Federal Disaster Assistance for Disasters Declared On or After November 23, 1988 part 2

Federal Emergency Management Agency
§§ 206.209–206.219

[Reserved]

Subpart H—Public Assistance
Eligibility
SOURCE: 55 FR 2307, Jan. 23, 1990, unless
otherwise noted.

§ 206.220

General.

This subpart provides policies and
procedures for determinations of eligibility of applicants for public assistance, eligibility of work, and eligibility
of costs for assistance under sections
402, 403, 406, 407, 418, 419, 421(d), 502, and
503 of the Stafford Act. Assistance
under this subpart must also conform
to requirements of 44 CFR part 201,
Mitigation Planning, and 44 CFR part
206, subparts G—Public Assistance
Project Administration, I—Public Assistance Insurance Requirements, J—
Coastal Barrier Resources Act, and M—
Minimum
Standards.
Regulations
under 44 CFR part 9—Floodplain Management and 44 CFR part 10—Environmental Considerations, also apply to
this assistance.
[67 FR 8854, Feb. 26, 2002]

§ 206.221

Definitions.

(a) Educational institution means:
(1) Any elementary school as defined
by section 801(c) of the Elementary and
Secondary Education Act of 1965; or
(2) Any secondary school as defined
by section 801(h) of the Elementary and
Secondary Education Act of 1965; or
(3) Any institution of higher education as defined by section 1201 of the
Higher Education Act of 1965.
(b) Force account means an applicant’s own labor forces and equipment.
(c) Immediate threat means the threat
of additional damage or destruction
from an event which can reasonably be
expected to occur within five years.
(d) Improved property means a structure, facility or item of equipment
which was built, constructed or manufactured. Land used for agricultural
purposes is not improved property.
(e) Private nonprofit facility means
any private nonprofit educational, utility, emergency, medical, or custodial
care facility, including a facility for
the aged or disabled, and other facility

§ 206.221

providing essential governmental type
services to the general public, and such
facilities on Indian reservations. Further definition is as follows:
(1) Educational facilities means classrooms plus related supplies, equipment,
machinery, and utilities of an educational institution necessary or appropriate for instructional, administrative, and support purposes, but does
not include buildings, structures and
related items used primarily for religious purposes or instruction.
(2) Utility means buildings, structures, or systems of energy, communication, water supply, sewage collection and treatment, or other similar
public service facilities.
(3) Irrigation facility means those facilities that provide water for essential
services of a governmental nature to
the general public. Irrigation facilities
include water for fire suppression, generating and supplying electricity, and
drinking water supply; they do not include water for agricultural purposes.
(4) Emergency facility means those
buildings, structures, equipment, or
systems used to provide emergency
services, such as fire protection, ambulance, or rescue, to the general public,
including the administrative and support facilities essential to the operation of such emergency facilities even
if not contiguous.
(5) Medical facility means any hospital, outpatient facility, rehabilitation facility, or facility for long term
care as such terms are defined in section 645 of the Public Health Service
Act (42 U.S.C. 2910) and any similar facility offering diagnosis or treatment
of mental or physical injury or disease,
includng the administrative and support facilities essential to the operation of such medical facilities even if
not contiguous.
(6) Custodial care facility means those
buildings, structures, or systems including those for essential administration and support, which are used to
provide institutional care for persons
who require close supervision and some
physical constraints on their daily activities for their self-protection, but do
not require day-to-day medical care.

