[Federal Register Volume 72, Number 210 (Wednesday, October 31, 2007)]
[Rules and Regulations]
[Pages 61552-61565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21264]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Parts 201, 204, and 206

[Docket ID FEMA-2007-0004]
RIN 1660-AA17


Hazard Mitigation Planning and Hazard Mitigation Grant Program

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

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SUMMARY: The Federal Emergency Management Agency (FEMA) is adopting as 
final, without substantive changes, interim rules that establish 
requirements for hazard mitigation planning and the Hazard Mitigation 
Grant Program (HMGP) pursuant to sections 322 and 323 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act.

DATES: This final rule is effective November 30, 2007.

FOR FURTHER INFORMATION CONTACT: Karen Helbrecht, Risk Analysis 
Division, Mitigation Directorate, 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:

I. Background

    This rulemaking finalizes, without substantive changes, interim 
rules implementing sections 322 and 323 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (Stafford Act) (42 U.S.C. 
5165), enacted by section 104 of the Disaster Mitigation Act of 2000 
(DMA 2000), (42 U.S.C. 5121 note). Section 322 requires, as a condition 
of receipt of federal hazard mitigation grant assistance, hazard 
mitigation planning and is implemented in the Emergency Management and 
Assistance regulations at 44 CFR part 201 (Mitigation Planning). 
Section 323 requires, as a condition of receipt of disaster loans or 
grants distributed under the Hazard Mitigation Grant Program (HMGP) 
that minimum repair and construction codes, specifications, and 
standards are followed. Section 323 is implemented at 44 CFR part 206 
(Federal Disaster Assistance for Disasters Declared On Or After 
November 23, 1988), Subpart N (Hazard Mitigation Grant Program).
    Parts 201 and 206 outline mitigation planning and hazard mitigation 
grant requirements, respectively, for State, Indian tribal, and local 
entities. To be eligible for FEMA mitigation and public assistance 
grant funds (except for emergency assistance), State, local, or Indian 
tribal governments must have a FEMA-approved hazard mitigation plan. 
All hazard mitigation plans must be submitted to FEMA for final review 
and approval. FEMA will review and comment on the plan within 45 days, 
whenever possible. Once approved, local plans are to be revised and 
resubmitted to FEMA every 5 years, State plans are to be revised and 
resubmitted to FEMA every 3 years, and Indian tribal governments may 
either apply directly to FEMA, thereby assuming the responsibilities of 
a State, or may apply through a State, thereby assuming the 
responsibilities of a local government.
    Additionally, for States that complete FEMA requirements for 
enhanced mitigation planning, the amount of HMGP funds available 
increases from 15 percent of the Federal share of disaster assistance 
for that event to 20 percent of the Federal share of disaster 
assistance for that event. Up to 7 percent of hazard mitigation grants 
may be used to develop State, tribal, and/or local mitigation planning 
activities outlined in 44 CFR part 201.
    There have been four interim rules (IRs) and one correction 
published in this rulemaking action. On February 26, 2002, FEMA 
published an IR at 67 FR 8844 implementing section 322 of the Stafford 
Act. This first IR addressed State mitigation planning, identified new 
local mitigation planning grant requirements, authorized HMGP funds for 
planning activities, and increased the amount of HMGP funds available 
to States that develop a comprehensive, enhanced mitigation plan.
    On October 1, 2002, FEMA published a second IR at 67 FR 61512. This 
IR amended the February 26, 2002, IR to

[[Page 61553]]

extend 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 from November 1, 2003 to November 1, 2004.
    On October 28, 2003, FEMA published a third IR at 68 FR 61368. This 
IR clarified that the November 1, 2003 effective date for the planning 
requirement applied only to Pre-Disaster Mitigation (PDM) grant funds 
awarded under any Notice of Availability of Funding Opportunity issued 
after that date. It also updated the mitigation planning requirements 
identified in 44 CFR part 204 (Fire Management Assistance Grant 
Program), as well as 44 CFR part 206, subpart H (Public Assistance 
Eligibility) to bring those sections into conformity with the existing 
planning requirements in 44 CFR part 201.
    On November 10, 2003, FEMA published a correcting amendment to the 
third IR at 68 FR 63738, correcting a paragraph reference.
    On September 13, 2004, FEMA published a fourth IR at 69 FR 55094. 
This IR provided a mechanism for Governors or Indian tribal leaders to 
request a 6 month extension of the plan approval deadline for State-
level mitigation plans, up to May 1, 2005. The IR also allowed 
mitigation planning grants provided through the PDM program to continue 
to be available to State, Indian tribal, and local governments after 
November 1, 2004. The IR also made technical amendments and adjusted 
the general major disaster allocation for HMGP from 15 percent to 7.5 
percent to be consistent with statutory mandates.
    With respect to docket management, the Regulatory Identifier Number 
(RIN) listed in the first two IRs was 3067-AD22. Since FEMA became a 
component of the Department of Homeland Security (DHS), FEMA's RINs 
were renumbered and 3067-AD22 became 1660-AA17.

II. Discussion of Public Comments

    FEMA received 17 public comments on the February 26, 2002 IR, and 3 
comments on the October 1, 2002 IR. FEMA received no comments on the 
October 28, 2003 or September 13, 2004 IRs. Fourteen State emergency 
management agencies, three organizations, two local governments, and 
one independent group submitted comments. The comments received, 
together with FEMA's response, are set forth below. The ``Multi-Hazard 
Mitigation Planning Guidance under DMA2000'' (also known as the 
Mitigation Planning ``Blue Book'') and the FEMA ``How-To'' series for 
Mitigation Planning (FEMA 386) are posted on the FEMA Web site (http://www.FEMA.gov/library). Unless otherwise stated, these are the documents 
referred to in FEMA's response when references to program policy or 
guidance are made.

Comments on the First Interim Rule

    Mitigation Planning Requirement Support; Timeline: Six commenters 
indicated support for the hazard mitigation planning process, agreeing 
that the process is necessary for effective, sustained mitigation 
programs. Thirteen commenters wrote that there was not enough time for 
State and local governments to comply with the planning requirements, 
and that the timeframe should either be extended or the requirements 
eased in over time.
    FEMA's response: FEMA recognized that not enough time was 
originally allowed to prepare the plans and issued another interim rule 
on October 1, 2002 that extended the planning requirement for State 
Mitigation Plans from November 1, 2003 to November 1, 2004. FEMA also 
extended the local planning requirement under the HMGP to November 1, 
2004. In addition, FEMA published an interim rule on September 13, 2004 
which provided a mechanism for Governors or Indian tribal leaders to 
request a 6 month extension of the effective date for State level 
mitigation plans (to May 1, 2005). All 50 States, the District of 
Columbia, and 6 Territories had approved hazard mitigation plans by May 
1, 2005. Currently, all 50 States, the District of Columbia, 7 
territories, and 33 Indian tribal governments have approved State level 
mitigation plans. In addition, over 11,000 jurisdictions now have 
approved local level mitigation plans. FEMA believes the timeframes to 
implement hazard mitigation plans have been sufficient.
    Technological Hazards: Five commenters wrote that plans should be 
required to address manmade or technological hazards.
    FEMA's response: Section 322 of the Stafford Act specifically 
requires mitigation planning for natural hazards, and FEMA decided that 
it was not appropriate to require planning for manmade or technological 
hazards. However, FEMA does support plans that address both natural and 
technological or manmade hazards. A State, Indian tribal, or local 
mitigation plan can be approved under the Stafford Act without 
consideration of technological hazards. However, FEMA's planning 
guidance can be used to assist in developing and evaluating plans that 
include manmade and technological hazards as part of a comprehensive 
mitigation strategy. More specifically, FEMA has developed a guidebook 
titled: ``Integrating Manmade Hazards into Mitigation Planning'' as 
part of the Planning ``How-To'' guidance series. This document is 
number seven in that series (FEMA 386-7).
    Number of hours necessary to prepare a plan: Two commenters wrote 
that FEMA underestimated the average number of hours necessary to 
prepare a local mitigation plan.
    FEMA's response: When FEMA published the February 26, 2002, interim 
rule, FEMA's original estimate of the number of hours necessary to 
prepare a local mitigation plan was based on planning done under the 
Flood Mitigation Assistance (FMA) program. FEMA published an estimate 
of 300 hours per plan to develop State or local mitigation plans under 
part 201. After several years of implementing the planning regulations, 
this estimate was adjusted to 2,080 hours to develop new State, local, 
or Indian tribal plans and 320 hours for plan updates to more 
accurately reflect the amount of time States and local communities 
actually spent in developing new plans or updating plans to meet the 3- 
or 5-year update requirements.
    Level of information required to develop plans: Six commenters 
wrote that the level of detail required to develop local mitigation 
plans may be unreasonable, that the costs necessary to develop the 
plans result in an unfunded mandate, and that communities will be 
reluctant to develop plans because of a fear of liability in the event 
that problems are identified and mitigation measures are not 
implemented.
    FEMA's response: The February 26, 2002 interim rule established new 
requirements for hazard mitigation planning. FEMA worked to ensure that 
appropriate guidance was developed for those responsible for 
developing, evaluating, and reviewing the plans. FEMA believes that the 
level of detail is reasonable and necessary to ensure that the 
statutory purposes of the mitigation planning provision are met and 
result in meaningful and effective mitigation planning. FEMA hosted a 
series of workshops in both 2002 and 2003 at each FEMA Region at which 
every State was represented. These workshops provided an opportunity to 
clarify the planning requirements identified in the regulation and to 
answer questions regarding these requirements. During the workshops, 
FEMA clarified the level of information required by the regulations in 
developing risk assessments for local mitigation plans. FEMA also 
issued policy related to the

