40124 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 

ACTION: Notice of intent to delete the 

Delilah Road Landfill Superfund Site 

from the National Priorities List. 

SUMMARY: The Environmental Protection 

Agency (EPA) Region 2 is issuing a 

Notice of Intent to Delete the Delilah 

Road Landfill Superfund Site (Site) 

located in Egg Harbor Township, New 

Jersey, from the National Priorities List 

(NPL) and requests public comments on 

this proposed action. The NPL, 

promulgated pursuant to section 105 of 

the Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) of 1980, as amended, is 

an appendix of the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (NCP). The EPA and 

the State of New Jersey, through the 

New Jersey Department of 

Environmental Protection, have 

determined that all appropriate 

response actions under CERCLA, have 

been completed. However, this deletion 

does not preclude future actions under 

Superfund. 

DATES: Comments must be received by 

September 10, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID no. EPA–HQ– 

SFUND–2005–0011, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

on-line instructions for submitting 

comments. 

• E-mail: loney.natalie@epa.gov. 

• Fax: [Enter fax number]. 

• Mail: Natalie Loney, Community 

Involvement Coordinator, U.S. 

Environmental Protection Agency, 290 

Broadway, 26th Floor, New York, New 

York 10007–1866. 

• Hand delivery: U.S. Environmental 

Protection Agency Records Center, 

Region 2, 290 Broadway, 18th Floor, 

New York, New York 10007–1866. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID no. EPA–HQ–SFUND–2005– 

0011. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket 

All documents in the docket are listed 

in the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statue. Certain 

other material, such as copyrighted 

material, will be publicly available only 

in the hard copy. Publicly available 

docket materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at: 

United States Environmental Protection 

Agency Region 2 Records Center, 290 

Broadway, 18th Floor, New York, NY 

10007–1866, Building hours are 

Monday to Friday 9 a.m.—5 p.m., 

Telephone number is (212) 637–4308; 

or 

The Atlantic County Library, Egg Harbor 

Township Branch, 1 Swift Avenue, 

Egg Harbor Township, New Jersey 

08234, Building hours are Monday to 

Thursday 9 a.m. to 8 p.m., Friday and 

Saturday 9 a.m. to p.m., Telephone 

number is (609) 927–8664. 

FOR FURTHER INFORMATION CONTACT: 

Tanya Mitchell, Remedial Project 

Manager, U.S. Environmental Protection 

Agency, Region 2, 290 Broadway, 19th 

Floor, New York, New York 10007– 

1866, (212) 637–4362, e-mail: 

mitchell.tanya@epa.gov. 

SUPPLEMENTARY INFORMATION: 

In the ‘‘Rules and Regulations’’ 

Section of today’s Federal Register, we 

are publishing a direct final Notice of 

Deletion of Delilah Road Landfill 

Superfund Site without prior Notice of 

Intent to Delete because we view this as 

a noncontroversial revision and 

anticipate no adverse comment. We 

have explained our reasons for this 

deletion in the preamble to the direct 

final Notice of Deletion, and those 

reasons are incorporated herein. If we 

receive no adverse comment(s) on this 

deletion action, we will not take further 

action on this Notice of Intent to Delete. 

If we receive significant adverse 

comment(s), we will withdraw the 

direct final Notice of Deletion, and it 

will not take effect. We will, as 

appropriate, address all public 

comments in a subsequent final Notice 

of Deletion based on this Notice of 

Intent to Delete. We will not institute a 

second comment period on this Notice 

of Intent to Delete. Any parties 

interested in commenting must do so at 

this time. 

For additional information, see the 

direct final Notice of Deletion which is 

located in the Rules section of this 

Federal Register. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 

3 CFR, 1987 Comp., p. 193. 

Dated: July 27, 2009. 

George Pavlou, 

Acting Regional Administrator, Region II. 

[FR Doc. E9–19065 Filed 8–10–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 206 

[Docket ID FEMA–2008–0006] 

RIN 1660–AA47 

Disaster Assistance; Public Assistance 

Repetitive Damage 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: This proposed rule 

implements aspects of the Disaster 

Mitigation Act of 2000 by reducing the 

Federal cost share of FEMA Public 

Assistance to public and certain private 

nonprofit facilities repetitively damaged 

in the preceding 10 years by the same 

type of event and for which required 

hazard mitigation has not been 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 40125 

1 Disaster Relief Act of 1974, Public Law 93–288, 

88 Stat. 143 (May 22, 1974), as amended 42 U.S.C. 

5121 et seq. 

implemented. The Federal government 

should not repetitively reimburse 

eligible applicants for damage that 

could be prevented through mitigation 

efforts. The reduced Federal cost share 

of the proposed rule is intended to 

provide an incentive to mitigate 

repetitive damage, promote measures 

that reduce future loss to life and 

property, protect Federal investment in 

public infrastructure, and help build 

disaster-resistant communities. 

DATES: Submit comments on or before 

October 13, 2009. 

ADDRESSES: You may submit comments, 

identified by Docket ID FEMA–2008– 

0006, by one of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: FEMA–RULES@dhs.gov. 

Include Docket ID FEMA–2008–0006 in 

the subject line of the message. 

Fax: 703–483–2999. 

Mail/Hand Delivery/Courier: Rules 

Docket Clerk, Office of Chief Counsel, 

Federal Emergency Management 

Agency, Room 835, 500 C Street, SW., 

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 

eRulemaking 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 

on the Privacy and Use Notice link on 

the Administration Navigation Bar of 

http://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 and search for 

Federal Emergency Management Agency 

docket ID ‘‘FEMA–2008–0006.’’ 

Submitted comments may also be 

inspected at FEMA, Office of Chief 

Counsel, Room 835, 500 C Street, SW., 

Washington, DC 20472–3100. 

