[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Rules and Regulations]
[Pages 47055-47056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19661]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / 
Rules and Regulations  

[[Page 47055]]



DEPARTMENT OF AGRICULTURE

Rural Utilities Service

7 CFR Part 1730

RIN 0572-AC16


Emergency Restoration Plan (ERP)

AGENCY: Rural Utilities Service, USDA.

ACTION: Final rule.

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

SUMMARY: The Rural Utilities Service (RUS) is amending the requirements 
established for Emergency Restoration Plans (ERPs), currently mandated 
for all borrowers, to include a plan to comply with the eligibility 
requirements to qualify for the Federal Emergency Management Agency 
(FEMA) Public Assistance Grant Program in the event of a declared 
disaster. This amendment will ensure that RUS borrowers have a plan to 
maintain their eligibility to receive financial assistance from FEMA in 
the event they incur eligible costs for disaster related system repair 
and restoration.

DATES: September 6, 2011.

FOR FURTHER INFORMATION CONTACT: Donald Junta, USDA--Rural Utilities 
Service, 1400 Independence Avenue, SW., Stop 1569, Washington, DC 
20250-1569, telephone (202) 720-1900 or e-mail to 
[email protected].

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. The Agency has determined that this final rule 
meets the applicable standards in Sec.  3 of the Executive Order.

Regulatory Flexibility Act Certification

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule since the Rural Utilities Service is not 
required by 5 U.S.C. 551 et seq. or any other provision of law to 
publish a notice of proposed rulemaking with respect to the subject 
matter of this rule.

Information Collection and Recordkeeping Requirements

    The information collection burden associated with this rulemaking 
is approved under OMB control number 0572-0140. This rule contains no 
additional information collection or recordkeeping requirements under 
OMB control number 0572-0140 that would require approval under the 
Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

E-Government Act Compliance

    The Rural Utilities Service is committed to the E-Government Act, 
which requires government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible.

National Environmental Policy Act Certification

    The Agency has determined that this rule will not significantly 
affect the quality of the human environment as defined by the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Therefore, 
this action does not require an environmental impact statement or 
assessment.

Catalog of Federal Domestic Assistance

    The program described by this rule is listed in the Catalog of 
Federal Domestic Assistance Programs under number 10.850, Rural 
Electrification Loans and Loan Guarantees. This catalog is available on 
a subscription basis from the Superintendent of Documents, the United 
States Government Printing Office, Washington, DC 20402-9325, telephone 
number (202) 512-1800 and at https://www.cfda.gov.

Executive Order 12372

    This rule is excluded from the scope of Executive Order 12372, 
Intergovernmental Consultation, which may otherwise require 
consultation with State and local officials, pursuant to USDA's 
regulation at 7 CFR part 3015.

Unfunded Mandates

    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995) for 
State, local, and tribal governments or the private sector. Therefore, 
this rule is not subject to the requirements of Sec. Sec.  202 and 205 
of the Unfunded Mandates Reform Act of 1995.

Executive Order 13132, Federalism

    The policies contained in this final rule do not have any 
substantial direct effect on 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, nor does this 
final rule impose substantial direct compliance costs on State and 
local governments. Therefore, consultation with States is not required.

Background

    The Agency published a final rule on October 12, 2004, at 69 FR 
60541 requiring all borrowers to maintain an Emergency Response Plan 
(ERP) that details how the borrower will restore its system in the 
event of a system-wide outage resulting from a major natural or manmade 
disaster or other causes. This ERP requirement was not entirely new to 
the borrowers, as RUS had recommended similar ``plans'' in the past. 
However, the need for an ERP requirement at that time was catalyzed by 
increased sensitivities relating to homeland security.
    The purpose of the FEMA Public Assistance Grant Program is to 
provide assistance to State, Tribal, and local governments, and certain 
types of private non-profit organizations so that communities can 
quickly respond to and recover from major disasters or emergencies 
declared by the President.
    Recent FEMA audits conducted on applications submitted by RUS 
borrowers have shown that borrowers have not always followed the 
policies and procedures set forth by FEMA for disaster related repairs 
and restoration. FEMA recently created a draft document titled ``FEMA 
Disaster Assistance Fact Sheet 9580.6 (Electric Utility Repair (Public 
and Private Nonprofit)). This document contains sections on 
contracting, category of work, conductor replacement, hazard 
mitigation, and repair of collateral damage that outline

[[Page 47056]]

FEMA requirements in these areas. It is financially advantageous for 
borrowers to qualify and receive disaster assistance funds for eligible 
work from FEMA in the event of a declared disaster or emergency. When 
RUS borrowers do not meet FEMA Public Assistance Grant eligibility 
requirements, they will be ineligible to receive disaster assistance 
funds.
    Accordingly, the Agency published a proposed rule on January 26, 
2010, at 75 FR 4006 proposing to amend the ERP regulatory requirements 
to add that the ERP reflect compliance with all requirements imposed by 
FEMA for reimbursement of the cost of repairs and restoration of the 
borrower's electric system incurred as the result of a declared 
disaster.

Discussion of Comments and Changes

    RUS received one submission electronically on this proposed rule by 
the March 29, 2010, comment deadline. The submission was received from 
the National Rural Electric Cooperative Association (NRECA). The 
submission is summarized below with the Agency's responses as follows:
    Issue 1: Commentor proposed modifying the rule as proposed to add a 
cost/benefit consideration.
    Response: The Agency accepts the observation that there are costs 
to compliance. Money and time spent, delay in service restoration, and 
the possibility of consumer dissatisfaction in an extended outage are 
relevant in power restoration decisions and sometimes any additional 
costs of complying with FEMA's eligibility rules may outweigh the 
benefits of federal financial assistance for reimbursement and support 
a decision by a borrower to elect to pursue an alternative to 
competitively bidding a restoration job as generally required by FEMA. 
The final rule as published permits the borrower to make such a 
determination. The rule only requires the borrower develop a plan to 
comply with the FEMA requirements and be eligible to apply for FEMA 
assistance.
    Issue 2: Commentor proposed a clarifying change that identifies the 
borrower, rather than the ERP, as the subject that ``must comply with'' 
FEMA reimbursement rules.
    Response: Agency concurs. This clarification is intended to avoid 
an interpretation that would require the ERP to contain a mini manual 
of how to comply with the FEMA rules.

List of Subjects in 7 CFR 1730

    Electric power; Loan program--energy; Reporting and recordkeeping 
requirements; Rural areas.

    For reasons discussed in the preamble, the Agency amends 7 CFR, 
Chapter XVII, part 1730 as follows:

PART 1730--ELECTRIC SYSTEM OPERATIONS AND MAINTENANCE

0
1. The authority citation for part 1730 continues to read as follows:

    Authority: 7 U.S.C. 901 et seq., 1921 et seq., 6941 et seq.


0
2. Amend Sec.  1730.28 as follows:
0
a. Remove the word ``and'' from the end of paragraph (e)(4);
0
b. Redesignating paragraph (e)(5) as (e)(6); and
0
c. Add paragraph (e)(5) to read as follows:


Sec.  1730.28  Emergency Restoration Plan (ERP).

* * * * *
    (e) * * *
* * * * *
    (5) A section describing a plan to comply with the eligibility 
requirements to qualify for the FEMA Public Assistance Grant Program; 
and
* * * * *

    Dated: July 22, 2011.
Jonathan Adelstein,
Administrator, Rural Utilities Service.
[FR Doc. 2011-19661 Filed 8-3-11; 8:45 am]
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