[Federal Register Volume 77, Number 146 (Monday, July 30, 2012)]
[Proposed Rules]
[Pages 44562-44571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18568]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID FEMA-2010-0035]
RIN 1660-AA68
Housing Assistance Due to Structural Damage
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Under the authority of section 408 of the Robert T. Stafford
Disaster
[[Page 44563]]
Relief and Emergency Assistance Act (Stafford Act), the Federal
Emergency Management Agency (FEMA) provides grants to individuals and
households to repair or replace their homes after a Presidentially-
declared major disaster or emergency. FEMA proposes to revise its
repair, replacement, and housing construction assistance regulations to
clarify the eligibility criteria for assistance and implement changes
to section 408 of the Stafford Act that were made by the Post-Katrina
Emergency Management Reform Act of 2006 (PKEMRA).
DATES: Comments must be received on or before September 28, 2012.
ADDRESSES: You may submit comments, identified by docket ID FEMA-2010-
0035, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of
Chief Counsel, 500 C Street SW., Room 840, Washington, DC 20472-3100.
Instructions: All submissions received must include the agency name
and docket ID. Regardless of the method used for submitting comments or
material, all submissions will be posted, without change, to the
Federal e-Rulemaking Portal at http://www.regulations.gov, and will
include any personal information you provide. Therefore, submitting
this information makes it public. You may wish to read the Privacy Act
notice that is available via the Privacy Notice link on the homepage of
www.regulations.gov.
Docket: For access to the docket to read background documents or
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov, click on ``Advanced Search,'' then enter ``FEMA-
2010-0035'' in the ``By Docket ID'' box, then select ``FEMA'' under
``By Agency,'' and then click ``Search.'' Submitted comments may also
be inspected at the Office of Chief Counsel, Federal Emergency
Management Agency, 500 C Street SW., Room 835, Washington, DC 20472-
3100.
FOR FURTHER INFORMATION CONTACT: Lumumba T. Yancey, FEMA, Individual
Assistance Division, 500 C Street SW., Washington, DC 20472-3100,
(phone) 202-212-1000, (facsimile) (202) 212-1005, or (email) [email protected].
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) with the authority to administer the Individuals and
Households grant program (IHP). See 42 U.S.C. 5174. Through the IHP,
FEMA provides grants 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 as well as assistance to meet
``other needs'' such as medical, dental, funeral, fuel, or clothing
costs.
Specifically, FEMA provides the following types of housing
assistance:
Temporary Housing: Money is available to rent a different place to
live for a limited period of time. When rental properties are not
available, FEMA may provide direct assistance in the form of a
temporary housing unit.
Housing Repair: Money 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: Money is available to homeowners to replace
their home 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 money for the
construction of a home, or may construct the new permanent or semi-
permanent housing unit for an individual or household. This type of
assistance is currently provided only in remote and insular areas or
locations specified by FEMA where no other type of housing assistance
is available, feasible, or cost-effective. Assistance is provided only
for damage that is not covered by insurance.
The regulations establishing the types of IHP assistance available, the
eligibility requirements for assistance, and the procedures for
obtaining assistance are in 44 CFR part 206, subparts D and F.
On September 30, 2002, FEMA published an interim rule in the
Federal Register, identified by Regulation Identifier Number (RIN)
1660-AA18, which revised its regulations implementing the IHP. See 67
FR 61446. FEMA published a correction to the interim rule on October 9,
2002. See 67 FR 62896. Among other things, the interim rule established
the housing repair, replacement, and construction eligibility
regulations in 44 CFR 206.117. These regulations are currently in
effect.
This proposed rule addresses the public comments received on the
interim rule related to housing repair and replacement, and proposes
revisions that are intended to clarify and improve FEMA's eligibility
requirements for housing repair assistance. These proposed changes are
intended to restate the existing requirements more clearly and in
greater detail. They are not intended to create new eligibility
requirements or add an additional burden on applicants.
In addition, the proposed rule implements and codifies legislative
changes made after the interim rule was published. On October 4, 2006,
the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA)
amended section 408 of the Stafford Act which affected housing repair,
replacement, and construction assistance. First, it amended subsection
408(c)(2) of the Stafford Act by removing the subcaps that had limited
the amount of IHP funds that could be used for housing repair and
replacement. See 42 U.S.C. 5174(c) and section 686 of Public Law 109-
295. This was a self-implementing statutory change, which went into
effect immediately. FEMA no longer applies the housing repair and
replacement subcaps. Individuals and households may use up to the full
amount of IHP funds ($31,400 for fiscal year 2012) for repair and
replacement assistance. See 76 FR 63940 (Oct. 14, 2011). This figure is
adjusted annually to reflect changes in the Consumer Price Index (CPI).
Second, PKEMRA amended subsection 408(c)(4) of the Stafford Act by
removing the word ``remote'' and adding the word ``semi-permanent.''
While FEMA already had authority to provide ``permanent housing
construction'' assistance, this statutory change provides FEMA with
authority to provide assistance for the construction of ``semi-
permanent'' housing. Prior to this statutory change, FEMA only had the
authority to provide construction assistance to locations that were
insular (outside the continental United States) or in remote areas
where the other types of housing assistance were unavailable,
infeasible, or not cost effective. The removal of the statutory
requirement that a location be ``remote'' allows FEMA greater
flexibility to provide construction assistance in other locations, when
FEMA determines that the stringent statutory requirements are
satisfied. See 42 U.S.C. 5174(c)(4) and section 685 of Public Law 109-
295. Although this change would likely provide more flexibility for
FEMA to meet the housing needs of disaster
[[Page 44564]]
survivors, FEMA expects to exercise this authority only rarely.
