FR Doc 03-27140

[Federal Register: October 28, 2003 (Volume 68, Number 208)]
[Rules and Regulations]
[Page 61368-61371]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28oc03-18]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Parts 201, 204 and 206

RIN 1660-AA17

Hazard Mitigation Planning and Hazard Mitigation Grant Program

AGENCY: Federal Emergency Management Agency (FEMA), Emergency
Preparedness and Response Directorate, Department of Homeland Security.

ACTION: Interim final rule.

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SUMMARY: This rule clarifies the date that local mitigation plans will
be required as a condition of receiving project grant funds under the
Pre-Disaster Mitigation (PDM) program. In addition, we are taking the
opportunity to correct cross references in our regulations to address
areas of inconsistency regarding the planning requirement in the Fire
Management Assistance Grant Program and Public Assistance Eligibility
that should have been addressed previously.

DATES: Effective Date: October 28, 2003. Comment Date: We will accept
written comments through December 29, 2003.

ADDRESSES: Please send written comments to the Rules Docket Clerk,
Office of the General Counsel, Federal Emergency Management Agency, 500
C Street, SW., Room 840, Washington DC 20472, (facsimile) 202-646-4536, or (email) rules@fema.gov.

FOR FURTHER INFORMATION CONTACT: Karen Helbrecht, Program Planning
Branch, Mitigation Division, Federal Emergency Management Agency, 500 C
Street, SW., Washington DC, 20472, 202-646-3358, (facsimile) 202-646-4127, or (email) karen.helbrecht@dhs.gov.

SUPPLEMENTARY INFORMATION: On February 26, 2002, FEMA published an
interim final rule at 67 FR 8844 implementing section 322 of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act
or the Act), 42 U.S.C. 5165, enacted under section 104 of the Disaster
Mitigation Act of 2000, (DMA 2000) Public Law 106-390. This identified
the

[[Page 61369]]

requirements for State, tribal, and local mitigation plans necessary
for Hazard Mitigation Grant Program (HMGP) project funding. On October
1, 2002, FEMA published a change to that rule at 67 FR 61512, extending
the date that the planning requirements take effect. This rule stated
that for disasters declared on or after November 1, 2004, State
Mitigation Plans will be required in order to receive non-emergency
Stafford Act assistance, and local mitigation plans will be required in
order to receive HMGP project grants.
However, the date that local mitigation plans will be required for
the Pre-Disaster Mitigation program as a condition of project grant
funding was left at November 1, 2003. The intent was to make grants and
technical assistance available in fiscal year 2003 to assist State and
local governments to develop mitigation plans and implement mitigation
projects during the first year of the competitive grant program.
However, because the application period for the competitive PDM program
will not close until October 6, 2003, the project grants will not be
awarded until after November 1, 2003. The intent of this rule change is
to clarify that the November 1, 2003 effective date for the planning
requirement will apply only to PDM grant funds awarded under any Notice
of funding opportunity issued after that date. Essentially, for PDM
grant funds made available in fiscal year 2004 and beyond, local
governments must have an approved mitigation plan in order to receive a
project grant under the PDM program.
In addition, this rule updates the planning requirement identified
in 44 CFR part 204, Fire Management Assistance Grant Program as well as
part 206, subpart H, Public Assistance Eligibility. The changes bring
these sections into conformity with the existing planning rule, 44 CFR
part 201.
FEMA received many thoughtful comments, and intends to address them
all prior to finalizing the rule. However, in the interest of
expediting these minor clarifying and conforming changes, FEMA is
issuing another interim final rule. FEMA encourages comments on this
interim final rule, and will make every effort to involve all
interested parties, including those who commented on the original
interim final planning rules, prior to the development of the Final
Rule.

Administrative Procedure Act Statement.

