[Federal Register Volume 84, Number 221 (Friday, November 15, 2019)]
[Rules and Regulations]
[Pages 62454-62464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24762]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 206

[Docket ID FEMA-2008-0005]
RIN 1660-AA18


Disaster Assistance-Federal Assistance to Individuals and 
Households

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

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SUMMARY: Under the authority of section 408 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act, the Federal Emergency 
Management Agency provides financial assistance to individuals and 
households after a Presidentially-declared major disaster or emergency. 
This rule finalizes, without change, current interim regulations which 
establish the requirements and procedures for the Individuals and 
Households Program.

DATES: This rule is effective December 16, 2019.

FOR FURTHER INFORMATION CONTACT: Mark Millican, FEMA, Individual 
Assistance Division, 500 C Street SW, Washington, DC 20472-3100, 
(phone) 202-212-3221 or (email) FEMA-IA-Regulations@fema.dhs.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 408 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (Stafford Act) provides the Federal Emergency Management 
Agency (FEMA) the authority to administer the Individuals and

[[Page 62455]]

Households Program (IHP). See 42 U.S.C. 5174. Through the IHP, FEMA 
provides financial and/or direct assistance to help survivors recover 
from Presidentially-declared emergencies and major disasters. This help 
may be in the form of Housing Assistance and/or Other Needs Assistance, 
which includes personal property losses, medical, dental, funeral, 
child care, transportation, and other miscellaneous expenses.
    Specifically, FEMA provides the following types of Housing 
Assistance:
    Temporary Housing: Financial assistance is available to rent a 
different place to live for a limited period of time. If housing 
resources are not available and the applicant is unable to make use of 
FEMA-provided financial assistance, FEMA may provide direct assistance 
in the form of a manufactured housing unit.
    Housing Repair: Financial assistance is available to homeowners to 
repair disaster damage to their primary residence. Assistance is only 
available to repair damage that is not covered by insurance. The goal 
is to make the damaged home safe, sanitary, and functional.
    Housing Replacement: Financial assistance is available to 
homeowners to replace their primary residence if it was destroyed in 
the disaster. Assistance is only available for damage that is not 
covered by insurance.
    Permanent and Semi-Permanent Housing Construction: In exceptional 
circumstances, FEMA is authorized to provide permanent and semi-
permanent housing construction. If FEMA exercises its discretion to 
offer this form of disaster assistance, FEMA may provide financial 
assistance for the construction of a home or may construct the new 
permanent or semi-permanent housing unit for an individual or 
household. FEMA may provide this type of assistance only in insular 
areas outside the continental United States and in other locations when 
alternative housing resources are not available and no other types of 
temporary housing assistance are available, feasible, or cost-
effective. Assistance is provided only for damage that is not covered 
by insurance.
    44 CFR part 206, subparts D and F regulate the types of IHP 
assistance, the eligibility requirements for assistance, and the 
procedures for obtaining assistance.
    On September 30, 2002, FEMA published an interim final rule in the 
Federal Register. See 67 FR 61446.\1\ The interim final rule 
implemented new statutory authority provided from section 206 of the 
Disaster Mitigation Act of 2000, Public Law 106-390 (DMA 2000). Section 
206 of the DMA 2000 consolidated and streamlined the provision of 
assistance to individuals, which FEMA previously administered under two 
separate assistance programs: (1) The Temporary Housing Assistance 
Program and (2) the Individual and Family Grant Program. Specifically, 
the interim final rule provided a framework for the new consolidated 
IHP in 44 CFR 206.110-206.120, as follows:
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    \1\ FEMA published a correction to the interim final rule on 
October 9, 2002. See 67 FR 62896.
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     Section 206.110 provided a broad overview of the new 
consolidated program.
     Section 206.111 provided the definitions for terms used 
throughout sections 206.110-120.
     Section 206.112 provided information on the registration 
period for the IHP.
     Section 206.113 provided the eligibility factors that 
individuals must meet in order to qualify for the IHP.
     Section 206.114 provided criteria for continued assistance 
in the IHP.
     Section 206.115 provided the appeals process and protocols 
for the IHP.
     Section 206.116 provided information on when and how FEMA 
would seek recovery of funds from IHP recipients.
     Section 206.117 provided information on the types of 
housing assistance as well as the eligible costs that are covered under 
the IHP.
     Section 206.118 provided the procedures that FEMA would 
follow if FEMA decides to sell temporary housing units that were 
purchased under 206.117(b)(1)(ii), temporary housing, or direct 
housing.
     Section 206.119 provided the process for individuals to be 
eligible to receive financial assistance to address other disaster-
related needs.
     Finally, Section 206.120 provided the process and options 
for States when delivering financial assistance to address other 
disaster-related needs.
    On April 3, 2009, FEMA published a final rule that provided 
technical, organizational, and conforming amendments to Title 44 of the 
CFR to reflect the current organization and procedures of FEMA. See 74 
FR 15328. The final rule had no substantive effect on the regulated 
public and corrected organization names and addresses, updated 
Information Collection Approval Numbers issued by the Office of 
Management and Budget (OMB), removed the text of an Executive Order 
that was repealed, and made other technical and editorial corrections 
throughout Title 44. Specifically, in 44 CFR 206.110, 206.111, 206.112, 
206.115, 206.117, and 206.120, FEMA updated the titles of various FEMA 
leadership positions as well as updated the term ``FEMA Office of 
Inspector General'' to ``DHS Office of Inspector General'' to reflect 
that FEMA became a component of the Department of Homeland Security in 
2003.
    On July 30, 2012, FEMA published a notice of proposed rulemaking 
(NPRM), which addressed the public comments received on the 2002 
interim final rule related to housing repair and replacement, the 
provisions for which are found at 44 CFR 206.117. See 77 FR 44562. In 
addition, FEMA proposed four separate sets of changes in the NPRM. 
First, FEMA proposed revisions to the interim rule to respond to public 
comments received on the 2002 interim rule. Second, FEMA proposed 
changes that were intended to restate the existing requirements more 
clearly and in greater detail without substantively changing the 
underlying requirements. Third, consistent with statutory amendments in 
the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), FEMA 
proposed removing the housing repair and replacement subcaps which 
previously limited housing repair assistance to $5,000 and housing 
replacement assistance to $10,000. Finally, also consistent with 
statutory amendments in PKEMRA, FEMA proposed adding the term ``semi-
permanent'' and removing the term ``remote'' with respect to the 
eligibility requirements for housing construction pursuant to PKEMRA.
    On November 7, 2013, FEMA published a final rule that finalized the 
NPRM without change. See 78 FR 66852.