[[Page 61554]]

possible lack of hazard specific risk information, which allows 
planners to use the ``best available information'' that is currently 
available in doing the risk assessment, and document how that 
information would be improved over time.
    FEMA recognized that many jurisdictions did not budget for the 
costs associated with the development of mitigation planning. FEMA made 
an effort to ensure that the existing mitigation grant programs (HMGP, 
PDM, and FMA) were available to assist as many jurisdictions as 
possible. Through these programs, FEMA has approved over 1,400 planning 
grants between February 2002 and March 2007 with an obligated Federal 
share of over $157,000,000. As stated above, all 50 States, the 
District of Columbia, 7 territories, and 33 Indian tribal governments 
have approved State level mitigation plans. In addition, over 11,000 
jurisdictions have approved local level mitigation plans. In fact, over 
50 percent of the population of the United States is covered by an 
approved local level mitigation plan. Since these regulations were 
originally published in 2002, over 1,400 planning grants have been 
awarded and over 14,000 jurisdictions are covered by an approved 
mitigation plan. Due to the volume of plans being developed and 
approved, it appears that the issue of liability has not been a 
significant reason for communities to not undertake development of a 
mitigation plan.
    Significant regulatory action: Two commenters disagreed with FEMA's 
conclusion that the rule is not an economically significant regulatory 
action because the nationwide cost projection of less than $100 million 
annually to implement the rule is not realistic.
    FEMA's response: FEMA disagrees. For the reasons cited in the 
Executive Order 12866 section below, FEMA asserts that this is not an 
economically significant regulatory action. The annual impact of this 
rule on the economy is approximately $46 million. This regulation's 
effect on the economy is below the $100 million threshold to qualify as 
an economically significant action. Furthermore, this final rule makes 
no significant change to the interim rules which have been in place, 
and the regulated industry has been following, since 2002.
    Coordination among FEMA Regions: Two commenters wrote that 
coordination within the 10 FEMA Regions is needed to ensure consistency 
for plan review and other aspects relating to regulation 
implementation.
    FEMA's response: FEMA has worked to ensure that the regulation has 
been implemented in a fair and consistent manner. The agency has held 
several workshops, meetings, and training sessions to bring together 
FEMA staff and State representatives to identify areas of concern and 
to develop policy and guidance to resolve these issues. For example, a 
FEMA course entitled ``Mitigation Plan Review'' has been delivered at 
FEMA's Emergency Management Institute (EMI) in Emmitsburg, Maryland, 
and in almost all FEMA Regions, as well as in many States. FEMA will 
continue to work towards a nationally consistent application of the 
planning requirements.
    Flexibility in implementing the requirements: Four commenters wrote 
that it is necessary for hazard mitigation plans and the hazard 
mitigation planning process to be flexible to meet the needs of diverse 
communities, to address mitigation issues based on actual 
circumstances, and to meet post-disaster mitigation needs.
    FEMA's response: FEMA understands the commenters' concerns. To 
emphasize the importance and flexibility of the planning process, FEMA 
has taken, to the extent possible, a ``performance standard'' approach 
rather than a ``prescriptive'' approach to the planning requirements. 
In other words, hazard mitigation planning requirements are designed to 
generally identify what should be done in the process and documented in 
the plan, rather than specify exactly how it should be done. This 
approach recognizes and appreciates the inherent differences that exist 
among State, Indian tribal, and local governments with respect to size, 
resources, capability, and vulnerability. In addition, FEMA recognizes 
that flexibility is necessary in the post-disaster environment, and 
that individually-tailored mitigation plans can be very useful tools in 
the recovery process.
    Benefit-cost and planning: Eight commenters wrote and asked what 
level of effort is required to prioritize cost-effective projects in 
the State level plan and in the local level action plan where 
``benefits are maximized according to a cost benefit review of the 
proposed projects and their associated costs.''
    FEMA's response: Local mitigation plans do not require a formal 
benefit-cost calculation to be included within the plan document. 
However, one consideration in deciding what type of mitigation 
action(s) to pursue is an economic assessment of the particular action. 
This (and other considerations) should be debated and discussed as part 
of the planning team's and/or larger community's decision-making 
process. A possible result of these local discussions could be the 
decision to complete a formal benefit-cost evaluation of the various 
mitigation approaches that are technically appropriate for the 
situation. However, this is not required to be included in the plan. It 
is sufficient if economic considerations are summarized in the plan 
document as part of the comprehensive range of specific mitigation 
actions of projects being considered. Once funding is sought for the 
particular mitigation action, a detailed benefit-cost calculation would 
be required as described under the various grant program regulations. A 
similar evaluation should be done as part of the State planning 
process. The plan is required to document the process by which projects 
and activities will be prioritized and ranked, and this process must 
include cost effectiveness. In addition, FEMA intends to release 
additional guidance to help clarify the requirements.
    Definition of Critical facility: Two commenters requested a 
definition of the term ``critical facility.''
    FEMA's response: The list of assets that are most important to 
protect, as well as the criticality of any given facility, can vary 
widely from community-to-community. Thus, there is no universal 
definition of a critical facility, nor is one associated with FEMA's 
planning requirements. For planning purposes, a jurisdiction should 
determine criticality based on the relative importance of its various 
assets for the delivery of vital services, the protection of special 
populations, and other important functions. FEMA's Mitigation Planning 
How-To Guide, ``Understanding Your Risks: Identifying Hazards and 
Estimating Losses'' (FEMA 386-2) provides guidance on how to identify 
critical facilities. Based on a hazard-by-hazard identification of 
facilities that may be at risk, the Guide's emphasis on determining 
priorities for inventory data collection will help planners identify 
assets that are most critical to the jurisdiction. The companion 
publication ``Integrating Manmade Hazards into Mitigation Planning'' 
(FEMA 386-7) details how asset inventory can be tailored to focus on 
high-risk facilities such as critical infrastructures and key 
resources. In addition, the inventory information available with FEMA's 
HAZUS-MH loss estimation software can assist in identifying critical 
facilities. HAZUS-MH databases include information on essential 
facilities such as hospitals,

[[Page 61555]]

police and fire stations, emergency operations centers, shelters, and 
schools; transportation systems; utility lifelines; high potential loss 
facilities such as potable water, wastewater, oil, natural gas, 
electric power, and communication systems; and hazardous material 
facilities.
    Other sources provide additional guidance on identifying facilities 
that may be critical. FEMA's ``Public Assistance Guide'' (FEMA 322) 
states that ``[c]ritical facilities are those that serve as emergency 
shelters; contain occupants who are not sufficiently mobile to avoid 
death or injury, such as hospitals; house emergency operation or data 
storage that may become lost or inoperative; are generating plants and 
principal points of utility lines; or that produce, use, or store 
volatile, flammable, explosive, toxic, or water reactive materials.'' 
The related regulation at Sec.  206.226, Restoration of damaged 
facilities, refers to facilities that provide critical services, 
``which include power, water * * * sewer services, wastewater 
treatment, communications, emergency medical care, fire department 
services, emergency rescue, and nursing homes.'' Further, the National 
Infrastructure Protection Plan (NIPP), issued in 2006, provides a 
framework for a national strategy that includes State, local, Tribal 
and regional identification of risks and the protection of ``critical 
infrastructure'' and ``key resources.'' Critical Infrastructure is 
defined in the NIPP as ``[a]ssets, systems, and networks, whether 
physical or virtual, so vital to the United States that the incapacity 
or destruction of such assets, systems, or networks would have a 
debilitating impact on security, national economic security, public 
health or safety, or any combination of those matters,'' and Key 
Resources is defined as ``publicly or privately controlled resources 
essential to the minimal operations of the economy and government.'' 
Mitigation planning is identified in the NIPP as an activity that can 
help achieve protection of these assets.
    The hazard mitigation plan should provide enough information 
regarding critical facilities to enable the jurisdiction to identify 
and prioritize appropriate mitigation actions. However, some 
information may be deemed highly sensitive and should not be made 
available to the public. Such information that the jurisdiction 
considers sensitive should be treated as an addendum to the mitigation 
plan so that it is still a part of the plan, but access can be 
controlled. For more information on protecting sensitive information 
See, ``Integrating Manmade Hazards into Mitigation Planning'' (FEMA 
386-7).
    FEMA notes that in Sec.  201.4(c)(2)(ii), the regulation contains 
the phrase ``State owned critical or operated facilities,'' when in 
fact FEMA intended to use the phrase ``State owned or operated critical 
facilities.'' This typographical error is corrected in this final rule.
    Coordination of FEMA's planning requirements: Four commenters 
requested that FEMA coordinate its planning requirements, especially 
between FMA and the new regulations at part 201.
    FEMA's response: It was FEMA's intent to create a single local 
mitigation plan requirement in publishing the planning regulations at 
part 201. Since part 201 has been in effect, FEMA has realized that 
there are few areas of difference between the FMA plans and the part 
201 plans. FEMA plans to revise part 201 to clarify that part 201 
contains FEMA's mitigation plan requirements for all mitigation grant 
programs.
    Plan adoption: Three commenters asked for clarification on how the 
State plan is ``formally adopted.'' One comment specifically requested 
that the plan be approved by the ``Governor's Authorized 
Representative.''
    FEMA's response: An appropriate body in the State must adopt the 
plan. Depending on the State's established procedures, this could be 
the State Legislature or the Governor. States with hazard mitigation 
teams or councils may choose to use these bodies to adopt the plan. At 
a minimum, the plan must be endorsed by the director of the State 
agency responsible for preparing and implementing the plan, as well as 
the heads of other agencies with primary implementation 
responsibilities. The plan must include a copy of the resolution of 
adoption, indicating the State's formal adoption of the plan. It is 
recommended that the plan be formally adopted after FEMA has reviewed 
the plan and determined that it meets all the other requirements of 
part 201.
    Consultation with Indian tribal governments: One commenter wrote 
that FEMA did not fulfill its requirement to consult with Indian tribal 
governments prior to issuing this rule.
    FEMA's response: Before FEMA developed the interim rule, the agency 
met with representatives from State and local governments and the 
Bureau of Indian Affairs to discuss the new planning requirements of 
section 322 of the Stafford Act. The same opportunity for comment was 
offered to all parties. FEMA received valuable input from all 
attendees, which helped FEMA to develop the interim rule. Also, since 
FEMA published the interim rule, it has coordinated more directly with 
Indian tribal governments, and with the organizations that represent 
them. For example, in conjunction with the National Congress of 
American Indians, FEMA hosted a Tribal Mitigation Conference in October 
2002 at the Ak-Chin Indian Community, Arizona. This conference provided 
FEMA with an opportunity to better understand its responsibilities 
relating to Indian tribal governments and to build a working 
relationship with many of the Indian tribal representatives. A follow-
up conference was held at the Salish Kootenai Community, Montana in 
August 2003. As a direct result of these conferences, FEMA developed an 
EMI resident course titled ``Mitigation for Tribal Officials.'' This 
course provides a direct opportunity for coordination and information 
sharing between Indian tribal representatives and FEMA, resulting in 
refinements to FEMA's Indian tribal policy and guidance.
    Indian tribal governments and mitigation planning: Three commenters 
wrote that the interim rule contributes to a loss of sovereignty of 
Indian tribal governments.
    FEMA's response: FEMA sees no impact on the sovereignty of Indian 
tribal governments as a result of these regulations. FEMA recognizes 
that Native American Tribes are sovereign States. Although Sec.  201.2 
states that Indian tribal governments who chose to act as subgrantees 
are accountable to the State grantee, Indian tribal governments are not 
required to act as subgrantees. Furthermore, in Sec.  201.3(e), Indian 
tribal governments may interact directly with the Federal government, 
or may choose to apply through a State as a subgrantee. This allows for 
an Indian tribal government to have the flexibility of either applying 
directly to FEMA for mitigation assistance, or, where the Indian tribal 
government has a working relationship with a State, apply through the 
State as a subgrantee. Some Indian tribal governments have participated 
on local level multi-jurisdictional plans, which have allowed them to 
participate in FEMA's mitigation programs while they gain expertise and 
management capability. It is entirely at the discretion of the Indian 
tribal government and the State whether funding should be sought by 
Indian tribal governments directly from FEMA or through the State.
    Edits to Sec.  206.434(d): One commenter requested that in Sec.  
206.434(d), FEMA make available 7 percent of any unspent HMGP funds 
currently available to the

