[Federal Register: September 13, 2004 (Volume 69, Number 176)]
[Rules and Regulations]
[Page 55094-55097]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13se04-6]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Parts 201 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 rule.
-----------------------------------------------------------------------
SUMMARY: This rule provides State and Indian tribal governments with a
mechanism to request an extension to the date by which they must
develop State Mitigation Plans as a condition of grant assistance. FEMA
regulations outline the requirements for State Mitigation Plans, which
must be completed by November 1, 2004 in order to receive FEMA grant
assistance. This interim rule allows FEMA to grant justifiable
extensions, in extraordinary circumstances, for State and Indian tribal
governments of up to six months, or no later than May 1, 2005. In
addition, this interim rule allows mitigation planning grants provided
through the Pre-Disaster Mitigation (PDM) program to continue to be
available to State, Indian tribal, and local governments after November
1, 2004.
DATES: Effective Date: September 13, 2004.
Comment Date: We will accept written comments through November 12,
2004.
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 (e-mail) FEMA-RULES@dhs.gov.
FOR FURTHER INFORMATION CONTACT: Karen Helbrecht, Risk Reduction
Branch, Mitigation Division, Federal Emergency Management Agency, 500 C
Street, SW., Washington DC 20472, (phone) 202-646-3358, (facsimile)
202-646-3104, or (e-mail) karen.helbrecht@dhs.gov.
SUPPLEMENTARY INFORMATION:
Introduction
On February 26, 2002, FEMA published an interim 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 requirements for State,
tribal, and local mitigation plans. On October 1, 2002, FEMA published
a change to that rule at 67 FR 61512, extending the date that the
planning requirements take effect. The October 1, 2002 interim rule
stated that by November 1, 2004, FEMA approved State Mitigation Plans
were required in order to receive non-emergency Stafford Act
assistance, and local mitigation plans were required in order to
receive mitigation project grants. The critical portion of this interim
rule provides a mechanism for Governors or Indian tribal leaders to
request an extension to the date that the planning requirements take
effect for State level mitigation plans. This interim rule allows
extensions up to May 1, 2005 to States or Indian tribal governments who
submit the necessary justification.
While all States and many Indian tribal governments have been
working on the required State Mitigation Plans, and many have been very
successful, a few have encountered extraordinary difficulties in
meeting the November 1, 2004 deadline. Due to the significant
implications of not having an approved plan, FEMA has decided to
provide an option for States and Indian tribal governments that may not
be able to meet the deadline, in order to allow all States to develop
effective Mitigation plans. The option allows the Governor or Indian
tribal leader to ask FEMA for an extension. A Governor or Indian tribal
leader would be required to submit a written request to FEMA for the
extension. The written request would include the justification for the
extension; the reasons the plan has not been completed; the amount of
additional time needed to complete the plan; and a strategy for
completing the plan. FEMA would review each request, and could grant up
to a six-month extension. However, the deadline would not be later than
May 1, 2005. Governors or Indian tribal leaders could request this
extension at any time after publication of this interim rule.
In addition, the current rule requirement states that States, or
Indian tribal governments who choose to apply directly to FEMA, must
have an approved mitigation plan by November 1, 2004 to be eligible for
planning or project grant funding under the Pre-Disaster Mitigation
(PDM) program. This rule change allows PDM planning grants to continue
to be available to States and Indian tribal governments who do not have
a FEMA approved mitigation plan. Local governments, and Indian tribal
governments acting as subgrantees, continue to be eligible for PDM
planning grants under the current requirement. Mitigation planning is
the foundation to saving lives, protecting properties, and developing
disaster resistant communities. The PDM program is the primary
mechanism that provides grant assistance for mitigation planning. State
and Indian tribal governments will be able to apply for a PDM planning
grant in order to develop or update their mitigation plan which, when
approved by FEMA, will maintain their eligibility for non-emergency
Stafford Act assistance.
Finally, this interim rule makes technical and conforming
amendments to other sections of FEMA regulations affected by the
provision of Part 201 Mitigation planning, and adjusts the general
major disaster allocation for the Hazard Mitigation Grant Program
(HMGP) from 15 percent to 7\1/2\ percent to be consistent with a recent
statutory amendment.
FEMA encourages comments on this interim 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,
[[Page 55095]]
however, provides an exception from that general rule where the agency
for good cause finds that the procedures for prior comment and response
are impracticable, unnecessary, or contrary to public interest.