II. FEMA's Response to 2003 IHP Implementation Review Report

    In February 2003, during the comment period for the Interim Final 
Rule, FEMA held a meeting with representatives from the five States who 
first implemented the IHP to identify the best practices and problems 
or issues that needed corrective actions. An IHP Implementation Review 
Report was prepared, which outlined the issues discussed and 
recommendations. None of the issues discussed were specifically 
pertinent to this rulemaking.
    The general topics discussed and the recommendations were related 
to:
    1. The business rules and functionality for the National Emergency 
Management Information System (NEMIS), which FEMA uses to

[[Page 62456]]

process applications for disaster assistance;
    2. Internal and external communications, to include FEMA Helpline 
numbers and printed Applicant Guides;
    3. Addressing unmet needs of disaster survivors through referrals 
to voluntary agencies;
    4. Financial and grants management regarding internal billing 
processes and procedures;
    5. Training needs for field staff administering the program; and
    6. Policy development.
    All of these topics focused primary on procedural and other aspects 
of IHP that were beyond the scope of the interim final rule and were 
addressed in separate actions, such as developing policies, training 
courses, fact sheets and handouts, or standard operating procedures. 
Therefore, FEMA is not addressing these issues and recommendations in 
this final rule.

III. Discussion of Comments Received on 2002 Interim Final Rule

    In response to the 2002 interim final rule, FEMA received written 
comments from five States: Texas, Maine, Washington, New York, and 
Virginia. This section describes the comments received, as well as 
FEMA's responses to the public's input.

Comments Regarding Duplication of Benefits (44 CFR 206.110(h))

    Section 206.110(h) in the interim final rule addresses duplication 
of benefits. Under this section, FEMA will not provide assistance under 
IHP when any other source has already provided such assistance or when 
such assistance is available from any other source. The section also 
states that in the instance of insured applicants, FEMA will provide 
assistance only when:
    1. Payment of the applicable benefits are significantly delayed;
    2. applicable benefits are exhausted;
    3. applicable benefits are insufficient to cover the housing or 
other needs; or
    4. housing is not available on the private market.
    Three State agencies (from Washington, Virginia, and Maine) 
commented on this section. All three State agencies commented that the 
term ``significantly delayed'' should be defined in the regulation so 
that it is applied consistently and equitably and to avoid confusion 
and undue hardship while the term is being debated at the time of a 
disaster. The commenters stressed that the definition should be in the 
regulation as opposed to a policy.
    Two State agencies (Washington and Maine) commented that if the 
estimated damage is below the deductible of the insurance policy, the 
applicant should not have to wait for a formal denial from the 
insurance company in order for FEMA to process the application, 
especially since insurance companies are slow to provide damage reports 
and produce decisions on eligibility. Rather, the regulation should 
allow an applicant to certify to FEMA that the estimated damage is 
below the maximum allowable repair assistance award and to provide a 
copy of the hazard insurance declaration page that clearly shows the 
damage is below the insurance deductible. The commenters proposed that 
if at the time of disaster the applicant estimates the damage to be 
below the insurance deductible, the applicant should be allowed to 
produce a copy of the declaration page or policy at the time of 
inspection in order to receive immediate assistance. In addition, two 
State agencies (Washington and Virginia) recommended modifying the 
regulation text to provide assistance to applicants immediately if they 
produced an insurance declaration page as proof of the limits of the 
policy.
    In support of its comment, a Washington State agency described how, 
following an earthquake affecting 22 counties in that State, most of 
the homes had less than $10,000 damage, and since the homes were valued 
in excess of $100,000, the damage was below the earthquake insurance 
deductible of 10 percent. The commenter described how the applicant had 
to send in an insurance denial before FEMA would process the 
application and that later, FEMA changed its policy and asked the 
applicant to send in the declaration page of the earthquake policy, if 
damage was below $10,000. The commenter stated that this further 
confused the affected public. The commenter concluded that when 
applicants have to wait for an insurance denial before FEMA will 
consider their application, the applicants assume falsely that they 
would have been better off if they had not had the insurance, which has 
the unintended consequence of applicants dropping their insurance 
coverage.
    Finally, the commenters on the insurance coverage provision also 
suggested that if FEMA makes the requested changes, FEMA should also 
make conforming changes to 44 CFR 206.113(a).

FEMA's Response

    The three State agencies that commented that the term 
``significantly delayed'' should be defined in the regulation were in 
error. The term ``significantly delayed'' was defined in the interim 
final rule at 44 CFR 206.111 and used at 44 CFR 206.110(h) and 44 CFR 
206.113(a)(3). The term ``significantly delayed'' is defined in the 
interim final rule as more than 30 days.
    With respect to the request that FEMA amend the regulation to allow 
for an applicant to certify to FEMA that the estimated damages are 
below the maximum allowable repair assistance award and to provide a 
copy of the hazard insurance declaration page that clearly shows the 
damage is below the insurance deductible, FEMA has concluded that 
applicants are not qualified to objectively estimate the total cost of 
damages, and therefore are not qualified to certify that the estimated 
cost is below their deductible. Therefore, FEMA did not make any 
changes based on this comment.
    In addition, prior to DMA 2000, FEMA accepted declaration pages 
from applicants to support their claims for assistance. However, an 
unintended consequence of this was that applicants were asking their 
insurance companies for a copy of their declaration page. In turn, the 
insurance companies classified the applicants' inquiries as claims 
against their policies, so in some cases, the applicants' insurance 
premiums were increased. After DMA 2000, FEMA made a policy 
determination to stop accepting declaration pages from applicants to 
support their claims for assistance. For this reason as well, FEMA did 
not make any changes based on this comment.
    With respect to the comment from the Washington State agency, FEMA 
notes that if the applicant has filed a claim with their insurance 
provider and, through no fault of their own, the coverage has been 
delayed for 30 days or more and the person has agreed to pay FEMA back 
when their insurance proceeds arrive, FEMA can provide assistance up to 
the maximum IHP award. For fiscal year 2020, the IHP maximum award is 
$35,500 for housing assistance and $35,500 for other needs assistance. 
84 FR 55323, Oct. 16, 2019; see 44 CFR 206.113(a)(3). In addition, if 
the applicant's insurance proceeds are less than what FEMA can 
authorize and the proceeds are insufficient to cover the necessary 
expenses or serious needs, FEMA can provide the difference up to the 
maximum award. See 44 CFR 206.113(a)(4). Otherwise, FEMA would be 
competing with the applicant's insurance company to see which entity 
could issue assistance the fastest. FEMA has to allow the insurance 
company time to process the applicant's claim.
    FEMA does not agree that applicants would have been better off if 
they had

[[Page 62457]]

not had insurance. The Stafford Act only allows FEMA to issue a maximum 
amount of assistance, which is usually much less than the amount of 
insurance coverage for which an applicant could insure their dwelling. 
IHP provides financial assistance and, if necessary, direct assistance 
to eligible individuals and households who, as a direct result of an 
emergency or major disaster, have uninsured or under-insured necessary 
expenses and serious needs, and are unable to meet such expenses or 
needs through other means. IHP's purpose is not to make an applicant 
``whole again.'' FEMA's assistance is intended to help applicants on 
the road to self-sufficiency. Therefore, FEMA did not propose any 
changes to the regulations based upon this comment.

