[Federal Register Volume 68, Number 208 (Tuesday, October 28, 2003)]
[Rules and Regulations]
[Pages 61368-61371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27140]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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) [email protected].

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) [email protected].

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:

    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
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]
BILLING CODE 9110-13-P