FOR FURTHER INFORMATION CONTACT: Tod 

Wells, Acting Director, Public 

Assistance Division, Federal Emergency 

Management Agency, 500 C Street, SW., 

Room 414, Washington, DC 20472– 

3100, (phone) 202–646–3936; (facsimile) 

202–646–3304; or (e-mail) 

Tod.Wells@dhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Each year, disasters strike the United 

States, including natural events such as 

hurricanes, tornadoes, storms, 

earthquakes, volcanic eruptions, 

landslides, snowstorms, and droughts 

and events that occur from various other 

causes such as fires, floods, and 

explosions. When a disaster occurs and 

a locality has responded to the best of 

its ability and is, or will be, 

overwhelmed by the magnitude of the 

damage, the community turns to the 

State for help. If it is evident that the 

situation is or will be beyond the 

combined capabilities of the local and 

State resources, the Governor may 

request that the President declare that 

an emergency or major disaster exists in 

the State, under the authority of the 

Robert T. Stafford Disaster Relief and 

Emergency Assistance Act 1 (Stafford 

Act). 

If an emergency or major disaster is 

declared, the Federal Emergency 

Management Agency (FEMA) may 

award Public Assistance grants to assist 

State, Tribal, and local governments and 

certain private nonprofit entities 

(applicants), as defined in subpart H of 

44 CFR part 206, with the response to 

and recovery from disasters. 

Specifically, the Public Assistance 

Program provides assistance for debris 

removal, emergency protective measures 

and permanent restoration of 

infrastructure. To obtain these Public 

Assistance grants for damaged facilities, 

the applicants must identify disasterrelated damage which is documented on 

a Project Worksheet (PW), referenced at 

44 CFR 206.201(i). 

The PW is the basis for Public 

Assistance grants and FEMA uses the 

PW to document eligible costs. Federal 

funding is subject to the cost share 

provisions established in the Stafford 

Act (42 U.S.C. 5172(b)), and FEMA-State 

Agreement (44 CFR 206.47(a)). 

Typically, the Federal cost share is 75 

percent of the eligible costs identified 

on the PW. 

In 2000, the President signed into law 

the Disaster Mitigation Act of 2000 

(DMA 2000), Public Law 106–390, 42 

U.S.C. 5121 note. Subsection 205(b) of 

DMA 2000 amended section 406 of the 

Stafford Act by adding a new paragraph 

(b)(2) (42 U.S.C. 5172(b)(2)) which 

states: 

The President shall promulgate regulations 

to reduce the Federal share of assistance 

under this section to not less than 25 percent 

in the case of the repair, restoration, 

reconstruction, or replacement of any eligible 

public facility or private nonprofit facility 

following an event associated with a major 

disaster—(A) that has been damaged, on 

more than one occasion within the 

preceding10-year period, by the same type of 

event; and (B) the owner of which has failed 

to implement appropriate mitigation 

measures to address the hazard that caused 

the damage to the facility. 

This cost share reduction adds to 

existing hazard mitigation authorities 

under sections 203, 404, and 406 of the 

Stafford Act. 

II. Discussion of the Proposed Rule 

In accordance with the amendment to 

section 406 of the Stafford Act, this 

proposed rule would reduce the Federal 

cost share to 25 percent of eligible costs 

if the applicant has not taken 

appropriate mitigation measures on a 

repetitively damaged facility. FEMA 

identified a number of key issues in 

drafting this proposed rule. These 

include: (A) Defining a ‘‘facility’’ as it 

relates to the new statutory provision; 

(B) determining when the requirements 

of the new provision will become 

effective; (C) determining what qualifies 

as ‘‘more than one occasion;’’ (D) 

defining the ‘‘same type of event;’’ (E) 

determining the amount of the cost 

share reduction; (F) defining an 

‘‘appropriate mitigation measure;’’ and 

the process for identifying such 

mitigation measures; and (G) 

establishing a system to identify 

repetitively damaged facilities. FEMA 

discusses each of these issues 

individually below. FEMA invites 

comment on each of these issues as well 

as any other issues the public may find 

relevant. 

A. Definition of ‘‘Facility’’ 

FEMA proposes to use the existing 

definition of a ‘‘facility’’ in 44 CFR 

206.201(c). The existing definition 

states: ‘‘Facility means any publicly or 

privately owned building, works, 

system, or equipment, built or 

manufactured, or an improved and 

maintained natural feature. Land used 

for agricultural purposes is not a 

facility.’’ Using the existing definition of 

‘‘facility’’ in 44 CFR 206.201(c) will 

eliminate any potential confusion 

caused by a separate definition for the 

application of this rule and ensure 

programmatic consistency. 

B. When Will the Requirements Become 

Effective? 

FEMA would begin the process of 

counting events for eligible damaged 

facilities only after it issues an effective 

rule. While one might argue that FEMA 

should have begun tracking such events 

upon the enactment of the DMA 2000, 

FEMA proposes not to begin that 

process until it issues an effective rule, 

in order to give applicants ample time 

to implement appropriate mitigation 


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measures. FEMA believes this process is 

further justified because this proposed 

rule is still subject to change based upon 

public comments received. 

C. Definition of ‘‘More Than One 

Occasion’’ 

FEMA would reduce the Federal cost 

share upon the third occurrence of 

damage to an eligible facility. In drafting 

the proposed rule, FEMA contemplated 

reducing the Federal cost share upon 

the second damaging event. However, 

the Stafford Act states that the reduction 

in benefits can only occur to a facility 

‘‘that has been damaged, on more than 

one occasion.’’ A facility that is 

damaged on ‘‘more than one occasion’’ 

has suffered damage at least twice. 

Therefore, the benefit reduction would 

have to occur on or after the third 

occasion. Consistent with the statutory 

language, FEMA would reduce Federal 

assistance upon the third occurrence of 

the ‘‘same type of event.’’ 

D. Definition of ‘‘Same Type of Event’’ 

Another issue that FEMA addressed is 

the definition of the ‘‘same type of 

event’’ that will trigger the cost share 

reduction mandates. FEMA considered 

how precisely the term ‘‘event’’ should 

be defined. The proposed rule defines 

‘‘same type of event’’ as one that is the 

same major disaster type (e.g., 

hurricane, tornado, flood, or 

earthquake). FEMA documents the 

major disaster type on every PW. By 

defining ‘‘same type of event’’ by major 

disaster type, FEMA can easily track 

and ensure consistent application of the 

proposed rule. For example, if a facility 

was damaged by a hurricane three times 

in a 10-year period, the facility would 

be considered a repetitively damaged 

facility. However, to trigger the cost 

share reduction under this rule, the 

applicant must have been required, and 

failed to take, ‘‘appropriate mitigation 

measures,’’ which are discussed below. 