[[Page 61556]]

States regardless of declaration date, and remove the word ``tribal.''
    FEMA's response: Section 322 of the Stafford Act (42 U.S.C. 5165) 
limits 7 percent of the HMGP funds to be spent on mitigation planning, 
and since Indian tribal governments are eligible for mitigation 
funding, FEMA is unable to make them ineligible for HMGP planning 
grants.
    Technical assistance: One commenter wrote that mitigation planning 
has great public value for Indian tribes; however, Indian tribes do not 
have the financial resources or the technical capacity to undertake 
such exercises, and that the rule seems to overlook the role of 
technical assistance.
    FEMA's response: FEMA believes that technical assistance is 
critical to successful mitigation at all levels of government. FEMA has 
been working to technically assist all Federally-recognized Indian 
tribal governments regarding the availability of grant funding, 
training opportunities, as well as program requirements.
    The definition of ``Indian tribe:'' One commenter wrote that the 
term ``Indian tribe'' should be clarified to identify if FEMA means all 
Indian tribes, just Federally-recognized Indian tribes, or those tribes 
with either Federal or State recognition.
    FEMA's response: The term ``Indian tribe'' means all Federally 
recognized Indian tribes. Section 201.2 includes the definition for 
Indian tribal government: ``* * * any Federally recognized governing 
body of an Indian or Alaska Native tribe, band, nation, pueblo, 
village, or community that the Secretary of Interior acknowledges to 
exist as an Indian tribe'' under the Federally Recognized Indian Tribe 
List Act of 1994, 25 U.S.C. 479a.
    Enhanced State Mitigation Plans: Six commenters asked for 
additional clarification regarding Enhanced State Mitigation Plan 
requirements.
    FEMA's response: In July 2002, FEMA provided guidance titled 
``Multi-Hazard Mitigation Planning Guidance under the Disaster 
Mitigation Act of 2000'' on the development of Enhanced State 
Mitigation Plans, FEMA revised that guidance in March 2004. These 
documents are available through FEMA regional offices, and the 2004 
guidance, which retains the 2002 guidance but includes more 
explanations and examples, is available on the FEMA Web site at http://www.fema.gov/plan/mitplanning/index.shtm. These documents provide 
guidance on implementing each section of the enhanced plan 
requirements. FEMA established the criteria for enhanced plans to 
provide a more qualitative and less quantitative basis for evaluating 
the plans. In addition, FEMA's policy for reviewing enhanced plans has 
been to establish a panel consisting of two State representatives, 
staff from two FEMA Regions, and two FEMA Headquarters staff to review 
and evaluate the plan. This practice makes the plan review process more 
transparent and fair and provides States with an opportunity to see how 
the process works. As of August 2007, there are 9 States with approved 
Enhanced Mitigation Plans.
    Confusion regarding Sec.  201.5(b)(4): Commenters wrote that there 
is confusion regarding Sec.  201.5(b)(4), which states: ``Demonstration 
that the State is committed to a comprehensive state mitigation 
program, which might include any of the following.''
    FEMA's response: The list of items in Sec.  201.5(b)(4)(i) through 
(vi) are provided as examples of that commitment, and are not expected 
to be addressed in every plan.
    State ability to satisfy NEPA requirements: One commenter wrote 
that States should not be required to ensure that all environmental 
reviews (categorical exclusions, environmental impact statements, etc.) 
are completed because they are incapable of performing an environmental 
assessment or environmental impact statement.
    FEMA's response: Section 201.5(b)(2)(iii)(B) requires States to 
prepare and submit accurate environmental reviews and benefit-cost 
analyses. FEMA concurs that it is FEMA's responsibility to develop the 
environmental documentation, in compliance with the National 
Environmental Protection Act (NEPA). However, FEMA's position is that 
the State is responsible for and is capable of ensuring that all 
appropriate information necessary to prepare the NEPA documentation is 
provided with project applications.
    Documentation of capability to manage HMGP: One commenter expressed 
concern regarding how the Enhanced State Mitigation Plan requirement in 
Sec.  201.5(b)(2)(iii), ``[d]emonstration that the State has the 
capability to effectively manage the HMGP as well as other mitigation 
grant programs, including a record of the following,'' would be 
implemented.
    FEMA's response: FEMA recognized that it would be difficult for 
States to provide documentation of their capability in this section, so 
FEMA developed a policy that allows the Region and State to work 
together to complete the documentation for this requirement. This 
policy appears in the ``Multi-Hazard Mitigation Planning Guidance under 
DMA2000, Part 2 Enhanced State Mitigation Plans, Program Management 
Capability,'' which can be found at: http://www.fema.gov/library. For 
the initial Enhanced Plan approval, a State would be evaluated on their 
capability to effectively manage the HMGP as well as other mitigation 
grant programs over the previous four quarters. For subsequent plan 
update approvals, the State would be evaluated based on demonstrated 
capability for the full 3 years the plan had been in effect.
    Private Nonprofit entities: One commenter asked for more 
clarification regarding the planning requirements for private nonprofit 
entities (PNPs).
    FEMA's response: Private nonprofit (PNP) organizations, especially 
those that may be eligible applicants for hazard mitigation projects 
under 44 CFR part 206, should participate in the development of the 
local mitigation plan. If a PNP has fully participated in the 
development and review of the local plan, it is not necessary for the 
PNP to approve/adopt the plan, as long as it is adopted by the local 
jurisdiction. PNP applicants for HMGP project grants do not need to 
have an approved multi-hazard mitigation plan in order to receive HMGP 
project funds. However, FEMA has developed a policy for PNP project 
applications; in order for the applications to be approved, the 
jurisdiction in which the project is located should have an approved 
plan, and the project must be consistent with the plan's goals and 
objectives. For FEMA's PDM program, PNPs are not eligible 
subapplicants, but an eligible local government could apply for a grant 
to mitigate a PNP facility.
    Rural Electric Cooperatives: One commenter wrote that a discrepancy 
exists regarding rural electric cooperatives. The commenter wrote that 
public power States with electrical services provided by districts 
administered by elected officials cover multiple local jurisdictions. 
These types of cooperatives do not conform to the definition of local 
jurisdictions and potentially multiple districts would have to be 
included in every local plan to qualify for future funding. This 
problem must be addressed in the rule.
    FEMA's response: Multi-jurisdictional utility PNPs, including Rural 
Electric Cooperatives (RECs), which sometimes span several counties, 
are eligible subapplicants for assistance under HMGP. Their 
infrastructure often sustains damage from severe snow and ice storms, 
and they frequently seek HMGP funding after disaster declarations from 
these storms to mitigate future similar losses. RECs are