Typically, within the continental United States, alternative housing
resources and/or other types of temporary housing are available and
feasible (e.g., rental housing or FEMA-provided temporary housing
units).
II. Discussion of the Proposed Rule
This rule proposes to do four things. First, it proposes to address
the public comments received on the 2002 interim rule related to
housing repair and replacement and proposes revisions to the interim
rule as a result of those comments. Second, it proposes changes which
are intended to restate the existing requirements more clearly and in
greater detail, without substantively changing the underlying
requirements. The changes should clarify IHP housing repair assistance
requirements for potential applicants and make it easier for the public
to understand why damage to their residence is (or is not) eligible for
IHP assistance. These proposed changes are not intended to create new
eligibility requirements or add an additional burden on applicants.
Third, this rule proposes to revise the regulations to align with
PKEMRA's removal of the housing repair and replacement subcaps. This is
a non-discretionary conforming amendment that aligns the regulation
with changes in the Stafford Act and FEMA's current operations.
Finally, it proposes to add the term ``semi-permanent'' and to remove
the term ``remote'' with respect to the eligibility requirements for
housing construction, as authorized by PKEMRA.
When appropriate, FEMA will provide financial assistance to
individuals and households to repair eligible real property components
that are a part of their primary residence and were damaged by the
event. To be eligible for repair assistance, the damage to the
component must have been caused by the declared event and the component
must have been functional before the event. Also, repair or replacement
of the component must be necessary to ensure the safety or health of
the occupant or to make the residence functional. These eligibility
requirements are currently in effect. See 44 CFR 206.117(b)(2), (c)(1).
This rule proposes language that would revise the repair assistance
regulations to restate the eligibility requirements more clearly.
If an individual or household's primary residence is damaged, and
repair is not feasible, the individual or household may apply for
housing replacement assistance. If FEMA awards replacement assistance,
FEMA provides the individual or household financial assistance for the
reasonable costs to replace their home, up to the maximum assistance
set by law. The Disaster Mitigation Act of 2000 set a cap of $5,000 for
repair assistance, and $10,000 for replacement assistance that an
individual could use out of their maximum assistance award. See section
206 of Public Law 106-390. An individual was previously not allowed to
use any additional funds from their maximum assistance award for the
reasonable costs to repair or replace their home.
Under the current regulations, FEMA will provide replacement
assistance if there is at least $10,000 of disaster-related damage (as
adjusted annually to reflect changes in the CPI). See 44 CFR
206.117(b)(3). If awarded replacement assistance, under the current
regulations, the applicant can either (1) replace the dwelling in its
entirety for $10,000 (as adjusted annually to reflect changes in the
CPI) or (2) use the assistance towards the cost of acquiring a new
permanent residence that costs more than $10,000. See 44 CFR
206.117(b)(3). This $10,000 eligibility structure is no longer
appropriate since PKEMRA removed the repair and replacement subcaps
from the Stafford Act. FEMA proposes to remove the $10,000 subcap and
eligibility threshold from the regulations, but maintain the underlying
concept that replacement assistance is only available when the
applicant must replace the damaged dwelling in its entirety. To
accomplish this, FEMA proposes that to be eligible for housing
replacement assistance, all parts of the dwelling's structure must have
been compromised and deemed not repairable.
FEMA also proposes to remove the $5,000 subcap for repair
assistance from the regulations, to reflect current law and FEMA
policy. With the $5,000 subcap for repair assistance removed,
individuals and households continue to be granted up to the full amount
of IHP funds ($30,200 for fiscal year 2011) for repairs, when repairs
are feasible and replacement assistance is not warranted. This change
does not reduce available repair assistance funds.
In exceptional circumstances, FEMA is authorized to provide
permanent or semi-permanent housing construction assistance. If FEMA
exercises its discretion to offer this form of housing assistance in a
specific disaster, FEMA may fund the construction of a permanent or
semi-permanent dwelling for an individual or household. This type of
assistance is only provided in those situations where the other types
of FEMA housing assistance are unavailable, infeasible, or not cost
effective. This limitation exists in FEMA's current regulations and is
not changed by this proposed rule. See 44 CFR 206.117(b)(4). FEMA
proposes to revise the regulatory language to conform to changes to the
Stafford Act. The Stafford Act now provides that housing construction
may be permanent or semi-permanent and the requirement that FEMA
provides assistance only in remote areas has been removed. FEMA
proposes to define ``semi-permanent housing'' as housing with a life
expectancy of more than 5 years, but less than 25 years. Housing with a
life expectancy of less than 5 years would be deemed temporary housing
and that over 25 years would be deemed permanent housing. FEMA has the
authority to provide this type of assistance in insular areas outside
the continental United States, as well as in other locations where no
alternative housing resources are available or where other types of
FEMA housing assistance are unavailable, infeasible, or not cost-
effective. See 42 U.S.C. 5174(c) and section 685 of Public Law 109-295.