‘‘Appropriate mitigation measures’’ 

would address the type of damage that 

the facility sustained. 

The new cost share reduction 

provision of the Stafford Act does not 

contain a damage threshold amount 

below which this provision does not 

apply. However, in situations where 

eligible facilities sustain less than 

$1,000 in damages during a major 

disaster, the damage is not eligible for 

FEMA assistance. See 44 CFR 

206.202(d)(2). Therefore, FEMA would 

not consider the event that resulted in 

damage in an amount less than $1,000 

as an ‘‘event’’ for the purposes of 

implementation of the new statutory 

provision. Similarly, under the 

proposed rule if an eligible applicant 

elects to pay 100 percent of the costs to 

repair a particular facility and those 

costs would otherwise have been 

eligible for FEMA assistance, FEMA 

would not count the disaster as an 

‘‘event’’ with regard to that particular 

facility. 

E. Determining Amount of Cost Share 

Reduction 

This proposed rule also describes how 

FEMA proposes to calculate the cost 

share reduction. FEMA must define how 

it will ‘‘reduce the Federal share of 

assistance under this section to not less 

than 25 percent’’ of eligible costs for 

facilities that have been damaged 

repetitively and whose owners have not 

implemented appropriate hazard 

mitigation measures. Rather than 

imposing a cost share reduction on a 

gradual basis, the proposed rule 

imposes a cost share reduction to 25 

percent of eligible costs immediately 

upon the occurrence of the third event. 

FEMA drafted the proposed rule to 

effect a direct reduction in cost share 

from no less than 75 percent to 25 

percent; i.e., FEMA would not make any 

variable cost share between 75 and 25 

percent. FEMA reasoned that this is 

consistent with the Congressional desire 

that this type of concern be addressed 

aggressively and independent of 

FEMA’s other hazard mitigation 

authorities. FEMA concluded that a 

‘‘sliding’’ scale would subject FEMA to 

routine cost share negotiations and 

appeals whenever a facility met the 

repetitive loss criteria, and that the 

development of lengthy criteria to detail 

exactly how and when the sliding 

reduction would occur, as well as a 

resulting complex rule that would be 

difficult to implement consistently, 

would place undue administrative 

burdens on disaster assistance 

applicants and on FEMA. FEMA also 

considered a stepped cost share 

reduction, e.g., 75 percent ➾50 percent 

➾25 percent, but concluded that this 

option would not result in mitigation 

against future losses as quickly as going 

directly to a 25 percent reduction 

immediately upon the third event. 

FEMA notes that Congress set 25 

percent as the most stringent reduction 

and thus FEMA concludes that going 

directly to that percentage reduction is 

the most effective means to meet the 

objective of the statute, absent use of a 

sliding scale or stepped cost share 

reduction. Therefore, this proposed rule 

implements the 25 percent reduction 

immediately upon the third event. 

F. Definition of Appropriate Mitigation 

Measures 

In drafting this proposed rule, FEMA 

also considered the definition of the 

statutory language ‘‘appropriate 

mitigation measures’’ for the purpose of 

implementing the amendment to section 

406 of the Stafford Act, (42 U.S.C. 

5172(b)(2)). Sections 203, 322, 404, and 

406 of the Stafford Act and their 

implementing regulations such as 44 

CFR 201.2, 206.2, 206.111, 206.117, and 

206.431 currently reference ‘‘hazard 

mitigation measures,’’ ‘‘eligible hazard 

mitigation measures,’’ ‘‘hazard 

mitigation measures that are cost 

effective,’’ and ‘‘hazard mitigation 

criteria required by the President.’’ 

However, the new provision of the 

Stafford Act, 42 U.S.C. 5172(b)(2), 

contains the first reference within the 

Stafford Act to ‘‘appropriate mitigation 

measures’’ and there is no legislative 

history that clarifies the meaning of this 

new statutory language. 

In the proposed rule FEMA has 

defined ‘‘appropriate mitigation 

measures’’ using the same definition as 

‘‘hazard mitigation’’ which is defined in 

44 CFR 206.2(a)(14). Section 

206.2(a)(14) defines ‘‘hazard mitigation’’ 

as: ‘‘Any cost effective measure which 

will reduce the potential for damage to 

a facility from a disaster event.’’ FEMA’s 

policy to determine cost-effectiveness 

under the Public Assistance program 

includes mitigation measures that 

amount up to 15 percent of the total 

eligible cost of the eligible repair work 

on a particular project, certain 

mitigation measures that FEMA has predetermined cost-effective, and an 

acceptable benefit/cost analysis 

methodology. See FEMA Public 

Assistance Guide FEMA 322 (June 

2007), Disaster Assistance Policy 

9526.1, ‘‘Hazard Mitigation Funding 

Under Section 406 (Stafford Act)’’ 

(available at: http://www.fema.gov/ 

government/grant/pa/9526_1.shtm). The 

eligibility of hazard mitigation for 

Public Assistance applicants is further 

addressed in 44 CFR 206.226. In 

approving grant assistance for 

restoration of facilities, FEMA may 

require cost effective hazard mitigation 

measures not required by applicable 

standards pursuant to 44 CFR 

206.226(e). Defining ‘‘appropriate 

mitigation measures’’ with the same 

criteria as ‘‘hazard mitigation’’ ensures a 

more consistent evaluation for 

determining required mitigation. 

The applicant would have to perform 

the appropriate mitigation measure on 

the damaged component of the facility. 

The appropriate mitigation should be 

for the type of damage sustained (wind, 


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Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 40127 

water, etc.). For example, if a roof was 

damaged by wind, FEMA may require 

mitigation against wind damage to the 

roof rather than requiring mitigation 

against fire or water damage to the roof. 

FEMA examined several options for 

determining appropriate mitigation 

measures for a facility. FEMA 

considered linking an ‘‘appropriate 

mitigation measure’’ to compliance with 

current, local building codes applicable 

to certain hazards, such as earthquakes. 