[[Page 61557]]

treated as PNPs for the purposes of disaster assistance provided by 
FEMA under the Stafford Act. They are not considered local governments. 
This distinction is important, because current regulations provide only 
for local governments, not PNPs, to meet the planning requirement by 
submitting a local mitigation plan (LMP) to FEMA. For PNPs such as RECs 
or other multi-jurisdictional utilities, FEMA is identifying two ways 
in which RECs may meet the mitigation planning requirements to ensure 
that projects funded by HMGP are consistent with the mitigation 
strategies of the State, Tribal, and/or local jurisdiction in which the 
project is located: the local jurisdiction(s) within which the REC 
mitigation project is located must have FEMA approved LMPs, or the FEMA 
approved State Mitigation Plan must address RECs. Further guidance is 
available on this topic on FEMA's Web site at http://www.fema.gov.
    Small and impoverished communities: One commenter wrote that FEMA 
should identify criteria it will use to determine if a State identified 
community qualifies as ``small and impoverished.''
    FEMA's response: The term ``small and impoverished communities'' is 
defined in Sec.  201.2. This definition combines the term in section 
203 of the Stafford Act, as amended by the Disaster Mitigation Act of 
2000, with criteria for ``economically disadvantaged'' communities as 
used by the U.S. Environmental Protection Agency under their National 
Watershed Initiative. Communities can compare their per capita income 
to the Bureau of Economic Analysis's per capita income for the U.S. as 
a whole, issued annually; local unemployment data can be compared with 
the national unemployment rate according to the U.S. Bureau of Labor 
Statistics, also issued annually. Further guidance on FEMA's criteria 
for determining small and impoverished communities can be found on 
pages 1-10 of the FY 2007 Pre-Disaster Mitigation Program Guidance, 
which can be found at http://www.fema.gov/library/viewRecord.do?id=2095.
    State authority: Two commenters wrote that FEMA was taking away the 
State's authority to administer and manage mitigation programs. The 
commenters wrote that States should be able to approve local mitigation 
plans and prioritize mitigation funding decisions.
    FEMA's response: FEMA believes it is important to establish a 
national standard for local mitigation plans and to ensure that local 
jurisdictions are being evaluated based on the same criteria across the 
Nation. States may introduce additional criteria for their localities, 
but FEMA may only enforce the requirements of this rule. FEMA has 
worked to establish a solid baseline for mitigation plans, especially 
at the local level, and FEMA continues to work to ensure that plans are 
being evaluated in a fair and consistent manner. FEMA believes that the 
planning process supports the State's authority to administer the grant 
programs. By engaging in State-established planning processes, funding 
decisions can be made based on State-developed mitigation strategies.
    Listening session: One commenter wrote and questioned the value of 
listening sessions that were held to gather comments and suggestions on 
implementing the planning requirements.
    FEMA's response: The intent of the listening sessions was to gain 
input at an early stage from State and local officials, as well as 
other Federal agencies, for FEMA to consider as it began to develop 
regulations to implement the planning requirements. Much of the 
information generated by the listening session was very useful to FEMA 
in developing these regulations.
    Definition of local government: One commenter wrote to request the 
word ``community'' be used rather than ``jurisdiction'' regarding the 
terminology used to discuss the local entity developing the local level 
plan.
    FEMA's response: FEMA uses the term ``jurisdiction'' rather than 
``community'' since the term ``jurisdiction'' is broader than the term 
``community.'' A jurisdiction could be a county, city, township, 
parish, or other local entity. Furthermore, within FEMA, the term 
``community'' is closely linked to the local entity that implements the 
National Flood Insurance Program.
    Local plan eligibility: One commenter wrote that local governments 
should be able to receive assistance if the local jurisdiction has an 
approved plan, even if the State does not have an approved plan.
    FEMA's response: The State is responsible for administering FEMA's 
programs. The requirement for a State plan as a condition for local 
governments to receive non-emergency disaster assistance was originally 
established through section 409 of the Stafford Act (42 U.S.C. 5176). 
However, section 409 was repealed by the Disaster Mitigation Act of 
2000. In addition, every State has met the planning deadline thus far, 
and FEMA is confident that States will continue to meet the planning 
deadlines, thus ensuring that local plans can be approved.
    Availability of post-disaster assistance: Two commenters wrote to 
ask how post-disaster assistance would be affected by the lack of an 
approved State Mitigation Plan by the established deadline.
    FEMA's response: The post-disaster assistance that would be 
withheld by the lack of an approved State Mitigation Plan includes 
Public Assistance, categories C-G, HMGP, and Fire Management 
Assistance. As stated above, however, every State has thus far met the 
planning deadlines, so no post-disaster assistance has been withheld 
due to a State's lack of an established State plan.
    State planning: One commenter asked what the purpose of the State 
mitigation planning process is, how the term ``effectiveness'' will be 
measured, how the ``factual basis'' for proposed activities will be 
established, how State laws should be evaluated, and stated that the 
requirement that the plan contain an overview of ``all natural 
hazards'' that can affect the State is too comprehensive.
    FEMA's response: FEMA's approach to the planning process is to 
establish a mechanism for State and local governments to make informed 
decisions regarding their risk reduction activities rather than 
creating a prescriptive list of requirements. Section 201.4(a) 
describes the purpose of the State Mitigation Plan: ``[t]he 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.'' 
FEMA looks to the State to establish baselines by which the State will 
measure the effectiveness of the programs and activities that it has 
identified that reduce its risks. FEMA is evaluating the effectiveness 
of plans based on how well the States document the planning process. 
The requirement regarding the ``factual basis'' for activities means 
that the State should be developing its mitigation strategy based on 
the facts (risks and vulnerabilities) established in its risk 
assessment. State laws would be evaluated based on the criteria 
established by the State to do so. Regarding the requirement that the 
plan contain overviews of all natural hazards, FEMA requires the State 
to identify all natural hazards that can affect the State, but only to 
evaluate those that pose the greatest risk (as determined by the 
State). This distinction ensures that natural hazards are not 
overlooked and can assist in future evaluations of the

[[Page 61558]]

State's risk, by summarizing the process used to conduct the risk 
assessment.
    Generic plans: One commenter wrote that the required elements of a 
mitigation plan, such as listing facilities located in hazard areas or 
estimating the potential dollar losses to vulnerable structures, may 
produce generic plans or lists that are simply trying to comply with 
specifications rather than truly reducing risk.
    FEMA's response: The type of information indicated above is 
essential to developing a thorough risk assessment. It is not FEMA's 
intent to require plans that merely list information, but, rather, have 
States, Indian tribes, and local jurisdictions carefully analyze 
information to better establish their risks and vulnerabilities. FEMA 
will continue to provide guidance regarding the level of detail 
necessary in the planning process, and to ensure that the process 
remains relevant to those who develop plans.
    Public Assistance: Two commenters wrote that there should be a link 
between the mitigation plan and mitigation activities that might be 
funded through FEMA's Public Assistance program.
    FEMA's response: FEMA concurs with these comments, and continues to 
coordinate within the agency to ensure that our programs and 
requirements are implemented as consistently as possible.
    Link between State and local plans: Four comments requested 
clarification of the requirement that State Mitigation Plans be linked 
to local mitigation plans.
    FEMA's response: Section 201.4(c)(4) requires that State Mitigation 
Plans describe the processes for incorporating local planning efforts 
into the statewide plan and prioritizing assistance to local 
jurisdictions. The intent of this section is to ensure that the State 
mitigation strategies and priorities can be evaluated and incorporated 
into the local mitigation plans, as appropriate. In addition, risk 
assessment and other data used in the development of the State plan can 
be used by local jurisdictions developing their plans, and more site 
specific data developed in the local mitigation plans may be useful to 
the State as it progresses in the development of any updated State 
Mitigation Plans. When the State plans were originally prepared under 
this regulation, there were few local plans that met FEMA's planning 
requirement under part 201. Therefore, States had limited local 
information on which to base their plans. Since then, many local plans 
have been approved and adopted, providing States with the opportunity 
to better coordinate with local jurisdictions.
    Types of resources for Local Mitigation Planning: Two commenters 
requested additional information regarding the types of resources that 
are to be used to obtain information and data for the risk assessment 
and mitigation strategy in local mitigation plans.
    FEMA's response: The information used to develop the local 
mitigation plans will be driven by local needs, State priorities, and 
the availability of information and data. Our guidance has been for 
jurisdictions to do a reasonable search for risk assessment 
information, to use the ``best available data'' for the analysis, and 
to indicate how any lack of information or data will be addressed (if 
at all) in future plan updates. The mitigation strategy should be 
vetted through the process established by the local mitigation planning 
team, which should include a public involvement process.
    Use of HMGP Planning Funds: One commenter asked whether the 7 
percent HMGP planning funding can be used for plan amendments at the 
local level.
    FEMA's response: HMGP planning funds can be used to update or amend 
mitigation plans.
    Privacy concerns: One comment stated that while State and local 
mitigation plans should identify factors that will be considered when 
developing specific projects, the plan should not be required to 
identify specific projects or properties, because doing so could affect 
privacy concerns and the perceived impact on land values.
    FEMA's response: FEMA agrees that specific property addresses 
should not be included in the plan; however, it may be appropriate to 
identify project areas for certain risk mitigation activities. For 
example, as part of a mitigation strategy, a list of properties or 
areas being considered for acquisition should be prepared, but the 
specifics regarding property addresses should remain within project 
applications and not in the plan document itself.
    Definition of mitigation: Two commenters wrote that the term 
``sustained'' must be clarified to avoid confusion as to what 
specifically is appropriately termed hazard mitigation and what will be 
allowed for funding under FEMA programs. The commenters also noted that 
the term is at odds with the definition found in Sec.  206.2(14).
    FEMA's response: As the commenters note, Sec.  206.2(14)'s 
definition of ``Hazard Mitigation'' is any cost-effective measure which 
will reduce the potential for damage to a facility from a disaster 
event, while Sec.  201.2's definition of ``Hazard Mitigation'' is any 
sustained action taken to reduce or eliminate the long-term risk to 
human life and property from hazards. The difference between the part 
201 and part 206 definitions of hazard mitigation is that ``sustained'' 
is related to mitigation planning under part 201, and ``cost-effective 
measures'' is related to grant activities under part 206. The 
definition for hazard mitigation found in part 201 is meant to allow 
State, tribal, and local officials latitude to evaluate a wide range of 
options that might reduce risk; the term ``sustained'' was added to the 
definition in part 201 to make clear that mitigation activities should 
be a continuous undertaking, and is consistent with the long-term 
explanation of hazard mitigation projects in part 206.
    Definition of local government: One commenter wrote that the 
definition of local government was too broad, covering subdivisions of 
political jurisdictions, and that it is important to look at the 
community as a whole.
    FEMA's response: FEMA understands the commenter's concern. However, 
section 102 of the Stafford Act (42 U.S.C. 5122) contains a definition 
for ``local government,'' and this is the definition that FEMA closely 
follows. FEMA agrees that it is important to look at the whole 
community. FEMA developed guidance titled ``Multi-Jurisdictional 
Mitigation Planning,'' (FEMA 386-8), which assists jurisdictions in 
developing plans that can look at the whole community. A plan developed 
for a larger community can be adopted by sub-jurisdictions (as long as 
those sub-jurisdictions participated in the process), which ensures a 
sub-jurisdiction's eligibility for mitigation grant projects.
    Assistance affected by lack of plan: One commenter wrote that 
Sec. Sec.  201.4(a) and 201.6(a)(1) are inconsistent with each other, 
as the former eliminates eligibility for all assistance other than 
emergency measures for all local governments in a State, if the State 
fails to secure approval of a plan, while the latter only eliminates 
eligibility for funding if local entities fail to complete a plan. 
Since the State is dependent upon local mitigation planning efforts for 
data, the two sections should be consistent.
    FEMA's response: The State Mitigation Plan is required in order for 
non-emergency disaster assistance, as well as mitigation grants, to be 
made available throughout the State. The local mitigation plan is 
required in order to receive mitigation project grants. Other

