[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Rules and Regulations]
[Pages 20549-20551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8186]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID FEMA-2008-0003]
RIN 1660-AA59
Disaster Assistance; Change in Federal Share for Alternate
Projects for Public Facilities
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Final rule.
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SUMMARY: This final rule makes a conforming amendment to the Federal
Emergency Management Agency's (FEMA) Public Assistance regulations to
reflect two changes to the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (the Stafford Act) made by the Security and
Accountability For Every Port Act of 2006 (the SAFE Port Act). The
first change amends the percentage of the Federal contribution for
alternate projects from 75 percent to 90 percent of the Federal share
of the Federal estimate of eligible costs for public facilities. The
second change removes language that provided for Federal funding of 90
percent of the Federal share of the approved Federal estimate of
eligible costs for alternate projects in areas with unstable soil.
These changes are technical and conforming amendments that revise
FEMA's regulations to conform with amendments to the Stafford Act. FEMA
is exercising no discretion in implementing these changes.
DATES: This final rule is effective April 16, 2008.
FOR FURTHER INFORMATION CONTACT: James A. Walke, Director, Public
Assistance Division, Federal Emergency Management Agency, 500 C Street
SW., Room 601, Washington, DC 20472, (phone) 202-646-2751; (facsimile)
202-646-3304; or (e-mail) [email protected].
SUPPLEMENTARY INFORMATION: Under the authority of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (the Stafford
Act), Public Law 93-288, as amended, 42 U.S.C. 5121-5207, the Federal
Emergency Management Agency (FEMA) provides funding to State or local
governments or private nonprofit organizations (PNPs) to repair,
restore, reconstruct or replace public facilities owned or controlled
by the State or local government or PNP. If, however, the State or
local government or PNP determines that the public welfare would not
best be served by repairing, restoring, reconstructing, or replacing
the public facility, it may elect to receive a contribution to use for
alternate projects. Any alternate project must either be ``to repair,
restore, or expand other selected public facilities; to construct new
facilities; or to fund hazard mitigation measures that the State or
local government determines to be necessary to meet a need for
governmental services and functions in the area affected by the major
disaster.'' (42 U.S.C. 5172(c)(1); 44 CFR 206.203(d)(2)).
Section 609 of the Security and Accountability For Every Port Act
of 2006 (SAFE Port Act), Public Law 109-347, 120 Stat. 1884, October
13, 2006, amended section 406(c)(1) of the Stafford Act by changing the
Federal contribution for alternate projects for State and local
government applicants from ``75 percent of the Federal share'' of the
eligible costs for public facilities to ``90 percent of the Federal
share'' of the eligible costs for public facilities. Accordingly FEMA
is revising 44 CFR 206.203(d)(2)(ii) to reflect this statutorily
mandated percent share increase for public facilities.
Because Congress made this change for public facilities, but made
no change to the 75 percent contribution for private nonprofit
applicants' alternate projects, FEMA is adding a new paragraph to
separately address the Federal contribution for private nonprofit
facilities, which remains at 75 percent.
Section 609 of the SAFE Port Act also struck former section 406(B)
of the Stafford Act, which provided for Federal funding of 90 percent
of the Federal share of the approved Federal estimate of eligible costs
of alternate projects in areas with unstable soil. Because Congress
removed this authority from the Stafford Act and because FEMA will
already be providing funding of 90 percent of the Federal share of the
approved Federal estimate to State and local governments regardless of
the stability of the soil through its change to 44 CFR
206.203(d)(2)(ii), FEMA is removing the regulation that implemented
section 406(B) at 44 CFR 206.203(d)(2)(iii).