However, such a definition would not 

be adequate for all hazards, such as 

floods, affecting all disaster-prone 

communities in the United States. 

FEMA also considered defining 

‘‘appropriate mitigation measures’’ in 

terms of probabilities, e.g., measures 

designed to reduce the likelihood of 

damage from the flood event with a 1- 

percent annual chance of occurrence. 

However, one general probabilisticbased design may not work for all 

hazard scenarios. FEMA deemed this 

approach problematic for a number of 

reasons. First, these probabilistic design 

standards may have conflicted with 

local codes and design standards. 

Second, in some cases these 

probabilistic-based designs may have 

exacerbated the hazard that they were 

intended to mitigate. For example, 

culverts for storm drainage which 

handle intermittent flows are, in most 

cases, designed to handle significantly 

less than the 1-percent annual chance of 

a storm event; sizing them to handle the 

1-percent flood flow would tend to 

increase downstream flood flows and 

increase costs and environmental 

impacts. Third, a probabilistic-based 

design standard for ‘‘appropriate 

mitigation measures’’ could result in 

inconsistencies with the State, Local 

and Indian Tribal Mitigation Plans 

required by section 322 of the Stafford 

Act, as well as inconsistencies in 

application because such a probabilistic 

design would require FEMA to approve 

the mitigation measures on a case-bycase basis. 

Under section 322 of the Stafford Act 

and 44 CFR 201.4 and 201.7, a State or 

Indian Tribal government acting as a 

Grantee must have, at a minimum, a 

FEMA approved Standard State or 

Tribal Mitigation Plan in effect to 

receive certain types of non-emergency 

assistance under the Stafford Act. Under 

section 322 of the Stafford Act and 44 

CFR 201.4, a local or Indian Tribal 

government must have an approved 

local or Indian Tribal plan in effect to 

receive assistance under the Hazard 

Mitigation Grant Program (HMGP). 

Since FEMA believes that it is important 

for its hazard mitigation programs to 

complement one another, FEMA 

proposes to require that any appropriate 

mitigation measure for an eligible 

facility be consistent with the State 

Mitigation Plan or Tribal Mitigation 

Plan, if the Indian Tribal government is 

the Grantee, as described at 44 CFR 

201.4 through 44 CFR 201.6. 

State Mitigation Plans provide general 

mitigation planning guidelines for 

mitigation measures throughout the 

State, while Local and/or Indian Tribal 

Mitigation Plans provide more specific 

criterion for appropriate mitigation 

measures for a facility. FEMA was 

concerned that, in the absence of a Local 

and/or Indian Tribal Mitigation Plan for 

a designated area, the State Mitigation 

Plan would not provide sufficient 

guidance regarding appropriate 

mitigation measures for a facility. FEMA 

considered requiring revision to, or 

creation of, a Local and/or Indian Tribal 

Mitigation Plan should a specific 

appropriate mitigation measure not be 

specified for a facility; however, the 

time required to do so could cause 

unacceptable delays in providing 

appropriate mitigation to the facility. 

Further, State Mitigation Plans as 

described under 44 CFR 201.4 already 

require the State to coordinate 

mitigation measures with Local or 

Tribal Mitigation Plans, where they 

exist. 

G. Identifying Repetitively Damaged 

Facilities 

To implement the proposed 

requirements in this rulemaking, FEMA 

needs to collect repetitive loss 

information. FEMA would track the 

history of the provision of disaster 

assistance following Presidentiallydeclared major disasters by applicant 

and facility through the use of its 

National Emergency Management 

Information System (NEMIS)/ 

Emergency Management Mission 

Integrated Environment (EMMIE) 

computer program and database in 

which all PW’s are stored. FEMA would 

use the latitude and longitude 

documented on the PW and entered into 

NEMIS/EMMIE for the damaged facility 

to track repetitively damaged facilities. 

Tracking and recording this information 

in NEMIS/EMMIE would assist FEMA 

in correctly and consistently 

interpreting the requirements in this 

proposed rule, and if the Federal cost 

share is reduced it would serve as 

essential documentation for resolving 

appeals that may follow. 

III. Regulatory Analysis 

A. National Environmental Policy Act 

(NEPA) 

The National Environmental Policy 

Act of 1969 (NEPA), Public Law 91–190, 

83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 

4321 et seq.), as amended, requires that 

agencies consider environmental 

impacts in their decision-making. 

Specifically, NEPA requires agencies to 

prepare an Environmental Impact 

Statement (EIS) for ‘‘major federal 

actions significantly affecting the 

quality of the human environment.’’ If 

an action may or may not have a 

significant impact, the agency must 

prepare an Environmental Assessment 

(EA). If, as a result of this study, the 

agency makes a Finding of No 

Significant Impact (FONSI), no further 

action is necessary. If the action will 

have a significant effect, the agency uses 

the EA to develop an EIS. 

Pursuant to 44 CFR 10.8(c)(2), action 

taken or assistance provided under 

sections 402, 403, 407, or 502 of the 

Stafford Act and action taken or 

assistance provided under section 406 

of the Stafford Act that has the effect of 

restoring facilities substantially as they 

existed before a major disaster or 

emergency are statutorily excluded from 

NEPA and the preparation of 

environmental impact statements and 

environmental assessments by section 

316 of the Robert T. Stafford Disaster 

Relief and Emergency Assistance Act 

(Stafford Act), as amended, 42 U.S.C. 

5159. Also, 44 CFR 10.8(d)(2)(xix) 

excludes hazard mitigation activities 

under the Stafford Act, and 44 CFR 

10.8(d)(2)(ii) excludes the preparation, 

revision and adoption of regulations 

from the preparation of an EA or EIS 

where the rule relates to actions that 

qualify for categorical exclusions, FEMA 

has determined that this proposed rule 

is categorically excluded from the 

preparation of an EA or an EIS. Further, 

the changes proposed by this rule are 

administrative changes to the Public 

Assistance program that would have no 

effect on the environment. See 44 CFR 

10.8(d)(1). 