Comments Regarding Conditions of Ineligibility (44 CFR 206.113(b))

    The interim final rule at 44 CFR 206.113(b)(9) indicates business 
losses are ineligible for IHP grant assistance. One State (Texas) 
commented that there should be an exception to the rule forbidding IHP 
grant assistance for business losses. The State proposed that the 
exception should allow IHP to provide grants for the loss of uninsured 
work tools for self-employed individuals who are denied loan assistance 
from the U.S. Small Business Administration (SBA) for financial 
reasons. The commenter noted that under current regulations, self-
employed individuals who suffer work tool loss, and are ineligible for 
SBA loans, receive no assistance from IHP for this significant loss, 
and therefore, they fall through the cracks of the recovery program.

FEMA's Response

    Section 408(e) of the Stafford Act limits financial assistance to 
medical, dental, child care, funeral expenses, personal property, 
transportation, and other necessary expenses or serious needs resulting 
from the major disaster. Financial assistance for ``personal property'' 
losses provides assistance to repair or replace personal property 
damaged or destroyed due to a disaster.\2\ Financial assistance for 
``other necessary expenses'' provides assistance to households with 
certain disaster-caused miscellaneous expenses; eligible items must be 
purchased or rented after the incident to assist with the applicant's 
disaster recovery.\3\ FEMA does allow for assistance to replace 
essential tools, supplies, and equipment owned pre-disaster that are 
required by an employer as a condition for employment.\4\ If a self-
employed individual's tools are destroyed due to a disaster, FEMA 
considers the tools as property of the business and not the individual 
and thus a business loss. The Small Business Administration Office of 
Disaster Assistance's provides low interest disaster loans to 
businesses of all sizes, private non-profit organizations, homeowners, 
and renters to repair or replace real estate, personal property, 
machinery and equipment, inventory and business assets that have been 
damaged or destroyed in a declared disaster.\5\ Section 312 of the 
Stafford Act prohibits duplication of benefits for losses incurred as a 
result of a major disaster. Since the SBA provides assistance for 
business related losses, FEMA structured the IHP to provide assistance 
to individuals and households and not businesses, and thus FEMA chose 
to not make any changes to the regulations based on this comment.
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    \2\ FEMA, Individuals and Households Program Unified Guidance, 
FP 104-009-3, September 30, 2016, at 105, available at https://www.fema.gov/media-library/assets/documents/124228.
    \3\ Id. at 102.
    \4\ Id. at 107.
    \5\ Small Business Administration, A Reference Guide to the SBA 
Disaster Loan Program, May 2015, at 1, available at https://www.sba.gov/sites/default/files/files/SBA_Disaster_Loan_Program_Reference_Guide.pdf.
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Conditions Regarding Appeals (44 CFR 206.115(b))

    Section 206.115 allows for applicants to appeal any determination 
of eligibility under 44 CFR part 206, subpart D. Section 206.115(b) 
provides that ``appeals must be in writing and explain the reason(s) 
for the appeal.'' One State (Washington) recommended that FEMA publish 
an email address for use in filing appeals, as this would expedite the 
appeals process, would reduce the possibility of lost regular mail, and 
would speed up the process of passing misdirected appeals to the right 
agency.

FEMA's Response

    FEMA does not provide the address in 44 CFR 206.115(b) since the 
address to submit appeals may change and FEMA would not want applicants 
to have to wait for the publication of a document in the Federal 
Register before they would have the updated address to submit their 
appeal. Instead, FEMA provides applicants with the address that they 
may submit an appeal to in FEMA's denial letter. FEMA does not provide 
an email address in the denial letter, as FEMA does not have a secure 
system in place that would allow appeals to be emailed to FEMA. The 
only secure server FEMA has in place that can accommodate applicant 
appeals is the system handling applications for FEMA disaster 
assistance. If an applicant creates an online disaster assistance 
account, they can submit an appeal ``electronically'' by uploading 
appeal documentation into their file.

Comments Regarding Moving and Storage (44 CFR 206.119(c)(5))

    The proposed rule, in 44 CFR 206.110(c)(5), provided for financial 
assistance for necessary expenses and serious needs related to moving 
and storing personal property ``away from the threat of damage 
including the evacuation'' of such property. In contrast, the interim 
final rule, in 44 CFR 206.119(c)(5), provided for financial assistance 
for necessary expenses and serious needs related to moving and storing 
personal property ``to avoid additional disaster damage.'' Four State 
agencies (Virginia, New York, Texas, and Washington) commented on this 
provision, stating that financial assistance should be provided for 
pre-disaster preventative moving and storage and not only for moving 
and storage of property after a disaster has occurred. Several 
commenters noted that the restriction on paying for pre-disaster moving 
and storage was inconsistent with the Federal and State philosophy of 
promoting and supporting hazard mitigation measures and that the people 
should be encouraged to move personal property out of flood zones, if 
they have time to do so. One commented that it was most desirable that 
proactive actions be taken to avoid serious harm or injury to person or 
property.
    The commenters stated that the cost of moving and storage was much 
less than the cost of replacing personal property. One commented that 
the concept of not paying for taking preventive measures to reduce the 
potential loss is in direct contrast to the ``insurance model,'' where 
individuals who sustain losses or may incur additional losses are 
required to take necessary and effective action to prevent or mitigate 
further losses and that the reimbursement of expenses incurred to 
minimize prospective losses prior to or during a disaster would seem to 
be prudent and should be encouraged and rewarded. The commenter stated 
that it was inconsistent to not reimburse an applicant for moving items 
out of harm's way prior to a disaster and then make them purchase 
mandatory flood insurance coverage for items that could have been 
safeguarded.

