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .' ” And, as we have stated elsewhere, there is little or no evidence in the legislative history or in the record of this proceeding that intentional discrimination on
72. As discussed in more detail below, we adopt clear definitions of the terms “technically feasible” and “economically feasible” based on the record in this proceeding and Commission precedent; and, we explain how the Commission will assess issues of technical or economic feasibility under section 60506(b). We interpret section 60506(b)'s reference to “issues of technical and economic feasibility” to mean issues of “technical feasibility” on the one hand, and issues of “economic feasibility” on the other. We understand subsection (a)'s use of “technically and economically feasible” and subsection (b)'s use of “technical and economic feasibility” to reference the same concepts. We define a “technically feasible” policy or practice to mean one that is “reasonably achievable as evidenced by prior success by covered entities under similar circumstances or demonstrated technological advances clearly indicating that the policy or practice in question may reasonably be adopted, implemented, and utilized.” Similarly, we define an “economically feasible” policy or practice to mean a policy or practice that is “reasonably achievable as evidenced by prior success by covered entities under similar circumstances or demonstrated new economic conditions clearly indicating that the policy or practice in question may reasonably be adopted, implemented, and utilized.”
73. In the
74.
75. Judicial case law also informs our definitions of technical and economic feasibility for section 60506 purposes. In 2002, the Supreme Court decided a challenge to the Commission's implementation of section 251 of the Communications Act that involved the Commission's interpretations of the statutory phrase “technically feasible.” Petitioners in that case argued that Commission rules requiring incumbent carriers to combine unbundled network elements where “technically feasible” was unreasonable and in conflict with the statutory language. In upholding the Commission's rules, the Court rejected the petitioners' argument that the rules imposed no reasonable limits on the requirement to combine network elements. Rather, the Court held that the Commission's definition of “technically feasible” provided real limits on what would be required of incumbent local exchange carriers, concluding that “[i]f `technically feasible' meant what is merely possible, it would have been no limitation at all.” The Court's ruling, albeit in a different context, instructs that we should be skeptical of arguments suggesting that technical and economic feasibility are concepts operating at the margins of what is technical and economically
76.
77.
78. Our definitions of “technically feasible” and “economically feasible” join previous Commission interpretations of these terms with several important attributes specific to the present context. As a baseline, we interpret the categories of “technical” and “economic” feasibility broadly to encompass any legitimate business impediment to achievement of equal access. In addition to using prior successful policies and practices as the foundation for determining what is technically or economically feasible, we design our definitions to flexibly encompass future policies and practices and the inherent differences in the operation of covered entities of varying sizes and technologies. We also take a measured approach that considers the real burdens industry participants face in deploying and providing service, while also ensuring that we do not create “a loophole that renders the rules meaningless.” And lastly, we make clear that issues of technical and economic feasibility are related but ultimately distinct from each other.
79. We take a measured approach to defining these terms, providing guideposts for understanding what is technically or economically feasible today and what could be feasible in the future. We emphasize that we do not define technical and economic feasibility as simple deference to a single entity's judgment, as many industry commenters argue we should. We agree with those commenters asserting that Congress did not adopt section 60506 to enshrine the current industry status quo. When considering what is technically or economically feasible, we expect covered entities to consider more than just what is the most convenient. For example, the Commission found in other contexts that the novelty or costliness of a particular business path does not, in itself, answer the question of whether that path is feasible, nor does the difficulty of a change in product design. At the same time, we do not create an “impossibility” standard as some commenters have warned against, which would define any action as technically or economically feasible unless it was impossible. Like the Commission's approach to defining “technically feasible” in the
80. We acknowledge that the technical and economic challenges that covered entities face in deploying and serving rural, Tribal, and urban areas can vary greatly. At the same time, we agree with Public Knowledge et al. that “broadband deployment may still be feasible in areas even where there are no similar circumstances to use as a benchmark,” and if feasibility “was limited to circumstances where there is a direct analog, certain areas that have gone long underserved due to unique characteristics might continue to fall through the cracks.” Thus, we intend for our approach to technical and economic feasibility to encompass new, but analogous, policies and practices to account for variations among covered entity types and industry advancement. The Commission has previously crafted a definition of technical feasibility to outlast current technological development in the context of certain unbundling obligations for incumbent local exchange providers. Under those rules, the Commission adopted a rebuttable presumption that once one state had determined an approach was technically feasible, the same approach would be presumed to be technically feasible for incumbent local exchange carriers in every state. We decline at this time to adopt a presumption of feasibility, and therefore do not take the precise approach taken by the Commission in 1999. But we do find that we are similarly defining our concepts of technical and economic feasibility to allow for consideration of technical, infrastructure, economic, or other developments in the area under review. We also decline at this time to adopt any explicitly different standard for evaluating claims of economic feasibility for existing service offerings versus new deployments.
81. While our definitions of technical and economic feasibility mirror each other, and in certain respects might be related, we consider each to be a distinct concept. The Commission has taken this approach previously, and commenters urge us to adopt the same approach here. We agree that a policy or practice may be technically feasible but not economically feasible, and vice versa.
82.
83. We also design our case-by-case approach to flexibly account for the differences between covered entities of varying sizes, technologies, and circumstances. We agree with those commenters, like Competitive Carriers Association, who encourage us to take a “a practical and flexible approach that encourages innovation and investment to close the digital divide.” Therefore, we decline at this time to adopt distinct standards or definitions for different types of covered entities. We find that our adopted definitions will allow the Commission to consider what is reasonably achievable for the particular entity under investigation. Moreover, as the Commission has found previously, legal or regulatory constraints can also be considered when determining technical feasibility.
84. Furthermore, we find that when the Commission conducts an investigation under the enforcement process described below, the entity under investigation will have the burden of proving to the Commission that the policy or practice in question is justified by genuine issues of technical or economic feasibility. The Commission has commonly taken this approach in previous approaches analyzing “technical feasibility,” as well as regarding satellite carriers claiming “technical or economic infeasibility” in the market modification context. In the context of section 60506, we find that assigning this burden to the entity under investigation is inherent in the structure of our definition of “digital discrimination of access.” We find, as the Commission has previously, that as a practical matter, it is the entity providing the justifications for its policies and practices that has access to the necessary information to support their factual assertions. And, as we have previously stated, those justifications will usually involve arguments and evidence that technical or economic constraints limit the availability of less discriminatory alternatives.
85. Finally, we emphasize that the Commission will closely scrutinize claims of technical or economic feasibility through review of documentation submitted by the entity under investigation, publicly available reports and other information, interviews and depositions of relevant personnel, and other available information. Under the Commission's market modification rules, the Commission created a process for satellite carriers to claim an inability to broadcast in certain locations due to technical and economic feasibility. In practice, the Commission's Media Bureau closely scrutinizes satellite carriers' infeasibility claims under § 76.59 of the Commission's rules. Similarly, in the context of our section 60506 rules, the Commission will not defer to the entity seeking to justify policies and practices alleged to be discriminatory. We will require proof by a preponderance of the evidence that the policy or practice in question is justified by genuine issues of technical or economic feasibility. Stated differently, a covered entity can demonstrate that a policy or practice is justified by genuine issues of technical or economic feasibility by showing that less discriminatory alternatives are not reasonably available and achievable because of genuine technical or economic constraints.
86. Today we adopt a rule broadly and directly prohibiting “digital discrimination of access” as we have now defined it. Our prohibition thus forbids both intentionally discriminatory conduct (that is, applies a disparate treatment standard) as well as conduct that produces discriminatory effects (that is, applies a disparate impact standard). This approach does not supplant, but rather supplements the Commission's past and ongoing efforts to facilitate broadband access through affirmative approaches.
87. At this time, we find that this broad prohibition and the enforcement mechanisms described below are the most cost-effective means to accomplish Congress's stated objectives in section 60506. Prohibiting discrimination in access to broadband service is necessary to facilitate equal access to broadband and prevent digital discrimination of access, and both of these goals are required by the statute. In that same vein, unequal access to broadband service imposes significant costs on unserved and underserved communities, and on the Nation as a whole. The voluntary informal complaint process described below is a low-cost approach toward meeting the statutory requirement that leverages existing Commission systems. Similarly, enforcement of the broad prohibition through self-initiated investigations affords the Commission ample flexibility without substantially overhauling the enforcement process. Such low-cost approaches will allow the Commission to enforce the statute in a cost-effective manner, while bringing the undeniable benefits of expanded broadband access. Lastly, our rules are designed to minimize the compliance- and other-related costs they will likely impose on broadband providers and the other entities our prohibition covers.
