[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Rules and Regulations]
[Pages 20549-20551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8186]


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

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 206

[Docket ID FEMA-2008-0003]
RIN 1660-AA59


Disaster Assistance; Change in Federal Share for Alternate 
Projects for Public Facilities

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

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

SUMMARY: This final rule makes a conforming amendment to the Federal 
Emergency Management Agency's (FEMA) Public Assistance regulations to 
reflect two changes to the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (the Stafford Act) made by the Security and 
Accountability For Every Port Act of 2006 (the SAFE Port Act). The 
first change amends the percentage of the Federal contribution for 
alternate projects from 75 percent to 90 percent of the Federal share 
of the Federal estimate of eligible costs for public facilities. The 
second change removes language that provided for Federal funding of 90 
percent of the Federal share of the approved Federal estimate of 
eligible costs for alternate projects in areas with unstable soil. 
These changes are technical and conforming amendments that revise 
FEMA's regulations to conform with amendments to the Stafford Act. FEMA 
is exercising no discretion in implementing these changes.

DATES: This final rule is effective April 16, 2008.

FOR FURTHER INFORMATION CONTACT: James A. Walke, Director, Public 
Assistance Division, Federal Emergency Management Agency, 500 C Street 
SW., Room 601, Washington, DC 20472, (phone) 202-646-2751; (facsimile) 
202-646-3304; or (e-mail) [email protected].

SUPPLEMENTARY INFORMATION: Under the authority of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (the Stafford 
Act), Public Law 93-288, as amended, 42 U.S.C. 5121-5207, the Federal 
Emergency Management Agency (FEMA) provides funding to State or local 
governments or private nonprofit organizations (PNPs) to repair, 
restore, reconstruct or replace public facilities owned or controlled 
by the State or local government or PNP. If, however, the State or 
local government or PNP determines that the public welfare would not 
best be served by repairing, restoring, reconstructing, or replacing 
the public facility, it may elect to receive a contribution to use for 
alternate projects. Any alternate project must either be ``to repair, 
restore, or expand other selected public facilities; to construct new 
facilities; or to fund hazard mitigation measures that the State or 
local government determines to be necessary to meet a need for 
governmental services and functions in the area affected by the major 
disaster.'' (42 U.S.C. 5172(c)(1); 44 CFR 206.203(d)(2)).
    Section 609 of the Security and Accountability For Every Port Act 
of 2006 (SAFE Port Act), Public Law 109-347, 120 Stat. 1884, October 
13, 2006, amended section 406(c)(1) of the Stafford Act by changing the 
Federal contribution for alternate projects for State and local 
government applicants from ``75 percent of the Federal share'' of the 
eligible costs for public facilities to ``90 percent of the Federal 
share'' of the eligible costs for public facilities. Accordingly FEMA 
is revising 44 CFR 206.203(d)(2)(ii) to reflect this statutorily 
mandated percent share increase for public facilities.
    Because Congress made this change for public facilities, but made 
no change to the 75 percent contribution for private nonprofit 
applicants' alternate projects, FEMA is adding a new paragraph to 
separately address the Federal contribution for private nonprofit 
facilities, which remains at 75 percent.
    Section 609 of the SAFE Port Act also struck former section 406(B) 
of the Stafford Act, which provided for Federal funding of 90 percent 
of the Federal share of the approved Federal estimate of eligible costs 
of alternate projects in areas with unstable soil. Because Congress 
removed this authority from the Stafford Act and because FEMA will 
already be providing funding of 90 percent of the Federal share of the 
approved Federal estimate to State and local governments regardless of 
the stability of the soil through its change to 44 CFR 
206.203(d)(2)(ii), FEMA is removing the regulation that implemented 
section 406(B) at 44 CFR 206.203(d)(2)(iii).