The basic eligibility requirements for housing assistance are not
changed by this proposed rule. To be eligible for housing assistance,
the damage must not be covered by insurance, the damage must be to a
dwelling owned and occupied by the applicant, and it must have served
as the applicant's pre-disaster primary residence. Just as
fundamentally, section 408 requires that all assistance be for
``necessary expenses and serious needs'' that arose as a ``direct
result'' of the disaster; thus, repair and replacement assistance are
provided only to applicants whose residences were ``damaged by'' the
disaster. See 42 U.S.C. 5174(a)(1), (b), (c); 42 U.S.C. 5155; 44 CFR
206.113, 206.117(b). To provide greater clarity to the requirement that
the damage is a direct result of the disaster, FEMA proposes to make
changes to 44 CFR 206.117(a), (b)(2), (b)(3), (b)(4), and remove
paragraph (c). The following discussion will address the proposed
revisions to 44 CFR 206.117, paragraph by paragraph.
44 CFR 206.117--Paragraph (a) Definitions
As with all of FEMA's IHP housing assistance regulations in 44 CFR
part 206 subpart D, the definitions in 44 CFR 206.111 apply to 44 CFR
206.117. However, FEMA finds that to provide clarity to the housing
assistance regulations additional definitions may be necessary. FEMA
proposes to revise 44 CFR 206.117(a) to define particularly
[[Page 44565]]
important terms applicable to the housing repair, replacement and
construction requirements. These proposed definitions would be
applicable to 44 CFR 206.117 only. In paragraph (a), FEMA proposes to
add new definitions for ``Caused by the disaster''; ``Real property
component'' and ``component''; and ``Semi-permanent housing.'' Each of
these terms is particularly important in the interpretation of FEMA's
housing repair assistance regulations.
44 CFR 206.117--Paragraph (b)(2) Repair Assistance
Paragraph (b) addresses repair assistance. In paragraph (b)(2)(i),
FEMA proposes to clearly notify applicants that the eligibility
criteria for individuals and households who apply for IHP assistance
set forth in 44 CFR 206.113 also apply to 206.117(b)(2). Not only must
the component be eligible, but the applicant must be eligible. FEMA
proposes to add the cross reference to ensure that those requirements
are not overlooked. This is not a substantive change.
Second, FEMA proposes to reorganize the general eligibility
requirements in proposed paragraph (b)(2)(i) into a checklist format.
Although the presentation has changed, the proposed text contains no
new substantive requirements. These requirements are all contained in
current 44 CFR 206.117(b)(2)(i) and (b)(2)(ii).
Third, although they are not new, FEMA proposes to clarify these
existing requirements. Most notably, the current requirement that the
damage must be ``disaster-related'' has been broken into two parts. As
proposed, the component must have been functional immediately before
the event, and the component must have been damaged and made not
functional by the event. FEMA has historically used these two criteria
to determine if damages are ``disaster-related.'' These two criteria
break down the existing requirement, and make it easier to understand
what FEMA means by the term ``disaster-related damages.'' FEMA cannot
determine that a component that did not work before the event is not
functional as a result of the event.
Further, the disaster must have actually caused damage to the
component. If the damage was caused by an unrelated event, it is not
eligible. FEMA has proposed language in paragraphs (b)(2)(iii) through
(v) further clarifying the extent of available assistance. Those
paragraphs are discussed later in this preamble.
The language in proposed paragraph (b)(2)(ii) restates the existing
language in 44 CFR 206.117(c)(1). The substance of proposed paragraphs
(b)(2)(ii)(A), (B), and (C) is unchanged. In new paragraph (D), FEMA
proposes to remove the word ``plumbing'' because it is covered by the
terms ``water'' and ``sewage,'' which remain. In paragraph (E), FEMA
proposes to remove the word ``doors'' because they are included in
proposed paragraph (B). Proposed paragraphs (F), (G), and (H) remain
substantively unchanged except that FEMA merged the language in current
paragraph (b)(2)(iii), setting out the type of hazard mitigation
measures that are eligible, into proposed paragraph (H). FEMA intends
no substantive change in application of the regulation as a result of
these changes.
In proposed paragraph (b)(2)(iii), FEMA would clarify that not only
the type of repair, but also the eligibility of the component itself,
will vary depending on the nature of the disaster. This aligns with the
existing eligibility requirement that the component must have been
damaged by the event. The nature of an event will indicate whether the
component would likely have been damaged by it. As an example, drywall
on the second floor is unlikely to have been damaged from a three-foot
flood.
Also in proposed paragraph (b)(2)(iii), FEMA would add new language
noting that repair will be provided only to the extent that it makes
the component functional. FEMA does not provide repairs or replacement
to further improve a component beyond making it functional. IHP is not
a loss indemnification program and does not ensure that applicants are
returned to their pre-disaster living conditions. As an example, if
only the condenser is damaged on a heating and air conditioning system,
FEMA would provide assistance to repair the condenser, not replace the
entire system, even if the system is near the end of its service life.
Finally, in proposed paragraph (b)(2)(iii) FEMA restates the
limitations in current paragraph (b)(2)(ii) that replacement assistance
will only be provided when repair is not feasible, and current
paragraph (c)(1) that repairs are limited to restoring the residence to
a safe and sanitary living or functioning condition.
Proposed paragraph (b)(2)(iv) is new. It is intended to clarify the
requirement in proposed paragraph (b)(2)(i)(B) that the component was
functional immediately before the event. Components need not be fully
functional before the event, nor is it disqualifying if the component
posed a risk before the event. The key is that it must have had some
functionality before the event, and incurred a change in functionality
(must become unfunctional) as a result of the event.
