[Federal Register Volume 71, Number 135 (Friday, July 14, 2006)]
[Rules and Regulations]
[Pages 40025-40027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11128]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 206

[Docket ID FEMA-2006-0028]
RIN 1660-AA45


Public Assistance Eligibility

AGENCY: Federal Emergency Management Agency (FEMA), Department of 
Homeland Security (DHS).

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule will allow FEMA to reimburse State, Tribal 
and local governments within an area designated under a Presidential 
emergency or major disaster declaration for sheltering and evacuation 
costs incurred outside of the designated area. Under this rule, FEMA 
may also directly provide sheltering and evacuation assistance outside 
of the designated area.

DATES: Effective: This rule is effective July 14, 2006. Comments: 
Comments due on or before September 12, 2006.

ADDRESSES: You may submit comments, identified by Docket ID FEMA-2006-
0028, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: [email protected]. Include Docket ID FEMA-2006-0028 in the 
subject line of the message.
    Fax: 202-646-4536
    Mail/Hand Delivery/Courier: Rules Docket Clerk, Office of General 
Counsel, Federal Emergency Management Agency, Room 835, 500 C Street, 
SW., Washington, DC 20472.
    Instructions: All Submissions received must include the agency name 
and Docket ID (if available) for this interim final rule. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided. For detailed instructions 
on submitting comments, see the ``Public Participation'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov. Submitted comments may also be inspected at FEMA, 
Office of General Counsel, 500 C Street, SW., Room 835, Washington, DC 
20472.

FOR FURTHER INFORMATION CONTACT: James A. Walke, FEMA, 500 C Street, 
SW., Washington, DC 20472, or call (202) 646-2751, or e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
interim rule. FEMA also invites comments that relate to the economic, 
environmental, or federalism affects that might result from this 
interim rule. Comments that will provide the most assistance to FEMA in 
developing these procedures will reference a specific portion of the 
interim rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change.
    Instructions: All submissions received must include the agency name 
and Docket ID for this rulemaking. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected at Office of General Counsel, Federal Emergency 
Management Agency, 500 C Street, SW., Room 835, Washington, DC 20472.

Background

    In response to Hurricanes Katrina and Rita in 2005, pre- and post-
storm evacuations created a significant need for evacuation and 
sheltering outside of the counties and States that were initially 
designated eligible for assistance under the emergency and major 
disaster declarations. State and local governmental entities outside of 
the designated areas provided transportation and shelter for evacuees 
and, as a result, incurred significant costs. However, FEMA's existing 
regulation required that the eligible work be performed within the 
designated disaster (or emergency) area. 44 CFR 206.223(a)(2). 
Therefore, in order for the non-designated State and local governments 
to recoup their eligible costs, the States were required to request and 
obtain approval for a separate emergency declaration. Otherwise, there 
was no mechanism whereby FEMA could provide assistance to those 
entities that provided evacuation and sheltering services outside the 
designated areas.

Discussion of Interim Rule

    This interim rule implements a change to 44 CFR 206.223(a)(2). This 
rule will allow FEMA to reimburse for sheltering and evacuation costs 
incurred outside of the area designated under a Presidential emergency 
or major disaster declaration, if the costs are otherwise eligible for 
Public Assistance funding. Under this rule, an eligible applicant (as 
defined in 44 CFR 206.222) within the designated disaster area may 
request an entity outside of the designated area to provide evacuation 
and sheltering services for its citizens. In such circumstances, the 
entity that provides the evacuation or sheltering services may seek 
reimbursement under a mutual aid or similar agreement \1\ from the 
eligible applicant within the designated area that requested the 
services. The eligible applicant will reimburse the providing entity 
and FEMA will then reimburse the eligible applicant. Alternatively, 
FEMA may request an entity outside of the designated area to provide 
evacuation and sheltering services for the affected

[[Page 40026]]