88. Fundamentally, a policy or practice will violate our prohibition on digital discrimination of access if it discriminates, either by intent or in effect, based on one of section 60506's listed characteristics. In determining whether a policy or practice violates the prohibition we adopt today, the Commission will look first to whether the policy or practice in question differentially affects access to broadband service or is intended to do so. If that question is answered in the affirmative, the Commission will review any issues of technical or economic feasibility that may compel use of the challenged policy or practice rather than a less discriminatory policy or practice. In other words, the rules we adopt today require assessment in the first instance of whether a policy or practice is discriminatory; and if so, whether there were reasonably available and achievable alternatives (
89. We disagree with commenters asserting that section 60506 does not authorize a prohibition on private conduct. These commenters variously claim that section 60506, as part of the Infrastructure Act, only obligates the Commission to undertake affirmative-based efforts,
90. We also disagree with commenters arguing that a broad prohibition against digital discrimination of access will fundamentally transform the current regulatory landscape. As we explain below, our approach, which implements the directive in section 60506, involves self-initiated investigations. Such investigations may be premised on information submitted by the public, communications with state, local, or Tribal officials, or through outreach via other channels. However, we note that a complaint or allegation alone does not necessarily warrant an enforcement response from the Commission, thus ameliorating any such concerns raised by some commenters. Our prohibition—consistent with the Commission's nondiscrimination requirements associated with its ongoing efforts to promote broadband access—and the enforcement methods we outline below represent an important, yet incremental, step in furthering the Commission's and Congress's digital equity goals.
91. We find that the digital discrimination of access rules we adopt today shall apply to entities that provide, facilitate and affect consumer access to broadband internet service. Covered entities include, but are not limited to, broadband providers as defined in rule 54.1600(b), contractors retained by, or entities working through partnership agreements or other business arrangements with, broadband internet access service providers; entities facilitating or involved in the provision of broadband internet access service; entities maintaining and upgrading network infrastructure; and entities that otherwise affect consumer access to broadband internet access service as further discussed below. In the
92. Numerous commenters agree that broadband providers are not the only entities that should be subject to these rules. To be sure, other platforms and organizations affect consumer access to broadband internet access service. For example, Lawyers' Committee for Civil Rights Under Law argues that section 60506 prohibits interference with equal access to broadband by any type of entity because guaranteeing equal access to broadband for all individuals requires applying the statute to any entity that can affect the ability of an individual to access the service, not just those entities that provide connectivity. And as TURN states, as technology evolves, the Commission's rules must be able to address future technological evolutions that may affect or interfere with broadband internet access. Lastly, National Digital Inclusion Alliance and Common Sense Media urge us to apply our rules to any entity—subsidiary, parent company, or other—that provides broadband internet access service.
93. We disagree with arguments that our authority under 60506(b) extends only to providers of broadband internet access service because “only a service provider, and not some other class of entity, can `offer' a `service'.” As explained below, we believe the definition of “equal access” in section 60506(a), which applies both to section 60506(b)'s mandate that we facilitate equal access and that we prevent digital discrimination of
94. Lastly, we acknowledge that commenters disagree on whether to include infrastructure owners and local governments within the scope of our rules, but we decline to expressly carve out specified entities from the scope of coverage at this time. City of Philadelphia, City of Oklahoma, City of Minneapolis, etc. (Local Governments) argue that not considering infrastructure owners as providers of broadband services subject to our digital discrimination of access rules would allow broadband providers to outsource their deployments to third parties to avoid our equal access rules. WIA disagrees with Local Governments in their assertion that infrastructure owners should be covered by the rules on digital discrimination of access, arguing that doing so would unlawfully expand the Commission's jurisdiction. Additionally, Local Governments request that we not categorize local governments as “covered entities” based on their roles as right-of-way managers or franchise regulators. While there may be tension in the record as to the role these entities play, our rule is clear that any entity that meaningfully affects access to broadband internet service is subject to our digital discrimination of access rules.
95. The definition of digital discrimination of access adopted today includes “policies and practices . . . that differentially impact
96. Consistent with the purposes of section 60506, the term “consumers” as used in our adopted definition of digital discrimination of access comprises current subscribers and prospective subscribers of broadband internet access service. Our rules do not cover other types of broadband service, such as business data services or enterprise customer purchases. And, under this rule, individual or groups of persons, organizations, or businesses fall within the scope of the term “consumer.” Covering both current and prospective subscribers is supported for several reasons. First, section 60506's Statement of Policy directs the Commission to “ensure that all people of the United States benefit from access to broadband.” As the American Library Association observes, “[t]here are `people of the United States' who are not subscribers because they experience digital discrimination that precludes them from becoming subscribers.” The California Public Utilities Commission further observes that “one cannot count as a subscriber if broadband service is not offered to them in the first place.” We agree. We would not be fulfilling our statutory mandate to facilitate equal access to broadband internet access service if we failed to include unenrolled or prospective subscribers as “consumers” under our rules. Second, limiting “consumers” to existing subscribers would do nothing to expand
97. We therefore reject commenters' arguments that the “consumers” covered by our rules should be limited to subscribers. We disagree with NTCA's argument that the Commission's purview is limited to “subscribers,” referring to “those who purchase service from the provider.” The Commission cannot fulfill Congress's directive to facilitate equal access to broadband internet access service without being able to address the issues that limit the opportunity to subscribe in the first instance. We firmly believe Congress intended the rules implementing section 60506(b) to facilitate the expansion of access of broadband service by eliminating discrimination, not just the leveling of service quality and terms. Therefore, our rules for digital discrimination of access cover all consumers, including both current and prospective subscribers.
98. We also find that, for purposes of our definition of “digital discrimination of access,” the term “consumers” includes not only individuals, but also groups of persons, organizations, and businesses. We agree with National Digital Inclusion Alliance and Common Sense Media that digital discrimination of access can manifest differently when it affects a single person, as compared to a group of persons within a community, and either type of discrimination can violate the rules.
99. In the
100. Congress identified six characteristics as bases for digital discrimination of access—income level, race, ethnicity, color, religion, and national origin. In the
101. Based on the language of the statute, we do not add to the listed characteristics of persons protected under the rules that serve as the bases for considering digital discrimination of access. Even though the statute affords protection against digital discrimination of access based on national origin, some commenters urge us to incorporate “limited-English proficiency” (LEP) as an express listed characteristic under the rules. It is well established, however, that discriminating against persons based on their limited-English proficiency can constitute a form of national origin discrimination. Federal agencies have interpreted Title VI's prohibition against national origin discrimination to require that LEP individuals have meaningful access to federally funded programs and activities. This same interpretation as to national origin discrimination has been given under the Fair Housing Act. Congress must be presumed to have deliberately limited the list of protected characteristics in section 60506(b) to income level, race, ethnicity, color, religion, and national origin. While we acknowledge the strong record support for extending the rule to cover persons with other characteristics, federal antidiscrimination laws often vary in terms of the protected classes they cover. For example, many commenters discussed the challenges faced by people with disabilities in securing access to high quality broadband services. For instance, Title VII of the Civil Rights Act protects against discrimination based on “race, color, religion, sex, or national origin,” whereas the FHA goes further and includes additional protections for “disability and familial status.” Here, Congress chose the six listed, protected characteristics and not others. This does not mean that the legitimate concerns of persons with these additional characteristics is to be minimized. To the contrary, the record is replete with evidence that classes beyond the six listed groups face varying broadband-related challenges. We have no discretion to overrule the choice made by Congress in this regard, at least as it applies to our rules implementing section 60506(b). Under section 60506(c)(3), the Commission and the Attorney General can seek to prohibit “deployment discrimination” based on factors other than those listed in that section, based on the record developed in this proceeding. Further, even if not covered by Section 60506(b), people with disabilities may avail themselves of other federal laws governing digital accessibility, such as the Americans with Disabilities Act of 1990 (ADA), the Rehabilitation Act of 1973, and the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA).
102. Our work towards ensuring broadband access does not begin or end with this statute. We will continue to address access to broadband under other sources of authority. For example, we have established accessibility protections under other statutory grants that govern the ACP, ECF, and EBB programs. The ACP supports the purchase of broadband access services and connected devices, such as tablets and laptops, and requires them to be accessible. In the Emergency Connectivity Fund Report and Order, the Commission established an expectation that connected laptops be accessible to students, school staff, and library patrons with disabilities to address their remote learning needs. For these connected laptops, school districts have purchased accessibility features such as software providing screen magnification, screen reading functionalities, captioning services, and touchscreens for students with significant fine motor skills difficulties. As we move forward, we will continue to use all the tools at our disposal to ease the digital accessibility divide.
