[Federal Register Volume 69, Number 176 (Monday, September 13, 2004)]
[Rules and Regulations]
[Pages 55094-55097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20609]


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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.

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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) [email protected].

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) [email protected].

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]
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