State or local government within the designated area. In this case, 
FEMA will directly reimburse the providing entity for eligible costs.
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    \1\ Mutual aid agreements where one State or local government 
reimburses another State or local government for services provided 
take many forms, including the Emergency Management Assistance 
Compact, Public Law 104-321.
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    This interim rule will eliminate the requirement that entities, 
such as States and local governments that provide evacuation and 
sheltering services outside of the designated areas, request and 
receive an emergency declaration from the President before they can 
recoup their eligible costs for those services.
    This interim rule will reduce costs and the administrative burden 
associated with managing Presidential emergency declarations. By 
eliminating the requirement for an emergency declaration, States will 
not have to activate the same level of emergency management plans, 
staff, and resources that are normally required to manage and 
coordinate operations with FEMA. Furthermore, FEMA will realize cost 
savings as it will not be required to activate and deploy a Federal 
Coordinating Officer and the requisite support staff and resources to 
manage its operations. Finally, FEMA and State governments will avoid 
the administrative requirements for processing an emergency declaration 
request or a request to add an area to an existing declaration. States 
will still have the option of requesting an emergency declaration when 
the effects of the event create conditions that warrant direct Federal 
support or assistance to the State providing evacuation and sheltering.
    Since hurricane season started on June 1, 2006, and because this 
rule removes restrictions now in place without adding any new 
restrictions, this interim rule takes effect immediately. This will 
allow FEMA to provide assistance for sheltering and evacuation 
operations, such that the providing entities can be reimbursed while 
eliminating the requirement that States request an emergency 
declaration from the President. However, FEMA still seeks comments on 
this rule, especially from State and local governmental entities that 
have provided or received evacuation and sheltering services in 
previously declared disasters and emergencies.
    FEMA is also aware of its responsibility to the taxpayers to ensure 
that this program is operated with the appropriate level of 
accountability. Therefore, FEMA particularly welcomes comments on 
whether this interim rule effectively strikes the balance of providing 
administrative flexibility to State and local governments while 
safeguarding taxpayer resources.

Administrative Procedure Act

    In general, FEMA publishes a rule for public comment before issuing 
a final rule under the Administrative Procedure Act (APA), 5 U.S.C. 
533, and 44 CFR 1.12. However, FEMA is issuing this interim rule 
immediately, and without prior notice and opportunity to comment 
pursuant section 5 U.S.C. 553(b). This provision authorizes an agency 
to issue a rule without prior notice and opportunity to comment when 
the agency for good cause finds that those procedures are 
``impracticable, unnecessary, or contrary to the public interest.'' Id. 
FEMA has determined that delaying implementation of this rule to await 
public notice and comment is unnecessary, impracticable, and contrary 
to the public interest for the following reasons:
    This interim rule is critically important in preparation for the 
2006 hurricane season, which officially started on June 1, 2006. The 
evacuation and sheltering operations following Hurricanes Katrina and 
Rita in 2005 clearly demonstrate that FEMA needs the ability to address 
evacuation and sheltering operations in a manner that eliminates 
unnecessary costs, administrative requirements, and resource 
deployment. Furthermore, under this rule emergency declaration requests 
for evacuation and sheltering are unnecessary, thereby eliminating a 
significant administrative and procedural burden for State governments 
and FEMA.
    This interim rule will permit those entities that are not located 
in a designated area to seek reimbursement without having to request an 
emergency declaration. Any delay in implementing this interim rule 
could affect the ability to provide these sheltering and evacuation 
services for the current hurricane season and have a severe impact on 
the health, safety, and welfare of the citizens of the affected areas. 
The ability to provide these services could very well be negatively 
affected because the administrative requirements removed by this rule 
take extra time to satisfy in situations where time is of the essence. 
Relieved of this burden, local jurisdictions and the Federal government 
will be free to direct their resources to more urgent tasks of 
evacuation and sheltering. Given that it is currently hurricane season, 
situations requiring such urgent action could arise in a matter of 
weeks or days, prior to a time when notice and comment rulemaking could 
be completed.
    In accordance with 5 U.S.C. 553(d)(3), FEMA has determined that 
delaying implementation of this rule to await public notice and comment 
is unnecessary, impracticable, and contrary to the public interest. 
Delay is impracticable and contrary to the public interest because 
hurricane season began on June 1, 2006, and because of the critical 
nature of providing evacuation and sheltering services. In the event of 
another catastrophic disaster, resources will be so stressed that 
freeing up any resources to use toward delivering services as permitted 
by this rule will provide significant benefits to the impacted public.
    FEMA also finds good cause, under 5 U.S.C. 553(d)(3), for this 
interim rule to take effect immediately. FEMA finds that, for the 
reasons previously discussed, it would be impracticable and contrary to 
the public interest to delay this rule taking effect due to the current 
hurricane season and the critical nature of providing evacuation and 
sheltering services. See also 5 U.S.C. 553(d)(1).
    Although FEMA has good cause to publish this rule without prior 
notice and comment, FEMA values public comments. As a result, FEMA is 
soliciting public comments on this interim rule and may revise the 
final rule in response to those comments. In particular FEMA invites 
comments from State and local governments who have both received and 
provided evacuation and sheltering services.