Administrative Procedure Act
Under the Administrative Procedure Act (APA), a notice of a
proposed rulemaking is not necessary to revise a regulation if the
agency finds for good cause that notice and public procedure are
``impracticable, unnecessary, or contrary to the public interest.'' See
5 U.S.C. 553(b)(3)(B). This rulemaking conforms with the good cause
exemption under section 553(b)(B) of the APA because notice and comment
is unnecessary and impractical. Public comments would serve no useful
purpose, as the revision to the regulation is mandated by the change to
FEMA's statutory authority, and FEMA has no discretion to alter this
statutory mandate. For these reasons, FEMA also finds that it has good
cause not to delay the effective date of this rule under 5 U.S.C.
553(d)(3).
Executive Order 12866, as Amended, Regulatory Planning and Review
FEMA has prepared and reviewed this rulemaking under the provisions
of Executive Order 12866, 58 FR 51735, Oct. 4, 1993, and as amended.
Under Executive Order 12866, a significant regulatory action is subject
to the Office
[[Page 20550]]
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 may 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 rule is not a significant regulatory action. This regulation
will revise FEMA's regulations to conform to changes Congress made in
the agency's authorizing statute. Before Congress revised the
contribution amount for alternate projects from 75 percent to 90
percent of the Federal share of the eligible costs for public
facilities, FEMA provided on average $520,000 per year in contributions
for alternate projects. Although the change to the Stafford Act and the
change to FEMA's regulations by this rule will only affect the
contribution amount for public facilities, this figure includes funds
for public facilities as well as private nonprofit facilities, as
independent data is unavailable. This regulatory change is expected,
therefore, to increase that figure by 15 percent (75 to 90), which is
$78,000. Therefore the average amount of FEMA's contribution toward
alternate projects would rise from $520,000 to $598,000 per year.
There is no effect on the economy by the removal of the language
providing for Federal funding of 90 percent of the Federal share of the
approved Federal estimate of eligible costs of alternate projects in
areas with unstable soil. Since FEMA will already be providing funding
of 90 percent of the Federal share of the approved Federal estimate
regardless of the stability of the soil, those projects that have
unstable soil will see no difference.
This rule is not a ``significant regulatory action'' under
Executive Order 12866; therefore, OMB has not reviewed it under that
Order. The annual effect of this rule on the economy is approximately
$78,000. FEMA knows of no other conditions that would qualify this
final rule as a ``significant regulatory action'' within the definition
of section 3(f) of the Executive Order.
Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA'') mandates that an agency
conduct an RFA analysis when an agency is ``required by section 553 * *
* to publish general notice of proposed rulemaking for any proposed
rule * * *.'' 5 U.S.C. 603(a). Accordingly, RFA analysis is not
required when a rule is exempt from notice and comment rulemaking under
5 U.S.C. 553(b). DHS has determined that good cause exists under 5
U.S.C. 553(b)(B) to exempt this rule from the notice and comment
requirements of 5 U.S.C. 553(b). Therefore no RFA analysis under 5
U.S.C. 603 is required for this rule.
Unfunded Mandates Reform Act of 1995
FEMA has not issued a notice of proposed rulemaking for this
regulatory action; therefore, the provisions of the Unfunded Mandates
Reform Act of 1995, as amended, 2 U.S.C. 658, 1501-1504, 1531-1536,
1571, do not apply to this regulatory action.
Paperwork Reduction Act of 1995
This rulemaking contains no new collection of information, or
revision to an existing collection of information, as defined by the
Paperwork Reduction Act of 1995 (PRA), as amended, 44 U.S.C. 3501-3520.