Administrative Procedure Act

    Under the Administrative Procedure Act (APA), a notice of a 
proposed rulemaking is not necessary to revise a regulation if the 
agency finds for good cause that notice and public procedure are 
``impracticable, unnecessary, or contrary to the public interest.'' See 
5 U.S.C. 553(b)(3)(B). This rulemaking conforms with the good cause 
exemption under section 553(b)(B) of the APA because notice and comment 
is unnecessary and impractical. Public comments would serve no useful 
purpose, as the revision to the regulation is mandated by the change to 
FEMA's statutory authority, and FEMA has no discretion to alter this 
statutory mandate. For these reasons, FEMA also finds that it has good 
cause not to delay the effective date of this rule under 5 U.S.C. 
553(d)(3).

Executive Order 12866, as Amended, Regulatory Planning and Review

    FEMA has prepared and reviewed this rulemaking under the provisions 
of Executive Order 12866, 58 FR 51735, Oct. 4, 1993, and as amended. 
Under Executive Order 12866, a significant regulatory action is subject 
to the Office

[[Page 20550]]

of Management and Budget (OMB) review and the requirements of the 
Executive Order. The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or may adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This rule is not a significant regulatory action. This regulation 
will revise FEMA's regulations to conform to changes Congress made in 
the agency's authorizing statute. Before Congress revised the 
contribution amount for alternate projects from 75 percent to 90 
percent of the Federal share of the eligible costs for public 
facilities, FEMA provided on average $520,000 per year in contributions 
for alternate projects. Although the change to the Stafford Act and the 
change to FEMA's regulations by this rule will only affect the 
contribution amount for public facilities, this figure includes funds 
for public facilities as well as private nonprofit facilities, as 
independent data is unavailable. This regulatory change is expected, 
therefore, to increase that figure by 15 percent (75 to 90), which is 
$78,000. Therefore the average amount of FEMA's contribution toward 
alternate projects would rise from $520,000 to $598,000 per year.
    There is no effect on the economy by the removal of the language 
providing for Federal funding of 90 percent of the Federal share of the 
approved Federal estimate of eligible costs of alternate projects in 
areas with unstable soil. Since FEMA will already be providing funding 
of 90 percent of the Federal share of the approved Federal estimate 
regardless of the stability of the soil, those projects that have 
unstable soil will see no difference.
    This rule is not a ``significant regulatory action'' under 
Executive Order 12866; therefore, OMB has not reviewed it under that 
Order. The annual effect of this rule on the economy is approximately 
$78,000. FEMA knows of no other conditions that would qualify this 
final rule as a ``significant regulatory action'' within the definition 
of section 3(f) of the Executive Order.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA'') mandates that an agency 
conduct an RFA analysis when an agency is ``required by section 553 * * 
* to publish general notice of proposed rulemaking for any proposed 
rule * * *.'' 5 U.S.C. 603(a). Accordingly, RFA analysis is not 
required when a rule is exempt from notice and comment rulemaking under 
5 U.S.C. 553(b). DHS has determined that good cause exists under 5 
U.S.C. 553(b)(B) to exempt this rule from the notice and comment 
requirements of 5 U.S.C. 553(b). Therefore no RFA analysis under 5 
U.S.C. 603 is required for this rule.

Unfunded Mandates Reform Act of 1995

    FEMA has not issued a notice of proposed rulemaking for this 
regulatory action; therefore, the provisions of the Unfunded Mandates 
Reform Act of 1995, as amended, 2 U.S.C. 658, 1501-1504, 1531-1536, 
1571, do not apply to this regulatory action.

Paperwork Reduction Act of 1995

    This rulemaking contains no new collection of information, or 
revision to an existing collection of information, as defined by the 
Paperwork Reduction Act of 1995 (PRA), as amended, 44 U.S.C. 3501-3520.

