[Federal Register Volume 75, Number 158 (Tuesday, August 17, 2010)]
[Rules and Regulations]
[Pages 50713-50715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20281]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 204

[Docket ID FEMA-2010-0036]
RIN-1660-AA72


Procedural Changes to the Fire Management Assistance Declaration 
Process

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

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SUMMARY: By this final rule, the Federal Emergency Management Agency 
(FEMA) is updating its Fire Management Assistance Grant Program 
regulations to reflect a change in the internal delegation of authority 
for fire management assistance declarations, and resulting internal 
procedural changes that are impacted by the change in authority. FEMA 
is also making nomenclature changes to update names and titles to 
reflect recent changes to FEMA's organizational structure.

DATES: This final rule is effective August 17, 2010.

ADDRESSES: A copy of this rule is available electronically on the 
Federal eRulemaking Portal at www.regulations.gov. (In the Keyword 
Search or ID box, type FEMA-2010-0036.)
    The rule is also available for inspection at the Office of Chief 
Counsel, DHS/FEMA, 500 C Street, SW., Room 835, Washington, DC 20472-
3100.

FOR FURTHER INFORMATION CONTACT: James A. Walke, Director, Public 
Assistance Division, Recovery Directorate, DHS/FEMA, 500 C Street, SW., 
Washington, DC 20472-3300. Phone: 202-646-2751. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    The Fire Management Assistance Grant (FMAG) Program assists State, 
local, and Tribal governments with the mitigation, management, and 
control of fires on publicly or privately owned forests or grasslands, 
which threaten such destruction as would constitute a major disaster. 
The FMAG declaration process may be initiated when a fire is burning 
uncontrolled and threatens such destruction as would constitute a major 
disaster. The FMAG declaration process is initiated by a State 
submitting a request for assistance to the Regional Administrator. The 
request addresses the threat to lives and improved property, the 
availability of State and local firefighting resources, high fire 
danger conditions, and the potential for major economic impact. Those 
criteria are supported with documentation that contains factual data 
and professional estimates. The Regional Administrator then coordinates 
with the Principal Advisor and forwards the request to the Assistant 
Administrator for the Disaster Assistance Directorate. The Assistant 
Administrator for the Disaster Assistance Directorate then makes a 
determination whether the fire or fire complex threatens such 
destruction as would constitute a major disaster. The entire process is 
accomplished on an expedited basis.

II. Discussion of the Rule

    In December 2009, FEMA underwent a reorganization to streamline and 
improve FEMA's programs and, consistent with the reorganization, is now 
revising the delegation of authority under the FMAG program regarding 
determinations that a fire or fire complex threatens such destruction 
as would constitute a major disaster. This final rule therefore updates 
title 44, part 204 of the Code of Federal Regulations (CFR) to reflect 
those organizational and procedural changes. This final rule does not 
change the substantive eligibility requirements, contained in FEMA's 
existing regulations.
    On March 3, 2004, the Secretary for Homeland Security delegated the 
authority to make FMAG determinations to the Administrator (then called 
the Under Secretary for Emergency Preparedness and Response) in 
Homeland Security Delegation Number 9001. This delegation to the 
Administrator explicitly authorizes redelegation of this authority. 
This procedural rule removes the redelegation of authority to the 
Assistant Administrator for the Disaster Assistance Directorate (now 
the Assistant Administrator for Recovery per the 2009 internal 
reorganization) and reverts the authority to issue FMAG declarations 
and decide appeals back to the Administrator.
    Although the Administrator is rescinding his redelegation of this 
authority to the Assistant Administrator for the Disaster Assistance 
Directorate, at any time the Administrator may redelegate this 
authority at his discretion, in writing. Such delegations are not 
required to be made through regulation, or published in the Federal 
Register. Pursuant to the Federal Register Act (44 U.S.C. 1505), the 
only documents that are required to be published in the Federal 
Register are Presidential proclamations, Executive Orders, and those 
documents that either the President has determined to have general 
applicability and legal effect or are required to be published in the 
Federal Register by Act of Congress. The delegation of the FEMA 
Administrator's authority to make determinations regarding the FMAG 
program does not trigger those criteria.
    States that seek a declaration under the FMAG program will continue 
to submit their requests for declarations to FEMA through the Regional 
Administrator. The Regional Administrator will forward the request to 
the Administrator for a determination on the declaration. This change 
in redelegation will affect the procedural requirements associated with 
applying for fire management assistance declarations by changing who 
reviews requests for FMAG declarations. This rule only changes the 
internal processing procedures that occur after a State submits a 
request. The application requirements remain the same, as do the 
requirements for eligibility.