This interim rule provides an option for States and Indian tribal
governments to request an extension to the date by which they have to
develop State Mitigation Plans required as a condition of receiving
non-emergency Stafford Act grant assistance. State and Indian tribal
governments are currently under the assumption, consistent with the
current requirements, that plans are required by November 1, 2004,
whereas this interim rule provides a mechanism to extend that date up
to May 1, 2005, in certain cases. It does not affect the date that
local plans will be required for other programs, such as the PDM
program. In order for State and Indian tribal government resources to
be appropriately identified and available to complete the required
plans, it is essential that the date extension be made effective as
soon as possible. If the rule were delayed beyond the November 1, 2004
deadline, and a State or Indian tribal government did not have a FEMA
approved mitigation plan, all entities within that State or Indian
tribe would be ineligible for grants to restore damaged public
facilities, Fire Management Assistance grants, and HMGP funding. The
benefits of this rule will only be realized if the rule is immediately
effective and available to State and Indian tribal governments prior to
the existing November 1, 2004 deadline. As a practical matter, since
FEMA anticipates opening the application period for the FY2004/2005 PDM
program in September, this rule is necessary to ensure that FEMA can
provide timely guidance to States and Indian tribal governments of
their eligibility for PDM planning funds, so they do not miss the
opportunity to submit the necessary applications. FEMA believes that 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), FEMA finds that there is good cause for the interim rule to
take effect immediately upon publication in the Federal Register in
order to meet the needs of States and communities by identifying the
new effective date for planning requirement under 44 CFR Part 201.
The rule also allows PDM planning grants to continue to be
available to States and Indian tribal governments who do not have a
FEMA approved mitigation plan. The existing deadline for States to have
a FEMA approved mitigation plan is November 1, 2004, and since the next
round of competition for PDM funding will occur after that deadline, it
is essential that the change in the planning requirement be made
effective as soon as possible. This will allow State and Indian tribal
governments to apply and compete for planning grants during the next
PDM competitive cycle.
Therefore, FEMA finds that prior notice and comment on this rule
would not further the public interest. We actively encourage and
solicit comments on this interim rule from interested parties, and we
will consider them as well as those submitted on the original interim
planning rule in preparing the final rule. For these reasons, FEMA
believes that we have good cause to publish an interim 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, October 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
the Executive Order.
The purpose of this rule is to extend the date by which State and
Indian tribal governments have to prepare or update their mitigation
plans to meet the criteria identified in 44 CFR Part 201. This interim
rule provides a mechanism for States and Indian tribal governments to
request an extension of the November 1, 2004 deadline for State
Mitigation Plans, and allows State and Indian tribal governments that
do not have an approved plan to compete for PDM planning funds after
the deadline. As such, the rule itself will not have an effect on the
economy of more than $100,000,000, nor otherwise constitute a
significant regulatory action.
The Office of Management and Budget has concluded that this rule is
not significant for purposes of Executive Order 12866.
Executive Order 12898, Environmental Justice
Under Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629, February 16, 1994, FEMA incorporates
environmental justice into our policies and programs. The Executive
Order requires each Federal agency to conduct its programs, policies,
and activities that substantially affect human health or the
environment, in a manner that ensures that those programs, policies,
and activities do not have the effect of excluding persons from
participation in our programs, denying persons the benefits of our
programs, or subjecting persons to discrimination because of their
race, color, or national origin.
No action that we can anticipate under the interim 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 Indian tribal mitigation plans in
compliance with 44 CFR 201.4. Accordingly, the requirements of
Executive Order 12898 do not apply to this interim rule.
Paperwork Reduction Act of 1995
This new interim rule simply provides an option to extend the date
by which States have to comply with the planning requirements, and
clarifies the planning requirements for the PDM program. 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 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 that agencies must adhere to in formulating and
[[Page 55096]]
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.
We have reviewed this rule under Executive Order 13132 and have
concluded that the rule does not have federalism implications as
defined by the Executive Order. We have 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.
We will continue to evaluate the planning requirements and will
work with interested parties as we implement the planning requirements
of 44 CFR Part 201. In addition, we actively encourage and solicit
comments on this interim rule from interested parties, and we will
consider them in preparing the final rule.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
FEMA has reviewed this interim rule under Executive Order 13175,
which became effective on February 6, 2001. In reviewing the interim
rule, we find that it does not have ``tribal implications'' as defined
in Executive Order 13175 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 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. In fact, this interim rule relieves a burden
on Indian tribal governments by allowing them to apply for PDM planning
grants after the November 1, 2004 deadline.
Congressional Review of Agency Rulemaking
FEMA has sent this interim rule to the Congress and to the General
Accounting Office under the Congressional Review of Agency Rulemaking
Act, Public Law 104-121. This interim rule is a not ``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 interim 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. The rule is not
an unfunded Federal mandate within the meaning of the Unfunded Mandates
Reform Act of 1995, Public Law 104-4, and any enforceable duties that
we impose are a condition of Federal assistance or a duty arising from
participation in a voluntary Federal program.