103. For purposes of these rules, we apply the same definition of “broadband internet access service” that appears in § 8.1(b) of the Commission's rules. That definition states: The term “broadband internet access service” means “a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence or that is used to evade the protections set forth in this part.” We use the terms “broadband,” “covered services,” and “broadband internet access service” interchangeably.
104. In the
105. Moreover, the record reflects strong support for adopting § 8.1(b)'s definition. As Local Governments notes, including all types of broadband providers is consistent with the
106. The rules we adopt today apply to any lack of comparability in service quality, as indicated by the metrics specifically listed in the statutory definition of “equal access” as well as any “other quality of service metrics in a given area,” and to any lack of comparability in terms and conditions of service, including but not limited to price. We find this scope of coverage to be consistent with section 60506's statutory text and necessary to effectuate its purpose.
107. In broadly applying our rules to all relevant service quality metrics and all terms and conditions of service, we note that Congress directed the Commission to facilitate equal access to the entirety of broadband internet service, not to certain elements of such service. Congress defined “equal access” in section 60506's statement of policy to mean that consumers have “the equal opportunity to subscribe” to broadband internet access service with “comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions[.]” As many commenters explain, the inclusion of “other quality of service metrics” and “comparable terms and conditions” in the definition of “equal access” reflects Congressional intent and authorization that the Commission's digital discrimination of access rules cover any aspect of broadband internet access service that impedes, impairs or denies “equal access” to that service.
108. The aspects of service that could affect a consumers' ability to receive and effectively utilize broadband internet access service include, but are not limited to, deployment, technical terms and conditions of service, such as policies and practices regarding speeds, capacities, latency, data caps; network infrastructure deployment, network reliability, network upgrades, network maintenance, customer-premises equipment, and installation; as well as non-technical terms and conditions of service, such as policies and practices regarding contractual terms generally, mandatory arbitration clauses, pricing, deposits, discounts, customer service, language options, credit checks, marketing or advertising, contract renewal, upgrades, account termination, transfers to another covered entity, and service suspension. Moreover, in order to fully effectuate the goals of section 60506, we find that our rules must cover both actions and omissions, whether recurring or a single instance, concerning these aspects of service, that defeat comparability of service quality, terms, and conditions.
109. We find that adopting a broad definition of covered elements of service is both consistent with the language of section 60506 and necessary to fulfill its purpose. First, by including the catch-all language “and other quality of service metrics in a given area,” Congress expressly authorized the Commission to supplement the listed elements of service to include all measurable quality-of-service elements that could affect consumers' ability to receive and effectively utilize broadband internet access service. As the record reflects that policies and practices relating to an array of technical and non-technical aspects of service can affect a consumer's ability to access broadband, a definition with a narrower scope could lead to the Commission's rules failing to cover some aspects of service that result in digital discrimination of access. Consequently, we agree with Lawyers' Committee for Civil Rights Under Law that adopting a flexible approach is necessary “to capture the long tail of intangible variables that are difficult to list exhaustively and are subject to change.” Second, our definition provides us with the advantage of flexibility, which will “future proof” our rules as technologies, policies, and practices change over time. For these reasons, we reject the argument that by including certain quality of service metrics in 60506(a)(2), Congress foreclosed consideration of other measurable elements of service quality in evaluating whether equal access has been achieved.
110. We reject arguments that we should limit the scope of covered elements of service to deployment practices or technical terms of service, or that we exclude certain terms, such as pricing. We are persuaded that Congress intended for the Commission's rules implementing section 60506(b) to cover more than deployment practices. As noted above, Congress directed the Commission in section 60506(b) to adopt rules to facilitate equal access to broadband internet access service,
111. Finally, regarding the inclusion of pricing within the scope of our rules, we find that the statutory language encompasses discriminatory pricing. We emphasize that the rules we adopt today do not set rates for broadband internet access service and are not an attempt to institute rate regulation. Once again, section 60506(b) directs us to “adopt final rules to facilitate equal access to broadband internet access service,” and “equal access” is defined in section 60506(a)(2) as the equal opportunity to subscribe to an offered service that provides comparable quality of service “
112. We also reject Verizon's argument that our rules cannot apply to policies and practices that occur after a customer subscribes to broadband internet access service. Verizon argues that the definition of “equal access” limits the scope of our rules to policies and practices affecting only the “opportunity to subscribe” to broadband service
113. We adopt the proposals in the
114. We agree with the majority of commenters who assert that consumers should have an easily accessible complaint process. Such a process will not only benefit consumers in filing complaints related to digital discrimination of access but will also assist the Commission in monitoring what consumers are experiencing, identifying trends, and informing potential policy determinations or enforcement. We note that the Commission's Consumer Complaint Center is responsive on mobile devices and that the FCC's call center is staffed by both English and Spanish speaking agents who can file complaints on behalf of consumers. Individuals who use videophones and are fluent in American Sign Language (ASL) may call the Commission's ASL Consumer Support line for assistance in ASL with filing informal complaints or obtaining consumer information. Consistent with our current process and procedures, consumers may also file complaints via the Consumer Inquiries and Complaint Center, as well as by fax and postal mail.
115. We thus disagree with commenters who argue that our proposed informal complaint process changes would impose undue burdens on covered entities. Our proposed changes do not alter the existing informal complaint process. Rather, our proposed changes make it easier for consumers to file informal complaints related to digital discrimination of access, as mandated by Congress, and allow the Commission to better analyze such complaint data. Indeed, Commission experience with the dedicated pathway for ACP complaints has demonstrated the utility of such a dedicated pathway.
116. We also disagree with the International Center for Law & Economics, which argues that the Commission should implement a legal “standing” requirement for filing informal complaints. The Commission's informal consumer complaint process is designed specifically to provide consumers with a simple and efficient way raise concerns and file complaints with the Commission without complicated legal procedures, filing fees, or other burdensome requirements. The Commission does not currently impose any standing requirements for filing informal consumer complaints. Adopting a standing requirement specifically for digital discrimination of access issues with the Commission would, in effect, thwart a consumer's ability to do so. Such an outcome would be contrary to the express language of section 60506.
117. We adopt our proposal to add a dedicated pathway for digital discrimination of access complaints. This dedicated pathway will provide digital discrimination informational content in the Consumer Complaint Center to educate consumers about digital discrimination and to provide clear instructions to consumers on how to correctly file a digital discrimination complaint. Consumers will be able to submit their digital discrimination of access complaints through the Consumer Inquiries and Complaint Center. They will be required to choose an issue that best describes their complaint and include a narrative with pertinent details. These complaints will be reviewed and processed. If the consumer submits a complaint alleging digital discrimination of access by a covered entity, the complaint will be forwarded to the appropriate covered entity for investigation and the Commission may set a due date for the covered entity to provide a written response to the informal complaint to the Commission, with a copy to the complainant. Complaint information will be reviewed internally to inform policy and shared internally, when appropriate, for potential enforcement. In addition, we note that the Commission's established administrative processes and procedures afford the Enforcement Bureau access to all consumer complaint data that is submitted through the Consumer Inquiries and Complaint Center. The record in this proceeding reflects widespread support for establishing such a pathway. We agree with commenters that adding a dedicated pathway will increase both the accessibility and efficiency of the complaint process. We direct the Consumer and Governmental Affairs Bureau to implement this dedicated pathway and, in coordination with the Wireline Competition Bureau, to monitor complaints submitted through this pathway to assist in the formulation of future policy and consumer education initiatives.
118. We also agree with those commenters who stress the need to educate consumers on the issue of digital discrimination of access and the complaint process associated with such complaints. We direct the Consumer and Governmental Affairs Bureau, in coordination with the Wireline Competition Bureau, to develop materials to educate consumers on digital discrimination of access and on how to file complaints via the dedicated pathway.
119.