III. Regulatory Information

A. Administrative Procedure Act

    FEMA did not publish a notice of proposed rulemaking (NPRM) for 
this regulation. FEMA finds that this rule is exempt from the 
Administrative Procedure Act's (5 U.S.C. 553(b)) notice and comment 
rulemaking requirements because it is purely procedural in nature. See 
5 U.S.C. 553(b)(3)(A). This rule updates FEMA's regulations to reflect 
a change in the internal delegation of authority for fire

[[Page 50714]]

management assistance declarations and appeals. It will not change the 
requirements to request an FMAG declaration, the eligibility 
requirements to receive such a declaration, the amount of assistance 
available should a declaration be made, or the appeals process. These 
changes do not confer any substantive rights, benefits or obligations.
    This rule is not a substantive rule because it addresses technical 
matters regarding internal agency procedure; therefore it does not 
require a delayed effective date pursuant to 5 U.S.C. 553(d). Therefore 
this rule is effective immediately upon publication in the Federal 
Register.

B. Executive Order 12866, Regulatory Planning and Review

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, Oct. 4, 1993), accordingly FEMA has not submitted it to the 
Office of Management and Budget (OMB) for review. As this rule involves 
revisions to internal agency procedures, will not change the 
requirements to request a declaration, the eligibility requirements for 
a declaration, or the amount of assistance available should a 
declaration be made, it will not impose any costs to the public.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires that 
special consideration be given to the effects of regulations on small 
entities. This rule will not have a significant economic impact on the 
regulated public. Therefore, FEMA certifies that this will not have a 
significant economic impact on a substantial number of small entities.

D. Paperwork Reduction Act of 1995

    As required by the Paperwork Reduction Act of 1995 (PRA), Public 
Law 104-13 (44 U.S.C. 3501 et seq.), as amended, 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 OMB control number. This rule will not result in a new 
collection of information, or revise an existing collection under the 
PRA.

E. Executive Order 13132, Federalism

    A rule has implications for federalism under Executive Order 13132, 
``Federalism'' (64 FR 43255, Aug. 10, 1999), if it has a substantial 
direct effect on State or local governments and would either preempt 
State law or impose a substantial direct cost of compliance on them. 
FEMA has analyzed this final rule under that Order and determined that 
it does not have implications for federalism.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 
Stat. 48 (Mar. 22, 1995) (2 U.S.C. 1501 et seq.), requires Federal 
agencies to assess the effects of their discretionary regulatory 
actions that may result in the expenditure by a State, local, or Tribal 
government, in the aggregate, or by the private sector of $100,000,000 
or more in any one year. As this final rule will not result in such an 
expenditure, this rule is not an unfunded Federal mandate.

G. Executive Order 12630, Taking of Private Property

    This rule will not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' (53 FR 8859, Mar. 18, 1988).

H. Executive Order 12898, Environmental Justice

    Under Executive Order 12898, as amended, ``Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations'' (59 FR 7629, Feb. 16, 1994), FEMA has undertaken to 
incorporate environmental justice into its policies and programs. 
Executive Order 12898 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, denying persons the benefit of, or 
subjecting persons to discrimination because of their race, color, or 
national origin or income level.
    No action that FEMA can anticipate under this final rule will have 
a disproportionately high and adverse human health or environmental 
effect on any segment of the population. Accordingly, the requirements 
of Executive Order 12898 do not apply to this final rule.

I. Executive Order 12988, Civil Justice Reform

    This final rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, 
Feb. 7, 1996), to minimize litigation, eliminate ambiguity, and reduce 
burden.

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

    This final rule does not have tribal implications under Executive 
Order 13175, ``Consultation and Coordination with Indian Tribal 
Governments'' (65 FR 67249, Nov. 9, 2000), because it does 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.

K. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    This final rule will not create environmental health risks or 
safety risks for children under Executive Order 13045, Protection of 
Children From Environmental Health Risks and Safety Risks (62 FR 19885, 
Apr. 23, 1997).

