[Federal Register Volume 67, Number 190 (Tuesday, October 1, 2002)]
[Rules and Regulations]
[Pages 61512-61515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24998]


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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Parts 201 and 206

RIN 3067-AD22


Hazard Mitigation Planning and Hazard Mitigation Grant Program

AGENCY: Federal Emergency Management Agency.

ACTION: Interim final rule.

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SUMMARY: This rule extends the date by which State and local 
governments must develop mitigation plans as a condition of grant 
assistance in compliance with 44 CFR Part 201. The regulations in Part 
201 outline the requirements for State and local mitigation plans, 
which must be completed by November 1, 2003 in order to continue to 
receive FEMA grant assistance. This interim final rule extends that 
date to November 1, 2004.

DATES: Effective Date: October 1, 2002.
    Comment Date: We will accept written comments through December 2, 
2002.

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) [email protected].

FOR FURTHER INFORMATION CONTACT: Terry Baker, Federal Insurance and 
Mitigation Administration, Federal Emergency Management Agency, 500 C 
Street, SW., Washington, DC, 20472, 202-646-4648, (facsimile) 202-646-
3104, or (e-mail) [email protected].

SUPPLEMENTARY INFORMATION:

Introduction

    Throughout the preamble and the rule the terms ``we'', ``our'' and 
``us'' refer to FEMA.
    On February 26, 2002, FEMA published an interim final rule 
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 Sec.  104 of the Disaster Mitigation Act of 2000, (DMA 
2000) Pub. L. 106-390. This identified the requirements for State and 
local mitigation plans necessary for FEMA assistance. The critical 
portion of the current interim

[[Page 61513]]

final rule being published extends the date that the planning 
requirements take effect. The date is being modified from November 1, 
2003 to November 1, 2004 for all programs except the Pre-Disaster 
Mitigation (PDM) program.
    The date that local mitigation plans will be required for the PDM 
program as a condition of ``brick and mortar'' project grant funding 
will continue to be November 1, 2003. Our objective is to encourage the 
use of the PDM program to develop State and local mitigation plans that 
will meet the criteria for all of our mitigation programs. The initial 
implementation of the PDM program allows States to prioritize the 
funding towards the development of mitigation plans in their most high-
risk communities, positioning them to be eligible for project grant 
funding when it becomes available. The PDM program will benefit from 
the experiences in the Flood Mitigation Assistance (FMA) program, which 
has had a planning requirement for many years. States often prioritize 
FMA planning funds to a community in one year, with the implementation 
of the project occurring after the appropriate planning has been 
completed.
    We received many thoughtful comments on much of the rule, and we 
intend to address them all prior to finalizing the rule. However, the 
overwhelming number of comments regarding the effective date for the 
new planning requirements on both the State and local governments 
indicated to us a need to extend that date. This new interim final rule 
will address this issue, and clarify the planning requirement for the 
recently published Fire Management Assistance Grant Program final rule.
    Since publication of the interim final rule, it became clear to us 
that, in some cases, there was a need to extend the effective date of 
the planning requirement to allow more time for plan development. An 
additional year will allow State, tribal, and local governments time to 
identify necessary resources, establish support for the planning 
process, and develop meaningful mitigation plans. Legislative sessions, 
which in some cases may be once every two years, may be necessary to 
obtain funding for plan development and/or adoption of the plan prior 
to submittal to FEMA. Many State and local fiscal years run from July 
through June, and budget requests must be made months prior to the 
beginning of the fiscal year. This has made it difficult for many 
jurisdictions to begin the planning process. Our intention in extending 
the date is to allow for more thoughtful and comprehensive development 
of plans and implementation of this regulation. Nearly all of those 
commenting on the rule recognize the importance of planning. The 
generally accepted model is that good mitigation happens when good 
mitigation plans are the basis for the actions taken.
    Even though we are extending the date for meeting the planning 
requirements, we encourage States and localities to continue to work on 
getting plans developed and approved as soon as feasible, and not to 
wait until the deadline to begin the process. It is important to note 
that although there is no deadline for approval of Enhanced State 
Mitigation Plans in order to qualify for the 20 percent HMPG funding, 
it will only be available to States if the plan is approved prior to a 
disaster declaration.
    Although many comments addressed the need to extend the deadline, 
only a few provided specific alternative dates. We received several 
comments requesting a phased approach to the deadline for communities 
based on general risk levels or the priorities identified in a State 
plan. At this point, FEMA is not considering any option for a phased 
approach to the timeline since we believe that it would make this 
requirement too difficult to administer, for both States and FEMA. We 
believe that the one-year extension for the HMGP will address most of 
the concerns regarding the effective date of the planning requirements.
    We have also received some questions regarding the relationship of 
the planning requirements of the Fire Management Assistance Grant 
Program to the plans developed under 44 CFR part 201. A Standard or 
Enhanced State Mitigation plan, which includes an evaluation of 
wildfire risk and mitigation, as identified in 44 CFR part 201 will 
meet the planning requirement of the Fire Management Assistance Grant 
Program. Until States develop and have either of those plans approved 
by FEMA, States must comply with the fire management planning 
requirement as stated in 44 CFR part 204 by ensuring that there is a 
fire component to the existing State Mitigation Plan or a separate 
wildfire mitigation plan.
    Finally, we would like to clarify that for grants awarded under any 
hazard mitigation program prior to October 30, 2000 for the purpose of 
developing or updating a hazard mitigation plan, we will not provide an 
increase in funding or extensions for changes in the scope of work for 
purposes of meeting the enhanced state plan criteria, since the 
enhanced plan concept did not exist prior to the Disaster Mitigation 
Act of 2000, enacted on that date.
    We encourage comments on this interim final rule, and we will make 
every effort to involve all interested parties, including those who 
commented on the original interim final planning rule, prior to the 
development of the Final Rule.