120. We adopt our proposal to collect voluntary demographic information from filers who submit digital discrimination of access complaints. We note that the statute requires the Commission to “prevent[ ] digital discrimination of access based on income level, race, ethnicity, color, religion, or National origin[.]” We find that collecting minimal, voluntary demographic information from individuals filing complaints may enable us to identify and understand some underlying patterns of digital discrimination of access that might not otherwise be apparent from the substance of the complaints, thus increasing the utility of the informal complaint process as it relates both to policy development and enforcement. We agree that this collection should be voluntary on the part of the complainant and direct the Consumer and Governmental Affairs Bureau to make clear that this information is not required in order to submit a digital discrimination of access complaint, that the provision of such information will not affect the submission or processing of the complaint, why this information is being collected, how it will be used, and how it will be maintained by the Commission. We note that the Commission's use and disclosure of such information will be subject to the applicable System of Records Notice
121. We disagree with WISPA that providing demographic information should be mandatory. We are concerned that requiring this information may deter consumers from filing complaints. Because the purpose of our changes is to encourage consumers to file informal complaints when they believe our rules may have been violated, we find that the potential deterrence effect from requiring such information outweighs any potential benefit from making the provision of such information mandatory.
122. We adopt our proposal to establish a clear pathway for organizations to submit digital discrimination of access complaints. We agree with commenters that allowing community partners and third-party organizations to file informal complaints on behalf of consumers (individuals or groups of individuals) will enable the Commission to better identify substantive complaints and collaborate with state, local and Tribal governments when addressing such complaints. We also agree with commenters such as the National League of Cities that allowing third parties to file on behalf of consumers will improve access to our informal complaint process for those with language barriers, limited digital skills, and/or limited access to devices or connectivity. Improving access to our informal complaint process serves both as an important safeguard for marginalized communities and as a means of ensuring that our complaint data is complete and accurate.
123. We disagree with commenters who suggest that third party filers should be subject to more burdensome procedural or evidentiary standards. We find that the benefits of promoting and enhancing access to our informal complaint process far outweigh the limited risks outlined by the commenters. We agree with Public Knowledge that one of our primary goals is to “further enable marginalized communities to be represented through the complaint process” and that “to throw up additional barriers would undermine this goal.”
124.
125. We find that effective implementation of section 60506 requires use of the Commission's traditional enforcement mechanisms to fulfill Congress's mandate that the Commission prevent and identify necessary steps to eliminate digital discrimination of access. This includes the full gamut of the Commission's enforcement toolkit, which ranges from letters of inquiry to remedial orders to forfeiture proceedings. Alleged or otherwise apparent instances of digital discrimination of access will be investigated on a self-initiated basis. This approach, which affords the Commission necessary flexibility for tackling Congress's directives, will involve data gathering via complaints and allegations made through the Commission's informal complaint process by state, local, and Tribal officials, and via other sources.
126. As explained above, a policy or practice will violate our prohibition on digital discrimination of access if it discriminates, either by intent or in effect, based on one of section 60506's listed characteristics. In examining policies and practices, the Commission will look to whether the policy or practice in question differentially affects access to broadband internet access service or is intended to do so. If yes, then the Commission will look to whether less discriminatory options were available. Thus, the rules we adopt today involve a twofold assessment: first, whether a policy or practice is discriminatory; and if so, whether there were reasonably available and achievable alternatives (
127. In the
128. We find that subsection (b)(1) and (e) under section 60506 provide the Commission express authority to enforce its mandates using the Commission's normal suite of enforcement mechanisms. Section 60506 directs the Commission to adopt final rules to “prevent[ ] digital discrimination of access,” and to “identify[ ] necessary steps” for eliminating such discrimination. Use of the words “prevent” and “eliminate” is unusual in the context of a federal anti-discrimination statute. Congress usually adopts a statutory prohibition on the types of discrimination it seeks to address, then tasks the relevant administrative agency with implementing the prohibition through agency rules. As discussed in prior sections of this Order, the words “prevent” and “eliminate” constitute strong medicine and represent a broad mandate for the Commission to take the necessary measures to fully eradicate digital discrimination of access. Moreover, a prohibition without enforcement cannot reasonably be expected to affect conduct in a meaningful way. Indeed, various commenters have identified the use of existing Commission enforcement mechanisms as necessary tools for ensuring compliance with our rules. Others contend that without the use of such tools, section 60506 could not function as Congress intended. Similarly, there would be little point for Congress to direct the Commission to accept complaints of digital discrimination of access if we lacked any of our traditional powers to act on them. The existing “public complaints
129. However, some commenters argue that the Commission lacks authority, both under the Communications Act and section 60506, to enforce any rules prohibiting digital discrimination of access. They argue that because Congress did not expressly incorporate section 60506 into the Communications Act, any remedies or enforcement mechanisms found in the Communications Act are unavailable, and section 60506 does not authorize the use of such enforcement tools. AT&T, for example, argues that Congress's decision to “keep [s]ection 60506 out of the Communications Act and to avoid cross-references between it and Title V” reflects Congress's desire to make enforcement by traditional mechanisms unavailable. CTIA similarly observes that unlike other provisions of the Infrastructure Act, such as section 60502, Congress did not explicitly enable the Commission to “impose forfeiture penalties under [s]ection 503 of the Communications Act” in section 60506, rendering those tools unusable.
130. We disagree with those asserting that section 60506 does not authorize the use of the Commission's existing enforcement mechanisms. Congress's decision not to incorporate section 60506 into the Communications Act does not suggest that it contemplated only voluntary compliance with rules designed to “prevent” digital discrimination of access. Although some commenters argue that Congress implicitly or indirectly incorporated section 60506 into the Communications Act, we need not rely on such arguments to justify our approach. Rather, we agree with commenters asserting that section 60506, standing alone, authorizes the Commission to adopt or amend enforcement rules deemed necessary to facilitate equal access and prevent digital discrimination of access, including the use of the Commission's existing enforcement mechanisms.
131. As discussed above, section 60506 authorizes the Commission to incorporate both disparate treatment and disparate impact standards in its definition of digital discrimination of access and, consequently, to adopt rules prohibiting covered entities from engaging in such practices. Contrary to arguments that section 60506 tasks the Commission with “facilitat[ing] equal access” by way of funding providers' deployment efforts, the statute expressly commands the Commission to
132. We find that section 60506 provides the Commission authority to enact such rules as are necessary to fulfill its statutory obligations—including, for example, amendment or readoption of our existing enforcement rules in the specific context of digital discrimination of access. Section 60506(b) directs the Commission to “adopt final rules to facilitate equal access to broadband internet service . . . including . . . preventing digital discrimination of access . . . .” And as we explain above, our enforcement tools are indispensable in fulfilling this mandate. Section 60506 therefore authorizes the Commission to adopt, readopt, or amend enforcement-related rules as necessary to accomplish this task.
133. Finally, we find that section 4(i) of the Communications Act provides the Commission ancillary authority to carry out its statutorily mandated duties under section 60506, including enforcement of a prohibition on digital discrimination of access. Section 4(i) provides that “[t]he Commission may perform any and all acts, make such rules and regulations, and issue such orders, . . . as may be necessary in the execution of its functions.” Effective enforcement rules are reasonably ancillary to the Commission's statutorily mandated responsibility to combat discrimination in providing access to broadband service. Arguments to the contrary highlight that section 60506 does not fall within the scope of the Communications Act and that its mandate lacks a limiting principle. But as TechFreedom acknowledges, section 4(i) enables the Commission to carry out duties conferred by Congress outside those outlined in the Communications Act. And as explained above, contrary to claims that use of its ancillary authority in this instance would release the Commission “ `from its congressional tether' ” or would “exceed the bounds of its statutorily[ ] delineated authority,” the Commission's establishing and enforcement of today's prohibition logically extends from and satisfies Congress's mandate of preventing digital discrimination of access.
134. We note that the enforcement measures and final rules that we adopt today do not represent all that the Commission can—and must—do to combat digital discrimination of access. As noted above, section 60506(b) directs the Commission to adopt “final rules” to: (1) prevent digital discrimination of access and (2) identify necessary steps for the Commission to take to eliminate such discrimination. We interpret Congress's directive with respect to “eliminating” digital discrimination of access to include steps not taken in our implementing rules that might ultimately be necessary to ensure that such discrimination does not occur after the effective date of our rules. Congress has tasked us to identify any such “necessary steps” so they can swiftly be undertaken if and when determined to be necessary, and so Congress can consider what additional statutory authority, if any, might be necessary to allow for full achievement of the equal access goal. We believe the rules we adopt today, coupled with the affirmative requirements proposed in the
135. We disagree with those asserting that enforcement of our prohibition raises a major-questions-doctrine issue. As explained below, the Commission's
136. At the same time, we do not agree with some commenters' suggestion that section 60506(b)(2) represents a broad grant of authority to the Commission to require covered entities to undertake remedial measures to eradicate the effects of conduct predating the effective date of our rules. While section 60506(b)(2) authorizes the Commission to “identify” the steps necessary to eliminate the discrimination identified in subsection (b)(1), it does not, in our view, constitute a clear grant of authority to impose retroactive liability on industry participants. Moreover, we note that determining when and where digital discrimination of access occurred across the country in the past, how to remedy such discrimination, and how to assign and allocate the cost of such remediation, would represent highly time- and resource-intensive undertakings. We will not presume that Congress intended for the Commission to undertake these highly complex tasks without clear evidence to that effect. Accordingly, for purposes of implementing section 60506(b), we will train our focus on preventing—and thus eliminating—digital discrimination of access occurring after the effective date of our rules.