National Environmental Policy Act of 1969 (NEPA)
Under the National Environmental Policy Act of 1969 (NEPA), as
amended, 42 U.S.C. 4321, 4331-4335, 4344, and 4365, an agency must
prepare an environmental assessment and environmental impact statement
for any rulemaking that significantly affects the quality of the human
environment. FEMA has determined that this rulemaking does not
significantly affect the quality of the human environment and
consequently has not prepared an environmental assessment or
environmental impact statement. The rulemaking pertains to the repair,
restoration, reconstruction, or replacement of a public facility. These
actions are categorically excluded from the preparation of
environmental impact statements and environmental assessments pursuant
to 44 CFR 10.8(d)(2)(xv), pertaining to the repair, reconstruction,
restoration, elevation, retrofitting, upgrading to current codes and
standards, or replacement of any facility in a manner that
substantially conforms to the preexisting design, function, and
location. Under 44 CFR 10.8(d)(2)(ii), the preparation, revision, and
adoption of regulations related to actions that qualify for categorical
exclusions are also excluded from the preparation of environmental
impact statements and environmental assessments. Since this rulemaking
pertains to actions that qualify for a categorical exclusion, FEMA is
not required to prepare an environmental assessment or environmental
impact statement.
Executive Order 13132, Federalism
Executive Order 13132, Federalism, 64 FR 43255, August 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 this final rule under Executive Order 13132 and
because this rule merely implements a statutory change in the
percentage of public assistance funding that can be provided for
alternate projects, FEMA has determined that this rule does not have
federalism implications as defined by the Executive Order.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249, November 9, 2000, applies to agency
regulations that have tribal implications, that is, regulations that
have substantial direct effects 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. Under this Executive Order, to the extent
practicable and permitted by law, no agency shall promulgate any
regulation that has tribal implications, that imposes substantial
direct compliance costs on Indian tribal governments, and that is not
required by statute, unless funds necessary to pay the direct costs
[[Page 20551]]
incurred by the Indian tribal government or the tribe in complying with
the regulation are provided by the Federal Government, or the agency
consults with tribal officials.
This rule implements a statutory change in the percentage of Public
Assistance funding that can be provided for alternate projects. This
rulemaking 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.
Executive Order 12898, Environmental Justice
Pursuant to Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629, February 16, 1994, as amended by Executive
Order 12948, 60 FR 6381, February 1, 1995, FEMA incorporates
environmental justice into its 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 programs, denying persons the benefits of programs, or
subjecting persons to discrimination because of race, color, or
national origin.
This rulemaking will not have a disproportionately high or adverse
effect on minorities or low-income populations.
Congressional Review of Agency Rulemaking
Under the Congressional Review of Agency Rulemaking Act (CRA), 5
U.S.C. 801-808, before a rule can take effect, the Federal agency
promulgating the rule must submit to Congress and to the Government
Accountability Office (GAO) a copy of the rule, a concise general
statement relating to the rule, including whether it is a major rule,
the proposed effective date of the rule, a copy of any cost-benefit
analysis, descriptions of the agency's actions under the Regulatory
Flexibility Act and the Unfunded Mandates Reform Act, and any other
information or statements required by relevant executive orders. FEMA
has sent this rule to the Congress and to GAO pursuant to the CRA.
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.
0
For the reasons set forth in the preamble, FEMA amends part 206 of
title 44 of the Code of Federal Regulations as follows:
PART 206--FEDERAL DISASTER ASSISTANCE
0
1. The authority citation for part 206 continues to read as follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5206; Reorganization Plan No.
3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security
Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412;
E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.
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2. Revise paragraphs (d)(2)(ii) and (d)(2)(iii) of Sec. 206.203 to
read as follows:
Sec. 206.203 Federal grant assistance.
* * * * *
(d) * * *
(2) * * *
(ii) Federal funding for alternate projects for damaged public
facilities will be 90 percent of the Federal share of the Federal
estimate of the cost of repairing, restoring, reconstructing, or
replacing the facility and of management expenses.
(iii) Federal funding for alternate projects for damaged private
nonprofit facilities will be 75 percent of the Federal share of the
Federal estimate of the cost of repairing, restoring, reconstructing,
or replacing the facility and of management expenses.
* * * * *
Dated: April 10, 2008.
R. David Paulison,
Administrator, Federal Emergency Management Agency.
[FR Doc. E8-8186 Filed 4-15-08; 8:45 am]
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