Proposed paragraph (b)(2)(v) revises the content of current
paragraph (b)(2)(iv) to remove the housing repair subcap. This change
would conform the regulation to statutory changes in section 408(c)(2)
of the Stafford Act. See 42 U.S.C. 5174(c) and section 686 of Public
Law 109-295. FEMA stopped applying the subcaps when the Stafford Act
was amended, therefore, the removal of this cap from the regulatory
text will not have a substantive impact on the public. In the proposed
rule, FEMA clearly states that individuals and households may use the
entire amount of assistance available under the IHP for repair, or if
FEMA determines that repair is infeasible, for replacement.
Proposed paragraph (b)(2)(vi) remains unchanged from the text of
the current paragraph (b)(2)(v).
The language of proposed (b)(2)(vii) is new, but the substance is
not. Applicants for housing repair assistance currently have the
opportunity to appeal FEMA's eligibility determinations pursuant to 44
CFR 206.115. FEMA proposes to add an explicit cross reference to ensure
that they are aware of the opportunity.
Further, FEMA's initial determination is based on an on-scene
inspection performed by a FEMA inspector. If the applicant disagrees
with the inspection and has information that would contradict the
inspector's report, on appeal it is the applicant's responsibility to
provide the documentation so that FEMA may appropriately evaluate
eligibility. Depending on the reason for the denial or the substance of
the applicant's dispute, an applicant may need to provide proof of
occupancy, ownership, income, loss, and/or information concerning their
housing situation prior to the disaster. In case it is later needed to
support the claim, the applicant should keep, for 3 years, all receipts
and records for any housing expenses incurred as a result of the
disaster. See ``Help After a Disaster: Applicant's Guide to the
Individuals & Households Program'' at http://www.fema.gov/assistance/process/guide.shtm. This includes receipts for repair supplies and
labor. To ensure that applicants are aware of their burden of proof on
appeal, FEMA proposes to specifically highlight the documentation
needed for an appeal. These are not new requirements, because
generally, for applicants to successfully challenge a FEMA
determination, they must show proof as to why they believe the
determination was incorrect.
[[Page 44566]]
44 CFR 206.117--Paragraph (b)(3) Housing Replacement
In this paragraph, FEMA proposes five changes. First, we propose to
remove the housing replacement subcap to conform with statutory changes
to section 408(c)(2) of the Stafford Act. See 42 U.S.C. 5174(c) and
section 686 of Public Law 109-295. FEMA is no longer required to cap
the amount of available IHP assistance applied to housing replacement.
In the proposed rule, FEMA clearly states that individuals and
households may use the entire amount of assistance available under the
IHP for this purpose.
Second, we propose to remove the eligibility requirement that the
disaster-related damage meet or exceed $10,000 (as adjusted annually to
reflect changes in the CPI). FEMA proposes to remove the $10,000
subcap, but maintain the underlying intent that replacement assistance
only be provided where repair assistance is insufficient. To do so,
FEMA proposes to revise paragraph (b)(3) to allow for replacement
assistance if repair to an owner-occupied primary residence damaged by
the declared event is not feasible, will not ensure the safety or
health of the occupant, or will not make the residence functional.
Third, in response to a comment on the interim rule, FEMA proposes
to reassign the authority to approve replacement assistance awards.
FEMA proposes to change this authority from the FEMA ``Associate
Administrator'' to the FEMA ``Regional Administrator or his or her
designee.'' This change is intended to speed the processing of housing
replacement assistance.
Fourth, just as with repair assistance, applicants must meet the
eligibility requirements of 44 CFR 206.113 to be considered for
replacement assistance. The residence must also have been functional
immediately before the declared event, must have been damaged by the
event, and the damage must not have been covered by insurance. These
are the current requirements for replacement assistance; however, as
with repair assistance, the requirements are not currently set out in
checklist form in the regulations. Further, FEMA finds that it may be
confusing to applicants that the basis for the amount of replacement
assistance is in current paragraph (c), while the other eligibility
requirements are contained in paragraph (b)(3). To address this, FEMA
proposes to list the eligibility requirements in checklist form,
mirroring those elements for repair assistance. FEMA also proposes to
move the current text in paragraph (c)(2) to new paragraph (b)(3)(iii)
without substantive change.
Finally, FEMA proposes to add a new paragraph (b)(3)(iv). As with
repair assistance, FEMA finds it may be beneficial to provide a cross
reference to the appeal regulations at 44 CFR 206.115, as well as,
clarify that the applicant must also provide proof that the residence
is eligible for replacement assistance. These are not new requirements,
but merely list the necessary elements of an appeal.
44 CFR 206.117--Paragraph (b)(4) Permanent and Semi-Permanent Housing
Construction
As with current paragraph (b)(3), FEMA proposes to consolidate the
requirements for housing construction assistance by stating the
eligibility requirements in checklist format and re-designating the
current text of paragraph (b)(4) as paragraph (b)(4)(i), and moving the
current text in paragraph (c)(3) to new paragraph (b)(4)(ii) without
substantive change.