[[Page 62458]]

FEMA's Response

    Section 408(e)(2) of the Stafford Act provides that financial 
assistance may be provided to address personal property, 
transportation, and other necessary expenses or serious needs resulting 
from the major disaster. FEMA interpreted Section 408(e)(2) in 44 CFR 
206.119(c)(5) to provide financial assistance under ONA to pay for the 
cost of storage of personal property while repairs are being made to 
the primary residence and the cost of returning the property to the 
applicant's primary residence. FEMA has provided further guidance that 
eligible expenses for moving and storage assistance include the 
following expenses: Costs for commercial moving labor, moving truck 
rental fee, fuel for the rental vehicle, costs for tape and boxes, 
storage unit fees, and associated sales taxes.\6\
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    \6\ FEMA, Individuals and Households Program Unified Guidance, 
FP 104-009-3, September 30, 2016, at 111, available at https://www.fema.gov/media-library/assets/documents/124228.
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    With respect to comments stating that the restriction on paying for 
pre-disaster moving and storage is inconsistent with the Federal and 
State philosophy of promoting and supporting hazard mitigation 
measures, FEMA believes that even if it were to remove the restriction 
and begin paying for pre-disaster moving and storage expenses it would 
have limited affect, as it would only apply sporadically and affect a 
small population of disaster survivors. This is because pre-disaster 
moving and storage expenses would only apply to specific types of 
disasters that have advance warning such as hurricanes and lava flows. 
Unexpected disasters such as earthquakes and tornados would not be 
eligible for pre-disaster moving and storage expenses because those 
events occur without sufficient warning to permit sufficient time to 
move and store. In addition, FEMA's system for processing applications 
for IHP accepts expenses that occurred post major disaster declaration 
date. Allowing moving and storage expenses pre-disaster declaration 
date is an administrative challenge and would require system changes. 
For these reasons, FEMA has chosen, at this time, to continue to limit 
moving and storage assistance to assistance provided after the disaster 
has occurred while repairs are being made to the primary residence. 
However, FEMA is taking the commenter's suggestion under advisement and 
it will conduct a policy review to evaluate a possible future change to 
allow moving and storage expenses pre-disaster declaration date.
    With respect to comments stating that the cost of moving and 
storage was much less than the cost of replacing personal property, 
FEMA also notes that the insurance industry generally does not 
reimburse for pre-disaster, preventative moving and storage. In 
addition, the insurance industry requires individuals who sustain 
losses or may incur additional losses to take necessary and effective 
action to prevent or mitigate further losses. The insurance industry 
generally does not require prevention or mitigation before the loss 
occurs.

Comments Regarding Ineligible Costs (44 CFR 206.120(f)(3))

    As discussed in the NPRM and changed by the interim final rule, the 
Other Needs Assistance (ONA) provision of the IHP may be administered 
one of three ways: (1) Exclusively by FEMA, (2) administered by the 
State with substantial FEMA assistance, or (3) by the State with 
minimal FEMA participation. If the State administers ONA, it may 
request a grant from FEMA that it uses to administer assistance to 
individuals and households in the State. In accordance with section 
408(f)(1)(B) of the Stafford Act, a State that receives an ONA grant 
may expend not more than 5 percent of the amount of the grant for 
administrative costs. These administrative costs typically include 
conducting grants management oversight; generating financial status 
reports, weekly program status reports, and other accounting documents; 
maintaining records; and conducting audits.
    Under the terms of 44 CFR 206.120(f)(3), funds provided to the 
State for administrative costs cannot be used to pay regular time for 
State employees but may be used to pay overtime for those employees. 
Three of the State agencies that commented on the rule (Texas, 
Washington, and New York) disagreed with this provision. One commenter 
stated that FEMA had arbitrarily implemented a rule that runs contrary 
to the definition of eligible costs in OMB Circular A-87, Attachment A, 
General Principles for Determining Allowable Costs. The commenter 
stated that staff costs, whether they are incurred by an incumbent 
State employee or newly hired person, should be an eligible expense 
against grant management if the employee spends most of his/her 
available hours managing the grant.
    Another commenter stated that because overtime is an allowed 
expense by 206.120(f)(3),\7\ and thus recognized as an identifiable and 
specific function which fully benefits IHP/ONA, regular time should be 
allowed since it is also an identifiable and specific function which 
fully benefits IHP/ONA. The commenter also stated that funding the 
regular time of State employees with another funding source would 
contradict OMB Circular No. A-87, Attachment A, C.3.c., which addresses 
overcoming funding deficiencies for Federal grant awards.
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    \7\ The commenter referenced 44 CFR 206.120(e)(3). FEMA 
construes the citation as a reference to 44 CFR 206.120(f)(3), 
because section 206.120(e)(3) does not exist and 44 CFR 
206.120(f)(3) states that ``Funds provided to the State for the 
administrative costs of administering Other Needs assistance shall 
not be used to pay regular time for State employees, but may be used 
to pay overtime for those employees.''
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    Commenters stated that some employees involved in IHP/ONA 
administration devote 100 percent of their time to the management of 
the disaster processing operation, and for those that perform other 
tasks in addition to grant management, any sizeable disaster will 
require hiring additional staff to backfill the other duties that the 
grant manager no longer has time to do.
    A commenter stated that the current rule, as written, runs contrary 
to a State's effort to remain involved in ONA and that considerable 
time and effort has been expended in order to train State staff to be 
ready and able to respond effectively to disaster declarations. 
According to the commenter, the current rule encourages States to hire 
a temporary person to manage the grant, thus allowing their salary to 
be a legitimate cost against the 5 percent administrative fee; however, 
hiring someone who knows nothing about the IHP, which needs to be up 
and running within hours of a declaration, is not justifiable.