In general, FEMA publishes a rule for public comment before issuing
a final rule, under the Administrative Procedure Act, 5 U.S.C. 533 and
44 CFR 1.12. The Administrative Procedure Act, however, provides an
exception from that general rule where the agency for good cause finds
the procedures for comment and response contrary to the public
interest.
This interim final rule clarifies the date that local governments,
as well as a tribe applying as a sub-applicant, must have a mitigation
plan as a condition of receiving FEMA PDM project grant assistance.
This interim final rule clarifies that the plan requirement applies
only to PDM project grants awarded under any Notice of funding
opportunity issued after November 1, 2003. The Notice of Availability
of Funding (NOFA) for the fiscal year 2003 PDM program was not
published until July 7, 2003, making it difficult to make grant awards
by November 1, 2003. In order to make timely awards for the fiscal year
2003 PDM program, it is essential that the clarification of the
effective date of the planning requirement be made effective as soon as
possible.
In addition, this rule brings the mitigation planning requirements
for the Fire Management Assistance Grant Program, and FEMA's Public
Assistance Program into conformity with 44 CFR part 201. FEMA believes
it is contrary to the public interest to delay the benefits of this
rule. In accordance with the Administrative Procedure Act, 5 U.S.C.
553(d)(3), we find good cause for the interim final rule to take effect
immediately upon publication in the Federal Register in order to meet
the needs of States, tribes, and communities by clarifying the
effective date for planning requirements under 44 CFR part 201.
Therefore, FEMA finds that prior notice and comment on this rule would
not further the public interest. FEMA actively encourages, solicits,
and will consider comments on this interim final rule from interested
parties, as well as those submitted on the original interim final
planning rule, in preparing the final rule. For these reasons, FEMA
believes there is good cause to publish an interim final rule.

National Environmental Policy Act

44 CFR 10.8(d)(2)(ii) excludes this rule from the preparation of an
environmental assessment or environmental impact statement, where the
rule relates to actions that qualify for categorical exclusion under 44
CFR 10.8(d)(2)(iii), such as the development of plans under this
section.

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, 58 FR 51735, Oct. 4, 1993, a significant regulatory action
is subject to 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
th[e] Executive [O]rder.
The purpose of this rule is to clarify the date by which State,
tribal, and local governments have to prepare or update their plans to
meet the criteria identified in 44 CFR part 201. This interim final
rule clarifies that local governments must have a mitigation plan
approved in order to receive a project grant through the PDM program
under any Notice of funding opportunity issued after November 1, 2003,
in fiscal year 2004 and beyond. As such, the rule itself will not have
an effect on the economy of more than $100,000,000.
Therefore, this rule is not a significant regulatory action and is
not an economically significant rule under Executive Order 12866. The
Office of Management and Budget (OMB) has reviewed this rule under
Executive Order 12866.

Executive Order 12898, Environmental Justice

Environmental Justice is incorporated into policies and programs
under Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994. The Executive Order requires each Federal agency to
conduct its programs, policies, and activities that substantially
affect human health or the environment, in a manner that ensures that
those programs, policies, and activities do not have the effect of
excluding persons from program participation, denying persons program
benefits, or subjecting persons to discrimination because of their
race, color, or national origin.

[[Page 61370]]

No action that FEMA can anticipate under the final rule will have a
disproportionately high or adverse human health and environmental
effect on any segment of the population. This rule extends the date for
development or update of State and local mitigation plans in compliance
with 44 CFR part 201. Accordingly, the requirements of Executive Order
12898 do not apply to this interim final rule.

Paperwork Reduction Act of 1995

This new interim final rule simply clarifies the date by which
States and communities have to comply with the planning requirements,
and clarifies which FEMA programs are affected by these requirements.
The changes do not affect the collection of information; therefore, no
change to the request for the collection of information is necessary.
In summary, this interim final rule complies with the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)).

Executive Order 13132, Federalism

Executive Order 13132, Federalism, dated August 4, 1999, sets forth
principles and criteria to which agencies must adhere in formulating
and implementing policies that have federalism implications, that is,
regulations that have substantial direct effects on 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 reviewed this rule under Executive Order 13132 and concluded
that the rule has no federalism implications as defined by the
Executive Order. 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.
FEMA will continue to evaluate the planning requirements and work
with interested parties as the planning requirements of 44 CFR part 201
are implemented. In addition, we actively encourage and solicit
comments on this interim final rule from interested parties, and will
consider them in preparing the final rule.

Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments

FEMA has reviewed this interim final rule under Executive Order
13175, which became effective on February 6, 2001. In this review, no
``tribal implications'' as defined in Executive Order 13175 were found
because it 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. Moreover, the interim
final rule does not impose substantial direct compliance costs on
tribal governments, nor does it preempt tribal law, impair treaty
rights or limit the self-governing powers of tribal governments.

Congressional Review of Agency Rulemaking.