Also, section 685 of PKEMRA amended section 408(c)(4) of the
Stafford Act by inserting ``or semi-permanent'' after ``permanent'' and
by striking the word ``remote.'' These changes allow FEMA to provide
not only permanent housing construction assistance, but also to
construct semi-permanent housing. Further, this type of assistance is
no longer limited to remote locations, but can be provided in those
exceptional cases where alternative housing resources are not available
and the other types of housing assistance provided by FEMA are
unavailable, infeasible, or not cost effective. FEMA proposes to revise
its housing construction regulations in new paragraph (b)(4)(i) to
conform with these statutory changes. FEMA expects to provide this type
of assistance in very rare circumstances. Alternative housing resources
and the other types of housing assistance should sufficiently address a
community's housing needs in most circumstances.
Finally, FEMA proposes to add a new paragraph (b)(4)(iii). As with
repair and replacement assistance, FEMA finds it may be beneficial to
provide a cross reference to the appeal regulations at 44 CFR 206.115,
as well as clarify that the applicant must also provide proof that the
residence is eligible for construction assistance. These are not new
requirements, but merely list the necessary elements of an appeal.
44 CFR 206.117--Paragraph (c) Eligible Costs
As noted above, FEMA proposes to distribute the substance of
current paragraph (c) throughout proposed paragraph (b). Therefore,
FEMA proposes to remove paragraph (c).
III. Response to Comments From the Interim Rule Related to Housing
Repair Assistance
In response to the interim rule, FEMA received written comments
from five States. This section addresses the portion of those comments
regarding housing repair assistance.
Caps on Repair and Replacement Assistance
One State recommended modification of the $5,000 cap, expressing
concern that the repair cap may not bring homes into compliance with
local minimum standards. The commenter stated that where there are no
local standards, the low cap may force individuals and households to
return to unsafe conditions. FEMA agreed with the commenters regarding
the caps, and sought a modification to the statute. See 67 FR 61447.
Another commenter raised similar concerns regarding the $10,000 cap on
replacement assistance.
On October 4, 2006, PKEMRA amended section 408(c)(2) of the
Stafford Act, by removing the repair and replacement caps. See 42
U.S.C. 5174(c). This was a self-implementing change which went into
effect immediately, and FEMA no longer applies the caps. FEMA proposes
to revise current 44 CFR 206.117(b)(2)(iv) and (b)(3) to remove the
repair and replacement caps.
Approval Authority for Replacement Assistance (44 CFR 206.117(b)(3))
One State noted that approval at the Associate Administrator level
was a deterrent to timely and compassionate assistance. The commenter
recommended that the Regional Administrator be given approval authority
for replacement assistance.
In response to this comment, FEMA proposes to revise 44 CFR
206.117(b)(3) by replacing ``Associate Director'' with ``Regional
Administrator or his or her designee.'' FEMA proposes this change
because the Regional Administrator will have greater familiarity with
the damage in his or her region, and with greater decentralization
housing replacement applications may be processed faster.
IV. Individuals and Households Program Implementation Review Report
During the comment period on the interim rule, FEMA met with the
staff of five States in which the IHP was first implemented. The State
and FEMA recovery program staff that first implemented IHP worked six
disasters:
[[Page 44567]]
DR-1439-TX which resulted from severe storms, tornados, and flooding in
Texas; DR-1440-AK which resulted from an earthquake in Alaska; DR-1441-
TN which resulted from severe storms, tornados, and flooding in
Tennessee; DR-1442-AL which resulted from severe storms and tornados in
Alabama; DR-1443-MS which resulted from severe storms and tornados in
Mississippi; and DR-1444-OH which resulted from severe storms and
tornados in Ohio. The participants in the meeting were asked to
identify best practices and problems or issues that needed corrective
action. The meeting resulted in the Individuals and Households Program
Implementation Review Report (Report), a copy of which is available in
the docket for this rulemaking on www.regulations.gov. The
recommendations focused primarily on procedural or other aspects of IHP
that were not affected by this rule. Two issues in that report affect
this rulemaking. Those issues and their resolution are:
Issue: Revise the $5,000 and $10,000 statutory limits.
Status or Resolution: As discussed elsewhere in this preamble,
PKEMRA amended section 408(c)(2) of the Stafford Act, 42 U.S.C.
5174(c), by removing the repair and replacement caps. As a result, FEMA
proposes to revise the regulations to remove both the $5,000 repair cap
and the $10,000 replacement cap.
Issue: Replacement--establish uniform policy and flexible
procedures.
Status or Resolution: In this proposed rule, FEMA attempts to
improve its housing replacement assistance program. FEMA's procedures
allow for flexibility, yet protect against abuse. In this proposed
rule, FEMA delegates the decision regarding replacement eligibility to
the Regional Administrators, provides clarity and cross references to
appeal rights, clarifies eligibility criteria, and expands the amount
of assistance by removing the repair and replacement subcaps. By
clarifying the requirements, and making the regulations easier to read,
FEMA intends to create uniformity in application.
V. Records Management
The Regulation Identifier Number (RIN) listed in the September 30,
2002 interim rule and the correction to the interim rule was 3067-AD25.
When FEMA became a component of the Department of Homeland Security
(DHS) in 2003, FEMA's RINs were renumbered, and 3067-AD25 became 1660-
AA18.
The Docket ID for 1660-AA18 is FEMA-2008-0005. All of 1660-AA18's
public submissions, supporting and related documents, and rules are
posted to Docket ID FEMA-2008-0005. The public comments that addressed
housing repair assistance, the subject of this rulemaking, have also
been posted to Docket ID FEMA-2010-0035.