Justification for Interim Final Rule

    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 public interest.
    This interim final rule extends the date that State, tribal, and 
local governments have to develop mitigation plans required as a 
condition of FEMA grant assistance. State, tribal, and local 
governments are currently under the assumption that plans are required 
by November 1, 2003, whereas this interim final rule extends that date 
to November 1, 2004 for the HMGP. It does not affect the date for 
compliance for other programs, such as the Pre-disaster Mitigation 
(PDM) program. In order for State, local and tribal resources to be 
appropriately identified and used, it is essential that the date 
extension be made effective as soon as possible. We believe 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 that there is 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 and communities by identifying the new 
effective date for planning requirement under 44 CFR part 201. 
Therefore, we find that prior notice and comment on this rule would not 
further the public interest. We actively encourage and solicit comments 
on this interim final rule from interested parties, and we will 
consider them as well as those submitted on the original interim final 
planning rule in preparing the final rule. For these reasons, we 
believe we have 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.

[[Page 61514]]

Executive Order 12866, Regulatory Planning and Review

    We have prepared and reviewed this rule under the provisions of 
E.O. 12866, Regulatory Planning and Review. Under Executive Order 
12866, 58 FR 51735, October 4, 1993, a significant regulatory action is 
subject to review by The Office of Management and Budget (OMB) 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 
local governments have to prepare or update their plans to meet the 
criteria identified in 44 CFR part 201. The original date, November 1, 
2003, was determined to be difficult to meet. This interim final rule 
extends that date to November 1, 2004 for the post disaster Hazard 
Mitigation Grant Program. The date of November 1, 2003 will still apply 
to project grants under the Pre-disaster Mitigation program. 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. OMB 
has not reviewed this rule under 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, we incorporate 
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 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

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)) we submitted a request for review and approval of a new 
collection of information when the initial interim final rule was 
published on February 26, 2002. OMB approved this collection of 
information for use through August 31, 2002, under the emergency 
processing procedures in OMB regulation 5 CFR 1320.1, OMB Number 3067-
0297. There have been no changes to the collection of information, and 
we have submitted a request for OMB approval to continue the use of the 
collection of information for a term of three years. The request is 
being processed under OMB's normal clearance procedures in accordance 
with provisions of OMB regulation 5 CFR 1320.11.
    This new interim final rule simply extends 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)).