FEMA sent this interim final rule to the Congress and to the
General Accounting Office under the Congressional Review of Agency
Rulemaking Act, Public Law 104-121. The rule is not a ``major rule''
within the meaning of that Act. It is an administrative action to
extend the time State and local governments have to prepare mitigation
plans required by Section 322 of the Stafford Act, as enacted in DMA
2000.
The rule will not result in a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. It will not have ``significant adverse
effects'' on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises.
In compliance with section 808(2) of the Congressional Review of
Agency Rulemaking Act, 5 U.S.C. 8(2), for good cause we find that
notice and public procedure on this interim final rule are
impracticable, unnecessary, or contrary to the public interest. In
order to make timely awards for the fiscal year 2003 PDM program, it is
essential that the clarification of the effective date of the planning
requirement be made effective as soon as possible. Accordingly, this
interim final rule is effective on October 28, 2003.

List of Subjects in 44 CFR Part 201, Part 204, and Part 206

Administrative practice and procedure, Disaster assistance, Grant
programs, Mitigation planning, Reporting and record keeping
requirements.

0
Accordingly, FEMA amends 44 CFR Parts 201, 204, and 206 as follows:

PART 201--MITIGATION PLANNING

0
1. The authority citation for part 201 continues to read as follows:

Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121-5206; Reorganization Plan No. 3 of
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; 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. 12673, 54 FR 12571, 3 CFR, 1989 Comp.,
p. 214.

0
2. Section 201.6(a)(2) is revised to read as follows:

Sec. 201.6 Local Mitigation Plans.

* * * * *
(a) * * *
(2) Local governments must have a mitigation plan approved pursuant
to this section in order to receive a project grant through the Pre-
Disaster Mitigation (PDM) program under any Notice of funding
opportunity issued after November 1, 2003. The PDM program is
authorized under Sec. 203 of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act, 42 U.S.C. 5133. PDM planning grants will
continue to be made available to local governments after this time to
enable them to meet the requirements of this section.
* * * * *

PART 204--FIRE MANAGEMENT ASSISTANCE GRANT PROGRAM

0
3. The authority citation for part 204 continues to read as follows:

Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121-5206; Reorganization Plan No. 3 of
1978, 43 FR, 41943, 3 CFR, 1978 Comp., p. 329; 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. 12673, 54 FR 12571, 2 CFR, 1989 Comp.,
p. 214.

0
4. Revise the definition of Hazard mitigation plan in Sec. 204.3 to
read as follows:

Sec. 204.3 Definitions used throughout this part.

* * * * *
Hazard mitigation plan. A plan to develop actions the State, local,
or tribal government will take to reduce the risk to people and
property from all hazards. The intent of hazard mitigation planning
under the Fire Management Assistance Grant Program is to identify
wildfire hazards and cost-effective mitigation alternatives that
produce

[[Page 61371]]

long-term benefits. We address mitigation of fire hazards as part of
the State's comprehensive Mitigation Plan, described in 44 CFR part
201.
* * * * *

0
5. Revise Sec. 204.51(d)(2) to read as follows:

Sec. 204.51 Application and approval procedures for a fire management
assistance grant.

* * * * *
(d) * * *
(2) Hazard Mitigation Plan. As a requirement of receiving funding
under a fire management assistance grant, a State, or tribal
organization, acting as Grantee, must:
(i) Develop a Mitigation Plan in accordance with 44 CFR part 201
that addresses wildfire risks and mitigation measures; or
(ii) Incorporate wildfire mitigation into the existing Mitigation
Plan developed and approved under 44 CFR part 201 that also addresses
wildfire risk and contains a wildfire mitigation strategy and related
mitigation initiatives.

PART 206--FEDERAL DISASTER ASSISTANCE FOR DISASTERS DECLARED ON OR
AFTER NOVEMBER 23, 1988.

0
6. The authority citation for part 206 continues to read as follows:

0
7. Revise Sec. 206.226(b) to read as follows:

Sec. 206.226 Restoration of damaged facilities.

* * * * *
(b) Mitigation planning. In order to receive assistance under this
section, as of November 1, 2004, the State must have in place a FEMA
approved State Mitigation Plan in accordance with 44 CFR part 201.
* * * * *

Dated: October 22, 2003.
Michael D. Brown,
Under Secretary, Emergency Preparedness and Response, Department of
Homeland Security.
[FR Doc. 03-27140 Filed 10-27-03; 8:45 am]

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