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§ 206.222

44 CFR Ch. I (10–1–02 Edition)

(7) Other essential governmental service
facility means museums, zoos, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, shelter workshops and
facilities which provide health and
safety services of a governmental nature. All such facilities must be open
to the general public.
(f) Private nonprofit organization
means any nongovernmental agency or
entity that currently has:
(1) An effective ruling letter from the
U.S. Internal Revenue Service, granting tax exemption under sections
501(c), (d), or (e) of the Internal Revenue Code of 1954, or
(2) Satisfactory evidence from the
State that the nonrevenue producing
organization or entity is a nonprofit
one organized or doing business under
State law.
(g) Public entity means an organization formed for a public purpose whose
direction and funding are provided by
one or more political subdivisions of
the State.
(h) Public facility means the following
facilities owned by a State or local
government: any flood control, navigation, irrigation, reclamation, public
power, sewage treatment and collection, water supply and distribution,
watershed development, or airport facility; any non-Federal aid, street,
road, or highway; and any other public
building, structure, or system, including those used for educational, recreational, or cultural purposes; or any
park.
(i) Standards means codes, specifications or standards required for the construction of facilities.
[55 FR 2307, Jan. 23, 1990, as amended at 58
FR 47994, Sept. 14, 1993; 66 FR 22445, May 4,
2001]

§ 206.222 Applicant eligibility.
The following entities are eligible to
apply for assistance under the State
public assistance grant:
(a) State and local governments.
(b) Private non-profit organizations
or institutions which own or operate a
private nonprofit facility as defined in
§ 205.221(e).
(c) Indian tribes or authorized tribal
organizations and Alaska Native villages or organizations, but not Alaska

Native Corporations, the ownership of
which is vested in private individuals.
§ 206.223 General work eligibility.
(a) General. To be eligible for financial assistance, an item of work must:
(1) Be required as the result of the
major disaster event,
(2) Be located within a designated
disaster area, and
(3) Be the legal responsibility of an
eligible applicant.
(b) Private nonprofit facilities. To be
eligible, all private nonprofit facilities
must be owned and operated by an organization meeting the definition of a
private nonprofit organization [see
§ 206.221(f)].
(c) Public entities. Facilities belonging
to a public entity may be eligible for
assistance when the application is submitted through the State or a political
subdivision of the State.
(d) Facilities serving a rural community
or unincorporated town or village. To be
eligible for assistance, a facility not
owned by an eligible applicant, as defined in § 206.222, must be owned by a
private nonprofit organization; and
provide an essential governmental
service to the general public. Applications for these facilities must be submitted through a State or political
subdivision of the State.
(e) Negligence. No assistance will be
provided to an applicant for damages
caused by its own negligence. If negligence by another party results in
damages, assistance may be provided,
but will be conditioned on agreement
by the applicant to cooperate with
FEMA in all efforts necessary to recover the cost of such assistance from
the negligent party.
§ 206.224 Debris removal.
(a) Public interest. Upon determination that debris removal is in the public interest, the Regional Director may
provide assistance for the removal of
debris and wreckage from publicly and
privately owned lands and waters. Such
removal is in the public interest when
it is necessary to:
(1) Eliminate immediate threats to
life, public health, and safety; or
(2) Eliminate immediate threats of
significant damage to improved public
or private property; or

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Federal Emergency Management Agency
(3) Ensure economic recovery of the
affected community to the benefit of
the community-at-large; or
(4) Mitigate the risk to life and property by removing substantially damaged structures and associated appurtenances as needed to convert property
acquired through a FEMA hazard mitigation program to uses compatible
with open space, recreation, or wetlands management practices. Such removal must be completed within two
years of the declaration date, unless
the Associate Director for Readiness,
Response and Recovery extends this period.
(b) Debris removal from private property. When it is in the public interest
for an eligible applicant to remove debris from private property in urban,
suburban and rural areas, including
large lots, clearance of the living, recreational and working area is eligible
except those areas used for crops and
livestock or unused areas.
(c) Assistance to individuals and private
organizations. No assistance will be provided directly to an individual or private organization, or to an eligible applicant for reimbursement of an individual or private organization, for the
cost of removing debris from their own
property. Exceptions to this are those
private nonprofit organizations operating eligible facilities.
[55 FR 2307, Jan. 23, 1990, as amended at 66
FR 33901, June 26, 2001]

§ 206.225 Emergency work.
(a) General. (1) Emergency protective
measures to save lives, to protect public health and safety, and to protect
improved property are eligible.
(2) In determining whether emergency work is required, the Regional
Director may require certification by
local State, and/or Federal officials
that a threat exists, including identification and evaluation of the threat
and recommendations of the emergency work necessary to cope with the
threat.
(3) In order to be eligible, emergency
protective measures must:
(i) Eliminate or lessen immediate
threats to live, public health or safety;
or
(ii) Eliminate or lessen immediate
threats of significant additional dam-