L. National Environmental Policy Act

    This final rule is not a major agency action, nor will it affect 
the quality of the environment. FEMA regulations at 44 CFR 
10.8(d)(2)(xviii)(N) categorically exclude Fire Management Assistance 
Grants from the preparation of environmental impact statements and 
environmental assessments. Pursuant to 44 CFR 10.8(d)(2)(ii), 
regulations related to actions that qualify for categorical exclusions 
are also categorically excluded. Therefore, this final rule will not 
require the preparation of either an environmental assessment or an 
environmental impact statement as defined by the National Environmental 
Policy Act of 1969, Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 
U.S.C. 4321 et seq.), as amended.

M. Congressional Review of Agency Rulemaking

    FEMA has sent this final rule to Congress and to the Government 
Accountability Office under the Congressional Review of Agency 
Rulemaking Act (Act), Public Law 104-121, 110 Stat. 873 (Mar. 29, 1996) 
(5 U.S.C. 804). The rule is not a ``major rule'' within the meaning of 
that Act and will not result in an annual effect on the economy of 
$100,000,000 or more. Moreover, it will not result in a major increase 
in costs or prices for consumers, individual industries, Federal, 
State, or local government agencies, or geographic regions. FEMA does 
not expect that it will have significant adverse effects on

[[Page 50715]]

competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises.

List of Subjects in 44 CFR Part 204

    Administrative practice and procedures, Fire prevention, Grant 
programs, Reporting and recordkeeping requirements.

0
For the reasons stated in the preamble, FEMA amends 44 CFR part 204 as 
follows:

PART 204--FIRE MANAGEMENT ASSISTANCE GRANT PROGRAM

0
1. The authority citation for part 204 is revised to read as follows:

    Authority: Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121-5207; Reorganization Plan No. 3 of 
1978, 43 FR 41943; 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 
19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 
1979 Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., 
p. 214.


Sec.  204.3  [Amended]

0
2. In Sec.  204.3:
0
a. Remove the definition of the term ``Assistant Administrator''; and
0
b. In the definition of the term ``Declared fire'', remove the words 
``Assistant Administrator for the Disaster Assistance Directorate'' and 
add in their place, the word ``Administrator''.


Sec.  204.21  [Amended]

0
3. In Sec.  204.21, paragraph (a), remove the words ``Assistant 
Administrator for the Disaster Assistance Directorate'' and add in 
their place, the word ``Administrator''.


0
4. Revise Sec.  204.23 to read as follows:


Sec.  204.23  Processing a request for a fire management assistance 
declaration.

    (a) In processing a State's request for a fire management 
assistance declaration, the Regional Administrator, in coordination 
with the Principal Advisor, will verify the information submitted in 
the State's request.
    (b) The Principal Advisor, at the request of the Regional 
Administrator, is responsible for providing FEMA a technical assessment 
of the fire or fire complex for which the State is requesting a fire 
management assistance declaration. The Principal Advisor may consult 
with State agencies, usually emergency management or forestry, as well 
as the Incident Commander, in order to provide FEMA with an accurate 
assessment.


0
5. Revise Sec.  204.24 to read as follows:


Sec.  204.24  Determination on request for a fire management assistance 
declaration.

    The Administrator will review all information submitted in the 
State's request along with the Principal Advisor's assessment and 
render a determination. The determination will be based on the 
conditions of the fire or fire complex existing at the time of the 
State's request. When possible, the Administrator will evaluate the 
request and make a determination within several hours. Once the 
Administrator renders a determination, FEMA will promptly notify the 
State of the determination.


0
6. Revise Sec.  204.26 to read as follows:


Sec.  204.26  Appeal of fire management assistance declaration denial.

    (a) Submitting an appeal. When a State's request for a fire 
management assistance declaration is denied, the Governor or GAR may 
appeal the decision in writing within 30 days after the date of the 
letter denying the request. The State should submit this one-time 
request for reconsideration in writing, with appropriate additional 
information to the Administrator through the Regional Administrator. 
The Administrator will reevaluate the State's request and notify the 
State of the final determination within 90 days of receipt of the 
appeal or the receipt of additional requested information.
    (b) Requesting a time-extension. The Administrator may extend the 
30-day period for filing an appeal, provided that the Governor or the 
GAR submits a written
    (c) Request for such an extension within the 30-day period. The 
Administrator will evaluate the need for an extension based on the 
reasons cited in the request and either approve or deny the request for 
an extension.

    Dated: August 11, 2010.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2010-20281 Filed 8-16-10; 8:45 am]
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