Executive Order 12866--Regulatory Planning and Review

    Under Executive Order 12866, 58 FR 51735, October 4, 1993, a 
``significant regulatory action''' is subject to Office of Management 
and Budget (OMB) review and the requirements of Executive Order 12866. 
Section 3(f) of 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.

[[Page 40027]]

    DHS and OMB have determined that this rule does not constitute a 
significant regulatory action under Executive Order 12866. This interim 
rule does not substantially change the amount of eligible grant funding 
under Presidential emergency or major disaster declarations. Rather, it 
alters the mechanism by which assistance for sheltering and evacuation 
operations is delivered.

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

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Unfunded Mandates Reform Act 
addresses actions that may result in the expenditure by a State, local, 
or tribal government, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year. The Unfunded Mandates Reform Act 
does not require an assessment in the case of an interim rule issued 
without prior notice and public comment. Nevertheless, FEMA does not 
expect this rule to result in such expenditure.

Executive Order 13132, Federalism

    This interim rule will not 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. It will not preempt any State laws. In 
accordance with section 6 of Executive Order 13132, FEMA determines 
that this rule will not have federalism implications sufficient to 
warrant the preparation of a federalism impact statement.

National Environmental Policy Act

    This interim rule falls within the exclusion category of 44 CFR 
10.8(d)(2)(ii), which addresses the preparation, revision, adoption of 
regulations, directives, manuals, and other guidance documents related 
to actions that qualify for categorical exclusions. Because no other 
extraordinary circumstances have been identified, this interim rule 
will not require the preparation of either an environmental assessment 
or an environmental impact statement as defined by the National 
Environmental Policy Act.

Paperwork Reduction Act of 1995

    This interim rule will not revise information collection 
requirements currently approved under the Paperwork Reduction Act of 
1995. Under the Paperwork Reduction Act, a person may not be penalized 
for failing to comply with an information collection that does not 
display a currently valid OMB control number. FEMA has determined that 
because the interim rule would not involve information collection, 
there is no need to address the Paperwork Reduction Act in the 
promulgation of the rule.

List of Subjects in 44 CFR Part 206

    Public Assistance, Work Eligibility.


0
Accordingly, for the reasons set forth in the preamble, FEMA amends 
part 206 of Chapter I of title 44 of the Code of Federal Regulations as 
follows:

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

0
1. Revise the authority citation for part 206 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. Revise Sec.  206.223(a)(2) to read as follows:


Sec.  206.223  General work eligibility.

    (a) * * *
    (2) Be located within a designated disaster area, except that 
sheltering and evacuation activities may be located outside the 
designated disaster area, and
* * * * *

    Dated: July 10, 2006.
R. David Paulison,
Director, Federal Emergency Management Agency, Department of Homeland 
Security.
[FR Doc. E6-11128 Filed 7-13-06; 8:45 am]
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