[[Page 61559]]

non-emergency assistance is not affected by the lack of a local 
mitigation plan. FEMA recognizes that the initial State planning 
efforts will be limited by the lack of local mitigation plans, but 
updated State plans will be able to incorporate local level data as it 
becomes available.
    ``Ongoing State planning efforts:'' One commenter asked what is 
meant by ``ongoing state planning efforts'' in Sec.  201.4(b).
    FEMA's response: Section 201.4(b) states that an effective planning 
process is essential in developing and maintaining a good standard 
State Mitigation Plan. ``Ongoing state planning efforts'' means that 
the process should include continued coordination to the extent 
possible with other State agencies, appropriate Federal agencies, and 
additional interested groups. It is up to the State to determine what 
other planning processes might be affected by the mitigation planning 
process.
    Vulnerability Assessments: One comment stated Sec.  201.4(c)(2)(ii) 
would require the States to conduct vulnerability assessments based on 
local assessments of hazards and risk, but that it is not clear if the 
States would have to abandon their existing Hazard and Vulnerability 
Analysis methodology. Also, these risk analyses would have to be based 
on local participation, which cannot be mandated in many States.
    FEMA's response: FEMA does not intend for any State to abandon 
their existing Hazard and Vulnerability Analysis methodologies. The 
State Mitigation Plans should document the process used to gather and 
analyze the data, and explain the methodology in determining 
vulnerability assessments. This documentation of previous hazard events 
and potential future hazard events will ensure that current and future 
users of the mitigation plan will be able to understand the basis for 
the decisions made in the plan. FEMA agrees that local participation in 
the planning process cannot be mandated, but where there are local 
plans, the available data and information should be used.
    State risk assessment: One commenter questioned the level of detail 
required in the State risk assessment. The commenter stated that 
requiring the State Hazard Mitigation Plan to contain the potential 
losses to each structure, facility, or infrastructure identified as a 
risk by local governments for being located in an identified hazard 
area is redundant of the local mandates.
    FEMA's response: Section 201.4 requires the State plan to provide 
an overview and analysis of potential losses to identified vulnerable 
structures based on estimates provided in local risk assessments. The 
intent is to look more broadly on risk and vulnerability than can be 
done at a local level. The local mitigation plans provide the necessary 
detail, but the State Mitigation Plan is where the data can be 
evaluated and summarized to determine overall vulnerabilities and to 
identify areas that may need additional assistance.
    State mitigation strategy: One commenter questioned the level of 
detail required in the mitigation strategy section of the State 
Mitigation Plan. The commenter wrote that States may not be able to 
properly represent local actions and projects with respect to the 
elements in Sec.  201.4(c)(3)(iii) because it would be quite costly to 
fully incorporate data for every local plan.
    FEMA's response: Section 201.4 (c)(3)(iii) is based on the risk 
assessment portion of the plan and includes actions that have been 
identified through the planning process. These actions may be statewide 
in nature (such as adopting statewide building codes or establishing a 
multi-agency grant evaluation panel). It is not intended that every 
activity or action identified in local mitigation plans would be 
specifically addressed in the State plan. The State plan, through the 
description of the planning process, the establishment of the 
mitigation strategy, and the plan maintenance process, will dictate how 
future plan updates will be evaluated. FEMA will look at what was 
completed, deleted, or deferred from the plan and the justification for 
the process.
    Intense development pressure: One comment asked for clarification 
of the term ``intense development pressure.''
    FEMA's response: FEMA believes that States can reasonably interpret 
and apply the term ``intense development pressure.''
    Prioritizing HMGP funds: One commenter requested that FEMA should 
consider allowing each State to prioritize the use of HMGP funds 
generated by a disaster based on whether the community has a multi-
hazard plan.
    FEMA's response: FEMA agrees with this comment. Program 
regulations, policy, and guidance allow States to prioritize the use of 
HMGP funds.
    Mandatory planning: One commenter wrote that mitigation planning is 
a mandatory requirement, yet there is no guaranteed funding.
    FEMA's response: The mitigation planning requirement is not an 
independently enforced, mandatory requirement. Rather, mitigation 
planning is a condition of eligibility for receiving certain assistance 
under the Stafford Act. State mitigation planning can result in reduced 
disaster losses. While there is no guaranteed funding for mitigation 
planning, FEMA has provided over $157 million in mitigation planning 
grants to States, Indian tribal governments, and local jurisdictions 
from February 2002 through March 2007. Projects are funded based on a 
thorough understanding of the local risks and vulnerabilities and the 
mitigation strategy outlined in the local mitigation plan.
    Executive Order 12898: One comment stated that the rule 
substantially affects human health or the environment under Executive 
Order 12898 by creating a planning requirement that will be difficult 
for large urban cities and rural poor areas to meet, thereby denying 
those jurisdictions the opportunity to apply for HMGP project grants.
    FEMA's response: FEMA does not agree that the rule has a 
disproportionate, adverse impact on minority or low income populations 
or on large urban cities. After the first interim rule, FEMA recognized 
that insufficient time was originally allowed to prepare the plans, and 
issued another IR on October 1, 2002 that extended the planning 
requirement for local plans under the HMGP from November 1, 2003 to 
November 1, 2004. Currently, over 14,000 jurisdictions now have 
approved local level mitigation plans, covering over 50 percent of the 
United States population. Large urban cities generally have their own 
planning and emergency management departments with staff who can carry 
out the work related to preparing the plan and/or direct the efforts of 
contractors. FEMA also recognized the potential administrative burden 
on jurisdictions that did not budget for the costs associated with the 
development of mitigation planning, and FEMA has provided funding 
opportunities for jurisdictions (through planning grants) to allow 
projects to proceed in minority or low income populations. This eases 
the potential burden on these jurisdictions while maintaining the 
statutory intent. Through these programs, FEMA has approved over 1,400 
planning grants between February 2002 and March 2007 with obligated 
Federal grants of over $157,000,000.
    In addition, Sec.  201.6(a)(3) allows for an exception, in 
extraordinary circumstances, for a jurisdiction to receive an HMGP 
project grant without an approved plan. In this circumstance, the 
jurisdiction must agree to develop a plan within 12 months of receiving 
the project grant. This exception allows small or impoverished 
communities or

[[Page 61560]]