National Environmental Policy Act of 1969 (NEPA)

    Under the National Environmental Policy Act of 1969 (NEPA), as 
amended, 42 U.S.C. 4321, 4331-4335, 4344, and 4365, an agency must 
prepare an environmental assessment and environmental impact statement 
for any rulemaking that significantly affects the quality of the human 
environment. FEMA has determined that this rulemaking does not 
significantly affect the quality of the human environment and 
consequently has not prepared an environmental assessment or 
environmental impact statement. The rulemaking pertains to the repair, 
restoration, reconstruction, or replacement of a public facility. These 
actions are categorically excluded from the preparation of 
environmental impact statements and environmental assessments pursuant 
to 44 CFR 10.8(d)(2)(xv), pertaining to the repair, reconstruction, 
restoration, elevation, retrofitting, upgrading to current codes and 
standards, or replacement of any facility in a manner that 
substantially conforms to the preexisting design, function, and 
location. Under 44 CFR 10.8(d)(2)(ii), the preparation, revision, and 
adoption of regulations related to actions that qualify for categorical 
exclusions are also excluded from the preparation of environmental 
impact statements and environmental assessments. Since this rulemaking 
pertains to actions that qualify for a categorical exclusion, FEMA is 
not required to prepare an environmental assessment or environmental 
impact statement.

Executive Order 13132, Federalism

    Executive Order 13132, Federalism, 64 FR 43255, 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, on the relationship between the national 
government and 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 reviewed this final rule under Executive Order 13132 and 
because this rule merely implements a statutory change in the 
percentage of public assistance funding that can be provided for 
alternate projects, FEMA has determined that this rule does not have 
federalism implications as defined by the Executive Order.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, 65 FR 67249, November 9, 2000, applies to agency 
regulations that have tribal implications, that is, regulations that 
have substantial direct effects 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. Under this Executive Order, to the extent 
practicable and permitted by law, no agency shall promulgate any 
regulation that has tribal implications, that imposes substantial 
direct compliance costs on Indian tribal governments, and that is not 
required by statute, unless funds necessary to pay the direct costs

[[Page 20551]]

incurred by the Indian tribal government or the tribe in complying with 
the regulation are provided by the Federal Government, or the agency 
consults with tribal officials.
    This rule implements a statutory change in the percentage of Public 
Assistance funding that can be provided for alternate projects. This 
rulemaking 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.

Executive Order 12898, Environmental Justice

    Pursuant to Executive Order 12898, Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations, 59 FR 7629, February 16, 1994, as amended by Executive 
Order 12948, 60 FR 6381, February 1, 1995, 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.
    This rulemaking will not have a disproportionately high or adverse 
effect on minorities or low-income populations.

Congressional Review of Agency Rulemaking

    Under the Congressional Review of Agency Rulemaking Act (CRA), 5 
U.S.C. 801-808, before a rule can take effect, the Federal agency 
promulgating the rule must submit to Congress and to the Government 
Accountability Office (GAO) a copy of the rule, a concise general 
statement relating to the rule, including whether it is a major rule, 
the proposed effective date of the rule, a copy of any cost-benefit 
analysis, descriptions of the agency's actions under the Regulatory 
Flexibility Act and the Unfunded Mandates Reform Act, and any other 
information or statements required by relevant executive orders. FEMA 
has sent this rule to the Congress and to GAO pursuant to the CRA.

List of Subjects in 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
For the reasons set forth in the preamble, FEMA amends part 206 of 
title 44 of the Code of Federal Regulations as follows:

PART 206--FEDERAL DISASTER ASSISTANCE

0
1. The authority citation for part 206 continues to read as follows:

    Authority: Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121 through 5206; Reorganization Plan No. 
3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security 
Act of 2002, 6 U.S.C. 101; 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 paragraphs (d)(2)(ii) and (d)(2)(iii) of Sec.  206.203 to 
read as follows:


Sec.  206.203  Federal grant assistance.

* * * * *
    (d) * * *
    (2) * * *
    (ii) Federal funding for alternate projects for damaged public 
facilities will be 90 percent of the Federal share of the Federal 
estimate of the cost of repairing, restoring, reconstructing, or 
replacing the facility and of management expenses.
    (iii) Federal funding for alternate projects for damaged private 
nonprofit facilities will be 75 percent of the Federal share of the 
Federal estimate of the cost of repairing, restoring, reconstructing, 
or replacing the facility and of management expenses.
* * * * *

    Dated: April 10, 2008.
R. David Paulison,
Administrator, Federal Emergency Management Agency.
[FR Doc. E8-8186 Filed 4-15-08; 8:45 am]
BILLING CODE 9110-10-P