§ 206.226

age to improved public or private property through measures which are cost
effective.
(b) Emergency access. An access facility that is not publicly owned or is not
the direct responsibility of an eligible
applicant for repair or maintenance
may be eligible for emergency repairs
or replacement provided that emergency repair or replacement of the facility economically eliminates the
need for temporary housing. The work
will be limited to that necessary for
the access to remain passable through
events which can be considered an immediate threat. The work must be performed by an eligible applicant and
will be subject to cost sharing requirements.
(c) Emergency communications. Emergency communications necessary for
the purpose of carrying out disaster relief functions may be established and
may be made available to State and
local government officials as deemed
appropriate. Such communications are
intended to supplement but not replace
normal communications that remain
operable after a major disaster. FEMA
funding for such communications will
be discontinued as soon as the needs
have been met.
(d) Emergency public transportation.
Emergency public transportation to
meet emergency needs and to provide
transportation to public places and
such other places as necessary for the
community to resume its normal pattern of life as soon as possible is eligible. Such transportation is intended to
supplement but not replace predisaster
transportation facilities that remain
operable after a major disaster. FEMA
funding for such transportation will be
discontinued as soon as the needs have
been met.
§ 206.226 Restoration of damaged facilities.
Work to restore eligible facilities on
the basis of the design of such facilities
as they existed immediately prior to
the disaster and in conformity with the
following is eligible:
(a) Assistance under other Federal
agency (OFA) programs. (1) Generally,
disaster assistance will not be made
available under the Stafford Act when

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§ 206.226

44 CFR Ch. I (10–1–02 Edition)

another Federal agency has specific authority to restore facilities damaged or
destroyed by an event which is declared a major disaster.
(2) An exception to the policy described in paragraph (a)(1) of this section exists for public elementary and
secondary school facilities which are
otherwise eligible for assistance from
the Department of Education (ED)
under 20 U.S.C. 241–1 and 20 U.S.C. 646.
Such facilities are also eligible for assistance from FEMA under the Stafford
Act, and grantees shall accept applications from local educational agencies
for assistance under the Stafford Act.
(3) The exception does not cover payment of increased current operating expenses or replacement of lost revenues
as provided in 20 U.S.C. 241–1(a) and implemented by 34 CFR 219.14. Such assistance shall continue to be granted
and administered by the Department of
Education.
(b) Mitigation planning. In order to receive assistance under this section, as
of November 1, 2003, the State must
have in place a FEMA approved State
Mitigation Plan in accordance with 44
CFR part 201.
(c) Private nonprofit facilities. Eligible
private nonprofit facilities may receive
funding under the following conditions:
(1) The facility provides critical services, which include power, water (including water provided by an irrigation
organization or facility in accordance
with § 206.221(e)(3)), sewer services,
wastewater treatment, communications, emergency medical care, fire department services, emergency rescue,
and nursing homes; or
(2) The private nonprofit organization not falling within the criteria of
§ 206.226(b)(1) has applied for a disaster
loan under section 7(b) of the Small
Business Act (15 U.S.C.636(b)) and
(i) The Small Business Administration has declined the organization’s application; or
(ii) Has eligible damages greater than
the maximum amount of the loan for
which it is eligible, in which case the
excess damages are eligible for FEMA
assistance.
(d) Standards. For the costs of Federal, State, and local repair or replacement standards which change the