VI. Regulatory Analysis
A. Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563, Improving Regulation and Regulatory Review
FEMA has prepared and reviewed this rule consistent with Executive
Order 12866, Regulatory Planning and Review (58 FR 51735, Oct. 4, 1993)
as supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review (76 FR 3821, Jan. 18, 2011). This proposed rule is
not a significant regulatory action, and therefore has not been
reviewed by the Office of Management and Budget (OMB).
This proposed rule is intended to provide clarification with
respect to the eligibility for housing repair assistance, without
adding new requirements, as well as implement changes to section 408 of
the Stafford Act made by PKEMRA. See 42 U.S.C. 5174. This rule will not
impose any additional burden on the public or change the total amount
of assistance available to individuals and households since this rule
merely codifies FEMA practice since 2006.
The proposed changes resulting from PKEMRA (a) revise the
regulations to align with PKEMRA's removal of the housing repair and
replacement subcaps; (b) remove the limitation that housing
construction assistance be provided only in a ``remote'' area, if the
location is not otherwise insular (outside the continental United
States); and (c) incorporate FEMA's new authority to provide assistance
for the construction of ``semi-permanent'' housing.
When the current regulations were written, FEMA was prohibited from
providing more than $5,000 (adjusted annually to reflect changes in the
CPI) for repair assistance, and more than $10,000 (adjusted annually to
reflect changes in the CPI) for replacement assistance under the
Disaster Mitigation Act of 2000. These subcaps prevented applicants
from spending all of their available IHP assistance (in fiscal year
2012, this amount is $31,400 per declared event (76 FR 63940, Oct. 14,
2011)) on housing repair or replacement, leaving nothing for their
other needs such as clothing, funeral, or medical costs. The change in
PKEMRA was self implementing and immediately went into effect. FEMA is
no longer required to apply subcaps and has not applied them since
PKEMRA became law in 2006. This rule change is intended to revise the
regulations to conform to the statutory change and FEMA's current
practice. It would not change the eligibility criteria and would not
reduce the total amount of assistance available to individuals and
households. This proposed change would not have an economic impact
because it merely codifies FEMA current practice.
This rule also proposes to remove the term ``remote'' from 44 CFR
206.117(b)(3) to implement new authority to provide housing
construction assistance in areas within the continental United States
where alternative housing resources are not available, infeasible, or
not cost effective. Currently, FEMA's regulations limit this type of
assistance to only locations that are insular or remote. This proposed
rule change would implement PKEMRA by providing housing construction
assistance to disaster survivors in areas where alternative housing
resources are not feasible. This rule change provides more flexibility
for FEMA to meet the housing needs for disaster survivors, although it
is expected that FEMA will only rarely exercise this authority. This is
because alternative housing resources, such as rental units,
manufactured housing, recreational vehicles, other readily fabricated
dwellings, or FEMA-provided temporary housing units, typically are
available within the continental United States. FEMA has not yet
provided any direct assistance for housing construction in areas other
than those that are remote and insular. This proposed change is not
expected to have a significant economic impact or to negatively affect
the eligibility criteria for assistance. Any economic impact from this
proposed rule change would be an increase in Federal grant funds
provided to individuals and households to provide housing in those
extremely rare cases where alternative housing resources are not
available, infeasible, or not cost effective. There would be no
increased burden imposed on the public from this proposed change. There
is no economic impact to this proposed change because this proposed
rule merely codifies FEMA current practice since 2006.
This rule also proposes to add ``semi-permanent'' to the types of
housing that could be constructed. This type of housing would be that
with a life expectancy of more than 5 years, but
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less than 25 years. While FEMA already provides temporary and permanent
housing, by implementing this new authority, FEMA would have greater
flexibility to meet the needs of a particular community, where the
construction of a type of housing other than a long-term permanent
structure may be more appropriate. Although this rule change is likely
to provide more flexibility for FEMA to meet the housing needs for
disaster survivors, it is not expected that FEMA will regularly
exercise this authority. This proposed rule change would implement
PKEMRA by giving FEMA more options in providing housing assistance to
disaster survivors. It would not reduce the number of individuals or
households eligible for housing assistance and would not affect
eligibility requirements. There is no economic impact to this proposed
change because this proposed rule merely codifies FEMA current
practice.
B. Paperwork Reduction Act of 1995
FEMA determined that this proposed 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 Office of Management and Budget (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, 2013 and ``Federal Assistance to Individuals and Households Program
(IHP)'', OMB control number 1660-0061, expiration date October 31,
2014. There would be no additional paperwork burden as a result of the
changes proposed in this rule.
C. 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.
This proposed rule clarifies the eligibility criteria for housing
repair, replacement, and construction assistance to individuals and
households. It will not have an economic impact on small entities
because it merely codifies FEMA current practice since PKEMRA became
law in 2006. FEMA certifies that this rulemaking will not have a
significant economic impact on a substantial number of small entities.
D. Privacy Act
The Privacy Act of 1974, 5 U.S.C. 552a, establishes a code of fair
information practices that governs the collection, maintenance, use,
and dissemination of personally identifiable information about
individuals that is maintained in systems of records by Federal
agencies. 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 identifier assigned to the individual. 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 contains personally identifiable information about IHP
applicants seeking housing repair, replacement, or construction
assistance. The application resource center is contained in a Privacy
Act System of Records entitled ``Disaster Recovery Assistance Files''
number ``DHS/FEMA-008'' which published on September 24, 2009 in the
Federal Register at 74 FR 48763. This proposed rule would not change
the application materials received or result in a new collection of
personally identifiable information about individuals.