137. We amend some of our existing enforcement rules today to enshrine the processes by which the Commission will undertake investigations of claims of digital discrimination of access. These include changes to Rule 1.80, which details our forfeiture procedures, so that it will now reference the provisions of section 60506 in addition to those of the Communications Act and other statutes. Rule 1.80, which acts as our implementing rule for forfeiture proceedings, states that a forfeiture penalty may be assessed against any person found to have violated either designated provisions of the Communications Act (and rules related thereto); Title 18 of the United States Code; or section 6507 of the Middle Class Tax Relief and Job Creation Act of 2012, as well as rules, regulations, and orders promulgated thereunder. Additionally, Rule 0.111 will now reflect the Enforcement Bureau's direction to investigate claims of digital discrimination of access and make recommendations as to potential violations and penalties. We adopt these amendments pursuant to the authority expressly granted to the Commission in section 60506(b).
138. The Commission will launch investigations into complaints and allegations of digital discrimination of access on a self-initiated basis and, where the Commission determines a violation has occurred, pursue remedies and penalties. Investigations may stem from complaints filed through the informal complaint process or information otherwise brought to the Commission's attention. As outlined above, the Commission will adopt a dedicated pathway for accepting digital discrimination of access claims from the public. Additionally, the Commission may receive allegations of digital discrimination of access from state, local, or Tribal governments. And as proposed in the
139. The Commission will conduct its investigations of digital discrimination of access complaints and allegations consistent with federal law and in a manner consistent with the processes and procedures followed by other federal agencies. Taking this approach ensures alignment with civil rights models, as suggested by some commenters. In investigating complaints and allegations of digital discrimination of access, we adopt the legal standards for proving discriminatory treatment and disparate impact set out below and in our discussion above of disparate impact and disparate treatment standards as they relate to our definition of digital discrimination of access.
140.
141.
142.
143. The Commission will investigate three elements under this framework: (1) whether there is differential treatment of similarly situated persons; This element is shown with evidence that persons are within a protected group; they were eligible for service; were treated in an adverse manner; and that persons similarly situated, but not in the protected group, received better treatment. (2) whether there is a legitimate, technical or economic justification for such differential treatment; This element will be investigated by the Commission, and any explanation must be clear and reasonably specific, and fully support a showing that there was a “legitimate, nondiscriminatory reason for the different treatment.” And, if so, (3) whether the technical or economic justification for the differential treatment is actually a pretext for prohibited discrimination. Under this element, the Commission will investigate whether any reason given for the challenged action was pretext for discrimination. Under this element, the Commission may weigh whether the reasons given were true; any weaknesses, implausibility, inconsistency or contradictions; and if action taken was contrary to written policy or practice, or was a post-hoc fabrication. As to the second element, the Commission will weigh all available evidence bearing on whether the challenged policy or practice is justified by genuine issues of technical or economic feasibility. The Commission will find a violation of the digital discrimination of access rules where persons in a protected group were treated differently, and (1) there is no legitimate technical or economic justification for the difference in treatment, or (2) the proffered technical or economic justification is determined to be pretext for discrimination.
144.
145. Under the first element of our disparate impact analysis, the Commission will investigate whether an identified policy or practice of the covered entity is causing the discriminatory effect. We will also investigate the nature of the disparate impact that is being complained about or otherwise brought to our attention. As explained above, we will rely on information provided by the covered entity as well as specified data sources and, where necessary, statistical analyses to assess the extent of the differential impact on access to broadband internet access service. The Commission recognizes that any such differential impact on broadband access must be caused by a specific policy or practice of the entity under investigation.
146. Under the second element of our disparate impact analysis, the Commission will determine whether genuine issues of technical or economic feasibility support and give substantial, legitimate justification for the policy or practice that is being investigated. Third, the Commission will determine whether a less discriminatory alternative policy or practice was reasonably available and achievable and identify any such alternative policy or practice determined to have been reasonably available and achievable. If such an alternative was available to the covered entity, the policy or practice causing the differential impact will not be deemed justified by genuine issues of technical or economic feasibility, and the covered entity will be exposed to liability for digital discrimination of access. Under the Commission's investigative process, the factual and legal bases for any proposed liability determination are set forth in a notice of apparent liability and the respondent has an opportunity to respond to that notice before any final liability determination is made.
147.
148. We adopt a presumption of compliance for policies and practices that are in compliance with specific program requirements for the Broadband Equity, Access, and Deployment (BEAD) and Universal Service Fund (USF) high-cost programs. As noted below, we will consider whether other presumptions or safe harbor defenses are warranted going forward, including safe harbors or presumptions of compliance for policies and practices that comply with other federal broadband deployment programs that embody similar equity and nondiscrimination principles. These programs exist to remedy current inequities in broadband deployment and are consistent with section 60506 and our rules adopted today to facilitate equal access to broadband internet service. We will also accept a presumption of compliance for future broadband funding programs that account for digital discrimination of access rules. We decline to expand, however, presumptions or safe harbor defenses beyond these funding programs as some commenters urge. Although T-Mobile correctly identifies that the Commission must take into account issues of technical and economic feasibility, we disagree that for section 60506's language to have “real meaning,” the Commission must establish particular safe harbor defenses at this time. The approaches outlined above prove sufficient for protecting the rights of industry participants, and we do not expect that the Commission's self-initiated approach to investigations will inundate industry participants with meritless claims that they must expend substantial resources defending against. We also agree with other commenters that prematurely establishing a comprehensive list of safe harbor defenses may immunize covered entities against legitimate complaints or allegations, without commensurate reasons for doing so. We do, however, recognize that properly developed safe harbors may facilitate regulatory certainty and help focus our enforcement efforts in the future. Therefore, the Commission charges the CEDC with identifying, evaluating and making recommendations with respect to particular safe harbors, rebuttable presumptions or other similar bright-line guardrails distinguishing permissible from impermissible conduct under the rules we adopt today.
149.
150. As noted above, in order effectively to identify and combat potential violations of digital discrimination of access, the Enforcement Bureau will evaluate information provided to the Commission through the dedicated digital discrimination of access informal complaint pathway or through communications from state, local, or Tribal governments. The Enforcement Bureau, in coordination with the Consumer and Governmental Affairs Bureau, will review this information on a monthly basis and examine trends and geographic or demographic clusters, among other things, in the informal complaint filings to determine whether there is possible discrimination of access based on income level, race, ethnicity, color, religion, or national origin. Relevant evidence pertaining to purported differences in the covered elements of service will be especially probative. Where there is credible evidence suggesting that persons in a protected group were treated differently as the result of a policy or practice, the Enforcement Bureau, in its discretion, will use its authority to conduct investigations; issue Letters of Inquiry and subpoenas; conduct audits; inspect licenses and/or facilities; and collect information. Further, the Enforcement Bureau will use the full range of its enforcement options to enforce compliance, including the possibility of forfeiture penalties.
151.
152.
153. Under the process we adopt today, any covered entity may request an advisory opinion regarding the permissibility of its own policies and practices affecting access to broadband
154. Covered entities may submit requests for advisory opinions regarding both current and prospective policies and practices affecting broadband access. However, a request must pertain to a policy or practice that the requesting party is currently utilizing or intends to utilize, rather than a mere possible or hypothetical scenario. And as a general matter, the Enforcement Bureau will prioritize responses regarding prospective policies and practices intended to ensure compliance with our rules. The Enforcement Bureau will also prioritize requests involving substantial questions with no clear Commission precedent and/or subject matter involving significant public interest.