FEMA's Response

    The 2002 interim final rule was not contrary to the definition of 
eligible costs in OMB Circular A-87. On September 30, 2002, the date 
that FEMA promulgated the interim final rule (see 67 FR 61446), the 
applicable version of OMB Circular A-87 was the version published in 
the Federal Register on May 17, 1995. See 60 FR 26484. The 1995 OMB 
Circular A-87, Attachment A, E.2.a., states that typical direct costs 
that are chargeable to Federal awards include compensation for 
employees for the time devoted and identified specifically to the 
performance of those awards. However, OMB Circular A-87 does not 
prohibit FEMA from making

[[Page 62459]]

these types of direct costs ineligible through the regulatory process. 
See 1995 OMB Circular No. A-87, Attachment A, C.1d.
    With respect to the commenter's statement that funding the regular 
time of State employees with another funding source would contradict 
the 1995 OMB Circular No. A-87 C.3.c., FEMA construes the citation as a 
reference to the 1995 OMB Circular No. A-87, Attachment A, C.3.c., as 
the referenced cite, C.3.c., does not exist in the main portion of the 
1995 OMB Circular No. A-87. The interim final rule at 44 CFR 
206.120(f)(3) does not contradict the 1995 OMB Circular No. A-87, 
Attachment A, C.3.c., as the regular time of State employees would be 
funded by the State and would not be charged to other Federal awards to 
overcome funding deficiencies. FEMA made a program determination to 
reimburse States that hire additional personnel for the grant because 
in such cases the costs for the additional personnel hired are directly 
linked to the management of the IHP/ONA grant award. FEMA determined 
that it would reimburse the State for the costs for these additional 
State employees because their salaries are not covered under previously 
appropriated funds in a State's budget and they were hired simply to 
work on the management of the IHP/ONA grant award. For the same 
reasons, 44 CFR 206.120(f)(3) does not contradict the 1995 OMB Circular 
No. A-87, Attachment A, C.3.c.
    Since the interim final rule was promulgated, OMB has issued two 
additional versions of OMB Circular A-87, which have superseded the 
previous versions. See 69 FR 25970 and 78 FR 78590. The 2004 OMB 
Circular A-87 version was merely a revision, and while the citations 
were updated, the language was not changed. In 2013, OMB issued final 
guidance that superseded and streamlined requirements from OMB 
Circulars A-21, A-87, A-110, and A-122 (which have been placed in OMB 
guidance); Circulars A-89, A-102, and A-133; and the guidance in 
Circular A-50 on Single Audit Act follow up. See 78 FR 78590. The 
purpose of this consolidation was to provide the aforementioned 
circular in a streamlined format that aims to improve both clarity and 
accessibility.

Comments Regarding Ineligible Costs (44 CFR 206.120(f)(3)) and 
Federalism

    One commenter also added that the interim final rule appears to be 
a subtle attempt to encourage the States to let FEMA administer the 
grants. The commenter stated that the rule may, therefore, have 
federalism implications.

FEMA's Response

    As discussed under the Federalism heading of the preamble, a rule 
has federalism implications 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. This regulation clearly leaves the 
decision whether to administer (or apply for) ONA to the States. 
``Subtle encouragement'' to participate voluntarily in a Federal 
program, whether intended or not, does not rise to the level of a rule 
with federalism implications. The regulatory text in question does not 
require States to participate in the program, mandate that FEMA 
administer the program, prohibit States from administering the program, 
or limit the policymaking discretion of the States with respect to 
whether they may or may not administer the program. States are free to 
administer the grants; however, FEMA will not fund the regular salaries 
of State employees, for the reasons stated above.

Comments Regarding Recovery of Other Needs Assistance Funds (44 CFR 
206.120(f)(5))

    Section 206.120(f)(5) requires the States to recover ONA funds from 
applicants who obtained the funds through fraud, who expended the funds 
for unauthorized items or services, who expended the funds for items 
for which assistance is received from other means, and from applicants 
to whom the award was made in error. Four State agencies (Texas, 
Washington, Maine, and New York) commented that the States should not 
be responsible for recovering ONA funds when the recovery is necessary 
due to FEMA error, for example when a grant is issued erroneously by 
FEMA's automated determination process. One State agency proposed that, 
since many States use the ``AUTO-D'' option, which is based on the FEMA 
inspection reports and business rules set up in NEMIS, the following 
language should be added to 44 CFR 206.120(f)(5): ``FEMA will be 
responsible for recovering assistance awards from applicants when an 
award has been mistakenly made as a result of a FEMA processing 
error.'' The commenter added that the State administrative ``cost to 
recover funds runs two to three times more than the cost of issuing an 
award. Under the current FEMA policy, the administrative costs are 
deducted from the total Federal outlay, which means the States are not 
compensated (five percent administrative costs) for moneys recovered.'' 
The commenter noted that requiring the States to recover award moneys 
for Federal mistakes results in use of State funds to correct Federal 
errors, which is punitive to the States.

FEMA's Response

    FEMA inserted 44 CFR 206.120 into the interim final rule to address 
the financial management principles that FEMA would use to implement 
the ONA portion of the IHP. Even before FEMA published the proposed IHP 
rule, a number of States had expressed a desire to actively participate 
in the administration of IHP. The comments that FEMA received on both 
the proposed and interim final rule indicated that the States wanted 
opportunities to be active partners in the administration of the new 
program. One component in the administration of the IHP is the recovery 
of funds that were issued in error. Federal agencies are required to 
take action to identify and recover improper payments, regardless of 
whether the payments were made in error or obtained by fraud.\8\ In 
addition, by statute, applicants must return funds to FEMA when the 
assistance provided by FEMA duplicates assistance from another 
source.\9\ And the generally applicable IHP regulations, which apply 
regardless of which entity administers IHP, require applicants to 
return funds when such funds were provided in error, were spent 
inappropriately, or were obtained through fraudulent means.\10\ When a 
State is administrating the ONA portion of the IHP, FEMA provides a 
grant to the State, territorial, or Tribal government and they are 
responsible for all tasks associated with the administration of ONA. 
The State, territorial, or Tribal government provides assistance to 
applicants, and FEMA is responsible for reimbursing the State, 
territorial, or Tribal government for its portion of the cost share. 
The State, territorial, or Tribal government may utilize 5 percent of 
the grant toward administrative costs, including the costs of 
reimbursement. Because the State, territorial, or Tribal government are 
the entities who made the decisions regarding whether an applicant was 
eligible for ONA funds and have the records regarding who was awarded 
ONA funds, the State, territorial, or Tribal government are ultimately 
the party that must be responsible for recovering funds that were 
issued in error.
---------------------------------------------------------------------------

    \8\ The Debt Collection Act of 1996, Public Law 104-34; 31 
U.S.C. 3711(a).
    \9\ Section 312(c) of the Stafford Act, 42 U.S.C. 5155(c); 44 
CFR 206.191.
    \10\ 44 CFR 206.116(b).

---------------------------------------------------------------------------

[[Page 62460]]

    Additionally, as a result of cost-share requirements, 25 percent of 
the funds that were issued in error are actually State funds that need 
to be returned to the State. Thus, the State can recover the funds, 
subtract their portion of funds, and return the remaining 75 percent to 
the Federal Government.