E. National Environmental Policy Act
Under the National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. 4321 et seq., an agency must prepare an environmental assessment
and 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. Most
activities under section 408 and prior section 411 of the Stafford Act
pertaining to temporary housing and financial assistance are
categorically excluded from NEPA review under 44 CFR 10.8(d)(2)(xix)(D)
and (F). Before undertaking other activities that are not categorically
excluded (e.g., placement of manufactured temporary housing units on
FEMA-constructed group sites; permanent or semi-permanent housing
construction), FEMA follows the procedures set forth in 44 CFR part 10
to assure NEPA compliance.
F. Executive Order 13132, Federalism
Executive Order 13132, Federalism, 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.
See Executive Order 13132, 64 FR 43255, Aug. 10, 1999. 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
proposed rule is provided to individuals and families, and would not
have federalism implications.
G. Executive Orders 11988 and 11990, Floodplain Management and
Protection of Wetlands
Under Executive Order 11988, Floodplain Management, as amended,
Federal agencies are required to ``provide leadership 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.'' See Executive Order 11988,
as amended, 42 FR 26951, May 25, 1977, 44 FR 43239, July 20, 1979.
Under Executive Order 11990, Protection of Wetlands, Federal agencies
are required to ``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.'' See Executive Order 11990, as amended,
42 FR 26961, May 25, 1977, 52 FR 34617, Sept. 14, 1987. 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. The changes proposed in
this rule would not have an effect on land use, floodplain management
or wetlands. When FEMA undertakes specific actions that may
[[Page 44569]]
have such effects (e.g., placement of manufactured temporary housing
units on FEMA-constructed group sites; permanent or semi-permanent
housing construction), FEMA follows the procedures set forth in 44 CFR
part 9 to assure compliance with these Executive Orders.
H. Executive Order 13045, Protection of Children From Environmental
Health Risk and Safety Risks
FEMA has analyzed this proposed 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.
I. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et
seq., pertains to any 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 or more (adjusted annually for
inflation) in any one year. The Act also applies to any regulatory
requirements that might significantly or uniquely affect small
governments. FEMA has determined that this proposed rule would not
result in the expenditure by State, local and Tribal governments, in
the aggregate, nor by the private sector, of $100,000,000 or more in
any one year as a result of a Federal mandate, nor would it
significantly or uniquely affect small governments.
J. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments, FEMA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian Tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
Government provides the funds necessary to pay the direct compliance
costs incurred by the Tribal government, or FEMA consults with those
governments. See Executive Order 13175, 65 FR 67249, Nov. 9, 2000. This
proposed rule would not significantly or uniquely affect the
communities of Indian Tribal governments, nor would this proposed
rulemaking impose substantial direct compliance costs on those
communities.
K. Executive Order 12898, Environmental Justice
Under Executive Order 12898, Environmental Justice, each Federal
agency must 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 because of their
race, color, or national origin. See Executive Order 12898, 59 FR 7629,
Feb. 16, 1994. FEMA has incorporated environmental justice into its
policies and programs.
The proposed housing repair, replacement and construction
assistance regulations intentionally contain provisions that ensure
they would not have a disproportionately high and adverse human health
effect on any segment of the population. This rulemaking clarifies the
eligibility requirements for assistance, and in doing so, maintains
focus on the functionality of the component being repaired or replaced,
and does not consider income or home value. Section 408 of the Stafford
Act requires that such assistance be granted only for damage caused by
a disaster event. Non-disaster related damage is not eligible for
assistance under the Stafford Act. To ensure that this limitation will
not be improperly exclusive, this proposed rule would clarify that
components being repaired or residences being replaced need not be in
full working order before the event to qualify for assistance.
Components or residences that were fully or partially functional
immediately before the declared event, despite their need for
maintenance, may be eligible for repair assistance if they ceased to
function as a result of the disaster.
One commenter stated that the proposed 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 stressed that low-income
individuals were less likely to qualify for SBA loans, and Other Needs
Assistance does not assist with structural repairs. Consequently, low-
income individuals might have no choice but to move back into an
unsuitable environment. The commenter recommended the liberal use of
replacement assistance to provide additional help for the financially
challenged.
As discussed elsewhere in this preamble, the $5,000 subcap is no
longer in effect, and individuals and households may use up to the full
amount of IHP funds ($31,400 for fiscal year 2012) for repair and
replacement assistance. See 76 FR 63940 (Oct. 14, 2011). This figure is
adjusted annually to reflect changes in the Consumer Price Index (CPI).
No action that FEMA can anticipate under this proposed 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.
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 affect a taking of private property or
otherwise have taking implications under Executive Order 12630.
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 community
development, Natural
[[Page 44570]]
resources, Penalties, and Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Federal Emergency
Management Agency proposes to amend 44 CFR part 206 as follows:
PART 206--FEDERAL DISASTER ASSISTANCE
1. The authority citation for part 206 continues to read as
follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; Reorganization Plan No.
3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security
Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412;
and E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.
2. Amend Sec. 206.117 to remove paragraph (c) and to revise
paragraphs (a), (b)(2), (b)(3), and (b)(4) to read as follows:
Sec. 206.117 Housing assistance.
(a) Definitions. The definitions in this paragraph apply to this
section only.
Caused by the disaster means as a direct result of a peril
identified in the Federal Register Notice of a Presidentially-declared
major disaster or emergency, the component is no longer functional.