jurisdictions with limited resources the opportunity to apply for 
project funds, while meeting the planning requirement. This exception 
is available after a disaster, which also allows FEMA to provide 
resources to jurisdictions that need to complete their mitigation plan. 
These resources can include training and workshops, new data leading to 
the risk assessment, assistance in holding and facilitating community 
meetings, as well as the grant funding for plan development. This 
allows such potentially disadvantaged communities to receive HMGP 
project grants concurrent with the development of their mitigation 
plan, and FEMA will work with those jurisdictions to assist them in 
meeting the planning requirement. Therefore, FEMA has implemented the 
planning requirement in a manner that addresses any potential 
disproportionate adverse effect on minority or low income populations 
by providing technical assistance and funding opportunities to meet the 
requirement, as well as exceptions allowing project grants to proceed 
even where the regular planning requirement is not yet met.
    45-day FEMA review: One comment wrote to express concern with the 
regulatory language that FEMA will review mitigation plans within 45 
days, ``whenever possible,'' yet State, tribal, and local governments 
are required to meet firm deadlines.
    FEMA's response: While FEMA makes every effort to review all plans 
in a timely manner, it must have the flexibility to have an extended 
review period beyond 45 days, if necessary. FEMA cannot control for 
disaster activity, field deployments, or large numbers of plans being 
submitted within a short timeframe, but is not aware of any programs or 
project grants being denied due to the lack of a plan being approved. 
The FEMA Regional offices have established draft plan review procedures 
that expedite the review and approval of final plans.
    Multi-jurisdictional plans: One comment requested additional 
information regarding criteria for multi-jurisdictional planning.
    FEMA's response: FEMA has developed a guidance document titled 
``Multi-Jurisdictional Mitigation Planning'' (FEMA 386-8). This 
document contains all of the guidance developed to date regarding 
multi-jurisdictional planning, and provides direction to those 
considering this type of planning process. This document can be 
obtained through any FEMA Regional office or on the FEMA Web site at 
http://www.fema.gov/plan/mitplanning/index/shtm.
    Disaster funding restrictions and planning: One commenter wrote 
that the Disaster Mitigation Act of 2000 did not intend to restrict 
disaster assistance to individuals due to the lack of a mitigation 
plan, and that failure to complete a plan should result in the denial 
of the increased mitigation dollars, not the entire mitigation grant 
program.
    FEMA's response: FEMA agrees that assistance to individuals and 
other emergency disaster assistance should not be impacted by the lack 
of a State Mitigation Plan, and have provided for this exception in the 
regulation in Sec.  201.3(c)(1). However, regarding non-emergency 
disaster assistance, State Mitigation Plans are critical to the 
disaster recovery process. The State establishes the framework for the 
recovery regarding how to address specific issues arising from the 
disaster, how to address building codes in the recovery effort, and to 
set priorities for mitigation activities. The requirement for this plan 
is based on over 30 years of experience that State mitigation planning 
can result in reduced disaster losses. Since State-level mitigation 
plans have been required for over 30 years, and section 322 of the 
Stafford Act is intended to increase mitigation activities, FEMA allows 
for Enhanced Plans, which make States eligible for the increased share 
of HMGP funding.
    Vulnerability information in State Plans: One commenter wrote that 
every structure, infrastructure, and critical facility is vulnerable to 
the risk of disasters and the estimated total loss is potentially the 
total assessed value of all properties in a jurisdiction, excluding 
land; therefore, the requirement to analyze these losses as indicated 
in Sec.  201.4(c)(2)(iii) is a meaningless and burdensome task.
    FEMA's response: Section 201.4 requires the State to provide an 
overview and analysis of potential losses in order to develop a 
strategy for reducing its risk and vulnerability. If an entire State is 
subject to losses from disasters, it would be important to assess that 
risk and determine the best approach to reducing vulnerabilities. FEMA 
has designed the planning criteria so that each State can develop its 
own approach to determining how to mitigate its risks.
    Publish as a proposed regulation: One comment stated that the 
regulation should be published as a proposed regulation to allow 
adequate consideration of the comments from State and local 
governments.
    FEMA's response: As FEMA noted in the interim rule, these 
regulations needed to be effective in order for State and local 
governments to be eligible for and to receive mitigation funds as soon 
as possible. The public benefit of an interim rule is to assist States 
and communities assess their risks and identify activities to 
strengthen the larger community in order to be less susceptible to 
disasters. For these reasons, delaying the effective date of this rule 
would not have furthered the public interest. Furthermore, prior to 
this rulemaking, FEMA hosted a meeting where interested parties 
provided comments and suggestions on how FEMA could implement planning 
requirements. FEMA has also considered comments provided by States and 
local governments during the rulemaking process in implementing the 
planning requirements. The agency will continue to assess the utility 
and practicality of the requirements based on the experiences of 
States, tribes, and local governments.
    Mitigation under the Public Assistance Program: One comment 
requested that FEMA change Sec.  206.226(c) so that the hazard 
mitigation measures identified in a FEMA approved local hazard 
mitigation plan and associated with facilities and sites which 
subsequently suffer disaster related damage in a declared disaster are 
automatically incorporated into the entity's public assistance hazard 
mitigation proposal on the Project Worksheet as an eligible item.
    FEMA's response: Activities funded under Sec.  206.226 must meet 
the basic eligibility requirements of the Public Assistance program. 
While mitigation measures identified in the approved mitigation plan 
may be worthwhile actions, they may not meet the requirements of the 
Public Assistance program, and would not be eligible.
    New language for the regulation: A number of comments proposed 
specific language revisions. One commenter wrote that the following 
language should be added to the FEMA responsibilities set out in Sec.  
201.3(b)(2), ``* * * and assist the [S]tate in the identification of 
the appropriate mitigation actions that a [S]tate or locality must take 
in order to have a measurable impact on reducing or avoiding the 
adverse effects of a specific hazard or hazardous situation'' because 
requiring the State to coordinate all State and local activities 
exceeds the State's capability and authority with regard to local 
control. Another commenter wrote that Sec.  201.3(c) be revised to read 
``[t]he key responsibilities of the State are to coordinate all State 
and regional activities relating to hazard evaluation and mitigation, 
and to the extent

[[Page 61561]]

possible, local activities relating to hazard evaluation and 
mitigation.'' One commenter wrote that Sec.  201.3(c)(4) should be 
removed as it is redundant to Subpart N, and that Sec.  
201.4(c)(4)(iii) should be stricken as it conflicts with Sec.  
201.4(c)(3)(iii). One comment suggested that FEMA should add the 
following to Sec.  206.401: ``* * * except where the local or [S]tate 
entity has adopted, in the post disaster period, new codes, standards, 
and ordinances that decrease risk to facilities from natural and 
manmade hazards.'' One comment asked that the language in Sec.  
206.432(b)(1) and (2) replace ``not to exceed'' with ``equal to.''
    FEMA's response: Regarding the request to add ``* * * and assist 
the [S]tate in the identification of the appropriate mitigation actions 
that a [S]tate or locality must take in order to have a measurable 
impact on reducing or avoiding the adverse effects of a specific hazard 
or hazardous situation'' to FEMA's responsibilities; FEMA believes that 
the existing description requiring FEMA to provide technical assistance 
covers this type of activity, if necessary, but does not require the 
provision of the assistance in every situation, where it might not be 
required. In addition, FEMA believes that State and local jurisdictions 
often have a better understanding than FEMA of what is an appropriate 
mitigation action given the local conditions.
    Regarding the request to revise Sec.  201.3(c) to read ``[t]he key 
responsibilities of the State are to coordinate all State and regional 
activities relating to hazard evaluation and mitigation, and to the 
extent possible, local activities relating to hazard evaluation and 
mitigation;'' FEMA understands that some States lack the authority to 
mandate local actions, but FEMA believes that this section can be (and 
is) interpreted broadly enough to accommodate this situation. The 
proposed language change emphasizes regional over local activities, and 
FEMA believes that if the State coordinates regional activities, it has 
met the requirements of this section, given the broad interpretation of 
local activities.
    Regarding the comment that Sec.  201.3(c)(4) should be removed as 
it is redundant to Subpart N; FEMA believes that it is important to 
identify a potential source of funding for planning within the planning 
regulation, even if it addressed in Subpart N.
    Regarding the comment that Sec.  201.4(c)(4)(iii) should be 
stricken as it conflicts with Sec.  201.4(c)(3)(iii); FEMA believes 
that while the two sections are similar, they are not identical and 
both need to be retained. Under the Mitigation Strategy (Sec.  
201.4(c)(3)(iii)), the intent is to identify a range of mitigation 
actions and activities that are prioritized based on a variety of 
criteria and under the Coordination of Local Mitigation Planning (Sec.  
201.4(c)(4)(iii)), the requirement is to prioritize communities who 
might most benefit from either planning or project grants (i.e. 
communities with high risk or multiple repetitive loss properties).
    Regarding the comment that FEMA add the following to Sec.  206.401: 
``* * * except where the local or [S]tate entity has adopted, in the 
post disaster period, new codes, standards, and ordinances that 
decrease risk to facilities from natural and manmade hazards;'' FEMA 
disagrees with this change since it would conflict with regulations 
guiding the restoration of damaged facilities under Sec.  206.226(d), 
and would substitute a very broad qualitative criterion of codes in 
general, as opposed to the five very specific criteria in the current 
regulation, which specifically requires that codes must be written, 
adopted, universally applied, and have demonstrated evidence of prior 
enforcement.
    Regarding the comment that that the language in Sec.  206.432(b)(1) 
and (2) replace ``not to exceed'' with ``equal to;'' it would not be 
appropriate to lock in the HMGP funding level by replacing ``not to 
exceed'' with ``equal to'' since Congress has already demonstrated a 
willingness to modify the HMGP funding formula.
    In the future, FEMA intends to engage in additional discussions 
with interested groups on how to improve the planning process, which 
may include changes to the regulatory language.
    Hazard Mitigation Surveys: One comment requested that FEMA restore 
the Hazard Mitigation Early Implementation Strategy, the Hazard 
Mitigation Surveys, and the Interagency Hazard Mitigation Survey 
requirements.
    FEMA's response: FEMA will consider restoring these post-disaster 
surveys as part of the ongoing implementation of the Hazard Mitigation 
Grant Program.

Comments on the Second IR

    Support for the extension of the date: One comment encouraged the 
interim rule to become final, and supported the extension of the date 
by which State and local governments must develop mitigation plans as a 
condition of grant assistance to November 1, 2004.
    FEMA's response: FEMA agrees and had already extended the date by 
which State and local governments must develop mitigation plans.
    Plan updates: One commenter asked about the process to bring 
existing mitigation plans into compliance with the regulations at part 
201, and how plans are to be updated when they expire.
    FEMA's response: Plans approved prior to the implementation of part 
201 must be reevaluated and re-approved by FEMA to ensure that they 
meet the planning requirements identified in part 201. FEMA has also 
provided guidance through FEMA's ``Multi-Hazard Mitigation Planning 
Guidance under DMA2000'' on how plans developed under the FMA program 
can be upgraded to meet the regulations at part 201. This document may 
be obtained through any Regional office or from the FEMA Web site at 
http://www.fema.gov/plan/mitplanning/index.shtm. In addition, FEMA is 
in the process of issuing specific guidance on how to update the State, 
tribal, and local plans when they expire.
    Disaster costs and mitigation planning: One commenter asked that 
FEMA provide each State and community with a detailed analysis of prior 
disaster assistance outlays by all Federal agencies, an integrated 
review of all structural projects in the community both as built and 
proposed, and a legal review regarding the authority of the planning 
process.
    FEMA's response: FEMA will work with State, tribal and local 
jurisdictions to ensure that they have information generated by FEMA 
regarding disaster outlays, and has developed guidance through its 
``Multi-Hazard Mitigation Planning Guidance under DMA2000'' on how to 
obtain additional data. This document may be obtained through any 
Regional office or from the FEMA Web site at http://www.fema.gov/plan/mitplanning/index.shtm. Most State, tribal, and local jurisdictions 
have the authority to develop and implement plans. FEMA encourages the 
mitigation planning process to be integrated across jurisdictions to 
ensure that existing data and information is shared and that there is 
no duplication of effort in gathering and analyzing data.