predisaster construction of facility to
be eligible, the standards must:
(1) Apply to the type of repair or restoration required;
(Standards may be different for new
construction and repair work)
(2) Be appropriate to the predisaster
use of the facility;
(3)(i) Be found reasonable, in writing,
and formally adopted and implemented
by the State or local government on or
before the disaster declaration date or
be a legal Federal requirement applicable to the type of restoration.
(ii) This paragraph (b) applies to
local governments on January 1, 1999
and to States on January 1, 2000. Until
the respective applicability dates, the
standards must be in writing and formally adopted by the applicant prior to
project approval or be a legal Federal
or State requirement applicable to the
type of restoration.
(4) Apply uniformly to all similar
types of facilities within the jurisdiction of owner of the facility; and
(5) For any standard in effect at the
time of a disaster, it must have been
enforced during the time it was in effect.
(e) Hazard mitigation. In approving
grant assistance for restoration of facilities, the Regional Director may require cost effective hazard mitigation
measures not required by applicable
standards. The cost of any requirements for hazard mitigation placed on
restoration projects by FEMA will be
an eligible cost for FEMA assistance.
(f) Repair vs. replacement. (1) A facility is considered repairable when disaster damages do not exceed 50 percent
of the cost of replacing a facility to its
predisaster condition, and it is feasible
to repair the facility so that it can perform the function for which it was
being used as well as it did immediately prior to the disaster.
(2) If a damaged facility is not repairable in accordance with paragraph
(d)(1) of this section, approved restorative work may include replacement of
the facility. The applicant may elect to
perform repairs to the facility, in lieu
of replacement, if such work is in conformity with applicable standards.
However, eligible costs shall be limited
to the less expensive of repairs or replacement.

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Federal Emergency Management Agency
(3) An exception to the limitation in
paragraph (d)(2) of this section may be
allowed for facilities eligible for or on
the National Register of Historic Properties. If an applicable standard requires repair in a certain manner, costs
associated with that standard will be
eligible.
(g) Relocation. (1) The Regional Director may approve funding for and require restoration of a destroyed facility at a new location when:
(i) The facility is and will be subject
to repetitive heavy damage;
(ii) The approval is not barred by
other provisions of title 44 CFR; and
(iii) The overall project, including all
costs, is cost effective.
(2) When relocation is required by the
Regional Director, eligible work includes land acquisition and ancillary
facilities such as roads and utilities, in
addition to work normally eligible as
part of a facility reconstruction. Demolition and removal of the old facility is
also an eligible cost.
(3) When relocation is required by the
Regional Director, no future funding
for repair or replacement of a facility
at the original site will be approved,
except those facilities which facilitate
an open space use in accordance with 44
CFR part 9.
(4) When relocation is required by the
Regional Director, and, instead of relocation, the applicant requests approval
of
an
alternate
project
[see
§ 206.203(d)(2)], eligible costs will be
limited to 90 percent of the estimate of
restoration at the original location excluding hazard mitigation measures.
(5) If relocation of a facility is not
feasible or cost effective, the Regional
Director shall disapprove Federal funding for the original location when he/
she determines in accordance with 44
CFR parts 9, 10, 201, or subpart M of
this part 206, that restoration in the
original location is not allowed. In
such cases, an alternative project may
be applied for.
(h) Equipment and furnishings. If
equipment and furnishings are damaged beyond repair, comparable items
are eligible as replacement items.
(i) Library books and publications. Replacement of library books and publications is based on an inventory of the
quantities of various categories of

§ 206.228

books or publications damaged or destroyed. Cataloging and other work incidental to replacement are eligible.
(j) Beaches. (1) Replacement of sand
on an unimproved natural beach is not
eligible.
(2) Improved beaches. Work on an improved beach may be eligible under the
following conditions:
(i) The beach was constructed by the
placement of sand (of proper grain size)
to a designed elevation, width, and
slope; and
(ii) A maintenance program involving periodic renourishment of sand
must have been established and adhered to by the applicant.
(k) Restrictions—(1) Alternative use facilities. If a facility was being used for
purposes other than those for which it
was designed, restoration will only be
eligible to the extent necessary to restore the immediate predisaster alternate purpose.
(2) Inactive facilities. Facilities that
were not in active use at the time of
the disaster are not eligible except in
those instances where the facilities
were only temporarily inoperative for
repairs or remodeling, or where active
use by the applicant was firmly established in an approved budget or the
owner can demonstrate to FEMA’s satisfaction an intent to begin use within
a reasonable time.
[55 FR 2307, Jan. 23, 1990, as amended at 58
FR 55022, Oct. 25, 1993; 63 FR 5897, Feb. 5, 1998;
66 FR 22445, May 4, 2001; 67 FR 8854, Feb. 26,
2002]

§ 206.227

Snow assistance.