FOR FURTHER INFORMATION CONTACT: You may obtain copies of the OMB 
paperwork clearance package by contacting Ms. Muriel Anderson at (202) 
646-2625 (voice), (202) 646-3347 (facsimile), or by e-mail at 
[email protected].

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 
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 E.O. 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 final rule from interested parties, and we 
will consider them in preparing the final rule.

Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments

    We have reviewed this interim final rule under Executive Order 
13175, which became effective on February 6, 2001. In reviewing the 
interim final 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 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

    We have 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 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.

[[Page 61515]]

    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. This final rule is subject to 
the information collection requirements of the Paperwork Reduction Act, 
and OMB has assigned Control No. 3067-0297. 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 Part 206

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


    Accordingly, amend 44 CFR, chapter I, as follows:

PART 201--MITIGATION PLANNING

    1. The authority 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.


    2. Revise Sec.  201.3(c)(3) to read as follows:


Sec.  201.3  Responsibilities.

* * * * *
    (c) * * *
    (3) At a minimum, review and, if necessary, update the Standard 
State Mitigation Plan by November 1, 2004 and every three years from 
the date of the approval of the previous plan in order to continue 
program eligibility.
* * * * *

    3. Revise Sec.  201.4(a) to read as follows:


Sec.  201.1  Standard State Mitigation Plans.

    (a) Plan requirement. 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. 
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 updates, amendments or revisions requirement listed under 44 CFR 
206.437.
* * * * *

    4. Revise Sec.  201.6(a) to read as follows:


Sec.  201.6  Local Mitigation Plans.

* * * * *
    (a) Plan requirements.
    (1) For disasters declared after November 1, 2004, a local 
government must have a mitigation plan approved pursuant to this 
section in order to receive HMGP project grants. Until November 1, 
2004, local mitigation plans may be developed concurrent with the 
implementation of the HMGP project grant.
    (2) By November 1, 2003, 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, 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 all local governments after this time to enable them 
to meet the requirements of this section.
    (3) Regional Directors may grant an exception to the plan 
requirement in extraordinary circumstances, such as in a small and 
impoverished community, when justification is provided. In these cases, 
a plan will be completed within 12 months of the award of the project 
grant. If a plan is not provided within this timeframe, the project 
grant will be terminated, and any costs incurred after notice of 
grant's termination will not be reimbursed by FEMA.
    (4) Multi-jurisdictional plans (e.g. watershed plans) may be 
accepted, as appropriate, as long as each jurisdiction has participated 
in the process and has officially adopted the plan. State-wide plans 
will not be accepted as multi-jurisdictional plans.
* * * * *

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

    4. The authority for Part 206 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.


    5. Revise Sec.  206.432(b)(1) to read as follows:


Sec.  206.432  Federal grant assistance.

* * * * *
    (b) * * *
    (1) Fifteen (15) 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 15 percent of the total estimated Federal 
assistance described in this paragraph. Until that date, existing, FEMA 
approved State Mitigation Plans will be accepted.
* * * * *
    6. Revise Sec.  206.434(b)(1) to read as follows:


Sec.  206.434  Elgibility.

* * * * *
    (b) * * *
    (1) For all disasters declared on or after November 1, 2004, local 
and tribal government applicants for subgrants must have an approved 
local mitigation plan in accordance with 44 CFR 201.6 prior to receipt 
of HMGP subgrant funding. Until November 1, 2004, local mitigation 
plans may be developed concurrent with the implementation of subgrants.
* * * * *

    Dated: September 26, 2002.
Joe M. Allbaugh,
Director.
[FR Doc. 02-24998 Filed 9-30-02; 8:45 am]
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