III. Regulatory Requirements

A. 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, a significant regulatory action is subject to the Office 
of Management and Budget (OMB) review and the requirements of the 
Executive Order. OMB has determined that this rule is not a

[[Page 61562]]

significant regulatory action. OMB has not reviewed this rule. 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 implement section 322 of the 
Stafford Act, which addresses mitigation planning at the State, local 
and tribal levels, identifies new local planning requirements, allows 
HMGP funds to be used for planning activities, and increases the amount 
of HMGP funds available to States that develop a comprehensive, 
Enhanced Mitigation Plan. The rule clarifies the requirements for State 
Mitigation Plans, identifies local mitigation planning requirements 
before approval of project grants, and requires our approval of an 
Enhanced State Mitigation Plan as a condition for increased mitigation 
funding. The rule also implements section 323 of the Stafford Act, 
which requires that repairs or construction funded by disaster loans or 
grants must comply with applicable standards and safe land use and 
construction practices.
    FEMA calculates the annual economic impact of the interim rules 
that this final rule finalizes to be approximately $46,000,000. As this 
final rule makes no significant change to these interim rules, FEMA is 
adopting the economic impact estimate of these interim rules as the 
economic impact of this final rule. The following paragraphs provide a 
more detailed explanation of the economic impact of this rulemaking.
    This rule modifies the State Mitigation planning requirement. 
Currently, all 50 States, the District of Columbia, 7 territories, and 
33 Indian tribal governments have approved State level mitigation 
plans. FEMA estimates that it takes an average of 2,080 hours for 
States to prepare State Mitigation Plans to comply with this 
regulation. Using wage rates from the May 2004, U.S. Department of 
Labor, Bureau of Labor Statistics (BLS), Standard Occupation 
Classification (SOC) System, the median hourly wage for urban and 
regional planners (SOC Code Number 19-3051) is $26.31 per hour. Adding 
30 percent to the BLS figure to account for benefits, FEMA has 
calculated the burden using a wage rate of $34.20 per hour. Since there 
are a total of 91 State level plans, it is estimated that the one time 
cost of compliance to submit the State Mitigation plans is $6,473,376. 
This figure is calculated as follows: ((91 x 2,080) x $34.20).
    These State Mitigation Plans must be updated every 3 years. Since 
there are a total of 91 State level plans, the cost estimate will 
assume that, on average, there will be 31 updated plans each year. All 
States now have existing State Mitigation Plans, and the only 
continuing requirement is for plan updates. FEMA estimates that it 
would take an average of 320 hours for States to prepare plan updates. 
Using wage rates from the May 2004, U.S. Department of Labor, BLS, SOC 
System, the median hourly wage for urban and regional planners (SOC 
Code Number 19-3051) is $26.31 per hour. Adding 30 percent to the BLS 
figure to account for benefits, FEMA has calculated the burden using a 
wage rate of $34.20 per hour. Therefore, it is estimated that the 
annual cost of compliance to submit the updates to State Mitigation 
Plans is $339,264. This figure is calculated as follows: ((31 x 320) x 
$34.20).
    This rule also allows States to submit an Enhanced State Mitigation 
Plan, should they wish to increase the amount of HMGP funds they 
receive from 15 percent to 20 percent. States may now opt to create an 
Enhanced Mitigation Plan to receive additional funding. As of March 
2007, there were 11 States with Enhanced Mitigation Plans. Two were 
approved in 2004, four in 2005, three in 2006, and two in 2007. These 
plans must be renewed every 3 years. As of July 2, 2007, there were 
only nine approved plans as two States opted not to renew their 
Enhanced Mitigation Plan.
    Once a State has a FEMA-approved Enhanced Mitigation Plan, its only 
remaining requirement is to review and update it once every 3 years. 
Using the data from the 5 years since the first interim rule was 
published the average number of plans submitted in a year is three. The 
cost estimates will assume three new and three renewal plans submitted 
to calculate the annual burden.
    Again, all States already have existing State Mitigation Plans. 
FEMA estimates that it would take an average of 320 hours for States to 
update their Enhanced Mitigation Plan, and an additional 160 hours for 
States to upgrade an existing Standard State Mitigation Plan to an 
Enhanced Plan. Since FEMA is encouraging States to update their plans 
when preparing an Enhanced Plan, the total hours for developing ``new 
Enhanced Mitigation plans'' is 480 hours (160 hours to upgrade from 
Standard to Enhanced plus 320 hours to update the plan). Using wage 
rates from the May 2004, U.S. Department of Labor, BLS, SOC System, the 
median hourly wage for urban and regional planners (SOC Code Number 19-
3051) is $26.31 per hour. Adding 30 percent to the BLS figure to 
account for benefits, FEMA has calculated the burden using a wage rate 
of $34.20 per hour. Therefore, it is estimated that the annual cost of 
compliance to voluntarily submit an Enhanced Mitigation Plan is 
$82,080. This figure is calculated as follows: ((3 x 480) x $34.20) + 
((3 x 320) x $34.20).
    After its Enhanced Mitigation Plan is approved, pursuant to Sec.  
206.432(b), a State is then able to receive an amount equal to 20 
percent of the total estimated Federal assistance (excluding 
administrative costs) provided for a major disaster declaration, 
instead of 15 percent. The table below reflects all States with 
Enhanced Plans, each disaster that has been declared in that State 
since its Enhanced plan was approved, and reflects the amount of HMGP 
funds it was eligible for. Each State was given funds at the 20 percent 
rate, however, the 15 percent rate is provided to determine the 
economic benefit (transfer) received from having the approved Enhanced 
Plan. In some cases, these are not final lock-in figures, but it is the 
most accurate data that FEMA has as of August 2007.

[[Page 61563]]



                                      Table: HMGP Fund Eligibility for States With Enhanced Plans 2004--August 2007
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Disaster dates
           State                Enhanced plan      declared after      Declaration       20% Amount          15% Amount               Difference
                                approved date       enhanced plan          No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
WA.........................  July 1, 2004......  May 17, 2006......            1641  $989,290.00.......  $741,967.50.......  $247,322.50.
                                                 December 12, 2006.            1671  6,106,627.00......  4,579,970.25......  1,526,656.75.
                                                 February 14, 2007.            1682  7,209,865.00......  5,407,398.75......  1,802,466.25.
MO.........................  July 2, 2004......  March 16, 2006....            1631  1,290,726.00......  968,044.50........  322,681.50.
                                                 April 5, 2006.....            1635  4,210,525.00......  3,157,893.75......  1,052,631.25.
                                                 November 2, 2006..            1667  128,676.00........  96,507.00.........  32,169.00.
                                                 December 29, 2006.            1673  825,000.00........  618,750.00........  206,250.00.
                                                 January 15, 2007..            1676  16,549,000.00.....  12,411,750.00.....  4,137,250.00.
                                                 June 11, 2007.....            1708  Data Unavailable..  Data Unavailable..  Data Unavailable.
OK.........................  March 18, 2005....  January 10, 2006..            1623  2,138,136.00......  1,603,602.00......  534,534.00.
                                                 April 13, 2006....            1637  244,990.00........  183,742.50........  61,247.50.
                                                 February 1, 2007..            1677  746,250.00........  559,687.50........  186,562.50.
                                                 February 1, 2007..            1678  7,592,175.00......  5,694,131.25......  1,898,043.75.
                                                 June 7, 2007......            1707  Data Unavailable..  Data Unavailable..  Data Unavailable.
OH.........................  May 17, 2005......  July 2, 2006......            1651  1,798,019.00......  1,348,514.25......  449,504.75.
                                                 August 1, 2006....            1656  3,411,736.00......  2,558,802.00......  852,934.00.
MD.........................  August 26, 2005...  July 2, 2006......            1652  1,274,514.00......  955,885.50........  318,628.50.
WI.........................  December 14, 2005.  None..............              NA  NA................  NA................  NA.
OR.........................  March 7, 2006.....  March 20, 2006....            1632  1,511,700.00......  1,133,775.00......  377,925.00.
                                                 December 29, 2006.            1672  921,824.00........  691,368.00........  230,456.00.
                                                 February 22, 2007.            1683  687,362.00........  515,521.50........  171,840.50.
FL.........................  August 22, 2006...  February 3, 2007..            1679  4,044,445.00......  3,033,333.75......  1,011,111.25.
                                                 February 8, 2007..            1680  263,916.00........  197,937.00........  65,979.00.
PA.........................  August 23, 2006...  February 23, 2007.            1684  1,822,812.00......  1,367,109.00......  455,703.00.
IA.........................  January 3, 2007...  March 14, 2007....            1688  Data Unavailable..  Data Unavailable..  Data Unavailable.
                                                 May 25, 2007......            1705  Data Unavailable..  Data Unavailable..  Data Unavailable.
VA.........................  March 14, 2007....  None..............              NA  NA................  NA................  NA.
                            ----------------------------------------------------------------------------------------------------------------------------
    Totals.................  ..................  ..................  ..............  63,767,588.00.....  47,825,691.00.....  15,941,897.00.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    These disasters range in date from March 16, 2006 to Feb. 23, 2007, 
which is roughly one year. A total of $63,767,588 in HMGP funds were 
granted at the 20 percent rate due to the fact that these States had 
approved Enhanced Mitigation Plans. This 5 percent increase translates 
to an additional $15,941,897 in funds distributed as a result of this 
regulation.
    This rule also requires that after November 1, 2004, a local 
mitigation plan must be approved in order to receive HMGP project 
grants. As of June 2007, over 2,500 local mitigation plans covering 
over 13,000 jurisdictions have been approved. FEMA receives and 
approves approximately 280 local plans per year. The requirement of a 
local plan does not affect the amount of HMGP funds that were available 
to the jurisdiction before this regulation. The economic impact results 
from the cost to create the plan. If a local jurisdiction is covered by 
a plan, it will receive the same amount of HMGP project funds it would 
have received before this requirement was created.
    From experience over the past 5 years, FEMA expects approximately 
280 new local plans to be developed annually. Once a local jurisdiction 
has a FEMA-approved Mitigation plan, they are required to review and 
update it once every 5 years. FEMA averages 280 plan updates per year. 
FEMA estimates that it would take an average of 2,080 hours to develop 
new plans, and 320 hours for plan updates, plus 8 hours for the State 
to review the local plan. Using wage rates from the May 2004, U.S. 
Department of Labor, BLS, SOC System, the median hourly wage for urban 
and regional planners (SOC Code Number 19-3051) is $26.31 per hour. 
Adding 30 percent to the BLS figure to account for benefits, FEMA has 
calculated the burden using a wage rate of $34.20 per hour. Therefore, 
it is estimated that the annual cost of compliance is (((280 x 2,080) + 
(280 x (320 + 8)) x 34.20) = $23,059,008.
    Under Sec.  206.434(d), up to 7 percent of the State's HMGP grant 
may be used to develop State, tribal and/or local mitigation plans. 
This change does not have any effect on the actual amount of HMGP funds 
that a State is eligible for, but allows the cost to develop plans 
described above to be offset by HMGP planning grants. This regulation 
simply expands the eligible use of HMGP funds to include the 
development of mitigation plans. States are not required to use the 
funds for this purpose. Any HMPG funding spent on mitigation planning 
is accounted for in the analysis above, under each category of planning 
(Standard State Mitigation Plans, Enhanced State Mitigation Plans, and 
local mitigation plans). For the reasons stated above, the annual 
impact of this rule on the economy is approximately $46,000,000. This 
figure is calculated as follows: ($6,473,376+$339,264+ 
$82,080+$15,941,897+$23,059,008).