155. When submitting requests, covered entities must include all material information such that Commission staff can make a fully informed determination on the matter. Requesting parties will also be required to certify that factual representations made to the Enforcement Bureau are truthful, accurate, and do not contain material omissions. The Enforcement Bureau will have discretion to request additional information from the requesting entity and from other parties that might have relevant information or be impacted by the request. These might include, for example, impacted consumers or state, local, or Tribal governments.
156. Our advisory opinion process will affect covered entities and the Commission's enforcement actions as described below. First, the process is fully voluntary. No covered entity will be rewarded or penalized for seeking an advisory opinion, and the seeking (or not) of an advisory opinion will not itself influence any enforcement-related decision by the Commission. Second, in an advisory opinion, the Enforcement Bureau will issue a determination of whether or not the policy or practice detailed in the request complies with our rules implementing section 60506. If the Bureau determines that a policy or practice currently in effect violates our rules, it may provide in the opinion that it will not take enforcement action within a designated time period if the policy or practice is promptly corrected. Third, a requesting party may rely on an advisory opinion to the extent that its request fully and accurately describes all material facts and circumstances. Fourth, advisory opinions will be issued without prejudice to the Enforcement Bureau's or the Commission's ability to reconsider the questions involved, and rescind the opinion. Because advisory opinions would be issued by the Enforcement Bureau, they would also be issued without prejudice to the Commission's right to later rescind or revoke the findings. Should the Enforcement Bureau or Commission rescind a previously-issued advisory opinion, the requesting party must promptly discontinue use of the relevant policy or practice in order to remain in compliance with our rules.
157. The Enforcement Bureau will attempt to respond to requests for advisory opinions as efficiently as possible. We decline to establish firm deadlines, however, because we anticipate that the nature, complexity, and magnitude of requests might vary widely. Furthermore, it may take time for Commission staff to request any additional information needed to issue an opinion. Once issued, the Enforcement Bureau will make the advisory opinion available to the public. And to provide further guidance to industry and consumers, the Bureau will also release the initial request and any additional materials deemed necessary to contextualize the opinion. Entities may request confidential treatment of certain information, as provided under Commission rules.
158.
159.
160. We find that in determining when consumers' access to broadband internet service is “differentially
161. We find this scope of inquiry necessary to meet section 60506's equal access goals. First, we agree with commenters that we must have a flexible and non-exhaustive approach to comparing broadband internet access service, as quality standards and the criteria to measure quality will change over time. Second, adopting a comprehensive approach is necessary to meet section 60506's aims regarding equal access because “a series of terms and conditions may have [cumulative effects on access] even when each may be only slightly onerous on its own.” In other words, failing to have such a flexible approach could lead to our digital discrimination of access rules undermining Congress's intent for enacting section 60506 by “exacerbat[ing] digital discrimination [of access] rather than eliminating it.” Finally, as the record reflects that digital discrimination of access requires assessing a myriad fact patterns, including various technological and non-technological aspects of broadband service, the unique challenges that covered entities face to deploy to certain areas, and that broadband use may vary within local communities, we must adopt a scope of comparability that can holistically assess each claim. This analytical approach is consistent with the goal to ensure that “all people” benefit from broadband, including those in historically disadvantaged, Tribal, and rural communities. Our assessment of whether an “offered service” is of comparable quality to that available to other communities will turn on the
162. Our approach to comparability is consistent with established civil rights law. As explained, we will require that covered entities' policies and practices cause the identified disparities, consistent with the reasoning of
163. We disagree with commenters asserting that a determination of digital discrimination of access need not require the “robust causality” outlined in
164. We find that our flexible approach to comparability has several advantages when comparing the technical aspects of broadband. First, this approach is consistent with our definition of covered aspects of service. Second, this flexible approach will allow us to account for the “technical realities of provisioning” broadband when comparing technological aspects of services, such as network degradation and upgrades, by encompassing variables that can explain why network performance may be better or worse during certain periods. Third, it will also provide for comparing technical aspects of service that are present in certain technologies and not others, such as wireless service. Finally, this approach will allow our comparability analysis to adapt as technological preferences change over time and account for substitutability.
165. The record in this proceeding regarding the “substitutability” (and therefore comparability) of broadband service provided through different technologies is mixed. While some commenters argue that the Commission's focus should be on whether the services are comparable in practical terms because section 60506 is “technology neutral,” Public Knowledge cautions that “there are likely to be significant technical variations between different technologies (
166. We decline to establish at this time a prescriptive range or standard for comparing technical aspects of service. We are not persuaded by commenters who suggest that we must take a prescriptive approach to comparing technical aspects of service because greater certainty is necessary to promote deployment. There are simply too many potentially relevant technical variables to each claim to suggest that a prescriptive approach could be practically administered or complied with. We agree with commenters that the varying technologies and services used to deliver broadband “have different natures and capabilities and should thus be evaluated independently using relevant performance metrics.” Indeed, the court in
167. We decline to require network performance testing at this time. As the record is mixed on the issue and such testing is not necessary to accomplish our immediate objectives, we find that adopting a network testing requirement at this time would be premature. While Public Knowledge argues we should adopt network testing requirements similar to those in the universal service context, USTelecom opposes network testing because it is “unjustified as a matter of law, unnecessary, and unduly burdensome.”
168. We find that our flexible approach to comparability likewise has several advantages for comparing non-technical elements of broadband service. First, this approach is consistent with the inclusive scope of our definition of covered elements of service. Second, this flexible approach allows us to assess holistically whether and how non-technical aspects of service may vary based on protected status. Third, allowing comparison of a broad range of services, service elements, and terms of service allows the Commission to evaluate non-technical terms of service across covered entities.
169. We decline to establish a prescriptive standard to compare non-technical aspects of service. Commenters suggest that the Commission should provide different comparability standards when comparing non-technical aspects of service offered by the same covered entity and non-technical aspects of service offered by different covered entities. Commenters also suggest that for services offered by the same covered entity, we should establish that all customer groups in the same area must have the opportunity to receive the same service on the same terms and conditions. Adopting this assumption, however, would not give proper weight to the feasibility analysis we adopt for claims of digital discrimination of access. We agree that “comparing across providers on non-technical factors is considerably more challenging” because “there are compelling competition reasons for different providers to have different terms of service or approaches to customer service.” Nevertheless, our more flexible approach of considering all available information will allow the Commission to determine whether non-technical aspects of service across different covered entities in certain circumstances will provide useful evidence of reasonably available alternative practices.
170. Section 60506(a)(2) defines “equal access” as the equal opportunity to subscribe to an offered service of comparable service “in a given area . . . .” Thus, when determining whether challenged policies and practices differentially impact access to broadband based on the listed characteristics, to the greatest extent possible, we must compare the service quality and terms and conditions of service in defined geographic areas that are appropriate and reasonably comparable in all respects other than the demographic characteristic(s) giving rise to the digital discrimination of access claim.
171. We find that we must adopt a broad and flexible approach to assess geographic comparability in this context. This is consistent with our approach to comparing technical and non-technical aspects of service. And, as Congress did not define “a given area” in section 60506(a)(2) nor anywhere else in the statute, we agree with commenters that we should determine the appropriate “given area” for an alleged instance of digital discrimination of access on a case-by-case basis. The record reflects a variety of suggestions and relevant considerations for determining an appropriate geographic area for comparison of service quality and terms, providing that a flexible, case-by-case approach is both necessary and appropriate. First, commenters suggested a variety of geographic areas may be appropriate depending on the context, including the Nation as a whole, states, counties, metropolitan statistical areas, and census blocks, among others. Second, the record reflects that there are a variety of factors to consider to determine what area is appropriate to analyze a digital discrimination of access claim. For example, with respect to covered entities in particular, the record reflects that the geographic area that is appropriate may differ depending on the type of covered entity, such as a cable operator operating under a franchise agreement or an ILEC operating under a license area; the covered entity's size; or the type of broadband technology used to provide the service, such as fiber to the home or fixed wireless service. Third, though we find that we should compare similar geographic areas to assess claims of digital discrimination of access, the record also includes a variety of suggestions on how we should determine what the relevant geographic area is. For example, commenters suggest that we consider five factors to determine the correct area, while others generally suggest we use relevant geographic comparators, such as how close areas are to each other, changes in terrain, the cost of deployment, and whether the given area is rural or urban. As such, we will evaluate each claim holistically and determine what “given area” is appropriate based on the facts presented. Finally, our flexible, case-by-case approach to determining geographic comparability is consistent with our approach to determining feasibility. In both determinations, we adopt a flexible approach to account for the challenges of providing service to particular geographic areas, such as topography, population density, and other potential technical and economic barriers to providing broadband service.