Real Property Component or Component means each individual part of
a dwelling that makes it habitable, as enumerated in paragraph
(b)(2)(ii) of this section.
Semi-Permanent Housing means housing designed and constructed with
finishes, material, and systems selected for moderate (or better)
energy efficiency, maintenance, and life cycle cost, and with a life
expectancy of more than 5 years but less than 25 years.
(b) * * *
(2) Repairs. (i) FEMA may provide financial assistance for the
repair of real property components in an owner's primary residence if:
(A) The eligibility criteria in Sec. 206.113 are met;
(B) The component was functional immediately before the declared
event;
(C) The component was damaged, and the damage was caused by the
disaster;
(D) The damage to the component is not covered by insurance; and
(E) Repair of the component is necessary to ensure the safety or
health of the occupant or to make the residence functional.
(ii) FEMA may provide financial assistance for the repair of:
(A) Structural components of the residence. This includes real
property components, such as the foundation, exterior walls, and roof.
(B) Windows and doors.
(C) The Heating, Ventilation and Air Conditioning system.
(D) Utility systems. This includes electrical, gas, water and
sewage systems.
(E) Interior components. This includes, but is not limited to, the
structure's floors, walls, ceilings, and cabinetry.
(F) The structure's access and egress, including privately owned
access roads and privately owned bridges.
(G) Blocking, leveling, and anchoring of a mobile home, and
reconnecting or resetting mobile home sewer, water, electrical and fuel
lines and tanks.
(H) Items or services determined to be eligible hazard mitigation
measures that reduce the likelihood of future damage to the residence,
utilities, or infrastructure.
(iii) The components that may be deemed eligible for repair
assistance, and the type of repairs authorized, will vary depending
upon the nature of the disaster. Repairs are limited to restoration of
the dwelling to a safe and sanitary living or functioning condition.
Repair assistance will only be provided to the extent that the work
makes the component functional. FEMA may provide for the replacement of
components if repair is not feasible. The repairs of components must be
of average quality, size, and capacity, taking into consideration the
needs of the occupant.
(iv) 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.
(v) Eligible individuals or households may receive up to the
maximum amount of assistance (See Sec. 206.110(b)) to repair damages
to their primary residence irrespective of other financial resources,
except insurance proceeds.
(vi) The individual or household is responsible for obtaining all
local permits or inspections that applicable State or local building
codes may require.
(vii) 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 Sec. 206.115. In
addition to the requirements in Sec. 206.115, the applicant must
provide proof that the component meets the requirements of paragraph
(b)(2)(i) of this section, including that the component was functional
before the declared event and proof that the declared event caused the
component to stop functioning. If the applicant disputes the amount of
repair assistance awarded, the applicant must also provide
justification for the amount sought.
(3) Housing Replacement. (i) FEMA may provide financial assistance
for the replacement of an owner's primary residence if:
(A) The eligibility criteria in Sec. 206.113 are met;
(B) The residence was functional immediately before the disaster;
(C) The residence was destroyed, and the damage was caused by, the
disaster;
(D) The damage to the residence is not covered by insurance;
(E) Repair is not feasible, will not ensure the safety or health of
the occupant, or will not make the residence functional; and
(F) Replacement is necessary to ensure the safety or health of the
occupant.
(ii) All replacement assistance awards must be approved by the
Regional Administrator or his/her designee. If replacement assistance
is granted, the applicant may either use the maximum amount of
assistance (See Sec. 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 verified
disaster-related level of damage to the dwelling, or the statutory
maximum (See Sec. 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 Sec. 206.115.
In addition to the requirements in Sec. 206.115, the applicant must
provide proof that repair is not feasible, or will not ensure the
safety or health of the occupant or make the residence functional. If
the applicant disputes the amount of replacement assistance awarded,
the applicant must also provide justification for the amount sought.
(4) Permanent and semi-permanent housing construction. (i) FEMA may
provide financial or direct assistance to applicants for the purpose of
constructing permanent and semi-permanent housing if:
(A) The eligibility criteria in Sec. 206.113 are met;
(B) The residence was functional immediately before the declared
event;
(C) The residence was damaged by the event;
(D) The damage to the residence is not covered by insurance;
(E) The residence was an owner-occupied primary residence; and
[[Page 44571]]
(F) The residence is located in an insular area outside the
continental United States or in another location where alternative
housing resources are not available and the types of financial or
direct temporary housing assistance described in paragraphs (b)(1),
(2), and (3) of this section are unavailable, infeasible, or not cost-
effective.
(ii) Permanent and semi-permanent housing construction, in general,
must be consistent with current minimal local building codes and
standards where they exist, or minimal acceptable construction industry
standards in the area, including reasonable hazard mitigation measures,
and Federal environmental laws and regulations. Dwellings will be of
average quality, size and capacity, taking into consideration the needs
of the occupant.
(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 Sec. 206.115.
In addition to the requirements in Sec. 206.115, the applicant must
provide proof that the property is either located in an insular area
outside the continental United States, or in a location where
alternative housing resources are not available. The applicant must
also provide proof that the types of financial or direct temporary
housing assistance described in paragraph (b)(1) of this section are
unavailable, infeasible, or not cost effective. If the applicant
disputes the amount of construction assistance awarded, the applicant
must also provide justification for the amount sought.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2012-18568 Filed 7-27-12; 8:45 am]
BILLING CODE 9111-23-P