B. Paperwork Reduction Act of 1995 

As required by the Paperwork 

Reduction Act of 1995 (PRA) Public 

Law 104–33 (44 U.S.C. 3501 et seq.), as 

amended, an agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless the collection of information 

displays a valid control number. This 

rulemaking involves the reduction in 

Federal assistance for public or private 

nonprofit facilities repetitively damaged 

by the same type of disaster when the 


srobinson on DSKHWCL6B1PROD with PROPOSALS
40128 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 

2 Data were adjusted for inflation based on 

Consumer Price Index (CPI) published by the 

Bureau of Labor Statistics (BLS). 

owner has failed to take appropriate 

mitigation measures. To identify 

repetitively damaged facilities, FEMA 

must be able to track damaged facilities. 

In order to accurately record damaged 

facilities and, therefore, track 

repetitively damaged facilities, FEMA 

would use the latitude and longitude for 

the damaged facility. FEMA already 

collects the latitude and longitude of 

facilities on the PW and enters the 

latitude and longitude into NEMIS/ 

EMMIE. The PW instructions currently 

require the latitude and longitude for all 

damaged facilities. The PW instructions 

fall under OMB Collection No. 1660– 

0017 ‘‘Project Worksheets and 

Continuation Forms’’ which expires 

December 31, 2011. There would be no 

additional burden to the approved 

collection as a result of the changes 

proposed in this rule. 

C. Executive Order 12866, Regulatory 

Planning and Review 

FEMA has prepared and reviewed this 

rule under the provisions of Executive 

Order 12866, Regulatory Planning and 

Review. Under Executive Order 12866, 

a significant regulatory action is subject 

to Office of Management and Budget 

(OMB) review and the requirements of 

the Executive Order. The Executive 

Order defines ‘‘significant regulatory 

action’’ as one that is likely to result in 

a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

This proposed rule does not meet the 

criteria under paragraph 2, 3, or 4 of the 

provision of the Executive Order. In 

addition, FEMA determined that it is 

not likely to have a significant economic 

impact of $100 million or more per year 

(under paragraph 1 of this provision). 

This proposed rule has not been 

reviewed by OMB. 

As authorized by DMA 2000, this 

proposed rule would reduce the Federal 

cost share to 25 percent for eligible 

Public Assistance cost to repair, restore, 

reconstruct or replace an eligible public 

facility or private nonprofit facility that 

has been damaged twice within the 

preceding 10 years by the same type of 

event and the owner of the facility has 

not implemented appropriate mitigation 

measures before the third event of the 

same type. The proposed rule would not 

affect the Public Assistance eligibility 

requirements. Further, the proposed 

rule would only affect public facilities 

and eligible private nonprofit facilities. 

It would not affect grants made under 

the Individual Assistance program. 

The statutory mandate imposed upon 

FEMA required the agency to reduce the 

Federal share to ‘‘not less than 25 

percent’’ of eligible costs, and did not 

specifically mandate that FEMA 

establish the 25 percent rate chosen in 

this rule. Rather than imposing a cost 

share reduction on a gradual basis, the 

proposed rule imposes a cost share 

reduction to 25 percent of eligible costs 

immediately upon the occurrence of the 

third event. Developing objective 

criteria for an incremental cost share 

reduction from 75 percent to 25 percent 

(perhaps with a median reduction at 50 

percent) would likely result in a 

complex rule that FEMA could not 

implement consistently without placing 

additional administrative burdens on 

disaster assistance applicants, as well as 

an undue burden on FEMA to develop 

and administer such a rule. Therefore, 

this proposed rule would implement the 

full 25 percent reduction immediately 

upon the third event. 

FEMA cannot predict with certainty 

the future number of major disasters 

that will affect the nation in a given year 

or the number of facilities that will be 

repetitively damaged from those 

disasters. However, between January 1, 

1998, and January 1, 2008, there was an 

average of 54 major disaster declarations 

made per year. Out of the approximately 

88,060 Public Assistance applicants in 

the past 10 years, FEMA identified 

1,756 of those applicants that suffered 

similar damage within the same damage 

category at least twice in that time 

period. These applicants would have, if 

this proposed rule had been in effect, 

undertaken mitigation efforts or risk a 

reduced cost share percentage should a 

disaster of the same type damage their 

facility a third time within 10 years of 

the first of those two disasters. This 

figure only amounts to 2 percent of all 

Public Assistance applicants. The total 

eligible cost for these 1,756 Public 

Assistance applicants was $1.32 billion 

(in 2008 dollars) 2 over the past 10 years, 

which amounts to approximately $132 

million per year. 

Under section 406 of the Stafford Act, 

42 U.S.C. 5172(b)(1), the Federal share 

could not be less than 75 percent of 

eligible costs. Under the terms of this 

proposed rule which would implement 

the new paragraph 42 U.S.C. 5172(b)(2), 

if applicants failed to implement 

appropriate mitigation measures for 

these repetitively damaged facilities, the 

percentage of the Federal share would 

be reduced to 25 percent. Taking a 

conservative estimate and assuming that 

all 1,756 applicants failed to implement 

appropriate mitigation measures, the 

cost implication would be as follows: 75 

percent of the eligible costs of $132 

million is $99 million and 25 percent of 

$132 million is $33 million, so the 

potential reduction in Federal assistance 

would be approximately $66 million 

annually based on an analysis of the 

period January 1, 1998 through January 

1, 2008. 

Under the proposed rule, to be 

eligible for the full Federal cost share an 

applicant must implement required 

hazard mitigation measures prior to the 

third event of the same type. The 

required hazard mitigation will vary 

from facility to facility. However, 

typical mitigation measures include, but 

are not limited to, the relocation out of 

hazardous locations, slope stabilization, 

protection from high winds (shutters, 

hurricane clips, anchors), flood proofing 

of buildings (elevation, use of floodresistant materials), flood protection of 

bridges and culverts (use clear spans 

instead of multiple spans, riprap), 

protecting against seismic changes 

(bracing, anchoring), and the protection 

of utilities (anchoring, use of disasterresistant materials, elevation). In 

general, appropriate mitigation 

measures should be cost-effective. 