List of Subjects in 44 CFR Parts 201 and 206
Administrative practice and procedure, Disaster assistance, Grant
programs, Mitigation planning, Reporting and recordkeeping
requirements.
0
Accordingly, FEMA amends 44 CFR, Parts 201 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. In Sec. 201.3 add paragraph (c)(7) to read as follows:
Sec. 201.3 Responsibilities.
* * * * *
(c) * * *
(7) If necessary, submit a request from the Governor to the
Director of FEMA, requesting an extension to the plan deadline in
accordance with Sec. 201.4(a)(2).
* * * * *
0
3. Revise Sec. 201.4(a) to read as follows:
Sec. 201.4 Standard State Mitigation Plans.
(a) Plan requirement. (1) By November 1, 2004, States must have an
approved Standard State Mitigation Plan meeting the requirements of
this section in order to receive assistance under the Stafford Act,
although assistance authorized under disasters declared prior to
November 1, 2004 will continue to be made available. Until that date,
existing, FEMA approved State Mitigation Plans will be accepted. In any
case, emergency assistance provided under 42 U.S.C. 5170a, 5170b, 5173,
5174, 5177, 5179, 5180, 5182, 5183, 5184, 5192 will not be affected.
Mitigation planning grants provided through the Pre-Disaster Mitigation
(PDM) program, authorized under Section 203 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5133, will also
continue to be available. The mitigation plan is the demonstration of
the State's commitment to reduce risks from natural hazards and serves
as a guide for State decision makers as they commit resources to
reducing the effects of natural hazards. States may choose to include
the requirements of the HMGP Administrative Plan in their mitigation
plan, but must comply with the requirement for updates, amendments, or
revisions listed under 44 CFR 206.437.
(2) A Governor, or Indian tribal leader, may request an extension
to the plan approval deadline by submitting a request in writing to the
Director of FEMA, through the Regional Director. At a minimum, this
must be signed by the Governor or the Indian tribal leader, and must
include justification for the extension, identification of the reasons
the plan has not been completed, identification of the amount of
additional time required to complete the plan, and a strategy for
finalizing the plan. The Director of FEMA will review each request and
may grant a plan approval extension of up to six months. However, any
extended plan approval deadline will be no later than May 1, 2005.
* * * * *
0
4. Revise Sec. 201.6(a)(1) to read as follows:
Sec. 201.6 Local Mitigation Plans.
* * * * *
(a) * * *
(1) For disasters declared on or after November 1, 2004, a local
government must have a mitigation plan approved pursuant to this
section in order to receive HMGP project grants.
* * * * *
PART 206--FEDERAL DISASTER ASSISTANCE FOR DISASTERS DECLARED ON OR
AFTER NOVEMBER 23, 1988
0
5. The authority citation for part 206 continues to read as follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42
[[Page 55097]]
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
6. 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 (subject to 44 CFR 201.4(a)(2)), the
State must have in place a FEMA approved State Mitigation Plan in
accordance with 44 CFR part 201.
* * * * *
0
7. In Sec. 206.432, revise paragraphs (b) introductory text and (b)(1)
to read as follows:
Sec. 206.432 Federal grant assistance.
* * * * *
(b) Amounts of assistance. The total of Federal assistance under
this subpart shall not exceed either 7\1/2\ or 20 percent of the total
estimated Federal assistance (excluding administrative costs) provided
for a major disaster under 42 U.S.C. 5170b, 5172, 5173, 5174, 5177,
5178, 5183, and 5201 as follows:
(1) Seven and one-half (7\1/2\) percent. Effective November 1,
2004, a State with an approved Standard State Mitigation Plan, which
meets the requirements outlined in 44 CFR 201.4, shall be eligible for
assistance under the HMGP not to exceed 7\1/2\ percent of the total
estimated Federal assistance described in this paragraph. Until that
date, existing FEMA approved State Mitigation Plans will be accepted.
States may request an extension to the deadline of up to six months to
the Director of FEMA by providing written justification in accordance
with 44 CFR 201.4(a)(2).
* * * * *
0
8. Revise Sec. 206.434(b)(1) to read as follows:
Sec. 206.434 Eligibility.
* * * * *
(b) * * *
(1) For all disasters declared on or after November 1, 2004, local
and Indian tribal government applicants for project subgrants must have
an approved local mitigation plan in accordance with 44 CFR 201.6 prior
to receipt of HMGP subgrant funding for projects. Until November 1,
2004, local mitigation plans may be developed concurrent with the
implementation of subgrants.
* * * * *
Michael D. Brown,
Under Secretary, Emergency Preparedness and Response, Department of
Homeland Security.
[FR Doc. 04-20609 Filed 9-10-04; 8:45 am]
BILLING CODE 9110-41-P