Comments Regarding Flood Insurance Purchase Requirement (44 CFR 
206.110(k)) and Group Flood Insurance Policy (44 CFR 206.119(d))

    The Flood Disaster Protection Act of 1973, as amended, requires 
that individuals or households that are located in a Special Flood 
Hazard Area (SFHA) 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 42 U.S.C. 4001-4129. In 
addition, the National Flood Insurance Reform Act of 1994 and the 
Riegle Community Development and Regulatory Improvement Act of 1994 
state that no Federal disaster assistance may be provided to a person 
for damage to any personal or residential property who has received 
flood disaster assistance that was conditioned on the person first 
having obtained flood insurance and subsequently failed to obtain and 
maintain flood insurance as required. See 42 U.S.C. 5154a. Pursuant to 
the flood insurance purchase requirement, individuals and households 
must buy and maintain flood insurance as a condition of receiving 
Federal assistance. For purposes of IA, FEMA interprets financial 
assistance to mean assistance to an individual or household to buy, 
receive, build, repair, or improve insurable portions of a home and/or 
to purchase or repair insurable contents. See 44 CFR 206.110(k).
    Individuals identified by FEMA as eligible for ONA under section 
408 of the Stafford Act as a result of flood damage caused by a 
Presidentially-declared major disaster and who reside in a special 
flood hazard area may be included in a Group Flood Insurance Policy 
(GFIP) established under the NFIP. See 44 CFR 206.119(d). The GFIP is a 
policy that is established for each disaster declaration that results 
from flooding and authorizes the provision of Individual Assistance. 
FEMA or the State will withhold a portion of ONA funds for such 
individuals and provide it to the NFIP on behalf of individuals and 
households who are eligible for coverage. Payments to cover the premium 
amount for each applicant are paid for a 3-year policy term. The master 
GFIP policy term is for 36 months and begins 60 days from the date of 
the disaster declaration. However, individual coverage becomes 
effective 30 days following the NFIP's receipt of the applicant's name 
and premium payment from the State, Territory, Tribal government, or 
FEMA.
    Three State agencies (Washington, Virginia, and Texas) commented on 
the requirement that individuals and households must purchase flood 
insurance when their GFIP grant ends. Washington and Virginia stated 
that the requirement to maintain the policy places a disproportionate 
burden on the poor, as the poor were more likely to buy property in 
SFHAs because it is the least expensive property in a community, and 
that the cost of GFIP renewal for such individuals was cost-
prohibitive, given their limited resources. Texas stated that, since 
the penalty for failure to purchase and maintain flood insurance, which 
is a condition of IHP, is a denial of future disaster assistance, it 
would be imprudent not to continue to provide GFIP coverage for low 
income disaster victims.
    Three State agencies (Maine, Washington, and Virginia) commented 
that FEMA should consider changing the GFIP requirement for people who 
cannot pass an SBA income test. Maine expressed concern that the 
individuals would become disenfranchised from assistance following the 
expiration of their GFIP grant and that, unless the financial 
situations of such individuals improved dramatically, it was unlikely 
that such individuals would either qualify for SBA programs or be able 
to pay an NFIP premium following the expiration of the GFIP grant. 
Virginia also commented that if an individual fails the SBA income test 
they should be subsidized by a formula based system.

FEMA's Response

    In the proposed rule, FEMA proposed the elimination of the GFIP. 
See 67 FR 3415. As discussed in the interim final rule, FEMA received 
comments from States which supported the continuation of the GFIP. See 
67 FR 61449. The States stated that the basis for their support of the 
program related to the fact that disaster survivors who qualified for 
Individual and Family Grant assistance (the precursor program to the 
IHP) generally had low incomes and were not as able to afford to pay 
flood insurance premiums as other disaster survivors. See 67 FR 61449. 
Because the penalty for failing to purchase and maintain flood 
insurance as a condition of receiving disaster assistance under the old 
Individual and Family Grant Program and under the new IHP is a denial 
of future disaster assistance, most of the States that commented on 
FEMA's proposal believed that it would be imprudent not to continue 
providing GFIP coverage for low income disaster survivors.
    FEMA retained the GFIP in the interim final rule based upon the 
comments FEMA received on the proposed rule as well as the requirement 
from the National Flood Insurance Reform Act of 1994 and the Riegle 
Community Development and Regulatory Improvement Act of 1994 (See 42 
U.S.C. 5154a). But some States questioned the requirement to maintain 
flood insurance, arguing that it places a disproportionate burden on 
the poor, since the poor are more likely to buy property in special 
flood areas because they are the least expensive properties in a 
community, and that the cost for such individuals is too high. Also, 
the Stafford Act requires the purchase and maintenance of flood 
insurance as a condition of receiving future disaster assistance in 
certain circumstances. See 42 U.S.C. 5154a. Therefore, FEMA does not 
have the discretion to waive the flood insurance requirement. To assist 
applicants with maintaining flood insurance, as mentioned above, FEMA 
provides all eligible applicants with GFIP for 3 years. See 44 CFR 
206.119(d).

Comments Regarding Executive Order 12898, Environmental Justice

    Two State agencies (Washington and Virginia) commented generally 
that the interim final rule would ``discriminate covertly'' against the 
poor. Specifically, these two commenters stated that the housing repair 
cap of $5,000 and the housing replacement cap of $10,000 have a 
negative impact on low-income disaster survivors.

FEMA's Response

    FEMA does not believe that the interim final rule discriminates 
covertly against the poor. For instance, the interim final rule 
assisted the poor by retaining the GFIP.
    The two comments that FEMA received regarding the housing repair 
and replacement caps were addressed in the final rule published on 
November 7, 2013, that removed the caps.

IV. Final Rule

    FEMA is finalizing the interim final rule implementing 44 CFR 
206.110-120 published on September 30, 2002, (67 FR 61446), with the 
corrections published on October 9, 2002, (67 FR 62896), the technical 
amendments to 206.110, 206.111, 206.112, 206.115, 206.117, and 206.120 
published on

[[Page 62461]]

April 3, 2009, (74 FR 15328), and the amendments to 206.117 published 
on November 7, 2013, (78 FR 66852), without change.