The cost to mitigate these facilities 

may be eligible for the HMGP, so States, 

local and/or Tribal governments and 

some private nonprofit entities may be 

able to seek Federal funds to offset the 

cost of mitigation efforts. Although this 

proposed regulation would not affect 

the HMGP, additional information 

regarding the program may be found in 

FEMA’s regulations in 44 CFR parts 78, 

201, and 206 and at http:// 

www.fema.gov/government/grant/hmgp/ 

index.shtm. 

This proposed rule could potentially 

have an impact of approximately $66 

million per year. As a benefit, this 

reduced Federal cost share would 

provide an incentive to mitigate 

repetitive damage. Mitigation focuses on 

breaking the cycle of disaster damage, 

reconstruction, and repeated damage. 

Mitigation efforts provide value to the 


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Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 40129 

American people by creating safer 

communities and reducing loss of life 

and property, enabling communities to 

recover more rapidly from disasters, and 

lessening the financial impact of 

disasters on individuals, the Treasury, 

State, local and Tribal communities. 

D. Executive Order 13132, Federalism 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 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. 

FEMA has reviewed the proposed rule 

under Executive Order 13132 and has 

concluded that the proposed rule, 

which implements statutory 

requirements, does not have federalism 

implications as defined by Executive 

Order 13132. FEMA has determined that 

the rule does not significantly affect the 

rights, roles, and responsibilities of 

States, and involves no preemption of 

State law nor does it limit State 

policymaking discretion. This 

rulemaking amends a voluntary grant 

program that may be used by State, local 

and Tribal governments and eligible 

private nonprofit organizations to 

receive Federal grants to assist in the 

recovery from disasters. States are not 

required to seek grant funding, and this 

rulemaking does not limit their 

policymaking discretion. In addition, 

FEMA actively encourages and solicits 

comments on this proposed rule from 

interested parties. 

E. Executive Order 12898, 

Environmental Justice 

Under Executive Order 12898, as 

amended ‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’ (59 FR 7629, Feb. 16, 

1994), FEMA has undertaken to 

incorporate environmental justice into 

its policies and programs. Executive 

Order 12898 requires each Federal 

agency to conduct its programs, 

policies, and activities that substantially 

affect human health or the environment, 

in a manner that ensures that those 

programs, policies, and activities do not 

have the effect of excluding persons 

from participation in, denying persons 

the benefit of, or subjecting persons to 

discrimination because of their race, 

color, or national origin or income level. 

The purpose of this rule is to reduce 

the Federal cost share for repetitively 

damaged facilities where the owner of 

the facility has not implemented 

appropriate mitigation measures. This 

reduced Federal cost share would 

provide an incentive to mitigate future 

damage. Mitigation focuses on breaking 

the cycle of repeated disaster damage. 

Mitigation efforts provide value to the 

American people by creating safer 

communities and reducing loss of life 

and property, enables communities to 

recover more rapidly from disasters, and 

lessens the financial impact of disasters 

on individuals, the United States 

Department of the Treasury, State, local 

and Tribal communities. 

No action that FEMA can anticipate 

under the proposed rule will have a 

disproportionately high and adverse 

human health or environmental effect 

on any segment of the population. In 

accordance with Congressional 

mandates, the proposed rule 

implements the Federal cost share 

reduction for repetitively damaged 

facilities. Accordingly, the requirements 

of Executive Order 12898 do not apply 

to this proposed rule. 

F. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

FEMA has reviewed this proposed 

rule under Executive Order 13175 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, Nov. 9, 2000). Under Executive 

Order 13175, FEMA may not issue a 

regulation that has tribal implications, 

that imposes substantial direct 

compliance costs on Indian Tribal 

governments, and that is not required by 

statute. In reviewing the proposed rule, 

FEMA finds that because Indian Tribal 

governments are potentially eligible 

applicants under the Public Assistance 

program, the proposed rule does have 

‘‘tribal implications’’ as defined in the 

Executive Order. The implications of 

the proposed rule, however, will not 

have a substantial direct effect 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. 

The proposed rule does not impose 

substantial direct compliance costs on 

Indian Tribal governments nor does it 

preempt tribal law, impair treaty rights 

nor limit the self-governing powers of 

Indian Tribal governments. 

Furthermore, this regulatory change is 

required by statute. This proposed 

regulation would implement an 

amendment to 42 U.S.C. 5172(b), which 

mandates a reduction in the percentage 

of Federal funding provided after a 

public or private nonprofit facility has 

been damaged more than once within 

the preceding 10 years by the same type 

of event and the owner of the facility 

has not implemented appropriate 

mitigation measures before the third 

event of the same type. 

G. Regulatory Flexibility Act Statement 

Under the Regulatory Flexibility Act 

(RFA) (5 U.S.C. 601–612) and section 

213(a) of the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121, 110 Stat. 847, 858–9 (March 

29, 1996) (5 U.S.C. 601 note)), agencies 

must consider the impact of their 

rulemakings on ‘‘small entities’’ (small 

businesses, small organizations and 

local governments). The RFA applies to 

any proposed rulemaking subject to 

notice and comment under section 553 

of the Administrative Procedure Act 

(APA) (5 U.S.C. 553). The RFA requires 

Federal agencies to consider the 

potential impact of regulations on small 

businesses, small governmental 

jurisdictions, and small organizations 

during the development of their rules. 

FEMA used 2000 U.S. Census Bureau 

data to identify actual Public Assistance 

applicants that under the RFA could be 

considered small entities. FEMA 

identified 920 Public Assistance 

applicants with populations of 50,000 or 

less that suffered similar damage within 

the same damage category twice over 

the past 10 years. Therefore, these 920 

Public Assistance applicants could be 

considered small entities under the RFA 

and could potentially meet the 

definition of repetitively damaged 

facilities if their facility is damaged a 

third time within that 10-year period. 

Out of the 920 Public Assistance 

applicants that are considered small 

entities, 914 are small governmental 

jurisdictions and 6 are private nonprofit 

(PNP) organizations. These 920 small 

entities amount to approximately 52 

percent of the total 1,756 applicants that 

suffered similar damage at least twice 

over the past 10 years. 