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121, 110 Stat. 857), FEMA is not required to prepare 
a final regulatory flexibility analysis for this final rule because the 
agency has not issued a notice of proposed rulemaking prior to this 
action.

C. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.) (NEPA) implementing regulations governing FEMA activities at 
Sec.  10.8(d)(2)(ii) categorically exclude the preparation, revision 
and adoption of regulations from the preparation of an environmental 
assessment or environmental impact statement, where the rule relates to 
actions that qualify for categorical exclusions. Mitigation plans to be 
developed under regulations revised or adopted by this rulemaking

[[Page 61564]]

include hazard mitigation measures categorically excluded under Sec.  
10.8(d)(2)(iii).

D. 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, published February 16, 1994), 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.
    FEMA believes that no action under the rule will have a 
disproportionately high or adverse effect on human health or the 
environment. This rulemaking implements sections 322 and 323 of the 
Stafford Act. Section 322 focuses specifically on mitigation planning 
to identify the natural hazards, risks, and vulnerabilities of areas in 
States, localities, and tribal areas; development of local mitigation 
plans; technical assistance to local and tribal governments for 
mitigation planning; and identifying and prioritizing mitigation 
actions that the State will support as resources become available. 
Section 323 requires compliance with applicable codes and standards in 
repair and construction, and use of safe land use and construction 
standards. This rulemaking is intended to result in the creation of 
hazard mitigation plans that will assist communities in planning for 
hazards, so as to protect human lives and the environment. The Hazard 
Mitigation Grant Program is available to all States, tribes and local 
communities regardless of race, color, or national origin. Accordingly, 
the requirements of Executive Order 12898 do not apply to this rule.

E. Congressional Review of Agency Rulemaking

    FEMA has sent this final rule to the Congress and to the Government 
Accountability Office under the Congressional Review of Agency 
Rulemaking Act, (``Congressional Review Act''), Public Law 104-121. 
This rule is not a ``major rule'' within the meaning of the 
Congressional Review Act. 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.

F. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 
enacted as Public Law 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year.
    This final rule is not an unfunded Federal mandate within the 
meaning of the UMRA. This final rule would not impose a significant 
cost or uniquely affect small governments. The final does not have an 
effect on the private sector of $100 million or more in any 1 year. Any 
enforceable duties that FEMA imposes are a condition of Federal 
assistance or a duty arising from participation in a voluntary Federal 
program.

G. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism,'' (64 FR 43255, 
published 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, 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 determined that this rule involves no policies that have 
federalism implications under Executive Order 13132. However, FEMA 
consulted with State, local and tribal officials in the promulgation of 
this rulemaking. Furthermore, in order to assist in the development of 
this rule, FEMA hosted a meeting to allow interested parties an 
opportunity to provide their perspectives on the legislation and 
options for implementation of the Stafford Act requirements. 
Stakeholders who attended the meeting included representatives from the 
National Emergency Management Association, the Association of State 
Floodplain Managers, the National Governors' Association, the 
International Association of Emergency Managers, the National 
Association of Development Organizations, the American Public Works 
Association, the National League of Cities, the National Association of 
Counties, the National Conference of State Legislatures, the 
International City/County Management Association, and the Bureau of 
Indian Affairs. FEMA received valuable input from all parties at the 
meeting which was taken into account in the development of the initial 
interim rule. In addition, FEMA received comments on the interim rules 
from 14 State emergency management agencies, 3 organizations, 2 local 
governments; and 1 independent group.

H. Paperwork Reduction Act

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.), an agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless the 
collection of information displays a valid control number. OMB has 
approved a collection of information entitled ``State/Local/Tribal 
Hazard Mitigation Plans--Section 322 of the Disaster Mitigation Act of 
2000'' (OMB No. 1660-0062) for the use of information gathered pursuant 
to this rulemaking. The OMB collection number for this collection is 
1660-0062. An emergency extension was filed with OMB on June 18, 2007, 
and approved on June 25, 2007. The collection is currently set to 
expire on October 31, 2007. Before the collection expires, FEMA will 
submit a request for revision to this collection and begin the OMB 
clearance process for long-term approval by publishing a 60 day request 
for comments on the revision.

I. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    FEMA has reviewed this rule under Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, published November 9, 2000). FEMA finds that, while it does have 
``tribal implications'' as defined in Executive Order 13175, 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.

[[Page 61565]]

    Despite this determination, FEMA has, and continues to, consult 
with Indian tribal governments with respect to hazard mitigation. 
Before FEMA developed the interim rule, the agency met with 
representatives from State and local governments and the Bureau of 
Indian Affairs to discuss the new planning requirements of section 322 
of the Stafford Act. The same opportunity for comment was offered to 
all parties. FEMA received valuable input from all attendees, which 
helped FEMA to develop the interim rule. Also, since FEMA published the 
interim rule, it has coordinated more directly with Indian tribal 
governments, and with organizations that represent them. For example, 
in conjunction with the National Congress of American Indians, FEMA 
hosted a Tribal Mitigation Conference in October 2002 at the Ak-Chin 
Indian Community, Arizona. This conference provided FEMA with an 
opportunity to better understand its responsibilities related to Indian 
tribal governments and to build a working relationship with many of the 
Indian tribal representatives. A follow-up conference was held at the 
Salish Kootenai Community, Montana in August 2003. As a direct result 
of these conferences, FEMA developed an EMI resident course titled 
``Mitigation for Tribal Officials.'' This course provides a direct 
opportunity for coordination and information sharing between Indian 
tribal representatives and FEMA, resulting in refinements to FEMA's 
Indian tribal policy and guidance.
    Finally, FEMA believes that planning is critical to successful 
mitigation at all levels of government. The agency has been working to 
technically assist all federally-recognized Indian tribal governments 
regarding the availability of grant funding, training opportunities, as 
well as program requirements.

List of Subjects

44 CFR Part 201

    Administration practice and procedure, Disaster assistance, Grant 
programs, Reporting and recordkeeping requirements.

44 CFR Part 204

    Administration practice and procedure, Fire prevention, Grant 
programs, Reporting and recordkeeping requirements.

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
Accordingly, for the reasons stated in the preamble, the interim rules 
amending 44 CFR parts 201, 204, and 206 that were published at 67 FR 
8844 on February 26, 2002, 67 FR 61512 on October 1, 2002, 68 FR 61368 
on October 28, 2003, 69 FR 55094 on September 13, 2004, and the 
correcting amendment published at 68 FR 63738 on November 10, 2003, are 
adopted as final with the following changes:

PART 201--MITIGATION PLANNING

0
1. The authority citation for part 201 is revised to read as follows:

    Authority: 42 U.S.C. 5121-5206; 6 U.S.C. 101; 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; E.O. 13286, 68 FR 10619, 3 CFR, 
2003 Comp., p. 166.

0
2. Revise Sec.  201.4 (c)(2)(ii) to read as follows:


Sec.  201.4  Standard State Mitigation Plans.

* * * * *
    (c) * * *
    (2) * * *
    (ii) An overview and analysis of the State's vulnerability to the 
hazards described in this paragraph (c)(2), based on estimates provided 
in local risk assessments as well as the State risk assessment. The 
State shall describe vulnerability in terms of the jurisdictions most 
threatened by the identified hazards, and most vulnerable to damage and 
loss associated with hazard events. State owned or operated critical 
facilities located in the identified hazard areas shall also be 
addressed;
* * * * *

    Dated: October 24, 2007.
Harvey E. Johnson, Jr.,
Deputy Administrator/Chief Operating Officer, Federal Emergency 
Management Agency.
[FR Doc. E7-21264 Filed 10-30-07; 8:45 am]
BILLING CODE 9110-41-P