172. We agree with Verizon that those filing digital discrimination of access complaints should, if possible, identify the given area where the alleged digital discrimination of access occurs. But given that many informal complaints may be filed by members of the public based on their own experiences with broadband access and have little or no information as to how widely their experiences might be shared by others, we will not require precision in this regard. If the informal complaint gives
173. We will avail ourselves of all relevant Commission and external data collections to help us evaluate when access to broadband has been differentially impacted based on a protected characteristic. As in the record compiled in response to the
174. With particular respect to Commission data collections, the record reflects there could be many productive ways for us to use them both individually and in conjunction with other sources of data. Commenters suggest, for example, that we could analyze data from Commission broadband maps, broadband consumer labels, the Affordable Connectivity Program, the Lifeline program, or the Consumer Complaint Center to identify possible violations of our rules, identify possible subjects of investigation, or highlight existing disparities in deployment. Commission data collections coupled with data collected outside the Commission could also provide helpful insight. For example, comments advise that cross referencing and overlaying various data sets, using state broadband maps or Census Bureau information in conjunction with Commission maps, or comparing information submitted to the Commission, state, or local agencies with information a covered entity publishes regarding their service, could also help the Commission assess digital discrimination of access claims.
175. The Commission may also require new data collection in the future that could be helpful to analyzing comparability. As explained in the accompanying
176. We decline at this time to modify current Commission data collections or undertake new data collections. Various commenters suggest that we modify Commission data collections to aid our analysis of possible digital discrimination of access, such as by undertaking a new data collection under the Affordable Connectivity Program to allow for disaggregation of program participants by demographic group, or modifying broadband maps so consumers could more easily determine if they have “comparable” broadband service at their street address. Commenters also suggest we should collect new data to compare advertised and charged pricing. Since the Commission currently has at its disposal a number of data collections and potential data sources that may assist in our analysis of digital discrimination of access claims, it is unclear whether a new data collection's burdens would outweigh its potential benefits. As we gain greater experience investigating digital discrimination of access claims, we will evaluate the adequacy of current data collections and other data sources and will determine whether new data collections or modifications of existing data collections might be warranted. We note that commenters disagree as to the authority that broadband consumer labels provide for imposing a new BDC.
177. At this time, we decline to take action in the other policy areas identified in the record where there is possible intersection with the issues we address in this proceeding. In the
178. Although we are not adopting any other record proposals at this time, we note that states and localities can rely on several resources made available to them to address digital equity, such as the Infrastructure Act's broadband funding for states, the National Broadband Map, and the Broadband Funding Map. First, we recommend that states and localities tap in fully to the funding allocated to states and localities to address broadband equity. On June 26, 2023, NTIA announced how it allocated funding to all 50 states, the District of Columbia, and five U.S. territories to deploy affordable, reliable high-speed internet service to everyone in America. States and other jurisdictions will use funding from the Infrastructure Act's $42.45 billion Broadband Equity, Access, and Deployment (BEAD) program to administer grant programs within their borders. The BEAD funding will be used to deploy or upgrade broadband networks to ensure that everyone has access to reliable, affordable, high-speed internet service. Once deployment goals are met, any remaining funding can be used to pursue eligible access-, adoption-, and equity-related uses. We strongly encourage states and other jurisdictions to make full use of the available BEAD funding in order to expand broadband access in hard-to-build areas, increase broadband affordability, and strengthen digital literacy within their respective borders. While these issues are distinct from digital discrimination of access as we have defined it, full utilization of BEAD funding might reduce the instances in which consumers believe they are experiencing digital discrimination of access and thus reduce the burdens on industry participants and the Commission in addressing digital discrimination of access claims.
179. Second, in addition to the CEDC recommendations discussed below, we recommend that states and localities utilize the National Broadband Map to identify unserved and underserved communities. We find, based on the record, that states and localities could benefit from available resources to help them identify unserved and underserved communities and develop solutions to address digital discrimination of access. The National Broadband Map displays where broadband internet services are and are not available across the country. The map is one step in an ongoing, iterative process that will involve the submission of data by providers, challenges from third parties and the public, and verifications and audits by the Commission. The maps produced through this process will continually improve and refine the broadband availability data relied upon by the Commission, other government agencies, and the public, as required by the Broadband DATA Act. An accurate map will help identify the unserved and underserved communities most in need of expanded access to broadband internet access service.
180. Third, we recommend that states and localities use the Broadband Funding Map to gain insight into the broadband infrastructure deployment projects funded by the Federal government throughout the United States and Territories. The Broadband Funding Map overlays the availability data reported on the National Broadband Map with the funding data to show locations receiving federal program support. Finally, we decline at this time to establish an Office of Civil Rights within the Commission, as several commenters have urged us to do. We recognize the potential benefits of establishing such an office, however, and therefore seek further focused comment in a
181. As proposed in the
182. As we explained in the
183. We strongly encourage states and localities to implement these recommendations as a starting point, as we find that they can serve as an effective framework to advance digital equity. The record reflects widespread support for adopting both sets of recommendations. We agree with the Texas Coalition of Cities that the CEDC report's “Best Practices to Advance Digital Equity for State and Localities” recommendations appropriately focus on broadband and device programs, disseminate information and increase participation in federal broadband affordability programs, integrate existing social service supports with broadband services and create digital navigator programs where feasible. And as the U.S. Chamber of Commerce highlights, states and localities can adopt these model policies and practices at their discretion. Local Governments cautioned that while we should adopt the CEDC Report recommendations, we should also recognize the potential limits of states and local authorities to adopt those policies, in-part due to a lack of resources. While states and localities may still face potential limitations in implementing these recommendations, we envision that the aforementioned funding will be a good starting point for jurisdictions to begin taking the necessary steps to prevent and eliminate digital discrimination of access. Lastly, as noted by USTelecom, our approach affords us the opportunity to study the effects of implementation of those best practices by states and localities and determine whether further action on this front is warranted. We acknowledge that some states and localities may currently lack the necessary resources or authority to adopt and implement the CEDC report recommendations, but we note that the recommendations can be adopted and implemented at any time at the discretion of the governmental entity involved, such as when additional authority is provided or when additional resources are made available.
184. We disagree with arguments submitted by several commenters that we should refrain from adopting the recommendations in the CEDC report at this time in part due to the limited representation of local and state officials in the CEDC. We note that the CEDC's working group members did include some state and local representation and its Report was unanimously adopted. In addition, the CEDC members were diligent in their research, and they interviewed several local and state officials to develop their recommendations. The members conducted more than 30 virtual interviews and relied upon data and research by scholars, organizations, and state and local governments that have driven digital equity and inclusion scholarship. The members also analyzed research publications and other publicly available documents issued by a variety of government agencies, academics and think tanks, and advocacy organizations to help inform their development of best practices and model policies to prevent digital discrimination and to promote digital equity. Among other sources, members reviewed federal guidance programs and broadband adoption initiatives, including partnerships between state and local governments and internet service providers in response to the pandemic. While we understand the concerns with the limited representation from state and local governments, we find unpersuasive assertions from some commenters that the recommendations from the CEDC report therefore should not be adopted on this basis. The methodology used to develop both sets of recommendations took into consideration the input and expertise from states and localities to better understand their experiences and lessons learned so that other jurisdictions might adopt and implement their successful strategies and methodologies and avoid their mistakes. We encourage state and local officials responsible for broadband expansion efforts to monitor the proceeding and engage with the rechartered CEDC.
185.
186.
187.
188.
189. Accordingly,
190.
191.
192. The Report and Order takes an important step to promote equal access to broadband for all people in the United States by adopting rules pursuant to section 60506 of the Infrastructure Investment and Jobs Act (Infrastructure Act) that establish a balanced framework to facilitate equal access to broadband internet service by preventing digital discrimination of access. Many households in the United States lack equal access to broadband, with disparities that cross income, demographic, and geographic lines, including rural and tribal areas. Among households with broadband access, mid-sized communities, urban, and rural areas are all impacted by inferior service offerings. The
193. First, the
194. There were no comments filed that specifically addressed the proposed rules and policies presented in the IRFA or otherwise raised issues addressing the specific concerns of, and impact on small entities. Nonetheless, the Commission considered the potential impact of the rules proposed in the IRFA on small entities and took steps where appropriate and feasible to reduce the compliance burden for small entities in order to reduce the economic impact of the rules enacted herein on such entities.
195. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.
196. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
197.
198. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.
199. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall
200.
201. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 4,590 providers that reported they were engaged in the provision of fixed local services. Of these providers, the Commission estimates that 4,146 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.
202.
203.
204.
205.
206.
207.
208.
209.
210.
211.
212. The
213. In reviewing the record, commenters expressed concern about obstacles faced by small providers. However, we adopt a flexible approach to assessing the technical and economic feasibility of a covered entity's practices, and will review alleged digital discrimination of access on a case-by-case basis. The Commission does not have sufficient information on the record to quantify the cost of compliance for small entities. The Commission, however, anticipates the approaches it has taken to implement the requirements will have minimal implications because its approach to investigations accounts for variations among provider types and industry, and will tailor its interactions with such small entities to account for these burdens.
214. The RFA requires an agency to provide “a description of the steps the agency has taken to minimize the significant economic impact on small entities . . . including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.”
215. The
216. In reaching its final conclusions in this proceeding, the Commission considered a number of alternatives, such as addressing digital discrimination of access issues raised either in other proceedings, or in the current record, that could potentially impact small businesses. For example, we considered whether to establish an Office of Civil Rights within the Commission, as several commenters have urged us to do, however we will make this assessment outside the scope of this proceeding as a matter of internal structure, organization, and staffing. Additionally, the Commission determined that, at this time, its primary focus is to implement effective rules to address digital discrimination of access by the statutory deadline set by Congress, but will continue to consider the thoughtful proposals not addressed in other sections of the
217. We considered additional alternatives that may impact small entities, including how we define terms used in our digital discrimination analysis. For example, we declined to adopt specific standards or definitions for different types of providers because we want these rules to maintain the flexibility needed to address providers of various sizes, difference technologies, and the unique circumstances of each covered entity, including small businesses. We also declined proposals to define digital discrimination in a manner that considers differences in the profitability of serving one area over another, because we weigh profitability separately from technical or economic feasibility. We did not include issues pertaining to personal data that is processed by an algorithm in the definition of digital discrimination because section 60506 is not directly related to those concerns. To eliminate potential loopholes in complying with these rules, we retain the term “genuine” as part of our definition of digital discrimination to ensure that covered entities cannot rely upon unsupported assertions of technical or economic feasibility to refute claims of digital discrimination of access.
218. The Commission will send a copy of the
Communications, Telecommunications, Organizations and Functions, Equal Access to Justice, Investigations, Penalties, Digital Discrimination, Equal access.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 0, 1, and 16 as follows:
47 U.S.C. 151, 154(i), 154(j), 155, 225, 409, and 1754, unless otherwise noted.
(a) * * *
(30) Resolve complaints alleging violations of digital discrimination of access pursuant to 47 CFR part 16.
47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note; 47 U.S.C. 1754, unless otherwise noted.
(a) * * *
(8) Violated section 60506 of the Infrastructure and Jobs Act of 2021 or 47 CFR part 16.
The addition reads as follows:
* * * In addition, for the purpose of informal complaints submitted under 47 CFR part 16, the Commission's informal complaint procedures will apply to all covered entities as defined in 47 CFR 16.2.
47 U.S.C. 1754, unless otherwise noted.
The purpose of this part is to implement section 60506 of the Infrastructure Investment and Jobs Act, 135 Stat. 429 (2021) (Infrastructure Act) that requires the Commission to adopt rules to facilitate equal access to broadband internet access service, taking into account the issues of technical and economic feasibility presented by that objective, including:
(a) Preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin; and
(b) Identifying necessary steps for the Commission to take to eliminate discrimination described in this part.
(1) Broadband internet access service providers;
(2) Contractors retained by, or entities working through partnership agreements or other business arrangements with, broadband internet access service providers;
(3) Entities facilitating or involved in the provision of broadband internet access service;
(4) Entities maintaining and upgrading network infrastructure; and,
(5) Entities that otherwise affect consumer access to broadband internet access service.
(1) Deployment of broadband infrastructure, network upgrades, and network maintenance;
(2) Service quality components and the terms and conditions on which broadband internet access service is provided, including but not limited to speeds, capacities, latency, data caps, throttling, pricing, promotional rates, imposition of late fees, opportunity for equipment rental, installation time, contract renewal terms, service termination terms, and use of customer credit and account history;
(3) Marketing, advertisement, and outreach; and
(4) Technical service, onsite service, and other provision of customer service.
(a) This section provides the Commission's interpretation of actions that constitute digital discrimination of access under 47 U.S.C. 1754.
(b) It shall be unlawful for any broadband provider, or covered entity as described in this part, to adopt, implement or utilize policies or practices, not justified by genuine issues of technical or economic feasibility, that differentially impact consumers' access to broadband internet access service based on their income level, race, ethnicity, color, religion, or national origin or are intended to have such differential impact.
(a)
(b)
(a) Where the Commission determines that a covered entity's policy or practice is motivated by discriminatory intent on the basis of income level, race, ethnicity, color, religion, or national origin, the entity will not be found liable for digital discrimination of access if the policy or practice is justified by genuine issues of technical or economic feasibility.
(b) Where the Commission determines that a covered entity's policy or practice has discriminatory effects on the basis of income level, race, ethnicity, color, religion, or national origin, the entity will not be found liable for digital discrimination of access if the policy or practice is justified by genuine issues of technical or economic feasibility.
(c) Covered entities have the burden of proving to the Commission that a policy or practice under investigation is justified by genuine issues of technical or economic feasibility. This may include proof that available, less discriminatory alternatives were not reasonably achievable at the time the policy or practice was adopted, implemented, or utilized because of genuine technical or economic constraints.
(d) Genuine issues of technical or economic feasibility must be demonstrated by a preponderance of the evidence, with the covered entity providing the Commission all of the empirical evidence and documentation needed to substantiate the technical or economic justifications for the policy or practice under investigation.
(e) The Commission will determine on a case-by-case basis whether genuine issues of technical or economic feasibility justified the adoption, implementation, or utilization of a policy or practice that was motivated by discriminatory intent on the basis of income level, race, ethnicity, color, religion, or national origin, or that caused discriminatory effects on one or more of these bases.
Any allegation that a covered entity has violated the regulations in this part may be referred to the Commission's Enforcement Bureau.
(a)
(2) The Enforcement Bureau may, in its discretion, determine whether to issue an advisory opinion in response to a particular request or group of requests and will inform each requesting entity, in writing, whether the Bureau plans to issue an advisory opinion regarding the matter in question.
(3) Requests for advisory opinions must relate to a current or proposed policy or practice that the requesting party intends to pursue. The Enforcement Bureau will not respond to requests if the same or substantially the same conduct is the subject of a current government investigation or proceeding, including any ongoing litigation or open rulemaking at the Commission.
(4) Requests for advisory opinions must be accompanied by all material information sufficient for Enforcement Bureau staff to make a determination on the proposed conduct for which review is requested. Requesters must certify that factual representations made to the Bureau are truthful and accurate, and that they have not intentionally omitted any information from the request. A request for an advisory opinion that is submitted by a business entity or an organization must be executed by an individual who is authorized to act on behalf of that entity or organization.
(5) Enforcement Bureau staff will have discretion to ask parties requesting opinions, as well as other parties that may have information relevant to the request or that may be impacted by the proposed conduct, for additional information that the staff deems necessary to respond to the request. Such additional information, if furnished orally or during an in-person conference with Bureau staff, shall be promptly confirmed in writing. Parties are not obligated to respond to staff inquiries related to advisory opinions. If a requesting party fails to respond to a staff inquiry, then the Bureau may dismiss that party's request for an advisory opinion. If a party voluntarily responds to a staff inquiry for additional information, then it must do so by a deadline to be specified by Bureau staff. Advisory opinions will expressly state that they rely on the representations made by the requesting party, and that they are premised on the specific facts and representations in the request and any supplemental submissions.
(b)
(1) Issue an advisory opinion that will state the Bureau's determination as to whether or not the policy or practice detailed in the request complies with the Commission's rules implementing section 60506 of the Infrastructure Act;
(2) Issue a written statement declining to respond to the request; or
(3) Take such other position or action as it considers appropriate. An advisory opinion states only the enforcement intention of the Enforcement Bureau as of the date of the opinion, and it is not binding on any party. Advisory opinions will be issued without prejudice to the Enforcement Bureau or the Commission to reconsider the questions involved, or to rescind or revoke the opinion. Advisory opinions will not be subject to appeal or further review.
(c)
(d)
(e)