Emergency or major disaster declarations based on snow or blizzard conditions will be made only for cases of
record or near record snowstorms, as
established by official government
records. Federal assistance will be provided for all costs eligible under 44 CFR
206.225 for a specified period of time
which will be determined by the circumstances of the event.
[62 FR 45330, Aug. 27, 1997]

§ 206.228

Allowable costs.

General policies for determining allowable costs are established in 44 CFR

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§ 206.228

44 CFR Ch. I (10–1–02 Edition)

13.22. Exceptions to those policies as allowed in 44 CFR 13.4 and 13.6 are explained below.
(a) Eligible direct costs—(1) Applicantowned equipment. Reimbursement for
ownership and operation costs of applicant-owned equipment used to perform
eligible work shall be provided in accordance with the following guidelines:
(i) Rates established under State guidelines. In those cases where an applicant
uses reasonable rates which have been
established or approved under State
guidelines, in its normal daily operations, reimbursement for applicantowned equipment which has an hourly
rate of $75 or less shall be based on
such rates. Reimbursement for equipment which has an hourly rate in excess of $75 shall be determined on a
case by case basis by FEMA.
(ii) Rates established under local guidelines. Where local guidelines are used to
establish equipment rates, reimbursement will be based on those rates or
rates in a Schedule of Equipment Rates
published by FEMA, whichever is
lower. If an applicant certifies that its
locally established rates do not reflect
actual costs, reimbursement may be
based on the FEMA Schedule of Equipment Rates, but the applicant will be
expected to provide documentation if
requested. If an applicant wishes to
claim an equipment rate which exceeds
the FEMA Schedule, it must document
the basis for that rate and obtain
FEMA approval of an alternate rate.
(iii) No established rates. The FEMA
Schedule of Equipment Rates will be
the basis for reimbursement in all
cases where an applicant does not have
established equipment rates.
(2) Statutory Administrative Costs—(i)
Grantee. Under section 406(f)(2) of the
Stafford Act, we will pay you, the
State, an allowance to cover the extraordinary costs that you incur to formulate Project Worksheets for small
and large projects, to validate small
projects, to prepare final inspection reports, project applications, final audits, and to make related field inspections by State employees. Eligible
costs include overtime pay and per
diem and travel expenses, but do not
include regular time for your State employees. The allowance to the State
will be based on the following percent-

ages of the total amount of Federal assistance that we provide for all subgrantees in the State under sections
403, 406, 407, 502, and 503 of the Act:
(A) For the first $100,000 of total assistance provided (Federal share), three
percent of such assistance.
(B) For the next $900,000, two percent
of such assistance.
(C) For the next $4,000,000, one percent of such assistance.
(D) For assistance over $5,000,000,
one-half percent of such assistance.
(ii) Subgrantee. Pursuant to section
406(f)(1) of the Stafford Act, necessary
costs of requesting, obtaining, and administering Federal disaster assistance
subgrants will be covered by an allowance which is based on the following
percentages of net eligible costs under
sections 403, 406, 407, 502, and 503 of the
Act, for an individual applicant (applicants in this context include State
agencies):
(A) For the first $100,000 of net eligible costs, three percent of such costs;
(B) For the next $900,000, two percent
of such costs;
(C) For the next $4,000,000, one percent of such costs;
(D) For those costs over $5,000,000,
one-half percent of such costs.
(3) State Management Administrative Costs.
(i) Grantee. Except for the items listed in paragraph (a)(2)(i) of this section,
other administrative costs shall be
paid in accordance with 44 CFR 13.22.
(ii) Subgrantee. No other administrative costs of a subgrantee are eligible
because the percentage allowance in
paragraph (a)(2)(ii) of this section covers necessary costs of requesting, obtaining and administering Federal assistance.
(4) Force Account Labor Costs. The
straight- or regular-time salaries and
benefits of a subgrantee’s permanently
employed personnel are not eligible in
calculating the cost of eligible work
under sections 403 and 407 of the Stafford Act, 42 U.S.C. 5170b and 5173. For
the performance of eligible permanent
restoration under section 406 of the
Act, 42 U.S.C. 5172, straight-time salaries and benefits of a subgrantee’s permanently employed personnel are eligible.