V. Regulatory Analysis

A. Executive Order 12866, Regulatory Planning and Review, Executive 
Order 13563, Improving Regulation and Regulatory Review and Executive 
Order 13771, Reducing Regulation and Controlling Regulatory Costs

    Executive Orders 12866 (``Regulatory Planning and 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. Executive Order 13771 (``Reducing Regulation and 
Controlling Regulatory Costs'') directs agencies to reduce regulation 
and control regulatory costs and provides that ``for every one new 
regulation issued, at least two prior regulations be identified for 
elimination, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process.''
    The Office of Management and Budget (OMB) has not designated this 
rule a ``significant regulatory action,'' under section 3(f) of 
Executive Order 12866. Accordingly, OMB has not reviewed it. As this 
rule is not a significant regulatory action, this rule is exempt from 
the requirements of Executive Order 13771. See OMB's Memorandum 
``Guidance Implementing Executive Order 13771, Titled `Reducing 
Regulation and Controlling Regulatory Costs''' (April 5, 2017).
    This final rule will result in no changes to the IHP and FEMA does 
not anticipate any additional costs. FEMA is not requiring applicants 
to perform any additional tasks, fill out any new forms, or provide any 
additional information. It is anticipated that the cost to applicants 
will not change as a result of this rule. FEMA is not changing the 
parameters of the program in any way so there is no expectation that 
the number of applications processed by FEMA would be altered. As such, 
FEMA's workload will not be impacted.
    The IHP provides financial and direct assistance to those who, as 
the result of a Presidentially-declared emergency or major disaster, 
have necessary expenses and serious needs they are unable to meet 
through other means. This aid may include temporary housing, aid to 
repair or replace housing, permanent or semi-permanent housing 
construction, and ONA, which provides financial assistance for personal 
property losses, medical, dental, funeral, child care, transportation, 
and other miscellaneous expenses. These services and the benefits 
derived from them are not being altered by this final rule and will 
continue to exist at their current levels. Since there are no changes 
to the amount or type of assistance available, there will 
correspondingly be no change in the benefits currently derived from the 
IHP.
    Similarly, this final rule will not change the number of eligible 
applicants or the amount of funds expended per applicant. This rule 
also has no anticipated impact on transfers.
    This rule finalizes an interim final rule and addresses outstanding 
comments received on the September 30, 2002 interim final rule. This 
final rule makes no changes to the IHP either in response to or 
independent of those comments. FEMA does not anticipate any changes to 
the associated costs, benefits, or transfers from this final rule.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121, 110 Stat. 857), FEMA must consider the impact of 
this proposed regulation on small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000. 
When the Administrative Procedure Act requires an agency to publish a 
notice of proposed rulemaking under 5 U.S.C. 553, the RFA requires a 
regulatory flexibility analysis for both the proposed rule and the 
final rule if the rulemaking could ``have a significant economic impact 
on a substantial number of small entities.''
    This final rule concerns the provision of Federal assistance to 
individuals and households after a Presidentially-declared emergency or 
major disaster. Individuals and households are not classified as small 
entities. A household is defined at 44 CFR 206.111 as ``all persons 
(adults and children) who lived in the pre-disaster residence who 
request assistance under this subpart, as well as any persons such as 
infants, spouse or part-time residents who were not present at the time 
of the disaster, but who are expected to return during the assistance 
period.'' This rule does not directly regulate any small entities.
    Additionally, while this rule is addressing comments from the 
September 30, 2002 interim final rule, it is making no changes and 
imposes no direct costs.
    During the public comment period on the January 23, 2002, NPRM, 
FEMA did not receive any comments contrary to the Regulatory 
Flexibility Analysis certification provided at that time.
    Accordingly, pursuant to section 605(b) of the RFA, 5 U.S.C. 
605(b), the head of FEMA certifies this rule will not have a 
significant economic impact on a substantial number of small entities.

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504, 
1531-1536, 1571, pertains to any notice of proposed rulemaking which 
implements any rule that includes 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 (adjusted annually 
for inflation) or more in any one year. If the rulemaking includes a 
Federal mandate, the Act requires an agency to prepare an assessment of 
the anticipated costs and benefits of the Federal mandate. The Act also 
pertains to any regulatory requirements that might significantly or 
uniquely affect small governments. Before establishing any such 
requirements, an agency must develop a plan allowing for input from the 
affected governments regarding the requirements. The Act exempts any 
regulation or proposed regulation that ``requires compliance with 
accounting and auditing procedures with respect to grants or other 
money or property provided by the Federal Government'' or ``provides 
for emergency assistance or relief at the request of any State, local, 
or tribal government or any official of a State, local, or tribal 
government.'' 2 U.S.C. 1503(4). FEMA finds this rule to be exempt from 
the Act under those provisions.
    As reported in the 12866 section, FEMA has determined that this 
rule will not result in the expenditure by State, local, and Tribal 
governments, in the aggregate, nor by the private sector, of $100 
million or more in any one year as a result of a Federal mandate, and 
it will not significantly or uniquely affect small governments. 
Therefore, no actions are deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

[[Page 62462]]

D. National Environmental Policy Act

    Under the National Environmental Policy Act of 1969 (NEPA), as 
amended, 42 U.S.C. 42 U.S.C. 4321 et seq., an agency must prepare an 
environmental assessment or environmental impact statement for any 
rulemaking that significantly affects the quality of the human 
environment. FEMA has determined that this rulemaking does not 
significantly affect the quality of the human environment and 
consequently has not prepared an environmental assessment or 
environmental impact statement.
    Rulemaking is a major Federal action subject to NEPA. Categorical 
exclusion A3 included in the list of exclusion categories at Department 
of Homeland Security Instruction Manual 023-01-001-01, Revision 01, 
Implementation of the National Environmental Policy Act, Appendix A, 
issued November 6, 2014, covers the promulgation of rules, issuance of 
rulings or interpretations, and the development and publication of 
policies, orders, directives, notices, procedures, manuals, and 
advisory circulars if they meet certain criteria provided in A3(a-f). 
This final rule finalizes an existing regulation without changing its 
environmental effect, which meets Categorical Exclusion A3(d).

E. Paperwork Reduction Act of 1995

    FEMA has determined that this rule will not create a new collection 
of information or create a revision to an existing collection of 
information under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 
3501-3520. All information submitted by applicants seeking IHP housing 
assistance, including information submitted on appeal, is included in 
OMB-approved collections.
    The following collections related to IHP have been approved by OMB 
under the following titles and control numbers: ``Disaster Assistance 
Registration,'' OMB control number 1660-0002, expiration date August 
31, 2022, and ``Federal Assistance to Individuals and Households 
Program (IHP),'' OMB control number 1660-0061, expiration date May 31, 
2020. There is no additional paperwork burden as a result of this final 
rule.