Assuming that all 920 Public 

Assistance applicants failed to 

implement required hazard mitigation 

and suffered damage a third time, so 

that they meet the definition of a 

repetitively damaged facility, this would 

only amount to one percent of all Public 

Assistance applicants. The total eligible 

cost was $429.32 million (in 2008 


srobinson on DSKHWCL6B1PROD with PROPOSALS
40130 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 

3 Data were adjusted for inflation based on the 

Consumer Price Index (CPI) published by the 

Bureau of Labor Statistics (BLS). 

4The 6 PNP organizations were not included as 

their annual revenues cannot be estimated. 

5U.S. Census Bureau (2009), State and Local 

Government Finance, http://ftp2.census.gov/govs/ 

estimate/06slsstab1a.xls. 

dollars) 3 for these 920 applicants over 

the past 10 years. This equals an annual 

average of approximately $42.93 

million. 

Under the terms of this proposed rule, 

if applicants failed to implement 

required hazard mitigation for these 

repetitively damaged facilities, FEMA 

would reduce the percentage of the 

Federal cost share to 25 percent. Under 

section 406 of the Stafford Act, 42 

U.S.C. 5172(b)(1), the Federal share 

could not be less than 75 percent of 

eligible costs. Since 75 percent of $42.93 

million is $32.20 million and 25 percent 

of $42.93 million is $10.73 million, the 

potential reduction would be $21.47 

million in Federal assistance each year. 

As a result, the average impact to these 

920 applicants is $23,337 per year 

(= 21,470,000/920). 

FEMA measured the annual impact of 

this rule on each of these 914 small 

governmental jurisdictions 4 based on 

the estimated reduction in Federal 

assistance and annual revenues. Annual 

revenues for these 914 small 

governmental jurisdictions were 

estimated from the per capita revenue 

for local governments by State.5 For 

example, the total revenue for all local 

governments in Alabama in 2005–06 

was $18.41 billion (in 2008 dollars) and 

the population is 4.66 million, resulting 

in the per capita revenue of $3,951. 

Therefore, annual revenue for a small 

governmental jurisdiction in Alabama 

with a population size of 500 is 

estimated approximately at $1.98 

million (= $3,951 × 500). FEMA 

compared the estimated reduction in 

Federal assistance with the estimated 

annual revenue for each of these 914 

small governmental jurisdictions. Out of 

these 914 small governmental 

jurisdictions, only 19 (or 2 percent) are 

expected to have an impact higher than 

1 percent of their annual revenues. 

Consequently, FEMA certifies that there 

is no significant economic impact on a 

substantial number of small entities. 

H. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (UMRA), Public Law 104–4, 109 

Stat. 48 (March 22, 1995) (2 U.S.C. 1501 

et seq.), requires each Federal agency, to 

the extent permitted by law, to prepare 

a written assessment of the effects of 

any Federal mandate in a proposed or 

final agency rule 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. UMRA exempts from its 

definition of ‘‘Federal 

intergovernmental mandate’’ regulations 

that establish conditions of Federal 

assistance or provide for emergency 

assistance or relief at the request of any 

State, local, or Tribal government. 

Therefore, this proposed rule is not an 

unfunded Federal mandate under that 

Act. 

I. 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’’ (61 

FR 4729, Feb. 7, 1996), to minimize 

litigation, eliminate ambiguity, and 

reduce burden. 

J. 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’’ (53 FR 8859, Mar. 18, 1988) as 

supplemented by Executive Order 

13406, ‘‘Protecting the Property Rights 

of the American People’’ (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. 

K. Congressional Review of Agency 

Rulemaking 

FEMA will send this rule to Congress 

and to the Government Accountability 

Office under the Congressional Review 

of Agency Rulemaking Act 

(Congressional Review Act), Public Law 

104–121, 110 Stat. 873 (March 29, 1996) 

(5 U.S.C. 804) before it is effective. This 

proposed rule is not a ‘‘major rule’’ 

within the meaning of the Congressional 

Review Act. This rulemaking would not 

result in a major increase in costs or 

prices for consumers, individual 

industries, Federal, State, or local 

government agencies, or geographic 

regions, nor would it have ‘‘significant 

adverse effects’’ on competition, 

employment, investment, productivity, 

innovation, or on the ability of United 

States-based enterprises to compete 

with foreign-based enterprises. 

List of Subjects in 44 CFR Part 206 

Administrative practice and 

procedure, Coastal zone, Community 

facilities, Disaster assistance, Fire 

prevention, Grant programs—housing 

and community development, Housing, 

Insurance, Intergovernmental relations, 

Loan programs—housing and 

community development, Natural 

resources, Penalties, Reporting and 

recordkeeping requirements. 

For the reasons stated in the 

preamble, the Federal Emergency 

Management Agency proposes to amend 

44 CFR part 206 as follows: 

1. The authority citation of Part 206 

is revised to read as follows: 

Authority: 42 U.S.C. 5121 through 5207; 

Reorganization Plan No. 3 of 1978, 43 FR 

41943, 3 CFR, 1978 Comp., p. 329; 6 U.S.C. 

101; EO 12127, 44 FR 19367, 3 CFR, 1979 

Comp., p. 376; E.O. 12148, 44 FR 43239, 3 

CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 

10619, 3 CFR, 2003 Comp., p. 166. 

In § 206.226, add a new paragraph (l) 

to read as follows: 

§ 206.226 Restoration of damaged 

facilities. 

* * * * * 

(l) Repetitively damaged facilities. A 

repetitively damaged facility is an 

eligible facility that has suffered damage 

from the same type of event for which 

Public Assistance has been approved 

twice within the past 10 years. If 

appropriate mitigation measures, 

required pursuant to paragraph (e) of 

this section, have not been made to the 

facility before a third event of the same 

type, the Federal share of eligible repair 

costs is 25 percent. 

(1) ‘‘Appropriate mitigation 

measures’’ has the same meaning as 

‘‘hazard mitigation’’ which is defined in 

§ 206.2(a)(14). The appropriate 

mitigation measures for the facility must 

be consistent with the mitigation 

strategy identified in the State 

Mitigation Plan described in § 201.4 of 

this chapter, or the Tribal Mitigation 

Plan, if the Indian Tribal government is 

the Grantee as described in § 201.7 of 

this chapter. 