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Federal Emergency Management Agency
(b) Eligible indirect costs—(1) Grantee.
Indirect costs of administering the disaster program are eligible in accordance with the provisions of 44 CFR part
13 and OMB Circular A–87.
(2) Subgrantee. No indirect costs of a
subgrantee are separately eligible because the percentage allowance in
paragraph (a)(2)(ii) of this section covers necessary costs of requesting, obtaining and administering Federal assistance.
[55 FR 2307, Jan. 23, 1990, as amended at 58
FR 47996, Sept. 14, 1993; 63 FR 64426, Nov. 20,
1998; 64 FR 55161, Oct. 12, 1999]

§§ 206.229–206.249

[Reserved]

Subpart I—Public Assistance
Insurance Requirements
SOURCE: 56 FR 64560, Dec. 11, 1991, unless
otherwise noted.

§ 206.250 General.
(a) Sections 311 and 406(d) of the Stafford Act, and the Flood Disaster Protection Act of 1973, Public Law 93–234,
set forth certain insurance requirements which apply to disaster assistance provided by FEMA. The requirements of this subpart apply to all assistance provided pursuant to section
406 of the Stafford Act with respect to
any major disaster declared by the
President after November 23, 1988.
(b) Insurance requirements prescribed in this subpart shall apply
equally to private nonprofit (PNP) facilities which receive assistance under
section 406 of the Act. PNP organizations shall submit the necessary documentation and assurances required by
this subpart to the Grantee.
(c) Actual and anticipated insurance
recoveries shall be deducted from otherwise eligible costs, in accordance
with this subpart.
(d) The full coverage available under
the standard flood insurance policy
from the National Flood Insurance
Program (NFIP) will be subtracted
from otherwise eligible costs for a
building and its contents within the
special flood hazard area in accordance
with § 206.252.
(e) The insurance requirements of
this subpart should not be interpreted
as a substitute for various hazard miti-

§ 206.252

gation techniques which may be available to reduce the incidence and severity of future damage.
§ 206.251

Definitions.

(a) Assistance means any form of a
Federal grant under section 406 of the
Stafford Act to replace, restore, repair,
reconstruct, or construct any facility
and/or its contents as a result of a
major disaster.
(b) Building means a walled and
roofed structure, other than a gas, or
liquid storage tank, that is principally
above ground and affixed to a permanent site, as well as a manufactured
home on a permanent foundation.
(c) Community means any State or political subdivision thereof, or any Indian tribe or authorized tribal organization, or Alaskan Native Village or
authorized native organization which
has authority to adopt and enforce
floodplain management regulations for
the areas within its jurisdiction.
(d) National Flood Insurance Program
(NFIP) means the program authorized
by the National Flood Insurance Act of
1968, as amended, 42 U.S.C. 4001 et seq.
(e) Special flood hazard area means an
area having special flood, mudslide,
and/or flood-related erosion hazards,
and shown on a Flood Hazard Boundary
map (FHBM) or the Flood Insurance
Rate Map (FIRM) issued by FEMA as
Zone A, AO, A1–30, AE, A99, AH, VO,
V1–30 VE, V, M, or E. ‘‘Special flood
hazard area’’ is synonymous with
‘‘special hazard area’’, as defined in 44
CFR part 59.
(f) Standard Flood Insurance Policy
means the flood insurance policy issued
by the Federal Insurance Administrator, or by a Write-Your-Own Company pursuant to 44 CFR 62.23.
§ 206.252 Insurance requirements for
facilities damaged by flood.
(a) Where an insurable building damaged by flooding is located in a special
flood hazard area identified for more
than one year by the Director, assistance pursuant to section 406 of the
Stafford Act shall be reduced. The
amount of the reduction shall be the
maximum amount of the insurance

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