F. Privacy Act

    Under the Privacy Act of 1974, 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 except by following specific procedures.
    FEMA, in partnership with other Federal agencies, hosts a single 
application and resource center at http://www.disasterassistance.gov 
that allows the public to apply for disaster assistance, benefits, and 
other services within FEMA and other Federal agencies. This application 
and resource center accepts personally identifiable information about 
IHP applicants seeking disaster related housing and other needs 
assistance. The application resource center is included in a Privacy 
Act System of Records entitled ``Disaster Recovery Assistance Files'' 
number ``DHS/FEMA-008'' which was published on April 30, 2013, in the 
Federal Register at 78 FR 25282. This final rule would not change the 
application materials received or result in a new collection of 
personally identifiable information about individuals.

G. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments,'' 65 FR 67249, November 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 shall 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. This final rule would not significantly 
or uniquely affect the communities of Indian Tribal governments, nor 
would this rulemaking impose substantial direct compliance costs on 
those communities.

H. Executive Order 13132, Federalism

    Executive Order 13132, ``Federalism,'' 64 FR 43255, August 10, 
1999, sets forth principles and criteria that agencies must adhere to 
in formulating and implementing policies that have federalism 
implications, that is, regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Federal 
agencies must closely examine the statutory authority supporting any 
action that would limit the policymaking discretion of the States, and 
to the extent practicable, must consult with State and local officials 
before implementing any such action. The disaster assistance addressed 
by this final rule is provided to individuals and households, and would 
not have federalism implications.

I. Executive Orders 11988 and 11990, Floodplain Management and 
Protection of Wetlands

    Executive Order 11988, ``Floodplain Management,'' 42 FR 26951, May 
24, 1977, sets forth that each 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; ensure that its planning 
programs and budget requests reflect consideration of flood hazards and 
floodplain management; and prescribe procedures to implement the 
policies and requirements of the Executive Order.
    Before promulgating any regulation, an agency must determine 
whether the proposed regulations will affect a floodplain(s), and if 
so, the agency must

[[Page 62463]]

consider alternatives to avoid adverse effects and incompatible 
development in the floodplain(s). 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 proposed to be 
located in the floodplain.
    The requirements of these Executive Orders apply in the context of 
the provision of Federal financial assistance relating to, among other 
things, construction and property improvement activities, as well as 
conducting Federal programs affecting land use. This final rule would 
not have an effect on land use, floodplain management, or wetlands. 
When FEMA undertakes specific actions in administering IHP that may 
have effects on floodplain management (e.g., placement of manufactured 
housing units on FEMA-constructed group sites; permanent or semi-
permanent housing construction; Multi-Family Lease and Repair; 
financial assistance for privately owned roads and bridges), FEMA 
follows the procedures set forth in 44 CFR part 9 to assure compliance 
with this Executive Order. The notice that is required by the Executive 
Order is provided separately at the time FEMA undertakes the specific 
action.

J. Executive Order 12898, Environmental Justice

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' 59 FR 7629, February 16, 1994, as amended by Executive 
Order 12948, 60 FR 6381, February 1, 1995, FEMA incorporates 
environmental justice into its policies and programs. The Executive 
Order 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 programs, denying persons the benefits of programs, or 
subjecting persons to discrimination because of race, color, or 
national origin. FEMA has incorporated environmental justice into its 
policies, programs, and activities.
    The IHP regulations intentionally contain provisions that ensure 
they would not have a disproportionately high and adverse human health 
effect on any segment of the population. FEMA received a comment on the 
interim final rule that stated the interim final rule did not overtly 
discriminate against disaster survivors based on race, color, or 
national origin, but that it did discriminate covertly against those 
who are ``financially challenged,'' and, to the extent that the 
``financially challenged'' consist disproportionately of minority 
groups, one might conclude that an element of the IHP program lacks 
environmental justice. The commenter stated that the housing repair cap 
of $5,000 has a gross negative impact on low-income disaster survivors, 
and results in more low-income disaster survivors returning to unsafe, 
unsanitary, and/or non-functional homes. The commenter recommended the 
liberal use of housing replacement assistance to provide additional 
help for the financially challenged.
    FEMA addressed this comment in a NPRM that published in the Federal 
Register on July 30, 2012 (see 77 FR 44562), and a final rule that 
published in the Federal Register on November 7, 2013 (see 78 FR 
66852). The $5,000 subcap is no longer in place and individuals and 
households may receive up to the full amount of IHP funds ($33,000 for 
fiscal year 2016) for eligible housing repair and replacement 
assistance. See 80 FR 62086 (Oct. 15, 2015). This figure is adjusted 
annually to reflect changes in the Consumer Price Index.
    No action that FEMA can anticipate under this final rule would have 
a disproportionately high and adverse human health effect on any 
segment of the population. In addition, the rulemaking would not impose 
substantial direct compliance costs on those communities.

K. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    FEMA has analyzed this final rule under Executive Order 13045, 
Protection of Children From Environmental Health Risks and Safety 
Risks, 62 FR 19883, Apr. 23, 1997. This rule is not an economically 
significant rule and would not create an environmental risk to health 
or safety that might disproportionately affect children.

L. Executive Order 12988, Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden. See Executive Order 12988, 61 
FR 4729, Feb. 7, 1996.

M. Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    FEMA has reviewed this rule under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, as supplemented by Executive Order 13406, Protecting 
the Property Rights of the American People. See Executive Order 12630, 
53 FR 8859, Mar. 18, 1988, and Executive Order 13406, 71 FR 36973, June 
28, 2006. This rule will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630.

N. Congressional Review of Agency Rulemaking

    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 Government 
Accountability Office (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 Regulatory 
Flexibility Act and the Unfunded Mandates Reform Act, and any other 
information or statements required by relevant executive orders.
    FEMA has sent this rule to Congress and to GAO pursuant to the CRA. 
The rule is not a major rule within the meaning of the CRA. It will not 
have an annual effect on the economy of $100 million or more, it will 
not result in a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions, and it will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

List of Subjects in 44 CFR Part 206

    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

[[Page 62464]]

community development, Natural resources, Penalties, and Reporting and 
recordkeeping requirements.

PART 206--FEDERAL DISASTER ASSISTANCE

0
Accordingly, the amendments to 44 CFR 206.110-120 of the interim final 
rule published on September 30, 2002 (67 FR 61446), with the 
corrections published on October 9, 2002 (67 FR 62896), the technical 
amendments to 206.110, 206.111, 206.112, 206.115, 206.117, and 206.120 
published on April 3, 2009 (74 FR 15328), and the amendments to 206.117 
published on November 7, 2013 (78 FR 66852), are adopted as a final 
rule without change.

Pete Gaynor,
Acting Administrator, Federal Emergency Management Agency.
[FR Doc. 2019-24762 Filed 11-14-19; 8:45 am]
BILLING CODE 9111-23-P