(2) The 25 percent Federal cost share 

will not be applied to a facility that is 

damaged before the deadline to 

complete approved mitigation work in 

accordance with § 206.204(c) and (d). 

(3) ‘‘Same type of event’’ means the 

same major disaster type, including but 

not limited to hurricane, tornado, flood, 

or earthquake. 

(4) Damage to an eligible facility will 

not be counted as a repetitive damage 

‘‘event’’ for that particular facility if the 

eligible applicant elects to pay 100 

percent of the costs to repair the facility, 

or the facility sustains less than $1,000 

in damage from the disaster event. 

(5) Events will be counted toward 

repetitive status after [DATE 30 DAYS 

AFTER DATE OF PUBLICATION OF 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 40131 

THE FINAL RULE IN THE FEDERAL 

REGISTER]. 

Dated: August 4, 2009. 

W. Craig Fugate, 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. E9–19156 Filed 8–10–09; 8:45 am] 

BILLING CODE 9111–23–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 4, 12, 39, and 52 

[FAR Case 2008–019; Docket 2009–0018; 

Sequence 2] 

RIN 9000–AL11 

Federal Acquisition Regulation; FAR 

Case 2008–019, Authentic Information 

Technology Products 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Advanced Notice of Proposed 

Rulemaking; notice of public meeting. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council (the 

Councils) are hosting a public meeting 

to continue a dialogue with industry 

and Government agencies about ways to 

develop greater assurance around 

information technology (IT) products 

acquired by the Government. The public 

meeting will include dialogues on the 

impact of counterfeit IT products on 

matters of performance and security; 

contractor liability and consequential 

damages; the competition aspects of 

procuring IT products from the original 

manufacturer or authorized distributors; 

viable means of representing 

authenticity of IT products; and 

contractor supply chain risk 

management requirements as an 

evaluation factor in the procurement of 

IT products. 

DATES: August 13, 2009, 9 a.m. to 2 p.m. 

EST. 

ADDRESSES: See SUPPLEMENTARY

INFORMATION section for public meeting 

address. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat at (202) 501– 

4755. Please cite FAR case 2008–019. 

SUPPLEMENTARY INFORMATION: 

A. Public Meeting Address 

The meeting will be held at the 

General Services Administration (GSA), 

1800 F Street, NW, Washington, DC 

20405. The meeting will be held in the 

GSA Auditorium. 

Interested parties are encouraged to 

arrive at least 30 minutes early to 

accommodate security procedures. 

If you wish to make a presentation on 

any of the topics, please contact and 

submit a copy of your presentation prior 

to the meeting, to the General Services 

Administration, Contract Policy 

Division (VPC), 1800 F Street, NW, 

Room 4040, Attn: Ernest Woodson, 

Washington, DC 20405. Telephone: 

202–501–3775. 

Submit electronic materials via e-mail 

to ernest.woodson@gsa.gov. Please 

submit presentations only and cite 

Public Meeting IT Products Continued 

Dialogue in all correspondence related 

to the public meeting. The submitted 

presentations will be the only record of 

the public meeting. 

Call-in Information: Parties interested 

in participating by phone may dial (877) 

924–8049, passcode 5363978. Interested 

parties calling in will not be allowed to 

present or participate in the question 

and answer session during a public 

meeting. Phone lines have been reserved 

for the first 100 callers. 

Special Accommodations: The public 

meeting is physically accessible to 

people with disabilities. Request for 

sign language interpretation or other 

auxiliary aids should be directed to 

Ernest Woodson, at 202–501–3775, at 

least 2–working days prior to the 

meeting date. 

B. Background 

On December 11, 2008, the Councils 

conducted a public meeting (see Federal 

Register notice at 73 FR 68373–68375 

on November 18, 2008) to seek 

comments from both Government and 

industry, on among other things, 

whether the Federal Acquisition 

Regulation (FAR) should be revised to 

include a requirement that contractors 

selling IT products (including computer 

hardware and software) represent that 

such products are authentic. The 

Councils were interested in comments 

regarding contractor liability if IT 

products sold to the Government by 

contractor are not authentic, and 

whether contractors who are resellers or 

distributors of computer hardware and 

software should represent to the 

Government that they are authorized by 

the original equipment manufacturer 

(OEM) to sell IT products to the 

Government. The comment period 

closed January 20, 2009. 

While comments received will be 

considered in the preparation of a 

proposed rule, the public meeting 

contemplated by this notice and those 

conducted June 23, July 15 and 22, 2009 

(see Federal Register notice at 74 FR 

26646–26647 on June 3, 2009), will 

continue a dialogue with industry and 

Government agencies on the impact of 

counterfeit IT products on matters of 

performance and security; contractor 

liability and consequential damages; the 

competition aspects of procuring IT 

products from the original or authorized 

distributors; viable means of 

representing authenticity of IT products; 

and contractor supply chain risk 

management requirements as an 

evaluation factor in the procurement of 

IT products. 

The public meeting is intended to 

provide for an exchange of information 

and ideas that may be used to assist in 

developing greater assurance around 

information technology products 

acquired by the Government. While the 

focus of this notice is IT products, 

public meeting comments/presentations 

are invited on (1) whether the measures 

proposed herein should be expanded to 

include other items sold to the 

Government, such as Electrical, 

Electronic, and Electromechanical parts; 

(2) whether the rule should apply when 

IT is a component of a system or 

assembled product; and (3) whether 

vendors, distributors, and 

manufacturers of IT products and other 

items sold to the Government should be 

prequalified based on specific standards 

of testing, quality, traceability, integrity, 

and etc., before they are allowed to sell 

to the Government. 

The Councils are particularly 

interested in hearing how industry 

participants can maintain the integrity 

of the supply chain while providing 

Government customers with a variety of 

cost effective and reliable sources. 

Previous meetings initiated discussion 

of how various trade associations and 

other representative groups could 

propose to police member organizations 

or provide some auditable certification 

or declaration program that provides 

Government customers with uniform, 

reasonable assurance that purchased 

products and subcomponents are not 

counterfeit. 

List of Subjects in 48 CFR Parts 2, 4, 12, 

39, and 52 

Government procurement. 


srobinson on DSKHWCL6B1PROD with PROPOSALS